775 F.3d 1022 (8th Cir. 2015), 13-2536, Fatemi v. White

Docket Nº:13-2536
Citation:775 F.3d 1022
Opinion Judge:SMITH, Circuit Judge.
Party Name:Nasrin Fatemi, 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, Defendants - Appellees
Attorney: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 Gener...
Judge Panel:Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
Case Date:January 06, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

After series of problems arising between Dr. Fatemi and other program residents and coworkers at the University of Arkansas for Medical Sciences (UAMS), including reported 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, the UAMS program terminated Fatemi, a female second-yea... (see full summary)

 
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Page 1022

775 F.3d 1022 (8th Cir. 2015)

Nasrin Fatemi, 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, Defendants - Appellees

No. 13-2536

United States Court of Appeals, Eighth Circuit

January 6, 2015

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.

OPINION

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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 court1 granted

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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

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...

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