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Ervin v. Howard University

June 24, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


When the residency program in emergency medicine at Howard University Hospital lost its accreditation, the Hospital's Medical Director asked Dr. Michelle Grant Ervin, Chair of the Emergency Medical Department, to resign her chairmanship. Dr. Ervin declined and was removed, although she retained her roles as a professor in the Howard University College of Medicine and practicing physician in the Hospital. Dr. Ervin sues both Howard University ("Howard" or "the University") and Howard University Hospital ("the Hospital" or "HUH") alleging that Defendants: (1) discriminated against her based on her gender; (2) created a hostile work environment based on gender; (3) retaliated against her for opposing discrimination; (4) wrongfully discharged her from employment in violation of public policy; and (5) breached an employment/practice agreement.*fn1 Her claims for discrimination and retaliation are based upon alleged violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-16, and the District of Columbia Human Rights Act, D.C. Code §§ 2-1401.01-1403.17.

Defendants move for partial summary judgment and Dr. Ervin moves for summary judgment on Defendants' Counterclaim against her for: (1) breach of contract; (2) unjust enrichment; (3) restitution; and (4) conversion. See Dkt. ## 35 & 36. Because there is no evidence of gender discrimination, summary judgment will be granted to Howard and HUH on Dr. Ervin's claims of gender discrimination and hostile work environment. Summary judgment will also be granted on her claim of wrongful discharge in violation of public policy, as to which the facts are not in dispute. Because the facts are disputed, the Court cannot decide on this record Dr. Ervin's claims of retaliation or Defendants' Counterclaim.


Howard University is a private educational institution located in the District of Columbia, of which one component is the College of Medicine. Howard University Hospital operates a private hospital facility providing health care services in the District of Columbia. Faculty at the College of Medicine also practice at the Hospital. At the time of the events in question, Howard operated a residency program for physicians specializing in emergency medicine.

Dr. Michelle Grant Ervin was hired by HUH to serve as Chair of the Emergency Medicine Department ("EMD") in 1993. Compl. ¶ 10. Dr. Thomas Gaiter was Medical Director of the Hospital and had the final decision on Dr. Ervin's hire. See Defs.' Statement of Material Facts [Dkt. # 37] ¶ 3; Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs.' Mem.") [Dkt. # 35], Exs. 1-2. Nonetheless, as described below, after 1995 they developed a difficult relationship and Dr. Ervin came to refuse to meet personally with Dr. Gaiter unless someone else was present. Pl.'s Statement of Material Facts [Dkt. # 42] ¶ 11.

As Chair of the EMD, Dr. Ervin was the program director of the EMD residency program. Defs.' Statement of Material Facts ¶¶ 16-17. She supervised approximately nine full-time faculty and two part-time faculty in addition to the residents in the program while also performing clinical (patient care) duties. Pl.'s Statement of Material Facts ¶ 3.

At some time in late 1995, Dr. Ervin maintained and refused to back down on her belief that Dr. Wayne Moore, an attending physician in the EMD, should not be paid a full-time salary if he were unwilling to work shifts because he also served as the full-time Director of the D.C. Fire and Emergency Services. Id. ¶ 5. Dr. Moore began serving as Director of the D.C. Fire and Emergency Services in December 1995; in February 1996, Dr. Ervin wrote him a stinging letter, demanding that he return excess salary that had been paid to him. Pl.'s Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Opp'n") [Dkt. # 42], Ex. 3. She asserts that Dr. Gaiter refused to support her in this instance and, due to favoritism,*fn2 allowed Dr. Moore to avoid working shifts. It is this episode from which she traces the difficulties in her relationship with Dr. Gaiter. Pl.'s Opp'n at 4.

In late 1995 or early 1996, Dr. Gaiter asked Dr. Michael Washington, Clinical Director of the EMD, to obtain input from the EMD faculty concerning Dr. Ervin's performance. Compl. ¶ 17. Dr. Washington convened a meeting for that purpose, which Dr. Gaiter did not attend. Defs.' Statement of Material Facts ¶ 4. After some discussion, the faculty voted, seven to three, to support the retention of Dr. Ervin as chair of the EMD.

There was unanimous praise for the outstanding job Dr. Ervin has done in leading the effort that resulted in accreditation for the residency program. This was felt to be a monumental task and the importance of this achievement should not be understated. . . . There were two major areas of concern that the faculty noted.

I. Interactions with Faculty, other Departments

On several occasions Dr. Ervin has created unnecessary hostile interactions with emergency medicine faculty. Faculty members are, at times, not treated with respect, as valued colleagues. Personality conflicts, especially those with Dr. Hambrick and Dr. Moore, should not play a role in department business. This point was felt to be of the utmost importance. If one held a view opposite that of the Chair, then they were put down and castigated in open meeting [sic]. This behavior only serves to alienate faculty and, in some cases, contributed to their decision to leave the department.

II. Decision-Making in the Department

Too often departmental decisions are made unilaterally by the chair. In addition, decisions made by the chair have been presented to Administration as faculty decisions without our approval. . ..

Pl.'s Opp'n, Ex. 4. Dr. Ervin sees this episode as an effort on the part of Dr. Gaiter to obtain a vote of "no confidence" and remove her as Chair of the EMD. See Compl. ¶ 18.

On October 19, 2001, Dr. Ervin sent Dr. Gaiter a memorandum complaining about the unprofessionalism of Dr. Press, then Chair of the Radiology Department. Id. ¶¶ 20-21. Dr. Ervin wrote:

On October 19, 2001 at 1645 [4:45 pm], my associate residency director, Dr. Cherie Terry was in Radiology trying to obtain X-ray readings on ED patients so that dispositions could be made and keep the ED open. After identifying the films, Dr. Terry was using this as a teaching opportunity with 2 medical students (out of State) and 4 residents. Dr. Press verbally abused Dr. Terry, cursed her using foul language and closed the door in the reading room in her face. All of this took place in front of the medical team. I am demanding an immediate apology from this individual, dismissal from the medical faculty and disciplinary action from the Medical-Dental Staff for harassment and denigration of a female faculty member. Nothing less will suffice.

Pl.'s Opp'n, Ex. 7. Dr. Gaiter merely responded that an investigation would take place. Pl.'s Statement of Material Facts ¶ 16. That was the end of the matter, and Dr. Terry was not disciplined.

Id. ¶¶ 17-18.

In 2002, Dr. Ervin hired three new faculty for the EMD. Compl. ¶ 27. Dr. Gaiter did not timely sign the paperwork necessary to process their first salary checks. Id. ¶ 28. The Hospital attributes his slow response to the failure of the three new doctors to submit necessary forms. See Defs.' Mem. at 12. In any event, Dr. Ervin contacted the Hospital's Chief Executive Officer, Sherman McCoy, and asked for his help. Compl. ¶ 30. Mr. McCoy directed Dr. Gaiter to sign the checks. Id. ¶ 31. Dr. Ervin was embarrassed by the incident, as one of the new doctors almost faced foreclosure and threatened to quit. Pl.'s Opp'n at 6.

At times during her chairmanship at HUH, Dr. Ervin was required to justify and present the EMD budget at Chair meetings. Defs.' Statement of Material Facts ¶¶ 6-7; Defs.' Mem., Ex. 4. Although Dr. Ervin favored these broad-based presentations, see Defs.' Mem., Ex. 4, she contends that she was required to present publicly because of her gender. Pl.'s Opp'n at 17.

As Chair of the EMD, Dr. Ervin pushed hard to get resources she needed. In February 2003, Dr. Ervin gave a PowerPoint presentation to the Board of Trustees Medical Affairs Committee concerning patient safety and health issues affecting the EMD. Compl. ¶ 36. That presentation prompted Marie C. Johns, a member of the Board of Trustees and the Medical Affairs Committee of the Board, to visit the EMD in April 2003. Id. ¶ 37. During this visit, Dr. Ervin raised her concerns about the "speed or efficiency with which patients moved from the emergency department to inpatient status." Pl.'s Statement of Material Facts ¶ 36. Dr. Ervin also mentioned her concerns about the location of ...

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