Nasrin Fatemi v. Charles White

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2536
___________________________
Nasrin Fatemi
lllllllllllllllllllll Plaintiff - Appellant
v.
Charles White, in his Official Capacity; James Clardy, in his official and personal
capacity; Debra Fiser, in her official and personal capacity; John Day, individually
and in his official capacity; University of Arkansas System; Hosea Long, in his
Official Capacity
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: September 8, 2014
Filed: January 6, 2015
____________
Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
____________
SMITH, Circuit Judge.
The University of Arkansas for Medical Sciences (UAMS) terminated Dr.
Nasrin Fatemi, a female second-year neurosurgery resident, from its program. Dr.
Fatemi sued UAMS and several of its employees (collectively, "defendants"),
asserting, among other things, gender discrimination. The district court1 granted
summary judgment in favor of the defendants, and Dr. Fatemi appeals. We affirm.
I. Background2
The UAMS College of Medicine sponsors nine core residency programs,
including neurosurgery. Each program is housed in a clinical department under the
direction of a program director and the department chair. Generally, a neurosurgery
residency includes seven years of post-medical school education. The first year of a
neurosurgery residency is designated the "Post-Graduate Year 1" (PGY-1), and the
final year is designated the PGY-7.
Dr. T. Glenn Pait became the Interim Chair of the UAMS Department of
Neurosurgery ("Department") in late 2009, and Dr. Dennis McDonnell became the
Interim Residency Program Director in late 2009. Dr. Pait and Dr. McDonnell served
in their respective roles until Dr. John D. Day began his tenure as Department Chair
and Residency Program Director in April 2010.
In January 2010, Dr. Pait hired Dr. Fatemi as a PGY-2 and Dr. Monir Tabbosha
as a PGY-3. Both started working at UAMS on January 22, 2010. Dr. Fatemi was the
only female neurosurgery resident during her tenure at UAMS. According to Dr.
Fatemi, on her first day of training, Dr. Igor DeCastro, the Chief Resident, informed
1
The Honorable D. Price Marshall, United States District Judge for the Eastern
District of Arkansas.
2
As the district court noted, "[t]he summary-judgment papers [in this case] are
voluminous—hundreds and hundreds of pages of record materials and briefs." Like
the district court, we have studied the entire record in crafting the factual background.
Where the parties dispute certain facts or recount events differently, we have so
indicated. As Federal Rule of Civil Procedure 56 sets forth, only a "genuine dispute
as to any material fact" precludes summary judgment. Fed. R. Civ. P. 56(a) (emphasis
added). We will address whether the factual disputes are "material" in Part II, infra.
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Dr. Fatemi that she "should follow Dr. [Gautam] Gandhi, a first year intern around,
and that was how [she] would be trained." Both Dr. Fatemi and Dr. Gandhi were
considered junior-level residents. Dr. Gandhi, a PGY-1, had been with the
Department since July 2009 and had attended both graduate school and medical
school at UAMS; thus, he was very familiar with the campus and computer systems.
Although Dr. Gandhi does not recall anybody at UAMS specifically telling him to aid
Dr. Fatemi in her transition, he testified that his perceived "role . . . was to help her
transition" by showing her around the campus. Dr. Gandhi also testified that, like Dr.
Fatemi, he also oriented Dr. Tabbosha.
According to Dr. Pait, complaints about Dr. Fatemi occurred within the first
month of her participation in the program. Dr. Fatemi testified that she "had a feeling"
from the first week in February that Dr. Pait did not want her in the program. In any
event, the undisputed facts show a series of problems arising between Dr. Fatemi and
other neurological program residents and coworkers at the inception of her tenure at
UAMS. First, Dr. Gandhi testified that very soon after Dr. Fatemi started at UAMS
an incident occurred in which she began "yelling to the point where she was just
screaming at the top of her head in the emergency room directly at [Dr. Gandhi]." Dr.
Gandhi was frightened and embarrassed by the situation. Dr. Fatemi admits the
incident, but she denies that she screamed.
Second, Dr. Fatemi had problems with Dr. DeCastro. Dr. Fatemi stated that
"[w]ithin a week or so of being in the program" she informed Dr. DeCastro about her
concern of gender discrimination. According to Dr. Fatemi, "[a] week or so after" her
arrival, Dr. DeCastro directed her to "accompany him to the operating room to put in
a 'shunt.'" Dr. DeCastro advised Dr. Gandhi to do the procedure, while Dr. Fatemi
observed. After the surgery, Dr. Fatemi told Dr. DeCastro that she "was concerned
that as a woman that [she] was not going to be allowed to do surgeries and that [she]
would be taken out of the program because [she] had not gained the requisite
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experience." She asked that she be "treated in accordance with [her] rank and position
within the program and not as a brand new doctor."
After Dr. Fatemi complained to Dr. DeCastro about gender discrimination, Dr.
DeCastro insisted that a third party be present when he spoke with Dr. Fatemi. He
told Dr. Fatemi that Dr. Pait and UAMS's attorney directed him to have the third-
party witness present. Dr. Fatemi claims that "Dr. DeCastro made sure that the other
residents would be wary of me." Dr. DeCastro testified that he did not tell the other
residents that Dr. Fatemi claimed gender discrimination; instead, he told them only
to have a third party present for meetings with Dr. Fatemi.
Dr. DeCastro recounted an incident in which he instructed Dr. Fatemi that it
was her day to go to the operating room (OR), but she failed to do so. According to
Dr. DeCastro, Dr. Baraa Al Hafez reported to Dr. DeCastro that Dr. Fatemi told Dr.
Al Hafez that Dr. DeCastro had instructed her to leave the OR. Dr. DeCastro
responded, "No, no, I told her the opposite, I told her today's the day she needs to go
to the OR. No, I told her to stay in the OR[;] I don't understand why she had to leave."
Dr. DeCastro testified that he was unable to trust Dr. Fatemi anymore after this
incident.
Third, in early February 2010 and again in late February 2010, Ashley
Lumpkin, Administrative Coordinator of Health Information Management at UAMS,
emailed Dr. Fatemi about her failure to comply with regulatory standards that require
a complete history and physical evaluation in the medical record prior to surgery or
within 24 hours of admission within the electronic medical record.3
3
Lumpkin sent a February 10, 2010 email directly to Dr. Fatemi and copied Dr.
Pait on the email. Lumpkin sent a February 27, 2010 email to Dr. Gandhi, advising
him that regulatory standards had not been satisfied. She copied Dr. Pait on that
email. Dr. Gandhi responded to the email (and copied Dr. Pait to his response),
requesting that Lumpkin send the email to Dr. Fatemi because "[s]he did the preop
-4-
Fourth, in his declaration, Dr. Pait maintains that in early February 2010,4 Dr.
Fatemi asked him to come to the emergency room to see a patient with an acute
subdural hematoma. Dr. Pait asserts that Dr. Fatemi should have consulted with the
patient's family and considered him a candidate for the OR. According to Dr. Pait,
when he arrived, Dr. Fatemi had not consulted with the patient's family or prepared
him for the OR. Dr. Pait contends that Dr. Fatemi told him that the patient was brain
dead but that Dr. Pait's physical examination of the patient did not support brain
death. Dr. Pait spoke with the patient's family, and they wanted everything done for
their loved one. Blood tests revealed that the patient needed Vitamin K, plasma, and
14,000 units of Factor VII, a clotting agent. Dr. Pait requested that the patient be
moved immediately to the OR. Dr. Pait began the surgery when the clotting agents
were administered. Dr. Pait testified that Dr. Fatemi, as a PGY-2, should have known
to assess the patient properly, consult with his family, and prepare him for the OR to
avoid wasting critical time. Dr. Fatemi did not stay for the operation; instead, she left
the OR.
Dr. Fatemi asserts that Dr. Pait's allegation that she erroneously diagnosed the
patient as being brain dead is untrue and unsupported by her own "Consult Note,"
which never uses that term.
Fifth, on February 20, 2010, Dr. McDonnell documented problems with Dr.
Fatemi's performance during surgery on a patient with a gunshot wound. Dr.
McDonnell stated that Dr. Fatemi was eager to perform the surgery but unfamiliar
for this patient."
4
According to Dr. Pait, the date of the incident in question was February 2,
2010. Dr. Fatemi claims that the date of the incident was February 8, 2010. Dr. Pait's
"Attending Note," Dr. Fatemi's "Consult Note," the "Operative Report," the record
of surgeries performed during the relevant period, and the February call schedule all
support a finding that the date was February 8, 2010. The date of the incident,
however, is not a material fact.
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with the basic skills required to do so. He concluded, "[T]his experience indicates to
me that Dr. Fatemi is very inexperienced and probably has not had any direct surgical
experience in performing cranial procedures."
When asked why he permitted Dr. Fatemi, a resident who had "only been in the
program for a couple weeks," to perform the surgery while he assisted, Dr.
McDonnell explained that "when an attending assists a resident, the resident's hands
have to be involved with doing the procedure, but the attending is there to make sure
that it's done safely. [Dr. McDonnell] had confidence that Dr. Fatemi would be able
to do the procedure with [him] being there to make sure it was done properly." Prior
to the surgery, Dr. McDonnell believed Dr. Fatemi to be "competent" and "thought
it would be safe for her to do [the surgery], and she would benefit from the
experience." According to Dr. McDonnell, he would not have permitted Dr. Fatemi
to perform the surgery unless he thought she could competently perform it.
According to Dr. McDonnell, as well as other faculty members, this craniotomy
was a procedure that should have been familiar to a resident at Dr. Fatemi's level. Dr.
McDonnell testified that while he does not normally write a memorandum
documenting his experience with a resident, he "thought it would be important to
document this [experience]." Dr. McDonnell stated that "Dr. Fatemi was not
performing at the level that we expected that she would be performing. And so we
needed to document that." Dr. McDonnell "considered [Dr. Fatemi] inexperienced
and at the basic beginner level." Although Dr. McDonnell wanted Dr. Fatemi to
succeed, he felt it necessary to document the surgical experience because she was
"performing at a level that is unacceptable." In summary, Dr. McDonnell's testimony
reflects his belief that Dr. Fatemi was not performing at the PGY-2 level. Dr. Fatemi
counters that Dr. McDonnell's "documentation" of purported problems with her
performance is actually UAMS's attempt "to create documentation to justify her
termination—because she had complained of gender discrimination."
-6-
On February 23, 2010, Dr. McDonnell; Dr. Pait; and Amy Keeland, the
Department's Residency Program Coordinator and Executive Assistant to the Chair,
met with Dr. Fatemi. Dr. Pait's written record of the February 23, 2010 meeting
provides as follows:
Dennis McDonnell, MD, Amy Keeland and I (T. Glenn Pait, MD) met
with Dr. Nasrin Fatemi on 23 February 2010. We asked her if there was
anything that we could do to help her, as she has completed
approximately a month of training at UAMS. She has received the
Resident Curriculum Guidelines for Neurosurgery. We asked her how
the transition was coming and how she was adapting. She has some
concerns in regards to how things are done here, as compared to her
previous environment. She expressed her concern on several topics. She
also expressed concerns about "not being welcomed here" and
mentioned topics of concerns: rounds in the morning, interactions with
residents. She had an opportunity to discuss each of these items in-
depth.
Again, we discussed with her growth, development and requirements for
her Neurosurgical training at UAMS. We offered support and any
guidance she may need. To address her concerns in regards to
interactions and "not being welcomed[,"] we will investigate this issue
with her colleagues/fellow residents. She had an opportunity to discuss
issues, ask questions, and her questions were answered.
At her deposition, Dr. Fatemi reviewed Dr. Pait's written record of the February
23, 2010 meeting and agreed that it is accurate, except she testified that (1) Keeland
took notes, and (2) Dr. Fatemi believed that the meeting was disciplinary because no
other residents were called to a meeting with Dr. Pait. She also asserts that she "told
them that [she] felt there was a gender issue at the institution."
The complaints against Dr. Fatemi did not cease following the meeting. Just
five days later, on February 28, 2010, Dr. Pait and Dr. DeCastro received an email
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from Dr. Nancy Maalouf, a female UAMS neurology PGY-2 resident, complaining
about Dr. Fatemi's unprofessional and disrespectful behavior the day prior. The email
provides:
I am one of the neurology residents who happened to be on call
yesterday. I received a call from Dr. Nasrin Fatemi who was asking
about a patient on the neurology service that neurosurgery was consulted
on. She started asking, with a "commanding tone[,"] who read the brain
imaging before consulting neurosurgery. After consulting with the
resident who has been taking care of the patient, I answered that Dr.
Keyrouz our attending ha[s] read it. She did not like the fact that we do
not have an official neuroradiology reading before consulting her. Then
she asked me, again with a "commanding tone[,"] to speak loud because
she could not hear me. So I raised my voice and asked her whether she
had any other questions for me. At that time she got upset why I was
"shouting on her[."] She then asked me in a sarcastic way: "what's your
name?" as if she was talking to an inferior creature and when I answered
she hung up on me!!!
I usually don't take such incidents personal[ly,] but after I mentioned
this to some of the other neurology residents, I was told that many other
residents have complained about Dr. Fatemi['s] behavior during the past
month, especially that she hasn't been responding to consults and would
not even pass them on to the next resident on call.
I have never been impolite with other residents so I usually expect other
fellow residents to be respectful when they call. Dr. Fatemi['s] behavior
was rude and unprofessional[,] and I thought I should bring to your
attention this repetitive pattern in her behavior with other services.
Dr. Fatemi rejects the email's veracity. She denies raising her voice during the
incident and disputes Dr. Maalouf's contention that other residents had complained
about her behavior. She also denies hanging up on Dr. Maalouf. According to Dr.
Fatemi, no reports exist of any residents from any other services complaining about
their interaction with her. Dr. Fatemi maintains that Dr. Maalouf's report that Dr.
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Fatemi failed to respond to consults and to pass them on to other residents is
"absolutely untrue."
After Dr. Pait and Dr. McDonnell's meeting with Dr. Fatemi on February 23,
2010, in which she expressed concern about interactions with other residents, Dr.
McDonnell, Dr. Pait, and Keeland met with Dr. Gandhi on March 2, 2010, "to discuss
the function of the neurosurgical service and his interactions with Dr. Nasrin Fatemi."
Dr. Pait documented Dr. Gandhi's responses in a memorandum, which provides, in
relevant part:
[Dr. Gandhi] states that he has had a difficult time interacting with [Dr.
Fatemi]; in fact, he has not spoken to her in approximately 14 days on
the University neurosurgical service. He states that he attempted, upon
her arrival, to discuss with her various aspects of the service and
apparently was not well-received. He has great concerns and is
somewhat "frightened" about the interaction with her. The lack of
interaction and cooperation among residents on the neurosurgical
service is of great concern. He understood.
Also on March 2, 2010, Dr. McDonnell, Dr. Pait, and Keeland met with Dr.
Fatemi for a second time. According to Dr. Pait's memorandum, the meeting was to
address "not only [Dr. Fatemi's] interactions with residents on the Neurosurgical
services; but, other services." The memorandum provides that Dr. Pait discussed Dr.
Maalouf's letter with Dr. Fatemi and the "great concern" over Dr. Fatemi's "inability
to interact well" with others. Dr. Pait recorded that Dr. Fatemi was "unable to give a
reason for this poor interaction." Dr. Pait's memorandum also states that Dr.
McDonnell, Dr. Pait, and Keeland suggested that Dr. Fatemi take advantage of
UAMS's Employee Assistance Program (EAP). According to the memorandum, Dr.
Fatemi responded that "the poor interactions are because she's a woman." Dr.
McDonnell, Dr. Pait, and Keeland then "discussed with [Dr. Fatemi that] such
behavior cannot continue because of concerns about patient care; i.e., not completing
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histories and physicals and not performing consultations when requested." They
informed Dr. Fatemi that continued problems would lead to Dr. Fatemi being put on
probation. According to Dr. Pait, he asked Dr. Fatemi "what we can do to help her,"
as a concern existed "about her being 'a good fit'" at UAMS. Dr. Fatemi responded
that "she has not had problems before and the services where she was on previous
occassions functioned differently." Dr. Pait noted in his memorandum that "this is the
second meeting concerning a behavioral issue" and that Dr. Fatemi "fully understands
the gravity of her current situation."
Dr. Fatemi disputes Dr. Pait's record of the March 2, 2010 meeting. She states
that Dr. Pait was untruthful when he said that Dr. Fatemi was unable to give a reason
for her poor interactions with other residents. She denies that Dr. Pait encouraged her
to seek help through the EAP. She also denies that Dr. Pait told her that if she were
put on probation, the probation notice would be in her record. She also denies being
asked what could be done to help her. Dr. Fatemi testified that she felt the March 2,
2010 meeting was in retaliation against her for alleged complaints regarding sex
discrimination.
On March 24, 2010, Dr. Pait received a telephone call from Dr. Tabbosha, the
Acting Chief Resident while Dr. DeCastro was on leave, stating that Dr. Fatemi was
assigned to surgery with Dr. M. Gazi Yasargil but had refused to go because Dr.
Yasargil did not like her. As a result, Dr. DeCastro, who was taking vacation days to
care for his sick father, was called in to assist Dr. Yasargil. Dr. Tabbosha sent Dr. Pait
a follow-up email recounting these events on March 25, 2010. Dr. Fatemi asserts that
Dr. Tabbosha's report was false and that no one ever asked her to assist Dr. Yasargil.
Thereafter, Dr. Pait assigned Dr. Fatemi to Arkansas Children's Hospital
(ACH). According to Dr. Pait, although neurosurgery residents typically rotate
through ACH in the more senior years of their residency, he "wanted to provide [Dr.]
Fatemi with an opportunity to work in a different environment." He believed that
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"ACH would maybe provide a better environment for her in the hope that at ACH
[Dr. Fatemi] would have a fresh start." Dr. Pait spoke with Dr. Mark O'Brien, Chief
of Pediatric Neurosurgery at ACH, and explained this to him. Dr. Fatemi asserts that
she found out on March 29, 2010, that she was being assigned to ACH by looking at
the April schedule. According to Dr. Fatemi, Dr. Pait did not tell her why he assigned
her to ACH.
Dr. O'Brien testified that he spoke to Dr. Fatemi when she started at ACH.
According to Dr. O'Brien he "told her . . . that [he] knew about some difficulties that
went on at the university and that [he] considered that she would start with a clean
slate at Children's, that [he] would not let that continue down here, down at
Children's." Dr. Fatemi denies that any conversation occurred with Dr. O'Brien in
which he expressed that she would begin with a clean slate.
On April 2, 2010, within days of Dr. Fatemi's start at ACH, Dr. O'Brien
received a phone call and follow-up email from Julie Holmes, Team Leader on the 4B
Adolescent Unit at ACH, regarding an incident where Dr. Fatemi was "arguing rather
loudly with somebody on her cell phone" at the nurses' station. Holmes's email stated
that Dr. Fatemi's "tone was angry and loud—she was telling the other party that
someone was a liar" and advised that Dr. Fatemi "needs to become aware of the
behavioral standards at ACH so that she will be well received in the future." Holmes
testified that she had never met Dr. Fatemi before and had never, in 28 years as a
nurse, lodged a similar complaint, but she felt the incident was so inappropriate that
she was compelled to report it. Dr. Fatemi denies that she was yelling during this
incident. However, she admits that after the call, a nurse asked her if she was okay
and whether she wanted to sit down.
In addition to Holmes's report, Tara Johnson, a Registered Nurse (RN) at ACH,
who did not know Dr. Fatemi prior to Dr. Fatemi's arrival at ACH, also complained
about Dr. Fatemi. On April 2, 2010, Johnson wrote an email to Dr. O'Brien reporting
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that Dr. Fatemi had breached a protocol that could have had serious health
ramifications for an ACH patient. Johnson reported that she saw Dr. Fatemi enter the
room of a patient suffering from a serious infection. Because of the severity of the
infection, the room was clearly marked for infection-control purposes, and the patient
was in isolation. Dr. Fatemi entered the room to obtain a cerebral spinal fluid
specimen and, thus, should have taken standard precautions, such as washing, putting
a gown and gloves on, drawing the specimen, removing her gloves and gown, and
washing again before exiting the room. Instead, Dr. Fatemi entered the room, exited
without doing the draw, worked on charts for at least 15 minutes, re-entered the
patient's room with the same gloves, obtained the specimen, went back to the nurses'
station, and wrote on another chart while wearing the original gloves. Johnson
testified that
Dr. Fatemi's procedures were so egregious in my eyes that I wrote Dr.
O'Brien regarding the fact that we had a severe infection control
problem on our hands. In all my eight years as a nurse at ACH, I have
only written one other note or e-mail of this variety regarding a resident
physician's medical treatment of a patient.
Fatemi denies these allegations.
Dr. O'Brien confronted Dr. Fatemi while she was still at ACH and testified that
Dr. Fatemi acted as if she did nothing wrong, was in denial, and was projecting blame
onto others. He forwarded the emails of Holmes and Johnson to Dr. Pait the same day
with a cover letter expressing his concern about the issues raised. Dr. O'Brien
requested that Dr. Fatemi be reassigned to UAMS and asked that she not return for
a rotation at ACH. Dr. Fatemi received notification on April 3, 2010, that she was not
to return to ACH.
On April 1, 2010, while Dr. Fatemi was at ACH, Dr. Day had begun his tenure
as the new Department Chair. Dr. Pait was aware that Dr. Day was reviewing the
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residents' personnel files. Dr. Day testified that, shortly after his arrival at UAMS, he
learned that Dr. Fatemi "had accumulated a number of complaints in her personnel
file," the most recent of which was Dr. O'Brien's complaint about "Dr. Fatemi's
disruptive and unprofessional behavior and from Dr. Fatemi's patient[-]safety and
infection[-]control violation."5
Dr. Day testified that "[p]rior to Dr. O'Brien's complaint, Dr. Fatemi had only
been in the program for two months, yet she had had trouble in both her interpersonal
relationships with other residents and clinical staff at UAMS and ACH and her
technical skills in the operating room." Dr. Day expressed concern "because [he] had
never seen a resident file with so many complaints, much less a file with such an
accumulation of complaints within two months." According to Dr. Day, he spoke with
Dr. Pait and Dr. McDonnell about Dr. Fatemi's lack of performance and behavioral
issues.6 He testified that they were concerned about Dr. Fatemi's ability to
successfully complete the residency program. Thereafter, Dr. Day conferred with Dr.
James Clardy, the Associate Dean for Graduate Medical Education (GME), about
disciplinary options and appropriate procedure. Pursuant to UAMS policy, Dr. Clardy
5
In addition to Dr. O'Brien's complaint, the other complaints that Dr. Day
referenced are (1) Lumpkin's emails to Dr. Fatemi about her failure to comply with
regulatory standards, (2) Dr. McDonnell's documented problems with Dr. Fatemi's
performance during surgery on a patient with a gunshot wound, (3) Dr. Maalouf's
complaint about Dr. Fatemi's unprofessional and disrespectful behavior during a
patient consult, and (4) Dr. Tabbosha's email to Dr. Pait regarding Dr. Fatemi's refusal
to assist Dr. Yasargil in a surgery.
6
Dr. Fatemi argues that Dr. Pait testified in his deposition that he does not
recall discussing the residents with Dr. Day when he took over. A review of Dr. Pait's
deposition reveals that Dr. Pait testified that he "d[id] not recall" whether he "s[at]
down with [Dr. Day] and g[a]ve him sort of a breakdown of [Dr. Pait's] opinion of
each of the residents." (Emphasis added.) Thus, Dr. Pait's deposition testimony does
not contradict Dr. Day's testimony that he discussed Dr. Fatemi, as opposed to "each
of the residents," with Dr. Pait and Dr. McDonnell.
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advised Dr. Day that he could put Dr. Fatemi on probation and give her an
opportunity to improve her deficiencies.
On April 6, 2010, Dr. Day and Dr. Pait met with Dr. Fatemi to place her on
probation. According to Dr. Day, he and Dr. Pait discussed with Dr. Fatemi the most
recent complaints from ACH and her failure to improve her behavior. Dr. Fatemi
denied the ACH incidents. Dr. Day, however, testified that he "had no reason to
disbelieve the ACH nurses or Dr. O'Brien." Dr. Day also testified that he and Dr. Pait
discussed with Dr. Fatemi "the multiple instances of her unprofessional interactions
with fellow UAMS residents both within and outside of the Neurosurgery
Department."7 Dr. Fatemi denies any responsibility or difficulties working with
others. According to Dr. Fatemi, she "was not permitted to explain [her] point of view
or even to respond to the accusations" during the meeting.
Dr. Day placed Dr. Fatemi on a six-week probation, informing "her that she
must correct her behavior, drastically improve her professionalism, and attend
counseling sessions with the [EAP]." Dr. Day also explained to Dr. Fatemi that at the
end of the probationary period, he would reevaluate her performance. Dr. Day
believed that Dr. Fatemi understood that if she failed to make sufficient progress or
if any new issues or incidents arose, Dr. Day would immediately dismiss her from the
UAMS neurosurgery program.
Dr. Day wrote to Dr. Fatemi on April 6, 2010, reiterating the content of the
meeting and confirming that she was on probation; the probationary letter states:
7
Dr. Fatemi objects to Dr. Day's use of the phrase "multiple instances" of
unprofessional conduct, arguing that she had issues with Dr. Tabbosha, Dr. Gandhi,
and Dr. Maalouf. But, in addition to those complaints against Dr. Fatemi, the
documentation in the record shows complaints by Lumpkin, Dr. McDonnell, and Dr.
O'Brien. See n.5, supra.
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This afternoon you met with myself, Dr. T. Glenn Pait, and Amy
Keeland to discuss your situation in our neurosurgical residency
program. As we indicated to you, there have been multiple complaints
regarding your behavior and professionalism both at UAMS and [ACH]
from multiple physicians and staff. We discussed with you the specifics
of these complaints and that we consider these behaviors to be
inconsistent with the standards of our program. At this point you have
failed to meet the behavioral standards that are expected in order to
adequately function on the neurosurgery service. We also discussed
incidents involving you that could have directly affected patient care and
safety. Actions along these lines cannot be tolerated.
We have placed you on probation at this time and will reevaluate your
progress with remedial counseling that was mandated in five weeks
time. If you have not made sufficient progress with these behavioral and
professionalism issues or if any new issues or incidents arise in the
meantime, then I will move to dismiss you immediately from the
neurosurgical residency program here at UAMS.
It is regrettable that this step has been taken but your actions have left
us little choice. Our primary concern is for the safety and well-being of
our patients. Unprofessional conduct is not only a behavioral issue but
also a patient safety issue and we therefore take this very seriously.
On April 9, 2010, Dr. Day emailed Dr. Clardy to advise him that he had placed
Dr. Fatemi on probation. He advised Dr. Clardy that he wanted to hold Dr. Fatemi's
contract for the following year so that Dr. Day would have the option of not renewing
it. Dr. Clardy responded that a consult with legal counsel was necessary "if we get
close to letting her go." He instructed Dr. Day to "closely follow the policy" and
stated that Dr. Day's "judgment will not be questioned, but the due process could be
in an appeal process unless we go by the policy. Then you get stuck with a resident
that you tried to let go and can't." Dr. Clardy offered to help Dr. Day with the process,
as "it is time effective to stay out of trouble."
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On Saturday, April 10, 2010, Dr. Debra Fiser, Dean of the UAMS College of
Medicine, received an email from Dr. Fatemi stating that, as the only female resident
in the UAMS neurosurgery program, she felt she was being isolated, treated unfairly,
and harassed and that she did not feel safe. Dr. Fiser responded to the email within
an hour of receiving it and told Dr. Fatemi that she needed more information. Because
Dr. Fiser was out of town at the time, she instructed Dr. Clardy to contact Dr. Fatemi
to follow up on her complaints. From the email communication that continued over
the next several days, Dr. Fiser understood that Dr. Clardy met with Dr. Fatemi and
followed up on her complaints by contacting the Department. Dr. Fiser trusted Dr.
Clardy, one of her designees as an Associate Dean, to investigate Dr. Fatemi's
complaints and to keep her informed of his progress and the results of his
investigation.
Dr. Clardy also received Dr. Fatemi's email of April 10, 2010. Upon Dr. Fiser's
instruction, Dr. Clardy emailed Dr. Fatemi to schedule a time for them to meet and
discuss her complaints. Dr. Clardy and Dr. Fatemi met on Monday, April 12, 2010.
Dr. Clardy took handwritten notes outlining Dr. Fatemi's complaints. Dr. Clardy
testified that he had difficulty "get[ting] in a word." And, he stated that he "was struck
by how she did not seem to be interested in improving relations with her fellow
residents or the faculty." According to Dr. Clardy, Dr. Fatemi "gave no indication that
she needed or was willing to change any behaviors. She wanted [Dr. Clardy] to
investigate what was wrong with all of the individuals who complained about her."
Dr. Fatemi recalls being "very distraught" and "very upset and emotional"
during the meeting in light of her probation placement just days prior to the meeting.
She confirmed that "Dr. Clardy hardly said anything during the meeting" and stated
that he "appeared to be unfamiliar with the issues and background."
After the meeting, Dr. Fatemi forwarded Dr. Clardy a copy of her probation
letter. According to Dr. Clardy, Dr. Fatemi asked him to keep confidential their
-16-
conversation and her complaints. Dr. Clardy testified that, in response, he told Dr.
Fatemi that he would not be able to help her unless he could speak with the
Department to ensure that GME policies are followed. His objective was to make sure
that Dr. Fatemi received due process and that the conditions of her probation were
clear.
According to Dr. Clardy, he met with members of the Department in small
groups to determine what the situation was with Dr. Fatemi. After the meetings, he
was satisfied that it was Dr. Fatemi who was causing the disruption and that no one
discriminated against her. Dr. Clardy was convinced that no residents or attending
physicians took any action that would cause Dr. Fatemi to feel isolated, harassed, or
unsafe. Dr. Fatemi disputes whether Dr. Clardy adequately looked into her allegation
of gender discrimination.
Dr. Clardy testified that he met with Dr. Day on April 14, 2010, to make sure
that Dr. Day was providing Dr. Fatemi with due process with her probation and
advised him to rewrite Dr. Fatemi's initial probation letter. According to Dr. Clardy,
he wanted to ensure that the letter was specific enough to notify Dr. Fatemi of her
behaviors and performance that needed improvement.
Also on April 14, 2010, Dr. Day received an email from Dr. Samer Elbabaa,
who, at the time, was an Assistant Professor of Neurological Surgery at UAMS and
a neurosurgeon at ACH. Dr. Elbabaa stated that he was in "full agreement" with Dr.
O'Brien "regarding our serious concerns of any future rotations for [Dr. Fatemi] at
ACH." Dr. Elbabaa explained that ACH nursing staff had approached him "regarding
their concerns with Dr. Fatemi's communication skills with families of kids on our
neurological service" and expressed his understanding "that Dr. Fatemi had similar
issues during her rotation at UAMS." He requested that Dr. Day not return Dr. Fatemi
to "pediatric neurosurgical service until she shows an improvement of her
communication skills and clinical performance."
-17-
As discussed in his meeting with Dr. Clardy on April 14, 2010, Dr. Day did
write Dr. Fatemi a longer, more descriptive letter explaining the reasons she was
placed on probation. Although the letter is dated April 10, 2010, Dr. Day did not give
the letter to Dr. Fatemi until their meeting on April 19, 2010. The letter provides as
follows:
I have met with Jim Clardy, M.D.[,] the DIO for UAMS[,] who has
asked me to provide more specific information in my communication to
you. Therefore, my original letter to you regarding your status on April
6 has been amended as set forth below.
On April 6, 2010, you met with myself, Dr. T. Glenn Pait, and Amy
Keeland to discuss your situation in our neurosurgical residency
program. As we indicated to you, there have been multiple complaints
regarding your behavior and professionalism both at UAMS and [ACH]
from multiple physicians and staff. These include disruptive behavior at
the 4B nurse's station and a patient safety issue on 4D Neuro where you
refused to remove soiled gloves before writing on patient charts at ACH.
You have had uniformly poor interactions with fellow neurosurgical
residents. You have also had poor interactions with residents of other
services, Neurology in particular, which have been documented. You
have refused at times to go to the operating room to help with cases you
have been assigned. Attending surgeons have expressed concern
regarding your ability to perform simple procedures safely even with the
normal degree of supervision. Timely and adequate performance of
History & Physicals as well as Consults has also been a specific problem
that has been previously discussed with you. Timely completion of
patient chart documentation has been a problem. Your knowledge of
very basic surgical skills has also been questioned by the Faculty
members. We discussed with you the specifics of these complaints and
that we consider these behaviors to be inconsistent with the standards of
our program. At this point you have failed to meet the behavioral
standards that are expected in order to adequately function on the
neurosurgery service. We also discussed incidents involving you that
could have directly affected patient safety. An example is that
mentioned above when you potentially exposed other patients and staff
-18-
to contamination by not removing your gloves when asked to by the
nurse on 4D Neuro at ACH. Actions along these lines cannot be
tolerated. Your ability to accurately place ventricular catheters has also
not been demonstrated satisfactorily, which is a critical basic skill at the
junior resident level.
You will continue to be supervised at the level of the other trainees in
the program, as appropriate for your level of training. We will continue
to monitor your progress, as we do for all residents, with respect to
patient safety, patient care, professionalism and neurosurgical
knowledge. We will be monitoring you based upon the following
expectations:
- You will take instructions (including OR
assignments) and suggestions without complaint[.]
- You will work in a socially acceptable manner with
staff[.]
- There will be no yelling or demonstrations by you in
front of patients and families[.]
- You will display no outbursts of anger with staff,
colleagues, patients, or families[.]
- You will demonstrate basic surgical skills to the
faculty's satisfaction such as suturing, tying,
handling the drill to make burr holes and
craniotomies, accurately placing ventricular
catheters, safely placing lumbar drains, performing
lumbar punctures, safely placing and managing
central venous and arterial lines in the ICU, as basic
examples.
- You will demonstrate to the faculty the acquisition
of requisite knowledge on rounds, in conferences,
and managing patients.
- You will provide timely and collegial consultations
and interactions when on-call[.]
We have placed you on probation at this time and will reevaluate your
progress in all of the above-mentioned areas involving professionalism,
-19-
patient safety, neurosurgical knowledge and patient care in six weeks,
at which time we will formally meet. We also will review your progress
with respect to participation in remedial counseling through the [EAP].
If you have not made sufficient progress with these behavioral and
professionalism issues or if any new issues or incidents arise in the
meantime, then I will move to dismiss you immediately from the
neurosurgical residency program here at UAMS.
To summarize our interventions to help you:
- We will meet again formally in six weeks to
reevaluate your progress[.]
- You will meet with Dr. Day every two weeks to
discuss your progress[.]
- You have access to the Yasargil Microsurgical
Laboratory to practice basic OR skills and should
ask for faculty supervision to guide you[.]
- We have suggested that you participate in anger
management counseling[.]
It is regrettable that this step has been taken but your actions have left
us little choice. Our primary concern is for the safety and well being of
our patients. Unprofessional conduct is not only a behavioral issue but
also a patient safety issue and we therefore take this very seriously.
If you have any further questions regarding these issues or your status,
please do not hesitate to contact me.
At the meeting, Dr. Fatemi refused to sign the letter and stated that she was
going to consult with her lawyer. An hour before Dr. Fatemi's meeting with Dr. Day,
she had told Dr. Charlie Teo in an email that she had hired a "high profile lawyer"
from Los Angeles, California.8
8
In April 2010, Dr. Fatemi contacted an attorney about her residency. On April
9, 2010, Dr. Fatemi began secretly tape recording conversations with coworkers. She
transcribed more than 30 conversations, including five with Dr. Day. The meeting of
-20-
On April 23, 2010, Dr. Day and Dr. Fatemi had another meeting. Dr. Day's
contemporaneous notes, which he testified were incorrectly dated April 19, 2010,
report that Dr. Day discussed Dr. Fatemi's progress with her and indicated to her that
no reports of disruptive behavior had been lodged against her in the prior two weeks.
He noted her "disheveled" appearance in wearing scrubs and a sweatshirt under a lab
coat. According to Dr. Day's notes, Dr. Fatemi "assured [him] that she would do
better." The notes state that Dr. Day discussed with Dr. Fatemi "the continued
concerns of the faculty, especially Dr. Pait, regarding her poor attendance in the OR
for assigned cases and/or not staying throughout assigned cases." Dr. Fatemi
responded that her attendance was due to on-call duties, but Dr. Day pointed out that
other residents did not have that problem. When Dr. Fatemi inquired about the
cadaver lab, Dr. Day "assured her that she could have access . . . whenever she
wished."
Dr. Fatemi recalls meeting with Dr. Day on April 23, 2010, "for the sole
purpose of obtaining copies of the reports that were in [her] file which had been
promised to [her] but had not been provided up until that point." She does recall Dr.
Day mentioning that she should not wear sweatshirts in the future and that he would
not allow the "guys" to wear them either. According to Dr. Fatemi, she had no
problem with Dr. Day's dress-code directive.
April 19, 2010, is one of the occasions on which Dr. Fatemi secretly recorded Dr.
Day. An unofficial transcript of this conversation is contained in the record, and Dr.
Fatemi quotes portions of this transcript in her declaration.
-21-
In early May 2010, Dr. Day and Dr. Fatemi met again.9 Dr. Day's
contemporaneous notes of the meeting indicate that Dr. Fatemi again refused to
accept responsibility for her problems in the program. Dr. Day wrote that Dr. Fatemi
would not reasonably discuss her performance problems. Dr. Fatemi expressed her
belief that she was being discriminated against because she was female. Dr. Day
disagreed with her regarding any discrimination and explained that the issues leading
to her probation were based on her unprofessional behavior, poor interpersonal
interactions, and poor attendance in the OR. According to Dr. Day, Dr. Fatemi
refused to accept any responsibility and blamed others for her problems in the
program. Dr. Day later testified that Dr. Fatemi continuously interrupted him and,
overall, that the meeting was contentious and unproductive.
Dr. Fatemi recalls Dr. Day asking her during the meeting about why she had
gone over her allotted hours and accusing her of sneaking out of a case with Dr. Pait.
According to Dr. Fatemi, she tried to explain that she did not sneak out but was
reassigned to another case with another doctor.
On May 19, 2010, Dr. Fatemi went to the OR to assist Dr. Day with a surgery
using a lateral suboccipital approach. Dr. Day's contemporaneous notes recorded the
events that ensued as follows:
9
Dr. Day recalled meeting with Dr. Fatemi on May 7, 2010, and his
contemporaneous notes are labeled with that date; by contrast, Dr. Fatemi testified
that although they had scheduled a meeting on May 7, 2010, Dr. Day had an
emergency surgery that day, subsequently left town, and could not meet with her.
According to Dr. Fatemi, they met on May 11, 2010. In his declaration, Dr. Day
stated that before he left for the airport, he met with his personal physician at 8 a.m.
and with Dr. Fatemi at 9:00 a.m. It was after the meeting with Dr. Fatemi on May 7,
2010, that he departed to catch his flight. We conclude that the date of this meeting
is not a material fact, as both parties agree that this particular meeting occurred. We
also note that Dr. Fatemi secretly recorded the meeting in question with Dr. Day and
cites to portions of the unofficial transcript in her declaration.
-22-
I had Dr. Fatemi in my operating room today for a case of a cerebellar
metastasis. We planned to perform this through a lateral suboccipital
craniotomy. When I arrived at the room Dr. [Bulent] Yapicilar, chief
resident,10 was present as well as Dr. Fatemi. . . . Dr. Fatemi was anxious
to show me some pictures she had performed in the laboratory just
yesterday of a lateral suboccip[ital] approach. I made some comments
with respect to what she had done in the pictures and I then instructed
her to scrub in with Dr. Yapicilar.
I observed her with Dr. Yapicilar beginning the case. It was quite clear
to me that she had trouble holding the scalpel properly. Her use of the
cautery instrument was clumsy and poorly focused. All in all she
appeared technically to be a level at or below what I would expect of a
third year medical student.
I began asking her basic anatomy questions. I quizzed her on the
muscles of the lateral neck that she [was] about to begin cutting through.
It became immediate[ly] evident that she had no clue as to what
. . . anatomy she was addressing. I instructed her to break scrub as she
did not know the anatomy. I stated to her that my expectation was any
resident performing an operation would know the basic anatomy before
the case. I asked her if she knew she would be scrubbing on this case
and she stated she did not know this. I then inquired that if she did not
know that she possibly might be involved on this case why had she
performed the exact approach on a cadaver just the day before. She did
not have an answer for that. I suspect she was being untruthful.
Nevertheless she had no basic anatomical knowledge of the region she
was approaching which I find quite unacceptable. I also find it
unacceptable that if she was studying the same approach just the day
before and still had no concept of the anatomy involved. This is
definitely below the standard for a resident in neurosurgery at any level.
I discussed this with her immediately at the time of my concern
regarding her lack of preparation.
10
Dr. Yapicilar became Chief Resident after Dr. DeCastro graduated.
-23-
Dr. Fatemi recalls the surgical experience with Dr. Day as being "humiliating."
According to Dr. Fatemi, Dr. Day told her that she smelled of garlic in an aggressive,
loud voice.11 She maintains that she had never seen a surgery like this before and did
not know that it involved the cutting of any neck muscles. She contends that Dr.
Yapicilar was also unable to name the neck muscles but was not thrown out of the
surgery. She asserts that Dr. Yapicilar never noticed her holding the scalpel
improperly, as Dr. Day accused of her of doing.
On May 22, 2010, Dr. Day received an email from Dr. Fatemi reporting an
event that occurred on May 21, 2010. According to Dr. Fatemi's email, Dr. Tabbosha
and Dr. Al Hafez were in the call room sleeping. Her email claimed that because of
a computer problem elsewhere, Dr. Fatemi needed to use the computer in the call
room. The email provided that "Monir [Tabbosha] got very very upset when I
eventually woke him up. I'm very afraid that as before he possibly makes another
report to you or mainly to Dr. Pait." To follow up on Dr. Fatemi's report, Dr. Day
spoke to Dr. Tabbosha and Dr. Al Hafez independently. Dr. Day asked Dr. Tabbosha
to document his recounting of the incident in an email, which provides, in relevant
part:
I was in the call room,12 when Dr[.] Fatemi start[ed] pounding very
strongly and vigorously on the door. So, I opened the door
immediately[,] and she start[ed] to Yale [sic] on me saying that she
want[ed] [to] use this computer in the room specifically. [A]s you know
there is [an]other neurosurgery office [o]n the same floor witch [sic]
11
At oral argument, Dr. Fatemi's counsel highlighted Dr. Day's comment that
Dr. Fatemi smelled of garlic. But neither in her appellate brief nor at oral argument
did Dr. Fatemi offer an explanation of how that comment relates to her gender.
12
In contrast to Dr. Fatemi's claim in her email that Dr. Tabbosha and Dr. Al
Hafez were in the call room, Dr. Tabbosha testified that there was no one else "in the
call room besides [him] when [Dr. Fatemi] came to the call room."
-24-
contains two computers in addition to our work room that ha[s] 2 other
computers, plus [a] computer in front of every single patient room and
around 10 portable ones. Dr[.] Fatemi continue[s] to mentally irritat[e]
me, and create problems and conflicts for no reason.
Dr. Fatemi testified that because of her ongoing problems at UAMS, Dr. Day
discussed resignation with her regularly, including on April 6, April 9, May 11, May
25, and May 28, 2010. Dr. Fatemi also wrote to Dr. Teo that Dr. Pait and others
regularly asked her to resign. Both Dr. Day and Dr. Pait deny discussing resignation
with Dr. Fatemi until Dr. Day's meeting with Dr. Fatemi on May 25, 2010.
On May 25, 2010, Dr. Day met with Dr. Fatemi to discuss the end of her six-
week probation. Dr. Day created a memorandum contemporaneously with the May
25, 2010 meeting, which provides as follows:
I met with Dr. Nasrin Fatemi today, which is six weeks now
ending her probationary period. I discussed with her what I felt to be her
lack of substantial progress in terms of interacting well with the
residents. I discussed with her that I had another complaint this week
from Dr. Tabbosha and Dr. Al Hafez regarding her behavior with them.
I find these continued problems in terms of interacting with the other
residents to be unacceptable and not consistent with what I had outlined
for her to continue on in the program.
We discussed the lack of preparation in the operating room for
surgical cases. I specifically addressed the case last week when she was
completely unprepared. I also even more importantly discussed with her
my disappointment in her technical skills. She clearly did not have skills
consistent with someone who was at least a second year resident. In fact,
I thought her very basic skills of opening a patient's wound were below
that of an intern level person. I discussed with her my opinion that she
should be able to at least hold a scalpel properly and to use the
electrocautery by this stage. She clearly was not able to do this
satisfactorily.
-25-
She and I then had a long discussion with respect to her future in
the program. We discussed numerous aspects of it. I related to her that
I did not believe based on what I had observed of her technical abilities
thus far to rectify this. I believe that she simply does not have any basic
natural ability to perform surgery.
I also discussed [with] her continued problems in terms of
interacting with her colleagues, both on the neurosurgery service and on
other services. This lack of professionalism I find troubling, and she has
clearly not been able to demonstrate a significant enough turnaround for
me to have any confidence that she will be able to have acceptable
professional relations in the future. This I believe will compromise her
ability to properly care for patients.
She expressed the belief that she will not be successful if
continuing in the program and I was in agreement with that assessment
as it mirrored mine. She agreed with me that it would be best if she
would not continue in the program going forward. I offered to help her
in any way possible in terms of securing a new job. She indicated that
she understood and that she would not return to UAMS for work the
following morning.
Dr. Fatemi testified that, during the meeting, she told Dr. Day to "let [her] go,"
to which Dr. Day responded, "You can consider yourself let go."13 When Dr. Fatemi
asked whether she was fired, Dr. Day replied, "I think we're done." Dr. Fatemi then
asked for confirmation that she was not to report to work the following day; Dr. Day
stated, "Well[,] that's correct. Unless you know again if you want to if you need a job
or need to stick around for the next 6 weeks and then finished that's fine." Dr. Fatemi
responded, "No." Ultimately, Dr. Day gave Dr. Fatemi two options during the
13
Dr. Fatemi secretly recorded the May 25, 2010 meeting with Dr. Day and
relies on the unofficial transcript in her declaration in support of her recollection of
events during the meeting. Dr. Day testified that there are some errors in the transcript
but that most of it is accurate.
-26-
meeting: She could resign and remain on the payroll for the month of June or be
terminated immediately for non-performance. According to Dr. Day, Dr. Fatemi's
tendering of her resignation would indicate a mutual agreement that she "is not a
good fit in the program here in Arkansas." He explained that if he terminated her,
then he would have to "be clear [about] the circumstances of [her] leaving" to anyone
who called for a reference; thus, potential employers would know that she got fired.
Dr. Fatemi admitted during her meeting with Dr. Day to "hav[ing] a horrible
communication issue" and not always "communicat[ing] well." Dr. Day then stated
that Dr. Fatemi's "English is not as good as [he] thought." Dr. Fatemi agreed, stating,
"That's true." When Dr. Day noted Dr. Fatemi's admission that she "ha[s] [a] problem
communicating with people," Dr. Fatemi replied, "No, yah that's true." Dr. Day
believed this to be a "character" trait of Dr. Fatemi's, but she countered that she is a
good communicator when she is "comfortable." According to Dr. Fatemi, "[T]he day
that you put me not to be under pressure I'm g[onna] get completely comfortable with
excellent communication. You put me in this I just stop communicating." She further
stated, "The day . . . you put me in [my] comfort zone will be different. And I know
myself[.] I am horrible when somebody put[s] me in huge pressure like this, and I've
been under this pressure for the . . . started almost [the]1st week. I know neurosurgery
has a lot of pressure but having this . . . ."
After the meeting, Dr. Fatemi sent an email to Dr. Dan Kelly, under whom she
had served as a fellow in California, stating, "I just got fired by J.D. [(Dr. Day)]."
Notwithstanding this email, on May 25 and 26, 2010, Dr. Day and Dr. Fatemi
exchanged emails regarding Dr. Fatemi's possible resignation in lieu of termination.
After the May 25, 2010 meeting, Dr. Day sent an email to the Department staff stating
that Dr. Fatemi would not be continuing in the program at UAMS. Within an hour,
Dr. Fatemi responded that she was looking for a position in California and would like
Dr. Day to write her a letter of recommendation. She added "my family lives in
California and I am dying to go back there any minute."
-27-
On May 26, 2010, Dr. Fatemi did not report for work. That evening, Dr. Day
sent Dr. Fatemi an email reminding her that he needed her letter of resignation by
5:00 p.m. on May 27, 2010. A few hours later, Dr. Fatemi sent Dr. Day an email
claiming that she never agreed to resign and that Dr. Day had fired her. Although Dr.
Fatemi claimed that Dr. Day had fired her, she reported to work the following day on
May 27, 2010.
On May 28, 2010, Dr. Day sent Dr. Fatemi an email to explain her options: Dr.
Fatemi could resign and finish the academic year by performing non-clinical duties
until June 30, 2010. If she chose to resign, Dr. Day requested that she have a letter of
resignation to his office by 5:00 p.m. on June 1, 2010. If she chose not to resign by
that time, then Dr. Day explained that he would be forced to terminate her from the
program. Within a couple of hours, Dr. Fatemi acknowledged receipt of the email.
Dr. Fatemi did not tender her resignation by the June 1, 2010 deadline; as a
result, Dr. Day considered her employment terminated. On June 2, 2010, Dr. Day sent
Dr. Fatemi a letter officially terminating her employment, effective June 3, 2010.
Dr. Fatemi filed an official grievance letter on June 11, 2010, claiming that she
had been discriminated against based on gender, national origin, and because she "did
not go along with the discriminatory atmosphere against individuals with different
gender or believes [sic]." Several months later, on November 19, 2010, Dr. Clardy
received a letter from Dr. Fatemi's counsel that Dr. Fatemi had decided to discontinue
her request for a grievance hearing. In short, the letter stated Dr. Fatemi's belief that
the grievance hearing would not serve a useful purpose and that the process was
unfair.
On June 2, 2011, Dr. Fatemi filed suit against UAMS, Associate Vice
Chancellor Hosea Long, Dr. Clardy, Dr. Fiser, and Dr. Day for claims of
discrimination on the basis of race, national origin, and gender; damage to her
-28-
professional reputation; violations of due process and equal protection under the
Arkansas and United States Constitutions; violations of the First Amendment of the
United States Constitution and the Arkansas Public Employees Political Freedom
Act; and interference with her business expectancy in continuing work at UAMS. She
also alleged that the defendants retaliated against her for consulting a lawyer and
complaining about discrimination. The defendants moved for summary judgment. In
ruling on the motion, the district court dismissed without prejudice Dr. Fatemi's
abandoned claims alleging discrimination based on national origin, race, and religion,
as well as her Public Employees Political Freedom Act, § 1981, and First Amendment
claims. The district court dismissed UAMS as a defendant with prejudice because it
is not a legal entity that may sue or be sued. The court also dismissed with prejudice
Dr. Fatemi's Title VII claims against Dr. Long, Dr. Clardy, Dr. Fiser, and Dr. Day
because supervisors may not be held individually liable under Title VII. The district
court also granted summary judgment to the defendants on Dr. Fatemi's gender-
discrimination and retaliation claims.
II. Discussion
On appeal, Dr. Fatemi challenges only the district court's grant of summary
judgment to the defendants on her gender-discrimination claim.14 She argues that the
district court erroneously made credibility determinations, failed to consider all of her
evidence, considered evidence from the non-movant that it should have ignored, and
drew inferences in favor of the defendants instead of her as the non-moving party.
"We review de novo the district court's grant of summary judgment to the
[defendants], viewing the facts in the light most favorable to [Dr. Fatemi] and giving
14
At oral argument, Dr. Fatemi's counsel expressly acknowledged that Dr.
Fatemi was no longer pursuing her retaliation claim and was pursuing only her
gender-discrimination claim. Moreover, "[s]ince there was no meaningful argument
on this claim in [her] opening brief, it is waived." Chay-Velasquez v. Ashcroft, 367
F.3d 751, 756 (8th Cir. 2004).
-29-
her the benefit of all reasonable inferences from the record." Butler v. Crittenden
Cnty., Ark., 708 F.3d 1044, 1048 (8th Cir. 2013) (emphasis added) (citation omitted).
We will affirm a district court's grant of summary judgment where "no genuine
dispute as to any material fact [exists] and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). To establish a genuine issue of material fact, Dr.
Fatemi "may not merely point to unsupported self-serving allegations, but must
substantiate allegations with sufficient probative evidence that would permit a finding
in [her] favor." Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir. 2005)
(citation omitted).
For Dr. Fatemi to prevail on her gender-discrimination claim, she "must show
either direct evidence of discrimination or evidence that is sufficient to create an
inference of discrimination under the McDonnell Douglas burden shifting
framework." Butler, 708 F.3d at 1050 (citation omitted). Because Dr. Fatemi has
presented no direct evidence of discrimination, she must prove gender discrimination
under the McDonnell Douglas burden-shifting framework. See id. A plaintiff
establishes a prima facie case of gender discrimination by proving "that she (1) is a
member of a protected class, (2) was qualified, (3) suffered an adverse employment
action, and (4) can provide facts that give rise to an inference of unlawful sex
. . . discrimination." Id. (citation omitted). The defendants must then "provid[e] a
'non-discriminatory, legitimate justification for [their] conduct, which rebuts the
employee's prima facie case.'" Twiggs v. Selig, 679 F.3d 990, 993 (8th Cir. 2012)
(alteration in original) (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 850 (8th
Cir. 2005), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d
1031 (8th Cir. 2011)). "Once the [defendants] provide[] this reason, the presumption
of discrimination disappears, requiring the plaintiff to prove that the proffered
justification is merely a pretext for discrimination." Id. (quotation and citation
omitted).
-30-
The defendants implicitly assume in their brief that Dr. Fatemi has satisfied her
prima face case.15 "We may 'assum[e], without deciding, that [Dr. Fatemi] presented
a prima facie case of [gender] . . . discrimination.'" Burton v. Ark. Sec'y of State, 737
F.3d 1219, 1229 (8th Cir. 2013) (first and fourth alterations in original) (quoting Bone
v. G4S Youth Servs., LLC, 686 F.3d 948, 954 (8th Cir. 2012)).
Dr. Fatemi also "has not challenged the district court's finding that the . . .
defendants articulated non-discriminatory, legitimate justifications for terminating
[Dr. Fatemi]." Id. The district court summarized the defendants' legitimate, non-
discriminatory reasons for Dr. Fatemi's termination as follows:
The record reveals multiple instances of Dr. Fatemi's disputative
behavior and her repeated refusal to take responsibility for her problems
interacting with hospital and university personnel. Dr. Pait testified that
her inability to work well with other residents compromised patient care.
She met offers of help with hostility. Her file contains multiple accounts
of unprofessional demeanor and refusals to take responsibility for her
behavior. Others reported that Dr. Fatemi did not appear for or walked
out on surgeries or duties assigned to her. In the absence of any
indication that those reporting these deficiencies were motivated by any
discriminatory animus, e.g. Diaz v. Tyson Fresh Meats, Inc., 643 F.3d
1149, (8th Cir. 2011), her supervisors were entitled to believe that the
reports from multiple people without any direct interest were true. Dr.
Day also testified that he had concerns about Dr. Fatemi's
untruthfulness, based on his own dealings with her. Apart from the
friction with coworkers and supervisors, the record reflects objective
performance problems, some as basic as her not holding a scalpel
correctly.
(Footnotes omitted.)
15
The defendants do not address whether Dr. Fatemi has satisfied her prima
face case in their brief; instead, they focus on whether she has proved pretext.
-31-
"[W]e conclude that the district court correctly determined that the
. . . defendants satisfied this non-onerous burden." Burton, 737 F.3d at 1230 (citation
omitted). As a result, Dr. Fatemi "must 'prove that the proffered justification[s] [are]
merely a pretext for discrimination.'" Id. (alterations in original) (quoting Bone, 686
F.3d at 955). The burden of persuasion is on Dr. Fatemi at all times. Id. (citation
omitted). "At this stage, [Dr. Fatemi's] obligation to demonstrate 'a genuine issue of
material fact regarding pretext merges with the ultimate burden of persuading the
court that [Dr. Fatemi] was the victim of intentional discrimination.'" Id. (quoting
Bone, 686 F.3d at 955). A strong prima facie case in combination with proof of
pretext may be sufficient to raise "'a triable question of fact as to whether the
termination was motivated by intentional discrimination.'" Id. (quoting Bone, 686
F.3d at 955). But a "bare assertion and speculation as to [an employer's] motive does
not create a genuine issue of material fact." O'Brien v. Dep't of Agriculture, 532 F.3d
805, 811 n.3 (8th Cir. 2008) (citation omitted).
A. No Female Has Graduated from the Neurosurgery Program
Prior to Dr. Fatemi, the UAMS neurosurgery program had two other female
neurosurgery residents—Dr. Robin Mitchell and Dr. Mollie Atherton Meek. Dr.
Mitchell's husband murdered her during her final year of residency, when she was
serving as Chief Resident. Dr. Atherton Meek, a neurosurgery resident from June
2005 to June 2006, left voluntarily to pursue a residency in interventional radiology
at UAMS. Thus, at the time Dr. Fatemi entered the neurosurgery program, no woman
had completed the program.16
16
Since coming to UAMS, Dr. Day has hired two female neurosurgeons, Dr.
Erika Petersen and Dr. Eylem Ocal, who currently serve as faculty and attending
physicians in the UAMS neurosurgery program. Dr. Day has also attempted to bring
in female neurosurgery residents every year. The Department has consistently ranked
female applicants within its top choices, but they have gone to other programs.
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Dr. Fatemi contends that the "uncontradicted evidence" that no women have
graduated from the neurosurgery program "is circumstantial proof of pretext." Bogren
v. Minn., 236 F.3d 399, 406 (8th Cir. 2000) ("Bogren also contends the fact that she
is the only black female trooper (and one of few black troopers) ever employed by the
patrol is circumstantial proof of pretext."). This evidence may be consistent with a
discriminatory pretextual purpose but, alone, does little to establish it in the absence
of proof of animus.
"[S]tatistical evidence 'may support a finding of pretext, particularly where
there are independent, direct grounds for disbelieving the employer's explanation for
discharge.'" Id. (quoting Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 778 (8th
Cir. 1995)). Having examined the full record, we conclude that Dr. Fatemi's evidence
"is insufficient to establish a genuine issue of pretext" because "there is no
independent evidence to support a finding of pretext." Id. Dr. Meek testified that,
during her year as a female neurosurgery resident at UAMS from June 2005 to June
2006, she never felt discriminated against because of her gender. She never felt
anything less than an equal member of the team. She never heard any derogatory
statements made about women or witnessed any discriminatory actions or statements
made on the basis of gender. Dr. Fatemi has offered no evidence to undermine Dr.
Meek's testimony and, in fact, Dr. Fatemi admitted to such facts in response to the
defendants' motion for summary judgment. Moreover, as discussed infra, Dr. Fatemi's
"evidence of pretext is wholly insufficient to create a genuine issue of material fact
under Rule 56" to show that the defendants' actually terminated her because of her
gender. See Part II.B–H.
B. Similarly-Situated Employees
Next, Dr. Fatemi argues that she established pretext by demonstrating that
similarly situated male residents were treated more favorably. Specifically, she cites
Dr. Tabbosha, Dr. B.Y., Dr. B.E., and Dr. N.S. as valid comparators.
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At the pretext stage, we apply a "rigorous" test for determining whether
employees are similarly situated to the plaintiff. Burton, 737 F.3d at 1230. This means
that Dr. Fatemi must prove that she and the male employees "were similarly situated
in all relevant respects." Id. (quotations and citations omitted). "Similarly situated in
all relevant respects" means that the male employees that Dr. Fatemi has identified
"must have dealt with the same supervisor, have been subject to the same standards,
and engaged in the same conduct without any mitigating or distinguishing
circumstances." Id. (quotations and citations omitted).
We do not, however, "require the plaintiff to produce evidence of a clone." Id.
at 1230–31 (quotation and citation omitted). This means that Dr. Fatemi "need only
establish that . . . she was treated differently than other employees whose violations
were of comparable seriousness." Id. at 1231 (quotations and citations omitted).
Thus, the comparator need not "have engaged in precisely identical conduct" or "the
exact same offense." Id. (quotations and citations omitted).17
First, Dr, Fatemi identifies Dr. B.Y. as a valid comparator. Dr. Fatemi cites to
evaluations for Dr. B.Y. from August–December 2006, January–June 2007,
January–June 2008, and July–December 2009 by Dr. Pait, Dr. Ali Krisht, Dr. Al-
Mefty, and Dr. McDonnell. In summary, these evaluations note that B.Y. needed
improvement in his basic surgical skills, basic knowledge, acceptance of criticism,
handling of calls from nurses, getting medical records on time, and interpersonal and
communication skills. Additionally, Dr. Fatemi cites a September 17, 2009 email
17
After the parties submitted their briefs, Dr. Fatemi moved to file a
supplemental brief to include the comparator standard set forth in Burton. Because
we are fully aware of Burton and the cases cited therein, we conclude that
supplemental briefing is not necessary and therefore deny the motion.
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from Dr. Teodora Terlea18 in which Dr. Terlea complained of Dr. B.Y.'s
"inappropriate," "unprofessional[ ]," "disrespectful," and "disruptive" behavior
toward Dr. Terlea on one occasion. All of the cited evaluations and Dr. Terlea's
complaint occurred during either Dr. Al-Mefty's tenure as Department Chair or Dr.
Pait's tenure as Interim Chair, not during Dr. Day's tenure.19 Thus, these asserted
comparators fail for the absence of the same supervisor.
Second, Dr. Fatemi asserts that Dr. B.E. is a valid comparator. On Dr. B.E.'s
July–December 2006 evaluation, Dr Pait noted that Dr. B.E. "appear[ed]
overwhelmed" but observed that "perhaps, with time[,] his confidence will improve."
On March 9, 2007, Dr. Therese McBride, Associate Clinical Professor in the UAMS
Department of Emergency Medicine, lodged a complaint against Dr. B.E. via email,
asserting that he was "loud, abrasive[,] and unprofessional not only with the ER
residents but also with both ED attendings. His behavior cannot be tolerated in this
department." In both the July–December 2007 and January–June 2008 "Summation
Evaluations" of Dr. B.E., Dr. Al-Mefty noted that he discussed Dr. B.E.'s "medical
record delinquency reports" with him. Both evaluations also indicated Dr. B.E.'s need
for technical improvement. On September 15, 2008, Dr. James Graham, Professor of
Pediatrics and Chief of the Section of Pediatrics Emergency Medicine, wrote a letter
to Dr. Al-Mefty describing an incident in which Dr. B.E. refused "to see [a] child with
18
Dr. Terlea is employed at the Central Arkansas Veterans Healthcare System,
John L. McClellan Memorial Veterans Hospital in Little Rock, Arkansas.
19
Dr. Fatemi cites no complaints lodged by others against Dr. B.Y. during Dr.
Day's tenure; instead, before the district court, she cited only to a "Graduating
Resident Evaluation" that Dr. Day completed for Dr. B.Y. in July 2011 in which Dr.
Day notes that Dr. B.Y. "[h]ad some difficulty with patients and fellow residents" and
"[n]eeds to improve communication skills." To the extent that Dr. Day's evaluation
constitutes new "complaints" against Dr. B.Y., we agree with the district court that
these complaints do not match the "number and severity of complaints" lodged
against Dr. Fatemi.
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a head injury and altered mental status." Dr. Graham characterized Dr. B.E.'s "medical
judgment" as "clearly wrong" and indicated that his actions were not only "medically
inappropriate and unprofessional" but potentially "in violation of federal law as well"
for his failure to see the patient. All of the cited evaluations and the two complaints
lodged against Dr. B.E. occurred during Dr. Al-Mefty's tenure as Department Chair,
well before Dr. Day's tenure.20
Third, Dr. Fatemi contends that Dr. N.S. is a valid comparator. The defendants
concede that Dr. N.S. "came close to receiving the number and severity of complaints
as [Dr.] Fatemi did." As the district court noted, Dr. N.S. was "a 2004 resident who
was allowed to finish his contract before he was asked to leave UAMS for medical
errors and behavioral issues." All of the medical errors and behavioral issues
concerning Dr. N.S. occurred in 2004 and 2005, when Dr. Al-Mefty was the
Department Chair and the decisionmaker as to Dr. N.S.'s probationary period and the
completion of Dr. N.S.'s contract.
20
Dr. Fatemi cites no complaints lodged by others against Dr. B.E. during Dr.
Day's tenure; instead, before the district court, Dr. Fatemi cited to a June 1, 2010
letter from Dr. Day to Dr. Neil A. Martin, Professor, Chairman, and Resident Program
Director at the David Geffen School of Medicine at the University of California at
Los Angeles (UCLA). The letter concerns Dr. B.E.'s transfer from UAMS to UCLA
and states that Dr. Day would release Dr. B.E. at the end of June 2010. Dr. Day
"gathered the comments of the faculty [at UAMS] to complete [Dr. B.E.'s] evaluations
since [Dr. Day] ha[d] only been around [Dr. B.E.] for two months now." He cited Dr.
B.E.'s "deficiencies" as "be[ing] rather hard on the intensive care unit nursing staff,"
needing improvement in his microsurgical skills, having a tremor, and being overly
confident or cocky. But Dr. Day also opined that Dr. B.E. "is a well liked and
generally pleasant colleague to his resident peers" who is "reliable" and dependable.
Dr. Day believed that Dr. B.E. would become "a competent general neurosurgeon
who can serve adequately whatever community he desires to serve." We agree with
the district court that the "deficiencies" that Dr. Day identifies in this transfer letter
do not match the "number and severity of complaints" that Dr. Fatemi had lodged
against her.
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In summary, the incidents that Dr. Fatemi identifies involving Dr. B.Y., Dr.
B.E., and Dr. N.S. all occurred prior to Dr. Day's tenure as Department Chair. We
agree with the district court that Dr. B.Y., Dr. B.E., and Dr. N.S. are not valid
"comparators because the incidents Dr. Fatemi cites occurred before Dr. Day chaired
the Department"; i.e., they had a different ultimate supervisor who was the actual
decisonmaker. See, e.g., Floyd-Gimon v. Univ. of Ark. for Med'l Sciences ex rel. Bd.
of Trustees of the Univ. of Ark., 716 F.3d 1141, 1150 (8th Cir. 2013) (gender-
discrimination case) ("Floyd–Gimon did not produce any evidence her comparators
had the same supervisor . . . ."); Bennett v. Nucor Corp., 656 F.3d 802, 819 (8th Cir.
2011) (race-discrimination case) ("The plaintiffs also did not show that the same
supervisors were responsible for granting training to white employees while denying
the plaintiffs' requests.").
The only comparator for which Dr. Day was the Department Chair when
complaints were lodged against the resident is Dr. Tabbosha, a male resident who
arrived at UAMS at the same time as Dr. Fatemi and was one year her senior in the
neurosurgery program. Dr. Fatemi argues that Dr. Tabbosha made homophobic
remarks; refused to treat homosexual patients; and yet still received the highest
possible rating in the category dealing with adherence to a code of moral and ethical
values, respect for patients, and sensitivity to patients' cultural values by Dr. Pait.
This occurred despite the fact that Dr. Pait counseled Dr. Tabbosha for his remarks
about, and treatment of, homosexual patients. She also argues that she reported him
for "extremely serious errors in diagnosing patients that would have led to those
patients having unnecessary surgery and possibly a second operation." And, she
asserts that Dr. McDonnell testified that he did not document these mistakes because
he did not want to harm Dr. Tabbosha's reputation. Finally, she argues that UAMS
was trying to build a case against her, so it accepted Dr. Tabbosha's false accusation
that she failed to assist Dr. Yasargil on a case without an investigation.
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Viewing the facts in the light most favorable to Dr. Fatemi and assuming that
all of the allegations against Dr. Tabbosha are true, we agree with the district court
that Dr. Fatemi cites no "evidence that [Dr.] Tabbosha was unwilling to accept
responsibility, was dishonest, or made no efforts to improve." Furthermore, while our
case law does not require the comparator to be a "clone," it does require that "the
misconduct of more leniently disciplined employees must be of comparable
seriousness." Burton, 737 F.3d at 1230 (quotations and citations omitted). Here, Dr.
Fatemi's documented errors are far more substantial and over a shorter period of time;
she was documented as argumentative, difficult and untrustworthy, jeopardizing
patient safety, failing to take directives, failing to document, erroneously assessing
a patient, lacking the ability to perform necessary surgical skills, unprofessional and
disrespectful, failing to communicate with colleagues, refusing to attend a surgery,
and breaching protocol.
As to Dr. Fatemi's accusation that Dr. Tabbosha made a false accusation
against her,
[t]he critical inquiry in discrimination cases like this one is not whether
the employee actually engaged in the conduct for which he was
terminated, but whether the employer in good faith believed that the
employee was guilty of the conduct justifying discharge. A plaintiff
seeking to survive an employer's motion for summary judgment must
therefore show a genuine issue for trial about whether the employer
acted based on an intent to discriminate rather than on a good-faith
belief that the employee committed misconduct justifying termination.
McCullough v. Univ. of Ark. for Med'l Sci., 559 F.3d 855, 861–62 (8th Cir. 2009)
(internal citations omitted). Dr. Fatemi has provided no evidence that the defendants
acted based on an intent to discriminate as opposed to a good-faith belief that Dr.
Fatemi committed the offense that Dr. Tabbosha reported.
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Finally, Dr. Fatemi has presented no evidence to substantiate her allegation that
her disciplinary record is more substantial than that of male residents because UAMS
intended to discriminate against her based on her gender. As discussed supra, Dr.
Meek's uncontroverted testimony belies a gender-based discriminatory environment
in the Department. We also note that several of the reports of Dr. Fatemi's
unprofessional behavior and medical errors came from females—Ashley Lumpkin,
Dr. Nancy Maalouf, Julie Holmes, and Tara Johnson. There is no evidence that these
females colluded with the defendants to further gender-based discrimination against
Dr. Fatemi.
C. Training by Dr. Gandhi
Dr. Fatemi argues that a genuine issue of material fact exists as to whether she
was discriminated against based on her gender during her first week at UAMS when
Dr. DeCastro told Dr. Fatemi, a female PGY-2, to follow and receive training from
Dr. Gandhi, a male PGY-1.
Like the district court, we conclude that no genuine issue of material fact exists
regarding Dr. Gandhi's training and orientation of Dr. Fatemi. Dr. Gandhi, a PGY-1,
had been with the Department since July 2009 and had attended both graduate school
and medical school at UAMS; thus, he was very familiar with the campus and
computer systems. Although Dr. Gandhi does not recall anybody at UAMS
specifically telling him to aid Dr. Fatemi in her transition, he testified that his
perceived "role . . . was to help her transition" by showing her around the campus. Dr.
Gandhi also testified that, like Dr. Fatemi, he also oriented Dr. Tabbosha, a male
PGY-3 with similar inexperience at UAMS. Dr. Fatemi has not challenged Dr.
Gandhi's testimony that he oriented both Dr. Fatemi, a female, and Dr. Tabbosha, a
male, who were both senior to Dr. Gandhi. Because both senior male and female
residents received the same treatment, no reasonable factfinder could draw an
inference of gender discrimination.
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D. Dr. DeCastro's Treatment of Dr. Fatemi
Dr. Fatemi asserts that a genuine issue of material fact exists as to whether Dr.
DeCastro's communication with Dr. Fatemi and about Dr. Fatemi to other students
shows gender discrimination.
Dr. Fatemi started complaining of gender discrimination to Dr. DeCastro
shortly after her entry into the program. Dr. DeCastro insisted that a third party be
present when he spoke with Dr. Fatemi pursuant to Dr. Pait's and UAMS's attorney's
instructions. Dr. Fatemi claims that "Dr. DeCastro made sure that the other residents
would be wary of me." Dr. DeCastro testified that he did not tell the other residents
that Dr. Fatemi claimed gender discrimination; instead, he only told them to have a
third party present for meetings with Dr. Fatemi.
Dr. Fatemi argues that "[a] jury could disbelieve, and indeed is not required to
believe for purposes of summary judgment, Dr. DeCastro's claim, first made after
litigation began."
We conclude that no genuine issue of material fact exists whether Dr.
DeCastro's treatment of Dr. Fatemi evidences gender discrimination. First, as the
district court concluded, "[s]imply having someone else present during a contentious
or sensitive conversation is not discriminatory or hostile." Second, once the
defendants moved for summary judgment, Dr. Fatemi "was required to 'discard the
shielding cloak of formal allegations and meet proof with proof by showing a genuine
issue as to a material fact." Pace v. Portfolio Recovery Assoc., LLC, 512 F. App'x
643, 645 (8th Cir. 2013) (per curiam) (quotation and citation omitted). Dr. Fatemi has
failed to identify any record evidence disputing Dr. DeCastro's claim that he did not
tell anyone about the discrimination allegations that Dr. Fatemi made.
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E. Dr. McDonnell's 2010 Memorandum
Dr. Fatemi also disputes whether Dr. McDonnell's February 20, 2010
memorandum, documenting problems with Dr. Fatemi's performance during a
surgery, constituted a "criticism" of her surgical skills that the defendants could rely
on in justifying her termination. According to Dr. Fatemi, the record as a whole
shows that she successfully completed the advanced surgery and was complimented
by Dr. McDonnell, who assisted. She cites his testimony that he would not have
permitted her to do the surgery unless he thought she was capable. According to Dr.
Fatemi, while the defendants pointed to Dr. McDonnell's memorandum as evidence
that Dr. Fatemi was not competent and even a danger to patients, the memorandum
shows that Dr. McDonnell merely found Dr. Fatemi to be inexperienced , which is not
a criticism but instead an observation made for teaching purposes. She concludes that
the proper inference to be drawn from Dr. McDonnell's memorandum and testimony
"is that the University was straining to build a case against her, even to the extent of
misusing its records."
We agree with the defendants that Dr. Fatemi's subjective belief that Dr.
McDonnell's memorandum is not a "criticism" of her surgical skills is irrelevant. The
question is not whether Dr. Fatemi was actually inexperienced or whether
characterizing Dr. Fatemi as "inexperienced" is a criticism of her, but whether the
defendants in good faith relied on Dr. McDonnell's memorandum documenting Dr.
Fatemi's inexperience as one of several justifications for her discharge. See
McCullough, 559 F.3d at 861. Dr. Fatemi must "show a genuine issue for trial about
whether the [defendants] acted based on an intent to discriminate rather than on a
good-faith belief that [Dr. Fatemi] committed misconduct justifying termination." Id.
(citation omitted).
Dr. Fatemi's argument that the defendants were "straining to build a case
against her" in relying on Dr. McDonnell's memorandum is mere speculation that
"does not create a genuine issue of material fact." See O'Brien, 532 F.3d at 811 n.3.
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Dr. Fatemi has provided no evidence that the defendants acted based on an intent to
discriminate against her on the basis of gender in relying on Dr. McDonnell's
memorandum as one of several justifications for her discharge.
F. ACH Complaints
Dr. Fatemi contends that a genuine issue of material fact exists as to whether
her reassignment to ACH was to add negative documentation to her file to support a
rationale, other than gender discrimination, for terminating her. According to Dr.
Fatemi, while Dr. Pait testified that he sent her to ACH to give her a "fresh start," the
defendants were actually "attempt[ing] to create documentation to support
terminating [her]" by "sen[ding] her to a children's hospital that she was inadequately
prepared for and received no orientation to acclimate her." She emphasizes that
"[r]esidents were normally only sent to the children's hospital after they had been in
the neurosurgery program for a while" and argues that it is "common knowledge that
nurses at the children's hospital often wrote up residents more often than was
probably necessary."
Dr. Fatemi merely speculates that Dr. Pait's actual motivation to transfer her to
ACH was to add negative documentation to her file. See O'Brien, 532 F.3d at 811 n.3.
She has neither alleged nor produced any evidence that Dr. Pait and Dr. O'Brien, or
any other member of the ACH staff, conspired to create negative documentation in
her file upon her transfer to support a justification, other than gender discrimination,
for terminating her. The undisputed facts are that Dr. O'Brien requested that Dr.
Fatemi be reassigned to UAMS after he received two complaints from female staff
members about Dr. Fatemi's behavior. Whether these complaints were actually true
is not the issue; instead, the issue is "whether the employer in good faith believed that
the employee was guilty of the conduct justifying discharge." McCullough, 559 F.3d
at 861 (citations omitted). Dr. Fatemi has failed to offer any evidence that Dr. O'Brien
had reasons to disbelieve the female nurses' reports, that Dr. O'Brien's actions were
motivated by gender discrimination, or that the defendants had reason to disbelieve
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Dr. O'Brien's report about Dr. Fatemi's behavior while at ACH. Nothing in the record
indicates that the events at ACH or the defendants' reaction to those events were made
in bad faith as a pretext for gender discrimination.
G. Reasons for Dr. Fatemi's Termination
Finally, Dr. Fatemi argues that a genuine issue of material fact exists as to
whether the defendants' reasons for disciplining and terminating Dr. Fatemi were
untruthful and shifting explanations. According to Dr. Fatemi, the second
probationary letter that Dr. Day gave her on April 19, 2010, contained new and false
allegations about her competency. She contends that "a jury could disbelieve Dr.
Day's letters explaining his reasons for termination and choose to believe that his
letters and his ever expanding explanations as to her discipline were in response to
her complaints, and not actual problems with Dr. Fatemi's performance as a resident."
A plaintiff may set forth evidence "of 'shifting explanations' . . . [that] give rise
to an inference of pretext." EEOC v. Trans States Airlines, Inc., 462 F.3d 987, 995
(8th Cir. 2006) (citations omitted).
[A] substantial change in an employer's legitimate, nondiscriminatory
reason for firing an employee may be probative of pretext, but we have
been clear that these discrepancies must actually be substantial. See
E.E.O.C. v. Trans States Airlines, Inc., 462 F.3d 987, 995 (8th Cir.
2006). Where employers "gave two completely different explanations
for their decisions to terminate their employees," such a substantial
change is established. Id. (citing Briscoe v. Fred's Dollar Store, Inc., 24
F.3d 1026, 1027–28 (8th Cir. 1994) and E.E.O.C. v. Ethan Allen, Inc.,
44 F.3d 116, 120 (2d Cir. 1994)). However, where the employer "has not
wavered from its one explanation for terminating" the employee, there
is no substantial change. Trans States Airlines, Inc., 462 F.3d at 995.
Twiggs, 679 F.3d at 994.
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A plaintiff must do more than identify discrepancies or inconsistences in an
employer's rationale for terminating the plaintiff to prove that the employer gave
"shifting explanations." See Trans States, 462 F.3d at 995. "In Young, Briscoe, and
Ethan Allen, the employers gave two completely different explanations for their
decisions to terminate their employees, and such a substantial change in position
supported an inference of pretext." Id. (citing Young v. Warner-Jenkinson Co., Inc.,
152 F.3d 1018, 1022 (8th Cir. 1998); Briscoe, 24 F.3d at 1027–28; Ethan Allen, 44
F.3d at 120). By contrast, in Trans States, we found that a mere "discrepancy" or
"inconsistent explanation" was not a "'shifting explanation' that we have said would
give rise to an inference of pretext." Id.
Dr. Fatemi has failed to satisfy her burden of proving that the defendants
provided "shifting explanations" for her termination because the two letters that Dr.
Day authored concerning Fatemi's probation are not "a substantial change in position"
or "completely different explanations" for Dr. Day's decision. The first letter
summarily concludes that Dr. Fatemi was placed on probation because of her "failure
to meet behavioral standards" and because of "incidents involving [Dr. Fatemi] that
could have directly affected patient care and safety." The second letter expounds on
the first letter, setting forth examples of Fatemi's behavioral problems and problems
with patient-care skills. As the district court explained:
Dr. Fatemi exhibited a pattern of behavioral and performance problems
that accumulated over time. Some new incidents had accrued since her
last meeting with her supervisors; and the amended probation letter's
contents generally reflected the problems discussed in earlier meetings
between Dr. Fatemi and faculty. Also, Dr. Fatemi was not terminated
until six weeks later. She thus had a month and a half to rectify any
misunderstanding and improve her performance.
(Footnotes omitted.)
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H. Summary
We have reviewed the entire, voluminous record and considered each of Dr.
Fatemi's arguments concerning pretext. While the record reflects an atmosphere of
contentiousness and discord between Dr. Fatemi and her coworkers during her
residency at UAMS, there is no evidence that such discord was the product of
intentional gender discrimination. As the district court explained, "A reasonable jury
could come to only one conclusion on gender discrimination after considering all the
undisputed material facts, and considering the few disputed facts in Dr. Fatemi's
favor. She lost her place at UAMS because of her many professional shortcomings
as a resident, not because she is a woman."
III. Conclusion
Accordingly, we affirm the judgment of the district court.
______________________________
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