Soliman v. Geo. Wash. U. (Full Text)

Case 1:08-cv-01137-RJL Document 46 Filed 09/30/2009 Page 1 of 10

UN ITED STATES D ISTR ICT COURT
FOR THE D ISTR ICT OF COLUMB IA

DINA SOL IMAN , M.D.

Plaintiff ,

v.

GEORGE WASH INGTON UNIVERSITY , et ai.,

Defendan ts .

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) Civil Action No. 08-1137 (R JL )
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MEMORANDUM OP IN ION
(September~, 2009) [# 27 , 30 ]

The plaintiff, Dr. Dina Soliman (“plaintiff” or “Soliman”), was employed as a

doctor and faculty member o f the George Washington University medical school.

Soliman ultimately resigned and brought this lawsuit against a number o f defendants

including George Washington University (“GWU” or “the University”) and a bevy o f her

former colleagues. A subset o f the defendants have submitted the two motions before

this Court. Specifically, GWU filed a Motion for Partial Dismissal, and defendants

District Hospital Partners, L.P, United Health Services o f DC, Inc., and Richard 8 .

Becker, M.D. (“the Hospital defendants”) filed a separate Motion to Dismiss. Because

the motions have many common facts, they will both be addressed in this Memorandum

Opinion. For the following reasons, GWU ‘ s Motion for Partial Dismissal is GRANTED

and the Hospital defendants’ motion is GRANTED in part and DENIED in part.

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BACKGROUND

Soliman began working at GWU in 1998 as an assistant professor o f medicine and

a practitioner in the field o f cardiothoracic anesthesiology. (Am. Compi. ,-r 16.)

Technically, she was employed by both GWU and Medical Faculty Associates, Inc.

(“MF A ” ( (See id. ,-r 18.) MFA is a medical practice group associated with GWU that

maintains offices in GWU ‘ s Ambulatory Care Center. (See id. ,-r 6.) Soliman, o f course,

worked at the Un ivers i ty’s Hospital (“GW Hospital”), which is owned and operated by

District Hospital Partners ( “DHP ” ) – a partnership o f GWU and United Health Services

o fD .C . , Inc. (“UHS”). (See id. ,-r 4.)

So l iman’s complaint includes an extensive list o f employment-related grievances

which she contends constitute gender discrimination, a hostile work environment, and

retaliation, all in violation o f Title VII and the D.C. Human Rights Act (“DCHRA”) , the

highlights o f which can be summarized as follows. The genesis o f So l iman’s grievances

seems to be when she was removed from the Un ivers i ty’s “Hear t Team” in 2000. (Jd.,-r

19.) Her subsequent attempts to rejoin it were rejected in 2001, and Soliman complains

that while her application to rejoin was pending, several colleagues began spreading

rumors about her for the purpose o f keeping her o f f the Team. (Jd.,-r,-r 19 ,21 -23 . )

Indeed, Soliman alleges that her colleagues continued to circulate negative statements

about her medical ability in front o f other doctors, for the purpose o f undermining her

professional reputation, up to the time o f her ultimate resignation from GWU in 2007.

1 Since filing her Amended Complaint, Soliman voluntarily dismissed MFA as a defendant.
(Pl.’s Notice o f Voluntary Dismissal [# 31].)

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(See, e.g., id. ,-r,-r 26 ,29 ,30 , 33 , 34 ,47 , 49 ,6 8 , 98 .) She a lso con tends that, from 2002 to

2006, the doctors respons ib le for he r schedu le gave he r un favo rab le ass ignmen ts wh ich

resu l ted in damage to he r career. (See, e.g., id. ,-r,-r 24 -26 ,29 ,48 ,54 , 55, 67 .)

So l iman res igned on Janua ry 26 ,2007 , to take a pos i t ion w i th V i rg in ia

Commonwea l th University . (Jd.,-r 104.) Fo l low ing he r res igna t ion , the Hosp i ta l

de fendan ts and MFA no t if ied the National P rac t i t ione r D a t ab ank ( “NPDB ” ) tha t So l iman

had res igned he r hosp i ta l s t a f f pr iv i leges wh i le she w a s unde r inves t iga t ion for an adve rse

pa t ien t incident. 2 (See id. ,-r 105.) Soliman claims tha t the NPDB repo r t caused damage

to he r repu ta t ion and de layed he r start at VCU a few mon ths because she had troub le

ob ta in ing new medical s t a f f priv ileges there. (See id. ,-r 107-09 .)

So l iman con tends in h e r comp la in t tha t this was no t the first t ime some o r all o f

the de fendan ts in terfered w i th he r attempts to wo rk e lsewhere . Fo r examp le , in Augu s t

2006 , So l iman app l ied for a pos i t ion a t Ho ly Cross Hosp i ta l in Ma ry land bu t w a s re jec ted

because , she claims, tw o o f he r GWU fMFA co l leagues ” fa lse ly c r i t ic ized” he r to Ho ly

Cross managemen t . (See id. ,-r 75 .) Also, in Oc tobe r 2006 , a mon th a f te r he r invo lvemen t

w i th the adverse pa t ien t incident , So l iman app l ied for a pos i t ion a t N ew Eng land Med ica l

Center. (See id. ,-r 95 .) So l iman was den ied this pos i t ion as we l l , wh i ch she c la ims w a s

2 In September 2006, Soliman was the attending anesthesiologist for an obese patient who
showed signs o f complication during surgery and who died five hours after his release from the
surgery recovery room. (See id. ~ 76.) Soliman’s medical staff privileges at GW Hospital were
suspended less than two weeks later, and though they were reinstated within a week, the
reinstatement was conditioned on a six-week “internal confidential peer review” o f her work.
(See id. ~ 76-86.)

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due again to GWU and MFA officials who “falsely criticized” her to New England

Medical Schoo l’s management. (See id.)

Soliman complained to her Department Chair often about what she perceived to be

this unfair treatment, by email and in person, beginning in December 2001. (See id. ~

152.) Ultimately, she retained a lawyer in 2005, through whom she wrote formal letters

o f complaint to the defendants on February 15 ,2005 , and February 6, 2006. (Jd.) A year

and a ha l f la te r , on September 6 ,20 07 , Soliman filed a discrimination charge with the

Equal Employment Opportunity Commission (“EEOC”). (Jd. ~ 116.) The EEOC sent

Soliman a Notice o f her Right to Sue on April 3, 2008, and she filed this suit less than

ninety days later, on June 30, 2008. (Jd. ~ 117.) GWU has moved for partial dismissal o f

So l iman’s complaint, while the Hospital defendants have moved for complete dismissal.

Soliman, not surprisingly, opposes both motions. Fo r the following reasons, GWU ‘ s

motion is GRANTED and the Hospital defendants’ motion is GRANTED in part and

DENIED in part.

ANALYSIS

At issue in both motions is whether partial or complete dismissal is warranted

under Federal Rule o f Civil Procedure 12(b)(6). Under that Rule, dismissal is warranted

i f it appears that, on any reasonable reading o f the complaint, there are no set o f facts

which could be proved to jus t ify the re l ie f sought. See Con ley v. Gibson, 355 U.S. 41,

45-46 (1977). Indeed, the Supreme Court recently held that Rule 12(b)(6) requires

dismissal i f the complaint does not set forth “plausible” claims. See B e l l A t lan t ic Corp. v.

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Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to a

‘probab i l i ty requ iremen t ,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully .” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Courts may even

dismiss claims sua sponte under Rule 12(b)( 6), without giving the p la in t i f f an

opportunity to replead, i f the p la in t i f f “canno t possibly win relief.” Davis v. District o f

Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998). Unfortunately for Soliman, the Cour t

must dismiss the majority o f her claims because they are either time barred, not plausible,

or both. The sole claim not dismissed here is So l iman ‘s tortious interference with

business c l a im – th a t claim remains open only to the extent that discovery may ultimately

demonstrate tha t defendants misused their bylaws.

1. GWU ‘ s Motion for Partial Dismissal

GWU argues that So l iman ‘ s claims must be dismissed on the grounds that they are

time barred. I agree. Under Title VII, a p la in t i f f cannot bring claims premised on

conduct that allegedly occurred more than 300 days before she filed her EEOC charge.

See 42 U.S.C. § 2000e-5(e)(1) (2008), Mohasco Corp. v. Silver, 447 U.S. 807, 810

(1980). Similarly, under the DCHRA , a p la in t i f f cannot bring claims premised on

conduct that allegedly occurred more than one year before her EEOC charge. See D.C.

Code § 2-1403.04(a) (2009); Estenos v. PAHO /WHO Fed. Credit Union, 952 A .2d 878,

885-86 (D.C. 2008). Soliman filed her EEOC charge on September 6, 2007, but now

argues that because she properly p led a hostile work environment, her claims are subject

to a special limitations rule: Le., i f any act that contributes to a hostile work environment

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occurred w i th in the filing period, then acts comm i t ted during the entire hostile pe r iod

may be considered. See Na t ‘I R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-18

(2002). To evaluate hostile wo rk env ironmen t claims, courts mus t ” look to ‘a l l the

c ircums tances ,’ including ‘ th e frequency o f the discriminatory conduct; its severity;

whe ther it is physically threatening or humiliating, or a mere offensive utterance; and

whe ther it unreasonably interferes with an employee’s wo rk performance . ” , Id. at 116

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17 ,23 (1993)). Unfortunately for

Soliman, the circumstances she has alleged, even i f true, do not amoun t to a hostile wo rk

env ironmen t and thus do not warrant application o f the con t inu ing violations doctrine.

How so?

So l iman ‘ s complaint, in essence, focuses on a numbe r o f discrete acts, such as: (1)

her termination from the “Hea r t Team ,” (2) her non-selection for certain administrative

positions, (3) defendan ts’ alleged interference with her applications to wo rk elsewhere,

and (4) defendan ts’ response to the adverse patient incident wh ich occurred unde r

So l iman ‘ s care. She further tries to knit these acts toge ther into a pa tchwo rk quilt

ev inc ing a larger “campa ign o f discrimination” by p lead ing certain repeated acts, like

punitive scheduling and unfairly negative criticism. (PI. O pp ‘n [# 33] at 8.) M iss ing

mos t importantly, however, are any alleged a c t s – r ep e a t e d o r d i s c r e t e -o f gender based

discrimination! 3

3 The only allegations that relate to So l iman’s gender are her claims that, in 2001, while her
application to rejoin the Heart Team was pending, several o f her colleagues spread false rumors
about affairs between Soliman and other hospital employees. (Am. Compi. ~ 22.) The
allegations occurred long before the statutory time bars, however, and Soliman has already
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Soliman has thus failed to plead in Count Two that she was discriminated against

because a /h e r sex, as required by 42 U.S.C. § 2000e-2(a)( l) . See Harris, 510 U.S. at 21.

As a result, Soliman has also failed to plead a discriminatory hostile work environment

claim in Count Two, and therefore, she cannot avail he r se l f o f the continuing violation

doctrine to prevent statutory time bars from applying to that Count. Moreover, based on

So l iman ‘s failure to plead any gender discrimination whatsoever, Count Two must be

dismissed in its entirety, sua sponte. Simply put, Soliman cannot possibly win re l ie f on a

gender discrimination claim when she has pled no facts to suggest that any o f defendants’

conduct was motivated by her gender. See Davis 158 F .3d at 1349.

As for Count Three, which alleges retaliation in violation o f Title VII and the

DCHRA, it too must be dismissed. Once again, Soliman fails to allege any gender

discrimination. Instead, she merely recounts her repeated informal communications to

her department chair complaining o f vague discriminatory conduct, and later, her

lawye r ‘s more formal communications on the same subject. Like Count Two, it is nearly

impossible for this Court to find Soliman reasonably believed she was the victim o f

“gender discrimination” when she has failed so utterly to allege that any gender

discrimination took place. Thus, absent a reasonable be l ie f that what she was opposing

was unlawful discrimination, Soliman cannot possibly win re l ie f on her retaliation

claims, and they must be dismissed sua sponte. See Fowler v. District a /Co lumb ia , 404

F. Supp. 2d 206 , 210 (D.D.C. 2005) (rejecting Title VII and DCHRA retaliation claims

conceded that they are in fact time barred because they do not relate to any o f her later
allegations. (PI. Opp ‘n to First GWU Mot. for Partial Dismissal [# 21] at 10.)
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based on unreasonableness o f p l a in t i f f s b e l i e f that conduc t he opposed violated Title

VII).

2. The Hospital defendants’ Motion to D ism iss

The Hospital defendants have moved for a complete dismissal o f So l iman ‘ s

complaint as to them. These defendants are named in two o f the four Counts: Coun t One,

tortious interference with a business relationship, and Coun t Four, aiding and abetting

violations o f the DCHRA . As to Count Four, it must be dismissed for failure to state a

claim under Rule 12(b)( 6) for the reasons stated above. In short, the Hospital defendants

could not aid and abet DCHRA violations that there is no plausible basis to believe

occurred. As to Coun t One, however, while the Court agrees that many o f So l iman ‘s

claims must be dismissed, it will defer judgmen t on So l iman ‘ s claim regarding the

defendan ts’ misuse o f their bylaws. How so?

To sufficiently plead Coun t One, Soliman must allege the following essential

elements o f a claim for tortious interference with economic advantage under District o f

Columbia law: (1) the existence o f a valid business relationship or expectancy, (2)

knowledge o f the relationship or expectancy on the part o f the interferer, (3) intentional

interference inducing or causing a breach o f termination o f the relationship or

expectancy, and (4) resultant damage. See Bennett Enterprises, Inc. v. Dom ino’s Pizza,

Inc., 45 F.3d 493 ,499 (D.C. Cir. 1995). Indeed, with respect to the third element o f

intentional interference, ” a general intent to interfere or knowledge that conduct will

injure the p l a in t i f f s business dealings is insufficient to impose liability.” Id. (quoting

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Genetic Sys. Corp. v. Abbo t t Labs, 691 F. Supp. 407, 423 (D.C. App. 1977). What is

required, rather, is ” a ‘s t rong showing o f intent’ to disrupt ongoing business

relationships.” Jd. Most o f So l iman’s Count One allegations must be dismissed because

o f her wholesale failure to plead enough to make a plausibly “strong showing” o f the

necessary intent. Indeed, So l iman’s allegations that defendants’ agents “damaged her

professional reputation, in order to drive her out o f her job , by telling ‘o the r physicians

that [she] was incompetent,’ and constantly questioning her judgmen t in front o f her

colleagues, residents and other hospital s t a f f ‘ are non-specific and speculative, at best.

(PI. Opp ‘n [# 38] at 10.) Her colleagues’ comments may have been unwarranted in her

own view, perhaps even malicious, but Soliman no more than speculates that these

comments were made with the specific intent to interfere with her employment.

The same can be said o f defendants’ alleged interference with So l iman’s

applications to Holy Cross Hospital and New England Medical Center. (See id. at 11.)

So l iman’s claim that defendants criticized and negatively evaluated h e r – to intentionally

prevent her from working at those two ho sp i t a l s -do e s not offer a single shred o f fact to

plausibly support the nefarious intent she imputes to defendants. Finally, Soliman failed

to allege any purpose whatsoever with respect to defendants’ report to the NPDB. She

argues only that defendants “falsely notified” the NPDB o f her resignation, no t that

defendants did so with any particular purpose. (See id. at 17) Simply put, all these

allegations fail to allege the strong showing o f intentional interference required in this

jurisdiction.

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The same cannot be said, however, o f So l iman’s claims concerning defendants’

misuse o f their bylaws. According to Soliman, defendants did not obey their own bylaws

when they investigated her role in the adverse patient incident, summarily suspended her

s ta f f privileges, and then reinstated her privileges contingent on a six-week review

period. (See id. at 10.) In this jurisdiction, a physician can sufficiently plead tortious

interference with a business relationship by merely submitting a “barebones assertion that

‘defendants’ failure to afford [the physician plaintiff] the process and protections

encompassed in its bylaws amounted to arbitrary, capricious, and otherwise

discriminatory conduct.'” See Canady v. Prov idence Hosp . , 942 F. Supp. 11, 18 (D.D.C.

1996) (quoting Oku sam i v. Psych ia tr ic Inst. o /Wa sh in g ton , 959 F.2d 1062, 1066 (D.C.

Cir. 1992). So l iman ‘s Amended Complaint has satisfied this low threshold, and this

claim will therefore remain intact at least throughout the upcoming discovery process in

this case.

CONCLUS ION

Thus, for all o f these reasons, GWU ‘ s Motion for Partial Dismissal is GRANTED,

p l a in t i f f s remaining claims in Counts Two and Three are dismissed sua sponte , and the

Hospital defendants’ Motion to Dismiss is GRANTED in part and DEN IED in part. An

appropriate Order will accompany this Memorandum Opinion.

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United States District Judge

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