Holland v. Mercy Health

Fred W. Holland, M.D., Plaintiff v. Mercy Health, et al., Defendants

No. 3:18-cv-490-JGC

United States District Court, N.D. Ohio, Western Division

September 23, 2021

ORDER

James G. Carr Sr. U.S. District Judge

Fred W Holland, M.D., a cardiothoracic surgeon, asserts claims under Title VII, 42 U.S.C. § 2000(e) et seq., and 42 U.S.C § 1981, as well as additional, pendant state-law discrimination claims and claims for tortious interference with contract and with prospective business opportunity against one of his two former joint employers, Mercy Health-St. Vincent's Medical Center (“St Vincent”). He asserts that St. Vincent's then Senior Vice President and Chief Physician Executive Officer Imran Andrabi, and its then Medical Director of its Cardiothoracic Surgery Practice, Dr. Fayyaz Hashmi, who are both of Pakistani origin, discriminated against him because he is an American-born Caucasian.

Pending is St. Vincent's Motion for Summary Judgment. (Doc. 117). For the reasons discussed below, I grant St. Vincent's motion.

Background

1. Dr. Holland's Employment with St. Vincent and the Toledo Clinic

As discussed in a prior order, Holland v. Mercy Health, 495 F.Supp.3d 582 (N.D. Ohio 2020) (Doc. 102), the Toledo Clinic (“TC”) and defendant St. Vincent jointly employed Dr. Holland to serve as a cardiothoracic surgeon operating from St. Vincent's facilities.

TC had cardiologists on staff but had no cardiothoracic surgeons. (Doc. 73, pgID 4255); (Doc. 89, pgID 4779). It also lacked the equipment and staff necessary to operate a cardiothoracic surgery practice. (Doc. 68, pgID 3178-79). TC believed that having its own cardiothoracic surgeon to whom its cardiologists could refer patients would advance its business prospects. (Doc. 63, pgID 1111-12). St. Vincent had an opening for a third surgeon in its cardiothoracic surgery department. (Doc. 90-74, pgID 5405-06).

The parties created an employment structure for a new surgeon to serve their mutual interests. On December 12, 2012, St. Vincent and Toledo Clinic signed a Services Agreement under which Toledo Clinic would hire a cardiothoracic surgeon and assign him to perform his work at St. Vincent (the “Services Agreement”). (Doc. 129-51, pgID 12996-13007). St. Vincent agreed to provide the facilities, equipment, and personnel necessary for the surgeon to perform his work. (Id., pgID 4558).

Toledo Clinic based the surgeon's projected salary on data regarding the compensation of other cardiothoracic surgeons in the market and in an amount that St. Vincent approved. (Doc. 71, pgID 3942-43); (Doc. 68, pgID 3193-92). The parties agreed that St. Vincent would pay Toledo Clinic at a set yearly rate for five years to compensate for the surgeon's salary, benefits, and related administrative expenses. (Doc. 129-51, pgId. 12998, 13007). The total St. Vincent payments started at $712, 304.70 for year one and rose to $729, 757.16 in year five. (Id., pgID 13007).

Toledo Clinic and St. Vincent worked together to find a surgeon to implement their agreement. (Doc. 71, pgID 3806-07, 3814-15). St. Vincent took the lead because it had a medical staff recruiter, Thomas Leeds, and a recruitment budget while Toledo Clinic lacked either. (Id.). The parties identified Dr. Holland as a candidate.

As part of the hiring process, Dr. Holland interviewed with representatives of both St. Vincent and Toledo Clinic. (Doc. 90-21, pgID 5056-57). Those interviews included an interview with St. Vincent's Dr. Andrabi, and a dinner with St. Vincent cardiothoracic surgeon Dr. Hashmi. (Id.). Both doctors approved hiring Dr. Holland. (Doc. 69, pgID 3544).

2. Dr. Holland's Complaints Regarding Patient Referrals

While practicing at St. Vincent, Dr. Holland, like St. Vincent's other cardiothoracic surgeons, could receive referrals that cardiologists directed to him. In addition, some cardiologists referred patients to St. Vincent without specifying which surgeon they intended to treat the patient.

St. Vincent had a system for distributing non-surgeon-specific referrals, set out in an email by another cardiothoracic surgeon, Dr. Jim Burdine, in 2013. (Doc. 129-17, pgID 12876). That email stated that the surgeon present or on call at the time the referral came in would determine which surgeon would treat the patient. Nevertheless, it also stated that St. Vincent would honor any referring physician's request that a referred patient see a particular surgeon. (Id.).

Dr. Holland contests whether St. Vincent's cardiothoracic surgery department actually followed those procedures. He alleges that Dr. Hashmi “controlled” non-physician-specific referrals as Medical Director of the department through his control of the department's Practice Manager, Elizabeth Sheroian. He asserts that Ms. Sheroian intentionally diverted non-physician-specific referrals to Dr. Hashmi. (Doc. 131, pgID 13684-85).

Notably, Dr. Hashmi stepped down as Medical Director in or before August 2015. (Doc. 75, pgID 4108). Dr. Christopher Phillips, a Caucasian American, assumed the position. (Doc. 129-81, pgID 13340). Dr. Holland has submitted no evidence that his referral volumes changed significantly after that time. Instead, his claims rest, in part, on the fact that they did not.

During his time at St. Vincent, Dr. Holland complained frequently to a variety of St. Vincent officials and others regarding how many more referrals Dr. Hashmi received than he did and how poor a surgeon he believed Dr. Hashmi to be. See, e.g., (Doc. 131, pgID 13685-88, 13963-94); (Doc. 129-47, pgID 12954, 12955-57, 12962-63, 12965-67, 12965-67, 12969). Dr. Holland apparently believes that he was entitled to receive more referrals because he considered himself to be a superior surgeon. He based that contention on patient outcome data and his allegations regarding what he considered to be Dr. Hashmi's repeated medical malpractice. See, e.g., (Doc. 131, pgID 13687, 13704-05, 13727-28); (Doc. 129-47, pgID 12954, 12955-57, 12962-63, 12965-67, 12965-67, 12969).

In October 2014, Dr. Holland began to focus his activities on developing a cardiothoracic surgery practice at another local Mercy hospital, Mercy Health - St. Anne (“St. Anne”). (Doc. 66, pgID 2495). He also continued to perform some surgeries at St. Vincent. (Id., pgId. 2498).

3. St. Vincent's Termination of the Services Agreement

Dr. Holland's employment agreement with TC did not have any specific ending date. Instead, it stated that his employment “shall continue until terminated” by either party, subject to ninety days' notice. (Doc. 129-75, pgID 13271).

St. Vincent's Services Agreement with TC to obtain Dr. Holland's services had a five-year term “unless terminated sooner.” (Doc. 129-51, pgID 13000). The Services Agreement further provided that either party could terminate it at any time after one year without cause by giving the other party ninety days prior written notice. (Id.). The agreement specified that it “[wa]s not intended to and d[id] not confer any legal rights or benefits upon any person or entity other than the parties to this Agreement.” (Id., pgID 13003).

By letter of November 28, 2016, St. Vincent's then interim President, Thomas J. Arquilla, gave TC written notice that it would terminate its agreement regarding Dr. Holland's position effective February 28, 2017. (Doc. 117-37, pgID 10211).

Arquilla testified that in 2016, he and his executive group discussed Dr. Holland's future with St. Vincent in their weekly meetings because the Services Agreement was due for possible renewal in December 2016. (Doc. 64, pgID 1581). The group included Dr. Andrabi, who had been promoted to CEO of Mercy Health's Toledo region, Brad Bertke, St. Anne's President, and General Counsel, Katrina English. (Id.).

Arquilla testified that they decided not to renew the Services Agreement for Dr. Holland because “it was five years and Dr. Holland had not been able to get enough support to eventually, in my opinion, be successful and that the volume needed to grow at St. Anne's was not happening fast enough.” (Id.). Arquilla “believed that the agreement no longer benefited the business purposes of Mercy.” (Id.).

Arquilla testified that the idea behind the Services Agreement had been that Dr. Holland would build his practice from referrals from TC cardiologists. (Id., pgID 1586-87). Arquilla stated that a significant part of the problem with Dr. Holland's volume of work was that the cardiologists at TC, his colleagues, did not refer enough cases to him but instead, continued referring “a lot” of their patients to Toledo Hospital. (Id.).

Arquilla explained that the business assumptions underlying the Services Agreement included that St. Vincent “would grow [it's] cardiovascular service line” by having TC's cardiologists refer patients to Dr. Holland at St. Vincent. However, he concluded after five years that “the Agreement didn't work.” (Id., pgID 1642).

He also pointed to Dr. Holland's constant conflicts with Dr. Hashmi as a reason for the decision, stating “we no longer could be a party to an agreement with the Toledo Clinic when the guy that they had chosen couldn't get along with the other guys, particularly Hashmi.” (Id., pgID 1644).

4. Dr. Holland's Retaliation Allegations

Dr. Holland filed a discrimination claim with the Equal Employment Opportunity Commission (“EEOC”) on February 24, 2017. (Doc. 129-57, pgID 13086-91). Arquilla testified that he became aware of Dr. Holland's EEOC claim in March or April 2017. He attended a meeting in which St. Vincent's General Counsel, informed the executives present of Dr. Holland's claim and instructed them not to retaliate against Dr. Holland. (Id., pgID 1608-09).

For some months before the February 28, 2017 end of the Services Agreement, Bertke...