Gaalla et al v. Citizens Medical Center et al

Filing 414

AMENDED MEMORANDUM AND ORDER granting in part denying in part 135 MOTION for Summary Judgment, 267 BRIEF in Support Pursuant to Fifth Circuit Remand Order; denying as moot 282 Motion to Strike, denying as moot 326 Opposed MOTION to Strike.(Signed by Judge Gregg Costa) Parties notified.(arrivera, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
§
§
§
Plaintiffs,
§
VS.
§
CITIZENS MEDICAL CENTER, et al, §
§
§
Defendants.
AJAY GAALLA, et al,

CIVIL ACTION NO. 6-10-14

AMENDED MEMORANDUM OPINION AND ORDER
THE COURT’S PRIOR MEMORANDUM AND ORDER, ISSUED ON
NOVEMBER 30, 2013, IS WITHDRAWN. THIS MEMORANDUM AND
ORDER IS ISSUED IN ITS PLACE.
After numerous district court rulings and two interlocutory appeals, the
remaining dispositive motion in this longstanding case is Defendant David P.
Brown’s summary judgment motion that the Fifth Circuit remanded for
reconsideration under a different evidentiary framework. See Gaalla v. Brown,
460 F. App’x 469, 481–82 (5th Cir. 2012). Those remanded claims are the ones
that cardiologist Plaintiffs, Drs. Ajay Gaalla, Harish Chandna, and Dakeshesh
“Kumar” Parikh, assert against Brown, the chief administrator of codefendant
Citizens Medical Center (“CMC”), alleging that eight actions he took from 2007
through 2009 violated the Equal Protection Clause.

1 / 26

The Fifth Circuit disagreed with Plaintiffs that there is direct evidence of
discrimination and remanded for evaluation of the claims under the “McDonnell
Douglas burden-shifting framework” to determine whether there is sufficient
circumstantial evidence of discrimination to get the case to a jury. Gaalla, 460 F.
App’x at 481–82.

The Fifth Circuit also emphasized that this Court should

“connect the evidence” to each of the eight challenged actions. Id. at 480. With
this guidance in mind, the Court has reviewed the motion, briefing, arguments of
counsel, and applicable law to separately evaluate the circumstantial evidence for
each challenged action and determines that Brown’s Motion for Summary
Judgment should be GRANTED IN PART and DENIED IN PART.
I.

PROCEDURAL HISTORY
Other opinions summarize the history of this case, see, e.g., Gaalla, 460 F.

App’x. at 472–74, so this one will just trace the path of Brown’s summary
judgment motion as it relates to claims that remain against him.1 In November
2010, Brown filed his motion arguing that qualified immunity entitled him to
dismissal of Plaintiffs’ claims. Regarding the equal protection claims, the district
court (Jack, J.) found that Plaintiffs had presented direct evidence suggesting that
racial animus motivated Brown’s actions.
1

The primary impetus for this lawsuit was a Resolution that CMC's Board passed on February
17, 2010, which restricts hospital privileges to cardiologists who had contracts with CMC, and
thus precludes Plaintiffs from practicing at CMC. That claim remains against CMC. State law
claims also remain against codefendant Dr. William Campbell.
2 / 26

Brown, together with other defendants, appealed various aspects of the
summary judgment ruling, including the holding that Plaintiffs had produced
sufficient direct evidence to raise a fact issue on the discrimination claims. The
Fifth Circuit disagreed that direct evidence of discrimination existed, explaining
that general evidence of discriminatory animus does not automatically establish
that such animus motivated a particular challenged employment action. See id. at
479–80. As an example, although the Court of Appeals described a memo Brown
wrote as an “obvious instance of discriminatory attitude,” id. at 473, it nonetheless
concluded that the memo did not “show[] on its face that an improper criterion
served as a basis . . . for the adverse employment action. Id. at 479 (quoting
Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003)). Given its
determination that direct evidence of discrimination did not exist, the Fifth Circuit
remanded for this Court to analyze in the first instance whether Plaintiffs had
produced sufficient circumstantial evidence to get to a jury on each of the
challenged actions.
II.

APPLICABLE LEGAL STANDARDS
A.

The Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue on any
material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).

3 / 26

A factual dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect
the outcome of the suit under the governing law.” Id. The movant has the burden
of establishing that there are no genuine issues of material fact. Celotex Corp. v.
Catrett, 877 U.S. 317, 331 (1986). All reasonable doubts on questions of fact must
be resolved in the nonmovant’s favor. See Evans v. City of Houston, 246 F.3d 344,
348 (5th Cir. 2001) (citation omitted).
B.

The McDonnell Douglas Framework

“Because direct evidence is rare” in employment discrimination cases, the
McDonnell Douglas burden-shifting framework that the Court of Appeals directed
this Court to apply is the one typically applied at the summary judgment stage.2
Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994). Under
McDonnell Douglas, the plaintiff first has the burden to establish a prima facie
case of discrimination. Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.
2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000)). If the plaintiff establishes a prima facie case, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the allegedly
discriminatory action. Id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S.
2

Although Plaintiffs allege equal protection violations under section 1983, in employment
discrimination cases, “‘Section 1983 and [T]itle VII are parallel causes of action.’” Gaalla, 460
F. App’x at 480 n.7 (quoting Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d
157, 166 (5th Cir. 2007)). This opinion therefore relies on many Title VII cases.
4 / 26

792, 802 (1973)). If a defendant advances such a justification, then the burden
shifts back to the plaintiff to demonstrate that the proffered reason is not the true
reason for the action, but rather is a pretext for discrimination. Reeves, 530 U.S. at
143 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
To establish a prima facie case of discrimination, Plaintiffs must show that
they (1) are members of a protected class; (2) were qualified for the positions; (3)
were subject to an adverse employment action; and (4) that other similarly situated
employees were treated more favorably. Bryan, 375 F.3d at 360 (citing Okoye v.
Univ. of Tex. Hous. Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)). The parties do
not dispute that Plaintiffs, who are licensed cardiologists of Indian origin, satisfy
the first two elements of this test.
Brown argues on remand that some of the eight challenged actions are not
actionable adverse employment actions. See, e.g., Docket Entry No. 267 at 17–19.
But the Court finds that Brown forfeited this argument by not raising it in his initial
summary judgment motion. As the Fifth Circuit found in concluding that it could
not consider the adverse action argument on appeal, “Brown did not argue at the
summary judgment stage that any of his alleged acts were not adverse employment
actions.” Gaalla, 460 F. App’x at 479 n.6. The remand does not give Brown
another bite at the apple.

The Court of Appeals remanded with specific

instructions for this Court to evaluate the equal protection claims under a

5 / 26

circumstantial rather than direct evidence; nothing in the opinion opens the door to
another round of summary judgment motions with new arguments.
Brown seems to believe that he should be allowed to challenge whether the
conduct at issue constitutes adverse employment actions for the first time on
remand because the prima facie McDonnell Douglas test includes adverse
employment actions as an element. See Docket Entry No. 267 at 3–4. But the
adverse action requirement is an element of any discrimination claim, whether the
evidence used to prove that claim is direct or circumstantial. See, e.g., Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (“If an employee
presents credible direct evidence that a discriminatory animus at least in part
motivated, or was a substantial factor in the adverse employment action, then it
becomes the employer’s burden to prove . . . that the same decision would have
been made regardless of the discriminatory animus.” (citations omitted and
emphasis added)).

The Fifth Circuit recognized as much in this case when it

explained that direct evidence must show “on its face that an improper criterion
serves as a basis—not necessarily the sole basis, but a basis—for the adverse
employment action.” Gaalla, 460 F. App’x at 479 (emphasis added) (quoting
Fabela, 329 at 415). Brown therefore had every reason to timely raise the defense
in his initial summary judgment motion and the Court will not consider the

6 / 26

argument at this late stage. 3 See Lopez v. River Oaks Imaging & Diagnostic Grp,.
Inc., 542 F. Supp. 2d 653, 658 n.9 (S.D. Tex. 2008) (“The Fifth Circuit
consistently holds that when a party does not address an issue in his brief to the
district court, that failure constitutes a waiver on appeal. By analogy, failure to
brief an argument in the district court waives that argument in that court.”
(citations omitted)).
C. The “Similarly Situated” Requirement
Because Brown does not challenge the first two elements of the prima facie
case and forfeited challenging the third, the only element of the prima facie case to
consider is whether other similarly situated employees were treated more
favorably.4 With respect to the “similarly situated” requirement, the Fifth Circuit
has explained that “an employee who proffers a fellow employee as a comparator
3

The Court’s view that the remand was limited to evaluating the claims against Brown under a
circumstantial evidence standard and did not set a new deadline for summary judgment motions
also prevents it from considering other new arguments each side makes. The Court will not
consider the three new actions Plaintiffs have alleged in their response to Brown’s supplemental
briefing on remand. See Docket Entry No. 281 at 33–37. These actions were not identified by
the Fifth Circuit as actions to be considered under the McDonnell Douglas framework on
remand. See Gaalla, 460 F. App’x at 479.
The Court also will not consider Brown’s assertion that two of the actions the Fifth
Circuit identified are barred by the statute of limitations. See Docket Entry No. 321 at 19 n.8, 24
n.11. Brown’s original motion for summary judgment incorporated CMC’s motion for summary
judgment. Docket Entry No. 135 at 6–7. CMC’s motion argued this statute of limitations
defense. Docket Entry No. 133 at 8–9. In ruling on these motions, the Court rejected this
defense on the ground that Defendants had failed to meet their burden of establishing when the
causes of action accrued. Docket Entry No. 177 at 9–11. Brown did not appeal the limitations
issue to the Fifth Circuit, so the Court will not consider it on remand.
4
Due to the importance of this remaining prima facie element to the summary judgment ruling,
the Court ordered the parties to provide supplemental briefing in the form of a separate chart for
each of the eight claims in which Plaintiffs had to identify their alleged similarly situated
comparators. See Docket Entry Nos. 384, 388, 395.
7 / 26

[must] demonstrate that the employment actions at issue were taken ‘under nearly
identical circumstances.’” Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir.
2009) (quoting Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991)).
“Nearly identical,” however, should not be interpreted as synonymous with
“identical.” Id. “[A] requirement of complete or total identity rather than near
identity would be essentially insurmountable . . . .” Id
A number of factors are examined when determining whether a proposed
comparator’s actions occurred under nearly identical circumstances:
The employment actions being compared will be deemed to have been
taken under nearly identical circumstances when the employees being
compared held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories. And,
critically, the plaintiff’s conduct that drew the adverse employment
decision must have been nearly identical to that of the proffered
comparator who allegedly drew dissimilar employment decisions.
Id. (internal quotation marks and citations omitted). “If the ‘difference between
the plaintiff’s conduct and that of those alleged to be similarly situated accounts
for the difference in treatment received from the employer,’ the employees are not
similarly situated.” Id. (emphasis in original) (quoting Wallace v. Methodist Hosp.
Sys., Inc., 271 F.3d 212, 221 (5th Cir. 2001)).
In determining the potential class of comparators from which Plaintiffs may
be able to identify similarly situated individuals under the Lee criteria, the Court
will take into account that Plaintiffs work in a specialized field of medicine in a
8 / 26

city of fewer than 100,000 residents. Viewing potential comparators so narrowly
as to include only other cardiologists employed at CMC would not provide the
same scope of comparison available to a mechanic employed with a large
aerospace and aircraft manufacturer, see McDonnell Douglas, 411 U.S. at 794, or
to an engineer employed with an interstate railroad, see Lee, 574 F.3d at 255–56.
For that reason, as discussed below, in considering the “same job and
responsibilities” aspect of the similarly situated inquiry, id. at 260, the Court will
consider in appropriate circumstances whether other specialized doctors subject to
the same supervisor and hospital policies were treated more favorably. Cf. Keelan
v. Majesco Software, Inc., 407 F.3d 332, 338–40 (5th Cir. 2005) (discussing
plaintiffs’ argument that the “similarly situated” requirement should not apply
when a company does not have several similarly situated employees, and citing
case law to support to that argument, but concluding that plaintiffs failed to timely
raise the argument (citing Nieto v. L&H Packing Co., 108 F.3d 621, 623 n.5 (5th
Cir. 1997)).
D.

Qualified Immunity

One final legal issue bears mentioning before the evidentiary support for the
specific claims is assessed.

Brown sought summary judgment on qualified

immunity grounds, which is what entitled him to an interlocutory appeal. Gaalla,
460 F. App’x at 475. A qualified immunity defense involves two issues: “(1)

9 / 26

whether the defendant’s conduct violated a constitutional right, and (2) whether the
defendant’s conduct was objectively unreasonable in light of clearly established
law at the time of the violation.”

Id. (citation and internal quotation marks

omitted). Gaalla noted that a defendant is generally unable to establish the second
element in defending discrimination claim because “it is without question clearly
established that the Cardiologists have a right to be free from racial
discrimination.” Id. at 478–79 (“‘[G]enerally, where the evidence is sufficient to
support a claim of intentional gender or race discrimination, any immunity defense
will be foreclosed.’” (quoting Piatt v. City of Austin, 378 F. App’x 466, 469 (5th
Cir. 2010))). The remand to address Brown’s actions thus only contemplates this
Court considering the first qualified immunity element—whether Brown’s conduct
amounts to an equal protection violation—using the McDonnell Douglas standard.
Brown’s postremand supplemental briefing reflects the same understanding as it
fails to even mention the second element of the immunity defense. See Docket
Entry No. 267. The Court will thus follow the Fifth Circuit’s instructions and
assess only whether Plaintiffs have evidence sufficient to establish their equal
protection claim.
III.

ANALYSIS
As explained above, the McDonnell Douglas analysis in this case boils down

to three issues: (1) whether Plaintiffs establish their prima facie burden by showing

10 / 26

that they were treated less favorably than similarly situated employees; (2) if so,
whether Brown has articulated nondiscriminatory reason for his actions; and (3) if
Brown advances such a reason, whether Plaintiffs have shown that Brown’s
purported justification is pretextual. The Court will analyze these narrowed issues
for each of the following actions the Fifth Circuit listed:
(1)

Brown denied privileges, including ICD privileges, to Plaintiffs.

(2)

Plaintiffs’ ability to receive calls when a patient presented to the
emergency room was restricted.

(3)

Brown entered into contracts with a non-Indian cardiology group.

(4)

Brown removed Plaintiffs from the Chest Pain Center Committee.

(5)

Brown amended the protocols for the Chest Pain Center to exclude
Plaintiffs.

(6)

Brown initiated investigations of Plaintiffs when they lodged patient
care complaints.

(7)

Dr. Chandna was removed from the Peer Review Committee.

(8)

Brown allowed Dr. Yahagi to refuse to provide Plaintiffs with surgical
standby for a month.

Gaalla, 460 F. App’x at 479. The Court begins with those claims that it concludes
survive summary judgment, and then addresses those that do not.

11 / 26

A.

Claims that Survive Summary Judgment
Claim #2:

Plaintiffs’ ability to receive calls when a patient
presented to the emergency room was restricted.

Claim #5:

Brown amended the protocols for the Chest Pain Center
to exclude Plaintiffs.

Plaintiffs have raised two claims that are sufficiently similar to be analyzed
together: (1) that Brown restricted their ability to receive calls when their patients
visited CMC’s emergency room, and (2) that Brown amended the protocols of the
Chest Pain Center, the section of the hospital designated for treating emergency
chest pain, so that Plaintiffs were not called when their patients in the Center
required the emergency care of a cardiologist. Brown argues that Plaintiffs were
not called in these situations because they removed themselves from the on-call
list, the list of doctors available to be called in emergency situations.5 In the
December 2009 email chain changing the Chest Pain Center protocols from “Page
Cardiologist” to “Page Interventional Cardiologists On Call,” Brown comments
that he had spoken to the cardiologists under contract with CMC (“the CMC

5

Plaintiffs admit they removed themselves from the on-call list in 2007, explaining that they did
so because the CMC Cardiologists were compensated for being on-call under the terms of their
contracts with CMC, while Plaintiffs were not. See Docket Entry No. 281-71 ¶ 16.
12 / 26

Cardiologists”) “about a prompt response to patients formerly seen by
[Plaintiffs].”6 Docket Entry No. 153-60. Plaintiffs present evidence that the oncall list should be used only for patients who do not have a preexisting relationship
with a cardiologist. See Docket Entry No. 153-2 at 12–13.
As comparators, Plaintiffs offer the CMC Cardiologists, who were called
when their patients needed emergency services in either the emergency room or
Chest Pain Center. They argue that the CMC Cardiologists were similarly situated
because, like Plaintiffs, they were members of the medical staff, overseen by
Brown, and subject to CMC’s bylaws and regulations. In response, Brown asserts
that Plaintiffs and the CMC Cardiologists are not similarly situated because the
CMC Cardiologists are on the on-call list. This attempt to narrow the class of
similarly situated comparators to cardiologists not on the on-call list—a class
comprising only Plaintiffs—seems to put the cart before the horse because it
accepts as legitimate and nonprextetual Brown’s justification for his actions. It is
therefore enough to establish the prima facie case that Plaintiffs were the only
cardiologists with hospital privileges who, as a result of the challenged actions,
CMC no longer contacted when their patients needed emergency treatment.

6

The email chain refers to “pcg,” which stands for Drs. Parikh, Chandna, and Gaalla. The email
chain also refers to “Cardiovascular Associates,” which is the practice group of the CMC
Cardiologists.
13 / 26

Brown’s explanation that Plaintiffs were excluded because they removed
themselves from the on-call list in 2007 is sufficient to meet his burden of
articulating a nondiscriminatory reason for his instructions to refer all emergency
room and Center patients to the CMC Cardiologists, even if those patients already
had a relationship with Plaintiffs. See Reeves, 530 U.S. at 142 (describing the
defendant’s burden as “one of production, not persuasion; it ‘can involve no
credibility assessment.’” (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
509 (1993))). Brown’s presentation of this nondiscriminatory rationale causes the
presumption of discrimination to “drop[] out of the picture,” and requires Plaintiffs
to produce evidence showing that this justification is “unworthy of credence” and
an attempt to mask a discriminatory motive. Id. (citations and internal quotation
marks omitted).
The Court finds that Plaintiffs have provided ample evidence to create a fact
issue on pretext. First, the timing of the change to the Chest Pain Center protocol
is suspect. The December 2009 amendment to the Chest Pain Center protocols
occurred more than two years after the Plaintiffs’ October 2007 decision to remove
themselves from the on-call list. Compare Docket Entry No. 131-15 with Docket
Entry No. 153-60. Second, while Brown’s e-mail indicates the change to contact
only on-call cardiologists stemmed from the need for a “prompt response,” Docket
Entry No. 153-60, testimony from hospital personnel indicates that Plaintiffs did

14 / 26

not have any problems in timely responding to emergency calls. See, e.g., Docket
Entry No. 153-7 at 4–5. Third, with respect to the emergency room issue, CMC’s
Rules and Regulations Regarding Emergency Services require that emergency
personnel make every effort to contact a patient’s personal physician if requested,
whether or not that physician is on the on-call list. Docket Entry No. 153-18 ¶ 3.
Finally, although the Fifth Circuit held that Brown’s written and oral
statements evincing animus against Plaintiffs based on their national origin were
not direct evidence of discrimination because they were not tethered to the
challenged employment actions, it also recognized that “Brown’s statements may
serve as circumstantial evidence that his actions were motivated by racial animus.”
Gaalla, 460 F. App’x at 480; see also Palasota v. Haggar Clothing Co., 342 F.3d
569, 577 (5th Cir. 2003) (noting that “[a]fter Reeves . . . so long as [stray
discriminatory] remarks are not the only evidence of pretext, they are probative of
discriminatory intent”). Thus, considered along with the other pretext evidence
discussed above, a jury could infer from Brown’s statements that the actions he
took to prevent Plaintiffs from being contacted when their patients needed
treatment in the emergency room and Chest Pain Center were motivated not by his
fidelity to the on-call list, but by his concern that the Plaintiffs’ demands for
“leadership roles and . . . influence . . . will change the entire complexion of the

15 / 26

hospital and create a level of fear among our employees.” Gaalla, 460 F. App’x at
473.
Claim #3:

Brown entered into contracts with the non-Indian
cardiology group.

This claim asserts that Brown, on behalf of CMC, did not offer Plaintiffs the
same contracts he agreed to with the non-Indian CMC Cardiologists. During 2007,
the CMC Cardiologists entered into contracts, signed by Brown on behalf of CMC,
guaranteeing a base salary between $400,000 and $500,000. Brown argues that
Plaintiffs were offered the same contracts and refused them. He cites an August
24, 2007 letter sent to Dr. Gaalla referring to a previous conversation in which
Brown offered Dr. Gaalla “for the second time the same employment agreement”
that was given to the CMC Cardiologists. Docket Entry No. 174-5 at 3. Plaintiffs
have testified, however, that Brown’s contract offers were a sham. See Docket
Entry No. 281-71 ¶ 16.
Plaintiffs’ ability to establish a prima facie case on this claim thus hinges on
whether they were, as they allege, treated less favorably than the CMC
Cardiologists who signed contracts. On this issue, it appears the Fifth Circuit has
already spoken. In addressing an argument from CMC Board members that the
claimed contract offer to Plaintiffs negated the equal protection challenge to the
Resolution, the Court of Appeals noted conflicting summary judgment evidence on
whether Plaintiffs were offered the same contracts. Gaalla, 460 F. App’x at 478
16 / 26

n.5 (“Indeed, there is summary judgment evidence that [Plaintiffs] were offered the
same contracts that were offered to the contract cardiology group. However, the
summary judgment evidence also indicates that the contracts were never formally
offered to [Plaintiffs] . . . .”). The law of the case doctrine precludes this Court
from reconsidering the issue on remand.

See Alpha/Omega Ins. Servs. v.

Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001). Because the
evidence is viewed in the light most favorable to Plaintiffs at the summary
judgment stage, see Evans, 246 F.3d at 348 (citation omitted), the Fifth Circuit’s
assessment that Plaintiffs produced competent summary judgment evidence that
they were not offered the same contractual terms is sufficient to raise a genuine
issue of fact on the prima facie element of whether they were treated less
favorably.7 See Johnson v. Louisiana, 351 F.3d 616, 621 (“[A] plaintiff must raise
a genuine issue of material fact on each element of his prima facie case.” (citation
omitted)).
Because of his insistence that he offered Plaintiffs the same contract terms
the CMC Cardiologists received, a defense that the jury of course may accept at
trial, Brown does not offer any nondiscriminatory reason for an action he maintains
7

Even if the Fifth Circuit language is not binding as the law of the case, Brown’s letter is not
comprehensive enough to overcome the contrary testimony of Dr. Parikh, though that testimony
is rather conclusory. Compare Docket Entry No. 174-5 with Docket Entry No. 281-71 ¶ 16. The
letter references a prior conversation for which no detail is provided, is addressed to and refers to
conversations with only one of the Plaintiffs, and does not specify the terms of any contract offer
that would allow for a comparison of whether the terms were similar to those offered to the CMC
Cardiologists.
17 / 26

never occurred. Plaintiffs’ establishment of a prima facie case thus ends the
McDonnell Douglas inquiry, and this claim survives summary judgment.
Claim #4:

Brown removed Plaintiffs from the Chest Pain Center
Committee.

Plaintiffs allege that Brown removed them from the Chest Pain Center
Committee, an interdisciplinary committee that addresses issues concerning
CMC’s Chest Pain Center and meets approximately four times per year. Brown
asserts that he never removed Plaintiffs from the Committee, but that their poor
attendance and disruptive conduct would have justified such removal if it did
occur.
As comparators on this claim, Plaintiffs offer several non-Indian hospital
staff members who serve on the Chest Pain Center Committee. Brown does not
contest that these staff members are similarly situated, but argues that they were
not treated more favorably than Plaintiffs because Plaintiffs were not removed
from the Committee and remain on the Committee roster. Plaintiffs’ affidavits
assert that they stopped receiving notices for the meetings and were no longer
paged to attend them. See Docket Entry No. 281-71 ¶ 14. Plaintiffs have also
submitted a May 2009 e-mail Brown sent to another hospital staff member stating
that “[Plaintiffs] are no longer members of the committee.” Docket Entry No. 15335. This situation presents the classic “he said”/“she said” factual dispute that
precludes summary judgment. Plaintiffs have presented sufficient evidence to
18 / 26

show that they were removed from the Committee while other non-Indian staff
members were allowed to remain. They have met their burden of establishing a
prima facie case of discrimination on this claim.
Brown argues that if Plaintiffs were removed from the Committee, it was
because of their lack of attendance and their disruptive conduct. Plaintiffs have
provided sufficient evidence to demonstrate that this nondiscriminatory reason is
pretextual. The record shows that an altercation occurred between Dr. Taylor, one
of the CMC Cardiologists, and Drs. Chandna and Parikh during a Committee
meeting in January 2008. Dr. Walrod, the Committee Chair at the time, testified in
his deposition that the original draft of the minutes from that meeting listed only
Drs. Chandna and Parikh as being disruptive, and did not include Dr. Taylor.
Docket Entry No. 153-7 at 20–22. Dr. Walrod testified that he refused to sign the
minutes, despite Brown’s desire to use this draft as the official minutes, until the
minutes accurately reflected all of the disruptive parties. Id. at 21–22. Another
hospital staff member testified that one of the CMC Cardiologists was disruptive at
a meeting of a different committee in March 2007, but was not reported for the
disruption, even though Brown reported Plaintiffs’ disruptive conduct during the
January 2008 meeting. See Docket Entry No. 153-11 at 22–23.
In terms of the absenteeism justification, while Plaintiffs had missed four of
the six meetings between January 2008 and the date Brown sent his e-mail, other

19 / 26

members also had less than stellar attendance records but were not removed. See
Docket Entry No. 131-14 (showing that several Committee members attended no
meetings during this time period and that Drs. Taylor8 and Krueger missed two
meetings during this same period).

This evidence, coupled with Brown’s

previously cited general remarks showing discriminatory animus based on
Plaintiffs’ Indian heritage,9 is sufficient to allow a juror to conclude that national
origin discrimination was a motivating factor in Plaintiffs’ removal from the Chest
Pain Committee.
B.

Claims that Do Not Survive Summary Judgment
Claim #1:

CMC and Brown denied Plaintiffs privileges to implant
ICD Devices.

Plaintiffs complain that Brown denied them the privilege of using
Implantable Cardioverter Defibulators (“ICDs”), small devices implanted in the
chest or abdomen that shock the heart to help control life-threatening arrhythmias.
In deciding not to grant ICD privileges to Plaintiffs, who had such privileges at the
other major Victoria hospital, CMC’s Credentials Committee cited Plaintiffs’
failure to meet the Committee’s requirement of performing ten proctored

8

Dr. Taylor’s name does not appear on the 2009 list of Committee members because he was no
longer working at CMC at that time. See Docket Entry No. 313 at 23:22–24:3.
9
Brown’s internal memo is particularly compelling evidence of pretext on this issue because a
position on the Committee could be inferred to be the type of “leadership role” and “influence
over situations that are hospital issues” that Brown was concerned would “change the entire
complexion of the hospital.” See Gaalla, 460 F. App’x at 473.
20 / 26

procedures, which Plaintiffs had provisional privileges to perform. See Docket
Entry Nos. 131-10 ¶ 5; 131-11; 131-12; 131-13.
As comparators on this claim, Plaintiffs offer two non-Indian cardiac
surgeons and three of the CMC Cardiologists. But the problem for Plaintiffs is that
they cannot show they were treated less favorably than these non-Indian physicians
because CMC never granted anyone ICD privileges. Docket Entry No. 131-10 ¶ 5.
Plaintiffs attempt to cite examples in which the Credentials Committee granted
these physicians other privileges, such as for stent and PTCA (a certain type of
coronary angioplasty) procedures. But even if the similarly situated requirement is
read more broadly to allow consideration of these distinct privileges, Plaintiffs still
cannot establish a prima facie case. Plaintiffs make mostly conclusory allegations
that these other privileges were granted to the non-Indian physicians “almost
overnight” or without meeting American College of Cardiology guidelines.
Docket Entry No. 153-30 ¶ 4. But they are unable to show that the Committee
granted these, or any other, privileges in a case in which a physician failed to
satisfy the requirements of CMC’s Credentials Committee. This claim accordingly
fails because Plaintiffs do not show that they were treated less favorably than
similarly situated individuals.
Claim #6:

21 / 26

Brown initiated reverse investigations of Plaintiffs when
they lodged patient care concerns.

What Plaintiffs characterize as a “reverse investigation” involved the
following sequence of events: In mid-2009, Dr. Gaalla filed a complaint with the
Peer Review Committee about the care that Dr. Yahagi, a cardiac surgeon,
provided patient L.Z. In response, the Committee reviewed all of the treatment
L.Z. received, including that provided by both Drs. Yahagi and Gaalla. Docket
Entry No. 132-1 ¶ 3. As Dr. Parma, the Chair of the Committee, notified Dr.
Gaalla:
The Peer Review Committee met this morning and considered your
complaint of May 26, 2009 concerning the care of [L.Z.] and the
surgery by Dr. Yahagi. The Peer Review Committee does not agree
with your accusations regarding Dr. Yahagi and, furthermore, has
decided to engage outside expertise to evaluate the entire surgical and
medical management of [L.Z.].
Docket Entry No. 153-55. The Committee ultimately concluded that there was
some basis to criticize Dr. Gaalla’s treatment, but it took no disciplinary action
against him. Docket Entry No. 132-1 ¶ 6.
Because the Committee examined the entirety of L.Z.’s treatment in
response to a complaint about one of his physicians, which Brown contends is the
ordinary procedure when the Committee investigates a complaint, Plaintiffs must
show that other physicians were not investigated when they made complaints even
though they were involved in treating the patient. No such evidence is in the
record. Plaintiffs cite examples in which transfers of patients to other hospitals did
not trigger an investigation, see Docket Entry No. 388 at 9, but the undisputed
22 / 26

evidence shows that it was Dr. Gaalla’s complaint that led to the investigation at
issue. Plaintiffs have not shown that similarly situated physicians were treated
more favorably with respect to investigations, so this claim must be dismissed.10
Claim #7:

Dr. Chandna was removed from the Peer Review
Committee.

Dr. Chandna alleges that in July 2009, after he had served a two-year term
on the Peer Review Committee, Brown removed him from the Committee. Brown
disputes the “removal” terminology, contending that instead Dr. Chandna was not
reappointed, and that the refusal to reappoint was due to Dr. Chandna’s poor
attendance. See Docket Entry No. 267 at 17. The debate over semantics does not
affect resolution of this claim.

Whether termed a “removal” or “failure to

reappoint,” the key inquiry remains whether Chandna was treated less favorably
than other similarly situated members of the Committee.
Dr. Chandna fails to show that non-Indian members of the Peer Review
Committee with similar attendance rates remained on the Committee. Brown
explained to Dr. Chandna that he was not considered for reappointment because of
his “frequent absences during the previous year.”

Docket Entry No. 153-29.

Committee members are required to attend 25% of meetings each year. Docket
Entry No. 153-31. During the year prior to Brown’s decision, four Peer Review
10

Brown also argues that dismissal of this claim is warranted because there is no evidence that
he had any involvement in the Committee’s investigation. The Court agrees based on a review
of the record. This provides and alternative basis for dismissal of the investigation claim.
23 / 26

Committee meetings were held and Dr. Chandna attended none of them. See
Docket Entry No. 132-2. Two Committee doctors with better attendance records
than Dr. Chandna did not remain on the Committee. See id.; Docket Entry No.
321-5.

None remaining on the Committee shared Dr. Chandna’s 0% attendance

record for the preceding year. See Docket Entry Nos. 132-2; 321-5. Plaintiffs
therefore cannot meet their prima facie burden on this claim. See Lee, 574 F.3d at
260 (explaining that comparators must have “essentially comparable violation
histories” (citation omitted)).
Claim # 8: Brown allowed Dr. Yahagi to refuse to provide Plaintiffs
with surgical standby for a month.
Plaintiffs complain that they were discriminated against in January 2010,
just one month prior to the passage of the Resolution that lies at the heart of this
case, when Brown allowed CMC’s cardiac surgeon, Dr. Yahagi, to refuse to
provide Plaintiffs with surgical standby. Dr. Yahagi was the only cardiovascular
surgeon on staff at CMC during this time, so Dr. Yahagi’s refusal prevented
Plaintiffs from performing any procedure at CMC that required a cardiac surgeon
on standby. Although the letter to Plaintiffs notifying them of this change is signed
only by Dr. Yahagi, see Docket Entry No. 153-66,11 deposition testimony

11

In the January 14, 2010 letter, Dr. Yahagi states that “For the past many years, I have been
providing standby coverage for angioplasties but have been disappointed with the inconsistency
of your not referring those same patients to me when they need my services. It seems best, I
think, if I no longer provide standby coverage.” Docket Entry No. 153-66.
24 / 26

establishes that Brown was aware of Yahagi’s decision because he assisted in
drafting the letter, see Docket Entry No. 153-84 at 3.
Plaintiffs identify the CMC Cardiologists as suitable comparators who were
treated more favorably in that they always received standby support. But the Fifth
Circuit characterized this claim as challenging Brown’s act of allowing Dr. Yahagi
to refuse to provide Plaintiffs with surgical standby, as seems necessary to tie this
action to Brown. See Gaalla, 460 F. App’x at 479. In determining whether
Plaintiffs have met their prima facie burden it is thus necessary for them to show
that there was at least one instance in which Brown overrode a doctor’s refusal to
provide another doctor with surgical support. No such evidence is in the record.
Accordingly, Plaintiffs cannot establish a prima facie case and dismissal of this
claim is warranted.12

12

Even if Plaintiff’s characterization of the “similarly situated, but treated less favorably”
inquiry were correct, Brown has a nondiscriminatory justification because CMC regulations
require cardiologists to secure their own surgical standby; Dr. Yahagi is not required to provide
this service. See Docket Entry No. 131-21 ¶ 13. Plaintiffs have not identified any evidence to
show that reliance on this hospital policy was pretextual, other than Brown’s general comments
showing discriminatory animus that alone are not sufficient to establish pretext under Fifth
Circuit law. See Palasota, 342 F.3d at 577–78.
25 / 26

IV. CONCLUSION
For the reasons detailed above, Brown’s motion for summary judgment
(Docket Entry No. 267) is GRANTED IN PART AND DENIED IN PART. 13
The following claims against Brown withstand summary judgment under the
McDonnell Douglas analysis and will remain in the case:
(1)

Plaintiffs’ ability to receive calls when a patient presented to the
emergency room was restricted.

(2)

Brown amended the protocols for the Chest Pain Center to exclude the
Plaintiffs.

(3)

Brown entered into contracts with a non-Indian cardiology group.

(4)

Brown removed Plaintiffs from the Chest Pain Center Committee.

The other claims are dismissed.
IT IS SO ORDERED.
SIGNED this 2nd day of January, 2013.

___________________________________

Gregg Costa
United States District Judge

13

Also pending are Plaintiffs’ motions to strike portions of Brown’s summary judgment
evidence (Docket Entry Nos. 282 & 326). Because the Court concludes that the evidence
Plaintiffs seek to strike does not alter the above McDonnell Douglas analysis that the Fifth
Circuit directed this Court to conduct, these motions to strike are DENIED as moot.
26 / 26