United States District Court, D. Alaska
ORDER ON MOTION FOR SUMMARY JUDGMENT (DKT. 241);
MOTION TO STRIKE (DKT. 215)
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
The
matter is before the Court on the Motion for Summary Judgment
(the “Motion”) by Defendant Imaging Associates,
LLC (“Imaging Associates”).[1] Imaging
Associates seeks summary judgment on the two remaining claims
at issue: Plaintiff Gregory Dunlap's claim under 31
U.S.C. § 3730(h) for retaliatory discharge in violation
of the False Claims Act, and his claim for breach of the
covenant of good faith and fair dealing implied in employment
contracts under Alaska law.[2]The Motion is fully briefed,
[3] and
the Court heard oral argument on August 7,
2019.[4] Also before the Court is Dunlap's
Motion to Strike, which has been fully briefed.[5] For the reasons
explained below, the Motion for Summary Judgment is
GRANTED and the Motion to Strike is
DENIED AS MOOT.
II.
BACKGROUND
In its
present form, this case involves an employment dispute
between Dunlap and his former employer, Imaging Associates,
for whom Dunlap worked between October 2012 and his
termination on August 13, 2014.[6] While the basic facts are not
disputed, the parties offer competing narratives regarding
Dunlap's tenure and the difficulties that emerged during
his time at Imaging Associates. The Court summarizes the
background facts and timeline first.
A.
Dunlap's Employment with Imaging Associates
Imaging
Associates is a radiology practice based in Alaska offering
diagnostic and medical imaging services.[7] Imaging
Associates is jointly owned and managed by Interventional and
Diagnostic Radiology Consultants, LLC (“IRDC”)
and the Providence Alaska Medical Center
(“Providence”).[8] Under an exclusive agreement,
Imaging Associates receives physician services from Alaska
Radiology Associates, Inc. (“ARA”), a
physician-owned professional corporation.[9]During the
relevant time period, Dr. Christopher Kottra, Dr. Chakri
Inampudi, Dr. Christopher Reed, Dr. Leonard Sisk, Dr. Heather
Tauschek, and Dr. Kelly Powers Williamson were all ARA
physicians working at Imaging Associates.[10] Drs. Kottra
and Inampudi-both of whom were originally named as defendants
in the Second Amended Complaint, but against whom no claims
remain-each served as Medical Director of Imaging Associates
during a portion of Dunlap's tenure.[11] In addition
to oversight from a board of directors, Imaging Associates is
managed by a CEO, a position occupied by J. Keith Radecic for
the bulk of Dunlap's tenure until Ward Hinger took over
as CEO in August 2014 following Radecic's
resignation.[12]
1.
Dunlap's Role at Imaging Associates
Imaging
Associates hired Dunlap as Director of Anchorage Facilities
in October 2012.[13]Approximately two months later, in
December 2012, Dunlap became Director of
Operations[14] for all four of Imaging Associates'
facilities.[15] In this role, Dunlap's duties
included “overseeing daily operations;”
“[a]ssisting [the] CEO in preparing [the] annual budget
and capital requirements;” “monitoring monthly
income statements;” “[d]eveloping, modifying, and
implementing patient care standards, policies, procedures,
protocol, and education programs in order to meet patient
care and staff needs;” “[r]eporting and
evaluating compliance concerns to ensure services were
delivered properly and cost-effectively;” and other
oversight duties.[16] Dunlap was also responsible for training
and supervising Imaging Associates' staff.[17] Critically,
for purposes of this suit, Dunlap's job duties
encompassed reporting and evaluating compliance concerns, and
reporting and investigating any fraud.[18]
During
the time he was Director of Operations, Dunlap reported to
both Imaging Associates' CEO and to the ARA physicians
working at Imaging Associates (the “Imaging Associates
Physicians”).[19] Dunlap asserts that, beginning in early
2013, he observed numerous practices at Imaging Associates
that raised compliance concerns, and contends that he
expressed these concerns to Radecic and to some of the
Imaging Associates Physicians.[20] Imaging Associates does not
dispute that Dunlap raised certain concerns; in fact, Imaging
Associates hired auditors to investigate certain compliance
concerns during the summer of 2013.[21]
It is
also undisputed that, from spring 2013 through his
termination, staff and physicians at Imaging Associates
became dissatisfied with Dunlap's
performance.[22] Radecic-who at the time was Dunlap's
supervisor and Imaging Associates' CEO-testified that he
first became aware of concerns regarding Dunlap's
performance during spring 2013, but was initially lenient
with Dunlap and “cut him slack” because of both
his own management style and because of stressful events in
Dunlap's personal life.[23] Dunlap does not dispute this;
in fact, Dunlap recalls Radecic telling him, sometime in
April 2013, that he was “going to have trouble”
if his performance did not improve.[24]
Despite
Radecic's counseling, Dunlap's performance issues did
not resolve. Ultimately, Drs. Inampudi, Kottra, and Reed all
requested that Radecic terminate Dunlap's employment;
this push became particularly strong by the spring of
2014.[25] By March 2014, even Radecic's
support had eroded, with Radecic conceding to Dr. Inampudi,
“I have been a supporter for a long time, but it's
really starting to wane, ” and stating that while
Dunlap “still has some good points, ” that
aspects of his performance had become “completely
unacceptable.”[26]
In
April 2014, Radecic informed Dr. Inampudi of his decision to
terminate Dunlap.[27]Radecic directed Debra Terry, the
Administrative Director and staff member responsible for
human resources issues, reached out to The Human Resources
Umbrella, LLC (“HR Umbrella”), a human resources
consulting firm, to begin a confidential search for a new
Director of Operations.[28] On May 1, 2014, Radecic signed an
engagement letter with HR Umbrella to formally begin that
process.[29]
However,
a number of events during April and May of 2014 complicated
this timeline and process. First, in April 2014, Imaging
Associates transitioned to a new picture archival and
communication system (“PACS”), the digital system
used for storing and sharing patient images.[30]When the new
PACS system went live on April 2, 2014, the transition-which
Dunlap played a role in organizing and managing-was riddled
with problems that lasted into May of 2014.[31]
2.
Dunlap's Providence Integrity Line Phone Call
In the
midst of the PACS transition, on April 22 and 24, 2014,
Dunlap called a compliance hotline, the Providence Health and
Services Hotline, maintained by Providence Hospital (the
“Providence Integrity Line”) and reported
concerns about certain practices at Imaging
Associates.[32] Shortly thereafter, in early May 2014,
Stephanie “Stevi” Morton, an Imaging
Associates' board member, followed up with Dunlap, and he
described his specific concerns.[33] On May 14, 2014, Radecic
met with Morton and learned that an anonymous caller had
raised concerns about Imaging Associates.[34]
As a
result of the call, Imaging Associates retained HR Umbrella
to investigate the allegations.[35] HR Umbrella interviewed
eighteen employees, including Dunlap, over a twelve day
period in June 2014.[36] On June 30, 2014, HR Umbrella issued a
final report summarizing its findings, which was then shared
with the Imaging Associates Physicians, management, and board
members.[37] The report concluded that “the CEO
and Medical Director were aware of the issues and addressed
each of those raised in the complaint at some time in the
past, ”[38] and HR Umbrella's recommendations
were limited to suggestions for Imaging Associates to improve
employee HR resources and training.[39]
Dunlap's
anonymity was maintained throughout this process. Moran did
not reveal Dunlap's identity as the Providence Integrity
Line caller until after Dunlap's
termination.[40] No evidence suggests that any of the
Imaging Associates Physicians were aware of Dunlap's
identity as the Providence Integrity Line Caller. Dr. Reed
stated that he did not know who the Providence Integrity
complainant was; and Dunlap stated that he did not know if
Dr. Reed identified him as the caller.[41] Dr. Inampudi
similarly indicated that he did not know the identity of the
caller.[42]However, upon receipt of the HR Umbrella
report, Radecic testified that he deduced the identity of the
caller, and that because of this, he stopped the search for
Dunlap's replacement.[43]
Dunlap
filed this suit-initially under seal as a qui tam
action-on July 24, 2014.[44] Dunlap admits that no one at Imaging
Associates knew he had filed this suit at the time of his
termination.[45]
3.
Dunlap's Termination
In
early May of 2014, Radecic announced to Imaging Associates
that he would be stepping down as CEO.[46] The
transition to a new CEO occurred in early August 2014, when
Hinger took over from Radecic as CEO of Imaging
Associates.[47] During his first week on the job, Hinger
requested that Terry schedule meetings with staff,
physicians, and management at Imaging Associates to bring him
up to speed on the organization.[48] Dunlap was scheduled to
be on vacation during Hinger's first week but nonetheless
came to the office on August 1, 2014 for a meeting with
Hinger.[49] Dunlap asserts that their meeting lasted
nearly eight hours, during which he relayed his compliance
concerns to Hinger and informed Hinger that he was the
Providence Integrity Line caller.[50] Hinger does not recall
Dunlap disclosing his identity as the Providence Integrity
Line caller during the August 1, 2014 meeting; however, for
purposes of summary judgment the Court accepts Dunlap's
assertion that Hinger knew he was the Providence Integrity
Line caller as of August 1, 2014.[51]
Hinger
testified that when he took over, Radecic, Dr. Inampudi, and
the “other physician leaders, ” were “very
concerned about [Dunlap's]
performance.”[52] Hinger requested “some time to
evaluate and do my own quick review, ”[53] but
ultimately concluded that “it was not possible to
retain Gregg Dunlap due to a variety of performance
issues” including “his relationship with the
staff, ” lack of trust, and lack of
communication.[54] Emails exchanged between Hinger,
Radecic, and Terry indicate that Hinger resumed working with
HR Umbrella to replace Dunlap on or about August 6,
2014.[55] Hinger stated that it was his decision
to terminate Dunlap.[56] Hinger, acting on behalf of Imaging
Associates, terminated Dunlap on August 13,
2014.[57] Although Imaging Associates offered
Dunlap a severance package, Dunlap declined because he had
already initiated this suit under seal.[58]
B.
Dunlap's Performance Issues and Dunlap's Compliance
Concerns
Dunlap
concedes that there were deficiencies with his performance as
Director of Operations. The crux of Dunlap's claims,
however, is that it was his decision to voice compliance
concerns-and not the performance issues-that led to his
termination. But Imaging Associates offers an account of the
problems with Dunlap's performance, and the simultaneous
breakdown of his relationship with the physicians, staff, and
management at Imaging Associates, which it argues was the
reason for Dunlap's termination.
1.
Dunlap's Performance Issues
Starting
in Spring 2013, shortly after Dunlap became Director of
Operations, the physicians and staff at Imaging Associates
began to express dissatisfaction with Dunlap's job
performance. Radecic testified that he began to receive
complaints from physicians and staff regarding Dunlap's
performance during 2013.[59] Eventually, issues emerged with
Dunlap's communication, his management style and
relationships with his staff, and his oversight and timely
completion of necessary tasks and projects.
Staff
and physicians reported communication issues with Dunlap
throughout his tenure. Beginning in spring 2013, staff
complained to the physicians and to Radecic that Dunlap was
unavailable, unresponsive to their concerns, and did not
provide timely assistance.[60] For example, emails dated
March 2013 between Dr. Inampudi and another doctor, Dr. Kelly
Powers, states that “emails to Gregg [Dunlap] often go
unanswered for some time[, ]” causing “small
avoidable things to keep building up, creating frustration
and in some cases, chaos[.]”[61] Similarly, emails from
Pamela Buchanan, a Sonographer, to Dunlap and Terry sent in
March and April 2013 indicate that her performance
reviews-which Dunlap performed-were overdue.[62] Dr. Inampudi,
the Medical Director for Imaging Associates during the
majority of Dunlap's tenure, stated that he
“couldn't even get a hold of [Dunlap] sometimes
when he called him” and that often, he could
“barely even find” Dunlap.[63]
These
problems continued throughout Dunlap's tenure. Dr. Reed
testified that, over time, Dunlap “became less and less
responsive to his job obligations;” and that he
personally “became more and more frustrated by
[Dunlap's] lack of follow-through[.]”[64] An email from
Imaging Associates employee Nina Caterinichio to Dr. Reed on
July 10, 2014, describes her efforts to resolve ongoing
problems, and states “I know better now than to think
[Dunlap] would be helpful in these
situations.”[65] And, staff member Yonild Lian, a PET/CT
Technologist, stated in his declaration that Dunlap
“was generally unresponsive, ” and that he
“had to elevate [his] concerns to Dr. Reed because of
Mr. Dunlap's failure to perform his
job.”[66] Hinger testified that, when he took over
as CEO in August 2014, “technologists were complaining
that he [Dunlap] was never around [and] never available to
talk to.”[67]
Dunlap
also had poor working relationships with many staff members
at Imaging Associates. In particular, his relationship with
the staff he supervised was often contentious. Radecic
testified that Dunlap “had conflicts with some of the
staff at some of our locations, ”[68] and stated
that on multiple occasions, he counseled Dunlap on “how
[management] should be treating staff.”[69] Dr. Reed also
received “a lot of complaints from our employees . . .
about the way [Dunlap] treated them” and that he had
“a lot of employees come to me latter half of 2013,
certainly 2014, some in tears about the way he had talked to
them or treated them.”[70] Terry, who was responsible for
human resources issues, identified several staff members
during her deposition who came to her because they felt
mistreated by Dunlap.[71] Terry further stated that two
individuals-Cheryl Nino and Bridget Stenger-resigned because
of Dunlap's treatment of them in the
workplace.[72]
Perhaps
most notably, Dunlap clashed with Janet Stookey, the
registered nurse who headed Imaging Associates' vein
program.[73] Dunlap testified that his
“disagreements [with Stookey] all hinged primarily on
the vein program, ” but acknowledged that he made
derogatory remarks about Stookey to other individuals,
including Dr. Reed.[74] In one email from Dunlap to Dr. Reed,
Dunlap referred to Stookey as “an idiot” and
blamed her for the problems he saw with the vein
program.[75]By fall of 2013, Drs. Inampudi, Kottra,
and Sisk decided it was necessary to remove Dunlap from
supervising Stookey completely.[76]
By
2014, Dunlap's relationships with many staff members had
deteriorated. In fact, Dr. Reed recounted that when Radecic
announced his resignation as CEO in May 2014, numerous staff
members approached Dr. Reed and expressed concerns that
Dunlap would be left in charge upon Radecic's
departure.[77] Dr. Reed stated that “multiple
people suggested that they would not stay in the organization
much longer” if Dunlap were left in charge, and
“would begin seeking other
employment.”[78] Some of the Imaging Associates
Physicians were sufficiently concerned by these complaints
that they took steps to avoid this result:[79] on May 20,
2014, Radecic announced via email that Terry would take over
“personnel management and general operations”
duties and would act as “everyone's primary point
of contact for personnel or day to day center issues”
during the CEO transition.[80]
While
Dunlap may dispute whether these complaints were fairly
leveled against him, the fact of their existence-and that
physicians and management at Imaging Associates were aware of
them-is not disputed.[81] In fact, the HR Umbrella report
indicates that three employees told investigators that they
“felt their jobs had been threatened by the Operations
Director” and that they “did not like his
‘bullying approach' to resolving
conflict.”[82]
The
record also contains several specific examples of lapses in
Dunlap's performance that caused problems for Imaging
Associates. For example, on August 14, 2013, a patient at one
of Imaging Associates' facilities had an adverse reaction
to a procedure, [83] and the physicians and staff on location
were unable to locate a “crash cart” that should
have been available with the supplies necessary to stabilize
the patient until emergency services could be
contacted.[84] Shortly thereafter, Dr. Inampudi emailed
Dr. Sisk and Radecic, stating “these are the kind of
things Gregg [Dunlap] should be on top of” and
requesting that Radecic seek “a formal response”
from Dunlap.[85] It is undisputed that ensuring the
availability of crash carts was one of Dunlap's
responsibilities, and that the incident was viewed very
negatively by the physicians at Imaging Associates and
Radecic.[86]
Another
area of concern was Dunlap's management of Imaging
Associates' American College of Radiology
(“ACR”) accreditation. As described by Radecic,
the ACR accreditation process ensured that Imaging Associates
was “officially licensed in the state and nationally
recognized” to perform specific
procedures.[87] To maintain accreditation, Imaging
Associates needed to submit required documentation,
signatures, and images in a timely fashion for each
modality.[88] Dunlap's role included oversight of
this entire process, and it was Dunlap's job to
coordinate and manage the accreditation
process.[89]
This
process proved problematic throughout Dunlap's
tenure.[90] November 2013 emails exchanged between
Dr. Reed and Radecic indicate ongoing issues with CT
accreditation.[91] And, a December 2013 email forwarded
from Rick Willis, the Lead CT Technologist at Imaging
Associates, [92] indicates that an application to renew
the CT accreditation for the facility was overdue, and
another email in February 2014 indicates that images were
missing from another accreditation package.[93] Radecic
testified that he counseled Dunlap regarding the importance
of improving management of the ACR accreditation process;
however, issues remained.[94] In April 2014, emails between
Dr. Inampudi and Dr. Sisk, which were shared with Radecic and
Dr. Reed, expressed frustrations with Dunlap's
performance, with Dr. Sisk complaining Dunlap “is not
maintaining our ACR status for various modalities” and
worrying that Imaging Associates would “need to pay for
an extension” to get the work done on
time.[95] Radecic, in response to that email,
wrote “this is basic stuff that is [Dunlap's]
responsibility to get done and keep us
accredited.”[96]Hinger stated that when he took over as
CEO, the lead technologists were “concerned” that
Imaging Associates would be unable to meet the deadlines to
maintain ACR credentials on certain equipment “because
of Mr. Dunlap's leniency in communication and absence
from the office.”[97]
Dunlap
does not dispute that these difficulties occurred and
acknowledged that he “did not bring together the
tracking soon enough to be a little bit more out in front of
it.”[98] However, he argues that he was not
responsible for the problems that arose.[99] Dunlap
further contends that the process of ACR accreditation was
eventually successful, even if the implementation was poor,
maintaining that he “did not miss it, ” a
reference to his contention that the process was ultimately
acceptable because no accreditations actually lapsed during
this tenure.[100]
The
final area of concern was Dunlap's role in the poorly
executed implementation of Imaging Associates' new PACS
system in spring 2014. Dunlap was not involved in selecting
or purchasing the new system, [101] but was tasked with
rolling out the new system together with Radecic and an IT
professional named Jason Roach, who Dunlap
supervised.[102] Dunlap was, at minimum, responsible
for training and supporting staff during the transition,
which proved to be riddled with problems.[103]
Although
numerous factors contributed to the disastrous rollout,
Radecic and the Imaging Associates Physicians felt that
Dunlap did not successfully perform his assigned duties to
facilitate the PACS implementation. Radecic stated that
Dunlap generally “fell short in managing” the
PACS rollout.[104] Dr. Reed expressed particular
frustration with Dunlap's lack of responsiveness to the
problems the front desk was facing when fielding calls from
physicians who were unable to access necessary
records.[105] In describing the incident to Hinger
later on, Dr. Reed stated that “there was no training
at all on our front end as to how to handle angry referring
provider calls, ” and that Dunlap “never did come
through and respond either by phone or email, ” nor did
Dunlap “engage[] in staff training over the handling of
these calls, ” a task that was specifically assigned to
Dunlap.[106]
As with
other areas of concern, Dunlap does not dispute that issues
arose with the PACS implementation; however, he argues that
“there were so many external factors” that
responsibility for the botched rollout cannot be placed
“solely” on him.[107] Dunlap recalls these
complaints about his performance with respect to the PACS
project, particularly from Radecic, Drs. Inampudi and Reed,
[108] but contends that those concerns were
“misplaced” because the “PACS project
should never have gone live when it did.”[109]
In sum,
Imaging Associates points to numerous deficiencies with
Dunlap's performance, and contends that Hinger fired
Dunlap as a result of these problems. Dunlap does not dispute
that aspects of his performance were lacking and recognized
that “there were definitely things that I could have
improved on at any given point, ” and “things
that got missed and overlooked.”[110]
2.
Dunlap's Compliance Concerns
Despite
these issues, Dunlap, however, argues that the cause of his
termination was the compliance concerns that he raised while
at Imaging Associates. Dunlap now argues that this conduct
was protected activity under the False Claims Act and under
Alaska law, and ultimately that he is entitled to relief for
retaliatory termination.
The
Court notes, at the outset, that Dunlap's specific
compliance concerns are imprecisely referenced in his
briefing. At oral argument, Dunlap represented that the scope
of his compliance concerns were those issues enumerated in a
Spring 2013 audit performed by Aegis Compliance and Ethics
Center, LLP (“Aegis”), the details of which are
described below.[111] Dunlap's briefing, however, also
references “billing concerns” that were
“outside of [his] job duties, ” which may
reference separate concerns since at deposition, Dunlap
testified that Aegis “didn't look into the billing
practices.”[112] However, Dunlap did not provide any
additional detail on the specifics of these billing concerns,
nor did he reference any other filing providing such detail.
And, the only compliance concerns the Court is aware of
involving “billing issues” are certain billing
issues that arose as part of, or ancillary to, the concerns
enumerated below.
Shortly
after becoming Director of Operations, Dunlap asserts, he
began raising compliance concerns. First, beginning in
February 2013, Dunlap began expressing concerns about a laser
at Imaging Associates' location on Trunk Road in Wasilla,
Alaska (the “Trunk Road Laser”).[113] Dunlap
believed that Imaging Associates was using the Trunk Road
Laser without a valid vendor agreement in violation of
Medicare and Medicaid regulations.[114] Dunlap “worked
to resolve [this] issue during the spring and summer of 2013,
” bringing his concerns to the attention of Radecic,
Dr. Kottra, and Dr. Inampudi.[115] Dunlap testified, however,
that he “eventually dropp[ed] the issue” at the
request of Dr. Inampudi and did not raise the issue again
with any of the physicians after 2013.[116] By 2014,
Dunlap stated that he would “[p]eriodically” ask
Radecic about the Trunk Road Laser “in passing”
but did not bring up this issue with anyone else at Imaging
Associates.[117]
Dunlap
also asserts that, during the spring and summer of 2013, he
discovered other compliance issues relating to Imaging
Associates' vein program. First, Dunlap discovered
pre-filled syringes that were not properly labeled and
stored.[118] Second, Terry informed Dunlap in
spring 2013 that there were pre-signed prescription forms in
the desk of Stookey, a registered nurse and director of the
vein program.[119] Finally, Dunlap asserts that he
harbored concerns about the vein program workflow, asserting
that Stookey “worked outside her practice area, ”
in violation of Medicaid and Medicare rules, [120] and that
he had concerns about the vein program billing practices in
relation to that workflow.[121]
Many of
these concerns were timely addressed. Dunlap acknowledges
that the issues involving the syringes and prescription pads
were both resolved in 2013, [122] and Dunlap testified that
he did not raise either issue again internally until the
Providence Integrity Line phone call.[123]And, as
previously mentioned, Imaging Associates retained outside
auditors to explore Dunlap's concerns regarding the vein
program.[124] In summer 2013, Radecic hired Aegis to
perform an audit of the vein program (the “Aegis
Audit”).[125] Imaging Associates implemented certain
changes in response to the Aegis Audit, but Dunlap contends
some issues remained unaddressed.[126]
Dunlap
testified that, to the extent he still harbored concerns, by
2014 he only raised them informally with Radecic or Dr. Reed
and not with anyone else at Imaging Associates until his call
to the Providence Integrity Line in April 2014, when he
communicated all his concerns to an Imaging Associates'
board member, Morton.[127] According to the HR Umbrella
report, the caller- Dunlap-made the following compliance
allegations: (1) unlabeled syringes stored by a vein
therapist; (2) pre-filled prescription pads; (3) a workflow
at the vein center in which a registered nurse was practicing
outside her license; (4) references to an unlicensed or
unleased laser at the Trunk Road location; (5) concerns about
moving to a new “technical platform for the
organization” too quickly without adequate testing; and
(6) workplace hostility.[128] Dunlap asserts that when he
met with Hinger on August 1, 2014, he informed Hinger about
these concerns as well.[129]
C.
Procedural History
Dunlap
initiated this case on July 24, 2014 while still Director of
Operations for Imaging Associates, asserting claims under the
False Claims Act, 31 U.S.C. § 3279 et seq.
(“FCA”).[130] After the United States declined to
intervene, [131] and after his termination, Dunlap
filed an Amended Complaint, adding claims for employment
retaliation under the FCA, wrongful termination in violation
of public policy, and breach of the covenant of good faith
and fair dealing implied in employment contracts under Alaska
law.[132] Following briefing and oral argument
on a joint motion to dismiss, [133] the Court dismissed
Dunlap's FCA claims, the claim for wrongful termination
in violation of public policy, and several of the named
defendants.[134]
On
April 26, 2016, Dunlap filed a Second Amended Complaint,
reasserting those claims that were dismissed without
prejudice and the two employment retaliation claims that were
not previously dismissed against a smaller group of
defendants.[135] Defendants again moved to dismiss the
FCA claims, Counts I-IV, which the Court
granted.[136]
What
remains before the Court are two claims against Imaging
Associates from the Second Amended Complaint: Count V for
Retaliatory Discharge in Violation of the FCA; and Count VI
for Breach of the Covenant of Good Faith and Fair Dealing
implied in Alaska employment contracts.[137] Dunlap
contends that he engaged in conduct that is protected under
the FCA and Alaska law when: (1) he raised certain internal
compliance concerns to Radecic and the physicians at Imaging
Associates; (2) he placed a phone call to the Providence
Integrity Line in April 2014 reporting these concerns; and
(3) he disclosed his identity as the Providence Integrity
Line caller, and his concerns, to Hinger on August 1,
2014.[138] Dunlap argues that Imaging Associates
then fired him in retaliation for this protected activity.
Imaging
Associates moves for summary judgment on both claims,
contending that Dunlap has failed to state a prima
facie case for retaliation because he has not
demonstrated all of the necessary elements, and further
arguing that Dunlap has not rebutted the legitimate
non-retaliatory reason for termination that Imaging
Associates provided.[139] Imaging Associates also contends
that Dunlap failed to plead certain facts that he now asserts
as part of the basis for his claims, and should be barred
from doing so.[140] Dunlap, in response, maintains that
there are disputed material facts which preclude summary
judgment.[141] Dunlap also argues that the Second
Amended Complaint and factual disclosures during discovery
were sufficient to place Imaging Associates on notice of the
conduct at issue.[142] Following briefing, the Court heard
oral argument on August 7, 2019 then took the matter under
advisement.[143]
III.
LEGAL STANDARD
Summary
judgment is appropriate where, viewing the evidence and
drawing all reasonable inferences in the light most favorable
to the nonmoving party, [144] “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of
law.”[145] In ruling on a summary judgment
motion, a court's analysis is focused on “whether
there is a genuine issue for trial.”[146]
Material
facts are those which might affect the outcome of the
case.[147] A genuine issue of material fact
exists “if the evidence is such that a reasonable jury
could return a verdict for the non-moving
party.”[148] “There is no genuine issue of
fact if, on the record taken as a whole, a rational trier of
fact could not find in favor of the party opposing the
motion.”[149] A movant's burden may also be met
by “‘showing'-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case.”[150]
Once a
movant has met its initial burden, Rule 56(e) requires the
nonmoving party to go beyond the pleadings and identify facts
which show a genuine issue for trial.[151]
“The mere existence of a ‘scintilla' of
evidence is not enough to create a ‘genuine issue of
material fact' in order to preclude summary
judgment.”[152] While the Court must draw all
reasonable inferences in favor of the nonmoving party, the
nonmoving party must make a “sufficient showing on an
essential element of her case with respect to which she has
the burden of proof” to survive summary
judgment.[153] And, “[w]here ... the case turns
on a mixed question of fact and law and the only disputes
relate to the legal significance of undisputed facts, the
controversy is a question of law suitable for disposition on
summary judgment.”[154]
IV.
ANALYSIS
The
Court concludes that Imaging Associates is entitled to
summary judgment on both claims at issue. First, Dunlap did
not plead any facts relating to the August 1, 2014 meeting
between Dunlap and Hinger, and thus cannot assert this fact
as part of the protected activity that forms the basis for
his claims. Second, Dunlap has not stated a prima
facie case for employment retaliation under the FCA
because he has not demonstrated that Imaging Associates knew
that his internal complaints were protected activity, and he
did not establish that his protected activity was the
‘but for' cause of his termination. And, Imaging
Associates is further entitled to summary judgment on both
the FCA claim and Dunlap's claim for breach of the
implied covenant of good faith and fair dealing because
Dunlap has not rebutted the legitimate non-retaliatory reason
Imaging Associates provided for Dunlap's termination.
A.
Pleading of Alleged Protected Activity Under Fed.R.Civ.P.
8(a)
The
Court first turns to Imaging Associates' contention
regarding the sufficiency of Dunlap's
pleadings.[155] On this issue, Imaging Associates
argues that: (1) the Second Amended Complaint does not
clearly allege that Dunlap's internal complaints to
Radecic, Dr. Inampudi, Dr. Reed, and Dr. Kottra were part of
the protected activity leading to his
termination;[156] and (2) that the Second Amended
Complaint does not reference the August 1, 2014 meeting
between Dunlap and Hinger, thus barring Dunlap from now
asserting this event as part of the factual basis for his
claims.[157] Dunlap, in response, contends that
broad references to these activities in the Second Amended
Complaint, and their disclosure during discovery, are
sufficient to provide Imaging Associates notice of the
factual basis for Dunlap's claims.[158]
“The
Supreme Court has interpreted the ‘short and plain
statement' requirement [of Fed.R.Civ.P. 8(a)(2)] to mean
that the complaint must provide ‘the defendant [with]
fair notice of what the claim is and the grounds upon which
it rests.'”[159] The Court agrees that Second
Amended Complaint is ambiguous as to whether Dunlap's
internal complaints were asserted as a factual basis for his
employment retaliation claims, Counts V and VI, or just for
the FCA claims, Counts I-IV.[160] However, the Second Amended
Complaint describes Dunlap informing Radecic and Drs.
Inampudi, Kottra, and Reed about various compliance
concerns.[161] The Court thus finds that the pleading
is sufficient-albeit minimally-to place Imaging Associates on
notice as to the factual basis for Dunlap's allegations.
Regarding
the August 1, 2014 meeting between Hinger and Dunlap,
however, the Court reaches the opposite result. During oral
argument, Dunlap conceded that the Second Amended Complaint
makes no reference to the August 1, 2014 meeting between
Hinger and Dunlap.[162]Thus, to the extent that Dunlap now
advances claims based on this meeting, the Second Amended
Complaint “gave the defendants no notice of the
specific, factual allegations” on which those claims
are based.[163] The Court therefore will not consider
the August 1, 2014 meeting as part of the protected activity
that Dunlap alleges led to his termination, as he did not
plead it as such.
B.
Prima Facie Case for Retaliation Under the False Claims
Act
The
Court now turns to the merits of Dunlap's claim for
employment retaliation under the FCA. “The False Claims
Act protects ‘whistle blowers' from retaliation by
their employers.”[164] Specifically, 31 U.S.C.
§ 3730(h) entitles an employee, contractor, or agent to
relief if that individual is:
discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and
conditions of employment because of lawful acts done by the
employee . . . in furtherance of an action under this section
or other efforts to stop 1 or more violations of this
subchapter.[165]
To
establish such a cause of action, “[a]n employee must
prove three elements in a § 3730(h) retaliation claim:
(1) that the employee engaged in activity protected under the
statute; (2) that the employer knew that the employee engaged
in protected activity; and (3) that the employer
discriminated against the employee because she engaged in
protected activity.”[166]
“The
Ninth Circuit has not expressly determined whether the burden
shifting analysis utilized by the courts in analyzing claims
under Title VII of the Civil Rights Act also applies to
whistleblowing claims under the FCA. However, every court to
address this issue directly has concluded an affirmative
defense is available to the employer.”[167] Thus, the
Court will apply the Title VII burden shifting methodology to
evaluate Dunlap's claims here.
Under
this framework, Dunlap must first demonstrate the three
elements above-thus establishing a prima facie case
for retaliation. The burden then shifts to Imaging Associates
to articulate a “legitimate non-retaliatory explanation
for the adverse employment action.”[168] If
Imaging Associates is able to provide such a reason and
“successfully rebuts the inference of retaliation,
” then “the burden of production shifts back to
[the plaintiff] to show that [the] proffered explanation is
merely a pretext for impermissible
retaliation.”[169]
1.
Whether Dunlap Engaged in Protected Activity under the
False Claims Act
The
first element Dunlap must establish to state a prima
face case under § 3730(h) is that he engaged in
protected activity under the FCA.[170] “[A]n employee
engages in protected activity where (1) the employee in good
faith believes, and (2) a reasonable employee in the same or
similar circumstances might believe, that the employer is
possibly committing fraud against the
government.”[171]
This
element is not disputed. Dunlap asserts that his protected
activities included his internal compliance
complaints[172] and his call to the Providence
Integrity Line in April 2014. Imaging Associates concedes
that Dunlap's call to the Providence Integrity Line was
protected activity[173] and does not contest the remaining
conduct at issue.[174] Thus, the Court considers both these
factual grounds in evaluating the remaining elements of
Dunlap's prima facie case.
2.
Whether Imaging Associates had Knowledge of Dunlap's
Protected Activity
Next,
Dunlap must demonstrate that Imaging Associates knew about
his protected activity. Dunlap asserts that Radecic, Hinger,
and the physicians at Imaging Associates knew about his
internal complaints, and that from this they also figured out
that he was the Providence Integrity Line
caller.[175] The record is only sufficient,
however, to establish that Radecic and Hinger knew about
Dunlap's call to Providence Integrity Line.[176] Dunlap
has not met his burden to establish this element of his
prima facie case for any of the other conduct
alleged. The evidence is insufficient to conclude that his
internal complaints placed Imaging Associates on notice that
he was investigating fraud; and, similarly, no evidence
suggests that anyone else at Imaging Associates knew that
Dunlap was the Providence Integrity Line caller until after
Dunlap's termination.
“Unless
an employer is aware that its employee is investigating
fraud, the employer cannot ‘possess the retaliatory
intent necessary to establish a violation of §
3730(h).'”[177] Ordinarily, this requires only that
the employer have general knowledge that the employee is
investigating a potential fraud.[178] However, where an
employee's role includes reporting compliance violations,
this standard is heightened.[179] “[E]mployees whose
complaints fall within the scope of their job duties must
provide their employers with clear notice of their intent to
pursue an FCA action in order to satisfy the second element
of a retaliation action under the
statute[.]”[180]
a.
Knowledge of Dunlap's Internal Complaints as Protected
Activity
The
Court first examines whether Dunlap's internal complaints
put Imaging Associates on notice that he was investigating
fraud. Under Ninth Circuit law, a plaintiff whose job
responsibilities include compliance must meet a higher
standard to place her employer on notice of protected
activity. “Where a plaintiff merely advised her
superiors of noncompliance and warned of consequences for
noncompliance, and her monitoring and reporting activities
were required to fulfill her job duties, defendants did not
have notice the plaintiff was furthering or intended to
further an FCA action.”[181] In these cases,
“‘the employee must make it clear to the employer
that the employee's actions go beyond the assigned
task' in order to overcome the presumption that he is
merely acting in accordance with his employment
obligations.”[182]
Dunlap
argues that because Dunlap did not serve as Imaging
Associates' compliance officer, this standard should not
apply and his concerns were sufficient as raised to place
Imaging Associates on notice that he was engaged in protected
activity.[183] Dunlap also asserts that this standard
should not apply because Dunlap's internal complaints
“included improper billing practices, ” and
billing was not within Dunlap's role as Director of
Operations.[184]
This
argument is unpersuasive. The heightened notice standard does
not require that the relator be formally responsible for all
compliance tasks, nor does it require the employee be
responsible for only compliance tasks.[185] Rather,
the standard applies if “the monitoring and reporting
activities outlined by relators are by and large the types of
activities [the] relator was required to undertake as part of
[their] job.”[186] Although Imaging Associates
employed a separate compliance officer-Anita Moran-it is not
disputed that Dunlap's role included “ensuring that
[Imaging Associates was] compliant with governmental
regulations [and] operations and
processes[.]”[187] Dunlap's responsibilities as
Director of Operations included “reporting and
evaluating compliance concerns, ” and
“investigating and reporting any
fraud.”[188] Indeed, Dunlap himself specifically
responded in the affirmative at deposition when asked whether
his job duties “included reporting and evaluating
compliance concerns;” and stated that it was his job to
“investigate and report any fraud.”[189] The Court
thus concludes that monitoring for compliance issues was
within the scope of Dunlap's job, and that “a more
comprehensive notice” is thus required.[190]
Applying
this standard, Dunlap's internal complaints “did
not place [Imaging Associates] on notice that [Dunlap] was
not merely performing his job duties as a member of [Imaging
Associates] management.”[191] Dunlap provides no
evidence indicating he ever communicated an intention to
elevate his concerns, nor does he provide evidence that
anyone at Imaging Associates would have been aware that he
intended to pursue a compliance action, such as an FCA claim.
To the contrary, to the extent that Dunlap had ongoing
concerns regarding some of the issues he initially raised in
early 2013, [192] Dunlap testified that during 2014, he
only raised these concerns “in passing” with
Radecic, and that he “express[ed] frustration” to
Dr. Reed.[193] In fact, Radecic testified that he
viewed Dunlap's internal complaints as part of
Dunlap's role, and that his impression was that “as
management, we were together trying to scope the situation,
what was going on, come up with the alternatives that we
could take to rectify those situations and to implement those
changes.”[194] “In such circumstances, a
defendant is put on notice only where [the plaintiff] has
suggested that she intends to use the alleged noncompliance
as the basis for an FCA claim, or else intends to report the
misconduct to government officials.”[195]
Thus,
to the extent that Dunlap's employment retaliation claims
are predicated on his internal complaints, Dunlap has not
stated a prima facie case because Imaging Associates
lacked knowledge that he was engaged in protected activity
when he voiced these concerns.
b.
Knowledge of Dunlap's Identity as the Providence
Integrity Line Caller
However,
Dunlap has established that both Hinger and Radecic knew he
was the Providence Integrity Line caller. It is undisputed by
the parties-based on Radecic's testimony- that Radecic
deduced Plaintiff's identity as the caller after reading
the HR Umbrella Report.[196]And, while the parties
dispute whether Hinger knew Dunlap's identity as the
caller, Imaging Associates concedes that, for purposes of
summary judgment, the Court must rely on Dunlap's
testimony that he informed Hinger of this fact during their
August 1, 2014 meeting.[197]
However,
to the extent that Dunlap argues that others at Imaging
Associates knew he was the Providence Integrity Line
complainant, Dunlap has not so demonstrated. Dunlap argues
that the Court should also conclude that Drs. Inampudi, Reed,
and Kottra knew he was the complainant behind the Providence
Integrity call.[198] No direct evidence supports this
contention;[199] but Dunlap argues that these
physicians must have figured out Dunlap's identity
because of similarities between the complaints raised in the
Providence Integrity Line phone call and the issues Dunlap
had previously raised in connection with the Aegis
Audit.[200]
This
argument falls short, as it does not rely on a reasonable
inference but an assumption that is contradicted by the sworn
testimony on the record. “To survive summary judgment,
a plaintiff must set forth non-speculative evidence of
specific facts, not sweeping conclusory
allegations.”[201] Where the evidence
“establishes only that this set of events could
conceivably have occurred; it does not give rise to a
reasonable inference that it did in fact
occur.”[202]
Dunlap
argues that this inference is warranted because “no
other employee besides Mr. Dunlap made the complaints
identified in the HR Umbrella report, ”[203] but the
record does not support this assertion. First, the issues
raised by the Providence Integrity Line complainant and those
detailed in the Aegis Audit are not identical; indeed, the
Aegis Audit did not reference any issues with pre-filled
prescription pads, pre-filled syringes, the Trunk Road Laser,
or anything relating to a hostile work
environment.[204] Moreover, by April 2014 when the
Providence Integrity Line call was placed, many individuals
at Imaging Associates were aware of these issues such that
they could have asserted them to an outside
party.[205] And, by mid-2014, Dunlap stated that
he was only expressing these concerns to Radecic; thus, the
Court cannot presume that Drs. Inampudi, Reed, and Kottra
were as familiar with Dunlap's concerns as Radecic was,
and thus cannot presume that the three physicians would have
arrived at the same conclusion that Radecic did regarding the
caller's identity.[206] Thus, to infer that Dunlap's
identity as the Providence Integrity Line caller was known to
any of the physicians at Imaging Associates would
“require undue speculation.”[207]
In sum,
Dunlap has established the second element of his prima
facie case, but on a narrower factual ground that what
he asserted. Dunlap has met his burden only insofar as he has
established that Hinger and Radecic knew of his identity as
the Providence Integrity Line caller.
3.
Whether Dunlap has shown “But For”
Causation
Third,
and finally, Dunlap must show that he was terminated because
of his protected activity.[208] This element requires a
showing of “but for” causation: Dunlap must
demonstrate that his termination would not have occurred
“in the absence of-that is, but for” the
impermissible retaliation by the employer.[209] Having
narrowed the factual grounds on which Dunlap has established
the first two elements of his prima facie case, the
Court considers this final element only in the context of
Dunlap's call to the Providence Integrity Line, and
Radecic and Hinger's knowledge of that call.
Imaging
Associates maintains that Dunlap's allegations are
insufficient to state a prima facie case as to this
element, causation, because “it is undisputed that
[Dunlap's] performance issues not only pre-dated his
meeting with Hinger, but were sufficiently severe to prompt
[Imaging Associates] to begin searching for his replacement
even before he called the [Providence Integrity
Line].”[210] In response, Dunlap argues that, to
survive summary judgment, he need only show temporal
proximity between the protected activity and the termination
to support an inference of causation.[211]
On
summary judgment, “[t]emporal proximity between
protected activity and an adverse employment action can by
itself constitute sufficient circumstantial evidence of
retaliation in some cases.”[212] This is particularly
true “when an adverse employment action follows on the
heels of protected activity, ” as this can establish a
causal inference that creates a triable issue for a
jury.[213]However, this rule is not absolute, and
this inference does not follow automatically after a specific
length of time is established. In fact, “‘there
is no set time beyond which acts cannot support an inference
of retaliation, and there is no set time within which acts
necessarily support an inference of retaliation, '”
rather, “courts must consider the surrounding
circumstances.”[214]
Dunlap
argues that he has met his burden regarding this element
based solely on the facts that Dunlap informed Hinger on
August 1, 2014 that he was the Providence Integrity Line
caller, Hinger determined Dunlap's termination was
necessary on August 6, 2014, and Hinger terminated Dunlap on
August 13, 2014. Dunlap argues that these events, taken in
isolation-which unfolded in the span of less than two
weeks-are sufficient alone to support a causal inference and
thus carry Dunlap's burden on the third and final element
of his prima facie case.
However,
when the events that Dunlap points to are examined in
context, the timeline leading to Dunlap's termination is
substantially more complex than what is revealed by looking
only to this brief, two-week period. And, the broader
timeline that is established by the record as a whole is
insufficient to show causation.
First,
the undisputed facts show that Radecic, with support from the
Imaging Associates Physicians, had decided that Dunlap's
termination was warranted and necessary-and took steps in
furtherance of that termination-before any protected activity
that remains at issue occurred. As previously determined,
Imaging Associates did not know that Dunlap's internal
complaints were made in furtherance of an investigation into
fraud or were protected activity under the FCA. Thus, in
assessing causation, the Court looks only to the conduct for
which Imaging Associates possessed the requisite knowledge:
Dunlap's calls to the Providence Integrity
Line.[215] Dunlap placed these calls, and
reported his concerns to Imaging Associates' board member
Morton, in April and early May 2014.[216] Radecic
did not deduce Dunlap's identity as the caller until he
saw the HR Umbrella Report, which was distributed to the
Imaging Associates Physicians and management on June 30,
2014.[217] Hinger learned Dunlap was the caller
on August 1, 2014.[218]
Imaging
Associates' determination that Dunlap's performance
was sufficiently poor to justify termination predates both
the protected activity itself-i.e., Dunlap's
April 2014 calls- and Imaging Associates' subsequent
knowledge thereof. By December 2013, many of the Imaging
Associates Physicians were dissatisfied with Dunlap's
performance and calling for his termination. On April 13,
2014-before Dunlap called the Providence Integrity
Line-Radecic started the process of securing a replacement
for Dunlap's position. And, the record shows that prior
to August 1, 2014, Hinger was aware that staff had complaints
about Dunlap's performance, and that many of the Imaging
Associates Physicians were requesting Dunlap's
termination because of Dunlap's deficient performance.
In sum,
the record shows that the decision to terminate Dunlap
predates both his protected activity and Imaging
Associates' knowledge thereof. Because of this, the
temporal proximity of Dunlap's protected activity and his
termination cannot, alone, support an inference of
causation.[219]Dunlap offers no additional evidence to
support a prima facie case for causation, nor can
the Court discern any from the record. The Court thus
concludes that the connection between Dunlap's protected
activity and his termination is too attenuated to satisfy the
“but for” causation standard. Accordingly, Dunlap
has not satisfied the final element, and thus has not
articulated a prima facie case for retaliation under
the FCA.
C.
Imaging Associates' Legitimate Non-Retaliatory Reason for
Dunlap's Termination and Dunlap's Rebuttal
Having
determined that Dunlap did not articulate a prima
facie case for employment retaliation, the Court need
not reach the remainder of the McDonnell Douglas
burden shifting analysis to resolve Dunlap's claim for
employment retaliation under the FCA. Even if,
arguendo, the temporal proximity of Dunlap's
protected activity was sufficient to support an inference of
causation, and he had stated a prima facie case,
Dunlap's claim still fails. Imaging Associates has set
forth a legitimate non-retaliatory reason for Dunlap's
termination, and Dunlap has not demonstrated that this reason
is pretext.
1.
Whether Imaging Associates Has Provided a Legitimate
Non-Retaliatory Reason for Dunlap's Termination
The
burden on an employer to articulate a legitimate
non-retaliatory reason for an employee's termination is
“merely a burden of production, not one of
proof.”[220] In fact, “[t]he defendant need
not persuade the court that it was actually motivated by the
proffered reasons;]” but “[t]he explanation
provided must be legally sufficient to justify a judgment for
the defendant.”[221] If the defendant employer meets
this burden, “[t]he employer's articulation of a
facially nondiscriminatory reason shifts the burden back to
the plaintiff to show that the employer's reason was a
pretext for discrimination.”[222]
Imaging
Associates offers an extensive recounting of Dunlap's
performance problems. As early as 2013, physicians and staff
were dissatisfied with Dunlap's management style, his
communication with staff and management, and his ability to
handle necessary tasks. Imaging Associates provides evidence
of personnel clashes that Dunlap was involved in, and also
recounts how Dunlap became increasingly unresponsive to both
staff and physicians over time. In addition, the Medical
Director, many Imaging Associates Physicians, and Radecic
were also dissatisfied with Dunlap's handling of key
projects; in particular, his poor management of the ACR
accreditation process and his inability to complete certain
functions during the PACS rollout.
It is
undisputed that, by 2014, the Imaging Associates Physicians
were largely dissatisfied with Dunlap's performance. By
April 2014, Radecic had determined that Dunlap's
performance was unsatisfactory and engaged an outside firm to
secure his replacement. And, when Hinger took over as CEO in
August 2014, he reached the same conclusion.[223] Thus,
while no single failure led to Dunlap's termination,
Imaging Associates contends that it was the whole of these
issues that ultimately led Hinger-acting for Imaging
Associates-to conclude that Dunlap's continued employment
had become untenable.[224] These issues, collectively,
establish a legitimate non-retaliatory reason for
Dunlap's termination: Dunlap's poor performance.
2.
Whether Dunlap Has Demonstrated that Imaging
Associates' Proffered Reason for Dunlap's Termination
is Pretext
The
burden thus returns to Dunlap to demonstrate that Imaging
Associates' proffered reason is “merely pretext for
impermissible retaliation.”[225] Dunlap has not done
so. “[A] plaintiff at the pretext stage must produce
evidence in addition to that which was sufficient for her
prima facie case in order to rebut the defendant's
showing.”[226] In general, a “[p]laintiff may
prove pretext ‘either directly by persuading the court
that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's
proffered explanation is unworthy of
credence.'”[227] “When the plaintiff offers
direct evidence of discriminatory motive, a triable issue as
to the actual motivation of the employer is created even if
the evidence is not substantial.”[228]However,
“[i]f [the] plaintiff offers indirect evidence that
‘tends to show that the employer's proffered
motives were not the actual motives because they are
inconsistent or otherwise not believable,' such evidence
must be ‘specific' and ‘substantial' in
order to create a triable issue of fact as to whether the
College had a discriminatory motivation.”[229]
Dunlap
offers no direct evidence of a retaliatory motive; Dunlap
relies on circumstantial evidence and advances two arguments
as rebuttal.[230] First, Dunlap argues that the
“temporal nexus” between Imaging Associates'
notice of his protected activity and his termination
demonstrates that Imaging Associates' stated reason for
the termination are pretext.[231] This argument is
unavailing. Absent some other support, “mere temporal
proximity is generally insufficient to show
pretext.”[232] This is particularly true where, as
here, calls for Dunlap's termination predate Imaging
Associates' knowledge of his protected activity,
[233] and where no other evidence is offered
to suggest pretext. Dunlap does not point to any facts
tending to indicate “that the employer's
explanation is not credible.”[234]
Dunlap
also argues that factual disputes regarding his purported
performance issues preclude summary judgment.[235] However,
Dunlap has not demonstrated any genuine dispute of material
fact as to the explanations that Imaging Associates offers.
In fact, Dunlap concedes that many of these performance
problems occurred, but argues nonetheless that that he should
not be held personally responsible for the problems; or
contends that the complaints levied against him were unfair
or unfounded.[236] This is insufficient.
First,
several of Dunlap's purported points of dispute are
unsupported by evidence.[237] “The nonmoving party
cannot avoid summary judgment by relying solely on conclusory
allegations unsupported by facts.”[238] Rather,
“[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing
to particular parts of materials in the record or other
materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”[239] Dunlap's blanket
assertions of disagreement with certain performance problems
that Imaging Associates has identified do not meet this
standard.
More
critically, though, it is undisputed that, whether rightfully
or not, many Imaging Associates Physicians, and Dunlap's
management, were dissatisfied with Dunlap's
performance.[240] While Dunlap raises ancillary issues
and disagrees with the blame that he received for certain
problems, the record is clear-and Dunlap concedes-that
Imaging Associates faced problems in areas for which he was
responsible.[241] Certainly, it is possible that Hinger,
Radecic, Dr. Inampudi, and others at Imaging Associates who
advocated for Dunlap's termination were mistaken in these
opinions. But a difference of opinion is not pretext.
“[T]he Court's role is to remedy discrimination,
not to ‘assume the role of a super personnel
department, assessing the merits-or even rationality-of
employers' nondiscriminatory business
decisions.”[242] The evidence Imaging Associates
provides uniformly points to performance issues predating any
protected activity by Dunlap.
Where,
as here, “evidence to refute the defendant's
legitimate explanation is totally lacking, summary judgment
is appropriate even though plaintiff may have established a
minimal prima facie case based on a McDonnell
Douglas type presumption.”[243] Dunlap
has not provided evidence sufficient to show that the
legitimate non-retaliatory reason for his termination offered
by Imaging Associates is pretext, nor has he demonstrated a
genuine dispute of material fact such that a rational trier
of fact could find for Dunlap on this point.
Accordingly,
Imaging Associates' Motion for Summary Judgment is
GRANTED as to Count V, Dunlap's claim
for ...