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Hussain v. Shulkin

United States District Court, District of Columbia

August 25, 2017

MOHAMMED HUSSAIN, Plaintiff,
v.
DAVID J. SHULKIN, Secretary of Veterans Affairs, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER United States District Judge.

         In 2003, the Department of Veterans Affairs, Washington, D.C., terminated Dr. Mohammed Hussain, a radiation oncologist, because he copied and pasted other physicians' assessments of patient illness into his daily patient reports without evidence that he actually performed the patient assessments personally. Years later, in 2012, the VA Medical Center, St. Louis, Missouri, terminated Dr. Hussain's contract when his supervisor found that he had been copying and pasting other doctors' medical notes in a manner that jeopardized patient health. Dr. Hussain alleges the St. Louis VA Medical Center terminated his contract in retaliation for his equal employment opportunity (EEO) activity related to his 2003 termination.

         Two federal district courts have already rejected similar retaliation claims advanced by Dr. Hussain against the VA, holding that his erroneous and confusing recordkeeping provided a legitimate, nondiscriminatory reason for prior adverse actions of which he complained. See Hussain v. Principi (Hussain I), 344 F.Supp.2d 86 (D.D.C. 2004) (ESH) affdsub nom. Hussain v. Nicholson (Hussain II), 435F.3d359(D.C. Cir. 2006); Hussain v. Mansfield (Hussain III), No. 8:07-cv-330 (D. Md.). While Dr. Hussain bases his instant complaint on a more current adverse action, the alleged EEO activity is not current, and the legitimate nondiscriminatory reason given by the St. Louis VA Center to terminate his contract repeats itself.

         The VA moves for summary judgment under Fed.R.Civ.P. 56 and for dismissal under Fed.R.Civ.P. 12(b)(6) for failure to exhaust administrative remedies. Def's Mot. for SJ [Dkt. 54]. Dr. Hussain has opposed, Pl.'s Mem. in Opp'n [Dkt. 55], and the VA has replied, Def's Reply [Dkt. 56]. The motion will be granted.

         I. BACKGROUND

         Dr. Hussain has previously alleged, in both the D.C. and Maryland federal district courts, that the VA retaliated against him, first by giving him a negative review for generating erroneous and misleading medical records that endangered patients, and then by providing that negative review to other hospitals that requested references from Dr. Hussain's previous affiliations. Both courts rejected claims that these acts were retaliatory. See Hussain I, 344 F.Supp.2d at 106; Hussain v. Mansfield, Fed.App'x 419, 420 (4th Cir. Feb. 25, 2010) (per curiam) (quoting Hussain IIFs oral ruling dismissing claims). These earlier cases form the backdrop to the instant matter.

         A. Dr. Hussain's Prior Lawsuit in the District of Columbia (Hussain l)

         Dr. Hussain is a Muslim male of Indian descent. Am. Compl. [Dkt. 14] ¶ 4. In 1978, he was hired as the Assistant Chief of Radiation Oncology at the Washington D.C. VA Medical Center. See Def's Statement of Undisputed Facts [Dkt. 54-2] (Def s Statement) ¶ 1. When the Chief of Radiation Oncology retired in 1997, Dr. Hussain was appointed Acting Chief. Hussain I, 344 F.Supp.2d at 90. He was the only physician in Radiation Oncology from 1997 until 2001. Id.

         On September 26, 2000, the Director of the VA Medical Center announced that "Dr. Klemens Barth, then Chief of the Imaging Service, was appointed Chief of the newly created Radiology Service, " resulting from the merger of Radiation Oncology and the Imaging Service. Id. at 91. As a result, Dr. Hussain reported to Dr. Barth and not the Medical Center's Director. Id. On November 29, 2000, Dr. Hussain filed an informal EEO complaint, to the effect that he had not only been denied promotion into Dr. Barth's position but also effectively demoted when the Radiation Oncology department merged into the Radiation Service. Def s Statement ¶ 2. He complained of discrimination based on his race, age, religion, and national origin. Id.

         Dr. Hussain's performance evaluations suffered in the months after learning that he would not become chief of the new Radiology Service. Of particular concern was "his failure to conduct adequate follow-up with radiation patients, " which is considered "essential." Hussain I, 344 F.Supp.2d at 92. As a result, Dr. Hussain's privileges were renewed "with modifications" in June of 2003 for a three-month period instead of the customary two years. Id. Pursuant to the modifications, Dr. Hussain was "required to document the results of weekly examinations of his patients and that documentation would be reviewed monthly." Id. Upon review in August, a Professional Standards Board completed a Memorandum on Dr. Hussain's work, which found "an alarming pattern . . . that Dr. Hussain finds it appropriate to copy and paste other physicians['] assessment[s] into the electronic patient record without giving evidence that he has actually seen and examined the patient prior to, during, or after treatment." Def. Mem. Ex. 1, 8/22/03 Professional Standards Board Memorandum [Dkt. 54-3] at 3 (ECF numbering). Dr. Hussain had taken extended sick leave in July 2003, prior to the review of his records. When a request for follow-up medical documentation concerning his illness was not returned, the Medical Center placed him on "Absence Without Leave" status. Dr. Hussain retired from the VA in September 2003. See Hussain I, 344 F.Supp.2d at 93.

         In November 2003, Dr. Hussain amended his pending Complaint in the D.C. district court, alleging discrimination and retaliation. The district judge granted summary judgment to the VA, noting that its conduct was rooted in "valid and documented concerns regarding [Mr. Hussain's] performance and not in any animus towards his race, religion, or national origin. No reasonable factfinder could conclude otherwise." Id. at 103. The D.C. Circuit affirmed summary judgment, Hussain II, 436 F.3d at 366. The Supreme Court denied certiorari. Hussain v. Nicholson, 549 U.S. 933 (2006).

         B. Dr. Hussain's Prior Lawsuit in the District of Maryland (Hussain III)

         Dr. Hussain sued the VA again in the District of Maryland on December 18, 2007. See Hussain III, No. 8:07-cv-3370. Dr. Hussain complained that the VA retaliated against him by releasing unfavorable employment information to the Civesta Medical Center in the fall of 2003, whereby Civesta declined to renew his clinical privileges. See Def's Mem. of Law, Ex. 3, Mansfield Complaint [Dkt. 54-3] ¶ 76. He also complained about a negative reference made in 2004 to a doctor at Mercy Medical Center in Baltimore, M.D., which Dr. Hussain alleged caused him to receive a negative review from Mercy and lose his client relationship with Weatherby Locums, his temporary employment agency. See Id. ¶¶ 62-68. Further, Dr. Hussain alleged retaliation because the VA provided a negative reference to the Frederick Memorial Hospital in the summer of 2006. Id. at ¶¶ 19-20.

         The Maryland District Court rejected these claims and granted summary judgment to the ...


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