Brader v. Biogen Inc.

• Citation: 983 F.3d 39
• Decision Date: 18 December 2020
• Docket Number: No. 19-1268,19-1268
• Parties: Mark BRADER, Plaintiff, Appellant, v. BIOGEN INC., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

983 F.3d 39

Mark BRADER, Plaintiff, Appellant,

v.BIOGEN INC., Defendant, Appellee.

No. 19-1268

United States Court of Appeals, First Circuit.

December 18, 2020

Jeremy Y. Weltman, Cambridge, MA, with whom Matthew F. Renna, Boston, MA, and Hermes, Netburn, O'Connor & Spearing P.C. were on brief, for appellant.

Jonathan R. Shank, with whom Jeffrey S. Brody, Boston, MA, and Jackson Lewis P.C. were on brief, for appellee.

Before Lynch, Lipez, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Plaintiff-appellant Dr. Mark Brader appeals the district court's award of summary judgment to his former employer, defendant-appellee Biogen, Inc., on his claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 - 12213 (2009) ("ADA"), and its Massachusetts analog, Mass. Gen. Laws ch. 151B, § 4 ("Chapter 151B").¹ Relevant to the instant appeal, the district court found that certain alleged discriminatory treatment Brader experienced during his employment fell outside the applicable statute of limitations and no equitable exceptions to the limitations period applied. See Brader v. Biogen Inc., 362 F. Supp. 3d 25, 38-40 (D. Mass. 2019). After whittling the timeline of alleged actionable conduct to events that occurred within the limitations period, the district court concluded, as is relevant to our work on appeal, that the undisputed material facts did not raise a reasonable inference of employment discrimination under federal or state law. Seeing no reversible error, we affirm.

I. GETTING OUR FACTUAL BEARINGS

We rehearse the facts in the light most favorable to Brader (the nonmovant), resolving all reasonable inferences in his favor, consistent with record support. See Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1, 4, 8 (1st Cir. 2017) (citing Alfano v. Lynch, 847 F.3d 71, 74 (1st Cir. 2017) ); Murray v. Warren Pumps, LLC, 821 F.3d 77, 82 (1st Cir. 2016) (citing Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012) ). As a full-throated telling of Brader's factual assertions is necessary to understanding his claims on appeal and our resolution thereof, we beg the reader's patience as we plow ahead.

Biogen is a pharmaceutical company that develops, markets, and manufactures therapies for people living with serious neurological, autoimmune, and rare diseases. Biogen's employees are governed by the company's Values in Action Code of Business Conduct, Non-Discrimination and Non-Harassment Policy, and its Americans with Disabilities Act Non-Discrimination and Accommodation Policy, which together memorialize Biogen's commitment to maintaining a harassment, discrimination, and retaliation free work environment.²

Brader, a pharmaceutical scientist by trade, worked for Biogen from October 8, 2007 until his termination on November 6, 2015. At all times relevant to this appeal, Brader was employed as a principal scientist within Biogen's Protein Pharmaceutical Development ("PPD") group, i.e., a group that develops new drug candidates for Biogen. Brader reported to Dr. Andrew Weiskopf, one of PPD's directors. Weiskopf, in turn, reported to Jessica Ballinger, the Senior Director responsible for PPD. Ballinger's supervisor, Dr. Alphonse Galdes, served as the Senior Vice President of the Technical Development department.

Nearly seven years into his employment at Biogen, on or around June 30, 2014, Brader experienced what he has described as an "acute mental episode." Because the events leading up to and surrounding Brader's mental health crisis provide the landscape for our review of his claims on appeal, that's where we begin our recap of relevant events.

A. Brader's June 2014 Presentation and Performance Review

On June 18, 2014, Brader presented his research on "recent advances in the measurement and interpretation of protein conformational stability" at a routine PPD meeting attended by senior management. Brader viewed his presentation as an important opportunity for his career because he believed he was being considered for a mid-year promotion to director in the "June/July [2014] time frame."³

Handwritten notes from Brader's employee file,⁴ dated September 2, 2014, suggest that he was on a mid-year "promotion list" compiled on or around June 16, 2014,⁵ and that a "promotion meeting" convened by Galdes took place on June 19, 2014 (the day after Brader's presentation).⁶

On the same day as Galdes' promotion meeting, Dr. Mariana Dimitrova (a director in PPD) sent an email to Brader's immediate supervisor, Weiskopf, and PPD's senior director, Ballinger, in which she expressed concerns about Brader's presentation and underlying research. In her email, Dimitrova criticized the accuracy, complexity, and impact of Brader's research, and she suggested that his presentation did not align with PPD's vision, platform, and "core capabilities." Weiskopf emailed in response that he agreed with "much of" Dimitrova's concerns and promised to "share his thoughts" with Brader during their one-on-one mid-year performance meeting scheduled for the next day.

As planned, Weiskopf and Brader met to discuss the latter's evaluation. During the meeting, Weiskopf leveled criticism at Brader's presentation to PPD. Weiskopf called the presentation "terrible" and denounced the "harmful" and inappropriate "views and agenda" espoused therein. As Brader tells it, Weiskopf did not provide any "constructive" feedback during their hour-long meet-up; instead, he intentionally "taunt[ed]" Brader with "nonsensical" criticism of his presentation. Because Brader felt there was "no good reason" for Weiskopf's harsh critique, he left their meeting feeling confused and upset.

A few days later, on June 24, 2014, Brader emailed Weiskopf to express his concerns about the feedback he had received. Brader stated that he did not understand why Weiskopf had an issue with the "views and agenda" underlying his "clearly technical presentation." Brader also described Weiskopf's feedback as "troubling" and abnormal by Biogen's standards. He then requested another one-on-one meeting with Weiskopf so he could better understand Weiskopf's perspective. Brader noted, in addition, that he would be reaching out to Ballinger (Weiskopf's direct supervisor) for "help" as well. Weiskopf obliged Brader's meeting request, and the pair agreed to convene again a couple days later.

According to Brader, during the follow-up meeting on June 26, 2014, Weiskopf again called his presentation "terrible" and also "insult[ing]," which Brader believed was "inappropriate." Nevertheless, the next day, Brader thanked Weiskopf via email for meeting with him again and stated that he planned to ask Ballinger for feedback "soon."

Then, on Sunday, June 29, 2014, Brader emailed Weiskopf again, seeking "a few minutes" of his time in order to resolve what Brader described as the "feedback matter." Weiskopf suggested that Brader meet him in his office during business hours the next morning. Less than ten minutes after emailing Weiskopf, Brader sent a separate email to Ballinger with the subject line "utmost importance and private." In the body of his email, Brader reported that he and Weiskopf had had a "very robust conversation" about his mid-year performance evaluation, and he asked whether Ballinger was able to meet with him the next day to provide her perspective on Weiskopf's feedback. Brader concluded his email to Ballinger by stating that he could perhaps resolve the "whole ‘misunderstanding’ " by deploying his "Ghandi"-like conflict management skills.

Several hours later, Brader (coincidentally) ran into Ballinger on a walking path in their shared neighborhood. Brader and Ballinger paused their respective walks to catch up with one another on life outside of work. According to Ballinger, as their conversation progressed, she became concerned that something was off about Brader. Ballinger testified that Brader was uncharacteristically "stressed," "agitated," and "not himself." Later that night, Ballinger responded to Brader's email request for a meeting from earlier that day. She explained to Brader that she was aware of his discussions with Weiskopf and presumed there was a "big misunderstanding." She agreed to meet with Brader on Monday, June 30, 2014, and she advised him not to stress about Weiskopf's feedback in the meantime. Ballinger forwarded her email correspondence with Brader to Weiskopf along with a recommendation that they also meet given Brader's "strangely written" email. Ballinger testified that Brader's odd behavior and email prompted her to alert HR when she returned to work on Monday.

B. Brader's Safety Concerns

On Monday morning, June 30, 2014, Brader went to Weiskopf's office as scheduled to rehash his objections to Weiskopf's criticism. This time around, according to Brader, he demanded that Weiskopf "stop harassing" him and objected to Weiskopf's "inappropriate and untruthful criticism" of his presentation. Weiskopf purportedly disagreed with Brader's characterization of his conduct and feedback. At some point during the meeting, Brader excused himself and returned a few minutes later with two colleagues⁷ because (pursuant to his deposition testimony) he "didn't feel safe," believing Weiskopf was "deliberately targeting" and humiliating him as part of a "malicious personal issue or vendetta."⁸ Brader also testified that he was concerned for his physical safety because of Weiskopf's "body language," "hostile persona," and unwillingness to change his opinion on Brader's presentation.⁹

Ballinger, as requested, met Brader later that day at a Starbucks on Biogen's campus.¹⁰ Brader denounced Weiskopf's criticism as having "cross[ed] the line" into harassment territory. He then made a "formal complaint that [Weiskopf's] conduct toward [him] violated Biogen's harassment policy." According to Brader, Ballinger did not seem to be taking his expressed complaint seriously.

Ballinger's account of their meeting differs markedly from Brader's: he...