my name is collin good i am representing the plaintiff appellant dr michael simpson who is in attendance today plaintiffs asserts that the district courts were granting summary judgment to the defendant should be reversed for the following three reasons first the district court improperly disregarded the evidence in direct or to excuse me direct evidence as well circumstantial evidence the defendant based its decision to reject or threaten to reject his application for medical privileges based on his race let me just ask you this i mean i'd gather that the licensing boards decision to require an oral examination struck the committee members as being highly unusual i mean now would a conscientious employer want to track down the reason why the board insisted on something that really looks like an unusual sta well your honor as it relates to the requirement for the plaintiff to sit for an oral exam prior to receiving his unrestricted licensure he received the understated lesson sure the next day we know review this court needs to draw all inferences on behalf of the plaintiff a power the defendants subjective concerns regarding his need to sit for an oral exam should not be credited  and in fact on the phone call prior to the day that mr simpson dr simpson withdrew his application for medical privileges dr erik miller who was an ex officio member of the credentials committee and a voting member of the chair in fact of the medical executive committee doesn't mention in the three page typewritten explanation provided by defendant as that being a source that is to say that the or exam was not a source of concerns during the conversation twenty four hours before the credentials committee was set to potentially reject his application so you wouldn't think that th flag considering that dr simpson received the license or the next day and it was unrestricted and he had previously received two other states certifications that he was holding unrestricted licensure would not give me pause but then again i would say that under the perp under the standard of review any type of reasonable inference in favor of the nonmoving party in this case dr simpson should not be resolved by a court instead it should be resolved by a jury that these were jury questions and credibility determinations which under the u s supreme court's holdings in both reeves and liberty  lobby really make it an issue before a jury to decide oh that was not the only circumstantial evidence that the district court ignored in reaching its conclusion that summary judgment was warranted for the defendant to reject dr simpson's application for medical privileges this is the type of circumstantial evidence that this court has consistently said it's going to be having great difficulty seeing that there is a negative inference from comments like they would expect an applicant to be on their best behavior and he should find a place where he's a good fit that's i just i don't see how do you get  sure well given the context dr erik miller called twenty four hours before the credentials committee was set and told the plaintiff here dr simpson that they would look very possible  to both the abrams and patrick ridge both the second and the fifth circuit indicating that this type of better fit language is maybe doesn't speak directly to an inference it's not an admission by the employer that they're taking an action a negative action because of it you'd like to have physicians who are a good fit with the practice who are good fit with the hospital last you would like to have physicians that act on their best behavior when they're on staff or others patients especially how does it become i just can't see that well it's the inference it's a better fit is could be that he doesn't work well with colleagues but it also could be that he doesn't work well or that excuse me that the first inference is that he isn't going to be a good fit but why is he not a good fit and it could be a not a good fit because of his inclusion in a protected class now dispense oh let's say miller had said we only want the best doctors we shouldn't for that means we only want caucasian doctors had i just don't see how you think you stretch too much for those in places sure that your direct is not exist well your honor again it's the inference that it raises and it's our argument that the district court shouldn't have resolved in this court need not resolve whether that type of inference being reasonable as we believe it is as so too does the second in the fifth circuit is potentially about plaintiff's race and potentially speaks to the reasons why the defendant was going to reject his application for  medical privileges in fact it does appear and it's not credited in the district court's opinion that beginning in march dr kimberly miller who who is the chief executive officer of the revamped community hospital wrote an e mail in which she said specifically in reference to dr simpson if they are not upfront with us about all outstanding items then we need not we need to have a clause to exit the discussions without any issue if we decide to and then a number of ellipses at the point that we discover something it appears that the were always going to go fishing for some reason to reject dr simpson and as an issue in a statement such as whether he was could be a better fit elsewhere coupled with the context of the conversation this took place  during a conversation in which dr eric miller was explaining to dr simpson the reasons why they didn't believe that he was supposedly unqualified for his position this was a  conversation that ostensibly ended his potential for employment it was at the time the comments were made both as it relates to his qualifications but then also telling him that he wasn't qualified enough and so for that reason it appears that at least from our perspective that it suggests a prohibited racial incident since this also then speaks to some of the other circumstantial evidence so not only ambiguous oral written statements well that more your it were both great i'll just finish this one particular place and then reserve it thank you your honor the other circumstantial evidence of spoke specifically to that he had been replaced by a similarly situated employee and that in fact other white employees were made physicians while he was not i will reserve the remainder of my directly involved in that incident and she sits as a non voting member on the credential committee and was attendance at the odds a time or twenty fourth meeting and in contact i think there's a statement of dr eric miller's declaration no none of them are related obviously it's a common name and we read in wisconsin i just want to speak to a couple of points unlike some of the summary judgment cases that the court sees on employment discrimination and there really is no dispute at all on the factual underpinnings of the need that it that dr simpson had to take an oral exam and he was the only one that the credential committee had experienced in that regard was the hospital as as a prospective employer not able to ask the state licensing board directly like why it was insisting on this oral exam shortly after the september twenty fourth meeting where they tabled his application they wrote the wisconsin licensing board as well as wrote dr simpson for an explanation yes to why there was the need to take an oral exam and wisconsin never responded to us not to this day not to this day the other criteria or element that that was looked at by the committee was the fact that dr simpson had to be placed on academic probation during his residency again no dispute that that fact happened in addition to the two uninsured malpractise claims that were pending at the time of his application and no dispute that they were pending that he was a defendant and he was uninsured for those claims and then there's no about the state of mind of the credential committee chair all that stuff is is there the real dispute is well gee credential committee people you should evaluate it the way you do you should take my explanation and accept and all the bio if you look at the bylaws carefully by i want to say here's the minimum stuff we're looking for to be eligible to apply for credentials at our hospital and practice medicine and beyond that then it's a sifting process and what steps if thing process for judge henderson has to see whether you're a good fit it's the conclusion of the process and if you look at the case in the patrick case the second those cases where is where the employer asked why didn't i get picked why didn't they get hired and there was a short but sweet you weren't sufficiently suited you didn't fit in that's nowhere near the case in our case it's there was that all this interaction build up exchange of information dr eric miller took the time to call dr simpson and spent forty five minutes on the phone with him explaining to him as to what a twelve thousand dollars yes the other the other interesting fact in the case is kim miller the c e o made the decision to offer him an employment contract which is a three year employment contract right away that  modifies the at will doctrine and obviously knew his race when she offered the job to him and paid the twelve thousand dollars to twelve thousand dollars recruiting fee to find this candidate shift over to the credential process which is an independent separate committee in the hospital are they investigating i mean what were you paying them twelve thousand dollars for just to find the candidate realigned are actually a recruiting fee they call them headhunters but they don't like to be called that hurts their recruiters and they they provide resumes they do simply marry checking in terms of meet matching the candidate's qualifications with your needs  pay for the what are we going to how to enter he goes and looks they go look for write write and and there's a selected group and if we end up hiring the candidate yes and we paid the twelve thousand dollars and we didn't get a refund for no medical schools near beaver creek and you don't have a population of doctors that are coming and going right in their writers and works as you can see from the hiring of dr flood and the other individuals they cite as compared we're expanding and therefore the proper the they call it professional review process that's contained in the bylaws the bylaws or term that dr simpson agreed to in his employment contract he agreed that those the one that was the way we're going to handle credentials and by withdrawing his application short circuited the process it's a little ironic that they kind of critique this phone call that we have and try to give them a heads up before we put something in writing we are trying to do a favor but it's kind of like you he did it to himself he didn't want to go through with  it might have been changed but we don't know so one of the one of the arguments the district well i mean your summary judgment purposes why why would that be treated as an adverse employment decision given that he was of his employment application it could be in the normal employment case but when you agree to the bylaws you agree to the credential process through the production committee the medical record of committee and the board of the hospital that's th process and we set a case that involved tenure of a college professor and that's the process you agreed to if you pull your application to requests for tenure there's no decision made we have a nine decision here yes we gave the hot heads up we said hey they're leaning this way but you don't have a decision per the bylaws which was agreed to by dr simpson until there's a vote and there was no vote it seems an awful lot like struck just charged to be essentially saying if you don't if you don't quit will fire you but if it's a hiring case where i mean we don't want you with you don't withdraw your application were rejected but it's from a person that has no vote on the committee and that's what i agreed traditionally in a traditional hiring our  race based decision as i mentioned the whole vetting process whether it's for employment her credentials that's what's the proper procedure the process is the see whether they're going to fit in under the multiple qualifications and requirements of the job  colleagues that he worked with in the in terms of other professional colleagues so that's i think that i think that judge crabb mentioned that's pretty typical employee only will list the reference or an appl of reference that they're going to say something positive about them and one of the quality health care quality improvement act this peer this professional review process is designed for us to allow us to give us some immunity to get into the the nitty gritty and find out you know all the information you need before you license the doctor and prevention a doctor at a hospital that's all i have unless there's any further questions thank you honor as it relates directly to whether an adverse employment action took place we know it at the outset that it does seem to be a difference of opinion of whether in fact our my client in fact suffered an adverse employment action the court should take note that plaintiff after he withdrew his application emailed to the c e o can really miller and requested that she consider their contract active and binding now he did so because he said the only reason why he would withdraw it was because dr erik miller had said that his proposal his application for medical privileges was going to be rejected so at the very least there is some dispute whether an adverse employment action took place this court has said previously that it need not reach that issue however if the employer has advanced evidence of a legitimate nondiscriminatory business reasons i'm one of the factors that we've been talking about so far has been whether the negative reference also played a role in the defendant's rejection of dr simpson specifically that we have contested that that is a hearsay statement but it's worth repeating that the type of credibility determination at issue there whether in fact he was qualified is not properly before this court and need not be resolved by the court it's an issue for the jury to resolve  it relates to the medical malpractise and the recruiter and the medical malpractise was information that the employer had since he submitted his application six months prior to his rigid the rejection or threatened rejection of his application  similarly the academic probation on which he was placed ten years earlier doesn't speak to the defendant's bylaws and specifically whether his current medical competency was such that he wasn't qualified  i think it's also worth restating again as a relates to the better fit comments is that the inference here is that it could have been about race certainly it can speak towards whether he was going to be a good fit but a better fit argument