NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 28 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMMITT THOMPSON, MD, an individual, No. 19-15635

Plaintiff-Appellant, D.C. No. 2:17-cv-01607-ROS

v.

MEMORANDUM*

DIGNITY HEALTH, DBA Barrow Neurological Institute, a California corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted July 7, 2020 Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and BOULWARE, ** District Judge.

Appellant Dr. Emmitt Thompson brought a 42 U.S.C. § 1983 claim against

his former employer, Barrow Neurological Institute (“BNI” dba Dignity Health),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard F. Boulware II, United States District Judge for the District of Nevada, sitting by designation. alleging that the nonrenewal of his residency contract with BNI was due to race

discrimination. Dr. Thompson also brought breach of contract and defamation

claims. The district court granted summary judgment to BNI on all claims and

excluded the majority of Dr. Thompson’s expert witness testimony. We affirm the

district court’s decision with the exception of the defamation claim.

We have jurisdiction over orders granting motions for summary judgment

under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Weil v.

Citizens Telecom Servs. Co., 922 F.3d 993, 1001 (9th Cir. 2019). Summary

judgment may be granted when 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.

Fed. R. Civ. P. 56(a). We review a decision to exclude expert testimony for abuse

of discretion, even in the context of a motion for summary judgment. Kennedy v.

Collagen Corp., 161 F.3d 1226, 1227 (9th Cir. 1998).

We agree with the district court that Dr. Thompson failed to make out a

prima facie case for employment discrimination because he failed to establish that

he was performing his job to his employer’s satisfaction. See Weil, 922 F.3d at

1003–04 (holding that plaintiff must show “satisfactory” performance to establish

prima facie case of discrimination). Dr. Thompson’s various performance reviews

indicated that his performance was steadily declining, that he was placed on a

performance improvement plan but failed to improve satisfactorily, and that he had

2 19-15635 been warned that termination was a possible outcome if his performance failed to

improve. Dr. Thompson argues that he has met his burden because the requisite

level of proof to establish a prima facie Title VII case at summary judgment need

not rise to the level of preponderance of the evidence. Dr. Thompson, however,

presented essentially no evidence other than his own uncorroborated self-

assessment and inadmissible expert testimony to establish that he was meeting his

employer’s expectations and performing satisfactorily. We find based on the

instant record that Dr. Thompson failed to meet even the lower standard at the

summary judgement stage. Id. at 1003.

We also agree with the district court that Dr. Thompson failed to produce

evidence sufficient to establish that BNI’s legitimate, nondiscriminatory reason for

terminating Dr. Thompson’s residency was pretext for racial discrimination.

A Title VII plaintiff can demonstrate pretext either directly—by showing

that discrimination more likely motivated the employer—or indirectly, by showing

that the employer’s explanation is unworthy of credence. Vazquez v. County of Los

Angeles, 349 F.3d 634, 641 (9th Cir. 2003). Dr. Thompson does not meet either

threshold for establishing pretext. Dr. Thompson presents no evidence of bias 1

1 Dr. Thompson states both that he has a learning disability and that he is a United States veteran with a 10% disability rating for Major Depressive Disorder recurrent. Dr. Thompson also mentions his diagnosis of dyslexia in his deposition. But Dr. Thompson does not bring any claim under the Americans with Disabilities Act and does not allege discrimination based on either of these disabilities.

3 19-15635 other than conclusory, self-serving statements in his declaration and deposition that

he believed that two doctors were discriminating against him. He concedes that he

never heard the doctors make comments about his race or make racially insensitive

comments generally. Dr. Thompson describes being left out of certain social events

and not being given certain tasks to do as a resident but does not establish that any

of this occurred because of his race. He submits no evidence of similar treatment

given to other African-American residents or suggesting that his negative

performance assessments and evaluations were embellished. He also submits no

evidence of preferential treatment afforded non-African-American residents other

than his own self reports. Rather, the record establishes a year’s worth of

evaluations that indicate persistent underperformance.

Dr. Thompson also argues that a jury could infer pretext because Arizona

law requires doctors and health care institutions to report to the Arizona medical

board any information that appears to show that a doctor may be medically

incompetent, but BNI did not report Dr. Thompson to the Arizona medical board.

See Ariz. Rev. Stat. Ann. § 32-1451(A). We disagree with Dr. Thompson’s logic

here. The standard triggering BNI’s reporting obligation—that a doctor appears

“medically incompetent,” “guilty of unprofessional conduct,” or “mentally or

physically unable safely to engage in the practice of medicine,” id.—is high. BNI

reasonably could have decided to terminate Dr. Thompson for far less serious

4 19-15635 performance lapses. And in fact BNI recommended Dr. Thompson to another

residency program where he would be a better fit. For these reasons we agree that

Dr. Thompson failed to demonstrate that BNI’s reasons for terminating his

employment were pretext for racial discrimination.

We also agree that the district court did not abuse its discretion in rejecting

the majority of Dr. Thompson’s expert witness’s testimony on the grounds that the

expert, a neurologist, was not qualified to talk about graduate medical education

and her conclusions were mostly speculative.2 Dr. Shefrin’s expert report and

deposition testimony did not actually concern Dr. Shefrin’s expertise in neurology.

We have previously explained when assessing the admissibility of expert

testimony that “[e]xpert opinion testimony is relevant if the knowledge underlying

it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge

underlying it has a reliable basis in the knowledge and experience of the relevant

discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). Dr. Shefrin’s

testimony fails to meet this standard. Dr. Shefrin’s underlying knowledge and

training as a neurologist did not establish that she was qualified to give opinions

about graduate medical residency education, which makes Dr. Shefrin’s testimony

not relevant. Dr. Shefrin’s testimony was also not reliable because it was not based

2 The lower court deemed admissible the portion of the expert report that concerns whether Dr. Clark appropriately criticized Dr. Thompson for admitting a patient with Parkinson’s disease to the stroke service.

5 19-15635 on her knowledge and relevant discipline but was instead based almost entirely on

speculation of other physicians’ interactions with Dr. Thompson.

We also do not find that Dr. Thompson established a breach of contract

claim as the undisputed facts demonstrate that Dr. Thompson’s appeal was

untimely. We further find it inappropriate to consider Dr. Thompson’s bad faith

argument on this claim as it was not previously raised before the district court. See

Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).

We do, however, disagree with the district court that no reasonable juror

could find in favor of Dr. Thompson on his defamation claim. Under Arizona law,

a person is liable for defamation if he has knowledge that a statement is false and

acts in reckless disregard of such matters or acts negligently in failing to ascertain

such matters and nevertheless publishes the statement. Peagler v. Phx.

Newspapers, Inc., 560 P.2d 1216, 1222 (Ariz. 1977). A defamation claim does not

lie, however, if the statement at issue was substantially true. Read v. Phx.

Newspapers, Inc., 819 P.2d 939, 941 (Ariz. 1991) (“Slight inaccuracies will not

prevent a statement from being true in substance, as long as the ‘gist’ or ‘sting’ of

the publication is justified.”).

The statements at issue concern how Dr. Muley filled out the Certificate of

Completion of Postgraduate Training required by the Medical Board of California.

Dr. Muley indicated on the form that Dr. Thompson had been “terminated,

6 19-15635 dismissed or expelled,” “placed on probation,” “disciplined or placed under

investigation,” and that the program had declined “to renew” Dr. Thompson’s

postgraduate training program contract. Dr. Thompson argues that Dr. Muley’s

answers to the form were defamatory because Dr. Thompson was never on

probation and was never terminated or dismissed. BNI argued in response, and the

lower court agreed, that Dr. Muley’s statement taken in context was substantially

true. However, we find that there are reasonable differing interpretations as to

whether or not the distinction here between nonrenewal of a contract and

termination or dismissal constitutes a “slight inaccuracy” or is a substantive factual

misstatement. Read, 819 P.2d at 941. “In most instances, it is for the jury to

determine whether an ordinary reader or listener would believe the statement to be

a factual assertion, mere opinion or hyperbole.” Burns v. Davis, 993 P.2d 1119,

1129 (Ariz. Ct. App. 1999). Because the meaning of these terms may be subject to

different interpretations, it was inappropriate for the district court to resolve this

question on a summary judgment motion. See Sankovich v. Life Ins. Co. of N. Am.,

638 F.2d 136, 140 (9th Cir. 1981) (“Where there are undisputed facts from which

different ultimate inferences might reasonably be drawn and as to which

reasonable persons might differ, the case is not suitable for summary judgment.”).

We therefore reverse the district court’s grant of summary judgment as to the

defamation claim.

7 19-15635 AFFIRMED IN PART, REVERSED IN PART and REMANDED.

8 19-15635