United States District Court, D. Vermont
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PAR AND DENYING IN PART DEFENDANTS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
(DOCS. 36, 38)
CHRISTINA REISS, Chief District Judge.
Plaintiff Stephen Mark Green brings this action against Defendants Springfield Medical Care Systems, Inc. and Springfield Hospital, Inc., d/b/a Springfield Hospital (collectively "Springfield Hospital"). In Count I of the Complaint, Plaintiff alleges Springfield Hospital unlawfully terminated his employment in retaliation for reporting concerns about improper patient care practices. Count III alleges a violation of Vermont's Consumer Protection Act ("CPA"), 9 V.S.A. § 2453b, and Count IV asserts a violation of the Sherman Act, 15 U.S.C. § 1, based on Plaintiff's allegations that Springfield Hospital conspired with other hospitals to depress the wages of nurse anesthetists in Vermont. Counts II, V, and VI allege claims of breach of contract, promissory estoppel, and intentional infliction of emotional distress, respectively. Presently before the court are the parties' cross-motions for partial summary judgment on Counts I, III, and IV. (Docs. 36, 38.) Oral argument was held on March 20, 2014.
Plaintiff is represented by Jeremiah R. Newhall, Esq. and Stephen D. Ellis, Esq. Springfield Hospital is represented by Andrew H. Maass, Esq.
I. Factual Background.
A. Undisputed Facts.
Plaintiff is a Certified Registered Nurse Anesthetist ("CRNA") and was employed by Springfield Hospital in its Department of Surgery from on or about October 9, 2006 through June 23, 2012. During the relevant time period, Plaintiff was the only CRNA on Springfield Hospital's anesthesiology staff as all other providers were anesthesiologists. Plaintiff's immediate supervisor was Dr. Sara Schaefer, the Director of Anesthesia. Dr. Schaefer reported directly to Janet Sherer, who oversaw Anesthesiology and Peri-operative Services in her capacity as Chief of Patient Care Services. Plaintiff's employment with Springfield Hospital was governed by a written employment agreement which permitted Springfield Hospital to terminate Plaintiff's employment without cause with ninety days' notice.
1. Springfield Hospital's Stated Reasons for Plaintiff's Termination.
On March 19, 2012, Springfield Hospital's then CEO, Glenn Cordner, told Plaintiff that his employment would be terminated as of June 21, 2012 without cause as part of Springfield Hospital's efforts to reduce the costs in the peri-operative area in response to declining surgical volumes. In a March 22, 2012 email to Plaintiff, Dr. Schaefer "expressed sympathy" for Plaintiff's termination and advised that she had not been consulted in the matter. (Doc. 36-1 ¶ 4.) In this same email, she stated: "I'm sure Glenn [Cordner] told you that it was purely a financial decision. Apparently they hired a consultant who told them that our anesthesia department was overstaffed and recommended the layoff as a cost-saving measure." Id. Dr. Schaefer explained that she "informed them of all the problems that would ensue, including the (obvious) detrimental effects this will have on patient safety, diminished services, longer OR turnover, increased work load and burn-out issues." Id.
In its answers to Plaintiff's interrogatories, Springfield Hospital averred that Mr. Cordner made the decision to terminate Plaintiff on his own without consulting anyone else. Mr. Cordner made this same statement to Plaintiff. Dr. Schaefer also testified that she was not consulted in the decision.
In contrast, Ms. Sherer testified that the decision to terminate Plaintiff's employment was the result of discussions between herself, Dr. Schaefer, and Mr. Cordner. In her deposition, she described these conversations as follows:
There were multiple discussions about multiple options prior to laying Mark off, and Mark's layoff [was] a small part, although I don't want to minimize it, a small part of what we were looking at overall in how we were going to save money in Peri[-]operative Services.
So, there were things that we had done prior to laying Mark off; there were things that we continued to do after Mark was laid off to try to get ourselves into a better financial position. So, in addition to examining - you know, is a physician laid off? Is a CRNA laid off? We also looked at outside companies to provide our service which would have meant everybody in the Anesthesia Department went.
(Doc. 36-17 at 39:22-40:12.) Ms. Sherer further explained, "[a]s we were looking at decreasing the hours of anesthesia providers that we had in-house, we felt that it made sense that those actually be M.D.s since we would have fewer hours of providers in-house." Id. at 31:7-31:11. She stated that these discussions took place "as we were talking about laying Mark off, what was the model that we wanted going forward." Id. at 39:14-39:16. Ms. Sherer testified that the decision to terminate Plaintiff's employment was not recommended by a consultant, although Springfield Hospital did consider replacing all of the anesthesia staff with independent contractors. She did not "think" anyone ever determined whether Springfield Hospital "would save more money by firing [Plaintiff]" instead of one of the "other anesthesia providers, " id. at 98:13-98:18; however, reducing anesthesia hours and "laying [Plaintiff] off did result in cost savings." Id. at 94:25-95:1.
2. Plaintiff's Patient Care Complaints.
During his employment at Springfield Hospital, Plaintiff reported numerous concerns regarding patient care practices. He expressed his concerns to Dr. Schaefer, Ms. Sherer, and Mr. Cordner, among others. Plaintiff's reports included concerns regarding the patient care practices of Dr. A.F., an anesthesiologist, and nurse E.W., Director of Peri-operative Services. In response, Dr. Schaefer and Ms. Sherer summarized Plaintiff's concerns in emails and other memoranda maintained by Springfield Hospital as part of their business records.
On April 23, 2009, Plaintiff reported to Dr. Schaefer that Dr. A.F. was neglecting patients under his care and entering normal vital signs on patient records when monitors showed abnormal levels. That same day, Dr. Schaefer met with Dr. A.F. to discuss Plaintiff's report. Dr. A.F. admitted that he entered inaccurate data, but expressed concern that Plaintiff was retaliating against him for a harassment complaint he had previously filed against Plaintiff. On April 26, 2009, Plaintiff sent Dr. Schaefer a follow-up email stating that Dr. A.F.'s "professional misconduct" should be reported to the Vermont Board of Medical Practice (the "Vermont Medical Board"). (Doc. 36-1 ¶ 25(c)). Dr. Schaefer advised Plaintiff that she would "personally keep a close eye on" Dr. A.F. and requested that Plaintiff report all future concerns to her rather than the Vermont Medical Board. (Doc. 38-2 ¶ 7.) She stated that filing a complaint with the Vermont Medical Board "would prevent [Dr. A.F.] from leaving this practice if he were to so choose, until any investigation was resolved." (Doc. 38-9 at 4.) She explained that, "while I take your concerns seriously, I think a formal complaint to the [Vermont Medical Board] would require substantial proof of ongoing and willful misconduct. I haven't seen evidence of that." Id. Dr. A.F. and Dr. Schaefer attended medical school together and socialized outside the workplace.
On April 27, 2009, Ms. Sherer and Dr. Schaefer discussed Plaintiff's concerns regarding Dr. A.F.'s patient care and Dr. A.F.'s harassment charge against Plaintiff. Dr. Schaefer advised that she spoke with Dr. A.F. regarding "each situation" raised by Plaintiff and "expressed concern that [Plaintiff] might report Dr. [A.F.]." Id. at 9. Ms. Sherer explained that Dr. Schaefer needed to evaluate and periodically monitor Dr. A.F. to ensure that he was "following standards of practice and policies." Id. Thereafter, on May 25, 2009, Ms. Sherer met with Plaintiff concerning Dr. A.F.'s harassment charge and advised him that she had no evidence to support Dr. A.F.'s allegations. During the meeting, Plaintiff reiterated his clinical concerns about Dr. A.F., and Ms. Sherer encouraged him to voice all concerns about Dr. A.F. to either Dr. Schaefer or herself in the future.
In a July 13, 2009 memorandum, Dr. Schaefer detailed an incident in which she relieved Dr. A.F. for a break and discovered that he had entered false data on a patient's chart. Dr. Schaefer confronted Dr. A.F. with the discrepancy, which he admitted, and she instructed him to keep accurate records in the future.
On September 7, 2010, Dr. Schaefer spoke again with Dr. A.F. regarding "recent and ongoing complaints" reported by other Springfield Hospital staff concerning his inattentiveness during procedures and inaccurate record-keeping in the operating room. Id. at 7. Dr. Schaefer also discussed these complaints with Dr. Decil Beehler, Chief Medical Staff Quality Officer, who instructed her to document all complaints about Dr. A.F. in the confidential Safety Risk Management ("SRM") system managed by Mr. DeMarco. Dr. Schaefer wrote a summary of the conversation in which she concluded: "[I will] encourage anyone who notes deficits within AF's practice to record those observations in the SRM system for review by myself and Dr. Beehler. In the meantime, I will personally observe AF's practice and hope to see continued improvement." (Doc. 38-2 ¶ 12.)
On September 15, 2010, Dr. A.F. met privately with Dr. Schaefer and reported that Plaintiff was "harassing" him by reviewing patient "charts in search of inadequacies so that he can levy complaints against [Dr. A.F.]." (Doc. 36-12 at 11.) Dr. Schaefer determined that she would advise Plaintiff "that his enquiries are inappropriate and unnecessary, as the appropriate measures have been taken in regards to [Dr. A.F.], and that those measures are not public." Id.
In December 2011, Plaintiff reported to Ms. Sherer that nurse D.C. was being argumentative in the operating room, causing disruptions, and thereby undermining patient care. On February 15, 2012, Plaintiff reported that nurse D.C. left the operating room during a procedure. That same day, nurse E.W. spoke with nurse D.C., who answered affirmatively when asked whether "the workplace was hostile." Id. at 13. On February 29, 2012, Plaintiff followed up with Dr. Schaefer regarding a patient care concern involving nurse E.W. and inquired whether she had filed a complaint in the SRM. Dr. Schaefer responded that she had not because she preferred the SRM information to come from an eyewitness or someone involved with the case and the incident appeared to involve a "rare and uncharacteristic mistake" by nurse E.W. Id. at 14. She further stated that "[i]f you or anyone else experiences less than professional treatment from [nurse E.W.] (or anyone else, for that matter) please follow the established channels: file a report, talk to me, or speak to Jan Sherer if I'm away." Id.
3. The "Action Plan" and Plaintiff's Performance Evaluations.
On March 8, 2011, Ms. Sherer instructed Dr. Schaefer to contact Plaintiff concerning an "action plan" designed to address ongoing complaints that other employees had filed against him over the course of several years. (Doc. 36-11 at 2-3.) Ms. Sherer explained that the purpose of the action plan was to provide Plaintiff with an "opportunity to change [his] behavior" and "demonstrate sustained improvement." Id. Ms. Sherer instructed Dr. Schaefer to "[k]eep the focus on him" and not "let him go down the path of talking about other people's behavior." Id. at 3.
In a March 10, 2011 email, Dr. Schaefer reported back to Ms. Sherer and explained that, when presented with the action plan, Plaintiff "wanted to know why this was happening now." Id. at 2. Dr. Schaefer also described "one specific thing that concerned [her], " which was Plaintiff's remark that, "if this is how it's going to be, " then he was going to file his complaints about Dr. A.F. with the Vermont Medical Board. Id. Dr. Schaefer noted that Plaintiff "has made many complaints about Dr. [A.F.] that have not proven to be valid, and I have not found Dr. [A.F.'s] record keeping to be lacking at all." Id. She also commented that she thought Plaintiff's "threat" was "certainly inappropriate." Id.
In a memorandum dated May 31, 2011, Dr. Schaefer evaluated Plaintiff's response to the action plan and concluded that she was "satisfied with the effort and progress that [Plaintiff] ha[d] demonstrated, " pointing out that he had "improved communication with colleagues" and "demonstrated that he has perspective on the issues of comportment." (Doc. 36-1 ¶ 28.) In a "Recredentialling Assessment" dated July 6, 2011, Dr. Schaefer noted Plaintiff's "excellent clinical skills and judgment" and reported that he was "responsive to constructive criticism." Id. ¶ 29. In his "Section Chair Evaluation" dated June 24, 2011, ...