Post-Muldrow Adverse-Action Requirement: “Some Harm” Still Demands a Terms-and-Conditions Change; MHCWA “Harassment” Likewise Requires a Terms-and-Conditions Impact (First Cir.)

1. Introduction

This appeal arises from an internal quality-and-safety dispute within a major academic medical center. Susan O'Horo, M.D., an interventional radiologist employed by Boston University Medical Center Radiologists, Inc. and serving as Director of Quality and Safety in the Interventional Radiology Division at Boston Medical Center Corporation, alleged that her efforts to report and remediate misconduct—principally involving a colleague, Dr. Mikhail Higgins—were met with discrimination and retaliation.

Dr. O'Horo asserted that her leadership role was undermined, that she was subjected to discriminatory hostility, and that the environment became so intolerable that she resigned in January 2020 (framed as constructive discharge). She later pursued claims under Title VII, Mass. Gen. Laws ch. 151B, and the Massachusetts Health Care Whistleblower Act (MHCWA), Mass. Gen. Laws ch. 149, § 187. The district court granted summary judgment for defendants; the First Circuit affirmed.

The central appellate issues concerned: (i) what qualifies as an actionable “adverse employment action” after the Supreme Court’s decision in Muldrow v. City of St. Louis; (ii) whether the record could support sex-based hostile work environment or constructive discharge; (iii) whether the employer’s stated reasons were pretextual; and (iv) what qualifies as “retaliatory action,” including “harassment,” under the MHCWA.

2. Summary of the Opinion

The First Circuit affirmed summary judgment across the board. It held that Dr. O'Horo’s timely disparate-treatment claims failed because the challenged events did not amount to an actionable adverse employment action (even considering Muldrow v. City of St. Louis), and because she failed to show pretext where the hospital excluded her from investigating her own complaints. Her hostile work environment claim failed because the record did not show severe or pervasive harassment motivated by sex, and many cited incidents were not meaningfully tied to gender. Her constructive discharge theory failed because hostile work environment was not established, and her “constructive demotion” theory also failed for want of proof of pretext.

The derivative Chapter 151B aiding-and-abetting claim against Dr. Soto failed with the underlying discrimination claims. The MHCWA retaliation claim failed because key events predated protected conduct, other alleged actions were not shown to affect terms and conditions of employment, and the record did not support a finding of causation or pretext. The court also interpreted “harassment” in the MHCWA in context as reaching only conduct that affects terms and conditions of employment.

3. Analysis

3.1 Precedents Cited

The opinion is heavily precedent-driven, using established frameworks to sort actionable employment harms from workplace conflict and to police the evidentiary demands at summary judgment.

A. Summary judgment standards and record review

• Boykin v. Genzyme Therapeutic Prods., LP and Alam & Sarker, LLC v. United States (quoting AJ Mini Mkt., Inc. v. United States): the court reiterated that it views the record in the light most favorable to the nonmovant.
• Mullane v. U.S. Dep't of Just. (quoting McKenney v. Mangino) and Irobe v. U.S. Dep't of Agric.: defined “material” and “genuine” disputes for Rule 56 purposes.

B. Time limitations and “background evidence”

• Ramírez Rodríguez v. Boehringer Ingelheim Pharms., Inc. (quoting Nat'l R.R. Passenger Corp. v. Morgan): untimely discrete acts cannot be sued upon, but can be used as “background evidence.” The panel used this to cabin the disparate-treatment timeline without pretending earlier events vanished from context.

C. Disparate treatment and the McDonnell Douglas framework

• Espinal v. Nat'l Grid NE Holdings 2, LLC and Udo v. Tomes: reiterated that disparate treatment requires intentional discrimination motivated by protected status, and direct evidence is not required.
• McDonnell Douglas Corp. v. Green, as implemented in the First Circuit via Ing v. Tufts Univ. (quoting Theidon v. Harvard Univ.): provided the burden-shifting structure where direct evidence is absent.
• Cherkaoui v. City of Quincy, Alvarado-Santos v. Dep't of Health of P.R., and Ahern v. Shinseki: emphasized that prima facie elements vary with the employment decision at issue.
• Stratton v. Bentley Univ. (quoting Luceus v. Rhode Island): supplied the four-part prima facie formulation (protected class; qualified; adverse action; causal connection).
• Smith v. Stratus Comput., Inc. and Boykin v. Genzyme Therapeutic Prods., LP: explained the “presumption vanishes” and the plaintiff’s burden to show pretext at step three.
• Diaz v. City of Somerville (citing Blare v. Husky Injection Molding Sys. Bos., Inc.): confirmed equivalence of step-two articulation under federal and Massachusetts discrimination law.
• Taite v. Bridgewater State Univ., Bd. of Trs. (quoting Brader v. Biogen Inc.): reinforced the low burden at step two—articulate a facially nondiscriminatory reason.
• Pina v. Children's Place and Theidon v. Harvard Univ.: distinguished Title VII’s “pretext-plus” requirement (pretext and discriminatory motive) from Chapter 151B’s “pretext only” approach as stated in Diaz v. City of Somerville.

D. What counts as an adverse employment action after Muldrow

• Morales-Vallellanes v. Potter (quoting Burlington N. & Santa Fe Ry. Co. v. White) and Burlington Indus., Inc. v. Ellerth: anchored the “adverse employment action” concept in changes that affect employment/conditions.
• Muldrow v. City of St. Louis: central to the appeal; the panel accepted Muldrow’s rejection of a “significant harm” gloss, but stressed Muldrow still requires some terms-and-conditions change.
• Rios v. Centerra Group LLC: a post-Muldrow First Circuit application; the panel used it to show that “disparate treatment” without consequences is not enough—there must be a disadvantageous change leaving the employee “worse off.”

E. Pretext, decisionmaker perception, and comparator doctrine

• Theidon v. Harvard Univ. (quoting Adamson v. Walgreens Co. and Vélez v. Thermo King de P.R., Inc.): focused pretext analysis on decisionmaker perception and credibility of the proffered explanation.
• Mulero-Rodriguez v. Ponte, Inc., Thompson v. Coca-Cola Co., Brandt v. Fitzpatrick (quoting Kouvchinov v. Parametric Tech. Corp.): the court treated the key question as whether decisionmakers believed the stated reasons, not whether the reasons were objectively correct.
• Cocuzzo v. Trader Joe's E. Inc. (quoting Vélez v. Thermo King de P.R., Inc.) and Yee v. Mass. State Police: comparator evidence can show discriminatory animus if similarly situated employees are treated differently.
• Ray v. Ropes & Gray LLP (quoting Conward v. Cambridge Sch. Comm.), plus Perkins v. Brigham & Women's Hosp. (quoting Mitchell v. Toledo Hosp.): articulated “close resemblance” and “same conduct without differentiating circumstances.”
• Nat'l Amusements, Inc. v. Town of Dedham: limited the inference-drawing at summary judgment to reasonable, common-sense probabilities.
• Sher v. U.S. Dep't of Veterans Affs. and Rathbun v. Autozone, Inc.: if an employer offers multiple nondiscriminatory reasons, the plaintiff must rebut each; discrediting only one is typically insufficient.

F. Hostile work environment doctrine and limits

• Cordero-Suárez v. Rodríguez (first quoting Marrero v. Goya of P.R., Inc. and then quoting Dressler v. Daniel): explained timeliness for hostile work environment claims as a continuing practice.
• Maldonado-Cátala v. Mun. of Naranjito, Rivera-Rivera v. Medina & Medina, Inc. (quoting Quiles-Quiles v. Henderson): stated the elements and the “permeated with discriminatory intimidation” standard.
• Ponte v. Steelcase Inc.: supported using federal Title VII hostile environment standards when analyzing analogous Chapter 151B theories in this context.
• Stratton v. Bentley Univ. (quoting Murray v. Warren Pumps, LLC) and Henderson v. Mass. Bay Transp. Auth.: neutral comments require context and evidence tying them to protected status; subjective belief alone is insufficient.
• Ahern v. Shinseki and Rodríguez-Severino v. UTC Aerospace Sys.: reiterated Title VII is not a “general civility code.”
• Colón-Fontánez v. Mun. of San Juan, Flood v. Bank of Am. Corp., Alvarado v. Donahoe: used to calibrate “severe or pervasive” and reject infrequent, discrete incidents over months as insufficiently pervasive.

G. Constructive discharge

• Pa. State Police v. Suders and Green v. Brennan: made hostile work environment a “lesser included component” for hostile-environment constructive discharge.
• Agosto-de-Feliciano v. Aponte-Roque and Burns v. Johnson: the court distinguished a First Amendment “demotion by diminution of duties” concept from Title VII’s requirements, while recognizing that a true stripping of duties (e.g., to clerical tasks) can be actionable—but only if the plaintiff can meet the discrimination/pretext burden on the record.
• Gerald v. Univ. of P.R.: cited in a footnote to illustrate that subjective offense can remain triable despite seemingly inconsistent communications, though the court ultimately affirmed for other reasons.

H. Chapter 151B aiding and abetting

• Abramian v. Pres. & Fellows of Harvard Coll.: treated aiding and abetting as derivative; absent a primary Chapter 151B violation, the derivative claim fails.

I. MHCWA retaliation and burden-shifting uncertainty

• Romero v. UHS of Westwood Pembroke, Inc.: noted as the Massachusetts appellate decision addressing summary judgment on an MHCWA claim without using McDonnell Douglas.
• Bourbon v. Kmart Corp., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., and Theriault v. Genesis HealthCare LLC: framed (without resolving) whether McDonnell Douglas is procedural or substantive and whether it should apply to state-law claims in federal court; the panel bypassed the issue because plaintiff’s proof was insufficient even with burden shifting.
• Turner v. Marathon Petroleum Co.: used as an example of when a state’s own adoption of McDonnell Douglas would make the issue moot.
• Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R.: established that adverse decisions predating protected conduct generally cannot be caused by that conduct.
• Santiago-Ramos v. Centennial P.R. Wireless Corp.: supported considering affidavit evidence at summary judgment if properly grounded.
• Echevarría v. AstraZeneca Pharm. LP, Alvarado v. Donahoe, and Carreras v. Sajo, García & Partners: temporal proximity may help at prima facie stage but is usually insufficient alone to show pretext.
• Fournier v. Massachusetts and Harrington v. Aggregate Indus.-Ne. Region, Inc.: examples where temporal proximity plus additional evidence can defeat summary judgment.
• Pena v. Honeywell Int'l, Inc. (alteration in original) (quoting Soileau v. Guilford of Me., Inc.): “the larger picture” can defeat causal inferences.
• Rodríguez-Cardi v. MMM Holdings, Inc.: inconsistencies or shifts in an employer’s explanation can evidence pretext; here, plaintiff did not show such inconsistencies.
• United States v. Leach: warned against changing legal theories on appeal (“switching horses”).
• Util. Air Regul. Grp. v. EPA: statutory interpretation must consider context; the panel used this to read MHCWA “harassment” alongside enumerated adverse actions and the “terms and conditions” catchall.

3.2 Legal Reasoning

A. Disparate treatment: the decisive bottlenecks

The court’s disparate-treatment analysis narrowed to two recurring bottlenecks: (i) whether an event qualifies as an adverse action (especially after Muldrow v. City of St. Louis), and (ii) whether the plaintiff can show pretext (and under Title VII, discriminatory motive as well).

1) “Usurpation of duties” and pretext failure

Rather than linger on the prima facie case, the panel invoked its discretion to “bypass” that question and move directly to pretext because, on this record, the plaintiff could not show the employer’s stated reasons were pretextual (citing Luceus v. Rhode Island). Defendants asserted nondiscriminatory reasons for excluding Dr. O’Horo from investigating her own complaints (risk of perceived bias, concerns about her processes, and the division chief’s oversight role).

The court emphasized decisionmaker perception: the relevant question is whether the decisionmakers believed the stated rationale, not whether plaintiff’s competing narrative might be more accurate (drawing on Mulero-Rodriguez v. Ponte, Inc., Thompson v. Coca-Cola Co., and Brandt v. Fitzpatrick). It also rejected a comparator argument because the proposed comparator (the division chief) differed in role (a superior with broader oversight) and in the conflict-of-interest posture (not the complainant), rendering the comparison inapt under Cocuzzo v. Trader Joe's E. Inc. and related comparator authorities.

2) Scheduling discrepancy post-Muldrow: “some harm” still requires consequences

The plaintiff sought to leverage Muldrow v. City of St. Louis to reframe relatively small slights as independently actionable. The panel accepted Muldrow’s doctrinal shift (no “significant” harm requirement), but underscored a limiting principle: the plaintiff must still show that the challenged action changed a term or condition of employment in a way that caused harm—i.e., left her “worse off.” Relying on its own post-Muldrow decision, Rios v. Centerra Group LLC, the panel held that a review calendar discrepancy that never resulted in additional reviews (only one review occurred) and that produced no demonstrable consequence did not qualify as an adverse employment action.

B. Hostile work environment: the missing sex-based nexus and the severity/pervasiveness shortfall

The court treated the hostile environment claim as failing on two related axes:

• Nexus to sex: Many cited incidents were facially neutral (criticisms of “emotional intelligence,” “square peg” remarks, conflict over reporting processes). Under Henderson v. Mass. Bay Transp. Auth. and Rivera-Rivera v. Medina & Medina, Inc., subjective belief is not enough; plaintiffs must connect neutral behavior to discriminatory animus with evidence and context.
• Severity or pervasiveness: Even crediting the arguably gender-linked pieces (a remark that her complaints might be taken more seriously because she is a woman; a one-time observation/review episode), the conduct was too isolated—two incidents separated by about a year—to meet the demanding “severe or pervasive” standard. The court compared the record to Colón-Fontánez v. Mun. of San Juan and pervasiveness guidance in Alvarado v. Donahoe.

C. Constructive discharge: hostile-work-environment predicate and the failed “constructive demotion” reframing

The panel applied Pa. State Police v. Suders and Green v. Brennan to hold that hostile-environment constructive discharge requires a viable hostile environment claim—absent which the constructive discharge theory collapses.

Dr. O’Horo also advanced a “constructive demotion” theory by citing Agosto-de-Feliciano v. Aponte-Roque. The court deemed that authority misplaced (a First Amendment case), and reiterated that even where duty-stripping can be actionable (as recognized in Burns v. Johnson), the plaintiff still had not shown pretext for the employer’s leadership choices concerning the Higgins investigation and related quality processes.

D. Chapter 151B aiding and abetting: derivative collapse

Applying Abramian v. Pres. & Fellows of Harvard Coll., the panel affirmed dismissal because the aiding-and-abetting theory depended entirely on an underlying Chapter 151B discrimination violation, and none survived summary judgment.

E. MHCWA: causation, pretext, and a contextual reading of “harassment”

The MHCWA section does two notable things: it avoids deciding whether McDonnell Douglas Corp. v. Green should apply as a matter of Massachusetts law (citing Theriault v. Genesis HealthCare LLC), and it construes the statute’s “harassment” term in context to require a terms-and-conditions impact.

• Conference speaking engagement: The claim failed on chronology. Under Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R., an action predating protected activity generally cannot be caused by it. The panel found the invitation was extended in December 2018, before the January 2019 protected reporting, and upheld reliance on affidavit plus corroborating email evidence (citing Santiago-Ramos v. Centennial P.R. Wireless Corp.).
• Two “directorships”: Even assuming the non-selections could qualify as “retaliatory action,” the court held the plaintiff failed to show pretext. Temporal proximity alone—while sometimes enough for a prima facie case—rarely proves pretext, as in Echevarría v. AstraZeneca Pharm. LP, Alvarado v. Donahoe, and Carreras v. Sajo, García & Partners. The plaintiff lacked the additional evidence present in Fournier v. Massachusetts or Harrington v. Aggregate Indus.-Ne. Region, Inc., and the “larger picture” cut against causation (Pena v. Honeywell Int'l, Inc.).
• Constructive discharge / component acts: The constructive discharge theory failed, and the plaintiff’s attempt to repackage component events as independent “retaliatory actions” ran into waiver concerns (United States v. Leach) and, in any event, insufficient evidence that these events affected terms and conditions of employment.
• Meaning of MHCWA “harassment”: The panel rejected reading “harassment” in isolation; using Util. Air Regul. Grp. v. EPA, it read “harassment” alongside enumerated actions (discharge, suspension, demotion, denial of promotion, layoff) and the catchall (“other adverse actions … affecting the terms and conditions of employment”). It concluded that MHCWA “harassment” likewise reaches only conduct sufficient to affect terms and conditions. A scheduling discrepancy resulting in one review, with no showing of harm to employment terms, did not qualify.

3.3 Impact

A. Post-Muldrow boundary-setting in the First Circuit

This decision (together with Rios v. Centerra Group LLC) supplies practical guidance for litigants attempting to translate Muldrow v. City of St. Louis into broader Title VII liability. The court’s message is that Muldrow removes the “heightened bar” of “significant” harm, but does not federalize every workplace slight. Plaintiffs must still prove a disadvantageous change to an identifiable term or condition of employment that produces real consequences.

B. Evidentiary discipline for hostile environment claims

The opinion reinforces a rigorous nexus requirement: where conduct is facially neutral and plausibly attributable to personality conflict, process disputes, or performance concerns, plaintiffs must “connect the dots” with admissible evidence. The court’s treatment of widespread interpersonal conflict (including evidence the alleged harasser also mistreated male colleagues) will be cited by defendants to rebut attempts to infer sex-based animus from generalized workplace dysfunction.

C. MHCWA: “harassment” and “terms and conditions”

The court’s contextual reading of “harassment” in Mass. Gen. Laws ch. 149, § 187 is likely to influence future MHCWA litigation. By aligning “harassment” with the statute’s explicit “terms and conditions” language and enumerated adverse actions, the decision narrows the space for claims based on procedural irritants and investigatory friction that do not concretely change employment conditions.

D. Open question preserved: McDonnell Douglas and the MHCWA

The panel explicitly avoided deciding whether the McDonnell Douglas Corp. v. Green framework applies to MHCWA claims, noting the absence of Massachusetts appellate guidance (and referencing Romero v. UHS of Westwood Pembroke, Inc.). Future cases may litigate that issue directly, particularly where the burden-shifting framework could be outcome-determinative on close facts.

4. Complex Concepts Simplified

Adverse employment action (disparate treatment)

To sue for disparate treatment, it is not enough to show unfairness; you must show your employer did something that changed a term or condition of employment (for example, firing, demotion, pay change, materially different responsibilities). After Muldrow v. City of St. Louis, the change need not be “significant,” but it must still be real and consequential enough to leave the employee worse off in some identifiable way. A plan that never happens (like extra reviews that never occur) typically won’t qualify.

McDonnell Douglas burden shifting

In many discrimination and retaliation cases without direct evidence, courts use a three-step structure: (1) the employee makes a minimal showing suggesting discrimination/retaliation; (2) the employer gives a legitimate non-discriminatory/non-retaliatory reason; (3) the employee must show that reason is not the real one (pretext), and under Title VII usually also show the true motive was discriminatory.

Pretext and “decisionmaker perception”

Courts ask whether the stated reason is a cover story. Even if the employer is wrong, the key is whether the decisionmakers honestly believed their reason at the time. Showing you disagreed, or that another interpretation exists, usually is not enough without evidence the employer did not truly believe what it said.

Hostile work environment

A hostile environment requires harassment because of sex (or another protected trait) that is severe or pervasive enough to alter working conditions. Ordinary conflict, rudeness, or strict management is not enough—Title VII is not a general “civility code.”

Constructive discharge

Constructive discharge means conditions were so intolerable a reasonable person would feel forced to resign. When the theory is “hostile-environment constructive discharge,” the employee must first prove a hostile work environment.

5. Conclusion

O'Horo v. Boston Medical Center Corporation is a post-Muldrow decision that clarifies what remains of the adverse-action threshold: while “significant” harm is not required, plaintiffs must still show a disadvantageous change to an employment term or condition with real consequences. The First Circuit also reinforced strict evidentiary demands for linking workplace conflict to sex-based animus in hostile environment claims, treated hostile environment as a necessary predicate for hostile-environment constructive discharge, and interpreted the MHCWA’s “harassment” provision in context to require a terms-and-conditions impact. The court left open, for a future case, whether McDonnell Douglas formally governs MHCWA claims—but demonstrated that insufficient proof will fail under either approach.