Morris v. Emory Clinic, Inc.

• Decision Date: 08 March 2005
• Docket Number: No. 04-15090 Non-Argument Calendar.,04-15090 Non-Argument Calendar.
• Citation: 402 F.3d 1076
• Parties: Brian MORRIS, Plaintiff-Appellant, v. EMORY CLINIC, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

402 F.3d 1076

Brian MORRIS, Plaintiff-Appellant, v. EMORY CLINIC, INC., Defendant-Appellee.

No. 04-15090 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

March 8, 2005.

Robert Milton Lewis, Jr., Meadows & Lewis, P.C., Stockbridge, GA, for Plaintiff-Appellant.

Burton Freeman Dodd, Fisher & Phillips, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, PRYOR and GODBOLD, Circuit Judges.

PER CURIAM:

This is an employment discrimination case brought by a male doctor, an obstetrician and gynecologist, against his employer, a medical school clinic, for age and sex discrimination. The doctor claims the university clinic fired him because it favored younger female doctors. The clinic asserts that the doctor was terminated as a result of patient complaints concerning his forceful physical examinations and off-color remarks he made on the ability of older patients to have children. The district court granted summary judgement for the university clinic. We affirm.

Dr. Brian Morris' tenure with Emory University School of Medicine began in 1995 when he was appointed to the faculty as an assistant professor. Along with his faculty appointment Morris was to work as an obstetrician and gynecologist at one of the University's Clinic locations around the Atlanta metropolitan area. Morris initially was assigned to the Clinic's location in nearby Fayetteville, Georgia. His employment was subject to termination by the University for any reason upon 90 days written notice. His supervisor at the Clinic was Dr. Penny Castellano who headed the Clinic's obstetrics and gynecology section.

In 2000 the University closed its Fayetteville Clinic location for financial reasons. Morris was reassigned to the Clinic's Crawford Long location, a large facility in Midtown Atlanta named after a prominent Georgia physician. He was also assigned to perform "back up" duties at the Clinic location on Clifton Road. The Clifton Road facility was located a short distance away from Crawford Long on the University's Medical School campus. Morris asserts — without explanation — that the Clifton Road location was favorable to Crawford Long. Morris submitted evidence that the Clinic ensured that both female and male doctors were located at the Clifton Road location. One administrator speculated that a reason for balancing the male to female physician ratio at a Clinic location was that some female patients might prefer to see female gynecologists. Both the Crawford Long and Clifton Road locations had male and female doctors.

After Morris moved to Crawford Long, he received a series of patient complaints that alleged he conducted forceful physical examinations and made disparaging remarks to patients over 40 seeking to have children. In March 2000 a patient called the Clinic to complain that, in response to her question whether the examination of her cervix would hurt, Morris "dug his nails into her ankle and asked her what she would say if something hurt." As Morris' supervisor Castellano was charged with investigating this complaint. She met with Morris to discuss the incident and informed him that she would raise the matter with Clinic administration personnel.

In December 2000 another patient wrote a letter criticizing the "forceful" and "rough manner" in which Morris conducted her examination. She also described several off-color remarks Morris made about her chances for pregnancy given her age. The patient wrote that Morris told her "the realities are that you have 42-year-old eggs, which means that it will be difficult for you to get pregnant." When she informed him that another physician in Washington, D.C. had success with pregnancies in women over the age of 40, Morris retorted "it does not change the statistics that you only have a 50% chance of getting pregnant." Morris recommended the patient see a fertility clinic to potentially qualify to receive an egg from a younger female. The patient wrote in her letter that she felt Morris had an underlying resentment of women who chose to postpone motherhood in favor of pursuing a career.

After receiving the letter Castellano and Paul Hammonds, Administrator of Primary Care, met with Morris to discuss the patient's complaints. During this meeting Castellano requested that Morris write a letter of apology to the patient. Castellano also suggested Morris view a video on patient care and advise her after he had viewed the tape. A letter of apology was drafted by Castellano and signed by Morris. Morris conceded that he may have been "less sensitive to the woman's needs that day" but felt that the patient had "overreacted." The tape was later sent to Morris' residence with what Morris viewed as a threatening note which he interpreted to mean "fly straight or you are going to be fired." Morris never reported to Castellano that he had viewed the tape.

Around the same period the Clinic sought to increase the number of physicians on staff. In February 2001 the Clinic made a job offer to Dr. Leslie Choy-Hee, a female physician in the residence program at the University's School of Medicine. The Clinic also extended an offer to Dr. Todd Bashuk, a male resident in the same program.

Two months later, in April 2001, another patient complained about Morris' harsh treatment of her during a physical examination which she characterized as "degrading." The patient complained that Morris had an "animosity toward women" and that his physical examination was "unnecessarily forceful compared to other pelvic exams she has had." She was ten weeks pregnant and complained that because she was 39 years old, had experienced one miscarriage, and an ovarian cyst, Morris informed her that she was the perfect candidate for follow-up with a mid-wife. When she expressed opposition to this idea he informed her that "this is not your call."

As evidence of the unnecessary force used during the examination the patient stated that she had been instructed by an assistant not to remove her bra prior to the examination. When Morris entered the examination room, however, and discovered the patient was wearing a bra, he became upset and "ripped it over her head." Morris disputed that he ripped off the patient's bra and speculated that he may have assisted her if she appeared to be struggling with removing it. This patient also complained that during the April visit Morris neglected to listen for the fetal heartbeat as was customarily done by an obstetrician. A few days after her examination she suffered a miscarriage and was told by an examining physician that the fetus was probably dead when she was examined by Morris. The physician noted that if Morris had listened for the heartbeat he would have detected the problem.

Her complaint however was not limited to Morris. The patient also complained that after her examination by Morris, while she was out of town she called the Clinic for a referral for her sister's obstetrician and spoke with Dr. Jessica Arluck. The patient thought she was having a miscarriage and did not want to go to the emergency room. She felt that Arluck was insensitive because she responded to her request for a referral with "no — I'm at home, either call the office or your insurance company." The Clinic did not view the patient's complaint against Arluck in the same light as her allegations against Morris.

Castellano was alarmed by the allegation concerning the bra and suggestion that the patient see a midwife against her wishes — particularly in light of the prior complaints. She began discussing firing Morris with the other physicians at the Clinic including Dr. Arluck. Arluck volunteered that she "wanted [Morris] out of the practice" because of the continuing problem with Morris' treatment of his patients. She indicated that the practice group at the Clinic would rather work harder than have Morris damage the reputation of the Clinic.

In May 2001 Castellano and Hammonds met with Morris and informed him that he was being placed on administrative leave. Morris understood that this action was undertaken so that the Clinic could conduct an investigation into the complaints. He maintains that he was not provided with specific details of the undergarment incident. Following this meeting a letter was sent to Morris. It stated that Morris was placed "on an Administrative Leave of Absence (with pay) pending further investigation." After the meeting Castellano spoke with different physicians and administrators regarding the complaints against Morris and his treatment of his patients.

Two weeks later Castellano and Hammonds met with Morris again. According to them, during this meeting they presented Morris with an overview of the two most recent complaints against him and provided him with an opportunity to rebut any of the allegations. Morris says that this meeting did not provide any meaningful opportunity to explore the allegations and that he did not comment on the complaints at the meeting. Castellano offered Morris the option of resigning rather than having the Clinic terminate his employment. Morris opted not to resign. As a consequence, Castellano sent Morris a letter dated May 25, 2001 providing him with 90 days notice of his termination pursuant to the employment agreement. It stated that Morris' employment with the Clinic was terminated effective August 23, 2001 and that he would remain on administrative leave until that date. Until this time he would continue to receive his salary but could not see any patients at the Clinic.

During the summer of 2001 both Bashuk and Choy-Hee accepted their employment offers and began working at the Clinic. Choy-Hee started on August 1, 2001, over two months after Morris' discharge. She split her time between Crawford Long and Clifton Road. Morris contends that the majority of her time was spent at Clifton Road. Bashuk began working on July 15, 2001. He also...