The opinion of the court was delivered by: WEINFELD
Plaintiff, Dr. Cordia Beverley, received her M.D. degree from the New York University School of Medicine, and trained between 1979 and 1982 in a three year clinical fellowship in gastroenterology at New York Hospital ("the Hospital"), a teaching hospital affiliated with Cornell University Medical College ("the College"). As her fellowship drew to a close, plaintiff applied for, and was denied, voluntary admitting privileges at the Hospital, and a corresponding voluntary faculty appointment at the College. She alleges that the denial was based upon her race (Black) and sex, and asserts six claims against the Hospital, its governing body -- the Society of the New York Hospital ("the Society"), the College, and four individuals: Dr. Joseph Artusio, the President of the Medical Board of the Society; Dr. Gordon Douglas Jr., the Chief of Service of the Hospital's Department of Medicine; Dr. Norman Javitt, the Chief of the Division of Hepatic Diseases of the Hospital's Department of Medicine; and Dr. David Thompson, the Vice-President and Director of the Society. The first claim alleges that defendants' denial of her application for voluntary admitting privileges and a corresponding voluntary faculty appointment was part of a pattern and practice of discrimination on the basis of race and sex, in violation of Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e (1982). The second claim, which is brought pursuant to 42 U.S.C. § 1983 91982), alleges that defendants acted under color of state law to deprive plaintiff of her civil rights by denying her application for voluntary admitting privileges and the corresponding faculty appointment on the basis of race and sex. Third, plaintiff claims that she was denied voluntary admitting privileges and the corresponding faculty appointment because of her race, in violation of 42 U.S.C. § 1981 (1982). Her fourth claim, which is brought under New York State law, alleges that defendants' disposition of plaintiff's application for voluntary admitting privileges was arbitrary, capricious, and in violation of defendants' own by-laws, and thereby deprived plaintiff of employment opportunities and income without due process of law. Fifth, plaintiff claims that defendants' denial of her application for voluntary privileges violated the Fifth, Thirteenth, and Fourteenth Amendments to the United States Constitution. Finally, in a proposed amendment to her complaint,
plaintiff alleges that in the third year of her fellowship, she was denied the title of "instructor," and denied an appointment to the full-time faculty of the College, because of her race, in violation of 42 U.S.C. § 1981 (1982).
Defendants move for summary judgment on each of the six claims. Summary judgment under Fed. R. Civ. P. 56 is a "drastic device"
-- one that our Court of Appeals has applied rigidly and "with some timidity" to insure that a litigant is not deprived of the right to a jury trial.
At the same time, however, our Court of Appeals has recognized that, [s]ummary judgment . . . is a valuable tool for piercing conclusory allegations and disposing of unsupportable claims prior to trial."
The moving party has the burden of proving "the absence of any material issue genuinely in dispute."
To defeat a motion for summary judgment, the opposing party may not rest on mere conclusory allegations or denials, but must set forth, by competent evidence, specific facts showing that there is a genuine issue for trial.
The Court "cannot try issues of fact; it can only determine whether there are issues to be tried,"
and must resolve "all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought."
Mindful of these principles, the Court is convinced that defendants have met the heavy burden of proving that summary judgment is warranted.
Defendants seek summary judgment on plaintiff's Title VII claim on three grounds: first, they argue that the appointment to the voluntary attending staff (and the concomitant appointment to the voluntary faculty) is not an employment opportunity within the terms of Title VII; second, they argue that plaintiff's Title VII claims are time barred because plaintiff failed to file a complaint with the proper administrative agencies within 300 days of the alleged discriminatory act; and third, they assert that the undisputed facts show that the denial of plaintiff's application for voluntary privileges was based upon a nondiscriminatory reason that was not pretextual. Because the resolution of the issue of time-bar could obviate the need to reach questions going to the merits of plaintiff's claim, the Court will address the issue first.
Plaintiff asserts that she first applied for voluntary admitting privileges in August, 1981, while defendants assert that she applied on January 8, 1982. In any event, the application was denied by Dr. Douglas in a letter dated February 26, 1982, which stated:
I've received your request for admitting privileges to the New York Hospital. At the present time the admitting privileges are restricted to former chief residents and new fulltime appointees within the various categorical divisions of the department.
Pursuant to the Hospital's by-laws, Dr. Beverley requested a review of Dr. Douglas' decision. Upon review, the decision first was reaffirmed first by the Promotion and Privileges Committee of the Hospital's Department of Medicine. Then on June 7, 1982, the Quality Assurance Committee reviewed the denial and decided to "recommend" that privileges be denied to Dr. Beverley for the reasons stated by Dr. Douglas. After granting Dr. Beverley a hearing, the Hospital's Medical Board recommended to the Hospital's Board of Governors, on September 14, 1982, that privileges be denied.Plaintiff was advised that the Medical Board chose to make the recommendation because:
[A]s you have been advised by Dr. Douglas, the granting of medical staff membership in the Hospital's Department of Medicine is presently limited to former chief residents and new full-time appointees within categorical divisions of the Department. In addition, until a full-time division chief is appointed in your subspeciality area of gastorenterology, the Department of Medicine does not intend to add any full-time or voluntary attending physicians in that division.
On November 17, 1982, the Board of Governors notified plaintiff that the recommendations of the Medical Board had been accepted. The Board stated, however, that "[b]efore this decision becomes final, you may request an appearance before the Board of Governors in accordance with . . . [the Society's] By-Laws." Plaintiff did appear; subsequently, on February 11, 1983, she was notified that the decision to deny her application "has been made final."
Plaintiff then filed a charge of discrimination with the Equal Employment Opportunities Commission ("EEOC") on March 31, 1983, alleging that the February 11, 1983 notification was the date "the denial was finalized." The EEOC referred the charge to the New York State Division of Human Rights, pursuant to 42 U.S.C. § 2000e-5(c) (1982). On April 4, 1984, the Division waived the required deferral period and agreed to allow the EEOC to investigate the charge. Upon investigation, the EEOC determined that it had no jurisdiction because the charge had not been timely filed, and provided plaintiff with a right to sue letter on July 13, 1983. Defendant urges the Court to adopt the EEOC's finding that the charge was not timely filed. A charge must be filed with the EEOC within 300 days of the alleged unlawful employment practice, where, as here, the charge was filed with, or referred to, a State agency.
Plaintiff's charge was not officially filed with the EEOC until after the Division had waived deferral and referred the charge back to the EEOC on April 4, 1983.
Thus, the last act of alleged discrimination must have taken place within 300 days of April 4, 1983. Defendants claim that the last act of alleged discrimination occurred on February 26, 1982, when Dr. Douglas denied plaintiff's application for voluntary admitting privileges. Plaintiff claims, however, that the last act occurred when that denial became final, on February 11, 1983, which was within the 300-day period.
While defendants do not dispute that Dr. Douglas' February 26, 1982 denial of plaintiff's application was reviewed by several higher authorities, they contend that Dr. Douglas' denial was the "operative decision" that triggered the running of the statute of limitations period. They assert that under the holdings of Delaware v. Ricks,
and Chardon v. Fernandez,
the subsequent reaffirmations of Dr. Douglas' decision are immaterial to the timeliness of plaintiff's charge. The Court disagrees. The denial of plaintiff's application was not final until the Board of Governors accepted the recommendation of the Medical Board on February 11, 1983, after meeting with plaintiff. The earlier "decisions" of the Quality Assurance Committee and the Medical Board were explicitly phrased as "recommendations" rather than final determinations. Indeed, even the first decision of the Board of Governors on November 17, 1982 stated that plaintiff could meet with the Board personally before "this decision becomes final." Throughout the many levels of review, until the Board of Governors met with plaintiff and issued its final decision, there was a prospect, however, slight, that Dr. Douglas' recommendation would not be accepted.
In Ricks, the Supreme Court held that the fact that the plaintiff had filed a grievance after receiving notice of the decision did not toll the statute of limitations, as the grievance procedure was a "remedy for the prior decision, not an opportunity to influence the decision before it is made."
The reviews of the Medical Board and Board of Governors here were an integral part of the decision-making process, rather than a collateral proceeding analogous to a grievance procedure. In Ricks, there was a similar decision-making process, wholly apart from the grievance procedure: the Faculty Committee on Promotions and Tenure first decided whether to recommend a teacher for tenure, that decision was reviewed by the Faculty Senate, then reviewed by the Board of Trustees. The Supreme Court adopted the decision of the District Court that the statute of limitations began to run on the date of the Board of Trustees' decision. The Court did not hold, as defendants urge this Court to, that the statute of limitations was triggered by the initial ...