United States District Court, D. Arizona
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
...