Simpson v. The Vanderbilt University
Filing
243
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/16/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JEAN F. SIMPSON, M.D.,
Plaintiff,
v.
THE VANDERBILT UNIVERSITY,
Defendant.
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Civil No. 3:13-cv-01177
Judge Sharp
Magistrate Judge Holmes
MEMORANDUM
Plaintiff Jean F. Simpson brought this action for wrongful termination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-1 et seq. (“Title VII”)
and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-301 et seq. (“THRA”).
Defendant Vanderbilt University (“Defendant” or “Vanderbilt”) has countersued for breach of
contract. Pending before the Court are the Parties’ cross motions for summary judgment. For
the reasons set forth below, the Court will grant summary judgment in Defendant’s favor on
Plaintiff’s discrimination and retaliation claims and will dismiss the state law counterclaim.
I.
Factual & Procedural Background
Unless stated otherwise, the following facts are drawn from the parties’ statements of
undisputed facts and the responses thereto.1 Plaintiff is a doctor specializing in breast pathology.
She worked for Defendant as part of the Vanderbilt University School of Medicine (“VUSM”)
and the Vanderbilt Medical Group (“VMG”) from June 1, 1997 until her termination on October
24, 2013. At the time of her termination, Plaintiff held a full-time faculty appointment as a
professor in the Division of Anatomic Pathology (“Pathology Division”). In that role, Plaintiff
1
The various factual statements and responses are available at Docket Nos. 124, 146, 152, 160, 179, 180, 189, 190,
212, 222, 226, and 227.
1
examined, interpreted, and rendered reports on pathology specimens in an effort to identify and
diagnose diseases, such as cancers.
When Plaintiff started her employment, the Pathology Division had a dedicated breast
consult practice (“Page Breast Service”), which was started by Dr. David Page in the 1980s. The
Page Breast Service allowed outside pathologists or physicians, who were unaffiliated with
Vanderbilt (“referral sources”) to seek assistance with pathology for breast tissue. Sometimes
the referral sources sought a second opinion, but the primary purpose of these outside
consultations was typically to assist the referral source in arriving at the correct diagnosis in the
first instance. Dr. Page and those who worked on his service would provide the requested
diagnostic assistance to referral sources within twenty-four hours. Dr. Page trained Plaintiff in
his breast tissue diagnostic methods and she worked on his service until he resigned in 2010. In
the last five years of her employment with Defendant, Plaintiff spent approximately one hour a
day analyzing breast tissue samples.
She spent the rest of her time doing other surgical
pathology work, such as autopsy pathology and cystopathy, teaching residents, attending
conferences, preparing research papers, and delivering lectures.
In July 2011, Plaintiff learned that Vanderbilt was going to reorganize the Pathology
Division to eliminate the Page Breast Service. The reorganization occurred in July 2012. After
that point, breast tissue specimens were processed through general surgical pathology, rather
than having a separate process. Like other specimens sent to the Pathology Division, breast
tissue specimens were logged in and assigned to a resident or pathology assistant to prepare the
tissue for examination. From there, samples were reviewed by a resident, who would formulate
a diagnosis with the attending pathologist. Only several of the pathologists were trained by Dr.
2
Page in the analysis of breast tissue. The reorganization impeded pathologists’ abilities to
respond to referral sources within twenty-four hours.
Plaintiff found the elimination of the Page Breast Service to be concerning, both because
of the delays attendant to processing breast tissue through general surgical pathology and
because Dr. Page had not trained all of the pathologists to analyze breast tissue.
Soon after she learned of the reorganization but prior to its occurrence, Plaintiff obtained
a charter for a corporation, Breast Pathology Consultants, Inc. (“BPC”). Plaintiff also leased
office space for BPC in a building located near the Vanderbilt campus on September 28, 2011.
The website for BPC described its services as follows:
Breast Pathology Consultants, Inc. offers second opinion diagnostic pathology
services for pathologists, clinicians, and patients. Through years of experience
and by seeing tens of thousands of cases, we can give guidance to pathologists for
cases that are diagnostically challenging. For the clinician, we can clarify the
pathology findings so that treatment decisions can be formulated. And for
patients, we can help allay concerns about the correct diagnosis being made, so
that appropriate treatment can be planned. Our services, geared for pathologists
and clinicians, benefit patients by providing accurate and timely diagnoses, thus
reducing the emotional distress caused by waiting. Once a diagnosis is
established, management decisions can be formulated.
(Docket No. 13-4).
In early 2012, Plaintiff began calling pathologists for whom she had
provided consultation on breast cancer cases.
She also sent letters to several hundred
pathologists who had submitted consult cases to the Page Breast Service. The letters, sent in
February 2012, informed the referral sources of the reorganization and offered Plaintiff’s
diagnostic services through BPC as an alternative. Plaintiff’s letters expressed her concerns that
there would be inconsistent diagnostic approaches without the dedicated Page Breast Service and
that the turnaround time would now be longer.
After starting BPC, Plaintiff remained a Vanderbilt employee. She continued to examine
breast tissue samples for both internal physicians and external referral sources. Plaintiff also
3
began diagnostic breast pathology consults on behalf of BPC in April 2012. Apart from the
difference in turnaround time, the work Plaintiff performed through Vanderbilt was identical to
the work she performed through BPC.2 Plaintiff did not ask permission to establish and run
BPC, nor did she discuss her new business venture with anyone at Vanderbilt.
Plaintiff
continued to provide services through BPC throughout the rest of her tenure at Vanderbilt.
Between February 2012 and October 2013, Plaintiff collected fees through BPC in the total
amount of $244,146.84.
In the summer of 2012, Vanderbilt’s Compliance Office received an anonymous tip that
through BPC, Plaintiff was engaging in the practice of anatomical pathology outside of her
employment. Around the same time, Vanderbilt’s Pathology Division received certain tissue
sample deliveries that were addressed to Plaintiff at BPC. An internet search showed Plaintiff as
the Registered Agent for BPC. On August 2, 2012, after learning all of this information, Drs.
Samuel A. Santoro, the Chair of the Department of Pathology, Microbiology, and Immunology
at Vanderbilt, and Michael Laposata, Vice-Chair of the Department, met with Plaintiff. Drs.
Santoro and Laposata informed Plaintiff that they were aware of her activity through BPC and
stated that such activity was a violation of Vanderbilt’s Conflict of Interest Policy (“COIP”), the
VMG By-Laws, and the VMG Participation Agreement.3 They also noted that Plaintiff had not
included her work with BPC on her 2012 Conflict of Interest Disclosure, which she filed on May
16, 2012. After the meeting, Plaintiff and Dr. Santoro corresponded about their discussions, and
2
Plaintiff argues that the work at BPC was different from her work at Vanderbilt because of the faster turnaround
time and because she was able to provide superior care and consistency. (Docket No. 188 at 3-4). Even if such
differences in care did exist, they do not affect her claims of discrimination or retaliation.
3
These policy documents are included in the record at Docket Nos. 25-1 to 25-3. Plaintiff signed the Participation
Agreement, sometimes referred to as the “Provider Agreement,” by which she acknowledged and agreed to be
bound by the By-Laws and agreed to endorse over to Defendant all fees that she received for professional services.
4
Plaintiff opined that her activities were not a conflict of interest because BPC offered a twentyfour hour turnaround while Vanderbilt no longer did.
On October 12, 2012, Dr. Santoro sent a follow-up letter to Plaintiff in which he
informed Plaintiff that she needed to cease her work through BPC in order to comply with the
VMG Participation Agreement and By-Laws.
Without responding to Dr. Santoro’s letter,
Plaintiff then amended her conflict of interest disclosure to reflect her work with BPC.
Plaintiff’s counsel, Richard Braun, apparently met with an attorney in the Deputy General
Counsel’s office, Julia Morris, on October 25, 2012, to discuss Plaintiff’s belief that she was
being discriminated against based on her gender. On October 26, 2012, Dr. Santoro, along with
Dr. David S. Raiford, Associate Dean of Faculty Affairs, advised Plaintiff that her work with
BPC and her work at Vanderbilt were incompatible. The letter asked Plaintiff to respond in
writing with her plan to resolve the conflict of interest by October 30, 2012.
Plaintiff responded directly to Drs. Santoro and Raiford to inform them that her attorney
would be in contact with Ms. Morris. She did not mention the attorneys’ previous meeting or
gender discrimination in her response. Mr. Braun reached out to Ms. Morris on October 30,
2012 to inform them that, given the impasse on Plaintiff’s work with BPC, Plaintiff would be
filing a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC
Charge”). After receiving a copy of Plaintiff’s EEOC Charge in February 2012, Vanderbilt
conducted an internal investigation through its Equal Opportunity, Affirmative Action, and
Disability (“EAD”) office. In a report dated March 4, 2013, the EAD stated a finding of no merit
to Plaintiff’s complaint of discrimination.
It appears that business proceeded as usual for several months. On June 27, 2013, Dr.
Jeffrey Balser, Dean of the School of Medicine, notified Plaintiff that he was considering the
5
possibility of disciplinary action against her for her continued work through BPC. Dr. Balser
again noted that Plaintiff’s outside consulting through BPC appeared to violate the VMG
Participation Agreement and By-Laws, as well as the COIP. In a response dated July 15, 2013,
Plaintiff denied that her activities competed with Vanderbilt and pointed to Dr. Page’s previous
consulting work as an example of a male pathologist who was allowed to maintain an outside
practice. Dr. Balser then appointed a faculty committee, comprised of two female and one male
clinical physicians, to investigate the allegations against Plaintiff.
Plaintiff declined the
committee’s request to meet as part of their investigation.
The investigative committee reported its findings on September 16, 2013.
The
investigation yielded the following results:
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 By-laws and VMG Provider Agreement.
Plaintiff responded to the report in writing on October 2, 2013, noting her disagreement with
some of the statements and findings. On October 7, 2013, the investigative committee wrote to
Dr. Balser to say that Plaintiff’s objections were immaterial to their decision and that their
recommendation remained unchanged.
The Parties, through their counsel, then engaged in what appear to be productive yet
unsuccessful settlement communications. (Docket Nos. 225-1 to 225-7). Plaintiff was given the
option of resigning in lieu of termination, conditioned upon her payment to Defendant of all
monies received through BPC during employment with Vanderbilt.
6
(Docket no. 225-3).
Plaintiff ultimately rejected this offer as unreasonable. (Docket No. 225-7). Soon thereafter, on
October 24, 2013, Dr. Balser terminated Plaintiff for cause.
The EEOC dismissed Plaintiff’s charge of discrimination and she initiated this litigation
shortly thereafter. Plaintiff asserts that male employees who engaged in outside consulting were
not terminated from their employment and that this alleged disparity constitutes gender-based
discrimination in violation of Title VII and the THRA. Plaintiff also alleges that Defendant only
took issue with her work through BPC after she raised, through her attorney, complaints of
gender discrimination.
Accordingly, she argues that the investigation and her subsequent
termination were retaliatory. Defendant argues that Plaintiff violated that VMG Participation
Agreement and By-Laws, as well as the COIP, and that these violations constitute actionable
breaches of contract. The Court finds that Defendant is entitled to summary judgment on
Plaintiff’s employment claims and declines to exercise continued jurisdiction over Defendant’s
pendant state law claim for breach of contract. Accordingly this matter will be dismissed.
II.
Legal Analysis
A. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary
judgment if the moving party “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); see Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d
597, 601 (6th Cir. 1988). In reviewing a motion for summary judgment, the evidence must be
viewed in the light most favorable to the nonmoving party, and the “judge may not make
credibility determinations or weigh the evidence.” Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.
1994); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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When the motion is supported by documentary proof such as depositions and affidavits, the
nonmoving party may not rest on his pleadings but, rather, must present some “specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. It is not sufficient
“simply [to] show that there is some metaphysical doubt as to the material facts.” Matsushita,
475 U.S. at 586. These facts must be more than a scintilla of evidence and must meet the
standard of whether a reasonable juror could find by a preponderance of the evidence that the
nonmoving party is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). Summary judgment must be entered “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.” Celotex, 477 U.S. at 322
B. Plaintiff’s Wrongful Termination Claim
Plaintiff claims that her October 2013 termination was the result of gender discrimination
in violation of Title VII and the THRA.4 More specifically, she claims that male employees
were either allowed to engage in outside practice or were not disciplined as harshly for doing so.
Plaintiff believes that she was terminated for the same conduct that Vanderbilt sanctioned among
its male doctors.
A plaintiff may prove that she was subject to disparate treatment based on gender in
violation of Title VII using either direct or circumstantial evidence. Where, as here, there is no
direct evidence of discrimination, the plaintiff’s circumstantial evidence is analyzed under the
familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). Clay v. United Parcel Serv., Inc., 501 F.3d 695,
703 (6th Cir. 2007). Under the McDonnell Douglas framework for discrimination claims, a Title
4
Claims under the THRA are analyzed under the same framework as those based upon Title VII. Chattman v. Toho
Tenax Am., Inc., 686 F.3d 339, 347 (6th Cir. 2012); Howington v. Quality Restaurant Concepts, LLC, 298 F.
App’x. 436 n.1 (6th Cir. 2008). Accordingly, if Plaintiff’s claims fail under Title VII they also fail under the THRA.
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VII plaintiff must first make out a prima facie case of discrimination by showing “(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) she was replaced by a person outside the protected class,
or similarly situated non-protected employees were treated more favorably.” Peltier v. United
States, 388 F.3d 984, 987 (6th Cir. 2004) (citing Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d
1241, 1245 (6th Cir. 1995)).
After the plaintiff has made out a prima facie case of
discrimination, the employer must present a legitimate, nondiscriminatory reason for the
termination. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). The burden of
production then shifts back to the plaintiff to show that the employer’s proffered
nondiscriminatory reason was pretext. Id.
The Parties agree that Plaintiff is a member of a protected group who was subject to an
adverse employment action despite being qualified for the position. (Docket No. 145 at 17). She
has not been replaced by a male. The issue, then, is whether Plaintiff has demonstrated that a
similarly-situated male received more favorable treatment. Indeed, the gravamen of Plaintiff’s
argument is that male doctors who earned income from outside patient care did not face such
severe discipline. The facts presented do not bear out this argument. Even if they did, Plaintiff
cannot rebut Defendant’s legitimate explanation for her termination.
1. Plaintiff Has Not Identified a Similarly Situated Male Comparator
In determining whether any males were similarly situated to Plaintiff, it is useful to begin
by defining Plaintiff’s situation. She founded and operated a profitable side business providing
precisely the same professional services she rendered in her role as a Vanderbilt employee.5
Plaintiff did not disclose her business even though such disclosure was called for under
5
Again, the difference in timing and quality of Plaintiff’s services through BPC and her services through Vanderbilt
do not change the fact that the substance of her work at both locations was fundamentally the same.
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Defendant’s policies. When confronted with the fact that this conduct likely violated multiple
policies, she refused to abate her side business or to turn over any fees to Defendant. Plaintiff
also declined to participate in the disciplinary investigation into her conduct.
Defendant
terminated her employment after more than a year of back-and-forth about this issue, a period of
time during which Plaintiff made no efforts to bring her conduct into compliance with
Vanderbilt’s policies. With those undisputed facts in mind, the Court turns to whether Plaintiff
can show that a similarly situated male received more favorable treatment.
To prevail on this prong of her prima facie case, Plaintiff must identify at least one male
comparator who is similarly situated to her in all relevant respects. Gragg v. Somerset Tech.
Coll., 373 F.3d 763, 768 (6th Cir. 2004). In the context of a wrongful termination claim, the
Sixth Circuit has described a person who is similarly situated as someone who has “been subject
to the same standards and has 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.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
Plaintiff advances a number of males as similarly situated individuals. She names four
male physicians who performed work through the online platform Consulting MD. However,
Plaintiff does not dispute Defendant’s statement that “all four of those individuals had
discontinued their participation when confronted and paid to Vanderbilt any fees received by
them through that site.” (Docket No. 160 at 24). Their conduct and mitigation renders these four
doctors dissimilar to Plaintiff.
Several doctors have profiles on another online platform,
WebMD. However, there is no evidence that those doctors with WebMD profiles actually
performed any professional services through the website or received any fees. Mere presence on
the site does not liken them to Plaintiff.
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Plaintiff also points to male doctors who were involved with the outside organization
Best Doctors. For example, Plaintiff identifies Dr. Laposata, whose work through Best Doctors
allowed him to collect $3,150.00 for professional services. However, after this work came to
light, Dr. Laposata endorsed the entirety of fees received through Best Doctors to Vanderbilt.
His conduct—namely, his efforts to remedy the alleged violations—differed materially from
Plaintiff’s handling of the same alleged violations. Moreover, he did not start and operate a
separate business entity, but rather continued participating in a service that he had been involved
with prior to the start of his employment with Defendant.
Nine other doctors employed by Defendant also had profiles on the Best Doctors website
and received fees for professional services rendered through the organization.
When this
information came to light, Defendant, via Dr. Raiford, instructed the physicians to discontinue
their work through Best Doctors and to turn over all fees received for the same. Unlike Plaintiff,
eight of the nine doctors complied with Dr. Raiford’s directives and have been cooperating with
Defendant to rectify the problem.6 And again, they merely participated in consulting services
offered by nationwide organization; they did not start their own business in the same locale.
The ninth doctor, Dr. Peter Donofrio, comes the closest to being similarly situated to
Plaintiff. Dr. Donofrio discontinued his work with Best Doctors at the direction of Defendant in
2011, but then later resumed it and failed to disclose it on his conflict of interest form. This
came to light during discovery, and when Defendant learned of the resumption, Dr. Donofrio
was subject to the same type of internal investigation to which Plaintiff was subject. Dr.
Donofrio, however, participated in the investigation and made plans with Dr. Raiford to repay all
fees received through Best Doctors to Vanderbilt.
6
(Docket No. 93-3).
Because of his
Plaintiff takes issue with the fact that some of the money these doctors earned through Best Doctors will ultimately
be returned to them as part of the VMG fee-sharing arrangement. The Court does not find this fact to be material, as
it seems more attributable to these physicians’ ready cooperation with Defendant than it is to their gender.
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cooperation, the investigative committee recommended a letter of reprimand. (Docket No. 93-2).
Dr. Raiford imposed a steeper punishment: in addition to the repayment of fees and letter of
reprimand, Dr. Raiford placed Dr. Donofrio on probation for a period of two years. (Docket No.
93-3). Dr. Donofrio’s situation most resembles that of Plaintiff because, like her, he engaged
outside practice even after being made aware that doing so violated some of Defendant’s
policies. Yet his situation is dissimilar from Plaintiff’s insofar as he ceased the problematic
conduct, cooperated with the ensuing investigation and set up a repayment plan.
In her supplemental briefing, Plaintiff identifies several other male doctors who had
approval from VMG to participate in private practice. All of these doctors were part-time
employees of Defendant and/or were transitioning out of employment with VMG and into
private practice. (Docket No. 227 at 4-7). Plaintiff now asserts that she, too, was transitioning
into retirement. Apart from a self-serving statement made eighteen months into the litigation and
thirty months after Defendant first approached Plaintiff about BPC, she presents no evidence of
any retirement plans or Defendant’s awareness thereof.
Regardless, Vanderbilt’s policies
specifically provide for private practice arrangements in certain circumstances.
All of the
individuals named by Plaintiff engaged in private practice in compliance with Vanderbilt policies
and did so with the approval of VMG. Id. Therefore there exists a crucial difference between
those doctors and Plaintiff: she was a full-time employee who engaged in private practice
without permission and in a way that violated policies. Notably, Defendant has presented
undisputed evidence that women who were part-time employees of Vanderbilt and/or were
transitioning out of their employment relationships also received approval for private practice
arrangements. Id. at 5.
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Finally, Plaintiff refers to Dr. Page as a male comparator who she alleges received more
favorable treatment after violating Defendant’s policies because he was offered the option of
resigning. Dr. Page was apparently aware that some of his conduct made him vulnerable to
disciplinary proceedings and resigned prior to the initiation of an investigation. Dr. Page does
not constitute a viable comparator because the reasons for the potential disciplinary action
against him were substantially different. Moreover, while he did engage in outside provision of
professional services, it is undisputed that he did so openly and with Vanderbilt’s permission.
He, too, referred the proceeds from his outside practice back to Vanderbilt. Finally, Plaintiff
received but rejected an offer of resignation, even if it came later than she would have preferred.
In sum, none of the male employees that Plaintiff refers to engaged in the same conduct
that she did: founding a geographically proximate direct competitor. Those doctors who worked
with other local entities had permission to do so and did not violate Defendant’s policies. Those
doctors who improperly provided professional services through broader organizations cooperated
with Defendant to remedy any offenses. Unlike Plaintiff, all of those doctors mitigated their
problematic behavior by ceasing it and endorsing all monies over to Vanderbilt.
These
distinctions prevent them from serving as comparators for the purpose of Plaintiff’s prima facie
case. Because she has not named a single individual who is actually similarly situated to herself,
Plaintiff has failed to establish the fourth prong of her prima facie case and therefore cannot
carry her burden under McDonnell Douglas.
2. Plaintiff Has Not Shown Pretext
Even if Plaintiff had carried her burden and demonstrated a prima facie case, she would
still be unable to prove that her termination was pretext for discrimination. A plaintiff can show
pretext “in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the
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proffered reasons did not actually motivate the employer’s action, or (3) that they were
insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th
Cir. 2009) (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 460 (6th Cir. 2004)). To carry
her burden at this stage, Plaintiff “must produce sufficient evidence from which a jury could
reasonably reject [Defendant’s] explanation of why it fired her.” Id. (citations omitted).
Vanderbilt asserts that it terminated Plaintiff’s employment because her establishment of
BPC violated university policies and she did not take any action to remedy these violations. The
evidence on the record confirms Plaintiff’s work with BPC violated the VMG By-Laws and
Participation Agreement.
Regarding Defendant’s motivation, the case of Dr. Donofrio is
instructive. There, Defendant reacted to the news of violations of the By-Laws, Participation
Agreement, and COIP in precisely the same manner: by sending a letter informing the physician
of the seriousness of the conduct; impaneling an investigative committee; and taking disciplinary
steps after receiving the results of the investigation. The outcome was different because of Dr.
Donofrio’s cooperation and efforts to mitigate his conduct. These parallel disciplinary processes
underscore the gravity of Plaintiff’s offense and confirm that all such offenses gave rise to the
possibility of major disciplinary action. The discipline to which Dr. Donofrio was subject
provides a helpful external check on Defendant’s explanation for Plaintiff’s termination and, in
so doing, belies any allegations of pretext.
Put another way, Defendant’s explanation for
Plaintiff’s termination justifies the decision.
In short, Plaintiff cannot shoulder her burden in the first instance because she cannot
identify a similarly situated male employee who received more favorable treatment. Even if she
had made that showing, her wrongful termination claim would fail because she cannot rebut
14
Defendant’s legitimate explanation for the termination decision. Accordingly, her claims of
discrimination fail under both Title VII and the THRA.
3. Plaintiff’s References to Salary Disparities
In her supplemental briefing, filed eighteen months into the litigation, Plaintiff spends
several pages addressing alleged pay disparities based on gender.
The Court finds these
allegations puzzling, as Plaintiff did not assert a pay discrimination claim, nor has she sought
leave to amend her complaint in order to do so. Additionally, as Defendant points out, such a
claim would be outside the scope of Plaintiff’s EEOC charge and therefore may not be properly
administratively exhausted.
Accordingly, the Court declines to address the pay disparity
allegations.
C. Plaintiff’s Retaliation Claim
Plaintiff also alleges that Defendant instigated the disciplinary process in retaliation for
her raising, through her attorney, complaints of gender discrimination. She also argues that she
was terminated for filing this lawsuit. A retaliation claim, like Plaintiff’s other discrimination
claims, is subject to the McDonnell Douglas burden-shifting framework articulated above.
Evans v. Prospect Airport Servs., Inc., 286 F. App’x 889, 894 (6th Cir. 2008). To establish a
prima facie case of retaliation under Title VII, an employee must show “(1) that she engaged in
activity protected by Title VII; (2) that her exercise of such protected activity was known by the
defendant-employer; (3) that the employer thereafter took an action that was materially adverse
to the employee; and (4) that a causal connection existed between the protected activity and the
materially adverse action.” Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009).
The first three elements are again satisfied: Plaintiff engaged in the protected activity of
complaining about gender discrimination, both via the EEOC and by filing this lawsuit, and this
15
activity was known to Defendant. Defendant launched a formal investigation into Plaintiff’s
conduct at some point after learning of her gender complaints and terminated Plaintiff’s
employment on the same day that she filed this lawsuit. The remaining issue is whether Plaintiff
presented sufficient evidence for a rational jury to infer a causal connection between her
complaints and the adverse employment actions.
Plaintiff rests her argument regarding causation entirely upon temporal proximity. More
specifically, she alleges that the quick turnaround between her EEOC charge and the subsequent
investigation, and between her filing of her complaint and subsequent termination show that her
protected activity caused the adverse actions. Plaintiff is correct that the Sixth Circuit has
endorsed the proposition that, in certain circumstances, temporal proximity may be sufficient to
show causation.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 524 (6th Cir. 2008)
(collecting cases). However, a close review of the record reveals that no such circumstances are
present here.
First, Plaintiff had notice of the looming disciplinary investigation prior to filing an
EEOC Charge. Dr. Santoro first met with Plaintiff and discussed the gravity of her actions on
August 2, 2012, over two months before she ever mentioned gender discrimination. He followed
up with her in person and in writing on October 12, 2012, at which time Plaintiff was instructed
to immediately cease her extracurricular practice. (Docket No. 13-8). Dr. Santoro’s letter, sent
two weeks before any mention of gender discrimination, expressly states that if Plaintiff does not
cease her practice through BPC, he “will initiate disciplinary action” against her “that may
include termination of [her] faculty appointment.” Id. Plaintiff did not cease her extracurricular
practice, either in response to that communication or at any point during the remainder of her
employment with Defendant. It is disingenuous at best to assert that the EEOC charge predated
16
the disciplinary action when Plaintiff was clearly on notice prior to complaining. The timeline
does not support the element of causation.
Second, Plaintiff’s termination was the result of failed negotiations, not her decision to
file a lawsuit. The undisputed evidence on the record shows that Plaintiff was informed, via
email to her counsel on October 15, 2013, that Dr. Balser would likely adopt the
recommendation of the investigative committee, termination, and would probably make a
decision prior to expiration of her appointment on October 31, 2013. (Docket no. 225-3). In that
same email, Plaintiff was advised that she could avoid this result by resigning and paying
Vanderbilt money received for the services provided in violation of policy. Id. After a week of
silence from Plaintiff, counsel for Vanderbilt followed up with her attorney and the two attorneys
exchanged several emails on October 22 and 23, 2013. (Docket Nos. 225-4 to 225-6). It was
only after Plaintiff expressly rejected Defendant’s offer of resignation that Dr. Balser submitted
her termination letter.
(Docket No. 4-3).
This chain of events indicates that Plaintiff’s
termination was the predetermined outcome should she turn down the resignation offer. The
impetus for notifying her of the termination decision was not protected activity, but rather her
rejection of Vanderbilt’s efforts to reach a resolution short of litigation.
Once again, the
temporal proximity does not support the element of causation.
Plaintiff advances no other arguments regarding causation. Even if she did, the record
conclusively establishes that it was Plaintiff’s activity with BPC,—not her complaints of
discrimination—that prompted Defendant to take formal action against her. She has therefore
failed to make out a prima facie case of retaliation. Moreover, the extensive documentary
evidence submitted by Defendant prevents Plaintiff from demonstrating pretext. Because no
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reasonable jury could find that the evidence on the record is sufficient to support a claim of
retaliation, Plaintiff’s claim must fail.
D. Defendant’s Counterclaim for Breach of Contract
When a federal court has dismissed the claims over which it had original jurisdiction, it
may decline to exercise supplemental jurisdiction over the remaining claims under state law. See
28 U.S.C. 1367(c)(3). “It is well-established within the Sixth Circuit that a court’s dismissal of
the claims providing for original jurisdiction at an early stage (i.e., as here, on summary
judgment) strongly weighs in favor of dismissing of the remaining state-law claims.” Stewart v.
FirstEnergy Corp., No. 105-CV-00022, 2007 WL 43645, at *1 (N.D. Ohio Jan. 5, 2007) (citation
omitted). See also Musson Theatrical Corp. v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th
Cir. 1996) (“When all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the state law claims, or remanding them to state court if the
action was removed.”). This Court declines to continue to exercise jurisdiction over Defendant’s
state law counterclaim for breach of contract and will dismiss it without prejudice. In so doing,
the Court does away with the only remaining claim and ends the litigation.
III.
Conclusion
Plaintiff’s Title VII and THRA claims for wrongful termination fail because she cannot
identify a similarly situated male comparator. Her retaliation claims fail because she cannot
show that the adverse employment actions she suffered were caused by her protected activity.
On neither claim can she show pretext. Instead, the record confirms that Plaintiff was subject to
an investigation and eventually terminated because she refused to remedy her problematic
conduct by either stopping her private practice or endorsing the money she received via BPC
over to Vanderbilt. Plaintiff’s claims therefore fail and this Court declines to exercise continued
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jurisdiction over Defendant’s counterclaim for breach of contract. Accordingly, this action will
be dismissed.
A separate order shall enter.
_______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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