IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10178
PAMELA JEFFREY, MD;
PAULA LEWIS, MD,
Plaintiffs-Appellants,
versus
COLUMBIA MEDICAL CENTER AT
LANCASTER SUBSIDIARY LP,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CV-2246-H)
August 15, 2002
Before GARWOOD, DeMOSS and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:*
Plaintiffs-appellants Pamela Jeffrey (Dr. Jeffrey) and Paula Lewis
(Dr. Lewis) brought this lawsuit against defendant Columbia Medical
Center at Lancaster Subsidiary LP (the hospital), alleging that the
*
Pursuant to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
hospital discriminated against them in violation of 42 U.S.C. § 1981.1
The district court, after time for discovery, granted the hospital’s
motion for summary judgment. The plaintiffs appeal the summary judgment
in favor of the hospital. We affirm.
Facts and Proceedings Below
Dr. Jeffrey and Dr. Lewis are both board certified
anesthesiologists. They are both African-American. Dr. Jeffrey
joined the staff at the hospital (which was then called Midway Park
Hospital) in 1990. Dr. Lewis also joined the hospital staff in 1990.
They provided anesthesia services to the hospital until 1997. In
1994, Drs. Jeffrey and Lewis, along with Dr. George Jones, formed
Triad Anesthesia Group, PLLC (Triad), a professional limited
liability company. At all relevant times, Drs. Jeffrey and Lewis
have been owners of Triad. (Dr. Jones is no longer a Triad owner and
is not involved in this suit.)
On January 1, 1997, Ernest Lynch (Lynch) became Chief Executive
Officer of the hospital. His duties included oversight of the
hospital’s day to day operations and he was authorized to negotiate
and enter into exclusive contracts on behalf of the hospital. In
August 1997, Lynch, on behalf of the hospital, entered into a
contract with North Texas Anesthesia Consultants (NTAC), an outside
group, for NTAC to provide the hospital with anesthesia “call
1
The plaintiffs’ complaint also stated a state law claim for
intentional infliction of emotional distress. They do not press that
claim on appeal.
2
coverage” from August 16, 1997 through September 3, 1997.2 Under the
contract, NTAC was paid $1,500 per twelve hour period for providing
the call coverage. Prior to this time, the hospital did not pay for
call coverage. Coverage was provided by staff anesthesiologists
(including the plaintiffs), who made themselves available for
emergency and obstetric procedures on a rotating basis. The staff
anesthesiologists billed for any services rendered, but were not paid
for merely making themselves available to take emergency calls.
On September 7, 1997, after getting word through informal
channels of the arrangement with NTAC, Dr. Jeffrey wrote to Lynch
inquiring about the possibility of a similar arrangement for Triad.3
Lynch agreed to pay Triad $1,000 per twelve hour period to provide
call coverage during September and October 1997. Dr. Ariba Quansah,
an anesthesiologist on the staff of the hospital, was also paid for
call coverage at a $1,000 rate during September and October 1997.4
Dr. Quansah apparently is an African-American.
On August 1, 1997, Lynch informed Triad that the hospital was
2
Providing “call coverage” meant that NTAC would make
anesthesiologists available on short notice to provide anesthesia
services for unscheduled procedures such as emergency surgeries or
deliveries. In the case of a scheduled surgery, a surgeon would request
an anesthesiologist in advance.
3
As we explain below, the content of Dr. Jeffrey’s letter
indicates that she did not entirely understand the details of the
arrangement with Triad.
4
It appears from the record that Dr. Quansah was actually only
paid $1,000 per twenty-four hour period, whereas Triad was paid $1,000
per twelve hour period (or $2,000 per twenty-four hour period).
3
considering entering an exclusive arrangement for anesthesia services
and that Triad could submit a proposal. Lynch also solicited
proposals from anesthesiology groups that did not practice at the
hospital. Lynch received proposals from Triad, DFW Anesthesia (DFW),
and Anesthesia Consultants. Triad proposed to provide call coverage
for a stipend of $20,000 per month. DFW proposed a $35,000 monthly
stipend. And Anesthesia Consultants proposed a $40,000 monthly
stipend. Lynch awarded the exclusive contract to DFW and the
arrangement was effective November 1, 1997. On October 2, 1997,
Lynch sent letters to Drs. Jeffrey and Lewis informing them that, as
of November 1, they would no longer be able to exercise their
clinical privileges in the hospital, except for secondary
consultations, because DFW would become the hospital’s exclusive
provider of anesthesia services as of that date.5
The plaintiffs contend that the hospital’s actions in paying
NTAC for call coverage at a higher rate than Triad was paid for the
same coverage and in awarding the exclusive contract to DFW rather
than to Triad, which had submitted the lowest bid, were motivated by
racially discriminatory animus. In support of its summary judgment
motion, the hospital offered evidence, including copies of
correspondence and Lynch’s affidavit and deposition testimony, of
legitimate reasons for its actions. Lynch testified that he entered
5
The uncontradicted evidence is that the same letter was sent to
all of the anesthesiologists who were then on staff at the hospital,
including several who were white.
4
into the three week contract with NTAC because, in August 1997, he
became aware of significant deficiencies in the hospital’s existing
call coverage system and perceived an urgent need to enact a
temporary solution until the problems were resolved. Lynch stated
that, when the NTAC arrangement ended, he arranged for Triad and Dr.
Quansah to provide the call coverage and paid them at the $1,000 rate
only because they were willing to provide the coverage at that rate.
Lynch explained that he also felt the lower rate was justified
because the plaintiffs and Dr. Quansah were already on staff at the
hospital and received income when surgeons at the hospital requested
their services for elective surgeries. Regarding the DFW contract,
Lynch testified that a primary factor weighing in DFW’s favor was its
size. Of the three groups submitting proposals, DFW was by far the
largest with a total of seventy-seven physicians. According to his
testimony, Lynch perceived that a group the size of DFW would be
better able to meet the hospital’s needs than a smaller group. On or
about September 10, 1997, Dr. Jeffrey had informed Lynch that Triad
had employed a new physician, Dr. Kevin Thomas, and that Dr. Jeffrey
had a medical condition requiring treatment. Thus, at the time Lynch
was making his decision, he knew that Triad consisted of only three
physicians, one of whom was new and another of whom had a medical
condition.
The district court held that the plaintiffs did not have
standing to assert the section 1981 claims because the contracts at
5
issue related to Triad as an entity, rather than to the plaintiffs as
individuals. The district court further ruled that, even if the
plaintiffs did have standing, they had produced no evidence to rebut
the hospital’s proof of legitimate, non-discriminatory reasons for
its decisions. The plaintiffs challenge both of these determinations
on appeal.
Discussion
I. Standard of Review
We review a district court’s grant of summary judgment de
novo, applying the same standard as that employed by the district
court. Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th
Cir. 1996). Summary judgment is proper if, after adequate
opportunity for discovery, the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits filed in support of the motion, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511
(1986). The moving party bears the initial responsibility of
stating the basis for its motion and identifying the portions of
the summary judgment record which it believes demonstrate the
absence of a genuine issue of material fact, but is not obligated
to support the motion with material negating the opponent’s
6
claim. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553, 2554
(1986). When a proper motion is made, summary judgment should be
granted if the nonmovant fails to make a sufficient showing, by
appropriate summary judgment evidence, to establish the existence
of an essential element of his case on which he will bear the
burden of proof at trial. Id. at 2552. Summary judgment is
proper where the summary judgment evidence does not suffice to
support a verdict in favor of the nonmovant. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 - 76 (5th Cir. 1994). “When
evaluating the summary judgment evidence, we resolve factual
controversies in favor of the nonmoving party, but only when
there is an actual controversy; that is, when both parties have
submitted evidence of contradictory facts.” Guillory, 95 F.3d at
1326.
II. Standing
42 U.S.C. § 1981 provides, in pertinent part:
“(a) Statement of equal rights. All persons within the
jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens . . . .
(b) ‘Make and enforce contracts’ defined. For purposes
of this section, the term ‘make and enforce contracts’
includes the making, performance, modification, and
termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the
contractual relationship.
(c) Protection against impairment. The rights protected
by this section are protected against impairment by
nongovernmental discrimination and impairment under
color of State law.”
7
Thus, as relevant to this case, section 1981 proscribes
racial discrimination that concerns the making or enforcing of a
contract. See Bellows v. Amoco Oil, 118 F.3d 268, 274 (5th Cir.
1997). The essence of the plaintiffs’ claim is that there was a
racially discriminatory motivation behind the hospital’s
decisions to pay Triad less for call coverage than it had paid
NTAC and to award DFW the exclusive contract rather than Triad.6
The district court correctly applied this court’s decision in
Bellows to find that the plaintiffs did not have standing to
assert Triad’s legal rights under section 1981.
Standing is a jurisdictional question, and thus a question
of law that is reviewed de novo by this court. See James v. City
of Dallas, 254 F.3d 551, 562 (5th Cir. 2001). To establish
standing, a litigant must demonstrate that he has suffered an injury
in fact. Havens Realty Corp. v. Coleman, 102 S.Ct. 1114, 1121
6
We note that the nature of the plaintiffs’ claims appear to have
evolved somewhat from those articulated in the complaint. The complaint
alleged that the plaintiffs’ medical clinical privileges were terminated
for racially discriminatory reasons and that the terminations denied the
plaintiffs due process as guaranteed by the hospital’s by-laws. It
further alleged that, for racially discriminatory reasons, the
plaintiffs were denied the same opportunity to submit an exclusive
anesthesia services proposal that white anesthesiologists enjoyed. As
developed during discovery in the district court, and as pressed by the
plaintiffs on appeal, the essence of their claim now is that paying NTAC
at the $1,500 rate while paying Triad at the $1,000 rate was disparate
treatment and that Lynch’s choice of DFW over Triad for the exclusive
contract was racially motivated. In their arguments to this court, the
plaintiffs do not address the due process allegation or direct our
attention to the hospital by-laws and do not contend that they were
denied an adequate opportunity to submit a proposal for the exclusive
contract.
8
(1982). A civil rights plaintiff shareholder may not establish
standing merely by alleging injuries suffered by the corporation
alone. Gregory v. Mitchell, 634 F.2d 199, 292 (5th Cir. 1981). In
Bellows, the plaintiff individual, an African-American, was the
majority owner and president of Phillips Industrial Constructors,
Inc. (PICI). He alleged that defendant Amoco Oil Company, motivated
by racial animus, had modified, changed, or terminated contracts with
PICI in violation of section 1981. Relying on our previous decision
in Searcy v. Houston Light & Power Co., 907 F.2d 562 (5th Cir.),
cert. denied, 111 S. Ct. 438 (1990), we explained that “because
Bellow’s claim against Amoco is merely derivative of PICI’s cause of
action, Bellow has no individual section 1981 claim against Amoco.”
Bellows, 118 F.3d at 276.7
This case is analogous to Bellows and Searcy. The plaintiffs
owned and ran Triad, which was a registered professional limited
liability company. Cf. Bellows, 118 F.3d at 270 (plaintiff was
majority owner and president of corporation); Searcy, 907 F.2d at 563
(plaintiff was founder and president of corporation). Triad, as an
entity, was paid for call coverage and Triad, as an entity, submitted
a proposal to provide anesthesia services exclusively. Cf. Bellows,
118 F.3d at 276 (essence of plaintiff’s claim was that Amoco
7
The plaintiff’s name in Bellows was Bellow. His name was
misspelled in the case caption and the error was never corrected.
Bellows, 118 F.3d at 270 n.1.
9
interfered with PICI’s contracts or PICI’s ability to contract with
Amoco); Searcy, 907 F.2d at 563 (plaintiff complained that defendants
refused to contract with corporation). Thus, it was Triad’s right to
make and enforce contracts that was allegedly infringed and Triad
that had a potential cause of action under section 1981. The
plaintiffs, as individuals, have no standing to assert Triad’s
claims. Bellows, 118 F.3d at 276 - 77; Searcy, 907 F.2d at 565.
The injuries that the plaintiffs allege – economic loss,
embarrassment and humiliation, and loss of professional reputation –
are derivative of Triad’s potential cause of action. The plaintiffs
argue that, at least, their embarrassment and humiliation and
professional reputation injuries are separate and distinct from any
injuries suffered by Triad.8 We rejected the same line of reasoning
in Bellows, wherein we explained “[a]lthough Bellow claimed that he
sustained emotional damages that were different from PICI’s economic
damages, his emotional damages result from the same violation that
gave rise to PICI’s economic damages -- Amoco’s alleged violation of
PICI’s right to contract.” Bellows, 118 F.3d at 277 n.27 (emphasis
added). Whether or not they suffered separate and distinct damages,
8
The hospital asserts that the plaintiffs may not properly raise
these non-economic injuries on appeal because, in the district court,
they did not argue loss of professional reputation and they alleged
embarrassment and humiliation only in connection with Dr. Lewis’s
intentional infliction of emotional distress claim, which has been
abandoned on appeal. We need not decide whether these issues are
properly before us because, as we explain, all of the alleged injuries
derive from the same alleged conduct.
10
the plaintiffs do not have individual claims for alleged violations
of Triad’s section 1981 rights. Id.
The plaintiffs argue that special considerations apply in the
context of a physician’s relationship with a hospital and urge this
court to adopt the holding of Gomez v. Alexian Bros. Hospital, 698
F.2d 1019 (9th Cir. 1983) (per curiam). In Gomez, the plaintiff
was a physician who owned a professional corporation for
providing emergency room services. The corporation was denied a
contract to operate the defendant hospital’s emergency room,
allegedly because the plaintiff and other physicians in his group
were Hispanic. The Ninth Circuit found that Gomez, as an
individual, had standing to assert a Title VII claim because he
had alleged personal and distinct injuries – the failure to award
the contract to his company deprived him of employment as
director of the hospital’s emergency room and caused him
humiliation and embarrassment. Id. at 1021. The court stated
that the same analysis applied to Gomez’s section 1981 claim. Id. at
1022.
To the extent that Gomez is inconsistent with our holding in
Bellows, Gomez does not state the law in this circuit. In Bellows,
we explained that “[t]he Amoco work that Bellow lost which
purportedly gave rise to Bellow's section 1981 claim was the
exact same Amoco work that PICI lost.” Bellows, 118 F.3d at 277.
In this case, any work that Drs. Jeffrey and Lewis lost was the exact
11
same work that Triad lost. The hospital entered an exclusive
agreement with DFW, meaning that only physicians affiliated with DFW
would be supplied with anesthesia service employment (except on a
secondary consultation basis). Had the hospital signed an exclusive
contract with Triad instead of DFW, then only physicians affiliated
with Triad would have received this work. The October 2, 1997
letters from Lynch to the plaintiffs did not terminate the
plaintiffs’ clinical privileges to practice medicine at the hospital.
The letters merely informed the plaintiffs that they would not be
able to exercise those privileges (except on a secondary consultation
basis) while DFW had an exclusive arrangement with the hospital. In
other words, the plaintiffs were informed that they would be
receiving no more first consultation work from the hospital because
that work would all go to physicians in the DFW group. The
plaintiffs’ clinical privileges were eventually terminated after a
period of inactivity. But we are aware of no evidence indicating
that the hospital would have refused to permit the plaintiffs to
continue exercising their clinical privileges if they had chosen to
affiliate with DFW. As far as the evidence indicates, these
plaintiffs lost work only because Triad lost the contract. The fact
that the owners of Triad are physicians with clinical privileges at
the defendant hospital does not provide a principled reason to carve
12
out an exception to our section 1981 standing requirements.9
We conclude that the district court correctly held that the
plaintiffs did not have standing to assert Triad’s section 1981
claims. Furthermore, as we now explain, even if these plaintiffs did
have standing, we agree with the district court’s determination that
they did not produce sufficient evidence of discrimination to
withstand summary judgment.
II. Sufficiency of Evidence
“To prevail under section 1981, the plaintiff must
prove a prima facie case of intentional discrimination.
The plaintiff may establish a prima facie case by
direct evidence or, more commonly, by circumstantial
evidence of discriminatory motive. To establish a
section 1981 claim, the plaintiff must show that (1) he
or she is a member of a racial minority; (2) the
defendant had an intent to discriminate on the basis of
race; and (3) the discrimination concerned one or more
of the activities enumerated in the statute; in this
case, the making and enforcing of a contract.”
Bellows, 118 F.3d at 274 (internal citations omitted).
Assuming, arguendo, that these plaintiffs did have standing to
assert a section 1981 claim, the first and third prongs of such a
claim are clearly satisfied. Thus, the issue to be decided is
whether the plaintiffs made a sufficient showing on the second prong
– intentional discrimination based on race – to survive summary
9
We observe that the reasoning in Gomez did not rest on any special
considerations regarding the professional relationship between
physicians and hospitals. For the Gomez court, the inquiry was whether
the defendant’s conduct interfered with Gomez’s employment
opportunities, not whether there was anything special in the nature of
the physician-hospital relationship. See Gomez, 698 F.2d at 1021; see
also Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 273 (5th
Cir. 1988) (explaining Gomez).
13
judgment. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th
Cir. 1996) (plaintiff must prove racially discriminatory purpose of
act to show section 1981 violation). As is common in discrimination
cases, these plaintiffs attempt to prove this element with
circumstantial evidence.10 Claims of racial discrimination brought
under section 1981 are governed by the same evidentiary framework
that applies to claims of employment discrimination under Title VII.
LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir.
1996). This framework was established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973) and the
elements of the plaintiff’s prima facie case will necessarily vary
according to the nature of the claim and the facts of the case.
LaPierre, 86 F.3d at 448 & n.3.
As applied to the facts and nature of this case, the plaintiffs
could make a prima facie case of intentional discrimination by
showing (1) that they are members of a protected class (this is
10
The only arguably direct evidence of intentional discrimination
was the deposition testimony of a Dr. Bader (who was not an employee,
officer, or agent of the hospital) who stated that he told the
plaintiffs that he thought it was a possibility that Triad was denied
the exclusive contract because Drs. Jeffrey and Lewis were black. The
plaintiffs do not direct our attention to any evidence showing that Dr.
Bader had any basis or reason to know what motivated Lynch’s decision.
Dr. Bader testified specifically that Lynch had never told him that the
plaintiffs’ race played any role in the decision to award the contract
to DFW and Dr. Bader did not offer any explanation of his grounds for
believing that discrimination was a possibility. Without more, Dr.
Bader’s testimony concerning what he said he thought was a possibility
cannot be regarded as probative direct evidence of discriminatory intent
on the part of the hospital.
14
clearly satisfied), (2) that they sought and were qualified to
receive an available contract, (3) that their contract proposal was
rejected or that they received a contract on unfavorable terms, and
(4) that a similarly-situated person or entity that was not in a
protected class received a contract for which the plaintiffs were
rejected or received a similar contract on more favorable terms.
Cf., e.g., Raggs v. Mississippi Power & Light Co., No. 00-60874,
slip. op. 1361 at 1366 (5th Cir. Jan. 3, 2002) (elements in a
discriminatory discharge case); LaPierre, 86 F.3d at 448 (elements in
a discriminatory hiring case); Wallace, 80 F.3d at 1048 (plaintiff’s
section 1981 complaint alleged discrimination in refusing to renew
employment contract and in differential payment terms under the
original contract). For our analysis, we will assume arguendo, as
did the district court, that these plaintiffs established a prima
facie case of intentional discrimination.11
Once the plaintiff makes a prima facie case for
discrimination, an inference of discrimination arises and the
burden shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the action. LaPierre, 86 F.3d at 448.
“If the defendant comes forward with a reason which, if believed,
would support a finding that the challenged action was
11
We are not entirely satisfied that the plaintiffs have actually
done so. As one example of a possible deficiency, the plaintiffs do not
appear to have produced competent evidence to show that either NTAC or
DFW were white-owned entities.
15
nondiscriminatory, the inference [of discrimination] raised by
the plaintiff's prima facie case drops from the case.” Id. Once
the defendant has produced evidence of a legitimate, non-
discriminatory explanation, the plaintiff must produce evidence
which would support a finding that this explanation is
pretextual. Texas Dep’t of Community Affairs v. Burdine, 101
S.Ct. 1089, 1093 (1981); Russell v. McKinney Hosp. Venture, 235
F.3d 219, 222 (5th Cir. 2000). The defendant’s burden is only
one of production, not persuasion. Reeves v. Sanderson Plumbing
Products, Inc., 120 S.Ct. 2097, 2106 (2000). The plaintiff at
all times has the burden of persuasion. Id.
The hospital articulated legitimate, non-discriminatory reasons
for paying NTAC $1,500 per twelve hour period for call coverage for
three weeks and later paying Triad $1,000 per period for the same
coverage. Lynch provided affidavit and deposition testimony
reflecting the following: Lynch perceived that the hospital was
facing a crisis in call coverage for anesthesia services in August
1997. At that time, the hospital’s anesthesia service needs were
being served by Triad, another anesthesiology group called TX-AN, and
a few independent anesthesiologists (including Dr. Quansah). Prior
to mid-August 1997, call coverage was handled by rotating the
responsibility among these physicians and no one was compensated for
providing call coverage. (Of course, a physician who was actually
called in to provide anesthesia services for an unscheduled procedure
16
would be paid for that work.) Lynch believed that there was an
urgent need to bring in an outside entity to handle call coverage
while a permanent solution to that problem was found. NTAC was
available to provide the coverage but would accept nothing less than
the $1,500 stipend to do so. NTAC provided call coverage at the
$1,500 rate from August 16, 1997 through September 8. Triad and Dr.
Quansah agreed to provide call coverage on a rotating basis from
September 8, 1997 through October and they required only a $1,000
stipend to do so.12
Much of Lynch’s testimony was corroborated by copies of
correspondence and other documentation.13 There was also
uncontroverted evidence that Lynch and Dr. Huang, chairman of the
hospital’s surgery department, reprimanded three anesthesiologists,
including Dr. Lewis, for failure to respond to calls for anesthesia
services in July and August 1997. (The other two physicians who were
so reprimanded were white males associated with TX-AN.) Dr. Lewis
12
Lynch’s affidavit states that Triad and Dr. Quansah were each
paid $1,000 “per day” for call coverage, but invoices and canceled
checks included in the record indicate that Triad was paid $1,000 per
twelve hour period whereas Dr. Quansah was only paid $1,000 per twenty-
four hour period.
13
We note, however, that Dr. Jeffrey’s letter of September 7, 1997
did not contain a clear proposal for Triad to provide call coverage for
the $1,000 rate. Dr. Jeffrey wrote, “It has also been brought to our
attention that the Hospital has implemented a new payment plan for call
coverage services in the amount of $1,000 per person per call as is
evidenced by its agreement with the other anesthesia group that also
currently provide call coverage to the hospital.” (emphasis added).
This description indicates that Dr. Jeffrey did not have a correct
understanding of the $1,500 stipend arrangement with NTAC.
17
does not dispute that she failed to respond to a call in July 1997 or
that there was over a two hour wait before anyone at Triad responded
to the call. Dr. Lewis asserts that, at the time of the call, she
was on a planned vacation, that she had notified the hospital that
she would be unavailable, and that the call was only placed as the
result of a clerical error on the hospital’s part. For the purposes
of summary judgment, we assume that Dr. Lewis’s explanation is true.
But this incident and the two similar incidents that were proximate
in time still support Lynch’s perception that there was a need to
improve call coverage.
The burden thus shifted back to the plaintiffs to produce
adequate evidence that the hospital’s articulated reasons were
pretextual. The plaintiffs need not affirmatively show that racial
discrimination was the real reason for the different contract terms;
a jury may usually infer the ultimate fact of discrimination if it is
persuaded that the defendant’s explanation is false. See Reeves, 120
S.Ct. at 2108. But, to survive summary judgment, these plaintiffs
had to produce some evidence that Lynch’s explanation was false. See
id. This they did not do. On appeal, the plaintiffs rely simply on
assertions that a jury could find Lynch’s testimony to be false.
Such a finding would indeed be in the province of the jury, but the
plaintiffs do not satisfy their burden by their mere conclusory
assertion of it. The hospital satisfied its burden of production by
producing Lynch’s testimony. That evidentiary burden involves no
18
credibility assessments. Russell, 235 F.3d at 222.
The hospital also articulated legitimate, non-discriminatory
reasons for awarding the exclusive contract to DFW. Again, these
reasons were offered primarily through testimony by Lynch,
corroborated by correspondence and documents. Again, in determining
whether the hospital has satisfied its burden of production, we can
make no credibility assessments. Lynch explained that a primary
factor in the decision was DFW’s large size and the perception that
the seventy-seven physician group would be the most likely to have
the resources to meet the hospital’s continuing anesthesia services
needs. During the time he was making the decision about the
exclusive contract, Lynch was aware that Triad had only three
physicians, one of whom was new to the group and another of whom had
a medical condition requiring treatment. According to Lynch, four
DFW anesthesiologists had been awarded temporary privileges to
practice at the hospital as of October 29, 1997 and, later,
additional DFW physicians were awarded privileges and provided
anesthesia services under the exclusive contract.
Again, the plaintiffs do not point to any evidence tending to
prove that Lynch’s explanation was false. The plaintiffs again rely
primarily on a conclusory assertion that a jury could find that Lynch
was testifying falsely. The plaintiffs concede that DFW had
seventy-seven physicians in its group, but point out that DFW, which
also provided anesthesia services to other facilities, was not
19
obligated to put all seventy-seven physicians at the hospital’s
disposal at any one time. This fact, which, for summary judgment
purposes, we assume to be true, does not negate Lynch’s testimony
that he perceived DFW’s overall size and available resources gave DFW
an advantage in being able to meet the hospital’s anticipated needs.
The plaintiffs do not dispute that DFW already had four physicians
with clinical privileges prior to the effective date of the exclusive
arrangement and that this number was already greater than Triad’s
overall size. As discussed above, there was evidence that Triad
failed to respond promptly to a call for service in July 1997.
Although we accept as true Dr. Lewis’s testimony that the incident
resulted from the hospital’s clerical error, Triad’s delay in
responding supports Lynch’s contention that Triad’s small size was a
consideration. A seventy-seven physician group may be better able to
respond in such a situation than a three physician group.
There was also evidence that, in April 1997, Dr. Lewis was
reprimanded for failure to supervise one of Triad’s certified
registered nurse anaesthetists, in violation of hospital
policies. In her deposition testimony, Dr. Lewis admitted that
the violation had occurred. It would not have been unlawful for
the hospital to take such an incident into account when deciding
whether to award the contract to Triad. Cf. Price Waterhouse v.
Hopkins, 109 S.Ct. 1775, 1784 (1989) (Title VII prohibits
employers from taking certain factors into account when making
20
employment decisions, but does not limit other factors that may be
taken into account).
The plaintiffs, who at all times had the burden of persuasion,
were required to put forth at least some evidence that the hospital’s
explanation was unworthy of credence. See Reeves, 120 S.Ct. at 2108.
To satisfy their burden of proving intentional discrimination, at a
minimum, the plaintiffs had to combine their prima facie case with
sufficient evidence to find that the hospital’s explanation was
false. See id. at 2109. To survive summary judgment, the plaintiffs
had to show that there was an actual controversy over the veracity of
the hospital’s explanation by submitting evidence of contradictory
facts. See Guillory, 95 F.3d at 1326; cf. Russell, 235 F.3d at 225
(employment discrimination defendants were not entitled to judgment
as a matter of law when plaintiff had produced substantial evidence
countering defendants’ explanation).
Conclusion
These plaintiffs did not have standing to assert Triad’s section
1981 claims. Even if the plaintiffs did have standing, they did not
produce evidence sufficient to create genuine issues of material fact
and thus survive summary judgment. Accordingly, the judgment of the
district court in favor of the hospital is AFFIRMED.
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