Katz v. Wormuth ( 2023 )

Case: 22-30756 Document: 00516941947 Page: 1 Date Filed: 10/24/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 24, 2023
No. 22-30756
Lyle W. Cayce
____________ Clerk
Stephen J. Katz,
Plaintiff—Appellant,
versus
Christine Wormuth, Secretary, United States Department of the Army,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:21-CV-132
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Edith Brown Clement, Circuit Judge: *
A septuagenarian civilian doctor employed by the U.S. Army was
removed from his position as Chief of Surgery and replaced by a military
officer half his age. When he complained, the doctor was suspended pending
an investigation into alleged misconduct, which stretched on until five
months later, when the doctor resigned. The doctor sued for age
discrimination and retaliation, but the district court granted summary
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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judgment to the Army. For the following reasons, we AFFIRM as to the age
discrimination claim but REVERSE and REMAND on the retaliation
claim.
I.
A.
In April 2016, the Army hired Dr. Stephen Katz as a civilian surgeon
at Bayne-Jones Army Community Hospital in Fort Polk, Louisiana. He was
73 years old. In October 2016, he was appointed Chief of Surgery. Katz
competed for the Chief of Surgery position against two other general
surgeons, including Dr. Isaac Isaiah. The relationship between Katz and
Isaiah ultimately deteriorated to the point where the two did not speak to
each other. 1
Katz remained Chief of Surgery until August 1, 2018, when he was
replaced by Major Caton Simoni, a 37-year-old active-duty Army Medical
Corps Officer. The decision to replace Katz (a civilian) with Major Simoni
(an officer) was part of a hospital-wide policy change implemented by the
new Deputy Commander for Clinical Services, Lieutenant Colonel Brian
Adams, M.D., which was designed “to put uniformed personnel in the
department leadership roles as career development opportunities for young
Officers.” Upon learning that he had been replaced as Chief of Surgery, Katz
submitted a Memorandum for Record entitled “Hostile work environment”
in which he asserted that being replaced as Chief of Surgery without any
_____________________
1
Katz, who is Jewish, claimed that Isaiah, who is Christian, was given preferential
treatment due to the “pro-Christian” ideology that permeated the hospital’s culture.
Katz’s religious discrimination claim is not before this court on appeal. Nonetheless,
Katz’s belief that Isaiah was given preferential treatment by, and was in cahoots with,
hospital leadership is still relevant to the claims that are on appeal.
2
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notice “represented a total lack of respect and an extension of the hostile
environment in which [he] functioned.”
On August 17, 2018—approximately two weeks after he had been
replaced as Chief of Surgery and nine days after his internal complaint—the
hospital’s Credentials Committee convened an ad hoc meeting and voted to
place Katz’s clinical privileges in abeyance “due to allegations and reported
concerns regarding [his] approach to surgical procedures, unprofessional
conduct with staff, as well as concerns regarding patient safety and
professional integrity.” The Committee also placed Isaiah’s clinical
privileges in abeyance the same day “due to allegations and reported
concerns regarding [his] surgical skill and practices, [his] performance within
Department of Surgery, and concerns [his] surgical practices are outdated
and potentially unsafe to patients.” Adams was the Chairperson of the
Credentials Committee.
The Notices of Abeyance sent to Katz and Isaiah stated that the
abeyance was valid for 15 days, with an option to extend it to 30 days, while
an investigation was conducted into the allegations, and that if the
investigation was still ongoing after 30 days, the abeyance would
automatically convert into a summary suspension. The Notices also
explained that if the investigation found “substantial cause to proceed,” the
hospital’s Credentials Committee would send the case to a more thorough
“peer review.” In response to the abeyance, on August 21, 2018, Katz
submitted another Memorandum for Record, this one entitled “Summary of
Inappropriate [B]ehavior from the Bayne-Jones Army Community Hospital
Command Group,” which, according to Katz, outlined the “overwhelming
evidence that [he] was treated unfairly, and in a consistently hostile manner
by Dr. Adams and the [hospital] command group.”
3
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An investigator was assigned to Isaiah’s case on September 4, 2018,
but an investigator was not assigned to Katz’s case until September 17, 2018.
Because the investigation into Isaiah was still ongoing—and the investigation
into Katz had not even begun—when the 30-day window expired, their
abeyances converted to summary suspensions on September 16, 2018. The
investigations into Katz’s and Isaiah’s conduct were completed on October
3 and October 5, 2018, respectively. Both investigators recommended that
the doctors’ clinical privileges be reinstated. The Credentials Committee
reviewed the investigators’ reports during its October 10, 2018 meeting. As
to Isaiah, the Committee voted to adopt the investigator’s recommendation,
and Isaiah’s clinical privileges were reinstated the next day. But as to Katz,
the Committee raised an additional concern—“potential fraudulent
documentation on a postoperative patient”—that the investigator had not
addressed. This concern about potentially fraudulent documentation dated
back to a June 30, 2018 complaint that Isaiah had filed against Katz (Adams
was CC’d on the complaint). The Committee therefore deferred voting on
Katz’s reinstatement until an investigation could be conducted into the
potential fraudulent documentation. On October 16, 2018, shortly after
learning about the Committee’s decision, Katz contacted an Equal
Employment Opportunity (EEO) counselor to initiate an informal
complaint. 2
_____________________
2
Under the established process, Katz had 45 days from each allegedly
discriminatory event to initiate an informal complaint with an EEO Counselor. If, after 30
days, the EEO Counselor was not able to informally resolve the complaint, Katz would be
permitted to file a formal EEO complaint. The Army would then investigate the allegations
in the complaint and produce a report, after which Katz could either request a hearing by
an EEOC administrative judge or a decision on the record from the Army. See EEO
Complaint Procedures, U.S. ARMY, https://home.army.mil/benelux/index.php/about/G
arrison/equal-employment-opportunity/eeo-program (last visited Oct. 11, 2023); see also
29 C.F.R. § 1614.
4
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On November 7, 2018—with the investigation into the potential
fraudulent documentation completed—the Committee met again to discuss
Katz’s suspension. The meeting minutes do not state whether the
investigator substantiated the fraudulent documentation claim. Instead, the
minutes note that the investigator “stated in his report that other complaints
regarding Katz were leveled during the [investigator’s] interviews” and that
“[d]uring the committee discussion it came to light from a few members of
the Credentials Committee that Dr. Katz has previously left patients without
completing a handoff or report on a patient to the other surgeon on staff,”
i.e., Isaiah. The Committee therefore voted to send Katz to peer review.
Katz’s peer review was conducted on December 12, 2018. The review
panel found “no significant concerns for patient care or patient safety” and
noted that the “poor professional environment” between Katz and Isaiah
was “likely the reason for the identification of the [potentially fraudulent
documentation] in question.” The panel therefore recommended that Katz’s
clinical privileges be reinstated. However, the Credentials Committee did
not convene to discuss the review panel’s recommendation until January 25,
2019—more than a month later. In the interim, Katz filed a formal EEO
complaint on December 28, 2018—alleging a hostile work environment and
discrimination based on race, age (76), national origin (Jewish), and religion
(Jewish)—and resigned effective January 2, 2019. He then amended his EEO
complaint on January 3, 2019.
Katz alleges that, prior to tendering his resignation, Colonel Marla
Ferguson, the hospital’s commanding officer, threatened that if Katz did not
resign, she would “end [his] career.” On January 25, 2019—three weeks
after Katz’s resignation—the Credentials Committee voted to reinstate
Katz’s clinical privileges. Katz was informed of his reinstatement on January
31, 2019.
5
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B.
Following the EEO office’s investigation of his complaint, Katz
requested a hearing before an Equal Employment Opportunity Commission
(EEOC) administrative judge. On August 4, 2020, the administrative judge
ruled against Katz’s claims on the merits, and the Army’s EEO office
adopted that decision on October 20, 2020.
On January 18, 2021, Katz filed suit in federal court asserting four
causes of action: (1) age discrimination; (2) hostile work environment; (3)
retaliation; and (4) religious discrimination. At summary judgment, however,
Katz proceeded only upon his claims that the Army had: (1) removed him
from his position as Chief of Surgery because of his age, in violation of the
Age Discrimination in Employment Act (ADEA); and (2) retaliated against
him, in violation of the ADEA and Title VII of the Civil Rights Act of 1964,
by placing his clinical privileges in abeyance, converting his abeyance to a
summary suspension, and delaying resolution of the investigation into his
conduct, which culminated in his constructive discharge.
The district court dismissed Katz’s claims concerning his removal as
Chief of Surgery and the abeyance of his clinical privileges as time-barred by
29 C.F.R. § 1614.105(a)(1), which requires federal employees to “initiate
contact with [an EEO] Counselor within 45 days of the date of the matter
alleged to be discriminatory.” The court rejected Katz’s arguments that the
Army had waived any timeliness objection by adjudicating his EEO
complaint on the merits and that his claims concerning the abeyance were
timely under the continuing violation doctrine because it was connected to
his subsequent automatic suspension and further investigations. The court
then dismissed Katz’s retaliation claim for failure to exhaust his
administrative remedies because he did not “check the box for reprisal in his
EEO complaint.”
6
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Despite dismissing Katz’s claims on timeliness and exhaustion
grounds, the district court proceeded to analyze the merits of Katz’s age
discrimination and retaliation claims and, applying the familiar McDonnell
Douglas burden-shifting framework, dismissed them once again. The court
determined that Katz failed to establish a prima facie case of retaliation, and
found that, while Katz had presented a prima facie case of age discrimination,
the Army had come forward with a legitimate, nondiscriminatory reason for
removing Katz as Chief of Surgery and Katz had not shown that this reason
was pretextual. Katz timely appealed.
II.
We review de novo the district court’s determination of whether Katz
exhausted his administrative remedies. Pacheco v. Mineta, 448 F. 3d 783, 788
(5th Cir. 2006). The district court’s grant of summary judgment on the
merits of Katz’s claims is also reviewed de novo, with all factual inferences
viewed in the light most favorable to Katz. Caldwell v. KHOU-TV, 850 F.3d
237, 241 (5th Cir. 2017). We may affirm the district court’s grant of summary
judgment on any adequate ground supported by the record, even if it is
different than the one on which the district court actually relied. Montgomery
v. Brookshire, 34 F.3d 291, 297 (5th Cir. 1994). The court “should grant
summary judgment when ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Davidson v.
Fairchild Controls Corp., 882 F.3d 180, 184 (5th Cir. 2018) (quoting Fed. R.
Civ. P. 56(a)). In the employment discrimination context, the purpose of
summary judgment is to weed out “patently meritless cases.” Caldwell, 850
F.3d at 241 (internal quotation marks and citation omitted).
7
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III.
We begin with Katz’s age-discrimination claim. 3 Under the federal-
sector provision of the ADEA, all federal personnel actions must be “free
from any discrimination based on age.” 29 U.S.C. § 633a(a) (emphasis
added). Accordingly, Katz establishes a triable ADEA claim against the
Army if he shows a genuine dispute as to whether age played “any part” in
the Army’s decision to remove him from the Chief of Surgery position. 4 See
Babb v. Wilkie, 140 S. Ct. 1168, 1174 (2020). 5 He can make this showing
through direct evidence, circumstantial evidence, or both. Jackson v. Cal-W.
Packaging Corp., 602 F.3d 374, 377 (5th Cir. 2010).
As he did before the district court, Katz contends on appeal that the
Army’s investigative report, which found that hospital leadership removed
Katz from his position as Chief of Surgery as part of a hospital-wide decision
“to put uniformed personnel in the department leadership roles as career
development opportunities for young Officers,” was direct evidence of age
discrimination. We agree. 6 “A statement or document which shows ‘on its
_____________________
3
Because we find that Katz’s age-discrimination claim failed on the merits, we do
not address whether it was also time-barred under 29 C.F.R. § 1614.105(a)(1).
4
This is in direct contrast to ADEA claims against private-sector employers,
which, given the statutory language prohibiting personnel actions taken “because of [an]
individual’s age,” 29 U.S.C. § 623(a)(1) (emphasis added), require “but-for” causation.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
5
Even if Katz’s age-discrimination claim could survive summary judgment under
the lower causation standard for federal-sector employees, because he cannot establish but-
for causation, he is limited to “injunctive or other forward-looking relief” and “cannot
obtain reinstatement, backpay, compensatory damages, or other forms of relief related to
the end result of an employment decision.” Babb, 140 S. Ct. at 1177–78. But we need not
reach such remedy-related issues because Katz’s age-discrimination claim fails.
6
Disregarding Katz’s contrary contentions, the district court adopted the Army’s
argument that the use of the word “young” in “young Officers” “refers to how much
professional experience the officer has,” not the officer’s age, and therefore found that this
was not evidence of age-based discrimination. But it was error for the district court to make
8
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face that an improper criterion served as a basis—not necessarily the sole
basis, but a basis—for the adverse employment action is direct evidence of
discrimination.’” Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 579 (5th
Cir. 2020) (alteration adopted) (quoting Herster v. Bd. of Supervisors of La.
State Univ., 887 F.3d 177, 185 (5th Cir. 2018)). The investigative report,
which Adams confirmed at his deposition was accurate, shows on its face that
age—an improper criterion—served as a basis (although not the sole basis)
for removing Katz from his position as Chief of Surgery.
But our inquiry does not end there. Because Katz has direct evidence
of age-based discrimination, “the burden shifts to [the Army] to ‘prove by a
preponderance of the evidence that the same decision would have been made
regardless of the discriminatory animus.’” Wallace v. Perform. Contractors,
Inc., 57 F.4th 209, 218 (5th Cir. 2023) (quoting Jones v. Robinson Prop. Grp.,
L.P., 427 F.3d 987, 992 (5th Cir. 2005)). The Army has carried this burden.
It is clear from the record that hospital leadership made a hospital-wide
decision to replace civilian department heads with military officers. To be
sure, there was an impermissible preference for “young” officers, and if Katz
were an older military officer who had been replaced by a young military
officer, this could be a very different case. But Katz is not a military officer.
Thus, regardless of his age, Katz would have been replaced as Chief of
Surgery because he is a civilian.
For this same reason, Katz cannot satisfy the McDonnell Douglas
pretext requirement, either. See McDonnell Douglas Corp. v. Green, 411 U.S.
_____________________this determination at the summary judgment stage; the court was required to draw all
factual inferences in favor of Katz. See Richardson v. Oldham, 12 F.3d 1373, 1379 (5th Cir.
1994) (“Credibility determinations have no place in summary judgment proceedings. The
district court chose to believe the defendants’ evidence over the plaintiffs’ and that was
error.” (citations omitted)).
9
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792, 804 (1973). After determining that Katz had established a prima facie
case, the district court correctly identified the Army’s proffered justification
for removing Katz from his position as Chief of Surgery—that department
leadership roles were being converted from civilian positions to military
positions—as legitimate and nondiscriminatory. The ultimate burden thus
shifted back to Katz to establish, by a preponderance of the evidence, that
this justification was pretext for age discrimination. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). To show pretext, Katz needed
to demonstrate either “disparate treatment” or that the Army’s proffered
explanation was “false” or otherwise “unworthy of credence.” Moss v. BMC
Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (citation omitted). The
district court correctly determined that Katz failed to carry this burden.
There is no evidence to suggest disparate treatment (i.e., that other civilian
department heads were allowed to remain in their positions while Katz was
not). Nor has Katz shown that the Army’s proffered explanation was false.
* * *
Because the Army demonstrated a legitimate, non-discriminatory,
non-pretextual reason for removing Katz from his position as Chief of
Surgery, we AFFIRM the district court’s judgment with respect to Katz’s
age discrimination claim.
IV.
Next, we turn to Katz’s retaliation claim. Before addressing the
merits, we must consider two threshold issues: whether Katz
administratively exhausted this claim, and whether the abeyance of Katz’s
clinical privileges can be considered as a basis for this claim.
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A.
The district court held that “Katz did not timely exhaust his
administrative remedies” with respect to his retaliation claim “because of his
failure to check the box for reprisal in his EEO complaint.” This was error.
Our court’s caselaw is clear: “we do not require that a Title-VII plaintiff
check a certain box . . . to exhaust his or her administrative remedies.”
Pacheco, 448 F.3d at 792. Rather, “the plaintiff’s administrative charge will
be read somewhat broadly, in a fact-specific inquiry into what EEO[]
investigations it can reasonably be expected to trigger.” Id. Thus, if a
retaliation investigation could “reasonably have been expected to grow out
of” Katz’s EEO complaint, then he has sufficiently exhausted his
administrative remedies with respect to that claim. See id.Katz filed his EEO complaint on December 28, 2018, and then
amended it on January 3, 2019 to add additional factual allegations
concerning his January 2, 2019 resignation. Although neither the original nor
resubmitted EEO complaint checked the box for “reprisal” or used the word
“retaliation,” the resubmitted complaint set forth the same factual
allegations that form the basis of Katz’s retaliation claim in federal court: the
“inappropriate” abeyance; the “endless and baseless” investigation that
followed the abeyance; the additional investigation that was ordered despite
the investigator’s “recommend[ation] that [Katz] be reinstated with no
clinical change”; and “[five] months of forced inactivity” (i.e., suspension)
“with no basis,” all of which, Katz alleged, made it “clear that the intention
was to dismiss [him] or force [him] to resign,” which he did on January 2,
2019. An investigation into potential retaliation would be “reasonably
expected” to “grow out of” these allegations. See Williams v. Tarrant Cnty.
Coll. Dist., 717 F. App’x 440, 445–46 (5th Cir. 2018) (per curiam) (“Despite
[the plaintiff’s] failure to check the retaliation box, or otherwise include the
word ‘retaliation’ in her charge, it was sufficient to exhaust her retaliation
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claim” because “[t]he administrative investigation which can reasonably be
expected to grow out of [her] charge would examine whether she was
engaged in a protected activity . . . and whether she was terminated as a
result.”(quotation marks and citation omitted) (alteration adopted)). 7
B.
Having determined that Katz administratively exhausted his
retaliation claim, we must decide whether he can rely on the abeyance of his
clinical privileges as a basis for this claim. Under 29 C.F.R. § 1614.105(a)(1),
Katz was required to “initiate contact with [an EEO] Counselor within 45
days of the date of the matter alleged to be” retaliatory. Katz concedes that
he “contacted an EEO counselor on October 16, 2018”—more than 45 days
after “the placement of his clinical privileges in abeyance on August 17,
2018”—but contends that the Army waived its untimeliness defense and, in
any event, the continuing violation doctrine applies. 8 We disagree with both
assertions.
_____________________
7
Katz argues that, even if he failed to exhaust the administrative remedies for his
retaliation claim concerning conduct that occurred before he filed his EEO complaint—
i.e., prior to December 28, 2018—under Gupta v. East Texas State University, 654 F.2d 411,
413–14 (5th Cir. Unit A Aug. 1981), he was not required to exhaust his administrative
remedies to assert a retaliation claim concerning post-December 28 activity, including the
alleged threat Colonel Ferguson made that she would ruin Katz’s career if he did not resign.
However, because Katz amended his EEO complaint on January 3, 2019 to include
allegations concerning this post-December 28 conduct, the Gupta exception would not
apply. See Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007) (per curiam) (holding
that the Gupta exception does not apply where the alleged retaliatory conduct occurred
before the filing of the EEO charge).
8
In his reply brief, Katz asserts for the first time that the district court should have
equitably tolled the 45-day requirement because Katz “was not aware of the timelines for
filing, despite his due diligence.” But it is well established that arguments raised for the
first time in a reply brief are forfeited, Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508
(5th Cir. 2015), and therefore this argument need not be addressed.
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Beginning with waiver, our court has established a bright-line rule that
“[i]n order to waive a timeliness objection, the agency must make a specific
finding that the claimant’s submission was timely.” Rowe v. Sullivan, 967
F.2d 186, 191 (5th Cir. 1992) (citing Munoz v. Aldridge, 894 F.2d 1489, 1494–
95 (5th Cir. 1990)). Here, the Army made no specific finding of timeliness
during the administrative adjudicatory process. Therefore, the district court
correctly held that the Army did not waive its timeliness defense.
Katz argues that Rowe’s specific-finding requirement does not apply
here because “Rowe involved actions of the [Equal Employment
Opportunity] Commission, as opposed to the actions of the federal-
employer.” But our court has repeatedly and consistently applied this rule to
the actions of the federal employer as well. See, e.g., Werner v. Dep’t of
Homeland Sec., 441 F. App’x 246, 249 (5th Cir. 2011) (per curiam) (“Here,
the [Transportation Security Administration] made no such finding . . . .”);
Ulanoff v. Henderson, No. 99-51025, 2000 WL 1835081, at *4 (5th Cir. Nov.
20, 2000) (per curiam) (“[T]he Post Office made no such finding
here . . . .”); Henderson v. U.S. Veterans Admin., 790 F.2d 436, 440–41 (5th
Cir. 1986) (“[T]he Veterans Administration made a specific finding of
timeliness . . . .”). And Katz’s request that we “revisit [the] Rowe holding”
can only be granted by the en banc court, not this panel. See In re Henry, 944
F.3d 587, 591 (5th Cir. 2019) (“Under the rule of orderliness, one panel of
this circuit may not overturn another panel absent an intervening decision to
the contrary by the Supreme Court or this court en banc.” (quotation marks
and citation omitted)).
As for the continuing violation doctrine, the Supreme Court has
explained that it only applies to hostile work environment claims, not
discrimination or retaliation claims. Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 114–15 (2002); accord Hamic v. Harris Cnty. W.C. & I.D. No. 36,
184 F. App’x 442, 447 (5th Cir. 2006) (per curiam) (“[P]ost-Morgan, a
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plaintiff can only recover for retaliation to the extent that it occurred within
the limitations period, that is, the continuing violations doctrine does not
apply to retaliation.”). So, even if, as Katz asserts, the time-barred abeyance
was related to other retaliatory acts that occurred within the 45-day
limitations period, the abeyance cannot be considered as a basis for his
retaliation claim. 9
C.
Finally, we turn to the merits of Katz’s retaliation claim, considering
only those allegedly retaliatory acts that occurred within the limitations
period. To establish a retaliation claim based on circumstantial evidence,
Katz has the initial burden of establishing a prima facie case by showing that:
(1) he engaged in protected activity; (2) he suffered an adverse employment
action; and (3) there was a causal connection between the protected activity
and the adverse employment action. Porter v. Houma Terrebonne Hous. Auth.
Bd. of Comm’rs, 810 F.3d 940, 945 (5th Cir. 2015). If Katz establishes a prima
facie case, the burden shifts to the Army to show a legitimate, non-retaliatory
reason for its decision, and, upon such a showing, the ultimate burden rests
on Katz to demonstrate that the Army’s reason is pretext for retaliation. Id.
at 948. The district court concluded that Katz had not established a prima
facie case because he could not show that he suffered an adverse employment
action. We disagree.
_____________________
9
Although Morgan is a Title VII case, not an ADEA case, the circuits that have
had the opportunity to consider the issue have uniformly applied the Morgan rule to ADEA
claims. See, e.g., Campbell v. BankBoston, N.A., 327 F.3d 1, 10–11 (1st Cir. 2003); Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 239–240 (2d Cir. 2007); Sherman v. Chrysler Corp.,
47 F. App’x 716, 721 (6th Cir. 2002); Law v. Cont’l Airlines Corp., 399 F.3d 330, 333–34
(D.C. Cir. 2005).
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Beginning with the first element of Katz’s prima facie case, the district
court correctly identified that by contacting an EEO counselor on October
16, 2018, Katz engaged in protected activity. But as Katz points out, he also
“engaged in various forms of protected opposition activity before resorting
to his EEO contact beginning in October 2018”—namely, his August 8 and
August 21 Memorandum for Record. See Foster v. Ferrellgas, Inc., 834 F.
App’x 88, 91 (5th Cir. 2020) (“Title VII protects informal complaints so long
as the plaintiff ‘reasonably believed’ the challenged employment practice
violated Title VII.” (citation omitted)). This part of Katz’s prima facie case
is therefore satisfied.
As for the “adverse employment action” element, Katz was required
to “show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)), abrogated
on other grounds by Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023).
“[W]hen determining whether an allegedly retaliatory action is materially
adverse, courts look to indicia such as whether the action affected job title,
grade, hours, salary, or benefits or caused a diminution in prestige or change
in standing among . . . coworkers.” Id. (quotation marks and citation
omitted).
Katz points to three actions which he claims, standing alone and
viewed together, constituted materially adverse events: (1) his August 17,
2018 abeyance; (2) the prolonged investigation into his alleged misconduct,
which extended his abeyance for more than five months; and (3) his forced
resignation. The abeyance cannot be considered as part of this determination
because, as explained above, it is time-barred. And even if we were to
consider it, the abeyance, standing alone, is not a materially adverse event
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because Katz continued to be paid during his suspension period. See Davis v.
Legal Servs. Ala., Inc., 19 F.4th 1261, 1266 (11th Cir. 2021) (“No Circuit has
held that a simple paid suspension, in and of itself, constitutes an adverse
employment action.”) (collecting cases). However, Katz has presented a
triable question of whether, by prolonging Katz’s suspension by repeatedly
adding new grounds for investigation, the Army crossed the line into an
adverse employment action.
For five long months, Katz was unable to continue work as a general
surgeon and was prohibited from seeing or operating on patients—a
consequence that well might have dissuaded a reasonable doctor from making
or supporting a charge of discrimination. Indeed, this court recognized as
much in McCoy v. City of Shreveport, noting that when individuals are placed
on leave pending an investigation into potential wrongdoing, those people are
“indefinitely relieved of all duties and have little, if any, control over their
reinstatement. Consequently, placement on administrative leave may carry
with it both the stigma of the suspicion of wrongdoing and possibly significant
emotional distress.” 492 F.3d 551, 560–61 (5th Cir. 2007) (per curiam),
abrogated on other grounds by Hamilton, 79 F.4th 494. 10 What is more, Katz
spent this time worried that he would be permanently barred from practicing
at the hospital as the investigations into his alleged conduct were ongoing—
increasing anxiety, emotional distress, and the overall deterrent effect. Thus,
Katz has raised a genuine dispute of material fact as to whether he was subject
to an adverse employment action by virtue of the Army’s prolonged
investigation into his alleged misconduct.
_____________________
10
McCoy, 492 F.3d at 559, is also relevant for its abrogation of this court’s holding
in Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000)—that a four-month paid
administrative leave was not an adverse employment action—in light of the Supreme
Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53(2006), which lowered the standard applicable to Title VII retaliation cases.
16
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No. 22-30756
As for Katz’s claim that he suffered the adverse employment action of
forced resignation—i.e., constructive discharge—the district court declined
to consider it due to a failure to exhaust. But, as explained above, Katz did
exhaust this claim, and we therefore consider its substance.
“In order to establish a prima facie case of retaliation based on
constructive discharge, [a plaintiff] ‘must prove that working conditions
would have been so difficult or unpleasant that a reasonable person in [his]
shoes would have felt compelled to resign.’” Harvill v. Westward Commc’ns,
L.L.C., 433 F.3d 428, 439–40 (5th Cir. 2005) (quoting Landgraf v. USI Film
Prods., 968 F.2d 427, 429–30 (5th Cir. 1992)). To determine whether a
“reasonable employee” would feel “compelled to resign,” we consider
whether the plaintiff suffered:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work;
(5) reassignment to work under a younger supervisor; (6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7)
offers of early retirement or continued employment on terms
less favorable than the employee’s former status.
Id. at 440 (quoting Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir.
2001) (alteration adopted)). Here, Katz alleges that he was removed from his
position as Chief of Surgery (a demotion), had his clinical privileges placed
in abeyance (a reduction in job responsibilities), was reassigned to report to
Major Simoni (a younger supervisor), and had his career threatened if he
refused to resign (harassment calculated to encourage resignation). Thus,
Katz has raised a genuine dispute of material fact as to whether he was subject
to a constructive discharge adverse action.
With adverse action established for the purpose of summary
judgment, the remaining element of Katz’s prima facie case is causation,
17
Case: 22-30756 Document: 00516941947 Page: 18 Date Filed: 10/24/2023
No. 22-30756
which the district court did not reach. On appeal, as before the district court,
the Army’s argument on this issue is that “[t]here is no probative evidence
whatsoever to support a retaliatory motive on the part of Dr. Adams.” But a
causal connection can also “be established simply by showing close enough
timing between the two events.” Garcia v. Pro. Cont. Servs., Inc., 938 F.3d
236, 241 (5th Cir. 2019). This court has repeatedly held periods of a few
months between protected activity and adverse action sufficient to satisfy
causation in a prima facie case. See, e.g., Outley v. Luke & Assocs., Inc., 840
F.3d 212, 219 (5th Cir. 2016) (holding two months sufficient to show causal
connection); Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (four
months). As Katz explained to the district court, Katz’s protected activities
and the adverse actions against him occurred in close succession. On August
21, 2018, following the abeyance, Katz submitted a Memorandum for Record
concerning alleged unfair treatment. Within the next two months, Katz’s
abeyance was allowed to lapse into a suspension (September 16) and his
reinstatement was delayed pending an investigation into new allegations
(October 10). Then, within a month of Katz contacting an EEO counselor to
initiate an informal complaint on October 16, Katz’s suspension was further
extended, and he was sent to peer review (November 7). Finally, within days
of Katz submitting his formal EEO complaint on December 28, Katz claims
that he was threatened with ruination if he did not resign. The close timing
between these protected activities and adverse events is sufficient to establish
causation and complete Katz’s prima facie case.
* * *
Because Katz established a prima facie case of retaliation, the district
court erred in granting the Army summary judgment on this basis. We
therefore REVERSE the district court’s judgment with respect to Katz’s
retaliation claim and REMAND for the district court to consider whether
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No. 22-30756
the Army has put forward a legitimate, non-retaliatory, non-pretextual reason
for its adverse employment actions and, if not, to proceed to trial.
19