The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Plaintiff Alexander A. Stratienko ("Plaintiff") moves the Court to grant partial summary judgment, arguing Plaintiff can no longer be suspended based upon the underlying conduct at issue due to an alleged waiver and estoppel (Court File No. 50).*fn1 For the following reasons, the Court will DENY Plaintiff's motion for partial summary judgment (id.).
On September 16, 2004, there was an altercation between Plaintiff and defendant Monroe (Court File No. 1, Exhibit 1, p. 5). At some point before that date, Plaintiff conveyed concern to defendant Fisher as to whether Monroe was qualified to serve on a committee which credentialed physicians to place carotid stents, as Plaintiff believed Monroe to lack sufficient experience and credentials (id.). When Monroe learned of this conversation, he confronted Plaintiff in the break room (id., p. 6). According to Plaintiff,*fn2 Monroe, who was standing in the doorway, demanded Plaintiff stop questioning his training and threatened to sue Plaintiff (id.). Plaintiff, with one hand, moved Monroe aside and excited through the now-open doorway (id.). Monroe immediately reported the incident (id.).
Based upon this altercation, a peer review was conducted and Plaintiff was suspended for thirty days (Court File No. 1, Exhibit 1, pp. 6-7; Court File No. 51, Exhibit B). Plaintiff filed a complaint in state court and obtained a temporary restraining order, which prevented defendant Hospital Authority from continuing Plaintiff's suspension pending resolution of the complaint (Court File Nos. 50, p. 2; 70, Exhibit 3).
In the normal course of business, Hospital Authority is required to renew the appointment of its physicians every two years, which permits its physicians continued use of the hospital resources and facility (id.). Plaintiff was up for renewal of his appointment in 2005 (id.). Having been enjoined from continuing his suspension based upon the disputed sufficiency of the peer review leading to his suspension, Defendant renewed Plaintiff's appointment for a two-year period (Court File No. 4, p. 2). The letter sent to Plaintiff, informing him of the approval of his 2005 reappointment application, made no mention of the suspension or temporary restraining order (see Court File No. 50, Exhibit B).*fn3
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). That is, the moving party must provide the grounds upon which it seeks summary judgment, but does not need to provide affidavits or other materials to negate the non-moving party's claims. Celotex, 477 U.S. at 323. The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, and must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
Plaintiff now moves for partial summary judgment, arguing because the 2005 reappointment letter did not contain language making that renewal contingent on the outcome of this litigation or the existence of the temporary restraining order enjoining the thirty-day suspension, Hospital Authority, and all other defendants, have waived their ability to uphold the suspension (Court File No. 50).*fn4 As such, Plaintiff argues defendants are precluded from pursuing the summary suspension, and seeks partial summary judgment on that issue (id.).*fn5
Thus, the issue before this Court is whether the Hospital Authority's lack of reference to the thirty-day suspension or the temporary restraining order in the 2005 renewal preclude Plaintiff's future suspension through the principles of wavier or estoppel. Because Plaintiff has failed to satisfy the essential elements to establish waiver and estoppel, the Court will DENY Plaintiff's motion for partial summary judgment.
"Waiver is a voluntary relinquishment by a party of a known right." Arista Records, LLC v. Chumley, 2008 Tenn. App. LEXIS 363, *14 (Tenn. Ct. App. June 24, 2008) (citing Reed v. Washington County Bd. of Educ., 756 S.W.2d 250, 255 (Tenn. 1988)). A waiver can be express or implied. "An express waiver is an oral or written statement giving up known rights or privileges. An implied waiver occurs when a party's conduct, although perhaps not the party's words, shows the party's conscious choice to give up rights or to forego benefits. To amount to a waiver, the conduct must be the result of a conscious, voluntary choice, and must provide clear, unequivocal, and decisive evidence of the party's intent and purpose to forego a right or benefit." Grimsley v. Kittrell, 2006 Tenn. App. LEXIS 633, *10 (Tenn. Ct. App. Sept. 29, 2006) (citations omitted).
Plaintiff alleges Hospital Authority implicitly waived its right to continue pursuit of Plaintiff's suspension because his reappointment letter made no reference to his suspension (Court File No. 50). However, Hospital Authority was enjoined by a temporary restraining order of a state court from continuing Plaintiff's suspension (see Court File No. 70, Exhibit 3). Due to this temporary restraining order, Hospital Authority's Board of Trustees did not consider Plaintiff's suspension in determining whether he would be reappointed to active status with the hospital (see Court File Nos. 70, p. 2; 72, p. 8; 77, p. 4).*fn6 Plaintiff provides no basis for this Court to conclude that Hospital Authority, or any other defendant, intended to forego any future suspension of Plaintiff based upon the facts underlying this litigation. Whether Plaintiff's reappointment letter was not qualified due to an oversight or because of the temporary restraining order, this lack of qualification does not indicate a conscious intent to forego Plaintiff's suspension. Plaintiff has failed to provide "clear, unequivocal, and decisive evidence" of a ...