Thomas v. Cook Children's Health ( 2023 )

Case: 22-10535 Document: 00516894831 Page: 1 Date Filed: 09/14/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
September 14, 2023
No. 22-10535 Lyle W. Cayce
____________ Clerk
Patrick Thomas,
Plaintiff—Appellant,
versus
Cook Children’s Health Care System; Cook Children’s
Physician Network; Cook Children’s Medical Center;
Rick Merrill; Nancy Cychol; W. Britt Nelson; Larry
Reaves; Donald Beam,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-1272
______________________________
Before Davis, Southwick, and Oldham, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant, Patrick Thomas, M.D., appeals the Rule 12(b)(6)
dismissal of his Title VII hostile-work-environment claim and the summary-
judgment dismissal of his racial discrimination and retaliation claims. For the
reasons set forth below, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I. BACKGROUND
Thomas, who is African American, was employed by Defendants-
Appellees, Cook Children’s Health Care System, Cook Children’s Physician
Network, and Cook Children’s Medical Center (“Cook”), as a pediatric
surgeon for approximately twelve years until early 2020. Under his
employment agreement, Thomas had to maintain his hospital credentials in
order to remain on staff. Cook’s Joint Credentials Committee (“JCC”)
traditionally performs a review every two years to determine whether a
physician’s credentials should be renewed. The JCC considers such factors
as the physician’s experience and clinical competence and judgment in the
treatment of patients; ethics and professional conduct; and compliance with
staff bylaws.
At Cook, a staff member can submit a complaint regarding, inter alia,
a fellow staff member’s professional conduct by filing an “event report.”
During the time period relevant to this matter, when an event report was filed
against a physician for “disruptive behavior,” Cook’s risk management was
supposed to review the report first to determine if it presented a serious issue
and/or required further investigation. If the report was deemed serious, it
was forwarded to the JCC for consideration when that physician was up for
renewal of credentials and reappointment. A serious report was also sent to
the physician’s medical director, the head of the area of the hospital where
the event took place, and the chairman of the Peer Assistance Committee
(“PAC”). 1 The physician’s supervisor (usually the medical director) then
was supposed to counsel the physician about the behavior described in an
event report.
_____________________
1
As one physician (Dr. Napoleon Burt) explained, the purpose of the PAC is to
help “physicians facing problems that can impact their ability to treat patients.”
2
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Cook admits, however, that it was common for event reports to be
“delayed” and not presented for resolution until the physician was up for
reappointment. This happened in Thomas’s case. Between 2017 and 2019,
nineteen event reports and two patient complaints were filed against
Thomas, but he was not made aware of them until August 2019, shortly
before the JCC considered renewal of his credentials. When the JCC learned
of the amount of event reports and complaints that had been filed during the
previous two-year credentialing cycle, and that most of them had not been
addressed/resolved, the JCC recommended renewing Thomas’s credentials
for a shortened period (ninety days) and referred him to the PAC for
consideration of those reports. 2
On September 27, 2019, after Thomas learned he was being referred
to the PAC and his credentials were being renewed for only ninety days, he
sent Cook his first written complaint of racial discrimination. One of the
PAC’s members who is also African American, Dr. Napoleon Burt, strongly
argued that Thomas’s anger was understandable in that Thomas was
unaware of the many event reports and patient complaints until much later
and that this type of delay was a recurring issue the PAC was frequently
forced to address. Burt urged that a smaller delegation meet with Thomas.
Burt and two other doctors were part of the delegation—Dr. Maria Perez and
Dr. Chip Huffman.
After two meetings with the delegation, however, Thomas wrote a
letter on October 17, 2019, implying that Perez and Uffman “had suggested
that there was a culture of racial discrimination at [Cook].” Thomas
contended that during one of the meetings, Perez stated that as a Cuban
_____________________
2
Earlier in Thomas’s career, the JCC, when learning of unresolved event reports
regarding Thomas’s behavior, similarly recommended renewing Thomas’s credentials for
a shortened period and referred Thomas to the PAC to review those reports.
3
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woman, she understood it was hard to work at Cook, and that as “an African
American male,” Thomas “ha[d] to work twice as hard to be [at Cook].”
Thomas further contended that Uffman visited his office to inform him that
the Cook administration “was getting nervous about the emails” Thomas
was sending, and that Uffman stated: “We want you here at Cook. But these
emails aren’t making it easy.”
The PAC conducted a meeting on October 23, 2019, which Thomas
attended. During the meeting, Thomas refused to accept any responsibility
for the behavior alleged in the event reports. Rather, he wanted to go through
each event report to identify non-issues and non-truths. He also expressed
concern/frustration with the fact that many of the reports were not raised in
a timely fashion with him. The PAC agreed that this was a problem, although
not unique to Thomas, and recommended that Thomas meet weekly with the
head of perioperative surgery (Valerie Gibbs) so that he could receive—and
give—any concerns in a timely fashion. The PAC also recommended (as did
the delegates) that Thomas receive coaching from Dr. Richard Mellina or
participate in a coaching program. 3
Thomas complained that the PAC’s recommendation of coaching and
meetings with Gibbs was retaliatory, and he demanded further clarification
and information. At the same time, however, he secured a coach (Sola
Winley) and never refused to meet with Gibbs. Dr. Larry Reaves, chair of
the PAC, nonetheless wrote Thomas on January 9, 2021, enclosing a letter
agreement setting forth the PAC’s recommendations and requiring that
Thomas sign it. Reaves testified that he asked Thomas to “sign an agreement
to voluntarily accept the recommendations” because “after all of the
_____________________
3
Mellina provided counseling to Thomas earlier in his career when event reports
repeatedly prompted the JCC to reappoint him for shortened reappointment periods.
4
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communication breakdowns and repeated lack of commitment, [he] felt that
it was appropriate to have written confirmation so that there would be no
misunderstandings.”
In the weeks that followed, Thomas drafted numerous letters to Joe
Gallagher, Cook’s General Counsel, repeatedly alleging that Cook was
“retaliating against him for engaging in protected activity.” After meeting
with Thomas, the JCC outlined its terms for renewal of Thomas’s credentials
in a February 20, 2020 letter. Specifically, Thomas’s credentials would be
renewed for eight months, but this was conditioned on his agreeing to the
following terms: (1) participate in bi-weekly meetings with the director of
perioperative services (Gibbs) and one other nursing leader to discuss
interactions with nursing staff; (2) participate in weekly meetings with a
coach for the first two months with frequency thereafter as approved by the
chair of the JCC; (3) provide a monthly report to the JCC on his
implementation of the above conditions; and (4) attend a one-weekend
program for distressed physicians on improving inter-professional
communication. Dr. Britt Nelson, President of Cook Children’s Physician
Network, wrote a follow-up letter to Thomas on February 26, 2020, notifying
him that if he did not send written confirmation of his agreement to these
terms by February 28, his credentials would not be renewed, and his
employment at Cook would end. Thomas did not do so; consequently, his
employment at Cook terminated.
On November 25, 2020, Thomas filed suit against Cook alleging
discrimination, retaliation, and hostile work environment under Title VII and
Texas law. Cook moved to dismiss the complaint. The district court granted
Cook’s motion in part, dismissing Thomas’s hostile-work-environment
claim for failure to state a claim. After discovery, Cook moved for summary
judgment on Thomas’s discrimination and retaliation claims. Concluding
that Thomas failed to present a prima facie case of discrimination or
5
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retaliation, the district court granted summary judgment in favor of Cook.
Thomas filed a timely notice of appeal.
II. DISCUSSION
On appeal, Thomas asserts that the district court erred in dismissing
his hostile-work-environment claim under Rule 12(b)(6) and in granting
summary judgment in favor of Cook as to his racial discrimination and
retaliation claims.
A. Hostile-Work-Environment Claim
This Court reviews de novo the district court’s dismissal for failure to
state a claim under Rule 12(b)(6). 4 We accept “all well-pleaded facts in the
complaint as true and viewed in the light most favorable to the plaintiff.” 5
Title VII “makes it unlawful for employers to require people to work
in a discriminatorily hostile or abusive environment.” 6 A hostile-work-
environment claim “necessarily rests on an allegation that an employer has
created a working environment heavily charged with discrimination.” 7 “To
be actionable, the work environment must be ‘both objectively and
subjectively offensive, one that a reasonable person would find hostile or
abusive, and one that the victim in fact did perceive to be so.’” 8 To
determine whether a work environment is objectively offensive, courts must
consider “the totality of the circumstances,” including: “(1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it is physically
_____________________
4
Doe v. Columbia-Brazoria Indep. Sch. Dist., 855 F.3d 681, 685 (5th Cir. 2017).
5
Raj v. La. State Univ., 714 F.3d 322, 330 (5th Cir. 2013) (citation omitted).
6
West v. City of Hous., Tex., 960 F.3d 736, 741 (5th Cir. 2020).
7
Raj, 714 F.3d at 330-31 (internal quotation marks and citation omitted).
8
Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
6
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threatening or humiliating, or merely an offensive utterance; and (4) whether
it interferes with an employee’s work performance.” 9
Thomas argues that, contrary to the district court’s determination,
the following alleged actions/inactions set forth a facially plausible hostile-
work-environment claim: Cook’s reliance on “19 events reports and two
patient complaints that were false or unsubstantiated,” Cook’s deviation
from its policies and procedures, Cook’s withholding of information about
the event reports and then expecting him to explain what had occurred,
Cook’s refusal to answer Thomas’s questions when asked in writing, Cook’s
staging of “sham meetings” to be used as pretext, and Cook’s “imposing
ever-changing and exclusive terms and conditions” for Thomas to remain
employed. In essence, Thomas submits that Cook’s handling of the event
reports and patient complaints filed against him in the context of his
credentialing review between August 2019 and February 2020 constituted
harassment.
However, Thomas’s argument is unavailing in light of the allegations
in his complaint. Specifically, Thomas’s complaint fails to plausibly allege
that the above actions (except for possibly one alleged remark) constituted
harassment based on his race. 10 And, the one remark relating to race does not
make out a hostile-work-environment claim. Specifically, Thomas alleges
that Perez stated during a meeting with him, Burt, and Uffman that “[a]s an
African American male [Thomas would] have to work twice as hard” at
Cook. Although this Court has held that the single use of “an unambiguously
_____________________
9
E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).
10
See Raj, 714 F.3d at 330-31 (affirming the district court’s dismissal of plaintiff’s
hostile-work-environment claim because the plaintiff did “not allege any facts that link the
alleged harassment with his race or national origin” and therefore failed “to plead a claim
of hostile work environment”).
7
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racial epithet” by a supervisor in the presence of subordinates can support a
hostile-work-environment claim, Perez’s alleged remark does not meet that
standard. 11
Because we “do not consider . . . incidents of harassment not based on
race,” Thomas’s complaint has failed to plausibly allege facts that
demonstrate he was repeatedly subjected to harassment based on his race. 12
Therefore, we affirm the district court’s Rule 12(b)(6) dismissal of Thomas’s
hostile-work-environment claim for failure to state a claim.
B. Racial Discrimination Claim
This Court reviews grants of summary judgment de novo. 13 Summary
judgment is warranted “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.” 14 The district court determined that Thomas presented evidence to
satisfy the first two prongs of the familiar McDonnell Douglas Corp. v. Green 15
framework—he was a member of a protected class and qualified for the
position at issue. The district court, however, determined that Thomas
failed to present evidence creating a genuine dispute as to the third and fourth
prongs—that he suffered an adverse employment action and that Cook
treated “similarly situated” employees outside of his protected class (i.e.,
_____________________
11
Woods v. Cantrell, 29 F.4th 284, 287 (5th Cir. 2022) (holding that a single incident
of harassment, if sufficiently severe, can state a hostile-work-environment claim); Faragher,
524 U.S. at 788 (noting that “isolated incidents” (unless extremely serious) are insufficient
to assert an objectively hostile work environment).
12
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012).
13
West, 960 F.3d at 740.
14
Fed. R. Civ. P. 56(a).
15
411 U.S. 792, 802 (1973).
8
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“comparators”) more favorably. We agree that Thomas’s prima facie case
fails due to lack of a comparator.
To survive summary judgement regarding a comparator, Thomas had
to show that there were genuine disputes that he and his alleged comparators
“(1) held the same job or responsibilities; (2) shared the same supervisor or
had their employment status determined by the same person; (3) have
essentially comparable violation histories; and (4) have engaged in conduct
nearly identical to the conduct that resulted in” the imposition of conditions
for the renewal of credentials for a shortened reappointment period. 16
Thomas proffered two comparators, whom the district court rejected:
Dr. Jose Iglesias, a White, Hispanic male, and Dr. John Pfaff, a White male.
The district court determined that Iglesias did not qualify as a comparator for
two reasons. First, Iglesias was a medical director and subject to a different
reporting structure. Second, the event reports filed against Iglesias were not
“nearly identical” in quantity or quality. As to the first reason, Thomas
argues that Iglesias’s position is not relevant because the JCC had oversight
over both of them for renewal of credentials, which is the issue at hand.
Thomas makes a valid point here, 17 but he fails to show error in the second
reason the district court rejected Iglesias as a comparator—that the event
reports filed against Iglesias were not “nearly identical” in quantity or
quality. 18
_____________________
16
Ross v. Judson Indep. Sch. Dist., 993 F.3d 315, 322 (5th Cir. 2021) (internal
quotation marks and citation omitted).
17
Thomas and Iglesias need only have “shared the same supervisor or had their
employment status determined by the same person.” Id. (emphasis added).
18
West, 960 F.3d at 740 (“We have defined ‘similarly situated’ narrowly, requiring
the employees’ situation to be ‘nearly identical.’”) (citation omitted).
9
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Thomas argues that Iglesias was promoted in 2011 despite receiving
ten event reports during a two-year credentialing period between 2009 and
2011, and then received additional event reports after his promotion. 19 This
number of event reports is not “nearly identical” in quantity to the amount
Thomas received between 2017 and 2019. To the contrary, Thomas received
almost double the event reports (nineteen), as well as two patient complaints
during the two-year credentialing period relevant here. Thomas states that
Iglesias received another eleven reports against him from 2015 to 2017.
Again, that number is just over half the amount Thomas received during the
relevant two-year period. 20
Similarly, the other comparator proffered by Thomas, Dr. John Pfaff,
did not have event reports “nearly identical” in quantity to the amount
Thomas received in a two-year period. Pfaff had twelve event reports (seven
less than Thomas) and three patient complaints (one more than Thomas)
over a two-year period from 2018 to 2020.
In sum, the district court did not err in determining there was no
genuine dispute that Iglesias and Pfaff did not qualify as comparators and
_____________________
19
To the extent that Thomas may possibly be arguing that he was discriminated
against during this time period because Iglesias received more event reports between 2009
and 2011 than he did, any such claim has long expired. See 42 U.S.C.§ 2000e-5 (requiring
charge be filed with EEOC within 180 days, or 300 days if plaintiff initially instituted
proceedings with a state or local agency).
20
Although Thomas makes additional arguments regarding Iglesias in his reply
brief, this Court usually does not consider arguments made for the first time in a reply brief.
See Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015) (noting that
arguments raised for the first time in a reply brief are waived). Moreover, Thomas’s
arguments have no merit. First, no patient complaints were filed against Iglesias, and
secondly, the records from the PAC meetings indicate that Iglesias received fourteen event
reports “over the years,” which was over a three-year period. In any event, Iglesias was
not treated more favorably than Thomas because it was recommended that he also receive
formal coaching to address the problems prompting the fourteen reports.
10
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that, consequently, Thomas could not establish a prima facie case as to his
racial discrimination claim. 21 Therefore, we affirm the district court’s
summary judgment dismissing Thomas’s racial discrimination claim.
C. Retaliation Claim
To make a prima facie case for retaliation, Thomas must show: (1) that
he engaged in protected activity; (2) that Cook took adverse action against
him; 22 and (3) that a causal connection exists between the protected activity
and the adverse action. 23 An employee engages in a protected activity if he
“oppose[s] any practice made an unlawful employment practice by Title
VII.” 24 “If an adverse employment action occurs within close temporal
proximity to protected activity known to the employer, a plaintiff will have
met [his] burden to establish a prima facie case of retaliation.” 25
_____________________
21
Because Thomas was unable to establish a prima facie case of racial
discrimination, we need not address his arguments bearing on pretext for discrimination,
i.e., whether Cook deviated from its policies and relied on false and unsubstantiated event
reports in order to discriminate against him. See Morris v. Town of Independence, 827 F.3d
396, 403 (5th Cir. 2016) (“Because we hold that [Plaintiff] has not met her burden to set
forth a prima facie case of racial discrimination, we need not discuss the parties’ remaining
arguments regarding pretext.”).
22
“For purposes of Title VII’s anti-retaliation provision, the Supreme Court has
held that an adverse employment action is defined slightly more broadly than the term is
defined in the employment discrimination context.” Welsh v. Fort Bend Indep. Sch. Dist.,
941 F.3d 818, 826 (5th Cir. 2019), abrogated on other grounds by Hamilton v. Dallas Cnty.,
No. 21-10133, 2023 WL 5316716 (5th Cir. Aug. 18, 2023) (en banc). Specifically, a plaintiff
seeking to establish a retaliatory adverse employment action “must show that a reasonable
employee would have found the challenged action materially adverse.” Id. (citation
omitted).
23
Id.24
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (internal quotation marks
and citation omitted).
25
Badgerow v. REJ Prop., Inc., 974 F.3d 610, 619 (5th Cir. 2020) (citation omitted).
11
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If the plaintiff makes this prima facie case, the burden then shifts to
the defendant “to articulate a legitimate, nondiscriminatory or nonretaliatory
reason for its employment action.” 26 If the defendant meets its burden of
production, the ultimate burden of persuasion is on the plaintiff to show that
“the employer’s proffered rationale was pretextual and that engaging in the
protected activity was the but-for cause of the adverse employment
action.” 27 Specifically, “a[t] the pretext stage, the plaintiff must offer
evidence that the adverse action would not have occurred but for his
employer’s retaliatory motive.” 28
(1) The District Court’s Decision
The district court determined that Thomas established the first and
second elements of a prima facie case of discriminatory retaliation.
Specifically, as undisputed by Cook, Thomas engaged in protected activity
when he complained of racial discrimination. As to the second element, the
district court noted the broader definition of “adverse employment action”
applicable in retaliation claims. Under the Supreme Court’s decision in
Burlington Northern & Santa Fe Railway Co. v. White, an adverse employment
action can include actions that “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” 29 We agree
with the district court that factual disputes exist “as to whether requiring a
physician to attend counseling, meetings, and a seminar would, in fact,
_____________________
26
McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
27
Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999);
see also Univ. of Tex. Sw Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013) (announcing that
“retaliation claims must be proved according to traditional principles of but-for
causation”).
28
Badgerow, 974 F.3d at 619 (internal quotation marks and citation omitted).
29
548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted).
12
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dissuade that employee from complaining of discrimination” and that “[a]
shortened reassignment period very well may dissuade a physician in
Thomas’s circumstances from engaging in protected activity.” 30
As to the third prong, however, the district court determined that
Thomas’s prima facie case failed because he was unable to show a causal
connection between the protected activity and the adverse action. Thomas
points out that in addition to complaining to the director of employee
relations (Valerie Warren) in September 2018, which the district court
considered as Thomas’s protected activity, he also sent numerous letters and
emails between September 2019 and February 2020, complaining of unlawful
discrimination and/or retaliation. Assuming without deciding that Thomas
established a prima facie case, we move on to consider the next step in the
burden-shifting framework—whether Cook had legitimate, nonretaliatory
reasons for its actions. We agree with the district court that the number of
event reports and patient complaints filed against Thomas constituted
legitimate, nonretaliatory reasons for Cook’s actions. After having
determined that Cook set forth legitimate, nonretaliatory reasons, the district
court should have then continued with the last step in the burden-shifting
framework, whether (as Thomas argued) those reasons were pretext for
retaliation for his protected activities. Because we can nonetheless affirm the
district court’s summary judgment based on any ground presented to the
district court and supported by the record, we address the pretext issue
below. 31
_____________________
30
Because adverse employment action under the retaliation statute is defined more
broadly, Cook’s challenge to this prong is unavailing. See Welsh, 941 F.3d at 826.
31
See Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (“Even if this court
disagrees with the reasons given by the district court, it may affirm a grant of summary
judgment on any grounds supported by the record and presented to the court below.”
13
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(2) Pretext for Retaliation
Retaliation claims under Title VII “must be proved according to
traditional principles of but-for causation.” 32 Specifically, “to survive a
motion for summary judgment, a plaintiff must show a conflict in substantial
evidence on the question of whether the employer would not have taken the
adverse employment action but for the protected activity.” 33 Cook argues
that it would have taken the same actions even if Thomas had not made any
complaints about discrimination or retaliation. After reviewing the record,
we agree that Thomas was unable to produce evidence to survive Cook’s
motion for summary judgment on this issue.
Thomas complained of racial discrimination in a September 27, 2019,
email responding to the fact that the JCC had referred him to the PAC and
was reappointing him for only ninety days. There is no evidence that Cook
retaliated against Thomas for his complaining in that email. If anything, as
Burt testified, Thomas was treated more favorably than other physicians.
Specifically, three delegates of the PAC (Burt, Uffman, and Perez)
volunteered to meet with Thomas to discuss his concerns and thereafter
conducted two meetings. There is also evidence that it was routine for the
JCC to reappoint a physician for a shortened period and to refer his case to
the PAC when event reports regarding the physician had not been addressed
by the PAC, as was done in Thomas’s case early on in his career.
_____________________
(quoting Berquist, 500 F.3d at 349; Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir.1999)).
32
Brown v. Wal-Mart Stores East, L.P., 969 F.3d 571, 577 (5th Cir. 2020) (citation
omitted).
33
Id. (internal quotation marks and citation omitted).
14
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In an October 17, 2019, letter, Thomas alleged that during one of his
meetings with the delegates, Perez stated she understood that Thomas would
have to work twice as hard at Cook as “an African American male.” Thomas
further alleged that Uffman told him, “We want you here at Cook but these
emails aren’t making it easy.” But, these comments do not create a genuine
issue that the PAC would not have recommended that Thomas receive
counseling and meet weekly with Gibbs in the absence of Thomas’s
complaints of discrimination and retaliation. 34 As noted by the district court,
the counseling recommendation was consistent with the way Cook handled
event reports filed about Thomas’s behavior early on his career, long before
he ever engaged in protected activity. Moreover, the record reflects that the
JCC routinely refers physicians for counseling/coaching to improve
interactions with staff. Furthermore, there is no evidence that the weekly
meetings with Gibbs would not have been recommended had Thomas not
engaged in protected activity. To the contrary, the record evidence shows
that the weekly meetings were recommended in response to Thomas’s
frustration with Cook’s failure to address event reports in a timely fashion.
Thomas contends that he actually accepted the PAC’s
recommendations orally, but that Cook retaliated against him for protected
activity when Reaves required him to sign a letter agreement setting forth the
PAC’s recommendations. Reaves testified in his deposition that Thomas in
fact secured a coach (Sola Winley) and that Thomas never refused to meet
with Gibbs. But, Reaves still sent Thomas a letter on January 9, 2021,
requiring him to sign a letter agreement setting forth the PAC’s
_____________________
34
See, e.g., Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999)
(stating “the ultimate issue on summary judgment is whether [the plaintiff] produced
evidence which could support a finding that she would not have been fired in the absence
of her having engaged in protected conduct”).
15
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recommendations. Reaves’s explanation for doing so was because “after all
of the communication breakdowns and repeated lack of commitment, [he]
felt that it was appropriate to have written confirmation so that there would
be no misunderstandings.”
Under these circumstances, the signature requirement does not
constitute adverse action, even under the broader definition of that term for
purposes of retaliation claims. Thomas had already agreed to the PAC’s
recommendations orally and had already implemented one of the
recommendations by hiring a coach. The letter agreement itself neither
imposed any additional requirements nor provided for any waiver of
Thomas’s rights.
On February 20, 2020, after Thomas attended a meeting with the
JCC, Cook sent Thomas a letter renewing his credentials for eight months.
However, Thomas had to agree to the following conditions: (1) participate
in bi-weekly meetings with Gibbs and one other nursing leader to discuss
interactions with nursing staff; (2) participate in weekly meetings with a
coach for the first two months with frequency thereafter as approved by the
chair of the JCC; (3) provide a monthly report to the JCC on his
implementation of the above conditions; and (4) attend a one-weekend
program for distressed physicians on improving inter-professional
communication.
Although the PAC previously did not require attendance at a weekend
program, Thomas is unable to show that but-for his complaints of
discrimination and retaliation, this requirement would not have been
imposed. Specifically, Cook’s letter states that another event report
regarding Thomas’s conduct was filed on January 27, 2020, and that Thomas
had failed to respond to the JCC’s request for an explanation of the event.
Consequently, Thomas is unable to show that but-for his complaints of
16
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No. 22-10535
discrimination and retaliation, Cook would not have imposed the additional
requirement. Based on the foregoing, the district court did not err in granting
summary judgment in favor of Cook, dismissing Thomas’s retaliation claim.
III. CONCLUSION
For the above reasons, the district court did not err in dismissing
Thomas’s hostile-work-environment claim for failure to state a claim under
Rule 12(b)(6) and in dismissing Thomas’s racial discrimination and
retaliation claims on summary judgment. Accordingly, the district court’s
judgment is AFFIRMED. Appellees’ motion to strike reply brief is
DENIED.
JUDGMENT AFFIRMED; MOTION DENIED.
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