WILLIAM G. CAMBRIDGE, District Judge.
This matter is before the Court on Defendant's motion for summary judgment (filing 18). Upon consideration of the pleadings, briefs, evidence, and case law, the Court finds that the motion should be granted.
BACKGROUND
The plaintiff is a medical doctor who is a native of and received her medical training in Iran. After practicing medicine in Iran for a number of years, she emigrated to the United States in 1991 at the age of 35. She worked in the medical field for several years while preparing for the U.S. medical license exam. After passing all required parts of that exam, Dr. Madani began applying in late 1995 for medical residency programs for the 1996-97 academic year, concentrating particularly on programs in anesthesiology. She received no offers during the initial round of residency matching. However, the director of residency programs in the University of Nebraska Medical Center's anesthesia department was quite impressed with Dr. Madani's experience and qualifications, and began efforts to recruit her.
Because anesthesiology residents must first have one year's experience in primary care medicine, the anesthesia department arranged to have Dr. Madani fulfill her primary care requirement with the pediatric department. Dr. Madani was hired in addition to, and somewhat later than, the regular class of pediatric residents, so she began her employment on August 1, 1996, while her colleagues had started July 1. Dr. Madani signed the same contract and was expected to perform the same duties as other first-year pediatric residents. Dr. Terence L. Zach, who directed the pediatric residency program at the time, described those job duties as follows:
Well, a first-year resident is a licensed physician and can write orders without them being signed. So that's the difference between a medical student and a first-year resident. So the job would depend upon what monthly rotation they were assigned to. But in general, it's to take care of patients, do histories, perform a physical exam, make a diagnosis or a differential diagnosis, a list of possibilities, and then come up with a management plan that they then would run by their supervisory resident or faculty attending. And so it's a process of transition from medical school to board certification.
Def.'s Evid. in Supp. of Mot. for Summ. J., Dep. of Terence L. Zach, M.D., 12:10-22 (filing 20).
Dr. Madani's first rotation, for the month of August 1996, was to St. Joseph's Hospital outpatient clinic and inpatient service. The parties disagree as to her assignment there: Dr. Madani says she was directed to simply observe and learn from the other residents that month, while Dr. Zach says she was expected to do the same work as other residents by seeing patients and preparing diagnoses and treatment plans under the supervision of a more senior resident physician. The faculty members who evaluated her work at the clinic felt she needed improvement in all areas of her performance. The narrative summary of her performance indicates: "Very slow start. Background and skills in Pediatrics limited but she was trying. Has not adjusted yet to working with everyone." Def.'s Evid. in Supp. of Mot. for Summ. J., Dep. of Badralsadat Madani, Ex. 4 (filing 20).
Near the end of August, Dr. Zach met with Dr. Madani to discuss her transition into the pediatric residency program, and in particular the difficulties she was experiencing. They talked about the stressful nature of being a resident, and about the personality conflict Dr. Madani had with one of her supervisory faculty members on the clinic rotation. Dr. Zach made an appointment with a UNMC psychologist for her to help her deal with the stress. However, the overarching issue at the meeting was Dr. Zach's concern about Dr. Madani's professional abilities. He memorialized those concerns, and his resulting decision, in a letter to Dr. Madani following the meeting:
. . . I have heard from a number of residents and both [supervising faculty members on the clinic rotation] that it is their impression that you have not yet mastered the basic skills necessary to function as a first year resident.
Specifically, there has been concern about your fund of knowledge in pediatrics, ability to work-up patients, write adequate notes and histories and physicals and communicate information to your peers and supervisors. Because of this I have decided to place you on probation.
Letter of August 23, 1996 from Zach to Madani, Madani Dep., Ex. 5 (filing 20).
Under university guidelines, the probationer's performance must be reviewed within three months following the initiation or extension of probation. Upon review, the department may extend the academic probation, end it, or dismiss the resident. Dr. Madani's probationary period began August 23, 1996, and was to be formally reviewed in early November 1996.
In September, Dr. Madani was assigned to the St. Joseph's Hospital/Boys Town inpatient service. The attending physicians who evaluated her performance on that rotation felt she needed improvement in all areas, with one of the evaluators even rating her clinical ability as unsatisfactory. In the narrative portion of the report, the supervisors noted:
Badra was very nervous throughout the month. She appeared to be more concerned about our impression of her than about taking good care of patients. We feel she needs an M4 year. The staff reported having trouble communicating with her. We do not feel comfortable having her care for pediatric patients without being closely supervised. She was sometimes thorough but did require much personal attention. She made a great deal of progress during the month though she was not well organized, not very knowledgeable of medications and disease processes. She seemed to have trouble understanding what was required and appeared to be very deficient in her knowledge base.
Id., Ex. 7.
On October 4, Dr. Zach met with Dr. Madani to review the first two months of her residency. He expressed his concerns about her performance, having reviewed her August and September evaluations and having spoken with the doctors who supervised her rotations. In a letter to Dr. Madani reiterating the discussion, Dr. Zach wrote:
It is my impression . . . that you have not yet demonstrated a level of clinical ability or medical knowledge that we expect of our first year residents. This is why you remain on probation. . . . [I]t is important for you to know that you must begin to demonstrate that you are able to function at the level that we expect of all our pediatric interns from this point forward. Most specifically, attendings have noted that you have not demonstrated an ability to formulate and communicate a differential diagnosis and therapeutic plan. There has been concern about your ability to do the basic skills of gathering data and communicating it to other members of the healthcare team.
. . . [I]t will be necessary for you to be able to demonstrate that you are able to function at a PL-I level if you are to receive further credit during your internship year.
Letter of Oct. 4, 1996 from Zach to Madani, Madani Dep., Ex. 8 (filing 20).
For her October rotation, Dr. Madani was assigned to St. Joseph's Hospital Newborn Intensive Care Unit. Her supervisor there graded her medical knowledge as unsatisfactory, her relationship with patients and staff as good/average, and everything else as needing improvement. In the narrative report, the faculty member noted: "Language skills and medical knowledge are major weak spots. I did note moderate amount of improvement with presentations over the month. Unfortunately, I was unable to observe an admission or other technical skills. I would still be uncomfortable allowing her to take call in NICU unsupervised."Id., Ex. 9.
The residency director for UNMC's anesthesia department, who had recruited Dr. Madani to the medical center, supervised her anesthesiology rotation in November 1996. He rated her as good/average in all categories except medical knowledge, which he rated as unsatisfactory. He noted that Dr. Madani's "basic problem is inadequate knowledge base." Id., Ex. 10.
Shortly after completing her anesthesiology rotation, Dr. Madani met with Dr. Zach to review her probationary status. At that time, Dr. Zach decided to extend the academic probation for another three months.
As I have mentioned to you in prior conversations, in order to be taken off of probationary status you will need to demonstrate that you are functioning at a standard that we expect of our first year house officers. Specifically, you will need to demonstrate satisfactory clinical abilities in diagnoses and management of pediatric patients.
Letter of Dec. 4, 1996 from Zach to Madani, Madani Dep., Ex. 11 (filing 20).
At the same time, because Dr. Madani believed their professional relationship had deteriorated to the point that Dr. Zach could not fairly assess her abilities, Dr. Zach removed himself from her evaluation process. The chairman of the UNMC pediatrics department agreed to appoint a small committee to review Dr. Madani's monthly progress and make decisions as to her probationary status. Id.
Dr. Madani's hematology/oncology rotation in December resulted in another problematical evaluation. The faculty member rated her medical knowledge and clinical ability as unsatisfactory, and her quality of work and dependability/reliability as needing improvement. Her overall performance as a resident was graded on the border between "unsatisfactory" and "needs improvement." Id., Ex. 12. The report on her pulmonary rotation that month was even worse. Her supervisor rated her clinical ability, work quality, and dependability/reliability as unsatisfactory, and said her medical knowledge and patient/staff relationships needed improvement. Her overall performance was considered unsatisfactory. Id., Ex. 13.
By early January 1997, the chairpersons of the Creighton and UNMC pediatrics departments had decided to terminate Dr. Madani's employment because of unsatisfactory academic performance. In a letter dated January 6, 1997, Dr. Buehler from UNMC and Dr. Chartrand from Creighton reiterated the difficulties Dr. Madani had experienced in her rotations and the reasons she had been placed on academic probation. They explained that the committee formed after Dr. Zach removed himself from the case had conducted an independent review of Dr. Madani's residency file. "Based upon the review, the committee members unanimously decided that your basic knowledge level as demonstrated during your rotations from August 1 through December 31, 1996, is inadequate for your continuation in the first year residency in pediatrics." Letter of Jan. 6, 1997 from Buehler Chartrand to Madani, Madani Dep., Ex. 14 (filing 20).
Dr. Madani requested and received a hearing before the College of Medicine's Academic Appeals Committee, which upheld the termination. Id., Ex. 17. Dr. Madani then asked the dean of the medical college to appoint an independent party to conduct a blind review of her notes, hospital records, and supervisors' records in order to fairly evaluate her level of knowledge in comparison to other first-year residents. Id., Ex. 20. The dean denied her request, saying the committee's termination decision was final and would not be the subject of any further action by the medical college. Id., Ex. 21.
Dr. Madani then sought redress via other channels. She contacted the Accreditation Council for Graduate Medical Education; a Nebraska senator; and the state and federal equal opportunity commissions. Id., Exs. 22-24, 26. The Nebraska Equal Opportunity Commission ("NEOC") found insufficient evidence to support her charges of national origin discrimination, sexual harassment, and retaliation. On June 30, 1998, she filed the present lawsuit against the governing body of the University of Nebraska alleging gender discrimination, sexual harassment, national origin discrimination, wrongful discharge, and violations of state anti-discrimination statutes. The Board of Regents has now moved for summary judgment on the basis of lack of any genuine factual issue and lack of jurisdiction.
SUMMARY JUDGMENT STANDARD
The question before the district court is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Morgan v. Rabun, 128 F.3d 694, 696 (8th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1809 (1998); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).
Summary judgment is an extreme and treacherous device, which should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy, and unless the other party is not entitled to recover under any discernible circumstances. Vette Co. v. Aetna Cas. Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). In ruling on a motion for summary judgment, the district court must view the facts in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences to be drawn from the record. Id.; Widoe v. District No. 111 Otoe County Sch., 147 F.3d 726, 728 (8th Cir. 1998); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). Even if the district court is convinced that the moving party is entitled to judgment, the exercise of sound judicial discretion may dictate that the motion should be denied, so the case may be fully developed at trial. McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979); Franklin v. Lockhart, 769 F.2d 509, 510 (8th Cir. 1985).
Essentially, the test is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52. Moreover, although under Federal Rule of Civil Procedure 56 due deference must be given to the rights of litigants to have their claims adjudicated by the appropriate finder of fact, equal deference must be given under Rule 56 to the rights of those defending against such claims to have a just, speedy and inexpensive determination of the action where the claims have no factual basis. Celotex Corp. v. Catrett, 477 U.S. at 327.
The court's role is simply to determine whether the evidence in the case presents a sufficient dispute to place before the jury.
At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. Rather, the court's function is to determine whether a dispute about a material fact is genuine. . . . If reasonable minds could differ as to the import of the evidence, summary judgment is inappropriate.
Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (internal citations omitted). See also Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999) (court's function is not to weigh the evidence to determine truth of any factual issue).
A genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, meaning a reasonable jury could return a verdict for either party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The Eighth Circuit Court of Appeals has repeatedly cautioned that summary judgment should seldom be granted in the context of employment actions, as such actions are inherently fact-based.Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997); Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir. 1995). "Summary judgments should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991) (citing Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert.denied, 488 U.S. 1004 (1989)). "Because discrimination cases often turn on inferences rather than on direct evidence, [the court must be] particularly deferential to the nonmovant." Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1205 (8th Cir. 1997) (citingCrawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994)).
DISCUSSION
Gender discrimination
Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
To establish a claim under this section, a plaintiff must show that the employer's actions were, more likely than not, motivated by the plaintiff's race, color, religion, sex, or national origin. To recover on the claim, a plaintiff must establish that one of these criteria was a motivating factor in the employer's adverse employment decision. The allocation of the burden of proof between the parties depends on whether the case is characterized as a "pretext" case or a "mixed-motives" case.
"[T]he premise of [a pretext case] is that either a legitimateor an illegitimate set of considerations led to the challenged decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 247 (1989) (emphasis in original). The plaintiff carries the burden of proving a prima facie case of discrimination by demonstrating (1) membership in a protected class; (2) qualification for the job held; (3) an adverse employment decision; and (4) the adverse employment decision occurred under circumstances which create an inference of unlawful discrimination. Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 760 (8th Cir. 1998). The defendant must then rebut the presumption of discrimination by showing legitimate non-discriminatory reasons for its decision. Upon such a showing, the plaintiff must establish that the employer's reasons are pretextual and the plaintiff has been a victim of intentional discrimination. Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir. 1993).
In contrast, a "mixed motives" case arises when an employment decision was "the product of a mixture of legitimate and illegitimate motives." Price Waterhouse v. Hopkins, 490 U.S. at 247. A mixed motives analysis requires the plaintiff to meet the threshold burden of showing that an illegitimate criterion was a motivating factor in the employer's decision to terminate her employment. If the plaintiff makes this showing, the burden then shifts to the employer to show that it would have terminated the employee even without the illegitimate criterion. Cram v. Lamson Sessions Co., 49 F.3d 466, 471 (8th Cir. 1995) (citing Radabaugh, 997 F.2d at 448). To establish a mixed-motives case, "the plaintiff must present `evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'" Radabaugh, 997 F.2d at 449 (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992)).
In the context of the summary judgment motion, Dr. Madani is treating this as a mixed-motives case. She says her evidence directly reflects intentional discrimination. As noted above, direct evidence is evidence of conduct or statements by company decisionmakers that is sufficient for a factfinder to find that a discriminatory attitude was more likely than not a motivating factor in the employer's decision. "Such evidence might include proof of an admission that gender was the reason for an action, discriminatory references to the particular employee in a work context, or stated hostility to women being in the workplace at all." Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). As direct evidence of a discriminatory attitude, Dr. Madani relies on her statements that Dr. Zach once touched her inappropriately, repeatedly asked her to go out with him, and insinuated that if she did not cooperate, he would send her back where she came from. From this she extrapolates that Dr. Zach in essence "infected" all of her supervising doctors and the committee members with his discriminatory attitude, resulting in her poor evaluations and her eventual dismissal from the program.
The Court disagrees with Dr. Madani's characterization of her claim, and believes it should be analyzed as a pretext case. Nevertheless, if it is a mixed-motives case, Plaintiff's "direct evidence" is insufficient to support the inference that such an attitude was a motivating factor in the employer's termination decision. The record contains no direct evidence that anyone with whom Plaintiff worked, let alone supervisors or managers, conducted themselves in any fashion or made any statements or used any language which would indicate that women or Iranians as a group were unwelcome in the workplace or were thought less of than other employees. Dr. Madani's theory that Dr. Zach, to further his personal motives, persuaded each of the supervisory physicians on her rotations to give her negative evaluations and, after removing himself from a decision-making position regarding her academic status, persuaded the review committee to terminate her contract, simply is not credible. Therefore, I find as a matter of law that Plaintiff has not made the threshold evidentiary showing required for a mixed-motives analysis of the case.
When a plaintiff fails to establish that an illegitimate criterion was the motivating factor in the employer's decision, the analysis proceeds as a pretext case. As noted above, under theMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), line of cases, a plaintiff claiming discriminatory treatment is required to establish a prima facie case adequate to permit an inference of discrimination. The onus then shifts to the defendant to produce evidence sufficient to rebut the prima facie case by showing legitimate non-discriminatory reasons for termination. Plaintiff must then demonstrate that Defendant's explanation is pretextual and that the decision was motivated by intentional discrimination.
The Court must first determine whether Plaintiff has presented a prima facie case of gender discrimination. First, Dr. Madani is a female and therefore a member of a protected class. Second, the evidence indicates she was perceived to be qualified for the position when she was hired. The school's ultimate assessment of her abilities will be discussed later, but for purposes of this analysis I will assume Dr. Madani has met the second element of the prima facie case. Third, her employment with the university was terminated. Because of the nature of the residency program, Plaintiff's spot in the class was not filled. For purposes of this motion, I find that Dr. Madani has established a prima facie case of discrimination.
At this point, the defendant has the burden of showing a legitimate and non-discriminatory reason for the adverse employment decision made with respect to Plaintiff. UNMC maintains that Dr. Madani's inability to master the minimum abilities expected of a first-year pediatric resident justifies the decision to terminate her employment. Employers are not required to tolerate incompetent employees, so the termination of one whose abilities do not meet the employer's expectations does not evidence a discriminatory intent. Because UNMC has come forward with an explanation for its employment decision regarding Plaintiff that is non-discriminatory on its face, the burden now shifts back to Plaintiff to demonstrate that an issue of fact does remain and that the university's articulated reason for the termination is in fact a pretext for gender-based discrimination.
The Supreme Court in St. Mary's Honor Center explains the "issues of fact" inquiry as follows:
At the close of the defendant's case, the court is asked to decide whether an issue of fact remains for the trier of fact to determine. None does if, on the evidence presented, (1) any rational person would have to find the existence of facts constituting a prima facie case, and (2) the defendant has failed to meet its burden of production — i.e., has failed to introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action. In that event, the court must award judgment to the plaintiff as a matter of law. . . . If the defendant has failed to sustain its burden but reasonable minds could differ as to whether a preponderance of the evidence establishes the facts of a prima facie case, then a question of fact does remain, which the trier of fact will be called upon to answer.
If, on the other hand, the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant. . . . The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture. . . . The defendant's "production" (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proved "that the defendant intentionally discriminated against [her]. . . ."
509 U.S. at 509-11 (emphasis in original) (citations and footnote omitted).
To meet this burden, the plaintiff directs the Court's attention to the situation of a male resident who was put on probation by Dr. Zach. That resident was not terminated, however, and was taken off probation upon exhibiting improved performance in his rotations. Dr. Madani argues that because two similarly situated employees were placed on academic probation for possessing inadequate medical knowledge, yet only the female was fired because of it, UNMC unlawfully discriminated against her.
This argument, however, fails to consider that the evidence before the Court indicates that Dr. Madani and the male resident were both given the opportunity to bring their performances up to par. The male resident apparently did so and satisfactorily completed the residency program. Dr. Madani, on the other hand, showed little improvement in her capabilities and blamed Dr. Zach for her failures. This is not a situation where the two residents, being equal, were treated differently. Rather, the fact that Dr. Madani continued to perform at a sub-standard level during her probation, while the male resident addressed his problems and showed improvement, discredits her claim that she was discriminated against as compared to the man. Thus, even if the Court were to believe that Defendant's proffered reason for termination is pretextual, the Court does not believe that Plaintiff's evidence demonstrates intentional discrimination by UNMC.
The evidence clearly indicates that Dr. Madani's professional abilities was consistently deficient. Despite being given numerous opportunities to meliorate her performance, she failed to do so. Dr. Zach offered guidance and assistance to her in meeting the demands of a pediatric residency, but she rejected the help. When Dr. Zach extended her probation for an additional three months, Dr. Madani accused him of unfairness and told him she hated him. After considering her perspective on his ability to fairly assess her progress, Dr. Zach removed himself from her evaluation process and turned it over to a committee, which reviewed the documentary evidence and promptly dismissed Dr. Madani from the program.
Dr. Madani now maintains that Dr. Zach orchestrated her termination because she refused to embark on a personal relationship with him. He denies these accusations. Although the university has a policy against sexual harassment, Dr. Madani did not make the university aware of her allegations of sexual harassment until she filed this lawsuit, ostensibly because of a cultural taboo against speaking of such matters. At her deposition, she described to the university's attorney her personal reluctance to raise the topic at her appeal hearing:
Q: And it is correct you didn't discuss sexual harassment at the hearing?
A: I told the hearing that — I told the same thing that I believe this is a conspiracy by Dr. Zach against me. And a doctor who was chairman, he asked me, "Why? What do you think was his motivation?" And I couldn't say. I mean, how could I say in front of eight, ten doctors in there? I just couldn't, so I kept quiet. . . . But still, as I said, it's very, very hard for me to just talk in — about these issues.
* * *
Q: It was my understanding that when you had your hearing at the university in January of 1997 you said that you didn't mention sexual harassment because it was too difficult for you to mention; was that right?
A: Uh-huh, yeah.
Q: What changed so that in March of 1997 you were able to make that [NEOC] complaint [charging sexual harassment and national origin discrimination]?
A: Actually, that complaint was — I had meeting with NEOC much earlier than that; I just didn't sign it. As I said, I had met with them sometimes in January, I believe it was, or early February. The reason I was comfortable was because a female interviewing [sic] me. . . .
Q: In here you're able to say that because you refused Dr. Zach's sexual advances, he no longer wanted me to complete my residency?
A: Right.
Q: So you were able to communicate that to the Nebraska Equal Opportunity Commission?
A: Yeah. As I said, they were female and I was comfortable more comfortable to talk to them.
Q: There were female faculty at the University of Nebraska Medical Center, weren't there?
A: Yeah.
Q: Did you ever discuss it with any of the female faculty, your complaint that Dr. Zach sexually harassed you?
A: No.
Madani Dep. 93:9-20; 104:18-106:9.
Dr. Madani appears to be attempting to turn this lawsuit into her word against Dr. Zach's in order to raise an issue of fact. However, the weight of the evidence is against her. The university has strong evidence that Dr. Madani could not perform the functions expected of a first-year resident, even after being counseled. This evidence outweighs the insubstantial evidence Dr. Madani provides regarding her alleged victimization. Her lack of evidence to support her allegations and her marked inability to recall, in any but the vaguest of terms, conversations and events directly bearing on her claims tend to detract from her credibility. See Johnson v. Baptist Med. Ctr., 97 F.3d 1070 (8th Cir. 1996). This finding is not an attempt by the Court to invade the province of the factfinder. Rather, this is simply a determination that no genuine factual dispute exists in this case because no reasonable jury could return a verdict for the plaintiff on the facts of this case.
Federal courts are not vested with authority to sit as "super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination." Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995);Walker v. ATT Tech., 995 F.2d 846 (8th Cir. 1993) (Employer entitled to jury instruction that employer may exercise business judgment in making personnel decisions, so long as such decisions are made in nondiscriminatory manner); Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir.), cert. denied, 519 U.S. 867 (1996) (same); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir. 1996) (Court may not second-guess employer's personnel decisions unless such decisions are based on unlawful discrimination).
Most significantly, however, as described in detail above, it is clear the plaintiff has not presented sufficient evidence to allow a reasonable trier of fact to infer that intentional discrimination was the actual reason for her termination. This failure to create a genuine issue of material fact as to whether UNMC intentionally discriminated against Plaintiff dooms Plaintiff's disparate treatment claim and requires the entry of summary judgment in favor of the university on Count I of the complaint.
Wrongful discharge on basis of gender
Dr. Madani alleges she was dismissed from her position in retaliation for refusing Dr. Zach's advances. Title VII prohibits an employer from retaliating against an employee because that individual "has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is applied to retaliation claims. First, the plaintiff must establish a prima facie case of retaliation. The defendant then must rebut the prima facie case by demonstrating that it had a legitimate, non-discriminatory reason for its actions. Finally, the plaintiff is entitled to show that the employer's articulated reason is actually a pretext for discrimination.
To establish a prima facie case of retaliation, the plaintiff must show that (1) she filed a charge of harassment or engaged in other protected activity; (2) her employer subsequently took an adverse employment action against her; and (3) the adverse action was causally linked to the protected activity. Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 968 (8th Cir. 1999). In the present case, Dr. Madani alleges she told certain faculty members that Dr. Zach was harassing her. For purposes of this analysis, I will assume this meets the first prong of the prima facie case. Dr. Madani's employment was terminated, so she clearly has met the second prong of the test. The only question is whether those two events are causally related. Because Dr. Madani allegedly notified two of her faculty members of Dr. Zach's conduct within two or three months before her termination, this is sufficient to establish, at a minimum, a genuine issue of material fact on the elements of the prima facie case. See O'Bryan v. KTIV Television, 64 F.3d 1188, 1193 (8th Cir. 1995) (three months between administrative filing and termination), and Scott v. County of Ramsey, 180 F.3d 913 (8th Cir. 1999) (one month between participation in internal investigation unfavorable to supervisor and termination).
Assuming for purposes of this discussion that Plaintiff has established a prima facie case of retaliation, the burden shifts to the university to rebut the presumption of retaliation and prove a legitimate, non-discriminatory reason for its actions. It has done so, via documented assessments of Dr. Madani's sub-standard work performance. Dr. Zach, the faculty members on each rotation, and the evaluation committee formed after Dr. Zach relinquished decision-making responsibility for Dr. Madani's position all independently concluded that Dr. Madani's performance was unacceptable for a first-year pediatric resident. This is a legitimate reason, with no apparent retaliatory animus, for the adverse employment action imposed on Dr. Madani.
As a result, the burden returns to Dr. Madani to demonstrate that UNMC's reason is merely pretext for intentional retaliation. This is where Plaintiff's claim must fail. There is nothing in the record, beyond Dr. Madani's own speculation, to suggest that Dr. Zach or the university engineered the probation or dismissal actions, or persuaded the faculty members to cooperate in such a charade. Without some proof of the university's retaliatory motive, or evidence to undermine the employer's showing of a legitimate reason for its disciplinary action, Dr. Madani's claim cannot survive summary judgment. Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 550 (8th Cir. 1993); Berg v. Bruce, 112 F.3d 322, 328 (8th Cir. 1997). Therefore, summary judgment will be granted in favor of the defendant on Count II of Plaintiff's complaint.
National origin discrimination
Dr. Madani also alleges that her treatment was due in part to discriminatory attitudes because she is a native of Iran. Discrimination based on national origin is covered by Title VII. "The term `national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). Its analysis is governed by the same McDonnell Douglas v. Green burden-shifting approach used in Part A above. Dr. Madani must demonstrate the same prima facie elements: membership in a protected group, job performance meeting the employer's expectations, adverse employment action, and facts adequate to permit an inference of discrimination. Ghane v. West, 148 F.3d at 981 n. 3. Dr. Madani is of Iranian national origin, which places her in a protected class. See Amirmokri v. Baltimore Gas Elec. Co., 60 F.3d 1126, 1130 (4th Cir. 1995). The remaining elements are the same as for her gender discrimination claim, so for purposes of this motion Dr. Madani will be presumed to have stated a prima facie case of national origin discrimination.
The burden then shifts to the university to demonstrate a legitimate non-discriminatory reason for Dr. Madani's dismissal. As noted above in Part A, it has done so based on Dr. Madani's inadequate job skills. Thus, the burden returns to the plaintiff that she may show the employer's reason to be a pretext for intentional discrimination. Again, Dr. Madani is unable to carry this burden. She offers what is at best hearsay evidence of how other Iranian medical doctors were purportedly treated within the University of Nebraska system. Not every comment that may be construed as indicative of racial hostility is actionable. "[W]e distinguished comments which demonstrate a discriminatory animus in the decisional process or those uttered by individuals closely involved in employment decisions from stray remarks in the workplace, statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process." Radabaugh, 997 F.2d at 449 (internal citations and quotations omitted);Aucutt, 85 F.3d at 1315-16. There is no credible evidence before the Court that Defendants engaged in national origin discrimination either generally or specific to Plaintiff. For that reason, summary judgment must be granted on Count IV of Plaintiff's complaint.
Wrongful discharge on basis of national origin
Dr. Madani's claim of retaliatory discharge based on her national origin is analyzed under the same construct as her gender discrimination wrongful discharge claim in Part B, above. Dr. Madani is less able to meet the elements of the prima facie case on this claim, because there is no evidence that she engaged in any protected activity for which she was retaliated against. Even if she did, and can be presumed to have made a prima facie case, she cannot rebut the defendant's legitimate reasons for dismissing her and show that the university's actions were in any way pretext for intentional discrimination. Therefore, summary judgment must be granted on Count V of Plaintiff's complaint.
State law claims
Because summary judgment has been granted on each of Plaintiff's federal claims, the Court need not address her claims that state anti-discrimination laws were violated as well. By the same token, the defendant's contention that it is immune from suit under Neb. Rev. Stat. § 20-148 has been rendered moot by the Court's decision on the Title VII claims.
CONCLUSION
Because Plaintiff has failed to show that UNMC's reasons for her termination are pretextual and that the decision to fire her was motivated by intentional discrimination, summary judgment in favor of the defendant should be granted on all of her claims.
IT IS ORDERED:
1. Defendant's motion for summary judgment (filing 18) is granted as to each of Plaintiff's claims; and
2. Separate judgment will be entered dismissing this case.