Luca Cicalese v. Univ of Texas Medical Bran
Opinion
Luca Cicalese, M.D., and Cristiana Rastellini, M.D. ("Cicalese and Rastellini" or "Appellants"), appeal the dismissal of their Title VII national origin discrimination claims against the University of Texas Medical Branch at Galveston ("UTMB"). We affirm in part and vacate and remand in part.
I.
Cicalese and Rastellini, a married couple, were born in Italy. They moved to the United States and both began working for UTMB in 2007. Cicalese worked as a tenured professor and director of UTMB's Transplant and Organ Failure Center. Rastellini accepted a tenure-track faculty position and directed UTMB's Transplant and Cellular Transplantation research. When they arrived in the United States, neither was licensed to practice medicine in Texas. But UTMB granted them faculty medical licenses and offered to renew those licenses indefinitely. All went well for several years: Cicalese was appointed UTMB's director of Hepatobiliary Surgery and created a Ph.D. program for international students in 2012; Rastellini opened a new clinical islet transplant program.
But, according to the allegations in the First Amended Complaint, the couple began having problems after Dr. Danny Jacobs joined UTMB as Dean in late 2012. Soon after being hired, Jacobs said to the couple, "What are you doing here? You should go back to Italy." Jacobs altered *765 job performance evaluation criteria so that Rastellini could not achieve positive evaluations without obtaining funding from the National Institutes of Health. As a result, Rastellini received negative evaluations and was moved to an "inadequate" laboratory to make room for another researcher. Jacobs also refused to publicize an "Order of Merit" presented to Rastellini from the President of Italy. Cicalese fared no better under Jacobs's leadership. Jacobs suspended UTMB's liver transplant program, removed Cicalese from his position as director of the Transplant and Organ Failure Center, and investigated Cicalese's handling of liver cancer surgeries. Cicalese believes this investigation was a "sham" meant to discredit him.
The couple's problems intensified in late 2014 when Jacobs hired Dr. Douglas Tyler as chairman of surgery. Tyler, when speaking of the Italian Ph.D. students in Cicalese's program, said he did not care about "these Italians." And, perhaps more than once, Tyler referred to "stupidity" and failure to "understand[ ] a situation" as an "Italian thing." Tyler excluded Rastellini from departmental activities and made demeaning comments about her work. Rastellini was forced to cease her own research and "work for another, less-experienced" researcher. She was demoted to "a part-time, non-tenure track position at a significantly lower pay rate." Tyler also reduced Cicalese's salary, restricted his work, refused to provide him favorable references, and demeaned him and his work. Cicalese's director titles were "reassigned to American Doctors who are less qualified than Dr. Cicalese." In addition, Tyler instated a new policy rescinding all permanent faculty licensure waivers. According to Appellants, this was meant to target them as the "[o]nly two physicians" at UTMB who benefited from the permanent waiver, and they were both Italians.
The couple sued UTMB, alleging that "[d]irect and/or circumstantial evidence exists showing that [UTMB] intended to discriminate against [them] because of their national origin, in violation of Title VII." UTMB moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted UTMB's motion, concluding the couple had failed to state a plausible national origin discrimination claim or a hostile work environment claim under Title VII. Cicalese and Rastellini appeal, arguing the district court erred by holding they failed to state a claim for national origin discrimination. 1
II.
We review
de novo
a district court's dismissal under Rule 12(b)(6).
Equal Access for El Paso, Inc. v. Hawkins
,
*766
Twombly
,
III.
On appeal, Appellants contend the district court erred by holding them to a heightened pleading standard when dismissing their national origin disparate-treatment claims.
2
"Disparate-treatment discrimination addresses employment actions that treat an employee worse than others based on the employee's race, color, religion, sex, or national origin. In such disparate-treatment cases, proof and finding of discriminatory motive is required."
Pacheco v. Mineta
,
In Appellants' view, the district court confused the plausibility pleading standard of
Twombly
/
Iqbal
with the evidentiary standard of
McDonnell Douglas
. Under the
Twombly
/
Iqbal
pleading standard, a complaint must "state a claim to relief that is plausible on its face.'"
Twombly
,
Appellants are right, as the district court acknowledged, that the Supreme Court has distinguished the
McDonnell Douglas
evidentiary standard from pleading requirements.
See
Swierkiewicz v. Sorema N.A.
,
Thus, our task is to identify the ultimate elements of a disparate treatment
*767
claim and then determine whether the district court erred by requiring Appellants to plead something beyond those elements to survive a motion to dismiss. As we have stated, there are two ultimate elements a plaintiff must plead to support a disparate treatment claim under Title VII: (1) an "adverse employment action," (2) taken against a plaintiff "
because of
her protected status."
See
Raj
,
We reiterate, however, that a court errs by requiring a plaintiff to plead something more than the "ultimate elements" of a claim.
The district court found Appellants did not allege facts plausibly showing any adverse actions taken
because of
their national origin. The court reasoned Appellants did not allege with adequate specificity that any "similarly situated" non-Italian employee was treated differently, and it therefore concluded they failed to plausibly allege circumstantial evidence of discriminatory motive. Specifically, the court faulted the live complaint because it failed to sufficiently allege how Appellants' co-workers "were treated differently under
nearly identical
circumstances." (emphasis added). The court also reasoned that Jacobs's and Tyler's derogatory statements about Italians were mere "stray remarks" and so could not plausibly constitute direct evidence of discriminatory motive.
Cf., e.g.,
Raj
,
We disagree with the district court's analysis. While a close call, we conclude that Cicalese and Rastellini-in claiming UTMB's various actions against them were motivated by anti-Italian bias-alleged sufficient facts to "nudge[ ] their claims across the line from conceivable to plausible."
Twombly
,
Accordingly, we vacate the district court's dismissal of Appellants' disparate treatment claims and remand for further proceedings. 3
IV.
We AFFIRM the district court's judgment concerning Appellants' Title VII disparate impact and hostile work environment claims. We VACATE the district court's judgment dismissing Appellants' Title VII disparate treatment claim and REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Appellants have failed to contest on appeal the dismissal of their hostile work environment claims. Any error as to those claims is therefore waived.
See
Valle v. City of Houston
,
The district court also concluded that "Cicalese and Rastellini have not pled a disparate-impact theory in their complaint." Appellants seem to contest that conclusion on appeal, but their entire argument on that score is the following: "Because the only physicians affected [by the Faculty Temporary License Extensions policy] were Italian, Dr. Cicalese's claim would be in the nature of both a disparate treatment
and a disparate impact claim
, contrary to the Court's holding." (emphasis added). Even assuming Appellants pleaded a disparate-impact claim in their live complaint, this "passing reference" is insufficient to prevent waiver on appeal.
Hollis v. Lynch
,
We need not consider UTMB's alternative argument that Appellants failed to exhaust their administrative remedies under Title VII. As UTMB acknowledges, the district court did not resolve this issue in light of its dismissal order. We therefore remand to the district court for consideration of that issue in the first instance.
Reference
- Full Case Name
- Luca CICALESE, Medical Doctor; Cristiana Rastellini, Medical Doctor, Plaintiffs-Appellants v. the UNIVERSITY OF TEXAS MEDICAL BRANCH, Defendant-Appellee
- Cited By
- 382 cases
- Status
- Published