United States District Court, D. Hawaii
DAVID E. HENRY, M.D., Plaintiff,
ADVENTIST HEALTH CASTLE MEDICAL CENTER and ALAN CHEUNG, M.D., Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT, ECF NO.
A. OTKE JUDGE.
David E. Henry, M.D. (“Plaintiff”) asserts claims
for violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-5 et seq.,
against Defendant Castle Medical Center, dba Adventist Health
(“Defendant”). Compl., ECF No. 1. Plaintiff alleges
that Defendant discriminated against him because of his race
and retaliated against him after he complained about the
before the Court is Defendant's Motion for Summary
Judgment, ECF No. 37. Based on the following, the Court
GRANTS Defendant's Motion for Summary Judgment.
is a board-certified general and bariatric surgeon, who
completed his general surgery residency in 2014 and his
bariatric surgery fellowship in 2015. Def.'s Concise
Statement of Facts (“CSF”) ¶ 1, ECF No.
38.Plaintiff is licensed to practice medicine
in Hawai'i. Id. ¶ 2. He specializes in
state-of-the-art laparoscopic and minimally invasive surgery.
Id. Plaintiff entered into a Physician Recruitment
Agreement (“Recruitment Agreement”) and an
Emergency Department Call Coverage and Uninsured Patient
Services Agreement (“On-Call Agreement”) with
Defendant in 2015. Id. ¶¶ 4, 5; Def.'s
Ex. 2, ECF No. 38-5; Def.'s Ex. 11, ECF No. 38-14. Under
the Recruitment Agreement, Plaintiff was to operate a
full-time private practice of medicine in his specialty on
Oahu.CSF ¶ 4. Under the On-Call Agreement, Plaintiff
agreed to be on call for Defendant's emergency department
at least five days per month. Id. ¶ 6.
September 1, 2015 to June 28, 2016, Plaintiff was a member of
Defendant's medical staff, was granted clinical
privileges at Defendant's hospital, and performed both
general and bariatric surgeries at the hospital. Id.
¶ 3. Plaintiff leased space at the hospital's
outpatient clinic for his private medical practice.
Id. ¶ 22. Plaintiff was allowed to use
Defendant's operating rooms for his private patients upon
request. Id. ¶ 23. Plaintiff also had clinical
privileges and performed general surgeries at The Queen's
Medical Center. Id. ¶ 19.
who is Caucasian, allegedly complained to Defendant of
discrimination. Decl. of David E. Henry, M.D. (“Henry
Decl.”) ¶¶ 2, 22, ECF No. 41-1. After this
complaint, Defendant initiated a peer review of seven of
Plaintiff's surgeries. Id. ¶¶ 9, 22.
As a result of this peer review, Defendant suspended
Plaintiff's clinical privileges and terminated the
On-Call Agreement in June 2016. Id. ¶ 9. It
appears that Defendant's Medical Executive Committee
(“MEC”) then conducted a review of
Plaintiff's cases and issued recommendations via letter
in August 2016. See Pl.'s Ex. E, ECF No. 40-8.
Fair Hearing Panel upheld the MEC decision with some
additional recommendations in September 2017,  and
Defendant's appeal board upheld the MEC decision in
January 2018. Henry Decl. ¶ 11; Pl.'s Ex. E, ECF No.
40-8; Pl.'s Ex. F, ECF No. 40-9. According to Plaintiff,
no patient ever complained about the quality of
Plaintiff's care, and a review of the relevant cases by
Dr. Garth Jacobsen, a professor of surgery, found that
Plaintiff met the standard of care. Henry Decl. ¶¶
Plaintiff filed the Complaint pro se on February 2, 2018,
alleging one count of racial discrimination and one count of
retaliation for engaging in protected activities. ECF No. 1.
On September 10, 2018, Defendant filed a Motion for Summary
Judgment (the “Motion”), ECF No. 37, and a
Concise Statement of Facts in support of the Motion, ECF No.
38. On October 11, 2018, Plaintiff filed pro se his
Opposition, ECF No. 40, and his Responsive Concise Statement
of Facts, ECF No. 41. On December 14, 2018, a hearing was
held at which Plaintiff was represented by counsel.
STANDARD OF REVIEW
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil
Procedure 56(a) mandates summary judgment “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Broussard v. Univ. of Cal. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323). “When the moving
party has carried its burden under Rule 56[(a)], its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts [and] come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“[A] party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific
facts showing that there is a genuine issue for trial.”
(citation and quotation marks omitted)).
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his
favor.” (citations omitted)).
initial matter, Plaintiff's attorney, Mr. John Winnicki,
advised the Court at the hearing that another attorney, Mr.
Robert Meals, had edited Plaintiff's pro se pleadings.
Accordingly, the Court addresses whether Plaintiff's pro
se filings should be construed liberally and concludes that
it will “liberally construe the ‘inartful
pleading'” of Plaintiff. Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
Court is concerned by the fact that Plaintiff filed several
pleadings as a pro se litigant when, in actuality, he
received some assistance from an attorney in drafting those
filings. Generally, the Court construes pro se filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” (internal citations,
quotation marks, and italics omitted)). However,
“allowing a pro se litigant to receive such latitude in
addition to assistance from an attorney would disadvantage
the nonoffending party.” Smallwood v. NCsoft
Corp., 730 F.Supp.2d 1213, 1222 (D. Haw. 2010) (quoting
Ricotta v. State,4 F.Supp.2d 961, 986 (S.D. Cal.
1998)); see also Casumpang v. Hawaiian Commercial &
Sugar Co., 2013 WL 6191087, at *7 (D. Haw. Nov. 25,
2013), aff'd, 712 Fed.Appx. 709 (9th Cir. 2018).
Further, such “ghost-writing” by an attorney