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Stremple v. Nicholson

June 22, 2006

JOHN F. STREMPLE, PLAINTIFF,
v.
R. JAMES NICHOLSON, SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Caiazza

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Having conducted a bench trial in the above-captioned case, the court now enters these findings of fact and conclusions of law.

The court will utilize the narrative voice, rather than numbered findings and conclusions. Where any doubt may arise, the undersigned will specify whether the determination is made by the court sitting as finder of fact or as a matter of law.

The trial transcript in this case has been filed, on a daily basis, under separate docket numbers. In citing the transcript, the court will refer to the docket number corresponding to the date of the transcript, then a period (".") symbol, followed by the specific page number(s). After each entry, in parentheses, will appear the identity of the witness. Thus, the testimony of Carolyn E. Bechtold, appearing on the hundredth page of the transcript dated September 6, 2005 (Doc. 89), will be cited "Tr. at 89.100 (Bechtold)."

The long and detailed factual background in this case is intimately familiar to the parties, and the court therefore will restrict its discussions to those facts most germane to its conclusions.

I. The Plaintiff

John F. Stremple, M.D. ("the Plaintiff" or "Dr. Stremple") is an Army veteran who has provided this country and its former military personnel a long and distinguished period of service. When the Plaintiff first became Chief of Surgery at the VA Healthcare System in Pittsburgh, Pennsylvania ("the VA" or "the Pittsburgh VA") in 1978, he was the only attending surgeon. See Tr. at 91.51, 91.55 (Stremple). From that point forward, he remained the driving force behind the hospital's surgical services and a tireless advocate of veteran-patient rights. See generally Tr. at 88.33 (Eilbing) (agreeing that Plaintiff ran surgical services for twenty-five years before being supplanted in 1997); Tr. at 89.50 (Bechtold) ("Dr. Stremple . . . was always passionate about veterans. He cared very much for [them]."); Tr. at 90.98 (McDonald) ("He was an advocate for excellent patient care, period.").

During his career at the Pittsburgh VA, Dr. Stremple developed an excellent reputation among his peers, and he earned the deep admiration of locally and nationally renowned medical professionals. See, e.g., Tr. at 90.18 (Starzl) (Plaintiff had "a great reputation[;] I wish I could come up to it"); Tr. at 90.55 (McDonald) ("[T]he reason I picked him to be on my advisory committee was because he was one of the top surgeons in the system. . . . He was well-known. And as I worked with him over the years, he was outstanding."); Tr. at 90.91 (Atwell) ("[H]is reputation is flawless. Dr. Stremple is a very well-respected surgeon. He served with distinction as a surgeon in Vietnam[ and as a] professor of surgery at the University of Pittsburgh. He's a member of the most prestigious surgical society in the United States, the American Surgical Association."). He also was instrumental in the development of groundbreaking programs, ones otherwise not likely to have been made available to his veteran patients. See, e.g., Tr. at 90.8-9 (Starzl) ("John Stremple was the person that initiated the plan to get [the liver transplant program] put together [in Pittsburgh]," he "was the gadfly who was getting on the plane and flying to Washington and hassling them, . . . pointing out the need, and complaining that the veterans were not being given . . . fair [consideration]"); Tr. at 90.38-39 (McDonald) (Plaintiff was one of four "founding members" of NSQIP, "[a] program . . . so successful that the American College of Surgeons has adopted [it]").

In all, the fact finder concludes Dr. Stremple was a rare and valuable servant of the veterans, the VA, and his country.

II. The Plaintiff's Non-Selection

As Vice President of the Surgical Services Line*fn1 In October 1996, various VA operations were merged to form a single Veterans' Administration Pittsburgh Healthcare System. This integrated entity included the operations of three facilities: (1) the University Drive campus, which served acute care patients ("University Drive" or "Oakland"); (2) the Aspinwall campus, which served intermediate and nursing home patients ("Aspinwall"); and (3) the Highland Drive campus, which served psychiatric care patients ("Highland Drive"). See generally Tr. at 92.7-9 (Cappello). The newly integrated system resulted in an overlap of multiple services and service chiefs. These positions subsequently were reduced from over 50 services to approximately 26. See generally id. at 92.9.

In addition to, but separate from, the integration of the three campuses, the existing services were consolidated into service lines. Twelve new managerial positions were created to run the lines. See id. at 92.15-16.

In April 1997, the Plaintiff applied for the Product Line Manager position for the Surgical Specialty Care Service Line (later referred to as Vice President of the Line, hereinafter "VP"), and he was one of three applicants deemed qualified. Another candidate was Carolyn E. Bechtold ("Nurse Bechtold"), then an Associate Chief Nurse of the Nursing Service. Nurse Bechtold was ranked first by a three-member interviewing committee, and she ultimately was selected for the position by Thomas Cappello, the Medical Center Director ("Mr. Cappello"), in May 1997. See id. at 92.21-22.

Nurse Bechtold was selected over Dr. Stremple based on the reviewers' belief that she possessed stronger administrative and managerial skills. See, e.g., Tr. at 92.22 (Cappello);

Tr. at 96.154 (Lowe); see also id. at 96.169 ("We weren't looking for a surgeon. We were looking for a manager."). Ernest Urban, M.D. ("Dr. Urban") , the interim chief of staff and the Plaintiff's direct supervisor,*fn2 suggested Nurse Bechtold and Dr. Stremple were expected to share a partnership, with the Nurse assisting the Doctor regarding administrative matters so he could focus on clinical issues. See Dep. Tr. of E. Urban at 50 (Nurse Bechtold was appointed "to provide additional assistance to Dr. Stremple in areas where he had less expertise with the premise that both [she] and [the Plaintiff] would work in partnership to make . . . a smooth operation"); see also id. at 165 ("it was meant to be a partnership," because service line concept required "more than one person could do").

As fact finder, the court has serious difficulties with the VA's decision to focus on administrative rather than clinical expertise in making the VP selection. The decision came as a shock to persons both within the Pittsburgh VA and in the Central Office in Washington. See, e.g., Tr. at 90.46 (McDonald)*fn3 ("[O]ur objection [in the VA's] Central Office . . . was the fact that a non-surgeon was placed in [the Plaintiff's] stead. A nurse was named as head of this program, and we were really astounded . . . because we knew that John had been there for years [and] had done an excellent job."); Tr. at 91.18 (O'Donnell) ("[T]he definition is 'surgical product.' I mean, the 'product' is surgery, which I think . . . speaks for itself, in that the one to run that product line, since the product is surgery, should be a surgeon."). Indeed Dr. McDonald testified that "[p]ractically all of the VA's who adopted [the service line] program did so naming the Chief of Surgery as the head of the product line, . . . -- that was the initial concept."

See Tr. at 90.45.*fn4

Even more disturbing is the adverse effect the new focus on administration had on the quality of patient care. See, e.g., Tr. at 90.124-125 (Ferson) (discussing adverse consequences of new service line); Pl.'s Ex. 41 (email from Dr. Gayowski to other surgical section chiefs dated Jul. 20, 1998) ("I believe we all feel that patient care has been adversely affected," and "unfortunately my patients have a tendency to die when this occurs"); compare Pl.'s Ex. 20 (Nurse Bechtold's memo in response to liver deaths, calling for creation of "task force") with Pl.'s Ex. 23 (Dr. Gayowski's reply memo, noting that, in light of obvious connection between fatalities and combination of patient wards, "[t]he request for the convening of a task force [wa]s ridiculous"). And while the record is replete with finger-pointing, one obvious truth cannot be ignored: as a consequence of the new organizational scheme, patient care suffered.*fn5

Next, even assuming a partnership between the Plaintiff and Nurse Bechtold was intended, the fact finder must question why the Pittsburgh VA would set up a competitive employment process. The Defendant's documents, moreover, belie Dr. Urban's suggestion a true partnership was intended. See, e.g., Pl.'s Ex. 1 (Promotion Announcement) at 2 (VP was to "have full responsibility for the provision of surgical specialty care at the [Pittsburgh VA] including specialty clinics, surgical consults, the operating room, anesthesia and recovery"; incumbent was "required to provide guidance for clinical programming, [and] strategic and business planning") (emphasis added); Pl.'s Ex. 28 (first quarter report, fiscal year 1998, for surgical service line) (Nurse Bechtold was responsible for "[o]versight of all clinical and administrative functions," Anita Steinmiller for "[c]linical management," and Dr. Stremple for "[s]upervision of medical staff and resident[s]"). In any event, neither Dr. Urban nor the Pittsburgh VA should have been surprised to experience a backlash from the non-selection of the highly respected Dr. Stremple. See discussions supra (noting unfavorable reaction of Plaintiff's peers) and infra (finding testimony credible that Plaintiff exhibited dissatisfaction over non-selection, but that said reaction was justified and did not cause constructive discharge).*fn6

These things said, it is not for the court to determine whether the non-selection of Dr. Stremple was motivated by age discrimination; nor can the employment decision form a basis for relief. See discussion supra at n.1. Dr. Stremple's non-selection is, however, part of the tapestry of events leading to his constructive discharge.

III. Conclusions of Law: Constructive Discharge v. Hostile Work Environment

Earlier in this case, the court implicitly recognized that the Plaintiff's hostile work environment claims were timely under the continuing violations theory discussed in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See generally R&R (Doc. 30) at 13-17. Having heard all the evidence, the court concludes Dr. Stremple cannot present a case of hostile work environment.

There is a qualitative difference between the types of evidence that support a hostile work environment claim and a traditional discrimination case. See Schrader v. Tomlinson, 2005 WL 327130, *3 (D.D.C. Feb. 9, 2005) ("hostile work environment claims are qualitatively different from discrete acts of discrimination") (citation omitted); see also Morgan, 536 U.S. at 115 ("[h]ostile environment claims are different in kind"); Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 281 n.11 (3d Cir. 2001) (district court erred by "conflating" claims of discrimination and hostile work environment; "[t]he two claims have entirely different prima facie cases and often courts may consider evidence for one claim and not the other").

Within the context of sex discrimination, for example, hostile work environment claims typically involve: the use of sexual, gender-biased, or gender-hostile language; the open viewing of sexually explicit or pornographic materials; the writing of sexually charged notes or messages; or lewd or lascivious behavior, including physical and/or sexual contact with the victim. These types of conduct, if sufficiently pervasive or regular, may be viewed as creating a work environment sufficiently hostile to adversely affect a reasonable person.

The Third Circuit Court has not ruled out the possibility that ageist behavior similarly may create a hostile work environment. Cf. generally Lyles v. Philadelphia Gas Works, 2005 WL 2573319, *2 n.3 (3d Cir. Oct. 13, 2005) ("[w]e have not formally recognized a cause of action for hostile work environment under the ADEA," but "assume, without deciding, that it does").*fn7 Dr. Stremple does not complain, however, of these types of behavior.

Rather, the evidence shows the Plaintiff endured a series of discrete events that were sufficiently intolerable to cause a reasonable person to resign. See generally Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996) (citing standards for constructive discharge). To the extent ageism is involved, then, it ...


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