United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on the defendant's motion for
summary judgment, Filing No. 76. 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
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.
CDHC moves for summary judgment on all of the plaintiff's
claims. 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.
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.
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
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.
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
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.
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. 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.
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.
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.
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
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.
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
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
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.
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
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
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.
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,