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Shervin v. Partners Healthcare System, Inc.

United States Court of Appeals, First Circuit

October 9, 2015

NINA SHERVIN, M.D., Plaintiff, Appellant,

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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.


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8SELYA, 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.


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 faculty

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appointments 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.


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).


Dr. Shervin initially did well in her residency and received positive evaluations

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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 to get her head screwed on and realize that she is a woman in a man's specialty" and " suck it up."

In late June of 2007, Dr. Herndon and the executive committee extended Dr. Shervin's probation for three more months based on allegations of poor performance on a rotation at another hospital. Dr. Shervin says that these allegations were unsubstantiated. She adds that, throughout the summer of 2007, the defendants repeatedly tried to find fault with her performance and solicited negative evaluations of her work. By September, she felt " threatened[,] unsafe[, and] harassed."

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About the time that Dr. Shervin's extended probation ended in September of 2007, Dr. Herndon was replaced as her residency program director (though he remained the director of the overall residency program and a member of HCORP's executive committee). She nevertheless complains that retaliation persisted through her graduation from the program in June of 2008.[2]

There was more. Dr. Shervin complains that, from July of 2007 to April of 2008, officials of both Harvard and Partners falsely assured her that her probation would not need to be reported outside the program (such as to state licensing authorities or prospective employers). These assurances, she says, discouraged her from immediately pursuing her grievance rights within the program. Moreover, the assurances were not true; her probation resulted in both a delay in the issuance of her license to practice medicine and the issuance of only a limited license in her fellowship year.[3]

According to Dr. Shervin, retaliatory acts continued even after her residency ended. For one thing, she says that the formal grievance process that she undertook in 2008 and 2009 (which resulted in an affirmation of the probation decision) was marred by bias, falsehoods, and insufficient procedures. For another thing, she says that the defendants deliberately blocked her from at least three job opportunities in Massachusetts hospitals during the 2009-2012 time frame.


With this factual predicate in mind, we turn to the merits of the district court's summary judgment ruling. We review that determination de novo. See Noviello, 398 F.3d at 84. To avoid " the swing of the summary judgment scythe," Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003), the nonmoving party (here, Dr. Shervin) bears the burden of pointing to admissible evidence showing the existence of a genuine issue of material fact, see Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). The non-movant may not rely on " conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

In this case, the court below considered full briefing and heard protracted arguments on the motions for summary judgment. It concluded that all conduct predating June 5, 2008 (or December 30, 2008 for Harvard) was time-barred as a basis for either finding liability or awarding damages on the discrimination and retaliation claims. See Shervin, 2 F.Supp.3d at 72; see also 42 U.S.C. § 2000e-5(e)(1) (setting forth applicable 300-day statute of limitations); Mass. Gen. Laws ch. 151B, § 5 (similar). The court then entered partial summary judgment to this effect, leaving open Dr. Shervin's other claims. The court's ruling allowed Dr. Shervin to introduce, as context evidence, proof about how she was placed on probation and the time-barred acts of alleged retaliation. See id. at 71 n.10.

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Before us, Dr. Shervin argues that the district court erred in calibrating the statute of limitations for her discrimination and retaliation claims. As a threshold matter, she insists that her claims did not accrue until the probation hindered her ability to obtain a medical license in the summer of 2008. We do not agree.

Under both federal and state law, a cause of action for discrimination or retaliation accrues when it has a crystallized and tangible effect on the employee and the employee has notice of both the act and its invidious etiology. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 50 (1st Cir. 1999); Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 636 N.E.2d 265, 268 (Mass. 1994); Adamczyk v. Augat, Inc., 52 Mass.App.Ct. 717, 755 N.E.2d 824, 829 (Mass.App.Ct. 2001). Here, Dr. Shervin was convinced from the outset that discrimination and retaliation were at work. Thus, her thesis boils down to a contention that the probation decision had no tangible, concrete effect either on her career or her employment as a medical resident until mid-2008.

This contention is untenable. As no less an authority than the Supreme Court has stated, " [t]he proper focus" for determining when a cause of action accrues for limitations purposes " is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (emphasis omitted) (quoting Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979)); accord Sch. Comm. of Brockton v. MCAD, 423 Mass. 7, 666 N.E.2d 468, 472 n.8 (Mass. 1996).

It is nose-on-the-face plain that Dr. Shervin had notice almost immediately after being placed on probation that this disciplinary action was both tangible and concrete: her probation was unconditional and instantly resulted in the imposition of a series of burdensome conditions (such as heightened supervision, more frequent evaluations, and a ban on any outside work). Moreover, context is always important -- and it is significant that the probation here occurred in the course of a prestigious and highly competitive academic medicine residency at a world-famous group of teaching hospitals. In that milieu, probation was not -- as Dr. Shervin would now have us believe -- akin to sending a high school student to after-class detention. Rather, it was an ugly blot on an otherwise glittering record of accomplishment -- and something to be taken quite seriously.

Indeed, both Dr. Shervin and her mentor, Dr. Burke, recognized the gravity of the probation placement immediately. That was why, from the very outset, Dr. Shervin fought so hard to reverse or expunge it. Given the record in this case, it strains credulity to suggest that probation was something to be taken lightly.[4]

Dr. Shervin's self-serving averments regarding assurances about the innocuous

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long-term effects of her probation do not alter our conclusion. During the period of roughly 300 days from the time her probation was imposed until November of 2007, virtually all of the information that Dr. Shervin received about the reporting of probation pointed unerringly in the opposite direction. For example, Dr. Herndon informed her from the very beginning (both orally and in writing) that probation could have a significant negative impact on her licensure, board certification, and job prospects. So, too, Dr. Burke -- as early as April of 2007 -- expressed his deep concern about the long-term effects of probation, writing to HCORP's executive committee that " probation, if allowed to stand, is such a serious disciplinary action that it will be required to be reported on every job or fellowship application and on every state licensure renewal." Dr. Shervin does not deny that she knew about this letter and its contents. To round out the picture, the Director of the Office of Women's Careers at MGH warned Dr. Shervin in July of 2007 that probation " MAY need to be reported" depending on the specific questions asked on state or hospital licensing forms.

To be sure, in November of 2007, MGH's chief medical officer (Dr. Britain Nicholson) asked Dr. Burke to advise Dr. Shervin that she should just " accept the probation" since it was an internal matter that did not need to be reported externally. He emphasized that her probation ought not to be the focus of future references. But that opinion, standing alone, did not erase the very real effects that probation already had wrought on the terms and conditions of Dr. Shervin's residency. See, e.g., Miller v. N.H. Dep't of Corr., 296 F.3d 18, 22 (1st Cir. 2002). Nor was there a reasonable basis for believing that persons who might subsequently be tasked with writing references would see the matter the same way; there were simply too many contrary indications. Under these circumstances, the evidence about what was said to Dr. Burke in November of 2007 was not significantly probative as to whether the alleged discrimination was likely to cease and, therefore, could not defeat summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The short of it is that Dr. Shervin's knowledge of the probation and its immediate, tangible effects, together with her loudly bruited belief that the probation decision was a form of disparate discipline motivated by gender discrimination, is all that was needed for her cause of action to accrue and the limitations clock to begin to ...

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