Awwad v. Largo Medical Center, Inc.

Filing 215

ORDER granting 179 Motion for summary judgment as to Counts I and II, and declining to exercise supplemental jurisdiction over the remaining claims. The Clerk is directed to terminate all remaining pending motions, to enter judgment in favor of Defendant on Counts I and II, and to close the case. Signed by Judge Susan C Bucklew on 8/21/2013. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ABRAHAM I. AWWAD,
Plaintiff,
v.

Case No. 8:11-cv-1638-T-24 TBM

LARGO MEDICAL CENTER, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion for Summary Judgment.
(Doc. No. 179). Plaintiff opposes the motion. (Doc. No. 195). The Court held a hearing on the
motion on August 15, 2013. As explained below, the Court grants summary judgment on
Plaintiff’s federal claims and declines to exercise supplemental jurisdiction over the remaining
state law claims.
I. Standard of Review
Summary judgment is appropriate “if the movant shows that 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). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate

specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background1
Plaintiff Abraham Awwad is a Palestinian doctor that is Board Certified in Nephrology.
(Doc. No. S-199, ¶ 1, 4). Plaintiff applied for and obtained medical staff privileges at Defendant
Largo Medical Center (“LMC”) and Northside Hospital (“Northside”).2 (Doc. No. S-199, Ex. 1,
¶ 9). Plaintiff had medical staff privileges at LMC from 1999 through May of 2011, when LMC
revoked Plaintiff’s medical staff privileges. (Doc. No. S-199, Ex. 1, ¶ 12, 15, 70).
A. Plaintiff’s Quality of Care Complaints
Plaintiff was very outspoken about his serious concerns regarding the quality of care
provided by LMC and Northside, including concerns regarding the use of an outside dialysis
company to dialyze patients. (Doc. No. S-199, Ex. 1, ¶ 18). Plaintiff was concerned that the
outside dialysis nurses were cutting dialysis treatments short, falsely charting the length of the
dialysis actually given, intentionally crashing patients, and not showing up on time. (Doc. No.
S-199, Ex. 1, ¶ 18).
Plaintiff first brought his concerns regarding the quality of dialysis care to LMC and
Northside administrators in 2006. (Doc. No. S-199, Ex. 1, ¶ 20). Plaintiff suggested that a
reasonable solution would be for LMC to start its own dialysis program. (Doc. No. S-199, Ex. 1,
¶ 20). Plaintiff’s concerns were ignored. (Doc. No. S-199, Ex. 1, ¶ 25). At some point, Plaintiff

1

Some of the factual background is taken directly from Plaintiff’s statement of facts in his
response brief without an evidentiary citation to the record. The record in this case is
voluminous, and the Court is construing the factual background according to Plaintiff’s version
of the facts.
2

Both Northside and Defendant LMC are owned by HCA Holdings, Inc. (“HCA”). (Doc.
No. S-199, Ex. 1, ¶ 9).
2

began raising his concerns with the Florida Agency for Health Care Administration (“AHCA”).
In February of 2008, the AHCA prohibited Northside from providing dialysis for a month, which
resulted in millions of dollars in losses and embarrassing media attention.
In 2009, Plaintiff wrote to the Chief of Staff (Dr. Feinman), the LMC Board of Trustees,
and the Medical Executive Committee (“MEC”) and reiterated his quality of care concerns that
he raised in 2006. (Doc. No. S-199, Ex. 1, ¶ 23). LMC ignored Plaintiff’s concerns. (Doc. No.
S-199, Ex. 1, ¶ 25).
An example of the seriousness of Plaintiff’s concerns relates to Patient J.B. (Doc. No. S199, Ex. 1, ¶ 46). J.B. died on December 28, 2008 after LMC’s contract dialysis company did
not show up on time to administer dialysis that Plaintiff had ordered. (Doc. No. S-199, Ex. 1, ¶
46). Plaintiff reported J.B.’s case to the AHCA. (Doc. No. S-199, Ex. 1, ¶ 47). The AHCA
investigated J.B.’s case and five other patients’ cases on January 9, 2009, and the AHCA
concluded that substandard care had occurred (although it does not appear that the AHCA found
any fault by Plaintiff). (Doc. No. S-199, Ex. 1, ¶ 47, 68, fn.1; Doc. No. S-199, Ex. 1-L).
Thereafter, on June 12, 2009, a newspaper article was published about J.B.’s death at LMC and
how Plaintiff believed that J.B.’s death could have been avoided. (Doc. No. S-199, Ex. 1-J).
It is unclear how many complaints Plaintiff made to the AHCA, but it appears that
Plaintiff made another complaint to the AHCA after the complaint relating to J.B. (Doc. No. S199, Ex. 1-G). The AHCA investigated LMC again in November of 2009 and found additional
violations. (Doc. No. S-199, Ex. 1-G).
B. Alleged Racial Remarks
During his deposition, Plaintiff identified three individuals who made inappropriate

3

remarks to him regarding his Palestinian race. The three individuals are Dr. Nutinsky, Mr.
Satcher, and Dr. Feinman.3 Plaintiff, however, fails to specifically identify when these alleged
remarks occurred. (Doc. No. S-192, Ex. 4: Pla. depo, p. 333-59).
1. Nutinsky
With regards to Nutinsky, Plaintiff identifies three incidents. (Doc. No. S-192, Ex. 4:
Pla. depo, p. 333-50). The first incident occurred around 1997.4 Plaintiff contends that he and
Nutinsky (who was working on the medical staff at the time) were in LMC’s physicians’ lounge
around the time that a teenager in the state of Maryland committed a crime and fled to Israel and
state prosecutors were trying to extradite the teen. (Doc. No. S-192, Ex. 4: Pla. depo, p. 337,
341-42). Plaintiff stated to Nutinsky that the teen should stand trial in the United States, because
that is where the teen committed the crime. (Doc. No. S-192, Ex. 4: Pla. depo, p. 337).
Nutinsky responded that Plaintiff was saying that because he is a Palestinian. (Doc. No. S-192,
Ex. 4: Pla. depo, p. 338). Plaintiff attempted to defend his statement, and Nutinsky became
angry and kept saying that Plaintiff felt that way because he is a Palestinian. (Doc. No. S-192,
Ex. 4: Pla. depo, p. 338). Additionally, Nutinsky stated that Plaintiff should not be critical of
Israel because Plaintiff is a “Palestinian terrorist.” (Doc. No. S-192, Ex. 4: Pla. depo, p. 339).

3

Plaintiff was asked at his deposition whether there were any other statements (other than
those set forth in this order) made by anybody at LMC that would suggest that he was being
discriminated against because he is Palestinian, and Plaintiff responded that he could not recall
any. (Doc. No. S-192, Ex. 4: Pla. depo, p. 359).
4

Plaintiff does not identify the date that the first incident occurred, but he stated in his
deposition that it occurred around the time that there was media attention regarding a teenager in
the state of Maryland that had committed a crime and fled to Israel, and state prosecutors were
trying to extradite the teen. (Doc. No. S-192, Ex. 4: Pla. depo, p. 337, 341-42). An internet
search reveals that this event gained media coverage at the end of 1997.
4

Plaintiff believes that the second incident occurred sometime before the AHCA
prohibited Northside from providing dialysis for a month in February of 2008. (Doc. No. S-192,
Ex. 4: Pla. depo, p. 348). Plaintiff was in the parking lot at Northside and saw Nutinsky. (Doc.
No. S-192, Ex. 4: Pla. depo, p. 349). Plaintiff asked Nutinsky why his (Plaintiff’s) privileges
had only been renewed for one year, as opposed to two years. (Doc. No. S-192, Ex. 4: Pla. depo,
p. 349). Nutinsky became belligerent and raised his voice and said that he was going to shoot
Plaintiff. (Doc. No. S-192, Ex. 4: Pla. depo, p. 349). There was no mention of Plaintiff’s race
during this incident; however, Plaintiff believes that Nutinsky threatened to shoot him based on
his Palestinian race, because Plaintiff “can’t think of any other reason” why Nutinsky would
threaten to shoot him. (Doc. No. S-192, Ex. 4: Pla. depo, p. 349).
The third incident occurred in 2008 at Northside when Nutinsky was the Director of
Medical Education and Chief Medical Officer. (Doc. No. S-192, Ex. 4: Pla. depo, p. 343, 346).
This incident occurred after Plaintiff raised his quality of care concerns with the AHCA, and the
AHCA prohibited Northside from providing dialysis for a month. (Doc. No. S-192, Ex. 4: Pla.
depo, p. 344-45). Nutinsky met with Plaintiff and accused Plaintiff of trying to shut the hospital
down because Plaintiff was a “Palestinian terrorist.” (Doc. No. S-192, Ex. 4: Pla. depo, p. 345).
Plaintiff was asked during his deposition whether there were any other events, remarks,
or interactions with Nutinsky that led Plaintiff to believe that he was being discriminated against
due to his Palestinian race (other than the three incidents described above). (Doc. No. S-192, Ex.
4: Pla. depo, p. 350). Plaintiff responded that he did not remember any others at that time.5

5

In connection with his opposition to the instant motion, Plaintiff submitted a declaration
in which he now states that Nutinsky “regularly made derogatory remarks about Palestinians
generally, and [Plaintiff] specifically.” (Doc. No. S-192, Ex. 1, ¶ 30). However, because this
5

(Doc. No. S-192, Ex. 4: Pla. depo, p. 350).
2. Feinman
Plaintiff identifies one incident in which Feinman (who was a member of the MEC at the
time6) made a racial remark to him. (Doc. No. S-192, Ex. 4: Pla. depo, p. 351-59). Specifically,
Feinman spoke with Plaintiff about a problem that Satcher had regarding Plaintiff’s conversation
with the family of a patient. (Doc. No. S-192, Ex. 4: Pla. depo, p. 351). Satcher had told
Feinman that he was upset that Plaintiff had told the patient’s family that the dialysis nurse was
not properly administering dialysis, and the patient’s family complained that they did not want
that dialysis nurse performing the dialysis anymore. (Doc. No. S-192, Ex. 4: Pla. depo, p. 35152). Feinman told Plaintiff that what Plaintiff did put the doctors and hospital at risk for a
lawsuit. (Doc. No. S-192, Ex. 4: Pla. depo, p. 352). Plaintiff responded that he had no other
option than to speak to the family because his quality of care complaints had not made a
difference. (Doc. No. S-192, Ex. 4: Pla. depo, p. 353). Feinman responded, “That’s not how we
do things at Largo Medical” and that Plaintiff was “practicing medicine the Palestinian way.”
(Doc. No. S-192, Ex. 4: Pla. depo, p. 353; Doc. No. S-192, Ex. 1, ¶ 31).
Plaintiff was asked during his deposition whether there was any other conversations with
Feinman that led Plaintiff to believe that he was being discriminated against due to his

allegation of derogatory remarks made on a regular basis conflicts with Plaintiff’s deposition
testimony that he did not remember any other remarks by Nutinsky other than the three incidents
described above, the Court declines to accept this new, directly conflicting allegation that was
made without an explanation for the conflict. See Santhuff v. Seitz, 385 Fed. Appx. 939, 943
(11th Cir. 2010). Even if the Court considered this new, conflicting allegation, it would not
change the outcome in this case, because there is no evidence that Nutinsky participated in the
decision to revoke Plaintiff’s privileges.
6

Feinman was a member of the MEC from 2006 through 2009. (Doc. No. 179-25).
6

Palestinian race (other than the incident described above). (Doc. No. S-192, Ex. 4: Pla. depo, p.
356). Plaintiff responded that he did not remember any others at that time.7 (Doc. No. S-192,
Ex. 4: Pla. depo, p. 356).
3. Satcher
Plaintiff identifies one incident in which Satcher (the CEO at the time) acted
discriminatorily towards him. (Doc. No. S-192, Ex. 4: Pla. depo, p. 350-59). Specifically, after
the incident with Feinman, Plaintiff called Satcher and relayed the conversation that Plaintiff had
with Feinman, including the Palestinian comment. (Doc. No. S-192, Ex. 4: Pla. depo, p. 35354). Plaintiff stated that it was not a Palestinian issue; it was a patient care issue. (Doc. No. S192, Ex. 4: Pla. depo, p. 354). In response, Satcher laughed and told Plaintiff that he should
listen to Feinman. (Doc. No. S-192, Ex. 4: Pla. depo, p. 354).
Plaintiff was asked during his deposition whether there was any other conversations with
Satcher that led Plaintiff to believe that he was being discriminated against due to his Palestinian
race (other than the incident described above). (Doc. No. S-192, Ex. 4: Pla. depo, p. 356).
Plaintiff responded that he did not remember any others at that time. (Doc. No. S-192, Ex. 4:
Pla. depo, p. 356).

7

In connection with his opposition to the instant motion, Plaintiff submitted a declaration
in which he now states that Feinman “regularly made negative comments about [Plaintiff],
including disparaging remarks about the fact that [Plaintiff is] a Palestinian.” (Doc. No. S-192,
Ex. 1, ¶ 31). However, because this allegation of derogatory remarks made on a regular basis
conflicts with Plaintiff’s deposition testimony that he did not remember any other conversations
with Feinman other than the one described above, the Court declines to accept this new, directly
conflicting allegation that was made without an explanation for the conflict. See Santhuff, 385
Fed. Appx. at 943.
7

C. Plaintiff’s Alleged Disruptive Behavior and the Revocation of His Privileges
In 2006, the MEC appointed an Ad Hoc Committee to investigate Plaintiff’s alleged
disruptive conduct.8 (Doc. No. S-199, Ex. 1-Q). In connection with that investigation, Plaintiff
met with the Ad Hoc Committee on September 11, 2006. (Doc. No. S-199, Ex. 1-Q).
Thereafter, on October 3, 2006, LMC sent Plaintiff a letter stating that the MEC had
unanimously concluded that Plaintiff’s conduct had been disruptive and that he should not: (1)
engage in disruptive conduct when speaking with patients, patients’ families, and medical
personnel; or (2) make inappropriate entries in medical records regarding his quality of care
concerns. (Doc. No. S-199, Ex. 1-Q).
In January of 2009 (after the AHCA had investigated Plaintiff’s quality of care
complaints related to J.B.’s death), LMC had two doctors (Drs. Paladugu and Steinhoff) review
Plaintiff’s treatment of J.B., and the doctors opined that Plaintiff’s treatment was inappropriate
because Plaintiff had failed to timely see J.B. (Doc. No. 179-24, p. 4). Both Paladugu and
Steinhoff recommended that review of Plaintiff’s treatment of J.B. be referred to the MEC.
(Doc. No. 179-24, p. 4). Steinhoff presented the case of J.B. to both the Medical Care Evaluation
Committee (“MCEC”)9 and the MEC10, and Steinhoff also raised concerns regarding Plaintiff’s
treatment in other patients’ cases. (Doc. No. 179-24, p. 4-5).

8

Plaintiff states in his statement of facts that he made a report to the AHCA in July of
2006, and LMC formed an ad hoc committee to investigate Plaintiff’s alleged disruptive
behavior in August of 2006. (Doc. No. 195, p. 3).
9

In 2009, the MCEC was composed of ten members. Nutinsky, Feinman, and Satcher
were not members of the MCEC. (Doc. No. 179-25).
10

In 2009, the MEC was composed of 17 members. Feinman was Chairman of the MEC.
Nutinsky and Satcher were not members of the MEC. (Doc. No. 179-25).
8

Thereafter, the MEC invited Plaintiff to attend a meeting in February of 2009 to discuss
the case of J.B. (Doc. No. 179-24, p. 5). Additionally, LMC accused Plaintiff of engaging in
disruptive behavior due to his writing his concerns regarding the quality of care in patients’
charts, including criticizing other health care professionals. (Doc. No. S-199, Ex. 1, ¶ 36). The
MEC was not satisfied with Plaintiff’s responses to their questions. (Doc. No. 179-24, p. 5). As
a result, the MEC recommended that specific cases of Plaintiff’s patients be sent out for review
by an external peer review organization, the American Medical Foundation (“AMF”). (Doc. No.
179-24, p. 5).
AMF assigned the review of Plaintiff’s cases to Dr. Goldfarb. (Doc. No. 179-24, p. 5).
Goldfarb was critical of Plaintiff’s behavior and the quality of care that Plaintiff had provided.
(Doc. No. 179-24, p. 5). Goldfarb recommended that Plaintiff obtain counseling regarding
dispute resolution and professionalism and that Plaintiff attend continuing education in the area
of fluid and electrolyte management. (Doc. No. 179-24, p. 5). The MEC sent Goldfarb’s report
to the MCEC for review. (Doc. No. 179-24, p. 5).
Plaintiff contends that the review of his conduct was done in a manner that was
inconsistent with the medical staff bylaws and was done with the discriminatory intent to target
him because he is Palestinian. For example, LMC had AMF review Plaintiff’s treatment of J.B.,
but LMC did not give AMF J.B.’s entire medical records. Instead, LMC left out critical lab
reports and rhythm strips to make it appear that Plaintiff’s treatment of J.B. was inappropriate.
On September 21, 2009, LMC sent Plaintiff a letter informing him that the MCEC had
begun a focused peer review of his performance in certain identified cases. (Doc. No. S-199,
Ex. 1-Q). In the letter, LMC invited Plaintiff to attend the MCEC’s meeting on October 7, 2009

9

to discuss the peer review. (Doc. No. S-199, Ex. 1-Q). Additionally, the letter informed
Plaintiff that the MCEC would also be addressing his professional conduct that resulted in an
interview with the Ad Hoc Committee in 2006, because some of the problems that were
addressed at that time needed to be addressed again. (Doc. No. S-199, Ex. 1-Q). Finally, LMC
stated that the preliminary findings of the MCEC were that there had been continued incidents of
disruptive behavior, inappropriate entries in medical charts,11 and problems with: (1) electrolyte
management, (2) rounding on patients , (3) timely assessments, (4) communicating with family
members and staff, and (5) professionalism. (Doc. No. S-199, Ex. 1-Q).
Thereafter, on October 27, 2009, LMC sent Plaintiff a letter acknowledging that Plaintiff
had notified LMC that he was unable to attend the October 7, 2009 meeting and requested a new
meeting date with more advance notice. (Doc. No. S-199, Ex. 1-N). In this letter, LMC stated
that it would reschedule the meeting via a separate letter. (Doc. No. S-199, Ex. 1-N). However,
even though a new meeting was being scheduled, the letter informed Plaintiff that the MEC had
found that an alternative to corrective action was appropriate. (Doc. No. S-199, Ex. 1-N).
Specifically, the MEC was requiring Plaintiff, within 30 days, to: (1) enroll in the Physician
Recovery Network (“PRN”) to obtain counseling and education on anger management and
professionalism; and (2) select continuing education in the area of fluid and electrolyte
management and sodium/water balance.12 (Doc. No. S-199, Ex. 1-N). This letter was signed by

11

Plaintiff would write requests for incident reports in the charts of patients that detailed
specific and serious quality of care issues, many of which led to the AHCA investigations and
citations. (Doc. No. S-199, Ex. 1, ¶ 75).
12

One of Plaintiff’s sub-specialties within nephrology is fluid and electrolyte
management, and he has given lectures on that topic. (Doc. No. S-199, Ex. 1, ¶ 74). As such,
Plaintiff believes that LMC’s requirement that he take continuing education on this subject was
10

Feinman (as Chief of Staff) and Satcher (as Chief Executive Officer). (Doc. No. S-199, Ex. 1N). The next day, on October 28, 2009, LMC sent Plaintiff a letter informing him that the
MCEC would be meeting on November 12, 2009 and inviting him to come to the meeting to
discuss his performance relating to certain identified cases. (Doc. No. S-199, Ex. 1-M).
Plaintiff did not attend the November 12, 2009 meeting, and instead, Plaintiff submitted
written responses to the MCEC’s concerns at the end of November and early December. (Doc.
No. 179-24, p. 7-8). However, Plaintiff did not provide proof of enrollment in the PRN or of his
selection of continuing education courses by the November 30, 2009 deadline. (Doc. No. 17924, p. 8).
On December 8, 2009, the MEC met and discussed Plaintiff’s failure to enroll in the PRN
or select continuing education courses. (Doc. No. 179-24, p. 8). During the meeting, a motion
was made to terminate Plaintiff’s privileges due to his failure to enroll in the PRN or select
continuing education courses. (Doc. No. 179-24, p. 8). The motion was passed by a vote of
twelve for revocation (one member abstained from voting and one member did not cast a vote).
(Doc. No. 179-24, p. 8). However, on December 16, 2009, LMC gave Plaintiff one final
opportunity to enroll in the PRN and select continuing education courses by December 18, 2009.
(Doc. No. 179-49). Plaintiff did not comply.
On December 21, 2009, LMC sent Plaintiff a letter that stated that the MEC had met on
December 8, 2009 and recommended revocation of Plaintiff’s staff privileges because Plaintiff
had failed to enroll in the PRN and failed to select continuing education courses pursuant to
LMC’s October 27, 2009 letter. (Doc. No. S-199, Ex. 1-O; Doc. No. 179-24, p. 8). This letter

purposefully offensive. (Doc. No. S-199, Ex. 1, ¶ 74).
11

was signed by Feinman and Satcher. (Doc. No. S-199, Ex. 1-O).
In response, on January 21, 2010, Plaintiff requested a hearing and appellate review of
the MEC’s recommendation that his privileges be revoked. (Doc. No. S-199, Ex. 1-P). On
September 23, 2010, LMC sent Plaintiff a letter setting a hearing for November 9, 2010. (Doc.
No. S-199, Ex. 1-Q). LMC’s letter informed Plaintiff of the identity of the three-person Hearing
Committee (Drs. Rosin, Requena, and Ramamurthy) and of the Hearing Officer (James Case).
(Doc. No. S-199, Ex. 1-Q). Additionally, LMC identified its intended witnesses, which included
Feinman. (Doc. No. S-199, Ex. 1-Q). This letter was signed by Satcher. (Doc. No. S-199, Ex.
1-Q). The hearing was conducted on November 9, 10, and 22, 2010. (Doc. No. S-199, Ex. 1-R).
Plaintiff contends that the hearing was conducted in a manner that was inconsistent with
the medical staff bylaws and was done with the discriminatory intent to target him because he is
Palestinian. For example, Plaintiff contends that two of the three members of the Hearing
Committee (Drs. Requena and Ramamurthy) should not have been appointed to the Hearing
Committee, because Requena participated in the 2006 investigation of Plaintiff’s allegedly
disruptive conduct and Ramamurthy was not a member of LMC’s medical staff.
On January 12, 2011, the Hearing Committee issued its report, in which it made the
following findings and conclusions: (1) Plaintiff failed to comply with the MEC’s requirements
that he enroll in the PRN and select continuing education courses, and he failed to show that
such requirements were unreasonable or that he was justified in failing to comply; and (2)
Plaintiff’s approach to resolving quality of care concerns in the hospital was disruptive. (Doc.
No. S-199, Ex. 1-R). As a result, the Hearing Committee concluded that there was a sufficient
basis for the MEC’s decision to revoke Plaintiff’s privileges. (Doc. No. S-199, Ex. 1-R).

12

However, the Hearing Committee ended the report with a non-binding suggestion that the MEC
consider giving Plaintiff one final opportunity to comply with the MEC’s requirements that he
enroll in the PRN and select continuing education courses. (Doc. No. S-199, Ex. 1-R). On
January 18, 2011, the MEC met to consider the Hearing Committee’s report and “an
overwhelming majority” of the MEC voted to affirm the revocation of Plaintiff’s privileges.13
(Doc. No. S-199, Ex. 1-R). On January 19, 2011, LMC sent a letter to Plaintiff informing him of
the Hearing Committee’s report and the MEC’s decision. (Doc. No. S-199, Ex. 1-R).
Plaintiff submitted a written appeal to LMC’s Board of Trustees. On May 5, 2011, LMC
sent Plaintiff a letter that stated that after the completion of appellate review conducted at their
May 3, 2011 meeting, LMC’s Board of Trustees upheld the recommendation of the MEC and
Hearing Committee to revoke his privileges. (Doc. No. S-199, Ex. 1-S). This letter was signed
by Satcher. (Doc. No. S-199, Ex. 1-S).
D. Lawsuit
On July 25, 2011, Plaintiff filed suit against LMC. In his Second Amended Complaint,
Plaintiff asserts five claims: (1) a § 1981 claim seeking damages, (2) a § 1981 claim seeking
injunctive relief, (3) a fraud claim, (4) a breach of medical staff bylaws claim seeking damages,
and (5) a breach of medical staff bylaws claim seeking injunctive relief.
III. Motion for Summary Judgment
In the instant motion, LMC seeks summary judgment on all of Plaintiff’s claims. As
explained below, the Court finds that LMC is entitled to summary judgment on Plaintiff’s § 1981

13

In 2011, the MEC was composed of 13 members. Nutinsky, Feinman, and Satcher were
not members of the MEC in 2011. (Doc. No. 179-25).
13

claims and declines to exercise supplemental jurisdiction over the remaining state law claims.
A. Section 1981 Claims
Plaintiff asserts two § 1981 race discrimination claims against LMC.14 When analyzing
these claims, the Court employs the following framework:15
[T]he burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),
applies. Under this framework, the plaintiff must first establish a
prima facie case, which creates a presumption of unlawful
discrimination . . . . The employer may then rebut that presumption
with legitimate, non-discriminatory reasons for the adverse
employment acts. The employee must then proffer sufficient
evidence to create a genuine issue of material fact that the defendant's
articulated reasons are pretextual.
Beal v. Convergys Corp., 489 Fed. Appx. 421, 423 n.4 (11th Cir. 2012)(internal citation
omitted).
In order to establish a prima facie case, Plaintiff must show: (1) that he is a member of a
protected class (he is Palestinian); (2) that he was subjected to an adverse employment action
(his medical staff privileges were revoked); (3) that LMC treated similarly-situated, nonPalestinian doctors more favorably; and (4) that he was qualified to have privileges at LMC. See
Lewis v. City of Kennesaw, Georgia, 504 Fed. Appx. 880, 882 (11th Cir. 2013)(citation
omitted). The parties dispute whether Plaintiff can show that LMC treated similarly-situated,

14

Section 1981 “protects an individual's right to be free from discrimination in the
‘making, performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.’” Lewis v. City of
Kennesaw, Georgia, 504 Fed. Appx. 880, 881 (11th Cir. 2013)(quoting 42 U.S.C. § 1981(a),
(b)).
15

Section 1981 and Title VII claims are analyzed under the same analytical framework.

See id.
14

non-Palestinian doctors more favorably. The Court notes that “[w]hen a plaintiff alleges
discriminatory discipline, the quantity and quality of the comparator's misconduct must be nearly
identical to the plaintiff's.” Id. (citation omitted).
In the instant case, Plaintiff identifies 23 alleged comparators, but Plaintiff does not
devote any significant time in his brief addressing the similarity of the comparators to Plaintiff.
At the hearing, Plaintiff attempted to expand on this issue with regards to three
comparators—Comparators 1, 13, and 17.16 Plaintiff focused on the comparator’s alleged
“unprofessional” conduct and compared it with Plaintiff’s alleged incidents of disruptive
behavior, inappropriate entries in medical charts, lack of professionalism, and problems with
electrolyte management. However, Plaintiff’s alleged inappropriate behavior was only one of
the reasons that his privileges were revoked; the other reason was his failure to comply with the
requirements that he enroll in the PRN and select continuing education courses. As such, the
relevant comparators are doctors who were disruptive and refused to comply with LMC’s
informal requirements (such as obtaining counseling and/or attending continuing education
courses) but did not have their staff privileges revoked. Plaintiff does not identify any such
doctors, and consequently, Plaintiff fails to show that any similarly situated comparators were
treated more favorably.
Even though Plaintiff cannot establish that LMC treated similarly-situated, nonPalestinian doctors more favorably, the Court notes that such does not automatically end the
inquiry:

16

At the end of the hearing, Plaintiff also requested that the Court consider Comparator

18.
15

The McDonnell Douglas framework is not, however, the only way to
use circumstantial evidence to survive a motion for summary
judgment, and a plaintiff's failure to produce a comparator does not
necessarily doom his case. Rather, the plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates
a triable issue concerning the employer's discriminatory intent. A
triable issue of fact exists if the record, viewed in a light most
favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.
Lewis, 504 Fed. Appx. at 882 (quotation marks and internal citations omitted). Plaintiff,
however, has not shown that the record, viewed in the light most favorable to him, presents
circumstantial evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.
The only discriminatory remarks identified by Plaintiff are from three people: (1)
Nutinsky, (2) Satcher, and (3) Feinman. Plaintiff conceded at the hearing that Nutinsky was not
involved in the decision-making process that resulted in the revocation of Plaintiff’s privileges.
Thus, only Satcher and Feinman are decision-makers that are alleged to have discriminatory
animus. Further, the only discriminatory remark that was made (and could be considered
evidence of racial animus) was Feinman’s one comment to Plaintiff. Specifically, Feinman and
Plaintiff were discussing an incident where Plaintiff told a patient’s family that a dialysis nurse
was not properly administering dialysis, and Plaintiff stated that he had no other option than to
speak to the family because his quality of care complaints had not made a difference. In
response, Feinman stated, “That’s not how we do things at Largo Medical” and that Plaintiff was
“practicing medicine the Palestinian way.” (Doc. No. S-192, Ex. 4: Pla. depo, p. 353; Doc. No.
S-192, Ex. 1, ¶ 31). This one comment is not sufficient to create “a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination by the
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decisionmaker.” Lewis, 504 Fed. Appx. at 882 (quotation marks and internal citations omitted).
Furthermore, other decision-makers on the MCEC, MEC, Hearing Committee, and Board
of Trustees (whom are not alleged to have a discriminatory animus toward Plaintiff) were
involved in the decision to revoke Plaintiff’s privileges, and their involvement affects Plaintiff’s
§ 1981 claim. In such a situation, any alleged bias on the part of one member of a decisionmaking committee cannot be imputed to the entire committee. See Rolle v. Worth County
School District, 128 Fed. Appx. 731, 733 (11th Cir. 2005); Conner v. Lafarge North America,
Inc., 343 Fed. Appx. 537, 543-44 (11th Cir. 2009); Warner v. Columbia/JFK Medical Center,
LLP, 305 Fed. Appx. 610, 612 (11th Cir. 2008).
For example, in Rolle, the plaintiff filed a discrimination lawsuit against the Worth
County Board of Education. See Rolle, 128 Fed. Appx. at 731. The Rolle court concluded that
the plaintiff’s claim failed, because he did not show that a majority of the Board was motivated
by an improper purpose. See id. at 733. Instead, the Rolle court stated that “the only possible
evidence of motive relates to a single Board member, but an improper motive of one member
does not impart discrimination on the entire Board.” Id.; see also Conner, 343 Fed. Appx. at 544
(stating that any alleged bias on the part of one member of an interview panel could not be
imputed to the entire panel).
Likewise, in Warner, the plaintiff brought a discrimination lawsuit against a hospital
regarding the hospital’s credentialing process. See Warner, 305 Fed. Appx. at 610. When the
case went to trial, the district court instructed the jury that the plaintiff had to prove that a
majority of the credentialing committee were unlawfully motivated by race. See id. at 611. The
jury found in favor of the hospital, and the plaintiff appealed. See id. Upon review, the

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appellate court concluded that the jury instruction was a correct statement of the law. See id. at
612.
In the instant case, Plaintiff has not presented any evidence that a majority of any of the
committees involved in the decision to revoke his privileges—the MCEC, the MEC, the Hearing
Committee, or the Board of Trustees—harbored racial animus. Given the multi-level review that
occurred and given that many people formed the committees that made the decision or
recommendation at each level of review, the Court concludes that the evidence of alleged racial
animus by Satcher and Feinman is not sufficient to create a genuine issue of material fact
regarding whether the decision to revoke Plaintiff’s privileges was motivated by race
discrimination.
However, even if Plaintiff could establish a prima facie case of race discrimination, LMC
has asserted a legitimate, non-discriminatory reason for its decision to revoke Plaintiff’s
privileges—Plaintiff failed to enroll in the PRN or select continuing education courses. Plaintiff
contends that the proffered reason is pretextual, because LMC did not strictly adhere to Section
3.19 of the Bylaws17 for dealing with Plaintiff’s alleged disruptive behavior. However, as
previously stated, Plaintiff’s alleged disruptive behavior is only one of the reasons given for the
revocation of his privileges; his failure to enroll in the PRN and select continuing education
courses is the other reason. It is undisputed that Plaintiff failed to comply with LMC’s directives
that he enroll in the PRN and select continuing education courses, and Plaintiff has not addressed
that legitimate, non-discriminatory reason head on to rebut it. Thus, Plaintiff has not shown that
LMC’s reason that Plaintiff failed to comply with its directives is pretextual, since Plaintiff has

17

Section 3.19 of the Bylaws can be found at Doc. No. 46-11, at pages 15 through 18.
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not “shown both that the reason was false and that discrimination was the real reason.” Garcia v.
DS Waters of America, Inc., 372 Fed. Appx. 925, 927 (11th Cir. 2010)(citation omitted).
Accordingly, for the reasons set forth above, the Court concludes that Plaintiff has not
shown that a genuine issue of material fact exists regarding whether he can show a prima facie
case of discrimination or that LMC’s proffered reason was pretextual. Therefore, Defendant is
entitled to summary judgment on Plaintiff’s discrimination claims.
B. Supplemental Jurisdiction
Because this Court has granted summary judgment on Plaintiff’s federal claims, this
Court may decline to exercise supplemental jurisdiction over the remaining state law claims,
pursuant to 28 U.S.C. § 1367(c)(3). Upon consideration, the Court declines to exercise
supplemental jurisdiction over the remaining state law claims.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Defendant’s Motion for Summary Judgment (Doc. No. 179) is GRANTED TO
THE EXTENT that Defendant seeks summary judgment on Plaintiff’s § 1981
claims.

(2)

The Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims.

(3)

The Clerk is directed to terminate all remaining pending motions, to enter
judgment in favor of Defendant on Counts I and II, and to close the case.

DONE AND ORDERED at Tampa, Florida, this 21st day of August, 2013.

Copies to: Counsel of Record

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