SHAUGHNESSY v. DUKE UNIVERSITY et al

Filing 139

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 7/23/2020; The motion for summary judgment, Doc. 113 , is GRANTED as to the tortious interference with prospective economic advantage claim and that claim is DISMISSED. Duke University's motion for summary judgment, Doc. 109 , is DENIED as to the plaintiff's claims under the ADA arising out of his depression and acts in support of others with depression, his breach of contract claim a rising out of the "satisfactory performance" term, the tortious interference with prospective economic advantage claim, and the tortious interference with contract claim. Duke University's motion for summary judgment, Doc. 109 , is o therwise GRANTED. Dr. Shaughnessy's motion for partial summary judgment on Duke's after-acquired evidence-of-misconduct defense, Doc. 108 , is GRANTED. Dr. Shaughnessy's motion for partial summary judgment on his breach of contract claim, Doc. 108 , is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL SHAUGHNESSY,
Plaintiff,
v.
DUKE UNIVERSITY, PRIVATE
DIAGNOSTIC CLINIC, PLLC,
Defendants.

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1:18-CV-461

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Dr. Michael Shaughnessy, formerly an anesthesiologist at Duke University, sued
Duke and the Private Diagnostic Clinic, PLLC (PDC). The evidence creates disputed
questions of material fact as to Dr. Shaughnessy’s claims for discrimination in violation
of the Americans with Disabilities Act, breach of contract by failing to renew his faculty
appointment, and tortious interference, and those claims will proceed to trial. Otherwise,
summary judgment will be granted to the defendants.
FACTS
To the extent the facts are disputed, the Court states the evidence in this section in
the light most favorable to the plaintiff, since the defendants move for summary judgment
on all claims. Additional evidence is included later during discussion of specific claims,
especially on those claims where Dr. Shaughnessy also moves for summary judgment
and the evidence must be viewed in the light most favorable to the defendant in
evaluating his motions.

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In 2011, Duke hired Dr. Shaughnessy as an anesthesiologist to do clinical work at
the University hospital and, to a lesser degree, to conduct academic research and
supervise residents. That same year, he became a member of PDC, the limited liability
company made up of Duke doctors and the vehicle through which those doctors provide
clinical services, including to patients outside the hospital.
In early June 2016, a resident physician in the Anesthesiology Department
committed suicide. Some anesthesiologists advocated for Department leadership to take
a more active role in supporting the mental health of other residents. One of those
physicians, Dr. C.J., discussed her own struggles with depression at two faculty meetings.
After running into obstacles and intimidation from Department Chair Dr. Joseph Mathew
and physically aggressive intimidation by Vice-Chair Dr. Sol Aronson, Dr. C.J. went on
medical leave around August 8, 2016.
Another anesthesiology resident, Dr. L.J., also spoke out in the Department to
raise awareness of suicide prevention and actively supported Dr. C.J.’s efforts. Dr. L.J.
received negative feedback and indirect threats of retaliation made by Dr. Mathew
expressed to third persons. As a result of this and of observing how Dr. C.J. was treated,
Dr. L.J. stopped her efforts to support suicide prevention awareness and told Dr. C.J. the
reason was fear of retaliation.
Around the same time, Dr. Shaughnessy complained to his faculty mentor Dr.
Richard Moon, his then-division chief Dr. Tim Miller, and the Department Vice-Chair for
clinical operations Dr. Gavin Martin about how Dr. C.J. was mistreated by Dr. Aronson

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and about Dr. Mathew’s behavior and hostility to those with depression, specifically to
Dr. C.J. He told the three doctors that he struggled with depression himself.
Despite efforts by three doctors to address the Anesthesiology Department’s
treatment of people with depression and to support the mental health of residents, the
situation did not improve. Instead, at an October division meeting, around the time Dr.
C.J. gave her six months’ notice, Dr. Mathew publicly downplayed the seriousness of the
resident’s suicide, inaccurately dismissing it as the action of someone who had a drug
problem and had diverted drugs. He also instructed physicians to provide this
information to incoming residency applicants who asked about the suicide. Dr.
Shaughnessy again spoke up, objecting to the insensitive characterization of the resident,
referring to his struggles with depression, and suggesting that Dr. Aronson should be
disciplined for his aggressive and threatening behavior towards Dr. C.J. In a later
conversation with Dr. Shaughnessy, Dr. Mathew blamed Dr. C.J. for being “wrong” and
said she “should have known better.”
At around the same time, Dr. Shaughnessy sought a transfer from the Duke
Hospital Anesthesiology Department to the Community Division, also known as
Regional Anesthesia, which serviced contracts at multiple clinics outside the hospital.
Department leadership supported this transition because it would suit Dr. Shaughnessy’s
strengths as a clinician and not require him to do the resident training and academic
research that they perceived as his weaknesses. Dr. Eddie Sanders, chief of the
Community Division, started the credentialing process to hire Dr. Shaughnessy.

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When Dr. Shaughnessy spoke to then-division chief Dr. Jeffrey Gadsden and to
Dr. Martin in November 2016 about working in the Community Division, Dr. Martin and
Dr. Gadsden told him he might be “blacklisted” from various local hospitals as a result of
his complaints to and about Dr. Mathew. Dr. Gadsden later privately told Dr.
Shaughnessy to “watch his back” for the same reasons. A few weeks later, Dr.
Shaughnessy learned that his “gain share” payment for the second half of 2016 would be
substantially lower than usual and that he would not be paid the gain share at all for
January to June 2017 if he were to go to the Community Division in June 2017.
Dr. Mathew decided not to renew Dr. Shaughnessy’s annual contract with Duke,
and he notified Dr. Shaughnessy on January 6, 2017. In that conversation, Dr. Mathew
explicitly conditioned his support for Dr. Shaughnessy’s future employment prospects on
Dr. Shaughnessy’s cessation of his efforts to effect change in the department.
Through the fall and winter, Dr. Shaughnessy stayed in touch with Dr. Sanders
during the credentialing process for the job in the Community Division. In late February,
Dr. Sanders told Dr. Shaughnessy there was no position available with the Community
Division, and even if there were, he would not hire Dr. Shaughnessy for it. This was the
first time in at least 15 years that a candidate for a position at Regional Anesthesia was
not hired after going through the credentialing process. Dr. Shaughnessy’s position at
Duke and his relationship with the PDC both ended in June 2017.
CLAIMS
Dr. Shaughnessy asserts both state and federal law claims against Duke and the
PDC. See Doc. 19. Pending against Duke are Dr. Shaughnessy’s claims for:
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 Breach of contract, Doc. 19 at ¶¶ 124–27,
 Discrimination against him in violation of the Americans with Disabilities Act
as amended, by terminating him, blocking future employment prospects, and
refusing to pay him compensation he was owed, id. at ¶¶ 88–96; by creating a
hostile work environment, id. at ¶¶ 97–103; and by retaliating against him for
engaging in activities protected by the ADA. Id. at ¶¶ 104–11.
 Discrimination against him in violation of Title VII by retaliating against him
for engaging in activities protected by Title VII. Id. at ¶¶ 112–18.
 Wrongful discharge in violation of public policy. Id. at ¶¶ 119–23.
 Tortious interference with prospective economic advantage. Id. at ¶¶ 128–34.
 Tortious interference with contract. Id. at ¶¶ 135–40.
Pending against PDC is Dr. Shaughnessy’s claim for tortious interference with
prospective economic advantage. Id. at ¶¶ 128–34.1
Duke has moved for summary judgment on all claims against it. PDC has moved
for summary judgment on both claims against it; PDC had previously moved for
judgment on the pleadings, Doc. 93, as to Dr. Shaughnessy’s wrongful discharge claim,
Doc. 19 at ¶¶ 119–23, and this motion has been addressed by separate order. Doc. 137.
Dr. Shaughnessy has moved for summary judgment on his breach of contract claim

1

In the operative complaint, Dr. Shaughnessy does not specifically say that his tortious
interference with prospective economic advantage claim is against both Duke and PDC, and the
allegations appear to be directed only against Duke. See Doc. 19 at ¶¶ 128–34. But PDC has
moved for summary judgment on this claim, Docs. 113, 118, and Dr. Shaughnessy has
responded in opposition. Doc. 122.
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against Duke and on Duke’s affirmative defense to the ADA discharge claim of afteracquired evidence.
DISCUSSION
I.

Claims Against Duke
a. Discrimination in violation of the ADA

Dr. Shaughnessy claims Duke violated the ADA by terminating him, blocking
future employment prospects, reducing his “gain share” payment, creating a hostile work
environment, and retaliating against him for engaging in protected activities. Duke
admits that Dr. Shaughnessy is disabled as defined by the ADA as a result of his
depression, but it challenges virtually every other element of this cause of action.
The evidence, viewed as a whole in the light most favorable to Dr. Shaughnessy,
supports his claim that Duke discriminated against him based on his depression and his
efforts to advocate for other physicians with depression and potential mental health
issues. That evidence shows a culture of dismissive, harassing, and intimidating
responses by the department chair Dr. Mathew, vice-chairs Dr. Aronson and Dr. Martin,
and others in leadership roles to physicians who admitted to suffering from depression or
who raised concerns about whether the Anesthesiology Department responded
appropriately to the mental health issues implicated by a resident’s suicide. One
physician was harassed to a degree that caused her to take medical leave, and another
physician experienced negative feedback and gossip originating from the chairs or vicechairs. After disclosing his own depression and complaining about the Department’s
response to those with depression, Dr. Shaughnessy was harassed, had his gain share
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reduced, and then was terminated; eventually, his superiors obstructed his efforts to take
another job when he would not back down from his complaints.
Duke has presented evidence about Dr. Shaughnessy’s performance, his treatment
of staff and residents, and his conduct leading up to the January 2017 non-renewal, which
it says explains the non-renewal and Dr. Shaughnessy’s reduced December 2016 payment
on other, non-discriminatory grounds. But Duke’s evidence is disputed by Dr.
Shaughnessy’s evidence, and as to his non-renewal, Duke’s performance-based defense is
inconsistent with statements made at the time that the decision to end his contract was not
for cause. The evidence gives rise to disputed questions of material fact for the jury.
Duke’s motion for summary judgment on Dr. Shaughnessy’s ADA discrimination
claims based on his depression and advocacy for others experiencing or vulnerable to
mental health issues will be denied.
To the extent the ADA claim is based on Dr. Shaughnessy’s heart block or
rosacea, the motion will be granted. There is no evidence he experienced any
discrimination based on the rosacea, and he does not dispute that Duke accommodated
the heart block.
b. Discrimination in violation of Title VII
Dr. Shaughnessy asserts a retaliation claim under Title VII. While he cites a few
Title VII cases in his brief, see Doc. 121 at 20–22, he does not identify which facts apply
to this claim, as distinct from his retaliation claim under the ADA, nor does he explain
how he experienced discrimination based on sex. See id. at 3–12, 20–22. The Court will
grant Duke’s motion for summary judgment as to this claim.
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c. Breach of contract
Dr. Shaughnessy contends that Duke breached their contract when it terminated
him without cause in violation of promises made in the offer letter and promises made in
the faculty handbook. Both Duke and Dr. Shaughnessy move for summary judgment on
this claim.
It is undisputed that in the operative offer letter, dated April 13, 2011, Duke
offered Dr. Shaughnessy employment as a faculty member and assistant professor in the
Department of Anesthesiology, which Dr. Shaughnessy accepted by signing the offer
letter. Doc. 111-3; Doc. 19 at ¶¶ 7, 12; Doc. 28 at ¶¶ 7, 12.2 The “Standard Terms and
Conditions” appended to the offer letter state the faculty appointment “will be renewed
on a continuing annual basis, subject to satisfactory annual performance and
programmatic needs.” Doc. 111-3 at 5. The Terms and Conditions also provide that,
“[a]s a full-time University employee, you will be subject to all applicable University
policies, as they may exist from time to time, including” conflicts of interest; patents and
tangible research property; the Faculty Handbook; and the School of Medicine policies.
Id. at 5–6.
When Dr. Shaughnessy received the offer letter, he emailed then-Department
Chair Dr. Mark Newman with several questions about the PDC’s non-compete
provisions. Doc. 111-5 at 2–3. In response, Dr. Newman wrote that “[t]he PDC
agreement is the overarching agreement as is the faculty handbook.” Id. at 1; see Doc.

2

Dr. Shaughnessy made minor revisions to the letter agreement to terms not relevant to the
present motion.
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111-3 at 2 (noting Dr. Shaughnessy would “need to execute the PDC Operating
Agreement and related documents”). After the Board of Trustees approved Dr.
Shaughnessy’s position as assistant professor, he received a letter stating he would
“continue to receive all rights, privileges and benefits afforded members of the faculty.”
Doc. 111-8.
Dr. Shaughnessy’s annual renewal letters each noted that, in addition to the
Conditions of Appointment,
You may also wish to review Appendix C of the Faculty Handbook which
includes the University’s policy on Academic Freedom and Academic
Tenure and the University’s obligations in the event of notification of
termination . . . Please remember that all appointments with modifying
descriptors and all secondary appointments are annual appointments and,
therefore, [for the term starting July 1, 2016] will expire on June 30, 2017,
unless noted otherwise below. Advance notice of intent not to renew an
appointment must be given as described in the Faculty Handbook.
Doc. 111-9 at 5 (letters identical in relevant part except for the employment dates). The
letter then indicates Dr. Shaughnessy would be an “Assistant Professor – Track IV of
Anesthesiology 7/1/2016 – 6/30/2017.” Id.
There are disputed questions of material fact as to whether Duke breached the
provision in the contract that Dr. Shaughnessy’s contract would be renewed annually if
his performance was satisfactory. During the termination conversation, Dr. Martin
described the non-renewal as “a no cause termination of your contract,” Doc. 121-3 at 5
(8:9–10), thus indicating that Dr. Shaughnessy’s performance was satisfactory. And, as
discussed supra, there is significant evidence that Dr. Shaughnessy was terminated for an
improper and non-performance-related reason: discrimination in violation of the ADA.
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But there is also evidence that Duke decided not to renew his contract for performancerelated issues. Given these questions of fact, Duke’s and Dr. Shaughnessy’s crossmotions for summary judgment will be denied as to this aspect of the breach of contract
claim.
Dr. Shaughnessy also bases his breach of contract claim on two promises made in
Duke’s Faculty Handbook, Appendix C: 1) academic freedom, including a faculty
member’s ability “[t]o act and to speak in his or her capacity as a citizen without
institutional censorship or discipline,” Doc. 111-10 at 1, and 2) certain procedural
requirements applicable to decisions by Duke not to renew non-tenure-track faculty. Id.
at 7–10; see Doc. 111 at 5–9.
“[T]he law of North Carolina is clear that unilaterally promulgated employment
manuals or policies do not become part of the employment contract unless expressly
included in it,” Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 259, 335
S.E.2d 79, 83–84 (1985), and this rule applies to agreements between professors and
universities. Black v. W. Carolina Univ., 109 N.C. App. 209, 213, 426 S.E.2d 733, 736
(1993). A university’s policies “cannot be the basis of a breach of contract claim unless
the . . . policy provision is a specific, enforceable promise that is incorporated into the
terms of a contract” between the university and its employee. McFadyen v. Duke Univ.,
786 F. Supp. 2d 887, 982 (M.D.N.C. 2011) (collecting cases), aff’d in part and rev’d in
part on other grounds sub nom. Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012); Ryan v.
Univ. of N.C. Hosps., 128 N.C. App. 300, 302, 494 S.E.2d 789, 791 (1998) (plaintiff
“must point to an identifiable contractual promise that the [defendant] failed to honor”).
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For example, in Black v. Western Carolina University, the North Carolina Court of
Appeals found that an offer letter stating that the employee’s appointment “is subject to
the WCU Tenure Policies and Regulations as found in the Faculty Handbook” did
incorporate the handbook into the contract. Black, 109 N.C. App. at 210, 426 S.E.2d at
734. Likewise, in Mayo v. North Carolina State University, the same court held that
language in the appointment letter that the plaintiff’s “employment is subject to all
policies adopted and amended by the UNC Board of Governors” incorporated those
policies into the contract. 168 N.C. App. 503, 508–09 & n.2, 608 S.E.2d 116, 121
(2005).
Here, the terms of the Faculty Handbook that Dr. Shaughnessy invokes for his
breach of contract claim were not expressly incorporated into a separately existing
employment contract. See Black, 109 N.C. App. at 213, 426 S.E.2d at 736. His renewal
letters refer to the part of Appendix C of the Handbook on how and when a faculty
member will be notified of termination or a contract that is not renewed, see Doc. 111-9
at 5, and describe it as an “obligation” of the university, id., but there is no claim here that
this provision was breached. The renewal letters do not reference the Handbook’s
provisions setting forth how Duke will decide not to renew a faculty member’s contract.
And they do not characterize the Handbook’s academic freedom provisions as obligations
or promises; instead, the letters characterize these provisions as a “policy.” Id. These
facts are quite different from those in Black and Mayo, where the appointment letters
specifically stated that the professor’s employment was “subject to” the policies at issue.

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Duke is entitled to summary judgment to the extent Dr. Shaughnessy’s breach of contract
claim is based on the Faculty Handbook.
d. Wrongful discharge in violation of North Carolina public policy.
Duke moves for summary judgment on Dr. Shaughnessy’s wrongful discharge
claim, Doc. 110 at 18–19, a claim that is only available to at-will employees. Dr.
Shaughnessy does not oppose dismissal of this claim. Doc. 121 at 23. Duke’s motion for
summary judgment on the wrongful discharge claim will be granted.
e. Tortious interference with prospective economic advantage and
with contract
Duke moves for summary judgment on these claims, bundling these two tortious
interference claims into one paragraph of its brief. It does not, as required by the Local
Rules, identify the elements for either claim. See LR 56.1(e) (requiring movant to “set
out the elements that the claimant must prove (with citations to supporting authority)”).
It provides only one factual citation in support of dismissing both claims, see Doc. 110 at
24 (citing Doc. 109-13 at ¶ 10), and it does not explain why the evidence is insufficient to
support a jury verdict on any particular element or elements. See Beverage Sys. of the
Carolinas, LLC v. Assoc. Beverage Repair, LLC, 368 N.C. 693, 700–701, 784 S.E.2d
457, 462–63 (2016) (citing distinct elements for each tort).
Duke has not met its initial burden to show that it is entitled to summary judgment
on these claims. See Fed. R. Civ. P. 56(c). Duke’s motion will be denied as to both the
tortious interference with contract and tortious interference with prospective economic
advantage claims.
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f. Duke’s defense to ADA claim of after-acquired evidence
In its Answer, Duke asserted that “after-acquired evidence” served as a bar to Dr.
Shaughnessy’s “recovery of damages and other legal or equitable relief.” Doc. 23 at 23.
Dr. Shaughnessy moves for summary judgment as to this defense. While not completely
clear from the Answer or the briefing, based on the cases the parties cite, it appears this
defense is directed only towards the ADA failure-to-renew claim.
In order to prevail on an after-acquired evidence defense, an employer must prove
that (1) the employee was guilty of severe misconduct or wrongdoing; (2) the employer
was unaware of his conduct; and (3) the employer would have decided not to renew the
employee’s contract on those grounds alone if the employer had known of the alleged
misconduct at the relevant time. See McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 362–63 (1995). It is not sufficient for the employer to believe that the
employee had engaged in misconduct. See Miller v. AT&T Corp., 250 F.3d 820, 838 (4th
Cir. 2001) (defendant did not establish after-acquired evidence defense when it showed
only that it believed an employee’s absences were not covered under the FMLA, rather
than showing employee was not actually entitled to FMLA leave).
The only evidence Duke offers in support of its after-acquired evidence defense is
testimony from Dr. Martin about out-of-court statements made by others some three
years after Dr. Shaughnessy left Duke. According to Dr. Martin, “other faculty
members” told him that Dr. Shaughnessy “was out drinking late at night on many
occasions and was deemed drunk by his colleagues but yet still came to work the next
day.” Doc. 111-43 at 3 (82:12–22), 13 (95:8–25). Dr. Martin identified only one person,
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Dr. D., as the source of this information, which was non-specific as to date, number of
occasions, or surrounding circumstances. Id.
Duke has not provided any admissible evidence to prove that Dr. Shaughnessy
came to work the day after drinking enough alcohol to become drunk. Statements by Dr.
D. or others to Dr. Martin are obviously hearsay, and Duke has not explained how they
could be sufficient to prove the truth of these court-of-court statements. See id. at 3
(82:12–16) (noting these allegations were not “documented”). Duke asserts that this
hearsay is admissible to explain Dr. Martin’s reaction to this information, rather than to
prove the conduct itself, Doc. 126 at 21 n.5, but it cites no case for the proposition that
the after-acquired evidence defense can apply based on hearsay or on uncorroborated,
uninvestigated gossip reported years after the fact.
The only case Duke cites has very different facts. In Blackwell v. Publix Super
Markets Inc., summary judgment was denied on the after-acquired evidence defense
where it was undisputed that the employee had a prior criminal record, and the employer
produced evidence that the employee had not disclosed this record in the employment
application. No. 8:16-2992-HMH-KFM, 2018 WL 1010185, at *13–14 (D.S.C. Jan. 11,
2018) (finding defendant “submitted sufficient evidence to raise a genuine issue of
material fact” on this defense based on several declarations and other record documents).
Dr. Shaughnessy’s motion for summary judgment on Duke’s defense of afteracquired evidence will be granted.
II.

Claims Against PDC
a. Wrongful discharge in violation of public policy
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The PDC has moved for judgment on the pleadings as to this claim, which has
been decided by separate order. Doc. 137.
b. Tortious interference with prospective economic advantage
To prevail on this claim, Dr. Shaughnessy must demonstrate that the PDC
interfered with his future employment by maliciously inducing a third party, Regional
Anesthesia, not to enter into a contract with him, which he would have entered into but
for the interference; damage proximately ensued; and the interference was “not done in
the legitimate exercise” of the PDC’s rights. Beverage Sys., 368 N.C. at 701, 784 S.E.2d
at 463; see Walker v. Sloan, 137 N.C. App. 387, 392–93, 529 S.E.2d 236, 241 (2000)
(noting action is based on “conduct by the defendants which prevents the plaintiff from
entering into a contract with a third party”). The PDC moves for summary judgment on
this claim, challenging the sufficiency of Dr. Shaughnessy’s evidence on each element.
Most of the PDC’s arguments have no merit and require no discussion. The
plaintiff’s evidence is that Dr. Mathew, acting on behalf of PDC and Duke, prevented Dr.
Shaughnessy’s move to Regional Anesthesia. Dr. Shaughnessy has offered evidence that
he was on track to be hired by Regional Anesthesia until Dr. Mathew interfered, that in
15 years no physician-candidate who began the credentialing process at Regional
Anesthesia had not been hired, that Dr. Mathew was motivated by a desire to retaliate
against Dr. Shaughnessy based on his protected status and his protected conduct under
the ADA, and that absent that interference, he would have been hired to work with
Regional Anesthesia.

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PDC’s contention that Dr. Shaughnessy cannot succeed in proving that Regional
Anesthesia is not a third party, however, has merit. As noted supra, to succeed on this
claim, Dr. Shaughnessy must prove that the PDC induced a third party not to enter into a
contract with Dr. Shaughnessy. DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572,
585, 561 S.E.2d 276, 286 (2002); Walker, 137 N.C. App. at 392–93, 529 S.E.2d at 241.
On the one hand, the undisputed evidence shows that PDC and Regional
Anesthesia are separate legal entities: the PDC is a PLLC, and Regional Anesthesia is a
separate PLLC. Doc. 115-1. Indeed, the two entities have a contractual relationship with
each other. Id. But on the other hand, that same contract provides that Regional
Anesthesia will not itself employ any physicians, id. at § 3.5; Docs. 115-2, -3, -4, and that
the PDC has full responsibility to perform all personnel and staffing operations for
Regional Anesthesia. Doc. 115-1 at § 3.5. While there is abundant confusing and
contradictory evidence about why this arrangement arose, what the two entities said
about the arrangement, and how it was understood by Dr. Shaughnessy, none of this
evidence undermines the undisputed facts that Regional Anesthesia does not employ
physicians directly and that all physicians who provide services through Regional
Anesthesia work for PDC. It is undisputed that had he been hired, Dr. Shaughnessy
would have worked for PDC, not Regional Anesthesia PLLC, and PDC cannot interfere
in a potential employment relationship with itself.
The evidence, viewed in the light most favorable to Dr. Shaughnessy, establishes
that Regional Anesthesia did not hire physicians and that PDC would have been the

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hiring entity. The Court will grant the PDC’s motion for summary judgment and will
dismiss this claim against PDC.
Conclusion
Dr. Shaughnessy’s evidence, if believed, shows harassment, retaliation, and
discrimination by Duke against physicians who had depression and who took actions in
support of the mental health of other physicians and residents, including Dr.
Shaughnessy. Questions of fact exist about why Duke did not renew Dr. Shaughnessy’s
contract, so the cross-motions for summary judgment as to breach of the “satisfactory
performance” provision in the contract are denied. Duke has not shown it is entitled to
summary judgment on the tortious interference claims. These claims will move to trial.
Dr. Shaughnessy’s contract did not expressly incorporate the due process and
academic freedom provisions in the Faculty Handbook. Duke’s motion for summary
judgment is granted and Dr. Shaughnessy’s motion is denied as to the breach of contract
claim based on the Faculty Handbook provisions. Duke’s motion will also be granted as
to Dr. Shaughnessy’s Title VII claim and his wrongful discharge claim.
Dr. Shaughnessy’s motion for partial summary judgment on the after-acquired
evidence-of-misconduct defense will be granted. Duke has not proffered evidence
sufficient to establish a disputed question of material fact as to this defense.
The evidence viewed in the light most favorable to Dr. Shaughnessy establishes
that Regional Anesthesia was not the hiring entity and that PDC was not a third party to
the prospective contract. The PDC’s motion for summary judgment is granted as to the
tortious interference with prospective economic advantage claim.
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It is ORDERED that:
1. The motion for summary judgment by the Private Diagnostic Clinic, Doc. 113,
is GRANTED as to the tortious interference with prospective economic
advantage claim and that claim is DISMISSED.
2. Duke University’s motion for summary judgment, Doc. 109, is DENIED as to
the plaintiff’s claims under the ADA arising out of his depression and acts in
support of others with depression, his breach of contract claim arising out of
the “satisfactory performance” term, the tortious interference with prospective
economic advantage claim, and the tortious interference with contract claim.
3. Duke University’s motion for summary judgment, Doc. 109, is otherwise
GRANTED and the plaintiff’s ADA claim based on rosacea and heart block
disabilities, his breach of contract claim based on the due process and
academic freedom provisions in the Faculty Handbook, his Title VII claim, and
his wrongful discharge claim are DISMISSED.
4. Dr. Shaughnessy’s motion for partial summary judgment on Duke’s afteracquired evidence-of-misconduct defense, Doc. 108, is GRANTED.
5. Dr. Shaughnessy’s motion for partial summary judgment on his breach of
contract claim, Doc. 108, is DENIED.
This the 23rd day of July, 2020.

__________________________________
UNITED STATES DISTRICT JUDGE
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Case 1:18-cv-00461-CCE-JEP Document 139 Filed 07/23/20 Page 18 of 18