Shervin v. Partners Healthcare Sys., Inc.

• Decision Date: 09 October 2015
• Docket Number: No. 14–1651.,14–1651.
• Citation: 804 F.3d 23
• Parties: Nina SHERVIN, M.D., Plaintiff, Appellant, v. PARTNERS HEALTHCARE SYSTEM, INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

804 F.3d 23

Nina SHERVIN, M.D., Plaintiff, Appellant

v.PARTNERS HEALTHCARE SYSTEM, INC., et al., Defendants, Appellees.

No. 14–1651.

United States Court of Appeals, First Circuit.

Oct. 9, 2015.

Ellen Jane Zucker, with whom Burns & Levinson LLP was on brief, for appellant.

Nancy Gertner, Emma Quinn–Judge, Zalkind Duncan & Bernstein LLP, Nina Joan Kimball, Kimball Brousseau LLP, Michaela May, and Law Office of Michaela C. May on brief for American Civil Liberties Union of Massachusetts, Charles Hamilton Houston Institute for Race and Justice, Massachusetts Employment Lawyers Association, Massachusetts Law Reform Institute, Jewish Alliance for Law and Social Action, Union of Minority Neighborhoods, and Gay & Lesbian Advocates & Defenders, amici curiae.

Thomas A. Reed, with whom Herbert L. Holtz, Eugene J. Sullivan III, and Holtz & Reed, LLP were on brief, for appellees Partners Healthcare System, Inc. and Massachusetts General Hospital Physicians Organization.

John Patrick Coakley, with whom Stephen D. Coppolo and Murphy & Riley, P.C. were on brief, for appellee Harvard Medical School.

Robert E. Burgess, with whom Edward F. Mahoney and Martin, Magnuson, McCarthy & Kenney were on brief, for appellee Harry E. Rubash, M.D.

Rebecca J. Wilson, with whom Kiley M. Belliveau and Peabody & Arnold LLP were on brief, for appellee James H. Herndon, M.D.

Before KAYATTA, SELYA and DYK,^* Circuit Judges.

Opinion

SELYA, Circuit Judge.

Plaintiff-appellant Nina Shervin, M.D., secured admission to one of the country's most prestigious orthopedic residency programs. When she was placed on academic probation, she concluded that her superiors were discriminating against her based on her gender and thereafter began retaliating against her because she had dared to challenge the probation decision. Bent on vindicating these suspicions, Dr. Shervin repaired to the federal district court and sued a gallimaufry of defendants, asserting claims under both state and federal law.

The district court whittled down Dr. Shervin's suit during pretrial proceedings, and a 26–day jury trial ensued. The jury returned an across-the-board verdict for the defendants. Dr. Shervin appeals, asseverating that the district court miscalibrated the statute of limitations, improperly denied recusal, made several untoward evidentiary rulings, and committed instructional errors. After careful consideration of her asseverational array, we find no reversible error and, therefore, affirm the judgment below.

I. BACKGROUND

We sketch the genesis and travel of the case, reserving a more exegetic discussion of the facts until our appraisal of the issues raised on appeal.

In 2003, Dr. Shervin began her post-graduate training in the Harvard Combined Orthopedics Residency Program (HCORP or the program). The program is sponsored by Massachusetts General Hospital (MGH), and training takes place at four Harvard-affiliated teaching hospitals: MGH, Brigham and Women's Hospital (the Brigham), Children's Hospital, and Beth Israel Deaconess Medical Center (BIDMC). MGH and the Brigham are both under the corporate umbrella of Partners HealthCare System, Inc. (Partners). During her five-year residency, Dr. Shervin was nominally an employee of Partners and worked under an employment contract with that entity.

HCORP is governed by an executive committee comprised of its director and the chiefs of the orthopedics departments at the four participating hospitals. During the times relevant hereto, Dr. James H. Herndon served as the program's director and Dr. Harry E. Rubash served as the chief of orthopedics at MGH. Both of these physicians were employed at MGH through a private, non-profit corporation, Massachusetts General Hospital Physicians Organization (MGPO), and held facultyappointments at Harvard Medical School (Harvard).

Mid-way through the fourth year of her residency, Dr. Herndon placed Dr. Shervin on academic probation—a decision Dr. Shervin soon came to regard as motivated by gender bias. She asserts that, after she challenged the decision internally, she was subjected to further discrimination and an onslaught of retaliation that plagued her throughout her training and followed her as she pursued job opportunities throughout Massachusetts.

On October 26, 2009, Dr. Shervin filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) against Partners, Harvard, Dr. Herndon, and Dr. Rubash. The MCAD later dismissed the charge without prejudice upon receiving Dr. Shervin's notification that she had elected to pursue her claims in court. See Mass. Gen. Laws ch. 151B, § 9. In April of 2010, she sued in the federal district court, asserting state-law claims of unlawful discrimination and retaliation against Partners, MGPO, Harvard, Dr. Herndon, and Dr. Rubash; federal-law claims of discrimination and retaliation against Partners, MGPO, and Harvard; and common-law claims of tortious interference with advantageous business relations against Partners and Drs. Herndon and Rubash.

After extensive discovery, the defendants moved for summary judgment on all of the claims, arguing that many were time-barred and that the remainder were foreclosed on other grounds. The district court granted partial summary judgment with respect to the discrimination and retaliation claims, ruling that (for all defendants except Harvard) conduct occurring prior to June 5, 2008 could not serve as a basis for liability or damages. See Shervin v. Partners Healthcare Sys., Inc., 2 F.Supp.3d 50, 72 (D.Mass.2014). The court fixed this date based on the applicable 300–day statute of limitations under federal and state discrimination laws, see 42 U.S.C. § 2000e–5(e)(1) ; Mass. Gen. Laws ch. 151B, § 5, and a tolling agreement establishing a constructive filing date for Dr. Shervin's suit of April 1, 2009. Harvard was not bound by the tolling agreement, and the district court fixed its limitations date at December 30, 2008. See Shervin, 2 F.Supp.3d at 72. The court was quick to add, however, that “while the [d]efendants may not be found liable for conduct outside the limitations period,” the “jury may still be permitted to consider untimely ‘background evidence’ in assessing the viability of the actionable discrimination and retaliation claims.” Id. at 71 n. 10. The court denied the summary judgment motions in all other respects. See id. at 80.

After a lengthy trial, the jury returned a take-nothing verdict. This timely appeal followed.

In this court, Dr. Shervin musters a plethora of claims of error. We consider them in roughly the same order as the underlying events occurred below.

II. THE SUMMARY JUDGMENT RULING

Dr. Shervin's flagship claim is that the district court erred in its application of Massachusetts law, leading it to conclude that certain alleged acts of discrimination and retaliation were time-barred. We preface our discussion of this issue with a brief account of the pertinent facts, taking them in the light most favorable to the non-moving party (here, Dr. Shervin). See Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir.2005).

A.

Dr. Shervin initially did well in her residency and received positive evaluations from her supervisors. In early 2007, however, Dr. Herndon received a complaint from an orthopedics fellow about Dr. Shervin's recent performance in the program. The fellow raised specific patient care issues and expressed concerns regarding Dr. Shervin's professionalism and technical competence. On February 2, 2007, Dr. Herndon met with Dr. Shervin and communicated these concerns to her. At the end of the meeting, he placed her on academic probation, telling her that probation could have a serious effect on her licensure, her upcoming fellowship,¹ and her ability to find a job.

A follow-up letter, dated March 7, outlined the terms of the probation, including monthly performance evaluations; increased monitoring; mandatory attendance at all educational components of the program; and a ban on moonlighting. The letter warned that if Dr. Shervin's performance continued to deteriorate, she could be exposed to further discipline, including dismissal from the program.

Around the same time, Dr. Herndon told Dr. Shervin's mentor, Dr. Dennis Burke, that the reason he (Dr. Herndon) had gone directly to probation without first issuing a warning or undertaking counseling was due to Dr. Shervin's stoic response to his concerns; he added that, in his 35 years of supervising residents, he had never before disciplined a woman resident and not seen her cry. Based largely on this comment, and on her perception that immediate probation was not standard practice in HCORP, Dr. Shervin concluded that Dr. Herndon's rush to judgment had been motivated by gender bias (specifically, his “stereotypical attitude” toward women and her failure to “behave in the way that Dr. Herndon expected [her] to behave”).

Dr. Shervin voiced her concerns to Dr. Rubash in March of 2007. According to Dr. Shervin, Dr. Rubash expressed surprise at Dr. Herndon's decision to impose academic probation without consulting HCORP's executive committee. But he then asked rhetorically if she wanted to graduate from the program and admonished her not to think of “ever filing” suit against him, Dr. Herndon, or the program because doing so would not be beneficial to her career.

In Dr. Shervin's view, this incident marked the beginning of a steady stream of retaliatory and discriminatory acts that clouded the remainder of her residency. These acts included the zealous solicitation of negative comments about her by Drs. Herndon and Rubash.

In late March of 2007, Dr. Shervin requested a review of the probation decision by the executive committee. The committee upheld the decision in early June. Dr. Shervin contends that the review process was incomplete, biased, and lacking in basic procedural safeguards. She also alleges that, shortly after this review concluded, a member of the executive committee (Dr. Mark Gebhardt) told Dr. Burke that Dr. Shervin “needs...