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Fired doctor fights noncompete agreement

Peter Vieth//September 3, 2015

Fired doctor fights noncompete agreement

Peter Vieth//September 3, 2015

CA Salem physician claims he was terminated by his practice group after the business forced him to sign a noncompete agreement that now bars him from working anywhere near his home.

Allergist Thomas Fame is asking a judge to release him from restrictions that keep him from practicing or soliciting patients in an area with a roughly 50-mile radius around his former employer’s office for two years or more.

Fame says the noncompetition and nonsolicitation requirements include time extensions that could penalize Fame if he were to challenge the limitations in court. Despite that risk, Fame will take his objections to trial in Roanoke next month.

Fame said he has practiced allergy and immunology in the Roanoke Valley for 23 years. After leaving Lewis-Gale Medical Center, he went to work in 2010 as a non-partner employee of Allergy and Immunology PLC, the company that owns Asthma and Allergy Center in Roanoke.

Fame operated from the company’s office in Salem and saw patients referred from Lewis-Gale, the employer said.

The employer’s office manager said in an affidavit that the company intended to keep Fame as an employee for only three to five years and then replace him with a “paramedical” to increase profits from the Salem office.

After eight months seeing patients at the Salem office, the company presented Fame with a “Nonmember Employee Agreement” with the noncompete clauses. Fame said he signed the agreement.

Practicing at the Salem office, Fame garnered honors as a “Top Doc” by a local magazine and was praised for his “bedside manner” in another publication.

Four years later, the company fired Fame without notice. Fame claims his employers told him they wanted to make room for a younger physician. Fame is 58.

In court filings, the company said Fame was terminated May 1 because he was not profitable enough and had stayed the expected five years.

Now, Fame said he faces having to move from his home of 23 years, where he has helped establish a Haiti medical ministry at his church and where he has been involved with the local Rotary Club.

“Anticompetition clauses like this one are usually bold attempts by companies to smother free market competition. They often prevent people from making a living,” said Fame’s lawyer, Devon J. Munro of Vinton.

Fame said the company cannot justify the noncompete clause with a contention that Fame had access to trade secrets, since the company conceded he had no role in management.

“He is simply a popular, treating allergist who A&I fears may draw some of its patients away,” Munro wrote in a court brief.

Munro also argued the prohibited territory under the noncompete clause is larger than Fame’s practice area. Fame never saw patients from two of the restricted counties, Munro said, so the covenant is “overbroad as a matter of law.”

Munro also pointed to two provisions which potentially could extend the two-year time period of the restrictive covenant. One restarts the two-year period from the date of any final judgment enforcing the covenant and the other tolls the time period for any time Fame is actually competing in violation of the covenant.

“This is unduly harsh upon Dr. Fame, who has no meaningful way of predicting the actual length of a restriction, because he has no way to predict the duration of qualifying litigation, or to determine how long the provisions will last if A&I accuses him of competing,” Munro wrote.

The employer, represented by Roanoke’s Tommy Joe Williams, responded that the time extension provisions simply anticipate the possibility that Fame might ignore the non-compete clause, and would trigger the two-year period on enforcement.

The prohibited area is no larger than Fame’s practice area, Williams contended, so it should be deemed reasonable in scope.

“This case is not ripe for summary judgment,” Williams said in an Aug. 21 brief.

Roanoke Circuit Judge Charles N. Dorsey agreed. He rejected Fame’s motion for summary judgment Aug. 27.

“Given that Defendant has yet to put forward any evidence and still wished to take depositions, and recognizing that the trial date for this matter is relatively soon, it would be unwise to rule as a matter of law on the enforceability of the challenged covenant,” Dorsey wrote.

The trial is scheduled for Oct. 14.


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