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Nayyar v. Mt. Carmel Health Systems

United States District Court, Sixth Circuit

June 3, 2013

SUNIL NAYYAR, M.D., Plaintiff,
MT. CARMEL HEALTH SYSTEMS, et al., Defendants.


ALGENON L. MARBLEY, District Judge.


This matter is before the Court on Defendants' Motion for Summary Judgment ("Motion"). (Doc. 90).[1] For the reasons set forth herein, Defendants' Motion is GRANTED.


A. Factual Background

Plaintiff, Sunil Nayyar, M.D. ("Nayyar"), is a resident of Franklin County, Ohio and Defendant, Mount Carmel Health Systems ("MCHS"), operates four hospitals in Franklin County, Ohio. Plaintiff also names two of his former supervisors at MCHS, Dr. John Weiss and Dr. Li Tang, as Defendants.

Plaintiff was hired into the Family Medicine Residency Program of Defendant MCHS in July 2006. ( Plaintiff's Deposition, Doc. 61 at 16, 18, 26). In July 2007, Plaintiff transferred into Defendant MCHS's Internal Medicine Residency Program ("Residency Program"). (Doc. 61 at 24, 49-51). The Residency Program is accredited by the Association of Graduate Medical Education ("ACGME"). MCHS issues a Residency Physician Handbook ("Handbook") which incorporates ACGME standards for both the Residency Program and the Residents. ( Handbook, Doc. 95-3). Residents work under one-year contracts, which incorporate by reference the provisions of the Handbook. ( Contract, Doc. 95-27). Defendant Weiss was Plaintiff's immediate supervisor and Director of the Residency Program. Defendant Li was the Director of Medical Education.

In January 2009, Plaintiff signed, and gathered signatures of other Residents, a petition stating concerns with conditions ("Petition") in the Intensive Care Unit ("ICU"). ( Petition, Doc. 95-1). Defendant Weiss had also supported the Petition. ( Plaintiff's Deposition, Doc. 61 at 149). In late June or early July 2009, Plaintiff received a copy of the July ICU Call Schedule ("ICU Schedule") and had concerns about the staffing levels on certain shifts. ( Id. at 144-49). According to Plaintiff, he approached Defendant Weiss and the following conversation occurred:

I said that "Without an in-house critical care attending [physician], that safety is an active issue, and I mentioned that to him, and I said people will die, " and he said, "More to prove my point, we don't belong in the ICU."[2]

( Id. at 145). Defendant Weiss encouraged Plaintiff to take his concerns to Defendant Li.[3] ( Id. ). Plaintiff repeated his concerns to Defendant Li and reported his conversation with Defendant Weiss. ( Id. at 145-46). Plaintiff also gave Defendant Li a copy of his ICU Schedule with some notes he had written on it. ( Li Deposition, Doc. 95-6 at 171-174). Defendant Li looked into the matter and decided not to change the ICU Schedule. (Doc. 61 at 145-46). Plaintiff also approached Roy St. John, M.D., an Assistant Medical Director for MCHS, who decided not to change the ICU Schedule. ( Id. at 147-48).

Subsequent to those conversations, on July 9, 2013, Nurse Lisa Cottrell reported, to her supervisors a MCHS, an incident involving Plaintiff which had occurred on July 7, 2013. ( Id. at Exh. 7). Plaintiff made three unsuccessful attempts to insert an arterial line ("A-line") into a comatose patient. ( Id. ). Plaintiff then asked two nurses in the room, Cottrell and Amanda Bowers, if they would like to try. ( Id. ). Cottrell informed Plaintiff that it was beyond the scope of a nurse's practice to insert an A-line. ( Id. ). Bowers agreed to insert the A-line, but told Plaintiff "this stays between us." ( Id. ). Bowers successfully inserted the A-line on her second attempt and Plaintiff then secured the line. ( Id. ). After the nursing supervisors received Cottrell's report, MCHS initiated an investigation which eventually led to the termination of Bowers. ( Id. at 232-33).

Defendant Weiss received notice of Plaintiff's involvement in the incident and instructed him not to appear for his next shift. ( Id. at 92). Defendants state that Plaintiff was instructed not to discuss the investigation with other staff until it was finished, but Plaintiff states he received no such instruction. ( Id. at 116). It is undisputed that during the investigation, Plaintiff contacted and discussed the A-line incident with multiple residents and Bowers. ( Id. at 95-99). Despite this, Plaintiff later told Defendant Weiss that he had not been in contact with Bowers. ( Id. at 116).

On July 22, 2009, following the investigation, Defendant Weiss wrote a letter to Plaintiff informing him that he was terminated and listing the reasons. ( Termination Letter, Doc. 61-2). The letter listed five contacts had made with MCHS personnel during the A-line investigation. ( Id. ). The letter went on to explain that "You [Plaintiff] were specifically instructed by the Internal Medicine Residency Program Director to not discuss the events surrounding this arterial line placement with any other MCHS employee. Your contact with multiple MCHS employees made the investigation regarding the events surrounding the arterial line placement difficult." ( Id. ). Defendants determined that Plaintiff's actions failed to demonstrate the ACGME "core competencies" of Interpersonal & Communication Skills, Professionalism, and Systems-based Practice. ( Id. ). Defendants informed Plaintiff he was being terminated for failing to meet expectations in those three areas and informed him of his right to request review of the decision. ( Id. ).

Plaintiff exercised his right to have the Program Education Committee (the "Committee") review his termination. (Doc. 61 at 131). At an August 6, 2009 hearing, Plaintiff spoke in his own defense for 40 minutes. ( Committee Decision, Doc. 47-11). The Committee reviewed the evidence and upheld Plaintiff's termination, finding that "the past and recent evidence shows a pattern of behavior of [Nayyar] that are inconsistent with both the ACGME core competency of Professionalism and the policies and standards of the Mount Carmel Heath System." ( Id. ). Plaintiff then challenged the fairness of the termination process. Defendant Li formed "a special Administrative Review Committee to review the entire process." ( Li Letter, Doc. 47-12). The Administrative Review Committee "reached the conclusion unanimously that the appeal process in place is consistent with the [ACGME] policies and that Due Process has been honored." ( Id. ).

B. Procedural Background

Plaintiff originally filed suit challenging his termination in this Court in 2010 (2:10-cv-135). In 2012 Plaintiff filed a similar suit in the Franklin County Court of Common Pleas, which Defendants successfully removed to this Court (2:12-cv-189). This Court consolidated the two cases. ( See Doc. 21 in 2:12-cv-189). In the consolidated suit, there are ten causes of action pending before the Court. Defendants have filed a Motion for Summary Judgment on all counts. Plaintiff opposes the Motion. Briefing is completed and oral argument was held on May 16, 2013. The matter is now ripe for adjudication.


Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." A fact is deemed material only if it "might affect the outcome of the lawsuit under the governing substantive law." Wiley v. United States, 20 F.3d 222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986)).

The nonmoving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). The suggestion of a mere possibility of a factual dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). Further, "summary judgment will not lie if the dispute is about a material fact that is genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. When a plaintiff, however, invokes summary judgment "and a showing is made by the [plaintiff], the burden rests on the [defendant] to show that he has a ground of defense fairly arguable and of a substantial character." Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir.1943).

The necessary inquiry for this Court in determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Self-serving affidavits, alone, are not enough to create an issue of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice, Ohio, 37 F.Supp.2d 1021, 1026 (S.D. Ohio 1999). See Anderson, 477 U.S. at 251; Copeland, 57 F.3d 476 at 479.

With regard to affidavits, Rule 56 (e) requires that affidavits submitted in support of, or in opposition to, motions for summary judgment include facts based on personal knowledge, and that personal knowledge "must be evident from the affidavit." Reddy v. Good Samaritan Hosp. & Health Ctr., 137 F.Supp.2d 948, 956 (S.D. Ohio 2000). Affidavits at the summary judgment stage also may not rely upon inadmissible hearsay because inadmissible hearsay "cannot create a genuine issue of material fact." North American Specialty Ins. Co. v. Myers, 111 F.3d 1273, 83 (6th Cir.1997).


Defendant has moved for summary judgment on all ten counts remaining before this Court. For the reasons stated below, Defendant's Motion is granted in its entirety.

A. Race and National Origin Discrimination under 18 U.S.C. Section 1981 and O.R.C. 4112

Plaintiff brings two claims, one under 18 U.S.C. § 1981 and one under O.R.C. § 4112.02, for race and national origin discrimination.[4] This Court analyzes the federal and state claims "together, however, because Ohio's requirements are the same as under federal law.'" Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008), citing Carter v. Univ. of Toledo, 348 F.3d 269, 272 (6th Cir. 2003). Since Plaintiff lacks direct evidence of Defendants' alleged discrimination, he attempts to prove his "claims of disparate treatment by use of circumstantial evidence of discrimination according to the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Id. Under McDonnell Douglas a plaintiff first bears the burden of establishing a prima facie case of discrimination by showing that: "(1) she is a member of a protected group; (2) she was subject to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside of the protected class." Carter, 348 F.3d at 273. Where applicable, a plaintiff may satisfy the fourth prong "by adducing evidence that she was... treated differently than similarly situated non-protected employees.'" Russell, 537 F.3d at 604, quoting Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). In Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992), the Sixth Circuit held that in order to satisfy her burden, a plaintiff must show the non-protected employee is "similarly situated in all respects." In Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998), however, the Sixth Circuit refined the Mitchell holding to clarify that a "plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in all of the relevant respects." (emphasis in original)

Here, there is no dispute that Plaintiff has satisfied the first three prongs of the McDonnell Douglas framework. The sole issue of contention is whether Plaintiff has identified a similarly situated, non-protected employee who was treated more favorably. Plaintiff identifies one employee whom he alleges was similarly situated and received more favorable treatment, Jonathan Border, M.D., ("Borders"). Borders was also a third-resident in the Plaintiff's residency program. According to Plaintiff, Borders was chronically tardy or absent for both meetings and shifts. Weiss Deposition II, Doc. 95-13 at 10-29. Borders also lied to supervisors about his absences. Id. Borders was ultimately terminated shortly after Plaintiff. Id.

Plaintiff argues that since both he and Borders were third-year residents in the same residency program who lied to supervisors, the lone significant difference between the two was their respective races and national origins. Borders is Caucasian and of U.S. origin, whereas Plaintiff is South Asian and of Indian origin. Both physicians were ultimately subject to the same adverse employment decision, ...

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