Opinion
CIVIL ACTION No. 01-2358-CM
September 3, 2003
MEMORANDUM AND ORDER
Pending before the court is defendant's Motion for Summary Judgment (Doc. 51) and defendant' Motion to Exclude Evidence (Doc. 48). Plaintiff brings claims against defendant for breach of contract, gende discrimination, and retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment on each of plaintiff's claims. Defendant also asks the court to exclude expert testimony plaintiff intends to offer regarding her diagnosis of breast cancer subsequent to he termination. Based on the reasons set forth below, defendant's Motion for Summary Judgment is granted in part and denied in part, and defendant's Motion to Exclude Evidence is granted.
The court construes the facts in the light most favorable to plaintiff as the non-moving party pursuant to Fed.R.Civ.P. 56. Plaintiff has provided the court with an affidavit which contradicts many facts asserted by defendant. However, plaintiff does not disclose the means of her personal knowledge of certain facts. Cf. Fed.R.Civ.P. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits . . . must set forth specific facts showing that there is a genuine issue for trial."). The court will therefore exclude from consideration those factual contentions which contain no support in the record. See H.B. Zachry Co. v. O'Brien, 378 F.2d 423, 425 (10th Cir. 1967) (conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment). Additionally, plaintiff's affidavit contradicts certain portions of her deposition testimony. The court will not consider those facts alleged in the affidavit which directly contradict testimony given in plaintiff's deposition. See Rios v. Bigler, 847 F. Supp. 1538, 1546 (D. Kan. 1994). Finally, the parties have provided a comprehensive record for the court's review. The court has examined all of the facts alleged, but includes herein only a summary of the facts relevant to the court's analysis.
On October 28, 1996, following negotiations with Dr. Flynn O'Malley, plaintiff was offered a position as Director of Menninger Geriatric Services. On November 6, 1996, plaintiff accepted the position. Dr. O'Malley and plaintiff negotiated, but never finally decided upon, plaintiffs clinical responsibilities in her new position. Plaintiff's understanding of her clinical responsibilities was that she and Dr. O'Malley, or his representative, would mutually agree on specific duties. Dr. O'Malley's understanding was that defendant and plaintiff would agree as to a general amount and kind of work, but that plaintiff did not have a veto power if she did not like her assignment. Plaintiff remained employed by defendant at the Menninger Stormont campus until she was terminated in October 1998.
During plaintiff's tenure with defendant, she dealt closely with Nadine Dexter, the Program Director of Menninger Stormont. Ms. Dexter was responsible for hiring and firing non-physician staff, developing programs, budgeting, regulatory compliance, and enforcement of policies and procedures. Plaintiff also worked closely with Dr. Miguel Stamati, the Medical Director of Menninger Stormont. In fact, in late 1997 or early 1998, Dr. O'Malley made Dr. Stamati plaintiff's supervisor.
Part of plaintiff's expectation in her employment was that defendant would provide her with 50% of a secretary's time, a physician extender, and dictationsupport. Plaintiff claims that none of these expectations was met during her employment. Plaintiff claims that her only secretarial support was 10% of one secretary's time. Defendant claims that each of the psychiatrists in plaintiff's department shared the resources of two secretaries. Plaintiff sets forth no facts controverting this statement. It is also uncontroverted that plaintiff had a secretary of her own at the beginning of her employment, but that secretary quit. By the end of plaintiff's employment, she had hired secretarial support out of her own pocket. As for the physician extender and dictation support, defendant claims that plaintiff was not creating the need for such support because she was not seeing the volume of patients defendant expected her to see. Plaintiff claims that some support was offered to her, but that the nurse practitioner did not respond to the necessary protocol for plaintiff to teach her. Plaintiff further claims that dictation support was given to Dr. Stamati and Dr. Mohsen Amiri, who are both male, but not given to plaintiff.
When plaintiff began working for defendant, she was informed that defendant's needs had changed and, thus, her position had been altered. While plaintiff had accepted the position of Director of Menninger Geriatric Services over all of defendant's systems, her actual position was Director of Menninger Geriatric Services over only the Stormont-Vail campus. Plaintiff's employment began with a six-month probationary period, during which, defendant states, defendant had problems with plaintiff. Plaintiff claims she was never informed that any problems existed. Dr. Efraim Blieberg, defendant's president, testified that he received reports during plaintiff's probationary period that co-workers, staff and patients had complained about plaintiff's services and responsiveness. In any event, plaintiff successfully completed the probationary period. Following the probationary period, Dr. Blieberg testified, he continued to hear complaints about plaintiff that patients were requesting to see other physicians, rather than plaintiff, that support staff reported unprofessional behavior and emotional outbursts, and that plaintiff did not spend adequate time assessing and documenting patients' issues. Ms. Dexter and Dr. Stamati each testified that they felt plaintiff was difficult from almost the beginning of her employment. Dr. Stamati spoke to Dr. O'Malley many times about terminating plaintiff's employment; Dr. O'Malley testified that he considered terminating plaintiff even during her first six months. However, Dr. O'Malley, Dr. Stamati and Ms. Dexter wanted to avoid terminating plaintiff's employment.
Plaintiff claims that she was never warned that her position was in jeopardy or that others complained about her. However, it is uncontroverted that throughout the second six months of plaintiff's employment and in August of 1998, defendant received numerous reports that plaintiff's working relationships were very poor. Defendant received reports that plaintiff was not returning pages, was having trouble with other physicians in the hospital, continued to have emotional outbursts, and that she yelled at Dr. Stamati when he was speaking to another physician. Finally, in August 1998, defendant received complaints that plaintiff was unable to relate to patient needs, that she made corrections to another physician's reports, that she made coding errors related to billing, that she had a negative impact on business interests because she refused to respond to referrals, and that her emotional outbursts and behavioral problems seemed to be getting worse. In addition, Ms. Dexter testified that staff called her at home while she was off duty because of problems with plaintiff. During plaintiff's employment, there were between 200 and 300 complaints filed against her with a small percentage related to clinical issues.
Plaintiff claims she was never informed of any complaints. However, the record is replete with complaints from staff to Dr. O'Malley, Dr. Stamati, and Ms. Dexter regarding plaintiff. Staff complaints included allegations that plaintiff arrived late to meetings and lectured the staff, that plaintiff made her team feel that their opinions did not count, and that plaintiff was unloading her responsibilities onto support staff. The record also contains communications between Ms. Dexter, Dr. Stamati, Dr. O'Malley and plaintiff regarding certain complaints. An undated e-mail from Dr. Stamati to plaintiff in response to an e-mail sent by plaintiff to Dr. Stamati on May 1, 1998, lists several of the complaints outlined above and states, "Yes, this letter is hosfile indeed, I've had it." (O'Malley Dep. Ex. 17). One portion of this e-mail reads:
You have managed to alienate a good part of the staff you work with on a daily basis. You don't seem to have a clue of the shame and anger you evoke in the staff you work with. Every day I hear a new incident. I have been trying to support and encourage you in your work. I have tried to erase myself from 6W to facilitate your integration, I have met with you several times. The day after we have a talk, you get involved in a new conflict.
With all this above, I wonder: what are you planning to do with all this time and credentials that you have? I feel I don't have a colleague. I don't need you to create new forms. I have an entitled Prima Donna who is impulsive, often loud and perceived as "out of control" by staff and, despite my attempts to sit and reason with her, unwilling to accomodate [sic] to the environment. I am really getting tired of trying, Julie . . . The problem may be condensed into a single question: Can we work together?Id.
Defendant claims that plaintiff's billing records reflect that she was not producing up to her expected percentage a good part of the time. While plaintiff denies that this was the case, she has produced nothing but her own conclusory statements to controvert defendant's assertion. Following plaintiff's termination, defendant conducted an audit of plaintiff's billings and threw out thousands of dollars of billings because plaintiff's documentation did not fit the coding. Plaintiff claims she had no problems with coding errors.
Plaintiff claims that male psychiatrists were not reported or censured for similar problems. Plaintiff believes that the nursing staff would not have complained about plaintiff if she were male, and also believes the nursing staff would have followed her orders if she were male. Plaintiff was ultimately subjected to peer review regarding the numerous complaints. Plaintiff does not believe she would have been subjected to this quality review if she were male. Plaintiff also believes she was subjected to this review for failure to resolve a crisis that should have been the nursing staffs responsibility.
Defendant had a progressive discipline policy in place that allowed for verbal and written warnings prior to termination. Plaintiff claims she received neither verbal nor written warnings; she believes these actions would not have been omitted if she were male.
Following a team meeting in early October 1998, Dr. Stamati met with members of plaintiff's team outside of her presence. Plaintiff informed Dr. Stamati that she felt he had undermined her authority by meeting with her team, but the purpose of the meeting appears to have been to discuss the team's problems with plaintiff. Members of the team reported to Dr. Stamanti that plaintiff was out of control and frightening during the team meeting. It was after Dr. Stamati's conversation with plaintiff's team that Dr. Stamati and Ms. Dexter told Dr. O'Malley that the department could not work with plaintiff anymore. Dr. Stamati and Ms. Dexter met with plaintiff on October 9, 1998, to discuss their concerns.
On October 14, 1998, Dr. O'Malley sent a letter to plaintiff which terminated plaintiff's employment, effective October 21, 1998. Dr. O'Malley stated that he and other members of management had directly expressed to plaintiff their concerns regarding her job performance, but that plaintiff's problems had been exacerbated in the recent months. Dr. O'Malley outlined several problems, which included poor relationships with staff, explosive behavior, patient complaints, and irregularities in documentation of patient records. (O'Malley Dep. Ex. 23).
Following her termination, plaintiff requested a review by defendant's internal review panel. Plaintiff claims she was entitled to receive a copy of any report that the panel created, but that she never received such a report. She attributes this to her gender and also states it as a basis for her breach of contract claim.
II. Standards
Summaryjudgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id.
Finally, the court notes that summary judgment is not a "disfavored procedural shortcut," rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
III. Gender Discrimination Claims
Plaintiff concedes that she has no direct evidence of discrimination, so the court must proceed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973).
A. McDonnell Douglas Burden-Shifting Analysis
In employment discrimination cases where, as here, a plaintiff cannot prove direct discrimination, the court applies the burden-shifting framework set forth in McDonnell Douglas to determine whether summary judgment is appropriate. 411 U.S. at 793.
Under the McDonnell Douglas test, plaintiff bears the initial burden of establishing a prima facie case of gender discrimination. Id. at 802. The burden then shifts to defendant to articulate some legitimate, nondiscriminatory reason for terminating plaintiff's employment. Id. The burden then reverts to plaintiff "to show that there is a genuine dispute of material fact as to whether [defendant's] proffered reason for the challenged action is pretextual — i.e., unworthy of belief." Marx v. Schnuck Mkts., Inc., 16 F.3d 324, 327 (10th Cir. 1996). "Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal citations omitted). However, "[m]ere conjecture that [defendants'] explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Id. (citing Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
In her Response to Defendant's Motion for Summary Judgment, plaintiff attempts to controvert facts simply by stating that those facts are pretextual. As stated above, this type of conclusory denial is insufficient to create a question of material fact.
A. Disparate Treatment Claim
When alleging disparate treatment on the basis of sex, the plaintiff must prove by a preponderance of the evidence that the defendant had a discriminatory motive or intent. Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir. 1993) (citation omitted). Under McDonnell Douglas, plaintiff bears the initial burden of establishing a prima facie case of sex discrimination by a preponderance of the evidence. To satisfy this burden, plaintiff must show that "(1) she is a member of the class protected by the statute; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class." Mitani v. IHC Health Servs., Inc., 53 Fed. Appx. 48, 50-51 (10th Cir. 2002) (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998)).
The parties agree that plaintiff is a member of a protected class. The parties also agree that plaintiff's education and accomplishments qualified her for her position. Although the parties agree that plaintiff suffered an adverse employment action, in that her employment was terminated, plaintiff also claims she suffered other adverse treatment while working for defendant. The court will independently analyze whether these additional claims amount to adverse employment actions. Finally, the parties disagree regarding whether plaintiff was treated less favorably than others not in the protected class.
1. Adverse Employment Action
In addition to her termination, plaintiff claims she suffered adverse employment actions throughout her employment with defendant. Instances of these adverse actions include defendant's alleged failure to provide plaintiff with adequate secretarial support and defendant's alleged failure to provide adequate dictation and physician extender support to plaintiff. Plaintiff also seems to allege that her fellow employees did not make similar complaints about plaintiff's male colleagues as those made about plaintiff.
Plaintiff states that "the male psychiatrists were not subjected to complaints about their conduct." (Pl. Mem. at 26). Plaintiff seems to argue that complaints would not have been made against male psychiatrists. Plaintiff states that a patient's family's complaint about her was reported, while a similar complaint about Dr. Stamati was not reported. There is no factual basis in the record to support this allegation or the general allegation that male psychiatrists were not subjected to complaints. Moreover, there is no evidence in the record regarding any activities by plaintiff's male colleagues that might have warranted complaints. Plaintiff also seems to argue that the nursing staff treated her differently than her male counterparts. There is no evidence to support this contention. Even if there were such evidence, however, the court can find no cases in this district holding that discriminatory conduct by a subordinate employee is actionable. Moreover, there is no evidence that defendant acquiesced in any discriminatory activity of the nursing staff. Therefore, the court concludes that these allegations do not raise a question of material fact.
The court concludes that even if these actions occurred, they did not affect plaintiff's job status and are, therefore, not adverse employment actions. See Sanchez, 164 F.3d at 533 ("Although we appreciate Ms. Sanchez's distress over [her supervisor's] alleged disagreeable conduct, that conduct did not significantly affect her employment status and therefore did not constitute adverse employment action remediable under Title VII."). Absent some evidence that plaintiff's job status was negatively impacted by these alleged actions, the court will not expand the scope of adverse employment actions to include the types of actions alleged by plaintiff in this case. Summary judgment is therefore granted in favor of defendant on plaintiff's claims regarding disparate treatment other than her termination. See Kennedy v. Gen. Motors Corp., 226 F. Supp.2d 1257, 1268-69 (D. Kan. 2002).
The court notes that any lack of support might have been relevant if it contributed to a performance problem which led to termination. However, plaintiff claims she had no performance problems. Plaintiff denies that her productivity was below what defendant asked ofher, and she further denies that she had any problems with her coding or file management. Further, the record shows that a small percentage of the complaints about plaintiff were performance-based. Plaintiff has presented no evidence that her explosive behavior and trouble relating to patients and staff were impacted by any alleged lack of support.
While these actions do not support a finding of adverse employment action, plaintiff's termination clearly does support such a finding. Therefore, the court next examines whether plaintiff's termination subjected her to less favorable treatment than similarly-situated male employees and whether a genuine factual dispute exists as to defendant's motivation for plaintiff's termination.
2. Less Favorable Treatment
Plaintiff claims that she was subjected to complaints and peer review — and ultimately fired — because she is female. To establish a prima facie case of discrimination in this context, plaintiff must prove that similarly-situated male employees who engaged in similar conduct as plaintiff were treated differently than she. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir. 1988). The primary issue under this element is whether the adverse employment action occurred "under circumstances which give rise to an inference of unlawful discrimination." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The court begins by pointing out that plaintiff has not shown by a preponderance of the evidence that Dr. Stamati — the target of many of her allegations of disparate treatment — is similarly situated to plaintiff. The record reflects that Dr. Stamati was plaintiff's superior, which might justify disparate treatment by defendant. However, the court will address those allegations involving Dr. Stamati under the assumption that he is similarly situated to plaintiff.
The record reflects that defendant's staff, patients, and patients' families lodged numerous complaints regarding plaintiff. Staff members complained that plaintiff did not relate well to them and made them feel devalued. Patients and their families complained that plaintiff did not relate well to them; these complaints included allegations that plaintiff did not look patients and their families in the eye when she addressed them. Finally, plaintiff's supervisors found that plaintiff's records were unintelligible and inaccurate and that plaintiff refused to perform duties when she was asked.
Plaintiff has submitted no evidence that similarly-situated male employees were treated differently when similar complaints were lodged against them. In fact, plaintiff states that the same complaints were not made against her male counterparts. Plaintiff asserts that the complaints against her would not have been made if she were male; yet, there is no factual support in the record for this conclusory assertion. It is clear from the record that plaintiff was the only psychiatrist in her unit who was subjected to peer review regarding complaints. However, there is no evidence in the record that any other psychiatrist in the unit had the volume of complaints that were lodged against plaintiff. Plaintiff also states that defendant did not follow its progressive policies in suspending and terminating her employment. However, there is no evidence that any of plaintiff's male colleagues were afforded any different process under similar circumstances. Absent evidence of how plaintiff's male counterparts were treated or evidence that a discriminatory animus motivated defendant's actions, the court cannot conclude that plaintiff was treated less favorably in her termination than other similarly-situated male employees.
Plaintiff admits that she believes she was subjected to peer review "because she did not solve a crisis that was a nursing responsibility to resolve." (Fact ¶ 116.) This does not appear to involve gender. Plaintiff does not allege that the nurses who should have resolved the crisis were male, nor does she present any evidence that her male counterparts were treated differently in a similar situation.
Plaintiff has made no showing that she was treated differently than similarly-situated male employees. Plaintiff has also made no showing that any discriminatory animus motivated defendant's actions. The court finds that plaintiff has failed to raise a question of material fact in her prima facie case of disparate treatment, and summary judgment is granted to defendant as to plaintiff's disparate treatment claim.
B. Retaliation Claim
Plaintiff alternatively argues that she was fired for voicing protected opposition to gender discrimination. Title VII prohibits an employer from discriminating against an employee because the employee "has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, the employee must prove: "(1) she engaged in a protected opposition to discrimination or participation in a proceeding arising out of the discrimination, (2) adverse action by the employer subsequent to the protected activity, and (3) a causal connection between the employee's activity and the adverse action." Griffith v. State of Colo., Div. of Youth Servs., 17 F.3d 1323, 1331 (10th Cir. 1994) (citation omitted).
1. Protected Activity
In order to establish that she engaged in protected activity under Title VII, plaintiff must show that she either participated in a Title VII investigation or opposed Title VII violations. See 42 U.S.C. § 2000e-3(a). Plaintiff contends that she opposed Title VII violations. The opposition clause "prohibits retaliation against an employee or applicant for employment because she 'opposed any practice made an unlawful employment practice'" by Title VII. Brower v. Runyon, 178 F.3d 1002, 1005 n. 3 (8th Cir. 1999) (quoting 42 U.S.C. § 2000e 3(a)). In order to allege protected activity, plaintiff must present evidence showing defendant knew that her concern or complaints related in some way to gender and that she claimed being discriminated against on that basis. Stahl v. Bd. of Comm'rs of Unified Gov't of Wyandotte County/Kan. City, Kan., 244 F. Supp.2d 1181 (D. Kan. 2003) (citation omitted).
Plaintiff claims she engaged in protected opposition of gender discrimination on three occasions, all involving e-mail. The first of these e-mails was sent on April 9, 1998. On that date, plaintiff sent an e-mail to Dr. Stamati regarding allocation of patients. The relevant portion of that e-mail reads as follows:
The purpose of the documentation is to record my perspective: when I had declined to accept a patient on the adult unit when my census was 9 on the gero unit, I was told that I could not do this despite a rational explanation of my reasons to decline the patient. I do not have a problem with the decision today, but I do have a problem with how it compares to my previous experience in a similar situation. I am not requesting any further action. However, I think it's important for us all to be aware of these scenarios.
(O'Malley Dep. Ex. 15).
Plaintiff's second allegedly-protected communication is an e-mail dated May 1, 1998. The e-mail is directed to Dr. Stamati and copied to Dr. O'Malley, Ms. Dexter, and Barbara Miles. That e-mail reads as follows:
Miguel, you indicated to me yesterday that you had alloted [sic] all of Kenn's and Paul's time previously to Mohsen to keep him happy. Thus I suggest at this point that your strategy change, as Mohsen is leaving this institution soon. Perhaps it is time to reward those who have demonstrated their loyalty to Menninger and its program development and reallocate that dictation time to us. I have been here 10 months, no one has dictated any charts for me. Mohsen is one year out of residency; I am seven years out of residency and board-certified in both adult and geriatric psychiatry, with three years of nationally-funded fellowships and the network that that provides to build programs and institutional reputation. I think that deserves some consideration. I do not feel that my talents and skills are utilized at the level to which I have developed them through very demanding prices which I have paid for them. Perhaps youneed to think again about who it is that efforts should enacted [sic] to keep happy.
(O'Malley Dep. Ex. 17) (emphasis in original).
Plaintiff's final allegedly-protected communication was an e-mail she sent to Ms. Dexter, and copied to Dr. Stamati, on October 8, 1998. That e-mail reads, in relevant part:
Now when I am attempting to resume operations, I again feel I do not have much support here. My authority is not supported but instead is repetitively undermined intentionally, unintentionally, or subconsciously. This subverts the very development of relationships that you and Miguel would claim to like see occur. I feel attacked continually either directly or indirectly based on evidence I see, whereas I feel that any deficiencies in my colleagues are not only accepted, but not even addressed for improvement. Not only is this unfair, but it delays any changes you might wish to see from me who becomes [sic] distracted by this disproportionate focus.
(Stamati Dep. Ex. 26).
In none of these e-mails does plaintiff mention gender. In fact, these e-mails contain no references to discrimination of any kind. Plaintiff references the requirements of her contract, the role of nurses and other support staff below her rank, and the comparative levels of experience of plaintiff and her colleagues. Plaintiff has produced no evidence that defendant knew or should have known that her complaints related to gender. Therefore, because plaintiff's complaints resounded in rank, experience and contract issues, the court finds that plaintiff has not created a question of material fact at the prima facie stage of her retaliation claim. Summary judgment is therefore granted in favor of defendant on that claim.
As noted in footnote 2, Dr. Stamati admits that plaintiff stated the nurses treated her differently than her colleagues, and that plaintiff implied this disparate treatment was based on gender — because of the "dynamics" of the relationship between the nurses (who were 90% female) and a female psychiatrist. Plaintiff does not allege that this implication was protected activity. Even if plaintiff alleged that this implication was protected activity, the court finds that a blanket implication — that the nurses (who were plaintiff's subordinates) gave plaintiff less favorable treatment because of different relationship dynamics — does not show that plaintiff believed in good faith that the nursing staff was violating Title VII. See Mitchell v. Viser, 529 F. Supp. 1034, 1043-44 (D. Kan. 1981) (citing Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980)). Moreover, plaintiff presents no evidence regarding the specifics of that implication, so it would be impossible for the court to determine that a causal connection exists between the implication and plaintiff's termination.
Based on the court's conclusion that plaintiff has failed to create a question of fact at the prima facie stage, it is not necessary to address pretext. However, the court notes that defendant did not replace plaintiff following her termination. While defendant did later hire a male clinician, plaintiff's duties as Medical Director of Geriatric Psychiatry were reassigned to other employees, including Dr. Stamati. Dr. Stamati served as the overall Medical Director; the position of Medical Director of Geriatric Psychiatry was eliminated. Since plaintiff's position was eliminated, plaintiff has not shown that she was treated less favorably than male employees in the decision to terminate her employment. See Myers v. Colgate-Palmolive Co., 102 F. Supp.2d 1208, 1217 (D. Kan. 2000), aff'd, 26 Fed. Appx. 855 (10th Cir. 2003); see also McMahen v. Gaffey, Inc., 52 Fed. Appx. 90, *2 (10th Cir. 2002) (citations omitted) (spreading the former duties of a terminated employee among the remaining employees does not constitute replacement). The court concludes that defendant has preferred legitimate reasons for terminating plaintiff's employment — her emotional outbursts, her failure to relate to staff and patients, and her refusal to perform certain duties — and that plaintiff has produced no evidence of pretext.
VI. Breach of Contract Claims
In order to establish a breach of contract claim, plaintiff must show 1) the existence of a contract, 2) sufficient consideration, 3) plaintiffs performance, 4) defendant's breach of the contract, and 5) damages caused by the breach. ORI, Inc., v. Lanewala, 147 F. Supp.2d 1069, 1078 (D. Kan. 2001). In this case, plaintiff claims that defendant breached animplied-in-fact contract with plaintiff. Defendant claims that plaintiff was employed at will and had no contractual expectation of continued employment. Plaintiff also claims that, during her employment, defendant did not provide plaintiff the support it was contractually obligated to provide (e.g., secretarial support, dictator and physician extender support) and altered her job description and job requirements. Defendant claims it provided plaintiff with all of the support to which she was entitled and, further, claims that plaintiff suffered no damage from any lack of administrative support.
In the Pretrial Order, plaintiff only preserved the issue of damages for breach of contract with respect to her termination. However, plaintiff argues, and the court agrees, that a jury could determine that a breach of contract regarding administrative support led to plaintiff's poor performance and contributed to her eventual termination. Therefore, the court considers all of plaintiff's breach of contract claims.
Plaintiff argues that, in addition to the lack of promised administrative support, defendant failed to follow its internal policies in terminating her employment. Plaintiff also claims that she had an expectation of employment for the full period of her appointment to defendant's staff. Defendant claims that the documents relied upon by plaintiff clearly show that plaintiff was an at-will employee. The question of whether an implied contract exists under Kansas law is typically a question of fact for the jury. Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 537 (10th Cir. 1995). "The existence of an implied contract depends on the intent of the parties, devined from the totality of the circumstances." Id. Because an inquiry into the intent of the parties would involve examining the written and oral negotiations, conduct of the parties, the nature of plaintiff's employment, and other circumstances that explain the parties' intent, this inquiry would be factual. The court concludes that questions of material fact exist regarding the intent of plaintiff and defendant in entering into plaintiff's employment agreement. Because there exist questions of fact as to whether an implied-in-fact contract existed, the court concludes that summaryjudgment would not be an appropriate dispositionofplaintiff sbreach of contract claim. Summary judgment is therefore denied as to that claim.
VII. Defendant's Motion to Exclude Evidence
Defendant also asks the court to exclude plaintiff's testimony regarding one aspect of the damages she alleges. Regarding her Title VII claim, plaintiff seeks compensatory damages under 42 U.S.C. § 1981 (a). Plaintiff was diagnosed with breast cancer in November 2001, three years after defendant terminated her employment. Plaintiff alleges that "the manner in which [her] termination occurred . . . put [plaintiff] in a very tenuous situation that resulted in tremendous stress in [plaintiff's] life." (Rentier Dep. at 13). The plaintiff further testified that "there is a relationship between severe, long-term stress and the development of breast cancer." ( Id. at 22).
The court begins by noting that plaintiff has only preserved this issue as regards her Title VII claim; she does not allege that this evidence would be relevant to her breach of contract claim. Therefore, under the court's ruling on defendant's Motion for Summary Judgment, the court grants defendant's Motion to Exclude Evidence. However, even if plaintiff had pled this particular allegation as a basis for damages in her breach of contract claim, the court would still grant defendant's Motion to Exclude Evidence.
Defendant moves to exclude plaintiff's testimony that "there is a relationship between severe, long-term stress and the development of breast cancer" on the grounds that plaintiff's testimony does not meet the requirements for admission of expert testimony set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 591 (1993). Defendant claims that plaintiff's testimony is neither relevant nor reliable. Plaintiff counters that she does not claim to be an expert in oncology, but that she is qualified to review medical literature and testify as to her knowledge obtained through that literature. Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R.Evid. 702. Under this rule, the court examines whether the expert is initially qualified to give the opinion proposed and whether the opinion expressed meets the requirements of Daubert that it "rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 591. This evaluation, commonly referred to as the court's "gate-keeping" function, extends not only to scientific testimony, but also to technical and other specialized testimony. See Kumho Tire. Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
As to the relevancy of plaintiff's proposed testimony, the court concludes that the testimony would not substantially aid the jury in determining a fact in issue because the testimony is not sufficiently tied to the particular facts of this case, especially since plaintiff has not alleged emotional damages of any kind. Plaintiff seeks damages for lost wages for the time she missed from a subsequent job while she was undergoing cancer treatments. Plaintiff does not allege that stress is the cause of her cancer. In fact, plaintiff admits that she cannot pinpoint the cause. Plaintiff only alleges that stress might be related to her cancer. Additionally, plaintiff does not allege that her termination was the only source of stress she suffered prior to her breast cancer diagnosis. In fact, plaintiff testified that the next job she took after defendant terminated her ended after only three months; plaintiff testified that the employment conditions and working relationships at that job were not correct. (Renner Dep. at 143). The court concludes that plaintiff has not shown sufficient facts to support a finding that her breast cancer diagnosis was connected to her termination, or that studies analyzing stress and breast cancer are relevant to the issue of damages in her breach of contract claim.
Plaintiff's proposed testimony also fails the reliability test. The literature upon which plaintiff bases her opinion consists solely of four abstracts of articles regarding studies of the relationship of stress to cancer. The abstracts appear to indicate that certain significant life events and emotional losses may be related to higher incidences of breast cancer. However, the abstracts also seem to indicate that other factors, including the psychological characteristics of the individual and the individual's response to stress, were evaluated in the studies. The court concludes the abstracts upon which plaintiff relies in forming her opinion do not satisfy the sufficiency of data requirement of Rule 702.
Moreover, it is important to note that plaintiff is not disinterested. This impacts the court's conclusion that her testimony may not be reliable. Plaintiff states that she "did go through the medical literature and try to find out the relationship of stress to long-term breast cancer, and [she] found some abstracts in the medical literature that suggest that long-term stress can result in a higher inciden[ce] of breast cancer." (Renner Dep. at 13). The court concludes that plaintiff's opinion and the literature upon which she bases that opinion were not derived by the scientific method required by Daubert. In order for this testimony to be reliable, the court concludes that it must have been based on "legitimate, preexisting research unrelated to the litigation" at hand. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (1995) (remanded from the Supreme Court's decision in Daubert). In this case, plaintiff clearly was not researching the relationship between stress and cancer independent of the litigation. Indeed, it appears plaintiff only conducted the research in connection with this litigation. The court concludes that plaintiff's testimony is neither relevant nor reliable. Defendant's Motion to Exclude Evidence is granted. IT IS THEREFORE ORDERED that defendant's Motion for Summary Judgment (Doc. 51) is granted in part and denied in part. Summary judgment is granted in favor of defendant as to plaintiff's Title VII discrimination and retaliation claims. Summary judgment is denied as to plaintiff's breach of contract claim. In addition. Defendant's Motion to Exclude Evidence (Doc. 48) is granted.