Saketkoo v. Admin Tulane Educ ( 2022 )

Case: 21-30055 Document: 00516289795 Page: 1 Date Filed: 04/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2022
No. 21-30055 Lyle W. Cayce
Clerk
Lesley Ann Saketkoo, Medical Doctor, Master of
Public Health,
Plaintiff—Appellant,
versus
Administrators of the Tulane Educational Fund,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-12578
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Carl E. Stewart, Circuit Judge:
In this employment discrimination suit, Dr. Lesley Ann Saketkoo
challenges the district court’s summary judgment in favor of the
Administrators of the Tulane Educational Fund (“the Administrators”).
According to Dr. Saketkoo, the district court erred in dismissing her claims
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for gender discrimination, 1 retaliation, and hostile work environment under
Title VII of the Civil Rights Act of 1964 (“Title VII”). Because we identify
no genuine material factual dispute as to her claims, we affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2014, Dr. Saketkoo accepted a clinical appointment as an associate
professor at Tulane’s School of Medicine (“the School”). Her one-year
contract was continually renewed until 2019. She was initially hired into the
School’s Allergy and Immunology Section and transferred to the Pulmonary
Section in 2017. Prior to her transfer, Dr. Saketkoo’s supervisor was Dr.
Laurianne Wild, Chief of the Allergy and Immunology Section. After her
transfer, her supervisor was Dr. Joseph Lasky, Chief of the Pulmonary
Section and a doctor with whom she had previously worked. According to
Dr. Saketkoo, Dr. Lasky mistreated her throughout her time at the School,
and the bulk of her claims arise from interactions with him.
First, Dr. Saketkoo accuses Dr. Lasky of discriminatory treatment by
failing to support her research as her supervisor. Specifically, she alleges that:
(1) he excluded her from a research opportunity that she brought to him, only
to assign a male physician to the principal investigator role; (2) he did not
allow her to move a study forward when he allowed a male physician to move
1
As the district court observed, “[b]oth parties refer to this claim as a claim of
‘[g]ender [d]iscrimination’ rather than disparate treatment,” though that is the form of
unlawful employment discrimination at issue. Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977) (“‘Disparate treatment’ . . . is the most easily understood
type of discrimination. The employer simply treats some people less favorably than others
because of their race, color, religion, sex, or national origin . . . Claims of disparate
treatment may be distinguished from claims that stress ‘disparate impact.’ The latter
involve employment practices that are facially neutral in their treatment of different groups
but that in fact fall more harshly on one group than another and cannot be justified by
business necessity.”).
2
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a study forward; and (3) he used funding from one of her research grants to
support other personnel.
Next, Dr. Saketkoo recounts several instances in which Dr. Lasky
ridiculed her, such as when she suggested clinic changes, asked about
compensation, and explained new research topics. She notes that Dr. Lasky
called other women “very difficult to work with” and the “enemy.” She also
claims that a female physician who she found crying after an interaction with
Dr. Lasky confided in her that he “does this to strong women.”
Finally, Dr. Saketkoo describes an incident in September 2018 where
Dr. Lasky berated her for failing to disclose that she was teaching an
undergraduate class. According to Dr. Saketkoo, she replied that she had
already told him about it, and Dr. Lasky proceeded to demand that they
discuss the matter further. She attests that she was so intimidated by his
conduct that she ended the conversation and walked away. Following this
incident, Dr. Saketkoo complained about Dr. Lasky and her toxic work
environment to other doctors in her section and Tulane’s Office of
Institutional Equity (“OIE”). She also complained to three superiors,
including Dr. Wild.
In February 2019, Dr. Saketkoo met with Dr. Lee Hamm, Dean of the
School, and learned that her employment contract would not be renewed.
Dean Hamm explained that the decision had been made because she was not
earning enough to pay her salary. In this meeting, Dr. Saketkoo expressly
raised concerns that Dr. Lasky had discriminated against her and other
women on the basis of gender. Dean Hamm told her that the behavior would
be investigated but this would not change the decision on her contract. The
OIE subsequently began an investigation, and Dr. Saketkoo ceased to be an
associate professor at the School that June.
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Meanwhile, Dr. Saketkoo alleges that sometime thereafter Dean
Hamm told Dr. Nirav Patel not to hire her at the University Medical Center
(“UMC”). In a September 2019 phone call that Dr. Saketkoo surreptitiously
recorded, Dr. Patel told her, “if Dean Hamm comes and says Patel don’t hire
this person, this person explicitly . . . by name . . . you know that’s a pretty
clear directive.” According to Dr. Patel’s affidavit, he “remember[s] a con-
versation with Dean Hamm in the summer of 2019” and “remember[s] . . .
[he] made statements that implied that Dean Hamm told [him] not to hire
Dr. Saketkoo.” However, “Dean Hamm did not at any time tell [him] not to
hire Dr. Saketkoo, nor did [Dean Hamm] ever request that [Dr. Patel] not
hire her.” Rather, “[Dr. Patel] made these statements because it would not
be appropriate, nor was it necessary, for UMC to act contrary to the decisions
of Tulane, one of [its] faculty practice partners.”
Shortly after this phone call, Dr. Saketkoo filed suit in federal district
court against the Administrators, the School, Dean Hamm, and Dr. Lasky,
asserting claims under Title VII, the Equal Pay Act, and corresponding state
law. She voluntarily dismissed her state law claims, and the School, Dean
Hamm, and Dr. Lasky were dismissed as defendants by stipulation. In
December 2020, the district court granted summary judgment in favor of the
Administrators, holding that Dr. Saketkoo did not make a successful prima
facie case of gender discrimination, retaliation, and hostile work
environment. She now appeals the judgment as to her Title VII claims. 2
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo.
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). “The
2
Dr. Saketkoo did not appeal the district court’s summary judgment in favor of the
Administrators on her Equal Pay Act claim.
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court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “A fact is ‘material’ if its
resolution in favor of one party might affect the outcome of the lawsuit under
governing law.” Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.
2000) (per curiam). “An issue is ‘genuine’ if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Id.III. DISCUSSION
Dr. Saketkoo argues that the district court erroneously entered
summary judgment in favor of the Administrators on her gender
discrimination, retaliation, and hostile work environment claims. We discuss
each in turn.
A. Gender Discrimination
Under Title VII, it is unlawful to discriminate against an employee on
the basis of sex. 42 U.S.C. § 2000e–2(a). In a disparate treatment case, an
employee must establish that her employer had a discriminatory intent or
motive for taking a job-related action. Ricci v. DeStefano, 557 U.S. 557, 577
(2009). As direct evidence of discriminatory intent is rare, an employee ordi-
narily proves her claim through circumstantial evidence. Scales v. Slater,
181 F.3d 703, 709 (5th Cir. 1999). When an employee offers circumstantial
evidence, we carry out the burden-shifting analysis introduced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which first requires the employee
to establish a prima facie case of discrimination. Wallace v. Methodist Hosp.
Sys., 271 F.3d 212, 219 (5th Cir. 2001).
In McDonnell Douglas, the Supreme Court set out “an appropriate
model for a prima facie case of racial discrimination.” Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 253 n.6 (1981). In doing so, it observed that
“the prima facie proof required from respondent is not necessarily applicable
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in every respect to differing factual situations.” McDonnell Douglas, 411 U.S.
at 802 n.13; see also Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 (5th Cir.
2012) (“The prima facie case is necessarily a flexible standard that must be
adapted to the factual circumstances of the case.”). Although the ultimate
question in every employment discrimination case involving a claim of dis-
parate treatment is whether the plaintiff was the victim of intentional dis-
crimination, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153
(2000), the precise formulation for making a prima facie case can vary by cir-
cuit and, more granularly, by protected class and adverse employment action.
To establish a prima facie case of sex discrimination based on dispar-
ate treatment in the Fifth Circuit, an employee generally must demonstrate
that “(1) she is a member of a protected class; (2) she was qualified for the
position she sought; (3) she suffered an adverse employment action; and
(4) others similarly situated but outside the protected class were treated more
favorably.” Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). To
satisfy the “similarly situated” prong, the employee carries out a comparator
analysis. See Lee v. Kan. City S. Ry. Co., 574 F.3d 253 (5th Cir. 2009). 3 Under
this analysis, the employee must establish that she was treated less favorably
than a similarly situated employee outside of her protected class in nearly
identical circumstances. See id. at 259–60 (citing McDonnell Douglas, 411 U.S.
at 802). The similarly situated employee is known as a comparator. “A vari-
ety of factors are considered when determining whether a comparator is
3
Lee sets out the requirements for conducting the comparator analysis. Although
it does not affirmatively state that such an analysis is required to satisfy the fourth prong
and make a prima facie case, our court has since interpreted Lee this way. See, e.g.,
Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (“The ‘similarly situated’
prong requires a Title VII claimant to identify at least one coworker outside of his protected
class who was treated more favorably ‘under nearly identical circumstances.’” (quoting
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009))).
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similarly situated, including job responsibility, experience, and qualifica-
tions.” Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th
Cir. 2018). Moreover, we require an employee to show that the comparator’s
conduct is “nearly identical,” not strictly identical. 4 Lee, 574 F.3d at 260
n.25.
On appeal, Dr. Saketkoo argues that the district court improperly re-
quired her to demonstrate that her proffered comparators were strictly iden-
tical. We disagree. The district court applied the correct standard, but Dr.
Saketkoo failed to present evidence that any male physicians shared her re-
search responsibilities, section assignments, historical performances, or
other attributes that would render them similarly situated.
At the School, each faculty member is required to earn her salary by
generating revenue at least equal to it, and whether she can generate such
revenue is an important factor in renewal decisions. Dr. Saketkoo emphasizes
that there were several male physicians supervised by Dr. Lasky who were
not earning enough to pay their salaries and that she was the only one whose
contract was not renewed for this reason. 5 However, as she acknowledges, it
4
Compare Lee, 574 F.3d at 260, with Coleman v. Donahoe, 667 F.3d 835, 846 (7th
Cir. 2012) (quoting Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2009) (“So
long as the distinctions between the plaintiff and the proposed comparators are not ‘so
significant that they render the comparison effectively useless,’ the similarly-situated
requirement is satisfied.”)), and Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir.
2019) (en banc) (rejecting the Seventh Circuit’s standard and holding that a plaintiff must
demonstrate that she and her proffered comparators were “similarly situated in all material
respects”).
5
She also argues that her “expected deficits” were less than those of male
physicians in the Pulmonary Section. For instance, according to Dr. Saketkoo, one male
physician had an expected deficit of $95,586 for 2017–18, whereas she had an expected
deficit of $71,897.
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is common for physicians in the Department of Medicine to run deficits.6
Moreover, many physicians run deficits in some years but not others,
whereas Dr. Saketkoo ran a deficit every year of her employment at the
School. The fact that male physicians under Dr. Lasky’s supervision were at
some point expected to run a deficit is not sufficient to render their experi-
ences nearly identical in the field of academic medicine—especially when, as
the district court determined, “[Dr.] Saketkoo has offered the [c]ourt no ex-
planation as to why these individuals, despite their disparate job titles and
presumably different responsibilities, are appropriate comparators.”
We therefore agree with the district court that the male physicians Dr.
Saketkoo presented were not valid comparators for establishing a prima facie
case, and she has not otherwise demonstrated that she was discriminated
against because of her sex. See Rutherford v. Harris Cnty., 197 F.3d 173, 179
(5th Cir. 1999); see also Dileo v. Ashcroft, 201 F. App’x 190, 191 (5th Cir. 2006)
(per curiam) (holding that comparator evidence was insufficient to establish
a prima facie case of sex discrimination and “[a]s [the plaintiff] did not pre-
sent any other evidence sufficient to raise a genuine issue of material fact,
summary judgment was proper”).
Even if Dr. Saketkoo had established a prima facie case of sex discrim-
ination, her claim would fail because she did not rebut the Administrators’
legitimate, non-discriminatory reasons for declining to renew her contract. It
is well-established that after an employee makes a prima facie case under the
McDonnell Douglas framework, the burden of production shifts to the em-
ployer to offer an alternative non-discriminatory explanation for the adverse
employment action, at which point the employee must show that this
6
In support of this proposition, she cites the testimony of Department of Medicine
Vice Chair, Dr. Vecihi Batuman.
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explanation is pretextual. See Lee, 574 F.3d at 259 (citing McDonnell Douglas,
411 U.S. at 802). Notably, the burden of proof remains with the employee
throughout. See id. at 259 n.13; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
518 (1993) (quoting Burdine, 450 U.S. at 253 (“The ultimate burden of per-
suading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.”)).
Here, Dr. Saketkoo failed to meet this burden. The Administrators
explained that they have a policy of retaining physicians operating at deficits
who are heavily involved in medical education and mission-critical practices,
including several male physicians she identified as comparators. Further,
they emphasized that “the sub-subspecialty of rheumatology that Dr.
Saketkoo prefers to practice is not mission[-]critical to Tulane Medical
School.” Although Dr. Saketkoo addressed the Administrators’ allegations
of performance issues, attaching several declarations to contradict the
suggestion that she was “disruptive,” she did not rebut the Administrators’
contention that other physicians operating at deficits added value in ways that
she did not. Thus, she did not demonstrate that the Administrators’ non-
discriminatory reasons were pretextual.
Accordingly, we affirm summary judgment in favor of the
Administrators on Dr. Saketkoo’s gender discrimination claim.
B. Retaliation
“Title VII’s antiretaliation provision forbids employer actions that
‘discriminate against’ an employee (or job applicant) because he has
‘opposed’ a practice that Title VII forbids or has ‘made a charge, testified,
assisted, or participated in’ a Title VII ‘investigation, proceeding, or
hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e–3(a)). “The allocation of the burden of proof in
Title VII retaliation cases depends on the nature of the plaintiff’s evidence
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supporting the causation element.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376, 385 (5th Cir. 2003) (quoting Fierros v. Tex. Dep’t of Health, 274 F.3d 187,
191 (5th Cir. 2001)). “Where, as here, the plaintiff[] seek[s] to prove
causation by circumstantial evidence, [she] carr[ies] the initial burden of
establishing a prima facie case of retaliation,” and the retaliation claim is
analyzed under a McDonnell Douglas burden-shifting framework. Id.; Wheat
v. Fla. Par. Juv. Just. Comm’n, 811 F.3d 702, 705 (5th Cir. 2016).
To establish a prima facie case of retaliation, an employee must show
“(1) she engaged in a protected activity; (2) ‘she suffered an adverse
employment action’; and (3) ‘a causal connection exists between the
protected activity and the adverse employment action.’” Brown v. Wal-Mart
Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020) (quoting Byers v. Dall.
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000)). “If the plaintiff
establishes a prima facie case, then the employer has the burden of
production to provide ‘a legitimate, non-discriminatory reason’ for the
adverse employment action.” Id. (quoting Patrick v. Ridge, 394 F.3d 311, 315
(5th Cir. 2004)). “If the employer meets this burden, then the plaintiff has
the burden to prove that the proffered reason is pretextual.” Id. Again, the
burden of persuasion remains with the employee throughout. See id.i. Contract Non-Renewal
On appeal, Dr. Saketkoo’s first allegation of retaliation relates to the
Administrators’ decision not to renew her contract. She argues that they
made this decision in retaliation for her complaining about Dr. Lasky’s dis-
criminatory behavior. Yet nothing in the record supports the claim that she
reported his behavior as discriminatory before the Administrators made the
decision not to renew her contract. “In a claim of protected opposition, an
employee must at least have referred to conduct that could plausibly be con-
sidered discriminatory in intent or effect, thereby alerting the employer of its
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discriminatory practices.” Allen v. Envirogreen Landscape Pros., Inc., 721 F.
App’x 322, 326 (5th Cir. 2017) (per curiam). A general allegation of hostility
is not enough. Id.Although Dr. Saketkoo contacted the OIE after Dr. Lasky’s alleged
outburst in September 2018, she did not file a report or otherwise communi-
cate that she was being discriminated against based on her gender. Similarly,
the record reflects that she described his behavior to her superiors as regret-
tably harsh, not as potentially discriminatory. In her declaration, Dr. Saket-
koo stated that she “reported [to Dr. Wild] what [Dr. Lasky] did and his con-
tinuing abusive treatment.” Meanwhile, she told others that he was “out of
control,” “not approachable,” and “untenable.” She did not, however, al-
lege that she complained about experiencing gender-based discrimination
sufficient to put the Administrators on notice. The first time Dr. Saketkoo
notified the Administrators of Dr. Lasky’s potential discrimination was dur-
ing her conversation with Dean Hamm in February 2019, after he had told
her that her contract would not be renewed. Because there is no evidence that
Dr. Saketkoo engaged in protected activity before this decision, she has failed
to make a prima facie case of retaliation with respect to her contract non-
renewal.
ii. Conversation Between Dean Hamm and Dr. Patel
Dr. Saketkoo’s second allegation of retaliation relates to the conversa-
tion in which Dean Hamm allegedly directed Dr. Patel not to hire her. She
argues that the Administrators retaliated against her by sabotaging her at-
tempt to secure employment at UMC. Both parties agree that Dr. Saketkoo’s
comments during the February 2019 meeting and the OIE investigation that
followed were protected activities. And reading the facts in the light most
favorable to Dr. Saketkoo, the conversation between Dean Hamm and Dr.
Patel was an adverse employment action. This leaves the question of whether
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there was a causal link between the two as required to make a prima facie case
of retaliation.
“At first glance, the ultimate issue in an unlawful retaliation case—
whether the defendant discriminated against the plaintiff because the plain-
tiff engaged in conduct protected by Title VII—seems identical to the third
element of the plaintiff’s prima facie case—whether a causal link exists be-
tween the adverse employment action and the protected activity.” Long v.
Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996) (emphases omitted).
“However, the standards of proof applicable to these questions differ signif-
icantly.” Id. “The ultimate determination in an unlawful retaliation case is
whether the conduct protected by Title VII was a ‘but for’ cause of the ad-
verse employment decision.” Id. “The standard for establishing the ‘causal
link’ element of the plaintiff’s prima facie case is much less stringent.” Id.To demonstrate that a causal link exists between the protected activity
and the adverse employment action at the prima facie stage, an employee can
show close enough timing between her protected activity and the adverse em-
ployment action. See Brown, 969 F.3d at 578. Alternatively, she can show
“cat’s paw causation” if a person who has retaliatory animus uses a decision-
maker to bring about an intended retaliatory action. See Gee v. Principi,
289 F.3d 342, 346 (5th Cir. 2002). However, here the conversation between
Dean Hamm and Dr. Patel was too far removed from the non-renewal
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meeting and the OIE investigation to establish a causal link through time
alone. 7 And similarly, there is no evidence in the record that Dr. Lasky
brought about the conversation between Dean Hamm and Dr. Patel as is nec-
essary for establishing cat’s paw causation.
But this court has also held that an employee can establish a causal link
at the prima facie stage when evidence demonstrates that the adverse action
was “based in part on knowledge of the employee’s protected activity.” Me-
dina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). In Medina, we
decided that an employee whose manager terminated him and had knowledge
about his protected activity met the causal link element of his prima facie case
at the summary judgment stage because the evidence demonstrated that the
manager’s knowledge was “not wholly unrelated to the termination.” Id.Here, as the district court acknowledged, Dean Hamm was aware of Dr.
Saketkoo’s protected activity when he made the decision to speak about her
to Dr. Patel. Construing the evidence in the light most favorable to Dr. Saket-
koo, such knowledge was “not wholly unrelated” to the alleged direction not
to hire her.
However, even so, it is clear that she has not created a triable issue of
fact as to “[t]he ultimate determination in an unlawful retaliation case,”
“whether the conduct protected by Title VII was a ‘but for’ cause of the ad-
verse employment decision.” Long, 88 F.3d at 305 n.4. Because the
7
As the district court explained, we have held that a two-and-a-half month gap is
sufficient to show causation, see Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir.
2019), and the Supreme Court has suggested that a three-month gap is insufficient. See
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (per curiam). Dr. Patel
suggests that he spoke with Dean Hamm at some point after June 2019, and even if the
conversation occurred on July 1, 2019, this is too far removed from the February 2019
meeting and the March 2019 instigation of the OIE complaint for temporal proximity to
establish a causal link.
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Administrators have carried their burden of production, 8 this court turns to
whether Dr. Saketkoo can prove her claim according to traditional principles
of “but for” causation and carry her burden of demonstrating that their prof-
fered non-discriminatory reason is pretextual. An employee can establish
pretext in the context of retaliation “by showing that a discriminatory motive
more likely motivated her employer’s decision.” Brown, 969 F.3d at 577
(quoting Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll.,
719 F.3d 356, 363 (5th Cir. 2013)). In order to survive a motion for summary
judgment, the plaintiff must show a “conflict in substantial evidence” on this
issue. Id. (quoting Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir.
2019)). At this juncture, we consider “numerous factors, including the
strength of the plaintiff’s prima facie case, the probative value of the proof
that the employer’s explanation is false, and any other evidence that supports
the employer’s case and that properly may be considered.” Id. (quoting Price
v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002)).
“[T]here will be cases where a plaintiff has [] established a prima fa-
cie case . . . yet no rational factfinder could conclude that the action was dis-
criminatory.” Id. Here, to survive a motion for summary judgment, Dr.
Saketkoo must show a conflict in substantial evidence as to whether Dean
Hamm would not have made retaliatory comments to Dr. Patel but for Dr.
Saketkoo’s reporting of potentially discriminatory behavior and involvement
in an OIE investigation. Yet Dr. Saketkoo only proffers the transcript of her
8
The Administrators disputed that the conversation between Dean Hamm and Dr.
Patel constituted an adverse employment action, so they did not discuss additional non-
discriminatory reasons in the context of this claim. However, the performance issues that
the Administrators emphasized in their discussion of non-discriminatory reasons for
gender discrimination evidently apply. “[E]ven an incorrect belief that an employee’s
performance is inadequate constitutes a legitimate, non-discriminatory reason.” Little v.
Republic Refin. Co., 924 F.2d 93, 97 (5th Cir. 1991).
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surreptitiously recorded telephone conversation with Dr. Patel. And this
transcript is itself insufficient to create a conflict in substantial evidence as to
whether “a discriminatory motive more likely motivated” Dean Hamm. Id.Dr. Saketkoo’s transcript tells us that Dr. Patel made statements im-
plying Dean Hamm told him not to hire Dr. Saketkoo. There is no question
that Dr. Patel made such statements. Indeed, in his affidavit, Dr. Patel ex-
pressly acknowledges that he made statements implying Dean Hamm told
him not to hire Dr. Saketkoo. But he also clarifies that “Dean Hamm did not
at any time tell [him] not to hire Dr. Saketkoo” and that he made the state-
ments of his own volition “because it would not be appropriate . . . for UMC
to act contrary to the decisions of Tulane, one of [its] faculty practice part-
ners[,]” by hiring a physician whose employment contract the School did not
renew.
Crucially, Dr. Saketkoo does not allege that Dr. Patel lied in his affi-
davit about what Dean Hamm told him in their summer 2019 conversation.
If she had made this allegation, reading the evidence in the light most favor-
able to Dr. Saketkoo, she would be correct that “[Dr.] Patel’s own words”
would “clearly raise a disputed issue of material fact” as to what was said and
whether a discriminatory motive more likely motivated Dean Hamm. How-
ever, Dr. Saketkoo instead alleges that the affidavit demonstrates “what [Dr.
Patel] told [her] on the September[] 2019 call was not true.” And this is nei-
ther disputed nor material. Dr. Patel acknowledges that he mischaracterized
his conversation with Dean Hamm on the phone with Dr. Saketkoo. That Dr.
Patel mischaracterized their conversation cannot confer a discriminatory mo-
tive on Dean Hamm, let alone support the proposition that Dean Hamm
would not have made retaliatory comments but for Dr. Saketkoo’s actions.
Although this court has previously held that a “combination of suspi-
cious timing with other significant evidence of pretext can be sufficient to
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survive summary judgment in a Title VII retaliation action,” Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999), Dr. Saketkoo has
failed to produce the significant evidence of pretext necessary for survival.
We conclude that a reasonable jury could not establish that her protected
conduct was the “but for” cause of the alleged adverse employment action
based on the record before us.
We therefore affirm summary judgment in favor of the Administrators
on Dr. Saketkoo’s retaliation claim.
C. Hostile Work Environment
“A claim of ‘hostile environment’ sex discrimination is actionable un-
der Title VII.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986). An
employee who brings a hostile work environment claim must show that
(1) she belongs to a protected class; (2) she was subjected to harassment;
(3) the harassment was based on sex; (4) the harassment affected a term, con-
dition, or privilege of employment; and (5) the employer knew or should have
known of the harassment and failed to take remedial action. Septimus v. Univ.
of Hous., 399 F.3d 601, 611 (5th Cir. 2005).
To affect a term, condition, or privilege of employment, the harass-
ment must be sufficiently severe or pervasive to alter the conditions of em-
ployment and create an abusive work environment. Aryain v. Wal-Mart Stores
Tex. LP, 534 F.3d 473, 479 (5th Cir. 2008). “Whether an environment is hos-
tile or abusive depends on a totality of circumstances, focusing on factors
such as the frequency of the conduct, the severity of the conduct, the degree
to which the conduct is physically threatening or humiliating, and the degree
to which the conduct unreasonably interferes with an employee’s work per-
formance.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.
1996). “[I]solated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Butler
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No. 21-30055
v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 n.3 (5th Cir. 1998) (quoting Fa-
ragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
On appeal, Dr. Saketkoo argues that Dr. Lasky’s history of demeaning
conduct at the School evidences a hostile work environment and that genuine
material facts remain in dispute. We disagree. Although she presented evi-
dence that Dr. Lasky demeaned her, the district court correctly noted that
the incidents described were insufficiently severe or pervasive to sustain her
hostile work environment claim.
Dr. Saketkoo points our attention to sporadic and abrasive conduct
over the course of four years. This includes when Dr. Lasky (1) cut her off
and told her it was “not her place” to discuss the needs of the clinic;
(2) flailed his arms and yelled “I’m sick of this!” when she inquired about
the use of funds; (3) hovered over her and shouted “I already told you what
it was!” while documenting heart catheterization results; (4) mockingly
asked her if she had “danced away scleroderma,” upon which he interrupted,
“We don’t need you thinking! We need you working.”; and (5) chastised her
for teaching an undergraduate class, telling her to “[s]top it now!” However,
we have routinely held that similarly sporadic and abrasive conduct is neither
severe nor pervasive. 9 And the fact that other women at the School may have
experienced severe or pervasive treatment does not save Dr. Saketkoo’s
9
See Kumar v. Shinseki, 495 F. App’x 541, 543 (5th Cir. 2012) (per curiam)
(affirming summary judgment rejecting a hostile work environment claim when “alleged
hostility occurred sporadically over a 27-month period”); Williams v. U.S. Dep’t of Navy,
149 F. App’x 264, 268 (5th Cir. 2005) (per curiam) (affirming summary judgment rejecting
a hostile work environment claim involving an alleged harasser “yelling and displaying
anger toward [plaintiff] over fax machine toner”); see also Pennington v. Tex. Dep’t of Fam.
& Protective Servs., No. A-09-CA-287-SS, 2010 WL 11519268, at *10 (W.D. Tex. Nov. 23,
2010), aff’d, 469 F. App’x 332 (5th Cir. 2012) (holding plaintiff failed to establish a hostile
work environment where the employer was “always hostile [and] threatening,” screamed
at plaintiff, and violated plaintiff’s space by slamming files and doors).
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No. 21-30055
claim. See Septimus, 399 F.3d at 612 (observing that alleged harassment a
plaintiff did not personally experience was inadequate to render her alleged
harassment severe or pervasive).
Finally, even if we assume that Dr. Lasky’s treatment of Dr. Saketkoo
was severe enough to constitute harassment, her claim still fails. Although
she presented evidence of his tendency to degrade her, Dr. Saketkoo did not
demonstrate that his actions were based on her gender. The record shows
that Dr. Lasky treated male physicians in a similarly abrasive manner and that
they also complained about his behavior. The consistency of Dr. Lasky’s
workplace demeanor is lamentable, but that circumstance does not supplant
a plaintiff’s burden to satisfy each element of a Title VII cause of action.
Accordingly, we affirm summary judgment in favor of the Adminis-
trators on Dr. Saketkoo’s hostile work environment claim.
IV. CONCLUSION
For the aforementioned reasons, the judgment of the district court is
AFFIRMED.
18