Hazard-Chaney v. Optima Healthcare

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to lst Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1148
LORRAINE HAZARD-CHANEY, M.D.,
Plaintiff, Appellant,
v.
OPTIMA HEALTHCARE; OPTIMA HEALTH, INC.;
CATHOLIC MEDICAL CENTER PHYSICIAN PRACTICE ASSOCIATES;
KEITH A. LAMMERS, M.D.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ruth A. Hall with whom Union Law Offices, LLC, was on brief
for appellant.
Steven M. Gordon with whom Arpiar G. Saunders, Jr., Shaheen &
Gordon, Elaine Michaud, and Devine, Millimet & Branch, PA, were on
brief for appellees.
January 24, 2003
Per Curiam. Appellant Lorraine Hazard-Chaney, a medical
doctor, claims that, in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to e-17, she was set up to fail by
her employers and ultimately offered only a probationary renewal of
her contract because she is African-American.1 The district court
granted summary judgment to her employers,2 concluding that
appellant failed to adduce sufficient evidence to counter
appellees' non-discriminatory explanation for their actions.
Hazard-Chaney v. Optima Healthcare, No. Civ. 00-355-B, 2001 WL
1636433 (Dec. 18, 2001). We affirm, adding only a few thoughts to
the district court's thorough opinion.
(1) Appellant maintains that the district court erred in
considering unauthenticated documents submitted by appellees. Two
properly considered documents, however, suffice to support the
court's determination that appellees set forth legitimate, non-
discriminatory reasons for offering appellant a probationary
contract instead of renewing her original agreement. The March 10,
1
Appellant also filed state law claims of wrongful
termination, defamation and intentional infliction of emotional
distress, some of which were dismissed in an order that has not
been appealed. In its summary judgment ruling, the district court
declined to exercise supplemental jurisdiction over the residual
state law claims.
2
The defendants-appellees are Optima Healthcare, Optima
Health, Inc., Catholic Medical Center Physician Practice Associates
("CMC PPA") and Dr. Keith A. Lammers, vice president and medical
director of CMC PPA. In its earlier, unappealed order, the
district court dismissed the Title VII claim against Dr. Lammers,
leaving only state law claims pending against him.
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1999 letter to appellant from Dr. Keith Lammers, appellant's
supervisor, which was submitted to the court by both parties,
identifies the performance issues cited by appellees as the reason
for their actions. In addition, Dr. Lammers stated in a properly
submitted affidavit that appellant had finished last out of thirty-
two physicians in nine of ten categories in a patient satisfaction
survey. He further reported that he used these results in his
review of appellant, as he did with all physicians he supervised,
and in developing the conditions of the probationary contract he
offered to her. We note, moreover, that the district court did not
consider the two documents to which appellant specifically
objected, and her objections to other materials are deemed waived
because they were not raised below. See Utica Mut. Ins. Co. v.
Weathermark Invs., Inc., 292 F.3d 77, 81 (lst Cir. 2002); Perez v.
Volvo Car Corp., 247 F.3d 303, 314-15 (lst Cir. 2001). Although
appellant quibbles with the statistical validity of the patient
survey, it is pure speculation to suggest that any imperfections
negate the overall message of its results – that appellant fared
poorly compared with her colleagues.
(2) We acknowledge that the record – including letters of
support from patients and an office staff member, as well as
appellant's explanations for some of the circumstances cited by
appellees as examples of poor performance – reflects a dispute
about the quality of appellant's work. Indeed, appellant
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persuasively argues that some of her difficulties were directly
traceable to inadequate support from management. Nonetheless, the
relevant question is not whether the employers' concerns about
appellant's performance were warranted, but whether they were
genuine and thus not a pretext for unlawful discrimination. As the
district court recounted, the evidence of record is inadequate to
permit a factfinder to conclude that racial discrimination, rather
than quality concerns, was the true basis for the employer's
decision.
The only evidence with racial content was a statement reported
by appellant from an Optima recruiter who was about to leave the
company; the district court viewed the comment as inadmissible
hearsay and declined to consider it. Appellant testified in her
deposition as follows regarding the statement:
He came to tell me that he was leaving and that I should
watch my back; that Dr. Lammers always referred to me as
Afro – "African-American" or "black," in any of the
management meetings, reminding people; the implication
being that there was some sort of a – I don't know how
you would refer to it, maybe low expectation as to
productivity.
Appellant points to several other incidents that she views as
racially motivated, including Dr. Lammers' avoiding her and her
children at a reception welcoming new physicians, but nothing in
the circumstances of those episodes points to race as the
underlying motivation. Although appellant's practice may have been
neglected in certain respects by Optima, the record does not permit
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an inference that this treatment occurred because she was African-
American rather than – as the company asserted – because she was a
solo practitioner with comparatively low patient numbers. In the
face of a downward progression in patient satisfaction with her
care, including in performance areas unrelated to the management
issues, the recruiter's isolated, unsubstantiated remark – were it
to be considered as non-hearsay, and even when combined with the
several racially neutral incidents she cites – is insufficient to
invigorate her claim of pretext.
(3) In an effort to cloak facially race-neutral actions with
discriminatory significance, appellant relies heavily on a case not
cited to the district court, Thomas v. Eastman Kodak Co., 183 F.3d
38 (lst Cir. 1999). Thomas recognized that there are contexts in
which evidence sufficient to defeat summary judgment can include
actions indicative of discrimination that stem from "unthinking
stereotypes or bias." Id. at 58. Appellant would have us consider
defendants' catalogue of complaints and neglect of her practice as
examples.
But this case differs in significant respects from Thomas,
where the plaintiff alleged that she was terminated as a result of
"an evaluation procedure that was tainted by racial bias." Id. at
65. There, the plaintiff asserted bias in subjective performance
reviews by her superior, and she further presented "'evidence from
which the trier of fact reasonably could conclude that [her]
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abilities and qualifications were equal or superior to employees
who were retained.'" Id. (citation omitted). That is not the case
here, where appellees rely on evaluations conducted by third
parties in which appellant was ranked virtually at the bottom of
her colleagues as well as complaints about her performance lodged
by patients and co-workers. Moreover, appellant has not presented
evidence that would permit the conclusion that similarly situated
non-minority employees were evaluated less harshly. Finally,
appellant's status as a contract employee whose first term was
expiring further distinguishes her situation from that of the
plaintiff in Thomas, who was a long-time employee laid off as a
result of poor ratings by a new supervisor after many years of
highly rated service. On the record before us, attributing the
offer of a probationary contract to racial discrimination would be
"'unsupported speculation.'" Id. (citation omitted).
(4) Dr. Lammers' overnight change in approach from a
termination, through non-renewal of appellant's contract, to an
offer of a probationary contract is not probative of racial
motivation.3 His original statement that he was unable to continue
her employment "[w]ith the current undefined future of CMC PPA" is
not inconsistent with concerns about her performance, though the
statement was obviously untrue. Even if Dr. Lammers was
3
Like the district court, we assume for purposes of our
discussion that the offer of a probationary contract renewal was an
adverse employment action within the meaning of Title VII.
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deliberately evasive in the first letter, however, that particular
untruth, in the context of this record, would not allow a
factfinder to conclude that there was racial animus.
In sum, appellant failed to proffer evidence that would permit
a jury to conclude that her employers' asserted justification for
offering only a probationary contract was a pretext for race
discrimination. Consequently, the district court properly entered
summary judgment for defendants.
Affirmed.
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