Jeannie Blom v. Wellstar Health System, Inc., et al

Filing

Opinion issued by court as to Appellant Jeannie Blom. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11893
________________________
D.C. Docket No. 1:10-cv-00773-JOF

DR. JEANNIE BLOM,
Plaintiff-Appellant,
versus
WELLSTAR HEALTH SYSTEM, INC.,
DR. RICHARD HART,
Defendants-Appellees,
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 27, 2014)
Before PRYOR and MARTIN, Circuit Judges, and GOLD,∗ District Judge.
PER CURIAM:

*

Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.

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Dr. Jeannie Blom appeals the district court’s grant of summary judgment in
favor of her former employer WellStar Health System, Inc. Specifically, she
challenges the district court’s rulings on her claims of gender discrimination and
quid pro quo sexual harassment under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2, and retaliation under the Family Medical Leave Act (FMLA),
29 U.S.C. § 2615(a). After careful review and with the benefit of oral argument,
we affirm.
I.
A. FACTUAL BACKGROUND
Blom was hired by WellStar pursuant to an employment agreement in 2000.
She served as WellStar’s Medical Director of the Cobb Hospital Rehabilitation
Unit. The employment contract provided that WellStar could terminate the
agreement at any time without cause.
Hospital rehabilitation medicine is one of the most regulated and audited
areas of medicine. WellStar had concerns about three aspects of Blom’s billing
practices: (1) insufficient documentation of procedures; (2) coding above national
benchmarks, which means her billing showed she was performing more timeconsuming and expensive procedures more often than other physicians in her
practice area across the country; and (3) billing through her own provider number
when she was using another physician to cover her. WellStar was particularly
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concerned about Blom’s practice of coding above national benchmarks because it
believed that increased the likelihood of a time-consuming and expensive
Medicare audit.
As to the first issue—inadequate documentation of services provided—in
2006 Blom failed a random coding audit. She then worked with various WellStar
employees to improve her coding accuracy and documentation. She later received
a very high audit score of 96%. There are emails showing she was very
cooperative and receptive to feedback in this area and worked hard to improve,
which WellStar does not dispute.
On the second issue—coding above national benchmarks—the record shows
that Blom was resistant to change. During Blom’s employment with WellStar,
David Anderson was the Executive Vice President for Human Resources and Chief
Compliance Officer and one of the decision makers for Blom’s termination. He
testified that Blom was consistently discussed at quarterly compliance meetings
because her billing percentages for high-cost services were above national
benchmarks. The emails between the parties that address this issue show that in
comparison to her response to improving her audit scores, Blom was less receptive
to change, and even defensive. In middle and late 2007 there was a meeting and
correspondence about her national benchmark comparisons at which time WellStar
insisted that she change her practices or face termination. This correspondence
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also shows continuing problems with the third issue, Blom’s practice of billing
under her own provider number when she was away and other physicians were
providing services to her patients.
Around this same time, Blom was also the primary care giver for several ill
family members. Blom claimed WellStar interfered with her ability to care for
these family members. In support of this claim, she offers her correspondence with
WellStar about coverage issues, including one letter in which she claims she had
arranged for coverage so that she could be with her father during a surgery but was
still called to attend to matters at the hospital.
In February 2008, just before Blom’s termination, WellStar’s compliance
hotline received an anonymous complaint that Blom was not fulfilling her duties
and was falsifying documentation, both serious allegations of Medicare fraud.
WellStar investigated the complaint and ultimately concluded that the allegations
were unfounded because it could not tie any fraudulent coding or billing to any
specific patients and Blom denied any wrongdoing. However, the investigation
revealed other serious concerns about Blom’s performance as Medical Director,
including that:
•

she did not typically come in during day time hours;

•

when she came in she stayed on the unit an average of two to three
hours and spent most of that time in her office;
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she was often not present during the discharge process, although the
discharge summary requires a face-to-face patient encounter on the
day of discharge;

•

she sometimes came in at midnight and wrote a progress note for the
current day and one for the next day, and then did not come back the
next day;

•

she “popped in” on patients but was rarely performing exams,
although she often documented an exam on every patient;

•

orders she wrote late in the evening caused the nurses to wake patients
up, transfuse at night, etc., interrupting the nurses’ normal routine;

•

she did not always meet with her entire team on team conference day;

•

she often arrived one to three hours late for team conferences, and two
of the four team conferences scheduled in January did not occur;

•

when she was late or cancelled team conferences it affected the work
of the therapists and social workers because they could not schedule
therapy during that time;

•

staff seemed dejected and resigned, and some fearful about answering
questions; and

•

taken together, these matters raised serious concerns about whether
her billing and documentation were appropriate.
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Bruce Harrison, WellStar’s Senior Vice President of Physician Services and the
other decision maker in this case, communicated some of these concerns to Blom
by letter in February 2008.
During her employment with WellStar, Blom had an affair with a senior
WellStar employee, Dr. Richard Hart. The affair ended in 2006 about two years
before Blom was fired. When the affair started, Hart was WellStar’s Medical
Director for the Physicians Group. That position involved being the point person
for physicians in or joining the WellStar group. While he was in that position, he
and Blom began having lunch because she was having problems working with the
directors of rehabilitation at WellStar’s other hospitals. Blom claims that during
the affair Hart told her that he was protecting her from people who sought to harm
her career and that she would experience difficulties at WellStar without his
protection.
In 2004 Hart was appointed to be Medical Director at WellStar’s Douglas
and Paulding Hospitals. As a result, from 2004 forward he did not have medical
director responsibilities at Cobb Hospital where Blom worked.
Neither Blom nor Hart disclosed their affair to anyone at WellStar. Prior to
the decision to terminate Blom’s employment contract, decision makers Anderson
and Harrison did not know about the affair.

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Blom claims, relying on her own affidavit, that in March 2008, about two
weeks before she was terminated, Hart began calling her although they had not
spoken for almost two years. She testified to a number of specific statements that
Hart made about how she was being discriminatorily treated based on her gender
and set-up to be fired because the men at WellStar were jealous of her success.
Blom further testified that Hart said he could help her, but that he had to “get
together” with her first. Based on their communications during their affair, Blom
interpreted this phrase as Hart asking her for physical intimacy in exchange for his
help.
WellStar contends that after the hotline investigation, Anderson concluded
that Blom was a compliance risk and that she had failed to conduct herself in a
manner consistent with WellStar’s expectations for a medical director. Based on
these conclusions, he recommended that WellStar terminate Blom’s employment
contract. Harrison followed Anderson’s advice and terminated Blom’s
employment agreement without cause on March 19, 2008.
B. PROCEDURAL HISTORY
Blom filed suit against WellStar and Hart in March 2010. After discovery,
Hart filed for summary judgment, which Blom did not contest. WellStar also
moved for summary judgment and the district court granted judgment to WellStar
on all counts. Blom now appeals the district court’s order as to three of her
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original claims against WellStar: (1) Title VII gender discrimination for her
termination; (2) retaliation under FMLA; and (3) quid pro quo sexual harassment.
II.
We review de novo the district court’s grant of summary judgment. Skop v.
City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment is
appropriate only when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
making this determination, we view the evidence and all factual inferences in the
light most favorable to the non-moving party. Skop, 485 F.3d at 1136.
“The district court’s evidentiary rulings are reviewed for abuse of discretion
and will be reversed only if an erroneous ruling resulted in substantial prejudice.”
Cynergy, LLC v. First Am. Title Ins. Co., 706 F.3d 1321, 1326 (11th Cir. 2013)
(internal quotation marks omitted). “This Court will affirm such rulings unless the
district court has made a clear error of judgment or has applied an incorrect legal
standard.” Id. (internal quotation marks omitted).
III.
A.

TITLE VII GENDER DISCRIMINATION

Blom appeals the grant of summary judgment for WellStar on her Title VII
gender discrimination claim, arguing that she sufficiently rebutted each of
WellStar’s proffered reasons for her termination and demonstrated a material
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dispute of fact as to whether she was the victim of intentional discrimination. Title
VII prohibits employment discrimination on the basis of sex. See 42 U.S.C. §
2000e-2(a). In cases involving circumstantial evidence of discrimination we apply
the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817 (1973). Under McDonnell Douglas a plaintiff must first
establish a prima facie case of discrimination. Holland v. Gee, 677 F.3d 1047,
1055 (11th Cir. 2012). Then the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its actions. Id.
If the employer identifies a legitimate, nondiscriminatory reason for its
decision, the burden shifts back to the plaintiff to demonstrate that the proffered
reason was not the true reason for the employment decision. Id. The plaintiff
“cannot recast the reason but must meet it head on and rebut it.” Id. (quotation
marks omitted). At this stage, the plaintiff’s burden of rebutting the employer’s
proffered reasons also merges with the plaintiff’s ultimate burden of persuading the
finder of fact that she has been the victim of intentional discrimination. Id. at
1056. The dispositive issue in this case is this final step—whether Blom
adequately rebutted each of WellStar’s reasons for her termination and presented
sufficient evidence that would allow a reasonable jury to conclude WellStar was
motivated by discrimination. Id.

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WellStar relied on three legitimate nondiscriminatory bases for Blom’s
termination: (1) concerns about Blom’s coding; (2) performance issues that came
to light during the hotline investigation; and (3) concerns that Blom was a
compliance risk and behaved in ways that were inconsistent with being a medical
director. Blom must rebut each of the reasons to survive a motion for summary
judgment. Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en
banc).
Blom’s main argument is that WellStar’s reasons for her termination and the
testimony of WellStar employees about these reasons are contradicted by
WellStar’s own documents. Based on this, Blom claims the district court
improperly made credibility determinations and failed to view the evidence in the
light most favorable to her. Our review of the record does not support this claim.
Although Blom arguably has identified some conflicts and inconsistencies, they do
not relate to WellStar’s main concerns. Neither does she point to any significant
evidence of gender bias to allow an inference that discrimination was the true
motivation for WellStar’s actions.
First, Blom fails to present evidence that WellStar’s concerns about her
coding practices were pretextual. In discussing this reason for her termination,
Blom focuses almost entirely on her audit scores. But correspondence between the
parties shows that WellStar was not concerned with Blom’s audit scores. It was
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her coding above national benchmarks that was WellStar’s focus. This
correspondence also demonstrates that Blom knew about WellStar’s concerns but
felt her billing practices were valid and she resisted changing them.
In rebuttal Blom argues that an inference of pretext can be drawn from the
fact that WellStar departed from its usual practice of deferring to its coding and
compliance experts, who had recommended conducting an external peer review of
Blom’s billing. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,
1299 (11th Cir. 2006) (“[A]n employer’s deviation from its own standard
procedures may serve as evidence of pretext[.]”). However, the record does not
reflect that WellStar had a usual practice of deferring to its coding experts or
conducting external peer reviews before making personnel decisions. It only
shows that Anderson testified that his coding staff would know the answers to
technical questions that he could not answer, such as the criteria for being
identified as coding above national benchmarks. The fact that WellStar did not
have a usual practice in a situation like Blom’s is further demonstrated by the fact
that she was the only physician regularly discussed and finally terminated for
compliance-related issues during Anderson’s tenure at WellStar.
While Blom’s failure to rebut WellStar’s concerns about her national
benchmark comparisons is sufficient alone to support judgment in favor of
WellStar, Blom also fails to rebut WellStar’s concerns that came to light after the
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hotline investigation.1 Although there was no ultimate finding of wrongdoing, the
investigation, which included interviews with sixteen members of Blom’s
department, raised serious concerns about her performance as Medical Director.
Rather than directly address these concerns, Blom argues that a jury could
draw inferences from Harrison’s February 2008 letter—sent right before her
termination—that would allow them to conclude that WellStar was not genuinely
concerned about the hotline complaint investigation. She argues first that the fact
that Harrison attached a new employment contract for her to sign, even after the
investigation was mostly complete, suggested that he was not genuinely
concerned. 2 Second, she argues that Harrison’s letter says he would raise “any
additional concerns” that come out of the investigation with her at a later date, but
never did.
In contrast to Blom’s view, our review of the record indicates that Harrison
was genuinely concerned about the investigation. Harrison’s letter voices
unambiguous concern when he states, “I want to take this opportunity to ensure
1

Because we conclude Blom failed to rebut WellStar’s first two reasons for her termination, we
do not consider WellStar’s third proffered rationale for its decision. See Chapman, 229 F.3d at
1037.
2
Blom also argues that a reasonable jury could find pretext because Anderson testified that none
of his concerns were violations of Blom’s contract. This argument distorts the nature of the
parties’ employment contract. Although the contract did set forth some specific situations in
which the contract may be terminated for cause—such as revocation of the physician’s medical
license—it also permitted either party, without cause, to terminate with 90-days notice, as was
done here.

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that there is no uncertainty related to various issues which have recently arisen
related to your services provided to the inpatients of the Cobb Hospital Rehab
Unit.” The letter also echoes some of the problems raised by the hotline complaint
investigation, including concerns about Blom’s hours and attendance at team
conference meetings.
Neither does the record support Blom’s characterization of the letter as
offering her a new employment contract. The letter says: “it has come to my
attention that you have not executed the Amended and Restated Physician Services
Agreement and Medical Director letter agreement which were provided to you last
year.” In asking her to sign and return the last contract on file, Harrison’s letter
was not inviting Blom to extend her employment with WellStar, but rather
addressing her failure to sign and return the contract from last year.
The record also contradicts Blom’s other claimed inference—Harrison’s
failure to raise “any additional concerns which may arise from the investigation.”
WellStar terminated Blom’s contract less than three weeks after Harrison’s letter,
during which time WellStar did raise its concerns with Blom by meeting with her
to discuss the hotline investigation and informing her of her termination.
Blom also fails to present sufficient evidence that would allow a jury to find
that she was the victim of discrimination. On this point Blom offers the following
evidence: (1) WellStar did not terminate or discipline a number of male physicians
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who also failed audits; and (2) Hart’s statements to her provided evidence of
WellStar’s gender bias.
First, as to the comparator evidence, Blom argues the district court erred in
concluding that her proffered male comparators were not similarly situated. In
rejecting Blom’s thirteen male comparators, the district court found “there is no
evidence in the record that they also had problems with national benchmarks, that
their supervisors found them to be uncooperative, or that a complaint had been
made against them to the compliance hotline.”
The fact that Blom had additional areas of friction with WellStar and was
not just fired for coding issues makes these other physicians, who we only know
are male and failed audits, inappropriate comparators. Rioux v. City of Atlanta,
520 F.3d 1269, 1280 (11th Cir. 2008) (“The quantity and quality of the
comparator’s misconduct must be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.”
(internal alterations and quotation marks omitted)). Also, Blom’s comparator
evidence yet again focuses on audit results, not national benchmark comparisons.
As a result, even putting aside Blom’s cooperation and performance issues, her
comparators are inadequate because she did not offer evidence of male doctors
who were not fired despite coding above national benchmarks.

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Second, Blom argues that the district court failed to consider evidence of
WellStar’s gender bias by improperly excluding Hart’s statements, which Blom
offered through her own affidavit. Blom argues Hart’s statements are admissible
as non-hearsay under Federal Rule of Evidence 801 as a statement “offered against
an opposing party” and “was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed.” Fed. R. Evid.
801(d)(2)(D); see also Miles v. M.N.C. Corp., 750 F.2d 867, 874–75 (11th Cir.
1985) (finding statement made by employee with influence over employment
decisions was admissible under Rule 801(d)(2)(D)). The district court rejected this
argument because there was no record evidence showing Hart’s “position was of
such rank or importance or that he was so involved with the decisionmaking
process for [Blom’s] termination that any comment by him could be considered the
admission of a party opponent.”
We find no abuse of discretion in the district court’s finding. Although in
some situations an employee may testify about statements made by his supervisor
regarding company policy toward a protected group of employees, Blom’s attempt
to rely on the double-hearsay statements in her affidavit fails because there is no
evidence that Hart was her supervisor or had authority to speak for WellStar on
personnel matters. Zaben v. Air Products & Chemicals, Inc. 129 F.3d 1453, 1456–
57 (11th Cir. 1997). At the time of his alleged statements, Hart was the Medical
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Director at two hospitals where Blom did not work. Blom also admitted they had
not spoken in nearly two years. In her deposition Blom testified only that she
“would assume” the decision makers were interacting with Hart. Because of her
failure to offer evidence that Hart was her supervisor or that he had authority to
speak for WellStar on personnel matters related to her, we see no error in the
district court’s ruling.
Because we conclude that Blom has failed to present evidence that would
allow a jury to conclude that WellStar’s reasons for her termination were
pretextual or motivated by gender bias, we affirm the grant of summary judgment
on her Title VII gender discrimination claim.
B.

FMLA RETALIATION

Blom also claims the district court erred in granting judgment for WellStar
on her FMLA retaliation claim, relying on the same arguments and evidence of
pretext that she presented in defense of her Title VII gender discrimination claim.
We similarly conclude that she has failed to rebut and show pretext as to
WellStar’s proffered reasons for her termination, and therefore affirm the grant of
summary judgment on this claim.
C.

Quid Pro Quo Sexual Harassment

Lastly, Blom challenges the district court’s finding that she did not establish
causation for her quid pro quo sexual harassment claim. Because Blom has not
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established a material dispute of fact as to whether Hart was her supervisor or a
decision maker who could influence her employment, she has not shown a
sufficient causal link between Hart’s conduct and WellStar’s termination decision
to create a jury question. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d
1305, 1312 (11th Cir. 2001) (affirming grant of summary judgment where
Frederick failed to present sufficient evidence to establish any causal link between
the adverse tangible employment action she suffered and the alleged harassment).
We therefore affirm the grant of judgment for WellStar on Blom’s quid pro quo
sexual harassment claim.
III.
For these reasons, the district court’s order is AFFIRMED.

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