Khandakar Ahad v. Robert Wilkie ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0488n.06
Case No. 18-6079
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 19, 2019
KHANDAKAR AHAD, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
ROBERT WILKIE, Secretary, Department of ) TENNESSEE
Veterans Affairs, and DEPARTMENT OF )
VETERANS AFFAIRS, )
)
Defendants-Appellees. )
)
BEFORE: SUTTON, COOK, and THAPAR, Circuit Judges.
SUTTON, Circuit Judge. Dr. Khandakar Ahad began working as an ophthalmologist at a
Veterans Affairs hospital in 1992. Since then, he has performed wrong-site eye surgeries—
operating on the healthy eye—several times. Three days after his last misstep, the hospital
launched an investigation, after which it revoked Ahad’s surgery privileges. The revocation of
privileges limited him to non-surgical patient treatment, but it did not reduce his pay or change his
formal position. After unsuccessfully challenging this decision internally and after filing a
complaint with the Equal Employment Opportunity Commission, he filed this lawsuit, claiming
the revocation amounted to (1) retaliation under Title VII for a lawsuit he filed three years earlier
against the hospital and (2) a due process violation. The district court rejected the claims as a
matter of law. We affirm.
Case No. 18-6079, Ahad v. Wilkie
Ahad has been an ophthalmologist at the Alvin C. York Campus of the Veterans Affairs
Hospital in Murfreesboro, Tennessee since 1992. In 2001, he operated on a patient’s left eye when
he was supposed to operate on the patient’s right eye, and without obtaining the patient’s written
consent for surgery on either eye. The hospital investigated the incident and ultimately decided
he had not violated its policies.
In June 2005, Ahad, a Muslim, complained to the Equal Employment Opportunity
Commission that the hospital had refused to provide him with a reasonable religious
accommodation—attending a mid-day worship service on Fridays—and penalized him for his
religion by giving him a poor performance review. He also attributed this alleged discrimination
to his age, race, and sex.
Later that year, in September 2005, Ahad began operating on a patient’s healthy right eye
instead of his afflicted left eye. Ahad discovered the error during the procedure when he consulted
his supervisor about an unrelated equipment problem. The hospital declined to discipline Ahad,
giving him another chance.
But the same problem happened again. On March 4, 2008, Ahad began operating on a
patient’s healthy left eye instead of his damaged right eye. After discovering his mistake, he
switched course and completed the operation on the correct eye, leaving the patient temporarily
blind in both eyes.
The hospital began an investigation on March 7. By late April, the hospital’s internal
investigative body concluded that Ahad had operated on the wrong eye for a third time. It
recommended permanently removing him from surgery duty and closely supervising his patient
treatment. The hospital officially implemented both recommendations on July 30, 2008.
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Ahad challenged this decision internally, all to no avail. He then filed a complaint with the
Equal Employment Opportunity Commission, also to no avail. At that point, he filed this lawsuit
against the Secretary of the Department of Veterans Affairs and the agency itself, claiming the
agency’s revocation of his privileges amounted to (1) retaliation under Title VII for a lawsuit he
filed three years earlier against the hospital and (2) a due process violation. The district court
rejected each claim as a matter of law.
Title VII. Case law tells us to consider Title VII retaliation claims like this one in three
steps. We start by asking whether Ahad has established a prima facie case of retaliation. That
means he needs to show that (1) he engaged in a protected activity, (2) the hospital knew about the
protected activity, (3) the hospital took a materially adverse action against him, and (4) the
protected activity caused the adverse action. Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775
(6th Cir. 2018).
If Ahad makes this prima facie showing, step two requires the hospital to produce a
legitimate, nondiscriminatory reason for its action. Id. at 777.
If the hospital offers that explanation, step three requires Ahad to show the hospital’s
reason is “a pretext to hide unlawful retaliation.” Id. (quotation omitted). Ahad may show pretext
by showing that the hospital’s reason (1) has no basis in fact, (2) did not actually motivate the
hospital, or (3) was insufficient to warrant the adverse employment action. Michael v. Caterpillar
Fin. Servs. Corp., 496 F.3d 584, 597 (6th Cir. 2007).
It’s doubtful that Ahad has made a prima facie showing, especially when it comes to
causation. Lacking any evidence that the hospital revoked his surgical privileges because of his
prior lawsuit, he leans entirely on the alleged temporal proximity between the filing of his 2005
EEOC complaint and the removal of his surgery privileges. Our cases do not speak with one voice
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about whether a claimant can move beyond summary judgment based only on evidence of
causation that turns on timing. Compare Taylor v. Geithner, 703 F.3d 328, 339 (6th Cir. 2013),
with Kuhn v. Washtenaw County, 709 F.3d 612, 628 (6th Cir. 2013). But even the best cases for
Ahad rely on temporal proximity of no more than four months or so between the protected activity
and the alleged retaliatory act. In this instance, the only cognizable protected activity is the
religious discrimination complaint he filed with the EEOC on June 21, 2005, claiming that the
hospital discriminated against him based on his religion by keeping him from attending religious
services on Fridays and giving him a poor performance review. Yet the earliest alleged retaliatory
act is the investigation of his last wrong-eye surgery on March 7, 2008. That’s much too long—
under any of our cases—to justify an inference of causation that by itself could overcome a
summary judgment motion.
But we need not rely on that ground alone to resolve the case. As it turns out, there is an
even more straightforward ground. The hospital has put forward a legitimate, nondiscriminatory
reason for reducing his surgical privileges: the unchallenged reality of serial wrong-site eye
surgeries. Ahad, by the way, disputes whether the 2001 incident counts as a wrong-site surgery.
Even so, he admits that he operated on the wrong eyes in 2005 and 2008. Those two mishaps by
themselves suffice to resolve the case. Ahad has not produced any evidence that the hospital’s
suspension was not motivated by serial wrong-eye operations. Lacking a genuine issue of material
fact on this point, the district court correctly granted the hospital’s motion for summary judgment
on Ahad’s Title VII claim. Rogers, 897 F.3d at 771.
Ahad’s only response to this conclusion—that two other doctors retained their surgical
privileges after performing a wrong-site surgery—does not take him far. It’s true that, when an
employer overlooks a similar mistake by a similarly situated employee, that suggests that the error
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by the claimant was not the true reason for the disciplinary action. Ladd v. Grand Trunk W. R.R.,
552 F.3d 495, 503 (6th Cir. 2009). But the comparison must be precise. “[T]he individuals with
whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor,
have been subject to the same standards and have engaged in the same conduct.” Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quotation omitted); see also
Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (applying Ercegovich to Title
VII claims).
The trouble with Ahad’s argument is that the other doctors did not stand in his shoes. Each
of the other doctors performed just one wrong-site surgery, while Ahad admittedly performed at
least two. He has not identified any other doctors who performed serial wrong-site surgeries like
he did and nonetheless retained their surgical privileges. In truth, his comparator evidence
confirms that no retaliation was afoot. Had the employer been in a retaliatory mood, it would have
removed Ahad’s surgical privileges after the first wrong-eye surgery. But instead it treated him
like everyone else by giving him another chance. It was only after failing that second chance that
the employer removed his surgery privileges. The district court correctly rejected Ahad’s Title
VII claim as a matter of law.
Due Process. Ahad claims that the Veterans Affairs hospital revoked his privileges without
following its internal procedures and, for that reason, violated his rights under the Fifth
Amendment’s Due Process Clause. At the district court, the parties debated whether Ahad had
raised a freestanding due process claim—with the government arguing that Ahad never separately
pled it in the complaint and Ahad responding that he mentioned due process in support of his Title
VII claim. On its own initiative, the district court cut the Gordian knot. It held that, even if Ahad
had raised such a claim, it was plainly time barred by the one-year statute of limitations.
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Ahad challenges that ruling on the ground that the district court did not give him notice of
the argument and a chance to respond to it. That is a fair point. Generally speaking, district courts
should give parties an opportunity to respond to a timeliness issue. See Truitt v. County of Wayne,
148 F.3d 644, 646–47 (6th Cir. 1998). But that truth runs into another truth. We usually do not
make district courts redo a proceeding unless the plaintiff shows prejudice from the mistake. The
key problem is that Ahad has not shown any error in the statute of limitations conclusion.
In the district court’s view, federal civil rights actions, like Ahad’s due process claim, are
governed by the forum State’s statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007).
That means Tennessee’s one-year limit applies. Montgomery v. Carter County, 226 F.3d 758, 772
(6th Cir. 2000); Tenn. Code Ann. § 28-3-104(a). When does that one-year clock start running?
For procedural due process claims, it starts when process is denied. Am. Premier Underwriters,
Inc. v. Nat’l R.R. Passenger Corp., 839 F.3d 458, 461 (6th Cir. 2016). The hospital terminated
Ahad’s surgical privileges after an allegedly defective process on July 30, 2008. But he did not
sue the hospital until almost six years later—on May 6, 2014.
Ahad, notably, does not identify a single misstep in this conclusion. At no point does he
explain how his claim was timely.
The most he can argue in response is that the hospital allegedly forfeited the argument by
not raising a statute of limitations defense in its answer to the complaint. But that was a problem
of Ahad’s own making. He did not identify a separate constitutional tort claim under the Due
Process Clause, which explains why the hospital did not raise timeliness as a defense at the outset.
No prejudice thus arose from the district court’s statute of limitations ruling.
We affirm.
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