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Breda v. McDonald

United States District Court, D. Massachusetts

December 23, 2015

JOHN BREDA, Plaintiff,
v.
ROBERT A. McDONALD, Secretary, United States Department of Veterans Affairs; WILFREDO CURIOSO, M.D.; SHARON ROUNDS, M.D., and SATISH SHARMA, M.D., Defendants

          For Dr John Breda, Plaintiff: Paul H. Merry, LEAD ATTORNEY, Attorney at Law, Boston, MA; Andrea L. Haas, Law Offices of Paul H. Merry, Boston, MA.

         For Robert A. McDonald, Defendant: Christine J. Wichers, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA.

         MEMORANDUM AND ORDER

         Denise J. Casper, United States District Judge.

         I. Introduction

         Plaintiff John Breda, M.D., (" Dr. Breda" ) has sued Robert A. McDonald, Secretary of the U.S. Department of Veterans Affairs (" VA" ), in his official capacity, Wilfredo Curioso, M.D. (" Dr. Curioso" ), Sharon Rounds, M.D. (" Dr. Rounds" ), and Satish Sharma, M.D. (" Dr. Sharma" ) (collectively, " Defendants" ), asserting claims relating to his termination. D. 11. The VA has moved to dismiss certain claims under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). D. 7. For the reasons stated below, the Court ALLOWS the motion.

         II. Standard of Review

         On a motion to dismiss under Rule 12(b)(6), the Court must determine if the facts alleged " plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Reading the complaint " as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must distinguish the factual allegations from the conclusory legal allegations. Id. Factual allegations are accepted as true, while conclusory legal allegations are not. Id. Second, the Court must determine whether the factual allegations support " the reasonable inference that the defendant is liable for the conduct alleged." Id. (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)) (internal quotation marks omitted). In deciding the motion, the Court may consider " documents the authenticity of which are not disputed by the parties," " official public records" and " documents central to plaintiffs' claim . . . or sufficiently referred to in the complaint." Town of Barnstable v. O'Connor, 786 F.3d 130, 141 n.12 (1st Cir. 2015) (quoting Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993)) (internal quotation mark omitted).

         A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction " is subject to the same standard of review" as a motion to dismiss under Rule 12(b)(6). Castino v. Town of Great Barrington, No. 13-cv-30057-KPN, 2013 WL 6383020, at *1 (D. Mass. Dec. 4, 2013). Courts, however, may consider materials outside the pleadings to resolve jurisdiction. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).

         III. Factual Background

         This summary of facts is based upon the allegations in the amended complaint which the Court must accept as true for the purpose of resolving the motion to dismiss. Dr. Breda is a Massachusetts resident licensed to practice medicine in the Commonwealth. D. 11 ¶ 4. From March 2010 until February 2015, Dr. Breda worked as a part-time emergency room physician at the VA's medical center (" Medical Center" ) in Providence, Rhode Island. Id. ¶ 12. For the first four years, Dr. Breda received annual evaluations that found his performance to be satisfactory or better. Id. ¶ 16.

         In or about May 2014, one or more nurses complained to the VA about Dr. Breda's performance. Id. ¶ 23. Dr. Breda alleges that the complaints were meritless and raised out of personal hostility. Id. ¶ 24. In response to the complaints, Dr. Curioso reviewed a few of Dr. Breda's cases and found fifteen alleged instances of practice shortcomings. Id. ¶¶ 29-30.

         In or about November 2014, Dr. Breda met with Drs. Curioso and Rounds and told them that the shortcomings were insubstantial and that some had been corrected immediately. Id. ¶ 37. In or about December 2014, Dr. Breda proposed that the parties resolve the matter in an alternative dispute process. Id. ¶ 38. He also told Defendants that unless they amicably resolved the issues, he intended to resign. Id. ¶ 42. Defendants initially agreed to an alternative dispute process, but it never took place because the VA moved to terminate Dr. Breda. Id. ¶¶ 43-44.

         On January 7, 2015, Dr. Rounds sent a memorandum to Dr. MacKenzie recommending that the VA terminate Dr. Breda for deficient patient care, medical knowledge and interpersonal and communication skills. D. 13 ¶ 14, D. 13-5. Dr. MacKenzie agreed with the recommendation and sent Dr. Breda a letter dated February 3, 2015 stating that his employment would terminate effective February 13, 2015. D. 11 ¶ 49, D. 15 ¶ 3, D. 15-1. This letter was delivered on the morning of February 6, 2015. D. 15 ¶ 3, D. 15-1. One day later, Dr. Breda emailed Dr. Sharma a resignation letter dated February 1, 2015. D. 15 ¶ 4, D. 15-2. Dr. Breda stated that a signed copy of the resignation letter had been mailed. D. 15 ¶ 4, D. 15-2.

         On February 9, 2015, the Medical Center's medical executive committee decided that Dr. Breda demonstrated substandard care, professional misconduct and professional incompetence and voted to revoke his staff privileges. D. 13 ¶ 15. A day later, a VA human resources employee told Dr. Breda that the VA could not back date his resignation. D. 15 ¶ 5, D. 15-3. The VA documented Dr. Breda's separation as a resignation in lieu of involuntary action, effective February 7, 2015. D. 15 ¶ 6, D. 15-4. In late October 2015, the VA ...


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