15-1839 | Omnilex

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# UNPUBLISHED

## UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-1839

CIMENGA M. TSHIBAKA, M.D.,

Plaintiff - Appellant,
V.

JOHN SERNULKA, individually and in his official capacity as
CEO of Carroll Hospital Center, Inc .; CARROLL HOSPITAL
CENTER, INC .; JAIME ELLIOTT, individually,

Defendants - Appellees,
and

BOARD OF DIRECTORS OF CARROLL HOSPITAL CENTER, INC.,

Defendant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-02760-JFM)

Argued: September 20, 2016
Decided: December 13, 2016

Before GREGORY, Chief Judge, and KING and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

ARGUED: Conrad W. Varner, VARNER & GOUNDRY, Frederick,
Maryland, for Appellant. Robin Locke Nagele, POST & SCHELL,
P.C., Philadelphia, Pennsylvania, for Appellees. ON BRIEF:

Sheila A. Haren, Elizabeth M. Hein, POST & SCHELL, P.C.,
Philadelphia, Pennsylvania, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Cimenga M. Tshibaka, a Maryland physician, appeals from the
district court's rulings that dispensed with a civil suit
concerning the termination of his hospital privileges.
Tshibaka, who had privileges at Carroll Hospital Center, Inc.
("CHC"), in Westminster, Maryland, was accused of sexual
harassment by a patient care technician. After CHC terminated
Tshibaka's privileges, he initiated litigation in state court
against the patient care technician, CHC, and its CEO. The
complaint alleged a race discrimination claim under 42 U.S.C.
§ 1981, plus various state law claims. The defendants removed
the matter to the District of Maryland, where the court
dismissed the patient care technician and awarded summary
judgment to CHC and its CEO. Tshibaka has appealed, and as
explained below, we affirm in part, vacate in part, and remand.

I.
1.

Dr. Tshibaka, who is African-American, is a native of the
Democratic Republic of the Congo and a naturalized citizen of

Tshibaka thereafter completed a residency
in
cardiothoracic surgery at the University of Illinois.

In 2005, Tshibaka sought to join the medical staff at CHC.
During the credentialing process,

On April 11, 2006, CHC granted Tshibaka
unrestricted hospital privileges.

Tshibaka's tenure at CHC proceeded without incident until
October 2008,

1 Because we are assessing a summary judgment award, we
recount the facts in the light most favorable to Tshibaka. See
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) .

On March 15, 2010, Sernulka and Tshibaka executed an Early
Resolution Agreement. Pursuant thereto, Tshibaka agreed to
apologize to the nurse, undergo a mental health evaluation, and
begin treatment. The Early Resolution Agreement also contained
a last chance provision:

2 Citations herein to "J.A.
" refer to the contents of
the Joint Appendix filed by the parties in this appeal.

See J.A. 468. By the Early Resolution Agreement, Tshibaka
waived certain of his rights under CHC's Medical Staff Bylaws
(the "M.S. Bylaws") .

Shortly thereafter, pursuant to the Early Resolution
Agreement, CHC hired two experts - clinical sexologists Kate
Thomas and Chris Kraft - to evaluate Tshibaka. The expert
report concluded that Tshibaka was a safe medical practitioner
who posed no danger to the staff or patients at CHC. The report
found that, although Tshibaka did not have a sexual disorder,
his interpersonal skills were occasionally deficient. It
recommended that Tshibaka undergo monthly individual
psychotherapy sessions. By mutual agreement, those sessions
were conducted by Thomas. On March 28, 2011, Thomas advised CHC
that she was discharging Tshibaka as her patient because he had
completed the recommended therapy.

On June 24, 2013, defendant Jaime Elliott was working as a
patient care technician in CHC's Wound Care Center. Tshibaka
routinely worked at the Wound Care Center on Monday afternoons
and often interacted with Elliott.

For

his part, Tshibaka maintains that Elliott fabricated each of the
foregoing instances of
2.

On June 25, 2013, Elliott lodged an internal sexual
harassment complaint. CHC's Vice President of Human Resources,
Tracey Ellison, and Chief Compliance Officer, Joyce Romans,
promptly investigated Elliott's complaint pursuant to the
hospital's Medical Staff Conduct Policy (the "M.S. Conduct
Policy"). In their investigation, they interviewed Elliott, her
supervisors, and her co-workers. Romans and Ellison shared the
evidence with CEO Sernulka, who found Elliott's complaint to be
credible. Sernulka thus concluded that Tshibaka had violated
the last chance provision of the Early Resolution Agreement.
Later that day, Sernulka decided to terminate Tshibaka's
hospital privileges at CHC. To that end, he issued a

Determination of Probable Cause, which precipitated two
interrelated processes: (1) a summary suspension process; and
(2) a merits hearing. 3

Pursuant to the M.S. Bylaws, a summary suspension of a CHC
staff member is warranted when "the conduct or condition of the
Member presents an immediate threat of danger to any patient,
other practitioner, Hospital personnel or visitor." See M.S.
Bylaws $ 10.2.1.2.4 Conduct meriting a summary suspension
includes sexual harassment, which is defined in the M.S. Bylaws
as "[u]nwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature" when
"[s]uch conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile or offensive work environment."
Id.
$$ 10.3.1, 10.3.1.3. The summary suspension process begins when
the CEO determines, in relevant part, that there is probable

4 Our citations to the M.S. Bylaws refer to the Thirty-
Fourth Revision thereof, effective June 2013, which is the
version used by CHC during Tshibaka's suspension and merits
hearing. See J.A. 86-136.

cause to believe that sexual harassment occurred.
Id.
§ 10.3.2.1.

First, the CEO is empowered to impose a summary suspension.
See M.S. Bylaws § 10.3.2.1.1. If a summary suspension is
imposed, CHC's Medical Executive Committee (the "MEC") is
obliged to review the suspension within four days and recommend
that it be continued, modified, or terminated. Id. § 10.2.3.1.
The MEC notifies the suspended physician of its decision and his
right to review by the Board of Directors (the "Board"). Id.
$ 10.2.3.2.1. Finally, the suspended physician may submit a
written request for Board review within seven business days of
notification.
Id. $ 10.2.3.2.2. If requested, the Board
reviews the MEC's decision and decides whether it is justified.
Id. § 10.2.3.5.

In this situation, CEO Sernulka issued the Determination of
Probable Cause on June 25, 2013, relating therein that Tshibaka
had sexually harassed Elliott and violated the Early Resolution
Agreement. Sernulka also decided to summarily suspend Tshibaka
and promptly advised him of that decision. According to
Tshibaka, Sernulka stated that he was "not interested" in
hearing Tshibaka's side of the story and warned Tshibaka to get
a good attorney because he would never practice medicine again.
See J.A. 672.

On June 26, Sernulka notified the Medical Staff President
(the "M.S. President") of Tshibaka's summary suspension.
Sernulka advised Tshibaka that the MEC would review his
suspension within four days and that he would be promptly
informed of the MEC's decision. On June 27, the MEC voted to
continue Tshibaka's summary suspension. Sernulka notified
Tshibaka the following day of the MEC's decision and his right
to appeal to the Board.5 Tshibaka requested Board review, and on
July 2, the Board voted to continue his summary suspension.

Simultaneous with the summary suspension process, CEO
Sernulka also pursued the second process - a merits hearing -
seeking to terminate Tshibaka's hospital privileges. To obtain
a merits hearing, the CEO of CHC issues a probable cause
determination and provides written notice to the accused
physician, the M.S. President, and the Board. See M.S. Bylaws
$ 10.3.2. Within three days of receiving the CEO's written
notice, the M.S. President must appoint a three-member hearing
panel, designate a panelist as chairman, schedule the hearing,
and notify the accused physician of the hearing date. Id.
§ 10.3.3.

5 Sernulka was carrying a weapon when he hand-delivered the
MEC's decision to Tshibaka, who said that Sernulka exposed the
weapon in an effort to intimidate.

After conducting the merits hearing, the hearing panel
issues a written decision, which includes findings of fact and
recommendations with respect to disposition of the complaint and
disciplinary action. See M.S. Bylaws § 10.3.4. During the
evidentiary portion of the merits hearing, the panel cannot
consider any prior-adjudicated incidents of sexual harassment.
Id. § 10.3.4. The panel is entitled to consider such incidents,
however, in determining the appropriate disciplinary action.
Id. Following issuance of its written decision, the hearing
panel provides the accused physician, the M.S. President, the
CEO, and the Board with the decision and the record. Id.

Either party is entitled to pursue an appeal to the Board
within five days. See M.S. Bylaws $ 10.3.5. The Board hears
oral argument within seven days - ensuring that each party has
five days' advance notice - and accepts written arguments either
before or at oral argument. Id. The parties' contentions on
appeal must be based on the record made at the merits hearing
and on the hearing panel's decision and recommendation. Id.
Moreover, the Board cannot accept or consider any evidence that
was not before the hearing panel. Id. Within five days of oral
argument, the Board issues its final written decision on the
merits. Id.

On June 26, 2013, Sernulka notified the M.S. President that
Tshibaka was entitled to a merits hearing and asked him to

appoint a hearing panel. On June 27, Sernulka advised Tshibaka
that he was seeking termination of Tshibaka's hospital
privileges. Sernulka informed Tshibaka of his rights under the
M. S. Bylaws, and Tshibaka requested a merits hearing. On June
28, the M.S. President advised Tshibaka that he had appointed
the hearing panel, and that the hearing would be held on July 9.
The panel delegated its responsibility for objections and other
"lawyerly interactions" to the Medical Staff Attorney, Gertrude
Bartel.

Pursuant to M. S. Bylaws § 10.3.4, the hearing panel decided
to bifurcate its proceedings to consider the allegations of
sexual harassment separately from the issue of disciplinary
action. On July 9, the panel heard and evaluated the evidence
concerning Elliott's accusations of sexual harassment; as per
the Bylaws, it excluded all evidence of prior sexual harassment
allegations against Tshibaka. The panel concluded that CHC had
proven by a preponderance thereof that Tshibaka had engaged in
sexual harassment
On the other
hand, the panel ruled that CHC had not proven the incident
involving the allegation that Tshibaka

J.A. 230.

Six days later, on July 15, the hearing panel reconvened to
decide the appropriate disciplinary action. The panel again
excluded from consideration all prior sexual harassment
allegations against Tshibaka, ruling that they did not
constitute prior-adjudicated incidents under the M.S. Bylaws.
The panel concluded that a termination of Tshibaka's hospital
privileges was neither mandated by the Early Resolution
Agreement nor warranted. Instead, the panel agreed that
Tshibaka should be suspended until a psychiatrist determined
whether he was fit for duty. Both Tshibaka and CHC appealed the
panel's decision.

On July 26, the Board conducted an oral argument session.
Both CHC and Tshibaka had made written pre-argument submissions.
CHC urged the Board to determine that Tshibaka had sexually
harassed Elliott twice on June 24, and to terminate his hospital
privileges. For his part, Tshibaka contended that CHC had
conducted a biased investigation, that the hearing panel's
conclusions were illogical and contradictory, and that Sernulka
and Bartel had violated his due process rights. Tshibaka
requested an immediate reinstatement.

After concluding the oral argument session, the Board
deliberated and decided that Tshibaka had twice engaged in
sexual harassment,

The Board found Elliott to be
credible and declined to find Tshibaka credible. The Board thus
terminated Tshibaka's privileges to practice medicine at CHC.
B.

On August 9, 2013, Tshibaka filed this action against CHC,
Sernulka, and Elliott in the Circuit Court for Baltimore City,
Maryland. His state law claims included breach of contract,
defamation, tortious interference with prospective advantage,
and false light invasion of privacy. He also made a claim of
race discrimination under 42 U.S.C. § 1981.6 The defendants
removed the matter to the District of Maryland on September 19,
2013.
The district court possessed federal question
jurisdiction over Tshibaka's $ 1981 claim and supplemental
jurisdiction with respect to his state law claims. See 28
U.S.C. §§ 1331, 1367 (a) .

Tshibaka filed an amended complaint in federal court on
October 1, 2013, which Elliott promptly moved to dismiss for
failure to state a claim. On November 14, 2013, the district

6 Tshibaka initially alleged national origin discrimination
as part of his $ 1981 claim, but has since abandoned that
theory.

court dismissed the complaint as to Elliott, concluding that, as
a nonsupervisory co-worker who was not involved in the decision
to terminate Tshibaka's hospital privileges, Elliott cannot be
liable under § 1981. See Tshibaka v. Sernulka, No. 1:13-cv-
02670 (D. Md. Nov. 14, 2013), ECF No. 20-21. The court also
ruled that Elliott is entitled to immunity under Maryland law
with respect to the only state law claim - defamation - lodged
against her.

More than a year later, following the completion of
discovery, CHC and Sernulka (together, "the CHC defendants")
moved for summary judgment, and Tshibaka filed his own summary
judgment motion. On June 30, 2015, the district court denied
Tshibaka's request for summary judgment and awarded summary
judgment to the CHC defendants. See Tshibaka v. Sernulka, No.
1:13-cv-02760 (D. Md. June 30, 2015), ECF No. 89-90. The court
ruled that the $ 1981 claim failed because Tshibaka had not made
a prima facie showing that the CHC defendants terminated his
hospital privileges on the basis of racial animus. The court
also determined that the state law contract and tort claims
failed because the CHC defendants are entitled to immunity under
federal law, i.e., the Health Care Quality Improvement Act
("HCQIA"), see 42 U.S.C. § 11111 (a) . Tshibaka has timely noted
this appeal, and we possess jurisdiction pursuant to 28 U.S.C.
$ 1291.

II.

We review de novo a district court's award of summary
judgment, viewing the facts in the light most favorable to the
nonmoving party. See Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 276 (4th Cir. 2015) (en banc). Summary judgment is
inappropriate unless the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56 (a) .

We also review de novo a district court's dismissal of a
complaint, accepting as true all factual allegations therein and
drawing all reasonable inferences in favor of the non-moving
party. See Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002) .
In order to survive a Rule 12(b) (6) motion to dismiss, a
complaint must allege sufficient facts to state a facially
plausible claim. See Fed. R. Civ. P. 12 (b) (6) ; E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir.
2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) ) .

III.

On appeal, Tshibaka contends that the district court erred
in awarding summary judgment to the CHC defendants on his claim
under 42 U.S.C. § 1981, and in dismissing that claim as to
Elliott. He also maintains that the court erroneously

determined that HCQIA immunity bars liability of the CHC
defendants on his state law claims, and that the court further
erred in ruling that state law immunity bars Elliott's liability
on his defamation claim.

We first assess Tshibaka's § 1981 claim against the CHC
defendants and Elliott.
Section 1981 prohibits racial
discrimination in public and private contracts. See Guessous v.
Fairview Prop. Inv., LLC, 828 F.3d 208, 225 n.6 (4th Cir. 2016)
(citing Runyon v. Mccrary, 427 U.S. 160, 168-69 (1976) ). The
statute provides, in pertinent part, that

[a]ll persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts . . . as is
enjoyed by white citizens.

42 U.S.C. § 1981 (a). The term "make and enforce contracts"
includes "the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship." Id.
§ 1981 (b).

1\.

Tshibaka maintains that the district court erred in
awarding summary judgment to the CHC defendants on his $ 1981
claim for failure to establish a prima facie case, as required
under the framework set forth by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). According to
Tshibaka, he proved not only a prima facie case of race
discrimination against the CHC defendants, but also that their
explanation for terminating his hospital privileges is a mere
pretext. On the other hand, the CHC defendants contend that
Tshibaka failed to forecast sufficient evidence to prevail at
any stage of the McDonnell Douglas analysis. Our review of the
record convinces us that Tshibaka failed to make the necessary
prima facie showing.

It is settled that the McDonnell Douglas framework applies
to a $ 1981 claim. See Guessous, 828 F.3d at 216. An employee
is entitled to prove discrimination under McDonnell Douglas's
framework by establishing a prima facie case and demonstrating
that the employer's proffered nondiscriminatory reason for
taking an adverse employment action is pretextual. See Holland
v. Wash. Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) .

In the employee discipline context, a prima facie case
consists of the following factors:

(1) The employee is a member of the protected class;

(2) The employer took an adverse employment action
against the employee; and

(3) The employee engaged in prohibited conduct
similar to that of a person outside the protected
class and was subject to more severe disciplinary

measures than those enforced against the other
person.

See, e.g., Moore v. City of Charlotte, N.C., 754 F.2d 1100,
1105-06 (4th Cir. 1985) (applying McDonnell Douglas to Title VII
discriminatory discipline claim); see also Gairola v. Va. Dep't
of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985) (recognizing
that elements of prima facie Title VII claim and prima facie
§ 1981 claim are identical) .

If the employee makes a prima facie showing, the burden
shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. See
Holland, 487 F.3d at 214. The employer's burden is one of
production, not persuasion. Id. After the employer presents a
legitimate, nondiscriminatory reason for the adverse employment
action, the burden shifts to the employee to prove, by a
preponderance of the evidence, that the employer's proffered
reason for the action is merely a pretext for discrimination.
Id. The employee can establish pretext by "showing that the
employer's proffered explanation is unworthy of credence." Id.
(quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981) ).

The CHC defendants do not dispute that Tshibaka satisfies
the first two prongs of the prima facie test. As an African-

American, he is within the class protected by § 1981. See
Holland, 487 F.3d at 210, 214. CHC terminated his hospital
privileges, which certainly qualifies as an adverse employment
action. See Moore, 754 F.2d at 1105-06.7 It is on the final
prong of the applicable inquiry that Tshibaka falters. He
asserts that CHC had already permitted similarly situated
Caucasian physicians to remain on the medical staff after they
engaged in similar - or worse - conduct than Tshibaka allegedly
perpetrated. The Caucasian physicians Tshibaka presents as
comparators, however, are not similarly situated for purposes of
§ 1981, thereby dooming his claim.

It is axiomatic that "[t]he similarity between comparators
and the seriousness of their respective offenses must be clearly
established in order to be meaningful." Lightner v. City of
Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008). That
showing normally includes evidence "that the two employees dealt
with the same supervisor, were subject to the same standards,

7 The parties quibble somewhat over whether Tshibaka was
qualified for his position at CHC, which would be a factor under
the traditional prima facie test. See Holland, 487 F.3d at 214
(relating that, under traditional prima facie test, plaintiff
must show: (1) membership in protected class; (2) satisfactory
job performance; (3) adverse employment action; and (4)
different treatment from similarly situated individuals outside
of protected class) . Here, however, we need not decide whether
Tshibaka was qualified for his position. See Moore, 754 F.2d at
1005-06.

and had engaged in similar conduct without such differentiating
or mitigating circumstances that would distinguish their conduct
or the employer's treatment of them." Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000) (quoting Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) ), overruled on
other grounds by Ortiz v. Werner Enters., No. 15-2574, slip op.
at 5 (7th Cir. Aug. 19, 2016). As we have recognized, "[t]he
most important variables in the disciplinary context, and the
most likely sources of different but nondiscriminatory
treatment, are the nature of the offenses committed and the
nature of the punishments imposed." Moore, 754 F.2d at 1105.

Three of the comparator physicians identified by Tshibaka -
and
had allegedly
sexually harassed female employees of CHC. Senior Vice
President and Chief Medical Officer Smothers met with those
physicians and warned them to refrain from further harassment,
much as Smothers had admonished Tshibaka after the first
complaint at CHC surfaced against him in 2008. Unlike Tshibaka,
those physicians heeded Smothers's warnings; CHC is unaware of
any subsequent allegations of sexual harassment against them.
In other words, CHC did not treat those physicians more
leniently than Tshibaka because they did not engage in any
misconduct after receiving the first warnings. See Radue, 219
F.3d at 617-18 (observing that appropriate comparator must

engage in similar conduct without differentiating or mitigating
factors that would distinguish employer's treatment) .

A fourth physician,
allegedly

prior to working at CHC.

Because
alleged misconduct occurred before his tenure at
CHC - and had been investigated by the Maryland Board of
Physicians, rather than CHC -
is an inappropriate
comparator. See Radue, 219 F.3d at 617-18 (noting that proper
comparator deals with same supervisor, is subject to same
standards as plaintiff, and engages in similar conduct) .

is the
Of the physicians mentioned by Tshibaka,
best argument for a true comparator.
a Caucasian
physician, had allegedly sexually harassed
while he was employed by Carroll Hospital Group
("CHG"), a subsidiary of CHC.

CHG
and
made a letter of disciplinary action in January 2012,
which contained provisions similar to those in Tshibaka's Early
Resolution Agreement. To resolve the allegations,
agreed, by the letter, to cease and desist from all activities
that could be construed as sexual harassment, undergo a mental
health evaluation, attend treatment sessions, and abide by a
last chance agreement similar to Tshibaka's.

After CHG and
executed the letter of disciplinary
action, a patient reported that
had made her feel
uncomfortable. When the patient was interviewed, however, she
spoke highly of
and failed to confirm the complaint. CHG
therefore decided that the complaint was not credible and took
no disciplinary action. CHG later declined to renew
employment contract, but unlike Tshibaka, he yet has full
hospital privileges at CHC.

A significant difference precludes us from deeming
to be an appropriate comparator:
was not treated more
leniently than Tshibaka. Each entered into an agreement with a
last chance provision, and each was subject to a psychological
evaluation and counseling. Although a subsequent complaint
alleged that
the
complaint was unsubstantiated. CHG therefore concluded that
had not contravened his last chance agreement. Elliott's
complaint against Tshibaka, on the other hand, was substantiated
through several layers of review. Tshibaka has thus failed to
show that
is an appropriate comparator because
"differentiating circumstances" distinguish their conduct and
their employers' treatment of them. See Radue, 219 F.3d at 618.

In these circumstances, there is no genuine dispute of
material fact concerning the prima facie test. Because Tshibaka
has failed to forecast sufficient evidence to make a prima facie

showing, we are satisfied to affirm the summary judgment award
to the CHC defendants on the § 1981 claim.

2\.

Next, Tshibaka contends that the district court erred in
dismissing his $ 1981 claim as to Elliott on the ground that she
was a mere nonsupervisory co-worker who was not involved in the
decision to terminate Tshibaka's hospital privileges. As we
have recognized, there may be circumstances where § 1981
liability could be imposed on individuals. See, e.g., Tillman
v. Wheaton-Haven Recreation Ass'n, 517 F.2d 1141 (4th Cir.
1975) . We have not decided, however, whether a nonsupervisory
co-worker can be liable under $ 1981.

To revive his $ 1981 claim against Elliott, Tshibaka relies
on Smith v. Bray, where the Seventh Circuit concluded that a
subordinate employee with an unlawful motive may be individually
liable under $ 1981 for intentionally causing the employer to
take an adverse employment action against the subordinate's
fellow employee. See 681 F.3d 888, 896-99 (7th Cir. 2012),
overruled on other grounds by Ortiz v. Werner Enters., Inc., No.
15-2574, slip op. at 4 (7th Cir. Aug. 19, 2016). The Smith
court explained that such individual liability flows from the
"cat's paw" theory of employer liability, under which the
employer can be liable "when a biased subordinate who lacks
decision-making power uses the formal decision-maker as a dupe

in a deliberate scheme to trigger a discriminatory employment
action." Id. at 897 n.3 (internal quotation marks omitted) .

Tshibaka has alleged in his amended complaint that Elliott
"intentionally sought to revoke [his] hospital privileges on the
grounds of race, " and that the CHC defendants' proffered reason
for terminating his privileges was based on Elliott's false
allegations of sexual harassment. See Am. Compl. IT 65-66.
Arguably then, the operative complaint alleges under Smith a
colorable theory of Elliott's $ 1981 liability, as well as the
"cat's paw" theory of the CHC defendants' liability.

We will not decide here whether to adopt the reasoning of
Smith, however, because Tshibaka has foreclosed imposing § 1981
liability on Elliott by admitting - under oath - that he did
not believe Elliott made her internal sexual harassment
complaint on the basis of race. Specifically, Tshibaka was
asked during discovery, "So you don't believe that [Elliott]
herself was racially motivated in making her allegations; is
that right?" See J.A. 726. Tshibaka responded, "That's
correct." Id. Consistent with that testimony, Tshibaka failed
to pursue the "cat's paw" theory against the CHC defendants,
instead maintaining only that they had acted out of their own
racial animus. In these circumstances, we are constrained to
affirm the district court's judgment in favor of Elliott on the
$ 1981 claim. See MM v. Sch. Dist. of Greenville Cty., 303 F.3d

523, 536 (4th Cir. 2002) (recognizing our authority "to affirm
[a] judgment on alternate grounds, if such grounds are apparent

from the

record") ;

see

also

Boston

Prop.

Exch.

Transfer Co.

Iantosca,

720

F.3d

(1st

Cir.

2013)

(affirming

the

dismissal

claims

that

"would

inevitably

have

failed at

the

summary judgment stage") .

1\.

We turn to Tshibaka's state law contract and tort claims.
The district court awarded summary judgment to the CHC
defendants on the tort claims after determining that those
defendants are entitled to HCQIA immunity. The court separately
analyzed the merits of the breach of contract claim before
awarding summary judgment to the CHC defendants on that claim as
well. Because HCQIA immunity encompasses breach of contract
claims, however, a separate analysis of the contract claim was
unnecessary. That is, if the CHC defendants are entitled to
HCQIA immunity on the tort claims, they also get such immunity
on the contract claim. See, e.g., Wahi v. Charleston Area Med.
Ctr., Inc., 562 F.3d 599, 610-14 (4th Cir. 2009) (affirming
dismissal of contract and tort claims pursuant to HCQIA) . 8

8 Notably, HCQIA does not provide immunity to defendants in
civil rights lawsuits, including those under 42 U.S.C. § 1981.
See 42 U.S.C. § 11111 (a) (1) .

Congress enacted HCQIA in 1986, seeking to encourage good
faith professional review activities, and thereby reduce medical
malpractice and enhance the quality of medical care. See 42
U. S.C. § 11101. HCQIA immunizes the professional review actions
of professional review bodies from civil damages. Id.
§ 11111 (a). A "professional review action" is defined, in
relevant part, as

an action or recommendation of a professional review
body which is taken or made in the conduct of
professional review activity, which is based on the
competence or professional conduct of an individual
physician (which conduct affects or could adversely
affect the health or welfare of a patient or patients)
and which affects (or may affect) adversely the
clinical privileges, or membership in a professional
society, of the physician.

Id. § 11151 (9). "Professional review activities" are the
activities of a health care entity seeking to determine "whether
[an individual] physician may have clinical privileges with
respect to, or membership in, the entity." Id. § 11151 (10). A
professional review body is a health care entity - along with
the governing body or any committee of a health care entity -
that conducts professional review activities. Id. § 11151 (11) .

To obtain HCQIA immunity, a health care entity's
professional review action must fall within the breadth of the
statute, in that the action was taken or made:

(1) in the reasonable belief that the action was in
furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of
the matter,

(3) after adequate notice and hearing procedures
[were] afforded to the physician involved or
after such procedures as [were] fair to the
physician under the circumstances, and

(4) in the reasonable belief that the action was
warranted by the facts known after such
reasonable effort to obtain facts and after
meeting the requirement of [sub]paragraph (3) .

42 U.S.C. § 11112 (a) (1)-(4). Notably, the requirements of
subparagraph (a) (3) are couched in the disjunctive. That is, a
health care entity can obtain HCQIA immunity by acting either
"after adequate notice and hearing procedures [were] afforded to
the physician" or, in the alternative, "after such procedures as
[were] fair to the physician under the circumstances." Id.
§ 11112 (a) (3). Moreover, we have recognized that HCQIA provides
a safe harbor for professional review actions that is "but one
way a health care entity can comply with the requirements of
[subparagraph] (a) (3)." See Wahi, 562 F.3d at 607-08
(discussing safe harbor provisions of § 11112 (b) ). HCQIA does
not preclude a hospital from suspending or restricting a
physician's clinical privileges "subject to subsequent notice
and hearing or other adequate procedures," if a failure to take
such an action "may result in an immediate danger to the health
of any individual." See 42 U.S.C. § 11112 (c) (2) .

Importantly, a professional review action presumptively
qualifies for HCQIA immunity "unless the presumption is rebutted

by a preponderance of the evidence." See 42 U.S.C. § 11112 (a) .
Immunity applies unless viewing the totality of the
circumstances in an objectively reasonable manner - the
aggrieved physician rebuts the presumption that the professional
review action satisfied HCQIA. See Wahi, 562 F.3d at 610. At
the summary judgment stage, a court must assess

whether a reasonable jury, viewing all facts in a
light most favorable to [the physician], could
conclude that he had shown, by a preponderance of the
evidence, that [the professional review body's]
actions fell outside the scope of [the requirements
specified in § 11112 (a) (1) - (4) ] .

Id. at 607 (quoting Gabaldoni v. Wash. Cty. Hosp. Ass'n, 250
F.3d 255, 260 (4th Cir. 2001)) .

Here, the parties agree that the hearing panel and the
Board both qualify as professional review bodies and that the
termination of Tshibaka's hospital privileges was a professional
review action. Tshibaka contends, however, that the CHC
defendants failed to satisfy HCQIA in multiple ways:

(1) CEO Sernulka failed to properly investigate
Elliott's sexual harassment complaint and
determine whether Tshibaka constituted an
immediate threat of danger before suspending him;

(2)
Sernulka refused to listen to Tshibaka's side of
the story;

(3) Sernulka improperly prohibited Tshibaka from
appearing before the MEC to defend himself in the
summary suspension proceeding;

(4) Sernulka deliberately withheld the report of
clinical
sexologists
Thomas
and
Kraft,
and

instead presented to the MEC only Elliott's
statements and the Early Resolution Agreement;

(5)
Medical Staff Attorney Bartel improperly presided
over and bifurcated the merits hearing, and her
actions prevented Tshibaka from presenting
pertinent facts and argument concerning
Sernulka's conduct;

(6) Bartel improperly introduced into evidence the
last chance provision of the Early Resolution
Agreement but excluded the clinical sexologists'
report;

(7)
The CHC defendants failed to give Tshibaka a fair
hearing before the Board; and

(8) The Board erroneously decided that Elliott was
credible as to both incidents, although it did
not observe or hear her testimony.

Having carefully and fully assessed the record and the
written submissions of the parties to this appeal, together with
the argument of counsel, we discern no error in the district
court's application of HCQIA immunity. We are therefore content
to adopt the court's reasoning in that regard and affirm the
judgment in favor of the CHC defendants on the state law
contract and tort claims.

2\.

Finally, Tshibaka alleged one additional state law claim -
the defamation claim against Elliott - which the district court
dismissed by ruling that Elliott is entitled to immunity under
Maryland law. Specifically, the court concluded that Elliott is
entitled to the absolute immunity that Maryland common law
utilizes to protect witnesses in judicial or quasi-judicial

proceedings. See Gersh v. Ambrose, 434 A.2d 547, 550-52 (Md.
1981) . Our assessment of that question leads us to be somewhat
hesitant.

First, we are unable to identify any decision of a Maryland
appellate court that has extended absolute immunity to a witness
in a non-governmental administrative proceeding, such as a peer
review process at a health care facility. Second, Maryland has
enacted certain statutory provisions that grant a qualified or
conditional privilege for those involved in the medical review
process. See Md. Code, Health Occ. § 1-401 (a) (3) and (4) ; Md.
Code, Cts. & Jud. Proc. § 5-637 (b). We can only speculate on
whether Maryland intended for that statutory privilege to
abrogate common law absolute immunity - which may or may not
apply to Elliott - or whether the statutory privilege was meant
to complement common law immunity.

Put succinctly, the district court did not evaluate the
applicability of the statutory privilege to Tshibaka's
defamation claim against Elliott. It is therefore appropriate
for that court to first assess the statutory privilege and its
potential interplay with common law immunity. We will thus

vacate the dismissal of Tshibaka's defamation claim and remand
for further proceedings thereon. 9

IV.

Pursuant to the foregoing, we affirm the judgment against
Tshibaka on his 42 U.S.C. § 1981 claim, as well as on his
contract and tort claims against the CHC defendants. We vacate
the dismissal of the defamation claim against Elliott, however,
and remand for such other and further proceedings as may be
appropriate.

AFFIRMED

IN PART,

VACATED

IN PART,

AND

REMANDED

9 Further proceedings in the district court might include
certification to the Court of Appeals of Maryland, see Md. Code,
Cts. & Jud. Proc. $ 12-603, or remand to the state trial court,
see 28 U.S.C. § 1367; Hinson v. Norwest Fin. S.C., Inc., 239
F.3d 611, 616 (4th Cir. 2001) .

Cimenga M. Tshibaka, M.d. v. John Sernulka, individually

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