Henry v. Adventist Health Castle Med. Ctr.

363 F.Supp.3d 1128

David E. HENRY, M.D., Plaintiff,

v.ADVENTIST HEALTH CASTLE MEDICAL CENTER and Alan Cheung, M.D., Defendants.

CIV. NO. 18-00046 JAO-KJM

United States District Court, D. Hawai‘i.

Signed January 28, 2019

Dennis W. King, John Winnicki, Deeley King Pang & Van Etten LLLP, Honolulu, HI, for Plaintiff.

Brian W. Tilker, J. George Hetherington, Erik Andrew Rask, Brian W. Tilker, Torkildson Katz Moore Hetherington Harris & Knorek, Honolulu, HI, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, ECF NO. 37

Jill A. Otake, United States District Judge

I. INTRODUCTION

Plaintiff David E. Henry, M.D. ("Plaintiff") asserts claims for violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5 et seq., against Defendant Castle Medical Center, dba Adventist Health Castle¹ ("Defendant").² Compl., ECF No. 1. Plaintiff alleges that Defendant discriminated against him because of his race and retaliated against him after he complained about the discrimination. Id.

Currently before the Court is Defendant's Motion for Summary Judgment, ECF No. 37. Based on the following, the Court GRANTS Defendant's Motion for Summary Judgment.

II. BACKGROUND

A. Factual Background

Plaintiff is a board-certified general and bariatric surgeon, who completed his general surgery residency in 2014 and his bariatric surgery fellowship in 2015. Def.'s Concise Statement of Facts ("CSF") ¶ 1, ECF No. 38.³ Plaintiff is licensed to practice medicine in Hawai'i. Id. ¶ 2. He specializes in state-of-the-art laparoscopic and minimally invasive surgery. Id. Plaintiff entered into a Physician Recruitment Agreement ("Recruitment Agreement") and an Emergency Department Call Coverage and Uninsured Patient Services Agreement ("On-Call Agreement") with Defendant in 2015. Id. ¶¶ 4, 5; Def.'s Ex. 2, ECF No. 38-5; Def.'s Ex. 11, ECF No. 38-14. Under the Recruitment Agreement, Plaintiff was to operate a full-time private practice of medicine in his specialty on Oahu. CSF ¶ 4. Under the On-Call Agreement, Plaintiff agreed to be on call for Defendant's emergency department at least five days per month. Id. ¶ 6.

From September 1, 2015 to June 28, 2016, Plaintiff was a member of Defendant's medical staff, was granted clinical privileges at Defendant's hospital, and performed both general and bariatric surgeries at the hospital. Id. ¶ 3. Plaintiff leased space at the hospital's outpatient clinic for his private medical practice. Id. ¶ 22. Plaintiff was allowed to use Defendant's operating rooms for his private patients upon request. Id. ¶ 23. Plaintiff also had clinical privileges and performed general surgeries at The Queen's Medical Center. Id. ¶ 19.

Plaintiff, who is Caucasian, allegedly complained to Defendant of discrimination. Decl. of David E. Henry, M.D. ("Henry Decl.") ¶¶ 2, 22, ECF No. 41-1. After this complaint, Defendant initiated a peer review of seven of Plaintiff's surgeries. Id. ¶¶ 9, 22. As a result of this peer review, Defendant suspended Plaintiff's clinical privileges and terminated the On-Call Agreement in June 2016. Id. ¶ 9. It appears that Defendant's Medical Executive Committee ("MEC") then conducted a review of Plaintiff's cases and issued recommendations via letter in August 2016. See Pl.'s Ex. E, ECF No. 40-8.⁴ A Fair Hearing Panel upheld the MEC decision with some additional recommendations in September 2017,⁵ and Defendant's appeal board upheld the MEC decision in January 2018. Henry Decl. ¶ 11; Pl.'s Ex. E, ECF No. 40-8; Pl.'s Ex. F, ECF No. 40-9. According to Plaintiff, no patient ever complained about the quality of Plaintiff's care, and a review of the relevant cases by Dr. Garth Jacobsen, a professor of surgery, found that Plaintiff met the standard of care. Henry Decl. ¶¶ 9, 10.

B. Procedural History

Plaintiff filed the Complaint pro se on February 2, 2018, alleging one count of racial discrimination and one count of retaliation for engaging in protected activities. ECF No. 1. On September 10, 2018, Defendant filed a Motion for Summary Judgment (the "Motion"), ECF No. 37, and a Concise Statement of Facts in support of the Motion, ECF No. 38. On October 11, 2018, Plaintiff filed pro se his Opposition, ECF No. 40, and his Responsive Concise Statement of Facts, ECF No. 41.

On December 14, 2018, a hearing was held at which Plaintiff was represented by counsel.

III. STANDARD OF REVIEW

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Federal Rule of Civil Procedure 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see also Broussard v. Univ. of Cal. at Berkeley , 192 F.3d 1252, 1258 (9th Cir. 1999).

"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). "When the moving party has carried its burden under Rule 56 [ (a) ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." (citation and quotation marks omitted) ).

"An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law." In re Barboza , 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co. , 475 U.S. at 587, 106 S.Ct. 1348 ; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84 , 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that "the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor." (citations omitted) ).

IV. DISCUSSION

A. Pro Se Filings

As an initial matter, Plaintiff's attorney, Mr. John Winnicki, advised the Court at the hearing that another attorney, Mr. Robert Meals, had edited Plaintiff's pro se pleadings. Accordingly, the Court addresses whether Plaintiff's pro se filings should be construed liberally and concludes that it will "liberally construe the ‘inartful pleading’ " of Plaintiff. Eldridge v. Block , 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall , 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982) (per curiam) ).

The Court is concerned by the fact that Plaintiff filed several pleadings as a pro se litigant when, in actuality, he received some assistance from an attorney in drafting those filings. Generally, the Court construes pro se filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (internal citations, quotation marks, and italics omitted) ). However, "allowing a pro se litigant to receive such latitude in addition to assistance from an attorney would disadvantage the nonoffending party." Smallwood v. NCsoft Corp. , 730 F.Supp.2d 1213, 1222 (D. Haw. 2010) (quoting Ricotta v. State , 4 F.Supp.2d 961, 986 (S.D. Cal. 1998) ); see also Casumpang v. Hawaiian Commercial & Sugar Co. , 2013 WL 6191087, at *7 (D. Haw. Nov. 25, 2013), aff'd , 712 F. App'x 709 (9th Cir. 2018). Further, such "ghost-writing" by an attorney evades the responsibilities imposed on counsel by Federal Rule of Civil Procedure 11. See Smallwood , 730 F.Supp.2d at 1222. Lastly, it implicates the Rules of Professional Responsibility concerning conduct involving dishonesty, fraud, deceit, or misrepresentation. See id.

Although Mr. Winnicki represented at the hearing that Mr. Meals edited Plaintiff's pleadings, the extent to which Mr. Meals assisted Plaintiff is not otherwise clear. Thus, in an abundance of caution, the Court will construe Plaintiff's filings liberally. Even under this standard, however, the Court finds in favor of Defendant.

B. Motion for Summary Judgment

Defendant moves for summary judgment on all of Plaintiff's claims, arguing that Plaintiff is not protected under Title VII because he is an independent contractor rather than an employee. ECF No. 37 at 2. Plaintiff disagrees, arguing that he is an employee, or at least, that there is a genuine issue of material fact concerning whether he is an employee or an independent contractor. ECF No. 40 at 11-12.

Under Title VII, it is unlawful for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would

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