Kanungo v. University of Kentucky

Filing 33

MEMORANDUM OPINION & ORDER: Defendant's Motion for Summary Judgment 28 is GRANTED. Signed by Judge Joseph M. Hood on 2/18/2014.(CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

SHIBANI KANUNGO, M.D.,
Plaintiff,
v.

UNIVERSITY OF KENTUCKY,
Defendant.

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Action No. 5:12-CV-112-JMH
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)
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) MEMORANDUM OPINION AND ORDER
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This matter is before the Court on the Motion for Summary
Judgment [DE 28] filed by Defendant University of Kentucky (UK).
The matter has been fully briefed [DE 31, 32] and is ripe for
this Court’s review.
Dr. Shibani Kanungo alleges retaliation and discrimination
on the basis of her race and national origin in violation of
Title VII of the Civil Rights Act of 1964 and the Kentucky Civil
Rights Statute, KRS Chapter 344, and discrimination in violation
of 42 U.S.C. § 1981 on the basis of national origin and race. As
compensation for her loss, she seeks back pay, front pay, and
fringe benefits as well as damages for mental anguish, pain, and
suffering, embarrassment and humiliation, punitive damages and
attorney fees.

While Kanungo alleges a tapestry of events, she

fails to sufficiently allege a prima facie case with respect to
her retaliation claim and cannot meet her burden to show that

the

reasons

offered

for

her

termination

were

pretextual.

Accordingly, the Court finds that there is no genuine dispute of
material fact, and UK is awarded summary judgment as a matter of
law on all claims.
I. Factual Background
Dr. Kanungo was born and raised in Mumbai, India.

She

moved to Lexington, Kentucky in 2004 to complete her residency
following her graduation from medical school in Moscow, Russia.
Upon completion of her residency at UK in 2007, Dr. Kanungo was
hired as an Academic Clinician Scientist by UK.
her

education

clinical

and

research

responsibilities,

responsibilities

Screening/Pediatric

Metabolic

were
Clinic

in
(Clinic).

In addition to
her
the
Dr.

primary
Newborn
Charlton

Mabry founded the Clinic and continued to work there until 2011.
Although Dr. Mabry oversaw the Clinic and its staff, Dr. Kanungo
did not report to Dr. Mabry.

She was directly supervised by Dr.

Timothy Bricker, Chairperson for the Pediatric Department. The
parties agree that Dr. Kanungo and Dr. Mabry did not get along
well and that the clinic staff’s relationship with Dr. Kanungo
was also strained.

2

A. Statements by Dr. Mabry
Dr. Kanungo’s complaints revolve around statements made by
Dr. Mabry during a meeting1 in June 2009.

During the meeting,

Dr. Mabry allegedly told Dr. Kanungo, “this doctor from India is
scheming the system. There were medical students from Iran who
were

scheming

the

system

too.

My

wife

was

in

the

medical

school's admission, and we got rid of such people. U.K. gets rid
of people like [you]”. [DE 31-16 at p. 16, ID# 642.]2
B. Dr. Bricker’s Response
Within a week, Dr. Kanungo reported Dr. Mabry’s statements
to her supervisor, Dr. Bricker.

[DE 31-16 at p. 16, ID# 643.]

Dr. Kanungo testified that Dr. Bricker responded by pointing out
that Dr. Mabry was a professor emeritus and that she was simply
a junior faculty member.

[DE 31-16 at 18, ID# 644.]

1

She was

Dr. Kanungo believed that the meeting was about grant
funding, but Dr. Mabry stated that he had gathered Dr. Kanungo
and the department administrator, Rebecca Napier, to discuss Dr.
Kanungo’s request for new furniture for her office. [DE 28-5 at
18, ID# 179; DE 31-16 at p. 16, ID# 642.]
2
Throughout the briefing on this motion for summary
judgment, UK fails to construe the evidence and all reasonable
inferences in favor of Dr. Kanungo as required, but instead
invites the Court to engage in fact-finding by putting forth
UK’s version of the facts as more credible than those recited by
Dr. Kanungo.
See [DE 32 at 6] (disputing whether Dr. Bricker
made the statements as alleged by Dr. Kanungo).
For instance,
UK does not accept, for purposes of the motion, that Dr. Mabry
said that UK “gets rid of” people like Dr. Kanungo, as alleged.
[DE 28; DE 31]
Throughout this Court’s analysis, it has
construed all factual evidence and all reasonable inferences in
the light most favorable to Dr. Kanungo, as required. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
3

advised that she needed to be careful of her career. [DE 31-16
at 18, ID# 644.] Dr. Kanungo responded, “it's not about a junior
assistant professor or a professor emeritus. It is about an
inappropriate

statement

about

my

country

integrity, and I will not stand for it.”
644.]

of

origin

and

my

[DE 31-16 at 18, ID#

Dr. Kanungo did not file a report with the Office of

Institutional Equity at UK.

[DE 31-16 at 19, ID# 645.]

C. Dr. Kanungo’s suspension from the Clinic
Several weeks later, in July 2009, Dr. Mabry dismissed or
expelled Dr. Kanungo from her clinical duties because, Dr. Mabry
believed, she had upset Carol Reid, a long-time employee at the
Clinic. [DE 31-16 at 23, ID# 649.]

According to Dr. Mabry, Dr.

Kanungo continuously upset Ashley Daub, a nutritionist at the
clinic, to the point that Ms. Daub resigned. [DE 28-5 at 17, ID#
178.]

However, Dr. Mabry did not have the ability to fire, or

modify Dr. Kanungo’s job duties, so her hiatus from the Clinic
was brief.

When Dr. Kanungo’s supervisor, Dr. Bricker, returned

from his vacation two weeks later, Dr. Kanungo returned to her
full job duties at the Clinic. [DE 31-16 at 23, 27, ID# 649,
653.]

While

continued

to

Dr.

Kanungo’s

perform

other

job

duties

duties

at

were
the

restricted,
hospital

continued to be paid. [DE 31-16 at 26, ID# 652.]

4

and

she
she

D. Investigation
Shortly thereafter, on August 27, 2009, Dr. Bricker, Rania
Burke, the Pediatric Department Administrator, and John Sampson,
a representative from Human Resources, developed a Performance
Improvement Plan for Dr. Kanungo.

[DE 28-8 at 9, ID# 223; DE

28-9, ID# 241—42.] The plan addressed mandatory weekly meetings,
division

meetings,

and

Dr.

Kanungo’s

relationship

with

and

behavior towards others, particularly staff at the Clinic.

[DE

28-9.]
Patty

Bender,

the

Assistant

Vice

President

for

Equal

Opportunity, investigated Dr. Kanungo’s complaints in September
2009.

Bender

first

learned

of

Dr.

Kanungo’s

discrimination

complaints when John Sampson, the Human Resources representative
in the College of Medicine, contacted her on September 1, 2009.
[DE 28-18 at 9, ID# 371; DE 28-18 at 66, ID# 428.]

Later, on

September 29, 2009, Bender attended a weekly meeting of Clinic
staff and then interviewed Dr. Kanungo about her allegations.
[DE 28-18 at 14—15, ID# 376—77; DE 28-8 at 24—26, ID# 386—88.]
Bender

also

interviewed

Carol

Reid

and

Dr.

allegations [DE 28-18 at 31—32, ID# 393—94.]

Mabry

about

the

Dr. Mabry admitted

that he made most of the statements as reported by Dr. Kanungo,
but there was no mention of his statement that UK “gets rid” of
people like her.

[DE 28-18 at 31—32, ID# 393—94.]

Ultimately,

Bender concluded that Dr. Mabry was “trying his best to make her
5

successful” and that there were problems with the relationships
at the Clinic, but that Dr. Mabry’s statements and actions did
not

demonstrate

a

sufficiently

discriminatory atmosphere.

severe

or

pervasive

[DE 28-18 at 38—39, ID# 400—01.]

Dr. Kanungo was not informed of the results of the investigation
until

April

Kanungo’s
below.

2010

appeal

when
of

Dr.

her

Jay

2009

Perman

evaluation,

[DE 31-17 at 29, ID# 722.]

investigation

was

concluded,

was

Dr.

responding
which

is

to

Dr.

discussed

After learning that the

Kanungo

met

with

Bender

to

discuss the outcome of the investigation. [DE 31-17 at 31, ID#
724.]
the

Bender informed her of the results and made statements to

effect

that

if

Dr.

Kanungo

was

unhappy

she

should

go

elsewhere but that her discrimination complaint was otherwise
“water under the bridge.”

[DE 31-17 at 29, 31, ID# 722, 724.]

E. Performance Reviews
Following

implementation

of

the

Performance

Improvement

Plan and Bender’s investigation into Dr. Kanungo’s allegations,
Dr.

Kanungo’s

Review.
which

performance

was

analyzed

in

her

Second

Year

This Second Year Review was a standard evaluation in
the

University

promotion and tenure.

assesses

a

faculty’s

progress

toward

It differed from the annual reviews that

Dr. Kanungo had experienced in the past.

[DE 28-2 at 35, ID#

143.] Dr. Kanungo was required to submit documentation, such as
a revised curriculum vita, and other quantitative support for
6

her activities during the two years she had been appointed as
faculty.

[DE 28-2 at 34—35, ID# 142—43.]

While Dr. Kanungo

submitted the documentation as best she could, she felt that she
had not been clearly told what type of materials and records
that she should have been keeping over the two-year period to
provide for the review.

[DE 28-2 at 34—36, ID# 142—44.]

As part of this review, tenured faculty in the Pediatric
Department, Dr. Henrietta Bada and Dr. Jackson Smith, were asked
to evaluate Dr. Kanungo’s progress and provide written results
summarizing their findings.
247.]

[DE 28-10, ID# 243; DE 28-11, ID#

Their findings were then submitted to the Department of

Pediatrics Tenure Review Committee.
28-11, ID# 247.]

[See DE 28-10, ID# 243; DE

Drs. Bada and Smith found that, in order to

progress on her current track, Dr. Kanungo needed to demonstrate
more

focus

in

teaching,

research,

and

publications,

and,

particularly, more specialization in metabolic disorders in all
of those areas.

[DE 28-10, ID# 243; DE 28-11, ID# 247.]

Dr.

Bada also pointed out that Dr. Kanungo’s portfolio would be
strengthened

by

additional

documentation

of

her

clinical

services.

[DE 28-10, ID# 243; DE 28-11, ID# 247.] Specifically,

Dr.

stated

Bada

“involvement

and

that

Dr.

Kanungo

interaction

with

would
other

need

to

improve

faculty

members

requesting consultations,” show additional “effort on Pediatric
resident teaching,” publish in peer-reviewed publications, and
7

show that she has a reputation as being an authority in her
field to meet the criteria for tenure. [DE 28-10, ID# 243—45.]
In summary, Dr. Bada pointed out that Dr. Kanungo lacked “focus
of interests or activities. She needs to devote more effort to
the

clinical

services

and

teaching

in

the

Department

of

Pediatrics . . . she needs to show more involvement in the
department that awarded her the academic title.”

[DE 28-10,

ID# 245.]
The Second Year Review was completed on October 5, 2009.
[DE 28-12, ID# 250.]

Dr. Bricker authored the review, which

discussed the findings of Drs. Bada and Smith, as well as the
discussion and feedback of other tenured faculty on the review
committee.

[DE

28-13,

ID#

252.]

The

Second

Year

Review

summarized the concerns of faculty and also provided specific
suggestions

for

improvement

and

areas

of

research

publication focused on her field of specialization.
ID# 250.]

and

[DE 28-12,

Dr. Kanungo, displeased with the review, appealed the

Review to the Dean of the College of Medicine, Dr. Jay Perman,
on March 22, 2010.

[DE 28-13, ID# 252.]

Dr. Perman’s denial of

the appeal, dated April 28, 2010, concluded that her “review was
based

on

evaluations

of

[her]

dossier

and

progress

toward

promotion and tenure, without influence based on [her] prior
concerns about possible discrimination. . . .” [DE 28-13, ID#
252.]
8

In addition to the Second Year Review, Dr. Kanungo also had
an annual review for 2009, which was completed in February 2010.
[DE 28-4, ID# 159.]

Dr. Kanungo’s 2007 and 2008 annual reviews

had been highly positive with scores of 5 [DE 31-2, ID# 587; DE
31 at 5, ID# 552], however, the 2009 annual review was not as
positive.

[DE 28-4, ID# 159.]

In 2009, Dr. Kanungo received a

score

3,

good,

of

performance.

which

indicated

average

or

satisfactory

[DE 28-4, ID# 159.]

The annual review and Second Year Review covered the time
period in which Dr. Kanungo’s research study was terminated.
She was awarded a grant in 2008 from UK’s Children’s Miracle
Network to conduct research on MRSA3, specifically focusing on
clinical practices to eradicate MRSA by working with the whole
family of the infected patient, rather than simply the infected
patient.

[DE 31-17 at 4, ID# 697.]

However, funding for the

grant was not renewed for the study’s second year, which was
2009.

[DE 28-15 at 6, ID# 342.] Drs. Jeffrey Moscow and Eric

Smart, who oversaw the clinical research office responsible for
the grants, determined that the study was not feasible given
that Dr. Kanungo had not been able to recruit enough families to
participate in the first year of the study. [DE 28-15 at 5—6,
ID# 341—42.]

Although Dr. Kanungo disagreed with the decision

3

Methicillin-resistant Staphylococcus aureus (MRSA), Centers
for Disease Control, http://www.cdc.gov/mrsa/ (last visited Feb.
6, 2014).
9

to terminate the study, Dr. Kanungo does not argue that the
termination of the study was related to, or retaliation for, her
complaints about Dr. Mabry’s behavior.
706—07.]

[DE 31-17 at 13—14, ID#

In fact, while the formal memo closing the study was

sent in October 2009, Dr. Kanungo was first told to shut down
the

study

in

March

2009,

discriminatory statements.

before

Dr.

Mabry

made

the

alleged

[DE 28-17, ID# 361—62; DE 28-16, ID#

360.]
Following

the

2009

review

and

Second

Year

Review,

Dr.

Kanungo tried to improve by obtaining additional clinical hours,
participating in an emergency room training program, and writing
an editorial for a publication in her field.
25, 27, ID# 717—18, 720.]

[DE 31-17 at 24—

Nonetheless, her relationship with

Dr. Mabry continued to deteriorate and other deficiencies noted
in the Second Year Review and 2009 review continued.

[DE 31-17

at 27, ID# 720.]
F. Dr. Bricker’s recommendation for a terminal contract
In

June

2010,

one

year

after

Dr.

Mabry’s

initial

statements, Dr. Bricker advised Dr. Kanungo, via letter, that he
was considering giving her a terminal contract.
510.]

[DE 28-20, ID#

He asked for additional information from Dr. Kanungo,

including her updated curriculum vitae and materials relating to
her research, teaching and service. [Id.]

10

On September 14, 2010, Dr. Bricker sent a memorandum to
tenured

faculty

in

the

Department

of

Pediatrics

requesting

written judgments, pursuant to administrative regulations, on
whether to grant Dr. Kanungo a terminal reappointment, ending on
September 30, 2011.

[DE 28-22, ID# 512.]

Ten tenured members

of the Department provided their written concurrences with the
terminal

reappointment

decision.

[DE

28-22,

ID#

512—21.]

Subsequently, the Promotion and Tenure Committee considered the
recommendation of a terminal contract for Dr. Kanungo. [DE 2823, ID# 522.]
performance
faculty

That Committee reviewed Dr. Kanungo’s dossier,

reviews,

and,

and

written

ultimately,

letters

unanimously

from
agreed

the

tenured

with

the

recommendation to grant a terminal contract to Dr. Kanungo.
28-23, ID# 522.]

[DE

By letter, dated September 30, 2010, Dean

Wilson informed Dr. Kanungo that, based upon the recommendation
of

Dr.

Bricker,

“concurrence

of

the

tenured

faculty

of

the

Department of Pediatrics[,] and the advice of the College of
Medicine Appointment, Promotion and Tenure Committee,”

she had

been “granted a terminal reappointment to the faculty of UK’s
College

of

Medicine,

Department

expire on September 30, 2011.

of

Pediatrics”

which

would

[DE 28-24, ID# 523.]

G. Change in Dr. Kanungo’s Visa Status
Dr. Kanungo did not remain at UK until September 30, 2011,
however, because her visa status in the United States changed.
11

In 2008, UK hired Sheila Minihane and Charles Baesler, attorneys
with the law firm of Stoll, Keenan and Ogden, to assist with Dr.
Kanungo’s application for permanent immigration status. [DE 3118 at 18, ID# 796.]

In the spring of 2010, Baesler advised Dr.

Kanungo that Dr. Bricker was not responding to requests for
documentation to support an extension of her visa, which was set
to expire on September 30, 2010, causing Dr. Kanungo to become
concerned.

[DE

31-17

at

32,

ID#

725.]

She

hired

another

attorney in Colorado, Christopher Thomas, to assist her with her
visa status, without advising UK, Minihane, or Baesler. [DE 3117 at 42, ID# 735.]

Attorney Thomas filed the paperwork to

change Kanungo’s visa from an H1B visa, which allowed her to
stay in the country as long as she was employed, to an H4 visa,
which

would

permit

her

to

stay

in

the

United

States

as

a

dependent on her husband’s visa, but would not permit her to
work. [DE 31-17 at 44, ID# 737.]
that

Dr.

Wilson’s

Kanungo
letter

changed

her

awarding

the

The University did not learn
visa

status

terminal

until

contract

September 30, 2011. [DE 28-25, ID# 524.]

after
was

Dean

sent

on

In the meantime, UK

had been working with attorneys Minihane and Baesler to file the
necessary paperwork for a one year extension of Kanungo’s H1B
status

so

September

that
30,

she

2011.

would
[DE

be

eligible

28-26,

ID#

for

525.]

employment
UK

until

prepared

the

paperwork, as necessary, and it was submitted on September 30,
12

2010, which was the deadline.

[DE 28-26, ID# 525.]

Thus, there

was a “delay” in her paperwork, in that it was not submitted
earlier,

but

it

was

ultimately

submitted

by

the

deadline.

However, once UK learned that Kanungo’s status had become H4,
Minihane withdrew the application for an H1B extension. [DE 2825 at 524, ID# 524.]
On

October

4,

2010,

Dr.

Bricker

sent

Kanungo

a

letter

stating that in light of the change in her visa status, UK could
no

longer

legally

acknowledged

that

employ
the

her.

[DE
in

change

28-25,
her

ID#

visa

524.]

Kanungo

status

legally

prohibited her from working in the United States. [DE 28-19, ID#
474—75.]

Because the change in visa status became effective on

September 22, 2010, Dr. Kanungo’s last day was considered to be
September 21, 2010.

[DE 28-25, ID# 524.]

II. STANDARD OF REVIEW
Under Rule 56(a), summary judgment is proper “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.

judgment,

Civ.
the

P.

56(a).

factual

In

deciding

evidence

and

all

a

motion

for

reasonable

summary

inferences

must be construed in the light most favorable to the nonmoving
party.

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

(1986); Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004).

13

255

This Court’s function on a summary judgment motion is not
to weigh the evidence, but to decide whether there are genuine
issues of material fact for trial.

Anderson, 477 U.S. at 249;

Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380 (6th Cir.
2004).

A material fact is one that may affect the outcome of

the issue at trial, as determined by substantive law.
477 U.S. at 242.

Anderson,

A genuine dispute exists on a material fact

and, thus, summary judgment is improper if the evidence shows
“that a reasonable jury could return a verdict for the nonmoving
party.”
III.

Id. at 248; Summers, 368 F.3d at 885.

Analysis
A. Retaliation Claim
Plaintiff argues that UK took several adverse employment

actions

against

her,

but,

upon

close

examination

of

her

averments and the applicable law, she is unable to demonstrate a
prima facie case of retaliation because she has identified no
adverse actions as a matter of law.
To establish a prima facie case of unlawful retaliation
under Title VII, Dr. Kanungo must show that: “1) [s]he engaged
in activity that Title VII protects; 2) defendant knew that
[s]he

engaged

subsequently
plaintiff;

in
took

and

4)

this
an
a

protected
adverse

causal

activity;

employment

connection

3)

the

action

between

against
the

activity and the adverse employment action exists.”
14

defendant
the

protected
Abbott v.

Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003) (citations
omitted); see McClain v. NorthWest Cmty. Corr. Ctr. Judicial
Corr. Bd., 440 F.3d 320, 335 (6th Cir. 2006).

Dr. Kanungo

asserts that she engaged in a protected activity by reporting
Dr. Mabry’s statements to Dr. Bricker in June 2009, that the
protected

activity

was

known

to

UK,

and

that

UK

retaliated

against her for making the report by withholding UK’s request
for her H1B Visa extension in September 2011.

Id.

She also

argues that Dr. Mabry’s suspension or “dismissal” of her in July
2009 was an adverse employment action that further supports her
prima

facie

case.

The

Court

does

not

read

Dr.

Kanungo’s

response to argue that UK’s decision to award her a termination
contract constitutes an adverse employment action in the context
of her retaliation claim.

Plaintiff argues that she was forced

to change her visa status by UK’s delay and, as a result, it was
not voluntary.

[DE 31 at ID# 571—72.]

However, none of her

arguments address the decision to award Dr. Kanungo a terminal
contract.4

Additionally, Dr. Kanungo’s complaint indicates that

4

Even if made, this argument would falter at the causation
stage.
Even if Dr. Bricker’s statements that she should be
careful of her career could be construed as direct evidence of a
retaliatory animus, which this Court does not do, Dr. Bricker
did not make the decision to give her a terminal contract. He
made a recommendation, which was reviewed and unanimously agreed
upon by members of the Department of Pediatrics and the
Promotion and Tenure Committee and received final approval from
Dean Wilson.
15

her

negative

actions.

performance

However,

she

reviews

has

adverse

developed

not

were

this

employment
argument

in

response to the motion for summary judgment and there is no
evidence

that

Promotion

and

the

pediatric

Tenure

faculty

Committee

were

or

the

aware

members

of

Dr.

of

the

Kanungo’s

complaints of Dr. Mabry’s behavior.
Although disputed by UK, the Court agrees that Dr. Kanungo
engaged in a protected activity when she reported Dr. Mabry’s
statements to her supervisor.

“[A]n employee need not file a

formal EEOC complaint to engage in protected activity-rather ‘it
is the assertion of statutory rights’ that triggers protection
under

the

ADEA's

anti-retaliation

provision.”

Fox

v.

Eagle

Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007)(quoting EEOC v.
Romeo Cmty. Schs., 976 F.2d 985, 989 (6th Cir. 1992) (citing
Love

v.

1984)).

RE/MAX

of

Am.,

Inc.,

738

F.2d

383,

387

(10th

Cir.

Likewise, construing the facts in Plaintiff’s favor, UK

knew that she had engaged in protected activity through her
report of Dr. Mabry’s statements to Dr. Bricker.
The issue of whether Dr. Kanungo was subjected to adverse
employment

actions,

however,

is

where

her

case

falters.

The

Court turns first to Dr. Kanungo’s allegation that UK retaliated
against her by withholding her visa paperwork, which, allegedly,

16

resulted in Dr. Kanungo’s termination.5

The extension request,

if approved, would have allowed Plaintiff to continue to work at
UK for the next year, until September 2011, under her terminal
contract.
released

It appears that, regardless of whether Dr. Kanungo
her

termination.

claims

against

UK

or

not,

she

was

subject

to

The question was whether that termination occurred

in 2011 under a terminal contract, or whether that termination
became effective on September 30, 2010, because her H1B visa
status would expire and, thus, she would become ineligible for
continued

employment

by

UK.

Dr.

Kanungo,

however,

has

not

pointed to any authority of any type that would require UK to
continue to sponsor her H1B visa or to submit the paperwork in
advance of the September 30th deadline.

5

It is uncontroverted

As evidence of UK’s retaliatory animus, Dr. Kanungo argues
that UK threatened to withhold the visa paperwork “unless Dr.
Kanungo dropped her claims now presented before this court.” [DE
31 at 24.] Assuming that this evidence relating to settlement
negotiations is admissible under Fed. R. Evid. 408, as Plaintiff
argues, it is unpersuasive.
The language submitted by Dr.
Kanungo was taken from a proposed settlement agreement in which
release of any and all claims were contemplated.
Several
options that would have allowed for Dr. Kanungo’s visa extension
to be sponsored by UK until 2011 were explored by the parties as
part of the settlement negotiations. Importantly, UK did not
threaten to fire Dr. Kanungo or refuse to submit her paperwork
unless she released her claims. Instead, there were multiple
options available during the course of the settlement process,
several of which provided for UK to process the paperwork for
Dr. Kanungo’s visa extension without requiring the release of
her claims. Moreover, as discussed herein, Dr. Kanungo has not
demonstrated that the delay in processing, if it can be called
that, was an adverse action.
17

that UK did, in fact, present the paperwork for an extension of
Dr. Kanungo’s visa within the designated timeframe.
Dr. Kanungo’s argument is that the delay in the process
caused her termination by changing her visa status, but this is
a red herring.

Dr. Kanungo changed her visa status before UK’s

deadline to submit her paperwork for the extension.

Even if UK

had not timely submitted her paperwork, Dr. Kanungo would have
failed to demonstrate an adverse employment action.

Dr. Kanungo

has not shown that UK had any affirmative duty to continue to
sponsor her visa.
even

the

The delay of visa application processing, or

decision

constitute

an

to

not

adverse

sponsor

employment

an

H1B

action.

visa,

does

Collins-Pearcy

not
v.

Mediterranean Shipping Co., 698 F. Supp. 2d 730, 760 (S.D. Tex.
2010)

(holding

application,

that

even

refusal

where

it

to

will

sponsor
result

employee’s

in

termination

visa
of

employment, does not constitute an adverse employment action).
As in Collins-Pearcy, Plaintiff has not established that the
delay in submitting the paperwork “made it impossible” for her
to continue employment.

Id.

The brief suspension of Dr. Kanungo’s clinical duties is,
likewise,
action.

not

sufficient

to

qualify

as

a

material

adverse

The suspension is a material adverse employment action,

Dr. Kanungo argues, because such an action might “dissuade[] a
reasonable

worker

from

making
18

or

supporting

a

charge

of

discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211,
1219 (D.C. Cir.
two

weeks,

and

2006)).

The “suspension” lasted no more than

only

applied

and

duties

responsibilities

to
at

a
the

portion

of

hospital.

Dr.

Kanungo’s

There

is

no

evidence that the suspension negatively impacted her ability to
perform her other tasks and the suspension only lasted as long
as it did because her supervisor was unavailable to address the
situation.
actions.

Her pay was not suspended or reduced by Dr. Mabry’s
There

is

no

evidence

that

the

affected her subsequent performance reviews.

suspension

itself

Furthermore, it is

undisputed that Dr. Mabry did not have the authority to suspend
or fire Dr. Kanungo from the clinic.
Dr.

Kanungo

has

not

demonstrated

how

the

temporary

suspension from a portion of her duties materially changed the
terms and conditions of her employment, particularly when the
individual responsible had no authority to change the terms of
her employment. Michael v. Caterpillar Fin. Servs. Corp., 496
F.3d 584, 594 (6th Cir. 2007) (“A materially adverse change
might be indicated by a termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished
title,

a

material

loss

of

benefits,

significantly

diminished

material responsibilities, or other indices . . . .”).
Kanungo

must

show

that

the

temporary
19

suspension

was

Dr.
“more

disruptive than a mere inconvenience or an alteration of job
duties.”

Id.

While

perhaps

inconvenient,

her

temporary

suspension from the clinic falls short of a separate material
adverse action.6

Id.

Accordingly,

UK

is

entitled

to

summary

judgment

on

facie

case

Dr.

Kanungo’s claims of retaliation.
B. Discrimination
For

Dr.

Kanungo

discrimination,

she

to

demonstrate

a

show

she

must

that

prima
is

a

member

of

of
a

protected class, that she was subjected to an adverse employment
action, that she was qualified for the position, and that she
was replaced by someone outside the protected group or treated
differently than a similarly-situated, non-protected employee.
Wade v. Knoxville Utils. Bd., 259 F.3d 452, 461 (6th Cir. 2001)
(citing

St.

Mary’s

Honor

Ctr.

v.

Hicks,

509

U.S.

502,

506

(1993)); Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.
1992).

A

plaintiff

discrimination
intentional

may

either

by

discrimination

circumstantial

evidence

establish

a

presenting

prima

by

the

which

6

direct

defendant,
creates

facie

an

or

case

evidence
by

of
of

providing

inference

of

Additionally, the Court notes that there is no indication
that Dr. Mabry knew that Dr. Kanungo had reported his statements
to Dr. Bricker at the time that he “suspended” Dr. Kanungo from
the Clinic.
Thus, there is no evidence that he knew that she
had engaged in a protected activity, and, as a result, she
cannot meet that prong of her prima facie case.
20

discrimination. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.
2004) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348
(6th Cir. 1997)).

Plaintiff does not allege, and indeed, the

facts do not support, that Dr. Bricker, the other pediatric
department faculty members, or the members of the Promotion and
Tenure committee were motivated by any type of racial animus.
Only Dr. Mabry’s statements allegedly demonstrate racial animus,
but

Dr.

Mabry

was

not

involved

Plaintiff a termination contract.
as

a

supervisor

to,

or

in

the

decision

to

award

Because Dr. Mabry did not act

participate

in

the

determination

to

terminate, Dr. Kanungo, the direct evidence analysis does not
apply.

Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir.

2000); see also Rowan v. Lockheed Martin Energy Sys., Inc., 360
F.3d 544, 550 (6th Cir. 2004) (quoting Bush v. Dictaphone Corp.,
161 F.3d 363, 369 (6th Cir. 1998)) (“Statements by non-decision
makers,

or

statements

by

decision

makers

unrelated

to

the

decision process itself can not [sic] suffice to satisfy the
plaintiff’s burden of demonstrating animus.”).
The

parties

agree

that

Dr.

Kanungo

is

a

member

of

a

protected class and that she was qualified for the position she
held at UK.

Defendant contends, and this Court agrees for the

reasons set forth previously, that Dr. Kanungo’s suspension by
Dr. Mabry from her clinical duties in July 2009 does not qualify
as an adverse employment action.
21

Thus, the only adverse action of which Dr. Kanungo may
complain is her termination.

Based upon her arguments, her

termination consisted of two components.
award her a terminal contract.
minute

to

submit

the

Second, UK waited until the last

paperwork

Kanungo’s H1B visa status.

First, UK decided to

for

the

extension

of

Dr.

Dr. Kanungo blends these two actions

throughout her discussion, but they are separate.
The delay in the submission of Dr. Kanungo’s visa paperwork
did

not

cause

Dr.

Kanungo

to

be

ineligible

to

work

at

UK.

Despite her arguments that she was forced to apply for a change
in her status, it was Dr. Kanungo’s decision to change her visa
status, and it was the subsequent change of status that resulted
in her ineligibility for employment.
submitted

the

paperwork

required time frame.

for

her

The fact remains that UK

visa

extension

within

the

If she had not changed her visa status,

there is no evidence that she would have become ineligible for
employment.
action.

Thus, the alleged delay itself is not an adverse

Accordingly,

UK’s

decision

to

grant

Dr.

Kanungo

a

terminal contract is the only adverse action for purposes of
this analysis.
With respect to the last requirement for a prima facie
case, that she was replaced by someone outside the protected
group

or

protected

treated

differently

employee,

Dr.

than

Kanungo
22

a
has

similarly-situated
alleged

that

she

nonwas

replaced by a Caucasian employee, Dr. Carolyn Bay.

Dr. Kanungo

has not cited to any other evidence indicating that she was
treated differently than other similarly-situated employees.
Dr.

Bay,

Dr.

Kanungo

argues,

is

a

lesser

qualified,

Caucasian employee. Defendant argues, first, that Dr. Bay did
not replace Dr. Kanungo. According to Defendant, no replacement
was hired in that position.

Second, Defendant argues that, if

Dr. Bay could be considered as Dr. Kanungo’s replacement, Dr.
Bay was more qualified for the position. The parties have simply
not submitted much evidence on this issue, and the Court is
unpersuaded that it could decide this issue on the record before
it.

However, even assuming that Dr. Bay replaced Dr. Kanungo,

Dr. Kanungo cannot demonstrate that the decision to award her a
terminal

contract

was

pretextual.

Thus,

the

determination

of

whether Dr. Bay replaced Dr. Kanungo or is more qualified for
the position does not impact the Court’s analysis, and, thus,
the Court need not reach it.

Accordingly, UK is entitled to

summary judgment.

23

In the absence of direct evidence of discrimination, a
burden-shifting analysis applies,7 under which: 1) the plaintiff
must first set forth a prima facie case of discrimination; 2)
the

burden

articulate
actions;

of

production

some
and

then

legitimate,

3)

if

the

shifts

to

the

nondiscriminatory

employer

carries

employer

reason

this

to

for

its

burden,

the

plaintiff must then prove by a preponderance of the evidence
that

the

reasons

offered

by

the

employer

were

reasons, but were pretext for discrimination.
at

414—15.

Throughout

this

analysis,

persuasion lies with the plaintiff.

the

not

its

true

DiCarlo, 358 F.3d

ultimate

burden

of

Id.

UK has put forth evidence supporting its decision to award
Dr.

Kanungo

a

termination

contract,

including

several

evaluations of her performance and progress toward tenure, which
were conducted by her peers.

The termination decision itself

was recommended by her supervisor, Dr. Bricker, but was based on
unanimous agreement by two committees.
To show that UK’s explanation is pretext, Dr. Kanungo may
show “either (1) that the proffered reasons had no basis in

7

Discrimination claims under § 1981 and the Kentucky civil
rights statute, KRS 344.040, are analyzed under the same
evidentiary framework as Title VII claims.
Christian v. WalMart Stores, Inc., 252 F.3d 862, 868 (6th Cir. 2001),
supplemented on denial of reh’g, 266 F.3d 407 (6th Cir. 2001);
Talley v. Bravo Pitino Rest., 61 F.3d 1241, 1250 (6th Cir.
1995).
24

fact, (2) that the proffered reasons did not actually motivate
h[er] discharge, or (3) that they were insufficient to motivate
discharge.”

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d

1078, 1084 (6th Cir. 1994).

Plaintiff does not dwell on UK’s

proffered reasons for her termination at length but focuses,
instead, on imputing Dr. Mabry’s racial animus to UK through the
cat’s

paw

theory

of

liability.8

Staub

v.

Proctor

Hosp.,

__U.S.__, 131 S.Ct. 1186, 1194 (2011).
The
seemingly

cat's

paw

unbiased

“theory

involves

decisionmaker

makes

circumstances
an

adverse

where

a

employment

decision that was in part motivated by a biased subordinate.”
Davis v. Omni-Care, Inc., 482 F. App’x 102, 109 (6th Cir. 2012)
(citing Cobbins v. Tenn. Dep't of Transp., 566 F.3d 582, 586 n.5
(6th Cir. 2009)). “[W]hen a plaintiff challenges his termination
as motivated by a supervisor's discriminatory animus, he must
offer

evidence

decisionmaker's

of

a

decision

‘causal
to

nexus’

terminate

supervisor's discriminatory animus.”
8

between
the

the

plaintiff

ultimate
and

the

Madden v. Chattanooga City

The Sixth Circuit has addressed the cat’s paw theory in
both direct and circumstantial evidence contexts.
Johnson v.
Metro. Gov’t of Nashville & Davidson Cnty. of Tenn., 502 F.
App’x 523, 535 n.4 (6th Cir.
2012) (“The ‘rubber-stamp’ or
‘cat's paw’ theory of liability . . . is more appropriately
dealt with in circumstantial evidence review.”); Romans v. Mich.
Dept. of Human Servs., 668 F.3d 826, 836—37 (6th Cir. 2012)
(Finding that plaintiff could not show direct evidence through
the
cat’s
paw
theory).
Dr.
Kanungo
has
set
forth
a
circumstantial evidence analysis, so the Court has used that
structure here.
25

Wide Serv. Dept., 549 F.3d 666, 677 (6th Cir. 2008).

Plaintiff

must show that “[b]y relying on this discriminatory information
flow, the ultimate decisionmakers acted as the conduit of [the
supervisor’s]

prejudice—his

quotation marks omitted).
the

context

Employment
Supreme

of

and

Court

a

case

cat’s

Id.

at

678

(internal

Addressing the cat’s paw theory in
brought

Reemployment
recently

paw.”

Act

held

under

the

(USERRA),

that

“if

a

United

the

Services

United

States

[non-decsionmaking]

supervisor performs an act motivated by [discriminatory] animus
that

is

intended

by

the

supervisor

to

cause

an

adverse

employment action, and if that act is proximate cause of the
ultimate

employment

action,

then

the

employer

is

liable.”

Staub, 131 S.Ct. at 1194; see Davis 482 F. App’x at 109.
Plaintiff’s cat paw argument is unpersuasive.

There is no

evidence that any action that Dr. Mabry took formed the basis
for

Dr.

Kanungo’s

termination.

reviews

and

reviews

of

various

deficiencies

in

publication
performance

and
was

her

progress

performance,

educational
also

Dr.

Kanungo’s
toward

tenure

including

her

research,

Her

clinical

performances.

criticized,

performance

but

those

alleged

complaints

are

unrelated to Dr. Mabry, or the difficulties that Dr. Kanungo had
in her relationship with Dr. Mabry and his staff.
Dr. Kanungo does not point to any action that Dr. Mabry
took that formed the basis for UK’s adverse action. Unlike other
26

situations in which the cat’s paw theory has been applied, Dr.
Mabry did not take any action or discipline Dr. Kanungo in a
manner

that

termination.

was

later

relied

upon

as

grounds

for

her

See Chattman v. Toho Tenax Am., Inc., 686 F.3d 339

(6th Cir. 2012) (applying the cat’s paw theory where the Human
Resources

Director,

misinformed

various

who

was

members

shown

to

upper

management

of

have

racial

bias,

resulting

in

denial of a promotion); Staub, 131 S. Ct. 1186 (two supervisors
who

were

hostile

to

plaintiff’s

military

service

allegedly

fabricated plaintiff’s misconduct which resulted in progressive
disciplinary actions and, ultimately, plaintiff’s termination).
Dr. Kanungo has not demonstrated a causal nexus between Dr.
Mabry’s alleged discriminatory animus and her termination. Thus,
the cat’s paw theory does not apply.
Dr. Kanungo, who bears the burden of demonstrating UK’s
intent to discriminate, has not come forward with any evidence
that UK’s proffered reasons for her termination had no basis in
fact,

did

insufficient

not
to

actually
motivate

motivate
her

her

discharge,

termination.

Sybrandt

or
v.

were
Home

Depot, U.S.A., Inc., 560 F.3d 553, 558 (6th Cir. 2009) (quoting
Wright v. Murray Guard, Inc., 455 F.3d 702, 706—07 (6th Cir.
2006)).
were

Dr. Kanungo does not argue that UK’s proffered reasons

false

challenges

or

insufficient

whether

those

to

motivate

reasons
27

her

actually

termination,
motivated

but
her

discharge.

However, Dr. Kanungo has not cited any evidence on

which a reasonable fact finder could rely to determine that UK’s
proffered

reasons

decisionmakers

did

when

not

they

actually

granted

motivate

her

terminal

the

relevant

contract.

Dr.

Kanungo does not cite to any direct or circumstantial evidence
of discrimination outside of Dr. Mabry’s statements.

Evidence

that Dr. Kanungo may have been replaced by someone outside of
the

protected

class,

without

more,

is

insufficient

to

demonstrate pretext. Cicero v. Borg-Warner Automotive, Inc., 280
F.3d

579,

589

exclusively

on

(6th
his

Cir.

2002)

(“[Plaintiff]

prima

facie

evidence,

may

but

not

rely

instead

must

introduce some further evidence of discrimination.”).
judgment

is

proper

where

plaintiff

has

failed

to

Summary
create

a

material issue of fact as to whether the proffered reasons were
pretext

for

Prods.,

530

discrimination.
U.S.

133,

148

Reeves
(2000)

v.

Sanderson

(holding

that

Plumbing

employer

is

entitled to judgment as a matter of law where “plaintiff created
only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.”)
Accordingly,

UK

is

entitled

Kanungo’s discrimination claims.

28

to

summary

judgment

on

Dr.

IV. Conclusion
Accordingly,

for

the

reasons

set

forth

herein,

IT

IS

ORDERED that Defendant’s Motion for Summary Judgment [DE 28] is
GRANTED.
This the 18th day of February, 2014.

29