United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON UNITED STATES DISTRICT JUDGE
the Court is Defendants' Renewed Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment (Doc. No. 70).
Plaintiff filed a response (Doc. No. 81), and Defendants
replied (Doc. No. 83). For the reasons stated below,
Defendants' motion will be denied.
Renewed Motion to Dismiss
January 17, 2019, after reviewing the Magistrate Judge's
Report and Recommendation, and Defendants' Objections
thereto, the Court denied Defendants' motion to dismiss
for lack of prosecution. See Singh v. Vanderbilt Univ.
Med. Ctr., No. 3:17-CV-00400, 2019 WL 254660, at *5
(M.D. Tenn. Jan. 17, 2019). The Court reasoned that
“[a]lthough Defendants were prejudiced by the time and
resources spent due to Plaintiff's delay, the Court finds
it significant that Plaintiff did not act willfully, in bad
faith, or with fault in his failure to timely comply with the
Court's orders. Additionally, much of the prejudice to
Defendants is alleviated with the continuance of the trial
date.” Id. at *5.
addition to denying Defendants' motion to dismiss, the
Court also found that Plaintiff had waived his
attorney-client privilege as to communications with his
former attorney in this action, Tracey Kinslow, at least in
part,  based on his inclusion of twenty-three
separate communications with Mr. Kinslow, who represented
Plaintiff at the time the communication was made, filed in
support of his opposition to Defendants' motion to
dismiss. Defendants thereafter subpoenaed all communications
with Plaintiff from Mr. Kinslow, and the subpoena yielded
several communications that Plaintiff had not provided to the
Court in his previous filings. Specifically, Plaintiff left
out an email to his former counsel wherein he stated that
“[a]s a heads up, I sent some paperwork and requests to
the courthouse after speaking with a few people that may or
may not arrive in time, but I am hoping the end goal of
buying more time is achieved with it.” (Doc. No.
59 at ¶ 51) (emphasis added). Additionally, in a series
of text messages the next day, Plaintiff again indicated that
he was attempting to “buy time” with the Court
because he felt overwhelmed. (Id.).
contend that these recently revealed communications undermine
Plaintiff's position taken in his opposition to
Defendants' motion to dismiss that he was essentially a
victim of his then attorney's inept representation and
that his lackluster participation in the discovery process
was not his fault. Defendants contend that “[t]he only
logical conclusion to be gleaned from this lack of attachment
to Plaintiff's Declaration [i.e., lack of prior
filing by Plaintiff of the communications referred in the
prior paragraph] is that Plaintiff did not want the Court to
view these communications that might have potentially cause
his intent to be seen in a different light” and
“the Court should not reward this type of
gamesmanship[.]” (Doc. No. 72 at 10-11). Therefore,
Defendants renew their motion to dismiss for lack of
prosecution and request that the Court dismiss this matter
based on the prior non-disclosure of communications between
Plaintiff and his then-attorney, Mr. Kinslow. (Id.).
revelation of these communications does not change the result
reflected in the Court's prior Order. The Court does not
agree with Defendants that the new communications completely
undermine Plaintiff's position taken in his opposition to
Defendants' motion to dismiss. Although Plaintiff did
state in his email to Mr. Kinslow that he sent letters to the
Court “to buy time, ” the context of the other
communications (text messages) with Mr. Kinslow clearly
demonstrate that relationship problems between Plaintiff and
Mr. Kinslow existed at the time. In response to Mr.
Kinslow's inquiry into Plaintiff's reasoning for
sending his letter to the Court, Plaintiff responded:
I'm sorry if you felt blind sighted [sic] that was not my
intent by any means (and why I sent you email about this). I
am feeling overwhelmed and pressure and I don't have
clarity to many questions. Goal was to ask for more time to
get help. I feel you might be overwhelmed too [Mr. Kinslow]
for many reasons which is why I felt I needed to do something
ASAP. . . . We are scrambling here for something important to
me without Bryan, which isn't ideal.
(Doc. No. 70-5 at 50-53). The letter Plaintiff sent to the
Court did indeed ask for more time to take his deposition.
(Doc. No. 25). In the letter, Plaintiff also outlines the
issues he had experienced with his former counsel, including
Bryan Pieper, his initial counsel whose bar license was
suspended in the midst of this lawsuit (Doc. No. 41), and his
issue with Mr. Kinslow's non-responsiveness. The newly
revealed communications highlight these issues and do not
expose any dishonesty, or attempted “gamesmanship,
” in the Court's view. Plaintiff's (public)
representations to the Court were not, in the Court's
view, inconsistent with his (private) statement to his
attorney that he sought to buy time; someone with the kind of
problems disclosed by Plaintiff to the Court naturally might
seek to buy time to cope with such problems.
upon review of all the communications, the Court stands by
its prior finding that “Plaintiff did not act
willfully, in bad faith, or with fault in his failure to
timely comply with the Court's orders.”
Singh, 2019 WL 254660, at *5. The communications
reviewed in totality reveal serious issues with his former
counsel during the discovery process. Additionally, it is the
Court's strong preference to resolve lawsuits on the
merits, rather than dismissals under Rule 45, except in the
most extreme of circumstances. See Beil v. Lakewood
Eng'g and Mfg. Co., 15 F.3d 546, 552 (6th Cir. 1994)
(“Dismissal is the sanction of last resort.”);
see also Joseph Muller Corp. Zurich v. Societe Anonyme De
Gerance Et D'Armement, 508 F.2d 814, 825 (2d Cir.
1974) (explaining that dismissals for failure of the
plaintiff to prosecute the action are largely a matter for
the district court's discretion (citing Link v.
Wabash R. Co., 370 U.S. 626, 633 (1962))). Therefore,
the Court will deny Defendants' Renewed Motion to
Motion for Summary Judgment
alternative, Defendants seek summary judgment on all of
Plaintiff's remaining claims: Americans with Disabilities
Act (“ADA”) claim based on theories of failure to
accommodate, discrimination, and retaliation; and state law
claims of defamation and tortious interference with a
1, 2014, Plaintiff, Gobind Singh, M.D.
(“Plaintiff”), began an Ophthalmology residency
as a postgraduate year two resident (“PGY-2”) at
Vanderbilt University Medical Center (“VUMC”).
(Doc. No. 94 at ¶ 1). At all times relevant hereto, Dr.
Paul Sternberg served as the Chair of the Ophthalmology
Program and Dr. Laura Wayman served as an Associate
Professor, Vice Chair for Education, and Director of Resident
Education. (Id.). Dr. Donald Brady served as the
Senior Associate Dean for Graduate Medical Education in
addition to the National Residency Match Program Designated
Institutional Official for VUMC. (Id.).
October 2014, Plaintiff began experiencing fatigue, trouble
breathing, and trouble concentrating. (Doc. No. 95 at ¶
12). On October 13, 2014, Plaintiff received a diagnosis of
vestibular stenosis and subsequently took medical leave to
undergo nasal surgery on December 3, 2014. (Doc. No. 94 at
¶ 2). After the surgery, Plaintiff's symptoms did
not improve and instead became worse. (Id.).
December 2014, Plaintiff met with Dr. Wayman and Dr.
Sternberg to discuss ongoing issues. (Doc. No. 95 at ¶ 22).
After this meeting, Dr. Wayman referred Plaintiff to
VUMC's Faculty and Physician Wellness-Work Life
Connections Employee Assistance Program (“EAP”),
telling the EAP director that there were “deficits in
the client's fund of knowledge, work ethic, and sense of
responsibility.” (Doc. No. 94 at ¶ 3; Doc. No. 95
at ¶ 23). Dr. Wayman informed Plaintiff that his
attendance at the EAP sessions was mandatory. (Doc. No. 95 at
¶ 24). Plaintiff believed the purpose of the EAP
referral was to accommodate his disabilities, and he reported
his medical symptoms to the EAP doctor, Chad Buck, M.D.
(Id. at ¶ 25). A January 28, 2015 email from
Dr. Buck to Plaintiff explained that the impetus for the
referral was performance issues, i.e., that referral
was “more about the need to improve [Plaintiff's]
knowledge base than anything about interpersonal
problems.” (Doc. No. 94 at ¶ 3; Doc. No. 95 at
March 24, 2015, Plaintiff was diagnosed with hypothyroidism.
(Doc. No. 94 at ¶ 7). In April 2015, Plaintiff informed
Dr. Wayman of his hypothyroidism diagnosis when he requested
an accommodation to wear extra layers under his surgical
attire to prevent his body and hands from shivering.
(Id.). Dr. Wayman denied the requested accommodation
because the extra layer of clothing would compromise the
sterile field in the operating room. (Id.). Dr.
Wayman allowed Plaintiff to wear additional clothing outside
of the operating room. (Id.).
26, 2015, Dr. Wayman informed Plaintiff that he (Plaintiff)
was being placed on probation. (Id. at ¶ 4). As
part of his probation, Plaintiff was required to attend
scheduled meetings with Dr. Wayman and two other doctors in
the Ophthalmology Department, which were slated to last until
August 31, 2015. (Id.).
15, 2015, Dr. Wayman informed Plaintiff that he was being
placed on suspension based on an alleged patient interaction
that occurred on June 8, 2015. (Id. at ¶ 5;
Doc. No. 95 at ¶ 42). On June 22, 2015, Plaintiff
informed Dr. Brady of his health issues. (Doc. No. 94 at
¶ 8). The next day, Dr. Brady sent Plaintiff an email
stating, “Also, related to the medical issue that you
disclosed to me yesterday, if you believe you need any
accommodations to your residency program going forward,
please contact the Equal Opportunity, Affirmative Action,
and Disability Services [(“EAD”)] office at
322-4705.” (Id.). On June 24, 2015, Dr. Brady
upheld Plaintiff's suspension, extended his probation,
and either revoked his promotion, or decided to not promote
him to PGY-3. (Doc. No. 95 at ¶ 48).
24, 2015, Plaintiff incorrectly administered an injection to
a patient. (Doc. No. 95 at ¶ 49). On July 29, 2015, Dr.
Wayman placed Plaintiff on a second suspension. (Doc. No. 94
at ¶ 6). Plaintiff never returned to work. (Doc. No. 94
at ¶ 12).
September 4, 2015, Plaintiff contacted VUMC's EAD,
through his legal counsel at the time, Richard J. Braun,
requesting a reasonable accommodation. Attorney Braun's
email reads in relevant part:
I have been retained to represent Dr. Singh, a resident in
Ophthalmology who has experienced some medical issues which
have impacted his performance and concentration and which
have now created the potential for serious discipline. I will
try to attach the letter from his treating physician or will
fax it to Nancy soon. Pursuant to the Americans with
Disabilities Act, we are requesting a reasonable
accommodation that at such time as his physician certifies
Dr. Singh is fit for duty that his shifts be limited to 12
hours in duration with 12 subsequent hours off duty until
such time as he is fully recovered.
We also request that any reference to potential discipline or
performance issues be expunged from his record.
Let me know if you have any questions.
(Id. at ¶ 9). On September 2, 2015, Plaintiff
submitted a letter from Dr. Howard Baum regarding his
diagnosis of hypothyroidism in March 2015 which stated, in
part: “[i]n retrospect, in the months before his
diagnosis, he may have suffered from decreased energy and
decreased concentration which could have interfered with job
performance.” (Id. at ¶ 10).
Additionally, Plaintiff submitted a letter from Dr. Scott
Stephan dated September 3, 2015, indicating a diagnosis of
vestibular stenosis with a corrective surgery on December 3,
September 11, 2015, Damian Marshall, a Specialist with
VUMC's EAD office, sent an email to Plaintiff that
explained the accommodation process and provided to Plaintiff
a Request for Reasonable Accommodation Form. (Id. at
¶ 10). On September 21, 2015, Plaintiff submitted to the
EAD office a Request for Reasonable Accommodation Form
(“First Request Form”) prepared by Dr. Baum. Dr.
Baum indicated via the First Request Form that
Plaintiff's condition had been resolved as of July 1,
2015, and that Plaintiff would need not accommodations
“going forward.” (Id. at ¶ 11).
Defendants denied Plaintiff's request made in the First
Request Form on September 25, 2015, on the stated grounds
that Dr. Baum did not indicate a need for accommodations
going forward. (Id.).
October 22, 2015, Plaintiff submitted another Request for
Reasonable Accommodation Form (“the Second Request
Form”). The Second Request Form, prepared by Dr. Susan
Henley, requested several specific accommodations: 1) no
“working without breaks for longer than 8 hours, could
work an additional 4 hours after a 1 hour break”; 2) no
working “longer than a 24 hour shift as long as
appropriate breaks are given throughout one hour of rest for
every six hours of work.” (Id. at ¶ 11).
Defendants denied the Second Request Form on the stated
grounds that Plaintiff was suspended, and therefore not
working at the time, and that thus there was no way to
implement an accommodation. (Doc. No. 95 at ¶ 68). Three
months later, on February 25, 2016, Defendants made a final
decision to move to the Corrective Action of Immediate
Dismissal. (Doc. No. 95 at ¶ 68). Dr. Wayman informed
Plaintiff of his termination. (Id.). Plaintiff
appealed the termination decision, but it was upheld after
review through the appeal process. (Id.).
April 21, 2016, Plaintiff applied for a new residency at New
York Medical Center. (Doc. No. 95 at ¶ 74). As part of
the hiring process, Dr. Brady sent to New York Medical Center
a letter specifying the rotations Plaintiff completed, his
disciplinary history, and the results of his June 2015
evaluations on which he had received low scores.
(Id. at ¶ 75). The letter did not include any
information about Plaintiff's accommodation requests or
complaints to the EAD. (Id. at ¶ 76). After
receiving the letter, New York Medical Center withdrew its
offer to Plaintiff. (Id. at ¶ 80).
March 1, 2017, Plaintiff filed his Complaint in this Court,
asserting four claims against both Defendants: an ADA claim
based on theories of failure to accommodate, discrimination,
and retaliation; a claim under Title VII of the Civil Rights
Act of 1964 (“Title VII”); a state law claims of
defamation; and a state law claim of tortious interference
with a business relationship. (Doc. No. 1). On May 13, 2019,
upon the parties' request, the Court dismissed
Plaintiff's Title VII claim with prejudice. (Doc. No.
77). Defendants have moved for summary judgment as to the
remaining federal (ADA) claim and the two state law claims.
judgment is appropriate where there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). “By its very terms,
this standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). In other words, even if genuine, a factual
dispute that is irrelevant or unnecessary under applicable
law is of no value in defeating a motion for summary
judgment. See Id. at 248. On the other hand,
“summary judgment will not lie if the dispute about a
material fact is ‘genuine[.]'” Id.
is “material” within the meaning of Rule 56(c)
“if its proof or disproof might affect the outcome of
the suit under the governing substantive law.”
Anderson, 477 U.S. at 248. A genuine dispute of
material fact exists if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Harris v. Klare, 902 F.3d 630, 634-35 (6th
Cir. 2018). The party bringing the summary judgment motion
has the initial burden of identifying portions of the record
that demonstrate the absence of a genuine dispute over
material facts. Pittman v. Experian Information
Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018).
If the summary judgment movant meets that burden, then in
response the non-moving party must set forth specific facts
showing that there is a genuine issue for trial. Id.
asserting that a fact cannot be or genuinely is
disputed-i.e., a party seeking summary judgment and a party
opposing summary judgment, respectively-must support the
assertion by citing to materials in the record, including,
but not limited to, depositions, documents, affidavits or
declarations. Fed.R.Civ.P. 56(c)(1)(A). The court should view
the facts and draw all reasonable inferences in favor of the
non-moving party. Pittman, 901 F.3d at 628.
Credibility judgments and weighing of evidence are improper.
Hostettler v. College of Wooster, 895 F.3d 844, 852
(6th Cir. 2018). As noted above, where there is a genuine
dispute as to any material fact, summary judgment is not
appropriate. Id. The court determines whether
sufficient evidence has been presented to make the issue of
fact a proper jury question. Id. The mere existence
of a scintilla of evidence in support of the ...