Dalia Rashdan (Mohamed) v. Marc Geissberger, et al

Filing

FILED OPINION (M. MARGARET MCKEOWN, RICHARD R. CLIFTON and DAVID A. EZRA) AFFIRMED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [9218738]

Case: 12-16305

08/26/2014

ID: 9218738

DktEntry: 30-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DALIA RASHDAN (MOHAMED),
Plaintiff-Appellant,
v.

No. 12-16305
D.C. No.
4:10-cv-00634SBA

MARC GEISSBERGER; EUGENE
LABARRE; AI B. STREACKER;
FOROUD HAKIM; NADER A.
NADERSHAHI; PATRICK J. FERRILLO,
JR.; LEIGH ANDERSON; JEFF MILES;
DANIEL J. BENDER; LOLA GIUSTI;
CRAIG YARBOROUGH; DOES 1–50;
UNIVERSITY OF THE PACIFIC,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted August 15, 2014*
San Francisco, California
Filed August 26, 2014

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Page: 1 of 9

Case: 12-16305

2

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER
Before: M. Margaret McKeown and Richard R. Clifton,
Circuit Judges, and David Alan Ezra, District Judge.**
Opinion by Judge McKeown

SUMMARY***

Employment Discrimination
The panel affirmed the district court’s summary judgment
on a claim of national origin discrimination in violation of
Title VI of the Civil Rights Act of 1964.
Joining other circuits, the panel held that the McDonnell
Douglas framework for disparate treatment claims under Title
VII applied to the Title VI claim. Under this analysis, the
plaintiff did not establish a prima facie case of national origin
discrimination.

**

The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 9

Case: 12-16305

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

Page: 3 of 9

3

COUNSEL
Jay T. Jambeck and Mandy G. Leigh, Leigh Law Group, San
Francisco, California, for Plaintiff-Appellant.
Michael J. Vartain and Kathryn J. Burke, Vartain Law Group,
San Francisco, California, for Defendants-Appellees.

OPINION
McKEOWN, Circuit Judge:
Dalia Rashdan (Mohamed) was enrolled in a dentistry
program for international students at the University of the
Pacific. She appeals from the district court’s grant of
summary judgment in favor of the University and several
instructors and administrators on her claim of national origin
discrimination in violation of Title VI of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000d et seq. We join our sister
circuits in holding that the McDonnell Douglas framework
for disparate treatment claims under Title VII applies to
Rashdan’s Title VI claim. Under this analysis, Rashdan’s
claim fails because she did not establish a prima facie case of
national origin discrimination.
BACKGROUND AND PROCEDURAL HISTORY
Rashdan, an Egyptian dentist, was enrolled in a two-year
International Dental Studies Program to credential her for
practice in the United States. Three months before
graduation, Rashdan followed her clinical supervisor’s
instructions to seat a crown, but the procedure was
unsuccessful. After the head of the restorative dentistry

Case: 12-16305

4

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

program, Dr. Geissberger, heard from a colleague about the
failed crown seating, he told Rashdan—within earshot of
other faculty, students, and patients—that her “clinical work
on the patient . . . was ‘Third World Dentistry.’”
Offended by the remark, Rashdan confronted Geissberger
in his office, explaining that the crown-seating procedure was
her clinical supervisor’s idea and that she was simply
carrying it out as his student. Geissberger told her that the
procedure was “nowhere in the syllabus.” Rashdan again
explained that her clinical supervisor had proposed the
procedure and that she “did not feel that it was [her] place to
question the direction of a respected faculty member.”
Geissberger responded: “It’s still Third World Dentistry.”
Rashdan replied: “I am offended by that remark.”
Geissberger then asked her where she was from and, when
she said Egypt, he stated that Egypt was “not a Third World
country.” Rashdan retorted: “Yes it is.” Geissberger insisted:
“No it’s not and it’s still Third World Dentistry.” Rashdan
ended the conversation by saying: “Yes it is. And in any case
I learned this Third World Dentistry in your First World
clinic.”
Shortly after her exchange with Geissberger, another
supervisor, Dr. Hakim, greeted Rashdan by saying, “What’s
up, TW?” Rashdan looked puzzled, so Hakim clarified: “Oh
come on! Don’t you get it? . . . Third World?” A few
months later, Rashdan sent Hakim an effusive thank you
e-mail for assisting her with a procedure, which she signed
“Dalia Rashdan Mohamed a.k.a. T.W.”
Four days before graduation, Rashdan was informed that
despite her more than adequate performance in course work,
she was not recommended for graduation and that she would

Page: 4 of 9

Case: 12-16305

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

Page: 5 of 9

5

have to remediate in restorative dentistry and removable
prosthodontics. Rashdan entered an additional quarter of
clinical work at no extra cost during which her performance
did not improve; evaluators stated that she was actively
harming patients and her performance was “clinically
unacceptable.” Geissberger and other faculty exchanged
emails discussing her poor performance, attempting to come
up with a “strategy” to ensure that Rashdan would not
practice dentistry in the United States until she could do so
safely.
The faculty settled on a recommendation that Rashdan
pursue an additional quarter of remedial work on models,
after which she could return to clinical work on patients.
Geissberger informed Rashdan of the recommendation and
called a meeting to discuss it with her, but the day before the
meeting, Rashdan submitted a request for absence. The
meeting went on without Rashdan, and the faculty sent her a
proposed remediation plan, echoing the earlier
recommendation and communicating the faculty’s hope that
Rashdan would “consider returning to school at [her] earliest
convenience to fulfill the requirements of the [remediation]
plan and earn [her] degree.” When Rashdan did not respond,
a committee accepted the plan on her behalf, and she was
notified of a right of appeal. Rather than appeal the plan or
begin the recommended remediation, Rashdan took a leave of
absence, did not return to school, and filed this lawsuit.
ANALYSIS
I. Title VI Framework
Title VI provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be

Case: 12-16305

6

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

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.
Similarly, Title VII prohibits an employer from
“discriminat[ing] against any individual . . . because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). In McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), the Supreme Court “set forth the
basic allocation of burdens and order of presentation of proof
in a Title VII case alleging discriminatory treatment.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53
(1981).
First, the plaintiff has the burden of proving
by the preponderance of the evidence a prima
facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory
reason for the employee’s rejection. Third,
should the defendant carry this burden, the
plaintiff must then have an opportunity to
prove by a preponderance of the evidence that
the legitimate reasons offered by the
defendant were not its true reasons, but were
a pretext for discrimination.
Id. (internal citations and quotation marks omitted).
Although we have yet to consider whether McDonnell
Douglas applies to Title VI disparate treatment claims, we
have “look[ed] to” Title VII doctrines to analyze other Title
VI claims. See, e.g., Darensburg v. Metro. Transp. Comm’n,
636 F.3d 511, 519 (9th Cir. 2011) (disparate impact). We

Page: 6 of 9

Case: 12-16305

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

Page: 7 of 9

7

now join the other circuits in concluding that McDonnell
Douglas also applies to Title VI disparate treatment claims.
See, e.g., Gazarov ex rel. Gazarov v. Diocese of Erie, 80 F.
App’x 202, 203–05 (3d Cir. 2003) (opinion); Bryant v. Indep.
Sch. Dist. No. I-38 of Garvin Cnty., Okla., 334 F.3d 928,
929–30 (10th Cir. 2003); Fuller v. Rayburn, 161 F.3d 516,
518 (8th Cir. 1998); Ga. State Conference of Branches of
NAACP v. State of Ga., 775 F.2d 1403, 1417 (11th Cir. 1985),
abrogated on other grounds by Lee v. Etowah Cnty. Bd. of
Educ., 963 F.2d 1416, 1419 n.3 (11th Cir. 1992).
II. Applying McDonnell Douglas to Rashdan’s Title VI
Claim
Although “[t]he requisite degree of proof necessary to
establish a prima facie case for [a] Title VII . . . claim[] on
summary judgment is minimal and does not even need to rise
to the level of a preponderance of the evidence,” Rashdan’s
claim fails. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir. 1994). On de novo review, the undisputed facts viewed
in the light most favorable to Rashdan do not “give[] rise to
an inference of unlawful discrimination.” See Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1219–20 (9th Cir. 1998)
(internal quotation marks and alteration omitted).
Evidence of discriminatory motive can be direct or
indirect. Burdine, 450 U.S. at 256 (citing McDonnell
Douglas, 411 U.S. at 804–05). “Direct evidence is evidence
which, if believed, proves the fact [of discriminatory animus]
without inference or presumption.” Vasquez v. Cnty. of L.A.,
349 F.3d 634, 640 (9th Cir. 2003) (alteration in original)
(internal quotation marks omitted). Rashdan’s direct
evidence of discriminatory intent—Geissberger’s comment
that her work was “Third World dentistry,” Hakim’s

Case: 12-16305

8

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

reference to her as “TW,” and the discussion of a “strategy”
about how to deal with her subpar clinical performance—do
not support a claim of discriminatory animus. To be sure, the
“Third World” reference was an offensive, insensitive, and
politically incorrect jab; it was directed, however, at the
procedure, not Rashdan’s national origin. See Stallcop v.
Kaiser Found. Hosps., 820 F.2d 1044, 1051 (9th Cir. 1987)
(“[D]erogatory ethnic statements, unless excessive and
opprobrious, are insufficient to establish a case of national
origin discrimination.”). In context, construing all inferences
in favor of Rashdan, Geissberger’s statement about “Third
World Dentistry,” referred to the procedure that Rashdan’s
supervisor ordered. Rashdan acknowledges that no one
affiliated with the University made any disparaging comment
about Egypt or its people, customs, culture, religious
practices, or traditions, and she referred to herself as “TW” in
an e-mail to Hakim. Rashdan also offers no link between
statements about a “strategy” to address her performance and
any comments about the “Third World.”
Rashdan’s indirect evidence of allegedly similarly
situated students who were permitted to graduate also fails to
establish a prima facie case of discriminatory animus.
Rashdan offers grades, clinical competency ratings, and
faculty comments for certain students whom she claims
performed as well or worse than she did, but Rashdan offers
no context to evaluate this data. A laundry list of scores
proves nothing in the absence of context or explanation. See
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 274 (7th
Cir. 2004) (“[The plaintiff] has given this court no concrete
way to measure the candidates she alleges were unlawfully
promoted over her and instead has taken a ‘kitchen sink’
approach to her appeal by listing every white male employee
promoted to a rank higher than full-time supervisor without

Page: 8 of 9

Case: 12-16305

08/26/2014

ID: 9218738

DktEntry: 30-1

RASHDAN V. GEISSBERGER

Page: 9 of 9

9

identifying any coherent method of analysis.”). Simply
offering up clinical scores of students who graduated and
students sent for their own tailor-made remediation programs
is insufficient to meet a minimum threshold of identifying
students who are similarly situated to Rashdan. These
comparators miss the mark of establishing anything, let alone
a category of similarly situated individuals.
Rashdan’s direct and indirect evidence of discriminatory
motive falls short of establishing a prima facie case.1
AFFIRMED.

1
We also note that even if Rashdan had established a prima facie case
of discrimination, her claim nonetheless fails because she did not rebut the
legitimate, non-discriminatory justification for the additional remediation,
namely that she was performing very poorly in clinical restorative
dentistry. See Vasquez, 349 F.3d at 641–42.