Kogan v. United States, 11-148 C

• Decision Date: 27 August 2013
• Docket Number: No. 11-148 C,11-148 C
• Parties: VLADIMIR KOGAN, MD, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
• Court: U.S. Claims Court

VLADIMIR KOGAN, MD, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.

No. 11-148 C

United States Court of Federal Claims

Filed: August 27, 2013

Cross-Motions for Summary

Judgment; Contract Interpretation;

Breach of Contract; Implied Duty

of Good Faith and Fair Dealing

Vladimir Kogan, MD, Minnetonka, MN, pro se.¹

Delisa Maria Sanchez, Trial Attorney, with whom were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Jason F. Rudie, Staff Attorney, United States Department of Veterans Affairs, Minneapolis, MN, of counsel.

OPINION

HEWITT, Chief Judge

Dr. Vladimir Kogan (Dr. Kogan or plaintiff) is a Russian-born staff physician at the Minneapolis Veterans Affairs Healthcare System (the MVAHS), where he has worked for nearly thirty years. See Compl., Docket Number (Dkt. No.) 1, ¶¶ 3, 7, 10. In early 2001, plaintiff filed an Equal Employment Opportunity (EEO) claim against theUnited States Department of Veterans Affairs (the VA or defendant), acting through the Minneapolis Veterans Affairs Medical Center (the MVAMC),² alleging age and national origin discrimination. See id. ¶ 10. Plaintiff and the VA resolved the EEO action by entering into a settlement agreement dated April 29, 2002 (the Settlement Agreement), see id. ¶ 14, which, according to plaintiff, required the VA "to pay [Dr. Kogan] 100% salary for a full time physician in the Radiation Oncology Department," id. ¶ 27. Plaintiff alleges that, from January of 2006 to the present, the VA has breached the Settlement Agreement by failing to pay him an annual "effective salary for a physician in the Radiation Oncology Department" (count one). Id. ¶ 23 (internal quotation marks omitted); see id. ¶ 27 (similar). Plaintiff also alleges that the VA has breached an implied duty of good faith and fair dealing inherent in the Settlement Agreement (count two). See id. ¶¶ 30-31.

Before the court are: the Complaint, filed March 7, 2011; Plaintiff's Cross-Motion for Summary Judgment (plaintiff's Motion or Pl.'s Mot.), Dkt. No. 38, a Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment (Pl.'s Mem.), Dkt. No. 39, and Exhibits to Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment (Pl.'s Ex.),³ Dkt. No. 39-1, filed February 19, 2013; Defendant's Cross-Motion for Summary Judgment (Def.'s Mot. or defendant's Motion), Dkt. No. 40, and an Appendix to Defendant's Cross-Motion for Summary Judgment (Def.'s App.),⁴ Dkt. No. 40-1, filed February 19, 2013; Plaintiff's Response to Defendant's Cross-Motion for Summary Judgment (Pl.'s Resp.), Dkt. No. 46, filed April 15, 2013; Defendant's Response in Opposition to Plaintiff's Cross-Motion for Summary Judgment(defendant's Response or Def.'s Resp.), Dkt. No. 47, and an Appendix to Defendant's Response in Opposition to Plaintiff's Cross-Motion for Summary Judgment (Def.'s Resp. App.),⁵ Dkt. No. 47-1, filed April 19, 2013; Plaintiff's Reply to the []Defenda[n]t's Response in Opposition to P[la]intiff's Cross-Motion for Summary Judgment (Pl.'s Reply), Dkt. No. 48, filed May 15, 2013; and Defendant's Reply to Plaintiff's Response to Defendant's Cross-Motion for Summary Judgment (Def.'s Reply), Dkt. No. 49, filed May 15, 2013.

Plaintiff moves for summary judgment on count one and count two. See Pl.'s Mot. 1. Defendant cross-moves for summary judgment, contending that the VA did not breach the Settlement Agreement. See Def.'s Mot. 11. In its Response, defendant further argues that plaintiff has shown neither that the VA breached the implied duty of good faith and fair dealing nor that the VA acted in bad faith. Def.'s Resp. 11.

For the reasons stated below, plaintiff's Motion is DENIED, and defendant's Motion is DENIED-IN-PART. To the extent that defendant seeks dismissal of plaintiff's claims for punitive damages and for adjustment of plaintiff's future pension, defendant's Motion is GRANTED-IN-PART.

I. Background⁶

A. Plaintiff's Employment and Salary History from 1985 to 2000

Plaintiff was born and raised in St. Petersburg, Russia, where he earned MD and PhD degrees in radiation oncology. Pl.'s Mem. 3; Def.'s Mot. 2. Plaintiff practiced radiation oncology in St. Petersburg from 1968 to 1978. Pl.'s Mem. 3; Def.'s Mot. 2. In 1979, he immigrated to the United States, arriving in New York City. Pl.'s Mem. 3; Def.'s Mot. 2. In 1981, plaintiff passed the United States Medical Licensing Examination, a requirement for foreign-trained physicians to practice in the United States, and thereafter began a residency program in radiation oncology at Montefiore Medical Center in New York. Def.'s Mot. 2; see Pl.'s Mem. 3-4. Plaintiff completed his residency program in 1984 and a fellowship in radiation oncology in June of 1985. Pl.'s Mem. 4; Def.'s Mot. 2. In July of 1985, plaintiff began working at the MVAMC, where he served as a staff physician in the Radiation Oncology Department until 2000. See Pl.'s Mem. 4; Def.'s Mot. 2.

From 1985 to 2000, salaries for VA physicians consisted primarily of twocomponents: base pay and special pay.⁷ Def.'s Mot. 2; see Pl.'s Mem. 4. "Base pay was set according to a scale applicable to physicians and based primarily on the number of years of service with the []VA or Government service." Def.'s Mot. 2; see Pl.'s Mem. 4 (defining "basic pay" as a "fixed rate of pay that depend[s] on longevity (tenure)"). "Special pay was composed of various categories including: full-time status, tenure, board certification, geographic location, . . . and Scarce Specialty Pay." Def.'s Mot. 2-3. Physicians were eligible for Scarce Specialty pay, which "could not exceed $40,000 annually," if they practiced specialties considered "scarce by the []VA." Id. at 3 (emphasis omitted). If a physician was approved to receive scarce specialty pay, but "did not actually work full-time in his/her specialty for which he was receiving Scarce Specialty pay, then that physician's Scarce Specialty pay had to be reduced and pro-rated in accordance to the percentage of time worked in the scarce specialty." Id.; see Pl.'s Reply 32 (stating that the VA could prorate the special pay component if the physician "spen[t] a significant amount of time away from clinical duties within his/her specialty or assignment" (internal quotation marks omitted)). Radiation oncology was considered a "scarce specialty," and, from 1985 to 2000, plaintiff's salary included the maximum amount of scarce specialty pay--$40,000. See Pl.'s Mem. 4 (emphasis omitted); Def.'s Mot. 3.

B. The Settlement Agreement

In February of 2000, the MVAMC placed plaintiff on administrative leave pending an investigation of certain medical practices within the Radiology Oncology Department. See Pl.'s Mem. 5; Def.'s Mot. 3. In April of 2001, the MVAMC took plaintiff off administrative leave and assigned him to work in Compensation & Pension (C&P) Services. Pl.'s Mem. 6; Def.'s Mot. 3. Plaintiff did not receive scarce specialty pay while placed on administrative leave, Def.'s Mot. 3; see Pl.'s Resp. 4 (claiming that, while Dr. Kogan was on administrative leave, the VA "stopped paying him his Scarce Specialty pay," among other alleged injuries), or while working in C&P Services, see Pl.'s Resp. 30 (claiming that the VA's failure to pay Dr. Kogan scarce specialty pay "from the time when he was transferred to the C&P and up to the execution of the Settlement Agreement was unlawful" (internal quotation marks omitted)); Def.'s Mot. 12 ("At the time the Settlement Agreement was executed, Dr. Kogan was not receiving the scarce specialty pay in the amount of $40,000.00 because he had been transferred to C&P . . . .").

In February of 2001, plaintiff filed an EEO claim against the VA, alleging "Age/62 and National Origin/Russia Discrimination and Retaliation." Pl.'s Mem. 1; see Def.'s Mot. 3. In early 2002, plaintiff's EEO claim was heard before an administrativelaw judge. See Pl.'s Mem. 7; Def.'s Mot. 4. In March of 2002, the parties began settlement discussions. Pl.'s Reply 29. On April 29, 2002, plaintiff and the VA--represented by then Director of the MVAMC, Steven P. Kleinglass (Mr. Kleinglass)--entered into the Settlement Agreement, see Pl.'s Mem. 8; Def.'s Mot. 4. See generally Def.'s App. A1-4 (Settlement Agreement). The Settlement Agreement was signed by both Dr. Kogan and Mr. Kleinglass. Pl.'s Mem. 1; Def.'s App. A4 (Settlement Agreement).

Under the terms of the Settlement Agreement, plaintiff agreed to withdraw his EEO claim. See Def.'s App. A1 (Settlement Agreement). In return, the VA agreed to "[r]estore Dr. Kogan's full privileges in its Radiation Oncology Department and retain existing full privileges in [C&P] Services." Id. at A2. The Settlement Agreement further provided that plaintiff would work four days a week in C&P Services and one day a week in Radiation Oncology. Id. Paragraph 3.E of the Settlement Agreement, which is the primary subject of dispute in this case, provided that the VA agreed to:

Pay Dr. Kogan One Hundred Seventy-Four Thousand Three Hundred Fifty Seven Dollars ($174,357.00) per year, which is the effective salary for a physician in the Radiation Oncology Department immediately upon signing of the Settlement Agreement. The $174,357.00 includes specialty pay in the amount of $40,000.00.

Id.

As provided in the Settlement Agreement, plaintiff began working four days a week in C&P Services and one day a week in Radiology Oncology, and the VA paid plaintiff an annual salary of $174,357. See Pl.'s Mem. 9; Def.'s Mot. 4. Plaintiff also "received annual cost-of-living adjustments . . . to his Annual Basic Pay as well as tenure increases to his special pay computation based on his years of []VA service." Def.'s Mot. 4; see Pl.'s Mem. 28 (showing annual pay increases). By January of 2006, plaintiff was earning an annual salary of $187,957. Pl.'s Mem. 28; Def....