BAUER v. WELLSPAN MEDICAL GROUP

Filing 59

MEMORANDUM re pltf's mtn to amend 51 and dft's mtn for summary jgmnt 25 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 3/31/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS L. BAUER, M.D.
Plaintiff,
v.
WELLSPAN MEDICAL GROUP
Defendant.

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Civil No. 1:15-cv-1092

Judge Sylvia H. Rambo

MEMORANDUM
In this employment discrimination action, Plaintiff alleges that his former
employer discriminated against him because of his age by not renewing his
contract and terminating his employment in violation of the Age Discrimination in
Employment Act. Presently before the court are Defendant’s motion for summary
judgment and Plaintiff’s motion for leave to file an amended complaint. For the
reasons stated herein, Plaintiff’s motion to amend his complaint will be denied and
Defendant’s motion for summary judgment will be granted.
I.

Background
In considering the instant motions, the court relied on the uncontested facts,

or where the facts were disputed, viewed the facts and deduced all reasonable
inferences therefrom in the light most favorable to the nonmoving party.
A.

Facts

Defendant Wellspan Medical Group (“Wellspan” or “Defendant”) is a
Pennsylvania non-profit, non-stock corporation with its sole member being

Wellspan Health. (Doc. 27-2, p. 2 of 94.) Wellspan Health is also a non-profit,
non-stock corporation and a health care provider. (Id.) Dr. Thomas McGann (“Dr.
McGann”) was President of Wellspan at all times relevant to this matter. (Id. at 6970 of 94.)
Plaintiff Thomas L. Bauer, M.D. (“Plaintiff”) is a board certified general
surgeon specializing in breast cancer surgery. (Id. at 10 of 94.) He was employed
by Apple Hill Surgical Associates (“Apple Hill”) from August 1970 through
December 2008, when he retired pursuant to the practice’s mandatory retirement
policy which required all physicians to retire at age seventy. (Id. at 19-20 of 94.)
Upon retiring from Apple Hill, Plaintiff joined Wellspan as a breast cancer surgeon
on December 18, 2008. (Id. at 16 of 94.) At the commencement of his practice, the
parties executed a Professional Services Agreement (“the Agreement”) under
which Wellspan Medical Group agreed to employ Plaintiff at a base salary of
$275,000 per year for an initial two-year period. (Doc. 27-2, pp. 51-063 of 94.)
After that, Plaintiff’s contract would renew automatically for one year periods,
unless either party decided to terminate the contract prior to the renewal date. (Id.)
The Agreement included a list of Plaintiff’s required duties and responsibilities,
which required, Plaintiff to “conduct his . . . activities in accordance with the
conduct expected of all professionals who participate in the care of patients . . .”
and “to consistently treat employees and patients in a professional, respectful
2

manner.” (Id.) The Agreement also directed Plaintiff not to remove any of
Wellspan’s or York Hospital’s medical records from the hospital. (Id.)
Additionally, the Agreement required Plaintiff to divest his shares in Apple Hill
Surgical Center Partners, LP, a company that owned a controlling share in Apple
Hill Surgical Center, within twenty-four months of employment. (Id. at 11-12, 5163 of 94.) Although Plaintiff initially objected to this provision, he signed the
Agreement. (Id. at 71-72 of 94.)
Pursuant to the Agreement, Wellspan leased office space for Plaintiff’s
practice in a medical suite owned by Dr. Marsha Bornt (“Dr. Bornt”) located
within the Apple Hill Health Campus in York, Pennsylvania. (Id. at 23-24 of 94.)
Dr. Bornt is the sole proprietor of Apple Hill Gynecology and not employed by
Wellspan. (Id. at 90 of 94.) Defendant hired three staff members to assist Plaintiff
with his practice: Gale Bowman, a nurse; Lori Bowman, a medical secretary; and
Norma Hull (“Ms. Hull”), a transcriptionist. (Id. at 19-22 of 94.)
In February 2011, while at the office, Plaintiff and Lori Bowman got into an
argument. (Id. at 17-18 of 94; Doc. 27-3, pp. 10-13 of 85.) According to Plaintiff,
he wanted to leave the office to meet his wife, but Lori instructed him that he had
to finish dictating his charts or else she would count his time out of the office as
unpaid time off. (Doc. 27-2, p. 17 of 94.) Considering Lori to be out of line,
Plaintiff responded stating, “[Y]oung lady, who are you talking to? Who do you
3

think you are talking to?” (Id. at 17-18 of 94.) Plaintiff then went to his office and
contacted Dr. Ronald Hempling (“Dr. Hempling”), Vice President of Defendant’s
Surgical Oncology Service Line, to ask whether Lori’s behavior was appropriate.
(Id. at 17 of 94; Doc. 27-3, pp. 12-13 of 85.) While on the phone with Dr.
Hempling, Gale Bowman entered Plaintiff’s office to intervene on Lori’s behalf.
(Doc. 27-2, pp. 17, 18, 25 of 94; Doc. 27-3, pp. 12-14, 17-20 of 85.) In response,
Plaintiff held up the phone and said to Dr. Hempling: “[Y]ou want to know what
I’m going through? Listen to this bitch screaming at me.” (Doc. 27-2, pp. 25-26 of
94; Doc. 27-3, pp. 12-13, 17-20 of 85.) In an attempt to diffuse the situation, Dr.
Hempling promptly met with Plaintiff and the three staff members. (Doc. 27-2, p.
18 of 94.) Following that meeting, Debra Kleyhauer (“Ms. Kleyhauer”),
Administrative Director for Defendant’s Oncology Service Line, verbally
counseled Plaintiff that his behavior “was inappropriate and unprofessional” and
warned him “that it [would] not be tolerated.” (Id.; Doc. 27-3, pp. 14, 21 of 85.)
Plaintiff disagreed that his behavior was inappropriate, explaining, “I didn’t
directly call her a bitch. I said listen to this bitch screaming at me.” (Doc. 27-2, p.
26 of 94.) Plaintiff later acknowledged that his statement was not “the most
professional thing.” (Id.)
Several months later, Wellspan and Plaintiff amended the Agreement. While
Plaintiff’s compensation and duties remained the same, the automatic yearly
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renewal clause, which the parties referred to as the Evergreen Clause, was replaced
with a specific term indicating that Plaintiff’s employment “shall terminate on
December 31, 2014, unless terminated sooner pursuant to the terms of th[e]
Agreement.” (Doc. 27-3, p. 34 of 85.)
The parties dispute the circumstances surrounding the amendment. Plaintiff
had not divested his shares of Apple Hill Surgical Partners, LP, even though he had
contractually agreed to do so within twenty-four months and had been working for
Wellspan for almost three years at that point. (Doc. 27-3, p. 32 of 85.) On October
21, 2011, Dr. McGann sent Plaintiff a letter demanding that he comply with his
contractual obligation. (Id.) In response, Plaintiff approached Dr. McGann and
requested that Wellspan replace the Agreement’s Evergreen Clause with a
three-year-term ending on December 31, 2014. (Doc. 27-2, pp. 76-78 of 94.)
According to Dr. McGann, Plaintiff explained, “I have to work until I’m 75.” (Id.)
Apparently Plaintiff had certain financial obligations which he wouldn’t be able to
satisfy if he divested his interest in Apple Hill Surgical Center Partners, LP and,
therefore, he needed assurance that he would continue to work until he reached 75
years old. (Id.) He did not want the Evergreen Clause in his contract, which
Plaintiff described as “too risky.” (Id.) Dr. McGann agreed to amend the
Agreement, and on February 15, 2012, Plaintiff finally sold his shares in Apple
Hill Surgical Partners, LP. (Id. at 65-66 of 94.)
5

Plaintiff provides a different story of these discussions. He admits that he
approached Dr. McGann about a three-year contract in response to Dr. McGann’s
insistence about selling his shares. (Id. at 13-14 of 94.) But, according to Plaintiff,
his understanding was that his contract would begin renewing automatically each
year again after the expiration of the three-year-term. (Id.) When Dr. McGann
presented the proposed amendment, Plaintiff immediately noticed the missing
Evergreen Clause and asked Dr. McGann, “Where is the Evergreen Clause? I’m
not signing this.” (Id. at 14-15 of 94.) Plaintiff claims that Dr. McGann responded,
“By God, Tom, you’re going to be 76 year old at that time.” (Id.) Dr. McGann also
allegedly stated: “I want to plant a seed in your head. And I want you to think
about renegotiating your contract for 2015 at least so you can continue teaching
and doing all your research with Wellspan.” (Doc. 35-2, p. 4 of 70.) Dr. McGann
denies making either statement.
Regardless, Plaintiff ended up signing the amendment as presented. (Doc.
27-2, p. 16 of 94.) When asked why he signed the amendment without the
Evergreen Clause, Plaintiff responded “I don’t know.” (Id.)
Meanwhile problems continued at Plaintiff’s office. Kathy Shields Eberly
(“Ms. Shields Eberly”), Dr. Bornt’s office manager, recalled in her deposition that
Gale Bowman often complained about the way Plaintiff treated her and

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occasionally cried during these conversations.1 (Id. at 37 of 85.) Ms. Shields Eberly
shared an office space with Gale and heard Plaintiff yell at his staff in front of
patients and say negative things about Wellspan to his patients. (Id.) At some
point, she spoke with Dr. Bornt about these issues and noted that Apple Hill
Gynecology patients were sometimes present when Plaintiff acted in this manner.2
(Id.; Doc. 27-2, pp. 90-91 of 94.)
On August 16, 2013, Gale was assigned to work in the Radiation Oncology
Department because Plaintiff was not scheduled to see any patients and the
radiation department was short staffed. (Doc. 27-3, p. 41 of 85.) Plaintiff’s other
staff members were out that day so no one was available in his office to answer the
telephone. (Id. at 22, 41 of 85.) With the permission of Ms. Kleyhauer, Gale
forwarded the calls to the Radiation Oncology Department. (Id.) If Gale was not
available to take the call, the call was sent to the voicemail for Plaintiff’s office

1

Throughout Plaintiff’s response to Defendant’s statement of facts, Plaintiff asserts that the
affidavits of several individuals presented by Defendant are inadmissible as hearsay and
conclusory testimony. (See, e.g., Doc. 33, ¶¶ 32, 34-38, 69, 72.) Federal Rule of Civil Procedure
56 specifically permits the use of affidavits to support facts in summary judgment motions as
long as the affidavit is made “on personal knowledge, set[s] out facts that would be admissible in
evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(1)(A), (c)(4). The court is satisfied that the affidavits provided by Ms.
Shields Eberly, Dr. Bornt, and Dr. McGann meet the criteria set forth in Rule 56. Furthermore,
Plaintiff plainly states that nearly every statement in the affidavits is hearsay, but provides no
further argument. (See Doc. 33.) The court finds that the statements contained in the affidavits
are not hearsay pursuant to Federal Rule of Evidence 801.

2

Dr. Bornt avers that following this discussion, a meeting took place between herself and
Plaintiff to discuss his behavior. (Doc. 27-2, p. 91 of 94.) However, Plaintiff argues that this
meeting never occurred. (Doc. 33, p. 3.)
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and checked every thirty minutes. (Id.) That morning, York Hospital’s Imaging
Department needed Plaintiff’s input prior to operating on a patient. (Doc. 27-2, pp.
28-29 of 94.) Staff at the York Hospital Imaging Department attempted to reach
Plaintiff at his office and, when unsuccessful, called Plaintiff on his cell phone and
mentioned that his office phone was not being answered. (Id.) Plaintiff proceeded
to call his office twice to determine why the phone was not being answered but
each time the receptionist answered, “Radiation Oncology.” (Id. at 30 of 94.)
After completing an operation, Plaintiff returned to his office—in his
words—“very, very angry” and “may have used some language that wasn’t very
nice.”3 (Id. at 30-31 of 94; Doc. 27-3, p. 23 of 85.) Gale began crying as a result of
this interaction. (Doc. 27-2, p. 30 of 94; Doc. 27-3, p. 36 of 85.) Plaintiff claims
that he was angry with Wellspan, not at Gale, for reassigning her to Radiation
Oncology. (Doc. 27-2, p. 31 of 94.) Gale, however, testified that his anger was
directed at her. (Id. at 30 of 94; Doc. 27-3, p. 23 of 85.)
In response to this event, Ms. Shields Eberly went to Dr. Bornt and
threatened to quit unless Dr. Bornt ended Plaintiff’s lease in the shared office suite.
(Doc. 27-2, p. 91 of 94; Doc. 27-3, p. 38 of 85.) As Ms. Shields-Eberly explained,
“I have been working with physicians for over 40 years now, and I feel that
[Plaintiff] was the most unprofessional physician I have ever worked with.” (Doc.
3

Gale Bowman testified in her deposition that Plaintiff “screamed, yelled and cursed at [her] on
the phone that other nurses in Radiation could hear him.” (Doc. 27-3, p. 23 of 85.)
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27-3, p. 38 of 85.) Concerned about her staff quitting and the effect Plaintiff’s
behavior would have on Apple Hill Gynecology, on August 19, 2013, Dr. Bornt
sent a letter to Defendant terminating the lease for space in her office suite in
ninety days. (Doc. 27-2, p. 91 of 94.)
Dr. McGann was made aware of the August 16, 2013 incident the day it
occurred. He received reports that Plaintiff was “extremely angry,” “verbally
abusive,” and “us[ing] obscenities, including the F word,” and that “people were in
tears.” (Id. at 74-75 of 94.) He was further told that the incident did not occur in
private but was “overheard by staff of [Dr.] Bornt’s office.” (Id. at 75 of 94.) The
information was “of such a disturbing nature” that Dr. McGann met with Plaintiff
about it immediately. (Id.) Dr. McGann scheduled another meeting a week later,
after Dr. Bornt officially terminated the lease, and provided Plaintiff with a
“formal first and final written warning.” (Id. at 27, 74 of 94; Doc. 27-3, p. 45 of
85.) This warning letter required Plaintiff to “behave in a professional, respectful,
gracious and courteous manner,” and to “behave in strict accordance with the
WellSpan Medical Group provider compact.” (Doc. 27-3, p. 45 of 85.) Plaintiff
was also required to self-refer to Defendant’s employee assistance program for
anger management counseling. (Id.) The letter also clearly indicated the
consequences of Plaintiff’s failure to fulfill these expectations, stating: “Should
any behavior occur that does not meet the expectations listed above, you will be
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subject to immediate termination. In addition, any actions that are perceived as
retaliatory toward staff will have the same consequence.” (Id.) Finally, the letter
described Dr. Bornt’s decision to terminate the lease as “both an embarrassment to
our organization and a great disservice to our patients.” (Id.)
On September 3, 2013, Plaintiff sent Dr. McGann a letter responding to the
warning letter and providing his own explanation of the August 16, 2013 incident.
(Id. at 47-48 of 85.) Although Plaintiff believed that his staff “had failed” him, he
claimed that his frustration was with Wellspan only and that, “[a]ny suggestion that
I had ‘blown my top’ and was berating my nurse is a complete fabrication and can
only mean you were given bad information.” (Id.) Plaintiff added: “I presume that
your letter of August 23 is in no way related to my earlier request for an extension
of the term of my current contract past the end of the calendar year 2014. . . . At
any rate, my age appeared to be a sensitive issue for you.” (Id. at 48 of 85.) On
September 30, 2013, Dr. McGann responded to Plaintiff’s letter with “shock[] at
the tone and insinuations contained in [the] letter,” including Plaintiff’s suggestion
that “the reprimand was a thinly veiled attempt at ageism.” (Id. at 50 of 85.) Dr.
McGann noted that he had seriously considered terminating Plaintiff’s employment
in response to the August 16th event, and urged Plaintiff to “reconsider the
responsibility that you have for the situation in which you now find yourself.” (Id.)

10

After relocating Plaintiff’s practice to a new location on Bannister Street in
York, Pennsylvania (hereinafter “Bannister Street office”), Dr. McGann received
reports that Plaintiff was copying patients’ records and having inappropriate
conversations with patients. (Doc. 27-2, p. 94; Doc. 27-3, p. 8-9 of 74.) Dr.
McGann and Karen Stough (“Ms. Stough”), Senior Practice Manager for Wellspan
Surgical Oncology, met with Lori, Gale, and Kristina Mahone (“Ms. Mahone”),
who replaced Ms. Hull upon retirement, at the Bannister Street office on October
15, 2013. (Doc. 27-2, p. 85 of 94; Doc. 27-3, p. 4-5 of 85.) During this meeting,
Lori and Gale complained that Plaintiff had become increasingly difficult to get
along with over the past several years. (Doc. 27-3, p. 52 of 85.) Lori stated that
Plaintiff talked negatively about Wellspan to patients, claiming that Wellspan was
out to get him and blaming the staff for his office relocation. (Id. at 6-9, 53 of 85.)
The staff reported that patients appeared confused after these interactions with
Plaintiff. (Id.) Although Gale and Lori complained that Plaintiff often approached
them in the hallway with a raised voice and put his finger in their faces, they
admitted that Plaintiff lost his temper less frequently and stopped using profanity
in the office after receiving the warning letter. (Id. at 53 of 85.) All three women
indicated that they feared Plaintiff would retaliate against them for complaining
about his behavior. (Id.; Doc. 27-2, pp. 87-88 of 94.)

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Dr. McGann and Plaintiff also had a meeting on October 15, 2013, at which
time Plaintiff denied everything that his staff said about him. (Doc. 27-3, p. 54 of
85.) Plaintiff also denied discussing his warning letter, or disparaging Wellspan in
any way to patients, and stated that he told patients that the practice moved to the
Bannister Street office because it was cleaner and larger. (Id.; Doc. 27-2, p. 35 of
94.) He further claimed that his staff was setting him up in order to remove him
from practice. (Doc. 27-2, p. 38-39 of 94; Doc. 27-3, p. 54 of 85.) Based on these
discussions, Dr. McGann instructed Plaintiff to limit his conversations with
patients to clinical issues and not to mention Defendant or retaliate against the staff
in any way, and Plaintiff agreed. (Doc. 27-3, p. 54 of 85; Doc. 27-2, p. 39 of 94.)
However, on April 15, 2014, Lori and Gale complained to Ms. Stough that
they had been receiving threatening and harassing phone calls from Plaintiff and
expressed concerns about working with him. (Doc. 27-3, p. 57 of 85.) They also
alleged that Plaintiff had been copying every patient’s “face sheet,” a portion of the
patient’s medical record containing the patient’s contact information and treatment
summary.4 (Id.) According to Gale and Lori, Plaintiff was telling patients that
Wellspan was firing him and that they should “google” him to find out where he is
practicing to make their appointment for the following year. (Id.) These allegations

4

Plaintiff asserts that he has always copied face sheets, which is a portion of the patient’s record,
for research purposes and this was known to Defendant. (Doc. 33, ¶ 63.) Defendant avers that
Plaintiff removed the face sheets without Defendant’s permission. (Doc. 27, ¶ 99.)
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concerned Dr. McGann as Plaintiff’s Agreement contained both a non-solicitation
clause, prohibiting Plaintiff from soliciting Wellspan patients, and a noncompetition clause, prohibiting Plaintiff from servicing patients in York and
Adams counties during the two-year period following the end of his employment
with Wellspan. (Id. at 52-55 of 85; Doc. 27-2, pp. 55-57 of 94.)
In May 2014, Plaintiff met with Dr. McGann to discuss notifying patients
about the end of his employment with Wellspan. (Doc. 27-2, p. 79 of 94.) The
meeting was attended by Plaintiff; his wife, Paula Bauer; Dr. McGann; Dr.
Douglas Arbittier (“Dr. Arbittier”), Vice President of the Oncology Service Line;
and Rick Ayers (“Mr. Ayers”), a public relations official for Defendant. (Id.) Dr.
McGann, Dr. Arbittier, and Mr. Ayers presented Plaintiff with several proposed
letters which praised Plaintiff for his long career and indicated that he would be
retiring on December 31, 2014. (Id. at 81-82 of 94.) Plaintiff presented his own
proposed letter to patients containing language that he would continue to practice
in his specialized field of breast only surgical oncology, and that a formal
announcement of his new office and affiliations would be available shortly after
his separation from Wellspan. (Id. at 41 of 94; Doc. 27-3, p. 60 of 85.) Dr.
McGann dismissed using Plaintiff’s letter as he believed that the letter ignored the
Agreement’s non-competition and non-solicitation provisions. (Doc. 27-2, pp. 8384 of 94.) Dr. McGann recommended that they collaborate in writing a letter so
13

that Plaintiff’s patients would be notified of his leaving and Defendant could
recognize his years of service. (Id. at 82-83 of 94.) It was explained that if Plaintiff
would not agree to co-authoring a letter, Defendant would provide patients a letter
without Plaintiff’s signature. (Id. at 82-84 of 94.) Dr. McGann explained, if they
did not issue a joint letter, “things can get ugly,” in reference to the impact the
refusal to co-author a letter could have on Plaintiff’s reputation and if Plaintiff
violated the non-competition and non-solicitation clauses of the Agreement. (Id. at
83-84 of 94.) Plaintiff and his wife perceived this statement as a threat. (Doc. 33-2,
p. 4 of 38.) Ultimately, Plaintiff refused to co-author a letter and the meeting
ended. (Doc. 27-2, p. 84 of 94.)
On July 14, 2014, Plaintiff was scheduled to see patients for follow-up
appointments. (Doc. 27-3, pp. 24-25, 64-65 of 84.) Ms. Stough assigned Samantha
Anthony (“Ms. Anthony”), a patient care assistant, to work in Plaintiff’s office to
fill in for Gale who was out that day. (Id.) After her shift ended, Ms. Anthony
approached Ms. Stough with some concerns regarding Plaintiff’s behavior. (Id. at
66-67 of 85.) Ms. Stough asked Ms. Anthony to put her concerns in writing. (Id. at
67, 69-70 of 85.)
In an email sent later that evening, Ms. Anthony indicated that the first
patient’s visit began fine but that Plaintiff became confused when using Wellspan’s
electronic medical record system. (Id. at 69-70 of 85.) Plaintiff told the patient that
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the system was “the cheapest type that could have been bought by Wellspan” and
was far inferior to systems used by other healthcare organizations. (Id.) Next,
Plaintiff told the patient that he had bad news for her. (Id.) The patient, a breast
cancer survivor, immediately became concerned. (Id.) Plaintiff reassured the
patient that she was in fine health, but told her that “Wellspan has decided that he
is too old to be working and is forcing him to retire.” (Id.) At that point, Plaintiff
launched into a diatribe about his former partners at Apple Hill claiming that they
had hatched a ploy to steal that practice from him. (Id.)
Plaintiff also discussed his dispute with Wellspan in detail. Among other
things, Plaintiff told the patient: “They want a good fight, and I told them if they
want a good fight I will give them one. . . . I am suing them. . . . You keep your
eyes open, it will be in the papers!” (Id.) He went on to describe a number of
employment opportunities he was pursuing with Wellspan competitor York
Memorial Hospital and others. (Id.) Plaintiff told the patient a number of times that
he feels like he is being forced to retire because people want “what was his, and
that some even want to claim his research.” (Id.)
Before the patient’s office visit was over, Plaintiff told the patient: “When I
leave this room, I’ll take your face sheet right here . . . and make a copy of it, along
with today’s notes from this visit.” (Id.) Plaintiff then complained to the patient
that his staff had once “told on him” for doing that. (Id.) Ms. Anthony stated that
15

Plaintiff met with the patient for about one hour, and only discussed the patient’s
health for approximately ten minutes of that time. (Id.) She wrote that Plaintiff
used the exact same script with the remaining three patients he saw that day. (Id.)
During his deposition, Plaintiff acknowledged that he did, in fact, express
a number of those sentiments to his patients that day, but accused Ms. Anthony of
lying about the things he said. (Doc. 27-2 pp. 40, 42-43 of 94.) He did, however,
admit that he photocopied patients’ records and removed them to his home without
Wellspan’s permission throughout the last year of his employment. (Id.)
After receiving Ms. Anthony’s email, Dr. Arbittier requested an
investigation based on the information contained therein. (Doc. 27-3, pp. 76-77 of
85.) Wellspan’s Associate General Counsel, Amy Nelson, Esquire, interviewed
Plaintiff’s staff and provided a summary of concerns to Dr. Arbittier. (Id. at 74-75
of 85.) Dr. Arbittier and Dr. McGann then spoke via telephone and collectively
decided to terminate Plaintiff’s employment. (Id. at 75 of 85; Doc. 27-2, p. 73 of
94.) On July 18, 2014, Dr. Arbittier met with Plaintiff and his wife and informed
them that Plaintiff’s employment was terminated. (Doc. 27-2, pp. 44-46 of 94.) Dr.
Arbittier sent Plaintiff a letter on July 25, 2014, detailing the reasons for his
termination, which included a violation of section 2.2.11 of the Agreement and
further violations consistent with the 2013 warning letter. (Id. at 48 of 94; Doc. 273, pp. 79-80 of 85.) Dr. Arbittier concluded his letter by stating, “We appreciate
16

your many years of service to Wellspan and the community. It is unfortunate that
your tenure with Wellspan ended in this regrettable manner.” (Doc. 27-3, pp. 79-80
of 85.)
On October 10, 2014, Plaintiff filed a charge of age discrimination with the
Equal Employment Opportunity Commission (“EEOC”). (Doc. 27-3, pp. 82-85 of
85.)
B.

Procedural History

Plaintiff initiated this action by filing a complaint on March 13, 2015 in the
Eastern District of Pennsylvania alleging that Defendant violated the Age
Discrimination and Employment Act. (Doc. 1.) More specifically, Plaintiff alleges
that, in response to his refusal to retire, Defendant reduced his office staff and
space, terminated his employment, and replaced him with younger physicians. (Id.
at ¶ 22.) On May 21, 2016, the Eastern District of Pennsylvania ordered, in
accordance with the parties’ stipulation, that this matter be transferred to the
Middle District of Pennsylvania. (Doc. 5.)
Following the close of fact discovery, Defendant filed a motion for summary
judgment and a statement of facts on April 14, 2016, followed by a brief in support
on April 15, 2016. (Docs. 25, 27, & 29.) Plaintiff timely filed a response, counterstatement of facts, and a brief in opposition to Defendant’s motion for summary

17

judgment. (Docs. 33-35.) Defendant subsequently filed a reply brief on May 20,
2016. (Doc. 36.)
On August 25, 2016, Plaintiff filed a motion to amend his complaint (Doc.
51), which Defendant opposes (Doc. 55). The motion for summary judgment and
motion for leave to file an amended complaint have been fully briefed and are ripe
for disposition. The court will address each motion in turn.
II.

Motion for Leave to File an Amended Complaint
Generally, leave to amend a pleading pursuant to Federal Rule of Civil

Procedure 15(a) should be “freely give[n] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). However, a court need not grant leave to amend in the presence of bad
faith, undue delay, undue prejudice, or futility. See Diaz v. Palakovich, 448 F.
App’x 211, 215-16 (3d Cir. 2011) (citing Lake v. Arnold, 232 F.3d 360, 373 (3d
Cir. 2000)); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).
“Delay becomes ‘undue,’ and thereby creates grounds for the district court to
refuse leave, when it places an unwarranted burden on the court or when the
plaintiff has had previous opportunities to amend.” Bjorgung v. Whitetail Resort,
LP, 550 F.3d 263, 266 (3d Cir. 2008) (citation omitted). Even where there is no
undue delay, prejudice to the non-moving party remains the touchstone for the
denial of a motion to amend. Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir.
2006). The court must consider whether granting leave to amend the complaint

18

“would result in additional discovery, cost, and preparation to defend against new
facts or new theories.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267,
273 (3d Cir. 2001).
In addition to bad faith, undue delay, undue prejudice, and futility, “a court
has discretion to deny an amendment if such action was done for an improper
purpose.” Prescod v. Bucks County, Civ. No. 08-cv-3778, 2009 WL 3617751, *6
(E.D. Pa. Nov. 2, 2009) (citing Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107,
116 (3d Cir. 2003)). Motions to amend filed after a summary judgment motion has
been submitted are highly disfavored. See Cureton, 252 F.3d at 273. When a
plaintiff files a motion to amend after the filing of a defendant’s motion for
summary judgment, the timing “raises an inference that the plaintiff is attempting
to bolster his legal position – and therefore avoid summary judgment – by
amending the complaint. This is an unacceptable reason to amend.” Fatir v.
Dowdy, Civ. No. 95-cv-0677, 2002 WL 2018824, *8 (D. Del. Sept. 4, 2002) (citing
Kennedy v. Josephthal & Co., 814 F.2d 798, 806 (1st Cir. 1987)) (affirming district
court's denial of leave to amend where the request to amend the complaint
appeared to be “an attempt to avoid an adverse ruling on summary judgment”); see
also Reyes v. Pac. Bell, 21 F.3d 1115, 1115 n.4 (9th Cir. 1994) (“We note also that
[plaintiff]'s motion to amend his complaint was filed only after [defendant] had
filed its motion for summary judgment. A motion to amend should not be used as a
19

way to defeat a motion for summary judgment, and thus the timing of [plaintiff]'s
motion strongly supports the district court's decision to deny it.”).
Here, Plaintiff requests leave to amend his complaint to add a retaliation
claim because Plaintiff recently “became aware that Wellspan provided
information to the Pennsylvania State Board of Medical Examiners that Plaintiff
was not fit to practice medicine.” (Doc. 52, pp. 4-5.) The motion for leave to
amend comes months after Defendant filed its motion for summary judgment and
well after discovery ended. Plaintiff’s request is an attempt to add an additional
cause of action, and therefore a clear effort to avoid summary judgment. As
previously stated, such an attempt is an improper reason for amending a complaint,
and Plaintiff’s motion for leave to amend the complaint will be denied.
III.

Motion for Summary Judgment
A.

Legal Standard

Federal Rule of Civil Procedure 56 sets forth the standard and procedures for
the grant of summary judgment. Rule 56(a) provides that “[t]he 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 summary judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986). A factual dispute is “material” if it might affect the outcome of the suit
under the applicable substantive law, and is “genuine” only if there is a sufficient

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evidentiary basis that would allow a reasonable fact-finder to return a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When evaluating a motion for summary judgment, a court “must view the facts in
the light most favorable to the non-moving party” and draw all reasonable
inferences in favor of the same. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265,
267 (3d Cir. 2005).
The moving party bears the initial burden of demonstrating the absence of a
disputed issue of material fact. See Celotex, 477 U.S. at 324. “Once the moving
party points to evidence demonstrating no issue of material fact exists, the nonmoving party has the duty to set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule in its favor.” Azur v.
Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). The non-moving
party may not simply sit back and rest on the allegations in its complaint; instead,
it must “go beyond the pleadings and by [its] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations
omitted); see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Summary judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden at trial.” Celotex, 477 U.S. at 322-23.
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“Such affirmative evidence – regardless of whether it is direct or circumstantial –
must amount to more than a scintilla, but may amount to less (in the evaluation of
the court) than a preponderance.” Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
B.

Discussion

Defendant sets forth two arguments in support of summary judgment: (1)
that the statute of limitation bars Plaintiff’s claim that Defendant refused to extend
his contract past 2014; and (2) that Plaintiff cannot establish that his age was the
“but for” reason that Wellspan terminated his employment
1. Whether Plaintiff’s contract renewal claim is time-barred
The ADEA generally requires a plaintiff to file a charge of discrimination
with the EEOC within 180 days of the alleged unlawful practice. 29 U.S.C.
§ 626(d)(1)(A), but, in a “deferral state” such as Pennsylvania, a plaintiff has 300
days from the alleged unlawful practice to file a charge of discrimination. 29
U.S.C. § 626(d)(1)(B); Davis v. Calgon Corp., 627 F.2d 674, 677 (3d Cir. 1980).
This period begins to run the moment the challenged decision is “made and
communicated to” plaintiff “even though one of the effects . . . did not occur until
later.” Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (emphasis in original).
Throughout the litigation, Plaintiff has claimed that Defendant refused to
extend his contract past December 31, 2014 due to his age. Defendant argues that,

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although the facts are not clear regarding exactly when Plaintiff knew his contract
would not be renewed, Plaintiff knew, at the latest, on September 3, 2013 when he
sent a letter to Dr. McGann suggesting that Wellspan was refusing to extend his
contract due to his age. (Doc. 29, p. 30 of 41.) Specifically, Plaintiff stated:
I presume that your letter of August 23 is in no way
related to my earlier request for an extension of the term
of my current contract past the end of the calendar year
2014. . . . it appeared to me that you had a negative
approach when discussing with me, my desire to continue
working for the Hospital at the end of my current
Contract year. At any rate, my age appeared to be a
sensitive issue for you.
(Doc. 27-3, p. 48 of 85.) Based on this letter, Defendant asserts that Plaintiff knew
his contract would not be renewed, and suspected his age played a role in that
decision, by September 3, 2013. Accordingly, Defendant argues that Plaintiff had
300 days, or until July 1, 2014, to file a charge with the EEOC related to
Wellspan’s refusal to extend his contract.
Defendant further argues that, although Plaintiff’s EEOC charge timely
challenged his termination, the refusal to extend Plaintiff’s contract was a discrete
employment action that cannot form the basis for a continuing violation that
culminated in his termination. Instead, each discrete employment action, i.e. the
refusal to extend Plaintiff’s contract and Plaintiff’s termination, constituted a
separate employment action subject to its own statute of limitation period.

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After a thorough review of the record in this case, is not clear exactly
when, if ever, Defendant advised Plaintiff that it would not extend his contract.
However, it is clear that by September 3, 2013, at the very latest, Plaintiff felt that
his contract renewal request had been denied. As the refusal to renew a contract is
a discrete act, Plaintiff had until July 1, 2014 to file a claim with the EEOC.
Plaintiff’s October 14, 2014 EEOC charge was therefore untimely insofar as it
claimed that Wellspan refused to extend his contract. Chinoy v. Pa. State Univ.,
Civ. No. 11-cv-1263, 2012 WL 727965, *5-6 (M.D. Pa. Mar. 6, 2012) (citing
O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)) (stating that the
refusal to renew a contract is a discrete act that begins the relevant statute of
limitations and is not a part of a continuing violation). Accordingly, the court will
grant Defendant’s motion for summary judgment on this claim.5
2. Whether Plaintiff established pretext
The ADEA makes it unlawful for an employer to “discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). To prevail

5

The court notes that, in his opposing brief Plaintiff focused entirely on whether his age was a
“but for” cause of his termination and failed to address Defendant’s argument that his contract
renewal claim is time-barred. Because failure to address the substance of any issue “constitutes
an abandonment of those causes of action and essentially acts as a waiver of these issues,”
Skirpan v. Pinnacle Health Hosps., Civ. No. 07-cv-1703, 2010 WL 3632536, *6 (M.D. Pa. Apr.
21, 2010) (citations omitted), this alone would also be a sufficient ground upon which to grant
summary judgment on this issue in Defendant’s favor.
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on a claim of intentional discrimination under the ADEA, “a plaintiff must show
that his or her age ‘actually motivated’ or ‘had a determinative influence on’ the
employer's adverse employment decision.” Fasold v. Justice, 409 F.3d 178, 183
(3d Cir. 2005).
ADEA claims are litigated according to the burden-shifting framework
developed for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009)
(approving of the “continued application of the McDonnell Douglas paradigm in
age discrimination cases”); see also Wilson v. Mobilex USA Inc., 406 F. App'x 625,
626 (3d Cir. 2011) (“ADEA . . . claims are governed by the familiar burdenshifting framework set out in McDonnell Douglas.”); Fasold, 409 F.3d at 183-84
(holding that ADEA claims proceed under the McDonnell Douglas framework).
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of age
discrimination. Smith, 589 F.3d at 689. After doing so, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its adverse
employment action. Fasold, 409 F.3d at 184. If a legitimate nondiscriminatory
reason is provided, the plaintiff must present evidence to demonstrate that the
defendant's proffered reasons were not its true reasons, but were merely a pretext
for its illegal action. Smith, 589 F.3d at 691. The plaintiff can prove pretext by
submitting evidence that allows a fact finder to either disbelieve the employer's
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articulated legitimate justification, or to conclude that an invidious discriminatory
reason was more likely than not a “but for” cause of the employment action.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see also Keller v. Orix Credit
Alliance Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (applying Fuentes in ADEA
context). To accomplish this, a plaintiff must show that a defendant's reasons are so
weak, incoherent, implausible, or inconsistent that they lack credibility. See
Fuentes, 32 F.3d at 765. Regardless of the method, the evidence must allow a
reasonable jury to find, by a preponderance of the evidence, that age discrimination
was a “but for” cause for the adverse employment action. Abels v. DISH Network
Serv. LLC, 507 F. App'x 179, 183 (3d Cir. 2012) (citing Gross v. FBL Fin. Servs.
Inc., 557 U.S. 167, 177–78 (2009)).
To establish a prima facie case of age discrimination under the ADEA, a
plaintiff must satisfy four elements: (1) he is at least forty years of age; (2) he is
qualified for the position in question; (3) he has suffered an adverse employment
action; and (4) he has been replaced by a sufficiently younger employee to permit a
reasonable inference of age discrimination. See Sempier v. Johnson & Higgins, 45
F.3d 724, 728 (3d Cir. 1995). It is undisputed that Plaintiff was over the age of
forty, that he was qualified for his position because he had been employed as a
breast cancer surgeon for over forty years, and that he was terminated. As to the
fourth element, Plaintiff claims that two younger breast cancer surgeons were hired
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to do the same work as Plaintiff but is unsure if that was the reason for his
termination. (Doc. 35, p. 8 of 23.) At his deposition, Plaintiff was questioned on
this topic:
Q: Was [your termination] to make room for Dr. Johnson
and Dr. Pandelidis because they were younger?
A: You have to ask them.
Q: You don’t know one way or the other?
A: No.
(Doc. 27-2, p. 49 of 94.) Accordingly, it is not clear that Plaintiff can establish a
prima facie case of age discrimination. However, Defendant assumes, arguendo,
that Plaintiff can establish a prima facie case (Doc. 29, p. 33-34 of 41), and the
court will likewise make this assumption.
The burden thus shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for terminating Plaintiff. Defendant argues that it has
satisfied this burden by establishing that Plaintiff was terminated “in response to
the multiple instances of unprofessional behavior that occurred over the last years
of [his] employment.” (Id. at 34 of 41.) As set forth in detail above, Defendant had
to address numerous instances of unprofessional conduct on the part of Plaintiff
from February 2011 until he was terminated on July 18, 2014. See supra
Section I.A. Thus, Defendant has satisfied its burden.
Shifting the burden back to Plaintiff, he argues that a reasonable factfinder
could disbelieve Defendant’s articulated legitimate reasons. Specifically, Plaintiff

27

contends that Defendant’s reliance on the February 2011 incident when he used the
term “bitch” in reference to Gale Bowman is “only a poor excuse” to justify its
age-related discrimination. (Doc. 35, p. 10 of 23.) While Plaintiff admits that Dr.
Bornt terminated the lease after his August 16, 2013 outburst, he claims that he
was not directing his anger at Gale but at Wellspan. (Id. at 13 of 23.) He further
argues that all action taken as a result of that incident exhibits the bad faith by
Wellspan “in continuing to expose [Plaintiff] to a spy program promulgated by
hospital executives” in an effort to terminate his employment. (Id. at 11-12 of 23.)
Plaintiff also attempts to create issues of material fact related to this alleged spy
program. Lastly, Plaintiff admits that he removed patients’ face sheets and other
medical records from his office but claims that Ms. Anthony lied about most of the
other matters described in her email.6 (Id. at 18-19 of 23.)
None of the evidence Plaintiff presents would allow a factfinder to
disbelieve Defendant’s justification for termination, or conclude that Plaintiff’s age
was the “but for” reason for his termination. It is undisputed that the evidence
shows that Plaintiff referred to Gail as a “bitch” during an argument and that Dr.
6

Plaintiff also relies on the fact that he qualified for unemployment compensation “after the
hospital contested it with the Bureau of Unemployment Compensation finding no just cause for
the termination.” (Doc. 35, p. 19 of 23.) Regardless of whether Wellspan opposed Plaintiff’s
application for unemployment compensation benefits, the court will not consider an
administrative determination under the Pennsylvania Unemployment Compensation Law when
evaluating a summary judgment motion in an employment discrimination case. See, e.g.,
Helfrich v. Lehigh Valley Hosp., Civ. No. 03-cv-5793, 2005 WL 1715689, **16-20 (E.D. Pa.
July 21, 2005); Williamson v. Penn Millers Ins., Co., Civ. No. 04-cv-1142, 2005 WL 3440633,
**7-8 (M.D. Pa. Dec. 14, 2005.)
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Bornt terminated Plaintiff’s lease in response to Ms. Shields Eberly’s refusal to
continue working in the same office as Plaintiff. Furthermore, even if Ms. Anthony
fabricated the entire description of what occurred on July 14, 2014, it is undisputed
that she told Wellspan that Plaintiff was using patient consultations to disparage
Wellspan and its physicians, recruit patients for a competing practice, and to copy
and remove patient records. Wellspan also gave Plaintiff ample opportunity to
modify his conduct. Thus, Wellspan was justified in terminating Plaintiff due to
the multiple articulated legitimate reasons.
Further, it is not the court’s role to “act as a super-personnel committee
reviewing the decision to ensure that there was just cause for . . . termination.”
Cain v. Wellspan, Civ. No. 08-cv-1704, 2009 WL 5112352, *8 (M.D. Pa. Dec. 17,
2009) Instead, the relevant inquiry—and the one which Plaintiff as the non-moving
party must come forward with evidence to support—is whether the real reason for
the termination was discrimination. Plaintiff has come forward with no such
evidence.
Therefore, the court will grant summary judgment in favor of Defendant as
Plaintiff cannot establish pretext.

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IV.

Conclusion
For the reasons stated herein, Plaintiff’s motion for leave to amend the

complaint (Doc. 51) will be denied and Defendant’s motion for summary judgment
(Doc. 25) will be granted. An appropriate order will issue.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: March 31, 2017

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