Sanjeev Sirpal v. University of Miami , 509 F. App'x 924 ( 2013 )

Case: 11-15210 Date Filed: 02/19/2013 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15210
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-22662-STB
SANJEEV SIRPAL,
Plaintiff-Appellant,
versus
UNIVERSITY OF MIAMI,
a Florida not for profit corporation,
JAMES D. POTTER, Ph.D.,
JOSE RENATO PINTO, Ph.D.,
CLAUDIA RODRIGUES, Ph.D.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 19, 2013)
Before CARNES, BARKETT and MARTIN, Circuit Judges.
PER CURIAM:
Case: 11-15210 Date Filed: 02/19/2013 Page: 2 of 18
This case arises out of Sanjeev Sirpal’s dismissal from the University of
Miami’s (UM) graduate school and medical school. Based on the circumstances
surrounding his dismissal, Sirpal filed suit against UM, Dr. James Potter, Dr. Jose
Pinto, and Dr. Claudia Rodrigues (collectively Defendants) alleging a variety of
claims. A magistrate judge1 granted summary judgment to the Defendants on
Sirpal’s claims of racial discrimination (Counts I and III), breach of contract
(Count II), defamation (Counts IV, VII, VIII, and IX), and tortious interference
(Count X). Sirpal appeals this decision.
After the summary judgment ruling, Sirpal moved to dismiss the two
remaining counts of his complaint (Counts V and VI) without prejudice. The
magistrate judge granted this motion, but denied his request to equitably toll the
statute of limitations as to those counts. Sirpal also appeals this decision.
“This Court reviews the granting of summary judgment de novo, applying
the same legal standards which bound the district court.” Whatley v. CNA Ins.
Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). “Summary judgment is appropriate
only when there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Id. (quotation marks omitted).
In making this determination, all “evidence must be viewed in the light most
1
The parties consented to jurisdiction before the magistrate judge. 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73.
2
Case: 11-15210 Date Filed: 02/19/2013 Page: 3 of 18
favorable to the party opposing the motion for summary judgment.” Blackston v.
Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). “The
question of whether equitable tolling applies is a legal one [also] subject to de novo
review.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005).
I. DISCRIMINATION CLAIMS
In Counts I and III, Sirpal brought claims for race discrimination under Title
VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq., and 42 U.S.C. § 1981, and
appeals the grant of summary judgment in favor of the Defendants on these claims.
To establish a violation of either Title VI or § 1981, a plaintiff must show
that a challenged action was the result of intentional discrimination on the part of
the defendant. See Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 n. 2 (11th Cir.
1994); Elston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1405–06 & n.11
(11th Cir. 1993). The plaintiff may use direct evidence or, in the absence of direct
evidence, circumstantial evidence that satisfies the McDonnell Douglas burden-
shifting framework. 2 See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330–
31 (11th Cir. 1998); 15 Am. Jur. 2d Civil Rights § 389 (2012).
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824 (1973).
3
Case: 11-15210 Date Filed: 02/19/2013 Page: 4 of 18
Sirpal argues that he sufficiently established intentional discrimination
through both direct evidence and circumstantial evidence. We address each
method of proof in turn.
A.
“Direct evidence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or presumption.”
Standard, 161 F.3d at 1330. Thus, “remarks by non-decisionmakers or remarks
unrelated to the decisionmaking process itself are not direct evidence of
discrimination.” Id. It is uncontroverted that the only discriminatory remarks
Sirpal alleges were not made by the individuals who ultimately decided to dismiss
Sirpal from UM’s graduate school and medical school, the challenged actions in
this case.
Sirpal argues that he has shown direct evidence of discrimination because
this is a “cat’s paw” case. A cat’s paw case is one in which the “harasser
employed the decisionmaker as her ‘cat’s paw’—i.e., the decisionmaker acted in
accordance with the harasser’s decision without herself evaluating the employee’s
situation.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.
1998). “In a cat’s paw situation, the harasser clearly causes the tangible
employment action, regardless of which individual actually signs the employee’s
4
Case: 11-15210 Date Filed: 02/19/2013 Page: 5 of 18
walking papers.” Id. In cat’s paw cases, the harasser’s statements may be direct
evidence of discrimination even though the harasser was a non-decisionmaker.
See id.However, this was not a cat’s paw case. Prior to Sirpal’s dismissal from
UM’s graduate school and medical school, each school conducted some sort of
independent investigation. At the graduate school, the Graduate Committee
allowed Sirpal to testify at a hearing before dismissing him from his M.D./Ph.D.
program on the ground that he had engaged in misconduct and unethical behavior
in the lab he worked in. When Sirpal appealed this decision, Dr. John Bixby,
Associate Dean for Graduate Studies for the medical school, met with the Graduate
Committee members, the University Security Officer who had investigated one of
the allegations of misconduct, the lab manager, Ms. Jones, and Sirpal. Therefore,
even if Sirpal’s supervisor, Dr. Potter, had submitted to the Graduate Committee a
report that “rubberstamped” the discriminatory animus of Sirpal’s harassers as
Sirpal alleges, this is not a cat’s paw case because the independent investigation
determined that dismissal was, apart from Dr. Potter’s recommendation, entirely
justified. See Staub v. Proctor Hosp., ___ U.S. ___, ___, 131 S. Ct. 1186, 1193
(2011); cf. Llampallas, 163 F.3d at 1249–50 (analyzing whether plaintiff’s Title
VII claim was a “cat’s paw case” and explaining that “[w]hen the employer makes
5
Case: 11-15210 Date Filed: 02/19/2013 Page: 6 of 18
an effort to determine the employee’s side of the story before making a tangible
employment decision affecting that employee . . . it should not be held liable . . .
for that decision based only on its employee’s hidden discriminatory motives”).
Similarly, the medical school conducted an independent investigation, which
included hearing Sirpal’s side of the story, before dismissing Sirpal from its
program. After he was dismissed from the graduate school, questions arose
regarding the source of data Sirpal used in an article he co-published with Dr.
Potter. UM’s Vice Provost for Research initiated a scientific misconduct
investigation concerning the data. A Preliminary Investigative Committee, Full
Investigative Committee and a forensic examining company investigated Sirpal’s
potential research misconduct and considered oral and written testimony by Sirpal,
interviews, and other evidence. During these investigations Sirpal was placed on a
mandatory leave of absence based on the allegations of misconduct underlying his
dismissal from the graduate school. After a thorough investigation, the Medical
Education Administration dismissed Sirpal from the medical school, citing
unprofessional conduct as its reason.
Thus, Sirpal did not show direct evidence of discrimination which caused
the adverse action.
6
Case: 11-15210 Date Filed: 02/19/2013 Page: 7 of 18
B.
When a discrimination claim is supported by circumstantial evidence, the
district court may analyze the case using the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824
(1973). Under the McDonnell Douglas framework, the plaintiff bears the initial
burden of presenting sufficient evidence to allow a reasonable jury to determine
that he has satisfied the elements of his prima facie case. Id. at 802, 93 S. Ct. at
1824. If the plaintiff presents a prima facie case and the employer offers a
legitimate, non-discriminatory reason for the adverse employment action, the
burden shifts back to the plaintiff to show that the stated reason is a mere pretext
for unlawful discrimination. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1264 (11th Cir. 2010).
Sirpal argues that the magistrate judge erred in determining that he had not
established that similarly situated individuals had been treated differently and
therefore had not established a prima facie case of discrimination. Sirpal argues
that he was treated differently than Dr. Potter and Dr. Pinto and that those two
individuals were similarly situated.
This argument ultimately fails. “When comparing similarly situated
individuals to raise an inference of discriminatory motivation, the individuals must
7
Case: 11-15210 Date Filed: 02/19/2013 Page: 8 of 18
be similarly situated in all relevant respects besides race . . . since ‘[d]ifferent
treatment of dissimilarly situated persons does not violate’ civil rights laws.”
Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1273 (11th Cir. 2004) (internal
citations omitted). Neither Dr. Potter nor Dr. Pinto is “similarly situated in all
relevant respects besides race.” Id.First, Sirpal argues that he was similarly situated to Dr. Potter because they
were co-authors of the article that was the subject of a research misconduct
investigation and were both investigated by UM. Sirpal was subjected to a
mandatory leave of absence while the investigation was pending and Dr. Potter
was not. But, contrary to Sirpal’s argument, he and Dr. Potter were not similarly
situated. Sirpal was placed on a mandatory leave of absence from the medical
school in significant part based on the same allegations that had already led to his
dismissal from the graduate school, and which the medical school was
independently investigating. There is no indication that Dr. Potter was facing other
allegations of misconduct separate from the research misconduct investigation.
Also, Sirpal was a student at UM while Dr. Potter was an employee, professor, and
Department Chair. Thus, Sirpal and Dr. Potter had different relationships with
UM. Cf. Lathem v. Dept. of Children and Youth Servs., 172 F.3d 786, 793 (11th
Cir. 1999) (explaining that when determining whether individuals were similarly
8
Case: 11-15210 Date Filed: 02/19/2013 Page: 9 of 18
situated “[t]he relevant inquiry is not whether the employees hold the same job
titles, but whether . . . [they were] subjected . . . to different employment policies”).
Second, Sirpal argues that he was similarly situated to Dr. Pinto. He says
that he was treated differently from Dr. Pinto because when he was accused of an
ethical violation he was dismissed, but when Dr. Pinto solicited Sirpal “to include
him as an author on work he made no contribution toward,” an action that was
unethical, Dr. Pinto was not even reprimanded. Again, Sirpal was not similarly
situated to Dr. Pinto in all relevant aspects. Dr. Pinto was a post-doctorate fellow
as opposed to a student, and was therefore subject to a different set of policies than
Sirpal. Id.Because Sirpal failed to show that his dismissal from UM’s graduate school
and medical school were the result of racial discrimination using either direct
evidence or circumstantial evidence, the magistrate judge properly granted
summary judgment in favor of the Defendants on the discrimination claims.
II. BREACH OF CONTRACT CLAIM
In Count II, Sirpal sued UM for breach of contract on the ground that UM
failed to provide Sirpal with “due process,” a “fair investigation,” and “access to
his academic records.” Sirpal appeals the magistrate judge’s grant of summary
judgment in favor of UM on this claim as well.
9
Case: 11-15210 Date Filed: 02/19/2013 Page: 10 of 18
Under Florida law, the legal relationship between a private university and a
student is “solely contractual in character.” Jallali v. Nova Se. Univ., Inc., 992 So.
2d 338, 342 (Fla. 4th DCA 2008) (quotation marks omitted). The university “may
set forth the terms under which it will admit and subsequently graduate students
who subject themselves to the rules, regulations and regimen of the college.”
Univ. of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966). These terms
may be derived from university publications such as the student handbook and
catalog. Jallali, 992 So. 2d at 342. “A court will not interfere with a private
university’s enforcement of its regulations unless the university has acted
arbitrarily and capriciously, in violation of a constitution or statute, or for
fraudulent purposes.” Id. at 343.
Sirpal argues that UM was arbitrary and capricious because it: 1) used a
procedure different from the one outlined in the Honor Code and Student
Handbook to investigate his alleged misconduct, resulting in his arbitrary dismissal
from the graduate school; 2) placed him on a leave of absence from the medical
school; and 3) withheld his transcripts.
These arguments are also unsuccessful for Sirpal. First, we agree with the
magistrate judge that Sirpal has not raised a genuine issue of material fact as to
whether UM acted arbitrarily and capriciously in its investigation of Sirpal’s
10
Case: 11-15210 Date Filed: 02/19/2013 Page: 11 of 18
misconduct and dismissal of Sirpal from the graduate school. As explained by the
magistrate, “Sirpal has failed to show that any of the procedures he cites in any of
UM’s documents were mandatory and/or exclusive, and fails to establish that
UM’s decision to apply [the specific procedure] was arbitrary, malicious, or in bad
faith.” Further, because Sirpal was notified of the Graduate Committee’s
proceedings, Sirpal had an opportunity to be heard, and the Committee’s decision
was based on substantial evidence, Sirpal was afforded due process. See Matar v.
Fla. Int’l Univ., 944 So. 2d 1153, 1160–61 (Fla. 3d DCA 2006) (discussing the due
process required in student disciplinary proceedings). Sirpal also had the
opportunity to appeal the decision of the Graduate Committee. An Associate Dean
then completed a secondary investigation and Sirpal was able to appeal the
Associate Dean’s affirmance to the Dean of the graduate school and the Graduate
Student Appeals Committee.
Second, we agree with the magistrate judge that Sirpal has not raised a
genuine issue of material fact as to whether UM acted arbitrarily by placing Sirpal
on a leave of absence from the medical school. The Medical Student Handbook
explicitly allows the school to require a mandatory leave of absence “for
professional misconduct or other reasons” and the reasons provided by UM “were
11
Case: 11-15210 Date Filed: 02/19/2013 Page: 12 of 18
not arbitrary, based on bad faith or malice.” In addition, the medical school
followed the procedures outlined in the Handbook related to “Mandatory Leave.”
Third, we agree with the magistrate judge that Sirpal has not raised a
genuine issue of material fact as to whether UM’s decision to withhold his
transcripts during the time period alleged was arbitrary and capricious. Dr. Robert
Hernandez explained that the transcripts were withheld according to the school’s
policies, Sirpal’s dismissal from the graduate school and the M.D./Ph.D. program,
and the uncertain nature of Sirpal’s status at the medical school. Dr. Hernandez
said it was for these reasons, and to ensure accuracy, that a hold was placed on
Sirpal’s “official medical school and graduate school transcripts until all
investigations and questions regarding [Sirpal’s] status were resolved.”
Therefore, it was proper for the magistrate judge to grant summary judgment
in favor of UM on the breach of contract claim.
III. DEFAMATION CLAIMS
In Counts IV, VII, VIII, and IX, Sirpal brought claims against Dr.
Rodrigues, Dr. Potter, and UM for defamation. He appeals the magistrate judge’s
grant of summary judgment in favor of the Defendants on these claims as well.
Under Florida law, to prove a claim of defamation a plaintiff who is a
private person must show that the defendant published a false and defamatory
12
Case: 11-15210 Date Filed: 02/19/2013 Page: 13 of 18
statement, that there were actual damages, and that the defendant acted negligently.
Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). “Words are
defamatory when they tend to subject one to hatred, distrust, ridicule, contempt or
disgrace or tend to injure one in one’s business or profession.” Am. Airlines, Inc.
v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (quotation marks omitted).
First, as to Count IV, Sirpal has not shown that Dr. Rodrigues made any
false and defamatory statements. Sirpal alleges that two statements are at issue in
his claim against Dr. Rodrigues. The first is Dr. Rodrigues’ statement to the
University Security Officer investigating the unauthorized access of her computer
that Sirpal was a person she previously had problems with. We agree with the
magistrate judge’s assessment that this statement was not a false and defamatory
statement because it was made in direct response to the Security Officer’s request
that Dr. Rodrigues name anyone with whom she had experienced problems with
and in her view she had experienced problems with Sirpal. The second statement
underlying Sirpal’s claim is a statement that Dr. Rodrigues is alleged to have made
to Dr. Bixby about Sirpal being the person who accessed her computer without
authorization. Sirpal presented no evidence that such a statement was made during
the time period alleged in the complaint.
13
Case: 11-15210 Date Filed: 02/19/2013 Page: 14 of 18
Second, Sirpal has not sufficiently supported his Count VII claim that Dr.
Potter and UM defamed him by way of statements Dr. Potter made in a
memorandum to the Graduate Committee regarding Sirpal’s dismissal from Dr.
Potter’s lab. Dr. Potter’s communication to the Graduate Committee was
conditionally privileged under Florida law because Dr. Potter and the Graduate
Committee had corresponding interests in starting any investigation that was
required based on the serious allegations underlying Sirpal’s dismissal from the
lab. See Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla. 1984); Jarzynka v. St.
Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1267 (S.D. Fla. 2004). Therefore,
Sirpal “must plead express malice to proceed with his claim.” Jarzynka, 310 F.
Supp. 2d at 1268 (footnote omitted). Sirpal has not provided sufficient evidence of
malice to survive summary judgment.
Third, with respect to Count VIII, Sirpal has not shown that Dr. Potter and
UM defamed him through statements Dr. Potter made to the Preliminary
Investigative Committee during the scientific research misconduct investigation.
We agree with the magistrate’s conclusion that none of the three statements
outlined in Sirpal’s complaint support Sirpal’s defamation suit: the first statement,
as it was actually made by Dr. Potter, was truthful and there is no evidence that the
other two statements were made.
14
Case: 11-15210 Date Filed: 02/19/2013 Page: 15 of 18
Last, Sirpal has not shown that Dr. Potter and UM defamed him as alleged in
Count IX. In that count, Sirpal alleged that Dr. Potter told the University of
Florida that “Sirpal had altered the image that appeared in the [investigated]
article.” We agree with the magistrate judge that there is no evidence that Dr.
Potter ever made a statement that Sirpal had altered the image.
Accordingly, it was appropriate for the magistrate judge to grant summary
judgment in favor of the Defendants on the defamation claims.
IV. TORTIOUS INTERFERENCE CLAIM
In Count X, Sirpal sued UM and Dr. Potter for tortious interference with
Sirpal’s business relationship with two other universities, Tufts University and the
University of Florida. Sirpal appeals the magistrate judge’s grant of summary
judgment in favor of UM and Dr. Potter on this claim.
Under Florida law, to succeed on a claim of tortious interference with a
business relationship a plaintiff must show: “(1) the existence of a business
relationship . . . ; (2) knowledge of the relationship on the part of the defendant; (3)
an intentional and unjustified interference with the relationship by the defendant;
and (4) damage to the plaintiff as a result of the breach of the relationship.” See
Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994)
(quotation marks omitted). While the business relationship “need not be evidenced
15
Case: 11-15210 Date Filed: 02/19/2013 Page: 16 of 18
by an enforceable contract,” the relationship generally must be “evidenced by an
actual and identifiable understanding or agreement which in all probability would
have been completed if the defendant had not interfered.” Id. at 814–15.
The magistrate judge held that Sirpal had not sufficiently demonstrated that
he had a business relationship with Tufts to support a tortious interference claim as
to that university. Sirpal does not challenge this determination. Sirpal only argues
that the magistrate judge erred in determining that he had not demonstrated that
UM and Dr. Potter tortiously interfered as to the University of Florida. He asserts
that UM interfered by withholding transcripts and that Dr. Potter interfered by
“falsely inform[ing] [the University of Florida] that [he] was undergoing research
misconduct investigations.”
Sirpal does not prevail with this argument. Sirpal has not shown that UM
“unjustifi[ably] interfere[d]” with any relationship he had with the University of
Florida. See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla.
1985). As discussed above, UM’s decision to withhold the transcripts from the
University of Florida was justifiable.
Further, Sirpal failed to show that any agreement with the University of
Florida “in all probability would have been completed” if Dr. Potter had not
interfered. Ethan Allen, Inc., 647 So. 2d at 815. The University of Florida’s
16
Case: 11-15210 Date Filed: 02/19/2013 Page: 17 of 18
admission was conditioned on the receipt of an acceptable transcript from UM,
which it never received.
Therefore, the district court properly granted summary judgment to the
Defendants on Sirpal’s tortious interference claim.
V. EQUITABLE TOLLING
After the magistrate judge entered a judgment in favor of the Defendants on
all of these claims, Sirpal moved to voluntarily dismiss his remaining two claims
without prejudice. In its order granting Sirpal’s motion, the magistrate judge
explained that the dismissal essentially functioned as a dismissal with prejudice
because the statute of limitations had expired on the remaining two claims and he
would not extend or toll the statute of limitations. Sirpal’s final argument on
appeal is that the magistrate judge erred by denying Sirpal’s request to toll the
statute of limitations. 3
To the extent that the order granting the motion to dismiss without prejudice
addressed whether the statute of limitations could be equitably tolled if Sirpal were
3
Sirpal also argues that the magistrate judge erred by denying his request to stay the remaining
claims during the pendency of this appeal because the factual allegations underlying the eight
counts on appeal and the two remaining counts were “inextricably linked” and forcing Sirpal to
proceed on the two groups of claims separately would have “doubled both time and effort.” It is
unclear whether the magistrate judge addressed the issue of a stay. Even accepting that the
magistrate judge did deny a stay, Sirpal has not shown that this denial was an abuse of discretion.
See Ortega Trujillo v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262, 1264 n.2 (11th Cir.
2000).
17
Case: 11-15210 Date Filed: 02/19/2013 Page: 18 of 18
to later reassert the claims he was seeking to dismiss, the magistrate judge issued
an advisory opinion. See BankWest, Inc. v. Baker, 446 F.3d 1358, 1367 (11th Cir.
2006) (“If we addressed issues that might arise, we would be rendering an advisory
opinion on future conduct and events . . . .”). Article III does not permit courts to
issue advisory opinions. Id. For this reason, we vacate only the portion of the
magistrate judge’s order addressing the issue of statutory tolling on a hypothetical
future lawsuit as an impermissible advisory opinion.
VI. CONCLUSION
For these reasons we affirm the magistrate judge’s grant of summary
judgment in favor of the Defendants. We affirm the magistrate judge’s grant of
Sirpal’s motion to dismiss the remaining claims, but vacate the portion of the order
addressing the statute of limitations and equitable tolling.
AFFIRMED in part, VACATED in part.
18