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Thompson v. Dignity Health

United States District Court, D. Arizona

March 5, 2019

Emmitt Thompson, Plaintiff,
v.
Dignity Health, Defendant.

          ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge

         Plaintiff Emmitt Thompson (“Dr. Thompson”) was a second-year medical resident at Barrow Neurological Institute (“BNI”).[1] BNI did not renew Dr. Thompson's contract for his third year of residency. Dr. Thompson alleges his residency contract was not renewed due to race discrimination. (Doc. 29.) He also alleges BNI breached its Academic Review Policy and defamed him to the California Medical Board and prospective employers. Before the Court is BNI's Motion for Summary Judgment on Dr. Thompson's claims for race discrimination, defamation, and breach of contract, (Doc. 84), as well as BNI's Motion to Exclude Expert Sandra L. Shefrin (Doc. 86). For the foregoing reasons, BNI's Motion for Summary Judgment (Doc. 84) is granted.[2] BNI's Motion to Exclude Expert Sandra L. Shefrin (Doc. 86) is granted in part and denied in part.

         BACKGROUND

         Emmitt Thompson is an African American doctor.[3] (Doc. 29.) Dr. Thompson declared that he applied to the Barrow Adult Neurology Program (“Barrow”) to begin in the 2014-15 academic year. (Doc. 93-1 at 3.) Barrow admitted Dr. Thompson to begin in July 2015, but required Dr. Thompson to complete his first year of residency elsewhere. (Doc. 93-1 at 3.) Dr. Thompson had asked Barrow to consider allowing him to start his first year at Barrow with other members of his class, because he had a documented learning disability that made assimilating written materials a slower process and was concerned about having to catch up with the other residents. (Doc. 93-1 at 3.) Barrow reassured him that he would have time to “get up to speed.” (Doc. 93-1 at 3.) Dr. Thompson was the only Adult Neurology resident of his Barrow residency class that was required to complete his first year at a different institution.[4] (Doc. 93-1 at 3.)

         Dr. Thompson completed his first year of residency in internal medicine at Meharry Medical College (“Meharry”), a historically African American institution in Nashville, Tennessee. (Docs. 93-1 at 3; 85 at 1.) Dr. Thompson declared he completed his first year at Meharry “with a middle of the class ranking, a strong knowledge base, and the department's blessing to leave the program a few days early.” (Doc. 93-1 at 3.) Dr. Richmond Akatuea-Associate Professor of Medicine at Meharry and Program Director of the Internal Medicine Residency-testified that Dr. Thompson “was doing fairly well” at his Meharry residency. (93-1 at 68.) Dr. Akatuea's June 2015 end-of-year evaluation of Dr. Thompson, however, expressed “considerable concern about some aspects of [Dr. Thompson's] professional conduct.” (Doc. 93-1 at 71.) It further stated: “Also noted was that you did not always return to work on the days you were required to. As such your attitude to work was unacceptable and unprofessional.” (Doc. 93-1 at 71.) In addition, Dr. Thompson received more than one disciplinary email from chief residents at Meharry, warning him of a “no call, no show” violation and “a pattern of uncooperative work ethics in this academic year.” (Doc. 85-1 at 99-101).

         In May 2015, Dr. Thompson signed a Postgraduate Training Agreement with BNI (the “Agreement”). (Docs. 93-1 at 3; 85-1 at 104.) The Agreement appointed Dr. Thompson as a second-year resident in the Barrow Adult Neurology program, from July 1, 2015 until June 30, 2016. (Doc. 85-1 at 105.) The Agreement provided: “Resident's re-appointment to the next postgraduate training year shall be by recommendation from the Program Director and shall be contingent upon the Resident's successful completion of the current postgraduate year of education.” (Doc. 85-1 at 105.) In addition, the Agreement stated: “In the event the Resident fails to satisfactorily perform [his] duties and obligations . . . Hospital may terminate this Agreement at any time. The Program Director, in consultation with the Directors of Academic Affairs and Human Resources, shall notify Resident of such action in writing.” (Doc. 85-1 at 114.) If a resident's contract is not renewed, he may appeal the decision in accordance with the Academic Review and Appeals Process Policy (“Academic Review Policy”). (Doc. 85 at 2.) The Academic Review Policy describes the process of appeal: First, the resident must attempt to resolve the issue with his immediate supervisor. If the immediate supervisor is involved in the event or issue, the resident may submit a written statement to his program director about the unresolved issue and the resolution he seeks. If the program director is the immediate supervisor, the resident must submit the statement to the Designated Institutional Official (“DIO”) within five days after meeting with the immediate supervisor. (Doc. 85-1 at 117.) At Barrow, Dr. Thompson had various immediate supervisors, depending on his training block or rotation. Dr. Suraj Muley was the program director and Dr. Jeffrey Sugimoto was the DIO. Dr. Thompson was the only African American in his class of seven, although there were African American residents in the classes above and below him. (Doc. 85 at 10.)

         Dr. Thompson admitted he encountered difficulties during his first months as a resident at Barrow. Dr. Thompson declared his “early difficulties at Barrow can be explained by the difference in program style between Meharry and Barrow.” (Doc. 93-1 at 4.) Unlike everyone else in his class, Dr. Thompson had not spent his first year of residency at Barrow. As a result, Dr. Thompson had to use “mental space” to learn systems and layouts that were specific to Barrow. (Doc. 85-1 at 17.) In addition, Dr. Thompson testified that compared to Meharry, Barrow “had more electives in neurology as well as teaching from senior residents. And there's a neurology program at Barrow that there isn't . . . at Meharry.” (Doc. 85-1 at 60.)

         The Barrow program “is broken down into 13 training blocks or rotations, during which residents shadow and work with attending physicians.” (Doc. 85-1 at 132.) The attending physician evaluates the residents for their performance during each block. Despite some favorable feedback, Dr. Thompson received significant negative evaluations from multiple attending physicians. Below are examples of the negative evaluations of Dr. Thompson's performance from July until December 2015:

• Dr. Kerry Knievel, in evaluating Dr. Thompson's Block 2 rotation, wrote that Dr. Thompson was “[disorganized and [had] a difficult time completing his work. He is unable to keep track of the details about patient history and has trouble identifying sick patients.” (Doc. 85-1 at 136.)
• Dr. David Treiman, in evaluating Dr. Thompson's Block 3 rotation, wrote: “Fund of knowledge weaker than peers. Needs significant improvement. On the other hand, professional appearance is superior to most of his peers.” (Doc. 85-1 at 138.)
• Dr. Joni Clark, in evaluating Dr. Thompson's Block 4 rotation, wrote: “Knowledge base and management, diagnostic skills less than level of training. Can be improved with continued training and reading.” (Doc. 85-1 at 140.)
• Dr. Aimee Borazanci, in evaluating Dr. Thompson's Block 6 rotation, wrote: “[Dr. Thompson] seemed pre-occupied during this rotation. Medical knowledge was lacking. He had difficulty formulating appropriate assessments & plans.” (Doc. 85-1 at 142.)

         On December 17, 2015, Dr. Thompson received written discipline after he failed to report for his on-call shift and was unavailable for three hours. (Doc. 85 at 4.) During deposition, Dr. Thompson admitted this incident occurred but noted his three-hour absence did not endanger patients because there was another resident on call. (Doc. 85-1 at 33- 36.) On December 23, 2015, Dr. Thompson received another written discipline: “Dr. Emmitt Thompson neglected to add patients he had seen on call to the inpatient census, resulting in patients not being followed appropriately. No harm came to the patients. Also was noted that he was not returning calls to the transfer center in a timely fashion.” (Doc. 85-1 at 178.) After that, Dr. Courtney Schusse[5] had a conversation with Dr. Thompson and told him that additional performance problems could lead to termination. (Doc. 85-1 at 39.) On January 28, 2016, Dr. Thompson received written discipline once again. This time, three problems were identified: “1. Did not appropriately enter admission orders for an acute stroke patient; 2. Concern that he did not respond to the RN call regarding a patient in status epilepticus . . . 3. Concerns raised by the neurosurgical service of difficulty communicating with him regarding patient care on several occasions[.]” (Doc. 85-1 at 180.)

         Following this incident, program director Dr. Muley and Dr. Schusse met with Dr. Thompson to inform him that BNI would not be renewing its contract with him for the next academic year. Dr. Thompson appealed the nonrenewal decision to Dr. Sugimoto, stating: “To my understanding this [nonrenewal] decision was made on the basis of 2 human errors and a mistake coupled with the perception of a general sense of lack of urgency and insufficient knowledge on my part.” (Doc. 85-1 at 182.) Dr. Thompson further stated: “I can't dispute that I've made some errors, but I would argue that I've taken steps to prevent similar oversights in the future.” (Doc. 85-1 at 182.) According to Dr. Thompson, he had a hard time adjusting to Barrow and “was finding it hard to be motivated and generally had low energy” from October until December 2015. (Doc. 85-1 at 183.)

         While his appeal was pending, Dr. Thompson continued to experience issues related to his work performance. During this time, Dr. Muley asked attending physicians for additional feedback on Dr. Thompson, because Dr. Muley “wanted perspective from different attendings about him, and to get a more balanced kind of view of his skills.” (Doc. 93-2 at 16.)

• On February 8, 2016, Dr. Holly Shill emailed Dr. Schusse and Dr. Muley with a report of her experience working with Dr. Thompson since January 2016. Dr. Shill described multiple incidents, summarizing: “I worry about his ability to synthesize information and be alert to potentially serious neurological issues. In just about every patient we have seen together, he fails to put the symptoms together to come up with a potential diagnosis. He misses pertinent information in the medical records and often fails to include key items in his own notes.” (Doc. 85-1 at 146- 47.)
• On February 15, 2016, Dr. Kamala Saha emailed Dr. Muley with a description of issues she had while working with Dr. Thompson. She wrote: “I generally feel that he struggles to keep up with his peers in his same year and his overall capabilities as a resident are limited.” (Doc. 85-1 at 198.) She further noted: “He forgets lots of things regarding patients in terms of results, history, etc. . . . I have to double check everything he does and look up all the results myself and all the orders because I simply cannot trust him. He makes errors and tells me that tests were canceled when I already am aware that they were not and the results are back. I cannot count on him to be reliable when it comes to patients.” (Doc. 85-1 at 198.)

         Nevertheless, BNI reconsidered Dr. Thompson's contract nonrenewal decision and instead presented him with a Performance Improvement Plan (“PIP”) on March 22, 2016. (Docs. 85 at 6; 85-1 at 201.) The PIP identified four areas in which Dr. Thompson needed improvement: medical knowledge, patient care, professionalism, and practice-based learning and improvement. (Doc. 85-1 at 201-02.) Dr. Thompson agreed to additional reading assignments and quizzes, as well as closer supervision by Drs. Schusse and Muley. (Doc. 85-1 at 202.) Furthermore, the PIP modified Dr. Thompson's schedule of assignments and left May unset and contingent on his performance. (Doc. 85-1 at 202.) The PIP noted: “Immediate and sustained improvement is required. Failure to improve or sustain improvements will be considered cause for further disciplinary action, up to and including non-renewal of contract or dismissal.” (Doc. 85-1 at 202.)

         After implementation of the PIP, Dr. Thompson continued to receive criticism for his work performance.

• On April 7, 2016, Dr. Erik Ortega wrote: “[Dr. Thompson's] HIP is meandering, tangential and unfocused. His examination is unreliable and does not necessarily focus on the consultative concerns that resulted in his evaluation of the patient. His assessment and plan, perhaps unsurprisingly, is lacking in that there actually may be no true assessment[.]” (Doc. 85-1 at 151.)
• On April 18, 2016, Dr. Saha reported that Dr. Thompson had failed to write a history and physical (“H&P”) for a patient he recently saw. (Doc. 85-1 at 206.)
• On April 28, 2016, Dr. Shafeeq Ladha wrote: “I recently saw a patient in the clinic with [Dr. Thompson] . . . . I found that his history was quite inaccurate and, more importantly, was not directed towards the obvious differential.” (Doc. 85-1 at 149.)
• On May 4, 2016, Dr. Terry Fife wrote: Dr. Thompson “comes off as lacking emotional energy or the ability to muster a sense of urgency when needed. He is trying but it is hard to tell how much. When he is on call and short on time, he doesn't get to review the patient's charts as thoroughly and sometimes forgets what is going on with results.” (Doc. 85-1 at 153.)

         On May 12, 2016, the Clinical Competency Committee-a group of faculty members at Barrow-met to discuss Dr. Thompson's situation.[6] It decided “Dr. Thompson's contract for progression will not be renewed for 2016-2017.” (Doc. 185-1 at 212.) Drs. Muley and Schusse met with and notified Dr. Thompson of the nonrenewal decision on May 31, 2016 and BNI paid him through June 30, 2016-the end of his contract term. (Doc. 85 at 9.)

         Dr. Thompson formally appealed the nonrenewal decision to Dr. Sugimoto on June 9, 2016. In his appeal, Dr. Thompson stated: “If asked what I think has been most relevant to my current situation, I'd have to answer bias.” (Doc. 85-1 at 226.) Dr. Thompson specifically named three attending physicians to support his complaint of bias: Drs. Clark, Knievel, and Saha. Dr. Clark, according to Dr. Thompson, intentionally set him up by asking questions “which were preludes to an opportunity for her to berate” him. (Doc. 85-1 at 226.) Drs. Knievel and Saha “exaggerat[ed] [his] shortcomings while minimizing the same in others.” (Doc. 85-1 at 227.) Dr. Thompson admitted he was “behind [his] peers” when he first met Drs. Knievel and Saha. However, Dr. Thompson stated they continued to “presume” that he did not know what he was doing in later interactions. (Doc. 85-1 at 227.) Dr. Sugimoto denied Dr. Thompson's appeal as untimely. (Doc. 85 at 9.)

         Dr. Thompson subsequently left Barrow and applied for a California medical license. In connection with its review of the application, the California Medical Board asked BNI to fill out a Certification of Completion of ACGME/RCPSC Postgraduate Training (“Certificate”). (Doc. 85 at 9.) On the Certificate, Dr. Muley marked the box indicating that Dr. Thompson was “terminated, dismissed or expelled” from Barrow, as well as the box indicating Dr. Thompson was placed on probation as a resident. (Doc. 85-1 at 231.)

         Dr. Thompson sued BNI, alleging race discrimination under Title VII and § 1981, breach of contract, and defamation. BNI moved for summary judgment on all claims. (Doc. 84.)

         LEGAL ...


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