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GOUSSIS v. KIMBALL

February 18, 1993

ONOUFRIOUS SPYROS GOUSSIS, M.D., Plaintiff,
v.
HARRY R. KIMBALL, M.D., JOHN J. NORCINI, JR., PH.D., and THE AMERICAN BOARD OF INTERNAL MEDICINE, Defendants.



The opinion of the court was delivered by: EDUARDO C. ROBRENO

MEMORANDUM

 Robreno, J.

 February 18, 1993

 I. Introduction

 Plaintiff is a foreign born and trained physician. This case arises out of Plaintiff's failure to pass on four separate occasions the American Board of Internal Medicine's ("ABIM") qualifying examination for the medical subspecialty certification of endocrinology and metabolism.

 Plaintiff claims that Defendants invidiously discriminated against him because of his foreign birth and foreign medical training, resulting in the deprivation of Plaintiff's property without due process and equal protection. The factual core of Plaintiff's claim is that the examinations which Plaintiff took and failed were prepared and graded by Defendants with the intent to minimize the scores obtained by foreign medical graduates, including Plaintiff. Its legal essence is that Defendants' conduct was undertaken under color of law.

 Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. *fn1" For the reasons set forth below, I will grant the motion for summary judgment.

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party need not produce evidence to disprove the opponent's claim but does carry the burden to demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A fact is material if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure ยง 2725, pp. 93-95 (1983)). In turn, the non-moving party must offer specific facts contradicting the facts averred by the movant which indicate that there is a genuine issue for trial. Lujan v. National Wildlife Federation, 497 U.S. 871, , 111 L. Ed. 2d 695, 110 S. Ct. 3177, (1990). The non-moving party "cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). If there are no genuine issues as to material facts, the court must then determine whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

 III. Discussion

 A. Background

 Plaintiff Onoufrious Spyros Goussis, M.D., ("Plaintiff") was born in Corfu, Greece, on April 4, 1948. *fn2" He attended undergraduate school and medical school at the University of Athens, receiving his medical degree in 1972. From 1972 to 1975, he pursued a residency at King Paul Hospital, in Athens, Greece. Plaintiff came to the United States on a student visa on January 30, 1975. He completed his first year residency in internal medicine at Union Memorial Hospital in Baltimore, Maryland in 1976, his second year residency at West Virginia University Medical School in 1977, and his third year residency at the Cooper Medical Center, Camden, New Jersey, in 1979.

 After completion of his residency in internal medicine, Plaintiff undertook a two year fellowship in endocrinology at the University Hospital, Jacksonville, Florida. Subsequent to the completion of that fellowship, Plaintiff completed a one year fellowship in endocrinology at the University of California, Los Angeles School of Medicine. In 1983, Plaintiff entered into the private practice of endocrinology in the Long Island, New York area. Plaintiff also taught medical resident students and medical students at the Nassau County Medical Center. Since that time, he has continued to pursue research and writing in the endocrinology area, contributing to or publishing a number of papers as senior author.


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