United States District Court, D. Arizona
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collections bonus had been replaced by a new “Schedule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 ...