Sameh Said v. Mayo Clinic ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3881
___________________________
Sameh Mahmoud Mohamed Said, MD
Plaintiff - Appellant
v.
Mayo Clinic; Joseph Albert Dearani, MD
Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: June 16, 2022
Filed: August 17, 2022
____________
Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
Sameh Mahmoud Mohamed Said, MD, resigned from his employment as a
surgeon with Mayo Clinic (“Mayo”) after an internal committee recommended his
termination following an investigation into allegations of his misconduct. Said sued
Mayo and his supervisor, Joseph Albert Dearani, MD, alleging discrimination and
reprisal. The district court 1 granted summary judgment in favor of Mayo and
Dearani. We affirm.
I. Background
Said is an African-American, Egyptian national, and practicing Muslim. In
2015, Mayo hired Said as a senior associate consultant in Mayo’s cardiovascular
surgery department (“the Department”). Said claims Dearani objected to his hiring,
allegedly saying Said was “not Mayo material.” Mayo, however, asserts it was
ultimately Dearani’s decision as the Department chair to hire Said. The senior
associate consultant position was viewed in the Department as a temporary position,
and Said was scheduled to be considered for promotion to a permanent consultant
role after three years.2
In December 2016, Mayo conducted a 360-degree review of Said, meaning
he was evaluated by multiple coworkers at different levels—subordinates, peers, and
supervisors. Said received positive evaluations for his technical performance but
received multiple “red flags” for his treatment of Mayo staff, his professionalism,
and his communication skills. Said claims he did not receive written feedback about
his 360-degree review until fifteen months after the review was conducted. Said
asserts he did not receive another 360-degree review at Mayo, which Said alleges
violated Mayo’s review policies.
In October 2017, two female anesthesiologists at Mayo, “Dr. A” and “Dr. F,”
complained that Said made unwelcomed advances. Dr. A reported that Said
persistently pursued a romantic relationship with her even though he knew she was
1
The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.
2
Said argues he was eligible for promotion consideration after two years. But
record evidence, including his own testimony, indisputably demonstrates his first
promotion consideration was scheduled three years after he was hired.
-2-
in a relationship. Dr. F reported several lunch and dinner invitations she found
inappropriate. Both Dr. A and Dr. F raised fears of retaliation. Mayo’s Human
Resources (“HR”) representative Steffany Guidinger met with Said to discuss the
allegations. Said admitted his advances were mistakes, and Guidinger informed Said
he needed to stop pursuing these women. Said claims Guidinger and Mayo’s then
Administrative Manager, Renee Jones, assured him the matter was “closed.” Based
on Dr. A’s and Dr. F’s complaints and the red flags from Said’s 360-degree review,
Mayo postponed Said’s promotion consideration for six months to December 2018.3
In the spring and summer of 2018, the Department conducted a “Cultural
Assessment” of its employees. During the review, the Department received
complaints about multiple surgeons, including Said. The assessment revealed
complaints accusing Said of yelling and cursing on the job, openly complaining
about anesthesia staff, and scheduling too many elective surgeries during off-hours,
and also that Said’s continued pursuit of unwelcome romantic relationships with
colleagues had a negative impact on the Department’s culture. As a result of the
assessment, Said’s promotion consideration was again postponed by six months to
June 2019.
In October 2018, physician assistant “R.R.” reported that Said had persistently
pursued an unwelcomed romantic relationship with her. Mayo opened an
investigation into R.R.’s complaint and placed Said on administrative leave. The
investigation revealed evidence of Said’s inappropriate advances. R.R. produced
text messages Said sent her complimenting her appearance, making a comment
about her going to a swimming pool that she understood as a sexual allusion, and
expressing his love and desire for a romantic relationship with her despite knowing
she was in a relationship. Said bought R.R. gifts, including perfume, a keychain
with an engraved picture of her dog, and a ruby ring. R.R. also reported that Said
kept a notebook in his office and showed her a page declaring his feelings for her.
3
Said testified Dearani originally told him his promotion consideration would
be postponed only three months.
-3-
The notebook was later discovered by Dearani, who confirmed the notebook’s
contents were as R.R. described.
Said claims his feelings were initially reciprocated and that he stopped
pursuing R.R. after she said she was not interested. But R.R. reported that Said sent
her inappropriate communications after she indicated she was not interested in the
relationship. R.R. stated that after she had told Said they could only be friends, he
asked her to meet in R.R.’s office where he closed the door and again expressed his
romantic feelings for her. R.R. claimed Said sat with his legs open toward R.R.
during the conversation and demonstrated inappropriate signs of arousal. Later, R.R.
returned from an out-of-town trip when Said, upon seeing her, told her he missed
her very much. R.R. stated she was angry at the comment and returned all of the
gifts Said had given her, saying she was not interested in his advances and that she
would leave her job if they continued.
R.R. reported she continued to feel emotionally manipulated by Said. R.R.
disclosed a video Said had sent her after he had asked her to attend a surgery in
which physician assistants were usually not included. The video was set to music
and showed Said and R.R.’s hands overlapping on a patient’s heart during surgery.
R.R. explained during the investigation that she was afraid of losing her job by
reporting Said because of the power differential. R.R. also mentioned she was
concerned about reporting Said because he had complained to R.R. that Dr. A
“stabbed him in the back” when she reported him.
The investigation also revealed other misconduct. This included evidence that
Said had downloaded sexually explicit material to a Mayo computer, sent
inappropriate emails to his medical secretary (including one where he was planning
to buy “Secret Santa” gifts from a lingerie store), attempted to destroy or alter
evidence from his notebook during the investigation, misused his Mayo travel card
for personal expenses, and expressed hatred toward Dearani with inappropriate
language in communications to colleagues.
-4-
During the investigation, Said sent a letter to Mayo through his counsel,
claiming he was being discriminated against because of his race and/or national
origin. Three days after Said’s counsel sent the letter, Mayo received an anonymous
internal complaint speculating Mayo’s treatment of Said was related to his race.
When Said was interviewed by HR for the investigation, he raised no concerns of
discrimination but stated that Dearani orchestrated the allegations because of
professional jealousy.
Mayo’s investigation resulted in a recommendation by Dearani, Dr. Charanjit
Rihal (Chair of the Personnel Committee), and Kevin Hennessey (Operations
Administrator for the Department) (collectively, the “Recommendation
Committee”) for Said’s termination. Said received a letter from the
Recommendation Committee notifying Said of the termination recommendation and
outlining his misconduct leading to the recommendation. In the list of Said’s
misconduct, along with many of the allegations against Said already discussed, the
Recommendation Committee accused Said of filing a discrimination complaint that
was “demonstrably false.” The letter also explained that the recommendation would
be sent to Mayo’s Termination Review Committee who would make a final
determination on Said’s employment.
Said resigned the day before the Termination Review Committee was
scheduled to convene to discuss Said’s employment. Mayo reported the
circumstances of Said’s resignation to the Minnesota Board of Medical Practice (the
“State Board”).4
Said filed a discrimination charge with the EEOC that was cross-filed with
the Minnesota Department of Human Rights. Said received a Notice of Right to Sue
from the EEOC. The Minnesota Department of Human Rights dismissed Said’s
4
In May 2020, the State Board reprimanded and fined Said after Said entered
a Stipulation and Order in which he agreed that he had resigned after the
Recommendation Committee recommended his termination in part for “sexually
harassing female staff and portraying unprofessional and disrespectful behaviors.”
-5-
state charge but clarified he could bring a private civil action against Mayo. Said
then sued Mayo and Dearani alleging, among other things, that Mayo discriminated
against Said based on his race, religion, and national origin under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e, and the Minnesota Human Rights Act (the
“MHRA”), Minn. Stat. § 363A.08, subd. 2. The complaint also alleged one count
of reprisal under the MHRA, Minn. Stat. § 363A.15, against Mayo.
Mayo and Dearani moved for summary judgment on all claims. The district
court granted the motion, holding Mayo and Dearani were entitled to judgment as a
matter of law. Said appeals.5
II. Analysis
We review the district court’s grant of summary judgment de novo, “viewing
the facts and inferences . . . in the light most favorable to the nonmoving party.”
Walsh v. Alpha & Omega USA, Inc., No. 21-2961, __ F.4th __, 2022 WL 2719984,
at *2 (8th Cir. July 14, 2022) (alteration in original) (quoting Vandewarker v. Cont’l
Res., Inc., 917 F.3d 626, 629 (8th Cir. 2019)). We will affirm summary judgment
only when the record shows “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). “Where
the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Green Plains Otter Tail, LLC
v. Pro-Env’t, Inc., 953 F.3d 541, 545 (8th Cir. 2020) (quoting Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)).
5
Said only appeals claims he raised against Mayo. Thus, we dismiss Dearani
from this appeal. See Potter v. Associated Elec. Co-op., Inc., 56 F.3d 961, 963 (8th
Cir. 1995).
-6-
A. Discrimination under Title VII and the MHRA
Said argues Mayo’s recommendation to terminate his employment was based
on his race, religion, and national origin. Because Said does not offer direct evidence
of discrimination, Said must “create[] a sufficient inference of discrimination under
the McDonnell Douglas framework” to survive summary judgment.6 Findlator v.
Allina Health Clinics, 960 F.3d 512, 514 (8th Cir. 2020) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04 (1973)). Under the McDonnell Douglas
framework, “a plaintiff must first state a prima facie case of discrimination, which
shifts the burden to the defendant to proffer a legitimate non-discriminatory reason
for the challenged action.” Id. at 515. “If the defendant presents a non-
discriminatory reason, the burden shifts back to the plaintiff to demonstrate that the
alleged reason was pretext for discrimination.” Id.
1. Prima Facie Case
Said attempts to establish his prima facie case using a disparate treatment
theory of discrimination. Under this theory, Said must offer “specific, tangible
evidence” of at least one other employee who was “similarly situated in all relevant
respects,” including committing offenses “of the same or comparable seriousness”
to Said’s, who received disparate treatment compared to Said. Rinchuso v.
Brookshire Grocery Co., 944 F.3d 725, 730 (8th Cir. 2019) (quoting Philip v. Ford
Motor Co., 413 F.3d 766, 768 (8th Cir. 2005); Fiero v. CSG Sys., Inc., 759 F.3d 874,
879 (8th Cir. 2014)).
6
Claims of discrimination under the MHRA are analyzed under the same
standard as Title VII discrimination, using the same federal case law. See Hansen
v. Robert Half Int’l, Inc., 813 N.W.2d 906, 918 (Minn. 2012) (applying McDonnell
Douglas burden-shifting framework to MHRA discrimination claim); Fletcher v. St.
Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (“In construing the MHRA,
we apply law developed in federal cases arising under Title VII of the 1964 Civil
Rights Act.”).
-7-
Said claims Dr. Simon Maltais is a similarly situated former employee of
Mayo who received preferential treatment. Maltais is white, Canadian, and an
atheist. Mayo received numerous complaints about Maltais during his time at Mayo.
These primarily consisted of complaints of Maltais’s disrespectful, unethical,
bullying, and inappropriate behavior toward his coworkers. Mayo received several
complaints of an incident where Maltais intentionally and angrily bumped into a
nurse practitioner. In another complaint, Dr. Lyle Joyce and his son, Dr. David
Joyce, both of whom were consultants for the Department, reported Maltais had an
“extremely serious conflict of interest” related to his relationship with a medical
device manufacturer, and the complaint implied that Maltais was violating Mayo
protocols due to this relationship. The Joyces’ complaint also accused Dearani of
showing favoritism toward Maltais and of forcing many physicians out of the
Department—many of whom Said claims are minorities.
Another complainant reported overhearing a nurse say she saw a pornographic
image on Maltais’s phone when she took a call for him while he was conducting a
surgery.7 Also, like Said, Maltais received poor marks during the Department-wide
“Cultural Assessment” for his communication style, insincerity, and damaging trust
within the Department. Maltais’s 360-degree review revealed concerns about his
“interpersonal” and “communication” skills, including that he could be “abrasive,”
“retaliatory,” “disrespectful,” and prone to “outbursts of anger.”
We agree with the district court that Maltais was not similarly situated to Said
“in all relevant respects.” Rinchuso, 944 F.3d at 730 (quoting Fiero, 759 F.3d at
879). Notably absent from the list of Maltais’s alleged misconduct are any
complaints of unwelcomed romantic advances or sexual harassment such as those
made against Said. While misconduct of comparators “need only be of ‘comparable
seriousness’ and not the ‘exact same offense,’” McKey v. U.S. Bank Nat’l Ass’n, 978
7
Dearani, Rihal, Guidinger, and the two Mayo employees who investigated
R.R.’s complaint against Said all testified to either being unaware of this complaint
or only aware through this lawsuit.
-8-
F.3d 594, 600 (8th Cir. 2020) (quoting Ridout v. JBS USA, LLC, 716 F.3d 1079,
1085 (8th Cir. 2013)), our ability to compare the seriousness of offenses does not
vest us with the “the authority to sit as [a] super-personnel department[] reviewing
the wisdom or fairness of the business judgments made by employers, except to the
extent that those judgments involve intentional discrimination.” Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995).
Here, Mayo determined Said sexually harassed his coworkers. And Said
himself stipulated with the State Board that the Recommendation Committee’s
termination recommendation was based, in part, on allegations that he was “sexually
harassing female staff[.]” On the other hand, Mayo did not consider the complaints
against Maltais to be complaints of sexual harassment. Mayo has judged sexual
harassment to be a unique8 and severe offense, 9 and it is not our place, nor a jury’s,
to review the fairness of this judgment because it does not involve intentional
discrimination. See id. And while Said argues Maltais created a hostile work
environment for women, which Said argues is a more intolerable version of sexual
harassment than his romantic advances, it is not for Said to define or grade types of
sexual harassment for Mayo. We conclude Mayo was justified in treating Said’s
unwelcomed romantic advances and sexual harassment as not of the same or
comparable seriousness to Maltais’s disrespectful and bullying misconduct. See
Rinchuso, 944 F.3d at 730.
8
Mayo’s harassment policy defines “harassment” and “sexual harassment”
differently.
9
Indeed, Mayo notes two other doctors at Mayo who received similar
complaints of sexual harassment and were similarly investigated. “Dr. G” sought
out romantic relationships with multiple junior female colleagues, was investigated,
and received a recommendation of immediate termination that was reported to the
State Board. “Dr. S” was accused of making a comment with sexual overtones. An
investigation was opened, and Dr. S was placed on administrative leave. Though he
retired before the investigation concluded, Mayo reported the circumstances of his
investigation and retirement to the State Board.
-9-
We also note that Mayo actually terminated Maltais’s employment,
diminishing his fitness as a comparator to support an inference of discrimination.
See McKey, 978 F.3d at 600 (rejecting a proposed comparator because, among other
reasons, the proposed comparator “was also fired”). Said argues Maltais received
preferable treatment because he was given a termination “runway” of six months
and because Mayo did not report Maltais’s termination to the State Board like it did
Said’s. Mayo’s treatment of Maltais, however, was arguably more severe. Mayo
gave Said two promotion deferrals before the Department ultimately recommended
his termination. Maltais, on the other hand, never received a promotion deferral and
was given his six-month notice of termination around the same time Said received
his first promotion deferral. In other words, Mayo twice gave Said an opportunity
to prove himself worthy of a permanent employment; it did not provide Maltais that
same opportunity. Further, while Mayo terminated Maltais’s employment, Said
resigned before Mayo could terminate his employment. Thus, it is misleading for
Said to complain that Mayo did not give him a termination runway when Mayo never
actually terminated his employment nor set a termination date.
Regarding Mayo’s reporting of Said’s resignation to the State Board, Mayo
believed Minnesota law required it to report Said’s resignation because it occurred
while his disciplinary case was still open. See Minn. Stat. § 147.111, subd. 2 (“Any
hospital . . . shall . . . report the resignation of any physicians prior to the conclusion
of any disciplinary proceeding[.]”). In contrast, Maltais’s investigation had closed
when his termination became effective. Thus, even if Said was similarly situated to
Maltais, we conclude Said does not present sufficient evidence for a reasonable jury
to conclude he received disparate treatment to Maltais. For all of these reasons, Said
fails to state a prima facie case of discrimination.
2. Pretext
Even if Said could establish a prima facie case, he would still have to prove
Mayo’s proffered nondiscriminatory reasons for terminating him were pretext for
discrimination. See Torgerson, 643 F.3d at 1047. An employer is justified in
-10-
terminating an employee for sexual harassment and inappropriate behavior. See
McCullough v. Univ. of Ark. for Med. Sci., 559 F.3d 855, 864–65 (8th Cir. 2009).
So, to survive summary judgment, Said must show Mayo’s nondiscriminatory
reasons were pretext either by showing they were “unworthy of credence . . . because
[they] ha[d] no basis in fact” or “by persuading the court that a [discriminatory]
reason more likely motivated [Mayo].” Torgerson, 643 F.3d at 1047 (quoting
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)).
As proof of pretext, Said points primarily to his technical work performance,
Dearani’s alleged statement that Said was “not Mayo material,” Mayo’s alleged
failure to provide timely evaluations, and Said’s belief that his feelings for his
coworkers were reciprocated. We are not persuaded. First, an employee’s technical
competency does not shield him from discipline for misconduct. See Strate v.
Midwest Bankcentre, Inc., 398 F.3d 1011, 1020 (8th Cir. 2005) (“[E]vidence of a
strong employment history will not alone create a genuine issue of fact regarding
pretext and discrimination.”).
Second, Said offers nothing but speculation that his termination
recommendation was more likely motivated by his race, religion, or national original
than by his misconduct. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 934 (8th
Cir. 2006) (noting that while we review summary judgment “mak[ing] all reasonable
inferences in favor of the nonmoving party,” we must do so “without resort to
speculation”). Said argues Dearani’s alleged statement that Said was “not Mayo
material” is an allusion to Said’s protected statuses, but this statement was allegedly
made before Said was hired and is too speculative and remote to create a genuine
issue of material fact in the face of the strong evidence showing Mayo’s termination
recommendation was based upon Said’s unwanted romantic advances and other
misconduct.
Third, Mayo’s alleged failure to periodically evaluate Said fails to show
pretext. For one, while Said only received one 360-degree evaluation, he received
other evaluations during his time. Said was hired in July 2015 and resigned in
-11-
December 2018. The record established that during that time, he received a review
in February 2016, was evaluated under the 360-degree-review process in December
2016, received another review in May 2017, and in December 2017, he was coached
through the results of the 360-degree review. Also, Said fails to present any evidence
showing Mayo’s failure to conduct more 360-degree reviews contributed to his
ultimate termination recommendation or was itself mistreatment of Said. While
additional positive performance reviews could have helped Said, additional negative
performance reviews could have expedited Mayo’s disciplinary actions. And Said
provides little evidence that additional performance reviews would have alleviated
the issues raised in the other reviews and in complaints against him. Indeed, Jones
testified that Dearani did not initiate additional 360-degree reviews to protect Said
from poor reviews.
Finally, while Said argues that some of his romantic feelings were
reciprocated, the “critical inquiry . . . is not whether the employee actually engaged
in the conduct for which he was terminated, but whether the employer in good faith
believed that the employee was guilty of the conduct[.]” McCullough, 559 F.3d at861–62. The record overwhelmingly demonstrates that Mayo believed Said was
guilty of making unwelcomed advances toward female coworkers and of other
misconduct. Said fails to “create a real issue as to the genuineness of” Mayo’s
perceptions. Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685 (8th Cir.
2002).
For these reasons, we affirm the district court’s grant of summary judgment
in favor of Mayo with respect to Said’s employment discrimination claims under
Title VII and the MHRA.
B. Reprisal
Said claims Mayo violated the MHRA prohibition against reprisal by
retaliating against him because he alleged discrimination by Mayo. A prima facie
MHRA reprisal case is established by showing by a preponderance of the evidence:
-12-
(1) an employee’s statutorily protected activity; (2) an employer’s adverse
employment action; and (3) “a causal connection between the two.” Fletcher v. St.
Paul Pioneer Press, 589 N.W.2d 96, 101–02 (Minn. 1999) (quoting Hubbard v.
United Press Int’l, 330 N.W.2d 428, 444 (Minn. 1983)). Once a prima facie case is
established, the employer must articulate a legitimate nondiscriminatory reason for
the adverse action, and then the employee bears the burden of proving that reason is
pretext. Id. at 102.
The parties do not dispute that Said’s complaint of discrimination (through his
attorney) was a statutorily protected activity or that Mayo took an adverse
employment action against Said. But Mayo argues Said failed to present sufficient
evidence of a causal connection between his complaint and the adverse action.
Said primarily relies on a statement in the termination recommendation letter
that referenced his allegations of discrimination:
The recommendation that your appointment be terminated is based on
the following:
....
5. Investigation revealed that the statement you and your attorney made
that actions were being taken against you because of race/national
origin, was demonstrably false. During your interview you specifically
stated your belief that the current allegations being made against you
were being “orchestrated” because Dr. Dearani was professionally
jealous of you.
Even if this statement establishes a causal connection between Said’s discrimination
complaint and the Recommendation Committee’s termination recommendation,
Mayo articulates legitimate reasons for its adverse action which Said cannot
sufficiently show were pretext. In the termination recommendation letter, the
Department did not fault Said for simply making a discrimination complaint. It
faulted Said for making a discrimination complaint that was “demonstrably false.”
We have held an employee’s filing untruthful complaints is a nonretaliatory reason
-13-
justifying termination. 10 See McCullough, 559 F.3d at 858, 865; see also Fletcher,
589 N.W.2d at 101 (applying federal caselaw arising under Title VII to interpret the
MHRA).
Said argues Mayo’s proffered rationale that Said made an untruthful
complaint was pretext because Mayo never opened an investigation into his
allegations of discrimination. But the Recommendation Committee explained its
reasons for believing the complaint was false in the termination recommendation
letter—Said himself asserted that the reason for the allegations against him was
Dearani’s jealousy of Said. And Rihal testified that the discrimination allegation
was sufficiently investigated by HR as a part of the investigation into Said’s
misconduct, which included a lengthy interview with Said. Further, Said’s
discrimination complaint came after the investigation into his conduct with R.R. was
opened, and “[e]vidence that the employer had been concerned about a problem
before the employee engaged in the protected activity undercuts the significance of
the temporal proximity” between the protected activity and the adverse employment
action. A Xiong v. Minneapolis Pub. Schs., No. A18-2027, 2019 WL 4409715, at
*3 (Minn. Ct. App. Sept. 16, 2019) (unpublished) (quoting Smith v. Allen Health
Sys., Inc., 302 F.3d 827, 834 (8th Cir. 2002)); see also Hervey v. Cnty. of
Koochiching, 527 F.3d 711, 723 (8th Cir. 2008) (“Insubordinate employees may not
insulate themselves from discipline by announcing an intention to claim
discrimination just before the employer takes action.”).
Finally, regarding Mayo’s reporting of Said’s resignation to the State Board,
as already discussed, the record demonstrates Mayo believed it was required to
report Said’s termination to the State Board because Said resigned during an open
investigation into his misconduct. See Minn. Stat. § 147.111, subd. 2; see also Minn.
Stat. § 147.121, subd. 1 (“Any person, health care facility, business, or organization
is immune from civil liability . . . for submitting a report to the board pursuant to
10
Thus, Mayo’s accusing Said of filing an untruthful complaint is also not
direct evidence of reprisal requiring trial as Said suggests.
-14-
section 147.111 . . . .”). Said fails to present sufficient evidence showing this was
pretext for retaliatory intent.
III. Conclusion
For the reasons stated herein, we affirm the district court’s grant of summary
judgment in favor of Mayo.
______________________________
-15-