Moore v. Grady Mem'l Hosp. Corp.

• Citation: 834 F.3d 1168
• Decision Date: 19 August 2016
• Docket Number: No. 14-14719,14-14719
• Parties: Ronald E. Moore, Jr., Plaintiff–Appellant, v. Grady Memorial Hospital Corporation, Fulton–Dekalb Hospital Authority, d.b.a. Grady Health System, Kenneth J. Carney, M.D., Raphel Gershon, M.D., Kelvin J. Holloway, M.D., et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

834 F.3d 1168

Ronald E. Moore, Jr., Plaintiff–Appellant,

v.Grady Memorial Hospital Corporation, Fulton–Dekalb Hospital Authority, d.b.a. Grady Health System, Kenneth J. Carney, M.D., Raphel Gershon, M.D., Kelvin J. Holloway, M.D., et al., Defendants–Appellees.

No. 14-14719

United States Court of Appeals, Eleventh Circuit.

August 19, 2016

Earle Burke, John Mahoney, The Burke Law Group, Atlanta, GA, for Plaintiff–Appellant.

Bernard Taylor, Aliyya Haque, Christopher Carl Marquardt, Sean A. Simmons, Alston & Bird, LLP, Atlanta, GA, for Defendants–Appellees.

Before JORDAN and ANDERSON, Circuit Judges, and DALTON,^* District Judge.

JORDAN

, Circuit Judge:

Dr. Ronald E. Moore, Jr. appeals the district court's dismissal of his claims for race discrimination and retaliation in violation of 42 U.S.C. § 1981

. Exercising plenary review, see

Shands Teaching Hospital & Clinics, Inc. v. Beech Street Corp. , 208 F.3d 1308, 1310 (11th Cir. 2000), and with the benefit of oral argument, we affirm in part and reverse in part.

I

The complaint alleged the following facts.

A

Dr. Moore, an African-American male, is a licensed, board-certified general surgeon and a specialist in laparoscopic and advanced robotic surgery. Sometime in 2011, Morehouse School of Medicine recruited him to be part of its faculty.

Prior to his appointment to the MSM faculty, Dr. Moore was required to obtain clinical privileges at Grady Memorial Hospital. Dr. Moore applied for privileges at Grady in August of 2012, and was granted them the following month. Dr. Moore sought privileges to perform various laparoscopic procedures

, including several that are considered to be “foregut surgeries” that Dr. Moore performed to treat reflux disease or to repair hiatal hernias. Grady's standard application for surgical privileges “does not contain the type of special surgical procedures [for which] Dr. Moore sought privileges.” D.E. 1 at ¶ 19. Nevertheless, “Grady never informed Dr. Moore, either in writing or verbally, that there were any deviations from the clinical privileges granted,” and “no one ever instructed Dr. Moore to refrain from any types of surgeries or imposed any limitations to the clinical privileges granted to him.” Id. at ¶ 28.

In October of 2012, Dr. Moore entered into an employment agreement with MSM for a position as an assistant professor in the Department of Surgery. In January of 2013, Grady entered into an affiliation agreement with MSM. The agreement recognized that “the mission of MSM at Grady is to educate medical students, train physicians, operate a faculty group medical practice, conduct medical research and engage in efforts to improve healthcare for sick and injured individuals.” Id. at ¶ 29. The affiliation agreement outlined how MSM and its faculty would provide clinical services to Grady. It also set out the faculty's teaching responsibilities.

Grady receives approximately $750 million from Fulton County and DeKalb County, as well as other government and private sources, to sustain a clinical practice. This money is then divided between Emory University's School of Medicine and MSM based on the clinical services these entities provide to Grady. Grady also refers uninsured or underinsured patients to outside physicians and compensates those physicians for procedures as “fee for services.” Decisions about when and where to send patients is controlled by Dr. Curtis Lewis, Grady's Chief Medical Officer and Executive Vice President.

B

In late April of 2013, Timothy Jefferson, Grady's General Counsel, approached Dr. Derrick Beech, Associate Dean at MSM, regarding several surgical procedures performed by Dr. Moore. Grady was not compensated for these surgeries because they were coded as bariatric procedures, i.e., procedures to achieve weight loss, which were unauthorized because, according to a summary suspension letter later received by Dr. Moore, Grady has no program in place to support bariatric/weight loss surgeries

for its patients. See D.E. 18-1.¹

Dr. Beech agreed to review the procedures performed by Dr. Moore. With the exception of one case, Dr. Beech did not believe that Dr. Moore's surgeries were bariatric. Grady decided to have the cases examined by an outside reviewer. In the meantime, the parties agreed that Dr. Moore would not perform gastric bypass surgery

, but that he could continue to perform sleeve gastrectomy for patients with morbid obesity and a clear diagnosis of gastroesophageal reflux disease.

In June of 2013, Dr. Moore met with Dr. Roseanne Pena—the acting Director of the Operating Room at Grady—and another physician, and expressed his concern that the Emory doctors were being given greater access to the operating rooms at Grady as compared to the MSM doctors. For example, even where the doctors from the two schools had the same number of cases, if there were 18 operating rooms, the MSM doctors would be allotted two, and the Emory doctors would be given 16.

C

Dr. Moore received a letter from Dr. Lewis on July 1, 2013, informing him that his membership on Grady's medical staff was summarily suspended due to his continued performance of unauthorized surgical bariatric/weight loss procedures. According to the letter, Dr. Moore had been advised on several occasions that such procedures were not authorized at Grady and told to cease performing them. The letter apprised Dr. Moore that his procedures were being reviewed externally and that he would be given a hearing and appeal rights in accordance with Grady's medical staff bylaws.

A July 5, 2013, letter from Dr. Kevin Holloway—the Deputy Senior Vice President for Medical Affairs at Grady and an associate professor at MSM—confirmed that the basis for Dr. Moore's summary suspension was the unauthorized surgical bariatric/weight loss procedures, and outlined the steps that would follow in the Medical Executive Committee's review of the suspension. According to the complaint, Dr. Moore never discussed ceasing bariatric procedures with anyone at Grady or MSM prior to the specific surgeries referenced in Dr. Holloway's July 5 letter.

Dr. Moore was invited to address the MEC when it met, but was not permitted to be in the room while Dr. Lewis spoke to the MEC. Dr. Lewis presented a much broader basis for Dr. Moore's suspension than had been communicated in the July 1 and July 5 letters, and introduced the results of the external review of Dr. Moore's procedures, which had not been shared with Dr. Moore. By the time Dr. Moore entered the room, “the MEC had clearly decided his fate.” D.E. 1 at ¶ 54. Further, “during the deliberation process, one or two [MEC] members ... made disparaging and unprofessional comments, which evidence[d] racial animus and malice.” Id .

The MEC decided to continue the suspension of Dr. Moore's privileges. Because Dr. Moore refused to resign his privileges at Grady's urging, one or more of its physicians filed complaints against him with the Composite State Medical Board.

In October of 2013, Dr. Moore sued Grady, the Fulton-Dekalb Hospital Authority d/b/a Grady Health System, and several individual physicians at Grady (individually and in their capacities as members of the MEC). He alleged violations of 42 U.S.C. § 1981

(Counts I & II); 42 U.S.C. § 1983 (Count III); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Count IV); and 42 U.S.C. § 1986 (Count V). Dr. Moore also asserted two state-law claims, one for violations of hospital bylaws (Count VI), and the other for intentional infliction of emotional distress (Count VII). The district court granted the defendants' Rule 12(b)(6) motion to dismiss the federal claims and declined to exercise jurisdiction over the state-law claims. Dr. Moore's appeal concerns only the § 1981 claims asserted in Counts I and II.

II

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

III

“Among the many statutes that combat racial discrimination, § 1981

... has a specific function: It protects the equal right of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.” Domino's Pizza, Inc. v. McDonald , 546 U.S. 470, 474–75, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (quoting § 1981(a) ). The phrase “make and enforce contracts” is defined to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).

Dr. Moore pursues two theories of liability under § 1981

: discrimination by Grady, the Hospital Authority, and the individual Grady physicians (Count I); and retaliation by Grady and the Hospital Authority (Count II). We address each theory in turn.

A

“To state a claim of race discrimination under § 1981

, [a] plaintiff [ ] must allege facts establishing: (1) that [he] is a member of a racial minority; (2) that the defendant intended to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the activities enumerated in the statute.” Jackson v. BellSouth Telecomm. , 372 F.3d 1250, 1270 (11th Cir. 2004)

(citation and footnote omitted).

It is undisputed that the complaint satisfied the first two elements. Dr. Moore is a member of a racial minority, and, accepting his allegations as true, the defendants do not challenge the claim that they intentionally discriminated against him because of his race by, “among other things, diverting cases to white physicians outside of Grady Hospital, failing to provide operating...