Farha v. Cogent Healthcare of Mich., P.C.

Citation32 A.D. Cases 992,164 F.Supp.3d 974
Decision Date29 February 2016
Docket NumberCase Number 14-14911
Parties Asma Farha, M.D., Plaintiff, v. Cogent Healthcare of Michigan, P.C. and Cogent Healthcare, Inc., Defendants.
CourtU.S. District Court — Eastern District of Michigan

Rebecca Erin Shope, James R. Carnes, Shumaker, Loop & Kendrick LLP, Toledo, OH, for Plaintiff.

Megan P. Norris, Michael K. Jackson, II, Miller, Canfield, Paddock & Stone PLC, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
DAVID M. LAWSON
, United States District Judge

Plaintiff Asma Farha, a physician specializing in internal medicine, was terminated for cause from her employment with defendant Cogent Healthcare of Michigan, a group medical practice that furnished staffing services to hospitals. Cogent says it fired her because she complained about her schedule for two years and threatened to refuse to work when scheduled, clients and other physicians complained about her tardiness, and she provoked a blowup well-witnessed with her supervisor in the middle of a hospital. Dr. Farha disputes the charges of tardiness and contends that her termination violated her employment contract. She also contends that Cogent violated the Americans With Disabilities Act, the Family and Medical Leave Act, and the Michigan Whistleblower Protection Act. Cogent moves for summary judgment on all counts, arguing that it had just cause to fire Dr. Farha, and its reasons were not pretexts for a motive made illegal by any of the federal or state laws relied upon by the plaintiff. The Court heard oral argument from the parties on February 1, 2016, and now concludes that, except for the interference claims brought under the ADA and FMLA, fact questions preclude summary judgment. Therefore, the Court will dismiss the ADA claim alleging failure to accommodate and the FMLA interference claim, and deny the motion in all other respects.

I.

Cogent Healthcare of Michigan is a group medical practice consisting of physicians who specialize in family practice and internal medicine. The practice also apparently provides staffing services, furnishing to hospitals physicians who specialize in hospital care, called “hospitalists.” Cogent hired plaintiff Asma Farha on May 17, 2012. She signed an employment contract in which she agreed to render professional hospitalist medical services to patients of the hospitals with which Cogent contracts. The contract term was three years, but allowed either party to terminate without cause with 180 days advance notice. Either party could terminate for a breach of a contract term if it first gave notice and allowed an opportunity for cure. Cogent could terminate without notice for “conduct by the Employee which is reasonably considered by Employer to be unethical, unprofessional, fraudulent, unlawful, or adverse to the interest, reputation or business of Employer or Hospital, including failure of Employee to work as scheduled and behavior by Employee that is disruptive or inappropriate.” Cogent fired Dr. Farha under this latter section on September 29, 2014.

The contract expressly stated that Dr. Farha “may be required [to work] at night, on weekends, and holidays. Employee must be ready to commence Employee's services at the time(s) that Employee is scheduled for the same, it being understood by Employee that lateness will not be tolerated and all times are of the essence.” The contract also specified that an employee may be “required to provide professional medical services at the Hospital twenty-four (24) hours a day, seven (7) days a week and, therefore, there may be instances when Employee is requested to work at unscheduled times and Employee agrees to be reasonably available to work unscheduled times.” Plaintiff Farha admitted that she never read the contract until this litigation was underway. She does acknowledge, however, that she understood she was required to work whenever she was scheduled, including nights, weekends, and holidays.

A. Scheduling Complaints

Dr. Farha's first assignment was at Allegiance Health Center in Jackson, Michigan. Her supervisor was Dr. Bency Mathai. She was assigned to work night shifts, swing shifts, and rounding shifts. The defendant reports that Farha's complaints about scheduling began at Allegiance. Cogent's contract with Allegiance ended, however, and Dr. Farha was then assigned to work shifts at ProMedica Bixby Hospital in Adrian, Michigan, and ProMedica Herrick Hospital in Tecumseh, Michigan. Initially, Dr. Thomas McKeon was Dr. Farha's supervisor at Bixby, but six months later in January of 2014, Dr. Stephen Bachmeyer took over supervision duties and Dr. McKeon stayed on as a physician.

Before transferring to Bixby, Dr. Farha was interviewed by Dr. Steven Evans, regional director of Cogent, and Sarah Susalla, regional vice president of Cogent. Physicians are not normally interviewed when simply transferring between hospitals within Cogent contracts, but they had heard complaints from Dr. Farha's former supervisor and decided they needed to conduct the interview. At this interview, Dr. Evans and Ms. Susalla addressed complaints of arguing over patient assignments, patient load, scheduling, and difficulty getting along with the team. They ultimately decided to transfer Dr. Farha to the Bixby program, but made clear that the program was understaffed and she would need to be flexible with her scheduling.

Dr. Farha says that she got along with Dr. McKeon at Bixby, but problems arose with scheduling when Dr. Bachmeyer took over. Cogent contends that Dr. Farha was chronically tardy to begin her shifts, which the time records appear to substantiate. According to Dr. Farha, Dr. Bachmeyer would change her schedule without notice. She maintains that Dr. Bachmeyer would give her “heavy shifts.” She contends that all of the other physicians at Bixby and Herrick were given both night and day shifts at both hospitals. She, however, was given only nights at Herrick, and only days at Bixby. Farha believes that she was the only physician with whom Dr. Bachmeyer had a problem.

One particular conflict Dr. Farha had with Dr. Bachmeyer happened when Farha called to ask if someone could cover her Bixby shift because there was a storm that created hazardous driving conditions. She asked if Dr. Bachmeyer or Dr. Carolyn Whatley (Regional Medical Director and Dr. Bachmeyer's supervisor), who both lived closer to Bixby hospital, could cover her shift because of the storm. Dr. Bachmeyer allegedly said there was no physician to cover that night and Dr. Farha needed to make it to Bixby no matter what it took. Dr. Farha states that she spent four hours traveling from Ann Arbor to Bixby, normally only a 50-minute drive, only to find out that when she reached the hospital Dr. Bachmeyer was there waiting for her. Dr. Farha thought Dr. Bachmeyer should have covered her shift because it was too risky for her to drive.

The schedules for the Bixby/Herrick physicians typically would issue in three-month blocks, scheduling physicians seven days on and then seven days off. Dr. Farha alleges that Dr. Bachmeyer was the only one who could modify the schedule, even though Dr. Farha would communicate with Melody Isaacson, Cogent's scheduler, who initially set and sent out the schedules. Dr. Bachmeyer, on the other hand, maintains that he had absolutely no role in scheduling.

On February 25, 2014, Ms. Isaacson sent Dr. Farha an updated January-through-March schedule. The update altered the schedule for the last week of March to accommodate a conflict that Dr. Bachmeyer had. Farha's schedule apparently was changed from a mixed schedule of Herrick and Bixby shifts to a schedule of all Bixby shifts. She complained to Ms. Isaacson that the new schedule took away two days at Herrick, giving her the whole week at Bixby, which interrupted her plans made in reliance on the partial-Herrick schedule. During this time, the Herrick/Bixby staff had three unfilled full-time physician openings, which apparently was causing three doctors (Bachmayer, McKeon, and Farha) to do the work of six. Ms. Susalla noted that both Dr. McKeon and Dr. Bachmeyer also had complained about the scheduling at Bixby. Indeed, Dr. Bachmeyer communicated his “rage” about the schedule to Ms. Isaacson. In the correspondence to Ms. Isaacson, Dr. Farha requested to have her two Herrick shifts back and objected to the schedule being changed without communicating with her beforehand. Both Dr. Bachmayer and Ms. Isaacson acknowledged the difficult times and expressed that it should be better in the future.

Dr. Farha retorted with conflicting information in her email response. First she expressed she was happy to have a “breather” at Herrick, but guessed that would not happen, indicating she would be working the assigned shifts at Bixby. And then shortly thereafter, she said “I want my schedule back. You can report me to higher ups, but I am not doing it because you or whoever changes my schedule whenever they like to.” Ms. Isaacson understood this to mean Dr. Farha was not going to work her assigned shifts. Dr. Bachmeyer stepped in, telling Dr. Farha that he wanted to resolve this conflict and saying she was a fantastic doctor and that he valued her presence on the team tremendously.

Dr. Farha ultimately worked the full week of Bixby day shifts.

Dr. Farha never received performance evaluations from Cogent, nor did she receive any kind of written reprimand or discipline. Cogent insists that Dr. Farha was confronted on several occasions about her chronic tardiness, but there is no documentation in her personnel file to support that contention. Furthermore, Dr. Farha maintains that she was only late three or four times, twice because she was in car accidents and one or two more times because of severe weather, which apparently included rain. According to Dr. Farha, Dr. Bachmeyer acknowledged that the weather was the cause of her coming in late on those...

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