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




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51148                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 11, 2015
MOHD N. REFAEI,                                                            Lyle W. Cayce
                                                                                Clerk
              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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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


      1The DME’s immediate supervisor is the Deputy Commander of the hospital, while
the DME’s second-level supervisor is the hospital’s Commander.
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                                No. 14-51148
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.
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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
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                                    No. 14-51148
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.
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                                  No. 14-51148
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
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                                         No. 14-51148
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.”).
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                                   No. 14-51148
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.
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   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


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                                       No. 14-51148
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



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

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.
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                                 No. 14-51148
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


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                                    No. 14-51148
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.”).
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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.




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