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Patel v. Shinseki

United States District Court, W.D. Pennsylvania

November 27, 2013

ERIC K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant

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[Copyrighted Material Omitted]

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For CHANDRAKANT R. PATEL, Plaintiff: Melvin L. Vatz, LEAD ATTORNEY, Grossinger Gordon Vatz, LLP, Pittsburgh, PA.



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Mark R. Hornak, United States District Judge.

Plaintiff Chandrakant R. Patel (" Dr. Patel" ), a retired part-time physician at the VA Pittsburgh Healthcare System, brings suit against Defendant Eric K. Shinseki in his official capacity as Secretary for the Department of Veterans Affairs, alleging age discrimination after Dr. Patel was allegedly terminated from his employment in retaliation for voicing complaints of discrimination, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (" ADEA" ). Before the Court is Defendant Secretary Shinseki's Motion for Summary Judgment, ECF No. 21. The parties have extensively briefed this Motion and the Court's deliberations have been materially aided by the oral argument presented by counsel. For the reasons that follow, Defendant's Motion is granted.


While the parties contest many matters related to Dr. Patel's employment, the relevant material facts are straightforward and undisputed.

a. Dr. Patel's employment history at VA Pittsburgh Healthcare Systems.

In August of 2003, Plaintiff Dr. Patel was appointed to the position of part-time physician with VA Pittsburgh Healthcare Systems (" VAPHS" ). Def.'s Stat. of Material Facts in Supp. of Summ. J. ¶ 9, ECF No. 23 (hereinafter " Def.'s Stat. Facts" ). The VA Handbook sets forth the VA's policy regarding the employment of part-time physicians as follows:

It is VHA [Veterans Health Administration] policy to use the services of qualified individuals on a part-time or intermittent basis when necessary to alleviate recruitment difficulties and in all cases where VHA work requirements do not support employment on a full-time basis. Decisions concerning utilization of part-time or intermittent employees must be related to patient care and other VA work requirements and supported by relevant staffing guidelines.

Def.'s Stat. Facts ¶ 12. Dr. Patel alleged that upon his hire he received a " verbal" promise from Dr. Mona Melhem, Associate Chief of Staff and Vice President of the Clinical Support Service Line, that he would be converted to full-time status in the future. Id. at ¶ 13. The Chief of Staff for VAPHS, Dr. Sonel, testified that there is no authority within the VA to make guarantees for future employment. Id. at ¶ 14.

Upon starting his VA employment in 2003, Dr. Patel worked in the nuclear medicine (" NM" ) section where he and a fellow physician, Dr. Klein, split a full-time position by each working a part-time " 0.5"

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appointment. Id. at ¶ 17.[1] Plaintiff frequently inquired about full-time employment and was informed that the nuclear medicine section's workload only justified a part-time physician position. Id. at ¶ 20. However, Dr. Patel was provided with additional work opportunities to help alleviate his self-stated financial constraints. Id.

b. Positron Emission Tomography scanning at the VA.

Positron Emission Tomography (" PET" ) scanning, a relatively new technology, was not applied in hospitals' clinical setting until after the year 2000. Id. at ¶ 23. PET scanning has been formally described as follows:

A positron emission tomography scan is a safe, effective and painless molecular imaging exam that is used to detect the presence and extent of cancer, cardiovascular disease, neurological conditions and other physiological problems. While other imaging techniques -- such as X-rays or CT scans -- provide anatomical information about the way organs or tissues look, a PET scan shows what the cells in those organs or tissues are doing. That functional information is then used for diagnosis, evaluation and treatment of disease.

Id. at ¶ 24. The training required to administer and read PET scans is significant and involves coursework and performing hundreds of case studies under the supervision of a qualified individual. Id. at ¶ 26. Dr. Patel had no post-doctorate training or fellowship in PET scanning, and his pre-VA Pittsburgh employment did not include the administration of PET scans and interpretation of PET scan imagery. Id. at ¶ ¶ 27, 28. VAPHS physicians must obtain PET credentialing and clinical privileges from the VA's credentialing committee in order to perform and interpret PET scan imagery for VAPHS. Id. at ¶ 29. Dr. Patel was never credentialed by the VA in PET scan imagery, and was therefore categorically unqualified to perform PET scans at VAPHS. Id. at ¶ 30.

In 2007, the VA published a directive (hereinafter " the PET Directive" ) authorizing the acquisition and increased use of PET scanning as a vital resource within the VA medical community. Id. at ¶ 31. Previously, the VA had a contract with the University of Pittsburgh to perform its PET/CT services. Id. at ¶ 32. In 2008, VAPHS acquired a PET scan machine in the nuclear medicine section; however, neither Dr. Patel nor Dr. Klein were qualified to use the PET scan machine. Id. at ¶ 33. The PET Directive tasked each facility director with the responsibility of ensuring that professional medical staff providing PET interpretations were credentialed and privileged. Id. at ¶ 34.

On January 9, 2008, the VA hired Dr. Tanuja Kanderi as a part-time physician and assigned her to the nuclear medicine section with the primary responsibility of administering and interpreting PET/CT scans at VAPHS. Id. at ¶ 35. At the time of her hire, Dr. Kanderi was under 40 years of age. Id. at ¶ 36. Dr. Kanderi's credentials included a board certification in nuclear medicine and completion of a PET/CT fellowship at Stanford University. Id. at ¶ 37. She was also credentialed and received clinical privileges from the VA credentialing committee to perform PET scans. Id. at ¶ 38. Dr. Kanderi initially worked a part-time schedule of three days per week. Id. at ¶ 39.

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c. The PET workload increase and the conversion of Dr. Kanderi to full-time employment.

VA Statistics Reports reveal that the PET scan workload of VAPHS steadily increased between the years 2008-2011 as follows: 2008 (228 cases); 2009 (610 cases); 2010 (809 cases); and 2011 (929 cases). Id. at ¶ 40. According to Chief of Staff Dr. Jain, VAPHS's PET scan workload was brought back in-house. Id. at ¶ 41. Dr. Jain also testified that oncologists and other clinicians requested PET/CT scan availability at VAPHS five days per week as opposed to the three days per week that were being performed by Dr. Kanderi. Id. at ¶ 42. According to Dr. Jain, it was most cost-effective to convert Dr. Kanderi to full-time status in order to meet the needs of the increased workload in PET/CT scans at VAPHS. Id. at ¶ 43. Dr. Kanderi was officially converted to full-time status effective February 14, 2010. Id. at ¶ 44. In addition to performing PET scans, Dr. Kanderi assisted with non-PET nuclear medicine cases. Id. at ¶ 57.

d. Dr. Klein's retirement and Dr. Patel's request for full-time work.

In a June 2, 2010 email sent to various VAPHS officials, Dr. Patel indicated that he was notified of Dr. Klein's imminent retirement and requested conversion to a full-time physician position in the Nuclear Medicine Department. Id. at ¶ 50. Dr. Klein retired from his part-time nuclear medicine position effective June 30, 2010. Id. at ¶ 51. In a Memorandum dated July 1, 2010, and addressed to Director Terry Wolf (the CEO of VAPHS and supervisor of over 3,100 employees), Dr. Patel again requested conversion to a full-time position in the Nuclear Medicine Department. Id. at ¶ 52, 60. Director Wolf responded to Dr. Patel's request and indicated that Dr. Patel needed to route his request through both the Chief of Staff, Dr. Sonel, " with a complete workload analysis and justification," and through the Associate Director in charge of position management. Id. at ¶ 53. Dr. Sonel told Dr. Patel to " keep in mind that all staffing plans must be driven by the needs of our Veterans and not by the need or desires of our providers." Id. at ¶ 54.

e. The GlidePath fiscal plan and Dr. Patel's termination.

In a June 22, 2011 Memorandum, Director Wolf notified all Vice Presidents/Service Chiefs of the " GlidePath" fiscal plan and requested that they review their organizational charts to determine where cuts and manpower reductions could be made. Id. at ¶ 60. GlidePath was a national initiative for the entire Veterans Health Administration to examine the VA's allocation of resources to identify operations that were not as efficient as others. Id. at ¶ 61. Upon receipt of Director Wolf's GlidePath Memorandum, Chief of Staff Dr. Sonel sent an email to all departments and service lines asking them to evaluate such matters as physician workforce; opportunities for increasing efficiencies in the clinical work being performed by the VA's legacy programs; the productivity of each physician; and to provide a list of part-time physician providers who might no longer be needed. Id. at ¶ 63. Dr. Sonel directed his managers to consider the following factors: (1) the ability of existing full-time providers to absorb the workload of part-time providers; (2) the breadth of the skill set offered by part-time providers; and (3) the ability of part-time providers to be able to cross over other providers within the relevant specialty. Id. at ¶ 64.

In an email dated June 28, 2011, Dr. Akwayena, the Acting Chief of Imaging Services, responded to Dr. Sonel's request

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for a GlidePath analysis and ranked Dr. Patel as the first physician to be eliminated should a workforce reduction be necessary. Id. at ¶ 66. Dr. Akwayena concluded that (1) Dr. Patel's workload could be absorbed by other full-time physicians; (2) Dr. Patel's skill set did not include the interpretation of PET/CT scans; and (3) cross-coverage of nuclear medicine duties could be performed by qualified radiologists. Id. at ¶ 67. Dr. Sonel concurred in Dr. Akwayena's recommendation. Id. at ¶ 69. Dr. Patel was officially notified and given a letter of termination on December 2, 2011. Id. at ¶ 74. In addition to Dr. Patel, several other part-time VA physicians had their appointments terminated as a result of the GlidePath reduction. Id. at ¶ 76; see Ex. 36 (Def.'s Resp. to Interrog. No. 1).

f. Dr. Patel's age discrimination claims.

On March 28, 2012, Dr. Patel sought EEO counseling where he alleged discrimination based on age, and on April 1, 2012, he was notified that he could either file an EEO Complaint or pursue a direct action in federal court. Id. at ¶ 79.[2] Dr. Patel contends that he made verbal complaints to VAPHS about age discrimination on the following occasions: (1) August 2010 to Dr. Shah; (2) September 2010 to Dr. Shah; (3) October 2010 to Dr. Sonel; (4) November 2010 to Dr. Sonel; (5) January 2011 to Dr. Akwayena; and (6) March 2011 to Dr. Sonel. Id. at ¶ 85. Dr. Patel identified Dr. Sonel and Director Wolf as the two persons who retaliated against him for this " opposition conduct" because they were the administrative authorities responsible for the termination decision. Id. at ¶ 84. Dr. Patel made no allegation that he made verbal complaints of age discrimination to Director Wolf. Id. at ΒΆ ...

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