Opposition Brief — Stouder Memorial Hospital v. Christopher

Supreme Court brief1991

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Case No. 91-684

In The

Supreme Court of the United States

October Term, 1991

STOUDER MEMORIAL HOSPITAL,

Petitioner

ANASTASIA S. CHRISTOPHER,

Respondent

Petition For a Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DENNIS A. LIEBERMAN

FLANAGAN, LIEBERMAN,

HOFFMAN AND SWAIM

318 West Fourth Street

Dayton, Ohio 45402

(513) 223-5200

Attorney for Respondent

QUESTION FOR REVIEW

Whether a party who was an employee of —

a hospital and had been granted temporary

privileges as a scrub nurse but later

denied privileges can be an “employee or

applicant for employment" for

jurisdictional purposes under 42 U.S.C. §

2000 e-3.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW...... 1

TABLE OF AUTHORITIES... ccccccccccece iii

REFERENCE TO OPINIONS BELOW....... 1

STATEMENT OF THE CASE. .cccccccsccs 2

ARGUMENE ccccccesecescebeeeeberesees 9

CUORNCLTAISION.cccccecseseedseoossveseees 19

APPENULAscccoscescosesewegseeee eu 21

TABLE OF AUTHORITIES

CASES PAGE

Armbruster v. Quinn, 711

F.2d 1332 (6th Cir. 1983)... 9

Baily v. USX Corp., 850

F.2d 1508 (11th Cir. 1988).. 17

Dunlop v. Carriage Carpet Co.,

548 F.2d 139 (6th Cir. 1977). 18

Gomez v. Alexian Bros. Hosp.,

547 F. Supp. 484 (E.D. Penn.

TE CS 10,11,13,14

Griggs v. Duke FPower Co., 401

eee OE OS ae 12

Lutcher v. Musiciaris Union

Local, 47 633 F.2d 880

ES Se 11

Pantchecko v. C.B. Dolge Co.,

581 F.2d 1952 (2nd Cir. 1978).17

Pao v. Holy Redeemer Hosp., 547

F. Supp. 484 (E.D. Penn.

MP a ee a ee 10

Puntolillo v. New Hampshire

Racing Comm., 375 F. Supp.

SGee TOLN.M. 1974)....-...- 10

Rutherford v. American Bank

of Commerce, 565 F.2d 1162

ee ey 5 18

Sibley Memorial Hospital v.

Wilson, 488 F.2d 1338

eS ae) eo + oe

Spiredes v. Reinhardt, 613 F.2d

$26 (D.C. Cir. (1978)..... 15

Tipler v. E.I. Du Pont

de Nemours Co., 443

F.2d 125, (6th Cir. 1971). 10

STATUTES

42 U.S.C. §2000e-2(a) (1)... 9,12,13,14

U.S.C. §2000e-3(a)........ 9,13,14

In the Supreme Court of the United States

October Term

Stouder Memorial Hospital, Petitioner,

Vv.

Anastasia S. Christopher, Respondent

Brief in Opposition to Petition for

a Writ of Certiorari to the United

States Court of Appeals for the

Sixth Circuit

OPINIONS BELOW

The opinion of the Court of Appeals

for the Sixth Circuit filed on June 24,

1991, is reported at 936 F. 2d 870 and is

included in the Appendix hereto. The July

24, 1991 judgment denying Petitioner's

request for a rehearing also is in the

appendix hereto. The opinions of the

United States District Court, Southern

District of Ohio are also included in the

Appendix.

STATEMENT OF THE CASE

Ms. Christopher, a female nurse, was

awarded a B.S. degree in nursing from The

Ohio State University in 1974 and a M.S.

degree in nursing from the same institution

in 1977, with particular emphasis in

maternal and child health. (A.4)

From 1978 until 1983, Ms. Christopher

was a faculty member at the Wright State

University School of Nursing. In June

1983, she filed a sex discrimination claim

against Wright State. Her claim eventually

resulted in a Title VII lawsuit which was

resolved prior to trial. (A.4)

Ms. Christopher, and her husband Dr.

Charles Christopher, M.D. decided to move

to Troy, Ohio after their pretitené at

“Wright State University. Dr. Christopher

formed a partnership with Dr. Gerald

Dysert, and they then performed deliveries

and gynecological surgery at Stouder

Memorial Hospital (hereinafter "Stouder").

(A.5)

Stouder hired Ms. Christopher on

June 10, 1985. Her formal title was "pool

nurse". She also worked as an instructor

for other nurses in the Ob/Gyn department.

(A.5)

One of Ms. Christopher's duties during

her employment at Stouder was to prepare

the obstetrical nurses to assist as scrub

nurses during cesarean section procedures.

Ms. Christopher had no prior experience as

exclusively a scrub nurse, but she had

previously assisted in surgery at a

different hospital. (A.6)

Therefore, Ms. Christopher received

her training as a scrub nurse in July and

August of 1985 in the Stouder operating

room. Ms. Christopher was to then instruct

the other nurses in obstetrics, instead of

the hospital sending them out to a

different hospital for training. (A.6)

In July, 1985 Christopher applied to

Stouder to obtain limited privileges to act

aS a private scrub duty nurse at the

hospital. The procedure for deciding on

privileges was that the application would

remain with the medical staff secretary

until complete. The application would then

be passed on to the Executive Committee of

the Medical Staff, then to the full medical

staff and finally to the Board of Trustees.

During the period in which the application

was being’ considered, the hospital's

president was empowered to grant temporary

privileges for a period of ninety days.

The Executive Committee approved this

request on August 6, 1985, and John Grubb,

President of Stouder, granted Christopher

temporary privileges on October 23, 1985.

(A.7)

After her temporary privileges were

granted, Christopher began to act as a

private scrub nurse for her husband and his

partner.

Private duty scrub nurses are normally

paid by the doctors with whom they work.

They are not employees of the hospital

itself, and the hospital does not cover

their insurance or benefits. However,

during her training period, and during the

tenure of her temporary privileges status,

Christopher was paid and insured by the

hospital. (A.8)

In January, 1986, Ms. Swisshelm hired

a special obstetrics supervisor to perform

the training tasks Christopher was hired to

perform. Mr. Grubb approved this new plan,

and on January 10, 1986, Christopher was

informed that her services as a clinical

nurse specialist would no longer be needed.

Ms. Christopher has never been terminated

as a "pool nurse" she has just never been

called to work. (A.5, A.105)

Ms Christopher then applied for

limited privileges to act as a scrub nurse

for her husband and Dr. Dysert.

In processing the application for

limited privileges, Dr. Mark Hess, a member

of the Executive Committee at Stouder wrote

a memorandum to the Executive Committee

which disclosed in part a conversation he

had with L.R. Jordan, Chief Executive of

Miami Valley Hospital, Ms. Christopher's

prior place of employment. The memorandum

in part, disclosed the fact that Ms.

Christopher had sued Miami Valley Hospital

for sex discrimination. (A.11)

On February 4, 1986 the Executive

Committee voted to deny Ms. Christopher's

application for limited privileges. Her

renewed application for limited privileges

was denied on May 6, 1986. (A.13)

Ms. Christopher testified about an

uncontroverted conversation she had with

Dr. Hess in January 1986 when he admitted

to Ms. Christopher that "If you hadn't some

legal action prior to this, this might not

have occurred." She also testified about a

second uncontroverted conversation she had

with Dr. Hess on March 9, 1986 in which he

told her that she was having problems

because of her prior legal action at Miami

Valley Hospital. (A.14)

While the court dismissed all of Ms.

Christopher's other claims at the close of

plaintiff's case, it found that she had

established her claim of retaliation. In

reaching this result the court found that

Ms. Christopher's prior sex discrimination

action had been mentioned enough times in

the process surrounding her applications

for limited privileges to warrant a

conclusion that Stouder would not have made

the same decision absent the factor of the

prior suit. 7

a ee

Stouder has consistently been speaking

from both sides of its mouth throughout the

course of the instant litigation. On one

hand it produces evidence at trial that Ms.

Christopher was still an employer of

Stouder (A.105). On the other hand it now

argues there is no employment relationship

between Stouder and Ms. Christopher.

The Sixth Circuit correctly affirmed

the trial courts opinion. This Court

should now deny the Petitioner's

application for Writ of Certiorari.

ARGUMENT

The Petitioner claims the instant case

is one of first impression because the

cases addressing the issue of who is

protected under Title VII concern 42 U.S.C.

§ 2000 e-2(a)(1) and not 42 U.S.C. § 2000

e-3(a). The Petitioner's argument is

flawed for three reasons.

The first reason the Petitioner's

argument is flawed is because it ignores

the overall, underlying purpose of Title

VII.

As the District Court noted and the

Sixth Circuit Court of Appeals affirmed:

"(tjhe term ‘employee' in Title VII ‘must

be read in light of the mischief to be

corrected and the end to be attained.'"

(quoting Armbruster v. Quinn, 711 F. 2d

1332, 1340 (6th Cir. 1983)). In other

words, a hypertechnical, literal

interpretation of Title VII's provisions

will not be countenanced if to do so would

defeat the purpose of the Act-freedom from

employment discrimination. To this end,

courts have time and time again held that

in Title VII cases there need not be a

formal common law employer-employee

relationship. Rather, a Plaintiff is

protected against discrimination if the

Defendant is one "who significantly affects

access of any individual to employment

opportunities ..." Doe v. St. Joseph's

Hosp., 788 F.2d 411, 424 (7th Cir. 1986).

See also, Gomez v. Alexian Bros. Hosp., 698

F.2d 1019 (D.C. Cir. 1983); Pao v. Holy

Redeemer Hosp., 547 F. Supp. 484 (E.D.

Penn. 1982); Puntolillo v. New

Hampshire Racing Comm., 375 F. Supp. 1089

(D.N.H. 1974).

"Title VII of the Civil Rights Act

should not be construed narrowly" Tipler v.

E.I. du Pont de Nemours and Co. 443 F2d

125, 131 (6th Cir. 1971). Therefore, it

has been held by several courts that a

formal employment relationship is not

required. :

Rather, a plaintiff is protected if

the defendant is one "who significantly

affects access of any individual to

employment opportunities." Doe v. St.

Joseph's Hosp., 788 F.2d 411, 422-25 (7th

Cir. 1986) (doctor stated a claim under

Title VII when hospital denied staff

privileges even though doctor was not an

employee of the hospital); Gomez v. Alexian

Bros. Hosp., 698 F.2d 1019, 1021 (9th Cir.

1983) (finding a cause of action under Title

VII when "‘a defendant subject to Title VII

interferes with an individual's employment

opportunities with another employer.'"

(quoting Lutcher v. Musicians Union Local

47, 633 F.2d 880, 883 n.3 (9th Cir. 1980)).

Sibley Memorial Hospital v. Wilson,

488 F.2d 1338 (D.C. Cir. 1973) is very

Similar to the case at bar. The facts in

Sibley involved a male duty nurse who was

not being referred cases because of his

sex. He was not an employee of the

hospital; however the District Court and

B.C. Circuit found that in certain

circumstances control over access to

employment is the key factor in determining

jurisdiction. The Sibley Court reasoned

that:

"The Supreme Court has said

that the Congressional objective

in Title VII is ‘plain from the

language of the statute,' and

that it is ‘to achieve equality

of employment opportunities[.]'"

Id. at 1340-41 (quoting Griggs v.

Duke Power Co., 401 U.S. 424, 429

(1969))."

Stouder argues that Sibley, Gomez, and

Doe are distinguishable because all of

those cases were actions brought under

§2000e-2, which allows a broader range of

persons to sue than §2000e-3 upon which

Christopher relies.

First, while the courts in Doe, Gomez,

and Sibley Mem. Hosp. do rely, to some

extent, on the "any individual" language of

§2000e-2, this language is not the sole

basis of these holdings. For example, in

Sibley Mem. Hosp., the court makes much of

the fact that the general remedial section

of Title VII does not refer only to any

"employee" but provides recourse to

"persons aggrieved." See 42 U.S.C. §2000e-

5(b); 488 F.2d at 1341-42; see also Gomez,

698 F.2d at 1021. The Sibley Court states:

"The fact that the Act purports

to provide remedies for a class

broader than direct employees is

a strong indication that the

proscriptions contemplated by

[§2000e-2]} reach beyond the

immediate employment

relationship."

Sibley Mem. Hosp., 48& F.2d at 1341. It is

important to note that the remedial section

to which the court refers, §2000e-5,

applies equally to plaintiffs suing under

§2000e-2 and §2000e-3. Thus, the courts in

reaching their conclusions in Sibley and

Gomez, were not relying on the "any

individual" language of §2000e-2, but

rather, were discerning the meaning of

"employee" in the Title VII context by

looking to the intent and scope of Title

VII as a whole.

In the instant case, there was ample

evidence presented at trial to demonstrate

that Stouder was an organization which was

capable of and in fact did affect

Christopher's ability to engage in her

employment as a scrub nurse. As the trial

court put it,:

"By discriminating against Plaintiff

and peer ror to grant her privileges

to work in its facility, Defendant

realistically prevents Plaintiff from

performing the job for which she was

hired by the physicians. This

clearly interferes with

Plaintiff's employment

relationship with the hiring

physicians and with her

opportunity to perform her work."

(A.73)

To accept the Petitioner's argument

would clearly vitiate the purpose of the

act. There can be no doubt that Stouder's

action in denying privileges to Ms.

Christopher is preventing Ms. Christopher

from working at Stouder. The economic

realities of the instant case are that

Stouder has successfully prevented Ms.

Christopher from pursuing her livelihood.

Even using the test proposed by the

Petitioner, i.e., the economic realities

test found in Spirides v. Reinhardt, 613

F2d 826 (D.C. Cir. 1979); there can be no

doubt that the District Court has

jurisdiction.

The second reason why the Petitioner's

argument is flawed is because the

Respondent was an employee of Stouder.

Stouder has consistently maintained

that Mrs. Christopher's status as_ an

employee of the hospital (i.e., a "pool

nurse") never changed. For example, the

third paragraph of Defendant's Answer (R.

19, Answer) denied Respondent's allegation

that "on or about January 10, 1986,

Plaintiff's employment was terminated by

Defendant Stouder Memorial Hospital." (See

R. is Complaint at paragraph 12).

Further, at the trial herein, Petitioner

itself elicited testimony (Sarah Swisshelm

A.105), in an effort to show that

Respondent's position as a "pool nurse"

remained unchanged during the relevant time

period. As a result, Stouder cannot now

argue that Respondent was not an "employee"

entitled to Title VII protection merely

because "tne position to which Respondent

aspired" may not have fallen within a

strict common law employer-employee

relationship.

The third reason the Petitioner's

argument is flawed is because there is

absolutely no question that Ms. Christopher

was a former employee of Stouder.

Time and time again, courts have held

that a claim of retaliation is just as

valid when it is brought by a former

employee as when it is brought by a current

employee. See, e.g., Baily v. USX Corp.,

850 F.2d 1506 (11th Cir. 1988) (former

employee entitled to protection under

retaliation provisions). Pantchecko v.

C.B. Dolge Co., Inc., 581 F.2d 1052 (2d

Cir. 1978) (former employee entitled to

bring retaliation claim for denial of

postemployment reference letters) ;

Rutherford v. American Bank of Commerce,

565 F.2d 1162 (10th Cir. 1977) (former

employee entitled to relief for retaliatory

acts of former employer). See also, Dunlop

v. Carriage Carpet Co., 548 F.2d 139 (6th

Cir. 1977) (Former employee entitled to

protection from retaliation under

F.L.S.A., which defines "employee" in same

manner as Title VII). Here, there is

absolutely no questions that Mrs.

Christopher was at least a former employee

of Stouder at the time of the proven

retaliation. To hold that an employer can

insul e itself from a charge of

retaliation by waiting until a formal

employer-employee relationship no longer

exists would defeat the major purpose for

including retaliation as prohibited conduct

under Title VII.

CONCLUSION

It is interesting to note that the

Petitioner does not claim in it's petition

for Writ of Certiorari that it did not

retaliate against Ms. Christopher.

Instead, the Petitioner asks this Court to

evade its responsibility as the protector

of minorities in this Country and to

vitiate the purpose of the Civil Rights

Act.

The reasons for this request as

suggested in Petitioner's Conclusion is

that the Equal Employment Opportunity

Commission and our Court system has seen "a

great increase in the number of cases filed

in recent years." The Petitioner fails to

provide support for it's broad sweeping

statement and further fails to draw a

causal relationship between the instant

case and the alleged" staggering number of

court cases."

The Petitioner's argument is a weak

attempt to play on the sympathies of this

Court for a burdened Court system. The

unsupported argument is not consistent with

the general purpose of the Civil Rights Act

and does not require this Court to grant

Petitioner's Writ of Certiorari.

Respectfully submitted,

Dennis A. Lieberman

FLANAGAN, LIEBERMAN,

: HOFFMAN AND SWAIM

318 West Fourth Street

Dayton, Ohio 45402

(513) 223-5200

Attorney for Respondent

APPENDIX

Judgment Denying Rehearing..... A.1

Decision of the Sixth Circuit

Court of Appeals dated June

24, E99hecees eeeences ,ees ee ease A.2

Order of the District Court

for the Southern District of

Ohio Denying a Motion for

New Trial, dated March 30,

Journal Entry of the District

Court for the Southern District

of Ohio Modifying Decision

on Remedy dated February 5,

3. . rrrrerrrery errr Cerrerern A.69

Decision of the District Court

for the Southern District of Ohio

GateG July 25, 966... cccvoss A.73

Transcript pages 571-572 of

Sally Swieehelm...ccccececees A.105

Case Nos. 90-3400/3429

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

ANASTASIA S. CHRISTOPHER

Plaintiff - Appellee Cross - Appellant

¥.

STOUDER MEMORIAL HOSPITAL

Defendant - Appellant Cross - Appellee

BEFORE: JONES and SUHRHEINRICH, Circuit

Judges; and FEIKENS, District Judge.

Upon consideration of the petition for

rehearing filed by the appellant cross -

appellee, the court concludes that the

issues raised were fully considered upon

the original oral argument and decision of

this case,

It is ORDERED that the petition for

rehearing be, and it hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

ss Leonard Green, Clerk

Filed July 24, 1991

A-1

Nos. 90-3400/3429

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Anastasia S. Christopher,

Plaintiff-Appellee,

Cross-Appellant,

On Appeal from the

United States District

Vv. Court for the Southern

District of Ohio.

Stouder Memorial Hospital,

Defendant-Appellant,

Cross~Appellee.

Decided and Filed June 24, 1991

Before: JONES and SUHRHEINRICH,

Circuit Judges; and FEIKENS, Senior

District Judge.*

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Stouder Memorial

Hospital ("Stouder"), appeal the trial

court's judgment for the plaintiff-appellee

Anastasia Christopher in this Title VII

A-2

civil rights action. Christopher cross-

appeals the court's refusal to award her

back pay on her retaliation claim.

Christopher, a female nurse, was

awarded a B.S. degree in nursing from Ohio

State University in 1974 and a M.S. degree

in nursing from the same ‘institution in

1977, with particular emphasis in maternal

and child health. She is married to

Charles Christopher, M.D., a practicing

obstetrician and gynecologist.

From 1978 until 1983, Mr. Christopher

was a faculty member at the Wright State

University School of Nursing. In June

1983, she filed a sex discrimination claim

against Wright State. Her claim eventually

resulted ina Title VII lawsuit which was

resolved prior to trial. No details about

Christopher's charge or settlement are part

of the record in this case.

During the lawsuit, Christopher's

husband, Charles, was also experiencing

difficulties with his hospital, where he

A-4

was head of ebetetrics. and the couple

decided to move to Troy, Ohio. Charles

formed a partnership with Dr. Gerald

Dysert, who was performing deliveries and

gynecological surgery at Stouder when Dr.

Christopher joined him in practice.

During the spring of 1985, Ms.

Christopher was hospitalized for surgery at

Stouder. During her recovery she discussed

the possibility of nursing employment at

Stouder with Sally Swisshelm, Director of

Nursing. Christopher told Swisshelm that

she had had discussions with her husband

and his partner about working as a "scrub

nurse" for them during surgery. Stouder

hired Christopher on June 10, 1985. Her

formal title was "pool nurse" although it

appears she had been hired to work in some

sort of capacity as a trainer for other

nurses in the Ob/Gyn department.

After a brief period, Christopher's

A-5

uncertain status resulted in tension with

the other nurses. This was in part because

she was attempting to train nurses many of

whom [2] had been at Stouder for many

years. One of Christopher's duties during

her work at Stouder was to prepare the

obstetrical nurses to assist as_ scrub

nurses during cesarean section procedures.

Apparently, everyone agreed that

Christopher herself needed training in this

area, since she had very little prior

experience as a scrub nurse. As a result,

Christopher began to train in the Stouder

operating room in July and August of 1985.

The apparent plan was that Christopher

would pass on her training to other nurses

in obstetrics, rather than sending the

nurses to another hospital for training.

In July, 1985, Christopher applied to

Stouder to obtain limited privileges to act

as a private duty scrub nurse at the

A-6

hospital. The procedure for deciding on

privileges was than the application would

remain with the medical staff secretary

until complete. The application would then

be passeud on to the Executive Committee of

the Medical Staff, then to the full medical

staff and finally to the Board of Trustees.

During the period in which the application

was being’ considered, the hospital's

president was empowered to grant temporary

privileges for a period of ninety days.

The Executive Committee approved ~this

request on August 6, 1985, and John Grubb,

President of Stouder, granted Christopher

temporary privileges on October 23, 1985.

After her temporary privileges were

granted, Christopher began to act as a

private scrub nurse for her husband and his

partner. A scrub nurse's duties are

primarily to prepare instruments’ for

surgery, to hand them to the surgeon during

A-7

the operation and to clean up after the

operation. As of 1985, there were only two

nurses acting in the capacity of private

scrub nurse. According to Ms. Nagle,

operating room supervisor, there had been

only one prior experience with a private

duty scrub nurse in her thirty years

experience with surgery at Stouder.

Normally, the procedure at Stouder was for

regular nurses employed by the hospital to

act as scrub nurses.

Private duty scrub nurses are normally

paid by the [3] doctors with whom they

work. They are not employees of the

hospitals itself, and the hospital does not

cover their insurance or benefits.

However, during her training period, and

during the tenure of her temporary

privileges status, Christopher was wate and

A-8

insured by the hospital.

In January, 1986, Ms. Swisshelm

concluded that the obstetrical nurses were

not obtaining their new skills fast enough

and hired a special obstetrics supervisor

to perform the training tasks Christopher

was hired to perform. Grubb approved this

new plan, and on January 10, 1986,

Christopher was informed that her services

as a clinical nurse specialist would no

longer be needed. It is not clear from the

record whether Christopher was actually

fired at this point, or whether’ she

remained on the schedule as a "pool nurse."

Christopher objected to Stouder's

decision and hired counsel to represent her

A-9

against the hospital. In the meantime,

her temporary privileges had expired.

Apparently, one of her references had not

responded to the hospital's request for a

reference letter because he had moved his

practice. He was later contacted and

Christopher's file was completed on January

26, 1986.

Before Christopher's application for

limited privileges was reviewed by the

Executive Committee, Ms. Swisshelm was

asked to review Christopher's competence.

In a memo dated January 31, 1986, she

questioned Christopher's training ability

and characterized her as "disruptive" and

untrustworthy." She noted that Christopher

had written on doctor's progress notes in

[4] contravention on hospital policy even

A-10

after being advised it was inappropriate.

She also asserted that Christopher had

caused "chaos" in both obstetrics and

surgery.

Dr. Mark Hess, a member of the

Execut iyo Committee, also prepared a

memorandum on Christopher. At the request

of the Chief of Medical Staff, Dr.

Ellenbogen, he contacted L.R. Jordan, chief

executive of Miami Valley Hospital, about

Christopher's work when she was stationed

there by Wright State. According to Dr.

Hess's memo, Jordan said that Christopher's

tenure at Miami Valley had been "marked by

severe turmoil," that she had “assumed

authority far beyond what was proper,"

including writing prescriptions for her

husband's countersignature, and that she

had an “endless series of conflicts with

many pene.” He also advised that Miami

Valley insisted on her transfer and she

’

A-11

thereupon sued for sex discrimination.

On February 4, 1986, the Executive

Committee voted unanimously to deny

Christopher's application for limited

privileges. On March 20, 1986, Christopher

"withdrew" her prior application for

limited privileges and filed a second more

limited application. It appears she filed

the second application because she was

informed that her first application had

been too broad. It seems Christopher had

asked for permission to do a number of

procedures normally handled exclusively by

doctors at Stouder. Christopher's second

application was supported by recommendation

letters from her husband, Dr. Dysert and

Dr. Kevin Horvath, a pediatrician

practicing at Stouder.

After consulting with Dr. Ellenbogen,

Chief of Staff, Ms. nagle prepared a set of

standards for private scrub nurses for the

A-12

hospital. These standards included a

requirement that private scrub nurses have

at least one year of experience as a scrub

nurse. Evidently, these standards were

prepared in February, 1986, but were not

approved by the hospital until 1987.

Nonetheless, the standards were used to

prepare a questionnaire for the other

surgery nurses to review Christopher's [5]

qualifications. Virtually, all of the

nurses surveyed found that Christopher was

deficient with respect to the standards.

These results were made available to the

Executive Committee which on May 6, 1986,

again voted to deny Christopher limited

privileges.

This action followed and the parties

agreed to conduct the trial before a

magistrate. A trial was held from July 11-

13, 1988.

Dr. Hess was the only member of the

A-13

Executive Committee to testify at trial.

During his testimony he denied that he had

considered Christopher's prior Title VII

lawsuit for sex discrimination at Miami

Valley in deciding how to vote - on

Christopher's privileges application.

However, the magistrate credited testimony

by Christopher as to two conversations she

had had with Grubb and with Dr. Hess.

Christopher testified that she had talked

to Grubb by telephone in January of 1986

and attempted to negotiate the issue of her

privileges. he reportedly responded, "If

you hadn't had some legal action prior to

this, this might not have occurred." J.

App. at 23. Christopher also recalled a

conversation with Dr. Hess on March 9,

1986, in which he reportediy also told her

that she was having difficulties because of

her prior legal action at Miami Hospital.

While the court dismissed all of

A-14

Christopher's other claims at the close of

plaintiff's case, he found that she had

established her claim of retaliation. In

reaching this result the court found that

Christopher's prior sex discrimination

action had been mentioned enough times in

the process surrounding her applications

for limited privileges to warrant a

conclusion that Stouder would not have made

the same decision absent the factor of the

prior suit. The court also noted that much

of the evidence used to deny Christopher's

second application "seems to have _ been

manufactured to guarantee the result." J.

App. at 31. Specifically, the court found

that the scrub nurse standards drafted by

Ms. Nagle required one year experience as a

scrub nurse, which made Christopher [6]

ineligible. The court found these

standards "plainly discriminatory against

the private scrub nurse concept since Mrs.

A-15

Nagle admitted on the stand that nurses

were sometimes hired directly from nursing

school into the operating room at Stouder."

Id. Finally, the court concluded that Ms.

Nagle could have easily learned that

Christopher would be excluded by the one-

year requirement by looking at her file.

Despite the court's finding in favor

of Christopher on her retaliation claim, it

found that Christopher was not entitled to

back pay. While there was some initial

confusion about whether the court had the

authority to award back pay damages against

Stouder when the hospital was not

Christopher's employer, the court

ultimately determined that back pay was not

appropriate because Christopher had failed

to prove damages.

Recognizing that the hospital had a

strong interest in ensuring that

Christopher was qualified to be a private

A-16

scrub nurse, and at the same time,

acknowledging that the process used to

evaluate Christopher had been flawed, the

court ordered the parties to negotiate a

neutral means for evaluating Christopher's

abilities as a scrub nurse. When the

parties failed to reach a_= reasonable

solution, the court ‘ordered that

Christopher work for six weeks for two

neutral doctors, who would independently

evaluate her performance. When this too

became unworkable, due in part to Stouder's

refusal to cooperate, the court ordered

that Christopher be - granted limited

privileges to work as a private scrub nurse

at Stouder for any doctor who would employ

her. The court was careful to make clear

that it was not forcing Christopher into an

employment relationship with the hospital.

Rather, it was simply undoing the

discriminatory application of heightened

A-17

standards which had been applied to

Christopher.

Ii.

Stouder first contends that the court

lacked jurisdiction to hear this case

because Christopher was neither an [7]

"employee" nor an "applicant for

employment" at Stouder. The provision of

the Civil Rights Act which’ enables

plaintiffs to sue for retaliation provides,

in pertinent part:

(a) It shall be an unlawful

employment practice for an

employer to discriminate against

any of his employees or

op @} 5 2 2S Se ° “2 +

employment...because he has

opposed any practice made an

unlawful employment practice by

this subchapter or because he had

made a charge, testified,

A-18

assisted, or participated in any

manner in an investigation,

proceeding, or hearing under this

subchapter.

42 U.S.C. §2000e-3 (emphasis added). While

it is true that Christopher was not a

direct employee of Stouder, we find that

Stouder's control over Christopher's

ability to practice as a private scrub

nurse sufficiently impacted her employment

opportunities to bring her claims within

the intended scope of §2000e-3.

As the trial court noted, our caselaw

requires that "(t]he term '‘employee' in

Title VII ‘must be read in light of the

mischief to be corrected and the end to be

attained.'" J. App. at 70 (Order denying

motion for new trial, quoting Armbruster v.

oe, veh F.2@ 1332, 1340 (6th cir.

1983)). Further, we have repeatedly said

the "Title VII of the Civil Rights Act

A-19

should not be construed narrowly." Tipler

v. E.I. du Pont de Nemours and Co. 443 F.2d

125, 131 (6th Cir. 1971). In this spirit,

several courts have held that Title VII

does not required a formal employment

relationship between the plaintiff and the

defendant. Rather, a plaintiff is

protected if the defendant is one "who

Significantly affects access of any

individual to employment opportunities."

Doe v. St. Joseph's Hosp., 788 F.2d 411,

422-25 (7th Cir. 1986) (doctor stated a

claim under Title VII when hospital denied

staff privileges even though doctor was not

an employee of the hospital); Gomez v.

Alexian Bros. Hosp., 698 F.2d 1019, 1021

(9th Cir. 1983) (finding a cause of action

under Title [8] VII when "'a defendant

subject to Title VII interferes with an

innivideat*e employment opportunities with

another employer.'" (quoting Lutcher v.

A-20

Musicians Union Local 47 633 F.2d 880, 883

n.3 (9th Cir. 1980)).

The trial court in this case relied on

the D.C. Circuit's opinion in Sibley Mem.

Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir.

1973) to find that Christophef§>- nad

jurisdiction to sue. Sibley Mem. Hosp.

concerned a sex discrimination claim under

Title VII by a private duty nurse against a

hospital. The basis of the plaintiff's

Claim was that the hospital's Nursing

Office would not refer the nurse, who was a

male, to female patients who requested a

private duty nurse.

This action by the hospital was in

contravention of its own policy of

referring patients to the next available

private nurse in its' register. The

defendant nospital moved to dismiss on the

ground that the plaintiff was not in an

employer-employee relationship with the

A-21

hospital and therefore the court did not

have jurisdiction to hear the claim.

However, the district court found that the

plaintiff stated a claim under Title VII

and the D.C. Circuit affirmed.

In its Sibley Mem. Hosp. opinion, the

court began by pointing out that "The

Supreme Court has said that the

Congressional objective in Title VII is

'plaint from the language of the statue,'

and that it is ‘'to achieve equality of

employment opportunities[.]'" Id. at 1340-

41 (emphasis original) (quoting Griggs vs.

Duke Power Co., 401 U.S. 424, 429 (1969)),

The court then reasoned that in certain

circumstances control over access to

employment may reside in organizations such

as union or employment agencies "which have

not a remote but a highly visible nexus

with the creation and continuance of direct

employment relationships between third

A-22

parties." Id. at 1342; see 42 U.S.C.

§2000e-2 (b) and (c). From these premises,

the court reasoned: [9]

To permit a covered employer to

exploit circumstances peculiarly

affording it the capability of

discriminatorily interfering with

an individual's employment

opportunities with another

employer, while it could not do

so with respect to employment in

its own service, would be to

condone continued use of the very

criteria for employment’ that

Congress has prohibited.

Id. at 1341. The court went on to

determine that the hospital, while not the

plaintiff's employer was in the-= same

position to interfere with the plaintiff's

employment opportunities as unions’ or

employment agencies, and therefore,

A~23

"neither the spirit nor, more essentially,

the language of the Act" prohibited the

plaintiff from proceeding against’ the

defendant hospital. Id. at 1342.

The facts of the instant case are

directly analogous to the situation in

Sibley Mem. Hosp. Like the nurse in

Sibley, Christopher cannot’ pursue _ her

employment opportunity of working as a.

private scrub nurse if Stouder does not

grant her limited privileges. If Stouder

denies those privileges to Christopher on

impermissible grounds, it is, in effect,

denying her employment on impermissible

grounds, despite the fact that it does not

pay her salary.

Stouder argues that Sibley, Gomez, and

Doe are distinguishable because all of

those cases were actions brought under

§2000e-2, which allows a broader range of

persons to sue than §2000e-2 provides in

A-24

relevant part:

(a) It shall be an unlawful

employnent practice for an

employer--

(1) to fail or refuse to

hire...any individual, or

otherwise discriminate against

any individual with respect to

his compensation, terms,

condition, or privileges of

employment([. ]

42 U.S.C. §2000e-2 (emphasis added). By

comparison, [10] §2000e-3 refers to the

protected class as “employees or applicants

for employment." See 42 U.S.C. §2000e-3

(quoted supra.) Stouder argues that the

difference in the language of the two

provisions indicates a Congressional intent

to provide less coverage for retaliation

than for other forms of discrimination

under the Act.

While Stouder's position has_ some

logical appeal at first glance, we find it

is ultimately not persuasive. First, while

the courts in Doe, Gomez, and Sibley Mem.

Hosp. do rely, to some extend, on the "any

individual" language of §2000e-2, this

language is not the sole basis of these

holdings. #or example, in Sibley Mem.

Hosp., the court makes much of the fact

that the general remedial section of Title

VII does not refer only to any "employee"

but provides recourse to "persons

aggrieved." See 42 U.S.C. §2000e-2, this

language is not the sole basis of these

holdings. For example, in Sibley Men.

Hosp., the court makes much of the fact

that the general remedial section of Title

VII does not refer only to any “employee"

but provides recourse to "persons

aggrieved." See 42 U.S.C. §2000e-5(b); 488

F.2d at 1341-42; see also Gomez, 698 F.2d

A-26

at 1021. The court states: "The fact that

the Act purports to provide remedies for a

class broader than direct employees is a

strong indication that the proscriptions

contemplated by [§2000e-2] reach beyond the

immediate employment relationship." Sibley

Mem. Hosp., 488 F.2d at 1341. it 38

important to note that the remedial section

to which the court refers, §2000e-5,

applied equally to plaintiffs suing under

§2000e-2 and §2000e-3. Thus, the courts in

reaching their conclusions in Sibley and

Gomez, were not relying on the "any

individual" language of §2000e-2, but

rather, were discerning the meaning of

"employee" in the Title VII context by

looking to the intent and scope of Title

VII as whole.

In addition, as discussed _ above,

Sibley Mem. Hosp. extensively discusses the

fact that §2000e-2 applies to unions and

A-27

employment agencies whose actions might

interfere with a person's access’ to

employment opportunity with other employers

though these organizations might not be

serving as an employer. Significantly,

§2000e-3 also explicitly applies to unions

and pee eve hy agencies. Thus, if the

analogy between the hospital's interference

with Christopher's employment [11] as a

private scrub nurse in the instant case,

and the interference by a union or

employment agency in the employment

opportunities of its members or clients

holds, then a plaintiff alleging

interference by a defendant in the

plaintiff's employment with third parties

ipso facto states a claim under either

§2000e-2 or §2000e-3. See Doe, 788 F.2d at

423 ("Congress presumably did not intend to

allow the hospital to exploit its power to

grant or deny staff privileges in order to

A-28

discriminatorily interfere with

[plaintiff's] employment opportunities." ) ;

see also Pao v. Holy Redeemer Hosp., 547 F.

Supp. 484, 494-95 (E.D. Penn. 1982)

(following Sibley Mem. Hosp. to find that

hospital's denial of staff privileges to a

doctor was sufficient to state a claim

under Title VII).

In the instant case, there was ample

evidence presented at trial to demonstrate

that Stouder was an organization which was

capable of and in fact and did affect

Christopher's ability to engage in her

employment as a scrub nurse. As the trial

court put it, by discriminating against

Plaintiff and refusing to grant her

privileges to work in its-7 facility,

Defendant realistically prevents Plaintiff

from performing the job for which she was

hired by the physicians. This clearly

interferes with Plaintiff's employment

A-29

relationship with the hiring physicians and

with her opportunity to perform her work.

J. App. at 71 (Order denying motion for new

trial). As the goal of Title VII is to

preserve employment opportunity, we can see

no reasons to conclude that Congress

intended Title VII to prohibit

discrimination by a non-employer defendant

on the basis of race of sex, and to allow

the same non-employer defendant to

discriminate against a person who engages

in protected activity under Title VII. In

both instances the acts of the non-employer

defendant have the effect of denying the

plaintiff employment based upon

impermissible grounds unaer the Act. Thus,

we find that the trial court had

Jurisdiction to hear Christopher's §2000e-3

claim based upon the [12 principles and

reasoning articulated in Sibley Mem. Hosp.

and its progeny.

Stouder also asserts that the trial

court did not have jurisdiction to hear

this case because Title VII does not apply

to "independent contractors." In this

argument, Stouder asserts that

Christopher's relation to the hospital is

analogous to that of an _ independent

contractor. See Fails v. Sporting News

Pub. Co., 834 F.2d 611, 613 (6th Cir. 1987)

(while the term "employee" is to. be

construed broadly in Title VII, it is not

meant to reach independent contractors).

In the instant case, the trial court

specifically found that "Plaintiff would

not be a hospital employee nor would she be

an independent contractor with respect to

the hospital." J. App. at 73. The court's

finding is supported by the record. As a

private scrub nurse, Christopher would not

be paid by the hospital nor would ‘one

received benefits or insurance from the

A~3j3

hospital. Her direct employment

relationship would be with the doctor who

hired her to assist in surgery for each

specific operation. While Stouder would

provide Christopher with equipment and

facilities to perform her work, Stouder

would not have any control over her work,

except to the extent that it could impose

its uniform safety standards as it does on

all persons who have staff privileges in

the hospital. Finally, at not time would

Christopher be required to perform services

for the hospital itself. On these facts,

no contractual relationship would exist

between Stouder and Christopher either as

an employee or as an independent

A-32

contractor. For these reasons, we find

that Christopher does not fall within the

independent contractor exception to Title

Viz. {13]

In sum, we find that the trial court

properly had jurisdiction over

Christopher's claims.

iii.

Stouder next argues that the trial

court did not apply the correct legal

standards in concluding that Christopher

had made out a case of retaliation under

Title VII. Specifically, Stouder contends

that the trial court failed to find that

Christopher was "otherwise qualified" for

the position she was allegedly denied based

upon retaliation, and that Christopher

failed to show that the Stouder hired a

less qualified scrub nurse after her

A-33

application was denied.

As the trial court correctly noted,

the elements of a prima facie case of

retaliation are as follows:

(1) that plaintiff engaged in an

activity protected by Title VII;

(2) that the exercise of his [or

her] civil rights was known by

the defendant; (3) that,

thereafter, the defendant took an

employment action adverse to the

plaintiff; and (4) that there was

a causal connection between the

protected activity and the

adverse employment action.

Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.

1987). Based upon this’ framework, the

trial court found that Christopher had met

her prima facie burden. Stouder argues

that the triai court erred in applying this

framework along, without making the other

A-34

findings required for a prima facie case of

discrimination under Title VII under

McDonnell Douglas v. Green, 411 U.S. 792,

802 (1972). Wrenn made clear that "[(p]roof

of a retaliation claim under Title VII is

governed by McDonnell Douglas[.]" Wrenn,

808 F.2d at 500. Key to a finding of

discrimination under the McDonnell Douglas

framework is proof that the plaintiff

"applied and was qualified for a job for

which the employer was seeking applicants,"

and "that, despite his qualifications, he

was rejected". 411 U.S. at 802. Stouder

argues that [14 Christopher's retaliation

claim is fatally flawed because she failed

to meet her burden of demonstratiny that

she was qualified to receive limited

privileges as a private scrub nurse. In

addition, Stouder asserts that the trial

court, in finding that Christopher had made

out her claim of retaliation, never made an

A-35

explicit finding that Christopher’ was

qualified for the position.

After weighing the testimony 9 and

evidence before it, the trial court

concluded that "Mrs. Christopher has

persuaded this Court that she would have

received limited privileges’ but for

retaliation against her on the basis of her

prior claim against Wright State." J. App.

at 30-31. Christopher argues that the

trial court's finding that she would have

received limited privileges but for

Stouder's retaliation is an _ implicit

finding that she was qualified to perform

the job of a scrub nurse. However, as

Stouder points out, the court seemed to

have serious doubts about Christopher's

qualifications. For example, at the end of

its memorandum opinion the court stated

Ms. Christopher seeks

reinstatement of her limited

A~36

privileges and to that she is

entitled. Stouder is, however,

entitled to ensure that she is

technically competent as a scrub

nurse, since there were some

valid concerns expressed about

that at the time she was at the

hospital and it has now been two

and one-half years since she has

acted in that capacity.

Accordingly, counsel for’ the

parties are directed to consult

with a view to devising a neutral

objective measurement of Ms.

Christopher's present competence

to act as a scrub nurse.

J. App. at 33-24 (emphasis added). In

addition, the court prescribed a six-week

trial procedure to determine Christopher's

qualifications for the scrub nurse

position. This procedure required medical

A-37

evaluators to observe Christopher and file

reports. As to the reports, the court

stated that, "[e]ach such report shall

include the doctor's opinion as to whether

Mrs. Christopher is qualified for

employment as a gynecological and

obstetrical private [15] duty scrub nurse."

Id. at 46.

Christopher argues that the court was

primarily concerned with her_ present

qualifications as it had been several years

Since she acted as a nurse due to this

litigation. However, the court

specifically noted that there had been some

valid concerns about her qualifications at

the time she was at the hospital. Id. at

33-34. Further there is little or no

evidence in the record that demonstrates

Christopher's qualifications to act as a

private scrub nurse, and this evidence came

from her husband and her husband's partner.

A-38

As Stouder correctly points out, "Congress

did not intend by “‘itle VII...to guarantee

a job to every person regardless of

qualifications." Griggs v. Duke Power Co.,

401 U.S. 424, 430 (1971). Further,

"qualification of the complainant is to

pivotal component of the McDonnell Douglas

prima facie case." Williams v. Boorstin,

663 F.2d 109, 118 (D.C. Cir. 1980)

(emphasis omitted), cert. denied, 451 U.S.

985 (1981). Thus, we hold that is was

error for the trial court not to make an

explicit finding that Christopher’ was

qualified to act as a scrub nurse before

concluding that she was the victim of

discrimination. We therefore remand for

the district court to determine whether

Christopher was qualified to act as a

private duty scrub nurse at the time the

alleged discrimination took place.

In addition to its assertions

A-39

regarding the trial court's failure to find

that Christopher was qualified, Stouder

asserts that the district court erred in

failing to require Christopher to show that

other less qualified applicants were

granted privileges at Stouder after she was

denied such. privileges. As Stouder

correctly points out, the Supreme Court in

McDonnell Douglas suggested that plaintiffs

seeking to create an interference of

discriminatory failure to hire must show,

in addition to membership to a protected

class and qualifications, that the

defendant continued to accept applicants

for the position from equally qualified

person. 411 U.S. at 802. However,

Stouder's premise that failure to make such

a finding is [16] reversible error is based

upon a misapprehension of the law.

It is well settled that if a plaintiff

presents direct evidence of discrimination,

A-40

she need not proceed under the McDonnell

Douglas formula. Blalock v. Metal Trades,

Inc., 775 F.2d 703, 707 (6th Cir. 1985).

As the court explained,

Direct evidence and the McDonnell

Douglas formula are simply

different evidentiary paths by

which to resolve the ultimate

issue of defendant's

discriminatory intent. "Where

the evidence for a prima facie

case consist...of direct

testimony that defendants acted

with a discriminatory

motivation, if the trier of fact

believes the prima facie evidence

the ultimate issue of

discrimination is’ proved; not

inference of discrimination is

required."

Id. (citations omitted). In the instant

A-41

case, the trial court found that Stouder

raised its prior qualifications standards

and denied Christopher limited privileges

in retaliation for her prior sex

discrimination suit. The court based its

finding upon Christopher's own testimony of

discussions she had had with Dr. Hess and

Grubb, and the fact that reference to

Christopher's prior suit appeared in Dr.

Hess's memo to the Executive Committee.

Thus, there was direct evidence upon which

the court could find that Stouder acted in

a discriminatory manner with regard to

Christopher. In other words, there was no

need for Christopher to produce evidence of

retaliatory motive under the McDonnell

Douglas framework because the court did not

have to infer from Stouder's actions with

other applicants that the hospital

discriminated in this case.

Stouder also argues that since

A-42

Christopher's privileges were denied, the

hospital has not granted privileges to any

private scrub nurse who did not have at

least one year of experience. Thus,

Stouder argues, it has not [17]

discriminated against Christopher. Rather,

the hospital has simply applied its neutral

qualification standards across the board to

all applicants. However, even if we accept

Stouder's claims that it has consistently

applied the one year experience standard to

applicants after Christopher, this still

does not refute the evidence that the

hospital raised its prior standards in

Christopher's case in order to deny her

privileges for impermissible reasons of

retaliation. Therefore we find that the

trial court's determination that Stouder

acted with a retaliatory motive is not

clearly erroneous.

IV.

Stouder's last contention is that the

trial court mistakenly found that Stouder's

new standards for the hiring of private

scrub nurses, written by Ms. Nagle, were

retaliatory because Ms. Nagle testified

that she did not know that Christopher had

filed a prior discrimination action. As

Christopher points out, this alleged error

is based upon a misapprehension of what the

trial court found. In fact, the court did

not determine that the writing of the

standards was retaliatory, although it

hinted that they may have been written to

include a one year experience requirement

which would exclude Christopher. Rather,

the discriminatory act was the application

of these new higher standards to

Christopher by the Executive Committee and

other decisionmakers. It was this

application of the standards which

A-44

"differed substantially from the bases upon

which Stouder had in the past hired scrub

nurses into its own employment", which

evidenced Stouder's discriminatory purpose.

J. App. at 75. Therefore we find that the

court's finding that the standards used to

deny Christopher's application were

employed for a retaliatory purpose was not

clearly erroneous. [18]

On cross-appeal, Christopher

challenges the trial court's failure to

grant her back pay damages on her

retaliation claim. As Christopher points

out, this court has held that:

The finding of discrimination by

the district court, in addition

to the nature of the relief

(compensatory as opposed to

punitive), and the clear intent

of Congress that the grant of

A-45

authority under Title VII should

be broadly read and applied

mandate an award of back pay

unless exceptional circumstances

are present.

Head v. Timken Roller Bearing Co., 486 F.

2a 870, 876 (6th Cir. 1973). Moreover,

this court has held that mere difficulty in

calculating the amount of the pay award

does not constitute "exceptional

circumstances" such as would justify the

denial of back pay. RasSimas v. Mic. Dep't

of Mental Health, 714 F. 2d 614, 626 (6th

Cir. 1983), cert. denied, 466 U.S. 950

(1984) However, an "{a]Jward of back pay is

not an automatic or mandatory remedy but is

within the discretion of the ([Trial}

Court..* Kennerly v. ARP, Inc., 447 F.

Supp. 1090, 1101 (E.D. Tenn. 1987) (citing

Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975)). Christopher argues that the trial

A-46

court had no recognizable justification for

denying back pay.

The trial court addressed the issue of

back pay twice in its various post trial

orders. In its original memorandum

opinion, the court found that Christopher

was not entitled to back pay for two

alternative reasons. First, the court

asserted that it was not entitled to

granted compensatory damages under Title

VII and that since Stouder was not

Christopher's employer and would not have

paid her salary, it could not be charged

with back pay damages. Second, the court

noted that "the proof of loss with respect

to that potential employer was quite

exetcny." J. App. at 33.

Subsequently, the court amended its

prior findings of [19] fact and conclusions

of law on the back pay issue. In its

amended findings, it first noted that it

A-47

was in error as to its inability to grant a

back pay award against Stouder. However,

the court explained and affirmed its

findings as to the inconclusive nature of

the proof on back pay. The court stated:

[T]he testimony was very vague

about what the arrangement

[between Christopher and her

husband and his’ partner] was

going to be. The Court's notes

reflect no testimony from Ms.

Christopher about a pay

arrangement. Dr. Dysert

testified that [the partnership

was] still trying to save for a

laser [for surgery] and probably

would have started Ms.

Christopher out at $1.00. Dr.

Christopher admitted there was no

agreement about what to do, but

thought her salary probably would

A-48

be $12,000 per year when she sent

on the doctor's payroll.

x *& &

The extreme ambiguity of the

intended arrangement as outlined

above shows Plaintiff did not

prove what she actually would

have received. Nor was there any

proof of what other private duty

nurses are paid so as to permit

finding an average. Plaintiff

did not even suggest in her

Proposed Findings of Fact and

Conclusions of Law an amount of

lost wages from the intended

arrangement. While back pay ina

Title VII case need not be proven

with the exactitude of lost

profits in a breach of contract

case, neither can such an award

be appropriately founded on mere

A-49

speculation.

J. App. at 37-38. Based upon these

findings, we find that the court did not

abuse its discretion in denying back pay in

this case. Therefore, we affirm the denial

of back pay.

VI.

For the foregoing reasons, we REMAND

for the trial [20] court to make specific

findings as to Christopher's qualifications

to perform as a private scrub nurse at the

time she was denied privileges. We AFFIRM

the findings of the trial court in all

other respects. [21]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANASTASIA S. CHRISTOPHER,

Plaintiff,: Civil

Action No. C-3-87-249

-vs- Magistrate Merz

STOUDER MEMORIAL HOSPITAL,

Defendants. :

ORDER DENYING MOTION FOR NEW TRIAL AND

SETTING PROCEDURES CONCERNING SUPERSEDEAS

BOND

This case is before the Court on

Defendant's Motion for a New Trial. (Doc.

55).

| This action was tried to the United

States Magistrate in July, 1988, sitting

without a jury and with the consent of the

parties pursuant to 28 U.S.C. §636(c). On

July 5, 1988, the Court entered its

Memorandum Opinion and Decision embodying

findings of fact and conclusions of law

under Fed. R. Civ. P. 52. (Dec. 22). The

Court found, inter alia, that Plaintiff had

been denied limited staff privileges as a

private duty scrub nurse at Defendant's

facility in retaliation for her prior

protected activity under Title VII and also

found that she was entitled to

reinstatement of those limited privileges.

Defendant filed the present motion

pursuant to Fed. R. Civ. P. 59 and moved

the Court for a new trial on the basis that

the Court lacks jurisdiction in this

matter. Specifically, Defendant argues

that the position to which Plaintiff

aspired - - that of a private duty scrub

nurse - - is clearly that of an independent

contractor and therefore the protections of

Title VII are not available.

In her Memorandum in Opposition,

Plaintiff argues that Defendant had

consistently maintained that Plaintiff was

in fact, Defendant's employee (a "pool

A-52

nurse") throughout the relevant’ time

period. Plaintiff also argues that a

formal employer - employee relationship is

not needed for Title VII protections to be

available but rather, a Plaintiff is

protected against discrimination if the

Defendant is one who significantly affects

access of any individual to employment

opportunities. Finally, Plaintiff argues

that even if she was not an employee at the

time of the retaliatory acts she was at

least a former employee and Title VII

protections are available when a claim of

retaliation is brought by a former

employee.

In reply, Defendant cites to numerous

cases when courts have held that Title VII

protections were not available because no

employee status was established. Defendant

essentially repeats its argument’ that

Plaintiff was an independent contractor and

A-S33

therefore Title VII protections are not

available to her.

Title VII makes it an_- unlawful

employment practice for an employer to

discriminate against any of its employees

or applicants for employment because she

has opposed any practice made unlawful by

Title VII, or because she has made a Title

VII charge. See, 42 U.S.C. §2000e-3.

Title VII defines "employee" in broad

language: "the term ‘employee' means an

individual employed by an employer... ."

42 U.S.C. §2000e(f). The legislative

history supports the view that Congress

intended to cover the full range of workers

who may be subject to the harms the statute

was designed to prevent, unless_- such

workers’ are excluded by a specific

statutory exception. Armbruster v. Quinn,

711. F.2@ 1332, 1339 (6th Cir. 1983). The

term '‘employee' in Title VII "must be read

A-54

in light of the mischief to be corrected

and the end to be attained." Id. at 1340

(citation omitted). The mischief to be

corrected is that discrimination in

employment opportunity has been -= made

unlawful by Title VII's violation

provisions; the end, to rid from the world

of work of the evil of discrimination

because of an individual's race, color,

religion, sex or national origin. Id.

Since the statute has been universally held

to be broadly remedial in its purpose, such

remedial effect can be given only upon a

broad interpretation of the term

'employee'. Id. at 1341. One must examine

the economic realities underlying’ the

relationship between the parties in an

effort to determine whether an individual

is likely to be susceptible to the

discriminatory practices which the Act was

designed to eliminate. Id. at 1340. In

A-55

view of the broad terms of Title VII,

reasonably precise exceptions, and

legislative history all directed towards a

test of coverage to all those who are ina

position to suffer the harm the statute is

designed to prevent, unless specifically

excluded, where there is a doubt or

ambiguity, it should be resolved in favor

of coverage. Id. at 1341.

Although the Sixth Circuit has

rejected a narrow construction of the term

‘employee' under Title VII, is has

nevertheless adhered to a standard that

would exciude from the protection of Title

VII a person who cannot be considered an

employee but is instead ciearly an

independent contractor. Falls v. The

Sporting News, 834 F. 2d 611i (6th Cir.

1987) (citations omitted).

There is no question that if Piaintiff

was Defendant's employee at the time of the

A-56

discriminatory acts then Title VII

protections are available to Plaintiff.

However, for the reasons stated more fully

below, this Court does not need to make a

determination of whether Plaintiff was

Defendant's employee at the time of the

unlawful acts.

This Court finds that as a private

scrub nurse, Plaintiff would not be an

independent contractor with respect to

Defendant. In the capacity of private

scrub nurse, Plaintiff would perform no

services for Defendant nor would she be

paid by defendant for any services.

Plaintiff would perform services for the

physicians by whom she would be employed.

Accordingly, the Falls, ‘independent

contractor exception' is not applicable in

this case.

The facts of this case are strikingly

Similar to those in Sibley Mémorial

A-57

Hospital v. Wilson, 488 F. 2d 1338 (D.C.

Cir. 1973). In Sibley, the plaintiff was a

male private duty nurse who worked in a

private hospital and who obtained

employment with patients by referral

through a nurses' registry. When a patient

needed a private duty nurse, the hospital's

nursing office would communicate’ the

request to the registry. Neither the

hospital nor the registry was permitted to

discriminate on the basis of sex. The

registry would match the patient with an

available nurse, and the nurse would report

to the patient. If the nurse was

unacceptable to the patient for any reason,

the patient would still be required to pay

the nurse one day's wages. The plaintiff

complained that supervisory nurses at the

defendant hospital has themselves rejected

him and prevented him from reporting to the

patient when the patient was a female.

A-58

The court on Sibley held that the

plaintiff had a Title VII claim, despite

the absence of an employment relationship

between the nurse and the hospital. The

court first noted that in Title VII

Congress had intended to "achieve equality

of employment opportunities." Sibley, 488

F. 2d at 1340-41. (emphasis in

Original) (citations omitted).

Control over access to the job

market may reside, depending upon

the circumstances of the case, in

a labor Organization, an

employment agency, or an employer

as defined in Title VII; and it

would appear that Congress had

determined to prohibit each of

these from asserting any power it

may have to foreclose, on

invidious grounds, access by any

individual to employment

A-59

opportunities otherwise availabie

to him. To permit a covered

employer to exploit circumstances

peculiarly affording it the

capability of discriminatorily

interfering with an individual's

employment opportunities with

another employer, while it could

not do so with respect’ to

employment in its own service,

would be to condone the continued

use of the very criteria for

employment that Congress’ has

prohibited.

In Sibley, the private nurse was not

the hospital's employee nor was he an

independent contractor with respect to the

nospital. Although the hospital provided

equipment, supplies, a place for him to

perform his work and presumably imposed

A-60

standards, his employment relationship was

with the patients and not with the

hospital. However, the hospital was in the

position to interfere with his employment

relationships and opportunities and the

court found that was sufficient for Title

VII protections to attach.

In the present case, as a private

scrub nurse, Plaintiff would not be a

hospital employee nor would she be an

independent contractor with respect to the

hospital. As in Sibley, although,

Defendant would provide Plaintiff with

equipment, supplies, instruments, a place

for her to perform her work, and impose

standards, Plaintiff's employment

relationship would be with the physicians

for whom she works. However, and again as

in Sibley, Defendant was in a position to

interfere with Plaintiff's employment

relationship and opportunities. By

A-61

discriminating against Plaintiff and

refusing to grant privileges to work in its

facility, Defendant realistically prevents

Plaintiff from performing the job for which

she was hired by the physicians. ,This

clearly interferes with Plaintiff's

employment relationship with the hiring

physicians and with her opportunity to

perform her work. Therefore, Title VII

projections are available to Plaintiff and

this Court has jurisdiction of her Title

VII claims.

For all of the foregoing reasons, this

Court finds that Title VII protections are

available to Plaintiff and therefore this

Court has jurisdiction over Plaintiff's

Title VII claims. Accordingly, Defendant's

Motion for a New Trial is -not well taken

and is overruled.

It is therefore ORDERED that

Defendant's Motion for a New Trial is

A-62

overruled.

This case is also before the Court

upon Defendant's Motion to Stay Execution

of Judgment pending decision on the motion

for a new trial (Doc. #56) and Defendant's

Memorandum Requesting Clarification (Doc.

#61).

At the time the motion stay execution

was filed, the Court held a conference

among counsel on February 20, 1990, who

agreed that they would confer and agree on

an amount liquidated damages which would be

suffered by Plaintiff for each day or other

work period she missed pending decision on

the motion for new trial and presumable

pending appeal. On March 27, 1990,

Plaintiff's counsel reported to the Courts

clerk that the parties had been unable to

agree on an amount of liquidated damages,

but continued to agree in principle on that

approach.

Defendant has now filed a Memorandum

Requested Clarification (Doc. #61) which in

its penultimate paragraph asks this Court

to amend the judgment and enter judgment

for Defendant on the grounds that Plaintiff

is not qualified as a private duty scrub

nurse.

The memorandum, which is in reality a

motion to amend the judgment, is untimely.

Under Fed. R. Civ. P. 59(e), such a motion

must be filed not later than ten days after

the entry of judgment,- which occurred

February 5, 1990.

Moreover, the reasoning of the

Memorandum is’ flawed. IT repeats’ the

observation that Ms. Christopher does not

meet Stouder's present standards for

private duty scrub nurse nursing, but the

Court previously found that thcse standards

were developed as part of Stouder's

discrimination against Stacy Christopher:

A-64

they were written in a way which made her

ineligible, but differed substantially from

the bases upon which stouder had in the

past hired scrub nurses in its- own

employment.

Defendant argues that Ms. Christopher

does not meet the standards of other area

hospitals, and that is apparently true.

However, those hospitals did not develop

their standards as part of a discriminatory

pattern and they are not defendants in this

action.

Defendant also argues that Ms.

Christopher has not been in an operating

room for over four years. However, it is

Stouder Hospital which has adamantly fought

Ms. Christopher's return to the operating

room since this litigation was filed.

When the Court made its initial

decision on liability, it attempted to

accomodate Stouder's concerns about Ms.

A-65

Christopher's technical competence by

getting that competence certified by

disinterested outside experts. That

process turned out not to be feasible.

During that entire process, Stouder has

refused to compromise at all.

The Court reiterates its prior Order:

Defendant shali grant the Plaintiff limited

private duty scrub nurse privileges in

accordance with her application of March

26, 1986. Without modifying that judgment,

the questions presented by Defendant for

interpretation are answered as follows:

# Stouder may require Plaintiff to

fill out an updated application to the

extent that such application is_ for

information gather. The application to be

granted is that of March 26, 1986.

a Stouder may verify Mr.

Christopher licensure.

: - Stouder may not request up-to-

date references.

4. Stouder may inquire about

continuing education, but may not refuse

privileges on the basis of any answer.

Once privileges are granted, Ms.

Christopher may be required to fulfill any

continuing education requirement imposed by

Stouder on private duty scrub nurses

equally.

5. Stouder may require proof on

insurance to the same extent it does with

other private duty scrub nurses.

6. Ms. Christopher is not required

to meet current criteria.

Although the Court urges the parties

to negotiate an end to this controversy,

the Court assumes that Defendant intends to

appeal. If a notice of appeal is filed,

the Court wishes to indicate its

willingness to stay execution pending

A-67

appeal upon the posting of a supersedeas

bond in an amount double the reasonable

expected annual income of Ms. Christopher

is she were permitted to work. Since the

Court understands the parties have been

unable to reach an agreement on what that

amount would be, on request of either party

the amount supersedeas bond will be set for

prompt hearing.

UNITED STATES MAGISTRATE

Filed March 30, 1990

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANASTASIA S. CHRISTOPHER,

Plaintiff,: Civil

Action No. C-3-87-249

-vs- Magistrate Merz

STOUDER MEMORIAL HOSPITAL,

Defendant, :

JOURNAL ENTRY MODIFYING DECISION ON REMEDY

This action was tried to the United

States Magistrate in July, 1988, sitting

without a jury and with the consent of the

parties under 28 U.S.C. §636(c). On July

25, 1988, the Court entered its Memorandum

Opinion and Decision embodying findings of

fact and conclusions of law under Fed. R.

crv. PB. S28.

The Court determined that Plaintiff

had been denied limited staff privileges as

a private duty scrub nurse at Defendant's

facility in retaliation for her prior

protected activity under Title VII and

A-69

found that she was entitled to

reinstatement of her limited privileges.

It directed the parties to negotiate a

neutral objective measurement of her

technical competence as a scrub nurse (Doc.

#22).

The parties were unable to agree and

the Court held a hearing remedy on October

31, 1988. On March 6, 1989, the Court

adopted Plaintiff's proposal that she work

under the supervision of a neutral

obstetrician/Gynecologist for six weeks and

obtain his or her report on her competence

(Doc. #47).

Plaintiff now reports to the (Doc.

#50) that despite diligent effort she has

been unable to carry out this plan. From

her report, she is in a "Catch 22"

situation: she cannot obtain limited

privileges at Good Samaritan Hospital so as

to work with the doctors the Court has

A-70

approved, probably because of her prior

legal difficulties, although this has not

yet been proven.

What has been proven to the Court's

satisfaction is that its earlier decision

on remedy is’ flawed. The Court has

determined that Plaintiff was unlawfully

deprived of limited privileges at Stouder

and is entitled to their restoration (Doc.

#22). Plaintiff's good faith efforts and

Defendant's prior inability to suggest a

workable alternative convince the Court

that it must now order restoration of the

privileges without further processing of

the Plaintiff.

It is accordingly | ordered that

Defendant grant Plaintiff limited staff

privileges as a private duty scrub nurse in

accordance with her application on March

25, 1986. Such privileges shall permit her

to work as a private duty scrub nurse only

a7 i

for those doctors who desire her services

in that capacity and who’ themselves

compensate her directed for her services

and maintain adequate malpractice insurance

covering her work. In other words, it is

not the Court's intention to compel Stouder

to enter into an employment relationship

with Ms. Christopher. It is the Court's

understanding from the hearing on remedy

that this is exactly the way in which other

private duty scrub nurses are treated at

Stouder.

UNITED STATES MAGISTRATE

Filed February 5, 1990

ASescnn Cale’

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANASTASIA S. CHRISTOPHER,

Plaintiff, : Civil Action No. C-3-87-249

Magistrate Merz

STOUDER MEMORIAL HOSPITAL,

Defendant. :

MEMORANDUM OPINION AND DECISION

This is an action for employment

discrimination under Title VII of the Civil

Rights Act of 1964 with a pendent state

breach of contract claim. After completion

of discovery, the parties consented =

magistrate trial jurisdiction under 28

U.S.C. §636(c) and the case was tried to

the bench on July 11, 12, and 13, 1988.

The following opinion embodies the Court's

findings of fact and conclusions of law

required by Fed. R. Civ. P. 52.

A-73

Plaintiff Anastasia Christopher is a

female citizen of the United States. She

was awarded a bachelor of science degree in

nursing by Ohio State University in 1974

and a master of science in nursing degree

by the same institution in 1977, with

particular training in maternal and child

health. She is married to Charles

Christopher, N.D., a practicing

obstetrician and gynecologist.

From 1978 until 1983 or 1984, Ms.

Christopher was a faculty member at the

Wright State University School of Nursing.

On or about June 16, 1983, she filed a sex

discrimination claim against Wright State

arising out of circumstances not explained

during the trial of this case. That charge

eventually grew into a Title VII lawsuit in

this Court, Civil Action No. C-3-84-391,

which was resolved prior to trial on a

basis not revealed during testimony in this

case. A-74

See er |

During the same time period, Dr.

Christopher was experiencing what he

described as "political" problems with

Miami Valley Hospital where he was head of

obstetrics. He left Miami Valley and sued

it, against on a basis and with results not

revealed here. However, he and “Ms.

Christopher decided to move to Troy, Ohio,

where he went into partnership with Dr.

Gerald nw

Defendant Stouder Memorial Hospital is

a corporation organized under the laws of

the State of Ohio and an "employer" within

the meaning of 42 U.S.C. §2000-e(b).

Dr. Dysert was already performing

deliveries and gynecological surgery at

Stouder when Dr. Christopher joined him.

Both doctors concluded that modifications

of obstetrical practice were needed at

Stouder, including modification of the

labor room to permit doing emergency

A-75

cesarean section deliveries there rather

than transferring patients to the operating

room with attendant delays.

During the Spring of 1985, Ms.

Christopher was hospitalized for surgery at

Stouder. During her recovery she discussed

the possibility of her employment at

Stouder with Ms. Sally Swisshelm, Director

of Nursing. She was anxious to get back

into nursing and had already had some

discussions with her husband and his

partner about being their private duty

"scrub" nurse for their surgery.

After some additional discussions with

Ms. Swisshelm, Ms. Christopher was employed

at Stouder on June 10, 1985. Ms.

Christopher testified she was hired as a

"Clinical nurse specialist" which is a job

Classification for which her training

qualified her. However, no such position

existed at Stouder and Ms. Swisshelm did

A-76

not have budget authority to hire someone

full-time to perform such functions.

Instead, Ms. Christopher was Hired as a

"pool" nurse in obstetrics, which meant

that she was available to be called in as

needed to assist in labor, delivery, and

the nursery. In addition, Ms. Swisshelm

wanted her to evaluate the performance of

the obstetrical nurses. Eventually she

would work into more formal training of

those nurses, helping them to upgrade their

skills.

Ms. Christopher's pay as a pool nurse

was to be $8.75 per hour. She recalls

discussing an annual salary, to be

negotiated later. of between $18,000 and

$20,000 based on the market for persons

with her qualifications. No agreement on

such a salary was ever reached and she was

paid at $8.75 per hour throughout her

employment at Stouder.

A-77

Whatever Ms. Christopher's

qualifications by education, it was or

should have been clear to all parties that

her employment to train the obstetrical

nurses would create tensions. She was a

newcomer, whereas most of the nurses in the

department had been there for some time,

the head nurse, Pat Druley, for

approximately twenty years. Most

importantly, she was the spouse of a doctor

who, with his partner, did most of the

deliveries in the hospital. These facts

were bound to create tension over role and

status.

Pursuing the other part of her plan,

Ms. Christopher applied in July, 1985, for

limited privileges to act as a private duty

scrub nurse. The procedure for deciding on

such privileges was that the application

would remain with the medical staff

secretary until complete and then be passed

A-78

Nash wo tas Cares Tae

upon by the Executive Committee of the

Medical Staff, the full Medical Staff, and

the Board of Trustees of the hospital in

turn. Prior to the permanent grant of

privileges, the hospital's chief executive

was empowered to grant temporary privileges

for a period of ninety days. The Executive

Committee approved this request on August

6, 1985 (Pl. Ex. 3) and John Grubb,

President of Stouder, granted the temporary

privileges on October 23, 1985 (Pl. Ex. 4).

Ms. Christopher began her evaluation

promptly and in early July, within a month

of her hiring, presented a "Systems

Anaiysis of Obstetrical Nursing" (Jt. Ex.

III) to Ms. Swisshelm; the latter was

surprised by the formality of the document,

having expected more informal feedback.

Illustrative of the tensions which were

already building, the "Systems Analysis" is

50% devoted to a very strong critique of

A-79

Mrs. Druley, the head obstetric nurse. Ms.

Christopher's analysis focuses on both Mrs.

Druley's management style and on Ms.

Christopher's opinion of the psychological

reasons for the problems. At the same time

Ms. Christopher prepared Jt. Ex. 4 on

problems in the nursery. J%. Ex. V

reflects the tensions in obstetrics as of

September 25, 1985. On October 9 and 10,

some of Ms. Christopher's job functions

were formalized by memorandum, apparently

again in an attempt to gain acceptance for

her role (Jt. Exs. VI, VII).

One of Ms. Christopher's tasks was to

prepare the obstetrical nurses to assist as

scrub nurses when cesarean sections began

to be done in Labor and 0ODelivery.

Apparently everyone agreed she needed

training in that area herself, since she

had had very little prior experience; and

she began to train in the Stouder operating

A-80

room in July and August, 1985. The plan

was that she would pass the training on to

the nurses in Obstetrics, rather than have

them sent to Miami Valley Hospital in

Dayton for scrub training, as Mrs.

Swisshelm had earlier planned. There was

obviously some confusion about why she was

scrubbing in the Operating Room; Mrs.

Maxine Nagle, the operating room

Supervisor, was under the impression that

she was a trained scrub nurse.

After her temporary privileges were

granted on October re 1985, Ms.

Christopher began to act as private duty

scrub nurse for her husband and his

partner. A scrub nurse's duties are

principally to prepare instruments’ for

surgery and to hand them to the surgeon

during the operation, cleaning up

afterwards. As of 1985 there were only two

nurses acting in this capacity; according

A-81

to Mrs. Nagle there had only been one prior

experience with a private duty scrub nurse

in her thirty years in surgery. The usual

practice would be to have this function

fulfilled by a nurse employed by the

hospital and assigned the task.

Private duty scrub nurses are paid by

the doctors for whom they work. Ms.

Christopher, however, was not paid by Drs.

Dysert and Christopher. Instead, when she

was acting as their scrub nurse, she closed

in on the hospital time clock (See Def. Ex.

M) and was paid by Stouder. - This was

because Drs. Dysert and Christopher wanted

to save money for a laser for gynecological

surgery and therefore wanted Ms.

Christopher carried on the hospital's

malpractice insurance, instead of paying

for it themselves.

By January, 1986, Mrs. Swisshelm had

concluded that the obstetrical nurses were

A-82

not acquiring the required new skills fast

enough. She decided to hire an obstetrics

supervisor who would perform the training

tasks assigned to Ms. Christopher and the

supervisory tasks assigned to Mrs. Druley.

Mr. Grubb approved this decision and on

January 10, 1986, Mrs. Swisshelm advised

Ms. Christopher that her services as a

clinical nurse specialist would no longer

be needed.

Drs. Christopher and Dysert learned

what had happened, they confronted Mr.

Grubb and Mrs. Swisshelm and then went to

the obstetrics unit and wrote on all their

patient charts that Mrs. Druley was not to

attend their patients, an act both of them

admit was unprofessional.

Ms. Christopher was unwilling to

accept Mrs. Swisshelm's decision’ and

retained counsel who wrote to the

hospital's counsel on January 28, 1986. In

A-83

the meantime, her temporary limited

privileges had expired by reaching the

ninety-day limitation on January 10 and he

finally responded on January 28, 1986 (Def.

Ex. E, pp. 12, 18-19).

Before the question of privileges was

presented to the Executive Committee, Mrs.

Swisshelm's comments were obtained. Ina

memorandum dated january 31, 1986, she not

only questioned Ms. Christopher's training

abilities, but also characterized her as

"disruptive" and "untrustworthy." (Def.

Ex. E, D.21). She noted that Ms.

Christopher had written on doctor's

progress notes in contravention of hospital

policy and after being advised it was

inappropriate. She asserted Ms.

Christopher's presence had caused "chaos"

in both Obstetrics and Surgery.

Dr. Mark Hess, a member of the

Executive Committee, also prepared a

A-84

memorandum on Ms. Christopher's privileges

application. At the request of the Chief

of Medical Staff, Dr. Ellenbogen, he had

contacted L.R. Jordan, chief executive of

Miami Valley Hospital, about Ms.

Christopher's work when she was stationed

there by Wright State University.

According to Dr. Hess's memorandum of the

call (pl. Ex. 10), Mr. Jordan informed him

that Ms. Christopher's tenure at Miami

Valley had been "marked by severe turmoil,"

that she had "assumed iatioeity far beyond

what was proper" including writing

prescriptions for her husband's

countersignature, and that she had an

"endless series of conflicts with many

people." He also advised that Miami Valley

had insisted on her transfer and she had

thereupon sued Wright State for sex

discrimination.

On February 4, 1986, the Executive

A-85

Committee, having received both the Hess

and Swisshelm memoranda, voted unanimously

to deny Ms. Christopher's application for

limited privileges.

Dr. Hess was the only member of the

Executive Committee to testify. He denied

that he had considered the prior Title VII

lawsuit in deciding how to vote. Ms.

Christopher offered corroboration of her

belief that the prior lawsvit had been

considered by others. She recalled a

telephone conversation with Mr. Grubb

sometime after January, 1986, in which she

tried to negotiate at least Fer privileges

and in which Grubb said "If you hadn't had

some legal action prior to this, this might

not have occurred." Mr. Grubb might have

been referring to her having brought

counsel into the termination situation,

but, although present, he did not take the

stand to deny or explain this remark.

A-86

poe

Ms. Christopher also recalled a

conversation with Dr. Hess on March 8,

1986. She had been told by Dr. Dysert (not

a member of the Executive Committee) that

the denial was caused by her very broad

request for privileges (Jt. Ex. IX) which

included many procedures only performed by

doctors at Stouder. Dr. Hess asked her if

she planned to _re-submit a narrow scope

application. During the conversation she

claims Dr. Hess told her wouldn't have been

in her dilemma if she hadn't brought a

lawyer into the matter and had not filed

the prior lawsuit. Dr. Hess cannot recall

this part of the conversation and disputes

that it occurred based on his memorandum of

the call the next day (Def. Ex. E, p.22)

which makes no mention of this portion of

the conversation.

On March 20, Ms. Christopher withdrew

her prior application (Def. Ex. E., P.24)

A-87

and on March 25 she submitted a new, narrow

application for limited privileges (Id., p.

25 et seq.). Her husband, Dr. Dysert, and

Kevin Horvath, a pediatrician practicing at

Stouder, submitted supporting

recommendations.

At some -point in time Mrs. Nagle,

after consulting with Dr. Ellenbogen, the

Chief of Medical Staff, prepared a set of

Standards for Private Scrub Nurse (Def. Ex.

F). This document, which purports to have

been prepared in February, 1986, was not

approved by the Executive Committee until

1987, yet it was used by Mrs. Nagle to

prepare a survey questionnaire for the

other surgery nurses to rate Ms.

Christopher and the other person then

working as a private scrub nurse. Def. Ex.

I, a more complete copy of which is part of

Def. Ex. E, purports to represent the

results of that survey and shows that

A-88

virtually all the other operating room

nurses felt Ms. Christopher was deficient

with respect to the standards. The results

of the survey were made available to the

Executive Committee which on May 6, 1986,

again voted to deny Ms. Christopher

privileges.

This time the recommendation was taken

to the full Medical Staff on May 19, 1986.

Dr. Christopher was able to ask for reasons

for she denial. Dr. Horvath recalled that

someone answered that Ms. Christopher had

been a troublemaker at Miami Valley as well

as at Stouder. Privileges were denied on a

9-7 vote which was ratified by the Stouder

Board of Trustees on May 27, 1986. No

witness could recall any occasion when

either the full Medical Staff or the

Trustees had overruled an Executive

Committee recommendation on privileges.

Ms. Christopher claims that her employment

A-89

as aeclinical nurse’ specialist was

terminated and she was denied limited

privileges in breach of her contract rights

as a Stouder employee. She also claims both

these acts were unlawful retaliation for

her prior Title VII claim against Wright

State. At the conclusion of Plaintiff's

case, the Court dismissed under Fed. R.

Civ. P. 41(b) the claim that’ the

termination of employment was in

retaliation. The evidence established that

the decision to terminate Ms. Christopher's

services was made by Mrs. Swisshelm alone.

There is no evidence Mrs. Swisshelm even

knew about the prior matter, although Ms.

Christopher had put on her job application

that she left Wright State because of "job

discrimination." Mrs. Swisshelm testified

convincingly about the interpersonal

problems and the lack of progress in

training the obstetrical nurses. The Court

A-90

aerial eat

is not persuaded that she was motivated by

any discriminatory animus. As to any

breach of contract by denial of limited

privileges, the Defendant argued this claim

had not been pled and Plaintiff responded

by asking leave to amend to conform to the

evidence under Fed. R. Civ. P. 15(b).

Plaintiff's motion to amend is granted, but

the claim is without merit. It rests on

Plaintiff's argument that Article IX of the

Stouder Medical Staff Bylaws, Rules and

Regulations (Def. Ex. A) entitle her to

certain due process rights upon the denial

of her limited privileges which she was not

given. There is no dispute that she was not

afforded the notice and hearing rights in

question. However, these rights by their

own terms do not apply to a nurse. Article

IX throughout refers to rights of a

"practitioner" and that term is defined to

include only licensed physicians. While the

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;

Bylaws are the document which regulates the

grant of limited privileges, they do not

extend the internal "due process"

protections to non-physicians. Ms.

Christopher's breach of contract claim

relating to her termination as a clinical

nurse specialist relies on her theory that

the Stouder Employee Personnel Handbook

(Def. Ex. C) constituted a contract between

her and the hospital which was’ breached

when the hospital discharged her without

following the disciplinary procedure set

forth in the handbook. In determining a

pendent breach of contract claim, this

Court is bound to apply Ohio law. Erie

Railroad Co. v. Tompkins, 304 U.S. 64, 82

L. Ed. 1188, $8 8S. Ct. 8:17 (1938).

Plaintiff relies on Day v. Good Samaritan

Hospital, App. No. 8062 (Montgomery County,

8/11/83) for the proposition that an

employee personnel handbook can become a

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part of the contract of employment of an

at-will employee and result in contractual

rights respecting termination. The same

principle has been recognized in Mers v.

Dispatch Printing Co., 19 Ohio St. 3d 100

(1985) and Helle v. Landmark. Inc., 15 Ohio

App. 3d 1 (Lucas County 1984). Plaintiff

complains that she was not given the prior

warnings set forth in the Discipline

section of the handbook (p. 20) and in

particular that her dismissal was. not

approved by the Director of Personnel.

. Defendant presented no contrary evidence on

these claims. The Court, however, is

unpersuaded by Ms. Christopher's contract

Claim. First of all, Ms. Christopher did

not testify convincingly that she ever

relied on the handbook. More importantly,

she was not discharged for any sort of

disciplinary reason. Mrs. Swisshelm decided

that the obstetrical nurses were not

A-93

acquiring the required new skills fast

enough and it was obvious that Mrs. Druley

and Ms. Christopher were not cooperating,

despite many attempts, in training then.

She decided to perform the training

function in another way, by hiring an

obstetrical supervisor. That meant she no

longer could use Ms. Christopher who was in

effect laid off. It also meant a drastic

job change for Mrs. Druley. The language of

the discipline section deals with employee

malfeasance (e.g. theft, falsification of

time cards, etc.), not with terminations

for lack of work. Ms. Christopher's final

aim -- that she was denied scrub nurse

privileges in retaliation for her prior

Title VII claim against Wright State --

requires more extended analysis. The

elements of a prima facie retaliation claim

are:

(1) that plaintiff engaged in an activity

A-94

protected by Title VII; (2) that the

exercise of his [or her] civil rights was

known by the defendant; (3) that,

thereafter, the defendant took an

employwent action adverse to the plaintiff;

and (4) that there was a causal connection

between the protected activity and the

adverse employment action.

Wrenn v. Gould, 808 F. 2d 493, 500 (6th

Cir. 1987) following Cohen v. Fred Meyer,

Inc., 686 F. 2a 793, 796 (9th Cir. 1982).

The facts set forth above demonstrate Ms.

Christopher had established a prima facie

case; as to the fourth element, the causal

connection, there are numerous

circumstances and indirect admissions by

the decision makers involved from which a

causal connection could be inferred.

Once a prima facie case has been

established, a defendant is required to

articulate a legitimate nondiscriminatory

A-95

reason for its decision. McDonnell Douglas

Corp. v. Green, 411 U.S.792, 36 L.Ed. 2d

668,93 S. Ct.1817 (1973). Stouder Hospital

has met this burden in a number of ways.

First, it produced Mrs. Swisshelm's

January 31, 1986, memorandum regarding her

difficulties with Ms. Christopher; some

were relevant to the termination as

clinical nurse specialist, but some, such

as disregard of authority and policy, were

relevant to the scrub nurse privileges.

Second, it produced Mrs. Nagle's survey of

the operating room nurses who indicated

deficiencies in Ms. Christopher's

performance there. Third, it produced

that portion of Dr. Hess's February 3,

1986, sibel which recité@s the

problems with Ms. Christopher's

performance at Miami Valley. The Court

emphasizes here, as it did orally during

trial, that a Title VII claimant cannot

A-96

insulate poor job performance in a prior

job from consideration by a later employer

simply by making a Title VII claim against

the prior employer. In referring to what

he knew of her prior performance, Dr. Hess

was calling the Executive Committee's

attention to highly relevant information;

when that information was presented at

trial, Stouder articulated a legitimate

richie deuiiiiaiaaaas reason for its action.

Once a legitimate nondiscriminatory reason

has been articulated, the presumption of .

discrimination which flows from proof of a

prima facie case is eliminated. Weems v.

Ball Metal & Chemical Division, Inc., 753

F. 2d 527, 529 n.2 (6th Cir. 1985). Since

Stouder articuiated at least three

legitimate nondiscriminatory reasons for

denying privileges, Ms. Christopher was

then obliged to demonstrate that these

reasons were pretextual. Texas Department

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of Community Affairs v. Burdine, 450 U.S.

248, 67-L. Ed. 24 207, 101 8. €t. 1089

(1981). Proving pretext is equivalent to

proving that the real reason, the "but

for" cause, for the adverse employment

action is discriminatory animus. Goostree

v. Tennessee, 796 F. 2d 854, 863 (6th Cir.

1986). In Blalock v. Metals Trades, Inc.,

775 F. 2d 703 (6th Cir. 1985), the court

established guidelines for deciding dual |

motive Title VII cases where an employer :

was motivated by both a discriminatory and

a nondiscriminatory animus. Essentially

the Sixth Circuit applied the "same

decision" test of Mt. Healthy City School

District Board of Education v. Doyle, 429

U.S. 274, 97 s. GC. 568, 30 L. Ba. 2a 487i

(1977): once plaintiff has proved

—— |

discrimination was more likely than not

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the cause of the employer's decision, the

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burden shifts to the employer to prove by

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A-98

—_

a preponderance of the evidence that the

adverse decision would have occurred

anyway. Haskins v. United States Dept. of

Army, 808 F. 2d 1192, 1197 (6th Cir.

1987); East Texas Motor Freight System,

Inc. v. Rodriguez, 431 U.S. 395, 404 n. 9,

97 S. Ct. i891, 1897 n. 9, 52 L. Ed. 2d

453 (1977). Ms. Christopher has persuaded

this Court that she would have received

limited privileges but for retaliation

against her on the basis of the prior

claim against Wright State. Although there

were other factors which they could have

relied on, the prior litigation and

trouble at Miami Valley kept being

mentioned by the decision makers (Mr.

Grubb, Dr. Hess, Dr. Ellenbogen) both to

Ms. ariepher and to others (Dr. Dysert,

Dr. Horvath) between the time of the first

Executive Committee decision (2/4/86) and

the Medical Staff decision (5/19/86).

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In addition, much of the evidence on which

the second denial in May was based seems

to have been manufactured to guarantee the

result. Mrs. Nagle drafted private scrub

standards (Def. Ex. F) which by their very

terms made Ms. Christopher ineligible.

They required one year's full time

hospital scrub nurse experience at

sometime in the past and employment in

that capacity within two years prior to

coming to Stouder. These standards are

plainly discriminatory against the private

scrub nurse concept since Mrs. Nagle

admitted on the stand that nurses were

sometimes hired directly from nursing

school into the operating room at Stouder.

Further, the standards excluded Ms.

Christopher, a fact which Mrs. Nagle could

easily have learned from examining her

privileges file (Def. Ex. E). The

question then becomes whether Stouder has

A-100

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persuaded the Court it would have made the

same decision in the absence of

discriminatory motive. It has not. The

only decision maker to take the stand, Dr.

Hess, denied any retaliatory motive, but

mentioned the prior litigation to a number

of people in the February-May, 1986, time

period. None of the other decision makers

testified as to their reasons. The

competence reasons which they might have

relied on are not strong. Mrs. Nagle's

observations about Ms. Christopher's scrub

technique were made upon the erroneous

assumption that Ms. Christopher was a

trained and experienced scrub nurse. The

anonymous survey of other surgical nurses

was flawed in technique and essentially

gave Ms. Christopher's competitors a veto

over her working. In any event, there is

no proof the Executive Committee inquired

in any depth into competence questions;

A-101

the relevant meeting minutes are

completely opaque on any discussion.

Other reasons which might have been relied

upon are stronger. Ms. Christopher refers

to herself as a "change agent," a person

whose presence and Fole create turmoil.

There is ample evidence this occurred at

Stouder, but there is not sufficient proof

to persuade this Court Ms. Christopher

would have been denied privileges on that

basis, absent the prior lawsuit.

Defendant argued in closing that the Court

lacks subject matter jurisdiction because

Ms. Christopher filed her charge with the

Ohio Civil Rights Commission on May 23,

1986, and the Board of Trustees did not

finally confirm the denial until May 27,

1986. No authority is offered for the

argument and it was not included in

Defendant's prior jurisdictional motion

(Doc. #2) which District Judge Rice

~ A-102

: overruled. Plaintiff had already suffered

a discriminatory denial of privileges in

February and no witness could recall any

occasion when the Board of Trustees had

overruled a Medical Staff decision on

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: privileges. The timing of the charge in

this case creates no prejudice to the

Defendant, which could have remedied the

claim on May 27th but did not. The Court

finds no jurisdictional defect. As to the

relief to be awarded, Ms. Christopher is

not entitled to back pay. Had she been

given the limited privileges she sought,

the testimony is that she would have been

placed on the payroll of her husband's and

Dr. Dysert's private practice. No one

contemplated that she would continue to

act as a private scrub nurse but be on

Stouder's payroll; in fact, Mrs. Swisshelm

regarded the fact that that had happened

at all as quite irregular. While the

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A-103

;

denial of privileges m-y have caused her

to lose the opportunity to work as a

private scrub nurse, the Court is not

entitled to award general compensatory

damages under Title VII, but only back

pay. In any event, the proof of loss with

respect to that potential employment was

quite sketchy. Ms. Christopher seeks

reinstatement of her limited entitled to

ensure that she is technically competent

as a scrub nurse, since there were some

valid concerns expressed about that at the

time she was at the hospital and it has

now been two and one-half years since she

has acted in that capacity. Accordingly,

counsel for the parties are directed to

consult with a view to devising a neutral

objective measurement of Ms. Christopher's

present competence to act as scrub nurse.

If the parties are unable to agree on a

process of measurement within thirty days,

A-104

they shail present competing proposals to

the Court which will adopt one. Ms.

Christopher has sought attorney fees and

appears to be a prevailing party within

the requirements for such an award.

Plaintiff may present an appropriate fee

petition.

July 23, 1988.

Michael R. Merz

UNITED STATES MAGISTRATE

A-105

MR. DIXON: Mrs. Swisshelm, I would

like to refer you now to Exhibit E. May I

help the witness find this --

THE COURT: I think you can do that

and we'll do it while we're having a brief

recess. Five minutes.

(Recess. )

THE COURT: You may proceed, sir.

MR. DIXON: Thank you.

BY MR. DIXON:

Q. Mrs. Swisshelm, I'd like to refer

you to a memo dated January 31 that's

contained in Exhibit E of defendant's

exhibits. Can you identify that document?

A. Yaa, 632.

Q. And what is it?

A. It is Mr. Grubb had requested that

I write my nursing feelings on Mrs.

Christopher and this~is the document that I

wrote.

Q. You did write this?

A-106

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A. Yes, sir.

Q. And you gave it to Mr. Grubb?

A. Wee, O8e.

Q. What was your understanding of

Mrs. Christopher's employment status on

January 10, 1986?

A. She was a pool nurse.

Q. Had you ever taken her out of the

pool?

A. No.

Q. Could you go back to’ now the

status card that we talked about before

that's on Exhibit B. Do you have that?

a. See Bie.

Q. Your name's on that card; correct?

A. Yes.

Q. And the date. The date effective,

do you see that?

A. Yes.

Q. Did you provide any information to

the personnel department after June 10

A-107

regarding Mrs. Christopher's status?

A. No.

Q. After Mrs. Christopher left her

teaching responsibilities on January 10,

did you have a discussion with anybody

concerning Mrs. Christopher's possible use

in the pool?

A. Yes.

Q. And when was that?

A. Well, it was after this. Dr.

Dysert called

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.