Home / News / Hostile work environment claim against hospital fails

Hostile work environment claim against hospital fails

Judge: insufficient allegations of bias

A neurologist at Boston Medical Center who claimed she was subjected to a hostile work environment did not provide sufficient evidence of a pattern of gender bias to support her claim, a Superior Court judge in Massachusetts has found.

Plaintiff Deborah Green-LaRoche, who led the hospital’s neurological intensive care team, alleged among other things that a male manager banged on a restroom door demanding she come out and speak to him, and that the same manager told her to “be quiet” during a meeting, something she apparently never heard him say to a male colleague.

She also claimed a department chief described a male doctor on her team as its “only rational member” and that her team itself — the only intensive care team in the hospital headed by a female physician — was understaffed and overworked compared to others.

The defendants argued that her claim failed on its merits under the facts as alleged.

Judge Jackie A. Cowin agreed.

“Green-LaRoche provides no specific evidence of a general pattern of gender bias at BMC,” Cowin wrote, pointing to a lack of evidence that males were treated better than she in specific respects or that she encountered statements indicating gender bias, aside from an “ambiguous … isolated remark.”

Meanwhile, the judge found Green-LaRoche’s complaint was barred by the three-year statute of limitations for employment discrimination claims under G.L.c. 151B, rejecting her argument that even if the defendants’ actions occurred outside the limitations period, her discovery of an allegedly discriminatory, negative written evaluation within the limitations period triggered the continuing violation doctrine.

The 18-page decision is Green-LaRoche v. Boston University Neurology Associates, Inc., et al.

Differing opinions

Defense counsel David C. Kurtz of Boston declined to comment on the ruling.

Elise A. Brassil of Andover, who represented the plaintiff, said only that her client disagreed with the decision and was considering her options.

But Robert S. Mantell, a Boston attorney who represents employees, said the type of evidence provided by the plaintiff “may show that the defendant is motivated by unconscious bias or is acting based on stereotyped notions of gender.”

Accordingly, Mantell suggested that plaintiffs’ lawyers opposing summary judgment under similar circumstances cite to the Supreme Judicial Court’s 2016 Bulwer v. Mount Auburn Hosp. decision (in which the SJC found that evaluators’ comments reflecting stereotypical thinking supported a black physician’s race discrimination claim) and the 1st U.S. Circuit Court of Appeals’ 2016 Burns v. Johnson ruling (in which the 1st Circuit held that intimidating conduct using a baseball bat could reflect gender stereotyping).

merabet-v2“[I]t’s well-established that an isolated, stray remark is insufficient to prove discrimination, particularly where the comment is ambiguous at best.”

— Stephanie M. Merabet, Boston

Boston attorney Stephanie M. Merabet, who represents employers, saw it differently.

“The only comment was that [the plaintiff’s male colleague] was the only rational member of her team,” Merabet said. “Even if that suggests impermissible bias — and that’s a stretch — it was isolated. And it’s well-established that an isolated, stray remark is insufficient to prove discrimination, particularly where the comment is ambiguous at best.”

Amy E. Serino, an Andover employment lawyer who has represented hospitals, said the decision was noteworthy because obtaining summary judgment in discrimination cases, which often turn on a party’s state of mind, can be challenging.

“It’s not surprising on the specific facts presented here, however, which include a relatively thin record of allegedly discriminatory events,” Serino said.

She also said the judge’s rejection of the plaintiff’s attempt to apply the continuing violation doctrine to an untimely claim was a “sensible approach.”

The subsequent discovery of documentation of an event known to a plaintiff — here, the plaintiff’s discovery outside the limitations period of the written version of feedback she had received verbally — will not necessarily revive an otherwise time-barred claim based on that event, Serino said.

“A contrary approach would be unworkable,” she said.

Kathy Jo Cook, a Boston lawyer who represents plaintiffs, said cases like Green-LaRoche are often difficult because the discrimination involved is usually very subtle.

Nonetheless, she called the ruling “an unfortunate result,” given how frequently discrimination occurs in the medical profession.

“Particularly in male-dominated fields such as neurology, where less than one-third of the profession is female,” Cook said.

Alleged discrimination

In November 2008, Green-LaRoche joined the staff at BMC to practice neurological critical care.

According to the plaintiff, BMC’s neurology chair, defendant Carlos Kase, had promised that, within a year or two, BMC would open a neurological ICU of which she would be named director.

Green-LaRoche headed a neurological intensive care team consisting of her and two other physicians, Joseph Burns and Anna Cervantes-Arslanian. The team was allegedly overworked and understaffed, covering five ICUs in two buildings, while other intensive care teams, none of which were headed by females, were not similarly burdened.

Green-LaRoche also allegedly was forced to be on call every three weeks, though her employment offer said she would be on call every four to five weeks.

At some point in 2013, Burns and Cervantes-Arslanian received bonuses; Green-LaRoche did not, despite allegedly exceeding requirements for the bonus.

Later in 2013, five years into her tenure instead of the one or two as allegedly promised, BMC opened a neuro ICU, naming the plaintiff director, but within an already existing surgical intensive care unit headed by male anesthesiologist Gerardo Rodriguez.

In January 2014, Kase apparently told Burns and Cervantes-Arslanian to report to him instead of Green-LaRoche. A month later, the neurosurgery chief, defendant James Holsapple, directed that orders from Green-LaRoche’s team members be reviewed by the neurosurgery team before they were implemented.

Green-LaRoche attended a meeting in March at which Holsapple allegedly called Burns the only “rational” person on Green-LaRoche’s team. That spring, Kase allegedly told Green-LaRoche to “be quiet” during a meeting regarding a patient, something she said she had never heard him say to a male colleague.

On June 25, 2014, Kase met with the plaintiff for a performance review, providing negative feedback. He also made a written documentation of the review and filed it per department requirements but did not share it with the plaintiff, who came across it in BMC’s electronic files in July 2014.

That August, the plaintiff accepted a position with Tufts Medical Center effective January 2015 but told nobody at the hospital.

On Sept. 9, 2014, she met with human resources to report gender discrimination. Sometime in October, Kase allegedly followed Green-LaRoche to a bathroom and, when she shut the door, he banged on it, demanding she come out and speak with him.

On Oct. 31, the plaintiff’s attorney wrote to BMC alleging gender discrimination and requesting Green-LaRoche be put on paid leave. The request was granted and when her leave ended, Green-LaRoche resigned immediately, starting work at Tufts the next day.

On June 28, 2017, the plaintiff sued the defendants in Superior Court, alleging discriminatory acts that created a hostile work environment. The defendants moved for summary judgment.

No continuation

Cowin found the plaintiff’s claim time-barred, ruling that the limitations period expired on June 25, 2017, three years after the last allegedly gender-based act Green-LaRoche suffered.

Specifically, the judge found the continuing violation doctrine inapplicable, rejecting Green-LaRoche’s attempt to anchor her July 2014 discovery of Kase’s written evaluation to her hostile work environment claim. The judge pointed out that the plaintiff already had received the negative feedback in person and knew the evaluation would be documented.

Similarly, regarding Kase’s alleged door-banging, the judge said “there [is] no reasonable inference that this was a gender-based act,” adding that it was too insignificant to have substantially contributed to a hostile work environment.

Cowin also determined that Green-LaRoche’s claim failed on the merits due to lack of inference that the actions the plaintiff alleged were discriminatory.

“In contrast to … specific evidence demonstrating that the defendants’ actions were gender neutral, plaintiff has offered only vague, general allegations of gender animus,” the judge concluded. “Accordingly, summary judgment will be granted.”

Leave a Reply

Your email address will not be published. Required fields are marked *