Davis v. Univ. of Louisville Physicians, Inc.

FRANK DAVIS PLAINTIFF v. UNIVERSITY OF LOUISVILLE PHYSICIANS, INC. DEFENDANT

Civil Action No. 3:19-CV-849

United States District Court, W.D. Kentucky, Louisville Division

November 19, 2021

MEMORANDUM OPINION

Charles R. Simpson III, Senior Judge United States District Court

This matter is before the Court on the motion of Defendant University of Louisville Physicians Group, Inc. (“ULP”) for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(a). Def. Mot. Summ. J., DN 43. Plaintiff Frank Davis (“Davis”) filed a response, and ULP replied. Pl Resp., DN 52; Def. Reply, DN 58. These matters are now ripe for adjudication. For the reasons stated below, the motion for summary judgment will be granted. ULP has also filed a motion to exclude the testimony of Dr. Paul Brown. DN 44. The Court has considered Brown's testimony in the context of this decision. The motion to exclude will, therefore, be denied.^[1]

I. Procedural Posture of Case

On November 19, 2019 Davis filed a complaint against ULP and University of Louisville (“UofL”) in the Western District of Kentucky alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) and the Kentucky Civil Rights Act (“KCRA”). Pl. Compl., DN 1 PageID# 4-8. UofL was dismissed as a defendant on August 20, 2021. ULP now moves for summary judgment pursuant to Fed.R.Civ.P. 56(a). DN 43.

II. Factual Background

In October of 2017, at the age of 59, Davis accepted an offer for dual employment with ULP and UofL as an at-will Certified Surgical First Assistant (“CFA”). DN 52-1, PageID# 1028. In addition to certain “minimum education and experience requirements, ” the job description for the CFA position listed “job responsibilities, ” including “harvest[ing] native vessel(s) used for bypass or other conduit” and “dissecting vessel branches, ” as well as “other surgical assistance as required by the surgeon.” DN 43-4, PageID# 553. Additionally, the job description enumerated certain “knowledge, skills, and abilities” that the CFA was expected to display:

● Practice of medicine within the scope of license.

● Practice of medicine within the scope of training.

● Practice of medicine within the scope of credentialing

● Practice of medicine in accordance with the current standards of care

● Practice of medicine in accordance with the quality criteria adopted by the clinic

● Promotes a safety- conscious work force and maintains good housekeeping practices

● Demonstrates the ability to assess, plan, implement and evaluate individual patient care appropriate to the age of patients served by demonstrative knowledge of the principles of growth and development over the life span.

● Communicates appropriately with the person served regardless of their age.

● Initiative, communicator, problem solver

● Proactive - anticipates and plans for problems before they arise

● Service Excellence - responsive, informs constituents of process, pleasant to work with, educates and provides timely, accurate information

● Organized - manages time effectively, keeps tasks appropriately prioritized

● Flexible - ability to change directions as needed for the good of the department or organization ● Critical Thinking - ability to think through issues and identify appropriate options

● Work Ethic - motivated, diligent, industrious and persistent in the workplace, stays on tasks to completion, works at a fast pace to ensure optimal efficiency

● Maintains a professional appearance at all times.

● Interpersonal - can build effective, strong working relationships with employees, colleagues, management, consultants, and media through trust, communication, and credibility

● Team - ability to work with others, serve others, help others, lead others, mentor others, take directions from others in the interest of moving process and programs forward to the desired outcome.

● Emotional Intelligence - ability to not take issues personal, see the big picture in emotionally charged situations and respond in a mature, professional, composed manner

● Self- Awareness - ability to reflect, understand limitations, and seek appropriate assistance and guidance

Id., PageID# 554-55.

When Davis was hired, he worked under the supervision of Lisa Motley (“Motley”). DN 43-3, PageID# 542. Motley served both as Executive Director at ULP and as Director of Finance and Administration, an Assistant to the Chair of Cardiovascular and Thoracic Surgery at UofL. DN 52-3, PageID# 1065. Dr. Mark Slaughter (“Slaughter”) was the Chair of Cardiovascular and Thoracic Surgery. DN 43-10, PageID# 687. Thus, Motley worked, in part, for Slaughter at the time of Davis' employment. DN 52-3, PageID# 1066.

Davis was placed on a Performance Improvement Plan (“PIP”) on August 7, 2018, which put him on notice of deficiencies in his job performance and informed him that he needed to show improvement to avoid disciplinary action. DN 43-19, PageID# 756. The letter accompanying the PIP identified Davis' performance issues with specificity and was signed by Motley. Id., PageID# 756, 758. The criticisms of Davis' work included his “diminished” capacity to “endoscopically harvest viable vein efficiently” and “not tak[ing] appropriate initiatives to contribute . . . to the procedure.” Id. The letter also referenced a “recent confrontation” between Davis and a “Dr. Ganzel, ” which ULP claimed “was inappropriate and suggest[ed] a lack of self-awareness as to [Davis'] clinical capabilities and how that impacts first assistant case assignments.” Id. In addition, the letter indicated that Davis had acted with insubordination in violation of ULP policy by refusing to “take call.” Id.

The letter also notified Davis that his performance would be re-evaluated “at least once every 30 calendar days up to a maximum of 90 calendar days” and warned that a “failure to meet the performance expectations and show improved performance may result in termination of employment.” Id., PageID# 756-57. The PIP outlined the expectations Davis needed to meet, directing Davis to “accept constructive feedback and display a willingness to self-educate and learn from experienced peers, ” to keep a log of vein harvests, to “remain[ ] attentive throughout the entirety of [a] case, ” to participate in rather than just observe cases, to “anticipat[e] each surgeon's needs, ” and to “communicate with co-workers, surgeons, and management in a professional and courteous manner at all times.” Id., PageID# 757. Motley delivered the PIP to Davis on August 7, 2018. DN 43-3, PageID# 543; DN 43-9, PageID# 654.

Less than a week after being placed on the PIP, Davis filed an internal complaint with UofL claiming that he had been the victim of age discrimination. DN 43-9. In this complaint, Davis alleged that, upon delivering the PIP to Davis on August 7, Motley indicated that Davis lacked certain skills due to his age, told him that “as we get older, we find things we use [sic] to do now more difficult, ” and commented that his hair was getting grayer. Id., PageID# 654; DN 52-2, PageID# 1049. He also claimed that his coworkers ridiculed him because of his age and that Motley “turned a blind eye” to this behavior. DN 43-9, PageID# 655. Ultimately, Davis contended that Motley put him on a PIP, not because he was underperforming, but, at least in part, due to his age. Id., PageID# 655-56. After conducting an investigation, UofL reported on September 26, 2018 that, “based on a preponderance of the evidence and the totality of the circumstances, Ms. Motley did not engage in behavior of any type that created a ‘hostile environment' based on age.” DN 43-11, PageID# 716. Nonetheless, Davis was removed from under Motley's supervision and began working directly for Slaughter. DN 52-2, PageID# 1055-56. After submitting his internal complaint, but before UofL issued the findings of its investigation, Davis filed a claim with the U.S. Equal Employment Opportunity Commission (“EEOC”), charging ULP with the same allegations of age discrimination that Davis set out in the internal complaint with UofL. See DN 43-5, PageID# 582-83; DN 43-13, PageID# 720.

On September 12, 2018, Slaughter met with Davis and informed him that he was still performing below expectations. DN 43-10, PageID# 706; DN 52-2, PageID# 1061. Slaughter considered this meeting to be the first “30-day follow-up meeting” required by the PIP. DN 43-10, PageID# 706. In an email the next day, Slaughter confirmed certain “action items” that he and Davis had discussed during their meeting, including using a “revised performance sheet to document time to procure vein and quality” and “determin[ing] specific non-operating room assignments so everyone is clear on what [Davis'] responsibilities are when finished in the OR.” DN 43-12, PageID# 718. Slaughter indicated that that they would meet again in two weeks to “go over progress and additional questions.” Id.

Two days after the meeting with Slaughter, Davis filed a second internal complaint with UofL, this time claiming that, after filing his age discrimination complaints, he “began to experience retaliation by [his] employer.” DN 43-13, PageID# 720. As examples of retaliatory conduct, Davis claimed that, subsequent to his complaints, he was given “unfair and harsh assignments, ” stripped of certain “supervisory responsibilities, ” unfairly assigned to be “on-call” during holidays, and subjected to “increased scrutiny.” Id., PageID# 720-21. Davis further claimed that he was experiencing inequitable treatment relative to the two other CFAs who worked with him. Id., PageID# 722.

In the weeks following Davis' placement on the PIP, ULP documented a number of complaints and comments related to Davis' poor performance. See DN...