FIRST AMENDED COMPLAINT – Page 1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DAVID AXMANN §

§

Plaintiff §

§

v. § CIVIL ACTION NO. 3:22-cv-01635

§

U.S. ANESTHESIA PARTNERS §

HOLDINGS, INC. and U.S. ANESTHESIA §

PARTNERS OF TEXAS, P.A. §

§

Defendants § JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT

Plaintiff, for his Complaint against Defendants, would show as follows:

Parties

1. Plaintiff is an individual over the age of 40.

2. Defendants are a corporation and a professional association, together with other 

legal entities, and their predecessors in interest, operating as U.S. Anesthesia Partners (collectively, 

“USAP”). Defendant U.S. Anesthesia Partners Holdings, Inc. (“USAPH”) may be served with 

summons through any officer or management agent, including Robert Cowart, chief executive 

officer, at 12222 Merit Drive, Suite 700, Dallas Texas 75257, and Defendant U.S. Anesthesia 

Partners of Texas, P.A. (“USAPT”) may be served with summons through any officer or 

management agent, including Scott Holliday, D.O.

Jurisdiction and Venue

3. The Court has federal question subject matter jurisdiction over this action pursuant 

to 28 U.S.C. § 1331.

4. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.

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Facts

5. Plaintiff is an anesthesiologist, with a specialty in neurological anesthesia, licensed 

as a physician in Texas, over age 40, age 54 as of December 16, 2021, and as such protected against 

age discrimination. Defendants operate a corporate medical practice under the name of USAP

(“USAP”) focused on provision of anesthesia services in surgery, employing physician 

anesthesiologists and non-physician nurse anesthetists. Plaintiff, by his virtue of training, 

experience and education as an anesthesiologist, and his specialty in neurological anesthesia, was 

qualified to hold the position of an anesthesiologist with USAP and perform the duties of it 

throughout his employment by USAPT.

6. Plaintiff became a stockholder of USAPH, the parent of USAP, pursuant to a 

Stockholders Agreement dated November 30, 2017 and was employed by USAPT between 

November 2017 and January 2021 by virtue of his employment by one of Defendants’ 

predecessors in interest by acquisition, Pinnacle Anesthesia Consultants, PLLC, pursuant to a

Physician-Partner Employment Agreement between Plaintiff and Pinnacle Anesthesia 

Consultants, PLLC dated January 6, 2014. At the time of the acquisition by USAP of Pinnacle 

Anesthesia Consultants, PLLC, most of the anesthesiologists with Pinnacle Anesthesia 

Consultants, PLLC were over 50 years of age, and Pinnacle Anesthesia Consultants, PLLC

maintained a general rule of one board certified anesthesiologist in each operating room for each 

surgery. After the USAP acquisition, however, USAP instituted a policy whereby nurse 

anesthetists (generally younger than anesthesiologists) under the supervision of younger not 

necessarily board-certified anesthesiologists were used to staff operating rooms for each surgery, 

leading to many older anesthesiologists to leave USAP either by constructive discharge or 

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discharge as such. Prior to the termination of his employment by USAPT, Plaintiff observed this 

policy and resulting pattern and practice of USAP at Presbyterian Plano and HCA Columbia, 

hospitals in Plano, Texas where he performed anesthesia services after the purchase by USAP, 

through one or more legal entities, of Pinnacle Anesthesia Consultants, PLLC. Also after the 

purchase by USAP, through one or more legal entities, of Pinnacle Anesthesia Consultants, PLLC, 

USAP, through USAPH, assumed and then exercised financial control, and control over 

operational and human resources aspects, including involvement in employment decisions, of the 

business of USAPT and other like entities within USAP subsidiary to or affiliated with USAPH,

and like USAPT, employing anesthesiologists and nurse anesthetists, supplanting the prior 

financial control, and control over operational and human resources aspects, of the business of 

such entities by such entities themselves. USAP, through USAPH, as USAP’s parent, assumed and 

exercised such control by, among other things, limiting the compensation of anesthesiologists 

employed by such entities by instituting blended rate charging and flattening of compensation of 

anesthesiologists throughout the United States, resulting in flattened compensation of 

anesthesiologists despite differences in rates available to be charged, and resulting revenue 

attributable to anesthesiologists, in different parts of the United States, by instituting a centralized 

billing system, by instituting a centralized patient survey system and by reserving to USAP, 

through USAPH, and not USAPT and other like entities employing anesthesiologists and nurse 

anesthetists, decision-making authority regarding discipline and hiring and firing of 

anesthesiologists and nurse anesthetists. One or more physician employees of USAPT and other 

like entities employing anesthesiologists and nurse anesthetists have been members of the Clinical 

Operations Committee and Board of Directors of USAP or executives of USAP, through USAPH 

as USAP’s parent. Also after the purchase by USAP, through one or more legal entities, of Pinnacle 

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Anesthesia Consultants, PLLC, USAP, through representatives of USAPH, inquired in writing of 

the retirement plans of anesthesiologists over 40 years of age employed by such legal entities.

7. On July 22, 2020, Plaintiff, in a meeting with a human resources representative of 

Defendants, Ashley Sharp, and another representative of Defendants, Dr. Stuart Simon,

purportedly the chairman of Defendants’ human resources committee, was subjected to patently 

false allegations concerning his performance as a medical professional. Such representatives

initially refused to provide the substance of the allegations in writing or allow Plaintiff to respond

to any such allegations. Only after the meeting, and a request by email from Plaintiff dated 

September 8, 2020 acknowledged by email from Ms. Sharp dated September 8, 2020, did 

Defendants offer a non-exhaustive list of such allegations by email from Ms. Sharp dated 

September 23, 2022 to which Plaintiff responded in an email dated September 28, 2020 by 

indicating the lack of any basis to certain of the claimed non-exhaustive list of allegations, making 

a request for additional information about certain of the claimed non-exhausted allegations and 

making a request for a complete, exhaustive list of any claimed allegations. Defendants did not 

provide the requested additional information or the complete exhaustive list of any claimed 

allegations.

8. Also on July 22, 2020, Defendants demanded that Plaintiff submit to coaching 

sessions from a purported physician counselor, Dr. David Teegarden, as a condition of continued 

employment with Defendants. By emails dated August 5, 2020, August 11, 2020, August 13, 2020

and September 23, 2020 from Ms. Sharp to Plaintiff, Ms. Sharp further reiterated the demand of 

Defendants that Plaintiff receive coaching sessions from Dr. Teegarden. By his email dated 

September 28, 2020, Plaintiff disagreed with the necessity of coaching sessions or any other review 

of his performance as a medical professional by Dr Teegarden. By email dated November 9, 2020

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from Ms. Sharp to Plaintiff, Defendants invited Plaintiff to a meeting with a USAP human 

resources committee on November 12, 2020. By email dated November 12, 2020, Plaintiff 

expressed to Ms. Sharp his willingness to meet with the human resources committee so long as he 

was permitted to attend the meeting with counsel. Defendants did not agree to such a meeting with 

counsel. Counsel for Plaintiff further reiterated Plaintiff’s willingness to meet with the human 

resources committee with counsel by email dated December 15, 2020. By email dated January 5, 

2021 from Ms. Sharp to Plaintiff, Defendants again reiterated the demand that Plaintiff submit to 

coaching sessions from Dr. Teegarden and finally confirmed that Defendants would not agree to 

another individual for coaching sessions, and insisted that Plaintiff advise Defendants whether it 

would attend coaching sessions with Dr. Teegarden by January 8, 2021.

9. Despite the baseless nature of Defendants’ allegations against him and their related 

demand for coaching sessions with Dr. Teegarden, Plaintiff offered, including by email to Ms. 

Sharp dated September 28, 2020, to submit to a review by a mutually agreed-upon qualified 

medical professional. Defendants refused to agree to Plaintiff’s offer, insisting, as indicated, by 

email dated January 5, 2021, that Plaintiff submit to coaching sessions only by Dr. David 

Teegarden. After September 28, 2020, Plaintiff and his counsel made numerous attempts to 

cooperate with Defendants to find another mutually agreeable and qualified candidate for coaching 

sessions on the assumption that Defendants’ desire was for an objective review of Plaintiff’s 

performance as a medical professional. Defendants’ refusal to consider an alternative confirmed 

that Defendants’ objective was termination of Plaintiff’s employment consistent with their agebased harassment of Plaintiff as an older anesthesiologist. Defendants lacked adequate 

documentation of any basis for its age discriminatory demand for coaching and did not investigate 

Plaintiff’s complaints of age-based harassment and other age discrimination. Defendants’ claim of 

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purportedly inadequate professional performance of Plaintiff was false in all events, and 

Defendants did not apply its own policies relating to evaluation of clinical performance in seeking 

to address any purportedly inadequate professional performance by Plaintiff. Notwithstanding the 

claimed or implied purportedly inadequate professional performance of Plaintiff, Plaintiff 

continued to be scheduled in operating rooms at multiple facilities staffed by physician employees 

of USAPT between July 2020 and February 2021.

10. Plaintiff was, in being subjected to the treatment referred to in paragraphs 7, 8 and 

9, treated in a disparate manner compared to younger anesthesiologists. Plaintiff was not the only 

older anesthesiologist employed by USAP, whether or not employed by USAPT or other 

immediate employers of USAP anesthesiologists and nurse anesthetists, subjected to such 

treatment or other treatment to which younger anesthesiologists were not subjected. USAP, 

through USAPT as USAP’s parent, and other immediate employers of USAP anesthesiologists 

and nurse anesthetists, followed a pattern and practice between 2017 and 2021 of harassing older 

anesthesiologists by demands for counseling based on claims of inadequate professional conduct 

or misconduct as professionals, and otherwise harassing older anesthesiologists, while not doing 

so in the case of younger anesthesiologists, in the manner reflected in paragraphs 7, 8 and 9. The

treatment of Plaintiff by USAPT referred to in paragraphs 7, 8 and 9 was an instance of such 

pattern and practice.

11. Plaintiff engaged in protected conduct by complaining to Defendants, including 

through its counsel and human resources representatives, including by an email from Plaintiff to a 

representative of Defendants dated September 28, 2020 and an email from his counsel dated 

October 9, 2020, that he was being subjected to age-based harassment and other age 

discrimination. 

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12. By letter dated January 29, 2021, USAPT involuntarily terminated Plaintiff’s 

employment without cause. There was no need for Defendants to terminate Plaintiff. In fact, the 

reason for Plaintiff’s termination was USAP’s false allegations against Plaintiff referred to in 

paragraphs 7, 8 and 9. That reason and other circumstances surrounding the termination of Plaintiff 

constituted a pretext for age discrimination. 

13. USAPT and other entities employing anesthesiologists as a part of USAP followed 

a pattern and practice of forcing termination by resignation or terminating older anesthesiologists 

while not doing so in the case of younger anesthesiologists and replacing the older 

anesthesiologists with younger anesthesiologists and nurse anesthetists. The treatment of Plaintiff 

by USAPT was an instance of such pattern and practice.

14. Since his termination, Plaintiff has suffered lost compensation and benefits, 

including equity benefits, associated with his employment by Defendants in an amount not less 

than $500,000 per year less only mitigating compensation and benefits. Apart from being the 

provider of equity benefits to Plaintiff, there are other connections between Defendants. The 

connections between Defendants include the fact that, under section 2.8 of the employment 

agreement between the predecessor entity to USAPT and Plaintiff governing the employment of 

Plaintiff by USAPT, confidentiality obligations of USAP as a whole, under the fifth recital and 

section 2.10 of the employment agreement, Plaintiff was subject to professional reviews by an 

entity referred to as Pinnacle Clinical Governance Board, including annually after age 68, under 

section 5.1 of the employment agreement, Plaintiff’s compensation under a “Pinnacle 

Compensation Plan” was made payable under policies of USAP, under section 8 of the 

employment agreement, Plaintiff was a “Physician-Partner” as, among other things, designated by 

the Pinnacle Clinical Governance Board and USAP, and under section 6.25 of the employment 

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agreement, USAP included as part of the employment agreement a Code of Conduct governing 

the representation of physicians associated with USAP, including its associated clinical providers’ 

quality care and professional demeanor, providing that any party who signs an employment 

agreement with USAPT will be deemed to be governed by the Code and progressive discipline, 

including termination and under section 10.13 of the employment agreement, the employment 

agreement became effective only upon a merger agreement between USAPH and other USAP 

entities, including USAPT. Copies of the employment agreement and attachments are annexed 

hereto as Exhibit A. The connections between Defendants also include provisions of the 

stockholders agreement between Plaintiff and USAPH, including the definition of “Cause” in 

section 1.01 permitting an involuntary repurchase of shares of a physician stockholder employee 

of USAPH, one or more of its Subsidiaries or an affiliated Position Practice [see definition of 

Physician Stockholder in section 1.01] pursuant to section 6.01(z)(i) and (ii). A copy of the 

stockholders agreement is annexed hereto as Exhibit B. Plaintiff has not otherwise admitted that 

there is no employment relationship between Plaintiff and USAPH. 

15. By charge of discrimination dated October 15, 2021, Plaintiff filed a charge of 

discrimination asserting a claim of age discrimination against USAP and all affiliated entities, and 

by notice of right to sue from the Equal Employment Opportunity Commission dated May 16, 

2022, Plaintiff was granted a notice of right to sue on his claims of age discrimination and 

retaliation under the Age Discrimination in Employment Act arising from the charge, and has filed 

this action within the time permitted by the notice of right to sue. Copies of the charge of 

discrimination and notice of right to sue and attachments are annexed hereto as Exhibit C.

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Claims

16. Plaintiff would show that he was subjected by Defendants to discrimination on the 

basis of age in violation of the Age Discrimination in Employment Act, and is entitled to recover 

his actual damages, liquidated damages, attorney’s fees, prejudgment interest and costs of court.

17. Plaintiff would show that he was subjected by Defendants to retaliation in violation 

of the Age Discrimination in Employment Act, and is entitled to recover his actual damages, 

liquidated damages, attorney's fees, prejudgment interest and costs. 

18. Plaintiff demands a jury.

WHEREFORE, Plaintiff prays for the relief referred to in paragraphs 13 and 14 and all 

other relief to which he may be entitled. 

Respectfully submitted,

/s/ Robert E. Goodman, Jr.

Robert E. Goodman, Jr.

State Bar No. 08158100

reg@kilgorelaw.com

Kilgore & Kilgore, PLLC

3141 Hood Street, Suite 500

Dallas, Texas 75219

(214) 379-0843 Telephone

(214) 379-0840 Telecopy

ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served on all parties in this matter using the 

electronic filing system of this Court and/or by email on September 12, 2022.

Jennifer A. Youpa

jyoupa@littler.com

Matthew A. Swanger 

mswanger@littler.com

Littler Mendelson, P.C.

2001 Ross Avenue 

Suite 1500, Lock Box 116

Dallas, Texas 75201 

/s/ Robert E. Goodman, Jr.

Robert E. Goodman 

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