Hussain v. Principi

• Decision Date: 28 October 2004
• Docket Number: No. CIV.A.03-0367 (ESH).,CIV.A.03-0367 (ESH).
• Citation: Hussain v. Principi, 344 F.Supp.2d 86 (D. D.C. 2004)
• Parties: Mohammed HUSSAIN, Plaintiff, v. Anthony PRINCIPI, Secretary, Department of Veteran Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

344 F.Supp.2d 86

Mohammed HUSSAIN, Plaintiff, v.Anthony PRINCIPI, Secretary, Department of Veteran Affairs, Defendant.

No. CIV.A.03-0367 (ESH).

United States District Court, District of Columbia.

October 28, 2004.

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Frederic M. Brandes, Timonium, MD, Tony O. Shaw, Dawn V. Martin, Washington, DC, for Plaintiff.

Charlotte A. Abel, Washington, DC, for Defendant.

MEMORANDUM OPINION

HUVELLE, District Judge.

Plaintiff, a male Muslim employed by the Department of Veterans Affairs("VA") for twenty-five years, has brought an employment discrimination suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging discriminatory failure to promote, retaliation, hostile work environment, and constructive discharge based on his race, religion, and national origin.¹Defendant has moved for summary judgment.For the reasons set forth below, the Court concludes that defendant's motion should be granted.

BACKGROUND

I.Factual Background

Plaintiff is a "dark-skinned" Muslim who was born in India.He joined the Washington D.C. Veterans Affairs Medical Center ("VAMC") as a physician in 1978.At that time he held the title of Assistant Chief of Radiation Therapy² and was supervised by Dr. Steven Lunzer, Chief of the Radiation Therapy Service.(Pl.'s Ex. A (hereinafter "Hussain Aff.")¶¶ 1, 5-6).Plaintiff was responsible for treating cancer patients undergoing radiation therapy.In annual performance reviews, Dr. Lunzer consistently gave plaintiff ratings of "high satisfactory."³(Pl.'s Ex. B.)

Dr. Lunzer retired in 1997 and plaintiff was appointed Acting Chief of the Radiation Therapy Service.The position of Acting Chief demanded more administrative responsibilities, but was not accompanied by a pay raise.(HussainAff. ¶¶ 21-22.)As Acting Chief, Dr. Hussain reported directly to the hospital's Chief of Staff, Dr. Fletcher.(Id.¶ 28.)Dr. Hussain was the only physician in the Radiation Therapy Service from Dr. Lunzer's retirement in 1997 until 2001.(Id.¶ 21.)During this time, he indicated to hospital officials an interest in becoming permanent Chief of the Radiation Therapy Service, but his requests went "unanswered."(Id.¶ 24; Pl's Ex. O-2 (1999 Letter to Dr. Sapagnolo, Chief of Staff).)⁴

On September 26, 2000, the Director of VAMC, Mr. Garfunkel, distributed a memorandum informing all employees that, beginning October 15, 2000, the Radiation Therapy Service would be merged with the Imaging Service to create a unified "Radiology Service."(Pl.'s Ex. W-1 (Memo from Mr. Garfunkel, Director).)Dr. Klemens Barth, then Chief of the Imaging Service, was appointed Chief of the newly created Radiology Service.The hospital did not advertise or form a search committee for this position.(HussainAff. ¶ 32;Fletcher Aff.; Garfunkel Aff.)After the merger, Radiation Therapy became a "division" within the Radiology Service, rather than an independent "service."(Pl.'s Ex. W-1.)Plaintiff remained Acting Chief of Radiation Therapy, but now he reported to Dr. Barth, who in turn reported to Dr. Fletcher.Plaintiff's duties, compensation, and supervisory responsibilities remained the same, as did the division's budget and staff.(Id.)

On November 29, 2000, plaintiff filed an informal Equal Employment Opportunity ("EEO") complaint pursuant to 29 C.F.R. ch. 1614, claiming that he had been denied promotion to the permanent position of Chief of Radiation Therapy and "demoted" by way of the merger on the basis of his race, age, religion, and national origin.(Pl.'s Ex. S.)

In January 2001plaintiff received a memo from Mr. Garfunkel stating that he"may be reported" to the National Practitioner's Data Bank ("NPDB")⁵ as a result of a medical malpractice claim settled by the VAMC in March 2000.⁶(Pl.'sEx. J-25(emphasis in original).)The patient's claim was based on lack of informed consent for undergoing radiation therapy.Hospital administrators had identified plaintiff because he was the physician responsible for informing the patient of the risks associated with this procedure.(Def.'s Ex. 3at 6;Fletcher Dep.at 166.)Pursuant to hospital protocol, the hospital had submitted plaintiff's name to the VA "Peer Review Panel" in Buffalo, which would then determine whether reporting to the NPDB would be appropriate.(FletcherAff. ¶ 4;Def.'s Ex. 3at 3;seeDef.'s Replyat 8.)Also in January 2001 Dr. Fletcher submitted a letter to the Peer Review Panel stating that plaintiff did not provide substandard care and recommending that plaintiffnot be reported to the NPDB.(Pl.'s Ex. BB (email from Dr. Fletcher to Dr. Hussain);Def.'s Ex. 3at 2(letter from Dr. Fletcher to Medical-Legal Affairs Department).)The Peer Review Panel, finding no deviation from the standard of care, decided not to report Dr. Hussain to NPDB.The matter ended there.(Pl.'s Ex. CC (memo re: Conclusions of Review Panel).)

On February 14, 2001, plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission("EEOC") asserting the same claims as his initial EEO complaint.In addition, plaintiff claimed that the hospital had submitted his name to the Peer Review Panel as retaliation for filing his earlier EEO complaint.(Pl.'s Ex. T.)

Since Dr. Lunzer's retirement, Dr. Hussain had been complaining that his department was short staffed, causing him to be "on call" 365 days a year.(HussainAff. ¶ 21.)In July 2001, Dr. Barth hired Dr. JoAnn Manning, an African American female as an additional staff physician in the Radiation Therapy Division.⁷(Pl.'s Ex. U.)

Between July 2001 and December 2001, plaintiff did not receive approximately $23,000 in "special pay" to which he was entitled.(HussainAff. ¶ 55.)Plaintiff discovered the problem in January 2002 when he received his W-2 tax form for the 2001 calendar year.Plaintiff concedes that the error originated in his failure to renew his special pay contract with the VAMC's Human Resources Department.(Hussain Dep.at 98-105.)

In October 2001plaintiff received his first performance review since Dr. Lunzer's retirement.Dr. Fletcher, who conducted the review, gave plaintiff a "satisfactory" rating, stating that "many issues have arisen regarding Dr. Hussain."(Pl.'s Ex. NN-2.)Plaintiff's next performance review, conducted by Dr. Manning and approved by Dr. Barth in August 2002, gave him an overall rating of "low satisfactory."(Pl.'s Ex. PP.)Among other comments, Dr. Manning stated that Dr. Hussain did "not provide an effective leadership for the division."(Id.)

On December 20, 2002, Dr. Barth appointed Dr. Manning as Chief of Radiation Therapy, with Dr. Hussain remaining as Acting Chief only in her absence.At this time, Dr. Manning became Dr. Hussain's supervisor and his title reverted back to that of Assistant Chief.Dr. Hussain's compensation and duties remained the same, except that he was relieved of his administrative responsibilities.(Pl.'s Ex. N.)Dr. Manning took on these responsibilities but did not receive a pay increase.(ManningAff. ¶ 4.)

As Chief of Radiation Therapy and Radiology respectively, Dr. Manning and Dr. Barth encountered a number of problems with Dr. Hussain's performance.(Manning Aff.; Barth Aff.)One of the issues of most concern was his failure to conduct adequate follow-up with radiation therapy patients.Though the American College of Radiology ("ACR") Standards for Radiation Oncology provide that follow-up evaluations by the radiation oncologist are "essential," Dr. Hussain believed that patients need only see their primary treating clinics for follow-up care.(Def.'s Ex. 2at 11(4/28/03 email from Dr. Hussain to Dr. Manning) and at 14(ACR Standards).)⁸Apparently as a result of this concern, Dr. Hussain's clinical privileges were renewed "with modifications" in June of 2003.(Def.'s Ex. 4at 2.)The modifications provided that Dr. Hussain would be required to document the results of weekly examinations of his patients and that documentation would be reviewed monthly.His privileges were renewed for a three-month period rather than the normal two-year period.(Id.)Upon review of the required documentation in August 2003, Dr. Barth and Dr. Manning found "an alarming pattern ... that Dr. Hussain finds it appropriate to copy and paste other physicians [sic] assessment into electronic patient record without giving evidence that he has actually seen and examined the patient prior to, during, or after treatment."(Def.'s Ex. 4at 5.)On August 26, 2003, Dr. Barth informed Dr. Hussain, who at the time was on extended medical leave, that his clinical privileges would be extended for one month, but upon returning from medical leave, he would have to fully comply with ACR guidelines to extend his privileges further.(Def.'s Ex. 4at 1.)

Dr. Hussain began his extended medical absence on July 28, 2003.The next day he provided a letter from his doctor stating that "extended sick leave [was] necessary until further notice."(Pl.'s Ex. TT.)The letter stated that "his emotional state doesn't allow him to continue to be exposed to the very stressful work environment" and recommended reevaluation at one-month intervals.(Id.)On August 5, 2003, Dr. Manning informed Dr. Hussain that she could not approve his sick leave request beyond August 11 without further medical documentation.Dr. Hussain appears not to have responded to this request and was thus placed in "Absence Without Leave" status as of August 12, 2003.⁹(Pl.'s Ex. UU.)In September 2003plaintiff opted for early retirement and left defendant's service.(Pl.'s Ex. WW.)

II.Plaintiff's Lawsuit

Plaintiff commenced this suit in February 2003 and filed his Second Amended Complaint on November 7, 2003.The government filed its Motion for Summary Judgment on June 18, 2004.Over a month after this motion had been filed and three and a half months after discovery had...