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Fatemi v. White

United States Court of Appeals, Eighth Circuit

January 6, 2015

Nasrin Fatemi, Plaintiff - Appellant
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, Defendants - Appellees

Submitted September 8, 2014.

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.

For Nasrin Fatemi, Plaintiff - Appellant: Denise Reid Hoggard, RAINWATER & HOLT, Little Rock, AR; Dennis J.C. Owens, WYRSCH & HOBBS, Kansas City, MO.

For Charles White, in his Official Capacity, Defendant - Appellee: Lucie Ingram, Associate General Counsel, UNIVERSITY OF ARKANSAS, Associate General Counsel, Little Rock, AR.

For 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, Defendants - Appellees: Lucie Ingram, Associate General Counsel, UNIVERSITY OF ARKANSAS, Associate General Counsel, Little Rock, AR; Bonnie J. Johnson, Philip E. Kaplan, WILLIAMS & ANDERSON, Little Rock, AR.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.


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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 court[1] granted

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summary judgment in favor of the defendants, and Dr. Fatemi appeals. We affirm.

I. Background[2]

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

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 . 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

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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 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 thirdparty 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]

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

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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 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."

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

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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 indepth.
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 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

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complaining about their interaction with her. Dr. Fatemi maintains that Dr. Maalouf's report that Dr. 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 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.

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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 " 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 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

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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 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 ...

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