Tuli v. Brigham & Women's Hospital

United States Court of Appeals
For the First Circuit

Nos. 08-2026, 09-1597, 09-1603, 09-1731

SAGUN TULI,

Plaintiff, Appellee/Cross-Appellant,

v.

BRIGHAM & WOMEN'S HOSPITAL;
ARTHUR DAY, M.D.,

Defendants, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

John P. Ryan with whom Myles W. McDonough, John A. Donovan,
III, Nicholas W. Schieffelin and Sloane & Walsh, LLP were on brief
for defendant, appellant/cross-appellee Arthur Day, M.D.
Robert R. Hamel, Jr. with whom John J. Reardon, Matthew
Grygorcewicz and Melick, Porter & Shea, LLP were on brief for
defendant, appellant/cross-appellee Brigham & Women's Hospital,
Inc.
Michael S. Bonner and Gregory J. Aceto with whom Johnson &
Aceto, LLP was on brief for plaintiff, appellee/cross-appellant.

August 29, 2011
 BOUDIN, Circuit Judge. Now before us are four appeals in

a case brought by Dr. Sagun Tuli, a female neurosurgeon, against

her employer Brigham and Women's Hospital ("the Hospital") and her

former co-worker and supervisor Dr. Arthur Day. The first appeal

was by the Hospital from a preliminary injunction sought and

obtained by Tuli; the three more recent appeals followed a jury

verdict awarding Tuli damages against the defendants and a

permanent injunction crafted by the district judge.

In 2002, the Hospital hired Tuli as an associate surgeon

in the Department of Neurosurgery and Day as residency director and

vice chairman of the department. In 2002 and 2003, Tuli was made

the department's professionalism officer and representative to the

Hospital's Quality Assurance and Risk Management Committee

("QARM"), which required her to investigate and in some cases

report on other doctors' case complications. In 2004, the

departure of two colleagues left Tuli as the sole spine surgeon;

she says that, unlike prior male doctors, she was not promoted to

the position of Director of Spine.

Most of Tuli's claims stem from her interactions with

Day, who became her supervisor when he was promoted to chair the

department in 2007. As QARM representative, Tuli was asked to

investigate three of Day's cases, which ultimately were reported to

the state's Board of Registration of Medicine. Tuli alleged that

Day's behavior toward women has been consistently inappropriate and

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demeaning. Starting in 2005 and continuing until 2007, Tuli began

to bring her concerns about Day to Dr. Anthony Whittemore, the

chief medical officer of the Hospital.

Tuli herself exchanged cross-charges with a resident in

2005. He accused her of threatening his job after he told Day that

she was upset by Day's decision to operate on one of her patients

against her wishes; Tuli accused the resident of mismanaging one of

her patients by failing to check blood work, leading to a

complication requiring urgent care. Tuli also received a number of

patient complaints in 2006 and 2007, primarily concerning her

attitude and communication skills.

Tuli's medical staff credentials were due for review by

the Hospital's credentials committee in October 2007. Day

presented Tuli's case to the committee, stating that she had mood

swings, that twenty to thirty members of the operating room staff

did not want to work with her, and that she would benefit from

anger management training. The committee then conditioned Tuli's

reappointment on obtaining an evaluation within four months by an

outside agency called Physician Health Services ("PHS") and

agreeing to comply with its recommendations.

After concerns were raised about the lack of specificity

of Day's presentation, the committee had Whittemore re-present

Tuli's case at a December 2007 meeting; Whittemore provided a

somewhat more balanced opinion, but mostly rehashed the issues Day

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had discussed during the earlier meeting and did not tell the

committee of Tuli's prior complaints against Day. The committee

affirmed its earlier decision. Near the end of December, Tuli

filed the present lawsuit and sought a preliminary injunction to

prevent loss of her privileges during the pendency of the case.

Under both federal and state law, Tuli's complaint

charged the Hospital and Day with gender discrimination through

both disparate treatment and a hostile work environment,1

retaliation,2 and violation of Massachusetts' Health Care

Whistleblower Act.3 It also charged the Hospital with equal pay

violations under both federal and state law4 and Day with

intentional interference with advantageous relations and slander.

The district court granted the preliminary injunction,

which the Hospital appealed; shortly thereafter the trial resulted

in a jury decision favorable to Tuli in most respects, which then

led to a permanent injunction. This court then deferred action on

the original appeal, anticipating that it would be mooted by the

superceding permanent injunction. When the Hospital said that

1
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e to
e-17 (2006); Mass. Gen. Laws ch. 151B, § 4(1) (2011).
2
Title VII, 42 U.S.C. § 2000e-3 (2006); Mass. Gen. Laws ch.
151B, § 4(4) (2011).
3
Mass. Gen. Laws ch. 149, § 187(b) (2011).
4
Equal Pay Act of 1963, 29 U.S.C. §§ 201-19 (2006); Mass. Gen.
Laws ch. 149, § 105A (2011).

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attorneys' fees might be affected by the resolution of the appeal

on the original injunction, we instead consolidated the old appeal

with the new appeal from the final judgment.

The jury awarded Tuli $600,000 against the Hospital in

compensatory damages on the retaliation claim; $1,000,000 in

compensatory damages against it on the hostile work environment

claim; $20,000 in damages against Day for economic harm on the

interference claim; and nominal damages for the whistleblower claim

against the Hospital, the slander claim against Day, and non-

economic harm from the interference claim against Day. Tuli lost

her discriminatory disparate treatment and unequal pay claims.

Both sides have now appealed from the final judgment.

Hostile work environment. In contesting the award on the

hostile work environment claim, the Hospital makes four different

arguments. We begin with the contention that the claim failed as

a matter of law. Our review on such issues is de novo, but the

evidence is taken in the light most favorable to the verdict.

Monteagudo v. Asociación de Empleados del Estado Libre Asociado de

P.R., 554 F.3d 164, 170 (1st Cir.), cert. denied, 130 S. Ct. 362

(2009).

To prevail on such a claim based on gender

discrimination, Tuli had to offer evidence to show that

(1) she is a member of a protected class; (2)
she was subjected to unwelcome harassment; (3)
the harassment was based upon gender; (4) the
harassment was sufficiently severe or

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 pervasive that it altered the conditions of
her employment and created an abusive working
environment; (5) the offending conduct was
both objectively and subjectively offensive;
and (6) some basis for employer liability has
been established.

Aponte-Rivera v. DHL Solutions (USA), Inc., ___ F.3d ___, No. 10-

1655, 2011 WL 2027977, at *2 (1st Cir. May 25, 2011) (citing

Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir. 2007)).

Assuming admissibility, the evidence was ample. The

primary actors, in Tuli's account, were Day and another doctor--Dr.

Dong Kim--who like Day is no longer at the Hospital. Kim's

conduct, according to testimony set forth below that the jury could

have accepted, was blatantly sexist and offensive; Day's, according

to other evidence, sufficiently demeaning to a female surgeon as to

be unlawful. Because chronology is pertinent, the principal

episodes are set out in a time line:

2002-03: Day ignores Tuli at conferences by
stating, "[L]et's ask the spine guys, Eric and
Marc, what they think," and omitting her
despite the fact that she is also a spine
surgeon.

2004: At a graduation dinner and in front of
a female resident, Day asks Tuli, "Can you get
up on the table to dance so you could show
them how to behave."

2004: In the summer, Tuli attends a
bachelorette party for a coworker and sees a
blow-up doll with a picture of her face
attached to it.

2004: Day makes comments on different
occasions: "You're just a little girl, you
know, can you do that spine surgery?" "Oh,

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girls can do spine surgery?" "Are you not
strong enough to use the hand instruments?"

2005: In February or March 2005, with his arm
on Tuli's back, Kim says, "Why don't we leave
this place and go to the Elliott Hospital so I
can give you an oral exam"; "I think you're
really hot"; and "I imagine you naked."

2005: Early in 2005, Day sits in on Tuli's
teaching conference and disagrees with Tuli's
lecture. He does this more than once, and
Tuli does not believe that he did so during
male doctors' teaching conferences.

2005: Residents, who are supervised by Day as
residency director, ignore Tuli's pages, fail
to assist her on rounds, and fail to show up
for clinical duties. In the summer, Tuli
notices that she is given less-experienced,
junior residents for her cases.

6/05: Tuli becomes aware of a Hospital-
affiliated party planned with "strippers and
cages and beer kegs." Although it was
supposed to celebrate the incoming chief
residents, a new female chief resident was
excluded. Day approves of the party and of
outside funding for it.

2005: In September or October, Day and Tuli
meet to clear the air, and Day says, "Our
relationship is like that of lovers and you've
cheated on me," with his hand on her arm; he
also calls her "deranged." When she attempts
to shake his hand at the end of the meeting
around 10:00 p.m., he gives her a prolonged
hug.

11/05: A resident throws Tuli into the scrub
sink and then the garbage.

12/06: Kim states, "Oh, could you wear one of
those belly dancing outfits and show us a
dance?"

2007: Kim states that he would "like to have
the opportunity to sexually harass" Tuli; Tuli

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 observes him fondling a physician assistant at
a department event.

5/07: Day looks in on Tuli's spine surgery
and makes "some comment to the effect of
whether [she] was able to do that case because
[she] was a girl, are you sure you can do
that, you're just a girl, something to that
effect."

8/07: Day bars Tuli from spine oncology
research saying that he had "a guy in mind"
for the job.

Without specifying dates, Tuli also reported that Day had

given her other prolonged hugs and had held her hand as they walked

at work. She also testified that Day had questioned her authority

in multiple teaching conferences and had made comments repeatedly

about Tuli "being a little girl" and questioning whether she could

do a "big operation"; the incidents noted above were particular

examples of this recurrent behavior for which she could remember

specific dates.

The "accumulated effect of incidents of humiliating,

offensive comments directed at women and work-sabotaging pranks,

taken together, can constitute a hostile work environment."

O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001).

Tuli repeatedly complained about these acts, but the Hospital did

nothing to prevent their repetition. That Tuli managed to get her

work done despite the harassment does not prevent a jury from

finding liability. Billings v. Town of Grafton, 515 F.3d 39, 51

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(1st Cir. 2008). The jury was entitled to find that a hostile

workplace had been tolerated and that the Hospital was liable.5

The Hospital argues that Tuli "unreasonably failed" to

seek corrective action, Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 765 (1998), because--though she reported the harassment

to Whittemore--she never filed a formal complaint. But Whittemore

discouraged a formal complaint, conceding that Tuli's fear of

retaliation was reasonable and known to him. See Reed v. MBNA

Mktg. Sys., Inc., 333 F.3d 27, 35-36 (1st Cir. 2003). Nor does

this affirmative defense apply where, as here, the employer has

taken a "'tangible employment action' . . . that would be

actionable under Title VII independent of a hostile work

environment." Marrero v. Goya of P.R., Inc., 304 F.3d 7, 21 n.3

(1st Cir. 2002) (quoting Ellerth, 524 U.S. at 761).

Both the federal and state provisions require that a

charge be filed within 300 days of the alleged unlawful employment

practice. Title VII, 42 U.S.C. § 2000e-5(e)(1) (2006); Mass. Gen.

Laws ch. 151B, § 5 (2011). Tuli filed her complaint with the

Massachusetts Commission Against Discrimination (MCAD) on November

5
The Hospital cites cases holding offensive acts insufficient
to show a hostile workplace, but they involve less egregious
conduct. E.g., Pomales v. Celulares Telefónica, Inc., 447 F.3d 79,
83 (1st Cir. 2006) (one comment and gesture suggesting wish to have
sexual relations); Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 56
(1st Cir. 2000) (three age-related comments); Morgan v. Mass. Gen.
Hosp., 901 F.2d 186, 192-93 (1st Cir. 1990) (two minor incidents
and one request to dance at Christmas party).

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28, 2007. The Hospital says that events listed in the time line

set forth above that occurred prior to that date but outside of the

300-day window cannot be considered.

However, under Supreme Court precedent, a series of acts

may comprise a single hostile environment claim, and

[i]t does not matter, for purpose of the
statute, that some of the component acts of
the hostile work environment fall outside the
statutory time period. Provided that an act
contributing to the claim occurs within the
filing period, the entire time period of the
hostile environment may be considered by a
court for the purposes of determining
liability.

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).

This is the "classic example of a continuing violation." Tobin v.

Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009).

The sequence also satisfies Massachusetts' parallel

analysis, which does not penalize victims of discrimination for

reporting misconduct as it occurs and attempting to work with their

employers to remedy the situation. Cuddyer v. Stop & Shop

Supermarket Co., 750 N.E.2d 928, 939-41 (Mass. 2001). Although in

2005 and 2006, prior to the 300-day window, Tuli was subject to

"pinpricks," id. at 941, Day's presentation to the committee in

October 2007 could be viewed as making clear that the situation was

hopeless, triggering the clock for the sum of prior acts comprising

the continuing violation. Id. at 942.

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 The Hospital also complains that various evidence bearing

on the hostile work environment claim was wrongly admitted at

trial. Specifically, the Hospital contends that comments

attributed to Day and Kim, as well as testimony from Eileen Hardy

about a penis statue and cookie jar with women's underpants in

Day's office and sexual drawings Day downloaded onto her Palm

Pilot, were either inadmissible hearsay, irrelevant, unfairly

prejudicial, or some combination of the three.

The claims of hearsay fail because the statements in

question were not admitted for the truth of the matter asserted.

If certain of the offensive conduct was unknown to Tuli at the

time, it remained relevant for purposes of showing notice to the

Hospital and toleration of a general climate of offensive remarks

and displays. See Cummings v. Standard Register Co., 265 F.3d 56,

63-64 (1st Cir. 2001). Those of Kim's statements made off-site at

a going-away party remained relevant to the hostile work

environment claim, e.g., Parrish v. Sollecito, 249 F. Supp. 2d 342,

350-52 (S.D.N.Y. 2003), and Tuli reported Kim's conduct to

Whittemore.

The Hospital claims that Tuli waived her rights when, in

a June 16, 2006, letter to the Hospital, Tuli's counsel said that

she appreciated efforts made by the Hospital to change behavior in

her department and would hold her grievance in abeyance to allow

Whittemore to address the issues. The letter explicitly states

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that it is not a waiver, and a deferral in the hope of improvement

does not foreclose a renewed complaint or lawsuit. Cf. Cabán

Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007)

(formal release).

Finally, the Hospital sought jury instruction language to

the effect that "mere offensive utterances," "offhand comments" and

"isolated incidents" do not amount to discrimination, and it says

now that the failure to give its language was error. The district

court gave a balanced instruction describing the considerations

that bear on hostile work environment, noting that severity,

frequency and offensiveness were all relevant. It was not obliged

to use the Hospital's language.

Retaliation. The Hospital next claims the district court

should have granted judgment as a matter of law on the retaliation

claim. Under Title VII, 42 U.S.C. § 2000e-3(a), it is

an unlawful employment practice for an
employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated
in any manner in an investigation, proceeding,
or hearing under this subchapter.

Massachusetts has a counterpart provision. Mass. Gen. Laws ch.

151B, § 4(4) (2011).

Tuli's position was that she had complained about Day and

that the credentials committee action against her comprised

retaliation. The Hospital does not dispute that Tuli's complaints

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were protected conduct, but it disputes that the evidence showed

either of the two other requisites of a retaliation claim: that

Tuli suffered "an adverse employment action" and that "a causal

connection existed between the protected conduct and the adverse

action." McMillan v. Mass. Soc'y for the Prevention of Cruelty to

Animals, 140 F.3d 288, 309 (1st Cir. 1998) (citation omitted),

cert. denied, 525 U.S. 1104 (1999).

Tuli provided sufficient evidence from which a jury could

conclude that the consequences of the obligatory counseling ordered

by the Hospital--invasion of privacy, potential stigma, and

possible impact on employment and licensing elsewhere--"might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (internal quotation marks omitted). Obligatory

counseling is not a typical adverse action but the impact here

could be deemed sufficient by the jury if the action was prompted

by a retaliatory motive.

The issue of causal connection is more complicated. A

hospital has good reason to intervene--both to protect itself and

to safeguard its patients--where a doctor is in need of treatment

in order to provide competent care, and courts are likely to defer

to an impartial assessment. Further, there is no suggestion that

individuals on or involved with the committee other than Day

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harbored any improper animus or acted with a retaliatory motive in

voting to compel Tuli to seek and follow an evaluation.

But Day represented the Hospital as the head of his

department in presenting the case against Tuli, cf. Staub v.

Proctor Hosp., 131 S. Ct. 1186, 1191 (2011), and Whittemore–-who

knew the background--re-presented it without qualifying information

about Day. Day presented the case even though he had been the

subject of adverse critiques by Tuli of his own performance as part

of her official responsibilities and Day was the subject of her

complaints about Day's own wrongful conduct toward her. It was for

the jury to decide whether the committee was misled by Day in a way

that altered the outcome.

Nor was the jury obliged to think the causal chain broken

by the second round of review. Whittemore was himself relying in

part on information from Day, and he did not tell the committee of

the complaints that Tuli had made about Day; although some members

were apparently aware of some of the background, it was not

disclosed at the meeting. Two committee members testified that

knowledge of the complaints against Day would have been "important

information."

In making her retaliation claim, Tuli also argued that

Day's negative report about her reflected in part her own

investigation of cases in which she reported unfavorably on Day's

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handling of patient cases.6 This, she argued, violated not only

the federal and state statutes relating to discrimination but also

Massachusetts' Health Care Whistleblower Act, Mass. Gen. Laws

ch. 149, § 187(b)(3)-(4) (2011). The latter protects those who

report, inter alia, conduct of a health care facility reasonably

believed to endanger public health. Id.

The jury found for Tuli but awarded her only $1,

presumably regarding the much larger award based on the other two

statutes as compensating the central harm done by the committee's

action. The Hospital says that reporting of alleged errors by Day

occurred too far in the past to contribute to the committee action;

but the jury could view Day's presentation to the committee as

reflecting multiple bases for hostility for purposes of both the

retaliation and Whistleblower Act claims, including Tuli's earlier

investigations.7

6
In November 2005, Tuli was involved in investigating a case
of Day's that was reported to the Board of Registration of
Medicine, and she testified that he "called [her] a whistleblower,
and he said that he was very angry at [her], and at one point he
said he was so angry at [her] that he wanted to cut [her] legs
off." In 2006, Tuli investigated another case of Day's that was
also reported to the Board. Tuli also testified that between 2002
and 2007 Day suggested that she should step down from the QARM
committee at least two or three times.
7
In attacking the Whistleblower Act verdict, the Hospital
invokes an affirmative defense contained in section 187(c)(1), but
that provision expressly applies only to claims brought by
plaintiffs under section 187(b)(1), whereas Tuli's claims meet the
requirements of sections 187(b)(3) and (b)(4).

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 Tortious interference. The hostile work environment and

retaliation claims created liability only for the Hospital, but the

jury also made three awards of damages against Day--one in the

amount of $20,000 for tortious interference with advantageous

relations. Under Massachusetts law, the elements are a known

advantageous relationship such as employment (undisputed here);

deliberate interference, improper in motive or means; and resulting

economic harm. Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667,

690 (Mass. 2005).

Day asserts that judgment as a matter of law should have

been granted because his acts were not improper in motive or means.

Such an improper motive may be "actual malice" or "a spiteful,

malignant purpose, unrelated to the legitimate corporate interest."

King v. Driscoll, 638 N.E.2d 488, 494-95 (Mass. 1994). Although

Day says the motive must be entirely improper, Massachusetts'

highest court says it is enough that malice was the "controlling

factor" in any interference. Weber v. Cmty. Teamwork, Inc., 752

N.E.2d 700, 716 (Mass. 2001).8

Here, Day says he was aiming only to give the committee

a legitimate assessment of Tuli, who had numerous objectively

8
Accord Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 24
(Mass. 1981). Brewster Wallcovering Co. v. Blue Mountain
Wallcoverings, Inc., 864 N.E.2d 518 (Mass. App. Ct. 2007), speaks
of interference that was "entirely malevolent and unrelated to any
legitimate corporate interest"; Day did not invoke Brewster in the
district court and, assuming dubitante that there is any true
conflict, the SJC's language controls.

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troubling complaints against her; she points to reasons why he was

independently hostile to her and to his overstatement of complaints

against her and failure to disclose his biases. The jury was free

to conclude that his motives were a mix of discriminatory animus,

Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 77 (1st Cir.

2001), retaliatory animus, id., and "personal hostility or ill-

will," Weber, 752 N.E.2d at 716.

Day says that the jury should have been instructed, as he

requested, that personal dislike and sloppy business practices

cannot be the bases for such a claim, citing Boothby v. Texon,

Inc., 608 N.E.2d 1028, 1040 (Mass. 1993), and Weber, 752 N.E.2d at

716. This misreads Boothby, which said only that a reasonable

measure undertaken on behalf of the company by a supervisor was not

tainted merely because the supervisor also disliked the employee,

and overreads Weber, 752 N.E.2d at 715-16, which did not say and

could not mean that improper business behavior is inherently non-

malicious and can never amount to wrongful interference.

Day also says that the evidence did not support a finding

of economic harm or at least harm in the amount of $20,000. The

harm relied on by Tuli in her tort claims against Day was a loss of

of income. This, she alleged, resulted from Day's failure to give

her a performance evaluation in 2007, received by every other

doctor in the department and the trigger for an increase in salary,

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as well as Day's diversion to his own practice of patient referrals

in which she would otherwise have shared.

Although the jury did not explain its calculations, the

raises in base salary received by the other doctors ranged from

five to fifteen percent. A five percent raise on Tuli's $400,000

base salary is $20,000--the same figure awarded by the jury. The

jury could rationally conclude on this evidence that Day's decision

not to evaluate Tuli was part and parcel of his interference with

her credentialing and cost her $20,000.

Defamation. Separately, the jury awarded Tuli $1 payable

by Day for slander based on his statement to the committee that he

had been told that between 20 and 30 nurses no longer wanted to

work with Tuli in the operating room. Day says that this was

merely non-actionable opinion, although the specific numbers are

pretty plainly a factual assertion; alternatively, he says that it

was privileged under state law unless reckless. E.g., Bratt v.

Int'l Bus. Machs. Corp., 467 N.E.2d 126, 129 (Mass. 1984).

Day testified that the source of his information was a

conversation with Nurse DiTullio and Dr. Aglio on a specific

occasion, but DiTullio testified that she made no such statement

during the conversation in question, nor had she ever heard anyone

else make it. Day's statement bore directly on Tuli's re-

credentialing and--in light of other evidence as to Day's

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interactions with Tuli-–could rationally be attributed by the jury

to recklessness or worse.

Remittitur. The Hospital asks us to overturn the trial

court's denial of its motion for remittitur of a portion of the

$1,000,000 (hostile work environment) and $600,000 (retaliation) in

compensatory damages awarded by the jury. Remittitur is called for

where an award is "'grossly excessive, inordinate, shocking to the

conscience of the court, or so high that it would be a denial of

justice to permit it to stand.'" Acevedo-Garcia v. Monroig, 351

F.3d 547, 566 (1st Cir. 2003) (quoting Correa v. Hosp. S.F., 69

F.3d 1184, 1197 (1st Cir. 1995), cert. denied, 517 U.S. 1136

(1996)).

Tuli testified about the emotional impact of the hostile

work environment she encountered, the events she regarded as

retaliation and ultimately the refusal to grant her an

unconditional re-credentialing. Tuli described her day-to-day

existence after Day's presentation as "hell," with the looming

threat of losing her credentials acting "like a gun to [her] head."

She could not eat or sleep and lost ten pounds. She experienced

anxiety, anger, fear, and nervousness, which included physical

manifestations of abdominal pain and nausea.

Tuli further testified that after years of hard work and

striving, she felt "at the end of [her] career"--transformed from

an up-and-coming neurosurgeon into someone who had been reduced to

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a child-like state where she "couldn't function," "didn't open

[her] mail for three months," and "couldn't pay her bills." Asked

about the credentialing committee's adverse decision, she broke

down on the witness stand, repeating the phrase "it was horrible."

She explained:

I worked so hard 20 years, everything I had,
this is all my life was day in and day out
. . . then to come to this fifteen minute
presentation by Dr. Day, it changed my life,
that's it, and I asked an institution to
protect me, and they didn't. They didn't hear
my voices, they didn't hear anybody else's
voices who came to them, nobody's.

Tuli's testimony was corroborated in part by the testimony of her

friend Evelyn Murphy.

There was no medical testimony, but such testimony

although helpful is not required to show emotional harm, Koster v.

Trans World Airlines, Inc., 181 F.3d 24, 35 (1st Cir.), cert.

denied, 528 U.S. 1021 (1999), and it would not have been in Tuli's

interest to claim a mental breakdown or permanent impairment.

Damages for emotional harm under Title VII are limited to $300,000,

42 U.S.C. § 1981a(b)(3)(D) (2006), but under Massachusetts law the

jury was free to exceed the federal dollar limit. 42 U.S.C.

§ 2000e-7 (2006); see Martini v. Fed. Nat'l Mortg. Ass'n, 178 F.3d

1336, 1350 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147 (2000).

There is no basis for the Hospital's suggestion that we

assume that the award was based solely on the federal claims. The

federal and state counterparts for both sets of claims are fairly

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similar; and certainly the Hospital points to no pertinent

differences that would suggest that the jury likely awarded damages

under only the federal version.

The total award of $1.6 million is higher than some

awards where remittitur has been allowed, although several of the

precedents cited to us involved cases with shorter periods of

suffering in which the plaintiffs rapidly recovered their footing.9

At the same time, it is on par with--and noticeably lower when

intervening inflation is considered than--significant emotional

injury awards that have been upheld under Massachusetts law.

Sweeney v. Westvaco Co., 926 F.2d 29, 36 (1st Cir.), cert. denied,

502 U.S. 899 (1991); cf. Dixon v. Int'l Bhd. of Police Officers,

504 F.3d 73, 77-78 (1st Cir. 2007), cert. dismissed, 552 U.S. 1171

(2008).

Finally, we are here asked to review the district court's

refusal to grant a remittitur. That decision is reviewed only for

abuse of discretion. Bielunas v. F/V Misty Dawn, Inc., 621 F.3d

72, 80 (1st Cir. 2010). Conceivably the district court might have

chosen to reduce the award; but, given the duration of Tuli's

9
In Koster, the plaintiff moved on by opening up his own
business and the court emphasized the lack of significant
depression and incapacitation. 181 F.3d at 36. Similarly, in
Labonte v. Hutchins & Wheeler, 678 N.E.2d 853 (Mass. 1997), the
plaintiff's depression abated when he took a new job and started
taking classes. Id. at 861.

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asserted suffering and her powerful testimony, refusing to do so

was not an abuse of discretion.

Unpreserved claims as to instructions. Very little

discussion is required to dispose of Tuli's own claims of error,

which are aimed at augmenting the damages awarded to her. She

complains that the jury instructions did not provide for punitive

damages against the Hospital or Day on the hostile work environment

and retaliation claims and improperly restricted the jury to

awarding nominal damages on the slander claim.

Tuli acknowledges that she did not preserve these claims

at trial, saying instead that the asserted errors constitute "plain

error." The familiar Olano standard governs plain error, United

States v. Olano, 507 U.S. 725, 733-35 (1993), and its multiple

conditions are applied "stringently" in civil cases. Trull v.

Volkswagen of Am., Inc., 320 F.3d 1, 5-6 (1st Cir. 2002), cert.

denied, 540 U.S. 938 (2003); see also Johnston v. Holiday Inns,

Inc., 595 F.2d 890, 894 (1st Cir. 1979) (exceptions only "in

horrendous cases where a gross miscarriage of justice would

occur").

Nothing like that is present in this case. The damages

awarded were not ungenerous and Tuli was given a full opportunity

to litigate her claims. It would be sheer conjecture to suppose

that the jury would have awarded more had it been differently

instructed.

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 Like Tuli, the Hospital attacks the jury instructions

but, apart from one alleged error already dealt with, its

objections too were not properly preserved. See Fed. R. Civ. P.

51(c)-(d). One related to the law governing pretext (an argument

nearly identical to one we rejected in White v. N.H. Dep't of

Corr., 221 F.3d 254, 264-65 (1st Cir. 2000)); another to the rather

obvious relevance of potential legitimate reasons for the

committee's action; a third (again obvious) to the relevance to

causation of the time elapsed between a protected activity and an

adverse employment decision; and the fourth another self-evident

concern about time elapsed between incidents supporting a hostile

work environment claim.

What has been said of Tuli's unpreserved objections

applies equally to those of the Hospital. Even assuming error--

which we do not decide--there is no clear likelihood that the

instructions would have altered any of the results nor any

suggestion of a miscarriage of justice. Any post-judgment

assessment can find arguable flaws in a complex set of

instructions. This is not the rare occasion in which errors not

preserved trigger a retrial.

Attorneys' fees. The district court awarded Tuli

$1,352,525.94 in attorneys' fees for the proceedings in that court,

42 U.S.C. § 1988 (2006), just over 80 percent of what she had

requested. The court supported its award with a detailed sixteen-

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page order containing charts and explanations of the lodestar

calculation and adjustments. The Hospital devotes two pages at the

end of its brief attacking the award, almost all comprising

generalities. Only two points require even brief mention.

The first is that the court allowed higher hourly rates

than the Hospital's expert deemed appropriate, but the brief fails

to acknowledge the evidence on which the court relied, including

affidavits, comparison rates of similar firms, rates in similar

reported cases, and the court's own experience. The second is that

Tuli only prevailed on some of her claims; but Tuli amply exceeded

the threshold for a fee award, Tex. State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 791 (1989), and her recovery was

handsome enough to lead to the Hospital's own demand for

remittitur.

The second issue concerns the preliminary injunction

which the Hospital says should never have been entered. We regard

that injunction, to the extent it still matters, as properly

entered. Much of the evidence pertinent to the committee's

requirement was already in the record at the time of that

injunction and nothing suggested that Tuli posed any imminent or

serious threat to public health or safety. Cf. Rite-Hite Corp. v.

Kelley Co., 56 F.3d 1538, 1547-48 (Fed. Cir.), cert. denied, 516

U.S. 867 (1995).

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 Tuli is thus free to seek attorneys' fees incurred in

defending that injunction on appeal and has already expressed an

intention to seek attorneys' fees in connection with her defense of

the present appeal from the final judgment. This may be done in

accordance with governing rules. See 1st Cir. Local R. 39.1(b).

As to ordinary costs of this appeal, Fed. R. App. P. 39, each side

will bear its own costs. Affirmed.

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