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Irani v. Palmetto Health

United States District Court, D. South Carolina, Columbia Division

July 1, 2011

Afraaz R. Irani, M.D., Plaintiff,
v.
Palmetto Health, University of South Carolina School of Medicine, David E. Koon, M.D., in his individual capacity, and John J. Walsh, M.D., in his individual capacity. Defendants.

          OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT, MOTION TO COMPEL, AND MOTION TO STRIKE ECF NOS. 136, 137, 139, 146, 175

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Through this action. Plaintiff Afraaz R. Irani, M.D., ("Plaintiff or "Dr. Irani") seeks relief relating to his treatment during and termination from an orthopaedic surgery medical residency program ("Residency Program" or "Program") and subsequent events related to that termination. Defendant Palmetto Health ("Palmetto Health") was the official sponsor of the Residency Program and operated the Program in affiliation with Defendant University of South Carolina School of Medicine ("USC-SOM") (collectively "Entity Defendants").[1]

         Defendant David E. Koon, Jr., M.D. ("Dr. Koon"), a member of the USC-SOM faculty, was the Program Director for the Residency Program at all times relevant to this action. Defendant John J. Walsh, IV, M.D. ("Dr. Walsh") was the Chair of the Orthopaedic Surgery Department at USC-SOM during the same period. Both Drs. Koon and Walsh are sued in their individual capacities (collectively "Individual Defendants").

         The matter is before the court on Defendants’ motions for summary judgment, ECF Nos. 136, 137, 139, and two related evidentiary motions.[2] For the reasons set forth below, Defendants’ motions for summary judgment are granted as to all causes of action, though not necessarily on all grounds argued. The two evidentiary motions are rendered moot by the summary judgment ruling.

         STANDARD

         Summary judgment should be granted 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." Fed.R.Civ.P. 56(a). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Rule 56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers or other materials; or
(b) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         A party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

         Therefore, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis v. National Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

         FACTS

         The following facts are presented in the light most favorable to Dr. Irani, the party opposing summary judgment.

         Dr. Irani Background.

         Dr. Irani, who was born and raised in California, is of Indian (or Indian and Iranian) descent and a member of the Zoroastrian faith. Irani decl. ¶ 2 (ECF No. 148-2); Charge of Discrimination, ECF No. 136-5 at 36. He received his undergraduate and medical degrees from Stanford University. Irani decl. ¶ 3.

         Selection for Residency Program.

         In the fall of 2009, Dr. Irani interviewed for the Orthopaedic Surgery Residency Program sponsored by Palmetto Health in affiliation with USC-SOM. Koon first aff. ¶ 7 (ECF No. 136-3); Walsh aff. ¶ 8 (ECF No. 136-4). Drs. Koon and Walsh participated in Dr. Irani’s interview, both rating Dr. Irani as one of the year’s top ten candidates. Id.; Interview Score Sheets. ECF No. 136-9 at 3, 4 (reflecting ratings of nine and ten on a ten-point scale). Two other physicians participated in the process: Dr. Guy placed Dr. Irani in the top ten or top third (indicating he "could go either way"); and Dr. Hoover placed Dr. Irani in the top third. ECF No. 136-9 at 1, 2. Based on these scores and his own preferences, Dr. Irani matched and accepted an offer for the Residency Program. Walsh aff. ¶ 8; Koon first aff. ¶ 7.

         PGY-1 Year. Dr. Irani began his first ("PGY-1") year in the five-year Residency Program in July 2010. Irani decl. ¶ 5; PGY-1 Resident Agreement of Appointment ("Resident Agreement") (ECF No. 136-5 at 4-10). The only other resident in the PGY-1year was Dr. Goodno, a Caucasian male. Irani decl. ¶¶ 5, 16, 75; Goodno dep. at 1, 25 (ECF No. 150-2).

         Dr. Irani received mixed ratings his first year. ECF No. 152-1 at 1-58 (individual evaluations); ECF No. 136-3 at 31-47 (summary report of evaluations). While most raters gave him "satisfactory" or better ratings, a few gave him marginal or unsatisfactory ratings in certain areas. Evaluation Summary, ECF No. 136-3 at 31. Comments were, likewise, mixed, with most being positive but some not. Id. at 32. Negative comments from at least five physicians (Drs. Jones, Bynoe, Mastriani, Ross, and Koon) included concerns about legibility of handwriting, inadequate sense of urgency or decorum, sarcasm and inappropriate use of humor, failing to demonstrate he was "completely invested in caring for patients, " a "lackadaisical" attitude toward the service, a need for improved motivation and people skills, and other similar concerns. Id. at 32, 35, 36, 40, 43.

         At least two raters (Drs. Jones and Bynoe) who gave negative comments early in the PGY-1 year noted improvement in later rotations, though one (Dr. Jones) stated Dr. Irani "still needs to take responsibility for total patient care[.] . . . I think his improvements are promising but he still has a lot of room for further improvement." Id. at 34, 36. Dr. Koon noted he had "spoken with Dr. Irani at length about his performance thus far in his internship. He needs significant improvement in several areas and he seems to understand these issues." Id. at 35. Dr. Irani himself later described his PGY-1 year as a rocky start. See Grievance Committee Hearing Transcript ("Hearing trans.") at 82 (ECF No. 150-1 at 83).

         Dr. Koon Comment about Residents in Other Programs.

         In December 2010, Dr. Koon commented to Dr. Irani that the Orthopaedic Surgery Department generally had the best residents and had high expectations for those residents. Irani decl. ¶ 9. Comparing residents in different departments, Dr. Koon added one department was "just happy to have someone who can speak English." Id.; but see Hearing trans. at 48 (ECF No. 150-1) (Dr. Irani statement comment was made during a meeting in August 2011).

         PGY-2 Year.

         Dr. Irani was promoted to PGY-2 status. Irani decl. ¶ 10. He signed a new Resident Agreement for the year beginning July 1, 2011. ECF No 136-5 at 11-17.

         July 2010 - Journal Club Article: "How to Swim with Sharks."

         At the beginning of his PGY-2 year, Dr. Irani was assigned to present "How to Swim with Sharks: A Primer" as a journal club article. Irani decl. ¶ 11; see also ECF No. 152-2 (reprint of article from Perspectives in Biology and Medicine Summer 1987; Vol. 30 No. 4, pp. 486-89). Dr. Koon commented the article was not randomly assigned. Irani decl. ¶ 11. Dr. Irani found the assignment and comment humiliating. Id. The article has been presented by other residents in other years in the Residency Program. Goodno dep. at 52 (ECF No. 168-3 at 3); Koon dep. at 67 (ECF No. 149-3 at 19).

         Later the same month, Dr. Irani sent Dr. Koon an email suggesting an article from the Archives of Internal Medicine as "a kinda fun/interesting article for journal club." ECF No. 136-8 at 37 (July 13, 2010 email exchange). Dr. Koon emailed a response questioning why Dr. Irani was reading the Archives of Internal Medicine and stating "let me know if you are not satisfied with the articles selected for our journal clubs." Id.

         August 10-12, 2011 - Nurse’s Complaint about Treatment of "Mr. B."

         On August 10, 2011, a nurse’s report complaining about care provided to a "Mr. B" by Dr. Irani and an attending physician was forwarded to Drs. Walsh and Koon. ECF No. 136-3 at 49-51.[3] The reporting nurse initially made the report through her supervisors on July 11, 2011, the date Mr. B was treated for a severe injury to his arm. Id. at 50. The nurse’s primary concern was Dr. Irani and the attending physician failed to treat the patient with compassion. Id. She reported she had experienced "many similar encounters with both of these physicians" and also suggested Dr. Irani had asked her to misrepresent the amount of saline used to irrigate the wound. Id.

         Dr. Koon forwarded the nurse’s report to Dr. Irani that same day, asking for Dr. Irani’s version of events. Id. at 49. Dr. Irani’s August 10, 2011 response recounted a more compassionate version, explaining he inspected the wound and evaluated the patient’s "pain level before approving a possible overdose of narcotics to an 80 year old male." Id. at 48-49. He stated he properly introduced himself to the patient, though the nurse may not have heard him do so, and remained with the patient rather than going to see the family based on the attending’s instructions to remain at bedside. Dr. Irani noted the patient expressed appreciation for his care and they had "great interactions" when they saw each other on subsequent days. Id.; see also Irani decl. ¶ 14.

         Dr. Koon invited the nurse’s response to Dr. Irani’s version of events. ECF No. 136-3 at 48. The nurse responded on August 12, 2011, stating she wished Dr. Irani had acted as he claimed. Id. (insisting she had to twice ask Dr. Irani to allow her to administer pain medication and he smirked at her request).

         August 15, 2011 - Level II Remediation.

         On August 15, 2011, Dr. Irani was called into a meeting with Dr. Koon and told he was being placed on (or recommended for placement on) Level II remediation. Irani decl. ¶¶ 12-13. He was provided a memorandum signed by Drs. Walsh and Koon with a list of seven deficiencies. ECF No. 136-3 at 52. The deficiencies included: (1) inappropriate care of Mr. B (lack of compassion, failure to give adequate pain medication, and asking the nurse to lie about initial irrigation and debridement); (2) poor communication with patients, families, peers and attendings; (3) time management and tardiness to conferences, clinics and the operating room; (4) ineffective prioritization; (5) two instances of substandard care (using Vicryl to close a wound and failing to evaluate a Veteran’s Administration ("VA") patient with post-operative cellulitis who came to the VA emergency room); (6) substandard evaluations during his PGY-1 year, and (7) lack of attention to detail in initial PGY-2 rotations. Id. The memorandum also listed remediation measures in somewhat more specific terms and referred to prior counseling sessions between Dr. Irani, his chief resident, attending physicians, and Program Director (Dr. Koon). Id. (recommending Level II remediation from August 15, 2011, to December 1, 2011).

         Dr. Irani sought clarification of some of the listed deficiencies and remediation measures. Irani decl. ¶ 13. Dr. Koon responded the question showed Dr. Irani lacked insight. Id. According to Dr. Irani, Dr. Koon also stated he had fired residents before, including a resident in his PGY-5 year. Irani decl. ¶ 12.

         Approval of the Level II remediation was sought and obtained from the Executive Committee of the Graduate Medical Education Committee ("GMEC")[4] on August 15, 2011, after Dr. Koon’s meeting with Dr. Irani. See ECF No. 136-3 at 53. In seeking approval, Dr. Stephens[5]provided members of the Excecutive Committee information on the "action that precipitated" the remediation and stated she was working with Dr. Koon to express remedial measures in terms of specific outcome. Id.; see also ECF No. 136-9 at 22 (email to Dr. Koon seeking greater specificity).

         August 22, 2011 - Dr. Irani’s Response.

         On August 22, 2011, Dr. Irani sent Dr. Stephens a detailed written response to each of the seven deficiencies noted. ECF No. 136-3 at 56-57 (indicating a number of the listed items were the result of miscommunication, committing to work towards better communication, and concluding he took the matter seriously due to the potential impact on fellowship and job opportunities). Dr. Stephens responded a few days later, thanking Dr. Irani for his commitment to improvement and forwarding the response to Dr. Koon. Id. at 56. On August 27 2011, Dr. Koon forwarded this email string to five faculty members and the practice manager advising them Dr. Irani was on Level II remediation until December 1, 2011, and requesting their attention to Dr. Irani’s clinical performance in future evaluations. ECF No. 136-9 at 31.

         September 2011 Grievance of Level II Remediation.

         Dr. Irani unsuccessfully pursued grievance of the Level II remediation through the first three steps (review by Drs. Koon, Walsh, and Stephens). The remediation was upheld at each stage. ECF No. 136-3 at 60, 63; ECF No. 136-8 at 46, 47; ECF No. 136-9 at 34. Dr. Irani construed a comment from Dr. Walsh as discouraging pursuit of the grievance, although he did pursue it to the next step (review by Dr. Stephens). Irani decl. ¶ 21 (referring to Dr. Walsh’s statement both he and Dr. Irani were busy orthopaedic surgeons and when he had "to sit here and answer questions about all this, it just gets in the way when [he] could be doing other things"); but see ECF No. 136-8 at 46 (September 7 email to Dr. Stephens indicating Dr. Koon "encouraged me to talk to you more and/or attempt to appeal the decision if I had concerns").

         Level II Remediation Meetings.

         Periodic updates were scheduled and held throughout Dr. Irani’s Level II remediation. See, e.g., ECF No. 136-3 at 59 (Dr. Koon’s September 19, 2011 email referring to meetings held September 7 and 10 and a six-month evaluation conducted on September 19, 2011, scheduling progress report meetings for October 3, November 7, and setting post-remediation review for December 5 faculty meeting). A September 22, 2011 report by Dr. Walsh summarized a September 20 meeting between Drs. Walsh, Grabowaski, and Irani, noting Dr. Irani’s progress in his residency was satisfactory with a few exceptions. ECF No. 136-3 at 61-62 (addressing all deficiencies with particular attention to Mr. B. incident). This memorandum reports Dr. Irani’s response as "clear and forthright, " and acknowledging a "need to improve his performance." Id. at 62. Dr. Walsh still felt there was "a small gap in his level of insight" reflected in Dr. Irani’s view that some listed deficiencies were simply others’ misperceptions, but concluded the noted shortcomings were "remediable in a straight forward fashion" and stated his expectation Dr. Irani would "put these issues behind him." Id.

         Dr. Irani received and acknowledged receipt of a copy of the September 22, 2011 memorandum during an October 3, 2011 meeting with Drs. Walsh and Koon. Id. at 62, 63. Dr. Koon’s brief summary of that meeting was similarly positive, indicating Dr. Irani was provided feedback on his remediation and "appear[red] to have gained some insight into his deficiencies." Id. at 63. It also noted Dr. Guy had provided constructive feedback and Dr. Irani was "working hard to improve in these areas." Id. (setting the next meeting for November 7, 2011).

         November 3, 2011 - Discharge Summary Emails.

         In early November, Dr. Koon instructed Dr. Irani to dictate a discharge summary. There was a delay in completion of this task, which Dr. Irani attributes to a miscommunication regarding the patient for whom the discharge summary was to be prepared. Irani decl. ¶ 22-24. On November 3, 2011, Dr. Irani sent Dr. Koon an email explaining he had "actually never participated in the patient’s care" and was "not sure how [he was] responsible for the discharge order" but had "gone ahead and dictated the summary[.]" ECF No. 136-3 at 65 (adding "the only thing I can think of is that Dr. Wood asked me to put in the discharge order").

         Dr. Koon responded indicating substantial displeasure with Dr. Irani’s email. ECF No. 136-3 at 65. He noted he had asked Dr. Irani to complete the task three times and stated he "would have NEVER in a million years sent a response like this to my program director, especially in the midst of academic remediation." Id. Dr. Koon copied the two senior residents, Drs. Hoover and Wood, stating he was "open to any suggestions." Id.

         November 7, 2011 - Email to Dr. Stephens.

         On November 7, Dr. Irani emailed Dr. Stephens noting he had dropped his grievance and indicating he did so based on (1) positive feedback during the October 3, 2011 meeting and (2) a statement by either Dr. Koon or Dr. Walsh leading him to believe continuing the grievance process would strain his relationship with them. ECF No. 136-8 at 50. Dr. Irani referred to an October 26, 2011 report from Dr. Koon that he had "heard increased complaints" recently. Id. Dr. Koon referred Dr. Irani to Drs. Wood and Mazoue for specifics, but neither physician indicated any concerns when Dr. Irani checked with them. Id.

         November 21, 2011 - Meeting with Drs. Koon and Wood.

         On November 21, 2011, Dr. Irani met with Dr. Koon to review his progress on remediation. Irani decl. ¶ 25. Dr. Koon reported he would recommend Dr. Irani be moved to Level I when his Level II remediation ended. Id. Dr. Irani was encouraged that this meant he had corrected the deficiencies, but concerned Dr. Koon cited earlier incidents that "had long been resolved." Id.[6]

         November 25-27, 2011 - Thanksgiving Weekend Caller.

         Over the Thanksgiving weekend, a recent surgical patient of Dr. Koon’s called in three times regarding wound care. Dr. Irani spoke with the patient once and Dr. Goodno twice. Irani decl. ¶¶ 35, 36. The patient reported to Dr. Irani that a scab had come off her surgical wound and she had some drainage. Id. ¶ 35. Dr. Irani advised the patient he could not tell her anything without seeing the wound and encouraged her to come in. Id.[7] Dr. Irani understands Dr. Goodno’s conversations with the patient were to the same effect. Id. ¶ 36. The patient did not come in until the following Monday, at which time she had an infection. See, e.g., ECF No. 136-3 at 64 (Dr. Koon November 29, 2011 Memorandum of Record); Koon first aff. ¶ 21.[8]

         November 28, 2011 - Alleged Failure to Follow Dr. Grabowski’s Instructions to Obtain Same-Day MRI.

         On November 28, 2011, Dr. Grabowski directed Dr. Irani to obtain a same-day MRI on an outpatient. E.g., Irani decl. ¶ 32. Someone reported to Dr. Koon that Dr. Irani had not followed instructions, instead scheduling the MRI for a later date, with the error not being corrected until another physician intervened. See ECF No. 136-3 or 64 (Dr. Koon memorandum). Dr. Irani maintains that the medical assistant was initially able only to schedule the MRI for "later that week, " an appointment Dr. Irani held while he conferred with his chief resident to determine how to obtain an earlier MRI and then followed those instructions, ultimately obtaining a same-day MRI for the patient. Irani decl. ¶ 32.[9]

         November 29, 2011 - Dr. Koon Memorandum of Record.

         On November 29, 2011, Dr. Koon prepared a memorandum of record addressing his November 21, 2011 meeting with Dr. Irani, and the two intervening patient care incidents (Thanksgiving weekend caller and MRI instructions). ECF No. 136-3 at 64. Dr. Koon characterized the November 21 meeting less favorably than Dr. Irani, stating Dr. Wood raised several instances in which Dr. Irani was still performing below his level of training and Dr. Koon raised the inappropriateness of Dr. Irani’s November 3 email about the discharge summary. Id. (also referring to verbal counseling about inappropriate pain management with one of Dr. Walsh’s post-operative patients). Dr. Koon also described Dr. Irani’s reaction to the anticipated recommendation he be moved to Level I as "a long sigh and a rolling of the eyes" followed by a comment this would only continue his "overhead, " which Dr. Irani explained referred to time spent keeping a log of his activities while on probation. Id.; see also Koon first aff. ¶ 20; Irani decl. ¶ 25 (stating he asked for clarification when advised Dr. Koon would recommend Level I remediation but not denying Dr. Koon’s characterization of his reaction).

         Dr. Koon concluded: "Dr. Irani continues to display behaviors which are inappropriate and unprofessional. His progress will be re-evaluated at our next faculty meeting on Monday 05 DEC 11. We have asked for his presence at this meeting." ECF No. 136-3 at 64. Dr. Koon sent this memorandum to Drs. Walsh, Wood, Hoover and Stephens by email on November 29, 2011. ECF No. 136-9 at 45. Dr. Stephens responded the next day that Dr. Koon should be sure to "approach these deficiencies in terms of specific examples of what is not acceptable and expectations." ECF No. 136-9 at 47.

         December 5, 2011 - Faculty Meeting.

         Dr. Irani attended the December 5, 2011 faculty meeting during which Dr. Koon recited a list of concerns (including items in the August 15 and November 29, 2011 memoranda) and stated Dr. Irani continued to lack insight into his problems. Irani decl. ¶ 26. Dr. Irani felt he was not given a chance to respond to these and other accusations of more recent events, which he claims were patently false (e.g., Dr. Koon’s statements relating to the Thanksgiving weekend caller and inappropriate pain medication instructions to another post-surgical patient). Id. ¶¶ 26, 31, 35-37. Dr. Koon asked "very pointed questions in an intimidating manner" including whether Dr. Irani "wanted to do orthopaedics." Id. ¶¶ 27, 28.

         The allegation Dr. Irani failed to follow Dr. Grabowski’s instructions to obtain a same-day MRI was raised for the first time in this meeting. Id. ¶ 32. When Dr. Irani tried to explain the allegation was "entirely false, " Dr. Koon responded this was exactly what he was talking about regarding Dr. Irani’s lack of insight and refusal to accept fault. Id. ¶ 33. Dr, Koon also raised new allegations of lack of professionalism and complaints of poor patient management from trauma case managers, which surprised Dr. Irani as he had received positive feedback from these individuals. Id. ¶ 39.

         The faculty voted unanimously to recommend to the GMEC that Dr. Irani be placed on Level III remediation, with suspension of clinical duties. Koon first aff. ¶ 22; Walsh aff. ¶ 18. Dr. Irani apparently was not informed of this recommendation at that time. Dr. Koon did, however, email Dr. Irani on December 7, 2011, stating Dr. Irani was required to attend a psychological evaluation to better structure the remediation. ECF No. 136-3 at 77 (indicating evaluation was scheduled for December 12, 2011 at 4:30 p.m.).

         December 7-9, 2011 - Trauma Patient Incident ("TF375").

         On December 7, 2011, Dr. Irani was involved in the care of a trauma patient ("TF375"). Two nurses complained to their supervisors about the care provided by Dr. Irani and a first year orthopaedic resident, Dr. Nathe.

         ECF No. 136-3 at 71-74.[10] According to one nurse, the patient reported she was uncomfortable with the residents, felt they were unorganized, and she was scared and felt thrown around. Id. at 74. Both nurses’ detailed statements were consistent with the patient’s concerns, focusing on an absence of compassionate care. ECF No. 136-3 at 71-74. Other concerns included inappropriate comments in front of the patient, treating a nurse as "invisible, " and the chaotic nature of the scene. Id. One nurse concluded she had never, in her five years at Palmetto Health, "felt so uneasy, so upset, or like [she] had to help save the patient from what was going on." Id. at 73 (noting she involved two other nurses to help address the situation including calling the attending physician). Dr. Koon was apparently first informed of the incident orally on December 8, 2011. Id. at 71. The nurses’ emailed reports were forwarded to him the following day. Id.

         December 9, 2011 - Suspension.

         On December 9, 2011, Dr. Walsh informed Dr. Irani by telephone he was being suspended pending an investigation into the TF375 incident. Irani decl. ¶ 45; see also Walsh aff. ¶ 19 (averring GMEC Executive Committee approved immediate suspension on December 9, 2011, pending review by full GMEC on December 13, 2011). Dr. Walsh assured Dr. Irani all sides of the story would be gathered, but Dr. Irani contends Dr. Walsh did not seek Dr. Irani’s version of events or interview witnesses whose names Dr. Irani provided. Id. ¶¶ 45-48; but see ECF No. 136-3 at 68-70 (Dr. Nathe’s December 11, 2011 written statement).[11]

         December 12, 2011 - Cancellation of Appointment.

         Dr. Irani cancelled his appointment with the psychologist approximately one hour before the scheduled time because he "wasn’t feeling well enough . . . to do the testing." ECF No. 136-3 at 78 (December 12, 2011 email referring to events of preceding Friday, the day Dr. Irani was informed of his suspension).

         December 12, 2011 - Memorandum Recommending Level III Remediation.

         Drs. Walsh and Koon signed a memorandum of record on December 12, 2011, reciting the history of Dr. Irani’s remediation, summarizing the December 5, 2011 faculty meeting and incidents addressed in that meeting, and reporting the post-meeting TF375 incident. ECF No. 136-3 at 66, 67 (characterizing Dr. Irani’s actions during the faculty meeting as refusing to give direct answers to several questions and failing to take responsibility for several patient-care incidents). The memorandum recommends to the GMEC that Dr. Irani be placed on Level III remediation with "suspension from patient care" and a leave of absence from December 9, 2011, through at least January 30, 2012. Id. at 67 (also recommending Dr. Irani be required to complete psychological testing and any recommended counseling). The memorandum states Dr. Irani will be given a copy and reminds him of his grievance rights. Id.

         On December 13, 2011, Dr. Koon advised Dr. Irani by email the GMEC had approved the Level III remediation and suspension through January 30, 2012. ECF No. 136-3 at 79 (also advising Dr. Irani he must reschedule the cancelled appointment and of his grievance rights); see also Irani decl. ¶ 46 (stating he was given the December 12, 2011 memorandum when he was told of the suspension); ECF No. 136-3 at 80 (December 15, 2011 email from Dr. Koon advising Dr. Irani he will be terminated if he does not complete the psychological evaluation by January 15, 2012, and offering three alternative providers).

         December 16, 2011 - Dr. Irani Email Exchange with Dr. Stephens.

         On December 16, 2011, Dr. Irani emailed Dr. Stephens indicating he wanted to initiate the grievance process and stating he discontinued his prior grievance to avoid jeopardizing his relationship with his attendings. ECF No. 136-3 at 81, 82. He attributed the "derailed" relationship to Dr. Koon’s reaction to his November 3, 2011 email regarding the discharge summary. Id. at 81. Dr. Irani asked for documents relating to the suspension, including TF375, so he can "better understand the situation." Id. at 82. Dr. Stephens responded reminding Dr. Irani of the proper grievance process. Id. at 81. She did not provide documents. Id.

         December 19, 2011 - Meeting with Dr. Walsh.

         On December 19, 2011, Dr. Irani met with Dr. Walsh. Irani decl. ¶¶ 50-52. Dr. Irani provided his recollection of the treatment of TF375 and asked Dr. Walsh to speak with witnesses including the family. Id. ¶ 50. Dr. Walsh responded Dr. Irani’s version did not make sense and Drs. Irani and Nathe should have called for additional help. Id. ¶ 51. Dr. Irani stated they attempted to get help but none was offered. Id. Rather than accepting Dr. Irani’s version, Dr. Walsh insisted Dr. Irani lacked insight, criticized the quality of his work and presentations, and suggested they had reached a point where there was a "lack of trust." Id.; see also ECF No. 136-3 at 83 (Dr. Walsh’s contemporaneous memorandum of record summarizing the meeting from his perspective, with Dr. Irani’s January 18, 2012 acknowledgement of receipt).

         January 3, 2012 - Meeting with Dr. Stephens.

         Dr. Irani met with Dr. Stephens on January 3, 2012, as part of the grievance process. E.g., Irani decl. ¶ 53; ECF No. 136-9 at 70 (Dr. Stephens’ notes of the meeting). Dr. Irani recalls complaining the faculty had not sought his side of the story before the suspension and relating a concern Dr. Koon was biased against him, treated him differently, and had called Dr. Irani "racially charged names like ‘Achmed the Terrorist.’" Irani decl. ¶ 53. He gave Dr. Stephens a list of witnesses relating to TF375 and "implored her to perform a careful review" of this incident. Id. He again requested documentation of the complaints. Id.

         According to Dr. Stephens’ notes, Dr. Irani questioned Dr. Koon’s "sudden change" from the November 21, 2011 meeting (when Dr. Koon indicated Dr. Irani would likely be moved to Level I remediation), pointed to four inaccuracies in the reasons given for his suspension (characterizing the reasons given as "inaccurate and false"), and offered an excuse for being late for rounds twice after November 21(a systemic failure in the Android phone). ECF No. 136-9 at 70; see also ECF No. 136-3 at 86, 87 (Dr. Irani’s January 4, 2012 email to Dr. Stephens reiterating his concerns, attaching his written summary of the TF375 incident, noting he has had only two complaints from ancillary staff and claiming both complaints involved the same individuals); Id. at 86 (Dr. Stephens’ January 5, 2012 response reminding Dr. Irani he must complete psychological evaluation by January 15 and addressing concerns regarding rescheduling).

         January 5, 2012 - Dr. Stephens’ Meeting with Dr. Koon.

         On January 5, 2012, Dr. Stephens met with Dr. Koon as part of her investigation of Dr. Irani’s grievance. See ECF No. 136-10 at 8 (Stephens’ typed notes of the meeting). Dr. Koon’s version of events, as set forth in Dr. Stephens’ notes, indicates he provided details consistent with the December 12, 2011 memorandum of record. In addition, as to the TF375 incident, Dr. Koon reported interviews of the cast technician and Dr. Nathe, both of whose versions were "less caustic" than the nurses’ versions. Id. He also reported interviewing Dr. Jones whose view was "the technical ortho[paedic] care was handled appropriately, but the communication had not been." Id. Dr. Koon also noted the faculty had recommended suspension before the TF375 incident occurred, which incident only reinforced the decision. Id.

         January 11-16, 2012 - Dr. Stephens’ Denial of Grievance.

         On January 11, 2012, Dr. Stephens emailed Dr. Irani advising him she was denying his grievance of his December 9, 2011 Level III remediation and suspension based on the information available to her and "further discussions with several others." ECF No. 136-3 at 88. She directed Dr. Irani to the Resident Manual for further steps in the grievance process. Id.

         Dr. Irani emailed Dr. Stephens on January 13, 2012, again asking for documentation of the complaints relating to TF375 so he could "understand the complaints against me and . . . move forward." ECF No. 136-10 at 17. Dr. Stephens responded he had already "seen the issues specific to the trauma patient situation" and should be focusing on "meeting the terms of your remediation plan" rather than "gathering documents." Id.

         January 18, 2012 - Meeting with Dr. Walsh.

         On January 18, 2012, Dr. Irani met with Dr. Walsh. Irani decl. ¶¶ 54-58. Dr. Irani advised Dr. Walsh his main concern was the effect the suspension would have on his graduation date and future opportunities and indicated his willingness to drop his grievance if these concerns were resolved. Id. ¶ 54. Dr. Walsh responded he would discuss these concerns with Dr. Stephens. Id. ¶ 58.

         Dr. Irani also requested documentation regarding the TF375 incident from Dr. Walsh. Id. ¶ 55. Dr. Walsh responded the suspension would have occurred even without this incident and expressed disbelief about Dr. Irani’s version of events. Id.

         Dr. Irani expressed frustration at being told he lacked insight when no one would answer his questions or listen to his side. Id. ¶ 56. Dr. Walsh asked him to think about how he wanted to "‘tell his side of the story’" and "explicitly said ‘[i]t didn’t have to involve Dr. Koon.’" Id. ¶ 57 (Dr. Irani declaration quoting Dr. Walsh).

         January 20, 2012 - Psychological Evaluation.

         The required psychological evaluation was completed on or before January 20, 2012, and considered timely. ECF No. 136-3 at 89-98 (heavily redacted report). The report does not appear to have had any significant influence on remediation. E.g., ECF No. 136-10 at 19 (email referring to psychological report).

         January 26, 2012 - Missed Grievance Deadline.

         Dr. Irani emailed Dr. Walsh on January 24 and 26, 2012, following up on their January 18 meeting, most critically inquiring whether the suspension might be recharacterized as a leave of absence. ECF No. 136-3 at 99; ECF No. 136-8 at 79, 80. Having not heard back from Dr. Walsh by January 26, 2012, the date Dr. Irani believed was the relevant deadline, Dr. Irani requested a Grievance Committee hearing. Irani decl. ¶¶ 58, 59. The request was denied as one day late. Id. ¶ 60 (noting Palmetto Health rejected Dr. Irani’s argument the delay should be excused because he assumed Martin Luther King Day was not counted as a "business day, " which term was not defined in the relevant policy).

         January 24-30, 2012 - Communications Regarding Remediation Plan.

         Between January 24 and 28, Dr. Stephens, human resources staff, and Dr. Koon exchanged drafts of a new or updated remediation plan. ECF Nos. 136-10 at 20-29. These efforts culminated in a January 31, 2012 memorandum of record and attached Level II remediation plan. Id. at 30-35, 39. On January 28, 2012, Dr. Koon emailed Drs. Irani, Voss, Wood, Hoover and Stephens setting a meeting date for January 31, 2012, to discuss the next step in the remediation process. ECF No. 136-3 at 100; ECF No. 136-10 at 36 (Dr. Irani response plan "[s]ounds good.").

         Dr. Walsh also emailed Dr. Irani on January 29, 2012, responding to Dr. Irani’s January 26, 2012 email inquiry regarding treating the suspension as a leave of absence. ECF No. 136-8 at 81. Dr. Walsh characterized his prior statement as explaining he lacked authority to change the wording of the suspension and "doubted it could happen at all." Id. (noting the deadline for further grievance had now passed). On January 30, 2012, believing it consistent with Dr. Walsh’s instruction to think about how to tell his side, Dr. Irani emailed Dr. Walsh expressing a desire to have Dr. Guy handle the remediation process going forward and explaining the reasons for his request. ECF No. 136-8 at 83; Irani decl. ¶ 61.

         January 30-31, 2012 - Faculty Meeting and New Remediation Plan.

         Dr. Irani’s request to have Dr. Guy oversee his remediation was denied at a January 30, 2012 faculty meeting. Irani decl. ¶ 62 (describing Dr. Koon’s reaction to the request as angry and confrontational). The faculty recommended Dr. Irani be placed on Level II remediation from February 6 through June 15, 2012, and proposed a detailed remediation plan, both subject to approval by the GMEC. ECF No. 136-3 at 101-05 (memorandum of record and attached detailed remediation plan). The proposed plan placed Dr. Irani on Dr. Voss’s service and required bi-weekly meetings with Dr. Voss and monthly meetings with Dr. Koon. Id. Dr. Irani signed the memorandum of record on February 1, 2012, adding a notation that he attempted to appeal his suspension. Id. at 101, 105.

         February 1-23, 2012 - Return from Suspension.

         Dr. Irani returned from suspension on February 1, 2012. ECF No. 136-10 at 47. He was placed on Dr. Voss’s service and received a positive report from Dr. Voss at his first bi-weekly meeting. Irani decl. ¶ 64 (after two weeks, Dr. Voss reported Dr. Irani "was doing well" and should "just keep on doing what [he] was doing"). During the same period, Dr. Guy helped Dr. Irani explore alternative careers. ECF No. 136-10 at 48-52 (emails between Drs. Irani and Guy and with potential employers).

         February 24-29, 2012 - Spine Patient "L.O." Incident.

         On February 24, 2012, Dr. Irani was assisting Dr. Grabowski in the care of post-surgical spine patient "L.O." While details are disputed, it is undisputed Dr. Irani (1) received a call from a nurse reporting the patient was or might be experiencing difficulty walking, (2) did not immediately check on the patient after receiving this call, (3) discovered serious neurological deficits when he did examine the patient and (4) did not make a contemporaneous record of his findings. Irani decl. ¶¶ 65-67 (explaining why he believes his actions were appropriate under the circumstances). It is also undisputed Dr. Grabowski emailed Dr. Koon on February 27, 2012, complaining Dr. Irani’s care of the patient was inappropriate both due to delay in examining the patient and in failing to document his findings. ECF No. 136-3 at 113 (Dr. Grabowski report to Dr. Koon, indicating Dr. Irani was informed of concern at 11:30 a.m., had not seen the patient when he called Dr. Grabowski at 12:30 p.m., was further delayed because patient was in the bathroom, and ultimately reporting back at about 1:30 p.m.); ECF No. 136-10 at 53 (Dr. Koon’s February 27 email forwarding Dr. Grabowski’s report to Dr. Walsh, suggesting Dr. Walsh also ask Dr. Grabowski about Dr. Irani’s "wrong site surgery" comment).

         Drs. Grabowski and Voss met with Dr. Irani on February 28 or 29, 2012, to discuss the incident. Irani decl. ¶¶ 65-67 (referring to meeting on February 29 and setting out a detailed description of his actions with respect to L.O., but providing no detail as to the meeting); ECF No. 136-3 at 112 (March 5, 2012 memorandum referring to February 28 meeting); Id. at 114 (Dr. Voss’s later, undated memorandum indicating meeting occurred on Tuesday two weeks earlier). In his post-meeting summary, Dr. Voss reported Dr. Irani’s initial response to the nurse was somewhat flippant, he delayed for an hour and a half before seeing the patient, and he failed to demonstrate "any true insight into the level of concern [expected] in the care of a patient" at risk of paralysis. ECF No. 136-3 at 114. In his affidavit and other written explanations, Dr. Irani explained he asked the nurse to confirm there were signs of a neurological deficit before he went to see the patient (to rule out pain as the cause), was unable to immediately see the patient once he did go (because she was in the bathroom), and did not immediately document his findings (because comments from Dr. Grabowski combined with earlier instructions from Dr. Voss led him to believe he should not do so). Irani decl. 65-67; ECF No. 136-3 at 116 (Dr. Irani’s March 8, 2012 explanation earlier instruction was from Dr. Voss and related to leg length discrepancies); ECF No. 136-8 at 32 (explaining in submission to ACGME previous instruction was to not document inaccurate examinations).

         February 29, 2012 - Emails re Non-Renewal and Dismissal.

         On the morning of February 29, 2012, Dr. Koon wrote Dr. Stephens advising that the Department of Orthopaedic Surgery would recommend Dr. Irani’s Resident Agreement not be renewed for the following year. ECF No. 136-10 at 54. That evening, Dr. Koon emailed Dr. Stephens, noting an additional failure by Dr. Irani to follow instructions regarding wound care on spine patient L.O. and that Dr. Irani "did not have a good answer as to why this was left undone" when Drs. Voss and Grabowski met with him. Dr. Koon asked whether "this behavior rises to the level of ‘just cause’ for dismissal." ECF No. 136-3 at 109.

         March 1, 2012 - Care of Hemophiliac

         On the morning of March 1, 2012, Dr. Koon emailed Drs. Stephens and Walsh relaying a report from Dr. Wood that Dr. Irani failed to evaluate a hemophiliac with possible compartment syndrome at 4:00 a.m. as instructed. ECF No. 136-3 at 108 (also reporting that Dr. Irani was late for rounds and had to be called by Dr. Hoover that same morning). Dr. Koon opined that Dr. Irani’s actions were "putting our orthopaedic patients at risk." Id. He recommended they meet with Dr. Irani and, absent a reasonable explanation, opined they had "‘just cause’ to begin the dismissal process." Id.

         That afternoon, Dr. Koon reported to Dr. Stephens that Dr. Walsh had met with Dr. Irani, who admitted he had not seen the hemophilia patient at 4:00 a.m. but stated he evaluated the patient at 2:30 a.m., though he had not documented that evaluation. ECF No. 136-10 at 59 (also stating the department’s recommendation remained unchanged); see also ECF No. 136-3 at 108 (Dr. Koon’s subsequent email to Drs. Stephens and Walsh referring to evening meeting with Drs. Irani and Hoover).[12]

         March 1, 2012 - Suspension.

         Dr. Stephens emailed the GMEC Executive Committee shortly after receiving Dr. Koon’s afternoon email. ECF No. 136-10 at 59-61 (forwarding emails regarding recent events). Dr. Stephens stated immediate action was needed and suggested two alternative courses: (1) dismissal; or (2) suspension without pay pending a decision by the full GMEC. Id. The Executive Committee elected to suspend Dr. Irani without pay immediately and recommend dismissal to the full GMEC at its April 10, 2012 meeting. See ECF No. 136-10 at 62 (Dr. Koon’s email), 65 (Dr. Stephens’ email). This decision was communicated to Dr. Irani that same evening. Irani decl. ¶ 68 (stating he was told suspension and recommended termination related to his care of the spine patient and hemophiliac).

         March 5, 2012 - Level III Remediation.

         On March 5, 2012, Dr. Koon prepared and Dr. Stephens reviewed a memorandum of record summarizing events leading to Dr. Irani’s suspension. ECF No. 136-10 at 71, 73. Dr. Koon forwarded this memorandum to Dr. Irani that same day, asking Dr. Irani to provide his recollection of events surrounding the care of both patients by the end of the week. ECF No. 136-3 at 111-13 (email and memorandum referring to Dr. Irani’s February 28 or 29 meeting with Drs. Voss and Grabowski and attaching Dr. Grabowski’s February 27 email regarding the spine patient and Dr. Wood’s summary of events relating to the hemophiliac). The memorandum recommends Level III remediation with immediate suspension from clinical duties and states the events will be investigated thoroughly and, absent reasonable explanation, the faculty will recommend Dr. Irani’s dismissal at the April 10, 2012 GMEC meeting. Id. at 112.

         March 8, 2012 - Meetings and Explanation.

         On March 8, 2012, Dr. Irani provided his written explanation of the two recent patient incidents to Dr. Koon. ECF No. 136-3 at 116-17 (emailed summary). Regarding the hemophiliac patient, Dr. Irani stated he was asked to examine the patient at "about four o’clock" on March 1, 2012, and did check at roughly the halfway point between the last exam and anticipated next (6:00 a.m.) exam. Id. He described his 2:30 a.m. exam in detail, but did not explain why he failed to check at 4:00 a.m. or why he failed to document his 2:30 a.m. exam. Id.

         Regarding the spine patient, Dr. Irani stated he received a call from a nurse sometime after 11:30 a.m. on February 24, 2012, who indicated the patient was having difficulty moving during physical therapy. He asked the nurse to verify whether it was a neurological deficit as opposed to compensation for pain. The nurse called back twenty to thirty minutes later, advising that the patient could not dorsiflex her foot. Dr. Irani then went to see the patient, but she could not be evaluated immediately as she was in the bathroom. At this point, Dr. Irani reported the situation to Dr. Grabowski, stating that he could not see the patient immediately because she was on the toilet. After "several repeated attempts[, ]" Dr. Irani was able to see the patient. Dr. Irani detailed his finding of neurological defects, his efforts to console the patient, and his report to Grabowski. Dr. Irani reported that Dr. Grabowski’s initial response was that Dr. Irani’s "exam was incongruent with [his] observation of the patient walking [and] there was likely an error in [his] exam." Because of this response from Dr. Grabowski and prior instructions not to document incongruent findings (given in regard to leg length discrepancies), Dr. Irani did not document his findings. Dr. Grabowski ultimately found neurological deficits and scheduled the patient for further surgery. Dr. Irani acknowledged that "[t]here was obviously very real gravity to the case, and I did not ask any additional questions . . . or say anything in addition to the information I was required to communicate." Id. at 117.

         March 13-20, 2012 - Grievance Steps.

         Dr. Irani met with Dr. Koon on March 13, 2012, satisfying the first step in the grievance process. ECF No. 136-3 at 119. Dr. Koon upheld the suspension and recommendation of dismissal. Id.

         Dr. Irani also sought additional input regarding the spine patient from Dr. Grabowski who declined to provide additional feedback. ECF No. 136-3 at 120 (March 13-20 email exchange). He spoke with Dr. Walsh on March 14, 2012, apparently as his second step in the grievance process. Irani decl. ¶ 71. According to Dr. Irani, Dr. Walsh declared there was no way the GMEC would go against the faculty and put pressure on Dr. Irani to "leav[e] the program ‘with dignity.’" Id. Dr. Irani next met with Dr. Stephens, the third step in his grievance of the suspension. She also upheld the suspension. Id. ¶¶ 72, 73; ECF No. 136-3 at 122-23 (March 28, 2012 letter upholding suspension and specifying deadline to request a Grievance Committee hearing).

         On April 2, 2012, Dr. Irani exchanged emails with Palmetto Health human resources representative Lin Hearne, regarding a Grievance Committee hearing then scheduled for April 11, 2012. ECF No. 136-10 at 89, 90. He ultimately cancelled that hearing, indicating he would reschedule it, if needed, after the GMEC met on April 10, 2012. Id. at 89 (noting Grievance Committee hearing would be unnecessary "if the GMEC decides to reinstate me").

         On March 30, 2012, Dr. Irani sought documentation from Dr. Koon regarding incidents leading to his suspension and recommendation for dismissal. ECF No. 136-10 at 92 (seeking memoranda of meetings, documentation from Drs. Wood and Grabowski about two recent patient incidents, and documentation of nurses’ complaints about TF375). On April 3 and 6, 2012, Dr. Koon provided the requested memoranda, summaries of recent incidents prepared by Drs. Wood and Grabowski, and emailed reports by nurses relating to TF375. ECF No. 136-10 at 92-106 (emailed responses with attachments).

         April 9, 2012 - Complaint to ACGME.

         On April 9, 2012, Dr. Irani emailed the ACGME attaching a "signed formal complaint regarding the practices of the Palmetto Health Orthopaedics Department." ECF No. 136-8 at 13. The attached documents apparently included a two-page document addressed "[t]o whom it may concern" complaining of "unethical behavior and harassment I have been subjected to from both my program director and the chairman of my department." Id. at 15-16 (also referring to unwillingness of "local committees" to "listen to my grievances"). Sixteen of the eighteen paragraphs in this letter deal exclusively with Dr. Irani’s circumstances. The remaining two paragraphs refer to the program having "an unusually high attrition rate" and use of residents "to solve service needs[.]" Id. at 15-16.

         April 10-11, 2012 - GMEC Dismissal Decision and Grievance.

         On April 10, 2012, the full GMEC met and voted to dismiss Dr. Irani immediately. See ECF No. 136-3 at 132; ECF No. 141-13 (minutes). Dr. Koon informed Dr. Irani of the decision and provided the deadline for filing a grievance, April 11, 2012. Id. Dr. Irani timely requested a Grievance Committee hearing. ECF No. 136-10 at 108 (April 11, 2012 email to Hearne).

         April 13, 2012 - Supplemental materials to ACGME.

         On April 13, 2102, Dr. Irani provided supplemental documents to the ACGME adding complaints of duty hour violations and inadequate supervision. ECF No. 136-8 at 12-13. In this email, Dr. Irani referred to the fall-inline culture of the program and stated "[a]fter last year’s resident survey revealed some resident dissatisfaction, the residents commented on how it became a witch hunt . . . to see who had written disparaging comments about the program. Those that don’t fall inline (like myself), it seems, are profiled and unfairly targeted." Id. at 13.

         April 27, 2012 - ACGME Letter to Drs. Stephens and Koon.

         On April 27, 2012, the ACGME notified Drs. Stephens and Koon of Dr. Irani’s complaints including racial harassment, disparate treatment, inadequate due process, lack of supervision, and duty hour violations. ECF No. 136-8 at 1-11 (summarizing Dr. Irani’s complaints, listing corresponding ACGME requirements, and attaching Dr. Irani’s emails). The Residency Program was given until May 28, 2012, to respond. Id. at 7.

         April 30, 2012 - Grievance Committee Hearing.

         The Grievance Committee hearing was conducted on April 30, 2012. ECF No. 150-1 at 1-143 (transcript). At the outset, the moderator, Gwen Hill (Palmetto Health’s interim vice president of human resources), introduced the five committee members: two residents from general psychiatry and surgery and three faculty members from OB/GYN, internal medicine, and emergency medicine. Id. at 2.[13] Hill explained that management would speak first and have up to an hour; the committee could then ask questions, followed by any questions Dr. Irani wanted to pose. Id. at 3. Dr. Irani would then have the same amount of time, followed by committee questions and questions from management. After that, each side would have five minutes for a concluding statement. Id.[14]

         The transcript reveals that this procedure was followed with Drs. Koon and Walsh presenting first, and apparently taking most of their allotted time. Id. at 4-44; id. at 31 (Hill advising management they had 20 minutes left). The committee then posed a few questions to Drs. Koon and Walsh. Id. at 44-46. Dr. Irani was offered but declined an opportunity to question Drs. Walsh and Koon. Id. at 46. Dr. Irani presented his case without reaching his time limit. Id. at 46-76. The committee then posed a number of questions to Dr. Irani, each of which he was allowed to fully answer. Id. at 76-85. Drs. Walsh and Koon were then offered and accepted the opportunity to pose questions of their own to Dr. Irani. Id. at 85-113. Both sides made very short closing statements. Id. at 113-15 (Dr. Walsh); id at 115-16 (Dr. Irani).

         A few comments or inquiries from committee members and Hill during Drs. Walsh and Koon’s questioning of Dr. Irani were apparently intended to limit certain lines of questioning as peripheral. E.g., id. at 95 (question during brief inquiry about ACGME complaint); id. at 108 (same during later inquiry). There were no comments or inquiries that limited Dr. Irani’s presentation in any manner.[15]

         Dr. Irani’s presentation addressed specific incidents from the various remediation memoranda as well as more general concerns with his treatment. The latter included a statement that he was "extremely concerned by the unethical behavior and harassment" he had been "subject[ed] to at the hands of [his] program director and the chairman of my department." Id. at 47. He specifically referred to Dr. Koon’s statement that the medicine program would be happy just to have residents who spoke English as well as his reference to Dr. Irani as "Achmed the Terrorist." Id. at 48 (indicating the "sp[eak] English" comment was made in connection with the first remediation meeting in August 2011); id. at 51 (stating Dr. Koon "continued to escalate [by making] derogatory . . . comments, saying I was a terrorist, going so far as to label me ‘Achmed the Terrorist’"); id. at 58 (stating, in addressing discussion of narcotics dosing allegations during a faculty meeting, he felt intimidated by Dr. Koon "calling me a terrorist and threaten[ing] me with discipline for minor infractions but for which he gave a pass to other residents"); id. at 70-72 (admitting he had made mistakes but alleging he was "illegally targeted" and "vilified" for actions for which his colleagues were not penalized; that, while "on remediation, Dr. Koon regularly taunted me, calling me Achmed the Terrorist[, ]" and asserting he was subjected to "derogatory, inappropriate, and insensitive racial taunting by those entrusted with my education"); id. at 74 (referring to "racially-based harassment" including referring to him as "Achmed the Terrorist" and "constant insinuations about my cultural background").

         Dr. Irani also referred to inadequate specificity in the August 15, 2011 remediation plan. Id. at 48. He noted he received contrary reports (positive views of his work) when he sought clarification from his fellow residents. Id. at 48-49.

         Dr. Irani stated it was "no secret we often violated duty hours" in making sure the work was done. Id. at 49. Without discussing the source of the complaint, he stated the Program was under investigation by the ACGME because of duty hour violations and lack of resident supervision. Id.; see also Id. at 75 (stating it was "noteworthy that this program is currently being investigated by the ACGME for work hour violations and lack of resident supervision").

         During his comments, Dr. Irani made several requests that the Grievance Committee look beyond the presentations made during the meeting. Id. at 76 (imploring the Committee to "investigate this pattern of targeted unfair behavior"); id. at 85 (inviting the Committee to "poll the ER [and floor] nurses, and I’ll stand by whatever they say" about his care for his patients, making the same invitation as to the spine patient); id. at 112 (responding to a question from Dr. Koon about allegations of disparate treatment by noting the trauma case managers told Dr. Irani he was doing a good job, in contrast to Dr. Koon’s reports, and suggesting the Committee should speak directly to the individuals involved to get a "neutral third opinion"); id. at 116 (stating in closing "[a]nything here you have questions about, I’m more than happy to substantiate . . . . You’re more than welcome to poll the trauma case managers, poll any of the nurses and get their opinions of what they think about me. I’ll stand by that."); see also Irani decl. ¶ 73 (stating he hoped "the grievance council would review charts, and objective evidence to determine which side was correct").

         After Dr. Irani concluded his presentation, one Committee member asked what Dr. Irani believed "ultimately led us to this day." Id. at 82. In response, Dr. Irani conceded that "when I first came here, it was a rocky start, and I was new to the area." Id. He explained that he received better evaluations later in his first year, but the orthopaedics department (the locus of his second year), "was a different environment. I think Dr. Koon became frustrated because I kept asking questions. I wanted more, and perhaps I do lack insight, but I was never given the opportunity to gain that." Id. at 82, 83. Dr. Irani then referred to Dr. Koon’s "personal vendetta" to fire him after Dr. Irani sent "that email." Id. at 84 (referring to the November 3, 2011 email regarding the discharge summary); see also Id. at 83 (noting there was a "very marked change in the tone, and it became very personal" after that point).

         Drs. Walsh and Koon’s questions were generally directed to specific incidents. Id. at 87-88 (asking about the Mr. B and TF375 incidents); id. 88-89 (asking about six incidents discussed during the meeting and whether Dr. Irani’s position was he was right and others were wrong as to all of them, to which Dr. Irani responded it wasn’t an all wrong-or-right scenario as there was always room for improvement); id. at 89-91 (asking about advice to patient regarding pain medication, to which Dr. Irani responded that he asked another resident to follow up the next day because he realized there may have been a miscommunication with the patient); id. at 94-98 (asking about hemophiliac and spine patients, to which Dr. Irani responded he (1) was counseled about the spine patient one day before the incident with the hemophiliac, (2) delayed documenting both examinations for at least two days, and (3) was late to rounds on March 1, 2012).

         Post-Meeting Submissions to Grievance Committee.

         Following the April 30, 2012 hearing, "the [G]rievance [C]ommittee indicated that Dr. Irani had discussed the support of several physicians, including Dr. Guy" and requested "additional information - including statements from Voss and Guy." Hill aff. ¶ 6 (ECF No. 168-8). This information was sought from the faculty and Dr. Irani was also invited to provide additional information. Id. ¶ 7.

         The faculty submitted letters or statements from Drs. Guy and Voss, and possibly a statement from Drs. Walsh and Koon (discussed below). Dr. Guy’s letter was very positive as to multiple aspects of Dr. Irani’s abilities but stated Dr. Guy did not believe Dr. Irani would excel in any manner in clinical medicine and did not believe he belonged in an orthopaedic residency program. ECF No. 139-3 at 51-53 (letter dated May 2, 2012). Dr. Guy explained that these views were based on information obtained from Dr. Irani himself and impressions from other faculty as he had not personally witnessed Dr. Irani’s clinical work. Id.

         Dr. Voss’s "Summative Statement" characterizes Dr. Irani as "often very friendly" in his interactions with patients, but falling "far short of what was expected" when care became "onerous or difficult." ECF No. 155-5 at 1. Dr. Voss briefly described four incidents in which Dr. Irani (1) discharged one patient without enough pain medication; (2) encouraged another to take too much pain medication; (3) failed to check on a patient (apparently referring to the hemophiliac); and (4) failed to premedicate a patient before manipulating the arm (apparently referring to Mr. B). Dr. Voss concluded that Dr. Irani "did not really care for the patient." Id.[16]

         Dr. Koon also drafted a letter to the Grievance Committee. ECF No. 139-4 at 23-26. This letter is largely repetitive of information provided during the April 30, 2012 hearing and refers to (1) a failure to do follow up wound care on Dr. Grabowski’s spine patient (after February 27, 2012); (2) an inadequate history and physical on a joint patient on February 27, 2012; and (3) an inappropriate joke about how to handle a wrong-site surgery (just charge extra). The court assumes for purposes of this order that this letter was provided to the Grievance Committee.[17]

         Dr. Irani provided a statement titled "Clarification of a few points raised by Dr. Koon in his opening statement." ECF No. 168-8 at 4-5. Dr. Irani noted there were "several discrepancies in [Dr. Koon’s] opening statement[, ]" though "[m]ost are completely explained in my accompanying writeup." Id. at 4. Dr. Irani addressed three specific issues: preparation of the morning list, the decision to amputate Mr. B’s arm, and the faculty’s delay in seeking Dr. Irani’s explanation as to TF375. Id. He also incorporated the body of an email from a fellow resident who described Dr. Koon’s reaction to Dr. Irani’s delay in dictating the discharge summary that led to the November 3 email exchange as "a witch hunt." Id. at 5. Dr. Irani also provided a letter from his attorney, which Hearne explained would not be forwarded and Dr. Irani agreed "might not be appropriate in this setting." ECF No. 168-9 at 2. He also appears to have submitted an "explanation of exhibits, " though it does not appear this document was forwarded to the committee. Id. at 1-2 (Dr. Irani email characterizing this explanation as "largely lifted from my talk that references and explains all the supplemental documentation and exhibits that the [G]rievance [Committee] was given" and Hearne’s response indicating only the email from Dr. Irani’s fellow resident and clarification of Dr. Koon’s statement were "approved to move forward to the committee").

         May 4, 2012 - ACGME Supplement. On May 4, 2012, the ACGME sent Drs. Stephens and Koon a "revised, more complete document" Dr. Irani had submitted in support of his complaint. ECF No. 136-8 at 14 -100.

         May 7, 2012 - Grievance Committee Decision. On May 7, 2012, the Grievance Committee reconvened, considered the additional evidence, and voted by secret ballot, upholding Dr. Irani’s termination. ECF No. 139-3 at 44 (notification letter).

         May 28, 2012 - Response to ACGME Complaint. On May 28, 2012, Palmetto Health responded to Dr. Irani’s complaint to the ACGME. ECF No. 136-8 at 102-05 (attaching multiple documents).

         June 1, 2012 - Denial of final step in grievance process. Dr. Irani pursued his grievance through the final step, review by Palmetto Health’s chief executive officer, Charles D. Beaman, Jr. Mr. Beaman wrote Dr. Irani on June 1, 2012, stating he had determined the termination was proper and was upholding the decision of the Grievance Committee. ECF No. 139-3 at 45.

         August 2, 2012 - ACGME Decision. On August 2, 2012, the ACGME advised Palmetto Health that it found "no validity to [Dr. Irani’s] complaint and will not pursue any further action related to the complaint." ECF No. 136-8 at 118, 119.

         August 12, 2012 - Summative Evaluation. On August 12, 2012, Dr. Koon completed a "Summative Resident/Fellow Evaluation Form (Non-Graduate)" in which he gave Dr. Irani "Poor" ratings (the lowest of four options) in three areas: patient care and management, interpersonal and communication skills; and overall performance. He ranked Dr. Irani "Fair" (third of four options) in practice-based learning and improvement and "Good" (the second option) in three areas: basic medical knowledge, professionalism, and systems-based practice. ECF No. 157-2 at 2.

         May-June 2013 - Submissions to California Medical Board.

         In late May 2013 Dr. Irani emailed Dr. Koon asking him to complete a two-page form needed to support Dr. Irani’s application for a license to practice medicine in California. ECF No. 136-3 at 136. Because he was aware of communications from Dr. Irani’s attorney to representatives of Palmetto Health in May and August of 2012, warning of potential liability for any impairment of Dr. Irani’s educational and professional prospects, ECF No. 136-3 at 133-35, Dr. Koon sought legal counsel before responding. Koon aff. ¶¶ 40-45. The response Dr. Koon ultimately provided was found deficient by the California Medical Board because of lack of detail, prompting Dr. Irani to write Dr. Koon asking him to complete the form again. Koon aff. ¶ 46; ECF No. 136-3 at 142-45. Dr.

         Koon provided a more complete response after again consulting counsel. Koon aff. ¶ 46; ECF No. 136-3 at 146-48. Dr. Koon’s cover letter, explaining affirmative responses to questions as required by the form, stated as follows:

Dr. Irani underwent GMEC-directed academic remediation during his PGY-2 year. He failed to complete the GMEC-directed remediation measures and was terminated from his position on 10 APR 11 (questions 3, 6, 8). He was not offered a renewal of his contract for the following year (question 9). Dr. Irani satisfactorily completed one month of his PGY-2 training from 01 JUL 11 - 10 APR 11 (question 1). During his PGY-2 year he was placed on Palmetto Health Level III academic remediation which included a leave of absence from his clinical duties (question 2).

ECF No. 136-3 at 146 (letter dated June 13, 2013).

         Dr. Koon also prepared a memorandum dated June 26, 2013, which he understood would be forwarded to the California Medical Board. Koon dep. at 246; ECF No. 157-3 at 2 (Memorandum of Record). This memorandum summarizes Dr. Irani’s history of remediations and includes the following statement:

During his first month on [his second] Level II Remediation, Dr. Irani was involved in two patient encounters that the faculty deemed below acceptable standards. Dr. Irani had failed to demonstrate immediate and sustained improvement as required by his remediation measures. He had failed in the competencies of patient care, interpersonal skills and communication, and professionalism.
It was the recommendation of the orthopaedic faculty to place Dr. Irani immediately on Level III academic remediation (effective 01 MAR 12) and suspend him from clinical duties. We investigated these encounters thoroughly. No reasonable explanation could be identified for his actions, and the faculty recommended to the [GMEC] on 10 APR 12 that Dr. Irani be dismissed from the program. This decision was confirmed by the GMEC, the DIO, the Grievance Committee, and the Palmetto Health Chief Executive Officer during the appeals process.

ECF No. 157-3 at 2.[18]

         DISCUSSION

         Through their three separate motions for summary judgment, Defendants collectively seek dismissal of all causes of action. The court addresses the various arguments in the order in which ...


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