Opinion
2:18-CV-01368-MJH
05-07-2021
RUSSELL E. KLING, M.D.; Plaintiff, v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER, UNIVERSITY HEALTH CENTER OF PITTSBURGH, VU T. NGUYEN, M.D.; Defendants,
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
This civil action was initiated by Plaintiff Russell E. Kling, M.D. (“Plaintiff”) arising out of Defendants University of Pittsburgh Medical Center, University Health Center of Pittsburgh d/b/a UPMC Medical Education and Vu T. Nguyen, M.D.'s (“Dr. Nguyen”) (collectively “Defendants”) decision not to renew Plaintiff's appointment in the Integrated Plastic Surgery Residency Program allegedly based on his disability.
Now before the Court for consideration is Defendants' motion for summary judgment (ECF No. 83). The motion is fully briefed and ripe for consideration. (ECF Nos. 84, 91 and 96). The court has subject matter jurisdiction under 28 U.S.C. § 1331.
For the reasons below, it is respectfully recommended that Defendants' motion for summary judgment be granted in its entirety and judgment be entered in favor of Defendants.
II. REPORT
a. Background 1. The Residency Program
Defendant UPMC Medical Education a.k.a., the Graduate Medical Education program (“GME”) operates a six-year Integrated Plastic Surgery Residency Program (“Residency Program”) where residents receive a one-year appointment agreement and renewal to the year after and it is conditioned upon satisfactory performance. Defs' Statement of Material Facts (“Defs' SMF”) (ECF No. 85) at ¶¶ 1, 15, 17, 24, 34. Defendants claim that the Residency Program is an extremely competitive specialty and receives about 300 applications each year for three Residency Program slots. Id. at ¶ 3. During the Residency Program, residents rotate through various services within the Plastic Surgery Department under the supervision of faculty and attending physicians. Id. As residents progress through the Residency Program, they are expected to show increasing levels of proficiency in several competencies (“Residency Program Competencies”) that are measured in accordance with milestone guidelines established by the Accreditation Council of Graduate Medical Education. Id. at ¶ 5. The Residency Program Competencies include the following: Patient Care and Procedural Skills; Medical Knowledge; Practice-based Learning and Improvement; Interpersonal and Communication Skills; Professionalism; and Systems Based Practice. Id. at ¶ 5. Residents take an in-service examination, an annual written or electronic examination that assesses residents' medical knowledge that compares them to residents nationwide and places them into a national percentile. Id. at ¶ 6.
The Residency Program's Clinical Competency Committee (“CCC”) was formed in 2014 and is directed by the American College of Graduate Medical Education and includes seven educational physicians in the Department of Plastic Surgery, including Defendant Dr. Nguyen. Id. at ¶¶ 7-8. The CCC examines resident performance, adjudicates issues with resident performance and has the final authority to determine whether a resident graduates the Residency Program. Id. at ¶¶ 9-10. The CCC meets every six months to evaluate residents on a semi-annual basis (“SemiAnnual Review Meetings”) and may otherwise meet to discuss specific performance issues and decide on not advancing residents. Id. at ¶¶ 11-12.
2. Plaintiff's Placement and Performance in the Residency Program
Plaintiff began his employment with the GME as a post-graduate resident for a term of one-year from June 2014 through June 2015 at the Residency Level 1 (“R1”) under a written appointment agreement. Id. at ¶ 17. Under the agreement, renewal or extension of the agreement “is dependent upon satisfactory progress by the Resident/Fellow Physician as determined solely by evaluation of the Resident/Fellow's performance by the Residency Program Director and faculty.” Id. at ¶ 19. The agreement also provides that residents “who fail to improve may be required to extend their training, or may be placed on probation, suspended, or terminated.” Id. at ¶ 20. Plaintiff engaged in a diverse set of rotations, allowing him to get basic experience in a broad range of surgical and medical fields. Id. at ¶ 22. According to one CCC member, a first-year residency is very basic, and it is very rare for a resident to show a deficiency in their first year of training. Id. at ¶ 23.
After completing his first year of the Residency Program, Plaintiff's appointment was renewed for a second year for a one-year term beginning in July 2015 through June 2016. Id. at ¶ 24. The second-year contract incorporates by reference all the terms, conditions, obligations and expectations of the original agreement. Id. at ¶ 25.
During Plaintiff's second year residency, he had performance deficiencies related to patient care. Id. at ¶ 26. Plaintiff's Plastic Surgery In-Service Exam score was marginal, with relative scores in the 41st percentile among national test takers in an integrated plastic surgery at his level of training, which Defendants claim is substandard. Id. at ¶ 27. Because of his scores, Plaintiff was asked to meet with the Resident Fellows & Assistance Program (“REAP”) to undergo help with the test-taking expert. Id. at ¶ 28. Plaintiff's deficiencies were also noted on several Reconstructive Service evaluations by several physicians. Id. at ¶ 29. One evaluation contained the following comment:
[Plaintiff's] surgical skill need[s] a lot of improvement and at times he lacks special and 3D thinking required by plastic surgery. But overall he is able to operate by himself in the ER on simple things. We will need to monitor him closely both at attending and at chief resident levels. But he can proceed to next level, as this would give him initiative to step up his game.Id. at ¶ 30. In his second resident year, Plaintiff had substandard elements but was not found to be globally deficient at that time. Id. at ¶ 31.
Plaintiff matriculated into his third year of residency, and his appointment was renewed for a third year for a one-year term beginning in July 2016 through June 2017. Id. at ¶ 34. Starting in Plaintiff's third year, Defendant Dr. Nguyen began serving as the Program Director for the Residency Program. Id. at ¶ 33. The third year of the Residency Program is considered a critical year, as residents rotate through several core plastic surgery rotations, including breast service, Children's Hospital service, and reconstructive service, they are expected to operate on a more independent level, manage patients both preoperatively and postoperatively, and evaluate emergency patients. Id. at ¶¶ 35-36. According to Defendants, if the residents are having problems developing these technical skills and working through the steps for an operation, the third year is a time when it will become very apparent. Id. at ¶ 37.
According to Plaintiff, he and Defendant Dr. Nguyen had a strained professional relationship during the first several weeks of his third year of residency. Plaintiff testified: “I felt constant pressure, constant anxiety. I felt pursued. I felt like he was being invasive in terms of trying to look into my past applications to the program.” Id. at ¶ 38. Plaintiff received rotational evaluations following the first six weeks of his first rotation which reflected that he did not meet expectations: he routinely or at times failed to meet expectations in clinical performance in several competencies including Patient Care and Medical Knowledge. Id. at ¶ 39. Defendant Dr. Nguyen observed that at the level of a third-year resident, Plaintiff “exhibited a technical skill of probably a medical student or an early first year resident, in that the most basic tasks were difficult for him” including “cutting on a straight line or closing a simple laceration” and exhibited an inability to carry on an operation and move from one step to the other, and after being shown and instructed, to repeat the steps again. Id. at ¶¶ 40-42.
On August 10, 2016, Plaintiff had his first formal meeting with Defendant Dr. Nguyen, a physician faculty member, and the Administrative Chief Resident to discuss his performance during the first several weeks of his rotation. Id. at ¶ 43. During the meeting, Plaintiff was told that he was exhibiting performance deficiencies, specifically in medical knowledge, patient care, operative technique and communication. Id. at ¶ 45. Defendant Dr. Nguyen asked Plaintiff if there were any social, medical, chemical or family issues impacting his performance because his performance was so substandard that the GME wanted to make sure that there were not any outside factors that affected his performance. Id. at ¶ 47. Plaintiff denied that any such factors affected his performance. Id. at ¶ 48. Plaintiff was placed on an individualized remediation/performance plan (“IEP”), which is a disciplinary action intended to help a resident overcome performance issues that may be impeding progress in the program and an informal performance evaluation meeting was scheduled for September 2016. Id. at ¶¶ 49-52. As part of the IEP, Plaintiff was provided with a faculty advisor and was to meet weekly with a faculty member concerning his performance. Id. at ¶¶ 54-55. On September 12, 2016, Plaintiff went to his first RFAP appointment, in which he signed a release to allow the GME to discover whether Plaintiff kept his appointments, was compliant with any course of recommended treatment, and if treatment would require any time off from work. Id. at ¶ 58. According to the notes from the RFAP appointment, Plaintiff reports that “his reading is not very fast and it hurts his performance/studying. He was given extra time to take his SAT's but has not been given any accommodation since then . . . He thinks he has somewhat of a learning disability.” Id. at ¶ 59. The notes also reflect that Plaintiff acknowledged the criticism he received about his performance was “about half fair.” Id. at ¶ 60.
On September 14, 2016, Plaintiff met with Defendant Dr. Nguyen, another physician faculty member and the Administrative Chief Resident to discuss two patient care incidents involving Plaintiff where Plaintiff was told he could be placed on probation. Id. at ¶¶ 61-64. One issue involved a head and neck flap surgery and the other involved an incident in which Plaintiff created a pneumothorax in a patient. Id. at ¶ 63. As of this meeting, Plaintiff had not explicitly disclosed any disability he allegedly suffered to Defendants. Id. at 65.
On October 10, 2016, Plaintiff met with Defendant Dr. Nguyen and another physician faculty member to discuss his clinical performance. Id. at ¶ 66. At this meeting, Plaintiff presented a letter noting a reading comprehension learning disability for which he had received accommodations. Id. at ¶¶ 67-70. After this, the Residency Program sought to obtain documentation of Plaintiff's learning disability without success. Id. at ¶ 71. Thereafter, the Residency Program decided to request that Plaintiff submit to a psychiatric evaluation. Id. at ¶ 72.
On December 16, 2016, Plaintiff had his semi-annual performance review to review evaluations from his first two rotations. Id. at ¶ 74. Two days later, on December 18, 2016, Plaintiff requested an accommodation of a remedial year for his previously disclosed learning disability. Id. at ¶ 78. On December 21, 2016, the Residency Program requested that Plaintiff send official documentation of his learning disability that day from the psychologist/psychiatrist who evaluated and diagnosed him. Id. at ¶¶ 79.
That same day, on December 21, 2016, the CCC met and discussed the significant concerns regarding Plaintiff's lack of clinical improvement and his overall ability to successfully complete the Residency Program along with continued concerns regarding issues of individual patient safety. Id. at ¶ 81. The CCC considered Plaintiff's immediate termination due to safety issues/concerns, contract non-renewal or to provide Plaintiff a remediation year. Id. at ¶ 82. Under GME policy, four months written notice must be given to a resident whose appointment will not be renewed. Id. at ¶ 83. Before the CCC made a final decision, they wanted more documentation of Plaintiff's learning disability and decided to reconvene in February 2017 prior to the deadline for contract renewal. Id. at ¶¶ 84-85. The CCC directed Plaintiff to submit to a neuropsychological evaluation. Id. at ¶ 86. Plaintiff consented to a neuropsychological evaluation which reflects that Plaintiff was not receiving health care services from the evaluating physician and that the evaluating physician was not a “covered entity” under the Health Insurance Portability and Accountability Act (HIPAA). Id. at ¶ 87.
Plaintiff underwent a neuropsychological evaluation (“Neuropsych Assessment”) to determine whether he had a learning disability that warranted academic accommodations in the Residency Program. Id. at ¶ 89. While Plaintiff had been previously evaluated for learning problems, no past neuropsychological or psychoeducational records had been provided when the Neuropsych Assessment was conducted. Id. at ¶ 90. The Assessment concluded that Plaintiff had a longstanding learning disability that impacts his nonverbal memory, visual-spatial skills and his learning in reading and mathematics. Id. at ¶¶ 92-93. The Assessment also noted that Plaintiff's visual-spatial deficits may interfere with his ability to perform complex surgical procedures and noted that a remedial year of highly focused accommodations and interventions “may” provide adequate learning to support to succeed in Plaintiff's chosen medical specialty or Plaintiff would benefit from receiving mentorship with the goal of collaboratively reassessing his area of medical specialty or reconsideration of his overall career path. Id. at ¶ 99.
In February 2017, the Neuropsych Assessment evaluating physician spoke to the CCC about her evaluation and suggested to the CCC that she did not feel that Plaintiff was a good fit for surgery or perhaps even medicine. Id. at ¶ 101. The CCC unanimously agreed that Plaintiff could not become an independent, competent plastic surgeon and decided not to renew Plaintiff's appointment in the Residency Program. Id. at ¶ 103. Defendants assert that the linchpin of their decision reflected Plaintiff's overall performance in the program, including his deficiencies of skills in many aspects of his performance and his failure to show a progression of those skills during his third-year residency. Id. at ¶ 104. In a letter dated February 24, 2017, Plaintiff was informed that his Residency Program appointment would not be renewed and the letter cited four areas of concern: (i) a lack of medical knowledge; (ii) ongoing difficulty processing medical information and using it properly in the context of safe and competent care; (iii) technical difficulty significantly below expected despite repetitive instructions; and (iv) and overall lack of communication among the patient care team. Id. at ¶¶ 106, 109. Nonrenewal is considered a disciplinary action. Id. at ¶ 107.
On April 20, 2017, a disagreement arose between Plaintiff and Defendant Dr. Nguyen about whether Plaintiff had been placed on probation after Plaintiff saw a document referencing that he had been placed on probation. Id. at ¶ 110. On or about May 11, 2017, Plaintiff wrote a letter to Defendant Dr. Nguyen to aggrieve his probation status. Id. at ¶ 111. After a meeting, Plaintiff was informed that the GME had granted Plaintiff's grievance and that future correspondence would not reflect that Plaintiff had been placed on probation. Id. at ¶ 114. Defendant Dr. Nguyen and other physician faculty members believed that Plaintiff had been placed on academic probation though it is unclear from the record how the decision to place Plaintiff on probation came about. Id. at ¶ 112.
On May 24, 2017, Plaintiff was placed on administrative leave to find alternative work and received full salary and benefits throughout his administrative leave. Id. at ¶¶ 122-24. Plaintiff received full academic credit for his third-year residency. Id. at ¶ 125.
On May 31, 2017, Dr. Nguyen issued a letter to All Med Medical & Rehabilitative Centers about Plaintiff's candidacy for employment with the Center. The letter stated in total:
This letter is in regards(sic) to [Plaintiff] and his candidacy for a position within your program. I have known [Plaintiff] since he matched into our Integrated plastic surgery residency program in July of 2014. Since then, he successfully completed a rotating surgical internship (PGY1) from 2014-2015 and his PGY2 training year from 2015-2016. During his third year of clinical training, 2016-2017, it became apparent that he was not progressing adequately. [Plaintiff] exhibited issues with integrating information and in clinical decision making. He also exhibited deficits in visual-spatial orientation and technical ability. Lastly, there were issues surrounding his trustfulness and overall professionalism. Despite attempts at an individualized educational plan and remediation, it was the determination of our Clinical Competency Committee that [Plaintiff] would not be able to successfully complete his residency training and he was ultimately notified on February 24, 2017, that his contract would not be renewed for the PGY4 postgraduate training year. [Plaintiff's] last day of employment with UPMC Medical Education in our training program was June 30, 2017. Please let me know if I can provide any additional information.(ECF No. 91-19 at 2). Plaintiff received an unrestricted license to practice medicine in Pennsylvania on June 14, 2017 and his last day in the Residency Program was June 30, 2017. Id. at ¶¶ 121, 125.
Plaintiff initiated the instant action alleging that Defendants discriminated against him based on his disability by terminating him from the Residency Program in violation of the Americans with Disability Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), the Rehabilitation Act Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. (“RA”) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq. (“PHRA”) (Count I), retaliated against him for requesting reasonable accommodations and filing a grievance in violation of the ADA, RA and PHRA (Count VI), failed to accommodate him in violation of the ADA, RA and PHRA (Counts II and III), made an illegal medical inquiry in violation of the ADA and the RA (Count IV), illegally disclosed Plaintiff's handicap or disability in violation of the PHRA (Count V), and tortiously interfered with prospective contract in violation of Pennsylvania law (Count VII).
Plaintiff's claim for negligent infliction of emotional distress was previously dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
b. Standard of Review
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 24748. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor on that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citing Huston, 568 F.3d at 104).
A plaintiff may not, however, rely only on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made with no evidentiary support may be disregarded. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
c. Discussion
1. The McDonnell Douglas Framework in Disability Discrimination and Retaliation Claims
The ADA was enacted in 1990 “in an effort to prevent otherwise qualified individuals from being discriminated against in employment based on a disability.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998). “A discrimination claim under the ADA is analyzed under the familiar burden shifting of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).” Rubano v. Farrell Area Sch. Dist., 991 F.Supp.2d 678, 699 (W.D. Pa. 2014). Likewise, the McDonnell Douglas framework applies equally to claims of retaliation based on disability. Walton v. Mental Health Ass'n. of Se. Pennsylvania, 168 F.3d 661, 667-68 (3d Cir. 1999).
“The PHRA is basically the same as the ADA in relevant respects and Pennsylvania courts. . . generally interpret the PHRA in accord with its federal counterparts.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002). Furthermore, “[t]he elements of a claim under § 504(a) of the Rehabilitation Act are very similar to the elements of a claim under Title I of the Americans with Disabilities Act, 104 Stat. 328, 42 U.S.C. § 12111 et seq.[, ]” Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000), and “[t]he standards used to determine whether [the RA] has been violated in a complaint alleging employment discrimination . . . shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.).” 29 U.S.C. § 794. Thus, Plaintiff's claims under the ADA, RA and PHRA will be addressed under the purview of the ADA and applicable jurisprudence.
“Under this framework, initially, the plaintiff bears the burden of establishing a prima facie case of discrimination” or retaliation. Id. “If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action.” Id. at 699-700. “Once the employer carries its burden, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons proffered by the employer were merely a pretext for discrimination, and not the true motivation for the adverse employment action.” Id. at 700.
2. Plaintiff's Claim of Disability Discrimination: Count I
To be clear: Plaintiff solely alleges that the adverse employment action he suffered under his discrimination claim was his non-renewal/termination from the Residency Program.
i. The Prima Facie Case
“To establish a prima facie case of disability discrimination under the ADA, the employee must show that he (1) is a disabled person within the meaning of the ADA; (2) is qualified to perform the essential functions of his job, with or without reasonable accommodations, and (3) has been subjected to an adverse employment action as a result of discrimination.” Rubano, 991 F.Supp.2d at 699. “The existence of a prima facie case of employment discrimination is a question of law that must be decided by the court but the prima facie test remains flexible and must be tailored to fit the specific context in which it is applied.” Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007).
The first and third elements are undisputed, however Defendants argue that Plaintiff has not established that he is qualified to perform the essential functions of his job, with or without reasonable accommodations and therefore has not established a prima facie case of disability discrimination. Defs' Br. (ECF No. 84 at 13). They argue that although Plaintiff was qualified to get into the Residency Program, he was not qualified to advance due to his severe discrepancies in performance during his third-year residency. Id. Defendants point to Plaintiff's substandard test scores on his in-service exams in his second residency year and several reports from attending physician faculty members and senior residents of Plaintiff's serious deficiencies related to patient care and medical knowledge. Id. at 13-14. These deficiencies included reports that his overall surgical performance was severely limited and impacted by his poor knowledge base, he was unable to reproduce or demonstrate surgical techniques, he had poorly developed technical skills which included his limited ability to suture, tie knots and perform simple operations, he seemed to function at the level of an intern or first year resident, his truthfulness was questioned, concerns that a remedial year would not aid in his ability to progress, he struggled to visualize proper planes, delicately handling tissue, positioning himself, and deciding his next maneuver in surgery and could not cut on a pre-marked incision with consistency. Id. at 14. Due to these deficiencies, Defendants maintain that the CCC properly determined that Plaintiff did not have the necessary skill, judgment and professionalism to move on in his training as a plastic surgeon and did not believe he was qualified to do so. Id.
For ease of reference, the pinpoint cites provided in this Recommendation supply the CM/ECF page number.
Plaintiff responds that record evidence establishes that there are material issues of fact about whether he, with or without reasonable accommodation, could perform the essential functions of a third-year resident in the Residency Program. To support his argument, Plaintiff points to allegedly contradictory assessments from other faculty members who allegedly disagreed with Dr. Nguyen's assessment of Plaintiff's medical knowledge and technical skill and that Dr. Nguyen and other physician faculty members possess “no expertise about visual-spatial disability[, ]” and that it was Plaintiff's “insecurities about his knowledge base, which resulted in his alleged poor ability to communicate his knowledge, present his assessment, and describe his proposed plan for patient care of rounds and in academic settings, that raised the question of the level of his medical knowledge.” Pl.'s Resp. Br. (ECF No. 91 at 8, 11).
In determining whether an employee is “qualified, ” i.e., can perform the essential job functions with or without reasonable accommodation, the employee has the burden to show he “satisfies the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires” and he “with or without reasonable accommodation, can perform the essential functions of the position held or sought.” Deane v. Pocono Med. Ctr., 142 F.3d 138, 145 (3d Cir.1998) (en banc); Buskirk v. Apollo Metals, 307 F.3d 160, 168 (3d Cir.2002). The court must first address whether the employee “satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.” and if he does, the court can then consider whether the employee can perform the essential job functions with or without accommodation. Gaul, 134 F.3d at 580. The determination of whether an employee is qualified to perform the essential functions of the position “is made at the time of the employment decision.” Id. As it relates to employment in a medical residency, another court explained: “a medical residency is primarily an academic enterprise . . . [and] ‘is distinct from other types of employment in that the resident's “work” is what is academically supervised and evaluated. . . [T]he primary purpose of a residency program is not employment or a stipend, but the academic training and the academic certification for a successful completion of the program.” Brown v. Hamot Med. Ctr., No. CIV.A. 05-32E, 2008 WL 55999, at *8-9 (W.D. Pa. Jan. 3, 2008), affd, 323 Fed.Appx. 140 (3d Cir. 2009) (quoting Davis v. Mann, 882 F.2d 967, 968-969 (5th Cir.1989)). “Successful completion of the residency program depends upon subjective evaluations by trained faculty members into areas of expertise that courts are poorly equipped to undertake in the first instance or to review[.]” Davis, 882 F.2d at 969.
Viewing the evidence in the light most favorable to Plaintiff, the record is clear that when Defendants decided not to advance Plaintiff to fourth-year residency status, not to renew Plaintiff's placement in the Residency Program and to terminate Plaintiff from the Residency Program, he was not qualified to advance to the fourth-year residency status and when he was terminated, he was not qualified to remain in the Residency Program. Plaintiff has failed to put forth any evidence that he was qualified to remain in the Residency Program and the record is undisputed that Plaintiff had multiple documented instances of serious performance issues.
While Plaintiff alleges that some faculty members disagreed with Dr. Nguyen's assessment that Plaintiff lacked medical knowledge and technical skill necessary to remain in the Residency Program, the assessments that Plaintiff included in his brief are misrepresented, cherry-picked statements that explicitly omit negative statements of his work performance. The complete assessment is set forth below and the parenthetical remarks in bold convey what Plaintiff explicitly omitted in his brief to the court:
[Russell (Plaintiff) has made improvement while on this rotation. He has gained in confidence in performing some basic operations. Even so, he continually falls short of where he needs to be to gain trust in the operating room. For example, he still cannot cut on a pre-marked incision with consistency.]
This area has not really been Russell's problem - he is on par / average for his level of training with regards to tying knots and basic manual dexterity. Suturing is a little slow, but he's made a little progress.
Russell has demonstrated technical skills commensurate with his level of training, although his ability to independently progress through a procedure is quite limited. An example is how Dr. Kling assists during surgery - he can tie knots, hold a retractor, and generally do what the residents, fellow, or attendings ask, but will frequently sit quietly in the periphery, just watching surgery rather than taking part in it. This gives the impression that he is unsure of himself or afraid to cause a problem, and this hinders his ability to act appropriately for his level of training.
[Very deficient compared to others at his level]
[Dr. Kling is slow and tentative in the operative room. His confidence with and ability to perform simple tasks such a wound closing appear[s] to have improved during the time on our service, although his overall improvement has been limited. He requires very careful oversight and guidance through essentially every case[, ] however. He appears to have good hand eye coordination and there is no operative hand tremor. His ability to dissect tissue places appears to be limited. OVERALL HIS SURGICAL SKILL LEVEL IS VERY REMEDIAL when compared to what previous residents at this level have demonstrated. My impression (imagined insight) is that he started out in his surgical training with limited sk[i]lls and has, not only not caught up, but has fallen further behind. My overall assessment is that he functions at the level of a surgical intern for most cases for the standpoint of his technical ability.]
One area where Russell stands out above his normal level of functioning is in his technical skills. He has good hands and can execute plans that are carefully and clearly explained to him. However, I do think operative judgement is still deficient - from figuring out how to prep a patient and determining how to position his body to thinking about the steps of the operation on the fly - he seems to lack situational awareness to set himself up for success.
* * *Compare Pl.'s Resp. Br. (ECF No. 91 at 8) with Pl.'s Aggregate Evaluation Report (ECF No. 867 at 151-152) (capitalization emphasis in original). While this is not the complete assesment given of Plaintiff, the rest of the Aggregate Evaluation questions Plaintiff's ability to continue in the program and questions whether a remedial year would allow Plaintiff to succeed in the program, notes that Plaintiff is performing at the level of a below-average intern, and notes that Plaintiff should reevaluate his clinical path in plastic surgery. Pl.'s Aggregate Evaluation Report (ECF No. 86-7 at 152-55).
It is very problematic that counsel for Plaintiff did not use ellipses to signify they were making any omission from the quoted assessment and offered the statement to the Court as the complete record. Counsel for Plaintiff is reminded of their duty of candor to this court to not knowingly make false statements of material fact or law to the court, fail to correct false statements previously made, or offer evidence that the lawyers knows to be false, Pa. R. Prof. C. 3.3(a)(1), (3), and also reminded that misleading statements made by counsel defy Federal Rule of Civil Procedure 11(b).
That said, even if Plaintiff intended to use these remarks as an indication that his poor performance was caused by his disability, he has cited no record evidence to support such a contention and has pointed to no record evidence to rebut his performance issues or to prove he could perform with an accommodation.
Plaintiff also argues that Dr. Nguyen and other physician faculty members do not possess expertise related to Plaintiff's disability and his performance issues resulted from his own insecurities. Neither argument is relevant to determine whether Plaintiff was qualified for his position with or without accommodation and conversely seemingly undermine the premise that Plaintiff was qualified for his position. The record is undisputed that Plaintiff was unqualified to perform the essential functions of his position, as evidenced by many poor performance evaluations completed by myriad physician faculty members, and not solely Dr. Nguyen. Plaintiff's cherry-picked citation to a few favorable reports while winnowing out negative reports in those same evaluations does not undercut the undisputed record evidence that Plaintiff was not qualified to remain in the Residency Program and no jury could reasonably conclude that his poor evaluations were unsubstantiated. Plaintiff has thus failed to meet the second element of the prima facie case of discrimination and it is respectfully recommended that Defendants' motion for summary judgment be granted on Plaintiff's disability discrimination claim (Count I).
3. Plaintiff's Retaliation Claim (Count V)
i. The Prima Facie Case
As to Plaintiff's claim for retaliation, he must establish a prima facie case by proving that he (1) engaged in a protected activity; (2) his employer took an adverse employment action against him either after or contemporaneously with the protected activity; and (3) a causal connection between the protected activity and the employer's adverse action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).
Defendants argue that Plaintiff has not established a prima facie case of retaliation because his “retaliation allegations are vague, ” fail to show a causal connection and are “mischaracterization(s) of events that allegedly ensued.” Defs' Br. (ECF No. 87 at 20). Defendants' first and third arguments are arguments of fact which are improper for a court decide and will be summarily dismissed.
As to Defendants' argument that Plaintiff has failed to show a causal connection, the court must determine as a matter of law whether Plaintiff has met a prima facie case for retaliation. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
As to the first element, Plaintiff engaged in protected activity when he requested an accommodation for his disability in December 2016 and when he filed a grievance appealing his probation status on May 16, 2017. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188-89 (3d Cir. 2010); Slagle v. County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006); Krouse, 126 F.3d at 500.
As to the second element, Plaintiff argues that the following constitute adverse employment actions: (1) termination/non-renewal in the Residency Program; (2) being placed on probation; (3) being placed on administrative leave on May 24, 2017 with full pay and benefits until June 30, 2017; and (4) Dr. Nguyen allegedly issuing a letter to prospective employers that included information that Plaintiff had been placed on probation and that Plaintiff had a learning disability and deficits in visual spatial orientation. An adverse employment action is one that is serious and tangible enough to alter an employee's compensation, terms, conditions or privileges of employment. Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001). “Minor actions, such as lateral transfers and changes of title and reporting relationships, are generally insufficient to constitute adverse employment actions.” Langley v. Merck & Co., 186 Fed.Appx. 258, 260 (3d Cir. 2006) (unpublished). Non-renewal in the Residency Program, being placed on probation and being placed on administrative leave all constitute adverse employment actions, as each is serious and tangible enough to alter Plaintiff's compensation, terms, conditions or privileges of employment.
Plaintiff's arguments also include that he was retaliated against because his HIPAA rights were violated and because Defendants allegedly interfered with his prospective contractual relations. However, these are separate causes of action and not separate sets of facts that support an adverse employment action and will be addressed separately.
As to Plaintiff's claim that Dr. Nguyen's negative reference letter was an adverse employment action, “[a] negative reference given by a former employer to a prospective employer can be an adverse employment if it impacts a former employee's future employment.” Downs v. Schwartz, No. CIV.A. 14-630, 2015 WL 4770711, at *11 (E.D. Pa. Aug. 12, 2015) (citations omitted). While Plaintiff implies that Dr. Nguyen sent these letters to multiple prospective employers and failed to timely respond to prospective employers' inquires, Pl.'s Br. (ECF No. 91 at 22-23), he has cited no record evidence supporting his assertions. The record evidence shows that only one of Plaintiff's prospective employer, All Med Medical & Rehabilitative Centers, received a “negative” reference letter from Dr. Nguyen about Plaintiff. Plaintiff cites no record evidence that this letter impacted his future employment with All Med Medical & Rehabilitative Centers. Plaintiff cannot rely on unsupported assertions, speculation or conclusory allegations to avoid the entry of summary judgment and it is thus respectfully recommended that summary judgment be granted in Defendants' favor for Plaintiff's retaliation claim related to Dr. Nguyen's negative reference letter. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Turning to the third element of a prima facie case for retaliation - causal connection -Plaintiff has established the prima facie case related to his request for accommodation and the filing of his grievance. He alleges that he requested an accommodation due to his learning disability in December 2016, in February 2017 the decision was made not to renew Plaintiff's employment in the Residency Program, and he was placed on probation in April 2017. Plaintiff filed a grievance in May 16, 2017 related to his probation and was placed on administrative leave on May 24, 2017 with full pay and benefits until June 30, 2017. The short time that followed between Plaintiff's protected activities and the adverse employment actions is unusually suggestive of retaliatory motive and infers a causal link between the two. Krouse, 126 F.3d at 503. Plaintiff has thus made a prima facie showing of retaliation related to his (1) non-renewal/termination from the Residency Program; (2) being placed on probation; and (3) being placed on administrative leave.
ii. Legitimate Non-Discriminatory Reason
Having concluded that Plaintiff has made a prima facie case of retaliation, the burden “shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action.” Rubano, 991 F.Supp.2d at 700. At this stage, “the employer's burden is relatively light; [the employer] simply has to introduc[e] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.” Jackson v. Planco, 660 F.Supp.2d 562, 577 (E.D. Pa. 2009), aff'd, 431 Fed.Appx. 161 (3d Cir. 2011) (internal quotation marks omitted).
As to Plaintiff's retaliation claim related to his termination/non-renewal, Defendants argue that they had a legitimate-nondiscriminatory reason for not renewing Plaintiff's contract because Plaintiff was unqualified to continue in the Residency Program. They argue that although Plaintiff was qualified to get into the Residency Program, he was not qualified to advance due to his severe discrepancies in performance during his third-year residency as outlined above. This evidence, if taken as true, would permit the conclusion that Defendants had a nondiscriminatory reason for non-renewal/termination of his placement in the Residency Program and constitutes a legitimate nondiscriminatory reason.
As for Plaintiff's retaliation claim related to placing Plaintiff on probation, Defendants argue that Dr. Nguyen “believed that [Plaintiff] has been placed on academic probation.” Defs.' Br. (ECF No. 87 at 20). The record is unclear why or who placed Plaintiff on academic probation or what circumstances surrounding his probation are attributed to the Defendants. When Plaintiff appealed his probation, the GME concluded that Plaintiff was never put on probation. Despite the lack of clarity in the record surrounding Plaintiff's placement on probation, that Defendants believed Plaintiff was placed on probation due to academic and performance issues, these would qualify as legitimate nondiscriminatory reasons for probation.
As for Plaintiff's retaliation claim for being placed on administrative leave, Defendants argue that he was placed on administrative leave with full pay and benefits to pursue other employment options. This qualifies as a legitimate nondiscriminatory reason for placing Plaintiff on administrative leave.
iii. Pretext
Because Defendants have articulated legitimate nondiscriminatory reasons for the remaining adverse employment decisions related to Plaintiff's retaliation claim, Plaintiff may defeat summary judgment by “identifying evidence from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.” Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir.1997) (citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). To prove pretext, Plaintiff must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” Fuentes, 32 F.3d at 765 (internal quotation marks omitted). The employee must not merely show that “the employer's proffered reason[s] [were] wrong, but that [they were] so plainly wrong that [they] cannot have been the employer's real reason[s].” Keller, 130 F.3d at 1109. Plaintiff may do so by introducing evidence showing that the proffered reasons (1) had no basis in fact; (2) did not motivate the employment action; or (3) are insufficient to motivate discharge. Harding v. Careerbuilder, LLC, 168 Fed.Appx. 535, 538 (3d Cir. 2006) (unpublished). Plaintiff need not present more evidence beyond the prima facie case and is not required to show that the employer acted with a discriminatory purpose. Fuentes, 32 F.3d at 764; Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995). “Because the ultimate question is whether discriminatory animus determined the employer's action, an employee cannot discredit the employer's proffered reason simply by showing that the employer's decision was ‘wrong or mistaken.' ” Gardner v. Sch. Dist. of Philadelphia, 636 Fed.Appx. 79, 86 (3d Cir. 2015) (quoting Fuentes, 32 F.3d at 765).
Plaintiff points to the following evidence as supporting a finding of pretext:
• During his second year of residency in March 2016 he received a favorable evaluation of his clinical performance from a Residency Program faculty member, including statements that Plaintiff would “be an academic all-star. We will be proud of him. Our job in the immediate future is to get him [to] the table to become an excellent technical surgeon[, ]” and rated his technical operative skills as having “a superb fund of knowledge and a real drive to succeed. It is up to us to ensure that he gets the table time to be an excellent surgeon.” The evaluator rated Plaintiff's medical knowledge as “very good” and his patient care practices as “absolutely compulsive in seeing patients are well cared for and in a timely fashion.” Pl.'s Resp. Br. (ECF No. 91 at 12).
• A recommendation letter dated May 8, 2017 from the Chairman of the UPMC Department of Plastic Surgery stating, “I saw [Plaintiff] distinguish himself as a talented researcher and excellent self-starter. I saw him publish papers that were often quoted from the podium and make academic progress.” Pl.'s Resp. Br. (ECF No. 9110 at 2).
• Testimony from Dr. Nguyen in which he stated: “Russell's combination of intelligence and personal drive that have gotten him this far, despite his learning disadvantages. Others may not have persisted, nor gotten as far. He also genuinely cares about his patients and has overall good moral character in that he seeks to do that right thing. As you know, on a personal note, Russell is a kind and friendly individual and easy to get along with.” Pl.'s Resp. Br. (ECF No. 91 at 13).
• A faculty evaluator observation for his performance from July 2016 to June 2017 that Plaintiff was “not putting patients in danger.” Pl.'s Resp Br. (ECF No. 91 at 13).
• Email correspondence between Dr. Nguyen and the Executive Vice-Chair of the Department of Plastic Surgery and several other faculty members during the first week of Plaintiff's third-year residency in which Dr. Nguyen stated, “In the early days of the Magee rotation, it's become evidence that through a number of interactions that [Plaintiff] is not where he should be from a point of view of medical knowledge and clinical performance[, ]” and the Executive Vice Chair responded to Dr. Nguyen “[j]ust to keep in mind that on the Mercy Burn rotation, [Plaintiff] did very well with NO negative comments. So, always please be objective and don't let other's experiences cloud your opinions/judgements(sic).” Pl.'s Resp. Br. (ECF No. 91 at 13-14).
While Plaintiff includes other supposed remarks made by this individual, they are not supported by the document cited and will not be considered here. Fed.R.Civ.P. 56(c)(3).
As to Plaintiff's retaliation claim regarding his non-renewal/termination, these instances do not support a finding of pretext, as they are not evidence that Defendants' proffered reasons for Plaintiff's nonrenewal - i.e., his severe performance deficiencies during his third residency year -had no basis in fact, did not motivate his nonrenewal/termination or are insufficient to motivate his discharge. The evidence simply shows that at times Plaintiff received favorable reviews during his second year residency, that he did not endanger patients, received a favorable letter of recommendation commending his research skills following his termination, and that Dr. Nguyen commended his perseverance in the Residency Program. None of the cited evidence questions the propriety of Defendants' reason for termination - Plaintiff's severe performance deficiencies. Plaintiff has thus offered no evidence of pretext and it is respectfully recommended that summary judgment be granted in favor of Defendants for Plaintiff's disability retaliation claim related to his non-renewal/termination.
As to Plaintiff's claims of retaliation regarding being placed on probation, none of the evidence cited by Plaintiff responds to this claim. Plaintiff has thus failed to meet his burden of showing pretext and it is respectfully recommended that summary judgment be granted in favor of Defendants for Plaintiff's disability retaliation claim related to his placement on probation.
Lastly, as to Plaintiff's claim for being placed on administrative leave, none of the evidence cited contradicts that Plaintiff was placed on administrative leave to find other employment. Plaintiff has thus failed to meet his burden of showing pretext and it is respectfully recommended that summary judgment be granted in favor of Defendants for Plaintiff's disability retaliation claim related to his placement on administrative leave.
In sum, the evidence cited by Plaintiff does not support a finding of pretext for his disability retaliation claim and it is respectfully recommended that summary judgment be granted in favor of Defendants for Plaintiff's disability retaliation claim (Count IV).
4. Failure-to-Accommodate (Counts II and III)
Plaintiff alleges that Defendants failed to accommodate him when they denied him a remedial year in the Residency Program (Count II) and failed to provide him non-competitive reassignment to other vacant and funded job opportunities (Count III).
While disability discrimination and failure-to-accommodate claims are separate causes of action, they share many of the same elements. To state a failure-to-accommodate claim in violation of the ADA, Plaintiff must allege: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination . . . [which] in this context include[s] refusing to make reasonable accommodations for a plaintiff's disabilities.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 191 (3d Cir. 2009). Plaintiff can show that Defendants refused to make reasonable accommodations by refusing to provide him with the proposed reasonable accommodation or by failing to engage in the interactive process with Plaintiff after he requested an accommodation although a reasonable accommodation was possible. Solomon v. Sch. Dist. of Philadelphia, 882 F.Supp.2d 766, 779 (E.D. Pa. 2012).
Generally, the issue of whether a reasonable accommodation exists in a failure-to-accommodate claim in the employment context presents a question of fact. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614 (3d Cir. 2006). “In deciding whether a genuine issue of material fact exists regarding the reasonableness of the requested accommodation, [the court] first examine[s] whether [Plaintiff] has made a facial showing that [his] proposed accommodation is possible[, ]” id. (citing Gaul, 134 F.3d at 580) and “would have allowed him to perform the essential functions of the job.” Bender v. Norfolk S. Corp., 31 F.Supp.3d 659, 666 (M.D. Pa. 2014) (citing Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). If Plaintiff meets that prima facie showing, “the burden shifts to [Defendants] to prove, as an affirmative defense, that the accommodations requested by [Plaintiff] are unreasonable, or would cause an undue hardship on the employer. Id. (citing Gaul, 134 F.3d at 580).
If the requested accommodation includes the employee's request to be transferred to another position, Plaintiff must “demonstrate that there were vacant, funded positions whose essential duties he was capable of performing, with or without reasonable accommodation, and that these positions were at an equivalent level or position as [his former job].” Gaul, 134 F.3d at 580-81 (quoting Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996)). Plaintiff “must also demonstrate as part of his facial showing that the costs associated with his proposed accommodation ‘are not clearly disproportionate to the benefits that it will produce.' ” Gaul, 134 F.3d at 580-81 (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). Costs are considered “financial as well as administrative burdens on a company.” Gaul, 134 F.3d at 581. If Plaintiff meets the prima facie showing, the burden shifts to Defendants to prove as an affirmative defense “that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer.” Shiring, 90 F.3d at 831.
Each of Plaintiff's requested accommodations will be addressed separately. As to providing Plaintiff with an accommodation in the form of a remedial year, Defendants argue that Plaintiff could not have been reasonably accommodated because he could not perform the essential functions of the job. Defendants argue that to become a successful plastic surgeon, it is essential that the surgeon can work in three-dimensional tissue planes, understand where they are in that three-dimensional landscape, and be able to effectively make the minute-by-minute and sometimes second-by-second decisions that will keep the operation moving forward safely and effectively and ensure a predictable outcome. They argue that even in his second-year residency before any learning disability was disclosed, it was reported that Plaintiff lacked spatial and 3D thinking required by plastic surgery and in his third-year residency, and it was reported that Plaintiff struggled to cut on a straight line or closing a simple laceration. Defendants emphasize that Plaintiff underwent several weeks of remediation during his third-year residency, including weekly meetings with the Chief Administrative Resident in the Residency Program, but continued to have performance issues. Defendants note that Plaintiff's Neuropsych Assessment, which disclosed his learning disability related to his visual-spatial skills and memory, may account for some of his performance problems, but argue that no rational jury could conclude that a remedial year would help Plaintiff graduate as a competent, independent plastic surgeon. Defs' Br. (ECF No. 84 at 18).
In response, Plaintiff changes courses from the explicit claims set forth in his operative complaint and now argues that Defendants “did not include [Plaintiff] on the interactive process to seek the accommodation of allowing him to repeat” his third-year residency and points to the fact that the Neuropsych Assessment suggested a remedial year as an accommodation. Pl.'s Resp. Br. (ECF No. 91 at 15).
In Plaintiff's operative complaint, he references the “interactive process” twice - (ECF No. 47 at ¶¶ 58 and 63) - neither of which passing references are developed or incorporated into his two separate causes of action related to his failure-to-accommodate claims for not providing him with a remedial year and failure to provide a non-competitive assignment. Despite this deficiency, Plaintiff's bad faith argument will be addressed.
Defendants reply that they engaged in the interactive process in good faith by requesting documentation to support Plaintiff's learning disability, provided him with remediation, ordered a Neuropsych Assessment and the CCC had extensive discussions about whether a remedial year would be reasonable and concluded that Plaintiff would be unable to complete the Residency Program given any amount of time. As to the Neuropsych Assessment suggestion that a remedial year could be an accommodation, Defendants argue that the Assessment also included a suggested accommodation of “mentorship with the goal of collaboratively reassessing [Plaintiff's] area of medical specialty or reconsideration of [Plaintiff's] overall career path[, ]” as an alternative to remediation and that was the path Defendants ultimately chose. Defs.' Reply Br. (ECF No. 96 at 4).
To establish a prima facie case “that an employer failed to participate in the interactive process, a disabled employee must demonstrate: (1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for his or her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-20 (3d Cir. 1999). “Employers can show their good faith in a number of ways, such as taking steps like the following: meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered employee's request, and offer and discuss available alternatives when the request is too burdensome.” Id. at 317. See also Parker v. Verizon Pennsylvania, Inc., 309 Fed.Appx. 551, 560 (3d Cir. 2009) (unpublished).
No jury could reasonably conclude that Defendants failed to engage in the interactive process in good faith. After Plaintiff informed Defendants of his learning disability, Defendants sought to learn more about Plaintiff's disability by requesting medical documentation about his disability, continued his placement in a remediation program with greater mentorship, had Plaintiff undergo a Neuropsych Assessment to understand his disability and its impact on Plaintiff's performance issues, continued its annual review and performance evaluation of Plaintiff until after the results of the Neuropsych Assessment were available and during his annual performance review seriously considered whether a remedial year would benefit Plaintiff in correcting his performance issues - all of which is evidence that Defendants engaged in the interactive process in good faith. Plaintiff supports his entire bad faith argument by pointing to the fact that he was not involved in the discussion among the CCC regarding his non-renewal. “[N]othing requires employers to include the employee and/or the employee's physician in every discussion of possible accommodations or evaluations as part of engaging in the interactive process[, ]” Parker, 309 Fed.Appx. at 562, and considering the record as a whole, the fact that Defendants did not include Plaintiff in discussions of his evaluation process alone is not enough to support a finding of bad faith in the interactive process.
Moreover, even if Defendants' refusal to include Plaintiff in the discussions during his evaluation could constitute bad faith in the interactive process, Plaintiff must still submit evidence that he can be reasonably accommodated. “The ADA . . . is not intended to punish employers for behaving callously if, in fact, no accommodation for the employee's disability could reasonably have been made.” Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir.1997). “It is the employee's burden to show that accommodations existed that would have rendered [him] capable of performing the essential functions of the job.” Bielich v. Johnson & Johnson, Inc., 6 F.Supp.3d 589, 617-18 (W.D. Pa. 2014) (quoting Stanley v. Lester M. Prange, Inc., 25 F.Supp.2d 581, 584 (E.D.Pa. 1998)). “Summary judgment can be granted in favor of the employer where the employee's proposed accommodations would be clearly ineffective.” Bielich, 6 F.Supp.3d at 61718 (citing Walton, 168 F.3d at 670).
Even if Defendants' conduct in not including Plaintiff in the evaluation of his non-renewal and decision not to provide Plaintiff with a remedial year constituted bad faith, Plaintiff has failed to meet his burden of proving that a remedial year would have rendered him able to perform the essential functions of this job. While the Neuropsych Assessment suggested that Plaintiff “may” find a remedial year helpful, it also suggested that no amount of remediation could help Plaintiff perform the essential functions of his job and eventual job as a plastic surgeon by suggesting that Plaintiff reassess his area of medical specialty or reconsider his overall career path. The Neuropsych Assessment's mention of a remedial year alone does not conclusively determine that a remedial year would allow Plaintiff to perform the essential functions of his job and does not contradict Defendants' decision that a remedial year would be ineffective at allowing Plaintiff to perform the essential functions of his job.
Plaintiff also puts much emphasis on the fact that physician faculty members were “unable to quantify how [Plaintiff's] a(sic) visual-spatial deficit affected his surgical technique[, ]” and “recognized that a person can gain in spatial performance through practice, training, and learning[, ]” and Plaintiff therefore argues that his “visual-spatial deficits could be overcome by a progressive learning process.” Pl.'s Resp. (ECF No. 91 at 9). It is not relevant that the physician faculty members were unsure how Plaintiff's learning disability affected his surgical technique because the record is undisputed that Plaintiff had serious performance issues regardless if faculty members could speculate about their cause. Moreover, the two faculty members testified that they were not experts in Plaintiff's learning disability, and more tellingly were not explicitly asked to opine on Plaintiff's specific learning disability. As a result, their testimony is not relevant to determine whether Plaintiff could perform the essential functions of his job. Thus, Plaintiff has not met his burden of showing that a remedial year would have render him able to perform the essential functions of his job and it is thus respectfully recommended that summary judgment be granted in favor of Defendants as to Plaintiff's claim related to failure to accommodate for not providing him with a remedial year (Count II).
The deposition transcripts in Plaintiff's appendix that he contends supports his position does not identify the deponent. It will be assumed from Plaintiff's references in his brief that these deponents were physician faculty members of the Residency Program. Despite the citation deficiencies, when asked to opine on “spatial performance, ” one faculty member testified as follows:
Q: Doctor, would you agree that the level of spatial performance is capable of change over time?
A: Absolutely.
Q: Would you agree that a person can gain spatial performance through practice, training and learning?
A: Presumably, yes, or presumably not. It really depends on how far that person progresses and how well they perform in the required period of time. A surgical resident is six clinical years, and that is the amount of time that you have to become a plastic surgeon.(ECF No. 91-4 at 3). Additionally, when asked to opine on “visual spatial problem, ” the other physician faculty member testified as follows:
Q: Would you agree that the level of a visual spatial problem is capable of change over time?
A: Yes. Many learners early on, in the beginning of their training, have -nobody comes to surgery training with everything. It's a progressive learning process, a six-year process. It's a long time. A lot of progressive rated responsibility has to come along. So in the beginning, you spoon feed people. And you test more knowledge. And then as time goes on, you have them execute some of that knowledge. And as time goes on, to the very end, when you present somebody with a problem, and they tell you what it is, diagnose what it is, tell you how to fix it, draw it out, and execute it with little to no assistance on the teacher's part to demonstrate competence. So it's a graded, long process. And many people have challenges that they have to spend extra time and additional effort on to learn over that six-year period.
Q: So you would agree, Doctor, that a person can gain in spatial performance through practice, training and learning. Right?
A: They may be able to.(ECF No. 91-5 at 2-3).
As to Plaintiff's request for accommodation to be transferred, Defendants argue that reassignment was not an option because “residents match into residency programs per a very precise and regulated process in accordance with the ACGME budget and other requirements, departmental or program needs, and a resident cannot simply be transferred from one residency program and into another program.” Defs.' Br. (ECF No. 84 at 19).
Plaintiff does not respond to Defendants' argument that summary judgment should be granted in their favor on Plaintiff's failure-to-accommodate claim as it relates to his request to be transferred and it is thus respectfully recommended that summary judgment be entered in favor of Defendants on this claim (Count III) as Plaintiff has not made a facial showing that there were vacant, funded positions whose essential duties he could perform, with or without reasonable accommodation, and that these positions were at an equivalent level or position as his former job. See Gaul, 134 F.3d at 581.
5. Medical Inquiry (Count IV)
In his complaint, Plaintiff alleges that Defendants violated the ADA and RA by requiring Plaintiff to disclose medical information, submit to the Neuropsych Assessment and other medical examinations that were not job-related. (ECF No. 24 at ¶¶ 167-72). Defendants argue that the Assessment was conducted with Plaintiff's full consent and only after Plaintiff produced no underlying documentation to support his claim of a learning disability so Defendants could determine what, if any, reasonable accommodations could be provided. Defs.' Br. (ECF No. 84 at 22). Again, Plaintiff provides no argument to counter Defendants' arguments in favor of summary judgment.
It will be assumed that Plaintiff intended to bring a claim against Defendants under 42 U.S.C. § 12112(d)(4)(A) which provides that an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature of severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
It is undisputed that Defendants did not “require” Plaintiff to submit to the Neuropsych Assessment or to other medical testing or request for documentation and that he did so consensually. Even if the record were unclear as to whether Defendants required Plaintiff to submit to any of the medical testing, the record is undisputed that the examinations and inquiries were job-related and consistent with business necessity, as “[d]isability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity.” E.E.O.C. v. U.S. Steel Corp., No. CIV.A. 10-1284, 2013 WL 625315, at *20 (W.D. Pa. Feb. 20, 2013) (quoting EEOC, Enforcement Guidance: Disability-related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (ADA), 2000 WL 33407181, at *6). Thus, it is respectfully recommended that summary judgment be granted in favor of Defendants on Plaintiff's “medical inquiry” claim (Count IV).
6. Disclosure of Disability Under 16 Pa. Code § 44.12 (Count V)
In his response brief, Plaintiff references a proposed “HIPPA” violation against Dr. Nguyen. Not only does Plaintiff provide no legal analysis or any substantive law on which he basis this purported claim, Plaintiff's amended complaint does not set forth such a cause of action. Parties may not amend pleadings through briefing and this purported claim will not be addressed. Bell v. City of Philadelphia, 275 Fed.Appx. 157, 160 (3d Cir. 2008) (“A plaintiff ‘may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.' ”) (citation omitted)(unpublished).
Plaintiff claims that “[t]he parties agreed upon a neutral reference letter which would contain no reference to probation (determined by grievance), Neuropsych Assessment, or learning disability.... In breach of such agreement, Dr. Nguyen sent out letters to an unknown number of prospective employers and/or residency programs which referenced probation, learning disability and deficits in visual spatial orientation.” Pl's Resp. Br. (ECF No. 91 at 21). In his complaint, Plaintiff suggests that his source of legal authority for this claim is “PHRA (16 Pa. Code § 44.12).” Am. Compl. (ECF No. 47 at 24).
To begin, Plaintiff incorrectly construes the Pennsylvania Code, 1 Pa. Code §§ 1.1 et seq. which promulgates administrative regulations as the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §§ 951 et seq., which promulgates Pennsylvania laws enacted by the Commonwealth's legislature banning discrimination. To be clear: the citation provided by Plaintiff as support for his claim of “Disclosure of an Employee's Handicap or Disability, ” is part of the Pennsylvania Code, not the PHRA. The administrative regulation cited by Plaintiff, 16 Pa. Code § 44.12, is enforced through the Pennsylvania Human Relations Commission and Plaintiff has provided no argument that this regulation confers a private right of action for its violation. See 16 Pa. Code § 44.3 (“This chapter shall be subject to and will be enforced in accordance with the act, Chapter 42 (relating to special rules of administrative practice and procedure) and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure.”); and 16 Pa. Code § 42.1 (“Under 1 Pa. Code § 31.1 (relating to scope of part), 1 Pa. Code Part II (relating to general rules of administrative practice and procedure), is applicable to the activities of and proceedings before the Commission, except as otherwise provided in this chapter or where inconsistent with this chapter, the act or the Fair Educational Opportunities Act.”). Moreover, in his brief, Plaintiff offers no clarification to this point, nor offers any citation to any legal concept to support his claim. As a result, it is respectfully recommended that summary judgment be granted in favor of Defendants on this claim.
Even if Plaintiff can overcome this hurdle and show he had a private right of action under 16 Pa. Code § 44.12, he has offered no evidence that Defendants violated this regulation. The regulation provides:
Information concerning a handicap or disability, medical condition or medical history of an employe, whether past, present or recurring, shall be accorded confidentiality as medical records and shall be retained only through the use of forms accorded confidentiality as medical records. The information may only be disseminated with the permission of the employe or when the employer can show a demonstrable business necessity for the dissemination . . .16 Pa. Code § 44.12 (providing examples of business necessity). According to Plaintiff, he claims that Dr. Nguyen “sent out letters to an unknown number of prospective employers and/or residency programs which referred probation, learning disability and deficits in visual spatial orientation.” Pl.'s Resp. Br. (ECF No. 91 at 21). Plaintiff's argument is mere speculation and he has offered no evidence of plural “letters” or the so-called “unknown number of prospective employers and/or residency programs” that Dr. Nguyen allegedly sent the letters to. Summary judgment “is the ‘put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda or oral argument[, ]” and cannot rely on merely colorable, conclusory, or speculative evidence, as Plaintiff does here and for many other arguments opposing summary judgment. Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
Setting aside Plaintiff's deficiencies and considering the entire record, the sole allegation about Dr. Nguyen sending any reference letter was to All Med Medical & Rehabilitative Centers and stated as follows: “During his third year of clinical training, 2016-2017, it became apparent that [Plaintiff] was not progressing adequately. [Plaintiff] exhibited issues with integrating information and in clinical decision making. He also exhibited deficits in visual-spatial orientation and technical ability.” (ECF No. 91-19 at 2). Such statements cannot fairly be described as “[i]nformation concerning a handicap or disability, medical condition or medical history of an employe, whether past, present or recurring . . .” and merely explained Plaintiff's performance issues.
Thus, it is respectfully recommended that summary judgment be entered in favor of Defendants in relation to this claim (Count V).
7. Tortious Interference with Prospective Contract Claim (Count VII)
Lastly, Defendants argue that they are entitled to summary judgment on Plaintiff's state law tortious interference with prospective contract claim (Count VII).
While Plaintiff contends that Dr. Nguyen intentionally interfered with his “prospective contractual relations by communicating/writing untruthful, defamatory, and discriminatory letters to prospective employers and/or failing to timely respond to prospective employers' inquiries[, ]” (ECF No. 91 at 22), these contentions are unsupported by the record and will not be addressed. Plaintiff cites no record evidence after making such sensational assertions in his brief and admits that “the number of similar letters sent by Dr. Nguyen to prospective employers and/or residency programs in unknown.” (ECF No. 91 at 23). To be clear: the only instance of Dr. Nguyen sending the reference letter supported by the record was to All Med Medical & Rehabilitative Centers. Plaintiff responds that he has stated a claim for tortious interference with prospective contract because Dr. Nguyen's characterization of Plaintiff's work ethic and professionalism was untrue.
Under Pennsylvania law, to state a claim for tortious interference with prospective contract, Plaintiff must prove these elements:
(1) a prospective contractual relationship;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant's conduct.Phillips v. Selig, 2008 PA Super 244, 959 A.2d 420, 428 (2008) (quoting Restatement (Second) of Torts § 766B). A prospective contractual relationship “is something less than a contractual right, something more than a mere hope[, ]” Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979), and the contractual relationship must be reasonably likely or probable to occur and not the “mere hope or the innate optimism of the salesman.” Phillips, 959 A.2d at 428 (quoting Glenn v. Point Park Coll., 441 Pa. 474, 272 A.2d 895, 898-99 (1971)).
Plaintiff has offered no evidence (nor does he even argue) that it was reasonably likely or probable that he would be extended employment with All Med Medical & Rehabilitative Centers and therefore he has not offered evidence of a reasonable probability of a prospective contractual relationship. See, e.g., Manning v. Flannery, 528 Fed.Appx. 141, 144 (3d Cir. 2013) (finding no prospective contractual relation because plaintiff could not show a reasonable probability of future employment) (unpublished). Thus, it is respectfully recommended that summary judgment be granted in favor of Defendants on Plaintiff's tortious interference with prospective contract claim (Count VII).
Because it is respectfully recommended that Plaintiff's claims be dismissed on the merits, Defendants' argument that UPMC is not a proper party because it is not Plaintiff's employer need not be addressed.
d. Conclusion
For these reasons, it is respectfully recommended that Defendant's motion for summary judgment be granted in its entirety. Under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until May 21, 2021 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
cc: Honorable Marilyn J. Horan United States District Judge