Shervin v. Partners Healthcare System Inc

2015 | Cited 0 times | First Circuit | October 9, 2015

United States Court of Appeals For the First Circuit

No. 14-1651


Plaintiff, Appellant,



Defendants, Appellees.


[Hon. Denise J. Casper, U.S. District Judge]


Kayatta, Selya and Dyk,* Circuit Judges.


Ellen Jane Zucker, with whom Burns & Levinson LLP was on brief, for appellant. Nancy Gertner, Emma Quinn-Judge, Zalkind Duncan & Bernstein LLP, Nina Joan Kimball, Kimball Brousseau LLP, Michaela May, and Law Office of Michaela C. May on brief for American Civil Liberties Union of Massachusetts, Charles Hamilton Houston Institute for Race and Justice, Massachusetts Employment Lawyers Association, Massachusetts Law Reform Institute, Jewish Alliance for Law and

____________________ * Of the Federal Circuit, sitting by designation.

Social Action, Union of Minority Neighborhoods, and Gay & Lesbian Advocates & Defenders, amici curiae. Thomas A. Reed, with whom Herbert L. Holtz, Eugene J. Sullivan III, and Holtz & Reed, LLP were on brief, for appellees Partners Healthcare System, Inc. and Massachusetts General Hospital Physicians Organization. John Patrick Coakley, with whom Stephen D. Coppolo and Murphy & Riley, P.C. were on brief, for appellee Harvard Medical School. Robert E. Burgess, with whom Edward F. Mahoney and Martin, Magnuson, McCarthy & Kenney were on brief, for appellee Harry E. Rubash, M.D. Rebecca J. Wilson, with whom Kiley M. Belliveau and Peabody & Arnold LLP were on brief, for appellee James H. Herndon, M.D.

October 9, 2015

SELYA, Circuit Judge. Plaintiff-appellant Nina Shervin,

M.D., secured admission to one of the country's most prestigious

orthopedic residency programs. When she was placed on academic

probation, she concluded that her superiors were discriminating

against her based on her gender and thereafter began retaliating

against her because she had dared to challenge the probation

decision. Bent on vindicating these suspicions, Dr. Shervin

repaired to the federal district court and sued a gallimaufry of

defendants, asserting claims under both state and federal law.

The district court whittled down Dr. Shervin's suit

during pretrial proceedings, and a 26-day jury trial ensued. The

jury returned an across-the-board verdict for the defendants. Dr.

Shervin appeals, asseverating that the district court

miscalibrated the statute of limitations, improperly denied

recusal, made several untoward evidentiary rulings, and committed

instructional errors. After careful consideration of her

asseverational array, we find no reversible error and, therefore,

affirm the judgment below.


We sketch the genesis and travel of the case, reserving

a more exegetic discussion of the facts until our appraisal of the

issues raised on appeal.

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In 2003, Dr. Shervin began her post-graduate training in

the Harvard Combined Orthopedics Residency Program (HCORP or the

program). The program is sponsored by Massachusetts General

Hospital (MGH), and training takes place at four Harvard-

affiliated teaching hospitals: MGH, Brigham and Women's Hospital

(the Brigham), Children's Hospital, and Beth Israel Deaconess

Medical Center (BIDMC). MGH and the Brigham are both under the

corporate umbrella of Partners HealthCare System, Inc. (Partners).

During her five-year residency, Dr. Shervin was nominally an

employee of Partners and worked under an employment contract with

that entity.

HCORP is governed by an executive committee comprised of

its director and the chiefs of the orthopedics departments at the

four participating hospitals. During the times relevant hereto,

Dr. James H. Herndon served as the program's director and Dr. Harry

E. Rubash served as the chief of orthopedics at MGH. Both of these

physicians were employed at MGH through a private, non-profit

corporation, Massachusetts General Hospital Physicians

Organization (MGPO), and held faculty appointments at Harvard

Medical School (Harvard).

Mid-way through the fourth year of her residency, Dr.

Herndon placed Dr. Shervin on academic probation — a decision Dr.

Shervin soon came to regard as motivated by gender bias. She

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asserts that, after she challenged the decision internally, she

was subjected to further discrimination and an onslaught of

retaliation that plagued her throughout her training and followed

her as she pursued job opportunities throughout Massachusetts.

On October 26, 2009, Dr. Shervin filed a charge of

discrimination with the Massachusetts Commission Against

Discrimination (MCAD) against Partners, Harvard, Dr. Herndon, and

Dr. Rubash. The MCAD later dismissed the charge without prejudice

upon receiving Dr. Shervin's notification that she had elected to

pursue her claims in court. See Mass. Gen. Laws ch. 151B, § 9.

In April of 2010, she sued in the federal district court, asserting

state-law claims of unlawful discrimination and retaliation

against Partners, MGPO, Harvard, Dr. Herndon, and Dr. Rubash;

federal-law claims of discrimination and retaliation against

Partners, MGPO, and Harvard; and common-law claims of tortious

interference with advantageous business relations against Partners

and Drs. Herndon and Rubash.

After extensive discovery, the defendants moved for

summary judgment on all of the claims, arguing that many were time-

barred and that the remainder were foreclosed on other grounds.

The district court granted partial summary judgment with respect

to the discrimination and retaliation claims, ruling that (for all

defendants except Harvard) conduct occurring prior to June 5, 2008

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could not serve as a basis for liability or damages. See Shervin

v. Partners Healthcare Sys., Inc., 2 F. Supp. 3d 50 , 72 (D. Mass.

2014). The court fixed this date based on the applicable 300-day

statute of limitations under federal and state discrimination

laws, see 42 U.S.C. § 2000e-5(e)(1); Mass. Gen. Laws ch. 151B,

§ 5, and a tolling agreement establishing a constructive filing

date for Dr. Shervin's suit of April 1, 2009. Harvard was not

bound by the tolling agreement, and the district court fixed its

limitations date at December 30, 2008. See Shervin, 2 F. Supp. 3d

at 72. The court was quick to add, however, that "while the

[d]efendants may not be found liable for conduct outside the

limitations period," the "jury may still be permitted to consider

untimely 'background evidence' in assessing the viability of the

actionable discrimination and retaliation claims." Id. at 71 n.10.

The court denied the summary judgment motions in all other

respects. See id. at 80.

After a lengthy trial, the jury returned a take-nothing

verdict. This timely appeal followed.

In this court, Dr. Shervin musters a plethora of claims

of error. We consider them in roughly the same order as the

underlying events occurred below.

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Dr. Shervin's flagship claim is that the district court

erred in its application of Massachusetts law, leading it to

conclude that certain alleged acts of discrimination and

retaliation were time-barred. We preface our discussion of this

issue with a brief account of the pertinent facts, taking them in

the light most favorable to the non-moving party (here, Dr.

Shervin). See Noviello v. City of Bos., 398 F.3d 76 , 84 (1st Cir.



Dr. Shervin initially did well in her residency and

received positive evaluations from her supervisors. In early 2007,

however, Dr. Herndon received a complaint from an orthopedics

fellow about Dr. Shervin's recent performance in the program. The

fellow raised specific patient care issues and expressed concerns

regarding Dr. Shervin's professionalism and technical competence.

On February 2, 2007, Dr. Herndon met with Dr. Shervin and

communicated these concerns to her. At the end of the meeting, he

placed her on academic probation, telling her that probation could

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have a serious effect on her licensure, her upcoming fellowship,1

and her ability to find a job.

A follow-up letter, dated March 7, outlined the terms of

the probation, including monthly performance evaluations;

increased monitoring; mandatory attendance at all educational

components of the program; and a ban on moonlighting. The letter

warned that if Dr. Shervin's performance continued to deteriorate,

she could be exposed to further discipline, including dismissal

from the program.

Around the same time, Dr. Herndon told Dr. Shervin's

mentor, Dr. Dennis Burke, that the reason he (Dr. Herndon) had

gone directly to probation without first issuing a warning or

undertaking counseling was due to Dr. Shervin's stoic response to

his concerns; he added that, in his 35 years of supervising

residents, he had never before disciplined a woman resident and

not seen her cry. Based largely on this comment, and on her

perception that immediate probation was not standard practice in

HCORP, Dr. Shervin concluded that Dr. Herndon's rush to judgment

had been motivated by gender bias (specifically, his

1In 2006, Dr. Shervin accepted a one-year arthroplasty fellowship at MGH, to commence shortly after the anticipated completion of her residency in June of 2008.

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"stereotypical attitude" toward women and her failure to "behave

in the way that Dr. Herndon expected [her] to behave").

Dr. Shervin voiced her concerns to Dr. Rubash in March

of 2007. According to Dr. Shervin, Dr. Rubash expressed surprise

at Dr. Herndon's decision to impose academic probation without

consulting HCORP's executive committee. But he then asked

rhetorically if she wanted to graduate from the program and

admonished her not to think of "ever filing" suit against him, Dr.

Herndon, or the program because doing so would not be beneficial

to her career.

In Dr. Shervin's view, this incident marked the

beginning of a steady stream of retaliatory and discriminatory

acts that clouded the remainder of her residency. These acts

included the zealous solicitation of negative comments about her

by Drs. Herndon and Rubash.

In late March of 2007, Dr. Shervin requested a review of

the probation decision by the executive committee. The committee

upheld the decision in early June. Dr. Shervin contends that the

review process was incomplete, biased, and lacking in basic

procedural safeguards. She also alleges that, shortly after this

review concluded, a member of the executive committee (Dr. Mark

Gebhardt) told Dr. Burke that Dr. Shervin "needs to get her head

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screwed on and realize that she is a woman in a man's specialty"

and "suck it up."

In late June of 2007, Dr. Herndon and the executive

committee extended Dr. Shervin's probation for three more months

based on allegations of poor performance on a rotation at another

hospital. Dr. Shervin says that these allegations were

unsubstantiated. She adds that, throughout the summer of 2007,

the defendants repeatedly tried to find fault with her performance

and solicited negative evaluations of her work. By September, she

felt "threatened[,] unsafe[, and] harassed."

About the time that Dr. Shervin's extended probation

ended in September of 2007, Dr. Herndon was replaced as her

residency program director (though he remained the director of the

overall residency program and a member of HCORP's executive

committee). She nevertheless complains that retaliation persisted

through her graduation from the program in June of 2008.2

2 The claimed retaliation between September 2007 and June 2008 appears to consist primarily of the executive committee's poor handling of her complaint regarding a pair of obscene e-mails circulating among HCORP residents and a "walk-out" of her graduation-day thesis presentation by her fellow residents. As to the latter event, Dr. Shervin claims that members of the executive committee were aware that a walk-out was planned and did nothing to prevent it.

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There was more. Dr. Shervin complains that, from July

of 2007 to April of 2008, officials of both Harvard and Partners

falsely assured her that her probation would not need to be

reported outside the program (such as to state licensing

authorities or prospective employers). These assurances, she

says, discouraged her from immediately pursuing her grievance

rights within the program. Moreover, the assurances were not true;

her probation resulted in both a delay in the issuance of her

license to practice medicine and the issuance of only a limited

license in her fellowship year.3

According to Dr. Shervin, retaliatory acts continued

even after her residency ended. For one thing, she says that the

formal grievance process that she undertook in 2008 and 2009 (which

resulted in an affirmation of the probation decision) was marred

by bias, falsehoods, and insufficient procedures. For another

thing, she says that the defendants deliberately blocked her from

at least three job opportunities in Massachusetts hospitals during

the 2009-2012 time frame.

3 Although the delay in the issuance of her license to practice medicine resulted in a postponement of the start of her fellowship, she successfully completed the fellowship in 2009.

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With this factual predicate in mind, we turn to the

merits of the district court's summary judgment ruling. We review

that determination de novo. See Noviello, 398 F.3d at 84. To

avoid "the swing of the summary judgment scythe," Mulvihill v.

Top-Flite Golf Co., 335 F.3d 15 , 19 (1st Cir. 2003), the non-

moving party (here, Dr. Shervin) bears the burden of pointing to

admissible evidence showing the existence of a genuine issue of

material fact, see Blackie v. Maine, 75 F.3d 716 , 721 (1st Cir.

1996). The non-movant may not rely on "conclusory allegations,

improbable inferences, and unsupported speculation." Medina-Munoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990).

In this case, the court below considered full briefing

and heard protracted arguments on the motions for summary judgment.

It concluded that all conduct predating June 5, 2008 (or December

30, 2008 for Harvard) was time-barred as a basis for either finding

liability or awarding damages on the discrimination and

retaliation claims. See Shervin, 2 F. Supp. 3d at 72; see also 42

U.S.C. § 2000e-5(e)(1) (setting forth applicable 300-day statute

of limitations); Mass. Gen. Laws ch. 151B, § 5 (similar). The

court then entered partial summary judgment to this effect, leaving

open Dr. Shervin's other claims. The court's ruling allowed Dr.

Shervin to introduce, as context evidence, proof about how she was

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placed on probation and the time-barred acts of alleged

retaliation. See id. at 71 n.10.


Before us, Dr. Shervin argues that the district court

erred in calibrating the statute of limitations for her

discrimination and retaliation claims. As a threshold matter, she

insists that her claims did not accrue until the probation hindered

her ability to obtain a medical license in the summer of 2008. We

do not agree.

Under both federal and state law, a cause of action for

discrimination or retaliation accrues when it has a crystallized

and tangible effect on the employee and the employee has notice of

both the act and its invidious etiology. See Thomas v. Eastman

Kodak Co., 183 F.3d 38 , 50 (1st Cir. 1999); Wheatley v. Am. Tel.

& Tel. Co., 636 N.E.2d 265 , 268 (Mass. 1994); Adamczyk v. Augat,

Inc., 755 N.E.2d 824 , 829 (Mass. App. Ct. 2001). Here, Dr. Shervin

was convinced from the outset that discrimination and retaliation

were at work. Thus, her thesis boils down to a contention that

the probation decision had no tangible, concrete effect either on

her career or her employment as a medical resident until mid-2008.

This contention is untenable. As no less an authority

than the Supreme Court has stated, "[t]he proper focus" for

determining when a cause of action accrues for limitations purposes

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"is upon the time of the discriminatory acts, not upon the time at

which the consequences of the acts became most painful." Del.

State Coll. v. Ricks, 449 U.S. 250 , 258 (1980) (emphasis omitted)

(quoting Abramson v. Univ. of Haw., 594 F.2d 202 , 209 (9th Cir.

1979)); accord Sch. Comm. of Brockton v. MCAD, 666 N.E.2d 468 , 472

n.8 (Mass. 1996).

It is nose-on-the-face plain that Dr. Shervin had notice

almost immediately after being placed on probation that this

disciplinary action was both tangible and concrete: her probation

was unconditional and instantly resulted in the imposition of a

series of burdensome conditions (such as heightened supervision,

more frequent evaluations, and a ban on any outside work).

Moreover, context is always important — and it is significant that

the probation here occurred in the course of a prestigious and

highly competitive academic medicine residency at a world-famous

group of teaching hospitals. In that milieu, probation was not —

as Dr. Shervin would now have us believe — akin to sending a high

school student to after-class detention. Rather, it was an ugly

blot on an otherwise glittering record of accomplishment — and

something to be taken quite seriously.

Indeed, both Dr. Shervin and her mentor, Dr. Burke,

recognized the gravity of the probation placement immediately.

That was why, from the very outset, Dr. Shervin fought so hard to

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reverse or expunge it. Given the record in this case, it strains

credulity to suggest that probation was something to be taken


Dr. Shervin's self-serving averments regarding

assurances about the innocuous long-term effects of her probation

do not alter our conclusion. During the period of roughly 300

days from the time her probation was imposed until November of

2007, virtually all of the information that Dr. Shervin received

about the reporting of probation pointed unerringly in the opposite

direction. For example, Dr. Herndon informed her from the very

beginning (both orally and in writing) that probation could have

a significant negative impact on her licensure, board

certification, and job prospects. So, too, Dr. Burke — as early

4 In support of her argument that she could not have successfully challenged her probation before August of 2008, Dr. Shervin relies heavily on an unpublished district court decision in which the court concluded that probation imposed on a medical resident did not amount to a materially adverse employment action. See Badgaiyan v. Principi, No. 04-12031, 2007 WL 1464604 at *1 (D. Mass. May 21, 2007). The Badgaiyan decision turns on its own facts and idiosyncratic posture. For that reason, it cannot support the weight that Dr. Shervin piles upon it. And in any event, the decision is of questionable validity. After all, this court has held that even a strongly worded warning letter placed in a personnel file, without more, was a sufficiently crystallized form of harm to start the running of the limitations period. See Miller v. N.H. Dep't of Corr., 296 F.3d 18 , 22 (1st Cir. 2002).

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as April of 2007 — expressed his deep concern about the long-term

effects of probation, writing to HCORP's executive committee that

"probation, if allowed to stand, is such a serious disciplinary

action that it will be required to be reported on every job or

fellowship application and on every state licensure renewal." Dr.

Shervin does not deny that she knew about this letter and its

contents. To round out the picture, the Director of the Office of

Women's Careers at MGH warned Dr. Shervin in July of 2007 that

probation "MAY need to be reported" depending on the specific

questions asked on state or hospital licensing forms.

To be sure, in November of 2007, MGH's chief medical

officer (Dr. Britain Nicholson) asked Dr. Burke to advise Dr.

Shervin that she should just "accept the probation" since it was

an internal matter that did not need to be reported externally.

He emphasized that her probation ought not to be the focus of

future references. But that opinion, standing alone, did not erase

the very real effects that probation already had wrought on the

terms and conditions of Dr. Shervin's residency. See, e.g., Miller

v. N.H. Dep't of Corr., 296 F.3d 18 , 22 (1st Cir. 2002). Nor was

there a reasonable basis for believing that persons who might

subsequently be tasked with writing references would see the matter

the same way; there were simply too many contrary indications.

Under these circumstances, the evidence about what was said to Dr.

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Burke in November of 2007 was not significantly probative as to

whether the alleged discrimination was likely to cease and,

therefore, could not defeat summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 , 249 (1986).

The short of it is that Dr. Shervin's knowledge of the

probation and its immediate, tangible effects, together with her

loudly bruited belief that the probation decision was a form of

disparate discipline motivated by gender discrimination, is all

that was needed for her cause of action to accrue and the

limitations clock to begin to tick. See Miller, 296 F.3d at 22;

Wheatley, 636 N.E.2d at 268; Adamczyk, 755 N.E.2d at 829.


Dr. Shervin next contends that the district court should

have applied an exception to the statute of limitations known as

the continuing violation doctrine. See 804 Mass. Code Regs.

1.10(2) (stating that "the 300 day requirement shall not be a bar

to filing in those instances where facts are alleged which indicate

that the unlawful conduct complained of is of a continuing

nature"). Under Massachusetts law, the continuing violation

doctrine serves as an exception to the statute of limitations only

if three prerequisites are satisfied. A plaintiff who seeks to

derive the benefit of the continuing violation doctrine bears the

burden of establishing all three of its elements. See Cuddyer v.

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Stop & Shop Supermkt. Co., 750 N.E.2d 928 , 941-42 (Mass. 2001);

Ocean Spray Crans., Inc. v. MCAD, 808 N.E.2d 257 , 266-67 (Mass.


First, the claim must be one that arises from "a series

of related events that have to be viewed in their totality in order

to assess adequately their discriminatory nature and impact."

Cuddyer, 750 N.E.2d at 936. Second, the claim must be "anchored"

by at least one incident of discrimination or retaliation

transpiring within the limitations period. Noviello, 398 F.3d at

86; see Cuddyer, 750 N.E.2d at 938. This anchoring event must be

"substantially relate[d]" to earlier instances of discrimination

or retaliation and must contribute to the continuation of the

pattern of conduct that forms the basis of the claim. Cuddyer,

750 N.E.2d at 938; see Noviello, 398 F.3d at 86. Third, the

plaintiff must show that a reasonable person in her circumstances

would have refrained from filing a complaint within the limitations

period. See Cuddyer, 750 N.E.2d at 942. On this final element,

the inquiry becomes whether the plaintiff knew or reasonably should

have known within the limitations period both that her work

environment was discriminatory and that the problems she

attributed to that discriminatory environment were unlikely to

cease. See id.; see also Ocean Spray, 808 N.E.2d at 269

(explaining that the limitations period begins when "the employee

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knew or reasonably should have been aware that the employer was

unlikely to afford him a reasonable accommodation"). As to the

likelihood vel non of improvement, the question is whether the

plaintiff's "delay in initiating the lawsuit, considered under an

objective standard, was unreasonable," and summary judgment may be

appropriate on this element "where a pattern of harassment,

considered from the viewpoint of a reasonable person in the

plaintiff's position, is so sufficiently known, pervasive, and

uncorrectable" that it would be unreasonable to delay filing suit.

Cuddyer, 750 N.E.2d at 941-42.

In this instance, we can proceed directly to the third

step of the continuing violation inquiry. Even if the time-barred

acts alleged by Dr. Shervin satisfy the first two elements — a

matter on which we take no view — her claim falters at the third


5 In reaching this conclusion, we need not address Dr. Shervin's remonstrance that the district court misapplied Massachusetts law in concluding that her claim was not of the sort to which the continuing violation doctrine may apply. Our review is de novo, and we may affirm the entry of summary judgment on any basis made manifest by the record. See Gillen v. Fallon Ambul. Serv., Inc., 283 F.3d 11 , 28 (1st Cir. 2002).

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Dr. Shervin does not dispute — nor could she — that she

knew of the alleged incidents of retaliation and discrimination

and regarded them as pervasive. It is undisputed on the summary

judgment record that Dr. Shervin came to believe almost immediately

after the February 2007 meeting that Dr. Herndon had discriminated

against her based on gender and that she was experiencing a

continuing stream of related discriminatory and retaliatory acts.

Her own deposition testimony indicates that she expressed specific

concerns about discrimination to Dr. Rubash as early as March of

2007 and specific concerns about retaliation to the executive

committee the following month.

Of course, under the continuing violation doctrine as

formulated by the Massachusetts courts and the MCAD, a person's

"awareness and duty" to bring suit, Ocean Spray, 808 N.E.2d at

267, arises only when the person has good reason to believe that

her "problems would [not] cease," Cuddyer, 750 N.E.2d at 942.

Here, Dr. Shervin adduced no probative evidence that, during the

300 days following either the February 2007 probation decision or

Dr. Rubash's March 2007 comments, she thought it likely that her

discriminatory treatment would cease. Indeed, Dr. Shervin's

complaint characterized her experience after she challenged the

probation decision as a "witch hunt and a campaign . . . waged

hour to hour, day to day, weeks on end with no resolution in

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sight." She further declared that the "retaliation and

discrimination continued unabated" even after both she and Dr.

Burke reached out to Partners and Harvard for assistance.

These statements make pellucid Dr. Shervin's early

awareness of both her plight and its unrelenting nature. The

record evidence tells the same tale. It convincingly shows, as

early as March of 2007, that Dr. Shervin was keenly aware that

probation entailed immediate negative effects, had potentially

deleterious long-term consequences, and was not likely to be

rescinded. And matters went downhill from there: by June, the

executive committee had ratified the probation decision (using a

process that Dr. Shervin at the time found fundamentally unfair)

and Dr. Herndon — backed by the executive committee — had extended

the probationary period by three months on the basis of complaints

that Dr. Shervin believed were trumped up and inadequately


A reasonable person in Dr. Shervin's shoes, knowing the

immediate downside of probation and its potentially detrimental

effects on her future career, could not plausibly have thought

that her discriminatory treatment was likely to abate. This is

especially true since she professed to believe that the

decisionmakers who had the power to furnish a remedy were taking

biased views of her evaluations, searching for fault, and "building

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a case against [her]." Though some modest ameliorations did occur

(such as in September of 2007 when her probation was finally lifted

and Dr. Herndon was replaced as her residency director), those

ameliorations apparently did nothing to relieve Dr. Shervin's

sense that she was under siege. Contemporaneously, Dr. Shervin

complained to HCORP's administration about e-mails sent to the

resident community from the e-mail accounts of other residents —

e-mails that she perceived to be offensive to women. She had

requested confidentiality for her report and, when another

resident accused Dr. Shervin of being the source of the complaint,

she concluded that a leak had occurred as part of the ongoing

campaign of retaliation. Even when she met with Dr. James Kasser

in September of 2007 and learned that she had been taken off

probation, she told him of her continuing feeling of being

threatened, unsafe, and harassed in the program. Those fears were

exacerbated when, according to Dr. Shervin, Dr. Kasser told her

that the executive committee would "continue to probe at residents

to find any fault with [her]" and expressed concerns about her

professional behavior (which she thought made "no sense" in the

context of her efforts while on probation). In the same time

frame, she also was pointedly informed by one of her supervising

physicians that "people were out to get [her]," so that she ought

to "watch [her] back." In Dr. Shervin's own words, "[t]he

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retaliatory atmosphere continued" even after the lifting of her


An assertion that a situation seemed likely to improve

must be grounded on more than rhetoric. Here, nothing transpired

that would have sufficed to ground an objectively reasonable belief

that what Dr. Shervin regarded as a pattern of discrimination and

retaliation would dissipate.

Nor are the assurances that Dr. Shervin allegedly

received about the long-term effects of her probation adequate to

create a genuine dispute as to the footing for a reasonable belief

that her situation was likely to be "successfully remedied." Id.

at 942. In arguing for a contrary conclusion, Dr. Shervin points

to at least two instances of supposedly equivocal or ultimately

incorrect advice that she received throughout 2007 about the impact

of probation on her medical licensure: the executive committee's

statement in June that many other residents had resolved problems

"without any negative consequences," and assurances from Dr.

Nicholson in the fall that the probation was purely internal and

not reportable to the licensing board.6 These statements, however,

6 What Dr. Shervin suggests are other indications that her probation might be removed from her record occurred in 2008. Consequently, they could not have supported a reasonable belief

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are not probative of whether Dr. Shervin reasonably could have

believed that her work environment would improve. Whether or not

her probation was reportable would not affect the duration or

conduct of the campaign of discrimination and retaliation which

Dr. Shervin believed was afoot from and after the moment she was

placed on probation. And in all events, Dr. Shervin does not claim

that these assurances were products of a discriminatory or

retaliatory animus as opposed to confusion, mistake, or subsequent

changes in the licensing board's regulations.

To sum up, Dr. Shervin knew, from the time her probation

was imposed in February of 2007, that probation had materially

adverse ramifications both for the rest of her residency and (at

least potentially) for her future career. She formed an almost

immediate belief, never diluted, that her probation was sparked by

gender bias; and she likewise came to believe, within a matter of

weeks, that this change in her status was merely the beginning of

a pervasive pattern of discriminatory and retaliatory acts. Nor

had she shown any reasonable basis for hoping that the situation

would improve: the executive committee rebuffed her attempt to

that Dr. Shervin's situation would improve within the 300-day limitations period following the February 2007 probation decision.

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have the probation decision reversed in June of 2007, the term of

her probation was extended shortly thereafter, and acts that she

believed to be discriminatory and retaliatory continued to occur.

The bottom line is that the record, even when taken in

the light most hospitable to Dr. Shervin, does not support a

finding that a reasonable person in Dr. Shervin's circumstances

would have thought her situation apt to improve within the

limitations period. See generally Cuddyer, 750 N.E.2d at 941-42

(setting forth the "guiding principles to be applied by a judge

deciding a motion for summary judgment" with respect to the

continuing violation doctrine). While Dr. Shervin has pointed to

bits and pieces of an extended dialogue that might, if taken in a

vacuum, support her contrary position, we are obliged to view the

summary judgment record as a whole. See, e.g., Mesnick v. Gen.

Elec. Co., 950 F.2d 816 , 827 (1st Cir. 1991). So viewed, there is

no "significantly probative" evidence, Anderson, 477 U.S. at 249-

50, to underpin a finding that Dr. Shervin can satisfy the third

element of the Massachusetts continuing violation framework. It

follows inexorably that the district court did not err in holding

that Dr. Shervin's time-barred discrimination and retaliation

- 25 -  

claims could not be rescued through the continuing violation



In an effort to turn the tide, Dr. Shervin strives to

convince us that there are two other grounds on which a jury might

have found that her discrimination and retaliation claims avoided

the limitations bar. We are not persuaded.

Dr. Shervin begins with a suggestion that the statute of

limitations was tolled by her pursuit, starting in March of 2007,

of an internal grievance under her employment contract. We need

not linger long over this suggestion. Massachusetts recognizes an

exception to the statute of limitations when an aggrieved party

enters into grievance proceedings "pursuant to an employment

7 Although Dr. Shervin's briefing lacks crystalline clarity on this point, she appears to limit her attack on the district court's construction of the continuing violation doctrine to her state-law discrimination and retaliation claims. Even so, we note (for the sake of completeness) that where, as here, a claim involves a pattern of conduct which includes a discrete act that may itself be actionable, the continuing violation doctrine is arguably more accommodating under Massachusetts law than under federal law. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121 , 130, 131 n.8 (1st Cir. 2009) (comparing federal and Massachusetts law with respect to continuing violation doctrine). Accordingly, any challenge to the court's refusal to apply the continuing violation doctrine to Dr. Shervin's federal claims would perforce fail.

- 26 -  

contract" within 300 days from the challenged conduct. 804 Mass.

Code Regs. 1.10(2). The district court ruled that this exception

did not apply because the MCAD has interpreted the regulation as

applying only to those grievance proceedings undertaken pursuant

to collective bargaining agreements. See Shervin, 2 F. Supp. 3d

at 62-64; see also Hall v. FMR Corp., 559 F. Supp. 2d 120 , 125 (D.

Mass. 2008) (discussing underlying MCAD decision in which agency

formally took this position); Cuddyer, 750 N.E.2d at 938 (noting

Massachusetts courts' consistent deference to MCAD decisions and

policies). Dr. Shervin insists that this is an incorrect reading

of Massachusetts law and that she properly invoked her grievance

rights by a letter to the HCORP executive committee dated March

27, 2007.

We need not delve into the district court's rationale

because Dr. Shervin did not invoke the grievance process in March

of 2007. We divide our explanatory comments into two segments,

consistent with the fact that Dr. Shervin's employment contract

incorporated both an adverse action process and a redress of

grievance process.

The adverse action process pertains only to certain

enumerated adverse actions, not including probation, and Dr.

Shervin was told that probation was not considered an adverse

action. Perhaps more importantly, that process sets out procedural

- 27 -  

rules to be followed by the hospital in taking such an action

against a trainee. It does not provide a mechanism through which

a resident or other employee can initiate complaints against her

employer. It is, therefore, impuissant as a means of accessing

the grievance exception.

The redress of grievance process is a different matter.

That process applies to "[g]rievances pertaining to the training

program, faculty, or work environment." Thus, the redress of

grievance process applies on its face to a person in Dr. Shervin's


But there is a rub: under the redress of grievance

process, grievances must "first be directed to the training program

director in writing, and copied to the Service Chief and the

Director of Graduate Medical Education." The program director

then has two weeks to respond. If a response is not forthcoming

or is unsatisfactory, the trainee may then request a hearing.

Dr. Shervin's letter simply did not invoke this process

— and it was never construed as invoking it. The letter, which

was addressed to the chair of HCORP's executive committee, was

copied only to other committee members. The redress of grievance

process was not mentioned. The ad hoc nature of Dr. Shervin's

letter and her failure to initiate the redress of grievance process

- 28 -  

were confirmed by her subsequent interactions with Partners' staff

and HCORP.

When Dr. Shervin's letter was received, HCORP undertook

what it described as "an informal[] review." In late April,

Partners' vice president for graduate medical education, Dr. Debra

Weinstein, reminded Dr. Shervin that she could "utilize the

Partners resident grievance process at any time." Dr. Shervin

took no action in response to this reminder; for aught that

appears, she neither sought to avail herself of the grievance

process nor sought to go beyond the informal review that had been


The executive committee informed Dr. Shervin on June 6

that it had completed its informal review. Thereafter, Dr. Shervin

took no action anent grievance proceedings until the spring of

2008, when she brought concerns about her medical licensure to

officials at Partners. Even at that stage, the record makes

manifest that both she and Partners believed that she had not

activated the redress of grievance process. It was not until late

March of 2008 that Dr. Shervin asked to meet with Partners'

officials to learn about "options . . . for addressing grievances."

She received a reply less than a week later, reminding her of the

redress of grievance process. In May of that year, Dr. Shervin

- 29 -  

noted in an e-mail that she had not yet "initiate[d] a formal

grievance process."

In light of the consistent interpretation placed by both

Partners and Dr. Shervin on her March 27 letter and the actions

that ensued, we think it crystal clear that Dr. Shervin did not

invoke the redress of grievance process by means of that letter.

That is game, set, and match. Even if we assume that

the redress of grievance process, if properly invoked, would engage

the gears of the grievance exception, Dr. Shervin cannot benefit

from that exception.8

Finally, we agree with the district court that there is

no cognizable basis for equitable tolling here. In Massachusetts,

such an extraordinary remedy is applied "sparingly in employment

discrimination cases." Adamczyk, 755 N.E.2d at 830. Invoking

such a palliative is permitted when, say, "the plaintiff is

excusably ignorant about the . . . statutory filing period, or

where the defendant or the MCAD has affirmatively misled the

plaintiff." Andrews v. Arkwright Mut. Ins. Co., 673 N.E.2d 40 , 41

8 To be sure, Dr. Shervin did trigger the redress of grievance process by letter dated August 7, 2008. She has not relied on that letter; and in all events, any tolling effect attributable to that letter would come too late to sweep in Dr. Shervin's time- barred allegations.

- 30 -  

(Mass. 1996) (citation omitted). So, too, the doctrine can be

employed where "the potential defendant encourages or cajoles the

potential plaintiff into inaction." Cherella v. Phoenix Techs.

Ltd., 586 N.E.2d 29 , 31 (Mass. App. Ct. 1992). None of these

scenarios is present in this case — and as we explain below,

nothing of comparable magnitude transpired here.

To begin, Dr. Shervin does not plead ignorance about the

filing period. Second, though Dr. Shervin maintains that she was

misled about the impact of her probation on her future licensure,

she does not suggest that she relied on any such misrepresentations

in considering whether or when to file her complaint. The mere

fact that Dr. Shervin may have relied on some misrepresentations

by the defendants for other purposes does not establish the

necessary linkage between those misrepresentations and her delay

in bringing her complaint. See English v. Pabst Brewing Co., 828

F.2d 1047 , 1049 (4th Cir. 1987) ("To invoke equitable tolling, the

plaintiff must therefore show that the defendant attempted to

mislead him and that the plaintiff reasonably relied on the

misrepresentation by neglecting to file a timely charge."). Given

this record, we discern no plausible basis for a claim of equitable

tolling. See, e.g., Rivera-Díaz v. Humana Ins. of P.R., Inc., 748

F.3d 387 , 390 (1st Cir. 2014).

- 31 -  


That ends this aspect of the matter. Because all the

broadsides that Dr. Shervin aims at the district court's entry of

partial summary judgment miss the mark, we uphold the district

court's calibration of the limitations period and, thus, its

summary judgment ruling.


Dr. Shervin argues that a new trial is necessary because

the district judge failed to recuse herself when an appearance of

partiality arose. See 28 U.S.C. § 455(a). This argument is doubly



We set the stage. Dr. George Dyer was a resident in

orthopedics at MGH during Dr. Shervin's residency (one year ahead

of her) and, in early 2007, reported to Dr. Herndon concerns about

Dr. Shervin's performance. In ruling on a motion to quash

discovery subpoenas, the district judge noticed that documents

relating to Dr. Dyer were included among the requests. The

district judge promptly disclosed that Dr. Dyer is her first

cousin. She added that she did not consider this relationship to

be a basis for recusal, but she nonetheless invited the parties to

register any concerns that they might have with the court. Dr.

Shervin did not voice any objections, nor did she urge the judge's

- 32 -  

recusal at any point. She likewise remained silent when Dr. Dyer

was identified to the jury as a fact witness in the opening

statements of two of the defendants (Partners and Dr. Herndon),

which were delivered before the first witness was sworn.

Near the end of her case in chief, Dr. Shervin called

Dr. Dyer as a hostile witness. During direct examination, the

district judge sustained defense objections to several questions

aimed at developing an ostensible inconsistency in Dr. Herndon's

testimony — an inconsistency that purportedly arose because Dr.

Herndon testified that Dr. Dyer reported his concerns in a meeting

where another resident was present, while Dr. Dyer said in his

deposition that he and Dr. Herndon had met alone.

After declining to undertake redirect examination and

releasing the witness, Dr. Shervin's counsel requested a sidebar

conference. At sidebar, she stated that she was "concerned about

the way in which this witness was handled by the court" and asked

the judge to inform the jury of her relationship with the witness

and/or to read Dr. Dyer's deposition testimony into the record.

She did not, however, ask the judge to recuse herself.

When defense counsel pointed out that the judge had

previously disclosed her relationship to Dr. Dyer and no objection

had been forthcoming, Dr. Shervin's counsel responded: "I withdraw

my request," presumably referring to both of her curative requests.

- 33 -  

To dispel any further doubt on this issue, the district judge

formally denied the remedies sought by Dr. Shervin's counsel,

noting for the record the "nature of the examination" of Dr. Dyer

and her "prior disclosure on the record" of her relationship to

Dr. Dyer. The judge added that she had sustained the defendants'

objections because the questions were improper in form, and the

statements sought to be introduced as prior inconsistent

statements did not appear to be inconsistent with Dr. Dyer's

deposition testimony.


Against this backdrop, Dr. Shervin argues that the

judge's obligation to recuse herself blossomed when counsel

pointed out that the judge, knowing that Dr. Dyer's deposition

testimony was inconsistent with his testimony on the stand,

foreclosed "efforts to impeach Dyer with his prior deposition

testimony and did not permit explanation of counsel's concerns

until the witness was excused." This argument stumbles at the

starting gate.

In this case, the judge forthrightly disclosed her

relationship to the witness prior to trial and provided ample

opportunity for the parties to move for recusal. Dr. Shervin did

not seek the judge's disqualification but, rather, by her silence

acquiesced in the judge's continued participation. That was a

- 34 -  

waiver, pure and simple. See, e.g., In re Cargill, Inc., 66 F.3d

1256 , 1261 (1st Cir. 1995) ("[W]aivers based on silence are

standard fare."). Where, as here, the putative ground for recusal

involves only an asserted appearance of partiality and thus rests

solely on 28 U.S.C. § 455(a), a judge is permitted to accept a

party's waiver as long as that waiver is preceded by a full

disclosure of the alleged basis for disqualification. See 28

U.S.C. § 455(e); see also Cargill, 66 F.3d at 1261; El Fenix de

P.R. v. M/Y JOHANNY, 36 F.3d 136 , 141 (1st Cir. 1994). It follows

that Dr. Shervin cannot now be heard to complain that the judge

should have recused herself despite the parties' informed

willingness to have her preside.

Nor did subsequent developments in the trial mandate the

judge's recusal. To begin, Dr. Shervin's counsel never asked the

judge to step down, even when she expressed her concerns about the

judge's handling of Dr. Dyer. And with respect to the relief that

she did request, there was a second waiver. At the sidebar

conference following Dr. Dyer's direct examination — which

occurred near the end of trial — Dr. Shervin's counsel was reminded

of her earlier acquiescence, and she then withdrew her request for

any curative action. That, too, was a waiver — an intentional

relinquishment of a known right. See, e.g., United States v.

Rodriguez, 311 F.3d 435 , 437 (1st Cir. 2002) (explaining that "[a]

- 35 -  

party who identifies an issue, and then explicitly withdraws it,

has waived the issue").

We need not tarry. The district judge performed

admirably in managing a highly contentious trial. There is no

claim of any actual bias on her part — and the record reveals no

footing for any such claim. As a general rule, a party is not

entitled to relief on appeal that she did not seek below. See,

e.g., Cahoon v. Shelton, 647 F.3d 18 , 29 (1st Cir. 2011); Beaulieu

v. IRS, 865 F.2d 1351 , 1352 (1st Cir. 1989). This case falls

comfortably within this general rule, not within the long-odds

exception to it. We find, without serious question, that the

district judge did not err by failing to recuse herself sua sponte

despite the parties' tacit agreement that she continue to preside.


Dr. Shervin takes issue with a host of evidentiary

rulings that she says deprived her of the ability to present

critical evidence of discrimination and retaliation. We review

rulings admitting or excluding evidence for abuse of discretion.

See Torres-Arroyo v. Rullán, 436 F.3d 1 , 7 (1st Cir. 2006); Gomez

v. Rivera Rodríguez, 344 F.3d 103 , 114 (1st Cir. 2003). Here, we

have examined all of Dr. Shervin's claims with care. Many relate

to rulings limiting evidence of the experiences of other

individuals who had allegedly faced gender-based discrimination or

- 36 -  

retaliation at the hands of one or more of the defendants. Others

relate to the exclusion of evidence that Dr. Shervin hoped would

show differential treatment in disciplinary or hiring contexts or,

alternatively, would provide additional background information on

the culture at MGH and its department of orthopedics.

It would serve no useful purpose to plow through all of

these claimed bevues one by one. Here, it suffices for the most

part to say that after perscrutation of the record and the parties'

arguments, we are satisfied that the district court did not abuse

its discretion in excluding this evidence, particularly since much

of it was either cumulative, attenuated from the issues underlying

the litigated claims, peripheral, overly conducive to creating

juror confusion, or unfairly prejudicial to one or more of the


This omnibus ruling reflects our awareness that trial

courts enjoy a superior "coign of vantage" in undertaking the

"delicate balancing" required to make these kinds of evidentiary

determinations. Fitzgerald v. Expressway Sewerage Constr., Inc.,

177 F.3d 71 , 75 (1st Cir. 1999). Given the district court's

evident solicitude for policing the bounds of relevancy and keeping

the jury focused on the issues in the case, we are unwilling to

disturb the district court's first-hand assessment of much of the

proffered evidence.

- 37 -  

There are, however, three evidentiary rulings that —

though supportable — deserve more exegetic treatment. Each of

these three rulings excluded an out-of-court statement offered by

Dr. Shervin as evidence of retaliatory animus. She asserts that

these statements qualify as non-hearsay under various exceptions

to the hearsay rule, and that the court's exclusionary rulings

were so uniquely important and so egregiously wrong that they

eroded the foundation of her case.

Before turning to these three challenges, we summarize

a few first principles. Out-of-court statements, not made under

oath, are generally regarded as hearsay evidence and, thus, are

presumptively inadmissible to prove the truth of the matter

asserted. See Fed. R. Evid. 801(c), 802. There are several

circumstances, however, in which such statements can shed their

hearsay character and become eligible for admission into evidence

to prove the truth of the matter asserted. See id. 801(d). Yet

even then, out-of-court statements — like other pieces of evidence

— must pass through further screens: they may be excluded on, say,

relevancy grounds, see id. 401, or on grounds of undue prejudice,

waste of time, potential for jury confusion, and the like, see id.

403. It is against this backdrop that we approach the task at


- 38 -  


Dr. Shervin sought to elicit through the testimony of

Partners' former board chair that MGH's CEO, Dr. Peter Slavin, had

once told him that "there's not a court in the land that could

force me to hire Dr. Shervin back." Dr. Shervin sought to admit

this hearsay statement to show bias against her in the upper

echelons of MGH and to explain Partners' interference with a

potential job at Cooley Dickinson Hospital (Cooley).

The relevant facts are as follows. Cooley — a hospital

not then affiliated with Partners — offered Dr. Shervin a position

in the spring of 2012. The offer was withdrawn, however, before

she could accept it. In the same time frame, Cooley was in merger

talks with MGH. Building on this foundation, Dr. Shervin contends

that Dr. Slavin's comment could have supported an inference that

he (or others following his orders) used the relationship with

Cooley officials to stifle her job offer. This led to Dr.

Shervin's attempt to introduce evidence of Dr. Slavin's hearsay

statement, but when defense counsel objected to the questioning of

the board chair about this statement, the district court sustained

the objection.

Although the challenged statement, if viewed in

isolation, may seem to boost Dr. Shervin's theory of the case, the

evidence as it unfolded at trial tells a more nuanced tale. Dr.

- 39 -  

Shervin did not establish through either evidence or proffer when

the statement was alleged to have been made by Dr. Slavin, nor did

she connect this statement in any way to Cooley's withdrawal of

the job offer. What is more, Dr. Shervin did not adduce a shred

of evidence showing that Dr. Slavin was himself a decisionmaker

with regard to the Cooley job offer or that he in any way influenced

or attempted to influence Cooley's decision not to hire Dr.

Shervin. Indeed, there is no evidence that Dr. Slavin ever spoke

to or otherwise communicated with anyone at Cooley.

In excluding the challenged statement, the district

court relied on Federal Rule of Evidence 403. That rule requires

a court to balance the probative value of particular evidence

against the unfairly prejudicial effect of that evidence. See

United States v. Mehanna, 735 F.3d 32 , 59 (1st Cir. 2013), cert.

denied, 135 S. Ct. 49 (2014). Without more meat on the bones, this

lone remark was hardly probative of any actual influence by the

defendants on the withdrawal of the job offer from Cooley. See,

e.g., Lewis v. City of Chi. Police Dep't, 590 F.3d 427 , 441-43

(7th Cir. 2009) (noting, in employment discrimination case, that

comments of non-decisionmakers had little probative value as to

the intent or mindset of the decisionmakers).

To be sure, we explained in Travers v. Flight Services

& Systems, Inc., 737 F.3d 144 (1st Cir. 2013), that even without

- 40 -  

direct evidence of causation a jury may reasonably infer that the

wishes of a "king" often will be carried out by his "courtiers"

when other evidence shows that retaliatory animus resides at the

"apex of the organizational hierarchy." Id. at 147. But Travers

is distinguishable in many respects. First, the excluded statement

here was much more like the (nonprobative) "stray," "stale," or

"ambiguous" comments contrasted by the Travers court with the

(probative) "strongly held," "repeatedly voiced," and precise

directives of the CEO. Id. It is only the latter that Travers

said may permit an inference that animus was communicated

throughout the organization. Second, Dr. Slavin's comment was not

made to an underling who might have been inclined to curry favor

by carrying out his directives. See id. Last — but far from least

— Dr. Slavin did not occupy the apex of Cooley's organizational

hierarchy (indeed, he was not part of that hierarchy). And

although one can speculate that the pendency of merger negotiations

may have accorded Dr. Slavin's views some weight if made known to

the prospective merger partner, there is nothing in the record

that suggests he ever communicated those views to Cooley's

decisionmakers (or, for that matter, to anyone associated with


When, as in this instance, highly charged evidence is of

doubtful probative value, it may be excluded. See, e.g., Williams

- 41 -  

v. Drake, 146 F.3d 44 , 48-49 (1st Cir. 1998). The case for

exclusion is stronger, of course, "where, as here, the evidence

has a high potential for unfair prejudice." Downey v. Bob's Disc.

Furniture Holdings, Inc., 633 F.3d 1 , 9 (1st Cir. 2011). These

tenets are controlling. Given that the challenged statement was

both incendiary in nature and offered without any supporting

evidence that would have tethered it to the situation that played

out at Cooley, we cannot say that the court below abused its

discretion in striking the Rule 403 balance in favor of exclusion.

After all, "[o]nly rarely — and in extraordinarily compelling

circumstances — will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." Freeman

v. Package Mach. Co., 865 F.2d 1331 , 1340 (1st Cir. 1988).


Dr. Shervin attempted to introduce evidence, through the

testimony of the former CEO of Milton Hospital (Milton), that Dr.

Gebhardt, the chief of the orthopedics department at BIDMC, blocked

Dr. Shervin's hiring at Milton (a BIDMC affiliate) in the summer

of 2012. This evidence comprised out-of-court statements that Dr.

Gebhardt would "find it difficult" to work with "a person who was

suing him" and that if Dr. Shervin was permitted to work at the

new orthopedics center at Milton, he would withdraw BIDMC's

- 42 -  

involvement there. Dr. Shervin sought to admit Dr. Gebhardt's

statements in support of her retaliation claims against Harvard

and Partners, insisting that the statements were non-hearsay under

Federal Rule of Evidence 801(d)(2)(D), which covers admissions of

a party-opponent.

Prior to trial, Partners and other defendants (but not

Harvard) moved in limine to exclude Dr. Gebhardt's statements,

arguing that they were made while Dr. Gebhardt was acting under

the authority of a non-party, namely, Harvard Medical Faculty

Physicians, a non-profit corporation consisting of physicians

employed at BIDMC. Dr. Shervin opposed this motion, postulating

that Dr. Gebhardt's statements were made in his capacity as a

member of HCORP's executive committee and that Partners was

ultimately responsible for HCORP. The district court granted the

motion in limine, concluding that the challenged statements

concerned an "independent decision" by Dr. Gebhardt, which broke

the causal chain needed to establish a connection to Partners.

See Mole v. Univ. of Mass., 814 N.E.2d 329 , 343 (Mass. 2004). Dr.

Shervin provides no justification for second-guessing this


During the trial, the district court carefully sifted

through evidence involving statements of Dr. Gebhardt that Dr.

Shervin was attempting to attribute to Partners. The court

- 43 -  

admitted some statements that were made within the scope of Dr.

Gebhardt's executive committee position (such as his statement to

Dr. Burke that Dr. Shervin needed to get her head "screwed on"

because she was "a woman in a man's specialty"). However, the

court excluded other statements. We discern no abuse of

discretion: given the evidence that Dr. Gebhardt's statements

regarding Dr. Shervin's potential employment at Milton were not

within the scope of his role on HCORP's executive committee, the

court had sufficient reason to exclude those statements.

Alternatively, Dr. Shervin theorizes that the excluded

statements were imputable to Harvard by virtue of Dr. Gebhardt's

faculty appointment and his seat on HCORP's executive committee.

The district court rejected this proffer, concluding that these

hearsay statements were not admissible against Harvard and that

any probative value was substantially outweighed by the risk of

unfair prejudice.

Once again, we find no abuse of discretion. Rule

801(d)(2)(D) exempts from the definition of hearsay statements

"offered against an opposing party and . . . made by the party's

agent or employee on a matter within the scope of that relationship

and while it existed." Here, though, Dr. Shervin utterly failed

to lay a foundation for showing that the challenged statements,

any of the staffing decisions at Milton, or any purported threat

- 44 -  

to withdraw BIDMC's medical faculty support fell within the scope

of Dr. Gebhardt's Harvard faculty appointment. Thus, the excluded

statements did not qualify as a party opponent's statements within

the purview of Rule 801(d)(2)(D). See, e.g., Vazquez v. Lopez-

Rosario, 134 F.3d 28 , 34-35 (1st Cir. 1998).

Dr. Shervin has a fallback position with respect to the

admissibility of these statements. She suggests that the

statements should have been admitted as to Harvard for the limited

purpose of impeaching Dr. Gebhardt's denial that he ever said he

would not support the new center if Dr. Shervin were brought on

board. See Fed. R. Evid. 613(b). But as the district court noted,

the probative value of this impeachment evidence was greatly

overshadowed by the fact that Dr. Shervin failed to introduce any

competent evidence to prove retaliation by Harvard with respect to

the position at Milton. Indeed, Dr. Shervin failed to dredge up

even a scintilla of evidence showing Harvard's involvement in the

selection process for this position.9 Because there was too great

9 The strongest evidence that Dr. Shervin has on this point is a posting for the position that recites that the successful applicant will receive a clinical appointment to the Harvard medical faculty and notes that Harvard is an equal opportunity employer. This evidence standing alone does not take Dr. Shervin very far.

- 45 -  

a risk under the circumstances that the jury would consider the

challenged evidence as substantive evidence against Harvard, the

district court acted well within the encincture of its discretion

in sustaining Harvard's objection to this evidence. See United

States v. Hudson, 970 F.2d 948 , 956 n.2 (1st Cir. 1992) (upholding

exclusion of evidence under Rule 403 even though evidence

admissible under Rule 613(b)); see also Faigin v. Kelly, 184 F.3d

67 , 80 (1st Cir. 1999) ("We are extremely reluctant to second-

guess the district court's battlefield determination that the

scenario at hand presented a worrisome potential for [unfair



The next bone of contention involves an out-of-court

statement made to Dr. Burke by Dr. Joseph McCarthy, a vice-chair

in the MGH orthopedics department and the director of the center

for joint reconstruction at Newton-Wellesley Hospital (NWH), a

Partners affiliate. This statement was contained in an April 2009

e-mail exchange between the two doctors about the possibility of

finding Dr. Shervin a position at NWH upon the completion of her

fellowship. In relevant part, Dr. Burke wrote "I am glad that you

are on board with [Dr. Shervin's] NWH/MGH staff position," and Dr.

McCarthy responded, "I'm glad we're on the same page with this.

I'll do my part out here." Dr. Shervin proffered this evidence,

- 46 -  

too, as non-hearsay under Rule 801(d)(2)(D). Its purpose, she

asserts, was to refute claims that she had not been hired at NWH

either because she had not formally applied for such a position or

because no positions were available.

The district court excluded the statement, and Dr.

Shervin assails the court's exclusionary ruling. Some further

facts are needed to put her assignment of error in perspective.

Prior to trial, Harvard moved in limine to bar the

introduction of this evidence, arguing that Dr. McCarthy's

statement was hearsay and that it was not admissible as a vicarious

admission since Dr. McCarthy held only a clinical associate

position at Harvard and, thus, Dr. Shervin could not show that any

statements Dr. McCarthy made regarding hiring at MGH or NWH were

within the scope of his Harvard faculty appointment. The district

court granted Harvard's motion. When Dr. Shervin brought the issue

up again at trial, the district court sustained the defendants'


With respect to Harvard, there was no hint of abuse of

discretion in excluding Dr. McCarthy's statement as inadmissible

hearsay. The record is bereft of any evidence that the statements

fell within the scope of Dr. McCarthy's Harvard faculty

appointment. See, e.g., Lopez-Rosario, 134 F.3d at 34-35.

- 47 -  

Switching gears, Dr. Shervin suggests that Dr.

McCarthy's statement was admissible against Partners. But even if

this were so — a matter on which we take no view — the statement

demonstrated at most that an individual in a leadership role in

orthopedics at MGH and NWH was "on the same page" as Dr. Burke

about a "staff position" for Dr. Shervin.10 What that means is

amorphous. What is clear, however, is that the statement does not

show that Dr. Shervin had a firm offer at NWH. Nor does it directly

contradict Dr. Rubash's testimony that there were no open positions

at NWH at that time.

Seen in this light, the exclusion of Dr. McCarthy's

statement plainly did not have "a substantial or injurious effect

on the jury's verdict." Gomez, 344 F.3d at 118. Any error in

this regard was, therefore, harmless.

At the expense of carting coal to Newcastle, we add that

the harmlessness of any error was ensured by the district court's

10While this evidence also may have tended to bolster Dr. Shervin's contention that informal applications were routinely accepted at MGH even when no positions were posted, that point was made by other evidence introduced by Dr. Shervin. The exclusion of cumulative evidence is ordinarily harmless. See U.S. ex rel. Ondis v. City of Woonsocket, 587 F.3d 49 , 60 (1st Cir. 2009). So it is here.

- 48 -  

prophylactic actions. When the court refused to allow Dr. Burke

to testify about Dr. McCarthy's statement on the twentieth day of

trial, it gave Dr. Shervin explicit permission to call Dr. McCarthy

as a witness even though final witness lists (which did not name

Dr. McCarthy) had long since been submitted. Yet Dr. Shervin

elected not to call Dr. McCarthy before she rested on the twenty-

third trial day. This was a strategic litigation choice — and a

party normally is bound by such choices. Cf. Paul Revere Var.

Annuity Ins. Co. v. Zang, 248 F.3d 1 , 6 (1st Cir. 2001) (stating,

in different context, that "[w]here a party makes a considered

choice, though it may involve some calculated risk, he 'cannot be

relieved of such a choice'" even if in hindsight the decision might

have been improvident (quoting Ackermann v. United States, 340

U.S. 193 , 198 (1950))).


The short of it is that the challenged evidentiary

rulings, whether taken singly or in the aggregate, furnish no

founded basis for setting aside the jury verdict.


Dr. Shervin serves up a smorgasbord of claimed

instructional errors — five related to instructions actually given

and one related to a forgone instruction. All six of these claims

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are adequately preserved. We preface our discussion of them with

a précis of the applicable standards of review.


The standard governing an appellate court's review of a

preserved claim of instructional error varies depending on the

nature of the asserted error. We review de novo questions about

whether a given instruction is, in substance, legally correct.

See DeCaro v. Hasbro, Inc., 580 F.3d 55 , 61 (1st Cir. 2009). We

review for abuse of discretion the particular wording chosen to

convey a concept to the jury. See Testa v. Wal-Mart Stores, Inc.,

144 F.3d 173 , 175 (1st Cir. 1998). That inquiry focuses on whether

the instruction "adequately illuminate[d] the law applicable to

the controverted issues in the case without unduly complicating

matters or misleading the jury." Id.; see Davis v. Rennie, 264

F.3d 86 , 108 (1st Cir. 2001).

When a party assigns error not to the substance of a

jury instruction but to the court's decision to give a requested

instruction at all, our review is de novo. See Butynski v.

Springfield Term. Ry. Co., 592 F.3d 272 , 276 (1st Cir. 2010). The

ultimate inquiry is "whether the evidence, viewed in the light

most favorable to the proponent of the instruction, justifies jury

consideration of the underlying issue." Id. When, however, a

party assigns error to the failure to give a requested instruction,

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the threshold inquiry is whether the requested instruction was

correct as a matter of law. See Elliott v. S.D. Warren Co., 134

F.3d 1 , 6 (1st Cir. 1998). If the answer to that threshold inquiry

is in the negative, appellate review is at an end. See United

States v. DeStefano, 59 F.3d 1 , 2 (1st Cir. 1995). But if the

answer is in the affirmative, we will normally find reversible

error if the omitted instruction is integral to an important part

of the case and its content is not otherwise substantially covered

by the instructions as given. See Elliott, 134 F.3d at 6;

DeStefano, 59 F.3d at 2.

In mounting all of these inquiries, we examine the

court's instructions as a whole, rather than reviewing fragments

in isolation. See Testa, 144 F.3d at 175.


Dr. Shervin complains bitterly that the district court's

statute of limitations instruction confused and misled the jury by

overstating the effect of the limitations bar on her timely claims.

This plaint is easily dispatched.

Mid-trial jury instructions can be a useful tool in a

trial court's effort to acquaint the jury with the governing law.

See, e.g., United States v. Mare, 668 F.3d 35 , 40 (1st Cir. 2012).

Of particular pertinence here, the district court instructed the

jury on the third day of trial that:

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In this case, certain conduct is time barred as a matter of law from being the basis of any liability . . . . the plaintiff, Dr. Shervin, is still allowed to introduce evidence of certain conduct that occurred prior to those dates. She may do so as background evidence to support her timely discrimination and retaliation claims.

In its end-of-case charge, the court reiterated this

instruction and expanded on it, stating:

While the [d]efendants cannot be liable to Dr. Shervin for any such alleged conduct before the respective dates I have just mentioned as to the discrimination and retaliation claims, you may, if you choose, consider such alleged conduct for the limited purpose of background evidence (i.e. as it may, for example, bear upon motive, intent or context) as to her timely discrimination and retaliation claims . . . .

These instructions were free from error. In light of

the district court's accurate calibration of the statute of

limitations at summary judgment, see supra Part II, these

instructions were proper as a matter of both federal and state

law. See Nat'l R.R. Pass. Corp. v. Morgan, 536 U.S. 101 , 113

(2002); Cuddyer, 750 N.E.2d at 935 n.10, 943. Moreover, there was

no abuse of discretion in the district court's word choices: trial

courts must be accorded substantial latitude about how to distill

complicated legal concepts into language that jurors will


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Contrary to Dr. Shervin's importunings, the court's

instructions made it sufficiently clear that the jury could take

the time-barred evidence into account for such purposes as

evaluating motive, intent, or context.

The instructions also precluded the jury from taking

that evidence into account for the improper purpose of assessing

liability or damages. That was an accurate reflection of the law.

See, e.g., Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121 , 142 (1st

Cir. 2009); Cuddyer, 750 N.E.2d at 943. The fact that the

limitations instructions did not go as far as Dr. Shervin would

have liked is of no consequence: a district court is not obliged

to parrot the precise turn of phrase requested by a litigant. See,

e.g., Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70 , 79 (1st

Cir. 2001). The court here adroitly threaded the needle, selecting

language that did not run the risk of misleading the jury into

overlooking the limitations period while still leaving open the

consideration of time-barred evidence as context for Dr. Shervin's

timely claims. No more was exigible.11 See Morgan, 536 U.S. at

11 Relatedly, Dr. Shervin suggests that the court's instructions on the statute of limitations and the aiding and abetting and interference theories of liability under Massachusetts law, together with the verdict form, somehow removed from the jury's consideration the 2009 grievance process as a

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113; Cuddyer, 750 N.E.2d at 935 n.10, 943; see also Elliott, 134

F.3d at 7.


Dr. Shervin calumnizes the district court's instruction

on "material adverse action" in the discrimination context. She

maintains that this instruction was both incorrect and apt to

mislead the jury into disregarding the time-barred background

evidence entirely. She specifically targets the portion of the

instruction stating that "an 'adverse employment action' is one

that, standing alone, actually causes damage, tangible or

intangible, to an employee," positing that the phrase "standing

alone" foreclosed the jury from considering the totality of the

circumstances (including time-barred evidence) in evaluating

whether an adverse action took place.

After careful scrutiny of the challenged instruction and

the charge as a whole, we decline Dr. Shervin's invitation to hold

potential basis for liability. We see no basis in the record for this suggestion. The district court properly instructed the jury on both aiding and abetting and interference under Massachusetts law. See Mass. Gen. Laws ch. 151B, § 4(4A), (5); Lopez v. Commonwealth, 978 N.E.2d 67 , 78-79, 82 (Mass. 2012); Melnychenko v. 84 Lumber Co., 676 N.E.2d 45 , 51 & n.8 (Mass. 1997). These instructions in no way conflicted with the limitations instructions.

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that the instruction was incorrect as a matter of law. The

district court did not use the phrase "standing alone" in

connection with the limitations instruction but, rather, in

explaining what may or may not amount to an adverse employment

action. After explaining that an adverse action is one that

"standing alone, actually causes damage," the court went on to

distinguish between acts that might rise to the level of an adverse

action (such as a decision to discharge or materially disadvantage

an employee) and those acts that merely cause "subjective feelings

of disappointment or disillusionment." This is a correct statement

of the applicable law. See, e.g., Blackie, 75 F.3d at 725 ("Work

places are rarely idyllic retreats, and the mere fact that an

employee is displeased by an employer's act or omission does not

elevate that act or omission to the level of a materially adverse

employment action."). And since Dr. Shervin's discrimination

claims were not tried on a hostile work environment theory, there

was no error in instructing the jury that an adverse action is one

that "standing alone" causes harm. See, e.g., Johnson v. Univ. of

P.R., 714 F.3d 48 , 53 (1st Cir. 2013) (discussing distinction

between hostile work environment and discrete act claims).

We add that this instruction in no way diluted the force

of the statute of limitations instruction. The discrimination

instruction followed the court's limitations instruction, which

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had informed the jury that it was allowed to consider time-barred

evidence for such purposes as motive, intent, and context. In

later describing the prima facie elements of a discrimination claim

and what constitutes proof of pretext, the court placed no temporal

restrictions on the evidence that could or could not inform this

evaluation. In sum, the discrimination instruction was legally

correct, and the court's use of the phrase "standing alone" in

defining a materially adverse employment action was not an abuse

of discretion.


Dr. Shervin asserts that the district court's definition

of "adverse action" in its instruction on retaliation was

misleading because it failed to convey to the jury that the

standard for adverse action in the retaliation context is broader

than in the discrimination context. But that assertion is belied

by the text of the district court's instructions. The court

defined "adverse action" more broadly in the retaliation

instruction than in the discrimination instruction.

The discrimination instruction stated, inter alia, "[a]n

employer takes an adverse action against an employee if it takes

something of consequence away from the employee or fails to give

the employee something that is a customary benefit of the

employment relationship." The court went on to explain that "[a]n

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adverse action may include a decision to terminate or discharge an

employee or materially disadvantage her in respect to her salary,

grade or other terms, conditions or privileges of employment." By

contrast, the retaliation instruction explained that an adverse

action in the retaliation context must be "materially adverse such

that it could deter a reasonable person from complaining about

discrimination." The court then stated, "[i]n the context of a

retaliation claim, the [p]laintiff must show that she was subject

to an employment action that materially disadvantaged her" and

added that "an employer can retaliate against an employee by taking

actions not directly related to her employment or by causing her

harm outside the workplace."

These contrasting instructions were not only legally

sound but also adequately articulated. See, e.g., Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53 , 64 (2006) (holding under

Title VII that "the antiretaliation provision, unlike the

substantive provision, is not limited to discriminatory actions

that affect the terms and conditions of employment"); Psy-Ed Corp.

v. Klein, 947 N.E.2d 520 , 530 n.25 (Mass. 2011) (similar, under

Massachusetts law). The court made pellucid that "adverse action"

in the retaliation context is more expansive than in the

discrimination context, stating that a retaliatory adverse action

includes conduct that "could deter a reasonable person from

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complaining about discrimination" and could encompass conduct

entirely unrelated to the workplace. While the court elected not

to provide certain specific examples of retaliation that Dr.

Shervin had requested, this refusal was well within the ambit of

its discretion. See, e.g., DeCaro, 580 F.3d at 62 ("[A] trial

court is not obliged either to embellish legally correct statements

or to cover every factual permutation."); see also Elliott, 134

F.3d at 6; DeStefano, 59 F.3d at 2. What counts is that the court

crafted instructions that adequately conveyed these distinct

concepts to the jury.


Dr. Shervin reproves the district court's "vacant

position" instruction, which stated: "[t]o establish a failure to

hire as an 'adverse employment action' for the purposes of a

retaliation claim, [Dr. Shervin] must show by a preponderance of

the evidence that: 1) she applied for a discrete, identifiable

position; 2) the position was vacant; and 3) she was qualified for

the position." She submits that this instruction was both

incorrect as a matter of law and unwarranted on the facts. In

support, she cites our decision in Velez v. Janssen Ortho, LLC,

467 F.3d 802 (1st Cir. 2006), in which we mapped out a three-part

showing for claims of retaliatory failure to hire. See id. at

807; see also Pina v. Children's Place, 740 F.3d 785 , 800-01 (1st

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Cir. 2014) (applying same standard to ch. 151B retaliation claim).

Dr. Shervin's point is that, in her view, her case is more akin to

the exception to this standard that Velez acknowledged in dictum.

See Velez, 467 F.3d at 808 n.6 (suggesting that "if, as a matter

of standard procedure, a company never advertises specific

[vacant] positions" it may be inappropriate to require plaintiff

to show that she applied for a specific, posted position).

Viewing the evidence in this case in the light most

favorable to the defendants as the proponents of the instruction,

see Butynski, 592 F.3d at 276, it cannot be said that this case

presented an exception to the Velez prescription. The defendants

adduced ample evidence that vacant positions at MGH and NWH were

formally advertised in medical journals. Because there was no

evidence that MGH and NWH had a standard procedure of never

formally posting employment vacancies, a Velez instruction was

permissible. See Butynski, 592 F.3d at 276; see also Brown v.

Coach Stores, Inc., 163 F.3d 706 , 710 (2d Cir. 1998) (requiring

plaintiff to show that she applied for particular, open positions

even though employer posted such positions "infrequently").


Dr. Shervin complains about the district court's refusal

to instruct the jury in accordance with Travers (discussed in Part

IV(A.) supra). In an effort to avail herself of the Travers

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court's suggestion that a claim of retaliation might survive

summary judgment even without "direct evidence linking the person

expressing animus to the allegedly retaliatory act" so long as the

animus flowed from the "apex of the organizational hierarchy" such

that the person displaying the animus was "a source with the formal

authority to enforce compliance," Travers, 737 F.3d at 147, she

requested the following instruction:

[Y]ou may assess whether any retaliatory or biased animus harbored and voiced by those at the top of the organization could have made its way through the organization and informed the decisions at issue here. You may consider whether the decision made reflects a reluctance to frustrate the objectives of those high up in the organization. . . . even if there is no direct or admitted evidence, no testimony or communication or no chronicling of communications between those at the apex of the organization and those who made the decisions at issue.

The district court denied this request, citing the "state of the


In considering whether the failure to give a requested

instruction is error, we must first determine whether the omitted

instruction was correct as a matter of law. See DeStefano, 59

F.3d at 2. Here, however, there is no evidence from which the

jury reasonably could have concluded that the Travers criteria

were met: the record is simply devoid of admitted evidence

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sufficient to ground a finding of animus in the higher reaches of

the Partners organization.

In all events, the jury was thoroughly instructed that

it could consider circumstantial evidence, that it could draw

reasonable inferences in light of common sense and personal

experience, and that discriminatory or retaliatory animus could be

established if a decisionmaker was shown either to have been

influenced by, or to have ratified, another's animus. Taken in

the ensemble, these various instructions covered the waterfront

and addressed in substance the heart of Dr. Shervin's requested

instruction. See, e.g., Zimmerman, 262 F.3d at 79-80 (concluding

that omitted instruction was substantially covered where charge as

a whole "sufficiently addressed the core concern" of proposed

instruction); United States v. McGill, 953 F.2d 10 , 13 (1st Cir.

1992) (similar). Consequently, the omission of the requested

instruction did not constitute an abuse of discretion.


Last, Dr. Shervin assigns error to a statute of frauds

instruction given in relation to her state-law claims of tortious

interference with advantageous business relations against

Partners, Dr. Rubash, and Dr. Herndon. The defendants sought such

an instruction with respect to Dr. Shervin's charge that Dr. Rubash

had promised her a position at MGH in 2005 but withdrew that

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commitment in 2009 (allegedly as a result of Dr. Shervin's pursuit

of an internal grievance and this lawsuit).

Under Massachusetts common law regarding claims of

tortious interference with advantageous business relations, one

way in which a plaintiff can establish the existence of an

advantageous relation is to prove the existence of an enforceable

contract. See Blackstone v. Cashman, 860 N.E.2d 7 , 12 (Mass.

2007); Powers v. Leno, 509 N.E.2d 46 , 49 (Mass. App. Ct. 1987).

But the Massachusetts statute of frauds bars the enforcement of an

oral contract that cannot be performed within one year from the

date of its making. See Mass. Gen. Laws ch. 259, § 1. This

stricture extends to employment agreements. See Irving v.

Goodimate Co., 70 N.E.2d 414 , 416 (Mass. 1946). As Dr. Shervin

claimed that Dr. Rubash had offered her a position at MGH in 2005

to commence after the conclusion of her residency in 2008 (and

which, therefore, was not to be performed within one year from the

date of its making), this purported oral contract would have been

unenforceable as a matter of law and could not serve as a basis

for a claim of tortious interference with an advantageous

relationship in the nature of a contract.

Dr. Shervin objected to the requested instruction on the

ground that no defendant had pleaded the statute of frauds as an

affirmative defense. The district court, citing Conjugal

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Partnership Comprised by Jones & Jones v. Conjugal Partnership

Comprised of Pineda & Pineda (Jones), 22 F.3d 391 , 400 (1st Cir.

1994), overruled this objection; exercised its equitable power to

bypass the raise-or-waive rule, see FDIC v. Ramirez-Rivera, 869

F.2d 624 , 626 (1st Cir. 1989); and instructed the jury on the

effect of the statute of frauds.

As a general matter, unpleaded affirmative defenses are

deemed waived. See id. But even though the defendants never

pleaded the statute of frauds as an affirmative defense, the

district court did not abuse its discretion in giving the

challenged instruction. We explain briefly.

A district court may relax the raise-or-waive rule when

equity so dictates and there is no unfair prejudice to any opposing

party. See Jones, 22 F.3d at 400. In this case, Dr. Shervin did

not assert any breach of contract claims and, thus, the defendants'

duty to plead an affirmative defense based on the statute of frauds

was arguable at best. See Mass. Gen. Laws ch. 259, § 1 (applying

statute of frauds to actions in the nature of contract). In such

a situation, principles of fundamental fairness counsel in favor

of giving the trial court broad discretion as to whether to allow

the defense. See, e.g., Pane v. RCA Corp., 868 F.2d 631 , 637 (3d

Cir. 1989) (concluding that when unpleaded issue was not an

affirmative defense but a standard of liability under applicable

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statute, duty to plead not triggered and relaxation of raise-or-

waive rule warranted).

By the same token, there was no unfair surprise: Dr.

Shervin had ample notice prior to trial that the defendants

envisioned the statute of frauds as an issue in the case. For one

thing, Dr. Rubash's summary judgment motion referenced the

applicability of the statute of frauds in the context of the

tortious interference claims. For another thing, the defendants'

proposed jury instructions, filed prior to the start of trial,

included the very type of instruction at issue here. Hence, the

district court did not abuse its discretion in sanctioning the

statute of frauds defense. See, e.g., Agri-mark, Inc. v. Niro,

Inc., 214 F. Supp. 2d 33 , 43 (D. Mass. 2002).

Dr. Shervin's further argument is equally unavailing.

Taking the evidence in the light most favorable to the proponents

of the instruction (here, the defendants), see Butynski, 592 F.3d

at 276, we see no substantive error in the challenged instruction.

To the extent that Dr. Shervin sought to prove that she

and Dr. Rubash had entered into an agreement in 2005 that she would

work at MGH after the completion of her residency in 2008, the

court was entitled to tell the jury that such an employment

contract would be unenforceable if not in writing. See, e.g.,

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Powers v. Bos. Cooper Corp., 926 F.2d 109 , 110 (1st Cir. 1991)

(applying Massachusetts law); Goodimate, 70 N.E.2d at 416.

We add, moreover, that insofar as Dr. Shervin sought to

prove not a contractual relationship but a different species of

advantageous business relationship, see, e.g., Leno, 509 N.E.2d at

49, any risk that the statute of frauds instruction would mislead

the jury was minimal. The court obviated such a risk by its

further instruction that "[a] plaintiff need not show an

advantageous business relationship was a contractual

relationship," but, rather, an advantageous business relationship

may include a "probable prospective business relationship with a

third party" from which she had "a reasonable expectation of future

economic benefit."

In this instance, all roads lead to Rome. Taking into

account the state of the evidence, the charge as a whole, and the

applicable standards of review, we conclude that the court below

did not abuse its discretion in giving the challenged instruction.


As this case illustrates, there is a certain rough-and-

tumble quality to the high-stakes world of academic medicine.

Here, however, the jury heard a welter of conflicting evidence

presented by able lawyers and determined, after a fundamentally

fair trial, that the defendants' conduct — though perhaps

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insensitive in some respects — did not cross the border into the

forbidden realms of discrimination and retaliation. In the absence

of prejudicial error (and we have found none here), we have no

license to substitute our judgment for that of the jurors.12

We need go no further. For the reasons elucidated above,

we affirm the judgment entered in the district court.


12For the sake of completeness, we note that Dr. Shervin also has raised a claim of cumulative error. Because we have found no reversible error, this claim necessarily fizzles. See Williams, 146 F.3d at 49 ("Absent any particularized error, there can be no cumulative error.").

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