Under Title VII of the Civil Rights Act of 1964, you are prohibited from discriminating against individuals based on several protected classes, including race and national origin. In the following case, an Arkansas Children’s Hospital (ACH) physician claimed that his ethnicity and national origin prompted the revocation of his hospital privileges. Read on to learn how the Eighth U.S. Circuit Court of Appeals (which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) handled his claims.
“Sham” Peer Review Leads to Federal Court Case
Dr. Nabil K. Bissada was a pediatric urologist at ACH until his hospital privileges were suspended in January 2007. According to an investigation conducted by an ad hoc hospital committee, Bissada consistently demonstrated:
- delays in performing surgical procedures, which led to questionable outcomes;
- lack of communication with physicians and parents about medical issues;
- high cancellation rates for surgeries and appointments;
- a high rate of complications in his care cases; and
- general lack of judgment in handling his assignments.
Bissada initially was hired by the University of Arkansas to serve as president of the urology department. He later accepted a position as chief of pediatric urology at ACH. Nevertheless, several of his peers felt he wasn’t meeting his responsibilities. In turn, Bissada felt he’d been subjected to a “sham” peer-review process and discriminatory treatment because he is of Egyptian national origin and an Egyptian Copt (a sect of Egyptian Christians). He responded by filing discrimination claims under both Title VII and 42 USC § 1981. A district court dismissed his claims, and he appealed to the Eighth Circuit.
“Nothing Serious” Leads to Pretext Charge
Bissada argued there was “nothing serious” with any problems in his practice. He claimed that the hospital was motivated by money and plagued by incompetence in its patient scheduling practices, all of which he contended led to the allegations against him.
Bissada and his lawyers were prepared to participate in an administrative hearing until Bissada allegedly entered into a settlement agreement. However, Bissada later argued that he didn’t agree to the terms of the agreement because he never signed a settlement document.
In examining the contested settlement agreement, the Eighth Circuit confirmed that the law office representing Bissada had, in fact, sent an e-mail agreeing to the settlement, as argued by the hospital’s lawyers. Concurring with the district court’s findings, the court of appeals noted that while he may not have signed a final formalized agreement with ACH, he did make a settlement offer that ACH’s counsel orally accepted and ACH relied on in canceling the administrative hearing.
Bissada next argued that his Egyptian national origin prompted the adverse treatment (revocation of his hospital privileges) imposed by the hospital. The court noted that to the extent that he was attempting to claim national origin discrimination under Section 1981, his charge could not stand. That’s because Section 1981 addresses only race discrimination. Nonetheless, according to the court, “even if Bissada’s claim is based upon race as an ‘Egyptian Copt,’ he nonetheless provided insufficient evidence to show that ACH’s legitimate race-neutral reasons for the suspension of his privileges were pretextual.”
Bissada tried to support his pretext claim by arguing the following:
- Notes in medical records referenced “cultural” differences between Bissada and his nurses.
- A physician commented to him on one occasion that he “was not one of us,” thus purportedly exhibiting a discriminatory motive.
The Eighth Circuit wasn’t troubled by those isolated events, noting that Bissada had presented no evidence that the nurses or the other doctor exerted any control over the review committee’s decision to revoke his hospital privileges. In fact, there was no evidence that the committee was ever aware of or took into consideration any of the evidence Bissada offered in claiming he was a victim of race or national origin discrimination. Thus, the Eighth Circuit affirmed the district court’s decision dismissing his discrimination claims. Bissada v. Ark. Children’s Hosp ., 2011 U.S. App. LEXIS 9674 (8th Cir., Ark. 2011).
Employment Tip
A couple of observations jump out at us from this case. Initially, Bissada attempted to argue that he didn’t agree to forgo the administrative hearing because he never signed a settlement agreement with the hospital. His claim was essentially a contract argument. Nevertheless, it failed because there was evidence of an offer (the e- mail his lawyer sent to opposing counsel) and acceptance (the hospital’s cancellation of the administrative hearing based on the terms of the settlement agreement).
If you enter into an agreement to resolve an employment claim with an employee, make sure the terms of the offer are (1) clear and unambiguous and (2) expressed in writing. Additionally, make sure you receive some manifestation of acceptance of the terms from the other party. Bissada apparently had a change of heart about losing his opportunity for a hearing. However, “buyer’s remorse” and lack of a signature were insufficient to nullify the agreement his lawyer made.
A second point is that stray remarks by nondecisionmakers, even if the remarks are arguably discriminatory, will not bolster the merits of a discrimination claim. Although Bissada pointed to remarks by coworkers to support his charge, the review committee didn’t consider any of that evidence in determining that his privileges should be revoked.
When making an adverse employment decision, make sure the evidence you’re relying on is objective, accurate, and not tainted by discriminatory animus. Also, ensure that decisionmakers aren’t influenced by the discriminatory motives or biased actions of lower- level managers. In business, the acronym “GIGO” (garbage in, garbage out) describes how a decision can be tainted if the information on which it is based is “garbage.” Similarly, an employment decision is only as good as the facts on which it is based. Make sure your employment decisions are thoroughly investigated, founded on objective facts, and not influenced by bias.