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Telesford v. Maryland Provo-I Medical Services, P.C.

United States District Court, District of Columbia

September 2, 2016

Danielle Telesford, et al., Plaintiffs,
Maryland Provo-I Medical Services, P.C., et al, Defendants.


          Amit P. Mehta United States District Judge


         Plaintiffs in this case-seven African-American certified physicians' assistants-filed this lawsuit against their employer, Maryland Provo-I Medical Services, P.C.; a related management-services entity, EmCare, Inc.; and two individuals, alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, as well as common law breach of contract. Plaintiffs assert that Defendants' failure to promote any of them for a supervisory position was discriminatory and that Defendants subsequently retaliated against them for filing discrimination complaints by threatening them with termination. One Plaintiff additionally asserts that she actually was terminated because of protected activity.

         This matter is before the court on Defendants' Motion for Summary Judgment. Having reviewed the pleadings and evidence, the court finds that a reasonable jury could conclude that Defendants EmCare and Maryland Provo-I Medical Services discriminated against Plaintiffs during the promotion process. The court further concludes that Plaintiffs' Title VII discrimination claims against Defendants Jennifer Korando and Adam Brown must be dismissed, but that their Section 1981 discrimination claim may proceed against Brown only. Finally, the court finds that no reasonable jury could conclude that Defendants retaliated against Plaintiffs or breached their contractual obligations to Plaintiffs. Accordingly, the court grants in part and denies in part Defendants' Motion for Summary Judgment.


         A. Factual Background

         1.The United Medical Center's Emergency Department

         United Medical Center ("United") is a not-for-profit hospital corporation located in the District of Columbia. Complaint, ECF No. 1 [hereinafter Compl.], ¶ 7. United's Emergency Department ("ED") is divided into two sections: (1) the "Core" section for patients with more serious medical conditions who require immediate attention by an emergency room physician, and (2) the "Fast Track" section for all other patients. Defs.' Stmt, of Material Facts, ECF No. 40-2 [hereinafter Defs.' Stmt.], ¶ 4.[1] Those patients assigned to the Fast Track are first treated by a physician's assistant ("PA") who conducts a preliminary evaluation of those patients and provides an initial recommendation (e.g., discharging with a prescription, admitting to the hospital, etc.). Id. ¶¶ 4-6. The responsible PA documents the services provided on the patient's medical chart and then gives the chart to the responsible physician for review and submission to a billing company for reimbursement. Id. ¶¶ 6-8. The billing company reviews the chart and assigns the patient's treatment a Relative Value Unit ("RVU")-a unit of measurement designed to account for the seriousness of the condition treated and the relative complexity of the treatment provided-which is then provided to the patient's insurance provider so that the insurance provider can calculate the amount that United will be reimbursed. Id. ¶¶ 9-10.

         In 2009, United contracted with EmCare, Inc. ("EmCare"), to provide doctors and PAs to operate United's ED. Id. ¶ 15, 103. EmCare, in turn, entered into an agreement with Defendant Maryland Provo-I Medical Services, P.C. ("Provo"), to provide the necessary staff for United. Id. ¶¶ 31 -32. The United-EmCare contract took effect on June 1, 2009. Id. ¶ 103. Before the contract began, a recruiter employed by EmCare, Defendant Jennifer Korando, began negotiating with the PAs and doctors already working at United to secure an agreement that would allow them to continue to work in the ED, but as employees of Provo. Id. ¶ 26.

         Provo originally offered to compensate existing PAs at a lower hourly rate than they previously had been paid, but to supplement their salaries with a bonus based on the composite RVU of the treatments provided. Id. This compensation package, according to Defendants, was designed to incentivize higher performance. Id. ¶¶ 26-27. When it became clear, however, that the existing PAs would not accept such a compensation structure, Provo agreed to allow them to remain at their original hourly rate. Id. ¶ 26. Provo, however, required all newly hired PAs to accept the RVU-based compensation structure. Id. ¶ 105. In addition, each contract between Provo and its PAs-both with existing and new employees-contained a termination clause providing for "at will" termination by either party. Id. ¶ 107.

         2. Dr. Adam Brown and the Lead-PA Position

         In early 2012, EmCare hired Defendant Dr. Adam Brown-a white male-as Medical Director for the ED. Defs.' Stmt. ¶¶ 17-19. During the interview process, United hospital officials expressed to Brown their concerns about the department's performance in several areas, including quality of care, length of patient stay, and other health care provider metrics. Id. ¶¶ 20-21. Following his hire, Brown sent a memo to ED personnel outlining his four goals: (1) reducing patient length-of-stay; (2) improving patient satisfaction; (3) improving physician and PA productivity; and (4) improving quality improvement metrics. Id. ¶ 85.

         On July 8, 2016, Plaintiffs-all of whom are African-American PAs and are current or former employees of Provo in the United ED[2]-received an email from Nathan Madsen, a white male, part-time PA with Provo, informing them that he had been offered and would be accepting a newly created Lead-PA position in the ED. Pls.' Opp'n Ex. 6, July 8, 2016, e-mail from Nate Madsen, ECF No. 41-2, at 86. This was the first time Plaintiffs were made aware of this new position, as neither EmCare nor Provo had formally advertised the position nor published a job description until after Madsen was hired. Pls.' Opp'n at 46-47.

         The creation of the Lead-PA position and the decision to award the position to Madsen form the basis for Plaintiffs' discrimination claims. Defendants assert that Brown, the ED Medical Director, first came up with the idea of creating the Lead-PA position in February 2012-nearly six months before he arrived at the United ED. Defs.' Stmt. ¶ 84. According to Brown, he selected Madsen based on his qualifications after (1) soliciting recommendations from Korando, the EmCare recruiter, and (2) reviewing the resumes and performance metrics of all PAs, which he had obtained from Korando. Id. ¶¶ 86-87. Korando recommended Plaintiff Chandon-Cooke and Madsen for the position. Id. Brown asserts that, based on his review, he narrowed his focus to three candidates-Plaintiff Chandon-Cooke, Plaintiff Telesford, and Madsen. Id. ¶ 87. Brown ultimately selected Madsen because, in his view, he possessed the strongest metrics of all the PAs, including having the shortest average length-of-stay per patient, seeing the most patients per hour, and generating the highest number of RVUs per hour. Id. ¶ 90. Plaintiffs dispute Madsen's relative qualifications.[3] Pls.' Opp'n at 45-49, 57-62.

         In the months following Madsen's promotion, Plaintiffs grew increasingly upset about his hiring. Starting first on September 7, 2012, and continuing until October 1, 2012, each Plaintiff filed a separate Discrimination Charge with the Equal Employment Opportunity Commission ("EEOC") alleging that he or she was discriminated against during the promotion process. Defs.' Stmt. ¶¶ 125-26, 128, 130, 132, 134, 136, 138.

         3. The Change in the PA Compensation Structure

         Meanwhile, on May 23, 2012, a group of PAs-including Madsen and Plaintiffs-sent Korando a joint letter requesting a pay raise. Id. ¶ 108. Korando advised the PAs that she had discussed the request with Brown and that no action was likely to occur before Brown's official start as the ED Medical Director in July. Id. ¶ 111.

         At a staff meeting on August 1, 2012, Brown announced a new pay structure for PAs. Id. ¶ 116. Effective September 1, 2012, PAs would be compensated at an hourly rate supplemented by both an RVU-based and a "citizenship" bonus, which could be earned by meeting certain RVU-based performance metrics and by participating in various hospital activities. Id. Before EmCare implemented the pay restructuring, it presented each Plaintiff with an analysis showing that, under the new system, each would receive an increase in his or her effective hourly rate of pay. Id. ¶ 118.

         Despite these assurances, some of the PAs expressed dissatisfaction with the proposed changes to the compensation system. Id. ¶ 122. Thereafter, Brown announced that any PA who refused to agree to the new compensation structure would be considered to have resigned pursuant to the "at-will" termination clause in their employment contract. Id.

         By mid-November, EmCare relented in its insistence that all PAs be subject to the new pay structure. By email dated November 20, 2012, an EmCare executive explained that the company should have obtained written permission from each PA before implementing the new system. Id. ¶ 123. He then offered each PA the opportunity to either elect to receive compensation under the new system or remain under the old one. Id. EmCare also offered to reimburse, with interest, any amount that an employee had not received, but which they were entitled to receive, under the original pay structure. Id. Each Plaintiff opted to remain under the old system, id. ¶ 124, and Plaintiffs Telesford, Ofwono, and Chandon-Cooke were all subsequently reimbursed for their lost wages, id.¶¶ 50, 68, 83.

         Starting on November 14, 2012, each Plaintiff filed a separate Charge of Discrimination with the EEOC alleging that the requirement that he or she agree to the proposed compensation structure, and Brown's invocation of the "at-will" termination clause in their employment contracts, constituted retaliation for the discrimination complaints they had filed relating to Madsen's promotion. Id. ¶¶ 126, 128, 130, 132, 134, 136, 138.

         4. Plaintiff ...

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