[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
March 8, 2005
No. 04-15090 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00106-CV-WBH-1
BRIAN MORRIS,
Plaintiff-Appellant,
versus
EMORY CLINIC, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 8, 2005)
Before BLACK, PRYOR and GODBOLD, Circuit Judges.
PER CURIAM:
This is an employment discrimination case brought by a male doctor, an
obstetrician and gynecologist, against his employer, a medical school clinic, for
age and sex discrimination. The doctor claims the university clinic fired him
because it favored younger female doctors. The clinic asserts that the doctor was
terminated as a result of patient complaints concerning his forceful physical
examinations and off-color remarks he made on the ability of older patients to
have children. The district court granted summary judgement for the university
clinic. We affirm.
Dr. Brian Morris’ tenure with Emory University School of Medicine began
in 1995 when he was appointed to the faculty as an assistant professor. Along
with his faculty appointment Morris was to work as an obstetrician and
gynecologist at one of the University’s Clinic locations around the Atlanta
metropolitan area. Morris initially was assigned to the Clinic’s location in nearby
Fayetteville, Georgia. His employment was subject to termination by the
University for any reason upon 90 days written notice. His supervisor at the
Clinic was Dr. Penny Castellano who headed the Clinic’s obstetrics and
gynecology section.
In 2000 the University closed its Fayetteville Clinic location for financial
reasons. Morris was reassigned to the Clinic’s Crawford Long location, a large
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facility in Midtown Atlanta named after a prominent Georgia physician. He was
also assigned to perform “back up” duties at the Clinic location on Clifton Road.
The Clifton Road facility was located a short distance away from Crawford Long
on the University’s Medical School campus. Morris asserts – without explanation
– that the Clifton Road location was favorable to Crawford Long. Morris
submitted evidence that the Clinic ensured that both female and male doctors were
located at the Clifton Road location. One administrator speculated that a reason
for balancing the male to female physician ratio at a Clinic location was that some
female patients might prefer to see female gynecologists. Both the Crawford Long
and Clifton Road locations had male and female doctors.
After Morris moved to Crawford Long, he received a series of patient
complaints that alleged he conducted forceful physical examinations and made
disparaging remarks to patients over 40 seeking to have children. In March 2000 a
patient called the Clinic to complain that, in response to her question whether the
examination of her cervix would hurt, Morris “dug his nails into her ankle and
asked her what she would say if something hurt.” As Morris’ supervisor
Castellano was charged with investigating this complaint. She met with Morris to
discuss the incident and informed him that she would raise the matter with Clinic
administration personnel.
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In December 2000 another patient wrote a letter criticizing the “forceful”
and “rough manner” in which Morris conducted her examination. She also
described several off-color remarks Morris made about her chances for pregnancy
given her age. The patient wrote that Morris told her “the realities are that you
have 42-year-old eggs, which means that it will be difficult for you to get
pregnant.” When she informed him that another physician in Washington, D.C.
had success with pregnancies in women over the age of 40, Morris retorted “it
does not change the statistics that you only have a 50% chance of getting
pregnant.” Morris recommended the patient see a fertility clinic to potentially
qualify to receive an egg from a younger female. The patient wrote in her letter
that she felt Morris had an underlying resentment of women who chose to
postpone motherhood in favor of pursuing a career.
After receiving the letter Castellano and Paul Hammonds, Administrator of
Primary Care, met with Morris to discuss the patient’s complaints. During this
meeting Castellano requested that Morris write a letter of apology to the patient.
Castellano also suggested Morris view a video on patient care and advise her after
he had viewed the tape. A letter of apology was drafted by Castellano and signed
by Morris. Morris conceded that he may have been “less sensitive to the woman’s
needs that day” but felt that the patient had “overreacted.” The tape was later sent
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to Morris’ residence with what Morris viewed as a threatening note which he
interpreted to mean “fly straight or you are going to be fired.” Morris never
reported to Castellano that he had viewed the tape.
Around the same period the Clinic sought to increase the number of
physicians on staff. In February 2001 the Clinic made a job offer to Dr. Leslie
Choy-Hee, a female physician in the residence program at the University’s School
of Medicine. The Clinic also extended an offer to Dr. Todd Bashuk, a male
resident in the same program.
Two months later, in April 2001, another patient complained about Morris’
harsh treatment of her during a physical examination which she characterized as
“degrading.” The patient complained that Morris had an “animosity toward
women” and that his physical examination was “unnecessarily forceful compared
to other pelvic exams she has had.” She was ten weeks pregnant and complained
that because she was 39 years old, had experienced one miscarriage, and an
ovarian cyst, Morris informed her that she was the perfect candidate for follow-up
with a mid-wife. When she expressed opposition to this idea he informed her that
“this is not your call.”
As evidence of the unnecessary force used during the examination the
patient stated that she had been instructed by an assistant not to remove her bra
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prior to the examination. When Morris entered the examination room, however,
and discovered the patient was wearing a bra, he became upset and “ripped it over
her head.” Morris disputed that he ripped off the patient’s bra and speculated that
he may have assisted her if she appeared to be struggling with removing it. This
patient also complained that during the April visit Morris neglected to listen for
the fetal heartbeat as was customarily done by an obstetrician. A few days after
her examination she suffered a miscarriage and was told by an examining
physician that the fetus was probably dead when she was examined by Morris.
The physician noted that if Morris had listened for the heartbeat he would have
detected the problem.
Her complaint however was not limited to Morris. The patient also
complained that after her examination by Morris, while she was out of town she
called the Clinic for a referral for her sister’s obstetrician and spoke with Dr.
Jessica Arluck. The patient thought she was having a miscarriage and did not
want to go to the emergency room. She felt that Arluck was insensitive because
she responded to her request for a referral with “no – I’m at home, either call the
office or your insurance company.” The Clinic did not view the patient’s
complaint against Arluck in the same light as her allegations against Morris.
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Castellano was alarmed by the allegation concerning the bra and suggestion
that the patient see a midwife against her wishes – particularly in light of the prior
complaints. She began discussing firing Morris with the other physicians at the
Clinic including Dr. Arluck. Arluck volunteered that she “wanted [Morris] out of
the practice” because of the continuing problem with Morris’ treatment of his
patients. She indicated that the practice group at the Clinic would rather work
harder than have Morris damage the reputation of the Clinic.
In May 2001 Castellano and Hammonds met with Morris and informed him
that he was being placed on administrative leave. Morris understood that this
action was undertaken so that the Clinic could conduct an investigation into the
complaints. He maintains that he was not provided with specific details of the
undergarment incident. Following this meeting a letter was sent to Morris. It
stated that Morris was placed “on an Administrative Leave of Absence (with pay)
pending further investigation.” After the meeting Castellano spoke with different
physicians and administrators regarding the complaints against Morris and his
treatment of his patients.
Two weeks later Castellano and Hammonds met with Morris again.
According to them, during this meeting they presented Morris with an overview of
the two most recent complaints against him and provided him with an opportunity
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to rebut any of the allegations. Morris says that this meeting did not provide any
meaningful opportunity to explore the allegations and that he did not comment on
the complaints at the meeting. Castellano offered Morris the option of resigning
rather than having the Clinic terminate his employment. Morris opted not to
resign. As a consequence, Castellano sent Morris a letter dated May 25, 2001
providing him with 90 days notice of his termination pursuant to the employment
agreement. It stated that Morris’ employment with the Clinic was terminated
effective August 23, 2001 and that he would remain on administrative leave until
that date. Until this time he would continue to receive his salary but could not see
any patients at the Clinic.
During the summer of 2001 both Bashuk and Choy-Hee accepted their
employment offers and began working at the Clinic. Choy-Hee started on August
1, 2001, over two months after Morris’ discharge. She split her time between
Crawford Long and Clifton Road. Morris contends that the majority of her time
was spent at Clifton Road. Bashuk began working on July 15, 2001. He also
practiced at Clifton Road and another facility, the Perimeter location. The
Perimeter location later closed because the University downsized the number of
Clinic locations. For a brief period following the closure Bashuk worked at
Clifton Road before he ultimately resigned.
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After his termination Morris sued the Clinic for employment discrimination
under federal and state law including Title VII and the Age Discrimination in
Employment Act (ADEA). He contends that the Clinic discriminated against him
on the basis of both his sex and age when it terminated his employment and hired
Choy-Hee, a younger female. He also avers that the Clinic responded more
aggressively to patient complaints against him because he was an older male than
it did to similar complaints against other younger female physicians. The
complaints he identified however generally involved administrative failures (e.g.,
failure to return phone calls, lack of promptness in examining a patient, difficulty
in obtaining an appointment) or allegations of negligence in connection with a
medical procedure.
A magistrate judge in a detailed and lengthy order issued a report and
recommendation granting summary judgment to the Clinic on the federal claims
and dismissing the state claims. The magistrate judge held that Choy-Hee was
hired for a different location and therefore did not replace Morris. He also held
that Morris failed to identify similar complaints lodged against other physicians
who were treated favorably compared to him. Morris objected to the magistrate
judge’s order. The district court agreed with the magistrate judge and adopted his
report and recommendation. This appeal followed. We affirm.
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We review de novo a district court’s order granting a motion for summary
judgment and construe “all reasonable doubts about the facts in favor of the non-
movant.” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990). Summary
judgment is only appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Discrimination on the basis of an individual’s sex or age is unlawful. 42
U.S.C. § 2000e-2; 29 U.S.C. § 623(a). The critical question for us is whether
Morris created a genuine issue of material fact concerning whether his termination
was lawful. See Wright v. Southland Corp., 187 F.3d 1287, 1289 (11th Cir. 1999).
Put differently, did the Clinic discriminate against Morris on the basis of his sex
or age or were its actions the lawful result of patient complaints?
As we held in Wright Morris can avoid summary judgment in one of two
ways. See id. at 1290. He can use the traditional framework and use direct
evidence to create a triable issue of whether he was fired or treated less favorably
because he was an older male. See id. at 1291-92. Direct evidence is “evidence,
that, if believed, proves [the] existence of [a] fact without inference or
presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.
10
2004) (internal citation omitted). Or he can use the McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) framework.
McDonnell Douglas places a burden of production on the Clinic if Morris
can show that he was terminated or treated less favorably because of his age or
sex. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-7 (1993). Our inquiry
under McDonnell Douglas consists of three steps. First, Morris must first present
evidence that he was qualified to work at the Clinic and that he lost his position to,
or was otherwise treated less favorably than a younger female physician. See
Wright, 187 F.3d at 1290-91. If he does this, the burden then shifts to the Clinic to
offer a nondiscriminatory reason for its actions - the second step. See id. If the
Clinic fails to offer a legitimate explanation for its actions, Morris is entitled to a
judgment as a matter of law. See id. If however the Clinic offers a legitimate
explanation then Morris must take the third step. He must show the explanation is
inadequate, a mere pretext. See id. The result of this three step dance is that the
burden is always on plaintiff to show that defendant’s action is discriminatory.
See Hawkins v. Ceco Corp., 883 F.2d 977, 981 (11th Cir. 1989).
Under either the traditional method or the McDonnell Douglas framework,
Morris’ employment discrimination claim is without merit. He has no evidence
that age or sex played any role in the Clinic’s determination to terminate his
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employment. Rather than confront this deficiency in his case, on appeal Morris
cites several positive reviews he received while employed with the Clinic to show
that his dismissal was unwarranted. Our task however is not to second-guess
whether terminating Morris was a good or bad business decision by the Clinic.
Our review is limited to whether the Clinic has used age or sex as a basis to
terminate him or treat him less favorably.
Sex Discrimination
Morris’ allegations of direct evidence are unsupportable. He asserts that the
Clinic’s preference for a certain ratio of females to males at the Clifton Road
location shows direct evidence of discrimination against males. Without this
preference, Morris alleges that he would have been able to work at Clifton Road.
Morris cites numerous employment cases involving defendants making
discriminatory statements to the plaintiff to support his position. See, e.g.,
Lindsey v. Am. Cast Iron Pipe Co., 772 F.2d 799, 802 (11th Cir. 1985) (statement
that employer looking for “younger person”), Burns v. Gadsen State Cmty. Coll.,
908 F.2d 1512, 1518 (11th Cir. 1990) (statement that no woman would be named
to position).
The Clinic however did not make such a statement. To the contrary, other
males worked at the Clifton Road location and at least one other male physician,
12
Bashuk, was hired to perform duties there. The district court correctly concluded
Morris failed to present any direct evidence of unlawful sex discrimination.
The McDonnell Douglas framework is unhelpful to Morris. A plaintiff does
not shift the burden to the defendant under McDonnell Douglas merely by stating
that he was fired or treated unfavorably. McDonnell Douglas requires the plaintiff
to establish a prima facie case which includes identifying an individual who
replaced him or was treated better than he was who was not a member of his
protected class (here an older male). See Hawkins, 883 F.2d at 982. When
evaluating a replacement we have stated “[w]here the employee's position is
clearly delineated and responsibilities are well defined, the court should focus on
the person that physically replaced the employee or consider whether that job title
was actually filled.” Id. Only after the plaintiff has made his prima facie case
does the burden shift to the defendant.
Morris never makes it past the first step of McDonnell Douglas. He has not
identified any female physician who replaced him. He claims that he was replaced
by Choy-Hee, but the undisputed evidence shows that she was hired for the Clifton
Road location several months before the Clinic decided to terminate Morris.
Morris also fails to identify a female physician who received similar complaints
concerning off-color remarks about her patients’ ability to have children and who
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was accused of conducting forceful physical examinations who was not terminated
(or received favorable treatment). Without showing that a comparable female
received “nearly identical” complaints, we cannot adequately compare the Clinic’s
actions towards Morris and other female physicians. See Maniccia v. Brown, 171
F.3d 1364, 1368-69 (11th Cir. 1999). Finally Morris fails to explain how he is
disadvantaged by working at Crawford Long as opposed to Clifton Road. We
have identified no meaningful way to distinguish the two other than geography.
Accordingly the Clinic’s placement of Morris at the Crawford Long location is not
circumstantial evidence of discrimination.
Under the traditional framework or McDonnell Douglas, Morris cannot
connect his termination to his sex. Because Morris has not presented sufficient
evidence that he was treated less favorably than a female worker, we need not
evaluate the Clinic’s burden of production under the McDonnell Douglas
framework.
Age Discrimination
Morris failed to present any evidence of age discrimination - direct or
indirect using McDonnell Douglas. See Carter v. City of Miami, 870 F.2d 578,
582 (11th Cir. 1989) (applying McDonnell Douglas framework to age
discrimination claim). He did not identify a younger physician who replaced him.
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He also failed to show that any younger physician who received nearly identical
complaints was treated better than he was. Therefore the district court did not err
in dismissing this claim.
The district court adopted the magistrate’s ruling that because Morris was
not 40 years of age at the time of his termination, he was not within the class of
persons protected by the ADEA. We may agree with that legal principle, see 29
U.S.C. § 631, however we have identified nothing in the record to suggest that
Morris was under 40 years old at the time of his termination. While few people
would view Morris, aged 40, as old in relation to a person in mid to late 30s such
as Choy-Hee, we need not address this issue.
Health Care Quality Improvement Act
Morris invokes the Health Care Quality Improvement Act (HCQIA) to show
that the Clinic’s failure to adequately conduct an investigation before his
termination is evidence of employment discrimination. Indeed he carefully
outlines the hospital’s alleged failure to follow its own internal procedures and
other guidelines in its investigation and his termination. The HCQIA directs that a
hospital investigating one of its physicians report the results of its inquiry to the
national data bank. See 42 U.S.C. § 11133. Hospitals have immunity from
liability for complying with this statute unless the report filed is knowingly false.
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See 42 U.S.C. § 11137(c). There is no express private right of action under the
HCQIA.
At bottom Morris’ HCQIA claim is really about the Clinic allegedly not
conducting a full and thorough investigation before terminating him. While
Morris disputes the characterization of the patient complaints and the adequacy of
the Clinic’s investigation, without showing that sex or age played a role in his
termination he has no employment discrimination case.
This is not to say he is without legal recourse if the hospital in fact
arbitrarily revoked his staff privileges in violation of its bylaws. Under Georgia
law a physician may have a cause of action for a hospital’s revocation of staff
privileges without substantially complying with its bylaws. See O.C.G.A. § 51-1-
6; Lee v. Hosp. Auth., __ F.3d __, 2005 WL 172159 (11th Cir. Jan. 27, 2005).
Morris however has not alleged a cause of action under Georgia state law against
the Clinic for failure to comply with its bylaws in his termination as in Lee. Our
review therefore is limited to Morris’ legally insufficient discrimination claim.
AFFIRMED.
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