                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 04 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHANTANU NERAVETLA MD,                           No.   15-35230

              Plaintiff-Appellant,               D.C. 2:13-cv-01501-JCC

 v.
                                                 MEMORANDUM*
VIRGINIA MASON MEDICAL
CENTER; L. KEITH DIPBOYE MD;
MICHAEL GLENN MD; GARY
KAPLAN MD,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                        Argued and Submitted July 13, 2017
                               Seattle, Washington

Before:      TASHIMA, McKEOWN, and NGUYEN, Circuit Judges.

      Dr. Shantanu Neravetla (“Neravetla”) appeals the district court’s grant of

summary judgment to defendants on his Americans with Disabilities Act (“ADA”)

and related state claims. Neravetla was a resident in the Transitional Year


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
residency program at Virginia Mason Medical Center (“Virginia Mason”). He

claims that he was terminated from his residency because his employer perceived

him to be mentally ill. We have jurisdiction under 28 U.S.C. § 1291 and we

affirm.

      1(a) To make out a prima facie case for discrimination under the ADA, the

plaintiff must show, among other elements, that “she is a qualified individual,

meaning she can perform the essential functions of her job.” Nunes v. Wal–Mart

Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). Likewise, discrimination under

the Washington Law Against Discrimination (“WLAD”) requires a showing that

the plaintiff was “doing satisfactory work[.]” Brownfield v. City of Yakima, 316

P.3d 520, 533 (Wash. Ct. App. 2014). Neravetla demonstrated on multiple

occasions that he was neither qualified nor doing satisfactory work. On at least

one occasion, Neravetla left the hospital while on call without so much as giving

the pager to a colleague. The “red flag” incident that Neravetla was involved in

also merits concern.

      (b)    Neravetla also cannot demonstrate causation for either his ADA or

WLAD discrimination claims. Under the ADA, a plaintiff must demonstrate that

he was terminated “on the basis of disability.” 42 U.S.C. § 12112(a). Our

jurisprudence has established that an employee is terminated on the basis of


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disability if the disability was a “motivating factor” for the termination. Martin v.

Cal. Dep’t of Veteran Affairs, 560 F.3d 1042, 1048 (9th Cir. 2009). Under the

WLAD, a plaintiff must demonstrate that discrimination was “a substantial factor

motivating” the adverse employment action. Scrivener v. Clark Coll., 334 P.3d

541, 544 (Wash. 2014). The record in this case is uncontroverted that Neravetla

was terminated solely because he failed to comply with his referral to the

Washington Physicians Health Program (“WPHP”).

      (c)    Nor was the referral itself illegal under the ADA. An employer may

require a medical examination if “such examination or inquiry is shown to be job-

related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). In

Brownfield v. City of Yakima, we held that a mandatory psychological evaluation

satisfied this standard when the plaintiff police officer had displayed “highly

emotional responses[.]” 612 F.3d 1140, 1146 (9th Cir. 2010). We noted that

volatile responses are of particular concern when the plaintiff is involved in

“dangerous work.” Id. The practice of medicine is without a doubt similarly

“dangerous work.” Neravetla’s emotional and belligerent behavior put patients at

risk, and his referral to WPHP was job-related and consistent with business

necessity.




                                           3
         2.    Neravetla also brings a number of state law claims, none of which has

merit.

         (a)   Neravetla’s defamation claim fails at the outset, as he has not

identified any specific defamatory statement, nor has he shown that any statement

about him was “published.” See Doe v. Gonzaga Univ., 24 P.3d 390, 397 (Wash.

2001), rev’d on other grounds, 536 U.S. 273 (2002). Finally, Neravetla has not

shown that Defendants acted negligently. See Bender v. City of Seattle, 664 P.2d

492, 503 (Wash. 1983). On the contrary, it appears that Defendants acted in

compliance with a Washington statute requiring that impaired practitioners be

reported to a “disciplining authority, an impaired practitioner program, or

voluntary substance abuse monitoring program . . . .” Wash. Rev. Code

§ 18.130.070(1)(a). Washington law expressly immunizes such referrals from civil

liability. Wash. Rev. Code § 18.130.070(3).

         (b)   Neravetla’s intentional interference with business expectancy claim

fails for the simple reason that there is no evidence that Defendants intentionally

interfered with Neravetla’s residency plans. There is certainly no evidence that

they did so for “an improper purpose.” Koch v. Mut. of Enumclaw Ins. Co., 31

P.3d 698, 701 (Wash. Ct. App. 2001).

         (c)   Defendants did not breach the contract governing Neravetla’s


                                            4
Transitional Year residency. The contract requires Virginia Mason to provide “a

suitable education experience . . . through a training program that substantially

complies with the Essentials of Accredited Residencies in Graduate Medical

Education as adopted or amended by the Accreditation Council for Graduate

Medical Education.” There is no dispute that Virginia Mason’s program complies

with these guidelines. Even were Neravetla to demonstrate a breach, he has not

demonstrated that he suffered contract damages. When Neravetla was referred to

WPHP, he was placed on administrative leave with pay. Under Washington law,

“the mere expectancy of employment is not sufficient to award contract damages

for the distant future.” McAnulty v. Snohomish Sch. Dist. No. 201, 515 P.2d 523,

525 (Wash. Ct. App. 1973).

      (d)    Neravetla may not bring a promissory estoppel claim because his

relationship with Defendants was fully governed by contracts. “[T]he doctrine of

promissory estoppel does not apply where a contract governs.” Spectrum Glass

Co. v. Pub. Util. Dist. No. 1 of Snohomish Cty., 119 P.3d 854, 861 (Wash. Ct. App.

2005).

      (e)    Neravetla has not established any of the elements of intentional

infliction of emotional distress. See Reid v. Pierce Cty., 961 P.2d 333, 337 (Wash.

1998). Defendants did not engage in the type of outrageous conduct envisioned for


                                          5
the tort, nor is there any evidence that they intentionally inflicted harm of any kind

on Neravetla.

      3.     Neravetla also challenges two orders of the district court denying him

leave to amend and precluding the deposition of the CEO of the Virginia Mason

Health System, Dr. Kaplan.

      (a)    With regard to the former, the district court properly denied

Neravetla’s motion to file a second amended complaint with a new conspiracy

claim. Neravetla’s first conspiracy claim was dismissed with prejudice. The law

of the case therefore forecloses Neravetla from pleading the same claim again.

United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). Nor does newly

discovered evidence foreclose application of the law of the case. The “new”

evidence posited by Neravetla was in Neravetla’s possession at the time he filed

his First Amended Complaint, and could have been incorporated into his previous

amendment.

      (b)    Finally, the district court did not abuse its discretion in issuing a

protective order precluding the deposition of Dr. Kaplan. Dr. Kaplan’s only

involvement in this case is that Neravetla sent him two emails, to which Kaplan

briefly responded. The district court correctly determined that a deposition of Dr.

Kaplan would be excessively burdensome and inconvenient, and that the same


                                           6
information could be obtained from lower-level employees. See Fed. R. CIV. P.

26(b)(2)(C).

                                      •   !    •

      For the reasons set forth above, the judgment of the district court is

AFFIRMED.




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