21-868-cv Ali v. Westchester Medical Center

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of July, two thousand twenty-two.

PRESENT: Pierre N. Leval, Denny Chin, Steven J. Menashi, Circuit Judges. ____________________________________________

Dr. Amro Ali,

Plaintiff-Appellant,

v. No. 21-868-cv

Westchester Medical Center, New York Medical College,

Defendants-Appellees. ____________________________________________ For Plaintiff-Appellant: ROBERT W. SADOWSKI, Sadowski Katz LLP, New York, NY.

For Defendants-Appellees: PAUL F. MILLUS (Daniel B. Rinaldi, on the brief), Meyer, Suozzi, English & Klein, P.C., Garden City, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Cote, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Amro Ali filed suit against Defendants-Appellees

Westchester Medical Center (“WMC”) and New York Medical College (“NYMC”).

Ali alleged that the defendants discriminated against him based on national origin

and age, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000a et seq., and the New York State Human Rights Law (“NYHRL”),

et seq. Following discovery, the district court granted the

defendants’ motion for summary judgment. Ali now appeals. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

2 I

We view the facts in the light most favorable to the non-moving party. Terry

v. Ashcroft,

(2d Cir. 2003). Ali was born in Egypt in 1971 and

received his medical degree in 1995 from Alexandria University in Alexandria,

Egypt. In 1998, Ali passed Step 1 and Step 2 of the United States Medical Licensing

Examination (“USMLE”). It would not be until April 2018 before Ali passed Step

3. Ali eventually moved to the United States, where he worked as an Associate

Research Scientist at New York University School of Medicine (“NYU”) from 2011

to 2015.

In 2015, Ali met Sansar Sharma, a professor of ophthalmology, biology, and

anatomy at NYMC, a nonprofit medical school that shares a campus with WMC

in Westchester County, New York. Around this time, NYMC had been placed on

academic probation by the Accreditation Council for Graduate Medical Education

(“ACGME”) because it did not produce enough scholarly research. To boost

NYMC’s scholarly output, Sharma proposed to Ali that he join NYMC as a

volunteer researcher. According to Ali, Sharma promised Ali a spot in NYMC’s

ophthalmology residency program. Ali also testified that around this time,

3 Thaddeus Wandel, the Resident Training Program Director at NYMC, told Sharma

that Ali would receive a residency position in exchange for his research.

Ali left his paid position at NYU and started volunteering at NYMC in

December 2015 and officially joined NYMC’s faculty in February 2016 as a

volunteer faculty member. He made this career move with the expectation that he

would eventually become an ophthalmology resident at NYMC.

At Wandel’s suggestion, Ali applied for an ophthalmology residency

position at NYMC in November 2016 through “The Match.” The Match is a formal

process in which applicants apply for residency positions at medical institutions

and the institutions rank applicants for selection to their residency programs.

Wandel testified that due to Ali’s poor Step 1 score, Ali would not have passed the

first screening evaluation for receiving an initial interview at NYMC. Using their

influence at NYMC, Wandel and Sharma pushed Ali’s application past the initial

evaluation, allowing Ali to interview for the residency position.

Before Ali’s interview, Wandel “jokingly questioned [Ali’s] ability to wake

up in the middle of the night if he were a resident.” App’x 950. Wandel also stated

that Ali looked older than he really was.

4 After the interview, Wandel informed Ali that he could not rank Ali high on

NYMC’s selection list for The Match. Wandel explained that Eric Rosenberg—the

resident representative—reported that the residents who interviewed Ali thought

that he would not work “smoothly with the group of residents compared to the

other people who are in the applicant pool.” App’x 703. Ali did not match into

NYMC’s ophthalmology program.

In April 2017, a resident in NYMC’s ophthalmology program dropped out,

creating a vacancy for another resident in the program. Ali applied for the vacancy

outside The Match but was rejected. Ali testified that Wandel told him that he

would need to pass Step 3 of the USMLE because Fredrick Bierman, the Director

of Graduate Medical Education at NYMC, required graduates of international

medical schools to pass Step 3 before entering a residency program. Ali took Step

3 in April 2017 but did not pass. He eventually passed Step 3 in April 2018. By that

time, the position had already been filled, and Ali did not receive a residency spot.

II

“We review a district court’s grant of summary judgment de novo and will

affirm if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Loreley Fin. (Jersey) No.

5 3 Ltd. v. Wells Fargo Sec., LLC,

(2d Cir. 2021) (internal quotation

marks omitted). In determining whether there are genuine issues of material fact,

we are “required to resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is sought.”

Terry,

.

Title VII makes it unlawful for an employer to “fail or refuse to hire … or

otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e2. The NYSHRL makes it

unlawful to refuse to hire or employ an individual because of the individual’s age

or national origin.

. Title VII claims are evaluated under the

burden-shifting framework established in McDonnell Douglas Corp. v. Green,

(1973). The same framework generally applies to NYSHRL claims. See

Salamon v. Our Lady of Victory Hosp.,

, 226 n.9 (2d Cir. 2008).

Under that framework, the plaintiff must first establish “a prima facie case of

… discrimination by demonstrating that (1) [he] was within the protected class;

(2) [he] was qualified for the position; (3) [he] was subject to an adverse

employment action; and (4) the adverse action occurred under circumstances

6 giving rise to an inference of discrimination.” Menaker v. Hofstra Univ.,

(2d Cir. 2019). Until the employer provides an explanation for the adverse

employment action, the burden on the plaintiff with respect to showing

circumstances giving rise to an inference of discrimination is “minimal.” St. Mary’s

Honor Ctr. v. Hicks,

(1993); see also Texas Dep’t of Cmty. Affs. v.

Burdine,

(1981). If the plaintiff makes a prima facie case, the

“burden shifts to the employer to articulate a legitimate, non-discriminatory

reason for its policy or action.” Lenzi v. Systemax, Inc.,

(2d Cir.

2019). “If the employer puts forth a legitimate, non-discriminatory justification, the

presumption drops out of the analysis and the plaintiff must establish, by a

preponderance of the evidence, that the employer’s justification is a pretext for

discrimination.”

.

A

We begin with Ali’s claim that the defendants discriminated against him

based on national origin in violation of Title VII and the NYSHRL. This claim fails

because there is no evidence that Ali’s rejection from the residency program

“occurred under circumstances giving rise to an inference of a discrimination”

based on national origin. Menaker,

. The evidence on which Ali

7 principally relies is Bierman’s requirement that graduates of international medical

schools pass Step 3 before beginning their residency. To be sure, this requirement

departs from NYMC’s official policy, which evidently provides that residents

must pass Step 3 by the end of their second year of residency. See App’x 798-99.

But the purported requirement was based on having received a medical education

at a foreign school, not on an applicant’s foreign nationality or origin, and

therefore did not constitute discrimination on the basis of national origin.

B

With respect to age discrimination, the defendants met their burden of

articulating a “legitimate, non-discriminatory reason” for Ali’s poor ranking.

Lenzi,

. The reasons given were that Ali had poor Step 1 scores and

that the residents who interviewed Ali said that Ali would not work smoothly

with the other residents.

Given that showing, the burden shifts to Ali to “establish, by a

preponderance of the evidence,” that the defendants’ justification is a “pretext for

discrimination.”

. Ali has failed to do so. Ali argues that the defendants

fabricated the negative report because Rosenberg, who provided the report to

Wandel, was supportive of Ali’s residency application. But Rosenberg was not

8 communicating his own view of Ali; he was communicating the view of the

residents who interviewed Ali. Rosenberg’s personal support for Ali does not

create a question of fact as to whether the defendants’ proffered explanation is

pretextual. 1

* * *

We have considered Ali’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

1 As further evidence that the defendants’ proffered explanation is pretextual, Ali cites his own deposition in which he testified that Rosenberg told him that “Wandel always lies.” App’x 362. Because such evidence is inadmissible hearsay, Ali cannot rely on it in opposing summary judgment. See Brink v. Union Carbide Corp.,

(2d Cir. 2000) (“[T]he evidence proffered by the party opposing summary judgment must be of a type that would be admissible at trial.”).

9