Mousavi v. Beebe Hosp. of Sussex County, Inc., Civ. A. No. 86-129-CMW.

• Decision Date: 12 November 1987
• Docket Number: Civ. A. No. 86-129-CMW.
• Parties: Shahla V. MOUSAVI, M.D., Plaintiff, v. BEEBE HOSPITAL OF SUSSEX COUNTY, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Delaware

674 F. Supp. 145

Shahla V. MOUSAVI, M.D., Plaintiff, v. BEEBE HOSPITAL OF SUSSEX COUNTY, INC., a Delaware corporation, Defendant.

Civ. A. No. 86-129-CMW.

United States District Court, D. Delaware.

November 12, 1987.

Joseph M. Bernstein, Wilmington, Del., for plaintiff.

Mason E. Turner, Jr. of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant.

OPINION

CALEB M. WRIGHT, Senior District Judge.

BACKGROUND

This action was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1986). The plaintiff is Shahla V. Mousavi, M.D. ("Dr. Mousavi"), a female naturalized citizen of the United States. Dr. Mousavi is a physician specializing in neurology. The defendant is Beebe Hospital of Sussex County, Inc. ("Beebe" or "the Hospital").

The factual predicate to this case began in August of 1984, when Dr. Mousavi and her husband, also a physician, moved from Essex County, New Jersey, to Seaford, Delaware, to establish medical practices there. PTO 3 at III(4).¹ Also in late 1984, Beebe Hospital, located about 30 miles from Seaford, in Lewes, Delaware, began to recruit a neurologist willing to commit him or herself full-time to Beebe. Tr. A-14, 38, 42, 74. Beebe's efforts in this regard were by word-of-mouth and advertisements in medical journals. In Dr. Mousavi's case, one Dr. Saberi, a fellow Iranian with whom Dr. Mousavi and her husband had become acquainted in 1980, Tr. A-6, 172, established contacts with Dr. Mousavi on behalf of the Hospital, Tr. A-9, 47, and continued to try to persuade her to come to Beebe. Tr. A-22-23.² However, while it is clear that an opportunity of association with Beebe was held out to Mousavi, she apparently did not perceive that association as involving a full-time commitment to Beebe, at least not initially. PX-2 (application for courtesy staff privileges); Tr. A-182, 185, B-33.

Dr. Mousavi's practice in Seaford was, at that time, fairly slow. Tr. A-174-75. In response to Dr. Saleri's encouragement, Dr. Mousavi applied to Beebe on December 5, 1984, for courtesy staff privileges. Such privileges would allow her to admit patients and do consultations, but carried no requirements such as attendance at meetings or emergency availability. PX-2; PX-21 at 4 (Hospital By-Laws). She was granted temporary privileges on December 11, 1984, and began seeing patients at Beebe. PX-3; PX-22. On January 24, 1985, she wrote Beebe to request that her application for courtesy staff be changed to an application for active staff. PX-5.

During this period, Beebe continued its search for a full-time neurologist. On January 28, 1985, Dr. Jonathan Hall responded to one of the advertisements for the neurologist position, Tr. A-123-24, and subsequently came to Lewes from St. Louis, Missouri, where he was completing his neurology residency. DX-3. Dr. Hall visited and made several telephone calls to Beebe specifically relating to the position, Tr. A-64, 101-02, and he expressed concerns about his ability to maintain a successful neurology practice in Lewes, given the small size of the area. Tr. A-125-27. He inquired about financial assistance from Beebe, including a minimum income guarantee for the first year. Tr. A-128-30.

On February 13, 1985, the Staff Development Committee³ received, through Dr. Khorfan, Chief of Medicine, the Medical Service's recommendation of Dr. Hall for the neurologist position. DX-4. Dr. Hall, upon being offered the position, renewed his financial concerns, and Beebe orally agreed to undertake certain financial assurance measures for him. Tr. A-129-31. On March 24, 1985, Dr. Hall confirmed in writing the financial arrangements and his acceptance of the position, based upon those arrangements. DX-5.

While negotiations with Dr. Hall were taking place, Dr. Mousavi contacted various individuals at Beebe several times, requesting that action be taken on her application for active staff privileges. PX-8; PX-9. The Hospital did not respond, Tr. A-196, and in a letter dated April 19, 1985, Dr. Mousavi threatened to take legal action if she did not receive an answer within two weeks. PX-9; Tr. A-197-98.

Beebe's response consisted of a letter informing Dr. Mousavi that Dr. Hall had been chosen to fill the neurologist position. The letter referred to Dr. Mousavi as a "candidate" for that position. PX-10. Dr. Mousavi then wrote Beebe to inquire whether the appointment of Dr. Hall amounted to a denial of her application for active staff privileges. PX-11. Again, Beebe did not reply.

At this point, Dr. Mousavi hired an attorney to pursue the matter with the Hospital. Her attorney wrote to the Hospital on May 10, 1985, reiterating Dr. Mousavi's concerns that Dr. Hall's selection constituted a denial of her application. PX-12. Also on May 10, Dr. Mousavi's application was referred back to the Credentials Committee, which had earlier approved her for courtesy staff privileges. DX-9. The Medical Executive Committee gave Dr. Mousavi active staff privileges on June 14, 1985. DX-9.

However, the Hospital's letter to Dr. Mousavi informing her of her active staff privileges also indicated that Dr. Hall's relationship with Beebe was in the nature of an exclusive agreement. PX-13.⁴ The effect of this agreement was to decrease drastically the number of Dr. Mousavi's consultations at Beebe subsequent to July 1, 1985, when Dr. Hall began at Beebe. Tr. A-141-43, A-206-07; PX-22. There was a substantial decline in her private practice, and in April of 1986, Dr. Mousavi closed her Lewes office. Tr. B-9.

The gist of Dr. Mousavi's complaint under Title VII is that Beebe's treatment of her, culminating in its contract with Dr. Hall, was a result of discrimination against her on account of her sex, and thus impermissibly deprived her of an equal employment opportunity and interferred with her employment opportunities beyond the Hospital. The case was tried to the Court on June 10 and 11, 1987. This Opinion constitutes the Court's findings of facts and conclusions of law in accordance with Fed.R. Civ.P. 52(a).

DISCUSSION

A. Standing

At the threshold of this case, the Court must determine whether Mousavi has standing to sue under Title VII. While it is clear that Beebe is an employer within the meaning of Title VII,⁵ it is not equally clear how to define Beebe's potential relationship with Mousavi. Title VII states at 42 U.S.C. § 2000e-2(a)(1):

It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. ...

The words of this subsection and caselaw interpreting it indicate that a person need not be a common-law employee to maintain a suit under Title VII. See, e.g., Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973) (there is no indication in Title VII that "any individual" should be read to mean only an employee of an employer). Moreover, the provisions in Title VII relating to the private right of action use the phrase "person aggrieved". 42 U.S.C. § 2000e-5(f)(1). See Hackett v. McGuire Bros., Inc., 445 F.2d 442, 445 (3d Cir.1971) (Statutory definition of an "employee" does not limit the right to bring Title VII actions to that class. The Act permits an "aggrieved person" to maintain a Title VII action, and this term has a broader meaning than "employee".); Sibley, 488 F.2d at 1341 ("the phrase `person aggrieved' ... can certainly be taken as comprehending individuals who do not stand in a direct employment relationship with an employer").

As the court in Sibley stated:

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.

Sibley, 488 F.2d at 1341. Thus, the sine qua non of a claim under Title VII is not an existing or potential formal employment relationship between Dr. Mousavi and Beebe.

The Third Circuit has adopted a test to aid in evaluating when a relationship that is not truly one of employer-employee is nonetheless within the scope of Title VII. This test is a hybrid of the "right to control" standard and the "economic realities" standard. E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 37 (3d Cir.1983). The former standard, which focuses on an employer's "right to control", was the standard by which the common law distinguished an independent contractor from an employee. See United States v. Silk, 331 U.S. 704, 714 n. 8, 67 S.Ct. 1463, 1468 n. 8, 91 L.Ed. 1757 (1947). The latter, broader standard was developed by the Court for use in deciding employee status for the purposes of social legislation. Bartels v. Birmingham, 332 U.S. 126, 130, 67 S.Ct. 1547, 1549-50, 91 L.Ed. 1947 (1947) (Social Security Act). Under this test, "employees are those who as a matter of economic reality are dependent upon the business to which they render service."⁶

The Zippo court approved a variety of factors to be considered in making a determination of employee status under the hybrid standard. These factors include:

(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the `employer' or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and

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