DiGiosia v. Aurora Health Care, Inc.

48 F. Supp. 3d 1211, 30 Am. Disabilities Cas. (BNA) 1174, 2014 U.S. Dist. LEXIS 134516, 2014 WL 4749241
CourtDistrict Court, E.D. Wisconsin
DecidedSeptember 24, 2014
DocketCase No. 12-C-1292
StatusPublished
Cited by3 cases

This text of 48 F. Supp. 3d 1211 (DiGiosia v. Aurora Health Care, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiGiosia v. Aurora Health Care, Inc., 48 F. Supp. 3d 1211, 30 Am. Disabilities Cas. (BNA) 1174, 2014 U.S. Dist. LEXIS 134516, 2014 WL 4749241 (E.D. Wis. 2014).

Opinion

DECISION AND ORDER

WILLIAM C- GRIESBACH, Chief Judge.

Plaintiff Dr. Juliana DiGiosia brought this action against her former employer, Aurora Health Care, alleging that she was placed on leave and ultimately terminated in violation of the Americans With Disabilities Act (ADA) and the Americans With Disabilities Act Amendments Act (ADAAA) of 2008. The Defendant has moved for summary judgment. For the reasons given below, the motion will be granted.

I. Background

Between 2002 and January 8, 2009, Dr. DiGiosia worked as an obstetrician-gynecologist at Aurora’s Oshkosh medical clinic. During her tenure, she was not disciplined or cited for any misconduct either by her employer or by the Wisconsin Medical Board. She also received good per[1213]*1213formance reviews during her employment. During her tenure, some employees and colleagues viewed her with admiration while others became disenchanted with her behavior and personality. Eventually, two significant “sentinel” events — the deaths of two babies — gave rise to an internal peer review and a process that ultimately led to Plaintiffs termination.

According to Aurora, things took a turn for the worse in 2007, after Plaintiffs husband was charged with manslaughter in connection with a car accident. In 2008, Plaintiff was performing a C-section on a patient but had difficulties and was unable to finish it after her arms became tired. A colleague, Dr. Pech, came in to assist and was able to deliver the baby in under a minute. Unfortunately the infant died. Plaintiff believes it was due to disseminated intravascular coagulation, while some of Aurora’s other physicians believe it could have been metabolic acidosis and asphyxia, a direct result of the birthing process, which led to the coagulation. (ECF No. 34 at 28.) The next month a committee was convened to review the procedures during and subsequent to the birth, and during these proceedings the chair of the OB/ GYN department, Dr. Laibly, became concerned about Plaintiffs competence. He noted the fact that Dr. Pech was able to deliver the child in less than a minute after coming to assist, and further noted that the C-section took an unusually long time. (ECF No. 34 at ¶¶ 7-9.) A second review panel concluded that everything was done properly, however. The Defendant expresses little confidence in the second review because all the records were not available and because the blood monitor used was a model unfamiliar to the nurse who used it.

In any event, things continued to go downhill that summer, with colleagues complaining that Dr. DiGiosia was dumping complicated patients on them, leaving work early, and generally not carrying her weight. In August, Plaintiff ordered a nonstress test to assess a fetus’ health because the mother reported a decrease in movement. The test showed non-reactivity, so Plaintiff sent the patient to the hospital for a second test, which Plaintiff read as reactive, meaning that the fetus was moving. In fact, the baby was stillborn two days later. Dr. Laibly believed Plaintiff had misread the second test, which in his view confirmed the first one, i.e., that there was no fetal movement. He also believed Plaintiff was attempting to reduce her treatment of higher-risk patients such as diabetics, and this caused him to lose faith in her practice. (ECF No. 34 at 20-21.) With two infant deaths in one summer — something that was highly unusual — Dr. Laibly began consulting with Plaintiffs other colleagues and initiated a peer review of Plaintiffs treatment. After communicating with Aurora’s regional vice-president, Dr. Devermann, Dr. Lai-bly talked to Dr. Duffy, another colleague, who began the process of having an outside reviewer investigating Plaintiffs conduct. Dr. Laibly also voiced his concerns to the president of the clinic’s management committee, Dr. Kiefer, who investigated matters further and eventually got Aurora human resources involved. On September 19, 2008, Dr. Kiefer met with Plaintiff and informed her that she would be placed on leave — either voluntary or involuntary. Plaintiff requested medical leave. While she was on leave, the other OB/GYN physicians voted 4-1 that she not return to practice with them.

The report from an outside reviewer, Dr. Mason of the Aurora UW Medical Group in Milwaukee, was dated November 19, 2008 and noted several concerns, both with the care provided by Plaintiff as well as some of the record-keeping and interaction between other physicians. (ECF No. [1214]*121436-2 at 39-40.) As Plaintiff notes, however, the report was not a damning indictment of Dr. DiGiosia but simply expressed some concerns and asked for more information. A follow-up report noted that Plaintiff had indeed possibly misread more than one nonstress test result, and indicated concern about Plaintiffs treatment of hypertensive patients.1 (Id. at 41.) The clinic’s peer review committee accepted Dr. Mason’s report and allowed Plaintiff the opportunity to defend her treatment, but ultimately the committee viewed Plaintiff as having significant problems with documentation, interpreting test results and non-standard care of patients. It then referred the matter to the management committee, which had the ultimate say in her employment. According to an email from Dr. Devermann, the peer review committee would be recommending significant corrective actions, including mentoring and additional education, while her colleagues in the OB/GYN department would be recommending termination based on “lost faith and trust in the quality and reliability of her work.” (ECF No. 36-2 at 52.) At a January 2009 management committee meeting, the committee unanimously decided to terminate Plaintiffs employment.

II. Analysis

This ease involves an element of complexity because the ADAAA became effective on January 1, 2009, just days before the Plaintiff was terminated. Plaintiffs claims are two-fold. First, she argues that she suffered an adverse employment action when she was placed on leave in 2008. At that time, the employer’s conduct was governed by the ADA. The second claim involves the termination itself, in January 2009, which is governed by the ADAAA. The differing standards will be discussed below, as relevant.

A. Leave

On September 19, 2008, Plaintiff met with Dr. Kiefer, the head of the clinic management committee, who informed her that she would need to go on leave — either voluntary, medical, or involuntary. Plaintiff opted to take medical leave and submitted the appropriate paperwork to that effect. Plaintiff argues that the forced leave violated the ADA because it was caused by the fact that her employer “regarded” her as disabled.

In order to show she was “regarded as” having a disability under the ADA, an employee must demonstrate either that (1) the employer mistakenly believes that she has a physical impairment that substantially limits one or more major life activities, or (2) mistakenly • believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The ADA thus does not protect anyone who has or is perceived to have any illness; it only protects those who are (or are perceived to be) substantially limited in a major life activity. Toyota Motor Mfg. v. Williams,

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Bluebook (online)
48 F. Supp. 3d 1211, 30 Am. Disabilities Cas. (BNA) 1174, 2014 U.S. Dist. LEXIS 134516, 2014 WL 4749241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digiosia-v-aurora-health-care-inc-wied-2014.