Derick Okwan v. Emory Healthcare Inc.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11467
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-02269-SDG
DERICK OKWAN,
Plaintiff – Appellant,
versus
EMORY HEALTHCARE INC.,
EMORY UNIVESITY, et al,
Defendant – Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 9, 2021)
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
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Between July 1, 2014, and March 17, 2016, Dr. Derick Okwan, a Black male
born in Ghana, was a resident in the oncology residency training program at Emory
University’s School of Medicine. Due to poor performance, Dr. Okwan was
dismissed from the program prior to the start of his third year. Dr. Okwan then
filed suit against Emory Healthcare, Inc., Emory University, and one of his
supervisors (Dr. Hui-Kuo Shu), asserting claims of race and national-origin
discrimination under Title VII against Emory University and claims of race
discrimination under § 1981 against all three defendants. 1
Dr. Okwan appeals the District Court’s grant of summary judgment in favor
of the defendants on two grounds. First, Dr. Okwan argues that the District Court
erred in considering certain statements from members of Emory’s Clinical
Competence Committee (the “CCC”) because those statements constitute
inadmissible hearsay. Second, Dr. Okwan argues that the Court erred in
concluding that he failed to show that his race or national origin was a motivating
factor in the CCC’s decision to dismiss him from Emory University’s Radiation
1
Dr. Okwan sued Emory University under Title VII and Emory University, Emory
Healthcare, Inc., and Dr. Hui-Kuo Shu under § 1981. We note that although we have never
expressly addressed the question of whether an individual can be held personally liable under
§1981, our holdings in past cases have suggested that such liability may exist. See Faraca v.
Clements, 506 F.2d 956, 959-60 (5th Cir. 1975) (affirming judgment holding director of Georgia
Retardation Center individually liable under § 1981); Burstein v. Emtel, Inc., 137 F. App’x 205,
208 (11th Cir. 2005) (finding that an individual who did not participate in a decision not to offer
an employment contract to the plaintiff-employee was not liable under § 1981 because he did not
participate in the decision).
2
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Oncology Residency Program. We disagree with Dr. Okwan on both points. On
the former, the Court correctly concluded that the relevant statements were not, in
fact, hearsay. Furthermore, Dr. Okwan failed to adequately brief this issue and
therefore is deemed to have abandoned his challenge to the Court’s ruling on this
issue. As to the latter point, the record makes clear that Dr. Okwan has provided
no evidence that his race or national origin was a motivating factor in the CCC’s
decision. Accordingly, we affirm.
I.
Between July 1, 2014, and March 17, 2016, Dr. Okwan was a resident in the
oncology residency training program at Emory University’s School of Medicine.
During his first year in the program, Dr. Okwan received several negative
comments on his evaluations from attending physicians regarding his poor medical
record keeping, mistakes in patient medical charts, poor patient medical
examinations, inattention to important plan details, poor communication, and
inaccurate contouring, 2 among other things. Dr. Okwan was also the subject of a
formal, two-page patient complaint submitted to the Emory Department of Patient
Relations. The complaint, which the patient titled “Angry and Afraid,” triggered
2
Contouring is the process of mapping or defining the borders of normal organs in
proximity to a cancerous tumor. Contouring and treatment plan accuracy is particularly
important for patients with brain cancer, cancer near the spinal cord, or for pediatric patients
because the treatment areas are so small. With such a small area to work within, there is little
room for error.
3
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an investigation by the Vice Chair of Radiation Oncology, the involvement of
multiple senior administration personnel, and a formal response letter to the
patient. 3 Due to both Dr. Okwan’s poor evaluations and the patient complaint, the
CCC issued Dr. Okwan an academic warning letter on September 3, 2015.4 In
response to the letter, Dr. Okwan acknowledged his performance deficiencies and
committed to improving.
Dr. Okwan continued to receive negative evaluations, however, from the
attending physicians monitoring his performance. The CCC therefore
unanimously voted to place him on academic probation on November 30, 2015. In
addition, Dr. Okwan accrued two more patient complaints between November 1,
2015, and December 31, 2015. Both patients complained that Dr. Okwan was
arrogant, condescending, dismissive of their concerns, and made presumptive
judgments about them based on their socioeconomic status. Both patients also
specifically requested that Dr. Okwan not be involved in their care.
3
Dr. Okwan told a patient and her family that her recent MRI images could not be found
because they had been uploaded to the wrong patient’s chart by radiology. In fact, Dr. Okwan
was looking at the wrong patient chart.
4
The CCC is composed of six to eight Emory University Radiation Oncology faculty
members who meet throughout the academic year to review the performance and progression of
each resident. The CCC has the responsibility of deciding which residents advance through the
program.
4
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Based on Dr. Okwan’s continued performance difficulties, on January 20,
2016, the CCC voted to keep Dr. Okwan on academic probation. 5 In a follow-up
letter to the CCC’s decision to keep Dr. Okwan on probation, the CCC informed
Dr. Okwan that the committee expected to see sustained improvement on all his
deficient performance areas and that the committee would conduct a re-assessment
of his performance once his next set of evaluations were available. Before those
evaluations came due, however, Dr. Okwan was the subject of a fourth patient
complaint.
The patient, who was complaining of back pain, was upset that Dr. Okwan
had (1) extended his hand for a handshake when his hand was still wet with
sanitizing foam and (2) asked her what would happen if he pounded her on her
back. The patient could not remember Dr. Okwan’s name and referred to him as
an “African man” and stated that he was “horrible” and claimed that he was going
to “beat her on the back.” In a later review of the incident, one of the members of
the CCC noted that she thought this complaint was not Dr. Okwan’s fault and that
patient bias had played a role.
On February 23, 2016, the CCC had a thorough discussion of Dr. Okwan’s
academic performance, including reviewing his evaluations and his performance
5
Dr. Okwan was the only resident in the program to be placed on probation in the second
year of residency.
5
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on rotations since being placed on probation. The CCC also considered recent
patient complaints, including the complaint in which Dr. Okwan was referred to as
an “African man.” It is undisputed that the CCC never discussed Dr. Okwan’s race
or national origin during any CCC meeting. The CCC ultimately concluded that
Dr. Okwan’s deficiencies in multiple core areas, including patient care, medical
knowledge, professionalism, and interpersonal and communication skills, meant
that he could not safely and independently manage radiation oncology patient care.
The CCC voted unanimously not to offer Dr. Okwan a contract for his third year in
the residency program. Dr. Okwan was informed of the CCC’s decision on March
17, 2016.
Dr. Okwan filed suit against Emory University, asserting claims of racial
and national origin discrimination in violation of Title VII, and against Emory
Healthcare, Inc., Emory University, and Dr. Hui-Kuo Shu, one of Dr. Okwan’s
supervising physicians, for racial discrimination in violation of 42 U.S.C. § 1981.6
The defendants answered Dr. Okwan’s complaint and following discovery moved
6
Dr. Okwan also originally asserted claims of race and national origin discrimination
under Title VI of the Civil Rights Act of 1964, disability discrimination under Title I of the
Americans with Disabilities Act (“ADA”), and race and national origin discrimination claims
under Title VII based on a theory of discriminatory placement on academic probation, all of
which were dismissed by the District Court prior to the motion for summary judgment. The
Court also dismissed Dr. Okwan’s claims of Title VII race and national-origin discrimination,
based on a theory of discriminatory termination, against Emory Healthcare. Dr. Okwan does not
challenge these dismissals on appeal. Dr. Okwan also conceded that his additional claims of
disability discrimination under the Rehabilitation Act and under Title III of the ADA could not
survive summary judgment.
6
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the District Court for summary judgment. They argued that the evidence
developed during discovery was insufficient to create a jury issue as to any of Dr.
Okwan’s claims. The United States Magistrate Judge assigned to the case entered
a Report and Recommendation (the “R&R”) recommending that the motion for
summary judgment be granted.
Dr. Okwan timely filed objections to the R&R. Dr. Okwan argued (1) that
the Magistrate should not have relied upon declarations submitted by members of
the CCC in ruling on the summary judgment motion because the declarations
contained inadmissible hearsay; (2) that the Magistrate erred in concluding that Dr.
Okwan failed to present sufficient evidence that race or national origin was a
motivating factor in the CCC’s decision not to renew his contract; and (3) that the
Magistrate Judge erred in concluding that another resident in the oncology
residency training program who had been placed on probation for a shorter time
period than Dr. Okwan, a Dr. Marchan, was not a valid comparator.
After careful consideration of the record, the District Court overruled Dr.
Okwan’s objections and adopted the R&R in its entirety. The Court also
concluded that the alleged hearsay statements in the faculty declarations were not
being offered for the truth of the matter asserted but rather to demonstrate the
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declarants’ state of mind. As such, the statements did not constitute hearsay and
were admissible.7
Dr. Okwan now appeals the District Court’s grant of summary judgment and
raises the same three objections he raised in opposition to the R&R.
II.
We review the evidentiary rulings of a district court for a clear abuse of
discretion. See, e.g., United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir.
2002); United States v. Veltmann, 6 F.3d 1483, 1491 (11th Cir. 1993)
(“Evidentiary rulings challenged on appeal will not be overturned absent clear
abuse of discretion.”). We will only reverse if the district court’s ruling is
manifestly erroneous. General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S. Ct.
512, 517 (1997).
We review a district court’s grant of summary judgment de novo, construing
all facts and drawing all reasonable inferences in favor of the nonmoving party.
Craig v. Floyd Cnty., 643 F.3d 1306, 1309 (11th Cir. 2011). Summary judgment is
appropriate when, viewed in the light most favorable to the non-moving party, “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
7
The District Court agreed with the Magistrate, however, that even if the statements were
in fact hearsay, they would be admissible for summary judgment purposes because the declarants
could testify at trial. See Jones v. UPS Ground Freight, 683 1283, 1293-94 (11th Cir. 2012)
(noting that a district court can consider hearsay when passing on a motion for summary
judgment if the hearsay statement could be reduced to an admissible form at trial).
8
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with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).
Finally, “to obtain a reversal of a district court judgment based on multiple,
independent grounds, an appellant must convince us that every stated ground for
judgment against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014). If an appellant fails to challenge on appeal one of
the grounds on which the district court judgment is based, he is deemed to have
abandoned any challenge of that ground and the judgement is therefore affirmed.
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1306 (11th Cir. 2012).
III.
A.
On appeal, Dr. Okwan argues that the District Court erred in concluding that
the declarations by various Emory faculty members, declarations which included
statements made by other faculty members or patients, could be considered for the
purposes of summary judgment. Dr. Okwan argues that these out-of-court
statements constitute hearsay and points to the general rule prohibiting the
consideration of inadmissible hearsay on a motion for summary judgment.8
8
See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (noting that the general rule is
that hearsay cannot be considered on a motion for summary judgment). Although Dr. Okwan
acknowledges that a district court can consider hearsay when passing on a summary judgment
motion if that hearsay can be reduced to admissible form at trial, Dr. Okwan contends that the
9
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Dr. Okwan, however, completely fails to address the District Court’s
(proper) conclusion that the alleged hearsay statements were not offered for the
truth of the matter asserted and were instead offered to demonstrate the declarants’
state of mind. 9 Dr. Okwan has therefore abandoned any challenge on that ground.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2008) (An
appellant’s failure to plainly and prominently raise an issue on appeal by not
“devot[ing] a discrete, substantial portion of his argumentation to that issue”
abandons the issue). For this reason alone, then, the Court’s ruling on this issue
should be affirmed.
B.
Dr. Okwan argues that the District Court erred when it concluded that he
failed to present sufficient evidence of race or national origin discrimination under
a mixed-motive analysis. For the following reasons, we agree with the Court.
District Court erred in assuming that either the faculty members or the patients referenced in the
declarations would testify at trial.
9
In his R&R, the Magistrate accepted Dr. Okwan’s assertion that the statements within
the declarations were hearsay but found that the statements could be reduced to admissible form
at trial. The District Court found that the statements were not hearsay due to the state of mind
exception in Rule 803(3) of the Federal Rules of Evidence. We agree with the Court that the
out-of-court statements contained in the faculty declarations were not being offered for the truth
of the matter asserted and therefore did not constitute hearsay. The Emory faculty members who
provided declarations did so to explain why the members of the CCC concluded that Dr.
Okwan’s residency contract should not be renewed. That is, the declarations were offered to
show that the CCC’s decision was motivated by Dr. Okwan’s consistently poor performance in
his residency program, not racial or national origin bias.
10
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A plaintiff asserting a mixed-motive claim under Title VII and/or § 198110
must offer “evidence sufficient to convince a jury that: (1) the defendant took an
adverse employment action against the plaintiff; and (2) a protected characteristic
was a motivating factor for the defendant’s adverse employment action.” Id. at
1239 (internal quotation marks and alteration omitted, emphasis in original). It is
undisputed that the CCC’s decision not to renew Dr. Okwan’s residency agreement
for a third year constitutes an adverse employment action. Dr. Okwan’s claim,
therefore, turns on whether he has provided sufficient evidence that a protected
characteristic was a motivating factor in the CCC’s decision not to renew his
contract.
Dr. Okwan offers only two pieces of evidence to establish that his race
and/or national origin were a motivating factor in the CCC’s decision not to renew
his contract: (1) the fourth patient complaint that described Dr. Okwan as an
“African man” and (2) the fact that another resident, Dr. Marchan, was placed on
academic probation for a longer time period than Dr. Okwan. We address each
piece of evidence in turn.
1.
10
“Discrimination claims brought under Title VII . . . are typically categorized as either
mixed-motive or single-motive claims.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235
(11th Cir. 2016). Title VII and § 1981 have the same requirements of proof and use the same
analytical framework. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
11
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Dr. Okwan argues that “discriminatory input taints a board’s decision” and
that because the CCC considered the allegedly racist complaint when making its
decision, “that alone is sufficient to show that [Dr. Okwan’s] status as a member of
a protected class played a role in [the CCC’s] decision” not to renew Dr. Okwan’s
contract. Dr. Okwan also argues that the timing of the complaint and the CCC’s
subsequent decision not to renew his contract demonstrates that the complaint was
a “decisive factor” in the CCC’s decision. The CCC, Dr. Okwan argues, had
planned to wait until after receipt of Dr. Okwan’s January and February 2016
evaluations before reaching a decision regarding his contract; after receiving the
complaint, Dr. Okwan asserts, the committee chose to meet earlier.
In Quigg, we held that an employee challenging a decision made by a board
can succeed on a mixed-motive claim if she shows that “discriminatory input”
factored into the board’s decision-making process. Quigg v. Thomas Cnty. Sch.
Dist., 814 F.3d 1227, 1241 (11th Cir. 2016). Because the plaintiff in Quigg was
able to show that several members of the school board had made statements
indicating sex or gender-bias factored into their decision not to renew her contract,
we held that the plaintiff had presented sufficient evidence for a reasonable jury to
conclude that her sex or gender was a motivating factor in the board’s decision-
making process. Id. at 1241. Key to our analysis in Quigg, however, was the fact
that the plaintiff was able to show that numerous board members had made
12
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statements suggesting sex or gender-bias was a motivating factor in their votes
against her continued employment. Id. Here, in contrast, Okwan asks us to hold
that an allegedly racist statement by a patient who had no role in the CCC’s
decision-making process should be imputed to the CCC simply because the CCC
viewed that statement. This we will not do. Even assuming that the patient
complaint was racially motivated, this would only show that the patient expressed
racial or national origin bias towards Dr. Okwan. It is undisputed that Dr.
Okwan’s race and national origin were not discussed during any CCC meeting.
Likewise, there is no evidence that the CCC members made statements concerning
Dr. Okwan’s race or national origin outside of any CCC meetings.
The timing of the complaint does not affect our analysis. It may be that the
CCC chose to meet because Dr. Okwan had received his fourth patient complaint
in two years. 11 Even if this were true, however, the fact that a fourth complaint
prompted the committee to meet earlier than expected does not support the
inference that the CCC members’ decision-making process thereby became
“tainted” by the patient complaint.12 Dr. Okwan does not dispute that in January
and February of 2016 – a time period during which he knew his future as a resident
11
The record is silent as to why the CCC chose to meet before receiving a further set of
evaluations. The fourth patient complaint was made on February 4, 2016. The CCC voted not to
renew Dr. Okwan’s contract on February 23, 2016.
12
That is, even if the complaint was a motivating factor in the CCC’s decision to meet in
February, there is no evidence that allegedly racist statements within it were a motivating factor
in the CCC’s decision not to renew Dr. Okwan’s contract.
13
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depended on a substantial improvement in performance – he made late and
inaccurate patient consults, overlooked key elements of patient assessments that
caused serious errors in patient treatment plans, submitted treatment plans with
incorrect contouring of tumors and healthy organs and tissues, and failed to grasp
basic radiation field concepts. 13 Dr. Okwan does not dispute that the CCC engaged
in a thorough and detailed discussion of his performance during the entire
academic year, a process that entailed reviewing all his evaluations and his
performance on his rotations since being placed on probation. Finally, Dr. Okwan
does not deny that the CCC discussed specific and repeated examples of his poor
performance, including incorrect and incomplete patient medical record
documentation, inattention to detail in patient care, fundamental errors in
contouring and prescription writing, errors in patient treatment plans, missing key
clinical issues in caring for patients, dishonesty, and lack of empathy and rapport
with patients.
In sum, although there is a great deal of evidence suggesting that Dr.
Okwan’s performance in the oncology residency program was deficient across
multiple core areas, including patient care and medical knowledge, Dr. Okwan has
13
Dr. Okwan notes only that his supervisor evaluated him highly in several (other) areas
of performance and that he addressed and corrected deficiencies.
14
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simply provided no evidence that race or national origin played any role
whatsoever in the CCC’s decision not to renew his contract for a third year.
2.
The second piece of evidence that Dr. Okwan presents in support of his
claims is the fact that another resident, Dr. Marchan, was placed on probation for a
shorter time period than Dr. Okwan. Dr. Okwan argues that the District Court
erred in concluding that Dr. Marchan was not similarly situated and therefore was
not a valid comparator.
When comparing a plaintiff’s treatment to a non-protected employee, the
plaintiff and the employee he identifies as a comparator must be “similarly situated
in all material respects.” See Lewis v. City of Union City, 918 F.3d 1213, 1238–39
(11th Cir. 2019) (en banc). “Similarly situated in all material respects” means that
the comparator will have “engaged in the same basic conduct (or misconduct) as
the plaintiff, . . . will have been subject to the same employment policy, guideline,
or rule as the plaintiff, . . . will ordinarily . . . have been under the jurisdiction of
the same supervisor as the plaintiff, and . . . will share the plaintiff’s employment
or disciplinary history[.]” Id.Dr. Okwan and Dr. Marchan are simply not “similarly situated in all
material respects.” Dr. Okwan’s performance issues began early in the residency
program, resulting in an academic warning letter and then probation in his second
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year. Dr. Marchan, in contrast, was not placed on probation until his third year.
Dr. Okwan’s probation period was extended because he continued to perform at
substandard levels. Dr. Marchan, on the other hand, exhibited sufficient
improvement to be removed from probation (although his performance later
declined again). Dr. Okwan was the subject of four different patient complaints
within his first two years of the program. Dr. Marchan, in contrast, received no
patient complaints. Indeed, the evidence shows that Dr. Okwan was unique in this
respect: he is the only resident in the program who was the subject of multiple
patient complaints during his or her residency. Finally, it undisputed that the CCC
committees that evaluated Dr. Okwan and Dr. Marchan were not identical. Each
committee consisted of six individuals, only four of whom served on both. Each
committee featured two individuals (Dr. Dhabaan and Dr. Khan for Dr. Okwan,
Dr. Diaz and Dr. Fox for Dr. Marchan) who were not members of the other.
For all these reasons, then, the circumstances giving rise to Dr. Okwan’s
probation and termination are simply too different, even when drawn in the light
most favorable to Dr. Okwan, from those giving rise to Dr. Marchan’s to allow an
inference of discrimination. Dr. Marchan is not a valid comparator such that his
longer probationary period can be used as evidence of the CCC’s bias.
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IV.
For the foregoing reasons, we affirm the District Court’s grant of summary
judgment in favor of Emory Healthcare, Inc., Emory University, and Dr. Hui K.
Shu.
AFFIRMED.
17