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Michaels v. Rutgers University New Jersey Medical School

United States District Court, D. New Jersey

February 14, 2019



          Linares, Chief District Judge.

         This 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.

         I. BACKGROUND [1]

         A. Uncontested Facts

         On 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 ¶¶ 24-29).

         In June 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).

         B. Defendants' Version of Events

         1. Plaintiffs Initial Performance Review

         During 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 ¶ 37).

         2. Plaintiffs Assigned Clinical Work

         In or 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).[2] 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).

         In 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).

         3. Plaintiffs Vacation & FMLA Leave Request

         On May 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).

         As 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.

         4. Plaintiffs Subsequent Performance Review & Termination

         On 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 ¶ 101).

         In 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).

         During 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 ¶¶ 122-29).

         C. Plaintiffs Version of Events

         1. Plaintiffs Performance & Defendant Levin's Conduct

         According 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, 146-51, 221).

         In 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 67).

         Moreover, 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, 87).

         According 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).

         2. Plaintiffs Vacation Request & Letter to ...

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