Opinion
CIVIL ACTION No. 01-2297-KHV
March 20, 2003
MEMORANDUM AND ORDER
Tatsuo Tomita, M.D. brought suit against University Pathology Association ("UPA") and Barbara Atkinson, M.D., for breach of employment contract, retaliation and discrimination on account of race and national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. On October 9, 2002, the Court granted summary judgment in favor of defendants on plaintiff's claims of discrimination and breach of contract. See Memorandum And Order (Doc. #76). This matter comes before the Court on UPA And Atkinson's Motion For Summary Judgment On Retaliation Claims (Doc. #81) filed November 6, 2002. For reasons stated below, the Court sustains defendants' motion in part.
Plaintiff originally sued UPA, Dr. Atkinson, the University of Kansas Medical Center and Deborah E. Powell, M.D. The parties, however, agreed to dismiss KUMC and Dr. Powell.
Defendants' summary judgment motion did not address plaintiff's retaliation claims. At the status conference on October 10, 2002, the Court granted defendants leave to file a motion for summary judgment on the retaliation claims. See Minute Sheet (Doc. #77).
I. Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. See Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II. Facts From Previous Order
In its prior summary judgment ruling, the Court found that the following facts were either uncontroverted or construed in a light most favorable to plaintiff:
Both parties incorporate their fact statements from the prior summary judgment motion. See University Pathology Association And Barbara Atkinson, M.D.'s Memorandum In Support Of Motion For Summary Judgment On Plaintiff's Retaliation Claims ("Defendants' Memorandum") (Doc. #82) filed November 6, 2002 ¶ 16; Plaintiff's Memorandum In Opposition To UPA And Atkinson's Motion For Summary Judgment On Retaliation Claims ("Plaintiff's Response") (Doc. #86) filed December 16, 2002 ¶ 128. Accordingly, the Court incorporates the factual record from its previous order.
Plaintiff is an Asian man from Japan. From 1977 through March 30, 2002, he worked as professor of pathology for UPA and the Kansas University Medical Center ("KUMC"). During his employment, the following persons supervised plaintiff:
Defendants assert that UPA and KUMC jointly employed plaintiff, in that plaintiff provided academic and teaching services to KUMC for half his salary and provided clinical services (i.e. patient health care) to UPA for the other half. See University Pathology Association And Barbara Atkinson, M.D.'s Memorandum In Support Of Motion For Summary Judgment ("Defendants' Memorandum") (Doc. #58) filed June 14, 2002. Defendants provide no record support for their assertion, so the Court includes this information for background purposes only.
A. Plaintiff's Performance
From 1975 through 1999, plaintiff performed his teaching, clinical, service and research assignments satisfactorily or better. During this time, plaintiff's supervisors did not give him an unfavorable review, nor did they discipline him for poor performance. Plaintiff's clinical assignment during this time was to attend autopsies for three months per year. From 1978 to 1983, plaintiff performed administrative duties as examination coordinator of a sophomore pathology course. Plaintiff did not perform administrative duties after 1983. From 1975 through 1999, plaintiff's supervisors did not criticize the amount of plaintiff's teaching or clinical assignments, and they did not require plaintiff to perform additional administrative duties or obtain grant funding for his research. During this time, plaintiff did not refuse a teaching, clinical or service assignment from his supervisors.
From 1976 through 1997, the UPA presidents evaluated plaintiff as part of his reappointment to the medical staff. In each evaluation, the president rated plaintiff as performing satisfactorily.
Plaintiff received grants to fund his research through 1992. After 1992, he had enough grant money remaining to fund his research through 1994. Beginning in 1995, plaintiff funded his research with his own money.
Plaintiff's supervisors contend that they perceived that plaintiff performed poorly, and that they paid him a lower salary than other UPA physicians because (1) plaintiff spent 20 hours or less, per year, teaching medical students and residents; (2) until April 2000, plaintiff's only clinical responsibility (i.e. revenue generating patient care activity) was to be on call to supervise autopsies for up to three months per year; and (3) plaintiff spent the vast majority of his time on unfunded research studies which provided no economic or political benefit to KUMC or UPA.
UPA does not have an hourly teaching requirement for pathologists. The teaching expectation of each faculty member depends on his or her job.
Plaintiff's supervisors assert that plaintiff contributed less to UPA than most other physicians. Dr. Anderson states that plaintiff's contributions were "as low or lower than any other physicians within UPA." Affidavit Of Dr. H. Clarke Anderson ("Anderson Affidavit") ¶ 7, Defendants' Exhibit 1. Dr. Cuppage describes plaintiff as "my single biggest problem, because he was a poor performer who did not relate to people well." Affidavit Of Dr. Francis "Pete" Cuppage ("Cuppage Affidavit") ¶ 4, Defendants' Exhibit 4. Dr. Damjanov states that plaintiff "contributed less to UPA than almost any other physician within the organization." Affidavit Of Dr. Ivan Damjanov ("Damjanov Affidavit") ¶ 3, Defendants' Exhibit 5. Dr. Fishback concurs that plaintiff's "contributions to UPA were as low or lower than any other physicians within UPA." Affidavit Of Dr. James Fishback ("Fishback Affidavit") ¶ 5, Defendants' Exhibit 6.
During the 1990s, plaintiff's sole responsibilities were: (1) presenting five one-hour lectures per year; (2) giving 45 hours of group presentations per year; and (3) supervising 20 to 35 autopsies per year. From 1995 through 1999, the only revenue which plaintiff generated for UPA was through attending autopsies. During this time, plaintiff did not apply for research funding. Instead, plaintiff funded himself so that he could be free to do what he wanted to do.
In 1991, plaintiff discovered an erroneous diagnosis by Dr. Patricia Thomas. Two years earlier, Dr. Thomas had diagnosed a recurring tumor as interductal papilloma, benign. When the tumor returned in 1991, plaintiff diagnosed it as cystosarcoma phyllodes, intermediate grade. Plaintiff reviewed the biopsy which Dr. Thomas had previously performed and found that Dr. Thomas had mis-diagnosed the patient two years earlier.
On August 20, 1998, UPA president Dr. Bill Jewel completed a medical staff reappointment evaluation of plaintiff. The evaluation form asked whether plaintiff's performance was favorable or unfavorable in several areas including basic medical knowledge, professional judgment, sense of responsibility, clinical competence, technical skill and ability to work with others. Dr. Jewel marked favorable in all areas. In addition, the form asked whether plaintiff had exhibited disruptive behavior or had been the subject of complaints by others. Dr. Jewel answered negative to both questions. Dr. Jewel recommended reappointment for plaintiff without reservation. On May 12, 1999, UPA president Dr. Fishback completed an annual faculty review of plaintiff. Dr. Fishback marked that plaintiff had met expectations. The review indicated that plaintiff's responsibilities included (1) teaching five lectures; (2) teaching two hours of small groups per week, shared with another faculty member; and (3) attending autopsies for three months of the year. Dr. Fishback remarked: "[Plaintiff] continues to work in his laboratory, using his own monies to fund immunohistochemistry research. He has been quite productive in publishing his research, despite lack of grant support." Plaintiff's Exhibit 17 at 2. For the following year, Dr. Fishback proposed that plaintiff revise the surgical pathology gross room manual and supervise residents in the surgical pathology gross room. Dr. Fishback did not set any goals for plaintiff to perform administrative duties or obtain grant funding for his research.
The form allowed only two responses regarding whether the candidate met expectations: yes or no. See Plaintiff's Exhibit 17.
In April 2000, Dr. Atkinson reviewed plaintiff's performance from March 1999 to March 2000. She assessed that plaintiff had met most of her expectations. Dr. Atkinson contends that she provided a low rating for plaintiff because of his low clinical service revenues and inability to obtain research funding. Dr. Atkinson stated in the performance review that:
In evaluating UPA pathologists, Dr. Atkinson considered the following criteria: (1) teaching responsibilities; (2) research responsibilities, including publication; (3) contribution to UPA revenue; (4) clinical service responsibility; (5) administrative responsibility; and (6) service to the institution. In making her evaluations, Dr. Atkinson met with other faculty members and reviewed (1) resident and medical student evaluations; (2) service activities; (3) curriculum vitae; and (4) the faculty member's initial preparation of his or her evaluation. Dr. Atkinson generally included in her evaluation, as goals for the following year, proposed activities and/or responsibilities for the physician.
The review form provided three performance levels: meeting expectations, meeting most expectations and meeting few expectations. Dr. Atkinson initially assessed plaintiff's performance as "meeting expectations" but then lowered the assessment to "meeting most expectations." Dr. Atkinson has completed 27 faculty reviews as president/chairperson. See Affidavit Of Dr. Barbara Atkinson ("Atkinson Affidavit") ¶ 5, Defendants' Exhibit 2. Of those, she assessed that 21 faculty members met expectations, five met most expectations and one met few expectations. See id.
Drs. Damjanov, Fishback, Powell and May have not received grants to fund research at KUMC. The record does not reveal, however, the amount of time said doctors devote to research and/or whether they have applied for grant funding.
With the exception of his limited teaching responsibilities (less than 6 lecture hours per year), and on call supervision of non-legal autopsies for 3 months of each year (requiring approximately 8 autopsies per year), [plaintiff's] principal work had been in unfunded research since 1992. As such [plaintiff's] research efforts did not provide financial or educational benefit to UPA or KUMC. [Plaintiff's] research did not support a close interaction with his colleagues or keep him acquainted with forensic pathology or other pathology procedures generating revenue.
Atkinson Affidavit ¶ 7, Defendants' Exhibit 2. In her deposition, Dr. Atkinson testified that she ranked plaintiff as meeting most expectations because:
he didn't do the revision of the surgical pathology gross room manual or supervision of the residents in the gross room. He did do the autopsy attending but was not doing other clinical service activities. And his job at this point in time was to do only three months a year of autopsy and some medical student and resident teaching and he wasn't doing any clinical activity and he did not have grant support for his research.
Atkinson Depo. at 142:18-143:2, Plaintiff's Exhibit 3. Although Dr. Atkinson did not mention it at her deposition, plaintiff also performed clinical services of "[b]iopsy attending at surgical path. 6 days/month" and "[e]lectron microscopy of surgical materials." Plaintiff's Exhibit 18.
The record does not explain these clinical services.
As part of her review of plaintiff, Dr. Atkinson set the following goals for the next year: (1) teach five lectures; (2) teach small groups two hours per week, unshared with another faculty member; (3) mentor two honor pathology students; (4) obtain grant funding; (5) do one week per month of surgical pathology; (6) attend autopsies three months per year; and (7) learn flow cytometry to back up Dr. Cunningham. See Plaintiff's Exhibit 18. Dr. Atkinson assigned plaintiff to surgical pathology and flow cytometry in order to (1) reacquaint plaintiff with his colleagues; (2) improve plaintiff's skills in forensic pathology procedures; and (3) increase plaintiff's revenue production. Dr. Atkinson planned for plaintiff to re-learn surgical pathology procedures from Dr. Ossama Tawfik and to learn flow cytometry procedures from Dr. Mark Cunningham. Dr. Atkinson did not see any problem with plaintiff's research integrity or scholarship.
Flow cytometry is a chemical/mechanical means of tissue analysis to classify neoplasms, primarily used in the diagnosis of cancer. See Affidavit Of Dr. Mark Cunningham ("Cunningham Affidavit") ¶ 2, Defendants' Exhibit 3.
In March 2001, Dr. Atkinson assessed that plaintiff had met some expectations for the past year. Plaintiff met his teaching and publication goals and seemed dedicated to learning surgical pathology and flow cytometry.
From 2000 to 2002, Drs. Tawfik and Cunningham reported that plaintiff had progressed slowly in learning surgical pathology and flow cytometry procedures. Dr. Tawfik opined that plaintiff's performance in surgical pathology was "substantially slower and poorer than that of most residents." Affidavit Of Dr. Ossama Tawfik ("Tawfik Affidavit") ¶ 7, Defendants' Exhibit 8.
In a recommendation letter dated November 30, 2001, however, Dr. Tawfik recommended plaintiff for a staff position at another medical school, stating that
A few years ago we had a problem in which our surgical pathology staff left the department for political and academic reasons and I was left by myself with a huge responsibility of taking care of commitment to excellent clinical service to our patients and our clinicians. A monumental task that was almost impossible to accomplish without the help of capable individuals on your team. At that time I called on [plaintiff] for his help. Without hesitation, the good man was there for me. Despite his 20 years' [sic] of absence from the surgical pathology arena, he learned quickly and retooled his surgical pathology skills. Gradually over a short period he was signing out all the difficult and challenging cases and became a pro in a short time.
Exhibit E to Affidavit Of Tatsuo Tomita, Plaintiff's Exhibit 2.
In 2001, Dr. Ralph Powell mis-diagnosed a biopsy tissue as anaplastic large cell lymphoma, which Dr. Cunningham erroneously confirmed. When the patient did not respond to treatment for lymphoma, the oncologist requested a re-diagnosis. Upon reviewing the slides which Drs. Powell and Cunningham had viewed, plaintiff correctly diagnosed nasopharygeal carcinoma.
According to Dr. Cunningham, by March 2002 plaintiff functioned at the level of a senior resident in flow cytometry. See Cunningham Affidavit ¶ 3, Defendants' Exhibit 3. He could recognize a benign disease process and could usually recognize a malignant tumor, but he required assistance with classifying malignant tumors. In April 2002, plaintiff missed two significant diagnoses. In addition, technologists frequently had difficulty compiling plaintiff's reports due to his lack of fluency in English and numerous spelling errors.
From May 15, 2000 to the present, Dr. May has supervised the physicians who performed autopsies. Dr. May testified that the number of autopsies varies and that plaintiff's autopsy reports were accurate. See May Depo. at 8:20-23, 17:23, Plaintiff's Exhibit 4. Dr. May also testified that all pathologists in the department make diagnostic errors at some point in time, but that she is not aware of any by plaintiff. See id. at 43:20-23, 41:22-42:2. Dr. Atkinson, on the other hand, testified that Drs. Cunningham, May and Powell did not make diagnostic errors but that plaintiff did. See Atkinson Depo. at 101:21-22, 122:10-11, 134:9-10, 138:6-7, 146:17-22, Plaintiff's Exhibit 3.
Dr. May, director of regional autopsy and forensic service at the University of Kansas School of Medicine, is in charge of assigning physicians to the autopsy on-call schedule. Dr. May testified that she has assigned the same schedule to all participating physicians.
In 2002, Dr. James Cook, a hematologist, complained that Dr. Damjanov had misdiagnosed a lymphoma/leukemia.
B. Other Physicians' Performance 1. Dr. Cunningham
In April 2000, Dr. Atkinson evaluated that Dr. Cunningham had met all expectations for the past year. As a goal for the following year, Dr. Atkinson planned for Dr. Cunningham to publish nine chapters on a disease-related website. Dr. Atkinson does not know whether Dr. Cunningham fulfilled the goal.
In March 2001, Dr. Atkinson again ranked that Dr. Cunningham had met all expectations for the past year. As a goal for the following year, Dr. Atkinson planned for Dr. Cunningham to publish four invited articles and two peer reviewed scientific articles. Dr. Cunningham did not meet this goal. Instead, he published one invited article and one peer reviewed article.
Dr. Atkinson also set other goals for Dr. Cunningham in 2000 and 2001, see Plaintiff's Exhibits 5 and 6, but the record does not indicate whether Dr. Cunningham met them.
In April 2002, Dr. Atkinson again assessed that Dr. Cunningham had met all expectations for the past year.
2. Dr. Fishback
In March 2001, Dr. Atkinson evaluated that Dr. Fishback had met some expectations during the past year. As goals for the following year, Dr. Atkinson planned for Dr. Fishback to put together a work plan to revise a course website and to write at least two articles. Dr. Fishback did not fully meet the website goal. Dr. Atkinson does not know whether he wrote two articles. In March 2002, Dr. Atkinson assessed that Dr. Fishback had met all expectations during the past year. 3. Dr. May
Dr. Atkinson also set other goals for Dr. Fishback, see Plaintiff's Exhibit 8. The record does not indicate whether Dr. Fishback met them.
Autopsy reports should be issued within 30 days, but all pathologists issue reports beyond 30 days. Dr. May issues her reports the latest of all UPA physicians.
In March 2001, Dr. Atkinson evaluated that Dr. May had met all expectations for the past year. As a goal for the following year, Dr. Atkinson planned for Dr. May to publish at least one article in a peer review scientific journal. Dr. May did not meet this goal. In March 2002, Dr. Atkinson assessed that Dr. May had met all expectations for the past year.
Dr. Atkinson also set other goals for Dr. May, see Plaintiff's Exhibit 10, but the record does not indicate whether Dr. May met them.
4. Dr. Patterson
In March 2001, Dr. Atkinson evaluated that Dr. Patterson had met all expectations for the past year. As goals for the following year, Dr. Atkinson planned for Dr. Patterson to (1) begin to plan how to get more lab medicine into the undergraduate curriculum; (2) write and send in grant proposal for rapid chest pain evaluation; and (3) submit and publish papers. Dr. Patterson did not meet these goals. In March 2002, Dr. Atkinson assessed that Dr. Patterson had met all expectations for the past year.
Dr. Atkinson also set other goals for Dr. Patterson, see Plaintiff's Exhibit 12, but the record does not indicate whether Dr. Patterson met them.
In 2001 and 2002, Dr. Patterson did not do as many sign-outs as other faculty members.
The record does not reveal the meaning of sign-outs.
5. Dr. Powell
In April 2000, Dr. Atkinson evaluated that Dr. Powell had met all expectations for the past year. As a goal for the following year, Dr. Atkinson planned for Dr. Powell to explore some additional collaborations, possibly with the pulmonary group. Dr. Powell did not meet this goal.In March 2001, Dr. Powell reported that he had one manuscript in press and three manuscripts in preparation. See Plaintiff's Exhibit 15. Dr. Atkinson assessed that Dr. Powell had met all expectations for the past year.
In March 2002, Dr. Powell stated that he had completed one manuscript and that he had one manuscript accepted for publication and one manuscript in preparation. See Plaintiff's Exhibit 16. Dr. Atkinson assessed that Dr. Powell had met all expectations for the past year. Dr. Atkinson did not know whether the manuscripts listed on Dr. Powell's 2001 evaluation were the same manuscripts mentioned in his 2002 evaluation. In general, Dr. Atkinson expected someone in Dr. Powell's position to prepare one to two papers each year for publication.
C. Salary
For the year beginning July 1, 1999 and ending June 30, 2000, plaintiff was the lowest paid pathologist at UPA. Plaintiff earned $41,568.00. The other pathologists earned as follows:
UPA paid plaintiff's salary based on a year beginning July 1 and ending June 30.
Plaintiff contends that UPA did not return his salary to its pre-sabbatical level when he returned from sabbatical in 1994, but it did so for Dr. Fishback. From 1992 to 1996, plaintiff and Dr. Fishback earned the following salaries:
Year Plaintiff Dr. Fishback 1992-93 $87,237.00 $68,962.00 1993-94 $22,707.00 (sabbatical) $25,830.00 (sabbatical) 1994-95 $42,195.00 $49,762.00 1995-96 $39,969.00 $97,109.00 Memorandum And Order (Doc. #76) at 3-14 (some footnotes omitted).III. Additional Facts
With respect to the current motion, the following facts are either uncontroverted or construed in a light most favorable to plaintiff:
Defendants do not cite record evidence in support of all responses to plaintiff's factual assertions. See Reply Memorandum In Support Of Motion For Summary Judgment On Retaliation Claims By University Pathologists And Barbara Atkinson, M.D. ("Defendants' Reply") ¶¶ 153, 162, 169, 177, 178. The Court does not include assertions which are not supported by proper citations to record evidence. See Rule 56(c), Fed.R.Civ.P.; D. Kan. Rule 56.1(c). Also, the Court does not consider factual assertions which the parties include only in the argument section of their briefs and not in their statements of fact. See, e.g., Defendants' Memorandum at 12. All parties refer to exhibits which are not authenticated or explained by sworn testimony. See Exhibit Q to Tomita Affidavit, Plaintiff's Exhibit 1; Defendants' Exhibit 24. The Court does not consider these exhibits or the factual assertions which they support. See Plaintiff's Response ¶ 141; Defendants' Reply ¶¶ 153, 167.
Beginning sometime in the 1990s, UPA implemented a policy of paying its pathologists at the 50th percentile of the salary published by the Association of American Medical Colleges. During this time, UPA hired new pathologists at the 50th percentile level but paid plaintiff less. In 2000, plaintiff was the second most senior pathologist at UPA. Sometime during 2000, plaintiff learned that despite his tenure, UPA paid him the lowest salary — even lower than new pathologists who had come directly out of residency with no academic publications. Plaintiff believed that UPA paid him the lowest salary because of his race and national origin. Plaintiff was the only professor who did not hold an administrative position with UPA.
The record does not disclose whether UPA paid other pathologists at the 50th percentile level.
Defendants assert that plaintiff was the second most senior in longevity, not in rank, but they provide no record support for this assertion. See Defendants' Reply ¶ 143.
As a factual matter, the parties dispute whether this belief was reasonable. See Plaintiff's Response ¶ 158; Defendants' Reply ¶ 158. Defendants do not request summary judgment on this issue, and the Court does not address it.
In April 2000, Dr. Atkinson reviewed plaintiff's performance from March 1999 to March 2000. The review form provided three performance levels: meeting expectations, meeting most expectations and meeting few expectations. Dr. Atkinson determined that plaintiff's performance fell in the middle category, i.e he met most of her expectations. Dr. Atkinson contends plaintiff did not meet all of her expectations because he generated low clinical service revenues and did not obtain research funding. For the next year, in addition to the duties that plaintiff had performed in 1999-2000, Dr. Atkinson assigned him to a full-time clinical appointment in surgical pathology and a half-time clinical appointment in flow cytometry. Plaintiff requested a salary increase to reflect his additional assignments, but Dr. Atkinson refused. Dr. Atkinson testified that in determining salary increases, "the main component" was "the amount that the individual physician contributed to the generation of the revenue for the practice." According to Dr. Atkinson, UPA "look[ed] at contribution to education and research as more minor components, but generation of revenue [was] the major component." Atkinson Depo. at 10:10-17, Exhibit 3 to Plaintiff's Response. After the evaluation, plaintiff began performing duties in surgical pathology and flow cytometry. Beginning in March 2000, plaintiff began asking Dr. Atkinson to remove him from autopsy but she refused.
On July 24, 2000, plaintiff's attorney sent Dr. Atkinson a letter which complained of race and national origin discrimination. The letter stated:
Please be advised that our law firm has been engaged to represent T. Tatsuo Tomita with respect to issues concerning Dr. Tomita's compensation and disparate treatment as a [professor with UPA].
A review of Dr. Tomita's salary levels in comparison with other physicians employed with KU and UPA over the last nine to ten years demonstrates a clear pattern that Dr. Tomita has consistently been paid the lowest or very close to the lowest compensation for his work. * * *
Despite the lowest salary of Dr. Tomita, Dr. Atkinson personally ordered him to perform autopsy service in addition to his routine duties of surgical pathology and flow cytometry. Dr. Tomita is the only faculty in your Department who is required to perform both surgical pathology and autopsy. The discrepancies in Dr. Tomita's pay have nothing to do with Dr. Tomita's workload. Not only does Dr. Tomita do more than his share of the workload, he is frequently and regularly asked to cover the assignments of others as well.
We believe these discrepancies in both pay and assignments cannot be explained away except for the fact that Dr. Tomita is of Japanese ancestry. Dr. Tomita has been a dedicated physician of impeccable qualification and skills for over 25 years. Qualifications such as those of Dr. Tomita have assisted others (non-Japanese) in obtaining sizeable salaries from the state and UPA funding sources. Dr. Tomita, on the other hand, has had an invisible ceiling on his salary level since the day he walked in the door that has continued for three decades, the constant factor during those years being his race and ancestry. This conclusion is further buttressed when the salary of a Japanese colleague, Dr. Chiga is reviewed. . . . We believe such patterns strongly point to the conclusion that race and national origin have illegally played a significant role in salary considerations at KU's pathology department.
Dr. Tomita has authorized our firm to file a Charge of Discrimination with the Equal Employment Opportunity Commission alleging violations of Title VII of the Civil Rights Act and discrimination on the basis of race and national origin. * * *
Defendants' Exhibit 18. For Dr. Atkinson and UPA, this letter was the first notice of plaintiff's discrimination claims. After learning of the claims, Dr. Atkinson instructed plaintiff's colleagues to interact with him in a manner which would ignore his discrimination charges. To Dr. Atkinson's knowledge and belief, each UPA physician attempted to do so.
On August 1, 2000, Dr. Thomas sent an e-mail to Dr. Atkinson which complained that plaintiff had made inappropriate ethnic and sexual remarks:
* * * I am concerned with what I think are inappropriate comments and lapses in professional behavior made by Dr. Tomita. I find that he frequently, and sometimes loudly, makes gender and ethnic based comments, jokes and "aphorisms" that frankly create an uncomfortable environment for me and probably others. . . . He constantly refers to ethnic status with the residents as if ethnicity or race relates to performance or the quality of health care provider or student. However, it is the gender based and sometimes sexually charged comments that make me especially uncomfortable. . . . He has occasionally said things to and in front of the residents that have embarrassed and even sickened me, i.e. asking one of our pregnant female residents something about what the status/characteristics of her "nipples" was during pregnancy. * * *
Exhibit 2-4 to Atkinson Affidavit, Defendants' Exhibit 2.
On September 11, 2000, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On the form, plaintiff marked the boxes for race and national origin discrimination and retaliation. See Defendants' Exhibit 21. Specifically, plaintiff complained as follows:
* * * 2. . . . .I believe I have been discriminated against on the bases of my Japanese national origin and race in my salary levels and raises in that non-Japanese faculty members with [lesser] qualifications than myself are paid substantially higher and receive regular annual raises. This has occurred over the last 9-10 years.
3. After complaining of discrimination in pay, I have received no raise and believe my complaint may have resulted in the lack of any raise. * * *
Defendants' Exhibit 19.
In December of 2000, Dr. Atkinson learned that plaintiff had threatened to kill her and Dr. Corrie May. Dr. Atkinson learned of the threat from Dr. Patricia Thomas, who had heard it from secretaries in the surgical pathology office. Apparently, at an office pizza party, plaintiff told a secretary that he was so mad at Drs. May and Atkinson that he would kill them if he had a machine gun. See Atkinson Depo. at 64:1 to 65:3. Learning of the threat upset Dr. Atkinson, and she worried whether plaintiff was serious. See id. at 65:11 to 66:8. Dr. Atkinson told Dr. May about the threat so that she could take precautions. See id. 67:11-17. Dr. Atkinson also discussed it with a university lawyer and a forensic psychiatrist. See id. at 65:14-16. They told her to investigate, to find out if the threat was serious, so Dr. Atkinson had two faculty members, Drs. Tawfik and Thomas, talk to plaintiff about the threat. See id. at 67:11-13. The doctors told Dr. Atkinson that they thought the threat was not serious, but that they were not sure. See id. at 68:9-24.
The record is unclear whether Dr. Atkinson or Dr. May first learned of the threat. Compare Atkinson Depo. at 63:14-23 (Dr. May complained to Dr. Atkinson) with Atkinson Depo. at 64:1-13 (Dr. Atkinson learned of threat and told Dr. May). This fact is immaterial to the Court's decision. For purposes of this order, the Court assumes that Dr. Atkinson first learned of the threat.
Although the record is not clear, it appears that Dr. Atkinson told Dr. May about the threat sometime in December of 2000.
The record does not reflect the dates that Dr. Atkinson consulted the lawyer and the psychiatrist. The forensic psychiatrist said that it likely was not a serious threat, but "you never know." See id. at 66:9-13.
The record does not indicate when the doctors talked to plaintiff or reported their conclusion.
On December 21, 2000, Dr. Atkinson reported the threat to university police. See id. at 65:16-19. The police investigated the threat and concluded that it was not substantial. See id. at 66:17 to 67:1.
The record does not disclose when Dr. Atkinson learned of this conclusion.
On or about December 20, 2000, the day before Dr. Atkinson made the police report, plaintiff had asked Dr. Atkinson to remove him from autopsy and she had agreed to do so. See Tomita Affidavit at ¶ 27, Plaintiff's Exhibit 1. On December 21, 2000, plaintiff sent Dr. May an e-mail which requested that she remove him from the autopsy rotation:
Defendants attempt to controvert this fact, see Defendants Reply ¶ 161, but the Court construes it in favor of plaintiff.
I talked to Dr. Atkinson about autopsy rotation yesterday. I requested her to remove me from autopsy as I am taking a full load in surgical pathology and one half load of flow cytometry, both of which I am performing at present and will maintain in the future.
It has become not so exciting [sic] place at the basement and I appreciate your understanding and perform [sic] your duty without me. Thus, please advise that I am not able to perform autopsy rotation in coming [sic] January under the [current] condition. I also advise that some are available who are not full [sic] load of service.
Exhibit E to Tomita Affidavit, Plaintiff's Exhibit 1.
On December 22, 2000, Dr. Atkinson sent an e-mail to plaintiff which stated that he must have misunderstood her and that she did not agree to remove him from autopsy:
I just wanted to let you know that you must have misunderstood me the night we talked. You did tell me that you wanted to be taken off the autopsy service because you were now going to be doing frozen sections and big specimens in surgical pathology and were sharing coverage of flow cytometry with Dr. Cunningham. I made copies of all of the schedules and told you that I would review the schedules and consider whether it was appropriate to make a change, but that I would not be able to do that until after the first of the year since I was busy completing a project and then would be away next week. I asked you when you were next scheduled to be on the autopsy service, and you said the first week of January. I said that you needed to do the week in January that is currently scheduled, but when I was back I would discuss it with Dr. May and make a decision about the service coverage. Again, I expect that you will cover the service the week beginning January 2nd. I will get back to you sometime that week about your further service responsibilities.
Exhibit G to Tomita Affidavit, Plaintiff's Exhibit 1.
On February 26, 2001, plaintiff met with Dr. Atkinson regarding his performance during 2000-2001. In reviewing plaintiff's performance, Dr. Atkinson lowered plaintiff's rating from meeting "most" expectations to meeting "some" expectations. Dr. Atkinson stated that she lowered plaintiff's rating because of (1) poor performance in surgical pathology and flow cytometry and (2) complaints from female colleagues, including Dr. Thomas' complaint about inappropriate sexual and ethnic comments and a complaint by Dr. May regarding the death threat in December. Atkinson Affidavit ¶¶ 9-11, Defendants' Exhibit 2. On the evaluation form, Dr. Atkinson stated that plaintiff had improved in surgical pathology but was "still functioning at a level similar [to] what we expect of our fellows." Exhibit H to Atkinson Affidavit, Defendants' Exhibit 2. Dr. Atkinson also stated that plaintiff was "working to become as proficient and diagnostically accurate as some of our senior residents" and that he had "not yet reached what [she] would consider an entry skill level for a surgical pathologist faculty member." Id. Plaintiff contends that Dr. Atkinson's review was unjustified and overly critical, and that her comments degraded him. He points out that in their evaluations for the academic year 2000-2001, residents stated that plaintiff was helpful, dedicated, "hard work[ing] and always available" and a "valuable asset to the department." Exhibit N to Tomita Affidavit, Plaintiff's Exhibit 1.
According to the annual faculty evaluation form, the review covered the period from July 2000 to February 2001.
As noted, the evaluation form provided three levels for expectations: meeting all, meeting most and meeting few. Dr. Atkinson marked through the lowest level (meeting few) and changed it to "meeting some." See Exhibit 2-7 to Atkinson Affidavit, Defendants' Exhibit 2.
In addition, Dr. Atkinson states that a resident, Dr. Jackie Hu, complained about plaintiff's attitude. The record does not reveal whether Dr. Hu's complaint occurred during the time period covered by plaintiff's review. See id. ¶ 8(C), Exhibit 2-5. Dr. Atkinson also states that in May 2000 plaintiff had problems with Dr. May regarding autopsy assignment schedules. See id. ¶ 8(A). Those problems, however, occurred before July 2000 (when the time period covered by plaintiff's review began).
The evaluations stated the following regarding plaintiff's "outstanding attributes or areas of special merit":
• Always available.
• Dr. Tomita has broad knowledge, is very personable and available.
• I just had one encounter with Dr. Tomita but with that her is [sic] is enthusiastic to teach.
• Positive, really trying, available.
• I like to work with Dr. Tomita. He's knowledgeable and good at teaching. He's also easy to get along with.
• Very helpful and dedicated.
• Dr. Tomita is always willing to teach the resident and advi[s]e on how to do better.
• Personality, caring, interest, and always has 100% enthusiasm for the subjects. Dr. Tomita is a valuable asset to the department.
• He is hard work[ing] and always available.
• Always available and hard working.
Exhibit N to Tomita Affidavit, Plaintiff's Exhibit 1. They also stated the following regarding unsatisfactory areas of plaintiff's performance:
• None; just slow down and take your time.
• Continue to build knowledge base. Slow down and take your time.
• Need more experience in [surgical pathology].
• I can honestly say I have no ideas on what you do wrongly. Always learned a great deal from you. You might not have always known the answer immediately, but we always ended up with a good solid diagnosis.
• As a resident, we really ask him to pay attention to teaching us.
• Lack of enthusiasm for teaching.
Id. The record is silent regarding how the resident evaluations of plaintiff compared to the resident evaluations of other pathologists.
At the review meeting, plaintiff asked Dr. Atkinson to remove him from autopsy and increase his salary. Dr. Atkinson refused. Since his last evaluation, in March of 2000, plaintiff had substantially increased his clinical service to UPA. This change had created a substantial increase in revenue to UPA. For the previous fiscal year (beginning July 1, 1999 and ending June 30, 2000), plaintiff had generated revenues of only $500. For the current fiscal year (beginning July 1, 2000 and ending June 30, 2001), plaintiff had generated revenues of $261,477 by March of 2001. By the end of the fiscal year (June 30, 2001), plaintiff had generated revenues of $421,593. As of March 2001, out of 17 pathologists at UPA, plaintiff generated the fifth highest revenues for the current fiscal year. In March of 2001, UPA paid plaintiff the lowest salary of all pathologists.
In addition to his full clinical service appointment in autopsy, plaintiff had performed a full rotation in surgical pathology and a half rotation in flow cytometry.
Defendants dispute these figures, see Defendants' Reply ¶ 167, but for purposes of this ruling the Court construes them in favor of plaintiff.
The record does not reflect how plaintiff's revenues ranked at the end of the fiscal year.
On June 14, 2001, plaintiff filed a second charge of discrimination with the EEOC. In the second charge, plaintiff marked the boxes for race and national origin discrimination and retaliation. Specifically, he complained that in April 2001, defendants (1) gave him a substandard performance evaluation; (2) denied him a pay raise; and (3) denied his request to stop performing autopsies. See Defendants' Exhibit 20. Defendants received a copy of the second charge on July 2, 2001.
On July 20, 2001, Dr. Atkinson reported to university police hearsay allegations that plaintiff had threatened a co-employee. The parties do not detail the incident which gave rise to the police report, but according to the report, in response to a joke by co-employee Steve Jones, plaintiff told Jones that he was "the type of person [that plaintiff] would shoot with a gun." Exhibit M to Tomita Affidavit, Plaintiff's Exhibit 1. Plaintiff also told Jones about an Asian gang that cut the throats of its victims. See id. The report stated, however, that "Jones was not threatened nor concerned about the comments." Id.
Plaintiff contends that Dr. Atkinson made the report with malicious intent, and that it humiliated him and damaged his reputation. Plaintiff provides no information regarding how it damaged his reputation.
Through September of 2001, plaintiff continued to ask Dr. Atkinson to remove him from the autopsy rotation. In September of 2001, Dr. Atkinson told plaintiff that she would take him off if he agreed to serve as gross room supervisor and revise the gross room manual. Plaintiff refused to take on the additional responsibilities.
The record does not explain the duties of a gross room supervisor and leaves to the reader's imagination the activities that occur in a gross room.
The record is unclear whether he ceased performing autopsies at that time.
On September 27, 2001, plaintiff served defendants with his complaint in this lawsuit. In October of 2001, Dr. Atkinson ordered plaintiff to leave a faculty meeting so that they could discuss the lawsuit — an order which humiliated and degraded plaintiff. After the meeting, plaintiff's co-workers began expressing concerns to him about the lawsuit and how his claims would deplete UPA resources and cause pay cuts for all employees. Several co-workers changed their attitudes toward plaintiff and were cold, unfriendly and uncooperative and refused to assist him with his work.
On October 16, 2001, plaintiff filed a third charge of discrimination with the EEOC. On the charge form, plaintiff marked the boxes for race and national origin discrimination and retaliation. See Defendants' Exhibit 21. He complained that defendants did not restore his salary after his 1993 sabbatical and that they continued to pay him a low salary because of his race and national origin. Plaintiff did not complain of specific acts of retaliation.
According to Dr. Atkinson, during the time that she has been UPA president, from October 1999 to March 2002,
physicians' salaries have generally not increased. The only compensation increases accompanied major increases in title and responsibility. Although changes and modifications were made between the contribution of UPA and the State of Kansas to various physician's salary, each physician's overall salary (i.e. the sum of UPA and Kansas contributions) has been virtually the same for all UPA physicians during these last two years [preceding June of 2002]. Stated differently, while Dr. Tomita has received a small increase in State compensation, UPA has attempted to keep all physician salaries (including Dr. Tomita) virtually identical during the entire time that I have been Chairperson and President because, as a group, we have barely earned enough money to meet our yearly UPA expenses.
Atkinson Affidavit, Defendants' Exhibit 2.
On March 30, 2002, plaintiff left his employment with UPA. UPA did not provide his contractually mandated severance payments. Plaintiff requested that UPA transfer his endowment account to his current employer, but Dr. Atkinson prevented the transfer.
IV. Analysis
Defendants seek summary judgment on the ground that plaintiff cannot prove adverse employment action on his retaliation claims. See Defendants' Memorandum at 9-14. In response, plaintiff contends that the following acts constitute adverse employment action: (1) failure to increase his salary; (2) requirement of more clinical services; (3) evaluations under different performance standards; (4) police reports in December of 2000 and July of 2001; (5) exclusion from the faculty meeting in October of 2001; and (6) co-worker harassment in the fall of 2001. See Plaintiff's Response at 15-20.
Plaintiff also argues that (1) he can establish a causal connection between his protected activity and the adverse employment actions; (2) defendants have failed to articulate a legitimate business reason for their adverse employment actions; and (3) circumstantial evidence supports his retaliation claims. See Plaintiff's Response at 21-27. These arguments do not respond to the issues raised by defendants' motion and the Court does not consider them.
As a preliminary matter, the Court considers the scope of plaintiff's retaliation claims. Defendants urge the Court to limit plaintiff's retaliation claims to the three theories of recovery which he listed in the pretrial order: (1) failure to increase his salary; (2) requirement of more clinical services; and (3) evaluations under different performance standards. See Pretrial Order (Doc. #53) filed May 22, 2002 at 11. Plaintiff does not respond to this argument, and thereby concedes the point. Accordingly, the Court disregards the last three adverse employment actions which plaintiff asserts in response to defendants' motion for summary judgment, i.e. the police reports, exclusion from faculty meeting and co-worker harassment.
In its previous order, the Court stated that plaintiff asserted the following acts of retaliation: "(1) increasing harassment towards him; (2) requiring him to perform additional clinical assignments; (3) giving him poor work evaluations; (4) humiliating and degrading him; and (5) not raising his salary commensurate with his work." Memorandum And Order (Doc. #76) at 14. In making this statement, the Court relied on the following language in the pretrial order regarding plaintiff's factual contentions: "Following plaintiff's complaint, the harassment of plaintiff increased and he was required to perform additional clinical assignments, received poor evaluations, was humiliated and degraded by his superiors, and did not receive salary adjustments commensurate with his work." Pretrial Order (Doc. #53) at 5. The Court identified these claims solely for background purposes, in ruling on defendants' summary judgment motion regarding plaintiff's discrimination claims. Defendant's motion did not address, and the Court made no ruling regarding, the scope of plaintiff's retaliation claims.
Even under a liberal reading, the pretrial order does not specify any facts relating to these claims. Plaintiff makes broad allegations of increased harassment and humiliating and degrading conduct, but such language appears to encompass only the substantive acts of retaliation which fall under his three stated theories of retaliation. Plaintiff has therefore waived any claims that defendants retaliated against him by filing police reports, by excluding him from the faculty meeting or by co-worker harassment. See Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997); Long v. City Of Leawood, Kan., 6 F. Supp. d 1249, 1252 n. 3 (D.Kan. 1998) (omission of entire theory from pretrial order constitutes waiver), aff'd, 202 F.3d 282, 2000 WL 14257 (10th Cir. 2000).
With respect to plaintiff's remaining claims, i.e. failure to increase his salary, requirement of more clinical services and evaluations under different performance standards, defendants argue that plaintiff has not shown adverse employment action. To establish a prima facie case of retaliation, plaintiff must show that (1) he engaged in protected opposition to discrimination; (2) defendants subjected him to adverse employment action; and (3) a causal connection exists between the adverse employment action and his protected activity. See Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533 (10th Cir. 1998). The Supreme Court has explained that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). The Tenth Circuit liberally defines adverse employment action. See id. at 532. "Such actions are not simply limited to monetary losses in the form of wages or benefits." Id. Instead, the Tenth Circuit applies a "case-by-case" approach, examining the unique factors relevant to the situation before it. Id. Nevertheless, an adverse employment action does not include "a mere inconvenience or an alteration of job responsibilities." Id. at 532 (citations and quotations omitted).
Defendants also assert that plaintiff has not proven adverse employment action with respect to his claims regarding the police reports, exclusion from the faculty meeting and co-worker harassment. The Court agrees. Plaintiff has not shown that he suffered any negative consequences to his current or future employment as a result of those actions. See Sanchez, infra, 164 F.3d at 533; compare Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) (subjecting plaintiff to criminal trial is necessarily public and carries significant risk of humiliation, damage to reputation and harm to future employment prospects).
A. Failure To Increase Salary
In order to prove that defendants' failure to increase his salary was an adverse employment action, plaintiff must show that his performance merited a salary increase. See Amro v. Boeing Co., 232 F.3d 790, 799 (10th Cir. 2000). Dr. Atkinson testified that revenue production constitutes the main component regarding salary increases at UPA. Plaintiff has presented evidence that of 17 pathologists in the spring of 2001, he generated the fifth highest revenue but received the lowest salary. Construed in the light most favorable to plaintiff, the record supports an inference that plaintiff's performance justified a salary increase. Defendants argue that the Court's prior ruling determined that plaintiff had not shown that he deserved a higher salary. See Memorandum And Order (Doc. #76) at 17. The earlier summary judgment record did not contain Dr. Atkinson's statement regarding revenue production or evidence regarding the amount of revenue which plaintiff produced. The current record reveals a genuine issue of material fact on this issue. Defendants are not entitled to summary judgment on this claim.
In their reply brief defendants argue for the first time that plaintiff has not shown pretext. See Defendants' Reply at 21-22. The memorandum in support of their summary judgment motion did not argue that plaintiff had failed to show pretext. See Defendants' Memorandum at 8. The Court does not consider the pretext argument because defendants raised it for the first time in their reply brief. See Wagher v. Guy's Foods, Inc., 765 F. Supp. 667, 671 (D.Kan. 1991) ("In pursuit of fairness and proper notice, this court's practice is to deny or exclude summarily all arguments and issues first raised in reply briefs."). Moreover, even if the Court were consider the pretext argument, it would overrule defendants' motion for summary judgment. Defendants assert generally that UPA did not increase physician salaries during the relevant time due to financial constraints, but they do not state why they did not adjust plaintiff's salary in light of his increased revenue production as compared to the other pathologists.
B. Requirement Of More Clinical Services
Dr. Atkinson assigned plaintiff to clinical duties in the spring of 2000, before plaintiff complained of discrimination. At that time, plaintiff asked Dr. Atkinson to remove him from autopsy but she refused. Plaintiff presents no facts which suggest that his workload materially changed since the spring of 2000. In short, plaintiff has not shown that his clinical assignments significantly affected his employment status. See Sanchez, 164 F.3d at 533. Accordingly, defendants are entitled to summary judgment on this claim.C. Evaluations Under Different Performance Standards
The fact that Dr. Atkinson lowered plaintiff's performance rating in the spring of 2001 does not establish adverse employment action. Although plaintiff complains that the evaluation was unjust and overly critical, he has not shown that he suffered negative consequences as a result. See Merideth v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (plaintiff must show adverse action relating to her evaluation); Dunlap v. Kan., Dept. of Health Env., 211 F. Supp.2d 1334, 1343 (D.Kan. 2002) (letter of reprimand without negative consequences not adverse action). Plaintiff argues that Dr. Atkinson wrote degrading comments, but he has not shown that the conduct significantly affected his employment status. See Sanchez, 164 F.3d at 533. Defendants are entitled to summary judgment on this claim.
V. Conclusion
Defendants are entitled to summary judgment on plaintiff's retaliation claims regarding the requirement of more clinical services and evaluations under different performance standards. Plaintiff's retaliation claim regarding failure to increase his salary remains in the case.
Defendants assert that because Dr. Atkinson had determined plaintiff's salary in the spring of 2000, before she learned of his discrimination charges, her refusal to increase his salary in the spring of 2001 cannot be retaliatory. This argument is nonsensical. The fact that Dr. Atkinson determined plaintiff's salary before he notified her of his discrimination claims does not preclude a finding that she refused his later request to increase his salary in retaliation for protected activity.
IT IS THEREFORE ORDERED that UPA And Atkinson's Motion For Summary Judgment On Retaliation Claims (Doc. #81) filed November 6, 2002 be and hereby is SUSTAINED in part. The Court grants summary judgment in favor of defendants on plaintiff's retaliation claims regarding the requirement of more clinical services and evaluations under different performance standards. Plaintiff's retaliation claim regarding failure to increase his salary remains in the case.
IT IS FURTHER ORDERED that this case remains set for trial on April 1, 2003 at 9:30 a.m. Dated this 20th day of March, 2003 at Kansas City, Kansas.