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granting summary judgment for defendant because of plaintiff's failure to meet employer's expectations where plaintiff submitted positive performance evaluations from prior years but reviews closer to termination were marginal
Summary of this case from Perry v. City of IndianapolisOpinion
No. 1:03-cv-0719-JDT-TAB.
June 28, 2005
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This matter is before the court on the summary judgment motion filed by Defendants, Prison Health Services, Inc ("PHS") and Eke Kalu, M.D. They contend that they are entitled to judgment as a matter of law on Plaintiff, Shaukat Kahn's claims of discrimination and breach of contract. For the reasons discussed in this entry, the court agrees.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is only to be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court examines the pleadings and the proof as presented in depositions, answers to interrogatories, admissions, and affidavits made a part of the record. First Bank Trust v. Firstar Information Services, Corp., 276 F.3d 317 (7th Cir. 2001). It also draws all reasonable inferences from undisputed facts in favor of the non-moving party and views the disputed evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). However, the non-moving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather he must go beyond the pleadings and support his contentions with properly admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Only competing evidence regarding facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). And, if the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment is properly granted to the moving party. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
In this case the Defendants followed Local Rule 56.1 and set forth, as a section of their supporting brief, a "Statement of Material Facts Not in Dispute," supported by references to documents, affidavits and deposition testimony submitted in support of the motion. In response, Kahn conceded the accuracy of all but three of the thirty-seven numbered paragraphs which made up Defendants' Statement of Facts Not in Dispute. However, Kahn fails to set forth any citation to documents, affidavits or deposition testimony to support his contention that, as to those three factual paragraphs, there remains a material dispute. While the court can assume from other portions of the brief some of the basis for Kahn's challenge of those facts, the failure to identify the basis for disputing those facts, within the required section of the response brief entitled "Statement of Material Facts in Dispute" is both ineffective argument and violative of the local rules. Local Rule 56.1(e) indicates that "the Court will assume the facts as claimed and supported by admissible evidence by the moving party area admitted to exist without controversy, except to the extent that such facts: are specifically controverted in the opposing party's `Statement of Material Facts in Dispute' by admissible evidence; are shown not to be supported by admissible evidence; or, alone, or in conjunction with other admissible evidence, allow reasonable inferences to be drawn in the opposing party's favor which preclude summary judgment."
II. FACTUAL BACKGROUND
PHS is a private contractor which provides diagnostic treatment and clinical medical services to the Indiana Department of Corrections ("IDC"). Kahn, born in Pakistan and a member of the Sunni sect of the Islamic faith, joined PHS as a physician in 1999. He signed no written contract of employment with PHS and testified at deposition that he accepted a verbal offer of employment along the lines of "you can come and join us, and if you don't like it, you can leave us." He received an employee handbook and an assignment to the Plainfield Correctional Facility (the "Facility"), where he worked until he was terminated in April of 2002. Gene Saulman was the Health Care Administrator at the Facility and Kahn's on site supervisor until October of 2001, after which Jeff Rogers took Saulman's place. Richard Dull was the PHS Area Director and Dr. Eke Kalu was the Midwest Regional Medical Director during the relevant time periods.
Shortly after September 11, 2001, the Indiana Department of Corrections revoked Kahn's Facility gate privileges and barred him from the premises based upon security concerns, allegedly labeling him a potential terrorist. Dr. Kalu told others at the Facility that he did not believe it was possible that Dr. Kahn was a terrorist. Kahn's privileges were reinstated six weeks later and he returned to the Facility. He was paid by PHS for the six weeks he was off. When he returned he discovered that he had been replaced during that time period by a doctor from West Africa. Kahn believes that Dr. Kalu favored African doctors over those of Kahn's religion or race.
Kahn stated in deposition that he was not sure what was meant by the term "race" but assumed he would be considered Asian.
Dr. Kahn claims that during the fall and winter of 2001 and Spring 2002, he and another doctor, Dr. Mohammed Tavasolli, became critical of PHS for cutting corners financially with respect to the provision of medical services to the inmates. After that, Kahn claims that he was harassed and criticized by Rogers and Dull when he grew a beard during the Muslim holy time of Rammadon. Specifically, he claims these two supervisors made disparaging remarks about the Islamic religion, including the following: 1) "Why you come all of the time with a long beard, which looks very unhygienic?" 2) "What kind of a strange religion is Muslim(sic)?" 3) "Why your hair too long — you didn't shave?" 4) "What a strange religion is Islam?" Kahn also takes issue with Dr. Kalu criticizing him for not getting along with another doctor, when that was not the case.
Dr. Mohammad Tavassoli is a Muslim as well. He was also a plaintiff in this case, alleging race and religious discrimination, until an agreement was reached between the Defendants and the trustee for Tavassoli's bankruptcy estate, which resolved the dispute between them.
Beginning in March of 2002 PHS issued a number of memos critical of Dr. Kahn, Dr. Tavassoli and others at the Facility. A disciplinary memo dated March 6, 2002, criticized Dr. Kahn and Dr. Tavassoli for not being able to work together without constant conflict and disagreement. The memo indicated that each had been counseled numerous times regarding their conduct and that this memo was a final warning that they must conduct themselves professionally at all times. On April 16, 2002, Rogers sent a memo to the five members of the Facility leadership team, which included Dr. Kahn and two other doctors. The memo found fault with the entire team for not showing more enthusiasm, initiative and leadership. On that same day Rogers issued a disciplinary memo to Kahn regarding illegible documentation and the need for the same to be corrected immediately. Three days later, another memo went out to Kahn from Rogers. In this memo Rogers asked Kahn to respond in writing to an allegation made by the Indiana Department of Corrections Medical Director that Dr. Kahn declined a treatment option for an offender based upon cost. Then on April 24, 2002, the day following a meeting called by Dr. Kahn, Rogers issued another memo to Dr. Kahn explaining that it had been entirely inappropriate for Dr. Kahn to summon to the meeting the IDC Facility Superintendent. The memo pointed out that the IDC was a client and that outside of regularly scheduled or client requested meetings it was not appropriate to require the Superintendent to attend a PHS meeting. When Rogers called Kahn in to receive, review and sign these last few unfavorable memos, Kahn refused to sign them. He testified at his deposition that he asked to receive a copy of each to have a chance to review them on his own before he signed them, but was denied the same.
On April 25, 2002, Mr. Dull issued a memorandum to Kahn indicating that he was suspended effective immediately for unprofessional behavior. The memo further states that Kahn would be contacted subsequently to discuss his employment status. According to the testimony of Rogers, on April 25 he and Dull considered and recommended that Kahn be terminated. Also, on the April 25, Dr. Kahn's attorney wrote a letter to the PHS Director of Personnel at its home office in Tennessee. The letter suggested that Kahn had been harassed as a result of his religious beliefs and because he had been outspoken with regard to inadequate patient care. The letter also asserted, without discussion, that Dr. Kalu favored doctors form Nigeria and West African nations over Kahn and others, and concluded with a demand that such practices cease immediately. On April 30, 2002, Dr. Kalu sent a letter to Dr. Kahn indicating that his employment with PHS was terminated.
III. ANALYSIS
One issue needs to be addressed at the start. Throughout his pleadings, his briefs and his deposition, Dr. Kahn suggests that many of his problems at PHS were the result of his being critical of the overall patient care being provided. While such concern over the quality of care provided is admirable, it has nothing to do with the case at bar. Plaintiff pleads claims of religious harassment, race and religious discrimination and retaliation, in addition to his claim of breach of contract. If PHS terminated his employment because he was critical of their policies regarding the cost of medical treatment provided to offenders, that entitles him to no relief in this case.
A. Religious Harassment
Kahn's evidence supporting his claim of religious harassment is limited to the statements made by Rogers and Dull regarding what they perceived to be peculiarities with the Islamic religion and its customs, including criticism of Dr. Kahn regarding the hygiene associated with growing facial hair during the course of Rammadon. Title VII of the Civil Rights Act protects employees against harassment endured as a result of a person's race, religion, gender or other protected status. "Harassment" in the context of our civil rights laws involves conduct that unreasonably interferes with a person's work performance or creates an intimidating, hostile or offensive work environment. Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998). The offensive conduct must be severe and pervasive enough that both the individual at issue subjectively sees it as abusive and a reasonable person would also find it unbearably hostile. Id.
While the comments by Rogers and Dull show a lack of tact and sensitivity for a person's beliefs, they do not seem particularly hostile on their face. Discussions or comments on race, religion or gender are not barred from the workplace by Title VII. It is the intimidation or persecution of individuals in the workplace through such religion, race or gender related speech that Title VII forbids. Calling a religion curious or strange without some further contextual concern, is not objectively hostile. Questioning the hygiene associated with facial hair in an environment where medical treatment is being provided, may or may not be a legitimate health concern, but it does not rise to the level of intimidation or persecution. Kahn was apparently not offended enough by the comments to pursue redress through the company at the time, though PHS provides its employees an opportunity to so, which leads the court to question whether he truly believed his environment to be hostile or unbearable. However, even if the court were to find that Kahn believed he was in a hostile environment, application of that part of the two-pronged approach which requires an objectively reasonable person to see such conduct or speech as creating a hostile environment leaves the harassment claim without merit. Considering the severity, frequency and nature of the alleged offensive speech and conduct, the court simply does not find it to be pervasive enough for a reasonable person to find the workplace to be hostile. See Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d 1014, 1033-1034 (7th Cir. 2003).
B. Race or Religious Discrimination
Kahn's evidence to support a claim of race (or national origin) or religious discrimination is not much better. In addition to the comments with respect to his religion and facial hair made by Rogers and Dull, Kahn asserts that Dr. Kalu favored African or West African doctors. This assertion is made on the basis of Kahn's own broad speculation and not on the basis of any persuasive evidence. When he returned following the six week period during which his facility privileges were denied by the state, there was an African doctor who had replaced Kahn. This appears to be the foundation for Kahn's belief. Without a discussion of why, Kahn also argues that the assignments Kalu gave to African doctors working for PHS at all facilities were generally better than those given to others.
In his response brief Kahn points out that his first supervisor, Mr. Saulmon, also made a comment about Muslim's believing in a God and a Prophet. However, in his deposition Kahn indicated he did not consider the comment to be critical of his faith because it was made in the context of discussions comparing Islam to the Hindu religion practiced by another doctor.
To establish a prima facie case of discrimination, Kahn must show that: (1) he is a member of a protected class; (2) he was meeting his employer's legitimate expectations; (3) PHS took an adverse employment action against him; and (4) PHS treated similarly situated individuals outside of the protected class more favorably. Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004). Defendants do not challenge elements one or three. However, they do maintain that at the time Kahn was let go from his position, he was several memos deep into dissatisfactory performance and/or discipline and therefore not meeting PHS expectations. Further, they argue that Kahn has offered no examples of others who are similarly situated and not a member of his protected class (be it Pakastani, Asian or Muslim) who were treated more favorably.
Indeed, Plaintiff's case does fail with regard to elements two and four. Supervisor Rogers was clearly disturbed at the level of overall morale at the Facility. But it is also clear that Rogers was particularly disturbed when Kahn demanded that the client superintendent at the facility attend a meeting Kahn was calling. This, in combination with Kahn's illegible writing and poor record keeping pushed Rogers to the point that a suspension memo was drafted. Even more evident is Rogers's frustration with Kahn's refusal to sign off on any of the disciplinary memos he was given. Kahn's failure to acknowledge the discipline or correct the behavior pushed PHS to take the actions it did.
In an attempt to show that he was meeting his employer's expectations, Kahn submits some past performance evaluations. His performance review for the year 2000 was good; however, his review for 2001 left much to be desired with an overall evaluation of "Marginal". Moreover, when a district court looks at the question of whether a terminated employee was meeting an employer's legitimate employment expectations, the focus is not the employee's past performance but whether the employee was performing well at the time of the termination. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002). In short, the court does not believe that a jury could reasonably conclude that Kahn was meeting his employer's expectations at the time he was terminated.
Even if the court were to allow the Plaintiff to pass on element two of his prima facie case, the fourth element clearly remains unsupported. Kahn offers no examples of others who were treated more favorably. In fact, what Kahn does offer is the inadmissable statement of a Dr. Triston Stronger who, in response to interview questions from Kahn's counsel, criticizes Dr. Kalu and PHS with regard to the quality of care allowed to be given to the offenders and talks about PHS getting rid of doctors who took issue with the standard of care provided. Even if it were admissible, Dr. Stronger's interview, offers nothing to support a claim of religious or race discrimination. It supports the underlying theme of Kahn's complaint that he was discriminated against because he took issue with the quality of the medical care he was allowed to provide to offenders. That is a claim for another court, agency or professional disciplinary board. It does not constitute a violation of the federal civil rights laws.
Evidence relied upon to support or counter a summary judgment motion must be of the type admissible at trial. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). This transcript of an interview conducted by legal counsel is not admissible. Dr. Stronger is not under oath and the bulk of his responses to questions are based upon his limited experience at a totally different IDC correctional facility.
C. Retaliation
Under Title VII it is an unlawful employment practice for an employer to discriminate against any of its employees for filing a charge of discrimination, testifying, assisting or participating in a proceeding, hearing or investigation which has a purpose of addressing potential illegal discrimination. 42 U.S.C. § 2000e-3(a). The protection offered by this section has been interpreted to include protection from retaliation for complaining of or opposing impermissible discrimination. Fine v. Ryan Int'l Airlines, 305 F.3d 746, 751 (7th Cir. 2002). The letter sent by Plaintiff's counsel to PHS headquarters dated April 25, 2002, is the protected activity at issue in this instance. Dr. Kalu's letter to Kahn, dated five days later, in which he tells Kahn that he is being terminated stands as the only additional evidence to support Kahn's claim that his termination was retaliatory.
Kahn argues that the April 25 letter from his counsel, complaining of potential civil rights violations in the form of harassment and discrimination (as well as mentioning his clients' concerns over potential malpractice claims because of cost cutting with regard to proper diagnostic procedures) prompted Dr. Kalu's letter of termination. Plaintiff has pointed to no other instances of record where Kahn made complaints to PHS regarding discrimination or harassment prior to his suspension. His counsel's letter to PHS headquarters was written on behalf of both Kahn and Dr. Tavassoli. Tavassoli was also terminated by Dr. Kalu. Defendants maintain that the decision to terminate Kahn was the result of the recommendation of Rogers and Dull on April 25 and imply, without supporting affidavit testimony, that the April 25 letter from counsel to PHS headquarters was unknown to Kalu or those participating in the termination decision.
Though Kahn argues the retaliation was for his (his attorney's) complaints of civil rights violations, he also alleges in his complaint and discusses in his deposition testimony the fact that he and Dr. Tavassoli were discharged because they were the doctors most critical of the level of care being provided by PHS.
As it is with a simple discrimination charge, a plaintiff has two ways to go about pursuing a retaliation charge as well. The Court of Appeals for the Seventh Circuit detailed those two avenues in Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir. 2002). He may elect to proceed under the direct method, which requires either an admission of guilt by the defendant or circumstantial evidence substantial enough that if believed would prove discriminatory motive without reliance on inference or presumption. Stone, 281 F.3d at 644. If successful in this effort, the plaintiff is entitled to summary judgment. Id. The second alternative is for the plaintiff to pursue the indirect method of proving retaliation based upon an adaptation of the McDonnell Douglas burden shifting paradigm. Id. Under the indirect method at the first stage a plaintiff must show that after engaging in statutorily protected conduct only he, and not other similarly situated employees who did not engage in protected conduct, was subject to an adverse employment action despite performing his job in a satisfactory manner. Id. If the plaintiff makes this primary showing and the defendant offers no evidence in response, the analysis ends and plaintiff is entitled to a judgment. Id. However, if the employer presents unrebutted evidence of a noninvidious reason for the adverse action, then it is entitled to summary judgment. Id.
In this instance, Kahn relies exclusively on the temporal proximity of his counsel's letter and Dr. Kalu's letter terminating him. He notes no other evidence of record which would support the conclusion he is advocating. If Kahn is seeking to pursue the direct method of proving retaliation he fails. There is no evidence tantamount to an admission on the part of PHS and temporal proximity alone is insufficient to establish a question of fact. Wyninger, 361 F.3d at 981. Therefore, the court must examine whether or not Kahn has put forth a prima facie case under the indirect method. PHS says he has not because he has failed to establish any of the required elements other than his termination being an adverse employment action. The court agrees that Kahn has not established a prima facie case, because he has failed to demonstrate that he was performing up to the expectations of his employer or that others similarly situated who did not complain of discrimination were treated more favorably.
First, to be clear, there is no question that a formal letter complaining of discrimination is more than enough to constitute protected activity. Barber v. CSX Distribution Serv., 68 F.3d 694, 702 (3rd Cir. 1995). The fact that it was written by an attorney for Kahn instead of Kahn himself makes no difference either. Cf., Harter v. Univ. of Indpls., 5 F. Supp. 2d 657, 661 (S.D. Ind. 1998). However, PHS maintains that Kahn did not engage in any protected activity because the letter from his attorney was not sent until after Kahn had already been suspended and steps had been taken to begin the termination process. While it may be fair for this court to assume that a letter dated April 25, 2002, and sent from Indiana to Tennessee did not arrive on the same day it was sent, without more evidence the court will not jump to the conclusion urged by PHS, that the letter was not received until after the decision to terminate Kahn was made. There is simply no evidence of record to that effect, despite the relatively easy manner in which such evidence might be adduced, for example an affidavit from Dr. Kalu indicating that he was not aware of the April 25 letter or Kahn's complaints of harassment and discrimination when he drafted and sent the termination letter to Kahn. Rather than affidavit testimony of that sort, PHS submits the affidavit of Mr. Rogers indicating that he and Mr. Dull recommended Kahn's termination and took steps to start the process on April 25, following his suspension. Dr. Kalu appears to be the ultimate decision maker here and there is no evidence of record regarding what he knew about the complaints of discrimination or when. Therefore, there is at least a question of fact as to whether Dr. Kalu knew of the protected activity prior to issuing the letter of termination.
Unfortunately for Kahn, the same can not be said with respect to his performing his job satisfactorily. For the same reasons expressed in the court's earlier discussion of the discrimination claim, it finds that no reasonable jury could conclude that Kahn was satisfying his employer's reasonable expectations during the time period leading up to his termination. In addition, by Kahn's own admission, the most apparent reason for the actions taken by PHS was his and Tavassoli's constant criticism of PHS for failing to provide better medical treatment to offenders because of the costs of such treatment. In any event, Kahn can not show that he was performing his job at the level expected by PHS and PHS offers ample evidence to support its noninvidious reason for firing him.
C. Breach of Contract
Kahn argues that the employee handbook amounted to a contract of employment between he and PHS. Indiana law is to the contrary. The presumption of "at will" employment is strong in Indiana. St. John v. Town of Ellettsville, 46 F. Supp. 2d 834, 841 (S.D. Ind. 1999). Kahn's own testimony that he joined PHS on the representation that he could leave or stay after deciding if he liked the work, does nothing to support a contrary conclusion. Under Indiana law, there are three exceptions to employment at will: 1) an employment contract supported by adequate consideration; 2) a public policy exception for instances where a clear statutory right or duty is contravened; or 3) application of the promissory estoppel doctrine when an employee relies to his detriment upon a specific promise made to him by the employer. Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712, 718 (Ind. 1997). None of these three exceptions apply here.
In this case, there was no written employment contract or even an agreement on the term of employment. The employee handbook specifically states that "[I]t is not meant to be a contract and is subject to change without notice." Furthermore, Kahn has not suggested that he provided any independent consideration adequate to support a contract other than for at will employment. Compare, Speckman v. City of Indpls., 540 N.E.2d 1189 (Ind. 1989) (employee entered into a settlement agreement releasing employer from liability on an independent claim). Nor has he argued that promissory estoppel should apply, like it might if he had given up assured employment with another employer to accept the PHS offer or moved a long distance to accept a job described as continued employment. Compare, Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118 (Ind. 1994). And, there is certainly no allegation that Kahn was terminated for exercising a statutory duty or right. In short, Kahn's employment was undoubtedly at will; therefore, no breach of contract occurred.
IV. CONCLUSION
From the briefs and his deposition testimony, it is clear that Dr. Kahn suspects that he and Dr. Tavassoli were singled out for discipline, and eventually termination, because they were outspoken critics of the level of medical care PHS was providing to offenders in the IDC. His allegations and arguments regarding race or religious discrimination and retaliation are both unsupported by the evidence and seemingly advocated more as a platform from which to launch his gripe that PHS wanted him gone because he strove to obtain better and more expensive care for residents of the Facility. Again, while his intent may be admirable, this is not the venue and Title VII is not the statutory foundation for such a fight. Without a written contract, like most employees, Kahn was an employee at will subject to the whims of his employer.
Defendants' Motion For Summary Judgment is GRANTED. Final judgment will be separately entered in favor of Defendants.
ALL OF WHICH IS ORDERED.