682 F.3d 1299 (11th Cir. 2012), 09-16371, Gowski v. Peake

Docket Nº:09-16371.
Citation:682 F.3d 1299
Opinion Judge:PER CURIAM:
Party Name:Diane T. GOWSKI, M.D., Sally B. Zachariah, M.D., Plaintiffs-Appellees-Cross-Appellants, v. James PEAKE, M.D., Secretary, Department of Veterans Affairs, et al., Defendants, Eric K. Shinseki, Defendant-Appellant-Cross-Appellee.
Attorney:Benjamin Kingsley, Marleigh D. Dover, USDOJ, Civ. Div., App. Staff, Washington, DC, Todd B. Grandy, Tampa, FL, for Defendant-Appellant-Cross-Appellee. Ward A. Meythaler, Joseph D. Magri, Merkle, Magri & Meythaler, P.A., David Paul Rhodes, U.S. Atty., U.S. Attorney's Office, Tampa, FL, for Plainti...
Judge Panel:Before EDMONDSON, KRAVITCH and FARRIS,[*] Circuit Judges.
Case Date:June 04, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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682 F.3d 1299 (11th Cir. 2012)

Diane T. GOWSKI, M.D., Sally B. Zachariah, M.D., Plaintiffs-Appellees-Cross-Appellants,


James PEAKE, M.D., Secretary, Department of Veterans Affairs, et al., Defendants,

Eric K. Shinseki, Defendant-Appellant-Cross-Appellee.

No. 09-16371.

United States Court of Appeals, Eleventh Circuit.

June 4, 2012

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Benjamin Kingsley, Marleigh D. Dover, USDOJ, Civ. Div., App. Staff, Washington, DC, Todd B. Grandy, Tampa, FL, for Defendant-Appellant-Cross-Appellee.

Ward A. Meythaler, Joseph D. Magri, Merkle, Magri & Meythaler, P.A., David Paul Rhodes, U.S. Atty., U.S. Attorney's Office, Tampa, FL, for Plaintiffs-Appellees-Cross-Appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON, KRAVITCH and FARRIS,[*] Circuit Judges.


This appeal and cross-appeal arise from a jury verdict and award of damages and injunctive relief in favor of Doctors Diane Gowski and Sally Zachariah in their discrimination, retaliation, and hostile work environment suit against the Secretary of the Department of Veterans Affairs (VA). 1 We must decide whether this circuit recognizes a retaliatory hostile work environment claim and, if so, whether the evidence in this case was sufficient to support the jury's verdict and damages award. We conclude that a retaliatory hostile work environment is a viable claim and, after a thorough review of the record and with the

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benefit of oral argument, we affirm in part and vacate and remand in part.

I. Background

This case involved a two-week jury trial, four plaintiffs, four hospital administrators and department heads, numerous witnesses, and extensive documentary evidence. We begin by identifying the plaintiffs, their claims, and the relevant members of the VA's administration. Doctors Gowski and Zachariah were employed at the Bay Pines VA hospital and medical center in Florida. Gowski was a hospitalist who began working for the VA in 1997. In 2005, she was assigned to the medical intensive care unit (MICU). Zachariah began working for Bay Pines in 1989 as a neurologist and researcher and is an associate professor of neurology at the University of South Florida.

At the relevant times, Dr. Sharachandra Patel was the chief hospitalist and Gowski's immediate supervisor. Dr. Lithium Lin was the chief of medicine services. Dr. George Van Buskirk was Bay Pines's chief of staff. Wallace Hopkins was Bay Pines's director. Bay Pines's medical departments were divided into services, such as medicine, surgery, geriatrics, and mental health. Services were comprised of sections of specific fields, such as pulmonology, cardiology, and hospitalists. At Bay Pines, neurology became its own service in 2002, but was realigned as a section in medicine services in 2006. While neurology was a section in medicine services, Lin was Zachariah's supervisor.

In August 2007, Gowski and Zachariah, along with Dr. Claudia Cote and administrative assistant Roxanne Lainhart Bronner, who are not parties to this appeal, filed a complaint in district court against the Secretary, alleging retaliation and a retaliatory hostile work environment.2 Gowski alleged that the hospital administration retaliated against her after she filed an EEO complaint in October 2005 by changing her duty assignments, removing her from committee chair positions and taking her off committees altogether, denying her privileges, reprimanding her, counseling her and suspending her, refusing to investigate her allegations against another doctor, soliciting complaints about her, lowering her proficiency reports, accusing her of an altercation with another doctor, and charging her $18,000 for an alleged debt incurred eight years earlier.

Zachariah alleged that, after she filed EEO complaints in June 2005 and April 2006, Bay Pines's administration retaliated against her by lowering her proficiency reports, giving her smaller bonuses than those her colleagues received, suspending her research activities, shortening the time for which her privileges were approved, realigning neurology as a section under medicine services, removing her from the rotation as section chief, identifying her as a participant in a tort claim, removing her as leader of the stroke group, issuing a reprimand for negligence, suspending her and recommending her termination, and denying her access to the grievance and appeals process.

II. The Trial3

A. The Retaliatory Scheme

At trial, Gowski and Zachariah alleged

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that Bay Pines's management " made a concerted effort to retaliate against employees who filed EEO claims against them, or opposed their discriminatory or retaliatory actions." The evidence showed that Van Buskirk and Hopkins did not look highly on employees who filed EEO complaints and carried out a plan to remove these employees from Bay Pines's staff. As part of the scheme, Lin, Patel, and Van Buskirk (a) targeted employees who filed complaints, (b) spread rumors about the doctors, (c) attempted to ruin the doctors' reputations and careers, and (d) collected reports against those who filed complaints in an effort to terminate them. For his part, Hopkins warned staff members that the VA would not settle frivolous complaints and lawyers would not run the hospital. To carry out his part in the scheme, Lin enlisted Bronner to urge Gowski and Zachariah to resign, and he used Patel as a " mole" to obtain Reports of Contact (ROC) from other staff and to disseminate negative information about both Gowski and Zachariah.

Other doctors and staff members were aware of the scheme and, between 2006 and 2007, many of Bay Pines's doctors left the hospital out of fear of being targeted. Doctors and nurses were told to submit ROCs on their interactions with Gowski and Zachariah with Patel sometimes dictating what the staff should write. Several staff members testified that if they did not go along with Patel and Lin's scheme, they would be targeted as well.

B. Gowski's Claims

Gowski testified that Bay Pines was a hostile work environment full of fear and retaliation. She felt that Lin, Patel, and Van Buskirk engaged in character assassination, solicited complaints from other staff, questioned her ethics, and harmed her reputation.

Gowski had trained in critical-care medicine and worked in the MICU until July 2005, when Patel informed her that she would rotate assignments in two-month cycles; she would work on the general medical wards for two months and then spend two months in the MICU.4 But by June 2006, after Gowski had filed her EEO complaint, Lin and Patel refused to allow Gowski to rotate through the MICU. And when Lin and Patel arranged to provide hospitalist coverage for cardiology in January 2007, Gowski was not one of the hospitalists assigned.

Gowski was appointed to the Critical Care Committee in 2003 and she became the committee chair in November 2004. Although the usual term for a committee chair was two years, Gowski was removed from the position in July 2005. 5 By January 2006, she was not even a member of the Critical Care Committee. Gowski was also a member of the Code Blue Committee, and although she expressed an interest in being the committee chair, she was not selected. When she learned another doctor had been appointed, she questioned the appointment during a committee meeting. After the meeting, members of the committee complained that Gowski's behavior

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had been aggressive and confrontational.

In April 2006, Gowski sought to renew her hospital privileges. Although Patel and Lin initially signed off on all the privileges she requested, she later learned that the Professional Standards Board (PSB) had not approved certain privileges necessary to her work in the critical-care units. Because it was advantageous to patient care to have a critical-care certified hospitalist, and because the loss of privileges would make it difficult to retain her critical-care certification, Gowski believed the decision to limit her privileges was part of the retaliatory scheme. Lin presented her application to the PSB, and Van Buskirk was the PSB chair.

In July 2006, Gowski attended a hospitalist meeting at which Patel discussed the pending move of the neurology department into the medicine service. Gowski had many concerns about the procedures following the move, and, although she emailed Lin and Patel about them prior to the meeting, she had not received a response. After she reiterated her concerns at the meeting, she was reprimanded for disruptive behavior and unprofessional conduct. A few weeks later, she was reassigned to ward 5-A.

Shortly thereafter in December 2006, Gowski learned that her personnel file showed that she had been involuntarily terminated in 1999. When she inquired about correcting the error, she was told that if she made the changes to show she had voluntarily resigned, she would owe $18,000 that she had received as speciality pay. She applied for a waiver of liability so that she would not have to repay, but Hopkins denied her request.

In April 2007, Lin issued a proposed a two-week suspension based on a pattern of unprofessional conduct in connection with an incident with nurse Mary Howell. Howell accused Gowski of being disrespectful when a patient in her care needed to be moved to another unit. Lin did not interview Gowski before recommending the suspension. Hopkins reviewed Lin's recommendation and issued the suspension for one week instead of two. The only evidence Hopkins considered was Gowski's prior reprimand, but Gowski had not been interviewed...

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