Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407
The first step in this framework is to establish a prima facie case. To
establish a prima facie case under a disparate treatment theory, a
plaintiff must show (1) that he or she is a member of a protected class;
(2) that he or she was qualified for the job but was nevertheless
rejected for the position; and (3) that non-members of the protected
class were treated more favorably. Ezold v. Wolf Block Schorr and
Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992).
Once a plaintiff establishes a prima facie case, the burden shifts to
the Defendant to articulate a legitimate, non-discriminatory reason for
the adverse employment action. See McDonnell Douglas, 411 U.S. at
802-04, 93 S.Ct. at 1824.
Plaintiff must then demonstrate that the defendant's stated reasons for
the adverse employment action are not the true reasons, but rather were a
pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-04, 93
S.Ct. at 1825. There are two ways by which a plaintiff can fulfill its
burden at summary judgment with respect to showing pretext. The plaintiff
must point "`to some evidence, direct or circumstantial, from which a
fact-finder would reasonably either: (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.'" Jones v. Sch. Dist. of
Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994) and Sheridan v. E.I. DaPont de
Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc)).
Further, it must be shown that the employer bore a discriminatory animus
against the employee and that this animus manifested itself in some
challenged action, whether it be dismissal, failure to promote, failure
to hire or, in this case, failure to pass.
2. Plaintiff's Case
In determining whether Plaintiff has made out a prima facie case of
discrimination under § 1981, the Court first finds, and Defendants
concede, that Plaintiff is a member of a protected class. Further, the
Court finds that Plaintiff was "qualified" for the position in that he
had taken and passed the written examination and was, thus, qualified to
take the oral exam. We must now determine whether Plaintiff has presented
any evidence to demonstrate that non-members of the protected class were
treated more favorably.
Plaintiff admits that he has no evidence of any direct, intentional
discrimination. See Pl.'s Dep. Tr. at pp. 121-23. Rather, Plaintiff
argues that the statistics regarding the fail rate on the oral
examination of Hispanics when compared to that of Caucasians reflects the
Defendant's discriminatory intent.
While statistical evidence is more common in disparate impact cases,
plaintiffs in a disparate treatment case may also introduce statistical
evidence to support an inference of discrimination. See Bruno v. W.B.
Saunders Co., 882 F.2d 760, 767 (3d Cir. 1989); see also Abrams v.
Lightolier, Inc., 50 F.3d 1204, 1217 (3d Cir. 1995) (disparate treatment
plaintiffs are not precluded from introducing statistical evidence);
Duvall v. Polymer Corp., No. CIV.A. 93-3801, 1995 WL 581910, at *9
(E.D.Pa. Oct. 2, 1995) (same). However, "in individual disparate
treatment cases . . . statistical evidence is less significant because
the ultimate issue is whether the particular plaintiff was the victim of
an illegitimately motivated employment decision." Krodel v. Young,
748 F.2d 701, 710 (D.C.Cir. 1984), cert. denied, 474 U.S. 817, 106 S.Ct.
62, 88 L.Ed.2d 51 (1985). Further, while the
statistical evidence is "admissible and may be helpful," it is
"ordinarily not dispositive." Id. (citing Furnco Constr. Co. v. Waters,
438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).
In this case, Plaintiff first argues that we should limit the
statistical data to the test takers of the September 1998 Philadelphia
oral examination as opposed to looking at the national numbers.*fn3
While the Court doubts that these limited numbers are sufficient to make
any meaningful analysis, for the purposes of this discussion, we will
only look at the statistics for the September 1998 Philadelphia oral
There were 197 applicants for the September 1998 Philadelphia oral
exam. Ten (10) of those applicants identified themselves as Hispanic. of
those 10 Hispanic applicants, three (3) failed the exam. Thus, 30% of the
Hispanic applicants failed the exam. There were 147 Caucasian
applicants. Of this 147, eighteen (18) failed the exam. Thus, 12.24% of
the Caucasian applicants failed the exam. Plaintiff argues that the
discrepancy in the fail rate-30% vs. 12.24%-leads to an inference of
discrimination sufficient to establish a prima facie case.
The Court finds that this statistical evidence, standing alone, is
insufficient to demonstrate a prima facie case of discrimination. In
fact, the Court finds the numbers are not statistically significant at
all. See generally Haskell v. Kaman Corp., 743 F.2d 113, (2d Cir. 1984)
(rejecting statistical data where the sample size was too small to be
meaningful); see also Kittredge v. Parker Hannifin Corp., 597 F. Supp. 605,
610 (W.D.Mich. 1984) ("large statistical differences are required before
courts will attach any real significance to statistical evidence").
Plaintiff suggests that the numbers show that Hispanics fail at a rate
of three times that of Caucasians. While the numbers may appear
statistically to show that, the numbers are too small from which to make
any inferences. For example, if only two more examinees of Hispanic
origin had passed the exam, by Plaintiff's own admission, he would not
have a claim. Further, Plaintiff does not account for any other reasons
that any of these applicants may have failed the exam. There is, for
example, no analysis of the medical education or training programs that
the candidates who failed attended. Moreover, Plaintiff's numbers fail to
take into account that he was a re-examinee and not a first time test
taker. Defendant has presented evidence to demonstrate that
re-examinees, regardless of race or national origin, fail at a greater
rate than first time test takers. See Supplemental Aff. of Wallace P.
Ritchie, Jr., M.D., Ph.D. attached as Ex. A to Def.'s Reply Brief.
However, even if the Court assumes that Plaintiff has made out a prima
facie case using the statistical data provided, he still cannot overcome
Defendant's legitimate, non-discriminatory reason for his failing score.
The uncontradicted evidence demonstrates that the Board's
primary purpose is to "certify the education, experience, and knowledge of
broadly qualified and responsible surgeons." See Aff. of Wallace P.
Ritchie, Jr., M.D., Ph.D. attached as Ex. A to Def.'s Mot. for Summary
Judgment. Defendant argues that six different examiners tested Plaintiff
during the September 1998 oral exam. of these six, four determined that
Plaintiff failed the exam and was not qualified to be board certified and
two determined that Plaintiff passed the exam. Defendant maintains that
the Board has a legitimate, non-discriminatory purpose in failing
applicants who its examiners do not deem qualified for board
certification. The Court agrees.
Defendant further argues that this Court should defer to the decision
of the six, independent oral examiners. See Hankins v. Temple
University, 829 F.2d 437, 443 (3d Cir. 1987) (in context of Title VII
discrimination claim, court held that "[u]niversity faculties . . . must
have the widest discretion in making judgments as to the academic
performance of their students"); see also Dietz v. American Dental
Association, 479 F. Supp. 554, 557 (E.D.Mich. 1979) ("courts defer to a
professional association when it determines the competence of a member as
long as the reasons for the decision are not arbitrary, capricious, or
Plaintiff does not provide any evidence to demonstrate that Defendant's
legitimate, non-discriminatory reason, that Plaintiff was not qualified,
is a pretext for discrimination. For example, Plaintiff has not presented
any evidence that the examiners made any discriminatory comments to him
or otherwise demonstrated a discriminatory motive. Further, Plaintiff has
not presented any evidence that there were any discrepancies in the
administration of the test that would demonstrate that the Defendant's
finding that he was unqualified was a pretext for discrimination. See
Dietz, 479 F. Supp. at 559 (finding genuine issue of material fact where
plaintiff presented evidence that examiners spent "their time discussing
[plaintiff's] appearance and not his knowledge" and where the plaintiffs
examination was shorter than it should have been and he was "not given
the approximately one hour of testing that the Board gave every other
To refute the Defendant's legitimate, non-discriminatory reason,
Plaintiff only presents the same statistical evidence that was discussed
above. Even if the Court allowed this evidence to satisfy the prima
facie case requirements, we will not allow the statistical evidence
presented by Plaintiff to demonstrate a pretext. See, e.g., Equal
Employment Opportunity Commission v. Texas Instruments Inc., 100 F.3d 1173,
1185-86 (5th Cir. 1996) (in individual disparate treatment case,
statistical evidence alone is insufficient to demonstrate pretext in the
face of a particularized, legitimate, nondiscriminatory reason); Krodel,
748 F.2d at 710 (statistical evidence in individual disparate treatment
case is "ordinarily not dispositive"). Therefore, the Court will grant
summary judgment as to Plaintiff's § 1981 claim.
III. Plaintiff's PHRA Claim
As there are no remaining federal claims, the Court does not reach the
merits of Plaintiff's PHRA claim. The Court dismisses that claim without
prejudice to allow Plaintiff to pursue it in state court.
An appropriate Order follows.
AND NOW, this 27th day of August, 2002, upon consideration of the
Defendant's Motion for Summary Judgment and Plaintiff's response
thereto, it is hereby
ORDERED that, for the reasons set forth in the accompanying Memorandum,
the Motion is GRANTED as follows:
1. Summary Judgment is GRANTED in favor of Defendant
with regard to Plaintiff's Title VII claim;
2. Summary Judgment is GRANTED in favor of Defendant
with regard to Plaintiff's § 1981 claim; and
3. Plaintiffs PHRA claim is DISMISSED WITHOUT