Goracke v. Atchison Hosp. Ass'n

DOUGLAS GORACKE, Plaintiff, v. ATCHISON HOSPITAL ASSOCIATION, Defendant.

Case No. 2:17-CV-2664-JAR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 6, 2019

MEMORANDUM AND ORDER

Plaintiff, Dr. Douglas Goracke, brings this action against Defendant Atchison Hospital Association ("the Hospital"), alleging improper medical inquires, improper disclosure of confidential information, and disability discrimination under the Rehabilitation Act,¹ and violations of both the Fair Credit Reporting Act ("FCRA")² and the Kansas Fair Credit Reporting Act ("KFCRA").³ This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. 121) and Defendant's Motion for Summary Judgment (Doc. 123). For the reasons stated in this opinion, the Court denies Plaintiff's motion and grants Defendant's Motion for Summary Judgment in its entirety.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."⁴ In applying this standard, the Court views the evidence and all reasonable inferences therefromin the light most favorable to the nonmoving party.⁵ "There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."⁶ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁷ A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."⁸

The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.⁹ In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.¹⁰

Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."¹¹ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.¹² Rather, the nonmoving party must "set forth specific facts that would beadmissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."¹³ In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."¹⁴ To successfully oppose summary judgment, the nonmovant must bring forward more than a mere scintilla of evidence in support of his position.¹⁵ A nonmovant may not create a genuine issue of material fact with unsupported, conclusory allegations."¹⁶

Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy, and inexpensive determination of every action."¹⁷ "Where, as here, the parties file cross-motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."¹⁸ The Court considers cross-motions separately: the denial of one does not require the grant of the other.¹⁹ "To the extent the cross-motions overlap, however, the Court may address the legal arguments together."²⁰ The material facts are uncontroverted in this case, and the legal issues asserted in both motions overlap. The Court therefore addresses those issues together.

II. Uncontroverted Facts

The Hospital is located in Atchison, Kansas. Plaintiff is an anesthesiologist, licensed in Kansas and Missouri, who worked as an independent contractor at the Hospital since 1992. Per Plaintiff's contract, he was the exclusive anesthesia provider at the Hospital. In 2011, the parties signed the most recent provider contract, which included a clause allowing either party to terminate it upon 120-days' notice. The Hospital Board of Directors ("the Board") delegated authority to approve Plaintiff's contract to the Hospital CEO, John Jacobson. Jacobson approved Plaintiff's 2011 contract without the Board's approval.

When Plaintiff first applied for clinical privileges in 1992, he answered "No" to the question, "Do you currently have a physical or mental health condition that affects or is likely to affect your ability to perform professional or Medical Staff duties?"²¹ He disclosed that he had a benign brain tumor surgically removed in 1991 and provided a treating physician's certification that he was unconditionally released to return to the practice of anesthesiology. Removal of the tumor led to some memory loss, but this impairment does not and has never impaired Plaintiff's ability to perform his job. Plaintiff compensates for the impairment by taking thorough notes and detailing information immediately when he is told. In each of his biennial applications for clinical privileges, Plaintiff recertified that he had no limitations that affected his ability to practice anesthesiology. Plaintiff was uniformly viewed as a very able anesthesiologist by the Hospital, with no questions as to his competence or judgment.

On December 12, 2016, a former Hospital employee filed a complaint against the Hospital with the Kansas Human Rights Commission ("KHRC") alleging "unwanted verbal andphysical sexual harassment by [the Hospital's] anesthesiologist."²² On January 3, 2017, another former Hospital employee filed a KHRC complaint against the Hospital alleging, "I was subject to physical sexual harassment by [the Hospital's] anesthesiologist," and further that "female patients were subjected to unwanted verbal and physical sexual harassment by this same anesthesiologist."²³ In early 2017, the Hospital notified Plaintiff that it had received these complaints against him, but allowed Plaintiff to continue working without restrictions or limitations.

The Hospital retained Jill Waldman, a licensed attorney at Lathrop Gage, LLP, to investigate Plaintiff's alleged inappropriate behavior. From January 18, 2017 to February 20, 2017, Waldman interviewed eighteen different individuals connected with the Hospital, including Plaintiff. Based on her interviews, legal education, and legal experience, Waldman prepared a report of her investigation, dated February 24, 2017, which included an analysis of the potential legal exposure faced by the Hospital due to Plaintiff's alleged inappropriate behavior.

The report detailed multiple allegations of inappropriate sexual behavior by Plaintiff toward staff and patients, including repeated sexual comments and innuendos, "touchy feely" conduct such back massages and shoulder rubs, inappropriately uncovering, exposing, and touching the breasts of female patients when applying "bair huggers," inappropriately being "handsy" with female patients, and "odd" behavior such as having patients undress completely for epidurals, asking patients if their breasts are numb following an epidural, standing at the foot of the bed in the delivery room, and staying in the delivery room after his work is done, even when asked to leave.²⁴ The report also detailed reports that Plaintiff "can be hostile, rude,sarcastic, and/or condescending," and further that he "can be arrogant, demeaning, difficult, confrontational, and/or snarky."²⁵ "Several reported that [Plaintiff] is a bully."²⁶ Plaintiff denies these allegations and reports that "he is tough, is very demanding, has high standards, is a perfectionist, and is strict."²⁷

The Board was informed of the KHRC complaints against Plaintiff at its January 2017 meeting. In late February 2017, the Board received a verbal summary of Waldman's report. At this point, the Board took charge of the matter involving Plaintiff and began to issue direction.²⁸ The Board decided to terminate Plaintiff's exclusive provider/medical director contract without cause and provided the required 120-day notice of termination. Through a March 15, 2017 letter signed by Jacobson, the Board offered to negotiate a new exclusive provider/medical director contract with Plaintiff, provided that he undergo an outpatient professional assessment and "agree to complete any and all conditions recommended in the assessment."²⁹ The letter also required Plaintiff to "authorize the hospital to communicate with the facility regarding [his] treatment."³⁰

Plaintiff underwent a multidisciplinary outpatient assessment at Professional Renewal Center ("PRC") in Lawrence, Kansas from May 4, 2017 to May 7, 2017. PRC is a Kansas corporation organized to provide evaluation and treatment/remediation services to professionals. PRC's evaluation process comes from the Federation of State Medical Board guidelines for statemedical boards to address sexual boundary issues in physicians.³¹ The evaluation is "based on a biopsychosocial approach coupled with consideration of the American Board of Medical Specialties/Accreditation Council of Graduate Medical Education core competency areas. The assessment is intended to identify potential contributory factors to the identified areas of concern, and how to address/remediate these areas of concern."³²

Plaintiff's evaluation included psychological tests, interviews about Plaintiff's addictions, obsessions, and compulsions, a physical examination and laboratory testing, interviews regarding Plaintiff's medications, family history, surgical history, and past trauma, testing of Plaintiff's intellectual functioning, testing for bipolar disorder, anxiety, and other mental disorders, and an interview regarding Plaintiff's sexual...