Barot v. Susquehanna Physician Services et al

Filing 93

MEMORANDUM (Order to follow as separate docket entry) re: 61 MOTION for Partial Summary Judgment filed by Navin Barot and 64 MOTION for Summary Judgment filed by Susquehanna Health System, Divine Providence Hospital of the Sisters of Christian Charity, Susquehanna Physician Services. Signed by Honorable Matthew W. Brann on 1/9/2018. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NAVIN BAROT,
Plaintiff,
v.
SUSQUEHANNA PHYSICIAN
SERVICES d/b/a SUSQUEHANNA
HEALTH MEDICAL GROUP,
DIVINE PROVIDENCE HOSPITAL OF
THE SISTERS OF CHRISTIAN
CHARITY, SUSQUEHANNA HEALTH
SYSTEM, and SUSQUEHANNA
PHYSICIAN SERVICES,
Defendants.

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No. 4:14-CV-00673
(Judge Brann)

MEMORANDUM OPINION
JANUARY 9, 2018
Plaintiff Navin Barot and Defendants Susquehanna Physician Services d/b/a
Susquehanna Health Medical Group, Divine Providence Hospital of the Sisters of
Christian Charity, Susquehanna Health System, and Susquehanna Physician
Services (“Defendants”) have filed cross-motions for summary judgment on Count
V of Plaintiff’s Complaint. For the reasons discussed below, Defendants’ Motion
is granted, and Plaintiff’s Motion is denied.

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I.

INTRODUCTION
Plaintiff Navin Barot (“Dr. Barot”) commenced this action on April 8, 2014

against Defendants.1 In his Complaint, Mr. Barot alleged five claims: (1) racial
discrimination and harassment under Title VII of the Civil Rights Act of 1964
(“Title VII”); (2) wrongful/constructive termination under Title VII; (3) violations
under the Pennsylvania Human Relations Act; (4) race and national origin
discrimination under 42 U.S.C. § 1981; and (5) breach of contract.2 Defendants
filed an Answer to this Complaint on June 6, 2014, and the parties thereafter
commenced factual discovery.3
At the conclusion of discovery, and following my resolution of a motion to
compel,4 the parties filed a Joint Stipulation of Dismissal with Prejudice of Counts
I, II, III, and IV.5 On January 31, 2017, the parties filed cross motions for
summary judgment on Count V within Dr. Barot’s Complaint—breach of
contract.6 Extensive briefing on these motions followed, bringing the case to its
present posture.7

1

ECF No. 1.

2

Id.

3

ECF Nos. 8 & 13.

4

ECF No. 51.

5

ECF No. 56.

6

ECF Nos. 61 & 64.

7

ECF Nos. 63, 74, 80, 85, 86, & 92.

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II.

FACTUAL BACKGROUND8
A.

The Parties

Susquehanna Physician Services (“SPS”) d/b/a Susquehanna Health Medical
Group (“SHMG”) (collectively “SPS/SHMG”) is a 501(c)(3) non-profit
corporation that employs physicians to work within Susquehanna Health System
(“SHS”).9 Divine Providence Hospital of the Sisters of Christian Charity (“DPH”)
is a non-profit corporation whose sole member is SHS.10 In 2009, SPS/SHMG
started its own gastroenterology practice, and intended to hire two
gastroenterologists to work in that practice.11 Jim Turri (“Mr. Turri”), Senior Vice
President and COO of SPS/SHMG, recruited Plaintiff Navin Barot, M.D. as the
first gastroenterologist.12 Dr. Barot was thereafter employed as a
gastroenterologist for SPS/SHMG from July 27, 2009 through May 15, 2011.13
That term of employment and its eventual termination is the impetus of this
litigation.
8

The relevant facts are taken from the Defendant’s Statement of Material Facts, (ECF No. 65),
the Plaintiff’s Response to Defendants’ Statement of Material Facts, (ECF No. 87), and both
parties’ corresponding evidentiary exhibits. Any facts that remain in dispute are noted as
such.

9

Defs.’ Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶¶ 2, 4; Pl.’s Resp. to Defs.’
SUMF (“Pl.’s Resp.”) ¶¶ 2, 4.

10

Defs.’ SUMF ¶ 3; Pl.’s Resp. ¶ 3.

11

Defs.’ SUMF ¶ 5; Pl.’s Resp. ¶ 5.

12

Defs.’ SUMF ¶ 6; Pl.’s Resp. ¶ 6.

13

Defs.’ SUMF ¶ 1; Pl.’s Resp. ¶ 1.

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B.

Susquehanna Health Medical Group Physician
Employment Agreement

Dr. Barot’s employment as a gastroenterologist was governed by the terms
of the Susquehanna Health Medical Group Physician Employment Agreement
(“Physician Employment Agreement”) entered into by the parties on May 18,
2009.14 This Employment Agreement provided for a five-year term with a base
salary of $560,593 for the first three years.15 The Physician Employment
Agreement also provided Dr. Barot with an opportunity to earn additional
incentive compensation. The “Incentive Compensation” provision read in
pertinent part:
6. Incentive Compensation
In order to promote the efficient operation of the Physician’s medical
practice and the availability and provision of high quality medical
service to the community served by SHMG, Physician shall be
eligible to participate in an incentive compensation program in the
first three years of the Agreement. If Physician WRVU’s at the end of
the contract year exceed 10,000 WRVU’s, physician shall receive
Additional Compensation, subject to the limitations set forth in
Section 7 below . . . 16
Section 7, or the “Limitation on Compensation” provision read as follows:
7. Limitation on Compensation
The total amount of Base Salary plus Incentive and Quality Bonus
Compensation payable by SHMG to Physician in any year of this
Agreement shall not exceed the 90th percentile of the most recently
available comparable Compensation Survey published by the Medical
14

Defs.’ SUMF ¶¶ 8–9; Pl.’s Resp. ¶¶ 8–9.

15

Physician Employment Agreement (ECF No. 65-3), Exh. 2-C, at ¶¶ 1, 4A.

16

Id. ¶ 6 (emphasis added).

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Group Management Association for physicians in the same specialty
as Physician. If Physician’s productivity, expertise and overall job
performance suggests that his compensation should exceed the 90th
percentile compensation limitation set forth herein, it will be
presented to the Compensation Committee of the SHMG Board of
Directors for consideration and determination in accordance with
SHMG policy and procedure. However, Physician’s total
compensation shall not exceed such amount as would constitute
reasonable compensation when paid by an organization, such as
SHMG, which is a tax-exempt organization under Section 50l(c)(3) of
the Code.17
The Employment Agreement also dictated that SPS/SHMG was to provide Dr.
Barot with both “the opportunity to attend continuing medical education programs
for a maximum of ten (10) business days annually,”18 and the opportunity “to
jointly participate in the interview, selection, and performance appraisal of all such
support personnel.”19
A “Termination” provision within Section 19 of the Employment Agreement
provides for three circumstances in which termination is permitted. First, this
Section allows for termination at will following a ninety (90) day advance written
notice.20 Second, the Physician Employment Agreement would automatically
terminate at the discretion of SHMG if one of eleven (11) events were to occur.21
Third, and perhaps most relevant to the instant dispute, “[e]ither party may
17

Id. ¶ 7.

18

Id. ¶ 11.

19

Id ¶ 13, at 8 (emphasis added).

20

Id. ¶ 19.

21

Id.

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terminate this Agreement for material breach of the Agreement by the other party
or a failure to fulfill the material terms of this Agreement.”22 In the event of such a
breach, this Section further provides that:
The non-breaching party shall give the breaching party written notice
specifying the default along with notice to terminate within thirty (30)
days. The breaching party shall have thirty (30) days within which to
cure the default. If such default is not cured within that time, this
Agreement shall terminate.23
Finally, the Physician Employment Agreement contains an integration clause,
titled “Entire Agreement” which provides that:
This Agreement represents the entire Agreement between the parties
and supersedes all previous written or verbal understandings.24
C.

Susquehanna Health System Medical Director of the
Gastroenterology Program Agreement

Prior to Dr. Barot commencing his employment with Defendants, he also
entered into a separate contract with SHS to serve as Medical Director of Divine
Providence Hospital, or DPH.25 Titled “Susquehanna Health System Medical
Director of the Gastroenterology Program” (“Medical Director Contract”), this
contract provided that Dr. Barot was responsible for fifteen (15) administrative

22

Id.

23

Id.

24

Id. ¶ 26.

25

Defs.’ SUMF ¶ 10; Pl.’s Resp. ¶ 10.

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duties detailed within the agreement.26 Compensation for performing these duties
was set at “the all-inclusive hourly rate of $100.00 per hour, to a maximum of
$50,000 per year,” as verified by a monthly time log “describing with particularity
the date, nature and duration of services provided under this Agreement.”27
Pertinent to the instant dispute, a termination provision within the Medical Director
Contract stipulated that it shall be terminable “at will by either party upon services
of written notification of intent to terminate not fewer than ninety (90) days prior
to the effective date of termination.”28
D.

Dr. Barot’s Employment History with Defendants

Dr. Barot began his employment as a gastroenterologist and Medical
Director of Gastroenterology on July 27, 2009, and, throughout the period of his
employment, was subject to various practice reviews.29 During one of those
practice reviews, held on April 13, 2010, Mr. Turri explained the process,
contained within Section 7 of the Physician Employment Agreement, which would
be followed in seeking approval from the Compensation Committee for
Compensation in excess of the 90th percentile.30 He further discussed that there
26

Susquehanna Health System Medical Director of the Gastroenterology Program Agreement
(ECF No. 66-1), Exh. 4-A.

27

Id.

28

Id.

29

Defs.’ SUMF ¶ 55, at 11; Pl.’s Resp. ¶ 55, at 9.

30

Defs.’ SUMF ¶ 61, at 12; Pl.’s Resp. ¶ 61, at 10. See also Dep. of Jim Turri (ECF No. 65-3),
Exh. 2-E, April 12, 2010 Practice Review. While Dr. Barot contests that this process as

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could be an issue with the compensation Dr. Barot was seeking for conscious
sedation because there is no reimbursement from the insurance payers.31
In a letter dated May 17, 2010, Steven Johnson, CEO of Susquehanna Health
System, wrote a letter to Dr. Barot expressing that SPS/SHMG would perform a
financial analysis at the end of the contract year and “if physician productivity,
expertise and overall job performance suggests that his compensation should
exceed the 90th percentile compensation limitations set fort(sic) herein, it will be
presented to the Compensation Committee.”32 Thereafter, at a June 8, 2010
practice review meeting, doubt was again expressed by Mr. Turri through Brian
Buttorff, Administrative Director for SPS/SHMG, as to whether the Compensation
Committee would approve RVU33 credit for conscious sedation coding bundled
into another provedure.34

described by Mr. Turri was improper, he does not dispute the authenticity of this memo sent.
Pl.’s Resp. ¶ 61, at 10.
31

Defs.’ SUMF ¶ 62, at 12; Pl.’s Resp. ¶ 62, at 11.

32

Defs.’ SUMF ¶ 67, at 13; Pl.’s Resp. ¶ 67, at 12.

33

“An RVU is the unit that Medicare uses to calculate the reimbursement for a particular CPT
code. There are three parts to an RVU. There is a medical malpractice piece, there is a work
piece and then a practice expense piece. Those three pieces added together equal the total
RVU which is then multiplied times the current conversion factor, Medicare conversion
factor, to determine the reimbursement amount for each CPT code.” Dep. of Michael Rupert
(ECF No. 62-17) at 14:22–15:5.

34

Defs.’ SUMF ¶ 68, at 13; Pl.’s Resp. ¶ 68, at 12.

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Three further meetings with Dr. Barot and administrators for Defendants
were held on June 11, 2010, July 13, 2010, and August 4, 2010.3536 On November
2, 2010, SHS, through Vice President of Operations and Administrator of Divine
Providence Hospital Ronald J. Reynolds, sent Dr. Barot a letter notifying him of
their intent to terminate his appointment as Medical Director of the
Gastroenterology Program effective January 31, 2011.37 Dr. Barot’s separate
Physician Employment Agreement with SPS/SHMG was unaffected, and he
remained as one of two gastroenterologists working for SPS/SHMG.38
On December 2, 2010, Mr. Turri sent to Dr. Barot a Memo concerning
“incentive compensation due at the end of the first contract year (July 2010).”39
This Memo relayed the following information: (1) the 2010 90th MGMA percentile
for his practice group, (2) the amount of incentive compensation that he would
automatically be paid up to the 90th percentile, and (3) the amount of incentive

35

Dep. of Navin Barot (ECF No. 66-1), Exh. 4-F (June 11, 2010 Practice Review); Dep. of
Navin Barot (ECF No. 66-1), Exh. 4-I (July 13, 2010 Gastroenterology Medical Director
Meeting); Dep. of Navin Barot (ECF No. 66-1), Exh. 4-J (August 4, 2010).

36

While the minutes of these meetings reflect discussions over Dr. Barot’s performance as
medical director, Dr. Barot denies that his performance as medical director was
unsatisfactory. Pl.’s Resp. ¶ 69, at 13. However, as explained more fully below, this dispute
as to whether his performance as medical director was unsatisfactory does not preclude
summary judgment as the plain language of the medical director contract stipulated at will
retention. See Susquehanna Health System Medical Director of the Gastroenterology
Program Agreement (ECF No. 66-1), Exh. 4-A.

37

Dep. of Ronald Reynolds (ECF No. 66-5), Exh. 8-A.

38

Dep. of William C. McCauley, M.D. (ECF No. 65-4), at 74:6-9.

39

Dep. of Jim Turri (ECF No. 65-3), Exh. 2-F (December 2, 2010 Memo).

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compensation that would go to the Compensation Committee for approval to pay
above the 90th percentile in accordance with the terms of the Employment
Agreement.40 Specifically, this December 2, 2010 Memo detailed that, while Dr.
Barot was entitled to (and was automatically paid) incentive compensation of
$216,747 (up to the 90th percentile of $777,340), the balance ($160,560) would be
the Physician Compensation Committee for approval.41 A later email from Mr.
Turri to Dr. Barot indicates that he had asked Kenneth Young, Vice President of
Legal Services for SHS his opinion regarding whether Dr. Barot should receive
RVU credit for conscious sedation when included within other medical services.42
Mr. Turri further wrote:
In the mean time I have attached the documentation from the 2010 CPT
book Appendix H which is a summary of CPT codes that include moderate
(conscious) sedation. This is what I am basing our interpretation on and you
can read for yourself what it states:
“Since these services include moderate sedation, it is not appropriate for the
same physician to report both the service and the sedation codes 9914399145. It is expected to that if conscious sedation is provided to the patient
as part of one of those service(sic), it is provided by the same physician who
is providing the service.”43
Thereafter, on March 7, 2011, Dr. Barot sent Steven Johnson, CEO of
Susquehanna Health System, a Notice of Material Breach of his Physician
40

Id.

41

Id.

42

Dep. of Jim Turri (ECF No. 65-3), Exh. 2-G.

43

Id.

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Employment Agreement and (90) day Notice to Terminate Employment.44 While
this Notice detailed as areas of breach both the failure to include within Dr. Barot’s
RVU calculation moderate conscious sedation amounts under CPT codes 99144
and 99145 and failure to present the request to the Compensation Committee, it
omitted any reference to an alleged failure by Defendants to include him in the
interview process for subordinates or to allow him to attend a CME.45 Two days
later, on March 9, 2011, Dr. Barot, through his attorney, sent a second letter to
Defendants rescinding the March 7, 2011 notice of breach.46 The Compensation
Committee then met on March 10, 2011, and approved incentive compensation for
the plaintiff above the 90th percentile in the amount of $160,559.73.47
Dr. Barot, through his counsel, then sent a second letter to Defendants on
April 15, 2011 again notifying them of a claim of breach, and a thirty day notice of
intent to terminate.48 This Notice detailed as an area of breach the failure to
include within Dr. Barot’s RVU calculation moderate (conscious) sedation
amounts under CPT codes 99144 and 99145, and for the first time included
allegations that he was the subject of illegal discrimination.49 Lacking again was
44

Dep. of Navin Barot (ECF No. 66-1), Exh. 4-V.

45

Id.

46

Dep. of Navin Barot (ECF No. 66-1), Exh. 4-W.

47

Dep. of Steve Johnson (ECF No. 66-2), Exh. 1-D.

48

Dep. of Navin Barot (ECF No. 66-1), Exh. 4-Y.

49

Id.

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any reference to an alleged failure by Defendants to include him in the interview
process for subordinates or to allow him to attend a CME.50
Following this Notice of Breach and Termination, on May 2, 2011, Brian
Buttorff sent a memo to Dr. Barot regarding a recent request for PTO and CME
time off.51 This May 2, 2011 memo denied Dr. Barot’s request to attend a CME,
noting, inter alia:
You are leaving the medical group with only a thirty day notice and
we will need coverage during the last two weeks of your notice.
You have not provided any specific information on what conference
you plan on attending with enough notice for our serious
consideration.52
Dr. Barot thereafter responded in an email later that date providing details of the
CME scheduled for May 7-10, 2011.53 Mr. Buttorff, via email of May 3, 2011,
approved Dr. Barot’s request to attend the CME on May 7-10, 2011.54
On May 12, 2011, the Compensation Committee again met to discuss Dr.
Barot’s request for compensation in excess of the 90th percentile for RVU credit for
the additional codes for conscious sedation.55 Meeting Minutes from this

50

Id.; Pl. Resp. ¶ 137, at 22.

51

Defs.’ SUMF ¶ 138, at 26; Pl.’s Resp. ¶ 138, at 22.

52

Dep. of Brian Buttorff (ECF No. 66-4), Exh. 7-B (May 2, 2011 Memo from Brian Buttorff
to Navin Barot).

53

Id. (May 2, 2011 Email from Dr. Barot to Brian Buttorff).

54

Id. (May 3, 2011 Email from Brian Buttorff to Navin Barot).

55

Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H (May 12, 2011 SHMG Physician Compensation
Committee Meeting Minutes).

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Compensation Committee meeting demonstrate Mr. Turri made a presentation
which included a detailed two page report and attachments56 from SHS’s legal
counsel.57 The Report entitled “Physician Compensation Exceptions: Moderate
Conscious Sedation RVU Credit Issue” included the following guidance:
The following outlines the key facts to be considered in this review:
a) Dr. Barot administers moderate (conscious) sedation (IVCS)
when doing endoscopy studies. The codes that are in question
are 99143-99145.
b) Dr. Barot feels he should receive credit for all IVCS
WRVU’s as per the attachment on his contract (see Attachment
1, page 2) regardless of the CMS policy that clearly states those
codes cannot be billed for separately by the same physician
performing the procedure as they are included in the procedure
codes. The e-mail from Mr. Turri to Dr. Barot (Attachment 1,
page 1) dated May 13, 2009 (prior to Dr. Barot’s commitment
to join SHMG) refers to commonly used GI procedures and
RVU values and also explains that details need to be worked
out for RVU values based on how to bill and how SHMG
would be paid for them.
c) After completion of his first year Dr. Barot was paid an
incentive according to his contract terms of $216,747 which
brought him to the 90th percentile. Dr. Barot requested
additional payment and credit for the IVCS included in
procedures he performed. SHMG took the position that no
additional credit was due as per CMS.
56

Included in the attachments is a December 8, 2010 email from Kenneth Young, Esquire, Vice
President of Legal Services for SHS to Mr. Turri, which appears to be in response to Dr.
Barot’s questions concerning the December 2, 2010 Memo concerning incentive
compensation for the contract year. See Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H,
Attachment 3. In this email, Mr. Young explains that RVUs associated with two different
codes cannot be counted if Medicare provides that only one of those codes is reimburseable,
and the other is bundled into the billable code. Id.

57

Id.

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According to CMS and as documented in the 2010 CPT code
book, the endoscopy services provided by Dr. Barot in question
“include moderate sedation and it is not appropriate for the
same physician to report both the service and the sedation codes
99143-99145. It is expected that if conscious sedation is
provided to the patient as part of one of these services, it is
provided by the same physician who is providing the service”.
(See Attachment 2).
d) Management’s interpretation of this and the reason
additional IVCS WRVU credit was not provided for these
endoscopy procedures is the credit is already included within
the procedural code performed, documented and paid for
accordingly.
e) According to SH Legal services: “for an RVU to be
“counted”, it must be for a service reimbursable by Medicare.
You can’t count the RVU’s associated with two different codes
if Medicare provides that only one of those codes is
reimbursable, and the other must be bundled into the billable
code, which would result in a multiplier effect” (See related
correspondence Attachment 3).58
The Compensation Committee thereafter reached the following factual
conclusions:
 There have been a number of reported problems and performance issues
with Dr. Barot’s practice style including very low patient satisfaction
scores and many referring physician complaints. Dr. Barot’s work
volume trend has been declining as a result.
 This Committee has determined that Dr. Barot’s total compensation
would exceed fair market value if any additional compensation payments
were made which is contrary to the obligation of a non-profit tax-exempt
organization.

58

Id.

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 According to the document provided by Mr. Turri, paying the additional
compensation requested by Dr. Barot would be a ratio at least 1.41 times
higher than the MGMA 90th percentile. A ratio of this magnitude is not
even reported by the MGMA survey.59
Attorney Ann Pepperman, a member of the Compensation Committee, made
a motion to deny the request for additional compensation because (1) Dr. Barot’s
productivity and overall performance does not justify paying a ratio that much
higher over the 90th percentile of the MGMA compensation survey, and (2) this
level of compensation would exceed the amount considered reasonable by a tax
exempt organization.60 The motion thereafter received unanimous approval.61
This decision of the Compensation Committee was relayed to Dr. Barot in a letter
from Mr. Turri, dated May 31, 2011.62
III.

LAW

“One of the principal purposes of the summary judgment rule is to isolate
and dispose of factually unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this purpose.”63 Summary
judgment is appropriate where “the movant shows that there is no genuine dispute

59

Id.

60

Id.

61

Id.

62

Dep. of Navin Barot (ECF No. 66-1), Exh. 4-AA.

63

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

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as to any material fact and the movant is entitled to judgment as a matter of law.”64
“Facts that could alter the outcome are ‘material facts,’ and disputes are
‘genuine’ if evidence exists from which a rational person could conclude that the
position of the person with the burden of proof on the disputed issue is correct.”65
“A defendant meets this standard when there is an absence of evidence that
rationally supports the plaintiff’s case.”66 “A plaintiff, on the other hand, must
point to admissible evidence that would be sufficient to show all elements of a
prima facie case under applicable substantive law.”67
“[T]he inquiry involved in a ruling on a motion for summary judgment or for
a directed verdict necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits.”68 Thus, “[i]f the defendant in a
run-of-the-mill civil case moves for summary judgment or for a directed verdict
based on the lack of proof of a material fact, the judge must ask himself not
whether he thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence

64

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

65

Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex Corp., 477 U.S. at 322).

66

Clark, 9 F.3d at 326.

67

Id.

68

Liberty Lobby, Inc., 477 U.S. at 252.

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presented.”69 “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.”70 “The judge’s inquiry, therefore,
unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon whom the onus of proof is
imposed.’”71 Summary judgment therefore is “where the rubber meets the road”
for a plaintiff, as the evidentiary record at trial, by rule, will typically never surpass
that which was compiled during the course of discovery.
“[A] party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”72 “[R]egardless of whether the
moving party accompanies its summary judgment motion with affidavits, the
motion may, and should, be granted so long as whatever is before the district court

69

Id.

70

Id.

71

Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

72

Celotex Corp., 477 U.S. at 323 (internal quotations omitted).

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demonstrates that the standard for the entry of summary judgment, as set forth in
Rule 56(c), is satisfied.”73
Where the movant properly supports his motion, the nonmoving party, to
avoid summary judgment, must answer by setting forth “genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”74 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by:
(i) “citing to particular parts of materials in the record” that go beyond “mere
allegations”; (ii) “showing that the materials cited do not establish the absence or
presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.”75
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’”76 Moreover, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact

73

Id.

74

Liberty Lobby, Inc., 477 U.S. at 250.

75

Fed. R. Civ. P. 56(c)(1).

76

Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,
J.).

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undisputed for purposes of the motion.”77 On motion for summary judgment,
“[t]he court need consider only the cited materials, but it may consider other
materials in the record.”78
“[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”79 “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.”80 “If the evidence is merely colorable . . . or is not significantly
probative, summary judgment may be granted.”81
Finally, when presented with cross-motions for summary judgment, such as
here, a district court should consider the motions separately and apply the
appropriate burden of production to each motion.82
IV.

ANALYSIS

Count V, or breach of contract, is the sole remaining claim within Dr.
Barot’s Complaint. Under Pennsylvania law, the three elements of a breach of
contract claim are: (1) the existence of a contract, including its essential terms; (2)
77

Fed. R. Civ. P. 56(e)(2).

78

Fed. R. Civ. P. 56(c)(3).

79

Liberty Lobby, Inc., 477 U.S. at 249.

80

Id.

81

Id. at 249–50 (internal citations omitted).

82

See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).

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a breach of a duty imposed by that contract; and (3) resultant damages.83 Here,
there is no dispute that two contracts exist between the parties, and, to the extent
there is breach, Dr. Barot has established resultant damages. The dispute therefore
centers on whether Defendants have breached the language of the two operative
employment-related contracts.
Dr. Barot specifically alleges that Defendants have breached both (1) his
“Physician Employment Agreement” with Defendants Susquehanna Physician
Services d/b/a Susquehanna Health Medical Group, and (2) his “Medical Director
of the Gastroenterology Program” contract with Susquehanna Health Services, as
contracting agent for Divine Providence Hospital of the Sisters of Christian
Charity, and Susquehanna Physician Services. In supporting of this contractual
claim, Dr. Barot alleges Defendants breached their obligations through the
following conduct: (1) refusing to allow Dr. Barot to attend continuing education;
(2) refusing to allow Dr. Barot the opportunity to interview and hire candidates that
would work for him; (3) refusing to properly compensate Dr. Barot for his RVU’s
and incentive compensation; (4) improperly terminating Dr. Barot from his
position as Susquehanna Health System Medical Director of the Gastroenterology
Program; (5) discriminating against Dr. Barot on the basis of his race and national

83

See CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. Ct. 1999).

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origin; and (5) failing to pay Dr. Barot severance payments due under the terms of
the Physician Employment Agreement.84
Defendants, in turn, move for summary judgment on Count V, arguing that
there exist no genuine disputes as to material fact on this claim. In support of this
contention, Defendants model their argument according to the above alleged
breaches, methodically addressing and dispelling each instance in accordance with
the relevant contractual language. My analysis of Defendant’s Motion will largely
follow that organization.
A.

Breach of the Physician Employment Agreement Predicated
on Defendants’ Claims Regarding Continuing Education
and Staff Decisions

Defendants first move for summary judgment on Dr. Barot’s breach of
contract claim to the extent it is based on their alleged refusal to allow him to
attend continuing education courses or to participate in the interview of employees
working for him. Defendants specifically aver that Dr. Barot has not adduced
evidence to support these allegations, and, even assuming the veracity of these
allegations, they do not amount to a material breach of the contract. I agree with
Defendants that, to the extent Dr. Barot’s breach of contract claim is based on this
conduct, no reasonable jury could find in his favor and the claim therefore fails as
a matter of law.
84

Compl. (ECF No. 1) ¶ 58, at 14.

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This theory of breach of contract fails for lack of supporting evidence. As
previously noted, the Physician Employment Agreement provided Dr. Barot “the
opportunity to attend continuing medical education programs for a maximum of
ten (10) business days annually.”85 Here, the factual record contains one instance
following his final notice of termination which supports Dr. Barot’s contention that
his request to attend a CME was denied.86 The record reflects, however, Dr. Barot
later being given the opportunity to attend this CME held on May 7-10, 2011.87
There is a paucity of any further evidence supporting his Dr. Barot’s conclusory
claim that he was denied the opportunity to attend a CME. Therefore, because
mere conclusory allegations and self-serving testimony cannot be used to avoid
summary judgment when uncorroborated and contradicted by other evidence of
record, this allegation of breach is insufficient for presentation to a jury.88
Second, there is also a lack of any factual support for Dr. Barot’s claim that
he was denied the opportunity to interview candidates working for him.
Specifically, in his deposition, Dr. Barot fails to identify with specificity instances
85

Id. ¶ 11.

86

Dep. of Navin Barot (ECF No. 66-1) at 113:21—114:9.

87

Dep. of Brian Buttorff (ECF No. 66-4), Exhibit 7-B.

88

Thomas v. Delaware State Univ., 626 Fed.Appx. 384, 389 n.6 (3d Cir. 2015) (nonprecedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is
insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd. v. FES, 301 F.3d 83, 95 (3d
Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion,
which we have held is inadequate to satisfy the movant's burden of proof on summary
judgment.”).

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where he was denied the opportunity to interview support personnel.89 Dr. Barot
instead cites Defendants’ failure to include him in the interview process of his
successor as Medical Director—Dr. Schaefer.90 The plain language of Section 13,
however, stipulates that “SHMG and Physician agree to jointly participate in the
interview, selection, and performance appraisal of all such support personnel.”91
Dr. Schaefer, at best a professional of equal status, fails to fit the criterion of
“support personnel.”
Third and finally, Dr. Barot’s breach of contract claim premised on these
alleged breaches fails for lack of compliance with Section 20 of the Physician
Employment Agreement, governing “Termination.” That Section states the
following:
In the event of a material breach of this Agreement by either party, the
non-breaching party shall give the breaching party written notice
specifying the default along with notice to terminate within thirty (30)
days. The breaching party shall have thirty (30) days within which to
cure the default. If such a default is not cured within that time, this
Agreement shall terminate.92
Here, even assuming that the above failures concerning CMEs and staffing
constitute material breaches, the factual record contains no evidence that Dr. Barot
informed Defendants and provided them an opportunity to cure these breaches in
89

Dep. of Navin Barot (ECF No. 66-1) at 119:2-9.

90

Id. at 120:1-4.

91

Physician Employment Agreement (ECF No. 1-1) ¶ 13, at 8 (emphasis added).

92

Id. ¶ 19, at 11–12.

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accord with the plain language of his Physician Employment Agreement. Indeed,
neither the March 7, 2011 nor the April 15, 2011 notices of termination contain
any mention of CME or staffing breaches by Defendants.93 Therefore, based on
the above sufficient and legally independent reasons, Dr. Barot’s breach of contract
claim fails to the extent based on these grounds.
B.

Breach of the Physician Employment Agreement Predicated
on Defendants’ Failure to Compensate Dr. Barot in
Accordance with the Incentive Compensation Provision

Defendants next move for summary judgment on Dr. Barot’s breach of
contract claim to the extent it is based on a failure to fully compensate him in
accordance with the incentive provisions of his Physician Employment Agreement.
As noted above, the Incentive Compensation provision of the Physician
Employment Agreement specifically states the following:
In order to promote the efficient operation of Physician’s medical
practice and the availability and provision of high quality medical
service to the community served by SHMG, Physician shall be
eligible to participate in an incentive compensation program in the
first three years of the Agreement. If Physicians WRVU’s at the end
of the contract year exceed 10,000 WRVU’s, physician shall receive
Additional Compensation, subject to the limitations set forth in
Section 7 below . . . 94

93

See Dep. of Navin Barot (ECF No. 66-1), Exh. 4-V; Dep. of Navin Barot (ECF No. 66-1),
Exh. 4-Y.

94

Susquehanna Health Medical Group Physician Employment Agreement (ECF No. 1-1), at 3.

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Section 7 of the Physician Employment Agreement, referenced in the above
passage as a limitation on allowable incentive compensation, further provides the
following:
The total amount of Base Salary plus Incentive and Quality Bonus
Compensation payable by SHMG to Physician in any year of this
Agreement shall not exceed the 90th percentile of the most recently
available comparable Compensation Survey published by the Medical
Group Management Association for physicians in the same specialty
as Physician. If Physician’s productivity, expertise and overall job
performance suggests that his compensation should exceed the 90th
percentile compensation limitation set forth herein, it will be
presented to the Compensation Committee of the SHMG Board of
Directors for consideration and a determination in accordance with
SHMG policy and procedure. However, Physician’s total
compensation shall not exceed such amount as would constitute
reasonable compensation when paid by an organization, such as
SHMG, which is a tax-exempt organization under Section 501 (c)(3)
of the Code.95
Defendants aver that the undisputed factual record of this case demonstrates that
they exercised the discretion afforded by Section 7 in good faith as required by
contractual principles through the presentation of Dr. Barot’s requests to the
Physician Compensation Committee, and the Committee’s subsequent decision in
accordance with allowable considerations.
Dr. Barot, however, disputes the extent of discretion which the contractual
provisions of the Physician Employee Agreement afforded, and argues that
Defendants reached their denial of additional compensation based on improper
95

Id. at 4–5.

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considerations. He argues instead that promises made to induce him to work for
SPS/SHMG established Committee procedure in that if he was doing the work, he
would get paid so long as such payment would not violate the Internal Revenue
Code.96 Dr. Barot therefore contests what he terms Defendants’ argument in favor
of “unfettered discretion.”97 He specifically avers that consideration of “physician
compliance audits, physician performance and referrals, or a physician’s
reputation, behavior or staff turnover” by Defendants’ Compensation Committee at
its May 12, 2011 meeting was an improper exercise of discretion, and that such
consideration was instead simply a “condition precedent” to presentation to the
committee.98 Furthermore, while the Compensation Committee stated that the
compensation sought was not reasonable when paid by a tax-exempt organization
96

Pl.’s Br. at 9.

97

Introduction of this parol evidence, however, necessarily requires a finding that the Physician
Employment Agreement was not fully integrated, or was patently or latently ambiguous. As
a matter of law, it was neither. First, I note that, given the presence of Section 26’s
integration clause, the Physician Employment Agreement was a fully integrated document.
See Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)(“An integration
clause which states that a writing is meant to represent the parties’ entire agreement is also a
clear sign that the writing is meant to be just that and thereby expresses all of the parties’
negotiations, conversations, and agreements made prior to its execution.”). Second, the extent
that Dr. Barot is trying to establish an ambiguity, and that effort is unclear, I note that the
terms “policy” and “procedure” are not patently ambiguous as they directly refer to the
“Susquehanna Health Medical Employed Physician Compensation” Policy—a citation Dr.
Barot directly makes. See Pl.’s Br. at 9–10. Second, the proffered evidence by Dr. Barot is
not sufficient to establish a latent ambiguity as it fails to address “the parties’ objectively
manifested ‘linguistic reference’ regarding the terms of the contract” and instead simply
supports Dr. Barot’s expectations concerning the contract. Bohler-Uddeholm America, Inc. v.
Ellwood Group, Inc., 247 F.3d 79, 93 n.3 (3d Cir. 2001) (“Evidence regarding a party’s
beliefs about the general ramifications of the contract would not be the right type to establish
latent ambiguity.”).

98

Pl.’s Br. at 9–10.

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such as SPS/SHMG, Dr. Barot counters that the Compensation Committee
incorrectly found this limitation.99
Section 205 of the Restatement (Second) of Contracts provides: “Every
contract imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement.”100 Our Court of Appeals has noted however
that, while every contract in Pennsylvania imposes upon each party an implied
duty of good faith, that duty is “not limitless,” and “there must be some
relationship to the provisions of the contract itself to invoke the duty of good
faith.”101 “A breach of the implied duty of good faith is, therefore, a breach of the
contract between the parties. Whether a party failed to exercise good faith in its
performance of the contract is a fact-based inquiry.”102 While the Pennsylvania
Superior Court has noted that a complete catalogue of types of bad faith is
impossible, certain “strains” of bad faith repeat.103 These examples include:
evasion of the spirit of the bargain, lack of diligence and slacking off,
willful rendering of imperfect performance, abuse of a power to

99

Id. at 11.

100

RESTATEMENT (SECOND) CONTRACTS § 205 (quoted by W. Run Student Hous. Assocs., LLC
v. Huntington Nat’l Bank, 712 F.3d 165, 170 (3d Cir. 2013)).

101

W. Run Student Hous., 712 F.3d at 170.

102

Haywood v. University of Pittsburgh, 976 F.Supp.2d 606, 627 (W.D.Pa. 2013).

103

Stamerro v. Stamerro, 889 A.2d 1251, 1259 (Pa. Super. Ct. 2005)(citing Somers v. Somers,
613 A.2d 1211, 1213 (1992)).

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specify terms, and interference with or failure to cooperate in the other
party’s performance.104
Importantly, for purposes of the instant motion, “ ‘[t]he covenant of good faith may
also be breached when a party exercises discretion authorized in a contract in an
unreasonable way.’ ”105
At its May 12, 2011 meeting, the Compensation Committee found that Dr.
Barot’s request for additional compensation was “unreasonable” because:
 There have been a number of reported problems and performance issues
with Dr. Barot’s practice style including very low patient satisfaction
scores and many referring physician complaints. Dr. Barot’s work
volume trend has been declining as a result.
 This Committee has determined that Dr. Barot’s total compensation
would exceed fair market value if any additional compensation payments
were made which is contrary to the obligation of a non-profit tax-exempt
organization.
 According to the document provided by Mr. Turri, paying the additional
compensation requested by Dr. Barot would be a ratio at least 1.41 times
higher than the MOMA 90th percentile. A ratio of this magnitude is not
even reported by the MGMA survey.106
Given the discretionary language of Section 7 of the Physician Employment
Agreement governing incentive compensation and having considered the parties’
arguments carefully in light of the factual record, I find that no evidence exists
104

Id.

105

Montanez v. HSBC Mortg. Corp., 876 F.Supp.2d 504, 513 (E.D.Pa. 2012) (quoting Phila.
Plaza–Phase II v. Bank of Am. Nat'l Trust & Savs. Assoc., No. 3745 April Term 2002, 2002
WL 1472337, at *6 (Pa.Ct.C.P.Phila.Cnty. June 21, 2002)).

106

Id. at 13 (citing SHMG Physician Compensation Committee May 12,2011 Meeting Minutes
(ECF No. 62-25)).

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from which a reasonable jury could conclude Defendants exercised their discretion
in bad faith. My reasoning is as follows.
First, while Dr. Barot essentially argues that the Compensation Committee
acted in bad faith by not awarding RVU credit for moderate (conscious) sedation
CPT codes 99144 and 99145. That argument of bad faith is, however, dispelled by
the factual record. Indeed, long a point of contention between the parties, the
Minutes of the May 12, 2011 Compensation Committee meeting indicate that Mr.
Turri presented to the Compensation Committee Dr. Barot’s argument that he
should be credited for these conscious (moderate) sedation codes in accord with an
attachment to his Physician Employment Agreement listing these codes, regardless
of whether bundled into another procedure.107 In the Report provided by Mr. Turri
and attached to the meeting minutes, providing credit for said codes when
performed in the context of another medical procedure is, however, described as in
contravention of Centers for Medicare and Medicaid Services (CMS) policy.108
That CMS policy, attached to the report as Attachment 2, contains a list of CPT
codes that include Moderate (Conscious) Sedation and states the following:
The following list of procedures includes conscious sedation as an
inherent part of providing the procedure. These codes are identified in
the CPT codebook with a symbol.

107

See Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H, Attachment 3.

108

Id.

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Since these services include moderate sedation, it is not appropriate
for the same physician to report both the service and the sedation
codes 99143-99145. It is expected that if conscious sedation is
provided to the patient as part of one of these services, it is provided
by the same physician who is providing the service.109
The Report provided by Mr. Turri advises that, because the endoscopy services
performed by Dr. Barot include moderate sedation, he cannot report both the
service and the sedation codes 99143-99145.110 Minutes from the Committee
meeting subsequently indicate “comprehensive review and discussion” of the
Report.111
Finally, even if the Compensation Committee erroneously accepted the
Report’s conclusion concerning the moderate (conscious) sedation codes, the
factual record reflects that the Committee nevertheless found, based on Dr. Barot’s
performance, that his “total compensation would exceed fair market value if any
additional compensation were made which is contrary to the obligation of a nonprofit tax-exempt organization.”112113 While Dr. Barot argues that the
Compensation Committee incorrectly found that any additional compensation
109

See Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H, Attachment 2.

110

See Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H, Attachment 2.

111

Id.

112

See Dep. of Jim Turri (ECF No. 65-3), Exh. 2-H (emphasis added).

113

Reasonable Compensation is defined in the “Susquehanna Health Medical Group Employed
Physician Compensation” policy as “compensation for services such as would ordinarily be
paid based upon an arm’s length, fair market value transaction for similar services by similar
organizations within the relevant geographic market at the date the contract for services is
made.” See Dep. of Steven Johnson (ECF No. 65-2), Exh. 1-A, “Susquehanna Health
Medical Group Employed Physician Compensation” policy ¶ 6, at 2.

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would be in violation of the Stark Regulations, Anti-Kickback Statute, and Internal
Revenue Code, the factual record does not contain evidence of a bad faith or
unreasonable consideration of these factors. Indeed, in reaching the conclusion
that the requested compensation would result in a ratio of “1.41 times higher than
the MGMA 90th percentile,” the Committee relied on the advice of counsel
pertaining to the legal issues presented. In the deposition of Compensation
Committee member Ann Pepperman, she explained the process as follows:
Q. Like we’re going to have a two-hour class and this is what the
Compensation Committee is about and this how we operate, things
like that?
A. Not that—let me put it this way. We have education, not
necessarily a, quote, training program. But we have education at each
of the meetings where whatever the issue is, we’re provided additional
information relating to that issue.114
In the particular circumstance of IRS regulations, Ms. Pepperman stated as
follows:
Q. Are you aware of anything particular with respect to the IRS that
would limit a certain percentile or a certain amount above?
A. It has to be fair market value. That’s all I can say. Compensation
has to be fair market value.
...
Q. What’s your understanding of what that means, fair market value?

114

Dep. of Ann Pepperman (ECF No. 66-7) at 9:3-10.

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A. I think it depends on the circumstances but what I would use would
be information from management and then what counsel’s advice
would be based on counsel’s explanation of what the law may be.115
In this matter, the factual record lacks any evidence from which a reasonable
jury could find that Defendants, through their Physician Compensation Committee,
breached the Physician Employment Agreement by exercising the discretion
afforded to them in bad faith or in an unreasonable manner, as contemplated by
Pennsylvania courts. Specifically, while Dr. Barot is correct that the
Compensation Committee was not afforded unfettered discretion, the minutes from
the meeting in question contain no evidence of an improper consideration not
contemplated by the Physician Employment Agreement. Therefore, to the extent
Dr. Barot’s breach of contract claim, or Count V, is based on breach of the
Incentive Compensation provision, summary judgment is hereby granted.
C.

Breach of the Medical Director of the Gastroenterology
Program Agreement Predicated on Dr. Barot’s Termination
from his position as Susquehanna Health System Medical
Director of the Gastroenterology Program

Defendants next move for summary judgment on Count V to the extent it is
based on Dr. Barot’s termination as Medical Director of the Gastroenterology
Program. Finding no genuine dispute of material fact demonstrating a breach of
the terms of his Medical Director contract, summary judgment will also be granted
on this theory.
115

Id. at 33:25—34:13; 35:6-12.

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First, as with Dr. Barot’s contentions concerning CMEs and staffing, I note
he has again failed to oppose the imposition of summary judgment on this theory
of breach contract and can be deemed to have abandoned its advancement.116
Second, even reaching the merits of this theory, Dr. Barot’s Medical Director
Contract states that the agreement will “terminable at will by either party upon
services of written notification of intent to terminate not fewer than ninety (90)
days prior to the effective date of termination.”117 Here, the undisputed facts
indicate that said notice was provided. Specifically, on November 2, 2010,
Defendants, acting through Vice President of Operations Ronald J. Reynolds, sent
Dr. Barot a written notice of his termination as Medical Director effective January
31, 2011.118 Therefore, while Dr. Barot believed that he could only be terminable
“for cause,”119 that belief is belied by the plain language of Medical Director
Contract, and incapable of altering that language by the contract’s integration

116

Bowser v. Bogdanovic, Civil Action No. 08-CV-847, 2010 WL 1462548 (M.D. Pa. Apr. 9,
2010) (“[W]hen the moving party argues that summary judgment should be granted in its
favor regarding a certain claim, the non-movant abandons that claim by failing to address it
in his response to the motion for summary judgment.”) (citing Seals v. City of Lancaster, 553
F.Supp.2d 427, 432-33 (E.D. Pa. 2008)). The closest Dr. Barot comes to addressing this issue
is at page 3 of his brief in opposition where he contests Defendants’ assertion that he did not
submit forms substantiating his work as Medical Director. See Pl.’s Br. at 3. He fails,
however, to address the consequence of this fact given the at-will nature of his employment
as medical director.

117

Medical Director Contract (ECF No. 1-2) ¶ 7, at 4–5.

118

Dep. of Ronald Reynolds (ECF No. 66-5), Exh. 8-A.

119

Dep. of Navin Barot (ECF No. 66-1) at 98:12-19.

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clause.120 Because no reasonable jury could find a breach of the Medical Director
Contract premised on this theory, summary judgment will be granted.
D.

Breach of the Physician Employment Agreement Predicated
On Discriminating against Dr. Barot on the Basis of His
Race and National Origin and Defendants’ Failure to Pay
Dr. Barot Severance Payment.

Finally, Defendants move for summary judgment on Count V to the extent it
is premised on racial or national origin discrimination against Dr. Barot or their
alleged failure to make a severance payment to him in accord with paragraph 20 of
his employment agreement. Finding no genuine dispute of material fact from
which a reasonable jury could find for Dr. Barot on these theories of breach,
summary judgment will be granted.
First, as noted above, Dr. Barot’s complaint as originally filed contained five
claims, three of which included employment discrimination claims under Title VII,
the Pennsylvania Human Relations Act, and 42 U.S.C. § 1981.121 Following the
completion of discovery, the parties filed a Stipulation of Dismissal of these counts
on October 10, 2016.122 Dr. Barot, however, now attempts to premise his breach of
contract claim, or Count V, on alleged acts of discrimination. This attempt is

120

Medical Director Contract (ECF No. 1-2) ¶ 9, at 5.

121

ECF No. 1.

122

ECF No. 56.

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unavailing as a breach of contract claim premised on such discrimination is
preempted by the Pennsylvania Human Relations Act.123
Moreover, although Dr. Barot now alleges that his Physician Employment
Agreement was breached by racially discriminatory events,124 his Notice of
termination on April 15, 2011 instances the first time Defendants were informed of
such a claim.125 This Notice fails to further delineate this claim of
discrimination,126 nor does Dr. Barot further substantiate it in his deposition
beyond merely tying perceived areas of contractual breach to his protected status.
Indeed, while Dr. Barot alleges being told of both his different “culture” and the
complaints of other Indian doctors, these perceptions are not substantiated by the
factual record.127 Rather, the only evidence of record on this issue, while
substantiating mention of “culture,” places this reference within the context of
parties’ difficulties with Dr. Barot as Medical Director and dispels any
discriminatory notion. Specifically, Gastroenterology Director Meeting minutes
from July 13, 2010 reflect the following:
123

See Keck v. Commercial Union Ins. Co., 758 F. Supp. 1034 (M.D.Pa. 1991)(finding that an
employee’s breach of contract claim, premised upon allegation that act of discrimination
based upon nonjob related handicap, was preempted by the Pennsylvania Human Relations
Act).

124

See Pl.’s Br. at 14-15.

125

See ECF No. 92-1 (April 21, 2011 Letter from Brian Bluth, Esquire, attorney for Defendants,
to Christian A. Lovecchio, Esquire, attorney for Dr. Barot).

126

See ECF No. 62-33 (April 15, 2011 Letter from Christian A. Lovecchio, Esquire, attorney for
Dr. Barot to Brian Bluth, Esquire, attorney for Defendants).

127

See Dep. of Navin Barot (ECF No. 66-1) at 174:7—176:3.

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Dr. Manchester discussed the medical director contract citing the “at
will” termination provision with 90 days notice.
...
Dr. Manchester noted that, in addition to objective measures of
success with medical directorship, there are also subjective
components such as “fit” and management culture that must work for
the welfare of the community and SH.
Dr. Manchester states that so far this does not feel like a good fit and
noted that Susquehanna Health is not required by any standards to
maintain a medical directorship for Gastroenterology and must
consider whether or not to continue this particular allocation of
limited resources.128
No other evidence exists corroborating Dr. Barot’s complaints of racial or national
origin discrimination.129 Therefore, because Dr. Barot’s unsupported allegations
are insufficient to create a genuine dispute of material fact on his breach of

128

Dep. of Lori Beucler (ECF No. 66-3), Exh. 6-C.

129

See Dep. of James Turri (ECF No. 65-3), at 135:7-20 (Q. Okay. I can take that back. Do you
ever recall in your time working with Dr. Barot Dr. Barot making any comments to you
regarding any feeling that he was being discriminated against in any way? A. No, never. Q.
Do you remember Dr. Barot ever making any comments to you to the effect that is he not
pale enough for his job? A. No. Q. Did anyone else ever tell you that Dr. Barot had said
anything to them about him believing that he was being discriminated against? A. I don’t
recall that, no.); Dep. of Neil Armstrong (ECF No. 66-2) at 9:1-10 (Q. Did Dr. Barot ever
make any comments to you that he felt like he was being discriminated against in any way
with respect to his employment at Susquehanna Health? A. No. Q. Did you ever have any
conversations with anyone else where those individuals indicated that Dr. Barot had said he
was being discriminated against? A. No.); Dep. of Lori Beucler (ECF No. 66-3) at 67: 4-10
(Q. In your managerial position since you’ve arrived at Susquehanna Health or even now that
you’ve moved over, have you ever received any complaints from any employees about what
they would be complaining about discriminatory treatment on the basis of their race or
nationality? A. Never.).

- 36 -

contract claim, I find that summary judgment is proper to the extent it is based on
discriminatory animus.130
Finally, Dr. Barot’s claim based on Section 20, or the “Severance” provision
of the Physician Employment Agreement, similarly fails. That section states the
following, in pertinent part:
In the event SHMG terminates this Agreement “without cause”, or in the
event Physician terminates this Agreement for material breach by
SHMG, SHMG agrees that it shall pay Physician a severance payment
(“Severance Payment”) equal to the monthly Base Salary paid by SHMG
to Physician during the twelve (12) calendar months immediately
preceding the month of Physician’s termination from employment.131
Here, having previously found the absence of a material breach by Defendants, no
obligation existed for Defendants to pay severance as requested by Dr. Barot.
Summary Judgment on Count V, to the extent based on this provision, is therefore
granted.
V.

CONCLUSION

130

See Thomas v. Delaware State Univ., 626 Fed.Appx. 384, 389 n.6 (3d Cir.
2015) (“[U]nsupported deposition testimony, which is contradicted by the record, is
insufficient to defeat summary judgment.”); Nat’l Labor Rel. Bd. v. FES, 301 F.3d 83, 95 (3d
Cir. 2002) (“[The plaintiff's] testimony ... amounts to an unsupported, conclusory assertion,
which we have held is inadequate to satisfy the movant's burden of proof
on summary judgment.”); Brooks v. Am. Broad. Cos., Inc., 999 F.2d 167, 172 (6th Cir.
1993)(“[T]he district court [is] not required to accept unsupported, self-serving testimony as
evidence sufficient to create a jury question.”); cf. Anderson, 477 U.S. at 252 (“The mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.”).

131

Physician Employment Agreement (ECF No. 1-1) ¶ 20, at 12.

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After drawing all reasonable inferences in favor of the non-moving party—
Dr.Barot—and finding that no genuine dispute as to material fact remains, I will
grant Defendants’ Motion for Summary Judgment in its entirety on all premises.
Plaintiff Dr. Barot’s Motion for Partial Summary Judgment is denied.
The Clerk of Court is directed to enter judgment in favor of Defendants and
to close this case.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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