Labor & Employment Law Daily Doctor who objected to Duke University’s hostility towards physicians with depression advances ADA claims
Tuesday, July 28, 2020

Doctor who objected to Duke University’s hostility towards physicians with depression advances ADA claims

By Kathleen Kapusta, J.D.

The evidence, viewed in his favor, supported his claim that Duke discriminated against him based on his depression and his efforts to advocate for other physicians with mental health issues.

Citing evidence of a “culture of dismissive, harassing, and intimidating responses” by individuals in leadership roles to physicians who admitted they suffered from depression or who raised concerns about whether the university’s anesthesiology department responded appropriately to mental health issues after a resident’s suicide, a federal court in North Carolina denied summary judgment in large part against the ADA claims of a former Duke University anesthesiologist who both suffered from depression and raised concerns. And while the court denied cross-motions for summary judgment on the doctor’s breach of contract claim based on promises made in the officer letter, it tossed the doctor’s claim based on provisions in the faculty handbook. Duke’s after-acquired evidence defense to the doctor’s ADA claim also failed as did the doctor’s tort claims against a related entity (Shaughnessy v. Duke University, July 22, 2020, Eagles, C.).

Suicide. In 2011, the doctor not only started working as an anesthesiologist at Duke’s university hospital, he became a member of the Private Diagnostic Clinic (PDC), a company made up of Duke doctors and the vehicle through those doctors provide clinical services. Five years later, a resident physician in the anesthesiologist department committed suicide. In response, several anesthesiologists began advocating for department leader to become more active in supporting residents’ mental health. One doctor, Dr. C.J., after discussing her own struggles with depression at subsequent faculty meetings, claimed she encountered intimidation tactics by the department chair and even worse intimidation by the vice-chair as a result. She went on medical leave not long after.

Another resident, who spoke out in support of Dr. C.J. and advocated for suicide prevention efforts, claimed she received negative feedback and indirect threats of retaliation by the chair. Around this same time, the doctor complained to his faculty mentor and the vice-chair for clinical operations about how Dr. C.J. was treated and about hostility to those with depression. He also admitted that he, too, struggled with depression.

Watch your back. At a division meeting four months later, the chair dismissed the resident’s suicide as the action of someone with a drug problem. The doctor objected to this insensitive characterization of the resident, noted his own struggles with depression, and suggested that the vice chair should be disciplined for his threatening behavior toward Dr. C.J. Around that same time, the doctor sought a transfer from the anesthesiology department to the community division, which serviced contracts at multiple clinics outside the hospital. He was warned, however, by the division chief that he might be “blacklisted” from some local hospitals as a result of his complains. He was also warned to “watch his back.”

Nonrenewal of contract. A few weeks later, he learned his “gain share” payment for the second half of 2016 would be substantially lower and he would not be paid the gain share at all for the first half of 2017 if he went to the community division. In January 2017, the department chair notified him that his annual contract with Duke would not be renewed. The following month, he was told there was no available position with the community division and even if there were, he would not be hired for it.

ADA claims. Suing under the ADA, the doctor claimed that Duke violated the Act by terminating him, blocking future employment prospects, reducing his “gain share” payment, creating a hostile work environment, and retaliating against him for engaging in protected activities. Finding that the evidence, viewed in his favor, supported his claim that Duke discriminated against him based on his depression and his efforts to advocate for other physicians with depression and potential mental health issues, the court noted that one physician was harassed to a degree that caused her to take medical leave while another experienced negative feedback and gossip originating from the chairs or vice-chairs. Further, after the doctor admitted he also suffered from depression, he was allegedly harassed, his gain share was reduced, he was terminated, and his superiors blocked him from taking another job when he would not back down from his complaints.

Although Duke claimed the doctor’s performance and treatment of staff and residents led up to the nonrenewal of his contract, its evidence was disputed by the doctor, the court observed, denying summary judgment against these claims. His ADA claims based on his heart block or rosacea were dismissed, however.

Breach of contract. As to the doctor’s claim that by terminating him without cause, Duke breached their contract based on promises in the offer letter, the court found fact issues as to whether Duke breached the provision stating his contract would be renewed annually if his performance was satisfactory. During the termination meeting, the department chair purportedly stated that the nonrenewal was “a no cause termination of your contract,” which, said the court, indicated his performance was satisfactory. In addition, there was evidence the doctor was terminated because of his complaints about the chair’s and vice chair’s discriminatory actions. But because there was also evidence that Duke decided not to renew his contract based on performance issues, the court denied the parties’ cross-motions for summary judgment aa to this claim.

The doctor’s breach of contract claim based on promises made in the faculty handbook failed, however. Not only were the handbook provisions not expressly incorporated into his employment contract, his renewal letters did not reference the handbook provisions setting forth how Duke would decide not to renew a faculty member’s contract or characterize the academic freedom provisions as obligations of promise. Thus, the court granted summary judgment against this claim.

After-acquired evidence. Turning to Duke’s assertion that after-acquired evidence barred the doctor’s “recovery of damages and other legal or equitable relief,” the court noted that it appeared to be directed only towards the ADA failure-to-renew claim. Duke relied on testimony from the department chair that, three years after the doctor left, “other faculty members” told him the doctor “was out drinking late at night on many occasions and was deemed drunk by his colleagues but yet still came to work the next day.” Although he identified one doctor as the source of the information, it was nonspecific as to date, number of occasions, or surrounding circumstances. And while Duke argued that the statements were admissible to explain the chair’s reaction to the information, it cited no case for the proposition that the after-acquired evidence defense can apply based on hearsay or on uncorroborated, uninvestigated gossip reported years after the fact. Thus, summary judgment was granted against this defense.

Claim against PDC. Finally, the doctor claimed that PDC interfered with his future employment by maliciously inducing a third party, Regional Anesthesia, not to enter a contract with him. While he claimed that the chair, acting on behalf of Duke and PDC, prevented his move to Regional Anesthesia, PDC contended that it was not a third party. Although PDC and Regional Anesthesia were separate legal entities, a contract between the two provided that Regional Anesthesia would not itself employ any physicians and PDC was responsible for performing all personnel and staffing operations for Regional Anesthesia. Noting that it was undisputed that had he been hired, the doctor would have worked for PDC, not Regional Anesthesia, the court found PDC could not interfere in a potential employment relationship with itself. Accordingly, this claim failed.

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