Ghosh, Rita v. Getto, Carl J. ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 12, 2005
Decided August 24, 2005
Before
HON. DANIEL A. MANION, Circuit Judge
HON. ILANA DIAMOND ROVNER, Circuit Judge
HON. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-3501
RITA GHOSH, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois
v. Nos. 04 C 1110 and
04 C 1111
CARL J. GETTO and
ROBERT C. KAUFMANN, Michael M. Mihm,
Defendants-Appellees. Judge.
ORDER
Plaintiff Rita Ghosh sued her former medical residency program and several
of its faculty members claiming that her termination from the program constituted
a deprivation of a liberty interest without due process of law, and was
impermissibly based on her national origin in violation of 42 U.S.C. § 1981 and Title
VII of the Civil Rights Act. Because we find that Ghosh’s complaint failed to allege
that any defendant had publicly disclosed any disparaging information about her,
we affirm the dismissal of her due process claim. And because we find that the
defendants’ proffered reason for firing her was not pretextual, we also affirm the
grant of summary judgment on Ghosh’s Section 1981 and Title VII claims.
No. 04-3501 Page 2
I. BACKGROUND
Ghosh, a United States resident and Indian national, joined the OB/GYN
residency program of Southern Illinois University’s School of Medicine (hereinafter,
“SIUM”) in 1998. Due to visa troubles and procrastination in ending her
relationship with a previous employer, Ghosh began her residency with SIUM six
weeks late. Upon arrival, she was placed at Memorial Medical Center (hereinafter,
“Memorial”)1—one of the hospitals with which SIUM is affiliated—and entered into
a Physician Agreement with both Memorial and Southern Illinois University,
subject to the renewal, non-renewal, and termination provisions of the agreement
itself.
Three days into her residency, Ghosh was given a poor performance
evaluation by the OB/GYN program director, defendant Dr. Kaufmann, who told her
that she was not able to perform a patient history and physical exam or to delineate
pertinent facts and findings. Dr. Kaufmann ultimately concluded that Ghosh was
not performing at the level of a fourth year medical student. On about September 3,
1998, she met with Dr. Kaufmann and Dr. Amy Hall, the OB/GYN Chief Resident,
about her performance in program clinics. In this discussion, Ghosh was told that
patients had reported that Ghosh scared them—complaints that the doctors thought
attributable, at least in part, to the fact that Ghosh was not white and spoke with
an accent. The doctors even surmised that “Nurses will probably not like you if
you’re not white.”
Despite her assignment to special programs designed to improve her work,
Ghosh continued to have problems in meeting program responsibilities and
expectations. By the time of her six week evaluation in October 1998, complaints
from the faculty revealed that she was slow, unwilling to work with several doctors,
unwilling to take responsibility for shortcomings and made excuses by blaming
others, and sometimes late or altogether absent. She had on at least one occasion
failed to follow-up with a patient as required.
Ghosh’s three month evaluation revealed that she was “poor” in the areas of
self-confidence, interpersonal relationships, patient management, diagnostic ability,
fund of knowledge, and manual skills. Most alarming was the revelation that
Ghosh would write progress notes on labor patients by copying nurses’ notes as her
own—without observing the patient herself. On the day after her three month
evaluation, while working with Dr. Hall in the hospital’s STORK clinic, Ghosh was
unable to find a patient’s cervix. By December 1998, she continued to inadequately
1
By order dated April 11, 2005, issued pursuant to joint motion, defendants-
appellees Memorial, Robert T. Clarke, and Shirley Kirk have been dismissed as
parties to this appeal, leaving this appeal to proceed solely with respect to appellees
Carl J. Getto and Robert C. Kaufmann.
No. 04-3501 Page 3
or inconsistently document vital information on patient charts, such as fetal
movement, uterine contractions, loss of fluid from the vagina, and vaginal bleeding.
She then failed to give a presentation required as part of the normal course of her
education.
On January 12, 1999, the OB/GYN faculty unanimously agreed that Ghosh
should be terminated from the program. Dr. Kaufmann, however, and despite
having become concerned that she posed a danger to patients, held off on
terminating Ghosh. Then reports that Ghosh had falsified patient charts began to
surface. Thus, on February 1, 1999, Dr. Kaufmann dismissed Ghosh from the
program, effective February 15, 1999.
Ghosh then retained attorneys to pursue an internal grievance, but, when it
was filed, no claim of discrimination was mentioned. After a hearing, in which
Ghosh was represented by counsel, the Grievance Hearing Committee unanimously
agreed with the decision to terminate. Ghosh then filed unsuccessful charges of
discrimination with the Illinois Department of Human Rights, yielding an
administrative decision ultimately affirmed by Illinois state courts. She sued
Memorial in state court for breach of contract, but that claim was ultimately
dismissed.
Ghosh then filed her first of two federal complaints (before Judge Scott)
against Memorial and several SIUM employees in their individual capacities,
alleging, among other things, that her dismissal in the middle of an academic year
constituted a deprivation of a liberty interest without due process of law, and that
the defendants had discriminated against her in connection with her employment
contract based on her national origin in violation of 42 U.S.C. § 1981. She later filed
a second federal complaint, alleging, among other things, that the defendants
violated her rights protected by Title VII of the Civil Rights Act of 1964 by
discriminating against her based on her national origin. In a December 2001 order
by Judge Scott, the district court dismissed the due process claim, finding that
Ghosh failed to allege that any defendant publicly disclosed any disparaging
information about her. Both federal complaints were then consolidated and
transferred to Judge Mihm. In an August 2004 order, Judge Mihm granted
summary judgment in favor of defendants on Ghosh’s Section 1981 and Title VII
claims, finding that the defendants had advanced legitimate, non-discriminatory
reasons for her termination that were not pretextual. Ghosh appeals.
II. ANALYSIS
A. Ghosh Cannot Establish a Deprivation of Liberty Interest
1. Due Process Claim Not Barred By This Court’s Prior Decision
The individual defendants argue that we cannot consider Ghosh’s appeal of
the dismissal of her deprivation of liberty without due process claim because her
arguments are barred by an earlier decision made by another panel of this court.
No. 04-3501 Page 4
Ghosh filed two notices of appeal stemming from the two rulings rendered below.
The first (the appeal at bar, docketed 04-3501), appealing from Judge Mihm’s
August 2004 summary judgment ruling against her Section 1981 and Title VII
claims, was timely. The second (docketed 04-3685), appealing Judge Scott’s
December 2001 dismissal of the due process claim, was not timely. The second
appeal came before a different panel of this court, which dismissed the appeal for
lack of jurisdiction in an order dated December 17, 2004.
Ghosh concedes that her second appeal challenging the dismissal of her due
process claim was dismissed, but contends that we may consider the issue here
because it falls within the umbrella of the first notice of appeal that was timely
filed. Federal Rule of Appellate Procedure 3 provides that “[t]he notice of appeal . . .
shall designate the judgment, order or part thereof appealed from.” However, “the
rules of Procedure, including Federal Rule of Appellate Procedure 3, will be liberally
construed.” Badger Pharmacal, Inc. v. Colgate Palmolive Co., 1 F.3d 621, 624 (7th
Cir. 1993). In Badger, the appellant’s notice of appeal mentioned only the final
judgment disposing of its complaint, and neglected to mention a prior order that had
dismissed several of its other claims. Nonetheless, the court held that “by
appealing the order resulting in dismissal of the complaint and final judgment for
the defendants, [appellant] sufficiently demonstrated its intention to appeal all
orders previously issued by the district court.” Id. at 626. Here Ghosh also argues
that her appeal of the order granting summary judgment on her remaining claims
and a final judgment for defendants suffices to demonstrate her intention to appeal
all previously issued orders—including that dismissing her due process claim. Such
a conclusion does make sense, in that appellants are not free to appeal the
dismissal of one set of claims until final judgment is entered on any and all
surviving claims. Id. Furthermore, “[o]rdinarily, an appeal from a final judgment
brings up for review all previous orders entered in the case.” Id. Accordingly, we
find that Ghosh’s first appeal sufficed to preserve her appeal of the dismissal of her
deprivation of liberty interest claim.
We also note that, contrary to the appellees’ contention, the doctrine of res
judicata does not preclude this panel from considering the dismissal of this due
process claim. Res judicata requires, among other things, that there be a prior final
judgment on the merits, and dismissal for lack of jurisdiction is not such a
judgment. Fed. R. Civ. P. 41(b) (“[A] dismissal . . . , other than a dismissal for lack
of jurisdiction, . . . operates as an adjudication upon the merits.”) (emphasis added);
see also Sachs v. Ohio Nat. Life Ins., Co., 148 F.2d 128, 132 (7th Cir. 1945) (“[A]
ruling is not res adjudicata when made in a case subsequently dismissed for want of
jurisdiction.”). Though Ghosh’s attempt to amend her first notice of appeal came
before another panel in the form of a “second appeal,” that panel dismissed the
action for want of jurisdiction—staving off the preclusive effect of res judicata in the
appeal at bar.
No. 04-3501 Page 5
2. Ghosh Did Not Aver Public Disclosure of Stigmatizing
Information
Having decided that Ghosh’s appeal of the dismissal of her due process claim
is properly before us, we now proceed to assess the merits of that claim.
In order to state a claim for deprivation of a liberty interest in one’s
post employment reputation, a plaintiff is required to show that (1) he
was stigmatized by the defendant’s conduct, (2) the stigmatizing
information was publicly disclosed, and (3) he suffered a tangible loss
of other employment opportunities as a result of public disclosure.
Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991); see also Townsend v. Vallas, 256
F.3d 661, 669-70 (7th Cir. 2001). Ghosh claimed that she was deprived of a liberty
interest to pursue the occupation of her choice without due process of law when she
was terminated from her residency prior to the end of the academic year. The
district court dismissed this claim, finding that she had failed to allege that any
defendant had publicly disclosed any disparaging information about her.
Ghosh argues that her complaint should be reviewed under the less stringent
standard afforded to pro se litigants, see, e.g., Gleash v. Yuswak, 308 F.3d 758, 761
(7th Cir. 2002); Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir.
1988), as the record indicates that she filed her complaint pro se (though she had
previously been and currently is represented by counsel). Even if the court were to
grant Ghosh the benefit of the pro se litigant rule, her complaint must still allege
facts which in some manner implicate the claimed constitutional concern. Wilson,
839 F.2d at 378-79 (finding pro se complaint failed to state various constitutional
claims by failing to mention any phrases that might somehow invoke the provisions
of the Constitution from which the claimed constitutional protections were derived).
Here, the claim is rooted in stigmatization and public disclosure—yet
nowhere in Ghosh’s complaint is it alleged that the defendants stigmatized Ghosh
or publicly disclosed her ineptitude in medicine. The complaint does mention a due
process violation, but it does so in the context of a deprivation of a property interest
(her contractual rights—a claim since dismissed and not here appealed). The
complaint does allege that Ghosh was terminated in the middle of the academic
year and that in the time since she has been unable to obtain another residency.
Ghosh insists that public disclosure is implicit in such allegations, in that such
dismissal in and of itself sends a message to the public that Ghosh is unfit for any
residency program. But the mere act of dismissing a resident—particularly one
found by an educational facility to be unfit to interact with patients under its
program’s care—does not constitute the sort of affirmative stigmatizing
communication contemplated by this gloss on due process. If it did, then all
premature terminations—even those for undisputedly valid educational
reasons—would constitute a deprivation of liberty claim. See Hannon v. Turnage,
892 F.2d 653, 660 (7th Cir. 1990) (“[E]ven assuming that any information
No. 04-3501 Page 6
surrounding his dismissal was sufficiently damning to implicate a liberty interest,
the government must still have participated in the dissemination of this
information to the public.”); Simpkins v. Sandwich Cmty Hosp., 854 F.2d 215, 218
(7th Cir. 1988) (“Denial of a liberty interest requires more than just being fired.”)
(citing Perry v. FBI, 781 F.2d 1294, 1302 (7th Cir. 1986)). Thus we affirm the
dismissal of Ghosh’s due process claim.
B. Section 1981 and Title VII Claims—Reason for Termination Was Not
Pretextual
Ghosh next claims that she was terminated on the basis of her national
origin (Indian), in violation of her rights under both 42 U.S.C. § 1981 and Title VII
of the Civil Rights Act. Section 1981 prohibits discrimination in the creation and
enforcement of contracts: “All persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce contracts . . . includ[ing] the
making, performance, modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the contractual relationship.” 42
U.S.C. § 1981(a) & (b). Title VII of the Civil Rights Act makes it unlawful for an
employer “to discharge any individual . . . because of such individual’s . . . national
origin.” 42 U.S.C. 2000e-2(a)(1). Because “[w]e analyze § 1981 discrimination
claims in the same manner as claims brought pursuant to Title VII of the Civil
Rights Act,” Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.
1996), we, like the district court, shall consider both of Ghosh’s national origin
discrimination claims together.
To prevail, Ghosh must prove that any discrimination against her on her
employer’s part was intentional. Eiland v. Trinity Hosp., 150 F.3d 747, 751 (7th
Cir. 1998). “An employee may demonstrate her employer's intentional
discrimination by providing either direct or indirect evidence.” Id. Here, Ghosh
claims to have indirect evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973) outlines a burden shifting approach to proving intentional discrimination
through indirect evidence. First, a plaintiff must establish a prima facie case of
discrimination based on her membership in a protected class. Stewart v.
Henderson, 207 F.3d 374, 376 (7th Cir. 2000). If such a prima facie case is
established, then a presumption of discrimination will arise and the burden will
shift to the defendant to provide a legitimate, non discriminatory reason for the
challenged action. Id. “If defendant meets that burden, then the burden shifts back
to the plaintiff to establish that the reasons proffered by the defendant were
pretextual.” Id. The parties do not dispute that a prima facie case was
established,2 or that a legitimate, non-discriminatory reason was provided (in the
2
To establish a prima facie case of discrimination, a plaintiff must establish
that she was (1) a member of a protected class; (2) meeting her employer’s
(continued...)
No. 04-3501 Page 7
form of substantial evidence that Ghosh was not performing at expected levels).
Rather, the controversy here centers on whether the proffered reason was
pretextual.
A plaintiff may establish pretext either “by presenting direct evidence that
[her national origin] played a role in the challenged action or indirectly by creating a
genuine issue of material fact regarding the sincerity of the proffered reason for
that action.” Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir.
2000). Ghosh seizes upon a September 1998 conversation between her and Drs.
Kaufmann and Hall in challenging the sincerity of the defendants’ proffered reason.
In that conversation (prompted, in part, by patient complaints that Ghosh’s accent
made her difficult to understand), Kaufmann opined that “people are biased and
prejudiced against you if you’re not white, if you speak with an accent. Nurses will
probably not like you if you’re not white.” But these statements do not belie a
“prejudicial mind set” on the part of the decision maker, but rather observations of
how third parties might be prejudiced against her. Furthermore, in light of their
content and context, these isolated comments were unrelated to the employment
decision in question—a decision that would not occur until five months after this
conversation took place. See, e.g., Rush v. McDonald’s Corp., 966 F.2d 1104, 1116
(7th Cir. 1992) (“[I]n order to suffice as evidence of racial animus in support of a
claim of disparate treatment, the racial remarks must be relatively
contemporaneous to the termination of employment and must be ‘related to the
employment decision in question.’”); Huff v. UARCO, Inc., 122 F.3d 374, 385 (7th
Cir. 1997) (“[R]emarks unrelated to the employment decision in question may not
overcome summary judgment if they stand alone as evidence of the employer's
discriminatory intent.”).
Ghosh insists that the September 1998 conversation does not stand alone,
but rather there is additional evidence that, combined, suffice to establish a
reasonable inference of pretext. She cites inadmissible hearsay that the school
2
(...continued)
legitimate expectations; (3) suffered an adverse employment action; and (4) treated
less favorably by the employer than similarly situated individuals not in her
protected class. Oates v. Discovery Zone, 116 F.3d 1161, 1171 (7th Cir. 1997).
Ghosh satisfies prongs 1 and 3 easily (she is Indian and was terminated). The
district court found she also satisfied prongs 2 and 4, if just barely, because there
was limited evidence (albeit vastly outweighed by evidence of poor job performance)
that her performance had improved; and another similarly situated doctor outside
Ghosh’s protected class was allowed to finish the academic year before her
termination became effective. We will assume, without deciding, that Ghosh has
adduced enough evidence of job improvement to allow a reasonable inference of
meeting employer expectations, and has thus established a prima facie case.
No. 04-3501 Page 8
intended to replace her with another resident even before she arrived. She cites an
internal memo that says individuals who had no part in the decision making process
(other residents) mistreated Ghosh, mentions that Ghosh has a foreign medical
education (an obstacle that even Ghosh acknowledged), and concludes by expressing
the “need to stand behind her.” Finally, Ghosh asserts that Dr. Kaufmann gave a
false reason for her termination by informing the chair of the OB/GYN department
(Dr. PonJola Coney) that no one in the clinical faculty wanted to work with
Ghosh—a claim Ghosh claims to be patently untrue. But even if it is false, and
even if Dr. Kaufmann provided such a reason at variance with Ghosh’s official
termination letter, that would not support a reasonable inference that the
documented reasons were pretextual. Dr. Coney played no part in the decision to
terminate Ghosh. For those who did participate in that decision (the faculty, Dr.
Kaufmann, the Grievance Committee, and Dean Getto), the documented reasons for
her dismissal have gone unchanged.
Accordingly, we agree that Ghosh has failed to establish a reasonable
inference of pretext, and thus affirm the district court’s grant of summary judgment
in appellees’ favor on Ghosh’s Section 1981 and Title VII claims.
III. CONCLUSION
For the reasons stated above, we AFFIRM the dismissal of Ghosh’s due process
claim, and the grant of summary judgment in appellees’ favor on her Section 1981
and Title VII claims.