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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14275
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cv-01638-SCB-TBM
ABRAHAM I. AWAAD,
Plaintiff-Counter
Defendant-Appellant,
versus
LARGO MEDICAL CENTER, INC.,
a Florida corporation
d.b.a. Largo Medical Center,
Defendants-Counter
Claimant-Appellee,
NON-PARTY PHYSICIANS,
Third Party Plaintiff.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 2, 2014)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
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PER CURIAM:
Abraham I. Awaad appeals the district court’s grant of summary judgment to
defendant Largo Medical Center, Inc. (“LMC”), in his case alleging racial
discrimination, in violation of 42 U.S.C. § 1981. Awaad, a Palestinian male, held
medical staff privileges with LMC as a nephrologist with a specialty in electrolyte
disorders. Following the death of one of Awaad’s patients, LMC initiated a peer
review process of Awaad’s conduct in that case and others. LMC’s Medical Care
Evaluation Committee (“MCEC”) and its medical executive committee (“MEC”)
required Awaad to enroll in the Physician Recovery Network (“PRN”) program,
and attend a post-graduate course in fluid and electrolyte management. Awaad
never completed these actions, and had his medical staff privileges revoked. The
district court granted summary judgment to LMC, concluding that Awaad had
failed to identify any suitable comparators, and failed to show that LMC’s asserted
legitimate, nondiscriminatory reason for firing him was false. On appeal, Awaad
argues that: (1) the district court improperly ignored his identified comparators; (2)
even if there were no suitable comparators, there was sufficient circumstantial
evidence from which a jury could infer a discriminatory intent; and (3) LMC’s
alleged nondiscriminatory reason for revoking his medical staff privileges was
pretextual. After careful review, we affirm.
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We review de novo a district court’s grant of summary judgment. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is
proper if the evidence shows “that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
The evidence and factual inferences from the evidence are construed favorably to
the party opposing summary judgment. Reynolds v. Bridgestone/Firestone, Inc.,
989 F.2d 465, 469 (11th Cir. 1993).
Under 42 U.S.C. § 1981, discrimination in the right to make and enforce
contracts on the basis of ethnicity or ancestry is prohibited. Saint Francis Coll. v.
Al-Khazraji, 481 U.S. 604, 613 (1987). Both section 1981 and Title VII have the
same requirements of proof and use the same analytical framework. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Moreover, the
McDonnell Douglas 1 standard for a prima facie case is applicable in employment
discrimination suits brought under 42 U.S.C. § 1981. Id. at 1330-31.
When, as here, a plaintiff relies on circumstantial evidence to prove
discrimination, we apply the burden-shifting approach articulated in McDonnell
Douglas. Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Under the
McDonnell Douglas framework, a plaintiff has the initial burden to establish a
prima facie case of discrimination, which creates a rebuttable presumption that the
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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employer discriminated against the plaintiff. EEOC v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1272 (11th Cir. 2002). To establish a prima facie case of racial
discrimination on the basis of disparate treatment, the plaintiff must show that: (1)
he is a member of a protected class; (2) he was subjected to an adverse
employment action; (3) his employer treated similarly-situated employees more
favorably; and (4) he was qualified to do the job. Maniccia v. Brown, 171 F.3d
1364, 1368 (11th Cir. 1999). When a plaintiff alleges discriminatory discipline,
the quantity and quality of the comparator's misconduct must be nearly identical to
the plaintiff’s. Id. Throughout the analysis, the ultimate burden of proving that the
employer intentionally discriminated against the plaintiff on an unlawful basis
remains at all times with the plaintiff. Joe’s Stone Crabs, 296 F.3d at 1273.
Under McDonnell Douglas, if a plaintiff makes the requisite showing of a
prima facie case, and the employer articulates a legitimate, nondiscriminatory
reason for its actions, then the plaintiff must offer evidence that the alleged reason
of the employer is a pretext for illegal discrimination. 411 U.S. at 802-04. To
establish pretext, the plaintiff must show that: (1) the offered reason was false; and
(2) the decision was motivated by some illegal purpose. Springer v. Convergys
Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007). A plaintiff
may not “recast an employer’s proffered nondiscriminatory reasons or substitute
his business judgment for that of the employer. Provided that the proffered reason
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is one that might motivate a reasonable employer, an employee must meet that
reason head on and rebut it . . . .” Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000) (en banc). Furthermore, federal courts do not sit “as a super-
personnel department that reexamines an entity’s business decisions . . . .” Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (internal quotation
omitted). It is not the role of the examining court to second guess the wisdom of
the reasoning, the court must only determine if the reasons given were merely a
cover for a discriminatory intent. Brown v. American Honda Motor Co., 939 F.2d
946, 951 (11th Cir. 1991).
We have cautioned that establishing the elements of the McDonnell Douglas
framework “is not, and never was intended to be, the sine qua non for a plaintiff to
survive a summary judgment motion in an employment discrimination case,” and
that a plaintiff may also defeat a summary judgment motion by presenting “a
convincing mosaic” of circumstantial evidence that “raises a reasonable inference
that the employer discriminated against [him].” Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). As long as the circumstantial evidence
raises a reasonable inference that the employer discriminated against the plaintiff,
summary judgment is improper. Id.
Here, even if we were to assume that Awaad has made a prima facie case,
LMC has offered a legitimate, nondiscriminatory reason for revoking Awaad’s
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medical staff privileges -- that he failed to complete the MEC’s requirements.
Awaad has not shown that there is a genuine dispute of fact suggesting that this
reason was pretextual because, among other things, Awaad has not shown the
falsity of the proffered reason. Indeed, Awaad concedes that he did not complete
the MEC’s requirements that he enroll in the PRN and attend a post-graduate
course in fluid and electrolyte management. Further, the reason is one that a
reasonable employer might rely upon to revoke a physician’s medical staff
privileges, and Awaad has not met that reason head on and rebutted it. See
Chapman, 229 F.3d at 1030.
Awaad has also failed to present a genuine issue of material fact indicating
that there is “a convincing mosaic” of circumstantial evidence raising a reasonable
inference that LMC discriminated against him. See Smith, 644 F.3d at 1328. The
most probative evidence stems from an incident in which Dr. Larry Feinman
reprimanded Awaad for telling a patient’s family that a nurse was shortening the
dialysis treatment time. According to the record, Feinman instructed Awaad to
refrain from making such comments, suggesting that it could make Awaad and
LMC vulnerable to a lawsuit, and told him that he was practicing medicine “the
Palestinian way.” On this record, this one comment from one doctor -- given the
myriad decisionmakers involved in Awaad’s revocation of privileges who Awaad
did not accuse of discriminatory animus, as well as Awaad’s failure to link the
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revocation with any such animus -- is not sufficient to create a genuine dispute of
fact about “a convincing mosaic of circumstantial evidence that would allow a jury
to infer intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1328
(emphasis added; footnote and international quotation omitted).
In short, Awaad has failed to show that there is a genuine issue of material
fact as to whether LMC discriminated against him. Accordingly, we affirm.
AFFIRMED.
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