Medical Residency National Origin (Egyptian) Discrimination Claim Dismissed

In Ali v. Westchester Medical Center et al, 2021 WL 1022615 (S.D.N.Y. March 17, 2021), the court, inter alia, granted defendants’ motion for summary judgment and dismissed plaintiff’s national origin discrimination claim.

From the decision:

Summary judgment is granted as to Ali’s claim of discrimination based on national origin. Ali has not established a prima facie case of discrimination based on national origin. Ali’s evidence satisfies the first three factors of the test: he is within a protected class, has demonstrated he was qualified for a residency position, and was subject to an adverse action when he was not hired for a residency position. But the circumstances surrounding the adverse action do not give rise to an inference of discrimination based on national origin. Ali has offered no evidence that NYMC declined to hire him for a residency position because he is Egyptian or, more broadly, because he was born abroad.

Even if Ali had established a prima facie case of discrimination based on national origin, the defendants have articulated legitimate, non-discriminatory reason[s] for failing to hire Ali. Hutcheson — the new Director of Ophthalmology at WMC and Chair of Ophthalmology at NYMC — had previously worked with Al-Shweiki, who received the residency position. The evidence provided by the parties is that Hutcheson chose to hire Al-Shweiki because she knew him. Ali concedes as much in his deposition. Additionally, the defendants explain that Al-Shweiki received higher scores on his USMLE tests than Ali. This, combined with Hutcheson’s previous work with Al-Shweiki, provides an ample non-discriminatory reason for hiring Al-Shweiki over Ali. Indeed, anti-discrimination law does not make defendants liable for doing stupid or even wicked things; it makes them liable for discriminating. A challenge to the correctness of an employer’s decision does not, without more, give rise to the inference that the adverse action was due to discrimination.

The defendants having put forth non-discriminatory justifications for their actions, the burden shifts back to Ali to raise a question of fact that the defendants acted with discriminatory intent. Ali has not done so.

Ali emphasizes one argument in opposition. He argues that the irregularities in the selection of Al-Shweiki instead of him for the residency position in 2018 create grounds to believe that he was discriminated against because he was Egyptian. Those irregularities principally include Bierman’s requirement that Ali pass step 3 of the USMLE before the beginning of the residency, Ali’s superior qualifications from his years of experience when compared to Al-Shweiki’s qualifications, and the questionable authority of Hutcheson to install “her hand-picked candidate”. Ali argues that the fabricated requirement that IMGs pass the USMLE before their residencies is particularly strong evidence of discrimination given an email from an attorney at the ACGME stating that if NYMC “is treating IMGs and [American Medical Graduates] differently, that may fall under the requirement regarding policies to prevent harassment.”

The parties dispute whether NYMC actually has a policy of requiring IMGs to pass step 3 of the USMLE before entering a residency. But even assuming NYMC has this requirement, such a policy is not evidence of national origin discrimination because it discriminates based upon where the applicant received a medical education, not upon the national origin of the applicant. This may violate the ACGME’s policy against imposing more onerous requirements for its examinations on graduates of foreign medical schools, but it does not violate the federal or state laws forbidding discrimination in employment. Graduation from a foreign medical school does not create a class of persons protected by Title VII or the NYSHRL.

The other irregularities in the appointment process to which Ali points fare no better. Whether Hutcheson should have had the power to make the appointment or not, it is undisputed that she did make it. And whether Ali is more qualified than Al-Shweiki for the position of resident when experience and certain other qualities are considered is not the test. The issue is whether Ali has presented sufficient evidence to raise a question of fact that the selection of Al-Shweiki for the residency instead of Ali was made, at least in part, because of intentional discrimination against Ali due to his national origin. Ali has failed to provide such evidence.

[Citations and internal quotation marks omitted; emphasis added; cleaned up.]

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