Tuli v. Brigham & Women's Hosp., Inc.

• Decision Date: 02 July 2008
• Docket Number: Civil Action No. 07cv12338-NG.
• Citation: 566 F.Supp.2d 32
• Parties: Sagun TULI, M.D., Plaintiff, v. BRIGHAM & WOMEN'S HOSPITAL, INC., and Arthur Day, M.D., Defendants.
• Court: U.S. District Court — District of Massachusetts

566 F.Supp.2d 32

Sagun TULI, M.D., Plaintiff, v. BRIGHAM & WOMEN'S HOSPITAL, INC., and Arthur Day, M.D., Defendants.

Civil Action No. 07cv12338-NG.

United States District Court, D. Massachusetts.

July 2, 2008.

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William J. Dailey, Jr., John A. Donovan, III, Sloane & Walsh, LLP, Matthew Grygorcewicz, Robert Reid Hamel, Jr., Melick, Porter & Shea L.L.P., Boston, MA, for Defendants.

Rachel A. Lipton, Brown Rudnick, Margaret M. Pinkham, Elizabeth A. Ritvo, Brown Rudnick Berlack, Boston, MA, for Plaintiff.

MEMORANDUM AND ORDER

RE: MOTIONS FOR PRELIMINARY INJUNCTION

GERTNER, District Judge.

TABLE OF CONTENTS

                I.    INTRODUCTION ......................................................35
                II.   BACKGROUND ........................................................38
                      A. Dr Tuli and Dv. Day ............................................38
                      B. Interactions with Dr. Whittemore ...............................41
                      C. Lead up to October Credentials Committee Meeting ...............43
                      D. October Meeting ................................................44
                      E. Interim Period Between Credentials Committee Meetings ..........45
                      F. December Credentials Committee Meeting .........................46
                III.  DISCUSSION ........................................................46
                      A.  Standard ......................................................46
                      B.  Likelihood of Success on the Merits ...........................47
                          1. The McDonnell Douglas Framework ............................48
                          2. Price Waterhouse/42 U.S.C. § 2000e-2(m) ...............51
                          3. Retaliation ................................................52
                      C. Applying the Law to the Facts ..................................53
                      D. Irreparable Harm ...............................................56
                      E. Balancing the Burdens ..........................................58
                      F. Public Interest ................................................58
                IV.   CONCLUSION ........................................................59
                

I. INTRODUCTION

Plaintiff Dr. Sagun Tuli, M.D. (hereinafter "Dr. Tuli") a female spinal neurosurgeon of Indian descent, filed a five-count complaint naming as parties defendant Brigham & Women's Hospital, Inc. (hereinafter "BWH" or "Hospital") and Dr. Arthur Day (hereinafter "Dr. Day"). Dr. Tuli, who was the first and only board-certified female neurosurgeon at BWH, asserts gender discrimination claims under both Title VII and Mass. Gen. Laws ch. 151B for disparate treatment and retaliation.¹

The vast majority of Dr. Tuli's complaints center on Dr. Day and his treatment of her over a period of several years. These complaints provided the background for a Human Resources investigation in 2005, which corroborated Dr. Tuli's allegations in important respects, a formal letter of complaint in 2006, and culminated in this lawsuit in December of 2007. Earlier, in 2005 and 2007, two other female physicians (likewise of Indian descent) had also sued Dr. Day for gender discrimination.

Notwithstanding the atmosphere Dr. Tuli alleges, and her specific accusations against Dr. Day, Dr. Tuli continued to function as a neurosurgeon, and by all accounts, including defendants', an excellent one. Nothing in the record remotely challenges her skill as a neurosurgeon or her work.

Dr. Tuli's problems, according to the defendants, concerned "interpersonal issues," namely relationships with other physicians and staff, including Dr. Day. Allegations of "interpersonal issues" raised in the midst of discrimination complaints are notoriously complex and troubling. They may well be valid: A person who has been discriminated against has no license to be disruptive or abusive to her colleagues or subordinates. Alternatively, they may simply reflect discrimination by another name: The complainant is disliked precisely because she has rocked the boat.² Here, Dr. Tuli offers substantial evidence to rebut the "interpersonal problems" claims. She offers affidavits from colleagues and staff. She raises questions about Dr. Day's role as the source of information about her problems, in permitting, even encouraging, staff mistreatment of her, and in exaggerating her problems to his colleagues. She questions the fairness of the behavioral standard applied to her, i.e. whether there was one standard of behavior applied to female physicians and another to male physicians, including Dr. Day. Dr. Tuli, for example, has adduced evidence of Dr. Day's own "interpersonal problems," not merely with women physicians at the hospital but also with other staff — problems which seemed to have had little or no effect on his advancement at BWH. To be sure, as with Dr. Tuli, Dr. Day offers substantial evidence to rebut those accounts. One thing is clear: Given the present posture of the record, this case is headed for a trial on the merits.

The instant proceeding, however, concerns a single decision, a decision made by BWH's Credentials Committee in the fall of 2007 requiring Dr. Tuli to consult Physician Health Services (hereinafter "PHS") as a condition of her being recredentialed — a process essential to her privileges at the Hospital. Dr. Tuli has moved for a preliminary injunction to block implementation of this requirement.

Shortly after Dr. Day became Chair of the Neurosurgery Department (hereinafter "Department") at BWH, Dr. Tuli came up for recredentialing. Because of patient complaints in Dr. Tuli's file (which did not bear on her surgical skills and which, for the most part, were not the basis for the Credentials Committee's ultimate recommendation), BWH's Provider Services Department recommended that Dr. Tuli be presented to the Committee as a Category 2 candidate — a lower level than previously — and further noted the "possibility" that she be referred to PHS for an evaluation.

What had only been a "possibility" became a requirement after the Credentials Committee met. According to Dr. Tuli, the Committee reached this decision as a result of Dr. Day's extensive participation in the process: He was the principle presenter of Dr. Tuli's case and was the source of the accounts of her "interpersonal problems." Under the circumstances, Dr. Tuli contends, defendants cannot disentangle those portions of Dr. Day's presentation that were based on a truthful appraisal of Dr. Tuli's performance and those that were based on discriminatory (and retaliatory) animus. While some effort was made to correct Dr. Day's skewed presentation of the plaintiff in a subsequent committee meeting — in which a different physician, Dr. Anthony Whittemore (hereinafter "Dr. Whittemore"), was the presenter — those efforts were hardly sufficient.

This Court referred the case to Magistrate Judge Collings for a Report and Recommendation (hereinafter "R & R") on Dr. Tuli's preliminary injunction motion. Judge Collings issued his R & R, a meticulous opinion, on May 1, 2008, recommending the denial of the motion. Dr. Tuli timely objected, based on both the legal standard imposed and the factual record.

After a hearing, supplemental briefing, and a careful review of the record, I have come to agree with plaintiff. First, Judge Collings concluded that Dr. Tuli failed to meet the final prong of the test enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court characterized that prong very strictly: The plaintiff must show "evidence ... of such strength and quality as to permit a reasonable finding that ... [the decision] was obviously or manifestly unsupported." See Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 248 (1st Cir. 1997) (quoting Brown v. Trustees of Boston Univ., 891 F.2d 337, 346 (1st Cir. 1989)). For the reasons described below, I conclude that this is not the appropriate legal framework. When challenging a group decisionmaker — such as a tenure or credentials committee — the plaintiff can also meet the third prong of McDonnell-Douglas by showing that biased information was presented to the decisionmakers, information that substantially determined the decision of the group. When the factual record is reviewed in this light, the outcome is different.

Second, there is a better legal approach, which Magistrate Judge Collings considered in a footnote and rejected. With accusations of gender and national origin discrimination swirling around Dr. Day, the "mixed motive" paradigm, traditionally associated with Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and now embodied in 42 U.S.C.2000e-2(m), is far more appropriate. The mixed motive framework recognizes that unlawful discrimination may well enter into a given decision even while other legitimate reasons are also present.

Given the accusations against Dr. Day, which were substantial, plaintiff has shown a likelihood of success on the merits on her claim that inappropriate animus played a role in the Credentials Committee's decision. As such, the burden of proof shifts to the defendants to show that the Committee would have reached the same decision absent the presence of discriminatory animus. On this record, they cannot meet that burden. Accordingly, after considering all of the preliminary injunction factors as described below, this Court now declines to adopt the R & R and GRANTS Dr. Tuli's Motion for Preliminary Injunction (document # 32).

Several caveats: This Court understands that the defendants have an important obligation to review Dr. Tuli's credentials, as they do with any physician, and that the work of the hospital must continue. While it is surely significant that no one contests Dr. Tuli's skill as a surgeon, and that patient complaints, for the most part, were not the basis of the PHS referral, nothing stands in the way of the defendant reconvening the Committee under circumstances that do not raise the issues described in this opinion. Moreover,...