Labor & Employment – Civil Rights – Gender Discrimination Claim – OB/GYN – Voluntary Termination – Tort/Negligence – Defamation – Evidence

Bronitsky v. Bladen Healthcare, LLC (Lawyers Weekly No. 13-02-0957, 6 pp.) (Terrence W. Boyle, J.) 7:12-cv-00147; E.D.N.C.

Holding: Even if the plaintiff-OB/GYN could show that he did not voluntarily quit, he has failed to rebut defendants’ correct assertion that, in light of patients’ legitimate interest in bodily privacy, it is permissible for a healthcare institution to purposefully offer patients the option of seeing a female OB/GYN. Such a preference is legitimate under the bona fide occupational qualifications exception to Title VII.

Defendants’ motion for summary judgment is granted. Plaintiff is ordered to pay defendant $10,000 plus prejudgment interest.

Although various administrative documents use the word or data entry code for “terminated”, these documents speak only to plaintiff’s employment status, not to whether he quit or was fired. Plaintiff has not pointed to any evidence that supports his claim of involuntary termination.

In support of his defamation claim, plaintiff cites his own testimony that Dr. Block told him that defendant Highsmith told Dr. Block certain things about plaintiff. This is plainly inadmissible hearsay. The only other basis for plaintiff’s defamation claim is a letter from defense counsel to plaintiff’s counsel. Settlement communications between counsel are subject to an absolute privilege under N.C. law. Accordingly, the letter is inadmissible.

In response to plaintiff’s claim that defendant Bladen failed to pay him for his unused time off, Bladen has produced its paid time off policy, which expressly provides that unused paid time off will be forfeited if an employee leaves for any reason before the end of one year. Such policies are permissible. G.S. § 95-25.12.

Where plaintiff has not raised an issue of material fact as to his involuntary termination, Bladen could not have breached the parties’ employment contract. Since plaintiff failed to work for Bladen for a full year, he is required to repay his $10,000 signing bonus.