PHILADELPHIA – A federal court has dismissed all claims from a discrimination case brought by a former plastic surgery resident at Temple University Hospital, finding that the institution was entitled to complete summary judgment.
On Sept. 11, U.S. District Court for the Eastern District of Pennsylvania Judge Cynthia M. Rufe ruled in favor of Temple University Hospital, Inc., and dismissed the claims brought by plaintiff Judy Pan.
“In August 2016, Dr. Pan began her employment with Temple as a resident in plastic surgery. She completed the three-year program and as of Aug. 1, 2019, was no longer an employee of Temple. The program directors during Dr. Pan’s residency included Dr. Jim Fox and Dr. Sameer Patel. In 2017, at the beginning of Dr. Pan’s second year of residency, Temple put into place a written policy that a first-year resident who did not score at least in the 20th percentile on the in- service examination would be placed on remediation, and if they failed to meet the cut-off again in their second year, the resident would be placed on probation,” Rufe said.
“Dr. Pan scored below the cut-off and was placed on probation on July 11, 2018. Although other hospitals do not have such policies regarding these examinations, Dr. Pan testified in her deposition that she had seen the policy, that the policy stated that probation was a reportable status, meaning that it had to be reported to outside entities (including licensing boards), and that she understood the policy. Dr. Pan also testified that she knew she had been placed on academic probation on July 11, 2018, and she knew that if she did not score in the 20th percentile in her third year she would not be allowed to take the plastic surgery Board Examination for one year.”
During her third year, Dr. Pan once again did not score in the 20th percentile on the in-service exam, and was the only plastic surgery resident who did not meet the cut-off score in the third year of residency, resulting in her deferral from taking the Boards for a year.
However, Dr. Pan contended she was told that she had to defer, while D.A., a male resident, was permitted to register for the Boards before the scores were released – though, D.A. did meet the cut-off score.
“In addition to the probationary status related to the in-service exam, Dr. Pan was given a remediation plan based on several incidents relating to clinical matters. One of these occurred in October 2017. Dr. Pan was performing surgery under the supervision of attending surgeon Dr. Janelle Wagner, when Dr. Pan dissected too deeply into the pleural space of the patient. Dr. Pan repaired the defect and followed Dr. Wagner’s instruction to order a chest x-ray after the patient was moved to recovery. Dr. Pan did not review the x-ray, but before leaving the hospital, Dr. Pan spoke to the covering resident about the pending x-ray and also sent an email to J.M., the resident who would be covering overnight. Dr. Pan asserts that she followed the proper procedure, and that there was no formal policy as to such transitions of care or sign-outs. The overnight cover resident, J.M., did not check his email until the next morning. Only Dr. Pan faced repercussions for the incident,” Rufe stated.
“In June 2018, Dr. Wagner sent Dr. Patel an email detailing the October incident and other issues involving Dr. Pan, including the improper placement of a wound vacuum too close to a patient’s colostomy bag that resulted in the patient developing sepsis, a missed diagnosis of hand compartment syndrome, and failure to notify Dr. Wagner of a patient with a facial fracture. Dr. Pan was placed on remediation on July 11, 2018. On July 27, 2018, Dr. Pan wrote to Susan Coull, stating that she believed the remediation was unjustified and evidence of unfair treatment. On Aug. 10, 2018, Dr. Pan was placed on a performance improvement plan. Dr. Pan sent Dr. Patel an email on Aug. 12, 2018, in response to the PIP, stating that she ‘believed the grounds for remediation are unreasonable, biased and discriminatory.’ Dr. Pan stated in the email that she had discussed her concerns with ‘HR, the GME office, as well as the program director and chair’ but that she ‘could not make an official complaint.’ Dr. Pan successfully completed the PIP, and the remediation terminated on Dec. 5, 2018, although Dr. Pan states that she was not informed of this fact.”
On Nov. 8, 2018, Dr. Pan notified Dr. Patel that she had “matched” for a craniofacial plastic surgery fellowship at Stanford University, to begin after she completed her residency at Temple, and Dr. Patel wrote letters of recommendation for Dr. Pan’s application for this fellowship.
After Dr. Pan matched at Stanford, she submitted a Federal Credentials Verification Service form, which was completed by Tiffany Copeland, Temple’s program administrator, and signed by Dr. Patel.
The FCVS form as completed by Temple included “Yes” answers to two questions: “Was this individual ever placed on probation?” and “Were any limitations or special requirements placed upon this individual because of questions of academic incompetence, disciplinary problems or any other reason?”
In the explanation section, Temple stated that Dr. Pan was “placed on academic probation as a result of two consecutive years of failing to achieve the 20th percentile on the ASPS in-service examination per the program policy.”
“On Nov. 22, 2018, Dr. Pan applied for a medical license from the State Board of California and answered no to the question of whether she had been placed on probation for any reason, although she had been placed on academic probation four months earlier. On Feb. 18, 2019, the California Medical Board sent Dr. Pan an email noting Temple’s positive response on the FCVS and writing that Temple was required to provide a written explanation for this answer. Dr. Pan forwarded the email to Dr. Patel, who responded on Feb. 26, 2019, writing that Dr. Pan was placed on probation for failing to achieve the 20th percentile on the annual in-service exam for two consecutive years, and that Dr. Pan was placed on remediation that had been successfully completed,” Rufe said.
“Dr. Patel also wrote, ‘I recommend Dr. Pan receive her medical license and anticipate her successfully completing the Plastic Surgery Fellowship’ at Temple. Temple provided similar information again at the request of the California Medical Board in September 2019. On Sept. 26, 2019, the California Medical Board provisionally denied Dr. Pan an unrestricted license based on her failure to disclose that she had been placed on academic probation. The letter did not refer to remediation. Dr. Patel wrote to the Board on Oct. 1, 2019, urging that it issue Dr. Pan an unrestricted license. On December 31, 2019, the Board issued a full, unrestricted medical license to Dr. Pan. Dr. Pan completed her fellowship at Stanford and is now employed as an attending plastic surgeon at the University of Maryland in Baltimore.”
Rufe said as there was no “direct evidence of discrimination” in the case, the framework as established in McDonnell Douglas Corp. v. Green would govern her analysis: This requires that the employee first establish a prima facie case, after which the employer must come forward with a legitimate, non-discriminatory reason for the adverse employment decision – which then shifts to the plaintiff needing to prove a pre-textual reason for that decision.
“The evidence shows that any adverse employment action was not the result of a discriminatory act by Temple. It is undisputed that Temple put into place a written policy stating that any student who failed to reach the 20th percentile on the in-service exam two years in a row would be placed on academic probation and that such probation was a reportable status. It is undisputed that Dr. Pan was placed on academic probation for this reason. It is undisputed that Temple’s FSCV form accurately reported this academic probation. It is undisputed that plaintiff did not report to the California Medical Board that she had been placed on academic probation. The record unambiguously shows that the reason for the delay in Dr. Pan receiving an unrestricted medical license in California was because Dr. Pan did not report that she was on probation. Whether or not the remediation was a reportable status is a red herring; the inquiries from the California Medical Board did not mention remediation and instead sought an explanation as to why Dr. Pan had not reported her probationary status,” according to Rufe.
“In addition, Dr. Pan has not shown that the remediation or the PIP otherwise constituted an adverse employment action. The Court of Appeals for the Third Circuit has held that placement on a PIP does not qualify as an adverse employment action unless there is evidence that it is ‘accompanied by an adverse change in the conditions of…employment.’ Even if Temple’s policy concerning the in-service exam scores were unwise or contrary to other schools’ policies, ‘it is not enough for a plaintiff to show that the employer’s decision was wrong or mistaken, because the issue is whether the employer acted with discriminatory animus.’ Dr. Pan has not produced evidence from which a reasonable fact-finder could conclude that Temple acted with such animus or that similarly situated male residents were treated differently. There is no evidence that any other Temple student failed to obtain the required minimum score on the in-service exam in their third year.”
Rufe also pointed out the fact that D.A. met the cut-off score, while Dr. Pan did not, and added that summary judgment was ultimately called for in this case.
“With regard to placement on remediation, Dr. Pan has not shown that the other residents were similarly-situated to her. The email discussions that preceded the remediation establish that there were several incidents where Dr. Wagner and others had concerns with Dr. Pan’s surgical performance and with her communication and follow-up. With regard to the October incident, Dr. Wagner regarded Dr. Pan, as the surgeon, as having the responsibility to follow up on the patient. Therefore, the covering residents were not similarly-situated to Dr. Pan. In addition, Dr. Pan has not shown that male residents had similar clinical issues and were not subject to remediation,” Rufe said.
“Even if Dr. Pan did establish a prima facie case, summary judgment would be warranted. As explained above, Temple has put forth non-discriminatory reasons for its actions, including with regard to the information reported to the California Medical Board. A reasonable fact-finder could credit Temple’s explanations, and therefore the burden shifts back to plaintiff to demonstrate that the ‘proffered reason is merely pretext for intentional discrimination’ For the reasons previously explained, Dr. Pan has not shown pretext. Although Dr. Pan disagrees with Temple’s actions, a reasonable fact-finder could not conclude that discrimination likely animated Temple’s actions.”
Citing lack of substantiation, Rufe also approved the dismissal of Dr. Pan’s counts for hostile work environment, retaliation and breach of contract, and granted the defendant’s motion for summary judgment dismissal in its entirety.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-03695
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com