The opinion of the court was delivered by: BECKER
This opinion addresses the question whether a male nursing director, who claims that he was discharged from his position and subsequently "blacklisted" by his former employer because of his vigorous advocacy of the rights, privileges, and professional status of his predominantly female nursing staff, can identify in an extensive pretrial discovery record, or supply by affidavit, a genuine issue of material fact such as will get him by the motion for summary judgment interposed by all defendants with respect to his civil rights claims under 42 U.S.C. § 2000e-3 and 42 U.S.C. § 1985(3) and his antitrust claims under 15 U.S.C. § 1. The factual background of the case is as follows.
The plaintiff, Thomas J. Daley (Daley) is the former director of nurses at St. Agnes Hospital, now known as St. Agnes Medical Center, in Philadelphia. During the winter of 1974-75 Daley became the focus of widely publicized controversy, in the course of which he was discharged. The Hospital, its administrator, Sister Anthony Consilia, and its Board of Trustees are the defendants, targets of Daley's contention that his discharge was an act of sex discrimination prompted by his vigorous advocacy of the rights, privileges, and professional status of his nursing staff. It is uncontested that the nursing profession is traditionally overwhelmingly female. Daley's maleness is inconsequential to his claim.
While this contention would ordinarily form the basis for a Title VII claim, Daley concedes that such a claim is time-barred, for Title VII, in 42 U.S.C. § 2000e-5(e), requires that a charge must be filed with the Equal Employment Opportunity Commission (EEOC) "within one hundred and eighty days after the alleged unlawful employment practice occurred." Daley was discharged on January 10, 1975, but did not file his charge with the EEOC until December 19, 1975, almost a full year later. Thus, it is agreed that, to prevail, Daley must establish unlawful employment practices by defendants after June 22, 1975, i. e., within one hundred and eighty days before the filing of his charge with the EEOC. To that end, Daley contends that St. Agnes engaged in illegal retaliatory conduct, which began with Daley's discharge and continued after June 22, 1975 throughout the 180 day statutory time period. The retaliation, Daley alleges, was effected in concert with other hospitals to the end of preventing him from securing a new position in nursing administration. This was allegedly accomplished by issuing unfavorable references and by placing Daley's name on a "blacklist."
In addition to his Title VII claim, Daley asserts a cause of action under the Sherman Act, 15 U.S.C. § 1, claiming that the conspiracy to deprive him of comparable employment following his discharge constituted a group boycott in violation of the antitrust laws. Furthermore, he maintains that 42 U.S.C. § 1985(3) provides him a remedy on three bases: that defendants' conspiracy interfered with his right to travel by depriving him of his opportunity to support himself outside the state; that the conspiracy interfered with his First Amendment rights to freedom of speech and association; and that 1985(3) can be used to redress his statutory right to be free of defendants' violation of the Sherman Act.
He also asserts pendent state claims of defamation and interference with advantageous business relations.
In March of 1977, defendants moved to dismiss the complaint under Rules 12(b) (1) and 12(b)(6), or in the alternative for summary judgment. In July of 1978, following extensive briefing and oral argument, we dismissed plaintiff's claim under 42 U.S.C. § 1981 by agreement of the parties; granted summary judgment for defendants on plaintiff's claim under 42 U.S.C. § 1983 for lack of state action; denied defendants' motions with respect to plaintiff's claims under 42 U.S.C. § 1985(3) and under Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3; and reserved defendants' motion on plaintiff's Sherman Act claim pending further discovery. Since that time, the parties have engaged in extensive discovery; the record for summary judgment includes numerous affidavits and depositions. We held oral argument on defendants' motion for summary judgment on April 11, 1980,
and, after examining the record before us, we conclude that summary judgment for the defendants is appropriate on all counts.
The following are the material facts of record as they have been developed in discovery and by affidavits. Daley was employed by St. Agnes Hospital in May, 1972 as Director of Nursing Services and was promoted in May, 1973 to Director of Nursing Affairs. In this capacity, he was responsible for the St. Agnes School of Nursing, the supervision of nursing services, and nursing staff development, including the hiring, promoting, firing, and future planning for nursing services. While Daley was employed by St. Agnes, the nursing staff was overwhelmingly female, while the medical staff was predominantly male.
During Daley's two and one-half year tenure at St. Agnes, conflict developed between the nursing department and other departments of the hospital, primarily the medical staff. While the causes of this conflict are in dispute, it is plain that considerable acrimony was engendered. The discord apparently centered around the appropriate role of nurses vis-a-vis doctors. For example, some physicians demanded a role in the hiring and promotion of nurses within their units on the grounds that positive working relationships were essential to the smooth operation of the unit. The nursing staff believed such a role for the medical staff to be inappropriate, maintaining that only nursing professionals are competent to assess the qualifications of nurses, and that nursing supervisory personnel bore ultimate legal responsibility for their nurses' performance. To allow physicians to interfere in the process would be to abdicate their own responsibilities, leaving them open to potential legal liability, the nurses believed.
The picture which emerges is of a bitterly divided hospital, with doctors pitted against nurses. While there is some testimony to support plaintiff's characterization of the situation as one in which the medical staff was seeking to ensure the continued subservience of nurses, for purposes of this motion we need not make such a finding. In any event, it was determined that the hospital could not continue to function in such a divisive manner and, whether justifiably or not, Mr. Daley, as head of the nursing staff and a vocal advocate of the nurses' position, was identified as the source or at least the center of the discord. Accordingly, despite his consistently superior performance evaluations by his supervisor, Mr. Larkin, Associate Administrator of the Hospital, his termination was sought.
On December 16, 1974, the hospital's medical staff recommended that the administration request Daley's resignation because of his failure to rectify the numerous problems they perceived in the Nursing Services Department. On January 9, 1975, a special meeting of the defendant Board of Trustees was convened to discuss the by then explosive situation. The Board decided that the problem was an administrative one, and voted to accept any disposition of the matter adopted by the Administrator, defendant Sister Anthony Consilia. On January 9, 1975, following the Board meeting, Sister Anthony Consilia requested Mr. Daley's resignation, but Daley refused to resign voluntarily. Accordingly, on the following day, Sister Anthony discharged Daley, effective immediately. Mr. Daley was informed that his termination was "for inability to ...