Martin v. Roosevelt Hospital

• Decision Date: 06 April 1970
• Docket Number: No. 477,Docket 33953.,477
• Citation: 426 F.2d 155
• Parties: Donald C. MARTIN, Jr., Plaintiff-Appellant, v. ROOSEVELT HOSPITAL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 155 (1970)

Donald C. MARTIN, Jr., Plaintiff-Appellant, v. ROOSEVELT HOSPITAL, Defendant-Appellee.

No. 477, Docket 33953.

United States Court of Appeals, Second Circuit.

Argued January 20, 1970.

Decided April 6, 1970.

Howard F. Ordman, New York City (Putney, Twombly, Hall & Hirson, New York City, of counsel), for plaintiff-appellant.

Walter J. Holzka, New York City (Winthrop, Stimson, Putnam & Roberts, New York City, of counsel), for defendant-appellee.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal raises a novel question concerning the application of the reemployment provisions of § 9 of the Selective Service Act, 50 U.S.C.App. § 459(b), to a hospital resident. So far as here relevant, the statute provides that any person who "leaves a position (other than a temporary position) in the employ of any employer" in order to perform military service is entitled to be reemployed in that position upon satisfactory completion of his service if he makes application therefor within ninety days after discharge, "unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." For one year after reinstatement the employer is forbidden to discharge the returned veteran without cause. By 50 U.S.C.App. § 459(d), the district courts are given jurisdiction over actions to compel performance of the employer's duty under the section.

In 1963 Roosevelt Hospital, a highly regarded voluntary hospital in New York City, maintained a five-year training program in surgery. Each year eight physicians entered the program under two-year contracts. If an opening developed after the first or internship year, an additional physician who had completed a year of internship elsewhere might be hired for the next step on the ladder, known as "third assistant resident," under a one-year contract. The eight were winnowed to three "second assistant residents" for the third year. However, it was normal for two or three of the third assistants not to compete for the second assistant posts, going instead into other residency programs at the hospital, such as gynecology or orthopedics. The hospital had three "first assistant residents" in surgery during the fourth year and three "chief residents" in surgery during the fifth. A booklet describing the program stated:

Appointments are available each July. In the last three years appointments are generally made from the resident group of the preceding year. Every effort is made to reappoint those members of the resident staff who are called into the armed forces before completion of their training.

The plaintiff, Dr. Martin, had received his M.D. degree from the University of Pennsylvania in 1962 and served his internship at Pennsylvania Hospital. In December 1962 he was offered and accepted a position as third assistant resident in surgery at Roosevelt Hospital for the ensuing year and signed a contract "to serve the Hospital faithfully for the full period of the year, or during the pleasure of the Board, from July 1, 1963, to July 1, 1964." On arriving he was told that he would have the same chance of promotion at the end of the year as any of the other third assistant residents except that in the event of an exact tie the hospital "would give the nod" to a resident who had served his internship there. At trial the executive vice-president of Roosevelt Hospital testified that in the one or two earlier cases he could recall in which doctors had entered the program at the third assistant level, they had not been selected to return for the following year. He attributed this to the fact that selections for second assistants were made in the fall, and the natural tendency of the staff surgeons was to prefer a man with whom they had worked for fifteen months over one they had known for only three. There was no testimony that this greater degree of built-in bias against interns from other hospitals was communicated to Dr. Martin.

After Dr. Martin had spent three months at the hospital, he was ordered to two years of active duty with the Navy. In June 1964, while in Okinawa, he notified Dr. Amendola, chief of the hospital's department of surgery, of his desire to "be fitted back into the position of third assistant" upon completion of his service in September 1965. Dr. Amendola answered, "Although it appears at present that there will not be any vacancies on the staff when you are available in September, 1965, I would suggest that you fill out the enclosed application form for our active file." Dr. Martin replied that he "was disappointed at not being reinstated as third assistant" and "had trouble making himself fill out another application form, when a previous one has already been processed and approved." He added, "It might well be that I am not the most gifted third assistant to try my hand at surgery at the Roosevelt Hospital, but three months hardly seems like a sufficient length of time to prove oneself."

Having been transferred to the Naval Hospital in Bethesda, Maryland, Dr. Martin came to New York during the winter of 1964-65 to press his application; another head surgeon at Roosevelt stated that he knew of no vacancies for the coming year. Shortly thereafter Dr. Martin was offered and accepted a position as junior assistant resident at Boston City Hospital, to commence on his release from the Navy. He was honorably discharged on September 30, 1965, and began service in Boston the next day. Rapidly becoming dissatisfied, Dr. Martin wrote Roosevelt Hospital during October; the text of the letter is not available. On November 3, 1965, the hospital sent him application forms. Dr. Martin filled them out and returned them on November 30, along with an explanatory letter. This recited the facts, his disappointment at not having been reinstated as a third-year resident at Roosevelt, his reasons for desiring to be trained there, and his hope that he might "return to the Roosevelt Hospital as a second assistant resident in surgery, having completed this current academic year at the Boston City Hospital." Not receiving an answer, Dr. Martin came to New York for an interview with Dr. Patterson, Executive Officer of the Department of Surgery, to inquire whether there were any openings in the program; "it was implicit, since I submitted an application, that I was referring to the second assistant."

In the spring Dr. Martin again wrote the hospital; Dr. Patterson answered, on April 27, 1966, that "Unfortunately, our surgical residency program continues to be very full" and encouraged Dr. Martin to pursue plans, evidently mentioned by him, to seek a residency in England. A month later Dr. Martin answered, expressing his hope that he could "be fitted in somewhere along the line" and stating that he felt "as a matter of principle" he should be allowed to finish the year he "started in 1963." Dr. Patterson replied "that our residency training program is full and that we have many men returning from the armed services, at regular intervals. These are men who began their training with us and we are obligated."¹

In October, 1966, having become a resident at Monmouth Medical Center, N. J., Dr. Martin tried again. Dr. Patterson declined, explaining that "our first responsibility is to those men who began their surgical training with us as surgical interns" and that all of the present group of interns would continue the next year. Dr. Martin applied once more in January 1967, while serving at a hospital in Long Island, but was told the quota was full until a year from July. Having gone to Guy's Hospital in London, he wrote in April 1968, seeking appointment either for the year...