UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gina Russo
v. Case No. 21-cv-703-SM-TSM Opinion No. 2025 DNH 021 New Hampshire Neurospine Institute and Uri M. Ahn
O R D E R
Plaintiff Gina Russo moves for reconsideration of the
court’s order granting summary judgment in favor of defendant
Uri M. Ahn on her aiding and abetting discrimination and
defamation claims. 1 Russo argues that the court used an
incorrect standard in evaluating the record evidence of gender
discrimination, which led to an incorrect result. She also
argues that the court erred in granting summary judgment on her
defamation claim. For the reasons that follow, the motion for
reconsideration is denied.
Standard of Review
A motion for reconsideration seeks “an extraordinary remedy
which should be used sparingly.” Salmon v. Lang, 57 F.4th 296,
323 (1st Cir. 2022) (internal quotation marks omitted). To
1 The court also granted summary judgment in favor of Dr. Ahn on Russo’s retaliation claim, but Russo does not challenge that part of the decision. succeed, the moving party “must demonstrate either that new and
important evidence, previously unavailable, has surfaced or that
the original judgment was premised on a manifest error of law or
fact.” Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35,
44-45 (1st Cir. 2020) (internal quotation marks omitted). A
motion for reconsideration is not a means for a losing party “to
undo its own procedural failures, and it certainly does not
allow a party to introduce new evidence or advance arguments
that could and should have been presented to the district court
prior to the judgment.” Fábrica de Muebles J.J. Álvarez, Inc.
v. Inversiones Mendoza, Inc., 682 F.3d 26, 31 (1st Cir. 2012).
Background
Gina Russo was employed as a physician’s assistant by the
New Hampshire Neurospine Institute beginning on March 11, 2008.
Uri Ahn is an orthopedic surgeon and a vice president and
partner at the Institute. Russo and Dr. Ahn had a difficult
working relationship that eventually led to the termination of
Russo’s employment in 2019.
Russo brought claims against New Hampshire Neurospine
Institute for gender discrimination under Title VII and New
Hampshire RSA chapter 354-A (Count I), against the Institute and
Dr. Ahn for retaliation in violation of Title VII and RSA
chapter 354-A (Count II), against Dr. Ahn for aiding and
2 abetting in gender discrimination in violation of RSA chapter
354-A (Count III), against the Institute for wrongful
termination (Count IV), and against Dr. Ahn for defamation
(Count V). Dr. Ahn moved for summary judgment on the claims
against him (Counts II, III, and V). The Institute attempted to
join Dr. Ahn’s summary judgment motion, which was unsuccessful
because Dr. Ahn limited the motion to the claims against him.
Doc. no. 63.
The court granted Dr. Ahn’s motion for summary judgment.
In light of that result and its effect on claims against the
Institute, the court continued trial, which was scheduled in
December of 2024, and set a briefing schedule for summary
judgment on Russo’s claims against the Institute. Russo moved
for reconsideration of the order granting summary judgment in
Dr. Ahn’s favor.
Discussion
In support of reconsideration, Russo argues that the court
improperly credited testimony from Dr. Ahn’s witnesses, found
contested facts in Dr. Ahn’s favor, and ignored facts that she
provided, which resulted in an erroneous decision in Dr. Ahn’s
3 favor on her aiding and abetting discrimination claim. 2 She also
argues that the court ignored her claim for defamation per se
and erred in granting summary judgment on that claim. Dr. Ahn
objects to reconsideration, contending that the court properly
assessed the record evidence and correctly granted summary
judgment on the aiding and abetting discrimination and
defamation claims. In her reply, Russo points to a recent First
Circuit Court of Appeals case, Ripoli v. Rhode Island Department
of Human Services, 123 F.4th 565 (1st Cir. 2024), which she says
demonstrates that the court misapplied the McDonnell-Douglas
burden-shifting framework when it evaluated her aiding and
abetting claim. 3
A. Aiding and Abetting Discrimination - Count III
In Count III, Russo alleged that Dr. Ahn aided and abetted
the Institute in discriminating against her, because of her
gender, in violation of NH RSA chapter 354-A. 4 In opposition to
2 Russo does not challenge summary judgment on the retaliation claim against Dr. Ahn, Count II.
3 McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
4 Under New Hampshire law, the court relies on federal cases interpreting Title VII to decide analogous discrimination claims under RSA ch. 354-A. Zerveskes v. Wentworth-Douglass Hosp., No. 24-cv-025-SE-TSM, 2024 WL 4301375, at *2 (D.N.H. Sept. 26, 2024) (citing Hubbard v. Tyco Integrated Cable Sys., Inc., 985 F. Supp. 2d 207, 218 (D.N.H. 2013)).
4 summary judgment, Russo argued, in part, that the Institute and
Dr. Ahn provided explanations for her termination that were
pretexts for discrimination. The court concluded that Russo did
not provide direct evidence of discrimination, and to the extent
she relied on the McDonnell-Douglas framework, she did not
establish a prima facie case or show that the explanations
provided by the Institute and Dr. Ahn were pretextual. For
purposes of reconsideration, Russo challenges the summary
judgment standard used by the court and the McDonnell-Douglas
analysis.
1. Evidence
Russo asserts that the court erred - in crediting evidence
from witnesses whom she deems to be biased in favor of Dr. Ahn
or whose testimony she deems to be unreliable, and by resolving
disputed facts in favor of Dr. Ahn. She argues that the court
failed to follow the summary judgment standard described in
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000),
and that the decision on Counts III and V must be vacated.
Under Russo’s interpretation of Reeves, the court must
disregard all evidence that the jury might not credit, which
includes all evidence from interested witnesses. The First
Circuit interprets the Reeves standard differently: “‘At summary
judgment we need not exclude all interested testimony,
5 specifically testimony that is uncontradicted by the
nonmovant.’” Lopez-Hernandez v. Terumo Puerto Rico LLC, 64
F.4th 22, 30–31 (1st Cir. 2023) (quoting Dennis v. Osram
Sylvania, Inc., 549 F.3d 851, 856 (1st Cir. 2008)). The court,
of course, follows and applies the standard set by the First
Circuit Court of Appeals and finds no evidence that was
improperly credited or ignored.
Many of the background facts that Russo challenges as being
resolved in Dr. Ahn’s favor are not material to the summary
judgment result. Russo also failed in her objection to summary
judgment to properly contest some of the facts she now asserts
were resolved against her. 5 Of particular note, Russo relies on
5 Russo challenges the testimony of Kerri Ahn, Dr. Ahn’s wife, that Russo was rude, hostile, and unprofessional during a conversation with Dr. Ahn, which Mrs. Ahn overheard while they were traveling in a car. Russo argues that Mrs. Ahn’s testimony should not be credited because she is an interested witness and because she did not recall other details about the conversation, such as the specific words used, who initiated the call, and who was in the car during the call. Russo has not shown that those details are material to the substance of Mrs. Ahn’s testimony about Russo’s tone during the call. Russo also does not dispute that the call occurred or that Mrs. Ahn knew Russo from prior work experiences. Mrs. Ahn explained her limited memory of the call: “The reason the conversation stood out to me, because he [Dr. Ahn] gets a lot of phone calls on the weekends, is just the tone of that conversation was rude and hostile and unprofessional and a little surprising to hear somebody talking to their coworker that way.” Doc. no. 42-8, at 8-9. Mrs. Ahn’s testimony about the call was not contradicted by evidence that (1) the call did not happen, (2) that she was not in the car, or (3) that she did not hear Russo’s tone during the call, as she described in her deposition.
6 a report prepared by an independent investigator, Elizabeth
Bailey, who provided her findings in a letter on September 24,
2019, and on notes taken by Bailey in the course of her
investigation. Russo argues that various witnesses’ statements
to Bailey or their failure to include information that was in
their deposition testimony contradict their deposition
testimony. As Dr. Ahn points out, however, Russo has not shown
that the report, Bailey’s findings, or Bailey’s notes are
cognizable evidence for purposes of summary judgment. See Fed.
R. Civ. P. 56(c)(2); see also Pena v. Honeywell Int’l, Inc., 923
F.3d 18, 30 (1st Cir. 2019) (discussing rule pertaining to
creation of a factual dispute by contradicting a previous sworn
statement).
The court agrees with Dr. Ahn that the record evidence
properly supports the factual bases for summary judgment as
determined in the order granting summary judgment. Doc. no. 64.
As such, Russo has not demonstrated a manifest error of fact.
2. Proof of Discrimination
In her motion for reconsideration, Russo states that the
court “chastised” her in the summary judgment order for failing
to address the elements of a prima facie case. She argues that
the court erred in not putting the burden on the defendants to
challenge a prima facie case. In her reply, Russo relies on
7 Ripoli, 123 F.4th at 571-72, to argue that the court erred in
its analysis of the discrimination element of her aiding and
abetting claim. She argues that Ripoli requires reinstatement
of that claim.
Russo contends that under the McDonnell-Douglas burden-
shifting framework, as construed in Ripoli, her prima facie case
of discrimination and her evidence of pretext are sufficient to
establish gender discrimination by the Institute for purposes of
her aiding and abetting discrimination claim against Dr. Ahn.
In Ripoli, the court stated that “[w]hether summary judgment is
appropriate in any given instance depends on multiple factors,
including the strength of the plaintiff’s prima facie case, the
probative value of the proof of pretext, and any other
appropriately considered evidence.” Ripoli, 123 F.4th at 572.
Further, generally “‘a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.” Id. (quoting
Reeves, 530 U.S. at 143). If a plaintiff meets that burden, “a
plaintiff need not necessarily introduce ‘additional,
independent evidence of discrimination.’” Id. (quoting Reeves,
530 U.S. at 149).
Russo asserts that her prima facie case is strong and
undisputed and that the defendants’ explanations for her
8 termination shifted, supporting an inference of pretext. Based
on that view of her evidentiary showing, Russo asserts that she
need not provide any further evidence of discrimination or
discriminatory intent to avoid summary judgment and that the
court erred in granting summary judgment in favor of Dr. Ahn.
The court disagrees.
a. Prima facie case
If a plaintiff intends to rely on the burden-shifting
framework to avoid summary judgment on a discrimination claim,
she “first must make a prima facie showing of discrimination.”
Ripoli, 123 F.4th at 571; see also Sutherland v. Peterson’s Oil
Serv., Inc., --- F.4th ---, 2025 WL 211897, at *4 (1st Cir. Jan.
16, 2025). As the court pointed out in the order granting
summary judgment, Russo provided no evidence and made no showing
to demonstrate a prima face case of discrimination in her
objection to summary judgment, and in fact, she failed to
address a prima facie case at all. Doc. no. 64, at 17. For
that reason, Russo did not even begin, much less complete, the
first step that would have shifted the burden to Dr. Ahn to
“provide a legitimate, non-discriminatory reason for the adverse
employment action.” Ripoli, 123 F.4th at 572. In the absence
of a prima facie case, summary judgment could have been granted
without considering Russo’s other arguments. The court,
9 however, continued on to consider the arguments that Russo did
present, presuming she could make a prima facie case, and found
she had not rebutted Dr. Ahn’s reason for seeking the
termination of her employment: that he could not work with
Russo because she was disrespectful, insubordinate, and
difficult to work with.
Russo argues that Dr. Ahn is at fault for not challenging
her failure to present a prima facie case. She argues, without
citation to authority, that if defendants do not challenge a
plaintiff’s prima facie case, then the court must assume
plaintiff can make that showing. Because it was Russo’s burden
to establish her prima facie case, Ripoli, 123 F.4th at 571, Dr.
Ahn is not responsible for her failure to do so. But the court
assumed she could make the required minimal showing based on the
summary judgment record: she is a member of a protected class,
she may (or may not) have performed her job satisfactorily, and
she was terminated from her employment. She has not shown,
however, that her termination occurred under circumstances that
would support an inference of discrimination rather than the
non-discriminatory reason given: a personality conflict with Dr.
Ahn that her conduct was said to have precipitated. 6 That is far
6 Although Russo contends that she was terminated because she is female, the record shows that the Institute board voted to terminate Russo based on Dr. Ahn’s report that he could not work
10 from a strong prima facie case presenting circumstances
sufficient to show the employer’s explanation to be false. 7
with her because she was disrespectful, insubordinate, and difficult to work with. Russo argued in her objection to summary judgment that Dr. Ahn’s opinion of her was the result of gender stereotyping, but in light of the incidents that occurred between Russo and Dr. Ahn, the record did not support Russo’s interpretation. In her objection’s statement of facts, Russo purported to show that Dr. Ahn preferred working with male staff and had a history of problems with female staff. Doc. no. 47, at 10-14. The statements provided for that purpose, however, to the extent they suggest an anti-female bias at all, are arguments, not facts, and statements that are largely unsupported by competent evidence for summary judgment. Doc. no. 55, at 6-7, see Fed. R. Civ. P. 56(c); Rios v. Centerra Grp. LLC, 106 F.4th 101, 114 (1st Cir. 2024) (holding that office gossip and other hearsay “outside the personal knowledge of a testifying witness” are not competent evidence to oppose a motion for summary judgment); Klauber v. VMware, Inc., 80 F.4th 1, 7 (1st Cir. 2023) (“When adjudicating a motion for summary judgment, a district court customarily may consider only evidence that would be admissible at trial.”). For example, Timothy Miller’s declaration confirms Dr. Ahn’s universally difficult temperament (which he describes as explosive) and demonstrates that his methods for dealing with Dr. Ahn worked better than Russo’s. To the extent Russo argues that she lacked competent evidence to support her theory of gender bias because of missing documents, those issues were addressed and decided previously. Doc. no. 37.
7 Even if Russo could now provide competent evidence of discriminatory animus, it is too late. Russo did not ask for more time to pursue discovery with a supporting affidavit, which is required to avoid summary judgment on the record presented. Fed. R. Civ. P. 56(d); Radfar v. City of Revere, No. 20-CV- 10178-IT, 2024 WL 5009072, at *1, n.3 (D. Mass. Dec. 5, 2024) (“In the absence of a Rule 56(d) affidavit, an open motion to compel, or a Rule 37(b) motion, the court finds that any argument that discovery was incomplete has been waived.”). A motion for reconsideration is not an opportunity to fix procedural errors or make new arguments. Álvarez, 682 F.3d at 31.
11 In contrast, the plaintiff in Ripoli addressed each element
of the prima facie case, and the defendant did not dispute her
proof of the elements. 123 F.4th at 572. She established that
she was a member of two protected groups because she is female
and a lesbian, that she was qualified for her position, and she
was discharged under circumstances giving rise to an inference
of discrimination. Id. Specifically, the court found that
plaintiff demonstrated that she
was the only female and only gay employee on the [defendant’s] executive team, and she was the only employee who was fired; there was no compelling impetus, budgetary or otherwise, to send her packing; the State had a continuing need for her work and skills; she was arguably replaced by a less-qualified heterosexual male; and the State kept her in the dark about the availability of [another employment] opportunity.
Id. Even if Russo provided competent evidence of circumstances
that would support an inference of discrimination in the context
of a strong prima facie case, she still did not establish a
factual dispute at the next step, pretext.
b. Evidence of pretext
Following a prima facie case of discrimination, the burden
shifts to the defendant “to articulate a legitimate, non-
discriminatory reason for terminating [the plaintiff’s]
employment.” Ripoli, 123 F.4th at 573. If the defendant
provides a non-discriminatory reason, the burden shifts back to
12 the plaintiff to show that the reason given is a pretext for
discrimination, that is, to show that a genuine factual issue
exists as to pretext. Id. at 574. Depending on the specific
facts of the case, a plaintiff who can show that the employer’s
stated reason for the adverse action is false may not have to
provide additional evidence of discrimination to prove that the
true reason is discriminatory. Id. at 574-75. On summary
judgment, the court must determine “whether the [plaintiff] has
identified enough evidence to enable a rational factfinder to
infer that unlawful discrimination was a determinative factor in
the [defendant’s] termination of her employment.” Id. at 575.
In her objection to summary judgment, Russo did not argue
that the Institute’s reasons given for her termination were
false. She stated that the Institute and Dr. Ahn provided
different and shifting explanations for her termination, which
were: “(1) because she voluntarily agreed in advance to part
company if the relationship wasn’t working; (2) due to
‘irreconcilable differences’ with Ahn, and (3) because of her
insubordinate and unprofessional behavior.” Doc. no. 47, at 23.
She argued that those explanations were pretexts for
discrimination. The court acknowledged that a plaintiff might
demonstrate pretext by showing that the employer gave different
and inconsistent explanations if she can show “such weaknesses,
implausibilities, inconsistencies, incoherencies, or
13 contradictions [such] that a reasonable factfinder could
rationally find [that the proffered reason for termination is]
unworthy of credence.” Cocuzzo v. Trader Joe's E. Inc., 121
F.4th 924, 935 (1st Cir. 2024). The court concluded, however,
that Russo did not meet that standard and that the cited reasons
were not shifting, different, or inconsistent.
To the extent Russo raises pretext for purposes of
reconsideration, she has not shown any error. For these
reasons, Russo has not provided grounds for reconsidering the
order granting summary judgment on her aiding and abetting claim
against Dr. Ahn.
B. Defamation
Russo asks the court to reconsider summary judgment on her
defamation claim, arguing that the court did not address
defamation per se and disputing that the alleged defamatory
statements constitute opinion rather than statements of fact.
Russo alleged in the complaint that Dr. Ahn had made false
statements “that Russo was trying to get out of doing work, that
she yelled at him and had been disrespectful including using
profanity toward him” and that she “had a history of avoiding
work-related tasks.” Doc. no. 1, ¶¶ 118 & 119. In the motion
for summary judgment, Dr. Ahn challenged Russo’s defamation
claim on grounds that she lacked any competent evidence that he
14 ever made the statements that she alleged were defamatory, that
some alleged statements were not defamatory, and that some were
statements of opinion.
In her objection to summary judgment, Russo addressed
defamation in one page, asserting generally that Dr. Ahn had
misstated defamation law and challenging Dr. Ahn’s argument that
the statement Russo alleged he made, that Russo avoids doing
work for him, was opinion, not actionable defamation. She did
not address the other grounds for summary judgment raised by Dr.
Ahn or the other allegedly defamatory statements alleged in her
complaint. The court concluded that the alleged statement about
avoiding work was non-actionable opinion and granted summary
judgment on the defamation claim.
court overlooked defamation per se and improperly narrowed her
allegations. To the extent Russo raises other allegations from
the complaint on reconsideration, she did not address those
allegations in opposition to summary judgment and cannot add new
arguments for purposes of reconsideration. She also did not
provide any developed argument in her motion for reconsideration
to address any other allegedly defamatory statements, with the
result that any such argument is waived. See, e.g., Emigrant
Mortg. Co., Inc. v. Bourke, No. 24-1210, --- F.4th ---, 2025 WL
325872, at *3 (1st Cir. Jan. 29, 2025); Thornton v. Ipsen
15 Biopharmaceuticals, Inc., 126 F.4th 76, 85 (1st Cir. 2025);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“It is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work.”)
1. Defamation Per Se
Russo argues that the alleged statements about avoiding
work are defamation per se and that the court ignored that part
of her claim. She states: “Because Ahn’s statement, which
suggests that Plaintiff both avoids work and avoids work for the
orthopedic surgeons at NHNSI, is one that did, in fact, injure
Plaintiff in her trade or profession, it may reasonably be
understood to imply the existence of defamatory facts underlying
Defendant’s opinion.” Doc. no. 78, at 11. Russo’s theory of
defamation per se is not properly before the court, because she
did not raise defamation per se in her objection to summary
judgment. See, e.g., United States v. Rivera-Rodríguez, 75
F.4th 1, 26 (1st Cir. 2023) (holding that government could not
raise a new argument for the first time on reconsideration even
“under the banner of correcting ‘manifest errors’ by the
court”). Further, her new argument is neither clear nor
persuasive.
The doctrine of defamation per se generally pertains to
damages: “It is well established in New Hampshire that no proof
16 of specific damages is required when the jury could find that
the defamatory publication charged the plaintiff with a crime or
with activities which would tend to injure him in his trade or
business, commonly called libel per se.” MacDonald v. Jacobs,
171 N.H. 668, 674 (2019). The issue presented for summary
judgment was not whether the alleged statements are defamatory
or whether Russo can prove damages, but instead the issue was
whether those statements were non-actionable defamatory opinion. 8
Russo has not shown that defamation per se is material to the
court’s disposition of the defamation claim on summary judgment.
2. Opinion
Russo argues briefly, combined with her theory of
defamation per se, that Dr. Ahn’s alleged statement that she
avoids work is actionable, even if it is opinion, because it
could reasonably be understood to imply the existence of
defamatory facts as the basis for the opinion. In total, Russo
states:
8 It is unclear what relationship Russo perceives between defamation per se and non-actionable opinion. She cites no authority that opinion is actionable if it meets the requirements for defamation per se. If she intended to argue that Dr. Ahn’s opinion about her avoiding work implies underlying undisclosed defamatory facts that are defamatory per se, she has not sufficiently articulated or developed that argument to allow the court to respond.
17 When arguing for Plaintiff’s termination, Defendant argued that Plaintiff avoided doing work for him on multiple specific occasions. Defendant made these claims even though he knew that they were not true at the time that he said them. Because Ahn’s statement, which suggests that Plaintiff both avoids work and avoids work for the orthopedic surgeons at NHNSI, is one that did, in fact, injure Plaintiff in her trade or profession, it may reasonably be understood to imply the existence of defamatory facts underlying Defendant’s opinion.
Doc. no. 78, at 11.
Opinion can be actionable defamation if the opinion implies
underlying and undisclosed false and defamatory facts. Richards
v. Union Leader Corp., 176 N.H. 789, 798 (2024). Opinion is not
actionable defamation, however, if the speaker communicates the
non-defamatory facts that underly his opinion. Id. at 800-01;
Piccone v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015). Russo
does not explain what specific underlying and undisclosed
defamatory facts might be implied from Dr. Ahn’s opinion about
her avoiding work.
Instead, Russo asserts that Dr. Ahn did provide the
underlying reasons for his opinion to the board when he argued
that Russo “avoided doing work for him on multiple specific
occasions.” Doc. no. 78, at 11. Russo further states that Dr.
Ahn knew his opinion was not true, possibly to suggest that any
implied facts are false and defamatory. But Russo points to no
evidence to support her speculation about what was said at the
board meeting or what Dr. Ahn knew. Soto-Ocasio v. Fed. Exp.
18 Corp., 150 F.3d 14, 18 (1st Cir. 1998) (“The party seeking to
avoid summary judgment ‘must be able to point to specific,
competent evidence to support his claim, mere allegations, or
conjecture unsupported in the record, are insufficient to raise
a genuine issue of material fact.” (internal quotation marks
omitted)).
As such, Russo has not pointed to evidence that would, at a
minimum, create a genuine material factual dispute as to whether
there were implied undisclosed, underlying, false, and
defamatory facts for Dr. Ahn’s opinion that she avoided doing
work. In the absence of that evidence, Russo has not shown an
actionable defamation claim that can survive summary judgment.
Conclusion
For the foregoing reasons, the court denies the plaintiff’s
motion for reconsideration (doc. no. 78).
SO ORDERED.
______________________________ Steven J. McAuliffe United States District Judge
February 24, 2025
cc: Counsel of Record