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Lee v. Burwell

United States District Court, D. New Mexico

October 15, 2018

CALBERT LEE, Plaintiff,
v.
SYLVIA MATHEWS BURWELL, Secretary, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

          MEMORANDUM OPINION AND ORDER

         The Gallup Indian Medical Center (GIMC) terminated Plaintiff Calbert Lee from his position as a medical officer one month before the end of his two-year probationary period. Plaintiff alleges that GIMC fired him because he is Native American, and thereby violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Before the Court is Defendant's Motion for Summary Judgment (Doc. 18), filed April 20, 2017, and Plaintiff's Motion to Strike Provisions of Defendant's Statement of Facts in Defendant's summary judgment motion (Doc. 22), filed May 11, 2017.

         Having reviewed the motions, briefing, evidence in the summary judgment record, the relevant law, and otherwise being fully advised, the Court concludes that Plaintiff has failed to establish a prima facie case of race-based discrimination and further, even assuming Plaintiff established a prima facie case, Plaintiff has failed to demonstrate that Defendant's proffered reasons for his termination were a pretext for unlawful race-based discrimination. Accordingly, the Court grants Defendant's motion for summary judgment and dismisses this case with prejudice.

         I. BACKGROUND

         Before considering the facts and procedural history relevant to Defendant's summary judgment motion, the Court addresses two preliminary matters: (1) Plaintiff's motion to strike several exhibits Defendant submitted in support of its summary judgment motion (Doc. 22); and (2) factual assertions in Plaintiff's unverified complaint that the Court is considering for purposes of summary judgment.

         a. Plaintiff's Motion to Strike (Doc. 22)[1]

         “At the summary judgment stage, evidence need not be submitted in a form that would be admissible at trial.” Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (internal citation omitted). “Parties may, for example, submit affidavits in support of summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form.” Id. “Nonetheless, the content or substance of the evidence must be admissible.” Id. (internal citation and quotation marks omitted). “Thus, for example, at summary judgment courts should disregard inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form.” Id. “The requirement that the substance of the evidence must be admissible is not only explicit in Rule 56, which provides that ‘[s]upporting and opposing affidavits shall . . . set forth such facts as would be admissible in evidence,' Fed.R.Civ.P. 56(e), but also implicit in the court's role at the summary judgment stage.” Id. “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Id.

         In his motion to strike, Plaintiff seeks to strike sixteen defense exhibits on “grounds of [f]oundation and [h]earsay.” Id. Plaintiff offers no further explanation besides this statement for each exhibit and it is not the Court's role to develop Plaintiff's argument. Thus, although the Court will address Plaintiff's objections, its analysis will necessarily be limited by Plaintiff's failure to develop his arguments.

         First, the Court overrules Plaintiff's foundation and hearsay objections to Dr. Mora's affidavit (Def. Ex. 4). Rule 56(c)(4) requires that an affidavit be made on personal knowledge, show that the affiant is competent, and include facts that would be admissible at trial. Plaintiff's foundation objection is overruled because he has given no reason to doubt that Dr. Mora's affidavit is based on her personal knowledge of Plaintiff's job performance, complaints GIMC received regarding Plaintiff, and the circumstances surrounding his termination. As to Plaintiff's hearsay objection, Plaintiff argues that the following lines in Dr. Mora's affidavit contain inadmissible hearsay: “within the first month of [Plaintiff's] employment we received a patient complaint that he was rude and did not want to talk to the patient's family. We just thought he was new to the facility; so, Dr. Forman sat down and talked with him. Then, we received another complaint from staff in the Emergency Room regarding him being rude to the nurses. Later, we received a complaint from the Operator that he was rude when he yelled at her. Essentially, we just received several complaints from patients, their families, and Agency staff.” See Mora Aff. (Doc. 18-1) at 3. Hearsay is defined as “a statement that . . . a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). A “statement” is a “person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a). The Court concludes that these lines in Dr. Mora's affidavit do not constitute hearsay because Defendant does not offer them to prove the truth of the matters stated therein (e.g., that Plaintiff was in fact “rude” to staff or patients) but rather for the purpose of establishing that Dr. Mora received complaints about Plaintiff from patients and staff and these complaints, whether ultimately valid or not, constituted a race-neutral reason for terminating Plaintiff. Furthermore, Plaintiff himself characterized these complaints in a manner similar to Dr. Mora. See Lee Aff. (Doc. 21-1) at 6-7 (“The operator complained to her supervisor that I was rude”; “the patient's family thought I was being rude and filed a complaint.”). Thus, essentially the same evidence Plaintiff seeks to exclude is already in the record elsewhere without objection. For these reasons, the Court overrules Plaintiff's hearsay and foundation objections to Dr. Mora's affidavit.

         The Court next considers Plaintiff's foundation and hearsay objections to several defense exhibits consisting of complaints GIMC received regarding Plaintiff (Def. Ex. 9 - 14, 16, 18, 20, 22 - 23); an internal GIMC memorandum providing physician salary information (Def. Ex. 5); a letter of counseling GIMC issued to Plaintiff (Def. Ex. 15); and informal notes/memos Plaintiff's immediate supervisor, Dr. Forman, kept of conversations he had with Plaintiff regarding the complaints (Def. Ex. 19, 21). Defendant contends that several of these exhibits fall within the hearsay exception for business records. Doc. 24 at 6-7. In support of its business record argument, Defendant points out that GIMC kept complaints about Plaintiff in Plaintiff's personnel file. Doc. 24 at 6. Further, Defendant again argues that complaints about Plaintiff do not constitute hearsay because they are not being offered for the truth, but rather to demonstrate the information Dr. Mora relied on when she decided to terminate Plaintiff. Doc. 24 at 5-6.

         “Rule 803(6) of the Federal Rules of Evidence provides an exception to the hearsay rule for business records if they are ‘kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum [record].'” United States v. Gwathney, 465 F.3d 1133, 1140 (10th Cir. 2006). To satisfy Rule 803(6), “a document must (1) have been prepared in the normal course of business; (2) have been made at or near the time of the events it records; . . . (3) be based on the personal knowledge of the entrant or of an informant who had a business duty to transmit the information to the entrant; and (4) not have involved sources, methods, or circumstances indicating a lack of trustworthiness.” Id. at 1140-41 (internal quotation marks and citation omitted). “Not every item of business correspondence constitutes a business record. It is well-established that one who prepares a document in anticipation of litigation is not acting in the regular course of business. Moreover, business records are potentially fraught with double hearsay. Double hearsay in the context of a business record exists when the record is prepared by an employee with information supplied by another person. Any information provided by another person, if an outsider to the business preparing the record, must itself fall within a hearsay exception to be admissible.” Id. at 1141 (internal quotation marks and citations omitted).

         The bulk of Plaintiff's motion to strike consists of foundation and hearsay objections to several defense exhibits consisting of complaints GIMC received regarding Plaintiff (Def. Ex. 9 - 14, 16, 18, 20, 22 - 23). The Court agrees with Defendant that these are business records in the sense that it was GIMC's normal practice to keep patient and staff complaints regarding an employee in the employee's personnel file. Further, the complaints memorialized in these records do not constitute inadmissible hearsay because they are not being offered for the truth of the matter asserted (i.e., the truth/falsity of each complaint or whether Plaintiff did/said what was alleged in the complaint). Instead, they are being offered to show that the complaints were made, that Dr. Mora and/or Dr. Forman had notice of the complaints at the time they decided to terminate Plaintiff, and that Dr. Mora terminated Plaintiff for a race-neutral reason.

         Plaintiff argues that Dr. Mora's basis for relying on the complaints was unsound. This argument, however, does not bear on the admissibility of the evidence. Moreover, if Dr. Mora truly fired Plaintiff because she believed these complaints about Plaintiff's professionalism and demeanor were valid, whether Dr. Mora was reasonable in relying on these complaints is irrelevant. For purposes of the Court's Title VII analysis, it does not matter whether Dr. Mora's decision to terminate Defendant was just. What matters is whether Dr. Mora made her decision based on Plaintiff's race. The Court will consider Defendant's Exhibits 9 - 14, 16, 18, 20, 22 - 23 for the non-hearsay purpose of supporting Defendant's asserted race-neutral reason for terminating Plaintiff.

         The Court next agrees with Defendant that GIMC's internal memorandum concerning salary information (Def. Ex. 5) and the letter of counseling GIMC issued to Plaintiff (Def. Ex. 15) are exhibits that fall within the business records exception to the hearsay rule. There is no indication that these two documents do not satisfy Rule 803(6). Thus, the Court overrules Plaintiff's objection as to Defendant's Exhibits 5 and 15.

         The admissibility of the final item, Dr. Forman's informal notes of meetings with Plaintiff (Def. Ex. 19, 21), is a closer call because Defendant has not established that Dr. Forman's notes were generated in the normal course of business or that it was GIMC's regular practice to have supervisors such as Dr. Forman take such notes and add the notes to employee personnel files. The Court does not rely on this evidence in its analysis, however, and so need not rule on the admissibility of Defendant's Exhibits 19 and 21.[2]

         In sum, for the reasons set forth above, Plaintiff's motion to strike (Doc. 22) is denied with the exception of Defendant's Exhibits 19 and 21, the admissibility of which is a moot issue in light of the present Order.

         b. Factual Assertions from Plaintiff's Complaint

          In its summary judgment motion, Defendant set forth as undisputed material facts a number of factual assertions taken directly from Plaintiff's unverified complaint. Doc. 18 at ¶¶ 9-10, 13-19, 21-23. Generally, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Fed.R.Civ.P. 56, and if the allegations contained in the verified complaint are not “merely conclusory.” See Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1019 (10th Cir. 2002) (internal citations and quotation marks omitted). While the unverified nature of Plaintiff's complaint would typically dictate against its use at the summary judgment stage, Defendant concedes these facts as undisputed for purposes of summary judgment. Because Defendant conceded these facts, Plaintiff did not offer (nor did he have any reason to) other evidence to support these factual assertions. Therefore, with one exception, [3] the Court will consider those facts in Plaintiff's unverified complaint that Defendant has unequivocally conceded as undisputed facts for purposes of summary judgment. See Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270, 272 (10th Cir. 1967) (explaining that on summary judgment, the “trial court may not disregard facts stipulated to by the parties or require evidence to support them” and that such stipulations are to be regarded as admissions under Fed.R.Civ.P. 56); Spencer v. Abbott, 731 Fed.Appx. 731, 737-38 (10th Cir. 2017) (unpublished) (noting that Tenth Circuit precedent prohibits district courts from disregarding intentional factual stipulations or admissions in summary judgment briefs); Wheeler v. John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991) (“District courts [] are vested with broad discretion in determining whether to hold a party to a stipulation or whether the interests of justice require that the stipulation be set aside.”).

         Having resolved these preliminary matters, the Court now turns to the relevant factual background and procedural history of this case.

         c. Factual Background[4]

         On November 7, 2010, Plaintiff began his employment with the United States Department of Health & Human Services as a Medical Officer (Internal Medicine) at the Gallup Indian Medical Center (GIMC), which is within the Navajo Area Indian Health Service. See Def. Ex. 1, Ex. 24 (Doc. 18-1). Dr. Bruce Forman, the acting chief of internal medicine at GIMC, hired Plaintiff and served as Plaintiff's first line supervisor throughout his employment. See Doc. 18, Defendant's Undisputed Material Facts (hereinafter “Def. UMF”) ¶ 3. GIMC Clinical Director, Dr. Paula Mora, and GIMC Acting Chief Executive Officer, Bernie Yazzie, served as Plaintiff's second line and third line supervisors, respectively. Def. UMF ¶¶ 5-6; see also Def. Ex. 24.

         Dr. Mora and Mr. Yazzie are Native American, while Dr. Forman is Caucasian. Def. UMF ¶¶ 4-6. Plaintiff identifies his race as Native American. See Compl. (Doc. 1) ¶ 6; Lee Aff., Nov. 14, 2011, Def. Ex. 2, at 2.

         Under applicable federal regulations, Plaintiff was subject to a two-year trial period because he was hired for an excepted service position. See Def. UMF ¶ 2 (citing 42 C.F.R. § 136.42; 5 C.F.R. § 213.3116(b)(8); 5 C.F.R. § 9901.512(a)(3)); see also Doc. 21, Plaintiff's Undisputed Material Facts (hereinafter “Pl. UMF”) ¶ 1 (acknowledging Plaintiff had two-year trial period). According to Dr. Mora, GIMC was pleased to hire Plaintiff because he was trained in internal medicine and had completed a critical care fellowship; he was from the local area and spoke Navajo; and he had a “four year obligation payback scholarship which meant we would have him for four years which helps with stability and continuity.” See Mora Aff., Dec. 5, 2013, Def. Ex. 4, at 3.

         On October 5, 2012, approximately one month before the end of the trial period, Plaintiff was terminated from his position for “unacceptable conduct” which made him “not suitable to effectively perform the duties of a Medical Officer.” Def. Ex. 24. The events that transpired during Plaintiff's trial period and the circumstances underlying his termination are at issue in this case. Plaintiff claims that GIMC discriminated against him, and ultimately fired him on the basis of his Native American race. Defendant denies this and maintains that GIMC fired Plaintiff based on complaints it received regarding Plaintiff's interactions with patients, staff, and other providers. The parties' differing accounts regarding Plaintiff's employment are set forth below.

         i. Plaintiff's version of events

         Plaintiff states that, when he was recruited for the Internist position, GIMC expressed an intent to build a hospitalist program and promised him a hospitalist position once the program and hospitalist position was created. Pl. Aff., Nov. 14, 2013, Pl. Ex. A, at 2 (Doc. 21-1); Def. UMF ¶ 9. Although Plaintiff began his employment as an internist, he also conducted hospitalist care. Id. At some unspecified point in his employment, Plaintiff discovered that GIMC hired another physician, Dr. Barrett, who was a Non-native female for the hospitalist position. Def. UMF ¶¶ 10, 12; Lee Dep. 22:5-21 (Pl. Ex. B); Pl. Aff. at 5. Plaintiff did not apply for this hospitalist position because he was not even aware that it had been advertised. Pl. Aff. at 5; Def. UMF ¶ 11.

         Plaintiff claims that “immediately after the first three days in the position, [he] was overwhelmed by the work hours.” Pl. Aff. at 2. Within the first few months of his employment, Plaintiff expressed concerns regarding his work schedule to his immediate supervisor, Dr. Forman. Pl. Aff. at 3. At one point, Plaintiff reviewed the work schedules for other providers and noted that he was on-call more frequently than the other providers. Pl. Aff. at 3. Plaintiff also indicates that he was treated as an outsider by the Internal Medicine Department. As an example, he asserts that, although the Department held parties for new providers, he did not receive a party and was not invited to these types of parties. Def. UMF ¶ 18-19; see also Pl. Interrog. #1 Resp. (Pl. Ex. C). Plaintiff, however, also stated in his deposition that although he was initially included in department events, as the months progressed in his employment, he decided not to attend “as did other providers.” Def. UMF ¶ 20; Pl. Dep. 84:20-85:4 (Def. Ex. 6).

         Plaintiff further states he was not asked to perform critical care procedures even though he was available to perform these procedures. Def. UMF ¶ 21. Instead, non-Native providers were asked to perform these procedures, and Plaintiff was only reluctantly allowed to assist the non-Native providers if he brought the necessary procedures to the attention of management. Def. UMF ¶ 22-23. Plaintiff also indicates that his suggestions or questions about procedures were put aside. Def. UMF ¶ 15.

         Despite these issues, Plaintiff claims he performed his job well. He points in particular to the fact that he was rated as “fully successful” in his Employee Performance Appraisal for the first year of his trial period (1/26/2011 - 12/31/2011). See Pl. Ex. D. Dr. Forman, who appraised Plaintiff, wrote that Plaintiff “does a very good job with the Int. Med. ...


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