Doctor’s termination was not retaliation

Where a doctor alleged that he was terminated days after he complained about allegedly being pressured to commit fraud regarding hospital admissions, but there were legitimate, non-discriminatory reasons for his termination that he failed to show were pretextual, the employer prevailed on the retaliation claim.

Background

Raymond Faber, M.D. was employed by Mountain States Physician Group Inc., or MSPG, and worked as a nocturnist at Johnston Memorial Hospital, or JMH, from 2017 until he was terminated Jan. 12, 2020. Defendant Ballad Health manages operations at JMH. Ballad is the parent company of Mountain States Health Alliance, or MSHA. MSHA is also the parent company of Blue Ridge Medical Management Corporation, of which MSPG is a subsidiary.

In this civil suit, Faber has alleged that MSPG and Ballard unlawfully retaliated against him because he engaged in protected activity under the federal False Claims Act, or FCA. He has also asserted a related state-law claim of wrongful discharge. Defendants have moved for summary judgment.

Ballad

Ballad contends that it is entitled to summary judgment because it is not a proper defendant. The only retaliatory act Dr. Faber alleges is his termination, and Ballad did not terminate Dr. Faber, as it was not his employer. Dr. Faber responds that the anti-retaliation provision of the FCA contemplates claims by contractors as well as employees. He argues that he was a contractor of Ballad and can thus bring a retaliation claim against Ballad.

Dr. Faber is correct that the statute covers contractors. The problem is that the record contains no evidence that he was a party to any contract with Ballad. He was employed by MSPG. MSPG presumably had a contract with JMH, although that contract is not in the record. JMH is majority-owned by MSHA, and MSHA’s parent company is Ballad. Ballad is thus a parent company of Dr. Faber’s employer, several times removed.

Dr. Faber points to case law indicating that physicians with admitting privileges in hospitals could be considered contractors of those hospitals. Setting aside the factual differences between the contractual relationships in that case as compared to this one, the simple truth is that Dr. Faber did not sue a hospital. He sued the ultimate parent company of a hospital. He has shown no basis for piercing the corporate veil, nor has he even argued that theory of liability. There is simply no ground on which Ballad could be held liable for Dr. Faber’s FCA retaliation claim. The court granted the motion for summary judgment as to Ballad.

FCA retaliation

The court assumes without deciding that Dr. Faber has produced evidence sufficient to establish a prima facie case of retaliation under the FCA. The defendants have proffered ample evidence of legitimate, nondiscriminatory reasons for his termination. Dr. Faber has failed to dispute most of the facts underlying those reasons, and he has not pointed to any substantial evidence from which a reasonable jury could conclude that the defendants’ stated reasons were pretext and that the real reason for his termination was unlawful retaliation.

Dr. Faber’s theory of pretext is essentially that he was terminated the day after he sent the email to his church listserv in which he referenced being pressured to commit fraud in admissions. The day before, he had emailed his supervisor complaining that Dr. Peters had told him not to question admission recommendations, which he believed was a direction to admit patients when admission was not medically necessary.

In Dr. Faber’s view, the fact that he was terminated immediately after the email to his church listserv, and just days after complaining to his supervisor about Dr. Peters’ directive, demonstrates that the defendants’ stated reasons are pretextual. This is so, he says, because he had not been terminated immediately following prior incidents that the defendants now reference.

In the context of this case, “[t]his temporal proximity … is simply too slender a reed on which to rest” his retaliation claim, particularly given that the email to the church listserv provided MSPG with other legitimate, nondiscriminatory reasons to discharge Dr. Faber. The defendants are therefore entitled to summary judgment on the FCA retaliation claim.

‘Bowman’

“As a threshold matter, a plaintiff attempting to assert a wrongful discharge claim pursuant to Bowman must identify a Virginia statute that the employer-defendant violated by terminating the plaintiff.” Dr. Faber relies on statutes that prevent hospitals from retaliating against cooperating witnesses or complainants.

What dooms this claim is the fact that Dr. Faber has not sued a hospital. He has sued his employer, MSPG, and the ultimate parent company of a hospital, Ballad. The statute plainly applies only to hospitals. Because the defendants are not hospitals, the defendants are entitled to summary judgment on Count Two.

Defendant’s motion for summary judgment granted.

Faber v. Mountain States Physician Group Inc., Case No. 1:20-cv-00045, Dec. 27, 2021. WDVA at Abingdon (Jones). VLW 021-3-550. 25 pp.