Kirk v . Hitchcock CV-98-700-M 09/29/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Eileen Kirk, M.D., Plaintiff

v. Civil N o . 98-700-M Opinion N o .

The Hitchcock Clinic, Mary Hitchcock Memorial Hospital, Dartmouth Hitchcock Medical Center, Dartmouth College, Dartmouth Medical School, Lisabeth Maloney, Barry Smith, Thomas Colacchio, and Ellen Hubbell, Defendants

O R D E R

Eileen Kirk, M.D. (Kirk), brings this action against her

former employer, The Hitchcock Clinic, as well as Mary Hitchcock

Memorial Hospital, Dartmouth Hitchcock Medical Center, Dartmouth

College, Dartmouth Medical School, and three physicians (Maloney,

Smith, and Colacchio) and a nurse (Hubbell) with whom she worked

(collectively Defendants), seeking relief for alleged gender

discrimination in violation of Title VII of the Civil Rights Act

of 1964 (Title V I I ) . See 42 U.S.C. § 2000e, et seq. She also

asserts common law claims of defamation, interference with advantageous business relations, and wrongful discharge.

Defendants have moved for summary judgment on all claims.

Plaintiff objects. The motion is granted in part and denied in

part.

Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). When ruling upon a party’s motion for summary judgment,

the court must “view the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.” Griggs-Ryan v .

Smith,

1 2 , 115 (1st Cir. 1990).

The moving party “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v . Catrett,

1 7 , 323 (1986). If the

moving party carries its burden, the burden shifts to the

2 nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. See DeNovellis v . Shalala,

9 8 , 306 (1st Cir. 1997).

At this stage, the nonmoving party “may not rest upon mere

allegation or denials of [the movant’s] pleading, but must set

forth specific facts showing that there is a genuine issue” of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial.

(quoting Anderson v .

Liberty Lobby, Inc.,

4 2 , 256 (1986)). In this context,

“a fact is ‘material’ if it potentially affects the outcome of

the suit and a dispute over it is ‘genuine’ if the parties’

positions on the issue are supported by conflicting evidence.”

Intern’l Ass’n of Machinists and Aerospace Workers v . Winship

Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Factual Background

Kirk, a medical doctor, began working for the Hitchcock

Clinic (Clinic) in September of 1992 in the Department of

3 Obstetrics and Gynecology (OB/GYN). Her position was accompanied

by appointments to the medical staff of Mary Hitchcock Memorial

Hospital and Dartmouth Medical School, contingent upon her

continued employment at the Clinic. As a standard condition of

her employment, Kirk received annual reviews based, in part, on

assessments by Clinic staff of her professional performance

during the previous year. She became eligible for “voting

membership” in the Clinic in October of 1997. Voting membership

is essentially a permanent position equivalent to tenure in an

academic institution. Kirk was reappointed to her position in

1993, 1994, 1995, and 1996. On October 2 3 , 1997, however, the

Clinic’s Board of Governors voted 23-0 to deny her voting

membership and to terminate her employment. At the time Kirk was

terminated, she maintained one of the largest OB/GYN practices at

the Clinic and was the only full-time female OB/GYN generalist.

For purposes of these proceedings Kirk’s employment with the

Clinic was uneventful before 1994. In the fall of 1994 medical

complications arose during a birth for which Kirk was

responsible, resulting in brain damage to the baby. She

investigated possible causes of the unfortunate occurrence and,

4 by the spring of 1995, she began reporting concerns about

violations of practice standards, rules, and regulations

promulgated by various health care organizations occurring within

the Clinic’s labor and delivery ward (the Birthing Pavilion).

Her concerns related to issues of quality improvement, quality

assessment, quality assurance, quality assurance/improvement

monitoring, nurse staffing, nurse competency, and various

standards relating to the medical staff, nursing leadership,

administration, and governing body (“quality assurance

concerns”). During the period between 1995 and Kirk’s

termination in 1997, she continued to raise quality assurance

concerns within the Birthing Pavilion and continually requested

an external review of its operation.

Sometime in 1996, the Clinic entered into negotiations with

the Alice Peck Day Hospital (APD) to provide APD with obstetrical

services. Kirk became aware of these negotiations in the summer

of 1996 and, because she felt she was making little progress in

resolving what she perceived to be legitimate patient care issues

within the Birthing Pavilion, she requested assignment to APD.

Dr. John Currie (Currie), who served as the Clinic’s chairman of

5 the OB/GYN department, and was responsible for assigning Clinic

doctors to APD, refused to send Kirk because “she was a woman.”1

Kirk reported Currie’s comment to Maloney, the Medical

Director, who in turn contacted Mary Childers (Childers), then

responsible for equal opportunity matters at Dartmouth College,

and requested an internal investigation. Based on her

investigation, Childers concluded that Currie’s remark did not

evidence discriminatory treatment but represented a business

decision.2 Childers reported her preliminary conclusions to

Kirk. At some point, Kirk was informed that if she desired, she

could file a formal written complaint which would be investigated

by the Clinic’s Human Resources Department.

On August 2 1 , 1996, Kirk was told by Colacchio that her

annual appointment was being challenged due to the environment in

labor and delivery which he attributed to Kirk. On September 3 ,

1 The record is not clear as to the exact words Currie used but “because ‘she was a woman’” is the language cited by Kirk and therefore will be accepted for purposes of this motion. See P l . Opp. to Summary Judgment at 5 . 2 Childers likened Currie’s decision to that of selecting women to teach female physical education classes. That i s , the Clinic had a business reason for retaining Kirk (and her large OB/GYN practice) at the Clinic.

6 Childers sent an email to Maloney, Colacchio, and Currie

suggesting that failure to reappoint Kirk could result in her

filing a lawsuit. On September 6, 1996, while Kirk was attending

a conference in Washington, D.C., Maloney telephoned her and

informed her that there had been a meeting among risk management

and several administrators related to her upcoming reappointment.

Kirk was told that it had been determined that, as a condition of

reappointment, she would be required to sign a statement agreeing

to several things, including: the appropriate methods for

dealing with quality assurance issues within the Birthing

Pavilion; mediation with one of the nurses with whom Kirk had

recurring difficulties; and a promise to either refrain from

accusing Currie of gender discrimination or to file a formal

written complaint. Four days later, Maloney phoned Kirk again

and reversed course – she told her she did not have to sign

anything, but she still wanted her to submit a complaint in

writing to Childers if she wished to pursue a sexual

discrimination claim. Kirk never filed a complaint. Kirk was

reappointed on September 1 2 , 1996.

7 Over the course of the following year, Kirk continued to

raise issues of quality assurance within the Birthing Pavilion.

She also discussed with the Joint Commission on Accreditation of

Health Care Organizations the possibility of an external review.

In October of 1997, 3 some difficulties arose with regard to the

care of a newborn. Kirk believed that the child’s records had

been altered and notified risk management. A short time later

Kirk was denied voting membership in the Clinic. The stated

reason for the denial was “lack of collegiality.” Kirk appealed

her termination through an internal appeals process, but the

termination was upheld. Kirk has also appealed her termination

to the New Hampshire Department of Labor under the state’s

“Whistleblowers Act.”

Discussion

Plaintiff alleges violations of Title VII in the form of

discrimination, hostile work environment, retaliation, and

3 Kirk’s Opposition to Summary Judgment places this event in “October 1996." However, based on other evidence in the record, that is apparently a typographically error.

8 disparate treatment. Defendants move for summary judgment with

respect to the Title VII claims on the following grounds:

[1.] . . . individuals may not be held liable under Title VII; [2.] . . . [Kirk] has failed to make out a prima facie case for sex discrimination; [3.] . . . there is no evidence the alleged harassment related to gender; [4.] . . . there is no evidence that Kirk’s complaining about D r . Currie’s alleged remark caused her to be

denied voting membership 17 months later.

Def. Motion for Summary Judgment at 4 (document n o . 1 3 ) .

Defendants additionally argue that Kirk’s sexual discrimination

claim, based on Currie’s asserted reason for not assigning her to

APD, is time-barred. See Def. Reply at 5 (document n o . 5 7 ) .

Kirk says in her Objection to Defendants’ motion that she

has not sued anyone in a personal capacity. Accordingly, that

issue will not be addressed. See P l . Mem. in Support of Opp’n at

2 (document n o . 4 6 ) . Each of Kirk’s Title VII claims are

addressed below.

Defendants’ argument with respect to the hostile work

environment claim can be disposed of quickly, so will be

addressed first. The remaining Title VII claims overlap in some

aspects, and will be discussed together.

9 Hostile Work Environment

To maintain a hostile work environment claim under Title

VII, a plaintiff must demonstrate that the harassment was based

on sex. See Meritor Sav. Bank, FSB v . Vinson,

7 , 66-73

(1986); Brown v . Hot, Sexy and Safer Productions,

(1st Cir. 1995). As discussed below, a “review of the record

in the light most hospitable to the party opposing summary

judgment,” demonstrates that Kirk has failed to provide evidence

establishing this fundamental element. See Griggs-Ryan,

.

Kirk maintains she was subjected to a hostile work

environment by the nurses with whom she worked in the Birthing

Pavilion. In order to avoid summary judgment, however, she must

do more that “rest on mere allegations. . . .” DeNovellis v .

Shalala, 124 F. 3d at 306. She must support her allegations with

evidence, such as depositions, answers to interrogatories,

admissions on file, and affidavits. Fed. R. Civ. P. 56(c).

Kirk’s only offer of proof that the hostile environment was

“based on sex” is that others overheard Currie’s remark in

response to her request to be assigned to APD. See P l . Sur-Reply

10 at 5 (document n o . 6 1 ) . That fact is not evidence tending to

show that the alleged hostility of nurses was related to her

gender, or even to Currie’s remark. On the contrary, as

Defendants point out, Kirk’s own deposition testimony contradicts

her allegation that the allegedly hostile environment was based

on sex:

Q: Well, is it your contention that the group that is hostile to you is because you were a woman, is that your contention? A: N o , they were hostile because I had raised issues and blown their confidences with regards to things they had said about the Klonosky case, things they had said about Ellen Hubbell. They were close confidants and friends of mine. And they saw the bad care the patients were getting; and when I stood u p , they had to disassociate themselves. I don’t think they wanted to put their job in jeopardy.

Def. Ex. in Support of Motion for Summary Judgment, 1:B, Kirk

Depo. 2:33. Furthermore, Kirk states in her Complaint that

“[t]ransferring to [APD] would have allowed D r . Kirk to be

removed from the hostile environment which had been created by

nursing personnel under Hubbell’s supervision and at Hubbell’s

direction,” thereby conceding the so-called hostile work

environment pre-dated the APD incident. See Complaint ¶ 14

(document n o . 1 ) . Because an issue must be supported by evidence

11 in order to be “genuine,” and the only record evidence concerning

the alleged hostile work environment is Kirk’s own words

asserting the hostility stemmed from her complaints about patient

care and issues other than gender, Kirk has not demonstrated a

triable issue on her hostile environment claim. See DeNovellis

v . Shalala, 124 F. 3d at 306.

Remaining Title VII Claims

Kirk contends that summary judgment should be denied because

she has asserted a colorable claim under Title VII. P l . Mem. in

Opp’n at 25 (document n o . 4 6 ) . The structure of her argument

seems to be as follows. Kirk was subjected to a discriminatory

act in the summer of 1996. She reported the incident to her

employer. She was reappointed in September 1996, because her

employer feared she would file “a law suit in which the sex

discrimination charge is an opportunity for redressing issues

unrelated to it.” P l . Sur-Reply, Ex. G (email from Childers to

Maloney, Colacchio, and Currie) (document n o . 6 1 ) . This

influence on her 1996 reappointment, Kirk’s argument goes, is

evidence that her termination in 1997 was, at least in part, in

12 retaliation for making a sexual discrimination claim.

Additionally, she was subjected to sexual discrimination in the

form of disparate treatment when she was terminated for “non-

collegiality” because her male counterparts have retained their

jobs notwithstanding their own allegedly non-collegial acts.

Defendants respond by contending that any sexual

discrimination claim with respect to APD is time barred; Kirk’s

termination was not in retaliation for her sexual discrimination

complaint, but rather was based on her lack of collegiality

arising from her approach to addressing quality assurance issues

within the Birthing Pavilion as well as her inability to work

with others in her department; and, Kirk has not presented any

evidence supporting a claim of disparate treatment. Based on the

record, Defendants are correct.

1. The APD Incident

Before a plaintiff may bring suit based on sexual

discrimination in federal court, charges must first be filed with

the Equal Employment Opportunity Commission (EEOC) within 180

days of the discriminatory act (unless the charge is first filed

13 with an authorized state agency, in which case it must be filed

with the EEOC within 300 days). See 42 U.S.C.A. § 2000e-5(e);

Kelley v . School Administration Unit # 5 4 , N o . 98-439-M, slip o p .

at 11 (D.N.H. July 2 2 , 1999). New Hampshire is a deferral state,

in which a claimant enjoys the benefit of the full 300-day filing

period, and may file with either the EEOC or the New Hampshire

Commission for Human Rights (NHCHR) within that period. See

Kelley, N o . 98-439-M, slip o p . at 1 1 .

In this case, the APD incident occurred in the summer of

1996.4 Kirk filed her claim with NHCHR in July of 1998,

obviously more than 300 days later.

Kirk’s explanation for the delay is that she was afraid she

would lose her job if she filed earlier. Whether that

explanation is plausible or not, however, the applicable time

limit may only be tolled in exceptional circumstances. See

Bonilla v . Muebles J.J. Alvarez Inc.,

(1st Cir.

1999). Generally, exceptional circumstances are ones

“effectively beyond [the plaintiff’s] control,” such as being

4 Kirk’s personal notes indicate the comment occurred on May 1 4 , 1996.

14 actively misled by the employer, followed by reliance to

plaintiff’s detriment.

Even accepting Kirk’s explanation as

true, failing to file out of fear of retaliatory action is not an

exceptional circumstance beyond her control, particularly since

Title VII provides specific remedies for retaliation. Therefore,

Kirk has not put forth a sufficient basis for tolling the filing

deadline, and any claim of discrimination based on Currie’s

refusal to assign Kirk to APD “because she is a woman” is time-

barred.

Kirk also argues that her discrimination claim should not be

time-barred because she “filed this claim as part of a pattern of

on-going discrimination” and, therefore, the clock did not start

running until her termination in October 1997, thus her complaint

was filed with NHCHR within the 300-day period. P l . Sur-Reply.

in Opp’n at 5 (document n o . 6 1 ) . She defines the “pattern of on-

going discrimination” as follows:

Based upon the Defendant[s’] internal correspondence, it is apparent the Plaintiff[‘s] Fourth reappointment was due to the Defendants’ fear of the repercussions if they failed to reappoint her. It is equally clear, the Defendants were waiting for an opportunity the following year to terminate the Plaintiff, which they did. . . .Because this adverse employment action was taken, in a large part, due to her internal attempt to

15 assert her remedies under Title V I I , the statute of limitations did not begin to “run” until the date her termination was final.

P l . Sur-Reply at 5-6.

The First Circuit has recognized two types of on-going

patterns of discrimination: serial violations and systemic

violations. See Sabree v . United Bhd. of Carpenters and Joiners,

(1st Cir. 1990). Kirk’s argument for a

“pattern of on-going discrimination” indicates she is alleging a

serial violation, as opposed to a systemic violation (in which

she would be alleging the Clinic employed a general

discriminatory practice or policy applicable to others as well).

See Jensen v . Frank,

1 7 , 523 (1st Cir. 1990).

Moreover, there is no record evidence supporting a claim of

systematic violation.

Serial violations involve recurring acts of the same type of

discrimination. See Smith v . Bath Iron Works Corp.,

(1st Cir. 1990). Kirk bases her claim of an “on-going

pattern of discrimination” on the fact that she was told she

couldn’t move to APD because she was a woman and was terminated

over a year later, allegedly because she complained about

16 Currie’s remark. Kirk’s complaint does not describe recurring

acts of the same type of discrimination. See

Rather, she

describes two discrete incidents of alleged violations of Title

VII. Accordingly, there is no basis upon which to posit a serial

violation, and extend the time period applicable to filing a

complaint related to the APD incident.

2. Retaliation

Kirk alleges she was terminated “in large part” because she

reported an incident of sexual discrimination. Defendants

contend that she was not reappointed, and not granted voting

membership, because she did not practice medicine in a

sufficiently collegial manner – a decision based on her approach

to resolving quality assurance issues and the negative effect her

approach had on the staff of the Clinic. Defendants’ position is

supported by evidence in the record.

Whether Kirk’s retaliation claim is analyzed under the mixed

motive approach or the pretext approach, the result is the same.

See McDonnell Douglas Corp. v . Green,

9 2 , 802 (1973);

Fernandes v . Costa Brothers Masonry, Inc.,

7 2 , 580-83

17 (1st Cir. 1999) (citing Price Waterhouse v . Hopkins,

(1989) 5 ). Under the mixed motive approach,

Defendants have asserted a non-Title VII protected reason for

terminating Kirk. See Fernandes,

; see also

Tanca v . Nordberg,

8 0 , 684-85 (1st Cir. 1996) (“the

mixed motive provisions of section 107 of the 1991 [Civil Rights

Act] do not apply to Title VII retaliation claims brought under

section 2000e-3" thus “the Price Waterhouse rule continues to

apply to mixed motive retaliation claims”). Even if the fact

that she reported the APD incident in the summer of 1996 played a

role in Defendants’ decision to terminate her, the fact that they

had another adequate and non-discriminatory reason to terminate

relieves them of Title VII liability under a retaliation claim.

See Tanca,

.

5 Price Waterhouse has been superceded by statute to the extent that employers cannot escape Title VII liability by showing the same discriminatory action would have been taken regardless of the discriminatory motive. See Civil Rights Act of 1991, Public Law N o . 102-166, § 1 0 7 ,

, 1075 (1991). However, the First Circuit has concluded that, based on the plain language of the statute, § 107 does not apply to retaliation claims, and therefore is irrelevant to this analysis. See Tanca v . Nordberg,

8 0 , 684 (1st Cir. 1996).

18 Similarly, Kirk has not provided sufficient evidence to

suggest Defendants’ proffered reason for her termination was

actually a pretext for a discriminatory discharge.6 See

McDonnell Douglas Corp. v . Green, 411 U.S. at 802. Viewing the

facts in the light most favorable to plaintiff, the record is

replete with evidence, including statements made by Kirk herself,

that Kirk’s professional approach to resolving quality assurance

issues was indeed creating difficulties among her colleagues at

the Clinic. The burden thus shifts back to Kirk to show

Defendants’ proffered reason for termination was pretextual.

Kirk attempts to meet that burden in two ways: (1) she offers

letters and testimony casting her in a good light, to refute the

conclusion that she behaved in a non-collegial manner, and

(2) she claims she was the victim of disparate treatment. This

is not enough. The disparate treatment claim is discussed below,

but the testimonials are insufficient to establish Defendants’

proffered reason for termination as pretextual. See King v . Town

6 The court notes that, at this juncture, its acceptance of Defendants’ reason for terminating Kirk is only for the purposes of determining whether Title VII has been violated. This conclusion has no bearing on Kirk’s state actions for wrongful discharge.

19 of Hanover,

(1st Cir. 1997) (“Although King

produced depositions and affidavits of witnesses to challenge the

appropriateness of the disciplinary action, this evidence

contesting the factual underpinnings of the reasons for the

discipline, without more, is insufficient to present a jury

question regarding the retaliation claim”).

3. Disparate Treatment

Like retaliation, disparate treatment is subject to pretext

analysis. See Conward v . Cambridge School Committee,

2 , 19 (1st Cir. 1999). To survive summary judgment on a

disparate treatment claim, plaintiff must show that “others

similarly situated to [her] in all relevant respects were treated

differently by the employer.” Conward,

9 . Kirk

attempts to do this in her Opposition to Summary Judgment by

recounting several instances in which male colleagues apparently

acted “non-collegially” but retained their jobs. P l . Mem. in

Opp’n at 20-21 (document n o . 4 6 ) . However, these allegations

20 wholly rest on hearsay accounts of her colleagues’ behavior,7 and

thus are not sufficient to establish a genuine issue of material

fact for the purposes of summary judgment. See Garside v . Osco

Drug, Inc.,

6 , 50 (1st Cir. 1990). Therefore, since,

as explained above, Defendants have put forth a supported non-

discriminatory reason for Kirk’s termination, and Kirk has failed

to point to evidence in the record establishing a genuine issue

7 Kirk cites three sources in support of her disparate treatment allegation: her own deposition testimony, the “Currie Chronology,” and an affidavit of Susan Stefan, M.D. A search of Kirk’s documents, however, does not turn up the cited pages to her deposition, or the Stefan affidavit. A review of the few applicable pages available in Defendants’ attachments reveals that her deposition testimony consists of the same hearsay accounts of alleged conduct by her male colleagues. Def. Ex. in Support of Motion for Summary Judgment 1:B (with document n o . 1 3 ) . While other documents in the record suggest the “Currie Chronology” might be classified as an exception to the hearsay rule, see Fed. R. Ev. 803(5), there is no mention of her male counterparts’ conduct in the document. Thus it offers no support for Kirk’s allegation that her male counterparts engaged in similar conduct as she but were not disciplined. Furthermore, although referenced, the Stefan affidavit is not part of the record. Kirk attempts to get around these difficulties by claiming Defendants are in possession of the documents necessary to prove her disparate treatment allegation. But Kirk has not filed a motion to compel production of the documents, nor has she filed a motion under Fed. R. Civ. P. 56(f) requesting this court to refuse to consider Defendants’ Motion for Summary Judgment o r , in the alternative, grant a continuance.

21 of fact as to whether the stated reason is pretextual, Kirk has

not met her burden and cannot avoid summary judgment.

Conclusion

Kirk has not presented evidence on any of her Title VII

claims sufficient to establish a genuine issue of material fact.

For that reason, Defendants’ Motion for Summary Judgment

(document n o . 13) with respect to the Title VII claims is

granted.

As for Kirk’s remaining state law claims, the court declines

to exercise its supplemental jurisdiction. See generally,

Camelio v . American Federation,

(1st Cir. 1998).

Accordingly, those claims are dismissed without prejudice to

refiling in state court.

The Clerk shall enter judgment in accordance with the terms

of this order and close the case.

22 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 2 9 , 2000

cc: Nancy S . Tierney, Esq. William L . Chapman, Esq. Kevin P. Light, Esq.

23