Andrew, MD v. Hamilton County Public Hospital et al

Filing 47

OPINION and Order granting in part and denying in part 32 Motion for Partial Summary Judgment. The part of the summary judgment as to the age discrimination claims in Count III of the First Amended Complaint is granted, and summary judgment on th at claim shall enter accordingly. The remaining parts of the Motion, seeking partial summary judgment on Count I and summary judgment on the entirety of Counts II, IV, and V, is denied without prejudice. The remaining claims in Counts I, II, IV, and V, are remanded to the Iowa District Court for Hamilton County. Signed by Judge Mark W Bennett on 8/30/2018. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
MARK H. ANDREW, M.D.,
No. C 17-3053-MWB
Plaintiff,
vs.
HAMILTON COUNTY PUBLIC
HOSPITAL, d/b/a VAN DIEST
MEDICAL CENTER, and LORI
RATHBUN,

OPINION AND ORDER
REGARDING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT

Defendants.
___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Factual Background ............................................................... 2 
1. 
The parties ................................................................... 2 
2. 
Dr. Andrew’s employment agreement and amendments ............ 3 
3. 
Dr. Andrew’s employment ................................................ 5 
4. 
Concerns and investigations .............................................. 7 
5. 
The termination and aftermath ........................................ 12 
B. 
Procedural Background ......................................................... 14 

II. 

LEGAL ANALYSIS ...................................................................... 16 
A. 
Summary Judgment Standards ................................................. 16 
B. 
The Age Discrimination Claims................................................ 17 
1. 
Arguments of the parties ................................................ 18 
2. 
Analysis .................................................................... 21 
a. 
Applicable standards ............................................ 21 
b. 
Application of the standards ................................... 23 
C. 
Retention Of Jurisdiction ....................................................... 28 

III. 

CONCLUSION ............................................................................ 31 

A general surgeon who was employed by a rural county hospital brought this
lawsuit against the hospital and its chief executive officer asserting that his termination,
allegedly arising from concerns about his prescribing practices and patient care issues,
was in breach of contract, a breach of fiduciary duty, and a violation of state and federal
age discrimination laws, and that reports of his allegedly improper prescribing practices
to the state board of medicine and the National Practitioner Data Bank were defamatory
and libelous per se. The defendants have moved for summary judgment on parts of the
surgeon’s claim of breach of contract and on his other claims in their entirety. I must
decide if the surgeon has generated genuine issues of material fact on the challenged
claims.
I.
A.

INTRODUCTION
Factual Background

This statement of the factual background does not necessarily set out all the parties’
factual allegations in support of and resistance to the defendants’ Motion For Partial
Summary Judgment. Rather, it focuses on the key facts to put in context the parties’
disputes. Unless otherwise indicated, the following facts are undisputed, at least for
purposes of summary judgment.
1.

The parties

Plaintiff Dr. Mark Andrew was employed as a general surgeon by defendant
Hamilton County Public Hospital, doing business as Van Diest Medical Center (VDMC),
in Webster City, Iowa, from 2008 until he was terminated on December 15, 2016. For
much of Dr. Andrew’s employment with VDMC, he also served on the hospital’s medical
executive committee.
2

Defendant Lori Rathbun was the Chief Executive Officer (CEO) of VDMC from
January 2014 through June 2017, when she resigned for health reasons. As CEO,
Ms. Rathbun’s duties included managing VDMC, hiring physicians, promoting patient
safety and quality of care, negotiating employment contracts, and terminating VDMC
employees. Although she was not a physician, Ms. Rathbun frequently made decisions
that involved medical issues. She relied on advice from the President of VDMC’s
Medical Executive Committee, VDMC’s Chief Nursing Officer, and her medical staff
consultant, who were Dr. Nicole Ehn, Lisa Ridge, and Dr. Scott Altman, respectively,
at the pertinent time. Ms. Rathbun passed away on February 21, 2018. Lisa Ridge, who
had been VDMC’s Chief Nursing Officer, is now the CEO of VDMC.
2.

Dr. Andrew’s employment agreement and amendments

At times relevant, here, Dr. Andrew’s employment with VDMC was governed by
a contract (Agreement), executed on August 11, 2014, by Dr. Andrew and Ms. Rathbun.
The Agreement was for an initial three-year term and would automatically renew for an
additional three years, unless either party gave ninety days’ notice of intent not to renew.
Defendants’ Appendix at 99 (Agreement, § 9, “Term and Termination”). The parties
agree that the most relevant terms of the Agreement are the following ones, which pertain
to termination:
This Agreement may be terminated prior to the
expiration of any Term as follows:
a.
Without Cause. Either party may unilaterally
terminate this Agreement without cause at any time by
notifying the other party in writing of its intention to terminate
at least 90 days prior to termination. In the event Hospital
terminates this Agreement pursuant to this Section 9(a)
Hospital may, at its option, relieve Physician of his duties
under the Agreement during the notice period. If Hospital
elects this option, Physician will continue to be eligible for
employee benefit plans and will receive his compensation
3

payments in accordance with Exhibit B during the notice
period. Any bonuses owed to Physician pursuant to this
Agreement will be determined and pro-rated based on the date
Physician is relieved of his duties.
***
d.
Immediate Termination By Hospital. This
Agreement shall terminate immediately in the event Physician
fails to meet any of the qualifications provided in Section 3 of
this Agreement or if Hospital determines in good faith that:
(i)
Physician is not providing adequate
patient care or the safety of patients is jeopardized[.]
Defendants’ Appendix at 99-100. The Agreement also includes, inter alia, other grounds
for immediate termination not at issue here, id. at 100 (Agreement, § 9(d)(ii)-(ix)), as
well as a provision concerning “For Cause Termination,” upon thirty days’ notice, and
a provision concerning termination for “Insolvency” of VDMC. Id. (Agreement, § 9(e)(f)).
In a provision regarding “Effect of Termination,” the Agreement also states,
Termination of Physician’s employment shall be governed
solely by this Agreement and shall not be subject to the
corrective action, termination or grievance procedures
applicable to other employees of Hospital or to the hearing
and appeal procedures set forth in the medical staff bylaws.
Defendants’ Appendix at 101 (Agreement, § 9(h), last sentence). Dr. Altman testified in
deposition that “a system evolved where there’s medical leadership and there’s hospital
leadership, and they have sort of a co-equal relationship. And the medical leadership’s
job is to ensure quality of care and the administrative leader’s role is to ensure the delivery
of care.” The defendants admit that there was a peer review procedure, pursuant to
hospital staff bylaws, and that the peer review procedure had been used several times

4

prior to December of 2016, but they deny that the peer review procedure was applicable
to Dr. Andrew because of the last sentence of § 9(h) of his Agreement.
The Agreement was amended twice, once by an amendment executed on
December 15, 2015, and again by an amendment executed on October 24, 2016. Both
amendments reduced Dr. Andrew’s compensation, but did not change the provisions
quoted, just above, or change the three-year term of the Agreement.
3.

Dr. Andrew’s employment

The parties agree that Dr. Andrew was a highly-paid member of the VDMC staff,
which Dr. Andrew contends was appropriate in light of his education and training as a
general surgeon, his thirty-one years of experience in the field, and his countless hours
on call. Dr. Andrew had discussed with Ms. Rathbun his plan to retire at age 65, at the
end of 2019.

Dr. Andrew alleges that, from the beginning of Ms. Rathbun’s

employment, she made clear that she thought he was overpaid, but the defendants admit
only that Ms. Rathbun informed Dr. Andrew that his productivity did not meet hospital
standards for what he was being paid. Ms. Rathbun’s concerns with Dr. Andrew’s
productivity prompted the two amendments to Dr. Andrew’s employment Agreement in
December 2015 and October 2016. The parties dispute whether Dr. Andrew agreed, at
the time, that the reductions were justified on the basis of low productivity. Dr. Andrew
contends that several years of administrative actions at VDMC led to low referrals from
area physicians to VDMC. Nevertheless, Dr. Andrew estimates that, over the course of
his career, he performed over 7,000 procedures, and from 2012 to 2016, Dr. Ehn
personally referred 30 to 50 cases to him.
In the summer of 2012, Dr. Andrew began providing backup call coverage at
Hanson Family Hospital in Iowa Falls, Iowa. In 2014, Dr. Andrew was contracted to
cover call on alternating weekends at Hanson Family Hospital, which gradually morphed
into clinic days and then developed into a supplemental contract for shared services with
5

Iowa Falls. In late 2015, Ms. Rathbun leased Dr. Andrew’s surgical services to Hansen
Family Hospital. Dr. Andrew remained employed by VDMC, and Hansen Family
Hospital reimbursed VDMC for Dr. Andrew’s surgical services.

Under the lease

arrangement, Dr. Andrew spent approximately 50% of his time providing services at
Hansen Family Hospital. The defendants contend that leasing Dr. Andrew’s services to
Hansen Family Hospital was an effort to improve his productivity, which Dr. Andrew
denies. The parties agree that Ms. Rathbun planned to continue to lease Dr. Andrew’s
services to Hansen Family Hospital throughout the duration of his contract because it was
a good source of revenue for the hospital.
In the summer of 2016, after Ms. Rathbun had agreed to lease Dr. Andrew’s
services to Hansen Family Hospital, she hired Dr. Gayette Grimm, a general surgeon,
on a part-time basis to provide general surgery services and OB call coverage. The
defendants contend that Ms. Rathbun hired Dr. Grimm primarily because Dr. Andrew
was spending approximately 50% of his time providing services to Hansen Family
Hospital, but also to help increase VDMC’s revenue and as part of VDMC’s long-term
planning for surgical coverage after Dr. Andrew’s retirement. Dr. Andrew, alleges,
however, that Ms. Rathbun required that all new cases be referred to Dr. Grimm, which
made it impossible for Dr. Andrew to improve his productivity. The defendants deny
that all new cases were to be referred to Dr. Grimm. Rather, they allege that new
referrals were made to Dr. Grimm if she was scheduled to work on that day, because she
was designated as the “primary” at VDMC.

The defendants allege that, before

Dr. Grimm was hired, VDMC had to rely on a single provider—Dr. Andrew—for all
surgical coverage and had been using an expensive locum tenens service to cover when
Dr. Andrew was unavailable. Dr. Andrew counters that, if he was unavailable, the
surgical call coverage was generally left uncovered, while another medical group covered
caesarean section calls.
6

In the fall of 2016, VDMC made the decision to hire its own OB/GYN, and
eventually hired Dr. Bedi in November 2016 to provide OB/GYN services for VDMC.
Dr. Bedi had previously been part of an independent group with which VDMC had
contracted to provide such services. He was not a general surgeon, like Dr. Andrew,
and the only overlap in duties between the two was the performance of caesarean sections.
4.

Concerns and investigations

Ms. Rathbun testified in deposition that Lisa Ridge, the Chief Nursing Officer,
learned that, on November 15, 2016, a pharmacist at HyVee notified VDMC’s Quality
Manager, Peggy Roberts, that she had concerns about the prescriptions that Dr. Andrew
had been writing for one of his patients, T.C. Ms. Rathbun testified that it was “very
unusual” for an outside pharmacist to call and highlight a concern to the quality manager
at a hospital. Dr. Andrew contends that both of these statements are hearsay. It is
undisputed that Dr. Andrew treated T.C. from July of 2012 until November of 2016,
which Dr. Andrew admits was an unusually long time for a general surgeon to treat a
patient, and that he assumed pain management care for T.C., even though he was not a
pain specialist. Dr. Andrew alleges, however, that the time period was not unreasonable
in light of T.C.’s surgical issues, and he denies that he violated any standard of practice
in providing pain management to T.C. After Ms. Ridge brought the pharmacist’s concern
to Ms. Rathbun’s attention, Ms. Rathbun directed that Ms. Ridge promptly commence
an investigation.
Ms. Ridge examined T.C.’s medical chart and his report from the Prescription
Monitoring Program (PMP). The PMP is a program run by the Iowa Board of Pharmacy
and provides authorized providers and pharmacists with information regarding their
patients’ use of controlled substances. Review of a patient’s PMP can give a prescribing
doctor information about whether a patient is misusing narcotics. Dr. Andrew was an
authorized prescriber in Iowa and had credentials to access the PMP. As a general
7

surgeon, Dr. Andrew could prescribe opioids to his surgical patients; however, as
mentioned, above, he was not a pain specialist. Dr. Andrew testified that opioids and
narcotics, like Hydrocodone and Vicodin, can be addictive and present a higher risk of
overdose than other types of pain medication. Ms. Ridge wrote a report that summarized
her review of T.C.’s PMP and patient charts, and noted the total number of narcotic pills
prescribed to T.C. by Dr. Andrew during Dr. Andrew’s treatment of T.C. Ms. Ridge
reported that she had learned from the pharmacist at HyVee that other local pharmacists
had raised similar concerns about Dr. Andrew’s care of T.C., but Dr. Andrew contends
this statement is hearsay.

Ms. Ridge provided her report to Ms. Rathbun, and

Ms. Rathbun, in turn, directed Dr. Ehn to review the matter in her role as Medical
Director of the VDMC Medical Staff.
Dr. Ehn evaluated T.C.’s PMP, T.C.’s patient chart, and Ms. Ridge’s report.
Dr. Ehn was concerned because she thought it was unusual for a general surgeon, like
Dr. Andrew, to be providing chronic pain management, especially in light of
Dr. Andrew’s failure to utilize tools, such as the PMP, consultation with a pain specialist,
a pain contract, or drug screenings. She also noted that she had “never seen” multiple
prescriptions written for narcotics on the same day, which was reflected in the material
she reviewed. Dr. Ehn was further concerned at the lack of documentation in T.C.’s
patient chart of extensive consultation and counseling prior to T.C.’s right orchiectomy.
Dr. Andrew denies that Dr. Ehn’s “concerns” were founded on any standard of practice
applicable to general surgeons, and he denies that he violated any standard of practice in
providing pain medication to T.C.
On December 8, 2016, Dr. Ehn convened a meeting with Dr. Andrew,
Ms. Ridge, and Dr. Altman. Dr. Andrew points out that he was the only general surgeon
at the meeting, but the defendants point out that nothing in Dr. Andrew’s Agreement
required that only general surgeons could give feedback to the CEO regarding
8

employment decisions or a physician’s performance.

Dr. Ehn led the meeting and

discussed Dr. Andrew’s care of T.C. In response to questions from Dr. Ehn, Dr. Andrew
informed the group that he typically limited his pain management care to postoperative
opioid medications, and that his prescription for pain medication for a longer period of
time, as in T.C.’s case, was rare. Dr. Ehn also asked whether it was common practice
for Dr. Andrew to provide chronic narcotic medication for his patients, and he admitted
that it was not. Dr. Andrew also admitted that he did not have T.C. sign a pain
management contract, did not query the PMP, and did not obtain a consultation with a
urologist prior to surgically removing both of T.C.’s testicles. Dr. Andrew denies that
any of these things were required or that he violated a standard of practice.
After the meeting, Dr. Ehn wrote a report, which appears in its entirety at
Defendants’ Sealed Appendix, 79-82. The defendants contend that the pertinent part of
Dr. Ehn’s report is the conclusion, which was as follows:
After reviewing [T.C.’s] chart, associated documentation and
interviewing Dr. Andrew, I have remaining concerns about
this case. First, it is unusual for a general surgeon to provide
chronic pain management. Dr. Andrew states that he felt that
[T.C.’s] pain was related to surgical issues, however it is
noted several times in the chart that [T.C.’s] pain is likely
related to his chronic orthopedic pain, arthritis in his hips and
lumbar spine. Second, [T.C.] was prescribed a large amount
of pain medication over the last 4 years. This was not
adequately monitored by Dr. Andrew. He did not utilize the
[prescription] monitoring program and he did not confirm use
with urine drug screens. He did not have the patient sign any
contract regarding prescription of controlled substances. I
continue to have questions regarding the medical treatment of
this patient’s testicular pain and subsequent bilateral
orchiectomy. There does not appear to be any significant
discussion about the after effects of a bilateral orchiectomy,
the need for testosterone replacement and the risks and
9

benefits of that. I wonder if a referral for a second opinion
about his chronic testicular pain would have been appropriate
prior to removing the second testicle. Lastly, the patient
appears to have filled duplicate or multiple prescriptions,
written on the same day, by Dr. Andrew, for large quantities
of opioid medication. This raises questions about whether the
patient was fraudulently manipulating prescriptions or if the
physician was providing multiple, large quantity
prescriptions.
Defendants’ Appendix at 81-82.1
Dr. Andrew testified that he did not look at the PMP report but, in retrospect,
should have, because duplication of prescriptions would have been something that he
potentially would have been picked up on a review of the PMP. However, he denies that
failure to do so was below a medical standard of care. Dr. Andrew only recalled
consulting the PMP once during his employment with VDMC, “initially just when [the
PMP] first came out, just from a curiosity standpoint, but no other reason,” and he admits
that he never consulted the PMP for T.C. When he reviewed T.C.’s PMP at his
deposition, Dr. Andrew observed that T.C. appeared to be “double-double or tripledipping” on single prescriptions that he had written for T.C. and that, had he learned
about this issue earlier, he would have “[p]robably discharged [T.C.] from my practice.”
1

Although Dr. Ehn’s report is provided in the sealed part of the Defendants’
Appendix, the parties did not request that their statements of fact, in which the quoted
portion appears, be sealed. Dr. Andrew denies that the statement of this paragraph in
the defendants’ statement of undisputed facts accurately quotes Dr. Ehn’s report, but he
has not identified in what ways it is inaccurate. My review indicates that the only
“inaccuracies” in the defendants’ quotation of this paragraph are the substitution
“[T.C.’s] chart” for “the chart” and the substitution of “T.C.” for the patient’s name,
substitution of “[four] years” for “4 years,” and insertion of “physician [sic] monitoring
program.” I have not adopted those last two alterations in my quotation of the paragraph
of the report, here. Rather, I have used “4 years,” as stated in the original, and
“[prescription] monitoring program,” which is the proper name of the program.
10

Dr. Andrews denies, however, that he ever gave T.C. three prescriptions on the date “at
issue.”
After reviewing Dr. Ehn’s report, Ms. Rathbun was troubled by Dr. Andrew’s
patient care. More specifically, she was concerned that Dr. Andrew did not have a pain
contract with T.C.; about the length of time Dr. Andrew treated T.C., because it was
unusually long for his practice; and because it appeared to her that T.C. was seeing
Dr. Andrew “as almost his family practice provider or pain specialist.” The amount of
hydrocodone prescribed to T.C. over a four-year period—approximately 11,940 doses—
was also a significant concern for Ms. Rathbun, because she believed it was “excessive”
based on consultation with Ms. Ridge, Dr. Ehn, and Dr. Altman. Ms. Rathbun also
concurred in Dr. Ehn’s concern about the absence of significant discussion by
Dr. Andrew with T.C. about the aftereffects of a bilateral orchiectomy, the need for
testosterone replacement, and its risks and benefits. However, Dr. Andrew denies the
truth of Ms. Rathbun’s opinions, denies that she was qualified to offer those opinions,
and contends that alleged “overprescribing” is not supported by the opinions of either his
expert or the defendants’ expert, which the defendants dispute. Dr. Andrew also points
out that Ms. Rathbun did not seek input from Dr. Altman and Dr. Ehn on the level of
severity of the medical concerns, that is, whether they rose to the level requiring
immediate termination, which the defendants admit, although they point out that only
Ms. Rathbun had the power to terminate Dr. Andrew.
Ms. Ridge also identified another patient, L.H., whom Dr. Andrew had treated
for a cyst over a two-year period, from early 2014 to early 2016, and for whom she
believed that Dr. Andrew had assumed pain management care, without reviewing L.H’s
PMP, utilizing drug testing, or asking her to enter into a pain management contract.
Dr. Andrew denies that he assumed pain management care for L.H.; rather, he alleges

11

that he provided periodic treatment to L.H. related to various surgical complaints. He
also denies that it was necessary to take any of the actions identified.
Dr. Andrew alleges that two doctors, hired as experts in this case, have both
agreed that the amount of pain medication he prescribed was not unsafe. The defendants
admit that Dr. Webster testified that the amounts of opioids prescribed to T.C. and L.H.
were not excessive, and that Dr. Ledet testified that the dosage of opioids prescribed for
L.H. was not excessive, but that Dr. Ledet testified that the length of time opioids were
prescribed for T.C. was improper and a safety concern, and Dr. Ledet identified
numerous other problems with Dr. Andrew’s plan for the care of these patients.
Dr. Andrew alleges, and the defendants admit for purposes of summary judgment, that
less than 50% of physicians use the PMP, but the defendants contend that Ms. Rathbun
testified that it would be “critical” to use the PMP for anyone who is prescribing narcotics
and treating a patient for pain management.
5.

The termination and aftermath

On December 15, 2016, Ms. Rathbun met with Dr. Andrew and informed him
that she was terminating his employment because of the amount of medication T.C. had
received and “another issue,” although Dr. Andrew testified that Ms. Rathbun did not
elaborate what the “other issue” was. The defendants admit this statement, but they deny
that it is material, because the primary reason was patient safety. At the meeting,
Ms. Rathbun gave Dr. Andrew his termination letter. The pertinent portions of the letter
stated the following:
This letter is to inform you that your employment contract
with the Hospital is being terminated pursuant to paragraph
9(d). This termination is effective immediately. You will no
longer treat hospital and clinic patients. Pursuant to your
contract, paragraph 9(h), your medical staff membership at
the Hospital also terminates at this time. This will further
12

result in the termination of the contract with Iowa Falls
between the hospital entities relating to your services.
***
This action is being taken due to significant concerns about
prescribing practices and patient care issues. Please be
advised that these issues have also been reported to the Iowa
Board of Medicine and Medical Staff for purposes of
evaluation and Peer Review.
Defendants’ Appendix at 78. Ms. Rathbun testified that Dr. Andrew was terminated
pursuant to Section 9(d)(i) of his employment agreement. Dr. Andrew denies that the
reasons stated for his termination had merit. He alleges, and the defendants admit for
purposes of summary judgment, that he was told that his termination was
“administrative,” and that the cause was the alleged “excessive amount of medication
that [T.C.] had received.” Dr. Andrew also denies that Ms. Rathbun had the authority
to terminate his employment for “professional,” as opposed to “administrative,” reasons
without utilizing the peer review process in the staff bylaws.
At the time of Dr. Andrew’s termination, he was 62 years old, and there were 8
months left in the initial term of his Agreement. Prior to his termination, nobody at
VDMC had told Dr. Andrew that he was not providing adequate patient care or that the
safety of his patients was jeopardized by his conduct. Also, prior to December of 2016,
Dr. Ehn had never seen evidence of improper prescribing practices by Dr. Andrew.
Following Dr. Andrew’s termination, VDMC hired several physicians from a
local practice who were the same age as or older than Dr. Andrew. Dr. Andrew was
hired as a full-time surgeon by Iowa Specialty Hospital on January 23, 2017, one month
after his termination from VDMC, and continued to work there until August 17, 2017,
when his employment was terminated for reasons unrelated to his employment at VDMC.
Dr. Andrew has been unable to work since August 17, 2017, and he alleges that, although
13

he has sought employment with multiple locum tenens companies, he has been unable to
secure employment in light of the “for cause” designation for his termination from
VDMC. The defendants contend that Dr. Andrew cites only his own testimony about
what unidentified representatives of unidentified companies told him were the reasons he
was not hired, which is inadmissible hearsay.
B.

Procedural Background

Dr. Andrew filed this lawsuit on May 12, 2017, in the Iowa District Court for
Hamilton County. He asserted claims for breach of contract, breach of fiduciary duty,
age discrimination in violation of Iowa and federal law, all against VDMC, and
defamation against both VDMC and Ms. Rathbun. On June 5, 2017, the defendants
removed this action to this federal court, pursuant to 28 U.S.C. §§ 1331 and 1441, based
on the federal age discrimination claim, and they asserted that the court has supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The defendants then
filed a joint Answer And Affirmative Defenses on July 7, 2017. In a Trial Management
Order, filed August 28, 2017, this case was set for a jury trial beginning on February 11,
2019.
On October 5, 2017, Dr. Andrew filed his First Amended Complaint, which
remains his controlling pleading. In it, Dr. Andrew asserts five claims. In Count I, he
alleges breach of contract by VDMC, based on allegations that his employment
Agreement was terminated without cause and without notice and by failing to assure that
the established peer review process was utilized before terminating him. In Count II,
he alleges breach of fiduciary duty by VDMC, based on VDMC’s “bypassing” of the
well-established method of performing peer review when terminating him. In Count III,
he alleges age discrimination by VDMC, in violation of both the federal Age
Discrimination In Employment Act (ADEA) and the Iowa Civil Rights Act (ICRA), by
14

terminating him, at least in part, because of his age, after hiring two new, younger, and
less-experienced surgeons, and directing that all surgery consults and referrals be sent to
the new surgeons. In Count IV, he alleges defamation by Ms. Rathbun and VDMC,
based on allegations that, on or about December 15, 2016, Ms. Rathbun falsely spoke of
and concerning him by stating to the Iowa Board of Medicine and the National
Practitioner Data Base that he had provided substandard or inadequate care in prescribing,
dispensing, or administering medication. Finally, in Count V, he alleges libel per se by
Ms. Rathbun and VDMC, based on the same allegations that are the basis of Count IV.
The defendants filed their joint Answer And Affirmative Defenses To Plaintiff’s First
Amended Complaint on October 10, 2017. Although some discovery deadlines were
changed after Dr. Andrew filed his First Amended Complaint, the trial date remained
unchanged.
On May 9, 2018, the defendants filed the Motion For Partial Summary Judgment
now before me. In that Motion, they seek summary judgment on Counts II through V,
in their entirety, and partial summary judgment on Count I to the extent of limiting
damages to the 90-day notice period for a “without cause” termination, if a jury
determines that Dr. Andrew was terminated in breach of his Agreement, and barring
recovery based on the absence of peer review. On May 30, 2018, Dr. Andrew filed his
Resistance to summary judgment, in whole or in part, on any of his claims. On June 14,
2018, the defendants filed their Reply.
No party requested oral arguments on the defendants’ Motion For Partial Summary
Judgment in the manner required by local rules. Moreover, I have found the parties’
written submissions to be adequate for the disposition of this motion. Therefore, the
defendants’ Motion For Partial Summary Judgment is deemed fully submitted on the
parties’ written submissions.

15

II.
A.

LEGAL ANALYSIS

Summary Judgment Standards

Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he movant
‘bears the initial responsibility of informing the district court of the basis for its motion,’
and must identify ‘those portions of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burdens, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
DeStefano, ––– U.S. ––––, 129 S. Ct. 2658, 2677, 174 L.
Ed. 2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
16

150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘Where the record
taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial.’”
Ricci, 129 S. Ct. at 2677, quoting Matsushita, 475 U.S. at
587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).
With these standards in mind, I turn to consideration of the defendants’ Motion
For Partial Summary Judgment.
B.

The Age Discrimination Claims

Unlike the parties, I will consider, first, the defendants’ request for summary
judgment on Dr. Andrew’s age discrimination claims pursuant to the ADEA and the
ICRA in Count III, because this court’s subject matter jurisdiction is premised on the
ADEA claim.

Again, the age discrimination claims are based on allegations that

Dr. Andrew was terminated, at least in part, because of his age, after VDMC hired two
new, younger, and less-experienced surgeons, and directed that all surgery consults and
referrals be sent to the new surgeons.

17

1.

Arguments of the parties

In support of summary judgment in their favor on Dr. Andrew’s age
discrimination claims, the defendants argue that, although the causation standards differ
between federal and state law age discrimination claims, the result is the same under
either standard. They point out that Dr. Andrew concedes that there is no direct evidence
of age discrimination, so that his age discrimination claims are analyzed under the
McDonnell Douglas burden-shifting framework.2 For purposes of their motion, the
defendants do not dispute that Dr. Andrew can make out a prima facie case of age
discrimination, but they argue that he cannot present sufficient evidence to generate a fact
question as to the illegitimacy of VDMC’s nondiscriminatory reasons for terminating the
Agreement, let alone evidence to suggest that age discrimination was the true reason for
his termination.
More specifically, the defendants argue that, after investigation and consultation
with Dr. Ehn and Dr. Altman, Ms. Rathbun elected to terminate Dr. Andrew’s
Agreement immediately, primarily owing to her significant concerns about patient care
and safety identified during the investigation.

They argue that Dr. Andrew cannot

demonstrate that this reason was a pretext for age discrimination, because he admits the
facts underlying VDMC’s decision. For example, they point out that he admits his longterm prescription of narcotics, such as his treatment of T.C. for four years, was unusual
in his general surgery practice, and that it was not common practice for him to assume
primary care for a patient’s pain management; he admits that he failed to consult the
PMP, use a pain management contract, or drug testing to monitor T.C.’s or L.H.’s use
of narcotics; he admits that he did not send T.C. to a pain management specialist, despite

2

See McDonnell Douglas Corp. v. Green, 411 U.S.792 (1973).
18

having such a resource available; and he admits that his productivity was well below
industry standards and a constant source of concern to Ms. Rathbun. The defendants
argue that Dr. Andrew’s disagreement with and “second-guessing” of VDMC’s view of
the seriousness of these issues does not establish age discrimination, because VDMC and
Ms. Rathbun had a good faith belief that Dr. Andrew had committed misconduct
sufficient to warrant his immediate termination, and Dr. Andrew offers nothing that
demonstrates a lack of good faith.
The defendants also contend that Dr. Andrew cannot point to any evidence
sufficient to raise a jury question that an age discriminatory animus played any part in
VDMC’s decision. They dispute the sufficiency of Dr. Andrew’s reliance on either the
adjustments to his compensation or the hiring of two younger physicians in the months
before his termination to demonstrate the required animus. As to compensation, the
defendants contend that Dr. Andrew has identified merely a correlation between his high
compensation and his age, where his productivity was below industry standards, which
justified the reduction in compensation, and he admitted that he did not think those
changes were unjustified or age-related. Next, the defendants argue that hiring a younger
employee to perform a plaintiff’s job duties is not, in and of itself, sufficient to raise an
inference of age discrimination, and that Dr. Bedi and Dr. Grimm were both hired for
legitimate business reasons. Furthermore, the defendants point out that Ms. Rathbun
hired several physicians from a local practice who were the same age or older than
Dr. Andrew following the termination of his Agreement.
In response, Dr. Andrew argues that there is no sufficient support for
Ms. Rathbun’s decision to terminate him. He argues that Ms. Rathbun was not a doctor
and was not qualified to determine whether the amounts of medications prescribed to
T.C. were excessive. Also, he contends that, while Ms. Rathbun claimed to have relied
on Dr. Ehn’s report, Dr. Ehn did not offer an opinion prior to his termination on whether
19

the amounts of medications prescribed for T.C. were excessive. On the contrary, he
contends, two doctors, hired as experts in this case, agreed that the amount prescribed
was not unsafe. Moreover, he argues that Ms. Rathbun engaged in a year-long campaign
to drive him out of VDMC, after telling him that he was overpaid, amending his
Agreement twice within the three-year period to reduce his compensation, then leasing
his services to Hanson Family Hospital and hiring other doctors for VDMC, which
prevented him from improving his productivity.

Dr. Andrew also asserts that his

“admirable” employment history can be used by a jury to infer a discriminatory motive.
In short, he contends that a jury could reasonably infer that the proffered reason for his
termination was false and, therefore, was simply a pretext for an age discriminatory
motive.
In reply, the defendants reiterate that Dr. Andrew is simply arguing that the court
should review the wisdom or fairness of VDMC’s decision to terminate him. They point
out that Dr. Andrew second-guesses Ms. Rathbun’s qualifications to terminate him and
disagrees with VDMC’s opinion on the basis of expert opinions that he reads to say he
did nothing dangerous in his prescribing of narcotics, but he cannot dispute that
Ms. Rathbun, Dr. Ehn, and Dr. Altman had sincere concerns about his practice in
prescribing narcotics. The defendants also contend that Dr. Andrew cannot generate
genuine issues of material fact on the basis of Ms. Rathbun’s efforts to improve his
productivity and the hospital’s revenue by leasing his services to Hanson Family Hospital,
where he admits productivity and revenue were within her purview. As to Dr. Andrew’s
allegedly “admirable” employment history, the defendants point out that they were
entitled to rely on recent performance problems more heavily than on past good
performance.

20

2.

Analysis
a.

Applicable standards

As the Eighth Circuit Court of Appeals explained, in a decision involving claims
of age discrimination in violation of both the ADEA and the ICRA,
Both statutes provide a right of action for an employee who is
terminated “because of” his age. 29 U.S.C. § 623(a)(1); Iowa
Code § 216.6(1)(a). The statutes require slightly different
showings of causation, compare Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 178, 129 S.Ct. 2343, 174 L.Ed.2d 119
(2009) (ADEA plaintiff must show that age discrimination
was a “but[ ] for” cause of his termination) with DeBoom v.
Raining Rose, Inc., 772 N.W.2d 1, 13 (Iowa 2009) (ICRA
plaintiff need only show that age discrimination was a
“motivating factor”).
Ridout v. JBS USA, L.L.C., 716 F.3d 1079, 1083 (8th Cir. 2013). Although the causation
standards differ, “under either the ADEA or ICRA, [courts] apply the familiar
McDonnell Douglas test.” Id. Thus, under either statute, at the final stage of the burdenshifting analysis, which is at issue here, if the employer meets its burden to articulate a
legitimate nondiscriminatory reason for its actions, “the presumption of discrimination
dissolves and the burden returns to the plaintiff to demonstrate that the proffered reason
is a mere pretext for age discrimination.” Id.
When deciding whether an age discriminatory animus was the real reason for an
employer’s

decision,

“[c]ourts

‘may

not

second-guess

employers’

business

decisions,’ . . . and ‘employers are free to make employment decisions so long as they
do not discriminate unlawfully.’” Robinson v. American Red Cross, 753 F.3d 749, 754
(8th Cir. 2014) (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 471 (8th Cir. 2011)).
Thus, “[t]o defeat summary judgment, [the employee] ‘must present affirmative
evidence, not simply contend that a jury might disbelieve [the employer’s] evidence.’”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 886 (8th Cir. 2016) (quoting
21

Walton v. McDonnell Douglas Corp., 167 F.3d 423, 428 (8th Cir. 1999)); Wagner v.
Gallup, Inc., 788 F.3d 877, 888 (8th Cir. 2015) (“‘A party’s unsupported self-serving
allegation that her employer’s decision was based on [age discrimination] does not
establish a genuine issue of material fact.’” (quoting Gibson v. American Greetings
Corp., 670 F.3d 844, 857 (8th Cir. 2012)). To meet his or her evidentiary burden, “‘[a]
plaintiff may show that the employer’s explanation is unworthy of credence because it
has no basis in fact [or] may show pretext by persuading the court that a prohibited reason
more likely motivated the employer.’” Aulick v. Skybridge Americas, Inc., 860 F.3d
613, 621 (8th Cir. 2017) (quoting Torgerson, 643 F.3d at 1047).
As the Eighth Circuit Court of Appeals has explained, where, as here, an employee
was terminated for specific misconduct, “‘[t]he critical inquiry . . . is not whether the
employee actually engaged in the conduct for which he was terminated, but whether the
employer in good faith believed that the employee was guilty of the conduct justifying
discharge.’” Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 436 (8th Cir. 2016)
(quoting McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 861–62 (8th Cir.
2009)). Where the employer has corroboration for a claim of misconduct, and apparently
believes in good faith that the employee engaged in the misconduct, “there is no genuine
factual dispute as to ‘whether the employer acted based on an intent to discriminate rather
than on a good-faith belief that the employee committed misconduct justifying
termination.’” Id. (quoting McCullough, 559 F.3d at 862).
Evidence that a younger person replaced the plaintiff or was treated more leniently
for similar misconduct, while sufficient at the prima facie stage, is insufficient to establish
pretext, because it has insufficient probative value to persuade a reasonable jury that the
plaintiff was discriminated against because of his or her age and not treated adversely for
a legitimate reason. Onyiah v. St. Cloud State Univ., 684 F.3d 711, 719-20 (8th Cir.
2012) (citing Carragher v. Target Corp., 503 F.3d 714, 719 (8th Cir. 2007)); Tusing v.
22

Des Moines Indep. Comm. Sch. Dist., 639 F.3d 507, 517 (8th Cir. 2011) (also sighting
Carragher, 503 F.3d at 719, for this principle).

Similarly, as a general matter,

“‘employment decisions motivated by factors other than age (such as retirement
eligibility, salary, or seniority), even when such factors correlate with age, do not
constitute age discrimination,’” but “this is true only if these factors, although usually
correlated, are wholly independent from age.” Hilde v. City of Eveleth, 777 F.3d 998,
1006 (8th Cir. 2015) (quoting Cooney v. Union Pac. R.R. Co., 258 F.3d 731, 735 (8th
Cir. 2001)). On the other hand, “[p]retext can also be demonstrated by showing that . . .
the employer deviated from policies.” Sieden v. Chipotle Mexican Grill, Inc., 846 F.3d
1013, 1017 (8th Cir. 2017) (citing Stallings v. Hussmann Corp., 447 F.3d 1041, 1052
(8th Cir. 2006)). There must, however, be evidence to support an allegation of failure
to follow ordinary disciplinary procedures, not merely conclusory arguments, to generate
a genuine issue of material fact on pretext. Id. at 1019.
Finally, for present purposes, as to pretext, evidence “‘may show that [the
plaintiff] had performed competently in the past, but [such evidence] do[es] not render
[the plaintiff’s] more recent negative evaluations inherently untrustworthy.’” Doucette
v. Morrison Cty., Minn., 763 F.3d 978, 983 (8th Cir. 2014) (quoting Rose–Maston v.
NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998)). Such evidence of past good
performance “does not create an issue of material fact regarding the [employer’s] intent
in firing [the plaintiff],” because “‘employers may choose to rely on recent performance
more heavily than past performance.’” Id. (quoting Twiggs v. Selig, 679 F.3d 990, 994
(8th Cir. 2012)).
b.

Application of the standards

This is not a case in which a rational fact finder could find for Dr. Andrew on the
question of whether the defendants’ proffered reason for his termination is a mere pretext
for age discrimination. Torgerson, 643 F.3d at 1042-43 (stating the “rational fact finder”
23

standard for summary judgment standard); Ridout, 716 F.3d at 1083 (stating the “mere
pretext” standard as the ultimate burden to prove age discrimination).

First,

Dr. Andrew’s evidence is insufficient to generate a fact question on whether the
defendants’ explanation for their decision is unworthy of credence on the ground that it
has no basis in fact. Aulick, 860 F.3d at 621 (stating this as the first way to establish
discrimination). The experts in this case do not agree, as Dr. Andrew contends they do,
that the amount of narcotics that he prescribed for T.C. was not unsafe. Dr. Ledet did
agree that the dosage of opioid prescribed by Dr. Andrew would not generally be
considered excessive, Plaintiff’s Appendix at 29 (Deposition of Dr. Ledet, 38:1-6), and
that prescribing of the specific dosages of opioid to T.C. for his chronic condition was
not uniquely inappropriate, meaning that daily dosages were not inappropriate,
Defendants’ Supplemental Appendix at 136 (Deposition of Dr. Ledet, 51:4-25).
Dr. Ledet was critical, however, of the long period of time that T.C. was prescribed
opioids, Dr. Andrew’s failure to develop a pain management plan for L.H. and T.C.,
and his failure to pursue other potential causes of T.C.’s pain, failure to use other nonopioid therapies, and failure to monitor T.C.’s use of pain medications through the PMP,
a pain management agreement, or urine testing. Id. at (Deposition of Dr. Ledet, 52:154:19).
Moreover, even if there is a fact question about whether Dr. Andrew correctly
treated L.H. and T.C. based on a disagreement between the experts, Dr. Ledet and
Dr. Webster, that does not establish that the defendants’ reasons for terminating
Dr. Andrew are unworthy of credence. That is so, because the question in a case, such
as this, involving termination for misconduct, is “whether the employer in good faith
believed that the employee was guilty of the conduct justifying the discharge.” Blackwell,
822 F.3d at 436 (internal quotation marks and citations omitted). Dr. Ledet’s opinions
are post hoc evidence that the defendants had a reasonable, i.e., good faith, basis for
24

their determination that Dr. Andrew’s prescribing practices and patient care posed a
threat to patient safety. Still more importantly, prior to Dr. Andrew’s termination, the
defendants had conducted an investigation that corroborated concerns about his
prescribing practices and patient care.3 Id. Ms. Ridge’s initial investigation produced
evidence of prescribing and patient care practices justifying concern, but Ms. Rathbun
then required further investigation, by Dr. Ehn, including the meeting involving
Dr. Andrew, Dr. Ehn, Dr. Altman, and Ms. Ridge and Dr. Ehn’s subsequent report.
Although Dr. Andrew contends that Ms. Rathbun was not qualified to make a
determination on a patient care issue, he admitted that her duties as CEO included
managing VDMC, hiring physicians, promoting patient safety and quality of care,
negotiating employment contracts, and terminating VDMC employees, and that she
frequently made decisions that involved medical issues.
Although “[p]retext can also be demonstrated by showing that . . . the employer
deviated from policies,” Sieden, 846 F.3d at 1017, Dr. Andrew’s contention that he was
terminated without using the hospital staff peer review process, which was established by
the hospital’s bylaws, does not generate a genuine issue of material fact on pretext in this
case. This is so because Dr. Andrew has only a conclusory argument that such a peer
review process was applicable to him, which is not supported by the evidence. See
id. (holding conclusory allegations of failure to follow established policy are not enough
to generate a jury question). As the defendants point out, the last sentence of § 9(h) of
Dr. Andrew’s Agreement states,
Termination of Physician’s employment shall be governed
solely by this Agreement and shall not be subject to the
3

Although Dr. Andrew contends that the evidence that a pharmacist drew the
hospital’s attention to Dr. Andrew’s prescriptions is hearsay, I disagree. That evidence
is not offered for its truth, but to show how the defendants received notice of a possible
problem with Dr. Andrew’s prescriptions. See FED. R. EVID. 801(c).
25

corrective action, termination or grievance procedures
applicable to other employees of Hospital or to the hearing
and appeal procedures set forth in the medical staff bylaws.
Defendants’ Appendix at 101 (Agreement, § 9(h), last sentence).

The defendants

reasonably read this provision as exempting Dr. Andrew’s termination from the peer
review process in the hospital bylaws, whether or not their interpretation is correct as a
matter of law, so that they were following what they believed was an appropriate
procedure, so their conduct was not pretextual. Whether or not Dr. Andrew is correct
about his belief that the peer review process was required is a matter to be decided in his
breach of contract and breach of fiduciary duty claims.
Dr. Andrew’s other attempts to generate genuine issues of material fact on pretext
fare no better.

Dr. Andrew claims that the defendants hired two younger, less

experienced surgeons to take over some of his duties prior to his termination, but that
evidence has insufficient probative value to persuade a reasonable jury that Dr. Andrew
was discriminated against because of his age, rather than terminated for the misconduct
cited by the defendants. See Onyiah, 684 F.3d at 719-20. This is particularly true, here,
where the defendants have offered legitimate reasons for hiring additional surgeons that
fall well within their business judgment—the need for surgeons to cover on call and
OB/GYN needs while Dr. Andrew was providing services to Hanson Family Hospital
and the need to prepare for continuity of services after Dr. Andrew’s eventual
retirement—and Dr. Andrew has pointed to nothing to rebut those stated reasons. See
Robinson, 753 F.3d at 754 (explaining that courts may not second-guess an employer’s
business decisions so long as they are not discriminatory). Furthermore, Dr. Andrew’s
allegation that one of those surgeons, Dr. Grimm, was to be given all surgical referrals
is not supported by the email from Ms. Rathbun on which Dr. Andrew relies. Rather,
that email actually states, “[R]eferrals were supposed to go to [Dr.] Grimm if she is here
as she will be primary at this hospital,” and it continues, “Of course, if [Dr. Andrew]
26

has a patient who requests him that is another thing altogether.” Plaintiff’s Sealed
Appendix at 40 (emphasis added). Thus, there is no inference that Ms. Rathbun was
attempting to direct all referrals to Dr. Grimm instead of Dr. Andrew. Also, as the
defendants point out, Ms. Rathbun hired several physicians from a local practice who
were the same age or older than Dr. Andrew following the termination of his Agreement,
which defeats any inference of age discrimination. Cf. Onyiah, 684 F.3d at 719-20
(hiring younger replacements is not enough to generate a genuine issue of material fact
on pretext).
Dr. Andrew also points to Ms. Rathbun’s alleged hostility to his low productivity
and high pay as demonstrating that he was terminated, at least in part, because of his age.
As a general matter, however, employment decisions motivated by a factor, such as
salary, which often correlate with age, do not constitute age discrimination, if that factor
is wholly independent of age. See Hilde, 777 F.3d at 1006. Dr. Andrew has pointed to
nothing reasonably suggesting that Ms. Rathbun was concerned about, or hostile toward,
his age, rather than toward the wholly independent discrepancy between his low
productivity and his high pay, for which the record does provide ample evidence.
Finally, Dr. Andrew points to his “admirable” employment history as a basis for
inferring a discriminatory motive for his termination for misconduct. No rational trier
of fact could so conclude, however, because such evidence does not render Dr. Andrew’s
more recent negative evaluation of his prescribing and patient care practices inherently
untrustworthy or pretextual, nor does it create a genuine issue of material fact, because
“employers may choose to rely on recent performance more heavily than past
performance.”

Doucette, 763 F.3d at 983 (internal quotation marks and citations

omitted). Again, the defendants’ reliance on concerns about Dr. Andrew’s prescribing
and patient care practices were in good faith and corroborated. See Blackwell, 822 F.3d
at 436.
27

In short, Dr. Andrew has simply contended that a jury might disbelieve the
defendants’ evidence of the reasons for their decision to terminate his employment, which
is not enough to defeat summary judgment. See Haggenmiller, 837 F.3d at 886. The
part of the defendants’ Motion For Partial Summary Judgment seeking summary
judgment on Dr. Andrew’s age discrimination claims under the ADEA and the ICRA is
granted.
C.

Retention Of Jurisdiction

Although neither party raised the issue, the dismissal of the only federal claim
upon which this court’s original jurisdiction (and removal) depends, raises the question
of whether I should retain supplemental jurisdiction over the remaining state law claims.
If I retain supplemental jurisdiction, I should turn to consideration of the defendants’
Motion For Partial Summary Judgment as it relates to those claims. On the other hand,
if I decline to exercise supplemental jurisdiction, and remand this action to state court, I
should do so before reaching the question of whether summary judgment is appropriate
on those state law claims, as a matter of comity.
As the Eighth Circuit Court of Appeals recently explained,
Federal courts “possess only that power authorized by
Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994). “[I]t is well established—in certain classes of cases—
that, once a court has original jurisdiction over some claims
in the action, it may exercise supplemental jurisdiction over
additional claims that are part of the same case or
controversy.” Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).
But “Congress unambiguously gave district courts
discretion in 28 U.S.C. § 1367(c) to dismiss supplemental
state law claims when all federal claims have been
28

dismissed.” Gibson v. Weber, 431 F.3d 339, 342 (8th Cir.
2005). By § 1367(c):
The district courts may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) if—
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
In re Pre-Filled Propane Tank Antitrust Litig., 893 F.3d 1047, 1059–60 (8th Cir. 2018).
Thus, pursuant to § 1367(c)(3), “the District Court may well find that [a] case,
now raising only state-law issues, should . . . be remanded to the state courts for
determination.” Lapides v. Board of Regents of Univ. Sys. of Georgia, 535 U.S. 613,
624 (2002). Although whether or not to dismiss remaining state law claims pursuant to
§ 1367(c)(3) is a matter in the district court’s discretion, see In re Pre-Filled Propane
Tank Antitrust Litig., 893 F.3d at 1060, and is reviewed for abuse of that discretion, see
Carlsbad Tech., Inc. v. HIF Bio., Inc., 556 U.S. 635, 640 (2009), where “resolution of
the remaining claims depends solely on a determination of state law, the [district court]
should decline to exercise jurisdiction,” Glorvigen v. Cirrus Design Corp., 581 F.3d
737, 749 (8th Cir. 2009). Indeed, the district court may remand after granting summary
judgment on the only federal claim or claims, even if the state law issues had been briefed
and discovery had been completed. D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist.
No. 60, 647 F.3d 754, 767 (8th Cir. 2011) (stating that the fact that the issues had been
29

briefed and discovery had been completed “does not affect our conclusion” that the
district court did not abuse its discretion in remanding remaining claims to state court
after granting summary judgment on the only federal claim).
To put it another way, “‘[w]hen a district court dismisses federal claims over
which it has original jurisdiction, the balance of interests usually will point toward
declining to exercise jurisdiction over the remaining state law claims.” Streambend
Properties II, L.L.C. v. Ivy Tower Minneapolis, L.L.C., 781 F.3d 1003, 1016–17 (8th
Cir. 2015) (quoting In re Canadian Import Antitrust Litig., 470 F.3d 785, 792 (8th Cir.
2006)). The Supreme Court identified the interests in question as follows:
Under [Mine Workers v.] Gibbs, [383 U.S. 715 (1966)], a
federal court should consider and weigh in each case, and at
every stage of the litigation, the values of judicial economy,
convenience, fairness, and comity in order to decide whether
to exercise jurisdiction over a case brought in that court
involving pendent state-law claims.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Here, I have dismissed the only claim on which federal jurisdiction depended, and
this case now raises only state law issues, so that remand to state court is certainly within
my discretion. See 28 U.S.C. § 1367(c)(3); Lapides, 535 U.S. at 624; In re Pre-Filled
Propane Tank Antitrust Litig., 893 F.3d at 1060. More specifically, still, “resolution of
the remaining claims depends solely on a determination of state law,” so that I “should
decline to exercise jurisdiction.” Glorvigen, 581 F.3d at 749. This is so, even though
the state law issues have been briefed and discovery has been completed. D.J.M., 647
F.3d at 767.
Furthermore, this case presents a circumstance in which the balance of interests
not only usually point toward declining to exercise jurisdiction over the remaining state
law claims, see Streambend Properties II, L.L.C., 781 F.3d at 1016-17, but one in which
30

they plainly do. Judicial economy is the only Gibbs factor that is likely a wash. See
Carnegie-Mellon Univ., 484 U.S. at 350 (first Gibbs factor). Convenience of the parties,
id. (second Gibbs factor), will be best served by remand, where the Iowa District Court
for Hamilton County sits in Webster City, which is where many or most of the parties
and witnesses are likely to reside, and Webster City is closer than Sioux City, where this
court sits, to the offices of any of the attorneys, which are in Des Moines or Cedar
Rapids. Fairness, the next Gibbs factor, see id., is also served, because state law claims
will be heard, in the first instance, in state court and, if necessary, appealed to the Iowa
Supreme Court, which can answer state law questions authoritatively, cf. Arizonans for
Official English v. Arizona, 520 U.S. 43, 76 (1977) (explaining that certification of state
law questions to the state Supreme Court “increase[es] the assurance of gaining an
authoritative response”), and there is no reason to believe that a state forum will be less
fair to one side or the other when all parties are citizens of this state. Finally, as a matter
of comity, the last Gibbs factor, see Carnegie-Mellon Univ., 484 U.S. at 350, it is
appropriate for this court to cede to the state courts questions of state law.
Therefore, I will not reach the remaining portions of the defendants’ Motion For
Partial Summary Judgment, but will remand this action to state court for determination
of the remaining state law claims.
III.

CONCLUSION

Upon the foregoing,
1.

The defendants’ May 9, 2018, Motion For Partial Summary Judgment

(docket no. 32) is granted in part and denied without prejudice in part, as follows:
a.

The part of the defendants’ Motion seeking summary judgment on

the plaintiff’s age discrimination claims pursuant to the ADEA and the ICRA in

31

Count III of the First Amended Complaint is granted, and summary judgment on
that claim shall enter accordingly; but
b.

The remaining parts of the defendants’ Motion, seeking partial

summary judgment on Count I and summary judgment on the entirety of Counts
II, IV, and V, is denied without prejudice.
2.

The remaining claims, in Counts I, II, IV, and V, are remanded to the

Iowa District Court for Hamilton County.
IT IS SO ORDERED.
DATED this 30th day of August, 2018.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

32