Cicalese v. Univ. of Tex. Med. Branch

Decision Date05 February 2020
Docket NumberNo. 3:17-cv-00067,3:17-cv-00067
Citation456 F.Supp.3d 859
Parties Luca CICALESE, M.D. and Christiana Rastellini, M.D., Plaintiffs, v. The UNIVERSITY OF TEXAS MEDICAL BRANCH, Defendant.
CourtU.S. District Court — Southern District of Texas

S. Nasim Ahmad, The Ahmad Law Firm, The Woodlands, TX, for Plaintiffs.

Summer Rayne Lee, Office of the Attorney General of Texas, Austin, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

Jeffrey Vincent Brown, United States District Judge.

Before the court is The University of Texas Medical Branch's Rule 12(b)(6) motion to dismiss the plaintiffs' second amended complaint. Dkt. 52. Having considered the motion, the response, the reply, all relevant findings, and the applicable law, the court grants in part and denies in part UTMB's motion. More specifically, the motion is granted as to Dr. Luca Cicalese's disparate-treatment claim and denied as to Dr. Cristiana Rastellini's disparate-treatment claim.

I. PRIOR PROCEEDINGS
A. The plaintiffs' first amended complaint

This is not the first time the court has had occasion to decide whether the plaintiffs' Title VII national-origin-discrimination claims survive a motion to dismiss under Rule 12(b)(6). On March 22, 2018, Judge George C. Hanks, Jr., dismissed the plaintiffs' Title VII discrimination claims—for hostile work environment, disparate impact, and disparate treatment—after determining they had failed to state a claim upon which relief may be granted. Luca Cicalese, M.D. v. The Univ. of Tex. Med. Branch , 3:17-CV-67, 2018 WL 1427174 (S.D. Tex. Mar. 22, 2018) (Hanks, J.).

On May 16, 2019, the Fifth Circuit affirmed in part, and vacated and remanded in part, the court's dismissal, remanding only the plaintiffs' disparate-treatment claims:

While a close call, we conclude that Cicalese and Rastellini—in claiming UTMB's various actions against them were motivated by anti-Italian bias—alleged sufficient facts to "nudge[ ] their claims across the line from conceivable to plausible." The district court erred by holding Appellants to a heightened pleading standard. The court's analysis of the complaint's allegations—scrutinizing whether Appellants' fellow employees were really "similarly situated" and whether Jacobs's and Tyler's derogatory statements about Italians amounted to "stray remarks"—was more suited to the summary judgment phase. At this stage of the proceedings, a plaintiff need only plausibly allege facts going to the ultimate elements of the claim to survive a motion to dismiss. On a de novo review of Appellants' live complaint, we conclude they surmounted that lower bar.

Cicalese v. Univ. of Tex. Med. Branch , 924 F.3d 762, 768 (5th Cir. 2019) (internal citations omitted).

In reaching its decision, the Fifth Circuit did not address an alternative argument UTMB raised in its motion to dismiss—that the plaintiffs failed to timely exhaust their administrative remedies—instead, remanding the issue back to this court for consideration in the first instance. Id. at 768 n.3.

At a status conference on July 19, 2019, UTMB informed the court of its intent to again seek dismissal based upon the plaintiffs' failure to exhaust their administrative remedies. Specifically, UTMB argued the plaintiffs' pleadings failed to establish that the complained-of discriminatory events occurred within the 300 days immediately before the date that they filed their charges of discrimination with the Equal Employment Opportunity Commission (EEOC). Accordingly, UTMB argued, the claims are time-barred. Because the court's original dismissal order did not address this argument, Judge Hanks determined the issue was ripe for consideration and instructed the plaintiffs to amend their complaint for a second time to include factual allegations establishing (1) they exhausted their administrative remedies and (2) the dates on which the alleged discriminatory conduct occurred.

B. The plaintiffs' second amended complaint

Despite Judge Hanks' unambiguous directive, the plaintiffs' second amended complaint is a near duplicate of their first amended complaint, save for the addition of two paragraphs ostensibly discussing whether the plaintiffs exhausted their administrative remedies.1 Compare Dkt. 15, with Dkt. 50. And while the parties are amply familiar with the allegations at issue, a comprehensive recitation will help address the narrow arguments in UTMB's newest motion to dismiss.

In this case, two UTMB physicians allege they have been discriminated against because of their national origin. Cicalese and Rastellini are husband-and-wife medical doctors who, though now United States citizens, were born in Italy. Dkt. 50 at 3, 14.2 In 2007, they moved to the United States and both began working at UTMB. Id. Cicalese was hired as a tenured professor of surgery with an endowed chairmanship in transplantation surgery; he was also named director of UTMB's Transplant and Organ Failure Center. Id. at 14. Rastellini was hired for a tenure-track position as a professor of surgery and medicine and was made UTMB's Director of Transplant Research and Director of Cellular Transplantation. Id. at 4. Cicalese is not licensed to practice medicine in Texas, but UTMB provided him with a faculty medical license and promised to renew his license indefinitely, effectively granting Cicalese a permanent waiver from the Texas Medical Board's licensure requirement.3 Id. at 20-21.

According to the plaintiffs' allegations, things progressed smoothly in their first five years on the job. During that time, Rastellini, a self-described "leader and pioneer in the field of pancreatic islet transplantation [,] ... opened a new clinical islet transplant program, established a research lab with multiple successful projects, obtained grants[,] and published numerous papers in peer-reviewed journals." Id. at 4. Cicalese similarly flourished, "ma[king] changes to the Transplant Center that steadily improved the existing programs, add[ing] new and successful organ transplant programs, and add[ing] other research and educational programs including a surgical transplant fellowship." Id. at 14-15. Cicalese also became UTMB's Director of Hepatobiliary Surgery in 2008 and created a Ph.D. program for international students in 2012. Id. at 14.

The plaintiffs allege that their relationship with UTMB began to sour when the institution hired a new provost and dean, Dr. Danny Jacobs, in "approximately October 2012." Id. at 5, 15. According to the plaintiffs, Jacobs immediately began "harass[ing]" and "target[ing]" the plaintiffs based on their Italian heritage. Id. When he took over, Jacobs changed the criteria used to evaluate Rastellini's job performance so that she was judged only on her current National Institutes of Health funding—a change that led to Rastellini's receiving the first negative evaluations of her UTMB career. Id. at 5. After the change in evaluation criteria, Jacobs forced Rastellini to move to a new, "inadequate" laboratory to make room for another researcher. Id. at 5-6. This move, the plaintiffs allege, was emblematic of Jacobs' general refusal to provide facilities and staff that were sufficient for Rastellini to conduct her research. Id. In another instance, when Rastellini received an "Order of Merit ... by decree of the President of the Republic of Italy for her career accomplishments," Jacobs trivialized the honor by refusing to publicize it, despite "routinely publicly recogniz[ing] other faculty members for similar or even lesser accomplishments ..." Id. at 5.

Cicalese claims to have fared no better under Jacobs' management. First, Jacobs suspended UTMB's Liver Transplant Program and removed Cicalese as the Director of the Transplant and Organ Failure Center. Id. at 16. Then, Jacobs initiated an investigation into Cicalese's handling of liver-cancer surgeries, purportedly informing Cicalese that "regardless of the outcome of the investigation, [his] role and responsibilities would not return as they were before." Id. Cicalese was eventually "completely cleared of any wrongdoing" and contends the investigation was a "sham" designed to "find any possible grounds to terminate [him] from his tenured position at UTMB." Id. at 16-17.

The friction between the plaintiffs and UTMB intensified in October 2014 when Jacobs brought in a former colleague, Dr. Douglas Tyler, to serve as UTMB's new Chairman of Surgery. Id. at 7, 17. The plaintiffs allege that Tyler immediately joined Jacobs in "creat[ing] a hostile environment" for them because of their Italian heritage. Id. According to the plaintiffs, Tyler "marginalized" Rastellini by excluding her from departmental activities such as research task forces and staff-candidate interviews—activities in which, as the Director of Transplant Research and Director of Cellular Transplantation, Rastellini had regularly participated prior to Tyler's arrival—and refusing either to provide internal funding or help her obtain outside funding for her research. Id. at 7-10. Tyler also personally denigrated Rastellini and her work, saying that she provided "no value" to UTMB, was "not user[-]friendly," was "isolated," and was a "poor researcher." Id. at 9. Ultimately, Rastellini was told to stop all her research and relinquish her laboratory, "ordered to work for another, less-experienced" researcher, stripped of her director titles, and demoted to "a part-time, non-tenure track position at a significantly lower pay rate." Id. at 11-12.

Cicalese's UTMB career likewise languished upon Tyler's arrival. The plaintiffs claim Tyler reduced Cicalese's salary; instituted a requirement that Cicalese clear any liver-surgery cases with Tyler, no matter the circumstances; stripped Cicalese of his director titles and his endowed chairmanship; removed Cicalese from his position as Director of the International Ph.D. Program (which Cicalese had created); limited Cicalese's surgical duties, which adversely affected his compensation; told Cicalese that his tenure was not guaranteed and...

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