Doran v. McDonald

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DR. TRISHA DORAN, M.D.,

Plaintiff,

Case No. 2:16-cv-665

v. Chief Magistrate Judge Elizabeth P. Deavers

ROBERT MCDONALD,

SECRETARY FOR THE

UNITED STATES DEPARTMENT

OF VETERANS AFFAIRS,

Defendant.

OPINION AND ORDER

Plaintiff, Trisha Doran, M.D. (“Dr. Doran”), brings this action pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 and the Americans with Disabilities Act,1

asserting claims of discrimination and retaliation2 against Defendant Secretary for the United

1 Although Dr. Doran brings her disability discrimination claim under the ADA, the

Rehabilitation Act, 29 U.S.C. 791 et seq. is the exclusive remedy for a federal employee alleging

disability-based discrimination. Bent-Crumbley v. Brennan, 799 F. App’x 342, 344–45 (6th Cir.

2020) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007)). As a parallel statute, it

specifically incorporates the standards applied under the ADA to determine violations, 29 U.S.C.

§ 794(d), and courts look to guidance under the ADA to determine if a federal employee has

been discriminated against because of a disability. Id. (citing Mahon v. Crowell, 295 F.3d 585,

588–89 (6th Cir. 2002)).

2The parties stipulated to the dismissal of Dr. Doran’s hostile work environment claim

under Title VII and her claim brought pursuant to the Lilly Ledbetter Fair Pay Act of 2009.

(ECF No. 52.)

States Department of Veterans Affairs3 (“the VA”) arising from the termination of her

employment. With the consent of the parties (ECF No. 47), pursuant to 28 U.S.C. § 636(c), this

matter is before the Court for consideration of Defendant’s Renewed Motion for Summary

Judgment (ECF No. 57), Plaintiff’s Memorandum Contra (ECF No. 65), and Defendants’ Reply

in Support (ECF No. 69). For the following reasons, Defendant’s Renewed Motion for

Summary Judgment (ECF No. 65) is GRANTED.

I. BACKGROUND

The factual background of this case has been extensively documented at both the

administrative and judicial levels including before the Medical Executive Board (“MEB”),

Administrative Investigation Board (“AIB”), the Professional Standards Board (“PSB”), the

Disability Appeals Board (“DAB”), this Court,4 and the Sixth Circuit Court of Appeals.5

Accordingly, the parties have stipulated to the facts set forth below.6 Both parties also have set

forth numerous additional factual allegations in their briefing. Given the sheer volume of factual

information, however, the Court will address any additional factual matters only to the extent

necessary for its discussion.

Beyond the following stipulated facts, the parties also agree, citing to Univ. of Tenn. v.

Elliott, 478 U.S. 788, 795 (1986), that any prior administrative findings are not preclusive here

3 At the time the Complaint was filed, the Honorable Robert McDonald was serving as

the Secretary. He was succeeded by the Honorable Robert Wilkie on July 30, 2018. (ECF No.

57, n.1.)

4Doran v. McDonald, Case No. 2:16-cv-532 (Opinion and Order issued February 9, 2018,

affirming the decision of the DAB and denying Dr. Doran’s motion for summary judgment.

(ECF No. 39.)

5Doran v. Wilkie, Case No. 18-3327 (Opinion issued April 1, 2019, affirming this Court’s

grant of summary judgment to the Secretary of the U.S. Department of Veterans Affairs and the

U.S. Department of Veterans Affairs.

6 See ECF No. 56

and that Dr. Doran is “entitled to a trial de novo on her claims.” Further, they agree that the

administrative “decision(s) may be admitted as evidence and accorded such weight as the Court

deems appropriate.” Abrams v. Johnson, 534 F.2d 1226, 1228 (6th Cir. 1976).

A. STIPULATED FACTS

The Department of Veterans Affairs is an executive department whose primary

purpose is to assist the millions of veterans in need of federal benefits. As part of that mission,

the VA, through the Veterans Health Administration, operates the United States’ largest

integrated healthcare system comprised of 1,233 facilities serving nearly 9 million veterans

annually. The Columbus, Ohio Chalmers P. Wylie VA Ambulatory Care Center is part of the

VA Central Ohio Healthcare System, which in turn is part of the VHA’s Veterans Integrated

Service Network (“VISN 10”), comprised of 11 medical centers as well as 63 Community Based

Outpatient Clinics. VISN 10 services more than 685,000 veterans from Michigan, Ohio,

Northern Kentucky and Indiana. Id. The Columbus VA provides care in dozens of specialties

including gastroenterology. The gastroenterology department is made up of a handful of

physicians, ranging from 2 to 6 at any given time.

Dr. Doran is a licensed physician, board certified in internal medicine and

gastroenterology. She obtained a Bachelor’s Degree in microbiology in 1994 and worked as a

molecular biologist at the James Cancer Hospital in Columbus, Ohio where she conducted

genetic research in immunotherapy. Dr. Doran went on to complete medical school in 2002, an

internal medicine residency in 2005, and a gastroenterology fellowship in 2008, all at The Ohio

State University. Dr. Doran chose to specialize in gastroenterology because “it is very

complicated, so it was interesting because it was complicated. While the other specialties to me

seemed kind of simple and small.”

Before beginning her employment with the VA in 2008, Dr. Doran worked as a

Critical Care Hospitalist at the Adena Medical Center. Other than that experience during her

fellowship, the VA was Dr. Doran’s first job as a practicing physician. Dr. Doran was initially

hired at the Columbus VA on December 21, 2008, under a term, excepted employment under 38

U.S.C. § 7405(A)(1) and was eventually converted to a fulltime, excepted employee under 38

U.S.C. § 7401. Dr. Doran’s starting salary at the VA was $196,000.00 annually. At the outset of

Dr. Dr. Doran’s employment, she received a one-time payment of $20,000.00 as a recruitment

incentive.

At the time that Dr. Doran began her employment with the VA, Dr. Doran’s direct

supervisor was Dr. Mark Cooperman. Dr. Cooperman held that position until 2010 when he

became the Columbus VA Chief of Staff. Although Dr. Cooperman became the Columbus VA

Chief of Staff, he continued to conduct Dr. Doran’s proficiency reports until 2012. Dr. Doran

consistently received favorable evaluations and feedback for each year of her employment

through 2013. Dr. Doran routinely received significant performance pay bonuses. By mid-2013,

Dr. Doran’s salary had increased to $265,000.00 annually. After Dr. Doran’s VA employment

ended in 2015, she began working for Gastroenterology Associates of Cleveland, Inc. in

Beachwood, Ohio.

On June 2, 2015, Dr. Cooperman issued Dr. Doran a notice of proposed removal

and revocation of clinical privileges. The notice described the four charges against her:

Charge 1: Failure to provide standard of care.

Specification 1 – Dr. Doran’s care of Patient A during his EGD and colonoscopy

on January 26, 2015.

Specification 2 – Dr. Doran’s care of Patient B during his EGD on January 27,

2015.

Specification 3 – Dr. Doran’s care of Patient C during his colonoscopy on October

17, 2014.

Charge 2: Lack of Candor.

Specification – Dr. Doran’s attempts to have nurses corroborate her late addition to

Patient A’s Medical records in support of her version of events – despite the nurses’

contradictory Recollections regarding Patient A’s code blue.

Charge 3: Inappropriately documenting in a patient record

Specification - Dr. Doran’s late addition (on March 16, 2015) to Patient A’s medical

records

Charge 4: Performing a procedure without appropriate privileges

Specification – Dr. Doran’s performance of annul tattooing with methylene blue on

Patient D on June 20, 2014.

The notice informed Dr. Doran she had 14 days to reply to the proposed removal

orally, in writing, or both and that any such reply could include affidavits or other documentary

evidence. Dr. Doran, through counsel, responded to the notice of proposed removal in writing

on July 22, 2015. A PSB reviewed the care of Patients A, B, C, and D, as well as nursing

concerns about patient safety. The PSB found “a recurring theme of error in decision making

and judgment” in Dr. Doran’s care, and recommended that she undergo further evaluation to

determine her fitness for duty, as well as receive mentoring, proctoring, and remedial training.

Dr. Borchers testified to the PSB but did not vote.

An MEB also reviewed Dr. Doran’s care and considered the PSB’s recommendations.

After reviewing the evidence and testimony from Dr. Doran, the MEB concluded that because

alternatives to revoking Dr. Doran’s privileges were not feasible for the VA, because Dr.

Doran’s failure to understand her role and responsibility in the patient care at issue threatened

patient safety, and because the patients reviewed had poor outcomes, permanent revocation of

her VA privileges was warranted. Again, Dr. Borchers testified at the MEB but did not vote.

Dr. Borchers answered the MEB’s questions regarding the PSB’s recommendations, noting that

Dr. Doran’s demeanor and conduct had changed over the last year, and he was “concerned” by

the change. He suggested that Dr. Doran’s “escalating poor decisions over the last year” could

have a physical cause, such as a brain tumor. Dr. Cooperman was the chair and a voting member

of the MEB.

An Administrative Investigation Board also reviewed Dr. Doran’s treatment of

Patient A, as well as allegations that Dr. Doran made amendments to the medical records of

Patients A, B, C, and D and/or had requested staff members to make amendments. The AIB’s

review included 16 interviews and 30 exhibits. The AIB recommended that “appropriate

corrective action be taken” regarding Patient A’s care, Dr. Doran’s amendment to Patient A’s

medical record, and her request that staff amend Patient D’s medical record. Neither Dr.

Borchers or Dr. Cooperman testified before the AIB. On August 21, 2015, the Director of the

Columbus VA, Keith Sullivan, sustained the charges against Dr. Dr. Doran. On August 21,

2015, Dr. Doran was removed from VA employment for “unacceptable performance and

conduct.”

B. PROCEDURAL STIPULATIONS

VA physicians appointed under 38 U.S.C. § 7401, such as Dr. Doran, enjoy certain

procedural protections when facing major adverse employment actions. See 38 U.S.C. § 7461;

see also Fligiel v. Samson, 440 F.3d 747,750 (6th Cir. 2006). Under 38 U.S.C § 7461(c)(2), a

"major adverse action" includes suspension, transfer, reduction in grade, reduction in basic pay,

or discharge from employment. Fligiel, 440 F.3d at 750. Because her revocation of clinical

privileges and removal from VA employment involved "a question of professional conduct or

competence," Dr. Doran had the right to seek administrative review of both decisions by the

Disciplinary Appeals Board. 38 U.S.C. §§ 7461(b)(1), 7462. Under the procedures outlined in

38 U.S.C. § 7462, an employee appealing to a DAB is entitled to "[a]t least 30 days advance

written notice . . . specifically stating the basis for each charge," the potential adverse actions that

the agency may take, and a statement of the "law, regulation, policy, procedure, practice, or other

specific instruction that has been violated with respect to each charge." 38 U.S.C. §

7462(b)(1)(A). The employee is also entitled to a "reasonable time" to present a response to the

deciding official, which may include affidavits or other documentary evidence. 38 U.S.C. §

7462(b)(1)(B). Finally, an appealing employee may elect to be represented by an attorney or

other representative at all stages of their appeal. 38 U.S.C. §7462(b)(2).

Dr. Doran elected to invoke these procedural protections after her removal from VA

employment in August 2015. On September 15, 2015, through counsel, Dr. Doran sent notice

of her appeal of her termination to the VA Under Secretary of Health. Alleging that the VA "did

not support the charges by a preponderance of the evidence" and "violated her due process

rights" by imposing an "unreasonable" penalty, Dr. Doran sought restoration to her position and

of her privileging; reversal and expungement of all underlying administrative proceedings;

rescission of any reporting to any licensing board or the National Practitioner Databank; back

pay and restoration of benefits; legal fees; and "correction" of her 2014 Proficiency Report.

Accordingly, in January 2016, the VA convened a Disciplinary Appeals Board to

conduct a hearing under 38 U.S.C. § 7462. The DAB ultimately determined that Dr. Doran's

treatment of Patient A "was so removed from the standard of care [that] the penalty of discharge

is warranted." The DAB also emphasized its concerns that not only did "the testimony identify

judgement [sic] errors," but Dr. Doran also "demonstrated a lack of the insight needed to

guarantee confidence that her performance would be improved and be consistently safe in the

future."

In determining that the penalty of removal was warranted, the DAB also considered

the so-called Douglas factors, including the seriousness and notoriety of the offense, Dr. Doran's

position, her length of service and prior disciplinary record, the erosion of supervisory

confidence, consistency in penalties, any potential for Dr. Doran's rehabilitation, and any

possible mitigating circumstances. The DAB specifically noted that "[o]ther physicians at the

facility have received major adverse actions for similar acts of misconduct." Though the DAB

concluded that some of the relevant factors may have weighed in Dr. Doran's favor, it found the

penalty to be appropriate especially given the seriousness of Patient A's code blue, the erosion of

trust and confidence between Dr. Borchers and Dr. Doran, and the need for Dr. Doran, as a

licensed independent practitioner, to reflect upon her performance and role in the events under

investigation. Her consistent defense was to argue that her actions were correct and to minimize

her role in the events." The DAB therefore voted 2-1 that the penalty was appropriate and upheld

Dr. Doran's termination.

The Principal Deputy Under Secretary for Health executed the DAB's decision to

terminate Dr. Doran's employment on May 13, 2016, after considering the evidence, the DAB's

analysis, and the DAB's findings. Executing the DAB's decision was the final agency action

regarding Dr. Doran's termination. Because Dr. Doran's termination involved identified

"deviations from the standard of care," the VA was required to report the revocation of her

clinical privileges to the National Practitioner Data Bank and the State Licensing Board in

accordance with the Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660,100 Stat.

3743 (1986). See 38 C.F.R. § 46.4.

The Ohio Medical Board notified Dr. Doran in February 2018 that it intended "to

determine whether or not to limit, revoke, permanently revoke, suspend, refuse to grant or

register or renew or reinstate your license or certificate to practice medicine and surgery, or to

reprimand you or place you on probation" as a result of the VA's revocation of her privileges.

The licensing investigation is ongoing.

An employee dissatisfied with the final agency action involving a major adverse

employment action against them may seek judicial review of that decision. 38 U.S.C. §

7462(f)(1). Dr. Doran filed case number 2:16-cv-532 in June 2016, seeking to set aside the

DAB's findings as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law. Following the filing of the administrative record, both parties filed dispositive

motions. Concluding that "[t]he DAB gave Dr. Doran a meaningful opportunity to present

her case," this Court affirmed the DAB's decision, noting that the DAB reached "the reasonable

conclusion that discharging Dr. Doran was a warranted and prudent course of action.”

Over a month after the entry of judgment in favor of the VA, Dr. Doran filed a motion

for relief from judgment under Federal Rule of Civil Procedure 60. She argued that "newly

discovered evidence" in the form of a portion of Patient A's non-VA medical records established

"that the Defendant's reasons for suspending Dr. Doran's privileges was [sic] not only unfounded

but false" and indicated that the suspension "was done with a malicious and fraudulent intent."

The VA filed a response in opposition, and Dr. Dr. Doran replied.

Dr. Doran also filed a timely notice of appeal. Reasoning that the notice of appeal left it

without jurisdiction to consider the still-pending motion for relief under Appellate Rule 4, this

Court denied the Rule 60 motion. On appeal, Dr. Doran continued to argue that the DAB's

decision was not supported by substantial evidence, was arbitrary and capricious, and denied her

due process.

The Sixth Circuit conducted a de novo review of the VA's administrative action,

finding that "[w]hile a lesser sanction may also have been appropriate, we cannot say that the

DAB's decision to sustain Dr. Doran's termination was arbitrary and capricious" because its

decision was "not counter to the evidence before the agency, or so implausible that it could not

be ascribed to a difference in view or the product of agency expertise." Nor did the Sixth Circuit

find any merit to Dr. Doran's due process claims, finding that "the essential requirements of due

process . . . were met in this case." Accordingly, the Court of Appeals rejected Dr. Doran's

arguments and affirmed the decision upholding the DAB's findings. The mandate issued on May

24, 2019.

Dr. Doran first initiated EEO activity by contacting the VA's Office of Resolution

Management ("ORM") on July 14, 2015, approximately six weeks after receiving the proposed

removal in early June 2015. She initially brought three complaints. First, she complained that

proposed removal letter was discriminatory because the charges against her were unfounded,

claiming that "management is not listening to her" since she was "the only female physician in

[the] GI specialty." Second, Dr. Doran complained of harassment and hostile work environment

on the bases of mental disability and sex. This claim was based on her suspension and

administrative leave; she claimed "that the facility is forcing her to transfer." Third, Dr. Doran

alleged that she was wrongfully terminated on the bases of mental disability and sex. ORM

notified Director Sullivan of Dr. Doran's allegations via letter dated July 29, 2015.

Dr. Doran ultimately elected to file a formal complaint of employment discrimination.

She alleged discrimination on the bases of sex, perceived disability, and reprisal dating from

May 2014 to August 21, 2015. Dr. Doran listed 55 examples of alleged discrimination.

In January 2016, ORM partially accepted Dr. Doran's complaints for investigation.

ORM accepted for investigation "event 27" — Dr. Doran's removal from federal service and

revocation of her clinical privileges—as a discrete occurrence of alleged discrimination. ORM

also accepted Dr. Doran's "overall harassment claim" predicated on 27 enumerated instances of

alleged discriminatory harassment. ORM also accepted Dr. Doran's claim of "reprisal," although

noting that "the term retaliation/reprisal will be interpreted as reprisal based [on] the

complainant's allegation that management perceived her as having a disability (EEO protected

basis) since a personal tragedy occurring in 2014." Finally, ORM dismissed as untimely a newly

added claim that the local VA had "mishandled and improperly denied" Dr. Doran's Education

Debt Reduction Program (“EDRP”) benefit in 2014.

In August 2016, the VA's Office of Employment Discrimination Complaint

Adjudication issued a Final Agency Decision dismissing Dr. Doran's EEO complaint because she

had filed a case in federal court7 seeking review of the VA's administrative actions. The

dismissal noted that the pending federal complaint was "based on the same management actions

that are the subject of the complainant's administrative complaint of discrimination," and under

29 C.F.R. § 1614.107(a)(3), "an agency shall dismiss a complaint that is the basis of a pending

civil action in the a United States District Court. . . ." This lawsuit timely followed.

7 Case No. 2:16-cv-532

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” The burden of proving that no genuine issue of material

fact exists falls on the moving party, “and the court must draw all reasonable inferences in the

light most favorable to the nonmoving party.” Stransberry v. Air Wisconsin Airlines Corp., 651

F.3d 482, 486 (6th Cir. 2011) (citing Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 710

(6th Cir. 2001); cf. Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address

another party’s assertion of fact” then the Court may “consider the fact undisputed for purposes

of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, 439 F. App’x 492,

495 (6th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317-324 (1986)); see also Fed. R.

Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to

particular parts of materials in the record”). “The nonmovant must, however ‘do more than

simply show that there is some metaphysical doubt as to the material facts,’. . . there must be

evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to

create a ‘genuine’ dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x

435, 441 (6th Cir. 2011) (citations omitted).

In considering the factual allegations and evidence presented in a motion for summary

judgment, the Court “must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.” Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150

(6th Cir. 1995). “When a motion for summary judgment is properly made and supported and the

nonmoving party fails to respond with a showing sufficient to establish an essential element of

its case, summary judgment is appropriate.” Stransberry, 651 F.3d at 486 (citing Celotex, 477

U.S. at 322–23)

III. ANALYSIS

A. Disability Discrimination and Retaliation Claims

Dr. Doran has abandoned her perceived disability discrimination and retaliation claims in

favor of focusing on her gender discrimination claim. Her shift to focus exclusively on her gender

discrimination claim is evident from the opening sentence of her response: “The only reason

Trisha Doran’s privileges were revoked is because she is a woman.” (ECF No. 65, at p.1.) Her

choice not to develop her argument on these claims further demonstrates that she has effectively

abandoned these claims as further discussed below.

1) Disability Discrimination Claim

“To prevail on a claim for discrimination under the Rehabilitation Act, a plaintiff must

show that he or she: (1) is disabled, (2) is otherwise qualified to perform the essential functions

of the position, with or without reasonable accommodation, and (3) suffered an adverse

employment action solely because of his or her disability.” Mitchell v. United States Postal Serv.,

738 F. App'x 838, 843 (6th Cir. 2018) (citing Jones v. Potter, 488 F.3d 396, 403 (6th Cir. 2007)).

To satisfy the first element, Dr. Doran need not prove that she is actually disabled if she can

show that the VA regarded her as being disabled. Brady v. Potter, 273 F. App'x 498, 502 (6th

Cir. 2008).

The VA argues that Dr. Doran cannot prevail on this claim because there is no evidence

that it regarded her as disabled, that she cannot show that others who the VA regarded as

disabled were treated more favorably, or that she was terminated solely by reason of that

perception. (ECF No. 57, at pp 48-51.) Moreover, the VA contends, the record is clear that Dr.

Doran was terminated solely for reasons other than any alleged disability, namely her care of

Patient A that was found to be “so removed from the standard of care” that her discharge was

warranted. (Id. at Ex. P, AR_00002310.) Dr. Doran did not respond to these arguments. The

entirety of her response is limited to a discussion of case law establishing the elements of a

prima facie case. Dr. Doran’s failure to address the substance of this claim amounts to

abandonment. Tonkovich v. Gulfport Energy Corp., No. 2:12-CV-38, 2012 WL 6728348, at *2

(S.D. Ohio Dec. 28, 2012). Accordingly, Defendant’s renewed motion for summary judgment is

GRANTED as to Dr. Doran’s disability discrimination claim.

2. Retaliation

“A prima facie claim of Title VII retaliation requires a plaintiff to prove that ‘(1) she

engaged in a protected activity; (2) her exercise of such protected activity was known by the

defendant; (3) thereafter, the defendant took an action that was materially adverse to the plaintiff;

and (4) a causal connection existed between the protected activity and the materially adverse

action.’” Ward v. Sevier Cty. Gov't, No. 3:18-CV-113, 2020 WL 889159, at *9 (E.D. Tenn. Feb.

24, 2020) (quoting Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 568 (6th Cir. 2019)).

Unlike discrimination claims, “retaliation claims ‘must be proved according to traditional

principles of but-for causation,’ which ‘requires proof that the unlawful retaliation would not

have occurred in the absence of the alleged wrongful action or actions of the employer.’” Id. at

*10 (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014)).

The VA contends that Dr. Doran cannot set forth a prima facie case of retaliation. (ECF

No. 57, at pp. 51-58.) Specifically, Defendant notes that Dr. Doran has not presented any

evidence that her complaints relating to the nonpayment of the EDRP were presented in terms of

her belief that the EDRP was being withheld on the basis of her sex. Further, the VA asserts

that, at the time Dr. Doran initiated EEO activity by contacting ORM on July 14, 2015, the VA

already had proposed her termination over a month before on June 2, 2015. Finally, the VA

argues that it was entitled to proceed with the discipline proposed prior to her protected activity

such that Dr. Doran has failed to meet the but-for cause requirement.

As with her disability discrimination claim, Dr. Doran did not respond to any of the

VA’s arguments. The entirety of her discussion is a one paragraph restatement of the elements

of a Title VII retaliation claim as set forth in Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064

(6th Cir. 1990). Dr. Doran’s failure to address the substance of her retaliation claim amounts to

her abandonment of this claim as well. Tonkovich, 2012 WL 6728348, at *2. Accordingly,

Defendant’s renewed motion for summary judgment is GRANTED as to Dr. Doran’s retaliation

claim.

B. Gender Discrimination Claim

“To establish a Title VII violation, a plaintiff may rely on direct or circumstantial

evidence.” Lamanna v. Dayton Police Dep't, 788 F. App'x 1003, 1007 (6th Cir. 2019) (citing

Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012)). Where a plaintiff does

not base her claim on direct evidence, her circumstantial evidence is analyzed under the

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. Id.

(citing Chattman, at 346-47; Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008)).

“Under that framework: (1) the plaintiff must first establish a prima facie case of discrimination;

(2) the burden then shifts to the defendant to offer a legitimate, non-discriminatory basis for its

actions; and (3) if the defendant does so, the burden returns to the plaintiff to establish that the

employer’s proffered reason is a pretext.” Id. (citing Upshaw v. Ford Motor Co., 576 F.3d 576,

584 (6th Cir. 2009). As to pretext, “[a]t the summary-judgment stage, ‘the issue is whether the

plaintiff has produced evidence from which a jury could reasonably doubt the employer’s

explanation.’” Id. (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)).

Dr. Doran does not base her claim on direct evidence so the burden shifting framework of

McDonnel Douglas applies here. Dr. Doran can set forth a prima facie case of gender

discrimination by showing that: (1) she was a member of a protected class; (2) she suffered an

adverse employment action; (3) she was qualified for the position; and (4) she was “replaced by

someone outside the protected class or was treated differently than similarly-situated, non-

protected employees.” Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006). Only

the fourth element is in dispute here and it appears to the Court that Dr. Doran is proceeding

under both aspects.

Turning first to the issue of whether Dr. Doran was treated differently, in order to be

considered similarly situated, “the individuals with whom the plaintiff seeks to compare his/her

treatment must have: (1) dealt with the same supervisor, (2) have been subject to the same

standards, and (3) have engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer's treatment of them for it.”

Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). An employee is not required to

demonstrate an exact correlation between herself and others similarly situated. Jackson v. VHS

Detroit Receiving Hosp., Inc., 814 F.3d 769, 777 (6th Cir. 2016). Rather, an employee needs to

show only that she and her proposed comparators were similar in all relevant respects, and that

she and her proposed comparators engaged in acts of comparable seriousness. Id. (citing

Mitchell, at 583.)

In moving for summary judgment, the VA notes three potential comparators identified by

Dr. Doran in her interrogatory responses – Dr. Mayhew, Dr. Maryala, and Dr. Borchers. (ECF

No. 57, Ex. K, at p. 3.) The VA contends that Dr. Borchers, as Dr. Doran’s supervisor, is not an

acceptable comparator because he cannot be considered similarly situated. Further, it contends

that Dr. Mayhew had no sedation events and Dr. Maryala had only one. (Id., Ex. LL, at

VA_00000779.) According to the VA, there is no evidence that Dr. Maryala’s sedation event, or

any other GI provider’s sedation event, resulted in a code blue or lasting patient harm. (Id., Ex.

C, Dr. Borchers Dep., at 65:13-16; Ex. A, Doran Dep., at 159:13-15; see also Ex. LL.) In short,

the VA contends that no other Columbus VA GI provider can be found to have engaged in

conduct of comparable seriousness to Dr. Doran’s conduct relating to Patient A. Stated another

way, the VA asserts that Dr. Doran was not singled out for severe discipline and, as the DAB

noted, “[o]ther physicians at the facility have received adverse actions for similar acts of

misconduct.” (Id., Ex. P at AR_00002310.)

In her response, Dr. Doran broadly contends without specific identification that her

comparators are “every physician who was part of a code blue event is a comparator regardless

of status as supervisor as all of the physicians are subject to the same VA rules, same state-wide

disciplinary procedures for medical licensure before the State of Ohio Medical Board and same

federal statutory disciplinary procedure.” (ECF No. 65, at p. 30.) Further, she asserts without

citation to any evidentiary support, that Dr. Borchers, one of her apparent comparators, was

involved in a code blue incident that resulted in patient harm for which he received no discipline.

Further, again, without evidentiary support, Dr. Doran states that the record from the

administrative hearing confirms that other male physicians at the VA who were involved in a

code blue event that resulted in patient harm were not disciplined.

Dr. Doran’s unsupported arguments on this issue cannot be credited. She has not pointed

to any specific evidence that supports her assertions.8 Dr. Doran has failed to identify

comparable employees similarly situated to her in all relevant respects. Mitchell, 964 F.2d at

583. First, Dr. Borchers, as her supervisor, cannot be viewed as similarly situated. See, e.g.,

Mann v. Navicor Grp., LLC, 488 F. App'x 994, 999 (6th Cir. 2012) (alleged comparator and

plaintiff were not similarly situated in “all of the relevant aspects” where alleged comparator was

plaintiff’s supervisor). Further, even if Dr. Borchers’ status as her supervisor were not

preclusive, Dr. Doran has failed to adduce any facts to establish that Dr. Borchers was in any

way similarly situated to her. Dr. Borchers testified in his deposition that he had not been

involved in a code blue event. (ECF No. 63, at p. 65.) Dr. Doran has not provided any evidence

to the contrary nor any evidence of his having caused harm to a patient comparable to the harm

suffered by Patient A. Beyond Dr, Borchers, Dr. Doran has not identified any other

comparators. Moreover, she has failed to respond at all to Defendant’s discussion as to Drs.

Maryala and Mayhew, leading the Court to conclude that she concedes that she cannot

demonstrate that they are valid comparators for purposes of her gender discrimination claim.

Dr. Doran also contends that she was replaced by someone outside the protected class,

Dr. William H. Emlich, Jr. A person is replaced “’only when another employee is hired or

reassigned to perform the plaintiff's duties.’” Van Winkle v. HM Ins. Grp., Inc., 72 F. Supp. 3d

723, 733 (E.D. Ky. 2014) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990)).

Neither the record nor the parties’ arguments are particularly well-developed on this issue. For

her part, Dr. Doran seems to assume that Dr. Emlich was her replacement. She, however, does

8 Dr. Doran’s failure to rely on evidentiary support in this regard is exemplified by

citations broadly to individuals’ “depositions” as opposed to a pincite to a deposition transcript.

See specifically, ECF No. 65, at p. 31, n.9-11.

not provide any evidentiary support for this assertion. In her deposition, Dr. Doran characterizes

Dr. Emlich only as having been hired after her. (ECF 64, at p. 193.) For its part, the VA

acknowledges only that Dr. Emlich was hired in 2018 by Dr. Barry Fagan. (ECF No. 57, at p. 44

n.28.)

To the extent that the parties address Dr. Emlich at all, it appears limited to the context of

whether he could be considered a valid comparator for purposes of determining different

treatment. On this point, the VA contends that he is not a valid comparator because he was hired

more than two years after Dr. Doran’s termination and that his conduct at a different workplace

in a different timeframe and under a different supervisor is irrelevant for purposes of Dr. Doran’s

sex discrimination claim. Dr. Doran does not confirm her intention of utilizing Dr. Emlich as a

comparator, but merely states that his hiring demonstrates that the VA was not concerned with

patient safety despite its having cited that as the basis for her termination.

“Courts' analyses regarding the issue of replacement have not focused on the titles of the

positions occupied by the employees, but rather look to whether the duties associated with the

two positions are substantially similar such that it is a de facto replacement.” King v. Ferrous

Processing & Trading Co., No. 11-CV-10609, 2012 WL 3870517, at *6 (E.D. Mich. Aug. 16,

2012), report and recommendation adopted, No. 11-10609, 2012 WL 3870418 (E.D. Mich. Sept.

6, 2012) (citing Thompson v. UHHS Richmond Heights Hosp., Inc., 372 Fed. Appx. 620, 624

(6th Cir.2010). Here, as noted, neither party has provided any evidence from which the Court

could meaningfully assess whether Dr. Emlich can be considered Dr. Doran’s replacement.

Ultimately, such a showing constitutes a part of Dr. Doran’s burden of demonstrating a prima

facie case. See id. Therefore, even construing these facts in the light most favorable to Dr.

Doran, she has not provided anything beyond the bare allegation that Dr. Emlich qualifies as her

replacement. Thus, Dr. Doran has failed to set forth a prima facie case of gender discrimination.

Accordingly, the VA is entitled to summary judgment on this claim.

The above analysis is dispositive of Dr. Doran’s gender discrimination claim. However,

even if Dr. Doran had stated a prima facie claim of such discrimination, that would not be

enough to defeat the VA’s motion for summary judgment. At that point, the burden would shift

to the VA to come come forward with a legitimate business reason for terminating Dr. Doran’s

employment. This is a burden the VA easily meets. According to the VA, it terminated Dr.

Doran out of significant and substantial patient-safety concerns, including Dr. Doran’s failure to

take responsibility. Specifically, the VA terminated Dr. Doran as a result of her care of Patient A

that resulted in a code blue event followed by the $300,000 settlement of an administrative tort

claim. (ECF No. 57, Ex. Y at VA_00003434; Ex. Z at VA_00003440.) Such concerns are

undoubtedly a legitimate business reason to terminate a healthcare provider. See, e.g., Wilson v.

Cleveland Clinic Found., 579 F. App'x 392, 400 (6th Cir. 2014) (legitimate business reason

existed where plaintiff patient transporter violated clinic policy by taking actions detrimental to

patient safety when she left unattended a deceased patient); Qixin Sun v. Dep't of Veterans

Affairs, No. 2:17-CV-1039, 2019 WL 6682158, at *11 (S.D. Ohio Dec. 6, 2019) (incompetence

and misconduct were legitimate, nondiscriminatory reasons to discipline physician); Fletcher v.

U.S. Renal Care, Inc., 240 F. Supp. 3d 740, 753 (S.D. Ohio), aff'd sub nom. Fletcher v. U.S.

Renal Care, 709 F. App'x 347 (6th Cir. 2017) (patient charting errors raising patient safety

concerns was a legitimate reason for the issuance of the disciplinary counseling); Lisan v. Wilkie,

No. 1:18CV969, 2020 WL 109066, at *16 (N.D. Ohio Jan. 9, 2020), motion for relief from

judgment denied sub nom. Ronald Lisan, M.D. v. Wilkie, No. 1:18CV969, 2020 WL 2126679

(N.D. Ohio May 5, 2020) (disruptive behavior putting patient safety at risk was legitimate

business reason for ten-day suspension of anesthesiologist).

Dr. Doran summarily dismisses the VA’s legitimate business concern, characterizing

Patient A’s harm and the settlement payment as “flimsy arguments.” (ECF No. 65, at p. 40.)

Given the VA’s legitimate business reason, it would then be Dr. Doran’s burden to prove that

this purported patient safety concern was pretextual. This she cannot do. A plaintiff can

demonstrate pretext by showing that the defendant’s proffered reason “‘(1) has no basis in fact,

(2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to

warrant the challenged conduct.’” Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 434 (6th

Cir. 2002).

Dr. Doran argues that the VA’s proffered reason has no basis in fact.9 She attempts to

raise a genuine issue of material fact as to this matter by setting forth nearly twenty pages of

“disputed material facts.” These “facts” appear to be an nothing more than a repackaging of

previous arguments and contain only minimal citation to evidentiary support. For example, she

reiterates her belief that Patient A did not experience an over-sedation; continues to assert that she

provided proper care to Patient B and that others overreacted; and complains about the truthfulness

of certain nurse’s reports. Primarily, however, she details Dr. Borchers’ alleged “vendetta” against

her and his actions to insure a “predetermined outcome” of getting her fired. (ECF No. 65, at pp.

8-27.)

9It does not appear that Dr. Doran is invoking the second prong of the pretext analysis.

Under that prong, a “‘plaintiff admits the factual basis underlying the employer’s proffered

explanation and further admits that such conduct could motivate dismissal.’” Russell v. Univ. of

Toledo, 537 F.3d 596, 606 (6th Cir. 2008) (quoting Manzer v. Diamond Shamrock Chems. Co.,

29 F.3d 1078, 1084 (6th Cir. 1994)).

To be sure, Dr. Doran continues to adamantly contest the facts underlying her

termination. And it is her privilege to do so. But her steadfast disagreement does not create a

genuine issue of material fact sufficient to defeat summary judgment. The issue here is not

whether Dr. Doran made a medical error. The issue is whether the Columbus VA reasonably and

honestly believed that she did.

Under the honest belief rule, “[w]hen an employer reasonably and honestly relies on

particularized facts in making an employment decision, it is entitled to summary judgment on

pretext even if its conclusion is later shown to be ‘mistaken, foolish, trivial, or baseless.’” Chen,

580 F.3d at 401 (quoting Clay v. United Parcel Serv., Inc., 501 F.3d 695, 713 (6th Cir. 2007)).

“An employer holds an ‘honest belief if it ‘made a reasonably informed and considered decision’

before acting.” Qixin Sun v. Dep't of Veterans Affairs, No. 2:17-CV-1039, 2019 WL 6682158, at

*11 (S.D. Ohio Dec. 6, 2019) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th Cir.

1998)). “The decisional process need not have been ‘optimal,’ nor must the employer have ‘left

no stone unturned.’” Id. (quoting Smith at 807). An employee can overcome the “honest belief

rule” by pointing to evidence that “the employer failed to make a reasonably informed and

considered decision before taking its adverse employment action.” Id. (quoting Smith, 155 F.3d

at 807–808); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 286 (6th Cir. 2012) (an

employee must be permitted to present evidence to the contrary). However, “an employee’s bare

assertion that the employer’s proffered reason has no basis in fact is insufficient to call an

employer’s honest belief into question and fails to create a genuine dispute of fact.” Babb v.

Maryville Anesthesiologists P.C., 942 F.3d 308, 322–23 (6th Cir. 2019) (citing Tingle v. Arbors

at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012)).

There is no question that Dr. Doran’s care of Patient A was subject to a thorough

investigative and decisional process and multiple levels of review. Significantly, Dr. Doran was

found to pose a risk to patient safety by her immediate supervisor, the Columbus VA Chief of

Staff, the Columbus VA Director, the MEB, the AIB, the PSB, the DAB, this Court and the Sixth

Circuit Court of Appeals. (ECF No. 56, at ¶¶ 21, 25-28, 33, 35, 39, and 43.) The VA contends

that these administrative findings are entitled to great weight under Abrams, 534 F.2d 1226,

because these numerous levels of review present more than an adequate record and afforded Dr.

Doran a “more than sufficient” degree of procedural fairness. Dr. Doran does not argue

otherwise.10 The Court agrees that, under these circumstances, these administrative decisions are

deserving of great weight. The significant and multiple levels of review, as affirmed by both

this Court and the Sixth Circuit, insulate the VA’s termination of Dr. Doran from her allegations

of pretext. Qixin Sun, 2019 WL 6682158, at *12.

Dr. Doran attempts to raise an issue of fact as to whether the VA made a reasonably

informed decision before terminating her by demonstrating that she met the standard of care

relevant to medical malpractice actions in Ohio.11 Whether she met that particular standard of

care, however, is of no consequence. The VA is free to hold its employees to a higher standard

10Dr. Doran’s Response contains a section heading stating “The Administrative Record is

Rife with Contradictions and Cannot be given any weight.” (ECF No. 65, at p. 42.) It is not

followed by any argument.

11 Dr. Doran has submitted what she characterizes as “overwhelming expert support for

[her] care in this case.” (ECF No. 65, at p. 41.) The Court declines to consider these “expert

reviews.” (ECF No. 68.) First, they were filed nearly one month late and without leave of court.

Also, according to the VA, Dr. Doran failed to comply with the requirements of Federal Rule of

Civil Procedure 26(a). Moreover, even if the Court were to consider any of these “reviews,”

contrary to Dr. Doran’s position, they are readily distinguishable from the expert testimony at

issue in Babb, 942 F.3d at 323. That is, they challenge the facts underlying the VA’s decision in

this case and do not address the “likelihood that a reasonable [practitioner] would have actually

relied on those facts to fire an” employee. Id. (emphasis in original).

than the threshold for medical malpractice liability under Ohio law. See Babb, 942 F.3d at 317

n.6 (“Of course, [the employer’s] standard of care for its nurses may be higher than the general

standard of care set by state tort law” and “an employer gets to set its own standard for

employees to follow”); Benjamin v. Brachman, 246 F. A’ppx 905, 912, 916 (2007) (recognizing

that plaintiff was aware that standard of care at academic hospital was higher than the standard

used to evaluate negligence in medical malpractice cases.) Consequently, as the VA points out,

the issue here is whether it “held Dr. Doran to its own standards and in doing so relied on the

types of facts and inferences that a medical provider would reasonably consider indicative of a

breach of that standard.” (ECF No. 69, at p. 14.) Dr. Doran has not addressed this issue in any

meaningful way.

Finally, Dr. Doran appears to contend that the VA’s proffered reason is insufficient to

explain the adverse action. “A showing of insufficiency may overlap with the ‘similarly

situated’ prong of the prima facie case; pretext may be established by ‘evidence that other

employees, particularly employees not in the protected class, were not fired even though they

engaged in substantially identical conduct to that which the employer contends motivated its

discharge of the plaintiff.’” Fields v. Health, No. 3:16-cv-100-DJH-CHL, 2017 WL 3910226, at

*5 (W.D. Ky. Sept. 6, 2017) (quoting Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d

666, 676 (6th Cir. 2008)). As with her prima facie case, Dr. Doran relies on Drs. Borchers and

Emlich as her comparators. For the same reasons Dr. Doran’s reliance on these comparators

failed to raise a genuine issue of material fact at the prima facie stage, they fail to do so at the

pretext stage as well.

Thus, the VA is entitled to summary judgment on Dr. Doran’s gender discrimination

claim for the additional reason that she has failed to demonstrate pretext. Accordingly,

Defendant’s renewed motion for summary judgment is GRANTED as to this claim.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Renewed Motion for Summary Judgment

(ECF No. 57) is GRANTED. The Clerk is DIRECTED to enter FINAL JUDGMENT in favor

the of Defendant.

IT IS SO ORDERED.

Date: May 29, 2020 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE