A physician has failed to show his disability was the reason a state contractor moved to terminate his employment, a federal judge ruled, finding instead there were legitimate concerns from government employees about the doctor’s performance.

Stephen Gorshow sued eQHealth Solutions LLC, his former employer, alleging it violated the Americans with Disabilities Act by taking action against him on the basis of his disability. EQHealth had a contract with the Colorado Department of Health Care Policy and Financing, which administers the state’s Medicaid program, and Gorshow’s role as the senior medical director was to review claims based on medical necessity and to testify at appeals hearings.

Gorshow alleged employees at eQHealth and HCPF “secretly conspired” to portray his performance in a negative light to mask their true motives in getting rid of him. But on Aug. 2, U.S. District Court Judge William J. Martínez sided with the defendants, believing eQHealth had presented sufficient, nondiscriminatory reasons for its treatment of Gorshow.

“EQHS gave Plaintiff an opportunity to explain his performance issues,” Martínez wrote in his order. “EQHS encouraged him to consult his physician to see if accommodations were needed. But Plaintiff never suggested the need for an accommodation to EQHS, and he never communicated with his doctor regarding a possible accommodation for his hearing.”

Gorshow received a diagnosis in 2002 for a chronic inner ear disorder, which culminated in a cochlear implant in 2014. The procedure permitted him to continue working despite a hearing impairment and related issues. In March 2017, he began working for eQHealth.

According to Gorshow’s lawsuit, the first event triggering eQHealth’s move to terminate him occurred in December 2018, when he allegedly refused to testify at an appeal hearing that a continuous glucose monitoring device was not medically necessary for an adult claimant, contrary to the wishes of HCPF.

Then in July 2019, Katherine Denney, a team leader with HCPF, contacted eQHealth state director Heather Wicker with concerns about Gorshow. The concerns reached Ron Ritchey, the chief medical officer for eQHealth, who heard that Gorshow’s performance had reportedly deteriorated within recent months.

“They specifically observed a lack of organization in his functioning within the appeals process and confusion as to which case was being discussed in a conversation or on a conference call,” Ritchey wrote in his his notes from the time.

Denney and Wicker conveyed several lapses, including Gorshow’s “cross charting,” or putting data from one patient into the chart of a different patient. Other issues included Gorshow’s alleged forgetfulness, confusing a 67-year-old patient with a 3-year-old, and responding to a question on a call by saying, “I’m sorry, I was daydreaming I guess.”

“Ms. Denny also indicated a concern that she feels she can no longer rely upon the expertise of Dr. Gorshow, whereas in the past she felt confident in his abilities,” Ritchey described in his notes.

In September 2019, Ritchey met with Gorshow at eQHealth’s Denver office. Gorshow reportedly provided explanations for some of the identified lapses, including stress and workload. Gorshow brought up his hearing impairment and Ritchey expressed a willingness to accommodate the disability. He invited Gorshow to undergo an assessment to request an accommodation under the ADA, although there was no indication Gorshow did so.

Later that month, Ritchey concluded Gorshow’s performance constituted a “threat” to the HCPF contract, given the department’s documented concerns. Ritchey spoke with Denney at HCPF and she affirmed Ritchey’s hearing loss “does not explain his underperformance.”

The company presented two options to Gorshow: He could accept a demotion from senior medical director to medical director, with a 20% cut to his pay and a new salary of $227,000. In that role, he would no longer give testimony in hearings or meet with HCPF. In the alternative, Gorshow could resign and accept three months’ salary.

Although Gorshow asked eQHealth to consider placing him on probation, the company declined. On Oct. 14, 2019, Gorshow left the company on his own.

Gorshow, after filing his lawsuit, described being in “complete shock and disbelief” at his September meeting with Ritchey, having heard nothing about his alleged performance problems before then. His lawsuit argued Gorshow’s termination stemmed from both his disability and from his December 2018 refusal to provide allegedly false testimony about the medical necessity of a device.

Responding to eQHealth’s stated concerns about his performance, Gorshow claimed he “was never given a single thread of supporting evidence that could be examined by him in order to know what the true facts were to ensure that the investigation results were true, complete and honest.” At the same time, he admitted to saying during a meeting that he was “daydreaming,” but blamed it on his cochlear implant not working.

EQHealth argued to the court that the company and HCPF made efforts to repeat, clarify or explain things to Gorshow out of respect for his hearing difficulties. Further, eQHealth leaders reportedly did not know about Gorshow’s prior concern with providing testimony at the time they took action against him.

“No facts show false information was levied against Plaintiff; only legitimate performance concerns were raised,” wrote attorneys for eQHealth. “Raising legitimate performance criticism against an employee does not constitute an adverse employment action.”

Gorshow’s lawsuit originally included employees of HCPF among the defendants, but Martínez dismissed them from the litigation in October after determining they were entitled to governmental immunity. In evaluating Gorshow’s ADA allegations against eQHealth, the judge was satisfied that the multiple performance-related concerns the company raised about Gorshow belied any claim of disability discrimination.

“Here, EQHS received complaints from an important client about the performance of Plaintiff in an essential role. EQHS thereafter investigated those complaints and found them to be substantiated,” Martínez concluded. As is the custom in federal courts, he declined to take action on Gorshow’s remaining claims under Colorado law.

The attorney for Gorshow did not respond to a request for comment.

The case is Gorshow v. eQHealth Solutions et al.