Prem Bhama v. Mercy Memorial Hospital Corp

416 F. App'x 542
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 25, 2011
Docket09-2193
StatusUnpublished
Cited by11 cases

This text of 416 F. App'x 542 (Prem Bhama v. Mercy Memorial Hospital Corp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prem Bhama v. Mercy Memorial Hospital Corp, 416 F. App'x 542 (6th Cir. 2011).

Opinions

ROGERS, Circuit Judge.

Defendant Mercy Memorial Hospital declined to promote plaintiff Prem Bhama, an older male of Indian national origin, in favor of a younger, female, Caucasian applicant. Mercy later terminated Bhama for allegedly engaging in unsanitary work practices and inappropriate patient care. Bhama claims that Mercy’s actions constituted discrimination on the basis of race, color, sex, national origin, and age, as well as unlawful retaliation, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Because Bhama cannot establish that Mercy’s stated reasons for denying him promotions and for terminating him were pretext for unlawful retaliation, and for the alternative reason that Bhama has forfeited his new arguments on appeal, the district court correctly granted Mercy’s motion for summary judgment and dismissed all Bhama’s claims.

Bhama began working for Mercy on February 25, 2004 as a Nuclear Medicine Technologist in Mercy’s Imaging Department. Bhama is a sixty-eight-year-old male of South Asian Indian descent. Bhama has bachelor’s degrees in mechanical engineering and pre-medical science, has a medical degree, and is certified in nuclear medicine technology. Bhama’s supervisor was Sridhar Iyengar, another male of Indi[544]*544an descent. Bhama worked in this position until September 30, 2008, when Mercy terminated him.

Mercy issued Bhama annual performance evaluations. According to Mercy’s performance rating scale, a one rating means “meeting standards” and a two rating means “exceeds standards.” On his first evaluation, dated June 28, 2004, Bhama received an overall rating of 2.03, as well as positive comments, such as the following: “[Bhama] is a very conscientious employee and I am impressed with his work ethic. The radiologists value his comments. Patients like his cheerful attitude and bedside manner,” and “I have personally observed [Bhama] with patients and co-workers and can mirror [Iyengar’s] comments on his compassion, professionalism and excellent bedside manner.”

On January 28, 2005, Bhama received a written warning for his “[fjailure to follow Departmental Protocol associated with the inappropriate mixing/diluting of Cholotec Kit radioisotope.” On his second annual evaluation, dated March 28, 2005, Bhama received a lower overall rating of 1.83. Comments were mixed, including: “[Established protocols must be followed even though changes may not be detrimental to the study. Must follow manufacturer’s/Department guidelines,” “Bedside manner commendable,” “[A]pparel is sometimes out of dress code,” and “Prem must strive to improve and increase communications with his fellow techs, increase dialogue and overall interactions so his actions are not misconstrued. Create and [sic] atmosphere where people can approach him more freely to avoid being misunderstood.” The communication comment referred to a co-worker who filed an EEOC complaint against Bhama. Bhama says he was exonerated of these charges and that this particular co-worker had a history of being abrasive, unapproachable, and difficult to work with.

Mercy began reorganizing in late 2005 by combining its Cardio Pulmonary Department with Bhama’s Imaging Services Department. This involved hiring Cynthia Miller as Manager of Respiratory Care in January 2006. Miller was promoted twice, first to Manager of Cardio Pulmonary Services and then to Director of Cardio Pulmonary and Imaging Services. In early 2007, Miller reorganized the Imaging Services Department by splitting it into two groups — Special Imaging and Diagnostic Imaging. Accordingly, Miller created two new positions — Lead Nuclear Technologist and Special Imaging Manager. These positions required, among other things, a “good working knowledge of leadership and motivation techniques” and “excellent communication skills.” The Lead Nuclear Technologist position also required a “good work record including attendance.”

Bhama’s third evaluation, dated February 27, 2006, rated him at 1.86. Comments were again mixed, including the same established-protocols, dress-code, and bedside-manner comments as before, “however, not all patients appreciate his comments and joking manner. He needs to use his judgment when interacting with patients as to whether or not they are going to be receptive to his comments and comments about a patient breaking the floor (should they fall) are NOT appropriate and should be totally avoided.” The evaluation also noted that “Prem is a very conscientious employee and an asset to the Nuclear Medicine Department,” and that he “needs to continue to keep the lines of communication open between himself and his supervisor and co-workers to avoid any potential misunderstandings or concerns as to what has been done or needs to be done.”

[545]*545Bhama claims that Miller later made two “third-world country” comments derogatory of his national origin. First, Miller reprimanded Bhama for using a broken IV stand affixed with a coat hanger to hold a patient’s IV, stating that “respiratory therapy can do better than this and we have a 64-slice camera and it’s not a Third World country.” Second, at a department-wide meeting which Bhama did not attend, Miller commented on the difference between Mercy’s new lobby and its old facilities, comparing the old facilities to a third-world country.

On February 28, 2007, Bhama received his fourth annual evaluation, which rated him still lower, at 1.06. Comments were generally positive though, such as, “Prem’s rapport with patients is commendable. He has received care stars and appreciative letters from patients regarding his care,” and “Very respectful of patients. Always addresses them as sir/madam.” However, it was again noted that Bhama “needs to keep the lines of communication open between himself and coworkers to avoid potential misunderstandings,” and to “[m]ake sure shirts and lab jackets are clean and neat.” Bhama contends that Miller directed Iyengar to give Bhama lower marks on this evaluation. In his deposition, though, Iyengar testified that department practice both before and after Miller’s hiring was for his supervisor to review his evaluations of employees such as Bhama and to then make changes to the evaluations if considered necessary.

Bhama interviewed for the Lead Nuclear Technologist and Special Imaging Manager positions on March 21, 2007. The interview panel consisted of Miller, a fifty-one-year-old white female, Dianna Red-man, a forty-three-year-old white female, and Michael Vallejo, a twenty-eight-year-old Hispanic male. Bhama alleges that Vallejo asked Bhama how long he planned to work, and that Vallejo starred in his interview notes Bhama’s response that he planned to work another five years. Miller testified that Vallejo only asked questions from a prepared interview form, while Miller and Redman supplemented Vallejo’s questions with unscripted technical questions; this interview form does not include a question about the length of time Bhama planned to work. Miller said that in her opinion, such a question would be illegal.

Following his interview, Bhama was rejected for both positions. Miller testified that while Bhama had qualifications for the positions, she was concerned that he had an inability to change and that he would not work well with her management style.

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416 F. App'x 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prem-bhama-v-mercy-memorial-hospital-corp-ca6-2011.