United States District Court, D. New Jersey
Linares, Chief District Judge.
matter conies before the Court by way of Defendants Rutgers
University New Jersey Medical School ("Rutgers")
and Barry Levin, M.D.'s motion for summary judgment or,
in the alternative, to strike Plaintiff Jennifer Michaels,
M.D.'s claim for punitive damages, pursuant to Federal
Rule of Civil Procedure 56 and Local Civil Rule 56.1. (ECF
No. 83). Plaintiff has filed opposition, (ECF No. 96), and
Defendants have replied thereto, (ECF No. 102). The Court
decides this matter without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons set forth below,
the Court grants Defendants' motion to the extent that it
seeks judgment on Plaintiffs claim for retaliation in
violation of the Family and Medical Leave Act, 29 U.S.C.
§ 2601 ("FMLA"), but denies Defendants'
motion as to all other claims.
September 11, 1987, Plaintiff began working as an Assistant
Professor for Defendant Rutgers. (Defs.' SMF ¶ 8).
From 2011 through 2014, the period relevant to this
litigation, Plaintiff was a non-tenured Assistant Professor
in Defendant Rutgers' Neurology Department. (Defs.'
SMF ¶ 10). Plaintiffs status as non-tenured meant that
she could be reappointed for terms of one to five years.
(Defs.' SMF ¶ 10). Plaintiffs responsibilities
included: (1) "on service" rounds which consisted
of patient consults; (2) "grand rounds" which
entailed clinical conferences; (3) teaching seminar courses;
and (4) co-chairing the Muscular Dystrophy Association Clinic
("MDAC") with Dr. John Bach. (Defs.' SMF
2011, Defendant Levin was appointed Interim Chair of the
Neurology Department. (Defs.' SMF ¶¶ 17 18).
Upon his appointment, Defendant Levin met with each member of
the Neurology Department in order to discuss workload and
maximize efficiency. (Defs.' SMF ¶ 20). Productivity
was measured by a physician's teaching, research, and
Relative Value Units ("RVU"), which is a
statistical measure of the value of services rendered to
patients. (Defs.' SMF ¶22).
Defendants' Version of Events
Plaintiffs Initial Performance Review
his first few meetings with Plaintiff, Defendant Levin set
goals for Plaintiff, which included increasing clinic
productivity and patient registration. (Defs.' SMF ¶
21). According to Defendants, Plaintiffs work for the MDAC
predominantly involved patient visits "as opposed to
achieving academic responsibilities" for Defendant
Rutgers and yielded a relatively low RVU score. (Defs.'
SMF ¶¶' 29-31, 33-35). This clinical work, in
combination with Plaintiffs teaching and "rounds"
responsibilities, was allegedly insufficient to meet the
Neurology Department's productivity standards.
(Defs.' SMF ¶¶ 24-27, 35-37). Despite
Plaintiffs promises, Defendants claim that Plaintiff failed
to increase patient visits in the MDAC. (Defs.' SMF
Plaintiffs Assigned Clinical Work
around the Spring of 2012, Defendant Levin assigned Plaintiff
to the Ambulatory Care Clinic ("ACC"), supposedly
to provide Plaintiff with an opportunity to increase her RVU
and "fulfill the Neurology Department's fiscal
responsibility." (Defs.' SMF ¶ 38). In at least
one other circumstance, Defendant Levin allegedly assigned
other physicians who were younger to the ACC to give them the
opportunity to raise their RVU, (Defs.' SMF ¶¶
39-40). Defendants claim that Plaintiff struggled
to maintain her responsibilities to both the MDAC and ACC,
which led Defendant Levin to repeatedly notify Plaintiff of
his concerns regarding her productivity levels.
(Defs.'SMF ¶¶41-48, 50).
February 2013, a physician emailed Defendant Levin to inform
him that Plaintiffs performance in the ACC was deficient,
because Plaintiff was too slow with seeing patients.
(Defs.' SMF ¶ 53). According to Defendants, medical
residents and students also complained that working with
Plaintiff negatively affected their learning experience and
ability to see all of their patients. (Defs.' SMF
¶¶ 55-56). Supposedly as a result of these
complaints, Defendant Levin informed Plaintiff that: (i)
clinic staff would schedule her appointments at a rate of one
hour for new patients and thirty minutes for follow-up
patients; and (ii) she would no longer have the assistance of
medical residents or students. (Defs.' SMF ¶¶
54, 56). Despite these complaints, however, Defendants
concede that Plaintiff increased her RVU score through her
work with the ACC. (Defs.' SMF¶58).
Plaintiffs Vacation & FMLA Leave Request
20, 2013, Plaintiff submitted several vacation requests for
June and July of 2013, which included five days that
Plaintiff was scheduled to work in the ACC. (Defs.' SMF
¶¶ 59-60). According to Defendants, Defendant Levin
denied Plaintiffs request, as many of the requested days
overlapped with her ACC responsibilities, and he had his
assistant inform Plaintiff of his decision. (Defs.' SMF
¶¶ 61-62). Plaintiff allegedly failed to recognize
the statement of Defendant Levin's assistant as having
any authority and was nevertheless absent from work on the
requested vacation days. (Defs.' SMF ¶¶ 62-63).
Upon learning that Plaintiff had taken off on her requested
vacation days and that she had only attended one clinic day
in June 2013, Defendant Levin sent Plaintiff a formal letter
of reprimand in July 2013, which was forwarded to the Vice
Dean of Defendant Rutgers. (Defs.' SMF ¶¶ 65,
67). A few days later, Defendant Levin addressed all of the
clinical faculty regarding "the importance of attending
scheduled ACC[s]." (Defs.' SMF ¶68).
discussed in more detail below, infra Section I.B.3,
it is uncontested that Plaintiff then requested FMLA leave,
which was approved by Defendant Levin.
Plaintiffs Subsequent Performance Review &
September 11, 2013, Plaintiff received her performance
evaluation from Defendant Levin for the period of July 2012
through June 2013. (Defs.' SMF ¶ 92). At the
evaluation, Defendant Levin recognized Plaintiffs talent as
"possibly the best neuromuscular physician in the state
of New Jersey," but further stated that she: (i)
provided deficient service to the Neurology Department; (ii)
did minimal training; and (iii) "had a limited scholarly
role." (Defs.' SMF ¶ 93). In reaching this
conclusion, Defendant Levin employed a separate measurement
which looked at Plaintiffs patient encounters and overall
productivity. (Defs.' SMF ¶¶ 94-98). Defendant
Levine allegedly utilized this unique measurement to grade
Plaintiffs performance because he wanted to determine
"what was fair to ask [Plaintiff] to do."
(Defs.' SMF ¶¶94-98). Defendant Levin stressed
to Plaintiff that her performance was "well below
acceptable levels" and must be improved over the
following year. (Defs.' SMF ¶ 99). Defendant Levin
also gave Plaintiff specific goals to meet by the beginning
of 2014, which included seeing a minimum of five patients per
four hours during her weekly ACC duties. (Defs.' SMF
October 2013, Plaintiff, through counsel, sent a letter to
the Dean of Defendant Rutgers, alleging that she has been
discriminated against based on her gender and age.
(Defs.' SMF ¶¶ 104-06). The letter was referred
to Defendant Rutgers' Office of Employment Equity
("OEE"), which then attempted to contact Plaintiff
in order to investigate her claims. (Defs.' SMF
¶¶ 107-09). According to Defendants, Plaintiff
failed to schedule a mandatory interview with the OEE, and
therefore no further action was taken on her complaints.
(Defs.' SMF ¶¶ 109-11).
the months following Plaintiffs evaluations, Defendants
allege that she did not improve her performance and continued
to take an allegedly excessive amount of time with each
clinic patient. (Defs.' SMF ¶¶ 119-21). When
Plaintiffs continued appointment was being considered in
early 2014, Defendant Levin recommended to the Clinical
Integration Group of Defendant Rutgers-i.e., the
board that determines faculty appointments-that Plaintiffs
contract not be renewed. (Defs.' SMF ¶¶
124-25). On February 26, 2014, Plaintiff was notified by way
of a letter from the Dean of Defendant Rutgers that her
appointment would not be renewed and that her position would
expire on June 30, 2014. (Defs.' SMF ¶¶
Plaintiffs Version of Events
Plaintiffs Performance & Defendant Levin's
to Plaintiff, Defendant Levin's productivity critiques
were false and disparate. Specifically, Plaintiff claims
that, contrary to Defendants' allegations, she increased
her productivity each time it was requested by Defendant
Levin, which was evidenced by: (i) a 33% increase in her RVU
productivity score from 2011 to 2013; (ii) continued work
with the MDAC and teaching seminar courses; (iii) an increase
in patient visits of around 45% since 2009; (iv) possessing
the fifth highest RVU score in 2013 out of the Neurology
Department's twelve physicians; (v) "working 12-hour
days [in 2013], [with] five months on inpatient service in
addition to her outpatient responsibilities"; and (vi)
emails from other doctors sent to Defendant Levin praising
Plaintiffs work. (Pl.'s SMF ¶¶ 32 33, 88,
response to these improvements, Defendant Levin allegedly
added new and challenging responsibilities to Plaintiffs
schedule in an attempt to move "the goal post"
further away from her. (Pl.'s SMF ¶¶ 71-74).
For example, after Plaintiff raised her RVU score, Defendant
Levin allegedly required her to obtain a 20% increase in her
productivity score by the following year, i.e.,
2014. (Pl.'s SMF ¶ 91). One physician, Dr. Hajart,
admitted that such an increased requirement to Plaintiffs RVU
score "seemed arbitrary." (Pl.'s SMF ¶
92). Plaintiff further claims that Defendant Levin used the
tallying of patient encounters to measure Plaintiffs
productivity in addition to her RVU score, which was not used
to measure the productivity of any other physician in the
Neurology Department. (Pl.'s SMF ¶¶ 91, 93,
96-99, 178). Plaintiff claims that Defendant Levin used these
inaccurate critiques and ever-changing requirements as an
excuse to berate and yell at Plaintiff. (See
Pl.'s SMF ¶¶ 25, 79, 130, 162, 164, 180).
Plaintiff further claims that Defendant Levin used Plaintiffs
allegedly fabricated underperformance as a pretext to revoke
several of her privileges, including her abilities to teach
and use a research assistant. (Pl.'s SMF¶¶63
Defendant Levin supposedly minimized Plaintiffs contributions
to the department in his communications with other
physicians. For example, Defendant Levin allegedly falsely
claimed that Plaintiff increased her RVU score by having
"no other responsibilities," and that Plaintiff
should be able to raise her RVU score even higher. (Pl.'s
SMF ¶¶ 90-91). Additionally, Defendant Levin
allegedly undermined Plaintiffs clinical work by saying that
the amount of time she spent with patients was
"inordinate." (Pl.'s SMF ¶¶ 176-77).
According to Plaintiff, Defendant Levin also spoke poorly of
Plaintiff in his emails to other physicians-for example, he
forwarded Plaintiffs request for leave to another physician
with the statement "Here we (I) go again," and told
a different physician that he deserved "a purple
heart" for sitting in on Plaintiffs performance review.
(Pl.'s SMF ¶¶ 183, 214). As time went on, and
Defendant Levin allegedly became more hostile towards her,
Plaintiff claims she experienced anxiety whenever she was
contacted by Defendant Levin. (Pl.'s SMF ¶¶ 79,
to Plaintiff, Defendant Levin was far more lenient to
Plaintiffs younger male colleagues, despite the fact that
they committed worse offenses and had lower RVU scores than
Plaintiff. (Pl.'s SMF ¶¶ 174, 178). For
example, Dr. Souayah, a male doctor twenty years younger than
Plaintiff, was never reprimanded or otherwise punished by
Defendant Levin despite the fact that he allegedly: (i)
overbilled; (ii) was audited by Medicare and forced to refund
money; and (iii) was at one point described by Defendant
Levin as "the 'wor[sf] offender.'"
(Pl.'s SMF ¶ 310). Additionally, Plaintiff claims
that only women were required to take clinical positions
outside of their area of specialty, such as Plaintiff being
assigned to the ACC. (Pl.'s SMF ¶ 62).
Plaintiffs Vacation Request & Letter to ...