many forms. Some acts, if taken in isolation, may be ambiguous. The apparent existence of a discriminatory motive or effect may be perceptible only with repetition or over time.
Even unambiguously biased behavior in the workplace is not all alike. Some consists of acts directed at the employee by co-workers, but which reflect no more than the individual prejudices of the actors. Some involves the product of explicit, employer-promulgated policies, practices or mechanisms. There are a myriad of intermediate situations, which may include employer tolerance of employee bias, covert employer-sponsored discrimination and other variations. Nor are these categories neat and mutually exclusive. Rather, they are points along a continuum ranging from no employer involvement through employer awareness to employer tolerance and ultimately employer sponsorship.
The situation of the individual employee, particularly with reference to the prospect of litigation, can vary tremendously depending upon circumstances such as these. The employee at first may not be certain that he or she is confronting discrimination at all. Even where the prejudice is manifest, it may be unclear whether the employer fairly can be taxed with responsibility. And even where the employer is responsible, an employee who seeks to hold on to his or her job may face a difficult choice in deciding whether or not to sue. See generally When is Enough, Enough? 31 AM. BUS. L.J. at 377, 393-94.
The first two factors in the Berry test -- subject matter and frequency -- bear on whether acts both within and without the limitation period are part of "a discriminatory policy or practice" chargeable to the employer, Cornwell, 23 F.3d at 704, as distinguished from unrelated if deplorable manifestations of individual prejudice. They thus reflect the view that a claim involving an employer's discriminatory policy or practice should not always be cabined by the statutory limitation period in recognition of the special difficulties with which an employee may have to deal.
The third factor -- whether the nature of the events outside the limitation period should have triggered awareness of the need to assert one's rights -- evokes considerations central to statutes of limitations generally. Moreover, as suggested by the passage from Berry quoted above, it generally is regarded as the core and most important element of the Berry test. See Selan, 969 F.2d at 565-66 & n.7; Sabree v. United Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990); Hendrix v. City of Yazoo City, 911 F.2d 1102, 1104 (5th Cir. 1990); Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 n.5 (5th Cir. 1985).
Statutes of limitation, of course, are intended to protect against stale claims. Havens, 455 U.S. at 380. They do so out of a sense that prospective litigants have a right to repose after a legislatively determined period, as well as a concern that the passage of too much time without assertion of a claim may prejudice the ability of the defendant to obtain a fair resolution. United States v. Kubrick, 444 U.S. 111, 117, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979); Gadsden Memorial Hospital, 835 F.2d at 800. But they are not without exception, and the limits of the continuing violation doctrine perhaps are best understood in the broader context of the numerous doctrines that ease the rigor with which statutes of limitation are applied.
One such ameliorating doctrine is the discovery rule, which holds that certain causes of action, notably fraud, accrue (i.e., the limitation period begins to run) only when the plaintiff knows, or in the exercise of reasonable diligence should know, of the existence of or basis for the claim. E.g., Woods v. Candela, 13 F.3d 574 (2d Cir. 1994); Leon v. Murphy, 988 F.2d 303 (2d Cir. 1993); Gnazzo v. G.D. Searle & Co., 973 F.2d 136 (2d Cir. 1992) (Connecticut law); 15 U.S.C. § 77m (1988); N.Y. CPLR 203(g) (McKinney 1990 & Supp. 1995). Another is the principle that the limitation period is tolled during a defendant's fraudulent concealment of facts that would alert the plaintiff to the plaintiff's claim. See Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 48 (2d Cir. 1985). A defendant may be equitably estopped to assert the statute where the defendant's actions cause the plaintiff to forebear from asserting the plaintiff's rights. See Hoemke v. New York Blood Center, 720 F. Supp. 45 (S.D.N.Y. 1989); Barrett v. Hoffman, 521 F. Supp. 307 (S.D.N.Y. 1981); Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713 (1972). The limitation period, at least in New York and no doubt elsewhere, is tolled with respect to a malpractice claim against a professional during the course of treatment in which the alleged malpractice occurred. E.g., McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108 (1982); Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 321, 187 N.E.2d 777 (1962). There are other examples. See, e.g., Cullen v. Margiotta, 811 F.2d 698, 721-24 (2d Cir.), cert. denied, Nassau County Republican Committee v. Margiotta, 483 U.S. 1021, 97 L. Ed. 2d 764, 107 S. Ct. 3266 (1987) (duress). But they all boil down to a simple proposition: the statutory period of limitation does not run while the plaintiff fails to bring suit as a result of blameless ignorance, culpable action by the defendant, or the continued existence of a close and important relationship that reasonably may be regarded as making the commencement of litigation inappropriate or unduly costly in human terms.
Against this background, the Berry test comes into sharp focus. If the discriminatory acts within and without the limitation period are sufficiently similar and frequent to justify a conclusion that both are part of a single discriminatory practice chargeable to the employer, the continuing violation doctrine permits assertion of claims based on both in recognition of the special problems inherent in the employment context. But the third of the Berry factors limits the scope of this otherwise boundless exception to the statute of limitations by permitting suit on a continuing violation theory only if the circumstances are such that a reasonable person in the plaintiff's position would not have sued earlier. See, e.g., West, 45 F.3d at 755; Martin, 3 F.3d at 1415 n.6. This proviso gives due regard both to the defendant's interest in being protected against stale claims and to the plaintiff's interest in adopting strategies designed to deal both with employment discrimination and of being certain that matters have reached a point affording a proper basis for resort to the courts. See generally When is Enough, Enough? 31 AM BUS. L.J. at 393-94.
In this case, the Court assumes arguendo that Dr. Johnson has satisfied the first prong of the Berry standard.
His case with respect to the second prong is much weaker, as the alleged discriminatory behavior apart from the 1987 and 1994 privileges actions consists of less than a handful of racial epithets allegedly directed at Dr. Johnson over a period of many years. (Turgeon Dec. P 4; Fortuna Affs.) Without in any way condoning incidents of the character alleged, the evidence, taken in the light most favorable to Dr. Johnson, may not establish a pattern of frequent incidents of racial bias. But these issues need not be determined conclusively, as the Court is satisfied that Dr. Johnson has not satisfied the third prong of the Berry standard.
When Dr. Johnson's vascular and thoracic surgery privileges were revoked in 1987, he was well aware of the basis for the charges of racial discrimination included in the amended complaint in this action. In proceedings before the hospital's Peer Review and Ethics Committee on February 24, 1987, Dr. Johnson characterized the revocation of his privileges as racially motivated. (Def. Ex. 26, PP 3-4; Def. Ex. 27, PP 3-4) He charged in the 1987 State court action that the initial recommendation to terminate those privileges was the product of racial prejudice. (Def. Ex. 33, P 13) One of the affidavits on this motion attesting to an alleged instance of racial bias even was submitted in Johnson I. (Fortuna Aff., Feb. 5, 1991) Yet for reasons unknown, Dr. Johnson did not make any claims in Johnson I under the civil rights laws.
The question when a plaintiff in a discrimination case "has had enough" so as to warrant the commencement of litigation may be subtle and difficult. The Court acknowledges that many employees who seek to hold on to their jobs in the face of a hostile environment face hard choices. Fine lines sometimes must be drawn as to when a level of harassment or prejudice has risen to a level sufficient to charge the victim with knowledge that the victim must assert or lose his or her rights. See When is Enough, Enough? 31 AM. BUS. L.J. at 377. Such cases frequently may raise genuine issues as to the applicability of the continuing violation doctrine. But this is not such a case. Here Dr. Johnson brought two lawsuits within three years of the 1987 revocation of his privileges. He made a claim of racial discrimination in the State court case, but not in Johnson I. No reason has been advanced as to why the civil rights claims were not asserted in federal court until more than seven years after the privileges were revoked, and the Court can conceive of none. In consequence, the Court holds that the continuing violation doctrine does not apply and that Dr. Johnson's claims under 42 U.S.C. §§ 1981 and 1985(3) with respect to the 1987 revocation of his privileges are barred by the statute of limitations.
The Tortious Interference Claim
Count V, Dr. Johnson's claim for tortious interference with prospective economic advantage, is based entirely on the assertion that the 1987 revocation of his privileges had a negative effect on contractual relationships that he then had or subsequently had or might have had. (Am Cpt PP 158-66; Johnson Dec. PP 152-54) The parties agree that the claim is governed by New York's three year statute of limitations. N.Y. CPLR § 214 (McKinney 1990). Dr. Johnson argues, however, that the claim is not time-barred because he has been injured within the three year limitation period. The argument, however, must be rejected.
A tort claim of this nature accrues, and the limitation period begins to run, under New York law when the last of the elements of the cause of action, typically injury, exists. Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 933-34, 612 N.E.2d 289 (1993); Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 300, 200 N.E. 824 (1936). As the wrongful conduct underlying the claim all occurred in 1987, and as Dr. Johnson alleged a similar tortious interference claim in 1990 in Johnson I, he cannot deny that the elements of the cause of action were satisfied at least as early as Johnson I. The subsequent injuries alleged are immaterial to the issue of timeliness. Piracci Construction Co. v. Skidmore, Owings & Merrill, 490 F. Supp. 314, 321 (S.D.N.Y.), aff'd 646 F.2d 562 (2d Cir. 1980) (table); see Kronos, Inc., 81 N.Y.2d at 94-95, 595 N.Y.S.2d at 934 (claim for interference with contract not barred, although contract breached before limitation period, because injury first sustained within limitation period). The running of the limitation period was not tolled for the reasons stated above. In consequence, this claim is time-barred as well.
The 1994 Reinstatement Application
Dr. Johnson does not here assert antitrust claims with respect to the 1994 reinstatement application, acknowledging that Johnson I requires him resort to the PHC before bringing such an action. Nor does the tortious interference claim rest in any part on the 1994 events. He does contend, however, that the denial of the reinstatement application violated 42 U.S.C. §§ 1981 and 1985(3).
The defendants argue that Johnson I requires Dr. Johnson to resort to the PHC before proceeding in federal court. In Johnson I the Second Circuit stated:
"Primary jurisdiction demands that Johnson resort to the PHC before seeking redress in federal court. The question whether defendants had a proper medical reason to terminate Johnson's privileges requires a skilled evaluation of whether Johnson provided inadequate treatment to Nyack's patients. This decision necessitates examination of various medical data concerning Johnson's cases. The medical expertise of the PHC will prove extremely helpful in sorting through these complex records and resolving the factual questions at stake." 964 F.2d at 122.
Dr. Johnson's response to defendants' primary jurisdiction argument is that the PHC "does not even have jurisdiction to hear a federal civil rights claim." He asserts also that he still must be given an opportunity to prove that any "legitimate" reasons for denial of reinstatement were pretextual. (Pl. Br. 36) He is right on both counts, but that nonetheless does not defeat defendants' argument, given the premises of the Second Circuit's ruling in Johnson I.
The PHC has no more jurisdiction over antitrust claims than it does over civil rights claims. Moreover, even a PHC ruling adverse to Dr. Johnson on the 1987 revocation of privileges would not necessarily have foreclosed his antitrust claim, just as an adverse ruling on the 1994 reinstatement issue would not necessarily foreclose his civil rights claims. The Second Circuit nevertheless held that the federal courts were likely to benefit from a PHC review of the medical issues before they considered the antitrust claims. While the PHC's action on Dr. Johnson's complaint with respect to the 1987 events demonstrates that the Court of Appeals' hope pending relate solely to the 1994 reinstatement application. The legal issues decided on this motion are unique to the claims relating to the 1987 events. Appellate review of those issues therefore will involve issues entirely distinct from the aspect of the case not yet disposed of. Accordingly, there is no just reason for delay, and the Clerk is directed to enter judgment pursuant to FED. R. CIV. P. 54(b) dismissing Counts I, II and V and so much of Counts III and IV as relate to the 1987 revocation of privileges.
Dated: June 27, 1995
Lewis A. Kaplan
United States District Judge