United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3858

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Lee A. Davis, M.D., *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Jefferson Hospital Association, dba *

Jefferson Regional Medical Center; *

Robert P. Atkinson, CEO Jefferson *

Regional Medical Center; Lon Bitzer, *

M.D.; Shabbir Dharamsey, M.D.; *

Horace Green, M.D.; David Lupo, * 

M.D.; Charles Mabry, M.D.; M. Bilal *

Malik, M.D.; Reid Pierce, M.D.; *

Ruston Pierce, M.D.; James Alan *

Pollard, M.D.; Ron Pritchard, M.D.; *

JoAnn Mays, *

*

Appellees. *

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Submitted: January 12, 2012

Filed: July 12, 2012

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Before BYE, SMITH, and COLLOTON, Circuit Judges.

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SMITH, Circuit Judge.
Dr. Lee A. Davisfiled this action against Jefferson Hospital Association, doing

business as Jefferson Regional Medical Center (JRMC); JRMC Chief Executive

Officer Robert P. Atkinson; and 12 physicians at JRMC (collectively, "the

defendants"). In his amended complaint, Davis alleged, inter alia, race discrimination

and retaliation, in violation of 42 U.S.C. § 1981 and the Arkansas Civil Rights Act

(ACRA), and conspiracy to interfere with his civil rights, in violation of 42 U.S.C.

§ 1985(3). The district court granted summary judgment to the defendants and

1

dismissed all of Davis's claims. Davis appeals the dismissal of his § 1981, § 1985(3),

and ACRA claims. We affirm.

I. Background

Davis, an African-American cardiologist, obtained medical-staff privileges at

JRMC in 2003. Article 2.1 of the JRMC Medical Staff Credentialing Policy provides:

General Qualifications—Medical staff appointment . . . and clinical

privileges are privileges extended by the hospital, and not a right of any

individual. Continued exercise of any such status or privileges is

contingent upon compliance with the Medical Staff Bylaws, this policy,

and staff and hospital rules. Appointment to the staff and associated

clinical privileges shall be extended only to professionally competent

physicians and dentists who continuously meet the qualifications and

requirements set forth in this policy, conform to the standards of patient

care imposed by law and herein, and continuously demonstrate an ability

to work harmoniously with others in the orderly rendering of quality

patient care. . . .

From 2004 to 2006, Davis was involved in several disputes with JRMC staff

in which staff alleged that Davis made abusive, sexually offensive, profane, or

derogatory remarks. In August 2004, Sherry Yeggy-Nail, a registered nurse, filed a

The Honorable D. Price Marshall, Jr., United States District Judge for the

1

Eastern District of Arkansas. 

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written complaint against Davis for his use of "hostile and abusive language." In

November 2005, Morie Mehyou, an administrative employee atJRMC, reported that

Davis called him an "idiot." On January 25, 2006, at least seven hospital employees

complained that Davis had lashed out at an entire floor of nurses with hostile and

inappropriate language. A family member of a JRMC patient also filed a written

complaint that Davis was "inappropriate" and "rude" to the nurses on the floor. Davis

admitted that he used profanity with JRMC staff. 

Several JRMC personnel also reported that Davis made threats or tried to

intimidate them. In February 2006, Wendy Green, Lead Compliance Auditor at

JRMC, reported that Davissaid "he was going to make bad things happen" to another

doctor at JRMC. The next month, Angela Bryant, an administrative assistant,

expressed concern that Davis "ha[d] become paranoid and ha[d] gotten out of control

with his behavior." Also in March 2006, Manager of Admissions Brian Miller

reflected on an encounter that he had with Davis, which he viewed as "an attempt to

intimidate [Miller]." On April 3, 2006, Dr. Reid Pierce reported that Davis asked him

how he was doing, to which he responded, "Fine." Davis then said, "You won't be for

long."

On May 16, 2006, the JRMC Credentials Committee, which reviews medical

staff privileges at JRMC, informed Davis that it would be investigating his conduct.

The Invasive Procedures Committee also referred "quality of care issues" involving

Davisto the Credentials Committee. Quality of care issuesincluded "lack ofresponse

to nurse calls for patient care matters; inadequate response times to patients admitted

to critical care units; assigning call response to his AHP nurse; poor documentation

on patient records . . . ; [and] refusal to abide by the request of leadership to remedy

poor charting." "[T]he final result of that initial investigation was a corrective action

[plan]." The plan directed Davis not to "use threatening or abusive language," "use

degrading or demeaning comments," "use profanity or similarly offensive

. . . language," "make inappropriate physical contact with another individual that is

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threatening or intimidating," or "make derogatory comments about the quality of care

being provided by the Hospital." The plan also required timely and accurate

maintenance of records, quick response to calls from medical staff, submission to

random drug tests, and participation in an approved anger management course. 

According to Dr. David Lupo, Credentials Committee Chairman, Davis "failed

to comply" with the corrective action plan. On December 18, 2006, the Credentials

Committee "voted unanimously to approve the suspension of clinical privileges for

[Davis] for non-compliance with the Committee's requirement to select an approved

Behavior/Conduct Course . . . until such time that he fully comes into compliance."

JRMC's attorney met with the Credentials Committee three days later, and as a result

of the meeting, the Committee "table[d] the suspension of clinical privileges for

[Davis] until after the first of the year to allow ample time for research."

Thereafter, other quality of care and behavioral issuessurfaced. In March 2007,

the Credentials Committee appointed a seven-member Ad Hoc Committee to

investigate Davis for the second time. During the investigation, the Ad Hoc

Committee considered a report by Dr. Charles Mabry, Medical Director of Quality

at JRMC, regarding quality concerns surrounding Davis. The report concluded that

"[by] anymeasure, Dr. Lee Davis's care of patients has been in an outlier status." The 2

ad hoc committee also considered a peer review report, which indicated that from

Davis proffers evidence in the form of an affidavit by another physician 2

indicating that Davis did not fail to respond in one of the patient cases that Mabry

reported. He also includes in the record a self-serving affidavit, drafted in response

to a motion for summary judgment, which admits to medical-record delinquencies in

2004 and 2007 but alleges that he was "caught[]up in April 2007." Self-serving

affidavits do not defeat a "properly supported motion for summary judgment."

Frevert v. Ford Mtr. Co., 614 F.3d 473, 473 (8th Cir. 2010) (quotations and citation

omitted). "Rather, the plaintiff must substantiate allegations with sufficient probative

evidence that would permit a finding in the plaintiff's favor." Id. at 473–74

(quotations and citation omitted).

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August 2006 to March 2007, the number of deficiencies in Davis's medical records

were more than five times higher than the average of all other cardiologists atJRMC.

JRMC had suspended Davis's privileges twice in 2004 for record delinquencies. A

report of cardiac catheterization cases at JRMC indicated that, between 2004 and

2006, diagnostic-only catheterizations comprised a higher percentage of Davis's

cardiology procedures than any other cardiologist. The Ad Hoc Committee did not

render a judgment "regarding the area of utilization," but noted "that the information

provided to the committee was potentially significant and deserved to be reviewed in

the peer review process or by outside experts."

"Following a report to the Credentials Committee . . . of the findings of the Ad

Hoc Investigative Committee," Davisreceived a cautionary,fourteen-day suspension.

After further review of Davis's patient-death cases, four of which were found to be

below the standard of care, the Credentials Committee "recommended that [Davis]

have his privilegesrevoked." Davis exercised his right to appeal the recommendation

to a hearing panel consisting of five physicians. Following more than 13 separate

hearings over the course of three months, the hearing panel voted unanimously to

recommend revocation of Davis's privileges. Davis appealed again to a four-member

review panel. The review panel voted unanimously to accept the recommendations

of the Credentials Committee and the hearing panel. JRMC's 14-member Board of

Directors then voted to revoke Davis's medical-staff privileges for poor quality of

patient care, improper medical documentation, and unprofessional behavior.

Davis filed the instant suit in federal district court alleging, inter alia, race

discrimination and retaliation, in violation of 42 U.S.C. § 1981 and the ACRA; and

conspiracy to violate his civil rights, in violation of 42 U.S.C. § 1985(3). The final 3

scheduling order instructed the parties to complete discovery no later than

Davis does not appeal the dismissal of his due process or § 1983 claims or his

3

claims for tortious interference with a business expectancy. 

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November 29, 2010. The defendants filed a series of summary judgment motions,

ultimately reaching all of Davis's claims. Davis sought a continuance under thenapplicable Federal Rule of Civil Procedure 56(f). The district court denied Davis's 4

motion for a continuance and granted the defendants' motionsfor summary judgment.

II. Discussion

On appeal, Davis argues that the district court erred by entering summary

judgment in favor of the defendants on his race discrimination, retaliation, and

conspiracy claims and by denying his request for a continuance. 

A. Summary Judgment

Davis contends that the defendants are not entitled to summary judgment on

his race discrimination, retaliation, and conspiracy claims. "We review de novo the

district court's grant of summary judgment." Davis v. KARK-TV, Inc., 421 F.3d 699,

703 (8th Cir. 2005). "Summary judgment is appropriate if there is no genuine issue

as to any material fact and the moving party is entitled to a judgment as a matter of

law." Id.(quotation and citation omitted). "The burden of demonstrating that there are

no genuine issues of material fact rests on the moving party," and "[w]e review the

evidence and the inferences that reasonably may be drawn from the evidence in the

light most favorable to the nonmoving party." Id. (quotations and citations omitted).

1. Discrimination Claims

Davis alleges that the district court erroneously granted summary judgment on

his race discrimination claims pursuant to 42 U.S.C. § 1981 and ACRA. "We analyze

. . . § 1981 claims . . . and ACRA claims in the same manner." Id. When there is no

direct evidence of discrimination, "[w]e employ the familiar McDonnell Douglas

"Subdivision (d) carries forward without substantial change the provisions of 4

former subdivision (f)." Fed. R. Civ. Pro. 56 advisory committee's note to 2010

Amendments, subdivision (d).

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burden-shifting framework to conduct our analysis." Id. at 704; see McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 801–04 (1973). "Under the McDonnell

Douglas framework, a presumption of discrimination is created when the plaintiff

meets [his] burden of establishing a prima facie case of employment discrimination."

Davis, 421 F.3d at 704 (quotation and citation omitted). A plaintiff meets this burden

"by showing that he or she: (1) is a member of a protected group; (2) was meeting the

legitimate expectations of the employer; (3) suffered an adverse employment action;

and (4) [suffered] under circumstances permitting an inference of discrimination."

Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005) (quotation and

citation omitted). "Once a plaintiff successfully establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non-discriminatory reason for

its adverse employment action." Davis, 421 F.3d at 704 (quotation and citation

omitted). "If the employer meets its burden, the presumption of discrimination

disappears, requiring the plaintiff to prove that the proffered justification is merely

a pretext for discrimination." Id. (quotation and citation omitted).

The defendants concede that Davis is a member of a protected group who

suffered an adverse employment action. However, they contend that Davis failed to

submit evidence which would permit a jury to infer that discrimination motivated the

employment action. They argue that legitimate reasons—not pretext—justified

revoking Davis's privileges atJRMC. The defendants argue that they revoked Davis's

privileges because of his behavior toward hospital staff, his poor record of patient

care, and his failure to maintain proper medical records. Davis argues that he has met

the burden of proving his prima facie case because the defendants treated similarly

situated individuals who are not African American differently than Davis. He also

argues that the court can infer discrimination from the conduct of JRMC staff and

from evidence that the hospital violated some of its own policies in revoking his

privileges.

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a. Similarly Situated Personnel

The test for whether employees are similarly situated "is rigorous and requires

that the other employees be similarly situated in all relevant aspects before the

plaintiff can introduce evidence comparing [himself] to the other employees." Fields

v. Shelter Mut. Ins. Co., 520 F.3d 859, 864 (8th Cir. 2008). "The individuals used for

comparison must have dealt with the same supervisor, have been subject to the same

standards, and [have] engaged in the same conduct without any mitigating or

distinguishing circumstances." Morgan v. A.G. Edwards &Sons, Inc., 486 F.3d 1034,

1043 (8th Cir. 2007) (quotation, alteration, and citation omitted). Davis contendsthat

several other doctors atJRMC used profanity and made derogatory commentsin front

of hospital staff. In support, he cites to the results of a survey indicating that three

non-African-American physicians at JRMC, like Davis, behaved inappropriately

toward JRMC staff.

The record does not show that any physicians Davis identified provided poor

patient care or kept insufficient medical records. As the defendants point out, "[t]he

fact that [certain doctors] might have been accused of using profanity does not render

these physicians similarly situated with Davis." Davis also cites to his verified

complaint and affidavit, alleging that "[n]o white physician had . . . been subjected

to a 'zero tolerance' corrective action plan" or "random drug testing without cause."

While a verified complaint is equivalent to an affidavit for summary judgment

purposes, Hanks v. Prachar, 457 F.3d 774, 775 (8th Cir. 2006) (per curiam), neither

Davis's verified complaint nor his affidavit list any similarly situated, white

physicians at JRMC who were treated differently than Davis. Davis alleges in his

brief that Dr. Herzog, a white physician, received a temporary suspension

approximately 15 years ago that the defendants did not report to the National

Practitioner's Data Bank, even though they allegedly reported Davis's suspension.

There is no evidence of that in the record, nor is there evidence in the record

indicating that Herzog was similarly situated to Davis in all relevant aspects.

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Davis also argues that the district court erred by failing to consider 11

affidavits in which individuals testified that he was treated differently than similarly

situated white doctors. In fact, only six of the affidavits allege that "certain white

physicians" have behaved inappropriately toward medical staff and have not been

disciplined. Four affidavits simply state that "other physicians" have behaved

inappropriately and have not been disciplined. None of the affidavits include the

names of these "other physicians." Nor do the affidavits address patient care or

medical recordkeeping—the other two proffered reasons for revoking Davis's

privileges. Davistestified in his deposition that he could think of no other physicians

who were similarly situated to him.

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b. Conduct of JRMC Physicians

Davis also contendsin his brief that the conduct of two JRMC physicians—Dr.

Reid Pierce and Dr. Charles Mabry—is sufficient evidence from which the court can

infer discrimination. Davis cites that Pierce encouraged a JRMC employee to "make

a written statement [regarding a disturbing conversation she allegedly had with

Davis] and send it to [the Chief of Staff]." Davis also alleges that Pierce violated

confidentiality by showing a nurse's complaint against Davis to other physicians.

Finally, Davis contendsthat, after Pierce received a "third-party report of an offensive

sexual conversation between Davis and a nursing student" while Pierce was Chief of

Staff, he launched a quick investigation into whether Davis had sexually harassed the

student. The court cannot infer discrimination from these facts. Moreover, it is

undisputed that Pierce could not vote on the Credentials Committee and had no power

Davis cites statements from his coworkers indicating that he was a good 5

physician. These statements are not relevant to his discrimination or retaliation

claims. "It is not the role of this court to sit as a super-personnel department to second

guess the wisdom of a business's personnel decisions." Chambers v. Metro. Prop. &

Cas. Ins. Co., 351 F.3d 848, 858 (8th Cir. 2003) (quotation, alteration, and citation

omitted). The issue is not whether JRMC should have revoked Davis's privileges, but

whether its decision to do so was discriminatory or retaliatory in nature.

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to make official recommendations to the Committee. Thus, Davis has failed to show

how the revocation of his privileges, a decision made by the Credentials Committee

and affirmed by the hearing panel, review panel, and Board of Directors, was the

result of race discrimination.

Davis alleges that Mabry discriminated against him because of race. Mabry

filed a formal complaint against Davis for "slanderous comments made by Dr. Davis

in [the Invasive Procedures] committee [meeting]." As Medical Director of Quality

atJRMC, Mabry also developed a presentation for the Credentials Committee, which

indicated that Davis's patient care and medical recordkeeping were substandard and

that Davis overused "invasive cardiac procedures, as opposed to more traditional

diagnostic and therapeutic measures." The filing of a complaint is not discriminatory

of itself. See Soto v. Mineta, No. 04-70966, 2008 WL 4427788, at *27 (E.D. Mich.

Sept. 30, 2008) ("[T]he act of filing a complaint . . . is not discriminatory harassment

. . . ."). Mabry's presentation to the Credentials Committee, without more, does not

support an inference of discrimination. Davis argues that Mabry's calculations were

erroneous, yet he cites no evidence in the record to support that conclusion other than

his own affidavit.

c. Hospital Policy Violations

Finally, Davis contends that JRMC failed to follow its own procedures with

regard to the complaints against Davis and the disciplinary actionstaken against him.

First, he contends that the hospital failed to inform him of a written complaint that

Registered Nurse Yeggy-Nail made against him in August 2004. It is undisputed,

however, that Davis knew of the complaint because he filed a written response to it.

He also contends that JRMC failed to use collegial intervention to resolve the issue

6

Although the record does not define "collegial intervention," the JRMC 6

Credentialing Policy states: "Nothing in this policy or the medical Staff bylaws shall

preclude collegial or informal efforts to address questions or concerns relating to an

individuals [sic] practice and conduct at the hospital." (Emphasis added.)

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raised in the complaint. The record showsthat then-Chief of Staff Dr. Reid Pierce and

Dr. Bob Gullett held a collegial intervention, or informal meeting, with Davis later

that month to discuss the incident.

Davis also contends that the corrective action plan was overly restrictive

because the language "you should be ashamed of yourself" could constitute a

violation of the plan, as could certain body language. Davis offers no support for this

assertion, nor does he cite language in the corrective action plan indicating that those

types of communication would constitute a violation. Davis also complains that the

plan required him to undergo anger management counseling and submit to random

drug testing. He cites no hospital policy that these requirements violate, nor does he

show that others were treated differently.

Davis argues, withoutsupport, that the Credentials Committee's vote wastaken

without notice or an opportunity to be heard. Evidence in the record indicates that

JRMC informed Davisin writing when the Committee launched its investigation and

invited Davis to address the Committee, which Davis did. Davis argues that the fact

that "the entire Credentials Committee would serve as the ad hoc investigative

committee" was contrary to the Credentials Policy, "which provides that an ad hoc

investigative committee could only consist of up to three (3) persons." The policy

actually states that the committee may investigate themselves, appoint an ad hoc

committee of three, or appoint another subcommittee.

Davisstated in his deposition that the hearing panel members and review panel

members did not discriminate against him. Davis also stated that thirteen of the

fourteenmembers ofJRMC's Board of Directors, who affirmed the decision to revoke

his privileges, did not discriminate against him.

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d. Conclusion

Davis has failed to provide any evidence giving rise to an inference that the

defendants racially discriminated against him. Thus, the district court did not err in

granting the defendants' motion for summary judgment on Davis's race discrimination

claims.7

2. Retaliation Claims

Davis also alleges that the defendants retaliated against him in violation of 42

U.S.C. § 1981 and ACRA. To establish a prima facie case of retaliation, the plaintiff

must show "that (1) [he] engaged in statutorily protected activity; (2) an adverse

employment action was taken against him . . . ; and (3) a causal connection exists

between the two events." Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142,

1146 (8th Cir. 2012) (quotation and citation omitted). "[I]f the plaintiff can establish

a prima facie retaliation case, the defendant[s] must provide a legitimate,

nondiscriminatory reason for [their] decision." Id. "If the defendant[s] do[ ] so, the

burden then shifts back to the plaintiff to show that the proffered reason was merely

a pretext for discrimination." Id.

The defendants respond that Davis did not engage in a protected activity.

Protected conduct is defined by federal law, which "prohibits a[] [defendant] from

discriminating against an employee who 'has opposed any practice' made unlawful by

Title VII, or 'made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding or hearing' under the statute." Hervey v. Cty. of

Koochiching, 527 F.3d 711, 722 (8th Cir. 2008) (quoting 42 U.S.C. § 2000e-3(a)).

Davis argues that he engaged in protected conduct on November 11, 2005, when he

"sent his concerns about Dr. Mabry's and Dr. Reid Pierce's bias and racial

Davis relies on the same factual allegations to support his argument that the

7

proffered reasons for revoking his privileges are pretext for discrimination. Although

we need not address the pretext argument, these facts would be insufficient to show

pretext for the reasons stated supra.

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discrimination to Tom Harbuck, Executive Vice President, Robert Atkinson, CEO,

Jefferson Hospital Association, and Bill Bledsoe, Cardiac Administrator, via a

Quality Concern." The only evidence he cites in support is his allegation in the

verified complaint. 

Even if the complaint were enough to indicate that Davis engaged in a

protected activity, he has not established a causal connection between his complaint

in 2005 to JRMC administrators and the ultimate revocation of his privileges in July

2007.

3. Conspiracy Claim

Davis argues that the district court erred in dismissing his civil rights

conspiracy claim pursuant to 42 U.S.C. § 1985(3). 

In order to prove the existence of a civil rights conspiracy under

§ 1985(3), the [plaintiff] must prove: (1) that the defendants did

"conspire," (2) "for the purpose of depriving, either directly or

indirectly, any person or class of persons of equal protection of the laws,

or equal privileges and immunities under the laws," (3) that one or more

of the conspirators did, or caused to be done, "any act in furtherance of

the object of the conspiracy," and (4) that another person was "injured

in his person or property or deprived of having and exercising any right

or privilege of a citizen of the United States." 42 U.S.C. § 1985(3).

Larson by Larson v. Miller,76 F.3d 1446, 1454 (8th Cir. 1996). "The 'purpose'

element of the conspiracy requires that the plaintiff prove a class-based invidiously

discriminatory animus."City of Omaha Emps. Betterment Ass'n v. City of Omaha, 883

F.2d 650, 652 (8th Cir. 1989) (quotation and citation omitted). "Moreover, the

plaintiff must allege with particularity and specifically demonstrate with material

facts that the defendants reached an agreement." Id. As indicated supra, Davis has

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failed to show any racial animus on the part of the defendants. As a result, his

§ 1985(3) claim fails as a matter of law.8

B. Request for Continuance

Davis contends that the district court erred by denying his request for

continuance. "We review for an abuse of discretion the district court'srefusal to allow

further discovery prior to ruling on a motion for summary judgment." Anuforo v.

Comm'r, 614 F.3d 799, 808 (8th Cir. 2010) (quotation and citation omitted). We

"uphold[] the [district court's] decision if the nonmoving party was not deprived of

a fair chance to respond to the summary judgment motion." Brown v. J.B. Hunt

Transp. Servs., Inc., 586 F.3d 1079, 1084 (8th Cir. 2009) (quotation and citation

omitted). "Under Rule 56(f), a party opposing summary judgment may seek a

continuance and postpone a summary judgment decision, but the party opposing

summary judgment isrequired to file an affidavit with the district court showing what

specific facts further discovery might uncover." Anuforo, 614 F.3d at 808 (quotations

and citation omitted). 

The district court held a motions hearing in July 2010 to resolve certain

discovery disputes. At that hearing, Davis sought to compel certain peer review and

credentialing information. The district court granted Davis's motions in part. Davis

filed his motion for continuance in September 2010. At that time, Davis's counsel

argued that Davis needed the data supporting the mortality tables that the defendants

used and relied upon to revoke Davis's privileges—data that Davis did not seek in the

prior motions to compel. Davis argued that there was insufficient time to review the

volume of data uncovered before the scheduled November 2010 court date.

Reviewing the record as a whole, we cannot say that the district court abused its

discretion by denying the motion for continuance.

Davis's counsel acknowledged at the summary judgment hearing that "if we 8

lose on the race claim, the rest of the claims go away." 

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III. Conclusion

For the foregoing reasons, we affirm the decision of the district court.

______________________________

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