United States District Court, D. Colorado
IRA S. JAFFREY, M.D., Plaintiff,
PORTERCARE ADVENTIST HEALTH SYSTEM, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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]. 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.
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].
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].
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'
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].
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
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].
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].
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].
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
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.
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.
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).
Claim I - ...