Opinion
Cause No. IP00-0678-C-D/F
March 7, 2002
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants' University Transplant Associates, Inc. ("UTA"), Ronald S. Filo, M.D. ("Dr. Filo"), Stephen B. Leapman, M.D. ("Dr. Leapman"), Mark D. Pescovitz, M.D. ("Dr. Pescovitz"), and Martin Milgrom, M.D. ("Dr. Milgrom"), Motion for Summary Judgment on Plaintiff Dr. Rahul M. Jindal's ("Dr. Jindal") federal and state law claims. After UTA terminated his employment in December 1998, Dr. Jindal filed this lawsuit alleging claims under 42 U.S.C. § 1981 for race and national origin discrimination, hostile work environment, and retaliation. He also asserted claims under Indiana law for defamation and promissory estoppel. Defendants deny that they have acted unlawfully in any way, and move for summary judgment on all of Dr. Jindal's claims. The parties have fully-briefed Dr. Jindal's claims, and the motion is now ripe for ruling.
I. FACTUAL BACKGROUND
A. THE PARTIES
Dr. Jindal was born in New Delhi, India, and is Indian by race. Statement of Facts ¶ 1. He attended high school and medical school in India and completed a surgical residency in United Kingdom Hospitals, followed by a research fellowship at the University of Oxford. Id. ¶ 2. In the United States, Dr. Jindal received additional training in transplant surgery at the University of Boston and at Mt. Sinai Medical Center in New York. Id. ¶ 3.
UTA is an Indiana corporation with its principal place of business in Indianapolis, Indiana. Id. ¶ 4. The shareholders of UTA are its president, Dr. Filo; its secretary, Dr. Leapman; and non-office holders Dr. Pescovitz and Dr. Milgrom. Id. ¶ 5. Corporate shares are owned in the following proportions: Dr. Filo (30.3%); Dr. Leapman (30.3%); Dr. Pescovitz (21.2%); and Dr. Milgrom (18.2%). Id. ¶ 6. UTA is a medical practice devoted to the treatment and care of patients requiring liver, kidney, or pancreas transplantation. Id. ¶ 7. UTA is one of several surgical divisions under the umbrella of the Department of Surgery at the Indiana University Medical Center ("the IUMC") in Indianapolis, Indiana. Id. ¶ 8.
B. DR. JINDAL BEGINS LOOKING FOR EMPLOYMENT
In or around February 1993, Dr. Jindal contacted Dr. Filo regarding the possibility of obtaining a faculty-staff position in the Division of Organ Transplantation at the IUMC. Id. ¶ 9. Dr. Jindal informed Dr. Filo of his past experience and strong desire to pursue a research interest in the area of pancreatic islet isolation and transplantation and clinical hepatic transplantation. Id. ¶ 10. Dr. Filo believed Dr. Jindal's interest and expertise would be valuable assets to the IUMC Division of Organ Transplantation, and in mid-March 1993, he wrote a letter to Dr. Jindal and invited him to visit Indiana to look at the medical center and UTA's practice. Id. ¶ 11.
In late March 1993, Dr. Jindal came to the IUMC and was interviewed extensively by the doctors at UTA and by appropriate faculty and staff of the IUMC. Id. ¶ 12. Dr. Jindal was aware that to be hired by UTA he would also have to be hired separately by the IUMC. Id. ¶ 139. To be hired as an IUMC faculty member, Dr. Jindal was required to be a member of a departmental corporate group, i.e., UTA. Id. ¶ 140. Dr. Filo was in charge of hiring, including negotiating employment agreement terms. Id. ¶ 141.
Before any candidates were interviewed for employment in 1993, UTA had decided that any doctor hired by the practice would have to wait a minimum of five years before being considered for partnership. Id. ¶ 13. UTA determined to implement a five-year partnership waiting period after Drs. Filo and Leapman talked with other doctors in other medical practices to determine their partnership waiting periods. Id. ¶ 14. As far back as 1977, when Dr. Filo asked Dr. Leapman to join him as a transplant surgeon, the standard practice in other medical divisions within the IUMC was to offer partnership only after a 3- to 7-year trial period. Id. ¶ 15. During the interview process, Dr. Filo discussed with Dr. Jindal the dual nature of his appointment as an employee of Indiana University and UTA, his starting salary and other benefits, and the duties he would be expected to perform. Id. ¶ 16. The parties agree on certain terms that were offered to Dr. Jindal, including the following: (1) he would be a junior faculty member with the Indiana University School of Medicine; (2) he would be required to perform surgeries and be on call as assigned; (3) the combined UTA/IUMC salary was to be initially $100,000; and (4) that health, retirement/pension benefits would be provided by IUMC. Id. ¶ 148. Dr. Jindal denies that Dr. Filo told him during the interview process that he would have to work five years in the practice before being considered for partnership. Instead, he claims he was told that, subject to satisfactory progress, he would become a partner at the end of three years. Jindal Dep. at 27-28; Jindal Aff. ¶ 7. All of the UTA partners up to and including Dr. Milgrom had made partner by three years. Id. ¶ 150.
In approximately August 1993, UTA hired Dr. Jindal as a transplant surgeon. Id. ¶ 17. Around the same time, the IUMC hired Dr. Jindal as an assistant professor in the Department of Surgery. Id. ¶ 18. As an employee of UTA, Dr. Jindal was responsible for all aspects of the treatment and care of transplantation patients. Dr. Jindal was also expected to pursue a tenured academic track with Indiana University involving research, teaching responsibilities, and the publishing of research papers. Id. ¶ 20. Dr. Jindal understood that becoming a partner at UTA would not be automatic, but would be subject to a determination by the other UTA doctors that he had made satisfactory progress, that he fit in, and that he would be acceptable as a partner. Id. ¶ 21. Dr. Jindal does not recall what Dr. Filo told him about the term "satisfactory progress," but he assumed that the UTA doctors would be deciding whether or not he satisfactorily met their requirements. Id. ¶ 22.
During his second interview with UTA and again during his first week of employment with UTA, Dr. Jindal asked about a written contract. Id. ¶ 153. According to Dr. Jindal, Dr. Filo told him that he would receive a written contract and partnership agreement at the completion of three years of employment with UTA. Id. ¶ 154. Dr. Jindal does not recall what, if anything, Dr. Filo told him about the corporate structure of UTA, the ownership interest of the other partners, the nature of his potential ownership interest, or the issuance of stock. Id. ¶ 24. Dr. Jindal did not have a written employment contract with UTA, nor was Dr. Filo's promise to make him a partner after three years of employment contained in writing. Id. ¶ 25. Dr. Jindal did not know whether the decision to make him a partner would be voted on by all of the UTA doctors or by Dr. Filo alone. Id. ¶ 26. Dr. Jindal never received a written contract from UTA. Id. ¶ 157.
Before accepting UTA's offer of employment, Dr. Jindal had interviews with Baptist Memorial Hospital ("Baptist Memorial") in Oklahoma City; the University of Medicine and Dentistry ("UMD") in Newark, New Jersey; Boston University Medical Center; and Mt. Sinai Hospital in New York. Id. ¶ 32. Dr. Jindal received an offer from Baptist Memorial approximately six weeks before he received an offer of employment from UTA. Id. ¶ 33. He also received an offer from UMD about the same time he received the offer from UTA. The offer from UMD was oral and included academic and private practice components, a salary of $125,000 per year, and partnership consideration after two or three years. Id. ¶ 34. Dr. Jindal believes Baptist Memorial's offer was "a little bit better" than the offer he received from UMD. Id. ¶ 35. He chose not to except that offer because he believed Indianapolis was a better community and a better environment. He was also impressed by the medical school and its academic atmosphere. Id. ¶ 36.
C. DR. JINDAL BEGINS WORKING FOR UTA
Within a short time of beginning employment with UTA, Dr. Jindal evidenced a strong interest in researching and publishing papers either as a primary investigator or in collaborative efforts with colleagues. Id. ¶ 37. Dr. Filo considered Dr. Jindal to be a very bright man who had many good ideas. Id. ¶ 162. Dr. Jindal did a good job getting the islet cell program going and the clinical trials running. Id. ¶ 167. During his first three years of his employment with UTA and the IUMC, Dr. Jindal's relationship with his colleagues was congenial and social. Id. ¶ 169. In fact, during that time period he and his colleagues at UTA had no problems getting along. Drs. Leapmen, Milgrom, and Pescovitz invited him to their homes for dinner and to join them in other private social or family events. Id. ¶ 41. Dr. Jindal was happy during his first three years at UTA. The doctors at UTA appeared to like him, and he liked and respected the integrity and professional abilities of the doctors. Id. ¶ 42.
According to Dr. Filo, while Dr. Jindal's research activities were appreciated, it became apparent over time that he was more concerned with the quantity of his research work and publications than the quality. His desire for self-recognition and his superficial approach to patient care became more overt as time passed. Id. ¶ 38. Also, according to Dr. Filo, Dr. Jindal was unable to accept constructive criticism of his clinical work or research even when delivered in the spirit of helpfulness, and it appeared on occasion to UTA doctors that he had little interest in the quality or accuracy of his work. Id. ¶ 39. Despite some misgivings, Dr. Filo initially supported Dr. Jindal, and in the spring of 1996 he gave Dr. Jindal a favorable recommendation for his three-year academic performance review. Id. ¶ 40.
D. AFTER THREE YEARS, THE PARTIES' RELATIONSHIP SOURS
In the middle of 1996, Dr. Jindal approached Dr. Filo and reminded him of his promise regarding a contract and partnership. Jindal Dep. at 55. Dr. Jindal informed Dr. Filo that he had been employed by UTA for three years; that his annual reviews to date had all been excellent; and that based upon the offer, he should be made partner. Id. ¶ 173. According to Dr. Jindal, in response Dr. Filo stated as follows: (1) he denied that he had ever offered Dr. Jindal a partnership after three years; (2) he told him that the rules had changed and that partnership would not be offered until the end of five years of employment; (3) he told Dr. Jindal that UTA could not afford another partner at three years; (4) he told Dr. Jindal to keep working and that he would definitely be made partner at the end of five years; and (5) he gave the impression that he would be the one who would make the partnership decision. Id. ¶ 174.
Following the conversation with Dr. Filo, Dr. Jindal spoke with Dr. Leapman, who was UTA secretary, about UTA honoring the 1993 employment offer. Id. ¶ 180. Dr. Leapman stated that he was not privy to the interview conversations between Dr. Jindal and Dr. Filo; thus, the partnership issue was between them. Dr. Leapman told Dr. Jindal that he should go back and discuss is further with Dr. Filo. Id. ¶ 181. Dr. Jindal also spoke with Dr. Grosfeld, Chairman of Surgery at Indiana University School of Medicine, about Dr. Filo reneging on the partnership offer. Dr. Grosfeld encouraged Dr. Jindal to be patient and stated that he would speak with Dr. Filo. Id. ¶ 183. Dr. Grosfeld also told Dr. Jindal that there was no guarantee that partnerships within corporations would be fulfilled within any specific period of time, and that it was up to the specific corporation that was involved. Jay Grosfeld Dep. at 37. Sometime in late 1996, Dr. Filo learned from Dr. Grosfeld that Dr. Jindal had indeed met with him (without Dr. Filo's knowledge) complaining that Dr. Filo had lied to him about his terms of employment. Id. ¶ 44.
Dr. Jindal believes that Dr. Filo's attitude toward him changed when he started asking about a written contract and partnership status. Id. ¶ 47. At about the same time, Dr. Leapman noticed that Dr. Jindal's behavior changed. For example, he became less friendly with Dr. Leapman and he spent less time seeing patients in UTA's clinic. Id. ¶ 48. Dr. Jindal does not believe that any of the other UTA doctors were angry with him for raising the partnership and employment contract issues, and that his dispute was with Dr. Filo, only. Id. ¶ 49.
Dr. Filo believed that Dr. Jindal had misrepresented his oral employment agreement with UTA, and that his efforts to manipulate his employment situation by complaining to Dr. Grosfeld resulted in a strained relationship between Dr. Jindal and the shareholders of UTA. Id. ¶ 50. Over time Dr. Jindal all but refused to talk with Dr. Filo, and he began making excuses to avoid his clinical responsibilities. In addition, Dr. Filo believed that he distorted or misrepresented facts, sometimes over small or insignificant incidents; was dishonest in certain communications with peers and colleagues; and engaged in ethical violations of research procedure and protocol. Id. ¶ 51. Colleagues and medical ancillary personnel complained to Drs. Filo, Milgrom, and Grosfeld of Dr. Jindal's uncooperative attitude, his unwillingness to accept direction or his share of responsibilities, his judgment and work in the operating room, and discrepancies in the reported results of his pancreatic islet cell transplant study. Id. ¶ 52.
In August 1996, one of UTA's transplant research study coordinators, Bonnie Brook, came to Dr. Filo to report what she thought were serious irregularities involving improperly signed informed consent statements for two of Dr. Jindal's newly-initiated clinical studies. Id. ¶ 58. After investigating, the IUMC Institutional Review Board ("IRB") denied Dr. Jindal's request to use the data from those studies because he had failed to get proper approval prior to initiating research. Jindal Dep., Ex. H.
Around the same time, Benita Book ("Book"), UTA's Transplant Laboratory Supervisor, sent a memorandum to Dr. Filo informing him of what appeared to be a violation of research protocol involving Dr. Jindal. Book was responsible for ensuring UTA's compliance with federal and state laws regulating the performance of clinical studies involving UTA patients. As part of her duties, she periodically reviewed UTA's collection of data, records, protocols, and patient consents. During a review process, she found some consent forms procured by Dr. Jindal which contained improper signatures or dates. When she pointed out those discrepancies to Dr. Jindal, he made no effort to explain them; instead, he relieved her from any further oversight duties involving his research. Dr. Filo reported these discrepancies to the IRB at the IUMC. Id. ¶¶ 60-61.
During his 1997 annual University review with Dr. Grosfeld, Dr. Jindal again made it known that he wished to be made partner in UTA as promised. Dr. Grosfeld again asked him to be patient and promised to speak with Dr. Filo. Id. ¶ 185. Dr. Jindal spoke with Dr. Leapman again in 1997 about being made a partner and asked for a written contract. Again, Dr. Leapman stated that he was not privy to Dr. Jindal's conversation with Dr. Filo, told him to be patient, and assured him that he would be made a partner at the end of five years. Id. ¶ 186.
In 1996 or 1997, medical residents also began complaining to Dr. Grosfeld about Dr. Jindal's judgment and work in the operating room. Other members of the faculty were concerned about some of the results of the pancreatic islet cell transplant situation. Apparently, some of them felt the results were disappointing, and yet it was submitted for publication. Grosfeld Dep. at 40-41. By the end of 1997, Dr. Grosfeld was receiving complaints from UTA doctors that Dr. Jindal was not a team player. During the last quarter of 1998, at least two of the UTA doctors expressed concern to Dr. Grosfeld about Dr. Jindal's patient care and his disruptive behavior on the transplant unit. More specifically, Dr. Grosfeld received complaints that Dr. Jindal was not following directions, that he was changing orders, and that he was being overbearing to the staff, transplant coordinators, and the nurses. Id. ¶ 54.
In March 1998, Maggie Judge ("Judge"), one of UTA's Clinical Renal Transplant Coordinators, reported to Dr. Filo that Dr. Jindal had attempted to arrange a percutaneous liver biopsy on a patient who had undergone an experimental intraheptic allo-islet cell transplant. Id. ¶ 62. The liver biopsy proposed by Dr. Jindal was not medically indicated and was not a part of his IRB-approved experimental protocol. Id. ¶ 63. Over Judge's objections, Dr. Jindal suggested that the liver biopsy could be accomplished using the facilities of the Clinical Research Center ("CRC"). When the CRC staff declined the use of their facilities because the liver biopsy was being done solely for research purposes and had to be covered under an approved IRB protocol, Dr. Jindal suggested to Judge that the biopsy be done in the surgery outpatient area with the bills for the facility use sent directly to him. Id. ¶ 64. Judge apparently understood why Dr. Jindal wished to perform the biopsy, but contacted Drs. Filo and Leapman regarding the procedure. Upon determining that the biopsy was not medically necessary for the patient, Dr. Leapman immediately stopped the process. Id. ¶ 65.
E. DR. JINDAL CONTINUES TO QUESTION UTA ABOUT A WRITTEN CONTRACT AND PARTNERSHIP STATUS
In July or August 1998, Dr. Jindal once again went to Dr. Filo's office to discuss a written contract and partnership with UTA. Id. ¶ 191. Dr. Jindal pointed out to Dr. Filo that he had fulfilled all commitments of their oral employment agreement and had receive an excellent fifth-year review by Dr. Grosfeld. Id. ¶ 192. Dr. Filo responded by screaming at Dr. Jindal. Id. ¶ 193. Dr. Filo accused Dr. Jindal of lying about his recollection of a three-year partnership offer. Id. ¶ 194. He also accused Dr. Jindal of stealing a Fujisawa clinical study and a facsimile related to that study. Id. ¶¶ 195-196. Dr. Filo stated that as the director of UTA, he should have gotten the study and questioned why Dr. Jindal had the study. Id. ¶ 198. During the conversation, Dr. Filo said that Indians were liars, cheats, and thieves. Jindal Dep. at 80-81. He also told Dr. Jindal that "Indians are culturally different and confrontational," and that Dr. Jindal was unable to work with him. Jindal Dep. at 72, 74. Dr. Jindal met with Dr. Filo at least two more times during the fall of 1998 to discuss his contract and being made partner. During each of those meetings Dr. Filo repeated that Indians were liars, cheats, and thieves. Id. ¶ 237. Dr. Filo admits that he made remarks that could have been perceived as racist. Id. ¶ 239. Also, on a number of occasions Dr. Filo told Dr. Jindal not to refer patients to nephrologists born outside of the United States, specifically Drs. Sadiq, Singh, Jeevan, Umapathy, Agarwal, Venkat, and Dominguez. Id. ¶ 240. Other than his attorney, Dr. Jindal told nobody of Dr. Filo's alleged comments before his termination. Id. ¶ 77.
On October 30, 1998, Dr. Jindal wrote a letter to Dr. Grosfeld, the Chairman of the Department of Surgery at the IUMC. In his letter, Dr. Jindal accused Dr. Filo of not allowing him to participate in two multicenter research trials or respond to a grant offering by the National Institute of Health, and of attempting to destroy his academic career. Dr. Jindal did not accuse Dr. Filo of making racist comments, nor did he suggest in any way that Dr. Filo had discriminated against him because of his race or national origin. Id. ¶ 78. Dr. Jindal did not tell Dr. Filo or any of the UTA doctors that he had written to Dr. Grosfeld to complain about his treatment, nor did he complain to Dr. Grosfeld that he had been subjected to racial or ethnic remarks. Id. ¶ 79.
One of Dr. Jindal's complaints was that Dr. Filo "blocked" his participation in a research project. Dr. Jindal was involved in approximately six or seven studies or research projects as a principal investigator while employed by UTA. He collaborated on another six or seven additional studies during his employment. Dr. Filo and the other UTA doctors approved Dr. Jindal's participation in all of these studies except for one drug study sponsored by Fujisawa. Id. ¶ 101. Dr. Filo was not happy with the science of the Fujisawa study and thought Dr. Jindal was exhibiting a generally uncooperative attitude. Id. ¶ 102. Dr. Jindal believes that Dr. Filo blocked his participation in the Fujisawa study because Dr. Jindal refused to put Dr. Filo's name on manuscripts Dr. Jindal submitted for publication. Id. ¶ 103.
UTA doctors are permitted to conduct or participate in particular research studies only if authorized by a joint decision of the UTA doctors as a group, and unanimous approval is required. Id. ¶ 104. Dr. Jindal was not the only doctor to have participation in such research studies "blocked" by UTA. Dr. Pescovitz, one of the principal shareholders of UTA, had at least three proposed research studies blocked by the group. The rejected studies included: (1) a National Institute of Health-sponsored study testing the effects of the withdrawal of an anti-rejection drug, mycophenolate mofetil; (2) a study sponsored by Wyeth-Ayerst, Inc., to look at Sirolimus, an immunosuppresent drug to be used with new liver transplant patients; and (3) a study, sponsored by Biotransplant, Inc., to look at tolerance induction protocol for kidney transplant patients. Id. ¶ 105.
On November 17, 1998, Dr. Jindal wrote a second letter to Dr. Grosfeld, this time criticizing Dr. Filo for complaining that islet transplantation patients (at least partially under Dr. Jindal's care) were not being adequately seen in the General Clinical Research Center. Again, Dr. Jindal made no claim that Dr. Filo's conduct or actions were discriminatory in nature. Id. ¶ 80. That same month, the Dean of the IUMC received two anonymous letters accusing Dr. Pescovitz of unethical conduct. UTA's doctors concluded from an analysis of the style and format of the letters that Dr. Jindal had written them. Id. ¶ 81. Dr. Grosfeld believes that Drs. Filo and Leapman mentioned to him their suspicions about the letters. Grosfeld Dep. at 68-69.
On December 7, 1998, Dr. Jindal's attorney, Michael Schultz ("Schultz"), wrote a letter addressed to Dr. Filo in which he accused UTA, in substance, of treating Dr. Jindal "adversely" with respect to his contract of employment and his participation in certain studies and trials, of threatening him with dismissal, and of making unspecified defamatory statements. The letter does not accuse UTA of discrimination on the basis of race or national origin, nor does it imply a discriminatory motive to UTA's actions. Id. ¶ 83. At no time prior to December 29, 1998, did Dr. Jindal, either personally or through his attorney, inform UTA or its doctors of his claim or belief that he had suffered an adverse employment action because of his race or national origin. Id. ¶ 84. Schultz did not communicate with UTA or its attorneys between December 7, 1998 (the date of his letter to Dr. Filo), and December 28, 1998, the date UTA decided to terminate Dr. Jindal's employment. Id. ¶ 85.
On or after December 27, 1998, Dr. Jindal wrote a letter to Dr. Robert W. Holden ("Dean Holden"), Dean of the Indiana University School of Medicine, accusing Dr. Filo, in part, of changing the terms of his employment contract, of using racist and derogatory language to describe him, of blocking his participation in clinical trials, and of threatening to fire him if he did not include Dr. Filo's name on his manuscripts. Id. ¶ 86. Dr. Jindal did not send this letter to anyone except Dean Holden. He did not show a copy of the letter to any of the doctors at UTA. He also did not discuss the contents with any of the UTA doctors before he was fired, except to tell Dr. Filo that he was going to complain to the Dean and to Dr. Grosfeld about Dr. Filo's blocking of his studies, his general attitude, and the fact that he had not received a contract. Id. ¶ 87. The existence and the contents of Dr. Jindal's letter to Dean Holden were not communicated to UTA until January 6, 1999. Id. ¶ 88. That same day, UTA learned for the first time of Dr. Jindal's complaints to Dean Holden. Id. ¶ 89. Prior to that time, Dr. Jindal had not informed Dr. Filo or any other defendant that he thought they were discriminating against him because of his race and/or national origin. Id. ¶ 90.
F. UTA DECIDES TO TERMINATE DR. JINDAL
Several times between August 1998 and December 28, 1998, UTA doctors discussed among themselves their concerns with Dr. Jindal's behavior and conduct and whether he should be made a partner in the practice. Id. ¶ 91. Despite these concerns, Dr. Jindal was told as late as the summer of 1998 that he would be brought into the partnership if his vitriolic relationship with his colleagues in the practice could be resolved. Id. ¶ 92.
On December 28, 1998, at its regularly scheduled annual Board of Directors meeting, the UTA doctors and their attorney, Joseph Eke, discussed, among other things, Dr. Jindal's claim that UTA lied to him about his "partnership" status, his attempts to manipulate his employment situation by complaining to Dr. Grosfeld, his uncooperative and confrontational attitude, his likely authorship of two anonymous letters critical of Dr. Pescovitz, and his decision to hire a lawyer to intimidate UTA and to pressure it into making him a partner in the practice. Id. ¶ 93. That same day, the Board of Directors voted to terminate Dr. Jindal's employment with UTA effective December 31, 1998. Id. ¶ 94. On December 29, 1998, Dr. Filo wrote a letter to Dr. Jindal to inform him of the decision. Id. ¶ 95.
G. EVENTS SINCE DR. JINDAL'S TERMINATION
After Dr. Jindal's termination, Dr. Pescovitz told Dr. Stuart Sherman that Dr. Jindal had been terminated for unethical research practices. He also told his research study coordinators that Dr. Jindal was fired for "research improprieties, amongst other things." Pescovitz Dep. at 56-57. Dr. Pescovitz also apparently told one of the research nurses that Dr. Jindal had been fired because of research improprieties. Jindal Dep. at 187. According to Dr. Jindal, members of UTA also told Drs. Narga Chalsani, Jesus Dominguez, Nilesh Patel, and Bruce Molitoris that he had been fired for research improprieties. Jindal Dep. at 192.
More than a year prior to the date that UTA terminated his employment, Dr. Jindal told Dr. Leapman and Dr. Milgrom that he was looking at another transplant program and had been invited to interview for a position at the University of Glasgow. Dr. Jindal told Dr. Milgrom that he would consider a position to direct a transplant program if a suitable position were offered. According to Dr. Jindal, a "suitable" position was one with a program in which his wife would also be offered a position. Dr. Jindal acknowledged that a position directing a transplant program could be a step up for him. He made a formal application to the University of Glasgow in 1997, and was invited for an interview in the fall of that year. The University of Glasgow offered Dr. Jindal the position of Director of Transplant Surgery, but he turned it down because he felt he and his family were better off in the United States. In mid-1997, Dr. Jindal was also invited to apply and interview for a similar position at the University of Liverpool in England. Dr. Jindal turned down that position for the same reason he turned down the University of Glasgow. Around the same time, Dr. Jindal also looked at an employment position in Mobile, Alabama, but he turned down that offer because he was not happy with the position. Id. ¶¶ 115-123.
Although Dr. Jindal declined the position at the University of Glasgow, the position remained open. In the first week of January 1999, less than 10 days following the termination of his employment, Dr. Jindal again contacted the University of Glasgow and was again offered the Director of Transplant Surgery position. Dr. Jindal formally accepted the position in late February or early March, 1999. Id. ¶¶ 125-126.
II. STANDARDS
A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Logan v. Caterpillar, Inc., 246 F.3d 912, 923 (7th Cir. 2001). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
On certain occasions, the Seventh Circuit had suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. Holland, 883 F.2d at 1312. As the Seventh Circuit has recently emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. SECTION 1981 STANDARDS
Section 1981 provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts, . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Although § 1981 and Title VII differ in the types of discrimination they proscribe, the methods of proof and elements of the case are essentially identical. Johnson v. City of Fort Wayne, 91 F.3d 922, 940 (7th Cir. 1996) (citing Von Zuckerstein, 984 F.2d 1467, 1472 (7th Cir.), cert. denied, 510 U.S. 959 (1993. Accord, Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir. 1999), cert. denied, 530 U.S. 1204 (2000) (Courts employ the same legal framework in analyzing Title VII and § 1981 claims).
1. Disparate Treatment
Without direct evidence that his termination was discriminatory, Dr. Jindal must utilize "indirect" or, as otherwise termed, the McDonnell Douglas burden-shifting method of proving a discrimination claim. Under this method, the plaintiff must first establish a prima facie case. Olsen v. Marshall Ilsley Corp., 267 F.3d 597, 600 (7th Cir. 2001) (citing Dunn v. Nordstrom, Inc., 260 F.3d 778, 784-85 (7th Cir. 2001). If he meets this burden, the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its termination. Id. Once the defendant does so, the burden shifts back to the plaintiff to prove that the defendant's articulated reason is a pretext for discrimination. Id.
To establish a prima facie case of race or national origin discrimination, a plaintiff must show that: (1) he belongs to a protected class, (2) he performed his job according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated more favorably. Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001).
2. Hostile Work Environment
An employer may also be liable for discrimination under § 1981 if one of its employees was subjected to a hostile work environment based on his race. To recover, a plaintiff must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race; (3) the harassment was severe and pervasive so as to alter the conditions of his environment and create a hostile or abusive working environment; and (4) there is a basis for employer liability. Mason v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000), citing Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
3. Retaliation
Without direct evidence of retaliation, a plaintiff must show that after engaging in protected activity he, and not any similarly situated employee who did not engage in protected activity, was subjected to an adverse employment action even though he was performing his job in a satisfactory manner. If the defendant produces no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, it is entitled to summary judgment. Otherwise, there must be a trial. Stone v. City of Indianapolis Public Utilities Div., 2002 WL 234239, *3 (7th Cir. February 19, 2002).
C. STATE LAW CLAIMS
1. Defamation
Under Indiana law, defamation consists of the following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 968 (Ind.Ct.App. 2001) (citing Davidson v. Perron, 716 N.E.2d 29, 37 (Ind.Ct.App. 1999)). A communication is defamatory per se if it imputes criminal conduct. Id. at 968 (citing Levee v. Beeching, 729 N.E.2d 215, 220 (Ind.Ct.App. 2000). Generally, the determination of whether a communication is defamatory is a question of law for the court. Id. at 968-69 (citing Davidson, 716 N.E.2d at 37).
2. Promissory Estoppel
Dr. Jindal has also alleged that UTA promised him that it would make him partner at the end of three years of employment. The Indiana Statute of Frauds provides, in part, that no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, unless the promise upon which the action is in writing and signed by the party to be charged therewith. See I.C. § 32-2-1-1. Even when oral promises fall within the Statute of Frauds, however, they may be enforced under the doctrine of promissory estoppel. It is under this theory that Dr. Jindal attempts to proceed.
A claim of promissory estoppel encompasses the following elements: (1) a promise by the promissor; (2) made with the expectation that the promisee will rely thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by enforcement of the promise. Brown v. Branch, 758 N.E.2d 48, 52 (Ind. 2001) (citing First Nat'l Bank of Logansport v. Logan Mfg. Co., Inc., 577 N.E.2d 949, 954 (Ind. 1991)).
[I]n order to establish an estoppel to remove the case from the operation of the Statute of Frauds, the party must show that the other party's refusal to carry out the terms of the agreement has resulted not merely in a denial of the rights which the agreement was intended to confer, but the infliction of an unjust and unconscionable injury and loss.
In other words, neither the benefit of the bargain itself, nor mere inconvenience, incidental expenses, etc., short of a reliance injury so substantial and independent as to constitute an unjust and unconscionable injury and loss are sufficient to remove the claim from the operation of the Statute of Frauds.
Id. (citing Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840, 845 (Ind.Ct.App. 1987).
III. DISCUSSION
A. CLAIMS UNDER § 1981
1. Retaliation
Dr. Jindal claims that UTA terminated him in retaliation for his sending a letter to Dean Holden complaining of Dr. Filo's allegedly discriminatory conduct. It is undisputed, however, that Dr. Jindal did not send the letter until December 27, 1998, and that UTA did not become aware of it until January 6, 1999 — several days after its decision to terminate Dr. Jindal. Although Dr. Jindal argued that he told Dr. Filo he was going to send the letter to Dean Holden a couple of days before he actually did so, there is no evidence that he told Dr. Filo that he was going to complain about discrimination — as opposed to the contract and partnership issues. With no knowledge that Dr. Jindal had complained of discrimination, UTA obviously could not have terminated him because of such activity. See Maarouf v. Walker Manufacturing Co., 210 F.3d 750, 755 (7th Cir. 2000) (absent knowledge on decisionmaker's part of protected activity, plaintiff lacks a causal link between the termination and the complaint of discrimination). Accordingly, to the extent Dr. Jindal relies upon his letter to Dean Holden as the basis for his retaliation claim, it fails as a matter of law and Defendants are entitled to summary judgment.
The Court is aware that the Seventh Circuit recently modified the elements of a prima facie case in retaliation claims. Under the indirect method, a plaintiff must now show: (1) he engaged in statutorily protected activity; (2) he performed his job according to his employer's legitimate expectations; (3) despite meeting his employer's legitimate expectations, he suffered a materially adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. See Dyson v. City of Chicago, 2002 WL 272774, *7 (7th Cir. February 27, 2002) (citing Stone, 2002 WL at *1). Even assuming Dr. Jindal could establish a prima facie case under this standard, however, he could not show pretext if there is no evidence that Defendants had any knowledge of his protected activity.
Dr. Jindal also asserts that his attorney's letter to UTA in December of 1998, which preceded his termination, is another form of protected activity. The Court has reviewed that letter, however, and discovered no language indicating that Dr. Jindal was complaining of discriminatory treatment. Instead, Dr. Jindal's attorney merely indicated that he was investigating his client's claim that he "has been treated adversely by [UTA] with respect to his contract of employment, his participation in certain studies and trials, threats of dismissal, and unsubstantiated defamatory statements." Jindal Dep., Ex. H. Again, this letter is not opposing or complaining of discriminatory conduct prohibited by § 1981, and thus cannot be the basis of a retaliation claim. As a result, Defendants are entitled to summary judgment on Dr. Jindal's retaliation claim.
2. Hostile Work Environment
Dr. Jindal also alleges that he was subjected to a hostile work environment during his tenure at UTA. His primary evidence in support of this claim is Dr. Filo's comments about Indians being liars, thieves, and cheats. He also refers to a comment that another UTA physician allegedly made to one of Dr. Jindal's co-workers to the effect that Indians should not be physicians and that they are better off being shopkeepers. Finally, Maggie Judge once told Dr. Jindal that he should leave them alone and go back to India. As discussed above, to recover on a hostile environment claim Dr. Jindal must show that: (1) he was subject to unwelcome harassment; (2) the harassment was based on his race and/or national origin; (3) the harassment was severe and pervasive so as to alter the conditions of his environment and created a hostile or abusive working environment; and (4) there is a basis for employer liability. Mason, 233 F.3d at 1043.
To be actionable, any harassment must be based upon a protected characteristic and must be "sufficiently severe or pervasive to `alter the conditions of [the victim's] employment and create an abusive working environment.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Whether the harassment is sufficiently severe or pervasive depends on all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23-24 (1993).
Simple teasing, offhand comments, and isolated incidents — unless extremely serious — do not establish actionable harassment. Faragher, 524 U.S. at 788. The alleged harassment must be both objectively and subjectively offensive. That is, a reasonable person must find the environment hostile or abusive and the plaintiff must actually perceive it as offensive. Garton v. Thomson Consumer Electronics, Inc., 2000 WL 1617753, *7 (S.D.Ind. October 25, 2000). When determining whether a hostile environment exists, the Court must consider the totality of the circumstances. Gordon v. Southern Bells, Inc., 67 F. Supp.2d 966, 977 (S.D.Ind. 1999). However, "relatively isolated instances of non-severe misconduct will not support a claim of hostile work environment." Silk v. City of Chicago, 176 F.3d 390, 398 (7th Cir. 1999).
In this case, while there were some unfortunate and unenlightened comments made to Dr. Jindal and his co-workers, they were not so severe or pervasive that they created an abusive working environment. Dr. Jindal did not even hear the comment that Indians should not be physicians, but instead learned of it second-hand from one of his co-workers. When harassing statements are "directed at someone other than the plaintiff, the impact of [such] `second hand harassment' is obviously not as great as the impact of harassment directed at the plaintiff." McPhaul v. Board of Commissioners, 226 F.3d 558, 567 (7th Cir. 2000), cert. denied, 532 U.S. 921 (2001) (internal quotations and citations omitted). The statements that were directed to Dr. Jindal were isolated, they were not physically intimidating or threatening, they were not sexually suggestive, and while they may have been offensive, they were not so offensive as to constitute actionable conduct. See, e.g., Ngeunjuntr v. Metropolitan Life Ins. Co., 146 F.3d 464, 467-68 (7th Cir. 1998) (relatively isolated comments suggesting bias against ethnic minorities insufficient to survive summary judgment). In sum, Dr. Jindal has failed to present sufficient evidence showing that his workplace was permeated with discriminatory intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of Dr. Jindal's employment and create an abusive working situation Accordingly, Defendants are entitled to summary judgment on Dr. Jindal's hostile work environment claim.
3. Disparate Treatment
Dr. Jindal also claims that UTA terminated his employment because of his race and/or national origin. To establish a prima facie case, Dr. Jindal must show that: (1) he belongs to a protected class, (2) he performed his job according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated more favorably. Curry, 270 F.3d at 477. The parties agree that Dr. Jindal was a member of a protected class and that he suffered an adverse employment action. Defendants argue, however, that Dr. Jindal fails to meet the second and fourth elements — that he was performing up to their legitimate expectations and that similarly situated individuals outside the protected class were treated more favorably.
According to Dr. Jindal, he was performing his job well right up until his termination. One of UTA's partners, Dr. Leapman, even told him in or around the summer of 1998 — just months before his termination — that if he "ironed out" some of his relationships with the other partners he would be made a partner at the end of that year. Nonetheless, Defendants attempt to introduce several examples of Dr. Jindal's alleged inadequate performance to show that he was not performing up to their legitimate expectations. But considering such evidence at the prima facie stage is improper. See, e.g., Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 512 (7th Cir. 1989) (claim that employer discharged black employee for refusing work assignment and, thus, for failing to meet employer's legitimate job expectations, was not appropriate challenge to sufficiency of black employee's prima facie case under § 1981); Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000) (". . . when assessing whether a plaintiff has met her employer's legitimate expectations at the prima facie state of a termination case, a court must examine plaintiff's evidence independent of the nondiscriminatory reason `produced' by the defense as its reason for terminating plaintiff."). Instead, Defendants' evidence of their concerns with Dr. Jindal's performance goes to their legitimate, nondiscriminatory reason for their actions. Thus, Dr. Jindal has established the second element of his prima facie case.
That leaves the fourth element, which requires Dr. Jindal to show that similarly situated individuals outside the protected class were treated more favorably. He has established this element, also, by pointing to the other UTA members who were made partner at the completion of their partnership "tracks." The parties dispute whether Dr. Jindal's "track" in this case was three or five years — and for purposes of this summary judgment motion the Court must accept the facts in the light most favorable to Dr. Jindal, who testified that he was promised a three-year "track" — but there is no question that he did not make partner at the completion of either time period. In contrast, it appears from the record that other UTA employees that completed their partnership tracks — including those outside the protected class — were retained as partners. In light of this evidence, the Court concludes that Dr. Jindal has established a prima facie case of discrimination.
In response, Defendants contend that they terminated Dr. Jindal for a variety of reasons, including for being intellectually dishonest, for falsifying research data to enhance his personal reputation, for emphasizing self-gain or self-interest over patient safety, for ignoring clinical responsibilities, and for alienating himself from his UTA colleagues. See Defendants' Reply Brief at 7. Defendants have provided evidence of a legitimate, non-discriminatory reason, a burden that is rather light to meet. See Mills v. First Federal Savings Loan Ass'n. of Belvedere, 83 F.3d 833, 845 (7th Cir. 1996) (defendant's burden of producing evidence of a legitimate, non-discriminatory reason "is merely a burden of production . . . that is not difficult to satisfy.") (citations omitted). As a result, the presumption of discrimination dissolves, and the burden shifts back to Dr. Jindal to show that Defendants' proffered reasons are a pretext for discrimination.
Pretext "means a lie, specifically a phony reason for some action." Millbrook v. IBP, Inc., 2002 WL 239090, *4 (7th Cir. February 20, 2002) (citing Russell v. Acme Evans Co., 51 F.3d 64, 68 (7th Cir. 1995)). The question is not whether the employer properly evaluated the competing applicants, but whether the employer's reason for choosing one candidate over the other was honest. Id. (citing Brill v. Lante Corp., 119 F.3d 1266, 1273 (7th Cir. 1997). "`Pretext for discrimination' means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's tracks." Id. (quoting Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001) (internal citations omitted). Thus, even if Defendants' reasons for terminating Dr. Jindal were "`mistaken, ill considered or foolish, so long as [UTA] honestly believed those reasons, pretext has not been shown.'" Id. (quoting Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000)).
Dr. Jindal has produced evidence that raises a question about the truthfulness of Defendants' reasons for his termination. Specifically, beginning in 1998 — the year that Dr. Jindal was terminated — Dr. Filo told him on at least three different occasions that Indians were liars, cheats, and thieves. Also, on a number of occasions Dr. Filo told him not to refer patients to nephrologists born outside of the United States, specifically Drs. Sadiq, Singh, Jeevan, Umapathy, Agarwal, Venkat, and Dominguez. Dr. Milgrom, who owns 18.2% of UTA and presumably voted in favor of denying Dr. Jindal entrance into the partnership and terminating his employment, told one of Dr. Jindal's co-workers that "Indians should not be physicians and they are better off being shopkeepers." Significantly, Dr. Milgrom specifically referred to Dr. Jindal when he made this comment. Jindal Dep. at 92, 97. While these comments are not direct evidence of discrimination and are insufficient to amount to a hostile work environment, they do create a factual question about whether Defendants' proffered reasons for terminating Dr. Jindal were the real reasons. Did Defendants terminate Dr. Jindal because they believed he had performance issues, or did they do so because Dr. Filo, Dr. Milgrom, and other partners harbored animus toward Indians? That question is best left for a jury. Accordingly, Defendants are not entitled to summary judgment on Dr. Jindal's disparate treatment claim.
D. STATE LAW CLAIMS
1. Promissory Estoppel
Dr. Jindal also seeks to enforce Dr. Filo's alleged oral promise of partnership within three years. Dr. Jindal concedes that this oral promise would ordinarily be unenforceable because of Indiana's Statute of Frauds, see I.C. § 32-2-1-1, but claims that the promise is removed from the operation of that statute under the doctrine of promissory estoppel. To state a claim for promissory estoppel, a plaintiff must show: (1) a promise by the promisor; (2) made with the expectation that the promisee will rely thereon; (3) which induces reasonable reliance by the promisee; (4) of a definite and substantial nature; and (5) injustice can be avoided only by enforcement of the promise. Branch, 758 N.E.2d at 52. The Indiana Supreme Court recently reiterated, however, that while the doctrine of promissory estoppel may remove an oral agreement from the operation of the Statute of Frauds, it is also true that the party asserting the doctrine carries a heavy burden of establishing its applicability. Id.
[I]n order to establish an estoppel to remove the case from the operation of the Statute of Frauds, the party must show that the other party's refusal to carry out the terms of the agreement has resulted not merely in a denial of the rights which the agreement was intended to confer, but the infliction of an unjust and unconscionable injury and loss.
In other words, neither the benefit of the bargain itself, nor mere inconvenience, incidental expenses, etc., short of a reliance injury so substantial and independent as to constitute an unjust and unconscionable injury and loss are sufficient to remove the claim from the operation of the Statute of Frauds.
Id. (citations omitted). In addition, "[i]f what the party gave up in reliance on an oral promise was no greater than what the party would have given up in any event, then the consideration is deemed insufficient to remove the oral promise from the operation of the Statute of Frauds." Id. at 53.
Dr. Jindal claims that he gave up offers from Baptist Memorial and UMD in reliance upon Dr. Filo's promise that he would be made a partner in three years. In addition, he moved his family to Indiana in reliance upon that promise. Neither of these acts, however, is sufficient to remove the oral promise from the Statute of Frauds. "[N]either the actions involved in moving one's household to a new location nor the mere relinquishment of an existing employment are sufficient to constitute independent consideration." Id. The Indiana Supreme Court has explained:
The reason for this view is that in moving and/or giving up her prior job, the employee is merely placing herself in a position to accept the new employment. There is no independent detriment to the employee because she would have had to do the same things in order to accept the job on any basis, and there is no independent benefit bestowed upon the employer.
Id. (citing Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 176 (Ind. 1996)). Thus, Dr. Jindal's reliance upon the promissory estoppel theory to remove his claim for the Statute of Frauds is misplaced, and Defendants are entitled to summary judgment on that claim.
2. Defamation
Dr. Jindal also asserts a claim for defamation. Under Indiana law, private individual plaintiffs bringing defamation actions must show "actual" malice in matters of public or general concern. Ratcliff v. Barnes, 750 N.E.2d 433, 437 (Ind.Ct.App. 2001) (citing Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 452 (Ind. 1999)). Actual malice exists when the defendant publishes a defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. (citations omitted). To prove that a defendant published with reckless disregard, a plaintiff must designate "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."
The alleged defamation in this case took place when various UTA members told others that Dr. Jindal had been terminated for research improprieties. Dr. Jindal has produced no evidence, however, that any of the UTA members made the statements with knowledge that they were false or with reckless disregard for their truthfulness. Without any evidence of malice, Dr. Jindal's claim for defamation fails as a matter of law.
The parties discuss in their briefs some other allegedly defamatory statements, but Dr. Jindal's complaint only references the comments about his termination for research improprieties. In addition, Dr. Jindal testified in his deposition that those comments were the only defamatory statements. See Jindal Dep. at 190.
IV. CONCLUSION
Dr. Jindal has failed to present sufficient evidence from which the Court could find a genuine issue of material fact on his § 1981 claims for retaliation and hostile work environment. In addition, he has failed to present sufficient evidence to create a genuine issue of material fact on his state law claims for defamation and promissory estoppel. Accordingly, the Court GRANTS Defendants' Motion for Summary Judgment on those claims. A genuine issue of material fact does exist, however, with respect to Dr. Jindal's § 1981 disparate treatment claim that Defendants terminated him because of his race and/or national origin. The Court therefore DENIES Defendants' motion on those claims.
IT IS SO ORDERED