Knatt v. Hosp Svc Dist ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 12, 2009
No. 07-31027 Charles R. Fulbruge III
Clerk
THEODORE KNATT
Plaintiff-Appellant-Cross-Appellee
v.
HOSPITAL SERVICE DISTRICT NO. 1 OF EAST BATON ROUGE PARISH,
doing business as Lane Memorial Hospital; HERBERT C OWEN, JR,
Individually and in the capacity as the Board of Commissioners of Lane
Memorial Hospital; NICK F ADAMS, Individually and in the capacity as the
Board of Commissioners of Lane Memorial Hospital; ETTA K HEARN,
Individually and in the capacity as the Board of Commissioners of Lane
Memorial Hospital; STEVE STEIN, Individually and in the capacity as the
Board of Commissioners of Lane Memorial Hospital; CATHERINE A
POURCIAU, Individually and as the capacity as the Board of Commissioners
of Lane Memorial Hospital; ROBERT WILLIAMS, SR, Individually and in
the capacity as the Board of Commissioners of Lane Memorial Hospital;
RICHARD RATHBORNE, Individually and in the capacity as the
Executive/Bylaws Committee of Lane Memorial Hospital; JUAN MEDINA,
Individually and in the capacity as the Executive/Bylaws Committee of Lane
Memorial Hospital; DONALD FONTE, Individually and in the capacity as the
Executive/Bylaws Committee of Lane Memorial Hospital; TERRY
WHITTINGTON, FACHE, Individually and in his capacity as an Employee
and Chief Executive Officer of Lane Memorial Hospital; A KEITH
HEARTSILL, Certified Public Accountant, Fellow of the Healthcare Financial
Management Association, Individually and in his capacity as and Employee
and Chief Financial Officer of Lane Memorial Hospital; JENNIFER S
JOHNSON, Registered Nurse, Master of Science in Human Services
Administration, Individually and in her capacity as an Employee and Chief
Nursing Officer of Lane Memorial Hospital
Defendants-Appellees-Cross-Appellants
JERRY BOUDREAUX, Individually and in the capacity as the Board of
No. 07-31027
Commissioners of Lane Memorial Hospital; RONNIE MATTHEWS, Medical
Doctor, Individually and as Chief of Surgery at Lane Memorial Hospital;
KAREN REDMOND, Registered Nurse, Individually and in her capacity as
an Employee of Lane Memorial Hospital; JEANNE PARTIN, Registered
Nurse, Individually and in her capacity as Unit Director and an Employee of
Lane Memorial Hospital; LISA SHEPPARD, Individually and in her capacity
as an Employee of Lane Memorial Hospital; ELIZABETH FAYE POLLARD,
Licensed Practical Nurse, Individually and in her capacity as an Employee of
Lane Memorial Hospital; LAURA L PEEL, Licensed Practical Nurse,
Individually and in her capacity as an Employee of Lane Memorial Hospital;
KATHLEEN MATTHEWS, Individually and in her capacity as an Employee
of Lane Memorial Hospital; CLINO MELKER, Certified Registered Nurse
Anesthetist, Individually and in her capacity as an Employee of Lane
Memorial Hospital; JULIE W AUSTIN, Individually and in her capacity as an
Employee of Lane Memorial Hospital; DENISE S DUNN, Individually and in
her capacity as an Employee of Lane Memorial Hospital
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-00442
Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Dr. Theodore Knatt appeals the district court’s dismissal of several of his
claims against the hospital where he practiced, its administration and various
doctors and nurses who worked there. After hearing argument, considering the
briefs and undergoing an extensive review of the record, we affirm in part,
vacate in part, and remand to the district court.
*
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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FACTS AND PROCEEDINGS
In 1995, Knatt, who is black, was recruited by Lane Memorial Hospital
(“Lane”) to locate his orthopaedic surgery practice in Zachary, Louisiana. He
was very successful there.2 In early 2001, Knatt announced he intended to
invest in and spearhead development of Howell Place, a hospital-surgery center
and office building that would compete with Lane. Lane was invited to
participate in the project but declined. Knatt alleges that “[s]hortly after [he]
made it known that it was his intent to go forward with the Howell Place
Project,” he became subject to harassment and discrimination as part of a
conspiracy to destroy his practice. According to Knatt, the retaliation
culminated in his suspension from practice at Lane by the hospital’s Medical
Executive Committee (MEC).
The following facts were presented by the defendants relative to Knatt’s
summary suspension. Knatt suffered from personal medical problems in the
first half of 2002. He went to the emergency room twice for gastroesophageal
reflux disease (GERD), which sometimes caused his heart to race and his chest
to hurt. He also had neck pain with associated left shoulder pain. On April 26,
2002, Knatt saw an endodontist who initiated a root canal procedure. That
afternoon, he performed surgery at Lane. The OR technician and scrub
technician who assisted Knatt that day said that his behavior was different—he
scrubbed faster, was blank faced, moved slowly, and said he was not feeling well.
He asked for a stool to sit on, which they said was different from his usual
practice. The OR staff also reported that he had trouble putting instruments
together, dropped instruments and did not put them back in their slots, all of
which was out of character. The same technician observed Knatt acting in the
same way in surgery a week later and made a similar report to her supervisor.
2
For example, a study conducted by Lane in 2001 concluded that 29% of the income it
earned from the five orthopedic surgeons on staff was generated from Knatt’s surgeries.
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No. 07-31027
On May 6, 2002, Knatt returned to the endodontist for the completion of the root
canal. On May 7, Knatt performed a hip procedure at Lane. He was late and
had to be awakened twice because he was sleeping in the doctor’s lounge. Knatt
had trouble putting drapes on the patient and seemed sluggish. The nurses took
their concerns about Knatt to Jennifer Johnson, Lane’s Chief Nursing Officer,
and reported to her that they were concerned about the welfare of patients and
the working conditions with Knatt in the operating room.
The MEC, which consisted of Dr. Juan Medina, Dr. Donald Fonte, and Dr.
Richard Rathbone, had a regular meeting scheduled the next day on May 8.
After the committee concluded its regular business, Johnson told the MEC that
she had a confidential physician issue to bring to it. The MEC went into
executive session and Johnson presented the concerns about Knatt that the
nurses had reported. The next day, Fonte and Johnson met with some of the
nurses who were the source of the complaints about Knatt so Fonte could hear
them directly. Fonte reported back to Medina and Rathbone and they agreed,
under the MEC bylaws, to summarily suspend Knatt’s privileges at Lane. Their
decision was issued in a letter to Knatt. They asked Knatt to voluntarily submit
himself for an evaluation by the Physician’s Health Program of the Louisiana
State Board of Medical Examiners. The letter noted that Knatt had the right to
request a hearing in writing within seven days. Knatt hired an attorney and
requested a hearing, which was scheduled for May 22, 2002. The hearing was
later cancelled by Knatt’s counsel because of a conflict. Knatt, upon his request,
was also provided with documents concerning the basis of the peer review action.
On May 30, 2002, Knatt agreed to a compromise. The MEC withdrew the
suspension, which had been in place for 21 days, and replaced it with a separate
peer review action in the form of a “letter of reprimand.” Knatt agreed to the
language of the letter of reprimand, which addressed performing surgery after
dental treatments as well as other complaints by nurses about Knatt’s behavior,
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No. 07-31027
including anger, cursing, pushing or shoving hospital staff, not timely reporting
and starting scheduled surgeries, and utilizing support personnel who lacked
permission to practice at Lane.
Knatt apparently became unsatisfied with this resolution, and a second
appeal hearing was scheduled in October 2002. Prior to the hearing date, Knatt
and the MEC agreed to another compromise, under which the letter of
reprimand stood, but the MEC retroactively voided the summary suspension.
As part of this compromise, Knatt agreed not to sue the MEC members.
Knatt did not consider the matter resolved. In May, 2003 he filed suit in
Louisiana state court against the three MEC members, as well as Lane, Lane’s
CEO, CFO, and CNO, nine individual nurses, Dr. Ronnie Mathews, and the
individual members of the Lane Board of Commissioners. The allegations
included breach of contract, tortious interference with contract, unfair trade
practices, defamation, and race discrimination. Defendants removed the action
to the district court, where Knatt unsuccessfully moved to amend to add
additional claims and defendants. The denial of one motion to amend is before
the court on this appeal, and is discussed below. In a previous appeal, we
affirmed the dismissal of another set of new claims.3 The present appeal
concerns claims asserted in the original state court petition.
Knatt asserts that the summary suspension was a sham and part of a
larger conspiracy to ruin his practice. Among the evidence in a voluminous
record, he put forth evidence that several months before the suspension, the
hospital formed a committee consisting of doctors (who Knatt claims would be
3
Knatt attempted to amend to allege a conspiracy to destroy his business by
constructively evicting him from office space he leased from Lane. The district court denied
the motion to amend and Knatt instead filed a separate lawsuit, alleging breach of contract,
wrongful eviction, unfair trade practices, and discrimination, which the court consolidated
with this case. All claims in the second suit were dismissed and appealed to this court, which
affirmed the district court on bases that do not affect the resolution of the present appeal. See
Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish, 289 F. App’x 22 (5th Cir. 2008).
5
No. 07-31027
harmed by Howell Place) to investigate Knatt for “on call incidents.” There is
testimony that, while hospital staff were not asked to lie, they were told to place
Knatt under a microscope and report even minor infractions. Fonte, who led the
investigation, is a competing orthopedic surgeon, and the hospital admitted to
Knatt that it would be hurt by the Howell Place project. Jeanne Partin, Fonte’s
sister, played a role in assigning nurses to monitor Knatt and bring complaints
to the attention of the administration. The summary suspension immediately
followed a confrontation between Knatt and Partin in the operating room during
one of Knatt’s surgeries on May 7, 2002.4 Knatt argues that the incidents that
led to the summary suspension did not affect patient care, and that the real
reason for the suspension was a conspiracy against him among Fonte, Partin,
and the other defendants, based on unfair competition and race.
In a series of decisions, the district court dismissed all of Knatt’s claims
except three state law contract and tortious interference claims, which it
remanded to state court. In the last of its orders dismissing Knatt’s claims, the
district court expressed frustration with the advocacy on behalf of Knatt:
At the outset, this court notes that it was extremely generous in
deviating from the local rules by granting Plaintiff’s numerous
motions for leave to file excess pages and for extension of time to file
opposition. In considering the Plaintiff’s arguments, the court was
not helped by an 87-page opposition in which claims were not
specifically addressed or directly presented. Quoting pages of the
Magistrate Judge’s Report did not serve to advance Plaintiff’s
arguments with respect to the issues before this court. Additionally,
despite of [sic] all of the extensions granted, Plaintiff’s arguments
lacked conclusions, expressed incomplete thoughts, and in one
instance a blank needed filling in. Plaintiff’s counsel is admonished
to carefully proofread, edit, and complete future memoranda
submitted to this court.
4
Knatt asked that a particular physician assistant be called to assist him in the
procedure. Partin refused to call the physician assistant because she said he did not have
privileges at Lane, and a heated discussion ensued.
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No. 07-31027
These comments reflect a general pattern of a disjointedness in the presentation
of Knatt’s claims. His papers have been rich in conspiratorial narrative, but
frequently fail to explain how the alleged facts satisfy the requirements of
applicable law for the various claims.
Knatt now appeals the dismissal of his claims, and defendants appeal the
remand of the remaining state law claims to the state court.5
DISCUSSION
A. Questions Decided Unanimously
We begin with a discussion of issues on appeal upon which the court
unanimously agrees.
1. Motion to Amend
Knatt argues first that the district court abused its discretion in denying
his first motion to amend. This court reviews a district court’s ruling on a
motion to amend for abuse of discretion. Cambridge Toxicology Group, Inc. v.
Exnicios, 495 F.3d 169, 177 (5th Cir. 2007). In deciding whether to allow an
amendment under Federal Rule of Civil Procedure 15(a), a district court may
consider factors such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party, and futility of amendment. Price
v. Pinnacle Brands, Inc., 138 F.3d 602, 608 (5th Cir. 1998).
5
Knatt’s briefing on appeal suffers from problems similar to those discussed by the
district court. His brief includes no genuine statement of the issues, see FED R. APP . P.
28(a)(5), attempts to incorporate by reference entire pleadings filed below, fails to provide
consistent, appropriate citations to the appellate record (as opposed to the trial docket), and
repeatedly cites evidence and authority without grounding the discussion in the precedents
applicable to the particular claims under review. We do not mention these issues—some of
which would be minor concerns in isolation—to single out Knatt’s counsel. Unfortunately, we
receive many briefs with one or more of these problems. We consider it useful to set out of this
background, however, because the degree to which Knatt adequately presents certain
arguments is a matter of disagreement between this opinion and the dissent.
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No. 07-31027
The first claim sought to be added by Knatt in his amended petition
involved an allegation that Matthews (a previously named defendant) had
suggested to employees of another hospital that Knatt was impaired and had
problems at Lane. This exchange between Matthews and employees of the other
hospital allegedly occurred when Matthews inquired about Knatt’s conduct when
he practiced at that hospital. The incidents occurred before Knatt filed his
original complaint and he offers no explanation for omitting this claim in his
original petition. The district court did not abuse its discretion in refusing this
amendment.
The second claim relates to events that occurred after the filing of the
lawsuit and alleges that Matthews told another doctor that Knatt showed up
late for surgeries and that disciplinary actions had been taken against him. The
district court concluded that this allegation was being added solely to prevent
dismissal on the basis that the support for the allegation was an unsworn
statement from the physician who heard Matthews’ comments. Denying the
motion to amend was proper because the amendment would be futile. If the
allegation is true, Matthews was merely repeating allegations that had already
been made public by the filing of Knatt’s suit. These allegations cannot support
any claim against Matthews.
The final claim Knatt sought to add was that Richard Sessoms, a Lane
Board member who was not a named defendant, brought a malicious complaint
against Knatt that falsely accused Knatt of inadequate patient care. Knatt’s
motion in support of the amendment states that Sessoms brought the complaint
as a board member to the board of directors. The board investigated the claim
and no action was taken against Knatt. Knatt does not explain how these facts,
if proven, would support any type of claim. The district court did not abuse its
discretion in denying Knatt’s motion.
2. Statute of limitations
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No. 07-31027
Knatt argues next that the district court erred in dismissing defendant
Matthews on the basis of prescription. As noted by the district court, all of the
allegations in Knatt’s petition that refer to Matthews concern events that
occurred more than one year before the lawsuit was filed. There is no dispute
that one year is the applicable prescriptive period. Knatt argues that because
he alleges a conspiracy including Matthews, acts extending beyond the
prescriptive period are actionable. This argument has no merit on the facts of
this case. Under Louisiana Civil Code Article 2324(C), prescription is
interrupted against all joint tortfeasors by the filing of a timely lawsuit against
one joint tortfeasor. This provision works prospectively only, by tolling
prescription against even unnamed joint tortfeasors. Article 2324(C) does not,
however, revive a prescribed claim against a joint tortfeasor by filing a timely
claim against another joint tortfeasor.
3. Summary Judgment for Drs. Rathbone, Medina, and Fonte
Knatt’s next issue on appeal concerns the district court’s decision to grant
the motion for reconsideration of Rathbone, Medina, and Fonte on their motion
for summary judgment. As a result of the ruling on the motion for
reconsideration, the district court granted their motion for summary judgment.
The basis for the motion was that Knatt had compromised his claims against
them as members of the MEC and agreed, as part of that compromise, not to sue
these doctors “with respect to the issuance of the summary suspension.” The
district court limited the ruling to grant summary judgment “only to the extent
that plaintiff now attempts to assert a claim against these defendants ‘with
respect to issuance of the summary suspension.’” Knatt argues that the ruling
is in error because there was no meeting of the minds on the meaning of
“issuance,” because he did not agree not to sue the defendants for failure to
maintain the confidentiality of the peer review process and because the
defendants’ fraud against him based on their alleged roles in the conspiracy
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No. 07-31027
vitiated the compromise. These arguments are without merit. Knatt was
represented by counsel throughout the suspension process and the district court
restricted the judgment to the plain language of the compromise agreement and
the three defendants protected by that agreement.
4. LUTPA
Knatt also appeals the dismissal of his claims under LUTPA against the
individual defendants and Lane. He alleged that the defendants conspired to
prevent him from providing services in his medical practice outside of a
conventional hospital setting by destroying his reputation in the Zachary
community and interfering with his plans to move his practice to Howell Place.
LUTPA declares unlawful “[u]nfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” L A. R EV.
S TAT. § 51:1405(A). Trade or commerce is defined in the statute as “the
advertising, offering for sale, sale, or distribution of any services and any
property, corporeal or incorporeal, immovable or movable, and any other article,
commodity, or thing of value wherever situated, and includes any trade or
commerce directly or indirectly affecting the people of the state.” L A. R EV. S TAT.
§ 51:1402(9).
The district court first found that Knatt lacked standing to bring a LUTPA
claim against any defendants except Lane and Fonte. To have standing to bring
a private action under LUTPA, the plaintiff must be a direct consumer or
business competitor of the defendant. Computer Mgmt. Assistance Co. v. Robert
F. DeCastro, Inc., 220 F.3d 396, 405 (5th Cir. 2000); Gardes Directional Drilling
v. U.S. Turnkey Exploration Co., 98 F.3d 860, 868 (5th Cir. 1996). Knatt argues
that all of the other defendants were co-conspirators with Fonte and Lane, and
that he has standing to sue them pursuant to Louisiana Civil Code Article
2324(A), which states that “He who conspires with another person to commit an
intentional or willful act is answerable, in solido, with that person, for the
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No. 07-31027
damage caused by such act.” Louisiana courts are split over whether co-
conspirators may be sued under LUTPA. Compare Vermilion Hosp., Inc. v.
Patout, 906 So. 2d 688, 692 (La. App. 3d Cir. 2005) (now allowing conspirators
to be sued), with Strahan v. State, 645 So. 2d 1162, 1165 (La. App. 1st Cir. 1994)
(holding that the State, a non-competitor, could be sued for conspiring with a
competitor) and S. Tool & Supply, Inc. v. Beerman Precision, Inc., 862 So. 2d
271, 276 (La. App. 4th Cir. 2003) (finding that a supplier was liable to a
distributor for “acting in concert” with two other distributors). The application
of LUTPA to all of the defendants—including Lane and Fonte—presents difficult
issues of state law. As we uphold summary judgment on all of Knatt’s federal
claims, only state law claims remain. We therefore vacate the district court’s
dismissal of Knatt’s LUTPA claims and remand for reconsideration to determine
if, in comity, the district court should decline to exercise jurisdiction over these
claims.
5. Defamation
The district court also dismissed Knatt’s claims for defamation against
various defendants.6 To state a claim for defamation, the plaintiff must
establish (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or
implied, and (5) resulting injury. Cangelosi v. Schwegmann Bros. Giant Super
Mkts., 390 So. 2d 196, 198 (La. 1980) (citations omitted).
The district court dismissed the defamation claims against various nurses
for lack of publication because Knatt’s complaint only alleges statements by the
nurses to other hospital personnel related to their work. Statements made
between employees in the course and scope of their employment are not
6
The issue was presented to the district court in a Motion to Dismiss Certain Claims
or, in the Alternative for Partial Summary Judgment filed by the defendants. Because Knatt
submitted affidavits and other evidence to the court, which was not excluded, the motion is
treated as one for summary judgment. See FED . R. CIV . P. 12(d).
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No. 07-31027
statements communicated or publicized to third persons so as to constitute
publication for a defamation claim. Doe v. Grant, 839 So. 2d 408, 416 (La. App.
4th Cir. 2003). The defamation claim against Lane was dismissed for lack of an
allegation that Lane acted to deter patients and medical professionals from
associating with Knatt by means of defamatory statements. The defamation
claim against Fonte was dismissed based on prescription because the statement
Fonte was alleged to have made took place more than one year before suit was
filed.
Knatt argues generally that several affidavits he submitted in support of
his opposition memo establish material issues of fact regarding the defamatory
nature of the statements about him. After careful review, we conclude that this
evidence cannot support a defamation claim against any of the defendants. It
does not identify a speaker, a false statement, or the context in which the
statement was made. Rather, it establishes only that there was general talk
among a number of persons about Knatt’s suspension and the reason for it.
Knatt also argues that Lane published Knatt’s suspension. The vague
anonymous reference in the MEC’s minutes that “a physician” was referred to
the Physicians Health Program is not actionable because the statement does not
identify Knatt as the “physician” and because it is true. Knatt also takes offense
at responses sent by Lane to hospitals seeking credential information about
Knatt. A response sent by Lane states no disciplinary action had been imposed
against Knatt with a parenthetical disclaimer “(exceeding 30 days).” Knatt
reads the statement as stating that he has not been subject to disciplinary action
in the last 30 days. That is not an accurate interpretation of the letter. The
letter clearly states that Knatt has not been subject to disciplinary action that
exceeded 30 days. The contents of the letter are also true and cannot support a
defamation claim.
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No. 07-31027
In summary, the district court did not err in dismissing Knatt’s
defamation claims.
6. Motion for Certification
Knatt argues that the district court abused its discretion in denying his
motion for certification under Federal Rule of Civil Procedure 54(b) after most
of his claims were dismissed before discovery commenced. He recognizes that
the court has great latitude on this issue and we find that there was no abuse of
discretion.
B. Section 1983 and 1985 Claims
While we have unanimously agreed on the outcome of the issues discussed
above, the dissent takes issue with the court’s disposition of two final claims. We
provide a more detailed discussion of these issues, in order to address the
concerns of the dissent.
1. Section 1983
Knatt contends that the conspiracy to ruin his practice and subject him to
a “sham peer review” after he announced his involvement in Howell Place also
included race discrimination actionable under 42 U.S.C. § 1983. Knatt testified
that the defendants treated him differently because of his race from the
beginning of his association with Lane,7 but that, as summarized in his brief,
“after Lane declined participation with Dr. Knatt in the Howell Place project, a
pattern and practice of harassment and discrimination, [sic] escalated and peer
review activity and unfair trade practices were initiated . . . against Dr. Knatt.”
The district court dismissed Knatt’s claim under 42 U.S.C. § 1983 on a motion
for summary judgment. We review a grant of summary judgment de novo. Paul
v. Landsafe Flood Determination, Inc., 550 F.3d 511, 513 (5th Cir. 2008).
Summary judgment is appropriate only where there are no genuine issues of
7
For example, he claims this included “doctors wanting to send him all of the indigent
and Medicaid patients.”
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No. 07-31027
material fact and the moving party is entitled to judgment as a matter of law.
Id. We view facts and inferences in the light most favorable to Knatt. Id.
The summary judgment test for discrimination claims under § 1983 is the
same as the test for discrimination claims under Title VII. See Patel v. Midland
Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002). A plaintiff may use
either direct or circumstantial evidence to prove a case of intentional
discrimination, though “[b]ecause direct evidence is rare, a plaintiff ordinarily
uses circumstantial evidence to meet the test set out in McDonnell Douglas.”
Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994).
Analysis under the well-established McDonnell Douglas framework proceeds as
follows: (1) the plaintiff must first establish a prima facie case of discrimination;
(2) the burden then shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the employment action; and if that burden is
satisfied, (3) the plaintiff must offer evidence that the proffered reason is a
pretext for racial discrimination. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04 (1973). The district court evaluated Knatt’s discrimination
claims under McDonnell Douglas, and Knatt briefs them on appeal within that
framework.8
We agree with the district court—and the dissent appears to as well—that
Knatt failed to establish a prima facie case sufficient to survive summary
judgment under the McDonnell Douglas standard. To establish a prima facie
case, Knatt must show that: (1) he is a member of a protected class, (2) he was
qualified for staff privileges, (3) he suffered an adverse employment action, and
8
Knatt’s arguments regarding race discrimination are at times, to quote the district
court, “difficult . . . to discern.” Nonetheless, it is clear that the legal framework guiding his
arguments is the McDonnell Douglas framework applied below. He states that “[c]laims
brought pursuant to 42 U.S.C. § 1983 require analysis under a burden shifting analysis,” citing
case law applying McDonnell Douglas, and devotes nine pages to discussing the “others
similarly situated” element of the prima facie case, which we consider to be the determinative
element in the analysis.
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No. 07-31027
(4) others similarly situated were more favorably treated. See Rutherford v.
Harris County, 197 F.3d 173, 184 (5th Cir. 1999). There is no dispute that Knatt
satisfies the first two requirements, and we presume that the 21 day summary
suspension constituted an adverse employment action.9 We agree with the
district court, however, that Knatt failed to show that others similarly situated
were more favorably treated.
“[I]n order for a plaintiff to show disparate treatment, [he] must
demonstrate that the misconduct for which [he] was discharged was nearly
identical to that engaged in by an employee not within [his] protected class
whom the [hospital] retained.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212,
221 (5th Cir. 2001) (internal quotation marks and alteration omitted). “[T]he
conduct at issue is not nearly identical when the difference between the
plaintiff’s conduct and that of those alleged to be similarly situated accounts for
the difference in treatment received from the employer.” Id.
Knatt provides evidence of five white doctors who he alleges were more
favorably treated. In only one of those cases, however, was the doctor impaired
while in the operating room, and that doctor was also suspended. The alleged
doctors were:
1) Demerol Dr.—This doctor stole Demerol from the emergency room
and was allowed to resign; there are no allegations that he operated
while under the influence of the drug.
2) Pneumothoraxes Dr.—This doctor performed an operation badly,
causing the patient’s lung to collapse. This event allegedly occurred
almost 20 years ago, and concerned a doctor performing an
operation incorrectly, not performing while impaired.
9
The district court held there was no adverse employment action, because only the
summary suspension qualified, and Knatt had agreed not to sue the individuals who made
that decision. We do not decide whether this analysis was correct, because we find the prima
facie case deficient on other grounds.
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No. 07-31027
3) Unknown Dr.—Fonte testified that there was at one point a doctor
who was acting strangely in the operating room and that he was
suspended from performing operations.
4) Dr. RD—This doctor failed to show up to work and there are
allegations of a car accident and drug abuse. He failed to meet with
any of the doctors who contacted him, and was summarily
suspended. Again, there is no question of impairment during
surgery, and this doctor was in fact summarily suspended.
5) Dr. WM—This doctor inserted a subclavian in an unprofessional
manner, ignoring proper technique. There are no allegations that
he was impaired when he performed the operation.
With this evidence, Knatt has not identified a case where a white doctor
was impaired in the operating room and was not suspended. In fact, some of
these cases demonstrate that when doctors at Lane were impaired, they were
suspended. Knatt has failed to establish a prima facie case of disparate
treatment, and we need go no further under the McDonnell Douglas framework.
The dissent suggests, however, that Knatt should survive summary
judgment on the theory that he presented sufficient direct evidence of actionable
race discrimination to survive summary judgment without satisfying McDonnell
Douglas. We consider this an inappropriate basis to decide the case, because
Knatt presents no such argument.
It is our general policy to treat litigants as masters of their own legal
theories, and to require that they adequately present an issue or theory before
we will consider it. A party that asserts an argument on appeal, but fails to
adequately brief it, is deemed to have waived it. United States v. Skilling, 554
F.3d 529, 568 n.63 (5th Cir. Jan. 6, 2009) (citing United States v. Lindell, 881
F.2d 1313, 1325 (5th Cir. 1989)). It is not enough to merely mention or allude
to a legal theory. See, e.g., McIntosh v. Partridge, 540 F.3d 315, 325 n.12 (5th
Cir. 2008) (“McIntosh occasionally mentions an ‘equal protection’ claim in
conjunction with his due process claim, but this claim is inadequately briefed
16
No. 07-31027
and is hence waived.”). We have often stated that a party must “press” its
claims. See, e.g., Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (“Claims not
pressed on appeal are deemed abandoned.”). At the very least, this means
clearly identifying a theory as a proposed basis for deciding the case—merely
“intimat[ing]” an argument is not the same as “pressing” it. Cf. FDIC. v. Mijalis,
15 F.3d 1314, 1326–27 (5th Cir. 1994) (“If a litigant desires to preserve an
argument for appeal, the litigant must press and not merely intimate the
argument during the proceedings before the district court.”). In addition, among
other requirements to properly raise an argument, a party must ordinarily
identify the relevant legal standards and “any relevant Fifth Circuit cases.”
Skilling, 554 F.3d at 568 n.63; see also F ED. R. A PP. P. 28(a)(9) (stating that
briefs must include “contentions and the reasons for them, with citations to the
authorities . . . on which the appellant relies.”); Coury v. Moss, 529 F.3d 579, 587
(5th Cir. 2008) (deeming estoppel argument waived where defendants cited cases
but failed to “explain how these cases constitute authority for their bare
assertion that [plaintiff] is estopped to bring this litigation”). We look to an
appellant’s initial brief to determine the adequately asserted bases for relief. See
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all
issues not raised and argued in its initial brief on appeal.”).
In light of these standards, Knatt did not adequately present for our
review a direct evidence discrimination theory. None of the sixteen
discrimination-related headings in the Table of Contents to Knatt’s brief (which
doubles as his statement of issues) mentions direct evidence analysis. Knatt
argues multiple elements of McDonnell Douglas, which was the basis on which
the district court decided the case, but nowhere acknowledges direct evidence as
an alternative to the McDonnell Douglas analysis.
Indeed, Knatt’s discrimination arguments mention “direct . . . evidence”
only once, under a heading addressing an element of the district court’s
17
No. 07-31027
McDonnell Douglas analysis.10 This section argues, with practically no authority
to place the argument in legal context,11 that the entire peer review process
should be considered an adverse employment action. As the brief puts it, the
adverse action was “not simply the summary suspension, but is a pattern and
practice of conspired bad-faith activity clothed as peer-review to [sic] in an effort
to have the defendants hide behind a shield of immunity and a defense to
legitimate claims.” It then argues that the peer-review process was motivated
by racial animus, because Knatt presented testimony that certain doctors and
nurses who contributed to it had employed racial epithets.12 It is at this point
that Knatt mentions direct evidence, stating that “[t]his case is plagued with
direct and circumstantial evidence of racial animus being a motivating factor in
the harassment, deception and discrimination that led to the sham peer-review.”
Thus, Knatt recites the phrase “direct and circumstantial evidence”
without acknowledging the difference between the two categories, and without
citing any authority. He does not argue (1) that the district court should have
applied a direct evidence standard rather than McDonnell Douglas, or (2) that
his claim satisfies a direct evidence standard as set forth in relevant precedent.
Finally, he uses the phrase in the context of a meritless argument criticizing the
district court’s McDonnell Douglas analysis. The entire peer review cannot be
an adverse employment action, because “an adverse employment action consists
of ultimate employment decisions such as hiring, granting leave, discharging,
10
The heading reads: “(3) Whether the trial court erred in finding that the adverse
action was the suspension as opposed to the bad faith ‘sham’ peer-review.”
11
At the outset of this section, Knatt does briefly reference the “hostile work
environment” theory of discrimination. See generally Frank v. Xerox Corp., 347 F.3d 130, 138
(5th Cir. 2003). The district court held, however, that in the proceedings below Knatt
abandoned his hostile work environment claims through inadequate briefing. Knatt fails to
show that this ruling was erroneous.
12
The defendants contest these allegations, but we interpret the record in the light
most favorable to Knatt, and assume they are true.
18
No. 07-31027
promoting, and compensating.” Pegram v. Honeywell, Inc., 361 F.3d 272, 282
(5th Cir. 2004) (internal quotation omitted). In this context, Knatt’s mention of
the phrase “direct and circumstantial evidence” does not raise an adequately-
briefed argument that Knatt can survive summary judgment because of direct
evidence of discrimination. Because Knatt failed to adequately raise, argue, or
brief any issue regarding the direct evidence method before us on appeal, he has
waived any such argument.
Even assuming, arguendo, that it were appropriate to consider a direct
evidence theory, the district court’s grant of summary judgment on these claims
would still be correct. Direct evidence is evidence which, on its face and without
inference or presumption, shows that an improper criterion served as a basis for
an adverse employment action. See Fabela v. Socorro Indep. Sch. Dist., 329 F.3d
409, 416 (5th Cir. 2003). As espoused by the dissent, the direct evidence theory
depends almost entirely on the deposition of Marlene Bucionne, a nurse
terminated by Lane who at one point maintained a lawsuit against Lane with
representation from Knatt’s counsel.13 She testified, vaguely and equivocally,
that various nurses and doctors at Lane used the “N-word.” Her testimony does
not support a direct evidence theory of discrimination.
Our cases have recognized, and we repeat, that “the term ‘nigger’ is a
universally recognized opprobrium, stigmatizing African-Americans because of
their race.” Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.
1993); see also Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 993 (5th Cir.
2005) (“[R]acial epithets undoubtably demonstrate racial animus.”) There is no
disagreement between the majority and dissent on this point. To establish
illegal employment discrimination, however, it is not enough to present evidence
that an employer or coworker used racial epithets at some point in the past.
13
The dissent states this testimony provides merely the “most graphic” evidence in the
midst of other “extensive” evidence, but only cites additional circumstantial evidence.
19
No. 07-31027
Under the established case law of this circuit, for comments in the workplace to
serve as evidence of discrimination, they must be: (1) related to the protected
class, (2) proximate in time, (3) made by an individual with authority, and (4)
related to the employment decision. Jenkins v. Methodist Hosps. of Dallas, Inc.,
478 F.3d 255, 261 (5th Cir. 2007).
The dissent claims that “at least two of the three doctors on the MEC, Dr.
Rathbone and Dr. Medina, used racial epithets in reference to Dr. Knatt at a
meeting involving the investigation of Dr. Knatt.” If this were correct, it would
satisfy Jenkins. But Bucionne’s deposition does not support this assertion, and
does not otherwise support the conclusion that members of the MEC used the N-
word in a manner that was proximate in time, and related to, the summary
suspension decision. Knatt’s counsel repeatedly sought to elicit testimony that
the MEC members used the N-word in connection with Knatt’s summary
suspension, but Bucionne testified only that (1) she had heard the MEC
members use the word at unspecified times, (2) other nurses had used the word
to refer to Knatt (and in one case, his wife), and (3) on certain occasions during
the summary suspension controversy numerous individuals used the word.
When pressed for detail (by Knatt’s attorney) on who exactly used the word in
what context, Bucionne either changed the subject, changed her testimony, or
related instances where nurses had used the word.
In particular, counsel tried to elicit testimony that the three members of
the MEC used the N-word in a May 16, 2002 meeting with nurses,
approximately a week after the suspension decision. Bucionne said she did not
remember the meeting, and that “[y]ou will have to refresh my memory,” but
then said she recalled it when counsel informed her that others had testified
about it. Bucionne initially stated that Rathbone and Medina used the N-word
at the meeting, but then retreated from that testimony and ultimately testified
20
No. 07-31027
that she remembered literally nothing concerning the meeting. The discussion
included the following exchange:
Q . . . And what physicians do you say were using the nigger
word constantly?
A Dr. Rathbone.
Q Anybody else?
A Dr. Medina.
Q Anybody else?
A In that particular meeting?
Q Well, I guess anywhere in the hospital.
A Oh, anywhere. I could not begin to give you the string of
names.
Q So in this meeting on May 16, 2003, Dr. Rathbone and Dr.
Medina used the word nigger?
A I believe it was in the conference call that we all sat around,
but afterwards, when we were leaving, the N word was used
a lot.
Q Who was using it a lot?
A Pretty much everyone. At this time I didn’t know this was
going to blow into this. So when the N word was brought up,
I didn’t turn and say I am going to remember you said that
word.
Q In what context was it being used?
A I just told you. They are going to bring in their own kind.
This last answer suggested that Bucionne had confused this meeting with
lunchroom conversations, at an earlier unspecified time, regarding a different
21
No. 07-31027
black doctor, Dr. Lewis.14 Counsel asked “maybe I am misunderstanding. I
thought the meeting that you were meeting with was in connection with Dr.
Knatt’s suspension; is this some other meeting?” Bucionne did not clarify her
answer, instead stating “There were numerous meetings that we had about Dr.
Knatt.” Counsel tried to return to the subject of the May 16 meeting several
times thereafter, until Bucionne finally clarified that she remembered nothing
at all about it:
Q . . . I only want to know about this meeting on May 16, with
the three doctors. What do you know?
A Due to the traumatic experience I experienced at the end,
right before my surgery, I don’t recall anything.
Q What traumatic experience did you have?
A I was having a vaginal hysterectomy, and I was very upset
about this, and on women who have children, your
children—once it was their home. As a female, it is pretty
personal. I feared for my life. . . . I was fixing to go on leave,
and then the phone rang and it was Ms. Partin, and she
stated I no longer had a job, that they were downsizing. So I
went to the hospital; my vitals were unstable. . . . So I think,
because of all this trauma, I just don’t recall a meeting.
These exchanges are typical of the indefiniteness and confusion that pervade the
Bucionne deposition.
The only individuals with authority over the summary suspension were
members of the MEC,15 and Nurse Bucionne provided no specific comments and
14
Bucionne previously testified that “when Dr. Lewis came into practice,” nurse Karen
Redmond had been “the ringleader of” lunchroom discussions speculating that black doctors
would attract patients incapable of paying their medical bills.
15
The dissent argues that we should consider racist comments made by hospital staff
in determining whether the summary suspension was racially motivated. But it does
not—and cannot—point to any cases where racist comments by co-workers or staff were
evidence of racial discrimination by the employer. Our case law is very clear that for
22
No. 07-31027
no context for when and how the members of the MEC may have used racial
epithets. She never alleges with sufficient particularity that any of those
members used racial epithets in connection with the employment decision at
issue, and none of the comments she discusses meet the Jenkins criteria.16
Accordingly, her testimony would not allow Knatt to survive summary judgment
on a direct evidence theory.
Knatt has failed to present evidence that would allow him to avoid the
McDonnell Douglas framework—an argument he failed to brief—nor does he
have sufficient evidence to survive summary judgment under that framework.
We therefore affirm the district court’s grant of summary judgment in favor of
the defendants on the § 1983 claim.
2. Section 1985(3)
Section 1985(3) has unusual wording and a complex set of elements. See
generally Ernest v. Lowentritt, 690 F.2d 1198, 1202 (5th Cir. 1982). Knatt
alleges that the district court failed to consider his § 1985(3) claim using the
correct standard of proof. But the only argument offered consists of the
statement that “This issue is fully briefed in plaintiff’s opposition . . . and
incorporated herein as if copied in enxtenso [sic],” as well as citation to a single
case that discusses not § 1985(3) but § 1983. We will not go searching through
the record to find Knatt’s arguments on this issue. Based on the principles
comments to serve as evidence of discrimination, they must be made by an individual with
authority. See Jenkins, 478 F.3d at 261. These nurses were certainly not in a position of
authority over Knatt.
16
This case differs from Jones v. Robinson Property Group, where we noted that the
testimony “cite[d] specific statements and, especially in light of the summary judgment
standard, [the plaintiff] prove[d] with sufficient particularity when the statements were made
and generally who made them.” 427 F.3d at 993. We found that the “testimony clearly and
explicitly indicate[d] that decision maker(s) . . . used race as a factor in employment decisions,
which is by definition direct evidence of discrimination.” Id. In contrast, no rational
fact-finder could conclude that the MEC suspended Knatt on account of his race based on the
testimony of Nurse Bucionne.
23
No. 07-31027
articulated above, Knatt has waived his § 1985(3) claim through inadequate
briefing.
C. Remand of remaining claims to state court
Finally, the defendants cross appeal the district court’s decision to remand
the remaining state law claims to Louisiana state court. Though we find no
error or abuse of discretion in the district court’s remand of these claims to state
court, we vacate this decision and remand so that the district court may consider
all of the state law claims together, including the remanded LUTPA claim.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed
except as to the dismissal of Knatt’s LUTPA claims and the remand of the
remaining claims to state court. These decisions are vacated and the case is
remanded to the district court for further proceedings consistent with this
opinion.
AFFIRMED in part, VACATED in part, REMANDED.
DAVIS, Circuit Judge, dissenting:
I respectfully dissent from section B. of the majority opinion. In that
section, the majority gives its reasons for affirming the district court’s dismissal
of Dr. Knatt’s claims under § 1983 and § 1985(3) on summary judgment. The
district court dismissed the § 1983 claims on the basis that Dr. Knatt failed to
establish a prima facie case of discrimination under the McDonnell Douglas test.
On both the § 1983 claim and the § 1985 claim, the district court concluded that
Dr. Knatt did not establish that race played a part in his summary suspension.
The main question we have in this case is the usual one we face in
summary judgment cases: whether the plaintiff produced sufficient evidence to
raise a genuine issue of material fact on a key issue. In this case the key issue
24
No. 07-31027
is whether race played a role in the defendants’ suspension of Dr. Knatt from
practicing as a physician at Lane.
Dr. Knatt was entitled to raise genuine issues of fact on this issue in two
ways. First, he could present direct evidence of discrimination. Portis v. First
Nat’l Bank, 34 F.3d 325, 328 (5th Cir. 1994). Because Dr. Knatt’s claims are
employment related and in that context direct evidence of discrimination is rare,
Dr. Knatt could alternatively use the standard set out in McDonnell Douglas to
establish an inference of discrimination. Id. Contrary to the majority’s
description, the McDonnell Douglas approach is simply an additional, easier
weapon a plaintiff has in his arsenal to prove the fact at issue: discrimination.
The invocation of McDonnell Douglas does not supplant the traditional direct
evidence method of proof. If the plaintiff can demonstrate the existence of a
material fact tending to show discrimination either by direct evidence or through
the method established by McDonnell Douglas, he can avoid summary judgment.
Therefore, when Knatt alleged and argued that race played a role in his
employer’s decision to suspend him, Knatt was entitled to prove this fact either
by direct evidence or the McDonnell Douglas standard. Once the district court
grants summary judgment, our task is to review that ruling de novo and
consider “the record taken as a whole” drawing “all reasonable inferences in
favor of the nonmoving party” and refrain from making credibility
determinations or weighing of the evidence. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000)(internal quotation marks and citations
omitted).
This review includes consideration of whether a fact issue has been raised
either under the McDonnell Douglas standard or the traditional direct evidence
method of proof. For example in Jatoi v. Hurst-Euless-Bedford Hospital
Authority, although the plaintiff failed to meet all four criteria of the McDonnell
25
No. 07-31027
Douglas test, this court went on to examine the summary judgment record as a
whole to determine if summary judgment was appropriate.
While proof of all four of the McDonnell Douglas criteria will
establish a circumstantial prima facie case, such proof is not the
exclusive means of establishing a plaintiff's preliminary burdens. In
Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir.1982) the
plaintiff established the first three criteria but could not establish
the fourth because his position had been filled by another minority.
As we stated in Byrd, "the focus of the inquiry may not be obscured
by the blindered recitation of a litany." 687 F.2d at 86. If a plaintiff
cannot establish some or all of the McDonnell Douglas steps, the
district court must examine all the evidence that has been adduced
for other indicia of racial discrimination relating to his discharge
and determine whether it is more likely than not that the
employer's actions were based on illegal discriminatory criteria. Id.
Jatoi v. Hurst-Euless-Bedford Hospital Authority, 807 F.2d 1214, 1219 (5th Cir.
Tex. 1987)(emphasis added).
Racial animus, like any other fact, can be established by direct or
circumstantial evidence. For example, in Fierros v. Tex. Dep't of Health, 274
F.3d 187, 195 (5th Cir. Tex. 2001), to determine whether the district court erred
in granting summary judgment in favor of defendants on the element of
causation, this court reviewed Fierros’ direct evidence of a statement her
supervisor made to her that she had been denied a pay increase because she had
filed a discrimination claim against him. It also considered the circumstantial
evidence that supported the finding that discriminatory motive was present.
The summary judgment record includes an affidavit in which
Fierros states that Arnold told her that she had been denied the pay
increase because she filed a discrimination complaint against him.
Such an affidavit is direct evidence that Arnold had a retaliatory
motive because it "is evidence which, if believed, proves the fact [of
intentional retaliation] without inference or presumption."
...
Our determination that Fierros has raised a jury question about
whether Arnold intended to retaliate against her when he denied
26
No. 07-31027
her the merit pay increase is further supported by circumstantial
evidence.
Id.
Thus, this court can look at all evidence in the record, both direct and
circumstantial, to determine if Dr. Knatt has raised a genuine issue of material
fact for trial. Dr. Knatt argued both in the district court and in this court that
he was entitled to defeat the summary judgment motion based on the direct and
circumstantial evidence which he described in his brief. Two full pages of Dr.
Knatt’s brief are dedicated to a discussion of evidence of racial animus and how
that evidence establishes discrimination. The remainder of the circumstantial
evidence is discussed throughout his brief. Despite the fact that this is Dr.
Knatt’s central argument in this appeal, the majority concludes that this issue
is inadequately briefed to preserve the argument on appeal. Apparently the
majority would require Knatt to tag each item of evidence as either supporting
his argument of discrimination under the McDonnell Douglas standard or his
argument of discrimination based on direct and circumstantial evidence. Such
a requirement makes no sense. If a plaintiff can raise a genuine issue of
material fact tending to show discrimination, the defendant’s motion for
summary judgment must be denied.
Dr. Knatt complains of a conspiracy at the hands of the defendants that
began before his suspension. Beginning in October 2001, an Ad Hoc Committee
was appointed by the Executive Bylaws Committee of the Board of Lane
Memorial to single out Dr. Knatt to review complaints about him, particularly
any on-call incidents. The review lasted until January 2002. According to the
deposition testimony of Dr. Rathbone and Dr. Fonte, the Board has never
appointed a committee to investigate a hospital physician for on-call violations
except Dr. Knatt.
27
No. 07-31027
The most graphic evidence of racial animus was provided by surgical nurse
Marlene Bucionne. She testified that the nurses were ordered by Jeanne Partin
(nurse supervisor and sister of orthopedic surgeon Dr. Fonte), Dr. Fonte and
Terry Whittington, CEO, to monitor Dr. Knatt’s activities closely and document
anything they could find on which to base a reprimand. This documentation was
to be delivered to hospital officials and administration. Dr. Knatt argues that
this supports his argument that hospital officials were looking for a reason to get
rid of him and supports his statements that the complaints by the nurses of Dr.
Knatt’s behavior in surgery were false or exaggerated. Lane Memorial Board
Member Etta Hearn wrote to CEO Whittington complaining of the baseless
complaints about Dr. Knatt by the nurses in March 2002. Dr. Knatt testified
that the complaints of the nurses in general and those that led to his suspension
were false or overstated. He also provided evidence that similar complaints
about other doctors, including Dr. Fonte, were not acted upon.
The extensive evidence presented by Dr. Knatt supports an inference that
Dr. Knatt was being targeted for mistreatment and more intense scrutiny than
other doctors because of his race. Nurse Bucionne’s testimony went directly to
the defendants’ racial animus. She testified in her deposition that at least two
of the three doctors on the MEC, Dr. Rathbone and Dr. Medina, used racial
epithets in reference to Dr. Knatt at a meeting involving the investigation of Dr.
Knatt. She also testified that she heard the third member of the MEC, Dr.
Fonte, using racial epithets several times but did not provide the context for
those comments. These are the same doctors who ordered Dr. Knatt’s
suspension. Although her testimony is not entirely clear, the hospital CEO,
Jeanne Partin and other nurses on the operating staff were part of that meeting
and also used racial epithets in relation to Dr. Knatt. These are the same nurses
who brought the complaints that were used to support Dr. Knatt’s suspension.
This direct evidence raised an issue of fact that racial animus played a role
28
No. 07-31027
in the suspension of Dr. Knatt. The statements refer to race; they were made by
the members of the MEC who ordered Dr. Knatt’s suspension, i.e. the applicable
decision makers; and they were related to the decision process because they
occurred in a meeting at which the nurses were directed to gather evidence
which was used as a basis for the suspension. Patel v. Midland Mem. Hosp. &
Med. Ctr., 298 F.3d 333, 343-44 (5th Cir. 2002). The use of racial epithets by the
nursing staff who submitted the evidence on which the suspension was based is
also relevant.
Use of racial epithets in an employment context is direct evidence of
discrimination sufficient to defeat summary judgment. In Brown v. East Miss.
Elec. Power Ass’n, the plaintiff presented evidence that his supervisor used
racial epithets both generally and in reference to him. We said -
Unlike certain age-related comments which we have found too
vague to constitute evidence of discrimination, the term "nigger" is
a universally recognized opprobrium, stigmatizing African-
Americans because of their race.
Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. Miss.
1993)(footnote omitted). See also footnote 8 of that case, listing cases dealing
with use of this racial epithet as direct evidence of discrimination.
See Kendall v. Block, supra (calling an employee "nigger" may be
direct evidence of discrimination); EEOC v. Alton Packaging Corp.,
901 F.2d 920 (11th Cir.1990) (general manager's statement that if
it were his company he would not hire blacks is direct evidence of
discriminatory animus in failing to promote the plaintiff); Brewer v.
Muscle Shoals Bd. of Educ., 790 F.2d 1515 (11th Cir.1986) (school
superintendent's comment that he did not want to appoint plaintiff
to an administrative position because he did not want to see the
school system "nigger-rigged" is direct evidence of discriminatory
animus, even though the comment was made with regard to an
incident occurring after the alleged violation); Bibbs v. Block, 778
F.2d 1318 (8th Cir.1985) (en banc ) (selection committee member's
characterization of plaintiff as a "black militant" and reference to
another black employee as "nigger" was direct evidence of
29
No. 07-31027
discrimination in failure to promote), overruled on other grounds by
Price Waterhouse, supra.
Id. at 862.
The most obvious way of showing an unlawful employment practice
is to offer “evidence that can be interpreted as an acknowledgment
of discriminatory intent by the defendant or its agents . . .” [citing
Troupe v. May Department Stores Company, 20 F.3d 734 (7 th Cir.
1994)] Examples include epithets or slurs uttered by an authorized
agent of the employer . . . . When produced, such “direct” evidence
will without more ordinarily suffice to show that an adverse
employment condition, or limitation on an employment opportunity,
was imposed “because of” the plaintiff’s protected group
characteristic.
Civil Rights and Employment Discrimination Law, Harold S. Lewis, Jr. (West
1997), § 4.2.
The direct and circumstantial evidence of discrimination set forth above
creates a genuine issue of fact on the question whether the defendants conspired
to find a reason–pretextual or otherwise--to get rid of Dr. Knatt and that racial
animus played a role in Dr. Knatt’s suspension. For this reason I would vacate
the dismissal of Dr. Knatt’s § 1983 and § 1985 claims and remand this case to
the district court for trial.
30