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Murthy v. Shinseki

May 28, 2010

KOLALA VASUDEVA MURTHY, M.D., PLAINTIFF,
v.
ERIC K. SHINSEKI, SECRETARY OF DEPARTMENT OF VETERANS AFFAIRS,*FN1 DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#41) filed by Defendant, Eric K. Shinseki. This court has carefully reviewed Defendants' Motion and supporting Exhibits, the Response (#72) and exhibits filed by Plaintiff, Kolala Vasudeva Murthy, M.D., Defendant's Reply (#77) and Plaintiff's Notice of Recent Supplemental Authority (#89). Following this careful and thorough review, Defendant's Motion for Summary Judgment (#41) is GRANTED.

FACTS*fn2

On November 20, 2000, Plaintiff was hired as a cardiologist at the Veterans Administration Hospital in Danville, Illinois (VA Hospital). Plaintiff was born in 1937 and was 63 years old at the time he was hired. At the VA Hospital, the Director is the head of the facility. The other relevant management positions are Chief of Staff, Deputy Chief of Staff, and section chiefs who report to the Chief of Staff. The Chief of Staff at the VA Hospital was Dr. Sarita Prabhudesai (Dr. Desai). She had been Chief of Staff since January 2000. The section chief that Plaintiff, as a cardiologist, reported to was the Chief of Medical Service. Dr. William Marshall was Chief of Medical Service from 2000 until the spring of 2005, when he became Deputy Chief of Staff. When Dr. Marshall moved to his new position, the position of Chief of Medical Service became open. Dr. Harminder Singh Chani became the interim Chief of Medical Service. Dr. Desai supervised Dr. Chani while he was interim Chief of Medical Service. Dr. Chani testified that, while he was acting Chief of Medical Service, he had frequent contact with Dr. Marshall and Dr. Marshall also had some supervisory authority over him.

Plaintiff testified that, in May 2005, before it had been announced that Dr. Chani had been selected to act as interim Chief of Medical Service, Dr. Marshall told him that Dr. Chani would be the acting Chief. Plaintiff testified that he was stunned by this news and Dr. Marshall then asked him, "So, when are you planning on retiring?"

The procedure at the VA Hospital for filling staff positions is that the human resources department advertises the available position and forwards to the relevant service chief a list of qualified candidates. Performance based interviews are then held with the qualified candidates. The candidates for the Chief of Medical Service position were Plaintiff, age 68, Dr. Chani, age 39, Dr. Bhaskar, age 55, Dr. Gopinath, age 42, and Dr. Natarajan, age 63. It is undisputed that all five candidates were qualified for the position.

Interviews of the candidates were scheduled and panel members were selected for the interviews. Dr. Desai personally put together the selection interview panel for the position of Chief of Medical Service. The members of the interview panel were: Dr. Desai; Dr. Robert Coleman, Chief of Surgery; Dr. William Roberts, Chief of Diagnostic Imaging; Dr. Usha Paruchuri (Dr. Par), Chief, Geriatrics & Extended Care Service; and Suzanne Slovacek, Chief of Pharmacy. Dr. Marshall was not on the interview panel. Plaintiff testified that Dr. Coleman had made some unprovoked attacks against him related to patient care. Plaintiff did not think Dr. Coleman should have been included on the selection panel. Plaintiff testified, however, that none of Dr. Coleman's disagreements with him had anything to do with his age.

Dr. Desai selected 10 typed interview questions for the interviews of the five applicants for the Chief of Medical Service position. Dr. Desai testified that each of the applicants was asked the same questions. The panel met prior to the interviews and Dr. Desai assigned each panel member specific questions to ask from the list of questions. A question was added to the bottom of the list of questions concerning research to be asked by Dr. Roberts. Dr. Roberts testified that the VA Hospital was attempting to get its research program accredited. Dr. Roberts testified that Dr. Desai asked him to ask each candidate "in what way would they support a research project and what do they think they could do about that at this institution." Dr. Roberts testified that it was "relevant to find out how would this person approach that problem of research in a small institution that obviously is not extensively funded... but should still be maintaining some things to keep an academic flavor and to give the residents some opportunity to develop critical thinking along the lines of scientific medicine." The last printed question on the list of questions was "Why did you want to apply for this job?" This question was asked by Dr. Desai. Dr. Desai testified that, during the interview process, everything was handled the same for each candidate and no candidate was asked a different kind of question than another.

In order to prepare for his performance based interview, Dr. Chani went to the research and education department in the library at the VA Hospital and discussed how performance based interviewing works. Dr. Chani also reviewed samples of performance based interview questions included in a list of about 900 sample questions. Plaintiff testified that he did not have a copy of the list of questions during his interview and stated in his Declaration that he "was not given any instruction about how to answer the interview questions."

At each interview, the candidate was asked the listed questions and the panel members scored the response. Dr. Roberts testified that the scoring system was based on the relevance of the answer and the extent to which it included concrete examples from the candidate's own experience. The performance based interview process was designed to elicit answers showing how the candidate would apply his or her experience to the question being asked. Each question was scored on a point system of one to ten points. Candidates received more points if they gave answers that pertained to the question with examples based on the candidate's experience. In addition, specific answers got scored higher than responses which did not answer the question. Each member of the panel testified at his or her deposition that the scores were based on the candidate's responses to the questions and were not based upon the candidate's age. The panel members also all testified that, in general, Plaintiff gave short answers to the questions which were lacking in specifics. According to Plaintiff, Dr. Coleman left the interview room for a period of time during Plaintiff's interview, but still scored Plaintiff's answers.

Dr. Roberts testified that Plaintiff answered the question regarding research by stating "we really don't do research here." Dr. Roberts testified that Plaintiff's answer was true. However, the panel was looking for what the VA Hospital could do to use research to support the residents, whether there were minor projects to help the residents learn some basic techniques to be done within the context of their duties at the VA Hospital. Plaintiff testified that, instead of saying "Why do you want to apply for this job?" Dr. Desai said "Why, after all these years, do you want this job, now?" Plaintiff testified that he answered the question by saying "I've been at the patient's bedside taking direct care of the patients all these years, so I thought that I would like to see how the administrative part of the responsibilities would be." Several panel members testified that they did not give Plaintiff many points for this answer because the answer did not indicate what Plaintiff would do for the VA Hospital.

Each panel member filled out a score sheet for each interview. Dr. Par wrote on the score sheet she filled out for Plaintiff, "Has the maturity, but not experience." At the end of each interview, Dr. Desai's secretary put the scores on a spreadsheet. After the last interview, the candidates were ranked in order based upon their scores on the interview. The candidate with the best score got the job. Following the interviews of the five candidates for the Chief of Medical Service position, the candidates received the following total scores: (1) Dr. Chani, 376 points; (2) Dr. Natarajan, 332 points; (3) Dr. Bhaskar, 305 points; (4) Dr. Gopinath, 278 points; and (5) Plaintiff, 114 points. Each of the five panel members gave Plaintiff the lowest score of the five candidates. Dr. Chani had the highest score and received the promotion to Chief of Medical Services. Plaintiff received notice that he was not selected for the position around June 1, 2006.

PROCEDURAL HISTORY

On June 20, 2006, Plaintiff filed an EEO administrative complaint alleging that his non-selection for the position of Chief of Medical Services was based upon age discrimination. On October 9, 2006, Plaintiff filed another EEO Administrative complaint alleging that he received a $4,000.00 pay raise rather ...


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