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MOIRE v. TEMPLE UNIV. SCH. OF MED.

June 18, 1985

LAURA KLAWITTER MOIRE
v.
TEMPLE UNIVERSITY SCHOOL OF MEDICINE and LOREN H. CRABTREE, JR., M.D.



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 INTRODUCTION

 Plaintiff Laura Klawitter, a medical school student at Temple University School of Medicine ("Temple") from February, 1977 to May 18, 1982 (now Dr. Laura Klawitter Moire), commenced this civil rights action against Temple and Loren H. Crabtree, Jr., M.D. ("Dr. Crabtree") on July 6, 1982, following her graduation from Temple. Dr. Crabtree was Director of Medical Education, Supervisor of the Clerkship Program, and Medical Director of the Young Adult Program at Horsham Clinic ("Horsham"). While in her third year (1979-80), plaintiff failed her psychiatric clerkship at Horsham. As a result of this and other failing or "conditional" grades, plaintiff failed to qualify for promotion to fourth-year status, unless and until she repeated her third year at Temple.

 Challenging her psychiatric clerkship grade only, plaintiff alleged that the defendants illegally conspired against her and failed her because of her sex, in violation of 42 U.S.C. §§ 1983 and 1985 and 20 U.S.C. § 1681 (Title IX). She charged that Dr. Crabtree subjected her to sexual harassment and that his Horsham colleagues and Temple faculty members sought to protect him. Plaintiff also asserted that Temple administrators violated her Fourteenth Amendment right to due process by failing to investigate or remedy her timely complaints appropriately.

 The court finds no credible evidence that Dr. Crabtree made improper sexual advances to plaintiff, nor that he and other members of the Horsham and Temple faculties conspired to discriminate illegally against her on the basis of her sex. The court also finds that Temple's decision to require plaintiff to repeat her third year was made after a careful and deliberate process that informed her of the proceedings and afforded repeated and meaningful opportunities for her to challenge the decision. This memorandum constitutes the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

 FINDINGS OF FACT

 Prior to trial, the parties stipulated to the following facts:

 Plaintiff, a female, was enrolled at Temple from February, 1977 through May, 1982; in November, 1979, she was a third-year medical student.

 During the academic year 1979-80, Dr. Crabtree's duties included supervision of Horsham's psychiatry clerkship program for third-year Temple medical students. Two other Temple medical students, Jack Ludmir and Lori Bennett, served psychiatry clerkships at Horsham with plaintiff. At a meeting on November 28, 1979 among Dr. Crabtree, plaintiff, Jack Ludmir and Lori Bennett, Dr. Crabtree explained that there were three clinical team assignments for medical students: Young Adult Program, Adult Program, and Substance Abuse Program. Plaintiff selected the Young Adult Program (of which Dr. Crabtree was Medical Director) and the other students selected other programs.

 Plaintiff spent the first four weeks of her Horsham psychiatry clerkship in the Young Adult Program. Barbara Cram, Ph.D., the Clinical Coordinator of the Young Adult Program, was plaintiff's immediate supervisor.

 In addition to the clinical team assignment, Horsham's psychiatry clerkship program for third-year Temple medical students included the following activities:

 
(a) Preception -- The medical students met with physician preceptors who discussed diagnosis, interview skills, and other issues in psychiatry. There were three preceptors during plaintiff's clerkship: N. Craig Baumm, M.D., Sandra Bloom, M.D., and Paul Weir, M.D. The three medical students were scheduled to meet as a group with each preceptor once a week.
 
(b) Continuous Case -- Dr. Crabtree met with the medical students as a group once a week. The students observed Dr. Crabtree in session with a patient; after the patient left, Dr. Crabtree and the students discussed what had occurred.
 
(c) Seminar -- Ivan Cohen, M.D., Medical Director of the Substance Abuse and Adult Programs and Administrative Director of the Adult Building, met with the medical students as a group once a week to discuss issues related to psychopharmacology.
 
(d) Special Lectures -- Various Horsham staff members lectured to the medical students as a group.

 At some point between December 3, 1979 and December 7, 1979, Dr. Crabtree asked plaintiff to meet with him ("first private discussion"). The first private discussion took place in Dr. Crabtree's office on the second floor of the Manor House at Horsham. Dr. Crabtree and plaintiff had a second private discussion the day after the first private discussion. Dr. Crabtree and plaintiff had a third private discussion during the first three weeks of plaintiff's psychiatry clerkship at Horsham. Dr. Crabtree and plaintiff had a fourth private discussion concerning plaintiff's request to transfer to the Substance Abuse Program.

 Plaintiff was transferred from the Young Adult Program to the Substance Abuse Program for the last two weeks of her Horsham psychiatry clerkship; Ms. Isla Zeh was then the Clinical Coordinator of the Substance Abuse Program and plaintiff's immediate supervisor.

 Within the first three full weeks of plaintiff's psychiatry clerkship at Horsham, plaintiff requested and had two meetings with Dr. Cristol concerning her problems there. Plaintiff received a failing grade for her psychiatry clerkship at Horsham and a failing grade in Psychiatry. In April, 1980, following receipt of this failing grade, plaintiff met with Dr. Cristol to discuss it. In April, 1980, plaintiff also met with Hugo D. Smith, M.D., Associate Dean for Curriculum at Temple, to discuss her grade.

 On June 26, 1980, the Temple Student Promotions Committee met and, inter alia, reviewed plaintiff's promotion. The Temple Student Promotions Committee recommended that plaintiff repeat her third year at Temple. On June 27, 1980, Associate Dean Smith spoke with plaintiff on the telephone, informed her that the Temple Student Promotions Committee had met, and reported the Committee's recommendation to her. On June 30, 1980, Associate Dean Smith met with plaintiff and discussed, inter alia, the June 26, 1980 Temple Student Promotions Committee meeting and recommendation and the scheduled July 2, 1980 Temple Executive Faculty meeting.

 Plaintiff prepared and submitted a written statement to the Temple Executive Faculty for its July 2, 1980 meeting. On July 2, 1980, the Temple Executive Faculty met and returned plaintiff's case to the Temple Student Promotions Committee. Between July 2, 1980 and July 7, 1980, Associate Dean Smith met with plaintiff and discussed, inter alia, the outcome of the July 2, 1980 Temple Executive Faculty meeting and the scheduled July 7, 1980 Temple Student Promotions Committee meeting.

 On July 7, 1980, the Temple Student Promotions Committee met again. Plaintiff and her chosen advocate, Dr. Batra, were present and participated in this meeting. The Temple Student Promotions Committee recommended that plaintiff be required to repeat her third year on probation. Between July 7, 1980 and July 9, 1980, Associate Dean Smith met with plaintiff and discussed, inter alia, the July 7, 1980 Temple Student Promotions Committee meeting and the scheduled July 9, 1980 Temple Executive Faculty meeting.

 Between July 2, 1980 and July 9, 1980, Leo M. Henikoff, M.D., Dean of Temple, met with plaintiff and discussed the scheduled July 9, 1980 Temple Executive Faculty meeting. Plaintiff prepared and submitted a written statement to the Temple Executive Faculty prior to this meeting. On July 9, 1980, the Temple Executive Faculty met and, inter alia, considered the Temple Student Promotions Committee's recommendation relating to plaintiff.

 On July 9, 1980, the Temple Executive Faculty approved the Temple Student Promotions Committee's July 7, 1980 recommendation. On July 10, 1980, Associate Dean Smith verbally informed plaintiff of the Temple Executive Faculty's decision, and on July 11, 1980, he wrote plaintiff informing her of the Temple Executive Faculty's decision and of her right to appeal that decision to Dean Henikoff. On July 15, 1980, plaintiff submitted a written appeal of her Psychiatry grade to Dean Henikoff. Dean Henikoff appointed an Ad Hoc Appeals Committee, which conducted hearings. The Ad Hoc Appeals Committee consisted of the following persons: William P. Barba, II, M.D. (Chairman); Joseph H. Baum, Ph.D.; Mary L. Cote, M.D.; Charles Shagass, M.D.; and Ethel Weinberg, M.D.

 Plaintiff retained Alan Lerner, Esquire, and Jeffrey I. Pasek, Esquire, as legal counsel in connection with her appeal. Plaintiff and her attorneys met with Dr. Barba before the first meeting of the Ad Hoc Appeals Committee to discuss, inter alia, the procedures of the Ad Hoc Appeals Committee. Plaintiff submitted a written statement to the Ad Hoc Appeals Committee.

 The Ad Hoc Appeals Committee held meetings on August 4, 7, 13, and 14, 1980, at which plaintiff was present for all or part of the time. During its August 4, 1980 meeting, the Ad Hoc Appeals Committee and plaintiff and her counsel met with Dr. Benson and Anthony Panzetta, M.D., Chairman of the Department of Psychiatry at Temple. During its August 7, 1980 meeting, the Ad Hoc Appeals Committee, plaintiff and her counsel met with Drs. Cohen and Crabtree of Horsham. During its August 13, 1980 meeting, the Ad Hoc Appeals Committee, plaintiff and her counsel met with Drs. Cohen, Crabtree, Cram, and Etemad, Messrs. Donahue and Tremblay, and Ms. Zeh of Horsham, and Horsham's counsel. During its August 14, 1980 meeting, the Ad Hoc Appeals Committee, plaintiff and her counsel met with Associate Dean Smith.

 The Ad Hoc Appeals Committee prepared a written report to Dean Henikoff dated August 14, 1980; the report recommended that plaintiff be failed in Psychiatry and required to repeat the third year. Plaintiff presented her grievances to Dean Henikoff during one or more meetings with him, and supplied him with additional materials for his review. On September 2, 1980, Dean Henikoff wrote plaintiff that he had decided to deny her appeal to change her Psychiatry grade and that plaintiff would be required to repeat the third year of medical school at Temple.

 On October 3, 1980, plaintiff filed a complaint with the Office of Civil Rights of the United States Department of Education ("OCR"). In her complaint to the OCR, plaintiff alleged that she had been subjected to sexual harassment by Dr. Crabtree, Horsham, and Temple, as a result of which she was given a failing grade in her psychiatry clerkship and not promoted to the fourth year of Temple medical school. Plaintiff's complaint to the OCR was filed by her then legal counsel, Alan Lerner, Esquire, and Jeffrey I. Pasek, Esquire. According to its files, the OCR interviewed the following persons: plaintiff; Drs. Barba, Benson, Cohen, Crabtree, Cram, Cristol, Etemad, Panzetta, Smith and Weinberg; Messrs. Donahue and Tremblay; and Ms. Zeh. The OCR concluded that there was no evidence of violation of Title IX.

 During her fourth year at Temple medical school, the academic year 1981-82, plaintiff participated in the National Resident Matching Program ("NRMP"). The NRMP matches fourth-year medical students with residency programs. The list of residency programs plaintiff submitted to the NRMP ranked Graduate Hospital as her first choice. Plaintiff was matched by the NRMP with a residency program in internal medicine at Graduate Hospital. Graduate Hospital is a respected institution for the training of residents in internal medicine. Plaintiff began the residency program in internal medicine at Graduate Hospital in June, 1982, after her graduation from Temple.

 DISCUSSION

 The material issues are:

 Whether Dr. Crabtree sexually harassed plaintiff or sanctioned a harassing environment at Horsham and whether Temple conspired with Horsham to discriminate against Plaintiff on the basis of her sex;

 Whether Horsham's failure to give plaintiff a passing grade was arbitrary and capricious and in retaliation for her complaint to Temple officials and whether Temple's acceptance of Horsham's grade was arbitrary and capricious;

 Whether Temple's decision to require plaintiff to repeat the third year at her own expense violated her constitutional rights to due process of law under the Fourteenth Amendment;

 Whether Temple is liable for breach of contract and whether either or both defendants are liable for intentional infliction of emotional distress.

 Plaintiff alleged that Dr. Crabtree's conduct toward her created a sexually harassing, discriminatory atmosphere at Horsham and that Horsham and Temple officials conspired to maintain such an environment in violation of her rights under the Fourteenth Amendment, 42 U.S.C. §§ 1983 and 1985, and Title IX (20 U.S.C. § 1681).

 Under § 1983, any person or corporation acting under color of state law subjecting or causing any citizen to be deprived of any rights secured by the Constitution or laws of the United States is liable in damages to such citizen. Plaintiff's alleged deprivation is an unlawful loss of whatever Fourteenth Amendment liberty or property interest she might have in her timely promotion. Temple's actions have been held to constitute state action for purposes of 42 U.S.C. § 1983. See University of Pittsburgh v. Krynicky, 742 F.2d 94 (3d Cir. 1984), cert. denied, 471 U.S. 1015, 105 S. Ct. 2018, 85 L. Ed. 2d 300 (1985). However, Dr. Crabtree was employed solely by Horsham, a private clinic, that admittedly received no federal funds, so neither he nor any Horsham employees were acting under color of state law. But if a private party acts in conspiracy with a state actor, he can be held liable under § 1983. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Therefore, Dr. Crabtree's conduct may be actionable under § 1983 if but only if he conspired and acted jointly with Temple.

 The success of plaintiff's § 1985(3) claim must be dependent upon the success of her underlying § 1983 claim. Section 1985(3) is restricted to conspiracies for the purpose of depriving any person or class of persons of their right to equal protection of the laws and requires that a conspiracy be motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). However, § 1985(3) provides no substantive rights; "it merely provides a remedy for violation of the rights it designates." Great American Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979).

 Title IX (20 U.S.C. § 1681) prohibits sex discrimination in any educational program or activity receiving federal funds. Grove City College v. Bell, 465 U.S. 555, 79 L. Ed. 2d 516, 104 S. Ct. 1211 (1984). Since Horsham and Dr. Crabtree received no federal funds, Dr. Crabtree cannot be held liable under Title IX. *fn1" Temple might be liable under Title IX to the extent it condoned or ratified any invidiously discriminatory conduct of Dr. Crabtree or Horsham.

 Plaintiff claims she was subjected to unlawful sex discrimination because she was sexually harassed at Horsham. Sexual harassment has been defined as "the unwanted imposition of sexual requirements in the context of a relationship of unequal power" such as employer and employee or professor and student. C. MacKinnon, Sexual Harassment of Working Women 1 (1979). Harassment of a student by tying academic advancement to submission to sexual pressures constitutes sex discrimination in education, see Alexander v. Yale University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff'd, 631 F.2d 178 (2d Cir. 1980), because such treatment demeans and degrades women.

 Two forms of sexual harassment are often recognized: quid pro quo and abusive environment. Quid pro quo harassment occurs where specific academic or employment benefits are withheld as a means of coercing sexual favors. Harassment from abusive environment occurs where multiple incidents of offensive conduct lead to an environment violative of a victim's civil rights. *fn2" Here there is no allegation of quid pro quo harassment; plaintiff never accused Dr. Crabtree of attempting physical contact, soliciting sexual intimacies or threatening her with failure in order to obtain sexual favors. The issue is whether plaintiff because of her sex was in a harassing or abusive environment at Horsham with Temple's tacit or explicit consent.

 It is undisputed that almost from the moment plaintiff began her psychiatric clerkship at Horsham, its staff was concerned about the appropriateness of her behavior. In plaintiff's first contact with the Young Adult Program, she attempted to convert an exercise in which a patient was to interview plaintiff into an interview by plaintiff of that patient. Early in her clerkship, plaintiff made what Horsham staff members regarded as unsuitable remarks at several sessions, including a psychodrama, staff rounds, and a community meeting. For example, at the Young Adult Program's community meeting, the patients argued about whether to watch football on television. Although the meeting was to encourage patients to work out their disagreements and develop the ability to self-govern, plaintiff ...


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