CAMERON McGOWAN CURRIE, Senior District Judge.
This matter is before the court on Plaintiff's motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. ECF No. 198 ("Rule 59(e) Motion"). For reasons set forth below, the motion is denied.
Through this action, Plaintiff, Afraaz R. Irani, M.D., ("Plaintiff" or "Dr. Irani"), challenges his treatment during and dismissal from the Orthopaedic Surgery Residency Program ("Residency Program") sponsored by Defendant Palmetto Health ("Palmetto Health") and operated in conjunction with Defendant University of South Carolina School of Medicine ("USC-SOM") (collectively "Entity Defendants"). Plaintiff's Amended Complaint asserts six causes of action against the Entity Defendants and an additional seven causes of action against either or both David E. Koon, M.D. ("Dr. Koon"), Director of the Residency Program, and John J. Walsh, IV, M.D. ("Dr. Walsh"), Chair of USC-SOM's Orthopaedic Residency Program.
Judgment was entered on June 1, 2016, following consideration of Defendants' three separate motions for summary judgment and two related motions. ECF No. 189 (Judgment); ECF No. 188 ("Summary Judgment Order"). While the court did not accept all arguments for summary judgment, it did, ultimately, conclude all Defendants were entitled to judgment as a matter of law on all claims. ECF No. 188.
On June 28, 2016, Plaintiff moved to extend time to file a memorandum in support of his intended motion to alter or amend. ECF No. 196. This extension was sought based on the length and complexity of the underlying order and counsel's health. Id. The motion stated: "Plaintiff will file his motion to alter or amend the judgment outlining the basic grounds for his request for reconsideration before the 28-day deadline expires; however, Plaintiff requests an additional 28days to file the supporting memorandum of law." Id. at 2. The court granted this request. ECF No. 197.
Plaintiff filed his Rule 59(e) Motion within the deadline for doing so. ECF No. 198. The motion lists nine areas in which Plaintiff believes the court erred. Collectively, the alleged errors challenge the court's determinations Plaintiff failed to raise a genuine issue of material fact on the following issues:
ECF No 198.
Plaintiff filed his memorandum in support of these arguments on July 27, 2016. ECF No. 210 ("Memorandum in Support").
The Fourth Circuit recognizes three grounds for altering or amending a judgment pursuant to Rule 59(e): "`(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct clear error of law or prevent manifest injustice.'" United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)). "Rule 59(e) motions may not be used, however, to raise arguments which could have been raised prior to issuance of the judgment, nor may they be used to argue a case under a novel theory that the party had the ability to address in the first instance." Pac. Ins. Co., 148 F.3d at 403. Relief under Rule 59(e) is "an extraordinary remedy which should be used sparingly." Id. (internal marks omitted).
Plaintiff does not address the standard applicable to motions to alter or amend judgment either in his motion or memoranda. This is true even of his reply memorandum and despite Defendants noting this in their opposition memoranda. For reasons explained below, Plaintiffs arguments do not, in any event, demonstrate clear error, manifest injustice, or any other basis for altering or amending judgment.
In his later-filed Memorandum in Support and Reply, Plaintiff relies on both Boyer-Liberto and Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208 (4th Cir. 2016), in arguing the court erred in granting judgment on his Hostile Environment Claims. ECF Nos. 210 at 1-6 and 214 at 1-4. Plaintiff also lists six incidents (or categories of incident), which he maintains should be considered in evaluating the totality of the circumstances: (1) a statement Dr. Koon made to Plaintiff that another department was "just happy to have [residents who] can speak English"; (2) assignment of the "How to Swim with Sharks" article to Plaintiff for presentation at a Journal Club meeting in July 2011 and Dr. Koon's comment the article was not assigned randomly; (3) Dr. Koon's statement to Plaintiff during the August 2011 meeting in which Plaintiff was placed on remediation that Dr. Koon had fired residents from the program and would have to sign off on any graduation papers; (4) Dr. Koon's hostile and intimidating November 3, 2011 email and related telephone conversation chastising Plaintiff for his response to a directive to complete dictation on a patient and stating he would have fired Plaintiff on the spot had Plaintiff not been on vacation; (5) a December 5, 2011 faculty meeting in which Plaintiff felt intimidated and threatened by, inter alia, an inquiry whether he was committed to the program and whether he had hired an attorney; and (6) instances in which Dr. Koon referred to Plaintiff as "Achmed the Terrorist" or commented he might blow something up, which occurred sometime in late 2011.
Even if timely raised, the additional incidents would fail to support a hostile environment claim. As explained in more detail below, item one is a conceivably-ethnic comment, but there is no connection between the comment and Plaintiff's circumstances or between the comment and any otherwise adverse treatment of Plaintiff. Items two through five may involve adverse treatment, but there is no connection between these alleged actions and any racially or ethnically offensive comments, behavior, or evidence of motivation. The incidents in item six fail for reasons addressed in the Summary Judgment Order. ECF No. 188. at 50-52.
As explained in the Summary Judgment Order, a jury could find the comments addressed in item six were unwelcome (offensive), satisfying the first element of a hostile environment claim. The court also assumed for purposes of summary judgment that a jury could find the comments were made because of a protected characteristic (Plaintiff's ethnicity), and imputable to the employer, thus satisfying the second and fourth elements. This left the third element: whether the unwelcome comments were sufficiently severe or pervasive to alter the conditions of Plaintiff's employment. Focusing on the specific incidents on which Plaintiff relied in opposing summary judgment (the comments addressed in item six above), the court found insufficient evidence to raise a genuine issue of material fact as to this element.
Plaintiff's present argument points to five other incidents of adverse treatment. The first, Dr. Koon's comment that another department was just happy if its residents spoke English, may suggest Dr. Koon harbored some bias against foreign residents, at least those who had difficulty speaking English. The comment did not, however, suggest any hostility towards Plaintiff or any race or ethnicity to which he belonged. By Plaintiff's own description, Dr. Koon characterized residents of the Orthopaedic Surgery Residency Program (a group to which Plaintiff belonged) as superior to residents in other programs (a group to which Plaintiff did not belong), before stating faculty in another program were just happy to have residents who spoke English. Plaintiff has proffered no evidence that either Dr. Koon or Plaintiff himself perceived Plaintiff as having difficulty speaking English or otherwise falling within the category of persons to whom the comment referred. Thus, while the comment had an ethnic component and may have been unwelcome (offensive) in the general sense, there is no evidence it was directed to Plaintiff (or Plaintiff perceived it as directed to him) because of his race or ethnicity (third element).
For present purposes, the court will assume without deciding that a jury could find the four incidents addressed in items two through five were unwelcome in a general sense, collectively altered the conditions of Plaintiff's employment, and are imputable to the employer (first, third, and fourth elements). However, like the incident addressed above, nothing about these incidents suggest they occurred because of Plaintiff's race or ethnicity (third element). For example, there is no evidence any conceivably-ethnic comment was made in connection with these incidents. Neither is there any evidence the comments, correction, discipline, or inquiries were ethnically or racially motivated or otherwise connected with the conceivably-ethnic comments addressed in the first and sixth item (references to residents who had difficulty speaking English or suggesting a connection to terrorism). The only connection between the conceivably-ethnic comments and adverse treatment is (1) Dr. Koon made the two conceivably-ethnic comments, (2) Dr. Koon is responsible for or was involved in the incidents addressed in items two through five; and (3) most of the incidents (exclusive of the comment in item one) occurred during the same six month period.
The lack of connection between the ethnically-offensive comments and otherwise adverse treatment distinguishes this case from Boyer-Liberto and Guessous. The infrequency of the conceivably-ethnic comments also distinguishes the comments in the present case from those in Guessous. There the court addressed a course of conduct directed to "an Arab-American Muslim woman from Morocco," which occurred over a four-and-a-half year period and was characterized by a supervisor's frequent disparaging remarks about Muslims and people from the Middle East. The supervisor's comments included repeatedly characterizing Muslims as terrorists and people from the Middle East as untrustworthy. The supervisor also directed multiple comments and actions to Guessous personally relating to her ethnicity and exercised an extreme level of supervision over her work, which was consistent with his negative comments about the untrustworthiness of people from the Middle East.
While Plaintiff complains Dr. Koon interfered with his ability to perform as a resident, the suggested interference has no connection to the ethnically-offensive comments or anything suggesting an ethnically-based motivation.
Plaintiff identifies four alleged errors underlying the grant of summary judgment on his contract claims. He argues the court erred in holding: (1) Plaintiff failed to give adequate notice of documents on which he relied for his third-party beneficiary claim; (2) Plaintiff was, at most, an incidental beneficiary of any third-party contract; (3) the decision of the Accreditation Council for Graduate Medical Education ("ACGME") precludes a finding Defendants breached ACGME standards; and (4) USC-SOM was not a joint employer with Palmetto Health. These arguments are addressed separately below.
In his subsequent Memorandum in Support and Reply, Plaintiff expands these arguments to apply to both of his contract claims (first-party contract claim in addition to third-party beneficiary claim). He also argues he gave fair notice of his intent to rely on five (rather than three) documents in support of these claims.
Plaintiff attaches the April 17, 2015 email, which reads as follows:
ECF No. 210-1 (emphasis added).
Palmetto Health's counsel responded (1) the referenced documents had been produced on February 5, 2015, and (2) none were new to Plaintiff's counsel as they were produced in prior litigation (involving claims by a different resident). Id.
Plaintiff also proffers evidence his counsel emailed an unsigned version of supplemental discovery responses to defense counsel on June 1, 2015. ECF No. 210-3.
In addition to arguing Defendants had actual notice of his intent to rely on the five listed documents for his contract claims, Plaintiff argues he was unable to respond to Defendants' arguments regarding lack of notice. He asserts he could not do so because (1) Defendants first raised their notice arguments on reply, (2) the rules of this court "do not allow parties to file `surreply briefs,'" and (3) the court resolved the motion without oral argument. ECF No. 210 at 11.
Even without these concerns, Plaintiff's third specification of error fails to support alteration or amendment of the judgment. While Plaintiff's current proffer suggests he gave Defendants some notice of his intent to rely on additional documents in support of his contract claims, it does not change the result. This is, first, because Plaintiff elected not to seek leave to file a second amended complaint knowing Defendants would likely oppose such a motion. In addition, the notice Plaintiff did provide was both untimely and insufficient.
Plaintiff claims he first gave notice of the expanded bases for his contract claims through his counsel's April 17, 2015 email. This was roughly four months after the deadline to move to amend pleadings and less than two weeks after the court granted Plaintiff's first motion to amend. See ECF No. 13 (First Amended Scheduling Order setting a December 16, 2014 deadline to amend pleadings); ECF No. 47 (April 3, 2015 order granting motion to amend); ECF No. 49 (Amended Complaint filed April 6, 2015). The matter was, at that time, governed by a recently entered Second Amended Scheduling Order, which set a discovery deadline of June 8, 2015. ECF No. 55 (entered April 15, 2015). While discovery was extended for limited purposes by later orders, the general discovery deadline was never extended beyond June 8, 2015. ECF No. 90, 115, 127. Thus, this notice of an expanded basis for Plaintiff's contract-based claims was given less than two months before the close of discovery.
As Plaintiff acknowledges in his Memorandum in Support, he believed Defendants would oppose any motion to further amend the complaint in part based on untimeliness.
Plaintiff's June 1, 2015 supplemental discovery responses, while a more formal indication of intent (at least assuming a signed version was ultimately provided) do not fit the questions asked. The underlying requests sought documents on which Plaintiff relied for particular allegations (most critically, allegations relating to a contract between Palmetto Health and ACGME).
In sum, neither the April 17, 2015 email nor the June 1, 2015 supplemental discovery responses gave adequate or timely notice of Plaintiff's intent to rely on documents beyond those identified under the relevant causes of action of the Amended Complaint. Had Plaintiff intended to rely on these documents, the proper course would have been to move to amend and show good cause for the delay. At that point, the basis for each of the proposed amended claims could have been clarified and Defendants would have had an opportunity to address any grounds for opposing amendment. Plaintiff affirmatively elected not to pursue that course. He concedes he did so because he anticipated opposition, not because he believed Defendants agreed to the informal amendment. Having made this election, Plaintiff cannot now complain that Defendants or the court should have construed the Amended Complaint to include what Plaintiff never sought to add.
For the reasons stated above Plaintiff's third argument fails to the extent he challenges the ruling as to the first-party contract claim because he did not preserve that argument through his Rule 59(e) Motion. His argument as to both the first-party contract and third-party beneficiary claims fails because he has not shown the decision not to allow him to rely on documents not identified in the Amended Complaint was clearly erroneous or resulted in manifest injustice.
Plaintiff's present arguments do not persuade the court it erred in holding Plaintiff was, at most, an incidental beneficiary. The promises in the Affiliation Agreement and PLA directly benefitted USC-SOM and Palmetto Health. This is true of the promise to abide by ACGME standards, as failure to abide by these standards could or would have resulted in loss of accreditation, which would have resulted in an injury to the Entity Defendants. While residents surely benefit from the program being accredited, as well as from compliance with the standards required for accreditation, nothing suggests that "third-party" benefit is the intended (as opposed to incidental) purpose of the agreement between USC-SOM and Palmetto Health, given these entities' independent interest in maintaining accreditation.
As Plaintiff acknowledges, he has failed to direct the court to any authority addressing even a comparable scenario. He, instead, directs the court to one case with a more remote connection between the "contract" and claimant in which the court held the plaintiff (a patient injured by a resident) was, at most, an incidental beneficiary of ACGME standards. ECF No. 210 at 17 n.7. That this more-remote connection did not support a third-party beneficiary claim does not mean that a somewhat closer connection does support such a claim.
In sum, Plaintiff has, at best, pointed to the novelty of his theory. This is not enough to persuade the court its decision was clearly erroneous or resulted in manifest injustice.
In his subsequent Memorandum in Support, Plaintiff argues the control element of Butler is satisfied because USC-SOM "exercised complete control and supervision over Plaintiff's dayto-day participation in the orthopaedic surgery residency program." ECF No. 210 at 1. He notes all memoranda of record regarding Plaintiff's participation were on USC-SOM letterhead, the Department of Orthopaedic Surgery Residency Manual governed scheduling, work hours, and dress code, USC-SOM employees were responsible for hiring and evaluating residents, the Program's website spoke in terms of a program offered by USC-SOM, and other documents spoke in terms of joint responsibility for the program. Id. at 19-20. Plaintiff characterizes the court's allocation of educational and employment components to USC-SOM and Palmetto Health, respectively, as arbitrary and lacking in factual or legal authority. Id. at 20.
The court found Plaintiff's argument unpersuasive "both because it fails to address the Butler factors and because it suggests only joint responsibility for educational aspects of the Residency Program." ECF No. 188 at 43. The court noted the substantial and uncontroverted evidence Palmetto Health, rather than USC-SOM, assumed the responsibilities of employer. Id. at 43-45 (concluding Plaintiff "points to no language in these or any other documents to support a finding of joint employment as opposed to joint responsibility for educational aspects of the Residency Program.").
Plaintiff's present argument fails to address the multiple documents the court considered in concluding Plaintiff had not raised a genuine issue of material fact as to joint employment. These documents include (1) Plaintiff's Resident Agreement, which expressly stated he was "employed by Palmetto Health" and gave Palmetto Health authority to terminate him for cause, (2) the Affiliation Agreement, which provided "no person employed by Palmetto Health shall be considered an employee of the University" and placed responsibility for salaries and fringe benefits on Palmetto Health, and (3) the PLA, which also placed responsibility for paying salary, fringe benefits, and professional liability insurance on Palmetto Health and provided "[i]ncidents that may require academic or disciplinary action will be referred back to [Palmetto Health] via the program Director[.]"
To the extent Plaintiff now offers argument as to the Butler factors, his argument as to joint employment is an improper attempt to raise a new argument that could have been made prior to entry of judgment. Even if properly raised, it is ineffective because Plaintiff fails to address the clear and uncontroverted evidence that Palmetto Health, not USC-SOM, acted as employer in the hybrid student-employee relationship resulting from his participation in the Residency Program.
In his subsequent Memorandum in Support, Plaintiff first argues the court improperly relied on a constitutional standard in analyzing the due process aspects of his contract claim(s). ECF No. 210 at 21 ("Although the Court relies on case-law that affords lesser due process protections to academic or educational decisions, as opposed to regular employment decisions, Plaintiff submits that a contractual promise of due process is materially different than a constitutional guarantee of due process."). Most critically, Plaintiff argues "[t]he doctrine from Board of Curators of Univ. of Md. v. Horowitz, 435 U.S. 78, 85 (1985), that dismissals in the academic arena are subject to a lesser amount of due process[,] . . . simply does not govern Plaintiff's contractual due process claim here." Id. at 22. Plaintiff relies on four (previously uncited) employee handbook cases in support of this argument.
Plaintiff also argues there were a "number of deficiencies in the process" and related "errors" by the court. As to the two concerns raised in his Rule 59(e) Motion, Plaintiff argues the post-hearing, ex parte submissions were the "most egregious violation of due process[.]" He asserts he "did not `invite' the committee to solicit additional information from the program[,]" because his comments during the hearing only requested the Grievance Committee "conduct an independent review and contact nurses, staff, and patients." Id. at 25, 26 (likening the actions that were taken to allowing a prosecutor in a criminal trial to present ex parte information to a jury that had reached an impasse). As to the GMEC's role as "rubber stamp" Plaintiff argues (1) he "never had an opportunity to provide any input until after the GMEC had already accepted Dr. Koon's recommendation," (2) the grievance process offered only post-deprivation review, with only the fourth step providing any "ostensibly independent review," and (3) no one was able to identify any instance, prior to Plaintiff's termination, in which a resident's termination was overturned. Id. at 26, 27; see also id at 28 (arguing "Dr. Koon's animus towards Plaintiff, which was evidenced by the obviously inappropriate and intolerable comments . . ., tainted the decision-making process" and the "GMEC clearly acted as a `cat's paw' for [Dr. Koon's] underlying decision prematurely to drum him out of the program.").
Plaintiff also points to three additional alleged errors which were not referenced in his Rule 59(e) Motion. These include the following: (1) it was "grossly unfair for Defendant Palmetto Health to refuse to accept Plaintiff's request for a grievance hearing in January 2012," and the court erred in improperly defining the term "business day"; (2) the court "mistakenly determined that Dr. Irani had an adequate opportunity during the grievance hearing to challenge the truthfulness and accuracy of the statements made by Drs. Koon and Walsh, but he declined to do so; and (3) the court improperly gave Dr. Koon a same-actor inference. Id. at 23-28.
Even if all of Plaintiff's present arguments were properly raised, they would fail for reasons explained in the summary judgment order. Key aspects of that order are summarized below. Because they were raised in Plaintiff's Rule 59(e) Motion, the court also addresses Plaintiff's arguments as to the GMEC's role and post-hearing, ex parte submissions in further detail.
Thus, in addressing the due process aspects of Plaintiff's contract claim(s), the court initially looked to whether any alleged deficiency violated any provision of a document Plaintiff relied on for his contract claims. The court also gave Plaintiff the benefit of the doubt by assuming constitutional standards might be incorporated into the contract(s) and, therefore, addressed his due process allegations under the Horowitz standard in addition to addressing Plaintiff's specific arguments. Id. at 89-91 (finding no violation of the constitutional standard).
While Plaintiff does challenge the ruling on the due process aspects of his contract claim(s), he fails to point to any clear error in the primary basis for the court's ruling: that he failed to identify any specific contractual promise breached by the alleged deficiencies. See ECF No. 188 at 86-89. This ruling necessarily focused on the terms of the "contracts," not the Horowitz standard. Thus, Plaintiff's argument the court erred in applying Horowitz to his contract-based claims is misplaced. Neither does he now identify any contractual provision breached. He, instead, acknowledges that neither the Palmetto Health Residency Manual nor ACGME guidelines define due process. ECF No. 210 at 21.
As noted above, Plaintiff now cites four employee handbook cases. See supra n.19. He argues these cases provide the appropriate standard because the Palmetto Health Resident Manual does not contain either a general disclaimer or a disclaimer specific to the Grievance and Due Process policy. Id. at 22 (also relying on S.C. Code Ann. § 41-1-110). Plaintiff does not, however, point to any specific language or holding in these cases that supports finding the now-alleged procedural deficiencies constitute a breach of a contractual promise of due process. To the contrary, they state general principles the court applied including that, where a contract only allows termination for cause, the issue is "whether the employer had a reasonable good faith belief that sufficient cause existed for termination[,]" not "whether the employee actually committed misconduct[.]" Connor, 560 S.E.2d 611.
The Summary Judgment Order acknowledged Plaintiff's characterization of the GMEC's role as a rubber stamp. ECF No. 188 at 8 n.4 (discussing background); id. at 45 (discussing joint employment allegations under Title VII claim); id. at 86 (discussing contractual due process claim). The court did not address the concern in greater detail given Plaintiff's failure to advance any specific argument based on this alleged role. The court did, however, address a related concern that Dr. Stephens, who was the decision-maker at the third level of the grievance process, was biased against Plaintiff. As to this argument, the order noted "the contractual steps make it highly likely that Dr. Stephens, the DIO, would be aware of the circumstances and involved in the process being grieved and, consequently, could well have formed an opinion of the propriety of the remediation before her involvement in the grievance process." ECF No. 188 at 88. The same can be said of the GMEC's role as the contractual steps do not appear to envision, much less promise, that a resident will be given an opportunity to address the GMEC before it decides whether to place a resident on remediation or terminate the resident.
Plaintiff's present cat's paw argument seems to be offered as a basis for (1) imputing Dr. Koon's "overt animosity towards [Plaintiff]" to the GMEC and all levels of review in the grievance process, and (2) suggesting the process is deficient because there was no evidence the GMEC had ever failed to accept or a Grievance Committee had ever overturned a program director's recommendation to terminate a resident, at least prior to Plaintiff's termination. See ECF No. 210 at 26-28. While this turns Plaintiff's prior characterization of the GMEC as a rubber stamp into something of an argument, it fails to demonstrate that the characterization, even if correct, violates any contractual promise of due process. Most critically, it fails to point to any contractual promise a resident will have input or any independent review will be conducted before the GMEC makes an initial decision on remediation or termination. Likewise, Plaintiff points to no promise faculty opinion will not carry great weight throughout the process. Thus, Plaintiff's present "cat's paw" argument suggests only disagreement with the terms of the alleged contract rather than a breach of those terms.
The court addressed the concern again in analyzing Plaintiff's constitutional due process arguments, finding the process satisfied Horowitz. The court also found Dr. Koon, though a participant, was neither responsible for establishing nor administering the process that was provided. ECF No. 188 at 101.
Plaintiff's present arguments do not point to any clear error in these conclusions. In his Rule 59(e) Motion, Plaintiff argues the court improperly held he "invite[d] the Grievance Committee to solicit additional information from the program" and asserts he was not "invited to submit additional material." ECF No. 198 at 3. It is, however, clear Plaintiff suggested the Grievance Committee solicit additional information regarding his performance. While he may have suggested (or at least intended) that body seek the information from different sources than it elected to pursue, it remains that Plaintiff requested the Committee make further inquiry after the hearing closed and did not place any specific limitations on that request or indicate he was reserving a right to respond. To the contrary, Plaintiff stated he would "stand by" what the Grievance Committee was told, suggesting a waiver of any right to respond. Hearing Trans. at 85, 116. Plaintiff was also informed the Grievance Committee was seeking additional information from the faculty, but did not raise an objection. He, instead, chose to provide his own additional information.
In sum, what occurred after the hearing may not have been what Plaintiff intended. It was, however, a reasonable interpretation of what he requested during the hearing and consistent with his own actions, which raised no objection to and, in fact, joined in making a post-hearing submission. In any event, Plaintiff points to nothing in any contractual document (or constitutional standard applicable to review of educational decisions) that precludes the Grievance Committee from considering post-hearing, ex parte submissions.
In his Memorandum in Support, Plaintiff argues there is evidence USC-SOM became aware of the complaint and retaliated by: (1) refusing to allow Dr. Guy to take over responsibility for monitoring Dr. Irani's remediation (during a January 30, 2012 faculty meeting); and (2) recommending Plaintiff be suspended for alleged inappropriate care of a spine patient less than a month later (on February 29, 2012). ECF No. 210 at 30 (citing Plaintiff's declaration). Plaintiff argues causation is supported by a temporal link between his complaint to Dr. Stephens, which he argues must have occurred on or before January 3, 2012, and these actions by agents of USC-SOM (in late January and late February 2012). Plaintiff also challenges the court's conclusion Dr. Stephens' actions did not constitute adverse action. Id. at 30 (arguing Dr. Stephens' preexisting negative impression of him should not preclude his retaliation claim because that impression was not justified, "demonstrates that she did not perform her responsibilities under the grievance process," and "should not have been used as a basis for defending against a claim of retaliation").
Plaintiff's argument that USC-SOM or its agents retaliated against him rests on a flawed theory of causation. Plaintiff argues an inference of causation may arise from evidence (1) he made his complaint to Dr. Stephens on January 3, 2012, (2) the denial of his request Dr. Guy oversee his remediation and the complaint about the spine patient occurred within two months following his complaint to Dr. Stephens, and (3) Drs. Stephens and Koon discussed the comment at some point in time. As to the third point, Plaintiff argues there is "a material dispute about when this exchange occurred" because Dr. Stephens testified she did not know when she discussed the issue with Dr. Koon. Plaintiff acknowledges that Dr. Koon testified he believed Dr. Stephens may have received the complaint after Plaintiff was terminated, but argues this statement is speculative. Plaintiff does not address Dr. Koon's stated basis for this belief, that he learned of the complaint from Dr. Stephens after Plaintiff's termination. ECF No. 210 at 29 (citing Koon Reply Aff. ¶ 67).
Plaintiff is correct that Dr. Koon's statement of belief as to when Dr. Stephens may have learned of the complaint is speculative. He is also correct that a jury might not credit Dr. Koon's testimony as to when he learned of the complaint. This would not, however, establish that Dr. Koon learned of the complaint prior to the two allegedly retaliatory actions taken by USC-SOM or its agents. It would, instead, leave an absence of evidence as to when the complaint was communicated to Dr. Koon or any other agent of USC-SOM.
Plaintiff's arguments as to Dr. Stephens' actions and motivation also fail to support alteration or amendment of judgment. Plaintiff effectively concedes Dr. Stephens had a preexisting negative view of him. He argues this viewpoint "demonstrates that she did not perform her responsibilities under the grievance process to provide a fair and unbiased review" but does not explain why such a failure would support an inference of causation for purposes of a retaliation claim. Thus, this argument fails to persuade the court that its grant of summary judgment on this claim was the result of clear error or worked a manifest injustice.
In his Memorandum in Support, Plaintiff argues the record is insufficient "to support a finding as a matter of law that Dr. Irani's job performance during his residency was sufficient to justify his termination." ECF No. 210 at 31. He challenges comments Defendants' relied on as "cherry-picked" phrases from his first-year evaluations, denies he described "his entire PGY-1 year as a `rocky start'" during the Grievance Hearing, and argues the court unfairly accepted statements from Dr. Koon's reply affidavit that represented his personal beliefs, conclusions, and uncorroborated negative assertions of fact. He argues the court applied an improperly deferential standard of review under which "no resident could ever successfully challenge his or her termination through the legal system, regardless of how egregious the underlying facts were." Id. at 32. Plaintiff notes his own expert "opined [Plaintiff's] termination . . . was clearly premature." Id. He also notes the "California Medical Board, which actually took the time to review this matter in a contested hearing, determined that Dr. Irani did not have persistent patient care issues and did not deviate from the standard of care in connection with the same patient encounters at issue" in this case. Id.
In reaching these conclusions, the court did not "accept[] Defendants' premise that Plaintiff provided sub-standard care in the patient encounters underlying his various disciplinary actions and termination" as true. The court, instead, applied the deferential standard applicable to academic decisions. While Plaintiff suggests the standard itself is overly deferential, he points to no law supporting a less deferential standard of review. Plaintiff has, therefore, failed to persuade the court that entry of judgment on this claim was clearly erroneous or worked a manifest injustice.
For reasons explained above, many of Plaintiff's present arguments are procedurally foreclosed because they were either (1) not raised prior to judgment or (2) not reasonably predicted by his Rule 59(e) Motion. Even if not foreclosed, his arguments fail to establish grounds for alteration or amendment of the judgment because they do not establish the judgment was clearly erroneous or worked a manifest injustice. Plaintiff's motion to alter or amend judgment is, therefore, denied.
IT IS SO ORDERED.
