THURLOW v. YORK HOSPITAL

Filing 42

ORDER ON PLAINTIFF'S MOTION TO AMEND AND DEFENDANT'S MOTION TO DISMISS - denying 27 Motion to Dismiss for Failure to State a Claim; granting 33 Motion to Amend. REMINDER: After entry of this Order, if Amending a COMPLAINT, counsel are REQUIRED to separately file the AMENDED COMPLAINT Document; denying 40 Motion for Leave to File Sur-reply. By JUDGE NANCY TORRESEN. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFERY THURLOW,
Plaintiff,
v.
YORK HOSPITAL,
Defendant.

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ORDER ON PLAINTIFF’S MOTION TO AMEND AND DEFENDANT’S
MOTION TO DISMISS
Before me are the Plaintiff’s motion to amend the Complaint pursuant to
Federal Rule of Civil Procedure 15(a)(2) (ECF No. 33) and the Defendant’s motion to
dismiss pursuant to Rule 12(b)(6) (ECF No. 27). For the reasons stated below, the
Plaintiff’s motion is GRANTED and the Defendant’s motion is DENIED.
BACKGROUND1
The Plaintiff is Doctor Jeffery Thurlow, a board-certified surgeon who
specializes in general surgery. Proposed Am. Compl. ¶¶ 2, 7 (“PAC”) (ECF No. 33-1).
Dr. Thurlow has held clinical privileges at York Hospital since 2002. See PAC ¶¶ 1314. York Hospital recruited him in order to “strengthen the clinical expertise and the
capacity of York Hospital’s Department of Surgery.” PAC ¶ 13. In 2006, York Hospital
hired Dr. Thurlow as an employee. PAC ¶ 14. During his tenure at York Hospital, Dr.

I glean the following facts from the Plaintiff’s Proposed Amended Complaint, taking all wellpleaded facts as true and drawing all reasonable inferences in the Plaintiff’s favor. In re Citigroup,
Inc., 535 F.3d 45, 52 (1st Cir. 2008).
1

Thurlow was “by far the most productive general surgeon in its employ” and “was
universally regarded by his peers as the most dependable, skilled, and proficient
general surgeon on the York Hospital staff.” PAC ¶ 44.
The Defendant is York Hospital, located in York, Maine. PAC ¶ 8. Jud Knox is
the President of York Hospital. PAC ¶ 17. Although Knox is at the helm of the
hospital administration, the York Hospital Medical Staff, an association of
physicians, functions largely independently of the hospital administration. See PAC
¶ 32. Dr. Thurlow was the President of the Medical Staff from approximately 2010 to
2012. See PAC ¶¶ 21, 26.
In 2007, York Hospital hired “Dr. Doe” to join the practice that included Dr.
Thurlow. PAC ¶ 15. While working with Dr. Doe, Dr. Thurlow became aware of
“evidence which caused him to believe that Dr. Doe was performing unnecessary
peripheral nerve surgery, endangering patients in the process, falsifying surgical
notes, and ‘coding’ fraudulently for the surgical procedures he performed in order to
support claims for reimbursement to which he was not legally entitled.” PAC ¶ 16.
Dr. Thurlow informed Knox about his concerns. PAC ¶ 17. Eventually, Dr. Doe was
removed from Dr. Thurlow’s practice group at the insistence of Dr. Thurlow and
another physician. PAC ¶ 19. Dr. Doe was still “retained as an employee of York
Hospital as a member of a second hospital-owned general surgery practice,” but Dr.
Thurlow did not have to work with him because there was no cross-coverage
arrangement between the two separate hospital-owned surgery groups. See PAC
¶¶ 19-20.

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In 2010, while Dr. Thurlow was the President of the Medical Staff, he began a
formal investigation into Dr. Doe’s peripheral nerve surgery practice. PAC ¶ 21. The
resulting external review of Dr. Doe’s practice “was highly critical.” PAC ¶ 24. The
Medical Executive Committee of the York Hospital Medical Staff held a special
meeting with the author of the external review. See PAC ¶ 24. The meeting resulted
in “a unanimous vote to suspend Dr. Doe’s privileges to perform peripheral nerve
surgery.” PAC ¶ 24.
In April of 2012, Dr. Doe tried to “regain permission to perform peripheral
nerve procedures.” PAC ¶ 25. In response to this effort, Dr. Thurlow “made a
presentation to hospital leadership wherein he set forth . . . his concerns about several
aspects of Dr. Doe’s practice, including what he believed to be Dr. Doe’s fraudulent
billing of the United States and other payers.” PAC ¶ 25. In the summer of 2012, Dr.
Thurlow’s tenure of President of the Medical Staff ended. PAC ¶ 26. Soon after, Dr.
Doe’s privileges to perform peripheral nerve surgery were reinstated. PAC ¶ 27.
Although no longer in a leadership position, Dr. Thurlow “continued to express
his ongoing concerns about patient safety and ethical issues” to the York Hospital
administration. PAC ¶ 28. He continued to voice his concerns through at least the
end of 2012. PAC ¶ 30. But the York Hospital administration never placed
restrictions on Dr. Doe’s practice. See PAC ¶ 32. Instead, “[t]he only restrictions that
were ever imposed on Dr. Doe’s practice were imposed by the York Hospital Medical
Staff” and they were “imposed without the support of Jud Knox.” PAC ¶ 32. The

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restrictions placed on Dr. Doe by the Medical Staff, which Knox had resisted, were
“economically costly to York Hospital.” PAC ¶ 33.
“At some point before January 2013,” Knox initiated a plan to merge the two
separate hospital-owned surgery groups. PAC ¶ 34. Knox knew that Dr. Thurlow
thought that Dr. Doe was “dangerous, dishonest, and unscrupulous” and that the
merger would have required the two doctors to work alongside one another. PAC
¶¶ 35, 37. Dr. Thurlow alleges that the plan to merge the two groups was developed
in part to create working conditions that were intolerable for him. PAC ¶ 39. He was
informed of the planned merger in an email on January 28, 2013. PAC ¶ 34.
Dr. Thurlow refused to work with Dr. Doe. PAC ¶ 41. York Hospital fired Dr.
Thurlow without cause and without notice on March 27, 2013.2 PAC ¶ 42. The
hospital continues to employ Dr. Doe and pays him “substantially more than the fair
value of the services he performs.” PAC ¶ 46. After terminating Dr. Thurlow, York
Hospital denied him access to a list of his patients and sent a letter to one of his
former patients implying that “Dr. Thurlow had voluntarily abandoned the patient.”
PAC ¶ 50.
Because the York Hospital Medical Staff functions largely independently of the
hospital administration, Dr. Thurlow continued to remain a member of the Medical
Staff even though he was no longer a York Hospital employee. See PAC ¶¶ 32, 51. On

The Defendant contends that the terms of Dr. Thurlow’s employment contract permitted York
Hospital to terminate him without cause, provided certain conditions were met. Def.’s Mot. to Dismiss
4 (ECF No. 27). Assuming arguendo that I could properly consider the employment contract at this
stage, the Defendant has nonetheless failed to provide me with the actual document. In any event, Dr.
Thurlow is not claiming that York Hospital breached the terms of his employment contract, only that
it retaliated against him in violation of the FCA.
2

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December 17, 2013, Knox gave Dr. Thurlow a “behavioral compact” that Dr. Thurlow
“would be required to sign if he wished to engage Knox in discussions around ‘the
constructive development of cohesive and collaborative general surgical services at
York Hospital.’ ” PAC ¶ 51. The behavioral compact stated, among other things, that
Dr. Thurlow was expected to: (1) “[s]upport the Hospital organization, the Board of
Trustees, Jud Knox and the Leadership of the Organization;” (2) refrain from
“speaking negatively about the Organization, the Board of Trustees or Leadership;”
(3) “cease speaking negatively about past decisions that have been made by the
Hospital Organization and Leadership;” and (4) “[d]irect [his] concerns, criticisms,
and disagreements with the Hospital decisions and policies directly to Jud Knox in
one-on-one private conversations.” Ex. A to PAC (“Behavioral Compact”) (ECF No.
34).
PROCEDURAL HISTORY
On March 25, 2016, Dr. Thurlow filed a one-count Complaint alleging
retaliation in violation of the False Claims Act (the “FCA”), 31 U.S.C. §§ 3729–3733.
Although Dr. Thurlow’s attorney emailed a copy of the Complaint and Summons to
the Defendant’s attorney, he did not serve the Summons and Complaint immediately
because he “had filed the complaint more hurriedly than [he] would have liked, in
order to avoid a time bar, and [he] intended to continue [his] investigation before
making service.” Taintor Aff. ¶ 9 (ECF No. 11-1). The Plaintiff then failed to timely
serve the Complaint.

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The Clerk of Court issued an Order to Show Cause asking the Plaintiff to
explain why he failed to timely serve the Defendant on June 27, 2016. (ECF No. 7).
In response, the Plaintiff’s attorney served the Defendant with an Amended
Summons on June 30, 2016. Taintor Aff. ¶ 12. The Clerk of Court then issued a second
Order to Show Cause directing the Plaintiff to explain why service was not timely
made. (ECF No. 10). On July 7, 2016, the Plaintiff timely responded to the Orders to
Show Cause, stating that he mistakenly believed that he had 120 days to serve the
Complaint, rather than the 90 days allowed by the Federal Rules of Civil Procedure.
Taintor Aff. ¶ 10. I found the Plaintiff had shown good cause and terminated the
Orders to Show Cause. (ECF No. 12). The Defendant then moved to vacate my order
finding good cause. Mot. to Vacate (ECF No. 17). Upon reconsideration, I granted the
Defendant’s motion, finding that the Plaintiff had failed to satisfy the good cause
standard under Federal Rule of Civil Procedure 4(m). Order on Mot. to Vacate 3 (ECF
No. 24). Nevertheless, I exercised my discretion and permitted late service of the
Complaint. Order on Mot. to Vacate 3-5.
The Defendant subsequently moved to dismiss the Complaint for failure to
state a claim on August 31, 2016. Def.’s Mot. to Dismiss (ECF No. 27). On September
21, 2016, the Plaintiff filed an opposition to the Defendant’s motion to dismiss and
also filed a motion for leave to amend the Complaint. Pl.’s Mot. to Amend Compl.
(ECF No. 33). The PAC contains more detailed factual allegations regarding the
Plaintiff’s FCA claim (Count I) and adds two state law claims for intentional

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interference with contractual relations and prospective economic advantage (Count
II) and for wrongful use of judicial proceedings (Count III).
LEGAL STANDARD
A plaintiff seeking to amend more than “21 days after service of a responsive
pleading” must obtain the written consent of the opposing party or leave of court.3
Fed. R. Civ. P. 15(a)(1)(B)-(a)(2). “The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). However, “[t]he liberal amendment policy
prescribed by Rule 15(a) does not mean that leave will be granted in all cases.” 6
Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1487 (3d ed.) Leave
to amend may be denied when “the request is characterized by ‘undue delay, bad
faith, futility, [or] the absence of due diligence on the movant’s part.’ ” Calderón-Serra
v. Wilmington Trust Co., 715 F.3d 14, 19 (1st Cir. 2013) (quoting Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006)).
“ ‘Futility’ means that the complaint, as amended, would fail to state a claim
upon which relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617,
623 (1st Cir. 1996). “In assessing futility, the district court must apply the standard

In this case, the Plaintiff was unable to amend his Complaint as a matter of course in response
to the Defendant’s motion to dismiss because of a procedural maneuver by the Defendant. The
Defendant filed an Answer on August 10, 2016 and then moved to dismiss exactly 21 days later on
August 31. It was technically improper for the Defendant to first file an Answer and then move to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Normally, a motion under 12(b) “must be made
before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b); see also 5C Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1361 (3d ed.) (“If the defendant decides to assert
a Rule 12(b) defense by motion, then he must do so before filing the answer.”). Courts, however, have
not interpreted this timing provision strictly and “have allowed untimely motions if the defense has
been previously included in the answer,” as it was here. Wright & Miller, supra, § 1361; see also Answer
4 (ECF No. 25).
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which applies to motions to dismiss under Fed. R. Civ. P. 12(b)(6).” Morgan v. Town
of Lexington, 823 F.3d 737, 742 (1st Cir. 2016) (citation omitted). Under Rule 12(b)(6),
a party may move to dismiss a complaint for “failure to state a claim upon which relief
can be granted.” A court should grant a Rule 12(b)(6) motion if the complaint fails the
limited notice pleading standard imposed by Rule 8(a)(2). This “requires only a
plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his
legal argument.” Skinner v. Switzer, 562 U.S. 521, 530 (2011). The plausibility
inquiry has two steps:
First, the court must sift through the averments in the complaint,
separating conclusory legal allegations (which may be disregarded) from
allegations of fact (which must be credited). Second, the court must
consider whether the winnowed residue of factual allegations gives rise
to a plausible claim to relief.
Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013) (citation
omitted). In assessing plausibility, the reviewing court must read the complaint as a
whole and “draw on its judicial experience and common sense.” García-Catalán v.
United States, 734 F.3d 100, 103 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009)).
Moreover, at the pleading stage, a plaintiff does not have to “plead facts
sufficient to establish a prima facie case.” Rodríguez–Reyes, 711 F.3d at 54. That is
because the “prima facie standard is an evidentiary standard, not a pleading
standard, and there is no need to set forth a detailed evidentiary proffer in a
complaint.” Id. Nevertheless, “the elements of a prima facie case may be used as a
prism to shed light upon the plausibility of the claim.” Id.

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DISCUSSION
The Defendant contends that leave to amend should be denied because of
(1) the Plaintiff’s lack of due diligence and (2) the futility of the proposed
amendments. Def.’s Omnibus Reply to Pl.’s Opp’n to Mot. to Dismiss and Pl.’s Mot.
for Leave to Amend 5 (“Def.’s Reply”) (ECF No. 37). I address each argument in turn.
I.

Lack of Due Diligence
The Defendant’s due diligence argument is threefold. First, the Defendant

contends that the Plaintiff’s initial failure to timely serve the Complaint evinces a
lack of due diligence. Def.’s Reply 6. The Defendant offers no authority in support of
this argument. The failure to timely serve the Complaint (by seven days) is an issue
that I have already dealt with and does not warrant denial of leave to amend at this
early stage.
Second, the Defendant points out that the Plaintiff’s new factual allegations
and state law claims are based on “information that plaintiff possessed at the time of
originally filing the Complaint” and argues that “[c]ourts are more resistant to
amendments when the proposed allegations were known or knowable at the time the
original pleading was filed.” Def.’s Reply 6 (citing cases). The procedural posture of
the cases cited by the Defendant in support of its due diligence argument are
inapposite. In Gray v. St. Martin’s Press, Inc., the First Circuit upheld the district
court’s denial of leave to amend where the Plaintiff sought to amend three years after
the complaint was filed, discovery had closed, and the court had already ruled on a
motion for partial summary judgment. 221 F.3d 243, 247, 253 (1st Cir. 2000). The
Defendant’s reliance on Quaker State Oil Refining Corp. v. Garrity Oil Co. is similarly
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misplaced. See 884 F.2d 1510, 1517 (1st Cir. 1989). There, the defendant sought to
add a permissive counterclaim two years after the complaint was filed. The First
Circuit held that the district court acted within its discretion in denying leave to
amend because “a great deal of discovery had taken place without reference” to the
new theory, thus prejudicing the plaintiff, and the defendant “never proffered a
satisfactory explanation for its delay.” Id. at 1518.
The facts of this case are a far cry from Gray and Quaker. The Plaintiff is
seeking amendment for the first time “in order to address any perceived deficiencies
in his original Complaint.” Pl.’s Mot. to Amend Compl. 2. At the time he moved to
amend, the motion to dismiss had not been fully briefed. Initial disclosures and
discovery requests had not been served by the parties. Pl.’s Mot. to Amend Compl. 3.
And the pretrial deadlines in the scheduling order have been stayed. See Order on
Mot. to Stay (ECF No. 36). Furthermore, the Defendant has not explained how it
would be prejudiced by allowing amendment.
The Defendant’s third argument is that the Court should consider the
Plaintiff’s intent in waiting to request leave to amend until after the Defendant
moved to dismiss. Def.’s Reply 7 (citing United States ex rel. D'Agostino v. EV3, Inc.,
802 F.3d 188, 195 (1st Cir. 2015)). The Plaintiff’s “blatant attempt to unnecessarily
extend this lawsuit and drain the Defendant and this Court of valuable resources,”
the Defendant says, should not be rewarded. Def.’s Reply 7. In D’Agostino, the First
Circuit reversed the district court, which had applied the wrong legal standard in
denying the plaintiff’s fourth motion to amend. 802 F.3d at 195. The First Circuit

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noted that if the district court concluded that the plaintiff “was attempting to torpedo
[the court’s] briefing schedule, that conclusion could be a proper factor in its Rule
15(a)(2) calculus.” Id.
I do not consider the Plaintiff’s first motion to amend to be an attempt to
torpedo this Court’s briefing schedule. Nor do I agree with the Defendant’s
characterization of this motion as a “blatant attempt to unnecessarily extend this
lawsuit and drain the Defendant and this Court of valuable resources.”4 Def.’s Reply
7. The Defendant’s real gripe appears to be that the Plaintiff has “moot[ed] the
effectiveness of [its] 12(b) motion” by “peeking at Defendant’s hand and reshuffling
the deck when the opportunity presented itself.” Def.’s Reply 7 n.9. But contrary to
the Defendant’s position, moving to amend in response to a motion to dismiss is not
improper. See Fed. R. Civ. P. 15 advisory comm. note, 2009 Amendment (stating that
the rule “will force the pleader to consider carefully and promptly the wisdom of
amending to meet the arguments in the motion” and that “a [r]esponsive amendment
may avoid the need to decide the motion”).

After the briefing on the Plaintiff’s motion to amend had closed, the Defendant filed a motion
for leave to file a sur-reply in order to bring “two important points to the Court’s awareness.” Def.’s
Mot. for Leave to File Sur-Reply 1 (ECF No. 40). “Neither the Federal Rules nor the Local Rules
permits a party to file a surreply to the moving party's reply.” Aero Union Corp. v. Aircraft
Deconstructors Int'l LLC, No. 1:11-484-JAW, 2012 WL 3679627, at *9 (D. Me. Aug. 24, 2012). Thus,
sur-replies are disfavored and granted only in rare circumstances. In re Light Cigarettes Mktg. Sales
Practices Litig., 832 F. Supp. 2d 74, 78 (D. Me. 2011). I have reviewed the Defendant’s proposed surreply and find that the points made therein do not warrant granting of the motion. The Defendant’s
motion is DENIED.
4

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II.

Futility of the FCA Retaliation Claim
The Defendant further contends that leave to amend should be denied because

the Plaintiff’s FCA claim is futile.5 Def.’s Reply 8. The FCA makes it unlawful for an
employer to take adverse employment action against an employee because of the
employee’s efforts to prevent the employer from defrauding the federal government.
31 U.S.C. § 3730(h). To ultimately prevail on a claim for retaliation under the FCA,
an employee must show that “(i) he was engaged in conduct protected under the FCA;
(ii) the employer had knowledge of this conduct; and (iii) the employer retaliated
against the employee because of this conduct.” Harrington v. Aggregate Indus.-Ne.
Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012).6
The Defendant’s futility argument focuses on the third element, causation, and
contends that the PAC does not “evince a plausible connection between [Dr.
Thurlow’s] protected activity and the adverse employment action.” Def.’s Reply 8. The
Defendant maintains that the PAC is devoid of any non-conclusory facts suggesting
that it retaliated in terminating Dr. Thurlow’s employment, and that the time lapse

I have considered the arguments raised in the Defendant’s motion to dismiss in assessing the
proposed Amended Complaint.
5

In 2012, I explained that “[t]he FCA does not require a plaintiff be terminated solely because
he engaged in protected activity. Rather, the employer need only be ‘motivated, at least in part by the
employee’s engaging in protected activity.’ ” Manfield v. Alutiiq Int’l Sols., Inc., 851 F. Supp. 2d 196,
204 (D. Me. 2012) (quoting United States ex rel. Karvelas v. Melrose–Wakefield Hosp., 360 F.3d 220,
240 (1st Cir. 2004)). But today, the standard for causation under the FCA is unclear given the Supreme
Court’s decision that Title VII’s retaliation provision requires but-for causation. See Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). The First Circuit recently assumed without deciding that
but-for causation applies to the FCA. United States ex rel. Hamrick v. GlaxoSmithKline LLC, 814 F.3d
10, 18 (1st Cir. 2016). I do not dwell on this issue here because I find that the Plaintiff’s claim is
plausible under the more demanding but-for standard.
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between the Plaintiff’s protected activity and his termination is too great to support
an inference of causation.7 Def.’s Reply 8-9.
At this early stage, the Defendant’s temporal proximity argument is foreclosed
by First Circuit precedent. “[T]emporal proximity is merely one factor relevant to
causation and usually only later in the proceedings, for example at summary
judgment.” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir.
2014) (quotations omitted). In Garayalde-Rijos, the First Circuit noted that a gap of
five months is a “far cry” from “a temporal gap so attenuated as not to meet the
plausibility standard for surviving motions to dismiss.” Id. (reversing dismissal of a
Title VII retaliation claim where district court found the plaintiff’s “pleadings
inadequate due to its view that alleged causation for retaliation must be deemed
implausible based solely on a five-month period between the protected conduct and
adverse employment action”). In this case, the Plaintiff continued to oppose the
restoration of Dr. Doe’s privileges through at least the end of 2012, and he was
terminated on March 27, 2013. PAC ¶¶ 30, 42. At this stage, this three month gap
supports a plausible inference of retaliation.8 See Garayalde-Rijos, 747 F.3d at 25; see
also Gascard v. Franklin Pierce Univ., No. 14-CV-220-JL, 2015 WL 1097485, at *5
(D.N.H. Mar. 11, 2015) (four month gap sufficient to state a plausible Title VII
retaliation claim).

Given the futility of the anchoring federal claim, the Defendant argues that I should decline
to exercise supplemental jurisdiction over the Plaintiff’s two state law claims. Def.’s Reply 8.
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Given this conclusion, I do not address the Plaintiff’s argument that the relevant date for
temporal proximity “is the date the employer formulated or put into motion a plan to retaliate, not the
date the plan had its effect on the plaintiff.” Pl.’s Opp’n to Def.’s Mot. to Dismiss 12 (ECF No. 32).
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In addition, the PAC does not merely rely on temporal proximity. Read as a
whole, the PAC states a plausible claim for retaliation under the FCA. Dr. Thurlow
alleges that “he was by far the most productive general surgeon” employed by York
Hospital and that “he was universally regarded by his peers as the most dependable,
skilled, and proficient general surgeon on the York Hospital staff.” PAC ¶ 44.
Nevertheless, he was terminated “without cause and without notice.” PAC ¶ 42. His
termination came on the heels of a lengthy battle concerning Dr. Doe’s peripheral
nerve surgery practice. Although Dr. Thurlow was successful in curtailing Dr. Doe’s
practice while he was the President of the Medical Staff, the restrictions placed on
Dr. Doe’s practice, which hurt York Hospital financially, were never supported by
Knox or the York Hospital administration. PAC ¶¶ 21-25, 32-33.
Soon after Dr. Thurlow’s tenure as President ended, Dr. Doe’s privileges to
perform the challenged nerve surgery were reinstated. PAC ¶ 27. Dr. Thurlow
continued to voice his opposition to Dr. Doe’s practice through the end of 2012 even
though he was no longer in a leadership position. PAC ¶ 28. Meanwhile, Knox devised
a plan in January of 2013 to merge the two hospital-owned general surgery groups,
which would have forced Dr. Thurlow and Dr. Doe to “work closely with one another,
‘covering’ one another’s patients.” PAC ¶ 35. Knox knew that Dr. Thurlow regarded
Dr. Doe as “dangerous, dishonest, and unscrupulous,” and that the merger would be
intolerable to Dr. Thurlow. PAC ¶¶ 37, 39. After Dr. Thurlow refused to work with
Dr. Doe, he was terminated. PAC ¶¶ 41-42. The cumulative weight of these

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allegations, taken as true and drawing all reasonable inferences in Plaintiff’s favor,
plausibly allege that Dr. Thurlow was terminated because of his protected activity.
The behavioral compact lends further support to the Plaintiff’s claim. The
compact, which was signed approximately nine months after Dr. Thurlow was
terminated as a hospital employee, stated that York Hospital expected him to: (1)
“[s]upport the Hospital organization, the Board of Trustees, Jud Knox and the
Leadership of the Organization;” (2) refrain from “speaking negatively about the
Organization, the Board of Trustees or Leadership;” (3) “cease speaking negatively
about past decisions that have been made by the Hospital Organization and
Leadership;” and (4) “[d]irect [his] concerns, criticisms, and disagreements with the
Hospital decisions and policies directly to Jud Knox in one-on-one private
conversations.” Behavioral Compact.

Viewed in the light most favorable to the

Plaintiff, the behavioral compact suggests that York Hospital was tired of Dr.
Thurlow’s complaints and wanted to prevent the kind of behavior by Dr. Thurlow
“that led to the exposure and curtailment of Dr. Doe’s fraud.” Pl.’s Opp’n to Def.’s Mot.
to Dismiss 19 (“Pl.’s Opp’n”) (ECF No. 32). This, in turn, supports a plausible
inference that the Defendant harbored a retaliatory animus at the time Dr. Thurlow
was terminated.
The Defendant contends that the behavioral compact does not support “a
plausible inference that retaliatory animus existed,” and points out that the cases
cited by the Plaintiff “for the proposition that comments by an employer can intimate
a retaliatory mindset” do not “feature circumstantial evidence from months after the

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alleged act of retaliation.” Def.’s Reply 11. Although the behavioral compact was
signed after Dr. Thurlow’s termination, courts have considered post-termination
comments as evidence of a retaliatory mindset. See, e.g., Bhatia v. 7-Eleven
Southland, Corp., No. 2:08-987-CW, 2011 WL 4499274, at *2 (D. Utah Sept. 27, 2011)
(comments made months after employee was fired “could be demonstrative of a
retaliatory mindset that also existed at the time of termination”).
Accordingly, I find that the Defendant’s arguments do not provide an adequate
basis to deny amendment or dismiss for failure to state a claim. In light of the liberal
amendment policy underling Rule 15, the totality of the circumstances weigh in favor
of amendment. Under the liberal pleading standards of Rule 8, I find that the
Defendant’s motion to dismiss should be denied.
CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiff’s motion for
leave to file an Amended Complaint (ECF No. 33) and DENIES the Defendant’s
motion to dismiss (ECF No. 27). The Plaintiff shall file the Amended Complaint on
the docket within seven days of the issuance of this Order.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 10th day of January, 2017.

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