Leichter v. St. Vincent’s Hosp.,

Leichter v. St. Vincent’s Hosp.,
No. 94 Civ. 7537 (DAB) (S.D.N.Y. Sept. 28, 2001)

The Southern District of New York denied a hospital summary judgment in a Title
VII discrimination suit brought by the hospital’s Department of Medicine’s Business
and Faculty Practice Manager ("the Manager"). The Manager had been
responsible for finance and billing operations, supervision of personnel, purchasing
and maintaining equipment, ordering supplies, scheduling patients, and handling
personnel issues for the faculty practice and medical service corporation. After
leaving for her six-month maternity leave, the Manager noticed ads in the newspaper
soliciting applicants for a Faculty Practice Manager at the hospital. The hospital
claimed that it had developed an expansion plan for the practice that required
additional administrators and that it had decided to employ two individuals,
rather than one, to perform the Manager’s old duties.

Upon returning from her maternity leave, the Manager claimed that her duties
were reduced to those of a receptionist. The new Faculty Practice Manager occupied
her office, used her computer and telephone, and supervised the personnel that
the Manager used to have direct authority over. After complaining to the Directors,
the Manager was notified that she would be reporting to the new Faculty Practice
Manager in the future. Eventually, the Manager asserted, she was excluded from
meetings and fingered for violations she did not commit. She was eventually
terminated.

The Southern District of New York District Court found that the Manager had
set forth a prima facie case of discrimination since she alleged, and provided
evidence supporting her allegation, that the hospital subjected her to "diminished
material responsibilities." The court likewise held that the Manager could
survive summary judgment since she had provided more than minimal evidence indicating
that the hospital’s explanation for its restructuring of her job (i.e., the
planned expansion) was a pretext. The court made similar findings in upholding
the Manager’s retaliation claims.

Lees v. Asante Health Sys.

HCQIA

Lees v. Asante Health Sys., No. CV 04-1804-MO (D. Or. Nov. 22, 2005)

A hospital board issued a Notice of Adverse Action that revoked a physician’s privileges and reappointment to the medical staff. The physician sued and the hospital filed a motion for summary judgment, claiming it was immune from damages under the Health Care Quality Improvement Act (HCQIA). The United States District Court of Oregon found the hospital was entitled to immunity for a later action based on the same hearing record, but not for the initial action effective prior to a hearing. When the initial Notice of Adverse Action was sent, the board had not acted after a reasonable effort to obtain the facts of the matter as required by HCQIA.

 

Lee v. Simon

Medical Malpractice – Statute
of Limitations

Lee v. Simon, No. 4D03-3292 (Fla. Dist. Ct. App. Oct. 27, 2004)

A Florida
district court of appeal held that the statute of limitations in medical
malpractice cases begins to toll when the plaintiff has notice of the injury
and its possible cause by medical negligence. In this case, the plaintiff claimed
that the two-year statute of limitations did not begin to run until he discovered
which doctor to sue. The court found that an extension can be granted only
where fraud or intentional concealment prevents the discovery of the injury,
not when there is a failure to discover the negligent actor. Accordingly, it
affirmed the final judgment in favor of the doctor based on the bar of the
statute of limitations.

Leitgen v. Franciscan Skemp Healthcare, Inc. (Full Text)

In th e
Un ited S tates Court o f Appea ls
F o r th e S ev en th C ircu it

No . 09-1496

CHRISTINE LEITGEN,

P la inti ff-Appe l lant ,

v .

FRANCISCAN SKEMP H EALTHCARE , INC . ,

D efendant-A pp ellee .

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-038-bbc—Barbara B. Crabb, Judge.

ARGUED SEPTEMBER 17 , 2009—D EC IDED JANUARY 13 , 2011

Be fore ROVNER, SYKES, and T INDER, C ircu it Judges .
ROVNER, C ircu it Judge . Dr . Chr is t ine Le i tgen sued
he r form er emp loyer , Franc iscan Skemp H ea l thca re
(“ the Hosp ita l” ), under T it le V II of the C iv il R igh ts A c t
o f 1964 , c la im ing as re levan t here tha t it re talia ted
aga inst her by fo rc ing her to res ign after she com –
p la ined tha t i ts com pen sa t ion schem e un law fu l ly und er-
paid phys icians based on gender . Th e H osp ita l poo ls
revenue re ce ived for ch ildb irth de liveries and red is trib –

2

No . 09-1496

u te s the rece ip t s equa l ly am ong a ll phys ic ians in the
obs te tr ic s d epar tm en t , bu t Le i tgen advoca ted for a
sys tem tha t wou ld pay phys ic ians on a p e r-de l ivery
bas is . The d is tric t cour t gran ted summ ary judgm en t for
the Hosp ita l . W e affirm .

I .
L e i tgen began wo rk ing as a phys ic ian in the Ho sp ital ’s
Departm en t of Obs tetrics and Gyneco logy in 1993 .
The num ber o f doc tors in the group fluc tu a t ed w i th
t im e , bu t when Le itgen jo ined she becam e the four th
phys ic ian and second woman in the group . O ver the
years Le itgen deve loped her prac tice and becam e on e of
th e depar tm en t ’s mos t in -dem and and h ighes t pa id
doc tors , frequen t ly perform ing more than 100 de liveries
per year . In January 1999 , the depar tm en t appo in ted her
to serv e as cha irperson , and in 2002 it reappo in ted her to
a second te rm . Le itgen stepped dow n be fore her second
term exp ired , how ever , to d ed ica te more t im e to h e r
c l in ica l prac t ice , and af ter abou t a yea r of in ter im lead er-
sh ip , th e Hosp ita l even tually h ired Dr . Edward Sandy
in Augus t 2004 to serve as the d epar tm en t ’s new cha ir .

A .
Throughou t Le itgen ’s emp loym en t , the Hosp ita l b illed
pregnan t wom en for a package of services tha t inc lud ed
both p rena ta l c a re and de livery . And a lthough the
Hosp ita l compensa ted the pa t ien t ’s pr im ary phys ic ian
d irect ly for p rov id ing p rena ta l se rv ice s , it poo led the

No . 09-1496

3

revenue genera ted from th e de livery and red is tribu ted
it equa lly among the phys ic ians in the group . B ecause
of th is po l icy of shar ing de l ivery revenue , the doc tors
the m os t de liveries— regard less o f
who perform ed
gender— rece ived less paym en t than th ey wou ld und e r
a sys tem wh ere each d oc tor was pa id pu rely for
serv ices rendered .
A t seve ra l po in ts du r ing Le itgen ’ s em p loym ent , she
and o ther fem a le phys ic ians expressed c oncern tha t ,
becau se each woman in the p rac t ice had a la rge r pat ient
base and thu s tended to per form more de liveries than
each man , the Hosp ita l’s po licy o f p ooling de livery reve-
nue m ean t tha t the wom en we re un fair ly compensa ted
for the ir b ir th ing services . Be tween 1993 and 1999 , even
though her sa lary w as one of the h ighes t in h er g rou p ,
Le itgen comp la in ed num erous tim es abou t the pay s truc –
ture to the then -cha ir of the dep a r tm en t . A t one po in t
the cha ir raised the issue w ith the Hosp ita l’s compensa –
tion comm ittee and learned that any change wou ld
have to be made w i th in the d ep ar tm en t . No change w as
m ade a fter these in it ia l inqu iries .
The fema le phys ic ians aga in raised the is sue du ring
L e i tgen ’s tenure as chair . A t that po in t it rema in ed
unc lear wh e ther a change requ ired a unan im ous vo te of
the departm en t , bu t regard less , Le i tg en d id no t try to
m od ify the sys tem becau se the fema le d oc to rs in the
group feared tha t a change wou ld adversely affect the
dep ar tm en t ’s mora le . In 2003 , one of the depar tm en t ’s
other fem ale phys icians , D r . Karen K eil , com p lained again
to Le itgen abou t the compensat ion se tup , po in t ing ou t

4

No . 09-1496

tha t becau se she and Le i tgen cu rren t ly perform ed more
de liveries than anyone e lse in the group , the sys tem
wa s mo s t de tr im ental to them . When Sandy becam e the
dep ar tm en t chair , both Keil and Leitgen info rm ed h im
that they though t th e c om pen sa tion system was un fair
to them , both as wom en and as h igh -vo lum e phys ic ians .
(The par t ies d ispu te w he ther Le itgen and K e il fram ed
the ir p rob lem w ith the com pensa t ion sys tem as im –
p l ica t ing pos s ib le gender d iscr im ina t ion , bu t for pu r-
poses of summ ary judgm en t we resolve tha t d ispu te
in Leitgen ’s favo r .)
In ligh t o f these com p lain ts , the d ep ar tm en t’s phys i-
c ians d iscussed compensa t ion schem es severa l t im es .
W h en Sandy becam e cha ir , he pu t the issue on th e
agenda for mu l tip le depar tmen t m ee tings and d is trib –
u ted s chola rly work ou tlin ing d ifferen t poten tia l mod els
o f compensa t ion . Sandy a lso expressed a concern tha t
pay ing doc tors based pure ly on
the ir num ber of
delive r ies wou ld temp t them to schedu le m ed ica lly
unnecessary induc t ions so tha t p a t ien ts wou ld g ive
b irth du ring a part icu la r sh ift . A t no po in t du ring any
o f these d iscuss ions d id Le itgen or any o ther doc to r ask
for a vo te on th e issue , and the shared -revenue arrange –
m en t rem a ined in p lace .
W hen Le i tg en ’s in tra-depar tm en ta l comp lain ts proved
unp rodu c t ive , she took her concerns d irec t ly to Tom
T igge laar , who was t he secre tary of the Hosp ita l’s com –
pensa t ion comm it tee , the Hosp ita l’s vice pres iden t o f
finance , and the ch ie f financ ia l officer . On Augus t 14 ,
2006 , Le itgen em a iled T igge laar reques ting a mee ting , and

No . 09-1496

5

T igge laar re sponded by speak ing to Sandy abou t the
issue and by reach ing ou t to other emp loyees to
reques t sta t ist ics regard ing Le itgen ’s p roduc t ion as com –
pared to other m em bers of the depar tm en t . A fter
rece iv ing de livery sta tis t ics , T iggelaar m e t w i th L e itgen
on Sep tember 5 , 2006 , to d iscuss the ma t ter . Le itgen
com p lained that the com pen sa tion system adve rsely
a ffected her pay and tha t she though t the poo ling and
sharing of d e l ivery revenues was d iscr im ina tory to
wom en . (The Hosp ita l d ispu tes tha t gende r -based d is –
cr im ina t ion w as part of th is conversa t ion , bu t aga in , w e
assum e for purposes of summ ary judgm en t tha t Le itgen
commun icated the po ten t ia l d iscrim ina tory impor t of
her con cerns .) A fter the br ie f m ee ting , ne ither par ty
fo llow ed th rough on p rom ises to resum e th eir conve rsa –
t ion . Bu t , accord ing to T igge laar , he repor ted “ the essence”
of the m eet ing to both Sandy and D iane Ho lm ay (one
o f L e i tgen ’s superv isors ) w i th in a day or two . Le itgen
herse lf a lso in form ed Sand y th a t the m ee ting had taken
p lace . A ccord ing to Le itgen , Sandy was annoyed tha t
she had taken her concerns ou ts ide o f the depar tm en t ,
and the ir re la tion sh ip sudden ly sou red a fter her mee ting
w i th T igge laar .

B .
A lthough Le itgen generated sub s tan t ia l revenue on
beha lf o f the Hosp ita l, her t ime w i th the OB /GYN depar t –
m en t wa s ma rred by con flic ts w i th pat ient s and staff .
Le i tgen takes issue w i th the way o ther s taff m em bers
pe rceived her behavior du ring these con flic ts , bu t she

6

No . 09-1496

acknow ledge s that pa tient s and nurses comp la ined abou t
her commun icat ion style . Even though we con st rue the
fac ts in Le i tgen ’s favor , we need no t ignore the und is –
pu ted fac t that th ese un fla t ter ing comp la in ts w ere mad e
by pa t ien ts and s ta ff . For exam p le , in 2001 a nu rse com –
p la ined tha t Le i tgen chas t ised her abou t her perfor-
m ance and stated tha t i t wa s “typ ical of the poor nu rs ing
care” in the d epa rtmen t . The fo llow ing year , a pat ient
exper ienc ing an ec top ic pregnancy reported tha t Le itgen
re fu sed to treat her . Later in 2002 , a d iffe ren t nu rse con –
fron ted Le itgen , te lling her that m emb ers o f th e sup –
por t s ta ff found her dem eanor condescend ing . In 2003 ,
Le itgen m e t w ith mem bers of the Ho sp ital’s m anagemen t
to d iscuss her com ba t ive commun icat ion w i th o ther
emp loyees , and af ter tha t m ee t ing one of the m anagers
recomm ended to Ho lm ay tha t Le itgen be fired because
o f h er commun icat ion prob lem s . Bu t the Hosp ita l
d id no t fire L e i tgen at tha t tim e , and the fo llow ing year
she and H o lm ay m e t w ith the sam e manager again to
d iscu ss s im ila r is sues of teamwo rk and co llabora tion .
Du r ing tha t m eet ing Ho lm ay con fron ted Le itgen abou t
new inc iden t s inv o lv ing conduc t tha t Ho lm ay con –
s idered d isrup t ive to pa t ien t sa fe ty and sta ff camarader ie .
Even after these conve rsat ion s w ith managemen t
abou t resp ec t fu l commun icat ion , nurses con t inued to
take issue w i th L e itgen ’s behavior , and they reported
the ir concerns to Bonn ie Young , the d irec tor o f the depar t –
m ent ’s nu rs ing staff . He re aga in , Le itgen d ispu te s the
way her behav ior was perce iv ed by th e sta ff invo lved ,
bu t adm its tha t she rece ived mu l tip le ora l w arn ings
between 2004 and 2006 tha t her commun icat ion w ith the

No . 09-1496

7

support sta ff was prob lem a t ic . For examp le , Le itgen
acknow ledges tha t a t least two nurses told Young that
they re fu sed to con t inue wo rk ing in the depa rtmen t
because of the way Le itgen had trea ted them .
Desp ite these con tinued commun ica tion p rob lem s , in
h er performance eva luat ion in M arch 2006 , bo th Sandy
and H o lm ay
iden t ified pos i t ive con tribu t ions
tha t
Le itgen m ad e to the departm en t . They to ld Le i tgen tha t
she had show n some imp rovem ent in he r in te ract ion s
w ith suppor t s ta ff and was an asse t to th e Hosp ita l .
Sandy a lso asked Le itgen to serve on the recru it ing com –
m it tee , and he inv ited her to rep re sen t the depa rtmen t
a t a con ference a t the end o f the year . A s o f M ar ch 20 06 ,
both H o lm ay and Sandy agreed tha t Le itgen faced no
r isk of te rm ina t ion .
Bu t fou r mon th s after th is pe rform ance evalua t ion ,
nu rses began to renew the ir comp la in ts abou t Le itgen .
In Ju ly 2006 , Young reported to Sandy tha t ano ther
nurse , W endy Ston e , had comp la in ed that L eitgen had
hum ilia ted and verba lly abused h er in fron t of a pa t ien t .
(Le itgen adm i ts to hav ing m ade comm en ts tha t up se t
Stone in fron t of a pa t ien t bu t c on tend s tha t the com –
m en ts w ere jus t ified by Stone ’s perform ance .) T he sam e
day tha t Sandy learned o f the in c iden t he wro te the first
o f a num ber o f em a ils to Ho lm ay abou t th e p oss ib ility
of d iscip lin ing Le itgen . In th is ema il , Sandy said tha t he
had to le ra ted Le itgen because she added value to the
depar tm en t , bu t he a lso comm en ted tha t h er behavior
cou ld no t “go on forever .” A f ter m ee ting w i th S tone to
d iscuss the inc iden t , Sandy sen t ano ther ema il to Ho lm ay

8

No . 09-1496

s tat ing that they needed to m ee t in p er son because , upon
re flect ion , he be lieved tha t Le itgen ’s in te rpe rsona l con –
f lic ts w ere m o re se r ious than he had prev ious ly under-
s tood . Bo th Stone ’s comp lain t and Sandy ’s dec is ion
to exp lore d isc ip l ine aga ins t L e i tgen occurred more
than a m on th be fo re Leitgen m et w ith T iggelaar in ear ly
Sep tember 2006 to comp lain abou t the compensa t ion
sys tem .
Le itgen ’s de te riora ting
re la tion sh ip w i th nu rs ing
s taff and pa tien ts con t inued throughou t Sep tember . For
examp le , wh ile Le itgen was in the m idd le of a de l ivery ,
a nu rse ca lled a sk ing for as sis tance w ith a non -u rgent
m a tter . Le itgen cou ld not take the call herself , bu t she
told the person re laying the me s sage to “go h it” the
nu rse who had reques ted assis tance . Leitgen later test i-
fied tha t she had m ean t th is comm ent face tiou s ly , bu t
sh e adm itted that som e peop le in the room apparen tly
d id no t take it as a joke . Tha t sam e m on th a pa t ien t com –
p lained tha t Le itgen had b lam ed her for the d i fficu lt ies
tha t had ar isen dur ing her em ergency Caesarean sec –
t ion . And around the sam e t im e , Young rece ived tw o
add it ional comp la in ts from staff mem be r s abou t Le itgen :
a nu rse com p la ined tha t she had been be lit t led , and a
m idw ife reported tha t she w as unab le to bu ild a collabora –
t ive prac tice w ith Le itgen . Young d id no t no t i fy L e itgen
abou t e ither of these inc iden ts or comp lain ts .
Du ring Sep tem ber (the exac t date is uncer ta in ) , wh ile
she was s till serving on the recru it ing comm i t tee , Le itgen
a lso m ade comm en ts tha t m embers of the Hosp ita l
view ed as d isloya l to its recru iting m iss ion . Leitgen to ld

No . 09-1496

9

a doc to r that the d ep ar tm en t w as rec ru iting th a t she fe lt
h er ideas were no t heard , tha t she had lit t le respec t for
th e nu rs ing s ta ff , and that she fe lt unhappy a t the H osp i-
tal . In the cou rse of tha t conve rsat ion , Le itgen to ld the
recru it tha t she wou ld no t have jo ined the Hosp i ta l
“know ing wha t she know s now” and tha t she m igh t
be gone by the tim e he arr ived . A f te r th is conversa tion
w ith Le itgen , the recru it con tac ted Sandy and expressed
a concern abou t accep t ing a pos i t ion w i th the Hosp ita l
because he feared tha t the phys ic ians were unhappy .

C .
By ear ly Sep tem ber 2006 , hav ing d ec ided the p revi-
ous m on th to d isc ip l ine Le i tgen for her abuse of s taff ,
Sandy and Ho lm ay began preparing a recomm enda t ion
tha t Le itgen be term ina ted . They m e t w ith a m em ber of
the m anagemen t comm it tee to determ ine wha t docu –
m en ts they wou ld need , and short ly a fter th is m ee t ing ,
H o lm ay asked Young to p repare a t im e line lis t ing in –
s tances where nurses or pa t ien ts had reported tha t
L e itgen w a s e ith er rude or d isrup t ive . Young p repared a
first draft of th is tim e line by Sep tem ber 8 , 2006 , based on
uno ffic ia l, pr iva te no tes tha t she kep t regard ing con f lic ts
be tween s ta ff m embers . A lthough Young m emoria lized
comp lain ts from nurses reg ard ing in terac t ions w ith
do c to rs and o th er s ta ff in th ese notes , sh e d id not , as a
genera l ru le , inve s t iga te the inc iden ts or take note o f
oppos ing v iew po in ts . Ho lm ay and Sandy had been ex –
chang ing ema ils abou t d iscip l in ing Le itgen s ince a t least
Ju ly 2006 , bu t b e fo re Sep tember 2006 no one had been

10

No . 09-1496

ga ther ing docum en ta t ion abou t Le i tgen “for the pur-
poses of
reques ting
to
In add i tion
te rm ina t ion .”
the t im e line , Sand y began exc lud ing Le itgen from con –
ve rsat ion s abou t recru iting and to ld her that she wou ld
no longe r be rep re sent ing the Ho sp ital at the upcom ing
con ference . Sandy d id no t in form L e i tgen tha t she was
in jeopardy of be ing fired .
On O c tober 31 , 2006 , Sandy form a l ly recomm ended to
the Hosp i ta l’s execu t ive comm it tee tha t it term ina te
Le itgen . He supported h is recomm enda tion w ith the
fo llow ing docum en ta tion : persona l le t ters from both
h im and Ho lm ay , Young ’s t im e l ine , and a separate
t im e line crea ted by Ho lm ay . Through these docum en ts
and the ir persona l s ta tem en ts to the comm it tee , both
Sandy and Ho lm ay expressed the ir op in ion tha t , a lthough
Le itgen was an amp ly qua lified phy s ic ian , her host ility
toward sta ff and pa t ien ts was unaccep tab le . In add it ion
to these concerns , one of the m embers of the execu t ive
comm i ttee empha sized tha t he wa s d is sa tis fied by the
nega tive comm ent s Le itgen had m ad e recent ly to the
phys ic ian the Hosp ita l had been try ing to recru i t . A fter
hea ring recomm enda tion s from Sandy and H o lm ay , the
comm it tee voted to fire Le itgen .
On Novem ber 14 , 2006 , Le itgen a t tended a “ term ina t ion
s ess ion” where m emb ers of th e ex ecu tive comm it t ee
to ld her tha t sh e cou ld either res ign or be fired . Le itgen
qu it the fo l low ing day . Ho lm ay at tended the m eet ing
w i th two o ther hosp ita l adm in is tra tors , bu t Sandy was
absen t . A t th e m ee ting , the Hosp ita l told Le i tgen tha t
it w as term ina t ing her because of the num e rou s com –

No . 09-1496

11

p lain ts tha t nurses and pa t ien ts had m ade aga ins t her
over the years . In d ischarging Le itgen , the Hosp ita l
elec ted not to fo llow its policy recomm end ing that it
no t ify emp loyees in w r i t ing of po ten t ia l d isc ip l ina ry
ac t ion s resu l t ing from d isrup t ive behav ior .
The d is t r ic t cou rt gran ted summ a ry judgm ent for the
Hosp i ta l . It byp a s sed the que s t ion whe ther Le i tgen ’s
com p la in t s regard ing the compen sa t ion sys tem were
p ro tec ted conduc t and conc luded that , even if th ey quali-
fied , no reasonab le jury cou ld f ind a causa l connec t ion
between Le itgen ’s comp la in ts and he r forced re signa t ion .
The court found i t s ign ifican t tha t L e i tgen had been
comp lain ing abou t the compensa t ion sys tem for years ,
bu t the Hosp ita l d id no t forc e her to res ign un t il a fter
a flurry of comp lain ts from nurses regard ing her conduc t .

II .
On app ea l, Le itgen re l ies exc lus ive ly on the d irec t
m e thod o f proo f to argue tha t genu ine issues of m a ter ia l
fact p revent summ a ry judgm ent fo r the Ho sp ital . To
su rv ive summ ary judgm en t on her retalia tion cla im
und er th e d irec t m e thod , L eitgen n eed ed to prov id e
su ffic ien t d irec t or c ircum s tan t ia l evidence to estab lish
(1 ) tha t she engaged in p ro tec ted conduc t , (2 ) tha t she
su ffered an adverse emp loym en t ac t ion , and (3) tha t there
w as a cau sa l connec tion be tw een the two . See Jones v .
R es-Ca re, Inc ., 613 F .3d 665 , 671 (7 th C ir . 2010) ; Casna v . C ity
o f Loves P ark , 574 F .3d 420 , 426 (7 th C ir . 2009 ) . Th ere is
no d ispu te tha t Le itgen ’s forced res igna t ion con s t i tu tes
an adve rse emp loym ent act ion , so we a re le ft w i th the

12

No . 09-1496

ques t ions whe ther Le itgen engaged in pro tec ted conduc t
and whe ther tha t conduc t was causa lly connec ted to
her forced re s igna t ion . The d is tr ic t cou rt bypa ssed the
issue o f protec ted conduc t , bu t because Le itgen focuses
on her conve rsat ion w ith T iggelaar as the app licab le
pro tec ted conduc t and tha t conversa t ion is re levan t to
the ques tion of causat ion , we beg in our ana lys is there .

A .
For Le itgen to show tha t she engaged in pro tec ted
conduc t , sh e had to prove tha t she had a reasonab le ,
good – fa ith belie f tha t the compensa t ion sys tem w as
d iscr im ina tory when she comp la ined abou t it , bu t she
need no t p rove tha t the sys tem w a s ac tua lly d iscr im –
inatory such that she wou ld have p reva iled on a c laim
of in ten tional d isc rim inat ion under T itle V II . See T a te v .
Exec . M gm t . Servs . , Inc ., 546 F .3d 528 , 532 (7 th C ir . 2008) ;
Fin e v . Ryan In t’l A irlines , 305 F .3d 746 , 752 (7 th C ir . 2002) .
Our requ ir em en t that L eitgen have a reasonab le , good –
fa ith be lie f t ha t her com p la in t invo lved gender d iscr im –
ina t ion is not onerous . See M a t tson v . Ca terp il lar, Inc ., 359
F .3d 885 , 892 (7 th C ir . 2004 ). She s imp ly had to show tha t
her be lie f tha t she wa s comp la in ing abou t un law fu l
d iscr im ina t ion was no t “ ‘comp lete ly ground less .’ ” See
F ine, 305 F .3d a t 752 (quo t ing M cDonnel l v . C isneros , 84
F .3d 256 , 259 (7 th C ir . 1996)) .
In her appella te br ief , Leitgen acknow ledges the H osp i-
ta l’s argum en t tha t she n ev er engaged in pro tec ted
conduc t bu t resp ond s tha t the Sup rem e Court ’s dec is ion
in Craw ford v . M etro . Gov ’t o f N ashv il le & D av idson Cn ty .,

No . 09-1496

13

129 S . C t . 846 (2009) , es tab l ishes tha t he r comp la in t s w ere
p ro tec ted . C raw ford add re ssed on ly whe ther coope ra t ing
w ith an em p loyer ’s in terna l invest iga t ion of d iscr im –
in a t ion was p ro tec ted conduc t , id . a t 850 -51 , and is
not d ispos itive here . Ins tead , the ques tion here
is
w he ther Le itgen reasonab ly be lieved tha t her com –
p lain ts abou t the compensa t ion sys tem amoun ted to
m ore than a gender -neu tral accu sa tion tha t the sys tem
un fa ir ly pena lized her as a h igh -volum e phys ic ian and
in stead cha rged gende r d iscr im ina t ion .
T i tle V II, of course , proh ib its d iscr im ina tory compensa –
tion based on gender , see 42 U .S .C . § 2000 e-2(a)(1) ;
Goodm an v . N at ’ l Sec . Agency , Inc ., 621 F .3d 651 , 656 (7 th
C ir . 2010) . The Hosp ita l recogn izes tha t a d ispar ity
in p ay based on gende r wou ld v io la te T it le V II, bu t
argues that Leitgen lacked an ob jec tively rea sonab le
be lie f tha t the Hosp ita l’s pay sys tem in ten t iona lly d is –
cr im ina ted aga ins t wom en . The Hosp i ta l suppor ts its
pos it ion by po in t ing ou t tha t the compensa t ion sys tem
had rema ined the sam e throughou t Le itgen ’s emp loy –
m en t , tha t L e itgen d id no t try to change the sys tem
du r ing her tenu re a s depa rtmen t cha ir , and that the
H osp i ta l jus t ified the pay schem e w ith the nond iscr im –
ina tory
in d iscourag ing e lec t ive induc t ions .
in teres t
Bu t these reasons do no t underm ine the s incerity or
reasonab leness of Le itgen ’s comp lain t tha t she be lieved
the H osp i tal’s pay schem e to be d iscrim ina tory based
on gender . Th roughou t her oppos it ion to summ ary judg –
m en t , Le itgen has repea ted ly po in ted to ev idence tha t
sh e ha s a lways fram ed her comp la in ts as a po ten tia l
is sue of gende r d iscr im ina t ion . M oreover , the ongoing

14

No . 09-1496

na ture of her comp lain ts du r ing her tenure , and her
to lerance of the sys tem wh ile she w as cha ir , do no t con –
c lus ive ly show tha t her comp lain ts abou t the pay
system were unreasonab le or ins incere . In s tead , these
fac ts sugges t tha t the im ped im en ts to chang ing the com –
pensat ion sys tem a t the Ho sp ital we re s ign ifican t and
endur ing . Thus , we cred i t Le i tgen ’s c on ten t ion for pur-
poses of summ ary
judgm en t tha t her conversa tion
w i th T igge laar w as p ro tec ted conduc t . W e no te , how ever ,
tha t Le itgen ’s focus on her conversa t ion w i th T iggelaar
as the part icu lar ins tance of protec ted conduc t tha t
caused her term ina t ion is re levan t to th e issue o f causal
connec tion .

B .
Leitgen nex t argues that she p resen ted su fficien t evi-
dence tha t the Hosp ita l’s dec is ion to fire her was
m o t iva ted by her comp la in ts abou t the compensa t ion
sys tem , part icu la rly her conve rsat ion w ith T igge laar . To
es tab lish a cau sa l connec t ion be tw een her alleged ly
p rotec ted condu ct and her forced res ignat ion , L eitg en
had to show tha t her comp lain ts were “a subs tan t ia l or
m o t iva t ing fac tor” in the H o sp i ta l ’s dec is ion to f ire her .
S ee Gates v . Ca terp i llar , Inc ., 513 F .3d 680 , 686 (7 th C ir .
2008) (c ita tion and quo ta tion om it ted ) . Le i tg en po in ts to
c ircum s tan t ia l ev idence tha t , in he r v iew , show s tha t the
H osp ita l based its de c is ion , at leas t in part , on her com –
p la in ts abou t the compensa t ion sys tem . W e add ress her
evidence and , like the d is tr ic t cou rt , conc lude tha t the
in ferences Le itgen a t t em p ts to draw from it are too a t –

No . 09-1496

15

judgm ent when con –

tenuated to su rv ive summ a ry
s ide red ind iv idua l ly or toge the r .
Le itgen relies m os t heavily on the temporal prox im ity
be tween her conversa tion w i th T igge laar and her forced
res igna t ion . A s w e have often observed , susp ic iou s
t im ing a lone is alm os t a lw ays insu ffic ien t to surv ive
summ ary judgm en t . Leonard v . E . Il l . Un iv ., 606 F .3d 428 ,
432-33 (7th C ir . 2010 ) ; Turner v . Sa loon , L td ., 595 F .3d 679 ,
687 (7 th C ir . 2010 ). Le itgen non e the less con tends tha t
th is case is the excep t ion because Sandy and Ho lm ay
b egan p repar ing for her term inat ion ju st days after h e r
m ee ting w ith T iggelaar . See Casna , 574 F .3d a t 427 (find ing
tha t susp ic ious t im ing crea ted tr iab le issue where em –
p loyee was term ina ted one day af ter pro tec ted conduc t) ;
Sp ieg la v . H u l l, 371 F .3d 928 , 943 (7 th C ir . 2004 ) (four days
later ) ; M cC lendon v . Ind iana Sugars , Inc ., 108 F .3d 789 , 796 –
97 (7 th C ir . 1997 ) (two or three days la ter ). A fter re –
v iew ing the ev iden ce , we f ind th a t Le i tgen canno t over-
com e the gen eral ru le that su sp icious t im ing a lone is
in su ffic ient to support a c la im of re ta lia tion .
F irs t , Le itgen ’s conve rsat ion w ith T igge laar w a s no t the
first tim e tha t she comp lained abou t th e compensa t ion
sys tem . To the con tra ry , she firs t pu rsued th is is sue
w ith the depar tmen t yea rs before the Hosp i ta l f ired her .
W hen an em p loyee ’s protec ted conduc t is separated by
a sign ifican t period o f t im e from the adverse emp loy –
m en t a c t ion , the prox im ity o f the inc iden ts does no t
supp or t a causa l connec tion be tw een them . See Leona rd ,
606 F .3d at 432 (find ing adve rse emp loym en t ac tion six
m on ths a fter protec ted cond uc t insu f fic ien t to es tab lish

16

No . 09-1496

re ta liat ion cla im ) ; Argyropou los v . C ity o f A lton , 539 F .3d
724 , 734 (7 th C ir . 2008) (seven weeks be tw een even ts) .
Le itgen re spond s tha t her comp la in ts we re ongoing
up un t il Sep tember 2006 , and th ere fore a large t im e gap
does no t separa te her protec ted conduc t from her d is –
cha rge . Bu t th is re spon se m is se s the po in t . Becau se she
had been comp la in ing to hosp ital execu tives abou t the
p ay sys tem for years , she mu s t offer a va lid reas on why
her conversa t ion w i th T iggelaa r wou ld sudden ly trigger
r e talia t ion . Sh e p roposes on e reason : It was th e f ir s t
t im e she ra ised her concern to anyone ou ts id e the de –
par tm en t . Bu t th is asser tion is incorrec t . Le itgen test ified
tha t , w i th the he lp o f the then -cha ir o f the depar tm en t ,
she ra ised these concerns w ith the com p ensa t ion com –
m i t tee (who are peop le ou tside the departm en t ) som et im e
be fore she herse lf becam e cha ir in 19 99 . E ven though
th e se ex tra-depar tm en ta l comp la in t s occu rred before
Sandy cam e to the Hosp i ta l, Le itgen adm it ted tha t bo th
Sandy and Ho lm ay— the execu t ives w ho recomm ended
her term ina t ion— knew of her con ce rn s abou t the com –
pensa t ion system years before the Hosp ita l forced her
to re sign . A c la im of re ta lia t ion ba sed on su sp ic iou s
t im ing dep end s on wha t the re levan t dec is ion-m akers
knew and when , see Sa las v . W is . D ep’t o f Corr ., 493 F .3d 913 ,
925 (7th C ir . 2007 ) ; Tomanov ich v . C ity o f Ind ianapo l i s , 457
F .3d 656 , 668 (7 th C ir . 2006 ), and here the evidence
shows
tha t
the re levan t dec is ion -m ak ers knew of
Le itgen ’s be lie f tha t the compensa t ion sys tem was d is-
cr im ina tory long before they dec ided to term ina te her .
Le i tgen ’s re liance on her conversa tion w i th T iggelaar
as the p ro tec ted conduc t that caused her term inat ion is

No . 09-1496

17

a lso flaw ed because Sandy and H o lm ay had begun d is –
cu ss ing ways to d iscip line Le itgen before tha t m e e t ing
ever took p lace . Sandy and Holm ay ex changed em ails
abou t how best to d iscip l ine Le i tg en a fter she be lit t led
Nurse Stone in fron t of a pa t ien t in Ju ly 2006 , weeks
before Le itgen w rote to T igge laar to reques t a mee ting
and more than a mon th be fore that m e e t ing occu rred .
W h en a re ta lia t ion c la im is based on su sp ic iou s t im ing ,
“ the orde r of even ts is even mo re importan t than the
t im e between them ; th e th eory doesn ’t work if the re-
ta lia tory ac t p recedes the pro tec ted act iv ity .” Leona rd , 606
F .3d at 432 . H ere , although Leitgen asse r t s that there is
a d ispu te of fac t , the ev id en ce is con clu sive that Sandy
and Ho lm ay had dec ided to con s ide r var ious d isc ip l ina ry
re spon se s to Le itgen ’s d is rup t ive behavior we ll be fore
she engaged in the a lleged ly p ro tec ted conduc t o f ta lk ing
to T igge laar . And Ho lm ay ’s adm iss ion tha t no one had
begun ga ther ing docum en ta t ion to support the recom –
m enda t ion
for Le itgen ’s
term ina t ion un t il Sep tem –
ber 2006 does no t refu te the und ispu ted ev id ence tha t
Sandy and Ho lm ay had a lready dec ided to pu rsue som e
type o f d iscip l ine agains t Le itgen w e ll be fore sh e ever
m e t w i th T igge laar .
Le itgen nex t argues tha t the Hosp ita l’s sudden crea t ion
o f a t im e line o f her “unaccep tab le behav ior” jus t three
days a fter her mee ting w ith T igge laar is susp ic iou s
enough to overcom e summ a ry judgm ent . A lthough a
reta lia t ion c la im can be supported by ev idence o f “sudden
d is sa tis fact ion w ith an emp loyee’s perform ance ,” pa rt icu –
lar ly when an em p loyee has a genera lly good re co rd ,
Cu lver v . Gorm an & Co ., 416 F .3d 54 0 , 5 46 (7 th C ir . 2005) ,

18

No . 09-1496

the evidence in th is case be lie s tha t cha racter izat ion .
Le itgen refers us to her “ou tstand ing” perform ance
eva luat ion in M arch 2006 , bu t in that eva luat ion , Sandy
and Ho lmay to ld her that her in t e rp ersonal re la t ion sh ip s
had m ere ly “ improved .” In any even t , Sandy and H o lm ay
d id no t sudden ly becom e d issa t isf ied w i th Le i tgen ’s
behav ior a fter she m e t w ith T iggelaar; the ev idence
shows tha t they bo th cons idered her behavior to be prob-
lem at ic befo re th e m eet ing , and they were a lready in
the m id s t of dev is ing me thod s to re spond when she
reques ted the m ee ting . The und ispu ted ev idence a lso
e stab lish es that Ho lmay had been d issa t is fied w ith
Le itgen ’s in terpersona l flaw s for a long t im e , so mu ch so
tha t she pa r t ic ipa ted in m ee t ings w i th adm in is tra tors
th ree years ear lier that had resu lted in a recomm enda –
t ion that L eitgen be fired .
Le itgen a lso fau lt s the Hosp ital for c reat ing and re ly ing
on a t im e line tha t wa s not based on p re -ex is ting docu –
m en ts and for fa iling t o c om p ly w ith its po licy recom –
m end ing w r it ten wa rn ings of unaccep table behav ior . The
Hosp ital’s po licy favors , bu t doe s not requ ire , the
w r it ten no t ic e that L eitgen c la im s sh e never rece ived . By
Le itgen ’ s ow n adm is sion , she learned of many of the
comp lain ts aga ins t her when she w as ora lly warned
abou t her behavior . And she doe s not deny tha t she
a t tend ed mu l t ip le m ee t ings w i th Hosp i ta l adm in is tra tors
where they no tified her of the ir p rob lem s w i th her
a t titude tow ard cowo rkers . G iven tha t Le itgen adm its
tha t she a t tended d iscip l inary m ee tings and received ora l
w arn ings , the Hosp ita l’s neg lec t to fo llow its recom –
m ended po licy o f docum en t ing those d iscuss ions is not
evidence of re ta lia tion .

No . 09-1496

19

F ina lly , Le itgen argues tha t the Hosp i ta l a lso reta lia ted
agains t Ke il , another fem a le phys ic ian , by forc ing her
to qu i t a fter she comp lained tha t the pay sys tem d is –
cr im ina ted aga in s t h er as a wom an . Th is trea tm en t ,
Le itgen u rge s , fu rthe r support s her c la im of re ta l ia tion .
A lthough the Hosp ita l’s d iscrim ina t ion aga in s t other
emp loyees who raised s im ilar comp lain ts wou ld be
c ircum s tan t ia l ev idence to support Le itgen ’s re ta lia t ion
c laim , see H asan v . Fo ley & Lardner LLP , 552 F .3d 5 20 , 527
(7th C ir . 2008 ) ; Troupe v . M ay D ep ’t S to res Co ., 20 F .3d 734 ,
737 (7 th C ir . 1994 ) , Le i tgen ’s re lian ce on Keil
is
unava iling because the re cord con ta ins no ev idence tha t
th e H osp ita l d id in fac t d isc rim inate aga inst Keil .
For the foregoing reasons , we there fore AFFIRM the
judgm en t of the d is tr ic t cour t .

1 -1 3 -1 1

Leflore v. Sea Breeze Nursing Home (Summary)

Leflore v. Sea Breeze Nursing Home, No. Civ. 98-1136-AH-S (S.D. Ala. May 8, 2000)

Physician brought suit against defendant nursing home and its administrator and medical director alleging racial discrimination in the termination of his patient visitation privileges. The court dismissed the physician’s claims determining that the nursing home had produced legitimate non-discriminatory reasons for the termination. Specifically, the nursing home alleged that the physician had threatened a nursing home resident, an elderly confused double amputee, by raising his cane over the patient’s head and stating “you hit me … and I will hit you back,” an allegation that the physician did not dispute.

Lee v. Trinity Lutheran Hosp.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 04-1553
___________

Sharon D. Lee, M.D., Kansas City
Family Health Care, Inc.,

Appellants,

v.

Trinity Lutheran Hospital,
Health Midwest,

Appellees.

*
*
*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
*
*
*
___________

Submitted: January 14, 2005
Filed: May 24, 2005
___________

Before MURPHY, McMILLIAN and BYE, Circuit Judges.
___________

McMILLIAN, Circuit Judge.

Dr. Sharon D. Lee appeals from a final judgment entered in the District Court
for the Western District of Missouri1 granting summary judgment in favor of Trinity
Lutheran Hospital and its sole shareholder, Health Midwest (collectively the
hospital), on her federal and state claims. For reversal, Dr. Lee argues that the district

1The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.

court erred in holding that the hospital was immune from her suit for money damages
under the Health Care Quality Improvement Act of 1986, 42 U.S.C.§§ 11101-52
(HCQIA).2 We affirm.

BACKGROUND

On May 27, 1994, Dr. Lee, a family practice physician on the hospital’s staff,
prescribed two drugs to treat an HIV patient for pneumocystis carinii pneumonia
(PCP). A nurse was concerned about the combination of the two drugs and contacted
Dr. James Wooten, the supervisor of the hospital’s pharmacy services. Dr. Wooten
researched the matter, but could find no information regarding usage of the drugs in
combination. He contacted the manufacturers of the drugs for more information. By
letters dated June 1 and June 2 of 1994, the drug manufacturers wrote to Dr. Wooten;
neither manufacturer could recommend using the drugs in combination. In the
meantime, Dr. Wooten talked to Dr. Lee, expressing his concern about the safety of
using the two drugs in combination, noting that if she proceeded to use the drugs in
combination she might expose the hospital to liability. Dr. Lee responded that she
would use the drugs in combination, even if it meant discharging the patient from the
hospital. Pursuant to hospital protocol, Dr. Wooten contacted the hospital’s Pharmacy
and Therapeutic Committee. Dr. Beth Henry, a member of the committee, agreed that
using the two drugs in combination was inappropriate and advised peer review of the
matter.

On June 1, 1994, the Peer Review on Medicine Committee (Peer Review
Committee) met to discuss Dr. Lee’s use of the drugs. Dr. Mollie O’Connor, chief of
the hospital’s infectious diseases department, presented the matter, noting that the
patient’s chart did not contain adequate documentation concerning the PCP diagnosis

2Trinity Hospital closed in 2001, thus mooting Dr. Lee’s claim for
reinstatement.

-2-

and that the two drugs were not compatible and had highly toxic effects on a patient’s
bone marrow. The Peer Review Committee voted unanimously to suspend use of the
drugs and to have Dr. Joan Akers, chair of the hospital’s family practice section, talk
to Dr. Lee. On June 2, Dr. Akers and several others physicians talked to Dr. Lee. The
Peer Review Committee met again on July 6, 1994, and recommended that a sub-
committee talk to Dr. Lee and review her patient records prospectively. The
subcommittee, composed of Drs. Akers, Daniels and Sly, met with Dr. Lee to discuss
her interactions with physicians, practice patterns and appropriate use of medications.
Dr. Akers met again with Dr. Lee to set up a protocol for pharmacy review. On
October 5, 1994, the Peer Review Committee noted that the subcommittee had
reported that Dr. Lee had a consistent problem with drug usage, including
“unapproved uses of approved drugs or toxic combinations in HIV patients,” and
approved prospective review of her charts and pharmacy review for six months.

In December 1994, Dr. Kathy Chase, director of the pharmacy, expressed
concern to Dr. Akers about Dr. Lee’s care of another patient. Dr. Akers then asked
an infectious disease specialist and an oncologist to review the patient’s chart. Both
doctors believed that Dr. Lee had not conducted an adequate work-up. On
December 7, 1994, the Peer Review Committee met and Dr. Akers discussed the
subcommittee’s chart review, noting the review had indicated that Dr. Lee had used
drugs without adequate indications, had made probable diagnoses without
corroborating studies, and inadequately documented her thought processes. To avoid
a conflict of interest, the Peer Review Committee recommended that an outside
specialist review Dr. Lee’s charts.

At a January 4, 1995, Peer Review Committee meeting, Dr. Lee read a letter
expressing her concerns with the peer review process, including that she had not been
invited to attend the meetings and that the committee had breached confidentiality.
On March 1, 1995, the Peer Review Committee met to discuss the chart of another
of Dr. Lee’s patients and asked her to supply additional documentation pertaining to

-3-

a diagnosis. On April 5, 1995, the Peer Review Committee met to review the charts
of two more of Dr. Lee’s patients. As to one of the patients, the committee noted a
possible premature death, rated the chart a 4, which meant the “clinical practice was
unexpected and unacceptable,” and sent Dr. Lee a letter of inquiry about the patient.
As to the chart of the other patient, the committee noted that Dr. Lee had already been
asked to supply documentation pertaining to diagnosis and completion of the patient’s
history and physical, but had not done so. On May 3 and June 7, 1995, the Peer
Review Committee again discussed the charts, noting that Dr. Lee’s responses to the
letters of inquiry did not address the concerns in the letters.

Pursuant to the Peer Review Committee’s recommendation, in June 1995,
Dr. Akers asked Dr. Glen Hodges, a physician at the Veteran Administration Medical
Center in Kansas City, Missouri, and chairman of the medical center’s AIDS task
force, to review the charts of five of Dr. Lee’s patients. Dr. Hodges, who had eight
years experience at the medical center reviewing charts for documentation and
medical care purposes, concluded that in four of five of the cases Dr. Lee had not met
the standard of care. Dr. Hodges found numerous documentation deficiencies and
other problems in the cases. Dr. Hodges also questioned the standard of care in the
fifth case. At a July 26, 1995, Peer Review Committee meeting, Dr. Akers presented
Dr. Hodges’s report. After the presentation, Dr. Lee joined the meeting and submitted
a letter in which she reed Dr. Hodges’s report. She also expressed her belief that
she was the subject of a “witch hunt.” Dr. Lee was excused from the meeting, and the
committee voted nine to two to suspend her clinical privileges pending her
completion of a personalized education program for physicians, which included a
psychiatric evaluation. By letter dated July 26, 1995, Dr. Akers advised Dr. Lee of
the committee’s decision to suspend her privileges and that the action was being taken
because of her sub-standard treatment of the four patients whose charts Dr. Hodges
had reviewed and her sub-standard treatment of three other patients, noting that the
sub-standard care had placed the patients in potential imminent danger.

-4-

At an August 2 meeting, the Peer Review Committee reviewed two more of
Dr. Lee’s charts, rating them a 4. On August 3, 1995, the Executive Committee of the
Medical Staff (Executive Committee) met with Dr. Lee to discuss the decision of the
Peer Review Committee to suspend her privileges. Dr. Lee stated that she had
provided her patients with the highest standard of care, but admitted that record-
keeping was a problem. She asked that an ad hoc committee be appointed to review
the charts that resulted in her suspension. Dr. Lee was excused from the meeting and
after discussion of her comments, the committee voted to uphold the suspension
pending review by an ad hoc committee’s evaluation of the seven cases cited in
Dr. Akers’s letter. However, the Executive Committee rejected the Peer Review
Committee’s requirement that Dr. Lee attend the physician education program.

By letter dated August 22, 1995, Dr. O’Connor wrote to Dr. Scott Thompson,
who was chairman of the Ad Hoc Committee, regarding Dr. Hodges’s report.
Dr. O’Connor noted agreement with many of the report’s concerns, including lack of
documentation supporting drug usage, but also noted her disagreement with several
specific items. By letter dated August 28, 1995, Dr. Thompson invited Dr. Lee to a
September 14 meeting of the committee to discuss patient care issues, which were set
forth on an enclosed document entitled “Clinical Issues.” The document listed nine
categories of issues, including inappropriate use of medications, failure to follow
established protocols for drug use, treatment based on presumptive diagnosis,
inadequate or poor documentation, failure to address abnormal patient care data, and
failure to obtain appropriate consults. Under each category were sub-categories with
specific citations to the care of seventeen of Dr. Lee’s patients. Dr. Lee attended the
September 14 meeting and discussed the clinical issues, but the specifics of each
patient were not discussed. On September 27, the Ad Hoc Committee sent a report
to the Executive Committee recommending that Dr. Lee’s staff privileges be revoked,
noting that she did not meet the hospital’s standard of care. The report further noted
that there was “no evidence of change in clinical practice from the first documented

-5-

problem from a case in June 1994 as to the two most recent cases admitted in July
1995, despite numerous interventions.”

On October 3, 1995, the Executive Committee unanimously adopted the Ad
Hoc Committee’s recommendation. By letter dated October 4, 1995, Ronald Ommen,
chief executive officer and president of the hospital, notified Dr. Lee of the Executive
Committee’s decision to revoke her privileges. Ommen stated that the decision was
based on the previously identified clinical issues and enclosed the document setting
forth the issues. Ommen advised Dr. Lee that pursuant to the hospital by-laws she
was entitled to a hearing to review the decision.

Pursuant to Dr. Lee’s request, a Fair Hearing Committee, comprised of five
physicians who had no prior involvement with the peer review process, met on May
14 and June 28, 1996. Dr. Lee appeared and was represented by counsel, who
presented the testimony of Dr. Joseph Brewer, an infectious disease specialist.
Dr. Brewer, who reviewed the charts of the patients identified on the “Clinical Issues”
document, opined that in most of the cases Dr. Lee had met the standard of care of an
infectious disease doctor who treated HIV patients. However, Dr, Brewer noted he
had concerns that Dr. Lee had abruptly discontinued use of steroids for one patient
and apparently had failed to obtain a neurological consultation for another patient.
On July 18, 1996, the Fair Hearing Committee voted to reinstate Dr. Lee’s privileges
conditioned on her attending the physician education program, receiving
psychological counseling and submitting medical records for review. By letter dated
July 22, 1996, the committee notified Dr. Lee of its decision, stating that the reasons
for the decision were her difficulty in cooperating with the hospital staff, inadequate
documentation of diagnosis, drug usage and patient care, underutilization of
consultations, and failure to meet the hospital standard of care. The letter noted that
if Dr. Lee refused to abide by the conditions, the committee would affirm the
Executive Committee’s recommendation to revoke her staff privileges. On August
6, the Executive Committee voted to unconditionally revoke Dr. Lee’s privileges,

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reasoning, among other things, that the suggested conditions would be difficult to
enforce and that the hospital could be exposed to liability for granting privileges to
Dr. Lee “when concerns of inappropriate care have been identified.”

Pursuant to the hospital by-laws, Dr. Lee appealed the Executive Committee’s
decision, and on September 18, 1996, appeared with counsel, before an Appellate
Review Committee. In response to an inquiry whether Dr. Lee would abide by the
conditions recommended by the Hearing Committee, Dr. Lee and her counsel stated
that two of the conditions concerned mental health, but asserted that there was no
evidence that Dr. Lee suffered from a mental health issue. Dr. Lee also complained
about several other of the conditions. The Appellate Review Committee unanimously
recommended to the board of directors that it unconditionally revoke Dr. Lee’s
privileges. On September 23, 1996, the board accepted the recommendation and
notified Dr. Lee of its decision by letter dated September 24, 1996.

On October 11, 1996, pursuant to HCQIA regulations, 45 C.F.R. § 60.9(a), the
hospital submitted an adverse action report to the National Practitioner Data Bank,
reporting that Dr. Lee’s clinical privileges had been revoked based on her
inappropriate use of medication, failure to follow accepted and established drug
protocols, providing treatment based on presumed diagnoses, inadequate or poor
documentation, failure to address abnormal patient care data, failure to obtain
appropriate consults, failure to work up mental status changes, failure to assume care
of hospitalized patients, and unprofessional behavior.

Dr. Lee and Greater Kansas City Family Health Care (GKC) filed suit in state
court against the hospital, alleging defamation and other state-law claims. After the
third amended complaint added a federal anti-trust claim, the hospital removed the
action to federal district court. Pursuant to the hospital’s motion, the district court
dismissed GKC as a plaintiff. The district court also denied Dr. Lee’s motion to
substitute another corporate plaintiff. On January 29, 2004, the district court granted

-7-

the hospital’s motion for summary judgment, holding that the hospital was immune
from suit for money damages under HCQIA.

DISCUSSION

The district court did not err in granting the hospital’s motion for summary
judgment on the basis of HCQIA immunity. “Congress passed the [HCQIA] to
improve the quality of medical care by encouraging physicians to identify and
discipline physicians who are incompetent or who engage in unprofessional
behavior.” Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir. 1999)
(Sugarbaker) (internal quotations omitted). “Congress believed that effective peer
review would be furthered by granting limited immunity from suits for money
damages to participants in professional peer review actions.” Id. (internal quotation
omitted). The HCQIA defines “professional review action” as:

an action or recommendation of a professional review body which is
taken or made in the conduct of professional review activity, which is
based on the competence or professional conduct of an individual
physician (which conduct affects or could affect adversely the health or
welfare of a patient or patients), and which affects (or may affect)
adversely the clinical privileges . . . of the physician.

42 U.S.C. § 11151(9).

In order to be immune from suits for money damages, a professional peer
review action must be taken:

(1) in the reasonable belief that the action was in furtherance of quality
health care,
(2) after a reasonable effort to obtain the facts of the matter,

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(3) after adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures as are fair to the
physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts
known after such reasonable effort to obtain the facts and after meeting
the requirement of paragraph (3).

Id. § 11112(a).

In addition, “[a] professional review action shall be presumed to have met the
preceding standards . . . unless the presumption is reed by a preponderance of the
evidence.” Id. “The statutory presumption included in section 11112(a) adds a rather
unconventional twist to the burden of proof in our summary judgment standard of
review, but the determination of whether a given factual dispute requires submission
to the jury must be guided by the substantive evidentiary standards that apply to the
case.” Sugarbaker, 190 F.3d at 912 (internal quotation omitted). Thus, “we must ask,
Might a reasonable jury, viewing the facts in the best light for [Dr. Lee], conclude
that [s]he has shown, by a preponderance of the evidence, that [the hospital’s] actions
are outside the scope of 1112(a)?” Id. (internal quotation omitted).

On de novo review, we conclude that Dr. Lee did not satisfy her “burden of
producing evidence that would allow a reasonable jury to conclude that [the
hospital’s] peer review disciplinary process failed to meet the standards of HCQIA.”
Id. (internal quotation omitted). In this case, in addition to being aided by the
statutory presumption, the hospital presented ample evidence that it met the statutory
criteria.

As to § 11112(a)(1) and (2), Dr. Lee argues that she reed the presumptions
that the hospital acted in a “reasonable belief that the action was in furtherance of
quality health care” and “after a reasonable effort to obtain the facts of the matter,”
because she presented evidence that the report of Dr. Hodges, the outside reviewer,
was “flawed.” Dr. Lee notes Dr. Brewer’s testimony at the hearing that in most cases

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she had met the standard of care of a specialist treating HIV patients and the
deposition testimony of Dr. Mark Jacobson, an HIV-specialist, who disagreed with
Dr. Hodges’s conclusions. Dr. Lee also notes that Dr. O’Connor disagreed with some
of the specifics in Dr. Hodges’s report, as stated in Dr. O’Connor’s memo to the Ad
Hoc Committee. Dr. Lee’s argument “miss[es] the mark.” Sugarbaker, 190 F.3d at
913. Even if Dr. Lee could show that “the [peer review actions] reached an incorrect
conclusion . . . [that] does not meet the burden of contradicting the existence of a
reasonable belief that [the hospital] w[as] furthering health care quality.” Id. at 916;
see also Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 636 n.9 (3rd Cir. 1996)
(conflicting medical opinions did not call in question whether the hospital’s reliance
on report outside reviewer was reasonable).

Dr. Lee’s argument concerning Dr. Hodges’s report, which was based on his
review of the charts of five of Dr. Lee’s patients, is also unavailing because in
suspending and revoking her privileges the hospital did not rely solely on the report,
as she suggests. Before the suspension, Dr. Wooten’s concerns about her use of two
drugs in combination were confirmed by the drugs’ manufacturers; the Peer Review
Committee had determined that Dr. Lee had problems with “unapproved uses of
approved drugs or toxic combinations [of drugs] in HIV patients;” an oncologist and
an infectious disease doctor believed that Dr. Lee had not conducted an adequate
work-up for a patient; and the Peer Review Committee noted documentation and
other problems in other patient charts. After the suspension, problems were noted in
the charts of at least ten other patients, as set forth on the “Clinical Issues” document.

Contrary to Dr. Lee’s argument,”it is clear that concerns for health care quality
remained at the forefront throughout the peer review process.” Sugarbaker, 190 F.3d
at 913. “The fact that some of the specific concerns shifted or changed over time
does not rebut the presumption” that the hospital acted in the reasonable belief that
it was furthering quality health care. Id. Nor does the fact that the Executive
Committee rejected the Hearing Committee’s recommendation to conditionally

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reinstate Dr. Lee rebut the presumption that the hospital’s decision to unconditionally
revoke her privileges was made in the reasonable belief that the decision was in
furtherance of quality health care. See id. at 913-14; see also Brader v. Allegheny
Gen. Hosp., 167 F.3d 832, 843 (3rd Cir. 1999) (Brader) (fact that “not every panel
reached the identical conclusions about the necessity of suspending [physician’s]
privileges” did not “meet [his] burden of contradicting the existence of a reasonable
belief” the hospital was “furthering health care quality”). Objectively, it was
reasonable for the Executive Committee to conclude that Dr. Lee should not have
been allowed to continue to care for patients after numerous instances of sub-standard
care had been identified.

In order to satisfy her burden of proof as to § 1112(a)(1) and (2), Dr. Lee also
asserts that Dr. O’Connor, who first presented concerns about Dr. Lee’s prescribing
drugs in an unapproved manner to the Peer Review Committee, started a “crusade”
against Dr. Lee because she was an economic competitor. The assertion is
insufficient to show that the hospital did not act in furtherance of quality health care
or after a reasonable effort to obtain the facts. Dr. Lee offers no evidence in support
of her assertion. In fact, the evidence is to the contrary. Dr. O’Connor wrote to the
Ad Hoc Committee to point out that, although she agreed with much of Dr. Hodges’s
report, she disagreed with some of it. In any event, this court has stated that “[i]n the
HCQIA immunity contest, . . . the subjective bias or bad faith motives of the peer
reviewers is irrelevant.” Sugarbaker, 190 F.3d at 914; see also Wayne v. Genesis
Med. Ctr., 140 F.3d 1145, 1149 (8th Cir. 1998) (physician’s claim that two members
of peer review committee were in direct economic competition with her was
insufficient to rebut presumption that “peer review process was fair under the
circumstances”). Contrary to Dr. Lee’s claim that the hospital “steam-rolled” the
process to “rubber-stamp” a “foregone conclusion,” Appellant’s Br. at 53-54, ample
evidence showed that the hospital made its decision after “a reasonable effort to
obtain the facts.” Before Dr. Lee’s privileges were revoked, the Peer Review
Committee and Ad Hoc Committee met numerous times, the Hearing Committee

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heard testimony for two days, and the Appellate Review Committee received
Dr. Lee’s submissions, including letters in support, and heard argument.

We also reject Dr. Lee’s argument that the hospital did not afford her “adequate
notice and hearing procedures,” as required by § 11112(a)(3). There is no question
that before the hospital revoked her privileges, Dr. Lee had ample notice and an
opportunity to be heard. Indeed, in response to the Appellate Review Committee’s
inquiry regarding procedural concerns, Dr. Lee’s counsel stated: “With regard to the
Hearing itself, we have no challenge.” Although Dr. Lee’s counsel complained about
a lack of due process up to the hearing, her complaints are without merit. Dr. Lee had
notice of the Peer Review Committee’s concerns and opportunities to present her
case. We also note that “‘under the HCQIA’s emergency provisions, summary
suspensions, ‘subject to subsequent notice and hearing or other adequate procedures,’
do not result in the loss of immunity, ‘where the failure to take such an action may
result in an imminent danger to the health of any individual.'” Sugarbaker, 190 F.3d
at 917 (quoting § 11112(c)(2)). Moreover, “[t]he [HCQIA] does not require
imminent danger to exist before a summary restraint is imposed. It only requires that
the danger may result if the restraint is not imposed.” Id. (quoting Fobbs v. Holy
Cross Health Sys. Corp., 29 F.3d 1439, 1443 (9th Cir. 1994)).

Because “analysis under § 11112(a)(4) closely tracks . . . analysis under
§ 11112(a)(1),” id. at 916, as to this section, Dr. Lee reiterates arguments we have
already rejected. In addition, she invites this court to review excerpts of charts of
thirteen of her patients, asserting if we did so we would conclude that she “provided
quality medical care to critically ill and dying patients of whom she would not let go
without extraordinary, heroic effort.” Appellant’s Br. at 55. We cannot do so. “[T]he
role of federal courts on review of [peer review] actions is not to substitute our
judgment for that of the hospital’s governing board or to reweigh the evidence
regarding the . . . termination of medical staff privileges.” Bryan v. James E. Holmes
Regional Med Ctr., 33 F.3d 1318, 1337 (11th Cir. 1994) (internal quotation omitted).

-12-

Indeed, “the intent of [the HCQIA] was not to disturb, but to reinforce, the preexisting
reluctance of courts to substitute their judgment on the merits for that of health care
professionals and of the governing bodies of hospitals in an area within their
expertise.” Id. (internal quotation omitted).

Nor can we be influenced by Dr. Lee’s assertion that in treating end-stage HIV
patients in 1994 and 1995 she employed cutting-edge treatments that later became the
standard of care. Even if true, in determining whether the hospital acted in a
reasonable belief that it was furthering quality health care, our focus is on whether
“the reviewers, with the information available to them at the time of professional
review action, would reasonably have concluded that their actions would restrict
incompetent behavior or would protect patients.” Brader, 167 F.3d at 840 (quoting
H.R. Rep., No. 903, 99th Cong., 2d Sess. 10 (1986)) (emphasis added). In so doing,
and after consideration of Dr. Lee’s other arguments concerning the statutory criteria,
we conclude that she failed to present sufficient evidence to show the hospital did not
act “in the reasonable belief that [its actions] w[ere] warranted by the facts known
after such reasonable effort to obtain the facts and after meeting the requirement of
[§ 11112(a)](3).” 42 U.S.C. § 11112(a)(4).

Because we hold that the district court did not err in granting the hospital
immunity under HCQIA on her claims seeking money damages, we do not address
Dr. Lee’s argument that the district court abused its discretion in denying her motion
to amend her complaint to add a corporate plaintiff.

Accordingly, we affirm the judgment of the district court.

______________________________

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Lemons v. Board of County Commissioners,

DJW/mat

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

DAVID LEMONS, et al.,	)
	)
Plaintiffs,	)
	)
v.	)	No. 00-2292-KHV
	)
BOARD OF COUNTY COMMISSIONERS OF	)
THE COUNTY OF BROWN, et al.,	)
	)
Defendants.	)

__________________________________________

ELIZABETH LEMMONS, et al., )

)

Plaintiffs, )

)

v. ) No. 00-2297-CM

)

BOARD OF COUNTY COMMISSIONERS OF )

THE COUNTY OF BROWN, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Pending before the Court is Plaintiffs’ Motion to Amend First Amended Complaint (doc. 107
in Case No. 00-2292-KHV) and Plaintiffs’ Motion to Amend Complaint (doc. 23 in Case No. 00-2297-CM). In support of their Motions, Plaintiffs state that during the discovery process, new factual
information relating to the claims previously made was discovered; accordingly, Plaintiffs seek to amend
the Complaint to “more accurately set forth the factual and legal basis for Plaintiffs’ claims and to
accurately name the parties who are the real parties in interest.”

Defendants Northeast Kansas Center for Health and Wellness, Inc. (“Hospital”), Linda Becker,
Kenneth Robinson and Dustin Williams (collectively “Hospital Defendants”) oppose Plaintiffs’ Motions
to the extent Plaintiff Ryan Graves seeks to add a claim alleging the Hospital violated the Emergency
Medical Treatment and Active Labor Act , 42 U.S.C. 1395dd(a)-(c) (“EMTALA”). More specifically,
the Hospital Defendants assert the amendment simply restates Plaintiff Graves’ state law negligence
claim and fails to state a federal cause of action. The Hospital Defendants further state that Plaintiff
Graves seeks to add this claim only to secure supplemental jurisdiction in this Court for his state law
claims of medical negligence.

Defendants Board of Commissioners of Brown County, Lamar Shoemaker, Michael Gruber,
and Doug Bramer (collectively “County Defendants”) oppose Plaintiffs’ Motions to the extent the
personal representatives of the estates of Dana Christianson and Brendon Tucker are added as Plaintiffs
to the Complaint. In support of their position, County Defendants state that (1) at the time the
Complaint was filed, these two estates were not entities with the capacity to sue or be sued; and (2) an
amendment to add these administrators would be futile, as Dana Christianson’s and Brendon Tucker’s
claims would then be time barred by the applicable statute of limitations.

Finally, Defendant Edgardo Francisco, M.D. (“Defendant Francisco”) opposes Plaintiffs’ Motion
on the grounds that he was not properly named in the First Amended Complaint and that an amendment
to correct the mistake would be futile, as any claims against him would be time barred by the applicable
statute of limitations.

Upon consideration of the arguments presented by counsel, and for the reasons set forth below,
the Court will grant Plaintiffs’ Motions.

Discussion

Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the pleadings, before
a responsive pleading is served or within twenty days after service. Subsequent amendments are allowed
by leave of court or by written consent of an adverse party. Fed. R. Civ. P. 15(a). Subsequent
amendments should be “freely given when justice so requires.” Woolsey v. Marion Labs., Inc., 934 F.2d
1452, 1462 (10th Cir.1991). “The decision to grant leave to amend a complaint, after the permissive
period, is within the trial court’s discretion, Fed. R. Civ. P. 15(a), and will not be disturbed absent an
abuse of that discretion.” Id. The district court should deny leave to amend only when it finds “undue
delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir.1993).

A court may deny a motion to amend as futile if the proposed amendment would not withstand
a motion to dismiss or otherwise fails to state a claim. Lyle v. Commodity Credit Corp., 898 F. Supp.
808, 810 (D. Kan.1995) (citing Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir.1992)). Thus, the Court
analyzes Plaintiffs’ proposed amendment as if it were before the Court on a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).

Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that
a plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302,
1304 (10th Cir.1998). The Court accepts as true all well-pleaded facts, as distinguished from conclusory
allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor
of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.), cert. denied, 525 U.S. 881
(1998). The issue in resolving a motion such as this is not whether a plaintiff will ultimately prevail, but
whether he or she is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Patrick v. City of
Overland Park, Kansas, 937 F. Supp. 1491 (D. Kan. 1996).

Plaintiffs’ EMTALA Claim

Congress enacted EMTALA in 1986 to address the problem of “dumping” patients in need of
medical care but without health insurance. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796-97 (10th
Cir. 2001) (citing Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th
Cir.1991); Stevison v. Enid Health Sys., 920 F.2d 710, 713 (10th Cir.1990)). A hospital governed by
EMTALA is faced with two basic requirements. First, “the hospital must provide for an appropriate
medical screening . . . to determine whether or not an emergency medical condition . . . exists.”
42 U.S.C. ? 1395dd(a). Plaintiffs here do not allege in their proposed amendment that the Hospital’s
initial medical screening was inappropriate.

When a hospital determines after the initial screening that an emergency medical condition does
indeed exist, EMTALA further requires the hospital to either

• provide further medical examination and treatment as may be required to stabilize the
  medical condition, at least to the extent possible given the staff and facilities available
  at the hospital; or


• transfer the individual to another medical facility if all of the following conditions are
  met:

• the individual, or a responsible person acting on his or her behalf, after being
  informed of the hospital’s EMTALA obligations, must request a transfer in
  writing or a physician must determine that the risks of transfer are outweighed
  by the medical benefits reasonably expected to be provided at another medical
  facility, and this determination must be documented in a signed certification;


• the transferring hospital must provide medical treatment, within its capacity,
  which minimizes the risks to the individual’s health;


• the receiving facility must have available space and qualified personnel for the
  treatment of the individual and has agreed to accept transfer of the individual and
  to provide appropriate medical treatment;


• the transferring hospital must send to the receiving facility available medical
  records related to the emergency condition; and


• the transfer must be effected through qualified personnel and transportation
  equipment.

42 U.S.C. ? 1395dd(b)(c).

Relevant to the allegations proposed by Plaintiffs in the Amended Complaints, section (c)(2)(A)
requires the transferring hospital to provide medical treatment, within its capacity, which minimizes the
risks to the individual’s health before it transfers the individual. In an opinion recently issued by the
Tenth Circuit Court of Appeals regarding whether a hospital sufficiently satisfied its obligation to
provide, to the extent possible, medical treatment necessary to minimize the risk to an individual’s health
prior to transfer, the Court stated such sufficiency should be measured by the hospital’s own standard
practices. Ingram v. Muskogee Regional Medical Ctr., 235 F.3d 550, 551-52 (10th Cir. 2000) (citing
Repp v. Andarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994)). ⁽¹⁾ Thus, in order to state a cause of
action for inappropriate transfer of an individual by a hospital in violation of 42 U.S.C.
? 1395dd(c)(2)(A), a plaintiff must adequately allege that the hospital violated an existing hospital
procedure or requirement in administering the medical treatment necessary to minimize the risk to such
individual prior to transfer. Id.; see, also, Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796-97 (10th
Cir. 2001) (“[a] court should ask only whether the hospital adhered to its own procedures, not whether
the procedures were adequate if followed.”).

Plaintiffs here seek to allege in their Second Amended Complaint “[t]hat defendant hospital
violated 42 U.S.C. ? 1395dd(a)-(c) by not stabilizing Ryan James Graves within the capabilities and
facilities available at the hospital before transferring” him. Plaintiffs’ Amended Complaint at ? 183,
page 47, attached as Exhibit A to Plaintiffs’ Motion to Amend First Amended Complaint (doc. 107).
Plaintiffs further seek to allege that “Defendant hospital failed to provide medical treatment and
minimize the risks as measured by the hospitals own standard practices and policies” prior to transferring
Ryan James Graves. Id. at ? 184(a). Viewing all reasonable inferences in Plaintiffs’ favor, and bearing
in mind that Plaintiffs seek only the privilege of making these allegations, the Court cannot say that it
appears beyond a doubt that Plaintiffs can prove no set of facts in support of their allegations that the
Hospital violated the EMTALA. Thus, the Court finds Plaintiffs are entitled to offer evidence to
support such allegations and the Motions to Amend will be granted as to this issue. ⁽²⁾

Adding the Personal Representatives of the Estates of Dana Christianson and
Brendon Tucker as Plaintiffs

The circumstances giving rise to both of the above-referenced lawsuits occurred on July 4, 1998.
The caption of Plaintiffs’ initial Complaint in Case No. 00-2292-KHV (filed on June 29, 2000) includes
as Plaintiffs “Brenden Tucker, by and through Michael Tucker, heir and parent” and “The heirs of Dana
Christianson (Ryan James Graves) by and through his grandmother guardian Elizabeth Lemons . . . and
for Dana Christianson estate [sic].” The caption of Plaintiffs’ initial Complaint in Case No. 00-2297-CM
(filed on July 3, 2000) includes as Plaintiffs “The heirs of Dana Christianson (Ryan James Graves) by
and through his grandmother guardian Elizabeth Lemmons . . . and for Dana Christanson [sic] estate.”
On August 3, 2000, Ryan Hodge was appointed as Administrator of both Brenden Tucker’s and Dana
Christianson’s estates, more than two years after the circumstances giving rise to both of these lawsuits.

The County Defendants oppose Plaintiffs’ Motions to Amend to the extent the personal
representative of the estate of Dana Christianson and the personal representative of the estate of
Brendon Tucker are added as Plaintiffs to the Complaint. The County Defendants argue that the
currently pending survival claims brought on behalf of Dana Christianson and Brenden Tucker fail to
state a cause of action under Kansas law because they are brought by the heirs of decedents Brenden
Tucker and Dana Christianson instead of the personal representatives of the decedents’ estates as
required by Kansas law. The County Defendants further argue that new survival claims brought by the
estates of Brenden Tucker and Dana Christianson would be time-barred, because they were not
commenced within the allegedly applicable two-year statute of limitations. ⁽³⁾

Rule 17(a) of the Federal Rules of Civil Procedure requires that “(e)very action shall be
prosecuted in the name of the real party in interest.” Moreover, Kansas law requires that a survival
action must be maintained by the personal representative of the decedent and cannot be prosecuted by
a decedent’s heirs. Cory v. Troth, 170 Kan. 50, 52-53, 223 P.2d 1008 (1950); Howe v. Mohl, 168 Kan.
445, 449, 214 P.2d 298 (1950). Thus, in order for the survival actions here to continue, the pleadings
must be amended to name as a plaintiff the administrator of Brenden Tucker’s and Dana Christianson’s
estates.

Rule 15(a) of the Federal Rules of Civil Procedure directs that such leave to amend “be freely
given when justice so requires.” The district court should deny leave to amend only when it finds
“undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc.,
3 F.3d 1357, 1365 (10th Cir.1993). Assuming the Court grants Plaintiffs leave to amend, the question
presented is whether the amendments proposed by Plaintiffs are futile or whether they will relate back
to the date of the original pleading, thus bringing the survival action within the allegedly applicable
two-year statute of limitations.

With regard to this issue, the Federal Rules of Civil Procedure provide that “[a]n amendment
of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be
set forth in the original pleading.” Fed. R. Civ. P. 15(c). “It is a matter committed to the district court’s
sound discretion to decide whether a new claim arises out of the same transaction or occurrence.”
Kidwell v. Board of County Comm’rs of Shawnee County, 40 F. Supp.2d 1201, 1217 (D. Kan. 1998)
(citing Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 738 (2nd Cir.1998)).

The goal of Fed. R. Civ. P. 15(c) is “to provide the opportunity for a claim to be tried on its
merits, rather than being dismissed on procedural technicalities.” 3 Moore’s Federal Practice 2d Ed.,
? 15.19[3][a] at 15-84. This goal is accomplished “if the original complaint gives the defendant fair
notice that litigation is arising out of a specific factual situation.” Spillman v. Carter, 918 F. Supp. 336,
340 (D. Kan.1996). If the original complaint fairly discloses the general fact situation out of which the
new claims arise, a defendant is not deprived of the protection of the statute of limitations. Id.
Therefore, “[t]he linchpin to Rule 15(c) is notice before the limitations period expires.” Kidwell v.
Board of County Comm’rs of Shawnee County, 40 F.Supp.2d at 1217 (quoting March v. Coleman Co.,
774 F. Supp. 608, 612 (D. Kan.1991)).

Without a doubt, the survival claims brought by the estates of Brenden Tucker and Dana
Christianson against the defendants in the second amended complaints arise out of the same occurrence
complained of in the original complaints. Moreover, the Court finds that all Defendants had timely
constructive notice of these claims before the limitation period expired. Accordingly, the Court hereby
exercises its discretion pursuant to Rules 15(c) and 17(a) of the Federal Rules of Civil Procedure to
permit Plaintiffs to amend the capacity in which Brenden Tucker and Dana Christianson bring their
causes of action and to further permit such amendments to relate back to the date of the filing of the
original Complaints. See Shinkle v. Union City Body Co., 94 F.R.D. 631 (Kan. 1982) (under
circumstances similar to those presented here, court held amended complaint relates back to date of
filing of original complaint because no change in parties and all parties on notice of facts out of which
claim arose) ⁽⁴⁾ (citing Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962); Hunt v.
Pennsylvania Central Transportation Co., 414 F. Supp. 1157 (W.D. Pa.1976); Fierstein v. Piper
Aircraft Corp., 79 F. Supp. 217 (M.D. Pa.1948); Owen v. Paramount Productions, 41 F. Supp. 557
(S.D. Cal.1941)). See, also, Missouri, Kansas & Texas Railway Co. v. Wulf, 226 U.S. 570 (1913)
(holding second amended complaint related back to filing of original complaint because, “aside from the
capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the
original and amended petitions.”); Russell v. New Amsterdam Cas. Co., 303 F.2d 674 (8th Cir. 1962)
(“where an amendment to a complaint in an action for wrongful death introduced no new or different
cause of action and does not set up any different state of facts as the ground action, it relates back tot
he beginning of the suit and the statute of limitation is arrested at that point.“)

Amending the Complaint to Properly Identify Defendant Edgardo C. Francisco

Plaintiffs seek to amend their First Amended Complaint in order to properly identify Dr. Edgardo
C. Francisco as the correct defendant. Defendant Francisco opposes this amendment on the grounds
that he was not properly named in the First Amended Complaint and that an amendment to correct the
mistake would be futile, as any claims against him would be time barred by the applicable statute of
limitations.

In the caption of Plaintiffs’ initial Complaint in Case No. 00-2292-KHV (filed on June 29, 2000),
Defendant Francisco was incorrectly identified as “Dr. Michael Filipinas Francisco.” Defendant
Francisco was served with Summons and Complaint in this action on November 3, 2000 and on
December 5, 2000, Defendant Francisco filed an Answer to the First Amended Complaint. In his
Answer, Defendant Francisco denies he is “Michael Filipinas Francisco” and further denies knowing any
such person. Defendant Francisco admits in his Answer, however, that he “is a licensed health care
provider” and that he did countersign the emergency room records at issue, although he did so “as a
matter of hospital protocol, practice and procedure” and that such signing occurred “after Ryan Graves
left the facility by helicopter.”

As noted in the preceding section, the Federal Rules of Civil Procedure provide that “[a]n
amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading.” Fed. R. Civ. P. 15(c). The amendment properly
relates back “if the original complaint gives the defendant fair notice that litigation is arising out of a
specific factual situation.” Spillman v. Carter, 918 F. Supp. 336, 340 (D. Kan.1996). If the original
complaint fairly discloses the general fact situation out of which the new claims arise, a defendant is not
deprived of the protection of the statute of limitations. Id.

Throughout this litigation, Defendant Francisco has acted and responded as if he were properly
named as a Defendant in this action. Thus, Defendant Francisco cannot genuinely assert prejudice or
surprise with respect to the claims asserted against him now that Plaintiffs have moved to amend their
Complaint to identify him by his proper first name. Accordingly, Plaintiffs’ Motion to Amend will be
granted with respect to this issue as well.

Conclusion

Viewing all reasonable inferences in Plaintiffs’ favor, and bearing in mind that Plaintiffs seek only
the privilege of making the allegations proposed in the Amended Complaint, Plaintiffs Motions to
Amend are hereby granted and such amendments shall relate back to the date of the filing of the original
Complaints. Pursuant to D.Kan. Rule 15.1, the clerk shall file Plaintiffs’ Amended Complaints (attached
to the pending motions), and they shall be deemed filed as of the date this Order is filed. Defendants
shall answer the amended Complaints in accordance with local rule.

IT IS SO ORDERED.

Dated in Kansas City, Kansas on this ______ day of January, 2002.

_____________________________________

David J. Waxse

United States Magistrate Judge

cc: All counsel and pro se parties

1. Based upon pre-existing procedures adopted and employed by the hospital at issue, the Repp
court held EMTALA’s screening requirement is violated “when [the hospital] does not follow its own
standard procedures.” Repp v. Andarko Mun. Hosp., 43 F.3d at 522. In so holding, the Repp court
noted that EMTALA was not enacted as a federal medical malpractice statute and was not intended to
ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the
same level of treatment regularly provided to patients in similar medical circumstances. Id.

2. Given Plaintiffs’ Motions to Amend were filed in a timely manner pursuant to the March 28,
2001 Scheduling Order issued by the Court, the Court is unable to find Plaintiffs’ Motions were dilatory
or motivated by bad faith.

3. Defendants also rely on K.S.A. 60-515 to argue that these claims are time-barred. This statute
provides that “if any person [less than 18 years of age] entitled to bring an action dies . . . and no
determination is made of the cause of action accrued to the deceased, any person entitled to claim from,
by or under the deceased, may commence such action within one year after the deceased’s death.”
K.S.A. 60-515(b). Defendants’ reliance on this statute, however, is misplaced. The purpose of K.S.A.
60-515 is to mitigate the difficulties of preparing and maintaining a civil suit while the plaintiff is under
a legal disability. Biritz v. Williams, 262 Kan. 769, 774, 942 P.2d 25, 29 (Kan. 1997). The statute does
not suspend, interrupt, or extend the statute of limitations, but operates merely to toll the statute of
limitations under stated circumstances. Id.

4. As the court in Shinkle noted, “such a result is consistent with the decision in Metropolitan
Paving Co. v. International Union of Operating Engineers, 439 F.2d 300, 306 (10th Cir. 1971), in
which the Tenth Circuit stated: ‘The fact that an applicable statue of limitations may have run before
the real parties were substituted is not significant where the change is merely formal and in no way alters
the known facts and issues on which the action is based.'” Id. “This result also agrees with the Tenth
Circuit’s interpretation of Kansas Supreme Court cases that ‘where a cause of action is instituted by one
not authorized to maintain it and thereafter the proper party plaintiff is substituted in his place, the
substitution relates back to the commencement of the action and the statute of limitations stops running
as to the substituted plaintiff from the filing of the original action rather than the date of the
substitution.'” Id. (citing Montgomery Ward & Co. v. Callahan, 127 F.2d 32, 36-37 (10th Cir. 1942)).

Lemons v. Board of County Commissioners,

Lemons v. Board of County Commissioners,

No. 00-2292-KHV (D. Kan. Aug. 8, 2001)

The District Court of Kansas permitted the guardian of a surviving patient to amend
a negligence complaint to add a claim that the hospital defendant had violated
EMTALA by failing to provide stabilizing medical treatment prior to transferring
the surviving patient. The complaint was found to have adequately stated that
the hospital had failed to follow its own standard practices and policies relative
to stabilization, as is required to assert a private EMTALA claim.

Lee v. Trinity Lutheran Hosp.

HCQIA

Lee v. Trinity Lutheran Hosp.,
No. 00-0716-CV-W-HFS (W.D. Mo. Jan. 29, 2004)

The United States District Court for the Western District
of Missouri granted summary judgment in favor of a hospital that revoked the
privileges of one of its AIDS specialists, holding that the hospital was immune
under the Health Care Quality Improvement Act. The court noted that the testimony
of the physician’s expert witnesses, who opined that the physician acted competently,
was irrelevant since the hospital had collected voluminous information supporting
its quality of care concerns before taking action on the physician’s privileges.

 

 

Lenker v. Methodist Hospital

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-4183
STEPHEN P. LENKER,
Plaintiff-Appellant,
v.
METHODIST HOSPITAL,
Defendant-Appellee.
Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 95 C 377–Theresa L. Springmann, Magistrate Judge. 
Argued September 23, 1999–Decided April 26, 2000
  Before POSNER, Chief Judge, MANION and ROVNER,

Circuit Judges.
  ROVNER, Circuit Judge.  Stephen Lenker sued his

employer, Methodist Hospital, under the Americans

With Disabilities Act, for failing to accommodate

him. Lenker, a nurse, suffered from multiple

sclerosis ("MS"). After his doctor issued a

lifting restriction for him, the hospital removed

him from his job as a nurse because the hospital

considered lifting to be an essential part of the

job that could not be reasonably accommodated. A

jury found in favor of the hospital and Lenker

appeals. We affirm.
I.
  Lenker was diagnosed with MS while he was still

in nursing school, and Methodist Hospital knew he

had the condition when it hired him. At the time

of his hire, Lenker’s MS was in remission, he had

no restrictions on lifting and he was able to

fully perform all of his nursing duties. One of

Methodist’s job requirements for a staff nurse is

the ability "to manage, with assistance as

appropriate, approximately 200 lbs. weight." A

nurse’s duties include turning patients in bed,

assisting patients to and from the bathroom,

helping patients walk and assisting patients who

unexpectedly fall. Sometimes other staff members

are available to assist a nurse with lifting, and

sometimes because of staffing shortages or

because an emergency arises, a nurse may have to

engage in physically strenuous lifting without

assistance. 
  None of this was a problem for Lenker until he

had been on the job for approximately six months.

At that time, he suffered an MS episode that

resulted in a 10 day hospitalization. When he was

released, his doctor indicated that Lenker should

not engage in any lifting. Methodist’s policy at

the time was to require any employee who was sick

on the job or who missed more than three days of

work to obtain clearance from its Occupational

Health Department before being allowed to return

to work. Additionally, the policy stated that if

the employee was released to work by the

Occupational Health Department with restrictions,

the employee’s manager was to determine whether

the employee could return to work with that

restriction. As a result of the policy, a

physician from the Occupational Health Department

examined Lenker following his hospitalization.

That doctor concurred with the judgment of

Lenker’s personal physician that Lenker should

not engage in lifting. Thus, Lenker’s work

release contained a "no lifting" restriction.

Lenker’s manager subsequently determined that

Lenker could not return to work as a nurse with

that restriction because lifting was a necessary

part of the job. 
  Although the hospital’s policy required twelve

months of service before an employee was eligible

for a leave of absence, Methodist granted Lenker

a leave to give him time to have his lifting

restriction reevaluated and possibly removed. The

hospital also gave Lenker access to its job

posting board, which was not available to non-

employees. Lenker’s manager informed him of his

layoff status and these benefits by telephone,

and the two did not talk again about Lenker’s

employment status. During Lenker’s layoff, his

physical condition worsened, and after a year on

layoff status, the hospital terminated Lenker’s

employment. Lenker sued Methodist, claiming

violation of the Americans With Disabilities Act,

and violation of state defamation law. The

district court granted summary judgment on the

state law defamation claim, and the ADA claim

went to trial before a jury. The jury found in

favor of Methodist Hospital. Lenker appeals.
II.
  Lenker claims the district court erred when it

refused to grant his Rule 50 motion for judgment

as a matter of law, because Methodist failed to

show at trial that it engaged in an interactive

process to accommodate Lenker’s disability.

Lenker also protests the district court’s refusal

to give three of his proposed jury instructions.

The district court declined to give Lenker’s

proposed instruction regarding the interactive

process in which an employer must engage to

determine what accommodations might exist for the

disabled employee, instead giving instructions

proposed by Methodist Hospital on this same

subject. The court also declined to instruct the

jury that Methodist’s "100% healed" policy

violated the ADA, or that the jury could consider

whether Methodist’s stated reason for terminating

Lenker was pretextual. We review the denial of a

motion for judgment as a matter of law de novo,

determining whether the evidence presented and

the reasonable inferences drawn from the evidence

are sufficient to support the verdict when viewed

in a light most favorable to the party against

whom the motion is directed. Emmel v. Coca-Cola

Bottling Co. of Chicago, 95 F.3d 627, 629-30 (7th

Cir. 1996). We review the jury instructions to

determine if, as a whole, they were sufficient to

inform the jury correctly of the applicable law,

reversing only if a particular instruction

misguides the jury to a party’s prejudice. Maltby

v. Winston, 36 F.3d 548, 560 (7th Cir. 1994),

cert. denied, 515 U.S. 1141 (1995).
A.
  Lenker believes he is entitled to judgment as a

matter of law because the hospital engaged in a

directed rather than an interactive process with

him once it learned of his disability. Lenker

contends that Methodist failed to establish that

lifting was an essential element of a nurse’s

job, and that he could not be accommodated. He

protests Methodist’s failure to assess the job of

nurse and his abilities with an eye toward

accommodating him. He maintains that uncontested

evidence supports his view that the hospital

refused to even consider an accommodation.

Following a trial, we are limited in our review

to assessing whether no rational jury could have

found for Methodist. Emmel, 95 F.3d at 630. 
  In determining whether a particular job function

is essential, we are guided by the federal

regulations:
Evidence of whether a particular function is

essential includes, but is not limited to:
(i)  The employer’s judgment as to which

functions are essential;
(ii)  Written job descriptions prepared before

advertising or interviewing applicants for the

job;
(iii)  The amount of time spent on the job

performing the function;
(iv)  The consequences of not requiring the

incumbent to perform the function;
(v)  The terms of a collective bargaining

agreement;
(vi)  The work experience of past incumbent in

the job; and/or
(vii)  The current work experience of incumbents

in similar jobs.
See 29 C.F.R. sec. 1630.2(n)(3). See also R. 67,

Court’s Instruction No. 16 (detailing these

factors for the jury). The jury heard evidence

that Methodist considered lifting an essential

function of the job, that it was part of the job

description for staff nurses, that at times,

staff shortages or emergencies left a nurse

without assistance in a lifting task, and that

the need for lifting was not always predictable

because patients sometimes fell or needed

assistance unexpectedly. Lenker protests that

lifting comprised at most two percent of a

nurse’s day, that devices were available to

assist in lifting patients, and that all nurses

were allowed to use their judgment to determine

whether they needed assistance in a particular

situation and call for other staff to help. The

jury was free to find, however, that those times

of the work day when lifting was required were

essential to the nurse’s job, that a device to

assist in lifting a patient out of bed would not

help a patient walk down the hall or to the

bathroom, and that at times other staff would not

be available to assist. In short, based on

evidence presented by the hospital, the jury was

certainly entitled to find that lifting was an

essential function of a nurse’s job.
  The remaining question is whether Lenker could

be accommodated, and whether the hospital engaged

in an interactive process with him to determine

appropriate accommodations. The hospital offered

evidence that Lenker could not always be assisted

in carrying out this function because of staff

shortages and emergencies. Thus, not only was the

lifting function essential, but Lenker could not

be accommodated as a nurse. This did not relieve

the hospital of its duty to accommodate Lenker in

other ways if possible./1 Because Lenker could

not be accommodated as a nurse, the hospital made

its internal job postings available to him so

that he could apply for other jobs in the

hospital more suited to his abilities. See

Hendricks-Robinson v. Excel Corp., 154 F.3d 685,

694 (7th Cir. 1998) (reasonable accommodation

includes reassignment to a vacant position for

which the employee is qualified); Dalton v.

Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-

78 (7th Cir. 1998) (same). Lenker testified that

he would have taken any job, but the hospital

claimed Lenker refused to take any non-nursing

jobs. For whatever reason, Lenker did not obtain

another permanent position at the hospital.

Whether the hospital tried to reasonably

accommodate Lenker with these steps, and whether

Lenker cooperated in the hospital’s attempts to

accommodate him are classic fact questions for

the jury to resolve. The jury appears to have

resolved the issues in the hospital’s favor. We

will not supplant our view of the evidence for

that of a jury in its verdict. Emmel, 95 F.3d at

630 (quoting Hybert v. Hearst Corp., 900 F.2d

1050, 1054 (7th Cir. 1990)). We therefore affirm

the district court’s denial of Lenker’s motion

for judgment as a matter of law.
B.
  The district court rejected Lenker’s proposed

jury instruction regarding the interactive

process. The controversial part of Lenker’s

instruction states that "if you find the

interactive process was one directed by the

defendant and not truly interactive, then this is

a violation of the ADA on the part of the

defendant." Lenker relied on Excel in support of

this instruction. In Excel, the court found that

an employer’s procedure for accommodation was

directive as opposed to interactive where, in

part, the plant nurse unilaterally determined

that employees could not be accommodated in

certain positions. 154 F.3d at 699. Here, the

court declined the instruction because other

instructions already accurately and fully advised

the jury as to what constitutes an interactive

process: 
With regard to this court’s other instructions

that fully advise the jury as to what constitutes

an interactive review process, the court believes

that the language contained in its instructions

does properly reflect the language in the

statute; that the statute specifically does not

reference in this context a directive process as

opposed to an interactive process as being a

violation forbidden. For that reason, the court

declined to use the plaintiff’s tendered

Instruction 17.
Tr. at 784. Although this explanation is somewhat

cryptic, we believe the court was declining the

instruction because the statute says nothing

about a directed versus an interactive process,

and other instructions adequately addressed the

requirement for an interactive process. 
  Our review of the other instructions reveals

that they did, in fact, adequately address the

interactive process. The remaining instructions

informed the jury of the employer’s duty to

analyze the job involved, determine its purpose

and essential functions, as well as the duty to

consult with the employee to determine the

precise job-related limitations imposed by the

disability and how those limitations could be

overcome with a reasonable accommodation. The

court also instructed the jury that the employer

was obliged to identify, in consultation with the

employee, potential accommodations, and to assess

the effectiveness each would have in enabling the

individual to perform the essential functions of

the position. The jury was also instructed that

the employer was to consider the preference of

the individual to be accommodated and then select

the accommodation most appropriate for both the

employee and the employer. Based on this Court’s

decisions, the court also advised the jury that

making these determinations is a cooperative

process, and both the employer and the employee

must make reasonable, good faith efforts:

Neither party should be able to cause a breakdown

in the process for the purpose of either avoiding

or inflicting liability. A party that obstructs

or delays the interactive process is not acting

in good faith. A party that fails to communicate,

by way of initiation or response, may also be

acting in bad faith.
R. 67, Court’s Instruction No. 22. See Feliberty

v. Kemper Corp., 98 F.3d 274, 280 (7th Cir.

1996); Beck v. University of Wisconsin Bd. of

Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996).

These instructions are accurate statements of the

law, and the jury was not therefore misled by

them. Lenker’s complaint that the concept of

"good faith" was not adequately addressed is

belied by the language we just quoted. As for

Lenker’s insistence on the "directed process"

language, we have repeatedly held that a party is

not entitled to any particular wording, and the

court adequately addressed the interactive

process concept with its instructions on the need

for a cooperative process. See e.g. Russell v.

National R.R. Passenger Corp., 189 F.3d 590, 594

(7th Cir. 1999). We therefore affirm the district

court’s refusal to give Lenker’s alternate

instruction.
C.
  The district court also declined to give

Lenker’s "100% healed" instruction, which reads,

in relevant part:
Additionally, if you find that the Plaintiff has

proven by a preponderance of the evidence that

the Defendant Hospital has a policy that required

the Plaintiff to be "100% healed" or that he must

be "cured" of his disability before he could

return to work as a nurse, then you shall find

that this is a per se violation of the ADA and

should find for the Plaintiff and against the

Defendant.
R. 66, Plaintiff’s Proposed Jury Instruction No.

37. The district court rejected the instruction

because it was unnecessary in light of other

instructions given and because it did not

accurately reflect the law as it related to the

issues presented in this case. Lenker relies on

Excel in support of this instruction. Excel cited

favorably a district of Minnesota case for the

proposition that a policy that requires an

employee to be 100% healed before returning to

work is a per se violation of the ADA because it

does not allow a case-by-case assessment of an

individual’s ability to perform the essential

functions of the job, with or without

accommodation. See Heise v. Genuine Parts Co.,

900 F. Supp. 1137, 1154 n.10 (D. Minn 1995). 
  Lenker claims there was testimony that Methodist

Hospital had such a policy. He cites statements

from hospital personnel that an employee with a

lifting restriction would not be allowed to

return to work until the restriction was removed

because lifting was an essential function of the

job that could not be accommodated. This is a far

cry from saying that Lenker’s MS must be 100%

healed before being allowed to return to work.

The district court was correct that the "100%

healed" instruction was not an accurate

reflection of the law as applied to the facts of

this case. Instead, Lenker’s real objection to

the hospital’s policy was that it decided,

without consulting Lenker, that lifting was an

essential job function that could not be

reasonably accommodated. Other instructions

addressed this issue, and it was for the jury to

decide whether Methodist was justified in its

blanket assessment that nurses who could not lift

could not be accommodated as nurses. It was also

for the jury to decide whether the hospital

adequately accommodated Lenker in other ways,

such as giving him access to internal job

postings, and placing him on layoff status to

give him time to recover his ability to lift.
D.
  The district court also rejected Lenker’s

proposed instruction on the issue of pretext.

Lenker’s instruction tracked the language of the

McDonnell Douglas case, using a burden shifting

analysis. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The instruction explained

that Lenker believed the actions taken against

him were the result of unlawful discrimination in

violation of the ADA, but that the hospital had

advanced non-discriminatory reasons for its

actions. Lenker’s instruction explained that if

this non-discriminatory explanation was not the

true reason for the hospital’s actions, then the

explanation was pretextual. If the jury decided

the explanation was pretextual, they were free to

conclude that the real reason for the hospital’s

action was unlawful discrimination. The district

court rejected this instruction because it found

that a McDonnell Douglas burden-shifting analysis

was inappropriate and unnecessary for an ADA case

under our decision in Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281 (7th Cir. 1996).
  In Bultemeyer, we explained that in a disparate

treatment claim under the ADA, the plaintiff

could use either direct proof or rely on the

burden-shifting method defined in McDonnell

Douglas. 100 F.3d at 1283. However, when a

plaintiff brings a claim under the reasonable

accommodation part of the ADA, the burden-

shifting method of proof is both unnecessary and

inappropriate. We held in Bultemeyer that if the

plaintiff demonstrated that the employer should

have reasonably accommodated the plaintiff’s

disability and did not, the employer has

discriminated under the ADA and is liable. Id.

See also Weigel v. Target Stores, 122 F.3d 461,

464 (7th Cir. 1997). There is no need at that

point for indirect proof or burden shifting.

Because Lenker’s claim was based on reasonable

accommodation and not disparate treatment, the

district court was correct to reject Lenker’s

proposed pretext instruction.
AFFIRMED.
/1 The hospital also tried to accommodate Lenker by

allowing him to go on layoff status so that he

would have time to possibly regain his ability to

lift if his MS went into remission.