AMER v. Roberts

• Decision Date: 09 November 2015
• Docket Number: No. 2015 CA 0599.,2015 CA 0599.
• Parties: Eid AMER, M.D. v. Floyd ROBERTS, M.D., Venkat Banda, M.D., Robert Kenney, M.D., Robert Chasuk, M.D., Beverly Gladney, M.D., Connie Rome, Kendall A. Johnson, William R. Holman, Fache, Baton Rouge General Medical Center, General Health System, and Administrators of the Tulane Educational Fund.
• Court: Court of Appeal of Louisiana — District of US

184 So.3d 123

Eid AMER, M.D.
v.
Floyd ROBERTS, M.D., Venkat Banda, M.D., Robert Kenney, M.D., Robert Chasuk, M.D., Beverly Gladney, M.D., Connie Rome, Kendall A. Johnson, William R. Holman, Fache, Baton Rouge General Medical Center, General Health System, and Administrators of the Tulane Educational Fund.

No. 2015 CA 0599.

Court of Appeal of Louisiana, First Circuit.

Nov. 9, 2015.

184 So.3d 125

Eid Amer, M.D., Violet, LA, Plaintiff/Appellant, In Proper Person.

Lee C. Kantrow, David S. Rubin, W. Scott Keaty, Jennifer A. Hataway, Julie M. McCall, Baton Rouge, LA, Attorneys for Defendants/Appellees, General Health System, Baton Rouge, General Medical Center, Floyd, Roberts, M.D., Venkat Banda, M.D., Robert Kenney, M.D., Robert, Chasuk, M.D., Beverly Gladney, M.D., Connie Rome, Kendall, Johnson, and William R. Holman.

184 So.3d 126

Before PETTIGREW, HIGGINBOTHAM, and CRAIN, JJ.

CRAIN, J.

The plaintiff in this proceeding filed suit against his former employer and other parties seeking recovery based upon the alleged wrongful termination of his employment. After several of the claims were dismissed during the course of the litigation, the remaining defendants filed a motion for summary judgment, which the trial court granted, dismissing with prejudice all remaining claims asserted in the litigation. We affirm.

FACTS

The plaintiff, Eid Amer, M.D., was hired by Baton Rouge General Medical Center (Hospital) effective July 1, 2011, as a resident in the Hospital's internal medicine residency training program. The parties executed an employment contract that contained a one-year term, but the agreement could be terminated in accordance with the following provisions:

5.1 Without Cause. Under no circumstances will either party terminate Agreement without cause in absence of at least thirty (30) prior notice in writing to the other Party.

5.2 For Cause. Agreement shall terminate automatically upon:

• Death of Resident;

• Resident's voluntary cessation of performance under Agreement; [or]

• Resident's action/inaction that threatens his/her ability to practice medicine or is willful misconduct or dishonesty, fraud, gross negligence [or] malfeasance in performance of duties and responsibilities pursuant to Agreement....

On January 30, 2012, the Hospital provided Dr. Amer with written notice that it was terminating his employment effective March 1, 2012. The notice was delivered to Dr. Amer at a meeting with Dr. Floyd Roberts, the Hospital's Chief Medical Officer and Director of the Internal Medicine Residency Program; and Paul Douglas, the Vice–President of Human Resources. A transcript of the meeting, which was secretly recorded by Dr. Amer, reflects that Dr. Roberts explained to Dr. Amer that the residency program emphasized professionalism and a collaborative learning environment, and that Dr. Amer had not met the faculty's expectations in that regard. Dr. Roberts described the situation as unfortunate but stated, "Delaying this would not be good for you, good for the program, and so the decision of the faculty is final at this point." Douglas advised Dr. Amer that he would receive thirty days of fully paid administrative leave with benefits, and that he was relieved of his duties effective that day.

Dr. Amer filed suit against the Hospital, Dr. Roberts, and numerous other parties seeking recovery based upon a myriad of claims detailed in one hundred and eighty-six paragraphs of allegations, including breach of contract, negligence, fraud, defamation, intentional tort, and violation of due process. The trial court dismissed some of the claims in judgments that are not the subject of the present appeal, and Dr. Amer voluntarily dismissed other claims. Following those dismissals, the remaining defendants were the Hospital, General Health System, Dr. Roberts, Dr. Venkat Banda, Dr. Robert Kenney, Dr. Robert Chasuk, Dr. Beverly Gladney, Connie Rome, Kendall Johnson, and William R. Holman (collectively, the "defendants").¹

184 So.3d 127

The defendants filed a motion for summary judgment seeking a dismissal of all remaining claims. When the motion was considered by the trial court, Dr. Amer was still pursuing the following claims against some or all of the defendants: (1) breach of the employment contract, (2) negligently delaying the verification of Dr. Amer's residency after the termination of the employment ("negligent verification claim"), (3) fraudulently and negligently misrepresenting that the residency program was affiliated with Tulane University School of Medicine "false affiliation claim"), and (4) an alleged violation of the Louisiana Wage Payment Act, Louisiana Revised Statute 23:631, et seq.

The defendants argued that these remaining claims should be dismissed because Dr. Amer failed to exhaust his administrative remedies, citing a provision in the employment contract providing that "grievances will be considered as outlined in the Medical Education Policy and Procedure Manual." The defendants introduced an "Internal Medicine Residency Program Policies and Procedural Manual" that sets forth an appeal process available to a resident who "does not agree that due cause exists for probation or dismissal."

Alternatively, the defendants contended that Dr. Amer could not meet his burden of proving the necessary elements for each of the claims. According to the defendants, Dr. Amer could not prove a breach of the employment contract, because the agreement was properly terminated without cause by giving thirty days written notice. The defendants assert that the negligent verification claim cannot be maintained, because a written request and proper authorization had not been provided for the release of that information, and Dr. Amer presented no proof of damages resulting from the alleged delay in verifying his residency. With regard to the false affiliation claim, the defendants contended that the undisputed evidence established that the residency program was affiliated with Tulane University Medical School (Tulane). Finally, the defendants asserted that the evidence established without dispute that Dr. Amer was paid all wages owed to him through the effective date of the termination of his employment; therefore, his claim under the Wage Payment Act should be dismissed.

Dr. Amer argued that the doctrine of exhaustion of administrative remedies generally applies to disputes involving governmental agencies, and, even in that context, pursuit of the remedy is not required if it would be futile or the remedy is inadequate. Dr. Amer maintained that the grievance procedure did not provide him with an adequate remedy and that any effort to utilize the procedure would have been futile given that Dr. Roberts advised him that the decision was "final and non-negotiable."

In support of his breach of contract claim, Dr. Amer asserted that the "without cause" provision in Subsection 5.1 was null because it conflicted with Section 4.2 of the agreement, which directed that "grievances will be considered as outlined" in the Policy Manual. The grievance procedure set forth in the Policy Manual, according to Dr. Amer, suggested that his employment could only be terminated for cause and only after a due process review. With respect to the negligent verification claim, Dr. Amer attested that an agency assisting him with this request made several telephone calls to the Hospital in March and April of 2012, attempting to obtain the verification to no avail.

Lastly, in support of the false affiliation claim, Dr. Amer relied upon discovery responses

184 So.3d 128

from Tulane and an affidavit signed by an associate dean with Tulane, both of which stated that Tulane did not have a written affiliation agreement with the Hospital covering the internal medicine residency program. In a reply memorandum, the defendants pointed out that in a supplemental response to that discovery, Tulane clarified that although there was no written agreement, Tulane and the Hospital have an affiliation relationship that extends to the Hospital's internal medicine residency program.

The trial court granted the motion for summary judgment, and a judgment was signed on September 9, 2014, dismissing all remaining claims with prejudice. Dr. Amer appeals and assigns multiple assignments of error to the granting of the motion for summary judgment.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966 B(2). The party seeking summary judgment has the burden of proving an absence of a genuine issue of material fact. La.Code Civ. Pro. art. 966 C. If the movant satisfies the initial burden, the burden shifts to the party opposing summary judgment to present factual support sufficient to show he will be able to satisfy the evidentiary burden at trial. See La.Code Civ. Pro. art. 966 C(2); Suire v. Lafayette City–Parish Consolidated Government, 04–1459 (La.4/12/05), 907 So.2d 37,...