Okeke v. Administrators of the Tulane Educational Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DR. OCHEOWELLE OKEKE, CIVIL ACTION

Plaintiff

VERSUS NO. 20-450

ADMINISTRATORS OF THE SECTION: “E”

TULANE EDUCATIONAL FUND,

Defendant

ORDER AND REASONS

Before the Court is the motion of the Administrators of the Tulane Educational

Fund (“Tulane”) for summary judgment on Plaintiff’s claims of disparate treatment race

and gender discrimination1 and hostile work environment under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq.2 For the reasons that follow, the motion is

GRANTED.

PROCEDURAL BACKGROUND

On November 11, 2019, Plaintiff received a notice of right to sue from the EEOC.3

Tulane does not argue in its motion for summary judgment that Plaintiff has failed to

administratively exhaust her Title VII claims.4

1 Plaintiff argues in her opposition and sur-reply to the motion for summary judgment that she also has

brought claims for disparate impact race and sex discrimination. R. Doc. 55 at 9, 22; R. Doc. 65 at 6-7. The

Court will by separate order extend the deadline for filing dispositive motions with respect to such claims.

The Court considers in this order only Tulane’s motion to dismiss Plaintiff’s disparate treatment claims.

2 R. Doc. 51. Plaintiff opposes the motion. R. Doc. 55. Tulane has filed a reply in support of its motion. R.

Doc. 61. Plaintiff filed a sur-reply in opposition to the motion. R. Doc. 65.

3 R. Doc. 30 at ¶ 9.

4 In its answer, Tulane admits “the EEOC issued a Notice of Right to Sue on November 6, 2019” but denies

Plaintiff’s allegations with respect to administrative exhaustion “for lack of sufficient information to justify

a belief therein.” R. Doc. 11 at ¶ 9.

On February 7, 2020, Plaintiff filed a complaint in this Court bringing claims of

race and gender discrimination and hostile work environment.5 On January 6, 2021,

Tulane filed the instant motion seeking summary judgment in its favor on all of Plaintiff’s

claims.6

FACTUAL BACKGROUND

The following facts are not in dispute. Plaintiff Dr. Okeke attended Tulane’s

Combined Residency Program in Internal Medicine and Pediatrics (“Med-Peds”) from

2014-2018.7 Following her residency, Plaintiff attended her top-choice fellowship

program at the University of St. Louis School of Medicine and now has an unrestricted

license to practice medicine in Missouri.8 She is certified by the American Board of

Internal Medicine and the American Board of Pediatrics.9

The Accreditation Council for Graduate Medical Education (“ACGME”) is the

accrediting body for graduate medical education programs and establishes standards for

programs across the country.10

Plaintiff was never put on probation or formally disciplined while in her

residency.11 She was paid her full stipend each year.12 The annual stipend for residents,

including Plaintiff, ranged from $44,168 in her first year to $53,649.00 in her fourth

year.13 Plaintiff did an “away” rotation in rheumatology in Jackson, Mississippi.14 Plaintiff

5 R. Doc. 1. On November 12, 2020, Plaintiff filed a Revised Amended Complaint. R. Doc. 30. The

substantive allegations are virtually identical.

6 R. Doc. 31-1 at 7.

7 R. Doc. 51-10 at ¶ 1; R. Doc. 55-17 at ¶ 1.

8 R. Doc. 51-10 at ¶ 2; R. Doc. 55-17 at ¶ 2.

9 Id.

10 R. Doc. 51-10 at ¶ 7; R. Doc. 55-17 at ¶ 7. See R. Doc. 30 at ¶ 14 (“The Meds-Peds program is a four (4)

year program accredited by [ACGME].”)

11 R. Doc. 51-10 at ¶ 3; R. Doc. 55-17 at ¶ 3.

12 Id.

13 R. Doc. 51-10 at ¶ 4; R. Doc. 55-17 at ¶ 4.

14 R. Doc. 51-10 at ¶ 21; R. Doc. 55-17 at ¶ 21.

did not participate in Tulane’s Global Health Residency Program, which allows residents

to do away rotations overseas.15

Tulane has a published nondiscrimination policy.16

STANDARD

Summary judgment is appropriate only “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.”17 “An issue is material if its resolution could affect the outcome of the action.”18

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”19 All reasonable inferences are drawn in favor of the nonmoving party.20

There is no genuine issue of material fact if, even viewing the evidence in the light most

favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving

party, thus entitling the moving party to judgment as a matter of law.21

If the dispositive issue is one on which the moving party will bear the burden of

persuasion at trial, the moving party “must come forward with evidence which would

‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”22 If the

moving party fails to carry this burden, the motion must be denied. If the moving party

successfully carries this burden, the burden of production then shifts to the nonmoving

party to direct the Court’s attention to something in the pleadings or other evidence in the

15 R. Doc. 51-10 at ¶ 23-24; R. Doc. 55-17 at ¶ 23-24.

16 R. Doc. 51-10 at ¶ 25; R. Doc. 55-17 at ¶ 25.

17 Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

18 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

19 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

20 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

21 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

22 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.

v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).

record setting forth specific facts sufficient to establish that a genuine issue of material

fact does indeed exist.23

If the dispositive issue is one on which the nonmoving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (1)

submitting affirmative evidence that negates an essential element of the nonmovant’s

claim, or (2) demonstrating there is no evidence in the record to establish an essential

element of the nonmovant’s claim.24 When proceeding under the first option, if the

nonmoving party cannot muster sufficient evidence to dispute the movant’s contention

that there are no disputed facts, a trial would be useless, and the moving party is entitled

to summary judgment as a matter of law.25 When, however, the movant is proceeding

under the second option and is seeking summary judgment on the ground that the

nonmovant has no evidence to establish an essential element of the claim, the nonmoving

party may defeat a motion for summary judgment by “calling the Court’s attention to

supporting evidence already in the record that was overlooked or ignored by the moving

party.”26 Under either scenario, the burden then shifts back to the movant to demonstrate

the inadequacy of the evidence relied upon by the nonmovant.27 If the movant meets this

burden, “the burden of production shifts [back again] to the nonmoving party, who must

23 Celotex, 477 U.S. at 322–24.

24 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)

(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322–24, and

requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s

claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential

element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in Celotex, and requiring

the movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment);

10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE

§2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and dissent both agreed as

to how the summary-judgment burden of proof operates; they disagreed as to how the standard was applied

to the facts of the case.” (internal citations omitted)).

25 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1968); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249–50 (1986).

26 Celotex, 477 U.S. at 332–33.

27 Id.

either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce

additional evidence showing the existence of a genuine issue for trial as provided in Rule

56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided

in Rule 56(f).”28 “Summary judgment should be granted if the nonmoving party fails to

respond in one or more of these ways, or if, after the nonmoving party responds, the court

determines that the moving party has met its ultimate burden of persuading the court that

there is no genuine issue of material fact for trial.”29

“[U]nsubstantiated assertions are not competent summary judgment evidence.

The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports his or her

claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record

in search of evidence to support a party’s opposition to summary judgment.’”30

LAW AND ANALYSIS

I. Plaintiff does not bring educational malpractice claims.

Tulane argues Plaintiff’s claims are based on her opinion of the education and

training she received at Tulane and, as such, are educational malpractice claims not

cognizable under Title VII.31 This argument is more in the nature of a motion to dismiss

and, in fact, Tulane concludes this section with a request that the action be dismissed.32

In support of its argument, Tulane points to Davis v. Mann, a Fifth Circuit case in which

a resident was simultaneously terminated from his residency and his academic program

28 Celotex, 477 U.S. at 332–33, 333 n.3.

29 Id.; see also First National Bank of Arizona, 391 U.S. at 289.

30 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 915–16 & n.7 (5th Cir. 1992)).

31 R. Doc. 51-1 at 11-15.

32 Id. at 15.

based on poor academic performance.33 The court recognized “the primary purpose of a

residency program is not employment or a stipend, but the academic training and the

academic certification for successful completion of the program.”34 The resident filed a

Fourteenth Amendment due process claim but not a Title VII action. The court granted

the defendants’ motion for summary judgment on the due process claim recognizing that

students, whether dismissed for academic or disciplinary reasons, are not entitled to as

much procedural protection as employees terminated from their jobs.35 Davis does not

stand for the proposition that a resident cannot bring an employment discrimination

claim under Title VII.

A medical residency is both an employment relationship and an educational

relationship. As a result, a medical resident may have an employment discrimination

claim under Title VII, as well as other education-related actions. “For this reason, courts

have examined the context of the cause of action to determine whether the resident is to

be treated as an employee or a student in a given case.”36 In Doe v. Mercy Catholic Med.

Center, a former resident brought a claim against a hospital asserting Title IX claims, as

well as hostile work environment, retaliation, and quid pro quo harassment. 37 Although

the former resident did not file a Title VII claim against the hospital as an “employee, like

other residents have done before,” the court noted that, if she met the exhaustion

requirements of Title VII, she could have done so because Title VII has concurrent

33 Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989).

34 Id.

35 Id. at 973.

36 Knapik v. Mary Hitchcock Memorial Hosp., 90 F. Supp. 3d 292 (District of Vermont 2015).

37 Doe v. Mercy Catholic Medical Center, 850 F.3d 545, 555 (3rd Cir. 2017) (quoting O’Connor v. Davis,

126 F.3d 112, 117 (2nd Cir. 1997)).

applicability.38 “Congress provided a ‘variety of remedies,’ at times overlapping, to

‘eradicate’ private-sector employment discrimination.”39

In this case, Tulane argues Plaintiff’s claims are “about purely academic decisions

concerning training rotations” and are “properly considered educational malpractice

claims. And Title VII is not applicable.”40 This is not accurate. Plaintiff elected to pursue

the remedies available to her as an employee under Title VII. To state a claim as an

employee under Title VII, a resident must allege the defendant acted discriminatorily

concerning the resident’s status as an employee.41 Plaintiff complains about Tulane’s

discriminatory treatment of her in the employment context based on her sex and race.

Plaintiff’s residency was not terminated for poor academic or clinical performance.

Plaintiff has not complained about the quality of Tulane’s residency program. The Court

has not been asked to make a decision based on the quality of Tulane’s academic program

or other purely academic issues.

To determine whether an employee has stated an employment claim under Title

VII requires a two-step analysis: (1) determining “whether the defendant falls within Title

VII’s statutory definition of an ‘employer’” and (2) determining “whether an employment

relationship exists between the plaintiff and the defendant.”42 The analysis is described

by the Fifth Circuit as:

To determine whether an employment relationship exists within the

meaning of Title VII, “we apply a ‘hybrid economic realities/common law

control test.’” The most important component of this test is “[t]he right to

control [the] employee's conduct.” “When examining the control

component, we have focused on whether the alleged employer has the right”

38 Id citing Takele v. Mayo Clinic, 576 F.3d 834 (8th Cir. 2009).

39 Id.

40 R. Doc. 51-1 at 13.

41 Bucklen v. Resselaer Polytechnic Inst., 166 F.Supp.2d 721, 725 (N.D.N.Y. 2001).

42 Muhammad v. Dallas Cnty. Cmty. Supervision and Corr. Dep’t, 479 F.3d 377, 380 (5th Cir. 2007)

(citations omitted).

to hire, fire, supervise, and set the work schedule of the employee. “State

law is relevant insofar as it describes the plaintiff's position, including his

duties and the way he is hired, supervised and fired.” The economic realities

component of the test focuses on “whether the alleged employer paid the

employee's salary, withheld taxes, provided benefits, and set the terms and

conditions of employment.”43

Tulane qualifies as an employer under Title VII’s definition, as it is an entity

“engaged in an industry affecting commerce who has fifteen or more employees for each

working day in each of twenty or more calendar weeks in the current or preceding

calendar year.”44 With respect to whether there was an employment relationship between

the Plaintiff and Tulane, the Tulane Resident Agreement signed by the parties outlines a

stipend “subject to the appropriate federal and state income tax, social security tax, and

any other applicable deductions.”45 The agreement provides for benefits including

“support services,” “insurance,” and “professional insurance.”46 It set the terms and

conditions of the residency by stipulating a period (“07/01/2017 through 06/30/2018”)47

and outlining expectations (e.g., “Act in a professional and ethical manner.”).48 An

employment relationship existed between the Plaintiff and Tulane under this Circuit’s

Title VII jurisprudence. Plaintiff has the right to, and has elected to, pursue her

employment-related remedies under Title VII.

II. Summary judgment is granted on Plaintiff’s Title VII disparate

treatment sex and race discrimination claims.

Count one of Plaintiff’s complaint is that Tulane treated her “differently from

similarly-situated non-female employees in the terms and conditions of employment,

43 Id. at 380 (citations omitted).

44 42 U.S.C. § 2000e(b).

45 R. Doc. 55-9 at ¶ 2.

46 Id. at ¶ 4(a)-(c).

47 Id. at Preamble.

48 Id. at ¶ 4(k).

based on unlawful consideration of gender, female.”49 Count two of Plaintiff’s complaint

is that Tulane “treated Dr. Okeke differently from similarly situated non-Black employees

in the terms and conditions of employment, based on unlawful consideration of race,

Black.”50

Plaintiff bears the burden of showing both disparate treatment and discriminatory

motive.51 A plaintiff may use either direct or circumstantial evidence to prove a case of

intentional discrimination under Title VII.52 “Direct evidence is evidence which, if

believed, proves the fact [of intentional discrimination] without inference or

presumption.”53 If a plaintiff presents direct evidence, the McDonnell Douglas test does

not apply.54 More often, a plaintiff relies on circumstantial evidence, which requires the

court to apply the McDonnell Douglas burden-shifting analysis.55 Under the McDonnell

Douglas test, the plaintiff must first demonstrate a prima facie case of discrimination.56

If successful, the burden of production shifts to the defendant to show a legitimate and

nondiscriminatory basis for the adverse employment decision.57 Finally, the plaintiff must

show the defendant’s proffered reason is pretextual or unworthy of belief.58

To determine which analysis to apply, the Court first looks to whether there is

direct evidence of intentional discrimination. “[D]irect evidence is rare.”59 “In the context

of Title VII, direct evidence includes any statement or written document showing a

49 R. Doc. 30 at ¶ 57.

50 Id. at ¶ 64.

51 Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir. 1988).

52 U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983).

53 Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (1993).

54 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)

55 Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015) (applying McDonnell Douglas

analysis to determine motion for summary judgment).

56 Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994) (applying McDonnell Douglas test).

57 Id.

58 Id.

59 Clark v. Champion National Security, Incorporated, 952 F.3d 570, 579 (5th Cir. 2020).

discriminatory motive on its face.”60 “Direct evidence is evidence which, if believed,

proves the fact [of intentional discrimination] without inference or presumption.”61

The Plaintiff argues she has provided direct evidence of discrimination,62 and

points to the deposition of Dr. Dennar to show “Dr. Wiese required Dr. Dennar to sign off

on the graduation even though Plaintiff lacked graduation requirements.”63 Plaintiff

argues this behavior was “race motivated even if positive” because she and others Black

women in Med-Peds did not meet one or more requirements for graduation.64 The

portions of Dr. Dennar’s deposition testimony cited by Plaintiff do not support this

assertion.65 Instead, Dr. Dennar testified she did not recall a specific conversation with

Dr. Weise about Plaintiff’s completion of the residency program and certification.66

Plaintiff also argues Tulane faculty members assumed Plaintiff had failed some academic

standards because she was Black and that this is direct evidence of discrimination.67

Plaintiff points to Dr. Dennar’s testimony that faculty members assumed Plaintiff and

other Med-Peds residents had fallen short in their academic performance because they

were Black,68 but this was an assumption on Dr. Dennar’s part. Dr. Dennar did not testify

that any faculty member made a comment, orally or in writing, that he assumed Plaintiff

or others had fallen short academically because they were Black. Plaintiff points to an

email sent by Dr. Wiese, the Chairman of the Department of Internal Medicine, to Nick

Verne, in which Dr. Wiese states he is “considering reducing the number of Med-Peds

60 Portis v. First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 329 (5th Cir. 1994).

61 Id.

62 R. Doc. 55 at 10-11.

63 Id.

64 Id. at 11.

65 R. Doc. 55-1 at 84.

66 Id.

67 R. Doc. 55 at 11.

68 R. Doc. 55-1 at 14-15.

students to four rather than six because of a “cultural issue” in the program.69 In the

remainder of the email, Dr. Wiese went on to say that there were, he believed, “some

excessively elevated expectations (and when those excessively elevated expectations are

not met, people are unhappy.) Having a more manageable number might allow

addressing those expectations.”70 At his deposition, Dr. Wiese testified that by this term

he was referring to the medical school culture, the “shared roles, goals, expectations, and

beliefs” needed to ensure the residency program operated collaboratively.71 The Court

would be required to infer discrimination based on Dr. Wiese’s reference to cultural

issues; this is not direct evidence of intentional discrimination. Finally, Plaintiff points to

occasions on which Dr. Wiese did not know her name, did not congratulate her on her

fellowship, and criticized her for failing to be a team player.72 Although this may be rude

behavior, it is far from direct evidence of intentional discrimination.

To qualify as direct evidence of discrimination, workplace comments must be 1)

related [to the protected class of persons of which plaintiff is a member]; 2) proximate in

time to the terminations; 3) made by an individual with authority over the employment

decision at issue; and 4) related to the employment decision at issue.73 Plaintiff has not

met even the first prong of this test, as she produced no evidence of workplace comments,

written or oral, relating to women or Blacks. Plaintiff has not provided direct evidence

that any action taken by Tulane was based on her being a woman or being Black. Instead,

the evidence is open to other plausible interpretations. The Court would be forced to

resort to inferential methods of proof to find, based on the evidence provided, that

69 R. Doc. 55-7.

70 Id.

71 R. Doc. 51-5 at 7.

72 R. Doc. 55 at 6.

73 Clark v. Champion National Security Incorporated, 952 F.3d 570, 581 (5th Cir. 2020) (citation omitted).

Tulane’s actions were based on illegitimate criterion. In the absence of direct evidence

showing Defendant’s alleged discriminatory motive, Plaintiff relies on circumstantial

evidence, and as a result the McDonnell Douglas framework applies.74

To make a prima facie case under McDonnell-Douglas, “any Title VII plaintiff must

carry the initial burden of offering evidence adequate to create an inference that an

employment decision was based on a discriminatory criterion illegal under the Act.”75 The

Fifth Circuit explained the function of the prima facie case in Texas Dept. of Community

Affairs v. Burdine:

The prima facie case serves an important function in the litigation: it eliminates

the most common nondiscriminatory reasons for the plaintiff's rejection. As the

Court explained in Furnco Construction Corp. v. Waters, the prima facie case

“raises an inference of discrimination only because we presume these acts, if

otherwise unexplained, are more likely than not based on the consideration of

impermissible factors.” Establishment of the prima facie case in effect creates a

presumption that the employer unlawfully discriminated against the employee. If

the trier of fact believes the plaintiff's evidence, and if the employer is silent in the

face of the presumption, the court must enter judgment for the plaintiff because

no issue of fact remains in the case.76

To make a prima facie case for disparate treatment sex or race discrimination

under Title VII, Plaintiff must show she: “(1) is a member of a protected group; (2) was

qualified for the position at issue; (3) was discharged or suffered some adverse

employment action by the employer; and (4) was replaced by someone outside [her]

protected group or was treated less favorably than other similarly situated employees

outside the protected group.”77 Tulane admits Plaintiff is a member of a protected group

74 See Smith v. Touro Infirmary, 2015 WL 5093487 at *2 (E.D. La. Aug. 28, 2015).

75 International Broth. of Teamsters v. U.S., 431 U.S. 324, 358 (1977); Harris v. Drax Biomass

Incorporated, 813 Fed. Appx. 945 (5th Cir. 2020).

76 450 U.S. 248 at 253-54 (F181) (internal citations omitted).

77 Price v. Wheeler, 834 Fed. Appx. 849 (5th Cir. 2020); McCoy v. City of Shreveport, 492 F.3d 551, 556

(5th Cir. 2007); See also Abarca v. Metro Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (holding that

plaintiff had to show he was treated “treated differently from others similarly situated”).

and was qualified to be a Med-Peds resident.78 Tulane argues it is entitled to summary

judgment in its favor because Plaintiff has failed to make a prima facie case with respect

to the third and fourth elements of her disparate treatment sex and race discrimination

claims.79

The third element of Plaintiff’s prima facie case of disparate treatment sex and race

discrimination requires her to show that she “was discharged or suffered some adverse

employment action by” Tulane.80 Plaintiff does not allege she was discharged but she does

allege she suffered adverse employment actions when Tulane “forced a more difficult and

intensive rotation schedule on her;”81 “gave her more assignments to the Gemini service

(wherein she had no full days off);”82 “prohibited [her] from completing her required four

[] weeks of Emergency Medicine rotation” as required by the ACGME;83 “forced her to

use some of her paid vacation time while enrolled in electives at outside institution(s);”84

and forced her to forgo her “elective and/or subspecialty time in order to provide jeopardy

coverage to other residents, despite not being scheduled to do so.”85 Plaintiff also alleged

that she received fewer electives and subspecialty rotations and was not permitted to swap

rotations.

“An adverse employment action is ‘a judicially-coined term referring to an

employment decision that affects the terms and conditions of employment.’ We have

consistently held that an adverse employment action is an ‘ultimate employment decision,

78 R. Doc. 51-1 at 17.

79 Id.

80 McCoy, 492 F.3d at 556.

81 R. Doc. 30 at ¶ 40(a).

82 Id. at ¶ 40(b).

83 Id. at ¶ 40(c) and (d).

84 Id. at ¶ 40(e).

85 Id. at ¶ 40(f).

such as hiring, granting leave, discharging, promoting, or compensating.”86 “[A]n

employment action that ‘does not affect job duties, compensation, or benefits’ is not an

adverse employment action.”87 “Title VII does not, however, address every decision made

by employers that arguably might have some tangential effect upon those ultimate

decisions.”88 Instead, the Fifth Circuit has a strict interpretation of what constitutes an

adverse employment action under Title VII.89 In Price v. Wheeler, the Fifth Circuit

explained:

Suspension aside, none of the allegedly discriminatory acts constitute an ultimate

employment decision. Id. For example, Price alleges that a supervisor withheld a

particular format needed to complete a task, removed specified documents from a

database, failed to sign a document that she had prepared, and declined to meet

with her about a particular matter. But “allegations involv[ing] administrative

matters” are generally “not adverse employment actions.” Benningfield v. City of

Houston, 157 F.3d 369, 377 (5th Cir. 1998) (refusing to “micromanage” an *856

employer's administrative decisions). Neither does a loss or addition of (or change

in) job responsibilities constitute an adverse action unless the change is so drastic

as to constitute a functional demotion. See Thompson, 764 F.3d at 504 (“In certain

instances, a change in or loss of job responsibilities—similar to the transfer and

reassignment contexts—may be so significant and material that it rises to the level

of an adverse employment action.”); Southard v. Texas Bd. of Criminal Justice,

114 F.3d 539, 555 (5th Cir. 1997) (“Undesirable work assignments are not adverse

employment actions.”). Therefore, Price's allegation that she was asked at least

once to perform administrative tasks outside her job description does not further

her case. 90

The Plaintiff’s complaints concern her work assignments, which she considered

time-consuming and difficult. Plaintiff argues her intensive rotation schedule, her

assignments to the Gemini service, her assignments to jeopardy coverage, and Tulane’s

refusal to assign her to four weeks of emergency medicine rotation qualify as adverse

86 Price v. Wheeler, 834 Fed. Appx. 849 (5th Cir. 2020) (citing McCoy v. City of Shreveport, 492 F.3d 551,

559 (5th Cir. 2007)).

87 Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320

F.3d 570, 575 (5th Cir. 2003)).

88 Banks v. East Baton Rouge Parish School Board, 320 F.3d 570 (5th Cir. 2003).

89 Id.

90 834 Fed. Appx. 849, 855-56 (5th Cir. 2020).

employment actions.91 Tulane relies on Jackson v. Honeywell International

Incorporated for the proposition that less favorable work assignments do not constitute

an adverse employment action because they are not ultimate employment decisions.92 In

Jackson, an individual plaintiff argued he received less favorable work assignments such

as writing code and being assigned to work on two tasks over a four month period. The

Plaintiff in this case attempts to distinguish her case from Jackson by offering

declarations from several Black female Med-Peds residents, who she argues all had

heavier workloads, as “pattern and practice evidence under FRE 404(b)(2).”93 Just as the

plaintiff in Jackson, Plaintiff has brought individual claims for disparate treatment race

and gender discrimination. The EEOC is not the plaintiff in this case. Only the EEOC may

pursue pattern and practice cases under Section 706 of Title VII. The declarations from

Plaintiff’s Black female colleagues do not distinguish her case from Jackson. It is clear

that in the Fifth Circuit undesirable work assignments are not adverse employment

actions.94 Neither is the denial of a scheduling request.95

Plaintiff next argues the undesirable work assignments alleged are so significant

and material that Tulane’s actions rose to the level of an adverse employment action

because they made her job objectively worse. A plaintiff’s subjective preference is

irrelevant under Title VII; the proper standard is an objective one.96 “[A]n employer’s

91 R. Doc. 55 at 14.

92 601 Fed. Appx. 280 (5th Cir. 2015).

93 R. Doc. 55 at 14.

94 Tulane referenced Feingold v. New York, 366 F.3d 138 (2nd Cir. 2004), and other cases for the

proposition that a disproportionately heavy work is an adverse employment action. R. Doc. 55 at 14.

Feingold is an out-of-circuit case and, furthermore, Plaintiff did not allege that she had a disproportionately

heavy workload—only that she and other Black female residents were unable to complete their required

training and unable to moonlight. R. Doc. 55 at 18. As mentioned earlier, this is not a pattern and practice

case brought by the EEOC and allegations regarding Plaintiff’s colleagues may not be used to support her

complaint.

95 Thompson v. City of Waco, 764 F.3d 500, 503-04 (5th Cir. 2014).

96 Pegram v. Honeywell, 361 F.3d 272 (5th Cir. 2004).

action may constitute an adverse employment action if it ‘makes the job objectively

worse.’”97 In Thompson v. City of Waco, a Black police detective brought Title VII claims

against his employer after it imposed written restrictions on him for falsifying time sheets

when the city opted not to impose the same punishment on two white police detectives

who committed the same infractions.98 Unlike his white counterparts, the plaintiff was

restricted “to such an extent that he no longer occupie[d] the position of a detective; he

now function[ed] as an assistant to other detectives. Although a detective in name, [the

plaintiff] allege[s] that he [could] no longer “detect”—that is, search for evidence—

without supervision.”99 The Court found that by effectively placing him in “a new and

objectively worse position, with significantly diminished material responsibilities,”100 the

plaintiff “state[d] a plausible claim that he was subject to the equivalent of a demotion.”101

In this case, Plaintiff has not alleged that Tulane’s actions were equivalent to a

demotion but instead argues the harms she suffered were significant and material.

Plaintiff has not shown that Tulane’s actions placed her in a new and objectively worse

position, with significantly diminished responsibilities. Plaintiff maintained her title, pay,

and full responsibilities as a medical resident throughout her entire tenure at Tulane and,

in fact, graduated from the program.102 In Williams v. Du Pont, a Black plaintiff’s Title

VII claims survived summary judgment after the court found there was “a question of fact

as to whether there was a significant change in duties . . . .”103 In Williams, the plaintiff

claimed he experienced a “change in duties” after being transferred to a new work shift

97 Williams v. E.I. du Pont de Nemours and Company, 180 F. Supp.3d 451 (M.D. La. Apr. 11, 2016).

98 Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir. 2014).

99 Id. at 505.

100 Id.

101 Id. at 506.

102 R. Doc. 51-2 at 6.

103 Williams v. E.I. du Pont de Nemours and Company, 180 F. Supp.3d 451, 456-58 (M.D. La. Apr. 11, 2016).

under a supervisor who was universally disliked and considered a “bad trainer.” Unlike

the plaintiff in Williams, Plaintiff in this matter does not argue that she experienced a

change in duties or that her supervisor changed. Instead, her duties remained the same

and she reported to the same Med-Peds program director, Dr. Dennar, throughout her

residency.

Finally, Plaintiff claims she was deprived of her vacation pay and that this is an

adverse employment action because it affected her compensation.104 In her sur-reply,

Plaintiff relies on Simmons v. Methodist Hosps. of Dallas to argue that Tulane’s failure to

allow her to complete her away rotations without using her vacation benefit constituted

an adverse employment action.105 In Simmons, an internal medicine resident was

formally suspended after he had conflicts with other doctors due to incidents of

miscommunication and the refusal of hospital officials to accommodate his requests for

vacation time. But in Simmons, in addition to the hospital’s vacation time refusal, the

plaintiff raised multiple allegations against the hospital, including that it unlawfully

suspended and terminated him.106 The court found the plaintiff met his burden of alleging

he experienced an adverse employment action with his vacation time allegation in

conjunction with his ultimate termination.107 The court stated in a footnote, however,

that he “provide[d] no legal support for the theory that limiting available vacation days

may be an adverse employment action, but for purposes of this Order, the Court will

assume without deciding that it is. His eventual firing is, of course, an adverse

employment action.”108 Plaintiff has not provided any support for her argument that she

104 R. Doc. 55 at 15-16.

105 Simmons v. Methodist Hosps. of Dallas, Civ. No. 3:11-cv-17-B (N.D. Tex. Apr. 26, 2012).

106 Id. at 3-4.

107 Id. at 8.

108 Id. at 8 n.2.

suffered an adverse employment action based on her having to use her vacation time for

her away rotation.

The harms cited by Plaintiff are not adverse employment actions because they do

not involve “ultimate employment decisions such as hiring, granting leave, discharging,

promoting, or compensating.” Plaintiff has not carried her burden of offering evidence

adequate to create an inference that an employment decision was based on a

discriminatory criterion illegal under the Act. Plaintiff’s Title VII claim for disparate

treatment sex and race discrimination fails for this reason alone.

Because Plaintiff has not met the third element of her prima facie case, it is not

necessary for the Court to address the fourth element of Plaintiff’s prima facie case—that

she was treated less favorably than her white male counterparts—but the Court finds that

Plaintiff has not established this element of her prima facie case. Although a comparator

need not be identical, the employees should have the same job or responsibilities and

share the same supervisor.109 Plaintiff in her opposition to the motion argues Michael

Gillette and Plaintiff worked together as residents under the supervision of Dr. Jeffery

Wiese.110 Elsewhere, Plaintiff repeatedly states Dr. Wiese was the program director for the

internal medicine program, in which Dr. Gillette was enrolled, and Dr. Dennar was the

program director for the Med-Peds program, in which Plaintiff was enrolled.111 Plaintiff

also points to Dr. Caldwell as a comparator. She admits Dr. Gillette was in the Global

Health Program, in which residents participate in away rotations as part of that program,

and she was not. 112 Plaintiff identified Dr. Caldwell as a Chief Resident,113 which she was

109 Wallace v. Seton Family of Hospitals, 777 F.App’x 83, 87-88 (5th Cir. 2019).

110 R. Doc. 55 at 16.

111 Id. at 3-5, 8.

112 R. Doc. 55-17 at p. 7.

113 R. Doc. 51-2 (citing R. Doc. 51-2 at 24:8-19.)

not. Plaintiff has not shown that she and her purported comparators had the same job or

responsibilities or that they shared the same supervisor. Even viewed in the light most

favorable to Plaintiff, the facts do not show that these comparators were similarly situated

to Plaintiff.

The Court also notes that, in her opposition to the motion for summary judgment,

Plaintiff offers what she represents as statistical evidence114 of heavier workloads imposed

on the Med-Peds residents, all non-white women, to show that Plaintiff was treated less

favorably than white male residents.115 Plaintiff argues “statistical evidence is also of

central importance in a disparate treatment case. It may be used to show both motive and

a pattern or practice of racial discrimination.”116 Tulane counters that statistical evidence

is not appropriate in an individual disparate treatment claim and that, even if admissible,

the statistical evidence offered by Plaintiff is not reliable.117

“Statistics may be used in an attempt to establish or rebut a prima facie case of

disparate impact discrimination or class-wide intentional or pattern-or-practice

discrimination, or to assist in showing that the defendant’s articulated reasons for an

individual employment decision are pretextual. Statistics can be useful, but generally are

not determinative on the question of discriminatory intent in individual cases.”118 The

Plaintiff brought only individual sex and race discrimination disparate treatment

claims.119 In an individual disparate treatment case, “an individual plaintiff pursuing an

114 R. Doc. 55-12, R. Doc. 55-13, R. Doc. 55-8, R. Doc. 55-11.

115 R. Doc. 55 at 19.

116 Id.

117 R. Doc. 61 at 8.

118 Barbara T. Lindemann, Paul Grossman, and Geoff Weirich, Employment Discrimination Law 35.II

(Laurie E. Leader et al. eds., 6th ed. 2020).

119 See Fn. 1. The Plaintiff relies on Wilkins v. University of Houston, 654 F.2d 388, 395 (5th Cir. 1981) and

Pouncy v. Prudential Inc. Co. of America, 668 F.2d 795 (5th Cir. 1982), for the proposition that a prima

facie case may be made in an individual case based on gross statistical disparities, but the sections she cites

in both cases deal with class action disparate treatment claims.

individual claim may not rely on the type of pattern-or-practice evidence that is

acceptable in class action suits alleging similar conduct, such as general statistical

evidence.”120 Instead, a plaintiff must present prima facie evidence that she individually

was treated less favorably than a specific similarly situated employee.121 Statistical

evidence may not be used for this purpose.

III. Summary Judgment is Granted on Plaintiff’s Title VII hostile work

environment claim.

Count three of Plaintiff’s complaint is that Tulane subjected Plaintiff to

“unwelcome harassment” based on her race and gender.122 A plaintiff asserting a hostile

work environment claim under Title VII must show she: (1) belongs to a protected group;

(2) was subjected to unwelcome harassment; (3) the harassment complained of was based

on her membership in a protected group; (4) the harassment complained of affected a

term, condition, or privilege of employment; and (5) Tulane knew or should have known

of the harassment in question and failed to take prompt remedial action.123

For the purposes of this motion, Tulane admits Plaintiff belongs to protected

groups as a female resident asserting sex discrimination and as a Black resident asserting

race discrimination. Tulane argues it is entitled to summary judgment because there is no

evidence in the record—and Plaintiff will not be able to prove at trial—that Plaintiff

suffered unwelcome harassment that affected a term, condition, or privilege of her

employment, that the harassment complained of was based on her membership in a

protected group, or that Tulane failed to take prompt, remedial action. The Court will

120 Taylor v. United Parcel Service, Inc., 554 F.3d 510 (5th Cir. 2008).

121 Id.

122 R. Doc. 30 at ¶¶ 70-71.

123 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).

consider Plaintiff’s summary judgment evidence in the light most favorable for her to

determine whether her hostile work environment claim survives summary judgment.

A hostile work environment results from discrimination that does not culminate in

a tangible employment action.124,125 All circumstances related to the employment “must

be taken into consideration” to determine whether a work environment is sufficiently

hostile.126 To satisfy the sufficiently severe or pervasive test, the environment must be

pervaded with discriminatory conduct “aimed to humiliate, ridicule, or intimidate,”

thereby creating an abusive atmosphere.127 “Title VII . . . is not a ‘general civility code,’

and ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the ‘terms and conditions of

employment.’”128

Plaintiff alleges Dr. Weise “remarked that Dr. Okeke and other Black female

residents were not ‘team players’ if they ever voiced complaints about their schedules or

discriminatory treatments.’”129 She also alleges, “Dr. Wiese intimidated her and other

residents when he stormed into a group learning session and stated that more of the

residents needed to be ‘team-players,’ that the ACGME ‘requirements’ for the Emergency

Department rotations for Dr. Okeke and other Black female residents did not matter to

him, and that ‘. . . nobody else matters.”130 She alleges Dr. Wiese chastised her for not

124 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

125 The McDonnell Douglas burden-shifting analysis—which allows the Government to proffer a legitimate,

nondiscriminatory reason behind its actions—does not apply to this claim because the Government cannot

offer a legitimate reason for creating such an environment. See EEOC v. Bass Pro Outdoor World, LLC, 35

F.Supp.3d 836 (S.D. Tex. July 30, 2014) (“hostile work environment claims are not proven using McDonnell

Douglas or any other burden-shifting scheme”).

126 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting Ramsey v. Henderson,

286 F.3d 264, 268 (5th Cir. 2002)).

127 EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009).

128 Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007) (quotations omitted).

129 R. Doc. 30 at ¶ 40(g).

130 Id. at ¶ 34.

being a “team-player” when she refused to provide jeopardy coverage to other residents

when the predominantly white internal medicine residents were not required to do so.131

Dr. Wiese allegedly “refused to further discuss these issues, dared the residents to contact

ACGME, and stated that he would be okay with getting “a slap on the wrist.”132

In her deposition, Plaintiff testified that when emergency department time was

requested by some residents, Dr. Wiese “came in the room at one of [their] didactic

sessions” and told them that they “weren’t being team players.”133 Plaintiff also testified

the following encounters created a hostile environment on the basis of race and gender:

i) Dr. Wiese introduced himself at a party to a group of people including Plaintiff, leading

Plaintiff to believe Dr. Wiese did not recognize her; ii) Dr. Wiese “kind of disregarded me,

like not knowing my name;” iii) Plaintiff’s name was not initially listed on an email

congratulating those who obtained fellowships, iv) while speaking at “Monday school,”

which is attended by all residents, Plaintiff “felt that he was speaking directly to me” when

Dr. Wiese made statements that “referenced people asking for elective time and ED time,”

even though “he did not call us out by name.”134 In his deposition, Dr. Wiese testified his

“team players” comment was with respect to “everybody doing their proportion of systole

and not trying to find ways to do less of their wards ICU, CCU, night flow

responsibilities.”135

Plaintiff also points to the deposition of Dr. Dennar in which Dr. Dennar testified,

“I recall a comment that was made at the time stating that [Plaintiff] had failed her steps

131 Id. at ¶ 40(f). Dr. Marsh explained Jeopardy is the system used to cover for a resident who has an

unexpected absence. R. Doc. 51-7 at 32:19-33:1.

132 Id. at ¶ 35.

133 R. Doc. 51-2 at 128:21-129:2.

134 Id. at 189:13-14, 16-24; 237:11-18; 238:9, 12-15; 240:607.

135 R. Doc. 51-5 at 72:9-17. Dr. Wiese explained in his deposition that systole rotations are more demanding

because they involve night calls. R. Doc. 51-4 at 93:12-23.

by white faculty. And I informed them that she had not failed her steps, and very often

when a black face appeared on the screen they would talk about their academic

performance being -- and were they able to complete their boards and do well at Tulane

in the very disparaging way. Dr. Okeke was one of those people that they spoke about.”136

Dr. Dennar further testified that, after the Med-Peds residency program accepted an all-

female minority class, “one of the chairmen stated that [they] would need to -- in one of

[their] conversations afterwards, that in the future [they] would need to review the rubrics

that [she] used to -- the metrics that [she] used to actually rank [her] applicants.”137

Plaintiff also points to an email in which Dr. Wiese indicates his intent to reduce the Med-

Peds residency program and cites “some cultural issues that are arising out of the med-

peds program.”138 These statements were not made in Plaintiff’s presence, nor is it clear

these statement were directed at her. In Septimus v. Univ. of Houston, the Fifth Circuit

refused to find a hostile working environment after finding the plaintiff

“did not personally experience most (if not all) of the conduct complained of by the other

women.”139 In Hernandez v. Yellow Transp. Inc., the Fifth Circuit found that a white

plaintiff failed to “point to specific facts in the record to demonstrate that the company

knew or should have known that [he personally] was harassed” despite there being

“substantial evidence in the record that in this workplace, many workers treated other

workers [African-Americans and Hispanics] profanely, cruelly, and with hostility.”140

Discriminatory intimidation, ridicule, or insults must be sufficiently severe or

pervasive to affect the conditions of Plaintiff's employment. In the Fifth Circuit, this is a

136 R. Doc. 55-1 at 23:24-24:8.

137 Id. at 24:9-25:1.

138 R. Doc. 55-7 at 1.

139 399 F.3d 601, 612 (5th Cir. 2005).

140 670 F.3d 644, 654-55 (5th Cir. 2012).

difficult standard to meet. As an example, in DeAngelis v. El Paso Mun. Police Officers

Ass’n, a female sergeant sued her officers association for regular publication of a column

in its newsletter that ridiculed her as “sergeant dingy woman,” longed for “the good ol'

days when finding the criminal was more important to the patrolmen then keeping your

hair in place,” and published other insulting writings.141 The Fifth Circuit found the

writings, although they included derogatory references about the female sergeant, were

“the equivalent of the ‘mere utterance of an . . . epithet which engenders offensive feelings

in an employee” and therefore did not constitute a hostile work environment.142 In

Mendoza v. Bell Helicopter and Textron, Inc, a Hispanic toolmaker was subject to racist

remarks from co-workers such as “what river [did] you cross?” or “can you speak

English?” and given a flyer that said, “Hispanics should go back to Mexico.”143 The Fifth

Circuit upheld the district court’s grant of summary judgment in favor of the employer on

the toolmaker’s hostile work environment claim because the complained of conduct

“occurred sporadically over a several year period” and “no single incident was severe

enough to independently support a hostile work environment claim.”144

Plaintiff’s allegations, even if considered true or viewed in the light most favorable

to her, do not rise to the level of a hostile work environment under Fifth Circuit

jurisprudence. At most, Plaintiff was told she was not a team player, Dr. Wiese did not

recognize her at a party, Dr. Wiese disregarded her by not knowing her name, and her

name was left off an email congratulating all those who had obtained fellowships.145

141 51 F.3d 591, 594-95 (5th Cir. 1995).

142 Id. at 595 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

143 No. 10-cv-603, 2012 WL 12878157 (N.D. Tex. Oct. 3, 2012).

144 Mendoza v. Bell Helicopter and Textron, Inc., 548 Fed.Appx. 127 (5th Cir. 2013).

145 The comments made in Dr. Dennar’s, but not Plaintiff’s, presence cannot be used to satisfy this element.

Dr. Wiese’s comments are not acts of severe race-based or sex-based harassment

and neither are they pervasive. This claim fails as a matter of law.

CONCLUSION

IT IS ORDERED that the motion for summary judgment by the Administrators

of the Tulane Educational Fund is GRANTED.

New Orleans, Louisiana, this 21st day of May, 2021.

SUSIE sion

UNITED STATES DISTRICT JUDGE

25