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Starling v. Banner Health

United States District Court, D. Arizona

January 11, 2018

Mark Starling, M.D., Plaintiff,
v.
Banner Health, an Arizona corporation; Marjorie Bessel, M.D.; Julie Nunley; Cindy Helmich; and Lori Davis-Hill, Defendants.

          ORDER

          Neil V. Wake, Senior United States District Judge

         TABLE OF CONTENTS

         I. SUMMARY JUDGMENT STANDARD ................................................................... 1

         II. FACTUAL BACKGROUND ..................................................................................... 2

         A. Starling's First Decade at Banner .......................................................................... 2

         B. Allegations Mount Against Starling ...................................................................... 3

         C. Starling Accuses Banner of Discrimination .......................................................... 6

         D. The Holiday Party and Starling's Termination ...................................................... 7

         E. The Report to the Medical Board ........................................................................ 11

         F. This Action ........................................................................................................... 12

         III. ANALYSIS: SUMMARY JUDGMENT ................................................................ 12

         A. Count I (Banner): Violation of ADEA - Age Discrimination - Termination of Employment .................................................................................................................. 12

         1. Starling's Prima Facie Case ............................................................................. 13

         2. Banner's Proffered Nondiscriminatory Rationale ............................................ 16

         3. Starling's Argument for Pretext ....................................................................... 16

         B. Counts II, VI, and X (Banner): Violation of ADEA - Retaliation ...................... 17

         1. Count II: Termination of Employment ............................................................. 18

         2. Count VI: Performance Improvement Plan ...................................................... 19

         3. Count X: Complaint to the Arizona Medical Board ......................................... 20

         C. Count III (Banner): Violation of ADA - Disability Discrimination - Termination of Employment .............................................................................................................. 20

         D. Count IV (Banner, Bessel, and Nunley): Violation of AEPA - Retaliation - Termination of Employment ......................................................................................... 21

         E. Count V (Banner, Bessel, and Nunley): Violation of AEPA - Retaliation - Termination of Employment ......................................................................................... 22

         F. Count IX (Banner, Bessel, Nunley, Davis-Hill, and Helmich): Invasion of Privacy - Intrusion Upon Seclusion .............................................................................. 23

         G. Counts VII and VIII (Banner, Bessel, and Nunley): Defamation - False Statements Regarding Job Performance ........................................................................ 25

         H. Count XI (Banner and Bessel): Defamation - False Statements in Complaint to the Arizona Medical Board ........................................................................................... 25

         1. Defamation Generally ...................................................................................... 25

         2. The Duty to Report and Qualified Privilege .................................................... 25

         3. Bessel's Letter to the Board ............................................................................. 26

         IV. STARLING'S RULE 56(d) MOTION ................................................................... 28

         A. Comparator Discovery ......................................................................................... 28

         B. Depositions of Decision-Makers ......................................................................... 29

         C. Waiver of Privilege .............................................................................................. 30

         V. CONCLUSION ......................................................................................................... 30

         Before the Court is Defendants Banner Health, Marjorie Bessel, M.D., Julie Nunley, Cindy Helmich, and Lori Davis-Hill's Motion for Summary Judgment (Doc. 218), the Response, and the Reply. Also before the Court is Plaintiff's Motion Pursuant to Federal Rule of Civil Procedure 56(d) (Doc. 243), the Response, and the Reply. For the reasons below, Defendants' motion will be granted in part and denied in part, and Plaintiff's motion will be denied.

         I. SUMMARY JUDGMENT STANDARD

         A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. Summary judgment should be granted if the evidence reveals no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that might affect the outcome of the suit under the governing law, and a factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         It is the moving party's burden to show there are no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon such a showing, however, the burden shifts to the non-moving party, who must then “set forth specific facts showing that there is a genuine issue for trial” without simply resting on the pleadings. Anderson, 477 U.S. at 256. To carry this burden, the nonmoving party must do more than simply show there is “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id. at 587. “A court must view the evidence ‘in the light most favorable to the [non-moving] party.'” Tolan v. Cotton, ___ U.S. ___, 134 S.Ct. 1861, 1866 (2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Id. (quoting Anderson, 477 U.S. at 249).

         II. FACTUAL BACKGROUND

         The following facts are construed in the light most favorable to the plaintiff, the non-moving party.

         A. Starling's First Decade at Banner

         In October 2004, Banner Health (“Banner”) hired Dr. Mark Starling (“Starling”) to serve as the Medical Director of Banner Baywood Heart Hospital. (Doc. 219 at ¶ 1.) He was 56 years old and had previously been a tenured professor of medicine at the University of Michigan. (Id. at ¶ 2; Doc. 210 at ¶ 2.)

         Dr. John Hensing supervised Starling during his time as Medical Director. (Doc. 219 at ¶ 3.) Starling's performance, in Hensing's eyes, “exceed[ed] or frequently exceed[ed]” expectations. (Id. at ¶ 4.) In 2006, Starling was promoted to Chief Medical Officer. (Id. at ¶ 5.)

         Dr. Marjorie Bessel (“Bessel”) became Starling's direct supervisor in 2010. (Id. at ¶ 6.) She was 47. (Id., Ex. B at ¶ 4.) Overall, Starling continued to receive positive performance reviews. (Doc. 219 at ¶ 7.) But in October 2012, Bessel and the Hospital's then-CEO, Laura Robertson, placed Starling on a performance improvement plan, which Robertson emailed to him. (Id., Ex. C at Ex. 2.) Starling was expected to become more involved in clinical aspects at the Hospital; to improve his “communication in delivery and accuracy of information, ” including avoiding “[v]isible signs of exacerbation [sic]” such as throwing his hands up; to delegate more effectively; and to “[a]ctively engage as a senior leader.” (Id.) Robertson says that she delivered the document during a meeting. (Doc. 219, Ex. C at 52:5-8.) Starling claims he never received any sort of performance improvement plan or any similar document in 2012. (Doc. 267, Ex. 2 at ¶ 16.) He admits only that Robertson expressed concern about Starling's outside speaking engagements affecting his obligations to the hospital. (Id. at ¶ 17.) Regardless of whether Starling was aware of the plan, Defendants contend that Starling made “sufficient progress” to end it. (Doc. 219 at ¶ 10.) Robertson also recalls several accusations of bias against Starling. (Doc. 267, Ex. 6 at 207:4-23; 211:19-212:7.)

         Otherwise, Robertson appears to have been quite satisfied with Starling's performance. Robertson says that Starling was, more than once, responsive to the concerns she expressed. (Id. at 109:18-110:4; 134:18-135:8.) On June 5, 2014, Robertson texted Starling, “Thanks so much for your help. I truly appreciate your courageous leadership and doing the right thing! You are a great partner!!” (Id. at 151:23-152:18.) On October 21, 2014, she provided Starling with positive comments at a budget review and, later that day, responded to his grateful text with this message: “You are a great leader and it's a privilege to work with you.” (Id. at 156:22-157:23.) Plaintiffs attach as exhibits seven notes of encouragement and gratitude, most of which were handwritten, from Robertson to Starling. (See Id. at Exs. 12-18.) The dates are sometimes unclear, but Robertson contests the veracity of none. In fact, she acknowledges in her deposition that she found Starling to be a great leader and partner. (Doc. 267, Ex. 6 at 169:6-12.)

         Robertson was not the only one who appreciated Starling's work. Each year, Banner gives certain employees the Guardian Award. Those who best embody Banner's virtues-“wisdom, warmth, strength, integrity and gentleness”-receive the honor. (Doc. 267, Ex. 16.) There is a competitive selection and interview process. Starling was nominated “multiple times” throughout his time at Banner and won the award in November 2014. (Doc. 267, Ex. 2 at ¶ 15.)

         B. Allegations Mount Against Starling

         In March of 2015, Julie Nunley (“Nunley”) became the Hospital's CEO. (Doc. 219 at ¶ 11.) Shortly thereafter, Dr. Joseph Chatham, the Hospital's Chief of Staff, met with Nunley. The parties dispute who approached whom. Chatham accused Starling of being uncollaborative, dictating his own agenda without input, playing favorites with staff members, and sending physicians' cases to peer review selectively. (Id. at ¶ 12.) Starling believes that Chatham was biased against him because of a dispute the two had regarding the (negligent, according to Starling) credentialing of Chatham's son, also a doctor, for a particular procedure. Starling ultimately won that fight, as Banner took his side. (Doc. 267, Ex. 2 at ¶¶ 172-203.)

         For her part, Nunley also claims that she saw Starling “slam his fist down on a table” at a medical staff meeting. (Doc. 219, Ex. D at ¶ 3.) Starling denies this, but he does so only insofar as to deny he slammed his fist at a meeting with the Chief of Anesthesiology, Dr. George Scott Gieszl, Jr. (Doc. 267, Ex. 20 at 10-11.) Starling suggests that this is the only candidate for Nunley's supposed misremembrance.

         Perhaps the fist-slamming accusation stems back to Robertson. Robertson kept notes during her tenure as CEO. On one occasion, she noted that Starling “scream[ed] at Giesle [sic] in the hallway.” (Doc. 267, Ex. 6 at 87:23-88:3.) She says Gieszl heard Starling screaming in the hallway. (Id. at 88:8-12.) Yet Gieszl swears in a declaration that in his ten years of working with Starling, he never “saw him act inappropriately” or “unprofessionally.” (Doc. 267, Ex. 7 at ¶¶ 8-9.) During a ...


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