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DAVIDSON v. YESHIVA UNIV.

November 22, 1982

ARTHUR T. DAVIDSON, M.D., ESQ., Plaintiff,
v.
YESHIVA UNIVERSITY & ALBERT EINSTEIN COLLEGE OF MEDICINE OF YESHIVA UNIVERSITY, Defendants



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, D.J.:

 Defendants Yeshiva University and Albert Einstein College of Medicine of Yeshiva University ("Yeshiva") move to dismiss or strike several statutory grounds for plaintiff's claims, class certification, and certain forms of relief as alleged in plaintiff Arthur T. Davidson's ("Davidson") complaint. The complaint charges Yeshiva with engaging in discriminatory hiring and employment practices.

 In his complaint against Yeshiva, plaintiff asserts that as a result of racial discrimination he has been assigned to surgical service only on emergency night duty, and only for three months out of a year. He alleges that this treatment represents the "South African Compromise" devised by the former General Surgical Ward Director, a white South African. According to plaintiff, this former director formulated the Compromise to ease the director's adjustment to the presence of Black attending surgeons. Despite plaintiff's allegedly repeated requests for a change from the Compromise, subsequent Directors have adopted the same assignment policies. Moreover, plaintiff claims that defendants "refuse to elevate and promote Black physicians commensurate with their skills and training." Complaint para. 15. Plaintiff also asserts a claim based on Yeshiva and its agents' "use [of] derogatory racial words when referring to Black and Hispanic patients and staff." Complaint para. 12.

 Defendants, on the other hand, claim that this allegedly wrongful conduct is the result of a neutral Department of Surgery policy. The policy provides that voluntary non-paid surgeons, as distinguished from full-time paid attending staff, are assigned to three month rotations during which they may perform surgery at night. The distinction between voluntary and paid faculty and the corresponding benefits, defendants assert, is required by the institution's educational prerequisites and by the amount of surgical time available.

 Plaintiff applied and was accepted for a voluntary surgeon position; defendant claims he has not applied for a position as a full-time paid, attending physician.

 Yeshiva moves pursuant to Fed.R.Civ.P. 23(c)(1) to dismiss Davidson's class action allegations, and pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Davidson's claims based on the thirteenth amendment, fourteenth amendment, 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1988. Yeshiva also moves to strike Davidson's demand for compensatory and punitive damages under Title VII and to strike Davidson's demand for a jury trial pursuant to Fed.R.Civ.P. 12(f) and 39(a)(2) respectively. *fn1" Yeshiva's motions are granted in part and denied in part.

 I. Class Action

 Yeshiva moves to dismiss Davidson's class action allegation. Although plaintiff did not move for certification of his lawsuit as a class action pursuant to Southern District of New York Local Rule 4(c), I will read his pro se pleadings liberally, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), and read his allegations to include a motion for certification. *fn2" Four requirements under Fed.R.Civ.P. 23(a) must be met to justify class certification: numerosity, commonality, typicality, and adequate representation. Defendant's motion to dismiss the class action allegation is granted because none of these requirements has been met.

 A. Numerosity

 Davidson has failed to show that there are sufficiently numerous class members to warrant class action status. In fact, no other person with a similar claim has been identified. When the plaintiff fails to aver, much less establish any facts to support his conclusory allegations of numerous injuries, the class action request should be dismissed. *fn3" See, e.g., DeMarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968); O'Connell v. Teachers College, 63 F.R.D. 638, 640 (S.D.N.Y. 1974); Male v. Crossroads Assoc., 320 F. Supp. 141, 150 (S.D.N.Y. 1970), aff'd on other grounds, 469 F.2d 616 (2d Cir. 1972).

 B. Commonality

 Davidson's attempt to meet the requirement of commonality pursuant to Fed.R.Civ.P. 23(a)(2) has failed since he has not shown that he has questions of law or fact in common with any other potential plaintiff. Mere paraphrasing of the ...


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