Case: 10-20365 Document: 00511475640 Page: 1 Date Filed: 05/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2011
No. 10-20365 Lyle W. Cayce
Clerk
DR. ADRIAN GOLLAS,
Plaintiff - Appellant
v.
UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-3613
Before BARKSDALE, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
In his action against the University of Texas Health Science Center at
Houston (UTH), Dr. Adrian Gollas challenges an adverse summary judgment on
his claim that, in violation of Title VII of the 1964 Civil Rights Act, § 704(a), 42
U.S.C. § 2000e-3(a), UTH terminated his third-year-residency appointment in
retaliation for his opposing sexual harassment. Dr. Gollas contends the district
court erred in ruling, pursuant to Federal Rule of Civil Procedure 56(a) (as
amended, effective 1 December 2010), that he failed to create the requisite
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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genuine dispute of material fact on: whether he established a prima facie case
of retaliation, based on his failure to show either he engaged in protected
activity, or, if he did make such showing, the existence of a causal link between
that activity and his termination; and, whether UTH’s legitimate, non-
retaliatory reasons were pretext for retaliation. AFFIRMED.
I.
Dr. Gollas graduated from medical school in 1992. He later completed a
one-year internship in pediatrics at Texas Tech University Health Science
Center. He has been engaged in the general practice of anesthesiology since
completing a three-year residency in anesthesiology at UTH and Baylor. In
2005, Dr. Gollas decided to become double board certified and was accepted to
UTH’s pediatric residency program; he was appointed as a post-graduate, year-
two resident, due to his prior completion of year one at Texas Tech. This
program required that Dr. Gollas be appointed by UTH to proceed to year three.
His two-year residency began on 2 July 2006 and required monthly participation
in rotations, with performance evaluations at the end of each rotation.
In late 2006, Dr. Gollas’ performance declined; and he received a low
evaluation for his November rotation. The following month, Dr. Crandell, the
program director, and Drs. Cua and Erickson, who both worked in the pediatric
intensive-care unit (PICU), met with Dr. Gollas to discuss their concerns about
his knowledge base, medical decision-making, and poor patient skills. That
same day, Dr. Gollas met with Dr. Crandell and Dr. Schroeder, the pediatrics
chief resident, to discuss a medical student’s allegation that Dr. Gollas made
inappropriate comments to her and touched her inappropriately. A resident
similarly told Dr. Crandell that Dr. Gollas had made an inappropriate comment
to her.
Dr. Gollas’ evaluations improved during his December and January
rotations, however; and, on 1 February 2007, UTH appointed him to his third
year of residency, to begin that July (third-year-residency appointment). But,
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during his February emergency-medicine rotation at Memorial Hermann
Hospital, his performance declined again. He received low scores for that
evaluation; and, Dr. Reichman, the emergency department program director,
stated in Dr. Gollas’ evaluation that his performance fell below that expected of
a resident with his level of training. (As discussed, in addition to seeking to
become board certified in pediatrics, Dr. Gollas is an anesthesiologist.) At a 22
February faculty meeting, it was determined that Dr. Gollas failed his February
rotation and would be required to repeat it. (Dr. Gollas’ poor performance
continued during his March rotation; he failed it as well.)
During the 28 February 2007 night shift, at approximately 3:00 or 4:00
a.m. on 1 March, Dr. Gollas was involved in a shouting match in the pediatrics
emergency-room hallway with Dr. Arroyo, an attending physician, allegedly
concerning Dr. Arroyo’s comments and gestures towards Nurse Garcia, a female.
Dr. Gollas maintains he complained about sexual harassment of Nurse Garcia
by Dr. Arroyo to Drs. McCarthy (emergency department medical director),
Crandell (pediatrics program director), Colasurdo (pediatrics department chair),
and Reichman (emergency department program director); on the other hand,
they provided summary-judgment evidence that Dr. Gollas either did not
complain to them or, if he did, did not complain of sexual harassment, but rather
of Dr. Arroyo’s treatment of him.
Upon learning that Dr. Gollas performed poorly during his February
rotation, combined with his performance in PICU, his treatment of fellow
residents, and episodes of inappropriate behavior, Dr. Crandell (again, pediatrics
program director) recommended to Dr. Colasurdo (again, pediatrics department
chair) that they reconsider Dr. Gollas’ 1 February appointment for another year
of residency, to begin that July. On 16 March 2007, Drs. Crandell and Colasurdo
terminated Dr. Gollas’ third-year-residency appointment; they notified him that
same day.
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In May 2007, Dr. Gollas filed a charge with the EEOC for unlawful
retaliation under Title VII. In November 2008, the EEOC issued him a right-to-
sue letter. Dr. Gollas then filed this action.
The district court granted summary judgment, holding Dr. Gollas failed
to create a genuine dispute of material fact on: whether he established a prima
facie case, based on his failure to show either he engaged in protected activity,
or, if he did make such showing, the existence of a causal link between that
activity and the termination of the third-year-residency appointment; and, in the
alternative, whether UTH’s legitimate, non-retaliatory reasons for terminating
that appointment were pretext for unlawful retaliation. Gollas v. Univ. of Tex.
Health Sci. Ctr. at Hous., No. H-08-3613, 2010 WL 1628996, at *1-2 (S.D. Tex.
20 Apr. 2010).
II.
In district court, UTH claimed Dr. Gollas sued the wrong party. The
district court did not reach that issue. In support of the summary judgment,
UTH raises that issue here. See, e.g., Gulf Island, IV v. Blue Streak Marine, Inc.,
940 F.2d 948, 952 (5th Cir. 1991) (“[W]e are free to affirm the dismissal on any
ground presented to the district court for consideration, even though it may not
have formed the basis for the district court’s decision”. (citation omitted)).
Because, for the following reasons, summary judgment was proper, we need not
reach this wrong-defendant contention.
A summary judgment is reviewed de novo, “view[ing] facts and inferences
in the light most favorable to the [nonmovant]”. Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 762 (5th Cir. 2001) (citation omitted). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law”. F ED. R. C IV . P. 56(a). The nonmovant’s burden is not satisfied by
“conclusory allegations, speculation, and unsubstantiated assertions”. Ramsey
v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation and internal quotation
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marks omitted). Along that line, plaintiff’s subjective belief, without more, that
an adverse employment action was retaliatory is insufficient to survive summary
judgment. E.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000). A genuine dispute of material fact exists if the summary-judgment
evidence is such that a reasonable juror could return a verdict in favor of the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where, as here, plaintiff produces only circumstantial evidence of
retaliation, the well-known McDonnell Douglas burden-shifting framework
applies. E.g., Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir.
2001); see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Although originally applied in a Title VII disparate-treatment action, this
burden-shifting framework applies as well in Title VII retaliation actions. Long
v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996); see McDonnell Douglas Corp.,
411 U.S. at 802-04.
Under this framework, the initial burden rests on plaintiff to establish a
prima facie case of retaliation. Long, 88 F.3d at 304. He must show: (1) his
conduct constituted protected activity; (2) an adverse employment action against
him following that conduct; and (3) a causal link between that conduct and that
adverse action. E.g., Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512,
519 (5th Cir. 2001). An employee engages in protected activity by: “oppos[ing]
any practice made an unlawful employment practice by this subchapter, or . . .
ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in
an investigation, proceeding, or hearing under this subchapter”. 42 U.S.C.
§ 2000e-3(a). Dr. Gollas contends his conduct falls within the first clause:
opposition. The parties do not dispute that he suffered an adverse employment
action.
If plaintiff establishes a prima facie case (including the causal-link
element), the burden shifts to defendant to produce a legitimate, non-retaliatory
reason for its adverse employment action. McDonnell Douglas Corp., 411 U.S.
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at 802. Defendant’s burden is one of production, not persuasion. Patrick v.
Ridge, 394 F.3d 311, 315 (5th Cir. 2004); see also Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). If defendant satisfies its burden, it shifts
back to plaintiff to show defendant’s reasons were pretext for unlawful
retaliation; that is, but for the protected activity, the adverse employment action
would not have occurred. See, e.g., Strong v. Univ. Healthcare Sys., LLC, 482
F.3d 802, 806 (5th Cir. 2007); Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 409 (5th Cir. 1999).
As discussed supra, to survive summary judgment, plaintiff must show “a
conflict in substantial evidence on the ultimate issue of retaliation”. Sherrod v.
Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998) (citation omitted).
“Evidence is substantial if it is of such quality and weight that reasonable and
fair minded persons in the exercise of impartial judgment might reach different
conclusions.” Id. (citations and internal quotation marks omitted). Re-stated,
Dr. Gollas must show evidence sufficient to create a genuine dispute of material
fact: whether reasonable minds could differ on the ultimate issue of retaliation.
Prior to UTH’s summary-judgment motion, Dr. Gollas filed in district court
declarations of Nurse Garcia and Marc Mansueto, who was working at Memorial
Hermann Hospital in the pediatric emergency room at the time of the incident.
Also, in response to the district court’s order on production, UTH filed
statements from Drs. King, Arthur, Houser, Atkuri, and Williams regarding
their personal observations of Dr. Gollas’ performance in the pediatric
emergency room.
With its summary-judgment motion, UTH provided the following
additional evidence, inter alia: depositions of Drs. Gollas, McCarthy, Crandell,
and Reichman; pediatrics end-of-rotation evaluations from 1 July 2006 through
2 April 2007; the claimed 1 March 2007 letter from Dr. Gollas to Dr. McCarthy
allegedly complaining of sexual harassment (“claimed” because neither Dr.
McCarthy nor Dr. Reichman (to whom it was copied) remembers receiving it);
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several handwritten notes by Dr. Crandell to Dr. Gollas’ file; a 6 August 2007
letter from Dr. Reichman to the accreditation council for graduate medical
education (ACGME); declarations of Drs. Koerner and Colasurdo; and
statements from doctors who worked with Dr. Gollas, including Drs. Koerner
and Oakes. In his opposition, Dr. Gollas provided, inter alia, the following
summary-judgment evidence: a letter from Dr. Robinson to Dr. Reichman,
regarding Dr. Reichman’s performance; Dr. Gollas’ letter to the EEOC; and his
affidavit.
A.
In seeking to satisfy his initial burden of establishing a prima facie case
(again, it is undisputed an adverse employment action occurred), see, e.g.,
Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001), Dr. Gollas
challenges the district court’s ruling that he failed to create a genuine dispute
of material fact on: whether he engaged in protected activity; or, assuming he
did, whether there was a causal link between that activity and the adverse
employment action. Gollas, 2010 WL 1628996, at *1-2.
1.
Dr. Gollas contends he engaged in protected activity by opposing an
unlawful employment practice—Dr. Arroyo’s claimed sexual harassment of
Nurse Garcia—and reporting it to Drs. McCarthy, Crandell, Colasurdo, and
Reichman. The district court found no evidence in the summary-judgment
record that Dr. Gollas opposed sexual harassment, only evidence of a shouting
match between him and Dr. Arroyo. Id.
In addition to his reliance on the claimed 1 March 2007 letter, Dr. Gollas
offers the following summary-judgment evidence that he complained of sexual
harassment to UTH: in a 6 August 2007 letter to ACGME, Dr. Reichman stated
that Dr. Gollas reported Dr. Arroyo’s inappropriate comments to Dr. McCarthy;
and, Dr. Reichman informed Dr. Crandell that Dr. Gollas had complained about
Dr. Arroyo’s conduct. For the following reasons, and although it is a close
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question, we will assume that Dr. Gollas’ summary-judgment evidence that he
complained of sexual harassment is sufficient to create a genuine dispute of
material fact on whether he opposed an unlawful employment practice, thereby
engaging in protected activity. 42 U.S.C. § 2000e-3(a); see, e.g., Jimenez v. Potter,
211 F. App’x 289, 290 (5th Cir. 2006) (finding no protected activity where
plaintiff claimed demotion in retaliation for filing workers’ compensation claim
where such claim not protected under Title VII).
First, Dr. Gollas contends that the summary-judgment evidence reflects
he complained of sexual harassment on 1 March 2007 by discussing the incident
with Dr. McCarthy and providing him a written complaint (the claimed 1 March
letter), with a copy given to Nurse Bennett (a nurse on duty the night of the
incident) to deliver to Dr. Reichman. (Again, we refer to this letter as “claimed”
because neither of the doctors to whom it was addressed remembers receiving
it.) In his deposition, Dr. McCarthy stated that he spoke with Dr. Gollas, but
that Dr. Gollas complained about a shouting match he had with Dr. Arroyo and
Dr. Arroyo’s treatment of him: conduct not made unlawful by Title VII. Dr.
McCarthy also stated in his deposition that he did not receive Dr. Gollas’ 1
March written complaint and that, had he received it, he would have forwarded
it to the nurse manager for investigation and contacted UTH legal services.
Second, Dr. Gollas contends the summary-judgment evidence reflects that,
around 3 or 4 March 2007, he told Dr. Crandell about details of the 1 March
incident. According to Dr. Crandell’s deposition, however, she: was not aware
that Dr. Gollas complained to Dr. McCarthy; and, stated that Dr. Reichman told
her about a shouting match between Drs. Gollas and Arroyo, but that he did not
tell her about the substance of that dispute or that Dr. Gollas had complained
of sexual harassment.
Third, Dr. Gollas contends the summary-judgment evidence reflects that
he complained to Dr. Colasurdo around 8 March 2007. As stated in his
declaration, Dr. Colasurdo has no recollection of Dr. Gollas’ doing so. Moreover,
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from 5 to 9 March 2007, when, according to Dr. Gollas’ deposition, he spoke with
Dr. Colasurdo, Dr. Gollas was on vacation.
Dr. Gollas also stated in his deposition that he complained of sexual
harassment to Dr. Reichman by providing Nurse Bennett a copy of his claimed
1 March written complaint to deliver to Dr. Reichman. In Dr. Reichman’s
deposition, however, he stated that Dr. Gollas never complained to him.
Notably, Dr. Gollas cannot confirm the letter’s delivery.
Finally, Dr. Reichman’s letter to ACGME and his informing Dr. Crandell
that an incident occurred are advanced to create a genuine dispute of material
fact that Dr. Gollas opposed sexual harassment. In his letter, Dr. Reichman was
not conceding that Dr. Gollas complained of sexual harassment; he stated that
Dr. Gollas’ complaint was regarding an inappropriate comment made to the
physician assistant—similar to what Dr. McCarthy stated in his deposition. In
his deposition, Dr. McCarthy stated that Dr. Gollas discussed inappropriate
comments made by Dr. Arroyo, but that he ultimately thought Dr. Gollas was
complaining about Dr. Arroyo’s behavior towards Dr. Gollas, not sexual
harassment. Further, because Dr. Reichman stated in his deposition that Dr.
Gollas never complained to him, he was not speaking from personal knowledge
in his 6 August 2007 letter to ACGME (five months after termination), but was
describing the incident as related to him by Dr. McCarthy.
Similarly, Dr. Reichman’s informing Dr. Crandell about the incident is
advanced to create a genuine dispute of material fact on protected activity. Dr.
Reichman admitted in his deposition having been told by Dr. McCarthy that
“there was a situation” and relaying that information to Dr. Crandell around 1
or 2 March 2007; however, he also stated in his deposition that he did not know
the exact nature of the incident, and told Dr. Crandell only that it happened, and
that Dr. McCarthy was investigating it.
As noted, whether Dr. Gollas satisfied his burden to create a genuine
dispute of material fact on protected activity is a close question. In the light of
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the conflicting summary-judgment evidence, we will assume that he met that
burden.
2.
Even assuming Dr. Gollas engaged in protected activity, he still does not
create a genuine dispute of material fact on whether he established a prima face
case because he failed to create such a dispute on the third element: a causal
link between that activity and the adverse employment action. To show such a
dispute on causal link, Dr. Gollas relies, inter alia, on the following: the close
temporal proximity between his post-incident complaint and the adverse
employment action; and the claimed insufficient reasons provided by UTH to
support the adverse employment action, especially in the light of his third-year-
residency appointment’s having been granted on 1 February 2007. For the
reasons that follow, and in holding that Dr. Gollas failed to show a prima facie
case of retaliation, we need not reach the close-temporal-proximity and
insufficient-reasons issues.
As an initial matter, Dr. Gollas must create a genuine dispute on whether
the final decisionmakers knew of his claimed sexual-harassment complaint.
Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003). As discussed
supra, Dr. Gollas stated in his deposition that he complained to the final
decisionmakers—Drs. Crandell and Colasurdo—about Dr. Arroyo’s conduct. In
the alternative, if there is no such genuine dispute on whether those doctors
were aware of the claimed protected activity, Dr. Gollas maintains the causal-
link element was satisfied because Dr. Reichman had a retaliatory motive and
influenced the adverse employment action by those two doctors.
Although the causal-link element for establishing a prima facie case is
similar to the ultimate question of whether the protected activity was a “but for”
cause of the adverse employment action, “the standards of proof applicable to
these questions differ significantly”, Long, 88 F.3d at 305 n.4: the causal-link
element is much less stringent than showing “but for” causation, Medina, 238
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F.3d at 685. Re-stated, plaintiff may satisfy the causal-link element but
ultimately fail to do so for the ultimate question of “but for” causation. Long, 88
F.3d at 305 n.4 (citing McMillan v. Rust Coll., Inc., 710 F.2d 1112, 1116-17 (5th
Cir. 1983)). Unlike “but for” causation, showing a causal link does not require
showing the protected activity was the sole motivating factor for the adverse
employment action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002).
a.
As noted, it must first be shown for summary-judgment purposes that the
final decisionmakers “knew about [Dr. Gollas’] protected activity”. Manning, 332
F.3d at 883. “If an employer is unaware of an employee’s protected conduct at
the time of the adverse employment action, the employer plainly could not have
retaliated against the employee based on that conduct.” Chaney v. New Orleans
Pub. Facility Mgmt., Inc., 179 F.3d 164, 168 (5th Cir. 1999) (citation omitted).
Dr. Gollas has failed to create a genuine dispute of material fact on
whether the final decisionmakers knew of his protected activity. See, e.g.,
Manning, 332 F.3d at 883 n.6. Dr. Gollas stated in his deposition that he
reported Dr. Arroyo’s conduct to Drs. McCarthy, Crandell, Colasurdo, and
Reichman; but, as discussed supra, not one of them remembers his complaining
about sexual harassment. More importantly, even if Drs. McCarthy and
Reichman received Dr. Gollas’ claimed 1 March 2007 letter, neither were
involved in the decision to terminate the third-year-residency appointment; thus,
their knowledge of the protected activity cannot establish a causal link.
b.
Dr. Gollas contends that, even if the final decisionmakers (Drs. Crandell
and Colasurdo) were unaware of protected activity, the causal-link element was
satisfied for summary-judgment purposes under a cat’s-paw theory because they
were influenced by Dr. Reichman. Dr. Gollas contends Dr. Reichman knew of
the protected activity and had a retaliatory motive. Specifically, Dr. Gollas
contends Dr. Reichman: prepared his February 2007 evaluation, which included
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claimed fabricated comments; and threatened Dr. Gollas during the first week
of March because of his sexual-harassment complaint against Dr. Arroyo.
The term cat’s paw is defined as “one used by another as a tool”, M ERRIAM-
W EBSTER’S C OLLEGIATE D ICTIONARY 181 (10th ed. 2001); it was derived from “a
fable conceived by Aesop . . . [where] a monkey induces a cat by flattery to
extract roasting chestnuts from the fire. After the cat has done so, burning its
paws in the process, the monkey makes off with the chestnuts and leaves the cat
with nothing”, Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190 n.1 (2011), rev’g
Staub v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009). Under the cat’s-paw
theory, if employee demonstrates a co-worker with a retaliatory motive had
influence over the ultimate decisionmakers, that co-worker’s retaliatory motive
may be imputed to the ultimate decisionmakers, thereby establishing a causal
link between the protected activity and the adverse employment action.
Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004); Gee, 289 F.3d
at 346; see also Long, 88 F.3d at 307 (finding sufficient evidence of causal link
where ultimate decisionmaker influenced by co-workers with retaliatory
motives).
In the Supreme Court’s recent analysis of a cat’s-paw claim in Staub, see
generally 131 S. Ct. 1186, employee claimed he was unlawfully terminated
because of his military obligations, in violation of the Uniformed Services
Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4311(a), (c). Id.
at 1189-91. Conceding the ultimate decisionmaker was not motivated by
hostility to his military obligations, employee maintained two of his supervisors
(nondecisionmakers) were so motivated, and influenced the adverse employment
action. Id. at 1190. In granting defendant judgment as a matter of law, the
Seventh Circuit held that a cat’s-paw claim could succeed only where the
nondecisionmaker exercised such singular influence over the decisionmaker that
the termination decision was the product of blind reliance. Staub v. Proctor
Hosp., 560 F.3d 647, 659 (7th Cir. 2009). The Seventh Circuit found that the
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decisionmaker was “not wholly dependent” on the advice of the
nondecisionmakers. Id.
In reversing, the Supreme Court held: as long as the nondecisionmaker
performs an act motivated by unlawful reasons that is intended to cause an
adverse employment action, and the act is a proximate cause of the adverse
employment action, employer is liable. Staub, 131 S. Ct. at 1194. Specifically,
the Court ruled: the two nondecisionmakers’ actions (the first, issuing employee
a corrective-action directive; the second, informing the final decisionmaker of
employee’s noncompliance with that directive) were “motivated by hostility
toward [employee’s] military obligations”; the corrective-action directive was
relied on in employee’s termination decision; and both nondecisionmakers had
the specific intent to cause that termination. Id.
In the light of the Court’s holding in Staub, Dr. Gollas has failed, under a
cat’s-paw theory, to create a genuine dispute of material fact on the causal-link
element. The summary-judgment record is devoid of evidence that Dr.
Reichman performed an act motivated by retaliatory animus, or intended that
act to cause Dr. Gollas’ termination. Dr. Gollas’ mere speculation that Dr.
Reichman acted with a retaliatory motive in completing Dr. Gollas’ February
rotation evaluation is insufficient to show a causal link. See, e.g., Septimus v.
Univ. of Hous., 399 F.3d 601, 611 (5th Cir. 2005).
Because the summary-judgment record reflects that Dr. Reichman was
unaware of a sexual-harassment complaint, there is no genuine dispute of
material fact on whether he harbored retaliatory animus. As discussed, Dr.
Reichman stated in his deposition that he never received Dr. Gollas’ claimed 1
March 2007 letter complaining of sexual harassment by Dr. Arroyo and was
unaware that Dr. Gollas complained of such conduct. Moreover, Dr. Gollas’
unsubstantiated statement in his 31 May 2007 letter to the EEOC that Dr.
Reichman threatened him in the weeks following his complaint is insufficient to
show retaliatory animus.
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Even assuming, for summary-judgment purposes, that Dr. Reichman
harbored retaliatory animus, there is no genuine dispute on whether he intended
the February rotation evaluation to cause an adverse employment action. The
February rotation evaluation was not typed in the computer until 5 March 2007
(the date the rotation was completed); but, it had been determined over a week
earlier, at the 22 February meeting and prior to the 1 March incident involving
Drs. Gollas and Arroyo, that Dr. Gollas failed his February rotation. Dr. Gollas
maintains the comments in this evaluation were fabricated; however, other
doctors agreed with Dr. Reichman’s assessment. As provided in the summary-
judgment record, Drs. Koerner and King, who attended the 22 February
meeting, corroborated that Dr. Gollas failed his February rotation. Dr. Koerner
also stated in her declaration that she told Dr. Gollas before the 1 March
incident that he would be required to repeat that rotation.
B.
Even assuming Dr. Gollas created a genuine dispute on whether he
showed a prima facie case of retaliation, he fails: to create such a dispute on
whether UTH failed to meet its resulting burden to produce legitimate, non-
retaliatory reasons for terminating his third-year-residency appointment; and,
on the burden shifting back to him, to create a genuine dispute on whether these
reasons were pretext for unlawful retaliation. The district court held there was
no genuine dispute of material fact that the termination of the appointment was
based on unlawful reasons, implicitly finding no genuine dispute on pretext.
Gollas, 2010 WL 1628996, at *2. As discussed, if UTH produces a legitimate,
non-retaliatory reason for the adverse employment action, the focus shifts to the
ultimate question of retaliation: whether Dr. Gollas produced sufficient evidence
to create a genuine dispute of material fact that, but for his complaint against
Dr. Arroyo, UTH would not have terminated his third-year-residency
appointment. See, e.g., Strong, 482 F.3d at 806.
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As stated supra, to survive summary judgment, the more stringent “but
for” causation standard requires Dr. Gollas to demonstrate “a conflict in
substantial evidence on the ultimate issue of retaliation”. Medina, 238 F.3d at
685 (citation and internal quotation marks omitted). Under this “but for”
causation standard, “[e]ven if a plaintiff’s protected conduct is a substantial
element in a defendant’s decision to terminate an employee, no liability for
unlawful retaliation arises if the employee would have been terminated even in
the absence of the protected conduct”. Long, 88 F.3d at 305 n.4 (citing Jack v.
Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984)). (The mixed-motives
method of proof does not apply here; Dr. Gollas’ entire claim was based on UTH’s
explanations for the appointment termination being pretextual: he claimed it
was in retaliation for his complaint against Dr. Arroyo, and never acknowledged
that the reasons for the termination were valid. See, e.g., Smith v. Xerox Corp.,
602 F.3d 320, 339-40 (5th Cir. 2010).)
1.
Based on the summary-judgment record, Dr. Gollas failed to create a
genuine dispute on whether UTH produced legitimate, non-retaliatory reasons
for terminating his third-year-residency appointment. As discussed, UTH’s
burden at this stage is one of production, not persuasion. Patrick, 394 F.3d at
315. “[A]n employer must articulate a nondiscriminatory reason with ‘sufficient
clarity’ to afford the employee a realistic opportunity to show that the reason is
pretextual”. Id. at 317 (emphasis in original) (citation omitted). Where there is
close timing between the protected activity and adverse employment action,
employer must offer “a legitimate, [non-retaliatory] reason that explains both
the adverse action and the timing”. Shackelford, 190 F.3d at 408 (emphasis
omitted) (citation and internal quotation marks omitted).
Again, Dr. Colasurdo was the pediatrics department chair. He stated in
his declaration that he agreed with the termination-of-appointment decision
because of Dr. Gollas’ “marginal performance” during his second year of
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residency,“his failure of an emergency medicine rotation in February 2007, [] the
fact that his behavior was not appropriate in several instances, including a
shouting match with an attending physician [Dr. Arroyo], and that he had been
the subject of complaints from nurses regarding his inappropriate behavior and
potentially harassing conduct”. As discussed, Dr. Crandell was the pediatrics
program director. She stated in her deposition her concerns about Dr. Gollas:
“[h]is performance in the PICU; his performance in [] emergency medicine; his
treatment of his fellow residents”; and allegations that he made inappropriate
comments to a medical student and a resident.
Moreover, Dr. Gollas’ “poor performance and improper conduct were not
unsubstantiated when [his third-year-residency appointment] was [terminated]”.
Strong, 482 F.3d at 808. Some of the attending physicians who evaluated Dr.
Gollas, including Drs. Strobel, Feldman, and Reichman, expressed concern
regarding his performance. For example, in Dr. Gollas’ November 2006 rotation
evaluation, Dr. Strobel stated in the comments section that “[i]nformation given
[by Dr. Gollas] on rounds was not reliable which delayed patient care.
Relationship with team members was strained”. Further, in Dr. Gollas’ January
2007 rotation evaluation, Dr. Feldman stated in the comments section that Dr.
Gollas had “difficulty accepting/applying received feedback and in accepting
responsibility as an active participant in his learning”. In Dr. Gollas’ failing
February rotation evaluation, Dr. Reichman stated that “Dr. Gollas’ performance
is clearly below what is expected for a Pediatric resident at his level of training”.
Further, Dr. Koerner, who worked with Dr. Gollas during his February
rotation, stated in her declaration that it was her “independent recollection that
Dr. Gollas’ performance was not satisfactory and was not sufficient to achieve
a passing grade for the February rotation”. In her 22 September 2009
statement, responding to three questions she was asked by UTH about her
interaction with Dr. Gollas and attached to UTH’s summary-judgment motion,
Dr. Koerner stated that Dr. Gollas was missing for almost an hour during the
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February rotation, and his knowledge base was limited for someone with his
level of training.
Dr. Oakes similarly noted in her September 2009 statement, responding
to those same three questions posed by UTH and attached to UTH’s summary-
judgment motion, that: “Dr. Gollas’ knowledge base for patient care was
severely below expectations”; and he “consistently underassessed, misdiagnosed,
or dismissed important history on physical exam findings, yet thought he was
doing a magnificent job”. She also noted in that statement that “families,
nurses, and female medical students complained about Dr. Gollas’ interpersonal
skills, his overly familiar and too casual mannerisms, and his poor follow-
through with patient care”.
UTH also produced a legitimate, non-retaliatory reason for the close
timing between the protected activity and adverse employment action: Dr.
Gollas’ failing February rotation and his continuing poor performance during his
March rotation.
2.
UTH’s having satisfied its burden of production, the burden shifts back to
Dr. Gollas to demonstrate that he created a genuine dispute that, but for his
complaint against Dr. Arroyo, termination of his third-year-residency
appointment would not have occurred. Strong, 482 F.3d at 806. This is done by
Dr. Gollas’ creating a genuine dispute on whether UTH’s reasons for his
termination were pretext for unlawful retaliation. Medina, 238 F.3d at 685.
“Simply disputing the underlying facts of an employer’s [adverse employment]
decision is not sufficient to create an issue of pretext.” LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007).
In contending he created a genuine dispute on whether UTH’s reasons are
pretextual, Dr. Gollas relies on the following summary-judgment evidence: UTH
based the appointment termination on his failed February rotation, but later
relied on “made for litigation” reasons including unsubstantiated sexual
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harassment assertions, complaints about getting along with others, and 2006
evaluations, despite that UTH had already considered and dismissed these
reasons when it granted Dr. Gollas’ third-year-residency appointment; and, Dr.
Gollas had been permitted to repeat his failed February rotation, but UTH
abruptly terminated the appointment shortly after he made a sexual-harassment
complaint against Dr. Arroyo. Viewing the summary-judgment evidence in the
light most favorable to Dr. Gollas, he has failed to create a genuine dispute of
material fact on whether the appointment would not have been terminated but
for his complaint against Dr. Arroyo. See, e.g., Sherrod, 132 F.3d at 1123.
Dr. Gollas’ first assertion, that UTH’s reasons were concocted for the
purpose of litigation, does not create a genuine dispute on pretext. As stated
supra, and reflected in the summary-judgment record, Drs. Crandell and
Colasurdo never stated that the termination was due to one failing rotation. To
the contrary, they stated in their depositions and in his appointment-
termination letter that it was the result of his poor performance history, poor
relationship with other residents, and inappropriate behavior. The summary-
judgment record reflects that Dr. Gollas fails to create a genuine dispute on
whether: Drs. Crandell and Colasurdo failed carefully to consider Dr. Gollas’
performance history, as well as his conduct during February, in reaching their
decision; and whether his performance and concerns about his professionalism
during February were a catalyst for Dr. Crandell’s decision to reconsider Dr.
Gollas’ third-year-residency appointment and review his record as a whole.
Dr. Gollas also contends UTH’s reasons were pretextual because he had
been permitted to repeat his February rotation, but was abruptly terminated
after he made his claimed complaint against Dr. Arroyo. Again, this assertion
is insufficient to create a genuine dispute on pretext. As stated in her
declaration, Dr. Koerner spoke with Dr. Gollas regarding his failed rotation
sometime between 22 and 27 February 2007, and told him that he would be
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required to repeat the failed rotation; however, there is no summary-judgment
evidence that Dr. Koerner permitted him to do so.
Finally, Dr. Gollas’ assertions in support of the causal-link element for a
prima facie case, discussed supra, are similarly insufficient to create a genuine
dispute of material fact on “but for” causation. As discussed, UTH provided
summary-judgment evidence of numerous reasons in support of the appointment
termination, and the close proximity between it and the protected activity,
without more, is insufficient to create a genuine dispute on pretext. See, e.g.,
Shackelford, 190 F.3d at 409 (finding close proximity between protected activity
and adverse employment action, when coupled with other significant pretext
evidence, sufficient to survive summary judgment).
Dr. Gollas’ unsubstantiated allegations and his subjective belief of
retaliation are insufficient to survive summary judgment. See Strong, 482 F.3d
at 808-09 (ruling that, because employer stated legitimate reasons for firing
employee, and employee did not produce sufficient evidence that those reasons
were pretextual, retaliation claim failed). Because UTH has produced
legitimate, non-retaliatory reasons for the appointment termination, and Dr.
Gollas failed to provide sufficient summary-judgment evidence that those
reasons were pretext for unlawful retaliation, there is no genuine dispute of
material fact that the third-year-residency appointment would not have been
terminated but for his claimed complaint against Dr. Arroyo. See Roberson, 373
F.3d at 656 (holding that, without more than timing allegations, and based on
employer’s legitimate, nondiscriminatory reason, summary judgment was
proper).
III.
For the foregoing reasons, the judgment is AFFIRMED.
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