Alaa E. Elkharwily, M.D., Plaintiff - Appellant
Mayo Holding Company; Mayo Clinic Health System-Albert Lea; Mayo Foundation; Mark Ciota, M.D.; John Grzybowski, M.D.; Dieter Heinz, M.D.; Robert E. Nesse, M.D.; Steve Underdahl; Stephen Waldhoff, Defendants - Appellees
November 19, 2015.
[Copyrighted Material Omitted]
from United States District Court for the District of
Minnesota - Minneapolis.
Elkharwily, M.D., Plaintiff - Appellant, Pro se, Rochester,
Alaa E. Elkharwily, M.D., Plaintiff - Appellant: Richard
Thompson Wylie, WYLIE LAW FIRM, Minneapolis, MN.
Mayo Holding Company, Mayo Clinic Health System-Albert Lea,
Mayo Foundation, Mark Ciota, M.D., John Grzybowski, M.D.,
Dieter Heinz, M.D., Robert E. Nesse, M.D., Steve Underdahl,
Stephen Waldhoff, Defendants - Appellees: Charles Godwin
Frohman, David T. Schultz, MASLON LLP, Minneapolis, MN;
Joanne L. Martin, MAYO CLINIC, Legal Department, Rochester,
SMITH, BYE, and BENTON, Circuit Judges.
Elkharwily, M.D., sued Mayo Holding Company, Mayo Clinic
Health System-Albert Lea (the Clinic), Mayo Foundation, and
Mayo staff (collectively Mayo) for wrongful
employment termination and retaliation. The district
court granted Mayo's motion to dismiss
in part and its later motion for summary judgment, while
denying Dr. Elkharwily's motion for reconsideration and
motion for additional time for discovery. Dr. Elkharwily
appeals. We affirm.
Elkharwily, a medical doctor certified in internal medicine,
worked as a hospitalist at the Clinic from September 7, 2010,
to December 10, 2010. As a hospitalist, his job duties
included providing care for admitted patients and refining
the " hand-off" process for patients released to
the care of their primary providers after hospitalization
ended. Dr. Elkharwily reported directly to Dr. Dieter Heinz,
Chair of the Division of Medicine, and indirectly to an
administrative team including Dr. Mark Ciota, Dr. John
Grzybowski, Steve Underdahl (Hospital Administrator), and
Lori Routh (Nurse Executive).
Clinic policy, new employees-including Dr. Elkharwily-are on
probationary status for 90-days and evaluated in writing
before the 90th day. At the end of this period, the
evaluators recommend either continued employment, extension
of probation, or termination. Dr. Elkharwily also
participated in Minnesota's Health Professionals Service
Program (HPSP) while employed at the Albert Lea Clinic
because he suffers from bipolar disorder. This program
required a work-site monitor to supervise Dr. Elkharwily and
submit quarterly reports assessing his job performance. His
work-site monitor at the Clinic was Dr. Ciota.
Hospital Administrator evaluated Dr. Elkharwily's job
performance for his 90-day review. The Administrator
solicited information from hospital administration, nursing
staff, physician leadership, and physician colleagues about
Dr. Elkharwily's job performance, detailing the
staff's concerns in a November evaluation: difficulty
organizing and prioritizing his work; unreachable to staff;
adversarial, resistant to admitting patients, and
unnecessarily generated work for the emergency departments;
untrusted by the nursing staff for his instructions or
interpretation of events; incorrectly informing nursing staff
that his contract limits the number of patients he is
required to care for to twelve; and difficulty timely
completing documentation. Despite these concerns, the
Hospital Administrator and Dr. Elkharwily's direct
supervisor extended Dr. Elkharwily's employment
probationary period by 90 days. As part of the evaluation,
the Hospital Administrator and direct supervisor planned to
discuss the evaluation with Dr. Elkharwily shortly after its
Dr. Ciota prepared Dr. Elkharwily's confidential HPSP
report. Dr. Ciota interviewed five nursing supervisors about
his job performance. Although
the Hospital Administrator did not interview these
supervisors, their answers reflected many of the same
concerns as the evaluation. Dr. Elkharwily did not answer
calls and was difficult to locate, had very poor
organizational skills, did not see patients in a timely
manner, frequently challenged patients' end-of-life
choices, became easily frustrated, did not always provide an
accurate interpretation of events, and became difficult to
work with when feeling overworked. Dr. Ciota sent the HPSP
report Minnesota on December 6, 2010.
the Hospital Administrator and direct supervisor could
discuss the evaluation results with Dr. Elkharwily, the
following events took place. On December 7, Dr. Elkharwily
gave an order to a nurse to give a patient intravenous (IV)
Tylenol. The nurse questioned Dr. Elkharwily because she had
never heard of IV Tylenol. Dr. Elkharwily insisted he had
given IV Tylenol to a patient two days earlier. The nurse
contacted the hospital pharmacist, who verified the formulary
did not carry IV Tylenol.
next day, a nursing supervisor reported the incident to the
Nurse Executive, Lori Routh. She and the Hospital
Administrator discussed the events with Dr. Elkharwily. Dr.
Elkharwily reiterated that he believed IV Tylenol was
available at the Albert Lea Clinic formulary because he had
administered it to a patient a few days earlier. The
Administrator explained that IV Tylenol was not available in
the formulary. Dr. Elkharwily immediately changed his story
stating, " It would have been the right medication to
use had it been available."
light of the inconsistent responses, the Hospital
Administrator and Nurse Executive were concerned about
patient safety and Dr. Elkharwily's overall
trustworthiness. The Clinic placed Dr. Elkharwily on paid
administrative leave pending further investigation. The
Hospital Administrator and Nurse Executive interviewed
nursing staff to assess Dr. Elkharwily's patient safety.
The interviews matched the concerns in his 90-day evaluation
and HPSP report, including that he was disorganized,
dishonest, difficult to reach while on duty, and difficult
December 10, the Hospital Administrator outlined his concerns
about Dr. Elkharwily's job performance to Dr. Grzybowski.
The Administrator concluded, " Based on the volume and
magnitude of concerns about Dr. Elkhawily and his performance
as a hospitalist, it appears that a majority of team members
have lost confidence in his ability and are very pessimistic
about his ability to improve."
that day, after consulting with in-house counsel, the
Clinic's administrative team recommended Dr. Ciota end
Dr. Elkharwily's employment or permit him to resign in
lieu of termination. Dr. Ciota agreed. Members of the
administrative team and the Director of Human Resources and
Staff Development, informed Dr. Elkharwily of the decision to
end his employment. ...