Rosen & Goyal, P.C.

Experienced. Sophisticated. Effective.

Doctor Fired For Taking Medical Leave

by | May 17, 2018 | Employment & Discrimination

Case Survives Summary Judgment

This article appeared in Law 360


Steward Must Convince Jury Doc Fired For HIPAA Violation

By Chris Villani


Law360, Boston (May 16, 2018, 3:54 PM EDT) — Steward Healthcare System LLC will need to convince a jury it fired a psychiatrist for violating the Health Insurance Portability and Accountability Act and not because, as the doctor claims, he took disability leave after getting pneumonia, a Massachusetts federal judge ruled Wednesday in denying part of a summary judgment bid.

Dr. Alexander Lipin sued Steward, Steward Medical Group Inc. and Holy Family Hospital in a case removed to federal court in November 2016, nine months after he was fired. Lipin claims the hospital canned him wrongfully after he needed to extend his time off under the Family Medical Leave Act due to a bout with pneumonia, but the hospital said it decided he had to go before they knew he was sick after he passed along patient information to the police in violation of HIPAA.

SMG President Dr. George Clairmont said he was waiting for Lipin to come back from leave to officially show him the door but went ahead with the dismissal when he learned Lipin was doing work at another hospital, Anna Jaques Hospital, while supposedly out sick. In denying part of Steward’s motion for summary judgment, U.S. District Judge Leo T. Sorokin wrote Wednesday that a trial will be needed to sort out some of the issues around the prickly firing.

“A 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,” Judge Sorokin wrote.

Although Judge Sorokin said nothing directly contradicts Clairmont’s description of the firing, he said finders of fact could choose to disregard his account because the hospital never actually fired Lipin or made arrangements to cover his patient workload until learning of his work for Anna Jaques.

“These circumstances could support a reasonable inference that Steward decided to fire Lipin only after Clairmont learned of Lipin’s work at Anna Jaques,” Judge Sorokin wrote. “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.”

The hospital said the decision to fire Lipin came after investigating a November 2015 incident during which Lipin allegedly called Methuen police and conveyed information about a patient to find out if the patient had any outstanding warrants. The police declined to speak with him about the matter, citing HIPAA, and the hospital began probing the incident over the course of the next several weeks, according to court records.

Kavita M. Goyal of the Rosen Law Offices, an attorney for Lipin, told Law360 on Thursday the HIPAA violation was “no big deal” and an excuse concocted by the hospital to drum up grounds for Lipin’s termination. Clairmont’s report characterized the offense as “minor” and Lipin would show a jury it was not the reason for the firing, Goyal said.

The judge did allow a win for Steward on separate claims by Lipin that the hospital violated the Americans With Disabilities Act by firing him on Feb. 23, 2016, after extending his FMLA leave until March 2 of that year. The judge said continuing to engage with Lipin about his illness after deciding to fire him would only have served to delay the inevitable.

“Whereas Steward had reached an employment decision without regard to any disability asserted by Lipin,” Judge Sorokin wrote, “Steward was not obligated to initiate an interactive dialogue with Lipin toward an accommodation that would have served only to forestall his termination.”

Both Goyal and Emily L. Grossman, another Lipin attorney, said they were pleased that Judge Sorokin is allowing the FMLA part of the suit to proceed, but were disappointed to see the ADA claims tossed.

“I disagree with the judge’s decision, he suggests an employer may no longer be obligated to participate in the interactive process if a decision is made to terminate, even if that decision is unlawful,” Goyal said. “In this case, he was working a second job and we believe he was protected under FMLA.

“The reason they terminated him was because they were mad he had worked at Anna Jaques and believed he was not entitled to the time off because he was working somewhere else,” Goyal added. “At the very least, the employee is entitled to a conversation.”

The parties are due back in court May 30 for an initial pretrial conference. Judge Sorokin also directed lawyers for both sides to determine whether mediation to avoid trial altogether might prove fruitful.

Counsel for Steward did not immediately respond to requests to comment Wednesday afternoon.

Lipin is represented by Kavita M. Goyal and Emily L. Grossman of Rosen Law Offices. Steward is represented by Anne S. Bider and Barry J. Miller of Seyfarth Shaw LLP.

The case is Lipin v. Steward Healthcare System LLP et al., case number 1:16-cv-12256, in the U.S. District Court for the District of Massachusetts.

–Editing by Orlando Lorenzo.