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Chen-Li Sung, M.D v. Keith W. Gallagher

October 13, 2011

CHEN-LI SUNG, M.D.,
PLAINTIFF,
v.
KEITH W. GALLAGHER, IN HIS OFFICIAL CAPACITY AS COMMANDER OF TRIPLER ARMY MEDICAL CENTER; ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff U.S. Army Major Chen-Li Sung, M.D. ("Plaintiff" or "Sung") was terminated from the Tripler Army Medical Center ("TAMC") General Surgery Residency training program on February 9, 2011.*fn1 He filed this action on February 16, 2011 against Defendants Keith W. Gallagher, in his capacity as TAMC Commander; Holly Olson, in her capacities as Director of Medical Education and Chairperson of the TAMC Graduate Medical Education Committee ("GMEC"); and the GMEC itself (collectively "Defendants" or "the Army"). Sung contends his termination from the residency program is void because he was denied due process and it was a pretext for unlawful disability discrimination. See Doc. No. 9 at 15-18, Am. Compl. at 15-18.

Before the court is Defendants' Motion to Dismiss or, in the alternative, for summary judgment, in which they argue that (1) Plaintiff's claims are barred for failure to exhaust administrative remedies, and (2) the court lacks jurisdiction over claims based upon violations of Army regulations. Alternatively, they seek summary judgment on claims for deprivation of procedural or substantive due process. As set forth below, the court agrees that Sung has failed to exhaust available administrative remedies and the failure requires dismissal of the Amended Complaint.

II. BACKGROUND

A. Factual Background

On June 30, 2011, the court denied Sung's Motion for Preliminary Injunction, determining that he failed to establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) a favorable balance of equities, and (4) that an injunction would be in the public interest. See Doc. No. 33, Order Den. Pl.'s Mot. for Prelim. Inj. That Order set forth the details of Sung's termination, reviewed and described the hearing and other process provided by the Army, and analyzed the challenges Sung made to those processes in seeking an injunction. The court draws from that Order in setting forth the background facts here.

Sung graduated from Mount Sinai School of Medicine in New York City with a Doctor of Medicine degree on April 29, 1998. Doc. No. 23-3, Defs.' Opp'n Ex. 2. He began a surgical residency at Saint Barnabas Medical Center in Livingston, New Jersey, on July 1, 1998. Doc. No. 23-4, Defs.' Opp'n Ex. 3. He withdrew from his surgical residency during his second year, and worked in the financial field on Wall Street for the next five years. Doc. No. 23-5, at 4, Defs.' Opp'n Ex. 4, at 3; Doc. No. 23-11, Defs.' Opp'n Ex. 10, at 92.

On March 4, 2005, Sung was appointed as a Captain in the U.S. Army Medical Department ("AMEDD"). Doc. No. 23-2, Defs.' Opp'n Ex. 1. He completed the AMEDD Officer Basic course on May 13, 2005, and was assigned to TAMC to resume a surgical residency on May 14, 2005. Doc. No. 23-5, at 6-8, Defs.' Opp'n Ex. 4, at 5-7. While at TAMC, he received high ratings on his officer evaluation reports from 2005 to 2009. Doc. No. 23-6, at 4-11, Defs.' Opp'n Ex. 5, at 3-10. He began his last year of surgical residency (his chief resident year) on May 14, 2009. Id. at 2, Defs.' Opp'n Ex. 5, at 1.

Sung had difficulties in his chief resident year. Doc. No. 23-7, at 2, Defs.' Opp'n Ex. 6, at 1. In July and August 2009, the general surgery program director, Dr. Ronald Gagliano, counseled Plaintiff. Dr. Gagliano stated that Sung "began avoiding work due to stress." Doc. No. 23-8, at 3; Defs.' Opp'n Ex. 7, at 2. In September 2009, Sung suffered a recurrence of "major depressive disorder," Doc. No. 9 ¶ 11, Am. Compl. ¶ 11, and was on medical leave through November 2009. Doc. No. 23-7, at 2, Defs.' Opp'n Ex. 6, at 1. He returned to full duty on December 1, 2009, but was at a "service remediation" level for sixty days. Id. The "causes of remediation" were listed by Dr. Gagliano as: "work avoidance/hard case avoidance," "poor patient care," "not carrying out the administrative and supervisory duties of a [fifth year resident]," "relying on other residents to do his work and failure of appropriate supervision," and "interpersonal skills and communication, i.e., reporting on other residents' patient assessments as his own." Id. at 2-3. Sung's First Amended Complaint asserts that the late-2009 recurrence of his depression was "attributable to conflicts between [Sung] and two of his superiors in the Department of Surgery who falsely accused [him] of being untruthful[.]" Doc. No. 9 ¶ 12, Am. Compl. ¶ 12.

On February 2, 2010, Dr. Gagliano recommended to the GMEC that Sung be put on probation. Doc. 23-8, at 3-10, Defs.' Opp'n Ex. 7, at 2-9. The recommendation indicated that Sung had "failed [his] required rotation while on service level remediation for January 2010." Id. at 3, Defs.' Opp'n Ex. 7, at 2. It documented, or alleged, certain incidents of substandard performance such as where Sung apparently mis-diagnosed a child who had appendicitis. Id. at 5, Defs.' Opp'n Ex. 7, at 4. (Sung later disputed the details of these incidents. Doc. No. 23-10, at 4-11, Defs.' Opp'n Ex. 9, at 3-10.) Sung accepted the probation plan on February 5, 2010. Doc. No. 23-8, at 2, Defs.' Opp'n Ex. 7, at 1.

On March 3, 2010, Dr. Gagliano relieved Sung of his clinical duties, and recommended he be terminated from the surgical residency program. Doc. No. 23-9, Defs.' Opp'n Ex. 8. Sung refused the proposed dismissal, and provided a lengthy written response disputing many of Dr. Gagliano's details and explaining that he was being treated unfairly. Doc. No. 23-10, Defs.' Opp'n Ex. 9. Sung elected to appear before the GMEC with counsel. Id. at 12, Defs.' Opp'n Ex. 9, at 11. A dismissal hearing was held before the GMEC on March 29, 2010. On April 5, 2010, the GMEC denied Dr. Gagliano's recommendation to terminate Sung. Doc. No. 23-11, at 115, Defs.' Opp'n Ex. 10, at 114. Sung's First Amended Complaint states that the GMEC found Sung "had been compelled to work in a hostile environment." Doc. No. 9 ¶ 12, Am. Compl. ¶ 12.*fn2 Certain conditions, however, were placed on Sung being able to remain in residency training, including allowing Sung to try to transfer to another training program away from TAMC. Doc. No. 23-11, at 115, Defs.' Opp'n Ex. 10, at 114. If such a program was not found, Sung was to resume his residency at TAMC and his probation would be continued. Id. By the end of April 2010, Sung was not able to find a residency program outside TAMC, so he returned to TAMC where he was placed on probation for two months. Id. at 116, Defs.' Opp'n Ex. 10, at 115.

From June to August 2010 Sung performed "adequately" and was rated "satisfactory." Id. at 125-35, Defs.' Opp'n Ex. 10 at 124-34. On September 2, 2010, however, Sung was removed from providing patient care "for medical reasons." Id. at 137, Defs.' Opp'n Ex. 10 at 136. A new acting program director, Dr. Dwight Kellicut, wrote that [Sung's] performance over the last five weeks has degraded substantially, i.e., oversleeping for rounds, sleeping 20 hours at a time, missing meals due to no appetite. Residents report seeing him sleeping excessively in the call room which ...


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