prima facie case or as a legitimate, nondiscriminatory reason for defendant's action as to which plaintiff has not and cannot produce any evidence of pretext, we cannot agree that the record clearly establishes that plaintiff was not qualified to practice his specialty.
It is true that defendant has produced evidence that the residency program at St. Luke's was inadequate at the time plaintiff was being trained there, (See, e.g., Exh. E to Defendant's Motion for Summary Judgment at 46-50), which could support the inference that plaintiff was not qualified for staff privileges despite having successfully completed his training. The asserted deficiencies in the residency program, however, did not prevent other doctors trained at St. Luke's from acquiring staff privileges there. In fact, according to Dr. Skutches, defendant's witness, plaintiff was the only resident who successfully completed the residency program at St. Luke's and was then denied staff privileges there. (Id. at 45). Moreover, plaintiff's purported lack of qualifications did not prevent Dr. Skutches, the doctor in charge of the residency program at the time plaintiff completed it, from offering to recommend him for staff privileges anywhere else. (Id., at 54-57).
There are at least two possible inferences from this evidence: plaintiff was, in fact, qualified for staff privileges at any hospital, including St. Luke's, or he was unqualified for privileges anywhere, but Dr. Skutches was completely unconcerned about his lack of qualifications as long as he did not practice at St. Luke's. The deposition testimony of Dr. Skutches undercuts the inference that plaintiff was denied staff privileges because he had been inadequately trained at St. Luke's. Dr. Skutches could not or would not state that any resident who had successfully completed the program at St. Luke's was not qualified to practice the specialty for which he was trained.
Similarly, the testimony also belies the contention that plaintiff was denied staff privileges because of his own deficiencies in basic knowledge. Dr. Skutches testified that another resident, whom he knew had scored poorly on a national examination, as had the plaintiff, was subsequently granted staff privileges. (Id., at 38). Finally, even assuming that plaintiff's lack of basic knowledge and poor test performance was the motivating factor behind the denial of staff privileges, we are left with the unexplained fact that he successfully completed his residency, and, in fact, was chief resident in his final year in training at St. Luke's.
On a motion for summary judgment, the Court is required to draw all inferences in favor of the nonmoving party. Jackson v. University of Pittsburgh. Applying that principal, we must conclude that defendant has not unequivocably established that plaintiff was not qualified for staff privileges and/or that his asserted lack of qualifications is an irrefutably legitimate reason for the denial of privileges. For purposes of this motion, we must assume that plaintiff was qualified for staff privileges and was refused them for another reason. It is for the factfinder to determine whether the plaintiff will succeed in proving that the true basis for defendant's action in denying him staff privileges was discrimination against him because of his national origin, as he claims.
Finally, we cannot agree with defendant's argument that the record contains no positive evidence of any discriminatory motive in the denial of staff privileges to the plaintiff. Dr. Skutches' testimony permits an inference that he does not favor non-American doctors, particularly if they were not educated in American institutions. He testified that he would prefer an American graduate of an American institution. (Id. at 27). He also testified that American students educated in Caribbean medical schools had been admitted to St. Luke's residency program after he became director of the program, despite his belief that the accrediting body responsible for reviewing St. Luke's program had a preference for doctors educated in American institutions. (Id. at 28, 31). It is possible to infer that while Dr. Skutches, on behalf of St. Luke's, ostensibly bases his decisions as to doctors' qualifications on the place of their education, the truly determinative factor is nationality. Thus, it is possible to infer that St. Luke's, through Dr. Skutches, discriminated against the plaintiff on the basis of his nationality. That inference is strengthened by Dr. Skutches's testimony that he was personally opposed to plaintiff's application. (Id. at 46).
In summary, we conclude that there are several issues of material fact which preclude summary judgment in this case. There are two separate issues relating to plaintiff's employment status which require a jury determination: first, whether, as an applicant for staff privileges he should be considered a potential employee or an independent contractor; second, whether the expectation of receiving staff privileges was a term, condition or privilege of employment as a resident at St. Luke's. If the fact adduced at trial result in a resolution in plaintiff's favor on either of those theories of Title VII protection, there are additional factual issues relating to plaintiff's qualifications as a practitioner and the reason or reasons why he was not granted staff privileges at St. Luke's. Consequently, defendant's motion must be denied.