Tyson v. Or. Anesthesiology Group
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civil No. 03-1192-HA
OPINION AND ORDER
GEOFFREY TYSON, M.D.,
Plaintiff,
v.
OREGON ANESTHESIOLOGY GROUP, P.C.;
LEGACY PORTLAND HOSPITALS MEDICAL
STAFF; et al.,
Defendants.
_______________________________________
HAGGERTY, Chief Judge:
This Opinion and Order addresses the remaining pending matters in this complex
litigation. Specifically, this Opinion and Order resolves the motion for summary judgment filed
by Legacy Portland Hospitals Medical Staff, Legacy Emanuel Hospital & Health Center, and
Legacy Health System (collectively, the Legacy defendants, or Legacy) regarding their
counterclaims, the summary judgment motion asserted by co-defendant Oregon Anesthesiology
Group, P.C., (OAG), and the three motions to strike various filings related to OAG’s motion.
Oral argument has been deemed unnecessary.
PAGE 1 – OPINION AND ORDER
SUMMARY OF FACTUAL BACKGROUND
This litigation has been scrutinized exhaustively and its factual background and
procedural history need only be summarized here. Defendant OAG is a professional corporation
engaged in the business of providing anesthesiology services. Plaintiff was employed as a
Clinical Anesthesiologist at six hospitals for OAG, including Emmanuel Hospital in Portland,
Oregon, one of Legacy’s hospitals.
In February 2000, plaintiff sought treatment for chemical dependency disorders.
Defendant OAG placed plaintiff on medical leave. Defendant Legacy also placed plaintiff on
leave the following month, and advised plaintiff that he would have to apply for and obtain
reinstatement before being permitted to practice at Legacy hospitals again.
In May 2002, OAG requested plaintiff’s resignation after determining that it could no
longer continue to extend medical leave to him. Plaintiff refused to resign. In August 2002,
OAG terminated plaintiff, citing in part plaintiff’s failure to obtain Legacy’s reinstatement.
Plaintiff sued, asserting that OAG and Legacy unlawfully terminated his employment
based on disability. Plaintiff alleged that Legacy required unfair conditions for reinstatement
after OAG terminated plaintiff. Plaintiff also alleged that he requested reasonable
accommodation from Legacy for his chemical dependency, but that Legacy refused to provide
that accommodation. The parties also litigated various issues that are related to plaintiff’s claims
against Legacy generally: discovery disputes, plaintiff’s request for leave to file a Second
Amended Complaint, and plaintiff’s dispositive motions.
RELEVANT PROCEDURAL HISTORY
Plaintiff’s initial Complaint claimed that OAG unlawfully terminated his employment.
Plaintiff’s First Amended Complaint added the Legacy defendants, and asserted in part that OAG
and Legacy unlawfully terminated his employment based on his disability in violation of the
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Americans with Disabilities Act (ADA) and Oregon’s equivalent state statute. Extensive
discovery efforts became necessary. Disputes arose, partly because the scope and nature of this
discovery gave rise to possible disclosures of sensitive information.
The parties’ subsequent conduct was troubling, including limited or insufficient
cooperation among counsel and the filing of multiple motions to strike, multiple requests for
extensions, and supplemental memoranda and sur-replies. This compelled the court to schedule
multiple telephonic conferences and to issue an Order that instructed the parties on the
appropriate scope of discovery and briefing for issues pending in the case. Plaintiff subsequently
filed a Motion for Leave to File a Second Amended Complaint, which sought to add new causes
of action, including a claim for interference in his employment under the ADA, and new state
and federal claims for discrimination in public accommodations. Plaintiff’s motion seeking leave
to file a Second Amended Complaint was denied because the proposed claims arose under the
same allegations advanced by plaintiff in his First Amended Complaint, amendments would
inflict unfair prejudice upon the Legacy defendants, and because there was unjustified, undue
delay in presenting the proposed amendments.
In addition to denying plaintiff’s motion seeking leave to file a Second Amended
Complaint, this court also concluded that on the merits, the Legacy defendants were entitled to
summary dismissal of plaintiff’s asserted claims against them (and would be entitled to judgment
as to the proposed amended claims, as well). See Opinion and Order of June 13, 2007.
The Legacy defendants subsequently advanced a motion seeking summary judgment on
their counterclaims against plaintiff. Additionally, plaintiff and co-defendant OAG agreed upon
a supplemental discovery schedule and a briefing schedule for a dispositive motion brought by
OAG against plaintiff.
PENDING MOTIONS
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Motions now before the court include: the Motion for Summary Judgment by the Legacy
Defendants on Their Counterclaims [270]; OAG’s Motion for Summary Judgment [287]; Motion
to Strike Portions of Declarations Submitted by Plaintiff filed by OAG [307]; plaintiff’s Motion
to Strike Affidavits Filed With Reply Supporting Motion for Summary Judgment [313], and
OAG’s Motion to Strike the Affidavit of Stephen L. Brischetto [320]. These motions are
addressed in turn.
SUMMARY JUDGMENT BY LEGACY DEFENDANTS ON COUNTERCLAIMS [270]
The Legacy defendants seek summary judgment on three of their five counterclaims.
These allege a breach of plaintiff’s covenant not to sue (Counterclaim 1); allege a breach of
plaintiff’s promise to release and provide absolute immunity to Legacy (Counterclaim 2); and
seek indemnity and reasonable attorney fees (Counterclaim 4). This summary judgment motion
is well-taken.
In light of this court’s prior analysis, determinations and rulings, it is plain that plaintiff
breached enforceable covenants not to sue and promises to release. There is no rational dispute
that in his application for privileges from Legacy, plaintiff executed a release of all potential
claims against Legacy, granted immunity to Legacy, and covenanted not to sue Legacy. Plaintiff
expressly promised to be bound by Legacy’s valid and enforceable Credentials Policy (Policy)
and to release all liability and waive all legal claims and exhaust all appeal procedures contained
in that Policy.
Pursuant to § 2.B.2(x) of the Policy, plaintiff promised not to sue regarding any matter
pertaining to the application process. Pursuant to Paragraph 5 of the authorization signed by
plaintiff and sections 2.B.2(y) and 2.B.4(a) of the Policy, plaintiff agreed to release Legacy from
PAGE 4 – OPINION AND ORDER
any liability and to extend absolute immunity to Legacy for all matters related to the
consideration of his application.
“Releases are a species of settlement agreement and, as such, are favored by the law.”
Pioneer Resources, LLC v. D.R. Johnson Lumber Co., 68 P.3d 233, 242 (Or. App. 2003) (citing
Walcutt v. Inform Graphics, Inc., 817 P.2d 1353, 1355 (Or. App. 1991)); see also Maier v. Pac.
Heritage Homes, Inc., 72 F. Supp. 2d 1184, 1191 (D. Or. 1999) (releases and settlements are
favored by the law, are not rendered unenforceable by ordinary or negligent mistakes, and if
untainted by unconscionable conduct will not be voided even if they could be construed as
improvident). “Inherent in the purpose of a release agreement is a promise to abandon a claim or
right that is within the contemplation of the parties.” Patterson v. Am. Med. Sys. Inc., 916 P.2d
881, 882 (Or. App. 1996) (citation omitted). If a release’s terms “unambiguously express the
intent of the parties, [the release] must be enforced accordingly.” Id.
Plaintiff’s release of claims against Legacy must be upheld as valid. This court examined
these issues extensively in its Opinion and Order of June 13, 2007, and now adopts the reasoning
and conclusions presented therein. See Opinion and Order of June 13, 2007 at 13-22. As part of
his application process, plaintiff made enforceable promises agreeing to waive all legal claims
against Legacy, and to provide absolute immunity to Legacy. Plaintiff has offered no persuasive
basis for deciding otherwise or for waiving or voiding those promises.
Plaintiff’s subsequent amendments of his lawsuit to include claims against the Legacy
defendants (specifically, the “Legacy Portland Hospitals Medical Staff”) were in direct
contravention to the earlier, enforceable promises he made to Legacy. The claims plaintiff
PAGE 5 – OPINION AND ORDER
asserted in his First Amended Complaint against Legacy involve alleged conduct that occurred
while he was an applicant, and plainly breach his prior promises.
Therefore, Legacy is entitled to summary judgment on the “breach” counterclaims. The
remaining issue is whether plaintiff’s express promise to reimburse Legacy for costs and
reasonable fees incurred in defending a legal action such as this should be enforced.
Counsel for Legacy indicate that they will submit a petition for fees and costs after being
granted summary judgment on their substantive counterclaims. Plaintiff presents no persuasive
argument that Legacy should not be entitled to indemnity in the form of an award of at least
some fees and costs. This aspect of defendants’ summary judgment motion is granted as follows:
the Legacy defendants shall file a Cost Bill and a petition for attorney fees no later than thirty
days from the date of this Opinion and Order. Plaintiff shall file any objections no later than
twenty-one days after the Cost Bill and fee petition are docketed. Legacy may file a Reply brief
in support of its Cost Bill and fee petition within fourteen days of the filing of plaintiff’s
Objections. The court will determine the extent of Legacy’s award without further briefing or
oral argument.
OAG’s MOTION FOR SUMMARY JUDGMENT [287]
Next, this court turns to the summary judgment motion advanced by co-defendant OAG.
Because much of the prior motions practice in this litigation involved plaintiff’s relationship with
Legacy, a brief summary of facts pertaining to plaintiff’s history with OAG is appropriate. The
court concludes that the following factual summary is supported by the record and is
substantively unrefuted.
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Plaintiff began working for OAG as a clinical anesthesiologist in May 1998. In early
2000 plaintiff was confronted about drug abuse by OAG Chief Executive Officer Joy Ketchum.
Plaintiff was suspended from his clinical practice and placed on a leave of absence. Plaintiff
entered into drug diversion programs with the Washington Physicians Health Program (WPHP)
and Oregon’s Diversion Program for Health Professionals (HHP).
Plaintiff was initially terminated by OAG, but on April 20, 2000, his termination was
rescinded and he was placed on an indefinite suspension. On June 2, 2000, plaintiff requested
that OAG terminate his clinical practice. On June 16, 2000, plaintiff and OAG executed an
addendum to plaintiff’s employment agreement that required plaintiff to relinquish his clinical
privileges and provided that if plaintiff agreed to never seek to be employed in a clinical capacity
with OAG, then OAG would keep plaintiff employed and would explore administrative
employment opportunities on behalf of plaintiff.
In June 2000, plaintiff sought consideration for the position of Physician Billing
Compliance Officer with OAG. Plaintiff was deemed unqualified for this position.
Plaintiff subsequently obtained credentials to work with a non-OAG practitioner in
Edmonds, Washington. Plaintiff began to work there in a clinical capacity in November, 2001.
Plaintiff was on a leave of absence with OAG from February 2000 until August 2002.
On August 14, 2002, OAG terminated plaintiff after learning that he was practicing medicine in
Washington. The grounds for this termination include OAG’s belief that plaintiff treated patients
while under the influence of drugs, stole medications paid for by patients, committed fraudulent
billing, lied about his drug usage on credentialing applications, and failed to obtain credentials in
PAGE 7 – OPINION AND ORDER
any Oregon hospital during the almost thirty months that OAG kept plaintiff on a leave of
absence.
Plaintiff contends that OAG (and co-defendant Legacy) violated the ADA and related
Oregon employment statutes by subjecting plaintiff “to adverse actions because of an actual or
perceived disability which did not prevent the performance of his job with reasonable
accommodation.” First. Am. Comp. at Para. 28, 29. As noted above, the claims against Legacy
have been resolved in favor of Legacy. The summary judgment motion brought by OAG seeks
to dismiss the remaining claims in this action. This motion is well-taken.
I.
Summary judgment standards.
A party is entitled to summary judgment as a matter of law if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if any, show there is
no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c); see Bahn v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991). The moving party carries the initial burden of proof and
meets this burden by identifying portions of the record on file that demonstrate the absence of
any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once
the initial burden is satisfied, the burden shifts to the non-moving party to demonstrate through
the production of probative evidence that there remains an issue of fact to be tried. Id.
The court must view the evidence in the light most favorable to the non-moving party.
Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (citations omitted).
All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the
moving party. MetroPCS, Inc. v. City and Co. of San Fran., 400 F.3d 715, 720 (9th Cir. 2005)
(citation omitted). Where different ultimate inferences may be drawn, summary judgment is
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inappropriate. Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981) (citing Fed. R.
Civ. P. 56(c)).
Deference to the non-moving party has limits. The non-moving party “must set forth
specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). The “mere
existence of a scintilla of evidence in support of the [non-moving party’s] position would be
insufficient.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Where “the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
The Ninth Circuit has reasoned that courts should require very little evidence to survive
summary judgment in an employment discrimination case, because the ultimate question is one
that is most appropriately conducted by the fact-finder, upon a full record. Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
II.
Disability discrimination standards.
The ADA prohibits discrimination by certain entities, including private employers,
against qualified individuals with a disability and, in some cases, against persons perceived to be
disabled. Specifically, it provides that no employer falling within the scope of the ADA “shall
discriminate against a qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. §§ 12112(a); see also 42 U.S.C. § 12111(5) (defining employer).
PAGE 9 – OPINION AND ORDER
The Ninth Circuit analyzes ADA cases using the framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Raytheon Co. v. Hernandez, 540 U.S. 44,
50 (2003). As set out under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination.
To establish a prima facie case of discrimination in violation of the ADA by an
employer, a plaintiff must prove: 1) that he or she is a qualified individual with a disability; 2)
that he or she has suffered an adverse employment action; and 3) that a causal connection exists
between the adverse employment action and the disability. See Hutton v. Elf Atochem N. Am.,
Inc., 273 F.3d 884, 891 (9th Cir. 2001).
The requisite degree of proof necessary to establish a prima facie case of discrimination
on summary judgment “is minimal and does not even need to rise to the level of a preponderance
of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
A “qualified individual with a disability” is identified as “an individual with a disability
who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
The ADA defines an individual with a disability as someone who: (1) has a physical or
mental impairment that substantially limits one or more of the individual’s major life activities;
(2) has a record of the impairment; or (3) is regarded as having an impairment. 42 U.S.C. §
12102(2)(A).
Once a prima facie case is presented by a plaintiff, the burden of production then shifts to
the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. The plaintiff is then afforded an opportunity to demonstrate that the employer’s proffered
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reason was pretextual, “either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer’s proffered explanation
is unworthy of credence.” Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Oregon’s Discrimination Against Disabled Persons in Employment Act (the Oregon Act)
is in part modeled after the ADA and contains language that is similar to the ADA. Wheeler v.
Marathon Printing, Inc., 974 P.2d 207, 213 n.6 (Or. App. 1998).
The Oregon Act provides that “O.R.S. 659A.112 to 659A.139 shall be construed to the
extent possible in a manner that is consistent with any similar provisions of the federal
Americans with Disabilities Act of 1990, as amended.” O.R.S. 659A.139. Although Oregon
courts analyzing claims under the Oregon Act have rejected the McDonnell Douglas
burden-shifting approach, see Callan v. Confed. of Or. School Admin., 717 P.2d 1252, 1254 (Or.
App. 1986), that approach is nevertheless maintained for assessing Oregon employment
discrimination claims brought in federal court. See Snead v. Metro. Prop. & Cas. Ins. Co., 237
F.3d 1080, 1091-93 (9th Cir. 2001). “The standard for establishing a prima facie case of
discrimination under Oregon law is identical to that used in federal law.” Id. at 1087.
III.
Analysis of OAG’s summary judgment motion.
As noted above, the ADA defines an individual with a disability as someone who has an
impairment that substantially limits one or more of the individual’s major life activities, or has a
record of the impairment, or is regarded as having an impairment. 42 U.S.C. § 12102(2)(A).
A person with a medical condition, even one that affects his or her choice and range of
activities, is not considered disabled under the ADA without a showing that the condition
restricts a “major life activity.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,
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202 (2002); see also 42 U.S.C. § 12102(2)(A); O.R.S. 659.400(1) (a plaintiff must also
demonstrate that her impairment substantially limited a major life activity). The primary
argument advanced by OAG is that plaintiff has failed to present a prima facie case of
discrimination in violation of the ADA or the Oregon Act by OAG because he cannot show that
he is a qualified individual with a disability. Defendant OAG contends that plaintiff was not
substantially limited in any major activity, and that OAG did not consider him to be so limited.
This court agrees.
Moreover, even if plaintiff could establish that he should be construed as a qualified
individual with a disability, OAG was under no obligation to further accommodate plaintiff.
Specifically, OAG was not obliged to provide additional leave beyond the almost thirty months
plaintiff received, or to transfer plaintiff to employment positions for which he was unqualified.
Finally, this court would also conclude in the alternative that even if plaintiff could meet
his prima facie burden, OAG has presented uncontroverted evidence that plaintiff was
terminated for legitimate non-discriminatory reasons. Accordingly, OAG is entitled to summary
judgment as to plaintiff’s remaining claims and this action must be dismissed with prejudice as to
OAG.
A.
Plaintiff fails to establish disability during ADA coverage.
This court concludes that plaintiff cannot show he is a qualified individual with a
disability. The first question is whether plaintiff was eligible for ADA coverage, and if so,
when. The Act specifically excludes persons engaged in current illegal drug use from its
definition:
For purposes of this title, the term “qualified individual with a
disability” shall not include any employee or applicant who is
PAGE 12 – OPINION AND ORDER
currently engaging in the illegal use of drugs, when the covered
entity acts on the basis of such use.
42 U.S.C. § 12114(a).
However, this exclusion does not extend to an individual (such as plaintiff) who has
successfully completed, or is in the process of completing, “a supervised drug rehabilitation
program and [who] is no longer engaging in the illegal use of drugs, or has otherwise been
rehabilitated successfully and is no longer engaging in such use.” 42 U.S.C. § 12114(b).
This court concludes that ADA coverage was not triggered automatically when plaintiff
was released from his rehabilitation treatment. “Mere participation in a rehabilitation program is
not enough to trigger the protections of § 12114(b),” because employers are also entitled to
assurances that the employee is refraining from the continued illegal use of drugs and the
impacts of that use. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001)
(citations omitted) (employee not entitled to the protections of the ADA’s safe-harbor provision
because she had not refrained from the use of drugs and alcohol for a sufficient length of time).
In its motion, OAG proposes that a period of ninety days following release from treatment is
adequate to present the assurance to which OAG was entitled. This court agrees that such a
period following release from treatment is reasonable to assure that plaintiff’s substance abuse
was no longer a “real and ongoing problem.” Id. (citation and quotations omitted). Accordingly,
plaintiff’s potential rights under the applicable disability statutes arose no earlier than August 26,
2000.
Next, plaintiff must establish that he suffered from an actual disability, or was regarded
as such, from August 26, 2000 through his termination by OAG on August 14, 2002. This court
addresses the question of whether plaintiff was actually disabled first.
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Plaintiff contends that his drug addiction should be construed as a disability per se.
Some decisions could be interpreted as supporting this assertion. See, e.g., Perritt v. Trane US,
Inc., 2008 WL 440994, at *3 (W. D. Ark. February 13, 2008) (citation omitted) (it is
well-established that substance abuse ((alcoholism)) meets the definition of a disability under the
ADA); see also Brown, 246 F.3d at 1187 (citation omitted) (substance abuse ((alcoholism)) is a
protected disability under the ADA).
The Brown court based this assumption on a footnote provided in a ruling in 1995 that
commented that the ADA “protects an individual’s status as an alcoholic. . . .” Brown, 246 F.3d
at 1187 (citing Collings v. Longview Fibre Co., 63 F.3d 828, 832 n.4 (9th Cir.1995)). However,
despite including this footnote, the holding by the Collings court merely assumed, without
deciding, that the plaintiffs in the case suffered from a drug addiction disability. Id. at 832.
This court is persuaded by more reasoned approaches taken in other decisions. The
United States District Court for the District of Hawaii recently recognized that a drug addiction
that substantially limits one or more major life activities is a recognized disability under the
ADA. Kula v. Malani, 539 F. Supp.2d 1263, 1268 (D. Hi. 2008) (internal quotations and
citations omitted). This approach is consistent with the Supreme Court’s recognition that the
ADA imposes a “statutory obligation to determine the existence of disabilities on a case-by-case
basis.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999).
In light of this, a plaintiff suffering from a substance addiction may not be entitled to a
finding that the addiction is a per se disability. See Jeffrey O. v. City of Boca Raton, 511 F.
Supp. 2d 1328, 1333 -1334 (S. D. Fla. 2007) (footnote and citations omitted) (the ADA requires
individualized inquiries, and simply being “a recovering substance abuser” is not a per se
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disability; instead, the question presented is whether such plaintiffs have met their burden to
demonstrate that their recovering status substantially limits one or more major life activities); see
also Roig v. Miami Federal Credit Union, 353 F. Supp. 2d 1213, 1216 (S. D. Fla. 2005)
(footnote omitted) (although “some courts have found that [substance abuse] can, in certain
narrow cases, constitute a ‘disability’ under the ADA,” a plaintiff must still “present sufficient
evidence to pass an individualized assessment”).
As reviewed above, establishing an ADA disability involves a three-step analysis: (1) a
plaintiff must demonstrate that he or she is impaired; (2) a plaintiff must identify the life activity
that is impaired and demonstrate that it is a “major life activity” under the ADA; and (3) a
plaintiff must show that the impairment substantially limits that life activity. Id. (citing Bragdon
v. Abbott, 524 U.S. 624, 631 (1998)). The “substantially limits” standard is severe and must
include permanent or long-term restrictions on performance of the life activity. Williams, 534
U.S. at 198.
Plaintiff advances a theory that his addiction problems substantially limited him in the
major life activities of work, interacting with others, and “accessing medical care.” This court
concludes that plaintiff has failed to present substantive evidence of permanent or long-term
restrictions on his ability to work or to interact with others, and that his ability to “access medical
care” falls short of being a major life activity.
B.
Plaintiff is not substantially limited in working.
The applicable EEOC regulations specify that a person is substantially limited in the
major life activity of working if he or she is “significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared to the average
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person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). The
Supreme Court has held that to be substantially limited in the major life activity of working, “one
must be precluded from more than one type of job, a specialized job, or a particular job of
choice.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). “If jobs utilizing an
individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is
not precluded from a broad range of jobs.” Id.
The Ninth Circuit requires that a plaintiff alleging substantial limitations in the major life
activity of working must present specific evidence about relevant labor markets and identify the
requirements posed by the class of jobs that were problematic because of the plaintiff’s
limitations. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1009 (9th Cir. 2007). This court
concludes that the record establishes that plaintiff was able to practice general medicine, or
perform work as a medical researcher, internist, surgeon, or medical administrator, despite his
addiction problems.
As discussed more fully below, plaintiff has submitted a Declaration from vocational
expert Richard Ross, who opines that plaintiff’s chemical dependency substantially limited him
in the major life activity of work. See Declaration of Richard Ross, Paras. 3,5, 6, 9 and 12. This
court concludes that these legal conclusions are improper in form and that OAG’s motion to
strike them is well-taken. However, even if admissible, the conclusions from Ross are vague and
inadequately supported with specific, relevant statistical analysis. Plaintiff was capable of
emerging from his rehabilitation and finding employment in a host of available jobs. Relatedly,
plaintiff’s assertion that he faced the substantial limitation of being permitted to work only two
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days per week is rejected. The evidence is at best equivocal as to whether plaintiff was actually
so limited, and if he was, such a limitation was temporary and directed to clinical work and
inapplicable to a broader range of available jobs.
C.
Plaintiff is not substantially limited in interacting with others.
Interacting with others is a major life activity. See Head v. Glacier Northwest, Inc., 413
F.3d 1053, 1059 (9th Cir. 2005). To demonstrate a substantial impairment in the ability to
interact with others, a plaintiff is required to show that his or her relations with others were beset
regularly with severe problems, such as consistently high levels of hostility, social withdrawal,
or communication failures. Id. (quotations and citations omitted). A plaintiff who alleges “that
he avoids crowds, stores, large family gatherings, and even doctor’s appointments,” and often
would not leave the house or answer the telephone, has alleged sufficient facts to show a
substantial limitation and avoid summary judgment. Id.
Here, however, plaintiff relies upon the declaration of Daniel E. Wolf, D.O., which
describes plaintiff’s behavioral patterns prior to his rehabilitation. Additionally, plaintiff also
refers to his own declaration that his addictions caused marital problems, and that OAG officers
exhibited hostility toward him after his initiated this litigation.
These assertions fall far short of the kind of evidence the Ninth Circuit has recognized as
adequate for avoiding summary judgment regarding alleged limitations in interacting with
others. See Head, 413 F.3d 1060-61; see also McAlindin v. Co. of San Diego, 192 F.3d 1226,
1235 (9th Cir. 1999) (citations and quotations omitted) (mere trouble getting along with co-
workers is insufficient to show a substantial limitation; the limitation must be severe or, in other
words, substantial when compared to the average person in the general population). To survive
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summary judgment, affidavits and declarations supporting the existence of a disability must be
more than merely self-serving and must contain sufficient detail to convey the existence of an
impairment. Head, 413 F.3d at 1059.
D.
“Accessing medical care” is not a major life activity.
Plaintiff asserts he is substantially limited in accessing medical care, because he refuses
to accept any form of pain medication for fear of relapsing into substance abuse. Plaintiff has
failed to establish that choosing to refuse pain medication should qualify as a major life activity.
A major life activity includes functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning and working. 45 C.F.R. § 84.3(J)(2)(ii).
At the very least, the activity at issue must be significant to everyday life, or “central to the life
process itself.” Bragdon, 524 U.S. at 638. Plaintiff’s decisions about whether to subject himself
to pain medications cannot be so construed.
Alternatively, even if plaintiff’s inability to accept treatment for pain could be construed
as a limitation on a major life activity, the sporadic and intermittent occurrences of this limitation
cannot be viewed as a severe, permanent or long-term restriction. See Williams, 534 U.S. at 198.
E.
Plaintiff was not regarded as disabled.
Plaintiff’s alternative argument that OAG regarded him as substantially limited in the
major life activity of working is also rejected. A summary of the “regarded as” ADA analysis is
warranted.
“It offends the ADA as much for a person to be ‘regarded as’ having a disability, as
actually to have one.” E.E.O.C. v. United Parcel Serv., Inc., 306 F.3d 794, 803-04 (9th Cir.
PAGE 18 – OPINION AND ORDER
2002). The Supreme Court has recognized that a person may advance a “regarded as” disabled
claim, at least as such a claim pertains to limitations upon the major life activity of working.
Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22 (1999); see also Sutton, 527 U.S. at
489:
There are two apparent ways in which individuals may fall within
this statutory definition: (1) a covered entity mistakenly believes
that a person has a physical impairment that substantially limits
one or more major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substantially limits
one or more major life activities. In both cases, it is necessary that
a covered entity entertain misperceptions about the individual – it
must believe either that one has a substantially limiting impairment
that one does not have or that one has a substantially limiting
impairment when, in fact, the impairment is not so limiting. These
misperceptions often “resul[t] from stereotypic assumptions not
truly indicative of . . . individual ability.” See 42 U.S.C. §
12101[(a)](7).
“As with real impairments, . . . a perceived impairment must be substantially limiting and
significant.” Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir. 1997) (citation
omitted).
Following Sutton, a plaintiff alleging a “regarded as” claim must provide evidence of the
employer’s subjective belief that the plaintiff is substantially impaired. See, e.g., E.E.O.C. , 306
F.3d at 805. The Supreme Court has emphasized that a plaintiff must show that the employer
regarded the plaintiff as substantially limited in a major life activity and not just unable to meet a
particular job performance standard. Murphy, 527 U.S. at 524. An employee must show that the
employer regarded the employee as impaired and must also provide evidence that the imputed
impairment is objectively substantially limiting. See E.E.O.C., 306 F.3d at 801.
PAGE 19 – OPINION AND ORDER
Accordingly, an allegation that an employer regards an employee’s impairment as
precluding the employee from a single, particular position “is insufficient to support a claim that
the employer regards the employee as having a substantially limiting impairment.” Walton, 492
F.3d at 1009 (citing Murphy, 527 U.S. at 523). Instead:
in order to state a “regarded as” claim a plaintiff must establish that
the employer believes that the plaintiff has some impairment, and
provide evidence that the employer subjectively believes that the
plaintiff is substantially limited in a major life activity. If the
plaintiff does not have direct evidence of the employer’s subjective
belief that the plaintiff is substantially limited in a major life
activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially
limiting impairment.
Walton, 492 F.3d at 1007.
In this case, OAG obtained information about plaintiff’s work limitations from plaintiff’s
treatment providers. There is no evidence that OAG committed the errors that the Supreme
Court in Sutton recognized as necessary to a “regarded as” claim. Specifically, plaintiff fails to
show that OAG’s knowledge of the opinions of his treatment providers induced either (1) a
mistaken belief that plaintiff had a physical impairment that substantially limited him in working,
or (2) a mistaken belief that an actual, nonlimiting impairment substantially limited plaintiff. See
Sutton, 527 U.S. at 489. As explained above, the Court recognized that a “regarded as” claim
requires a showing that the employer “entertain misperceptions about” the employee. Id.; see
also 42 U.S.C. § 12102(2). The record of this case establishes that OAG was not mistaken about
its understandings of plaintiff’s substance abuse problems and the restrictions they imposed upon
him.
PAGE 20 – OPINION AND ORDER
Plaintiff’s reliance upon the addendum OAG and plaintiff executed in June 2000, under
which plaintiff relinquished his clinical privileges with OAG, is also misplaced. That addendum
arose out of negotiations between plaintiff and Ketchum, after plaintiff reflected upon the high
mortality rates of anesthesiologists who suffer relapse and requested that his clinical contract
with OAG be terminated.
Moreover, as explained herein, this court has ruled that plaintiff’s potential rights under
the applicable disability statutes arose no earlier than August 26, 2000. Plaintiff was not entitled
to ADA protections until OAG was assured that plaintiff’s substance abuse was no longer a real
and ongoing problem.
This court has scrutinized the record and the remainder of plaintiff’s arguments regarding
possible positions with OAG for which plaintiff was not qualified and OAG’s efforts to terminate
plaintiff in 2001. In light of the specific standards articulated above, these arguments lack the
requisite proof or evidence to sustain plaintiff’s “regarded as” claim against OAG’s summary
judgment motion.
F.
Plaintiff fails to establish that he was “qualified.”
Even assuming without deciding that plaintiff could show that he should be viewed as
disabled during the period of statutory coverage, he was never qualified to work because he
lacked the proper credentials or privileges that are required to practice clinical medicine.
Accordingly, plaintiff’s contentions that OAG should have allowed him to work in a clinical
capacity in a pain management position is specious. Plaintiff lacked credentials in any Oregon
hospital and was unqualified to be assigned by OAG to any pain management position.
PAGE 21 – OPINION AND ORDER
This court has already carefully considered plaintiff’s allegations that OAG (and Legacy)
should be blamed for his failures to obtain credentials. See Opinion and Order of June 13, 2007
at 22-24. As this court was compelled to conclude previously, the record establishes beyond any
reasonable factual dispute that after initiating an application for privileges in June 2001, plaintiff
never met or complied with the standard threshold requirements for such applications. The
responsibility for providing a complete application plainly rests with the applicant. Plaintiff’s
efforts to evade the responsibility for completing his application, providing updated information,
and ensuring that sufficient information was available to make a determination regarding his
credentials application fail to create triable issues of fact that preclude judgment for OAG on the
basis that plaintiff was not qualified as required under the applicable disability statutes.
G.
Plaintiff was owed no duty to be accommodated as he requested.
Assuming without deciding that plaintiff could establish that he was a qualified
individual with a disability for purposes of being entitled to protections under the applicable
disability statutes, his contentions that OAG should have accommodated him with additional
leave or by transferring him into other employment positions that he desired are without merit.
Because OAG was not required to engage in an interactive process with plaintiff, the analysis of
why plaintiff’s accommodation argument fails is brief.
Once an employer is aware of an employee’s disability, the employer bears a mandatory
obligation to engage in an interactive process with the employee. Humphrey v. Mem. Hosps.
Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001) (citation omitted). This process should “identify the
precise limitations resulting from the disability and potential reasonable accommodations that
could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). The parties are obligated to
PAGE 22 – OPINION AND ORDER
engage in a “good-faith exploration of possible accommodations between employers and
individual employees.” Humphrey, 239 F.3d at 1137-38 (citation omitted). Employers who do
not engage in the interactive process in good faith may be liable statutorily, “if a reasonable
accommodation would have been possible.” Id.; see also Hansen v. Henderson, 233 F.3d 521,
523 (7th Cir. 2000) (if no reasonable accommodation was “the breakdown of the interactive
process would be academic”).
Besides failing to establish that he was a qualified individual with a disability, plaintiff
makes an insufficient showing that a reasonable accommodation existed. Accordingly, plaintiff’s
allegations about OAG’s efforts to engage in the interactive process are rendered moot. First,
plaintiff’s desire for additional leave was not reasonable. See Walsh v. United Parcel Serv., 201
F.3d 718, 727 (6th Cir. 2000) (footnote omitted) (a “review of case law in this and other circuits
disclosed no cases where an employer was required to allow an employee to take a leave of
absence for well in excess of a year-let alone indefinitely – as a reasonable accommodation to
the employee’s disability”).
Second, plaintiff’s desires to be selected for positions fail to establish that such an
accommodation would have been reasonable. Plaintiff lacked the requisite qualifications or
guidelines applicable to the respective positions.
H.
Plaintiff was terminated for legitimate reasons.
Even if plaintiff could establish a prima facie case under the applicable disability
statutes, which this court concludes he cannot, OAG is entitled to summary judgment on the
alternative grounds that it had legitimate, nondiscriminatory reasons for the adverse employment
action plaintiff experienced, and plaintiff cannot demonstrate that OAG’s proffered reasons were
PAGE 23 – OPINION AND ORDER
pretextual. See Burdine, 450 U.S. at 256. Some of the legitimate reasons for plaintiff’s
termination include OAG’s concern that plaintiff stole medications meant for his patients,
abandoned patients under his care while he administered drugs to himself, lacked proper
credentials, obtained employment in Washington that called into question the scope of OAG’s
professional liability policy, and was untruthful when asked about his substance abuse problem.
To refute these reasons as pretextual, plaintiff must either raise an issue of fact as to
whether these reasons are genuine, or must introduce direct evidence of a retaliatory motive.
Villiarimo v. Aloha Island Air, Inc., 281 F3d 1054, 1063 (9th Cir 2002). Plaintiff has failed to do
this. Accordingly, even if plaintiff could present a prima facie case under the applicable
disability statutes, OAG would nevertheless be entitled to summary judgment because of the
unrefuted legitimate, nondiscriminatory reasons it had for terminating plaintiff.
For all of these foregoing reasons, this court is compelled to grant OAG’s Motion for
Summary Judgment [287] in its entirety. The court turns now to OAG’s Motion to Strike
Portions of Declarations Submitted by Plaintiff; plaintiff’s Motion to Strike Affidavits Filed With
Reply Supporting Motion for Summary Judgment; and OAG’s Motion to Strike the Affidavit of
Stephen L. Brischetto.
OAG’s MOTION TO STRIKE PORTIONS OF DECLARATIONS [307]
This motion by OAG challenges several submissions made by plaintiff. Specifically,
OAG moves to strike statements contained in portions of the Declaration of Richard Ross
(discussed in part above); the Declaration of John Olson, M.D.; the Declaration of David
Naibert, M.D.; the Declaration of Carl Balog, M.D.; and the Declaration of Geoffrey Tyson.
After examining the challenged statements, this court concludes that OAG would be entitled to
PAGE 24 – OPINION AND ORDER
summary judgment even if these statements were admitted and considered. Although this
conclusion suggests that the motion to strike could be construed as moot, the motion is largely
well-taken and granted in part.
I.
Declaration of Richard Ross.
The statements by Richard Ross that OAG challenges have been addressed above. In his
Declaration, Ross opines that plaintiff’s chemical dependency substantially limited him in the
major life activity of work and that “OAG’s perception” that plaintiff was precluded from
returning to clinical practice substantially limited his ability to be employed in certain
occupations. See Declaration of Richard Ross, Paras. 3,5, 6, 9 and 12. This court concludes that
despite testifying as a vocational expert, the legal conclusions by Ross are improper in form and
that OAG’s motion to strike them is well-taken.
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Rulings on the admissibility of expert testimony under Rule 702 are committed to the
sound discretion of the trial court. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997). More
specifically, the Supreme Court has imposed a gatekeeping obligation on trial judges to engage
in objective screening designed to ensure that scientific evidence that is put before the jury “is
not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993);
see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 150-51 (1999) (emphasizing that trial
PAGE 25 – OPINION AND ORDER
judges are entitled to broad discretion when discharging their gatekeeping function); United
States. v. Hermanek, 289 F.3d 1076, 1093 (9th Cir. 2002) (the Supreme Court made clear that
the district court’s duty to act as gatekeeper and to assure the reliability of proffered expert
testimony before admitting it applies to all (not just scientific) expert testimony).
One of the threshold questions for admissibility of expert testimony is whether the
proffered testimony will assist the trier of fact. Daubert, 509 U.S. at 592. An expert’s “bald
assurance of validity is not enough.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d
1311, 1316 (9th Cir. 1995) ( Daubert II). Moreover, generally, “[c]onclusory allegations . . . ,
without factual support, are insufficient to defeat summary judgment.” Nat’l Steel Corp. v.
Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997) (citation omitted).
As noted above, even if the legal conclusions from Ross were deemed admissible, they
were vague and inadequately supported with specific, relevant statistical analysis. As such, the
statements fall short of defeating OAG’s summary judgment motion. Plaintiff was capable of
emerging from his rehabilitation and finding employment in a host of available jobs.
II.
Declaration of John Olson, M.D.
Next, OAG raises a similar challenge and asks the court to strike the legal conclusions
contained in paragraphs 10 and 11 of the Declaration of John Olson, M.D. because these
paragraphs contain improper legal conclusions. Doctor Olson opined that plaintiff “was
qualified to perform the essential functions of positions requiring basic pain management
services in June 2001 and was qualified to perform the essential functions of positions requiring
advanced interventional pain management procedures by the Spring of2002.” Olson Decl., Para.
10. Doctor Olson also expressed the opinion about what accommodations in the workplace were
PAGE 26 – OPINION AND ORDER
necessary for plaintiff to work in pain management, and that they were not an “undue hardship.”
Id. at Para. 11.
These legal conclusions proffered by Dr. Olson were improper. Nevertheless, his views
on the merits of plaintiff’s disability claims against OAG, even if admissible, fail to preclude
summary judgment for OAG.
III.
Declaration of David Naibert, M.D.
Next, OAG moves to strike a sentence of Dr. Naibert’s declaration in which the doctor
opines that plaintiff was one of the most skilled pain management physicians in Washington.
Declaration of Dr. Naibert, M.D. at Para. 5. To the extent that this statement may be beyond Dr.
Naibert’s personal knowledge, the court concludes that any error is harmless. Notwithstanding
Dr. Naibert’s regard for plaintiff’s skills, OAG is entitled to summary judgment on plaintiff’s
claims for the reasons provided above.
IV.
Declaration of Carl Balog, M.D.
Next OAG challenges two statements presented in the declaration of Dr. Carl Balog that
purport to repeat what OAG Chief Executive Officer Joy Ketchum may have said. Because the
admissibility of this alleged hearsay would fail to affect the merits of OAG’s summary judgment
motion, this aspect of the motion to strike is denied as moot.
V.
Declaration of Geoffrey Tyson.
The final portion of OAG’s motion to strike challenges legal conclusions proffered by
plaintiff in his declaration. Although a plaintiff’s testimony may at times “suffice to establish a
genuine issue of material fact,” this possibility “in no way impugns our longstanding precedent
that conclusory declarations are insufficient to raise a question of material fact.” Head, 413 F.3d
PAGE 27 – OPINION AND ORDER
at 1059. To the extent that plaintiff asserts impermissible legal conclusions and speculation in
paragraphs 42, 52, 53, 56, 57, and 58 of his declaration, OAG’s challenges are well-taken.
However, this court considered plaintiff’s assertions in these paragraphs and nevertheless
concluded that despite plaintiff’s beliefs and conclusions, OAG was entitled to summary
judgment. Accordingly, OAG’s motion is granted as to plaintiff’s conclusions and speculative
statements as identified in this motion, but even if these statements were admitted OAG would
be entitled to summary judgment for the reasons provided above.
PLAINTIFF’S MOTION TO STRIKE AFFIDAVITS FILED WITH REPLY
SUPPORTING MOTION FOR SUMMARY JUDGMENT [313]
Plaintiff moves to strike the Affidavit of Joy Ketchum and the Declaration of Román D.
Hernández, and the exhibits attached to both, which OAG filed in support of its Reply brief.
Plaintiff sought a court order either striking these filings or granting leave to plaintiff to file
supplemental briefing in response to them.
There is no dispute that a party may not file “new” evidence with a reply and then deprive
the opposing party of an opportunity to respond to the new evidence. See Provenz v. Miller, 102
F.3d 1478, 1483 (9th Cir. 1996). This court has examined the Ketchum Affidavit and the
Hernández Declaration, and the exhibits attached to both, and concludes that these filings do not
constitute new evidence. Instead, they rebut arguments asserted by plaintiff – including
assertions first raised by plaintiff in his opposition to OAG’s summary judgment motion.
Nevertheless, the court has re-examined the merits of OAG’s dispositive motion without
benefit of the challenged submissions. Because OAG would be entitled to summary judgment
regardless of these submissions, the court declines to undertake further scrutiny of their
PAGE 28 – OPINION AND ORDER
propriety. The submissions were proper, do not constitute “new” evidence, and plaintiff is not
entitled to leave for further supplemental briefing. Accordingly, plaintiff’s motion to strike is
denied.
OAG’S MOTION TO STRIKE THE AFFIDAVIT OF STEPHEN L. BRISCHETTO [320]
Finally, OAG moves to strike the Affidavit of Stephen L. Brischetto that was filed in
support of plaintiff’s Motion to Strike or in the Alternative to Permit Supplemental Filing.
Because the court ascertained that plaintiff’s underlying motion to strike lacked merit even after
considering the challenged affidavit, this motion is denied as moot. This ruling offers no
evaluation of the merits of OAG’s claims that the affidavit was filed untimely or without proper
conferral with opposing counsel as mandated by this court’s Local Rules.
CONCLUSION
For the reasons provided herein, Legacy’s Motion for Summary Judgment on Their
Counterclaims [270] and OAG’s Motion for Summary Judgment [287] are granted. OAG’s
Motion to Strike Portions of Declarations Submitted by Plaintiff [307] is granted in part.
Plaintiff’s Motion to Strike Affidavits Filed With Reply [313] is denied. OAG’s Motion to Strike
the Affidavit of Stephen L. Brischetto [320] is denied as moot.
Legacy shall file a Cost Bill and a petition for attorney fees no later than thirty days from
the date of this Opinion and Order. Plaintiff shall file any objections no later than twenty-one
days after the Cost Bill and fee petition are docketed. Legacy may file a Reply brief in support
of its Cost Bill and fee petition within fourteen days of the filing of plaintiff’s Objections. The
court will determine the extent of Legacy’s award without further briefing or oral argument.
PAGE 29 – OPINION AND ORDER
IT IS SO ORDERED.
Dated this 6 day of June, 2008.
/s/ ANCER L. HAGGERTY
ANCER L. HAGGERTY
United States District Judge
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