Eileen P. Kirk, M.D. v. The Hitchcock Clinic, et al.

Appellant Eileen Kirk appeals the decision of the district court granting summary judgment in favor of appellees The Hitchcock Clinic, Mary Hitchcock Memorial Hospital, Dartmouth Hitchcock Medical Center, Dartmouth College, Dartmouth Medical School, Lisabeth Maloney, Barry Smith, Thomas Colacchio, and Ellen Hubbell (collectively, "Hitchcock") as to her claims of sex discrimination and retaliatory and discriminatory discharge. Kirk v. Hitchcock Clinic, No. CIV. 98-700-M, 2000 WL 1513715 (D.N.H. Sept. 29, 2000) (Summ. J. Order). We affirm.

BACKGROUND

Kirk brought this discrimination action against her former employer pursuant to Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. Because the district court order provides a well-summarized factual background, Kirk, 2000 WL 1513715, at *1-*3, we limit our chronology to the key events.

Kirk was hired by Hitchcock in September of 1992 to work as a doctor in the Obstetrics and Gynecology Department. Her continued employment was subject to annual review. After five years, she was to be eligible for "voting membership," a status akin to tenure in an academic institution. For Kirk's annual appointments in 1993, 1994, and 1995, she was recommended without reservation and reappointed without incident. Sometime in 1995, Kirk became concerned about the quality of care in the labor and delivery ward,(1) and became something of a crusader in raising these quality assurance issues. This caused a strain in her relationships with some of the nurses and/or the nursing leadership.

In 1996, Hitchcock began negotiating with neighboring Alice Peck Day Hospital ("APD") to provide APD with obstetrical services. Hoping to escape the tense working environment at Hitchcock, Kirk volunteered to be one of the doctors assigned to APD. The chairperson of the department at the time, Dr. John Currie, told her that he was not going to send a woman to APD. Interpreting this comment as sex discrimination, Kirk reported Currie to the Medical Director. Following an internal investigation that concluded that the remark, while poorly phrased, represented a business decision and not discrimination,(2) the matter was for the most part resolved with an apology by Currie to Kirk.

During this time, Kirk continued to voice her concerns regarding alleged quality control issues, which resulted in more bad feelings between Kirk and several individuals at Hitchcock. Prior to her reappointment in 1996, Kirk agreed to work on improving the situation in several ways. Nevertheless, not much changed in the subsequent year, and Kirk was denied reappointment and tenure in 1997 due to "lack of collegiality." After failing to have this decision overturned by Hitchcock's internal appeals process, and losing her claim brought under New Hampshire's "Whistleblower's Act," this lawsuit proceeded in the federal district court of New Hampshire.

The district court's order in response to Hitchcock's Motion for Summary Judgment held the following: (1) Kirk had not produced evidence that the alleged hostile work environment to which she was subject was based on sex; (2) Kirk's discrimination claim based on the 1996 comment made by Currie that he was not sending a female ob/gyn to APD was time-barred since it was not brought within the 300-day filing deadline prescribed by 42 U.S.C. § 2000e-5(e); (3) the failure to timely file was not excused by any exceptional circumstance that would warrant tolling the time limit; (4) the 1996 comment was not part of a pattern of ongoing discrimination that culminated in her 1997 firing under any "continuing violation" theory; and (5) Kirk had not offered evidence that her termination was the result of her reporting the 1996 Currie comment or of disparate treatment. Kirk, 2000 WL 1513715.(3) In this appeal, Kirk focuses on the issues of timeliness and wrongful termination. Specifically, she first argues that the 1996 Currie remark should be considered under either the "serial" or "systematic" continuing violation theory. In the alternative, she requests that we toll the 300-day time limit based on principles of equitable estoppel. Second, she appeals the holding that her termination was neither retaliatory nor motivated by sex discrimination.

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Affirmed.

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