The road to hell is paved with good intentions. Especially when the good intentions are accompanied – or at least apparently accompanied – by bad ones.
The United States Court of Appeals for the First Circuit, just last month, issued an opinion in an employment case that illustrates, with unusual clarity, how an employer can shoot itself in the foot by saying and doing things in the course of dismissing an employee that, had it been properly advised, it probably wouldn’t have said or done.
The employer, as a result, is paying the price. And in the process gotten its name in the permanent and public annals of American jurisprudence in a case that serves as a cautionary tale for employers who alter the terms of an employee’s departure after receiving a discrimination complaint.
Background: A Long-Tenured Employee and a Difficult Relationship
The case is Russo vs. New Hampshire Neurospine Institute, P.A. and Uri M. Ahn (1st Circuit August 25, 2026). The plaintiff, Gina Russo, was a physician’s assistant who had worked for the defendant medical practice (the “Practice“) for eleven years. Her employment apparently went well until she had a series of run-ins with Dr. Ahn, an orthopedic surgeon, the Practice’s vice-president and one of its owners. The conflicts began as early as October of 2016 and continued until March of 2019.
Dr. Ahn and Ms. Russo seem to have mixed about as well as oil and water. One cannot fairly conclude from a judicial opinion who was at fault, but Dr. Ahn accused Ms. Russo of repeated insubordination and, in various ways, making his work life hard. Eventually, he’d had enough. He, at a meeting of the board of directors on March 25, 2019, told his colleagues that he was going to leave the Practice if Ms. Russo continued to work there, “in what was described as a “her-or-me comment”. His colleagues voted unanimously to terminate her employment, since “it was impossible to insulate” Dr. Ahn from her, “so one of them had to go”.
But she didn’t go (meaning that she wasn’t fired) right away. What happened next is a bit convoluted but worth knowing so that the court’s conclusions can be understood.
The Practice’s executive director (the “ED“), the next day, told Ms. Russo that the partners had voted to terminate her employment. But the ED “proposed work[ing] out a transition schedule, and Russo agreed.” The transition was intended to be “mutually beneficial” in that “Russo could continue working at the Institute while searching for other employment, and the [P]ractice could avoid being short-staffed.” The ED and Ms. Russo “had further conversations about a potential transition plan” on March 29, 2019, during which Ms. Russo – and this is worth underscoring – “expressed concerns about experiencing gender bias” at the Practice.
That shot across the bow should have gotten the ED’s attention. Apparently, it didn’t.
The ED, about a week later, “sent Russo a proposed separation and general release agreement that provided terms for Russo’s transition. The agreement stated that Russo would work at the [Practice] … through June 28, 2019, and would receive a $15,000 severance payment. The [Practice] … also contemplated allowing Russo to work” at a nursing home “as an independent contractor” with another Practice physician.
The discussions didn’t end there. Soon after that, Ms. Russo “made a counter-proposal that she would work until April 19 and then take her accrued paid time off until July 9, 2019”, and 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 [Ms. Russo’s] work schedule and duties so that it met with [their mutual] approval.” The ED then provided Ms. Russo with a “modified separation agreement that included Russo’s paid-time-off proposal, contained an independent contractor agreement, and reduced her severance to $2,500.”
A Complaint Enters the Picture
Ms. Russo balked – and lawyered-up. In late April, her counsel sent a demand letter “reiterating the gender bias complaint that Russo had first raised a month earlier.” The demand letter said that her lawyer “could not advise [Russo] to consider the proposed Independent Contractor Agreement,” but also that Ms. Russo remained willing to (1) “provide … services as either an employee or as an Independent Contractor and (2) reach an amicable and private resolution”. Ms. Russo proposed a severance payment of $100,000. The demand letter concluded by noting, “[i]n the meantime, Ms. Russo … expect[ed] to be able to work in an environment that is free of workplace harassment, discrimination[,] and retaliation ….”
The day after Ms. Russo sent the demand letter the ED wrote to another Practice employee that she was “still working out the details but … plan[ned] to have [Russo] done this week.” Soon after that, on May 2, 2019, the Practice ended Ms. Russo’s employment and the ED told M. Russo by e-mail on May 3 “that her immediate termination was in ‘light of the situation.’” The ED, that same day, sent an instant message to a Practice physician saying “I’ve had to tell [Russo] she is done. She is making allegations that are unacceptable and demanding a large sum of money” (emphasis added). The ED, on top of all that, directed several Practice physicians to refrain from providing Ms. Russo with letters of recommendation because Ms. Russo had “made threats of wrongful firing”, as a result of which the ED told her and her attorney that those requests “must go thr[ough] our legal counsel” and that “[h]er threat of legal action requires we follow this process.”
Ms. Russo sued the Practice and Dr. Ahn. She asserted (in part) claims for sex discrimination and retaliation under Title VII of the Civil Rights Act. The trial court granted summary judgment in favor of both defendants on all claims. Ms. Russo timely appealed to the First Circuit.
The appellate court reversed the trial court’s decision as to the retaliation claim because Ms. Russo had presented “sufficient evidence for a reasonable factfinder to conclude that the [Practice] … retaliated against her because of her complaint in the Demand Letter about sex discrimination when it accelerated her termination and denied her the independent contractor opportunity.”
The Takeaway
The ED had probably thought that she was doing the right thing by trying to protect the Practice as she had, but the appellate court concluded otherwise. The Practice found itself stuck with the retaliation claim for the simple reason that it had offered Ms. Russo opportunities to which she wasn’t legally entitled and then retracted them for what the court saw as retaliatory reasons.
Why? Because, according to the court, Ms. Russo had “adduced evidence that” the ED “wanted her ‘done’ because “[s]he [was] making allegations that are unacceptable,” and the only allegations Russo had made were her claims of sex discrimination. That was direct evidence of “retaliatory animus” – a fancy phrase for retaliatory intent. The Practice, in other words, had rescinded opportunities previously offered to M. Russo because she had accused the practice of sex discrimination in employment. Hard to look much more retaliatory than that, when all that an employee has to prove is that (a) she engaged in protected conduct, (b) she was subjected to an adverse employment action and (c) the adverse employment action is “causally linked to the protected conduct.” The court of appeals thus concluded that a jury could reasonably find that Ms. Russo had suffered unlawful retaliation.
That’s what did the Practice in. Not alleged sex discrimination, but rather the Practice’s offering an olive branch to a long-term employee in an apparent effort to smooth her transition to other employment and then snapping it back almost immediately after she had engaged in the protected conduct of accusing the Practice of sex discrimination. The Practice’s goal of trying to reach a constructive compromise with Ms. Russo may have begun as perfectly innocent. But the moment that Ms. Russo accused the Practice of sex discrimination it should have secured competent legal advice before deviating an iota from what it had offered her before – because, where the law of retaliation is concerned, any such deviation can be construed as an “adverse action” that can get the employer sued.
As the Practice has learned the hard way.
