Shervin v. Partners Healthcare System, Inc.
804 F.3d 23
| 1st Cir. | 2015Background
- Dr. Nina Shervin was an orthopedic resident in the Harvard Combined Orthopedics Residency Program (HCORP), nominally employed by Partners HealthCare, and was placed on academic probation in Feb. 2007 by program leadership.
- Shervin alleged the probation reflected gender discrimination and that, after she challenged it, she suffered ongoing retaliation (additional adverse evaluations, alleged interference with jobs, delay/limitation of medical licensure, and biased grievance handling).
- She filed an MCAD charge (Oct. 2009), then sued in federal court (Apr. 2010) asserting federal and Massachusetts discrimination and retaliation claims and state tortious-interference claims against Partners, Harvard, MGPO, and individual physicians.
- The district court granted partial summary judgment that barred use of conduct predating the 300-day limitations window (June 5, 2008 for most defendants; Dec. 30, 2008 for Harvard) as a basis for liability/damages, but allowed such evidence as background/context.
- After a 26-day jury trial the jury returned a verdict for defendants; Shervin appealed, arguing errors in limitations analysis, recusal, evidentiary rulings, and jury instructions. The First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual / Statute of limitations for discrimination and retaliation claims | Shervin: claims did not accrue until probation materially affected licensing (mid-2008); earlier acts therefore timely via tolling/continuing violation | Defs: accrual occurred when probation was imposed and its immediate burdens were known; 300-day clock ran from early 2007 | Held: accrual was at probation in Feb. 2007; limitations bar properly applied to pre-June 2008 acts |
| Continuing violation / equitable tolling / grievance tolling | Shervin: pattern of continuing acts and reliance on informal assurances/grievance process delayed filing; internal grievance invoked in Mar. 2007 tolled limitations | Defs: plaintiff knew of discrimination/retaliation early; no proper invocation of contractual grievance procedure in Mar. 2007; equitable tolling not warranted | Held: continuing violation fails (plaintiff knew and could not reasonably expect improvement); grievance exception not triggered; equitable tolling not warranted |
| Judicial recusal under 28 U.S.C. § 455(a) | Shervin: judge’s cousin (Dr. Dyer) testified and the judge’s handling created appearance of partiality requiring recusal | Defs: judge disclosed relationship pretrial; parties did not move to recuse; plaintiff waived recusal and later withdrew remedial requests | Held: waiver; judge’s prior disclosure and plaintiff’s silence/withdrawal preclude relief |
| Evidentiary exclusions of out-of-court statements and other background evidence | Shervin: excluded statements (e.g., alleged CEO remark about not rehiring her; statements by Drs. Gebhardt and McCarthy) were admissible as non-hearsay or under exceptions and were critical to show retaliatory animus and interference | Defs: statements were hearsay or not within scope of agent/decisionmaker; probative value weak and outweighed by unfair prejudice or relevance/scope problems | Held: district court did not abuse discretion — exclusions were proper under Rules 401/403/801 and were harmless where cumulative or unsupported |
| Jury instructions (limitations, adverse-action definitions, failure-to-hire standard, Travers apex inference) | Shervin: instructions misstated law and narrowed jury’s view of time-barred evidence and adverse-action standards; requested Travers-style apex instruction should have been given | Defs: instructions accurately stated law, distinguished discrimination vs. retaliation adverse-action standards, allowed time-barred evidence as background, and Travers instruction was unsupported by evidence | Held: instructions correct as given; limitations/background and adverse-action definitions proper; omission of Travers instruction not reversible because evidence insufficient and jury charge otherwise covered the issues |
| Statute of frauds instruction for tortious interference claim | Shervin: defendants failed to plead statute of frauds; instruction prejudicial | Defs: statute of frauds applied to alleged oral post-residency hire (promise in 2005 to begin in 2008) and could be presented to jury; no unfair surprise | Held: court permissibly relaxed pleading rule in equity, instruction was proper and not prejudicial; oral agreement would be unenforceable without writing |
Key Cases Cited
- Del. State Coll. v. Ricks, 449 U.S. 250 (Sup. Ct.) (accrual focuses on time of discriminatory act, not when harm peaks)
- Cuddyer v. Stop & Shop Supermkt. Co., 750 N.E.2d 928 (Mass.) (Massachusetts continuing-violation framework and three-element test)
- Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (Sup. Ct.) (time-barred discrete acts may be used as background evidence)
- Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144 (1st Cir.) (apex-of-hierarchy inference for organizational animus in limited circumstances)
- Miller v. N.H. Dep't of Corr., 296 F.3d 18 (1st Cir.) (disciplinary actions like warning letters can start limitations clock)
- Noviello v. City of Bos., 398 F.3d 76 (1st Cir.) (summary-judgment standard and view of facts for nonmoving party)
- Blackie v. Maine, 75 F.3d 716 (1st Cir.) (adverse-action standard: subjective displeasure insufficient)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct.) (summary judgment standard; "significantly probative" evidence required)