Harvey Hoffman v. Baylor Health Care System

Case: 14-10258 Document: 00512890389 Page: 1 Date Filed: 01/06/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10258 United States Court of Appeals

Summary Calendar Fifth Circuit

FILED

January 6, 2015

HARVEY HOFFMAN, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

BAYLOR HEALTH CARE SYSTEM, doing business as Baylor Medical

Center at Waxahachie,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-cv-3781

Before JONES, BENAVIDES, and GRAVES, Circuit Judges.

PER CURIAM:*

Appellant Harvey Hoffman (“Hoffman”) appeals the district court’s order

granting summary judgment on his disability- and age-discrimination claims

in favor of Appellee Baylor Health Care System, d/b/a Baylor Medical Center

at Waxahachie (“Baylor”). For the reasons below, we AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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I. BACKGROUND

Baylor employed Hoffman as a Magnetic Resonance Imaging (“MRI”)

Technician from September of 2001 until his termination in November of 2011.

At the time of his termination and of the events described below, Hoffman was

70 years of age, with a slight tremor in his right hand. The facts are largely

undisputed, and differ only as to the protocols governing Baylor’s MRI

procedures.

According to Baylor’s written job description of the position, an MRI

Technician’s duties included: “Review[ing] patient’s chart or orders to verify

the examination to be performed. Evaluat[ing] patient’s history and symptoms

for the procedures [sic] clinical criteria.” As part of its Magnetic Resonance

Department Safety Policies and Procedures, Baylor instituted a “Department

Specific Policy” for MRI screening of patients, designed to detect the presence

of “contraindicators” in patients which preclude performance of the MRI

procedure. In order to “determine any questionable issue related to the [two-

page Baylor] MR patient screening form” (“MRI Screening Form”), the policy

requires the MRI Technician to “discuss with the patient or family member the

possibility of any foreign electronic, mechanical or metallic objects within the

patient.” Additionally, the policy provides that, if a patient is

“incoherent or unable to communicate with the technologist, a

responsible person (i.e., family member or care giver) familiar with

the patient’s medical history will need to provide the necessary

clinical information to the satisfaction of the technologist as to

prevent an unsafe interaction of foreign objects with the magnetic

field and/or RF signal.”

The policy prohibits MRI procedures when a patient has not been cleared of

unsafe objects.

For his part, Hoffman instead asserts that MRI procedures were

alternatively governed by “established practice” involving a series of multi-

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party protocols, stating in his declaration that he “noted a standardized and

routine procedure” for performing an MRI procedure by which the MRI

Technician and nursing staff would obtain, share, and review relevant

information through discussion and documentation. Hoffman provides no

other evidence of this procedure besides his declaration and, although we have

previously held that “self-serving allegations” in an affidavit, unsupported by

documentation or testimony of a third party, “are not the type of significant

probative evidence required to defeat summary judgment,” 1 we need not reach

that consideration here. This is because, even assuming the truth of Hoffman’s

assertions regarding procedures, they do not create a fact issue since Baylor

was not obligated, for disciplinary purposes, to adopt Hoffman’s subjective,

post-hoc understanding of the process, especially as it conflicted with Baylor’s

own safety protocols and job description, and Baylor’s failure to do so, standing

alone, is not probative of discriminatory intent.

On October 28, 2011, an MRI procedure precipitated the adverse

employment action upon which Hoffman bases his claims. On that date, an

emergency-room patient (“Patient X”) was admitted without the ability to

communicate with hospital staff, and a physician ordered Patient X to undergo

an MRI. Staff nurse Danny Stokes (“Stokes”) filled out the first page of the

MRI Screening Form and, based on information in the patient’s chart, noted

that she had a pacemaker. Due to a shift change, Stokes passed along the

incomplete form, as well as the information about Patient X’s pacemaker, to

day nurse Paula Zavala (“Zavala”), who completed the form’s second page,

again noting the presence of the pacemaker. Additionally, Zavala noted the

presence of a pacemaker on the communication board in Patient X’s room.

Later, Hoffman called the unit clerk Debra Watkins (“Watkins”), who informed

1 United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001) (quotations omitted).

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him that Patient X had been cleared for an MRI. At that point, Hoffman and a

radiology file room clerk proceeded to Patient X’s room and there spoke with

Zavala, who did not verbally note Patient X’s pacemaker.

Hoffman and the radiology clerk then transported Patient X, along with

her chart, to the MRI examination suite. Fifteen to thirty minutes later, Zavala

telephoned Patient X’s daughter regarding medication, and explained that

Patient X would be undergoing an MRI. The daughter advised that Patient X

should not undergo an MRI procedure due to her pacemaker, and Zavala

immediately called Hoffman to relay the information. At that point, however,

the MRI procedure had already been performed, fortunately without any

adverse consequences to Patient X.

Ultimately, however, the procedure had adverse consequences for

Hoffman’s employment. Following the incident’s reporting to Ronny Rose

(“Rose”), Hoffman’s supervisor in the Magnetic Resonance Department,

Human Resources Manager Marcos Ramirez (“Ramirez”) performed an

investigation that resulted in two pertinent findings. First, Ramirez found that

Hoffman, as the MRI Technician, was responsible for checking the MRI

Screening Form for the presence of contraindicators. Second, Hoffman’s

personnel file included two prior incidents and attendant warnings to Hoffman

for failure to follow MRI protocols. The first incident, which occurred on April

21, 2008, involved Hoffman performing an MRI procedure on a patient with a

history of renal problems, in response to which Hoffman was warned to

“[r]eview contrast form for contraindications.” In the second incident, which

occurred on April 6, 2011, Hoffman performed an MRI procedure on a person

with a hearing aid, another contraindication; this event was followed by a

general admonishment by Rose that no MRI procedures should be performed

where the screening form reflects the presence of contraindicators, specifically

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hearing devices. On November 3, 2011, Rose and Ramirez terminated

Hoffman’s employment with Baylor.

In November of 2012, Hoffman initiated this action, asserting that his

termination was the result of discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”) 2 and the Americans with

Disabilities Act (“ADA”). 3 The district court granted Baylor’s motion for

summary judgment on both claims, and Hoffman appealed.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo and apply the same

standards as the district court. 4 “A grant of summary judgment is proper when

there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law.” 5 In cases such as this, where employment

discrimination claims are based on circumstantial evidence, we apply the

burden-shifting framework established in McDonnell Douglas Corp. v. Green. 6

Under McDonnell Douglas, the analysis proceeds through three, burden-

shifting steps, whereby the plaintiff must first make a prima facie showing of

his claims, upon satisfaction of which “the employer must articulate a

legitimate, non-discriminatory reason for the adverse employment action.” 7

Then, if the employer satisfies its burden, the employee can yet prevail by

presenting evidence that the employer’s proffered reason is merely a pretext

for discrimination. 8 Finally, if the employee satisfies the third-step showing,

the employer may only prevail by proving it would have taken the adverse

2 29 U.S.C. § 623(a)(1) (prohibiting employment discrimination due to age).

3 42 U.S.C. § 12112 (prohibiting employment discrimination due to disability).

4 See Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005) (citing Machinchick

v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005)).

5 Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 257 (5th Cir. 2009).

6 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

7 Richardson v. Monitronics. Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).

8 Id.

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employment action regardless of the discriminatory motivation; this showing

“is effectively that of proving an affirmative defense.” 9

III. ANALYSIS

As before the district court, it is undisputed on appeal that Hoffman

satisfied the first three prima facie elements of each of his claims. To support

his prima facie burden on his ADEA claim, Hoffman must show: (1) “[he] was

discharged”; (2) “qualified for the position”; (3) “within the protected age group

at the time of the discharge”; and (4) “either replaced by someone younger,

replaced by someone outside the protected class, or otherwise discharged

because of [his] age.” 10 Regarding his ADA claim, Hoffman must make the

prima facie showing that he “(1) suffers from a disability; (2) was qualified for

the job; (3) was subject to an adverse employment action, and (4) was replaced

by a non-disabled person or treated less favorably than non-disabled

employees.” 11

Notwithstanding the different degree of proof required for showing

causation under the ADEA and ADA, 12 claims under both statutes allow a

showing of causation by disparate treatment, that is, by comparison with

employees outside the protected class. 13 In order for the disparate treatment

to be probative of discriminatory animus, however, the plaintiff must present

9Id. (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)).

10Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011) (citing Rachid v.

Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004)).

11 Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999).

12 The ADEA does not authorize a mixed-motives claim of age discrimination, Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009), such that a plaintiff-employee must show

that age was the but-for cause of the alleged age discrimination. Reed v. Neopost USA, Inc.,

701 F.3d 434, 440 (5th Cir. 2012). In contrast, “[t]he proper causation standard under the

ADA is a ‘motivating factor’ test . . . . [i.e.,] ‘discrimination need not be the sole reason for the

adverse employment decision.’” Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008)

(quoting Soledad v. U. S. Dep’t of Treasury, 304 F.3d 500, 503 (5th Cir. 2002)).

13 See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (ADA); Berquist v.

Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (ADEA).

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comparator employees of sufficient similitude. 14 As he does on appeal, Hoffman

relied solely on such comparator evidence of disparate treatment to satisfy both

his prima facie and pretext showings at the summary-judgment stage.

Specifically, though Hoffman concedes on appeal that he “clearly had

culpability in the breakdown of the MRI process—perhaps even the most

culpability,” Hoffman asserts he was treated differently than Zavala and

Watkins, both of whom Hoffman asserts were also culpable for the MRI

incident. At the time of Hoffman’s termination, Watkins was 54 or 55 years old

and Zavala was 49 years old, and neither individual had a history of

disabilities. Additionally, neither individual was disciplined as a result of the

Patient-X incident. Nevertheless, the district court found that Hoffman had

presented comparators that were too dissimilar and, as a result, had failed to

make his prima facie and pretext showings as to both claims.

Centering on the evaluation of his evidence of disparate treatment,

Hoffman’s challenge on appeal is two-fold. First, Hoffman asserts that the

standard by which we evaluate comparators is inconsistent with the Supreme

Court’s direction, and that summary judgment was not supported under a

more lenient standard. Second, Hoffman argues that the district court did not

appropriately consider evidence about those comparators which he argues

supported his disparate-treatment argument. For the reasons below, neither

argument is meritorious.

A. Comparator Standard

When a plaintiff proffers similarly situated employees in support of an

employment discrimination claim, we require that the relevant employment

14 See Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000) (citations

omitted).

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actions take place “under nearly identical circumstances.” 15 At the same time,

we have emphasized that “nearly identical is not synonymous with

identical.” 16

Applied to the broader circumstances of a plaintiff’s employment

and that of his proffered comparator, a requirement of complete or

total identity rather than near identity would be essentially

insurmountable, as it would only be in the rarest of circumstances

that the situations of two employees would be totally identical. 17

In practical effect, this standard renders employees not similarly

situated when, compared to the plaintiff, the employees have different work

responsibilities or different supervisors, or work in different company

divisions, or were subject to adverse employment actions too removed in time

or for violations too dissimilar in type. 18 Further, “[i]f the ‘difference between

the plaintiff’s conduct and that of those alleged to be similarly situated

accounts for the difference in treatment received from the employer,’ the

employees are not similarly situated for the purposes of an employment

discrimination analysis.” 19 Specifically regarding the disciplinary histories of

employees, we have expressly incorporated the guidance of the Supreme Court

in McDonald v. Santa Fe Trail Transportation Co.: “As the Supreme Court has

instructed, the similitude of employee violations may turn on the ‘comparable

seriousness’ of the offenses for which discipline was meted out and not

15Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (quoting Little v.

Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir.1991)).

16 Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012) (internal quotation

marks omitted).

17 Lee, 574 F.3d at 260.

18 See id.

19 Id. at 260 (quoting Wallace v. Methodist Hosp. Sys, 271 F.3d 212, 221 (5th Cir. 2001)

(emphasis added)).

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necessarily on how a company codes an infraction under its rules and

regulations.” 20

B. Discussion

Hoffman asserts that this approach does not comport with that of the

Supreme Court or those of other circuit courts. Hoffman first asserts that our

standard is inconsistent with the Supreme Court’s evaluation, within the

McDonnell Douglas rubric, of whether employees are similarly situated.

Specifically, Hoffman challenges this Court’s incorporation of the phrase

“nearly identical” as not originating in Supreme Court jurisprudence. On that

basis, Hoffman further argues that we should adopt a more lenient standard

applied by a district court in Coveney v. U.S. Bank National Ass’n, by which

comparators must have “(1) shared the same supervisor, (2) [been] subject to

the same standards, and (3) 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.” 21

As an initial matter, “[i]t is well-established that one panel of our court

will not overturn another absent an intervening precedent by our court sitting

en banc or a Supreme Court precedent.” 22 Beyond that principle, Hoffman’s

legal argument is unpersuasive, elevating superficial, verbal distinctions to the

neglect of substantive, practical commonalities, a point that is illustrated by

the factual contours of this case.

Zavala and Watkins are excessively dissimilar under our precedent,

which applies the standard enumerated by the Supreme Court, and even under

the less-demanding Coveney standard upon which Hoffman relies. The record

20 Id. at 261 (emphasis added) (quoting McDonald v. Santa Fe Trail Transp. Co., 427

U.S. 273, 283 n.11 (1976)) (emphasis added).

21 No. 1:07-CV-706, 2008 WL 4332515, at *8 (S.D. Ohio Sept. 17, 2008).

22 FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir. 1993).

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reveals that Zavala and Watkins did not share the same supervisor as

Hoffman, a differentiation which is perhaps due to their working in entirely

different departments of the hospital. Under our precedent, Hoffman’s

proffered comparators are insufficient for this reason alone. 23 Moreover, since

Hoffman is the only person of the three who was part of the Magnetic

Resonance Department, he alone was subject to the “Department Specific

Policy” with which he did not comply. It is further undisputed that neither

Zavala nor Watkins occupied positions as MRI Technicians, and thus were not

subject to the requirements of Hoffman’s job description.

Beyond the policy and job requirements, Hoffman has provided no

evidence that Zavala and Watkins were “subject to the same standards” as

Hoffman, a requirement of the more lenient standard. 24 Finally, as the only

person from whom compliance was required, only Hoffman had a history of

reprimands for his noncompliance; in contrast to Hoffman’s two previous

reprimands, Zavala and Watkins had no such history. In light of this

disciplinary-history distinction, Zavala and Watkins are not valid comparators

under the precedent of this Court and the Supreme Court, because any

shortcoming by Zavala and Watkins was not of “comparable seriousness” to

Hoffman’s third failure to abide the safety protocols. 25 This distinction further

vitiates the disparate-treatment comparison under the standard promoted by

Hoffman, since the lack of previous failures is certainly a “differentiating or

mitigating circumstance[] that would distinguish [Zavala’s and Watkin’s]

conduct or [Baylor]’s treatment of them for it.” 26

23 See Lee, 574 F.3d at 259.

24 Coveney, 2008 WL 4332515, at *8.

25 Lee, 574 F.3d at 261 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273, 283 n.11 (1976)).

26 Coveney, 2008 WL 4332515, at *8 (quoting Ecergovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 352 (6th Cir. 1998).

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C. Conclusion

In sum, because we conclude that Hoffman’s proffered comparators are

insufficiently similar to constitute probative evidence of discriminatory

animus, the district court did not err in its consideration thereof.

AFFIRMED.

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