O'Horo v. Boston Medical Center Corporation
This text of O'Horo v. Boston Medical Center Corporation (O'Horo v. Boston Medical Center Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
United States Court of Appeals For the First Circuit
No. 23-1870 SUSAN O'HORO, M.D.,
Plaintiff, Appellant,
v.
BOSTON MEDICAL CENTER CORPORATION; BOSTON UNIVERSITY MEDICAL CENTER RADIOLOGISTS, INC.; and JORGE SOTO, M.D.;
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] [Hon. Jennifer C. Boal, U.S. Magistrate Judge]
Before
Gelpí, Montecalvo, and Aframe, Circuit Judges.
Edward Foye, with whom Lisa G. Arrowood, Sarah E. A. Sousa, and Arrowood LLP were on brief, for appellant.
David C. Kurtz, with whom Jonathan D. Persky and Constangy, Brooks, Smith & Prophete LLP were on brief, for appellees.
February 21, 2025 GELPÍ, Circuit Judge. This suit arises from a doctor's
efforts to report -- internally and externally -- misconduct at a
hospital. Plaintiff-Appellant Susan O'Horo ("Dr. O'Horo") was
employed by Boston University Medical Center Radiologists, Inc.
("BUMCR") as an interventional radiologist and the Director of
Quality and Safety in the Interventional Radiology ("IR") Division
at Boston Medical Center Corporation ("BMC"). She was responsible
for, among other things, reviewing and investigating safety
reports based on complications that occurred during medical
procedures. But Dr. O'Horo insists that she was unable to
effectively carry out her duties and correct safety concerns
because her workplace was permeated by discriminatory and
retaliatory animus. Indeed, she asserts that the workplace was so
harsh that she was ultimately compelled to resign in January 2020.
Thereafter, on December 29, 2020, Dr. O'Horo filed suit
in the United States District Court for the District of
Massachusetts against BUMCR, BMC, and Dr. Jorge Soto
(collectively, "Defendants-Appellees"). As relevant to the
instant appeal, Dr. O'Horo brought claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII");
the corresponding Massachusetts law, Mass. Gen. Laws ch. 151B
("Chapter 151B"); and the Massachusetts Health Care Whistleblower
Act, Mass. Gen. Laws ch. 149, § 187 ("MHCWA"). On November 21,
2022, Defendants-Appellees moved for summary judgment. United
- 2 - States Magistrate Judge Jennifer C. Boal issued a report and
recommendation ("R&R") granting the motion, which United States
District Court Judge George A. O'Toole, Jr. adopted in its
entirety. Dr. O'Horo appealed.
For the reasons explained below, we affirm.
I.
A. Factual Background
We draw the facts from the summary judgment record that
was before the district court, see Boykin v. Genzyme Therapeutic
Prods., LP, 93 F.4th 56, 58 (1st Cir. 2024), and "we array [them]
in the light most favorable to the nonmoving party," Alam & Sarker,
LLC v. United States, 113 F.4th 153, 158-59 (1st Cir. 2024)
(quoting AJ Mini Mkt., Inc. v. United States, 73 F.4th 1, 4 (1st
Cir. 2023)).
1. Dr. O'Horo's Role at BMC
Dr. O'Horo is an interventional radiologist. Unlike
diagnostic radiologists, who use non-invasive technology for
diagnostic purposes, interventional radiologists employ minimally
invasive, image-guided procedures to both diagnose and treat
disease. As with all medical procedures, patient safety is a
priority.
- 3 - In 2017, BUMCR1 created the position of Director of
Quality and Safety in the IR Division. And in February 2018, BUMCR
hired Dr. O'Horo to do the job. In that new role, Dr. O'Horo
claims that she had a duty to oversee and improve the culture of
safety within the IR Division at BMC, including by developing and
implementing quality and safety initiatives and procedures,
setting up a formal process to review and document complications,
and reviewing and investigating any reports filed through BMC's
complication tracking system, STARS.
Dr. O'Horo, however, worked under superiors at BMC, and
there was overlap between her mandate to monitor patient safety
and the duties of other, more senior employees. For instance, Dr.
Rajendran Vilvendhan ("Dr. Vilvendhan"), as the Division Chief of
IR, was responsible for the "overall conduct" of the IR Division,
including an obligation to oversee the professional performance of
all physicians with clinical privileges; the development and
implementation of policies and procedures to enhance the provision
of care; and the continuing duty to evaluate and improve the
quality of care. Likewise, Dr. James Moses ("Dr. Moses") was BMC's
Chief Quality Officer and played a significant role in overseeing
patient quality and safety in IR. And there were others who
1 BUMCR is a professional corporation that employs radiologists to practice medicine at BMC, an academic medical center in Boston, Massachusetts.
- 4 - monitored quality and safety at BMC, such as Dr. Soto, who was
BMC's Chief of Radiology, BUMCR's president, and Dr. O'Horo's
direct supervisor; Dr. Ravin Davidoff ("Dr. Davidoff"), BMC's
Chief Medical Officer; Scott Friedman, BMC's Chief Risk Officer;
and Laura Harrington, BMC's Executive Director for Quality and
Patient Safety.
2. Dr. O'Horo Reports Misconduct
Shortly after Dr. O'Horo began her job at BMC, she
learned of a host of troubles related to Dr. Mikhail Higgins ("Dr.
Higgins"). These issues are largely undisputed, and so too are
Dr. O'Horo's efforts to intervene.
Dr. O'Horo's involvement began in June 2018, after a
nursing manager, Stephanie Martinez, complained about Dr.
Higgins's negative effect on the morale of nursing staff. To
address a myriad of concerns related to Dr. Higgins, Dr. O'Horo
sent an email to Dr. Soto on June 8, 2018, in which she suggested
that Dr. Higgins's procedures be observed. Dr. Soto responded by
email stating, "Thanks for your diligence and hard work. I suggest
we meet (hopefully Monday) to discuss the points below, especially
those pertaining to [Dr. Higgins]." Although Dr. O'Horo believed
that Dr. Soto was being insincere, they did devise a plan to
supervise Dr. Higgins.
Still, quality and safety issues persisted throughout
the IR Division. Dr. Higgins was the main culprit, leading some
- 5 - technologists and other staff members at BMC to dub him "the Boston
Butcher." Dr. O'Horo continued to track in a Microsoft Excel
spreadsheet Dr. Higgins's misadventures, and to report them. In
the fall of 2018, she reiterated to Dr. Soto her concerns about
Dr. Higgins. On January 10, 2019, Dr. Soto privately asked Dr.
Vilvendhan to review one of the cases that Dr. O'Horo had raised.
Believing that Dr. Soto had failed to act, Dr. O'Horo brought her
complaints to Dr. Moses.
Dr. Moses had some reservations about Dr. O'Horo's
reporting. For instance, he was concerned about Dr. O'Horo's
recordkeeping: she did not use the STARS reporting system in
accordance with BMC's policy,2 opting instead to track issues in
Free access — add to your briefcase to read the full text and ask questions with AI
United States Court of Appeals For the First Circuit
No. 23-1870 SUSAN O'HORO, M.D.,
Plaintiff, Appellant,
v.
BOSTON MEDICAL CENTER CORPORATION; BOSTON UNIVERSITY MEDICAL CENTER RADIOLOGISTS, INC.; and JORGE SOTO, M.D.;
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge] [Hon. Jennifer C. Boal, U.S. Magistrate Judge]
Before
Gelpí, Montecalvo, and Aframe, Circuit Judges.
Edward Foye, with whom Lisa G. Arrowood, Sarah E. A. Sousa, and Arrowood LLP were on brief, for appellant.
David C. Kurtz, with whom Jonathan D. Persky and Constangy, Brooks, Smith & Prophete LLP were on brief, for appellees.
February 21, 2025 GELPÍ, Circuit Judge. This suit arises from a doctor's
efforts to report -- internally and externally -- misconduct at a
hospital. Plaintiff-Appellant Susan O'Horo ("Dr. O'Horo") was
employed by Boston University Medical Center Radiologists, Inc.
("BUMCR") as an interventional radiologist and the Director of
Quality and Safety in the Interventional Radiology ("IR") Division
at Boston Medical Center Corporation ("BMC"). She was responsible
for, among other things, reviewing and investigating safety
reports based on complications that occurred during medical
procedures. But Dr. O'Horo insists that she was unable to
effectively carry out her duties and correct safety concerns
because her workplace was permeated by discriminatory and
retaliatory animus. Indeed, she asserts that the workplace was so
harsh that she was ultimately compelled to resign in January 2020.
Thereafter, on December 29, 2020, Dr. O'Horo filed suit
in the United States District Court for the District of
Massachusetts against BUMCR, BMC, and Dr. Jorge Soto
(collectively, "Defendants-Appellees"). As relevant to the
instant appeal, Dr. O'Horo brought claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII");
the corresponding Massachusetts law, Mass. Gen. Laws ch. 151B
("Chapter 151B"); and the Massachusetts Health Care Whistleblower
Act, Mass. Gen. Laws ch. 149, § 187 ("MHCWA"). On November 21,
2022, Defendants-Appellees moved for summary judgment. United
- 2 - States Magistrate Judge Jennifer C. Boal issued a report and
recommendation ("R&R") granting the motion, which United States
District Court Judge George A. O'Toole, Jr. adopted in its
entirety. Dr. O'Horo appealed.
For the reasons explained below, we affirm.
I.
A. Factual Background
We draw the facts from the summary judgment record that
was before the district court, see Boykin v. Genzyme Therapeutic
Prods., LP, 93 F.4th 56, 58 (1st Cir. 2024), and "we array [them]
in the light most favorable to the nonmoving party," Alam & Sarker,
LLC v. United States, 113 F.4th 153, 158-59 (1st Cir. 2024)
(quoting AJ Mini Mkt., Inc. v. United States, 73 F.4th 1, 4 (1st
Cir. 2023)).
1. Dr. O'Horo's Role at BMC
Dr. O'Horo is an interventional radiologist. Unlike
diagnostic radiologists, who use non-invasive technology for
diagnostic purposes, interventional radiologists employ minimally
invasive, image-guided procedures to both diagnose and treat
disease. As with all medical procedures, patient safety is a
priority.
- 3 - In 2017, BUMCR1 created the position of Director of
Quality and Safety in the IR Division. And in February 2018, BUMCR
hired Dr. O'Horo to do the job. In that new role, Dr. O'Horo
claims that she had a duty to oversee and improve the culture of
safety within the IR Division at BMC, including by developing and
implementing quality and safety initiatives and procedures,
setting up a formal process to review and document complications,
and reviewing and investigating any reports filed through BMC's
complication tracking system, STARS.
Dr. O'Horo, however, worked under superiors at BMC, and
there was overlap between her mandate to monitor patient safety
and the duties of other, more senior employees. For instance, Dr.
Rajendran Vilvendhan ("Dr. Vilvendhan"), as the Division Chief of
IR, was responsible for the "overall conduct" of the IR Division,
including an obligation to oversee the professional performance of
all physicians with clinical privileges; the development and
implementation of policies and procedures to enhance the provision
of care; and the continuing duty to evaluate and improve the
quality of care. Likewise, Dr. James Moses ("Dr. Moses") was BMC's
Chief Quality Officer and played a significant role in overseeing
patient quality and safety in IR. And there were others who
1 BUMCR is a professional corporation that employs radiologists to practice medicine at BMC, an academic medical center in Boston, Massachusetts.
- 4 - monitored quality and safety at BMC, such as Dr. Soto, who was
BMC's Chief of Radiology, BUMCR's president, and Dr. O'Horo's
direct supervisor; Dr. Ravin Davidoff ("Dr. Davidoff"), BMC's
Chief Medical Officer; Scott Friedman, BMC's Chief Risk Officer;
and Laura Harrington, BMC's Executive Director for Quality and
Patient Safety.
2. Dr. O'Horo Reports Misconduct
Shortly after Dr. O'Horo began her job at BMC, she
learned of a host of troubles related to Dr. Mikhail Higgins ("Dr.
Higgins"). These issues are largely undisputed, and so too are
Dr. O'Horo's efforts to intervene.
Dr. O'Horo's involvement began in June 2018, after a
nursing manager, Stephanie Martinez, complained about Dr.
Higgins's negative effect on the morale of nursing staff. To
address a myriad of concerns related to Dr. Higgins, Dr. O'Horo
sent an email to Dr. Soto on June 8, 2018, in which she suggested
that Dr. Higgins's procedures be observed. Dr. Soto responded by
email stating, "Thanks for your diligence and hard work. I suggest
we meet (hopefully Monday) to discuss the points below, especially
those pertaining to [Dr. Higgins]." Although Dr. O'Horo believed
that Dr. Soto was being insincere, they did devise a plan to
supervise Dr. Higgins.
Still, quality and safety issues persisted throughout
the IR Division. Dr. Higgins was the main culprit, leading some
- 5 - technologists and other staff members at BMC to dub him "the Boston
Butcher." Dr. O'Horo continued to track in a Microsoft Excel
spreadsheet Dr. Higgins's misadventures, and to report them. In
the fall of 2018, she reiterated to Dr. Soto her concerns about
Dr. Higgins. On January 10, 2019, Dr. Soto privately asked Dr.
Vilvendhan to review one of the cases that Dr. O'Horo had raised.
Believing that Dr. Soto had failed to act, Dr. O'Horo brought her
complaints to Dr. Moses.
Dr. Moses had some reservations about Dr. O'Horo's
reporting. For instance, he was concerned about Dr. O'Horo's
recordkeeping: she did not use the STARS reporting system in
accordance with BMC's policy,2 opting instead to track issues in
an ad hoc spreadsheet, which was maintained on BMC's local desktop
computer, rather than submitted to a protected and centrally
located workspace, and thus prevented timely review of
complications. Moreover, Dr. Moses took issue with Dr. O'Horo's
2 Defendants-Appellees claim that Dr. O'Horo should have reported quality and safety concerns in the STARS system. According to BMC policy, STARS reports are to be filed by any individual who identifies a reportable event, and the reporter's immediate supervisor should ensure that an incident report is timely completed. STARS reports are then reviewed by BMC's Patient Safety Steering Committee ("PSSC"), which is composed of the Chief Nursing Officer, the Chief Quality Officer, Risk Managers, the Executive Director of Quality and Patient Safety, and representatives from the patient advocacy and legal teams. Dr. O'Horo contends that she was not informed of her duties related to STARS, but she does not dispute that her preferred method of tracking complications prevented timely review by PSSC and other BMC officials.
- 6 - hyperfocus on Dr. Higgins's issues and her punitive, instead of
remedial, approach to correcting such issues. Nevertheless, Dr.
Moses was alarmed by Dr. Higgins's complications, as reflected in
the spreadsheet.
Although Dr. O'Horo contests whether Dr. Moses seriously
considered the issues she raised, she does not dispute that Dr.
Moses took certain steps to address them. First, he met with BMC's
Chief Medical Officer, Dr. Davidoff, who expressed concerns about
a potential conflict between Dr. O'Horo and Dr. Higgins. Then, on
January 23, 2019, Dr. Moses sent to Dr. Soto an email explaining,
among other things, that he was concerned with Dr. Higgins's
competency and that Dr. Davidoff had "told [him] . . . about the
interactive and emotional intelligence issues [Dr. O'Horo was]
having that make the issue with [Dr. Higgins] not so clear." Dr.
Moses testified that he left the conversation with Dr. Davidoff
"specifically concerned [about] Dr. O'Horo's lack of situational
awareness and self-awareness, as to why she did not perceive her
processes [as] flawed and potentially biased against Dr. Higgins."
The next day, Dr. Soto contacted Drs. O'Horo and
Vilvendhan, expressing concerns about delays in completing Dr.
Higgins's evaluations and reiterating that Dr. Higgins's cases
were a priority. Dr. Soto laid the blame primarily at Dr. O'Horo's
feet. Dr. O'Horo disputes whether she was the sole reason for
this shortfall.
- 7 - 3. Dr. O'Horo Sounds the Alarm
Dr. Higgins's performance-related issues persisted
unabated well into 2019. So Dr. O'Horo sent a letter to Dr.
Davidoff and Scott Friedman on September 13, 2019, outlining her
concerns about Dr. Higgins and attaching her updated spreadsheet
of quality and safety issues. She further demanded "an objective
investigation as [she had] concerns that Dr. Soto and Dr.
Vilvendhan" were biased and "may [have] even be[en] protecting Dr.
Higgins." She expressly noted that she was "reporting these
matters . . . under Massachusetts General Laws, Chapter 149,
Section 187, because [she] believe[d] they pose[d] a risk to [the]
patients and to public health."
Dr. Davidoff testified that BMC quickly developed a plan
to address Dr. O'Horo's concerns in the September 2019 letter.
The response consisted of both an internal and external review;
the former led by Dr. Vilvendhan, and the latter conducted by an
outside reviewer. In meetings with Dr. Moses, Dr. O'Horo voiced
concerns about Dr. Vilvendhan's role in the internal review because
of his apparent biases regarding Dr. Higgins and because she felt
it was a usurpation of her role as the Director of Quality and
Safety. Dr. Moses later testified that he believed the external
review would guard against bias in the internal review, whether of
Dr. Vilvendhan, Dr. O'Horo, or any other IR provider.
- 8 - In addition, Dr. O'Horo was invited to and attended
meetings with several supervisors and administrators at BMC. She
first met with Dr. Davidoff, during which Dr. O'Horo brought up
various topics, including Dr. Higgins's disproportionate number of
clinical complications, Dr. Soto's leadership, and the Radiology
Department more generally. It is undisputed that Dr. Davidoff
listened to Dr. O'Horo and promised to follow up on the issues she
had raised. On October 3, 2019, Dr. O'Horo attended another
meeting -- this time, with Drs. Davidoff and Moses and Laura
Harrington, the Executive Director for Quality and Patient Safety.
There, they discussed, among other things, Dr. O'Horo's letter,
the supporting documentation, and each case that Dr. O'Horo had
listed. Dr. O'Horo felt optimistic that her concerns would be
addressed.
That optimism was short-lived. On December 7, 2019, Dr.
O'Horo filed another complaint -- this time, externally, with the
Massachusetts Department of Public Health ("DPH"). She alleged
that BMC "fail[ed] to fully and adequately report complications
caused by Dr. Higgins," and that Dr. Vilvendhan's bias in favor of
Dr. Higgins corrupted BMC's internal review into Dr. Higgins's
alleged misconduct. She requested an "immediate[]
investigat[ion]" into "the complications caused by Dr. Higgins and
BMC's repeated failure to fully and adequately report said
complications."
- 9 - On December 11, 2019, BMC began the internal review
process. Dr. Vilvendhan first reviewed another doctor's
procedures and then, a day later, Dr. Higgins's procedures. But
then the internal review process was halted when DPH began its
on-site review of BMC. During the four-day review, DPH examined
BMC's medical staff bylaws and various records, including medical
records, licensing records for physicians in the IR Division,
incident reports, hospital complaint reports, committee reports,
trustee minutes, and patient safety data. It also observed IR
procedures and interviewed at least ten physicians and hospital
employees, including Drs. O'Horo, Soto, and Higgins. The notes
maintained by DPH investigators do not indicate that Dr. O'Horo
complained of gender discrimination.
Following DPH's on-site review, the internal review
process resumed. As relevant here, Dr. O'Horo was reviewed by Dr.
Vilvendhan on January 2, 2020. Shortly thereafter, Dr. O'Horo
avers, a schedule of additional reviews was released, showing Dr.
O'Horo scheduled to be observed more than her male colleagues.
Notwithstanding the scheduling discrepancy, it is undisputed that
Dr. O'Horo was, in fact, observed by Dr. Vilvendhan only one time.
On January 23, 2020, DPH informed BMC that Dr. O'Horo's
complaint was "unsubstantiated," concluding that there were no
violations of federal regulations promulgated by the Centers for
Medicare and Medicaid Services. DPH still held a final meeting
- 10 - with BMC officials to share with them "clear opportunities to
improve services in IR."3
4. Dr. O'Horo's Departure from BMC
Three days before DPH released its findings to BMC, Dr.
O'Horo resigned. In Dr. O'Horo's January 20, 2020 resignation
letter to Drs. Davidoff, Moses, and Soto, she claimed that she had
been "constructively discharged . . . effective immediately." She
stated that "the working conditions ha[d] become so intolerable
that [she] c[ould] no longer work at BMC." In text messages to
colleagues from around that time, Dr. O'Horo expressed, among other
things, that she was relieved to have left BMC, she had
strategically timed her exit to bolster her legal case, and she
had hoped that her departure would reflect poorly on Dr. Soto.
B. Procedural History
On August 20, 2020, Dr. O'Horo filed with both the
Massachusetts Commission Against Discrimination and the U.S. Equal
Employment Opportunity Commission a charge against BMC, BUMCR, and
Dr. Soto. The charge alleges that Dr. O'Horo endured gender
discrimination and eventually was constructively discharged for
3 In January 2020, BMC also engaged an outside consulting agency, The Greeley Company ("Greeley"), to conduct the external review of the IR division. Dr. O'Horo contends that she was excluded from the process for selecting external reviewers. In any event, Greeley's report, issued in April 2020, found that of the thirty-five cases involving Dr. Higgins that it had reviewed, eighteen were considered "not appropriate," ten were deemed "questionable," and only seven were adjudged as appropriate.
- 11 - "her complaints [to DPH] and BMC's retaliation stemming
therefrom." On December 29, 2020, Dr. O'Horo filed suit in the
United States District Court for the District of Massachusetts,
asserting the following claims: gender discrimination in violation
of Title VII and Chapter 151B; aiding and abetting gender
discrimination in violation of Chapter 151B, § 4; retaliation in
violation of MHCWA; and respondeat superior against BUMCR.
On November 21, 2022, following considerable discovery,
Defendants-Appellees moved for summary judgment on all counts, and
the parties completed briefing.4 The district court, adopting in
its entirety the R&R issued by the magistrate judge, granted
Defendants-Appellees' motion as to all of Dr. O'Horo's claims.
The district court held that Dr. O'Horo's disparate-treatment
claims that accrued before October 25, 2019, were time barred;
that the timely disparate-treatment claims failed because there
was no materially adverse employment action; that the hostile work
environment claim was insufficient because the workplace was not
objectively hostile or abusive; that the aiding and abetting claim
flunked alongside the dismissed Chapter 151B claims because it was
entirely derivative thereof; and that the MHCWA claim faltered
At a hearing on May 31, 2023, Dr. O'Horo consented to the 4
dismissal of her Title VII claims against Dr. Soto and her respondeat superior claim against BUMCR.
- 12 - because Dr. O'Horo established neither a prima facie case nor
pretext.
Dr. O'Horo timely appealed.
II.
A. Standard of Review
We review de novo a district court's grant of summary
judgment, affirming if we agree that the record evinces no genuine
dispute of material fact and "reflects the movant's entitlement to
judgment as a matter of law." Mullane v. U.S. Dep't of Just., 113
F.4th 123, 130 (1st Cir. 2024) (quoting McKenney v. Mangino, 873
F.3d 75, 80 (1st Cir. 2017)). "[A] fact is 'material' if it 'has
the capacity to change the outcome of the [factfinder's]
determination.'" Alam & Sarker, LLC, 113 F.4th at 161 (second
alteration in original) (quoting Irobe v. U.S. Dep't of Agric.,
890 F.3d 371, 377 (1st Cir. 2018)). "[A]n issue is 'genuine' if
the evidence would enable a reasonable factfinder to decide the
issue in favor of either party." Id. (quoting Irobe, 890 F.3d at
377).
B. Title VII and Chapter 151B
We begin with Dr. O'Horo's gender discrimination claims
under Title VII and Chapter 151B. Title VII makes it unlawful for
an employer "to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to [her] compensation, terms, conditions, or
- 13 - privileges of employment, because of such individual's . . . sex."
42 U.S.C. § 2000e-2(a)(1). Massachusetts law similarly prohibits
an employer from discriminating against an employee on the basis
of sex. Mass. Gen. Laws ch. 151B § 4(1). Under both Title VII
and Chapter 151B, a plaintiff can bring claims for disparate
treatment or hostile work environment, and Dr. O'Horo does so.
See Espinal v. Nat'l Grid NE Holdings 2, LLC, 693 F.3d 31, 34-36
(1st Cir. 2012). Despite differences between the statutes and the
analyses, for reasons that will become apparent, we address the
Title VII and Chapter 151B claims together.
1. Disparate-Treatment Claim
At the outset, we note that the district court
held -- and Dr. O'Horo does not challenge on appeal -- that the
claims that accrued before October 25, 2019, are time barred. So
we review only the claims that are alleged to have accrued on or
after October 25, 2019, with the understanding, however, that the
300-day limitation period does not preclude us from considering
"as background evidence" the pre-October 25, 2019 acts. Ramírez
Rodríguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 78
n.14 (1st Cir. 2005) (quoting Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002)).
"In disparate-treatment cases, plaintiffs bear the
ultimate burden of proving that they were the victims of
intentional discrimination." Espinal, 693 F.3d at 34 (quoting Udo
- 14 - v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995)). Such discrimination
must be motivated by the plaintiff's status as a member of a
protected class. 42 U.S.C. § 2000e-2(a); Mass. Gen. Laws ch. 151B
§ 4(1). Direct evidence of discriminatory intent is not required,
but where, as here, it is not present, we employ the familiar
burden-shifting framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973), "to assess whether we can infer
discrimination from the undisputed material facts." Ing v. Tufts
Univ., 81 F.4th 77, 82 (1st Cir. 2023) (quoting Theidon v. Harvard
Univ., 948 F.3d 477, 495 (1st Cir. 2020)).
At the first step of that burden-shifting framework, the
plaintiff must establish her prima facie case, the elements of
which "var[y] according to the nature of [her] claim." Cherkaoui
v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017) (quoting
Alvarado-Santos v. Dep't of Health of P.R., 619 F.3d 126, 132 (1st
Cir. 2010)); see also Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir.
2010) ("The elements of the prima facie case depend upon the
particular type of employment decision at issue." (citation
omitted)). As relevant here, Dr. O'Horo must put forth some
evidence to demonstrate that: (1) "she is 'a member of a protected
class,'" (2) "she is 'qualified' for the job," (3) "she has
'suffer[ed] an adverse employment action at the hands of her
employer,'" and (4) "there is 'some evidence of a causal connection
between her membership in a protected class and the adverse
- 15 - employment action.'" Stratton v. Bentley Univ., 113 F.4th 25, 38
(1st Cir. 2024) (alteration in original) (quoting Luceus v. Rhode
Island, 923 F.3d 255, 258 (1st Cir. 2019)).
Once a plaintiff makes that "modest showing[, it] raises
an inference of intentional discrimination," which "shifts the
burden of production to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged employment decision."
Ahern, 629 F.3d at 54. If the defendant-employer does so, the
presumption of intentional discrimination "vanishes." Smith v.
Stratus Comput., Inc., 40 F.3d 11, 16 (1st Cir. 1994). The "burden
of production [then] reverts to the plaintiff," who must proffer
evidence tending "to show that the defendant's stated reason for
[the adverse employment action] was a pretext for discrimination."
Boykin, 93 F.4th at 60 (second alteration in original) (quoting
Udo, 54 F.3d at 12).
Applying that framework to the instant appeal, we begin
with Dr. O'Horo's prima facie case. There is no dispute that Dr.
O'Horo is a woman and thus a member of a protected class. And the
parties do not quibble over Dr. O'Horo's qualifications. Much of
the sparring occurs at the third and fourth elements -- i.e.,
whether Dr. O'Horo has demonstrated an adverse employment action
that was motivated by her gender.
Dr. O'Horo presses two distinct but overlapping theories
to establish an adverse employment action. First, she argues that
- 16 - her constructive discharge constitutes an adverse employment
action. In essence, she claims that she "had been so stripped of
actual authority for patient safety and so prevented from
fulfilling her job duties" that she was effectively demoted and
thus felt compelled to resign. See Cherkaoui, 877 F.3d at 29-30
(describing the standard for constructive discharge under both
Chapter 151B and Title VII). Her second theory arises on the heels
of the Supreme Court's decision in Muldrow v. City of St. Louis,
601 U.S. 346 (2024). She contends that Muldrow requires Title VII
plaintiffs to show only that an employment action resulted in "some
harm respecting an identifiable term or condition of employment,"
and in that way, the discrete but less significant actions that
underlie her constructive discharge theory can now independently
support her disparate-treatment claim. Id. at 355. Put
differently, Dr. O'Horo argues that because Muldrow "lowers the
bar Title VII plaintiffs must meet," employment actions that we
previously would have found to be immaterial standing alone, and
thus unactionable under Title VII, are now sufficient as long as
the action caused her some harm. Id. at 356 n.2. Under that
lowered threshold, Dr. O'Horo insists, each action that
reallocated or whittled her duties -- even if not "formally
labeled" as such -- constituted an actionable adverse employment
action.
- 17 - Accordingly, Dr. O'Horo now contends that the following
actions can independently serve as the basis of her discrimination
claims: (1) the usurpation of her duties related to the
investigation into Dr. Higgins, (2) the scheduling discrepancy and
Dr. Vilvendhan's one review of her clinical work, (3) the hostile
work environment to which she was subjected, and (4) constructive
discharge based on her constructive demotion. We address each
argument in turn.
(a) Usurpation of Duties
We begin with Dr. O'Horo's contention that
Defendants-Appellees discriminated against her by usurping her
duties related to the investigation into Dr. Higgins's misconduct.
We "bypass the prima facie case issue," however, and proceed to
step two of the McDonnell Douglas framework because Dr. O'Horo
"has not mustered enough evidence for a reasonable jury to conclude
that [Defendants-Appellees'] stated reason for [taking the action
against] her was pretextual." Luceus, 923 F.3d at 258-59 (internal
quotation marks and citations omitted).
At step two, the employer bears the burden of production
to set forth a legitimate, nondiscriminatory reason for the adverse
action. Diaz v. City of Somerville, 59 F.4th 24, 29 (1st Cir.
2023) (citing Blare v. Husky Injection Molding Sys. Bos., Inc.,
646 N.E.2d 111, 115 (Mass. 1995)). That is not an onerous task:
The employer need only articulate a reason "which, on its face,
- 18 - would justify a conclusion that" the adverse employment action was
taken for a nondiscriminatory motive. Taite v. Bridgewater State
Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021) (quoting Brader
v. Biogen Inc., 983 F.3d 39, 55 (1st Cir. 2020)); cf. Diaz, 59
F.4th at 29 ("[T]he second step . . . is the same under both
federal and state law . . . .").
Defendants-Appellees have articulated such
nondiscriminatory reasons to explain why they excluded Dr. O'Horo
from the investigation process that arose from her complaints about
Dr. Higgins.5 Specifically, they proffer that (1) Dr. O'Horo, as
the person who made the complaints, was not best suited to
investigate them; (2) there was a separate concern that Dr. O'Horo
held biases against Dr. Higgins; (3) conducting reviews was Dr.
Vilvendhan's job as the Chief of the entire IR Division; and
(4) Dr. O'Horo previously had failed to adequately review Dr.
Higgins's cases and specifically requested Dr. Vilvendhan's
assistance with reviewing some of Dr. Higgins's cases.
These reasons, on their face, are legitimate,
nondiscriminatory bases for the actions that Defendants-Appellees
5The district court did not reach steps two or three of the McDonnell Douglas analysis, nor do the parties devote much time to it in their briefing on appeal. But "we may affirm the District Court on an independent ground if that ground is manifest in the record," so we will consider the parties' briefing before the district court, in which they debated steps two and three of the McDonnell Douglas framework. Brox v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 83 F.4th 87, 98 (1st Cir. 2023).
- 19 - took. So we turn to step three, where the burden shifts back to
the plaintiff to prove pretext.
Under our Title VII jurisprudence, a plaintiff is
required at step three of the McDonnell Douglas framework to make
two showings by a preponderance of the evidence: first, that the
reasons given by the defendant-employer "w[ere] mere pretext and[,
second,] that their true motive [behind the adverse employment
action] was discriminatory." Cherkaoui, 877 F.3d at 27 (first
alteration in original) (quoting Pina v. Children's Place, 740
F.3d 785, 797 (1st Cir. 2014)). Chapter 151B does not demand as
much: Because "Massachusetts is a 'pretext only jurisdiction,'"
a plaintiff proceeding under Chapter 151B need only show that "the
[employer's] facially proper reasons given for its action against
[the plaintiff] were not the real reasons." Diaz, 59 F.4th at 29
(first alteration in original) (quoting Theidon, 948 F.3d at 505).
This distinction, though important in the appropriate case, does
not bear on the outcome of the instant appeal.
Here, Dr. O'Horo attempts to impugn
Defendants-Appellees' nondiscriminatory reasons by highlighting
alleged factual contradictions and by pointing to a comparator.
We take these arguments in sequence.
We begin with Dr. O'Horo's contention that the concerns
about her biases against Dr. Higgins were false. She points first
to an inconsistency between the record evidence and
- 20 - Defendants-Appellees' interrogatory responses. That is,
Defendants-Appellees' interrogatory responses identified six
individuals who allegedly were unsettled about Dr. O'Horo's
potential biases, but the record evidence, she maintains, shows
that only two -- Drs. Soto and Moses -- questioned her ability to
be impartial.
The inconsistency between the interrogatory responses
and record evidence is of little import. We "focus" our pretext
inquiry "on the perception of the decisionmaker," Theidon, 948
F.3d at 497 (emphasis added) (quoting Vélez v. Thermo King de P.R.,
Inc., 585 F.3d 441, 452 (1st Cir. 2009)), and whether there exist
"such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [decisionmaker's]
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence and
hence infer that the [decisionmaker] did not act for the asserted
non-discriminatory reasons," id. (quoting Adamson v. Walgreens
Co., 750 F.3d 73, 79 (1st Cir. 2014)). Here, it is undisputed
that Drs. Soto and Moses were, in large part, the decisionmakers
in directing the response to Dr. O'Horo's complaints about Dr.
Higgins. And record evidence suggests they were concerned about
Dr. O'Horo's potential biases against Dr. Higgins. It is thus
inconsequential whether four other people questioned her
motivations.
- 21 - Dr. O'Horo then attempts to undermine the veracity of
Dr. Soto's and Dr. Moses's beliefs, arguing that she informed them
of the real reason why she reported Dr. Higgins more frequently:
It was not racial or other bias, she claims, it was because of Dr.
Higgins's higher rate of complications. This logic is
unpersuasive. The determinative point is not whether the reasons
to screen Dr. O'Horo from the internal investigation process "were
real, but merely whether the decisionmakers -- [Drs. Soto and
Moses] -- believed them to be real." Mulero-Rodriguez v. Ponte,
Inc., 98 F.3d 670, 674 (1st Cir. 1996) (citation omitted); see
also Thompson v. Coca-Cola Co., 522 F.3d 168, 177 (1st Cir. 2008)
("[T]he question is not whether [the plaintiff's] or [her] fellow
employees' version is the true one, but whether [the
decisionmakers] believed what [they] had been told." (fourth and
fifth alterations in original)). Put another way, whether Dr.
O'Horo attempted to convince Drs. Soto and Moses that she did not
hold biases against Dr. Higgins is a much different question from
whether Drs. Soto and Moses, in fact, believed that she was not
biased. See Brandt v. Fitzpatrick, 957 F.3d 67, 80 (1st Cir. 2020)
("'[I]t is not enough for a plaintiff to show that the
decisionmaker acted on an incorrect perception' or 'information
that . . . later prove[d] to be inaccurate'; instead, he 'must
show that the decisionmaker did not believe in the accuracy of the
reason given for the adverse employment action.'" (second
- 22 - alteration in original) (quoting Kouvchinov v. Parametric Tech.
Corp., 537 F.3d 62, 67 (1st Cir. 2008))). And the record evidence,
indeed, suggests that how, and how frequently, Dr. O'Horo had
supervised Dr. Higgins was precisely the reason why Drs. Soto and
Moses were concerned that she held potential biases -- a far cry
from pointing out inconsistencies in Dr. Soto's and Dr. Moses's
beliefs.
Still, Dr. O'Horo protests, Defendants-Appellees' stated
reason -- i.e., to protect against potential bias -- cannot be the
true motive because Dr. Vilvendhan, an allegedly less qualified
and more biased physician, took over the investigation. Dr. O'Horo
references Dr. Vilvendhan's lack of formal training in quality and
patient safety, an attending physician's written complaint to Dr.
Soto about Dr. Vilvendhan's selection to lead the internal review,
and Dr. Higgins's written complaint about Dr. Vilvendhan's
mistreatment. Dr. O'Horo then alleges that Dr. Vilvendhan was
never accused of emotional intelligence issues or holding racial
biases against Dr. Higgins, like she was. And, she continues, Dr.
Vilvendhan was never criticized for failing to ensure compliance
with the STARS reporting policy, like she was.
We understand Dr. O'Horo to be offering Dr. Vilvendhan
as a comparator. The comparison is inapt. We have long recognized
that "[a]n employer's disparate treatment of employees in response
to behavior that legitimately offends the employer can provide
- 23 - evidence of discriminatory animus." Cocuzzo v. Trader Joe's E.
Inc., 121 F.4th 924, 933 (1st Cir. 2024) (alteration in original)
(quoting Vélez, 585 F.3d at 451); see also Yee v. Mass. State
Police, 121 N.E.3d 155, 165 (Mass. 2019) (describing comparator
requirements under Chapter 151B). The proffered comparator must
"'closely resemble' [the plaintiff] with 'respect to relevant
facts and circumstances.'" Cocuzzo, 121 F.4th at 933 (quoting
Diaz, 59 F.4th at 32). "[P]erfect replicas" are not required;
rather, "[r]easonableness is the touchstone." Ray v. Ropes & Gray
LLP, 799 F.3d 99, 114 (1st Cir. 2015) (quoting Conward v. Cambridge
Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)). At bottom, the
plaintiff "must show that the individuals with whom he [or she]
seeks to be compared have 'engaged in the same conduct without
such differentiating or mitigating circumstances that would
distinguish their conduct or the employer's treatment of them for
it.'" Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 751 (1st
Cir. 1996) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582
(6th Cir. 1992)).
Here, there exist at least two facts that materially
distinguish Dr. Vilvendhan from Dr. O'Horo. For one thing, Dr.
Vilvendhan is Dr. O'Horo's superior and has a broader mandate for
oversight. As Chief of the IR Division, he was responsible for
the overall conduct of the IR Division, including an ongoing
obligation to supervise the medical procedures conducted by all
- 24 - physicians with clinical privileges. What is more, Dr. Vilvendhan
was not prone to the same potential risk of perceived bias that
would have tainted the review had Dr. O'Horo spearheaded the
investigation. That is, unlike Dr. O'Horo, Dr. Vilvendhan did not
make the complaints that were being reviewed, nor was he accused
by a supervisor of holding racial biases against Dr. Higgins.6
Given that context, it is entirely consistent that Drs. Soto and
Moses would have chosen to screen Dr. O'Horo from the internal
investigation into Dr. Higgins. Cf. Nat'l Amusements, Inc. v.
Town of Dedham, 43 F.3d 731, 743 (1st Cir. 1995) ("While the
summary judgment mantra requires us to draw every reasonable
inference in favor of the nonmoving party, inferences, to qualify,
must flow rationally from the underlying facts; that is, a
suggested inference must ascend to what common sense and human
experience indicates is an acceptable level of probability.").
Dr. O'Horo fails to paint a clear or cohesive picture of 6
Dr. Vilvendhan's alleged biases. In fact, Dr. Vilvendhan was accused of biases both in favor of and against Dr. Higgins. On the one hand, Dr. Higgins complained in a letter to Dr. Soto that Dr. Vilvendhan mistreated and berated him and told him that he needed "babysit[ting]." On the other hand, in Dr. O'Horo's September 11, 2019 letter to Dr. Davidoff and Scott Friedman, she said that she "ha[d] concerns that Dr. Soto and Dr. Vilvendhan are not able to be impartial in [reviewing Dr. Higgins] and may even be protecting [him]." (Emphasis added). That sentiment continued even after Dr. Vilvendhan was appointed as the internal reviewer: In Dr. O'Horo's December 7, 2019 letter to DPH, she again noted that "Dr. Vilvendhan, the individual charged with overseeing each IR provider['s] quality and safety, has a professed bias toward protecting Dr. Higgins." (Emphasis added).
- 25 - Because Dr. O'Horo has raised no argument to overcome
the foregoing legitimate, nondiscriminatory reasons for excluding
her from the investigation process, she cannot base her
disparate-treatment claim on the alleged usurpation of her duties.
See Sher v. U.S. Dep't of Veterans Affs., 488 F.3d 489, 507 (1st
Cir. 2007) ("[A] plaintiff generally must offer evidence to counter
each [legitimate, nondiscriminatory] reason."); see also Rathbun
v. Autozone, Inc., 361 F.3d 62, 79 (1st Cir. 2004) (affirming grant
of summary judgment where plaintiff "call[ed] into doubt one of
several rationales that [defendant] ha[d] advanced for its
decision" and left other proffered rationales "unrebutted").
(b) Scheduling Discrepancy
We turn next to Dr. O'Horo's disparate-treatment claim
based on the scheduling discrepancy. We start at step one of the
McDonnell Douglas framework, inquiring whether Dr. O'Horo has
established a prima facie case. This part of her claim falters at
the adverse employment action requirement.
"An 'adverse employment action' is one that 'affect[s]
employment or alter[s] the conditions of the workplace."
Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)
(alterations in original) (quoting Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 61-62 (2006)). We have long held that
such an action "typically involves discrete changes in the terms
of employment, such as 'hiring, firing, failing to promote,
- 26 - reassignment with significantly different responsibilities, or a
decision causing significant change in benefits." Id. (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Dr. O'Horo is correct that the Supreme Court's recent
decision in Muldrow clarified that a plaintiff bringing a
disparate-treatment claim under Title VII need not prove that a
change in the terms and conditions of their employment resulted in
harm that is considered "significant[, or] serious, or
substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar."7 601
U.S. at 355 (internal quotation marks and citation omitted). While
that "lowers the bar Title VII plaintiffs must meet," the plaintiff
must still demonstrate that terms or conditions of her employment
have changed. See id. at 356 & n.2.
Because the scheduling of reviews here at issue did not
change the terms or conditions of Dr. O'Horo's employment, Muldrow
does not breathe new life into her claim. Our decision in Rios v.
Centerra Group LLC, 106 F.4th 101 (1st Cir. 2024), which was
7 The Muldrow decision's effect on Chapter 151B disparate-treatment claims remains to be seen. No Massachusetts appellate court has discussed it yet, nor do we need to address it for purposes of this appeal. Even if we assumed that Massachusetts courts would adopt Muldrow's rationale and remove the materiality requirement from its precedent, see Yee, 121 N.E.3d at 161-62, for the reasons we discuss, Dr. O'Horo's claim still would not pass muster.
- 27 - decided after Muldrow, is illustrative.8 There, the plaintiff
claimed that he had experienced adverse employment actions when
the employer "told him not to eat at his post, not to park his car
in the spots near the guard rest house, . . . not to use the guard
rest house bedroom to change his clothes," and "fail[ed] to provide
him with any pointers at an off-duty practice session at a shooting
range." Id. at 112-13. None of those constituted adverse
employment actions, we said, because there were no "consequences"
that could "represent [a] disadvantageous change in the terms or
conditions of [his] employment." Id. at 113. Put differently,
even though the plaintiff had allegedly identified an incident of
"disparate treatment on account of his [protected class]," he
demonstrated no "'harm' that left him 'worse off.'" Id.
Dr. O'Horo likewise makes no effort to demonstrate with
evidence how a scheduling discrepancy -- which never culminated in
more frequent reviews -- caused any consequences to "the terms or
conditions of [her] employment that left [her] worse off." Id. at
112. That is fatal to her claim based on the scheduling
Rios is a discrimination case brought under the Americans 8
with Disabilities Act ("ADA"). See 106 F.4th at 111. Nevertheless, we consulted Title VII case law in reaching that decision, noting that "[t]he relevant statutory language in Title VII and the ADA is virtually identical," and that, "in evaluating ADA discrimination cases, this Court previously has applied the same legal standards used to analyze discrimination under Title VII." Id. at 112 n.4 (citations omitted).
- 28 - discrepancy because she has shown no change in the terms or
conditions of her employment on this basis. See id. at 113.
(c) Hostile Work Environment
We next turn to Dr. O'Horo's hostile work environment
claim, noting at the outset that Defendants-Appellees have not
disputed the timeliness of that claim. Nor could they. "[B]ecause
'hostile work environment claims do not turn on single acts but on
an aggregation of hostile acts extending over a period of time,'"
we have held, "the applicable statute of limitations 'will not
exclude acts that are part of the same unlawful employment practice
if at least one act falls within the time period.'" Cordero-Suárez
v. Rodríguez, 689 F.3d 77, 82 (1st Cir. 2012) (first quoting
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002); and
then quoting Dressler v. Daniel, 315 F.3d 75, 79 (1st Cir. 2003)).
On the merits, however, is where Dr. O'Horo's claim
stalls. To prevail on a gender-based hostile work environment
claim, a plaintiff must establish the following six elements:
"(1) unwelcome harassment that was (2) severe or pervasive, and
(3) both objectively and subjectively offensive," and (4) that she
was a "member[] in a protected class, (5) that the harassment was
motivated by sex, and (6) [that there is] a basis for employer
liability."9 Maldonado-Cátala v. Mun. of Naranjito, 876 F.3d 1,
9Dr. O'Horo does not contend that there is any difference in how we evaluate a hostile work environment claim under Title VII
- 29 - 10 n.11 (1st Cir. 2017). In essence, Dr. O'Horo must show that
the "workplace was 'permeated with discriminatory intimidation,
ridicule, and insult that was sufficiently severe or pervasive to
alter the conditions of . . . [her] employment and create an
abusive working environment.'" Rivera-Rivera v. Medina & Medina,
Inc., 898 F.3d 77, 91 (1st Cir. 2018) (alteration in original)
(quoting Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir.
2006)).
Dr. O'Horo bases much of her claim on the following
allegations:
(1) that Dr. Higgins "mansplain[ed]" and spoke condescendingly to her in August 2018 and throughout 2019;
(2) that Dr. Moses called her a "square peg in a round hole";
(3) that Dr. Moses discussed with Dr. Davidoff the "interactive and emotional intelligence issues" Dr. O'Horo was having with respect to her handling of Dr. Higgins;
(4) that Dr. Moses suggested Dr. O'Horo might be targeting Dr. Higgins, who is Black, because of his race;
(5) that Dr. Vilvendhan indicated in the fall of 2018 that Dr. Soto might take more seriously Dr. O'Horo's complaints because she is a woman; and
and Chapter 151B. So we analyze both claims under the federal antidiscrimination cases. See Ponte v. Steelcase Inc., 741 F.3d 310, 319 n.9 (1st Cir. 2014).
- 30 - (6) that Drs. Soto, Moses, and Davidoff excluded Dr. O'Horo from the investigation into Dr. Higgins and thereby undermined her safety concerns.10
Even if we assume as true Dr. O'Horo's version of the foregoing
allegations, when viewed both individually and collectively, they
do not amount to the sort of severe and pervasive harassment based
on gender necessary to establish a hostile work environment claim.
As an initial matter, Dr. O'Horo's claim rests, in large
part, on incidents with no apparent relation to her gender, and
she makes no effort -- beyond pointing to her subjective
beliefs -- to demonstrate such gender-based discriminatory animus.
See Stratton, 113 F.4th at 51 (affirming summary judgment when
plaintiff "offer[ed] no evidence that her supervisors' reported
comments were based on or even related to her disability," and
"simply assume[d] that the[] 'snide comments' establish a
10Dr. O'Horo also directs us to a comment made by Dr. David McAneny, the Vice Chair of the Department of Surgery. According to Dr. O'Horo, Dr. McAneny stated that he would fix the issues Dr. O'Horo had identified and subsequently asked if she could buy him a six pack of beer. We will not consider this as evidence of the hostile work environment claim because Dr. O'Horo admitted at her deposition -- well after the initiation of this lawsuit -- that she was not subjectively offended. As she put it, "That was -- that was great. That was really just very empathetic on his part. I appreciated that." Accordingly, Dr. McAneny's statement cannot form the basis of her claim. See Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 27 (1st Cir. 2011) (explaining that the "objectionable conduct" must be "both objectively and subjectively offensive"); Dahms v. Cognex Corp., 914 N.E.2d 872, 885 (Mass. 2009) (noting "the settled rule that a hostile workplace claim fails if the plaintiff was not subjectively offended by the particular conduct that formed that basis of the claim").
- 31 - discriminatory environment without providing the 'surrounding
details to place the remarks in context'" (quoting Murray v. Warren
Pumps, LLC, 821 F.3d 77, 87 (1st Cir. 2016)); see also
Rivera-Rivera, 898 F.3d at 94 (1st Cir. 2018) (declining to
consider certain harassing conduct as evidence of gender
discrimination when plaintiff did not "do[] enough dot connecting
for us to conclude that the harassment she alleges has as its basis
her membership in a protected class").11
Take first Dr. O'Horo's contention that she felt Dr.
Higgins "mansplained" to her on one occasion and, throughout 2018
and 2019, treated her worse than her male colleagues. But
harassment coupled with a plaintiff's subjective belief of
discrimination "doesn't tell us much," because "there is a plethora
of reasons" why Dr. Higgins could have treated Dr. O'Horo poorly
"that have no nexus to her gender." Rivera-Rivera, 898 F.3d at
94. Indeed, the record evidence shows that Dr. Higgins had
interpersonal conflicts with many colleagues, including several
non-female ones. It is undisputed that a nursing manager brought
to Dr. Soto's attention concerns about Dr. Higgins's treatment of
male staff members; that a male resident complained of being
Stratton's hostile work environment claim was brought under 11
the ADA. 113 F.4th at 50-51. Notwithstanding, we relied on Title VII case law in reaching that decision. See id. at 51 n.24 ("Congress wrote the ADA using the language of Title VII, and Title VII recognizes hostile work environment claims." (quoting Ford v. Marion Cnty. Sheriff's Off., 942 F.3d 839, 852 (7th Cir. 2019))).
- 32 - "clearly scared to talk to [Dr. Higgins] about anything"; that Dr.
Higgins "publicly berated" a male trainee in front of his
colleagues; that another male trainee felt "unsafe" and feared
retaliation if he were to report Dr. Higgins's misconduct; and
that Dr. Leo Campos, a male interventional radiologist, also
complained to BMC leadership of conflicts with Dr. Higgins. In
other words, the record evidence suggests that Dr. Higgins's
interpersonal conflicts were not unique to Dr. O'Horo,
specifically, or women, generally; rather, Dr. Higgins treated
many of his colleagues, including non-female ones, the same:
poorly. And "generally disagreeable behavior" without
discriminatory animus is beyond Title VII's purview. Ahern, 629
F.3d at 59; see also Rodríguez-Severino v. UTC Aerospace Sys., 52
F.4th 448, 464-65 (1st Cir. 2022) ("The Supreme Court has cautioned
that Title VII does not set forth a general civility code for the
American workplace." (internal quotation marks and citations
omitted)).
Besides her subjective beliefs, which are patently
insufficient at this stage, see Henderson v. Mass. Bay Transp.
Auth., 977 F.3d 20, 29 (1st Cir. 2020), Dr. O'Horo presents no
evidence to connect Dr. Higgins's conduct to gender-based
discriminatory animus. So we will not consider the tense, but
nondiscriminatory, relationship between Dr. O'Horo and Dr. Higgins
in analyzing her hostile work environment claim.
- 33 - Same goes for three of the four statements proffered by
Dr. O'Horo, namely, that Dr. Moses called her a "square peg in a
round hole," that Dr. Moses discussed with Dr. Davidoff the
"interactive and emotional intelligence issues" Dr. O'Horo was
having with respect to Dr. Higgins, and that Dr. Moses suggested
that Dr. O'Horo held racial biases against Dr. Higgins. Viewed
through an objective lens, these statements have no readily
apparent relation to Dr. O'Horo's gender. And, again, the record
evidence indicates that Dr. O'Horo's supervisors might have made
these statements to her (and not to male employees) for several
reasons unrelated to her gender. Rivera-Rivera, 898 F.3d at 94.
All we have to tie these comments to Dr. O'Horo's gender, though,
is Dr. O'Horo's conjecture. At the summary judgment stage, a
plaintiff offering facially neutral statements as evidence of
discriminatory motive must guide the court in demonstrating how
the statements evince discriminatory animus. Dr. O'Horo's
subjective perception, standing alone, is not enough. See
Henderson, 977 F.3d at 29.
Next, we have Dr. O'Horo's suggestion that Drs. Soto,
Moses, and Davidoff repeatedly undermined her safety concerns by
(1) screening her from the investigation into Dr. Higgins and
(2) scheduling her for reviews. As we already have explained,
however, Dr. O'Horo has not shown that the decision to screen her
from the investigations precipitated by her own complaints was
- 34 - pretextual. Nor does Dr. O'Horo connect any evidentiary dots
sufficient to demonstrate that the screening decision was made
because of Dr. O'Horo's gender. Rivera-Rivera, 898 F.3d at 94.
Although Dr. O'Horo pointed to the review calendar as
circumstantial evidence that she was scheduled to be reviewed more
than her male colleagues, she was reviewed only one time, and she
made no effort to show that it caused her any objective harm. See
Maldonado-Cátala, 876 F.3d at 10 ("The challenged conduct must be
'both objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive . . . .'"
(quoting Pérez-Cordero, 656 F.3d at 27)).
Still, even if we consider the scheduling discrepancy
alongside the remaining evidence -- i.e., Dr. Vilvendhan's comment
in the fall of 2018 that Dr. O'Horo's complaints might be taken
more seriously because she is a woman -- we fail to see a workplace
situation so severe or so pervasive with discriminatory animus
that it amounts to a hostile work environment. Our decision in
Colón-Fontánez v. Mun. of San Juan, 660 F.3d 17 (1st Cir. 2011) is
instructive. There, the plaintiff brought, among other claims, a
retaliatory hostile work environment claim under the ADA. Id. at
22. In support of that claim, she demonstrated that her supervisor
"refuse[d] to meet with her" but "permitted other employees to
come and go from her office"; "avoided Colón, required Colón to
wait, restricted Colón's access to her, and refused to amicably
- 35 - greet her in general encounters"; "threw Colón and a co-worker out
of her office, yelling at them in front of other . . . employees";
"failed to take action against various employees who made comments
against Colón"; designated Colón's co-workers to monitor her "if
she left her desk to go to the bathroom"; and excluded Colón from
a workshop. Id. at 44. Colón also highlighted several insensitive
comments relating to her protected status. Id. at 45. Those
facts, we held, "indicate[d] an uncomfortable and tense working"
environment, but "they [we]re not sufficiently severe or pervasive
to constitute a hostile work environment." Id. at 44.
So too here. The severity of the misconduct about which
Dr. O'Horo complains -- the unequal review schedule and one actual
review in January 2020 and a stray remark from Dr. Vilvendhan in
the fall of 2018 -- pales in comparison to that demonstrated by
Colón. Consequently, we cannot find that Dr. O'Horo's evidence of
gender-based conduct is sufficiently severe to withstand summary
judgment. Id. And even though "[w]e have upheld hostile work
environment claims where harassment has been more pervasive than
severe," Flood v. Bank of Am. Corp., 780 F.3d 1, 11 (1st Cir.
2015), the two incidents over a year apart come nowhere close to
establishing harassment that was "more or less constant," Marrero,
304 F.3d at 19; cf. Alvarado v. Donahoe, 687 F.3d 453, 462 (1st
Cir. 2012) (collecting cases and holding that "three discrete
verbal exchanges taking place over the course of a period spanning
- 36 - more than eight months . . . does not rise to the level of
pervasiveness . . . which we have, in the past, considered
indicative of a hostile or abusive work environment").
Therefore, we affirm the district court's ruling that
Dr. O'Horo has not established a hostile work environment claim.
(d) Constructive Discharge or Demotion
Lastly, Dr. O'Horo fashions a claim based on the theory
of constructive discharge. To the extent she grounds her claim in
the facts underlying her hostile work environment claim, our
analysis need go no further. Because "[c]reation of a hostile
work environment is a necessary predicate to a hostile-environment
constructive discharge case," Dr. O'Horo's failure to establish a
hostile work environment necessarily forecloses her
hostile-environment constructive discharge claim. Pa. State
Police v. Suders, 542 U.S. 129, 149 (2004); see also Green v.
Brennan, 578 U.S. 547, 559 (2016) (reiterating the rule "that a
hostile-work-environment claim is a 'lesser included component' of
the 'graver claim of hostile-environment constructive discharge'"
(quoting Suders, 542 U.S. at 149)).
Dr. O'Horo, however, presses another theory of
constructive discharge: She says she was constructively demoted
from her role as Director of Quality and Safety, which, in turn,
compelled her to resign. And, in support of her argument, Dr.
O'Horo cites our decision in Agosto-de-Feliciano v. Aponte-Roque,
- 37 - 889 F.2d 1209 (1st Cir. 1989) (en banc), a First Amendment
freedom-of-association -- not Title VII -- case.
Dr. O'Horo's reliance on that decision is misplaced. In
the Title VII context, we already have recognized that an
employee's "reduction from [important] duties . . . to performing
clerical work" could be an actionable adverse employment action.
Burns v. Johnson, 829 F.3d 1, 10 (1st Cir. 2016). But Dr. O'Horo's
reduction-of-duties theory holds no water because, we already have
held, she did not show pretext.
2. Chapter 151B Aiding and Abetting
Dr. O'Horo also brings a claim against Dr. Soto under
Mass. Gen. Laws ch. 151B, § 4(5), which renders it unlawful for
"any person, whether an employer or an employee or not, to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under this chapter or to attempt to do so." It is,
simply stated, an aiding and abetting claim that is "entirely
derivative of the discrimination claim" under Chapter 151B.
Abramian v. Pres. & Fellows of Harvard Coll., 731 N.E.2d 1075,
1088 (Mass. 2000). This means that where the underlying
discrimination claim is dismissed, the aiding and abetting claim
cannot stand.
Here, because we have upheld the grant of summary
judgment as to Dr. O'Horo's gender-discrimination claims, we also
- 38 - affirm the district court's holding as to the derivative aiding
and abetting claim against Dr. Soto.
C. Whistleblower Claim12
Dr. O'Horo also appeals the entry of summary judgment on
her MHCWA claim. The MHCWA prohibits a "health care facility"
from "tak[ing] any retaliatory action" -- defined as "the
discharge, suspension, demotion, harassment, denial of a promotion
or layoff or other adverse action taken against a health care
provider affecting the terms and conditions of
employment" -- because a health care provider has engaged in
certain forms of protected conduct. Mass. Gen. Laws ch. 149,
§ 187(a), (b). Dr. O'Horo alleged that she had engaged in
protected conduct when she raised her concerns about Dr. Higgins,
first with Dr. Moses in January 2019 and then in her whistleblower
letters later that year. She contended that BMC had then taken
"retaliatory action" against her by (1) selecting another doctor
for a speaking engagement at a conference in Argentina; (2)
assigning two administrative roles, which the parties call
"directorships," to other doctors; and (3) constructively
discharging her by taking the actions that we have previously
detailed.
We refer in this section primarily to BMC, because it is 12
the only party against whom Dr. O'Horo brought her MHCWA claim.
- 39 - In its motion for summary judgment, BMC argued that the
alleged retaliatory actions did not qualify as such under the MHCWA
and that Dr. O'Horo had not presented evidence of a causal link
between her protected conduct and those actions sufficient to
create a trialworthy issue. Applying the burden-shifting
framework outlined in McDonnell Douglas, the district court held
that Dr. O'Horo had failed to make a prima facie showing that she
had been constructively discharged or that her protected conduct
had caused BMC to pass her over for the speaking engagement in
Argentina. The court also concluded that Dr. O'Horo had not made
a prima facie showing that her non-selections for the directorships
qualified as "retaliatory action[s]," reasoning that because there
was no evidence the two positions would afford her any benefits
that she did not already receive in connection with her own
directorship, her non-selections did not alter the "terms or
conditions" of her employment. Mass. Gen. Laws ch. 149, § 187(a).
In the alternative, the court determined that BMC had articulated
a legitimate, nondiscriminatory reason for her non-selections that
Dr. O'Horo had failed to show was pretextual: namely, that her
directorship came with better financial support than the others,
such that those positions would have essentially amounted to
demotions.
On appeal, Dr. O'Horo disputes nearly all of the district
court's conclusions. Before reaching her arguments, however, we
- 40 - are faced with a threshold question: should we evaluate the
evidence pertaining to Dr. O'Horo's MHCWA claim under the McDonnell
Douglas burden-shifting framework? We are aware of no decision
rendered by a Massachusetts appellate court addressing whether
McDonnell Douglas applies to claims brought under the MHCWA.13 The
absence of authority likely would be irrelevant if the McDonnell
Douglas framework were a rule of procedure which merely
"regulate[d] just the order of proof and the allocation of burdens
of production and ha[d] no substantive implications," Bourbon v.
Kmart Corp., 223 F.3d 469, 476 (7th Cir. 2000) (Posner, J.,
concurring), since federal courts supply their own procedural
rules when adjudicating state-law claims, see Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
398-99, 406-07 (2010); see also id. at 418-19, 422 (Stevens, J.,
concurring in part and concurring in the judgment). But we have
not decided whether the McDonnell Douglas framework provides a
procedural rule or is instead substantive federal law. See
Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 345-46 (1st
Cir. 2018). And, if we were to determine that it were substantive
law, then we (and the district court) could not apply it to an
13The sole decision issued by a Massachusetts appellate court reviewing the entry of summary judgment on an MHCWA claim on the merits was decided against the plaintiff without reference to McDonnell Douglas. See Romero v. UHS of Westwood Pembroke, Inc., 893 N.E.2d 355, 358-60 (Mass. App. Ct. 2008).
- 41 - MHCWA claim unless we were to conclude that the SJC would do the
same; that is, unless we were to determine that, notwithstanding
its federal origins, the SJC would adopt the McDonnell Douglas
framework as Massachusetts substantive law applicable to the
MHCWA. Cf. Turner v. Marathon Petroleum Co., 804 F. App'x 375,
377 (6th Cir. 2020) ("Kentucky courts have themselves long used
the McDonnell Douglas approach to resolve claims under the Kentucky
Civil Rights Act. So even if the federal burden-shifting approach
were substantive, it would still apply here as a matter of state
law." (citations omitted)).
We may bypass these issues, however, because, as we
explain below, Dr. O'Horo has not adduced sufficient evidence to
proceed to trial even with the benefit of McDonnell Douglas's
burden-shifting framework. Cf. Theriault, 890 F.3d at 351
(declining to decide whether McDonnell Douglas's framework was
substantive or procedural because the plaintiff was required to
"adduce precisely the same quantum of proof [under the Maine
statute there at issue] that she would have had to adduce to defeat
summary judgment under the McDonnell Douglas framework"). We
therefore address Dr. O'Horo's claims under the McDonnell Douglas
framework, without deciding its applicability.
With respect to the selection of another doctor for the
speaking engagement in Argentina, the district court correctly
concluded that Dr. O'Horo's protected conduct postdated the
- 42 - selection and therefore could not have been the reason she was
passed over. See Muñoz v. Sociedad Española de Auxilio Mutuo y
Beneficiencia de P.R., 671 F.3d 49, 56 (1st Cir. 2012) ("Absent
special circumstances . . . an adverse employment decision that
predates a protected activity cannot be caused by that activity.").
Dr. O'Horo disputes this chronology, arguing that the court erred
by crediting Dr. Soto's "bald . . . [and] self-serving" claim,
made in an affidavit submitted in support of Defendants-Appellees'
motion for summary judgment, that the other doctor had been invited
in 2018, before Dr. O'Horo raised her concerns about Dr. Higgins
with Dr. Moses in January 2019. But the affidavit was properly
considered, see Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 53 (1st Cir. 2000), and was corroborated by an email
chain showing that the invitation in fact had been extended in
December 2018.
There was likewise no error in the district court's
conclusion that Dr. O'Horo could not show a causal link between
her protected conduct and her non-selections for the two
directorships. Dr. O'Horo characterizes the non-selections as
denials of "lateral promotions," which, she contends, can
constitute retaliatory action under the MHCWA. And she asserts
that weaknesses in BMC's explanation for her
non-selections -- that the positions offered less favorable
benefits and compensation than the one she already held -- permit
- 43 - a reasonable jury to infer pretext. We disagree. Even assuming
that Dr. O'Horo's non-selections amounted to denials of "lateral
promotions" and that such denials are cognizable as "retaliatory
actions" under the MHCWA, the district court correctly concluded
that Dr. O'Horo had not provided sufficient evidence of pretext to
permit her claim to proceed to trial.
Start with temporal proximity. Dr. Higgins was selected
for one of the directorships approximately a week after Dr. O'Horo
sent her first whistleblower letter, and at some subsequent point,
the other position was offered to another doctor. This is close
in time, to be sure, but we have found even "very close" temporal
proximity, perhaps adequate to make a prima facie showing of
causation, Ahern, 629 F.3d at 58 (quoting Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001)), still insufficient, without
more, to establish pretext, see, e.g., Echevarría v. AstraZeneca
Pharm. LP, 856 F.3d 119, 138 (1st Cir. 2017) (one day between
protected conduct and alleged retaliatory action insufficient to
establish pretext); Alvarado, 687 F.3d 463-64 (same, but one week);
Carreras v. Sajo, García & Partners, 596 F.3d 25, 38 (1st Cir.
2010) (same, but four days). Dr. O'Horo offers no reason why we
should reach a different conclusion here.
If Dr. O'Horo could pair the temporal proximity between
her protected conduct and the two non-selections with other
evidence undermining BMC's stated reason for not having chosen
- 44 - her, her non-selection claim might withstand summary judgment.
See, e.g., Fournier v. Massachusetts, No. 20-2134, 2021 WL 4191942,
at *4 (1st Cir. Sept. 15, 2021) (reversing grant of summary
judgment where close temporal proximity was combined with other
evidence); Harrington v. Aggregate Indus.-Ne. Region, Inc., 668
F.3d 25, 33-35 (1st Cir. 2012) (same). But instead, "[t]he larger
picture undercuts any claim of causation." Pena v. Honeywell
Int'l, Inc., 923 F.3d 18, 33 (1st Cir. 2019) (alteration in
original) (quoting Soileau v. Guilford of Me., Inc., 105 F.3d 12,
16 (1st Cir. 1997)). Dr. O'Horo does not point to evidence showing
that, contrary to BMC's explanation, the other directorships would
have been more advantageous in their allotted academic time and
funding, or to changes or inconsistencies in BMC's explanation for
her non-selections which might permit a finding of pretext. See
Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 49 (1st Cir.
2019). Nor has she offered other evidence that might permit a
jury to infer a retaliatory motive for her non-selection.14 For
instance, nothing in the record indicates that BMC officials
thought that Dr. O'Horo would have preferred the other
14Dr. O'Horo argues that several other facts -- namely, BMC's failure to post the directorship positions and the lack of objective criteria and written guidelines for filling them -- evidence retaliation. But Dr. O'Horo provides no evidence to suggest that this was not BMC's standard process for filling directorship positions. Such a change in processes would be necessary to suggest that BMC was motivated by retaliation for protected conduct.
- 45 - directorships to her own or believed that those positions were
superior.
Dr. O'Horo alternatively argues that she could have
simultaneously held multiple directorships which, she submits,
belies the explanation offered by BMC for her non-selections by
rendering the relative desirability of the three positions
irrelevant. She principally relies on the fact that Dr. Higgins
at one point held two directorships. But, as BMC notes (and Dr.
O'Horo provides no evidence to rebut), when Dr. Higgins assumed a
second directorship, he was the only interventional radiologist
remaining in the department.15 Dr. O'Horo has provided no evidence
suggesting that, when there were multiple interventional
radiologists in the department, physicians would or could hold
more than one directorship.16 Rather, as BMC explained,
directorships were assigned to physicians who did not already have
leadership roles in the department. And here, again, Dr. O'Horo
has pointed to nothing in the record to the contrary.
Dr. O'Horo also relies on the fact that Dr. Vilvendhan's 15
replacement as division chief simultaneously held that position and her former role as director of quality and safety. But the record reflects that this also occurred when BMC was short-staffed. Indeed, as BMC noted below, when Dr. Higgins accepted one 16
of the directorships for which Dr. O'Horo claims she was retaliatorily not selected, he gave up a different directorship in order to do so.
- 46 - We also agree with the district court, for the reasons
we have previously explained, that Dr. O'Horo was not
constructively discharged.17 On appeal, Dr. O'Horo shifts her
focus, arguing that the actions that together comprised her alleged
constructive discharge are each individually sufficient to
constitute "retaliatory action" under the MHCWA. Dr. O'Horo did
not press this theory below, and even assuming that she can alter
her claims in this manner on appeal, but see United States v.
Leach, 89 F.4th 189, 200-01 (1st Cir. 2023) ("A party cannot
preserve a claim of error by switching horses in midstream, that
is, by making one claim below and a different claim on appeal."),
they still cannot survive summary judgment.
None of the components of Dr. O'Horo's constructive
discharge claim are sufficient, standing alone, to sustain a MHCWA
17The district court's ruling relied, in part, on certain of Dr. O'Horo's communications with colleagues in which she characterized her departure from BMC as a resignation and expressed that she strategically timed her exit to strengthen her legal case. The district court read these communications as revealing Dr. O'Horo's subjective beliefs that she had resigned, rather than had been constructively discharged. Given the other evidence in the record showing Dr. O'Horo's ill feelings about the working environment and subjective offense to certain actions, however, these texts raised a credibility issue on the subject of whether she was subjectively offended best reserved for the factfinder. Cf. Gerald v. Univ. of P.R., 707 F.3d 7, 17-19 (1st Cir. 2013) (holding that there was adequate evidence of subjective offense to withstand summary judgment even where plaintiff had sent the harassing defendant "joking emails . . . after each of the three [incidents]" and expressed to colleagues that "she could work with [the harassing defendant] and wanted to repair things with him").
- 47 - claim. The fact that BMC chose someone else to lead the
investigation of Dr. Higgins and did not let Dr. O'Horo play her
desired role in the external review of the IR Division does not,
as we have explained, show gendered animus; for substantially the
same reasons, it does not show retaliatory animus either. Dr.
O'Horo's allegation that she was excluded from a meeting is
undermined by emails reflecting that she was invited to the meeting
but declined to attend it. And the fact that Dr. O'Horo was
scheduled to be reviewed somewhat more frequently than other
doctors does not constitute a "retaliatory action" under the MHCWA.
Dr. O'Horo argues otherwise, pointing to the MHCWA's prohibition
on retaliatory "harassment," which she contends encompasses the
scheduling discrepancy to which she was subjected. But we do not
interpret statutory language in a vacuum, and Dr. O'Horo's reading
ignores important context. See Util. Air Regul. Grp. v. EPA, 573
U.S. 302, 320 (2014). Each of the MHCWA's other enumerated
"retaliatory action[s]" -- "discharge, suspension,
demotion, . . . denial of a promotion[, and] layoff," Mass. Gen.
Laws ch. 149, § 187(a) -- amount to something analogous to an
"adverse employment action," as the term is used under other civil
rights statutes, see Stratton, 113 F.4th at 38, 41 n.10, and the
MHCWA's catch-all clause, which encompasses "other adverse
action[s] . . . affecting the terms and conditions of employment,"
further suggests an interpretation of the term "harassment" that
- 48 - likewise covers only conduct sufficient to affect the terms or
conditions of the plaintiff's employment, Mass. Gen. Laws ch. 149,
§ 187(a). The scheduling discrepancy, which resulted in only one
review, does not meet that standard because, as we have explained,
she did not show any harm to a term or condition of employment.
Cf. Rios, 106 F.4th at 112 (holding plaintiff "must at least offer
evidence of a change in the terms or conditions of his employment
that left him worse off").
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
- 49 -
Related
Cite This Page — Counsel Stack
O'Horo v. Boston Medical Center Corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohoro-v-boston-medical-center-corporation-ca1-2025.