United States District Court, M.D. Pennsylvania
THOMAS L. BAUER, M.D. Plaintiff,
v.
WELLSPAN MEDICAL GROUP Defendant.
MEMORANDUM
SYLVIA
H. RAMBO United States District Judge
In this
employment discrimination action, Plaintiff alleges that his
former employer discriminated against him because of his age
by not renewing his contract and terminating his employment
in violation of the Age Discrimination in Employment Act.
Presently before the court are Defendant's motion for
summary judgment and Plaintiffs motion for leave to file an
amended complaint. For the reasons stated herein,
Plaintiff's motion to amend his complaint will be denied
and Defendant's motion for summary judgment will be
granted.
I.
Background
In
considering the instant motions, the court relied on the
uncontested facts, or where the facts were disputed, viewed
the facts and deduced all reasonable inferences therefrom in
the light most favorable to the nonmoving party.
A.
Facts
Defendant
Wellspan Medical Group (“Wellspan” or
“Defendant”) is a Pennsylvania non-profit,
non-stock corporation with its sole member being Wellspan
Health. (Doc. 27-2, p. 2 of 94.) Wellspan Health is also a
non-profit, non-stock corporation and a health care provider.
(Id.) Dr. Thomas McGann (“Dr. McGann”)
was President of Wellspan at all times relevant to this
matter. (Id. at 69-70 of 94.)
Plaintiff
Thomas L. Bauer, M.D. (“Plaintiff”) is a board
certified general surgeon specializing in breast cancer
surgery. (Id. at 10 of 94.) He was employed by Apple
Hill Surgical Associates (“Apple Hill”) from
August 1970 through December 2008, when he retired pursuant
to the practice's mandatory retirement policy which
required all physicians to retire at age seventy.
(Id. at 19-20 of 94.) Upon retiring from Apple Hill,
Plaintiff joined Wellspan as a breast cancer surgeon on
December 18, 2008. (Id. at 16 of 94.) At the
commencement of his practice, the parties executed a
Professional Services Agreement (“the Agreement”)
under which Wellspan Medical Group agreed to employ Plaintiff
at a base salary of $275, 000 per year for an initial
two-year period. (Doc. 27-2, pp. 51-063 of 94.) After that,
Plaintiff's contract would renew automatically for one
year periods, unless either party decided to terminate the
contract prior to the renewal date. (Id.) The
Agreement included a list of Plaintiff's required duties
and responsibilities, which required, Plaintiff to
“conduct his . . . activities in accordance with the
conduct expected of all professionals who participate in the
care of patients . . .” and “to consistently
treat employees and patients in a professional, respectful
manner.” (Id.) The Agreement also directed
Plaintiff not to remove any of Wellspan's or York
Hospital's medical records from the hospital.
(Id.) Additionally, the Agreement required Plaintiff
to divest his shares in Apple Hill Surgical Center Partners,
LP, a company that owned a controlling share in Apple Hill
Surgical Center, within twenty-four months of employment.
(Id. at 11-12, 51-63 of 94.) Although Plaintiff
initially objected to this provision, he signed the
Agreement. (Id. at 71-72 of 94.)
Pursuant
to the Agreement, Wellspan leased office space for
Plaintiff's practice in a medical suite owned by Dr.
Marsha Bornt (“Dr. Bornt”) located within the
Apple Hill Health Campus in York, Pennsylvania. (Id.
at 23-24 of 94.) Dr. Bornt is the sole proprietor of Apple
Hill Gynecology and not employed by Wellspan. (Id.
at 90 of 94.) Defendant hired three staff members to assist
Plaintiff with his practice: Gale Bowman, a nurse; Lori
Bowman, a medical secretary; and Norma Hull (“Ms.
Hull”), a transcriptionist. (Id. at 19-22 of
94.)
In
February 2011, while at the office, Plaintiff and Lori Bowman
got into an argument. (Id. at 17-18 of 94; Doc.
27-3, pp. 10-13 of 85.) According to Plaintiff, he wanted to
leave the office to meet his wife, but Lori instructed him
that he had to finish dictating his charts or else she would
count his time out of the office as unpaid time off. (Doc.
27-2, p. 17 of 94.) Considering Lori to be out of line,
Plaintiff responded stating, “[Y]oung lady, who are you
talking to? Who do you think you are talking to?”
(Id. at 17-18 of 94.) Plaintiff then went to his
office and contacted Dr. Ronald Hempling (“Dr.
Hempling”), Vice President of Defendant's Surgical
Oncology Service Line, to ask whether Lori's behavior was
appropriate. (Id. at 17 of 94; Doc. 27-3, pp. 12-13
of 85.) While on the phone with Dr. Hempling, Gale Bowman
entered Plaintiff's office to intervene on Lori's
behalf. (Doc. 27-2, pp. 17, 18, 25 of 94; Doc. 27-3, pp.
12-14, 17-20 of 85.) In response, Plaintiff held up the phone
and said to Dr. Hempling: “[Y]ou want to know what
I'm going through? Listen to this bitch screaming at
me.” (Doc. 27-2, pp. 25-26 of 94; Doc. 27-3, pp. 12-13,
17-20 of 85.) In an attempt to diffuse the situation, Dr.
Hempling promptly met with Plaintiff and the three staff
members. (Doc. 27-2, p. 18 of 94.) Following that meeting,
Debra Kleyhauer (“Ms. Kleyhauer”), Administrative
Director for Defendant's Oncology Service Line, verbally
counseled Plaintiff that his behavior “was
inappropriate and unprofessional” and warned him
“that it [would] not be tolerated.”
(Id.; Doc. 27-3, pp. 14, 21 of 85.) Plaintiff
disagreed that his behavior was inappropriate, explaining,
“I didn't directly call her a bitch. I said listen
to this bitch screaming at me.” (Doc. 27-2, p. 26 of
94.) Plaintiff later acknowledged that his statement was not
“the most professional thing.” (Id.)
Several
months later, Wellspan and Plaintiff amended the Agreement.
While Plaintiff's compensation and duties remained the
same, the automatic yearly renewal clause, which the parties
referred to as the Evergreen Clause, was replaced with a
specific term indicating that Plaintiff's employment
“shall terminate on December 31, 2014, unless
terminated sooner pursuant to the terms of th[e]
Agreement.” (Doc. 27-3, p. 34 of 85.)
The
parties dispute the circumstances surrounding the amendment.
Plaintiff had not divested his shares of Apple Hill Surgical
Partners, LP, even though he had contractually agreed to do
so within twenty-four months and had been working for
Wellspan for almost three years at that point. (Doc. 27-3, p.
32 of 85.) On October 21, 2011, Dr. McGann sent Plaintiff a
letter demanding that he comply with his contractual
obligation. (Id.) In response, Plaintiff approached
Dr. McGann and requested that Wellspan replace the
Agreement's Evergreen Clause with a three-year-term
ending on December 31, 2014. (Doc. 27-2, pp. 76-78 of 94.)
According to Dr. McGann, Plaintiff explained, “I have
to work until I'm 75.” (Id.) Apparently
Plaintiff had certain financial obligations which he
wouldn't be able to satisfy if he divested his interest
in Apple Hill Surgical Center Partners, LP and, therefore, he
needed assurance that he would continue to work until he
reached 75 years old. (Id.) He did not want the
Evergreen Clause in his contract, which Plaintiff described
as “too risky.” (Id.) Dr. McGann agreed
to amend the Agreement, and on February 15, 2012, Plaintiff
finally sold his shares in Apple Hill Surgical Partners, LP.
(Id. at 65-66 of 94.)
Plaintiff
provides a different story of these discussions. He admits
that he approached Dr. McGann about a three-year contract in
response to Dr. McGann's insistence about selling his
shares. (Id. at 13-14 of 94.) But, according to
Plaintiff, his understanding was that his contract would
begin renewing automatically each year again after the
expiration of the three-year-term. (Id.) When Dr.
McGann presented the proposed amendment, Plaintiff
immediately noticed the missing Evergreen Clause and asked
Dr. McGann, “Where is the Evergreen Clause? I'm not
signing this.” (Id. at 14-15 of 94.) Plaintiff
claims that Dr. McGann responded, “By God, Tom,
you're going to be 76 year old at that time.”
(Id.) Dr. McGann also allegedly stated: “I
want to plant a seed in your head. And I want you to think
about renegotiating your contract for 2015 at least so you
can continue teaching and doing all your research with
Wellspan.” (Doc. 35-2, p. 4 of 70.) Dr. McGann denies
making either statement.
Regardless,
Plaintiff ended up signing the amendment as presented. (Doc.
27-2, p. 16 of 94.) When asked why he signed the amendment
without the Evergreen Clause, Plaintiff responded “I
don't know.” (Id.)
Meanwhile
problems continued at Plaintiff's office. Kathy Shields
Eberly (“Ms. Shields Eberly”), Dr. Bornt's
office manager, recalled in her deposition that Gale Bowman
often complained about the way Plaintiff treated her and
occasionally cried during these conversations.[1] (Id. at
37 of 85.) Ms. Shields Eberly shared an office space with
Gale and heard Plaintiff yell at his staff in front of
patients and say negative things about Wellspan to his
patients. (Id.) At some point, she spoke with Dr.
Bornt about these issues and noted that Apple Hill Gynecology
patients were sometimes present when Plaintiff acted in this
manner.[2](Id.; Doc. 27-2, pp. 90-91 of 94.)
On
August 16, 2013, Gale was assigned to work in the Radiation
Oncology Department because Plaintiff was not scheduled to
see any patients and the radiation department was short
staffed. (Doc. 27-3, p. 41 of 85.) Plaintiff's other
staff members were out that day so no one was available in
his office to answer the telephone. (Id. at 22, 41
of 85.) With the permission of Ms. Kleyhauer, Gale forwarded
the calls to the Radiation Oncology Department.
(Id.) If Gale was not available to take the call,
the call was sent to the voicemail for Plaintiff's office
and checked every thirty minutes. (Id.) That
morning, York Hospital's Imaging Department needed
Plaintiff's input prior to operating on a patient. (Doc.
27-2, pp. 28-29 of 94.) Staff at the York Hospital Imaging
Department attempted to reach Plaintiff at his office and,
when unsuccessful, called Plaintiff on his cell phone and
mentioned that his office phone was not being answered.
(Id.) Plaintiff proceeded to call his office twice
to determine why the phone was not being answered but each
time the receptionist answered, “Radiation
Oncology.” (Id. at 30 of 94.)
After
completing an operation, Plaintiff returned to his office-in
his words-“very, very angry” and “may have
used some language that wasn't very
nice.”[3] (Id. at 30-31 of 94; Doc. 27-3,
p. 23 of 85.) Gale began crying as a result of this
interaction. (Doc. 27-2, p. 30 of 94; Doc. 27-3, p. 36 of
85.) Plaintiff claims that he was angry with Wellspan, not at
Gale, for reassigning her to Radiation Oncology. (Doc. 27-2,
p. 31 of 94.) Gale, however, testified that his anger was
directed at her. (Id. at 30 of 94; Doc. 27-3, p. 23
of 85.)
In
response to this event, Ms. Shields Eberly went to Dr. Bornt
and threatened to quit unless Dr. Bornt ended Plaintiff's
lease in the shared office suite. (Doc. 27-2, p. 91 of 94;
Doc. 27-3, p. 38 of 85.) As Ms. Shields-Eberly explained,
“I have been working with physicians for over 40 years
now, and I feel that [Plaintiff] was the most unprofessional
physician I have ever worked with.” (Doc. 27-3, p. 38
of 85.) Concerned about her staff quitting and the effect
Plaintiff's behavior would have on Apple Hill Gynecology,
on August 19, 2013, Dr. Bornt sent a letter to Defendant
terminating the lease for space in her office suite in ninety
days. (Doc. 27-2, p. 91 of 94.)
Dr.
McGann was made aware of the August 16, 2013 incident the day
it occurred. He received reports that Plaintiff was
“extremely angry, ” “verbally abusive,
” and “us[ing] obscenities, including the F word,
” and that “people were in tears.”
(Id. at 74-75 of 94.) He was further told that the
incident did not occur in private but was “overheard by
staff of [Dr.] Bornt's office.” (Id. at 75
of 94.) The information was “of such a disturbing
nature” that Dr. McGann met with Plaintiff about it
immediately. (Id.) Dr. McGann scheduled another
meeting a week later, after Dr. Bornt officially terminated
the lease, and provided Plaintiff with a “formal first
and final written warning.” (Id. at 27, 74 of
94; Doc. 27-3, p. 45 of 85.) This warning letter required
Plaintiff to “behave in a professional, respectful,
gracious and courteous manner, ” and to “behave
in strict accordance with the WellSpan Medical Group provider
compact.” (Doc. 27-3, p. 45 of 85.) Plaintiff was also
required to self-refer to Defendant's employee assistance
program for anger management counseling. (Id.) The
letter also clearly indicated the consequences of
Plaintiff's failure to fulfill these expectations,
stating: “Should any behavior occur that does not meet
the expectations listed above, you will be subject to
immediate termination. In addition, any actions that are
perceived as retaliatory toward staff will have the same
consequence.” (Id.) Finally, the letter
described Dr. Bornt's decision to terminate the lease as
“both an embarrassment to our organization and a great
disservice to our patients.” (Id.)
On
September 3, 2013, Plaintiff sent Dr. McGann a letter
responding to the warning letter and providing his own
explanation of the August 16, 2013 incident. (Id. at
47-48 of 85.) Although Plaintiff believed that his staff
“had failed” him, he claimed that his frustration
was with Wellspan only and that, “[a]ny suggestion that
I had ‘blown my top' and was berating my nurse is a
complete fabrication and can only mean you were given bad
information.” (Id.) Plaintiff added: “I
presume that your letter of August 23 is in no way related to
my earlier request for an extension of the term of my current
contract past the end of the calendar year 2014. . . . At any
rate, my age appeared to be a sensitive issue for you.”
(Id. at 48 of 85.) On September 30, 2013, Dr. McGann
responded to Plaintiff's letter with “shock[] at
the tone and insinuations contained in [the] letter, ”
including Plaintiff's suggestion that “the
reprimand was a thinly veiled attempt at ageism.”
(Id. at 50 of 85.) Dr. McGann noted that he had
seriously considered terminating Plaintiff's employment
in response to the August 16th event, and urged
Plaintiff to “reconsider the responsibility that you
have for the situation in which you now find yourself.”
(Id.)
After
relocating Plaintiff's practice to a new location on
Bannister Street in York, Pennsylvania (hereinafter
“Bannister Street office”), Dr. McGann received
reports that Plaintiff was copying patients' records and
having inappropriate conversations with patients. (Doc. 27-2,
p. 94; Doc. 27-3, p. 8-9 of 74.) Dr. McGann and Karen Stough
(“Ms. Stough”), Senior Practice Manager for
Wellspan Surgical Oncology, met with Lori, Gale, and Kristina
Mahone (“Ms. Mahone”), who replaced Ms. Hull upon
retirement, at the Bannister Street office on October 15,
2013. (Doc. 27-2, p. 85 of 94; Doc. 27-3, p. 4-5 of 85.)
During this meeting, Lori and Gale complained that Plaintiff
had become increasingly difficult to get along with over the
past several years. (Doc. 27-3, p. 52 of 85.) Lori stated
that Plaintiff talked negatively about Wellspan to patients,
claiming that Wellspan was out to get him and blaming the
staff for his office relocation. (Id. at 6-9, 53 of
85.) The staff reported that patients appeared confused after
these interactions with Plaintiff. (Id.) Although
Gale and Lori complained that Plaintiff often approached them
in the hallway with a raised voice and put his finger in
their faces, they admitted that Plaintiff lost his temper
less frequently and stopped using profanity in the office
after receiving the warning letter. (Id. at 53 of
85.) All three women indicated that they feared Plaintiff
would retaliate against them for complaining about his
behavior. (Id.; Doc. 27-2, pp. 87-88 of 94.)
Dr.
McGann and Plaintiff also had a meeting on October 15, 2013,
at which time Plaintiff denied everything that his staff said
about him. (Doc. 27-3, p. 54 of 85.) Plaintiff also denied
discussing his warning letter, or disparaging Wellspan in any
way to patients, and stated that he told patients that the
practice moved to the Bannister Street office because it was
cleaner and larger. (Id.; Doc. 27-2, p. 35 of 94.)
He further claimed that his staff was setting him up in order
to remove him from practice. (Doc. 27-2, p. 38-39 of 94; Doc.
27-3, p. 54 of 85.) Based on these discussions, Dr. McGann
instructed Plaintiff to limit his conversations with patients
to clinical issues and not to mention Defendant or retaliate
against the staff in any way, and Plaintiff agreed. (Doc.
27-3, p. 54 of 85; Doc. 27-2, p. 39 of 94.)
However,
on April 15, 2014, Lori and Gale complained to Ms. Stough
that they had been receiving threatening and harassing phone
calls from Plaintiff and expressed concerns about working
with him. (Doc. 27-3, p. 57 of 85.) They also alleged that
Plaintiff had been copying every patient's “face
sheet, ” a portion of the patient's medical record
containing the patient's contact information and
treatment summary.[4] (Id.) According to Gale and Lori,
Plaintiff was telling patients that Wellspan was firing him
and that they should “google” him to find out
where he is practicing to make their appointment for the
following year. (Id.) These allegations concerned
Dr. McGann as Plaintiff's Agreement contained both a
non-solicitation clause, prohibiting Plaintiff from
soliciting Wellspan patients, and a ...