The opinion of the court was delivered by: By: Hon. Michael F. Urbanski United States Magistrate Judge
This matter is before the court on defendants' motions for summary judgment (Docket Nos. 98, 101 and 103). The issues have been exhaustively briefed and were argued at a hearing on February 28, 2011. For the reasons set forth below, the motions are GRANTED in part and DENIED in part.
This lawsuit arises out of the employment and termination of Dr. George Montgomery Baylor as a pain management physician with Comprehensive Pain Management Centers, Inc. ("CPMC"). Dr. Baylor contends that CPMC breached his Employment Agreement by not paying him an appropriate production bonus. Dr. Baylor also claims that Dr. Gunasiri Samarasinghe, CPMC's owner, and his wife Kathleen Samarasinghe, CPMC's business manager, along with Dr. Michael T. Kelly, another doctor working at CPMC, engaged in a variety of business torts, including statutory conspiracy, defamation and tortious interference, associated with Dr. Baylor's termination. Further, Dr. Baylor alleges that CPMC terminated him in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., a federal statute designed to preserve the jobs of persons called to military service.
Dr. Baylor signed an Employment Agreement with CPMC on April 4, 2004. Section 3 of that Agreement concerns his compensation, and provides that in addition to his annual salary of $230,000, Dr. Baylor "shall receive production bonuses so that his compensation package including salary, benefits and bonuses shall equal 50% of the total receipts generated by the Employee for each twelve-month period beginning on the date of initial employment." CPMC's Summ. J. Br. (Dkt. #102), at Ex. 1. An Amendment to Employment Agreement was executed on May 10, 2005, making two principal changes. Dr. Baylor's salary was increased to $300,000 effective January 1, 2005, and the term of the Employment Agreement was extended to December 31, 2005.
Dr. Baylor was a U.S. Army reservist and was notified in late November, 2005 that he was being called to active duty. Dr. Baylor reported for active duty on January 2, 2006, a few days after his Employment Agreement with CPMC ended. Nonetheless, CPMC held Dr. Baylor's position open for him, and he returned to work at CPMC on April 10, 2006. In the interim, CPMC hired Dr. Kelly to assist in Dr. Baylor's absence.
The parties disagree as to what happened when Dr. Baylor returned to work. Dr. Baylor asserts that he "received a frosty reception upon his return to CPMC." Pl.'s Br. in Opp. to Summ. J. (Dkt. #116), at 13. Dr. Kelly continued to see patients, and "there was a perceptible shift in the demeanor of staff toward Dr. Baylor." Id. at 14. In contrast, defendants assert that on the day Dr. Baylor returned to work, he brought with him a letter from his lawyer setting forth certain allegations and demands. In its brief, CPMC states that "[t]he receipt of the letter from Baylor's attorney on the day of his return to work at CPMC caused both of the Samarasinghes to reconsider Baylor's desire to resume working at CPMC on a long term basis." CPMC's Summ.
J. Br. (Dkt. #102), at 9. CPMC and the Samarasinghes also assert that once Dr. Baylor returned, "there were several incidents that occurred involving Baylor that disrupted the CPMC office and caused the Samarasinghes concern." Id.
Matters came to a head on May 1, 2006. Dr. Samarasinghe asked Dr. Baylor to speak with him in a conference room, and an argument ensued. Words were exchanged, including an expletive Dr. Baylor directed at Dr. Samarasinghe. Dr. Samarasinghe then fired Dr. Baylor.
After Dr. Baylor's termination, CPMC asserts that "[t]he Samarasinghes instructed CPMC employees and staff to advise patients who called for an appointment with Baylor . . . that Baylor was no longer with the practice, that the patient could schedule with another physician at CPMC or advise CPMC where he or she wanted to be referred out to." CPMC's Summ. J. Br. (Dkt. #102), at 11. Dr. Baylor paints quite a different picture, contending that "CPMC persisted in giving Dr. Baylor's patients misinformation or no information about his whereabouts." Pl.'s Br. in Opp. to Summ. J. (Dkt. #116), at 16. Dr. Baylor asserts that patients asking about him were told a number of derogatory things, including that he was fired for "ethical reasons," that he had low integrity, and had broken his contract by going on military leave. Id.
Dr. Baylor filed suit in state court in 2007 and was subsequently granted leave to amend his complaint. In 2009, he filed his amended complaint, which included a USERRA claim, a violation of federal law. This prompted defendants to remove this action to federal court in November, 2009. The parties consented to the undersigned's jurisdiction over this case and pursuant to 28 U.S.C. § 636(c), the case was transferred to the undersigned by Order dated December 9, 2009.
Dr. Baylor contends in Counts I and II of his complaint that CPMC breached his Employment Agreement by not paying him a production bonus.*fn1 In this regard, Dr. Baylor's principal contentions are that he should have received production credit for receipts associated with billings for physician assistants under his supervision, receipts associated with medications he administered, and receipts incorrectly allocated to Dr. Samarasinghe. Dr. Baylor also contends that CPMC failed to collect his billings in an appropriate manner, resulting in fewer receipts attributed to him. In all, Dr. Baylor claims that he was shorted on the production bonus by a number ranging from $443,664 to $3.2 million.*fn2 In addition, Dr. Baylor contends that CPMC did not pay for certain benefits to which he was entitled, including disability insurance, dental coverage and participation in a 401K plan, resulting in damages of approximately $13,684.
Counts III and IV allege that defendants defamed Dr. Baylor by making a host of derogatory statements to patients after his termination, such as telling his patients that he had left, that his whereabouts were unknown, that he was let go for ethical reasons and that his integrity was not high.*fn3 Dr. Baylor contends that a reasonable inference from these statements is that Dr. Baylor abandoned his patients and is unfit to practice medicine, constituting defamation per se.
In Count V, Dr. Baylor claims that defendants engaged in a conspiracy in violation of Virginia Code §§ 18.2-499 and 500. Relying principally on the foregoing facts, Dr. Baylor contends that Dr. Kelly conspired with CPMC and the Samarasinghes to replace him at CPMC, resulting in injury to his profession and reputation.
Dr. Baylor alleges in Count VI that defendants tortiously interfered with his Employment Agreement with CPMC and with his prospective business relationships with his patients. Dr. Baylor asserts that:
Defendants used fraud, deceit and defamation in interfering with [his] contract with CPMC, falsely accusing him of unethical conduct and other workplace misconduct. In the process, Defendants also violated USERRA--dismissing him, without reasonable cause, and discriminating against him for both his military service and his assertion of rights under USERRA. This constellation of wrongful acts constitutes 'improper methods' under any reading of Virginia's tortious-interference law.
Pl.'s Br. in Opp. to Summ. J. (Dkt. #116), at 48.
Finally, in Count VII, Dr. Baylor claims that his termination by CPMC violated the protections afforded him under USERRA, as he was terminated without cause within 180 days of his return to CPMC and discriminated against based on his military service and his assertion of rights under USERRA.
Defendants argue all of these claims fail as a matter of law and should be dismissed.
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In order to preclude summary judgment, the dispute about a material fact must be "'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, if the evidence "is merely colorable or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). "As to materiality. . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.
Once a motion for summary judgment is properly made and supported, the nonmoving party may not rely merely on allegations or denials in its own pleading; rather, it must set out specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 250. In deciding the motion, the court must view the record as a whole and draw reasonable inferences in the light most favorable to the nonmoving party. In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir. 1999). A judge's function at the summary judgment stage is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
A.Counts I & II: Breach of Contract
CPMC asserts that it is entitled to summary judgment on the breach of contract claim because there is no evidence that CPMC breached the Employment Agreement or that Dr. Baylor suffered any damages. Dr. Baylor claims that CPMC breached the Employment Agreement by not paying him a production bonus and by not providing him with certain benefits.
As regards the production bonus claim, Dr. Baylor argues that CPMC breached the agreement by failing to undertake reasonable efforts to collect his billings and to accurately report the receipts resulting from his treatment of patients. He contends that CPMC's billing and collection practices failed to meet industry standards. Dr. Baylor further argues that CPMC's failure to accurately report and collect his billings breaches paragraph 6 of the Employment Agreement, which provides that "[t]he Employee shall be furnished with a private office, stenographic help and other facilities and services, suitable to his position and necessary for the performance of his duties." CPMC's Summ. J. Br. (Dkt. #102), at Ex. 1. The second aspect of the production bonus issue is Dr. Baylor's contention that CPMC breached the Employment Agreement by failing to give Dr. Baylor credit for collections from billings made under his provider numbers for supervising Physician Assistant ("PA") services and supplies.
The Employment Agreement provides that the production bonus is calculated based on "total receipts generated by the Employee," but it is silent on what this term means. Id. at 1. It does not state whether Dr. Baylor's total receipts include billings attributable to patient services provided by him alone or whether they also include billings by PAs he supervises or medicines and supplies he provides to patients. Nor does the Employment Agreement say anything about collection practices, much less industry standards.
CPMC argues from black letter law that the contract is unambiguous and that the court should look no further than its four corners to determine its meaning. Certainly, if the contract was unambiguous, no jury issue would be raised. But that is not the case here. The Employment Agreement does not spell out with any specificity what is included in "total receipts generated by the Employee," and the meaning of that critical term cannot be determined just by looking at the text of the Agreement alone. Additional evidence is required on the issue of what "total receipts generated by the Employee" means. On the one hand, Dr. Baylor credibly argues that these receipts would not have been generated absent his provision of the medicines and supplies and supervision of the PAs. On the other hand, there is no suggestion that Dr. Baylor, as opposed to CPMC, paid for the medicines and supplies or contributed to the salary of the PAs he supervised, raising a legitimate question as to whether he should be entitled to a production bonus for materials supplied by CPMC and services rendered by ...