Cauley, M.D., Ph.D. v. Geisinger Clinic

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEITH CAULEY, M.D., Ph.D., No. 4:21-CV-00045

Plaintiff, (Chief Judge Brann)

v.

GEISINGER CLINIC,

Defendant.

MEMORANDUM OPINION

FEBRUARY 13, 2024

Keith Cauley, M.D., Ph.D., was formerly employed by Geisinger Clinic

(“Geisinger”) as a neuroradiology associate, until his eventual resignation from

Geisinger. Dr. Cauley worked for Geisinger without incident for three and one-half

years until, in the summer of 2019, Geisinger conducted an internal peer review that

it believed revealed poor performance on the part of Dr. Cauley. Dr. Cauley was

placed on administrative leave and subsequently, his attorney and Geisinger

negotiated an agreement whereby Dr. Cauley would resign from Geisinger in

exchange for Geisinger agreeing to several conditions. Dr. Cauley now alleges that

Geisinger failed to honor its obligations under that agreement. However, the

evidence is insufficient to establish that Geisinger breached any terms of the

agreement and, accordingly, it is entitled to summary judgment in its favor.

I. BACKGROUND

In May 2021, Dr. Cauley filed a second amended complaint, raising claims

for breach of contract, promissory estoppel, intentional misrepresentation, and

defamation.1 Geisinger later filed a motion to dismiss, seeking dismissal of all claims

with the exception of Dr. Cauley’s claim for breach of contract.2

This Court granted in part and denied in part the motion to dismiss.3 The Court

permitted the claim for promissory estoppel to proceed,4 but dismissed Dr. Cauley’s

claims for intentional misrepresentation and defamation.5 As to the intentional

misrepresentation claim, the Court found that the claim was barred by the gist of the

action doctrine, since the claim sounded in contract rather than tort.6 With regard to

the defamation claim, this Court determined that the claim failed because (1) Dr.

Cauley had not properly alleged who made the purportedly defamatory statements,

to whom they were made, or when or where they were made, and (2) Dr. Cauley

failed to adequately alleged that the purportedly defamatory statements were made

without privilege, or that the privilege was abused.7 Accordingly, this matter

1 Doc. 21.

2 Doc. 24.

3 Docs. 30, 31.

4 Doc. 30 at 7-9.

5 Id. at 9-23.

6 Id. at 9-13.

7 Id. at 13-23.

proceeded as to only Dr. Cauley’s claims for breach of contract and promissory

estoppel.8

Geisinger has now filed a motion for summary judgment.9 Geisinger argues

that it is entitled to judgment in its favor as to Dr. Cauley’s breach of contract claim

for three reasons.10 First, it asserts that there is no evidence that it provided any

adverse employment references to Dr. Cauley’s prospective employers.11 Second,

Geisinger contends that it afforded Dr. Cauley numerous opportunities to examine

the peer reviews both before and after his resignation, meaning it did not breach that

portion of the agreement.12 Finally, Geisinger notes that it is undisputed that it did

not report Dr. Cauley to the National Provider Database (“NPDB”).13 Geisinger also

asserts that it is entitled to summary judgment on Dr. Cauley’s promissory estoppel

claim because it broke no alleged promises to Dr. Cauley, and the evidence

demonstrates that Dr. Cauley did not change his position in reliance on any

promise.14

8 Dr. Cauley later filed an untimely motion to again amend his complaint, which this Court

denied after finding that the proposed amendment was without good cause and would unduly

prejudice Geisinger. Docs. 80, 81.

9 Doc. 74.

10 Doc. 82 at 12-20.

11 Id. at 12-15.

12 Id. at 15-17.

13 Id. at 18.

14 Id. at 18-20.

Dr. Cauley responds that sufficient facts exist to support a claim for breach of

contract or promissory estoppel.15 Specifically, Dr. Cauley argues that the evidence

demonstrates he was never provided the opportunity to examine the peer review

records, that his former supervisor gave a negative reference, and circumstantial

evidence indicates that another doctor may have spoken poorly of Dr. Cauley to a

potential employer.16 Dr. Cauley further contends that the evidence establishes

damages, or his reliance on Geisinger’s promise, as he was unable to find steady

employment for a significant period of time following his resignation from

Geisinger.17

Geisinger has filed a reply brief, rendering this matter is ripe for disposition.18

For the following reasons, the motion for summary judgment will be granted.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “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.”19 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

15 Doc. 84.

16 Id. at 17-24.

17 Id. at 24-25.

18 Doc. 92.

19 Fed. R. Civ. P. 56(a).

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”20 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”21 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”22

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.23 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved only by a finder of fact because

they may reasonably be resolved in favor of either party.”24 The nonmoving party

will not withstand summary judgment if all it has are “assertions, conclusory

allegations, or mere suspicions.”25 Instead, it must “identify those facts of record

which would contradict the facts identified by the movant.”26

20 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

21 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).

22 Id.

23 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

25 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

26 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (internal

quotation marks omitted).

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”27 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”28 Moreover, “[i]f a party fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact as required by Rule

56(c),” the Court may “consider the fact undisputed for purposes of the motion.”29

Finally, although “the court need consider only the cited materials, . . . it may

consider other materials in the record.”30

B. Undisputed Facts

From 2015 until 2019, Dr. Cauley was employed by Geisinger as a

neuroradiology associate in Geisinger’s department of radiology.31 Dr. Cauley’s

employment with Geisinger was largely uneventful until August 2019, when he was

summoned to the office of Aalpen Patel, M.D., the chairman of the radiology

department.32 Present at the meeting were Dr. Cauley; Dr. Patel; Dr. Cauley’s

immediate supervisor and director of neuroradiology, Gino Mongeluzzo, M.D.; vice

27 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

442, 448 (1871)).

28 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

29 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

30 Fed. R. Civ. P. 56(c)(3).

31 Doc. 75 ¶¶ 1, 9.

32 Id. ¶ 2.

chair of operations, Scott Collins, M.D.; and a human resources employee, Amanda

Carl.33

At that meeting, Geisinger informed Dr. Cauley that he had been placed on

administrative suspension as a result of an unfavorable peer review that Geisinger

maintained revealed poor performance.34 During this administrative suspension, an

external peer review was conducted on Dr. Cauley’s work.35 The external peer

review evidenced similarly poor results.36

Following the meeting where Dr. Cauley was placed on administrative leave,

he engaged the services of an attorney.37 In September 2019, Dr. Cauley’s attorney

and legal counsel for Geisinger negotiated an oral agreement that resulted in Dr.

Cauley’s resignation from Geisinger.38 Dr. Cauley alleges that the agreement

contained four key obligations on Geisinger’s part: (1) permit Dr. Cauley to meet

with Dr. Mongeluzzo to examine the peer reviews; (2) provide only neutral

references regarding Dr. Cauley’s employment; (3) refrain “from conducting any

33 Id. ¶ 4; Doc. 85 ¶¶ 4, 6, 8.

34 Doc. 75 ¶¶ 3, 5; Doc. 85 ¶ 10.

35 Doc. 75 ¶ 6.

36 Id. ¶ 7. Although Dr. Cauley contests that the results of the external peer review were poor,

Doc. 86 ¶ 7, the deposition testimony to which he cites provides no support for that assertion.

Doc. 87-2 at 22. In fact, none of the deposition testimony that Dr. Cauley provides to the Court

supports such a denial. See Doc. 87-2. In contrast, Geisinger points to deposition testimony

that clearly supports its assertion that the results of that review were unfavorable. Doc. 77-4 at

13; Doc. 77-5 at 10.

37 Doc. 75 ¶ 8.

38 Doc. 75 ¶ 9; Doc. 85 ¶¶ 13-15. For purposes of its motion for summary judgment, Geisinger

does not contest that the attorneys formed an agreement—whether a contract or a promise. The

Court therefore accepts for purposes of this motion that an agreement was formed.

activity that could result in a report to the NPDB”; and (4) refrain “from including

in Dr. Cauley’s personnel file anything regarding the peer reviews or negative

references.”39

Subsequent to Dr. Cauley’s resignation from Geisinger, he began a lengthy

job search. Although Dr. Cauley initially found employment with Virtual Radiology,

he voluntarily resigned from that position after approximately three months because

Virtual Radiology assigned him to read radiology images that fell outside of his

specialty.40 Following his resignation from Virtual Radiology, Dr. Cauley sought

employment with Samaritan Hospital in Watertown, New York, but the position was

canceled.41

Dr. Cauley thereafter applied for a position with Northwell Health in Staten

Island, New York (“Northwell”).42 As part of that application, Geisinger submitted

a letter to Northwell confirming the dates that Dr. Cauley had been employed by

Geisinger and confirming that he had exercised clinical privileges during his

employment.43 During the hiring process, Northwell’s chair of the department of

radiology—Jesse Chusid, M.D.—spoke with William Millar, M.D., Geisinger’s

former director of neuroradiology and Dr. Cauley’s supervisor from 2016 until July

39 Doc. 75 ¶ 25.

40 Id. ¶ 11; Doc. 86. ¶ 11.

41 Doc. 75 ¶ 12.

42 Id. ¶ 13.

43 Id. ¶ 14.

2019; Dr. Millar discussed Dr. Cauley’s strengths and weaknesses and opined that

Dr. Cauley would not be a good fit with Northwell’s demanding and exacting

culture.44 Dr. Cauley was ultimately not hired by Northwell.45

Dr. Cauley unsuccessfully sought employment at two more health care

facilities before he applied for a position with Tufts Medical Center in Boston,

Massachusetts (“Tufts”).46 Dr. Cauley received a contingent offer of employment

from Tufts, but was required to provide a reference as part of the credentialing

process.47 Dr. Cauley had listed Dr. Millar as a reference, but Tufts was unable to

contact Dr. Millar.48 Dr. Cauley also listed Christopher G. Filippi, M.D.,49 then the

chairman of radiology at Tufts, as a reference.50

Dr. Filippi contacted Dr. Patel through LinkedIn to inquire about his opinion

of Dr. Cauley, and Dr. Patel called Dr. Filippi to discuss the matter.51 Although the

conversation regarded Dr. Cauley, Dr. Patel could not remember what was said

during the conversation except that, under the circumstances, he knew he “would

44 Doc. 85 ¶¶ 5, 30.

45 Id. ¶ 32.

46 Doc. 75 ¶¶ 15-17.

47 Doc. 85 ¶¶ 34-35; Doc. 89 ¶ 34.

48 Id. ¶ 18.

49 Geisinger spells Dr. Filippi’s name “Fillippi” while Dr. Cauley spells his name “Filippi.” The

available record does not permit the Court to discern which is the correct spelling, so the Court

utilizes the spelling used in his deposition transcript—Dr. Filippi. See Doc. 77-13.

50 Doc. 85 ¶ 36.

51 Id. ¶¶ 40-41.

not be able to discuss” specifics as to Dr. Cauley’s employment.52 Dr. Patel did not

forward this request for a reference to anyone else at Geisinger.53

At some point after the conversation with Dr. Patel, Dr. Filippi called Dr.

Cauley and urged him to withdraw his employment application with Tufts.54 Dr.

Filippi did so because Tufts had not secured a reference related to Dr. Cauley’s

employment as Geisinger and, absent such a reference, Tufts was likely to report Dr.

Cauley to the physician database.55 Dr. Filippi confirms that he never spoke with

anyone at Geisinger regarding Dr. Cauley’s resignation from Geisinger, had no

knowledge of any peer review involving Dr. Cauley, and had no knowledge that

Geisinger employees were purportedly not permitted to act as a reference for Dr.

Cauley.56 Dr. Cauley eventually withdrew his application to Tufts.57

Although the parties dispute whether Geisinger honored its alleged obligation

to provide only a neutral reference,58 there is no dispute that Geisinger fulfilled the

requirement that it not report Dr. Cauley to the NPDB.59 Moreover, while the

evidence is undisputed that Dr. Cauley never actually examined the peer reviews

52 Id. ¶ 42; Doc. 87-6 at 24.

53 Doc. 89 ¶ 46.

54 Doc. 75 ¶ 19.

55 Doc. 77-13 at 4-5.

56 Id. at 5-7.

57 Doc. 75 ¶ 21.

58 Compare id. ¶ 29, with Doc. 84 ¶ 29.

59 Doc. 75 ¶ 28. Dr. Cauley also does not appear to argue that Geisinger included anything in his

personnel file related to the peer reviews or negative references. See Docs. 21, 84.

prior to this litigation, the evidence establishes that Geisinger provided Dr. Cauley

such opportunities, but he did not avail himself to those opportunities.60

C. Analysis

1. Breach of Contract

Geisinger first argues that it is entitled to summary judgment as to Dr.

Cauley’s breach of contract claim because it provided no adverse employment

references to Dr. Cauley’s prospective employers, and provided him with several

opportunities to inspect the peer reviews.61 Dr. Cauley contests both assertions.62

60 Id. ¶ 30. Dr. Cauley contests this fact, and argues that he was provided no opportunities to

examine the peer reviews. Doc. 86 ¶ 30. However, the evidence to which Dr. Cauley cites to

support his denial does provide any factual support for his assertion. See id. (citing Doc. 85 ¶¶

16-23). Rather this evidence simply reinforces the undisputed notion that Dr. Cauley did not

actually examine the peer reviews prior to receiving them in discovery. In contrast, Geisinger

points toward Dr. Patel’s unrefuted testimony that a meeting had been arranged for Dr. Cauley

to examine the peer reviews, but Dr. Cauley “never showed up.” Doc. 77-4 at 12. Geisinger

further references the declaration of Cindy Sheridan, a legal officer for Geisinger, who states

that Dr. Cauley was twice offered the opportunity to inspect the peer reviews, but “declined

those offers.” Doc. 77-17. To contradict this evidence, Dr. Cauley cites his own deposition

testimony wherein he apparently denied having ever been presented such an opportunity. Doc.

84 at 20. However, the pages of the deposition transcript to which Dr. Cauley cites to support

his assertion, see Doc. 84 at 20 (citing Dr. Cauley Deposition Transcript at 122-125, 135-136,

and 145-147), were not provided to the Court by Dr. Cauley or Geisinger. See Docs. 77-3, 87-

2, 91-2. Of course, providing this evidence was not Geisinger’s responsibility. In the absence

of any evidence supporting Dr. Cauley’s assertion in his briefing, the Court cannot conclude

that even he disputed in his deposition that he was provided the opportunity to review the peer

reviews. Consequently, the undisputed evidence demonstrates that Geisinger made the peer

reviews available to Dr. Cauley.

61 Doc. 82 at 12-17. Geisinger also notes that Dr. Cauley cannot sustain this claim on the ground

that Geisinger reported him to the NPDB. Id. at 18. Since it is uncontested that Geisinger did

not report Dr. Cauley to the NPDB, the Court agrees that this portion of the agreement may

not form the basis of any breach of contract claim. Doc. 75 ¶ 28; Doc. 86 ¶ 28.

62 Doc. 84 at 18-25.

Three elements are necessary to establish a claim for breach of contract under

Pennsylvania law: “(1) the existence of a contract, including its essential terms; (2)

a breach of the contract; and (3) resultant damages.”63 For purposes of its motion for

summary judgment, Geisinger does not contest that a contract existed, or even that

damages may have resulted from any purported breach of that contract.64 The

relevant question, therefore, is whether Geisinger breached any of the terms of the

alleged contract. The evidence establishes that it did not.

First, while Dr. Cauley asserts that Geisinger refused him the opportunity to

inspect the peer reviews, as noted in the factual discussion, the undisputed evidence

demonstrates that Geisinger provided him with opportunities to view the peer

reviews, but he declined those opportunities.65 Dr. Cauley points to no direct

evidence that he was not provided with opportunities to examine the peer reviews,66

and the circumstantial evidence to which he cites—that Drs. Patel and Mongeluzzo

“could not identify a single instance of which they were aware that Dr. Cauley was

63 Doe v. Univ. of Scis., 961 F.3d 203, 211 (3d Cir. 2020) (quoting Meyer, Darragh, Buckler,

Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa.

2016) (brackets omitted)).

64 See Doc. 82 at 12-17.

65 Doc. 75 ¶ 30.

66 Again, although Dr. Cauley points to certain portions of his deposition testimony as supposedly

supporting his assertion that he “testified that he was never provided an opportunity to review

the peer reviews until discovery in this litigation,” he has not provided the Court with the

deposition pages to which he cites, which is his burden. Doc. 84 at 20. The Court cannot accept

as fact an unsupported assertion made in a legal brief. See Versarge v. Twp. of Clinton N.J.,

984 F.2d 1359, 1370 (3d Cir. 1993) (“Statements made in briefs are not evidence of the facts

asserted” (brackets and internal quotation marks omitted)).

presented with the internal or external peer review” and were not aware that this was

a condition of Dr. Cauley’s resignation—does nothing but reinforce that Dr. Cauley

did not inspect the peer reviews, while saying nothing about whether he was afforded

the opportunity to so do.67

The agreement between Geisinger and Dr. Cauley required only that Dr.

Cauley “be permitted to meet for the peer review with” Dr. Mongeluzzo.68 The

evidence demonstrates that Geisinger provided such an opportunity. In light of the

undisputed evidence that Geisinger afforded opportunities for Dr. Cauley to examine

the peer reviews, no reasonable jury could conclude that Geisinger breached this

portion of the contract.

The Court turns then to the question of whether Geisinger breached its

obligation to provide only neutral references for Dr. Cauley. Dr. Cauley bases his

claim on two incidents. The first incident involved Dr. Millar and his conversation

with Dr. Chusid at Northwell, while the second incident is Dr. Patel’s conversation

with Dr. Filippi at Tufts.69

First, the event involving Dr. Millar cannot constitute a breach of any

agreement between Dr. Cauley and Geisinger.70 That event involved a phone call

67 Doc. 84 at 19-20.

68 Doc. 87-8 at 2.

69 See Doc. 84 at 21-24.

70 Doc. 84 at 21-24. The Court assumes, for purposes of this motion, that Dr. Millar’s statements

do not constitute a neutral reference, particularly his statement that Dr. Cauley would not be a

good fit for Northwell.

between Dr. Millar and Dr. Chusid, wherein Dr. Millar candidly spoke of both Dr.

Cauley’s strengths and weaknesses, and informed Dr. Chusid that Dr. Cauley would

not be a good fit with Northwell’s culture.71

The agreement with Geisinger, memorialized in an email exchange, required

that Geisinger provide a neutral reference for Dr. Cauley.72 Specifically, the

agreement provided that “[t]he Employer will only provide a neutral reference. For

any new potential employers that call before 9/30/2019, Geisinger will represent that

[Dr. Cauley] is an employee. After 9/30/2019, only dates of employment will be

provided.”73

The key word in that agreement as related to this motion is “Employer,” which

is undefined. Although the term is undefined in the agreement, Black’s Law

Dictionary defines “employer” as a person or entity “for whom someone works; esp.,

one who controls and directs a worker under an express or implied contract of hire

and who pays the worker’s salary or wages.”74 The problem for Dr. Cauley is that,

even before he left Geisinger, Dr. Millar was no longer his supervisor, as Dr. Millar

had transferred out of that role in July 2019.75 Because, both at the time that the

agreement was drafted and when the recommendation was given, Dr. Millar did not

71 Doc. 85 ¶¶ 5, 30.

72 Doc. 77-15 at 2.

73 Id.

74 Black’s Law Dictionary (11th ed. 2019).

75 Doc. 85 ¶¶ 5-6 (noting that Dr. Millar was Dr. Cauley’s direct supervisor until Dr. Mongeluzzo

assumed that role in July 2019).

control or direct Dr. Cauley and did not pay Dr. Cauley’s salary, he does not qualify

as Dr. Cauley’s employer, and Geisinger cannot legally be held responsible for his

statements.76

This is similar to the situation with which the United States Court of Federal

Claims was confronted in Rebish v. United States, where a former employee of the

United States Department of the Interior, Bureau of Reclamation, sued for breach of

contract claiming, in part, that his employer had breached an agreement to provide

only a neutral reference.77 That agreement stated that the employer would provide

the plaintiff “with a neutral reference that will be given by Ms. Elbe Hasse or her

identified successor.”78 The plaintiff thereafter applied to a number of jobs and listed

his former coworkers as references, but came to believe that those coworkers had

“disclosed negative information about him to” potential employers.79

Based on the plain language of the agreement, the Court of Federal Claims

determined that it “includes no language that obligates the Bureau to ensure that its

employees generally refer inquiries from third parties to [a specific employee] . . .

Nor does it include language prohibiting Bureau employees generally from

providing references in their personal capacities and not on behalf of the Bureau.”80

76 Cf. Monaco v. Limestone Veterinary Hosp., 152 F. Supp. 3d 253, 264 (D. Del. 2016)

(discrimination claim failed when evidence established that coworker gave negative reference

but the “reference was not given by, or on behalf of” the employer).

77 No. 14-1022C (PRO SE), 2017 WL 4784276 (Fed. Cl. Sept. 25, 2017).

78 Id. at *6.

79 Id. at *2-3.

80 Id. at *7.

Indeed, the evidence demonstrated that the plaintiff himself “specifically directed

third parties to other individuals at the Bureau for purposes of securing what he

expected would be positive references provided in their personal capacities.”81

Because the agreement “did not impose an obligation on the Bureau to

affirmatively prevent its employees from providing references (whether positive,

negative, or neutral) in their personal capacities,” the Bureau of Reclamation did not

breach the contract by virtue of its employees—the very individuals who the plaintiff

had listed as references—providing negative references to potential employers.82

Similarly, Dr. Cauley specifically chose as a reference Dr. Millar,83 who was

not Dr. Cauley’s supervisor even before Dr. Cauley departed Geisinger, was no

longer the director of neuroradiology, and could be best termed—if Dr. Cauley had

still been employed by Geisinger—as Dr. Cauley’s coworker. Geisinger did not

direct Northwell to Dr. Millar, and Dr. Millar does not appear to have been speaking

to Northwell in his official capacity as a Geisinger employee.

In fact, Geisinger fulfilled its obligation under the agreement by submitting a

letter to Northwell that listed Dr. Cauley’s dates of employment and noted that he

had exercised clinical privileges during his employment.84 And Geisinger took an

additional step to satisfy the agreement by informing its employees that all requests

81 Id.

82 Id. at *8.

83 See Doc. 87-2 at 24 (Dr. Cauley stating “I listed Bill Millar as my clinical reference”).

84 Doc. 75 ¶ 14; see Doc. 91-9 at 2.

for references should be directed to its human resources department.85 Similar to

Rebish, Dr. Cauley seems to believe “that the neutrality provision obligated

[Geisinger] to take steps to prevent its employees from giving negative references

while leaving them free to provide positive ones.”86 But that is not required by the

agreement here, and Geisinger cannot be held in breach based upon Dr. Millar’s

statements.87

That leaves only the possibility that Geisinger may have breached the

agreement through Dr. Patel’s conversation with Dr. Filippi at Tufts. However, there

is no evidence that Dr. Patel—who was the chairman of the radiology department

and would qualify as the employer under the agreement—provided anything other

than a neutral reference.

The undisputed facts establish that, after Dr. Filippi contacted Dr. Patel, the

two spoke by telephone.88 Dr. Patel could recall that the conversation involved

discussion of Dr. Cauley, but could remember no details of the conversation except

that, under the circumstances, he “would not be able to discuss” specifics regarding

85 Doc. 87-12 at 3.

86 Rebish, 2017 WL 4784276, at *7.

87 See id. at *8. See also Shimmin v. Dep’t of Just., 95 F. App’x 341, 342 (Fed. Cir. 2004)

(affirming determination that employer had not breached neutral reference provision of

settlement agreement because there was no “specific language prohibiting former co-workers

from discussing [appellant’s] previous INS employment in their personal capacity . . . [and]

the two former co-workers who talked with the OPM investigator were acting within their

personal capacity, not on behalf of the agency”).

88 Doc. 85 ¶¶ 40-41.

Dr. Cauley’s employment.89 While Dr. Cauley describes Dr. Patel’s lack of recall as

“convenient[],”90 the only disinterested party in this matter—Dr. Filippi—

unequivocally testified that he had no knowledge of Dr. Cauley’s resignation from

Geisinger, of any peer review involving Dr. Cauley, or that Geisinger employees

were purportedly not permitted to act as a reference for Dr. Cauley.91

Dr. Cauley points to a number of circumstantial facts that he maintains are

sufficient to establish that Dr. Patel provided a negative reference to Dr. Filippi. He

observes that Dr. Patel: (1) spoke with Dr. Filippi; (2) believed that Dr. Cauley

should be reported to the NPDB and was so concerned with Dr. Cauley’s work that

he would not want Dr. Cauley to treat a member of his family; and (3) made

Geisinger’s legal department aware of the reference request although Geisinger

never provided a reference to Tufts.92 And, of course, Dr. Cauley was later asked to

withdraw his application to Tufts.93

But these facts raise, at most, only the faintest of suspicions that perhaps Dr.

Patel issued a negative reference. However, such suspicions fall far short of

demonstrating that Geisinger issued something other than a neutral reference given

89 Id. ¶ 42; Doc. 87-6 at 24.

90 Doc. 84 at 23.

91 Doc. 77-13 at 5-7.

92 Doc. 84 at 23.

93 Id.

Dr. Filippi’s uncontroverted testimony that he knew nothing of the difficulties that

Dr. Cauley had experienced during the end of his tenure at Geisinger.94

This is particularly so because Dr. Filippi had no reason to prevaricate with

respect to this information; to the contrary, Dr. Filippi had previously been Dr.

Cauley’s clinical supervisor and, according to Dr. Cauley, agreed to serve as a

reference for Dr. Cauley during his application to Tufts.95 And of equal importance,

Dr. Filippi urged Dr. Cauley to withdraw his application to Tufts not because of the

conversation with Dr. Patel, but because Tufts would have reported Dr. Cauley to

the NPDB, and Dr. Filippi “felt sympathetic” and wanted to avoid having that

happen to Dr. Cauley.96

Given this evidence, the Court cannot conclude that there is any genuine issue

of fact as to whether Dr. Patel, and therefore Geisinger, issued something other than

a neutral reference for Dr. Cauley. In fact, there is simply no evidence that Geisinger

issued a negative reference, at all. Because there is no genuine dispute that Geisinger

did not breach its agreement with Dr. Cauley, his breach of contract claim fails, and

Geisinger is entitled to judgment in its favor as to this claim.97

94 Doc. 77-13 at 5-7.

95 Doc. 85 ¶¶ 37-38.

96 Doc. 77-13 at 4-5.

97 The Court also questions whether the facts establish any damages, given that Dr. Cauley was

able to immediately obtain employment, but quickly resigned from that position of his own

volition. Doc. 75 ¶ 11; Doc. 86 ¶ 11.

2. Promissory Estoppel

Finally, the Court turns to Dr. Cauley’s promissory estoppel claim. Under

Pennsylvania law, to establish a claim for promissory estoppel the plaintiff must

demonstrate:

that “(1) the promisor made a promise that he should have reasonably

expected to induce action or forbearance on the part of the promisee;

(2) the promisee actually took action or refrained from taking action in

reliance on the promise; and (3) injustice can be avoided only by

enforcing the promise.”98

“These factors are strictly enforced to guard against the loose application of

promissory estoppel.”99 As these elements make clear, for a claim of promissory

estoppel to proceed, “some promise by a promisor [must be] broken.”100

Again, Dr. Cauley’s claim fails as a matter of law, for similar reasons as those

that doom his breach of contract claim. Even if there were no underlying contract,

and the agreement between Geisinger and Dr. Cauley constituted a mere promise on

Geisinger’s part, there is no evidence that Geisinger breached that promise. As

discussed above, the evidence establishes that Geisinger provided Dr. Cauley with

opportunities to examine the peer reviews, and Dr. Cauley has failed to establish that

Geisinger ever offered anything other than a neutral reference.

98 Cornell Narberth, LLC v. Borough of Narberth, 167 A.3d 228, 239 (Pa. Commw. Ct. 2017)

(quoting Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000)).

99 Id. (internal quotation marks omitted).

100 C & K Petroleum Prod., Inc. v. Equibank, 839 F.2d 188, 192 (3d Cir. 1988).

Because Geisinger did not break any promise made to Dr. Cauley, Dr. Cauley

has failed to establish the necessary requirements for a promissory estoppel claim.

The Court will therefore grant summary judgment in Geisinger’s favor as to this

count.

III. CONCLUSION

For the foregoing reasons, the Court will grant Geisinger’s motion for

summary judgment.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge