IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51148

Summary Calendar

MOHD N. REFAEI, 

 Plaintiff - Appellant

v.

JOHN M. MCHUGH, Secretary of Department of the Army, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:13-CV-196

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Mohd N. Refaei brings various claims arising out of

his termination from a residency program at the William Beaumont Army 

Medical Center in El Paso, Texas. The district court dismissed Refaei’s state 

law claims and granted summary judgment in favor of the Government on his 

federal discrimination claims. For the following reasons, we AFFIRM in part, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2015

Lyle W. Cayce

Clerk

 Case: 14-51148 Document: 00513075723 Page: 1 Date Filed: 06/11/2015
2

VACATE in part, and REVERSE and REMAND in part the judgment of the 

district court.

I. Factual and Procedural Background

Plaintiff-Appellant Mohd N. Refaei, a practicing Muslim, was born in 

1965 in what is today the United Arab Emirates and became a naturalized 

United States citizen in 2001. Refaei obtained his medical degree in 2005 at 

the Belize Medical College. In 2008, Refaei was accepted into an internal 

medicine residency program with the Department of Veterans Affairs at the 

William Beaumont Army Medical Center (the “WBAMC”) in El Paso, Texas.

Each residency program at the WBAMC is headed by a Program 

Director, a specialist responsible for the day-to-day operations of the program. 

In addition, the WBAMC has a General Medical Education Committee (the 

“GMEC”), which supervises the various programs and Program Directors. The 

GMEC is comprised of representatives of the WBAMC’s residency programs 

and is chaired by the Director of Medical Education (the “DME”).1 Moreover, 

each residency program has its own education committee.

Disciplinary action against residents at the WBAMC may take various 

forms, three of which are relevant here. First, there is Program Level 

Remediation (“PLR”)—which typically lasts 60 days—during which program 

leadership provides additional resources to residents who are struggling in 

their residency program. If a resident’s deficiencies persist, the resident may 

be placed on probation. This is a formal method of discipline, with more 

structured guidelines and expectations for the resident’s improvement; 

generally, probation is given where it is believed that a resident is not 

academically prepared to be an independent practitioner. If the WBAMC 

 

1 The DME’s immediate supervisor is the Deputy Commander of the hospital, while 

the DME’s second-level supervisor is the hospital’s Commander.

 Case: 14-51148 Document: 00513075723 Page: 2 Date Filed: 06/11/2015
No. 14-51148

3

ultimately determines that a resident lacks necessary skills to perform as an 

independent practitioner, he or she may be terminated from the program and 

not allowed to graduate. A Program Director does not have the authority to 

take formal disciplinary action against a resident. Rather, a Program Director 

may make a recommendation of discipline—either PLR, probation, or 

termination—to the program’s education committee. With respect to PLR, if 

the education comm9ittee agrees that such remediation is needed, the resident 

is placed on PLR. With respect to formal discipline—probation or 

termination—if the education committee agrees that such action is 

appropriate, the recommendation is forwarded to the GMEC. The GMEC then 

conducts a hearing, during which both the Program Director and the resident 

(who may be represented by counsel) have the opportunity to present their 

cases. After the hearing, the GMEC casts anonymous ballots on whether to 

take formal disciplinary action. If the GMEC recommends probation, the 

resident is placed on probation. If the GMEC recommends termination, the 

recommendation is forwarded to the Deputy Commander. If the Deputy 

Commander agrees, the resident may appeal to the Commander. After 

considering the evidence, the Commander then makes a final decision 

regarding termination.

The WBAMC’s three-year internal medicine residency program consists 

of three levels: PGY-1, PGY-2, and PGY-3. A resident must successfully 

complete each level in order to complete the program. As a PGY-1 resident, 

Refaei struggled. After a recommendation of the Program Director at the time, 

Dr. Kent DeZee, the internal medicine education committee voted to place 

Refaei on PLR in September 2008. Because Refaei continued to have 

deficiencies in patient care, practice-based learning, and professionalism, Dr. 

DeZee recommended that Refaei be placed on probation in November 2008. 

 Case: 14-51148 Document: 00513075723 Page: 3 Date Filed: 06/11/2015
No. 14-51148

4

The internal medicine education committee concurred, as did the GMEC, and 

Refaei was placed on 90-day probation in December 2008. Refaei showed some 

improvement, completed his probationary period, and ultimately completed 

PGY-1. During Refaei’s second year, as a PGY-2 resident, Refaei was again 

placed on PLR for deficiencies in medical knowledge and professionalism; at 

this time, Dr. Michael Cole was the Program Director. Refaei ultimately made 

it to his PGY-3 year, during which he was again placed on probation on Dr. 

Cole’s recommendation. Refaei’s probation, beginning in July 2011, was 

triggered by, among other concerns, a report that Refaei gave a poor sign-out 

to the oncoming night resident and failed to check the progress of both of his 

interns’ work. On July 28, 2011, Refaei was given a notice of probation, which 

advised Refaei of the minimum acceptable standards required to be an 

independent physician, including: (1) “provide appropriate AND adequate 

documentation on all clinical notes including the documentation of your 

‘Assessment and Plan’ sections that is representative of a PGY[-]3 level 

resident;” (2) “[p]rovide appropriate AND adequate sign-out to your fellow 

residents;” and (3) “[d]emonstrat[e] that you are ready to take a leadership 

role . . . by accomplishing all of the above while teaching junior trainees.” 

Two days after receiving the notice of probation, Refaei engaged in 

conduct prompting his termination from the program. According to the 

recommendation for termination written by Dr. Cole, Refaei was the senior 

resident on duty when one of his patients went into severe distress, prompting 

intervention from the WBAMC’s Rapid Response Team. Refaei failed to 

transfer the patient to the intensive care unit, and failed to inform the 

attending physician of the significant change in his patient’s status. Moreover, 

Refaei failed to ensure that the incident was adequately documented in the 

patient’s record. The recommendation for termination noted that Refaei’s 

 Case: 14-51148 Document: 00513075723 Page: 4 Date Filed: 06/11/2015
No. 14-51148

5

conduct was in violation of the first and third conditions of probation discussed 

above. The internal medicine education committee voted unanimously to 

recommend Refaei’s termination, as did the GMEC (after a hearing at which 

Refaei was represented by counsel). The decision was affirmed both by the 

Deputy Commander and, after an appeal, by the Commander.

Refaei filed the present action on June 18, 2013.2 Refaei asserted claims 

for: (1) discrimination, under Title VII of the Civil Rights Act of 1964 and the 

Age Discrimination in Employment Act of 1967 (“ADEA”), on the basis of 

national origin (Emerati), religion (Muslim), and age (over 40); (2) breach of 

contract; (3) intentional infliction of emotional distress (“IIED”); and (4) 

defamation. The Government filed a motion to dismiss the latter three claims, 

in response to which Refaei abandoned his claims for IIED and defamation. 

The district court dismissed the breach of contract claim with prejudice, 

concluding that the claim was preempted under Title VII, the ADEA, and the 

Civil Service Reform Act. The Government moved for summary judgment on 

the remaining claims, and the district court granted the motion. Refaei timely 

appeals.

II. Standard of Review

We review de novo a district court’s order granting a defendant’s motion 

for summary judgment, applying the same standard as did the district court. 

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 163 (5th Cir. 2006). 

“Summary judgment is appropriate ‘if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.’” Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 

 

2 Refaei previously received an administrative decision from the Department of the 

Army rejecting his claims of discrimination.

 Case: 14-51148 Document: 00513075723 Page: 5 Date Filed: 06/11/2015
No. 14-51148

6

555, 561 (5th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). We view the evidence 

in the light most favorable to the non-moving party. United Fire & Cas. Co. v. 

Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006).

“We review questions of subject matter jurisdiction de novo.” Bissonnet 

Invs. LLC v. Quinlan (In re Bissonnet Invs. LLC), 320 F.3d 520, 522 (5th Cir. 

2003).

III. Discussion

A. Discrimination Claims

Refaei contends that he was terminated on the basis of his age, his 

religion, and his national origin. Because Refaei seeks to prove these claims 

through circumstantial evidence, we review the district court’s grant of 

summary judgment under the burden-shifting framework delineated in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Squyres 

v. Heico Cos., LLC, 782 F.3d 224, 231 (5th Cir. 2015) (applying the McDonnell 

Douglas framework to ADEA claims). “Under that framework, the plaintiff 

must first establish a prima facie case of discrimination, which requires a 

showing that the plaintiff (1) is a member of a protected group; (2) was qualified 

for the position at issue; (3) was discharged or suffered some adverse 

employment action by the employer; and (4) was replaced by someone outside 

his protected group or was treated less favorably than other similarly situated 

employees outside the protected group.” McCoy v. City of Shreveport, 492 F.3d 

551, 556 (5th Cir. 2007) (per curiam). “If the plaintiff makes a prima facie 

showing, the burden then shifts to the employer to articulate a legitimate, 

nondiscriminatory . . . reason for its employment action.” Id. at 557. “[I]f the 

employer meets its burden of production, the plaintiff then bears the ultimate 

burden of proving that the employer’s proffered reason is not true but instead 

is a pretext for the real discriminatory . . . purpose.” Id. We need not address 

 Case: 14-51148 Document: 00513075723 Page: 6 Date Filed: 06/11/2015
No. 14-51148

7

whether Refaei has sufficiently proven that the Government’s reason for his 

termination was pretextual, as we conclude that Refaei has failed to establish 

a prima facie case of discrimination.

In order to establish his prima facie case, Refaei was required to show 

that “he was treated less favorably because of his membership in that protected 

class than were other similarly situated employees who were not members of 

the protected class, under nearly identical circumstances.”3 Lee v. Kansas City 

S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). Making that showing requires 

that Refaei provide evidence of sufficient “comparators.” See id. Refaei has 

failed to do so. The only evidence of such comparators comes from Refaei’s own 

affidavit summarizing other residents’ “egregious mistakes,” for which they 

were not terminated. Even assuming such evidence meets the requirements 

of Federal Rule of Civil Procedure 56(c),4 it is nonetheless insufficient to fulfill 

this element of Refaei’s prima facie case. As an initial matter, because the 

affidavit fails even to identify the ages, national origins, or religions of these 

 

3 Although this is not an express element of the prima facie case under the ADEA, an 

ADEA plaintiff must nonetheless show that “he was either i) replaced by someone outside 

the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of 

his age.” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (internal quotation 

marks omitted). Here, Refaei has provided no evidence that he was replaced by someone 

younger or outside his protected class. In support of his prima facie case, Refaei relies

exclusively on evidence that other similarly situated residents were treated more favorably 

than he was. In order to show that he was otherwise discharged because of his age via such 

disparate treatment, Refaei was required to show that he was treated less favorably than

younger “similarly situated” employees in “nearly identical circumstances.” Berquist v. 

Wash. Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (internal quotation marks omitted); see 

Hinga v. MIC Grp., L.L.C., --- F. App’x ---, No. 14-20616, 2015 WL 2084021, at *3 (5th Cir. 

May 6, 2015) (unpublished). 4 Refaei’s affidavit does not state, or otherwise indicate, that it is based on his personal

knowledge, but rather appears to be based on hearsay. See Fed. R. Civ. P. 56(c)(4) (“An 

affidavit or declaration used to support or oppose a motion must be made on personal knowledge, 

set out facts that would be admissible in evidence, and show that the affiant or declarant is 

competent to testify on the matters stated.”).

 Case: 14-51148 Document: 00513075723 Page: 7 Date Filed: 06/11/2015
No. 14-51148

8

other residents, Refaei has failed to show that these employees “were not 

members of [Refaei’s] protected class[es].” Lee, 574 F.3d at 259; see also

Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485, 491–92 (5th Cir. 2010) 

(unpublished) (per curiam) (“The Summary Report does not include any 

information regarding the race or national origin of these supposed 

comparators. . . . Accordingly, appellants have failed to demonstrate a prima 

facie case of race or national origin discrimination as to all appellants.”). 

Refaei also fails to provide sufficient context with respect to these purported 

violations, such that we can determine whether these residents were indeed 

“similarly situated” to Refaei. For example, Refaei fails to identify the time 

frame of these other residents’ purported violations. See Lee, 574 F.3d at 259 

(“Employees . . . who were the subject of adverse employment actions too 

remote in time from that taken against the plaintiff generally will not be 

deemed similarly situated.”). Moreover, from the information Refaei has 

provided, it appears that none of these comparators was treated more favorably 

than Refaei “under nearly identical circumstances,” id. at 260, as none of the 

residents violated terms of their probation (nor does it appear that any were 

placed on probation multiple times), see id. (“The employment actions being 

compared will be deemed to have been taken under nearly identical 

circumstances when the employees being compared . . . have essentially 

comparable violation histories. And, critically, the plaintiff’s conduct that drew 

the adverse employment decision must have been ‘nearly identical’ to that of 

the proffered comparator who allegedly drew dissimilar employment 

decisions.” (footnote omitted)).

Accordingly, because Refaei has failed to establish this element of his 

prima facie case, the district court properly granted summary judgment in the 

Government’s favor.

 Case: 14-51148 Document: 00513075723 Page: 8 Date Filed: 06/11/2015
No. 14-51148

9

B. Hostile Work Environment Claims

Refaei also asserts hostile work environment claims under both Title VII 

and the ADEA. To prove such a claim under Title VII, a plaintiff must prove 

that he:

(1) belongs to a protected group; (2) was subjected to unwelcome 

harassment; (3) the harassment complained of was based on [the 

protected class]; (4) the harassment complained of affected a term, 

condition, or privilege of employment; (5) the employer knew or 

should have known of the harassment in question and failed to 

take prompt remedial action.

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting 

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)). “Harassment affects 

a term, condition, or privilege of employment if it is sufficiently severe or 

pervasive to alter the conditions of the victim’s employment and create an 

abusive working environment.” Id. (internal quotation marks omitted). 

Similarly, in order to prove a hostile work environment claim under the ADEA, 

a plaintiff must establish that “the employee was subjected to harassment, 

either through words or actions, based on age” and that “the nature of the 

harassment was such that it created an objectively intimidating, hostile, or 

offensive work environment.” Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 

(5th Cir. 2011).

Refaei fails to meet these standards. In support of his hostile work 

environment claims, Refaei cites to only two purportedly discriminatory 

comments made by Dr. Cole. First, Dr. Cole commented to Refaei that he 

should take Aricept, a medicine intended to slow the progression of memory 

loss. Second, on one occasion when Dr. Cole, Dr. Refaei, and other residents 

were watching an episode of Jeopardy that made mention of a Fifth Century 

Muslim physician, Dr. Cole stated: “Muslim Physician? That’s something 

 Case: 14-51148 Document: 00513075723 Page: 9 Date Filed: 06/11/2015
No. 14-51148

10

new.”5 Refaei also relies on several comments made by Dr. Cole that do not 

appear related to any protected class—e.g., that Refaei was a “bonehead,” a 

“liar,” and a “confabulator.” These occasional comments, though offensive, did

not create an environment so “permeated with discriminatory intimidation, 

ridicule, and insult, that [was] sufficiently pervasive to alter the conditions of 

[Refaei]’s employment.” Reed v. Neopost USA, Inc., 701 F.3d 434, 443 (5th Cir. 

2012) (internal quotation marks omitted); see id. (denying ADEA hostile work 

environment claim where “coworkers called [the plaintiff] names like ‘old man,’ 

‘old fart,’ ‘pops,’ and ‘grandpa’”); Faragher v. City of Boca Raton, 524 U.S. 775, 

788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents 

(unless extremely serious) will not amount to discriminatory changes in the 

terms and conditions of employment.” (internal quotation marks and citation 

omitted)); Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 330 (5th Cir. 2009) 

(“These occasional statements did not create a hostile work environment 

because they were not severe, physically threatening, or humiliating; at most, 

they were unwanted and offensive.”).

Accordingly, the district court properly granted summary judgment in 

the Government’s favor with respect to the hostile work environment claims.

C. Breach of Contract Claim

Finally, although Refaei does not challenge the district court’s dismissal 

of his breach of contract claim on the merits, he contends for the first time on 

appeal that the district court lacked subject matter jurisdiction over this claim. 

An issue of subject matter jurisdiction nonetheless “can never be forfeited or 

 

5 Dr. Cole stated in an affidavit that he likely made the first comment, but that “[w]hen 

persons have a difficult time remembering something, [he] often joke[s] that [he] can 

prescribe Aricept for them.” Dr. Cole stated that he has no recollection of making the second 

comment.

 Case: 14-51148 Document: 00513075723 Page: 10 Date Filed: 06/11/2015
No. 14-51148

11

waived,” “regardless of whether the error was raised in district court.” United 

States v. Cotton, 535 U.S. 625, 630 (2002); see also Arbaugh v. Y&H Corp., 546 

U.S. 500, 514 (2006) (“[C]ourts . . . have an independent obligation to determine 

whether subject-matter jurisdiction exists, even in the absence of a challenge 

from any party”).

Under the Tucker Act, the Court of Federal Claims has exclusive 

jurisdiction over claims sounding in breach of contract against the United 

States that exceed $10,000. See 28 U.S.C. § 1491(a)(1); 28 U.S.C. § 1346(a)(2); 

see also Humphries v. Various Fed. USINS Emps., 164 F.3d 936, 941 (5th Cir. 

1999) (“[T]he law of this circuit is clear that the Court of Claims has exclusive 

jurisdiction of a Tucker Act claim in excess of $10,000.” (internal quotation 

marks and brackets omitted)). “We have consistently refused to allow district 

courts to adjudicate issues which belong solely to the Court of Claims, even 

though some other statute conferring jurisdiction would otherwise allow the 

district court to hear the case.” Wilkerson v. United States, 67 F.3d 112, 118 

(5th Cir. 1995). Here, Refaei’s Complaint is silent as to the amount of damages 

he seeks in relation to his breach of contract claim, and that reason alone may 

preclude the district court’s jurisdiction. See Sheehan v. Army & Air Force 

Exch. Serv., 619 F.2d 1132, 1137 n.7 (5th Cir. 1980) (stating, in the Tucker Act 

context, that “a complaint is fatally defective unless it contains a proper 

allegation limiting the recovery sought,” though the court allowed the plaintiff 

to amend his complaint to cure the defect on appeal), rev’d on other grounds, 

456 U.S. 728 (1982); Enplanar, Inc. v. Marsh, 25 F.3d 1043, No. 93-7633, 1994 

WL 261088, at *2 (5th Cir. June 2, 1994) (unpublished) (per curiam) (affirming 

the district court’s dismissal for lack of subject matter jurisdiction under the 

Tucker Act because “the action seeks an unspecified amount of monetary 

 Case: 14-51148 Document: 00513075723 Page: 11 Date Filed: 06/11/2015
No. 14-51148

12

damages, thus rendering it fatally defective”).6 In any event, even considering

the allegations in the Complaint and the evidence submitted below, we 

conclude that Refaei seeks in excess of $10,000 for this claim. Although Refaei 

admits on appeal that he was owed only approximately $6,000 under his 

contract for the remainder of his term as a resident, he also seeks 

consequential damages relating to his loss in career advancement, as well as

“[c]osts, including reasonable expert fees,” “[a]ttorney’s fees,” and 

“[p]rejudgment and post-judgment interest.” Moreover, Refaei makes clear in 

his briefing on appeal that he is seeking at least $10,000 in relation to his 

breach of contract claim. Cf. Chichakli v. Szubin, 546 F.3d 315, 317 (5th Cir. 

2008) (concluding that, although “[i]t is not clear from the face of the Complaint 

that [the plaintiff] is seeking greater than $10,000 in damages,” the plaintiff’s 

allegations, “along with [the plaintiff]’s failure to dispute the Government’s 

allegation that his claim is in excess of $10,000, justify a finding that his claim 

is for more than $10,000”).

The Government argues that Refaei cannot now complain about the 

district court’s lack of jurisdiction over this claim, as he invoked the jurisdiction 

of the district court by filing his lawsuit. However, “[l]itigants cannot bestow 

subject matter jurisdiction on federal courts by waiver or consent.” Elam v. 

Kansas City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011). Accordingly, we 

VACATE the district court’s holding on preemption of the breach of contract 

claim, REVERSE the district court’s judgment as to that claim and REMAND 

to the district court with instructions that the claim be transferred to the Court 

 

6 Refaei’s Complaint does not expressly limit his requested damages to less than 

$10,000. Cf. Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir. 1981) (“In his amended 

complaint, Woodard waived all claims for damages in excess of $9,999.99. Therefore, the 

district court had jurisdiction of his monetary claims.”).

 Case: 14-51148 Document: 00513075723 Page: 12 Date Filed: 06/11/2015
No. 14-51148

13

of Federal Claims. See 28 U.S.C. § 1631 (“Whenever a . . . court finds that there 

is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer 

such action or appeal to any other such court in which the action or appeal 

could have been brought at the time it was filed or noticed . . . .”); see also

Amoco Prod. Co. v. Hodel, 815 F.2d 352, 368 (5th Cir. 1987).

IV. Conclusion

For the foregoing reasons, the judgment of the district court is 

AFFIRMED in part, VACATED and REVERSED in part, and REMANDED

with instructions to transfer the contract claim to the Court of Federal Claims. 

Costs shall be borne by Refaei.

 Case: 14-51148 Document: 00513075723 Page: 13 Date Filed: 06/11/2015