A jury finds that a promising woman neurosurgeon was bumped off-track by a campaign of sex harassment and retaliation, in violation of Title VII and Massachusettes civil rights law. The First Circuit affirms awards of $600,000 against the Hospital in compensatory damages on the retaliation claim and $1,000,000 in compensatory damages against it on the hostile work environment claim (with lesser awards for other state law claims), and $1,352,525.94 in attorneys' fees.
Tuli v. Brigham & Women's Hospital, No. 09-1597 (1st Cir. Aug. 29, 2011): The focus of the case was conflict between the plaintiff and her former supervisor Dr. Arthur Day. Tuli served as "the department's professionalism officer and representative to the Hospital's Quality Assurance and Risk Management Committee ('QARM'), which required her to investigate and in some cases report on other doctors' case complications." She reported three cases to the hospital (ultimately referred to the state's licensing board) and concluded that Day's "behavior toward women has been consistently inappropriate and demeaning."
Day testified to a five-year period during which she was subject to a barrage of incidents by Day (and another surgeon named Kim), including her regularly being ignored, being called a "girl" or "little girl," having her professional credentials questioned, being hugged and touched, and getting propositioned. "Tuli repeatedly complained about these acts, but the Hospital did nothing to prevent their repetition."
The First Circuit affirms the verdict of sex harassment, holding that:
1. The chronology of events was sufficiently severe or pervasive to support liability for a hostile work environment;
2. The most recent events occurred within 300 days of her filing a timely charge with the Massachusetts Commission Against Discrimination, thus preserving the entire history of harassment as a continuing violation;
3. Her complaint to Dr. Anthony Whittemore, the chief medical officer of the Hospital, was sufficient - even if not a "formal" complaint - to ward off a Faragher/Ellerth affirmative defense, where Wittemore "discouraged a formal complaint, conceding that Tuli's fear of retaliation was reasonable and known to him" (and alternatively, Massachusettes state law did not recognize such a defense, and the employer took a "tangible employment action" against Tuli); and
4. The evidence of the harassing statements was admissible over a hearsay objection "because the statements in question were not admitted for the truth of the matter asserted."
The First Circuit also affirms the retaliation judgment, based on her protected activity of complaining about the harassment, holding that:
1. The consequences of being ordered into psychological counselling by the Hospital - "invasion of privacy, potential stigma, and possible impact on employment and licensing elsewhere - 'might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'"
2. Under Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), the hospital could be held liable because Dr. Day, as department head, proximately caused the hospital board to order Tuli into psychological treatment ("Day presented the case even though he had been the subject of adverse critiques by Tuli of his own performance as part of her official responsibilities and Day was the subject of her complaints about Day's own wrongful conduct toward her"); and
3. Even the supposedly neutral second level of review was tainted because "Whittemore was himself relying in part on information from Day, and he did not tell the committee of the complaints that Tuli had made about Day; although some members were apparently aware of some of the background, it was not disclosed at the meeting."
The First Circuit also affirms denial of remittitur: "Tuli described her day-to-day existence after Day's presentation as 'hell,' with the looming threat of losing her credentials acting 'like a gun to [her] head.' She could not eat or sleep and lost ten pounds. She experienced anxiety, anger, fear, and nervousness, which included physical manifestations of abdominal pain and nausea." Although there was no expert medical testimony, "such testimony although helpful is not required to show emotional harm." (The awards are not capped under Title VII at $300,000 because the state-law awards are uncapped.)
The attorney's fee award is also affirmed, including time spent on obtaining a preliminary injunction that the "Hospital says should never have been entered. We regard that injunction, to the extent it still matters, as properly entered. Much of the evidence pertinent to the committee's requirement was already in the record at the time of that injunction and nothing suggested that Tuli posed any imminent or serious threat to public health or safety."