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Debra Mousavi v. Parkside Obstetrics

August 16, 2011


The opinion of the court was delivered by: Charles P. Kocoras, District Judge:


This matter comes before the Court on the motions of Defendants Parkside Obstetrics Gynecology and Infertility, S.C. ("Parkside") and Helayne Merkin, M.D. ("Dr. Merkin") (collectively, the "Defendants") for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants also moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the motion for judgment on the pleadings and the motion for summary judgment are granted.


On February 16, 2009, Parkside, a medical practice, hired Debra Mousavi ("Mousavi") as an at-will employee to serve as its office manager. Among other duties, Mousavi was in charge of (1) preparing the credential applications for physicians and submitting the documents to insurance companies, (2) screening candidates and conducting employee interviews, (3) managing payroll, (4) effectuating payments, and (5) ensuring that Parkside employees did not work beyond their scheduled hours.

At the beginning of Mousavi's employment, Megan Bruce ("Megan"), another Parkside employee, trained Mousavi on how to handle Parkside's payroll. Megan explained that when an employee worked more than 40 hours per week, the overtime hours were not paid at a premium rate but were "banked" for future use. In other words, when an employee worked less than 40 hours in a week, any hours he had "banked" would allow him to get compensated as if he had worked a 40-hour week.

During her training, Mousavi discovered that one employee, Kay Taylor ("Taylor"), had accumulated 14 hours of overtime pay. Convinced that this practice was illegal, Mousavi went, along with Megan, to Dr. Merkin's office to discuss the issue. Mousavi notified Dr. Merkin that some employees had worked overtime, that their hours had been banked, but that none of them had been paid overtime. Mousavi suggested that, to render the office compliant with regulations, Parkside needed to pay out all the overtime, and Mousavi would guarantee that, from then on, no one would work overtime. Dr. Merkin responded that Parkside did not pay overtime.

On June 29, 2009, Dr. Merkin gave Mousavi a negative performance review because several key areas of her work needed improvement. According to Dr. Merkin, Mousavi mishandled the interview process for a front desk position because she did not conform to the time-line they had agreed upon. Instead, it was left for Dr. Merkin to complete the hiring process. Mousavi also mismanaged the credential application process of a newly-hired physician. Mousavi failed to submit the required documents, sent the credential documents to the wrong address, and used an incorrect amount of postage. As a result, several applications were rejected and sent back to be completed properly. These errors caused delay in payments to the practice and in the physicians' application process. In a letter responding to Dr. Merkin's negative performance review, Mousavi admits that she mishandled the interviewing process by stating that it is "my fault I did not message you on Friday [. . .] I should not have taken this into consideration with my delay." Mousavi also admits that she made an error by sending the applications to the wrong address. In her deposition, when asked "isn't it true that when you did submit [the doctor's] credentialing papers, [. . .] you submitted them to Tricare South instead of Tricare North?" Mousavi answered "yeah." However, Mousavi disputes that she committed any other error that contributed to the delay and rejection of the applications. In particular, Mousavi maintains that sending the applications was contingent upon receipt of a signed diploma from an outside person. Mousavi also claims that the postage she used was in accordance with her training.

Dr. Merkin had initially planned to review Mousavi's work six weeks after the unfavorable performance review. However, Mousavi's performance deteriorated at a quicker pace. Mousavi continued to mishandle the credential application process causing the practice time and money. Mousavi also misdated checks, ordered and used credit cards without approval, and caused the practice to lose money by failing to pay past due bills or by effectuating duplicate payments. Mousavi does not dispute that she used Parkside's credit cards without Dr. Merkin's approval. Mousavi purports to dispute the fact that she mishandled checks but cites to portions of her deposition which she failed to attach to her response to Defendants' motion for summary judgment. Finally, Mousavi admits that she made duplicate payments. A review of Mousavi's deposition reveals that when opposing counsel asked her "[so] the same bill was paid twice [?]" Mousavi answered "correct."

Taking all these factors into account, Dr. Merkin decided on July 21, 2009, that she would dismiss Mousavi. On that day, however, Mousavi left the office on medical leave. Later that day, Mousavi informed Parkside that she would return to work on August 3, 2009. Dr. Merkin claims that, rather than firing her over the phone, she opted for a face-to-face meeting to inform Mousavi of her dismissal.

An exchange of letters and e-mails followed. On July 22, 2009, Dr. Merkin sent Mousavi a letter informing her that, based on Parkside's sick leave policy, she would not receive compensation for the last two weeks of July. On July 30, 2009, Mousavi responded with an e-mail advising Dr. Merkin that she was entitled to payment for some days she had actually worked during the month of July. In the e-mail, Mousavi reiterated her March 2009 conversation about Parkside's alleged illegal overtime practices. On the same day, Mousavi sent a follow-up e-mail describing Dr. Merkin as being "mad" about Mousavi's complaints regarding Parkside's non-compliance with federal law. Mousavi also threatened that if she did not get compensated, she would file a lawsuit. On August 1, 2009, Dr. Merkin sent another letter asking Mousavi to report to her office on August 3. On August 3, 2009, Mousavi went to Parkside and Dr. Merkin terminated her employment.

The parties now dispute the exact date and reason Dr. Merkin decided to terminate Mousavi. Dr. Merkin alleges that she decided to terminate Mousavi on July 21, 2009, based on her deficient work performance. In contrast, Mousavi maintains that Dr. Merkin could not have decided to terminate her on July 21, 2009, because during her absence for sick leave, both parties communicated on whether Mousavi was entitled to paid sick leave. According to Mousavi, Dr. Merkin reached a decision after receiving the July 30, 2009 e-mails, whereby Mousavi urged Parkside to comply with federal laws or face a lawsuit. Dr. Merkin claims that the overtime pay issue surfaced on July 30, 2009, when Mousavi suspected she was facing imminent termination.

On July 30, 2010, Mousavi filed a complaint against Dr. Merkin and Parkside. The only remaining claim against Defendants is a retaliatory discharge claim under the Fair Labor Standards Act ("FLSA"). Defendants now move for summary judgment on the retaliatory discharge claim.


I. Judgment on the ...

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