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Jaffrey v. Portercare Adventist Health System

United States District Court, D. Colorado

April 4, 2017

IRA S. JAFFREY, M.D., Plaintiff,
v.
PORTERCARE ADVENTIST HEALTH SYSTEM, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Defendant PorterCare Adventist Health System's (“PorterCare” or “Defendant”) Motion for Summary Judgment (the “Motion”). [#31, filed Sept. 9, 2016].[1] The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order Referring Case dated December 9, 2015 [#11]. Upon careful review of the Parties' briefing, the entire case file, applicable law, and the arguments offered during the November 30, 2016 motion hearing, the Motion is GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         Plaintiff Ira S. Jaffrey (“Plaintiff” or “Dr. Jaffrey”) initiated this action on October 16, 2015, at the age of seventy-six (76). [#1]. Plaintiff, a Colorado licensed physician and board certified oncologist, began working as a part-time (“locum tenens”) oncologist at Defendant's facility, Mile High Oncology (“MHO”), in April 2014. [Id. at ¶¶ 4, 9]. However, around July 2014, the employment relationship soured and Defendant terminated Plaintiff on or about July 24, 2014. [Id. at ¶¶ 5-11]. Plaintiff alleges that Defendant discriminated against him because of his age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA” or “Act”), 29 U.S.C. § 621 et seq. (Claim I). [Id. at ¶ 1, 20]. Plaintiff also brings common-law claims for breach of contract (Claim II) and promissory estoppel (Claim III) against Defendant. [Id. at ¶¶ 21-24].

         On January 4, 2016, Defendant filed its answer. See [#12]. Then, on January 19, 2016, the undersigned held a Scheduling Conference, setting the following deadlines: (1) March 4, 2016, for joinder of parties and amendment of pleadings; (2) July 22, 2016, for discovery cut-off; and (3) August 19, 2016, for filing dispositive motions. [#18; #19]. On August 22, 2016, the court extended the deadline for filing dispositive motions to September 9, 2016. [#30].

         On September 9, 2016, Defendant filed the instant Motion, to which Plaintiff responded, and Defendant replied. [#31, #32; #38]. On November 30, 2016, the court held a motion hearing and took the Motion under advisement. [#41]. With leave of court, both parties filed supplements to their briefing on December 9, 2016. See [#44; #45]. The Motion is ripe for resolution, and the court considers the Parties' arguments below.

         MATERIAL FACTS[2]

         As mentioned, Plaintiff is a Colorado physician, board certified in oncology. [#32 at 3]. At the time of filing this suit, Plaintiff was seventy-six years of age. [Id.]. Defendant is a Colorado nonprofit corporation and, starting in April 2014, employed Plaintiff to provide locum tenens oncology services at MHO. See [id.; #31 at 2]. In doing so, Plaintiff entered into an Independent Healthcare Provider Services Agreement with All-Star Recruiting Locums, LLC (“ASR”)-a company that refers locum tenens physicians as well as permanent physicians for placement at hospitals. See [#31 at 2; #31-2 at 22:14-23:6]. Accordingly, Plaintiff's agreement with ASR governed his locum tenens services while working for Defendant. See [#1 at ¶ 11; #31 at 2; #31-2 at 51-58].

         Not soon after his April 2014 start date, Plaintiff began negotiating a two-year position at MHO with Defendant's agents Larry Novissimo and Ken LeBlanc, both of whom recruited physicians for Mile High Oncology. [#31 at 2; #31-2 at 15:25-16:4; #31-4 at 36:3-17; #31-6 at 1-2; #32-5; #32-6 at 67:7-68:3]. Though not entirely clear, it appears that these discussions occurred largely in May, June, and July 2014, and focused on a variety of employment terms. See generally [#31 at 3-4]. These terms included, inter alia, Plaintiff's yearly compensation, a signing bonus, how many days a week he would work (i.e., full-time equivalent (“FTE”)), his “on-call” responsibilities, his membership and licensing fees, his dental, health, and retirement benefits, as well as additional compensation for attending meetings, conferences, and seminars. See generally [#31-2 at 12:14-13:19, 14:15-18, 15:4-7, 32:23-33:3, 38:18-24; #31-5 at 113:19- 115:4].

         On or about May 16, 2014, Dr. Jaffrey and Mr. Novissimo had a phone conversation regarding a potential two-year employment contract with a yearly salary between $240, 000 and $250, 000 for .75 FTE (i.e., working three and one-half days out of the week). See [#31-3 at 53:13-17; #31-5 at 49:16-50:1, 51:12-14; #31-6 at 1]. However, it appears that Dr. Jaffrey was unwilling (and even a bit insulted) to accept a salary in that range given his forty-five years of experience and reputation in the oncology community. See, e.g., [#31-2 at 13:10-11, 14:4-18, 52:21-53:5; #31-4 at 49]. Rather, Plaintiff counter-offered with a guaranteed salary of approximately $400, 000 to $450, 000 in addition to a $40, 000 signing bonus split over the two-year term. See [#31-2 at 13:10-11, 14:4-18, 31:3-14; #31-3 at 37; #31-4 at 49]. According to a May 29, 2014 email, Mr. Novissimo informed Plaintiff that Defendant could not agree to his counter-offer, but that he would work on an offer in the $300, 000 range. [#31-4 at 49; #31-6 at 4-5]. That same day, Mr. LeBlanc indicated that, pursuant to Defendant's compensation model, Defendant would be willing to offer Plaintiff a yearly salary of $287, 723, and that he would seek approval for a one-time singing bonus of $20, 000. See [id. at 48]. Ultimately, Cheryl Curry (Defendant's Chief Financial Officer for Littleton Adventist Hospital) approved a $15, 000 one-time signing bonus. See [id. at 47].

         Then, on June 6, 2014, Mr. LeBlanc emailed Plaintiff a “draft employment contract” so he could review the legal language, as well as the approved compensation model of $287, 723 yearly with a one-time $15, 000 signing bonus. See [#31-2 at 30:14-18; #31-4 at 91:7-23; id. at 50; #31-7 at 13]. On June 19, 2014, Plaintiff and Mr. Novissimo had a follow-up call regarding the potential employment agreement. [#31-6 at 2]. During this call, the two discussed Plaintiff's 401(k) benefits, Plaintiff's request to have the signing bonus increased to $20, 000 and potentially split the signing bonus over two years, and his request to have the 90-day termination provision increased to 180 days. See [#31-5 at 54:12-62:18; #31-6 at 2]. On June 24, 2014, Mr. Novissimo emailed Mr. LeBlanc about his June 19 phone conversation with Dr. Jaffrey. See [#31-6 at 8]. In this email, Mr. Novissimo informed Mr. LeBlanc that Plaintiff, in response to the approved compensation model, again requested that the signing bonus be increased to $40, 000 split between the two-year term, and that Plaintiff requested approval of a 180-day termination provision, despite Mr. Novissimo's explanation that 90 days was nonnegotiable. See [id.]. Later that day, Mr. Novissimo emailed Geoff Lawton (Defendant's Vice President of Operations) that both he and Mr. LeBlanc agreed that Defendant's best offer to Dr. Jaffrey was $287, 723 yearly with a one-time signing bonus of $15, 000, and that it would be Plaintiff's decision whether to accept or deny it. See [#31-4 at 52].

         According to Plaintiff, Mr. Novissimo offered him the job on July 8, 2014, despite ongoing negotiations. See [#1 at ¶ 5; #31-3 at 71:3-5; id. at 47]. Plaintiff maintains that the Parties had negotiated all essential terms of the agreement, e.g., compensation and signing bonus, work schedule, retirement, medical and dental benefits, length of employment, coverage at other clinics and other miscellaneous benefits, and that, upon his return from his July 11, 2014 vacation, a completed contract would be ready for his signature. See generally [#32-1 at 18:11- 20, 20:15-18, 29:15-22, 30:14-31:6, 32:23-33:10; #31-3 at 71:5-23]. Conversely, Defendant contends that the Parties had yet to reach an agreement as to Plaintiff's compensation and signing bonus, his on-call responsibilities, his work schedule, or the 90-day termination provision. See generally [#31 at 4-6; #31-4 at 34:22-23, 40:1-7; 50:2-4]. According to Defendant, it is only after the parties reach an agreement on all terms that it offers a contract to the potential employee. See, e.g., [#31-5 at 93:7-24, 110:24-111:5].

         Nevertheless, on July 21, 2014, Mr. Novissimo and Mr. LeBlanc called Dr. Jaffrey and informed him that Defendant was terminating the employment negotiations. See [#1 at ¶ 6; 31-4 at 35:16-19; #31-5 at 68:24-69:7; #32-1 at 20:19-22]. Plaintiff testified that Defendant withdrew the employment contract because it “wished to offer it to a younger physician.” [#32-1 at 20:21-22, 21:18-21]. Defendant did in fact hire two younger oncologists for positions at MHO in the fall of 2014-Drs. Link (66 at .6 FTE) and Log (35 at 1.0 FTE). See generally [#31-4 at 67:21-68:3]. However, according to Plaintiff, he and Mr. Novissimo entered into an oral contract to extend his locum tenens services to December 31, 2014, despite the revocation of the two-year employment contract. See [id. at 20:4-13].

         About July 25, 2014, ASR informed Plaintiff that Defendant had terminated Plaintiff's locum tenens contract at MHO. See [#1 at ¶ 11; #31-3 at 47]. Subsequently, Plaintiff contacted his attorney to memorialize his recent turmoil with Defendant. See [#31-3 at 72:6-16; id. at 47]. Then, on or about October 27, 2014, Plaintiff filed an age discrimination charge against Defendant with the Equal Employment Opportunity Commission (“EEOC”). See [#32-3; #32-7]. Finally, Plaintiff commenced the instant action on October 16, 2015. [#1].

         LEGAL STANDARD

         Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248.

         If the moving party demonstrates an absence of evidence supporting an essential element of the opposing party's claims, the burden shifts to the opposing party to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To satisfy this burden, the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. Id.; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). “[A] mere ‘scintilla' of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.'” Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         ANALYSIS

         I. Claim I - ...


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