Labor & Employment Law Daily VA doctor’s race discrimination, retaliation claims for facing peer review fare no better on appeal
Thursday, July 19, 2018

VA doctor’s race discrimination, retaliation claims for facing peer review fare no better on appeal

By Lisa Milam, J.D.

An African-American VA physician was unable to revive his race discrimination and retaliation claims alleging he was subjected to peer review on a patient case while white physicians involved in the patient’s care were not, and subjected to review on another patient case in retaliation for filing an EEO complaint about the first incident. The Fifth Circuit held the district court had properly disposed of his reprisal claim for lack of subject matter jurisdiction, as he had filed a pro se retaliation claim before the administrative exhaustion period had run its course, and correctly granted summary judgment in favor of the VA as to the merits of his Title VII race bias claim (Stroy v. Gibson, July 17, 2018, Elrod, J.).

The employee, a primary care physician, saw a patient with a history of numerous bouts of cancer. He examined the patient and ordered lab tests. Two days later, the patient returned and saw a different clinic physicians; six days later, yet another physician saw the patient. A few weeks later, the patient returned again, and the plaintiff examined him, ordered lab tests, and adjusted his medication. He did not review the lab test results, though, when they came back, as he was on leave. Two days after the plaintiff had seen the patient for the second time, a clinic psychiatrist saw him, and on the same day, the patient was admitted to the medical center with acute renal failure.

Performance reviewed. Under these circumstances, a routine peer review is triggered. A committee reviewed the plaintiff’s treatment of the patient; it did not, however, look into the patient’s treatment at the hands of the other clinic physicians. The committee’s initial finding was that most competent physicians would have managed the patient’s case differently. The plaintiff pushed back, citing irregularities in the procedure and asking for a chance to respond. A second review was scheduled (then cancelled and rescheduled). Meanwhile, the plaintiff contacted an EEO counselor. In the second proceeding, the plaintiff appeared before the committee by teleconference, and the committee revised its earlier finding and now concluding that another competent physician would have handled the patient’s case the same way. Although the committee had essentially cleared him, the plaintiff filed a formal discrimination complaint nonetheless.

Scrutinized again. About nine months later, the plaintiff was questioned again, this time for leaving a patient in an exam room and leaving for lunch. The plaintiff said the patient was there because he was waiting for a follow-up with a nurse or social worker. An investigation was opened, and the plaintiff had to travel for a fact-finding meaning. He was admonished by memo, which also outlined expectations for the plaintiff’s conduct in the future. That prompted the plaintiff to seek to amend his agency complaint to add a retaliation claim.

Procedural background. An EEO judge denied his request to amend his original EEO complaint to add a retaliation claim, so he submitted a separate EEO complaint alleging retaliation. He did not wait the requisite 180 days later, though, before filing his pro se action in federal court alleging discrimination and retaliation. (He was just two days’ shy of exhausting this requirement). As such, the district court dismissed his retaliation claim on jurisdictional grounds. It also granted summary judgment in the VA’s favor on the merits of his underlying race discrimination claim.

On appeal, the plaintiff argued the retaliation claim should not have been disposed of on jurisdictional grounds because administration exhaustion was not a jurisdictional requirement. As for his discrimination claim, he insisted he made out a prima facie case that he was improperly subjected to peer review while the white physicians who had cared for the patient had escaped scrutiny.

Not jurisdictional, but no error. The Fifth Circuit has previously held that administrative exhaustion is not a jurisdictional requirement, so the plaintiff was correct on that point. Still, the appeals court would not disturb the decision below, noting that “even though administrative exhaustion is not a jurisdictional requirement, it is still a requirement.” The plaintiff insisted he made a “good faith effort” to comply with the administrative process and that equitable principles should excuse his premature court filing in this instance. However, he failed to offer a convincing justification for why he breached the filing rules, and why the court should have excused that breach. So dismissal of his retaliation claim was affirmed.

No adverse action. Moreover, the plaintiff had not suffered an adverse employment action under Title VII. As a matter of agency policy, the VA is quite clear that its peer review process serves only to improve patient care, and the information gathered during such reviews expressly “may not be used for personnel actions, disciplinary action, to affect privileges, or to affect employment.” The peer review process did not affect his privileges or conditions of employment; it had no effect on his pay or job privileges. Moreover, even if such reviews could be considered adverse job actions as a general matter, in this case, the peer review committee revised its initial adverse determination anyhow. As such, the plaintiff could not meet the Fifth Circuit’s “stringent” standard for establishing an adverse employment action, so the district court properly dismissed his race discrimination claim on summary judgment.

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