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April 30, 1993

CLAUDIA I. HENSCHKE, PH.D., M.D., Plaintiff,

The opinion of the court was delivered by: LORETTA A. PRESKA


 Plaintiff Dr. Claudia Henschke is employed by The New York Hospital-Cornell Medical Center (the "Hospital") as a treating physician specializing in radiology and by Cornell University Medical School ("Cornell") as a Professor of Radiology. Second Amended Complaint dated February 5, 1993 (the "Complaint") P 5. The Hospital is a private teaching hospital located in New York City, and Cornell is a medical school affiliated with the Hospital. Id. P 2. Dr. Henschke was hired by the Hospital as an Assistant Attending Radiologist in the Department of Radiology and by Cornell as an Assistant Professor of Radiology in 1983. Id. 7. In 1990, Dr. Henschke was granted tenure by Cornell and as of January 1, 1992, Dr. Henschke was promoted to Attending Radiologist by the Hospital. Id. PP 11-12. Also effective January 1, 1992, Dr. Henschke was appointed Division Chief of a division of the Hospital known as Starr 9 of the Radiology Department. *fn1" Id. P 16. Dr. Henschke's affiliation with the defendants is ongoing. Id. P 5.

 Dr. Henschke's allegations arise from the appointment of Dr. Michael D.F. Deck as the Acting Chair of the Radiology Department to replace Dr. Joseph P. Whalen, who resigned as the Chair of the Department of Radiology and Radiologist-in-Chief. Id. at PP 17, 19. It is plaintiff's contention that Dr. Deck is a less qualified male, id. at P 19, and that plaintiff was not appointed as Acting Chief of the Radiology Department due to gender-based discrimination. Id. P 20, 21, 24. Additionally, Dr. Henschke alleges that since the time Dr. Deck was appointed to head the Radiology Department she has been denied information, equipment and personnel necessary for the proper conduct of the affairs of Starr 9 and that this has had a negative impact on patient care. Id. P 23.

 On September 21, 1992, Dr. Henschke filed a charge of discrimination against the defendants with the Equal Employment Opportunity Commission ("EEOC") containing the same allegations of gender-based discrimination as the Complaint. Id. P 3. At the time of the EEOC filing, Dr. Henschke requested that the EEOC issue an early right-to-sue letter, Affidavit In Support of Cornell's FRCP 12(a) Motion ("Santoro Affidavit") Exhibit 3. The right-to-sue letter was issued by the EEOC on October 22, 1992. Id. at Exhibit 4. On November 16, 1992, plaintiff commenced the instant action.

 Defendants have moved to dismiss plaintiff's cause of action asserted under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq. ("Title VII"), on the basis that plaintiff received a right-to-sue letter from the EEOC prior to 180 days from the filing date of the charges. Additionally, defendants move to dismiss plaintiff's causes of action under Title IX of the Education Act Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. ("Title IX") on the basis that Title VII preempts claims of employment discrimination under Title IX. In the alternative, the Hospital moves for summary judgment on the causes of action arising under Title IX on the grounds that the Hospital does not receive federal funding within the meaning of Title IX.


 A district court should grant a motion to dismiss only if, after reviewing the complaint, it appears beyond doubt that plaintiff can prove no set of facts in support of her claim entitling her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), cert. granted, 61 U.S.L.W. 3523 (January 4, 1993). In reviewing a motion to dismiss, "the factual allegations in the complaint must be accepted as true, and all reasonable inferences must be drawn in favor of the plaintiff." Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988). Therefore, the Court's task is simply to determine whether the plaintiff has a legal right to seek relief based on the allegations contained in the complaint. Stern v. General Electric Co., 1991 U.S. Dist. LEXIS 19091, dkt. 86 Civ. 4055, 1992 WL 8195 at *4 (S.D.N.Y. Jan. 14, 1992).

 When reviewing the motion to dismiss, the Court is limited to consideration of the four corners of the complaint. However, in certain instances, it is appropriate for the district court to consider documents neither referenced in, nor annexed to, the complaint. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991) (where plaintiff sought revision of stock purchase agreement, on a motion to dismiss the district court could consider the stock purchase agreement, offering memorandum and warrant); I. Meyer Pincus and Assoc. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991) (court may consider prospectus on motion to dismiss where plaintiff relied solely on that document in formulating the complaint and it is integral to the complaint), cert. denied, U.S. , 112 S. Ct. 1561 (1992). The Second Circuit has identified two determining factors in evaluating materials not contained in the complaint on a 12(b)(6) motion: (1) are these documents which plaintiff either has in her possession or has knowledge of; and (2) did plaintiff rely upon these documents in bringing suit. Cortec Indust., Inc. v. Sum Holding L.P., 949 F.2d at 48. A finding that the plaintiff had knowledge of the documents is significant because

the problem [that] arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason - requiring notice so that the party against whom the motion to dismiss is made may respond - that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.

 Id. at 48.

 All parties to this action have submitted affidavits and documents outside the scope of the pleadings in this matter. Because defendants have moved to dismiss, the Court will not consider any of the documents submitted by the parties other than the moving and responding affidavits of counsel, the various memoranda of law filed by the parties, the "Spencer Waiver"; Affidavit of Howard Ganz Exhibit 2, Santoro Affidavit Exhibit 3, Vladeck Affidavit Exhibit B; and the Notice of Right to Sue. Santoro Affidavit Exhibit 4, Vladeck Affidavit Exhibit C. *fn2" These last two documents are in plaintiff's possession, and the filing of the present litigation before the 180 days had passed from the filing of the charges with the EEOC evidences the fact that plaintiff relied upon these documents in filing her action. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42.

 To the extent that the Hospital's motion to dismiss the Title IX claims is converted to a motion for summary judgment, the Court will consider the Fuller Affidavit. If on a 12(b)(6) motion:

matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to ...

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