By Harold S. Berman J.D.
A 67-year old physician fired by a medical organization after he tested positive for alcohol at a company function can proceed with his ADEA discrimination and retaliation claims, a federal district court in Arizona ruled. The court denied summary judgment on the discrimination claim, finding it disputed whether the physician was actually on duty or impaired at the event, or whether the organization’s alcohol policy was arbitrarily enforced against him. The court also denied summary judgment on his retaliatory termination claim because the organization’s decision to test him for alcohol could have ensued from his recent internal discrimination complaints. The court dismissed, however, the physician’s retaliation claim based on his performance improvement plan; that plan was not an adverse employment action and had been discussed before he complained (Starling v. Banner Health, January 11, 2018, Wake, N.).
Hired in 2004 by a health organization to serve as medical director of a hospital, the physician received excellent performance reviews, and in 2006 was promoted to Chief Medical Officer. However, by 2012 his supervisor and the CEO placed him on a performance improvement program (PIP) which addressed his leadership and personal skills. The CEO was sufficiently satisfied with his progress to end the PIP, and wrote positively about his performance over the next few years. The physician also received a company award in 2014 for exemplifying strong personal virtues.
New CEO. A new CEO arrived in March 2015. Shortly after, the hospital’s chief of staff met with her, and accused the physician of not interacting well with staff members. The CEO subsequently noted several inappropriate acts by the physician, such as slamming his fist down in a meeting, sending unprofessional emails, and failing to attend important meetings.
Complaint. By June 2015, his supervisor was investigating whether the physician’s retirement plan had vested, and was planning a “soft landing” retirement for him. Around the same time, the supervisor met with the physician to place him on a PIP. The physician claimed the conversation was sufficiently hostile that he retained legal counsel, and on June 16, filed an internal discrimination complaint. He claimed the supervisor and CEO immediately began treating him with hostility. The organization investigated the physician’s complaint and found no discrimination.
The PIP went in to effect in October 2015. The physician told the supervisor he thought the PIP was age discrimination and retaliation. In November his attorney notified the health organization of the physician’s intent to file suit.
Holiday event. On December 15, the organization held a holiday event, which the physician attended. The organization asserted that the physician, as Chief Medical Officer, “was required to work,” although the physician believed he was attending voluntarily as he had declined to attend many times before and had never been disciplined for it. He consumed three glasses of wine before the event. At the event, a coworker believed she smelled alcohol on his breath, and noted his unclear speech and abnormal body language. The HR director also noted abnormal speech and behavior, and the physician was asked to undergo a breathalyzer test. The results showed a blood-alcohol content of .043 (.02 was the cutoff point for a violation of the employer’s policy). At previous events, coworkers were not disciplined for drinking or required to submit to testing.
Termination. On December 17, 2015, the organization terminated the physician, claiming he violated its alcohol policy. He was 67, and was replaced by a 60-year old. His supervisor reported his behavior and positive test for alcohol to the state medical board. The physician sued, asserting claims under the ADEA, ADA, and state law.
ADEA discrimination. The court denied summary judgment on the ADEA discrimination claim for the physician’s termination, finding it disputed whether he was on duty or impaired at the event, or whether the organization’s alcohol policy was arbitrarily enforced against him. Although there were personality issues and he was placed on a PIP, he had a history of strong performance, and the PIPs were non-disciplinary. The organization also could not show that the physician’s personal demeanor declined, and there were no complaints about him from medical center staff. The physician was one of the oldest employees reporting to his supervisor, and both the CEO and supervisor asked him several times about succession planning, to which the physician replied he did not plan to retire for a few years. Further, at that time the organization was internally discussing a “soft landing” package, even though he had no plans for imminent retirement.
Moreover, a jury could find that the organization’s stated reason for firing him because of the alcohol test was pretextual. The organization’s policy forbid impairment from alcohol during work hours, and it was unclear whether the event counted as “work hours” because the physician didn’t sign up for a shift and attended voluntarily. Nor, given the conflicting evidence, was it clear that he was impaired at the event.
ADEA retaliation. The court also denied summary judgment on the retaliation claim based on his termination, concluding that a jury could find the organization’s decision to test and terminate him could have ensued from his recent internal complaints of discrimination and notice of intent to sue. However, the retaliation claim based on the PIP failed as a matter of law because the PIP was not an adverse employment action, and was discussed with the physician before he complained. The court also granted summary judgment on the retaliation claim based on the report to the state medical board, as Arizona law required the organization to send the report.
ADA. The court dismissed the physician’s ADA claim. He did not claim he was an alcoholic, or that he requested an accommodation, only that the organization may have regarded him as unfit to practice medicine because it reported his behavior to the state medical board. However, he did not show he was terminated as a pretext for his perceived disability of alcoholism, nor was there evidence that the organization was aware of any alcoholism before the event, or wanted to fire him for it.
State law retaliation claims. The court dismissed the physician’s retaliation claims against the organization, supervisor, and CEO for termination under the Arizona Employment Protection Act. There was no evidence to support the physician’s assertion that his prior clash with a coworker about credentialing standards poisoned the CEO against him and led to the “soft landing” package. The organization ultimately agreed with the physician’s viewpoint and did not lower its credentialing standards.
Intrusion upon seclusion. The physician’s claim that the organization and various employees intruded upon his seclusion by requiring him to undergo drug and alcohol testing also failed. He voluntarily entered the organization’s premises, was free to leave, and the testing procedure would not have been offensive to a reasonable person.
Defamation. Finally, the court dismissed the physician’s claim that the organization and his supervisor defamed him by sending a letter to the state medical board. He could not show that the supervisor abused her qualified privilege to report his behavior to the medical board as he could not show she acted with malice or published the statement excessively. She only reported on the events at the holiday party that she believed to be true, and she may have been legally obligated to do.
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