United States District Court, N.D. Illinois, Eastern Division
MARK D. McDANIEL, M.D., Plaintiff,
LOYOLA UNIVERSITY MEDICAL CENTER, TRINITY HEALTH CORPORATION, LOYOLA UNIVERSITY CHICAGO, WILLIAM HOPKINSON, M.D., TERRY LIGHT, M.D., WILLIAM CANNON, M.D., DANE SALAZAR, M.D., and ALEXANDER GHANAYEM, M.D. Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court is Defendants' motion to dismiss  Plaintiff's amended complaint and motion to strike Plaintiff's affidavit . For the reasons set forth below, the Court grants in part and denies in part Defendants' motion to dismiss  and denies Defendants' motion to strike . Additionally, Defendants' unopposed motion for extension of time to reply in support of their motion to dismiss  is granted. Defendant Dane Salazar's motion to stay proceedings  until June 27, 2014 is denied as moot.
Plaintiff Mark McDaniel is a veteran of the United States Air Force and Air National Guard who alleges that he was wrongfully terminated from Loyola University Medical Center's five-year Orthopaedic Residency Program in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), his due process rights, and his employment contract. He also alleges that certain Defendants tortiously interfered with his prospective business relationships and defamed him.
McDaniel entered the Air Force at age seventeen. Amend. Compl. ¶ 15. After fifteen years in military service, McDaniel graduated from Friends University in Wichita, Kansas with a degree in computer science and biology. Id. at ¶ 16. Because of his years in the service, his National Guard Unit permitted him to pursue a medical degree, and he enrolled at The University of Kansas Medical School in 2002. Id. at ¶¶ 17-18. Following graduation in 2008, McDaniel began his residency in Loyola University Medical Center's ("LUMC") Orthopaedic Surgery program. Id. at ¶ 21. According to McDaniel, LUMC requires all residents to abide by the policies contained in the Resident Handbook, a mandate that is memorialized in the Graduate Medical Education Agreement ("GMEA") that residents must sign each year. Id. at ¶¶ 27-28. The Accreditation Council for Graduate Medical Education ("ACGME") is the professional organization responsible for the accreditation of residency education programs. Id. at ¶ 29. For an institution to receive federal funding, it must be accredited. Id. at ¶ 30, 33. Moreover, only residents who graduate from ACGME-accredited programs are eligible to sit for board certification examinations, and many states only issue physician licenses to graduates of such programs. Id. at ¶ 30. LUMC is accredited by ACGME, and is therefore subject to a variety of ACGME-imposed requirements. Id. at ¶¶ 32, 35-38.
According to McDaniel's complaint, he was an outstanding resident, earning "the Magis Star for outstanding service and care" in 2010, commendation for his "professionalism and communication skills, " and esteem for having the "best surgical hands" in his class. Id. at ¶ 60. In spite of these accolades, McDaniel's relationships with his superiors turned sour toward the end of his fourth year in the program when he refused to lie on a 2011-2012 ACGME compliance survey concerning the number of consecutive hours he had worked that year. Id. at ¶¶ 61-64. Although ACGME mandates that no resident may work more than 30 consecutive hours, ( id. ¶ 35), McDaniel had exceeded that cap by working a 37-hour shift on May 8 and 9, 2012. Id. at ¶¶ 61-64. Things got worse for McDaniel when his retina detached in July 2012 and Dr. William Hopkinson, the residency's program director, refused his request to miss ten days of work to recover from surgery. Id. at ¶¶ 6, 65-70. On top of that, Hopkinson took issue with McDaniel's three-week Air National Guard obligation that required him to miss work during the weeks of June 25-29, July 20-29, and September 10-14, 2012. Id. at ¶¶ 74-76.
McDaniel informed Hopkinson of his need for military leave in early June, 2012, and Hopkinson called a meeting with McDaniel to discuss this request on June 14, 2012. Id. at ¶¶ 74-77, 79, 161. At the meeting, Hopkinson demanded to see McDaniel's military orders and informed McDaniel that he was being placed on academic probation - an action that McDaniel alleges was in retaliation for his request for three weeks of leave to fulfill his military obligations. Id. at ¶¶ 75-77. McDaniel appealed the probation decision, and, ultimately, Hopkinson granted McDaniel's request for military leave on the condition that McDaniel arrange for other residents to cover his shifts. Id. at ¶¶ 80, 96. According to McDaniel, his co-residents (especially Dane Salazar) were hostile to the idea, demanding to see his orders and either refusing to work his shifts or demanding that McDaniel cover multiple shifts in return. Id. at ¶¶ 85-86. On one occasion, Salazar agreed to cover a shift for McDaniel, but then failed to show up for work and denied having agreed to cover it. Id. at ¶¶ 88-89. McDaniel alleges that he complained to Hopkinson about Salazar's behavior, but that Hopkinson took no action to curtail Salazar's harassment. Id. at ¶ 90. In addition, McDaniel complains that LUMC scheduled him to work a shift on July 25, when he was supposed to be away on military orders. Id. at ¶ 82. When he brought this to Hopkinson's attention, Hopkinson required McDaniel to find another resident to cover the shift. Id. at ¶ 83.
McDaniel's appeal concerning his academic probation was denied, at which time he requested a hearing within 45 days, pursuant to the grievance procedures set forth in the Resident Handbook. Id. at ¶¶ 96-97. However, due to an oversight by LUMC's associate dean, Dr. William Cannon, LUMC failed to schedule McDaniel's hearing in the requisite 45-day timeframe. Id. at ¶¶ 8, 97. Nevertheless, McDaniel agreed "to forgive the oversight and authorize the hearing outside the program requirements, " and so a hearing was scheduled for September 20, 2012. Id. at ¶¶ 98-99. But on September 4, before that hearing could take place, Hopkinson led a private meeting of the Education Committee, which voted to terminate McDaniel from the residency program. Id. at ¶ 100. McDaniel alleges that his termination was in retaliation for his taking military leave, his request for leave to recover from his retina surgery, and his invocation of the grievance procedures relating to his probation. Id. at ¶ 101.
On September 17, three days before McDaniel's grievance hearing, Hopkinson informed McDaniel of his termination from the program. Id. at ¶ 103. McDaniel's September 20 hearing went forward as scheduled, but Associate Dean Cannon instructed McDaniel beforehand not to mention his termination to the grievance board. Id. at ¶¶ 104-06. According to McDaniel, Dr. Terry Light, Chair of Orthopaedic Surgery and Rehabilitation, falsely testified before the grievance board that McDaniel had garnered the negative attention of ACGME by mishandling the logging of his cases into the hospital's case tracking software. Id. at ¶¶ 42-43, 107. Despite the false testimony, two of the three grievance board members "refused to sign the letter affirming McDaniel's probation, " and one of them explicitly announced his belief that McDaniel had done nothing wrong. Id. at ¶ 109. This was too little too late for McDaniel, however, because the Education Committee had already voted to terminate him from the program three days earlier.
McDaniel's termination letter set out, in his view, a number of false and pretextual reasons for his firing, including that McDaniel failed evaluations, missed assignments, was "absent without leave" on several occasions, and violated case-logging procedures. Id. at ¶¶ 111-130. McDaniel says the dates of his alleged absences stem from a letter written by Dr. Wojewnik, Chief Resident of Sports Services. Id. at ¶ 116. According to McDaniel, Dr. Wojewnik later admitted that he had been pressured to write the letter by Dr. Salazar and Dr. Hopkinson to invent a justification for termination, ( id. at ¶ 121), and none of the allegations in the termination letter matched the justifications listed in his probation letter. Id. at ¶ 131. For these reasons, McDaniel again invoked LUMC's grievance procedures and requested a hearing on his termination, which Cannon set for October 5, 2012. Id. at ¶¶ 132-33. At the hearing, however, the termination panel altered the purported bases for McDaniel's dismissal that Wojewnik had invented, citing vague reasons such as "poor communication, poor professionalism, and lying" as justification for its decision. Id. at ¶ 134.
As McDaniel tells it, LUMC employees' efforts to subvert his career actually started in April 2012, before McDaniel had requested military leave, detached his retina, or worked the 37-hour shift that seemed to precipitate his downfall at LUMC. At that time, McDaniel participated in a fellowship match program in the hopes of landing a spine surgery fellowship to begin at the conclusion of his residency. Id. at ¶¶ 137-38. Upon learning of his participation in the match program, Dr. Alexander Ghanayem, an attending physician at LUMC, asked McDaniel for a list of the thirteen residency programs that had invited him to interview and that, subsequently, he had ranked in the match process. Id. According to McDaniel, Ghanayem called each of these thirteen programs and falsely reported that McDaniel had low OITE scores (though McDaniel's amended complaint does not explain for what those initials stand), that "he was aggressive in the workplace, especially with women, " and "was unprofessional or incompetent." Id. at ¶ 141. Consequently, McDaniel alleges, none of the thirteen programs offered him a fellowship. Id. at ¶ 140. In fact, several programs did not even rank him, despite ending up with unfilled fellowship positions. Id. Matchless, McDaniel then participated in the "scramble" process, whereby unmatched candidates attempt to find last-minute placement with those programs that did not fill each of their fellowship slots. Id. at ¶ 142. During the scramble process, "multiple fellowship interviewers" informed McDaniel that someone (who McDaniel believes to be Ghanayem) "was sabotaging his attempts to find a spine fellowship." Id. at ¶ 143. But in spite of those efforts, The University of Washington-Harborview extended a fellowship offer to McDaniel. Id. at ¶ 145. However, "[a]fter Defendants learned that he had obtained this position, Dr. McDaniel was terminated as a Loyola Medical resident, requiring the University of Washington-Harborview to revoke its offer because fellowship candidates must have completed five years of orthopaedic residency...." Id. at ¶ 146.
Following his termination, subversion efforts by LUMC employees continued. Needing to complete the fifth year of his program, McDaniel applied to resident positions at twelve schools that had an open spot. Id. at ¶ 148. Four of the twelve specifically told McDaniel that "he was seriously being considered for placement." Id. at ¶ 149. Dr. Light, however, allegedly saw to it that none of the four went any further than that by - just as Ghanayem had done during McDaniel's fellowship match - informing these programs that McDaniel was a poor candidate, was aggressive with women in the workplace, and "was unprofessional or incompetent." Id. at ¶ 151.
McDaniel commenced this suit on September 11, 2013 and filed his eight-count amended complaint  on October 30, 2013. Count I alleges that LUMC, Trinity Health Corporation ("Trinity"), Loyola University Chicago ("LUC"), Hopkinson, and Salazar violated USERRA by taking adverse employment actions against him in retaliation for his military service. Count II alleges that LUMC, Trinity, LUC, Hopkinson, Salazar, and Cannon violated USERRA by creating a hostile work environment based on antimilitary animus. Count III alleges that LUMC, Trinity, LUC, Light, and Ghanayem violated his due process rights, in contravention of the Fifth and Fourteenth Amendments, by making false statements about him to prospective residency and fellowship programs. Count IV alleges that LUMC, Trinity, and LUC breached a contract with him by retaliating against him when he refused to lie about his hours on the ACGME compliance survey, failing to schedule his probationary hearing within 45 days of his request, terminating him prior to the probationary hearing, failing to adequately consider the allegations on which probation was imposed at his probation hearing, failing to adequately consider the allegations on which termination was imposed at his termination hearing, and generally denying him the due process that the Resident Handbook required. Count V alleges that Ghanayem tortiously interfered with a prospective business expectancy by making false statements to fellowship programs. Count VI makes the same claim against Light based on the statements that he allegedly made to residency programs. And Counts VII and VIII allege that Ghanayem and Light, respectively, defamed McDaniel by making these statements.
Defendants moved to dismiss McDaniel's amended complaint  in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing, among other things, that many of McDaniel's claims should be dismissed for failure to allege sufficient facts. McDaniel then filed a 63-paragraph affidavit along with his opposition brief, adding significant detail to his allegations in an attempt to bolster his complaint. Defendants replied to Plaintiff's opposition and moved to strike his affidavit , which Defendants characterize as "an attempt to file yet another amended complaint without the required leave from this Court."
II. Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6) motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). As previously noted, reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff's complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618. To survive a Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the claim must be sufficient to raise the possibility of relief above the "speculative level, " assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi., 631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) ("Whether a complaint provides notice, however, is determined by looking at the complaint as a whole.").
A. USERRA Claims Against Dr. Salazar, Trinity, and ...