Ramirez v. Kingman Hospital Inc.

          ORDER

          Bridget S. Bade United States Magistrate Judge.

         Defendant Kingman Hospital, Inc., d/b/a Kingman Regional Medical Center (“KRMC”) moves for summary judgment on the following claims in the First Amended Complaint (“FAC”): (1) discriminatory termination in violation of Title VII-Religion (Count Two); (2) discriminatory termination in violation of the ADEA (Count Three); and (3) retaliation in violation of Title VII and the ADEA (Count Five).^[1] The motion is fully briefed. (Docs. 67, 74.) For the reasons below, the Court grants the motion, in part, and denies it, in part.

         I. Factual Background

         KRMC is a non-profit regional trauma center based in Kingman, Arizona. (DSOF ¶ 1.)^[2] Plaintiff is an ear, nose and throat physician and surgeon (“ENT”). (PSSOF ¶ 1.) On November 1, 2008, Plaintiff entered into a three-year employment contract with KRMC (the “first agreement”). (DSOF ¶ 2.) Plaintiff's base salary was $434, 693 and was later increased to $550, 000, with a bonus based on revenue generated from physician-related services. (PSSOF ¶¶ 5-6; Ramirez Decl., Ex. 1.)^[3]

         During September 2012, Plaintiff and KRMC began discussing a new employment contract. (PSSOF ¶ 48.) On July 31, 2013, Plaintiff entered into a new three-year contract (“Agreement”) with KRMC. (DSOF ¶ 3; PSSOF ¶ 50.) Plaintiff's base salary remained $550, 000. (DSOF ¶ 3, PSSOF ¶¶ 57-60.) Schedule A of the Agreement provided for a potential bonus based on Plaintiff's work relative value units (“RVUs”). (DSOF ¶ 3; PSSOF ¶¶ 70-72.) Schedule A of the Agreement also provided that if Plaintiff's total RVUs in any given fiscal year were less than the 7, 500 RVUs required to cover Plaintiff's base salary, his base salary would “be reduced by an amount proportionate to the deficit in work RVUs required to cover” his base salary and the RVUs produced. (DSOF ¶ 3, DSOF, Ex. 21; PCSOF ¶ 3.)

         Plaintiff asserts that when he signed the Agreement he thought that his bonus remained a “collections bonus” that was based on revenues from all physician-related services, as it had been in Schedule A of the first agreement. (PSSOF ¶ 60.) Plaintiff alleges that at the time he signed the Agreement, Tim Blanchard, KRMC's CFO, did not tell him that the first agreement's “Schedule A” collections bonus had been replaced by a new “Schedule A” that was attached only to the signed original Agreement that Blanchard kept for his file. (Id. at ¶ 62.) Plaintiff alleges that he would not have signed the Agreement if he had been told about the new Schedule A. (Id. at ¶¶ 67-69.) Plaintiff asserts that Schedule A was not attached to the signed original of the Agreement that he was provided. (PSSOF ¶ 62.) Plaintiff asserts that he did not notice that Schedule A was missing from his copy of the Agreement because Blanchard had not mentioned the change to the bonus structure during their negotiations. (Id. at ¶¶ 61-75). During his deposition, Blanchard stated that he does “not recall” telling Plaintiff about the new Schedule A. (Id. at ¶ 64; Blanchard Depo. at 25.)^[4]

         Plaintiff alleges that KRMC is a “Mormon-run” hospital that is controlled by CEO Brian Turney, a Mormon.^[5] (PSSOF ¶¶ 170-94.) Plaintiff alleges that his immediate supervisor, Stacy McDaniel (now Stacy Merritt), also had “deep ties to the Kingman area Mormon Church and community.” (Id. at ¶¶ 172-74.) Plaintiff alleges that Turney and Merritt cultivated a “Mormon Mafia” culture and power structure that favored Mormons over non-Mormons. (Id. at ¶¶ 175-84.) Plaintiff asserts that he is Christian and that he regularly complained to Merritt about the Mormon culture and power structure. (Id. at ¶¶ 183-84.)

         Defendant states that in January 2014, Blanchard and Merritt, who was then Director of Surgical Specialties, decided to terminate Plaintiff's employment based on Plaintiff's poor job performance and bad attitude. (DSOF ¶ 4.) Blanchard and Merritt informed Turney of their decision to terminate Plaintiff's employment, and Turney supported that decision. (DSOF ¶ 5; PSSOF ¶¶ 99-109.) On January 31, 2014, KRMC terminated Plaintiff's employment pursuant to the “without cause” clause of the Agreement. (DSOF ¶ 6.) Plaintiff was the only physician terminated for “performance reasons” between January 1, 2013 and December 31, 2014. (PSSOF ¶ 117; Turney Depo. at 112.)

         Plaintiff alleges that he was “blindsided” by his termination because he had not been warned, disciplined, or informed that any serious issues related to performance or other issues might put his job at risk. (PSSOF ¶¶ 17, 90, 108; Turney Depo. at 102, 105, 114, 162-63; Blanchard Depo. at 33-35, 42, 64-65; Merritt Depo. at 31-22; but see Merritt Depo. at 37.) Plaintiff asserts that Defendant has a policy of documenting disciplinary or important meetings with physicians. (PSSOF ¶ 18; Turney Depo. at 104-05; Blanchard Depo. at 34; but see Merritt Depo. at 32-33.) Turney testified the he deferred to KRMC's human resources officer on the issue of KRMC's policy, but that his “recollection of the policy” was that anything “disciplinary in nature” “should be documented and kept on file.” (Turney Depo. at 104.)

         Turney stated that he had discussions with Plaintiff about his productivity, but he was not aware of any written warning that had been issued to Plaintiff. (Id. at 105.) Blanchard testified that KRMC had a policy of documenting conversations with doctors about “employment problems.” (Blanchard Depo. at 34.) Blanchard testified that he talked to Plaintiff about his RVUs and told Plaintiff that his productivity needed to increase to match his compensation, but Blanchard stated that he did not tell Plaintiff that there would be any “consequences” or that Plaintiff “was subject to termination if he did not improve his RVUs.” (Blanchard Depo. at 36, 63-65.) Blanchard stated that he did not document his meetings with Plaintiff. (Id. at 34, 63-64.) Blanchard stated that, other than Plaintiff's productivity, he did not discuss any issues with Plaintiff before his termination. (Id. at 65.) Merritt testified that she was unaware of a KRMC policy that required documentation of meetings with physicians regarding performance or disciplinary matters. (Merritt Depo. at 33.)

         Plaintiff, who was 60 years old in October 2013, alleges that KRMC hired Dr. Bernadette Braze, a much younger physician, to replace him. (PSSOF ¶¶ 1, 77-85.) Dr. Braze was between 42 and 45 years old when she was hired. (DSOF ¶ 85, PSSOF, Ex. G.) Dr. Braze began working at KRMC in December 2013. (Ramirez Decl. ¶ 52.) Plaintiff alleges that KRMC stated that Dr. Braze was hired to help with his clinical patient workload, but she did not help and instead used “his office equipment and staff and otherwise ignored him.” (Id.) During proceedings before the EEOC, KRMC initially stated that Dr. Braze was hired to replace Plaintiff. (PSSOF ¶¶ 81, 83; PSSOF, EX. G.) In a subsequent letter to the EEOC, KRMC stated that because Plaintiff was not terminated until 2014 (effective March 31, 2014), Dr. Braze, who was hired in 2013, was not hired to replace him. (PSSOF, Ex. H.) KRMC states that it has not hired an ENT doctor to replace Plaintiff. (Id.) As set forth below, Defendant provides several reasons for terminating Plaintiff, which the parties dispute. (Doc. 56 at 2.)

         A. Defendant's Stated Reasons for Terminating Plaintiff's Employment

         1. Plaintiff's Productivity

         Defendant asserts that in 2013, based on a “pool of data of similarly situated ENT doctors in similar practices from the Medical Group Management Association (MGMA), ” Blanchard discovered that Plaintiff generated less revenue than most doctors in the pool. (DSOF ¶¶ 9, 10.) Based on a review of KRMC's physician's RVUs, Blanchard discovered that Plaintiff's productivity fell beneath his compensation level. (DSOF ¶ 8.) Plaintiff alleges that Blanchard had no reason to scrutinize his productivity and had not done so in the past. (PSSOF ¶¶ 20-22.) Plaintiff asserts that Blanchard did not tell him that he was compiling this data to compare it to Plaintiff's RVU numbers and salary. (PSSOF ¶¶ 32-37, 42-47.)

         Defendant asserts that starting in late 2012 Blanchard and Plaintiff “met multiple times to discuss his productivity.” (DSOF ¶ 11.) In his deposition, Plaintiff admits that during two meetings in late 2013 Blanchard informed him that his salary needed to be reduced, but Plaintiff refused to accept a reduction in his pay. (DSOF ¶ 12; Ramirez Depo. at 277-78.)^[6] Blanchard testified that he talked to Plaintiff about his RVUs and told Plaintiff that his productivity needed to increase to match his compensation, but Blanchard did not tell Plaintiff that there would be any “consequences” or that Plaintiff “was subject to termination if he did not improve his RVUs.” (Blanchard Depo. at 36, 63-65.)

         2. Plaintiff's Use of Operating Room Block Time

         Defendant asserts that in December 2013 it learned that more than twenty percent of the time Plaintiff was starting late in his morning operating room (“OR”) block time. (DSOF ¶ 15; DSOF, Exs. 23, 29.) KRMC revoked Ramirez's morning block time. (DSOF ¶ 15.) Plaintiff denies this assertion and asserts that KRMC falsely stated that he referred to himself as a “chronic late starter.” (PSOF ¶ 15; PSSOF ¶ 168.) Plaintiff, however, does not offer any evidence disputing that he started late in his OR block time.

         3. Plaintiff's Resistance to KRMC's Implementation of Electronic Medical Records

         By January 1, 2014, KRMC was required to meet a federal mandate that required medical institutions and physicians to use electronic medical records (“EMR”) or incur financial penalties. (DSOF ¶ 16; PCSOF ¶ 16.) KRMC implemented an EMR system called NextGEN. (DSOF ¶ 17; PCSOF ¶ 17.) Defendant asserts that it terminated Plaintiff because of his resistance to KRMC's implementation of EMR. (Doc. 56 at 2; Turney Depo. at 146; Merritt Depo. at 37-39; Ex. I.) In a June 2012 email to Merritt, Plaintiff stated that it was after 6:00 p.m., but he still had several hours of charting to complete. (DOSF, Ex. 8.) Plaintiff stated that “my contract needs to be renegotiated considering I will be working 12 hours continuously.” (Id.; see Ramirez Depo. at 223-25 (agreeing that physicians should be paid for time spent using NextGEN).)

         Plaintiff admits that he was critical of NextGEN based on his belief that it was inefficient. (PSSOF ¶¶ 127, 130-36.) In his deposition, Turney testified that NextGEN was difficult to implement and to use and negatively impacted physicians' productivity. (Turney Depo. at 146, 149.) KRMC approved Plaintiff's use of Dragon Medical, a scribe and voice-recognition software and provided him with a home computer to assist with implementation of NextGEN. (DSOF ¶ 19; PCSOF ¶ 19.) Other physicians reported difficulty using NextGEN. (Turney Depo. at 146; Merritt Depo. at 38 (stating that she thought the “majority of doctors” did not like using EMR).) KRMC permitted physicians to use a hybrid system of NextGEN and paper charts. (Turney Depo. at 146-47; Ramirez Decl. ¶ 68.) Plaintiff asserts that he did not think that the use of NextGEN was mandatory based on KRMC's approval of a hybrid EMR and paper chart system that it permitted Plaintiff and other physicians to use. (PCSOF ¶¶ 17; PSSOF ¶¶ 119-38.)

         Defendant asserts that in an email to the Chief Medical Officer, Plaintiff stated that he would not use NextGEN. (DSOF ¶ 20.) Plaintiff disputes that assertion. (PCSOF ¶ 20; DSOF, Ex. 8 (August 31, 2012 email).) However, in an August 31, 2012 email to Merritt and several other physicians, Plaintiff wrote that NextGEN “ha[s] to go!” (DSOF, Ex. 8.) Plaintiff described the inefficiencies of using NextGEN and wrote that he would “NOT WORK ON NEXTGEN EVER AGAIN.” (Id.) Later in 2012, Plaintiff and other physicians went to Tucson to observe the Arizona Community Surgeons use of the NextGEN system. (PSSOF ¶¶ 127-28.) In a November 27, 2012 email, Plaintiff suggested to Turney that KRMC purchase the newer version of NextGEN that he had observed in Tucson. (PSSOF ¶¶ 128-27; Turney Depo. at 150-51, 154.)

         In a May 2013 email, Plaintiff stated that NextGEN was inefficient and suggested that KRMC bring in Gabriel Choza, “a proven leader at Tucson Surgical, ” to help them optimize NextGEN, which Plaintiff stated was created for primary care doctors, not for surgeons. (DSOF, Ex. 8.) In response, Dr. Jeffrey Lynn stated that he appreciated Plaintiff's perspective, but that NextGEN was approved by the “highest levels” and that KRMC needed a solution that was good for the aggregate. (Id.) He noted that some physicians had refused to use NextGEN but stated “that will not continue.” (Id.)

         Defendant asserts that Plaintiff's use of the “hybrid system” and his refusal to use NexGen, and his attitude about using NextGEN, were among the reasons for terminating Plaintiff. (Turney Depo. at 154; Blanchard Depo. at 68-69; Merritt Depo. at 39.) At the time of Plaintiff's termination in January 2014, other KRMC physicians were still using the hybrid system and as of 2018 there was not “100 percent” usage of NextGEN. (PSSOF ¶ 136-36; Kjelgaard Depo. at ¶¶ 59-60, 142; Merritt Depo. at 39.)

         4. Plaintiff's Use of Tylenol with Codeine for Pediatric Patients

         Defendant stated that another reason for Plaintiff's termination was his refusal to stop prescribing Tylenol with Codeine after the June 2013 death of pediatric patient, M.G., following a tonsillectomy that Plaintiff performed. (DSOF ¶ 22; PSSOF ¶¶ 150-67.) On May 5, 2014, M.G.'s parents and his estate sued KRMC and its physicians, including Plaintiff, for wrongful death and medical negligence (the “M.G. Lawsuit”). (DSOF ¶ 23; PCSOF ¶ 23.) It was alleged that M.G.'s death resulted, in part, from Plaintiff's decision to prescribe Tylenol with Codeine to him after his surgery. (DSOF ¶ 23.)

         Plaintiff states that, “as was his usual practice, ” he had prescribed Tylenol 3 with codeine for pain. (PSSOF ¶ 152.) The use of Tylenol with Codeine was contrary to the FDA's black box warning in effect at the time, which warned against administering it to pediatric patients post-surgery (“Box Warning”). (DSOF ¶ 24, PCSOF ¶ 24.) At the time of M.G.'s death, Plaintiff did not know about the Box Warning, which the FDA sends out by mail because he did not open his mail. (DSOF ¶ 26; PSSOF ¶ 157; Ramirez Decl. ¶ 87; Ramirez Depo. at 143-44.)

         Plaintiff admits he became aware of the Box Warning after M.G. died. (DSOF ¶ 26; PCSOF ¶ 26; Ramirez Depo. at 143-45, 265-66.) During his deposition, Plaintiff testified that after M.G.'s death, he prescribed Tylenol with Codeine “a few times” but after he read the Box Warning he started prescribing Lortab instead. (Ramirez Depo. at 144, 147-48.) Plaintiff later explained that he had prescribed Tylenol with Codeine for twenty-five years without a problem and he thinks that after M.G.'s death he prescribed Tylenol with Codeine to a “handful of patients” and then switched to Lortab “eventually when [he] read the Black Box Warning.” (Id. at 147-48.)

         Defendant asserts that Plaintiff's medical assistant (“MA”), Melissa Kjelgaard, who was responsible for calling in prescriptions for surgery patients, testified during her deposition that Plaintiff continued to prescribe Tylenol with Codeine to pediatric patients until his termination from KRMC in 2014. (DSOF ¶ 28; Kjelgaard Depo. at 89, 90, 102-03.) Plaintiff disagrees with this characterization of her testimony. (PCSOF ¶ 28.) However, the record reflects that Kjelgaard testified that she called in the prescriptions for M.G. (Kjelgaard Depo. at 89, 90.) She also testified that “after M.G., ” Plaintiff “usually stuck with Tylenol with Codeine or Lortab . . . until he left.” (Id. at 102-03.)

         Defendant asserts that on December 20, 2013, KRMC asked Plaintiff to provide his standard post-op orders for pediatric patients and that, in response, Plaintiff confirmed that he “used Tylenol with Codeine for moderate pain” in his pediatric post-op orders. (DSOF ¶ 29; DSOF, Exs. 28, 30.) Plaintiff disputes this assertion and states that the referenced email, DSOF, Ex. 28, does not support it. (DSOF ¶ 29.) However, in response to a January 3, 2014 email that asked Plaintiff to indicate his pediatric post-op procedure, Plaintiff stated that he used “Tylenol with Codeine for moderate pain.” (DSOF, Ex. 28.)

         Defendant asserts that Blanchard's notes from Plaintiff's January 31, 2014 termination meeting reflect that, at that meeting, Plaintiff “stated he would continue to prescribe [Tylenol with Codeine] to children.” (DSOF ¶ 30; DSOF, Ex. 32.) Plaintiff denies this assertion and the “authenticity” of Blanchard's purported notes. (DSOF ¶ 30.) During his deposition, Plaintiff stated that he did not recall telling anyone that he would continue prescribing Tylenol with Codeine for pediatric patients. (DSOF ¶ 31; PCSOF ¶ 31; Ramirez Depo. at 144-45.)

         5. Plaintiff's Failure to Respond to ER while On-Call

         KRMC is subject to the Emergency Medical Treatment and Active Labor Act (“EMTALA”), which creates liability if a physician fails or declines to respond to a call from a hospital's emergency department. (Doc. 56 at 5.) On December 4, 2013, Plaintiff was listed as the ENT on-call for the emergency room (“ER”). When the ER received a patient who needed ENT services, it called Plaintiff repeatedly without response. (DSOF ¶ 37; PCSOF ¶ 37.) Plaintiff eventually notified KRMC that he was in New York. (Id.) Plaintiff does not dispute he was listed on-call that day, or that he was unavailable to take the call. (Id.)

         Rather, Plaintiff asserts that in November 2013 he made plans to attend a medical conference in New York City and that, a week before the conference, he told KRMC's on-call scheduler, Suzie Frisbie, not to schedule him for on-call duty during the dates of the conference. (PSSOF ¶ 142.) Plaintiff asserts that Frisbie mistakenly put him on the on-call schedule. (Id. at 143; Kjelgaard Depo. at 86-89; Ramirez Decl. ¶ 78; Ramirez Decl., Ex. 4.) Consistent with that assertion, during his deposition, Plaintiff asserted that staff failed to notify the ER that he was unavailable on the assigned on-call date. (Ramirez Depo. at 362-63.) In a November 2, 2014 letter, Frisbie stated that on December 2, 2013, Plaintiff informed staff members that his airline itinerary for his trip to New York had changed and asked them to reschedule the afternoon of December 4, 2013. (Ramirez Decl., Ex. 4.)

         B. The EEOC Charge

         On September 21, 2014, Plaintiff filed with the Equal Employment Opportunity Commission (“EEOC”) a charge of discrimination alleging discrimination based on religion, age, and national origin (the “EEOC Charge”). (PSSOF, Ex. J.)

         C. The M.G. Lawsuit Settlement and the ...