Meyer v. McDonald
| Decision Date | 17 March 2017 |
| Docket Number | 15–CV–1496 |
| Citation | 241 F.Supp.3d 379 |
| Parties | Jill S. MEYER, M.D., Plaintiff, v. Robert MCDONALD, Secretary, Department of Veteran Affairs, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Alan E. Wolin, Wolin & Wolin, Esqs., 420 Jericho Turnpike, Suite 215, Jericho, NY 11753, for Plaintiff
Rukhsanah L. Singh, United States Attorney's Office for the Eastern District, 271 Cadman Plaza East, Brooklyn, NY 11201, for Defendant
III. Facts...385
IV. Law...388
V. Application of Law to Facts...390
This decision holds that without violating age discrimination protections, an employer may give substantial weight in hiring to board certifications of medical candidates, or in advertising job openings.
Plaintiff Jill S. Meyer brings this action pursuant to the Age Discrimination in Employment Act ("ADEA"). Alleged are age discrimination and retaliation. She is a psychiatrist formerly employed by the United States Department of Veterans Affairs ("agency" or "VA"). Defendant is the United States Secretary of the VA, David Shulkin. Formerly the VA head was the named plaintiff, Robert McDonald. Plaintiff's claims arise from her non-selection for a position of staff psychiatrist at the VA New Jersey Health Care System ("NJ–VA").
Defendant moves for summary judgment, arguing that: —(1) plaintiff cannot establish a prima facie claim of age discrimination or retaliation; and (2) defendant had a legitimate non-discriminatory and non-retaliatory reason for not selecting plaintiff for the position of staff psychiatrist at the NJ–VA –she was not board certified, but the persons selected were.
Defendant's motion for summary judgment is granted.
Board certification is regulated by numerous board certifying bodies in the United States, including the American Board of Medical Specialties ("ABMS") and the American Board of Physician Specialties ("ABPS"). See Board Certification and Maintenance of Certification , ABMS, http://www.abms.org/board-certification/. "Patients, physicians, health care providers, insurers, and quality organizations look for these markers as the best measure of a physician's knowledge, experience and skills to provide quality health care within a given specialty." Id. See also Board Certification and Maintenance of Certification , ABMS, http://www.abms.org/board-certification/; Physician Board Certification Defined , ABPS, http://www.abpsus.org/physician-board-certification-defined.
The process for obtaining board certification for a specific area of medicine "involves a rigorous process of testing and peer evaluation that is designed and administered by specialists in the specific area of medicine." Id. Dr. Maureen Kaune, an employee of defendant in the instant case, testified that board certification through the American Board of Psychiatry and Neurology, Inc. ("ABPN"), which is a Member Board of the ABMS, is "a very rigorous process," which allows a board certified doctor to be "recognized as one of those experts in [his or her] field." See Decl. of Rukhsanah L. Singh in Supp. of Def.'s Mot. for Summ. J., August 3, 2016, ECF No. 26 ("Singh Decl."), at Ex. P, ECF No. 26–2 at 98:8–99:13.
The minimum eligibility requirements for board certification differ among various member boards. The ABMS requires that doctors—after completing their college premedical education, medical school education, and three to five year residency training program—"[p]rovide letters of attestation from their program director and/or faculty" and "[p]ass a written and, in some cases, an oral examination created and administered by an ABMS Member Board." Steps Toward Initial Certification and MOC , ABMS, http://www.abms.org/board-certification/steps-toward-initial-certification-and-moc/. See also Pl.'s Statement on the Issue of Board Certification, Dec. 14, 2016, ECF No. 41 ( ); Suppl. Mem. of Law in Further Supp. of Def.'s Mot. for Summ. J., Dec 23, 2016, ECF No. 42 ( ).
Doctors who wish to obtain board certification in psychiatry through the ABPS must take a written and an oral exam. Board of Certification in Psychiatry , ABPS, http://www.abpsus.org/psychiatry. In order to be eligible for these tests, a doctor must, among other requirements, be in compliance with the ABPS's Code of Ethics, have completed an accredited residency in psychiatry, submit letters of recommendation, provide a document report of a minimum of 10 psychiatry cases which the applicant had the lead role in managing, consent to a background check, and pay relevant fees. Psychiatry Eligibility , ABPS, http://www.abpsus.org/psychiatry-eligibility.
In addition to obtaining board certification for an area of medical specialty like psychiatry, doctors can also take subspecialty exams, which are subject to their own eligibility requirements. Taking a Subspecialty Exam , ABPN, https://www.abpn.com/become-certified/taking-a-subspecialty-exam/.
Once a doctor has obtained a board certification, she must periodically recertify "by participating in a robust continuous professional development program." Steps Toward Initial Certification and MOC , ABMS, http://www.abms.org/board-certification/steps-toward-initial-certification-and-moc/. Doctors board certified in psychiatry through the ABPS must complete Continuing Medical Education hours to maintain certification. Psychiatry Recertification , ABPS, http://www.abpsus.org/psychiatry-recertification. The ABPN requires a recertification examination "at least once every 10 years for each certification." Program Requirements , ABPN, https://www.abpn.com/maintain-certification/maintenance-of-certification-program/program-requirements/.
Board certification can benefit patients because it provides strong evidence that a doctor has stayed up-to-date with medical standards, patient care, and medical ethics. See, e.g. , About Board Certification , ABMS, http://www.certificationmatters.org/about-board-certified-doctors/about-board-certification.aspx; Physician Board Certification Defined , ABPS, http://www.abpsus.org/physician-board-certification-defined.
Board certified physicians must have demonstrated their ability to offer reasonable and safe treatment plans that comply with current clinical standards. This allows patients to make more informed choices when selecting healthcare providers. Def.'s Suppl. Mem. at 4; see Decl. of Saila B. Donepudi, M.D. in Supp. of Def.'s Suppl. Mem., Dec. 7, 2016, ECF No. 42–2 ("Donepudi Decl. 2"), at ¶ 10. The required Maintenance of Certification program ensures that doctors keep up with ever-changing industry standards. Def.'s Suppl. Mem. at 3–4.
Because board certified doctors are also evaluated on grounds of professionalism, they instill confidence about their ethical values in their patients. Def.'s Suppl. Mem. at 4–5; Donepudi Decl. 2, at ¶ 10. Having physicians known to be highly trained may put a patient at ease during a time of stress, and help cultivate a stronger physician-patient relationship.
Doctors may benefit from board certification because the classification indicates that a doctor has qualified knowledge in a particular field. Def.'s Suppl. Mem. at 5; Donepudi Decl. 2 ¶ 9. This may increase a physician's value; certification signals to a patient and employer that a doctor has the requisite knowledge to successfully complete the certification testing process. Rebecca Clay, Gaining Specialty Certification, AMERICAN PSYCHOLOGY ASSOCIATION , http://www.apa.org/gradpsych/2010/03/specialty-certification.aspx.
The requirements doctors must meet to maintain certification can safeguard against outdated treatment methods. Mission and History , ABPN, https://www.abpn.com/about/mission-and-history/. This creates a unified standard and measure of evaluating peer competency. Rebecca Clay, Gaining Specialty Certification, AMERICAN PSYCHOLOGY ASSOCIATION , http://www.apa.org/gradpsych/2010/03/specialty-certification.aspx.
Board certified physicians may earn a higher salary based on their qualifications. Employers such as the NJ–VA offer higher compensation for board certified physicians as compared to non-board certified physicians. Def.'s Suppl. Mem. at 5; 38 U.S.C. § 7431(c)(4)(D) ().
Because board certification is based on nationally recognized standards of competent medical treatment, employers can benefit from hiring board certified doctors. Def.'s Suppl. Mem. at 6. Certification indicates to patients that the employer will provide treatment by highly qualified physicians who...
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