Holtz & Reed Secures First Circuit Victory in “Epic” Employment Discrimination Case

Posted on: Wednesday, November 11th, 2015

The latest chapter of Shervin v. Partners Healthcare System, et al., a case Massachusetts Lawyers Weekly has labeled an “epic gender bias case,” ended in a decisive victory for Partners HealthCare System and the Massachusetts General Physicians Organization, when the First Circuit Court of Appeals upheld an “across-the-board” jury verdict secured by Holtz & Reed.

With trenchant language spanning more than sixty-five pages, the First Circuit wholly rejected Dr. Shervin’s efforts to “calumnize[] the district court[]” as “untenable” and “self-serving averments” – “broadsides that … miss the mark” and “importuning” that “strain[ed] credulity.”  More, the First Circuit characterized Dr. Shervin’s appellate arguments as “easily dispatched,” “stumbl[ing] at the starting gate,” and issues over which the Court “need not tarry.”

Tom Reed represented Partners and the MGPO on the appeal.  Herb Holtz and Jay Sullivan were lead trial counsel for the defense.

The case arose out of allegations by Dr. Shervin, a former orthopedic resident at MGH, that the Defendants had engaged in gender discrimination and retaliation when, in February 2007, it placed her on academic probation. Dr. Shervin’s probation ended in September of 2007, but nevertheless, she alleged that “retaliation persisted through her graduation from the program in June of 2008,” and that the Defendants interfered with her job prospects post-graduation. In October 2009, Dr. Shervin filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD); that complaint was later dismissed (as Dr. Shervin elected to pursue her claims in court), and in April of 2010, Dr. Shervin brought suit in federal district court, asserting state-law claims of unlawful discrimination and retaliation.

At summary judgment, the District Court held that Dr. Shervin’s discrimination and retaliation claims were time barred by the 300-day statute of limitations under federal and state discrimination laws, and accordingly, could not serve as a basis for liability or damages.

After a hotly contested 26-day trial, a federal jury returned a verdict for the Defendants on all counts, finding that the Defendants had not engaged in gender discrimination.

Dr. Shervin appealed, alleging a host of errors, including that the District Court had “miscalibrated the statute of limitations,” “improperly denied recusal,” “made several untoward evidentiary rulings,” and “committed instructional errors.” The First Circuit disagreed, and rejected Dr. Shervin’s appeal in full, affirming the jury’s “take-nothing verdict,” reached after what the Court described as a “fundamentally fair trial.”

In a carefully crafted opinion, the Court made clear that “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,” and that here, Dr. Shervin had “notice almost immediately after being placed on probation that this disciplinary action was both tangible and concrete.”

Importantly, in rejecting Dr. Shervin’s related claim–that the District Court had erred in failing to apply the “continuing violation doctrine”– the Court reaffirmed the contours of the doctrine, concluding that “[to establish the third element] the plaintiff must show that a reasonable person in her circumstances would have refrained from filing a complaint within the limitations period. 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,” and that here “[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.”

For information on our trial or appellate practices, please contact Tom, Herb, or Jay at 617.720.0501.

A copy of the First Circuit’s decision can be found here:




Comments are closed.