Carter v. St. Louis University, 97-2699

• Decision Date: 09 March 1999
• Docket Number: No. 97-2699,97-2699
• Parties: 132 Ed. Law Rep. 295 Jeffrey D. CARTER, Appellant, v. ST. LOUIS UNIVERSITY, a Missouri Benevolent Corporation; Donald L. Kaminski, M.D., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 398

167 F.3d 398

132 Ed. Law Rep. 295

Jeffrey D. CARTER, Appellant, v. ST. LOUIS UNIVERSITY, a Missouri Benevolent Corporation Donald L. Kaminski, M.D., Appellees.

No. 97-2699.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 9, 1998.

Filed Feb. 1, 1999.

Rehearing and Rehearing En Banc Denied March 9, 1999.

Michael A. Gross, Cynthia A. Sciuto, St. Louis, MO, argued, for Appellant.

Thomas E. Tueth, Nancy D. Thomas, St. Louis, MO, argued, for Appellee.

Before: McMILLIAN, WOLLMAN and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Dr. Jeffrey D. Carter, M.D., appeals from a final order entered in the District Court ¹ for the Eastern District of Missouri granting summary judgment in favor of defendants Saint Louis University and Dr. Donald L. Kaminski, M.D., on appellant's claims that defendants discriminated against him on the basis of race in violation of Title VII, 42 U.S.C. § 1981 and state law. Carter v. Saint Louis University, No. 4:95CV1528-DJS (E.D.Mo. Apr. 3, 1997) (order granting summary judgment). For reversal, appellant argues that the district court erred in holding that he failed to create a factual dispute as to whether defendants' proffered reasons are pretextual or to present evidence sufficient to support a reasonable inference of unlawful discrimination. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction in the district court was asserted under 28 U.S.C. §§ 1331, 1337, 1343(3), and 1367. The notice of appeal was timely filed under Fed.R.App.P. 4(a), and jurisdiction in the court of appeals is based on 28 U.S.C. § 1291.

The following statement of facts is based in large part on the district court's order. Appellant was one of four doctors and the only African-American in the 1991 general surgical residency program at Saint Louis University Medical School. Dr. Kaminski is Professor of Surgery and the director of the surgical residency program. The surgical residency program lasts five years and residents rotate through different departments at the medical school and several local hospitals. During each rotation, the resident is supervised and evaluated by medical school faculty and hospital physicians. Dr. Kaminski reviews the evaluations and communicates concerns to residents. Residents can be placed on probation for unsatisfactory academic or clinical performance, and residents are also expected to score in the 25th percentile or better on annual standardized in-service examinations administered by the American Board of Surgery (ABSITE exams). Residents who fail to meet these standards may be dismissed.

During his first year, appellant received mixed clinical evaluations (six of sixteen evaluations rated his performance as less than satisfactory) and he scored in the 9th percentile on the ABSITE exam. During his rotation at one local hospital, appellant alleged that a chief resident physician made racially offensive remarks about him and patients. This physician was not a medical school faculty member and did not evaluate appellant for the surgical residency program. Dr. Kaminski cautioned appellant that his low ABSITE exam score and clinical performance could result in his termination from the program and gave him suggestions for improvement.

During his second year, appellant also received mixed clinical evaluations, and the surgical faculty concluded appellant's clinical performance was unsatisfactory. Dr. Kaminski placed him on probation for three months and removed him from clinical duties. Appellant conducted laboratory research, presented his research work at a major medical conference and wrote an article which was later published in a medical journal. Appellant scored in the 29th percentile on the ABSITE exam.

Appellant returned to clinical rotations and began his third year with generally favorable evaluations during his first rotation; two evaluations noted that his performance was much improved. However, during his second rotation, two supervising physicians evaluated his knowledge and clinical performance as "below average." The surgical faculty concluded that appellant should not continue in the program. However, Dr. Kaminski stated that, pursuant to medical school policy, appellant had to be placed on probation before he could be terminated from the program, there would be a stronger basis for termination if appellant did not score in the 25th percentile on the upcoming ABSITE exam, and his performance on probation should be thoroughly documented. The surgical faculty agreed with Dr. Kaminski's recommendation to place appellant on probation. Appellant alleged that this is evidence that in fact he was terminated from the program at this time (December 1993), his second probation was a sham, and the surgical faculty had decided to manufacture a paper trail to support the decision to terminate him.

In January 1994 Dr. Kaminski notified appellant that he was again on probation. Also in January 1994 Dr. Kaminski performed two operations with appellant's assistance. Dr. Kaminski concluded that appellant lacked an understanding of certain basic surgical concepts and that his performance was below that expected of a third-year surgical resident. Two surgical faculty members criticized appellant's clinical performance. Appellant alleged that he was assigned significantly more on-call or overnight duty assignments than other residents, which made it very difficult for him to prepare for the ABSITE exam, and that, as a result, he scored in the 9th percentile.

In March 1994 Dr. Kaminski terminated appellant from the program for poor performance.

In August 1995 appellant filed this action against defendants, alleging that during his employment as a surgical resident defendants discriminated against him and terminated him from the program on the basis of race in violation of Title VII, 42 U.S.C. § 1981 and state law. Defendants filed motions to dismiss. The district court dismissed the Title VII and state law claims against Dr. Kaminski individually but not the § 1981 claim and then granted summary judgment in favor of defendants on the remaining claims. The district court deemed that, for purposes of the motion for summary judgment, appellant established a prima facie case of race discrimination, slip op. at 5, and found that defendants articulated legitimate, nondiscriminatory reasons for their actions, that is, poor ABSITE exam scores and various evaluations indicating unsatisfactory clinical performance. Id. The district court then found that appellant's evidence failed to create a factual dispute as to pretext or to support a reasonable inference of unlawful discrimination. Id. at 16. The district court specifically rejected appellant's arguments about the subjective nature of the evaluations, procedural irregularities, and statistical evidence concerning the university's historical record for training and employment of African-American surgeons. Id. at 8-15. This appeal followed.

For reversal, appellant argues that the district court erred in granting summary judgment in favor of defendants because the evidence was sufficient to create a fact issue on pretext and to support a reasonable inference of unlawful discrimination. Appellant challenges defendants' reliance on his low ABSITE exam scores because defendants decided to terminate him on the basis of his first and second scores and the second-year score was satisfactory (29th percentile). Appellant also challenges defendants' reliance on the evaluations. He argues that his evaluations were in fact mixed, that is, he received what he describes as mostly satisfactory to exceptional evaluations, although admittedly some were less than average. Appellant also argues that there was statistical and anecdotal evidence showing racial discrimination, amounting to a racially hostile work environment, in the...