Opinion
Civil Action No. 18-cv-02206-MSK-STV
2022-08-29
Richard GREEN, Plaintiff, v. U.S. ANESTHESIA PARTNERS OF COLORADO, INC., and U.S. Anesthesia Partners, Inc., Defendants.
Stephen B. Rotter, Jennifer Lyn Gokenbach, Workplace Counsel, Denver, CO, for Plaintiff. Heidi Kristina Wilbur, Steven W. Moore, Fox Rothschild LLP, Denver, CO, for Defendants.
Stephen B. Rotter, Jennifer Lyn Gokenbach, Workplace Counsel, Denver, CO, for Plaintiff. Heidi Kristina Wilbur, Steven W. Moore, Fox Rothschild LLP, Denver, CO, for Defendants.
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Marcia S. Krieger, Senior United States District Judge
THIS MATTER comes before the Court pursuant to the Defendants' (collectively referred to as "USAP") Motion for Summary Judgment (# 113), Dr. Green's response (# 120), and USAP's reply (# 124). Also pending are Dr. Green's motion (# 127) to strike a portion of USAP's reply brief or otherwise file a surreply, and USAP's Motions for Leave to Restrict (#126, 131) public access to certain filings.
FACTS
Based upon the record of undisputed facts (and construing those in dispute most favorably to the non-movant) the following pertinent facts are summarized below. The Court will further elaborate, as necessary, in its analysis.
Dr. Green, an anesthesiologist, has been diagnosed with Autism Spectrum Disorder and has struggled with alcoholism for many years. In 2008, his medical license was suspended by the Colorado Physician Health Program ("CPHP") and he was required to complete an in-patient alcohol rehabilitation program. After completing such a program, his license was restored and he returned to practice. In 2012, during a divorce, Dr. Green relapsed and was arrested for driving under the influence of alcohol. CPHP did not revoke his license at that time, but placed him on a monitoring and testing program.
CPHP works closely with the Colorado Medical Board and other physician licensing entities. For purposes of this Order, the Court need not differentiate among those entities and will refer to CPHP as the entity taking all pertinent actions herein.
Dr. Green has been employed by the same anesthesiology practice for more than 20 years, although that practice has changed ownership periodically. In 2015 or 2016, that practice was acquired by USAP. Under USAP's ownership, Dr. Green's job title was "Partner," and USAP and Dr. Green entered into a "Partner Agreement," which, among other things, required Dr. Green to maintain medical staff privileges at various medical facilities and participate in an on-call rotation at a group of hospitals and surgical facilities. Dr. Green's status as a Partner at USAP also entitled him to compensation in the form of USAP stock, subject to a 5-year vesting period.
The record is somewhat unclear as to precisely when USAP took over ownership of GCA, the practice that previously employed Dr. Green. Because the specifics of the transition from GCA to USAP are generally irrelevant to the analysis herein, the Court will simply assume that USAP was Dr. Green's employer for all pertinent periods in this case.
Shortly after USAP's acquisition of the practice, Dr. Green relapsed and began consuming alcohol again. He tested positive for alcohol consumption in both July and October 2015. On October 27, 2015, Dr. Green requested to take a leave of absence from his work in order to seek alcohol treatment, and USAP granted that request. On November 18, 2015, in order to avoid a license suspension, Dr. Green agreed to another treatment and monitoring program under CPHP's supervision. As part of that agreement, medical facilities where Dr. Green practiced were notified of his situation. Many of those facilities suspended Dr. Green's privileges to practice medicine at their locations. The suspension of those privileges are critical to Dr. Green's ability to perform his work. As an anesthesiologist, Dr. Green does not treat patients in his own office. Rather, he performs his work on patients on-site in hospitals, surgery centers, and other medical facilities. Thus, his ability to work at those facilities is controlled by the facilities themselves. If a facility revokes Dr. Green's privileges, Dr. Green is unable to perform any work on any patient at that facility, even though USAP has contracts with those facilities to provide services. USAP is then obligated to find a different doctor on its staff who can do so.
In March 2016, having completed alcohol rehabilitation, Dr. Green sought to resume his duties. USAP allowed him to return to work, but indicated that it expected him to re-obtain privileges at most of the facilities that he previously serviced. Dr. Green applied to those facilities to regain his privileges, but his applications were mostly unsuccessful, and by July 2016, he had reobtained privileges at only two surgical centers and one hospital. Because his ability to take on assignments was substantially reduced by his lack of broad privileges and because he could not staff on-call shifts that required him to be able to perform services at any facility that might call, USAP deemed him to no longer be capable of working as a Partner and terminated his Partner status in August 2016. That termination occurred prior to the 5-year vesting period of the USAP stock under the Partnership Agreement, and Dr. Green was also deemed to have forfeited his right to that stock.
The record indicates that, prior to his relapse, Dr. Green held privileges at at least six hospitals and at least nine surgical facilities.
Notwithstanding the termination of his status as a Partner, USAP continued to retain Dr. Green as an employee, changing him to an hourly-based assignment and compensation schedule. This allowed him to continue to provide services at the facilities where he had retained or re-obtained his privileges, and he was no longer expected to participate in the on-call rotation. By early 2018, Dr. Green had restored his privileges at a few more facilities and another hospital, although three more major hospitals and several surgical centers still refused to grant him privileges.
In April 2018, a nurse at a medical facility complained that Dr. Green had sexually harassed her, massaging her shoulders and making comments about being single that she found unwelcome. Dr. Green initially denied the allegations, but later acknowledged that the events the nurse described may have occurred. Dr. Green told USAP officials of his Autism diagnosis, stating that the condition that makes it difficult for him to read social cues, and asserted that he did not realize that his behavior was unwelcome or inappropriate. After conducting its own investigation, the facility employing the nurse deemed the accusations credible and prohibited Dr. Green from working at one of the facility's locations. Based on the accusations against Dr. Green and the decision to bar him from yet another medical facility, USAP terminated Dr. Green's employment entirely on September 11, 2018.
Dr. Green commenced (# 1) this action about two weeks prior to USAP's 2018 termination of his employment. His Amended Complaint (# 30) asserts four claims: (i) discrimination (both in the form of disparate treatment on the basis of disability and of failure to accommodate) on the basis of disability in violation of both the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-401 et seq.; (ii) discrimination on the basis of disability and retaliation in violation of the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794(a); (iii) common-law breach of contract, presumably under Colorado law, arising from USAP's termination of the Partner Agreement; and (iv) retaliation for engaging in protected activity, in violation of both the ADA and CADA.
USAP moves (# 113) for summary judgment on each of Dr. Green's claims, arguing: (i) as to the disability discrimination claims, Dr. Green cannot establish a prima facie case because he cannot show that he was capable of performing the essential function of participating in the on-call rotation, that he cannot show that he suffered an adverse action that was caused by his disabilities, and that he cannot show that USAP's reasons for terminating his employment (as both a Partner in 2016 and as an non-Partner employee in 2018) are pretextual; (ii) as to his claim for failure to accommodate, he cannot show that he was otherwise qualified for his position or that he requested a reasonable accommodation for his autism, that USAP provided him with all necessary reasonable accommodations, and that any other requested accommodations would constitute an undue hardship for USAP; (iii) as to the Rehab Act claims, that Dr. Green cannot show that he was otherwise qualified for his position and that he was discriminated against because of his disability; (iv) as to any retaliation claim, Dr. Green cannot show that any adverse actions taken by USAP were caused by his protected conduct and cannot show that USAP's proffered reasons for those actions are pretextual; and (v) as to the breach of contract claim, Dr. Green cannot show that he performed his obligations under the terms of the parties' agreement.
ANALYSIS
A. Standard of review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The Court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. Disparate treatment on the basis of disability
The Court begins with Dr. Green's claims that his disabilities - alcoholism and Autism Spectrum Disorder - were a motivating factor in USAP's decision to terminate his status as Partner in 2016, and to terminate his employment entirely in 2018.
Disparate treatment claims under the ADA, CADA, and the Rehab Act all employ the same burden-shifting analysis, and thus, the Court will consider Dr. Green's claims under all three statutes simultaneously. See Aubrey v. Koppes, 975 F.3d 995, 1004 & n. 4 (10th Cir. 2020). Dr. Green bears the initial burden of demonstrating a prima facie case of discrimination by showing: (i) that he has a disability; (ii) that he met the minimum qualifications for his job; (iii) that he suffered an adverse employment action; and (iv) that the adverse action occurred in circumstances giving rise to an inference of discrimination. If he satisfies that burden, the burden then shifts to USAP to articulate a legitimate, non-discriminatory reason for the adverse action(s), and Dr. Green bears the ultimate burden of showing that USAP's proffered reason is a pretext for disability discrimination. Edmonds-Radford v. Southwest Airlines Co., 17 F.4th 975, 989-90 (10th Cir. 2021).
Dr. Green experienced two different adverse actions - his termination as a Partner at USAP in 2016 and his later termination from employment with USAP in 2018. The analysis differs as to each incident, and thus, the Court analyzes the two events separately.
1. Termination of Partnership
As to Dr. Green's claim of disability discrimination relating to the termination of his status as a Partner, USAP contends that he cannot show that he was capable of performing the essential functions of the position of Partner. To be protected by the ADA, CADA, or the Rehab Act, an employee must be capable of performing the "essential functions" of the job, with or without a reasonable accommodation. See e.g. 42 U.S.C. § 12111(8). USAP contends that Dr. Green could not perform two essential functions of the job of Partner. In particular, (i) he could not maintain practice privileges at many medical facilities and hospitals; and (ii) due to his lack of privileges, he could not perform the job duty of participating in the on-call rotation.
The employer bears the burden of demonstrating that a particular job function is "essential." Courts generally defer to an employer's judgment regarding which job functions are essential, so long as the requirement is job-related, uniformly enforced, and consistent with business necessity. Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 877 (10th Cir. 2021). If the employer meets the burden of showing that a job function is "essential," the employee bears the burden to dispute that evidence or otherwise show that the function is not essential. Mannan v. Colorado, 841 Fed.Appx. 61, 67 (10th Cir. 2020).
As to the requirement that Partners maintain privileges at many medical facilities, the parties agree that that this requirement arises from Section 2.4 of the Partner Agreement that Dr. Green signed in early 2016. The provision reads, in pertinent part: "[Dr. Green] covenants that at all times, [he] shall . . . successfully apply for and maintain in good standing provisional or active medical staff privileges at the Facility or Facilities to which [he] is assigned by [USAP]." The record clearly reflects that both parties fully understood that Dr. Green was expected to maintain privileges at a number of specific facilities as a term of his employment. In an Interrogatory, Dr. Green asked USAP to "identify all facilities that Plaintiff was assigned to maintain medical staff privileges" between 2015 and 2018. Docket # 120-24 at 5 (emphasis added). USAP responded that he was "required to maintain credentials at multiple [specified] systems within his assigned region [in order] to be able to take call [and that] all legacy GCA providers [like Dr. Green] were required to have privileges at Rose Medical Center, St. Joseph Hospital, Presbyterian St. Luke's Medical Center, Porter Adventist Hospital, The Medical Center of Aurora, Sky Ridge Medical Center, and Parker Adventist Hospital." Id. More significantly, at his deposition, Dr. Green testified as follows:
Q: Let's look also at 2.4 [the 'staff privileges' language]. Did you understand that you were supposed to maintain the staff privileges you had at the facilities that you regularly worked at?
A: Yes, sir.
Q: That was a requirement under the contract?
A: Yes, sir.
. . .
Q: And you were to maintain staff privileges?
A: Yes, sir.
Docket #113-28 at 55 (objection omitted).
Dr. Green disputes that USAP ever formally "assigned" him to any particular facility. Thus, he argues, the language of Section 2.4 did not obligate him to maintain privileges at any particular facility. The basis of this argument rests largely on USAP's response to a Request for Admission, in which he asked USAP to "admit that Defendants did not 'assign' . . . Plaintiff to any facilities at the time Plaintiff and Defendant entered into the [ ] Agreement." USAP responded that "Defendants admit that [USAP did not] assign[ ] Plaintiff to work at specific facilities at the time Plaintiff entered into the February 10, 2015 [Partner Agreement]." Docket # 120-7 at 6-7. But that admission is temporallyqualified, reflecting that USAP had not specifically "assigned" Dr. Green to any specific facility as of February 10, 2015. Even if there is some ambiguity as to USAP's position as to which facilities Dr. Green was obligated to maintain privileges at under Section 2.4 as of February 2015, that ambiguity was resolved in March 2016.
On March 15, 2016, USAP wrote to Dr. Green, acknowledging that he had completed his rehabilitation program and "welcoming [him] back as a provider with [USAP]." In doing so, however, USAP emphasized that "it is important that you understand the terms and conditions of your return." Among the terms stated in the letter was USAP's instruction that "[i]t is expected that you reapply for privileges at most, if not all the hospitals in which [USAP] provides anesthesia services." Docket # 114-3. The March 2016 letter clearly reflects a type of "assignment" of facilities contemplated by Section 2.4 of the Partner Agreement. Section 2.4 makes clear that Dr. Green was required to maintain privileges at whatever facilities USAP might direct him to, and the March 2016 letter clearly constitutes a directive that Dr. Green seek privileges at "most, if not all of the hospitals in which USAP provides anesthesia services." Thus, the combination of the two documents makes it clear that an essential function of Dr. Green's employment as a Partner after March 2016 was that he apply for (per the March 2016 letter) and retain (per Section 2.4) privileges at the majority of the hospitals that USAP serviced. The Court does not understand Dr. Green to contend that the requirement that he re-obtain privileges at these facilities was somehow discriminatory or unreasonable. To the contrary, the record reflects that Dr. Green attempted to recover his privileges at all of the facilities in question, but he was largely unsuccessful in doing so.
The facts are undisputed that, prior to his relapse in 2015, Dr. Green provided services on USAP's behalf at the seven hospitals listed in USAP's interrogatory response above: Rose Medical Center, St. Joseph Hospital, Presbyterian St. Luke's Medical Center, Porter Adventist Hospital, The Medical Center of Aurora, Sky Ridge Medical Center, and Parker Adventist Hospital. It is undisputed that by July 2016, Dr. Green had only re-obtained privileges at one hospital, St. Josephs. Thus, by the time USAP terminated Dr. Green's status as a Partner, in or about August 2016, he had admittedly failed to re-obtain privileges at a majority of the hospitals where he had previously worked. Thus, the record reflects that at the time USAP terminated his status as Partner, he was not capable of performing the essential function of maintaining medical privileges at the majority of hospitals that USAP serviced. The same is true of the many surgical centers that revoked Dr. Green's privileges during his relapse and denied his applications to re-obtain those privileges during 2016. As a result, he cannot demonstrate a prima facie case of discrimination relating to the termination of his Partner status.
By some indeterminate point in 2017 or 2018, Dr. Green eventually re-obtained privileges to practice at the Medical Center of Aurora, Parker Adventist Hospital, and Porter Adventist Hospital, thus securing privileges at four of the seven hospitals where he previously practiced.
The record is also undisputed that USAP required most Partners to be available for "on-call" shifts, in which they would be expected to respond to emergency calls at whatever medical facility might summon them. Dr. Green's failure to retain privileges at most of the facilities USAP serviced prevented him from meaningfully staffing on-call shifts, as he would be unable to respond to calls from facilities where he did not hold privileges. The record is clear that the ability to staff on-call shifts was another essential function of the position of Partner, and one that Dr. Green could not perform due to his inability to recover his medical privileges at various facilities.
Dr. Green's summary judgment response argues at some length that USAP's requirement that Partners be available for "on-call" assignments to a broad range of facilities was a job requirement that was not uniformly imposed on all Partners. For example, he points to an interrogatory response from USAP that states that, beginning in April 2018, USAP implemented a policy that allowed some eligible Partners to "opt out of night call shifts while still honoring their full call availability requirements." Docket # 120-24 at Interrogatory 7. He also points to a May 2018 e-mail among USAP officials that notes that "Full-time Partner[s] take full call," but acknowledged that a limited number of "Legacy Shareholders . . . either take no call or reduced call." Docket # 120-31.
There are several problems with this argument. First, evidence that USAP made changes to the on-call policy in 2018 are irrelevant to Dr. Green, whose status as Partner had been terminated two years earlier. Dr. Green has not pointed to any records contemporaneous to his termination as Partner in or about August 2016 that suggest that USAP did not regularly require Partners to staff on-call shifts as an essential function of their job at that time. Second, the fact that USAP had multiple categories of doctors identified as "Partners," some of whom ("Full-Time Partners") who were required to take on-call shifts and others ("Legacy Partners") who were not is of no significance, insofar as there is no contention that Dr. Green ever held the job title of Legacy Partner. Thus, the record also reflects that Dr. Green was unable to perform the essential function of his Partner position of taking on-call shifts, further demonstrating that he was not qualified to retain the position of Partner.
USAP states that Legacy Partner was a position created specifically for employees of another anesthesia practice (not Dr. Green's) that USAP acquired. USAP needed to account for certain physicians in that practice that had secured special part-time, reduced-schedule, or other modified work arrangements with the practice that USAP was acquiring. Legacy Partners usually gave concessions in exchange for being relieved of the obligation to take on-call shifts, such as by working on an hourly instead of salary basis, or by foregoing an entitlement to USAP stock. To the extent Dr. Green is suggesting that USAP could have accommodated his disability by treating him like a Legacy Partner and relieving him from on-call responsibilities, the record reflects that USAP essentially did so: it converted him to hourly status and forfeited his entitlement to USAP stock, just as it did for other Legacy Partners who could not or would not staff on-call shifts.
Dr. Green argues that cases like Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511, 515 (2d Cir. 1991), stand for the proposition that, by relying on his loss of hospital privileges as a reason for terminating the Partner Agreement, USAP improperly relied on a "symptomatic manifestation of [his] handicap" of alcoholism. In Teahan, an alcoholic employee was terminated for excessive absenteeism, with at least some of those instances of absenteeism being connected to the employee's relapses into alcohol abuse. Reversing a grant of summary judgment to the employer at the pretext stage of the analysis, the Second Circuit carefully distinguished between the "otherwise qualified" step of the analysis and the pretext step, which inquired whether the employee could show that he was terminated "solely because of" his disability. It found that "termination for conduct resulting from a handicap" - that is, absenteeism caused by alcoholism - could be considered to be "termination 'solely by reason of' that handicap." 951 F.2d at 515 (emphasis in original). It found that the correct point in the analysis to evaluate how a disability affected an employee's conduct was the "otherwise qualified" stage, explaining that "if the consequences of the handicap are such that the employee is not qualified for the position, then a firing because of that handicap is not discriminatory, even though the firing is 'solely by reason of' the handicap." Id. at 516. Thus, it remanded the matter back to the trial court for further evaluation.
Teahan is a decision that has received substantial criticism from other courts, and to the extent it stands for the proposition that an employer is prohibited not only from considering the fact of an employee's disability, but also the effects of that disability, the 10th Circuit has expressly rejected it. In Williams v. Widnall, 79 F.3d 1003 (10th Cir. 1996), an alcoholic employee was terminated after he made threats against his co-workers during a period of relapse. Bringing a Rehab Act claim, he argued, citing Teahan, that "the threats he made were a direct result of his disability," and thus, a termination based upon those threats would be an unlawful termination based "solely upon" his disability. The 10th Circuit was unpersuaded, stating that "[w]e cannot adopt an interpretation of the statute which would require an employer to accept egregious behavior by an alcoholic employee when that same behavior, exhibited by a nondisabled employee, would require termination." Or, put more simply, the court found that "the Act does not protect alcoholics or drug addicts from the consequences of their misconduct." 79 F.3d at 1007. Thus, the 10th Circuit clearly rejects the findings of Teahan. As such, it was permissible for USAP to hold Dr. Green accountable for the effects of his alcoholism - the loss of his privileges at various facilities - without discriminating against him because of the fact of his disability.
As a result, the Court finds that Dr. Green cannot demonstrate that he was qualified to perform the essential job function of maintaining medical privileges at hospitals as directed by USAP. Thus, he cannot establish a prima facie case of disability discrimination as it relates to the termination of his status as a Partner at USAP, and USAP is entitled to summary judgment on that portion of Dr. Green's disparate treatment claims.
2. Termination of employment
The situation is somewhat different as to USAP's termination of Dr. Green's employment in 2018. It is unclear whether USAP argues that Dr. Green was incapable of performing the essential functions of the job as an hourly (i.e. non-Partner) anesthesiologist. Although it is true that Dr. Green had not reestablished privileges at all of the facilities where he had previously worked, and thus was not able to participate in on-call rotation, the Court does not understand USAP to argue that those were essential functions of non-Partner anesthesiologists. Indeed, USAP continued to employ Dr. Green on an hourly basis for two years as a non-Partner because he was unable to secure the privileges that were necessary to work as a Partner. Moreover, USAP contends that Dr. Green was terminated for engaging in sexual harassment, not because he was unable to perform the essential functions of his job. Thus, the Court finds that Dr. Green has demonstrated at least a genuine issue of fact as to whether he was capable of performing the essential functions of an hourly anesthesiologist in 2018.
USAP argues that Dr. Green cannot show the fourth element of a prima facie case: that his 2018 termination occurred in "circumstances giving rise to an inference of discrimination," thereby preventing him from establishing a prima facie case of disability discrimination. An employee may establish an inference of discrimination in a variety of ways, such as showing "actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, preferential treatment given to employees outside the protected class, . . . or, more generally, upon the timing or sequence of events leading to plaintiff's termination." Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005), quoting Chertkova v. Conn. General Life Ins. Co., 92 F.3d 81, 91 (2nd Cir. 1996).
Dr. Green primarily argues that he establishes circumstances warranting an inference of discrimination because he contends that several non-disabled physicians who engaged in acts of misconduct similar to his were treated more favorably than he was:
• A Dr. S___, who was "accused of assault by a patient and surgeon for an
action that he did in the operating room." Docket # 120-1 at 156-157. The record cited by Dr. Green does not elaborate on the nature or circumstances of this incident, but USAP's reply brief attaches an affidavit that reports that the matter concerned a dispute about whether a patient undergoing surgery "had adequately consented to the type of [anesthesia] block that Dr. S___ performed." Docket # 125-2 at ¶ 6. The record is somewhat unclear as to what happened as a result, but it seems to suggest that Dr. S___'s privileges at the facility were temporarily suspended pending investigation and were partially restored at the end of that investigation. Dr. S___ remained a Partner with USAP. Id. at 156-157.
• A Dr. R___, whom Dr. Green alleges "admitt[ed] that he assaulted a nurse at a hospital facility." The only evidence that Dr. Green cites to concerning Dr. R___ is an e-mail that merely states that Dr. R___'s "incident" - no details whatsoever are discussed - occurred on October 8, 2018 and that his "resignation occurred" the following day (and that USAP subsequently sent "disassociation letters" to medical facilities where Dr. R___ had privileges). In her deposition, Tillie Handy, USAP's Human Resources official, testified that Dr. R___ was given the option to resign or be terminated and he opted to resign. Docket # 125-6 at 122.
• A Dr. J___ whom Dr. Green alleges was the subject of "a complaint by nursing staff at [a] hospital for watching pornography during surgery." According to Ms. Handy's deposition, a Rose Medical Center representative reported that "one of our physicians was looking at pornography while working." The representative conducted an investigation and provided USAP with "evidence of [ ] what was going on or in the case." Ms. Handy testified that Dr. J___ was "no longer with [USAP] as a result of that incident," although she did not know whether Dr. J___ was terminated or whether he resigned. Docket # 120-37 at 167-69. In its reply brief, USAP tenders evidence that indicates that it terminated Dr. J___'s employment. Docket # 125-6 at 184.
• A Dr. W___, whom Dr. Green alleges was "not disciplined after [a] complaint at [a] hospital facility regarding sexist comments to nursing staff." Dr. Green cites to an e-mail chain in which Ms. Handy was notified by a hospital official that the hospital "would like to no longer see [Dr.] W___ for case coverage. He has made some sexist comments towards a nurse." That e-mail chain ends before USAP's investigation into the matter was concluded, but in its reply brief, USAP offers an affidavit from Ms. Handy that summarizes the matter. Ms. Handy's affidavit reports that a nurse at the hospital stated that "she and others feel uncomfortable with the way that Dr. W___ talks when they are all in a room together," describing an incident where a male nurse walked into a room that was otherwise occupied only by female nurses, causing Dr. W___ to state "Thank god, at least we'll get things done quicker around here." The nurse characterized Dr. W___ as creating a "male vs. female" environment. USAP spoke to Dr. W___, who stated that he had "no recall of anything that was negatively perceived," but felt that "he may have said something that was misinterpreted." He stated that "he feels really bad about the possibility that he may have offended someone" and that he "plans to be super careful around the [nurses]" going forward. The record seems to reflect that Dr. W___ accepted the hospital's request that he not be assigned there anymore, but that USAP took no further disciplinary action against him.
Of these instances, only Dr. W___'s situation requires substantial discussion. Dr. S___'s situation is inapposite, involving a dispute regarding the appropriateness of medical treatment, not alleged sexual harassment. Dr. R___ and Dr. J___'s situations both resulted in prompt terminations of employment (or, in Dr. R___'s case, a resignation in lieu of termination), meaning that they were not treated any differently from Dr. Green.
Consistent with the restriction on public access to certain items detailing alleged misconduct by third parties in this case, the Court's discussion will identify those individuals by initials.
The record does not clearly reflect whether USAP offered to allow Dr. Green to resign in lieu of termination in 2018. Even assuming he was not offered that option, the Court does not understand Dr. Green to argue that not being offered an opportunity to resign in lieu of termination is an adverse action capable of supporting a claim of discrimination.
Before turning to Dr. W___'s situation, the Court pauses here to more fully address the allegations that were made against Dr. Green in April 2018. The details of those allegations are somewhat vague, even in USAP's version of events. However, it seems to be undisputed that a nurse at a facility complained to her supervisors that Dr. Green "came up behind her and was rubbing her shoulders," making her "very uncomfortable." He also "made some joke about being single." Docket # 113-34 at 122. At his deposition, Dr. Green testified about a meeting he had with Ms. Handy and a Dr. Ceraso, on or about May 3, 2018, when those individuals were investigating the claims made by the nurse. Dr. Green initially denied engaging in the alleged conduct, but then stated that "I had been diagnosed with Autism Spectrum Disorder and I might have done something like what they suggested," although he still professed to not having any recollection of any such event. He testified that "if I did do it, it was possibly that some nurse looked upset or sad or something like that. So I said it might have been possible that I did that, but I didn't mean anything remotely sexual or anything to make someone feel [un]comfortable. In fact, the only reason as to why is that I care. I thought I would make them feel better and just being a nice person." Docket # 113-28 at 149-154. But Dr. Green's assertion that he "didn't mean anything remotely sexual" is at odds with the report that he accompanied the massaging with a comment about his status as a single person, which strongly suggests that he intended the massage to be perceived as flirtatious.
Ms. Handy testified that she was advised by the hospital that the nurse had filed a written complaint with the hospital, but she was unsure as to whether USAP ever received a copy of that written complaint. She testified that facilities "don't typically give us" witness names or other materials from their internal investigations. Rather, they simply inform USAP that "the investigation is complete and they don't want a physician working there any longer." Docket # 113-34 at 124.
The record includes notes from interviews the hospital conducted with the nurse and other witnesses that present a more detailed description of Dr. Green's interactions with the nurse. Those records indicate that the nurse complained that Dr. Green was "touchy" and attempted to touch her and massage her shoulders on many occasions over several months. He also made a multitude of flirtatious comments, including "You're hot and it's okay that you're tall too" and "I'm 50 and divorced, so you know where my mind is." The notes also indicate that a doctor at the hospital witnessed Dr. Green having "lingering hands" on the nurse's back while communicating or passing equipment, and that the doctor corroborated the nurse's report of Dr. Green commenting to the nurse that "I'm divorced, you know where my head is at." (A third witness also reported hearing this comment.) Docket # 125-7.
However, it is unclear whether and to what extent USAP was aware of these facts when it decided to terminate Dr. Green's employment. Although the interviews were conducted shortly after the April 2016 incident, the depositions of individuals such as Ms. Handy do not discuss these additional allegations and USAP's briefing seems to suggest that the interview notes were not produced by the hospital until discovery in this matter. See Docket # 124, ¶ 55. Because there may be some dispute as to whether USAP was aware of the contents of the interview notes at the time it decided to terminate Dr. Green, the Court will not consider these additional allegations as part of its analysis.
For purposes of determining whether employees are similarly-situated, such that a difference in their treatment might justify an inference of discrimination, the plaintiff must demonstrate that they violated work rules of comparable seriousness, that they dealt with the same supervisors, and were subject to the same standards of performance and discipline. Courts should also consider whether they have comparable work histories and employment circumstances. See Officer v. Sedgwick County, 226 Fed.Appx. 783 (10th Cir. 2007).
Here, the Court cannot conclude that Dr. W___'s situation is sufficiently similar to Dr. Green's, such that a factfinder could infer that USAP treated him more favorably because he is non-disabled. The misconduct presented in the two situations is qualitatively different. Dr. W___'s conduct involved only one offensive comment (or perhaps an unknown number of related comments) with general sexist overtones, but was not specifically directed at any particular victim. Dr. Green, by contrast, engaged in unwanted physical contact with a specific nurse and appeared to be propositioning her. In other employment contexts, courts differentiate between "conduct [that] is physically threatening or humiliating [versus] a mere offensive utterance." See e.g. Clark County School Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (discussing factors that determine whether workplace conduct is sufficiently severe and pervasive as to constitute a hostile working environment). Dr. Green's unwanted touching of the nurse falls on one side of that line, whole Dr. W___'s comments fall on the other, rendering them dissimilar.
Neither party has cited to any evidence that indicates whether Dr. W___ has any disabilities, but for purposes of this analysis, the Court will draw the inference favorable to Dr. Green that he does not.
Moreover, there is nothing in the record to suggest that Dr. W___ shared Dr. Green's precarious work status. At the time of the events, Dr. Green had already be stripped of his status as Partner because several medical facilities had revoked his privileges to work there, leaving USAP with fewer options as to what work it could assign to him. There can be little dispute that a physician with limited opportunities to practice at health care facilities is less valuable to their employer than a physician with a full or large slate of privileges. Nothing in the record suggests that Dr. W___'s privileges were as limited as Dr. Green's. Thus, USAP could reasonably conclude that Dr. W___ was, simply put, a more valuable employee to retain than Dr. Green, and that the discipline meted out to the two men could differ for that reason, entirely unrelated to Dr. Green's status as a disabled individual.
Thus, the Court finds that Dr. W___ was not similarly-situated to Dr. Green, such that one could infer disability discrimination from the fact that the two were disciplined differently for their misconduct. Nor does Dr. Green point to any other facts that might permit a factfinder to infer that his 2018 termination was the result of disability discrimination. He does not point to any contemporaneous statements by any USAP officials that would support an inference that his disability (either alcoholism or Autism Spectrum Disorder or both) was a factor in USAP's decision to terminate his employment. Notably, at the meeting convened by USAP to discuss the incident between Dr. Green and the nurse, Dr. Green told the USAP officials that he had been diagnosed with Autism Spectrum Disorder, offering that fact as an explanation for the situation with the nurse. Dr. Green testified that the USAP physician at that meeting, Dr. Ceraso, acknowledged that Autism Spectrum Disorder "means you can't read a room," a characterization of the condition that Dr. Green states "100 percent explained the situation and this whole everything . . . I just never could 'read a room.' " Docket # 113-28 at 150-51. In other words, Dr. Green does not allege that Dr. Ceraso, or any other USAP official, misunderstood or stigmatized the effects of Autism Spectrum Disorder, or even that USAP based its decision to terminate Dr. Green on the fact of that diagnosis. If anything, the record suggests that Dr. Ceraso might have considered Dr. Green's Autism diagnosis as a potential mitigating factor that might favor lesser discipline for Dr. Green (although it appears that USAP ultimately concluded that the diagnosis did not justify a penalty short of termination).
Dr. Green points to a March 24, 2016 e-mail in which a USAP official allegedly referred to Dr. Green as an "offender" in a meeting with a hospital administrator. The document Dr. Green refers to is an internal e-mail among USAP officials in which the author, Mary Watson, recaps a meeting she and another USAP official had with the hospital administrator. In describing one phase of the meeting, she writes "Peter went through our list of offenders first and actions we've taken on them: [ ] Green, S___."
The e-mail does not suggest that Ms. Watson characterized Dr. Green as an "offender" to the hospital administrator, rather than merely to other USAP staff. Regardless, the Court does not find that the characterization of Dr. Green as an "offender" can be construed to be a comment on his disability. Rather, it is clear that Ms. Watson was referring to Dr. Green's conduct - his alcohol relapse -- which had indeed violated the terms of Dr. Green's probation with CPHP. Any confusion on this point is resolved insofar as Ms. Watson characterized Dr. S___ as an "offender" as well. Dr. Green has tendered Dr. S___ as one of the non-disabled comparators who allegedly received more favorable treatment. It is clear that, in that context, Ms. Watson's use of the term "offenders" was describing USAP physicians who had been accused of misconduct or had violated policies and had therefore placed their medical privileges in jeopardy, regardless of whether they were disabled.
For these reasons, the Court finds that Dr. Green has not come forward with evidence that would raise an inference that his termination in 2018 was the result of disability discrimination, and thus, he is unable to establish a prima facie case on his ADA, CADA, and Rehab Act disparate treatment claims.
3. Pretext
Although the Court disposes of Dr. Green's disparate treatment claims at the prima facie stage, the Court would also grant summary judgment to USAP on those claims were it to reach the pretext stage. Assuming Dr. Green could establish a prima facie case, USAP has offered non-discriminatory reasons for the adverse actions it took against him: (i) that it terminated him as Partner because of his failure to re-obtain his privileges to practice at various medical facilities, and (ii) that it terminated his employment entirely because he engaged in unwanted physical contact with a nurse. Thus, it is Dr. Green's ultimate burden to demonstrate that those reasons are false and that the fact that he has a disability is the true reason for those actions. To establish pretext, Dr. Green would typically attempt to show "weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reason, such that a reasonable fact finder could deem the employer's reason unworthy of credence." Aubrey, 975 F.3d at 1015. At the same time, the Court is mindful that the question is not whether USAP's decisions are "wise, fair or correct," but only whether USAP "honestly believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs." Laul v. Los Alamos National Laboratories, 765 Fed.Appx. 434, 440 (10th Cir. 2019).
As to the termination of his Partner status, USAP's explanation is that, due to the loss of his privileges at various medical providers, Dr. Green was no longer capable of performing the amount and variety of work that USAP expected of Partners. As noted above, there is nothing particularly implausible about such a conclusion. The nature of Dr. Green's work is such that he performs it not on USAP's property, but in medical facilities that are owned and controlled by parties other than USAP, and his ability to perform work in those facilities is subject to the consent of those facilities. As he lost privileges at multiple facilities, his value to USAP diminishes, as he could no longer perform the breadth and volume of work that other Partner anesthesiologists can. In that circumstance, USAP's decision to reduce Dr. Green's compensation - by terminating his status as a Partner and assigning/paying him as an hourly employee instead - is an entirely logical and non-discriminatory reaction to Dr. Green's loss of privileges. Indeed, Dr. Green's loss of privileges at so many medical facilities, and the slow pace at which he recovered them, could arguably have justified USAP terminating Dr. Green's employment outright in August 2016. The fact that USAP continued to employ Dr. Green in such circumstances, despite knowledge of his alcoholism, strongly refutes any inference of discriminatory motivation, and Dr. Green has not come forward with any meaningful evidence that could restore that inference.
Dr. Green's ability to demonstrate pretext relating to the termination of his employment in 2018 is even more doubtful. Dr. Green's briefing does not make clear which of his disabilities he believed USAP relied upon when deciding to terminate his employment, but the record does not contain facts that permit an inference that either disability (or even the two combined) played any role in USAP's decision. By the time USAP terminated Dr. Green in late 2018, USAP had been aware of his alcoholism for more than two years, yet nevertheless retained him as an employee throughout that time. His continued employment despite USAP's awareness of his alcoholism disability strongly dispels any inference that his 2018 termination was motivated in any way by his alcoholism. Certainly, Dr. Green points to no new facts suggesting that USAP officials made any adverse comments about - much less even discussed - his alcoholism as part of their decision to terminate him in 2018.
Moreover, Dr. Green's attorney referenced his Autism diagnosis in correspondence with USAP in March 2017. Thus, USAP had knowledge of that disability for more than a year before it terminated Dr. Green in September 2018.
That leaves Dr. Green's disability of Autism Spectrum Disorder. Dr. Green raised that disability with Dr. Ceraso at the May 2018 meeting investigating the nurse's allegations against Dr. Green. As discussed above, however, the record reflects that Dr. Ceraso understood the nature of Dr. Green's Autism diagnosis and appeared to treat that diagnosis as evidence that might mitigate Dr. Green's culpability in the situation. Dr. Ceraso posited the fact that Dr. Green's Autism might have made it difficult for Dr. Green to "read the room" and act appropriately towards the nurse, and Dr. Green testified that he believed that assessment "100 percent explained the situation." Nevertheless, Dr. Ceraso decided to terminate Dr. Green's employment, apparently finding that Dr. Green's Autism did not sufficiently mitigate the situation. In such circumstances, the record indicates that USAP terminated Dr. Green's employment despite his disability, not because of it. See generally Brohm v. JH Properties, Inc., 947 F.Supp. 299, 301-02 (W.D. Ky. 1996) ("knowledge [of a disability by the employer] does not translate into evidence that the disability was the basis for the termination . . . An employee may not bootstrap his disease into the line of causation [ ] by showing that the misconduct relied on by the employer would not have occurred 'but for' the disability"). Moreover, Dr. Green has pointed to no evidence that suggests that any official at USAP disparaged, stigmatized, or otherwise expressed negative opinions about his status as a person diagnosed with Autism.
Dr. Green has not specifically identified which particular USAP official(s) made the decision to terminate his employment. That omission makes it particularly difficult for him to show that the decisionmaker(s) acted based on inaccurate beliefs about his disability. In deference to Dr. Green, the Court will assume that Dr. Ceraso and Ms. Handy, as the individuals who dealt with him most directly regarding the nurse's allegations, were the primary decisionmakers regarding his termination.
Thus, the Court would find that Dr. Green's disparate treatment claims would also fail at the pretext stage. USAP is therefore entitled to summary judgment on those claims.
C. Failure to Accommodate
The ADA, Rehab Act, and CADA all require an employer to grant "reasonable accommodations" to an employee with a disability, if such accommodations would allow the employee to perform the essential functions of their job despite their disability. See e.g. 42 U.S.C. § 12112(b)(5)(A). To establish a claim that an employer failed to accommodate an employee's disability, the employee must first show that: (i) he was disabled; (ii) that he was otherwise qualified for the position he held; (iii) that he requested a plausibly reasonable accommodation; and (iv) the employer refused to accommodate his disability. If the employee meets that burden, the employer must either come forward with evidence that rebuts one of those elements or demonstrate an affirmative defense that relieves the employer of the duty to accommodate. Dansie v. Union Pacific Railroad Co., 42 F.4th 1184 (10th Cir. 2022), citing Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020). Typically, the contours of any proposed reasonable accommodation are discussed by the parties in what is described as "the interactive process," by which the employee presents information about their disability to the employer and the parties discuss ways in which the employer might accommodate the employee's disability. Id., citing Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1252 (10th Cir. 2004).
The precise contours of Dr. Green's failure to accommodate claim are not clear. In the factual recitation in his brief, Dr. Green asserts a section under the heading "Defendants deny Dr. Green's interactive process request." Docket # 120 at 13. That section describes an exchange of correspondence between Dr. Green's counsel and USAP's counsel in March 2017. Dr. Green's attorney wrote to USAP's counsel, requesting that USAP "immediately reinstate him as a [ ] Partner retroactive to August 1, 2016, withdraw its correspondence [ ] claiming forfeiture of his USAP stock, and engage in the interactive process as required by law." The letter appeared to propose an accommodation by which "he be permitted to continue as a [ ] Partner at the facilities in which he has privileges to date and at those facilities which have indicated privileges will be reinstated in the future." Docket #120-19. USAP responded that it was "willing to continue the interactive process," but flatly rejected Dr. Green's requested accommodation of restoration to Partner status, explaining that Dr. Green having privileges at only four of 18 assigned facilities meant that he was unable to fulfill the essential job functions of a Partner. Docket #120-20. It noted that it "has accommodated Dr. Green [ ] by permitting him to work a reduced hours schedule at the facilities where he has privileges to practice medicine."
But in the body of Dr. Green's brief, he describes his failure to accommodate claim differently. Under the heading "Dr. Green proposed reasonable accommodations and Defendants failed to engage in the interactive process," he refers to three different incidents: (i) that "when his [leave to pursue rehabilitation] was coming to a close, he reached out to Ms. Watson for assistance with [ ] credentialing issues," but she "undertook no efforts to assist Dr. Green with his credentialing"; (ii) that he "sought Dr. Harkness' guidance and assistance" in his re-credentialing efforts, but Dr. Harkness "felt that Dr. Green needed to get 'in the door' at facilities first"; and (iii) that via the March 2017 correspondence between counsel, Dr. Green "proposed reasonable accommodations" that USAP refused.
In the interests of completeness, the Court will address each of Dr. Green's three purported denials of reasonable accommodations separately. As to the contention that Dr. Green asked Ms. Watson to assist him with re-credentialing, the Court notes that Dr. Green cites to no evidence in the record for his proposition that "Ms. Watson undertook no efforts to assist him." Docket # 120 at 35. At another point in his brief, Dr. Green contends that USAP officials "were, at most, selectively providing credentialing assistance to [him]." Docket # 120 at 30. He supports this contention with a citation to two e-mail chains. One, from June 2017, involved Dr. Green asking Leora Brewer, USAP's Credentialing Manager, if the attorney assisting him with applying for credentials at Porter and Parker Hospitals could contact her. Ms. Brewer forwarded that e-mail to Ms. Watson, stating "I wanted to confirm with you both that we should be assisting Dr. Green in obtaining privileges at Parker and Porter." Ms. Watson, in turn, wrote to other officials stating "I wanted to check from your vantage point if we are trending positively to assist [Dr.] Green in obtaining privileges again at Parker and Porter. [Another official] felt that we were good there, just don't know if they will approve or process on their end." Shortly thereafter, Ms. Brewer wrote to Ms. Watson stating "I actually spoke with [another official] about this issue yesterday to get the goahead that we should proceed. I will respond to [Dr. Green's e-mail] this week and assist him in this process." Docket # 120-22. Dr. Green argues that this e-mail chain indicates "selective assistance," but the Court finds that the e-mail chain does not bear that weight. It merely reflects that members of USAP sought guidance from their superiors regarding how to proceed with Dr. Green's request for assistance and that they were ultimately instructed to grant him that assistance. One might criticize USAP as being hierarchical and hidebound, such that it required several steps to obtain confirmation that Dr. Green should receive assistance, but nothing in this e-mail chain indicates that USAP actually withheld the assistance that Dr. Green had requested.
The second e-mail chain in the exhibit is from November/December 2017, but it is relevant only for a comment made by Ms. Brewer in a December 6, 2017 e-mail. After answering a question from another USAP official about a different issue with Dr. Green's credentials, Ms. Brewer wrote "We did receive an application from Centura [a medical provider], but I forwarded to Marty and Paul Dumas first since I was not sure how this was requested and if we should move forward considering our current situation." Once again, the e-mail simply reflects Ms. Brewer seeking advice from superiors regarding her assistance in Dr. Green's applications to re-obtain his medical privileges at providers. The record does not reflect what response Ms. Brewer received to this e-mail, but Dr. Green has not pointed to any evidence that suggests that USAP did not respond favorably to the inquiry from Centura. Again, all Dr. Green has shown with this e-mail is that Ms. Brewer did not feel authorized to make decisions on her own about assisting in his credentialing requests. But that is far cry from adducing evidence that indicates that USAP failed to assist Dr. Green in his attempts to regain his medical privileges.
Dr. Green's second item purportedly supporting his failure to accommodate claim is single sentence in his response brief: "Dr. Green also kept Dr. Harkness apprised of his re-credentialing efforts and sought Dr. Harkness' guidance and assistance, but Dr. Harkness felt that Dr. Green needed to get 'in the door' at facilities first." Dr. Green's briefing does not elaborate on this incident, much less explain how it demonstrates USAP's failure to accommodate him. A small amount of illumination is gained from reviewing the relevant portion of Dr. Harkness' deposition, which is the only evidence Dr. Green cites to in support of this contention. The cited portion of the deposition concerns inquiry of Dr. Harkness regarding a document Dr. Green wrote to Dr. Harkness, reporting that a particular representative of Denver HCA - apparently a medical provider - had instructed Dr. Green that she could not speak to him about a particular subject and that Dr. Green had to contact "the Medical Staff President or HCA Legal" to continue whatever subject matter Dr. Green was pursuing. (Dr. Green has not pointed to where, if anywhere, this correspondence can be found in the extensive record before the Court.) The record does not suggest that Dr. Harkness had any involvement with the representative's comment, and he speculated that Denver HCA gave that instruction because Dr. Green had his own lawyer and that "meant that HCA [felt it] needed a lawyer" as well. Dr. Harkness was asked if he could have contacted HCA's Medical Staff President on Dr. Green's behalf, and Dr. Harkness admitted that he could have, but didn't. Asked to explain why, Dr. Harkness stated "I didn't feel like I'm being asked to, and I think that it is kind of [Dr. Green's] fight to get into the door." Dr. Harkness went on to explain that he had personally interceded on Dr. Green's behalf with the CEO of another hospital that he knew personally and saw on a frequent basis, but he did not do so with the Medical Staff President of HCA because Dr. Harkness did not know that person.
Once again, this Court cannot conclude that this evidence suffices to establish a question of fact as to whether USAP failed to accommodate Dr. Green's alcoholism. The record reflects that Dr. Harkness personally assisted Dr. Green in seeking re-credentialing when Dr. Harkness had close relations with officials at the facilities where Dr. Green was applying. That fact alone would seem to rebut Dr. Green's argument that USAP failed to accommodate him. But where Dr. Harkness had no personal relationship to exploit on Dr. Green's behalf (and where the record is undisputed that Dr. Green apparently did not specifically request Dr. Harkness' assistance), Dr. Harkness relied on Dr. Green to "fight to get into the door" himself. That fact reflects nothing more than Dr. Harkness' conclusion that his intercession would be of no meaningful assistance to offer Dr. Green on the unfamiliar turf of Denver HCA. Certainly, Dr. Green does not point to any evidence that suggests that contrary to Dr. Harkness' testimony, that Dr. Harkness had some special pull with Denver HCA that he could have leveraged on Dr. Green's behalf, but did not.
Finally, Dr. Green points to his counsel's March 2017 letter to USAP, arguing that it proposed reasonable accommodations that USAP rejected. The only accommodation that letter proposed was "that he be permitted to continue as a [ ] Partner at the facilities in which he has privileges to date and those facilities which have indicated privileges will be reinstated in the future." In other words, Dr. Green's proposed accommodation was one that would waive USAP's requirement in the Partnership Agreement that Dr. Green "acquire and maintain privileges" at "most, if not all the hospitals in which [USAP] provides anesthesia services" (and at which he had previously held privileges), and would require USAP to waive its requirement that Partners participate in on-call shifts. As the preceding discussion indicates, the undisputed evidence is that those requirements are "essential functions" of the position of a Partner. An employee's request that an employer waive or omit an essential function of a position cannot, as a matter of law, be a reasonable accommodation. Punt v. Kelly Servs., 862 F.3d 1040, 1051 (10th Cir. 2017). Thus, the request in Dr. Green's March 2017 letter was not one seeking a reasonable accommodation.
Moreover, the record reflects that USAP did reasonably accommodate Dr. Green's alcoholism. As discussed above, Dr. Green was not capable of meeting the essential functions of his position as a Partner, because he could not maintain privileges at the majority of facilities at which he previously worked. At that point, USAP was within its rights under the ADA to terminate his employment out-right. But USAP instead chose to allow Dr. Green to essentially "transfer" to a different position - hourly anesthesiologist - whose essential functions he could perform. That transfer was, apparently, of indefinite duration, as Dr. Green was able to occupy that position for nearly two years. Thus, by offering that position, USAP discharged its duties under the "reasonable accommodation" doctrine. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999) (doctrine "requires the employer to use reasonable accommodation to keep the employee in his or her existing job, and if that cannot be accomplished, to use reasonable accommodation to offer a reassignment to another vacant job which that person would be qualified to perform with or without a reasonable accommodation. Once the employer has offered such a reassignment, its duties have been discharged"). Although the hourly position paid less than his position as Partner did, an employer may reassign a disabled employee to a lower-paid position if the employee cannot be accommodated in their current position (or other equivalent positions) due to their inability to perform the requisite essential functions. Id. at 1177, citing Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998). Thus, the record indicates no genuine dispute of fact and that USAP is entitled to summary judgment on Dr. Green's failure to accommodate claims.
D. Retaliation
To establish a claim for retaliation under the statutes, Dr. Green must first establish a prima facie case by showing: (i) he engaged in protected activity by complaining about conduct by USAP that allegedly violated anti-discrimination laws; (ii) that he suffered an adverse action; and (iii) that the adverse action occurred in circumstances supporting an inference that it was caused by the protected conduct. If Dr. Green satisfies that burden, USAP must articulate a legitimate, not-retaliatory reason for the adverse action, and Dr. Green bears the ultimate burden to demonstrate that that reason is a pretext for retaliation. See e.g. Litzsinger v. Adams County Coroner's Office, 25 F.4th 1280, 1287 (10th Cir. 2022); Herrmann v. Salt Lake City Corp., 21 F.4th 666, 679 (10th Cir. 2021).
Here, Dr. Green's first complaint to USAP that its actions constituted disability discrimination can be found in his counsel's March 15, 2017 letter to USAP. That letter complained of the termination of Dr. Green's status as Partner and stated that USAP "appears to be disregarding employer obligations under federal and state anti-discrimination law" relating to disabilities. Dr. Green filed a formal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 30, 2017. Finally, Dr. Green commenced this lawsuit on August 27, 2018. All of these actions constitute protected conduct for purposes of a retaliation claim.
On August 25, 2016, another attorney representing Dr. Green wrote to USAP, challenging USAP's ability to revoke Dr. Green's USAP stock under the terms of the Partnership Agreement. That argument was contractual in nature, namely, about whether Dr. Green met the agreement's "disability of physician" exception to stock forfeiture. At no point did Dr. Green's counsel contend that USAP was violating (or about to violate) the ADA or other anti-discrimination laws relating to disabilities. Thus, the Court does not construe the August 2016 letter as constituting protected conduct under any of the anti-discrimination statutes at issue here.
The adverse actions at issue in this case consist of the termination of Dr. Green's Partner status on August 1, 2016, and USAP's termination of his employment on September 11, 2018. Thus, the question is whether Dr. Green can show that those adverse actions were causally-connected to his protected conduct. Although an employee may show a causal connection in a variety of ways, one of the most common is to show that the adverse action followed closely in time after the protected conduct, e.g. within a month or two. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
Here, nothing in the record indicates that Dr. Green engaged in any protected conduct prior to the termination of his Partner status. Thus, the Court cannot conclude that the decision to terminate that status supports any inference of retaliation. The same cannot be said of the September 2018 termination of Dr. Green's employment with USAP. That action occurred only about two weeks after Dr. Green had commenced this lawsuit. Thus, the Court finds that Dr. Green has stated a prima facie case of retaliation as to his 2018 termination.
The Court then turns to USAP's contention that Dr. Green was terminated as a result of the complaint of improper conduct against him by a nurse at The Medical Center of Aurora ("TMCA") in April 2018. This is a legitimate, non-retaliatory reason for Dr. Green's termination, and thus, Dr. Green bears the burden of proving that this reason is false and a pretext for retaliation. The Court finds that the record does not demonstrate that Dr. Green can carry that burden.
The undisputed record indicates that although Dr. Green was terminated on September 11, 2018, about 14 days after he commenced this lawsuit, USAP had already begun preparing to terminate Dr. Green as early as July 2018, long before Dr. Green's filing of this suit. On July 23, 2018, Ms. Handy sent an e-mail to another USAP official about Dr. Green, stating that she had already received "conditional approval from [USAP's Board] to term[inate Dr. Green] if TMCA tells him he can no longer work at that location[. W]e have the 2/3 vote to term[inate]." On August 1, 2018, TMCA officials contacted USAP and advised that their investigation into the event was complete, and that Dr. Green was "permitted now to return to Aurora South without restrictions," but that "due to the conflict, [ ] he is not [to be] sent to the ECT lab on the North campus." Matthew Maloney, a USAP Board member testified that the Board resolved to seek Dr. Green's termination during a meeting on August 16, 2018. Dr. Maloney explained that "the discussion was: He can only go to a handful of places now. Here is another one he can't go to. Plus, we have an accusation of an inappropriate action with a staff member. And options were to terminate or not to terminate, and we made a determination to terminate him." This decision, too, predated Dr. Green's filing of this lawsuit. The record appears to reflect that the decision to terminate was not formalized until another Board meeting on September 11, 2018, after Dr. Green had commenced this action, but the record clearly discloses that USAP had decided to terminate Dr. Green and was already moving towards formalizing that decision before Dr. Green engaged in the protected activity that supports his retaliation claim.
That same e-mail contains an "update," reflecting a message Dr. Green left for Ms. Handy about the situation. He stated that he "met with TMCA and was asked to sign a remediation agreement his attorney is reviewing)," but that, "according to him, there will be no further work limitations." Ms. Handy wrote in the e-mail that she would "need to confirm with TMCA." As noted herein, Dr. Green's prediction of "no further work limitations" turned out to be inaccurate.
Under these circumstances, the Court finds that no reasonable factfinder could return a verdict in favor of Dr. Green on his retaliation claim. Dr. Green's evidence that USAP's proffered reason for his termination is a pretext for retaliation is exceedingly thin. Dr. Green effectively admits to engaging in the unwanted physical contact the nurse complained of, with Dr. Green only suggesting that he misunderstood the situation. In support of his claim that USAP's justification for his termination is a pretext for retaliation, Dr. Green relies almost entirely on temporal proximity - the fact that his formal termination date occurred shortly after he filed this lawsuit. But temporal proximity alone is typically insufficient to assist an employee at the pretext stage. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 976 (10th Cir. 2017). Moreover, there is substantial and undisputed evidence that USAP's decision to terminate was actually made before Dr. Green engaged in the protected activity. Under these circumstances, the Court concludes that Dr. Green cannot show that USAP's proffered reason for his 2018 termination is a pretext, and USAP is entitled to summary judgment on Dr. Green's retaliation claims.
Dr. Green's briefing argues that USAP had been aware of the nurse's accusations against Dr. Green since May 2018, but waited more than four months to terminate him, suggesting that USAP's proffered reason is implausible. But as Dr. Maloney explained, USAP's decision to terminate was primarily driven by the fact that TMCA's North Campus became yet another facility at which Dr. Green would not be able to practice. It is undisputed that August 1, 2018 was when TMCA first advised USAP of its decision to prohibit Dr. Green from practicing at the TMCA North Campus. Dr. Green goes on to argue that, even so, USAP waited more than a month, from August 1, 2018 until September 11, 2018 to effectuate his termination. But as discussed herein, the record reflects that Dr. Maloney was already proposing Dr. Green's termination by August 16, 2018, shortly after TMCA advised USAP of its decision.
Dr. Green also argues that his filing of the lawsuit on August 26, 2018 prompted a "flurry of e-mails discussing the lawsuit" among USAP officials, and he cites to those e-mails as evidence that USAP's proffered reason for his termination is a pretext for retaliation. It is true that Docket # 120-19 contains numerous e-mails among various USAP officials and agents in the days after August 26, 2018, each with the subject line "New case filed: US Anesthesia Partners." But the contents of these e-mails are entirely redacted, presumably on attorney-client privilege grounds. Without any evidence of the e-mails' contents, the mere fact that e-mails were exchanged among USAP officials in response to Dr. Green's filing of a lawsuit is not a basis to infer any retaliatory intent on USAP's part.
E. Breach of contract
Dr. Green's last remaining claim sounds in common-law breach of contract under Colorado law, alleging that USAP breached the terms of the Partner Agreement. Because the Court has now disposed of all of Dr. Green's federal statutory claims over which it had original jurisdiction, 28 U.S.C. § 1367(c)(3) suggests that the Court should decline to exercise supplemental jurisdiction over the breach of contract claim. See e.g. Crane v. Utah Dept. of Corrections, 15 F.4th 1296, 1314 (10th Cir. 2021) ("When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining state claims") (emphasis added). The Court would not have independent subject-matter jurisdiction over this claim pursuant to 28 U.S.C. § 1332, insofar as the Complaint concedes that both Dr. Green and USAP are citizens of Colorado. Although the Court has examined the Partner Agreement at some length for other purposes in this case, the arguments at issue in the breach of contract claim require a degree of examination of the language of the contract beyond that which the Court has already considered that document. In such circumstances, the Court declines to exercise supplemental jurisdiction over the breach of contact claim and dismisses it for lack of subject-matter jurisdiction.
Were the Court to reach the merits of USAP's request for summary judgment on that claim, the Court would find that Dr. Green failed to perform his obligations under the Agreement and thus, that USAP is entitled to summary judgment on this claim as well.
F. Remaining motions
Dr. Green moves (# 127) to strike a portion of USAP's reply brief or, in the alternative, seeks leave to file a sur-reply. The issues raised in that motion concern arguments and evidence in USAP's reply brief that the Court did not consider in reaching its decision here, and thus, Dr. Green's motion is denied as moot.
USAP has filed two motions (# 127, 131) seeking to restrict access to certain exhibits attached to the parties briefs. Giving due consideration to the principles set forth in D.C. Colo. L. Civ. R. 7.2, the Court finds that the cited exhibits generally entail private medical information where the privacy interests outweighs the public interest in access to their contents. Accordingly, the motions to retain public restrictions on those filings is granted.
CONCLUSION
For the foregoing reasons, USAP's Motion for Summary Judgment (# 113) is GRANTED IN PART, insofar as the Court grants summary judgment to USAP on all of Dr. Green's claims arising under the ADA, Rehab Act, and CADA. The Court declines to exercise supplemental jurisdiction over the remaining claim for breach of contract, and DISMISSES that claim for lack of subject-matter jurisdiction. Dr. Green's Motion to Strike (# 127) is DENIED AS MOOT. USAP's Motions for Leave to Restrict (# 127, 131) are GRANTED, and the provisional restrictions on public access in this case shall remain in place.