Opposition Brief — Seyed Mohsen Sharifi Takieh, Petitioner v. Banner Health, et al.

No. 21-1597

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------SEYED MOHSEN SHARIFI TAKIEH,

Petitioner,

v.

BANNER HEALTH, JANICE DINNER,

MICHAEL O’CONNOR, M.D., PETER FINE,

CHRISTOPHER VOLK, MICHAEL O’MEARA, M.D.,

AND STEVEN MAXFIELD, M.D.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------BRIEF IN OPPOSITION

---------------------------------♦--------------------------------ANDREW S. GORDON*

L. KEITH BEAUCHAMP

KATHERINE L. HYDE

COPPERSMITH BROCKELMAN PLC

2800 N. Central Avenue, Suite 1900

Phoenix, Arizona 85004

Telephone: (602) 224-0999

Facsimile: (602) 224-6020

agordon@cblawyers.com

kbeauchamp@cblawyers.com

khyde@cblawyers.com

Counsel for Respondents

Banner Health, Janice Dinner,

Michael O’Connor, M.D.,

Peter Fine and Christopher Volk

*Counsel of Record

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

ISSUES PRESENTED FOR REVIEW

I.

Did the Ninth Circuit Court of Appeals err by concluding that Petitioner failed to plausibly allege

but-for causation under Comcast Corporation v.

National Association of African American-Owned

Media, 140 S. Ct. 1009, 1019 (2020)?

II. Did the Court of Appeals err in concluding that Petitioner’s First Amended Complaint incorporated

by reference the Arizona Superior Court decision

upholding the termination of his medical staff

privileges on non-discriminatory grounds, namely

patient care issues, his alteration of medical records, and his disruptive behavior?

III. Did the Court of Appeals err in concluding that the

allegations regarding disparate treatment of Petitioner as compared to non-Arab physicians failed

to establish that race was a but-for cause of the

termination of privileges because the non-Arab

physicians were not “similarly situated?”

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondent Banner Health hereby states that it is an Arizona

nonprofit corporation and as such has no parent corporation, nor is there any publicly held corporation that

holds ten percent or more of its stock.

iii

TABLE OF CONTENTS

Page

Issues Presented for Review ................................

i

Corporate Disclosure Statement .........................

ii

Table of Authorities .............................................

v

Statement of the Case .........................................

1

I.

Termination of Privileges at BBMC ..........

1

II.

Sharifi’s State Court Lawsuit Challenging

Termination of Privileges ..........................

3

Sharifi’s Second State Court Lawsuit Targeting Individual Defendants ....................

4

Sharifi’s District Court Action Alleging

Racial Discrimination ................................

4

The Court of Appeals’ Memorandum Disposition Affirming Dismissal of All Claims .....

7

Argument .............................................................

9

III.

IV.

V.

I.

The District Court properly considered Petitioner’s allegations related to the Superior Court’s Ruling ..................................... 11

II.

Petitioner failed to plausibly allege but-for

causation under Comcast Corporation v.

National Association of African AmericanOwned Media, 140 S. Ct. 1009 (2020) ....... 12

A. Standard of Review ............................. 13

B. Elements of a Section 1981 Claim ...... 13

iv

TABLE OF CONTENTS—Continued

Page

C. The District Court did not err by concluding that the FAC alleges multiple

race-neutral reasons for the revocation of Sharifi’s privileges, which renders his claims implausible ................. 14

D. Petitioner failed to allege disparate

treatment because the non-Arab physicians he identified were not “similarly situated” ...................................... 18

Conclusion............................................................ 25

v

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................... 10, 11, 13, 17

Astre v. McQuaid,

804 F. App’x 665 (9th Cir. 2020) ..............................15

Bastidas v. Good Samaritan Hosp. LP,

774 F. App’x 361 (9th Cir. 2019) ............ 14, 20, 21, 23

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................... 10, 11, 13, 17

Campbell v. Knife River Corp.—Nw.,

783 F. Supp. 2d 1137 (D. Or. 2011) .........................21

Comcast Corporation v. National Association of

African American-Owned Media,

140 S. Ct. 1009 (2020) ..................................... passim

Domino v. Kentucky Fried Chicken,

No. 19-CV-08449-HSG, 2020 WL 5847306

(N.D. Cal. Oct. 1, 2020) ............................................16

Faulkner v. ADT Sec. Servs., Inc.,

706 F.3d 1017 (9th Cir. 2013) ..................................13

Gen. Bldg. Contractors Ass’n v. Pennsylvania,

458 U.S. 375 (1982) .................................................14

Manatt v. Bank of Am., NA,

339 F.3d 792 (9th Cir. 2003) ....................................14

Orellana v. Mayorkas,

6 F.4th 1034 (9th Cir. 2021) ......................................8

Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

442 F.3d 741 (9th Cir. 2006) ................................ 8, 12

vi

TABLE OF AUTHORITIES—Continued

Page

Sharifi v. Banner Health,

No. 1 CA-CV 20-0110, 2021 WL 1921831

(Ariz. Ct. App. May 13, 2021) ....................................3

Sprewell v. Golden State Warriors,

266 F.3d 979 (9th Cir. 2001) ....................................13

Starr v. Baca,

652 F.3d 1202 (9th Cir. 2011) ..................................21

United States v. Black,

482 F.3d 1035 (9th Cir. 2007) ..................................12

United States v. Kama,

394 F.3d 1236 (9th Cir. 2005) ..................................24

United States v. Ritchie,

342 F.3d 903 (9th Cir. 2003) ....................................11

Vasquez v. Cnty. of Los Angeles,

349 F.3d 634 (9th Cir. 2004) .................... 8, 14, 19, 20

STATUTES

A.R.S. § 12-349 ..............................................................4

A.R.S. § 36-445 ............................................................24

A.R.S. §§ 36-445, et seq. ................................................1

A.R.S. § 36-445.01 .......................................................24

A.R.S. § 36-445.02 .......................................................24

A.R.S. § 36-445.02(B) ....................................................3

42 U.S.C. § 1981 .................................................. passim

42 U.S.C. § 1981(a) ......................................................14

vii

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Fed. R. Civ. P. 12(b)(6) ............................................. passim

S. Ct. R. 10.....................................................................9

1

STATEMENT OF THE CASE

I.

Termination of Privileges at BBMC.

Petitioner Sharifi had medical staff membership

and clinical privileges to practice at Banner Baywood

Medical Center (“BBMC”), part of Banner Health. In

March 2017, the Medical Executive Committee (“MEC”)

at BBMC initiated a peer review investigation of several of Sharifi’s cases where he practiced interventional cardiology using thrombolytics. [ER-67 ¶¶ 233–

235] The review was conducted pursuant to state statutes mandating and governing peer review investigations of medical staff members (A.R.S. §§ 36-445, et

seq.). [2-BannerSER-3] Among other steps in the process, the MEC appointed external reviewers to investigate certain of the cases. [ER-74 ¶ 297] Sharifi sent

correspondence to MEC members that caused Defendant O’Meara, in his role as President of the Medical

Staff, to warn Sharifi that making harassing allegations and threatening retaliation against members of

the MEC could itself result in corrective action. [ER68–69, ER-82 ¶¶ 251–252, 364]

In August 2017, based on critical reports received

by the outside reviewers, the MEC proposed that Sharifi voluntarily agree to obtain pre-approval from the

medical staff before using thrombolytics. [ER-77–78

¶¶ 321–325] Sharifi refused, and so the MEC imposed

pre-approval as a corrective action. [ER-78–79 ¶¶ 326,

330–331, 338] Pursuant to the BBMC Medical Staff

Bylaws (“Bylaws”), Sharifi then requested a Fair Hearing to challenge the pre-approval requirement. [ER-43

2

¶ 339] A hearing was set for December 2017, but Sharifi objected to the Hearing Panel because its members

were appointed by the Chief of Staff, who participated

in the peer review process, allegedly in violation of the

2015 Bylaws then in effect. [ER-79–80 ¶¶ 340–343]

The parties could not resolve how members of the

Hearing Panel should be appointed. [ER-80 ¶¶ 344–

345] The MEC proposed an amendment to resolve the

ambiguity in the Bylaws, and the BBMC Medical Staff

voted to adopt the amendment, which applied to the

medical staff as a whole, not just Sharifi. [ER-80–81

¶¶ 347–348] Pursuant to the amended Bylaws, three

physicians were appointed to the Hearing Panel and

the hearing was set for June 2018.

On June 15, 2018, the MEC notified Sharifi that it

recommended revocation of his medical staff membership and privileges based on three independent

grounds: 1) patient care deficits; 2) improper alteration

of medical records; and 3) abusive and bullying conduct. [2-BannerSER-4] The Fair Hearing was held on

September 7–8, 2018 and included testimony from over

a dozen witnesses and 85 exhibits. [2-BannerSER-6–7]

The Hearing Panel (three doctors who had not participated in the MEC recommendation and were not

economic competitors of Sharifi) recommended revocation, finding each of the three grounds independently

supported termination. [2-BannerSER-8–9] Sharifi

appealed to the ARC, comprised of one physician and

two non-physician members appointed pursuant to

the Bylaws. After considering the written record, briefing, and oral argument from Sharifi, the ARC also

3

recommended termination. [2-BannerSER-4–5] On December 8, 2018, the Banner Board accepted that recommendation and terminated Sharifi’s privileges at

BBMC. [ER-81 ¶¶ 351–353]

II.

Sharifi’s State Court Lawsuit Challenging

Termination of Privileges.

Sharifi challenged the termination of his privileges by filing suit against Banner in Arizona Superior

Court (CV2017-055848). He asserted claims for breach

of contract, violations of fair procedure, declaratory relief, and judicial review under A.R.S. § 36-445.02(B).

[Id.] He also filed a special action regarding his request

for a temporary restraining order, over which the

Court of Appeals declined to exercise jurisdiction (No.

1 CA-SA 19-0005). The Superior Court granted Banner’s motion to dismiss all counts except for the judicial review claim based on A.R.S. § 36-445.02(B) and

decided in favor of Banner on the judicial review claim

as a matter of law. [2-BannerSER-3–15] The Court

later ruled that substantial evidence supported the decision to terminate Sharifi’s privileges at BBMC on

each of the three independent grounds and that there

were no procedural errors during the Fair Hearing

(the “Ruling”). On Sharifi’s appeal, the Arizona Court

of Appeals affirmed the Ruling. Sharifi v. Banner

Health, No. 1 CA-CV 20-0110, 2021 WL 1921831, at *1

(Ariz. Ct. App. May 13, 2021).

4

III. Sharifi’s Second State Court Lawsuit Targeting Individual Defendants.

In February 2018, Sharifi filed a second action in

Superior Court (CV2018-001473), this time asserting

tort claims against Dinner, O’Connor, O’Meara, and

Del Giorno for interference with contract, defamation,

and conspiracy based on the peer review investigation

and termination of privileges. The court dismissed

most of Sharifi’s claims and later entered summary

judgment against Sharifi on his claims against Dinner

and Del Giorno for defamation. [2-BannerSER-75–78]

The Court also ordered Sharifi to pay Dinner’s attorneys’ fees as a sanction under A.R.S. § 12-349 for filing

the defamation claim against her without substantial

justification. After losing in all of those forums, Sharifi

filed this case.

IV. Sharifi’s District Court Action Alleging Racial Discrimination.

Petitioner Sharifi filed this action in December

2019, alleging racial discrimination in violation of 42

U.S.C. § 1981 based on the termination of his medical

staff membership and clinical privileges to practice at

BBMC. [ER-173–174] He brought claims not only

against Banner Health, but also its CEO, Senior Associate General Counsel, Chief Medical Officer, a member of the Board of Directors, the acting President of

the Medical Staff, and other members of the medical

staff. [ER-124–127] The initial complaint was dismissed for failure to meet the “but-for” causation test

set out in Comcast Corp. v. National Association of

5

African American-Owned Media, 140 S. Ct. 1009

(2020), but Sharifi was granted leave to amend. [ER121–122]

The First Amended Complaint (“FAC”) parroted

the Comcast causation standard but still lacked wellpled factual allegations sufficient to meet the standard. [ER-37–120] Sharifi’s claim rested on issues that

had been resolved against him in previous state court

litigation, namely that the peer review investigations

were without merit and that Banner Health had no

valid reason to terminate privileges, violated its Bylaws, and deprived him of due process during the Fair

Hearing. [Id.] The FAC referred extensively to the Ruling in the first state court lawsuit (No. CV2017055848), as described above. [Id. ¶¶ 427–461] The FAC

also offered various non-discriminatory reasons for the

revocation of Sharifi’s privileges, including that BBMC

physicians resented Sharifi for obtaining more patient

referrals and that Banner Health was retaliating

against Sharifi for testifying against Banner Health in

a medical malpractice lawsuit. [Id. ¶¶ 80, 148, 161,

202, 328, 354, 135, 143, 273, 354, 366, 367, 385]

Respondents argued that Sharifi’s conclusory allegation that the termination would not have occurred

but-for racial animus was implausible, given Sharifi’s

own allegations that there were other reasons for Respondents’ alleged animus that had nothing to do

with race and the allegations related to the Ruling

in state court that Banner had three legitimate nondiscriminatory grounds to terminate his privileges.

Respondents argued that Sharifi’s own allegations

6

combined with the state court Ruling rendered any inference of racial discrimination based on the FAC’s allegations implausible, particularly in light of the butfor causation standard.

The District Court concluded that Sharifi had

failed to plausibly allege that his race was a but-for

cause of Banner revoking his privileges. [App. 2 17a–

47a] The District Court took judicial notice of the Ruling. [App. 2 16a] The District Court reasoned that

Sharifi’s claims were implausible because the FAC alleged race-neutral reasons for the revocation of his

privileges, and because the state court’s prior determination that substantial evidence supported Banner’s

decision to revoke Sharifi’s privileges on grounds of patient care concerns, alteration of medical records, and

disruptive behavior rendered his § 1981 claims facially

implausible. [App. 2 16a–22a]

The District Court also concluded that the Ruling

was entitled to preclusive effect on the issue of whether

the three stated reasons for Banner’s decision were

supported by substantial evidence. [App. 2 22a–42a]

The District Court reasoned that if Banner would have

revoked Sharifi’s privileges due to patient care concerns, his alteration of medical records, or disruptive

behavior, then his race could not be a but-for cause of

Banner’s decision. [App. 2 42a] The court’s conclusion

as to issue preclusion did not bar Sharifi from attempting to allege facts showing racial discrimination was

the but-for cause of Banner’s decision. [App. 2 39a–

42a] However, he was unable to meet burden of doing

so. [App. 2 42a–47a]

7

The District Court concluded that Sharifi failed to

allege factual allegations as to similarly situated physicians plausibly suggesting that Sharifi’s race was a

but-for cause of Banner Health’s decision. [App. 2 42a–

44a] Sharifi alleged nothing about the procedures the

other physicians performed, how their conduct compared to his, or how they were treated more favorably

in peer review. [Id.] Sharifi also failed to make factual

allegations pertaining to discriminatory remarks plausibly suggesting that race was the but-for cause of Banner’s decision or any of the Defendants’ actions. [Id.]

His claim was based on comments having nothing to

do with race made by persons other than the decision

makers on the Fair Hearing Panel, the Appellate Review Committee (“ARC”), or the Banner Board of Directors who revoked his hospital privileges. [Id.]

Although there was a “narrow pathway” for Sharifi to

state a claim for racial discrimination, the factual allegations in the FAC were insufficient to do so.

V.

The Court of Appeals’ Memorandum Disposition Affirming Dismissal of All Claims.

In a memorandum decision dated February 16,

2022, the Ninth Circuit Court of Appeals affirmed the

District Court’s decision that Sharifi failed to plausibly

allege that race was a but-for cause of Banner’s decision to terminate his privileges. First, the court concluded that the district court did not abuse its

discretion by taking judicial notice of the Ruling upholding the termination of Sharifi’s PSA, because the

Ruling is a public record whose accuracy cannot be

8

reasonably questioned. [App. 1 3a ¶ 2 (citing Reyn’s

Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746

n.6 (9th Cir. 2006) (“We may take judicial notice of

court filings . . . ”).] The court concluded that the Ruling was not entitled to preclusive effect under Arizona

law. However, because Sharifi incorporated the Arizona

Superior Court’s decision into the FAC by referring to

it extensively, the decision was relevant to the determination of whether Sharifi’s claims are plausible, and

any error by the district court regarding the ruling’s

preclusive effect was “of no consequence.” [Id. ¶ 3] The

Arizona Superior Court’s decision articulated three

non-discriminatory grounds for the termination of

Sharifi’s privileges: patient care issues, alteration of

medical records, and disruptive behavior. The court

concluded that these non-discriminatory reasons render the allegation that race was the but-for cause of the

termination of Sharifi’s PSA implausible. [Id. ¶ 4 (citing Orellana v. Mayorkas, 6 F.4th 1034, 1043 (9th Cir.

2021) (observing that “the complaint itself undermines

[plaintiff ’s] theory of the case and renders it implausible”)).]

In addition, the Court concluded that the allegations regarding disparate treatment of Sharifi as compared to non-Arab physicians fail to establish that race

was a but-for cause of the revocation of Sharifi’s PSA

because the non-Arab physicians were not “similarly

situated” to Sharifi, because none of them generated

patient care issues, altered medical records, and exhibited disruptive behavior. [App. 1 4a ¶ 5 (citing Vasquez

v. Cnty. of Los Angeles, 349 F.3d 634, 641–642 (9th Cir.

9

2004), as amended (concluding that the plaintiff ’s colleagues were not similarly situated to him because one

was not “involved in the same type of offense” and the

other did not “engage in problematic conduct of comparable seriousness”)).]

---------------------------------♦---------------------------------

ARGUMENT

This Court’s Rule 10 advises that a “writ of certiorari is not a matter of right, but of judicial discretion.”

Rule 10 provides that in determining whether to grant

a petition, the Court may consider circumstances involving conflicts between decisions of the federal appellate courts on the same important matter, conflicts

between the federal appellate courts and state courts

of last resort on an important question of federal law,

a departure from the accepted and usual course of judicial proceedings, or an important question of federal

law that has not been, but should be, settled by this

Court. None of those circumstances are raised in the

Petition.

Rule 10 also advises that a petition is “rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law.” Petitioner argues that the District

Court of Arizona and the Ninth Circuit Court of Appeals misapplied the law when determining that he

failed to state a claim for relief under Rule 12(b)(6) of

the Federal Rules of Civil Procedure. That is not a

10

compelling reason to grant his petition. Furthermore,

there was no misapplication of the law in this case.

Sharifi argues that the Petition should be granted

because lower courts “need guidance” on how to apply

the pleading standards in Twombly and Iqbal and

“struggle with the application of the but-for causation

standard in this context—especially where the court is

called upon to juggle competing explanations and determine the proper weight to give the various versions. . . .” [Pet. at 21–22] But neither the District

Court nor the Court of Appeals weighed Sharifi’s allegations against any “competing explanations” provided

by the Respondents or otherwise struggled to properly

apply the pleading standards in Twombly and Iqbal—

Sharifi is just unhappy with the outcome of that analysis.

Sharifi argues that the courts below improperly

weighed the “veracity of Banner’s allegations of ‘patient care issues, altered medical records, and exhibited disruptive behavior.’ ” [Pet. at 20] But those were

not Respondent Banner’s allegations—they were Sharifi’s own allegations as described in his own complaint.

Sharifi even devoted multiple pages of the FAC to a

discussion of the state court Ruling, which found that

substantial evidence supported the termination of his

privileges on the grounds of patient care issues, altered

medical records, and disruptive behavior.

Both the District Court and the Court of Appeals

considered Sharifi’s own allegations in the complaint,

taking them as true and viewing them in the light most

11

favorable to him, and concluded that they undermined

his claim and rendered the but-for causation element

implausible. There is hardly a debate among lower

courts as to whether a plaintiff ’s own allegations may

undermine the plausibility of his or her claim, and

there is no inconsistency or tension between the butfor causation standard set forth in Comcast and the

pleading standards set forth in Twombly and Iqbal.

I.

The District Court properly considered Petitioner’s allegations related to the Superior Court’s Ruling.

When ruling on a Rule 12(b)(6) motion to dismiss,

a district court may consider documents incorporated

by reference in the complaint without converting the

motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–908

(9th Cir. 2003). “Even if a document is not attached to

a complaint, it may be incorporated by reference into a

complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff ’s claim.” Id. at 908. “The defendant may offer such

a document, and the district court may treat such a

document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Id. The FAC

referred extensively to the Ruling, in which the state

court concluded that substantial evidence supported

the findings that Banner Health terminated privileges based on patient care concerns, alteration of

medical records, and disruptive behavior. [ER-91–96,

12

FAC ¶¶ 427–461] Petitioner devoted several pages and

over thirty paragraphs in the FAC to a discussion of

the Ruling, which was later upheld on appeal. The District Court properly treated the Ruling as part of the

complaint for purposes of analyzing the legal sufficiency of that pleading.

Alternatively, the District Court properly took judicial notice of the Ruling. United States v. Black, 482

F.3d 1035, 1041 (9th Cir. 2007) (a court “may take notice of proceedings in other courts . . . if those proceedings have a direct relation to matters at issue”); Reyn’s

Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746

n.6 (9th Cir. 2006) (“We may take judicial notice of

court filings. . . .”). The Ninth Circuit correctly concluded that the district court did not abuse its discretion by taking judicial notice of the Arizona Superior

Court’s Ruling because it is a public record whose accuracy cannot be reasonably questioned.

II.

Petitioner failed to plausibly allege but-for

causation under Comcast Corporation v.

National Association of African AmericanOwned Media, 140 S. Ct. 1009 (2020).

Petitioner argues that the District Court improperly resolved disputed questions of material fact by

considering the Ruling, as incorporated in the FAC.

But Petitioner’s own factual allegations contradicted

his conclusory assertion that his privileges would not

have been terminated but-for his race. The District

Court did not resolve any disputed questions of fact by

13

taking into consideration the Ruling and all of the allegations in the FAC.

A. Standard of Review.

The Court reviews de novo the district court’s order granting a motion to dismiss for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6).

Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019

(9th Cir. 2013). All well-pleaded allegations of material

fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving

party. Id. “To survive a motion to dismiss, a complaint

must allege ‘enough facts to state a claim to relief that

is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when ‘the plaintiff pleads factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Although well-pleaded factual allegations are

taken as true and construed in the light most favorable

to the plaintiff, the court should not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell

v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

2001).

B. Elements of a Section 1981 Claim.

Section 1981 “guarantees ‘all persons’ the same

right as white citizens to ‘make and enforce contracts.’ ”

14

Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir.

2003) (quoting 42 U.S.C. § 1981(a)). Section 1981 applies

only to claims of intentional, “purposeful,” discrimination. Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458

U.S. 375, 389 (1982). There are two ways to demonstrate racial discrimination under Section 1981: provide evidence of actual discrimination or satisfy the

four-part test for disparate treatment. Vasquez v. Cty.

of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). To satisfy the disparate treatment test, a plaintiff must show

that: (1) he belongs to a protected class; (2) he was

qualified for his position; (3) he was subject to an adverse employment action; and (4) “similarly situated

individuals outside [his] protected class were treated

more favorably.” Bastidas v. Good Samaritan Hosp. LP,

774 F. App’x 361, 363 (9th Cir. 2019) (quotation omitted).

C. The District Court did not err by concluding that the FAC alleges multiple

race-neutral reasons for the revocation

of Sharifi’s privileges, which renders

his claims implausible.

In addition to the three race-neutral reasons for

the termination of privileges discussed in the Ruling,

the District Court concluded that Sharifi alleged four

more separate and distinct race-neutral reasons for

the alleged adverse action. [ER-12–14] Specifically,

Sharifi alleged that Banner revoked his privileges,

at least in part, because he testified against Banner

in a wrongful death case; that other members of the

15

medical staff were motivated by professional jealousy

and competition; that O’Connor was motivated by

Sharifi’s complaint about him to Banner’s Chief Clinical Officer; and that Dinner was motivated by Sharifi’s

lawsuit and bar complaint against her. [ER-12–14] The

District Court cited the specific paragraphs in the FAC

supporting the “reasonable inference . . . that Defendants were motivated, in part, by their previous encounters with Sharifi, not his race.” [ER-14]

Sharifi fundamentally misunderstands the but-for

causation standard set out in Comcast, which reversed

the Ninth Circuit’s application of the “motivating factor” test for causation in a § 1981 racial discrimination

claim. Comcast Corp. v. National Association of African

American-Owned Media, 140 S. Ct. 1009, 1014 (2020).

“To prevail, a plaintiff must initially plead and ultimately prove that, but-for race, it would not have suffered the loss of a legally protected right.” Id. at 1019.

In other words, Sharifi’s race was not a but-for cause

of the adverse action if the factual allegations in the

FAC show that his privileges would have been terminated anyway (in the absence of any racially discriminatory animus) based on any one of the four raceneutral reasons Sharifi alleges in the FAC, or any one

of the three other race-neutral reasons that were held

to be supported by substantial evidence in the Ruling.

The District Court cited two decisions applying the

Comcast but-for standard in circumstances where the

complaint itself identified independent non-discriminatory

reasons for the alleged contractual impairment, rendering a § 1981 claim implausible. [App. 2 19a] In Astre

16

v. McQuaid, 804 F. App’x 665, 667 (9th Cir. 2020), the

Ninth Circuit concluded that where a plaintiff alleged

that she resigned from her job after her employer lost

funding due to a lack of community support, her § 1981

claims were implausible because, considering that

race-neutral explanation, her other allegations did

not give rise to a plausible inference that alleged racially discriminatory actions caused the alleged impairment to the contractual relationship. In Domino v.

Kentucky Fried Chicken, No. 19-CV-08449-HSG, 2020

WL 5847306, at *2 (N.D. Cal. Oct. 1, 2020), the court

noted that Comcast had rejected the “motivating factor” test and applied a but-for standard: “Plaintiff must

plead that racial discrimination was the but-for cause

of being denied service at the restaurant. Because

Sharifi alleges the employees were also motivated by

previous, personal interactions with Plaintiff (complaints and refusal to purchase food), he fails to state

a § 1981 claim.”

Like in Domino, the FAC alleges that Respondents

harbored animus against Sharifi based on their previous, personal interactions with him, including his prior

testimony against Banner in a wrongful death case,

professional jealousy and competition, and retaliation

for Sharifi’s complaints against O’Connor and Dinner,

which all had nothing to do with his race. [ER-13, citing FAC ¶¶ 80, 135, 143, 148, 161, 202, 267, 273, 328,

354, 366–367, 386, Wilson Decl. ¶¶ 15 & 19, Rose Decl.

¶ 25] Considering Sharifi’s own allegations of multiple

race-neutral reasons why Banner revoked his privileges, Sharifi has failed to properly plead a facially

17

plausible claim that racial discrimination was the butfor cause of the termination of his clinical privileges.

The District Court did not weigh any evidence

proffered by Respondents, as Sharifi contends. In fact,

the court noted that “this case presents an unusual

scenario” because the “FAC itself contains independent, non-discriminatory reasons for Banner’s decision.”

[ER-26] The court concluded that Sharifi failed to state

a claim for relief as to his prima facie case of racial discrimination because he failed to make a facially plausible showing that race was a but-for cause of the

adverse action against him. [ER-26] Therefore, Sharifi’s argument that the dismissal was based on the improper consideration of affirmative defenses at the

pleading stage falls flat. Not only is it entirely proper

for a district court to consider a document incorporated

into the complaint or subject to judicial notice on a

Rule 12(b)(6) motion to dismiss, it is also proper to consider whether the factual allegations in the complaint

are sufficient to support a facially plausible claim for

relief.

There is no inconsistency between the but-for causation standard required by Comcast and the pleading

standards required by Iqbal and Twombly. The District Court properly considered Sharifi’s own allegations of multiple non-discriminatory reasons for the

alleged adverse action, as well as the alleged patient

care concerns, alteration of medical records, and disruptive conduct, when determining whether he had

plausibly factual allegations showing that but-for his

race, his privileges would not have been terminated.

18

Petitioner also argues that the District Court

erred by not taking into account his allegations related

to the Arizona Medical Board’s determination not to

revoke Sharifi’s license to practice medicine in Arizona.

[Pet. at ii] The FAC alleged that the Board supposedly

“determined that Sharifi had done nothing wrong”

with respect to certain patient care issues. [ER-93,

FAC ¶¶ 437–438] Even assuming this allegation would

support an inference that Banner did not terminate his

privileges based on those patient care issues, it says

nothing about the multiple other separate and distinct

alleged race-neutral reasons that Sharifi’s privileges

were terminated. Sharifi still alleged that his privileges were terminated because of his improper medical

record alterations, disruptive behavior, and personal

animus against him based on jealousy, competition,

and race-neutral retaliation. The allegation that the

Board “determined that Sharifi had done nothing

wrong” does not show that it is facially plausible that

his privileges would not have been terminated but-for

his race.

D. Petitioner failed to allege disparate

treatment because the non-Arab physicians he identified were not “similarly

situated.”

The District Court concluded that the FAC’s allegations that five non-Arab physicians were treated

more favorably than Sharifi because they were not reported to the Arizona Medical Board or the National

Practitioner’s Databank did not plausibly suggest that

19

his race was the but-for cause of Banner’s decision to

terminate privileges. [App. 2 42a-44a] The court correctly noted that Sharifi’s § 1981 claims are not premised on any report to the AMB or the NPDB, and that

the FAC did not provide any information about

whether the identified physicians were subject to peer

review or whether their privileges were suspended or

revoked. [Id.] The court also correctly observed that

none of the identified physicians was alleged to have

presented all three concerns that supported Banner’s

decision to revoke privileges. [Id.] And the court correctly noted that Sharifi’s conclusory assertion that the

identified physicians were similarly situated was not

supported by any factual allegations stating how the

identified physicians were similarly situated or how

the alleged facts established that similarity. [Id.]

The Ninth Circuit affirmed these conclusions, citing Vasquez v. County of Los Angeles, 349 F.3d 634, 641

(9th Cir. 2003), as amended (Jan. 2, 2004) for the proposition that employees are not “similarly situated”

where they are “not involved in the same type of offense” and “did not engage in problematic conduct of

comparable seriousness.” [App. 1 4a] “[I]ndividuals are

similarly situated when they have similar jobs and display similar conduct.” Vasquez, 349 F.3d at 641. The

dissenting opinion in the Ninth Circuit memorandum

decision, authored by the Hon. Cathy Ann Bencivengo

(United States District Judge for the Southern District

of California, sitting by designation), noted that the

Vasquez decision considered the “similarly situated”

analysis at the summary judgment stage, rather than

20

on a motion to dismiss. [App. 1 6a] However, the majority’s Memorandum correctly noted that the dissent did

not cite any authority that calls into question the proposition in Vasquez that individuals are not “similarly

situated” if there were not “involved in the same type

of offense” and did not “engage in problematic conduct

of comparable seriousness.” [App. 1 4a] Because Sharifi

failed to allege facts showing that any of the identified

individuals were involved in the same type of conduct

and conduct of comparable seriousness, he failed to

properly plead that they were similarly situated.

Sharifi argues that Respondents claimed at oral

argument that the non-Arab doctors engaged in different or less culpable conduct, an assertion of fact that is

outside the complaint. [Pet. at 20] But Respondents did

not ask the court to consider any facts outside the complaint related to the physicians identified in the FAC;

they only argued that the factual allegations in the

FAC did not show that the identified non-Arab physicians had engaged in the same and equally culpable

conduct as Sharifi. The District Court noted that Sharifi failed to offer any legal authority supporting his

argument that the court should not consider the similarly situated element of his claim until after discovery.

[App. 2 44a] Sharifi still fails to offer any legal authority to support that argument. When affirming the Rule

12(b)(6) dismissal in Bastidas, the Ninth Circuit considered whether the “similarly situated” element was

properly pled, and it was appropriate for the District

Court to do the same. Bastidas, 774 F. App’x at 364.

21

The District Court did not err in its analysis of the

“similarly situated” element of Sharifi’s claim. Sharifi

did not allege facts plausibly showing that the physicians he identified were similarly situated because the

FAC says nothing about the procedures they performed, how their conduct compared to his, or how they

were treated more favorably in peer review. In Bastidas, the Ninth Circuit analyzed the similarly situated requirement in the context of termination of

hospital privileges, and that decision is persuasive

here. Bastidas, 774 F. App’x at 363 (citing Starr v. Baca,

652 F.3d 1202, 1216 (9th Cir. 2011)); see also Campbell

v. Knife River Corp.—Nw., 783 F. Supp. 2d 1137, 1152

(D. Or. 2011). The allegations of discrimination in Bastidas were insufficient, even though the plaintiff identified two white physicians who were purportedly

treated more favorably following peer review, because

he did not adequately allege that they were similarly

situated. Bastidas did not sufficiently allege (i) that the

white doctors had similar jobs (as there were different

types of surgical procedures involved), (ii) that they engaged in conduct similar to his, or (iii) that the patient

safety concerns for those physicians were similar to

his. The factual allegations did not “ ‘plausibly suggest

an entitlement to relief ’ because they neither satisfy

the disparate treatment standard nor support an inference that racial animus is the reason for the adverse

employment action.” 652 F.3d at 1216. In short, the

failure to adequately allege that similarly situated persons were treated differently is fatal to a Section 1981

claim, regardless of whether plaintiff seeks to satisfy

22

the disparate treatment test or plead facts sufficient to

establish a plausible inference of racial discrimination.

Sharifi alleges: “Defendants’ investigations were

initiated in the first instance on the basis of Sharifi’s

race, and then pursued relentlessly against him with

the pre-determined result being the termination of

his privileges, where other similarly situated nonArabic physicians would never have been subjected to

an investigation.” [FAC ¶ 401] He identifies several

physicians who allegedly practiced “incompetently” or

caused the death of a patient (in his opinion) yet were

not reported to the Arizona Medical Board (“AMB”) or

the National Practitioner’s Database (“NPDB”). [FAC

¶¶ 419–425] But Sharifi does not and cannot allege

that Banner took adverse action (suspension or termination) against any of the identified physicians and

then failed to properly report such action to AMB or

NPDB. He does not allege that these physicians engaged in conduct sufficiently similar to his own such

that they should have been subjected to similar adverse action. Nor does he allege that they were treated

differently than he was in peer review proceedings.

There are also critical differences between Sharifi

and the identified physicians. For example, Sharifi alleges that “S.A.,” “J.G.,” and “A.A.” practiced at Banner

Heart Hospital, not BBMC, which has a different medical staff and a different MEC. [ER-90–91 FAC ¶¶ 419–

421, 423, 425] Sharifi does not allege that these individuals had privileges or practiced at BBMC. If S.A.,

J.G., and A.A. had privileges at a different facility, then

they are not similarly situated to Sharifi with respect

23

to BBMC’s peer review process and the personnel who

participated in that process. Sharifi alleges that patients died following treatment by “J.D.,” “J.G.,” and

“A.A.,” but he has not alleged facts showing that the

procedures they performed are the same ones considered during Sharifi’s peer review. Under Bastidas,

these physicians are not similarly situated because

they did not perform the same procedures. Sharifi has

also not alleged facts showing that the patient safety

concerns in the other cases are similar.

Furthermore, Sharifi does not allege that any of

these physicians engaged in “bullying” conduct. The

Superior Court’s Ruling concluded that substantial

evidence supported the Hearing Panel’s finding that

Sharifi engaged in unprofessional bullying [2-Banner

SER-3–15]; Sharifi does not allege that any of the identified physicians engaged in similar conduct or that

they did so without repercussions. Sharifi alleges that

“L.A. [ ] extensively changed her preliminary consult

report before it was signed and turned into a final report. She was not accused of having committed unprofessional conduct by performing ‘improper alteration of

records.’ ” [FAC ¶ 424] But Sharifi does not allege facts

showing that this physician’s amendments to the preliminary consult report were similar enough to constitute unethical behavior, as the Superior Court found

with respect to Sharifi. The Hearing Panel and the

Superior Court found that Sharifi’s medical record alterations were a deliberate attempt to mislead reviewers and were unprofessional and unethical (2-Banner

SER-3–15). There are no allegations showing that “L.A.”

engaged in similarly unprofessional conduct.

24

Sharifi does not allege that these physicians were

treated differently with respect to the peer review process;

he only alleges that they were not reported to the AMB

and NPDB. Reporting of adverse actions to AMB and

NPDB is required following final decisions to terminate

privileges, but peer review is confidential, for important

public policy reasons related to the improvement of patient care and safety. See A.R.S. §§ 36-445, 445.01,

445.02. Sharifi is merely speculating that these physicians were treated more favorably because there are no

government reports of adverse action. Those assumptions

are unwarranted and insufficient to show facial plausibility on the “similarly situated” element of his claim.

Sharifi acknowledges the legal standards applicable to the “similarly situated” element of his claim, but

offers no analysis applying those legal standards to the

facts alleged in the FAC. [Pet. at 19–20] Sharifi has not

alleged facts showing that any of these other physicians identified in the FAC had privileges at BBMC,

engaged in conduct that is sufficiently similar to his

own to demonstrate that they are similarly situated, or

were treated more favorably during peer review.

Finally, the Ninth Circuit Court of Appeals did not

reach the question of whether the District Court erred

by concluding that the FAC also failed to state claims

for individual liability against each one of the individual defendants, and Sharifi has waived any argument

that the court erred in its analysis of those issues.

“Generally, an issue is waived when the appellant

does not specifically and distinctly argue the issue in

his or her opening brief.” United States v. Kama, 394

25

F.3d 1236, 1238 (9th Cir. 2005). Even if Sharifi had

not waived the individual liability issues, the District

Court’s analysis was correct.

---------------------------------♦---------------------------------

CONCLUSION

The District Court did not misapply the law by dismissing Petitioner’s claims for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6), and the Court of

Appeals did not misapply the law by affirming the dismissal. Sharifi has had more than adequate opportunity to challenge the revocation of his privileges, and

no issue worthy of certiorari is presented. Respondents

respectfully request that the Petition be denied.

Respectfully submitted,

ANDREW S. GORDON*

L. KEITH BEAUCHAMP

KATHERINE L. HYDE

COPPERSMITH BROCKELMAN PLC

2800 N. Central Avenue, Suite 1900

Phoenix, Arizona 85004

Telephone: (602) 224-0999

Facsimile: (602) 224-6020

agordon@cblawyers.com

kbeauchamp@cblawyers.com

khyde@cblawyers.com

Counsel for Respondents

Banner Health, Janice Dinner,

Michael O’Connor, M.D.,

Peter Fine and Christopher Volk

*Counsel of Record