Jean Simpson v. Vanderbilt University

Filing

OPINION filed: We agree with the district court that no reasonable jury could find that similarly situated non-protected employees were treated more favorably than Dr. Simpson, and we AFFIRM the district court s order granting summary judgment. Decision not for publication. Alice M. Batchelder (authoring), Jane Branstetter Stranch, and Bernice Bouie Donald, Circuit Judges.

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0286n.06

FILED

No. 16-5381

May 22, 2017
DEBORAH S. HUNT, Clerk

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JEAN F. SIMPSON, M.D.,
Plaintiff-Appellant,
v.
VANDERBILT UNIVERSITY,
Defendant-Appellee.

BEFORE:

)
)
)
)
)
)
)
)
)
)
)

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

BATCHELDER, STRANCH, and DONALD, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. While employed as a professor by the
Vanderbilt University (“Appellee”), as part of the Vanderbilt University School of Medicine and
the Vanderbilt Medical Group (“VMG”), Appellant Jean Simpson started, ran, and solicited
clients for her own private business. Vanderbilt considered such actions to be a violation of
Vanderbilt’s Conflict of Interest Policy, VMG’s By-Laws, and VMG’s Participation Agreement
(to which Simpson was bound). After attempting to resolve the matter with Dr. Simpson, and
receiving very little cooperation, Vanderbilt terminated Dr. Simpson’s employment.
Dr. Simpson filed suit against Vanderbilt, alleging, in part, that she was terminated, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 through -17, and the Tennessee
Human Rights Act, Tenn. Code. Ann. § 4-21-101 through -1004, because of her gender. This is
an appeal from the district court’s order granting Vanderbilt’s motion for summary judgment on

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 2

No. 16-5381, Simpson v. Vanderbilt Univ.

the issue of gender discrimination. Because the district court properly found that Dr. Simpson
failed to identify a suitable male comparator, and failed to make out a prima facie case of
discrimination, we affirm the district court’s summary judgment order.
I.
Dr. Simpson worked for Vanderbilt from 1997 until her termination on October 24, 2013.
During her employment, Dr. Simpson signed a Participation Agreement with VMG and
understood that she was subject to the VMG By-Laws and Vanderbilt’s Conflict of Interest
Policy. At the time of her termination, Dr. Simpson held a full-time faculty appointment as a
professor in the Division of Anatomic Pathology. The Pathology Division formerly included a
dedicated breast-pathology consult service (the “Page Breast Service”), in which Dr. Simpson
participated. Vanderbilt eliminated the Page Breast Service in July 2012, and general surgical
pathology took over the practice.
While the Pathology Division reorganization was still pending, Dr. Simpson began her
own company, “Breast Pathology Consultants, Inc.” (“BPC”).

BPC is a dedicated breast-

pathology consult practice that differs little from Vanderbilt’s Page Breast Service. Beginning in
early 2012, Dr. Simpson began calling pathologists for whom she had previously provided
consultations on breast-cancer cases, and sending letters to several hundred pathologists, some of
whom had submitted consult cases to the Page Breast Service. Through her calls and letters, Dr.
Simpson informed the referral sources of the pending reorganization and offered her diagnostic
services, through BPC, as an alternative. Dr. Simpson remained a Vanderbilt employee after
starting her company and continued to work in the Pathology Division. Dr. Simpson provided
services through BPC throughout the remainder of her time at Vanderbilt and, between February
2012 and October 2013, she collected a total of $244,146.84 in fees through BPC.

-2-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 3

No. 16-5381, Simpson v. Vanderbilt Univ.

Dr. Simpson did not ask permission of Vanderbilt to begin her company, and she did not
discuss her new company with anyone at Vanderbilt. Dr. Simpson further did not disclose her
work with BPC on her 2012 Conflict of Interest form. In summer 2012, however, Vanderbilt
learned that Dr. Simpson was engaging in pathology services through BPC. Throughout the next
year, Vanderbilt informed Dr. Simpson on three separate occasions that such activity violated
Vanderbilt’s Conflict of Interest Policy, the VMG By-Laws, and the VMG Participation
Agreement, and that she needed to cease her work through BPC or face potential disciplinary
action. On October 15, 2012, Dr. Simpson filed a revised Conflict of Interest disclosure, noting
her work with BPC. However, Dr. Simpson otherwise denied that her activities competed with
Vanderbilt, and she argued that she had several male colleagues who had engaged in similar
activity and were allowed to maintain an outside practice.
In July 2013, The Dean of the School of Medicine appointed a faculty committee to
investigate the allegations against Dr. Simpson. Dr. Simpson submitted a written statement to
the committee, but declined the committee’s request to meet as part of its investigation. The
investigative committee concluded its investigation and reported its findings on September 16,
2013, stating:
The Committee finds that Dr. Simpson’s violations of the Vanderbilt University
Conflict of Interest and Commitment policy, the VMG By-laws, and the VMG
Provider Agreement, and her actions subsequent to that notification constitute
neglect of duty. We believe this is a serious violation and warrants termination for
cause and surrender of funds accrued from this outside business, Breast Pathology
Consultants, Inc. (breastconsults.com). We arrived at this conclusion based on
careful consideration of evidence reviewed and interpretation of the VMG Bylaws and VMG Provider Agreement.
The parties then, through their counsel, engaged in productive, but ultimately
unsuccessful, settlement communications. Dr. Simpson was offered the option to resign in lieu

-3-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 4

No. 16-5381, Simpson v. Vanderbilt Univ.

of termination, conditioned on her payment to Vanderbilt of certain funds received through BPC.
Dr. Simpson ultimately rejected this offer as unreasonable, and she was terminated for cause.
Dr. Simpson then filed a complaint against Vanderbilt in the United States District Court
for the Middle District of Tennessee, alleging that Vanderbilt violated Title VII of the Civil
Rights Act of 1964 and the Tennessee Human Rights Act when it terminated her employment on
the basis of gender discrimination and retaliation. Dr. Simpson, and Vanderbilt via counterclaim, also asserted state-law breach of contract claims against each other. Vanderbilt denied all
of Dr. Simpson’s claims and filed a Motion for Summary Judgment as to the claims for
discrimination and retaliation, which the district court granted. The court declined to exercise
jurisdiction over the state-law breach of contract claims. Dr. Simpson timely appealed the
judgment on the gender discrimination claim.1
II.
“We review de novo the grant of summary judgment by a district court.” Wheat v. Fifth
Third Bank, 785 F.3d 230, 236 (6th Cir. 2015). Summary judgment is appropriate only “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence, and
any inferences to be drawn from such evidence, “in the light most favorable to the [nonmoving]
party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). However, if the “nonmoving party has
failed to make a sufficient showing on an essential element of [the] case with respect to which

1

Dr. Simpson does not appeal the dismissal of her retaliation claim. Additionally, while Dr. Simpson’s opening
brief mentions her state-law breach of contract claim, she does not present argument as to how the district court
erred by dismissing without prejudice that claim. Therefore, we do not address the claim further. See Arch on the
Green, Inc. v. Groves, 761 F.3d 594, 602 (6th Cir. 2014 (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” (citation omitted)).

-4-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 5

No. 16-5381, Simpson v. Vanderbilt Univ.

she has the burden of proof,” the moving party is entitled to summary judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The district court held that Dr. Simpson failed to present a prima facie case of gender
discrimination for her termination. The district court further held that, even if Dr. Simpson had
presented a prima facie case, Vanderbilt articulated a legitimate, nondiscriminatory reason for
her termination, and Simpson failed to demonstrate that the stated reason was pretext for
discrimination. As the district court properly determined that Simpson failed to present a prima
facie case of gender discrimination, we need not address the issue of pretext.
Under the familiar McDonnell Douglas burden-shifting framework for discrimination
claims, a Title VII plaintiff must first make out a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of sex
discrimination, a plaintiff must demonstrate that: “(1) she is a member of a protected group; (2)
she was subjected to an adverse employment decision; (3) she was qualified for the position; and
(4) . . . similarly situated non-protected employees were treated more favorably.” Jackson v.
VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016) (quoting Peltier v. United
States, 388 F.3d 984, 987 (6th Cir. 2004)).
To demonstrate that an individual is a “similarly situated” comparator, a plaintiff is
simply “required to prove that all of the relevant aspects of [her] employment situation were
‘nearly identical’ to those of [the male employees’] employment situation.” Ercegovich v.
Goodyear Tire & Rubber Co, 154 F.3d 344, 352 (6th Cir. 1998) (quoting Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). For example, “similarly
situated” in the disciplinary context means that, “the individuals with whom the plaintiff seeks to
compare [her] treatment must have dealt with the same supervisor, have been subject to the same

-5-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 6

No. 16-5381, Simpson v. Vanderbilt Univ.

standards and have 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.”
Id. (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). However, “the weight
to be given to each factor can vary depending upon the particular case.” Johnson v. Kroger Co.,
319 F.3d 858, 867 (6th Cir. 2003) (citing Ercegovich, 154 F.3d at 352). “Courts should not
assume . . . that the[se] specific factors . . . are relevant factors in cases arising under different
circumstances, but should make an independent determination as to the relevancy of a particular
aspect of the plaintiff’s employment status and that of the non-protected employee.” Ercegovich,
154 F.3d at 352.
III.
The parties do not dispute that Dr. Simpson satisfied the first three elements of her prima
facie case. Dr. Simpson argues, however, that a genuine dispute of material fact exists as to the
fourth element and whether the various male Vanderbilt employees she identified were
sufficiently similar to her to serve as comparators. On appeal, Dr. Simpson highlights Dr. Peter
Donofrio, a Neurologist who engaged in consulting via the “Best Doctors” website, as her best
example of a comparator. Contrary to Dr. Simpson’s assertion, Dr. Donofrio simply is not a
suitable comparator because of key differences between his and Dr. Simpson’s conduct. Thus,
as the district court determined, none of the other male Vanderbilt employees identified (who are
even less similar to Dr. Simpson than Dr. Donofrio) serves as a similarly situated comparator.
Dr. Donofrio served as an online consultant for the “Best Doctors” website, and disclosed
his consultant work to Vanderbilt on his 2011 Conflict of Interest form.

Following Dr.

Donofrio’s disclosure, Vanderbilt instructed him to cease his engagement with Best Doctors, and
Dr. Donofrio initially complied. Dr. Donofrio, however, resumed his work with Best Doctors in

-6-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 7

No. 16-5381, Simpson v. Vanderbilt Univ.

2012. During the course of discovery in this case, Vanderbilt learned that Dr. Donofrio had
resumed his work with Best Doctors and instituted disciplinary review against him. During the
course of his disciplinary review, Dr. Donofrio agreed to discontinue his work with Best Doctors
and to repay $122,000 in fees that he had received from that work.2 Dr. Donofrio was not
terminated for his conduct, but he received a reprimand in his faculty file and a two-year
probation.
While both Dr. Donofrio and Dr. Simpson were subject to Vanderbilt’s Conflict of
Interest Policy, the VMG By-Laws, and the VMG Participation Agreement, the differences
between Dr. Donofrio and Dr. Simpson in this instance are clear. Unlike Dr. Simpson, Dr.
Donofrio disclosed his activity on his Conflict of Interest form before Vanderbilt alerted him to
the potential conflict. Dr. Donofrio ceased his work with Best Doctors both times that he was
informed that his conduct violated Vanderbilt policy. In contrast to Dr. Simpson, Dr. Donofrio
cooperated with the review committee’s investigation and accepted responsibility for violating
Vanderbilt policy, agreeing to cease his work with Best Doctors and pay Vanderbilt all fees
earned from Best Doctors that Vanderbilt could reasonably claim. Additionally, Dr. Donofrio’s
work with an established consulting website is less egregious than Dr. Simpson’s creation,
management, and solicitation of former Vanderbilt consult clients for her own independent
business.
Dr. Simpson identifies additional purported comparators—male physicians who earned
income from consulting websites but were not similarly disciplined by Vanderbilt or who were

2

Dr. Simpson argues on appeal that Dr. Donofrio was treated more favorably because he was only required to pay
$122,000 of the fees earned through Best Doctors, rather than $136,267.00, the total amount of fees earned. Dr.
Simpson’s reliance on this $14,267 difference is fruitless. Vanderbilt did not require Dr. Donofrio to pay his full
earnings because $14,267 of these earnings was received prior to the six-year timeframe in which Vanderbilt
believed it could reasonably enforce payment through a breach of contract action. Vanderbilt’s actions do not show
unfair treatment, but rather recognition of what discipline it might reasonably impose on Dr. Donofrio.

-7-

Case: 16-5381

Document: 26-2

Filed: 05/22/2017

Page: 8

No. 16-5381, Simpson v. Vanderbilt Univ.

allowed to earn outside income as they transitioned to private practice or retirement (as Dr.
Simpson claims she asked to do)—who are even less similar. As to the male physicians who
engaged in online consulting, unlike Dr. Simpson, they ceased their consulting work when
directed to do so and paid Vanderbilt the fees earned from such work. Further, the male
physicians earning fees while transitioning to private practice or retirement received permission
to do so from the VMG Executive Committee; Dr. Simpson neither sought nor obtained such
approval.
Dr. Simpson argues, nonetheless, that she was treated less favorably than various male
employees who were disciplined because they were eligible to get back a significant portion of
remitted earnings but she was not given such an option. These payments, however, were
provided due to compensation plans applicable to various divisions of the School of Medicine
and VMG. As acknowledged during oral argument, however, the Pathology Division, rightly or
wrongly, did not have a similar compensation plan in place. Thus, the availability of some
reimbursement for certain employees but not others does not demonstrate that Dr. Simpson was
treated less favorably.

Instead, it further displays the significant differences between Dr.

Simpson and the male comparators that she identified.
IV.
Accordingly, we agree with the district court that no reasonable jury could find that
“similarly situated non-protected employees were treated more favorably” than Dr. Simpson, and
we AFFIRM the district court’s order granting summary judgment.

-8-