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Morris v. Shulkin

United States District Court, S.D. Georgia, Dublin Division

January 19, 2018

ALBERT MORRIS, Plaintiff,
v.
DAVID J. SHULKIN, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          ORDER

         Plaintiff Albert Morris ("Plaintiff"), a black male who is proceeding pro se, is suing his former employer, the Department of Veterans Affairs, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e efc seg., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. The case is presently before the Court on Defendant's motion for summary judgment as to all claims. Upon consideration of the record evidence, the relevant law, and the parties' briefs, the motion for summary judgment is GRANTED.

         I. BACKGROUND[1]

         A. Factual Background

         Plaintiff is a black male born April 18, 1951. In May 2009 Plaintiff was offered a position as Staff Radiologist at the Carl Vinson VA Medical Center in Dublin, Georgia. Newly hired physicians must apply to the hospital "Professional Standers [sic] Board for Credentialing and Privileging" for an appointment of clinical privileges. See (Def.'s Mot. for Summ. J., Doc. No. 24, Ex. 4.) Privileges are generally awarded for two years. Plaintiff applied for privileges as a full-time radiologist and was approved through May 2011.

         When Plaintiff began his employment, Dr. Kush Kumar was his immediate supervisor. In January 2010, Plaintiff reported Dr. Kumar for patient abandonment. According to Plaintiff, this is where his employment problems began.

         About this same time, Dr. Kumar informed Plaintiff that he wanted him to read MRIs as part of his job responsibilities. (PL's Dep. of Mar. 14, 2017, Doc. No. 24-2, at 38.) According to Plaintiff, MRIs had never been interpreted at the facility, and MRIs were not listed on the list of modalities when he applied for the position. (Id.) In fact, Plaintiff had not read MRIs in three or four years prior to his employment at the VA. (Id.) Moreover, Plaintiff believed he should be compensated more for reading MRIs since that modality was not listed in the job announcement. (PL's Dep. of Feb. 9, 2015, Doc. No. 24-3, at 46-48.)

         On April 5, 2010, Plaintiff received a letter placing him on paid non-duty status "pending a decision on whether a Summary Review is appropriate." (Def.'s Mot. for Summ. J., Ex. 8.) On July 30, 2010, Plaintiff's privileges were summarily suspended upon the recommendation of the Chief of Staff, Dr. Nomie Finn, who had reason to be concerned that "aspects of [Plaintiff's] clinical competency do not meet the accepted standards of practice and potentially constitute an imminent threat to patient welfare." (Id., Ex. 9.) The letter further provided: "An administrative review of your imaging examinations found a significant number of major disagreements in relation to spinal MRIs and CTs.[2] This suspension is in effect pending a comprehensive review of your imaging examinations." (Id.) Plaintiff does not dispute receiving the letter or the fact of suspension, nor the fact that the committee made the stated findings; rather, he claims the committee was not independent and the process was flawed and not in accordance with written policy recommendations. (See generally PL's Resp. to Def.'s St. of Material Fact, Doc. No. 33, ¶¶ 21-22.) According to Plaintiff, he received the July 30, 2010 letter one week after Dr. Kumar was informed of the complaint about patient abandonment.[3] (Id. ¶ 21.)

         For reasons unknown, Plaintiff remained on paid administrative leave for one year, until August 2011. When Plaintiff returned, the VA had hired two Staff Radiologists: Drs. Edward Silverman and Aida Karahmet. Dr. Silverman had been assigned to Plaintiff's former office. Indeed, at the time of his return, there were no vacant offices in the Radiology Department (Building Four on the VA campus); so, Plaintiff was placed in Building Six pending construction of his new office in Building Four. While the VA claims that Plaintiff's workspace in Building Six was similar to all other radiologists, Plaintiff complains that his office did not have room darkening capabilities, only had 2 bank x-ray displays rather than 4, and was not within range of departmental paging and other forms of communication within the radiology department. (PL's Resp. to Def.'s St. of Material Fact, Doc. No. 33, ¶ 33.) Plaintiff further complains that other arrangements could have been made to accommodate his office in Building Four, such as moving the part-time radiologist or the chief technologist, both of whom were female. As soon as his office was fully constructed and suited with furniture and equipment, Plaintiff was moved back to Building Four in roughly July 2012.

         Also upon Plaintiff's return in August 2011, he was placed under the supervision of Associate Chief of Staff, Dr. Raman Damenini. On October 28, 2011, Dr. Finn informed Plaintiff that he must undergo a Focused Professional Practice Evaluation ("FPPE"). The FPPE process assures a physician is competent so that clinical privileges can be maintained and quality of care for patients can be assured.[4] The FPPE was implemented because the medical staff was concerned by past discrepancies in Plaintiff's case readings and because too much time had elapsed since Plaintiff practiced "at an acceptable productivity level." Plaintiff was told that the process is completed on any provider who had recently been granted clinical privileges and that his clinical privileges depended upon the FPPE outcome. Plaintiff's privileges were granted for six months, from November 4, 2011 to May 3, 2012.[5]

         On February 28, 2012, Plaintiff successfully completed the FPPE upon demonstrating an acceptable level of professional competence. The Medical Evaluation Committee, however, recommended an Ongoing Professional Practice Evaluation ("OPPE") for Plaintiff. The OPPE is performed twice a year and is less stringent than the FPPE. The OPPE is a requirement for all physicians to confirm the quality of care delivered.

         On May 3, 2012, Plaintiff's clinical privileges were extended for only a ninety-day period, until July 31, 2012. The VA explains that Plaintiff did not have enough peer reviews on file to re-credential him.[6] Accordingly, the VA sent out 15 of Plaintiff's interpretations to three different facilities for peer review. (Def.'s Mot. for Summ. J., Ex. 32, at 8-9 (M[A]ny employee who is being recredentialed has to submit additional information, just like you're starting all over. And so that means that he has to have peer reviews that are up-to-date, current, and he has to have a certain number before we can declare him recredentialed.").) The ninety-day period was granted to allow time for the peer reviews to come back to the VA. (Id. at 10.)

         On May 24, 2012, Plaintiff received notification of disagreements with readings of his ultrasound and CT scans through the OPPE process. The VA suspended Plaintiff's clinical privileges for reading ultrasound and CT scans. Plaintiff was allowed to read only plain film while his ultrasounds and CT scans underwent a comprehensive peer review. On July 6, 2012, all of Plaintiff's privileges were suspended due to concerns about his professional competence.

         On August 8, 2012, Plaintiff re-applied for clinical privileges. Only plain film privileges were granted pending the outcome of retraining and evaluation. The VA arranged for Plaintiff to receive individualized, two-week training at the VA in Charleston, South Carolina. Both parties pick and choose favorable statements from the training physician's final report, but his conclusion is unmistakable: "[Plaintiff's] skill as a radiologist functioning independently is questionable and further review is needed, at a minimum. My general impression is that [Plaintiff] would not meet the standards to work independently in my department." (Def.'s Mot. for Summ. J., Ex. 40, at 1-2.)

         On October 31, 2012, Plaintiff's supervisor, now Dr. Ami Girgis, instructed him to apply for a full range of privileges in line with the job description of a VA Staff Radiologist. On November 2, 2012, Plaintiff returned his application package requesting only plain film radiograph and fluoroscopy privileges. Plaintiff claims he was concerned about the effect of applying for privileges that would be denied because of the negative effect denials would have on his professional record. (PL's Dep. of Mar. 14, 2017, at 66.) On November 7, 2012, Plaintiff was again instructed to apply for a full range of privileges and warned that his privileges would expire on November 8, 2012. Plaintiff did not timely comply and his privileges expired. On November 9, 2012, the VA informed Plaintiff that he was no longer a member of the medical staff with clinical privileges.[7] On December 6, 2012, the VA placed Plaintiff on non-duty status.

         Some time later, on November 13, 2013, the VA sent Plaintiff a proposed discharge letter, outlining 24 cases in which Plaintiff demonstrated inadequate clinical competence through incorrect interpretations and/or recommendations. On August 29, 2014, Plaintiff received a discharge letter, effective September 6, 2014. The letter stated that Plaintiff was discharged from federal employment because of a demonstration of inadequate clinical competence.

         In his deposition, Plaintiff claims that he was subjected to a sham peer review and that the VA, through its Chief of Staff Dr. Nomie Finn, attempted to destroy his career and professional reputation. (PL's Dep. of Mar. 14, 2017, at 64-70.) He claims that Dr. Finn is "extremely vindictive" and "emotionally unstable." (Id. at 67.)

         B. Procedural Background

         Plaintiff filed his first EEO claim on August 20, 2010, disputing his placement on administrative leave from April 5, 2010 to August 1, 2011. He alleged discrimination based on his race, sex and age. However, because Plaintiff had been paid during his 16-month administrative leave, the EEO counselor determined no harm had been caused. Plaintiff did not file a formal EEO complaint at that time.

         On May 31, 2012 and January 24, 2013, Plaintiff contacted an EEO counselor again and alleged discrimination based on race, sex and age as well as reprisal for prior EEO activity. Plaintiff filed a formal complaint with the Equal Employment Opportunity Commission on July 20, 2012. The claims accepted for investigation and adjudication were whether Plaintiff was discriminated against as evidenced by the following events:

• The placement in Building Six upon his return to work in August 2011
• Disparity in pay with other radiologists
• Limited approval of clinical privileges (i.e. three months) from May 7, 2012 to July 31, 2012
• Placement on non-duty status on December 6, 2012

(See generally Compl., Case No. 3:16-CV-046, ¶ 9.) On March 1, 2016, the Administrative Judge issued a decision in favor of the VA on all claims. (Id. ¶ 10.)

         On October 20, 2014, after the effective date of Plaintiff's termination, Plaintiff initiated an informal EEO complaint. On January 26, 2015, Plaintiff filed a formal charge of discrimination with the EEOC. The claims accepted for investigation and adjudication were whether Plaintiff was subjected to a hostile work environment as evidenced by the following events:

• Plaintiff's proposed removal in the memorandum of November 13, 2013
• The nine-month period, from November 13, 2013 to August 29, 2014, for the VA to render a decision regarding Plaintiff's proposed removal
• The VA's refusal to allow Plaintiff to sufficiently review or respond to the charges in the proposed ...

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