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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

GERALD A. MASTAW, M.D., 

 Plaintiff, 

 v. Case No: 3:20cv5888-RV/EMT 

 

WEST FLORIDA MEDICAL CENTER 

CLINIC, P.A., and JAMES FROST, M.D., 

 Defendants. 

_____________________________________/ 

ORDER

 The plaintiff, Gerald A. Mastaw, M.D., has filed this action against his former 

employer, West Florida Medical Center Clinic, P.A. (MCC), and James Frost, M.D. 

(together, the defendants). He alleges breach of contract (count 1); retaliation under 

the Family Medical Leave Act (FMLA) (count 2); violations of the Americans with 

Disabilities Act (ADA) (count 3); and state law defamation (count 4). Discovery is 

closed, and the defendants have filed a motion for summary judgment (doc. 36). The 

plaintiff has filed a response and declaration in opposition, and the defendants have 

filed a reply thereto. 

I. Standard of Review

 Summary judgment is appropriate if all the pleadings, discovery, affidavits, 

and disclosure materials on file show there is no genuine disputed issue of material 

fact, and the movant is entitled to judgment as matter of law. Fed. R. Civ. P. 56(a), 

(c). The plain language of Rule 56 mandates the entry of summary judgment, after 

adequate time for discovery and upon motion, against any party that fails to make a 

showing sufficient to prove the existence of an element essential to that party’s case 

and upon which that party will bear the burden of proof at trial. Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). 

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 Summary judgment is inappropriate “[i]f a reasonable factfinder evaluating 

the evidence could draw more than one inference from the facts, and if that inference 

introduces a genuine issue of material fact[.]” Allen v. Board of Public Educ. for 

Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007). An issue of fact is “material” if it 

might affect the outcome of the case under the governing law. Anderson v. Liberty 

Lobby Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the record, viewed as a 

whole, could lead a reasonable fact finder to return a verdict for the non-movant. Id.

In considering a motion for summary judgment, the non-movant’s evidence is to be 

believed and all reasonable inferences drawn in his favor. Id. at 255. 

 Employment discrimination claims are fact-intensive, but it is well established 

that “the summary judgment rule applies in job discrimination cases just as in other 

cases. No thumb is to be placed on either side of the scale.” Wilson v. B/E Aerospace, 

Inc., 376 F.3d 1079, 1086 (11th Cir. 2004); accord Abdu-Brisson v. Delta Air Lines, 

239 F.3d 456, 466 (2d Cir. 2001) (“[I]t is now beyond cavil that summary judgment 

may be appropriate even in the fact-intensive context of discrimination cases.”). 

II. Background

 Despite the parties’ lengthy summary judgment filings, the pertinent facts can 

be set forth briefly. These facts are either undisputed or, if disputed, resolved in the 

plaintiff’s favor where supported by evidence in the record. 

 The plaintiff is a pain management doctor. In or about 2010, he was diagnosed 

with Post-Traumatic Stress Disorder (PTSD) caused by his prior military service and 

deployment to Iraq. In August 2013---about three years after his PTSD diagnosis---

he was hired by MCC as an associate physician. He was later elevated to shareholder, 

and he entered into a Shareholder Employment Agreement (Agreement) at that time. 

The Agreement provided that the terms of his employment would be governed by 

MCC’s Bylaws, which were incorporated therein. The Bylaws established detailed 

policies and procedures for addressing disciplinary issues. 

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 Under the Bylaws, a disciplinary proceeding can be initiated by any person if 

there are grounds for discipline pursuant to Section 18.02. That section provides that 

a practitioner is subject to discipline if his “activities or professional conduct” are: 

(1) Detrimental to patient safety or to the delivery of 

quality patient care; 

(2) Below applicable professional standards; 

(3) Contrary to applicable standards of professional ethics; 

(4) Contrary to applicable legal requirements; 

(5) Contrary to the Corporation’s Code of Conduct (as 

then in effect); 

(6) Contrary to the Corporation’s bylaws; or 

(7) Disruptive to the Corporation’s operations or to the 

delivery of health care. 

The subject of the charge must be notified in writing (and provided a copy of 

the charge) within 48 hours. Once a disciplinary proceeding has begun, the Medical 

Director will interview the practitioner and provide a report to the Board of Directors 

(the Board) within 10 days thereafter. After the report is received, and if the Board 

determines that any material facts are in dispute, the Board will generally hold a factfinding hearing and perform an investigation into the matter. The practitioner shall 

be notified and afforded an opportunity to provide information. Despite the status of 

any investigation, however, the Bylaws explicitly provide that the Board shall at all 

times retain the authority and discretion to take whatever action is warranted by the 

circumstances, including inter alia “termination of the investigative process or other 

action.” 

The Bylaws provide that the Board’s actions may include, without limitation: 

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(1) Determining no corrective action will be taken and, if 

the Board of Directors determines there was no credible 

evidence for the complaint in the first instance, removing 

any adverse information from the practitioner’s file; 

(2) Deferring action for a reasonable time where 

circumstances warrant, not exceeding thirty (30) days; 

(3) Issuing letters of admonition, censure, reprimand, or 

warning, although nothing herein shall be deemed to 

preclude department chairs from issuing written or oral 

warnings to the affected practitioner outside of the 

mechanism for corrective action. In the event such letters 

are issued, the affected practitioner may make a written 

response, which shall be placed in the practitioner’s file; 

(4) Imposing monetary sanctions in the form of a fine; 

(5) Determining terms of probation or special limitations 

upon practice, including, without limitation, requirements 

for mandatory consultation or monitoring or the 

practitioner’s completion of specific conditions or 

requirements; 

 

(6) Termination of employment contract; 

(7) Referring the matter to the Corporation’s Shareholders 

for expulsion of the practitioner; 

(8) Taking other actions deemed appropriate under the 

circumstances. 

The Board of Directors’ determination of the appropriate 

discipline shall become effective as the final decision of 

the Board of Directors. 

 Particularly relevant to this case, Article XVIII of the Bylaws concludes with 

the following (emphasis added): 

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Notwithstanding anything in this Article XVIII or in these 

Bylaws to the contrary, any action of the Corporation 

which must comply with the provisions of the Health Care 

Quality Improvement Act of 1986 (42 U.S. Code §§11101 

et seq.) [HCQIA or Act] shall follow procedures required 

under the Act, the results of which shall be reported as 

required under the Act.

 The defendant, Dr. Frost, is a medical doctor and a shareholder of MCC. He 

was also MCC’s Medical Director and served as an advisor to the Board. During the 

time period relevant to this case, Andy Popple was MCC’s Executive Vice President. 

The plaintiff alleges---and for purposes of summary judgment I accept as true---that 

Popple was a “bully” with a very abrasive, aggressive, and erratic management style. 

In or about early 2019, the Board received a “letter of concern” and numerous 

complaints regarding the plaintiff’s practice. The concerns and complaints included 

frequent tardiness and absenteeism; behavior issues; lack of attentiveness; excessive 

cell phone use; not putting patients first; and failure to comply with certain statutory 

obligations. The Board reviewed the letter and determined that a Correction Action 

Plan (CAP) was warranted. The CAP identified corrective measures that the plaintiff 

was required to take to improve his clinical practice and comply with his obligations. 

He alleges that the issues identified in the CAP stemmed from his PTSD, which was 

exacerbated by Popple and his management style. Nevertheless, the plaintiff agreed 

to the terms of the CAP and executed the agreement on March 21, 2019.1

 The CAP 

explained that noncompliance with the CAP would result in additional disciplinary 

1

 The plaintiff conceded during deposition that MCC brought some of the concerns to his attention 

“multiple times in the past.” Further, he doesn’t really dispute them (or at least not all of them); he 

mostly takes issue with some of the wording of those concerns. For example, one of the concerns 

was his “frequent” tardiness and absenteeism. The plaintiff readily admits that he was sometimes 

tardy and absent from work, which required that his appointments be cancelled or rescheduled. He 

just questions whether it was “frequent” because he maintains that is a “vague word.”

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action by the Board pursuant to the Bylaws, including termination and the need to 

report certain disciplinary actions to the National Practitioner Data Bank (NPDB). 

 In or about August/September 2019, the plaintiff asserts that Popple triggered 

his PTSD symptoms, so he requested leave under the FMLA. Specifically, he asked 

that he be allowed to take 30-60 minute breaks during the day to deal with any “flareups” of his PTSD whenever they presented, along with a one hour counseling session 

per week with his mental health counselor, Marci Shemaria. MCC granted this 

request. In addition, on September 12, 2019, the plaintiff (through his attorney) 

requested an accommodation under the ADA. The requested accommodation was 

for him to have a “direct report supervisor” who would report to the Board so that 

he (plaintiff) could be separated from and have little or no contact with Popple. MCC 

did not accommodate this latter request. In fact, the plaintiff contends that they tried 

to “force” him to have a meeting with Popple, which further triggered his PTSD. 

 Consequently, on September 22, 2019, the plaintiff told his practice manager 

via text message that he wouldn’t be at work the next day because he had to attend 

an emergency counseling session. The following day, September 23, 2019, he again 

sent his manager a text message advising that he had to attend emergency counseling 

and would not be able to work the next day, September 24th. MCC had to cancel all 

his patients for both days. 

 The plaintiff returned to work on September 25, 2019, and he began to see 

patients without providing Dr. Frost documentation or information to confirm that 

he could safely treat patients after his self-declared need to have emergency sessions 

with his counselor over the prior two days.2

 Dr. Frost attempted to speak with the 

2

 The record contains a letter from Shemaria, dated September 24, 2019, indicating that the plaintiff 

was able to return to work and care for patients as long as he was not exposed to “similar triggering 

circumstances.” The letter was addressed to the Chairman of MCC’s Board of Directors, and Dr. 

Frost testified (and plaintiff does not appear to dispute) that he never saw it until he was preparing 

for his deposition. 

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plaintiff on the morning of September 25th to address the situation (because he claims 

he had concerns about plaintiff’s ability to provide safe patient care), but the plaintiff 

refused to speak to him about it because he had patients to see. Dr. Frost immediately 

suspended him, and shortly thereafter the Board held a meeting in accordance with 

the Bylaws (which the plaintiff attended). The Board determined that in light of the 

plaintiff’s behavior and alleged insubordination, and in the interest of patient safety, 

his suspension would continue until he provided an appropriate medical evaluation 

prepared by a qualified medical doctor to confirm that he could safely treat patients. 

Once the plaintiff was suspended for more than 30 days, MCC was obligated by law 

to report this fact to the NPDB, which it did. 

 During the plaintiff’s suspension, Dr. Andrew Van Brocklin---another pain 

management doctor at MCC---provided interim care for his patients. This entailed 

reviewing the plaintiff’s charts. The defendants contend that the chart review raised 

questions about the plaintiff’s treatment of his patients, particularly his practice of 

prescribing controlled substances. Dr. Frost performed a professional review of 50 

of the plaintiff’s patients, and the review allegedly revealed (but the plaintiff denies) 

that he had failed to comply with the objective legal requirements that govern a pain 

management practice, e.g., requiring urinalysis testing of certain patients; review of 

test results; and documentation to support the prescriptions that he was ordering and 

refiling. Dr. Frost presented his findings to the Board, which held a hearing and then 

terminated the plaintiff. 

 The plaintiff originally filed this case in Florida state court, alleging breach of 

contract; FMLA retaliation; violation of the ADA; and defamation under state law. 

The defendants removed the action to this federal court. Early on, the plaintiff moved 

for summary judgment on his breach of contract claim. He argued that he had been 

entitled to (but was denied) a proper hearing under the HCQIA and MCC’s Bylaws. 

This, he maintained, breached the terms of the Agreement, which was the basis for 

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the breach of contract cause of action. I rejected the plaintiff’s argument by written 

order dated May 3, 2021 (doc. 18), agreeing with the defendants that: 

MCC’s Bylaws provide that “[n]otwithstanding anything 

in this Article XVIII or in these Bylaws to the contrary, 

any action of the Corporation which must comply with the 

provisions of the [HCQIA] shall follow procedures 

required under the Act, the results of which shall be 

reported as required under the Act.” See Bylaws § 

18.09(e). As stated above, MCC is not required to comply 

with the provisions of the HCQIA regarding disciplinary 

review proceedings. MCC is, however, required by law to 

transmit certain information in a specified form and 

procedure to the Board of Medical Examiners, including 

reports of any applicable adverse professional review 

actions taken against a physician. See 42 U.S.C. § 

11133(a)(1)(A); § 11134 (emphasis added). 

The reference in the Bylaws to the HCQIA unambiguously 

refers to these mandatory reporting obligations, not to 

MCC’s own policies and procedures applicable to 

disciplinary proceedings. Under Dr. Mastaw’s 

interpretation, the detailed procedures set forth in multiple 

subsections within Section 18 of the Bylaws regarding 

disciplinary proceedings, investigations and requirements 

would be rendered superfluous. This interpretation would 

“ignore[] the cardinal principle of contract interpretation 

which requires that a contract be read and interpreted 

as a whole, finding meaning in all parts if possible, while 

finding meaning in the whole.” Metric Systems Corp. v. 

McDonnell Douglas Corp., 850 F. Supp. 1568, 1585 (N.D. 

Fla. 1994) (internal citation omitted). Therefore, MCC's 

obligations under the Bylaws are not augmented in any 

way by reference to the HCQIA’s reporting requirements. 

Id. at 4 (emphasis original). 

Discovery is complete and, as previously noted, the defendants now move for 

summary judgment. 

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III. Discussion 

A. Breach of Contract 

 As the defendants argue in their motion for summary judgment, the plaintiff’s 

breach of contract claim is without merit and based on a fundamental misreading of 

the Agreement and Bylaws. I have previously considered this issue and ruled against 

the plaintiff’s claim. Therefore, summary judgment must be, and is, granted in favor 

of the defendants on this claim for the reasons stated in my May 3rd order.3

B. FMLA Retaliation 

 When a plaintiff asserts a claim of retaliation under the FMLA, in the absence 

of direct evidence of the employer’s intent, courts generally apply the same burdenshifting framework used for Title VII discrimination claims set forth by the Supreme 

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Strickland 

v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 

2001). “In order to state a claim of retaliation, an employee must allege that: (1) he 

engaged in a statutorily protected activity; (2) he suffered an adverse employment 

decision; and (3) the decision was causally related to the protected activity.” Id.

After the plaintiff establishes his prima facie case, the burden then shifts to 

the employer to rebut the presumption of retaliation by giving a legitimate and nondiscriminatory reason for the employment decision. See Holifield v. Reno, 115 F.3d 

1555, 1564 (11th Cir. 1997). This intermediate burden is exceedingly light and, once 

it has been met, the burden shifts back to the plaintiff. Id. at 1564-65. 

3

 The plaintiff acknowledges my prior ruling, as he must. However, he suggests it is not controlling 

here because there I was considering his motion for summary judgment, but now the defendants 

have moved for summary judgment so “the standards for disputes of facts are reversed” and thus 

a different result is warranted. That may be true if my previous ruling had been based on a disputed 

question of fact that I was required to resolve against the plaintiff at that time. But it wasn’t. My 

ruling was instead based on an objective, plain, and common sense reading of the Agreement and 

Bylaws. 

  

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 At the third and final stage of the McDonnell Douglas analysis, the plaintiff 

must establish with “significantly probative evidence” that the stated reason for the 

adverse job action was merely a pretext for retaliation. See, e.g., Brooks v. County 

Commissioners of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). The 

Eleventh Circuit has repeatedly stressed that in attempting to show pretext, a plaintiff 

cannot simply quarrel with the wisdom of the employer’s reason; instead, as long as 

the reason “is one that might motivate a reasonable employer” to do what it did, the 

plaintiff “must meet that reason head on and rebut it.” See Chapman v. AI Transport, 

229 F.3d 1012, 1030 (11th Cir. 2000). A proffered reason will not be found to be a 

pretext for discrimination “unless it is shown both that the reason was false, and that 

discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 

515 (1993); accord Springer v. Convergys Customer Mgmt. Group, 509 F.3d 1344, 

1349 (11th Cir. 2007) (same); see also Alvarez v. Royal Atlantic Devs. Inc., 610 F.3d 

1253, 1264 (11th Cir. 2010) (“Showing only that the employer’s proffered reason is 

false does not necessarily entitle the plaintiff to get past summary judgment.”). 

Ultimately, in analyzing discrimination claims, district courts must be careful 

not to allow plaintiffs to litigate whether they were good employees who deserved 

better treatment. Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002); accord, e.g., 

Alvarez, 610 F.3d at 1266 (noting “the fact that [an employee] thinks more highly of 

her performance than her employer does is beside the point”). The issue is not the 

wisdom or accuracy of the employer’s action, nor are courts concerned with whether 

it was prudent or based upon valid grounds. Alvarez, 610 F.3d at 1266 (“The inquiry 

into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be 

blunt about it, not on reality as it exists outside the decision maker’s head.”). Instead, 

the court’s “sole concern” is whether unlawful discriminatory animus motivated the 

employment action. Id. Simply put, the law doesn’t require an employer’s decisions 

to be reasonable or fair:

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We do not sit as a “super-personnel department,” and it is 

not our role to second-guess the wisdom of an employer’s 

business decisions—indeed the wisdom of them is 

irrelevant—as long as those decisions were not made with 

discriminatory motive. That is true no matter how 

medieval a firm’s practices, no matter how high-handed its 

decisional process, no matter how mistaken the firm’s 

managers. 

Id. (citations and brackets omitted).

 Summary judgment is appropriate on the FMLA retaliation claim. Assuming 

arguendo that the plaintiff has established his prima facie case, the defendants have 

discharged their “exceedingly light” intermediate burden by providing a legitimate 

and non-discriminatory reason for the suspension and subsequent termination, i.e., 

they believed that the plaintiff was not safely and properly treating his patients. The 

plaintiff must come forward with “significantly probative evidence” that the asserted 

reason was merely a pretext for retaliation. He must establish from evidence in the 

record that the stated reason was both false and that FMLA retaliation was the real 

reason. This he has failed to do.4

C. Violation of the ADA 

 To establish a prima facie case of disability discrimination under the ADA, 

the plaintiff must prove that (1) he has a disability; (2) he is a qualified individual; 

and (3) he was subjected to unlawful discrimination because of his disability. Davis 

v. Florida Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). A “qualified 

4 For example, in his opposition to summary judgment the plaintiff avers that Dr. Frost had no prior 

experience with PTSD and was not experienced enough in pain management to conclude that the 

plaintiff was unfit to serve patients. Even if true, that may at best establish Dr. Frost was mistaken. 

But as earlier noted, I am not concerned with whether his reasons were good or bad; right or wrong; 

fair or unfair. Instead, my “sole concern” is whether there is sufficient evidence (taken as true on 

summary judgment) that Dr. Frost and MCC were motivated to retaliate against the plaintiff based 

on his use of the FMLA. 

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individual with a disability” is an individual with a disability who can perform the 

essential functions of the job with or without a reasonable accommodation. Id. 

Under the ADA, “reasonable accommodations” may include, inter alia, “‘job 

restructuring, partttime or modified work schedules, reassignment to a vacant 

position . . . and other similar accommodations for individuals with disabilities.’” 

Stewart v. Happy Herman’s Cheshire Bridge, 117 F.3d 1278, 1285 (11th Cir. 1997) 

(quoting 42 U.S.C. § 12111(9)(B)). However, “‘the use of the word ‘reasonable’ as 

an adjective for the word ‘accommodate’ connotes that an employer is not required 

to accommodate an employee in any manner in which that employee desires.’” Id. 

Stated differently, an employee is not entitled to any and all accommodations of his 

choice, but only to a reasonable accommodation. Id. at 1286. 

 As earlier noted, the denied accommodation that the plaintiff requested here 

was to have a direct report supervisor who would report to the Board so that he could 

be separated from (and have no contact with) Popple in order to avoid triggering his 

PTSD. I considered this issue on very similar facts in Prichard v. Dominguez, 2006 

WL 1836017 (N.D. Fla. June 29, 2006). 

The plaintiff in Prichard suffered depression relating to threats, harassment, 

and pressure coming from her direct supervisor, Major Karen A. Finn. Her therapist 

determined that she needed to be separated from Major Finn and concluded that this 

requested accommodation was “absolutely necessary for [the plaintiff’s] health and 

well-being.” Id. at *3. The employer denied her request and she filed suit. In granting 

summary judgment for the defendant, I held that 

employees may not use the Act---as Plaintiff is attempting 

here---as the means to obtain a transfer from an 

undesirable boss. On this issue, there is an overwhelming 

unanimity of opinion in courts throughout the country. 

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Id. at *13-14 (collecting and quoting from 11 cases from courts around the country 

and observing that “the above case law, and literally dozens of other cases not cited, 

make clear that Plaintiff’s suggested accommodation was unreasonable as a matter 

of law”). That law is equally applicable here. 

Consequently, as there is no genuine disputed issue of material fact, summary 

judgment is appropriate on the ADA claim as well. 

D. Defamation 

To establish a cause of action for defamation under Florida law, “a plaintiff 

must plead and prove that a defendant published (1) false and defamatory statements 

of and concerning him, (2) without reasonable care as to whether those statements 

were true or false, (3) resulting in actual damage to the plaintiff.” Smith v. Bendix 

Field Eng’g Corp., 1992 WL 316313, at *3 (M.D. Fla. 1992) (citing Miami Herald 

Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3rd DCA 1982), Restatement (Second) of 

Torts § 580B (1977)). Even if a statement is false and defamatory, a defendant is not 

liable for defamation if: (1) the matter is published on an occasion that makes it 

conditionally privileged; and (2) the privilege is not abused. See Pierson v. Orlando 

Regional Healthcare Sys. Inc., 2010 WL 1408391, at *9 (M.D. Fla. April 6, 2010) 

(citing Nodar v. Galbreath, 462 So.2d 803 (Fla. 1984)). This privilege has been held 

to apply to communications between doctors at a hospital regarding another doctor 

and in statements concerning a doctor’s fitness. See id. (citing Magre v. Charles, 729 

So. 2d 440 (Fla. 5th DCA 1999)). To overcome this privilege, a plaintiff must allege 

and prove “express malice”---that is, “ill will, hostility, and evil intention to injure 

and defame.” See Demby v. English, 667 So.2d 350, 353 (Fla. 1st DCA 1995). The 

Supreme Court of Florida has unequivocally held that all three elements (ill will, 

hostility and evil intention to defame and injure) and more must be shown. Boehm 

v. American Bankers Ins. Group, Inc., 557 So.2d 91, 94 (Fla. 3rd DCA 1990) (citing 

Nodar, 462 So.2d at 811 n.8). “It is insufficient that the speaker have generalized 

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feelings of hostility and malice towards the Plaintiff. Only if the Plaintiff 

demonstrates the primary motivation for the statements uttered was express malice, 

is the privilege overcome.” Id. (citing Nodar, 462 So.2d at 812 (emphasis original)). 

As noted above (and in my prior May 3rd order), MCC was required by law to 

transmit the information regarding the plaintiff’s suspension to the NPDB once it 

exceeded 30 days. It was a privileged communication, and the plaintiff has failed to 

produce sufficient evidence of “express malice” (ill will, hostility, and evil intention 

to injure and defame) to overcome the privilege. Summary judgment is appropriate 

on this claim, too.5

IV. Conclusion

 The defendants’ motion for summary judgment (doc. 36) is GRANTED. The 

clerk is directed to enter judgment in favor of the defendants, along with taxable 

costs, and close this case.

DONE and ORDERED this 26th day of April 2022 

/s/ Roger Vinson 

 ROGER VINSON 

 Senior United States District Judge

5

 The plaintiff claims “express malice” can be inferred because the defendants failed to reasonably 

accommodate his request to be separated from Popple, which he contends is evidence of bad faith. 

As previously stated, however, the requested accommodation was unreasonable as a matter of law. 

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