The opinion of the court was delivered by: Joyner, District Judge.
Presently before the Court is the Motion for Summary Judgment of
Defendant, the American Board of Surgery (the "Board" or "Defendant"). In
this case, Plaintiff, Orlando A. Castillo ("Plaintiff" or "Castillo"),
brought claims against the Board under 42 U.S.C. § 2000e, et. seq.
("Title VII"), 42 U.S.C. § 1981, and the Pennsylvania Human Relations
Act ("PHRA"), 43 P.S. § 951, et. seq., claiming that he was
discriminated against because he failed the oral portion of his Board
Exams. For the reasons that follow, the Court will grant summary judgment
as to the Title VII and § 1981 claims and will dismiss the PHRA
claims without prejudice.
Plaintiffs national origin is Peruvian and his race is Hispanic. He
received his medical degree in Peru in 1984. In 1989, Plaintiff moved to
the United States. Plaintiff is a citizen of the United States and is
currently a practicing surgeon. Plaintiff became certified to practice
medicine in the United States in 1989 and has been practicing as a
general surgeon since 1995.
In June 1995, Plaintiff completed an application to sit for the Board's
entrance examinations. The Board's certifying procedures require an
applicant to pass two exams. An applicant must first take and pass a
written exam. Upon passage of the written exam, an applicant must then
take and pass an oral exam. Plaintiff passed the Board's written exam in
October of 1995. Plaintiff then took the oral exam on three separate
occasions and failed each time.
The oral exam consists of three thirty minute oral sessions conducted
by two examiners in each session. Thus, for each oral exam, an applicant
has six different examiners and a candidate never has the same examiner
for any subsequent attempts. To pass the exam, an applicant must pass in
two of the sessions and both examiners during that session must give the
applicant a passing score. The Board allows an applicant the opportunity
to pass the oral exam three times during a five year period. If an
applicant fails the oral exam after three attempts, the applicant must
satisfactorily complete at least one year of surgical education in a
surgery program which is approved in advance by the Board before becoming
eligible to take the exam again.
When an applicant fails the oral exam, a dictation of the candidate's
performance is made. Further, an applicant can request a critique of his
or her performance. This critique is based on the examiners' notes and
the dictations. Further, if an applicant wishes to appeal his or her
results, there is a three step appeals process within the Board.
Moreover, all applicants are instructed to report any unusual or
offensive conduct that occurs during the exam to the on-site office
immediately following the exam.
The first time Plaintiff sat for the oral exam was in October of 1996
in Rochester, New York. Plaintiff did not pass that exam; rather, he
received five failing scores and one passing score from the six
examiners. Plaintiff requested a critique of his performance from this
exam, but did not report any unusual or offensive conduct and did not
appeal the decision.
Plaintiff took his second oral exam in November of 1997 in Washington,
D.C. Plaintiff again failed the exam. He received four failing scores and
two passing scores from six different examiners. Plaintiff also received
a critique of his performance from this test, but again did not report
any unusual or offensive conduct and did not appeal the decision.
Plaintiff wrote a letter to the Board on December 9, 1998, informing
the Board that he felt he was the victim of national origin/ancestry
discrimination. On December 30, 1998, 107 days after Plaintiff took the
September 14, 1998 exam, Plaintiff filed a charge of discrimination with
the Pennsylvania Human Relations Commission (the "PHRC"). On July 23,
1999, 322 days after Plaintiff took the September 14, 1998 oral exam,
Plaintiff filed a discrimination charge with the Equal Employment
Opportunity Commission (the "EEOC").
On January 10, 2000, Plaintiff filed the Complaint in this case. In his
Complaint, Plaintiff alleges he was subjected to discrimination on the
basis of his national origin and race in violation of Title VII, §
1981, and the PHRA. Plaintiff argues that these discriminatory violations
resulted in his failing the oral exam. Plaintiff has clarified that his
claims are only relevant as to the third oral exam administered on
September 14, 1998.*fn1 Defendant filed a Motion for Summary Judgment as
to each of Plaintiff's claims, which we now consider.
In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a
court must determine "whether there is a genuine issue of material fact
and, if not, whether the moving party is entitled to judgment as a matter
of law." Medical Protective Co. v. Watkins 198 F.3d 100, 103 (3d Cir.
1999) (internal citation omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn therefrom, in the
light most favorable to the non-moving party. See; e.g., Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). For its part, the non-moving party must,
through affidavits, admissions, depositions, or other evidence,
demonstrate that a genuine issue exists for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
making its showing, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts," id. at
586, 106 S.Ct. 1348, and must produce more than a "mere scintilla of
evidence in its favor" to withstand summary judgment. Anderson v. Liberty