United States District Court, W.D. Pennsylvania
health care provider deciding when one of its contracted
surgeons may return to her surgery duties after a short-term
disability based upon an independent medical examination
showing the surgeon suffered from recent onset of
post-traumatic stress disorder may justifiably rely upon the
independent medical examination in delaying her return until
the provider receives a later independent examination
removing the disability concern. The employee surgeon's
word, or the summary word of her long-time doctor, does not
necessarily override the independent medical examiner's
finding. Upon receiving an independent contrary finding, the
employer may allow the surgeon to return to her duties. When
the employer later opts out of the automatic renewal of the
surgeon's contract or not rehire her at a lower salary or
with different terms, the employee surgeon may proceed to
trial on disability discrimination and retaliation if she
adduces sufficient evidence challenging the employer's
stated legitimate financial reasons for this employment
decision. In the accompanying Order, we grant the
employer's motion for summary judgment and dismiss the
employee surgeon's discrimination and retaliation claims
arising from a delayed return from short term disability but
deny the motion as to whether the employer's decision not
to rehire the surgeon is pretext for disability
discrimination or retaliation.
Undisputed material facts.
Kirsten Engle is a general surgeon. On November 5, 2012, Dr.
Engle began her two-year contractual term of employment with
Physician Landing Zone, a physician practice plan established
by Highmark, Inc. Her employment contract automatically
renewed unless Physician Landing Zone decided in writing to
not automatically renew. Dr. Engle worked, at least
initially, at West Penn Hospital. As a general surgeon at West
Penn Hospital, Dr. Engle worked every day of the week seeing
patients, taking calls, interacting with residents, doing
consultations, and performing surgery.
A car accident results in serious injuries for Dr.
Engle's 8 year old son.
April 2013, Dr. Engle's eight-year-old son sustained
life-threatening injuries- including a skull fracture-when a
car struck him. The incident admittedly overwhelmed Dr.
Engle, and she struggled with her ability to cope with the
situation. Soon after the incident, Dr. Engle stopped
working. In mid-May 2013, she applied for
short-term disability leave.
Bernard Grumet served as Dr. Engle's primary care
physician. Dr. Grumet supported Dr. Engle's
application for short-term disability leave. Highmark
granted her short-term disability benefits from May 13, 2013
through August 9, 2013.
An IME finds Dr. Engle disabled.
2013, Dr. Michael Mihok-a medical consultant handling
Highmark's leave management issues-recommended Dr. Engle
undergo an independent medical examination
(IME). Dr. Mihok recommended the IME for the
purpose of determining Dr. Engle's short-term disability
status, and the IME psychiatrist-Dr. Lawson
Bernstein-understood this to be his sole
August 9, 2013, Dr. Engle saw Dr. Bernstein. Later in
August 2013, Dr. Bernstein submitted a written report
concluding Dr. Engle suffered from post-traumatic stress
disorder due to her son's life-threatening
injuries. He found this diagnosis
"obvious." Based on this diagnosis, Dr. Bernstein
found Dr. Engle disabled.
Dr. Bernstein's sole purpose for conducting the IME
consisted of determining her eligibility for short-term
disability, Dr. Bernstein also made findings regarding Dr.
Engle's fitness for duty and current treatment
regime. Dr. Bernstein explained Dr. Engle's
medical condition rendered her "unsafe to operate due to
the adverse effects" of her symptoms on her
"attention and concentration." He found Dr.
Engle experienced "notable psychomotor agitation, "
which "appeared to be unconscious and
real." Dr. Bernstein opined Dr. Engle's
"nightmares, flashbacks, and recurrent intrusive
thoughts of the accident likely would make it impossible for
her to tolerate an OR or hospital practice
setting." Dr. Bernstein also concluded Dr.
Engle's "current treatment regime is wholly
inadequate" and found it "imperative that [Dr.
be managed locally by a psychiatrist with specific
expertise in the management of complicated post-traumatic
stress disorder." He predicted Dr. Engle could return
to work within six to twelve months. Dr. Mihok, upon receiving
Dr. Bernstein's report, recommended extending Dr.
Engle's disability leave.
Based on Dr. Bernstein's opinion, Physician Landing Zone
delays Dr. Engle's return to work.
August 2013, Dr. Engle asked Marilyn Blaine of Highmark's
Leave Management what she needed to do to return to
work. Ms. Blaine told Dr. Engle she needed to
seek clearance from her long-time psychiatrist, Thomas Lewis,
M.D., as long as Dr. Engle saw Dr. Lewis in California, where
he is licensed.
September 2013, Dr. Engle, at her own expense, flew to meet
with Dr. Lewis in California. On September 16, 2013, Dr.
Lewis had an appointment with Dr. Engle. Dr. Lewis
fully released Dr. Engle to work as a surgeon as he believed
with a reasonable degree of medical certainty she could
capably and competently perform her job. Dr. Lewis
filled out a return to work checklist Highmark sent to him,
and he returned it to Highmark. Dr. Lewis also provided
Physician Landing Zone with Dr. Engle's work
October 23, 2013, Marie Hare-Highmark's Manager of
Employee Corporate Health Services in Leave
Management-told Dr. Engle, "objective medical
information received to date does not provide evidence to
support that you are able to safely return to your duties as
a surgeon." Ms. Hare told Dr. Engle, "[Y]our
company has been advised you are not authorized to return to
work and will remain on paid STD leave through November
17th, 2013 at which time; your STD
benefits will exhaust and your claim will be submitted for
Long-Term Disability consideration." Ms. Hare
based her decision on Dr. Bernstein's August 9, 2013 IME
and "the lack of any subsequent medical evidence to
support that you received adequate treatment for your
condition." Ms. Hare informed Dr. Engle of her right
to appeal by November 7, 2013, and provide all medical
information she wished to have considered.
November 3, 2013, Dr. Lewis responded to Ms. Blaine's
refusing to allow Dr. Engle to work. Dr. Lewis stated he
treated Dr. Engle for sixteen years and has seen or spoken
with her weekly during that time period. Dr. Lewis
explained, "While it is true that she had some acute
emotional upset in the wake of her son's near-lethal
accident, she has coped well with that stressful event and
has been fully recovered for some time
now." Dr. Lewis concluded Dr. Engle "is
not disabled, and she is fully competent to resume her former
duties as a surgeon." Although Dr. Lewis offered to
provide additional information Ms. Blaine required,
Ms. Blaine did not ask Dr. Lewis for further
Mihok, instead of contacting Dr. Lewis and requesting more
information from him, requested more information from Dr.
Bernstein. On November 15, 2013, Dr. Mihok provided
Dr. Bernstein the mental abilities checklist completed by Dr.
Lewis as well as Dr. Lewis' letter clearing Dr. Engle for
work. Dr. Mihok asked Dr. Bernstein to review
the materials and state whether the materials changed his
earlier opinions concerning Dr. Engle's
November 19, 2013, Dr. Bernstein responded to Dr. Mihok's
request concluding Dr. Lewis's findings were
"underwhelming" and "uncompelling, " in
part due to the lack of treatment records identifying
"specifically what was done to remit Ms. Engle's
PTSD symptomology. Dr. Bernstein continued to insist Dr.
Engle suffered from PTSD and required evidence-based
treatment. Dr. Bernstein also expressed concern
with Dr. Engle's dosage of benzodiazepine klonopin,
suggesting they contribute to "significant sleep
December 2013, Dr. Engle spoke with Ms. Hare about Dr.
Bernstein's decision. Ms. Hare told Dr. Engle she
had "no mechanism" to return Dr. Engle to West Penn
Hospital in light of Dr. Bernstein's IME
December 30, 2013, Dr. Engle emailed Kelley
Benson-Highmark's Manager of Employee'Relations-in
which she relayed her conversation with Ms.
Hare. Dr. Engle asked whether Physician
Landing Zone had terminated her in light of Ms. Hare's
finding "no mechanism" exists to return Dr. Engle
to West Penn Hospital.
response, Ms. Benson told Dr. Engle she had not been
terminated. Although Ms. Benson claimed Dr.
Bernstein had requested Dr. Lewis's treatment notes for
review on multiple occasions and the information had not been
provided,  Dr. Engle swears no one asked her to
provide Dr. Lewis's treatment notes. Dr. Lewis
offered to provide information, but no one asked him to
provide treatment notes. Ms. Benson told Dr. Engle she either
needed to participate in Dr. Bernstein's recommended
treatment plan or have Dr. Lewis submit his treatment notes
by January 16, 2014.
January 14, 2014, Dr. Engle told Ms. Benson her internist
also deemed her fit to return to work. Dr. Engle
questioned what treatment she required given Dr. Lewis'
conclusion she did not need additional treatment and she did
not know what treatment Dr. Bernstein recommended: "The
letter from [Ms. Hare] dated 8/30/2013, asked me to find a
psychiatrist to treat me and notify Marilyn Blaine. I did.
She approved my trip to be seen by Dr. Lewis. He evaluated me
and deemed I needed no further treatment.... What treatment
should I receive?"
January 26, 2014, Dr. Engle spoke with Ms. Hare by
telephone. Dr. Engle told Ms. Hare about Ms. Blaine
allowing her to get Dr. Lewis to clear her for
work. Dr. Engle questioned why she needed
further treatment for a disorder she no longer
had. Ms. Hare insisted Dr. Engle provide a
record of treatment for PTSD. Dr. Engle explained she did
not believe she ever had PTSD, rather she suffered from the
stress of the incident, and even if she did have PTSD it has
resolved. Ms. Hare then said Dr. Bernstein had
concerns about the high medication doses, which Dr. Lewis did
not address. Dr. Engle responded no one asked Dr.
Lewis to address the medication issue, and regardless, she
had been taking this medication since the date of her
hire. Dr. Engle told Ms. Hare she disclosed
her medication and dosage at the time of her
hire. Ms. Hare asked Dr. Engle if she would be
willing to see Dr. Bernstein again, to which Dr. Engle
answered, "no" because she did not like him and she
believed he would want to protect his earlier
diagnosis. Ms. Hare also stated Dr. Lewis was
biased because Dr. Lewis had treated Dr. Engle for so
January 30, 2014, Dr. Engle wrote Ms. Benson questioning why
Dr. Bernstein has been involved in the determination of Dr.
Engle's fitness to return to work when his responsibility
only consisted of determining whether Dr. Engle qualified for
short-term disability leave. Dr. Engle again questioned why
Dr. Bernstein's IME trumped Dr. Lewis's opinion when
she had received permission to have Dr. Lewis clear her for
work after Dr. Bernstein's IME.
these objections, Dr. Engle agreed to see a neutral
third-party psychiatrist to resolve the issue.
A third-party psychiatrist clears Dr. Engle for
early 2014, Dr. Engle met with Dr. Christine Martone-a
third-party psychiatrist-for an IME. On February 18, 2014, Dr.
Martone found Dr. Engle had no psychiatric problems
precluding her from safely performing surgery or interacting
with patients. Dr. Martone concluded Dr. Engle did not
pose a risk for disruptive behaviors, verbal outbursts, or
serious interpersonal difficulties in the
workplace. Dr. Martone also concluded although Dr.
Engle's dosage of Klonopin is high, she has functioned
"quite well" with this dosage for many
years. Dr. Martone released Dr. Engle to full
duty without accommodation.
Martone also found Dr. Bernstein and Dr. Grumet's PTSD
diagnoses inaccurate because Dr. Engle had not been the
victim of the accident and did not witness the
accident. Dr. Martone opined the appropriate
diagnosis most likely constituted an exacerbation of Dr.
Engle's pervious mood disorder or "possibly a
superimposed adjustment disorder with mood or anxiety
disturbances." Because Dr. Engle lacked PTSD, Dr.
Martone believed Dr. Bernstein's recommended course of
treatment-including cognitive behavioral therapy-would be
inappropriate. Dr. Martone suggested Dr. Engle continue
her current course of treatment with Dr. Lewis.
February 19, 2014, the day after Physician Landing Zone
received Dr. Martone's report, Physician Landing Zone
authorized Dr. Engle to return to work and placed her back on
mid-April 2014, Dr. Engle returned to active duty as a
general surgeon at West Perm Hospital. When Dr.
Engle returned to work, Physician Landing Zone did not
provide her the same advertising or signage other general
surgeons received. For example, Physician Landing Zone gave
a new general surgeon, Dr. Jason Tomsic, business cards and
an advertising brochure, but did not provide the same to Dr.
Engle. Instead, Physician Landing Zone placed
Dr. Engle in an office with a colorectal surgeon, away from
the other general surgeons.
Physician Landing Zone timely notifies Dr. Engle of
its intent to not renew her employment contract.
Engle and Physician Landing Zone's two year employment
agreement ended on November 4, 2014. The agreement required
Physician Landing Zone provide written notice of intent to
not renew the agreement at least 120 days before ending the
agreement or it would automatically renew for another
25, 2014, Dr. Howard Edington-Chairman of Surgery for
Allegheny Health Network-and Dr. Tony Farah-Chief Medical
Officer of Allegheny Health Network- informed Dr. Engle of
their intent to not renew her two year employment
contract. They stated, however, "We are very
interested in our continued relationship but would like the
opportunity to review our contract terms and make adjustments
as appropriate." They told Dr. Engle they would reach
out to Dr. Engle to schedule a meeting to explore
Dr. Engle files this lawsuit.
September 4, 2014, Dr. Engle sued Highmark (doing business as
Physician Landing Zone). Dr. Engle later amended her Complaint
in December 2014 and September 2015, adding claims and
changing the named defendant to Physician Landing
The parties' post-lawsuit meetings to explore employment
September 26, 2014 meeting.
September 26, 2014, Dr. Engle met with Dr. Edington and Suzie
Mercadante, the Service Line Vice President for the Allegheny
Clinic. During the meeting, Dr. Edington told
Dr. Engle her relative value units (RVUs) were not high
enough to pay for her salary and her current salary was too
high based on her productivity.
unclear whether Physician Landing Zone considered the
appropriate time period when determining Dr. Engle's
productivity. At his deposition, Dr. Edington initially
claimed the company determined Dr. Engle's anticipated
productivity level by looking at her billing and RVUs
before her disability leave. Dr.
Edington later stated they looked at all the times Dr. Engle
had been "actively working." Dr. Engle
claims Dr. Edington told her they considered their financial
investment in her over the entire course of her
employment. Dr. Engle recalls Dr. Edington saying
the company had "employed me for two years, spent
pushing three-quarters of a million dollars, including my
salary, on setting up my practice, and that my RVUs were not
high enough .... That the RVUs didn't pay for my
response to Dr. Edington's claims about her productivity
level, Dr. Engle told Dr. Edington she did not believe he
calculated her RVUs appropriately. She prepared a binder
containing RVUs she knew had not been billed or counted in
her favor from the date of her hire to the date of her
leave. Dr. Engle told Dr. Edington they
failed to consider her RVUs from her work in
Connellsville. Dr. Engle also said she had been
useful in other ways for which she did not typically get RVUs
by, among other things, training another physician and
helping Dr. Tomsic in the operating room.
Edington responded he was not interested in Dr. Engle's
binder and he knew they had not billed for the charts and
documentation in the binder. Ms. Mercadante stated she
would get the Connellsville RVUs information. It is
unclear whether she did. Ms. Mercadante offered to provide
Dr. Engle with a graph or pie chart outlining her RVUs, and
she provided Dr. Engle with a document later the same week
which covered RVUs from January 2014 through
parties dispute whether Dr. Engle refused to discuss a salary
reduction. Dr. Engle testified the parties never discussed
working with a salary reduction. Dr. Edington claims
they discussed a salary reduction. Dr. Edington did not
prepare a new contract, and he admits they did not discuss
potential terms of a new contract. Similarly, Ms.
Mercadante recalls Dr. Edington said something to Dr. Engle
about her having the ability to stay with a pay cut, but Ms.
Mercadante does not recall Dr. Engle being willing to take a
the same September 26, 2014 meeting, Dr. Edington mentioned
the possibility of Dr. Engle working at other
places. According to Dr. Edington and Ms.
Mercadante, they discussed opportunities in which Dr. Engle
would work at these other places through Physician Landing
Zone. Dr. Engle counters these were
positions she would have to pursue independently, not as an
employee of Physician Landing Zone.
Engle told Dr. Edington she thought she was being let go in
retaliation for filing a lawsuit against Allegheny Health
Network. In response, Dr. Edington said he did
not want to talk about the lawsuit.
The October 11, 2014 meeting.
October 11, 2014, Dr. Engle met with Dr. Edington and Belinda
Koontz-an administrative worker-at Dr. Edington's
Allegheny General office. During the meeting, Dr.
Edington told Dr. Engle she could "explore" working
on a more regular basis with Highlands Hospital in
Connellsville, but he did not tell her an opportunity
existed. Dr. Edington presented this
opportunity not as a job offer, but as something Dr. Engle
would need to pursue independently. They did not discuss
the option of Dr. Engle continuing to work with Physician
Landing Zone with a salary reduction.
Physician Landing Zone discovers Dr. Engle retained
confidential patient records.
this litigation, Dr. Engle produced a thumb drive containing
confidential and sensitive patient medical information for
143 individuals, including patients of Physician Landing
Zone. The parties dispute whether Physician
Landing Zone authorized Dr. Engle to retain these
Engle sued Physician Landing Zone for disability
discrimination and retaliation under the Americans with
Disabilities Act of 1990 and the Pennsylvania Human
Relations Act ("PHRA"). Physician Landing Zone
counterclaimed for breach of the employment contract and
conversion. Physician Landing Zone now moves for
summary judgment on all of Dr. Engle's
claims. In the accompanying Order, we grant in
part and deny in part Physician Landing Zone's motion.
Dr. Engle's claims based on disability discrimination
under the ADA and PHRA.
Engle argues two bases for disability discrimination. She
argues Physician Landing Zone discriminated against her on
the basis of disability by: (1) refusing to allow her to
return to work until after February 2014; and, (2) declining
to automatically renew her two year contract.
We grant summary judgment as to Dr. Engle's disability
discrimination claim based on Physician Landing Zone's
failure to return her to work.
Landing Zone argues Dr. Engle fails to establish a prima
facie case for disability discrimination because she
posed a direct threat to the health or safety of others.
Physician Landing Zone also argues Dr. Engle failed to prove
its proffered reasons for precluding Dr. Engle's earlier
return to work were a pretext for disability discrimination.
Because we find Physician Landing Zone demonstrates Dr. Engle
posed a direct threat to patient safety based on a fulsome
independent medical examination, we do not address whether
Dr. Engle establishes pretext.
establish a. prima facie case of ADA discrimination,
Dr. Engle must show she: (1) is disabled; (2) qualified to
perform the essential functions of the job, with or without
reasonable accommodations; and (3) has suffered an otherwise
adverse employment decision as a result of
discrimination. Physician Landing Zone disputes the
second element, arguing Dr. Engle was not qualified because
she could not perform the essential functions of her job
without endangering the health or safety of others,
i.e. Dr. Engle posed a "direct threat" to
the health and safety of others.
the ADA, the term "direct threat" appears in a
section entitled "Defenses." In this
section, it is "a defense . . . that an alleged
application of qualification standards . . . that
screen out or tend to screen out or otherwise deny a job or
benefit to an individual with a disability has been shown to
be job-related and consistent with business necessity, and
such performance cannot be accomplished by reasonable
accommodation . . . ." The term
"qualification standards" includes "a
requirement that an individual shall not pose a direct threat
to the health or safety of other individuals in the
existence of a direct threat is an affirmative defense to be
proved by the employer.The relevant regulations
define "direct threat" as "a significant risk
of substantial harm to the health or safety of the individual
or others that cannot be eliminated or reduced by reasonable
accommodation." An employer must base this
determination on an "individualized assessment of the
individual's present ability to safely perform the
essential functions of the job." The
assessment must "be based on a reasonable medical
judgment that relies on the most current medical knowledge
and/or on the best available objective
evidence." When determining whether an individual
poses a direct threat to the health or safety of others, the
factors to be considered include: "(1) The duration of
the risk; (2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm."
"[B]ecause few, if any, activities in life are risk free
... the ADA does not ask whether a risk exists, but whether
it is significant." "[C]ourts and entities
deciding whether to exclude the disabled must rely on
evidence that 'assesses the level of risk' for the
'question under the statute is one of statistical
employer is not obligated to give weight to an employee's
treating physician when determining an employee's
disability status. For example, in Coleman v.
Pennsylvania State Police, the Pennsylvania State
Police's doctor determined officer Coleman could not
return to full duty because he had not been free of seizures
for five consecutive years, a policy created by the
doctor. The doctor required five years free of
seizures because the relevant statistics demonstrated a
person who suffered two seizures is 75 to 90 percent likely
to suffer a third within a five-year period. After the
Pennsylvania State Police sent Coleman a termination letter,
Coleman provided documentation from his treating physician
releasing him to work because the risk of seizure was, at
best, three percent. The Pennsylvania State Police
doctor reviewed the treating physician's work clearance
documentation but maintained his conclusion Coleman could not
return to full duty. Our Court of Appeals held the
Pennsylvania State Police "adequately explained that the
threat of a seizure is significant enough to constitute a
'direct threat' and that the [seizure policy] is a
justified response to that threat." Coleman
argued his doctor's opinion about the likelihood of a
seizure contradicted the Pennsylvania State Police's
doctor's opinion on the likelihood of a recurring
seizure. Our Court of Appeals held,
"[u]nfortunately for Coleman, there is no law to bar
[employer] from trusting its own physician's assessment
of risk over that provided by Coleman's treating
in Haas v. Wyoming Valley Health Care System, the
defendant argued the plaintiff surgeon-who suffered from
bipolar disorder-posed a direct threat to the safety of
patients. During the trial, the defendant
presented testimony about an incident in which the plaintiff
had a psychotic episode during an operation. During
the episode, the plaintiff "became confused, and
required significant assistance to complete a total knee
replacement." The episode did not result in any harm
to anyone, but it raised concerns among staff about patient
safety. The jury returned a verdict in the
plaintiffs favor. Judge Caputo, however, overturned the
verdict, finding the defendant entitled to judgment as a
matter of law because no reasonable juror could find the
plaintiff did not pose a direct threat to patient
safety. The judge did so even though the
plaintiff presented two letters from psychiatrists purporting
to demonstrate the plaintiffs ability to work. The judge
noted the defendant's doctor reviewed the letters and
found them "unconvincing."
also face competing medical positions presented to the
employer. On balance, Physician Landing Zone meets its burden
of demonstrating a direct threat. After conducting an IME,
Dr. Bernstein concluded in August 2013 Dr. Engle was disabled
and could not perform the work of a surgeon in part due to
safety concerns: "With her PTSD symptomatology as well
as the other associated phenomena noted above, she is unsafe
to operate due to the adverse effects these would have on
attention and concentration." He found Dr. Engle
experienced "notable psychomotor agitation, " which
"appeared to be unconscious and
real." Dr. Bernstein found Dr. Engle's
"nightmares, flashbacks, and recurrent intrusive
thoughts of the accident likely would make it impossible for
her to tolerate an OR or hospital practice
setting." Following Dr. Bernstein's IME, Dr.
Engle provided documentation from her treating psychiatrist
clearing her for work and finding no disability. After
reviewing this information, Dr. Bernstein maintained his
opinion, based in part on the conclusory nature of the work
clearance and the lack of treatment records demonstrating
steps taken to remit Dr. Engle's symptoms. More than six
months after Dr. Bernstein's IME, Dr. Martone concluded
Dr. Engle did not suffer from PTSD.
the direct threat factors, Dr. Bernstein's findings
demonstrate Dr. Engle posed a risk which would last
throughout a surgical operation. As Dr. Engle concedes, the
severity of the potential harm here is great, as a patient
could be harmed if Dr. Engle's purported deficits
affected her ability to operate safely. In finding Dr. Engle
unsafe to operate due to her symptoms, Dr. Bernstein
implicitly found the likelihood of potential harm to be great
Landing Zone relied on Dr. Bernstein's reasonable medical
judgment, and it was not obligated to give more weight to the
opinion of Dr. Engle's treating
psychiatrist. Dr. Bernstein rendered his opinions
upon reviewing Dr. Engle's available medical records and
conducting an in-person physical examination. For the
purposes of the direct threat analysis, it is not our role to
second guess an employer's reasonable medical judgment
based on the best available objective evidence.
grant summary judgment as to Dr. Engle's claim Physician
Landing Zone discriminated against her on the basis of
disability by refusing to allow her to return to work because
Physician Landing Zone demonstrated Dr. Engle posed a direct
threat to patient safety until it resolved her ability to
return to surgery.
We deny summary judgment as to Dr. Engle's disability
discrimination claim based on Physician Landing Zone's
decisions to not renew her contract and to not rehire
Landing Zone argues Dr. Engle cannot demonstrate its
legitimate financial reasons for electing not to renew her
two year employment contract upon her return to work were
pretext for disability discrimination or retaliation. As we
find several issues of material fact, we disagree and will
allow the jury to evaluate the stated reasons for not
automatically renewing the employment agreement.
Engle may use the McDonnell Douglasburden-shifting scheme in overcoming a
motion for summary judgment on her disability discrimination
claims. After a plaintiff establishes a
prima facie case, the burden shifts to the employer
to articulate a legitimate, nondiscriminatory reason for its
adverse employment decision. The burden then shifts back
to the plaintiff to (1) discredit "the proffered reasons
for termination, directly or circumstantially, " or (2)
adduce "evidence that discrimination was more likely
than not a motivating or determinative cause of the adverse
action." To discredit Physician Landing
Zone's proffered reasons, Dr. Engle must demonstrate
"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
legitimate, nondiscriminatory reason, Physician Landing Zone
states it did not want to automatically renew Dr. Engle's
contract because her productivity did not justify her
compensation. Physician Landing Zone also contends
the parties discussed the possibility of a contract but did
not get to the point of discussing specific
Engle demonstrates sufficient evidence allowing a jury to
discredit Physician Landing Zone's proffered reasons.
Although Physician Landing Zone claimed a shortfall in Dr.
Engle's productivity, there is a genuine dispute of
material fact over whether Physician Landing Zone considered
all of the materials demonstrating Dr. Engle's
productivity. During Dr. Engle's meeting with Dr.
Edington and Ms. Mercadante, Dr. Engle offered to provide
them a binder of unbilled RVUs. In response, Dr. Edington
said he was not interested in Dr. Engle's binder and he
knew they had not billed for the charts and documentation in
the binder. This raises a genuine issue of
material fact over whether Physician Landing Zone based its
decisions on Dr. Engle's productivity.
is also a genuine dispute of material fact over whether the
parties discussed a salary reduction. Dr. Edington claims the
parties discussed a new contract with a salary
reduction. Dr. Engle, however, claims they did
not discuss whether she could continue working with a salary
reduction. This inconsistency raises a genuine
issue of fact for trial. We deny summary judgment as to Dr.
Engle's discrimination claim based on Physician Landing
Zone's decision to not automatically renew the employment
contract or rehire her after they recently disputed her
disability with her.
Dr. Engle's retaliation claims.
Engle argues Physician Landing Zone retaliated against her
by: (1) refusing to allow her to return to work; and, (2) not
renewing her contract.
We grant summary judgment as to Dr. Engle's claim
Physician Landing Zone retaliated against her for refusing to
allow her to return to work as a surgeon.
establish a. prima facie case of retaliation, Dr.
Engle must demonstrate: "(1) protected employee
activity; (2) adverse action by the employer either after or
contemporaneous with the employee's protected activity;
and (3) a causal connection between the employee's
protected activity and the employer's adverse
Landing Zone argues Dr. Engle cannot demonstrate a causal
connection between protected activity and its decision to
refuse to permit Dr. Engle to return to work. Relatedly,
Physician Landing Zone argues Dr. Engle cannot demonstrate
its decision to refuse to ' permit Dr. Engle to return to
work constituted pretext.
not address whether Dr. Engle demonstrates a causal
connection because she fails to demonstrate Physician Landing
Zone's decision to refuse to permit Dr. Engle to return
to work is pretextual. As explained above, Physician Landing
Zone satisfied its burden of demonstrating Dr. Engle posed a
direct threat to the safety of patients. Under the ADA, the
direct threat defense is "a defense to a charge of
discrimination under this chapter, " which necessarily
includes a charge of discrimination alleging retaliation
under 42 U.S.C. § 12203(a), which falls under the same
chapter. Because Physician Landing Zone's
demonstrates Dr. Engle posed a direct threat to patient
safety, we must grant summary judgment on this claim.
We deny summary judgment as to Dr. Engle's retaliation
claim based on Physician Landing Zone's decisions to not
renew her contract.
summary judgment as to Dr. Engle's retaliation claim
based on Physician Landing Zone's decisions to not renew
her contract and to not rehire her. Physician Landing
Zone's sole argument is Dr. Engle cannot demonstrate its
reasons are pretextual. We reject this argument for the same
reasons addressed above including finding a genuine dispute