              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-10178




     PAMELA JEFFREY, MD;
     PAULA LEWIS, MD,

                                             Plaintiffs-Appellants,

          versus

     COLUMBIA MEDICAL CENTER AT
     LANCASTER SUBSIDIARY LP,

                                             Defendant-Appellee.




          Appeal from the United States District Court
                for the Northern District of Texas
                         (3:99-CV-2246-H)

                           August 15, 2002


Before GARWOOD, DeMOSS and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:*

     Plaintiffs-appellants Pamela Jeffrey (Dr. Jeffrey) and Paula Lewis

(Dr. Lewis) brought this lawsuit against defendant Columbia Medical

Center at Lancaster Subsidiary LP (the hospital), alleging that the




     *
      Pursuant to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
hospital discriminated against them in violation of 42 U.S.C. § 1981.1

The district court, after time for discovery, granted the hospital’s

motion for summary judgment. The plaintiffs appeal the summary judgment

in favor of the hospital.    We affirm.

                     Facts and Proceedings Below

     Dr. Jeffrey and Dr. Lewis are both board certified

anesthesiologists.   They are both African-American.     Dr. Jeffrey

joined the staff at the hospital (which was then called Midway Park

Hospital) in 1990.   Dr. Lewis also joined the hospital staff in 1990.

They provided anesthesia services to the hospital until 1997.       In

1994, Drs. Jeffrey and Lewis, along with Dr. George Jones, formed

Triad Anesthesia Group, PLLC (Triad), a professional limited

liability company.   At all relevant times, Drs. Jeffrey and Lewis

have been owners of Triad.    (Dr. Jones is no longer a Triad owner and

is not involved in this suit.)

     On January 1, 1997, Ernest Lynch (Lynch) became Chief Executive

Officer of the hospital.    His duties included oversight of the

hospital’s day to day operations and he was authorized to negotiate

and enter into exclusive contracts on behalf of the hospital.       In

August 1997, Lynch, on behalf of the hospital, entered into a

contract with North Texas Anesthesia Consultants (NTAC), an outside

group, for NTAC to provide the hospital with anesthesia “call


     1
       The plaintiffs’ complaint also stated a state law claim for
intentional infliction of emotional distress. They do not press that
claim on appeal.

                                   2
coverage” from August 16, 1997 through September 3, 1997.2       Under the

contract, NTAC was paid $1,500 per twelve hour period for providing

the call coverage.   Prior to this time, the hospital did not pay for

call coverage.   Coverage was provided by staff anesthesiologists

(including the plaintiffs), who made themselves available for

emergency and obstetric procedures on a rotating basis.       The staff

anesthesiologists billed for any services rendered, but were not paid

for merely making themselves available to take emergency calls.

     On September 7, 1997, after getting word through informal

channels of the arrangement with NTAC, Dr. Jeffrey wrote to Lynch

inquiring about the possibility of a similar arrangement for Triad.3

Lynch agreed to pay Triad $1,000 per twelve hour period to provide

call coverage during September and October 1997.      Dr. Ariba Quansah,

an anesthesiologist on the staff of the hospital, was also paid for

call coverage at a $1,000 rate during September and October 1997.4

Dr. Quansah apparently is an African-American.

     On August 1, 1997, Lynch informed Triad that the hospital was


     2
        Providing “call coverage” meant that NTAC would make
anesthesiologists available on short notice to provide anesthesia
services for unscheduled procedures such as emergency surgeries or
deliveries. In the case of a scheduled surgery, a surgeon would request
an anesthesiologist in advance.
     3
       As we explain below, the content of Dr. Jeffrey’s letter
indicates that she did not entirely understand the details of the
arrangement with Triad.
     4
        It appears from the record that Dr. Quansah was actually only
paid $1,000 per twenty-four hour period, whereas Triad was paid $1,000
per twelve hour period (or $2,000 per twenty-four hour period).

                                   3
considering entering an exclusive arrangement for anesthesia services

and that Triad could submit a proposal.      Lynch also solicited

proposals from anesthesiology groups that did not practice at the

hospital.    Lynch received proposals from Triad, DFW Anesthesia (DFW),

and Anesthesia Consultants.    Triad proposed to provide call coverage

for a stipend of $20,000 per month.      DFW proposed a $35,000 monthly

stipend.    And Anesthesia Consultants proposed a $40,000 monthly

stipend.    Lynch awarded the exclusive contract to DFW and the

arrangement was effective November 1, 1997.      On October 2, 1997,

Lynch sent letters to Drs. Jeffrey and Lewis informing them that, as

of November 1, they would no longer be able to exercise their

clinical privileges in the hospital, except for secondary

consultations, because DFW would become the hospital’s exclusive

provider of anesthesia services as of that date.5

     The plaintiffs contend that the hospital’s actions in paying

NTAC for call coverage at a higher rate than Triad was paid for the

same coverage and in awarding the exclusive contract to DFW rather

than to Triad, which had submitted the lowest bid, were motivated by

racially discriminatory animus.       In support of its summary judgment

motion, the hospital offered evidence, including copies of

correspondence and Lynch’s affidavit and deposition testimony, of

legitimate reasons for its actions.      Lynch testified that he entered


     5
       The uncontradicted evidence is that the same letter was sent to
all of the anesthesiologists who were then on staff at the hospital,
including several who were white.

                                  4
into the three week contract with NTAC because, in August 1997, he

became aware of significant deficiencies in the hospital’s existing

call coverage system and perceived an urgent need to enact a

temporary solution until the problems were resolved.   Lynch stated

that, when the NTAC arrangement ended, he arranged for Triad and Dr.

Quansah to provide the call coverage and paid them at the $1,000 rate

only because they were willing to provide the coverage at that rate.

Lynch explained that he also felt the lower rate was justified

because the plaintiffs and Dr. Quansah were already on staff at the

hospital and received income when surgeons at the hospital requested

their services for elective surgeries.   Regarding the DFW contract,

Lynch testified that a primary factor weighing in DFW’s favor was its

size.   Of the three groups submitting proposals, DFW was by far the

largest with a total of seventy-seven physicians.   According to his

testimony, Lynch perceived that a group the size of DFW would be

better able to meet the hospital’s needs than a smaller group.   On or

about September 10, 1997, Dr. Jeffrey had informed Lynch that Triad

had employed a new physician, Dr. Kevin Thomas, and that Dr. Jeffrey

had a medical condition requiring treatment.   Thus, at the time Lynch

was making his decision, he knew that Triad consisted of only three

physicians, one of whom was new and another of whom had a medical

condition.

     The district court held that the plaintiffs did not have

standing to assert the section 1981 claims because the contracts at



                                 5
issue related to Triad as an entity, rather than to the plaintiffs as

individuals.    The district court further ruled that, even if the

plaintiffs did have standing, they had produced no evidence to rebut

the hospital’s proof of legitimate, non-discriminatory reasons for

its decisions.    The plaintiffs challenge both of these determinations

on appeal.



                             Discussion

I. Standard of Review

     We review a district court’s grant of summary judgment de

novo, applying the same standard as that employed by the district

court.    Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th

Cir. 1996).    Summary judgment is proper if, after adequate

opportunity for discovery, the pleadings, depositions, answers to

interrogatories, and admissions on file, together with any

affidavits filed in support of the motion, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.    See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511

(1986).    The moving party bears the initial responsibility of

stating the basis for its motion and identifying the portions of

the summary judgment record which it believes demonstrate the

absence of a genuine issue of material fact, but is not obligated

to support the motion with material negating the opponent’s


                                  6
claim.    Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553, 2554

(1986).    When a proper motion is made, summary judgment should be

granted if the nonmovant fails to make a sufficient showing, by

appropriate summary judgment evidence, to establish the existence

of an essential element of his case on which he will bear the

burden of proof at trial.    Id. at 2552.   Summary judgment is

proper where the summary judgment evidence does not suffice to

support a verdict in favor of the nonmovant.     Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 - 76 (5th Cir. 1994).    “When

evaluating the summary judgment evidence, we resolve factual

controversies in favor of the nonmoving party, but only when

there is an actual controversy; that is, when both parties have

submitted evidence of contradictory facts.”     Guillory, 95 F.3d at

1326.

II. Standing

     42 U.S.C. § 1981 provides, in pertinent part:

     “(a) Statement of equal rights. All persons within the
     jurisdiction of the United States shall have the same
     right in every State and Territory to make and enforce
     contracts . . . as is enjoyed by white citizens . . . .

     (b) ‘Make and enforce contracts’ defined. For purposes
     of this section, the term ‘make and enforce contracts’
     includes the making, performance, modification, and
     termination of contracts, and the enjoyment of all
     benefits, privileges, terms, and conditions of the
     contractual relationship.

     (c) Protection against impairment. The rights protected
     by this section are protected against impairment by
     nongovernmental discrimination and impairment under
     color of State law.”

                                  7
     Thus, as relevant to this case, section 1981 proscribes

racial discrimination that concerns the making or enforcing of a

contract.   See Bellows v. Amoco Oil, 118 F.3d 268, 274 (5th Cir.

1997).   The essence of the plaintiffs’ claim is that there was a

racially discriminatory motivation behind the hospital’s

decisions to pay Triad less for call coverage than it had paid

NTAC and to award DFW the exclusive contract rather than Triad.6

The district court correctly applied this court’s decision in

Bellows to find that the plaintiffs did not have standing to

assert Triad’s legal rights under section 1981.

     Standing is a jurisdictional question, and thus a question

of law that is reviewed de novo by this court.       See James v. City

of Dallas, 254 F.3d 551, 562 (5th Cir. 2001).       To establish

standing, a litigant must demonstrate that he has suffered an injury

in fact.    Havens Realty Corp. v. Coleman, 102 S.Ct. 1114, 1121


     6
       We note that the nature of the plaintiffs’ claims appear to have
evolved somewhat from those articulated in the complaint. The complaint
alleged that the plaintiffs’ medical clinical privileges were terminated
for racially discriminatory reasons and that the terminations denied the
plaintiffs due process as guaranteed by the hospital’s by-laws. It
further alleged that, for racially discriminatory reasons, the
plaintiffs were denied the same opportunity to submit an exclusive
anesthesia services proposal that white anesthesiologists enjoyed. As
developed during discovery in the district court, and as pressed by the
plaintiffs on appeal, the essence of their claim now is that paying NTAC
at the $1,500 rate while paying Triad at the $1,000 rate was disparate
treatment and that Lynch’s choice of DFW over Triad for the exclusive
contract was racially motivated. In their arguments to this court, the
plaintiffs do not address the due process allegation or direct our
attention to the hospital by-laws and do not contend that they were
denied an adequate opportunity to submit a proposal for the exclusive
contract.

                                   8
(1982).    A civil rights plaintiff shareholder may not establish

standing merely by alleging injuries suffered by the corporation

alone.    Gregory v. Mitchell, 634 F.2d 199, 292 (5th Cir. 1981).   In

Bellows, the plaintiff individual, an African-American, was the

majority owner and president of Phillips Industrial Constructors,

Inc. (PICI).    He alleged that defendant Amoco Oil Company, motivated

by racial animus, had modified, changed, or terminated contracts with

PICI in violation of section 1981.    Relying on our previous decision

in Searcy v. Houston Light & Power Co., 907 F.2d 562 (5th Cir.),

cert. denied, 111 S. Ct. 438 (1990), we explained that “because

Bellow’s claim against Amoco is merely derivative of PICI’s cause of

action, Bellow has no individual section 1981 claim against Amoco.”

Bellows, 118 F.3d at 276.7

     This case is analogous to Bellows and Searcy.    The plaintiffs

owned and ran Triad, which was a registered professional limited

liability company.    Cf. Bellows, 118 F.3d at 270 (plaintiff was

majority owner and president of corporation); Searcy, 907 F.2d at 563

(plaintiff was founder and president of corporation).    Triad, as an

entity, was paid for call coverage and Triad, as an entity, submitted

a proposal to provide anesthesia services exclusively.    Cf. Bellows,

118 F.3d at 276 (essence of plaintiff’s claim was that Amoco



     7
       The plaintiff’s name in Bellows was Bellow. His name was
misspelled in the case caption and the error was never corrected.
Bellows, 118 F.3d at 270 n.1.

                                  9
interfered with PICI’s contracts or PICI’s ability to contract with

Amoco); Searcy, 907 F.2d at 563 (plaintiff complained that defendants

refused to contract with corporation).     Thus, it was Triad’s right to

make and enforce contracts that was allegedly infringed and Triad

that had a potential cause of action under section 1981.      The

plaintiffs, as individuals, have no standing to assert Triad’s

claims.   Bellows, 118 F.3d at 276 - 77; Searcy, 907 F.2d at 565.

     The injuries that the plaintiffs allege – economic loss,

embarrassment and humiliation, and loss of professional reputation –

are derivative of Triad’s potential cause of action. The plaintiffs

argue that, at least, their embarrassment and humiliation and

professional reputation injuries are separate and distinct from any

injuries suffered by Triad.8    We rejected the same line of reasoning

in Bellows, wherein we explained “[a]lthough Bellow claimed that he

sustained emotional damages that were different from PICI’s economic

damages, his emotional damages result from the same violation that

gave rise to PICI’s economic damages -- Amoco’s alleged violation of

PICI’s right to contract.”     Bellows, 118 F.3d at 277 n.27 (emphasis

added).   Whether or not they suffered separate and distinct damages,



     8
       The hospital asserts that the plaintiffs may not properly raise
these non-economic injuries on appeal because, in the district court,
they did not argue loss of professional reputation and they alleged
embarrassment and humiliation only in connection with Dr. Lewis’s
intentional infliction of emotional distress claim, which has been
abandoned on appeal. We need not decide whether these issues are
properly before us because, as we explain, all of the alleged injuries
derive from the same alleged conduct.

                                  10
the plaintiffs do not have individual claims for alleged violations

of Triad’s section 1981 rights.    Id.

     The plaintiffs argue that special considerations apply in the

context of a physician’s relationship with a hospital and urge this

court to adopt the holding of Gomez v. Alexian Bros. Hospital, 698

F.2d 1019 (9th Cir. 1983) (per curiam).     In Gomez, the plaintiff

was a physician who owned a professional corporation for

providing emergency room services.     The corporation was denied a

contract to operate the defendant hospital’s emergency room,

allegedly because the plaintiff and other physicians in his group

were Hispanic.   The Ninth Circuit found that Gomez, as an

individual, had standing to assert a Title VII claim because he

had alleged personal and distinct injuries – the failure to award

the contract to his company deprived him of employment as

director of the hospital’s emergency room and caused him

humiliation and embarrassment.    Id. at 1021.   The court stated

that the same analysis applied to Gomez’s section 1981 claim.       Id. at

1022.

     To the extent that Gomez is inconsistent with our holding in

Bellows, Gomez does not state the law in this circuit.     In Bellows,

we explained that “[t]he Amoco work that Bellow lost which

purportedly gave rise to Bellow's section 1981 claim was the

exact same Amoco work that PICI lost.”     Bellows, 118 F.3d at 277.

In this case, any work that Drs. Jeffrey and Lewis lost was the exact


                                  11
same work that Triad lost.   The hospital entered an exclusive

agreement with DFW, meaning that only physicians affiliated with DFW

would be supplied with anesthesia service employment (except on a

secondary consultation basis).   Had the hospital signed an exclusive

contract with Triad instead of DFW, then only physicians affiliated

with Triad would have received this work.   The October 2, 1997

letters from Lynch to the plaintiffs did not terminate the

plaintiffs’ clinical privileges to practice medicine at the hospital.

The letters merely informed the plaintiffs that they would not be

able to exercise those privileges (except on a secondary consultation

basis) while DFW had an exclusive arrangement with the hospital.     In

other words, the plaintiffs were informed that they would be

receiving no more first consultation work from the hospital because

that work would all go to physicians in the DFW group.   The

plaintiffs’ clinical privileges were eventually terminated after a

period of inactivity.   But we are aware of no evidence indicating

that the hospital would have refused to permit the plaintiffs to

continue exercising their clinical privileges if they had chosen to

affiliate with DFW.   As far as the evidence indicates, these

plaintiffs lost work only because Triad lost the contract.     The fact

that the owners of Triad are physicians with clinical privileges at

the defendant hospital does not provide a principled reason to carve




                                 12
out an exception to our section 1981 standing requirements.9

         We conclude that the district court correctly held that the

plaintiffs did not have standing to assert Triad’s section 1981

claims.    Furthermore, as we now explain, even if these plaintiffs did

have standing, we agree with the district court’s determination that

they did not produce sufficient evidence of discrimination to

withstand summary judgment.

II. Sufficiency of Evidence

     “To prevail under section 1981, the plaintiff must
     prove a prima facie case of intentional discrimination.
     The plaintiff may establish a prima facie case by
     direct evidence or, more commonly, by circumstantial
     evidence of discriminatory motive. To establish a
     section 1981 claim, the plaintiff must show that (1) he
     or she is a member of a racial minority; (2) the
     defendant had an intent to discriminate on the basis of
     race; and (3) the discrimination concerned one or more
     of the activities enumerated in the statute; in this
     case, the making and enforcing of a contract.”
     Bellows, 118 F.3d at 274 (internal citations omitted).

     Assuming, arguendo, that these plaintiffs did have standing to

assert a section 1981 claim, the first and third prongs of such a

claim are clearly satisfied.     Thus, the issue to be decided is

whether the plaintiffs made a sufficient showing on the second prong

– intentional discrimination based on race – to survive summary


     9
      We observe that the reasoning in Gomez did not rest on any special
considerations regarding the professional relationship between
physicians and hospitals. For the Gomez court, the inquiry was whether
the defendant’s conduct interfered with Gomez’s employment
opportunities, not whether there was anything special in the nature of
the physician-hospital relationship. See Gomez, 698 F.2d at 1021; see
also Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 273 (5th
Cir. 1988) (explaining Gomez).

                                   13
judgment.    See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th

Cir. 1996) (plaintiff must prove racially discriminatory purpose of

act to show section 1981 violation).       As is common in discrimination

cases, these plaintiffs attempt to prove this element with

circumstantial evidence.10    Claims of racial discrimination brought

under section 1981 are governed by the same evidentiary framework

that applies to claims of employment discrimination under Title VII.

LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.2 (5th Cir.

1996).    This framework was established by the Supreme Court in

McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973) and the

elements of the plaintiff’s prima facie case will necessarily vary

according to the nature of the claim and the facts of the case.

LaPierre, 86 F.3d at 448 & n.3.

     As applied to the facts and nature of this case, the plaintiffs

could make a prima facie case of intentional discrimination by

showing (1) that they are members of a protected class (this is



     10
       The only arguably direct evidence of intentional discrimination
was the deposition testimony of a Dr. Bader (who was not an employee,
officer, or agent of the hospital) who stated that he told the
plaintiffs that he thought it was a possibility that Triad was denied
the exclusive contract because Drs. Jeffrey and Lewis were black. The
plaintiffs do not direct our attention to any evidence showing that Dr.
Bader had any basis or reason to know what motivated Lynch’s decision.
Dr. Bader testified specifically that Lynch had never told him that the
plaintiffs’ race played any role in the decision to award the contract
to DFW and Dr. Bader did not offer any explanation of his grounds for
believing that discrimination was a possibility. Without more, Dr.
Bader’s testimony concerning what he said he thought was a possibility
cannot be regarded as probative direct evidence of discriminatory intent
on the part of the hospital.

                                   14
clearly satisfied), (2) that they sought and were qualified to

receive an available contract, (3) that their contract proposal was

rejected or that they received a contract on unfavorable terms, and

(4) that a similarly-situated person or entity that was not in a

protected class received a contract for which the plaintiffs were

rejected or received a similar contract on more favorable terms.

Cf., e.g., Raggs v. Mississippi Power & Light Co., No. 00-60874,

slip. op. 1361 at 1366 (5th Cir. Jan. 3, 2002) (elements in a

discriminatory discharge case); LaPierre, 86 F.3d at 448 (elements in

a discriminatory hiring case); Wallace, 80 F.3d at 1048 (plaintiff’s

section 1981 complaint alleged discrimination in refusing to renew

employment contract and in differential payment terms under the

original contract).   For our analysis, we will assume arguendo, as

did the district court, that these plaintiffs established a prima

facie case of intentional discrimination.11

      Once the plaintiff makes a prima facie case for

discrimination, an inference of discrimination arises and the

burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the action.     LaPierre, 86 F.3d at 448.

“If the defendant comes forward with a reason which, if believed,

would support a finding that the challenged action was


     11
       We are not entirely satisfied that the plaintiffs have actually
done so. As one example of a possible deficiency, the plaintiffs do not
appear to have produced competent evidence to show that either NTAC or
DFW were white-owned entities.

                                  15
nondiscriminatory, the inference [of discrimination] raised by

the plaintiff's prima facie case drops from the case.”    Id.   Once

the defendant has produced evidence of a legitimate, non-

discriminatory explanation, the plaintiff must produce evidence

which would support a finding that this explanation is

pretextual. Texas Dep’t of Community Affairs v. Burdine, 101

S.Ct. 1089, 1093 (1981); Russell v. McKinney Hosp. Venture, 235

F.3d 219, 222 (5th Cir. 2000).   The defendant’s burden is only

one of production, not persuasion.    Reeves v. Sanderson Plumbing

Products, Inc., 120 S.Ct. 2097, 2106 (2000).   The plaintiff at

all times has the burden of persuasion. Id.

     The hospital articulated legitimate, non-discriminatory reasons

for paying NTAC $1,500 per twelve hour period for call coverage for

three weeks and later paying Triad $1,000 per period for the same

coverage.   Lynch provided affidavit and deposition testimony

reflecting the following: Lynch perceived that the hospital was

facing a crisis in call coverage for anesthesia services in August

1997.   At that time, the hospital’s anesthesia service needs were

being served by Triad, another anesthesiology group called TX-AN, and

a few independent anesthesiologists (including Dr. Quansah).      Prior

to mid-August 1997, call coverage was handled by rotating the

responsibility among these physicians and no one was compensated for

providing call coverage.   (Of course, a physician who was actually

called in to provide anesthesia services for an unscheduled procedure


                                 16
would be paid for that work.)    Lynch believed that there was an

urgent need to bring in an outside entity to handle call coverage

while a permanent solution to that problem was found.       NTAC was

available to provide the coverage but would accept nothing less than

the $1,500 stipend to do so.    NTAC provided call coverage at the

$1,500 rate from August 16, 1997 through September 8.       Triad and Dr.

Quansah agreed to provide call coverage on a rotating basis from

September 8, 1997 through October and they required only a $1,000

stipend to do so.12

     Much of Lynch’s testimony was corroborated by copies of

correspondence and other documentation.13     There was also

uncontroverted evidence that Lynch and Dr. Huang, chairman of the

hospital’s surgery department, reprimanded three anesthesiologists,

including Dr. Lewis, for failure to respond to calls for anesthesia

services in July and August 1997.      (The other two physicians who were

so reprimanded were white males associated with TX-AN.)        Dr. Lewis


     12
       Lynch’s affidavit states that Triad and Dr. Quansah were each
paid $1,000 “per day” for call coverage, but invoices and canceled
checks included in the record indicate that Triad was paid $1,000 per
twelve hour period whereas Dr. Quansah was only paid $1,000 per twenty-
four hour period.
     13
       We note, however, that Dr. Jeffrey’s letter of September 7, 1997
did not contain a clear proposal for Triad to provide call coverage for
the $1,000 rate. Dr. Jeffrey wrote, “It has also been brought to our
attention that the Hospital has implemented a new payment plan for call
coverage services in the amount of $1,000 per person per call as is
evidenced by its agreement with the other anesthesia group that also
currently provide call coverage to the hospital.” (emphasis added).
This description indicates that Dr. Jeffrey did not have a correct
understanding of the $1,500 stipend arrangement with NTAC.

                                  17
does not dispute that she failed to respond to a call in July 1997 or

that there was over a two hour wait before anyone at Triad responded

to the call.   Dr. Lewis asserts that, at the time of the call, she

was on a planned vacation, that she had notified the hospital that

she would be unavailable, and that the call was only placed as the

result of a clerical error on the hospital’s part.   For the purposes

of summary judgment, we assume that Dr. Lewis’s explanation is true.

But this incident and the two similar incidents that were proximate

in time still support Lynch’s perception that there was a need to

improve call coverage.

      The burden thus shifted back to the plaintiffs to produce

adequate evidence that the hospital’s articulated reasons were

pretextual.    The plaintiffs need not affirmatively show that racial

discrimination was the real reason for the different contract terms;

a jury may usually infer the ultimate fact of discrimination if it is

persuaded that the defendant’s explanation is false.    See Reeves, 120

S.Ct. at 2108.   But, to survive summary judgment, these plaintiffs

had to produce some evidence that Lynch’s explanation was false.      See

id.   This they did not do.   On appeal, the plaintiffs rely simply on

assertions that a jury could find Lynch’s testimony to be false.

Such a finding would indeed be in the province of the jury, but the

plaintiffs do not satisfy their burden by their mere conclusory

assertion of it.   The hospital satisfied its burden of production by

producing Lynch’s testimony.   That evidentiary burden involves no


                                 18
credibility assessments.   Russell, 235 F.3d at 222.

     The hospital also articulated legitimate, non-discriminatory

reasons for awarding the exclusive contract to DFW.    Again, these

reasons were offered primarily through testimony by Lynch,

corroborated by correspondence and documents.    Again, in determining

whether the hospital has satisfied its burden of production, we can

make no credibility assessments.     Lynch explained that a primary

factor in the decision was DFW’s large size and the perception that

the seventy-seven physician group would be the most likely to have

the resources to meet the hospital’s continuing anesthesia services

needs.   During the time he was making the decision about the

exclusive contract, Lynch was aware that Triad had only three

physicians, one of whom was new to the group and another of whom had

a medical condition requiring treatment.    According to Lynch, four

DFW anesthesiologists had been awarded temporary privileges to

practice at the hospital as of October 29, 1997 and, later,

additional DFW physicians were awarded privileges and provided

anesthesia services under the exclusive contract.

     Again, the plaintiffs do not point to any evidence tending to

prove that Lynch’s explanation was false.    The plaintiffs again rely

primarily on a conclusory assertion that a jury could find that Lynch

was testifying falsely.    The plaintiffs concede that DFW had

seventy-seven physicians in its group, but point out that DFW, which

also provided anesthesia services to other facilities, was not



                                19
obligated to put all seventy-seven physicians at the hospital’s

disposal at any one time.   This fact, which, for summary judgment

purposes, we assume to be true, does not negate Lynch’s testimony

that he perceived DFW’s overall size and available resources gave DFW

an advantage in being able to meet the hospital’s anticipated needs.

The plaintiffs do not dispute that DFW already had four physicians

with clinical privileges prior to the effective date of the exclusive

arrangement and that this number was already greater than Triad’s

overall size.    As discussed above, there was evidence that Triad

failed to respond promptly to a call for service in July 1997.

Although we accept as true Dr. Lewis’s testimony that the incident

resulted from the hospital’s clerical error, Triad’s delay in

responding supports Lynch’s contention that Triad’s small size was a

consideration.   A seventy-seven physician group may be better able to

respond in such a situation than a three physician group.

     There was also evidence that, in April 1997, Dr. Lewis was

reprimanded for failure to supervise one of Triad’s certified

registered nurse anaesthetists, in violation of hospital

policies.   In her deposition testimony, Dr. Lewis admitted that

the violation had occurred.   It would not have been unlawful for

the hospital to take such an incident into account when deciding

whether to award the contract to Triad.    Cf. Price Waterhouse v.

Hopkins, 109 S.Ct. 1775, 1784 (1989) (Title VII prohibits

employers from taking certain factors into account when making


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employment decisions, but does not limit other factors that may be

taken into account).

     The plaintiffs, who at all times had the burden of persuasion,

were required to put forth at least some evidence that the hospital’s

explanation was unworthy of credence.     See Reeves, 120 S.Ct. at 2108.

To satisfy their burden of proving intentional discrimination, at a

minimum, the plaintiffs had to combine their prima facie case with

sufficient evidence to find that the hospital’s explanation was

false.   See id. at 2109.   To survive summary judgment, the plaintiffs

had to show that there was an actual controversy over the veracity of

the hospital’s explanation by submitting evidence of contradictory

facts.   See Guillory, 95 F.3d at 1326; cf. Russell, 235 F.3d at 225

(employment discrimination defendants were not entitled to judgment

as a matter of law when plaintiff had produced substantial evidence

countering defendants’ explanation).

                             Conclusion

     These plaintiffs did not have standing to assert Triad’s section

1981 claims.   Even if the plaintiffs did have standing, they did not

produce evidence sufficient to create genuine issues of material fact

and thus survive summary judgment.    Accordingly, the judgment of the

district court in favor of the hospital is AFFIRMED.




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