Mire v. LSU Health Sciences Center

Filing 77

ORDER & REASONS granting 65 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 3/1/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KRISTINA MIRE, MD

CIVIL ACTION

VERSUS

NO. 15-6965

BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND
MECHANICAL COLLEGE, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Defendants Dr. Bonnie C. Desselle and Dr. Ricardo Sorenson move for
summary judgment on plaintiff Kristina Mire’s claim for reinstatement into
LSU Health Sciences Center’s pediatric residency program. In support,
Desselle and Sorenson argue that Mire has failed to show that either
defendant has the authority to reinstate Mire into LSU Health’s residency
program. Because the Court finds that Mire has failed to meet her burden to
show that she has standing to pursue her claim against these defendants, the
Court grants summary judgment.

I.

BACKGROUND
In her Second Amended Complaint, Kristina Mire, MD alleges that the

LSU Health Sciences Center (LSU Health), 1 Dr. Bonnie Desselle, and Dr.
Ricardo Sorenson discriminated against her based on her disability, and that
this conduct violated Titles I and II of the Americans with Disabilities Act of
1990 (ADA) and the ADA Amendments Act of 2008 (ADAAA). Desselle and
Sorenson are sued in their official capacities as Program Director and Chair
of LSU Health’s Department of Pediatrics.2 According to the complaint, Mire
enrolled as a medical resident at LSU Health in July 2006. 3 Shortly after
enrolling, Mire sought treatment from a psychiatrist for Attention Deficit
Hyperactivity Disorder.4 She also developed insomnia, which impaired her
effectiveness as a resident. 5

By December 2006, Mire’s supervisors

described Mire as inefficient and prone to oversleeping and tardiness.6 Mire

The Court has previously found that the LSU Board, rather than LSU
Health, is the proper defendant, R. Doc. 44 at 7-9, and the Board has been
substituted as defendant in this case.
2
R. Doc. 27 at 2.
3
Id. at 1.
4
Id.
5
Id. at 3.
6
Id.
2
1

was informed of these concerns in January 2007. 7

In response, Mire

revealed her insomnia to her program director at LSU Health. 8
By March 2007, Mire’s psychiatrist suspected that Mire had an
Adjustment Disorder and prescribed antidepressant and antipsychotic
medications. 9 Mire, however, reacted negatively to the medications and
soon stopped taking them. 10 In June 2007, Mire received more unfavorable
performance reviews.11 Mire disclosed her Adjustment Disorder to the Chief
Resident at LSU Health in July 2007.12 Following this disclosure, Mire was
placed in a disciplinary program designed to remediate deficiencies in her
performance.13 As part of the disciplinary program, Mire was reevaluated by
her psychiatrist. 14 Following this evaluation, Mire was diagnosed with Major
Depressive Disorder and was once again prescribed medication. 15 Although
Mire continued to respond negatively to her medication, Mire’s program
director at LSU Health told Mire that she was required under the disciplinary

7
8
9
10
11
12
13
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15

Id.
Id.
Id. at 4-5.
Id. at 5.
Id. at 6.
Id.
Id.
Id. at 7.
Id.
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program to take all her prescribed medication. 16 In response, Mire requested
and received permission to visit another psychiatrist. 17

The second

psychiatrist confirmed Mire’s diagnosis of Major Depressive Disorder,
adjusted her medication, and recommended a leave of absence. 18 Following
this diagnosis, Mire was placed on a modified schedule until November
2007, when she was placed on a more rigorous “in-patient call schedule.”19
From January to April 2008, Mire took a leave of absence from the
residency program. 20 When she returned, LSU Health did not assign her
duties gradually, but instead placed Mire on “full on-call duty.”21 Following
her return, Mire once again had trouble performing her duties, and she was
placed on probation. 22 Mire appealed LSU Health’s decision to place her on
probation to an internal review body.23 This appeal was denied on June 19,
2008, and Mire was suspended from the residency program in August
2008. 24 LSU Health cited several reasons for the suspension, including
Mire’s alleged violation of the terms of her probation and unprofessional

16
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18
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20
21
22
23
24

Id.
Id.
Id.
Id.
Id. at 8.
Id.
Id.
Id.
Id. at 10.
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behavior.25 Following a competency hearing and an administrative appeal
process, Mire was terminated by LSU Health. 26 The Dean of the LSU Health
Sciences Center School of Medicine “accepted and confirmed” Mire’s
termination on March 21, 2009. 27
Mire filed her initial complaint in this action, alleging violations of the
Americans with Disabilities Act, on December 21, 2015. 28 Ten days later,
Mire amended her complaint. 29

On March 30, 2016, after being granted

leave to amend her complaint once again, 30 Mire filed a Second Amended
Complaint. 31 In her Second Amended Complaint, Mire (1) added Desselle
and Sorenson as defendants in their official capacities, (2) clarified that she
was asserting claims under both Title I and Title II of the ADA, and (3) made
modest changes to her factual allegations. 32
On September 12, 2016, the Court dismissed Mire’s claims against the
LSU Board arising under Title I of the ADA and ADAAA on grounds of

Id.
Id.
27
Id.
28
R. Doc. 1.
29
R. Doc. 7.
30
R. Doc.
31
R. Doc. 27
32
Id. Mire’s original and First Amended complaints alleged violations of
the ADA and ADAAA generally, but did not specify any Titles.
5
25

26

sovereign immunity.33 On February 17, 2017 the Court dismissed Mire’s
remaining Title II claims against the LSU Board, but found that Mire had
stated Title I claims for prospective injunctive relief against Desselle and
Sorenson.34 Defendants now move for summary judgment on these
remaining claims. 35 In support, Desselle and Sorenson argue that Mire has
failed to meet her burden to show either defendant has the authority to
reinstate Mire into LSU Health’s residency program.36

In addition,

defendants argue that Mire has failed to show that she meets American
Board of Pediatrics and National Resident Matching Program requirements
for reinstatement.37 The Court finds that Desselle and Sorenson’s authority
to reinstate Mire implicates Mire’s standing to bring this suit, and therefore
the Court’s subject matter jurisdiction. The Court therefore begins its inquiry
by considering its own jurisdiction.

II.

LEGAL STANDARD
Before the Court may determine whether Desselle and Sorenson are

proper defendants under Ex parte Young, it must first determine whether it

33
34
35
36
37

R. Doc. 44.
R. Doc. 76.
R. Doc. 65.
Id.
Id.
6

has subject matter jurisdiction over this case. In re Canion, 196 F.3d 579,
584 (5th Cir. 1999) (“Federal courts must be assured of their subject matter
jurisdiction at all times.”); In re Bass, 171 F.3d 1016, 1021 (5th Cir.1999)
(“Federal courts . . . may question [jurisdiction] sua sponte at any stage of
judicial proceedings”).
“[T]he core component of standing is an essential and unchanging part
of the case-or-controversy requirement of Article III.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). Standing ensures that a plaintiff has
“‘alleged such a personal stake in the outcome of the controversy’ as to
warrant his invocation of federal-court jurisdiction and to justify exercise of
the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490,
498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The party
invoking federal jurisdiction bears the burden of establishing three elements.
Lujan, 504 U.S at 561. “First, the plaintiff must have suffered an ‘injury in
fact’—an invasion of a legally protected interest which is (a) concrete and
particularized and (b) ‘actual or imminent, not conjectural or hypothetical.’”
Id. at 560. Second, “there must be a causal connection between the injury
and the conduct complained of—the injury has to be ‘fairly trace[able] to the
challenged action of the defendant and not . . . th[e] result [of] the
independent action of some third party not before the court.” Id. Third, it
7

must be “likely,” as opposed to merely “speculative,” that the injury will be
“redressed by a favorable decision.” Id. at 561.
At the summary judgment stage “the plaintiffs’ burden on standing is
only to raise an issue of material fact.” Croft v. Governor of Texas, 562 F.3d
735, 746 (5th Cir. 2009). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in the record but
refrain[s] from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395,
398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the
nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “No genuine dispute of fact exists if the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
8

1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the existence of a
genuine dispute of material fact, or “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).

9

III. DISCUSSION
To meet the “redressability” prong of the standing inquiry, a plaintiff
seeking injunctive relief must show that the defendant has authority to
redress the plaintiff’s injury. McCreary v. Richardson, 738 F.3d 651, 655
(5th Cir. 2013) (“[Plaintiff] does not have standing to pursue injunctive relief
because [defendant] is without authority to redress his injuries.”); see also
Volk v. Gonzales, 207 F.3d 657, 657 (5th Cir. 2000) (vacating award of
injunctive relief where “[n]either defendant in [the] action had the power to
effect the court’s directives”). Desselle and Sorenson argue that they are not
proper Ex parte Young defendants because they do not have the authority to
reinstate Mire to the LSU Health residency program. Because defendants
dispute their own authority to redress Mire’s injury, their argument
implicitly calls into question Mire’s standing to bring this case, and, with it,
the Court’s subject matter jurisdiction.

Accordingly, the Court must

determine whether Mire has raised an issue of material fact as to whether
Desselle and Sorenson have the authority to order her reinstatement. The
Court considers each defendant in turn.

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A. Dr. Sorenson
Mire sues Sorenson “in his official capacity as Chair, LSUHSC
Department of Pediatrics.”38 Mire concedes that Sorenson no longer holds
that position, but maintains that Sorenson’s successor as Chair should be
automatically substituted under Federal Rule of Civil Procedure 25(d).
Rule 25(d) provides that “[a]n action does not abate when a public
officer who is a party in an official capacity dies, resigns, or otherwise ceases
to hold office while the action is pending.” Fed. R. Civ. P. 25(d). Rather,
“[t]he officer’s successor is automatically substituted as a party.”

Id.

Therefore, if Sorenson was the Chair of the Department of Pediatrics at the
time Mire sued, the Court would immediately substitute the new Chair, and
then ask whether that person could reinstate Mire. See Jones v. Texas
Juvenile Justice Dep’t, 646 F. App’x 374, 375 n.1 (5th Cir. 2016).
Sorenson, however, was not the Chair of the Department of Pediatrics
when Mire filed her suit. The unrefuted evidence before the Court suggests
that Sorenson left the chairmanship in July 2015,39 and this suit was filed in
December 2015. Rule 25(d), by its own terms, applies when a party “ceases
to hold office while the action is pending.” Fed. R. Civ. P. 25(d). It makes

38
39

R. Doc. 27 at 1.
R. Doc. 65-2 at 1.
11

no provision for when a plaintiff sues a former official, in his formerly-official
capacity. Mire cites no other authority for the proposition that the Court will
automatically correct a plaintiff’s pleading mistakes by substituting the
proper official.

Accordingly, the question before the Court is whether

Sorenson, in his actual capacity as a Clinical Professor, has the authority to
reinstate Mire.
In his affidavit, Sorenson states that, as a Clinical Professor, he “does
not have the authority or ability to reinstate any present or former resident
in the Pediatric Residency program at LSU Health Sciences Center-New
Orleans.”40 Mire provides no evidence tending to contradict this assertion.
Accordingly, the Court finds that Mire has failed to meet her burden to show
that Sorenson has the authority to redress her injury, and Mire’s claims
against Sorenson therefore fail.
B. Dr. Desselle
Desselle is a closer case than Sorenson. Unlike Sorenson, Desselle
never affirmatively states in her affidavit that she lacks the general authority
to reinstate previously dismissed residents. 41 Instead, Sorenson focuses on
the American Pediatric Board’s requirement that residents who interrupt

40
41

Id. at 2.
R. Doc. 65-1 at 1-3.
12

their training for more than 2 years must “petition the ABP to determine
whether credit may be awarded for prior training.”42 Sorenson also asserts
that before LSU Health could offer Mire her old spot, Mire would have to
reapply through the National Residency Matching Program.”43
Mire seizes on Desselle’s failure to deny a general authority to reinstate
residents as evidence that Desselle does, in fact, have such authority.44 But
this arguments misplaces Mire’s burden. As noted, Desselle may satisfy her
burden on this point by merely pointing out that the evidence in the record
is insufficient with respect to an essential element of Mire’s claim. See
Celotex, 477 U.S. at 325. Having done so, the burden shifts to Mire to point
to specific admissible evidence showing that Desselle has the authority to
grant Mire’s requested relief. See id. at 324. Mire has failed to meet this
burden.
The only relevant evidence that Mire attaches to her opposition is a six
page excerpt of Desselle’s deposition in this case. 45 In the excerpt, Desselle
discusses her role in evaluating pediatric residents, but says nothing
regarding her authority to reinstate terminated residents.46

42
43
44
45
46

Id at 1.
Id. at 2.
R. Doc. 72.
R. Doc. 72-1.
Id.
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Desselle’s

testimony therefore does not support a finding that she has the authority to
reinstate Mire.
Mire’s argument is also undermined by her own allegations. In her
second amended complaint, Mire alleges that she “was specifically informed
by LSUHSC that . . . [her] termination would not become effective unless and
until it was approved by the Dean of the Medical School.” 47 Mire provides
no explanation for why LSU Health would require the Dean of the Medical
School to approve terminations, but not reinstatements.
Because Mire has not met her burden to show that Sorenson or
Desselle has the authority to reinstate any terminated resident, the Court
grants summary judgment.

IV.

CONCLUSION

For the forgoing reasons, the Court finds that it lacks subject matter
jurisdiction over Mire’s claims against Sorenson and Desselle. Accordingly,
Mire’s claims are DISMISSED WITHOUT PREJUDICE.
1st
New Orleans, Louisiana, this _____ day of March, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
47

R. Doc. 27 at 10.
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