MADIGAN v. WEBBER HOSPITAL ASSOC et al

Filing 84

ORDER denying 37 Motion for Summary Judgment; denying 39 Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN M. MADIGAN, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
WEBBER HOSPITAL ASSOC., et al., )
)
Defendants.
)

2:11-cv-00094-JAW

ORDER ON MOTIONS FOR SUMMARY JUDGMENT
In this employment dispute, a radiologist lost his job when the hospital where
he worked decided to engage a new medical group to provide its radiology services.
The radiologist claims that when he applied for a position with the new group, both
the hospital and the new provider discriminated against him on the basis of his age,
and that the hospital tortiously interfered with his prospective contractual
advantage with the new provider. The new provider moves for summary judgment
on the age discrimination claim, and the hospital moves for summary judgment on
the tortious interference claim.

Concluding that there are genuine issues of

material fact that preclude summary judgment, the Court denies the motions.
I.

STATEMENT OF FACTS
A.

Procedural History

On March 17, 2011, Stephen M. Madigan, M.D., filed a complaint in this
Court against The Webber Hospital Assoc. d/b/a Southern Maine Medical Center
(SMMC) and Spectrum Medical Group, P.A. (Spectrum). Compl. (ECF No. 1). On

1

April 4, 2011, Dr. Madigan amended his complaint. Am. Compl. (ECF No. 5). Dr.
Madigan’s Amended Complaint alleges, in Count I, that SMMC and Spectrum
jointly and intentionally engaged in age discrimination in violation of the Maine
Human Rights Act (MHRA) and the Age Discrimination in Employment Act
(ADEA), and, in Count II, that SMMC tortiously interfered with Dr. Madigan’s
prospective contractual advantage with Spectrum.

On May 16, 2011, Spectrum

answered the Amended Complaint. Def. Spectrum’s Answer and Defenses to Pl.’s
Am. Compl. (ECF No. 8).

On May 20, 2011, SMMC answered the Amended

Complaint. Def. SMMC’s Answer and Defenses to the Am. Compl. (ECF No. 10).
On February 17, 2012, SMMC filed a motion for summary judgment on Count
II and an accompanying statement of material facts. SMMC’s Mot. for Summ. J. on
Pl.’s Tortious Interference Claim (ECF No. 37) (SMMC’s Mot.); SMMC’s Statement of
Material Facts (ECF No. 38) (DSMF2). Also on February 17, 2012, Spectrum filed a
motion for summary judgment on Count I and an accompanying statement of
material facts. Def. Spectrum’s Mot. for Summ. J. (Spectrum’s Mot.) (ECF No. 39);
Def. Spectrum’s Statement of Material Facts in Support of Mot. for Summ. J. (ECF
No. 40) (DSMF1).
On April 27, 2012, Dr. Madigan responded to SMMC’s motion and statement
of material facts, and included a statement of additional material facts. Pl.’s Opp’n
to SMMC’s Mot. for Summ. J. on Pl.’s Tortious Interference Claim (ECF No. 57)
(Pl.’s Opp’n 2); Pl.’s Resp. to SMMC’s Statement of Material Facts (PRDSMF2) and
Statement of Additional Facts (PSAMF2) (ECF No. 58). On April 30, 2012, Dr.

2

Madigan responded to Spectrum’s motion and statement of material facts, and
included a statement of additional material facts. Pl.’s Opp’n to Spectrum’s Mot. for
Summ. J. (ECF No. 61) (Pl.’s Opp’n 1); Pl.’s Resp. to Spectrum’s Statement of
Material Facts (PRDSMF1) and Statement of Additional Facts (PSAMF1) (ECF No.
62).
On May 18, 2012, SMMC replied to Dr. Madigan’s response and statement of
additional material facts. SMMC’s Reply Mem. in Supp. of Mot. for Summ. J. on
Pl.’s Tortious Interference Claim (ECF No. 69) (SMMC’s Reply); SMMC’s Reply to
Statement of Additional Material Facts (ECF No. 68) (DRPSAMF2). On July 12,
2012, Spectrum replied to Dr. Madigan’s response and statement of additional
material facts. Reply to Pl.’s Opp’n to Def. Spectrum’s Mot. for Summ. J. (ECF No.
79) (Spectrum’s Reply); Def. Spectrum’s Reply to Pl.’s Statement of Additional
Material Fact and Def. Spectrum’s Resp. to Pl.’s Objections to Def.’s Statement of
Material Fact (ECF No. 80) (DRPSAMF1).
On August 1, 2012, Dr. Madigan responded to Spectrum’s evidentiary
objections. Pl.’s Local Rule 56(e) Resp. to Def. Spectrum’s Evidentiary Objections
(ECF No. 83) (Pl.’s Evid. Resp. 1).
B.

Factual Background
1.

The Summary Judgment Praxis

In accordance with “the conventional summary judgment praxis,” the Court
recounts the facts in the light most hospitable to Dr. Madigan’s case theories,
consistent with record support. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,

3

17 (1st Cir. 2002). In compliance with this obligation, the Court recites supported
facts as true even if disputed by SMMC or Spectrum.
2.

Relevant Background

Stephen M. Madigan, M.D. is a radiologist. DSMF2 ¶ 1; PRDSMF2 ¶ 1. Dr.
Madigan first joined a group of radiologists practicing at SMMC on July 22, 1985.
DSMF2 ¶ 2; PRDSMF2 ¶ 2. As the senior radiologists in the group retired, Dr.
Madigan and Dr. Thomas Tupper formed Southern Maine Imaging Associates
(SMIA) in 1994. DSMF2 ¶ 3; PRDSMF2 ¶ 3. Two other radiologists later joined
SMIA: Dr. Michael Merriam in 1997 and Dr. Gregory Weltin in 2001. DSMF2 ¶ 4;
PRDSMF2 ¶ 4.

Drs. Madigan, Tupper, Merriam and Weltin were equal

shareholders in and employed by SMIA. DSMF2 ¶ 5; PRDSMF2 ¶ 5.
SMIA provided radiology services to SMMC pursuant to a contract between
SMIA and SMMC from 1994 through April 30, 2010. DSMF2 ¶ 6; PRDSMF2 ¶ 6.
The contract was “evergreen,” meaning that it would be automatically renewed
unless notice of non-renewal was provided to SMIA. DSMF2 ¶ 7; PRDSMF2 ¶ 7.
Spectrum

is

a

physician-owned

and

physician-directed

professional

organization that provides specialty medical services in many fields. DSMF1 ¶ 1;
PRDSMF1 ¶ 1. Spectrum provides its services to more than forty hospitals, medical
centers, and health care facilities in Maine and New Hampshire.

DSMF1 ¶ 1;

PRDSMF1 ¶ 1. Spectrum is comprised of several divisions, separated by specialty
and geographic region.

DSMF1 ¶ 2; PRDSMF1 ¶ 2.

4

These divisions include

Anesthesiology North, Anesthesiology South, Pathology, Radiation Oncology,
Radiology North, and Radiology South. DSMF1 ¶ 2; PRDSMF1 ¶ 2.
Spectrum and SMMC are separate legal entities; they are not commonly
owned, and do not have common management or centralized labor relations.
DSMF1 ¶ 25; PRDSMF1 ¶ 25. Spectrum has no control over SMMC’s operations,
employees, policies, or labor relations.1 DSMF1 ¶ 25; PRDSMF1 ¶ 25.
During the time period relevant to this action, David Landry was Spectrum’s
Chief Executive Officer (CEO); Jeff Cutler was Spectrum’s Director of Human
Resources; Brad Clark was Spectrum’s Director of Operations; Michael Quinn,
M.D., was the Managing Director of Spectrum’s Radiology South Division; Ed
McGeachey was SMMC’s President and CEO; Frank Lavoie, M.D., was SMMC’s
Executive Vice-President and Chief Operating Officer; and Steve Keegan was
SMMC’s Vice-President of Clinical Services. DSMF1 ¶ 3; PRDSMF1 ¶ 3.
3.

SMMC Decides to Change Radiology Service Providers

In June 2009, SMMC’s Chief Operating Officer, Frank Lavoie, M.D., met
with Dr. Madigan, ostensibly over the issue of nighttime coverage. 2 PSAMF1 ¶ 37;

The Plaintiff denied that SMMC has no control over the radiologists who worked at its
hospital, supporting its denial with a barrage of factual assertions. PRDSMF1 ¶ 25. Though some of
these assertions are unsupported by citations to the record, many are based on an Agreement
between SMMC and Spectrum dated May 1, 2010. See DSMF1 Attach. 6, Agreement. Based on a
review of this Agreement, and in compliance with its obligation to view the facts in the light most
favorable to the Plaintiff, the Court has excluded Spectrum’s statement that SMMC has no control
over Spectrum’s operations, employees, policies, or labor relations.
2
Spectrum objected to and interposed a qualified response to PSAMF1 ¶ 37, which contains
five sentences and is supported by Dr. Madigan’s sworn Charge to the Maine Human Rights
Commission and Equal Employment Opportunity Commission. Spectrum’s response contains at
least five separate arguments. DRPSAMF1 ¶ 37. The first two—that no one from Spectrum was
involved in the alleged conversations between Dr. Lavoie and Dr. Madigan and that these
conversations were never communicated to Spectrum before it received the Charge of
Discrimination—the Court disregards as non-responsive. Spectrum’s third argument—that Dr.
1

5

DRPSAMF1 ¶ 37.

During this conversation, Dr. Lavoie raised the issue of

switching radiology services to Spectrum. PSAMF1 ¶ 37; DRPSAMF1 ¶ 37. Dr.
Lavoie said three times: “You’re old and your group is getting older.” PSAMF1 ¶ 37;
DRPSAMF1 ¶ 37. Dr. Lavoie also indicated that he was “concerned about [Dr.
Madigan’s] ability to provide radiology services for the hospital over the next five
years.” PSAMF1 ¶ 37; DRPSAMF1 ¶ 37. As Dr. Madigan is paralyzed from the
waist down, he suspected this reflected a feeling that someone who was paralyzed
had more problems with age.3
On October 16, 2009, SMMC through Dr. Frank Lavoie, SMMC’s Executive
Vice President and Chief Operating Officer, notified Dr. Madigan and SMIA that
SMMC would not automatically renew its professional services agreement with

Lavoie denies making the alleged age-related comments—fails because the Court is obligated to view
the facts in the light most favorable to the non-movant, Dr. Madigan. Spectrum’s fourth argument
targets only the last sentence of PSAMF1 ¶ 37, and will be discussed in turn.
Spectrum’s fifth argument is that the Charge of Discrimination cited as support for PSAMF1
¶ 37 does not meet the requirements of FED. R. CIV. P. 56(e) because it is not based on personal
knowledge and does not set out facts that would be admissible in evidence. The relevant provision is
now found in Rule 56(c)(4): “An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” FED. R. CIV. P. 56(c)(4). The
Court overrules this objection as to the first four sentences because the record citation indicates that
they are based on Dr. Madigan’s personal knowledge of his June 2009 meeting with Dr. Lavoie. See
PSAMF1 Attach. 3, Affidavit Dr. Madigan’s MHRC Charge, 2.
3
Spectrum objected to this sentence on the ground that it is “Dr. Madigan’s subjective belief
and is not a statement of material fact.” DRPSAMF1 ¶ 37. Spectrum’s general objection to PSAMF1
¶ 37 under Rule 56(c)(4) based on lack of personal knowledge is also relevant here. Dr. Madigan
responds that this sentence “is permissible lay opinion under FED. R. EVID. 701 as it is rationally
based upon Dr. Madigan’s perceptions and helpful to the determination of a fact in issue.” Pl.’s Evid.
Resp. 1 at ¶ 37. Dr. Madigan also argues that his paralysis is within his personal knowledge and
that a fact-finder “can draw the inference that Dr. Lavoie might believe that those who are paralyzed
age less well than those who are able-bodied.” Id.
This is a close call. Dr. Madigan’s subjective beliefs might be admissible for some purposes
but here his subjective belief is transferred as the subjective belief of Dr. Lavoie. In the context of a
motion for summary judgment, where the evidence is presented in a static form, the Court has
included Dr. Madigan’s statement because it is phrased as Dr. Madigan’s opinion and there is no
opportunity to further explore the foundational basis for his opinion. This does not, however, predict
the admissibility of the statement at trial.

6

SMIA on the expiration of the current contract year ending April 30, 2010, but
would go out to bid. DSMF2 ¶ 8; PRDSMF2 ¶ 8.
On November 2, 2009, Dr. Lavoie, SMMC’s Executive Vice-President and
Chief Operating Officer, called Mr. Landry, Spectrum’s CEO, to tell him that
SMMC had decided not to renew its contract with SMIA for diagnostic imaging
services at SMMC and would be sending out a Request for Proposal (RFP) for those
services. DSMF1 ¶ 4; PRDSMF1 ¶ 4. Dr. Lavoie asked Mr. Landry if Spectrum
would be interested in submitting a proposal in response to the RFP. DSMF1 ¶ 4;
PRDSMF1 ¶ 4; DSMF2 ¶ 9; PRDSMF2 ¶ 9. Mr. Landry stated that Spectrum
would be interested in submitting a proposal. DSMF1 ¶ 4; PRDSMF1 ¶ 4; DSMF2
¶ 10; PRDSMF2 ¶ 10.
During their conversation, Mr. Landry asked Dr. Lavoie why SMMC had
decided to send out the RFP instead of continuing its existing diagnostic imaging
services. Dr. Lavoie explained that (i) SMIA (a) had not kept up with the medical
imaging demands of the medical staff and current radiology, (b) did not function
well as a group and had not shown any leadership in the Radiology Department at
SMMC, and (c) were focused on their own productivity to the detriment of the
Radiology Department and service to the medical staff, and (ii) there were
increasing complaints from the medical staff at SMMC regarding SMIA, including
(a) their lack of cohesiveness, cooperation, and availability, (b) their reluctance to
adjust their work flow to meet the needs of the hospital and its medical staff, and (c)

7

the quality of their reports.4 DSMF1 ¶ 5; PRDSMF1 ¶ 5. As a result, SMMC
decided that it needed to consider alternative providers. DSMF1 ¶ 5; PRDSMF1 ¶
5.
During the same conversation, Dr. Lavoie indicated that Dr. Madigan was a
managing partner of SMIA and that he was difficult to work with and had provided
no direction for his group or the Radiology Department at SMMC. PSAMF1 ¶ 38;
DRPSAMF1 ¶ 38; PSAMF2 ¶ 30; DRPSAMF2 ¶ 30. Dr. Lavoie also stated that if
Spectrum was selected to provide diagnostic imaging services at SMMC, Drs.
Weltin, Merriam, and Tupper would be welcome to continue to practice at SMMC,
but that, given their difficulties with Dr. Madigan, SMMC wanted to see new
leadership in the Radiology Department.

PSAMF1 ¶ 39; DRPSAMF1 ¶ 39;

PSAMF2 ¶ 31; DRPSAMF2 ¶ 31. Dr. Lavoie also said, “Tupper, Merriam, and
Weltin are all good doctors and good people, but they do not play well it looks like
together show little cooperation and teamwork and there is no one running the
show. Madigan is – is a whole other story.” PSAMF1 ¶ 40; DRPSAMF1 ¶ 40;
PSAMF2 ¶ 32; DRPSAMF2 ¶ 32.

Dr. Lavoie indicated that if Spectrum were

successful, Dr. Lavoie would be open to Spectrum’s “retaining the three
aforementioned rads and putting in new leadership of the department.” PSAMF1 ¶
40; DRPSAMF1 ¶ 40; PSAMF2 ¶ 32; DRPSAMF2 ¶ 32. Dr. Lavoie also indicated

Dr. Madigan interposed a qualified response, arguing that “[t]his is far more than Mr.
Landry remembered about this conversation” in other testimony. PRDSMF1 ¶ 5. Dr. Madigan’s
accompanying citation to Mr. Landry’s deposition, however, refers to pages from the deposition
transcript not in the record. Dr. Madigan also notes that a service called Avatar had given SMIA’s
Radiology Department a high rating, see id., but this argument is non-responsive, since DSMF1 ¶ 5
relates the conversation between Mr. Landry and Dr. Lavoie, and does not assert an objective
assessment of the quality of SMIA’s Radiology Department.
4

8

that SMMC would have no objection to Dr. Madigan’s being hired by Spectrum to
work at another location.5

DSMF2 ¶ 11; PRDSMF2 ¶ 11.

Shortly after the

November 2, 2009 conversation, Mr. Landry sent an email to Michael Quinn, M.D.,
Managing Director of Spectrum’s Radiology South Division, telling Dr. Quinn about
his conversation with Dr. Lavoie. DSMF1 ¶ 7; PRDSMF1 ¶ 7.
4.

SMMC Selects Spectrum to Provide Diagnostic Imaging
Services

The RFP was issued on November 10, 2009. DSMF2 ¶ 12; PRDSMF2 ¶ 12.
On or about November 24, 2009, Spectrum received the RFP.
PRDSMF1 ¶ 8.

DSMF1 ¶ 8;

SMIA and Spectrum submitted bids in response to the RFP;

Spectrum’s submission occurred on December 30, 2009. DSMF2 ¶ 13; PRDSMF2 ¶
13; DSMF1 ¶ 8; PRDSMF1 ¶ 8. On February 2, 2010, Spectrum presented its
proposal for services to SMMC’s administration and medical staff.6 DSMF1 ¶ 8;
PRDSMF1 ¶ 8. Between November 2, 2009, and February 5, 2010, there were no
discussions between SMMC and Spectrum concerning any limitations on Dr.
Madigan’s opportunities for employment with Spectrum. DSMF2 ¶ 16; PRDSMF2 ¶
16.

Dr. Madigan denied DSMF2 ¶ 11 generally, which includes this statement. SMMC
supported this statement citing Dr. Lavoie’s deposition. DSMF2 ¶ 11. In his denial, Dr. Madigan
argues that earlier statements by Mr. Landry regarding this conversation did not include this part of
the conversation. The Court has included the statement because Dr. Madigan’s argument is more a
qualification than a denial, and does not contradict Dr. Lavoie’s testimony.
6
Dr. Madigan denied DSMF2 ¶¶ 14 and 19, which state that Spectrum’s ability to compete for
or obtain the contract for radiology services at SMMC was not contingent on any agreement by
Spectrum not [to] hire Dr. Madigan. DSMF2 ¶ 14; PRDSMF2 ¶ 14; DSMF2 ¶ 19; PRDSMF2 ¶ 19.
In compliance with its obligation to view the facts in the light most favorable to Dr. Madigan, the
Court has not included DSMF2 ¶¶ 14 and 19 in its recitation of the facts.
5

9

On February 5, 2010, Mr. Landry met with Ed McGeachey, Dr. Lavoie, and
Steve Keegan, and was informed that Spectrum had been chosen to provide
radiology services at SMMC.

PSAMF1 ¶ 41; DRPSAMF1 ¶ 41; PSAMF2 ¶ 33;

DRPSAMF2 ¶ 33; DSMF1 ¶ 9; PRDSMF1 ¶ 9; DSMF2 ¶ 15; PRDSMF2 ¶ 15.
Spectrum’s contract with SMMC for radiology services would be effective as of May
1, 2010. DSMF2 ¶ 17; PRDSMF2 ¶ 17.
The February 5, 2010, meeting also included a discussion of the radiologists
from SMIA. DSMF1 ¶ 9; PRDSMF1 ¶ 9. In particular, Mr. Landry was informed
that Dr. Madigan was “difficult to work with, uncooperative, inflexible, and
argumentative.” PSAMF1 ¶ 41; DRPSAMF1 ¶ 41; PSAMF2 ¶ 33; DRPSAMF2 ¶ 33.
Mr. Landry was also informed that, “because Dr. Madigan failed to provide
leadership to his group and the Radiology Department[,] he was viewed as the
primary reason for SMMC’s dissatisfaction with SMI and the resulting change in
service.”

PSAMF1 ¶ 41; DRPSAMF1 ¶ 41; PSAMF2 ¶ 33; DRPSAMF2 ¶ 33.

Nevertheless, SMMC encouraged Spectrum to consider Dr. Madigan for positions at
other hospitals or health care facilities. DSMF1 ¶ 10; PRDSMF1 ¶ 10.
On February 10, 2010, Mr. McGeachey and Dr. Lavoie met with the SMIA
physicians, including Dr. Madigan, to advise them that Spectrum would be awarded
the contract with SMMC for radiology services. DSMF2 ¶ 21; PRDSMF2 ¶ 21.
5.

Spectrum Hires Radiologists to Provide Services at SMMC

Spectrum did not consider the employment of any of the SMIA physicians,
and did not make the decision not to hire Dr. Madigan, until after it had been
awarded the contract. DSMF2 ¶ 20; PRDSMF2 ¶ 20. Dr. Madigan and the three
10

other SMIA radiologists met with Spectrum personnel for an informational meeting
on March 4, 2010. DSMF2 ¶ 22; PRDSMF2 ¶ 22. During that meeting, Spectrum
presented its business model to the doctors and explained how it intended to
provide diagnostic imaging services at SMMC. DSMF1 ¶ 11; PRDSMF1 ¶ 11.
On March 5, 2010, Dr. Madigan called Spectrum and asked Mr. Cutler how
much Spectrum would pay him, and for a copy of the employment agreement.7
DSMF1 ¶ 12; PRDSMF1 ¶ 12. Mr. Cutler told Dr. Madigan that Spectrum had not
made any hiring decisions and that there was a selection process that needed to be
followed before Spectrum could make any hiring decisions. DSMF1 ¶ 12; PRDSMF1
¶ 12. Mr. Cutler, during his interactions with Dr. Madigan, stated that he was the
person with whom Dr. Madigan would negotiate any contracts, and made it clear
that he had authority to negotiate contracts; he left it uncertain as to who would
have signing authority on behalf of Spectrum.8 PSAMF1 ¶ 59; DRPSAMF1 ¶ 59.
Mr. Cutler invited Dr. Madigan to meet with him to discuss potential
employment opportunities with Spectrum.

DSMF1 ¶ 12; PRDSMF1 ¶ 12.

Dr.

Madigan was the first radiologist to set up a meeting with Mr. Cutler and was very
interested in working for Spectrum at the time, having indicated to his partners

DSMF1 ¶ 12 also states that the reason Dr. Madigan asked for this information was “so he
could decide if he was interested in working for Spectrum.” The Plaintiff interposed a qualified
response denying that Dr. Madigan indicated this reason in the phone conversation, and stating that
Dr. Madigan was “very interested in working for Spectrum at that time” and had indicated to his
partners that he was “going to retire from” SMMC. PRDSMF1 ¶ 12. In compliance with its
obligation to view the facts in the light most favorable to Dr. Madigan, the Court has excluded this
portion of DSMF1 ¶ 12.
8
Spectrum interposed a qualified response, arguing that Mr. Cutler possessed no decisionmaking authority regarding Dr. Madigan’s potential employment with Spectrum. DRPSAMF1 ¶ 59.
In compliance with its obligation to view the facts in the light most favorable to Dr. Madigan, the
Court declines to accept Spectrum’s qualification.
7

11

that he was “going to retire from Southern Maine Medical Center.”9 While working
at SMMC was his preference, Dr. Madigan was, as a fallback, inquiring elsewhere
about job opportunities, including one in Machias, Maine, a one-way travel distance
of 218 miles from Portland.10 PSAMF1 ¶ 56; DRPSAMF1 ¶ 56. Drs. Merriam,
Tupper and Weltin also expressed an interest in seeking employment opportunities
with Spectrum following the meeting on March 4, 2010. DSMF1 ¶ 19; PRDSMF1 ¶
19.
Spectrum does not like to hire doctors who are difficult to work with,
uncooperative, inflexible, or argumentative.11 PSAMF1 ¶ 42; DRPSAMF1 ¶ 42;
PSAMF2 ¶ 34; DRPSAMF2 ¶ 34. Because of SMMC’s reports, it was unlikely that
Spectrum would add Dr. Madigan to the practice or look to add him to the
practice.12 PSAMF1 ¶ 43; DRPSAMF1 ¶ 43; PSAMF2 ¶ 35; DRPSAMF2 ¶ 35. Mr.
Cutler, before he interviewed Dr. Madigan, was told by Mr. Landry that the latter

Spectrum interposed a qualified response, arguing that Dr. Madigan “expressed an interest
in working for Spectrum only in southern Maine as a diagnostic radiologist.” DRPSAMF1 ¶ 56. The
Court finds that the Plaintiff’s statement is supported by the record citation, see DSMF2 Attach. 3,
Videotape Dep. of Stephen M. Madigan, M.D., 39:16–18, and, in compliance with its obligation to
view the facts in the light most favorable to Dr. Madigan, declines Spectrum’s attempt to qualify the
statement.
10
Spectrum interposed a qualified response, arguing that Dr. Madigan “expressed an interest
in working for Spectrum only in southern Maine as a diagnostic radiologist.” DRPSAMF1 ¶ 57.
After reviewing Dr. Madigan’s testimony, see DSMF2 Attach. 3, Videotape Dep. of Stephen M.
Madigan, M.D., 37:7–43:4, the Court has amended the statement to avoid the implication that Dr.
Madigan asked Mr. Cutler, during the March 5, 2010, phone call, about any job opportunities at
Spectrum other than the one located primarily at SMMC.
11
SMMC interposed a qualified response to PSAMF2 ¶ 34. DRPSAMF2 ¶ 34. SMMC’s
response includes additional testimony from Mr. Landry that does not contradict the Plaintiff’s
statement. In compliance with its obligation to view the facts in the light most favorable to Dr.
Madigan, the Court has included PSAMF2 ¶ 34 as written.
12
Spectrum interposed a qualified response to PSAMF1 ¶ 43, and SMMC denied PSAMF2 ¶
35. DRPSAMF1 ¶ 43; DRPSAMF2 ¶ 35. As the Plaintiff’s version of the facts is supported by the
record citation, see DRPSAMF1 Attach. 4, 30(b)(6) Dep. of Spectrum Medical Group, P.A., (David
Landry), 34:13–17, and as the Court is obligated to view the facts in the light most favorable to Dr.
Madigan, the Court has included the Plaintiff’s version.
9

12

“had had some initial discussions with the hospital regarding Dr. Madigan” that the
two would have to discuss.13 PSAMF1 ¶ 44; DRPSAMF1 ¶ 44.
On March 8, 2010, Mr. Cutler and Dr. Madigan met for approximately one
hour to discuss Dr. Madigan’s professional background and his interest in
employment opportunities with Spectrum. DSMF1 ¶ 13; PRDSMF1 ¶ 13; DSMF2 ¶
23; PRDSMF2 ¶ 23. Dr. Madigan expressed an interest in working for Spectrum in
southern Maine as a diagnostic radiologist. DSMF1 ¶ 13; PRDSMF1 ¶ 13. Dr.
Madigan did not have a subspecialty in breast imaging. DSMF1 ¶ 13; PRDSMF1 ¶
13. Dr. Madigan did not express an interest in seeking a position as a Medical
Director. DSMF1 ¶ 13; PRDSMF1 ¶ 13. During their meeting, Dr. Madigan never
provided Mr. Cutler with his resume and never disclosed his age to Mr. Cutler.
DSMF1 ¶ 13; PRDSMF1 ¶ 13. During his interview with Dr. Madigan, Mr. Cutler
stated “that sometimes with services changes hospitals like to have new faces and a
different approach.”14 PSAMF1 ¶ 58; DRPSAMF1 ¶ 58.
Following the meeting on March 8, 2010, Mr. Cutler told Mr. Landry about
his meeting with Dr. Madigan, including Dr. Madigan’s stated desire to work in

Spectrum interposed a qualified response, arguing that no one from SMMC ever told
Messers. Landry or Cutler that SMMC did not want Dr. Madigan to work there because of his age.
In compliance with its obligation to view the facts in the light most favorable to Dr. Madigan, the
Court has included PSAMF1 ¶ 44 as written.
14
Spectrum interposed a qualified response to the first sentence of PSAMF1 ¶ 58, but
Spectrum’s response does not contradict that Mr. Cutler made this statement to Dr. Madigan.
DRPSAMF1 ¶ 58. In compliance with its obligation to view the facts in the light most favorable to
Dr. Madigan, the Court rejects Spectrum’s qualifications.
Spectrum denied the second sentence of PSAMF1 ¶ 58, which stated that Dr. Madigan had
been with SMMC longer than any other current radiologist. DRPSAMF1 ¶ 58. Spectrum’s denial
contends that the Plaintiff’s record citation does not support the assertion. Id. After reviewing the
record citation, the Court finds that the record citation does not support the assertion, and has
accordingly excluded the second sentence of PSAMF1 ¶ 58.
13

13

southern Maine.15 DSMF1 ¶ 14; PRDSMF1 ¶ 14. Mr. Cutler’s recommendation
was that the interview process with Dr. Madigan continue; Mr. Cutler believed that
Dr. Madigan had a skill set that could be used at SMMC.16

PSAMF1 ¶ 45;

DRPSAMF1 ¶ 45. In a three-way meeting among Mr. Cutler, Mr. Landry, and Mr.
Clark, the Director of Operations, Mr. Landry told Mr. Cutler that SMMC did not
desire to have Dr. Madigan work there anymore.17 PSAMF1 ¶ 46; DRPSAMF1 ¶
46.
On March 18, 2010, the Southern Radiology Divisional Advisory Committee
(SRDAC) met to discuss available employment positions at SMMC, as well as
general staffing needs for the Southern Radiology Division (the Division).18 DSMF1
¶ 15; PRDSMF1 ¶ 15. During this meeting, Mr. Landry informed the SRDAC that
SMMC had expressed a desire that Dr. Madigan provide no radiology services at

The Plaintiff objected and interposed a qualified response to DSMF1 ¶ 14. The objection is
based on hearsay, though the Plaintiff does not elaborate. PRDSMF1 ¶ 14. Spectrum responds that
the objection should be deemed waived due to its lack of explanation, and that, moreover, the
statement in question is not hearsay because it is not being offered to prove the truth of the matter
asserted. DRPSAMF1 ¶ 14. Spectrum is correct. The statement is being offered as evidence of
Spectrum’s internal discussions regarding Dr. Madigan, not as evidence of Dr. Madigan’s desires.
In addition, the Plaintiff argues that although Dr. Madigan did express a preference for
southern Maine, he did not express a desire to work only in southern Maine. The Court reviewed the
record citations for DSMF1 ¶ 14 and discovered that Mr. Landry’s account of the conversation did
not include the word “only.” DSMF1 Attach. 1, Aff. of David Landry (Landry Aff.), ¶ 14. In
compliance with its obligation to view the facts in the light most favorable to Dr. Madigan, the Court
has excluded the word “only” from DSMF1 ¶ 14.
16
Spectrum interposed a qualified response, arguing that PSAMF1 ¶ 45 was unsupported by
the record citation. After reviewing Mr. Cutler’s deposition transcript, see DRPSAMF1 Attach. 5,
Dep. of: Jeffrey Cutler, 25:9–21, the Court concludes that the testimony establishes that Mr. Cutler
believed that Dr. Madigan had a skill set that could be used at SMMC, but not that Mr. Cutler made
this recommendation to Mr. Landry. The Court has amended PSAMF1 ¶ 45 accordingly.
17
Spectrum interposed a qualified response, but as Spectrum’s response does not contradict the
Plaintiff’s statement, and as the Court is obligated to view the facts in the light most favorable to the
Plaintiff, the Court has included the Plaintiff’s version.
18
The Plaintiff objected to, qualified in part, and denied in part DSMF1 ¶ 15, an eight-sentence
paragraph. PRDSMF1 ¶ 15. The Plaintiff appears to admit the first sentence of DSMF1 ¶ 15.
15

14

SMMC.19 DSMF1 ¶ 15; PRDSMF1 ¶ 15. Because of SMMC’s stated preference, the
SRDAC considered other potential employment opportunities with Spectrum.
DSMF1 ¶ 15; PRDSMF1 ¶ 15.

However, at that time, Spectrum had no other

available positions that Dr. Madigan was qualified to perform in southern Maine,
the geographic region in which he had expressed an interest.

DSMF1 ¶ 15;

PRDSMF1 ¶ 15. In addition, given the reports that Dr. Madigan was difficult to
work with, the SRDAC did not believe that Dr. Madigan would be a good addition to
the practice at Spectrum. DSMF1 ¶ 15; PRDSMF1 ¶ 15. Accordingly, based on this
information, the SRDAC made a decision not to consider Dr. Madigan for
employment opportunities with Spectrum at that time.20 DSMF1 ¶ 15; PRDSMF1 ¶
15.
Following the meeting on March 18, 2010, Mr. Landry asked Mr. Cutler to
call Dr. Madigan and tell him that Spectrum would not be considering him for
employment because SMMC had expressed its desire not to have Dr. Madigan work

The Plaintiff objects that what Mr. Landry said is hearsay. PRDSMF1 ¶ 15. The Plaintiff
does not elaborate. Spectrum responds that the objection should be deemed waived due to its lack of
explanation, and that, moreover, the statement is not hearsay because it is not being offered to prove
the truth of the matter asserted. DRPSAMF1 ¶ 15. Spectrum is correct. The statement is being
offered to prove what Mr. Landry told the SRDAC, not to prove how SMMC viewed Dr. Madigan or
what SMMC had told Mr. Landry.
The Plaintiff also contends that SMMC did not indicate a desire not to have Dr. Madigan
provide services “primarily at SMMC,” but “a desire that Dr. Madigan provide no services at
SMMC.” PRDSMF1 ¶ 15. In compliance with its obligation to view the facts in the light most
favorable to the Plaintiff, the Court has amended DSMF1 ¶ 15 accordingly.
20
The Plaintiff denied the last two sentences of DSMF1 ¶ 15, which stated that the SRDAC’s
decision had nothing to do with Dr. Madigan’s age. To support his denial, the Plaintiff noted that
Mr. Cutler made age-related comments to Dr. Madigan when informing him of Spectrum’s decision
not to hire him. In compliance with its obligation to view the facts in the light most favorable to the
Plaintiff, the Court has excluded the last two sentences of DSMF1 ¶ 15.
19

15

in the Radiology Department at SMMC.21 DSMF1 ¶ 18; PRDSMF1 ¶ 18.

Mr.

Cutler possessed no decision-making authority regarding Dr. Madigan’s potential
employment with Spectrum.22

DSMF1 ¶ 16; PRDSMF1 ¶ 16.

According to

Spectrum’s by-laws, the SRDAC has exclusive authority to hire and fire personnel
within the Division. DSMF1 ¶ 16; PRDSMF1 ¶ 16. In addition, Mr. Cutler never
spoke with Dr. Lavoie about any issue he had with Dr. Madigan. DSMF1 ¶ 16;
PRDSMF1 ¶ 16.

Mr. Cutler participated in the meetings of the SRDAC on an

intermittent basis and, if invited, would sit through the entire meeting. PSAMF1 ¶
60; DRPSAMF1 ¶ 60. Mr. Cutler remembers observing a meeting of the SRDAC
which touched upon Dr. Madigan in mid-March of 2010.

PSAMF1 ¶ 60;

DRPSAMF1 ¶ 60. However, Mr. Cutler was not present at the SRDAC meeting
where the decision was made not to consider Dr. Madigan for employment and Mr.
Cutler did not make any recommendations to the SRDAC about whether to consider
Dr. Madigan for employment with Spectrum.23 DSMF1 ¶ 17; PRDSMF1 ¶ 17.
On March 23, 2010, Dr. Madigan was informed by Mr. Cutler that Spectrum
could not hire him at SMMC, because of SMMC’s concerns that he was “old” and
“had worked there long enough and they wanted a new face.”24 PSAMF1 ¶ 47;

The Plaintiff interposed a qualified response to DSMF1 ¶ 18, but that response does not
dispute the first sentence of that paragraph. PRDSMF1 ¶ 18.
22
The Plaintiff interposed a qualified response, relating additional facts regarding Mr. Cutler’s
role but not contradicting the statements contained in DSMF1 ¶ 16. PRDSMF1 ¶ 16.
23
The Plaintiff interposed a qualified response, relating additional facts regarding Mr. Cutler’s
role but not contradicting the statements contained in DSMF1 ¶ 17. PRDSMF1 ¶ 17.
24
Spectrum objected and interposed a qualified response to this sentence. DRPSAMF1 ¶ 47.
Spectrum contends that the statement is inadmissible hearsay. Indeed, Spectrum argues that the
statement “contains hearsay, within hearsay, within hearsay” and notes that “the original declarant
is unknown.” Id. In response, Dr. Madigan argues that the statement is being offered “to establish
21

16

DRPSAMF1 ¶ 47; PSAMF2 ¶ 36; DRPSAMF2 ¶ 36; DSMF2 ¶ 24; PRDSMF2 ¶ 24.
In the same conversation, Dr. Madigan asked whether Spectrum had any other
positions available, and was told, “we need you working at the hospital most of the
time, and there are no other positions presently available in Spectrum to place you
at, so . . . at this point in time since we cannot place you at the hospital we can – we
cannot offer you a position.”25 PSAMF1 ¶ 49; DRPSAMF1 ¶ 49; PSAMF2 ¶ 38;
DRPSAMF2 ¶ 38. Spectrum had two other radiology positions open at the time, in
North Conway, New Hampshire, and Bangor, Maine. PSAMF1 ¶ 49; DRPSAMF1 ¶
49; DSMF2 ¶ 27; PRDSMF2 ¶ 27. Dr. Madigan inquired as to other openings at
Spectrum and was told “there are no other openings.”26 PSAMF1 ¶ 47; DRPSAMF1
¶ 47; PSAMF2 ¶ 36; DRPSAMF2 ¶ 36. At the close of this conversation, Mr. Cutler

Spectrum’s state of mind.” Pl.’s Evid. Resp. 1 at ¶ 47. Dr. Madigan also argues that the statement is
admissible as an admission by an authorized agent of a party opponent. Id.
Though the statement might be inadmissible hearsay if offered to prove that SMMC was
concerned about Dr. Madigan’s age, here it is being offered as evidence of Spectrum’s reasons for
declining to hire Dr. Madigan. Mr. Cutler had been asked by Spectrum’s CEO to communicate
Spectrum’s decision to Dr. Madigan. Accordingly, this statement is an opposing party’s statement
made by a person whom the party authorized to make a statement on the subject, and therefore not
hearsay under FED. R. EVID. 801(d)(2)(C).
Spectrum’s response to PSAMF1 ¶ 47 goes on to recite numerous additional facts regarding
the circumstances surrounding Spectrum’s decision not to hire Dr. Madigan. DRPSAMF1 ¶ 47. In
compliance with its obligation to view the facts in the light most favorable to Dr. Madigan, the Court
rejects this portion of Spectrum’s response as argument.
25
Spectrum interposed a qualified response, arguing that Dr. Madigan had not applied for any
other positions with Spectrum, that Dr. Madigan did not want to leave Maine and was only licensed
to practice in Maine, and that the SRDAC does not make hiring decisions for radiology positions in
the Bangor area. DRPSAMF1 ¶ 49. The Court rejects Spectrum’s response as argument.
26
Spectrum and SMMC both denied this sentence, arguing that Dr. Madigan did not apply for
any positions with Spectrum other than the one at SMMC. DRPSAMF1 ¶ 47; DRPSAMF2 ¶ 47. The
Plaintiff’s statement is supported by the record, see DSMF2 Attach. 3, Videotape Dep. of Stephen M.
Madigan, M.D. (Madigan Dep.), at 10:12–16, and the Court rejects the Defendants’ responses as nonresponsive.

17

stated, “It happens, you’re old, and it’s time for a new face.”27

PSAMF1 ¶ 48;

DRPSAMF1 ¶ 48; PSAMF2 ¶ 37; DRPSAMF2 ¶ 37.
In March and April 2010, the leadership from the Division interviewed Drs.
Merriam, Tupper, and Weltin for positions as Diagnostic Radiologists in SMMC’s
Radiology Department. DSMF1 ¶ 20; PRDSMF1 ¶ 20. Following these interviews,
the SRDAC recommended that the Division hire Drs. Merriam, Tupper, and Weltin.
DSMF1 ¶ 20; PRDSMF1 ¶ 20. In April 2010, Spectrum offered Drs. Merriam and
Weltin full-time positions and Dr. Tupper a part-time position as Diagnostic
Radiologists. DSMF1 ¶ 20; PRDSMF1 ¶ 20. Drs. Merriam, Weltin, and Tupper
began working for Spectrum on May 1, 2010. DSMF1 ¶ 20; PRDSMF1 ¶ 20.
The RFP from SMMC requested a radiologist with expertise in breast
imaging. DSMF1 ¶ 21; PRDSMF1 ¶ 21. Cameron Saber, M.D., worked for an
affiliate of Spectrum at a health care facility in Massachusetts.

DSMF1 ¶ 21;

PRDSMF1 ¶ 21. Dr. Saber is a radiologist with a sub-specialty in breast imaging,
though he was not board-certified in 2010. DSMF1 ¶ 21; PRDSMF1 ¶ 21; PSAMF1
¶ 61; DRPSAMF1 ¶ 61.

In June 2010, Spectrum offered Dr. Saber a full-time

position, contingent on his becoming board-certified, as a breast imaging specialist
in SMMC’s Radiology Department. DSMF1 ¶ 21; PRDSMF1 ¶ 21; PSAMF1 ¶ 61;

Spectrum interposed a qualified response, reciting numerous additional facts regarding the
circumstances surrounding Spectrum’s decision not to hire Dr. Madigan, and arguing that age
played no role in Spectrum’s decision-making process. DRPSAMF1 ¶ 48. In compliance with its
obligation to view the facts in the light most favorable to Dr. Madigan, the Court rejects Spectrum’s
response as argument.
27

18

DRPSAMF1 ¶ 61. Dr. Saber was placed on a partnership track. 28 PSAMF1 ¶ 64;
DRPSAMF1 ¶ 64.
Dr. Madigan is a diagnostic radiologist and does not have a sub-specialty in
breast imaging; however, his former partner at SMIA, Dr. Tupper, did have a subspecialty in mammography.29
DRPSAMF1 ¶ 62.

DSMF1 ¶ 22; PRDSMF1 ¶ 22; PSAMF1 ¶ 62;

In 2010, ninety-one percent of Spectrum’s Diagnostic

Radiologists in the Southern Radiology Division were forty years of age or older;
fifty-eight percent were in their fifties, sixties, or seventies.30

DSMF1 ¶ 23;

PRDSMF1 ¶ 23. Drs. Merriam, Weltin, and Tupper were all in their fifties when
Spectrum hired them. DSMF1 ¶ 24; PRDSMF1 ¶ 24. Dr. Weltin, who was born on
September 27, 1951, is two weeks older than Dr. Madigan, who was born on October
13, 1951, and was fifty-eight when Spectrum declined to hire him.31 DSMF1 ¶ 24;

PSAMF1 ¶ 64 also states that “Dr. Cameron Saber was ultimately offered a position to fill
the slot that was formerly filled by Dr. Madigan.” Spectrum denied this assertion, arguing that Dr.
Saber was hired as a breast imaging specialist, and that Dr. Madigan does not have a sub-specialty
in breast imaging. DRPSAMF1 ¶ 64. Dr. Madigan’s citation is to pages from Mr. Cutler’s deposition
that are not in the record, so the Court cannot verify whether the Plaintiff’s statement is supported
by the record. In the absence of supporting evidence, and given Spectrum’s contradictory response,
the Court must exclude this statement.
29
Spectrum interposed a qualified response, stating that Dr. Tupper chose to work for
Spectrum on a part-time basis. DRPSAMF1 ¶ 62. In compliance with its obligation to view the facts
in the light most favorable to the Plaintiff, the Court declines to accept Spectrum’s qualification.
30
Dr. Madigan interposed a qualified response, stating additional facts but not disputing the
statement. PRDSMF1 ¶ 23. The Court rejects Dr. Madigan’s response as non-responsive.
31
Dr. Madigan interposed a qualified response to DSMF1 ¶ 24, pointing out that Dr. Weltin is
only two weeks older than Dr. Madigan. PRDSMF1 ¶ 24. In compliance with its obligation to view
the facts in the light most favorable to Dr. Madigan, the Court has incorporated Dr. Madigan’s
qualification.
PSAMF1 ¶ 63 also stated that Spectrum “refused to hire [Dr. Madigan] at SMMC’s
direction,” citing Dr. Madigan’s MHRC Charge. Spectrum denied and objected to this assertion on
the grounds that it is speculative and conclusory. DRPSAMF1 ¶ 63. Dr. Madigan responded that
his MHRC Charge is “clearly admissible to establish both the discriminatory bias and Spectrum’s
knowledge of that bias.” Pl.’s Evid. Resp. 1 at ¶ 63. The Court is “not obligated to take at face value
[Dr. Madigan’s] subjective beliefs when they are not factually based and merely constitute
28

19

PRDSMF1 ¶ 24; PSAMF1 ¶ 63; DRPSAMF1 ¶ 63; PSAMF1 ¶ 66; DRPSAMF1 ¶ 66.
Dr. Saber was forty years old when offered a position by Spectrum in SMMC’s
Radiology Department. DSMF1 ¶ 24; PRDSMF1 ¶ 24; PSAMF1 ¶ 65; DRPSAMF1
¶ 65.
6.

Dr. Merriam’s Views

Dr. Merriam, who had worked with Dr. Madigan since 1997, found Dr.
Madigan to be collegial, friendly, and talkative, in contrast with Dr. Tupper, who
“really wasn’t interested in what the rest of us were doing during the day.”32
PSAMF1 ¶ 50; DRPSAMF1 ¶ 50; PSAMF2 ¶ 39; DRPSAMF2 ¶ 39. Dr. Merriam
felt that SMIA had a group cohesion problem but he did not blame Dr. Madigan
more than any other member of the group for this lack of cohesion, feeling that it
was a shared fault. PSAMF1 ¶ 51; DRPSAMF1 ¶ 51; PSAMF2 ¶ 40; DRPSAMF2 ¶
40.

If there were a problem with group management in November 2009,

responsibility would primarily fall upon the Radiology Chief at that time, Dr.
Tupper.33 PSAMF1 ¶ 52; DRPSAMF1 ¶ 52; PSAMF2 ¶ 41; DRPSAMF2 ¶ 41. Drs.
Merriam, Madigan, and Weltin all played well together, all showed cooperation with

conclusory, self-serving statements,” Torrech-Hernandez v. General Electric Co., 419 F.3d 41, 47 n.1
(1st Cir. 2008), and has accordingly excluded this portion of PSAMF1 ¶ 63.
32
Spectrum interposed qualified responses to PSAMF1 ¶¶ 50–53 and 55, contending that Dr.
Merriam was not surprised to hear that Spectrum did not hire Dr. Madigan. DRPSAMF2 ¶¶ 50–53
and 55. In compliance with its obligation to view the facts in the light most favorable to Dr.
Madigan, the Court rejects Spectrum’s qualified responses.
33
SMMC objected to and denied PSAMF2 ¶ 41. DRPSAMF2 ¶ 41. SMMC’s objection is as to
form, since Dr. Merriam had immediately prior to making this statement testified that he disagreed
that there was a lack of group management at the time. Id. The Court has amended the statement
to avoid the implication that Dr. Merriam believed there was a lack of group management in
November 2009. SMMC’s denial is supported by Dr. Merriam’s testimony “that there were always
group leadership problems at SMIA, including in 2007 and 2008 when Dr. Madigan was the Chief of
Radiology.” Id. In compliance with its obligation to view the facts in the light most favorable to Dr.
Madigan, the Court rejects SMMC’s denial.

20

each other, and all showed teamwork, in contrast with Dr. Tupper, who did not play
well with Drs. Merriam and Weltin.34 PSAMF1 ¶ 53; DRPSAMF1 ¶ 53; PSAMF2 ¶
42; DRPSAMF2 ¶ 42.

A service called Avatar rates radiology departments

nationwide and always gave SMIA five stars, its highest rating.35 PSAMF1 ¶ 54;
DRPSAMF1 ¶ 54; PSAMF2 ¶ 43; DRPSAMF2 ¶ 43. Dr. Merriam did not find Dr.
Madigan to be uncooperative or inflexible or argumentative or difficult to work
with.

PSAMF1 ¶ 55; DRPSAMF1 ¶ 55; PSAMF2 ¶ 44; DRPSAMF2 ¶ 44.

In

contrast, he found him to be a “pretty genial guy.” PSAMF1 ¶ 55; DRPSAMF1 ¶ 55;
PSAMF2 ¶ 44; DRPSAMF2 ¶ 44.
7.

The Agreement Between Spectrum and SMMC36

On May 1, 2010, Spectrum entered into an Agreement with SMMC to provide
radiology services at SMMC.

DSMF1 ¶ 26; PRDSMF1 ¶ 26.

The Agreement

requires Spectrum to designate a Medical Director of Radiology and an Assistant
Medical Director of Radiology, and to assign at least two qualified radiologists to
provide on-site coverage at SMMC between 8:00 a.m. and 5:00 p.m., Monday
SMMC interposed a qualified response, pointing out that, in the cited testimony, Dr.
Merriam states that Dr. Tupper did not play well with Drs. Merriam and Weltin, without reference
to Dr. Madigan. DRPSAMF2 ¶ 42. The Court has amended the Plaintiff’s statement accordingly.
35
Spectrum and SMMC both interposed qualified responses, pointing out that Dr. Merriam did
not know whether Avatar had always given his group a five-star rating. DRPSAMF1 ¶ 54;
DRPSAMF2 ¶ 43. In compliance with its obligation to view the facts in the light most favorable to
Dr. Madigan, the Court has included the Plaintiff’s version.
36
PSAMF1 ¶ 67, a nineteen-sentence long paragraph, contains numerous facts regarding the
relationship between SMMC and SMIA. Spectrum objected to PSAMF1 ¶ 67 on the grounds that
these statements are not relevant or material to this matter and that the paragraph is speculative
and lacks proper foundation. DRPSAMF1 ¶ 67. Dr. Madigan responds that “the prior course of
dealings between SMMC and its earlier radiology provider, SMIA, helps inform the fact-finder as to
what the likely future course of dealings would be between SMMC and Spectrum.” Pl.’s Evid. Resp.
1 at ¶ 67. The Plaintiff, however, has provided no reason for assuming that SMMC’s agreement with
Spectrum would likely mirror SMMC’s agreement with SMIA. The Court concludes that the facts
contained in PSAMF1 ¶ 67 are not admissible to prove the contents of SMMC’s agreement with
Spectrum.
34

21

through Friday.

DSMF1 ¶ 26; PRDSMF1 ¶ 26.

The Agreement also requires

Spectrum to provide or arrange for nighttime coverage through Nighthawk
Radiology Services, LLC. DSMF1 ¶ 26; PRDSMF1 ¶ 26.
Although, under the terms of the Agreement, SMMC has the right to approve
the individuals designated by Spectrum to serve as Medical Director and Assistant
Medical Director, SMMC does not have any right under the Agreement to identify
or veto the physicians that Spectrum assigns to SMMC to provide clinical radiology
services, assuming that those physicians are members in good standing of the
SMMC medical staff, with full clinical privileges, that they comply at all times with
SMMC’s by-laws, rules, and regulations, and that they adhere to all applicable
institutional policies and procedures.37 DSMF1 ¶ 27; PRDSMF1 ¶ 27.
The Agreement requires Spectrum to assign two radiologists to work at
SMMC each weekday. DSMF1 ¶ 28; PRDSMF1 ¶ 28. However, Spectrum assigns
four radiologists each weekday and has a total of thirty-six radiologists who are
credentialed to work at SMMC.

DSMF1 ¶ 28; PRDSMF1 ¶ 28.

All of the

radiologists Spectrum assigns to work at SMMC also work at other hospitals and
healthcare facilities in southern Maine. DSMF1 ¶ 28; PRDSMF1 ¶ 28.

The Plaintiff denied the statement as originally drafted, see DSMF1 ¶ 27, arguing that every
radiologist assigned by Spectrum to work at SMMC must be a member in good standing of the
SMMC medical staff, with full clinical privileges, must comply at all times with the requirements of
SMMC’s by-laws, rules, and regulations, and must adhere to all applicable institutional policies and
procedures of SMMC. PRDSMF1 ¶ 27. The Plaintiff also contends that Spectrum made it clear in
negotiations that Dr. Madigan could not be hired by Spectrum to work at SMMC. Id. The latter
argument is non-responsive, since the statement discusses only the terms of the Agreement.
However, in compliance with its obligation to view the facts in the light most favorable to the
Plaintiff, the Court has incorporated the Plaintiff’s qualifications relating to SMMC’s rights under
the agreement.
37

22

Spectrum prepares its schedules one year in advance and provides those
schedules to SMMC so that SMMC is aware of who will be working at the hospital
on any given day.38 DSMF1 ¶ 29; PRDSMF1 ¶ 29. SMMC compensates Spectrum
for the work of the Medical Director, but makes no payment to Spectrum based on
either the number of radiologists it assigns to SMMC or the number of hours those
radiologists work.39 DSMF1 ¶ 30; PRDSMF1 ¶ 30. Spectrum bills the patients or
insurers directly for the professional services provided by its radiologists. DSMF1 ¶
30; PRDSMF1 ¶ 30. Spectrum determines where its radiologists will be assigned to
work, how many hours a week they will work, whether they will be on call, how
many weeks of vacation they are eligible to take, what benefits they will receive,
and how they will be compensated.40 DSMF1 ¶ 31; PRDSMF1 ¶ 31.
SMMC, in its relationship with Spectrum, continues to have significant
control over the work environment for the radiologists from Spectrum who work at

DSMF1 ¶ 29 also states that “SMMC has no control over (or input into) which radiologists
will be working at the hospital.” DSMF1 ¶ 29. The Plaintiff interposed a qualified response that
disputes this portion of DSMF1 ¶ 29, citing conditions from the Agreement between SMMC and
Spectrum, and arguing that SMMC made it clear that Dr. Madigan could not be hired by Spectrum
to work at SMMC. PRDSMF1 ¶ 29. In compliance with its obligation to view the facts in the light
most favorable to Dr. Madigan, the Court has excluded this portion of DSMF1 ¶ 29.
39
The Plaintiff interposed a qualified response to DSMF1 ¶ 30. PRDSMF1 ¶ 30. However, as
the Plaintiff’s response does not appear to contradict any of the information contained in DSMF1 ¶
30, the Court rejects the Plaintiff’s response as non-responsive.
40
The Plaintiff denied DSMF1 ¶ 31. PRDSMF1 ¶ 31. DSMF1 ¶ 31 contains the broad
assertions that Spectrum “sets the terms and conditions of employment for the radiologists who
provide services at SMMC” and that “SMMC has no control over and provides no input into” those
terms and conditions. In his response, the Plaintiff provides examples of ways in which SMMC
controls certain working conditions for the radiologists that work there. PRDSMF1 ¶ 31.
Accordingly, in compliance with its obligation to view the facts in the light most favorable to the
Plaintiff, the Court has excluded the portions of DSMF1 ¶ 31 that are contradicted by the Plaintiff’s
response. However, the Plaintiff does not appear to dispute that Spectrum “determines where [its]
radiologists will be assigned to work, how many hours a week they will work, whether or not they
will be on call, how many weeks of vacation they are eligible to take, what benefits [they] will
receive, and how they will be compensated.” DSMF1 ¶ 31; PRDSMF1 ¶ 31.
38

23

SMMC.41 PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. SMMC, in its current contract with
Spectrum, is required, at its expense, to provide Spectrum’s radiologists with
facilities, equipment, supplies, and support personnel necessary for them to perform
their services.42 PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. SMMC reserves the right to
determine what facilities, equipment, supplies, and support personnel are necessary
for those radiologists.

PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.

All of the support

personnel supplied to Spectrum’s radiologists are employees of SMMC under
SMMC’s exclusive control. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. Spectrum is required
to provide proof of professional liability insurance to SMMC in minimum limits
established by SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. Spectrum must provide
SMMC with written notice of the cancellation, expiration, or non-renewal of such
insurance. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
Any physician working for Spectrum at SMMC must be a member of the
medical staff and credentialed by both the medical staff and the Board of Directors
of SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. Spectrum is required to provide two
qualified radiologists on site between 8:00 a.m. and 5:00 p.m., Monday through
Friday. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. A Spectrum radiologist must interpret,
Spectrum denied and objected to this sentence as speculative and conclusory, arguing that
the non-moving party is entitled only to reasonable inferences that may be drawn from competent
evidence, supported by appropriate record citations. DRPSAMF1 ¶ 68. Dr. Madigan responds that
this sentence “is offered to explain the following sentences and is a reasonable conclusion based upon
every succeeding sentence in paragraph 68.” Pl.’s Evid. Resp. 1 at ¶ 68. The Court concludes that
this sentence is admissible as a reasonable summary of the competent evidence that follows.
42
Spectrum interposed a qualified response to this sentence and to the rest of PSAMF1 ¶ 68,
arguing that the Agreement “speaks for itself, so the document, rather than Plaintiff’s
characterization of what the document states, should be relied upon.” DRPSAMF1 ¶ 68. Spectrum
does not contend, however, that the Plaintiff’s statement of facts is unsupported by the contents of
the Agreement. Accordingly, in compliance with its obligation to view the facts in the light most
favorable to the Plaintiff, the Court rejects Spectrum’s response.
41

24

dictate, and sign a radiology report within twenty-four hours after the imaging is
completed, and must immediately handle all emergency interpretations. PSAMF1 ¶
68; DRPSAMF1 ¶ 68.

Spectrum must assure that, during its on-site coverage

hours, telephone and in-person consultation by the radiologist is readily available to
physicians, residents, interns, and medical students. PSAMF1 ¶ 68; DRPSAMF1 ¶
68. Spectrum, after hours, may use only Nighthawk Radiology Services, LLC, must
review and sign the report prepared by Nighthawk within twenty-four hours of the
preliminary interpretation, and cannot utilize any other after-hour coverage entity
without the prior approval of SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. The work
stations SMMC provides may be used solely for the reading of SMMC imaging
studies. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. The radiologist at Spectrum who serves
as Medical Director must be approved by SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
Spectrum agrees that it will, as necessary, reassign any claims for payment
to SMMC, with SMMC having final authority to determine the professional fee for
said reassigned claims and having the right to audit Spectrum’s documentation and
records necessary to support such reassignments. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
Spectrum agrees to timely provide any and all attestations needed by SMMC to
satisfy its Medicare documentation requirements. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
The individual approved by SMMC to serve as Medical Director may be terminated
by SMMC and SMMC “in its sole discretion” may either approve a substitute
physician or terminate the Medical Director services required of Spectrum.
PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. All charts created by Spectrum are the property

25

of SMMC and Spectrum may not remove original records or charts from the
hospital. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. Spectrum’s radiologists are required to
complete medical records in a timely manner and its physicians are required to
abide by all applicable institutional policies of SMMC, including its code of ethical
conduct. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68. Every radiologist assigned by Spectrum
to work at SMMC must be a member in good standing of the SMMC medical staff,
with full clinical privileges, must comply at all times with the requirements of
SMMC’s by-laws, rules, and regulations, and must adhere to all applicable
institutional policies and procedures of SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
Should any physician assigned to SMMC fail to meet these requirements, Spectrum
must immediately notify SMMC. PSAMF1 ¶ 68; DRPSAMF1 ¶ 68.
Spectrum has no authority or control over the terms and conditions of
employment for SMMC’s employees; nor does Spectrum know how SMMC’s
employees are compensated.

DSMF1 ¶ 32; PRDSMF1 ¶ 32.

Spectrum has no

involvement in or control over the operations of SMMC. DSMF1 ¶ 32; PRDSMF1 ¶
32.
8.

Spectrum’s Workforce and Management

During 2009, Spectrum had 77 employees and 103 physician shareholders.
DSMF1 ¶ 33; PRDSMF1 ¶ 33. During 2010, Spectrum had 71 employees and 102
physician shareholders. DSMF1 ¶ 33; PRDSMF1 ¶ 33.
Spectrum is owned and directed by its shareholder physicians who each have
a substantial ownership stake in Spectrum.

DSMF1 ¶ 34; PRDSMF1 ¶ 34.

Spectrum’s shareholder physicians possess significant control in the operations of
26

the business, and have a stake in the profits and losses of Spectrum. DSMF1 ¶ 34;
PRDSMF1 ¶ 34. Each physician shareholder participates in annual, regular, and
special shareholder meetings, and is entitled to vote on some of Spectrum’s
decisions.43 DSMF1 ¶ 34; PRDSMF1 ¶ 34. The compensation of the shareholder
physicians is directly tied to the profits or losses of Spectrum, though the bulk of
shareholder compensation is paid as wages. DSMF1 ¶ 34; PRDSMF1 ¶ 34.
A shareholder of Spectrum may sell his shares only to the corporation.
PSAMF1 ¶ 69; DRPSAMF1 ¶ 69. The price for a share is $1,000. PSAMF1 ¶ 69;
DRPSAMF1 ¶ 69.
No individual shareholder physician can terminate the employment of
another shareholder physician. DSMF1 ¶ 35; PRDSMF1 ¶ 35. The SRDAC has
exclusive authority to fire personnel within the division.44
DRPSAMF1 ¶ 69.

PSAMF1 ¶ 69;

Shareholder physicians can be terminated only under the

following conditions: (i) the Divisional Committee recommends to the Board of

The Plaintiff interposed a qualified response to DSMF1 ¶ 34. PRDSMF1 ¶ 34. DSMF1 ¶ 34
contains four sentences and at least that many different assertions; the Plaintiff disputes only two of
these: the portion of compensation tied to profits, and the role of shareholder physicians in
Spectrum’s decision-making process. PRDSMF1 ¶ 34. In compliance with its obligation to view the
facts in the light most favorable to Dr. Madigan, the Court has amended DSMF1 ¶ 34 to incorporate
Dr. Madigan’s qualifications.
The Plaintiff asserts in PSAMF1 ¶ 69 that, “[a]lthough shareholders vote for the
appointment of two advisory committees for the northern and southern divisions, as well as the
Board of the company, actual day-to-day operation of hiring decisions are made by the advisory
committee.” Spectrum denies that this sentence is supported by the record citation. DRPSAMF1 ¶
69. Although both the sentence in PSAMF1 ¶ 69 and the record citation are vague and ambiguous,
the record citation does not refer to “day-to-day operation of hiring decisions.” PSAMF1 ¶ 69. If the
Plaintiff means by this sentence that the SRDAC has authority over hiring and firing decisions, the
Court has included that fact elsewhere in its recitation of the facts.
44
Spectrum interposed a qualified response to this sentence, noting that the record citation is
preceded and qualified by the phrase, “according to Spectrum’s by-laws.” DRPSAMF1 ¶ 69. In
compliance with its obligation to view the facts in the light most favorable to the Plaintiff, the Court
declines to accept Spectrum’s qualification.
43

27

Directors of Spectrum (or the Board of Directors recommends on its own) that the
shareholder physician be terminated; (ii) the Board of Directors approves
termination by an affirmative vote of at least two-thirds of the Directors then
serving; and (iii) the termination is approved by an affirmative vote of at least twothirds of the shareholder physicians serving in the applicable Division.45 DSMF1 ¶
35; PRDSMF1 ¶ 35; PSAMF1 ¶ 69; DRPSAMF1 ¶ 69.
9.

Spectrum and Discrimination

Spectrum has an established policy that prohibits discrimination on the basis
of age.46 DSMF1 ¶ 36; PRDSMF1 ¶ 36. Spectrum distributes copies of its antidiscrimination policy to all of its shareholders and employees.

DSMF1 ¶ 36;

PRDSMF1 ¶ 36. Spectrum provides regular training to all of its shareholders and
employees regarding the anti-discrimination policy. DSMF1 ¶ 36; PRDSMF1 ¶ 36.
With the exception of Dr. Madigan’s claim, Spectrum has not received a complaint
of discrimination from an employee in Maine during the past five years or more.
DSMF1 ¶ 36; PRDSMF1 ¶ 36.
II.

THE PARTIES’ POSITIONS
A.

Count I: Age Discrimination
1.

Spectrum’s Motion

The Plaintiff interposed a qualified response to DSMF1 ¶ 35, and included an additional
material fact, stating that a Division has never not affirmed the Board’s decision to terminate a
shareholder physician. PRDSMF1 ¶ 35; PSAMF1 ¶ 69. However, the Plaintiff cites page fifty-eight
of Mr. Landry’s deposition transcript, a page which is not in the record. Spectrum denies the
statement. DRPSAMF1 ¶ 69. As the Court cannot verify that the Plaintiff’s statement is supported
by the record, it must exclude the Plaintiff’s statement.
46
The Plaintiff interposed a qualified response to DSMF1 ¶ 36, rehearsing the events that gave
rise to this lawsuit. PRDSMF1 ¶ 36. The Court rejects the Plaintiff’s response as non-responsive,
since it does not contradict any of the specific facts set forth in DSMF1 ¶ 36.
45

28

Spectrum first argues that Dr. Madigan cannot establish a prima facie case of
age discrimination. Spectrum’s Mot. at 8–9. Next, Spectrum contends that age
played no part in Spectrum’s decision not to consider Dr. Madigan for employment;
indeed, that it did not know Dr. Madigan’s age. Id. at 9–11. Spectrum argues that,
because it acted without knowledge of Dr. Madigan’s protected status, it is entitled
to judgment as a matter of law. Id. at 10–11. Spectrum then argues that Spectrum
has articulated a legitimate, nondiscriminatory reason for not considering Dr.
Madigan for employment, and insists that that reason was not a pretext for age
discrimination. Id. at 11–12. Spectrum asserts that Dr. Madigan cannot establish
direct evidence of age discrimination, since Mr. Cutler possessed no decisionmaking authority regarding Dr. Madigan’s potential employment with Spectrum.
Id. at 12–13.
Spectrum contends that it is not a joint employer with respect to SMMC, and
that, even if it were, Spectrum would not be liable for any alleged wrongdoing by
SMMC. Id. at 14–15. Spectrum argues that it employs fewer than one hundred
employees for purposes of the ADEA and MHRA. Id. at 15–17. Finally, Spectrum
argues that it should not be held liable for punitive damages under either the ADEA
or the MHRA. Id. at 17–20.
2.

The Plaintiff’s Opposition

The Plaintiff begins by arguing that Dr. Madigan has established a prima
facie case of age discrimination. Pl.’s Opp’n 1 at 7. The Plaintiff then argues that
Mr. Cutler’s comments amount to “smoking gun evidence” of age discrimination,

29

and argues that SMMC’s discriminatory animus should be attributed to Spectrum.
Id. at 9–11.

Next, the Plaintiff argues that Spectrum is a joint employer with

respect to SMMC. Id. at 11–14. The Plaintiff argues that Spectrum employs more
than one hundred employees, though claims that this argument “is better made
post-verdict and need not be made now.” Id. at 14–16. Finally, the Plaintiff argues
that Spectrum is liable for punitive damages. Id. at 16–17.
3.

Spectrum’s Reply

Spectrum notes that, on a motion for summary judgment, the non-moving
party is entitled only to reasonable inferences that may be drawn from competent
evidence, supported by appropriate record citations.

Spectrum’s Reply at 1.

Spectrum then returns to the joint employer issue, arguing that the Agreement
between Spectrum and SMMC is irrelevant to this issue, since it was entered into
nearly two months after Spectrum notified Dr. Madigan that it would not consider
him for employment. Id. at 2–4. Next, Spectrum argues that Dr. Madigan cannot
establish a prima facie case of age discrimination because Dr. Saber had a different
skill set, and was not hired to replace Dr. Madigan. Id. at 4–5. Spectrum contends
that Dr. Madigan’s argument that Spectrum discriminated against him by failing to
offer him positions in Bangor, Maine or North Conway, New Hampshire, has been
waived because he first raised it in his Opposition. Id. at 5. Spectrum returns to
the issue of Mr. Cutler’s statements, and argues that they do not constitute direct
evidence of discrimination because Mr. Cutler was not a decision-maker. Id. at 6–8.
Spectrum again argues that it employs fewer than one hundred employees for

30

purposes of the MHRA. Id. at 8–10. Finally, Spectrum insists that it has acted in
good faith, and cannot be held liable for punitive damages. Id. at 10.
B.

Count II: Tortious Interference
1.

SMMC’s Motion

SMMC begins by setting forth the elements of tortious intereference with a
prospective economic advantage under Maine caselaw. SMMC’s Mot. at 5. SMMC
then asserts that Dr. Madigan’s claim fails because he must, but cannot, prove
either fraud or intimidation. Id.
As for fraud, SMMC argues that there is no support in the record for Dr.
Madigan’s allegation that SMMC falsely told Spectrum that Dr. Madigan had failed
to provide leadership to his group. Id. at 7. SMMC argues that, even if there were
support for this allegation, Spectrum did not base its decision on that
representation. Id.
SMMC turns to whether SMMC intimidated Spectrum into not hiring Dr.
Madigan, arguing that there is no evidence that Dr. Lavoie conditioned Spectrum’s
prospects for obtaining the contract for radiological services on a refusal to hire Dr.
Madigan.

Id. at 8–13.

SMMC points out that, while it was not necessarily

comfortable having Dr. Madigan work primarily at SMMC, it had no objection to his
being hired by Spectrum for another location. Id. at 13–14.
2.

The Plaintiff’s Opposition

Dr. Madigan argues that there is a jury issue of fraud because SMMC’s
claims that Dr. Madigan was inflexible, argumentative, uncooperative, and difficult

31

to work with, “had no basis in reality,” and are contradicted by Dr. Merriam’s
testimony. Pl.’s Opp’n at 4–5. Dr. Madigan argues that Spectrum’s decision not to
hire Dr. Madigan was based on SMMC’s negative reports. Id. at 5–6.
Dr. Madigan argues that there is a jury issue of intimidation because SMMC
“made it clear to Spectrum that an implicit quid pro quo for its receiving the
contract was that it not bring Dr. Madigan on board to work at the hospital,” and
this amounts to intimidation under Currie v. Industrial Security Inc., 915 A.2d 400
(Me. 2007). Id. at 6–8.
3.

SMMC’s Reply

SMMC argues that Dr. Madigan cannot prove that Spectrum relied on
SMMC’s allegedly false statements, and that without reliance there is no fraud.
SMMC’s Reply at 4. SMMC insists that Spectrum, in making its decision not to
employ Dr. Madigan to work at SMMC, relied upon “the true statement that SMMC
did not want Dr. Madigan working primarily at SMMC.”

Id. at 5.

Moreover,

SMMC contends that Spectrum did not consider Dr. Madigan for other locations not
because of SMMC’s statements, but because “Dr. Madigan gave Mr. Cutler the
impression that he was interested only in positions located in the Greater Portland
area, preferably at SMMC.” Id. at 5–7.
SMMC argues that there could not have been any intimidation as a matter of
law because Spectrum “did not even begin to consider any employment hires until
after it had already secured SMMC’s radiology contract.”

32

Id. at 3.

SMMC

emphasizes that it had no objection to Spectrum’s hiring Dr. Madigan for a different
location. Id.
III.

DISCUSSION
A.

Summary Judgment

The Court “shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”

FED. R. CIV. P. 56(a).

For summary judgment purposes,

“genuine” means that “a reasonable jury could resolve the point in favor of the
nonmoving party,” and a “material fact” is one whose “existence or nonexistence has
the potential to change the outcome of the case.” Tropigas de Puerto Rico, Inc. v.
Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (citations
omitted).
“The party moving for summary judgment must demonstrate an absence of
evidence to support the nonmoving party’s case.” Phair v. New Page Corp., 708 F.
Supp. 2d 57, 61 (D. Me. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).

“In determining whether this burden is met, the Court must view the

record in the light most favorable to the nonmoving party and give that party the
benefit of all reasonable inferences in its favor.” Phair, 708 F. Supp. 2d at 61 (citing
Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004)). However, the Court is not
“required to ‘accept as true or to deem as a disputed material fact, each and every
unsupported, subjective, conclusory, or imaginative statement’ made by a party.”
Bonefant-Igaravidez v. International Shipping Corp., 659 F.3d 120, 123 (1st Cir.

33

2011) (quoting Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir. 2008)).
“Even in cases where elusive concepts such as motive or intent are at issue,
summary judgment may be appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and unsupported speculation.”
Medina-Munoz, 896 F.2d at 8; see also Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir.
2007).
B.

Count I: Age Discrimination

Spectrum moves for summary judgment on Dr. Madigan’s ADEA and MHRA
claims against it. As Maine Courts generally apply the MHRA in accordance with
federal anti-discrimination law, the Court’s analysis pertains to both the ADEA and
the MHRA claims. See Phair v. New Page Corp., 708 F. Supp. 2d 57, 63 (D. Me.
2010); see also Helwig v. Intercoast Career Inst., No. CV-09-225, 2012 Me. Super.
LEXIS 29, *8–9 (Me. Super. Feb. 9, 2012).
1.

The Legal Framework

The ADEA makes it unlawful for an employer “to fail or refuse to hire . . . any
individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). ADEA
plaintiffs must “establish that age was the ‘but-for’ cause of the employer’s adverse
action.”

Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009)

(quoting Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177 (2009)).

The

MHRA provides that it is unlawful employment discrimination “[f]or any employer
to fail or refuse to hire or otherwise discriminate against any applicant for
employment because of . . . age . . . .” 5 M.R.S.A. § 4572(1)(A).

34

2.

Dr. Madigan’s Direct Evidence of Discrimination

Dr. Madigan’s claim of age discrimination is unusually strong because—
unlike many discrimination claims—he says that Spectrum came out and told him
that they were not hiring him because of his age. To place Spectrum’s comment in
context, in June 2009, Dr. Lavoie told Dr. Madigan, “You’re old and your group is
getting older.” Then, when Spectrum through Mr. Cutler informed Dr. Madigan
why it would not hire him to work at SMMC, Mr. Cutler expressly told him that it
was because SMMC was concerned that he was “old” and that he “had worked there
long enough and they wanted a new face.”

As if these statements were not

sufficiently clear, Mr. Cutler closed the conversation by saying, “It happens, you’re
old, and it’s time for a new face.” Typically, statements from a prospective employer
that are this direct would be sufficient to command a jury trial.
The unusual wrinkle in this case is that Dr. Madigan has conceded for
purposes of the motion for summary judgment that Mr. Cutler was not a decisionmaker. Pl.’s Opp’n at 10 (“Nor does it help that Mr. Cutler was not allegedly a
decision-maker. . . . Indeed, it is clear that the ultimate discriminatory animus here
is that of SMMC”) (emphasis in Plaintiff’s Opposition).

Relying principally on

Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 35 (1st Cir. 2001),
Spectrum observes that direct evidence “generally contemplates only those
‘statements by a decision-maker that directly reflect the alleged animus and bear
squarely on the contested employment decision,’” and it asserts that Mr. Cutler’s
statements are not direct evidence because Mr. Cutler was not a decision-maker.

35

Spectrum thus seeks to distance itself from the statements of its Director of Human
Resources.
However, for summary judgment purposes, even assuming Mr. Cutler was
not a decision-maker, whether his statements accurately reflected the reasons for
Spectrum’s decision remains a genuine issue of material fact that must be resolved
by a fact finder. After all, although it is apparently undisputed that Mr. Cutler
lacked the authority to decide whether to hire Dr. Madigan, Mr. Cutler was not a
mere functionary; he was Spectrum’s Director of Human Resources and chosen
point of contact with Dr. Madigan. Given his role, a reasonable fact-finder could
conclude both that Mr. Cutler knew of Spectrum’s age-based reasons for failing to
hire Dr. Madigan and that he was speaking for Spectrum when he communicated
those reasons to Dr. Madigan. To accept Spectrum’s narrow view of the facts—that
Mr. Cutler was not only not a Spectrum decision-maker but was also not speaking
for the Spectrum decision-maker—would require the Court to view the record in the
light most favorable to Spectrum, not in the light most favorable to Dr. Madigan.
Nor does Melendez-Arroyo command a different result.

First, Spectrum’s

argument misplaces the emphasis in the quotation from Melendez-Arroyo. What
mattered in Melendez-Arroyo was not who made the statements, but whether the
statements “directly reflect the alleged animus and bear squarely on the contested
employment decision.”

In Melendez-Arroyo, the statements were made by a

decision-maker, but the Court observed that they were arguably not direct evidence
of age discrimination because the man who made them “did not admit to being

36

motivated by [the plaintiff’s] age or even refer to it in the meeting [to discuss her
demotion].”47 Melendez-Arroyo, 273 F.3d at 34. Here, Mr. Cutler’s statements were
made during a meeting with Dr. Madigan to inform him that Spectrum was no
longer considering him for employment. Unlike the statements in Melendez-Arroyo,
Mr. Cutler’s statements bear squarely on the contested employment decision.
Second, Melendez-Arroyo’s definition of “direct evidence” was devised as a test
for whether the plaintiff was entitled to a mixed-motive instruction. See Febres v.
Challenger Caribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000). Here, the issue is not
whether a mixed-motive instruction is appropriate48 but whether a reasonable factfinder could conclude, based on Dr. Madigan’s evidence, that Spectrum failed to hire
Dr. Madigan because of his age. In answering that question, the Court may look to
“any combination of evidence strong enough to permit the jury to infer
discrimination.” Melendez-Arroyo, 273 F.3d at 36. Given their context, and the fact
that they corroborate the statements allegedly made by Dr. Lavoie, Mr. Cutler’s
statements would support such an inference.
3.

Joint Employers

Finally, Spectrum’s argument that it is not a joint employer with SMMC is
beside the point because Spectrum itself, not SMMC, was the potential employer.
Whether SMMC could be considered a joint employer with Spectrum is of no

Nevertheless, the First Circuit vacated the district court’s summary judgment in favor of the
employer and remanded the matter to district court, making Melendez-Arroyo hardly convincing
precedent for granting Spectrum’s motion. See Melendez-Arroyo, 273 F.3d at 35 (“Melendez’s
evidence . . . itself creates a factual issue for trial”).
48
The Supreme Court held in 2009 that a mixed-motive instruction is never appropriate in an
ADEA case. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 170 (2009).
47

37

moment in Dr. Madigan’s direct claim against Spectrum.

See Torres-Negron v.

Merck & Co., Inc., 488 F.3d 34, 41 n.6 (1st Cir. 2007) (“a finding that two companies
are an employee’s ‘joint employers’ only affects each employer’s liability to the
employee for their own actions, not for each other’s actions”).
4.

Damages

In its Motion for Summary Judgment, Spectrum argues that it employed
fewer than one hundred employees for purposes of the ADEA and MHRA, and that
it cannot be held liable for punitive damages under either the ADEA or the MHRA.
a.

The ADEA

Spectrum’s argument that it cannot be held liable for punitive damages
under the ADEA is inapposite: Dr. Madigan did not seek punitive damages under
the ADEA in his Complaint, see Am. Compl. at ¶¶ 22–23 (seeking punitive damages
under the MHRA and liquidated damages under the ADEA).
b.

The MHRA
i.

Punitive Damages

The MHRA allows for the recovery of punitive damages “if the complaining
party demonstrates that the respondent engaged in a discriminatory practice . . .
with malice or reckless indifference to the rights of an aggrieved individual
protected by this Act.” 5 M.R.S.A. § 4613(2)(B)(8)(c).

The plaintiff must prove

malice or reckless indifference by “clear and convincing evidence.” Batchelder v.
Realty Resources Hospitality, LLC, 914 A.2d 1116, 1124.

38

Spectrum contends that Dr. Madigan cannot prove with clear and convincing
evidence that Spectrum acted with malice or reckless indifference to his rights. See
Spectrum’s Mot. at 18–19. Spectrum also urges the affirmative defense of good
faith, relying heavily on the Supreme Court’s opinion in Kolstad v. American Dental
Ass’n, 527 U.S. 526 (1999). See Spectrum’s Mot. at 19–20.
Whether Spectrum acted with malice or reckless indifference to Dr.
Madigan’s rights is a question of fact. Spectrum may, at trial, rebut Dr. Madigan’s
evidence with evidence that it acted in good faith. But, viewing the evidence in the
light most favorable to Dr. Madigan, the Court cannot conclude at this stage that
Spectrum did not act with malice or reckless indifference.
ii.

Cap on Punitive Damages

The sum of compensatory and punitive damages awarded under the MHRA
may not exceed $50,000 if the defendant has more than 14 and fewer than 101
employees; the sum may not exceed $100,000 if the defendant has more than 100
and fewer than 201 employees. 5 M.R.S.A. § 4613(2)(B)(8)(e)(i)–(ii).
Spectrum contends that its 102 shareholder physicians are proprietors rather
than employees for purposes of the MHRA. See Spectrum’s Mot. at 15. In deciding
whether to count four shareholder physicians as “employees” under the Americans
with Disabilities Act of 1990 (ADA), the Supreme Court looked to six factors:
Whether the organization can hire or fire the individual or set the
rules and regulations of the individual’s work
Whether and, if so, to what extent the organization supervises the
individual’s work

39

Whether the individual reports to someone higher in the organization
Whether and, if so, to what extent the individual is able to influence
the organization
Whether the parties intended that the individual be an employee, as
expressed in written agreements or contracts
Whether the individual shares in the profits, losses, and liabilities of
the organization.
Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 449–50 (2003).
The Court added that “the answer to whether a shareholder-director is an employee
depends on all of the incidents of the relationship . . . with no one factor being
decisive.” Id. at 451.
Dr. Madigan appears to concede that members of Spectrum’s Advisory
Committees and Board would fall outside Clackamas’s definition of employee, see
Pl.’s Opp’n 1 at 15. The record does not reveal how many shareholder physicians
serve on Spectrum’s Advisory Committees and Board. During 2009, Spectrum had
a total of 77 employees and 103 shareholder physicians, meaning that 24 of its
shareholder physicians would have to be counted as employees to subject it to the
higher damages cap. During 2010, Spectrum had a total of 71 employees and 102
shareholder physicians, meaning that 30 of its shareholder physicians would have
to be counted as employees to subject it to the higher damages cap.
The Court declines to make a final determination as to the exact number of
Spectrum employees for purposes of determining the amount of the statutory cap
under Maine law. First, Dr. Madigan has not yet obtained a damages award that

40

would make this Court’s ruling necessary and the Court declines to issue an
advisory ruling. Second, the parties have provided information about some, but not
all of the six Clackamas factors. There is no evidence as to the extent to which
Spectrum “supervises the individual’s work,” whether shareholder physicians
“report[ ] to someone higher in the organization,” and whether Spectrum enters into
written agreements or contracts with shareholder physicians that confirm the
parties’ intent to treat shareholder physicians as employees. Clackamas, 538 U.S.
at 449–50.

There is some evidence as to the extent to which an individual

shareholder physician “is able to influence the organization,” but the evidence is
indirect, such as the right to participate in shareholder meetings. Id. at 450. The
record reveals that the shareholder physicians’ compensation is “directly tied to the
profits or losses of Spectrum,” DSMF1 ¶ 34; PRDSMF1 ¶ 34, but there is no specific
information about the extent to which shareholder physicians “share[ ] in the
profits, losses, and liabilities of the organization.” Clackamas, 538 U.S. at 450.
Moreover, in Clackamas, the Supreme Court observed that the answer to this
question “cannot be decided in every case by a shorthand formula or magic phrase,”
id. at 450 n.10 (internal punctuation omitted), and after observing that there were
some facts in the record that weighed in favor and some against employee status,
rather than rule on the issue as a matter of law, the Supreme Court remanded the
matter for further proceedings. Id. at 451.

41

Given the spotty state of the record, the Court cannot rule that Spectrum’s
shareholder physicians are or are not employees within the meaning of 5 M.R.S.A. §
4613. In any event, the Court will answer this question only if the case requires it.
C.

Count II: Tortious Interference

Dr. Madigan claims in Count II that SMMC tortiously interfered with his
prospective contractual advantage with Spectrum.

Under Maine common law,

tortious interference with a prospective economic advantage requires a plaintiff to
prove: “(1) that a valid . . . prospective economic advantage existed; (2) that the
defendant interfered with that . . . advantage through fraud or intimidation; and (3)
that such interference proximately caused damages.” Currie v. Industrial Security,
Inc., 915 A.2d 400, 408 (Me. 2007). SMMC moves for summary judgment on Count
II, contending that Dr. Madigan cannot prove either fraud or intimidation. SMMC’s
Mot. at 2. The other elements of the tort are not in dispute.
1.

Fraud

Under Maine common law, the elements of interference by fraud are:
(1) making a false representation (2) of a material fact (3) with
knowledge of its falsity or in reckless disregard of whether it is true or
false (4) for the purpose of inducing another to act or refrain from
acting in reliance on it, and (5) the other person justifiably relies on the
representation as true and acts upon it to the damage of the plaintiff.
Rutland v. Mullen, 798 A.2d 1104, 1111 (Me. 2002).
Dr. Madigan supports his claim with “a series of false statements made by
SMMC’s representatives.” Pl.’s Opp’n 2 at 4. First is Dr. Lavoie’s alleged remark to
Mr. Landry that Dr. Madigan “was a managing partner of SMI and that he was
difficult to work with and had provided no direction for his group.”
42

Id. (citing

PSAMF2 ¶ 30). Second is a remark allegedly made by an SMMC representative at
a February 5, 2010, meeting with Mr. Landry that Dr. Madigan was “difficult to
work with, uncooperative, inflexible, and argumentative.” Pl.’s Opp’n 2 at 5 (citing
PSAMF2 ¶ 33). Third is a remark allegedly made by an SMMC representative at
the same February 5, 2010, meeting that, “because Dr. Madigan failed to provide
leadership to his group and the Radiology Department he was viewed as the
primary reason for SMMC’s dissatisfaction with SMI and the resulting change in
service.” Pl.’s Opp’n 2 at 5 (citing PSAMF2 ¶ 33). According to Dr. Madigan, the
falsity of these statements is established by Dr. Merriam’s contrary testimony. See
Pl.’s Opp’n 2 at 4–5.
Though SMMC disputes both that Dr. Lavoie made these statements and
that they were false, SMMC’s primary defense is that Spectrum did not rely on
these representations in making its decision not to employ Dr. Madigan to work at
SMMC, and that “[w]ithout reliance, there is no fraud.”

SMMC’s Reply at 4.

According to SMMC, Spectrum relied only upon SMMC’s representation that it was
“not comfortable having Dr. Madigan work at SMMC as his primary place of
radiology practice, although the hospital would have no objection to him being hired
by Spectrum and working at another location.” SMMC’s Mot. at 7 (citing DSMF2
¶¶ 11, 25, 26); see also SMMC’s Reply at 5 (citing DSMF2 ¶¶ 11, 24). SMMC
further contends that Spectrum did not consider Dr. Madigan for positions in North
Conway and Bangor because “Dr. Madigan gave Mr. Cutler the impression that he

43

was interested only in positions located in the Greater Portland area, preferably at
SMMC.” SMMC’s Reply at 7 (citing DSMF2 ¶ 28).
A reasonable juror could conclude, based on evidence in the record, that an
SMMC representative told Mr. Landry that Dr. Madigan was “difficult to work
with, uncooperative, inflexible, and argumentative.”

See PSAMF2 ¶ 33.

A

reasonable juror could further conclude that Spectrum relied on this representation
in deciding whether to employ Dr. Madigan. See PSAMF2 ¶ 35 (“Because of these
reports from SMMC it was unlikely that Spectrum would add [Dr. Madigan] to the
practice or look to add him to the practice”). These genuine issues of material fact
lead the Court to deny summary judgment on Count II.
2.

Intimidation

The Maine Law Court last discussed tortious interference by intimidation in
Currie:
[I]ntimidation is not restricted to frightening a person for coercive
purposes, but rather exists wherever a defendant has procured a
breach of contract by making it clear to the party with which the
plaintiff had contracted that the only manner in which that party could
avail itself of a particular benefit of working with defendant would be
to breach its contract with plaintiff.
915 A.2d at 408 (citing Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d
656, 659 (Me. 1989)) (internal punctuation omitted).
As the facts in Currie were somewhat similar to those here, they are worth
summarizing. Herschel Currie was employed as a security guard by a company
called Industrial Security, Inc. (ISI), and placed at a lumber mill called Irving
Forest Products, Inc. (IFPI). Currie, 915 A.2d at 402. While employed by ISI, Mr.
44

Currie complained repeatedly about Alain Ouellette’s speedy driving through the
mill yard. Id. Mr. Ouellette was a regional manager at another facility for which
ISI provided security. Id. Mr. Ouellette continually urged Mr. Currie’s supervisor,
Mr. Johnson, to fire him, but Mr. Johnson at first resisted because he believed Mr.
Currie was doing a good job. Id. at 403. A few months after their first meeting, Mr.
Johnson again met with Mr. Ouellette and fired Mr. Currie later that day. Id. Mr.
Johnson told Mr. Currie that he did not want to fire him, but refused to tell him the
reason for the firing; Mr. Johnson admitted that he would not have fired Mr. Currie
without Mr. Ouellette’s urging. Id.
The Law Court held that these facts supported a reasonable inference of
tortious interference by intimidation. Id. at 408. The Currie Court reasoned that
Mr. Johnson was “acutely aware” of the authority Mr. Ouellette had to terminate
ISI’s contract with IFPI, and that a jury could infer the existence of a tacit
ultimatum: fire Mr. Currie or lose the contract. According to the Currie court, such
an arrangement “need not be overtly expressed to be ‘made clear’ to Johnson.” Id.
In Pombriant, a 1989 case, the plaintiff, Paul Pombriant, was the insurance
broker of record for Bennett Industries. 562 A.2d at 656. A firm named Johnson
had been Bennett’s broker of record before Mr. Pombriant. Id. When Blue Cross
initiated a new program, there was some confusion over whether Mr. Pombriant or
Johnson was Bennett’s broker of record, and Bennett’s insurance coverage was
placed through Johnson despite Mr. Pombriant’s protests. See id. at 657–58. The
Pombriant Court held that the verdict against Blue Cross for tortious interference

45

was supportable due to Blue Cross’s “intimidating means of making it clear to
Bennett that the only manner in which it could avail itself of Blue Cross’s lower
rates for the desired insurance would be by using the brokerage services of
Johnson.”49 Id. at 659.
Here, Dr. Madigan argues that the evidence in the record supports an
inference that SMMC’s award of the contract to Spectrum was conditioned on
Spectrum’s not hiring Dr. Madigan to work at SMMC. Pl.’s Opp’n 2 at 7. Dr.
Madigan contends that such an implicit “quid pro quo” constitutes intimidation
under Currie. Id.
SMMC replies that the evidence “would not permit a reasonable jury to infer
that Spectrum feared it would not receive the contract unless it refused to hire Dr.
Madigan”; that SMMC awarded Spectrum the contract in February of 2010, before
Spectrum made any decisions about whether to employ any of the SMIA
radiologists; that SMMC did not condition its award of the contract to Spectrum on
any decision by Spectrum concerning the radiologists; and that SMMC made clear
to Spectrum that it had no objection to Spectrum’s hiring Dr. Madigan so long as he
was not placed at SMMC. SMMC’s Reply at 13–14.
The Court concludes that the evidence would warrant a reasonable juror in
believing that SMMC implicitly conditioned its award of the contract to Spectrum
on Spectrum’s not hiring Dr. Madigan to work at SMMC. During a November 2,
2009, phone conversation, Dr. Lavoie allegedly told Mr. Landry that if Spectrum
Then-Justice Hornby dissented, noting that “[t]his is not intimidation in any ordinary sense
of the word; it is simply the imposition of an exclusive dealing arrangement or a refusal to deal
through a particular agent.” 562 A.2d at 662.
49

46

were to win the contract, Dr. Lavoie “would be open to Spectrum’s retaining [Drs.
Weltin, Merriam, and Tupper] and putting in new leadership of the department.”
PSAMF1 ¶ 40; DRPSAMF1 ¶ 40; PSAMF2 ¶ 32; DRPSAMF2 ¶ 32. When SMMC
informed Spectrum, on February 5, 2010, that Spectrum had won the contract,
SMMC’s representatives made it clear that Dr. Madigan was the “primary reason”
for the change in service, and implied that Spectrum should not consider Dr.
Madigan for a position at SMMC. PSAMF1 ¶ 41; DRPSAMF1 ¶ 41; PSAMF2 ¶ 33;
DRPSAMF2 ¶ 33; DSMF1 ¶ 10; PRDSMF1 ¶ 10. Although Mr. Cutler conducted an
initial interview with Dr. Madigan, a reasonable juror could conclude that the
interview was a sham, and that Spectrum never considered hiring Dr. Madigan to
work at SMMC. SMMC’s argument that it did not object to Spectrum’s hiring Dr.
Madigan for another location only limits the scope of its alleged interference with
Dr. Madigan’s prospective economic advantage; it does not absolve SMMC from
liability.
Under Currie and Pombriant, a finding that SMMC’s award of the contract to
Spectrum was conditioned on Spectrum’s not hiring Dr. Madigan to work at SMMC
would amount to “intimidation.” Therefore, there is a genuine issue of material fact
as to whether SMMC’s award of the contract did include such an implicit condition.

47

IV.

CONCLUSION
The Court DENIES Spectrum’s Motion for Summary Judgment (ECF No.

39).50 The Court DENIES SMMC’s Motion for Summary Judgment on Plaintiff’s
Tortious Interference Claim (ECF No. 37).
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 28th day of September, 2012

In its reply to the Plaintiff’s Statement of Additional Material Facts, Spectrum interposed
several evidentiary objections and, in accordance with Local Rule 56(e), Dr. Madigan responded.
Pl.’s Local Rule 56(e) Resp. to Def. Spectrum Medical Grp., P.A.’s (“Spectrum’s”) Evid. Objections
(ECF No. 83). The Court has addressed the objections in footnotes 3, 24, 31, 36, and 41.
50

48