Jaffrey v. Centura Health Corporation

Filing 69

ORDER by Magistrate Judge Nina Y. Wang on 8/10/2017. Defendant PorterCare Adventist Health System's Motion to Reconsider 60 is DENIED. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02297-NYW
IRA S. JAFFREY, M.D.,
Plaintiff,
v.
PORTERCARE ADVENTIST HEALTH SYSTEM,
Defendant.

ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant PorterCare Adventist Health System’s
(“PorterCare” or “Defendant”) Motion to Reconsider (the “Motion”). [#60, filed June 9, 2017].
The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order Referring
Case dated December 9, 2015 [#11]. The court concludes that oral argument will not materially
assist in the resolution of this matter. Accordingly, upon careful review of the Parties’ briefing,
the entire case file, and applicable law, the Motion is DENIED.
BACKGROUND
The court has discussed in detail this action’s background in previous rulings, see, e.g.,
[#46], and discusses it here only as it pertains to the pending Motion. Plaintiff Ira S. Jaffrey
(“Plaintiff” or “Dr. Jaffrey”) initiated this action on October 16, 2015, at the age of seventy-six
(76).

[#1].

Plaintiff, a Colorado licensed physician and board certified oncologist, began

working as a part-time (“locum tenens”) oncologist at Defendant’s facility, Mile High Oncology

(“MHO”), in April 2014.

[Id. at ¶¶ 4, 9].

However, around July 2014, the employment

relationship soured and Defendant terminated Plaintiff on or about July 24, 2014. [Id. at ¶¶ 5–
11]. Plaintiff alleges that Defendant discriminated against him because of his age in violation of
the Age Discrimination in Employment Act of 1967 (“ADEA” or “Act”), 29 U.S.C. § 621 et seq.
(Claim I). [Id. at ¶ 1, 20]. Plaintiff also brings common-law claims for breach of contract
(Claim II) and promissory estoppel (Claim III) against Defendant. [Id. at ¶¶ 21–24].
On September 9, 2016, Defendant filed its Motion for Summary Judgment. [#31]. On
November 30, 2016, the court held a motion hearing and took the Motion for the Summary
Judgment under advisement. [#41]. With leave of court, both parties filed supplements to their
briefing on December 9, 2016. See [#44; #45].
On April 4, 2017, the court granted in part and denied in part Defendant’s Motion for
Summary Judgment. [#46]. Specifically, the court held that genuine issues of material fact
precluded summary judgment as to Claims I and III, and granted summary judgment in
Defendant’s favor as to Claim II only to the extent it alleged a breach of contract claim
predicated on the unsigned employment agreement. [Id.]. Thus, Claims I and III remained in
their entirety for trial, and Claim II remained to the extent it alleged a breach of contract claim
predicated on the breach of an oral promise to extend Plaintiff’s locum tenens employment with
Defendant. [Id.].
On May 5, 2017, the undersigned held a Final Pretrial Conference, setting the remaining
claims for a four-day jury trial to commence on February 26, 2018. [#57]. The court has since
entered a Final Pretrial Order and Trial Preparation Order. [#58; #59].

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Defendant filed the instant Motion of June 9, 2017.

[#60].

Defendant moves for

reconsideration of the court’s Memorandum Opinion and Order (“Order”) granting in part and
denying in part Defendant’s Motion for Summary Judgment pursuant to Rule 60(b)(6) of the
Federal Rules of Civil Procedure. [Id.]. Defendant contends that the court misapprehended the
facts and the controlling case law as to all three of Plaintiff’s claims, and seeks summary
judgment in its favor as to Claims I-III. [Id. at 2].
LEGAL STANDARD
The Federal Rules of Civil Procedure do not expressly provide for a motion for
reconsideration. Because Defendant seeks reconsideration of a non-final order, its Motion “falls
within a court’s plenary power to revisit and amend interlocutory orders as justice requires.”
United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06–cv–00037-PAB-CBS, 2010
WL 420046, at *3 (D. Colo. Feb. 1, 2010); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.”). Courts in this district have applied different standards on
motions for reconsideration of non-final orders. See United Fire & Cas. Co., 2010 WL 420046,
at *3 (listing cases applying Rule 59(e) standard, Rule 60(b) standard, and “law of the case”
standard). But as a general principle, courts may grant motions to reconsider where there is “(1)
an intervening change in the controlling law, (2) new evidence previously unavailable, and (3)
the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion for reconsideration is not an avenue for a party

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to reargue issues by rehashing facts and arguments already addressed or available, yet neglected,
in the original proceeding. See id.; Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991).
Defendant moves for reconsideration under Rule 60(b)(6) of the Federal Rules of Civil
Procedure that provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons: . . .
(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Motions under Rule 60(b)(6) must be made within a reasonable time
period. Fed. R. Civ. P. 60(c). Again, the rule does not permit a rehashing of the facts or
arguments previously addressed by the court. See Pyeatt v. Does, 19 F. App’x 785, 788 (10th
Cir. 2001) (explaining that “denial of a Rule 60(b)(6) motion is not an abuse of discretion where
the motion basically revisits, albeit in somewhat different forms, the same issues already
addressed and dismissed by the court.” (internal quotations and citations omitted)). Rather, Rule
60(b)(6) permits relief for “any other reason justifying relief.” While characterized by the Tenth
Circuit as a “grand reservoir of equitable power to do justice in a particular case,” this subsection
only affords relief in extraordinary situations, when such action is necessary to accomplish
justice. F.D.I.C. v. Union Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998); Colorado
Interstate Gas Co. v. Natural Gas Pipeline Co. of America, 962 F2d 1528, 1533 (10th Cir. 1992)
(citingCollins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958)).
ANALYSIS
PorterCare moves for reconsideration of this court’s Order, arguing that the court
misapplied the “undisputed evidence and clear controlling law.”
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[#60 at 2].

Defendant

continues that a reexamination of the both will yield a different result as to the court’s prior
ruling—namely, that Defendant is entitled to summary judgment on all three claims. [Id.].
Essentially, Defendant reargues its Motion for Summary Judgment without directing the court to
any change in controlling law, any new evidence previously undisclosed, or any need to correct
clear error or prevent manifest injustice. Though Defendant may disagree with the application of
the law to the facts, this, alone, is insufficient to warrant reconsideration.
I.

Claim I – Age Discrimination
To start, Defendant raises four arguments with respect to Plaintiff’s ADEA claim. First,

Defendant argues that Plaintiff was not qualified to perform the duties of the job, because he was
not entitled to unilaterally dictate the requirements of potential employment; thus, Plaintiff could
not establish a prima facie case of age discrimination. See [#60 at 6]. Defendant made the exact
same argument for the first time in its Reply, but this time cites to Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1260 (11th Cir. 2001) for the proposition that the plaintiff’s refusal to perform
the essential functions of a job rendered him unqualified. [#60 at 6]. Aside for being nonbinding on this court, the Lucas case was a discrimination claim asserted under the Americans
With Disabilities Act, and the United States Court of Appeals for the Eleventh Circuit was
considering the plaintiff’s claim that the defendant failed to reasonably accommodate his
disability by failing to transfer him to a different position within the company. See Lucas, 257
F.3d at 1257-60. Ultimately, the court held that the plaintiff could not establish a discrimination
claim on a failure to accommodate theory where the plaintiff refused to perform the essential
functions of the job. See id. This court finds Lucas inapposite to the particular circumstances of
this case.

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Similarly, Defendant argues that a potential job applicant who is over 40 years of age
does not have the right to unilaterally set the compensation package for the job they are applying
to. [#60 at 7]. Whether this proposition is true, Defendant offers no reason why this argument
justifies reconsideration of the court’s Order.

To establish a prima facie case of age

discrimination, Dr. Jaffrey must prove that (1) he belongs to a protected class; (2) he applied and
was qualified for a job for which the employer was seeking applicants; (3) he was rejected for
that job; and (4) following his rejection, the job remained open and defendant continued to seek
applicants from persons with plaintiff’s qualifications.” See Plotke v. White, 405 F.3d 1092, 1102
(10th Cir. 2005). Whether or not Plaintiff had the right to unilaterally set a compensation
package is irrelevant to whether Defendant rejected him for the job based on his age. The court
already found that PorterCare proffered a legitimate, non-discriminatory reason for its failure to
hire Dr. Jaffrey, and that there was a genuine issue of material fact as to whether Defendant’s
proffered reason was pretext.

This argument by Defendant is simply a restatement of its

purported legitimate, non-discriminatory reason.
Next, Defendant’s third and fourth arguments assert that this court applied the wrong
legal standard to Plaintiff’s ADEA claim. [#60 at 7-9]. Specifically, the court should have
analyzed Claim I under the “but-for-cause” requirement articulated in Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177 (2009). [Id.]. According to Defendant, it was clear error for the court to
apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), because, as argued extensively in its Motion for Summary Judgment, Defendant
contends that it did not hire Dr. Jaffrey due to the Parties’ inability to agree to an employment
contract, not due to his age. [Id.].

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Although the Supreme Court in Gross held that an employee must prove “but-for”
causation to establish a successful ADEA claim, the binding precedent in this Circuit holds that
“this causal standard does not require plaintiffs to show that age was the sole motivating factor in
the employment decision…. Instead, an employer may be held liable under the ADEA if other
factors contributed to its taking an adverse action, as long as age was the factor that made a
difference.” Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1277 (10th Cir. 2010) (internal
brackets, quotations, and citations omitted). More importantly, as this court noted in its Order,
see [#46 at 8 n.3], the Tenth Circuit in Jones reaffirmed that the use of the McDonnell Douglas
framework in ADEA cases remained binding precedent in this Circuit. See Jones, 617 F.3d at
1278-79. See also Kosak v. Catholic Health Initiatives of Col., 400 Fed. App’x 363, 366 (10th
Cir. 2010) (utilizing the McDonnell Douglas test to evaluate an ADEA claim absent direct
evidence of discrimination). “[A]bsent further action from the Supreme Court or an en banc
decision of the Tenth Circuit, binding authority in this Circuit holds that the McDonnell Douglas
framework applies to ADEA claims.” Bradley v. Denver Health & Hosp. Auth., 734 F. Supp. 2d
1186, 1208 (D. Colo. 2010).

Defendant even acknowledges this point in its Motion to

Reconsider, but nevertheless argues that this court should have applied the “narrow exception to
our general rule against a ‘pretext plus’ requirement,” see Jones, 617 F.3d at 1281, and held that
no rational factfinder could conclude that Defendant’s action was discriminatory. [#60 at 9].
Defendant continues that, because this court dismissed Plaintiff’s breach of contract claim, it
“has in effect found that ‘the record conclusively revealed some other, non-discriminatory reason
for the employer’s decision.’”

[Id.].

Respectfully, this court disagrees again that this is

sufficient to justify summary judgment.

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While the court held that there was no contract between the Parties as to a two-year
position with Defendant, it also concluded that Plaintiff’s testimony that Defendant did not hire
him because it decided to go with someone younger, created a genuine issue of material fact as to
whether Defendant’s legitimate, nondiscriminatory reason was pretextual. Defendant contends
here, as it did on summary judgment, that Plaintiff cannot maintain both a breach of contract
claim and an ADEA claim simultaneously. However, Defendant points to no case law (nor has
this court found any) to support this proposition. Rather, Defendant contends that the lack of an
employment agreement between the parties unequivocally precludes any conclusion that Plaintiff
was not hired because of his age. However, Plaintiff’s ADEA claim hinges on a credibility
determination, one that the jury, not the court, will ultimately decide. Though Defendant may
ultimately prevail at trial on Plaintiff’s ADEA claim, this does not warrant this court’s
reconsideration of Defendant’s Motion for Summary Judgment.
II.

Claim II – Breach of Contract
Defendant next takes issue with this court’s holding that Claim II remained for trial to the

extent it alleges a breach of an oral contract with Defendant to extend his locum tenens
employment. Defendant argues that there “is no dispute that the work [Dr.] Jaffrey did at Mile
High Oncology on the Littleton Hospital Campus was locum tenens work under a contract with
ASR,” and, thus, Plaintiff was precluded from entering into any agreement (written or oral) with
Defendant to perform any locum tenens work. [#60 at 10-12]. While this may be true, the
glaring deficiency with Defendant’s arguments is that it never expressly moved for summary
judgment on this point. See [#46 at 18]. Defendant cannot now move for summary judgment on
this point under the guise of a Motion to Reconsider. Moreover, nothing precludes PorterCare

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from raising these arguments at trial, as “the existence of an oral contract and the contents of its
terms are factual questions.” Murray v. Crawford, 689 F. Supp. 2d 1289, 1297 (D. Colo. 2010).
III.

Claim III – Promissory Estoppel
Lastly, Defendant reasserts its arguments for summary judgment that Plaintiff’s

promissory estoppel claim must fail.

Specifically, Defendant contends that there was no

“promise” of a two-year position with Defendant; and that any such promise would not be
enforceable because of the statute of frauds, Plaintiff’s lack of describing the promise with
specificity, 1 and any promise regarding Plaintiff’s locum tenens work is governed by an
enforceable contract. [#60 at 12-16].
Again, Defendant raised these arguments at summary judgment. See generally [#31; #38;
#45]. Further, the court explicitly acknowledged the substance of these arguments in its Order.
See [#46 at 17 n.5, 18-20]. In doing so, the court was careful to explain the requisite elements of
a promissory estoppel claim, and concluded that Plaintiff sufficiently created a genuine of issue
of fact as to whether there was a concrete promise, the parameters of which was a two-year term
as an oncologist for Defendant. See [#46 at 19]. This court was also careful to explain that a
claim for promissory estoppel could not lie where an already enforceable agreement existed and,
thus, Plaintiff could not prevail on his oral contract claim (Claim II) and his Promissory Estoppel
Claim (Claim III), but that nothing precluded a plaintiff from pleading promissory estoppel in the
alternative. Finally, “the statute of frauds provides no defense to a claim based on promissory
estoppel.” American Pride Co-op v. Seewald, 968 P.2d 139, 142 (Colo. App. 1998). Thus,

1

Defendant cites this court to case law from outside Colorado for this proposition. Doing so
does not constitute an intervening change in the controlling law or a misapplication of
controlling law.
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Defendant points to no clear error or any need to prevent manifest injustice with respect to this
court’s ruling on Plaintiff’s Promissory Estoppel Claim (Claim III), and, instead, improperly
regurgitates its arguments for summary judgment.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1)

PorterCare Adventist Health System’s Motion to Reconsider [#60] is DENIED.

DATED: August 10, 2017

BY THE COURT:

s/Nina Y. Wang__________
Nina Y. Wang
United States Magistrate Judge

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