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Sarrai v. Azar

United States District Court, D. New Mexico

December 28, 2018

MONA SARRAI, M.D., Plaintiff,
v.
ALEX AZAR[1] AS SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

          MEMORANDUM OPINION AND ORDER

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant's Motion for Summary Judgment, and Memorandum in Support (Doc. 35), filed April 15, 2018. The Court, having considered counsel's arguments, the record, and the relevant law, finds that the motion is well taken and should be GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND [2]

         This case arises out of a dispute between Plaintiff Mona Sarrai, M.D. (“Dr. Sarrai”) and the United States Department of Health and Human Services (“HHS”), which operates the Indian Health Service (“IHS”). (Doc. 1 at 1; Doc. 35-2 at 1, 6.) On February 10, 2014, Dr. Sarrai began working as a contract physician at the Acoma-Canoncito-Laguna Service Unit (“ACLSU”), an IHS service unit in Acoma, New Mexico. (Doc. 35 at 4; Doc. 35-1 at 2; Doc. 35-2 at 1, 6; Doc. 37 at 1.) HHS fired Dr. Sarrai from this position on May 30, 2014. (Doc. 35 at 4; Doc. 35-1 at 2, 4; Doc. 37 at 1.) However, Dr. Sarrai returned to work as a contract physician at the ACLSU on October 19, 2014, for a term to end on May 2, 2015. (Doc. 35 at 4; Doc. 35-2 at 1-2, 4-5; Doc. 37 at 1.)

         On October 31, 2014, HHS issued a job announcement regarding a vacant Medical Officer position at the ACLSU. (Doc. 35 at 4; Doc. 35-2 at 2, 6-7; Doc. 37 at 1.) Dr. Sarrai was the only applicant for the position. (Doc. 35 at 5; Doc. 35-2 at 2; Doc. 37 at 2.) Dr. Alan Thorne, the ACLSU's Clinical Director, and Fern Detsoi, its CEO, interviewed Dr. Sarrai, and Ms. Detsoi selected her to fill the position. (Doc. 35 at 5; Doc. 35-1 at 6-7; Doc. 35-2 at 2; Doc 35-3 at 2; Doc. 37 at 2.) On December 11, 2014, HHS sent a letter to Dr. Sarrai informing her that she had been “tentatively selected” for the Medical Officer position.[3] (Doc. 35-2 at 6, 9; Doc. 37 at 2.) The letter stated that Dr. Sarrai needed to undergo a background investigation before entering on duty, and advised:

[i]f you are currently employed, please do not submit your resignation to your present employer until you have been informed that you have been cleared through a [background investigation] and that all of your pre-employment forms are satisfactory at which time an entrance on duty date will be established.

(Doc. 35-2 at 9.)

         In January 2015, Wilbert Darwin was appointed Acting CEO of the ACLSU, replacing Ms. Detsoi. (Doc. 35 at 5; Doc. 35-3 at 2; Doc. 37 at 2.) On about February 16, 2015, Michelle Pino was appointed Acting Clinical Director, replacing Dr. Thorne.[4] (Doc. 35-4; Doc. 35 at 5.) As of that date, the ACLSU's management team consisted of Mr. Darwin, Ms. Pino, Administrative Officer Barbara Felipe, and Acting Director of Nursing Melvina Murphy. (Doc. 35 at 5; Doc. 35-3 at 2.) Mr. Darwin and Ms. Pino did not know that Dr. Sarrai had applied for the vacant Medical Officer position and received a tentative job offer at the time of their respective appointments.[5] (Doc. 35 at 5; Doc. 35-3 at 2; Doc. 35-4 at 3.)

         In late January or early February 2015, Mr. Darwin learned that the ACLSU wanted to hire a Medical Officer and that Dr. Sarrai had applied for the position. (Doc. 35 at 6; Doc. 35-3 at 2; Doc. 37 at 3.) He asked Ms. Pino to review the applicant pool and provide the management team with a recommendation. (Doc. 35-3 at 2.) Ms. Pino reviewed the applicant pool and Dr. Sarrai's prior history. (Doc. 35-4 at 3-4.) Ms. Pino and “the management team” told Mr. Darwin that Dr. Sarrai was the only candidate for the position, and that she had a history of “patient and staff complaints” related to “hostility in the workplace; verbal outbursts and threats; unprofessional behavior; and the failure to comply with facility policies/procedures.”[6] (Doc. 35-3 at 2; Doc. 35-4 at 4.)

         Mr. Darwin declared that he “decided to make no selection” for the vacant Medical Officer position and to re-advertise it.[7] (Doc. 35-3 at 3.) He gave two reasons for his alleged decision, i.e., that “the applicant list did not include enough qualified candidates” and that “Dr. Sarrai was not a good fit for the [ACLSU] based on the numerous complaints filed against her.” (Id.) On February 18, 2015, Mr. Darwin sent an e-mail to Doris Edwards, an IHS Human Resources Specialist, in which he stated:

[w]e had another issue with [Dr.] Sarrai . . . today . . . . The Executive Committee leaders reviewed and discussed the issue this afternoon. A recommendation was made. We are requesting the withdrawal/rescinding of Dr. Mona Sarrai's selection for the [Medical Officer] position. How do we proceed? Justification: Hostility in the workforce, poor customer service, not a team player and infringement of courtesy and respect with the nurses. We are also requesting to re-advertise[] for this position[]. Please provide recommendations on how to.

(Doc. 35-2 at 10-11.) On February 19, 2015, Ms. Edwards sent a letter to Dr. Sarrai informing her of “management's decision to rescind the job offer to the position of Medical Officer” at the ACLSU. (Doc. 35-2 at 3, 12.) Dr. Sarrai continued to work at the ACLSU as a contract physician until July or August 2015. (Doc. 35-3 at 4; Doc. 35-4 at 4; Doc. 41-2 at 5.)

         Dr. Sarrai contacted an HHS regional EEO office to initiate pre-complaint counseling on February 21, 2015. (Doc. 35 at 6; Doc. 35-5; Doc. 37 at 4.) On April 1, 2015, Dr. Sarrai filed a formal complaint with HHS alleging that the agency had discriminated against her on the bases of color (white), national origin (Tunisia), and sex (female). (Doc. 35-6 at 1-2.) In her formal complaint, she stated: “I believe I am being harassed at work by administration and especially Michelle Pino and Wil Darwin because they severed my contract in summer and now they are rescinding my position.” (Id.) HHS identified her claims as follows: (1) “[f]rom February 2014 through May 2014, [Dr. Sarrai] alleged she was harassed because staff and the Director challenged her orders and patient care decisions, ” and (2) “[o]n or about February 20, 2015 [Dr. Sarrai] was informed her selection for a full time permanent position had been rescinded.” (Doc. 35-7 at 1.) HHS dismissed these claims on June 5, 2015, and Dr. Sarrai filed an appeal with the U.S. Equal Employment Opportunity Commission (“EEOC”) on July 2, 2015. (Doc. 35-7 at 1, 3; Doc. 35-8 at 1; Doc. 37-5 at 1.) The EEOC expanded the scope of Dr. Sarrai's first claim to include the early contract termination in 2014, affirmed the dismissal of the first claim, and reversed and remanded the dismissal of the second claim. (Doc. 37-5 at 3-4.) On remand, HHS issued a final agency decision on September 9, 2016, which indicated that Dr. Sarrai had the right to file a civil action in federal court. (Doc. 35-11.)

         In her Complaint for Employment Discrimination filed in this Court on November 29, 2016, Dr. Sarrai alleges that HHS discriminated against her on the bases of race, sex, and national origin in violation of Title VII “by subjecting her to a hostile work environment and rescinding her selection to the position of Medical Officer.” (Doc. 1 at 3-4.) In the motion now before the Court, HHS seeks summary judgment as to all of Dr. Sarrai's claims. For the reasons discussed below, the Court grants the motion.

         II. ANALYSIS

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999); Fed.R.Civ.P. 56(a). “A dispute is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a fact is material when it might affect the outcome of the suit under the governing substantive law.” Bird v. W.Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016). Only material factual disputes preclude the entry of summary judgment. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).

         The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). If the movant carries this initial burden, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant.” Id. at 671. If the nonmovant demonstrates a genuine dispute as to material facts, the Court views the facts in the light most favorable to him. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). However, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         Dr. Sarrai brings her claims pursuant to Title VII, which provides that it is unlawful for an employer to “discriminate against any individual with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). Title VII supports both hostile work environment claims, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and claims based on “discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire[.]” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

         A. Dr. Sarrai's Hostile Work Environment Claims

         HHS argues that it is entitled to summary judgment on Dr. Sarrai's hostile work environment claims for three reasons, i.e., that: (1) Dr. Sarrai failed to exhaust her administrative remedies as to these claims because she abandoned them during the administrative process; (2) the claims are time barred because Dr. Sarrai failed to seek EEO counseling within 45 days of her May 2014 termination; and, (3) the claims fail on their merits. (Doc. 35 at 18-23.)

         As an initial matter, the Court must address the scope of Dr. Sarrai's hostile work environment claims. HHS construes these claims as encompassing only Dr. Sarrai's work environment during her first contract term from February to May 2014. (Doc. 35 at 18-21; Doc. 41 at 12.) Dr. Sarrai, on the other hand, claims that the same hostile work environment resumed when she returned to the ACLSU in October 2014, and continued up to and including the rescission of HHS' tentative job offer to her in February 2015. (Doc. 37 at 16-18.)

         The Complaint and the record evidence support Dr. Sarrai's construction of her hostile work environment claims. In her Complaint, Dr. Sarrai alleges that, before HHS rescinded its job offer to her, Ms. Pino “subjected [her] to a hostile work environment.”[8] (Doc. 1 at 2.) At her deposition, Dr. Sarrai testified that the alleged hostile work environment “continued” to “the later period” she worked at the ACLSU. (Doc. 37-1 at 6.) Finally, in her formal EEO complaint file-stamped April 7, 2015, Dr. Sarrai stated, “I believe I am being harassed at work by administration and especially [Ms.] Pino and [Mr.] Darwin because they severed my contract in summer and now they are rescinding my position.” (Doc. 35-6 at 2.) The Court will therefore analyze HHS' motion in light of Dr. Sarrai's allegations that she was subjected to a hostile work environment from February 2014 to at least February 19, 2015.[9]

         1. Whether Dr. Sarrai Abandoned her Hostile Work Environment Claims

         HHS first argues that Dr. Sarrai abandoned her hostile work environment claims because she submitted a statement in support of her EEOC appeal that did not address these claims. (Doc. 35 at 20.) HHS also contends that Dr. Sarrai abandoned these claims because she failed to provide specific dates and information that HHS apparently requested during its initial investigation of her formal complaint. (Doc. 35-7 at 2; Doc. 41 at 12.) HHS concludes that, because she abandoned these claims, Dr. Sarrai failed to exhaust her administrative remedies regarding them. (Doc. 35 at 15-16 (citing Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993) (“[A] complainant who abandons his or her claim before the agency has reached a determination . . . cannot be deemed to have exhausted administrative remedies.”).[10]) In response, Dr. Sarrai contends that she “appealed her hostile work environment claim[s] to the EEOC, ” which investigated and decided these claims. (Doc. 37 at 15.)

         The Court finds that Dr. Sarrai has demonstrated a genuine issue of material fact regarding whether she pursued her hostile work environment claims to the conclusion of the administrative process. HHS contends that Dr. Sarrai did not appeal the agency's dismissal of these claims to the EEOC. However, in support of this contention it attached only the cover letter accompanying Dr. Sarrai's Notice of Appeal to the EEOC and the first page of her counsel's three-page Statement in Support of Appeal, [11] neither of which definitively proves the point. (Docs. 35-8, 35-9.) Then, the EEOC clearly did consider and address these claims in its decision. (Doc. 37- 5 at 3.) Further, that Dr. Sarrai failed to provide all of the information HHS requested during its investigation of her formal complaint is something less than abandonment; the record reflects that she did respond to the agency's request, albeit incompletely. (Doc. 35-7 at 2.) Finally, as noted above, Dr. Sarrai includes the rescission of HHS' job offer to her in her hostile work environment claims, and it is beyond dispute that she exhausted her administrative remedies as to that act. (Docs. 35-5 to 35-11.) For these reasons, the Court denies HHS' motion for summary judgment on Dr. Sarrai's hostile work environment claims on the basis that she abandoned these claims during the administrative process.

         2. Whether Dr. Sarrai Timely Sought EEO Counseling regarding her Hostile Work Environment Claims

         Next, HHS correctly observes that Dr. Sarrai may not pursue a Title VII claim based solely on incidents that occurred from February to May 2014, because to do so she would have had to seek EEO counseling within 45 days of May 30, 2014. (Doc. 35 at 21.) However, Dr. Sarrai is not pursuing such a claim. Rather, she permissibly relies on alleged hostile acts that began during her first contract term and continued through February 2015, after which she timely initiated EEO counseling on February 21, 2015. (Doc. 35-5; Doc. 37 at 16-17.) As the Tenth Circuit explained,

[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. Thus, the unlawful employment practice cannot be said to occur on any particular day. Rather, it takes place over time, and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Consequently, it does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

Hansen v. SkyWest Airlines, 844 F.3d 914, 923 (10th Cir. 2016) (internal quotation marks and citations omitted); see also Nat'l R.R. Passenger Corp., 536 U.S. at 113 (an employee may rely on prior acts-even discrete acts that would not be actionable because they are time barred-as evidence in support of a timely claim).

         In its reply, HHS suggests that Dr. Sarrai cannot rely on acts that occurred during both of her contract terms to establish a single hostile work environment, citing cases for the proposition that there is no single hostile work environment where a plaintiff transfers from one department to another. (See Doc. 41 at 12-13.) However, the cases HHS cites are inapposite. Although there is a gap of about four months between Dr. Sarrai's two contract terms, HHS points to no evidence that she transferred departments or was otherwise working in a different place or was subjected to harassment that was different in type, frequency, and perpetrator.[12] See Hansen, 844 F.3d at 923 (to determine whether particular acts are part of same actionable hostile work environment, courts consider non-exclusive factors including whether acts are “related by type, frequency, and perpetrator” and occurred “when the employee was working in the same place”).

         The Court finds that HHS has failed to demonstrate the absence of a genuine issue of material fact regarding whether Dr. Sarrai can properly rely on acts that occurred during both of her contract terms to establish a single hostile work environment. For these reasons the Court will deny HHS' motion for summary judgment on Dr. Sarrai's hostile work environment claims on the basis that she did not timely seek EEO counseling.

         3. The Merits of Dr. Sarrai's Hostile Work Environment Claims

         Finally, HHS challenges Dr. Sarrai's hostile work environment claims on their merits. For a hostile environment claim to survive summary judgment,

a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's ...

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