Lead Opinion
Dr. Theodore Knatt appeals the district court’s dismissal of several of his claims against the hospital where he practiced, its administration and various doctors and nurses who worked there. After hearing argument, considering the briefs and undergoing an extensive review of the record, we affirm in part, vacate in part, and remand to the district court.
FACTS AND PROCEEDINGS
In 1995, Knatt, who is black, was recruited by Lane Memorial Hospital (“Lane”) to locate his orthopaedic surgery practice in Zachary, Louisiana. He was very successful there.
The following facts were presented by the defendants relative to Knatt’s summary suspension. Knatt suffered from personal medical problems in the first half of 2002. He went to the emergency room twice for gastroesophageal reflux disease (GERD), which sometimes caused his heart to race and his chest to hurt. He also had neck pain with associated left shoulder pain. On April 26, 2002, Knatt saw an endodontist who initiated a root canal procedure. That afternoon, he performed surgery at Lane. The OR technician and scrub technician who assisted Knatt that day said that his behavior was different—he scrubbed faster, was blank
The MEC, which consisted of Dr. Juan Medina, Dr. Donald Fonte, and Dr. Richard Rathbone, had a regular meeting scheduled the next day on May 8. After the committee concluded its regular business, Johnson told the MEC that she had a confidential physician issue to' bring to it. The MEC went into executive session and Johnson presented the concerns about Knatt that the nurses had reported. The next day, Fonte and Johnson met with some of the nurses who were the source of the complaints about Knatt so Fonte could hear them directly. Fonte reported back to Medina and Rathbone and they agreed, under the MEC bylaws, to summarily suspend Knatt’s privileges at Lane. Their decision was issued in a letter to Knatt. They asked Knatt to voluntarily submit himself for an evaluation by the Physician’s Health Program of the Louisiana State Board of Medical Examiners. The letter noted that Knatt had the right to request a hearing in writing within seven days. Knatt hired an attorney and requested a hearing, which was scheduled for May 22, 2002. The hearing was later cancelled by Knatt’s counsel because of a conflict. Knatt, upon his request, was also provided with documents concerning the basis of the peer review action.
On May 30, 2002, Knatt agreed to a compromise. The MEC withdrew the suspension, which had been in place for 21 days, and replaced it with a separate peer review action in the form of a “letter of reprimand.” Knatt agreed to the language of the letter of reprimand, which addressed performing surgery after dental treatments as well as other complaints by nurses about Knatt’s behavior, including anger, cursing, pushing or shoving hospital staff, not timely reporting and starting scheduled surgeries, and utilizing support personnel who lacked permission to practice at Lane.
Knatt apparently became unsatisfied with this resolution, and a second appeal hearing was scheduled in October 2002. Prior to the hearing date, Knatt and the MEC agreed to another compromise, under which the letter of reprimand stood, but the MEC retroactively voided the summary suspension. As part of this compromise, Knatt agreed not to sue the MEC members.
Knatt did not consider the matter resolved. In May, 2003 he filed suit in Louisiana state court against the three MEC members, as well as Lane, Lane’s CEO, CFO, and CNO, nine individual nurses, Dr. Ronnie Mathews, and the individual members of the Lane Board of Commissioners. The allegations included breach of contract, tortious interference with contract, unfair trade practices, defamation, and race discrimination. Defendants removed the action to the district court, where
Knatt asserts that the summary suspension was a sham and part of a larger conspiracy to ruin his practice. Among the evidence in a voluminous record, he put forth evidence that several months before the suspension, the hospital formed a committee consisting of doctors (who Knatt claims would be harmed by Howell Place) to investigate Knatt for “on call incidents.” There is testimony that, while hospital staff were not asked to lie, they were told to place Knatt under a microscope and report even minor infractions. Fonte, who led the investigation, is a competing orthopedic surgeon, and the hospital admitted to Knatt that it would be hurt by the Howell Place project. Jeanne Par-tin, Fonte’s sister, played a role in assigning nurses to monitor Knatt and bring complaints to the attention of the administration. The summary suspension immediately followed a confrontation between Knatt and Partin in the operating room during one of Knatt’s surgeries on May 7, 2002.
In a series of decisions, the district court dismissed all of Knatt’s claims except three state law contract and tortious interference claims, which it remanded to state court. In the last of its orders dismissing Knatt’s claims, the district court expressed frustration with the advocacy on behalf of Knatt:
At the outset, this court notes that it was extremely generous in deviating from the local rules by granting Plaintiffs numerous motions for leave to file excess pages and for extension of time to file opposition. In considering the Plaintiffs arguments, the court was not helped by an 87-page opposition in which claims were not specifically addressed or directly presented. Quoting pages of the Magistrate Judge’s Report did not serve to advance Plaintiffs arguments with respect to the issues before this court. Additionally, despite of [sic] all of the extensions granted, Plaintiffs arguments lacked conclusions, expressed incomplete thoughts, and in one instance a blank needed filling in. Plaintiffs counsel is admonished to carefully proofread, edit, and complete future memoranda submitted to this court.
These comments reflect a general pattern of a disjointedness in the presentation of Knatt’s claims. His papers have been rich in conspiratorial narrative, but frequently
Knatt now appeals the dismissal of his claims, and defendants appeal the remand of the remaining state law claims to the state court.
DISCUSSION
A. Questions Decided Unanimously
We begin with a discussion of issues on appeal upon which the court unanimously agrees.
1. Motion to Amend
Knatt argues first that the district court abused its discretion in denying his first motion to amend. This court reviews a district court’s ruling on a motion to amend for abuse of discretion. Cambridge Toxicology Group, Inc. v. Exnicios,
The first claim sought to be added by Knatt in his amended petition involved an allegation that Matthews (a previously named defendant) had suggested to employees of another hospital that Knatt was impaired and had problems at Lane. This exchange between Matthews and employees of the other hospital allegedly occurred when Matthews inquired about Knatt’s conduct when he practiced at that hospital. The incidents occurred before Knatt filed his original complaint and he offers no explanation for omitting this claim in his original petition. The district court did not abuse its discretion in refusing this amendment.
The second claim relates to events that occurred after the filing of the lawsuit and alleges that Matthews told another doctor that Knatt showed up late for surgeries and that disciplinary actions had been taken against him. The district court concluded that this allegation was being added solely to prevent dismissal on the basis that the support for the allegation was an unsworn statement from the physician who heard Matthews’ comments. Denying the motion to amend was proper because the amendment would be futile. If the allegation is true, Matthews was merely repeating allegations that had already been made public by the filing of Knatt’s suit. These allegations cannot support any claim against Matthews.
The final claim Knatt sought to add was that Richard Sessoms, a Lane Board member who was not a named defendant, brought a malicious complaint against Knatt that falsely accused Knatt of inade
2. Statute of limitations
Knatt argues next that the district court erred in dismissing defendant Matthews on the basis of prescription. As noted by the district court, all of the allegations in Knatt’s petition that refer to Matthews concern events that occurred more than one year before the lawsuit was filed. There is no dispute that one year is the applicable prescriptive period. Knatt argues that because he alleges a conspiracy including Matthews, acts extending beyond the prescriptive period are actionable. This argument has no merit on the facts of this ease. Under Louisiana Civil Code Article 2324(C), prescription is interrupted against all joint tortfeasors by the filing of a timely lawsuit against one joint tortfeasor. This provision works prospectively only, by tolling prescription against even unnamed joint tortfeasors. Article 2324(C) does not, however, revive a prescribed claim against a joint tortfeasor by filing a timely claim against another joint tortfeasor.
3. Summary Judgment for Drs. Rathbone, Medina, and Fonte
Knatt’s next issue on appeal concerns the district court’s decision to grant the motion for reconsideration of Rathbone, Medina, and Fonte on their motion for summary judgment. As a result of the ruling on the motion for reconsideration, the district court granted their motion for summary judgment. The basis for the motion was that Knatt had compromised his claims against them as members of the MEC and agreed, as part of that compromise, not to sue these doctors “with respect to the issuance of the summary suspension.” The district court limited the ruling to grant summary judgment “only to the extent that plaintiff now attempts to assert a claim against these defendants ‘with respect to issuance of the summary suspension.’ ” Knatt argues that the ruling is in error because there was no meeting of the minds on the meaning of “issuance,” because he did not agree not to sue the defendants for failure to maintain the confidentiality of the peer review process and because the defendants’ fraud against him based on their alleged roles in the conspiracy vitiated the compromise. These arguments are without merit. Knatt was represented by counsel throughout the suspension process and the district court restricted the judgment to the plain language of the compromise agreement and the three defendants protected by that agreement.
Í LUTPA
Knatt also appeals the dismissal of his claims under LUTPA against the individual defendants and Lane. He alleged that the defendants conspired to prevent him from providing services in his medical practice outside of a conventional hospital setting by destroying his reputation in the Zachary community and interfering with his plans to move his practice to Howell Place. LUTPA declares unlawful “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” La.Rev.Stat. § 51:1405(A). Trade or commerce is defined in the statute as “the advertising, offering for sale, sale, or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and
The district court first found that Knatt lacked standing to bring a LUTPA claim against any defendants except Lane and Fonte. To have standing to bring a private action under LUTPA, the plaintiff must be a direct consumer or business competitor of the defendant. Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc.,
5. Defamation
The district court also dismissed Knatt’s claims for defamation against various defendants.
The district court dismissed the defamation claims against various nurses for lack of publication because Knatt’s complaint only alleges statements by the nurses to other hospital personnel related to their work. Statements made between employees in the course and scope of their employment are not statements communicated or publicized to third persons so as to constitute publication for a defamation claim. Doe v. Grant,
Knatt argues generally that several affidavits he submitted in support of his opposition memo establish material issues
Knatt also argues that Lane published Knatt’s suspension. The vague anonymous reference in the MEC’s minutes that “a physician” was referred to the Physicians Health Program is not actionable because the statement does not identify Knatt as the “physician” and because it is true. Knatt also takes offense at responses sent by Lane to hospitals seeking credential information about Knatt. A response sent by Lane states no disciplinary action had been imposed against Knatt with a parenthetical disclaimer “(exceeding 30 days).” Knatt reads the statement as stating that he has not been subject to disciplinary action in the last 30 days. That is not an accurate interpretation of the letter. The letter clearly states that Knatt has not been subject to disciplinary action that exceeded 30 days. The contents of the letter are also true and cannot support a defamation claim.
In summary, the district court did not err in dismissing Knatt’s defamation claims.
6. Motion for Certification
Knatt argues that the district court abused its discretion in denying his motion for certification under Federal Rule of Civil Procedure 54(b) after most of his claims were dismissed before discovery commenced. He recognizes that the court has great latitude on this issue and we find that there was no abuse of discretion.
B. Section 1983 and 1985 Claims
While we have unanimously agreed on the outcome of the issues discussed above, the dissent takes issue with the court’s disposition of two final claims. We provide a more detailed discussion of these issues, in order to address the concerns of the dissent.
1. Section 1983
Knatt contends that the conspiracy to ruin his practice and subject him to a “sham peer review” after he announced his involvement in Howell Place also included race discrimination actionable under 42 U.S.C. § 1983. Knatt testified that the defendants treated him differently because of his race from the beginning of his association with Lane,
The summary judgment test for discrimination claims under § 1983 is the same as
We agree with the district court—and the dissent appears to as well—that Knatt failed to establish a prima facie case sufficient to survive summary judgment under the McDonnell Douglas standard. To establish a prima facie case, Knatt must show that: (1) he is a member of a protected class, (2) he was qualified for staff privileges, (3) he suffered an adverse employment action, and (4) others similarly situated were more favorably treated. See Rutherford v. Harris County,
“[I]n order for a plaintiff to show disparate treatment, [he] must demonstrate that the misconduct for which [he] was discharged was nearly identical to that engaged in by an employee not within [his] protected class whom the [hospital] retained.” Wallace v. Methodist Hosp. Sys.,
Knatt provides evidence of five white doctors who he alleges were more favorably treated. In only one of those cases, however, was the doctor impaired while in the operating room, and that doctor was also suspended. The alleged doctors were:
1) Demerol Dr.'—This doctor stole Demerol from the emergency room and was allowed to resign; there are no allegations that he operated while under the influence of the drug.
3) Unknown Dr.—Fonte testified that there was at one point a doctor who was acting strangely in the operating room and that he was suspended from performing operations.
4) Dr. RD—-This doctor failed to show up to work and there are allegations of a car accident and drug abuse. He failed to meet with any of the doctors who contacted him, and was summarily suspended. Again, there is no question of impairment during surgery, and this doctor was in fact summarily suspended.
5) Dr. WM—This doctor inserted a subclavian in an unprofessional manner, ignoring proper technique. There are no allegations that he was impaired when he performed the operation.
With this evidence, Knatt has not identified a case where a white doctor was impaired in the operating room and was not suspended. In fact, some of these cases demonstrate that when doctors at Lane were impaired, they were suspended. Knatt has failed to establish a prima facie case of disparate treatment, and we need go no further under the McDonnell Douglas framework.
The dissent suggests, however, that Knatt should survive summary judgment on the theory that he presented sufficient direct evidence of actionable race discrimination to survive summary judgment without satisfying McDonnell Douglas. We consider this an inappropriate basis to decide the case, because Knatt presents no such argument.
It is our general policy to treat litigants as masters of their own legal theories, and to require that they adequately present an issue or theory before we will consider it. A party that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it. United, States v. Skilling,
In light of these standards, Knatt did not adequately present for our review a direct evidence discrimination theory. None of the sixteen discrimination-related headings in the Table of Contents to Knatt’s brief (which doubles as his statement of issues) mentions direct evidence analysis. Knatt argues multiple elements of McDonnell Douglas, which was the basis on which the district court decided the case, but nowhere acknowledges direct evidence as an alternative to the McDonnell Douglas analysis.
Indeed, Knatt’s discrimination arguments mention “direct ... evidence” only once, under a heading addressing an element of the district court’s McDonnell Douglas analysis.
Thus, Knatt recites the phrase “direct and circumstantial evidence” without acknowledging the difference between the two categories, and without citing any authority. He does not argue (1) that the district court should have applied a direct evidence standard rather than McDonnell Douglas, or (2) that his claim satisfies a direct evidence standard as set forth in relevant precedent. Finally, he uses the phrase in the context of a meritless argument criticizing the district court’s McDonnell Douglas analysis. The entire peer review cannot be an adverse employment action, because “an adverse employment action consists of ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.” Pegram v Honeywell, Inc.,
Even assuming, arguendo, that it were appropriate to consider a direct evidence theory, the district court’s grant of summary judgment on these claims would still be correct. Direct evidence is evidence which, on its face and without inference or presumption, shows that an improper criterion served as a basis for an adverse employment action. See Fabela v. Socorro Indep. Sch. Dist,
Our cases have recognized, and we repeat, that “the term ‘nigger’ is a universally recognized opprobrium, stigmatizing African-Americans because of their race.” Brown v. East Miss. Elec. Power Ass’n,
The dissent claims that “at least two of the three doctors on the MEC, Dr. Rathbone and Dr. Medina, used racial epithets in reference to Dr. Knatt at a meeting involving the investigation of Dr. Knatt.” If this were correct, it would satisfy Jenkins. But Bucionne’s deposition does not support this assertion, and does not otherwise support the conclusion that members of the MEC used the N-word in a manner that was proximate in time, and related to, the summary suspension decision. Knatt’s counsel repeatedly sought to elicit testimony that the MEC members used the N-word in connection with Knatt’s summary suspension, but Bucionne testified only that (1) she had heard the MEC members use the word at unspecified times, (2) other nurses had used the word to refer to Knatt (and in one ease, his wife), and (3) on certain occasions during the summary suspension controversy numerous individuals used the word. When pressed for detail (by Knatt’s attorney) on who exactly used the word in what context, Bucionne either changed the subject, changed her testimony, or related instances where nurses had used the word.
In particular, counsel tried to elicit testimony that the three members of the MEC used the N-word in a May 16, 2002 meeting with nurses, approximately a week after the suspension decision. Bucionne said she did not remember the meeting, and that “[y]ou will have to refresh my memory,” but then said she recalled it when counsel informed her that others had testified about it. Bucionne initially stated that Rathbone and Medina used the N-word at the meeting, but then retreated
Q ... And what physicians do you say were using the nigger word constantly?
A Dr. Rathbone.
Q Anybody else?
A Dr. Medina.
Q Anybody else?
A In that particular meeting?
Q Well, I guess anywhere in the hospital.
A Oh, anywhere. I could not begin to give you the string of names.
Q So in this meeting on May 16, 2003, Dr. Rathbone and Dr. Medina used the word nigger?
A I believe it was in the conference call that we all sat around, but after-wards, when we were leaving, the N word was used a lot.
Q Who was using it a lot?
A Pretty much everyone. At this time I didn’t know this was going to blow into this. So when the N word was brought up, I didn’t turn and say I am going to remember you said that word.
Q In what context was it being used?
A I just told you. They are going to bring in their own kind.
This last answer suggested that Bucionne had confused this meeting with lunchroom conversations, at an earlier unspecified time, regarding a different black doctor, Dr. Lewis.
Q ... I only want to know about this meeting on May 16, with the three doctors. What do you know?
A Due to the traumatic experience I experienced at the end, right before my surgery, I don’t recall anything.
Q What traumatic experience did you have?
A I was having a vaginal hysterectomy, and I was very upset about this, and on women who have children, your children—once it was their home. As a female, it is pretty personal. I feared for my life.... I was fixing to go on leave, and then the phone rang and it was Ms. Par-tin, and she stated I no longer had a job, that they were downsizing. So I went to the hospital; my vitals were unstable.... So I think, because of all this trauma, I just don’t recall a meeting.
These exchanges are typical of the indefiniteness and confusion that pervade the Bucionne deposition.
The only individuals with authority over the summary suspension were members of the MEC,
Knatt has failed to present evidence that would allow him to avoid the McDonnell Douglas framework—an argument he failed to brief—nor does he have sufficient evidence to survive summary judgment under that framework. We therefore affirm the district court’s grant of summary judgment in favor of the defendants on the § 1983 claim.
2. Section 1985(3)
Section 1985(3) has unusual wording and a complex set of elements. See generally Earnest v. Lowentritt,
C. Remand of remaining claims to state court
Finally, the defendants cross appeal the district court’s decision to remand the remaining state law claims to Louisiana state court. Though we find no error or abuse of discretion in the district court’s remand of these claims to state court, we vacate this decision and remand so that the district court may consider all of the state law claims together, including the remanded LUTPA claim.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed except as to the dismissal of Knatt’s LUTPA claims and the remand of the remaining claims to state court. These decisions are vacated and the case is remanded to the district court for further proceedings consistent with this opinion.
AFFIRMED in part, VACATED in part, REMANDED.
Notes
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. For example, a study conducted by Lane in 2001 concluded that 29% of the income it earned from the five orthopedic surgeons on staff was generated from Knatt’s surgeries.
. Knatt attempted to amend to allege a conspiracy to destroy his business by constructively evicting him from office space he leased from Lane. The district court denied the motion to amend and Knatt instead filed a separate lawsuit, alleging breach of contract, wrongful eviction, unfair trade practices, and discrimination, which the court consolidated with this case. All claims in die second suit were dismissed and appealed to this court, which affirmed the district court on bases that do not affect the resolution of the present appeal. See Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge Parish,
. Knatt asked that a particular physician assistant be called to assist him in the procedure. Partin refused to call the physician assistant because she said he did not have privileges at Lane, and a heated discussion ensued.
. Knalt's briefing on appeal suffers from problems similar to those discussed by the district court. His brief includes no genuine statement of the issues, see Fed R.App. P. 28(a)(5), attempts to incorporate by reference entire pleadings filed below, fails to provide consistent, appropriate citations to the appellate record (as opposed to the trial docket), and repeatedly cites evidence and authority without grounding the discussion in the precedents applicable to the particular claims under review. We do not mention these issues—some of which would be minor concerns in isolation—to single out Knatt’s counsel. Unfortunately, we receive many briefs with one or more of these problems. We consider it useful to set out of this background, however, because the degree to which Knatt adequately presents certain arguments is a matter of disagreement between this opinion and the dissent.
. The issue was presented to the district court in a Motion to Dismiss Certain Claims or, in the Alternative for Partial Summary Judgment filed by the defendants. Because Knatt submitted affidavits and other evidence to the court, which was not excluded, the motion is treated as one for summaiy judgment. See Fed.R.Civ.P. 12(d).
. For example, he claims this included "doctors wanting to send him all of the indigent and Medicaid patients.”
. Knatt’s arguments regarding race discrimination are at times, to quote the district court, “difficult ... to discern." Nonetheless, it is clear that the legal framework guiding his arguments is the McDonnell Douglas framework applied below. He states that ”[c]laims brought pursuant to 42 U.S.C. § 1983 require analysis under a burden shifting analysis,” citing case law applying McDonnell Douglas, and devotes nine pages to discussing the "others similarly situated” element of the prima facie case, which we consider to be the determinative element in the analysis.
. The district court held there was no adverse employment action, because only the summary suspension qualified, and Knatt had agreed not to sue the individuals who made that decision. We do not decide whether this analysis was correct, because we find the prima facie case deficient on other grounds.
. The heading reads: "(3) Whether the trial court erred in finding that the adverse action was the suspension as opposed to the bad faith 'sham' peer-review.”
. At the outset of this section, Knatt does briefly reference the "hostile work environment” theory of discrimination. See generally Frank v. Xerox Corp.,
. The defendants contest these allegations, but we interpret the record in the light most favorable to Knatt, and assume they are true.
. The dissent states this testimony provides merely the "most graphic” evidence in the midst of other "extensive” evidence, but only cites additional circumstantial evidence.
. Bucionne previously testified that “when Dr. Lewis came into practice,” nurse Karen Redmond had been "the ringleader of” lunchroom discussions speculating that black doctors would attract patients incapable of paying their medical bills.
. The dissent argues that we should consider racist comments made by hospital staff in determining whether the summary suspension was racially motivated. But it does not—and cannot—point to any cases where racist comments by co-workers or staff were evidence of racial discrimination by the em
. This case differs from Jones v. Robinson Property Group, where we noted that the testimony "cite[d] specific statements and, especially in light of the summary judgment standard, [the plaintiff] provefd] with sufficient particularity when the statements were made and generally who made them.”
Dissenting Opinion
I respectfully dissent from section B. of the majority opinion. In that section, the majority gives its reasons for affirming the district court’s dismissal of Dr. Knatt’s
The main question we have in this case is the usual one we face in summary judgment cases: whether the plaintiff produced sufficient evidence to raise a genuine issue of material fact on a key issue. In this case the key issue is whether race played a role in the defendants’ suspension of Dr. Knatt from practicing as a physician at Lane.
Dr. Knatt was entitled to raise genuine issues of fact on this issue in two ways. First, he could present direct evidence of discrimination. Portis v. First Nat’l Bank,
Therefore, when Knatt alleged and argued that race played a role in his employer’s decision to suspend him, Knatt was entitled to prove this fact either by direct evidence or the McDonnell Douglas standard. Once the district court grants summary judgment, our task is to review that ruling de novo and consider “the record taken as a whole” drawing “all reasonable inferences in favor of the nonmoving party” and refrain from making credibility determinations or weighing of the evidence. Reeves v. Sanderson Plumbing Prods., Inc.,
This review includes consideration of whether a fact issue has been raised either under the McDonnell Douglas standard or the traditional direct evidence method of proof. For example in Jatoi v. HurstEuless-Bedford Hospital Authority, although the plaintiff failed to meet all four criteria of the McDonnell Douglas test, this court went on to examine the summary judgment record as a whole to determine if summary judgment was appropriate.
While proof of all four of the McDonnell Douglas criteria will establish a circumstantial prima facie case, such proof is not the exclusive means of establishing a plaintiffs preliminary burdens. In Byrd v. Roadway Express, Inc.,687 F.2d 85 , 86 (5th Cir.1982) the plaintiff established the first three criteria but could not establish the fourth because his position had been filled by another minority. As we stated in Byrd, “the focus of the inquiry may not be obscured by the blindered recitation of a litany.”687 F.2d at 86 . If a plaintiff cannot establish some or all of the McDonnell Douglas steps, the district court must examine all the evidence that has been adduced for other indicia of racial discrimination relating to his discharge and determine whether it is more likely than not that the employer’s*489 actions were based on illegal discriminatory criteria. Id.
Jatoi v. Hurst-Euless-Bedford Hospital Authority,
Racial animus, like any other fact, can be established by direct or circumstantial evidence. For example, in Fierros v. Tex. Dep’t of Health,
The summary judgment record includes an affidavit in which Fierros states that Arnold told her that she had been denied the pay increase because she filed a discrimination complaint against him. Such an affidavit is direct evidence that Arnold had a retaliatory motive because it “is evidence which, if believed, proves the fact [of intentional retaliation] without inference or presumption.”
Our determination that Fierros has raised a jury question about whether Arnold intended to retaliate against her when he denied her the merit pay increase is further supported by circumstantial evidence.
Id.
Thus, this court can look at all evidence in the record, both direct and circumstantial, to determine if Dr. Knatt has raised a genuine issue of material fact for trial. Dr. Knatt argued both in the district court and in this court that he was entitled to defeat the summary judgment motion based on the direct and circumstantial evidence which he described in his brief. Two full pages of Dr. Knatt’s brief are dedicated to a discussion of evidence of racial animus and how that evidence establishes discrimination. The remainder of the circumstantial evidence is discussed throughout his brief. Despite the fact that this is Dr. Knatt’s central argument in this appeal, the majority concludes that this issue is inadequately briefed to preserve the argument on appeal. Apparently the majority would require Knatt to tag each item of evidence as either supporting his argument of discrimination under the McDonnell Douglas standard or his argument of discrimination based on direct and circumstantial evidence. Such a requirement makes no sense. If a plaintiff can raise a genuine issue of material fact tending to show discrimination, the defendant’s motion for summary judgment must be denied.
Dr. Knatt complains of a conspiracy at the hands of the defendants that began before his suspension. Beginning in October 2001, an Ad Hoc Committee was appointed by the Executive Bylaws Committee of the Board of Lane Memorial to single out Dr. Knatt to review complaints about him, particularly any on-call incidents. The review lasted until January 2002. According to the deposition testimony of Dr. Rathbone and Dr. Fonte, the Board has never appointed a committee to investigate a hospital physician for on-call violations except Dr. Knatt.
The most graphic evidence of racial animus was provided by surgical nurse Marlene Bucionne. She testified that the nurses were ordered by Jeanne Partin (nurse supervisor and sister of orthopedic surgeon Dr. Fonte), Dr. Fonte and Terry Whittington, CEO, to monitor Dr. Knatt’s activities closely and document anything they could find on which to base a reprimand. This documentation was to be de
The extensive evidence presented by Dr. Knatt supports an inference that Dr. Knatt was being targeted for mistreatment and more intense scrutiny than other doctors because of his race. Nurse Bucionne’s testimony went directly to the defendants’ racial animus. She testified in her deposition that at least two of the three doctors on the MEC, Dr. Rathbone and Dr. Medina, used racial epithets in reference to Dr. Knatt at a meeting involving the investigation of Dr. Knatt. She also testified that she heard the third member of the MEC, Dr. Fonte, using racial epithets several times but did not provide the context for those comments. These are the same doctors who ordered Dr. Knatt’s suspension. Although her testimony is not entirely clear, the hospital CEO, Jeanne Partin and other nurses on the operating staff were part of that meeting and also used racial epithets in relation to Dr. Knatt. These are the same nurses who brought the complaints that were used to support Dr. Knatt’s suspension.
This direct evidence raised an issue of fact that racial animus played a role in the suspension of Dr. Knatt. The statements refer to race; they were made by the members of the MEC who ordered Dr.
Knatt’s suspension, i.e. the applicable decision makers; and they were related to the decision process because they occurred in a meeting at which the nurses were directed to gather evidence which was used as a basis for the suspension. Patel v. Midland Mem. Hosp. & Med. Ctr.,
Use of racial epithets in an employment context is direct evidence of discrimination sufficient to defeat summary judgment. In Brown v. East Miss. Elec. Power Ass’n, the plaintiff presented evidence that his supervisor used racial epithets both generally and in reference to him. We said—
Unlike certain age-related comments which we have found too vague to constitute evidence of discrimination, the term “nigger” is a universally recognized opprobrium, stigmatizing African-Americans because of their race.
Brown v. East Miss. Elec. Power Ass’n,
See Kendall v. Block, supra [821 F.2d 1142 (5th Cir.1987) ] (calling an employee “nigger” may be direct evidence of discrimination); EEOC v. Alton Packaging Corp.,901 F.2d 920 (11th Cir.1990) (general manager’s statement that if it were his company he would not hire blacks is direct evidence of discriminatory animus in failing to promote the plaintiff); Brewer v. Muscle Shoals Bd. of Educ.,790 F.2d 1515 (11th Cir.1986) (school superintendent’s comment that he did not want to appoint plaintiff to an administrative position because he did not want to see the school system “nigger-rigged” is direct evidence of discriminatory animus, even though the*491 comment was made with regard to an incident occurring after the alleged violation); Bibbs v. Block,778 F.2d 1318 (8th Cir.1985) (en banc) (selection committee member’s characterization of plaintiff as a “black militant” and reference to another black employee as “nigger” was direct evidence of discrimination in failure to promote), overruled on other grounds by Price Waterhouse[ v. Hopkins], supra [490 U.S. 228 ,109 S.Ct. 1775 ,104 L.Ed.2d 268 (1989) ].
Id. at 862.
The most obvious way of showing an unlawful employment practice is to offer “evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents ...” [citing Troupe v. May Department Stores Company,20 F.3d 734 (7th Cir. 1994) ] Examples include epithets or slurs uttered by an authorized agent of the employer.... When produced, such “direct” evidence will without more ordinarily suffice to show that an adverse employment condition, or limitation on an employment opportunity, was imposed “because of’ the plaintiffs protected group characteristic.
Civil Rights and Employment Discrimination Law, Harold S. Lewis, Jr. (West 1997), § 4.2.
The direct and circumstantial evidence of discrimination set forth above creates a genuine issue of fact on the question whether the defendants conspired to find a reason—pretextual or otherwise—to get rid of Dr. Knatt and that racial animus played a role in Dr. Knatt’s suspension. For this reason I would vacate the dismissal of Dr. Knatt’s § 1983 and § 1985 claims and remand this case to the district court for trial.