United States District Court, D. Utah
EDWARD G. HUNTER, Plaintiff,
HCA, et. al., Defendants.
REPORT AND RECOMMENDATION
B. PEAD UNITED STATES MAGISTRATE JUDGE
case is currently before Magistrate Judge Dustin Pead
pursuant to a 28 U.S.C. §636(b)(1)(B) referral from
District Court Judge Jill Parrish. (ECF No. 8.) Mr. Edward G.
Hunter (“Plaintiff”) brings this action against
Defendants (collectively “Defendants” or
“ORMC”) alleging claims of deprivation of due
process, breach of contract, violation of the Americans with
Disability Act (“ADA”) or Rehabilitation Act,
violation of Title VII of the Civil Rights Act of 1964,
defamation, retaliation, harassment, and violation of
Utah's drug testing laws. (Amended Complaint (“Am.
Compl.”), ECF No. 36.)
filed a motion to dismiss the amended complaint pursuant to
Federal Rule Civil Procedure 12(b)(6). Attached to the motion
is approximately 59 pages consisting of various letters,
emails, and legal documents from the administrative action
with the Division of Occupation and Professional Licensing
(“DOPL”). On September 11, 2018, this court
converted Defendants' motion to one for summary judgment
pursuant to Federal Rule Civil Procedure 12(d) because the
introduction of those documents constituted matters outside
of the pleadings. (ECF No. 50.)
each party was afforded an opportunity to submit all
pertinent material to a summary judgment motion. Id.
Briefing concluded in December of 2018. The court has
carefully reviewed and considered the parties' summary
judgment briefs. Pursuant to civil rule 7-1(f) of the Rules
of Practice for the United States District Court for the
District of Utah, the court concludes oral argument is
OF ACTIONS DISMISSED
Memorandum in Response to Defendants' Motion for Summary
Judgment (“Opposition”), Plaintiff supports
dismissal with prejudice of many of his claims. (Opposition,
ECF No. 53 at 13, 15-17.) Plaintiff, however, requests the
court deny summary judgment as to his first and second causes
of action (breach of contract claims) and permit him leave to
amend his ADA or Rehabilitation Act claim. Accordingly, the
court RECOMMENDS the District Court dismiss all of
Plaintiff's constitutional, criminal, and common law
claims with prejudice consistent with the agreement of the
parties. In turn, this Report and Recommendation addresses
the remaining causes of actions and for the reasons set forth
herein, the court RECOMMENDS the District Court GRANT
Defendants' Motion for Summary Judgment
(“Motion”) as to the remaining claims. (ECF No.
2002 to 2017, Plaintiff was employed by Utah Imaging
Associates (“UIA”) as an interventional
radiologist physician assistant. Am. Compl. at 4, ¶9.
Plaintiff had privileges at ORMC, as well as other hospitals,
to perform radiology and minimally invasive in-patient and
out-patient procedures. Id. During Plaintiff's
time at ORMC, Plaintiff experienced significant personal
issues that, as he acknowledges, compromised the safety of
patients and co-workers. See Motion at 3, ¶3;
Opposition at 4, ¶3; see also Plaintiff's
December 5, 2016 Letter to DOPL (“DOPL Letter”),
(ECF No. 53-2 at 3.)
such example occurred on October 24, 2016, when Plaintiff
acted erratically during an interventional radiology
procedure with a pediatric patient. As a result, another
physician intervened. See Motion at 3, ¶4;
Opposition at 4-5, ¶4. Plaintiff became angry, broke
sterility protocol, and began yelling and screaming.
See Motion at 3, ¶5; Opposition at 5, ¶5.
Also, staff members at ORMC noticed Plaintiff sleeping at his
desk while on duty, was difficult to rouse, and appeared
heavily intoxicated during this same time period.
See Motion at 3, ¶6; Opposition at 5, ¶6;
see also DOPL Stipulation and Order, (ECF No. 51-1
at 3); DOPL Letter at 2. Plaintiff denies being intoxicated;
however, he does admit using prescription medication that
made him drowsy or could have made him appear intoxicated.
See Opposition at 5, ¶6.
October 28, 2016, ORMC conducted what Plaintiff has described
as an intervention to discuss his problems. See DOPL
Letter at 2. According to ORMC's bylaws, a collegial and
educational intervention “…is used to address
issues pertaining to clinical competence or professional
conduct.” ORMC Bylaws, (ECF No. 53-1 at 3-4.) Such
interventions are used “… to prompt voluntary
actions by the individuals to resolve an issue that has been
raised, …prior to resorting to formal corrective
action, …and [do] not afford the individual subject to
such intervention to a Hearing and Appeal….”
the October 28th intervention, Plaintiff was asked
to submit to a drug test, which he did. See DOPL
Letter at 2. Subsequently, the drug test results confirmed
Plaintiff was taking his prescription narcotics and
benzodiazepines. See Motion at 4, ¶9;
Opposition at 7, ¶9. Plaintiff further referred to the
levels as “toxic”. DOPL Letter at 2. In turn, UIA
requested Plaintiff meet with DOPL to discuss his problems,
which he did. See DOPL Letter at 2.
October 28, 2016 and November 2, 2016, ORMC received
complaints on its Ethics and Compliance hotline regarding
unprofessional conduct by Plaintiff. See Motion at
4, ¶10; see also November 2, 2016, email from
Brian Lines to Brett Palmer (“Lines email”), (ECF
No. 53-3 at 2.) Consistent with the Ethics and Compliance
policy, ORMC conducted an investigation, which included
interviewing multiple sources who validated the claims
submitted via the Ethics hotline. See Lines email at
2; see also Ethics and Compliance policy, ECF No.
51-1 at 11-15. As a result of the Ethics and Compliance
hotline investigation, ORMC requested that Plaintiff not
return work at ORMC. See Lines email at 2; DOPL
Letter at 3. On December 1, 2016, Plaintiff resigned his
privileges at ORMC. See Resignation Letter, (ECF No.
53-4 at 2.) Thereafter, Plaintiff self-reported his actions
to DOPL. See DOPL Letter at 2-3.