Dr. Julius J. Larry, Iii, Dds, and Dr. Abdul-Hakim Ahmed, Dds v. Mark White, Individually and in His Capacity

Citations: 929 F.2d 206; 1991 U.S. App. LEXIS 7055; 1991 WL 47400Docket: 89-2969

Court: Court of Appeals for the Fifth Circuit; April 24, 1991; Federal Appellate Court

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Dr. Julius J. Larry, III and Dr. Abdul-Hakim Ahmed appeal the summary judgment dismissal of their case against Mark White and others in the Fifth Circuit Court of Appeals. Dr. Larry, who graduated from Meharry School of Dentistry, failed the Texas dental licensing exam twice, in August 1983 and June 1984. The exam consists of three parts over three and a half days. He was failed during the August exam for allegedly preparing to lay a base over decay, despite his claim of requesting a "deep check" from examiners. The appellees contend that he failed due to errors noted in the Board's records. 

In June 1984, Dr. Larry asserts he was harassed by examiners for not having a completed dental bridge ready for a pre-cementation check, despite the exam not concluding until noon. The appellees argue that he failed because he did not finish the bridge by the exam's end.

Dr. Ahmed, a graduate of the University of Texas Dental Branch, completed the licensing exam in June 1984. He claims he requested a "deep check" when he feared nerve exposure but was still failed by the examiners for proceeding mechanically. The appellees counter that he failed because he cut through healthy tooth tissue. In September 1984, Dr. Ahmed withdrew from the exam when his bridge did not fit correctly at the pre-cementation check, despite his assertion that it had previously fit. The court ultimately affirmed the district court's dismissal of their suit.

Dr. Ahmed argued at a December 1984 hearing that a rare gum disease, Crohn's Disease, caused a patient's teeth to shift, leading to a misfit of a dental bridge. He claimed the bridge was seated by a licensed dentist shortly after the examination. The Board rejected his argument, stating it could not make exceptions to its rules, despite Dr. Ahmed's assertion that exceptions had been made for white examinees. He declined an offer to retake the exam. 

Separately, Dr. Larry filed a complaint in Texas state court on June 20, 1984, against Babin, Bolton, and the Texas State Board of Dentistry, alleging violations of his equal protection and due process rights under the Fourteenth Amendment. The court dismissed the suit in December 1985 for lack of jurisdiction due to sovereign immunity, and Dr. Larry withdrew his appeal. 

On April 2, 1985, Dr. Larry initiated a suit against eighteen individuals, including Texas Governor Mark White and Board members, claiming racial discrimination and seeking relief under 42 U.S.C. §§ 1981, 1983, and 1985. Dr. Ahmed followed with a similar suit on April 3, 1986, targeting the same defendants plus the Texas State Board of Dentistry and the University of Texas Dental Branch, alleging a conspiracy based on race and civil rights violations. 

The cases were consolidated on November 20, 1986, and on August 1, 1989, the district court granted summary judgment in favor of the defendants, concluding that neither Dr. Larry nor Dr. Ahmed proved the Board acted with racial prejudice. On appeal, they argued that genuine issues of material fact existed regarding racial discrimination in their licensing exams. Dr. Larry presented statistics suggesting poorer outcomes for graduates from predominantly black dental schools compared to those from predominantly white institutions. Dr. Ahmed introduced an unsworn letter from a statistician indicating potential racial discrimination in the application of a specific examination rule, as the only black examinee in a group of twenty-four failed the exam.

Dr. Larry's statistics do not substantiate claims of racial discrimination by the Board, as they suggest alternative explanations for the disparities observed. Notably, out-of-state students, such as those from Meharry and Howard, historically performed worse on the Texas dental licensing exam than in-state students. The data shows a higher failure rate among out-of-state students, without any correlation to race. Furthermore, the statistics do not break down pass rates by race for the students from these schools. However, it is confirmed that all in-state black examinees who took the exams with Dr. Larry and Dr. Ahmed ultimately passed and were licensed in Texas, despite a higher overall failure rate reported during the examined periods.

Dr. Ahmed's statistician's letter was not submitted in a verified format to the district court, thus it could not be considered in the summary judgment ruling. A prima facie case of racial discrimination cannot be established solely based on the failure of one black examinee among twenty-four who faced a "deep check" during the June 1984 exam, particularly without accounting for other relevant variables.

Additionally, the cases of two white examinees who faced issues during their examinations were cited as evidence of discrimination. However, the Board's mistakes in these instances do not inherently indicate racially motivated actions, as individual errors by examiners do not constitute a denial of equal protection rights under the law.

Dr. Ahmed claims that six white examinees, including Dr. Paulette Arana, passed an examination despite experiencing pulpal exposure without receiving a "deep check." However, Dr. Arana's affidavit contradicts this, stating she did receive a "deep check," and three of the six white examinees confirmed they had also received deep checks. There is no evidence supporting Dr. Ahmed's assertion of racial motivation behind the appellees' deep check policy. Neither Dr. Larry nor Dr. Ahmed provided direct evidence of racial discrimination. Dr. Larry's failure in August 1983 was due to procedural issues unrelated to racial bias, and he did not demonstrate that any harassment he experienced was racially motivated. Dr. Ahmed's failure in June 1984 was attributed to unnecessary exposure, not racial discrimination, and he voluntarily withdrew from the September 1984 examination without evidence that the Board was obligated to pass him later. 

Regarding sanctions, Dr. Ahmed argued that the district court abused its discretion by not granting Rule 11 sanctions against appellees for reasserting res judicata and qualified immunity defenses that had previously received adverse rulings. However, the res judicata defense was only relevant to Dr. Larry, who did not raise the Rule 11 issue on appeal. The qualified immunity defense was properly included in the motion for summary judgment after the discovery period had concluded. The district court did not abuse its discretion in denying the request for Rule 11 sanctions.

The district court's judgment is affirmed. Five dental board members must agree to fail an examinee based on examination performance, but the same consensus is not necessary for failing an examinee for missing a deadline. The "deep check" procedure, not documented in the examination manual but verbally explained to candidates, allows examinees to continue if they notify the examiner of potential exposure of a nerve or pulpal cavity during the exam. However, failure can still occur if the subsequent exposure is deemed "careless." Dr. Larry claims his failure was unjustly attributed to unseen loose enamel rods and alleges accusations of theft against him. Dr. Ahmed was aware of a patient’s Crohn's disease but did not consider its implications during the exam. Both Drs. Larry and Ahmed remain eligible to retake the licensing exam. The appellants' sole claim is racial discrimination, without substantive due process arguments. The appellees’ summary judgment motion did not seek dismissal of Dr. Ahmed's state claims but did seek to dismiss all of Dr. Larry's claims with prejudice. Dr. Ahmed's appeal focuses on racial discrimination, which was addressed in the summary judgment motion. Dr. Larry argues that proving discriminatory intent is unnecessary in disparate impact cases, referencing Title VII case law, which is not applicable here. He provides passing rates for dental schools, but lacks corresponding racial data and evidence of program quality or performance on licensing exams from those institutions. Much of his statistical data was not part of the original district court record.

Dr. Ahmed claims that the appellees do not believe African-Americans are entitled to a deep check, yet he fails to provide supporting summary judgment evidence, which has not been found. He also states that none of four white examinees who received a deep check and had pulpal exposure failed, but again lacks evidence. The summary judgment evidence indicates that pulpal exposure without a prior deep check is not an automatic cause of failure, especially if the exposure was unforeseen. Dr. Ahmed references a supposed "automatic" failure rule stated by Board members, but does not cite relevant depositions or evidence, which do not exist in the record. It is acknowledged that examinees were orally informed of the rule prior to the examination. 

The evidence suggests that Babin and Bolton believed Dr. Larry had taken a bridge belonging to another examinee, whose bridge had mysteriously disappeared. During a December 1984 hearing, Dr. Ahmed requested to pass the September 1984 exam despite his voluntary withdrawal due to inability to fit a bridge, which was later fitted by another dentist. Dr. Ahmed attributed his inability to fit the bridge to Crohn's disease causing a shift in molars, presenting a "hypothesis" without substantiation from medical professionals. The supporting medical literature only references general oral effects of Crohn's disease but does not support his specific claims.

Regarding Dr. Larry's federal lawsuit, there may be a res judicata issue due to overlapping parties and facts with an earlier state court judgment. Although the appellees did not raise res judicata in their initial pleading post-state court decision, a court may assert it sua sponte, complicating the assertion of a Rule 11 violation related to res judicata.