The Sixth Circuit Court of Appeals recently ruled that a Vanderbilt University medical professor had not proven that she was treated less fairly because of her gender and upheld the district court’s summary judgment in Vanderbilt’s favor based on its determination that she had failed to identify suitable male comparators and because she failed to make out a prima facie case of gender discrimination.
In Simpson v. Vanderbilt University, No. 16-5381 (6th Cir. May 22, 2017), plaintiff Jean Simpson was a professor in the Vanderbilt Medical School and was employed by the medical school and the Vanderbilt Medical Group. While she was employed, she started, ran and solicited clients for her own private medical practice, actions which Vanderbilt believed were in violation of its conflicts of interest policy, among other policies. After trying unsuccessfully to resolve the matter, Vanderbilt terminated her employment and she filed suit alleging violations of both Title VII of the Civil Right Act and the Tennessee Human Rights Act because of her gender. As noted, the district court granted summary judgment to Vanderbilt and Simpson appealed.
Dr. Simpson began her employment at Vanderbilt in 1997 and at the time of her termination, she was a full-time faculty member in the Division of Anatomic Pathology, which formerly included a dedicated breast pathology consult service. That dedicated service was eliminated in 2012 and general surgical pathology took over the practice. While the reorganization was still pending, Simpson began her own company, Breast Pathology Consultants, Inc. (“BPC”), which provided services that were virtually identical to the dedicated breast pathology consult service, and without Vanderbilt’s knowledge, began actively soliciting pathologists for whom she had previously provided services offering them services through her company. During this time, she continued to be a Vanderbilt employee but from February 2012 through October 2013, she collected nearly $250,000 in fees through her company in addition to her Vanderbilt salary.
In the summer of 2012, Vanderbilt discovered Simpson’s arrangement with BPC, and over the next year repeatedly informed her that she was violating the medical group’s conflict of interest policy, among other things, and demanded that she cease her work through BPC or face possible disciplinary action, including termination. She eventually filed an updated conflict disclosure form in which she disclosed her work with BPC but she otherwise denied that her activities conflicted with Vanderbilt and claimed that several male colleagues had engaged in similar activity and were allowed to maintain their outside practices.
Vanderbilt appointed a faculty committee that investigated the claims and determined that Simpson’s conduct violated the conflict of interest policy and also constituted neglect of duty. It recommended that Simpson be fired for cause and be forced to return the payments she received through her outside business. She was offered the option of resigning in lieu of termination if she paid Vanderbilt the funds she earned from her business, which she refused to do. After she was terminated for cause, she filed her lawsuit alleging violations of both Title VII and the Tennessee Human Rights Act based on gender discrimination. The district court granted summary judgment in favor of Vanderbilt because it determined that she failed to make out a prima facie case under the McDonnell Douglas burden-shifting framework and that even if she had, she failed to demonstrate that the stated reason for her termination was a pretext.
In reviewing the district court’s ruling, the Sixth Circuit first noted that to make out a prima facie case under McDonnell Douglas, a plaintiff must demonstrate that: 1) she is a member of a protected class; 2) she was subjected to an adverse job action; 3) she was qualified for the position; and 4) similarly situated male employees were treated more fairly. Because the parties agreed that she met the first three criteria, the appeals court confined its analysis of the district court’s ruling to addressing the “similarly situated” prong. It stated that in order for a person to be considered a similarly situated comparator, Simpson needed to prove that all the relevant aspects of her employment situation were “nearly identical” to those of the cited male employees. As an example, it stated that “similarly situated” in an employment context means that comparators must have dealt with the same supervisor, been subjected to the same standards and have engaged in similar conduct without differentiating or mitigating circumstances.
Dr. Peter Donofrio, the comparator that Simpson attempted to use, worked briefly for the “Best Doctors” website while he was a Vanderbilt employee and disclosed that work on his 2011 conflict of interest form. After he disclosed this work, Vanderbilt instructed him to cease his engagement with the website. While he initially complied, he resumed his work with Best Doctors in 2012, which Vanderbilt learned about during discovery in this matter. Vanderbilt conducted a disciplinary review as a result and while he was not terminated, he was required to pay $122,000 in fees to Vanderbilt and was put on two-years’ probation. As such, the court determined that his case was clearly different from Simpson’s since at a minimum, Dr. Donofrio ceased working when confronted and paid back the tainted earnings. The court further found that the additional male doctors she referenced were also not similarly situated because they had primarily been granted permission by Vanderbilt, after disclosure, to earn outside income as they transitioned either to retirement or private practice.
Based on the above, the Sixth Circuit affirmed the trial court’s summary judgment decision as it agreed that Simpson had failed to meet the fourth McDonnell Douglas factor.