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University of Texas Health Science Center at Tyler v. Nawab

Court of Appeals of Texas, Sixth District, Texarkana

April 21, 2017

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT TYLER, Appellant
v.
KHURRAM NAWAB, Appellee

          Date Submitted: March 16, 2017

         On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2015-680-CCL2

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          RALPH K. BURGESS, JUSTICE

         After being warned that his progress in medical knowledge and patient care was not satisfactory, Khurram Nawab, a first-year resident in the University of Texas Health Science Center at Tyler's (Texas Health's) Internal Medicine Residency Program, was notified that his contract would not be renewed for a second year. After his contract ended, Nawab, who is of Pakistani descent, filed a charge of discrimination with the appropriate state and federal agencies alleging that Texas Health had discriminated against him based on his race, color, and national origin and that he had suffered retaliation by Texas Health. Subsequently, Nawab filed this lawsuit against Texas Health asserting causes of action under the Texas Commission on Human Rights Act (TCHRA) for retaliation, [1] hostile work environment, and discrimination based on his race, religion, and national origin[2] and for intentional infliction of emotional distress.[3]

         Sixteen months after the suit was filed, Texas Health filed a plea to the jurisdiction, which the trial court granted in part, dismissing Nawab's claims for religious discrimination, intentional infliction of emotional distress, and punitive damages.[4] However, the trial court denied the plea as to Nawab's other claims under the TCHRA. In this interlocutory appeal, [5] Texas Health challenges the trial court's denial of its plea to the jurisdiction on Nawab's remaining TCHRA claims. We will reverse the trial court's judgment.

         I. Background

         The undisputed evidence shows that Nawab was admitted into Texas Health's Internal Medicine Residency Program (the Program) on July 1, 2012, as a PGY-1[6] resident. On October 3, 2012, Nawab was placed on academic remediation by the Program's director, Dr. Emmanuel Elueze. In a meeting on November 29, 2012, Elueze advised Nawab of ongoing concerns with his progress in medical knowledge and patient care, of concerns that he was not prepared for rounds, of his tardiness, and of his lack of advancement from his previous floor rotation. Nawab was also advised that based on his performance at that point, he would not be advancing to second year. Nawab and Elueze signed a written summary of the November 29 meeting.

         At a subsequent meeting on February 6, 2013, Elueze and others met with Nawab to follow up with his remediation and to inform him of a recommendation from the Clinical Competency Committee, which met on January 31. A summary of that meeting, signed by Elueze and Nawab, states, in relevant part,

Dr. Nawab has significant deficits in the core clinical competencies of Medical knowledge, Patient Care and Professionalism. Based on Dr. Nawab's current performance, his contract will not be renewed at the end of this academic year. This is also being communicated to him, so that he can begin making other plans as appropriate for him.
. . . .
The program will review Dr. Nawab's performance, including if he will get full, marginal or no credit for the academic year at April clinical competency committee meeting.
Dr. Elueze informed Dr. Nawab that in the next couple of months, the program will need to see drastic improvement, not minimal improvement.
In a letter dated April 26, 2013, Elueze informed Nawab, in relevant part, as follows:
[The Program's] Clinical Competency Committee met on April 25, 2013, to review and discuss the second quarter multisource evaluations.
Following is an account of your report, and any necessary action to be taken with your mentor or program administration:
Performance: Remediation
Action: Non-renewal of contract

         Apparently, sometime after the non-renewal of his contract, Nawab requested a review of the non-renewal by the Graduate Medical Education Committee of Texas Health. By letter dated July 17, 2013, Dr. Jonathan MacClements, the Director of Medical Education, informed Nawab that the committee had determined that Nawab was provided with appropriate guidance, opportunity to remediate, and notice of non-renewal in accordance with the Program's handbook. On September 19, 2013, Nawab filed a charge of discrimination with the Texas Workforce Commission Civil Rights Division (CRD) and the Equal Employment Opportunity Commission, alleging that Texas Health had discriminated against him based on his race, color, and national origin and that it had retaliated against him after he complained of harassment, ethnically offensive comments, and mimicking of his accent. After receiving a notice of right to file a civil action from the CRD, Nawab filed this lawsuit on April 15, 2015.

         In his petition, Nawab made general allegations that he "suffered instances of discrimination on the basis of his Pakistani race . . . and national origin, " that "[t]he core faculty members and employees" of Texas Health "made offensive and derogatory comments during the time that he was employed there, " and that after he "complained about the way he was being treated . . . [he] faced . . . numerous false allegation regarding his competency." He also alleged that as a result of his complaints, he was discharged as a medical resident and that "[h]is termination, the retaliation[, ] and the harassment were all on the basis of his race, religion[, ] and national origin." Nawab's petition only recites two factual examples supporting those allegations.

         In the first example, Nawab alleges that "[o]n one occasion" Dr. Vazza-Zeid criticized him after he performed a pap smear and "repeated the statements [Nawab] made with the patient mocking his accent." His second example states:

During Plaintiff[']s nephrology rotation with Dr. Vij, Dr. V. Reddy, Dr. Shakamuri[, ] and Dr. McDonald, Plaintiff experienced discrimination. Dr. Vij, Dr. V. Reddy and Dr. Shakamuri were Hindu/Indian. Dr. V. Reddy asked where Plaintiff was from and if he ate "Halal." Dr. Shakamuri told Plaintiff a story about how the city of Hyderabad, India[, ] was occupied by the Muslims and the Hindu army came and kicked them out. Dr. Vij stated that Plaintiffs medical knowledge was very weak and told the other three attendees to fail Plaintiff[, ] and they did.

         The petition then asserts causes of action under the TCHRA for retaliation, hostile work environment, and termination based on his race, religion, and national origin.

         Sixteen months after filing its original answer, Texas Health filed its plea to the jurisdiction challenging whether Nawab's pleadings affirmatively showed the trial court's jurisdiction and denying the existence of facts that would give the trial court jurisdiction. Attached to the plea to the jurisdiction were the affidavits of Elueze and MacClements, the summaries of the November 29 and February 6 meetings, and a July 17 letter from MacClements. In addition to asserting that Nawab had failed to exhaust his administrative remedies, Texas Health asserted that Nawab had failed to plead a cause of action under the TCHRA and challenged the existence of facts that would show that Nawab had a cause of action under the TCHRA.

         Nawab responded to the plea to the jurisdiction and attached his own affidavit and the April 26 letter from Elueze. In his affidavit, Nawab repeated the factual allegations made in his original petition, adding that two doctors of Indian descent were critical of him while they supported the Indian residents, but otherwise did not allege any new facts that could be described as discrimination based on race or national origin.[7] After a hearing, the trial court granted Texas Health's plea to the jurisdiction as to Nawab's claims for ...


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