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January 12, 1999


The opinion of the court was delivered by: Ambrose, District Judge.


Plaintiffs Bryan C. Donohue, M.D., and John Cava, M.D., conduct a medical practice in cardiology located in Washington, Pennsylvania. Donohue and Cava employ Plaintiff Christopher Allen, M.D., a black physician, who is certified in and specializes in internal medicine and cardiology, and who also holds a sub-specialty in interventional cardiology. The Plaintiffs filed a five-count Amended Complaint against Defendants The Washington Hospital ("the Hospital"), Telford W. Thomas, its President and CEO, John Frazier, M.D., a member of the Board of Trustees and a staff member, and Nell Hart, M.D., a staff member. Specifically, the Plaintiffs asserted violations of 42 U.S.C. § 1981 and antitrust statutes, as well as claims for breach of contract and interference with existing and prospective contractual relations. Essentially, the Plaintiffs claim that the Defendants acted in such a manner as to preclude the Plaintiffs from expanding their practice at the Hospital.

The Defendants previously filed a Motion to Dismiss, challenging each claim. By prior Opinion and Order, I denied the Motion in all respects save one. I dismissed Count III — insofar as it was premised upon a claim for interference with existing contractual relations.

Pending is the Defendants' Motion for Summary Judgment (Docket No. 35). The Defendants seek the entry of judgment in their favor on each of the remaining claims. The Plaintiffs oppose. After careful consideration, and for the reasons set forth below, the Motion is granted in part and denied in part. It is granted with respect to the claims set forth in Counts III (interference with a prospective contractual relation) and Count V (conspiracy to monopolize under § 2 of the Sherman Act). The Motion is denied, however, with respect to all remaining counts.


Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.


I. Count I — 42 U.S.C. § 1981

Allen contends that the Hospital's and Thomas' failure to provide him with an application for a staff position in internal medicine, and the resulting failure to hire him, constitutes a violation of 42 U.S.C. § 1981. Section 1981 provides:

  [a]ll persons within the jurisdiction of the United
  States shall have the same right in every State and
  Territory to make and enforce contracts, to sue, be
  parties, give evidence, and to the full and equal
  benefit of all laws and proceedings for the security
  of persons and property as is enjoyed by white
  citizens, and shall be subject to like punishment,
  pains, penalties, taxes, licenses, and exactions of
  every kind, and to no other.

42 U.S.C. § 1981. "Section 1981 [thus] grants to all persons equal rights under the law." Walker v. Comay, 640 F. Supp. 195, 197 (W.D.Pa. 1986).

Here, the Defendants do not dispute that Allen has articulated a prima facie case of discrimination under § 1981. Accordingly, under the familiar analysis announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the burden shifts to the Defendants to articulate some legitimate, nondiscriminatory reason for the challenged action. See Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 127 (3d Cir. 1990). The Defendants have met this burden by proffering evidence that Allen was denied an application because he was a trained cardiologist, that he worked with a group providing cardiology services, and that a Moratorium existed which precluded granting staff privileges to cardiologists.

Consequently, the burden shifts back to Allen to demonstrate that the articulated reason is merely a pretext for discrimination. Chauhan, 897 F.2d at 127. The Defendants argue that Allen cannot establish pretext. I disagree. The record reveals that Allen assured Thomas that, if given privileges, he intended only to practice internal medicine. See Plaintiffs' Appendix, Ex. 40. Yet Allen was denied privileges. However, Thomas and the Hospital accepted another physician's (Dr. Richard Hart-who is white) representation that he intended to practice only internal medicine. As with Allen, Hart's training was in an area covered by the Moratorium (infectious diseases). See Thomas Transcript, p. 137. I recognize that Hart's and Allen's positions differed in some regards.*fn1 Even so, I find the differences in treatment accorded the physicians to be telling.

Additionally, it does seem implausible that the Hospital would be concerned that, if it granted Allen staff privileges for internal medicine, that he would somehow secretly perform cardiology services. For Allen to do so, he would have to utilize the cardiology lab and/or an operating room. I agree with the Plaintiffs that the "notion that any internist could sneak a patient into a catheterization lab or operating room for a cardiology is ludicrous." See Plaintiffs' Brief, p. 20.

Furthermore, the Hospital's treatment of white pulmonologists is revealing. Two pulmonologists appalled for staff privileges in critical care medicine while a moratorium existed for pulmonology. The applications were accepted and processing began. Only after Allen's application was denied were the pulmonologists' applications and fees returned. While the Hospital contends that it was initially unaware that the physicians were pulmonologists (a specialty covered by the Moratorium), the record suggests otherwise. See Plaintiffs' Appendix, Ex. 50. A jury could reasonably infer that the applications and fees were returned only after the Hospital realized that it had treated a black applicant in a different manner.

Thus, for the reasons set forth above, Allen is entitled to proceed to trial. Consequently, the Defendants' Motion for Summary Judgment is denied in this regard.

II. Count IV — Antitrust Violations

In Count IV, the Plaintiffs allege that the Defendants have unlawfully restrained trade and have attempted to obtain a monopoly on cardiology services. The Defendants seek the entry of judgment, in their favor, on both claims, and advance ...

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