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Lurie v. Mid-Atlantic Permanente Medical Group

August 9, 2010


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court



The case concerns an employment dispute between plaintiff Dr. Dean Kevin Lurie, a surgeon, and his former employer defendant Mid-Atlantic Permanente Medical Group. After many years of working for defendant, plaintiff was terminated for allegedly falsifying his time sheets and his history of disciplinary problems, reasons plaintiff claims are a mere pretext for disposing of an old employee who challenged unprofessional conduct at his workplace. In addition to a number of common law claims for breach of contract, tortious interference, and wrongful discharge, plaintiff alleges violations of the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Defendant filed a counterclaim seeking recovery for breach of contract, fraud, negligent misrepresentation, and unjust enrichment. Currently, before the Court are defendant's motion [78] to strike plaintiff's statement of material fact, defendant's motion [68] for summary judgment and plaintiff's motion [69] for summary judgment on the counterclaim. Based on the following considerations, the Court will DENY defendant's motion to strike and GRANT defendant's motion for summary judgment. The Court does not reach plaintiff's motion for summary judgment, because the Court lacks jurisdiction over defendant's counterclaim. Therefore, the Court will DISMISS defendant's counterclaim on jurisdictional grounds.

II.Factual Background

Plaintiff is a vascular surgeon residing in the District of Columbia. (Pl.'s Verified Compl. [72-3] ¶ 5.) Defendant is a professional corporation with its principal place of business in Maryland that employs physicians who provide medical services to members of the Kaiser Foundation Health Plan of the Mid-Atlantic States. (Id. ¶ 6; Cahill Aff. [68-3] ¶ 3.) Plaintiff's employment with defendant began in 1998. In addition to substantive terms of employment, plaintiff's job offer letter included a provision mandating that plaintiff abide by defendant's "policies, rules and regulations." (Pl.'s Ex. 2 [69-4] at 2.) Plaintiff signed the letter and commenced working for defendant as a surgeon in the District of Columbia and its Maryland suburbs. (Id. at 3; Cahill Aff. [68-3] ¶ 5.)

As part of his duties with defendant, plaintiff was assigned to treat patients at various local hospitals.*fn1 (Lurie Dep. [68-4] at 67:13.) While working at the Washington Hospital Center (WHC), plaintiff came into conflict with his colleagues over concerns about safety and quality of care. (Id. at 107:18--108:13, 115:13--116:21.) When he raised his concerns with his superiors, he received some hostile responses. (Def.'s Ex. 3 [68-5] at 2--3; Def.'s Ex. 5 [68-7] at 2.)

Citing plaintiff's troubled relations with the surgical residents, the head of surgery requested and obtained plaintiff's reassignment in 2001. (Def.'s Ex. 4 [68-6] at 2; Lurie Dep. [68-4] at 83:7--11.) Official admonitions from defendant followed, and when plaintiff was reassigned to WHC two years later, the head of surgery complained about his behavior once again. (Def.'s Ex. 5 [68-7] at 2; Lurie Dep. [68-4] at 102:1--13; Def.'s Ex. 6 [68-8] at 3.) In late 2003, plaintiff was suspended with pay and an investigation was conducted of his conduct. (Lurie Dep. [68-4] 152:11--153:12.)

Not long after this last round of disciplinary action, plaintiff was transferred to defendant's Largo, Maryland medical center. (Lurie Dep. [68-4] at 118:15--120:10.) When plaintiff first arrived, he felt pressured to see many double-booked patients. (Id. at 300:7--10.) Plaintiff's colleagues told him that, at the Largo Center, these extra patients were handled by establishing evening clinics or ghost clinics. (Id. at 300:10--15.) The phrase "ghost clinic" is defendant's terminology for a billing method utilized by certain physicians employed by defendant. (Mem. in Supp. of Def.'s Mot. for Summ. J. [68-2] at 5.) Physicians who had many sessions double booked during the day would include hand-written addendums with their time sheets that specified hours worked during the evening. (Lurie Dep. [68-4] at 284:16--286:12, 300:4--18, 301:15--302:6.) Physicians could thereby be compensated for the extra patients seen during regular hours. (Id. at 302:4--12.) In reality, no patients were actually treated in the evening, thus the expression, ghost clinic. (Id. at 289:5--290:8.)

Defendant was not alone in making use of ghost clinics. Dr. Cohen, an orthopedist, and Dr. McCanty, a urologist, billed for double-books in the same manner as plaintiff. (Cohen Dep. [72--9] at 18:12--19:14; McCanty Dep. [72-14] at 25:5--21.) Additionally, Dr. Krolik, a surgeon who worked with plaintiff, established ghost clinics on three occasions in 2004. (Cahill Aff. [68-3] ¶ 14.) None of these physicians were subject to disciplinary action as a result of their billing practices. (Pl.'s Opp'n [72] at 16.) Although plaintiff followed the example and advice of his fellow doctors in creating ghost clinics, (Lurie Dep. [68-4] at 300:4--301:8, 302:19--303:11), his manager gave a negative response when he asked about receiving extra compensation for days when doctors were overbooked. (Manning Dep. [68-27] at 99:2--102:10.)

Eventually, plaintiff's use of ghost clinics came to the attention of a compliance officer named Ann Cahill. (Cahill Aff. [68-3] ¶¶ 2, 12.) She launched an investigation of plaintiff's time sheets and discovered that he was reporting more hours than the other doctors on defendant's payroll. (Id. ¶ 12.) Indeed, Cahill found that plaintiff was the only physician in the medical group to have created ghost clinics in the preceding six month period. (See id. at 15.) Based on Cahill's finding as well as plaintiff's poor discipline history, defendant terminated plaintiff during an October 2005 meeting at its Maryland headquarters. (Id.) At that time, plaintiff was forty-eight years old. (Compl. [1] ¶ 24.)

While at the Largo facility, defendant had arranged to conduct a clinical trial of a new surgical device. (See Lurie Dep. [74-1] at 240:2--12.) To govern the clinical trial, plaintiff, defendant, and the device company (Graftcath) signed a document outlining the terms of their relationship and naming plaintiff principal investigator. (Def.'s Ex. 18. [70] at 2.) When plaintiff was terminated, he was unable to continue serving as principal investigator. (Pl.'s Verified Compl. [72-3] ¶ 38.)

After his removal, plaintiff opened a private medical practice. (Pl.'s Verified Compl. [72-3] ¶ 19.) Though he applied for membership in defendant's network of outside providers, he was rejected. (Id.) Efforts to develop his new practice have been hindered by his reduced access to Kaiser Health Group patients, (see Lurie Dep. [68-4] at 354:19--355:11), some of whom may have been dissuaded by defendant from seeking treatment with plaintiff despite his status as their preferred surgeon. (See Pl.'s Ex. 3 [72-5] ¶ 5; Pl.'s Ex. 4 [72-6] ¶ 5.)

III.Defendant's Motion to Strike

Local rule 7(h) requires that a party opposing summary judgment include a "separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue to be litigated, which shall include references to the parts of the record relied on to support the statement." LCvR 7(h). The purpose of the rule is to aid courts in deciding motions for summary judgment by refining the record to focus on disputed factual issues. Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). In interpreting the rule, the Circuit Court has prescribed caution, warning of the drastic consequences of striking a party's statement of fact. Id. at 517.The remedy should be reserved for those cases involving "egregious conduct." Id.

Defendant contends that plaintiff's statement of material fact violates local rule 7(h) and should be stricken. In support of its motion, defendant argues that plaintiff's statement is overlong at 117 pages, is suffused with argument, and fails to squarely address defendant's statements of fact. (Def.'s Mem. in Supp. of Mot. to Strike [78-1] at 2, 4, 11.)

Although plaintiff's statement needlessly extends to 117 pages, it cites to the record and rightfully does not contain legal argument. (See, e.g., id. ¶¶ 14, 21, 22, 87, 123.) For example, defendant's statement of material fact affirms, "The letter was sharply critical of WHC's surgery department chairman, John Kirkpatrick in particular." (Def.'s Local Rule 7(h) Statement [68-28]

¶ 14.) In his own statement, plaintiff denies this assertion then launches into a four page description of hospital policy on official complaints and the Code of Ethics of the American Medical Association. (Pl.'s Statement [72-1] ¶ 14.)

While the plaintiff's statement is inappropriately long and evasive, the Court cannot say that a statement of fact which otherwise comports with local rule 7(h) by citing to the record, separately responding to each of defendant's statements, and refraining from legal argument is egregious and ought to be stricken. Compare Chambliss v. Nat'l R.R. Passenger Corp., No. 05-2490, 2007 WL 581900, at *2 (D.D.C. 2007) (granting a motion to strike where plaintiff's statement did not properly cite the record, interspersed legal argument, and did not correspond to paragraphs in defendant's statement). Accordingly, defendant's motion [78] to strike plaintiff's statement [72-1] is denied.

IV.Defendant's Motion for Summary Judgment

A.Summary Judgment Standard

Generally, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). A genuine issue of material fact exists if the evidence, when viewed in a light most favorable to the non-moving party, "is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e); see Celotex Corp., 477 U.S. at 324. At the summary judgment stage, a judge may not make credibility determinations, as that is the function of a jury. George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir.2005).


The Age Discrimination in Employment Act (ADEA) forbids an employer from firing an employee on the basis of his age. 29 U.S.C. § 623(a)(1) (2006). The Circuit Court has clearly articulated the standard to be used in evaluating motions for summary judgment in employment discrimination disputes:

[I]n considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?

Brady v. Office of the Sergeant of Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507--08, 511 (1993), and U.S. Postal Serv. Bd. of Governors v. Aiken, 460 U.S. 711, 714--716 (1983)).*fn2

Subsequent to Brady, the Supreme Court further focused the ADEA standard. It held, "A plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2352 (2009). Put differently, it is not enough that age was one motivating factor in an adverse employment action; rather, it must be the case that the adverse action would not have occurred in the absence of age as a consideration. See id. at 2350.

Therefore, the Court must decide whether sufficient evidence exists for a reasonable juror to find that defendant's proffered reasons for terminating plaintiff mask discriminatory intent that rendered age the but-for cause of plaintiff's termination. Evidence of pretext may include variant treatment of similarly situated employees, discriminatory statements by decision makers, and irregularities in the stated reasons for the adverse employment decision. Brady, 520 F.3d at 495 & n.3. However, discrimination will not be inferred from the fact that defendant's reasons prove unfounded so long as they are held reasonably and in good faith. Brady, 520 F.3d at 495. Similarly, an inference of discrimination should not be drawn from disparate treatment of comparable employees unless "all of the relevant aspects of [a plaintiff's] employment situation [are] 'nearly identical'" to those of the comparator. Neuren v. Adduci, Mastriani, Meeks, & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995).

In the instant case, defendant asserts that plaintiff was fired for falsifying his time sheets and for his long history of disciplinary problems. (Mem. in Supp. [68-2] at 5.) In order to demonstrate that defendant's stated reasons were only a pretext for age discrimination, plaintiff pursues roughly five distinct lines of argument: (1) plaintiff was replaced by a less qualified, younger physician; (2) plaintiff completed his time sheets consistent with company practice and was the only physician disciplined for so doing; (3) plaintiff's disciplinary history was undeserved and a contrived, post hoc justification for his termination; (4) defendant's managers were aware that the defendant stood to reap financial benefits from terminating older physicians like plaintiff; and (5) defendant's managers made depreciatory remarks about plaintiff's age. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. [72] at 13--14, 16--18.)

1.Plaintiff was not "replaced" by a younger doctor

Plaintiff claims that Dr. Aryavand was hired as his more youthful but less meritorious replacement. Specifically, plaintiff alleges that Dr. Aryavand was offered a job only one day before defendant began the investigation which led to plaintiff's termination. (See Pl.'s Ex. 37 [69-39] at 2; Cahill Aff. [68-3] ¶ 18.) Dr. Aryavand was thirty-eight at the time he was hired while plaintiff was forty-eight at the time he was fired. (Aryavand Dep. [72-7] at 22:5--8; Compl. [1] ¶ 24.) Both plaintiff and Dr. Aryavand were vascular surgeons. (Pl.'s Verified Compl. [72-3] ¶ 12; Aryavand Dep. [72-7] at 14:9--12.)

However, plaintiff's evidence provides little basis for a jury to infer that Dr. Aryavand was hired as plaintiff's replacement, much less that plaintiff suffered discrimination thereby. After Dr. Aryavand was hired, he and plaintiff worked at different facilities; whereas plaintiff was employed at defendant's Largo, Maryland center, Dr. Aryavand worked for defendant in Kensington, Maryland and in Washington DC. (Lurie Dep. [68-4] at 120:3--10; Aryavand Dep. [72-7] at 22:11--23:16, 46:13--16.) Furthermore, Dr. Aryavand possessed qualifications that plaintiff lacked; he was a fellowship-trained vascular surgeon while plaintiff did not have such training. (Aryavand Dep. [72-7] at 12:17--21; Lurie Dep. [68-4] at 14:14--18.) Finally, in regards to the timing of personnel decisions, the alleged connection between defendant's offer of employment to Dr. Aryavand and its decision to investigate plaintiff is terribly attenuated. Other than pointing out the conjunction, plaintiff furnishes no evidence from which a reasonable juror could find that the timing of defendant's actions was anything more than a coincidence.

2.Defendant acted in good faith in terminating plaintiff for his timesheet practices

Plaintiff alleges that his timesheet practices were in accord with defendant's policies and that he alone was punished for the common practice of creating so-called ghost clinics. In support of his contentions, plaintiff claims that a document obtained from defendant entitled "MAPMG Pay Practices, July 2005" [72-34] verifies that defendant sanctioned the use of ghost clinics. The document, however, cannot be fairly read to support plaintiff's position; nothing indicates that physicians could be paid for multiple double-books during the day by charging for dummy patients treated in the evening. (See Pl.'s Ex. 32 [72-34].) For instance, where the report refers to payments for "extra sessions," it appears to be indicating medical work actually performed after-hours such as "urgent cases in late afternoon or evening," not services for fictitious evening patients. (Id. at 2.) In sum, plaintiff's conclusory characterization of this document would not permit a jury to find that ghost clinics were authorized by defendant.

Next, plaintiff argues that establishing ghost clinics was a common practice in which defendant's managers acquiesced. After arriving at defendant's Largo, Maryland medical center, plaintiff's colleagues told him that these extra patients were handled by establishing evening clinics (ghost clinics). (Id. at 300:10--15.) Despite the reassurances of his fellow surgeons, plaintiff remained hesitant and prompted the head nurse Sharon Stewart to seek authorization from her manager Ms. Williams who then consulted her manager Mr. Labash. (Id. at 301:2--11.) Afterwards, Ms. Lawrence informed plaintiff that her managers had given instructions to operate ghost clinics. (Id. at 301:12--15.) Note however, that as a surgeon, plaintiff's immediate supervisors were Dr. Manning and Dr. Schwartz. (Id. at 40:1--4, 304:6--10.) Though neither Dr. Manning nor Dr. Schwartz ever expressly authorized the use of ghost clinics, plaintiff believed that they tacitly endorsed the practice. (See id. at 303:18--306:6). However, neither Dr. Manning nor Dr. Schwartz, plaintiff's immediate supervisors, ever expressly authorized the use of ghost clinics. (See id. at 303:18--306:6).

While a jury could infer that if plaintiff was not violating company policy, that defendant's stated reasons for terminating plaintiff were pretextual, the record does not support that conclusion. The evidence that defendant approved of the use of ghost clinics addresses the perception of plaintiff and his colleagues, rather than the understanding of his supervisors and the managers involved in his termination. See George v. Leavitt,407 F.3d 405, 415 (D.C. Cir. 2005)(stating that a defendant may prevail on summary judgment if there is no genuine issue as to whether the manager making the termination decision honestly and reasonably believed in defendant's reasons).

There is evidence that relevant managers did not share plaintiff's belief about the acceptability of ghost clinics. For example, when plaintiff asked his supervisor about receiving additional payment for multiple double books, the matter was taken to a higher manager who expressly rejected the idea. (Manning Dep. [68-27] at 99:2--100:5.) Whereas plaintiff's evidence goes to his belief in the propriety of ghost clinics and his understanding that his supervisors' acquiesced in the practice, the supervisors themselves rejected it.

More importantly, the managers participating in the investigation preceding defendant's termination, Traci Holsteen and Ann Cahill, did not accept the legitimacy of ghost clinics. Holsteen was defendant's Director of Regional Access Services. (Holsteen Aff. [68-16] ¶ 2.) In June 2005, whilst conducting a "routine review of physician schedules," Holsteen noticed that evening sessions had been opened for plaintiff in which patients he had seen earlier in the day were booked. (Id.) Subsequently, Holsteen sent an email to plaintiff's supervisors, Dr. Manning and Dr. Schwartz, expressing her concern at her findings. (Id. ¶ 3.) She wrote,

Dr. Lurie is the only surgeon that I am aware of that sees his double books during the day and places them in an extra session in the evening. His timesheet will reflect an additional four hours that was filled with one hour's equivalent of patients that were seen during his regular day. This is not the routine for our approach to scheduling. (Id. at 4.) Eventually, the matter was referred to Cahill. (Cahill Aff. [68-3] ¶¶ 2, 12.) After reviewing plaintiff's time sheets, Cahill recognized that plaintiff was reporting many more hours than his fellow physicians. (Id. ¶ 12.) Further exploring company files, she found that no other physician in 2004 or 2005 had created ghost clinics except for plaintiff's surgical colleague Dr. Krolik who created just three ghost clinics in 2004. (Id. ¶¶ 12, 14). Following Cahill's investigation, defendant terminated plaintiff in October of 2005. (Id. ¶ 15.) By all appearances, Holsteen and Cahill honestly and reasonably believed that plaintiff's timesheets were improper. Accordingly, no reasonable jury could infer discrimination from the time sheet evidence.

Plaintiff also maintains that while other physicians, including his surgical colleague Dr. Krolik, created ghost clinics, only he was disciplined for doing so. He alleges his disparate treatment is indicative of discrimination. Plaintiff is correct that evidence that similarly situated employees were treated differently is proper fodder for an employment discrimination case. Brady, 520 F.3d at 495. However, plaintiff's long disciplinary history ...

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