656 F.3d 33 (1st Cir. 2011), 08-2026, Tuli v. Brigham & Women's Hosp.

Docket Nº:08-2026, 09-1597, 09-1603, 09-1731.
Citation:656 F.3d 33
Opinion Judge:BOUDIN, Circuit Judge.
Party Name:Sagun TULI, Plaintiff, Appellee/Cross-Appellant, v. BRIGHAM & WOMEN'S HOSPITAL; Arthur Day, M.D., Defendants, Appellants/Cross-Appellees.
Attorney:John P. Ryan with whom Myles W. McDonough, John A. Donovan, III, Nicholas W. Schieffelin and Sloane & Walsh, LLP were on brief for defendant, appellant/cross-appellee Arthur Day, M.D. Robert R. Hamel, Jr. with whom John J. Reardon, Matthew Grygorcewicz and Melick, Porter & Shea, LLP were on brief...
Judge Panel:Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.
Case Date:August 29, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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656 F.3d 33 (1st Cir. 2011)

Sagun TULI, Plaintiff, Appellee/Cross-Appellant,


BRIGHAM & WOMEN'S HOSPITAL; Arthur Day, M.D., Defendants, Appellants/Cross-Appellees.

Nos. 08-2026, 09-1597, 09-1603, 09-1731.

United States Court of Appeals, First Circuit.

August 29, 2011

Heard Feb. 8, 2011.

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John P. Ryan with whom Myles W. McDonough, John A. Donovan, III, Nicholas W. Schieffelin and Sloane & Walsh, LLP were on brief for defendant, appellant/cross-appellee Arthur Day, M.D.

Robert R. Hamel, Jr. with whom John J. Reardon, Matthew Grygorcewicz and Melick, Porter & Shea, LLP were on brief for defendant, appellant/cross-appellee Brigham & Women's Hospital, Inc.

Michael S. Bonner and Gregory J. Aceto with whom Johnson & Aceto, LLP was on brief for plaintiff, appellee/cross-appellant.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

Now before us are four appeals in a case brought by Dr. Sagun Tuli, a female neurosurgeon, against her employer Brigham and Women's Hospital (" the Hospital" ) and her former co-worker and supervisor Dr. Arthur Day. The first appeal was by the Hospital from a preliminary injunction sought and obtained by Tuli; the three more recent appeals followed a jury verdict awarding Tuli damages against the defendants and a permanent injunction crafted by the district judge.

In 2002, the Hospital hired Tuli as an associate surgeon in the Department of Neurosurgery and Day as residency director and vice chairman of the department. In 2002 and 2003, Tuli was made the department's professionalism officer and representative to the Hospital's Quality Assurance and Risk Management Committee (" QARM" ), which required her to investigate and in some cases report on other doctors' case complications. In 2004, the departure of two colleagues left Tuli as the sole spine surgeon; she says that, unlike prior male doctors, she was not promoted to the position of Director of Spine.

Most of Tuli's claims stem from her interactions with Day, who became her supervisor when he was promoted to chair the department in 2007. As QARM representative, Tuli was asked to investigate three of Day's cases, which ultimately were reported to the state's Board of Registration of Medicine. Tuli alleged that Day's behavior toward women has been consistently inappropriate and demeaning. Starting in 2005 and continuing until 2007, Tuli began to bring her concerns about Day to Dr. Anthony Whittemore, the chief medical officer of the Hospital.

Tuli herself exchanged cross-charges with a resident in 2005. He accused her of threatening his job after he told Day that she was upset by Day's decision to operate on one of her patients against her wishes; Tuli accused the resident of mismanaging one of her patients by failing to check blood work, leading to a complication requiring urgent care. Tuli also received a number of patient complaints in 2006 and 2007, primarily concerning her attitude and communication skills.

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Tuli's medical staff credentials were due for review by the Hospital's credentials committee in October 2007. Day presented Tuli's case to the committee, stating that she had mood swings, that twenty to thirty members of the operating room staff did not want to work with her, and that she would benefit from anger management training. The committee then conditioned Tuli's reappointment on obtaining an evaluation within four months by an outside agency called Physician Health Services (" PHS" ) and agreeing to comply with its recommendations.

After concerns were raised about the lack of specificity of Day's presentation, the committee had Whittemore re-present Tuli's case at a December 2007 meeting; Whittemore provided a somewhat more balanced opinion, but mostly rehashed the issues Day had discussed during the earlier meeting and did not tell the committee of Tuli's prior complaints against Day. The committee affirmed its earlier decision. Near the end of December, Tuli filed the present lawsuit and sought a preliminary injunction to prevent loss of her privileges during the pendency of the case.

Under both federal and state law, Tuli's complaint charged the Hospital and Day with gender discrimination through both disparate treatment and a hostile work environment,1 retaliation,2 and violation of Massachusetts' Health Care Whistleblower Act.3 It also charged the Hospital with equal pay violations under both federal and state law 4 and Day with intentional interference with advantageous relations and slander.

The district court granted the preliminary injunction, which the Hospital appealed; shortly thereafter the trial resulted in a jury decision favorable to Tuli in most respects, which then led to a permanent injunction. This court then deferred action on the original appeal, anticipating that it would be mooted by the superceding permanent injunction. When the Hospital said that attorneys' fees might be affected by the resolution of the appeal on the original injunction, we instead consolidated the old appeal with the new appeal from the final judgment.

The jury awarded Tuli $600,000 against the Hospital in compensatory damages on the retaliation claim; $1,000,000 in compensatory damages against it on the hostile work environment claim; $20,000 in damages against Day for economic harm on the interference claim; and nominal damages for the whistleblower claim against the Hospital, the slander claim against Day, and non-economic harm from the interference claim against Day. Tuli lost her discriminatory disparate treatment and unequal pay claims. Both sides have now appealed from the final judgment.

Hostile work environment. In contesting the award on the hostile work environment claim, the Hospital makes four different arguments. We begin with the contention that the claim failed as a matter of law. Our review on such issues is de novo, but the evidence is taken in the light most favorable to the verdict. Monteagudo v. Asociacion de Empleados del Estado Libre Asociado de P.R., 554 F.3d 164, 170 (1st Cir.), cert. denied, __ U.S. __, 130 S.Ct. 362, 175 L.Ed.2d 31 (2009).

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To prevail on such a claim based on gender discrimination, Tuli had to offer evidence to show that

(1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based upon gender; (4) the harassment was sufficiently severe or pervasive that it altered the conditions of her employment and created an abusive working environment; (5) the offending conduct was both objectively and subjectively offensive; and (6) some basis for employer liability has been established.

Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803, 808 (1st Cir.2011) (citing Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir.2007)).

Assuming admissibility, the evidence was ample. The primary actors, in Tuli's account, were Day and another doctor— Dr. Dong Kim— who like Day is no longer at the Hospital. Kim's conduct, according to testimony set forth below that the jury could have accepted, was blatantly sexist and offensive; Day's, according to other evidence, sufficiently demeaning to a female surgeon as to be unlawful. Because chronology is pertinent, the principal episodes are set out in a time line:

2002-03: Day ignores Tuli at conferences by stating, " [L]et's ask the spine guys, Eric and Marc, what they think," and omitting her despite the fact that she is also a spine surgeon.

2004: At a graduation dinner and in front of a female resident, Day asks Tuli, " Can you get up on the table to dance so you could show them how to behave."

2004: In the summer, Tuli attends a bachelorette party for a coworker and sees a blow-up doll with a picture of her face attached to it.

2004: Day makes comments on different occasions: " You're just a little girl, you know, can you do that spine surgery?" " Oh, girls can do spine surgery?" " Are you not strong enough to use the hand instruments?"

2005: In February or March 2005, with his arm on Tuli's back, Kim says, " Why don't we leave this place and go to the Elliott Hospital so I can give you an oral exam" ; " I think you're really hot" ; and " I imagine you naked."

2005: Early in 2005, Day sits in on Tuli's teaching conference and disagrees with Tuli's lecture. He does this more than once, and Tuli does not believe that he did so during male doctors' teaching conferences.

2005: Residents, who are supervised by Day as residency director, ignore Tuli's pages, fail to assist her on rounds, and fail to show up for clinical duties. In the summer, Tuli notices that she is given less-experienced, junior residents for her cases.

6/05: Tuli becomes aware of a Hospital-affiliated party planned with " strippers and cages and beer kegs." Although it was supposed to celebrate the incoming chief residents, a new female chief resident was excluded. Day approves of the party and of outside funding for it.

2005: In September or October, Day and Tuli meet to clear the air, and Day says, " Our relationship is like that of lovers and you've cheated on me," with his hand on her arm; he also calls her " deranged." When she attempts to shake his hand at the end of the meeting around 10:00 p.m., he gives her a prolonged hug.

11/05: A resident throws Tuli into the scrub sink and then the garbage.

12/06: Kim states, " Oh, could you wear one of those belly dancing outfits and show us a dance?"

2007: Kim states that he would " like to have the opportunity to sexually harass"

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Tuli; Tuli observes him fondling a physician...

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