B. The Employment Relationship
The defendants also assert that the plaintiff does not stand in an employment relationship with the Hospital within the meaning of 42 U.S.C. § 2000e-2. They stress that the plaintiff has adequate alternative facilities at which he can receive staff privileges, and that Dr. Pao did not depend on the defendant for access to employment opportunity to the degree contemplated by the Act. I cannot agree.
Whether or not the plaintiff had access to, or could gain access to, other hospital facilities, is not relevant to the principal question whether his Title VII rights have been violated. The purpose of Title VII is to eliminate hiring, firing and other practices relating to employment opportunities which are discriminatorily motivated. Alexander v. Gardner-Denver Co., supra note 1, 415 U.S. at 44, 94 S. Ct. at 1017. Thus, the focal question is whether the defendants can be considered employers whose allegedly invidious conduct deprived the plaintiff of an employment opportunity within the meaning of the Act.
This case falls quite clearly within the line of cases beginning with Sibley Memorial Hospital v. Wilson, 160 U.S. App. D.C. 14, 488 F.2d 1338 (D.C. Cir. 1970). There, the D.C. Circuit held that a Title VII plaintiff need not establish an existing or potential formal employment relationship with the defendant in order to sue. Instead, it was sufficient for the plaintiff to assert that the defendant significantly affected or controlled his access to other employment opportunities in a discriminatory manner. Sibley Memorial Hospital, supra; see also Vanguard Justice Society, Inc. v. Hughes, 471 F. Supp. 670 (D.Md.1979); Puntolillo v. New Hampshire Racing Association, 375 F. Supp. 1089 (D.N. H.1974).
In Sibley, the D.C. Circuit found that the requisite amount of control existed over a plaintiff's access to employment where the defendant hospital discriminatorily refused to refer a private-duty male nurse to female patients. Although the hospital did not directly employ the nurse, the court concluded that since the Hospital's conduct foreclosed employment opportunities that would otherwise have been available to the plaintiff, the case came within the ambit of Title VII. Sibley, supra, 488 F.2d at 1341.
In the present case, it appears that if the allegations contained in the amended complaint are true, the defendants' discriminatory conduct will have deprived the plaintiff of prospective patients desiring the convenience and resources of Holy Redeemer Hospital's retinal facilities. Thus, Holy Redeemer Hospital had the same capacity as the defendant in Sibley to control the plaintiff's access to those prospective patients who are his ultimate "employers."
In light of Congress' intent to reach all forms of discriminatory employment practices that affected employment opportunity, it seems apparent that the amended complaint sufficiently alleged an employment relationship covered by Title VII. See generally Sibley, supra, 488 F.2d at 1341-42; Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 131 (6th Cir. 1971) ("Title VII of the Civil Rights Act should not be construed narrowly"); 1964 U.S.Code Cong. and Admin.News, p. 2355, 1972 U.S.Code Cong. and Admin.News. p. 2137).
C. The Improperly Named Defendants
The defendants assert that the plaintiff cannot avail himself of this court's jurisdiction as to defendants James Gallagher, Jr., and Richard Goldberg since they were not named in the plaintiff's EEOC complaint as is required by 42 U.S.C. § 2000e-5(f) (1). While dismissal of this count appears warranted with respect to Dr. Goldberg, I find that to dismiss defendant Mr. Gallagher would impose too technical a reading of Title VII's jurisdictional requirements on the plaintiff's claim.
In his complaint to the EEOC, the plaintiff claimed in the section provided for "particulars" that the sought-after staff privileges were denied him by the Board of Directors on April 25, 1979. The Fifth Circuit, in declining to give a restrictive reading to language used in filling out a form of administrative complaint frequently filed by laypersons, found in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970), that a complainant's "factual statement" is "the crucial element" in an EEOC charge. In an analogous vein, the Third Circuit has held, in Glus v. G. C. Murphy Co., 562 F.2d 880, 887-88 (3rd Cir. 1977), that jurisdictional requirements under 42 U.S.C. § 2000e-5(f) (1) should be "liberally construed."
Dr. Pao's EEOC complaint, though perhaps inartful, fulfilled the purpose of the EEOC filing requirements which is "to give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation." Glus, supra, 562 F.2d at 888. See also Kaplan v. Intern. Alliance of Theatrical and Stage Employees and Motion Picture Machine Operators of the United States and Canada, 525 F.2d 1354 (9th Cir. 1975) (holding that where the complaint, in general, sufficiently apprises the EEOC of the alleged discriminatory parties and acts, the right to bring a civil action against parties not actually named should not be forfeited). Notice to the Board of Directors was notice to its individual members. See Skyers v. Port Authority of N.Y. and N.J., 431 F. Supp. 79 (S.D.N.Y.1976) (holding that an EEOC employment discrimination complaint naming the "Port Authority" was adequate notification to the Port Authority's twelve commissioners who were responsible for management and employment decisions); Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177 (D.C.Cir.1974); Chastang v. Flynn and Emrich Co., 365 F. Supp. 957, 961-64 (D.Md.1973), aff'd in part and rev'd in part on other grounds, 541 F.2d 1040 (4th Cir. 1976); Kelly v. Richland School District 2, 463 F. Supp. 216 (D.S.C. 1978).
Moreover, the plaintiff has alleged that counsel for Board of Directors' member James Gallagher, Jr., did have some communication with the EEOC in regard to the plaintiff's charge. The defendants, including Mr. Gallagher, and other members of the Board of Directors, have not asserted that they received no actual notice of the plaintiff's EEOC complaint, that their interests were in any way prejudiced by the plaintiff's failure to name them individually in his EEOC charge, or that their relationship with the Hospital was not so close as to have encouraged the plaintiff to have regarded them as substantially the same entity. See Glus, supra, 562 F.2d at 888; Vanguard, supra, 471 F. Supp. at 688-9; Chastang, supra, 365 F. Supp. at 964.
Accordingly, I decline to dismiss Mr. Gallagher and the Hospital's Board of Directors as defendants in this case. To do so would deprive the plaintiff of a forum for his cause of action against Holy Redeemer's Board of Directors without furthering the intended goals embodied in Title VII.
Although the plaintiff has alleged in this court that Dr. Goldberg was acting as an agent of the Hospital, Dr. Goldberg was not in any way identified to the EEOC in the plaintiff's EEOC complaint. Thus, the above analysis does not apply to grant this court jurisdiction over Dr. Goldberg with respect to plaintiff's Title VII claims.
V. THE PENDENT STATE CLAIMS
The plaintiff claims that the defendants' failure to grant him staff privileges violated the antitrust laws of Pennsylvania. The plaintiff further alleges that the defendants' conduct in denying him such privileges violated his common law tort and contract rights.
The defendants claim that the plaintiff's state claims are barred by Pennsylvania's Peer Review Protection Act, Pa.Stat.Ann. 63 § 425.2 et seq (Purdon 1981-82), and that the plaintiff's amended complaint fails to state a cause of action based on state law for which relief can be granted by this court.
I find it unnecessary at this time to consider whether, and to what extent, the Peer Review Protection Act controls the plaintiff's claim since the amended complaint fails to allege specifically what conduct of the defendants contravened Pennsylvania law.
Neither has the plaintiff's claim identified what specific tort, contract, or Pennsylvania antitrust theories it relies upon.
Therefore, I find it necessary to dismiss this vague claim for a second time, this time with prejudice.
For the reasons set forth in the accompanying Opinion, it is hereby ORDERED THAT:
1. Plaintiff's Sherman Act § 1 claim is DISMISSED with prejudice;
2. Plaintiff's claim based on 42 U.S.C. § 1983 is DISMISSED with prejudice;
3. Plaintiff's claim based on 42 U.S.C. § 1985(3) is DISMISSED with prejudice;
4. The defendants' motion to dismiss with prejudice the plaintiff's claim based on Title VII of the Civil Rights Act of 1964 is DENIED as to defendants Holy Redeemer Hospital and James Gallagher, et al., and GRANTED with respect to defendant Richard Goldberg.
5. The plaintiff's claims based on Pennsylvania statutory and common law are DISMISSED with prejudice.