United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
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.
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.
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.
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.
Dr. Hussain's Prior Lawsuit in the District of Columbia
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.
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
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.
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).
Dr. Hussain's Prior Lawsuit in the District of Maryland
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 ¶¶
Maryland District Court rejected these claims and granted
summary judgment to the ...