Paul, Kamaljit S. v. Theda Clark Medical

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1034

KAMALJIT S. PAUL, Doctor,

Plaintiff-Appellant,

v.

THEDA MEDICAL CENTER, INCORPORATED,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 C 54—William C. Griesbach, Judge.

____________

ARGUED SEPTEMBER 6, 2006—DECIDED OCTOBER 13, 2006

____________

Before FLAUM, Chief Judge, and BAUER and POSNER,

Circuit Judges.

BAUER, Circuit Judge. Dr. Kamaljit S. Paul, an Asian-

Indian man, sued Theda Clark Medical Center (“Theda

Clark”), claiming that he was discriminated against because

of his race in violation of 42 U.S.C. § 1981 and Title VI of

the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Dr. Paul

also claimed that Theda Clark breached its own bylaws by

denying him active staff membership at the medical center.

The district court granted summary judgment in favor of

the defendant. We affirm.

2 No. 06-1034

I. Background

Dr. Paul was born in India. He received a Master of

Surgery from the University of Lucknow in India and a

Master of Neurosurgery from the University of Manchester

in England. In 1984, Dr. Paul came to the United States to

participate in a two-year neurotrauma fellowship. After

completing his fellowship, Dr. Paul moved to Wisconsin and

entered private neurosurgery practice. From 1986 to 1992,

Dr. Paul held medical staff privileges and practiced neuro-

surgery at Mercy Medical Center and St. Elizabeth Hospi-

tal. In 1991, Dr. Paul also received active staff membership

at Theda Clark in Neenah, Wisconsin. Dr. Paul maintained

active status at Theda Clark until May 23, 2003.

In 1998, the American College of Surgeons certified Theda

Clark as a Level II trauma center. The American College of

Surgeons provides guidelines and regulations regarding the

certification process of trauma centers in their “Gold Book”

formally titled Resources for Optimal Care of the Injured

Patient. According to the Gold Book, Level II trauma

certification requires that all neurosurgeons who partici-

pate in the trauma program be board certified.

Theda Clark’s bylaws require that physicians appointed

to active staff membership be available to provide “specialty

care coverage for the emergency department.” Dr. Paul is

not board-certified by the American College of Surgeons in

neurosurgery. From 1992 to 2003, Dr. Paul never performed

surgery at Theda Clark. However, in order to retain his

active staff membership, Dr. Paul reapplied approximately

every two years.1 In January of 2003, Dr. Paul applied to

1

Despite the fact that Dr. Paul was a non-board-certified

neurosurgeon, he was allowed to remain an active staff member

after Theda Clark was designated a Level II Trauma Center in

1998. Theda Clark contends that Dr. Paul’s re-applications should

(continued...)

No. 06-1034 3

extend his active status, anticipating that he would begin

performing surgery there for insurance reasons.2 Dr. Paul

was informed that his application for active status had been

denied because as a non-board-certified neurosurgeon, he

could not provide trauma call coverage at Theda Clark’s

Level II trauma center. Dr. Paul appealed the initial

determination to Theda Clark’s hearing committee. In

upholding the denial, the hearing committee stated that the

denial was based solely on Dr. Paul’s “inability to meet the

requirements outlined in the By-Laws and the American

College of Surgeons Gold Book to provide call coverage for

trauma and pediatric patients at Theda Clark.” Theda

Clark’s hearing committee instead extended Dr. Paul

courtesy status.3 As a courtesy staff member, Dr. Paul

retained the same clinical privileges that he had during his

active status.4

On January 20, 2005, Dr. Paul filed a two-count com-

plaint in federal district court alleging that Theda Clark

1

(...continued)

have been denied in 1999 and 2001, but his status was mistakenly

overlooked due to his inactivity at the hospital.

2

Prior to December 2002, both Theda Clark and Mercy Medical

Center accepted Touchpoint Insurance on behalf of its surgical

patients. A significant number of Dr. Paul’s patients were insured

by Touchpoint. In December of 2002, Mercy Medical no longer

accepted Touchpoint Insurance, and as a result, Dr. Paul planned

to utilize Theda Clark more frequently in 2003.

3

While physicians with active staff membership at Theda Clark

may perform as many surgeries or procedures as their practice

requires, courtesy staff members may not admit more than twenty

patients every two years.

4

Clinical privileges refer to the types of treatments, procedures,

and care each physician is entitled to provide at Theda Clark. In

contrast, staff membership is reflective of the level of patient

involvement and administrative responsibilities of the physician.

4 No. 06-1034

discriminated against him by declining his application for

active staff membership. The first count alleged that Theda

Clark had a discriminatory motive or purpose based on

Dr. Paul’s race in modifying its contract with him in

violation of 42 U.S.C. § 1981. The second count alleged that

the modification of Dr. Paul’s staff membership was a

breach of the parties’ contract according to Theda Clark’s

bylaws. Dr. Paul filed an amended complaint on May 18,

2005, adding an additional civil rights violation under

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d).

In this count, Dr. Paul claimed that Theda Clark violated

the Civil Rights Act by denying his application for active

staff membership because Theda Clark receives Medicare

and Medicaid funding and discriminatory actions are not

tolerated in an institution that receives federal funding.

On August 29, 2005, Theda Clark moved for summary

judgment, and on December 20, 2005, the district court

granted the defendant’s motion on all three causes of action.

The district court found that Dr. Paul failed to establish

that (1) he was qualified for active staff membership, (2)

Theda Clark’s basis for declining his application for active

staff membership was pretextual, and (3) Theda Clark’s

bylaws entitled him to active staff membership. This timely

appeal followed.

II. Discussion

We review the district court’s grant of motion for sum-

mary judgment de novo. Sartor v. Spherion Corp., 388 F.3d

275, 277 (7th Cir. 2004). Summary judgment is proper if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with any affidavits, show that

there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. FED. R. CIV. P.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party

meets this burden, the nonmoving party must then go

No. 06-1034 5

beyond the pleadings and set forth specific facts showing

that there is a genuine issue for trial. FED. R. CIV. P. 56(e).

This court must draw every justifiable inference from the

record in the light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986). The existence of merely a

scintilla of evidence in support of the nonmoving party’s

position is insufficient to defeat a summary judgment

motion. Id. at 252.

A. Dr. Paul’s § 1981 and Title VI Claims

Dr. Paul contends that he provided sufficient evidence of

racial discrimination to demonstrate a cause of action under

the Civil Rights laws. The framework governing liability

under Title VII also applies to section 1981 claims. Gonza-

lez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1035

(7th Cir. 1998). Direct or indirect evidence can be used to

prove racial discrimination in an employment setting. Rush

v. McDonald’s Corp., 966 F.2d 1104, 1113 (7th Cir. 1992).

Because Dr. Paul did not present direct evidence of racial

discrimination, the district court used the burden shifting

formula established by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817,

36 L.Ed.2d 668 (1973), to determine whether discrimination

occurred.

In order to establish a prima facie case of discrimination,

Dr. Paul must present by a preponderance of the evidence

that: (1) he was a member of a protected class; (2) he was

qualified for the job in question; (3) he suffered an adverse

employment action; and (4) the defendant treated other

similarly-situated employees who were not members of the

class more favorably. McDonnell Douglas, 411 U.S. at 802;

Gonzalez, 133 F.3d at 1032. If a prima facie case is estab-

lished, the burden shifts to the defendant to produce

evidence of a legitimate, non-discriminatory reason for its

6 No. 06-1034

decision. Id. If the defendant produces such a reason, the

plaintiff has an opportunity to show that the articulated

explanation was in fact pretext. McDonnell Douglas, 411

U.S. at 804; Gonzalez, 133 F.3d at 1032. A pretext is a “lie,

specifically a phony reason for some action.” Jackson v. E.J.

Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999).

Dr. Paul failed to present sufficient evidence to satisfy the

second and fourth prongs of the McDonnell Douglas test.

First, Dr. Paul did not establish that he was qualified for

active staff membership at Theda Clark. Although both

parties agree that Dr. Paul is a non-board-certified neuro-

surgeon, Dr. Paul argues that Theda Clark does not

actually require board certification for active neurosur-

geons. Theda Clark’s bylaws state that physicians ap-

pointed to active staff membership must be available to

provide “specialty care coverage for the emergency depart-

ment.” Additionally, in order to maintain its Level II

trauma center designation, Theda Clark must follow the

requirements listed in the American College of Surgeons’

Gold Book. The Gold Book states:

[b]asic to qualification for trauma care for any surgeon

is board certification in a surgical specialty recognized

by the American Board of Medical Specialties. . . . The

board certification requirement applies to the general

surgeon, orthopedic surgeon, and neurosurgeon. These

requirements are also essential for the emergency

medical physicians in Level I and II centers and desir-

able for those in Levels III and IV. These requirements

are desirable for anesthesiologists.

Theda Clark’s bylaws require its active staff members to

participate in trauma call coverage and neurosurgeons

providing call coverage for Level II trauma centers

are required to be board certified. Thus, Dr. Paul does not

qualify for active staff membership at Theda Clark.

Second, Dr. Paul failed to produce sufficient evidence that

Theda Clark treated other non-board-certified neurosur-

No. 06-1034 7

geons who were not of Asian-Indian descent more favorably.

In fact, all other neurosurgeons with active staff member-

ship at Theda Clark are board certified. The only non-

board-certified physician with active staff membership that

Dr. Paul has identified is Dr. Behrens, an anesthesiologist.5

The Gold Book states that board certification is “essential”

for neurosurgeons but only “desirable” for anesthesiologists.

Therefore, anesthesiologists are not required to be board

certified to provide trauma call coverage at Theda Clark.

This is not the case for neurosurgeons. Because Dr. Paul

failed to produce any evidence that he was treated differ-

ently than other neurosurgeons, he did not establish a

prima facie case of discrimination.

Even had Dr. Paul established a prima facie case of

discrimination with respect to Theda Clark’s decision not to

extend his active staff membership, there is not enough

evidence of pretext in the record to survive summary

judgment. Dr. Paul claims that Theda Clark’s reason for

denying him active staff membership—lack of board

certification—was pretextual and that Theda Clark’s actual

intent was to discriminate against him based upon his race.

In support of his position, Dr. Paul first testified that he

requested surgery time in March of 2003, and Theda Clark

failed to respond to his request. Dr. Paul insists that he did

not receive the surgical time because of his ethnic, religious

and/or cultural beliefs. However, Dr. Paul never followed up

with Theda Clark to determine why they had not responded

to his request. Additionally, Dr. Paul testified that he

applied for privileges at Theda Clark in 1986, but he did not

5

Despite the fact that Dr. Ullrich is a board certified orthopedic

surgeon, Dr. Paul also identified Dr. Ullrich, claiming that Dr.

Ullrich was treated differently because he was not required to

provide call coverage at Theda Clark. However, the record reflects

that Dr. Ullrich does provide emergency call coverage in orthope-

dic spine trauma.

8 No. 06-1034

receive privileges until 1992. Once again, Dr. Paul assumes

that Theda Clark delayed his application because of his

ethnicity.

In another attempt to show pretext, Dr. Paul claims that

in 1994 or 1995 a patient told him that a Theda Clark

physician, since retired, told the patient that “Dr. Paul

should go back from [where] he has come from, he should

take his camel back there.” There is no evidence that this

retired doctor was involved in or at all influenced Theda

Clark’s decision to deny Dr. Paul active staff membership.

The statement is irrelevant. See Rozskowiak v. Village of

Arlington Heights, 415 F.3d 608, 611-13 (7th Cir. 2005)

(concluding that plaintiff’s supervisor’s comment that

plaintiff “would probably be losing [his] job because [he]

was a stupid Polack,” was unrelated to the plaintiff’s

termination, and the plaintiff was terminated for legiti-

mate, job-related reasons). Theda Clark’s requirement that

a neurosurgeon with active staff membership be board

certified is a legitimate and non-discriminatory reason for

denying Dr. Paul active status. Because Dr. Paul fails to

discredit this reason, the district court did not err when it

granted summary judgment in favor of Theda Clark on the

§ 1981 and Title VI claims.

B. Dr. Paul’s Breach of Contract Claim

Dr. Paul argues that Theda Clark violated its bylaws by

denying him active staff membership. Dr. Paul cites

Seitzinger v. Community Health Network, 676 N.W.2d 426,

433 (Wis. 2004) and Bass v. Ambrosius, 520 N.W.2d 625,

627 (Wis. Ct. App. 1994), in support of the general proposi-

tion that a hospital’s bylaws can constitute a binding

contract between the hospital and its staff. The Wisconsin

Supreme Court also held that hospital bylaws are reviewed

under a deferential standard and a hospital’s interpretation

of its bylaws should stand if reasonable. Seitzinger, 676

N.W.2d at 433.

No. 06-1034 9

Even if Theda Clark’s bylaws create a contract between

Theda Clark and Dr. Paul, there is no breach of contract.

Theda Clark’s bylaws state:

[t]he active medical staff shall consist of physicians,

dentists, and podiatrists who regularly admit patients

to the hospital or provide services to hospital patients,

who are located closely enough to the hospital to

provide continuous care to their patients, and who

assume all the functions and responsibilities of appoint-

ment to the active medical staff including where

appropriate, service on medical staff and department

committees, specialty care coverage for the emergency

department and consultation assignments.

The bylaws clearly state that an active staff member

assumes responsibilities that include providing “specialty

care coverage for the emergency department.” Because

Theda Clark is a Level II trauma center, all neurosurgeons

that provide trauma call coverage must be board certified.

Dr. Paul argues that he did not apply to become a member

of the trauma team and therefore was not required to be

board certified.6 However, the bylaws do not state that an

active staff member is allowed to opt out of trauma cover-

age. On the contrary, if Dr. Paul was appointed to active

staff membership, he would be required to provide “spe-

cialty care coverage” according to Theda Clark’s bylaws.

Therefore, the district court did not err when it granted

summary judgment on Dr. Paul’s breach of contract claim.

6

Dr. Paul also argues that Theda Clark’s bylaws include a

“grandfather clause” that exempts him from the requirement of

board certification. However, the clause is located under Article

VI of the bylaws, which is entitled “clinical privileges” and

pertains to clinical privileges rather than staff membership. This

clause entitles Dr. Paul to retain his clinical privileges but does

not entitle him to active staff membership.

10 No. 06-1034

III. Conclusion

For the reasons stated above, we AFFIRM the district

court’s grant of summary judgment.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-13-06