Jan Johnson v. Baptist Medical , 97 F.3d 1070 ( 1996 )

___________
No. 95-3827
___________
Jan Johnson, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Baptist Medical Center, * District of Missouri.
also known as Health Midwest; *
Goppert Family Care Center; *
and Dr. Lawrence Rues, *
*
Appellees. *
___________
Submitted: May 17, 1996
Filed: October 7, 1996
___________
Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Dr. Jan Johnson was a member of the residency program at the Goppert
Family Care Center of Baptist Medical Center (collectively "BMC"), in
Kansas City, Missouri. Her attending physician was Dr. Lawrence Rues, at
that time the associate director of the family care center. After nearly
a year and a half in the program, the faculty of the residency program
informed her that she did not meet the minimum standards of acceptable
performance, and she was given the choice of resigning or being terminated.
She resigned, then sued BMC for gender discrimination under Title VII,
Title IX, and Missouri state law, and sued Dr. Rues for defamation. The
district court granted BMC's motion for summary judgment on the
discrimination claim, and granted defendants' motions to dismiss the
defamation claim for failure to state a claim upon which relief could be
granted. We affirm the judgment of the district court.1
I.
Title VII gender discrimination actions have well-established rules
for allocating the burdens of production and persuasion to the parties.
The plaintiff must first establish a prima facie case of gender
discrimination by adducing proof that the plaintiff (1) is a member of a
protected class, (2) was qualified for the job, (3) was discharged, and (4)
was replaced by a male (or the position remained open while BMC sought a
replacement, or the circumstances surrounding the discharge otherwise
created an inference of unlawful discrimination). See St. Mary's Honor
Ctr. v. Hicks, 113 S. Ct. 2742, 2747 (1993); McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Davenport v. Riverview Gardens School
Dist., 30 F.3d 940, 945 (8th Cir. 1994); Walker v. St. Anthony's Medical
Ctr., 881 F.2d 554, 558 (8th Cir. 1989). If the plaintiff succeeds in
establishing a prima facie case, a rebuttable presumption is created; the
defendant must then advance a legitimate, nondiscriminatory reason for the
discharge. St. Mary's Honor Center, 113 S. Ct. at 2747. If the defendant
does so, then the plaintiff must demonstrate that the proffered reason was
not the true reason for the discharge. Id. "Plaintiff must ... establish
the existence of facts which if proven at trial would permit a jury to
conclude that the defendant's proffered reason is pretextual and that
intentional discrimination was the true reason for the defendant's
actions." Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995)
(citing St. Mary's Honor Center, 113 S. Ct. at 2747).
1
The Honorable Fernando J. Gaitan, Jr., United States District
Judge for the Western District of Missouri.
-2-
We note that when a plaintiff complains of discrimination with regard
to conditions of employment in an institution of higher learning, the
method of evaluating Title IX gender discrimination claims is the same as
those in a Title VII case. O'Conner v. Peru State College, 781 F.2d 632,
642 n. 8 (8th Cir. 1986); see Preston v. Commonwealth of Va. ex rel. New
River Community College, 31 F.3d 203, 206-07 (4th Cir. 1994). Although the
residency program combines features of both employment and academic study,
it appears to be primarily an employment setting not unlike apprenticeship.
Dr. Johnson, more importantly, makes no separate Title IX argument on
appeal. In addition, we note that Missouri courts analyzing gender
discrimination under state law follow the framework of McDonnell Douglas
v. Green, supra. See Midstate Oil Co. v. Missouri Comm'n on Human Rights,
679 S.W.2d 842, 845-46 (Mo. 1984) (en banc).
We review the district court's summary judgment dismissal de novo.
Once the plaintiff makes her prima facie case and the defendant produces
evidence of a legitimate reason for termination, the plaintiff faces
dismissal of her claim if she fails to make a submissible case on the
question of whether the defendant's reason for terminating her was merely
a pretext for discrimination. See Ledge-Myrtil v. Deere & Co., 49 F.3d
1308, 1311 (8th Cir. 1995). "To survive summary judgment at the third
stage of the McDonnell Douglas analysis, a plaintiff must demonstrate the
existence of evidence of some additional facts that would allow a jury to
find that the defendant's proffered reason is pretext and that the real
reason for its action was intentional discrimination." Krenik, 47 F.3d at
958 (citing St. Mary's Honor Center, 113 S. Ct. at 2747).
We will assume, for purposes of analysis, that Dr. Johnson has made
out a prima facie case, although the matter is hardly free from doubt. BMC
produced evidence that a legitimate, nondiscriminatory motive lay behind
Dr. Johnson's termination, namely, that she did not perform according to
the reasonable
-3-
expectations of the faculty of the program. BMC met its burden of
production because it proffered substantial evidence of the faculty's
displeasure with her performance in the residency program. The evaluation
forms provide for categories of "Excellent," "Adequate," and "Needs much
improvement." Dr. Johnson received mostly "Needs much improvement" marks
in her emergency, pulmonary, obstetrics, and neonatology rotations, and
many such marks in her general medicine, family practice, and cardiology
rotations. The faculty comments often touched on Dr. Johnson's weak
knowledge base and inability to diagnose and manage patients. Other
residents, both male and female, did not have such a high number of
disappointing evaluations. According to BMC, her low level of performance
led the BMC faculty to conclude that she was not fulfilling the minimum
requirements of the residency program.
Because BMC has advanced a legitimate nondiscriminatory reason for
its adverse employment actions, Dr. Johnson must produce some evidence
creating a genuine issue of fact as to whether BMC's explanation is
pretextual and whether BMC harbored a discriminatory intent. See Ledge-
Myrtil, 49 F.3d at 1311; Davenport, 30 F.3d at 945 & n.8. Dr. Johnson,
however, has not done so. Her proffered evidence seems to be twofold.
First, she maintains that Dr. Rues and other faculty harbored a
discriminatory animus toward women. While she worked in rotations in
various practice areas under a number of different physicians, Dr. Rues was
her attending physician (in other words, her supervisor). Plaintiff
portrays Dr. Rues as the prime mover in undermining her career at BMC. Dr.
Johnson characterizes Dr. Rues as "intimidating, abusive, and judgmental"
toward her and other female residents, but patient and understanding with
male residents. She also avers that another female resident requested an
attending physician other than Dr. Rues because she felt "put down" by him.
Dr. Johnson's anecdotal "proof" of such disparate treatment, however,
appears to consist entirely of hearsay, which cannot defeat a motion for
summary judgment. See Davidson & Schaaf, Inc. v. Liberty Nat'l Fire Ins.
-4-
Co., 69 F.3d 868, 871 (8th Cir. 1995). She also claims that Dr. Rues
criticized a female resident's procedures in delivering a baby. But this
episode cannot support a finding of a discriminatory mindset, else every
criticism of a woman would carry a presumption of unlawful animus. In
addition, she points to the fact that another male doctor once
inappropriately sprayed a female resident with sterile saline solution as
a joke and on another occasion made apparently disparaging comments about
that resident. We believe that these incidents are insufficiently serious
to raise an inference of animus on the part of BMC generally.
Second, Dr. Johnson identifies various male residents who she asserts
were similarly situated with respect to her in terms of performance, but
who were not asked to leave the program. These male residents, however,
had fewer unfavorable evaluations than Dr. Johnson, and hence they cannot
be considered similarly situated. We find that the proof of discriminatory
intent is insufficient to support a jury verdict in Dr. Johnson's favor,
and we therefore find that the district court's grant of summary judgment
for BMC was appropriate.
II.
We now turn to Dr Johnson's defamation claim. Dr. Johnson alleged
that Dr. Rues told employees of BMC (1) that she had done poorly in
cardiology, (2) that she had had problems in various areas of the residency
program, and (3) that she had voluntarily resigned her position. The
district court dismissed for failure to state a claim, Fed. R. Civ. P.
12(b)(6), finding that Dr. Rues's remarks were merely opinion, were
privileged by Dr. Johnson's implicit consent, and were not "published"
under the intra-corporate immunity doctrine. We review the district
court's determinations of state law de novo, giving its decision no
deference. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).
-5-
The district court did not err in concluding that Dr. Johnson
consented to critical evaluation by the faculty of the residency program.
Missouri follows the Restatement of Torts and its position that consent can
make privileged otherwise potentially defamatory statements. See
Restatement of Torts Second § 583; Johnson v. City of Buckner, 610 S.W.2d
406, 411-12 (Mo. App. 1980).
Dr. Johnson appears to concede that the first two of Dr. Rues's
statements alleged above were made to other faculty in the residency
program. Because Dr. Johnson was a resident seeking Board Certification
in Family Practice, it was necessary that the faculty supervise and
evaluate her work. Dr. Johnson received from BMC a booklet entitled
"Special Requirements for Residency Training in Family Practice," which
stated: "There must be adequate, on-going evaluation of the knowledge,
competency, and performance of the residents. Entry evaluation assessment,
interim testing and periodic reassessment, as well as other modalities for
evaluation, should be utilized." Under these circumstances, it is not
error to find that Dr. Johnson consented to the allegedly defamatory
remarks, because consent to evaluation reasonably implies a consent to
intra-faculty discussion of an employee's progress. The district court
therefore correctly concluded that Dr. Rues's alleged remarks were
privileged.
As to the third statement, a statement apparently made to residents
as well as faculty, that Dr. Johnson had voluntarily resigned, the district
court concluded that the statement was not defamatory. Dr. Johnson made
no argument in her briefs with respect to this question, and we therefore
decline to address it.
III.
For the foregoing reasons, the judgment of the district court is
affirmed. Dr. Johnson's motion to supplement the record on appeal is
granted, and BMC's motion to strike portions of the appellant's appendix
and supplemental appendix on appeal is denied.
-6-
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-7-