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Bauer v. Wellspan Medical Group

United States District Court, M.D. Pennsylvania

March 31, 2017

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 ...


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