Sholes v. Anesthesia Department et al, No. 1:2019cv00022 - Document 109 (S.D. Ga. 2023)

Court Description: ORDER granting in part and denying in part 82 Motion to exclude Plaintiff's Expert Witness Testimony; granting 83 Motion for Summary Judgment; and directing the Clerk to enter judgment in favor of Defendant, terminate all other pending motions, if any, and close this case. Signed by Chief Judge J. Randal Hall on 03/20/2023. (jlh)

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Sholes v. Anesthesia Department et al Doc. 109 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 1 of 63 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION * TIPTON SHOLES, M.D., * Plaintiff, * * V. * CV 119-022 * BOARD OF REGENTS OF THE * UNIVERSITY SYSTEM OF GEORGIA * d/b/a AUGUSTA UNIVERSITY, * * Defendant. * ORDER Presently pending before the Court are Defendant's motion to exclude (Doc. 82) and Defendant's motion for summary judgment (Doc. 83). exclude is For the following reasons, Defendant's motion to GRANTED IN PART and DENIED IN PART and Defendant's motion for summary judgment is GRANTED. I. BACKGROUND Plaintiff (Doc. 1.) originally He then filed amended suit his on February complaint 13, twice, 2019. and the operative Amended Complaint was filed March 2, 2021 (Am. Compl., Doc. 50). The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 & 1391. Plaintiff was a (Id. at 2-3.) resident in the Anesthesiology and Perioperative Medicine Department's (the "Department") residency Dockets.Justia.com Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 2 of 63 program at Augusta University's ("AU") Medical College Georgia ("MCG") from July 1, 2016 until June 30, 2018. 83-2, at 1.)^ Dr. Stephen Meiler is the Chairman of (Doc. of the Department at MCG, and Dr. Mary Arthur is the residency program director for the Department and serves as the point of contact for residents. in their (Id.) (Id. at 2.) requirements and MCG's residency programs all differ criteria for selecting residents. The Anesthesiology program typically takes three years to complete, not including an internship year. (Id.) The educational and training aspects of the program are overseen by the American Board of Anesthesiology ("ABA") and the Accreditation Council for Graduate Medical Education ("ACGME"). (Id.) The Anesthesiology program has a defined academic schedule, and residents are expected to attend at least eighty percent of all scheduled didactic sessions, including lectures, simulation training, problem-based learning, and anything else educational. (Id. at 3.) requirement, competency of If they residents receive do an professionalism not satisfy this "unsatisfactory" reported to the in attendance the ABA. core (Id.) ^ The Court notes that the majority of facts making up the Background section of this Order are based on Defendant's statement of material facts (Doc. 83- 2) and Plaintiff's response thereto (Doc. 89-3). Plaintiff additionally filed a 280-paragraph statement of "additional material facts" with his response to the motion for summary judgment (Doc. 89-2); however, the Court finds many to be redundant, unnecessary, and ultimately argumentative, and therefore omits many of Plaintiff's additional assertions. Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 3 of 63 During their operating room work, which is a large component of the residency program, residents receive input from multiple data sources and must be able to quickly synthesize the data and act swiftly to intervene. First year (Id. at 4.) residents are expected to arrive at work no later than 6:30 each morning, have their operating room set up, and (Id. have at completed 5.) interviewing Residents are their patients instructed from by 7:00 the A.M. start of residency how important it is to be on time at the beginning of their shifts and when returning from breaks. (Id.) Being on time to set up a room is more critical for residents because they are unlikely to anticipate many contingencies that could arise as they have not yet been exposed to enough situations to foresee all possibilities. between being resident. an (Id. at 7.) anesthesiologist (Id. at 9.) There is a difference and an anesthesiology All MCG anesthesiology residents work in a hospital setting for the majority of their training while not all will end up working in a hospital after; however, the purpose of the residency program is to train residents to serve the anesthesiology profession is all customary ways. (Id.) As residents progress, they are expected to show increasing levels of competency and autonomy to ensure they are ready for independent practice at the culmination of training. 11.) Residents are evaluated by the faculty, (Id. at mid-level Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 4 of 63 providers, and senior residents and are supposed to receive immediate verbal and written feedback from the Department. at 12; Doc. 89-3, at 22.) are compiled ("CCC"), and which given meets (Id. Eventually, a resident's evaluations to the every Clinical six months residents are satisfactorily progressing. Competency to Committee evaluate whether {Doc. 83-2, at 12.) The CCC shares its evaluations with the ABA, and when a resident receives an unsatisfactory grade on an ABA six-month report, the resident is place resident receives on two remediation. consecutive (Id. at 12-13.) unsatisfactory If reports, a the ABA requires the resident extend his or her training beyond the three-year standard timeline by at least six months. 13.) (Id. at A resident's performance is viewed as a whole, not as single isolated events; in fact, most residents have at least some complaints during their residency opportunity to correct the issues. but are allowed an (Id.) At the beginning of Plaintiff's residency. Dr. Arthur was contacted by some faculty Plaintiff's performance. and senior residents (Id.; Doc. 89-3, at 24.) regarding In July 2016, Dr. Arthur and the chief resident met with Plaintiff to discuss his performance, including using his cell phone during a case and his timeliness. Doc. 80, at 98-101.) (Doc. 83-2, at 14; Doc. 89-3, at 25; In the meeting, the Department's expectations for first year residents, including preparing the Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 5 of 63 night before and the importance of starting cases on time, were reviewed with Plaintiff. (Doc. 83-2, at 14.) In November 2016, Plaintiff again met with Dr. Arthur to discuss his performance, and they implemented a plan for him to complete daily time logs. (Id.; Doc. 89-3, at 26.) Nevertheless, the Department continued to receive complaints about Plaintiff and he continued to miss didactic sessions, despite his required attendance. at 15; Doc. 89-3, at 27.) overall clinical (Doc. 83-2, As a result. Plaintiff was given an competence grade of unsatisfactory for the period running from July 1, 2016 through December 31, 2016, and this was submitted to the ABA. stated Plaintiff was unsatisfactory "demonstrates honesty, responsibility," "learns "reacts to stressful been an issue of from experience, situations in and an problem." In an the The report areas of: reliability, and knows and limits," appropriate manner." The ABA report further stated: "there continued tardiness, during this 6 months [sic] period. faculty alike. in integrity, (Id.; Doc. 89-3, at 28.) has (Doc. 83-2, at 15.) lack of engagement This impacts his peers and His lack of situational awareness, preparedness unwillingness to follow directions is an ongoing (Doc. 83-2, at 15; Doc. 89-3, at 28-29.) January Knowledge nationally. Test 2017, and Plaintiff only scored (Doc. 83-2, at 16.) took in the the Anesthesiology first percentile During a March 2017 emergency Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 6 of 63 CCC meeting, remediation "seems to the CCC plan. be decided (Id.) to The disconnected, place CCC Plaintiff decision apathetic, on a noted not focused 90-day Plaintiff on the big picture when it comes to patient care in the [operating room] and lacks critical thinking skills." 31.) (Id. at 17; Doc. 89-3, at The CCC presented him with his remediation plan on March 15, 2017. terms: (Doc. 83-2, at 17.) "Plaintiff was not The plan included the following allowed to be left alone with a patient, was required to be paired with a senior resident, was required to remain on the general [operating room] rotations and not allowed to move forward with specialty rotations, and was ^not allowed to take overnight or weekend calls for the time being for patient safety.'" (Id.) The remediation plan also required: daily electronic evaluations from each faculty member Plaintiff worked with in the general operating room, weekly mandatory meetings with his faculty mentor to discuss his daily evaluations and progress, close supervision by faculty assigned to his operating room, a requirement Plaintiff discuss all patient care decisions and management plans with the attending physician on service, completion of various reading assignments and essays on administrative professionalism, duties (including staying compliant documenting duty with all hours and keeping case logs current), and attending on-campus courses for "Self-Managing Time and Productivity" and "If Disney Ran Your Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 7 of 63 Hospital." (Id. at 17-18.) As part of remediation, Plaintiff was warned that if patient safety was ever compromised under his care, he could be removed from clinical duties, and if another serious complaint was lodged against him by a Department member or a patient, it would be referred to the Department Chair and would constitute possible grounds for program dismissal. at 18.) month Further, remediation, Plaintiff if was there warned was a that after lack of the (Id. three- improvement or insufficient improvement in his performance, remediation would be discontinued, and the Department's only alternative would be to proceed with formal disciplinary action that could result in his termination or non-renewal of his residency contract. Plaintiff was also referred to Dr. James (Id.) Foster for a fitness for duty evaluation, and Dr. Foster reported he saw no evidence of significant issues and predicted future excellent performance by Plaintiff. (Id. at 18-19.) Plaintiff's wife scheduled further evaluations and he was seen by Dr. Vaughn McCall, a practicing psychiatrist at AU and an Executive Dean of MCG, who with narcolepsy in April 2017. Prior to this diagnosis. ultimately diagnosed Plaintiff (Id. at 19; Doc. 89-2, at 10.) Plaintiff never considered he had narcolepsy, despite having interesting sleep patterns most of his life. (Doc. 83-2, at 19.) Plaintiff informed the Department of his narcolepsy diagnosis, and after meeting with Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 8 of 63 Dr. Arthur, Dr. Meiler, and Dr. Walter Moore on May 5, 2017, they made the group decision to place Plaintiff on a 90-day medical leave of absence so he could have time to regulate his medications before returning to residency. (Id. at 19-20.) Plaintiff agreed during the meeting to sign a release for Dr. McCall to be permitted to speak with Dr. Arthur, Dr. Meiler, and Dr. Moore about his diagnosis; however, actually signed until June 29, 2017. 36.) the release was not (Id. at 20; Doc. 89-3, at Dr. McCall continued to treat Plaintiff while on medical leave and on July 17, 2017 Plaintiff informed Dr. Meiler and Dr. Arthur that he was cleared to return to the Department with no restrictions effective August 1, 2017. (Doc. 83-2, at 20.) He also informed Dr. Meiler and Dr. Arthur he would not require or request any schedule or work accommodations, and that medication is his only accommodation. (Id.) Dr. Arthur emailed Dr. McCall for clarification, and Dr. McCall informed her and Dr. Meiler that he had not cleared Plaintiff 21.) The doctors researched to return to and could not work. find (Id. at medical literature discussing doctors with narcolepsy, or whether such diagnosis affected resident. (Id.) an Dr. anesthesiologist or anesthesiology McCall could not say with a reasonable degree of certainty whether Plaintiff would be able to function as an independent anesthesia provider during nighttime (Id.; Doc. 89-3, at 38.) 8 hours. Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 9 of 63 Around that time, the Department planned to inform Plaintiff his residency contract would not be renewed past June 30, 2018. Director (Doc. of 83-2, at Employment 22.) However, Equity, was Glenn made Powell, aware of AU the Department's plan to non-renew Plaintiff's contract and told the Department to discussions wait were to finalize had, including the decision possible Plaintiff determine what and requested accommodations he he meet further accommodations Plaintiff and guidance for the Department. emailed until (Id.) with needed. for Dr. Arthur Mr. (Id.) Powell to Plaintiff alleges that during his meeting with Mr. Powell he requested that if he were on overnight call the night before a lecture, he be permitted to take a 20-minute nap during the first part of lecture; however. Defendant argues they accommodation requests or a transfer request. at 40.) accommodation Nevertheless, as the Plaintiff Department states he wanted. never received (Id.; Doc. 89-3, never made (Doc. 89-3, any at 40.) On September 1, 2017, Plaintiff returned to residency from his medical leave and was given a contract until February 2018 instead of June 30, 2018. 24.) Plaintiff disputes this was that only lasted (Doc. 83-2, at unintentional, however, he later signed a revised contract that ran through June 30, 2018. (Id.; Doc. 89-3, at 45.) Defendant intended Plaintiff to still Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 10 of 63 be on the remediation plan upon his return; however, Plaintiff disputes he was ever informed that he was still on remediation. (Doc. 83-2, at 24/ Doc. 89-3, at 46.) was not permitted to call. Nevertheless, Plaintiff work on certain rotations or take (Doc. 83-2, at 25.) night Between his return in September 2017 and the end of January 2018, Dr. Arthur continued to get reports that Plaintiff was late for his shifts; disputes the number of times he was late. 47.) however. Plaintiff (Id.; Doc. 89-3, at Often times, the reason for Plaintiff being late was due to his oversleeping. (Doc. 89-3, at 48.) Defendant contends that the Department had a contingency plan in place for when Plaintiff was scheduled due to his unreliability. 26.) (Doc. 83-2 at Plaintiff's next performance report stated: he "need[ed] to be more prepared and on time for his cases [and that] he does not demonstrate readiness to progress from a CAl to a CA2," was "missing the basic concepts of anesthesia such as managing the airway, or managing the vital signs," "has not shown the ability to think critically on his own," "has trouble following directions and does not seem to ask relevant perioperative questions that influence patient management," "fail[s] to understand the need for urgency in some situations," "appears as an unreliable team player," "needs to work[] on improving his skills, preparedness and attentiveness.. [and] needs to be more organized and aware of critical events that can happen in the operating room . . . [a]1though he listens when you speak he seems like he is in his own world. He needs to get better at applying what he learns and to learn from his mistakes and especially know when to ask for help." 10 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 11 of 63 (Id.) Plaintiff admits this language was in his report but disputes the characterization of his performance. (Doc. 89-3, at 49.) At Mr. Powell's request, Dr. Arthur created a list of essential functions of an anesthesiology resident based on the ABA and ACGME. (Doc. functions she compiled 83-2, at 27.) Among the were: arriving on time, as essential well as an outline of on call activities, including taking call for a 24- hour period. (Id.) Dr. McCall was provided with the list of essential functions and the summary evaluation report Dr. Arthur created to document the Department's issues and concerns with Plaintiff. (Id. at 27-28.) Although Dr. McCall originally certified Plaintiff was capable of performing everything on the essential functions signature from the evaluation report. checklist, he certification ultimately after withdrew reviewing the his summary (Id. at 27-28; Doc. 89-3, at 51-52.) A CCC meeting was held February 1, 2018 to vote on whether to renew academic Plaintiff's year based on (Doc. 83-2, at 28.) CCC, six meeting voted notes Employment condition; residency to the performance for the July evaluations 2018 received. Of the seven members who were part of the non-renew state: Equity the contract and Plaintiff office committee to one has request would 11 abstained. not reached (Id.) out accommodations like to The to the for his investigate the Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 12 of 63 possibility of extending Plaintiff through June to give him time to accept and find a new direction for his career; Dr. Arthur will contact the Graduate Medical Education office and legal department regarding possible transition options for Plaintiff; Reaching out to AU's career counseling office was suggested and will be explored. (Doc. 74-47.) There are continuing debates about whether Plaintiff explicitly requested a transfer to the internal medicine However, the residency program. Parties internally to another agree that (Doc. for MCG program, a the 89-3, resident new at 40-41.) to transfer residency program must agree to accept the transfer - other residency programs have no power or authority accept a resident transfer. chairman of the Department, to force a different (Doc. 83-2, at 23.) ultimately makes program to Dr. Meiler, as the decision on whether to non-renew a resident's contract, and he agreed with the CCC recommendation not to renew Plaintiff's contract for the July 2018 academic year. (Id. at 28.) On February 19, 2018, Plaintiff was informed that based on the CCC's recommendation, the Department would not be renewing his residency contract for the year beginning July 1, 2018, and his last working day would be June 30, Plaintiff did not appeal this decision. Plaintiff came to Dr. Arthur to 2018. (Id.) generally (Id. at 30.) In May 2018, ask about accommodations and a transfer - he admits this is the first time 12 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 13 of 63 he asked about being transferred but also disputes the fact at the same time. (Id. at 31; Doc. 89-3, at 57-58.) Plaintiff stated in his deposition that the first time he brought up the possibility of being transferred to another residency program was only after his contract was non-renewed; however, he also asserts he disputes that the first time it was brought up to Dr. Arthur was May 2018. (See Doc. 89-3, at 57-58.) Nevertheless, Plaintiff was not transferred into another residency program. Plaintiff brings claims against Defendant, alleging violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., as amended, (the "Rehab Act") for disability discrimination based on his narcolepsy diagnosis, and Defendant's alleged failure (Doc. 50, at 10-12.) to accommodate his disability. Specifically, Plaintiff alleges Defendant discriminated against him by terminating his employment and not renewing his contract due to his disability. (Id. at 11.) Furthermore, he alleges Defendant discriminated against him by subjecting him to different terms and conditions of employment during his employment. of discrimination were (Id.) that Plaintiff alleges the final acts Defendant did not allow him to continue in any anesthesiology or residency programs and refused to accommodate him for a transfer to another program. 12.) Defendant moves for summary judgment on (Id. at Plaintiff's claims, arguing Plaintiff did not meet the requirements of a 13 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 14 of 63 qualified individual similarly situated, for his position, non-disabled he resident cannot that show was any treated better than him or that actions were taken against him due to his disability, all actions taken against Plaintiff were based on legitimate, non-discriminatory reasons, and his failure to accommodate claim fails because he cannot show he ever requested an accommodation, and any request he made was after his contract was non-renewed, and was unreasonable, untimely, and would have altered the Department. residency or created an undue hardship for the (Doc. 83-1, at 2.) II. MOTION TO EXCLUDE Defendant moves, pursuant to Federal Rules of Evidence 402, 403, 702, Alexander and 703, Schulman. to exclude (Doc. the 82.) testimony Plaintiff of Dr. David responded in opposition to Defendant's motion (Doc. 88), Defendant replied in support (Doc. 97), and Plaintiff filed a sur-reply (Doc. 100). The Court addresses the Parties' arguments below. A. Background Dr. Schulman filed an expert report and a supplement to his expert report on behalf of Plaintiff. (Doc. 82-1.) He has a Medical Doctorate from Johns Hopkins University and a Master's in Public Health from Boston University. (Id. at 1.) He is trained in internal medicine, pulmonary medicine, critical care medicine, and sleep medicine. (Id.) 14 He is board certified in Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 15 of 63 the latter three and medicine in 2018. gave up his certification in internal (Id.) Currently, Dr. Schulman is a professor of medicine at Emory University in Atlanta, Georgia. (Id.) His practice consists entirely of sleep medicine, and he often manages patients with narcolepsy. (Id.) From 2006 until 2020, he served as the director of Emory's fellowship training program in Pulmonary and Critical Care Medicine. (Id.) Dr. Schulman's expert report offers background information on narcolepsy, its symptoms, and characteristics. (Id. at 4-5.) He also provides examples of treatment of daytime sleepiness in narcolepsy. (Id. at 5-7.) Dr. Schulman did not review Plaintiff's performance reports while preparing his expert report; however, he asserts that if Plaintiff's performance there additional were symptoms. (Id. at 7.) was' affected methods of by daytime treatment to sleepiness, manage Specifically for Plaintiff, Dr. Schulman offers his opinion that he reported adequate control of daytime and sleepiness in his 2017 did not report his symptoms of cataplexy; therefore, his narcolepsy diagnosis ''should not have been a contraindication to his ongoing work as a resident in anesthesiology." from that his leave would (Id. at 8.) of absence. have limited He believes that upon returning Plaintiff his anesthesiology training program. opinion that if Plaintiff's did not ability to (Id.) symptoms 15 report work symptoms in the Further, he is of the worsened, there were Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 16 of 63 additional treatment options that could have been considered. (Id.) In his supplemental opinion, Dr. Schulman provided additional opinions regarding Dr. McCall and his treatment of Plaintiff. (Id. at 9.) He notes he "was surprised that Dr. McCall did not suspect that narcolepsy could be a contributor to [Plaintiff's] repeatedly showing up late in the morning . . . as oversleeping is a common manifestation of narcolepsy." Dr. Schulman also disagrees Plaintiff was on the with Dr. maximal McCall's therapy for (Id.) assertion his that diagnosis and believes there were different formulations of drugs that could have monitored his symptoms. (Id.) He also opines that Dr. McCall's decision to withdraw his signature from the essential functions checklist without discussing with Plaintiff was due to the conflict between Dr. McCall's responsibility employee and as Plaintiff's treating physician. as an AU (Id. at 10.) In preparing his supplemental opinion, Dr. Schulman reviewed Dr. McCall's deposition, and Exhibits V and Y from Dr. McCall's deposition, which are minutes from a conference call about Dr. Sholes and a History and performed by Dr. McCall. Physical Exam Report of Plaintiff (See id. at 9; Docs. 75, 75-22, 75- 25.) Defendant moves to exclude the testimony of Dr. Schulman. (Doc. 82.) Defendant specifically lists ten opinions to exclude; however, it later stated it actually moves to exclude 16 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 17 of 63 the entire opinion. (Id. at 2-4; Doc. 97.) The crux of Defendant's motion is that Dr. Schulman is not qualified, his opinions are not reliable, (Doc. 82, at 8-15.) and his opinions are irrelevant. Plaintiff opposes the motion, arguing Dr. Schulman is qualified, his opinions are reliable and relevant, and at a minimum he should be permitted to testify about the topics left unmentioned by Defendant's motion. (Doc. 88.) B. Legal Standard Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand issue; (b) the the evidence testimony is or to based determine on a sufficient fact in facts or data; (c) the testimony is the principles and methods; and product of reliable (d) the expert has reliably applied the principles and methods to the facts of the case. "As the Pharms., Supreme Inc., Court [509 recognized U.S. 579, 589 in Daubert (1993)], v. Rule Merrell 702 Dow plainly contemplates that the district court will serve as a gatekeeper to the admission of [expert] testimony." Quiet Tech. DC-8, Inc. V. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). "The burden of laying the proper foundation for the admission of 17 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 18 of 63 the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison V. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). The Eleventh Circuit has explained that district courts are to engage in a three-part inquiry to determine the admissibility of expert testimony under Rule 702. 1340. Quiet Tech., 326 F.3d at Specifically, the court must consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Id. at 1340-41 (citations omitted). First, an expert may be qualified to testify due to his knowledge, skill, experience, training, or education. Trilink Saw Chain, LLC v. Blount, Inc., 583 F. Supp. 2d 1293, 1304 (N.D. Ga. 2008) (citation omitted). "A witness's qualifications must correspond to the subject matter of his proffered testimony." Anderson v. Columbia Cnty., No. CV 112-031, 2014 WL 8103792, at *7 (S.D. Ga. Mar. 31, 2014) (citing Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir. 1999)). However, an expert's training need not be narrowly tailored to match the exact point 18 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 19 of 63 of dispute. McDowell v. Brown, 392 F.3d 1283, 1297 (11th Cir. 2004). Second, the testifying expert's opinions must be reliable. In Daubert, the Supreme Court directed district courts faced with the proffer of expert testimony to conduct a "preliminary assessment of the whether testimony is the reasoning scientifically or methodology valid and of underlying whether that reasoning or methodology properly can be applied to the facts in issue." should tested, 509 U.S. at 592-93. consider: error, (1) whether (2) whether (3) whether and the There are four factors that courts it has technique (4) whether the has theory been a the or subject known theory acceptance in the relevant community. technique can to review, peer or potential has attained rate be of general Id. at 593-94. "These factors are illustrative, not exhaustive; not all of them will apply in every case, and in some cases other factors will be equally important in evaluating expert opinion." the reliability of proffered United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citation omitted). For example, experience- based experts need not satisfy the factors set forth in Daubert. See United States v. Valdes, 681 F. App'x 874, 881 (11th Cir. 2017) (affirming admission of testimony from expert identifying firearms based upon years of experience working with firearms). However, "[t]he inquiry is no less 19 exacting where the expert Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 20 of 63 'witness is relying solely on experience' rather than scientific methodology." Summit at Paces, LLC v. RBC Bank; No. l:09-cv- 03504, 2012 WL 13076793, at *2 (N.D. Ga. May 22, 2012) {quoting Fed. R. Evid. 702, advisory committee's notes to 2000 amendment)). Bearing in mind the diversity of expert testimony, "the trial judge must have considerable leeway in deciding in a particular case how to go about testimony is reliable." 137, 152 (1999). determining whether particular expert Kumho Tire Co. v. Carmichael, 526 U.S. "[W]hether the proposed testimony is scientifically correct is not a consideration for this court, but only scientific whether or principles not and the expert's methodology, testimony, is reliable." based on In re Chantix Prods. Liab. Litig., 889 F. Supp. 2d 1272, 1280 (N.D. Ala. 2012) (citing Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999)). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (citations omitted and alterations adopted). Regardless of the specific factors considered, "[p]roposed testimony must be supported by appropriate validation - i.e., 'good grounds,' based on what is known." 590. Daubert, 509 U.S. at In most cases, "[t]he expert's testimony must be grounded in an accepted body of learning or experience in the expert's 20 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 21 of 63 field, and the grounded." expert must explain how the conclusion is so Fed. R. Evid. 702, advisory committee's notes to 2000 amendment. ''Presenting a summary of a proffered expert's testimony in the form of conclusory statements devoid of factual or analytical support proponent's burden. is simply not enough" to carry the Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1113 {11th Cir. 2005). Thus, "if the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Frazier, 387 F.3d at 1261 (citation omitted) (alterations in original). Third, expert testimony must assist the trier of fact to decide a fact at issue. test as one of "fit." The Supreme Court has described this Daubert, 509 U.S. at 591. To satisfy this requirement, the testimony must concern matters beyond the understanding of the average lay person and logically advance a material aspect of the proponent's case. at 1262. Id.; Frazier, 387 F.3d Yet, "[p]roffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue Frazier, 387 F.3d at 1262-63. 21 in closing arguments." Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 22 of 63 C. Discussion As a preliminary issue, Plaintiff argues that since Defendant's motion does not address all of the opinions in Dr. Schulman's report, the motion fails to provide a legal basis for exclusion of all of his opinions. (Doc. 88, at 1-2.) Defendant counterargues that it has moved to exclude all of Dr. Schulman's opinions and the opinions Plaintiff seeks to keep as valid were not in his consideration. expert reports and (Doc. 97, at 2.) are not eligible for In response. Plaintiff argues wholesale exclusion can constitute an abuse portions of the testimony are reliable. of discretion where (Doc. 100, at 2 (citing Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1281 (11th Cir. 2015).) Plaintiff argues opinions outside the expert report are allowed, and Defendant has not attacked Dr. Schulman's .qualifications as an expert, so it has not provided a real explanation for excluding his opinions entirely. (Id. at 3.) The Court agrees with Plaintiff and finds Defendant did not sufficiently provide argument to exclude Dr. Schulman entirely within the pending motion to exclude. address Defendant's arguments as to However, the Court will exclusion of the ten explicit opinions it references in its motion.^ Defendant makes Vmention Dr. of deposition trying to testimony; also exclude however, none some of of that Schulman's testimony is directly cited in Defendant's motion to exclude and therefore it 2 The Court refers to these 10 Opinions as Defendant labeled them in its motion to exclude. (See Doc. 82, at 2-4.) 22 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 23 of 63 is not properly before the Court at this time. The Court does note that Federal Rule of Civil Procedure 26(a)(2)(B) requires expert reports contain "a complete statement of all opinions the witness will express and the basis and reasons for them." R. Civ. p. 26(a)(2)(B). to offer expert from report testimony Dr. or Therefore, any opinions Plaintiff seeks Schulman should the supplement be used cannot Fed. have been thereto, except for included and his providing in his deposition additional information that relates to the opinions expressed in his filed report. See Landivar v. Celebrity Cruises, Inc., 340 F.R.D. 192, 195 (S.D. Fla. 2022) (explaining that Rule 26 contemplates that an expert will supplement, elaborate upon, and explain his report through oral testimony). Based on this, the Court is only opinions examining exclude. 1. the ten explicit Defendant moves The ten relevant opinions are as follows: As of the time of his return from his leave of absence. Dr. Sholes did not report symptoms of daytime sleepiness or cataplexy that would have limited his ability to work in the anesthesiology training program. 2. Had worsening symptoms of daytime sleepiness developed, there were additional treatment options that could have been considered. 3. Had symptoms of cataplexy developed, there were treatment options that could have been considered. 4. In reviewing these documents, I was surprised that Dr. McCall did not suspect that narcolepsy could be a contributor to Dr. Sholes' ''repeatedly showing up late in the morning," as oversleeping is a common manifestation of narcolepsy. 23 to Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 24 of 63 5. I disagree with the assertion that "Tipton was on the maximal therapy for his diagnosis" in early 2018. At the time being referenced in this statement. Dr. Sholes was reportedly taking modafinil 200 mg twice per day, lisdexamfetamine (in the form of Vyvanse) 50 mg twice per day, and amphetamine / dextroamphetamine (in the form of Adderall) 20 mg once per day. 6. Had the decision been made that Dr. Sholes was not adequately treated on this regimen, I would agree that adding more amphetamine would not be appropriate (as he was already taking a dose that I would not recommend adding to), but transitioning to different formulations of each drug would have been possible. Examples would include substituting armodafinil for modafinil (some patients respond better to one drug than the other, though I have found it hard to predict which will work better for a given patient), transitioning from Vyvanse to Dexedrine, or tapering the Vyvanse or Adderall and adding on methylphenidate (Ritalin). 7. If a decision was made to avoid tapering one of the stimulants, consideration could still have been given to addition of either bupropion or clarithromycin. While both of these agents would have to be used as an "off-label" indication for narcolepsy, both have ovide benefit in some cases of patients with hypersomnia; though it is not guaranteed that they would have worked for Dr. Sholes, it would certainly have been appropriate to try one or both before concluding that no additional therapy would have been available. I agree with Dr. McCall that sodium oxybate would probably not be an agent I would offer in the absence of documented cataplexy. 8. I suspect that Dr. McCall's decision to withdraw his signature from the essential functions checklist without circling back to discuss the situation with Dr. Sholes was not made lightly, but I find there to be significant potential conflict between Dr. McCall's responsibility to his employer (August[a] University) and to his patient. 9. To withdraw [Dr. McCall's] signature without circling back with Dr. Sholes regarding his reported failure "to inform Dr. McCall 24 of his continued Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 25 of 63 tardiness, extended lunch periods . . . and to consistently participate in didactics and required meetings" undoubtedly prevented Dr. McCall from exploring different pharmacologic or behavioral regimens with Dr. Sholes. 10. If Dr. Sholes' had previously provided unrestricted permission for Dr. McCall to communicate with training program leadership, that would mitigate my concerns to some degree, but I still believe it is in the best interests of the doctor-patient relationship to keep the patient apprised of what is being asked of his treating physician. {Doc. 82, at 2-4 (citations omitted).) 1. Qualification First, Defendant argues Dr. Schulman is not qualified to give Opinions 1-3 or 8-10 concerning whether Plaintiff had symptoms limiting his work ability or about potential conflicts Dr. McCall had when he told the Department Plaintiff was unable to perform the essential functions of residency. 8-9.) sleep (Doc. 82, at Defendant argues that while Dr. Schulman specializes in medicine, admits he is pulmonology, not an and critical anesthesiologist and care, not he an himself expert in anesthesia, so he cannot provide much in the way of what would be deemed competence in this area. believes an expert "should not be (Id. at 9.) allowed to Defendant opine on an anesthesiology resident's ability to perform his job when that expert is not even aware of what those job duties entail." at 10.) (Id. The Court finds it important to note that Defendant does not argue Dr. Schulman is unqualified as an expert in general, only that he is unqualified to offer these Opinions; 25 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 26 of 63 therefore, the Court will not analyze Dr. Schulman's qualifications as an expert generally because such position is not disputed. In response, Plaintiff argues Opinion 1 does not qualify for exclusion under Daubert because it is not expert testimony. (Doc. 88, Schulman Plaintiff career. at is 9.) As qualified because of to Opinions 2-3 and to question Dr. McCall's his (Id. at 12-13.) background and 9, he argues treatment distinguished Dr. of medical And as to Opinions 8 and 10, Plaintiff argues Dr. Schulman is qualified based on his extensive training and experience as a physician, implying he possesses extensive expertise in medical ethics. As to testimony.3 Opinion 1, (Id. at 15-16.) Plaintiff (See id. at 9.) admits it is not expert Instead, he states this is simply Dr. Schulman's recitation of the factual record. (Id. at 10.) Subjective portrayals of factual information like this from an expert do not assist the jury. No. l:19-cv-0646, 2021). "Given 2021 [Dr. WL See Giusto v. Int'l Paper Co., 3603374, Schulman's] at *4 (N.D. Ga. qualifications Aug. and 31, expert status, there is a greater risk of prejudice to [Defendant], as a jury may naturally afford his rendition of the facts 3 In Plaintiff's reply brief in support of his opposition to Defendant's motion to exclude, he changes his argument and asserts Opinions 1 and 9 are both expert testimony and lay opinion testimony (Doc. 100, at 4-5); however, in his original opposition he argued Opinions 1 and 9 were "not expert testimony at all" (Doc. 88, at 11-12). However, the Court agrees with his original argument that the opinions are not expert opinions as they do not require "scientific, technical, or other specialized knowledge" and therefore could unduly prejudice the jury by affording more weight to his opinions as he is an expert. 26 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 27 of 63 heightened weight." F.R.D. 568, 579 Id. (citing Hendrix v. (N.D. Fla. 2009) ("When the Evenflo Co.; 255 trier of fact is entirely capable of determining issues in the case without any technical assistance from . . . experts, expert testimony is unhelpful and must be excluded from the evidence. Otherwise, there is a risk the trier of fact will give the expert testimony undue weight on account of its special status.")). Based on this. Opinion 1 is excluded as it is not a permissible area in which Dr. Schulman may offer expert testimony. As to Opinion 9, Plaintiff similarly argues the opinion is not expert testimony, but Dr. Schulman should be permitted to testify about this if he's allowed to testify at all. at 11-12.) Since Plaintiff admits this is (Doc. 88, lay opinion testimony, for the same reasons stated above for Opinion 1, the Court will not permit Dr. Schulman to offer this as it may improperly influence the jury; therefore. Opinion 9 is excluded. As to Opinions 2-3, Plaintiff argues Dr. Schulman is qualified to render these opinions because he is a Professor of Sleep Medicine, ran Emory University's sleep lab for years, has successfully treated lots of patients with narcolepsy, has been published extensively on the disease, leading expert on sleep disorders. finds and Dr. Schulman's education knowledge, qualifies him to and is considered (Doc. 88, at 13.) skills, opine on experience, the fact a The Court training, there were additional treatment options that could have been considered for 27 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 28 of 63 Plaintiff. (citation See omitted). Schulman is options, Trilink Chain, Defendant incapable therefore Saw of the 583 offers offering Supp. nothing his Court finds F. to knowledge he is 2d at 1304 suggest of Dr. treatment qualified to offer Opinions 2 and 3. As to Opinions 8 and 10, Dr. Schulman offers his opinion on Dr. McCall's decisions and interactions in the treatment of Plaintiff and how his ethics and the doctor-patient relationship played into his actions. (Doc. 82-1, at 10.) Defendant argues Dr. Schulman is not qualified "to opine on any possible conflict of interest physician, that had Dr. when Vaughn he McCall, communicated as to Plaintiff's the graduate treating medical office and anesthesiology department that Plaintiff was unable to perform resident." the essential functions (Doc. 82, at 9.) evidence Dr. Schulman of an anesthesiology Further, it argues there is no has any specialization or expertise in bioethics, medical conflicts of interest, or ethics generally, and he should not be allowed to offer his ipse dixit testimony that Plaintiff's treating physician had any conflict of interest in treating Plaintiff while being employed at AU. (Id. at 10.) In response. Plaintiff argues "Dr. Schulman's extensive training and experience as a physician readily implies that he possesses extensive expertise in medical ethics so as to permit him to render an expert opinion on that topic." (Doc. 88, at 16.) He argues the Court "should consider a proposed expert's full range 28 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 29 of 63 of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." (Id. (quoting Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).) Furthermore, he argues an expert does not have to have experience that mirrors the facts of the case in order to be qualified. omitted).) has (Id. (citation In rebuttal, Defendant again argues that ''Plaintiff presented no authority to show that simply by virtue of being a doctor with extensive training and experience in one field of medicine, that this inherently makes him an expert as to all medical ethics issues arising in treated patients that condition." (Doc. 97, at 4.) with It argues again that Dr. Schulman is not an expert in bio-ethics or medical conflicts of interest, and therefore any testimony on these matters should be disregarded. (Id.) In response, Plaintiff begs the questions of "[w]hy expertise in bioethics, a term that refers to a field of study concerned with issues arising from biotechnology and medicine's role within these opinions." society, would (Doc. 100, at 4.) be required to render Further, he clarifies he "has not held Dr. Schulman out as an expert on 'all medical ethics issues' concerning persons with narcolepsy, just the variety of those that he offered in his report, which are the type that he (and nearly every medical doctor) confronts on a near (Id.) daily The basis Court and are finds of Dr. extremely Schulman, 29 limited as a complexity." trained medical Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 30 of 63 professional, shall be permitted to offer his opinions on conflicts of interest and the doctor-patient relationship. By- means of his education, background, and training. Dr. Schulman has knowledge beyond that of a general lay person doctors handle ethical issues in their daily work. above, an expert's training need not be as to how As explained narrowly tailored to match the exact area of dispute, consequently the Court does not find Dr. Schulman would have to be specifically trained in medical ethics to be qualified to offer these opinions. See McDowell, the 392 F.2d at 1297. Based on these conclusions, Court finds Dr. Schulman qualified to render Opinions 8 and 10. 2. Reliability Next, Defendant argues Dr. Schulman's Opinions 1-7 are not reliable. (Doc. 82, at 10-13.) It asserts Opinions 1-3 were based solely on Plaintiff's self-reporting, and Dr. Schulman did not refer to or rely on any medical literature in rendering his opinions. (Id. at 10-11.) Further, it argues Dr. Schulman did not see Plaintiff's symptoms of sleepiness; therefore, he cannot comment on how Plaintiff's condition compared to others he had treated. know (Id.) whether result of Plaintiff's his Furthermore, Defendant argues Dr. Schulman had no way to narcolepsy Defendant performance or issues something asserts Dr. else. Schulman were actually (Id. is at opining a 12.) on various treatment options that could have been pursued; however. 30 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 31 of 63 he had no way to know if the treatments or medications would have actually worked. As to arguments Opinions are Schulman's (Id. at 13.) 2 and 3, inapplicable, experience as Plaintiff and it applied argues has to Defendant's not questioned Dr. these opinions, nor suggested his methodology was flawed or that the opinions are based on insufficient facts or data. (Doc. 88, at 13.) Further, Plaintiff argues Dr. Schulman is not required to show to a degree of absolute certainty that alterative medications would have been effective, but he has number of trial and errors over the gone through a great years and has discovered effective approaches to treating narcolepsy. (Id. at 13-14.) In Opinions 2 and 3, Dr. Schulman is simply offering his opinion that if Plaintiff's symptoms worsened or if he developed cataplexy, there were additional treatment options that could have been considered. opinions to be (Doc. 82-1, at 8.) reliable based on Dr. The Court finds these Schulman's years experience in treating and studying narcolepsy patients. of It is not necessary that Dr. Schulman provide research and reliable information to show that these alternative treatments would have worked since successful simply he in stating is not treating stating that Plaintiff. alternative methods they Instead, and treat narcolepsy and they could have would Dr. tried. finds this limited opinion sufficiently reliable. 31 been Schulman medications been have exist The is to Court Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 32 of 63 As to Opinion 4, Defendant argues Dr. Schulman's opinion that he was surprised Dr. McCall did not suspect Plaintiff's narcolepsy was a contributing factor to him showing up late in the morning, as oversleeping reliable. (Doc. 82, at 12.) is common in narcolepsy, is not It asserts Dr. Schulman had no way to known whether Plaintiff's performance issues were a result of his narcolepsy or something else. (Id.) Further, it argues there is no evidence Dr. Schulman relied on or proffered to show Plaintiff's (Id.) tardiness was a direct result of his narcolepsy. In opposition. Plaintiff argues Opinion 4 is sufficiently reliable to warrant admission because Dr. Schulman has effectively treated numerous patients with hypersomnia over the course of his 20-year career, including patients with narcolepsy in "high-stress" fields; therefore, he is familiar with common symptoms of the disease and his opinion is reliable. (Doc. 88, at 10-11.) Furthermore, he argues that Defendant's mention of performance issues beyond tardiness are irrelevant Opinion 4 only addresses tardiness. (Id. at 10.) believes reliable Dr. Schulman's opinion is because Plaintiff because he is trusting straightforward, simplistic matters in his field, and his qualifications and experience support the reliability of his conclusions. (Id.) The Court finds Opinion 4 to be reliable. simply stating his opinion that narcolepsy contribution to Dr. Sholes' excessive tardiness. 32 Dr. Schulman is could be a (See Doc. 82- Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 33 of 63 1, at 9.) Dr. Schulman is not offering an opinion that narcolepsy was in fact the cause of Plaintiff's tardiness, and the Court believes that opinion would be improper since he never met or studied Plaintiff firsthand. However, simply offering the opinion that narcolepsy could cause Plaintiff to oversleep and arrive late to work in the mornings is reliable based on Dr. Schulman's experience and training. For Opinions 5, 6, and 7, Dr. Schulman takes a little bit of a deeper dive into the specifics of Plaintiff's treatment and his disagreement with the statement that Plaintiff was on the "maximal therapy" transitioning to for his other diagnosis, his formulations of opinion the that prescribed medications would have been possible, and that had tapering been avoided, there were other medications that could have been given consideration in treating arguments for excluding Opinion 4. Defendant argues Dr. suggested treatments Plaintiff, exclusion there is Plaintiff. of (See Opinions Doc. Schulman and no (Id.) 82, had to at no medications way 5-7 mirror 13.) way would force a Defendant's those for Essentially, to know have if his worked for patient to change medications or undergo testing if the patient believes he is being adequately treated, and there is no clear evidence that Dr. Schulman relied on or proffered to show Plaintiff would have agreed would to have new treatments, corrected or that Plaintiff's 33 any alternative symptoms and treatment enabled him to Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 34 of 63 perform the essential functions of his residency. (Id.) In response, Plaintiff argues Dr. Schulman is not required to show alternative medication regimes would have been effective, and he has been through a great number of trials and errors over the years discovering what are and what are not effective approaches to treating narcolepsy in various patients. 14.) (Doc. 88, at 13- Therefore, Plaintiff argues. Dr. Schulman's opinions of what could reliable. have been considered as treatment for him are (Id. at 14.) As the Court explained above. Dr. Schulman's Opinions 2 and 3 stating other treatments are available for narcolepsy are reliable given his training, and Opinion 4 is also reliable based on his background and experience treating narcolepsy patients; however, the Court finds Opinions 5-7 are more in depth and require more analysis. In Opinion 5, statement that diagnosis. opines that Dr. Schulman disagrees Plaintiff was on (Doc. 82-1, at 9.) transitioning to the with Dr. maximal therapy McCall's for his In Opinion 6, Dr. Schulman different formulations of the medications Plaintiff was on would have been possible to modify his treatments. (Id.) And in Opinion 7, he states there were additional medications that could have been tried and have been shown to benefit some patients. (Id.) Dr. Schulman points out that the medications might not have worked for Plaintiff, but it would have been appropriate to try one or both before concluding 34 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 35 of 63 no additional therapy was available. (Id.) While Dr. Schulman reviewed Plaintiff's medical records from visits with Dr. McCall and the Longstreet Clinic, as well as the polysomnography results from testing in April 2017, he never himself examined Plaintiff. (See id. at 1.) Based on his lack of familiarity with Plaintiff as a patient and weak explanation on how these various treatments would have changed Plaintiff's condition, the Court finds Opinions 5-7 to be unreliable. When a "witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply 'taking the expert's word for it.'" Frazier, 387 F.3d at 1261 (quoting Fed. R. Evid. 702 advisory committee's notes (2000 amends.)). "The trial judge in all cases of proffered expert testimony must find that it is properly grounded, speculative before it can be admitted." well-reasoned, Id. at 1262. and not While the Court took no issue with Dr. Schulman offering his opinion that other medications and treatments were available in Opinions 2-4, the Court finds Opinions 5-7 are too speculative to be reliable. Although treating Dr. Schulman narcolepsy hypothetical for him has extensive patients, to opine, on the how training and Court finds Plaintiff's experience it too dosages of medication could have been changed, and how he could have been 35 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 36 of 63 treated differently Dr. at maximum his There very well could have been other treatments, as in his prior treatment treating diagnosis. outline the McCall, stated Schulman was though physician, Dr. he even opinions, but to for his take it further and try and tell the jury Dr. McCall's observations were wrong and other combinations could have been tried on Plaintiff is not reliable first-hand and because does Dr. Schulman not tie in his has not treated hypothetical anything from Plaintiff's medical records. Plaintiff plans with If Dr. Schulman went through what he found in the medical records to indicate how these other medications might be beneficial based on various statistics, then the Court would be less hesitant to let him express his opinions; however, he provides no connection as to why these medications might have worked for Plaintiff beyond the fact that additional treatments and varying dosages existed. Based on this, the Court finds Opinions 5-7 are too speculative to be reliable in this case and therefore they shall be excluded. 3. Relevance Finally, Defendant argues Dr. Schulman's Opinions 2-3 and 5-10 are irrelevant because Dr. McCall's treatment of Plaintiff or any alleged conflict of interest causes of action in this lawsuit. has no bearing (Doc. 82, at 14.) upon the It argues Dr. Schulman's opinions about Dr. McCall's alleged conflict of interest are nothing more than what lawyers could argue during 36 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 37 of 63 closing arguments. opinions are excluded. (Id.) more prejudicial (Id. at 14-15.) opinions are relevant McCall's treatment consider additional and 88, at 14.) had the Furthermore, of than it believes probative and these should be In response, Plaintiff argues these because Plaintiff the issues centers alternative surrounding around treatment his Dr. failure options. to (Doc. Further, he argues these failures show Dr. McCall same biases as the Department, and it speaks discriminatory biases of Dr. Meiler and Dr. Arthur. to the (Id. at 14- 15.) The only opinions remaining pursuant to Defendant's argument here are Opinions 2, 3, 8, and 10. The Court, based on its 3 analysis above, finds Opinions 2 and to be relevant. Since Dr. Schulman is qualified to give these opinions about additional treatments existing, the Court finds this testimony concerns information that would assist an average lay person in evaluating the case. Turning to Opinions 8 and 10, the Court previously found Dr. Schulman qualified to offer his opinion on medical ethics in this capacity. In terms of relevancy. Defendant is concerned these opinions are more prejudicial than probative. (Doc. 82, at 14.) In response. Plaintiff argues this testimony is more probative than prejudicial because it can be used to prove essential elements of his claim, namely whether Defendant acted Since the Court with has bias found in its Dr. 37 actions. Schulman (Doc. qualified 88, at 18.) to testify Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 38 of 63 about his information, and Defendant has not set forth explicit justification for prejudice other than the information being potentially misleading, the Court will allow Opinions 8 and 10 to be admitted. The jury's job is to determine credibility and it will be able to do so with regards to these opinions. on the foregoing. Defendant's motion to exclude (Doc. Based 82) is GRANTED IN PART and DENIED IN PART. III. MOTION FOR SUMMARY JUDGMENT Defendant moves for summary judgment on Plaintiff's claims. (Doc. 83.) Defendant argues Plaintiff's disability discrimination claims fail because he cannot establish a prima facie case or point to evidence that Defendant's reasons for allegedly disparate terms and conditions of his employment and not renewing intentional his residency discrimination. contract (Doc. were 83-1, at a pretext 3.) for Further, it argues Plaintiff cannot show Defendant failed to provide him a reasonable accommodation. (Id.) In response. Plaintiff argues there is direct and circumstantial evidence could find which it is individual. summary discriminatory intent, possible (Doc. judgment a 89-1, should jury at not and could 7, be 21.) there find he is which a jury evidence was a Furthermore, granted on claim as it relates to his transfer request. Court address the Parties' arguments below. 38 from the from qualified he asserts accommodation (Id. at 32.) The Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 39 of 63 A. Summary Judgment Standard Under Federal Rule of Civil Procedure 56, a motion for summary judgment is granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled 56(a). the to judgment a matter of law." Fed. R. Civ. P. "An issue of fact is 'material' if . . . it might affect outcome of the record taken as a find for the Co., as 357 whole . . . 1256, [and it] is 'genuine' if the could lead a rational trier of fact to nonmoving party." F.3d omitted) . case 1259-60 Hickson Corp. (11th Cir. v. N. 2004) Crossarm (citations The Court must view factual disputes in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all favor." justifiable inferences in [the non-moving party's] United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted). The Court should not weigh the evidence or determine credibility. Anderson v. U.S. 255 (1986). However, the 242, Liberty Lobby, Inc., 477 nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." omitted). Matsushita, 475 U.S. at 586 (citations A mere "scintilla" of evidence, or simply conclusory allegations, will not suffice. See e.g., Prods., 135 F.3d 1422, 1425 (11th Cir. 1998). 39 Tidwell v. Carter Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 40 of 63 Defendant here does not bear the burden of proof at trial, and therefore may "satisfy its initial judgment in either of two ways." Mortg., 955 F. Supp. 2d 1256, burden on summary McQueen v. Wells Fargo Home 1262 (N.D. Ala. 2013) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir. 1993)). First, absence of Defendant "may simply evidence to support particular issue at hand." Id. show [Plaintiff's] in fact contains there case supporting an the If this showing evidence is on (citation omitted). occurs, Plaintiff "must rebut by either (1) record that that the sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged omitted). Or evidentiary second. deficiency." Defendant may Id. (citation "provide affirmative evidence demonstrating that [Plaintiff] will be unable to prove [his] case at trial." Id. (citation omitted and alterations in original). "Parties may not, by the simple expedient of dumping a mass of evidentiary material into the record, shift to the Court the burden of positions." identifying evidence supporting their respective Preis v. Lexington Ins. Co., 508 F. Supp. 2d 1061, 1068 (S.D. Ala. 2007). Essentially, the Court has no duty "to distill every potential argument that could be made based upon the materials before it on summary judgment." Id. (citing Resol. Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 40 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 41 of 63 1995)). Accordingly, the Court will only review the materials the Parties specifically cite and legal arguments they expressly advance. In notice See id. this action, the Clerk of the summary judgment affidavits or other materials consequences of default. (Doc. of Court motion, in provided the Plaintiff right opposition, 84.) For that to file and the reason, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. Plaintiff responded to the motion (Doc. 89), Defendant replied in support (Doc. 95), Plaintiff filed a sur-reply in opposition (Doc. 99), and Defendant filed a sur-reply in support (Doc. 102). for filing thoroughly materials briefed, consideration. has and expired, the the motion issues is have now the Parties' briefs, been ripe In reaching its conclusions herein, has evaluated The time the other submissions, for Court and the evidentiary record in the case. B. Rehab Act, 29 U.S.C. § 794, et seq. Legal Standard The Rehab Act prohibits entities receiving federal funds from discriminating against an "otherwise qualified individual with a disability disability." . . . solely 29 U.S.C. § 794(a). by reason of her or his "The standard for determining liability under the [Rehab Act] is the same as that under the Americans with Disabilities Act ["ADA"]. . . ; thus, cases involving the ADA are precedent for those involving the [Rehab 41 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 42 of 63 Act]." Ellis V. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (internal citations discrimination prove: ''(1) qualified unlawful under had the a Univ. 1310 of (11th To the make Rehab disability; position; discrimination Garrett v. 1306, claim []he for omitted). as and the Act (2) (3) 2007) a []he of [his] Bd. (citation of facie Plaintiff was was result prima requires []he Ala, at Birmingham Cir. out otherwise subjected to disability." Trs., 507 omitted). F.3d Unlawful discrimination can occur when an employer "fails to provide a reasonable "unless accommodation" doing employer." so to would Boyle v. an otherwise impose an qualified undue hardship City of Pell City, 866 F.3d (11th Cir. 2017) (citation omitted). person on the 1280, 1289 A reasonable accommodation enables an employee with a disability "to perform the essential functions" of privileges of situated his position employment employees or as are without 1630.2(o)(1)(ii), (iii). "to enjoy equal enjoyed by disabilities." benefits its 29 and similarly C.F.R. § An employer can satisfy its reasonable accommodation requirements under the Rehab Act by: (1) providing a reasonable accommodation; or (2) by engaging with the employee in an interactive accommodation even process though to no determine accommodation a reasonable is ultimately provided because either (a) there is a breakdown in the process not due to the employer or (b) there is no reasonable way to accommodate the employee. See 42 Stewart v. Happy Herman's Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 43 of 63 Cheshire Bridge, Inc., 117 F.3d 1278, 1286-87 (11th Cir. 1997) (granting summary judgment for employer when employer engaged in interactive process and offering five accommodations, but plaintiff rejected them and demanded a different accommodation); Bell V. Westrock Servs., Inc., No. 15-0148, 2016 WL 3406117, at *9 (S.D. Ala. June 17, 2016) (finding no failure to accommodate when employer ''made efforts to accommodate" employee). C. Discussion Defendant moves for summary judgment on Plaintiff's claims, arguing he cannot meet his burden of proving a prima facie case of discrimination "qualified because individual" he or cannot that he show was he is subjected an to otherwise unlawful discrimination "solely by reason of his discrimination." 83-1, at 4-5.) accommodate Further, claim fails it argues because he Plaintiff's was breakdown in the process, any requests (Doc. failure responsible for to the were untimely and not required, any request to transfer to new a residency was not reasonable or required, and his after-the-fact requested accommodation to finish residency without night call would cause an undue hardship. (Id. at 24-31.) component individually. The Court will address each It first notes that there is no dispute Plaintiff had a disability, so the Court need not address the first prong necessary to prove a Rehab Act claim. 43 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 44 of 63 1. Qualified Individual First, Defendant argues "Plaintiff could not perform the essential functions of an anesthesiology resident and posed a risk to patient safety, [therefore,] qualified for the position." he was not (Doc. 83-1, at 6.) otherwise It argues two of the essential functions of being an anesthesiology resident are the ability to be on time and the ability to take overnight call, and Plaintiff (Id. at 6-10.) from was unable to do either of these things. In response. Plaintiff argues there is evidence which it is possible a jury could find Plaintiff qualified individual. (Doc. 89-1, at 21.) was a He argues "[t]he determination of whether someone is a qualified individual, what the requirements for the program are, and whether someone is a 'direct threat' are all questions of fact." omitted).) Plaintiff discriminatory bias, argues that there are due to (Id. (citations the evidence sufficient facts from of which a jury could find Plaintiff was qualified for the position with or without accommodations. (Id. at 21-22.) To establish a Rehab Act discrimination claim, "plaintiff bears the burden of proving that [he] is a 'qualified individual with a disability' — that is, a person who, with or without reasonable accommodation, can perform the essential functions of [his] job without jeopardizing patient safety." Leme v. S. Baptist Hosp. of Fla., Inc., 248 F. Supp. 3d 1319, 1341 (M.D. Fla. 2017) (quoting Cleveland v. Policy Mgmt. Sys. 44 Corp., 526 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 45 of 63 U.S. 795, Typically, 806, (1999)) the first step of determine whether such sufficient as (internal Plaintiff things of the sort. the has analysis the experience, quotations requires position's educational Id. at 1342. omitted). the Court prerequisites, background, and However, there is no dispute in this case that Plaintiff's background qualified him into the anesthesiology residency program; instead, the only question is whether he can perform the essential functions of the job. id. See "Essential functions are the fundamental job duties of a position that an individual with a disability is actually required to perform, as distinct from mere marginal functions." Id. (citing Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007)). evaluated case-by-case on factors." a "Whether a function is essential is basis by examining a number of Holly, 492 F.3d at 1258 (citing D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir. 2005)). The factors include but are not limited to: consideration to the employer's judgment as to what functions of the job are essential, written descriptions of the job advertised or used when interviewing applicants, amount of time spent on the job performing the function, consequences of not requiring employee to perform the function, work experience of past employees, and work experience of employees in similar positions. 422 F.3d at 1230 (citations omitted). 45 the current D'Angelo, Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 46 of 63 In this functions case, to use resources from Dr. in Arthur compiled evaluating a Plaintiff list by of essential relying on her the ABA and the ACGME - two governing bodies. (Doc. 83-2, at 27; Doc. 74, at 159.) Dr. Arthur did not rely on the job description in this instance because it comes from the business office and is mostly related to an attending, not a resident, so she instead based her essential functions on the ABA competencies. the essential (Doc. 83-2, at 27; Doc. 74, at 165.) functions Dr. Arthur compiled Among for an anesthesiology resident were: DAILY arrive (6:00 their before RESPONSIBILITIES: Residents are required to in the hospital no later than 6:30 am each day am on the cardiothoracic rotation) to set up work area, operating room (OR), or block area the start of the day. Residents should complete their [operating room] setup interviews by 7:00 am (or by 6:30 and patient am on the cardiothoracic rotation). ON CALL ACTIVITIES: The objective of on-call activities is to provide residents with continuity of patient care experiences throughout a 24-hour period, provided the resident is a CA-1 or higher. In-house call is defined as duty hours beyond the normal workday when residents are required to be immediately available in the assigned institution. Continuous on-site duty, including in-house call, not to exceed 24 consecutive hours (PGY-2 and above). (Doc. 83-7, essential Plaintiff's at 27; Doc. functions, treating on 89-3, at 50.) December physician, 6, Upon 2017, certified reviewing Dr. Plaintiff these McCall, should as be able to accomplish the essential functions of an anesthesiology resident. (Doc. 89-2, at 31.) However, after Dr. McCall met with Dr. Meiler and Dr. Arthur on January 3, 2018, he decided to 46 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 47 of 63 withdraw his signature from approving Plaintiff. (Id. at 32.) He removed his signature because he found out from Dr. Meiler and Dr. Arthur about Plaintiff's performance issues, specifically that he could not show up on time to residency - he did not remove condition. McCall his approval due to Plaintiff's medical (Doc. 75, at 145, 147-148; Doc. 89-2, at 32.) explained that part of Plaintiff's performance Dr. issues could have been due to his narcolepsy, however there was no way to know how much could be attributed to the diagnosis. 75, at 148.) from the (Doc. Plaintiff admits Dr. McCall withdrew his signature essential functions document, but he disagrees with Defendant's characterization that he was unqualified to perform the essential functions of an anesthesiology resident. (Doc. 89-3, at 51.) The Court first looks at the evidence of the essential functions for an anesthesiology resident, focusing primarily on arriving on time and overnight call. As to Plaintiff's tardiness, Defendant argues that even prior to his narcolepsy diagnosis. Dr. Arthur received complaints about Plaintiff from faculty and senior residents regarding his tardiness. (Doc. 83- 2, residents at 13.) Plaintiff admits faculty and senior contacted Dr. Arthur about his performance, and that prior to his medical leave he was late three times; however, he disputes that his performance was poor and argues he never committed a medical error resulting in an injury to a patient. 47 (Doc. 89-3, Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 48 of 63 at 24-25.) Ultimately, Plaintiff disputes he was late with the consistency Defendant claims but does not deny being late on at least three occasions prior to his diagnosis. (Id. at 25.) The Parties agree residents are told from the beginning of residency how important it is to always be on time, both at the start of shift and returning from breaks. (Id. at 7.) Furthermore, Plaintiff knew first year residents were expected to be at work no later than 6:30 AM each day (and earlier if on cardiothoracic rotation) and have their operating room completed patient interviews by 7:00 AM. set up (Id.) and have Plaintiff also admits an anesthesiologist being late can have ramifications to patient safety, can have operational consequences, negatively affect the efficiency of a procedure. and can (Id. at 9, 11, 13.) Using the factors set forth above, the Court finds there is no genuine dispute of material fact that being on time is an essential Plaintiff function states he of being "disputes" an the anesthesiology contention resident. he was not qualified to perform the essential functions of his residency based on all the evidence about his timeliness; however, he agrees with all the components that qualify arriving on time as an essential function of the position, and therefore the Court finds his "dispute" self-serving and only for trying to defeat this claim. the purpose of (See e.g. id. at 6, 7 9, 10.) The record is filled with evidence demonstrating the importance of 48 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 49 of 63 being on time as a resident, and no reasonable juror could determine arriving on time is not an essential function of this position. Furthermore, essential function employee from otherwise. because performing See Jackson (citations omitted). now being examines on not being any v. time job for at any functions, Veterans is an prevents an essential or work Admin., 22 job F.3d 277, 279 Having made this determination, the Court whether Plaintiff is a qualified individual, meaning whether with or without reasonable accommodation, he can perform this essential function of his job without jeopardizing patient safety. See Leme, 248 F. Supp. 3d at 1341 (finding that one who does not come to work cannot perform any of his job functions, essential or otherwise) (citations omitted). The undisputed evidence shows that before his narcolepsy diagnosis. Plaintiff arrived late to work at least three times. (Doc. 89-3, at 24, 25.) medical start of leave. After his diagnosis and his return from Defendant alleges Plaintiff was late for the his shift at least sixteen times, returned late from lunch break at least four times, and called out sick at least five times. (Id. at 47.) Plaintiff again disputes the frequency of his tardiness, but admits he was late at most four times during this period. (Id.) Nevertheless, Plaintiff admits he showed up late at least seven times, both before and after his medical leave. Further, Plaintiff admits that an anesthesiologist being late can have ramifications on patient 49 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 50 of 63 safety. his (Id. at 9.) tardiness, remediation he While Plaintiff disputes the frequency of does not due to plan including his tardiness. dispute his that he was placed unsatisfactory (Id. at 30-32.) on a performance, This further supports the Court's finding that being on time is an essential function of the job and that Plaintiff was failing to fulfill it, because the Department clearly was concerned with this and was taking steps to try and rectify the situation. Based on Plaintiff's inability to show up on time on at least seven occasions, both before and after his narcolepsy diagnosis, he failed to fulfill one of the essential functions of his residency. ramifications conclusion on that Additionally, because being late can have patient safety, Plaintiff posed the a threat safety of others when he was tardy. Sch. Dist., 998 'direct threat' F.3d 1203, defense 1216 relates qualified individual - prong because it focuses on n.9 to the also to the support the health and See Todd v. Fayette Cnty. (11th whether two of whether facts the Cir. the 2021) ("The employee is a prima facie case - plaintiff can perform the essential functions of [his] job." (citation omitted)); see also Leme, 248 F. Supp. 3d at 1346 ("In a medical setting, the ability to ensure patient safety is, inherently, a component of every essential function of the job." (quoting Collis Gwinnett Cnty., 156 F. Supp. 2d 1342, 1345 (N.D. Ga. 2001)).) 50 v. Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 51 of 63 Although medical the Parties error resulting agree in Plaintiff injury to a never committed patient, that is a not enough to overcome the evidence that he often posed a threat to the health and safety of his patients by being tardy. 89-3, at 9, 53.) (See Doc. The Rehab Act does not require employers to wait until a perceived treat becomes real or results in injury. Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1317 n.7 (11th Cir. 2009) (quoting Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir. 1999)). Furthermore, based on Plaintiff's status in residency, constantly resident he and was attending under faculty supervision member and by they were ensure patient safety even if mistakes were to arise. 1, at 12.) unqualified Nevertheless, to perform the the evidence essential proves a senior able (Doc. 83- Plaintiff functions because he could not consistently show up on time. to of his was job Despite the dispute about how many times he was actually late, the failure to be timely on at least the seven admitted occasions posed a threat to the health and safety of patients, further making him unqualified for determination individual, that it his position. Plaintiff will not Based on was not an analyze the other function of taking overnight call. the otherwise listed Court's qualified essential While the Court's analysis could stop here, out of an abundance of caution, it will also address Defendant's arguments regarding prong three of a Rehab Act claim: whether Plaintiff has 51 proven he was subjected to Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 52 of 63 unlawful discrimination as the result of his disability. See Garrett, 507 F.3d at 1310. 2. Disability Discrimination Defendant individual, argues he was that not even if subjected Plaintiff to was unlawful a qualified discrimination because of his disability, and even if he could name a proper comparator, which he cannot, it would not be enough to salvage his claim because he cannot show Defendant took any against him solely based on his narcolepsy diagnosis. 1, at 14-15.) jury could action (Doc. 83- Plaintiff argues there is evidence from which a find discriminatory intent. (Doc. 89-1, at 7.) Specifically, he argues there is direct evidence that decision makers viewed his diagnosis with narcolepsy as making him ineligible to continue in residency, the decision makers created an evaluation process with discriminatory intent and outcome, there were inconsistent standards during his evaluation process, Defendant failed to accommodate his request for naps, there were unfair restrictions in his work and discriminatory comments made by co-workers and decision makers, and Defendant dismissed him and refused to transfer him based on his disability. (Id. at 7- 20.) For a prima facie discrimination claim under the Rehab Act, Plaintiff qualified, must and prove he finally, had that a he disability, was discrimination because of his disability. 52 was subjected to otherwise unlawful See Garrett, 507 F.3d Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 53 of 63 at 1310. This evidence. Todd, can be 998 proven F.3d with at direct 1214. or circumstantial "[D]irect evidence is evidence that 'if believed, proves the existence of fact without inference or presumption.'" Id. at 1215 (quoting Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)). "Only the most blatant remarks, whose intent could mean nothing other than to discriminate constitute on direct the basis evidence of of some impermissible discrimination." Id. factor On the other hand, "evidence that merely suggests, but does not prove, a discriminatory motive is not direct evidence." Id. (citations and quotation marks omitted). Defendant moves for summary judgment on the premise that Plaintiff has failed to show it took any action solely based on his narcolepsy diagnosis. Plaintiff argues there is direct against him (Doc. 83-1, at 15.) evidence of discrimination, specifically through the decision makers' views that Plaintiff's narcolepsy diagnosis made him ineligible to continue residency. (Doc. 89-1, at 7.) However, even if the decision makers did have it only suggests, these thoughts, discriminatory motive, direct evidence. alleges that the which theory, insufficient See Todd, 998 F.3d at 1215. decision could be a "big liability" evidence is but does makers' concerns not prove, to qualify a as Plaintiff himself arose because he which does not support his direct but instead goes to show Plaintiff circumstantial evidence to try and prove his claim. 53 is using (See Doc. Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 54 of 63 89-1, at 2.) Ultimately, the Court finds Plaintiff failed to meet his burden of alleging direct evidence of discrimination. When there claim must is a be lack of direct analyzed under evidence the of burden discrimination, shifting a framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, a plaintiff establishes a prima facie case of disability discrimination by showing "(1) he ha[d] a disability (2) he [was] otherwise qualified for the position; and (3) he was subjected result of his disability." (11th Cir. rebuttable 1999) to discrimination omitted). that the Doing employer See McDonnell Douglas, 411 U.S. at 802. shift to the nondiscriminatory employer reason as the Sutton v. Lader, 185 F.3d 1203, 1207 (citation presumption unlawful to for acted creates a illegally. "The burden then must articulate the so some legitimate, [termination]." Id. The employer's burden is an "exceedingly light" one of production, not persuasion, evidence that that [the which could means allow plaintiff's] discriminatory reason." a the employer rational discharge "need only fact finder was not to made produce conclude for a Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998), abrogated on other grounds by Thomas v. Esterle, No. 21-10638, 2022 WL 2441562 (11th Cir. July 5, 2022); Meeks v. Comput. Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994) (quoting Miranda v. B & B Cash Grocery Store, 54 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 55 of 63 Inc ♦ , 975 F.2d 1518, 1529 (llth Cir. 1992)). If the employer meets this burden, the burden shifts back to the plaintiff who can only avoid summary judgment by presenting "significantly probative" evidence that the proffered reasons are pretextual. Young V. Gen. Foods Corp., 840 F.2d 825, 829 (llth Cir. 1988) .'^ Using this standard, Plaintiff turn to has shown address nondiscriminatory the evidence whether reason Court will assume arguendo that of Defendant's Defendant for the discrimination articulated termination. a and legitimate, Defendant put forth numerous reasons for the actions taken against Plaintiff, arguing it clearly had a legitimate, non-discriminatory reason for terminating him. "numerous and continued (Doc. 83-1, at 22.) ongoing documented unprofessionalism, First, it cites to complaints chronic of Plaintiff's tardiness, lack preparedness, unreliability, and risk to patient safety." Then, it received references both before complaints and of after Plaintiff's his narcolepsy of (Id.) performance it diagnosis from various sources which "guided and served as the basis for all actions taken against Plaintiff, including his ultimate contract non-renewal." (Doc. 95, at 7.) Further, it cites to Plaintiff ^ Plaintiff argues for a different standard to be used in employment discrimination cases, arguing he only needs to "cast sufficient doubt" regarding the Defendant's proffered reasons. (Doc. 89-1, at 5 (citing Combs V. Plantation Patterns, 106 F.3d 1519, 1538 (llth Cir. 1996).) However, Plaintiff's argument fails to address the entire case, which further provides that a plaintiff must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions to the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Combs, , 106 F.3d at 1538. The Court finds this description consistent with the standard it employs by using the McDonnell Douglas framework. 55 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 56 of 63 admitting to the truthfulness of several of the received complaints, and additional evidence that his performance issues were discussed residency. relies on with him on numerous occasions throughout (Id. (citing Doc. 80, at 134:31-136:16).) all of this evidence, as well as the his Defendant evidence of Plaintiff's remediation plan, which was implemented before his narcolepsy diagnosis, and in which he was warned that if another serious complaint was lodged against permissible grounds for dismissal. has an exceedingly light burden him, (Id. at 8.) to it would be Since Defendant articulate a legitimate, nondiscriminatory reason for its action, the Court finds it has satisfied its burden of showing Plaintiff's discharge made for a discriminatory reason.^ back to Plaintiff "significantly to probative" are pretextual. determine evidence was not Therefore, the Court turns whether that the he can provide proffered reasons See Young, 840 F.2d at 829. "It is not enough for a plaintiff to demonstrate that an adverse employment action was based partly on his disability. Rather, under the [Rehab Act], a plaintiff must prove that he suffered an adverse employment action 'solely by reason of his handicap." Ellis, 432 F.3d at 1326 (internal citations ^ Plaintiff argues that, when viewing the evidence in the light most favorable to him, there is genuine dispute regarding whether Defendant was referring to his diagnosis or past performance, (Doc. 99, at 3.) However, the Court finds this to be without merit because the evidence clearly differentiates between issues before and after Plaintiff's diagnosis, and that the issues with Plaintiff during both time periods were legitimate and concerning. 56 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 57 of 63 omitted); see also Porterfield v. Soc. Sec. Admin., No. 20- 10558, 2021 WL 3856035, at *4 (llth Cir. Aug. 30, 2021) ("The burden for establishing causation under the requires 'solely proof by that reason the of individual her was [Rehab Act] discriminated disability.'" (citation against omitted).) Plaintiff argues there is sufficient evidence from which a jury could find the decision to terminate him was based solely on his diagnosis with undisputed narcolepsy. facts prove (Doc. that 99, Plaintiff at 6.) had However, numerous the issues reported before he was ever diagnosed with narcolepsy, and this alone causes his discrimination claim to fail. First, even at the start of his residency, some faculty and senior residents contacted Dr. Arthur about Plaintiff's performance. at 24.) Additionally, competence grade of he was given unsatisfactory from an (Doc. 89-3, overall July 1, clinical 2016 through December 31, 2016, also before he was diagnosed with narcolepsy. (Id. at 28.) The report found Plaintiff to be unsatisfactory in the areas of "demonstrates honesty, integrity, reliability, and responsibility," "reacts (Id.) to "learns stressful from experience, situations in an knows limits" appropriate and manner." Furthermore, Plaintiff was placed on a remediation plan due to his unsatisfactory reports that were provided to the ABA, which alerted him to Defendant's concerns with his progress and made his aware he was falling behind in his program. (See Doc. 89-3, at 30-34.) the With this evidence in the record, 57 Court Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 58 of 63 finds it impossible for a fact finder to find terminated solely because of his disability. Defendant's characterization however, he admits there of his work Plaintiff was Plaintiff disputes at numerous points; were numerous complaints and that he was put on remediation due to his unsatisfactory performance, again illustrating that even if he disagreed with the findings, they were still made by Defendant, and this took place before he was diagnosed with narcolepsy. (See id.) Based on all of this. Plaintiff has failed to prove that he was an otherwise qualified individual or that he was subjected to unlawful discrimination solely because of his disability; therefore, his claim for party who disability discrimination under the Rehab Act fails. "Summary judgment should be entered against a fails to make a showing sufficient to establish the existence of an essential burden of element proof at of its case, trial." (citation omitted). Leme, required for a Rehab he and has McDonnell Douglas, probative" entitled to failed Plaintiff evidence pretextual. on 248 F. which it Supp. bears 3d at the 1340 Plaintiff bears the burden of proving the three elements Act and that discrimination to do failed to Defendant's Young, 840 F.2d at 829. summary so. judgment discrimination claim. 58 on claim under Furthermore, the under present "significantly proffered reasons are Therefore, Defendant is Plaintiff's disability Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 59 of 63 3. Failure to Accommodate Finally, Defendant moves for summary judgment on Plaintiff's failure to accommodate claim, and argues that even if Plaintiff was a qualified individual, he was responsible for the breakdown in the accommodation process, his alleged requests were untimely and not required, any request to transfer to new residency was not reasonable or required, and his after-the-fact requested accommodation to finish residency without night call is not required because it would cause an undue hardship. 83-1, at 24-31.) transfer residency to (Doc. In response. Plaintiff argues he requested a another program, residency the request program while was for not a still in the promotion, he discussed the transfer with Dr. Arthur, and she failed to make it happen. (Doc. 89-1, at 32-34.) "The plaintiff bears the burden of identifying a reasonable accommodation - that is, an accommodation that enables him to perform the 'essential functions' of his position." Goldberg v. Fla. Cir. Int'l (citation Defendant Univ., 838 omitted). refused to F. App'x Plaintiff's accommodate another residency program. Court turns to 487, Defendant's 492 (11th Complaint his request (Doc. 50, at 12.) arguments only to 2020) alleges transfer to Therefore, the regarding Plaintiff's request to transfer, specifically that his request was untimely and unspecific. (Doc. 83-1, at 27.) were upon discussions Plaintiff's 59 Defendant admits there return from medical leave Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 60 of 63 about helping him transfer to a different program. 268:18-269:13.) (Doc. 80, However, Plaintiff represents it was not until after the decision not to renew his residency contract was made that he actually requested a transfer to another program. (Id. 268:4-17.) "[T]he duty to provide a reasonable accommodation is not triggered unless a specific demand for an accommodation has been made." 1361, Gaston v. 1363 (11th correctly argues, grant a Bellingrath Cir. of termination." 1999). & Home, Inc., Furthermore, as 167 F.3d Defendant [a] n employer generally is not required to request occurrence Gardens for reasonable workplace Alvarez v. accommodation misconduct Sch. Bd. that of after the warrants Broward Cnty., 208 Supp. 3d 1281, 1286 (S.D. Fla. 2016); (Doc. 83-1, at 28). F. An "employee must show that he requested a reasonable accommodation while on the job . . . but the employer simply refused to make that accommodation, thereby discriminating against the employee at the time." Fussell v. Ga. Ports Auth., 906 F. Supp. 1561, 1570 (S.D. Ga. 1995). This Court has explained that "[w]ithout this requirement the employee could casually mention a claimed disability, say nothing, wait to be terminated, then think up new suggested accommodations years later while in the midst of [Rehab Act] litigation." Id. not transfer make a request for Plaintiff himself admits he did until after the Department decided to terminate him; however, he argues he "was still on 60 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 61 of 63 the job and in the residency program" because his contract did not end until a few months later. (Doc. 89-1, at 33.) While the Court agrees that Plaintiff was still "on the job" when he made the request, occurrence of his request workplace was misconduct still that made after caused the termination, making it untimely under the Alvarez standard, causing his claim to fail. Nevertheless, out of an abundance of caution, the Court will address the Parties' additional arguments. As explained above, the initial burden is on Plaintiff to make a sufficiently specific request - it does not require magic words but must be definite enough the employer is aware of the condition and the desired accommodation. Laun v. Bd. of Regents of Univ. Sys. of Georgia, No. CV 118-033, 2019 WL 4694940, at *9 (S.D. Ga. Sept. Defendant 25, 2019) (citation omitted). disagree about whether or not Plaintiff and he specifically requested a transfer to the internal medicine residency. 89-3, at 40.) (Doc. But regardless of that fact. Defendant asserts any request to be transferred was not reasonable or required. (Doc. 83-1, at 29.) It argues that since the residency programs are all different and have different criteria, any new program would have to agree Department had program accept to Plaintiff no to power accept or Plaintiff. the resident authority (Id.) to transfer force Defendant a and the different asserts that would have had to take steps on his own, including applying and interviewing, to be accepted into another program 61 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 62 of 63 and that was not something it could do for him. (Id. at 29-30.) Defendant admits there is no formal process for requesting a transfer but compares the situation to another former resident, M.W., who expressed a desire to transfer, worked with the new program to apply, interview, and eventually effectuate transfer when the program agreed to accept him. Defendant argues in this instance Plaintiff his own, (Id.) which made the request a (Id. at 30.) took no action on impossible and unattainable. Plaintiff disputes this contention, arguing it was not his fault, but that a reasonable jury could find he requested a transfer (Doc. and 89-1, Dr. at Arthur 34.) failed to However, facilitate Plaintiff's the transfer. argument is not legally sound or factually supported, because even accepting as true that medicine he timely residency, suggestion, that requested there the is a transfer no into evidence, anesthesiology the or internal even department automatically make that happen simply by his request. any could The Rehab Act "imposes no requirement upon an educational institution to lower or to effect substantial modifications accommodate a handicapped person." of standards to J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921, 926 (11th Cir. 2016) (quoting Se. Cmty. Coll. V. findings, Davis, the 442 Court U.S. finds 397, 413 Plaintiff (1979)). has Based failed to on these put forth evidence sufficient to successfully prove that Defendant failed to accommodate him, because his request was untimely, and there 62 Case 1:19-cv-00022-JRH-BKE Document 109 Filed 03/20/23 Page 63 of 63 are no avenues for transfer that he put forth or are factually possible that could have without work of his own. of evidence in to made his transfer successful Defendant's arguments point to a lack Plaintiff's unable to prove entitled just claim and demonstrate he would be his claim at trial; therefore, Defendant is summary judgment on Plaintiff's request to accommodate claim. IV. CONCLUSION For the foregoing Defendant's motion reasons, IT IS HEREBY ORDERED to exclude (Doc. 82) is GRANTED that IN PART and DENIED IN PART and Defendant's motion for summary judgment (Doc. 83) is GRANTED. The Clerk is DIRECTED to ENTER JUDGMENT in favor of Defendant, TERMINATE all other pending motions, if any, and CLOSE this case. ORDER ENTERED at Augusta, Georgia, this day of March, 2023. DAL HALy CHIEF JUDGE UNITED STATES^DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA 63

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