               Case: 13-11893        Date Filed: 03/27/2014      Page: 1 of 17


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-11893
                               ________________________

                          D.C. Docket No. 1:10-cv-00773-JOF


DR. JEANNIE BLOM,

                                                                          Plaintiff-Appellant,

                                            versus

WELLSTAR HEALTH SYSTEM, INC.,
DR. RICHARD HART,

                                                                      Defendants-Appellees,
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                      (March 27, 2014)

Before PRYOR and MARTIN, Circuit Judges, and GOLD,∗ District Judge.

PER CURIAM:



*
  Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
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      Dr. Jeannie Blom appeals the district court’s grant of summary judgment in

favor of her former employer WellStar Health System, Inc. Specifically, she

challenges the district court’s rulings on her claims of gender discrimination and

quid pro quo sexual harassment under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2, and retaliation under the Family Medical Leave Act (FMLA),

29 U.S.C. § 2615(a). After careful review and with the benefit of oral argument,

we affirm.

                                         I.

                         A. FACTUAL BACKGROUND

      Blom was hired by WellStar pursuant to an employment agreement in 2000.

She served as WellStar’s Medical Director of the Cobb Hospital Rehabilitation

Unit. The employment contract provided that WellStar could terminate the

agreement at any time without cause.

      Hospital rehabilitation medicine is one of the most regulated and audited

areas of medicine. WellStar had concerns about three aspects of Blom’s billing

practices: (1) insufficient documentation of procedures; (2) coding above national

benchmarks, which means her billing showed she was performing more time-

consuming and expensive procedures more often than other physicians in her

practice area across the country; and (3) billing through her own provider number

when she was using another physician to cover her. WellStar was particularly


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concerned about Blom’s practice of coding above national benchmarks because it

believed that increased the likelihood of a time-consuming and expensive

Medicare audit.

      As to the first issue—inadequate documentation of services provided—in

2006 Blom failed a random coding audit. She then worked with various WellStar

employees to improve her coding accuracy and documentation. She later received

a very high audit score of 96%. There are emails showing she was very

cooperative and receptive to feedback in this area and worked hard to improve,

which WellStar does not dispute.

      On the second issue—coding above national benchmarks—the record shows

that Blom was resistant to change. During Blom’s employment with WellStar,

David Anderson was the Executive Vice President for Human Resources and Chief

Compliance Officer and one of the decision makers for Blom’s termination. He

testified that Blom was consistently discussed at quarterly compliance meetings

because her billing percentages for high-cost services were above national

benchmarks. The emails between the parties that address this issue show that in

comparison to her response to improving her audit scores, Blom was less receptive

to change, and even defensive. In middle and late 2007 there was a meeting and

correspondence about her national benchmark comparisons at which time WellStar

insisted that she change her practices or face termination. This correspondence


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also shows continuing problems with the third issue, Blom’s practice of billing

under her own provider number when she was away and other physicians were

providing services to her patients.

       Around this same time, Blom was also the primary care giver for several ill

family members. Blom claimed WellStar interfered with her ability to care for

these family members. In support of this claim, she offers her correspondence with

WellStar about coverage issues, including one letter in which she claims she had

arranged for coverage so that she could be with her father during a surgery but was

still called to attend to matters at the hospital.

       In February 2008, just before Blom’s termination, WellStar’s compliance

hotline received an anonymous complaint that Blom was not fulfilling her duties

and was falsifying documentation, both serious allegations of Medicare fraud.

WellStar investigated the complaint and ultimately concluded that the allegations

were unfounded because it could not tie any fraudulent coding or billing to any

specific patients and Blom denied any wrongdoing. However, the investigation

revealed other serious concerns about Blom’s performance as Medical Director,

including that:

       •      she did not typically come in during day time hours;

       •      when she came in she stayed on the unit an average of two to three

              hours and spent most of that time in her office;


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•   she was often not present during the discharge process, although the

    discharge summary requires a face-to-face patient encounter on the

    day of discharge;

•   she sometimes came in at midnight and wrote a progress note for the

    current day and one for the next day, and then did not come back the

    next day;

•   she “popped in” on patients but was rarely performing exams,

    although she often documented an exam on every patient;

•   orders she wrote late in the evening caused the nurses to wake patients

    up, transfuse at night, etc., interrupting the nurses’ normal routine;

•   she did not always meet with her entire team on team conference day;

•   she often arrived one to three hours late for team conferences, and two

    of the four team conferences scheduled in January did not occur;

•   when she was late or cancelled team conferences it affected the work

    of the therapists and social workers because they could not schedule

    therapy during that time;

•   staff seemed dejected and resigned, and some fearful about answering

    questions; and

•   taken together, these matters raised serious concerns about whether

    her billing and documentation were appropriate.


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Bruce Harrison, WellStar’s Senior Vice President of Physician Services and the

other decision maker in this case, communicated some of these concerns to Blom

by letter in February 2008.

      During her employment with WellStar, Blom had an affair with a senior

WellStar employee, Dr. Richard Hart. The affair ended in 2006 about two years

before Blom was fired. When the affair started, Hart was WellStar’s Medical

Director for the Physicians Group. That position involved being the point person

for physicians in or joining the WellStar group. While he was in that position, he

and Blom began having lunch because she was having problems working with the

directors of rehabilitation at WellStar’s other hospitals. Blom claims that during

the affair Hart told her that he was protecting her from people who sought to harm

her career and that she would experience difficulties at WellStar without his

protection.

      In 2004 Hart was appointed to be Medical Director at WellStar’s Douglas

and Paulding Hospitals. As a result, from 2004 forward he did not have medical

director responsibilities at Cobb Hospital where Blom worked.

      Neither Blom nor Hart disclosed their affair to anyone at WellStar. Prior to

the decision to terminate Blom’s employment contract, decision makers Anderson

and Harrison did not know about the affair.




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        Blom claims, relying on her own affidavit, that in March 2008, about two

weeks before she was terminated, Hart began calling her although they had not

spoken for almost two years. She testified to a number of specific statements that

Hart made about how she was being discriminatorily treated based on her gender

and set-up to be fired because the men at WellStar were jealous of her success.

Blom further testified that Hart said he could help her, but that he had to “get

together” with her first. Based on their communications during their affair, Blom

interpreted this phrase as Hart asking her for physical intimacy in exchange for his

help.

        WellStar contends that after the hotline investigation, Anderson concluded

that Blom was a compliance risk and that she had failed to conduct herself in a

manner consistent with WellStar’s expectations for a medical director. Based on

these conclusions, he recommended that WellStar terminate Blom’s employment

contract. Harrison followed Anderson’s advice and terminated Blom’s

employment agreement without cause on March 19, 2008.

                           B. PROCEDURAL HISTORY

        Blom filed suit against WellStar and Hart in March 2010. After discovery,

Hart filed for summary judgment, which Blom did not contest. WellStar also

moved for summary judgment and the district court granted judgment to WellStar

on all counts. Blom now appeals the district court’s order as to three of her


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original claims against WellStar: (1) Title VII gender discrimination for her

termination; (2) retaliation under FMLA; and (3) quid pro quo sexual harassment.

                                         II.

      We review de novo the district court’s grant of summary judgment. Skop v.

City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment is

appropriate only when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In

making this determination, we view the evidence and all factual inferences in the

light most favorable to the non-moving party. Skop, 485 F.3d at 1136.

      “The district court’s evidentiary rulings are reviewed for abuse of discretion

and will be reversed only if an erroneous ruling resulted in substantial prejudice.”

Cynergy, LLC v. First Am. Title Ins. Co., 706 F.3d 1321, 1326 (11th Cir. 2013)

(internal quotation marks omitted). “This Court will affirm such rulings unless the

district court has made a clear error of judgment or has applied an incorrect legal

standard.” Id. (internal quotation marks omitted).

                                         III.

                 A.     TITLE VII GENDER DISCRIMINATION

      Blom appeals the grant of summary judgment for WellStar on her Title VII

gender discrimination claim, arguing that she sufficiently rebutted each of

WellStar’s proffered reasons for her termination and demonstrated a material


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dispute of fact as to whether she was the victim of intentional discrimination. Title

VII prohibits employment discrimination on the basis of sex. See 42 U.S.C. §

2000e-2(a). In cases involving circumstantial evidence of discrimination we apply

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973). Under McDonnell Douglas a plaintiff must first

establish a prima facie case of discrimination. Holland v. Gee, 677 F.3d 1047,

1055 (11th Cir. 2012). Then the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its actions. Id.

      If the employer identifies a legitimate, nondiscriminatory reason for its

decision, the burden shifts back to the plaintiff to demonstrate that the proffered

reason was not the true reason for the employment decision. Id. The plaintiff

“cannot recast the reason but must meet it head on and rebut it.” Id. (quotation

marks omitted). At this stage, the plaintiff’s burden of rebutting the employer’s

proffered reasons also merges with the plaintiff’s ultimate burden of persuading the

finder of fact that she has been the victim of intentional discrimination. Id. at

1056. The dispositive issue in this case is this final step—whether Blom

adequately rebutted each of WellStar’s reasons for her termination and presented

sufficient evidence that would allow a reasonable jury to conclude WellStar was

motivated by discrimination. Id.




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         WellStar relied on three legitimate nondiscriminatory bases for Blom’s

termination: (1) concerns about Blom’s coding; (2) performance issues that came

to light during the hotline investigation; and (3) concerns that Blom was a

compliance risk and behaved in ways that were inconsistent with being a medical

director. Blom must rebut each of the reasons to survive a motion for summary

judgment. Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en

banc).

         Blom’s main argument is that WellStar’s reasons for her termination and the

testimony of WellStar employees about these reasons are contradicted by

WellStar’s own documents. Based on this, Blom claims the district court

improperly made credibility determinations and failed to view the evidence in the

light most favorable to her. Our review of the record does not support this claim.

Although Blom arguably has identified some conflicts and inconsistencies, they do

not relate to WellStar’s main concerns. Neither does she point to any significant

evidence of gender bias to allow an inference that discrimination was the true

motivation for WellStar’s actions.

         First, Blom fails to present evidence that WellStar’s concerns about her

coding practices were pretextual. In discussing this reason for her termination,

Blom focuses almost entirely on her audit scores. But correspondence between the

parties shows that WellStar was not concerned with Blom’s audit scores. It was


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her coding above national benchmarks that was WellStar’s focus. This

correspondence also demonstrates that Blom knew about WellStar’s concerns but

felt her billing practices were valid and she resisted changing them.

      In rebuttal Blom argues that an inference of pretext can be drawn from the

fact that WellStar departed from its usual practice of deferring to its coding and

compliance experts, who had recommended conducting an external peer review of

Blom’s billing. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,

1299 (11th Cir. 2006) (“[A]n employer’s deviation from its own standard

procedures may serve as evidence of pretext[.]”). However, the record does not

reflect that WellStar had a usual practice of deferring to its coding experts or

conducting external peer reviews before making personnel decisions. It only

shows that Anderson testified that his coding staff would know the answers to

technical questions that he could not answer, such as the criteria for being

identified as coding above national benchmarks. The fact that WellStar did not

have a usual practice in a situation like Blom’s is further demonstrated by the fact

that she was the only physician regularly discussed and finally terminated for

compliance-related issues during Anderson’s tenure at WellStar.

      While Blom’s failure to rebut WellStar’s concerns about her national

benchmark comparisons is sufficient alone to support judgment in favor of

WellStar, Blom also fails to rebut WellStar’s concerns that came to light after the


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hotline investigation.1 Although there was no ultimate finding of wrongdoing, the

investigation, which included interviews with sixteen members of Blom’s

department, raised serious concerns about her performance as Medical Director.

       Rather than directly address these concerns, Blom argues that a jury could

draw inferences from Harrison’s February 2008 letter—sent right before her

termination—that would allow them to conclude that WellStar was not genuinely

concerned about the hotline complaint investigation. She argues first that the fact

that Harrison attached a new employment contract for her to sign, even after the

investigation was mostly complete, suggested that he was not genuinely

concerned. 2 Second, she argues that Harrison’s letter says he would raise “any

additional concerns” that come out of the investigation with her at a later date, but

never did.

       In contrast to Blom’s view, our review of the record indicates that Harrison

was genuinely concerned about the investigation. Harrison’s letter voices

unambiguous concern when he states, “I want to take this opportunity to ensure

1
  Because we conclude Blom failed to rebut WellStar’s first two reasons for her termination, we
do not consider WellStar’s third proffered rationale for its decision. See Chapman, 229 F.3d at
1037.
2
  Blom also argues that a reasonable jury could find pretext because Anderson testified that none
of his concerns were violations of Blom’s contract. This argument distorts the nature of the
parties’ employment contract. Although the contract did set forth some specific situations in
which the contract may be terminated for cause—such as revocation of the physician’s medical
license—it also permitted either party, without cause, to terminate with 90-days notice, as was
done here.


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that there is no uncertainty related to various issues which have recently arisen

related to your services provided to the inpatients of the Cobb Hospital Rehab

Unit.” The letter also echoes some of the problems raised by the hotline complaint

investigation, including concerns about Blom’s hours and attendance at team

conference meetings.

      Neither does the record support Blom’s characterization of the letter as

offering her a new employment contract. The letter says: “it has come to my

attention that you have not executed the Amended and Restated Physician Services

Agreement and Medical Director letter agreement which were provided to you last

year.” In asking her to sign and return the last contract on file, Harrison’s letter

was not inviting Blom to extend her employment with WellStar, but rather

addressing her failure to sign and return the contract from last year.

      The record also contradicts Blom’s other claimed inference—Harrison’s

failure to raise “any additional concerns which may arise from the investigation.”

WellStar terminated Blom’s contract less than three weeks after Harrison’s letter,

during which time WellStar did raise its concerns with Blom by meeting with her

to discuss the hotline investigation and informing her of her termination.

      Blom also fails to present sufficient evidence that would allow a jury to find

that she was the victim of discrimination. On this point Blom offers the following

evidence: (1) WellStar did not terminate or discipline a number of male physicians


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who also failed audits; and (2) Hart’s statements to her provided evidence of

WellStar’s gender bias.

      First, as to the comparator evidence, Blom argues the district court erred in

concluding that her proffered male comparators were not similarly situated. In

rejecting Blom’s thirteen male comparators, the district court found “there is no

evidence in the record that they also had problems with national benchmarks, that

their supervisors found them to be uncooperative, or that a complaint had been

made against them to the compliance hotline.”

      The fact that Blom had additional areas of friction with WellStar and was

not just fired for coding issues makes these other physicians, who we only know

are male and failed audits, inappropriate comparators. Rioux v. City of Atlanta,

520 F.3d 1269, 1280 (11th Cir. 2008) (“The quantity and quality of the

comparator’s misconduct must be nearly identical to prevent courts from second-

guessing employers’ reasonable decisions and confusing apples with oranges.”

(internal alterations and quotation marks omitted)). Also, Blom’s comparator

evidence yet again focuses on audit results, not national benchmark comparisons.

As a result, even putting aside Blom’s cooperation and performance issues, her

comparators are inadequate because she did not offer evidence of male doctors

who were not fired despite coding above national benchmarks.




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      Second, Blom argues that the district court failed to consider evidence of

WellStar’s gender bias by improperly excluding Hart’s statements, which Blom

offered through her own affidavit. Blom argues Hart’s statements are admissible

as non-hearsay under Federal Rule of Evidence 801 as a statement “offered against

an opposing party” and “was made by the party’s agent or employee on a matter

within the scope of that relationship and while it existed.” Fed. R. Evid.

801(d)(2)(D); see also Miles v. M.N.C. Corp., 750 F.2d 867, 874–75 (11th Cir.

1985) (finding statement made by employee with influence over employment

decisions was admissible under Rule 801(d)(2)(D)). The district court rejected this

argument because there was no record evidence showing Hart’s “position was of

such rank or importance or that he was so involved with the decisionmaking

process for [Blom’s] termination that any comment by him could be considered the

admission of a party opponent.”

      We find no abuse of discretion in the district court’s finding. Although in

some situations an employee may testify about statements made by his supervisor

regarding company policy toward a protected group of employees, Blom’s attempt

to rely on the double-hearsay statements in her affidavit fails because there is no

evidence that Hart was her supervisor or had authority to speak for WellStar on

personnel matters. Zaben v. Air Products & Chemicals, Inc. 129 F.3d 1453, 1456–

57 (11th Cir. 1997). At the time of his alleged statements, Hart was the Medical


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Director at two hospitals where Blom did not work. Blom also admitted they had

not spoken in nearly two years. In her deposition Blom testified only that she

“would assume” the decision makers were interacting with Hart. Because of her

failure to offer evidence that Hart was her supervisor or that he had authority to

speak for WellStar on personnel matters related to her, we see no error in the

district court’s ruling.

       Because we conclude that Blom has failed to present evidence that would

allow a jury to conclude that WellStar’s reasons for her termination were

pretextual or motivated by gender bias, we affirm the grant of summary judgment

on her Title VII gender discrimination claim.

                            B.    FMLA RETALIATION

       Blom also claims the district court erred in granting judgment for WellStar

on her FMLA retaliation claim, relying on the same arguments and evidence of

pretext that she presented in defense of her Title VII gender discrimination claim.

We similarly conclude that she has failed to rebut and show pretext as to

WellStar’s proffered reasons for her termination, and therefore affirm the grant of

summary judgment on this claim.

                       C.    Quid Pro Quo Sexual Harassment

       Lastly, Blom challenges the district court’s finding that she did not establish

causation for her quid pro quo sexual harassment claim. Because Blom has not


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established a material dispute of fact as to whether Hart was her supervisor or a

decision maker who could influence her employment, she has not shown a

sufficient causal link between Hart’s conduct and WellStar’s termination decision

to create a jury question. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d

1305, 1312 (11th Cir. 2001) (affirming grant of summary judgment where

Frederick failed to present sufficient evidence to establish any causal link between

the adverse tangible employment action she suffered and the alleged harassment).

We therefore affirm the grant of judgment for WellStar on Blom’s quid pro quo

sexual harassment claim.

                                         III.

      For these reasons, the district court’s order is AFFIRMED.




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