Eisenberg v. The Permanente Medical Group et al

Filing 78

ORDER by Judge Hamilton Granting #40 #42 Motions for Summary Judgment (pjhlc2, COURT STAFF) (Filed on 1/20/2012)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6
ELLIOT EISENBERG,
7
Plaintiff,

No. C 10-3208 PJH

8
v.

ORDER GRANTING MOTION
FOR SUMMARY JUDGMENT

9
THE PERMANENTE MEDICAL GROUP,
et al.,

11
For the Northern District of California

United States District Court

10

Defendants.
_______________________________/

12
13

Defendants’ motions for summary judgment came on for hearing before the court on

14

December 14, 2011. Plaintiff Elliot Eisenberg (“plaintiff” or “Eisenberg”) appeared through

15

his counsel, William Rogers. Defendants The Permanente Medical Group (“Kaiser Medical

16

Group”), Kaiser Foundation Health Plan (“Kaiser Health Plan”) and Kaiser Foundation

17

Hospitals (“Kaiser Hospitals”)(all collectively “defendants”) appeared through their

18

respective counsel, Wendy Lazerson, and Kari Erickson Levine. Having read all the papers

19

submitted and carefully considered the relevant legal authority, the court hereby GRANTS

20

defendants’ motions for summary judgment, for the reasons stated at the hearing, and as

21

follows.
BACKGROUND

22
23

This is an action brought under the Americans with Disabilities Act (“ADA”), and Title

24

VII.1 Plaintiff has filed suit against defendants Kaiser Medical Group, Kaiser Health Plan,

25

and Kaiser Hospitals.

26
27
28

1

Plaintiff originally asserted a claim under the Age Discrimination in Employment
Act (“ADEA”). However, as confirmed at the hearing on the instant motions, plaintiff has now
withdrawn the ADEA claim.

1

A.

Undisputed Background Facts

2

Kaiser Hospitals, Kaiser Medical Group, and Kaiser Health Plan are distinct legal

3

entities. Kaiser Health Plan is a nonprofit, public benefit corporation. It is licensed as a

4

health care service plan and regulated by the California Department of Managed Health

5

Care. It enrolls members in individual and group health care plans, and in Northern

6

California, provides hospital and medical services for its members through separate

7

contracts with Kaiser Hospitals and Kaiser Medical Group. Declaration of Victoria Zatkin

8

ISO Mot. Summ. Jugdment (“Zatkin Decl.”), ¶ 3. Kaiser Hospitals is also a nonprofit, public

9

benefit corporation that owns and operates hospitals in California and other states. It
provides hospital services for Kaiser Health Plan members through a written contract with

11
For the Northern District of California

United States District Court

10

Kaiser Health Plan called the Hospital Services Agreement. See Zatkin Decl., ¶ 4. Finally,

12

Kaiser Medical Group is a professional corporation privately owned and managed by its

13

physician shareholders. The individual physicians are licensed and regulated by the

14

Medical Board of California. The Kaiser Medical Group contracts with Kaiser Health Plan

15

to provide medical services for Kaiser Health Plan members through a written contract

16

called the Medical Services Agreement. Kaiser Hospitals, Kaiser Medical Group, and

17

Kaiser Health Plan work in cooperation with each other to provide integrated medical care

18

services under the name known to the general public as Kaiser Permanente.

19

Each Kaiser Hospital – including Kaiser Hospital Vallejo (“Kaiser Vallejo”), where

20

plaintiff worked – has a Professional Staff Executive Committee (“PSEC”) which accepts

21

recommendations from the Credentials and Privileges Committee (“CP Committee”)

22

regarding physician qualifications for membership on the medical staff and for clinical

23

privileges. The PSEC is responsible for making recommendations for final action on

24

physician privileges to the Kaiser Hospitals Board of Directors. The CP Committee also

25

makes all credentialing decisions on behalf of Kaiser Health Plan, which requires that any

26

physicians treating Kaiser Health Plan members be credentialed.

27

Plaintiff Eisenberg was a physician ophthalmologist, and a shareholder and member

28
2

1

of Kaiser Medical Group; he was not an employee of Kaiser Hospitals or Kaiser Health

2

Plan. See Zatkin Decl., ¶¶ 3-4. He was credentialed by Kaiser Health Plan to provide

3

patient care services to members of Kaiser Health Plan. He was also a member of the

4

medical staff at Kaiser Vallejo Hospital and had surgical privileges to perform designated

5

ophthalmological procedures. See Declaration of Steven Stricker ISO Mot. Summ.

6

Judgment (“Stricker Decl.”), ¶ 7. Plaintiff joined Kaiser Medical Group full time in 1987. He

7

has never been subjected to a malpractice action, nor has he received a pre-lawsuit notice

8

of the intent to file a malpractice action. See Declaration of Elliot Eisenberg ISO Mot.

9

Summ. Judgment Opp. (“Eisenberg Decl.”, ¶ 2.
B.

Events Leading to Plaintiff’s Employment Termination/Fair Hearing

11
For the Northern District of California

United States District Court

10

Concerns with plaintiff’s practice began as early as 1997. See Declaration of Ellen

12

Kolarik ISO Mot. Summ. Judgment (“Kolarik Decl.”), ¶¶ 2-3. The Chief of Ophthalmology,

13

Dr. Ellen Kolarik, personally received complaints from other physicians and members of

14

clinical and non-clinical staff. Complaints centered on plaintiff’s lack of collegiality, refusal

15

to take on emergency cases or his share of the workload. See id. On more than one

16

occasion, plaintiff was criticized by peer physicians for refusing difficult cases or referring

17

them to other hospitals without obtaining the requisite approval from Dr. Kolarik. Id. On

18

other occasions, peer physicians raised concerns to Dr. Kolarik about the quality of care

19

plaintiff was providing patients. Id. Plaintiff also received low scores on Measure of Patient

20

Satisfaction surveys. Stricker Decl., ¶ 8.

21

In May 2003, plaintiff – who asserts that his relationship with his supervisor Dr.

22

Kolarik, has been one of conflict – filed his first formal complaint against Dr. Kolarik. He

23

then filed another one year later, in May 2004. Eisenberg Decl., ¶¶ 10-11, Exs. 3-4.

24

In 2004, Dr. Kolarik and Dr. Stricker – Chief of Staff for Kaiser Vallejo – required that

25

plaintiff complete a quality improvement program involving a partnership with another

26

physician to learn about that physician’s practice techniques and to have the physician give

27

plaintiff advice on patient interactions. See Kolarik Decl., ¶ 4. Plaintiff was supposed to

28
3

1

start the program in 2004 and complete it by 2005, but by 2008, still had not completed the

2

program. Id.

3

Also in 2004, Dr. Kolarik reduced plaintiffs’ staff privileges regarding retinal

4

procedures. The reason for the reduction was that plaintiff had not performed a certain

5

volume of retinal procedures during the previous years. Plaintiff, however, had not

6

previously been informed that there was a certain volume of procedures necessary to

7

maintaining privileges regarding retinal procedures. Eisenberg Decl., ¶ 12.

Department for peer review. The cases were forwarded because other physicians giving

10

follow up care for plaintiff’s patients had raised concerns about plaintiff’s prior treatment of

11
For the Northern District of California

In August 2006, Dr. Kolarik forwarded four of plaintiff’s cases to the Quality

9

United States District Court

8

patients. See Declaration of Robert Quon ISO Mot. Summ. Judgment (“Quon Decl.”), ¶¶ 2-

12

3. All four cases were reviewed by the Surgical Services Peer Review Committee, and all

13

four cases were ultimately rated deficient: three received a rating of Standard of Care

14

(“SOC”)-2 (which means “significant opportunity for improvement”), and one received a

15

rating of SOC-1 (which means “improvement opportunity identified”). Quon, Decl., ¶ 5,

16

Exs. F & G.

17

Meanwhile, the high incidence of deficient cases reviewed by the Quality

18

Department prompted Dr. Robert Quon, Chief of the Quality Department, to undertake a

19

Focused Practitioner Review, pursuant to Kaiser Hospital policy. A Focused Review is

20

triggered when serious concerns about a physician’s quality of care have been raised. See

21

Quon Decl., ¶¶ 6-7, Exs. H-I. As part of the Focused Practitioner Review, Dr. Quon used

22

diagnostic codes to identify representative cases of plaintiff’s to be pulled from the prior two

23

year period. In August 2007, two ophthalmologists, Drs. Diamant and Doyle, then reviewed

24

patient charts from a total of 65 surgical cases that had been selected based on the criteria

25

established by Dr. Quon. Quon Decl., ¶¶ 6-7. Of these 65 cases reviewed, ten received

26

scores of P-2, and twenty received scores of P-1 (the ratings had changed from SOC

27

ratings, and P-2 means significant deviation from standard of care, and P-1 means minor

28
4

1

opportunity for improvement). Quon Decl., ¶ 9. Thus, 44% of the cases were rated as

2

problematic, and represented one of the worst Focused Practitioner Review results that Dr.

3

Quon had seen in his tenure. Quon Decl., ¶ 9.
Associate Physician in Chief at Kaiser Hospital Vacaville, Dr. John Hills, an

4
5

ophthalmologist, then was asked to review the ten P-2 cases, and to perform a synthesis of

6

the results and to place them in context with respect to acceptable practice patterns for an

7

ophthalmologist at Kaiser Hospitals/Kaiser Health Plan. Dr. Hills did not disagree with the

8

scoring of these cases, and stated that the results created “considerable concern about

9

broad aspects of care in the outpatient practice of ophthalmology.” See Quon Decl., ¶ 10,

11
For the Northern District of California

United States District Court

10

Ex. K.
Plaintiff was given the opportunity to review and respond to the Focused Practitioner

12

Review results, and he submitted a written response. Quon Decl., ¶ 11, Ex. L. Plaintiff’s

13

comments were provided to the Surgical Services Peer Review committee, and that group

14

reviewed all comments with input from ophthalmology specialists. As a result, one of

15

plaintiff’s scores went from a P-2 to a P-1 rating, while all others were affirmed. Quon

16

Decl., ¶ 11, Exs. L-M.

17

The final results of the Focused Practitioner Review, and plaintiff’s response thereto,

18

were submitted to the Kaiser Health Plan and Kaiser Hospital’s CP Committee (which, as

19

noted at the outset, is responsible for all credentialing decisions related to Kaiser Health

20

Plan, and which recommends membership decisions to Kaiser Hospital’s Professional Staff

21

Executive Committee). On April 9, 2008, the CP Committee voted unanimously to

22

terminate plaintiff’s Kaiser Health Plan credentials, and to recommend that plaintiffs’ Kaiser

23

Hospital privileges be revoked, subject to all hearing rights. See Stricker Decl., ¶ 14; Quon

24

Decl., ¶ 12. The CP Committee then in fact recommended to the PSEC that plaintiff’s

25

privileges and staff membership be revoked. Stricker Decl., ¶ 16. The PSEC agreed and

26

on June 6, 2008, the Vallejo Hospital’s PSEC informed plaintiff that it had recommended to

27

the Kaiser Hospital Board of Directors that all privileges and staff membership be revoked.

28
5

1

Stricker Decl., ¶ 16, Ex. E.

2

On May 11, 2008, plaintiff requested a hearing by the Judicial Review Committee

3

pursuant to Kaiser Hospital’s Staff By-Laws and state law. Stricker Decl., ¶ 15, Ex. D. A

4

Fair Hearing Panel was then convened in September 2008, in a consolidated proceeding to

5

hear both the decision regarding plaintiff’s credentials in connection with Kaiser Health

6

Plan, and the decision regarding plaintiff’s privileges and staff membership at Kaiser

7

Hospitals.

8
9

The Fair Hearing is a hearing established pursuant to Cal. Bus. & Prof. Code §§ 809
through 809.92, and is referred to as a Section 809 hearing. A Section 809 hearing
functions the same way as a jury trial, with an attorney functioning as judge, and a panel of

11
For the Northern District of California

United States District Court

10

physicians serving as impartial trier of fact. Discovery rights apply, as does the right to be

12

represented and call witnesses. Plaintiff’s Fair Hearing was overseen by Keith Bartel, an

13

attorney in private practice who was appointed as hearing officer. Stricker Decl., ¶¶ 18-20.

14

Four physicians were drawn from among plaintiff’s peers to serve as members of the

15

hearing panel, and plaintiff was given the opportunity to conduct voir dire of the hearing

16

panel and Mr. Bartel, and did so. Plaintiff did not object to Mr. Bartel serving as hearing

17

officer, though he objected to one member of the hearing panel, which Mr. Bartel overruled.

18

Plaintiff chose to represent himself instead of hiring counsel. Stricker Decl., ¶ 19. The Fair

19

Hearing proceedings began in October 2008 and continued over several months, with the

20

last hearing occurring on May 6, 2009. Stricker Decl., ¶ 20.

21

Dr. Stricker presented evidence on behalf of Kaiser Hospitals and Kaiser Health

22

Plan, and he decided to present evidence pertaining only to the nine cases rated as P-2

23

during the Focused Practitioner Review, and he also presented evidence of behavioral

24

concerns regarding plaintiff. Plaintiff, in response argued at the hearing that there had

25

been no problems with his clinical performance in the nine cases, and denied any

26

behavioral concerns. Plaintiff at no time raised disability as a mitigating factor. Nor did he

27

contend that any practice errors had resulted from failure to provide a reasonable

28
6

1

accommodation. Stricker Decl., ¶¶ 21, 26, Ex. I. Plaintiff did, however, elicit testimony to

2

the effect that where cases designating a P-2 standard of care occur, it is Kaiser’s policy

3

that a performance improvement plan must be developed and provided to the physician –

4

something not done in plaintiff’s case. See Rogers Decl., Ex. 2D; Eisenberg Decl., ¶¶ 28,

5

32, Ex. 13.

6

During the course of the Fair Hearing, plaintiff requested numerous continuances

7

due to personal vacations, unavailability, and a purported car accident, as well as on

8

grounds of religious accommodation. The scheduling of the Fair Hearing dates was within

9

the purview of Mr. Bartel, the hearing officer. Mr. Bartel generally honored plaintiff’s
requests for religious accommodation and avoided scheduling hearings on Saturdays, and

11
For the Northern District of California

United States District Court

10

rescheduled hearings due to a religious holiday in October 2008. Stricker Decl., ¶ 22. In

12

relation to a hearing scheduled for February 27, 2009, plaintiff requested that a hearing be

13

rescheduled, because it would not be possible for him to return from the hearing to his

14

home in San Francisco before the beginning of the Jewish Sabbath, since he could not

15

drive once the Sabbath began. Stricker Decl., ¶ 23. Because the hearing had already

16

been scheduled, and due to the short notice associated with plaintiff’s request, Mr. Bartel

17

declined to move the hearing, finding that to do so would pose an undue burden on the

18

attendees (witnesses and four physicians were scheduled to be present). Stricker Decl., ¶

19

23, Ex. F. Plaintiff asserts that, in denying him a request for a continuance, he was told

20

that if he did not attend the Friday hearing, a judgment would be entered against him.

21

Eisenberg, Decl. ¶ 30.

22

On June 15, 2009, the Fair Hearing Panel issued a 19 page written decision, and

23

unanimously voted to uphold the revocation of plaintiff’s Kaiser Health Plan credentials by

24

the CP Committee, and affirming the CP Committee’s recommendation to the PSEC that

25

plaintiff’s staff membership and clinical privileges be terminated by Kaiser Hospitals.

26

Stricker Decl., ¶ 25, Ex. G.

27

Plaintiff subsequently exercised and exhausted further internal appeals to the

28
7

1

Appellate Review Panel of the Kaiser Hospitals Board of Directors and the Kaiser Hospitals

2

Board of Directors itself, which both confirmed the revocation of Hospital privileges.

3

Stricker Decl., ¶ 25. No further appeal was available with respect to the Kaiser Health

4

Plan’s decision to de-credential plaintiff. Stricker Decl., ¶ 26.
While the Fair Hearing was pending, plaintiff continued to practice medicine.

5
6

Stricker Decl., ¶ 24. In February 2009, further concerns emerged regarding plaintiff’s

7

practice. A charge nurse lodged a complaint regarding plaintiff’s failure to come into the

8

clinic when he was on call to examine a patient who had a retinal tear and who later

9

required surgery. Additionally, it was noted by his new Chief of Ophthalmology, Dr.
Deanna Wilson, that plaintiff was becoming increasingly rude to patients, and was not

11
For the Northern District of California

United States District Court

10

interacting with any fellow doctors other than one. Stricker Decl., Ex. G. This raised further

12

concerns about patient safety, and effective March 23, 2009, plaintiff was required to limit

13

his practice to taking and reading fundoscopic photographs for diabetic patients pending

14

the outcome of the Fair Hearing. Stricker Decl., ¶ 24. This resulted in a reduction of

15

plaintiff’s workload and salary.

16

C.

17

Discrimination Facts
In 2007, plaintiff sent three complaints alleging harassment by Dr. Kolarik. In

18

January 2007, plaintiff sent one complaint to the Joint Commission overseeing hospitals

19

and HMOs, and another to the EEOC. Then, plaintiff sent another complaint of harassment

20

to Kaiser’s CEO in March 2007. On April 15, 2007, plaintiff again complained to Dr. Pearl

21

regarding Dr. Kolarik.

22

Plaintiff asserts that he began to experience stress on many levels, and that same

23

April 2007 (one year after Dr. Kolarik forwarded the first four cases to the Quality

24

Department for review), plaintiff unilaterally informed Dr. Kolarik that he would no longer be

25

performing any major surgery due to “health and safety” reasons. Dr. Kolarik accepted this

26

decision, and plaintiff stopped performing major surgery. Not until July 2007, in response

27

to repeated requests from Kaiser Medical Group’s human resources department, did

28
8

1

plaintiff state that he had made the decision due to a medical condition that he described as

2

“stress, anxiety, and less steady hands.” Kolarik Decl., ¶ 8.

3

D.

Instant Action
After filing numerous EEOC complaints of discrimination, plaintiff filed the instant

4
5

action. After withdrawing his ADEA claim, plaintiff now alleges two causes of action against

6

defendants: (1) violation of the Americans with Disabilities Act (“ADA”), and (2) violation of

7

Title VII.

8

Before the court are two motions for summary judgment: one brought by Kaiser

9

Medical Group, and the other brought by the Kaiser Health Plan and Kaiser Hospitals.
Defendants seeks summary judgment with respect to all remaining claims asserted in the

11
For the Northern District of California

United States District Court

10

complaint.
DISCUSSION

12
13
14

A.

Legal Standard
Summary judgment is appropriate when there is no genuine issue as to material

15

facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56.

16

Material facts are those that might affect the outcome of the case. Anderson v. Liberty

17

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there

18

is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

19

A party seeking summary judgment bears the initial burden of informing the court of

20

the basis for its motion, and of identifying those portions of the pleadings and discovery

21

responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp.

22

v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof

23

at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other

24

than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885,

25

888 (9th Cir. 2003).

26
27

On an issue where the nonmoving party will bear the burden of proof at trial, the
moving party can prevail merely by pointing out to the district court that there is an absence

28
9

1

of evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 324-25. If the

2

moving party meets its initial burden, the opposing party must then set forth specific facts

3

showing that there is some genuine issue for trial in order to defeat the motion. See Fed.

4

R. Civ. P. 56(e); Anderson, 477 U.S. at 250.

5

B.

6

Legal Analysis
The summary judgment motions before the court collectively require analysis of the

7

following: (1) whether plaintiff can be deemed an ‘employee’ of all three Kaiser entities at

8

issue for purposes of plaintiff’s wrongful termination suit; (2) whether there are triable

9

issues of fact with respect to plaintiff’s disability discrimination claim under the ADA; (3)
whether there are triable issues of fact with respect to plaintiff’s retaliation claim under the

11
For the Northern District of California

United States District Court

10

ADA; (4) whether there are triable issues of fact with respect to plaintiff’s religious

12

discrimination claim under Title VII; and (5) whether plaintiff’s punitive damages request is

13

sufficiently supported by the evidentiary record.

14

1.

15

It is undisputed that plaintiff was a shareholder in the Kaiser Medical Group,2 and not

The ‘Employee’ Issue

16

otherwise contractually associated with any other Kaiser entity. While this suggests that

17

plaintiff was not employed by Kaiser Hospitals or Kaiser Health Plan and thus cannot hold

18

either liable for his discrimination claims, plaintiff nonetheless contends that he is an

19

employee of all three entities for purposes of his action. As clarified by plaintiff’s counsel at

20

the hearing on the motions, this argument rests on the general assertion of agency

21

principles. Plaintiff contends, for example, that all three Kaiser entities are “branches of the

22
23
24
25
26
27
28

2

The court notes that the parties have not discussed in detail whether plaintiff’s
status as Kaiser Medical Group shareholder suffices to establish an employee-employer
relationship between the two. Rather, defendant stated at the hearing that it assumed for the
purposes of argument that it does, and contends that even assuming an employee-employer
relationship, no liability ensues. The court therefore also assumes the existence of an
employment relationship between plaintiff and Kaiser Medical Group, in its analysis. Had the
existence of any employment relationship between plaintiff and Kaiser Medical Group been
adequately briefed, however, the court notes that such a discussion might have mooted the
remainder of the parties’ arguments in connection with the merits of plaintiff’s claims, as
discussed herein.
10

1

same tree” and are blended together “in a unity of purpose and activities so that the legal

2

fiction of separation must be ignored,” thereby qualifying plaintiff as an employee of Kaiser

3

Hospitals and Kaiser Health Plan in addition to Kaiser Medical Group.

4

A detailed showing is required in order to demonstrate an employer-employee

5

relationship for purposes of both the ADA and Title VII. In Clackamas Gastroenterology

6

Associates, P.C. v. Wells, 538 U.S. 440 (2003), the Supreme Court considered whether

7

physicians who were directors and shareholders of a clinic, could be deemed employees of

8

that clinic for purposes of the ADA. The Court noted that Congress had intended the word

9

“employee” to describe “the conventional master-servant relationship as understood by
common-law agency doctrine.” Id. at 445. The Court then described six factors relevant to

11
For the Northern District of California

United States District Court

10

determining whether a director is an employee: (1) whether the organization can hire or fire

12

the individual or set the rules and regulations of the individual's work; (2) whether and, if so,

13

to what extent the organization supervises the individual's work; (3) whether the individual

14

reports to someone higher in the organization; (4) whether and, if so, to what extent the

15

individual is able to influence the organization; (5) whether the parties intended that the

16

individual be an employee, as expressed in written agreements or contracts; and (6)

17

whether the individual shares in the profits, losses, and liabilities of the organization. Id. at

18

449-50. The Court also noted that these factors were not exhaustive, and that whether an

19

individual is an employee depends on “all of the incidents of the relationship[,] with no one

20

factor being decisive.” Id. at 450 n. 10, 451.

21

Similarly, in Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883-84 (9th Cir.

22

1980), the Ninth Circuit noted that in order for Title VII protections to apply, “there must be

23

some connection with an employment relationship,” even though the connection with

24

employment “need not necessarily be direct.” The line between employment and non-

25

employment status depends “upon the economic realities of the situation.” A primary

26

factor, however, is “[t]he extent of the employer's right to control the means and manner of

27

the worker's performance...”. Additional factors are: (1) the kind of occupation, with

28
11

1

reference to whether the work usually is done under the direction of a supervisor or is done

2

by a specialist without supervision; (2) the skill required in the particular occupation; (3)

3

whether the “employer” or the individual in question furnishes the equipment used and the

4

place of work; (4) the length of time during which the individual has worked; (5) the method

5

of payment, whether by time or by the job; (6) the manner in which the work relationship is

6

terminated; i. e., by one or both parties, with or without notice and explanation; (7) whether

7

annual leave is afforded; (8) whether the work is an integral part of the business of the

8

“employer”; (9) whether the work accumulates retirement benefits; (10) whether the

9

“employer” pays social security taxes; and (11) the intention of the parties. See 633 F.2d

11
For the Northern District of California

United States District Court

10

880, 883-84.
Plaintiff’s arguments, however, make no reference to any legal test for

12

demonstrating the existence of an employer/employee relationship, let alone does plaintiff

13

acknowledge the applicability of the foregoing factors. Having failed to frame his argument

14

with reference to any of the requisite legal standards, plaintiff cannot come close to

15

satisfying any such standards. At most, plaintiff submits his own declaration, with his 1987

16

employment application, and his March 31, 2009 resignation letter attached as exhibits.

17

See Eisenberg Decl., Exs. 1, 12. But plaintiff’s declaration recites only that “Kaiser” –

18

without differentiation as to any specific Kaiser entity – established rules and guidelines for

19

his practice, and had control over his staff. And the employment application and

20

resignation letter attached to plaintiff’s declaration only generally suggest an

21

interrelatedness between the Kaiser entities, but do nothing to explain or demonstrate how

22

any of the foregoing factors are met for purposes of the employee-employer relationship

23

test. As such, plaintiff’s declaration provides no concrete guidance or proof on the

24

employer-employee question. See also, e.g., FTC v. Publ'g Clearing House Inc., 104 F.3d

25

1168, 1171 (9th Cir.1997) (“A conclusory, self-serving affidavit, lacking detailed facts and

26

any supporting evidence, is insufficient to create a genuine issue of material fact.”).

27

The court furthermore notes that it is not clear that plaintiff could demonstrate the

28
12

1

existence of any employee-employer relationship, even with adequate evidentiary support.

2

See, e.g., Wojewski v. Rapid City Regional Hosp., Inc., 450 F.3d 338, 343-44 (8th Cir.

3

2006)(doctor challenging termination of hospital privileges was an independent contractor,

4

not an employee); Shah v. Deaconess Hosp., 355 F.3d 496, 500 (6th Cir. 2004)(doctor with

5

surgical privileges was not an employee for Title VII purposes); Alexander v. Rush North

6

Shore Medical Center, 101 F.3d 487, 494 (7th Cir. 1996)

7

In sum, however, by neither focusing on the legal tests that apply nor submitting

fallen far short of his burden in establishing that he is an employee of either Kaiser Health

10

Plan or Kaiser Hospital, for purposes of his Title VII and ADA claims. Thus, plaintiff cannot

11
For the Northern District of California

appropriate evidence that would demonstrate the satisfaction of any such tests, plaintiff has

9

United States District Court

8

assert his Title VII or ADA claims against Kaiser Health Plan or Kaiser Hospitals, since it is

12

undisputed that in name, if he is any Kaiser entity’s employee, it would be Kaiser Medical

13

Group only.

14

For these reasons, defendants Kaiser Health Plan’s and Kaiser Hospitals’ motion for

15

summary judgment is GRANTED as to all claims asserted by plaintiff, on the basis that

16

plaintiff cannot demonstrate a triable issue of fact as to whether these defendants were

17

plaintiff’s employer for purposes of Title VII and ADA liability.

18

The court furthermore notes that, even if plaintiff had been able to so demonstrate,

19

plaintiff’s claims would nonetheless ultimately still fail against defendants on their merits, for

20

the same reasons as are discussed below with respect to remaining defendant Kaiser

21

Medical Group.

22

2.

23

The heart of plaintiff’s claim against remaining defendant Kaiser Medical Group is

Disability Discrimination Under the ADA

24

that defendant has discriminated against plaintiff on the basis of a disability. Plaintiff

25

specifically contends that he had a physical or mental impairment, in that he suffers from

26

clinical depression and anxiety, with a resulting medical condition that affects the

27

steadiness of plaintiff’s hands, and ensuing ability to perform safely in an operating room

28
13

1

environment. To that end, on April 25, 2007, plaintiff gave defendants written notice of his

2

cessation of major surgery due to health concerns. According to plaintiff, shortly thereafter,

3

defendant began steps to take adverse action against plaintiff in the form of the Focused

4

Practitioner Review – which, plaintiff asserts, supports a claim for disability discrimination

5

under the ADA.

6

Disparate treatment claims under the ADA are analyzed under the burden-shifting

7

framework of McDonnell-Douglas. In general, to establish a prima facie case for disparate

8

treatment, a plaintiff must prove that (1) she was a member of a protected class; (2) she

9

was performing her job in a satisfactory manner; (3) she was subjected to an adverse
employment action; and (4) employees not in the protected class were not treated similarly.

11
For the Northern District of California

United States District Court

10

Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998); see also Coleman v.

12

Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). As applied to the ADA, a plaintiff’s

13

prima facie case of discrimination based on a disability must show that plaintiff: (1) is

14

disabled; (2) is qualified; and (3) suffered an adverse employment action because of his

15

disability. Snead v. Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir.

16

2001). If plaintiff establishes a prima facie case, the burden shifts to the defendant to

17

articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. at

18

1093-94. If the defendant does so, the burden shifts back to the plaintiff to produce

19

evidence that the articulated reason is pretextual. Id.

20

For purposes of the ADA, an individual is "disabled" if s/he has a "physical and

21

mental impairment that substantially limits one or more of the major life activities of such

22

individual; a record of such an impairment; or being regarded as having such an

23

impairment." 42 U.S.C. § 12102(2); see also Sutton v. United Airlines, 527 U.S. 471, 482

24

(1999)("A disability exists [if] an impairment substantially limits a major life activity."). Major

25

life activities include "functions such as caring for oneself, performing manual tasks,

26

walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §

27

1630.2(1). "To be substantially limited in the major life activity of working, . . . one must be

28
14

1

precluded from more than one type of job, a specialized job, or a particular job of choice."

2

Sutton, 527 U.S. at 492. Rather, a plaintiff must prove that the employer regarded the

3

individual as precluded from a “class of jobs or a broad range of jobs in various classes.”

4

Id. at 491. An individual is considered a "qualified individual with a disability" if the

5

individual can perform the essential functions of the position held or desired with or without

6

reasonable accommodation. 29 C.F.R. § 1630.2(o).

7

With these standards in mind, plaintiff’s claim is deficient in several respects. To

8

begin with, plaintiff offers no evidence, other than his own declaration, to demonstrate that

9

his depression and stress symptoms – including inability to focus or sleep – substantially
limited his major life activities. See Eisenberg Decl., ¶¶ 16, 19, 21-24. According to

11
For the Northern District of California

United States District Court

10

plaintiff, he was unable to sit or stand in one position for more than 10 minutes, and this,

12

combined with his depression and anxiety, substantially impaired the life activities of

13

thinking, concentrating, sleeping, and working. See Pl. Opp. Br. at 14:2-9.3 However,

14

other than his own self-serving statement, plaintiff points to no other record of such

15

impairment prior to April 2007, nor any other evidence demonstrating that others –

16

including Kaiser Medical Group – believed him to be so impaired.4 See,.e.g, FTC v. Publ'g

17

Clearing House Inc., 104 F.3d at 1171. Furthermore, based on his own self-reporting of

18

symptoms and without other corroborating evidence, plaintiff cannot be said to have been

19

significantly restricted in any major life activities. See, e.g., Houlihan v. Lucky Stores, Inc.,

20

87 F.3d 362, 366 (9th Cir.)(store manager not “disabled” by depression and stress because

21
22
23
24
25
26
27
28

3

Plaintiff has cited in his opposition brief to Exhibit B of the Robinow Deposition.
However, the court finds no reference to any authenticated portion of the Robinow deposition,
or to Exhibit B of same, in the declarations submitted by plaintiff in support of his motion.
4

Plaintiff does submit two cursory letters from plaintiff’s treating physician, Dr.
Joseph Robinow, stating that plaintiff was being treated for “clinical depression” in October
2008 and obliquely referencing a “prior disability” at some point prior to July 2008, see
Eisenberg Decl., Ex. 9. However, neither of these support the existence of any qualifying
disability prior to April 2007. In fact, plaintiff’s own declaration rather confusingly states that
he was first treated by Dr. Robinow in July of 2007. Eisenberg Decl., ¶ 22. Quizzically, then,
plaintiff’s first treatment for his disability occurred after the April date upon which plaintiff first
unilaterally asserted the existence of his disability.
15

1

did not significantly restrict, even if it impacted, manager’s ability to sleep, concentrate, in

2

comparison to average person). In short, plaintiff has failed to create a triable issue of fact

3

with respect to the existence of any disability under the ADA.

because of any disability. As plaintiff’s counsel clarified at the hearing, plaintiff contends

6

that the adverse action he suffered was defendant’s decision to undertake the Focused

7

Practitioner Review that ultimately found that plaintiff fell below the standard of care in nine

8

P-2 cases. According to plaintiff, this adverse action began on June 15, 2007, the point at

9

which defendant purportedly began soliciting high risk, high volume, difficult patient cases

10

to include in the Focused Practitioner Review. Plaintiff asserts that the solicitation of high

11
For the Northern District of California

Second, plaintiff cannot establish that he suffered an adverse employment action

5

United States District Court

4

risk cases was sufficiently close in time to the April 25, 2007 date on which plaintiff

12

informed Dr. Kolarik of his need to stop surgery due to health reasons, such that a causal

13

relationship has been demonstrated between defendant’s knowledge of plaintiff’s disability,

14

and the adverse action taken against him.

15

As defendant notes, however, plaintiff’s argument is belied by the undisputed facts,

16

which actually demonstrate that the Focused Practitioner Review that constitutes the

17

“adverse action” that plaintiff complains of, began far earlier than the April 25, 2007 date on

18

which plaintiff first informed Dr. Kolarik of his purported disability. For example: in August

19

of 2006, four of Dr. Eisenberg’s cases had come to the attention of the Quality Department

20

at Kaiser Hospital Vallejo and were shortly thereafter submitted for peer review; on August

21

28, 2006, Dr. Sarah McCarthy, the Associate Physician in Chief for Risk at Kaiser Medical

22

Group, sent an e-mail within the Quality Department stating that “the number of cases [and

23

apparent record-keeping irregularities by Dr. Eisenberg raised] concerns that a focused

24

practice review may be indicated;” throughout fall 2006 and spring 2007, Surgical Services

25

Peer Review meetings were held during which plaintiff’s cases were found to have

26

significant deviations from the standard of care. See Quon Decl., ¶¶ 2, 5; id., Exs. A-E.

27

Then, based in part on these results, the Focused Practitioner Review began to solicit

28
16

1

plaintiff’s cases for review in June and July 2007. Quon Decl., ¶¶ 6-7; id., Ex I; see

2

Declaration of William J. Rogers ISO Summ. Judgment Opp. (“Rogers Decl.”), Ex. A. All of

3

which demonstrates that insofar as the peer review of plaintiff’s cases and the resulting

4

Focused Practitioner Review are concerned, the wheels for both were set in motion as

5

early as August 2006 – well before the April 2007 date on which plaintiff informed his

6

supervisor about his purported disability. As such, plaintiff fails to create a triable issue of

7

fact as to whether defendant undertook any adverse action against him because of, or on

8

the basis of, any disability.

9

In sum, and based on the foregoing, plaintiff cannot demonstrate either that he was
disabled, or that there is any temporal link between disclosure of any such disability and

11
For the Northern District of California

United States District Court

10

any adverse action taken against him, such that a causal connection might be established

12

between the two. As such, plaintiff fails to establish a triable issue of fact as to a prima

13

facie claim for disability discrimination, and defendant’s motion for summary judgment is

14

accordingly GRANTED with respect to this claim.

15

The court also notes, moreover, that even if plaintiff had come forward with sufficient

16

evidence to establish a triable issue as to a prima facie claim for disability discrimination,

17

the undisputed evidence would nonetheless support a finding that defendant had a

18

legitimate nondiscriminatory reason for terminating its relationship with plaintiff. Plaintiff

19

does not dispute, for example, that as noted above, several of his cases came to the

20

attention of the Quality Department at Kaiser Hospital Vallejo in August 2006 and were

21

shortly thereafter submitted for peer review; that this process led to a Focused Practitioner

22

Review; or that he exercised his rights to a Fair Hearing before a committee prior to the

23

decision to revoke his credentials; or that, without credentials to provide services to

24

members of Kaiser Foundation Health Plan, plaintiff was unable to provide medical

25

services to defendant’s clientele. See, e.g., Stricker Decl., ¶ 3; id., Ex. A at 11.D

26

(defendant policy noting that all physicians “must maintain credentials necessary to treat

27

Kaiser Foundation Health Plan members). Thus, because defendant was prevented from

28
17

1

employing any physician without the necessary credentials as a matter of policy, defendant

2

had a legitimate and nondiscriminatory reason for terminating plaintiff.

3

3.

4

Plaintiff also contends that defendant Kaiser Medical Group retaliated against him in

5

violation of the ADA. While the precise contours of plaintiff’s retaliation claim are not wholly

6

clear to the court, plaintiff appears to contend that the Focused Practitioner Review that

7

was conducted was a retaliatory action undertaken by defendant in response to plaintiff’s

8

submission of complaints to the Equal Employment Opportunity Commission (“EEOC”) in

9

January of 2007 and March of 2007, about purported harassment that plaintiff was

11
For the Northern District of California

United States District Court

10

Retaliation Claim Under the ADA

receiving at the hands of Dr. Kolarik.
In order to make out a prima facie case of retaliation, a plaintiff must establish “that

12

[he or she] acted to protect [his or her] rights, that an adverse employment action was

13

thereafter taken against [him or her], and that a causal link exists between those two

14

events.” See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994).

15

Plaintiff’s retaliation claim, like the disability discrimination claim, has significant

16

problems. First, the undisputed facts once again disclose a timing problem. As indicated in

17

connection with the foregoing disparate treatment claim, the events that set the Focused

18

Practitioner Review in motion actually commenced in August 2006, when Dr. Kolarik first

19

forwarded complaints as to the quality of plaintiff’s medical care on to the Quality

20

Department. Since this is well before the January and March 2007 dates on which plaintiff

21

purportedly engaged in his protected activity, plaintiff cannot demonstrate that the Focused

22

Practitioner review was in fact conducted as a retaliatory response to plaintiff’s filing of any

23

EEOC complaints.

24

Second, and most significant, there is simply no evidence provided by plaintiff that

25

suggests that his complaints to the EEOC had anything at all to do with a disability.

26

Neither plaintiff nor the evidence posits as much and given that plaintiff concedes that he

27

first notified Dr. Kolarik of his disability on April 25, 2007, it is improbable that plaintiff’s

28
18

1

earlier complaints in January and March of 2007 could have highlighted any harassment

2

that plaintiff was receiving at the hands of Dr. Kolarik because of his disability. Indeed, as

3

has already been noted, plaintiff submits no proof that defendant was even aware of his

4

disability at any time prior to plaintiff’s April 2007 letter unilaterally informing defendant of

5

such. As such, plaintiff cannot demonstrate that he engaged in protected activity in order

6

to protect his rights as secured by the ADA specifically, let alone that defendant retaliated

7

against him as a direct result of plaintiff having done so.

8

All of which demonstrates that, as with plaintiff’s disparate treatment claim, plaintiff

the ADA. For this reason, the court also GRANTS summary judgment in favor of Kaiser

11
For the Northern District of California

has failed to establish a triable issue of fact as to a prima facie case for retaliation under

10

United States District Court

9

Medical Group, with respect to plaintiff’s retaliation claim pursuant to the ADA.

12

4.

13

Plaintiff asserts a claim for discrimination against Kaiser Medical Group on the basis

14

of his religious affiliation (plaintiff is Jewish). Specifically, plaintiff asserts as a basis for his

15

religious discrimination claim that the fair hearing officer, Mr. Bartel, failed to accommodate

16

his need to reschedule a Fair Hearing date on February 27, 2009, due to plaintiff’s

17

requested need to be home on the Sabbath.5

18

Religious Discrimination Claim Under Title VII

As already noted, in order to establish a claim for discrimination under Title VII, a

19

plaintiff must establish: (1) he was a member of a protected class; (2) he was performing

20

her job in a satisfactory manner; (3) he was subjected to an adverse employment action;

21

and (4) employees not in the protected class were not treated similarly. Godwin v. Hunt

22

Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998); see also Coleman v. Quaker Oats Co.,

23

232 F.3d 1271, 1281 (9th Cir. 2000). As with ADA claims, Title VII claims are subject to

24

McDonnell Douglas burden shifting analysis. See McDonnell Douglas Corp. v. Green, 411

25
26
27
28

5

Plaintiff originally asserted as an additional basis for his religious discrimination
claim that at some point in time (he cannot remember when), Dr. Kolarik placed a “santa hat”
on plaintiff’s head. However, plaintiff’s counsel withdrew this argument at the hearing on the
instant motions.
19

1

U.S. 792, 802 (1973); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).

2

Moreover, as defendant notes, in order to establish religious discrimination on the basis of

3

failure to accommodate, plaintiff must establish that the “employer discharged, threatened,

4

or otherwise subjected him to adverse employment action because of his inability to fulfill

5

the job requirement.” Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).

6

Here, plaintiff falls far short of the mark. As a preliminary matter, Mr. Barton is

Kaiser entities, but rather an independent private neutral hired to preside as judge over the

9

Fair Hearing process. As such, plaintiff cannot hold Kaiser Medical Group responsible for

10

any conduct undertaken by Mr. Barton. And while plaintiff blithely asserts that Mr. Barton

11
For the Northern District of California

neither a party to this lawsuit, nor is it disputed that he was not an employee of any of the

8

United States District Court

7

was an “agent” for Kaiser Medical Group, plaintiff does absolutely nothing to establish the

12

existence of an agency relationship. Nor is it likely that he could: as defendant points out,

13

as an individual acting in a quasi-judicial capacity as a hearing officer appointed pursuant to

14

state law, Mr. Barton is entitled to immunity for his decisions made in overseeing the

15

hearing process. See Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579, 1582 (9th Cir.

16

1987). A scheduling decision would fall within this scope, thereby immunizing Mr. Barton

17

from Title VII liability.

18

Accordingly, based on the foregoing reasons, the court GRANTS summary judgment

19

in Kaiser Medical Group’s favor, with respect to plaintiff’s Title VII claim alleging religious

20

discrimination.

21

5.

22

Finally, defendant seeks summary judgment with respect to plaintiff’s request for

Punitive Damages Request

23

punitive damages. As a general matter, evidence of fraud, malice, or oppression – as is

24

required in order to support an award of punitive damages – must be supported by clear

25

and convincing evidence. See, e.g., Basich v. Allstate Ins. Co., 87 Cal. App. 4th 1112,

26

1118-19, 1121 (2001)(“If the plaintiff is going to prevail on a punitive damages claim, he or

27

she can only do so by establishing malice, oppression or fraud by clear and convincing

28
20

1

evidence. Thus, any evidence submitted in response to a motion for summary adjudication

2

must necessarily meet that standard.”). Cases that recognize an award of punitive

3

damages based on claims of malice or oppression, as appears to be the case here,

4

consider malice or oppression to be shown where “despicable conduct” has been

5

demonstrated. Despicable conduct is generally considered to be “conduct which is so vile,

6

base, contemptible, miserable, wretched or loathsome that it would be looked down upon

7

and despised by ordinary decent people.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App.

8

4th 1269, 1287 (1994). Such conduct has been described as “[having] the character of

9

outrage frequently associated with crime.” Id.
Here, plaintiff has failed to come forward with evidence of the type of conduct that

11
For the Northern District of California

United States District Court

10

would rise to the level of despicable conduct sufficient to support an award of punitive

12

damages. Plaintiff makes almost no attempt to introduce evidence that would support

13

evidence of despicable conduct, stating only in conclusory fashion that the failure to provide

14

a Performance Improvement Plan constitutes grounds for punitive damages. However,

15

even if true, defendant’s failure to provide a Performance Improvement Plan provides an

16

insufficient basis upon which to base a finding of ‘despicable conduct’ – or an award of

17

punitive damages.6

18

The court accordingly GRANTS defendant’s motion with respect to punitive

19

damages.

20

C.

Conclusion

21

For all the foregoing reasons, the court hereby GRANTS defendants’ motions for

22

summary judgment. The February 27, 2012 trial date having already been vacated, the

23

//

24

//

25

//

26
27
28

6

Moreover, having found no basis for liability of defendant, the punitive damages
issue is moot.
21

1
2
3

clerk shall close the file.
IT IS SO ORDERED.
Dated: January 20, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22