Sibley Memorial Hospital v. Wilson

• Decision Date: 29 November 1973
• Docket Number: No. 72-1498.,72-1498.
• Citation: 488 F.2d 1338
• Parties: SIBLEY MEMORIAL HOSPITAL, Appellant, v. Verne WILSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

488 F.2d 1338 (1973)

SIBLEY MEMORIAL HOSPITAL, Appellant, v. Verne WILSON.

No. 72-1498.

United States Court of Appeals, District of Columbia Circuit.

Argued October 26, 1973.

Decided November 29, 1973.

Thomas M. Raysor, Chevy Chase, Md., for appellant.

R. Bruce Keiner, Jr., Washington, D. C., for appellee.

Julia P. Cooper, Acting Associate Gen. Counsel, Equal Employment Opportunity Commission, Beatrice Rosenberg and Edward Katze, Attys., EEOC, filed a brief on behalf of the EEOC as amicus curiae.

Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

This appeal from a sua sponte grant of summary judgment in the District Court, 340 F.Supp. 686, requires us to resolve only the question of whether, on the facts alleged in the complaint, the action was maintainable under Title VII of the Civil Rights Act of 1964. 42 U. S.C. § 2000e et seq. We agree with the District Court's holding that it was, but we do not agree that the record before it justified the District Court's entry of summary judgment, since the liability of appellant under the Act depends upon the resolution at trial of material issues of fact which appear to be in dispute. Accordingly, we reverse and remand for further proceedings.

I

Appellee is a male private duty nurse licensed to practice in the District of Columbia. Appellant is a private non-profit hospital in the District of Columbia. Appellee works for patients in private hospitals pursuant to arrangements under which hospital patients who require the services of a private nurse ask the Nursing Office of the hospital to communicate their need to one of the registries operating in the District — the Professional Nurses' Official Registry or the United States Employment Service registry. When a patient at appellant Sibley makes such a request, he or she is informed that neither the hospital nor the registry to which it will refer the offer of employment can discriminate on the basis of race, age or sex. The patient's request is telephoned to the Professional Nurses' Official Registry, which matches the request with the name of a nurse who has indicated his or her availability for work that day. The nurse is informed of the patient's name and situation, and told to report directly to the patient's room at the hospital. If, on arrival, the nurse is for any reason unacceptable to the patient, the patient is nevertheless obliged to pay the nurse for a full day's work.

This registry and referral system is designed to insure that no private duty nurses are victimized by invidious discrimination. Such nurses as are rejected by patients for discriminatory reasons must be paid by the patient for one day's service. Appellee alleged, however, that on two occasions, in 1968 and 1969, supervisory nurses at appellant themselves rejected him because he is a male and the requesting patients were female; and that such supervisory personnel prevented his reporting to the requesting patient, to be accepted or rejected but nonetheless compensated. He further alleged that during the period 1936 to 1970 every patient whom he attended at appellant was male, despite the fact that female nurses routinely served both male and female clients.

In the wake of his first alleged rejection, appellee filed complaints with District of Columbia Council on Human Relations and the United States Equal Employment Opportunity Commission (EEOC). The EEOC, having found reasonable cause to believe that appellant had violated the terms of Title VII of the Civil Rights Act of 1964, attempted to conciliate the dispute, without success. It eventually notified appellee of the accrual of his right to sue in District Court, and a timely complaint was filed for injunctive relief and for monetary damages.¹

Appellee's original complaint, filed September 13, 1971, alleged but one cause of action, that arising under Title VII. Appellant responded on October 12, 1971, by moving to dismiss, or for summary judgment, on the sole ground that "the complaint did not allege jurisdictional facts to come within said statute, i. e., it did not set forth the necessary employer-employee relationship. . . ." The motion was supported by a statement of material facts as to which there is no dispute. Rule 9(h) of the Local Rules. Appellee, on December 2, 1971, filed an opposition, supported by an affidavit reciting the two occasions on which he asserted that he had been turned away by the supervisory personnel.²

In this posture, the District Court decided the jurisdictional issue adversely to appellant and, accordingly, denied its motion to dismiss or for summary judgment. Appellant having not as yet responded in any fashion on the merits, the court noted that the hospital did not appear to have denied appellee's factual allegations, and, on the basis of the papers before it and without oral argument, entered summary judgment, sua sponte, for appellee.

II

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to engage in certain enumerated forms of discrimination on the basis, inter alia, of sex. For purposes of the Act, an "employer" is, with certain exceptions not here relevant,³ defined as a "person engaged in an industry affecting commerce who has twenty-five or more employees." That appellant falls within this definition is not disputed. Appellant takes the position, however, that, since no direct employment relationship between itself and appellee was ever contemplated by either of them, it is not an employer under the Act with respect to him.

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 . . ." (Emphasis supplied). Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 853 (1969). In prohibiting discrimination in employment on the basis of sex, "one of Congress' main goals was to provide equal access to the job market for both men and women." Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 386 (5th Cir.), cert. denied, 404 U. S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). 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 has determined to prohibit each of these from exerting any power it may have to foreclose, on indivious grounds, access by any individual to employment opportunities otherwise available 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 continued use of the very criteria for employment that Congress has prohibited.

A fair reading of the Act in the light of its stated purposes precludes such a result. Section 703(a) (1) provides that:

(a) 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 . . . sex. . . . 42 U.S.C. § 2000e-2(a) (1). Emphasis added.

The Act defines "employee" as "an individual employed by an employer," but nowhere are there words of limitation that restrict references in the Act to "any individual" as comprehending only an employee of an employer. Nor is there any good reason to confine the meaning of "any individual" to include only former employees and applicants for employment, in addition to present employees. Those words should, therefore, be given their ordinary meaning so long as that meaning does not conflict with the manifest policy of the Act.

The Act, in providing for the filing of complaints with EEOC and of eventual actions in the District Court, does not use the term "employee." The phrase is, rather, the "person aggrieved;" and that term can certainly be taken as comprehending individuals who do not stand in a direct employment relationship with an employer. 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 Section 703(a) (1) reach beyond the immediate employment relationship.⁴ It seems unlikely that Congress would confer standing to bring a suit under the Act upon persons without rights under the Act because they are not employees.

Appellant presses upon us the asserted incompatibility of the nature of the remedies referred to in Section 706(g) as supporting its narrow interpretation of Section 703(a) (1). The former provision authorizes the district courts, on finding an intentional violation of the Act, to

enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice). 42 U. S.C. § 2000e-5(g).

Appellant argues that this provision "concerns relief that only an employer can give to its employees." The statutory enumeration of remedies is by its terms, however, illustrative rather than exhaustive; and it also reaches explicitly beyond the context of direct employment to employment agencies and labor organizations. While neither hiring nor reinstatement may be relevant outside the context of direct employment, both injunctive and back pay relief (in the sense of monetary damages for lost employment opportunities) may be available, in an appropriate case, against respondents who are neither actual nor potential direct employers of particular ...