Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—1st Cir.: Fired physician's assistant who alleged sex discrimination revives retaliation claim, (Aug 26, 2026)

By Jason Albright, J.D.

A male orthopedic surgeon accused her of disrespecting him, and the practice fired her at his insistence.

A physician’s assistant for New Hampshire Neurospine Institute, P.A., put on notice of her impending discharge after a male orthopedic surgeon accused her of disrespecting him, then fired and cut off from severance negotiations after she complained of sex discrimination, may proceed to trial on her retaliation claim but not her claim of sex discrimination, the First Circuit found. The practice argued that she terminated the severance negotiations, but her demand letter expressed that she was willing to work at the practice as either an employee or a contractor and that she was open to continued negotiation, and she adduced evidence that the practice’s executive director wanted to accelerate her termination and to withdraw the independent contractor opportunity because of the content of her demand letter regarding sex discrimination (Russo v. New Hampshire Neurospine Institute, P.A., No. 25-1519 (1st Cir. Aug. 25, 2026)).

Professional association. The New Hampshire Neurospine Institute, according to the court, is a professional association of medical doctors located in Bedford, New Hampshire. Some of the Institute’s doctors are partners, meaning they hold ownership interests and voting rights, while others are regular employees. A male orthopedic spine surgeon is a partner, and he served as the Institute’s VP. The Institute has never employed a female doctor, the court noted.

Physician’s assistant. The plaintiff began working for the Institute in March 2008 as physician’s assistant (PA). At the time, the Institute had two main specialties: neurosurgery and orthopedic surgery, each of which “maintained largely separate operations.” She primarily worked in neurosurgery. In August 2016, the Institute merged its neurosurgery and orthopedic surgery practices.

First negative interaction. On October 15, 2016, a few months after the merger, the PA and the VP had their first negative interaction. She was on call and performing rounds at Elliot Hospital in Manchester, New Hampshire, where the patient of another Institute doctor “suddenly coded” because of an apparent “massive heart attack.” The other doctor instructed the PA to remain with his patient.

At the time, a neurosurgeon was serving as the on-call neurosurgeon for the Institute and was conducting rounds at Concord Hospital in Concord, New Hampshire. The VP was also was on-call, but he was traveling out of state with his family to attend his son’s hockey game. The VP called the PA to ask her to see a patient at St. Joseph’s Hospital in Nashua, New Hampshire. He described the patient as an “urgent” case and asked her to see the patient “at that moment” because the patient had a lumbar epidural abscess, which can cause paralysis.

She told the VP that she did not believe she could go see his patient because “there was an emergent situation that had developed at the Elliot Hospital.” The VP “did not sound happy” with her response, so she said that she would call the other doctor and the neurosurgeon.

VP got angry. Reporting back to the VP, she explained that both other doctors wanted her to remain at Elliot Hospital and asked the VP if he “could get [to St. Joseph’s] first.” The VP then “got angry” and said he would not go to St. Joseph’s. He later described her tone as “disrespectful,” “hateful,” and “resentful.” He believed that she did not want to follow his instructions. However, she ultimately went to St. Joseph’s to attend to his emergent patient.

Other doctors’ impressions. Later, the VP called the other two doctors to determine if the PA had been lying about the coding patient at Elliot Hospital. During his call with one, he complained that she had been “very rude,” “very insubordinate,” and “abrasive.” The other doctor confirmed that she had “followed [his] directions,” however, and the neurosurgeon later noted that she “did the correct thing.”

VP reported the interaction. The VP later reported the interaction with the PA to the Institute’s executive director (ED), expecting that she would discipline the PA. The ED urged the PA to “clear the air” with the VP but did not otherwise discipline her. The PA stated she never had any follow-up discussion with the VP about the October 15, 2016 incident.

March 2019 board meeting. Following additional negative interactions with the VP in the summer of 2017 and on March 9, 2019, when the VP called the PA “[fuck]ing passive-aggressive and disrespectful,” the Institute held a board meeting on March 25, 2019 at which it discussed her possible termination. The VP stated that he could no longer work with her because she was “disrespectful, insubordinate, [and] difficult to work with” and further described her as “rude, abrasive, [and] unhelpful.” He expressed that he was unwilling to remain at the Institute if she continued to work there in what was described as a “her-or-me comment.”

The other partners also expressed their views of the situation. One of the doctors thought she was a “good PA” and he “had no complaints about her professionalism,” although she could be “brash and opinionated.” The neurosurgeon also “said [he] had no problems” with her. The ED reported that she had made statements regarding the VP’s alleged laziness and that she said she would “never apologize.”

Discharge decision. After additional discussion, the partners unanimously voted to terminate the PA. The decision was based on the conclusion that “there was no other alternative,” and it was impossible to “insulate” the VP from the PA so “one of them ha[d] to go.”

“[T]ransition schedule.” The day after the board meeting, the ED informed the PA that the partners had voted to terminate her employment. The ED proposed “work[ing] out a transition schedule,” and she agreed. Per the ED, the transition period would be “mutually beneficial” because she could continue working at the Institute while searching for other employment, and the practice could avoid being short-staffed. The two had further conversations about a potential transition plan on March 29, 2019, during which the PA expressed concerns about experiencing gender bias at the Institute.

Proposed separation and general release. On April 2, 2019, the ED sent the PA a proposed separation and general release agreement that provided terms for her transition. The agreement stated that she would work at the Institute through June 28, 2019, and would receive a $15,000 severance payment. The Institute also contemplated allowing her to work at the Hillsborough County Nursing Home as an independent contractor with another Institute physician.

Counter-proposal. Two days later, on April 4, 2019, the PA made a counter-proposal that she would work until April 19 and then take her accrued paid time off until July 9, 2019. She also proposed that she would work at the nursing home during her vacation period and then after July 9, 2019. The ED offered to revise the separation agreement accordingly and, in the meantime, the two “addressed [[the PA’s]] work schedule and duties so that it met with [their mutual] approval.” As a result, on April 11, 2019, the ED sent a modified separation agreement that included the PA’s paid-time-off proposal, contained an independent contractor agreement, and reduced her severance to $2,500.

Demand letter. The PA did not agree to the revised agreement, and on April 29, 2019, her counsel sent the ED a demand letter reiterating the gender bias complaint that the PA had first raised a month earlier. The demand letter stated that her counsel could not “advise [[the PA]] to consider the proposed Independent Contractor Agreement,” but also that she “remain[ed] willing” to (1) “provide . . . services as either an employee or as an Independent Contractor” and (2) “reach an amicable and private resolution to the employment matter.”

She proposed a severance payment of $100,000. The demand letter concluded by noting, “[i]n the meantime, [the PA] . . . expect[ed] to be able to work in an environment that is free of workplace harassment, discrimination[,] and retaliation . . . .”

“[D]one.” On April 30, 2019, the day after the PA sent her demand letter, the ED wrote to another Institute employee that she was “still working out the details but . . . plan[ned] to have [[the PA]] done this week.” On May 2, 2019, the Institute ended her employment, and the ED explained in a May 3, 2019 email to her that her immediate termination was “in light of the situation.”

Also on May 3, the ED sent an instant message to the physician at the nursing home stating “[s]orry but I've had to tell [[the PA]] she is done. She is making allegations that are unacceptable and demanding a large sum of money. A fair offer was made to her as well as a counter offer of her choosing, which she is now rejecting.”

Recommendation letters? The PA asked four of the Institute doctors, including the neurosurgeon, to provide recommendation letters, and all four initially agreed to do so. On May 30, 2019, however, the ED sent an instant message to several Institute doctors stating, “As you all know [[the PA]] has made threats of wrongful firing. I have not heard from her or her attorney recently[,] but she has reached out to some people for a reference. Given the situation I am advising her and her attorney that those requests must go thr[ough] our legal counsel. Her threat of legal action requires we follow this process.” Prior to the PA’s termination, the neurosurgeon could not recall ever being instructed to refrain from writing a letter of recommendation.

Independent investigator’s report. The PA obtained a new job shortly thereafter in early June 2019. The following month, the Institute hired independent investigator to determine if she had experienced sex discrimination. The investigator interviewed the PA, the VP, and other Institute employees before drafting findings of fact and a report. As relevant, the investigator reported that the VP had expressed to her that he could not continue to work with the PA because he was afraid she would disrespect him again, and that “he couldn’t look himself in the mirror as a husband and father to small children if he allowed himself to be treated with such disrespect.”

Lawsuit and decision below. On August 22, 2021, after exhausting administrative remedies, the PA sued the defendants in federal court. She brought claims of (1) sex discrimination against the Institute under Title VII and N.H. Rev. Stat. Chapter 354-A, (2) workplace retaliation against the Institute and the VP under Title VII and N.H. Rev. Stat. Chapter 354, and (3) sex discrimination against the VP under a New Hampshire law provision prohibiting aiding, abetting, and/or inciting discrimination.

The district court initially granted summary judgment on the claims against the VP. The Institute then moved for summary judgment, and the court granted summary judgment for it as well, finding that the PA could not establish either sex discrimination or retaliation.

She timely appealed both summary judgment decisions to the First Circuit.

Equal-opportunity explosiveness. The appeals court first upheld summary judgment against her sex discrimination claims. Among other things, she argued that the VP’s anger at her was an overreaction and therefore signaled pretext for sex discrimination, but the court was unpersuaded. Drawing all reasonable inferences in her favor, the court noted, the record showed that a jury might conclude that the VP yelled at her on multiple occasions because he felt that she was disrespecting him. And indeed, in some cases, “becoming inappropriately angry or emotional can suggest a non-neutral response to a plaintiff because of a protected characteristic, permitting an inference of ‘conscious animus or less conscious bias.’”

But that was all there was. There was “no other circumstantial evidence here that permits an inference of discrimination,” concluded the court. “And because [the VP] had a history of explosive emotional reactions to many other colleagues, both male and female, the record indicates that he engaged in undesirable workplace conduct toward Institute employees regardless of gender.”

Retaliation. The PA’s retaliation claim, however, could go to trial. Here, she alleged that the Institute subjected her to two adverse actions. It (1) accelerated her termination during the transition period and (2) denied her a role as an independent contractor at the nursing home. Here, the practice argued that she terminated the severance negotiations, but the court was not fully unpersuaded. Her demand letter expressed that she was willing to work at the practice as either an employee or a contractor and that she was open to continued negotiation, the court noted, and she adduced evidence that the ED wanted to accelerate her termination and to withdraw the independent contractor opportunity because of the content of her demand letter regarding sex discrimination.

Chief among her evidence was the ED’s message to the physician at the nursing home making clear that the PA was “done” because “[s]he [was] making allegations that are unacceptable . . . .” The ED also expressed to the PA that her termination was “in light of the situation.” And she instructed the Institute doctors that references could not be directly provided due to the PA’s “threat of legal action.” Together, the court concluded, the ED’s statements were enough to permit the retaliation claim to proceed to trial.

The case is No. 25-1519.

Judge: Aframe, S.

Attorneys: Robert Scott Mantell (Law Offices of Robert Scott Mantell) for Gina Russo. Adam M. Hamel (McLane Middleton) for New Hampshire Neurospine Institute, P.A. David Betancourt (Friedman Feeney) for Uri M. Ahn.

Companies: New Hampshire Neurospine Institute, P.A.

Cases: SexDiscrimination Discrimination Retaliation MaineNews MassachusettsNews NewHampshireNews PuertoRicoNews RhodeIslandNews