                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1034

KAMALJIT S. PAUL, Doctor,
                                           Plaintiff-Appellant,
                              v.

THEDA MEDICAL CENTER, INCORPORATED,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 05 C 54—William C. Griesbach, Judge.
                        ____________
 ARGUED SEPTEMBER 6, 2006—DECIDED OCTOBER 13, 2006
                   ____________


  Before FLAUM, Chief Judge, and BAUER and POSNER,
Circuit Judges.
  BAUER, Circuit Judge. Dr. Kamaljit S. Paul, an Asian-
Indian man, sued Theda Clark Medical Center (“Theda
Clark”), claiming that he was discriminated against because
of his race in violation of 42 U.S.C. § 1981 and Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Dr. Paul
also claimed that Theda Clark breached its own bylaws by
denying him active staff membership at the medical center.
The district court granted summary judgment in favor of
the defendant. We affirm.
2                                                   No. 06-1034

                       I. Background
  Dr. Paul was born in India. He received a Master of
Surgery from the University of Lucknow in India and a
Master of Neurosurgery from the University of Manchester
in England. In 1984, Dr. Paul came to the United States to
participate in a two-year neurotrauma fellowship. After
completing his fellowship, Dr. Paul moved to Wisconsin and
entered private neurosurgery practice. From 1986 to 1992,
Dr. Paul held medical staff privileges and practiced neuro-
surgery at Mercy Medical Center and St. Elizabeth Hospi-
tal. In 1991, Dr. Paul also received active staff membership
at Theda Clark in Neenah, Wisconsin. Dr. Paul maintained
active status at Theda Clark until May 23, 2003.
  In 1998, the American College of Surgeons certified Theda
Clark as a Level II trauma center. The American College of
Surgeons provides guidelines and regulations regarding the
certification process of trauma centers in their “Gold Book”
formally titled Resources for Optimal Care of the Injured
Patient. According to the Gold Book, Level II trauma
certification requires that all neurosurgeons who partici-
pate in the trauma program be board certified.
  Theda Clark’s bylaws require that physicians appointed
to active staff membership be available to provide “specialty
care coverage for the emergency department.” Dr. Paul is
not board-certified by the American College of Surgeons in
neurosurgery. From 1992 to 2003, Dr. Paul never performed
surgery at Theda Clark. However, in order to retain his
active staff membership, Dr. Paul reapplied approximately
every two years.1 In January of 2003, Dr. Paul applied to


1
  Despite the fact that Dr. Paul was a non-board-certified
neurosurgeon, he was allowed to remain an active staff member
after Theda Clark was designated a Level II Trauma Center in
1998. Theda Clark contends that Dr. Paul’s re-applications should
                                                    (continued...)
No. 06-1034                                                       3

extend his active status, anticipating that he would begin
performing surgery there for insurance reasons.2 Dr. Paul
was informed that his application for active status had been
denied because as a non-board-certified neurosurgeon, he
could not provide trauma call coverage at Theda Clark’s
Level II trauma center. Dr. Paul appealed the initial
determination to Theda Clark’s hearing committee. In
upholding the denial, the hearing committee stated that the
denial was based solely on Dr. Paul’s “inability to meet the
requirements outlined in the By-Laws and the American
College of Surgeons Gold Book to provide call coverage for
trauma and pediatric patients at Theda Clark.” Theda
Clark’s hearing committee instead extended Dr. Paul
courtesy status.3 As a courtesy staff member, Dr. Paul
retained the same clinical privileges that he had during his
active status.4
  On January 20, 2005, Dr. Paul filed a two-count com-
plaint in federal district court alleging that Theda Clark



1
  (...continued)
have been denied in 1999 and 2001, but his status was mistakenly
overlooked due to his inactivity at the hospital.
2
   Prior to December 2002, both Theda Clark and Mercy Medical
Center accepted Touchpoint Insurance on behalf of its surgical
patients. A significant number of Dr. Paul’s patients were insured
by Touchpoint. In December of 2002, Mercy Medical no longer
accepted Touchpoint Insurance, and as a result, Dr. Paul planned
to utilize Theda Clark more frequently in 2003.
3
   While physicians with active staff membership at Theda Clark
may perform as many surgeries or procedures as their practice
requires, courtesy staff members may not admit more than twenty
patients every two years.
4
   Clinical privileges refer to the types of treatments, procedures,
and care each physician is entitled to provide at Theda Clark. In
contrast, staff membership is reflective of the level of patient
involvement and administrative responsibilities of the physician.
4                                                No. 06-1034

discriminated against him by declining his application for
active staff membership. The first count alleged that Theda
Clark had a discriminatory motive or purpose based on
Dr. Paul’s race in modifying its contract with him in
violation of 42 U.S.C. § 1981. The second count alleged that
the modification of Dr. Paul’s staff membership was a
breach of the parties’ contract according to Theda Clark’s
bylaws. Dr. Paul filed an amended complaint on May 18,
2005, adding an additional civil rights violation under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d).
In this count, Dr. Paul claimed that Theda Clark violated
the Civil Rights Act by denying his application for active
staff membership because Theda Clark receives Medicare
and Medicaid funding and discriminatory actions are not
tolerated in an institution that receives federal funding.
  On August 29, 2005, Theda Clark moved for summary
judgment, and on December 20, 2005, the district court
granted the defendant’s motion on all three causes of action.
The district court found that Dr. Paul failed to establish
that (1) he was qualified for active staff membership, (2)
Theda Clark’s basis for declining his application for active
staff membership was pretextual, and (3) Theda Clark’s
bylaws entitled him to active staff membership. This timely
appeal followed.


                      II. Discussion
  We review the district court’s grant of motion for sum-
mary judgment de novo. Sartor v. Spherion Corp., 388 F.3d
275, 277 (7th Cir. 2004). Summary judgment is proper if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with any affidavits, show that
there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party
meets this burden, the nonmoving party must then go
No. 06-1034                                                  5

beyond the pleadings and set forth specific facts showing
that there is a genuine issue for trial. FED. R. CIV. P. 56(e).
This court must draw every justifiable inference from the
record in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The existence of merely a
scintilla of evidence in support of the nonmoving party’s
position is insufficient to defeat a summary judgment
motion. Id. at 252.


  A. Dr. Paul’s § 1981 and Title VI Claims
  Dr. Paul contends that he provided sufficient evidence of
racial discrimination to demonstrate a cause of action under
the Civil Rights laws. The framework governing liability
under Title VII also applies to section 1981 claims. Gonza-
lez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1035
(7th Cir. 1998). Direct or indirect evidence can be used to
prove racial discrimination in an employment setting. Rush
v. McDonald’s Corp., 966 F.2d 1104, 1113 (7th Cir. 1992).
Because Dr. Paul did not present direct evidence of racial
discrimination, the district court used the burden shifting
formula established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), to determine whether discrimination
occurred.
   In order to establish a prima facie case of discrimination,
Dr. Paul must present by a preponderance of the evidence
that: (1) he was a member of a protected class; (2) he was
qualified for the job in question; (3) he suffered an adverse
employment action; and (4) the defendant treated other
similarly-situated employees who were not members of the
class more favorably. McDonnell Douglas, 411 U.S. at 802;
Gonzalez, 133 F.3d at 1032. If a prima facie case is estab-
lished, the burden shifts to the defendant to produce
evidence of a legitimate, non-discriminatory reason for its
6                                                No. 06-1034

decision. Id. If the defendant produces such a reason, the
plaintiff has an opportunity to show that the articulated
explanation was in fact pretext. McDonnell Douglas, 411
U.S. at 804; Gonzalez, 133 F.3d at 1032. A pretext is a “lie,
specifically a phony reason for some action.” Jackson v. E.J.
Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999).
  Dr. Paul failed to present sufficient evidence to satisfy the
second and fourth prongs of the McDonnell Douglas test.
First, Dr. Paul did not establish that he was qualified for
active staff membership at Theda Clark. Although both
parties agree that Dr. Paul is a non-board-certified neuro-
surgeon, Dr. Paul argues that Theda Clark does not
actually require board certification for active neurosur-
geons. Theda Clark’s bylaws state that physicians ap-
pointed to active staff membership must be available to
provide “specialty care coverage for the emergency depart-
ment.” Additionally, in order to maintain its Level II
trauma center designation, Theda Clark must follow the
requirements listed in the American College of Surgeons’
Gold Book. The Gold Book states:
    [b]asic to qualification for trauma care for any surgeon
    is board certification in a surgical specialty recognized
    by the American Board of Medical Specialties. . . . The
    board certification requirement applies to the general
    surgeon, orthopedic surgeon, and neurosurgeon. These
    requirements are also essential for the emergency
    medical physicians in Level I and II centers and desir-
    able for those in Levels III and IV. These requirements
    are desirable for anesthesiologists.
Theda Clark’s bylaws require its active staff members to
participate in trauma call coverage and neurosurgeons
providing call coverage for Level II trauma centers
are required to be board certified. Thus, Dr. Paul does not
qualify for active staff membership at Theda Clark.
 Second, Dr. Paul failed to produce sufficient evidence that
Theda Clark treated other non-board-certified neurosur-
No. 06-1034                                                       7

geons who were not of Asian-Indian descent more favorably.
In fact, all other neurosurgeons with active staff member-
ship at Theda Clark are board certified. The only non-
board-certified physician with active staff membership that
Dr. Paul has identified is Dr. Behrens, an anesthesiologist.5
The Gold Book states that board certification is “essential”
for neurosurgeons but only “desirable” for anesthesiologists.
Therefore, anesthesiologists are not required to be board
certified to provide trauma call coverage at Theda Clark.
This is not the case for neurosurgeons. Because Dr. Paul
failed to produce any evidence that he was treated differ-
ently than other neurosurgeons, he did not establish a
prima facie case of discrimination.
  Even had Dr. Paul established a prima facie case of
discrimination with respect to Theda Clark’s decision not to
extend his active staff membership, there is not enough
evidence of pretext in the record to survive summary
judgment. Dr. Paul claims that Theda Clark’s reason for
denying him active staff membership—lack of board
certification—was pretextual and that Theda Clark’s actual
intent was to discriminate against him based upon his race.
  In support of his position, Dr. Paul first testified that he
requested surgery time in March of 2003, and Theda Clark
failed to respond to his request. Dr. Paul insists that he did
not receive the surgical time because of his ethnic, religious
and/or cultural beliefs. However, Dr. Paul never followed up
with Theda Clark to determine why they had not responded
to his request. Additionally, Dr. Paul testified that he
applied for privileges at Theda Clark in 1986, but he did not


5
   Despite the fact that Dr. Ullrich is a board certified orthopedic
surgeon, Dr. Paul also identified Dr. Ullrich, claiming that Dr.
Ullrich was treated differently because he was not required to
provide call coverage at Theda Clark. However, the record reflects
that Dr. Ullrich does provide emergency call coverage in orthope-
dic spine trauma.
8                                               No. 06-1034

receive privileges until 1992. Once again, Dr. Paul assumes
that Theda Clark delayed his application because of his
ethnicity.
  In another attempt to show pretext, Dr. Paul claims that
in 1994 or 1995 a patient told him that a Theda Clark
physician, since retired, told the patient that “Dr. Paul
should go back from [where] he has come from, he should
take his camel back there.” There is no evidence that this
retired doctor was involved in or at all influenced Theda
Clark’s decision to deny Dr. Paul active staff membership.
The statement is irrelevant. See Rozskowiak v. Village of
Arlington Heights, 415 F.3d 608, 611-13 (7th Cir. 2005)
(concluding that plaintiff’s supervisor’s comment that
plaintiff “would probably be losing [his] job because [he]
was a stupid Polack,” was unrelated to the plaintiff’s
termination, and the plaintiff was terminated for legiti-
mate, job-related reasons). Theda Clark’s requirement that
a neurosurgeon with active staff membership be board
certified is a legitimate and non-discriminatory reason for
denying Dr. Paul active status. Because Dr. Paul fails to
discredit this reason, the district court did not err when it
granted summary judgment in favor of Theda Clark on the
§ 1981 and Title VI claims.


    B. Dr. Paul’s Breach of Contract Claim
  Dr. Paul argues that Theda Clark violated its bylaws by
denying him active staff membership. Dr. Paul cites
Seitzinger v. Community Health Network, 676 N.W.2d 426,
433 (Wis. 2004) and Bass v. Ambrosius, 520 N.W.2d 625,
627 (Wis. Ct. App. 1994), in support of the general proposi-
tion that a hospital’s bylaws can constitute a binding
contract between the hospital and its staff. The Wisconsin
Supreme Court also held that hospital bylaws are reviewed
under a deferential standard and a hospital’s interpretation
of its bylaws should stand if reasonable. Seitzinger, 676
N.W.2d at 433.
No. 06-1034                                                      9

 Even if Theda Clark’s bylaws create a contract between
Theda Clark and Dr. Paul, there is no breach of contract.
Theda Clark’s bylaws state:
    [t]he active medical staff shall consist of physicians,
    dentists, and podiatrists who regularly admit patients
    to the hospital or provide services to hospital patients,
    who are located closely enough to the hospital to
    provide continuous care to their patients, and who
    assume all the functions and responsibilities of appoint-
    ment to the active medical staff including where
    appropriate, service on medical staff and department
    committees, specialty care coverage for the emergency
    department and consultation assignments.
The bylaws clearly state that an active staff member
assumes responsibilities that include providing “specialty
care coverage for the emergency department.” Because
Theda Clark is a Level II trauma center, all neurosurgeons
that provide trauma call coverage must be board certified.
Dr. Paul argues that he did not apply to become a member
of the trauma team and therefore was not required to be
board certified.6 However, the bylaws do not state that an
active staff member is allowed to opt out of trauma cover-
age. On the contrary, if Dr. Paul was appointed to active
staff membership, he would be required to provide “spe-
cialty care coverage” according to Theda Clark’s bylaws.
Therefore, the district court did not err when it granted
summary judgment on Dr. Paul’s breach of contract claim.




6
   Dr. Paul also argues that Theda Clark’s bylaws include a
“grandfather clause” that exempts him from the requirement of
board certification. However, the clause is located under Article
VI of the bylaws, which is entitled “clinical privileges” and
pertains to clinical privileges rather than staff membership. This
clause entitles Dr. Paul to retain his clinical privileges but does
not entitle him to active staff membership.
10                                         No. 06-1034

                  III. Conclusion
  For the reasons stated above, we AFFIRM the district
court’s grant of summary judgment.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—10-13-06
