United States District Court, D. Massachusetts
DR. ALEXANDER LIPIN, Plaintiff,
STEWARD HEALTHCARE SYSTEM, LLC, STEWARD MEDICAL GROUP, INC., and HOLY FAMILY HOSPITAL, Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC. NO.,
SOROKIN UNITED STATES DISTRICT JUDGE
Dr. Alexander Lipin, sues Defendants, Steward Healthcare
System, LLC, Steward Medical Group, Inc., and Holy Family
Hospital (collectively “Steward”), for wrongful
termination in violation of the Family and Medical Leave Act,
29 U.S.C. § 2601, et seq. (“FMLA”),
the Americans with Disabilities Act, 42 U.S.C. § 12203
(“ADA”), and Massachusetts statutory law on fair
employment practices, Mass. Gen. Laws. ch. 151B § 4(16)
(“Chapter 151B”). Steward moves for summary
judgment on the grounds that it had decided to terminate
Lipin's employment before Lipin contracted pneumonia and
took any leave from work at Steward. Doc. No. 34. Lipin
opposes. Doc. No. 40.
Court applies the familiar standard governing motions for
summary judgment. The Court views the record in the light
most favorable to the nonmoving party and draws all
reasonable inferences in the nonmoving party's favor.
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st
Cir. 1993). It also ignores “conclusory allegations,
improbable inferences, and unsupported speculation.”
Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir.
Clairmont testified that he decided to terminate Lipin's
employment after receiving the January 16, 2015 report on
Lipin's HIPAA breach, with the only question remaining
being whether termination would be (1) for cause, effective
immediately, or (2) without cause, which required 90
days' notice or pay in lieu of notice. Doc. No. 41 at 15,
31-33. Clairmont also maintained that he contacted
Steward's legal department in January about how to
classify Lipin's termination. Id. at 32.
undisputed evidence establishes that Lipin took sick leave
from Steward for pneumonia beginning on January 26, 2015;
that he informed Steward on February 5 that he would be on
leave until February 17; that he submitted a Leave of Absence
Notification Form on February 10; and that he informed
Steward on February 12 that he needed to extend his leave
until February 23. Id. at 34-37. The record also
indicates that, on February 13, Clairmont learned that Lipin
had continued to work at Anna Jaques Hospital in the mornings
while he was on leave from Steward, id., and that
Clairmont emailed Dr. Alexander that same day: “In my
opinion this may be grounds to term[inate] for cause and if
so how are you guys prepared?” Doc. No. 41-13 at 2.
Steward terminated Lipin's employment without cause by
phone and letter on February 23. Doc. No. 41 at 40.
genuine issue of material fact exists as to whether Steward
made its decision to terminate Lipin (1) before he took leave
on January 26 and (2) before Clairmont learned of Lipin's
continued work for Anna Jaques on February 13. Although no
evidence in the record directly contradicts Clairmont's
account of the termination decision, a factfinder could
reasonably choose to disregard Clairmont's testimony in
light of the lack of any action taken by Steward to arrange
coverage for Lipin's patients or to terminate Lipin's
employment before February 13, especially when this inaction
is contrasted with Steward's concerted steps to fire
Lipin after February 13. These circumstances could support a
reasonable inference that Steward decided to fire Lipin only
after Clairmont learned of Lipin's work at Anna Jaques.
Thus, Steward's primary argument-that there was no causal
connection between Lipin's FMLA leave and his
termination-fails for purposes of summary judgment on
Lipin's FMLA-based claims.
respect to the ADA and Chapter 151B, Lipin alleges disability
discrimination and a failure by Steward to provide reasonable
accommodation. While Lipin's disability discrimination
claims require similar analysis as to whether Clairmont
decided to fire Lipin before or after becoming aware of
Lipin's pneumonia, the record otherwise contains no
support for an inference that Steward fired Lipin
“because of, in whole or in part, his protected
disability.” Tobin v. Liberty Mut. Ins. Co.,
433 F.3d 100, 104-05 (1st Cir. 2005). Lipin fails to
articulate how his termination related at all to his
pneumonia, rather than to his HIPAA breach, his work for Anna
Jaques while having pneumonia, or any other conduct by Lipin
that the record recounts.
Lipin argues that Steward failed to provide a reasonable
accommodation by refusing to engage in an interactive process
to assess his disability and his capacity to work at Steward.
Steward contends that at no point during Lipin's
employment did Steward deny any application for medical leave
or any request for an accommodation of a disability; Lipin
counters that his February 23 termination effectively
rejected his February 20 notice to Steward that he was
extending his leave until March 2. Doc. No. 41 at 40-42.
Lipin's case, further dialogue was not warranted. The ADA
regulations provide: “To determine the appropriate
reasonable accommodation it may be necessary for the
[employer] to initiate an informal, interactive process with
the [employee] in need of accommodation.” 29 C.F.R.
§ 1630.2(o)(3) (emphasis added). Under either
party's theory of the reason for Lipin's termination
(HIPAA breach or working at Anna Jaques while on leave from
Steward), Steward had determined to fire Lipin prior to, and
independent of, his February 20 extension of medical leave.
Whereas Steward had reached an employment decision without
regard to any disability asserted by Lipin, Steward was not
obligated to initiate an interactive dialogue with Lipin
toward an accommodation that would have served only to
forestall his termination. See Furtado v. Standard
Parking Corp., 820 F.Supp.2d 261, 280-81 (D. Mass. 2011)
(observing, in the FMLA context, that “[b]eing on leave
does not insulate an employee from being terminated for
misconduct”); Jones v. Nationwide Life Ins.
Co., 696 F.3d 78, 90 (1st Cir. 2012) (“When an
employee requests an accommodation for the first time only
after it becomes clear that an adverse employment action is
imminent, such a request can be too little, too late.”
Steward's motion for summary judgment is DENIED with
respect to Claims 1 and 2 and ALLOWED with respect to Claims
3 and 4. Within seven days, the parties shall file a joint
status report stating their joint or separate positions as to
(1) whether they request referral to the Court's
mediation program prior to trial, (2) the anticipated
duration of trial, and (3) whether all parties consent to the
exercise of jurisdiction by the magistrate judge assigned to
this case for further proceedings. The parties shall appear
for an initial pretrial conference on Wednesday, May 30, 2018
at 11:00 a.m.
 The Court rejects Steward's
threshold argument-that Lipin's work for another hospital
while on leave from Steward was not within a right protected
under the FMLA. Steward provides no authority in support of
its position that “outside or supplemental employment,
” as addressed under FMLA regulation, 29 C.F.R. §
825.216(e), would not encompass Lipin's work ...