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COMMONWEALTH OF MASSACHUSETTS
AND RESEARCH FOUNDATION, INC.
Defendant
Hampden, ss. Superior Court Department
of the Trial Court
Civil Action No. 15-679
FRANCIS J. DUDA, M.D., )
Plaintiff )
) MEMORANDUM OF LAW IN
vs. ) SUPPORT OF MOTION OF
) DEFENDANT FOR A DIRECTED
BAYSTATE MEDICAL PRACTICES, INC...) VERDICT AT THE CLOSE OF
fikfa BAYSTATE MEDICAL EDUCATION) _—‘ PLAINTIFF’S CASE
)
)
L INTRODUCTION
Pursuant to Mass. R. Civ. P. 50(a), Defendant, Baystate Medical Practices, Inc., f/k/a
Baystate Medical Education and Research Foundation, Inc. (“BMP”), submits this memorandum
of law in support of its motion for a directed verdict on Dr. Duda’s age and handicap
discrimination claims. As set forth below, no reasonable jury could conclude based on the
evidence submitted in the plaintiffs case that Dr. Duda’s employment was terminated because of
his age or handicap because there is insufficient evidence of ageist or handicap bias.
Furthermore, because Dr. Duda was capable of meeting all of the requirements of the
Remediation Plan either without accommodation or with accommodations that were provided, no
reasonable jury could conclude that Dr. Duda’s termination for failure to comply with the
Remediation Plan was based on his cerebral palsy.i. DIRECTED VERDICT STANDARD
On a motion for a directed verdict, a judge views the evidence in the light most favorable
to the plaintiff and “‘asks whether reasonable jurors could find by a preponderance of the
evidence that the plaintiff is entitled to a verdict.” Donaldson v. Farrakhan, 436 Mass. 94, 96
(2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A motion for a
directed verdict can properly be granted ‘only where, construing the evidence most favorably to
the plaintiff, it is still insufficient to support a verdict in his favor.” Alholm v. Town of
Wareham, 371 Mass. 621, 627 (1976), quoting DiMarzo v. S. & P. Realty Corp., 364 Mass. 510,
514 (1974).
Ii. TRIAL TESTIMONY
In 1992, BMP, then known as Baystate Medical Research Foundation, hired Dr. Duda
(age 47), who was born with cerebral palsy, as a pediatric pulmonologist in the Pulmonary
Division of the Department of Pediatrics.
During the next twenty-two years, Dr. Duda worked in the Pulmonary Division and
reported to various division chiefs. At times, Dr. Duda was the only physician in the pulmonary
division. Since 2000, Dr. Duda’s BMP evaluations were positive. During his employment,
various individuals in leadership in the Department of Pediatrics asked Dr. Duda, at various
times, if he needed anything to assist him in performing his duties, such as a scooter to help himget around the hospital or parking spot close to the building entrance. On those occasions, Dr.
Duda declined all offers of assistance.
In September 2013, Annabelle Quizon, M.D. (“Dr. Quizon”), became the Chief of the
Division of Pediatric Pulmonology. Dr. Quizon had previously been Division Chief from 2003
to 2007 and had worked with Dr. Duda at that time. When Dr. Quizon became Division Chief in
2013, she, Dr. Duda, and a Nurse Practitioner, Laura Schmidt, were the only providers in the
pulmonary division.
In November 2013, after the departure of the Chair of the Pediatric Department, Laura
Koenigs, M.D. (“Dr. Koenigs”), a BMP employed physician and faculty member of the Pediatric
Department who specializes in adolescent medicine, was asked to be the Interim Chair. Dr.
Koenigs was supported in her interim department leadership duties by Gary Levine, M.D. (“Dr.
Levine”), Vice Chair of Administrative and Clinical Affairs of the Pediatric Department, and
Linda Todaro (“Ms. Todaro”), Director of Pediatric Services. BMP’s Senior HR Consultant,
Kathleen Bachetti (“Ms. Bachetti”) provided human resource support to the Pediatric
Department.
In January 2014, Dr. Quizon informed Dr. Koenigs of certain concerns related to Dr.
Duda’s practice, including Dr. Duda’s team communication, clinical documentation, and
delegation of clinical tasks to nurses, all of which could adversely affect quality of care and
patient safety. As Dr. Koenigs was a not a pulmonologist, she relied on Dr. Quizon as the
pediatric pulmonology division chief for her knowledge of the appropriate standard of pediatric
3pulmonary care. Dr. Quizon also reported to Dr. Koenigs her concern that Dr. Duda was, at that
time, no longer certified in pediatric pulmonology. Dr. Koenigs also learned that at times Dr.
Duda was observed to be trailing off mid-sentence and not making sense.
On February 3, 2014, Dr. Koenigs met with John Schreiber, M.D., BMP’s new President,
and discussed the concerns raised by Dr. Quizon relating to Dr. Duda’s practice. As
recommended by Dr. Schreiber, the Pediatric Pulmonary Division put in place practice
guidelines for all of the providers in the division to follow. The written procedures were
designed to ensure timely and adequate documentation of all patient-related encounters, to
support complete and accurate transfer of information between and among colleagues and staff,
to allow for efficient use of nursing staff time and effort, to promote excellent patient care, and to
safeguard patient safety. On February 11, 2014, Dr. Levine met with Dr. Quizon, Dr. Duda and
the Nurse Practitioner Laura Schmidt to review the procedures. (Exhibit 2).
On February 19, 2014, Dr. Duda left work abruptly because of illness and remained out
of work for a few days. After returning to work on February 24", Dr. Duda developed vertigo,
fell in the outpatient office on February 27", and was brought to Baystate Medical Center’s
Emergency Room to be evaluated. (Exhibit 21). Dr. Duda remained out of work for a few days
following this incident.
With these two incidents occurring so close in time, Dr. Koenigs and the leadership team
had concerns about Dr. Duda’s health and discussed by emails on February 28" and March 2"
whether Dr. Duda should be required to take a fitness for duty examination or provide medical
4documentation that he was fit to return to work. (Exhibit 21). Dr. Duda returned to work on
March 3, 2014 and was not required to undergo a fitness for duty evaluation.
Rather, on March 5, 2014, Dr. Koenigs noted that “we may not be doing patients justice
by focusing on his health issues... There are concerns with his communication with staff and
patients, his responsiveness to pages and calls, asking nurses to work outside the scope of
practice, and his productivity. People are worried about his clinical judgment.” (Ex. 22). Given
the performance concerns noted by Dr. Koenigs, Ms. Bachetti recommended to Dr. Koenigs and
the leadership team that they address those performance concerns through a Remediation Plan.
Dr. Koenigs and Dr. Quizon met on March 7, 2014 to review and modify a draft remediation
plan. (Ex. 23, p. BMP-0364). Dr. Koenigs and Dr. Quizon met with Dr. Duda on March 19,
2014, when Dr. Duda signed the Remediation Plan (Ex. 23, p. BMP-0364; Ex. 24).
Around the time of the March meeting, Dr. Levine again asked Dr. Duda, who because of
difficulty typing his clinical notes, if he would like BMP to hire a personal scribe to assist him
with documentation of in person patient encounters. For the first time, Dr. Duda said that he
would be agreeable to having a scribe. At BMP, physicians could use a keyboard to enter
information directly into patients’ electronic medical records or could dictate the information
into a phone dictation system for entry into the electronic medical record. In March 2014, Dr.
Duda either used the phone dictation system or a nurse or other staff member to act as a scribe
when documenting his outpatient in person patient encounters. Dr. Duda used the phone
dictation system to transcribe documentation of his inpatient in person patient encounters. When
5on call, Dr. Duda could leave a message on the nurses’ telephone line regarding his telephone
calls with patients (or their parents).
On March 24, 2014, Dr. Duda signed the Reasonable Accommodation for Disabled
Persons Request Form seeking the accommodation of a scribe. After obtaining budget approval,
BMP hired a scribe to work solely with Dr. Duda, and the scribe started working in July 2014.
Although the scribe was available to Dr. Duda for transcription of documentation of his inpatient
and outpatient in person patient encounters, the phone dictation system was still available for
documentation of Dr. Duda’s in person patient encounters and the nurses’ telephone line
remained available for documentation of Dr. Duda’s telephone calls with patients (or their
parents).
On October 14, 2014, Dr. Koenigs and Ms. Bachetti met with Dr. Duda to inform him
that he was not meeting the expectations in the Remediation Plan regarding adequate
documentation of patient encounters and communication with colleagues and staff.
On December 9, 2014, Dr. Koenigs met with Dr. Quizon and Ms. Bachetti regarding the
status of the decision regarding Dr. Duda. Because of Dr. Duda’s continued failure to comply
with the requirements of the Remediation Plan, in December 2014, Dr. Koenigs, with input from
Dr. Quizon and Dr. Levine, made the decision to terminate Dr. Duda’s employment.
On January 12, 2015, Dr. Koenigs, with Ms. Bachetti, gave Dr. Duda written notice of
the termination of his employment effective July 12,2015. BMP did not have him work during
the notice period, but did continue to pay all salary and benefits.
6Iv. ARGUMENT
A. NO REASONABLE JURY COULD CONCLUDE THAT DR. DUDA’S
EMPLOYMENT WAS TERMINATED BECAUSE OF HIS AGE OR HIS
CEREBRAL PALSY
In order to prevail on an age discrimination claim, Dr. Duda must prove, among other
_ things, by a preponderance of the evidence that age bias was the determinative cause of BMP’s
decision to terminate Dr. Duda’s employment. Knight v. Avon Products, Inc., 438 Mass. 413,
420-421, 425 (2003); Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). To prevail on his
handicap discrimination claim, Dr. Duda must prove, among other things, that BMP terminated
his employment because of his cerebral palsy. No reasonable jury could conclude that age bias
was the determinative cause of the termination or that Dr. Duda’s employment was terminated
because of his cerebral palsy when there is no evidence of any ageist or handicap bias and Dr.
Duda was capable of meeting all of the requirements in the Remediation Plan either without
accommodation or with accommodations that were provided to him.
1. The evidence of ageist or handicap bias is insufficient.
The only evidence presented by the plaintiff to support a finding of bias are four remarks.
These are not enough to support a verdict in his favor on either his age discrimination or his
handicap discrimination claim. The four remarks are:
e Inan email to new BMP President John Schreiber on February 28, 2014, the day after Dr.
Duda fell in the office and was transported from there to the Emergency Department,
describing Dr. Duda’s health issues (as requested by Dr. Schreiber), Dr. Koenigs listed
Dr. Duda’s recent health incidents at work and stated “He has a history of cerebral palsy
with spasticity.” Exhibit 20.In an email exchange among Dr. Koenigs, Dr. Levine, Kathleen Bachetti, and Linda
Todaro beginning on February 28, 2014, the day after Dr. Duda fell in the office and was
transported from there to the Emergency Department, Dr. Levine stated, “I do think that,
given his underlying frailty and apparent progression of medical problems, we should
insist that he have a complete medical evaluation done in order to determine what are
reasonable expectations for his continued employment — fit for full-time service, part-
time service, medical leave of absence, whatever.” Exhibit 21.
In an email on March 5, 2014, less than a week after Dr. Duda fell in the office and was
transported from there to the Emergency Department, Dr. Koenigs wrote, “This is
incredibly hard for us since the majority of his health issues seem to be from his
increasing frailty with his age and underlying health condition.” Exhibit 22.
In an email on August 31, 2014 discussing the problems she faced in the pediatric
pulmonology division, Dr. Quizon stated, “Francis, at his age and limitations, has habits
which are hard to fix and if attempts are made to correct this, such may be construed as
cruel and callous.” Exhibit 26.
The first three remarks were written in late February and early March 2014, almost immediately
after Dr. Duda fell in the office and was transported to the Emergency Department for medical
treatment and evaluation. They reflect Dr. Koenigs’ and Dr. Levine’s legitimate concern about
whether Dr. Duda’s health would affect his patient care responsibilities. Sullivan v. Liberty Mut.
Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (remark indicated nondiscriminatory managerial concern
rather than bias). They also indicate Dr. Koenigs’ and Dr. Levine’s estimation as medical
doctors that the health issues Dr. Duda was then experiencing were related to his age and
cerebral palsy. Further, the remarks were made approximately nine months before the decision
to terminate Dr. Duda’s employment. See Wynn & Wynn, P.C. v. Massachusetts Comm’n
Against Discrimination, 431 Mass. 655, 667 (2000) (“Stray remarks in the workplace, statements
8by people without the power to make employment decisions, and statements made by decision
makers unrelated to the decisional process itself do not suffice to satisfy the plaintiff's threshold
burden”).
The fourth remark, by Dr. Quizon at the end of August 2014, reflects both that Dr. Duda,
despite being on the Remediation Plan for five months, was not changing his behavior and that
attempts by Dr. Quizon and others to get Dr. Duda to change his behavior were viewed as “cruel
and callous.” Exhibit 26. Dr. Koenigs testified that she understood it to mean that Dr. Duda had
been practicing a long time and had certain ways of doing things. It is undisputed that Dr. Duda
had, at that time, been practicing at BMP for twenty-two years. Sullivan v. Liberty Mut. Ins. Co.,
444 Mass. 34, 49 n. 24 (2005) (manager’s remark that employee “was not adapting to the new
ways of doing business” and was “stuck in the old ways” were ambiguous and could have
reflected legitimate managerial concern regarding an employee who declines to adapt to changed
business practices, rather than a preference for younger workers).
Dr. Quizon’s reference to Dr. Duda’s “limitations,” if it refers to cerebral palsy, could
reflect Dr. Quizon’s perception that attempts to correct his behavior were seen by others, such as
Lori Miller and Beth Russell-Smith, as cruel because Dr. Duda has cerebral palsy. Lori Miller
and Beth Russell Smith testified that they felt that reporting by the nurses concerning Dr. Duda’s
performance problems and refusal of nurses to perform tasks outside their scope of practice were
unfair to Dr. Duda and even that one of the nurses was a “bully.” In the August 31, 2014 email,
Dr. Quizon states, “there is ongoing discord between nurses (by virtue of their title and position)
9vs. ‘old-timers (Lori Miller and Beth Russell-Smith by virtue of their tenure and loyalty to
Francis).” See Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431
Mass. 655, 667 (2000) (“Stray remarks in the workplace, statements by people without the power
to make employment decisions, and statements made by decision makers unrelated to the
decisional process itself do not suffice to satisfy the plaintiff's threshold burden”).
2. Dr. Duda was capable of meeting all of the requirements in the Remediation
Plan either without accommodation or with accommodations that were provided
to him.
The requirements of the Remediation Plan were:
Exhibit 24.
to respond to pages and in a timely manner and remain at work during
administrative time;
request routine elective time away from the office at least three months in
advance;
document patient encounters the same day for urgent visits and within 48 hours
for non-urgent visits;
document telephone consultations by 8 am the next business day either by direct
input into CIS (the electronic medical record program) or by calling the nurses’
phone line;
include an explanation of the significance of abnormal test results with any
request for a nurse to communicate the results to the patient (or patient’s parent);
and
provide name, form, strength, dose, frequency and duration of treatment with
any request for a nurse to submit an order for medication.
10Dr. Duda testified that his cerebral palsy did not prevent him from responding to pages or
remaining at work during his administrative time. Dr. Duda testified that his cerebral palsy did
not prevent him from requesting routine elective time off at least three months in advance.
Multiple witnesses testified that Dr. Duda could and did document patient encounters using
dictation. Dr. Duda testified that his cerebral palsy did not prevent him from providing
information to nurses concerning abnormal test results or prevent him from reporting abnormal
results to patients (or their parents) himself. Finally, there was evidence that Dr. Duda could and
did order medications himself. Dr. Duda testified that his cerebral palsy did not prevent him
from calling in prescriptions himself. Given that the requirements of the Remediation Plan could
be met by Dr. Duda at the time the Remediation Plan went into effect, either with no
accommodation or with accommodations already provided as of February 2014, and which
continued to be provided to him throughout his employment, no reasonable jury could conclude
that Dr. Duda’s termination for failure to comply with the Remediation Plan was based on his
cerebral palsy.
Vv. CONCLUSION
Because no reasonable jury could conclude that Dr. Duda’s termination was caused by
ageist or handicap bias and because it is undisputed that Dr. Duda could meet all of the
requirements of the Remediation Plan either with no accommodation or with an accommodation
that was in place in February 2014 and during the rest of Dr. Duda’s employment, the Court
11should allow BMP’s motion for a directed verdict on Dr. Duda’s age and handicap
discrimination claims.
Dated: June 12, 2018
The Defendant
BAYSTATE MEDICAL PRACTICES,
INC. f/k/a BAYSTATE MEDICAL
EDUCATION AND RESEARCH
FOUNDATION, INC.
By Its Attorney:
own
Mary J. Kennedy -(BBO No. 552345
Jennifer K. Cannon’ BBO No. 664431
Bulkley, Richardson and Gelinas, LLP
1500 Main Street - Suite 2700
P.O. Box 15507
Springfield, MA 01115
Tel: (413) 272-6242; Fax: (413) 272-6803
mkennedy@bulkley.com
jcannon@bulkley.com
Certificate of Service
I, Jennifer K. Cannon, attorney for the defendant, Baystate Medical Practices, Inc., f/k/a
Baystate Medical Education and Research Foundation, Inc., in this above matter, hereby certify
that a true copy of the above document was served upon the attorney of record for each party by
hand on June 12, 2018.
29494441
—_— .
Lown $C
12
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COMMONWEALTH OF MASSACHUSETTS AND RESEARCH FOUNDATION, INC. Defendant Hampden, ss. Superior Court Department of the Trial Court Civil Action No. 15-679 FRANCIS J. DUDA, M.D., ) Plaintiff ) ) MEMORANDUM OF LAW IN vs. ) SUPPORT OF MOTION OF ) DEFENDANT FOR A DIRECTED BAYSTATE MEDICAL PRACTICES, INC...) VERDICT AT THE CLOSE OF fikfa BAYSTATE MEDICAL EDUCATION) _—‘ PLAINTIFF’S CASE ) ) L INTRODUCTION Pursuant to Mass. R. Civ. P. 50(a), Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. (“BMP”), submits this memorandum of law in support of its motion for a directed verdict on Dr. Duda’s age and handicap discrimination claims. As set forth below, no reasonable jury could conclude based on the evidence submitted in the plaintiffs case that Dr. Duda’s employment was terminated because of his age or handicap because there is insufficient evidence of ageist or handicap bias. Furthermore, because Dr. Duda was capable of meeting all of the requirements of the Remediation Plan either without accommodation or with accommodations that were provided, no reasonable jury could conclude that Dr. Duda’s termination for failure to comply with the Remediation Plan was based on his cerebral palsy.i. DIRECTED VERDICT STANDARD On a motion for a directed verdict, a judge views the evidence in the light most favorable to the plaintiff and “‘asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.” Donaldson v. Farrakhan, 436 Mass. 94, 96 (2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “A motion for a directed verdict can properly be granted ‘only where, construing the evidence most favorably to the plaintiff, it is still insufficient to support a verdict in his favor.” Alholm v. Town of Wareham, 371 Mass. 621, 627 (1976), quoting DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974). Ii. TRIAL TESTIMONY In 1992, BMP, then known as Baystate Medical Research Foundation, hired Dr. Duda (age 47), who was born with cerebral palsy, as a pediatric pulmonologist in the Pulmonary Division of the Department of Pediatrics. During the next twenty-two years, Dr. Duda worked in the Pulmonary Division and reported to various division chiefs. At times, Dr. Duda was the only physician in the pulmonary division. Since 2000, Dr. Duda’s BMP evaluations were positive. During his employment, various individuals in leadership in the Department of Pediatrics asked Dr. Duda, at various times, if he needed anything to assist him in performing his duties, such as a scooter to help himget around the hospital or parking spot close to the building entrance. On those occasions, Dr. Duda declined all offers of assistance. In September 2013, Annabelle Quizon, M.D. (“Dr. Quizon”), became the Chief of the Division of Pediatric Pulmonology. Dr. Quizon had previously been Division Chief from 2003 to 2007 and had worked with Dr. Duda at that time. When Dr. Quizon became Division Chief in 2013, she, Dr. Duda, and a Nurse Practitioner, Laura Schmidt, were the only providers in the pulmonary division. In November 2013, after the departure of the Chair of the Pediatric Department, Laura Koenigs, M.D. (“Dr. Koenigs”), a BMP employed physician and faculty member of the Pediatric Department who specializes in adolescent medicine, was asked to be the Interim Chair. Dr. Koenigs was supported in her interim department leadership duties by Gary Levine, M.D. (“Dr. Levine”), Vice Chair of Administrative and Clinical Affairs of the Pediatric Department, and Linda Todaro (“Ms. Todaro”), Director of Pediatric Services. BMP’s Senior HR Consultant, Kathleen Bachetti (“Ms. Bachetti”) provided human resource support to the Pediatric Department. In January 2014, Dr. Quizon informed Dr. Koenigs of certain concerns related to Dr. Duda’s practice, including Dr. Duda’s team communication, clinical documentation, and delegation of clinical tasks to nurses, all of which could adversely affect quality of care and patient safety. As Dr. Koenigs was a not a pulmonologist, she relied on Dr. Quizon as the pediatric pulmonology division chief for her knowledge of the appropriate standard of pediatric 3pulmonary care. Dr. Quizon also reported to Dr. Koenigs her concern that Dr. Duda was, at that time, no longer certified in pediatric pulmonology. Dr. Koenigs also learned that at times Dr. Duda was observed to be trailing off mid-sentence and not making sense. On February 3, 2014, Dr. Koenigs met with John Schreiber, M.D., BMP’s new President, and discussed the concerns raised by Dr. Quizon relating to Dr. Duda’s practice. As recommended by Dr. Schreiber, the Pediatric Pulmonary Division put in place practice guidelines for all of the providers in the division to follow. The written procedures were designed to ensure timely and adequate documentation of all patient-related encounters, to support complete and accurate transfer of information between and among colleagues and staff, to allow for efficient use of nursing staff time and effort, to promote excellent patient care, and to safeguard patient safety. On February 11, 2014, Dr. Levine met with Dr. Quizon, Dr. Duda and the Nurse Practitioner Laura Schmidt to review the procedures. (Exhibit 2). On February 19, 2014, Dr. Duda left work abruptly because of illness and remained out of work for a few days. After returning to work on February 24", Dr. Duda developed vertigo, fell in the outpatient office on February 27", and was brought to Baystate Medical Center’s Emergency Room to be evaluated. (Exhibit 21). Dr. Duda remained out of work for a few days following this incident. With these two incidents occurring so close in time, Dr. Koenigs and the leadership team had concerns about Dr. Duda’s health and discussed by emails on February 28" and March 2" whether Dr. Duda should be required to take a fitness for duty examination or provide medical 4documentation that he was fit to return to work. (Exhibit 21). Dr. Duda returned to work on March 3, 2014 and was not required to undergo a fitness for duty evaluation. Rather, on March 5, 2014, Dr. Koenigs noted that “we may not be doing patients justice by focusing on his health issues... There are concerns with his communication with staff and patients, his responsiveness to pages and calls, asking nurses to work outside the scope of practice, and his productivity. People are worried about his clinical judgment.” (Ex. 22). Given the performance concerns noted by Dr. Koenigs, Ms. Bachetti recommended to Dr. Koenigs and the leadership team that they address those performance concerns through a Remediation Plan. Dr. Koenigs and Dr. Quizon met on March 7, 2014 to review and modify a draft remediation plan. (Ex. 23, p. BMP-0364). Dr. Koenigs and Dr. Quizon met with Dr. Duda on March 19, 2014, when Dr. Duda signed the Remediation Plan (Ex. 23, p. BMP-0364; Ex. 24). Around the time of the March meeting, Dr. Levine again asked Dr. Duda, who because of difficulty typing his clinical notes, if he would like BMP to hire a personal scribe to assist him with documentation of in person patient encounters. For the first time, Dr. Duda said that he would be agreeable to having a scribe. At BMP, physicians could use a keyboard to enter information directly into patients’ electronic medical records or could dictate the information into a phone dictation system for entry into the electronic medical record. In March 2014, Dr. Duda either used the phone dictation system or a nurse or other staff member to act as a scribe when documenting his outpatient in person patient encounters. Dr. Duda used the phone dictation system to transcribe documentation of his inpatient in person patient encounters. When 5on call, Dr. Duda could leave a message on the nurses’ telephone line regarding his telephone calls with patients (or their parents). On March 24, 2014, Dr. Duda signed the Reasonable Accommodation for Disabled Persons Request Form seeking the accommodation of a scribe. After obtaining budget approval, BMP hired a scribe to work solely with Dr. Duda, and the scribe started working in July 2014. Although the scribe was available to Dr. Duda for transcription of documentation of his inpatient and outpatient in person patient encounters, the phone dictation system was still available for documentation of Dr. Duda’s in person patient encounters and the nurses’ telephone line remained available for documentation of Dr. Duda’s telephone calls with patients (or their parents). On October 14, 2014, Dr. Koenigs and Ms. Bachetti met with Dr. Duda to inform him that he was not meeting the expectations in the Remediation Plan regarding adequate documentation of patient encounters and communication with colleagues and staff. On December 9, 2014, Dr. Koenigs met with Dr. Quizon and Ms. Bachetti regarding the status of the decision regarding Dr. Duda. Because of Dr. Duda’s continued failure to comply with the requirements of the Remediation Plan, in December 2014, Dr. Koenigs, with input from Dr. Quizon and Dr. Levine, made the decision to terminate Dr. Duda’s employment. On January 12, 2015, Dr. Koenigs, with Ms. Bachetti, gave Dr. Duda written notice of the termination of his employment effective July 12,2015. BMP did not have him work during the notice period, but did continue to pay all salary and benefits. 6Iv. ARGUMENT A. NO REASONABLE JURY COULD CONCLUDE THAT DR. DUDA’S EMPLOYMENT WAS TERMINATED BECAUSE OF HIS AGE OR HIS CEREBRAL PALSY In order to prevail on an age discrimination claim, Dr. Duda must prove, among other _ things, by a preponderance of the evidence that age bias was the determinative cause of BMP’s decision to terminate Dr. Duda’s employment. Knight v. Avon Products, Inc., 438 Mass. 413, 420-421, 425 (2003); Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). To prevail on his handicap discrimination claim, Dr. Duda must prove, among other things, that BMP terminated his employment because of his cerebral palsy. No reasonable jury could conclude that age bias was the determinative cause of the termination or that Dr. Duda’s employment was terminated because of his cerebral palsy when there is no evidence of any ageist or handicap bias and Dr. Duda was capable of meeting all of the requirements in the Remediation Plan either without accommodation or with accommodations that were provided to him. 1. The evidence of ageist or handicap bias is insufficient. The only evidence presented by the plaintiff to support a finding of bias are four remarks. These are not enough to support a verdict in his favor on either his age discrimination or his handicap discrimination claim. The four remarks are: e Inan email to new BMP President John Schreiber on February 28, 2014, the day after Dr. Duda fell in the office and was transported from there to the Emergency Department, describing Dr. Duda’s health issues (as requested by Dr. Schreiber), Dr. Koenigs listed Dr. Duda’s recent health incidents at work and stated “He has a history of cerebral palsy with spasticity.” Exhibit 20.In an email exchange among Dr. Koenigs, Dr. Levine, Kathleen Bachetti, and Linda Todaro beginning on February 28, 2014, the day after Dr. Duda fell in the office and was transported from there to the Emergency Department, Dr. Levine stated, “I do think that, given his underlying frailty and apparent progression of medical problems, we should insist that he have a complete medical evaluation done in order to determine what are reasonable expectations for his continued employment — fit for full-time service, part- time service, medical leave of absence, whatever.” Exhibit 21. In an email on March 5, 2014, less than a week after Dr. Duda fell in the office and was transported from there to the Emergency Department, Dr. Koenigs wrote, “This is incredibly hard for us since the majority of his health issues seem to be from his increasing frailty with his age and underlying health condition.” Exhibit 22. In an email on August 31, 2014 discussing the problems she faced in the pediatric pulmonology division, Dr. Quizon stated, “Francis, at his age and limitations, has habits which are hard to fix and if attempts are made to correct this, such may be construed as cruel and callous.” Exhibit 26. The first three remarks were written in late February and early March 2014, almost immediately after Dr. Duda fell in the office and was transported to the Emergency Department for medical treatment and evaluation. They reflect Dr. Koenigs’ and Dr. Levine’s legitimate concern about whether Dr. Duda’s health would affect his patient care responsibilities. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (remark indicated nondiscriminatory managerial concern rather than bias). They also indicate Dr. Koenigs’ and Dr. Levine’s estimation as medical doctors that the health issues Dr. Duda was then experiencing were related to his age and cerebral palsy. Further, the remarks were made approximately nine months before the decision to terminate Dr. Duda’s employment. See Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655, 667 (2000) (“Stray remarks in the workplace, statements 8by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself do not suffice to satisfy the plaintiff's threshold burden”). The fourth remark, by Dr. Quizon at the end of August 2014, reflects both that Dr. Duda, despite being on the Remediation Plan for five months, was not changing his behavior and that attempts by Dr. Quizon and others to get Dr. Duda to change his behavior were viewed as “cruel and callous.” Exhibit 26. Dr. Koenigs testified that she understood it to mean that Dr. Duda had been practicing a long time and had certain ways of doing things. It is undisputed that Dr. Duda had, at that time, been practicing at BMP for twenty-two years. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (manager’s remark that employee “was not adapting to the new ways of doing business” and was “stuck in the old ways” were ambiguous and could have reflected legitimate managerial concern regarding an employee who declines to adapt to changed business practices, rather than a preference for younger workers). Dr. Quizon’s reference to Dr. Duda’s “limitations,” if it refers to cerebral palsy, could reflect Dr. Quizon’s perception that attempts to correct his behavior were seen by others, such as Lori Miller and Beth Russell-Smith, as cruel because Dr. Duda has cerebral palsy. Lori Miller and Beth Russell Smith testified that they felt that reporting by the nurses concerning Dr. Duda’s performance problems and refusal of nurses to perform tasks outside their scope of practice were unfair to Dr. Duda and even that one of the nurses was a “bully.” In the August 31, 2014 email, Dr. Quizon states, “there is ongoing discord between nurses (by virtue of their title and position) 9vs. ‘old-timers (Lori Miller and Beth Russell-Smith by virtue of their tenure and loyalty to Francis).” See Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655, 667 (2000) (“Stray remarks in the workplace, statements by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself do not suffice to satisfy the plaintiff's threshold burden”). 2. Dr. Duda was capable of meeting all of the requirements in the Remediation Plan either without accommodation or with accommodations that were provided to him. The requirements of the Remediation Plan were: Exhibit 24. to respond to pages and in a timely manner and remain at work during administrative time; request routine elective time away from the office at least three months in advance; document patient encounters the same day for urgent visits and within 48 hours for non-urgent visits; document telephone consultations by 8 am the next business day either by direct input into CIS (the electronic medical record program) or by calling the nurses’ phone line; include an explanation of the significance of abnormal test results with any request for a nurse to communicate the results to the patient (or patient’s parent); and provide name, form, strength, dose, frequency and duration of treatment with any request for a nurse to submit an order for medication. 10Dr. Duda testified that his cerebral palsy did not prevent him from responding to pages or remaining at work during his administrative time. Dr. Duda testified that his cerebral palsy did not prevent him from requesting routine elective time off at least three months in advance. Multiple witnesses testified that Dr. Duda could and did document patient encounters using dictation. Dr. Duda testified that his cerebral palsy did not prevent him from providing information to nurses concerning abnormal test results or prevent him from reporting abnormal results to patients (or their parents) himself. Finally, there was evidence that Dr. Duda could and did order medications himself. Dr. Duda testified that his cerebral palsy did not prevent him from calling in prescriptions himself. Given that the requirements of the Remediation Plan could be met by Dr. Duda at the time the Remediation Plan went into effect, either with no accommodation or with accommodations already provided as of February 2014, and which continued to be provided to him throughout his employment, no reasonable jury could conclude that Dr. Duda’s termination for failure to comply with the Remediation Plan was based on his cerebral palsy. Vv. CONCLUSION Because no reasonable jury could conclude that Dr. Duda’s termination was caused by ageist or handicap bias and because it is undisputed that Dr. Duda could meet all of the requirements of the Remediation Plan either with no accommodation or with an accommodation that was in place in February 2014 and during the rest of Dr. Duda’s employment, the Court 11should allow BMP’s motion for a directed verdict on Dr. Duda’s age and handicap discrimination claims. Dated: June 12, 2018 The Defendant BAYSTATE MEDICAL PRACTICES, INC. f/k/a BAYSTATE MEDICAL EDUCATION AND RESEARCH FOUNDATION, INC. By Its Attorney: own Mary J. Kennedy -(BBO No. 552345 Jennifer K. Cannon’ BBO No. 664431 Bulkley, Richardson and Gelinas, LLP 1500 Main Street - Suite 2700 P.O. Box 15507 Springfield, MA 01115 Tel: (413) 272-6242; Fax: (413) 272-6803 mkennedy@bulkley.com jcannon@bulkley.com Certificate of Service I, Jennifer K. Cannon, attorney for the defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc., in this above matter, hereby certify that a true copy of the above document was served upon the attorney of record for each party by hand on June 12, 2018. 29494441 —_— . Lown $C 12