# Opposition Brief — Stouder Memorial Hospital v. Christopher

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 1013

## Text

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

ii

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

iv

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

2

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

3

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

4

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

5

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

6

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

9

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

10

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,

11

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

12

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,

je

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

14

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

15

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

16

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

17

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.

18

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

20

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

21

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.

i.

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

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]
ee
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.

TN

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.

>
1

30

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

ae

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]

V.

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

As

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

ad

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

>
I

72

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

A-91

;

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

A-92

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

ee

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

A-97

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

Pe

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

e
(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

itt Ja

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).

A-99

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

ae

: 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

Bute: Weer cae milla agtde: eiiie ie

: 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

Sp ae
AM RD is. BNA nie itd

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

A-108

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2929%3A2. Public record. Not legal advice.