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Gallagher v. Penobscot Community Healthcare

United States District Court, D. Maine

March 15, 2016




This lawsuit centers on allegations of age discrimination against a doctor formerly employed by Penobscot Community Healthcare, a non-profit healthcare provider located in Bangor, Maine. I conclude that the plaintiff has failed to demonstrate any viable federal claims, and that if he wishes to pursue his state law claims, he should do so in state court.

Procedural History

Dr. William F. Gallagher filed this lawsuit in federal court against his former employer Penobscot Community Health Care (“PCHC”), PCHC’s Medical Director Dr. Robert Allen, its Chief Medical Officer Dr. Noah Nesin, its Chief Human Resources Officer Terry White, and its General Counsel and Compliance and Risk Officer Lori Dwyer. Third Am. Compl. ¶¶ 2-7 (ECF No. 33) (hereafter “Am. Compl.”). In two counts, Dr. Gallagher alleged that PCHC violated the Maine Human Rights Act’s prohibitions against age discrimination and retaliation. Id. at ¶¶ 57-66, 77-82. Similarly, Dr. Gallagher alleged in two counts that PCHC violated the federal Age Discrimination in Employment Act’s (“ADEA”) prohibitions against age discrimination and retaliation. Id. at ¶¶ 67-76, 83-88. He also claimed that PCHC breached its contract with him, id. at ¶¶ 132-138, that PCHC, Nesin, White, and Dwyer retaliated against him for exercising his First Amendment rights, id. at ¶¶ 123-131, and that PCHC and all the individual defendants violated his Fifth Amendment Due Process rights. Id. at ¶¶ 113-122. He made five claims grounded in Maine tort law, alleging that PCHC and each of the individual defendants committed the torts of intentional infliction of emotional distress, negligent infliction of emotional distress, libel and slander per se, publication of injurious falsehood, and tortious interference with existing and prospective advantageous economic relations. Id. at ¶¶ 89-107. Finally, he named the United States as a defendant on the basis that the other defendants are deemed federal employees of the Public Health Service under the Federally Supported Health Centers Assistance Act (“FSCHCAA”) for whom the United States is liable under the Federal Tort Claims Act (“FTCA”).

The United States filed a Rule 12(b)(1) motion to dismiss the claims against it for lack of subject matter jurisdiction on account of sovereign immunity. The remaining defendants filed a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Dr. Gallagher then moved to amend his Second Amended Complaint, attaching a proposed Third Amended Complaint. All defendants opposed the motion to amend.

I Grant the plaintiff’s motion to amend, I apply the defendants’ motions to dismiss to the Third Amended Complaint, and I Grant the motions to dismiss.

Asserted Facts

On the defendants’ motions to dismiss, I take as true the Third Amended Complaint’s factual assertions and view them in the light most favorable to the plaintiff as the non-moving party.

PCHC employed Dr. Gallagher as a licensed physician practicing dermatology. Am. Compl. ¶ 19. Some PCHC staff leveled complaints about Dr. Gallagher, including that he was “old school.” Id. at ¶ 22. Other complaints were lodged against him unrelated to age. Id. at ¶ 23. When these complaints were not investigated according to protocol as Dr. Gallagher saw it, he attempted to investigate the complaints on his own, but he was ordered to cease and desist and “threatened with adverse employment action if he did not comply” with the order. Id. at ¶¶ 23-25, 32-35. Although no investigation uncovered any illegal, immoral, unethical, or actionable conduct on the part of Dr. Gallagher, and although the quality of Dr. Gallagher’s patient care in each annual review was found to be good, PCHC Executive Medical Director Dr. Robert Allen on an unspecified date told Dr. Gallagher to retire, implying that he was too old. Id. at ¶¶ 27-30.

In December of 2012, PCHC advertised a new dermatology position, and in February of 2013 solicited another dermatologist under the pretext of “helping [Dr. Gallagher] out” and “to help him change patients’ perception of him.” Id. at ¶¶ 50-50A. PCHC suspended Dr. Gallagher’s employment on about June 27, 2013, on the pretext of staff complaints. Id. at ¶ 31. On about April 3, 2014, on the pretext of patient complaints, PCHC terminated Dr. Gallagher, one day after a patient complained that Dr. Gallagher was too old. Id. at ¶¶ 48-49. PCHC Medical Director Dr. Allen used the number of patient complaints against Dr. Gallagher-an average of about two per year-as a basis for taking adverse employment action against him when PCHC knew or should have known that dermatology specialists like Dr. Gallagher typically receive far more complaints than general practitioners and that there is no correlation between such a level of complaints and the quality of care delivered. Id. at ¶¶ 36-40. According to Dr. Gallagher, PCHC admitted that it considered all patient complaints against Dr. Gallagher in taking adverse employment action against him, even complaints that were not justified or valid. Id. at ¶ 43. Additionally, PCHC and the individual defendants reported Dr. Gallagher’s termination to the Maine State Board of Licensure in Medicine; the Board engaged in a lengthy investigation of Dr. Gallagher’s fitness and “dismissed the complaint, ” finding no justification for taking adverse action against Gallagher’s medical license. Id. at ¶¶ 51-53.


Federal courts have limited subject matter jurisdiction. They may entertain only disputes that involve a “federal question” or are between citizens of different states. Here, the plaintiff and all the defendants except the United States are citizens of Maine. Therefore, for this Court to have jurisdiction, Dr. Gallagher must have sufficiently pleaded a federal question on which relief can be granted. 28 U.S.C. § 1331. Moreover, “[f]ederal courts lack jurisdiction over claims against the United States unless the government has waived its sovereign immunity.” Sanchez v. United States, 740 F.3d 47, 50 (1st Cir. 2014).

Federal Claims

Dr. Gallagher has asserted federal claims under the ADEA, 29 U.S.C. §§ 621-634; the FSHCAA, 42 U.S.C. § 233; the FTCA, 28 U.S.C. § 1346(b); and the ...

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