Clinical Remediation and Truthful Medical-Board Reporting, Without Concrete Harm, Do Not Supply an “Adverse Employment Action” or Retaliation Under Title VII

I. Introduction

In Judy Pan v. Temple University Hospital, the U.S. Court of Appeals for the Third Circuit affirmed summary judgment for Temple University Hospital (“Temple”) on claims brought by Dr. Judy Pan, a surgical resident. Dr. Pan asserted sex discrimination, hostile work environment, and retaliation under Title VII, the Pennsylvania Human Relations Act (PHRA), and the Philadelphia Fair Practices Ordinance (PFPO), along with Pennsylvania contract claims.

The dispute arose from Temple’s use of (1) an exam-based academic probation policy tied to performance on the American Society of Plastic Surgery In-Service Examination (“ASPS Exam”), and (2) clinical performance management tools, including “clinical remediation” and a performance improvement plan (“PIP”), following a patient-care incident and other performance concerns. A secondary flashpoint occurred when Dr. Pan answered “no” to a California Medical Board question asking whether she had “ever been placed on probation for any reason,” while Temple answered “yes” in its institutional submission, prompting follow-up questions and Temple’s additional disclosure that Dr. Pan also had been placed on clinical remediation.

The central legal issues on appeal were whether Temple’s actions constituted actionable adverse employment actions for discrimination or retaliation purposes, whether the record supported an inference of sex-based disparate treatment or retaliatory causation, and whether Dr. Pan’s contract claims were barred by a contractual release/immunity clause and by lack of causation/damages.

II. Summary of the Opinion

The Third Circuit affirmed. It held that:

Dr. Pan’s discrimination claims failed because placement on clinical remediation, “without more,” is not an adverse employment action, and truthful reporting to the California Medical Board caused no cognizable harm where the temporary licensing issue stemmed from Dr. Pan’s own nondisclosure.
Dr. Pan did not produce evidence that similarly situated male residents were treated more favorably, nor evidence permitting an inference of discriminatory motive.
Dr. Pan’s retaliation claim failed for lack of an adverse employment action and lack of causation; the timeline defeated temporal-proximity causation and there was no “pattern of antagonism.”
Dr. Pan’s contract claims failed because her employment contract contained a broad release/immunity for disclosures related to clinical competence and related residency matters, and because her alleged harm was attributable to her own misrepresentation rather than Temple’s conduct.
Dr. Pan abandoned her hostile work environment claim on appeal by failing to develop it with argument and citations.

The disposition was designated “NOT PRECEDENTIAL,” meaning it does not bind future Third Circuit panels, though its reasoning may still be cited persuasively in appropriate circumstances.

III. Analysis

A. Precedents Cited

1. Summary judgment framework

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986): The Court invoked Celotex to anchor the Rule 56 principle that once the movant shows an absence of evidence on an essential element, the nonmovant must come forward with specific facts showing a genuine dispute for trial. Here, the panel repeatedly returned to “no evidence” points—no adverse action, no comparator evidence, no causation facts—demonstrating how Celotex operates in employment cases at summary judgment.
Mikula v. Allegheny Cnty., 583 F.3d 181, 185 (3d Cir. 2009) (per curiam): Cited for plenary appellate review of summary judgment. The panel’s de novo review reinforced that Dr. Pan still had to clear the evidentiary thresholds for each element of her claims.

2. Harmonizing Title VII with PHRA/PFPO

Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009): Used for the proposition that PHRA analysis is “identical” to Title VII for these claims.
Szyper v. Am. Med. Resp. Mid-Atl., Inc., No. 21-2372, 2023 WL 2597585, at *2 (3d Cir. Mar. 22, 2023) and Tomaszewski v. City of Phila., 460 F. Supp. 3d 577, 593 (E.D. Pa. 2020): Cited to the same effect, supporting the court’s streamlined approach: if the Title VII claim fails, the PHRA/PFPO counterparts fail as well.

3. “Adverse employment action” and performance management measures

Cole v. Illinois, 562 F.3d 812, 816 (7th Cir. 2009) and Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003): The panel relied on these out-of-circuit authorities for the proposition that placement on a remediation plan, without more, is not an adverse employment action. Their inclusion signals the Third Circuit’s comfort with the broader federal consensus: a corrective measure must carry tangible, material consequences to be actionable.

4. Discriminatory inference and pretext

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994): While Fuentes is best known for its pretext framework under McDonnell Douglas, the panel cited it for the need for evidence that the employer was “motivated” by “discriminatory animus.” Here, Temple’s truthful, responsive disclosure to the Board—especially coupled with supportive letters—was treated as negating an inference of animus.

5. Retaliation elements and causation

Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)): Provided the governing three-part retaliation test (protected activity, adverse action, causal connection). The court’s application turned primarily on the second and third elements.
Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006) and LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007): These cases shaped the causation discussion. The panel used them to reject temporal proximity (a six-month gap) and to note the absence of a “pattern of antagonism” as an alternative route to causation.

6. Appellate waiver/abandonment and hostile work environment baseline

Norman v. Elkin, 860 F.3d 111, 129 (3d Cir. 2017): The court used Norman to hold that Dr. Pan abandoned the hostile work environment claim by not developing it with supporting argument and citations in her opening brief.
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002): Cited for the “abusive working environment” concept; the panel indicated that even if the claim had been preserved, the record did not support the necessary showing.

B. Legal Reasoning

1. Discrimination: remediation and truthful reporting as non-actionable (on this record)

The panel’s discrimination analysis rests on two linked conclusions:

Clinical remediation (and related performance measures) did not qualify as an adverse employment action. By citing Cole v. Illinois and Taylor v. Small, the court treated remediation as a managerial or educational intervention that, absent evidence of material harm (e.g., pay loss, demotion, termination, loss of concrete opportunities), does not meet the adverse-action threshold.
Truthful reporting to a licensing authority did not cause the asserted harm. The court emphasized causation: the Board’s temporary denial of an unrestricted license was attributed to Dr. Pan’s own “fail[ure] to disclose . . . being placed on academic probation,” not Temple’s truthful confirmation. The panel also highlighted mitigating facts—Temple later “lobby[ied]” for an unrestricted license—undercutting any inference that reporting was intended to injure her.

The court then addressed comparative evidence: Dr. Pan did not identify similarly situated male residents treated better. Notably, she was the only third-year resident in her class to fall below the ASPS threshold, and there was no record of other residents failing to disclose probation on a medical board application. The panel further noted that when male residents were later placed on academic probation, Temple also reported those statuses—deflating any claim of sex-based selective reporting.

2. Retaliation: adverse action and causation both missing

Applying Moore v. City of Phila. / Nelson v. Upsala Coll., the court held the retaliation claim failed on two independent grounds:

No adverse employment action. The same adverse-action deficiency that defeated discrimination defeated retaliation: a remediation plan and related PIP steps did not, on this record, constitute actionable retaliation.
No causal connection. The court treated timing as decisive. It emphasized that the remediation notice contemplated an “Academic Remediation” program before Dr. Pan’s later complaint, breaking causal logic for the PIP/remediation track. For the California Board reporting, the court found the disclosure occurred more than six months after Dr. Pan’s last complaint—insufficient “temporal proximity” under Jensen v. Potter and LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n. The panel also found no “pattern of antagonism” and drew the opposite inference: Temple’s supportive conduct (recommendation letters and assistance with licensure) was inconsistent with retaliatory intent.

3. Contract: release/immunity clause and lack of damages/causation

The contract claims failed for two reasons the court treated as independently sufficient:

Broad contractual release. The 2016 contract “extend[ed]” to Temple “absolute immunity” and “release[d]” Temple from “any and all liability” for disclosures related to residency matters, including “clinical competence,” “patient care,” and “education.” The panel treated the disclosure to a medical board as comfortably within that scope.
Causation/damages. Even assuming a guideline breach, the court concluded Dr. Pan’s claimed harm stemmed from her own misrepresentation on the medical board application, not from Temple’s truthful reporting.

4. Hostile work environment: abandoned on appeal

Relying on Norman v. Elkin, the panel held the hostile work environment claim was abandoned because the opening brief did not apply the legal standard to record evidence with citations. The court added that, even if preserved, the evidence did not show an “abusive working environment” under Nat'l R.R. Passenger Corp. v. Morgan.

C. Impact

Although labeled “NOT PRECEDENTIAL,” the opinion is practically significant in three ways:

Performance management in training programs: The decision reinforces that remediation/PIPs in professional training contexts (like medical residency) are not automatically “adverse employment actions.” Plaintiffs will likely need evidence of concrete, material consequences (or a showing that the measure materially altered employment terms) to proceed beyond summary judgment.
Licensing disclosures and causation: The opinion signals that truthful institutional reporting to licensing authorities, especially when paired with supportive advocacy, may be difficult to characterize as discriminatory or retaliatory absent evidence of selective treatment, falsity, or tangible harm attributable to the employer rather than the applicant’s own conduct.
Retaliation causation demands a tight evidentiary link: By emphasizing the six-month gap and the absence of antagonism, the panel underscores that temporal proximity is not a formality; without additional evidence, time gaps can be fatal at summary judgment.

IV. Complex Concepts Simplified

Adverse employment action: A significant negative change in the terms or conditions of employment (e.g., firing, demotion, pay cut). The court treated “clinical remediation” and a PIP as non-actionable here because Dr. Pan did not show a material, concrete harm caused by those measures.
Summary judgment: A pretrial ruling where the court decides there is no genuine dispute of material fact requiring a jury. Under Celotex Corp. v. Catrett, the nonmoving party must point to evidence for each essential element.
Temporal proximity: Using closeness in time between a complaint and an adverse action to infer retaliation. Under Jensen v. Potter and LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, a several-month gap typically requires additional evidence.
Pattern of antagonism: A series of negative acts between the complaint and the challenged action that can help prove causation even when timing is not close. The court found none here and instead found supportive actions.
Pretext / discriminatory animus: Evidence suggesting the employer’s stated reason is not the real reason and that discrimination is the true motive. The court cited Fuentes v. Perskie to emphasize the need for evidence supporting discriminatory motivation, which it found lacking.
Release / immunity clause (contract): Contract language where an employee agrees not to sue (or limits liability) for certain disclosures. The court treated Temple’s clause as broad enough to cover residency-related reporting.
Issue abandonment on appeal: If an appellant does not meaningfully argue an issue with record citations, the appellate court may treat it as waived/abandoned, as in Norman v. Elkin.

V. Conclusion

The Third Circuit’s affirmance in Judy Pan v. Temple University Hospital highlights a demanding evidentiary baseline at summary judgment in discrimination and retaliation cases arising from professional training and credentialing. On this record, “clinical remediation” and related measures were not treated as adverse employment actions; truthful reporting to a medical board—particularly where the applicant’s own nondisclosure drove the licensing complication—did not establish harm, animus, or causation; and retaliation failed for want of both adverse action and a causal nexus. The decision also underscores two practical lessons: contractual releases can be dispositive when broadly drafted and applicable, and appellate claims must be fully developed or they may be deemed abandoned.