Lee Davis v. Jefferson Hospital Association

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-3858
___________

Lee A. Davis, M.D., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jefferson Hospital Association, dba *
Jefferson Regional Medical Center; *
Robert P. Atkinson, CEO Jefferson *
Regional Medical Center; Lon Bitzer, *
M.D.; Shabbir Dharamsey, M.D.; *
Horace Green, M.D.; David Lupo, *
M.D.; Charles Mabry, M.D.; M. Bilal *
Malik, M.D.; Reid Pierce, M.D.; *
Ruston Pierce, M.D.; James Alan *
Pollard, M.D.; Ron Pritchard, M.D.; *
JoAnn Mays, *
*
Appellees. *
___________

Submitted: January 12, 2012
Filed: July 12, 2012
___________

Before BYE, SMITH, and COLLOTON, Circuit Judges.
___________

SMITH, Circuit Judge.
 Dr. Lee A. Davis filed this action against Jefferson Hospital Association, doing
business as Jefferson Regional Medical Center (JRMC); JRMC Chief Executive
Officer Robert P. Atkinson; and 12 physicians at JRMC (collectively, "the
defendants"). In his amended complaint, Davis alleged, inter alia, race discrimination
and retaliation, in violation of 42 U.S.C. § 1981 and the Arkansas Civil Rights Act
(ACRA), and conspiracy to interfere with his civil rights, in violation of 42 U.S.C.
§ 1985(3). The district court1 granted summary judgment to the defendants and
dismissed all of Davis's claims. Davis appeals the dismissal of his § 1981, § 1985(3),
and ACRA claims. We affirm.

I. Background
Davis, an African-American cardiologist, obtained medical-staff privileges at
JRMC in 2003. Article 2.1 of the JRMC Medical Staff Credentialing Policy provides:

General Qualifications—Medical staff appointment . . . and clinical
privileges are privileges extended by the hospital, and not a right of any
individual. Continued exercise of any such status or privileges is
contingent upon compliance with the Medical Staff Bylaws, this policy,
and staff and hospital rules. Appointment to the staff and associated
clinical privileges shall be extended only to professionally competent
physicians and dentists who continuously meet the qualifications and
requirements set forth in this policy, conform to the standards of patient
care imposed by law and herein, and continuously demonstrate an ability
to work harmoniously with others in the orderly rendering of quality
patient care. . . .

From 2004 to 2006, Davis was involved in several disputes with JRMC staff
in which staff alleged that Davis made abusive, sexually offensive, profane, or
derogatory remarks. In August 2004, Sherry Yeggy-Nail, a registered nurse, filed a

1
The Honorable D. Price Marshall, Jr., United States District Judge for the
Eastern District of Arkansas.

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written complaint against Davis for his use of "hostile and abusive language." In
November 2005, Morie Mehyou, an administrative employee at JRMC, reported that
Davis called him an "idiot." On January 25, 2006, at least seven hospital employees
complained that Davis had lashed out at an entire floor of nurses with hostile and
inappropriate language. A family member of a JRMC patient also filed a written
complaint that Davis was "inappropriate" and "rude" to the nurses on the floor. Davis
admitted that he used profanity with JRMC staff.

Several JRMC personnel also reported that Davis made threats or tried to
intimidate them. In February 2006, Wendy Green, Lead Compliance Auditor at
JRMC, reported that Davis said "he was going to make bad things happen" to another
doctor at JRMC. The next month, Angela Bryant, an administrative assistant,
expressed concern that Davis "ha[d] become paranoid and ha[d] gotten out of control
with his behavior." Also in March 2006, Manager of Admissions Brian Miller
reflected on an encounter that he had with Davis, which he viewed as "an attempt to
intimidate [Miller]." On April 3, 2006, Dr. Reid Pierce reported that Davis asked him
how he was doing, to which he responded, "Fine." Davis then said, "You won't be for
long."

On May 16, 2006, the JRMC Credentials Committee, which reviews medical
staff privileges at JRMC, informed Davis that it would be investigating his conduct.
The Invasive Procedures Committee also referred "quality of care issues" involving
Davis to the Credentials Committee. Quality of care issues included "lack of response
to nurse calls for patient care matters; inadequate response times to patients admitted
to critical care units; assigning call response to his AHP nurse; poor documentation
on patient records . . . ; [and] refusal to abide by the request of leadership to remedy
poor charting." "[T]he final result of that initial investigation was a corrective action
[plan]." The plan directed Davis not to "use threatening or abusive language," "use
degrading or demeaning comments," "use profanity or similarly offensive
. . . language," "make inappropriate physical contact with another individual that is

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threatening or intimidating," or "make derogatory comments about the quality of care
being provided by the Hospital." The plan also required timely and accurate
maintenance of records, quick response to calls from medical staff, submission to
random drug tests, and participation in an approved anger management course.

According to Dr. David Lupo, Credentials Committee Chairman, Davis "failed
to comply" with the corrective action plan. On December 18, 2006, the Credentials
Committee "voted unanimously to approve the suspension of clinical privileges for
[Davis] for non-compliance with the Committee's requirement to select an approved
Behavior/Conduct Course . . . until such time that he fully comes into compliance."
JRMC's attorney met with the Credentials Committee three days later, and as a result
of the meeting, the Committee "table[d] the suspension of clinical privileges for
[Davis] until after the first of the year to allow ample time for research."

Thereafter, other quality of care and behavioral issues surfaced. In March 2007,
the Credentials Committee appointed a seven-member Ad Hoc Committee to
investigate Davis for the second time. During the investigation, the Ad Hoc
Committee considered a report by Dr. Charles Mabry, Medical Director of Quality
at JRMC, regarding quality concerns surrounding Davis. The report concluded that
"[by] any measure, Dr. Lee Davis's care of patients has been in an outlier status."2 The
ad hoc committee also considered a peer review report, which indicated that from

2
Davis proffers evidence in the form of an affidavit by another physician
indicating that Davis did not fail to respond in one of the patient cases that Mabry
reported. He also includes in the record a self-serving affidavit, drafted in response
to a motion for summary judgment, which admits to medical-record delinquencies in
2004 and 2007 but alleges that he was "caught[]up in April 2007." Self-serving
affidavits do not defeat a "properly supported motion for summary judgment."
Frevert v. Ford Mtr. Co., 614 F.3d 473, 473 (8th Cir. 2010) (quotations and citation
omitted). "Rather, the plaintiff must substantiate allegations with sufficient probative
evidence that would permit a finding in the plaintiff's favor." Id. at 473–74
(quotations and citation omitted).

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August 2006 to March 2007, the number of deficiencies in Davis's medical records
were more than five times higher than the average of all other cardiologists at JRMC.
JRMC had suspended Davis's privileges twice in 2004 for record delinquencies. A
report of cardiac catheterization cases at JRMC indicated that, between 2004 and
2006, diagnostic-only catheterizations comprised a higher percentage of Davis's
cardiology procedures than any other cardiologist. The Ad Hoc Committee did not
render a judgment "regarding the area of utilization," but noted "that the information
provided to the committee was potentially significant and deserved to be reviewed in
the peer review process or by outside experts."

"Following a report to the Credentials Committee . . . of the findings of the Ad
Hoc Investigative Committee," Davis received a cautionary, fourteen-day suspension.
After further review of Davis's patient-death cases, four of which were found to be
below the standard of care, the Credentials Committee "recommended that [Davis]
have his privileges revoked." Davis exercised his right to appeal the recommendation
to a hearing panel consisting of five physicians. Following more than 13 separate
hearings over the course of three months, the hearing panel voted unanimously to
recommend revocation of Davis's privileges. Davis appealed again to a four-member
review panel. The review panel voted unanimously to accept the recommendations
of the Credentials Committee and the hearing panel. JRMC's 14-member Board of
Directors then voted to revoke Davis's medical-staff privileges for poor quality of
patient care, improper medical documentation, and unprofessional behavior.

Davis filed the instant suit in federal district court alleging, inter alia, race
discrimination and retaliation, in violation of 42 U.S.C. § 1981 and the ACRA; and
conspiracy to violate his civil rights, in violation of 42 U.S.C. § 1985(3).3 The final
scheduling order instructed the parties to complete discovery no later than

3
Davis does not appeal the dismissal of his due process or § 1983 claims or his
claims for tortious interference with a business expectancy.

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November 29, 2010. The defendants filed a series of summary judgment motions,
ultimately reaching all of Davis's claims. Davis sought a continuance under then-
applicable Federal Rule of Civil Procedure 56(f).4 The district court denied Davis's
motion for a continuance and granted the defendants' motions for summary judgment.

II. Discussion
On appeal, Davis argues that the district court erred by entering summary
judgment in favor of the defendants on his race discrimination, retaliation, and
conspiracy claims and by denying his request for a continuance.

A. Summary Judgment
Davis contends that the defendants are not entitled to summary judgment on
his race discrimination, retaliation, and conspiracy claims. "We review de novo the
district court's grant of summary judgment." Davis v. KARK-TV, Inc., 421 F.3d 699,
703 (8th Cir. 2005). "Summary judgment is appropriate if there is no genuine issue
as to any material fact and the moving party is entitled to a judgment as a matter of
law." Id. (quotation and citation omitted). "The burden of demonstrating that there are
no genuine issues of material fact rests on the moving party," and "[w]e review the
evidence and the inferences that reasonably may be drawn from the evidence in the
light most favorable to the nonmoving party." Id. (quotations and citations omitted).

1. Discrimination Claims
Davis alleges that the district court erroneously granted summary judgment on
his race discrimination claims pursuant to 42 U.S.C. § 1981 and ACRA. "We analyze
. . . § 1981 claims . . . and ACRA claims in the same manner." Id. When there is no
direct evidence of discrimination, "[w]e employ the familiar McDonnell Douglas

4
"Subdivision (d) carries forward without substantial change the provisions of
former subdivision (f)." Fed. R. Civ. Pro. 56 advisory committee's note to 2010
Amendments, subdivision (d).

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burden-shifting framework to conduct our analysis." Id. at 704; see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 801–04 (1973). "Under the McDonnell
Douglas framework, a presumption of discrimination is created when the plaintiff
meets [his] burden of establishing a prima facie case of employment discrimination."
Davis, 421 F.3d at 704 (quotation and citation omitted). A plaintiff meets this burden
"by showing that he or she: (1) is a member of a protected group; (2) was meeting the
legitimate expectations of the employer; (3) suffered an adverse employment action;
and (4) [suffered] under circumstances permitting an inference of discrimination."
Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005) (quotation and
citation omitted). "Once a plaintiff successfully establishes a prima facie case, the
burden shifts to the employer to articulate a legitimate, non-discriminatory reason for
its adverse employment action." Davis, 421 F.3d at 704 (quotation and citation
omitted). "If the employer meets its burden, the presumption of discrimination
disappears, requiring the plaintiff to prove that the proffered justification is merely
a pretext for discrimination." Id. (quotation and citation omitted).

The defendants concede that Davis is a member of a protected group who
suffered an adverse employment action. However, they contend that Davis failed to
submit evidence which would permit a jury to infer that discrimination motivated the
employment action. They argue that legitimate reasons—not pretext—justified
revoking Davis's privileges at JRMC. The defendants argue that they revoked Davis's
privileges because of his behavior toward hospital staff, his poor record of patient
care, and his failure to maintain proper medical records. Davis argues that he has met
the burden of proving his prima facie case because the defendants treated similarly
situated individuals who are not African American differently than Davis. He also
argues that the court can infer discrimination from the conduct of JRMC staff and
from evidence that the hospital violated some of its own policies in revoking his
privileges.

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 a. Similarly Situated Personnel
The test for whether employees are similarly situated "is rigorous and requires
that the other employees be similarly situated in all relevant aspects before the
plaintiff can introduce evidence comparing [himself] to the other employees." Fields
v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008). "The individuals used for
comparison must have dealt with the same supervisor, have been subject to the same
standards, and [have] engaged in the same conduct without any mitigating or
distinguishing circumstances." Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034,
1043 (8th Cir. 2007) (quotation, alteration, and citation omitted). Davis contends that
several other doctors at JRMC used profanity and made derogatory comments in front
of hospital staff. In support, he cites to the results of a survey indicating that three
non-African-American physicians at JRMC, like Davis, behaved inappropriately
toward JRMC staff.

The record does not show that any physicians Davis identified provided poor
patient care or kept insufficient medical records. As the defendants point out, "[t]he
fact that [certain doctors] might have been accused of using profanity does not render
these physicians similarly situated with Davis." Davis also cites to his verified
complaint and affidavit, alleging that "[n]o white physician had . . . been subjected
to a 'zero tolerance' corrective action plan" or "random drug testing without cause."
While a verified complaint is equivalent to an affidavit for summary judgment
purposes, Hanks v. Prachar, 457 F.3d 774, 775 (8th Cir. 2006) (per curiam), neither
Davis's verified complaint nor his affidavit list any similarly situated, white
physicians at JRMC who were treated differently than Davis. Davis alleges in his
brief that Dr. Herzog, a white physician, received a temporary suspension
approximately 15 years ago that the defendants did not report to the National
Practitioner's Data Bank, even though they allegedly reported Davis's suspension.
There is no evidence of that in the record, nor is there evidence in the record
indicating that Herzog was similarly situated to Davis in all relevant aspects.

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 Davis also argues that the district court erred by failing to consider 11
affidavits in which individuals testified that he was treated differently than similarly
situated white doctors. In fact, only six of the affidavits allege that "certain white
physicians" have behaved inappropriately toward medical staff and have not been
disciplined. Four affidavits simply state that "other physicians" have behaved
inappropriately and have not been disciplined. None of the affidavits include the
names of these "other physicians." Nor do the affidavits address patient care or
medical recordkeeping—the other two proffered reasons for revoking Davis's
privileges. Davis testified in his deposition that he could think of no other physicians
who were similarly situated to him.5

b. Conduct of JRMC Physicians
Davis also contends in his brief that the conduct of two JRMC physicians—Dr.
Reid Pierce and Dr. Charles Mabry—is sufficient evidence from which the court can
infer discrimination. Davis cites that Pierce encouraged a JRMC employee to "make
a written statement [regarding a disturbing conversation she allegedly had with
Davis] and send it to [the Chief of Staff]." Davis also alleges that Pierce violated
confidentiality by showing a nurse's complaint against Davis to other physicians.
Finally, Davis contends that, after Pierce received a "third-party report of an offensive
sexual conversation between Davis and a nursing student" while Pierce was Chief of
Staff, he launched a quick investigation into whether Davis had sexually harassed the
student. The court cannot infer discrimination from these facts. Moreover, it is
undisputed that Pierce could not vote on the Credentials Committee and had no power

5
Davis cites statements from his coworkers indicating that he was a good
physician. These statements are not relevant to his discrimination or retaliation
claims. "It is not the role of this court to sit as a super-personnel department to second
guess the wisdom of a business's personnel decisions." Chambers v. Metro. Prop. &
Cas. Ins. Co., 351 F.3d 848, 858 (8th Cir. 2003) (quotation, alteration, and citation
omitted). The issue is not whether JRMC should have revoked Davis's privileges, but
whether its decision to do so was discriminatory or retaliatory in nature.

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to make official recommendations to the Committee. Thus, Davis has failed to show
how the revocation of his privileges, a decision made by the Credentials Committee
and affirmed by the hearing panel, review panel, and Board of Directors, was the
result of race discrimination.

Davis alleges that Mabry discriminated against him because of race. Mabry
filed a formal complaint against Davis for "slanderous comments made by Dr. Davis
in [the Invasive Procedures] committee [meeting]." As Medical Director of Quality
at JRMC, Mabry also developed a presentation for the Credentials Committee, which
indicated that Davis's patient care and medical recordkeeping were substandard and
that Davis overused "invasive cardiac procedures, as opposed to more traditional
diagnostic and therapeutic measures." The filing of a complaint is not discriminatory
of itself. See Soto v. Mineta, No. 04-70966, 2008 WL 4427788, at *27 (E.D. Mich.
Sept. 30, 2008) ("[T]he act of filing a complaint . . . is not discriminatory harassment
. . . ."). Mabry's presentation to the Credentials Committee, without more, does not
support an inference of discrimination. Davis argues that Mabry's calculations were
erroneous, yet he cites no evidence in the record to support that conclusion other than
his own affidavit.

c. Hospital Policy Violations
Finally, Davis contends that JRMC failed to follow its own procedures with
regard to the complaints against Davis and the disciplinary actions taken against him.
First, he contends that the hospital failed to inform him of a written complaint that
Registered Nurse Yeggy-Nail made against him in August 2004. It is undisputed,
however, that Davis knew of the complaint because he filed a written response to it.
He also contends that JRMC failed to use collegial intervention6 to resolve the issue

6
Although the record does not define "collegial intervention," the JRMC
Credentialing Policy states: "Nothing in this policy or the medical Staff bylaws shall
preclude collegial or informal efforts to address questions or concerns relating to an
individuals [sic] practice and conduct at the hospital." (Emphasis added.)

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raised in the complaint. The record shows that then-Chief of Staff Dr. Reid Pierce and
Dr. Bob Gullett held a collegial intervention, or informal meeting, with Davis later
that month to discuss the incident.

Davis also contends that the corrective action plan was overly restrictive
because the language "you should be ashamed of yourself" could constitute a
violation of the plan, as could certain body language. Davis offers no support for this
assertion, nor does he cite language in the corrective action plan indicating that those
types of communication would constitute a violation. Davis also complains that the
plan required him to undergo anger management counseling and submit to random
drug testing. He cites no hospital policy that these requirements violate, nor does he
show that others were treated differently.

Davis argues, without support, that the Credentials Committee's vote was taken
without notice or an opportunity to be heard. Evidence in the record indicates that
JRMC informed Davis in writing when the Committee launched its investigation and
invited Davis to address the Committee, which Davis did. Davis argues that the fact
that "the entire Credentials Committee would serve as the ad hoc investigative
committee" was contrary to the Credentials Policy, "which provides that an ad hoc
investigative committee could only consist of up to three (3) persons." The policy
actually states that the committee may investigate themselves, appoint an ad hoc
committee of three, or appoint another subcommittee.

Davis stated in his deposition that the hearing panel members and review panel
members did not discriminate against him. Davis also stated that thirteen of the
fourteen members of JRMC's Board of Directors, who affirmed the decision to revoke
his privileges, did not discriminate against him.

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 d. Conclusion
Davis has failed to provide any evidence giving rise to an inference that the
defendants racially discriminated against him. Thus, the district court did not err in
granting the defendants' motion for summary judgment on Davis's race discrimination
claims.7

2. Retaliation Claims
Davis also alleges that the defendants retaliated against him in violation of 42
U.S.C. § 1981 and ACRA. To establish a prima facie case of retaliation, the plaintiff
must show "that (1) [he] engaged in statutorily protected activity; (2) an adverse
employment action was taken against him . . . ; and (3) a causal connection exists
between the two events." Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142,
1146 (8th Cir. 2012) (quotation and citation omitted). "[I]f the plaintiff can establish
a prima facie retaliation case, the defendant[s] must provide a legitimate,
nondiscriminatory reason for [their] decision." Id. "If the defendant[s] do[ ] so, the
burden then shifts back to the plaintiff to show that the proffered reason was merely
a pretext for discrimination." Id.

The defendants respond that Davis did not engage in a protected activity.
Protected conduct is defined by federal law, which "prohibits a[] [defendant] from
discriminating against an employee who 'has opposed any practice' made unlawful by
Title VII, or 'made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding or hearing' under the statute." Hervey v. Cty. of
Koochiching, 527 F.3d 711, 722 (8th Cir. 2008) (quoting 42 U.S.C. § 2000e-3(a)).
Davis argues that he engaged in protected conduct on November 11, 2005, when he
"sent his concerns about Dr. Mabry's and Dr. Reid Pierce's bias and racial

7
Davis relies on the same factual allegations to support his argument that the
proffered reasons for revoking his privileges are pretext for discrimination. Although
we need not address the pretext argument, these facts would be insufficient to show
pretext for the reasons stated supra.

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discrimination to Tom Harbuck, Executive Vice President, Robert Atkinson, CEO,
Jefferson Hospital Association, and Bill Bledsoe, Cardiac Administrator, via a
Quality Concern." The only evidence he cites in support is his allegation in the
verified complaint.

Even if the complaint were enough to indicate that Davis engaged in a
protected activity, he has not established a causal connection between his complaint
in 2005 to JRMC administrators and the ultimate revocation of his privileges in July
2007.

3. Conspiracy Claim
Davis argues that the district court erred in dismissing his civil rights
conspiracy claim pursuant to 42 U.S.C. § 1985(3).

In order to prove the existence of a civil rights conspiracy under
§ 1985(3), the [plaintiff] must prove: (1) that the defendants did
"conspire," (2) "for the purpose of depriving, either directly or
indirectly, any person or class of persons of equal protection of the laws,
or equal privileges and immunities under the laws," (3) that one or more
of the conspirators did, or caused to be done, "any act in furtherance of
the object of the conspiracy," and (4) that another person was "injured
in his person or property or deprived of having and exercising any right
or privilege of a citizen of the United States." 42 U.S.C. § 1985(3).

Larson by Larson v. Miller,76 F.3d 1446, 1454 (8th Cir. 1996). "The 'purpose'
element of the conspiracy requires that the plaintiff prove a class-based invidiously
discriminatory animus." City of Omaha Emps. Betterment Ass'n v. City of Omaha, 883
F.2d 650, 652 (8th Cir. 1989) (quotation and citation omitted). "Moreover, the
plaintiff must allege with particularity and specifically demonstrate with material
facts that the defendants reached an agreement." Id. As indicated supra, Davis has

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failed to show any racial animus on the part of the defendants. As a result, his
§ 1985(3) claim fails as a matter of law.8

B. Request for Continuance
Davis contends that the district court erred by denying his request for
continuance. "We review for an abuse of discretion the district court's refusal to allow
further discovery prior to ruling on a motion for summary judgment." Anuforo v.
Comm'r, 614 F.3d 799, 808 (8th Cir. 2010) (quotation and citation omitted). We
"uphold[] the [district court's] decision if the nonmoving party was not deprived of
a fair chance to respond to the summary judgment motion." Brown v. J.B. Hunt
Transp. Servs., Inc., 586 F.3d 1079, 1084 (8th Cir. 2009) (quotation and citation
omitted). "Under Rule 56(f), a party opposing summary judgment may seek a
continuance and postpone a summary judgment decision, but the party opposing
summary judgment is required to file an affidavit with the district court showing what
specific facts further discovery might uncover." Anuforo, 614 F.3d at 808 (quotations
and citation omitted).

The district court held a motions hearing in July 2010 to resolve certain
discovery disputes. At that hearing, Davis sought to compel certain peer review and
credentialing information. The district court granted Davis's motions in part. Davis
filed his motion for continuance in September 2010. At that time, Davis's counsel
argued that Davis needed the data supporting the mortality tables that the defendants
used and relied upon to revoke Davis's privileges—data that Davis did not seek in the
prior motions to compel. Davis argued that there was insufficient time to review the
volume of data uncovered before the scheduled November 2010 court date.
Reviewing the record as a whole, we cannot say that the district court abused its
discretion by denying the motion for continuance.

8
Davis's counsel acknowledged at the summary judgment hearing that "if we
lose on the race claim, the rest of the claims go away."

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 III. Conclusion
For the foregoing reasons, we affirm the decision of the district court.
______________________________

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