     Case: 10-31209   Document: 00511678763   Page: 1   Date Filed: 11/29/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                             November 29, 2011

                                 No. 10-31209                    Lyle W. Cayce
                                                                      Clerk

MAYA BALAKRISHNAN, Medical Doctor,


                                          Plaintiff-Appellant

v.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE; LOUISIANA STATE
UNIVERSITY SCHOOL OF MEDICINE, NEW ORLEANS; WILLIAM
SCOTT GRIFFIES, Medical Doctor, named solely in his official capacity;
HOWARD OSOFSKY, Medical Doctor, named solely in his official capacity;
LARRY HOLLIER, Medical Doctor, named solely in his official capacity;
STEVE NELSON, Medical Doctor, named solely in his official capacity; ERIC
CONRAD, Medical Doctor, named solely in his official capacity; JOHN
LOMBARDI, Philosophiae Doctor, President of Louisiana State University
System, named solely in his official capacity; JAMES ROY, Chairman of the
Board of Supervisors of Louisiana State University and Agricultural and
Mechanical College,


                                          Defendants-Appellees




                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                            USDC No. 2:08-CV-4315


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
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                                       No. 10-31209

PER CURIAM:*
       A medical school graduate participating in the third and fourth year of a
residency at a medical center brought suit complaining of employment
discrimination and retaliation. Summary judgment was granted to the medical
center, from which the former resident appeals. We AFFIRM.
                    FACTUAL AND PROCEDURAL HISTORY
       The plaintiff, Maya Balakrishnan, graduated from medical college in India
and started her psychiatric residency at Tufts University. After two years, she
voluntarily left the program and continued her residency at Georgetown
University. After ten months at Georgetown, she was involuntarily terminated.
Balakrishnan started at LSU Medical Center in New Orleans in 2002 in order
to complete the final two years of her residency. During her second year in the
program – her fourth year of residency – LSU inquired whether Balakrishnan
had passed the United States Medical Licensing Step Three Exam (“Step 3
Exam”). Balakrishnan represented that she had taken and passed the exam.
She had actually failed the exam. At some point she also produced a falsified
score report to the director of the residency program.
       LSU’s progression committee determined that it could not certify
Balakrishnan’s completion of the residency program, specifically the required
professionalism competency, because she had lied to LSU about the Step 3
Exam. She also had failed to correct the misrepresentation when provided with
remedial opportunities.          The professionalism competency is one of six
competencies the Accreditation Council for Graduate Medical Education requires
schools determine candidates meet prior to certifying their completion of
residency programs.


       *
         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.

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                                  No. 10-31209
        In 2005, Balakrishnan filed an EEOC complaint alleging discrimination
on the basis of national origin and sex. She filed lawsuits in federal court and
Louisiana state court seeking relief under 42 U.S.C. §§ 1981 and 1983. In state
court she also sued for defamation. On Balakrishnan’s motion, the federal
lawsuit was dismissed without prejudice. The state court case is not part of this
record, but the district court noted that in 2008 the state court sustained LSU’s
exception as to Balakrishnan’s claims. In addition, the state court relied on a
lack of subject matter jurisdiction to dismiss Balakrishnan’s claims that were
analogous to the claims in this suit.
        In 2008, Balakrishnan filed another EEOC complaint alleging retaliation.
After the EEOC issued a right-to-sue letter, Balakrishnan filed a complaint in
the United States District Court for the Eastern District of Louisiana. The
defendants were the Board of Supervisors of Louisiana State University and
various other entities, and also certain individuals sued in their official
capacities (“LSU,” or the “defendants”).      In her first amended complaint,
Balakrishnan sought damages for retaliation and prospective injunctive relief
to compel LSU to certify her completion of the residency program. LSU filed a
motion for summary judgment, which the district court granted on October 5,
2010. Balakrishnan filed a Rule 59 motion seeking to amend her complaint to
add a cause of action under 42 U.S.C. § 1983. The district court denied this
motion on November 10. Balakrishnan timely appealed the grant of summary
judgment and denial of her Rule 59 motion.
                                 DISCUSSION
I.      Discrimination and Rule 59 Motion
        Balakrishnan alleges a number of facts that she contends raise a triable
issue for a jury. As to racial bias, she recites allegations about hostility to
foreigners. Balakrishnan points to the example of one of the defendants telling
a Chinese resident that she should chose a different medical practice area

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because of the language barrier when practicing in the communication heavy
field of psychiatry. Balakrishnan also points to disciplinary incidents with other
non-foreign residents. For example, one resident’s driving under the influence
did not cause LSU to fail to certify his completion of the program.
      LSU argues that the Section 1981 claim fails because that statute is not
applicable to claims against individuals acting under color of state law. Instead,
those claims must be brought under Section 1983. Even if that argument fails,
LSU suggests that her dishonesty about the Step 3 Exam is a nondiscriminatory
basis to deny certification of her program completion.
      The district court’s grant of summary judgment on these claims “is
reviewed de novo, applying the same standard as the district court.” Saenz v.
Harlingen Med. Ctr., L.P., 613 F.3d 576, 579 (5th Cir. 2010).
      Resolving whether Section 1981 is an available cause of action in this case
requires consideration of a Supreme Court holding “that Congress intended that
the explicit remedial provisions of § 1983 be controlling in the context of
damages actions brought against state actors alleging violation of the rights
declared in § 1981.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 731 (1989).
After that decision, Congress amended Section 1981. Oden v. Oktibbeha Cnty.,
Miss., 246 F.3d 458, 462-63 (5th Cir. 2001). We held that there was no basis to
conclude that the amendments overruled Jett. Id. at 463.
      Even so, Balakrishnan refers us to a footnote in our Oden opinion that in
some contexts, Section 1981 is “an independent cause of action against
individuals for discriminatory acts performed in their official capacities.” Id. at
464 n.5. For that point, we specifically identified the Section 1981 language that
all persons “shall be subject to like punishment, pains, [and] penalties,” a
provision which necessarily involves state actors. 42 U.SC. § 1981(a).
      Regardless of the proper reading of Jett, LSU presented a legitimate
nondiscriminatory reason for withholding her certification. LSU points to her

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misrepresentation about the Step 3 Exam and her failure to correct the lie when
confronted with it during therapy. In light of this nondiscriminatory purpose,
Balakrishnan must establish there remains a triable fact whether LSU’s
rationale was a pretext for a decision based on race. Culwell v. City of Fort
Worth, 468 F.3d 868, 873 (5th Cir. 2006).     Balakrishnan has not shown any
evidence that LSU’s nondiscriminatory reason was a pretext, any evidence upon
which a jury could reject LSU’s nondiscriminatory explanation, or any evidence
upon which a jury could rely in finding a race-based animus such as different
treatment for similarly situated employees. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149-50 (2000); Manning v. Chevron Chem. Co., 332
F.3d 874, 882 (5th Cir. 2003).
      In order to demonstrate that a co-worker was similarly situated, a plaintiff
must establish that employment actions taken regarding that employee were
taken in nearly identical circumstances. Smith v. Wal-Mart Stores (No. 471),
891 F.2d 1177, 1180 (5th Cir. 1990). “The employment actions being compared
will be deemed to have been taken under nearly identical circumstances when
the employees being compared held the same job or responsibilities, shared the
same supervisor or had their employment status determined by the same person,
and have essentially comparable violation histories.” Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 260 (5th Cir. 2009) (footnotes omitted). Balakrishnan claims
other residents with the same job and the same supervisors were treated
differently. What she fails to demonstrate is that there was any other resident
with a comparable violation. The only fellow resident she alleges received more
favorable treatment for a similar violation is an anonymous white male who had
a DUI. An isolated incident of criminal conduct is not comparable to material
misrepresentations about passing a benchmark exam in the profession. See
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001).



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         Balakrishnan also complains that the district court erred in refusing to
grant her Rule 59(e) motion in which she sought to amend her complaint to add
a Section 1983 claim. We generally review a district court’s decision on a Rule
59(e) motion for an abuse of discretion. Pioneer Natural Res. USA, Inc. v. Paper,
Allied Indus. & Energy Workers Int’l Union Local 4-487, 328 F.3d 818, 820 (5th
Cir. 2003). The district court did not abuse its discretion in concluding that
Balakrishnan was too late in seeking to amend her complaint to add a cause of
action under Section 1983. A Rule 59 motion “must clearly establish either a
manifest error of law or fact or must present newly discovered evidence. These
motions . . . cannot be used to argue a case under a new legal theory.” Ross v.
Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (quotation marks and citation
omitted). The district court properly denied her attempt to add a cause of action
after the entry of judgment in LSU’s favor. Templet v. HydroChem, Inc., 367
F.3d 473, 479 (5th Cir. 2004).
II.      Retaliation
         Balakrishnan argues that LSU retaliated against her based on her original
EEOC filing. Her personnel record was withheld and her credentials were not
properly reported to a national verification system. After the first request the
credentialing service sent to LSU, it reported that she had completed her first
and second years of residency at LSU instead of her third and fourth. LSU also
reported she was a resident, not the chief resident, an error that persisted even
once LSU corrected other errors. She says this prejudiced her because she was
chief resident and her representation of this to the credentialing service looked
like a misrepresentation in light of LSU’s failure to identify her that way.
         LSU responds that its policy was to not disclose personnel records without
a court order. Although Balakrishnan highlights one example of an individual
who received his personnel file without a court order, that individual was not a
resident but a certified doctor. LSU also argues that its withholding of the

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personnel file was based on an active discovery dispute and engaging in
litigation cannot constitute an adverse employment action.              As to the
credentialing paperwork, the defendant doctor filling out the form did not learn
of Balakrishnan’s EEOC complaint until after he filled out her paperwork.
      A claim for retaliation operates under the traditional burden-shifting
framework. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
A plaintiff alleging retaliation must establish a prima facie case that: “(1) he
participated in an activity protected by Title VII; (2) his employer took an
adverse employment action against him; and (3) a causal connection exists
between the protected activity and the adverse employment action.” Id. If a
plaintiff makes a prima facie case, a defendant employer can shift the burden
back to the plaintiff by articulating a nonretaliatory rationale for its action. Id.
at 557. A plaintiff then must rebut each rationale the employer provides. Id.
      Balakrishnan alleges that her EEOC filing was a protected activity, LSU’s
withholding of her personnel file and improper reporting were adverse, and
these adverse actions occurred after she engaged in the protected activity. LSU
shifted the burden back to Balakrishnan by providing nondiscriminatory
rationales. First, it would not disclose personnel files to residents without a
court order. Second, there could not be a causal link between the improper
reporting and Balakrishnan’s EEOC filing because undisputed evidence
establishes that the supervising doctor responsible for reporting did not learn of
the EEOC complaint until after he improperly filled out the paperwork.
      For employers’ actions to be retaliatory they “must be harmful to the point
that they could well dissuade a reasonable worker from making or supporting
a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006). Balakrishnan complains that without her file she could not
prove her completion of the residency program. It is not that she needed the file,
it is that she needed LSU to change what was in the file – namely certification

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of her completion – in order to sit for the psychiatry board exam. In the light of
this context, simply withholding the file was not objectively adverse to
Balakrishnan. See id. at 68-69. The adversity she faced was LSU’s refusal to
certify her completion, which was a determination made before she filed her
EEOC complaint. Thus, it could not be retaliatory. Watts v. Kroger Co., 170
F.3d 505, 512 (5th Cir. 1999).
      An employer cannot engage in a retaliatory action if at the time of the
alleged action it does not know about an employee’s protected conduct. Id. At
the time Balakrishnan’s supervisor initially filled out the national accreditation
paperwork, he did not know about her EEOC complaint. At the time he
corrected the paperwork, Balakrishnan’s supervisor was aware of the EEOC
complaint and that she was chief resident. Balakrishnan failed to produce any
evidence of a causal link between LSU’s reporting of the wrong title on a form
and her EEOC filing. She argues this improper paperwork handling causes her
application to the national accreditation body to appear as if it contains a
misrepresentation and this may harm her application. At best, Balakrishnan’s
assertion evidences LSU’s mishandling of paperwork. Balakrishnan cannot
defeat summary judgment on the speculation that the discrepancy caused by
LSU’s mishandling of the paperwork may harm her. Grimes v. Tex. Dep’t of
Mental Health and Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996).
      AFFIRMED.




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