1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) MOHAMMED HUSSAIN, ) ) Plaintiff, ) ) v. ) Civil Action N o. 14- 1798 (RMC) ) DAVID J. SHULKIN, Secretary ) of Veterans Affairs, ) ) Defendant. )

___________________________________ )

MEMORANDUM OPINION
In 2003, the Department of Veter ans Affairs, Washington, D.C., terminated Dr. Mohammed Hussain, a radiation onc ologist, because he copied and pasted other physicians’ assessments of patient illness in to his daily patient reports w ithout evidence that he actually performed the patient assessmen ts personally. Years later, in 2012, the VA Medical Center, St. Louis, Missouri, terminated Dr . Hussain’s contract when his sup ervisor found that he had been copying and pasting other doctors’ medical notes in a manner th at jeopardized patient health. Dr. Hussain alleges the St. Louis VA Medical Center terminated his contract in re taliation for his equal employment opportunity (EEO ) activity related to his 2003 termination. Two federal district courts have already rejected similar retal iation claims advanced by Dr. Hussain against the VA, holding that his errone ous and confusing recordkeeping provided a legitim ate, nondiscriminatory reason f or prior adverse actions of which he complained. See Hussain v. Principi ( Hussain I ), 344 F. Supp. 2d 86 (D.D.C. 2004) (ESH) aff’d sub nom. Hussain v. Nicholson ( Hussain II) , 435 F.3d 359 (D.C. Cir. 2006); Hussain v.2 Mansfield ( Hussain III ), No. 8:07-cv-330 (D. Md.). While Dr. Hussain bases his insta nt complaint on a more current adver se action, the alleged EEO act ivity is not current, and the legitimate nondiscriminatory r eason given by the St. Louis VA C enter to terminate his contract repeats itself. The VA moves for summary judg ment under Fed. R. Civ. P. 56 and for dismissal under Fed. R. Civ. P. 12(b)(6) fo r failure to exhaust administr ative remedies. Def .’s Mot. for SJ [Dkt. 54]. Dr. Hussain has opposed, Pl.’s Mem. in Opp’n [Dkt. 55], and the VA has replied, Def.’s Reply [Dkt. 56]. Th e motion will be granted.
I. BACKGROUND Dr. Hussain has previously all eged, in both the D.C. and Maryla nd federal district courts, that the VA retaliated a gainst him, first by giving him a negative review for generating erroneous and misleading medical records that endangered patien ts, and then by providing that negative review to othe r hospitals that reque sted references fr om Dr. Hussain’s previous affiliations. Both courts rejected claims that these acts were retaliatory. See Hussain I , 344 F. Supp. 2d at 106; Hussain v. Mansfield , Fed. App’x 419, 420 (4th Cir. Feb. 25, 2010) (per curiam) (quoting Hussain III ’s oral ruling dismissing claims) . These earlier cases form th e backdrop to the instant matter.
A. Dr. Hussain’s Prior Lawsuit i n the District of Columbia ( Hussain I ) Dr. Hussain is a Muslim male of Indian descent. Am. Compl. [Dk t. 14] ¶ 4. In 1978, he was hired as the Assistan t Chief of Radiation Oncology at the Washington D.C. VA Medical Center. See Def.’s Statement of Undisputed F acts [Dkt. 54-2] (Def’s Stateme nt) ¶ 1. When the Chief of Radiation O ncology retired in 1997, Dr. Hussa in was appointed Acting Chief.3 Hussain I , 344 F. Supp. 2d at 90. He was the only physician in Radiation Oncology from 19 97 until 2001. Id. On September 26, 2000, the Director o f the VA Medical Center an nounced that “Dr. Klemens Barth, then Chief of the Imaging Service, was appo inted Chief of the newly created Radiology Service,” resul ting from the merger of Radiat ion Oncology and the Imaging Service. Id. at 91. As a result, Dr. Hussai n reported to Dr. Barth and not the Medical Center’s Director. Id. On November 29, 2000, Dr. Hussain file d an informal EEO complai nt, to the effect that he had not only been de nied promotion into Dr. Bart h’s position but also effectively demoted when the Radiation Oncol ogy department merged into the Radiation Service. Def’s Statement ¶ 2. He complaine d of discrimination based on his ra ce, age, religion, and national origin. Id

. Dr. Hussain’s performance evalua tions suffered in the months af ter learning that he would not become chief of the new Radiology Service. Of par ticular concern was “his failure to conduct adequate follow-up wit h radiation patients,” which i s considered “essential.”
Hussain I , 344 F. Supp. 2d at 92. As a result, D r. Hussain’s privileges were renewed “with modifications” in June of 2003 for a three-month period instead of the customary two years. Id. Pursuant to the modifications, D r. Hussain was “required to doc ument the results of weekly examinations of his patients and that documentation would be re viewed monthly.” Id. Upon review in August, a Professional St andards Board completed a Me morandum on Dr. Hussain’s work, which found “an alarming pattern . . . that Dr. Hussain f inds it appropriate to copy and paste other physicians[’] assessm ent[s] into the electronic pat ient record without giving evidence that he has actually seen and exa mined the patient prior to, du ring, or after treatment.” Def. Mem. Ex. 1, 8/22/03 Professional Sta ndards Board Memorandum [Dk t. 54-3] at 3 (ECF4 numbering). Dr. Hussain had tak en extended sick leave in July 2003, prior to the review of his records. When a request for fo llow-up medical documentation co ncerning his illness was not returned, the Medical Center placed him on “Absence Without Lea ve” status. Dr. Hussain retired from the VA in September 2003. See Hussain I , 344 F. Supp. 2d at 93. In November 2003, Dr. Hussain ame nded his pending Complaint in the D.C. district court, alleging discri mination and retaliation. The d istrict judge granted summary judgment to the VA, noting that its conduct was rooted in “vali d and documented concerns regarding [Mr. Hussain’s] perf ormance and not in any animus tow ards his race, religion, or national origin. No reasonable f actfinder could conclude other wise.” Id. at 103. The D.C. Circuit affirmed summary judgment, Hussain II , 436 F.3d at 366. The Supreme Court denied certiorari. Hussain v. Nicholson , 549 U.S. 933 (2006).
B. Dr. Hussain’s Prior Lawsuit i n the District of Maryland ( Hussain III ) Dr. Hussain sued the VA again in the District of Maryland on De cember 18,
2007. See Hussain III , No. 8:07-cv-3370. Dr. Hussain com plained that the VA retalia ted against him by releasing unfavorable employment information to the Cive sta Medical Center in the fall of 2003, whereby Civesta declined to renew his clinical privile ges. See Def.’s Mem. of Law, Ex. 3, Mansfield Complaint [Dkt. 54-3] ¶ 76. He also complained about a negati ve reference made in 2004 to a doctor at Mercy Medical Center in Baltimore, M.D., which Dr. Hussain alleged caused him to receive a negative review from Mercy and lose his client relationship with Weatherby Locums, his temporary employment agency. See id. ¶¶ 62-68. Further, Dr. Hussain alleged retaliation because the VA provided a negative referenc e to the Frederick Memorial Hospital in the summer of 2006. Id. at ¶¶ 19-20.5 The Maryland District Court rej ected these claims and granted s ummary judgment to the VA. The distri ct judge concluded that There’s just nothing in the record at all with regard to these particular [timely] claims that suggests anything relative to r ace, color, national origin or religion, there’s just nothing here. Throughout, and this is the overarching decision which goes bac k to the District of Columbia’s District Court and Circuit Court cas es, and the Court finds here as well there are legitimate nondiscriminatory reasons for evaluating the plaintiff the way the defendant did. See Hussain v. Mansfield , Fed. App’x at 420 (quoting distri ct court oral ruling). The Fourth Circuit affirmed without oral argument. Id

. C. Dr. Hussain’s Current Lawsuit Now we come to the instant lawsu it, in which Dr. Hussain allege s that the St. Louis VA Center terminated his short-term contract in 2012 due to retaliation against him arising from his EEO activity in 2000. Am. Compl. ¶ 15. Dr. Hussain joined the St . Louis VA Center on April 16, 2012, a s a contract physician hired through a temporary employment agency. Id. ¶ 7. His initial contract was for a period of three months. Id. Dr. Barbara Sterkel, Chief of the Diagnostic Imaging Services Department, was his supervisor. Id. ¶ 9. Within days of Dr. Hussain’s arri val at the St. Louis VA Center , Dr. Sterkel met with him “to let him know that [ she] was concerned about the no tes that he was putting in, that they were confusing and there was evidence that he was plagiari zing his notes and using notes, that had been written previousl y, and the dates in his notes wh en they were actually dates that had occurred in the past.” Def.’ s Statement ¶ 17. Dr. Hussain did not challenge these observations. Both doctors discu ssed a blank template from whi ch Dr. Hussain could create6 acceptable notes going forward. Id. ¶ 18. 1 Dr. Sterkel met with Dr. H ussain again the very next week and again “let him know that there was still evidence that he was cutting and pasting and that his notes were confusing, a nd that [she] was concerned for the confusion that his recordkeeping would make in the chart, and that [the St. Louis VA Medical Center] would not be able to keep him.” Id. ¶ 19. The St. Louis VA Center ter minated Dr. Hussain’s contra ct on April 24, 2012, eight days after he had s tarted working there. Id. ¶ 19. Dr. Hussain filed an EEO complaint on August 8, 2012, claiming that the St. Louis VA Center violated his EEO rights by terminating his cont ract due to his national origin, race, religion, age, and in retalia tion for his prior EEO Activ ity. Id. ¶ 33. The instant Complaint brings only his retaliatio n claim to federal court. See Am. Compl. Count I. Dr. Hussain advances two aspects to his retal iation claim: first, that Dr. Sterkel terminated his contract due to his previous EEO activit y in 2000 and 2006; and second, that infurther retaliation for that EEO activity, the D.C. VA Center ha s provided “unjustified negative references to possible future employers.” Id. ¶ 24. Naturally, Dr. Hussain sees the f acts from a different perspect ive, and believes this lawsuit is based on contemporar y events. He asserts that Dr. Sterkel had contacted three positive references for Dr. Hussain on March 29, 2012 and he be gan work in St. Louis on April 16, 2012. Acknowledging that Dr. Sterkel talked to him once ab out his notes, Dr. Hussain admits that he “agreed there wer e errors in his n otes.” Pl.’s Opp’n at 19. He asserts that there were no further discussions r egarding his notetaking.

1 There is a disagreement of fact as to whether Dr. Sterkel or D r. Hussain developed and proposed the template but the po int is not material to the disp osition of the motion.7 Instead, Dr. Hussain states that he approached Dr. Sterkel on A pril 24, 2012, and requested time off for jury dut y. He recalls that Dr. Sterkel “specifically told me, is it the case in Washington, D.C.?” Id. at 20. And then, “without warning o r notice, Dr. Hussain’s employment was terminated at the St. Louis VA.” Id. He adds, “[t]he medical reco rds establis h that doctor [sic] Hussain made errors in his note taking and copied and pas ted notes. However, Dr. Hussain was never given a legitimate oppor tunity and time frame to addr ess these issues to which he admitted there were errors.” Id. Dr. Hussain believes that Dr. S terkel had a negative reference from the D.C. VA Medical Center (dating back to 2011). Id . He contends that there is e vidence from which a jury could conclude that he was ter minated, at least in part, “on ne gative information she received from the DC VA.” Id. He further contends that Dr. S terkel’s reference to his “D.C. case” shows the she had actual knowledge of hi s previous EEO activity in th e District of Columbia. He argues that he has shown pretex t behind the given reason for hi s termination from the St. Louis VA Center because: (1) “Dr. Sterk el made only minor efforts to address the note taking issue before terminating Dr. Hussain which proves pretext,” id. at 21; and (2) “Dr. Sterkel was aware of Dr. Hussiain’s [sic] prior EEO activity when she terminated his employment and therefore the termination was a pretext for discrimination,” id. at 22. In sum, “Dr. Hussain admits he made errors in his note taking but after submitting a template and a ttempting to correct the issues he was summarily terminated wit hout being given a reasonable oppor tunity to do so.” Id. at 29.
II. LEGAL STANDARDS Pursuant to Rule 56 of the Federal Rules of Civil Procedure, su mmary judgment shall be granted “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.” Fed. R . Civ. P. 56(a); accord Anderson v.8 Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). Moreover, s ummary judgment is prop erly granted against a party who “afte r adequate time for discovery and upon motion . . . fails to make a showing sufficient to establi sh the existence of an element e ssential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In ruling on a motion f or summary judgment, the co urt must draw all justifiable inferences in the nonmoving party’s favor. Anderson , 477 U.S. at 255. A nonmoving party, however, must establish more tha n “the mere existence of a scin tilla of evidence” in support of its position. Id. at 252. The nonmoving party must poi nt out specific facts sho wing that there is a genuine issue for trial. Celotex , 477 U.S. at 324. In addition, t he nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving pa rty must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is mere ly colorable, or is not significantly probative, summar y judgment may be granted.” Anderson , 477 U.S. at 249-50. “While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of hi s obligation to support his alle gations by affidavits or other competent evidence showing that there is a genuine issue for tr ial.” Hussain I , 344 F. Supp. 2d at 94 (quoting Calhoun v. Johnson , No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31. 1998)).
In McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), the Supreme Court laid out a three-part burden-sh ifting test necessary to establi sh a claim for ret aliation under Title VII: (1) the plainti ff must establish a prima facie case demonstrating that he was subjected to an adverse employment action under circumstances that would suppor t an inference of discrimination; (2) the defenda nt then may offer a legitimate, nondiscriminatory reason for its9 actions; if so, (3) the plainti ff must demonstrate that these n ondiscriminatory reasons were in fact pretextual justificati ons to hide discrimination. Taylor v. Small , 350 F.3d 1286, 1292 (D.C. Cir. 2003). “Title VII retaliation claims must be proved according to traditional principles, of but-for causation,” which obligates the pl aintiff to show that “the unl awful retaliation would not have occurred in the absence of the alleged wrongful action or actio ns of the employer.” Univ. of
Texas Sw. Med. Ctr. v. Nasser , 133 S.Ct. 2517, 2533 (2013).
III. ANALYSIS Dr. Hussain candidly admits tha t “[t]he medical records [in St. Louis] establish that doctor [sic] Hussain made errors in his note taking and co pied and pasted notes” from other doctors’ entries. Def.’s Me m. p. 20. This admission is dispos itive: it confirms the legitimate nondiscriminatory reason for the termination of his temporary c ontract by the St. Louis VA Center, which is identical to t he reason already found legitima te and non-discriminatory by three other federal courts. Dr. Hussain’s direct testimony suggests that he misremembers th e particulars of his conversation with Dr. Ste rkel concerning his jury duty. Wh ile Dr. Hussain testified to “a strong belief that during the proc ess of my investigation, they contacted the Washington VA,” Am. Compl. Ex. A, EEO Affidavit Testimony of Dr. Mohammed Hussa in, Dec. 5, 2010 (Hussain Aff.) [Dkt. 14-1] at 8., he had no admissible evidenc e to support that fact and Dr. Sterkel testified that she only l earned that Dr. Hussain had wo rked at the VA before his short stint in St. Louis when she r eceived his EEO Complaint. See Def.’s Reply Ex. 4, Deposition of Dr. Barbara Sterkel [Dkt. 56-3] at 32. More critical to the im mediate issue, Dr. Hussain testified that “when I went to her for pe rmission to participate in the j ury duty – and when I explained to her, she start off ta lking about jury duty, so I start talking about my time in Washington, D.C.10 She immediately asks that – whether your ca se is in Washington, D.C., and I told her no. This is about jury duty.” Hussain Aff. a t 8 (emphasis added). Accordi ng to Dr. Hussain’s own testimony, it would appear that Dr . Sterkel thought that Dr. Hu ssain was discussing the District of Columbia because that was wh ere he was to report for jury du ty. The accurate interpretation of t he conversation cannot be disce rned from the written record. However, even if Dr. Hussain’s memory correctl y recalls that Dr. Sterkel asked about his “D.C. case,” from whic h he infers knowledge of his pr ior EEO activity in the District of Columbia, it does not suppor t his EEO allegation. Retaliati on must be the “but for” cause of an employer’s adverse action; that is, a retaliatory motive can not be one reason among others. The most one might draw from Dr. H ussain’s inference of Dr. Ste kel’s knowledge (an inference the Defendant opposes) is that Dr . Sterkel may have had two rea sons to terminate Dr. Hussain abruptly: he admittedly provided poor patient care and he had, years earlier, engaged in EEO activity at a different VA Cent er hundreds of miles away. A mi xed motive does not support a retaliation claim. Univ. of Texas Sw. Med. Ctr. , 133 S. Ct. at 2533. In addition, the passage of time be tween Dr. Hussain’s EEO acti vity in the District of Columbia in 2000 (or i n Maryland in 2005) is too di stant from the termination of his services in St. Louis in 2012 to all ow a causal inference. “Wh ile the courts have not definitively ‘established the maximum time lapse between protected activity and alleged retaliatory actions,’ an action which occurs more than three months aft er the protect ed activity is not likely to qualify for such a causal inference.” Moore v. Castro , 192 F. Supp. 3d 18, 44 (D.D.C. 2016) (JDB) (quoting Brodetski v. Duffey , 141 F. Supp. 2d 35, 43 (D.D.C. 2001)). Dr. Hussain is correc t that no bright-line rule exists as t o when an adverse action is too far removed temporally from protected activity to warrant an inference, but the facts prese nted do not give the Court any11 reason to believe any such inferen ce is justified. The events alleged in this lawsuit involve a different supervisor, a differ ent hospital, and occurred years later. Recognizing these inconvenient fa cts, Dr. Hussain argues that D r. Sterkel should have allowed him more time to s how improvement in his note taki ng. Pl.’s Opp’n at 20. However, he identifies no basis for this argument, and the Cour t can find nothing to suggest that the St. Louis VA Center had an obligation to allow unacceptable patient care to continue for any period. Because Dr. Hussain admits that his notes were improperly cut a nd pasted, he has admitted that the reasons given for his termination were legiti mate and non-discriminatory, paralleling those reasons found legitimate in Hussain I, II and III . His counsel insists that the St. Louis VA must submit an expert t o testify to the standard of ca re, but the prior litigation between Dr. Hussain and the VA over this same infirmity in his medical practices supports summary judgment without the delay and expe nse of either experts or tri al. Finally, Dr. Hussain complains a bout alleged negative reference s provided by the St. Louis VA Center to non-VA hosp itals, identified as Scotland Memorial Hospital in Laurinburg, North Carolina; Alber marle Hospital in Elizabeth Ci ty, North Carolina; Dickerson County Health System in Iron M ountain, Michigan; and Rockford M emorial Hospital in Rockford, Illinois. Am. Compl. ¶¶ 19-20. Having failed to fil e an EEO charge concerning those references, however, he cannot litigate the issues here. Exhau stion of administrative remedies is commonly required in Title VII ca ses unless there is a basis fo r failure to do so. See Rashad v.
Wash. Met. Area Trans. Auth. , 945 F. Supp. 2d 152, 166-67 (D.D.C. 2013); see also Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 114 (2002). Dr. Hussa in provides no reason for his failure to follow the customary and, for him, well-trod path to the Equal Employment Opportunity Commission. Therefore, the Court will dismiss such complaints.12 IV. CONCLUSION For the reasons explained above, the Court will dismiss certain of Dr. Hussain’s claims for failure to exhaust administrative remedies and grant summary judgment to the VA on the remaining claims. A memoria lizing order accompanies this m emorandum opinion.

Date: August 25, 2017 /s/ ROSEMARY M. COLLYER United States District Judge