Court: District Court, District of Columbia; March 3, 2019; Federal District Court
Dr. Mark Brader has filed a lawsuit against Biogen Inc., his former employer, alleging disability discrimination and negligent infliction of emotional distress. Following the completion of discovery, Biogen has filed a motion for summary judgment.
Biogen Inc. is a pharmaceutical company focused on developing treatments for serious neurological and rare diseases. Key individuals involved include Alphonse Galdes, Senior VP of Technical Development; Jessica Ballinger, Senior Director of Protein Pharmaceutical Development; Andrew Weiskopf, Director in Protein Pharmaceutical Development, who was Dr. Brader's direct supervisor; and Andrea Sinclair from Human Resources, who provided HR support to the Protein Pharmaceutical Development team. Dr. Brader was employed as a Principal Scientist from October 2007 until November 2015.
Biogen has established policies, including the "Values in Action Code of Business Conduct," which mandates employees report any legal or policy violations, and emphasizes a harassment-free workplace. The company also enforces a Non-Discrimination and Non-Harassment Policy, ensuring a work environment devoid of discrimination and harassment, with obligations for managers to report any incidents without exception. Retaliation against employees who report concerns is strictly prohibited under both the Code and the Policy. Additionally, Biogen adheres to an "ADA Non-Discrimination and Accommodation Policy," affirming its commitment to non-discriminatory practices regarding employees with disabilities. The Global Investigations Protocol outlines the procedures for addressing potential violations of law or internal policies, ensuring thorough investigation and documentation.
On June 18, 2014, Dr. Brader presented a technical review to the PPD group, focusing on his team's past work, which included slides previously used in Biogen presentations. He was particularly invested in this presentation due to the attendance of TD senior management and his pending promotion consideration. Following the presentation, Dr. Dimitrova, Dr. Brader's former manager, raised concerns to Dr. Weiskopf, who subsequently shared this feedback with Dr. Brader on June 20. Dr. Brader reported that Dr. Weiskopf made disparaging comments about his presentation, labeling it "terrible" and accusing it of misrepresenting Dr. Brader's personal views, which he found confusing and offensive. Dr. Brader attempted to discuss this feedback with Dr. Weiskopf several times until June 30, characterizing the feedback as harassment and expressing that it was blatantly false.
In the weeks following the presentation, Dr. Brader's mental health reportedly declined, as noted by his wife. On June 29, he encountered Ms. Ballinger, who perceived that he was not acting like himself. Later that day, he emailed Dr. Weiskopf and Ms. Ballinger to further discuss the feedback, raising their concerns about his behavior, which they later communicated to Ms. Sinclair.
On June 30, 2014, Dr. Brader met with Dr. Weiskopf to address concerns about perceived harassment stemming from Dr. Weiskopf's criticisms of Dr. Brader's June 18 presentation. Dr. Brader requested that Dr. Weiskopf cease his critical comments, which Dr. Weiskopf did not acknowledge as inappropriate. Dr. Brader then invited two colleagues to assist in understanding the disagreement regarding his performance. Despite no physical threats, Dr. Brader felt unsafe due to Dr. Weiskopf's demeanor and refusal to alter his criticisms. Following this meeting, Dr. Brader expressed feelings of agitation and harassment to Ms. Ballinger during a subsequent meeting, describing Dr. Weiskopf's conduct as harassing. When asked why he felt unsafe, Dr. Brader struggled to articulate a clear explanation. Ms. Ballinger later communicated the meeting's events to Ms. Sinclair, who subsequently reached out to Dr. Brader to provide information about the employee assistance program and to address his safety concerns at work.
Dr. Brader commenced sending a series of emails to Ms. Sinclair, Ms. Ballinger, Dr. Weiskopf, and other Biogen employees on June 30 and July 1, 2014, reflecting his belief that he was experiencing a mental health episode. The emails were largely incoherent and expressed his feelings of not being safe at work. He sent multiple emails on June 30, including one to Ms. Sinclair stating he did not feel safe, followed by another email just two minutes later indicating it was his first "normal" email of the day. He reiterated his feelings of unsafety in subsequent emails, receiving a response from Ms. Sinclair who referred him to Biogen's Employee Assistance Program, emphasizing the importance of employee safety.
During this period, Dr. Brader communicated with an external collaborator, mentioning an HR issue and asserting he had informed his supervisor about not feeling safe. Ms. Sinclair requested a meeting with Dr. Brader the following day before he responded to further emails. Later that night, Dr. Brader expressed a need to contact Biogen's CEO and conveyed his distress in several emails.
On July 1, 2014, he continued to email various employees, stating he would seek mental health professional help and mentioned being described as mentally unstable by his supervisor. He also indicated he had sought treatment for possible PTSD and referred to being called "crazy" by his senior director. In a detailed email containing 41 bullet points, he acknowledged concerns about his mental health.
Ms. Sinclair engaged Dr. Brader in conversation to understand his feelings of unsafety, which he linked to performance feedback from Dr. Weiskopf and Ms. Ballinger. After speaking with Dr. Brader's wife, who confirmed his hospitalization, Ms. Sinclair was thanked for her support. On July 7, while hospitalized, Dr. Brader sent additional incoherent emails requesting assistance and expressing fear, though he did not mention harassment or discrimination, focusing instead on the performance feedback he received on June 18, 2014.
Dr. Brader was on medical leave from July 1, 2014, to October 26, 2014, due to a temporary infection following back surgery, as confirmed by both his wife and his healthcare provider. Biogen relied on a third-party vendor for managing medical leave and did not receive any direct medical information regarding Dr. Brader's condition from his healthcare provider. Upon his return to work on October 26, 2014, Dr. Brader initially used vacation time but did not request any further accommodations. He resumed his previous position, responsibilities, and compensation without raising any concerns about safety, discrimination, or harassment.
During his leave, the Avia Project, which he had been working on, was reassigned to another group, and he did not return to it. After his leave, Dr. Brader pursued a new crystallization concept, receiving support and funding until his employment ended. He claimed that the basis for his lawsuit stemmed from his removal from the Avia project and negative feedback from Dr. Weiskopf, whom he accused of making disparaging remarks about his crystallization concept and exhibiting inappropriate behavior prior to his perceived disability. Dr. Brader suggested that Dr. Weiskopf's actions might have been driven by professional jealousy and a desire to take credit for his work.
Dr. Brader received his mid-year performance review from Dr. Weiskopf in late July or August 2015, which he felt was inaccurate but did not attribute to discrimination or know Dr. Weiskopf's motives. He complained to Ms. Ballinger in April 2015 regarding Dr. Weiskopf's conduct, specifically about comments suggesting he was "trying too hard" and limitations placed on his questions. Dr. Brader also followed up with an email on July 31, 2015, while Ms. Ballinger was on vacation, seeking clarification on performance expectations. Upon her return, they communicated further, with Dr. Weiskopf expressing a commitment to help Dr. Brader succeed. In May 2015, Dr. Brader raised concerns to Mr. Fahie about Dr. Weiskopf’s criticism and the mid-year review, despite Mr. Fahie not being his supervisor. On September 29, 2015, Dr. Brader presented a document to Ms. Ballinger outlining his concerns about the mid-year review; notably, this document did not mention harassment or feeling unsafe.
Dr. Galdes, involved in a confidential restructuring plan at Biogen known as "Gemstone," was tasked with creating a list of employees to be laid off. He decided to include Dr. Brader on this list by September 9, 2015, based on a perceived lack of need for Dr. Brader's position related to innovations and biologics, without considering any personal issues Dr. Brader may have been experiencing. The decision to include Dr. Brader was not discussed with Ms. Ballinger or Dr. Weiskopf until it was being implemented in October 2015. Dr. Brader was officially notified on October 22, 2015, about his inclusion on the Gemstone list, with his employment ending on November 6, 2015.
Dr. Brader initiated a legal action in Massachusetts Superior Court on April 7, 2016, which Biogen subsequently removed to the United States District Court for the District of Massachusetts on May 16, 2016, citing federal jurisdiction under the Americans with Disabilities Act (ADA). Biogen filed a motion for summary judgment on October 20, 2017, which Dr. Brader opposed on November 22, 2017. In response to Dr. Brader's opposition, Biogen moved to strike certain affidavits, arguing they lacked personal knowledge, contained hearsay, or were otherwise inadmissible. A hearing on this motion occurred on May 2, 2018, where the court denied Biogen's motion and allowed further submissions regarding the statute of limitations. Dr. Brader submitted his supplemental memorandum on May 16, 2018, and Biogen responded on May 23, 2018. After considering the arguments and evidence, the court granted Biogen's motion for summary judgment.
Regarding the standard of review for summary judgment, the court stated that it will be granted if the movant demonstrates no genuine dispute of material fact exists and is entitled to judgment as a matter of law. The burden shifts to the nonmoving party to show evidence of a factual issue that could influence the case's outcome. The nonmoving party cannot rely on mere allegations but must present specific, provable facts.
Dr. Brader's complaint includes two ADA claims—one for discrimination and one for wrongful retaliation—as well as two similar claims under Massachusetts state law (M.G.L. c. 151B). All four claims assert that Biogen discriminated against and wrongfully terminated Dr. Brader due to his disability. Since these claims share the same factual basis and legal elements, they were addressed collectively by the court.
The court addressed Biogen's argument that Dr. Brader's claims are barred by the statute of limitations, acknowledging that his termination is an adverse employment action within the applicable timeframe. However, any alleged discriminatory acts prior to spring 2015 are outside the statute of limitations. Under the Americans with Disabilities Act (ADA), a claimant must exhaust administrative remedies by filing a charge with the EEOC or a local agency within specific time limits, typically 180 or 300 days from the alleged conduct, which is a prerequisite for filing a lawsuit. Massachusetts law mirrors this requirement, necessitating a timely complaint with the Massachusetts Commission Against Discrimination (MCAD) within 300 days of the unlawful act.
Dr. Brader did not dispute that many incidents relevant to his claim, such as the failure to promote him in 2014 and his removal from a project, occurred beyond the 300-day limit. He contended that these actions constituted a continuing violation and argued for tolling of the statute of limitations on the grounds of reasonable discovery and equitable tolling. The court rejected both arguments.
The continuing violation doctrine allows consideration of conduct outside the limitations period if there is a continuous violation of anti-discrimination law. However, federal courts maintain that discrete acts of discrimination occurring outside the time limit are not recoverable, although the scope of a hostile work environment may be considered. Dr. Brader's claims related to 2014 conduct were deemed time-barred, as Biogen's actions regarding his promotion and project assignment were classified as discrete incidents falling outside the statutory period.
Dr. Brader's claims of workplace harassment and feelings of unsafety suggest potential ongoing violations, but there is insufficient evidence to establish that Biogen's failure to investigate constituted a discriminatory policy violation. Under Massachusetts law, for the continuing violation rule to apply, at least one discriminatory act must occur within the 300-day limitations period, must be substantially related to the earlier acts, and those earlier acts must not have prompted the plaintiff to assert his rights. In cases of harassment creating a hostile work environment, the limitations period begins when the plaintiff knows the employer will not address the harassment, not when the plaintiff recognizes an actionable claim. Despite Dr. Brader's termination occurring within the limitations period, he failed to demonstrate a substantial relationship between this event and the alleged 2014 misconduct. There is no evidence that Biogen's termination decision was influenced by Dr. Brader's earlier mental health issues or that decision-makers were aware of his ongoing concerns post-leave. Dr. Brader's assertion that the statute of limitations should be tolled under the discovery rule is also unconvincing, as he was aware of Biogen's actions, such as his demotion and lack of promotion, shortly after his return from leave in October 2014. Thus, he did not adequately show that his claims from 2014 should be exempt from the limitations period.
Dr. Brader's request for equitable tolling of the statute of limitations due to his mental illness is denied, as his reluctance to confront his employer does not meet the criteria for such tolling. There is no evidence that Biogen concealed information or that Dr. Brader was unaware of the implications of his actions. Only his claim of improper termination in October 2015 is deemed timely and will be examined on its merits.
Biogen argues it was not notified of Dr. Brader's harassment and discrimination claims, which absolves it from the obligation to investigate. To hold an employer liable under the ADA, a plaintiff must demonstrate that they informed the employer of the harassment and its disability-related nature. The legal standards under Title I of the ADA and Title VII of the Civil Rights Act are similar, indicating a legislative intent for uniform application.
Even if Biogen had some awareness of harassment, there was no indication it was disability-based, as Dr. Brader's own statements did not specify such a claim. His complaints primarily focused on feedback from a colleague, and he failed to clarify his feelings of unsafety when prompted. During his medical leave, it was suggested that his behavior might be linked to a medical issue rather than a disability. Upon returning to work, he only requested a part-time schedule, which was accommodated.
Dr. Brader's arguments regarding Biogen's HR policies do not substantiate his claims of discrimination and retaliation, and his assertions about Ms. Sinclair's failure to act do not strengthen his position.
Biogen's motion for summary judgment argues it acted without discriminatory intent and has provided a legitimate, non-discriminatory reason for its employment decisions regarding Dr. Brader, who claims discrimination under the Americans with Disabilities Act (ADA) and Massachusetts law. The legal framework for analyzing these discrimination claims follows the three-part test from McDonnell Douglas Corp. v. Green, requiring the plaintiff to demonstrate: 1) a qualifying disability, 2) the ability to perform essential job functions with or without reasonable accommodation, and 3) that the adverse employment action was taken due to the disability. Biogen does not contest the first two elements but asserts that Dr. Brader has not proven he was discriminated against because of his disability. The burden of proof for unlawful discrimination remains with the plaintiff throughout the process. The court assumes for the motion that Dr. Brader has a disability and can perform his job but does not agree that Biogen's actions constituted discrimination or that its rationale was pretextual, addressing these two elements together.
Dr. Brader has identified two potential adverse employment actions related to his discrimination claims: Biogen's decision to transition the Avia Project to another employee during his medical leave in 2014 and his inclusion in a layoff list in 2015. Although the layoff is within the statute of limitations, the Avia Project transition will be considered as it may support a finding of discriminatory termination. Dr. Brader was on medical leave from July to October 2014, and Biogen's decision to have another employee manage the project was deemed reasonable, as it would not be practical to suspend the project due to one employee's absence. There is no evidence that this transition negatively impacted Dr. Brader’s career, as he did not claim any reduction in pay or demotion.
The layoff, part of a confidential reduction in force codenamed "Gemstone," was executed in October 2015, with Dr. Galdes including Dr. Brader on the list based on a determination that his role was no longer necessary. Dr. Brader failed to demonstrate that he faced discrimination due to his disability, and Biogen provided legitimate, non-discriminatory reasons for both the project transition and his termination. Furthermore, Dr. Brader's assertions of harassment related to his mental illness were unsupported, as he could only speculate about the motivations of his supervisor, Dr. Weiskopf, and did not clearly articulate why he felt unsafe at work.
Dr. Brader cites Biogen's HR policies that outline supervisory responsibilities regarding reported incidents of discrimination or harassment, indicating a failure to investigate his claims of feeling unsafe. He acknowledges that his early complaints were primarily about Dr. Weiskopf's comments rather than unlawful behavior. Despite showing some incoherence in his communications, which suggests issues with his condition, this does not substantiate claims that his disability influenced the treatment he received from Ms. Ballinger and Dr. Weiskopf. Dr. Brader speculates that a promotion decision made in June 2014 was revoked after he became disabled, referencing notes from a meeting discussing promotions; however, these notes do not confirm a decision to promote him at that time. Biogen's reassignment of the Avia Biosystems project during his medical leave is deemed appropriate, and affidavits from relevant parties do not support claims of discrimination based on his disability. Furthermore, while Dr. Brader compares his 15% time spent on new technology advancement to another employee's 20%, this comparison is insufficient to suggest discrimination, as Biogen's decision to terminate him is considered reasonable. Biogen also argues that Dr. Brader did not engage in protected activity regarding his retaliation claim, and even if he did, he cannot prove that any adverse action was a result of retaliation. Summary judgment is granted to Biogen on both discrimination and retaliation claims.
A plaintiff can pursue a retaliation claim even if they do not prevail on a disability claim, as established in *Freadman*, which cites *Soileau v. Guilford of Me. Inc.* The analysis for unlawful retaliation follows a burden-shifting framework similar to employment discrimination claims. To establish a prima facie case of retaliation, the plaintiff must demonstrate: (1) engagement in protected conduct, (2) suffering an adverse employment action, and (3) a causal connection between the protected conduct and the adverse action. Once the plaintiff establishes these elements, the employer must provide a legitimate, nondiscriminatory reason for the employment decision. If the employer does so, the burden shifts back to the plaintiff to prove the motive was retaliatory.
Protected activities under both state and federal law include opposing unlawful practices, filing complaints, and assisting in proceedings before the EEOC or MCAD. Requesting accommodations is also considered protected conduct. Dr. Brader's request to use vacation days qualifies as protected activity. However, establishing that his complaints to supervisors regarding feedback on a presentation constituted protected conduct is more challenging. The record indicates these complaints were based on disagreement rather than opposing unlawful practices. Even if these interactions were protected, there is insufficient evidence to demonstrate a causal link between this conduct and his termination, particularly since Biogen provided a legitimate non-retaliatory reason for terminating him. Consequently, the court grants summary judgment to Biogen on the retaliation claim.
Additionally, Dr. Brader's claim for common-law negligent infliction of emotional distress faces challenges. Biogen contends that this claim is barred by the Massachusetts Workers' Compensation Act (MWCA) and should also fail on the merits. The MWCA precludes common law actions in cases of workplace injuries.
Dr. Brader, an employee of Biogen, asserts a claim for negligent infliction of emotional distress due to treatment by his supervisors. This claim falls under the Massachusetts Workers' Compensation Act (MWCA), which covers personal injuries arising out of and in the course of employment. However, since the essence of his claim is mental harm, it is deemed barred by the exclusivity provision of the MWCA, as established in case law. Although claims for civil rights violations are not compensable under the MWCA, Dr. Brader's emotional distress claim is not incidental but central to his case.
Even if the claim were not barred, it fails on the merits because Dr. Brader has not demonstrated that a reasonable person would suffer similar emotional distress under the circumstances alleged, which appear to be typical workplace disagreements. The court emphasizes that, while reasonableness is typically a factual question, summary judgment is warranted when the evidence leads to only one conclusion. In this case, the absence of corroborative evidence indicating that the alleged conduct exceeded standard professional disagreements supports a decision to grant Biogen’s motion for summary judgment on Dr. Brader's claim.
Biogen's motion for summary judgment has been granted for all claims. Dr. Brader's termination in October 2015 falls within the appropriate timeframe for his claims, as he filed his complaint with MCAD on December 23, 2015, shortly after his termination due to Biogen's reduction in force. He contends that he received a poor mid-year review from his supervisor, Dr. Weiskopf, in mid-2015 and faced ongoing criticism prior to that. Dr. Brader reported Dr. Weiskopf's conduct to Ms. Ballinger in April and July 2015, while Dr. Weiskopf later expressed a willingness to improve the situation in August 2015. These interactions are within the 300-day statutory period for discrimination claims. The court will rely on First Circuit precedent and Title VII interpretations to guide its decision, noting distinctions between Massachusetts law and the ADA regarding definitions and scope. Nonetheless, Massachusetts courts often refer to federal standards when interpreting state law under M.G.L. c. 151B. The court plans to address both state and federal claims concurrently, differentiating only where state law diverges from federal law. Additionally, there is no evidence that Dr. Brader requested to return to the Avia Project, nor that such a request was denied.
