In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3613

Pravin Sanghvi, M.D.,

Plaintiff-Appellant,

v. 

St. Catherine’s Hospital, Inc., f/k/a 

Lakeshore Health System, Inc., and

St. Mary Medical Center, Inc.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:98-CV-202-TS--Theresa L. Springmann, Magistrate Judge.

Argued May 7, 2001--Decided July 3, 2001

 Before Flaum, Chief Judge, and Ripple and

Diane P. Wood, Circuit Judges.

 Flaum, Chief Judge. Dr. Pravin Sanghvi

appeals the adverse grant of summary

judgment on his 42 U.S.C. sec. 1981 claim

against St. Catherine’s Hospital./1 The

plaintiff contends that he has produced

sufficient direct and indirect evidence

of discrimination to warrant a jury

trial. For the reasons stated herein, we

affirm the district court’s decision.

I. Background

 Dr. Sanghvi, who is dark-skinned and of

Asian-Indian ethnicity, is an

obstetrician/gynecologist licensed in

Indiana. In 1994, he began covering the

practice of Dr. A. P. Bonaventura located

at St. Mary Medical Center, which is

affiliated with St. Catherine’s Hospital,

whenever Dr. Bonaventura was unavailable.

When he covered the practice, Dr. Sanghvi

billed the patients under his own name

and provider number. 

 In October, 1996, Dr. Bonaventura sold

his practice to the defendant, which was

then known as Lakeshore Health System.

After this sale, Dr. Bonaventura received

a salary from the defendant and no longer

had the authority to bill patients

directly; rather, the defendant charged
his patients for his services. Dr.

Sanghvi continued to fill in for Dr.

Bonaventura. Dr. Sanghvi was aware that

Dr. Bonaventura no longer charged

patients himself, and the defendant told

Dr. Sanghvi that he would be paid an

hourly wage for covering the practice,

though apparently no amount was agreed

upon. However, the plaintiff continued to

bill the patients directly under his own

name and provider number. While Dr.

Bonaventura knew this, the executives of

St. Catherine’s did not.

 Dr. Bonaventura’s declining health

prevented him from continuing to perform

his duties in May, 1997. On June 11,

1997, the chief executive officer of St.

Mary Medical Center, Milton Triana, met

with Dr. Sanghvi, who expressed an

interest in purchasing Dr. Bonaventura’s

practice if he were unable to return.

Once Dr. Bonaventura’s inability to

resume treating patients became a

certainty, which was apparently a few

days later, Triana offered to sell the

assets to either Dr. Sanghvi or another

physician who regularly covered the

practice. 

 On June 19, Triana met with Dr. Sanghvi

to discuss the sale of the practice. At

this meeting, Triana asked Dr. Sanghvi:

"Being an older, foreign-born physician,

how comfortable do you feel dealing with

young, white American women?"/2 Triana

also told Dr. Sanghvi that the hospital

did not want to finance the purchase of

the practice.

 The next day Triana wrote a letter

offering to sell Dr. Sanghvi the practice

for $360,000, payable in full at closing.

This letter also indicated the

defendant’s expectation that the

plaintiff would recruit another

obstetrician/gynecologist to provide

greater depth of coverage, though this

was not a requirement of the sale. The

number of women treated by the practice

was important to the defendant because it

expected that these patients would be

referred to it by whomever purchased the

practice. On June 24, Dr. Sanghvi

responded with a counteroffer of twenty

percent of the gross collection of the

practice for the first year after he took

over, to be paid monthly. This was

rejected by the defendant. That same

evening, Dr. Sanghvi and Triana had a
discussion where the doctor offered to

pay $250,000 for the practice in monthly

installments over a one-year period. If

Dr. Sanghvi failed to deliver the

purchase price within the year, then any

the payments he had made would be

refunded. Triana seemed favorably

inclined towards this arrangement, but

said that he had to run it by a

committee. Dr. Sanghvi made the same

offer in writing on June 25. The

defendant eventually rejected this offer.

 Around this same time, in mid-to-late

June, the Women’s Wellness Center ("WWC")

entered the picture. WWC employed a group

of physicians, who were all white men,

and its president at the time was Jeffrey

Yessenow. A representative of WWC

contacted the defendant about buying the

practice. St. Catherine’s responded that

it would sell the practice for $360,000,

with no financing by the hospital. In

early July, the agents of the defendant

and WWC began negotiations. Triana and

other officers of St. Catherine’s met

with Dr. Sanghvi on July 1, informing him

that they intended to sell to WWC since

they were paying cash, but if that deal

fell through they would accept Dr.

Sanghvi’s June 25 offer. On July 3, a

letter of intent expressing the broad

terms of the sale agreement between the

defendant and WWC was drawn and executed.

They settled on a purchase price of

$250,000, to be paid in full at closing.

However, over the coming months WWC

continued to ask St. Catherine’s to

consider a lower price. On July 7, Dr.

Sanghvi was told that the practice had

been sold.

 Dr. Sanghvi sent a letter dated August

2 to some of Dr. Bonaventura’s former

patients, purporting to explain why he

did not take over the practice. The

letter stated that Dr. Bonaventura’s

practice was simply sold to the higher

bidder without regard for any other

considerations. The letter went on to

state that many of Dr. Bonaventura’s old

patients were coming to Dr. Sanghvi’s

office, and asked the recipients of the

letter to share it with any of Dr.

Bonaventura’s former patients. Around the

same time, Triana discovered that Dr.

Sanghvi had billed Dr. Bonaventura’s

patients directly after the defendant

purchased the practice. This allegedly

diverted $38,000 of receivables belonging
to the defendant to Dr. Sanghvi. 

 In part because of these events, by late

September or early October the defendant

acquiesced in a price reduction for WWC

to $125,000. WWC then gave St.

Catherine’s a check for $50,000 with the

remainder to be paid when the paperwork

was formally completed, though the

defendant claimed this check was

accidentally destroyed. On November 1,

WWC took over Dr. Bonaventura’s practice.

 Dr. Sanghvi and Triana spoke by

telephone on November 6. When Triana told

Dr. Sanghvi that the price WWC was paying

for the practice was less than $200,000

and a final agreement had not been

signed, Dr. Sanghvi offered to purchase

the practice outright for up to $200,000

in cash. Triana did not respond. On

January 5, 1998, St. Catherine’s and WWC

executed an asset transfer agreement and

WWC paid the $125,000 purchase price in

full.

 Dr. Sanghvi brought suit in state court

against the current defendant and others,

alleging a violation of 42 U.S.C. sec.

1981 and various state law claims. The

defendant removed the case to federal

court based upon federal question

jurisdiction and brought a counterclaim

seeking damages under state law for Dr.

Sanghvi’s directly billing the practice’s

patients. The defendant moved for partial

summary judgment on all of Dr. Sanghvi’s

claims. The district court granted the

motion on the sec. 1981 cause of action

and some of the state law claims. The

court found that Dr. Sanghvi had not

presented any direct evidence of

discrimination and could not demonstrate

that the defendant’s reasons for refusing

to sell the practice to him were

pretextual. Having disposed of the

federal claim, the district court

remanded the remaining state laws claims

to state court.

II. Discussion

 42 U.S.C. sec. 1981 prohibits

intentional discrimination on the basis

of race or ethnicity concerning an

activity protected by the statute. Saint

Francis College v. Al-Khazraji, 481 U.S.

604, 613 (1987). Making a contract is

such a protected activity, and Dr.

Sanghvi claims that the defendant refused
to sell him Dr. Bonaventura’s practice

assets because of the plaintiff’s race.

Dr. Sanghvi can proceed under either the

conventional method of proof or under the

burden-shifting method, Von Zuckerstein

v. Argonne Nat’l Lab., 984 F.2d 1467,

1472 (7th Cir. 1993), and he has elected

to use both. Our review of the district

court’s grant of summary judgment is de

novo. Id. at 1471. 

A. Conventional Method

 Dr. Sanghvi argues that Triana’s

question during their June 19

conversation--"Being an older, foreignborn physician, how comfortable do you

fell dealing with young, white American

women?"--constitutes direct evidence of

discriminatory intent. Dr. Sanghvi

contends that when this interrogatory is

combined with circumstantial evidence,

such as that the defendant rejected his

November 6 offer to pay more money than

WWC and that WWC was allowed to take over

the practice without paying the full

purchase price, he has made a sufficient

case to reach a jury. St. Catherine’s

disputes the characterization of Triana’s

query as direct evidence, since the words

themselves do not show a discriminatory

animus and thus the jury would have to

draw an inference from the statement to

find that the defendant violated sec.

1981. It also argues more generally that

summary judgment was properly granted

because no reasonable jury could return a

verdict for Dr. Sanghvi.

 Courts have noted the difficulty of

defining direct evidence for

discrimination claims. See, e.g.,

Fernandes v. Costa Bros. Masonry, Inc.,

199 F.3d 572, 581-84 (1st Cir. 1999);

Tyler v. Bethlehem Steel Corp., 958 F.2d

1176, 1183 (2d Cir. 1992). Our own

statements on what constitutes direct

evidence are not in complete harmony. One

line of cases holds that "[d]irect

evidence essentially requires an

admission by the decision-maker that his

actions were based on the prohibited

animus." Radue v. Kimberly-Clark Corp.,

219 F.3d 612, 616 (7th Cir. 2000); see

also Hemisphere Bldg. Co., Inc. v.

Village of Richton Park, 171 F.3d 437,

439 (7th Cir. 1999); Kennedy v.

Schoenberg, Fisher & Newman, Ltd., 140

F.3d 716, 722 (7th Cir. 1998). Under this

definition, Dr. Sanghvi has not produced
any direct evidence of discrimination

since Triana’s query clearly is not an

admission. However, other cases hold that

"[r]emarks and other evidence that

reflect a propensity by the decisionmaker

to evaluate employees based on illegal

criteria will suffice as direct evidence

of discrimination even if the evidence

stops short of a virtual admission of

illegality." Walker v. Glickman, 241 F.3d

884, 888 (7th Cir. 2001) (quoting Miller

v. Borden, Inc., 168 F.3d 308, 312 (7th

Cir. 1999)); see also Sheehan v. Donlen

Corp., 173 F.3d 1039, 1044 (7th Cir.

1999); Venters v. City of Delphi, 123

F.3d 956, 973 (7th Cir. 1997). Triana’s

question might be direct evidence under

this broader understanding, since the

question can be read as indicating

Triana’s concern over whether Dr.

Sanghvi, as a non-white physician, will

be able to form doctor-patient

relationships with white women. Cf.

Sheehan, 173 F.3d at 1044-45 (holding

that statement that woman was fired so

she could "spend more time at home with

her children" was direct evidence of

discrimination on the basis of

pregnancy).

 While we acknowledge the tensions in our

case law on this issue, we will assume

without deciding that the broader

definition of direct evidence applies and

that Triana’s question falls within this

definition. Besides having a certain

degree of content that reflects

discriminatory animus, we have held that

to qualify as direct evidence a statement

must also be made by a decisionmaker, as

well as relate to the action at issue.

See Fyfe v. City of Fort Wayne, 241 F.3d

597, 602 (7th Cir. 2001); Hunt v. City of

Markham, Ill., 219 F.3d 649, 652 (7th

Cir. 2000). While the parties do not

discuss the two conditions, these appear

to be satisfied as well, since Dr.

Sanghvi alleges that Triana as CEO of St.

Mary controlled whom the practice would

be sold to, and the query at issue was

asked in the course of a discussion on

the sale of the practice. Thus, for

purposes of this case, we accept that Dr.

Sanghvi has produced what may be labeled

direct evidence.

 However, the plaintiff is not out of the

woods yet. Even in discrimination cases

where the plaintiff has direct evidence,

an adverse grant of summary judgment may
be proper. Davis v. Chevron U.S.A., Inc.,

14 F.3d 1082, 1086-87 (5th Cir. 1994)

(per curiam); FDIC v. Henderson, 940 F.2d

465, 473-74 (9th Cir. 1991)./3 This

follows from Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248-52 (1986), which

held that a grant of summary judgment

against the non-moving party is

appropriate, even where that party has

produced some evidence, if no reasonable

jury could return a verdict in his or her

favor. See also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp, 475 U.S. 574,

587 (1986)./4 While a grant of summary

judgment against the plaintiff should be

rare when he or she has evidence that

could be characterized as direct, cf.

Venters, 123 F.3d at 973 n.7, in a few

select cases a review of the record as a

whole may reveal that the evidence is "so

one-sided that [the defendant] must

prevail as a matter of law," Anderson,

477 U.S. at 252, at least where the

purportedly direct evidence is not an

actual admission. We conclude that this

is such a case. Once the mass of

uncontradicted evidence described below

is taken into account, Triana’s query is

no more than a scintilla of evidence of

racial discrimination and insufficient to

permit a reasonable jury to return a

verdict for Dr. Sanghvi./5

 As briefly explained above, Triana’s

interrogatory is evidence of racial

discrimination, since it suggests that

Triana believed that Dr. Sanghvi could

have difficulty forming patient

relationships with white women because of

his race. However, all of the other

facts, which are basically undisputed,

point to the conclusion that Dr.

Sanghvi’s ethnicity played no role in the

defendant’s decision to sell the practice

assets to WWC. Triana made the initial

offer to sell to Dr. Sanghvi in the days

following June 11, prior to asking the

potentially discriminatory query. After

asking the question, Triana made a formal

offer to Dr. Sanghvi on June 20. The

terms of this initial offer were exactly

the same as the defendant’s opening

position with WWC: $360,000, with no

financing by the hospital. Triana then

began negotiating in apparent good faith

with the plaintiff. However, Dr. Sanghvi

was unwilling or unable during June or

early July to meet St. Catherine’s

requirement that the purchase price be

paid in full. Even despite this fact, on
the evening of June 24, Triana seemed

favorably inclined to accepting an offer

by the plaintiff which called for

financing. Furthermore, Dr. Sanghvi was

informed on July 1 that if a deal with

WWC could not be worked out, the

defendant would sell the assets to him on

the terms laid out in his June 25 letter.

All of this evidence shows that the

defendant was perfectly willing to sell

Dr. Sanghvi Dr. Bonaventura’s practice on

the same terms as it would to any other

buyer.

 Indeed, given the July 1 conversation,

the only reason that the sale was not

made to Dr. Sanghvi was because of the

appearance of a purchaser with a better

offer, WWC. In July, WWC was willing to

meet the no-financing condition of the

hospital, unlike Dr. Sanghvi. The

plaintiff complains that in the end WWC

did not actually satisfy this condition,

since it took over the practice on

November 1, 1997 and did not pay in full

until January 5, 1998. However, the

record provides no indication that the

defendant would have refused to let Dr.

Sanghvi assume running the practice

before his potential deal with the

defendant was final, so long as the full

payment price was tendered at the

closing. Also, while both WWC and Dr.

Sanghvi were offering the same price,

$250,000, WWC’s offer was clearly

preferable from the defendant’s

perspective. Dr. Sanghvi’s June 25, 1997

offer provided that all of the payments

toward the $250,000 price would be

refunded if he did not complete the

twelve monthly installments. Thus, Dr.

Sanghvi potentially could form valuable

relationships with Dr. Bonaventura’s

former patients over an eleven month

period, then claim he was unable to make

the last payment, have all of his money

returned, and be able to lure away a

significant number of the patients to his

own practice. This could have left the

hospital with a greatly devalued asset,

since other potential buyers would be

unlikely to pay much for a practice with

few regular patients, and no money to

show for this depreciation. By contrast,

WWC’s offer did not impose this risk on

the defendant since it would be paying

all of the money at once and the payments

could not be refunded. Finally, the

defendant’s June 20 letter demonstrated

its concern about the limited resources
Dr. Sanghvi could provide as a sole

practitioner. By contrast, WWC, as a

group of obstetrician/gynecologists,

could provide much broader coverage and

thus increase the revenues of the

hospital through referrals.

 In short, even if Triana’s question

might possibly be understood as

suggesting some concern over the

plaintiff’s race, the surrounding facts

demonstrate that St. Catherine’s refusal

to sell to Dr. Sanghvi was not motivated

by racial or ethnic considerations, and

no reasonable jury could find otherwise.

We note that our decision is consistent

with Davis, which affirmed a grant of

summary judgment where an interviewer

asked a female job applicant a "question

concerning [her] ability to supervise and

handle disputes with and among men," 14

F.3d at 1086, an interrogatory obviously

quite similar to Triana’s.

 Dr. Sanghvi also contends that the

rejection of his November 6 offer, which

he claims was more favorable than WWC’s

because he was willing to pay a higher

price, sufficiently supports his claim of

discrimination to send the case to a

jury. However, we have determined that

Triana’s negotiations with Dr. Sanghvi in

June allay any supposition that Triana’s

actions were motivated by an

impermissible animus, and that conclusion

carries over to the rejection of the

November 6 offer. Furthermore, by

November the defendant had additional

reasons not related to race or ethnicity

for rejecting Dr. Sanghvi’s offer. First,

the defendant feared litigation with WWC

for breach of contract if it suddenly

ejected WWC from Dr. Bonaventura’s

practice after agreeing to an outline of

the terms on which the practice would be

sold in July. Second, Dr. Sanghvi’s

August 2 letter showed antagonism toward

the defendant, creating questions as to

whether he would be as willing to refer

patients to the defendant as WWC. Third,

Dr. Sanghvi’s allegedly impermissible

direct billing when he filled in for Dr.

Bonaventura had been discovered. Since

St. Catherine’s was later to file a

counterclaim against Dr. Sanghvi for the

amount of this direct billing, the

defendant understandably did not want to

depend for referrals on a doctor with

whom it would soon be in litigation.

Given all of these additional reasons for

rejecting the November offer, we conclude
that no reasonable jury could find that

the defendant acted with discriminatory

intent at that time.

B. Burden-Shifting Method

 Under the frequently applied burdenshifting method established by McDonnell

Douglas Corp. v. Green, 411 U.S. 792

(1973), the plaintiff must establish his

or her prima facie case, then the

defendant must articulate one or more

legitimate, nondiscriminatory reasons for

its action, and finally the plaintiff has

an opportunity to show that the

defendant’s reasons are pretextual. Texas

Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 252-53 (1981). While we do

not underestimate the importance of

requiring a plaintiff to satisfy the

first step, see Coco v. Elmwood Care,

Inc., 128 F.3d 1177, 1178 (7th Cir. 1997)

("emphasiz[ing] that the prima facie case

under McDonnell Douglas must be

established and not merely incanted"), we

will skip to the question of pretext, in

part because of the lack of a well-devel

oped list of elements for a prima facie

sec. 1981 case outside of the employment

context.

 The defendant argues that it did not

sell to Dr. Sanghvi because a better deal

was presented by WWC. This is a

legitimate reason for refusing to sell

the practice assets to the plaintiff and

Dr. Sanghvi cannot show that this reason

is pretextual. The explanation for this

conclusion tracks part of our discussion

of why Dr. Sanghvi’s direct evidence does

not present a genuine issue of material

fact, and so we will only briefly list

the reasons supporting the defendant’s

sale to WWC rather than the plaintiff. In

July, WWC offered to pay the defendant in

a lump sum, something that the hospital

had insisted upon and that Dr. Sanghvi

could not do. Selling to WWC also

increased the number of referrals that

the hospital was likely to receive, since

WWC was a group of physicians rather than

a sole practitioner like Dr. Sanghvi.

WWC’s deal also did not have the refund

provision contained in the plaintiff’s

June 25 offer.

 Nor can Dr. Sanghvi show that the

defendant’s reasons for refusing to

accept his offer on November 6 are

pretextual. The defendant legitimately
was concerned about being sued for breach

of contract if it reclaimed the assets

from WWC. The hospital could have still

preferred WWC, even though it was

offering less money, because its greater

number of doctors would lead to more

referrals and thus greater revenue for

the hospital in the long run. Also, the

discovery of Dr. Sanghvi’s billing

practices when he was filling in for Dr.

Bonaventura and his August 2 letter,

which was hostile to the defendant and

seemingly an attempt to lure away Dr.

Bonaventura’s former patients to his

practice, indicated that the defendant

was unlikely to receive many referrals

from the plaintiff if it sold him the

practice.

III. Conclusion

 We assume for purposes of this case that

Triana’s question falls within the outer

ambit of direct evidence of racial

discrimination. However, the other

undisputed evidence prevents any

reasonable jury from concluding that the

defendant’s decision to sell Dr.

Bonaventura’s practice to WWC rather than

Dr. Sanghvi was motivated by racial or

ethnic discrimination. Likewise, under

the burden-shifting method Dr. Sanghvi

cannot cast sufficient doubt on the

reasons for the defendant’s refusal to

sell the practice to him to raise a

triable issue as to pretext. Therefore,

the district court’s decision is Affirmed.

FOOTNOTES

/1 St. Mary Medical Center, though named as a defendant in the original suit and included in the

notice of appeal, was dismissed from this action

by order of the district court on June 10, 1999

as per the parties’ stipulations.

/2 Triana denies asking this question, but since the

district court granted summary judgment to the

defendant, we resolve all factual disputes in

favor of Dr. Sanghvi. Ghosh v. Indiana Dep’t of

Envtl. Management, 192 F.3d 1087, 1094 n.2 (7th

Cir. 1999).

/3 Contrary statements appear in some cases. For

example, Cardona Jimenez v. Bancomerico de P.R.,

174 F.3d 36, 40 (1st Cir. 1999) and Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d

17, 24 (1st Cir. 1998), both Age Discrimination

in Employment Act cases, opine that where a

discrimination plaintiff has direct evidence, the
case may be put to the fact finder "without

further ado." However, these single, isolated

statements are both clearly dicta, since direct

evidence was not present in either case. Eisenberg v. Insurance Co. of N. Am., 815 F.2d 1285,

1289 (9th Cir. 1987), a diversity contract case,

states that "if the non-moving party adduces

direct evidence of a genuine issue of fact . . .

[the case] is to be submitted to the trier of

fact for resolution." However, this statement

conflicts with the Ninth Circuit’s later decision

in Henderson, which provides the most thorough

discussion of the issue which we have found. To

the extent that other decisions conflict with our

holding, we decline to follow them, largely for

the reasons explained in Henderson, 940 F.2d at

474.

/4 Of course, if the non-moving party has presented

sufficient evidence to permit a reasonable jury

to find for him or her, then a court cannot weigh

the evidence on summary judgment and the motion

must be denied. See Anderson, 477 U.S. at 255.

/5 We hold that no reasonable jury could find that

racial animus was a motivating factor of the

defendant’s decision. However, even if this were

not so, another barrier possibly exists to Dr.

Sanghvi’s recovery. Before the Civil Rights Act

of 1991 ("CRA") was passed, an employer could

escape all liability under Title VII or other

federal anti-discrimination laws where the plaintiff presented sufficient evidence for a jury to

conclude that impermissible animus was a motivating factor in the decision if the employer could

demonstrate that it would have taken the same

action for legitimate reasons alone. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The CRA

amended Title VII so that in such cases a plaintiff need only show that an illegal criterion was

a "motivating factor" of the defendant’s decision

in order to obtain relief, 42 U.S.C. sec. 2000e2(m), though his or her recovery will be limited

if the defendant can show that legitimate reasons

alone would have led to the same action, 42

U.S.C. sec. 2000e-5(g)(2)(B). However, Dr. Sanghvi’s claim is under sec. 1981 rather than Title

VII. At least one circuit court has held that the

framework of Price Waterhouse, rather than 42

U.S.C. sec. 2000e-2(m), continues to apply to

sec. 1981 claims. Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357

(11th Cir. 1999). If this is correct, then even

if Dr. Sanghvi could raise a genuine issue of

fact as to whether the refusal to sell the

practice to him was racially motivated, St.

Catherine’s would be relieved of all liability if

it could show that it would have taken the same

action because of WWC’s offer even in the absence

of any discriminatory animus. However, since we
conclude that Dr. Sanghvi does not raise a genuine issue as to whether the defendant’s refusal

to sell the practice to him was motivated in part

by racial bias, we need not reach this issue.