B. Doe, M.D., on Behalf of B. Doe and B. Doe's Patients v. St. Joseph's Hospital of Fort Wayne

completely away patient from whose [the RIPPLE, and Before CUDAHY Circuit room she had member of entered] SWYGERT, Circuit Judges, and Senior family.” her Judge. requested meeting Doe of the Execu- CUDAHY, Judge. Circuit summary tive Committee to discuss her suspension. The Executive no- Committee The district court for the Northern Dis- plaintiff by February letter dated tified appellant’s Indiana dismissed trict of 10, 1983, “[unanimously upheld that it had complaint for failure to state a amended summary suspension modifi- without [her] granted. relief could be claim which cation.” The letter further advised her complaint arose from the defendant The complete physical, that she would have physician’s hospital’s revocation psychological psychiatric and examinations part privileges. We affirm and staff Phy- successfully complete a “certified part. and remand in reverse Re-Training reap- Program” sician before privileges in the future. None plying for I. hospital by- these are Doe, physician, B. is a appellant, The laws, they uniformly required of nor are practice in Indiana. is en- licensed to She seeking privileges at the physicians staff Wayne, gaged general practice in Fort hospital. and is a Indiana. She was born Korea suspen- sought review of her appellees She then citizen of the United States. Directors, perhaps as by the Board of Joseph’s Hospital, located in Fort sion are St. May she owner, early as March 1983. In corporate its board of Wayne, its hospi- directors, administrator, orally by counsel for the the President was advised its re- suspension not be its tal that would Medical Staff and the members of of its voked. of the Medical Staff Executive Committee Committee”).

(the “Executive 21, 1983, complaint Doe filed a on June 1981, Ti- alleging under 42 U.S.C. Joseph’s granted Doe claims August 1982 St. § 1964, 42 Rights Act of of the Civil privileges. began to tle VI She associate 2000d, Act, 15 U.S.C. the Sherman In a U.S.C. care for there. admit and § her com- She amended and state law. January the adminis- letter dated § 15, 1983, to add claims plaint on December her that her notified trator Rights dismissal, of the Civil Act of sponte VII district court’s sua 2000e-2(a)(l), 1964, 42 U.S.C. and the without parties notice to the and without Act, 42 U.S.C. 300S-6.1 affording Hill-Burton them an to be heard. declaratory injunctive plaintiff seeks allegations We must take the in the com- relief, attorney’s fees. damages plaint them, along be true and view the reasonable inferences to be drawn from a motion The defendants filed for sum- them, in light most favorable to the 5, 1983, August mary judgment on plaintiffs. Racine, City Ellsworth v. process argued the due clause of (7th Cir.1985);’ Powe v. did apply the fourteenth amendment City Chicago, 664 F.2d Joseph’s private hospital. is a because St. Cir.1981). A should be dismissed rule The district court did not on the mo- failure to state a ap- if it tion. The defendants then filed a motion to pears beyond doubt that subject jurisdic- matter dismiss for lack of prove any unable to set of facts that would 21, September They argued tion on plaintiff Ellsworth, entitle the to relief. subject juris- that the court lacked matter 184; 774 F.2d at Cady, Benson v. 761 F.2d diction because the had failed to Cir.1985). 335, A need exhaust her administrative remedies.2 The not set out in detail the upon facts which a district court never addressed this issue. based, claim is allege but must sufficient 20, 1983, On December the defendants facts to outline the cause of action. Ells- Complaint moved to dismiss the Amended worth, 184; Benson, at F.2d 761 F.2d Complaint for failure to serve the Amended at 338. attorneys. on either or their the defendants by

This motion also was never ruled on sponte Sua dismissals for failure to district court. upon state a claim may which relief be After a number of settlement confer- granted permitted, are long so as a suffi negotiations ences and extensive between cient basis the court’s appar action is parties, court district dismissed the plaintiff’s ent from the pleading. See Flo action sponte.3 sua None of the issues ra v. Home Federal Savings & Loan Asso sponte involved the sua dismissal had ciation, 209, (7th Cir.1982); 685 F.2d by been raised the defendants. The trial (Lebanon) S.A.L., Tamari v. Bache & Co. notify court did not either side that it was 1194, cert. issues, considering these nor did either side denied, 905, 435 U.S. 98 S.Ct. any file briefs the district court address- (1978); see also Merrill Ten ing these issues.4 ant v. United Department Council States (HUD), Housing Development & Urban

II. (7th Cir.1981) (discuss 638 F.2d Tamari, appeal ing The issues on are the reaching suffi but not the issue ciency propriety of the and the sponte whether sua dismissal without no- appeal sought by 1. The does not the dismissal of review the Board of Directors after the Hill-Burton Act claim. ten-day period and that counsel for the hos- pital orally summary informed later that the apparently appeal 2. Doe did not the Executive suspension would not be revoked. days Committee’s recommendation within ten required by by-laws. as claims, however, She incorrectly district court’s order stated notifying that the letter her of that the defendants had made a motion to dis- the Executive Committee’s recommendation miss for failure state a claim filing appeal, failed to note the deadline for granted relief could be and that the had copy by-laws and also failed to include a responded to this motion. dealing Further, appeals, required by by-laws. argues appeal she must be action, 4. As of the time of the dismissal of this requested days following receipt within ten full Doe did not have recommendation, and that the letter of however, did, hospitals Wayne. in Fort She 10, 1983, February was not in the form of a applications pending hospitals. at two have alleges recommendation. She also that she plaints argue against heard violates tice or an the dismissal.5 proce- Tingler, for this 716 F.2d at 1111. process). due The reason “proper adminis- approach dural is that the permit At least four circuits do not sua requires judge that a trial justice tration of sponte dismissals without notice and an proceed- control over the have substantial opportunity to be heard. See Morrison v. Flora, ings him.” 685 F.2d at 212. before Tomano, (6th Cir.1985); 755 F.2d 515 Sali moderator, a mere judge A acts not as bra, 730 F.2d Fourteenth Jefferson trial governor but as the Rico, Associates v. Wometco de Puerto assuring proper purpose Inc., (11th Cir.1983); its conduct 695 F.2d 524 Frank determining questions (9th Cir.1981); and of of law. Oregon, lin v. 662 F.2d 1337 States, Quercia 289 U.S. King, v. United Pavilonis v. 1078 & n. 698, 699, (1st Cir.), denied, 53 S.Ct. 77 L.Ed. 1321 6 (1980); (1933). judge Literature, must meet The trial situa- S.Ct. Quinn, (1st Cir.1973); and to do this must Inc. v. 482 F.2d 372 tions as arise Tyler Pasqua Toloso, see also power cope with the com- v. Mmes. & have broad (5th Cir.1984) (disapproving plexities adversary pro- inherent in the States, sponte prior sua dismissal to answer and cess. Geders v. United noting 80, 87, 1330, 1334, that issue of failure to state a 47 L.Ed.2d defendant); must be raised Leonhard v. States, (2d 609 n. 11 United Pinkney, 683 F.2d (quoting Id. Caruth v. (sua Cir.1980) sponte dismissal statute Cir.1982), (7th 1044 cert. grounds permitted of limitations when an 1214, 103 (1983)). 75 L.Ed.2d 451 S.Ct. pleaded swer statute of limitations and sponte prior dismissals without no Sua complaint), prayed judgment dismissing for the opportunity tice or an to be heard on the denied, t. U.S. S.Ct. cer dismissal, however, underlying issues the 68 L.Ed.2d 295 “generally may be considered hazardous.” We cannot find a Seventh Circuit case in Tamari, They may 565 F.2d at 1198. be sponte any which a sua dismissal without First, grounds. they criticized on several opportunity notice to be heard has conflict with traditional adversarial con upheld. been In held that Flora we “be- cepts justice the of to extent parties opportunity cause both had an to be proponent make the district court “a rather legal the in the heard on issue case ... the entity.” independent Tingler than an v. response court’s was not undermined Marshall, (6th Cir. sponte.” the fact that it was made sua 1983); Oregon, 662 F.2d see Franklin v. Flora, In 685 F.2d at 212. Tamari the (9th 1981). Second, Cir. such preliminary opin- court had issued a district waste, may ultimately dismissals rather ordering month ion one before dismissal. economize, resources, judicial by pro than Tamari, interpreted 565 F.2d at 1197. We ducing appeals might and remands that sponte “[ajgainst the dismissal sua have been avoided. See v. Su Salibra background.” at 1198. in Id. Thus even Ohio, preme Court of parties the had notice and ade- Tamari — (6th Cir.), U.S.-, quate present arguments time to their to (1984); Tingler, pleadings. or to amend the judge the 1111; Franklin, 716 F.2d at 662 F.2d at York, (2d question not answer the wheth- Lewis v. New We need Cir.1976). Third, sponte sponte dismissals er a sua dismissal without no- sua (in opportunity to heard fact if may prejudice plaintiffs by depriving them tice and be form) in opportunity permissible, not in is ever of an to amend their com- ya Corp., Hilton Hotels 733 F.2d 48 Cir. In this case the to amend the 1984), especially pleadings would have been valuable was decided after the were plaintiffs section claim. filed in this case. court, upon by The case relied the district Anoo- the case us no basis before sufficient for more the fringes pro toward of the review apparent plead- from dismissal cess than facts in Marrese7 ings. noted, As the district court it was the peer medical process review that resulted III. suspension plaintiffs staff privil plaintiff alleges that The the de eges.8 Further, the peer Indiana medical attempt concert in an fendants acted review statute is quality not limited to the and to a competing restrain trade exclude provided patients: care provider medical services from the mar governing The board the hospital ket of the federal violation antitrust supreme shall be the authority in the correctly laws. district court relied hospital, responsible the manage- Interqual, our decision Marrese v. ment, operation, functioning and control Inc., cert. de of the hospital, and the appointment of —nied, -, the members of the medical staff and the (1985), to dismiss this claim.6 assignment of privileges to members of staff medical with the advice and we held Marrese that actions taken recommendations of the medical staff peer within the Indiana medical pro- review consistent with their training, individual suspension cess that result in the of staff experience qualifications. and other privileges exempt are from federal anti- medical of a hospital shall be an trust law under the state action doctrine. organized group which respon- shall be attempts distinguish Plaintiff Marrese sible to governing board ... grounds lost Marrese his staff shall have the responsibility reviewing privileges quality because of the professional practices in the provided care patients, he to his whereas purpose reducing morbidity Doe lost because of com- mortality, improvement and for the physician. made ments she to another We hospital. care do not find the case before us to be distin- include, This review shall but shall not guishable. Although all the facts are not to, the quality limited necessity and stage this before us at of the proceedings, provided the patients____ care we think of the circumstances this case fall of peer under process supervised the review (1982) Ind.Code (emphasis 16-10-1-6.5 by Indiana, even though fall supplied).9 much 6. patient, We note that the upset adversely Delaware district court has have the and thus af- disagreed analysis with our quality Finally, Marrese. See fected the of care she received. Inc., Quinn Hosp., required v. Kent Gen. we note that the Executive Committee (D.Del.1985). complete Physician Doe a 1238-40 to certified Re-train- ing Program reapplying privi- before for staff argues "actively that Plaintiff even if Indiana leges. required not by- This is the supervises” peer process the medical as it relates may require- laws. well One infer from this care, quality to of there is no reason to believe quality ment some concern with the of Doe's "actively supervises” that Indiana peer the medical patient care. process complaints review as it relates to argues 8. Plaintiff also should Marrese be patient unrelated to care. We see no reason distinguished because in the that case why supervision peer the state’s active alleged acting that the defendants were within process, thoroughly review discussed peer process, the Indiana review whereas Doe Marrese, 389-91, see 748 F.2d at would not ex- allegation. a has not similar We do made not tend to this case. distinguish think that this omission should this Further, it is not clear from the record Marrese, case from for such would a distinction plaintiffs the entirely reasons for dismissal are permit exalt form over substance and counsel to quality patient unrelated the to care. The merely by drafting evade Marrese careful suspension "previous letter of referred to inci- pleadings. their behavior,” unprofessional dents may Further, quality be spe- related to the care. legislature The Indiana amended 16—10—1— complained 6.5, cific incident April require of occurred in the effective to that: presence patient facing aof who was serious governing report, board in writ- shall surgery day. may the next Doe’s comments ing, licensing to the Indiana medical board addition, we have doubts about The actions the defendants have had

In a substantial effect on interstate plaintiff adequately alleged com- whether or not .10 practice merce in that the of medicine in commerce with interstate nexus a) Wayne purchase Fort involves: the Esau, 769 F.2d 1274 Cir. Seglin v. drugs supplies equip- and medical and 1985), psychiatrist alleged that the ment which travel in interstate com- admitting privileges suspension of his merce, b) payment of medical bill hospital violated the Sherman at defendant through out-of-state and [sic] “plaintiff held that the must al Act. We c) governmental programs, insurance concerning' alleged lege sufficient facts providing medical services to Ohio resi- likely effect on interstate violation its and, d) general sharing dents in- to that the commerce inference training formation and medical across by illegality infected defendants’ activities state lines. reasonably had or can be ex either have only Amended at 5. The differ- pected have a not insubstantial effect on allegations in Seglin ence between the (quoting at 1280 commerce.” Id. McLain allegations in the case before us is that Board, Inc., Estate v. Real alleges sharing Doe also of information training and medical across state lines. (1980)). plaintiff may merely al We do not think that this additional factor lege some of defendants’ activities af provides basis nexus. Further, fect interstate commerce. Id. Although possible it is allege legal cannot bare con pleadings pass could amend her muster setting facts that at clusions forth without we see no indication from the Seglin, least outline a violation of the Sherman facts that she can do so. Hence we think plaintiffs at 1279. held that Act. Id. We the antitrust claim fails not allegations provide that “the defendants grounds, Marrese but also on account of an psychiatric services to who travel inadequate allegation of effect on com- to receive such ser in interstate commerce merce. vices, purchase equipment in interstate commerce, payments and receive insurance IV. commerce,” through interstate at 1279- id. provides: Section 1981 “insufficient to establish the re were jurisdiction of persons All within the quired nexus with interstate commerce.” the United States shall have same if at 1280. We noted that we did not Id. right every Territory State “virtually every physi affirm the dismissal contracts, sue, and enforce make hospi temporarily cian who is ever denied evidence, give and to the full and parties, tal for whatever reason could proceedings of all laws and equal benefit its drag the and members of staff security persons property of and litigation merely costly by into antitrust citizens, by and shall enjoyed as is white alleging pay that the defendant receives pains, subject punishment, pen- to like be ments, equipment in goods, or interstate alties, taxes, licenses, and exactions of commerce.” Id. at 1283-84. kind, every and to no other. This court has held that Plaintiff in the case before us sim U.S.C. 1981. § allegations applies only to of ilarly alleged facts sufficient to section 1981 has not and that “a alleges: based race establish the nexus. She discrimination final, of clinical or of nificant reduction the results and circumstances substantive, membership. disciplinary action and adverse 16-10-l-6.5(b) regarding governing taken the board a Ind.Code § staff, appli- physician or an on the medical may border on the 10. Antitrust claims like Doe’s staff, for the medical if the action results cant Esau, Seglin See frivolous. voluntary involuntary resignation, ter- in mination, or (7th Cir.1985). 1279 n. sig- nonappointment, or revocation solely plaintiff claim based on na- of discrimination nese was “not excluded from the origin military tional fails to state cause of action hostility area because of to him or Anooya race.”). under section 1981.” v. Hilton his Corp., 733 F.2d Cir. Hotels Doe has adequately alleged racial dis- 1984). crimination under section 1981. Even if pleadings alleged In the Doe that Anooya require were read to that the expressly alleged she is Korean and the plaintiff expressly allege she that is an against defendant had discriminated her Oriental, we would still reverse. In that her race. The court district case the district court given should have alleged concluded that the had the amend discrimination, only origin and national complaint, rather dismissing than sua therefore dismissed the section claim sponte. Indeed this circumstance illus- authority Anooya. on the We think this trates some of the sponte hazards of sua erroneous, approach is that the dismissals. alleged has racial discrimination there improperly fore her section 1981 claim was V.

dismissed. appellant argues Anooya plainly distinguishable. also the that dis- improperly court Anooya, the claimed that he was trict dismissed her claim Iraqi background” Rights “of under Title VI the that he was Civil Act of discriminatorily part fired because of nation- 1964. The pro- his relevant of Title VI origin. al We affirmed the district court’s vides: dismissal of his section 1981 It was claim. person shall, No United States reasonably plain- inferable from the grounds race, color, or national allegation tiff’s Iraqi that he was “of back- origin, in, be from participation excluded ground” he belonged group to a dis- of, denied subjected the benefits or be tinct from white race as a matter any program discrimination under Anooya, race or color. at See activity receiving Federal financial assist- J., (Cudahy, concurring). & n. Unlike ance. of an it Iraqi, may situation be inferred Appellant alleged 42 U.S.C. 2000d. allegation from Doe’s that she is Korean the defendant receives federal “belongs group that she to a that is distinct programs, funds various federal in- from ‘white a matter citizens’ as of race or cluding Act, Hill-Burton U.S.C. Anooya, (Cudahy, color.” 733 F.2d at 50 seq., provides moneys 291 et

J., concurring) (footnote omitted). As the the construction of medical facilities. The Anooya, “allegations concurrence noted in district court protection held that which raise inferences some basis Title VI extended to intended benefi- acceptable.” race or color should be Id. of, for, applicants participants ciaries reasonably It is inferable from the federally program. in a funded Because one is Korean that one is Orien- allegations there were no (or Asian). Supreme tal Court has indicating physicians were intend- recognized against that discrimination Ori- programs, ed such beneficiaries of dis- entals is racial discrimination. Tak- court VI trict claim. dismissed Commission, ahashi v. Fish 334 & Game 410, 412, 420, 1143, 1138, This court has held that order to U.S. 68 S.Ct. 92 (1948); private bring a action under Title VI “the see also Korematsu States, 223, 214, beneficiary the v. 323 U.S. 65 must be intended United 193, 197, for, (1944) (Japa- of, applicant participant S.Ct. 89 194 or in11 L.Ed. a 11. to as Hereafter entire class intended benefi- ferred "intended beneficiaries." ciaries, applicants participants will be re-

419 12 Simpson v. see also Chowdhury v. Reading 1980); federally program.” funded Reynolds 1226, Metal Hospital Center, 629 F.2d 1235 & Medical 317, 677 F.2d (7th Cir.1980) (footnote added);13 see Car denied, cert. (3d 1982), 320 n. 9 Cir. 463 U.S. Metropolitan mi v. Louis Sewer Dis St. 1229, 3569, (1983) 103 77 1411 L.Ed.2d trict, 672, (8th Cir.1980); 620 F.2d 674 (noting require that other pri circuits Center, Inc., NAACP v. Medical 599 F.2d plaintiffs beneficiaries); vate be intended Maloney v. Wash 1247, (3d Cir.1979); 1252 Mexico, Nodleman v. Aero F.Supp. 528 ington, 1263, (N.D.Ill. F.Supp. 584 1266 475, (C.D.Cal.1981) (“only plaintiffs 480-81 1984); Mosley v. Clarksville Memorial especial who are ‘of the class for whose Hospital, 224, (M.D.Tenn. F.Supp. 574 236 benefit statute was enacted’ have v. MacNeal Memorial 1983); Vuciecevic standing bring private an action where a Hospital, 1424, (N.D.Ill. F.Supp. 572 1430 remedy implicit is in a statute that does not Vernot, Moxley 1983)14; F.Supp. 555 expressly provide one”). for As we noted Ward v. Massa 554, (S.D.Ohio 1982); 558 Simpson, legislative history of Title Bay Transportation Authority, chusetts strong support VI “lends to the conclusion Sa 1310, (D.Mass.1982); F.Supp. 550 1311 Congress did Education, pro not intend to extend bol v. Board F.Supp. 510 Moore, tection under any person Flora v. Title VI to 892, (D.N.J.1981); 895 461 1104, than an (N.D.Miss.1978), beneficiary intended F.Supp. 1115 of federal fi aff'd 1131, 481 Simpson, (CCH) (5th Empl.Prac.Dec. Cir. nancial assistance.” 629 F.2d 12. As the district court jective Mosley cases, Discrimination in action, Merit Inc. v. employment. section 2000d-3 ciation F.Supp. toward which Cir. tween the use of federal funds and the VII). When sections 2000d and 2000d-3 are read “employment practice" Section VI Vuciecevic v. MacNeal Memorial beneficiary 42 U.S.C. tion 2000d-3 effect is a consistent with 42 U.S.C. employment. the Federal respect be construed to authorize action under this nization employer, subchapter by any department Simpson, 1981), Nothing 102 S.Ct. together, they require Trageser v. Libbie Rehabilitation was Employment, City Bridgeport, of the federal courts have Against actions under Title v. Clarksville Memorial cert. brought infra except specific application rule to 2000d-3 contained in this any employment practice provides: financial See, agency denied, well as several other of the cited Discrimination in expressly (discussing (M.D.Tenn.1983). where a under the Rehabilitation Employment, e.g., uniformly employment practices. Inc. v. Association 71 L.Ed.2d 847 Cir.1978), grant (N.D.Ill.1983). action is directed.” Asso (emphasis supplied); Bridgeport Association, assistance is to notes, addresses agency, primary objective VI, must be to whether there is an 2000d-3, purposes "logical held subchapter this Firefighters or Inc., or labor Hospital, Employment, that, primary only agency Hosp., agency 647 F.2d at (1982); position nexus be Although which in intended of Title practice provide provide Against even in Center, (1979); orga- shall Act, Sec- any ob (2d see see 14. Vuciecevicalso involved a been denied was medicare and medicaid. intended F.2d at 1235. same manner not under Title VI. We commented scope the Rehabilitation Act was modeled principle sons whom funds. nondiscriminatory agency which extends financial assistance of benefit of both cation. activity al VI would allow every aspect bates on the Civil federal VI will Celler stated: ... Simpson as to each assisted The bill would This title equal money It type of Title VI because the relevant section of beneficiaries Cong.Rec. response would, ^[******] ****** federal financial assistance in that case require by Congress ... treatment financial covered declared in Title VI would explains: is used to simply provides Congress as, to concern voiced program races, 1518-21 short, government Title VI. See and in Rights identification of standards of require assistance, Representative operations program activity, recorded as Title VI must establish assure the without discrimination. to be enforced in the privileges. (emphasis supplied). Act of must be used for the enjoyment physician that each federal that, intervention into general appli- Simpson, existing right to whom the where Feder- recipients participants program during those after, of federal However, who had apply. Title per- de- or Carmi, omitted); see (footnote funds) at 1235 ern the disbursement of federal to does F.2d at 674 n. 4. not create causes of action. It is not beneficiary an intended allege that she is of regulations,. clear to us why these which program any federally funded in the complex ambiguous, are and necessarily re- must participates; therefore we congressional flect respect intent with to of her affirm the dismissal claim.16 VI private causes of action. We think the principle in the articulated cases we have argues Doe that she does to not have be here; apply cited continues to beneficiary regu- a direct because the HHS beneficiary bring must be intended to a grant her lations should be construed to a private action under Title VI. Kelly v. private cause action.17 contends of She Cf. Metropolitan Rapid Atlanta Transit Au- cases cited with none of the above deal (MARTA), thority Empl.Prac.Dee. regulations, the and therefore cases those not, (CCH) 33,066 (N.D.Ga.1982) H distinguished. (regulations can be She does how- ever, tell we the under the why us should construe Rehabilitation Act cannot create (which, course, regulations directly gov- standing of standing when the lacks 17. The 16. Doe vide: the district should be allowed mine Simpson, she joyed by tent set forth in program that afforded others under the cluding er benefit participate opportunity to do so which is different from tion which admission, sion of membership cial ers in ed. enjoyment Id. at through which this bach to from 2480-81 marks of Sen. (remarks (vi) Deny (v) (iv) (b) Specific discriminatory believes that See id. at 1542 provided any ground whether she aid, (1) regulations Treat an individual Deputy argues ^[******] Restrict an individual in ****** discovery determining services Rep. or other benefit under the (remarks contractual A as an others of Sen. provided court in the individuals of part applies may (remarks recipient an individual enrollment, or other Atty. that she was not Celler). any advantage race, color, Pastore) employee she can paragraph receiving service, to which to was should Humphrey); program through (remarks otherwise or Gen. of amend her under the 1235 n. 17. whether he satisfies or of an intended Rep. Ryan); stayed. requirement must and Id. at 13380 Nicholas DeB. Rep. make this financial other differently decide whether she but any (c) or national quota, participate of meet in any program actions or Mathias); of this not, program; opportunity Id. at any Rep. service, complaint. arrangements, If afford able program privilege aid, on beneficiary directly Id. at 6545 refers way allegation, eligibility, or condi- from oth- program; Lindsay); prohibit- section). to deter- order remand Katzen- him an or oth- origin: in the finan- provi- in the (letter Id. at pro- (in- (re- en- ex- or to to to It Section examples 45 C.F.R. 42 C.F.R. assurances that an cial assistance must make: which, tice entire residents, operated in connection therewith. case assurance shall entire assurance will nection therewith. In case of ticipants tion ance way faction of the parts or shall be institution for which Federal financial assist- services opportunity to admission unless the as ... lates provides, such ance to a al rangements) subject an individual to discrimi- nation on the mary objective may applies ... The assurance (c) origin to the hospital, affect its the is to the program____ professionally qualified persons Employment practices. facility 80.5 facility sought, is to programs or assistance institution’s applicable (directly privilege physicians, student in its facility 80.3. program applicant other benefits to such grant institution’s hospital, 80.4(d)(2) (emphasis to such part: provide employment, or and to ... responsible Department ground practices application participate or the beneficiaries of or apply ... of the institution or to the of the Federal financial assist- other treatment of individuals employment practices insofar Section applicant programs. nurses, regulations provides of the institution will in no or or sought which, any facilities to the entire institution to which this construction establishes, made, of practices through part in practices race, color, event extend to the patients, and other 80.4 the is in the with will or for a for federal finan- the assurance re- and to operated (1) program If contractual ar- sets forth the in apply respect the construc- dentists, Where a provision to the satis- facility, regulations. individuals, to grants a designated regulation supplied). or nation- any facilities trainees, recipient part interns, official, in con- to the under prac- to [a] some such par- pri- of objective no primary because of the federal see Education, also v. Board Caulfield of provide employ (2d financial assistance is to Cir.1978) (court 610-11 ment), approved opinion, government rev’d without investigation of dis- crimination in the employment of teachers discriminatory because employment prac- adversely tices children); affect minority that, argues Plaintiff even if sections Education, Sabol v. Board F.Supp. of 80.4(d)(2) 80.5(e) do not her (D.N.J.1981) 898-99 (restricting pri- claim, 80.3(c)(3) reg- Title VI section of the vate cause of action V, under 504 of Title § supports ulations her cause of action. Sec- analogous VI, which is to Title to situations 80.3(c)(3)provides: tion in which policies hiring broad are in- primary objective Where a of the Fed- volved rather single than instances of em- provide eral financial assistance is not to discrimination). ployment employment, but discrimination on the We need not decide this issue of race, ground color, origin or national rights representative doctors’ of their employment practices recipi- patients plaintiff’s complaint does persons ent or other subject regu- to the not adequately allege how the tends, race, ground color, lation on the action could result in against discrimination origin, or national to exclude individuals patients race, grounds on the color or in, participation from deny them the origin.18 national There allegations are no of, subject benefits or to them to discrim- complaint patients’ race, about her ination any program to which this Further, color or origin. national the dis regulation applies, foregoing provi- trict court noted: (c) sions paragraph apply of this shall allegations There are plaintiff’s no employment practices recipient complaint patients under her care persons subject regula- other to the cannot be Joseph’s admitted to St. Hospi- tion, to necessary the extent to assure tal---- It is patients true that the could equality to, and nondis- not be admitted with listed as of, criminatory treatment beneficiaries. treating physician because she does 80.3(c)(3). 45 C.F.R. Plaintiff contends But, privileges. not have staff there is essentially against that discrimination doc- nothing in plaintiff’s complaint amended imports against tors discrimination their alleges physicians, pos- patients (presumably the primary benefi- sessing privileges, could not admit here). connection, ciaries In this several those for treatment at St. Jo- courts have private stated that a cause of seph’s Hospital____ alleged action lies if the discrimination District Court Order at 5-6. “necessarily against causes discrimination plaintiff’s primary Hence prop- beneficiaries of the federal VI claim was erly Trageser, (footnote aid.” dismissed.19 590 F.2d at 89 omitted); Simpson, see 629 F.2d at 1235 n. VI. 16; Mosley, F.Supp. Murphy v. Enlarged City

Middletown argues School Dis- Doe also that her claim un trict, (S.D.N.Y.1981); Rights der Title VII of the Civil Act of 1964 80.5(e) (emphasis supplied). hospitalization), 45 C.F.R. asserting both rights patients.” her own and those of her 18. We note that even if a cause of action However, plaintiff argue appeal why did not may 80.3(c)(3) regula- arise under section of rights she should be allowed to assert the of her tions, that, plaintiff must establish under the patients and it is far from certain that she general principles third-party standing, she should to do be able so in this case. ought rights to be allowed to assert the of her patients. complaint Plaintiff's argue stated: "Because 19. Plaintiff does not that she should be doctor/patient permitted the ob- to amend her in order to patient rights raising stacle to the their own state a claim under Title VI. We leave this (including question mand, their lack of and the resources uncer- to the district court to resolve on re- tainty they might question as to whether and when need should the arise. employee Hence, improperly employer.22 dismissed district of an Id. argument provides, part: “employ- Doe is not an Title VII court. hospital, VII, ee” of the by as defined Title (a) employment unlawful It shall be an dispositive. Further, pro- not Title VII employer— practice for an only respect hibits discrimination not with (1) or refuse to hire or to to fail employment, to conditions of but also with individual, discharge any or otherwise respect “privileges employment.” against any individual to discriminate 2000e-2(a)(l) 42 (emphasis U.S.C. sup- compensation, to his with plied). The courts have held that Title VII conditions, terms, of em- should “liberally be construed so as to fur- such ployment, because of individual’s goals purposes ther the eliminating color, sex, race, religion, or national employment.” discrimination in Unger v. origin; 909, Corp., Consolidated Foods 657 F.2d 2000e-2(a)(l). 42 The district U.S.C. § 915 n. 8 vacated on other “employ- court held that one must be an 1002, grounds, 2288, 456 U.S. 102 73 employment ee” to state a claim for dis- (1982); see, e.g., Martinez v. under Title VII. Because there crimination Orr, (10th Cir.1984); 738 F.2d was no between Quinn, Armbruster v. 711 F.2d (6th plaintiff hospital, Cir.1983); and the the district Baker v. Stuart Broadcast- Co., (8th Cir.1977). ing 560 F.2d court dismissed this claim.21 appellant argue The not Sibley does that she private was a male duty private hospi- nurse who worked in “employee” hospital. an a was Rath- tal required for who private er, appellant argues that Title VII does not patient nurse. When a needed require employment relationship an be- nurse the nursing office would pre- tween the and defendant as a request communicate the registry. to a requisite to a claim under Title VII. Doe registry Neither the nor the was Sibley relies on Hospital Memorial v. Wil- permitted to discriminate on the basis of son, (D.C.Cir.1973), and Pun- The registry patient sex. would match the Hampshire Racing tolillo New Com- nurse, with an available and the nurse mission, (D.N.H.1974). report patient. would to the If the nurse plaintiff’s think We reliance on these unacceptable patient, was to the for pleading stage espe- cases at least at the — reason, patient would still be cially Sibley appropriate. —is Because she pay day’s wages. the nurse one The may have been able to establish she plaintiff complained supervisory nurs- VII, protected by was intended to be Title es at defendant had themselves .the the district court should not have dismissed rejected prevented him him from re- pleading stage. this claim at the porting patient patient to the when the was First, female. language we note that the 2000e-2(a)

VII is broad. Section does not The court in Sibley held that the “employee” use the term but rather refers claim, despite had a Title VII the absence “any individual.” Sibley, employment relationship of an between the “any at 1341. There are no indications that hospital. nurse and the The court first individual” Congress should be read to mean noted that in Title in- VII had is, rather, "employee" 'employee.' phrase ‘person 20. Title VII defines as "an individu- employed by employer,” al with certain ex- aggrieved;’ certainly and that term can be taken 2000e(f). ceptions. 42 U.S.C. comprehending individuals who do not stand employment relationship in a direct with an appellant timely charge 21. The had filed a unlikely Congress employer____ It seems Equal Employment Opportunity Commis- standing bring would confer a suit under the Right sion and received a “Notice of to Sue." upon persons rights Act without under the Act employees.” Sibley, Further, Act, filing providing are not “[t]he complaints with EEOC and of eventual ac- F.2d at 1341. Court, tions in the District does not use the term equality employ Eacing tended to “achieve shire Commission under Title VII ” “provide opportunities, and to ment denying race, him a necessary license to men job market both to the equal access Hampshire and the New Trotting and Sibley, at 1340-41 and women.” Breeding denying Association for him stall (quoting Griggs v. original) (emphasis space at the park. race Duke Power employed by owners, the horse ei- and Diaz v. (1971) court, ther of the defendants. The follow- Inc., Airways, American World Pan ing Sibley, denied the defendants’ motion Cir.), to dismiss for failure to state a claim (1971), granted. which relief could be respectively). job Control over access to the market The courts’ reasoning apply seems to to reside, may depending upon the circum- the case before us. alleges Plaintiff that case, organiza- stances of the in a labor action has interfered with her tion, employment agency, an or an em- employment opportunities.23 Congress pre- ployer VII; as defined and it sumably did not intend to allow the hospital appear Congress would that has deter- exploit to power grant its to deny prohibit mined to each of these from privileges in order to discriminatorily inter- exerting power any may it have to fore- fere employment with Doe’s opportunities close, grounds, by on invidious access patients. with her employment opportuni- individual to ties otherwise per- available to him. To Appellees assert that Sibley should be employer mit a covered exploit circum- distinguished because hospital there the peculiarly stances affording capa- it the entirely could bility discriminatorily interfering foreclose the with nurse’s access employment opportunities individual’s patients, while in the case before us St. employer, with another while it could not Joseph’s has no such control over the phy- do so employment in its sician’s access to patients.24 her Similarly, service, own would be to condone the argues the dissent in Sibley the “hos- very continued use of the criteria for pital’s control employees over the at issue employment Congress prohibit- has was, practical matter, as a absolute.” Slip ed. op. at 427. But the hospital in Sibley Sibley, 488 F.2d at 1341. could foreclose the nurse’s access to patients hospital. in that Puntolillo plaintiff,

In The nurse’s em- driver-train- horses, er of harness sued Hamp- the New ployment opportunities outside of that hos- alleged Univ., 23. Doe damage (D.Del.1985) that she "has ("The suffered hos- profession, practice, her reputa- pital her medical Sibley] her actually employ [in not did subjected nurses."). tion and has been to mental distress suffering. suffering irreparable She is Appellees distinguish Sibley would also be- practice being harm in that her irrep- medical hospital cause in that case the maintained the arably damaged by ability pa- her to care for employment character agency. of an Once hospital, thereby requiring patients tients in a again, Sibley. counsel misunderstands The hos- potential patients to seek medical care else- pital referring did patients’ not discriminate in where." Rather, employment offers of to nurses. hospital permitting discriminated the re- Appellees Sibley also assert that should be patient. ferred nurse access to the When the distinguished Sibley because the was hospital denied the access it was not employee hospital. Appellees' Brief at acting "employment agency.” in its role as 13. We have been unable to find Sibley court in held that the was similar Indeed, case for this assertion. the court said employment agencies to labor unions and be- question appel- "there seems to be no "highly cause it had a visible nexus with the appellee contemplate any lant and did not im- creation and continuance of direct relationship employ- mediate or future of direct relationships parties.” between third Id. We ment in the sense of the usual indicia of such think that Doe should be allowed to show both employment." Sibley, 488 F.2d at and, see summary judgment appropriate, if at Martin v. Delaware Law School Widener Joseph’s trial that St. has a nexus. such hospi- 1984), that, pital, example proposition at other even under tals, unimpaired. apparently Sibley analysis, remained Ti- Doe cannot invoke Chesapeake & Potomac Tele- tle Shehadeh v. VII because she does not an em- have (D.C.Cir. phone ployment relationship patients. with her 1978). be distin- Sibley Hence cannot Beverley plaintiff, physician, guished by merely pointing out that Doe voluntary admitting privileges denied in her may office or treat hospital. the defendant The district court hospital. another granted the defendant’s motion for summa- claims, ry judgment including on all a Title appellees distinguish would Similarly, VII claim. rejected plain- The court could not Puntolillo because argument tiff’s that she could make a Title disagree. a license. We race at all without analysis. VII under the Sibley have to foreclose all A defendant does not court reasoned that the must inter- employment opportunities order to un- physician’s fere with the employment rela- lawfully opportuni- interfere with these tionship. Because the in Beverley ties.25 admitted that her pa- to her Further, have that an other circuits held employer tients was not that of and em- “employer,” purposes of a Title VII ployee, indepen- but rather was that of an claim, may “any party significantly who contractor, plaintiff dent could not any employ individual to affects access bring her Title VII claim. regardless opportunities, ment whether note, however, We that at least one dis- party may technically that be described as trict court has denied a motion to dismiss a ‘employer’ aggrieved of an individual as involving Title VII claim allega- similar generally that term has been defined at Holy tions. See Pao v. Spirt Hospi- common law.” v. Teachers Insur Redeemer Association, tal, (E.D.Penn.1982). F.Supp. 547 Annunity ance & 484 1054, (2d Cir.1982) (quoting plaintiff, opthalmologist 1063 Van that case the guard Society, Hughes, Inc. v. 471 ancestry, alleged Justice Chinese that the defend- 670, (D.Md.1979)), F.Supp. 696 vacated on impaired ant had ability practice by his 1223, grounds, 463 103 repeatedly denying privileges,26 him staff (1983); see, e.g., Go though privileges even he had staff at oth- Hospital, mez v. Alexian Brothers hospitals.27 er The court held that the case (9th Cir.1983); Livingston Pao, Sibley. fell within F.Supp. at (10th Cir.), Ewing, v. case, present appears In the it if allegations contained the amended true, upon Beverley The dissent relies are the defendants’ dis- (S.D.N.Y. Douglas, F.Supp. criminatory deprived conduct will have example, employment relationship 25. For v. Alexian Bros. does not mean the be- Gomez Hosp., plaintiff plaintiff tween AES and has not been interfered Hispanic physician practiced was a who medi- plaintiffs employment with. conditions of employee professional corpora- cine as an are different than would have been had he alleged tion AES. Plaintiff a Title VII violation against.” not been discriminated Id. at 1021. proposal when the contract that AES submitted hospital operation emergen- to the cy alleged plaintiff practice 26. The that his rejected, allegedly many room was injured because the defendant was the employees Hispanic. of AES' proposal were Under the convenient, special equipment most had plaintiff the di- was to serve as patients because he had lost because he did not hospital's emergency rector of the room. The have staff there. granted summary judgment district court present the defendants because there was no plain 27. The court held that whether or not the potential employment relationship between tiff had access to other facilities was defendant; plaintiff would Pao, F.Supp. not relevant to Title VII any employee case remain an of AES. The reversed, holding Ninth Circuit fact "[t]he employee of AES continues as an prospective patients certainty, premature desir- it is plain- to dismiss ing the convenience and resources of tiff’s Title VII claim at the pleading stage. Hospital’s Holy Redeemer retinal facili- case we have found that considers Thus, Holy Hospital ties. Redeemer had a claim for physician’s denial of a capacity the same as the defendant in privileges under Title VII pleading at the plaintiff’s Sibley to control the access to stage is Pao v. Holy Hospital, Redeemer prospective patients those who are his supra, which Thus, sustains the claims. ” “employers. ultimate appellant should be allowed to make a (footnote omitted) showing that (emphasis supplied). Id. defendant has discriminato- implicitly physician rily Thus Pao holds that a interfered employment with her oppor- may employment relationship have an with tunities in such a way as clearly would fit bring sufficient to a Title VII into the Sibley analysis. express We no analysis.28 under the Sibley stage view at this prospects on the of mak- ing showing. such a

Further, may distinguish it be difficult to employment relationship between a VII. patients, nurse and his which was evidently sufficient to sustain a Title VII claim in The defendants alternatively argue Sibley, and the that we should affirm the district court’s physician patients. between a and her As grounds dismissal on the juris that federal noted, “[a]rguably, one court has a male lacking diction is because the day-to-day nurse who works on a or a basis failed to exhaust her administrative reme driver-trainer who works for a horse owner defendants, however, dies. The fail to cite independent is an contractor.” Smith v. cases in argument of this Trucking Dutra involve claims under section Title VI (N.D.Cal.1976), mem., 11n. 580 F.2d aff'd appears Title VII.29 It that exhaustion (9th Cir.1978). of remedies apply does not to claims under rights of the civil

Thus it is far from certain that acts.30 the doc- See Donald tor-patient relationship Taylor son v. pro- would not be Products Division Tec of Co., 155, Sibley analysis. tected under a umseh Products There is (7th Cir.1980); uncertainty substantial type about the Waters v. Wisconsin Steel employment relationship protected Co., that is Works International Harvester analysis. 1309, such Because of this un- 502 F.2d placed "employers” upon relationship 28. In Pao the court the word physician between the marks, quotation indicating within thus hospital. that a and the Amro does not discuss what employment relationship common law is not relationship required physician was between the required physician pa- between the and her patients. and her The court assumed that there tients. Indeed we note that the common law employment relationship must be an between independent contractor/employee test is often physician hospital and the without even applied legislation, to antidiscrimination be- discussing Sibley. The Amro court held that cause "it considered inconsistent with the "hybrid” employ- under the test there was no purposes legislation.” remedial behind such physician ment between the Marsh, 1066, (5th Mares v. 1067 n. 1 physician and thus the could not Cir.1985) Instead, other, cases). (citing less re- bring a Title VII action. strictive tests such as the “economic realities” hybrid test or a of that test are used. See id. Further, 29. the issue of exhaustion of adminis- tests); (citing using cases these other see also trative remedies raises certain factual issues Dowd, Ltd., (7th EEOC v. Dowd & 736 F.2d 1177 properly supra that we cannot decide. See note Cir.1984) (recognizing the “economic realities” 2. test). involving We note that a later case a motion course, recognize, charge We that a must summary judgment in decided the East- Equal Employment Opportuni- be filed with the Pennsylvania, ern District of Amro v. St. Luke’s ty proceeding in Commission before court un- (BNA) (E.D. Hosp., Empl.Prac.Cas. 39 Fair timely charge der Title VII. Plaintiff filed a Penn.1986), apparently disagreed, on the basis Right with the EEOC and received a "Notice test, "hybrid” with the conclusion in Pao. 30, September to Sue” dated Amro, however, The court in based its decision 2214, 997, opinion. Because we have 96 S.Ct. reversed the 425 U.S. (1976). plain- L.Ed.2d 823 district court’s dismissal of several of claims, tiff’s federal we must also reverse VII, contractual administra- Under Title plaintiff’s the dismissal of state claims and not have to be exhausted tive remedies do claims these are remanded to the district bring judicial action.31 See order to proceedings. court for further See United 158; Donaldson, Sprogis F.2d at v. Gibbs, Mine v. 383 U.S. Workers Lines, 517 F.2d United Air (1966). 16 L.Ed.2d 218 Circuit Cir.1975) forego settlement (plaintiff may apply. Rule 18 shall bargaining repre- agreement between employer former to file and her sentative Part; Affirmed Reversed and Re- action); Waters, 502 F.2d at Title VII manded in Part. Alexander v. Gardner-Denver see also 36, 49, 1011, 1020, 94 S.Ct. RIPPLE, Judge, concurring in Circuit (1974)(individual for- does not part dissenting part. feit his cause of action under pursues grievance his VII if he first majority’s disposition I concur collective-bargain- final arbitration under the section Title VI and antitrust ing agreement). however, respectfully disagree, claims. I disposition with its of the Title VII claim. VI, Supreme

With to Title impose Court has refused to an exhaustion majority, adopting interpre- a broad requirement Title IX of the Edu VII, tation of Title holds that the district is analo cation Amendments which court’s dismissal of Dr. Doe’s Title VII gous to Title VI. v. See Cannon Universi failure state a claim ty Chicago, 706-08 n. granted inappro- relief could was 1946, 1962-64 n. priate. respectfully disagree. I rejected The lower courts have also states, pertinent part, Title VII that: requirement for Title an exhaustion VI (a) It shall be an unlawful Chowdhury Reading Hospi cases. practice employer— for an Center, (3d tal & Medical Cir.1982) (1) (physician alleging that denial of to fail or refuse to hire or to individual, racially discharge any dis or otherwise criminatory ad against any is not to exhaust to discriminate individual VI), ministrative remedies under Title cert. respect compensation, to his with dénied, 103 77 terms, conditions, 463 U.S. S.Ct. privileges or of em- 1411 L.Ed.2d ployment, because of such individual’s race, color, sex, religion, or national Waters, In Donaldson and we held that origin. require not section 1981 did exhaustion Donaldson, remedies. 620 F.2d at 2000e-2(a)(l). See According 42 to U.S.C. § Waters, Act, 502 F.2d at 1316. employee is “an individual em- 2000e(f). by employer.” ployed Id. §

VIII. dispute Dr. the fact that she Doe does judgment respect employment We affirm did not have an with Joseph’s purposes for of Title VII. plaintiffs the dismissal of Sherman Act with St. Rather, claims, hospital’s and Title and and re- she contends that VI reverse denying privileges” her “staff in- mand with to the dismissal of the action employment opportuni- for fur- terfered with her section 1981 and Title VII claims proceedings ther not inconsistent with this ties: physician granted appellees by- that the tween the and the

31. We note that concede (cit- Joseph Hospital, privileges. Appellees’ laws of St. under which 21 Brief at pursued her admin- authority). should have ing remedies, be- istrative are considered contract opportunities. discriminatory privi- Sibley, A of staff In denial the action of the leges adversely hospital prevented physician to a affects her making Wilson from ability employ- to obtain and maintain necessary contact to establish an employ- by patients hospital- ment who need ment relationship between himself and his plaintiff specifically alleges, ization. The “employers” patients. The —the paragraphs of her 16 and Amended control over the “employers” access to at is- A-19, her Complaint, inability to ad- was, matter, sue practical as a absolute. patients mit and care for the defend- Puntolillo, Similarly, in the action of the hospital, “significantly ant and has ad- effectively precluded Commissioner Punto- versely employment affected her rela- lillo establishing from an employment rela- opportunities patients,” tions with tionship with potential horse owners—his patients her and has and “employers.” cases, In both the defendants potential patients seek medical care else- had total effective control plain- over the where. tiffs’ abilities to contact their actual “em- Appellant’s Br. 23-24. ployers.” majority finds that Dr. Doe’s re case, however, In Joseph’s this St. Hospi- Hospital Sibley

liance Memorial Wil tal does not total have such control over son, (D.C.Cir.1973), and Pun Dr. ability patients. Doe’s to obtain Hampshire Racing v. New It tolillo Com mission, (D.N.H.1974) prevent cannot preclude or her from main- taining establishing agree pro relationships I those cases appropriate. with patients.1 support proposition privileges” that Title Her vide “staff at St. Jo- seph’s equality simply VII intended to “achieve her afforded an opportunity employment opportunities,” “pro and to patients particular to treat her in that hos- equal job market pital. vide access to the Dr. free Doe is. still to treat her Sibley, men and women.” both F.2d at or in her office other health original) (emphasis (quoting 1340-41 short, facility. Joseph’s Hospi- since St. Griggs v. Duke Power 401 U.S. Dr. tal does not Doe’s access control 849, 852, (1971) patients, its action cannot be characterized and Diaz v. Pan American World Air interfering employment rela- Inc., Cir.), ways, tionships patients.2 with her specific (1971), However, question of whether respectively). L.Ed.2d protection physicians VII provide affords who I do not believe that those cases hospitals are claim. There affiliated with has been con- Dr. Doe’s is a by sidered Sibley distinction between three courts. Those courts vital holdings majority this reached different results. As the case—the de Puntolillo notes, of control exercised the defendant one district court concluded that the gree plaintiff's denial of staff falls within over access alleged hospital reject- Dr. Doe Hispanic. 1. in her that she cians were has to be The applied privileges” Wayne at "staff other Ft. ed the bid. The court found that Dr. Gomez hospitals yet grant- not as but that she had been stated a under VII cause of action Title However, privileges. those ed the fact that no refusal, alleged purported- he that the hospital privileges has her does accorded ly grounds, opportuni- on racial him the "denied require keep Joseph’s not St. her on staff. ty employed by to be as director of AES defend- emergency ant’s Id. at 1021. room.” analysis applies equal 2. This force with to Go- employment sought by Go- Hosp., v. Bros. Alexian mez Cir. emergency patient Gomez, mez 1983). was to handle care on a Hispan- In the was a physician in need of such practiced profes- full-time basis. Patients emer- ic who medicine as a corporation gency the health sional Emergency under name American care seek it from care facilities not bid, Corporation By refusing Services physicians. Professional the individual AES (AES). Group AES Medical In submitted precluded effectively Gomez from the emergency bid to run the defendant’s room. emergency patients. medical access to emergency Plaintiff was to act as director Again, hampered. been so Dr. Doe has not room, participating physi- and five of the twelve Holy v. Redeemer Doe has not Sibley rule. See Pao established the connection be- (E.D.Pa.1982). Hospital, F.Supp. tween herself and hospital necessary that the had The Pao court decided state a claim under employ- Title VII—an capacity as the defendant “same relationship ment with which there has plaintiff’s Sibley to control the access to Physicians been interference. with “staff prospective patients those who are his ulti- privileges” indepen- such as Dr. Doe are ” Pao, F.Supp. ‘employers.’ mate Moreover, physicians dent contractors. are court, therefore, grant refused 494. The employment considered to have an rela- motion to dismiss. I be- the defendant’s Rather, tionship patients. with their it is a was incorrect.3 In lieve that this decision client/professional relationship like —much view, case, my Beverley Doug- a recent v. attorney between an and his client. (S.D.N.Y.1984), las, Thus, any reading of Dr. Doe’s presents compatible far more a rationale claim, she does not state a cause of action congressional intent. In Beverley, with VII, under Title and the district court’s question district court considered dismissal of her claim should be affirmed. admitting privileges whether the denial of hospital presented at a rela-

tionship meaning of Title within VII. rejecting argument

After phy- that the employer-employee had an

sician relation-

ship hospital, with id. at it ad- argument hospi-

dressed the that denial of physi-

tal interferes with the employment opportunities

cian’s future patients. distinguish- with his or her After CENTRAL STATES SOUTHEAST AND ing along sug- Sibley Gomez lines SOUTHWEST AREAS PENSION gested foregoing paragraphs, Judge FUND, Plaintiff-Appellee, Weinfeld concluded: assuming Even has al- CO., INC., BELLMONT TRUCKING leged Hospital’s denial of her Defendant-Appellant. application voluntary attending privi- leges relationship interfered with her No. 85-2158. patients, pa- her to her Indeed, employment. tients is not one of United Appeals, States Court of ques- admits that “there is no Seventh Circuit. ‘physician, tion his or her rela- Argued Feb. tionship patients, is the classic inde- ” pendent contractor.’ order to invoke April Decided VII, plaintiff allege prove must link some between the defendants’ ac- employment relationship.

tions and an

No present such connection is here— admission, plaintiff’s own her relation-

ship employ- to her is not that of employee.

er and

Id. at 1328. analysis Judge employed by Wein- in Beverley

feld is the correct one. Dr. (cid:127) subsequent plaintiffs 3. A decision from the same district exercise economic control over the income, substantially has undercut the of Pao. to earn this is rationale future not sufficient Empl.Prac. Hosp., In Amro v. St. Luke’s 39 Fair counterbalance all the other factors which tend (BNA) (E.D.Pa.1986), classify independent Cas. the court held the doctor as an contrac- though hospital may Id. at defendant tor.” "[e]ven

Case Details

Case Name: B. Doe, M.D., on Behalf of B. Doe and B. Doe's Patients v. St. Joseph's Hospital of Fort Wayne

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 2, 1986

Citation: 788 F.2d 411

Docket Number: 85-1211

Court Abbreviation: 7th Cir.