United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
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.
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.
United Medical Center's Emergency Department
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. 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.
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.
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.
Dr. Adam Brown and the Lead-PA Position
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.
8, 2016, Plaintiffs-all of whom are African-American PAs and
are current or former employees of Provo in the United
ED-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.
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. Pls.' Opp'n at 45-49, 57-62.
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.
The Change in the PA Compensation Structure
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.
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.
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
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,
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.