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Tolston v. Charles Drew Health Center, Inc.

United States District Court, D. Nebraska

December 20, 2017




         This matter is before the court on the defendant's motion for summary judgment, Filing No. 76.[1] This is an action for discrimination in employment under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1101 et seq., (“NFEPA”).

         I. BACKGROUND

         The plaintiff, Monique Tolston, M.D., (“Dr. Tolston”) was previously employed by defendant Charles Drew Health Center, Inc. (“CDHC”) as a family practice physician. She alleges that CDHC terminated her employment because of her gender and in retaliation for reporting and opposing a violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, and subjected her to a retaliatory hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. § 48-1104. She also asserts state law claims for breach of contract and for a violation of the Nebraska Wage Payment and Collection Act (“NWPCA”), Neb. Rev. Stat. § 48-1228. She alleges the defendant's conduct violates the common law and public policy of the State of Nebraska and she seeks compensatory and punitive damages.

         Defendant CDHC moves for summary judgment on all of the plaintiff's claims.[2] It first argues that the plaintiff cannot pursue a claim against CDHC under the EMTALA because CDHC is not a "participating hospital" subject to the requirements of that statute. It next argues that the plaintiff cannot establish a claim for gender discrimination under either Title VII or NFEPA, asserting that Dr. Tolston has not presented a prima facie case in that she cannot show she was meeting CDHC's legitimate expectations during her employment, nor that the circumstances of her termination give rise to any inference of discrimination. Also, CDHC contends the plaintiff cannot rebut its asserted legitimate non-discriminatory reasons for the termination-Dr. Tolston's tardiness, frequent absences, unprofessional conduct, and patient complaints. It also contends that any evidence that other physicians were not disciplined for similar conduct involves employees who were not similarly situated to the plaintiff.

         CDHC argues that undisputed evidence shows Dr. Tolston did not engage in any activity protected under federal or state law and cannot show a causal connection between any such activity and her termination. CDHC also argues that it is entitled to judgment on the plaintiff's hostile work environment claim because the plaintiff has presented no evidence that she was subjected to unwelcome or offensive conduct that was severe and pervasive. CDHC also contends Dr. Tolston has been fully compensated for her services and cannot establish any NWPCA violation. Further, it argues the plaintiff cannot establish a cause of action for wrongful termination in violation of Nebraska public policy because she has not identified any specific statute or public policy that was allegedly violated. Although it acknowledges the plaintiff has shown a technical, non-material breach of her employment agreement, it argues that her breach-of-contract claim fails because she did not suffer any damages.

         II. FACTS

         The facts are gleaned in part from the parties' respective statements of uncontroverted facts and from evidence submitted in connection with the motion. See Filing No. 77, CDHC Brief at 3-9; Filing No. 107, Plaintiff's Opposition Brief at 1-47; Filing No. 118, CDHC Reply Brief at 3-21; Filing Nos. 78, 106, and 119, Indices of Evidence. Defendant CDHC is a federally-qualified community health center that is funded mostly by the federal government and is designed to serve the underserved population. The plaintiff, Monique Tolston, M.D., was hired by CDHC in August 2008 as a Family Practice Physician providing general medical and obstetrics (“OB”) services. She is a 2005 graduate of the University of Nebraska Medical School, has completed a residency, and is board certified in Family Medicine. As a family medicine doctor, her scope of practice includes “everything from cradle to the grave.” Dr. Tolston was granted hospital privileges by Catholic Health Initiatives Immanuel Hospital (“Immanuel”) to engage in family practice, including, but not limited to, OB privileges, delivering babies, and caring for infants and mothers post-partum.

         The Health Resources and Services Administration (“HRSA”) is a government entity that governs and funds community health centers like CDHC. As a government funded health center, CDHC is required to follow rules and regulations promulgated by the Government. CDHC provides services in a clinical setting and is not a hospital. The HRSA requires CDHC to provide a back-up physician for Dr. Tolston who is able to perform the same services as she does. If a clinic does not have a back-up provider on staff, HRSA requires clinics to make arrangements with hospitals to provide the same services as provided by the provider.

         Only obstetricians/gynecologists (“OB/GYNs”) and Family Medicine doctors with privileges can deliver babies at hospitals. Neither a neurosurgeon, internal medicine physician, nor pediatrician can serve as an on-call for OB patients unless they had hospital privileges and were credentialed to treat OB patients. Internal medicine physicians and pediatricians are not credentialed to provide OB care.

         Dr. Tolston was the only OB provider at CDHC for several years. From 2008 through 2010 or 2011, Dr. Tolston took 75 % of all OB on-call and Dr. Esch provided OB on-call one week per month. In 2010 or 2011, Dr. Tolston took all OB on-call for CDHC. In the Fall of 2014, CDHC hired Susan Egbe, M.D. as a Family Practice Physician credentialed to treat obstetrics patients. Dr. Egbe has the same board certifications as the plaintiff, but she did not have OB hospital privileges. Dr. Ochuba testified that Dr. Tolston was upset that Dr. Egbe would be seeing Dr. Tolston's patients.

         From August 2008 until June 2015, plaintiff was supervised by Dr. Gregory Ochuba, CDHC's Medical Director. In June, 2015, Dr. Anthony Montegut became CDHC's Chief Medical Officer and Dr. Tolston's supervisor.[3] Dr. Montegut had been employed with CDHC since February 2014 as a part-time physician. He was not involved in any of the staffing issues that took place in late 2014. Dr. Richard L. Brown had served as CDHC's Chief Executive Officer (“CEO”) until 2014. He testified he never allowed doctors to be on-call for OB patients unless they were properly licensed and credentialed in OB. In 2014, Kenny D. McMorris replaced Dr. Brown as CEO.

         The record shows that on-call OB staffing changes were made in November 2014 as a result of a change in Dr. Tolston's on-call availability. Dr. Ochuba testified that Dr. Tolston decided to stop taking OB calls. Dr. Tolston stated in an email that she was “forced” to give up OB call and to limit her call to 7 days per month. Dr. Ochuba testified that hospital physicians were to have provided OB coverage for the remaining three weeks of each month. He acknowledged, however, that he did not speak to anyone at Immanuel to make sure there was OB coverage during those weeks or to arrange for delivery of patients' charts.

         In late November, 2014, Dr. Tolston voiced concerns over CDHC's plans for Dr. Egbe to provide outpatient OB services as a back-up to Dr. Tolston's in-clinic services and its arrangements with hospital staff doctors to treat patients who presented for delivery. Dr. Tolston testified that she told Dr. Ochuba that the policy was unsafe, unethical, provided poor continuity of care, was hazardous and would put fellow physicians at risk. She testified she also reported her concerns about alleged EMTALA violations to CHDC management, including Dr. Ochuba, Kenneth McMorris, Dr. Egbe, director of nursing Melanie McCroy, and nursing staff, both verbally and in an email dated November 20, 2015. In the email, Dr. Tolston detailed her concerns regarding the changes to OB care, including: (a) failure to provide continuity of care to OB patients; (b) fragmented care that jeopardizes the health and safety of the mother and the baby; (c) lack of medical records of patients at delivery as a critical mistake; (d) the fact that critical changes to the plan were not discussed prior to implementation.

         Although it was not mentioned in the email, Dr. Tolston testified she told Dr. Ochuba that it was illegal to use EMTALA to dump CDHC's OB patients and told Dr. Egbe verbally several times about her concerns with violation of EMTALA. Dr. Ochuba disputes that Dr. Tolston discussed possible EMTALA violations at a meeting in December 2014. Kenneth McMorris testified he has no recollection of Dr. Tolston raising any EMTALA concerns. Dr. Ochuba implemented the policy changes despite the plaintiff's concerns. Dr. Tolston also testified she told physicians at Immanuel, including Dr. Adrienne Perfilio, about the changes in policy that Dr. Tolston believed violated EMTALA and would jeopardize patient care.

         On December 7, 2014, an incident involving the new policy occurred at Immanuel. There is conflicting testimony about the events that occurred that day, but the incident allegedly involved CDHC's failure to have a doctor on call. At that time Dr. Michael Reed was Chair of the OB Department. Dr. Adrienne Perfilio was Dr. Reed's partner and was employed by Immanuel. Dr. Reed testified Dr. Perfilio told him of an incident in December of 2014 involving CDHC's failure to provide coverage of an OB patient. He referred to it as a patient dumping situation.

         Dr. Tolston testified she believed the incident was a violation of EMTALA because the EMTALA is only supposed to be invoked under certain circumstances. She stated Dr. Perfilio told her the policy was a violation. Dr. Ochuba later called Dr. Tolston and asked her to deliver the baby even though Dr. Tolston contends he had forbidden her to see patients if not on call.

         The record shows Dr. Tolston was given a written warning for rudeness and inappropriate behavior on December 10, 2014. The warning ostensibly involved incidents that had occurred on November 20, 2014 and November 25, 2014. An email chain on those dates shows that Dr. Ochuba and Dr. Tolston corresponded about the on-call policy changes. The email chain reflects that Dr. Tolston told Dr. Ochuba she would be taking calls one week per month pursuant to her contract. Dr. Ochuba took away Dr. Tolston's additional week of vacation to reflect the change. Dr. Tolston responded outlining her concerns and later copied others in on the email. Dr. Ochuba contends she was reprimanded in part for copying in her CEO and her office manager on her complaint email.

Dr. Ochuba stated on the employee warning notice:
On November 25, 2014 you sent out misstatement emails on the CDHC OB program to the Medical Director, the CEO, and the Clinic Coordinator including another CDHC provider. That discussion was held between you and the Medical Director and should not have included others. The information that was emailed was inaccurate.

Filing No. 78-2. The warning further stated: “You are to comply with your immediate manager regarding legitimate work related directives and accept proper work-related decisions from your immediate manager.” Id. Dr. Tolston indicated on the form that she did not agree with the recitation of events that precipitated the warning. Id.

         Dr. Tolston testified she was subjected to continual retaliation from November 2014 through the date of her termination. She testified she was subjected to angry, dismissive treatment by Dr. Ochuba, Dr. Montegut and Mr. McMorris. She stated she was ignored, received lower ratings in several areas on her evaluation, and was issued disciplinary write ups. She also testified that after late 2014, she felt she was being watched and targeted. There is evidence that McMorris asked the Director of Nursing to document concerns with respect to Dr. Tolston. Dr. Tolston also testified she was excluded from clinic meetings after she expressed concerns about the policy.

         The record shows that Dr. Tolston was disciplined several times after the November 2014 written warning. In June 2015, a patient filed a complaint against her, claiming that Dr. Tolston failed to provide proper care. The patient requested a refund and asked to be transferred to a different physician. On August 7, 2015, another patient made a complaint against Dr. Tolston. That patient stated that Dr. Tolston had refused to see her when she arrived at CDHC on August 4, 2015, and required the patient to schedule a different appointment. The patient reported that she overheard Dr. Tolston state that she did not want to see the patient. The patient requested her records so that she could seek treatment from physicians not affiliated with Defendant. Melanie McCroy, the CDHC Director of Nursing, and Dr. Montegut met with the patient and discussed her complaint on August 7, 2015. Dr. Montegut took over the patient's treatment.

         Dr. Tolston was terminated on August 7, 2015. Kenny McMorris testified that the decision to terminate Dr. Tolston was based on Dr. Tolston's behavior on August 7, 2015, when she refused to see a patient. He conceded, however, that refusal to see a patient would not be sufficient grounds to terminate a physician. CDHC concedes that Dr. Montegut told the plaintiff that it was McMorris's decision to fire her, although that fact was not true. McMorris testified the decision to terminate Dr. Tolston was made by Dr. Montegut. Although Dr. Ochuba, who continued to be employed by CDHC as an internal medicine physician after Dr. Montegut was appointed Medical Director, testified that he did not share information regarding physicians he had disciplined in the past with Dr. Montegut, there is evidence that Dr. Montegut has access to that information.

         McMorris testified that the values of CDHC do not include rude behavior, disrespectful behavior, and treating a patient with less than dignity and respect. He also stated the termination decision was based on a pattern of activity by Dr. Tolston and her behavior overall, including her performance in terms of not showing up on time, not following protocol in relation to calling and staying in contact with the appropriate supervisor when necessary, failing to attend meetings, and “erratic behavior.” McMorris also testified, ...

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