STEPHEN B. CORN v. BRIGHAM & WOMEN'S HOSPITAL & Others.

• Court: Massachusetts Appeals Court
• Decided: May 19, 2025
• Docket: 24-P-0421
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-421

STEPHEN B. CORN

vs.

BRIGHAM & WOMEN'S HOSPITAL & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Stephen B. Corn, a physician, brought this

action in the Superior Court against defendants Brigham and

Women's Hospital (BWH), Partners HealthCare System, Inc.

(Partners), and physician James P. Rathmell. The plaintiff's

amended complaint alleged (1) employment discrimination on the

basis of disability, in violation of G. L. c. 151B, against all

defendants; (2) employment discrimination on the basis of

disability under a theory of disparate impact, in violation of

G. L. c. 151B, against BWH and Partners; (3) retaliation, in

violation of G. L. c. 151B, against all defendants; (4) hostile

work environment in violation of G. L. c. 151B, against all

1 Partners Healthcare System, Inc., and James Rathmell. defendants; (5) tortious interference with a contract against

all defendants; (6) tortious interference with business

relations against all defendants; (7) fraudulent and negligent

misrepresentation, against BWH and Partners; and (8) quantum

meruit, against BWH and Partners. After a hearing, a Superior

Court judge allowed the defendants' motions for summary judgment

on all of the plaintiff's claims. We affirm.

Background. We recite the facts in the light most

favorable to the plaintiff, the party opposing summary judgment.

See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).

Partners is a hospital and physician network that includes

BWH. The plaintiff worked as an attending anesthesiologist at

BWH beginning in 1991. His duties included the clinical work of

an anesthesiologist, specifically managing anesthesia for

surgical cases, either personally or by supervising. The

plaintiff also performed nonclinical duties, including research

and educational activities.

On October 17, 2006, BWH and Partners denied the

plaintiff's particular request for accommodation of his

irritable bowel syndrome (IBS) that he not be required to work

in the operating room (OR) without the presence of another

anesthesiologist. In January 2011, BWH and Partners granted the

plaintiff's renewed request not to work alone in the OR, but

after another IBS "flare-up," the plaintiff became unable to

2 work, even with the accommodation. The plaintiff ceased

performing any clinical work and stopped treating patients after

April 2011.

Beginning in July 2011, the plaintiff was granted long-term

disability (LTD) benefits. 2 In 2012, BWH transitioned the

plaintiff to "honorary" status and recommended him for

reappointment to an academic position at Harvard Medical School

(HMS). Honorary staff are "[f]ormer members of the Medical

Staff" and "[o]ther distinguished professionals" who enjoy no

clinical or admitting privileges and may not vote, hold office,

or serve on BWH committees.

In June 2015, Rathmell became chief of BWH's anesthesiology

department. He met with the plaintiff in January 2016 to

discuss the plaintiff's activities at BWH. On March 14, 2016,

Rathmell notified the plaintiff that his HMS academic

appointment would not be renewed after his term concluded on

October 30, 2016, and that his honorary staff status would

terminate the same day.

Discussion. 1. Standard of review. We review a grant of

summary judgment de novo. See Bulwer, 473 Mass. at 680. We

view the evidence in the light most favorable to the nonmoving

2 The plaintiff will continue to receive LTD benefits, and BWH will pay the plaintiff's retirement contributions and postemployment health insurance, until he reaches age sixty- five.

3 party to determine whether, based on the undisputed facts, the

moving party is entitled to judgment as a matter of law. Id.

2. Discrimination claims. To survive summary judgment on

a claim of employment discrimination, an employee must produce

prima facie evidence of membership in a protected class, harm,

discriminatory animus, and causation. See Bulwer, 473 Mass. at

680. An employee's burden to establish "by the preponderance of

the evidence a prima facie case of discrimination" is "not

onerous." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 40

(2005). The employee "must simply produce sufficient evidence

that [the employer's] actions, if otherwise unexplained, are

more likely than not based on the consideration of impermissible

factors" (quotation and citation omitted). Id.

a. Timeliness of pre-2016 claims. A lawsuit for

employment discrimination under G. L. c. 151B must be filed

within three years of when the employee knows or should have

known that the employer's alleged discriminatory conduct caused

the employee harm. 3 See G. L. c. 151B, § 9; Silvestris v.

Tantasqua Regional Sch. Dist., 446 Mass. 756, 766 (2006). More

specifically, a cause of action for disability discrimination

An employee also is required to file an administrative 3

charge with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the alleged act of discrimination. See G. L. c. 151B, § 5. The plaintiff filed an MCAD complaint on January 5, 2017.

4 accrues when the employee knew or should have known that the

employer had refused to participate in the interactive process

of determining a reasonable accommodation, or refused to make

such an accommodation once one had been identified. See Ocean

Spray Cranberries, Inc. v. Massachusetts Comm'n Against

Discrimination, 441 Mass. 632, 643-644 (2004) (Ocean Spray).

The plaintiff filed his Superior Court complaint on March

13, 2019. Therefore, any claims for harmful employment acts

that occurred prior to March 13, 2016, which the plaintiff knew

or should have known about, are time barred. The plaintiff does

not dispute that his initial request for accommodation was

denied in 2006. Although in January 2011, BWH and Partners

allowed the plaintiff's renewed request for an accommodation,

the accommodation was discontinued when the plaintiff became ill

in April, 2011. In July 2011, the plaintiff took LTD leave, and

thereafter did not perform clinical duties, treat patients, or

work in any other compensated capacity for BWH or Partners. We

thus conclude, as did the motion judge, that the plaintiff had

actual or constructive notice of his disability discrimination

claims as early as 2006 and no later than mid-2011. His G. L.

c. 151B claims for disability discrimination, retaliation, and

hostile work environment based on pre-2016 acts by BWH and

Partners were time barred. See Silvestris, 446 Mass. at 766.

5 b. Continuing violation. We are not persuaded by the

plaintiff's assertion that the statute of limitations does not

apply to the defendants' pre-2016 behavior because their conduct

constituted a "continuing violation" beginning in 2006 and

culminating in his "termination" in 2016. The narrow exception

to the limitations period created by the continuing violation

doctrine is applicable only in situations involving systemic or

serial violations. 4 See Silvestris, 446 Mass. at 768-769;

Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 531-532

(2001). The exception requires proof that (1) there is at least

one identifiable discriminatory incident that occurred within

the limitations period, (2) the timely discriminatory act was

substantially related to the untimely acts, and (3) the untimely

act did not trigger an awareness and duty to assert a protected

right. See Ocean Spray, 441 Mass. at 642-643.

Here, we need not decide whether the plaintiff's 2016

"termination" was a discriminatory incident that was

substantially related to the alleged pre-2016 acts 5 because, as

4 The statute of limitations is not to be confused with the statute of repose that applies in a medical malpractice action against a physician. G. L. c. 260, § 4, second par. See Bellmar v. Moore, 495 Mass. 578, 581-582 (2025).

5 We note, however, that Rathmell discontinued the plaintiff's "honorary" designation more than five years after the plaintiff stopped working as a clinical anesthesiologist, and there is no evidence that the plaintiff requested any accommodation in the intervening period.

6 discussed above, the plaintiff had clear and unequivocal notice

of the defendants' refusal to accede to his request for

accommodation by 2011 at the latest. We are not persuaded by

the plaintiff's argument that he was not aware of the "full

extent" of the defendants' "misconduct" until he learned during

discovery in this case that there was no hospital policy

prohibiting his requested accommodation and other

anesthesiologists were "given the accommodations that were

denied to him." Similarly, that the plaintiff learned years

later through discovery that colleagues may have "mocked" him

privately by creating a betting pool about when he would call in

sick cannot retroactively support his claim of hostile work

environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993) (hostile work environment claim concerns discriminatory

conduct that "unreasonably interferes with an employee's work

performance"). Once his cause of action accrued, the plaintiff

was obligated to file a claim within the statutory time frame.

See Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397-398

(1994) (discrimination claim arose with notice of adverse

action, not when plaintiff learned of improper motive underlying

it). His failure to do so until 2019 was fatal to his pre-2016

claims, and those claims cannot be resuscitated by the

continuing violation doctrine in the circumstances of this case.

See Silvestris, 446 Mass. at 768-769.

7 c. Claims based on 2016 termination of "employment." The

plaintiff also argues that the motion judge erred by granting

summary judgment on claims stemming from the 2016 termination of

his honorary staff designation and teaching privileges at HMS.

He contends that there was a disputed issue of material fact

regarding whether he was "employed" within the meaning of G. L.

c. 151B between 2011 and 2016. We need not and do not reach the

issue whether the plaintiff's status while he maintained an

honorary affiliation with the defendants constituted

"employment" under c. 151B, however, because we conclude that he

failed to establish that he was a "qualified handicapped person"

after taking LTD leave in 2011.

Under G. L. c. 151B, § 4 (16), a claim of employment

discrimination based on disability requires proof that an

employee is a "qualified handicapped person" capable of

performing essential job functions of his job, either with or

without a reasonable accommodation. See Godfrey v. Globe

Newspaper Co., 457 Mass. 113, 120 (2010). A "qualified

handicapped person" is one "who is capable of performing the

essential functions of a particular job, or who would be capable

. . . with reasonable accommodation to his handicap." G. L.

c. 151B, § 1 (16). Here, the plaintiff presented no evidence

that he requested an accommodation or otherwise sought to return

to work as a practicing anesthesiologist after he began

8 receiving LTD benefits in July 2011. To the contrary, in his

LTD benefit application, the plaintiff stated that he was unable

to perform the essential functions of his position even with the

accommodation he previously had sought. Where there was no

evidence that the plaintiff could perform the essential

functions of an attending anesthesiologist, even with a

reasonable accommodation, summary judgment was proper. See

Godfrey, supra at 125 (summary judgment properly granted where

plaintiff unable to perform essential job duties, with or

without reasonable accommodation).

3. Other claims. a. Interference with contract and

business relations. In support of his argument that summary

judgment was improper on the claims of interference with

contract and business relations, the plaintiff contends only

that "viewed in the light most favorable to [him], the facts

alleged plausibly support either or both theories."

To sustain his claim of tortious interference with a

contract, the plaintiff was required to provide evidence that

(1) he had a contract with a third party; (2) the defendants

knowingly induced the third party to break that contract;

(3) the defendants' interference, in addition to being

intentional, was improper in motive or means; and (4) he was

harmed by the defendants' actions. See Psy-Ed Corp. v. Klein,

459 Mass 697, 715-716 (2011). Similarly, to survive summary

9 judgment on his claim of tortious interference with business

relations, the plaintiff was required to show (1) he had a

business relationship or contemplated contract of economic

benefit with a third party; (2) the defendants knew about the

relationship; (3) the defendants interfered with the

relationship through improper motive or means; and (4) he lost

advantage as a direct result of the defendants' conduct. See

Cavicchi v. Koski, 67 Mass. App. Ct. 654, 657 (2006).

We agree with the motion judge that there was no evidence

of any financially beneficial contract or business relationship

between the plaintiff and a third party. The affiliations the

plaintiff identified in his complaint -- honorary staff

privileges at BWH, academic appointment to HMS, and his

relationship with Boston Children's Hospital -- were without

compensation. The mere possibility of future paid engagements

through networking that might have been made possible by

maintaining an honorary or academic title did not constitute

evidence of a contemplated contract of economic benefit

necessary for the plaintiff to sustain his burden. See Owen v.

Williams, 322 Mass. 356, 361-362 (1948).

b. Fraudulent and negligent misrepresentation. The

plaintiff's fraudulent and negligent misrepresentation claims

are premised on the assumption that after 2011 he was not

employed by BWH and Partners. He contends that, to the extent

10 the defendants did not employ him, their "agents" misled him

about his status when they knew or should have known their

representations were false so that they could "benefit from his

non-clinical services, which they obtained free of charge."

To withstand summary judgment for fraudulent

misrepresentation, the plaintiff was required to produce

evidence that (1) the defendants made a false representation of

a material fact with knowledge of its falsity for the purpose of

inducing him to act on it; (2) he relied upon the

representation; and (3) he acted upon the representation to his

damage. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007).

The claim of negligent misrepresentation required proof that the

defendants (1) in the course of their business; (2) supplied

false information for the plaintiff's guidance; (3) in the

plaintiff's business transactions; (4) causing and resulting in

pecuniary loss to the plaintiff; (5) by his justifiable reliance

upon the information; and (6) failed to exercise reasonable care

in obtaining or communicating the information. See Savers Prop.

& Cas. Ins. Co. v. Admiral Ins. Agency, Inc., 61 Mass. App. Ct.

158, 169 (2004).

The plaintiff produced no evidence demonstrating that any

defendant explicitly represented to him or anyone else that he

remained an employee after he went on LTD leave. The

plaintiff's honorary staff title at BWH and academic appointment

11 at HMS did not, without more, constitute evidence of fraudulent

or negligent misrepresentation of his employment status. In

addition, the plaintiff failed to present evidence to support

his assertion that any representations by BWH or Partners were

made for the purpose of inducing him to act. We agree with the

motion judge that there was "no indication that the [d]efendants

were aware of any of [the plaintiff]'s purported opportunities

or induced him to forego [them], through false representations

or otherwise." Finally, the plaintiff's contention that he may

have suffered economic loss based on his purported reliance on

the belief that he remained an employee of BWH was nothing more

than speculation.

c. Quantum meruit. To establish a prima facie case under

a quantum meruit theory, the plaintiff was required to produce

evidence that (1) he "conferred a measurable benefit upon the

defendants"; (2) he "reasonably expected compensation from the

defendants"; and (3) "the defendants accepted the benefit with

the knowledge, actual or chargeable, of [the plaintiff's]

reasonable expectation." Finard & Co., LLC v. SITT Asset Mgt.,

79 Mass. App. Ct. 226, 229 (2011). The plaintiff asserts that,

after he stopped receiving compensation from the defendants in

2011, BWH and Partners "actively advertised [his] expertise and

used his connections to set up lectures which were of interest

to large financial donors." He argues that his claim for

12 quantum meruit is supported "[t]o the extent that [the

defendants] benefitted by his services by falsely fostering an

expectation that he was and would remain an employee." Even if

the plaintiff's actions after he began receiving LTD benefits in

July 2011 conferred a benefit upon the defendants, however,

there was no record evidence that the plaintiff expected payment

in return for activities associated with his honorary status or

that the

13 defendants had any reason to believe he anticipated such

compensation.

Judgment affirmed.

By the Court (Grant, Brennan & Toone, JJ. 6),

Clerk

Entered: May 19, 2025.

6 The panelists are listed in order of seniority.