Doe v. Atchison Hospital Association

Filing 132

MEMORANDUM AND ORDER denying 121 Motion for Partial Summary Judgment; granting 123 Motion for Summary Judgment. This case is dismissed in its entirety. Signed by Chief District Judge Julie A. Robinson on 5/6/2019. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DOUGLAS GORACKE,
Plaintiff,
v.

Case No. 2:17-CV-2664-JAR

ATCHISON HOSPITAL ASSOCIATION,
Defendant.

MEMORANDUM AND ORDER
Plaintiff, Dr. Douglas Goracke, brings this action against Defendant Atchison Hospital
Association (“the Hospital”), alleging improper medical inquires, improper disclosure of
confidential information, and disability discrimination under the Rehabilitation Act,1 and
violations of both the Fair Credit Reporting Act (“FCRA”)2 and the Kansas Fair Credit Reporting
Act (“KFCRA”).3 This matter is before the Court on Plaintiff’s Motion for Partial Summary
Judgment (Doc. 121) and Defendant’s Motion for Summary Judgment (Doc. 123). For the
reasons stated in this opinion, the Court denies Plaintiff’s motion and grants Defendant’s
Motion for Summary Judgment in its entirety.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates “that there is no

genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”4
In applying this standard, the Court views the evidence and all reasonable inferences therefrom

1

29 U.S.C. § 794(d).

2

15 U.S.C. § 1681 et seq.

3

K.S.A. § 50-702 et seq.

4

Fed. R. Civ. P. 56(a).

in the light most favorable to the nonmoving party.5 “There is no genuine [dispute] of material
fact unless the evidence, construed in the light most favorable to the non-moving party, is such
that a reasonable jury could return a verdict for the non-moving party.”6 A fact is “material” if,
under the applicable substantive law, it is “essential to the proper disposition of the claim.”7 A
dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.”8
The moving party initially must show the absence of a genuine dispute of material fact
and entitlement to judgment as a matter of law.9 In attempting to meet this standard, a movant
who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant’s
claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant
on an essential element of the nonmovant’s claim.10
Once the movant has met the initial burden of showing the absence of a genuine dispute
of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that
there is a genuine issue for trial.”11 The nonmoving party may not simply rest upon its pleadings
to satisfy its burden.12 Rather, the nonmoving party must “set forth specific facts that would be

5

City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

6

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 255 (1986)).
7

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
8

Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248).

9

Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002), cert. denied 537 U.S. 816 (2002)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
10

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).
11

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
12

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

2

admissible in evidence in the event of trial from which a rational trier of fact could find for the
nonmovant.”13 In setting forward these specific facts, the nonmovant must identify the facts “by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”14 To
successfully oppose summary judgment, the nonmovant must bring forward more than a mere
scintilla of evidence in support of his position.15 A nonmovant may not create a genuine issue of
material fact with unsupported, conclusory allegations.”16
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy, and inexpensive determination of
every action.”17 “Where, as here, the parties file cross-motions for summary judgment, [the
Court is] entitled to assume that no evidence needs to be considered other than that filed by the
parties, but summary judgment is nevertheless inappropriate if disputes remain as to material
facts.”18 The Court considers cross-motions separately: the denial of one does not require the
grant of the other.19 “To the extent the cross-motions overlap, however, the Court may address
the legal arguments together.”20 The material facts are uncontroverted in this case, and the legal
issues asserted in both motions overlap. The Court therefore addresses those issues together.

13

Mitchell v. City of Moore, 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 670–71);
see Kannady, 590 F.3d at 1169.
14

Adler, 144 F.3d at 671.

15

Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993).

16

Tapia v. City of Albuquerque, 170 F. App’x 529, 533 (10th Cir. 2006).

17

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

18

James Barlow Family Ltd. P’ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).
19

Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979).

20

Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010) (quotations omitted).

3

II.

Uncontroverted Facts
The Hospital is located in Atchison, Kansas. Plaintiff is an anesthesiologist, licensed in

Kansas and Missouri, who worked as an independent contractor at the Hospital since 1992. Per
Plaintiff’s contract, he was the exclusive anesthesia provider at the Hospital. In 2011, the parties
signed the most recent provider contract, which included a clause allowing either party to
terminate it upon 120-days’ notice. The Hospital Board of Directors (“the Board”) delegated
authority to approve Plaintiff’s contract to the Hospital CEO, John Jacobson. Jacobson approved
Plaintiff’s 2011 contract without the Board’s approval.
When Plaintiff first applied for clinical privileges in 1992, he answered “No” to the
question, “Do you currently have a physical or mental health condition that affects or is likely to
affect your ability to perform professional or Medical Staff duties?”21 He disclosed that he had a
benign brain tumor surgically removed in 1991 and provided a treating physician’s certification
that he was unconditionally released to return to the practice of anesthesiology. Removal of the
tumor led to some memory loss, but this impairment does not and has never impaired Plaintiff’s
ability to perform his job. Plaintiff compensates for the impairment by taking thorough notes
and detailing information immediately when he is told. In each of his biennial applications for
clinical privileges, Plaintiff recertified that he had no limitations that affected his ability to
practice anesthesiology. Plaintiff was uniformly viewed as a very able anesthesiologist by the
Hospital, with no questions as to his competence or judgment.
On December 12, 2016, a former Hospital employee filed a complaint against the
Hospital with the Kansas Human Rights Commission (“KHRC”) alleging “unwanted verbal and

21

Doc. 123-3 at 7.

4

physical sexual harassment by [the Hospital’s] anesthesiologist.”22 On January 3, 2017, another
former Hospital employee filed a KHRC complaint against the Hospital alleging, “I was subject
to physical sexual harassment by [the Hospital’s] anesthesiologist,” and further that “female
patients were subjected to unwanted verbal and physical sexual harassment by this same
anesthesiologist.”23 In early 2017, the Hospital notified Plaintiff that it had received these
complaints against him, but allowed Plaintiff to continue working without restrictions or
limitations.
The Hospital retained Jill Waldman, a licensed attorney at Lathrop Gage, LLP, to
investigate Plaintiff’s alleged inappropriate behavior. From January 18, 2017 to February 20,
2017, Waldman interviewed eighteen different individuals connected with the Hospital,
including Plaintiff. Based on her interviews, legal education, and legal experience, Waldman
prepared a report of her investigation, dated February 24, 2017, which included an analysis of the
potential legal exposure faced by the Hospital due to Plaintiff’s alleged inappropriate behavior.
The report detailed multiple allegations of inappropriate sexual behavior by Plaintiff
toward staff and patients, including repeated sexual comments and innuendos, “touchy feely”
conduct such back massages and shoulder rubs, inappropriately uncovering, exposing, and
touching the breasts of female patients when applying “bair huggers,” inappropriately being
“handsy” with female patients, and “odd” behavior such as having patients undress completely
for epidurals, asking patients if their breasts are numb following an epidural, standing at the foot
of the bed in the delivery room, and staying in the delivery room after his work is done, even
when asked to leave.24 The report also detailed reports that Plaintiff “can be hostile, rude,

22

Docs. 123-4 at 8; 123-5 at 8.

23

Doc. 123-5 at 8.

24

Doc. 127-3 at 3–10.

5

sarcastic, and/or condescending,” and further that he “can be arrogant, demeaning, difficult,
confrontational, and/or snarky.”25 “Several reported that [Plaintiff] is a bully.”26 Plaintiff denies
these allegations and reports that “he is tough, is very demanding, has high standards, is a
perfectionist, and is strict.”27
The Board was informed of the KHRC complaints against Plaintiff at its January 2017
meeting. In late February 2017, the Board received a verbal summary of Waldman’s report. At
this point, the Board took charge of the matter involving Plaintiff and began to issue direction.28
The Board decided to terminate Plaintiff’s exclusive provider/medical director contract without
cause and provided the required 120-day notice of termination. Through a March 15, 2017 letter
signed by Jacobson, the Board offered to negotiate a new exclusive provider/medical director
contract with Plaintiff, provided that he undergo an outpatient professional assessment and
“agree to complete any and all conditions recommended in the assessment.”29 The letter also
required Plaintiff to “authorize the hospital to communicate with the facility regarding [his]
treatment.”30
Plaintiff underwent a multidisciplinary outpatient assessment at Professional Renewal
Center (“PRC”) in Lawrence, Kansas from May 4, 2017 to May 7, 2017. PRC is a Kansas
corporation organized to provide evaluation and treatment/remediation services to professionals.
PRC’s evaluation process comes from the Federation of State Medical Board guidelines for state

25

Id. at 10.

26

Id.

27

Id. at 11.

28

Doc. 123-6 at 25:2–9. Plaintiff admits this fact. Doc. 126 at 10.

29

Doc. 123-11 at 2.

30

Id.

6

medical boards to address sexual boundary issues in physicians.31 The evaluation is “based on a
biopsychosocial approach coupled with consideration of the American Board of Medical
Specialties/Accreditation Council of Graduate Medical Education core competency areas. The
assessment is intended to identify potential contributory factors to the identified areas of concern,
and how to address/remediate these areas of concern.”32
Plaintiff’s evaluation included psychological tests, interviews about Plaintiff’s addictions,
obsessions, and compulsions, a physical examination and laboratory testing, interviews regarding
Plaintiff’s medications, family history, surgical history, and past trauma, testing of Plaintiff’s
intellectual functioning, testing for bipolar disorder, anxiety, and other mental disorders, and an
interview regarding Plaintiff’s sexual behaviors. The Hospital did not place limits on the testing
to be conducted by PRC, nor was the hospital aware of the areas PRC would test during the
multidisciplinary assessment.
PRC prepared a report, summarizing the results of Plaintiff’s assessments. The report
mentioned that Plaintiff had a brain tumor removed in 1989, with a reoccurrence in his third
ventricle, and noted that Plaintiff “does demonstrate significant memory difficulties.”33 Under
the “Fitness to Practice and Recommendations,” PRC discussed Plaintiff’s inconsistent
monitoring of his own statements and behaviors, failure to pick up on feedback from others, and
poor decisions related to comments or behaviors that others view as inappropriate or offensive.

31

Doc. 127-12 ¶ 26; see Addressing Sexual Boundaries: Guidelines for State Medical Boards, Federal of
State Medical Boards (May 2006), https://www.fsmb.org/siteassets/advocacy/policies/grpol_sexual-boundaries.pdf.
32
Doc. 127-12 ¶ 26. Defendant asserts that this statement requires expert testimony and the affiant has not
been designated an expert. To the extent the affidavit contains expert opinion testimony, the Court disregards those
portions. Fed. R. Evid. 701. However, to the extent the affiant presents factual evidence based on her personal
knowledge, the Court finds those statements are admissible.
33

Doc. 123-15 at 5.

7

The report included a disclaimer which read: “This information has been disclosed to you
from records protected by Federal Confidentiality Rules (42 CRF Part 2) and is being released on
the basis that it not be re-disclosed to anyone, including the patient.”34 Plaintiff signed two
“Authorization to Exchange Information” forms with PRC, one authorizing the exchange of
information with Andy Ramirez, the Hospital Attorney,35 and the other with Jacobson, CEO at
Atchison Hospital.36 Prior to the report’s disclosure, Plaintiff spoke to Jacobson about the
discharge summary and asked Jacobson not to share the report with anyone because he did not
want the information in the report to get out in the community or to his children. In June 2017,
the Board reviewed the PRC report via a secure portal through the website of the Hospital’s
outside law firm, Lathrop Gage.
The Board communicated a new exclusive provider contract offer to Plaintiff through a
June 2, 2017 letter from Jacobson. The June letter required that Plaintiff (1) comply with PRC’s
recommendations, (2) cooperate with an internal monitoring program administered by members
of the Hospital’s medical staff, (3) “participate in a professional’s program” to address the issues
that led to the referral at PRC, and (4) “seek and share with PRC and the Board the results of a
consultation with a neurologist.” 37 The letter also stated that the evaluation by PRC would be
ongoing until the Board determined that the issues that led to the evaluation had been resolved.38
The Board considered Plaintiff to be a competent physician and was prepared to offer him a new
contract, however, Plaintiff did not sign the new contract. Per the terms of the initial termination

34

Doc. 123-5. 42 CRF Part 2 protects the confidentiality of Substance Use Disorder Patient Records.

35

Doc. 123-22.

36

Doc. 123-23.

37

Doc. 123-16.

38

Id.

8

letter, Plaintiff’s contract with the Hospital ended on or about July 13, 2017. Plaintiff continued
to practice medicine at the Hospital until August 14, 2017 because Jacobson granted an
extension.
As a member of the Hospital medical staff, the Bylaws generally applied to Plaintiff.
Under the bylaws, a medical staff member is entitled to a fair hearing if a “corrective action”
resulting in “reduction, suspension, or revocation of clinical privileges or suspension or
revocation of Medical Staff membership” is taken against them.39 Corrective action may include
(1) a letter of warning; (2) a letter of admonition or reprimand; (3) imposition of probation; (4)
reduction, suspension, or revocation of clinical privileges; (5) modification or continuation of
previously imposed summary suspension; (6) suspension or revocation of Staff membership; or
(7) a fine.40 Plaintiff did not have a hearing prior to the Board’s decision to terminate his
existing contract and impose conditions on its renewal.
The members of the Executive Committee, who were not aware of the specific
allegations against Plaintiff, recommended to the Board that the harassment allegations against
Plaintiff be vetted through peer review. The Board did not follow this recommendation,
although they did impose internal monitoring of Plaintiff’s behavior by hospital medical staff as
one condition of his new contract. In 2015 and 2017, two other Hospital medical personnel
engaged in allegedly disruptive behaviors, including yelling and cursing at staff, but the Board
did not require these individuals to attend a multidisciplinary outpatient assessment.

39

Doc. 126-3 at 27.

40

Id. at 40.

9

III.

Discussion
A.

Count I: Improper Medical Examination

Both parties move for summary judgment on Count I, which alleges that the Hospital
required Plaintiff to submit to an improper medical examination in violation of the Rehabilitation
Act. Plaintiff asserts that the Hospital violated his rights by requiring him to undergo an overlybroad medical examination, which was likely to elicit information about a disability. The
Hospital asserts that under the Rehabilitation Act, the inquiry must have been intended to or
necessitated revealing a disability, which it was not, and further, the medical examination was
job-related and consistent with business necessity.
The Rehabilitation Act incorporates the “standards applied under title I of the American
with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).”41 Under Title I of the American with
Disabilities Act (“ADA”),
[a] covered entity shall not require a medical examination and shall
not make inquiries of an employee as to whether such employee is
an individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.42
“This prohibition is intended to prevent inquiries of employees that do not serve legitimate
business purposes.”43
The Rehabilitation Act differs critically from the ADA in one respect, namely that the
Rehabilitation Act expressly prohibits discrimination solely on the basis of disability.44 “The
ADA, on the other hand, proscribes discrimination ‘on the basis of disability[,]’ 42 U.S.C. §
41

29 U.S.C. § 794(d).

42

42 U.S.C. § 12112(d)(4)(A).

43

Riechmann v. Cutler-Hammer, Inc., 95 F. Supp. 2d 1171, 1184 (D. Kan. 2000) (citing 29 C.F.R. Pt.
1630, App. § 1630.13(b)).
44

29 U.S.C. § 794(a).

10

12112(a) (2009) or, before its amendment in 2008, ‘because of the disability.’”45 Under the
ADA, a medical inquiry is improper if it “may tend to reveal a disability.”46 Both the Fifth and
Sixth Circuits, however, have applied the “sole cause” requirement from the Rehabilitation Act
to the medical inquiry standard in cases brought under the Rehabilitation Act, holding that the
medical inquiry must be “intended to reveal or necessitates revealing a disability” to violate the
act.47 Other courts have applied the “tend to reveal” standard to claims arising under both the
ADA and Rehabilitation Act, although typically when those statutes are pled together.48
Regardless of the standard applied, a medical examination and inquiry may be permissible if the
“examination or inquiry is shown to be job-related and consistent with business necessity.”49
The Court need not decide the proper standard because the Court finds that the Hospital’s inquiry
was job-related and consistent with business necessity.
The Tenth Circuit has noted that there is little case law concerning “the proper
interpretation of business necessity.”50 “[C]ourts will readily find a business necessity if an
employer can demonstrate that a medical examination or inquiry is necessary to determine . . .
whether the employee can perform job-related duties when the employer can identify legitimate,
non-discriminatory reasons to doubt the employee’s capacity to perform his or her
duties.”51 “An employer’s request that an employee undergo a medical examination must be

45

Lee v. City of Columbus, 636 F.3d 245, 250 n.4 (6th Cir. 2011).

46

Conroy v. New York State Dep’t of Corr. Servs., 333 F.3d 88, 95 (2d Cir. 2003).

47

Lee, 636 F.3d at 255; Taylor v. Shreveport, 798 F.3d 276, 284 (5th Cir. 2015).

48

See, e.g., Bomba v. Dep’t of Corr., No. 16-cv-1450, 2018 WL 7019254, at *12 (M.D. Pa. Sept. 4, 2018);
Scott v. Napolitano, 717 F. Supp. 2d 1071, 1084 (S.D. Cal 2010); Downs v. Mass. Bay Transp. Auth., 13 F. Supp. 2d
130, 138 (D. Mass. 1998).
49

42 U.S.C. § 12112(d)(4)(A).

50

Adair v. City of Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016) (quoting Conroy v. N.Y. State Dep’t of
Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003)).
51

Id. (quoting Conroy, 333 F.3d at 98).

11

supported by evidence that would ‘cause a reasonable person to inquire as to whether an
employee is still capable of performing his job.’”52 Equal Employment Opportunity
Commission (“EEOC”) guidance under the ADA suggests that an inquiry is job-related and
consistent with business necessity when an employer “has a reasonable belief, based on objective
evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a
medical condition; or (2) an employee will pose a direct threat due to a medical condition.”53
The Hospital received two KHRC complaints alleging “unwanted verbal and physical
sexual harassment by Respondent’s anesthesiologist,”54 and that “female patients were subjected
to unwanted verbal and physical sexual harassment by this same anesthesiologist.”55 In response
to these complaints, the Hospital hired Waldman to conduct an internal investigation regarding
Plaintiff’s behavior. Her report detailed multiple allegations of inappropriate sexual behavior by
Plaintiff toward staff and patients, including sexual comments and innuendos, “touchy feely”
conduct, inappropriately uncovering and exposing female patients, inappropriately touching
female patients, including touching their breasts while applying “bair huggers,” and delivery
room behavior described by multiple obstetricians as “odd.”56
After receiving this internal report, the Hospital terminated its exclusive provider contract
with Plaintiff and stipulated its renewal on Plaintiff undergoing a multidisciplinary outpatient
assessment. Plaintiff underwent a comprehensive biopsychosocial assessment at PRC, which
evaluated his physical, mental, and psychological health and his sexual behaviors. PRC’s

52

Id. (quoting Conrad v. Bd. of Johnson Cty. Comm’rs, 237 F. Supp. 2d 1204, 1230 (D. Kan. 2002)).

53
Equal Employment Opportunity Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act, 2000 WL 33407181, at *6 (July 27, 2000).
54

Docs. 123-4 at 8; 123-5 at 8.

55

Doc. 123-5 at 8.

56

Doc. 127-3 at 3–10.

12

evaluation process comes from the Federation of State Medical Board guidelines for state
medical boards to address sexual boundary issues in physicians.57
As an initial matter, the Court finds that Plaintiff’s contention that this could not have
been business necessity because similarly situated individuals were not subjected to the
evaluation to be without merit. While “an employer’s standard practice with regard to medical
examinations is certainly relevant evidence of what is ‘necessary,’”58 there is no evidence in the
record that the other two hospital staff named by Plaintiff were facing allegations of sexual
misconduct with patients. The alleged “disruptive behaviors” of the other hospital staff—
specifically, cursing and yelling at staff—were of a different kind and degree than the allegations
against Plaintiff. Accordingly, the Court finds that the Hospital’s actions with regard to these
staff members is not evidence of the Hospital’s standard practice.
Next, Plaintiff asserts that the Court should only consider whether the medical inquiry
was consistent with his essential duties as an anesthesiologist, namely, examining patients to
assess their physical condition, ordering necessary tests and lab work, providing necessary
consults, administering anesthetic, providing continuous monitoring of patients in the operative
suite, providing necessary medication, and monitoring the patient during the acute recovery
phase.59 The Court finds, however, that this list ignores the essential duties of Plaintiff’s job as a
physician, a professional engaged in a career of public trust. Allegations of sexual misconduct
involving patients, such as those alleged here—namely, inappropriately uncovering and exposing
female patients, inappropriately touching female patients’ breasts, or inappropriately engaging in

57

See Addressing Sexual Boundaries: Guidelines for State Medical Boards, Federal of State Medical
Boards (May 2006), https://www.fsmb.org/siteassets/advocacy/policies/grpol_sexual-boundaries.pdf.
58

Tice v. Centre Area Transp. Auth., 247 F.3d 506, 518 (3d Cir. 2001).

59

Doc. 122 at 5.

13

sexual conversations with patients—certainly betray public trust. While Plaintiff repeatedly
refers to his behavior as merely “disruptive,”60 the uncontroverted facts demonstrate that the
alleged conduct was far more serious. The Hospital required the evaluation only after
conducting a month-long investigation to validate concerns raised in two separate KHRC
complaints filed against Plaintiff, one of which explicitly referenced his inappropriate conduct
with patients.61 The Hospital referred Plaintiff to an institution specializing in evaluating
professionals, and the comprehensive evaluation was based on guidelines from the Federation of
State Medical Boards to assess sexual boundary issues in physicians.62
Plaintiff argues that the Hospital cannot point to the informal blanket guidance of the
Federation of State Medical Boards because no entity is excused from the need to conduct an
individualized evaluation. He cites Nichols v. City of Mitchell in support, where a district court
granted summary judgment for the plaintiffs on their ADA claims after finding that the plaintiffs
were improperly required to submit to a medical examination.63 In Nichols, the employer—a
transport company operating solely in South Dakota—required its employees to submit to a
Department of Transportation medical certification examination, which is required for interstate
truck drivers.64 The Court held the examination requirement violated the ADA because “there
was no individualized assessment of each plaintiff’s ability to perform the job safely.”65

60

See, e.g., Doc. 122 at 2, 23.

61

Doc. 123-5 at 8.

62
See Addressing Sexual Boundaries: Guidelines for State Medical Boards, Federal of State Medical
Boards (May 2006), https://www.fsmb.org/siteassets/advocacy/policies/grpol_sexual-boundaries.pdf.
63

914 F. Supp. 2d 1052, 1060–61 (D.S.D. 2012).

64

Id. at 1060.

65

Id. at 1061.

14

Here, however, Plaintiff was required to undergo a holistic medical evaluation after the
Hospital received two KHRC complaints against him and conducted a month-long individualized
investigation into Plaintiff’s behavior toward staff and patients at the Hospital. The investigation
validated concerns about his sexual boundaries with patients, and accordingly, the Hospital—
through PRC—evaluated Plaintiff based on alleged sexual misconduct discovered in the
investigation. The Court does not make a broad statement regarding when a comprehensive
medical examination may be required of employees. Rather, the Court finds that under the facts
of this case—a physician facing allegations of sexual misconduct involving patients—the
Hospital did not violate the letter or spirit of the Rehabilitation Act in requiring Plaintiff to
undergo a holistic evaluation based on the Federation of State Medical Boards guidelines.
Given the undisputed facts about what the Hospital knew at the time it required Plaintiff
to undergo the evaluation, the Court finds that were “legitimate, non-discriminatory reasons to
doubt the employee’s capacity to perform his or her duties.”66 Further, the Court finds that
allegations of sexual misconduct with patients would certainly “cause a reasonable person to
inquire” whether a physician is capable of performing his job, namely, whether it is safe and
prudent for patients to be under Plaintiff’s care.67 Accordingly, the Court finds that the medical
inquiry required of Plaintiff was job-related and consistent with business necessity and grants
summary judgment for the Hospital.

66

Adair v. City of Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016) (quoting Conroy v. N.Y. State Dep’t of
Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003)).
67
Equal Employment Opportunity Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees under the Americans with Disabilities Act, 2000 WL 33407181, at *2 (July 27, 2000).

15

B.

Count II: Confidentiality Violation

Both parties move for summary judgment on Count II, which alleges that the Hospital
improperly disclosed the results of Plaintiff’s medical examination. Plaintiff asserts that the
disclosure of the PRC report to the Board violated his confidentiality. The Hospital responds
that the disclosure was restricted to the agents of the Hospital—the Board—and further, that the
report was kept confidential.
As an initial matter, the Court notes that the confidentiality language on the PRC
Exchange of Information form does not govern Plaintiff’s claim; rather, the standards of the
Rehabilitation Act and ADA govern whether there is genuine issue of material fact as to whether
the Hospital violated the law.
The ADA requires that “information obtained regarding the medical condition or history
of the applicant is collected and maintained on separate forms and in separate medical files and is
treated as a confidential medical record.”68 “Employers may share such information only in
limited circumstances with supervisors, managers, first aid and safety personnel, and government
officials investigating compliance with the ADA.” 69 This provision is incorporated into the
Rehabilitation Act, under which Plaintiff brings his claim.70 Based on the plain language of the
statute and the policies behind enacting it, the Court finds that the Hospital’s conduct did not
violate the Rehabilitation Act.
The Court finds the Northern District of Georgia’s analysis in Floyd v. Sun Trust Banks,
Inc.71 instructive. In Floyd, it was undisputed that the individual to whom the examination was
68

42 U.S.C. § 12112(d)(3)(B).

69

Equal Employment Opportunity Enforcement Guidance, 2000 WL 33407181, at *2 (citing 42 U.S.C. §
12112(d)(3)(B)).
70

29 U.S.C. § 794(d).

71

878 F. Supp. 2d 1316 (N.D. Ga. 2012).

16

disclosed did not fit one of the stated exceptions to the statute—a supervisor being informed of
an accommodation, first aid personnel, or government officials investigating ADA compliance—
and further, the file was properly kept separately.72 Thus, the Floyd court found the relevant
question to be whether the confidential information was kept as a confidential medical record.73
Similarly, here, the members of the Board do not meet a statutory exception, and there are no
allegations that the file was not kept separately. Accordingly, the question presented is whether
the PRC report was kept as a confidential medical record when Jacobson and Ramirez received it
and shared it with the Board.
In Floyd, the court considered the definition of confidential: “The Black’s Law
Dictionary defines ‘confidential’ as ‘[e]ntrusted with the confidence of another or with his secret
affairs or purposes.’ Thus, a ‘confidential medical record’ is a medical record that is kept in
confidence.”74 “Section 12112(d)’s confidentiality requirement balances . . . competing interests
by ensuring that the information disclosed pursuant to an employer’s medical inquiry spreads no
farther than necessary to satisfy the legitimate needs of both employer and employee.”75 The
court rejected the plaintiff’s contention that any disclosure necessarily violates confidentiality
under the ADA, and found that the proper question is whether the disclosure was for a
“legitimate non-discriminatory” purpose and extends “no further than necessary so it remains
confidential.”76 In Floyd, the information was given to an attorney for the purpose of defending

72

See id. at 1323.

73

Id.

74

Id. (citing DELUXE BLACK’S LAW DICTIONARY 297 (6th ed. 1991).

75

Id. at 1324 (quoting Doe v. U.S. Postal Serv., 317 F.3d 339, 344 (D.C. Cir. 2003)).

76

Id. at 1325.

17

against a FLSA lawsuit.77 The court held that “this limited disclosure does not cut against the
ADA’s policy of preventing bias and stigma in the workplace.”78
In the present case, the purpose of the disclosure was to inform the Board—the agents of
the Hospital responsible for ordering the evaluation and determining the terms of Plaintiff’s new
contract—of the results of his evaluation. While Plaintiff only specifically signed a release of
the report to two named individuals, Jacobson and Ramirez,79 the Board had previously
communicated with Plaintiff and specifically told him that he must “authorize the hospital to
communicate with the facility regarding [his] treatment.”80 It is uncontroverted that the Board
controlled the matter involving Plaintiff and that the Board was responsible for offering Plaintiff
a new contract.81 Moreover, it is undisputed that Plaintiff’s service contract was between him
and the Hospital, which was governed by the Board.82 In the present case, the Hospital was
acting through the Board.
The disclosure of the report to the Board was for a legitimate, non-discriminatory
purpose: making an informed business decision pursuant to an evaluation conducted in response
to concerns that Plaintiff was acting in a sexually inappropriate manner with female staff and
patients. The purpose of the confidentiality provision of the ADA, namely, “avoiding subjecting
employees to the blatant and subtle stigma that attaches to being identified as disabled,”83 is in
no way impacted by the Board of a Hospital using a permissible medical inquiry for the narrow

77

Id. at 1325.

78

Id. at 1326.

79

Docs. 123-22; 123-23.

80

Doc. 123-11 (emphasis added).

81

Doc. 123-6 at 25:2–9. Plaintiff admits this fact. Doc. 126 at 10.

82

Doc. 123-1.

83

Doe v. U.S. Postal Serv., 317 F.3d 339, 344 (D.C. Cir. 2003) (internal quotation removed).

18

and legitimate purpose of determining whether a physician is fit to practice medicine and
tailoring his contract to the findings of that inquiry. Moreover, the disclosure went “no further
than necessary.”84 There are no allegations that this information was disclosed outside the
Board, nor any evidence that this information was used for any purpose other than determining
(1) whether the Hospital ought to offer Plaintiff a contract and (2) what the conditions of that
contract ought to be. As discussed above, the Hospital had a legitimate, job-related business
reason to require Plaintiff undergo the evaluation in the first place, and subsequently, the
Hospital had a legitimate, non-discriminatory reason to share the information with the
individuals acting as the Hospital’s decision-makers with regard to Plaintiff’s position at the
Hospital. There is no genuine issue of material fact as to whether the report was maintained as a
confidential medical record. Accordingly, the Court grants summary judgment on Count II for
the Hospital.
C.

Count III: Disability Discrimination

The Hospital moves for summary judgment on Count III, which alleges that Plaintiff was
discriminated against on the basis of his disability in violation of the Rehabilitation Act.
Defendant asserts that Plaintiff cannot establish a prima facie case of disability discrimination
because he does not have a disability that substantially limits his life activities, and further, that
he cannot demonstrate a genuine issue of material fact that his disability was the sole cause of his
termination. Plaintiff responds that genuine issues of material fact exist as to each element of his
claim.
To establish a prima facie case of disability discrimination under the Rehabilitation Act,
Plaintiff must show that (1) he has a disability, (2) he is otherwise qualified, with or without

84

Id.

19

reasonable accommodation, and (3) “[the adverse action occurred] under circumstances which
give rise to an inference that [the adverse action] was based solely on his disability.”85 A
disability under both the ADA and Rehabilitation Act is “(A) a physical or mental impairment
that substantially limits one or more major life activities of such individual; (B) a record of such
an impairment; or (C) being regarded as having such an impairment.”86 Major life activities
include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.”87 Whether or not an impairment “substantially limits” a major
life activity “is not meant to be a demanding standard,” and “should not demand extensive
analysis.”88 To show that his disability substantially limits his ability to perform these major life
activities, Plaintiff must show that he is substantially limited in his ability to perform the major
life activity “as compared to most people in the general population.”89 This analysis requires an
“individual assessment.”90 “A medical diagnosis is insufficient; rather, the [Rehabilitation Act]
requires plaintiffs to offer evidence that the extent of the limitation caused by their impairment in
terms of their own experience is substantial.”91
It is undisputed that Plaintiff suffers from a memory impairment stemming from removal
of a brain tumor in 1989. Assuming, arguendo, that Plaintiff’s life activities are substantially
limited, he falls far short of establishing a genuine issue of material fact that his termination was

85

See Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996).

86

42 U.S.C. § 12102(1); 29 U.S.C. § 794(d).

87

42 U.S.C. § 12102(2)(A).

88

29 C.F.R. § 1630.2(j)(1)(i),(iii).

89

Id. § 1630.2(j)(1)(ii).

90

Id. § 1630.2(j)(1)(iv).

91

Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010).

20

“based solely on his disability.”92 An employer makes an adverse employment decision “solely”
because of its employee's disability when “the employer has no reason left to rely on to justify its
decision other than the employee's disability.”93 Here, it is uncontroverted that the Hospital
received two KHRC complaints alleging that Plaintiff sexually harassed female staff and
patients. The Hospital then conducted a month-long internal investigation into these complaints
and substantiated multiple allegations that Plaintiff was sexually inappropriate with staff and
patients. Accordingly, the Hospital terminated its contract with Plaintiff and conditioned a new
contract on Plaintiff being evaluated for these concerns and complying with any resulting
recommendations from the evaluation. Even viewing all facts in the light most favorable to
Plaintiff, no reasonable jury could infer that the Hospital acted solely on the basis of Plaintiff’s
memory impairment. Indeed, Plaintiff presents no evidence from which a jury could infer that
his memory impairment was in any way the cause of the Board’s actions, much less the sole
cause. He makes no argument as to how he bears his burden of establishing an inference that his
disability was the sole cause of the Hospital’s actions—an element of his prima facie case—but
instead jumps to evidence which he claims demonstrates pretext, the third prong of the
McDonnell Douglas burden shifting analysis.94
The McDonnell Douglas burden shifting analysis applies to claims based on
circumstantial evidence brought under the Rehabilitation Act.95 Once a plaintiff establishes a
prima facie case, the burden shifts to the defendant to establish legitimate, non-discriminatory

92

Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996) (emphasis added).

93

Verkade v. U.S. Postal Serv., 2010 WL 2130616, 378 F. App’x 567, 578 (6th Cir. 2010) (unpublished)
(alteration in original).
94

Doc. 126 at 30–31.

95

See, e.g., Cummings v. Norton, 393 F.3d 1186, 1189 (10th Cir. 2005).

21

reasons for decision.96 If established, the burden shifts to the plaintiff to show that those reasons
are pretextual.97 As explained above, the Court finds that Plaintiff cannot establish a prima facie
case of disability discrimination, rendering a pretext analysis unnecessary. Out of an abundance
of caution, the Court addresses Plaintiff’s pretext arguments below.
Plaintiff argues that he can demonstrate pretext because (1) the Hospital did not comply
with its own bylaws in taking corrective action against Plaintiff; (2) the Hospital did not follow
an Executive Committee recommendation with regard to Plaintiff’s discipline; (3) the proposed
contract following the PRC report was “worse;” (4) the proposed terms of the new contract went
beyond PRC’s recommendations; (5) the Hospital allowed Plaintiff to work during the 120-day
notice period following the initial termination letter; and (6) similarly situated staff were treated
more favorably.
Plaintiff’s arguments regarding pretext are without merit. First, the uncontroverted facts
demonstrate that the bylaws, which define “corrective action,” do not apply to the Hospital’s
termination of an exclusive provider contract.98 It is undisputed that Plaintiff’s medical
privileges at the Hospital were not affected. Second, it is uncontroverted that the Executive
Committee did not know the details of the allegations against Plaintiff. Further, the Board
imposed internal monitoring—the recommendation of the Executive Committee—as one of
Plaintiff’s new contract conditions. Third, the Court finds that Plaintiff’s contention that his new
contract was “worse” to be without merit. It is uncontroverted that the Hospital imposed

96

Id. As discussed above, the Hospital’s legitimate reason for its actions is that it was facing legal exposure
from multiple sexual harassment complaints filed against the Hospital because of Plaintiff’s actions.
97

Id.

98

Corrective action may include (1) a letter of warning; (2) a letter of admonition or reprimand; (3)
imposition of probation; (4) reduction, suspension, or revocation of clinical privileges; (5) modification or
continuation of previously imposed summary suspension; (6) suspension or revocation of Staff membership; or (7) a
fine. Doc. 126-3 at 40.

22

conditions on Plaintiff’s new contract after receiving the results of the PRC report; the
imposition of conditions was consistent with the Board’s original letter to Plaintiff, which
specifically said “a new contract . . . shall include terms addressing behavioral issues that have
led us to terminate the existing agreement.”99 Fourth, the Court finds that Plaintiff has put forth
no evidence to support his contention that the Hospital agreed to be limited by PRC’s
recommendations in determining what terms would be included in his new contract. Fifth,
Plaintiff has put forth no evidence to support his speculation that the Hospital was not genuinely
concerned about his behavior. It is undisputed that the Hospital conducted a month-long internal
investigation into Plaintiff’s behavior and terminated his original contract within weeks of
receiving the investigation results. It is also undisputed that the Hospital hoped to resolve the
situation in a way that retained Plaintiff as the Hospital’s primary anesthesiologist. Finally, as
discussed above, the Court finds that neither of the two hospital staff accused of disruptive
behavior are similarly situated to Plaintiff because the uncontroverted facts demonstrate that they
were not facing allegations of sexual misconduct with patients. Even drawing all inferences in
favor of Plaintiff, the Court finds there is no genuine issue of material fact as to whether the
Board acted—at the very least, in part—based on the sexual harassment allegations against
Plaintiff and the results of its internal investigation.
Plaintiff bears the burden of presenting evidence from which a reasonable jury could find
that the Hospital’s articulated reason is pretextual.100 In the present case, he must present
evidence from which a reasonable jury could conclude that the sole reason the Hospital took

99

Doc. 123-11.

100

See Cummings, 393 F.3d at 1189.

23

action was because of his memory impairment. Plaintiff has not done so here. Accordingly, the
Court grants summary judgment for the Hospital with regard to Count III.
D.

Count IV and V: Fair Credit Reporting Act Violations

The Hospital moves for summary judgment on Counts IV and V, which allege consumer
reporting violations under both the FCRA and KFCRA based on Waldman’s internal
investigation and report. Plaintiff asserts that Waldman was not acting as attorney when she
conducted an independent investigation at the hospital, and therefore her report violated the
FCRA because she did not have Plaintiff’s consent as to the scope or disclosure of the report.
“The Kansas Fair Credit Reporting Act is modeled on the federal Fair Credit Reporting Act, 15
U.S.C. §§ 1681–1681t. ‘Therefore, case law interpreting the federal Act, although not
controlling, is persuasive.’”101 Accordingly, the Court considers the FCRA and KFCRA claims
together.
The FCRA was enacted “to require that consumer reporting agencies adopt reasonable
procedures for meeting the needs of commerce for consumer . . . information in a manner which
is fair and equitable to the consumer.”102 A consumer report includes a communication of
information by a consumer reporting agency related to a consumer’s “character, general
reputation, [and] personal characteristics.”103 However, a “report containing information solely
as to transactions or experiences between the consumer and the person making the report” is
excluded from the definition of a consumer report.104

101
McKown v. Dun & Bradstreet, Inc., 744 F. Supp. 1046, 1050 (D. Kan. 1990) (citing Peasley v.
TeleCheck of Kan., Inc., 637 P.2d 437, 440 (Kan. 1981)).
102

15 U.S.C. § 1681(b).

103

15 U.S.C. § 1681a(d)(1).

104

15 U.S.C. § 1681a(d)(2)(A)(i).

24

As an initial matter, the Court addresses Plaintiff’s contention that the Hospital
“disavowed an attorney-client relationship with Waldman.”105 The Court finds this statement to
be wholly without support. In so arguing, Plaintiff points to the following exchange:
Q: So Jill Waldman, though, was not acting as a lawyer on behalf
of the hospital when she did the investigation, correct?
A: Jill Waldman’s responsibility was to investigate the facts and
provide a recommendation and a report to the Board of Directors,
which is what she did.106
The Court finds that Jacobson’s statement does not create a genuine issue of material fact
as to whether Waldman acted as an attorney in conducting the investigation. Immediately prior
to the statement quoted above, Jacobson testified that “[the Hospital] used legal counsel” to
conduct an investigation into Dr. Goracke,107 and that “the investigator was employed with
Lathrop Gage and had significant experience and knowledge in this particular aspect of law.”108
Plaintiff’s counsel repeatedly questioned Jacobson as to whether Waldman was an independent
investigator and whether she conducted an independent investigation; he responded “yes,”
which “in [his] opinion” that meant, “she was under no duress or obligation to report in any
particular manner,” because “she was not under [his] control.”109
No reasonable jury could find that the above exchange constitutes disavowal of the
attorney-client relationship. At no point did Jacobson affirmatively respond that Waldman was
not acting as an attorney. Further, Waldman’s report contained both a factual summary and legal

105

Doc. 126 at 42.

106

Doc. 126-2 at 36:23–37:4.

107

Doc. 126-2 at 33:5–7.

108

Id. at 33:20–24.

109

Id. at 34:9–35:2.

25

advice regarding potential legal exposure.110 Even viewing the facts in the light most favorable
to Plaintiff, the Court finds there is no genuine issue of material fact as to whether the Hospital
retained Waldman in any capacity other than as an attorney with expertise in employment law.
In arguing that Waldman was solely an independent investigator and therefore subject to
FCRA requirements, Plaintiff relies on an FTC Staff Opinion, which reads, “once an employer
turns to an outside organization for assistance in investigation of harassment claims . . . the
assisting entity is a [Credit Reporting Agency] because it furnishes ‘consumer reports to a ‘third
party’ (the employer).”111 The Court is not bound to give deference to the opinion letter. “Under
prevailing principles of administrative law, however, the FTC opinion letters are entitled to
respect but not deference.”112 The Supreme Court has held that “[i]nterpretations such as those
in opinion letters—like interpretations contained in policy statements, agency manuals, and
enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style
deference. They are entitled to respect, but only to the extent that they are persuasive.”113
Here, the Court finds that the opinion letter is neither persuasive nor applicable in the
present case. The “outside organization” turned to by the Hospital was a law firm, Lathrop
Gage. “In the context of the FCRA, several courts have explained that an attorney who conducts
an investigation on behalf of an employer-client is not a ‘third party’ in the same way that a
credit bureau or detective agency would be.”114
When an attorney conducts for an employer/client an
investigation of an employee's dealings with the employer, he is
acting as the client, just as would be the case if the employer had
110

See Doc. 123-10 at 13.

111

FTC Staff Opinion Ltr., 1999 WL 33932152, at *1–2 (Apr. 5, 1999).

112

Hartman v. Lisle Park Dist., 158 F. Supp. 2d 869, 876 (N.D. Ill. 2001).

113

Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (internal quotation removed).

114

Mattiaccio v. DHA Grp., Inc., 21 F. Supp. 3d 15, 22 (D.D.C. 2014) (collecting cases).

26

one of its employees conduct the investigation. This is qualitatively
different from the situation that exists when an employer contracts
with an outside entity lacking a fiduciary and agency relationship
like that of attorney and client.115
“There is nothing in the FCRA or its history that indicates that Congress intended to abrogate the
attorney-client or work-product privileges, as would be the effect of applying the FCRA’s
requirements (which include disclosure of the report) to [internal investigation by an entity’s
attorney].”116 It is well-established that an attorney is an agent of their client when acting on
behalf of their client.117 Accordingly, the Court finds that Waldman was acting as the attorneyagent of the Hospital when conducting her internal investigation.
Moreover, the Court finds that Waldman’s report constitutes a “report containing
information solely as to transactions or experiences between the consumer [Plaintiff] and the
person making the report [the Hospital].”118 Waldman “conduct[ed] an investigation concerning
alleged inappropriate behavior concerning Douglas Goracke.”119 She investigated “virtually all
aspects of Dr. Goracke’s history at [the Hospital]”120 by interviewing eighteen individuals
associated with the hospital and prepared her findings and legal exposure conclusions in a
report.121 “[A] report prepared by an attorney about an employee’s transactions or experiences

115

Hartman, 158 F. Supp. 2d at 876–77.

116

Id. at 876.

117
See, e.g., Gripe v. City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002); Hartman, 158 F. Supp. 2d at 876
(citing Steffes v. Stepan Co., 144 F.3d 1070, 1075 (7th Cir. 1998)); Mattiaccio v. DHA Grp., Inc., 21 F. Supp. 3d 15,
22 (D.D.C. 2014).
118

15 U.S.C. § 1681a(d)(2)(A)(i).

119

Doc. 123-10.

120

Doc. 126-41.

121

To the extent Plaintiff alleges that the report went beyond his relationship with the Hospital, the Court
finds this contention to be without support. It is undisputed that the information in the report came from interviews
with hospital personnel or Plaintiff’s personnel file at the Hospital, which includes a letter dated July 8, 1992 from
Plaintiff to the Hospital, which describes his 1989 arrest and subsequent plea. Doc. 123-3 at 16.

27

with the attorney's client (the employer) qualifies as a ‘report containing information solely as to
transactions or experiences between the consumer and the person making the report’ within the
meaning of § 1681a(d)(2)(A)(i).”122 Accordingly, the Court finds that Waldman’s report does
not constitute a consumer credit report and grants summary judgment for the Hospital on Counts
IV and V.
IT IS THEREFORE ORDERED BY THE COURT Plaintiff’s Motion for Partial
Summary Judgment (Doc. 121) is denied and Defendant’s Motion for Summary Judgment (Doc.
123) is granted. This case is dismissed in its entirety.
IT IS SO ORDERED.
Dated: May 6, 2019
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

122

Hartman, 158 F. Supp. 2d at 876.

28