Roy Buchsbaum, M.d. v. University Physicians Plan

* The Honorable Harold A. Ackerman, United States District Judge for the District of
New Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1526
__________
ROY BUCHSBAUM, M.D.,
Appellant
v.
UNIVERSITY PHYSICIANS PLAN;
UNIVERSITY OF PITTSBURGH MEDICAL
CENTER HEALTH SYSTEM;
UNIVERSITY OF PITTSBURGH;
LATROBE AREA HOSPITAL
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D.C. Civil No. 00-cv-01243
District Judge: The Honorable Donetta W. Ambrose
__________
Submitted Under Third Circuit LAR 34.1(a)
November 19, 2002
__________
Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN,* District Judge
(Opinion Filed: December 10, 2002)
____________
OPINION
____________

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1 The District Court dismissed Buchsbaum’s PHRA claims along with his analogous
federal claims under the ADA and the ADEA because the analysis is identical. See
Rinehimer v. Cemcolift, inc., 292 F.3d 375, 382 (3d Cir. 2002) (ADA); Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) (ADEA). For the same reason, we
do not separately address Buchsbaum’s PHRA claims.
2
BARRY, Circuit Judge
Dr. Roy Buchsbaum, a hearing-impaired radiation oncologist, sued his former
employer, the University Physicians Plan (“UPP”), the Latrobe Area Hospital (“Latrobe”),
and other related defendants alleging unlawful discrimination under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Pennsylvania Human
Relations Act, 43 Penn. Stat. Ann. § 951 et seq. (“PHRA”), in addition to various common
law claims. Buchsbaum alleged that UPP and Latrobe discriminated against him on the
basis of his disability and age when they transferred him from his position as Director of
Radiation Oncology at Latrobe to a less lucrative position at Presbyterian University
Hospital in January of 1998. In an Opinion and Order filed December 19, 2001, the
District Court granted defendants’ motion for summary judgment as to the claims under the
ADA, ADEA, and PHRA,1 and dismissed the common law claims for lack of subject matter
jurisdiction. We have jurisdiction over Buchsbaum’s appeal pursuant to 28 U.S.C. § 1291
and will affirm.

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I.
Because the parties are familiar with the record, we recapitulate only those facts
necessary for our analysis. Buchsbaum, born July 28, 1946, suffers from a moderately
severe neurosensory hearing loss. With both hearing aids in place, he can understand most
spoken communication if the speaker speaks clearly to his face in a quiet environment but
begins to lose content if the speaker mumbles, speaks softly or rapidly, or is not facing
him, or if there is background noise. In 1987, University Radiation Associates (“URA”),
the predecessor of UPP, hired Buchsbaum for a position on the clinical faculty of the
University of Pittsburgh. From 1993 to 1994, Buchsbaum was Acting Medical Director of
the Department of Radiation Oncology at Magee Women’s Hospital (“Magee”). In late
1993 or early 1994, Dr. Joel Greenberger, President of URA, received complaints from
some staff members at Magee that Buchsbaum was behaving rudely toward patients and
staff. After discussing the complaints with Buchsbaum, Greenberger realized that the
complaints resulted from Buchsbaum’s hearing difficulty; he seemed to be rude when in
fact he was not hearing what staff members were saying. The situation was resolved when
Buchsbaum called a meeting of the Magee staff to apologize for his perceived rudeness and
explained how people could make sure he was hearing them if they thought he was being
rude or unresponsive.
Later in 1994, Greenberger transferred Buchsbaum from Magee to head up a new
radiation oncology practice at Latrobe Area Hospital and, between 1994 and 1997,
Buchsbaum built that practice. Despite Buchsbaum’s apparent successes, in August of

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1997, a few staff members complained to Dr. Thomas Gessner, the Medical Director of the
hospital, about Buchsbaum’s conduct with staff and patients. At an August 20, 1997
meeting with Gessner, two staff members from Buchsbaum’s department and an
administrator expressed concern about Buchsbaum’s difficulties in remembering changes
in patient treatment plans and the results of patients’ laboratory tests. In follow-up written
reports requested by Gessner, the two staff members further documented myriad
complaints about Buchsbaum’s professional conduct: inappropriate comments to patients
concerning his compensation and his being “stuck” at Latrobe, repeated tardiness causing
patients to wait unnecessarily, frequent unannounced sick days, misplaced files and reports,
problems finding Buchsbaum when he should be available, an uneven and unpredictable
temperament, and sarcastic responses to requests that Buchsbaum keep staff better
informed about updates to patient information and treatment plans.
At an August 22, 1997 meeting called by Gessner to address these complaints,
Buchsbaum denied any illness or substance abuse which could be causing his problems, and
agreed to undergo a psychological evaluation to confirm that he was not experiencing
memory or cognitive impairments. After an initial examination on October 14, 1997, the
psychologist to whom Gessner had referred Buchsbaum, Dr. Larry Sellitto, referred
Buchsbaum to Dr. William Hawthorne for further testing. Hawthorne concluded that
Buchsbaum had no memory impairments. In his report to Sellitto, Hawthorne concluded
that “what others perceive as [Buchsbaum’s] forgetting things is very likely the result of his
never having heard them in the first place. In this regard his impairment most likely arises

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out of perceptual rather than cognitive factors and probably comes under the general
provisions of the ADA . . . requiring some on the job accommodation.” (emphasis in
original). Dr. Sellitto’s written opinion of January 7, 1998, delivered to Gessner, repeated
verbatim this paragraph of Hawthorne’s opinion.
Before Gessner received the final results of Buchsbaum’s psychological
evaluations, however, Greenberger began his own investigation into the complaints about
Buchsbaum. On November 28, 1997, Greenberger went to Latrobe to meet with the two
staff members who had complained to Gessner. The staff members reiterated the concerns
they had raised concerning the fact that Buchsbaum was late for patient appointments, that
he failed to tell staff about changes to patient records and treatment plans, and that he
repeatedly made sarcastic remarks to department staff. Later that same day, Greenberger
met with Dr. Wiley Overly and Dr. Matthew Sulecki, oncologists who worked with
Buchsbaum. Overly complained that Buchsbaum was arriving to work late, missing early-
morning patient appointments, and that Buchsbaum’s communications were delayed
because he still had not learned to use the hospital dictation system. He also complained
about Buchsbaum’s lack of interest at tumor board meetings, to which he often either
arrived late or left early.
At the conclusion of his visit to Latrobe, Greenberger met with Gessner to discuss
the staff complaints about Buchsbaum. Although Gessner and Greenberger had not
received the final results of the psychological evaluation, they nonetheless decided that the
staff complaints about Buchsbaum warranted removing him from Latrobe. Greenberger

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informed Buchsbaum of this decision at a meeting on January 9, 1998, and confirmed the
decision in a letter dated January 16, 1998, which explained the reasons for his transfer as
follows:
Over the past two months, there has been heightened concern voiced
to me in several face-to-face meetings and telephone conversations with
administrative staff in the Department of Radiation Oncology at Latrobe Area
Hospital, Chief of Staff’s office, and referring physicians that they are not
satisfied with the level of service of our practice group at the present time.
They have listed as reasons for their concern a perceived lack of enthusiasm
by you for clinical oncology programs at Latrobe Area Hospital, a sub-
optimal level of both verbal and written communication by you concerning
patient care activities, and perceived lack of your availability for clinical
consultation in patient care matters at times when they perceive such
availability is required.
Our decision to request that you switch your practice sites is based on
the clear message that if we did not comply with their requests University
Radiotherapy Associates, Inc., might lose its service contract at Latrobe Area
Hospital.
On January 10, 1998, Buchsbaum wrote to Douglas Clark, CEO of Latrobe,
explaining that Greenberger had just informed him that he was being transferred.
Buchsbaum stated that he had not been informed that his tardiness was a problem and
speculated that the communications problems mentioned by Greenberger were probably a
result of his hearing impairment. Approximately two weeks later, in late January of 1998,
Buchsbaum met with Gessner. At the meeting, Gessner explained that although
Buchsbaum’s clinical work was largely satisfactory, he had to be removed because certain
staff members were not happy working with him. Gessner also told Buchsbaum that the
radiation oncology department at Latrobe was one of the most poorly administered
departments he had seen and that Latrobe was not willing to give him a second chance. On

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2 In his complaint, Buchsbaum also alleged that the defendants violated the ADA by
failing to reasonably accommodate his hearing disability. See 42 U.S.C. § 12112(b)(5)(A).
Because Buchsbaum did not address his failure to accommodate claim either in his
opposition to summary judgment or in his brief on appeal, he has waived the claim, and we
do not consider it.
7
July 16, 1998, Buchsbaum resigned from his position with UPP, effective August 31,
1998, and joined a group radiation oncology practice in Memphis, Tennessee.
II.
Buchsbaum argues that the District Court erred in granting the defendants’ motion
for summary judgment for two reasons: first, the Court failed to apply a “mixed motive”
analysis to the “direct evidence” of discrimination present in the record, rather than the
more employer-friendly burden shifting analysis of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and second, the Court erred in finding that the record contained
insufficient evidence to allow a reasonable jury to find that the defendants’ proffered
reasons for transferring Buchsbaum were a pretext and the real motive for the transfer was
discrimination on the basis of Buchsbaum’s disability and age.2
We review de novo the District Court’s grant of summary judgment. Sempier v.
Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1997). Thus, summary judgment will have
been warranted only if the record contains insufficient evidence to allow a reasonable jury
to find in favor of the non-moving party at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The reviewing court must consider the evidence in the light most

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3 Appellees argue that Buchsbaum waived his argument that a “mixed motives” analysis is
appropriate by failing to expressly raise the argument in the District Court. We have said,
however, that a district court should consider whether a plaintiff’s claim should survive
summary judgment under a Price Waterhouse analysis even if it is unclear whether the
plaintiff raised the theory in response to a summary judgment motion. See Hankins v. City
of Philadelphia, 189 F.3d 353, 364 n.6 (3d Cir. 1999).
8
favorable to the non-moving party and draw all reasonable inferences in his or her favor. Id.
Applying these standards, we find Buchsbaum’s claims to be without merit.
A.
While a motion for summary judgment on an employment discrimination claim
under the ADA or the ADEA is typically considered under the burden-shifting analysis
established in McDonnell Douglas, the “mixed motive” analysis of Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), may be applied instead if the plaintiff has produced “direct
evidence” of the employer’s discriminatory animus.3 Under a Price-Waterhouse “mixed
motive” analysis, where there is strong evidence of an employer’s discriminatory animus,
the burden of proof shifts from the plaintiff to the employer to prove that its motives for
the employment action were “mixed” – that is, while some motives were discriminatory,
the employer had legitimate non-discriminatory motives as well which would have resulted
in the adverse employment action. Thus, we have described the “direct evidence” that the
employee must produce at the summary judgment stage to warrant a “mixed motives”
analysis as “so revealing of discriminatory animus that it is not necessary to rely on any
presumption from the prima facie case to shift the burden of production. . . . [T]he risk of
non-persuasion [is] shifted to the defendant who . . . must persuade the factfinder that . . . it

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would have made the same employment decision regardless of its discriminatory animus.”
Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994). Such direct evidence
“requires ‘conduct or statements by persons involved in the decisionmaking process that
may be viewed as directly reflecting the alleged discriminatory attitude.’” Starceski v.
Westinghouse Electric Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) (quoting Griffiths v.
CIGNA Corp., 988 F.2d 457, 470 (3d Cir. 1993)).
The record is bereft of evidence, much less this sort of compelling evidence, that
those in the decisionmaking process at UPP and Latrobe were motivated by discriminatory
animus when they transferred Buchsbaum from Latrobe to Presbyterian in January of 1997.
The lone fact that Selitto’s psychological evaluation opined that Buchsbaum’s perceived
memory problem was likely a function of his hearing impairment does not in itself prove
that Greenberger or Gessner decided to transfer him on the basis of his disability,
especially given the fact that they made the decision at a meeting on November 28, 1997
before Selitto even delivered his report. Similarly, the refusal to transfer Buchsbaum back
to Latrobe after it had been decided that his conduct was harming the radiation oncology
practice also falls short as “direct evidence” that the transfer was discriminatory. As for
the age claim, the only piece of evidence proffered by Buchsbaum as direct evidence of age
discrimination was a bit of testimony from Greenberger’s deposition about UPP wanting to
hire young research oriented faculty generally. This snippet was not only taken out of
context, but has no relevance to the decision to remove Buchsbaum from Latrobe.
Accordingly, Buchsbaum’s “mixed motives” argument is without merit and the McDonnell

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Douglas analysis applies.
B.
Under the familiar three-step burden-shifting analysis of McDonnell Douglas, the
Court determines, first, whether the plaintiff has established a prima facie case of unlawful
employment discrimination. If the employee successfully establishes a prima facie case,
the “the burden of production shifts to the employer to ‘articulate some legitimate,
nondiscriminatory reason’” for the adverse employment action. Fuentes v. Perskie, 32 F.3d
759, 763 (3d Cir. 1994) (quoting McDonnell Douglas, 411 U.S. at 802). Third, if the
employer can articulate such a reason, the burden of production shifts back to the
employee, who must produce “sufficient evidence to raise a genuine issue of fact as to
whether the employer’s proffered reasons were not its true reasons for the challenged
employment actions.” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d
Cir. 1996) (en banc).
None of the parties before us disputes that Buchsbaum established a prima facie
case of discrimination, or that the UPP defendants successfully articulated non-
discriminatory reasons for removing Buchsbaum from Latrobe. Our analysis thus proceeds
directly to the third McDonnell Douglas step, and our determination as to whether there
was sufficient evidence in the record to allow a reasonable jury to find that the UPP
defendants’ proffered reasons were a pretext for discrimination. An employee can show
pretext at the third step of McDonnell Douglas by “either (i) discrediting the [employer’s]
proffered reasons, either circumstantially or directly, or (ii) adducing evidence . . . that

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discrimination was more likely than not a motivating or determinative cause of the adverse
employment action.” Fuentes, 32 F.3d at 764. As to the quantum of evidence required, the
record must be sufficient to allow “a reasonable factfinder to infer that each of the
employer’s non-discriminatory reasons was either a post hoc fabrication or otherwise did
not actually motivate the employment action (that is, the proffered reason is a pretext).” Id.
(emphasis in original).
Viewing the record as a whole, there is insufficient evidence to enable a reasonable
jury to find that the reasons given by Greenberger, Gessner, and Clark for Buchsbaum’s
transfer were false or were not the real motives for Buchsbaum’s termination. Indeed,
Buchsbaum does not dispute that many of the complaints made by the radiation oncology
department staff about his behavior bear no logical connection to his hearing impairment or
his age: the fact that he was repeatedly late for early-morning patient appointments, his
failure to communicate treatment plan changes to staff, his disappearance when staff
needed to find him, his sarcastic remarks and moodiness, and his inappropriate comments
to patients. Even if certain of the complaints that the staff levied against Buchsbaum might,
at least as an abstract matter, have resulted from misunderstandings caused by that
impairment or his age (e.g., his apparent lack of interest at tumor board meetings and
apparent lack of memory), there is simply no evidence of pretext.
Although perhaps Greenberger and Gessner could have conducted a more thorough
investigation of the complaints concerning Buchsbaum, there is no evidence that their
decision to transfer him was motivated by discriminatory animus based on his age or

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disability. As we have said: “To discredit the employer’s proffered reason . . . the plaintiff
cannot simply show that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether the discriminatory animus motivated the employer, not whether
the employer is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d 759, 765 (3d Cir.
1994).
III.
We will affirm the December 19, 2001 order of the District Court.
/s/ Maryanne Trump Barry
Circuit Judge

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