SULLIVAN v. WAKE FOREST BAPTIST MEDICAL CENTER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NATALIE ALPHONSE SULLIVAN, )

)

Plaintiff, )

)

v. ) 1:20CV281

)

WAKE FOREST UNIVERSITY )

HEALTH SCIENCES and WAKE )

FOREST UNIVERSITY BAPTIST )

MEDICAL CENTER, )

)

Defendants.

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Plaintiff Natalie Alphonse Sullivan brings this action against Defendants Wake Forest

University Health Sciences (“WFUHS”) and Wake Forest University Baptist Medical Center

(“WFBMC”), alleging retaliation in violation of Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d et seq. (“Title VI”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII”), and 42 U.S.C. § 1981, and discrimination in violation of Title VI. (ECF

No. 22 ¶ 1, at 28–29.) Before the Court is Defendants’ Motion for Summary Judgment. (ECF

No. 63.) For the reasons stated herein, Defendants’ motion will be granted.

I. BACKGROUND

Plaintiff is an African American woman who worked for WFBMC as a medical resident

in its Radiation Oncology Residency Program (the “Residency Program”). (ECF No. 22 ¶¶

10, 23–26.) The Residency Program is a four-year program that is accredited by the

Accreditation Council for Graduate Medical Education (“ACGME”). (ECF Nos. 65 ¶ 5; 66

¶¶ 9, 15.)

Originally, after having completed medical school, Plaintiff was unsuccessful for two

consecutive years in gaining admittance into any residency program for which she applied.

(ECF No. 77-1 at 27:22–28:17, 31:17-19, 32:12–33:13.) However, after her second failed

attempt at securing admittance to a residency program, Dr. William Blackstock, then-chair of

the Radiation Oncology Department (the “Department”), (ECF No. 66 ¶ 7), invited Plaintiff

to do a one-year research fellowship and to informally participate in aspects of the

Department’s Residency Program, (ECF Nos. 77-1 at 33:11–35:22; 66 ¶ 32).

Following the completion of her fellowship, Dr. Blackstock and Dr. Michael Chan,

then-Department Residency Program Director, (ECF No. 66 ¶ 5), streamlined consideration

of Plaintiff’s application to the Residency Program, and Plaintiff was admitted into the

Residency Program, (id. ¶ 33). Some faculty members of the Department expressed unease

regarding whether Plaintiff had shown that she could successfully complete the Residency

Program, since Plaintiff’s credentials, including her grades during medical school, standardized

test scores, clinical experience, and her prior inability to match into another residency program,

were far from consistent with the attributes of a typical resident. (Id. ¶ 34.) Despite such

reservations, it was generally agreed that, with adequate support from the Department,

Plaintiff could successfully complete the Residency Program and pass her Board exams. (Id.

¶ 36.) In 2017, Dr. Chan became Vice Chair of the Department, and the Residency Program

Director role was transitioned to Dr. Doris Brown. (ECF Nos. 66 ¶ 6; 65 ¶ 4.)

The Residency Program follows national standards set forth by ACGME, (ECF Nos.

66 ¶ 9; 77-2 at 81:8–82:20), and integrates into its curriculum several competencies, pursuant

to ACGME requirements, (see ECF No. 65-1 at 15–18). During Plaintiff’s residency, those

competencies included Patient Care and Procedural Skills, Medical Knowledge, Practice-Based

Learning and Improvement, Interpersonal and Communication Skills, Professionalism, and

System-Based Practice. (Id.) Further, in line with ACGME guidance, the Residency Program

has a Clinical Competency Committee (the “CCC”) that serves to evaluate each resident’s

development of these competencies by noting their progress over time on bi-annual Milestone

Evaluations, and to make recommendations on any remedial measures that should be taken

for an underperforming resident. (ECF Nos. 65-1 at 13; 66 ¶ 11, 14.)

In the Milestones Evaluations, each resident is scored between Levels 1–5 on each of

the ACGME competencies. (ECF No. 66 ¶ 12.) Levels 1–4 are viewed to track parallel to a

resident’s year in the Residency Program,1 and Level 5 is an aspirational score reserved for

excelling residents that the CCC views as surpassing the expectations of a graduating resident.

(Id. ¶ 13.) In her first year, Plaintiff scored Level 1 on all areas, consistent with her year. (ECF

No. 65-2 at 4–6.) However, for her second, third, and fourth years of residency, each year,

Plaintiff scored below the Level that corresponded to her year in at least two competency

areas. (Id. at 10–13, 14–19, 20–22.)

After Plaintiff’s second year of residency, the Department faculty convened to

determine whether to keep Plaintiff in the Residency Program. (ECF No. 65 ¶¶ 7, 12.) Faculty

members decided that they could support Plaintiff through her deficiencies, (ECF No. 66 ¶

52), through mentorships, (see ECF Nos. 65 ¶ 21; 66 ¶¶ 46–47; 75 ¶¶ 5, 9, 10), the collection

of resources, tutoring, supplemental courses, (see ECF Nos. 65 ¶ 21; 66 ¶¶ 46–47; 67 ¶¶ 12–

13 ; 69 ¶¶ 27–29), additional time off to prepare for exams, (ECF No. 65-5 at 2), and assistance

with family responsibilities, (see ECF Nos. 77-2 at 9:16–11:1; 75 ¶ 12).

Nonetheless, throughout her years as a resident, Plaintiff also struggled with

underperformance on annual standardized assessments residents are required to take,

consistently scoring in a low percentile range in national percentile rankings that compared to

residents across the nation. (ECF No. 77-1 at 40.) In efforts to help Plaintiff improve her

scores on these standardized exams, Dr. Brown implemented two action plans, (ECF Nos.

77-2 at 141:12-21; 65-14 at 2); Plaintiff met with Dr. Chan for weekly tutoring sessions, (ECF

Nos. 77-2 at 141:12-21; 66 ¶ 46; 70 ¶ 20); faculty members and a chief resident spent extra

time with Plaintiff, (ECF Nos. 70 ¶ 22; 77-2 at 243:3-25; 67 ¶¶ 12–13); and Plaintiff repeated

courses, (ECF Nos. 65 ¶ 20; 65-14 at 2). Despite these efforts, Plaintiff showed little to no

improvement in her scores. (ECF No. 65-11 at 2–3.) Plaintiff demonstrated a similar trend

of underperformance in her required clinical rotations, according to multiple faculty members

of the Department. (ECF Nos. 75 ¶¶ 18–21; 66 ¶¶ 48, 50; 68 ¶ 11; 69 ¶ 17; 65 ¶¶ 14, 22.)

Amidst these performance struggles, Plaintiff developed concerns regarding

discriminatory treatment and retaliation from her Residency Program Director, Dr. Brown.

(ECF No. 22 ¶¶ 35, 43.) Plaintiff observed that Dr. Brown scrutinized Plaintiff’s performance

more frequently than her peers and disciplined Plaintiff more severely than her peers, among

other observations. (Id. ¶¶ 36, 71.) On May 16, 2017, in an effort to have these concerns

addressed, Plaintiff emailed Dr. Blackstock to express her concern “about Dr. Brown’s

intentions” and “unfairness in dealing” with Plaintiff, writing that she felt “targeted.” (ECF

No. 77-1 at 38.) On or around the same day, Plaintiff met with Mitch Sokolosky, Associate

Dean of Graduate Medical Education (“GME”). (ECF Nos. 74-1 at 2; 65 ¶ 24). Plaintiff

complained to Dr. Sokolosky that Dr. Brown was treating her unfairly and differently

compared to others but did not explicitly attribute such treatment to race or gender at that

time. (ECF No. 74-1 at 2.) Plaintiff “adamantly requested” that Dr. Sokolosky keep her

concerns confidential, and Dr. Sokolosky agreed. (Id.) However, after Plaintiff returned to

Dr. Sokolosky a second time about the same issue, Dr. Sokolosky decided that this time he

needed to follow up with Dr. Blackstock about Plaintiff’s concerns. (ECF Nos. 74-1 at 2; 77-

3 at 110:21–112:9.) Dr. Blackstock expressed that Plaintiff was underperforming, and that Dr.

Brown was just providing honest feedback. (ECF No. 74-1 at 2.)

In summer 2018, Dr. Sokolosky announced the formation of the Performance

Management Advisory Group (“PMAG”), a committee designed to assist residency programs

in managing underperforming residents. (ECF Nos. 77-3 at 106:3-12; 74-1 at 2.) On August

21, 2018, Plaintiff failed her Board exams. (ECF No. 66-2 at 2.) Dr. Sokolosky opined that

Plaintiff would be a good case to discuss with the PMAG. (ECF No. 74-2 at 3.)

Dr. Brown met with PMAG on October 18, 2018, to discuss Plaintiff’s performance.

(ECF No. 65-12 at 2.) During this meeting, it was recognized by PMAG that Plaintiff

continued to demonstrate poor performance in competency areas from Milestone Evaluations

and on exam scores. (Id.) As a result of the meeting, on October 19, 2018, Dr. Sokolosky

recommended that a formal remediation plan (the “First Remediation Plan”) be drafted. (ECF

No. 74-3 at 2.) After Department faculty and staff collaborated on a remediation plan, (see

generally ECF Nos. 65-6; 65-7; 65-8; 65-9), the First Remediation Plan was finalized and sent

to Plaintiff, (see ECF No. 65-10). The First Remediation Plan, effective as of December 4,

2018, described Plaintiff’s performance issues, Residency Program expectations, required

actions, and the potential consequences of Plaintiff’s failure to remediate. (See id. at 2–3.)

Plaintiff questioned the issuance of the First Remediation Plan and persisted in her

claims that she was being targeted by Dr. Brown. (ECF No. 77-3 at 115:5–117:25.) As a

result, Dr. Sokolosky convened clinical faculty members to convey directly to Plaintiff their

assessment of her performance. (ECF No. 74-1 at 5–6.) Each faculty member told Plaintiff

that she was underperforming. (Id.) Around the same time this was occurring, Plaintiff’s

husband, who was also a resident at Wake Forest, complained to David McIntosh, the

Director of Diversity and Inclusion, that Dr. Brown was treating Plaintiff unfairly. (ECF Nos.

77-4 at 122:4–123:8; 77-5 at 40:3–43:4.) Eventually, as a result of the complaints of Plaintiff

and her husband to others, Human Resources Manager Tonya Robbins was asked to conduct

an investigation, which began on October 26, 2018. (ECF Nos. 73 ¶¶ 5, 7; 80-1 at 6–26.) At

the end of her investigation in November 2018, Ms. Robbins concluded that, though Plaintiff

was treated differently than others and Ms. Robbins wanted to ensure to validate that

perceived experience by Plaintiff, she was unable to substantiate any acts of discrimination

based on race or gender. (ECF No. 73 ¶¶ 8–11.)

In January 2019, it was reported to Dr. Sokolosky that Plaintiff failed her Head &

Neck/GYN rotation, and that Plaintiff could not be signed off as safe for independent

practice. (ECF No. 74-5 at 2.) Dr. Sokolosky promptly advised Plaintiff that the Residency

Program would not extend her graduation date for her to conduct additional remediation,

(ECF No. 77-3 at 129:6–130:11), and the Department issued Plaintiff a Notice of Deficiency

on March 5, 2019, which communicated that additional remediation efforts would not be

offered to Plaintiff and that Plaintiff would not be able to state that she successfully completed

the Residency Program, (ECF No. 77-1 at 41).

After Plaintiff was issued the Notice of Deficiency, faculty from the Department

helped Plaintiff consider her options, including locating a potential transfer location. (ECF

Nos. 77-1 at 195:6-19; 65 ¶ 26.) Dr. Blackstock recommended that Plaintiff to reach out to

Dr. Charles Thomas, the Chair of the Oregon Health and Sciences University (“OHSU”)

Radiation Oncology Department. (ECF No. 77-6 at 7.) Though Dr. Thomas initially invited

Plaintiff to participate in a mock exam session and put into motion a potential visiting rotation,

(ECF No. 77-6 at 8, 10–11), Dr. Thomas grew disenchanted with Plaintiff’s contact strategy

and approach, (ECF No. 77-7 at 8, 12). Nonetheless, Plaintiff participated in OHSU’s mock

oral exam, (ECF No. 77-1 at 197:13–198:5), and Dr. Thomas remained open to Plaintiff

conducting a visiting rotation, (ECF No. 77-6 at 41:17-23). However, Dr. Sokolosky informed

Plaintiff that Wake Forest would not sign off on a visiting rotation, so the visiting rotation

never took place. (ECF No. 77-1 at 207:21–208:4.)

In non-traditional fashion, Plaintiff was permitted to appeal the Notice of Deficiency

decision she was issued. (ECF No. 77-3 at 148:23–149:13.) After review of the appeal, an

appeal committee composed of Program Directors throughout the hospital found that

Plaintiff did not meet the criteria for independent practice, but that the Residency Program

should extend Plaintiff’s residency beyond the typical four years to permit a second

remediation period. (ECF No. 77-1 at 42.) Though an extended residency remediation period

was unprecedented for the Department, another remediation plan (the “Second Remediation

Plan”) was finalized and delivered to Plaintiff. (ECF No. 65-16 at 2–4.) After the second

remediation period, which lasted approximately three months, (see id. at 2), Plaintiff graduated

on September 30, 2019, (ECF No. 22 ¶ 213).

Plaintiff initiated this action on March 30, 2020, and filed a First Amended Complaint

on June 5, 2020. (ECF Nos. 1; 11.) Plaintiff later filed a Second Amended Complaint on

March 3, 2021. (ECF No. 22.) In her Second Amended Complaint, Plaintiff brought three

claims for relief against Defendants: (1) retaliation in violation of Title VI, Title VII, and 42

U.S.C. § 1981 (First Claim for Relief); (2) race discrimination and discriminatory discipline in

violation of Title VII and 42 U.S.C. § 1981 (Second Claim for Relief); and (3) violation of Title

VI (Third Claim for Relief). (Id. at 25–29.) Based on these claims, Plaintiff seeks

compensatory damages, punitive damages, and attorney’s fees. (Id. at 29.)

On March 17, 2021, Defendants moved to dismiss all of Plaintiff’s claims and to

dismiss WFUHS as a named defendant from this case. (ECF No. 23 at 1.) The Court granted

Defendants’ Motion to Dismiss in part and denied it in part. (ECF No. 34 at 17.) The Court

granted the motion “as to Plaintiff’s claims of Race Discrimination and Discriminatory

Discipline (Count II) as to all Defendants, and Plaintiff’s claims arising under Title VII and §

1981 (Counts I & II) against [WFUHS].”2 (Id.) However, the Court denied the motion as to

Plaintiff’s remaining claims. (Id.)

Thus, the Court addresses Plaintiff’s remaining claims in this case: retaliation under

Title VI as to both Defendants and retaliation under Title VII and § 1981 as to WFMBC (First

Claim for Relief), and discrimination in violation of Title VI as to both Defendants (Third

Claim for Relief).

2 While the Second Amended Complaint references the First Claim for Relief, the Second Claim for

Relief, and the Third Claim for Relief, (see ECF No. 22 at 25–29), the Court’s Order on Defendants’

Motion to Dismiss references “Counts” rather than “Claims for Relief,” (see ECF No. 34 at 17).

However, Counts I and II in that Order correspond with the First Claim for Relief and the Second

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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.” Fed.

R. Civ. P. 56(a). “A dispute is genuine if a reasonable jury could return a verdict for the

nonmoving party.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015)

(internal citations and quotations omitted). “[I]n deciding a motion for summary judgment, a

district court is required to view the evidence in the light most favorable to the nonmovant”

and to “draw all reasonable inferences in his favor.” Harris v. Pittman, 927 F.3d 266, 272 (4th

Cir. 2019) (citing Jacobs, 780 F.3d at 568). A court “cannot weigh the evidence or make

credibility determinations,” Jacobs, 780 F.3d at 569 (citations omitted), and thus must “usually”

adopt “the [nonmovant’s] version of the facts,” even if it seems unlikely that the nonmoving

party would prevail at trial, Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011)

(quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).

Where the nonmovant will bear the burden of proof at trial, the party seeking summary

judgment bears the initial burden of “pointing out to the district court . . . that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). If the moving party carries this burden, then the burden shifts to the

nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In so doing, “the

nonmoving party must rely on more than conclusory allegations, mere speculation, the

building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash

v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Instead, the nonmoving party must support

its assertions by “citing to particular parts of . . . the record” or “showing that the materials

cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1); see also

Celotex, 477 U.S. at 324.

III. DISCUSSION

Defendants contend that Plaintiff has not presented evidence necessary to meet her

burden to establish that Defendants are recipients of federal funding that are statutorily

covered by Title VI. (ECF No. 77 at 37.) Defendants also argue that Plaintiff has not forecast

sufficient evidence to establish either her claim for retaliation under Title VI, Title VII, and §

1981, or her claim for Title VI discrimination. (Id. at 31, 37.) Plaintiff retorts that Defendants

are federal funding recipients covered by Title VI, (ECF No. 80 at 27–28), and that Plaintiff

can establish that Defendants engaged in retaliation against Plaintiff in violation of Title VI,

Title VII, and § 1981 and discrimination in violation of Title VI, (id. at 18–19, 32). Plaintiff

also contends that her claims support her entitlement to compensatory, emotional, and

punitive damages. (Id. at 32–34.)

A. Title VI Federal Funding Requirement

Under Title VI, “[n]o person in the United States shall, on the ground of race, color,

or national origin, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal financial assistance.” 42

U.S.C. § 2000d. To determine the applicability of Title VI, the Court must first determine

whether Defendants are statutorily covered recipients of federal funding. In order for a Title

VI claim to be sustained, a plaintiff must “show . . . evidence that a defendant receives federal

funds for employment purposes.” Luallen v. Guilford Health Care Ctr., No. 1:02CV00738, 2003

WL 23094916, at *11 (M.D.N.C. Dec. 18, 2003), aff’d, 115 F. App’x 167 (4th Cir. 2004)

(unpublished); see also Keeshan v. Eau Claire Coop. Health Ctrs., Inc., No. 3:05-3601-MBS, 2007

In their Answer to Plaintiff’s Second Amended Complaint, Defendants admit

Plaintiff’s allegation that WFBMC “w[as] receiving federal financial assistance . . . for

employment costs relating to” the Residency Program but deny the same as to WFUHS. (ECF

Nos. 22 ¶ 244; 36 ¶ 244.) Since Defendants concede that WFBMC receives federal funding

for employment costs relating to the Residency Program, the Court finds that WFBMC

receives such federal funding and is therefore a Title VI employer. However, Plaintiff has

failed to adduce any evidence to establish that WFUHS receives federal funding for the

primary purpose of employment and, in turn, to demonstrate that Defendant WFUHS is a

Title VI employer. Due to Plaintiff’s failure to establish this, the Court finds that Defendants

are entitled to summary judgment in their favor as to Plaintiff’s Title VI claims against

WFUHS.

B. Retaliation Claim Against WFBMC under Title VI, Title VII, and 42

U.S.C. § 1981

Retaliation against a plaintiff for complaining about prior discrimination is prohibited

under Title VI, Title VII, and § 1981. 42 U.S.C. § 2000e-3(a); see Peters v. Jenney, 327 F.3d 307,

318–19 (4th Cir. 2003) (holding that prohibitions on intentional discrimination under § 1981

“extend to provide a cause of action to those who can demonstrate that they have been

purposefully injured due to their opposition to intentional racial discrimination” and that Title

VI’s implicit prohibition on retaliation is “enforceable via an implied private right of action”).

Further, retaliation claims, whether brought pursuant to Title VI, Title VII, or § 1981, may be

established “either through direct and indirect evidence of retaliatory animus, or through the

burden-shifting framework of McDonnell Douglas.” Foster v. Univ. of Md.-E. Shore, 787 F.3d 243,

249 (4th Cir. 2015) (citing McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973)); see Boyer-Liberto

1981 retaliation under the same framework); Peters, 327 F.3d at 320 (holding that a Title VI

retaliation claim is analyzed under the Title VII framework).

The McDonnell Douglas framework is a “three-step burden-shifting framework.”Foster,

787 F.3d at 250. Under McDonnell Douglas, a prima facie claim for retaliation is established by

showing (1) that the plaintiff engaged in a protected activity, (2) that the plaintiff suffered an

adverse action, and (3) that a causal relationship existed between the protected activity and the

adverse action. Id. Once a prima facie case is established, the burden shifts to the employer

to show that adverse action was taken for “a legitimate non-retaliatory reason.” Roberts v. Glenn

Indus. Grp., Inc., 998 F.3d 111, 122 (4th Cir. 2021). Should the employer make this showing,

the burden then shifts back to the plaintiff to rebut the employer’s evidence by demonstrating

that the employer’s purported non-retaliatory reasons were pretext for discrimination. Id.

Here, Plaintiff asserts that two acts constitute unlawful retaliation: (1) Dr. Brown’s

decision to place her on the First Remediation Plan and (2) purported statements made by Dr.

Blackstock on a phone call with Dr. Thomas “intending to harm her professional prospects.”

(ECF No. 80 at 20, 24.)3 The Court addresses each of these acts that Plaintiff argues to be

retaliatory in turn.

3 The Second Amended Complaint alleges two other adverse actions contributing to unlawful

retaliation, to include Defendants’ alleged attempt to remove Plaintiff from the Residency Program

halfway through the period of the First Remediation Plan and Dr. Blackstock’s restriction of Plaintiff’s

interactions with faculty during the effective period of the Second Remediation Plan. (ECF No. 22

¶¶ 225–26.) For clarity’s sake, the Court notes that what Plaintiff alleges to be Defendants’ attempt

to remove Plaintiff from the Residency Program halfway through the period of the First Remediation

Plan is the Notice of Deficiency that was issued on March 5, 2019. (ECF No. 22 ¶¶ 150–52.)

Defendants address both alleged adverse actions in their Brief in Support of their Motion for Summary

Judgment. (ECF No. 77 at 31, 36–37). Plaintiff’s Brief in Opposition to Defendants’ Motion for

Summary Judgment does address the Notice of Deficiency, but solely in the context of arguing that

her appeal to the Notice of Deficiency served as a protected activity that motivated a wholly different

adverse action. (See ECF No. 80 at 24–26 (arguing that Plaintiff’s appeal of the Notice of Deficiency

1. Dr. Brown’s Decision to Place Plaintiff on the First Remediation Plan

Defendants do not contest that Plaintiff’s complaints to HR regarding Dr. Brown’s

actions constitutes protected activity. (See ECF No. 77 at 31–35); Volochayev v. Sebelius, 513

Fed. App’x 348, 354 (4th Cir. 2013) (unpublished) (citing Armstrong v. Index Journal Co., 647

F.2d 441, 448 (4th Cir. 1981)) (“[I]nformal complaints about discriminatory treatment relating

to a protected status constitute protected activity under Title VII”). Nor do they contest that

placing Plaintiff on a remediation plan could qualify as an adverse action. (See ECF No. 77 at

31–35.) Rather, Defendants contend that Plaintiff’s claim of retaliation fails on the third

element of a prima facie case—causation. (Id. at 34–35.)

“Fourth Circuit precedent addressing the causation prong of a prima facie case of

retaliation requires that a plaintiff demonstrate that the decisionmaker imposing the adverse

action have actual knowledge of the protected activity,” at the time the alleged adverse action

is taken. Roberts, 998 F.3d at 125. Thus, in this case, Plaintiff must demonstrate that Dr.

Brown had actual knowledge that Plaintiff complained of race discrimination at the time the

decision was made to place her on a Remediation Plan. The Court finds that the evidence in

the record does not support such a conclusion.

The drafting of the First Remediation Plan was set in motion by Dr. Sokolosky’s

recommendation, which occurred days before the HR investigation of Plaintiff’s

response regarding either of the two alleged instances as adverse actions. (See generally ECF No. 80.)

As a result of her failure to respond with argument on either of these instances in that context, Plaintiff

effectively concedes that neither of these originally-alleged adverse actions constitute unlawful

retaliation, and the Court concludes the same. Brand v. N.C. Dep’t Crime Control & Pub. Safety, 352 F.

Supp. 2d 606, 618 (M.D.N.C. 2004) (holding that a plaintiff who did not address, in its response brief,

a defendant’s motion for summary judgment concerning the plaintiff’s hostile work environment

claim caused the plaintiff to effectively concede that he did not state a hostile work environment

discriminatory concerns began. (ECF Nos. 74-3 at 2; 73 ¶¶ 5, 7; 80-1 at 6–26.) The record

does not include any evidence that Dr. Brown had any knowledge of Plaintiff’s concerns about

racial discrimination prior to the start of the HR investigation. See Jefferies v. UNC Reg’l

Physicians Pediatrics, 392 F. Supp. 3d 620, 629 (M.D.N.C. 2019) (finding establishing causal

connection requires a plaintiff to show both that the protected activity preceded materially

adverse action and that the employer knew of the protected activity). Dr. Brown has testified

that, until Plaintiff’s deposition in this litigation, she did not know that Plaintiff complained of

race discrimination. (ECF No. 81-5 at 43:8–45:19.) According to Dr. Brown’s testimony,

though she was aware of general complaints made by Plaintiff against her, she had no

knowledge that the complaints regarded race discrimination specifically. (Id. at 44:23–45:19.)

Also, Dr. Sokolosky testified that, until he learned that the HR investigation that took place

was based on race concerns, he was not aware of Plaintiff’s concerns of race discrimination,

also stating that Plaintiff’s concerns were never brought forth by Plaintiff as racial concerns

until the investigation. (ECF No. 77-3 at 83:6–85:1.) Dr. Winkfield similarly testified that,

during her mentorship of Plaintiff, Plaintiff had only ever expressed to her that Dr. Brown

“was picking on her by unfairly critiquing her performance” and that Plaintiff “did not describe

the behavior as discriminatory based on her race or gender.” (ECF No. 75 ¶ 33.)

Admittedly, in a meeting between Ms. Robbins and Plaintiff regarding the findings

from her October 26, 2018, HR investigation, Ms. Robbins told Plaintiff that she believed that

Dr. Brown was aware of Plaintiff’s concerns “from the beginning.” (ECF No. 79, Recording

10 at 14:55–15:10.) However, there is no evidence demonstrating precisely what Dr. Brown

knew about Plaintiff’s concerns, and more specifically, no evidence demonstrating that Dr.

Brown knew that Plaintiff’s concerns regarded racial discrimination.

Further, even if it could be shown that Dr. Brown did have knowledge of Plaintiff’s

complaint to Dr. Sokolosky in January 2018, the causal connection that would be established

by Dr. Brown’s purported knowledge would be invalidated due to the period of time between

the complaint and the issuance of the First Remediation Plan. The Fourth Circuit has held

that “a three-month period between the protected activity and the adverse action” is “too

long” to “support a finding that there is a causal link.” Roberts, 998 F.3d at 123, 127. Since

the issuance of the First Remediation Plan occurred in December 2018, there would be

approximately 11 months between the alleged protected activity and the adverse action, which

is far too long for a causal link to exist under current Fourth Circuit precedent.4

Because there is no evidence in the record to demonstrate that Dr. Brown had

knowledge that Plaintiff’s complaints about Dr. Brown’s actions concerned racial

discrimination before the initiation of the First Remediation Plan, Plaintiff fails to satisfy the

“causal connection” prong of a prima facie case for retaliation under McDonnell Douglas.

Further, this Court concludes that the evidence Plaintiff attempts to offer as direct evidence

of retaliation amounts only to conjecture. (See ECF No. 80 at 22–23.) Therefore, Plaintiff

fails to establish that Dr. Brown’s decision to place Plaintiff on the First Remediation Plan

was retaliation under Title VI, Title VII, and § 1981.

4 “In cases where ‘temporal proximity between protected activity and allegedly retaliatory conduct is

missing, courts may look to the intervening period for other evidence of retaliatory animus,’”

specifically “evidence of recurring retaliatory animus during the intervening period . . . .” Lettieri v.

Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,

281 (3d Cir. 2000)). Plaintiff points to one instance to support her assertion of recurring retaliatory

conduct during the 11-month period. (See ECF No. 77-1 at 111:5-17 (Plaintiff’s testimony that, in

February 2018, Dr. Brown accused her of not responding to a page to perform a verification

simulation, when, after it was investigated, it was discovered that Plaintiff never received a page).)

Even if this was confirmed to be a retaliatory act, this one act is not sufficient to be considered

2. Purported Statements Made by Dr. Blackstock

Plaintiff next argues that purported statements made by Dr. Blackstock on a phone call

with Dr. Thomas “intending to harm her professional prospects” constitutes her second claim

of retaliation. (ECF No. 80 at 24.) More specifically, Plaintiff asserts that her April 25, 2019,

appeal of the Notice of Deficiency was the protected activity that generated the phone call

between Dr. Blackstock and Dr. Thomas in which the purported negative statements were

made. (Id. at 25–26.) As Defendant’s argue, Plaintiff’s appeal of the Notice of Deficiency,

with no accompanying complaint of race discrimination on the appeal, is not a protected

activity. See Thompson v. City of Charlotte, 2018 WL 5085766, at *2 (W.D.N.C. Oct. 18, 2018),

aff’d, 827 F. App’x 277. (4th Cir. 2020) (“As a general rule, general complaints of unfair

treatment are not protected activity.” (citations and internal quotation marks omitted)).

Moreover, the additional evidence Plaintiff appears to rely on is the testimony of Dr. Jerry

Jaboin, (see ECF No. 80 at 15–16), who was not a party to the call between Dr. Blackstock and

Dr. Thomas, (ECF No. 81-4 at 126:22-24). The Court is unable to credit this testimony for

several reasons. First, Dr. Jaboin has no personal knowledge of the call between Dr.

Blackstock and Dr. Thomas, but states that Dr. Thomas discussed the call with him. (ECF

No. 81-4 at 58:24–60:14, 125:8-16.) Second, none of the statements that Plaintiff attributes

to Dr. Jaboin will cure the fact that Plaintiff has failed to establish the first prong of her prima-

facie case under McDonnell Douglas. Nor can Dr. Jaboin’s statements be used as direct evidence

of racial animus. Many of the statements Plaintiff attributes to Dr. Jaboin are of his

“impression” of Dr. Blackstock’s thoughts and concerns on the call, (ECF No. 80 at 15),

though he never spoke with Dr. Blackstock. Further, Dr. Thomas, who did participate in the

phone call, has testified that he did not recall Dr. Blackstock describing Plaintiff as difficult or

discussing the fact that Plaintiff complained to Human Resources. (ECF No. 77-6 at 40:15-

20.) In addition, Dr. Jaboin himself admitted in his testimony that he could not dispute Dr.

Thomas’ sworn account of Dr. Thomas’ call with Dr. Blackstock and could not confirm the

negative statements that Plaintiff claims were made on the call. (ECF No. 81-4 at 126:2–

127:23.)

Finally, and perhaps of greatest import, most, if not all, of Dr. Jaboin’s testimony about

Dr. Blackstock’s statements is nothing more than inadmissible hearsay under Federal Rules of

Evidence 801(c) and 802, and “[h]earsay evidence, which is inadmissible at trial, cannot be

considered on a motion for summary judgment.” Lyons v. City of Alexandria, 35 F.4th 285, 290

n.4 (4th Cir. 2022) (internal quotation marks omitted) (quoting Md. Highways Contractors Ass’n

v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)). Thus, the Court may not consider Dr.

Jaboin’s testimony about Dr. Blackstock’s statements on the call. As a result, Plaintiff is unable

to satisfy the first prong of a prima facie case for retaliation under McDonnell Douglas, nor can

these statements be used as direct evidence of racial or retaliatory animus.

In addition, Plaintiff argues that certain recorded statements of Dr. Blackstock serve as

direct evidence of retaliation due to Plaintiff’s appeal of the Notice of Deficiency. (ECF No.

80 at 26–27.) Plaintiff asserts that Dr. Blackstock told Plaintiff that “he was angry with her”

for taking her complaints to Dr. Sokolosky and that he was not willing to sign off on her

potential transfer to OHSU anymore. (Id.) However, the record contradicts this assertion.

Plaintiff’s own testimony is that Dr. Blackstock’s recorded statements were not made in

reference to OHSU. (ECF No. 77-1 at 208:20–209:25.) Plaintiff testified that Dr. Blackstock’s

statements were instead describing the fact that, now that others were involved in Plaintiff’s

residency, Dr. Blackstock no longer had the same control in his Department Chair position to

guarantee any particular outcome for Plaintiff. (Id.) As a result, with the evidence present in

the record, Plaintiff has failed to establish that Dr. Blackstock retaliated against her for

appealing the Notice of Deficiency under McDonnell Douglas as well as through direct evidence

of retaliatory animus on the part of Dr. Blackstock.

Therefore, Defendants are entitled to summary judgment as to Plaintiff’s claim for

retaliation under Title VI, Title VII, and § 1981 against WFBMC.

C. Title VI Discrimination Claim against WFBMC

Regarding Plaintiff’s Title VI discrimination claim, Defendants argue that Plaintiff

appears to have raised a claim of racial harassment under Title VI in one of her prior briefs.

(ECF No. 77 at 40; see ECF No. 58 at 1–2.) Defendants argue in their Motion for Summary

Judgment, however, that Plaintiff has not raised such a claim in the Second Amended

Complaint. (ECF No. 77 at 40.) In response, Plaintiff provides no argument in her Brief in

Opposition to Defendants’ Motion for Summary Judgment regarding whether her Second

Amended Complaint alleges harassment under Title VI, but instead highlights evidence that

Plaintiff argues is sufficient to establish racial harassment in this case. (ECF No. 80 at 28–32.)

Plaintiff failed to include any mention of racial harassment in the Second Amended

Complaint—in fact, the word “harassment” never appears in Plaintiff’s Second Amended

Complaint. (See generally ECF No. 22); see Middlebrooks v. Univ. of Maryland, 166 F.3d 1029, 1999

WL 7860, at *3 (4th Cir. Jan. 11, 1999) (unpublished) (table) (finding inadequate notice of a

hostile environment claim where there was no mention of a hostile learning environment in

amended complaints and “each claim alleges, in one form or another, ‘disparate’ treatment”).

In addition, to reiterate, Plaintiff provides no argument on this motion regarding whether

racial harassment was alleged in her Second Amended Complaint. The Court agrees with

Defendants that they “were afforded inadequate notice of” a claim of racial harassment by

Plaintiff. Id.

To the extent that Plaintiff attempts to assert such a harassment claim in her briefing,

the law in the Fourth Circuit is clear that a party cannot assert a new claim in this manner. S.

Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184

(4th Cir. 2013) (“It is well-established that parties cannot amend their complaints through

briefing . . . .”). Because Plaintiff has failed to include any mention of racial harassment—and

even failed to include the word “harassment” in her Second Amended Complaint—the Court

concludes that Plaintiff has not alleged a harassment claim, and that the Court will not consider

or further entertain such claim. See Stewart v. Johnson, 125 F. Supp. 3d 554, 561 (M.D.N.C.

2015).

With respect to Plaintiff’s disparate treatment claim, the Fourth Circuit deploys “the

familiar McDonnell Douglas test for claims of discrimination under Title VI.” Maisha v. Univ. of

N. Carolina, 641 F. App’x 246, 250 (4th Cir. 2016) (unpublished). Under this test, a plaintiff

must first establish a prima facie case of discrimination by showing that the plaintiff is a

“member[ ]of a protected class,” that she “suffered an adverse action,” and that “similarly

situated individuals did not suffer the same adverse action[ ] in the same or similar situations.”

Escobar v. Montgomery Cnty. Bd. of Educ., No. CIV. A. AW-99-1964, 2001 WL 98600, at *6 (D.

Md. Feb. 1, 2001); see also Ratliff v. Wake Forest Baptist Med. Ctr., No. 1:13CV991, 2014 WL

197809, at *2 (M.D.N.C. Jan. 14, 2014). If the plaintiff can demonstrate a prima facie case,

and the defendant offers a legitimate, non-discriminatory reason for the adverse action, the

plaintiff must then show that “the proffered reason” is pretext. Middlebrooks, 166 F.3d 1029,

1999 WL 7860, at *4.

Plaintiff’s Title VI discrimination claim suffers from the same problem that ails her

retaliation claim: Plaintiff cannot surmount the first hurdle of the McDonnell Douglas analysis

that requires the establishment of a prima facie case. More specifically, here, there is no

evidence in the record supporting the prong regarding “similarly situated individuals.” In

order to establish that an employee is similarly situated to a plaintiff, the plaintiff must establish

that an employee “engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer’s treatment of them for

it.” Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir. 2010) (unpublished); see also Holtz v.

Jefferson Smurfit Corp., 408 F. Supp. 2d 193, 207 (M.D.N.C. 2006), aff’d, 242 F. App’x 75 (4th

Cir. 2007) (holding no prima facie case of discrimination was established where the purported

comparators “did not have a series of performance problems” similar to the plaintiff’s). In

her testimony, Plaintiff failed to identify a resident who attracted the same level of concern

from faculty members regarding their performance. (ECF No. 77-1 at 220:23–221:1.)

Moreover, the evidence in the record that Plaintiff identifies as direct evidence of racial

animus demonstrates alleged discrimination that is either not specific to Plaintiff or admitted

by Plaintiff to be motivated by Dr. Brown’s legitimate, non-discriminatory reasons. For

instance, Plaintiff testifies that she never heard Dr. Brown make any comments about

Plaintiff’s race. (Id. at 65:7-9.) Also, though Plaintiff testifies that Dr. Brown heavily criticized

another Black resident and an Egyptian resident, Plaintiff admitted that Dr. Brown’s criticisms

were all honest comments about those residents’ performance. (Id. at 65:10–69:13.) Plaintiff

also admits that she has no evidence to dispute what Dr. Brown reported other faculty

members were telling Dr. Brown about Plaintiff’s performance. (Id. at 61:1-9.) Further, the

record shows that each decision about Plaintiff’s residency was a collective decision that

involved the input of faculty members, recommendations of the CCC, and the meeting and

discussion of an outside committee like PMAG. (See, e.g., ECF Nos. 65 ¶¶ 7, 12; 66 ¶ 52; 65-

6; 65-7; 65-8; 65-9; 65-2; 65-12 at 2–3.) Thus, the record does not support the notion that any

of the decisions regarding Plaintiff’s residency were motivated by discriminatory animus.

IV. CONCLUSION

Plaintiff has failed to provide sufficient evidence from which a reasonable juror could

find in favor of Plaintiff and against Defendants on any of the remaining claims of retaliation

or discrimination and, therefore, Defendants’ Motion for Summary Judgment will be granted.

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment,

(ECF No. 63), is GRANTED.

This, the 27th day of March 2024.

/s/ Loretta C. Biggs

United States District Judge