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Doe v. Mercy Catholic Medical Center

United States Court of Appeals, Third Circuit

March 7, 2017

JANE DOE, Appellant

          Argued December 6, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-02085) District Judge: Honorable Michael M. Baylson

          Joshua S. Boyette [ARGUED] Swartz Swidler Counsel for Appellant.

          Vanita Gupta, Principal Deputy Assistant Attorney General Sharon M. McGowan Christine A. Monta [ARGUED] United States Department of Justice Civil Rights Division, Appellate Section P.O. Counsel for Amicus Appellant, United States of America.

          Darren M. Creasy A. James Johnston Andrea M. Kirshenbaum Kate A. Kleba Robin L. Nagele [ARGUED] Post & Schell Counsel for Appellee.

          Philip H. Lebowitz Duane Morris Counsel for Amicus Appellee, Hospital & Healthsystem Association of Pennsylvania.

          Before: FISHER, [*] KRAUSE and MELLOY, [**] Circuit Judges.


          FISHER, Circuit Judge.

         Medical residencies are a vital component of American medical education. McKeesport Hosp. v. ACGME, 24 F.3d 519, 525 (3d Cir. 1994). They provide new doctors a supervised transition between the pure academics of medical school and the realities of practice. Generally they do so successfully: Our nation's residency programs reliably produce some of the "finest physicians and medical researchers in the world." 15 U.S.C. § 37b(a)(1)(A). But as this case shows, these programs aren't exempt from charges of sex discrimination. Here we must decide whether an ex-resident, proceeding anonymously as Jane Doe, can bring private causes of action for sex discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., against Mercy Catholic Medical Center, a private teaching hospital operating a residency program. The District Court held she cannot and dismissed her complaint in its entirety. We will affirm in part and reverse in part that order. Doe's Title IX retaliation and quid pro quo claims endure. Her Title IX hostile environment claim is, however, time-barred.


         We recount the facts as Doe alleged them, accepting them as true. Davis v. Wells Fargo, 824 F.3d 333, 338 n.2 (3d Cir. 2016); see App. 100-24.

         Graduate medical education, or residency education, is a period of didactic and clinical instruction in a medical specialty during which physicians prepare for independent practice after graduating from medical school. Residency programs are typically accredited. Leading on that front is the Accreditation Council for Graduate Medical Education, or ACGME, which aims to improve healthcare by assessing and advancing the quality of residents' educations. Its reach is far and its influence wide. During the 2013-14 academic year, around 9, 600 ACGME-accredited programs operated in about 700 institutions, enrolling over 120, 000 residents and fellows in 130 medical specialties. The ACGME calls these programs structured educational experiences, and completing one generally results in eligibility for board certification.

         Predictably, residency programs are expensive to run. The Association of American Medical Colleges says it costs a hospital about $152, 000 a year to train a single resident. But the federal government helps with funding by way of direct and indirect graduate medical education payments through Medicare.

         Our case is about a residency program at Mercy, a private teaching hospital in Philadelphia that accepts Medicare payments and is affiliated with Drexel University's College of Medicine. Owing to its commitment to medical education, Mercy offers four ACGME-accredited residency programs in internal medicine, diagnostic radiology, general surgery, and a transitional year residency, in addition to providing the clinical bases for Drexel Medicine's emergency medicine residency.

         Under a residency agreement, Doe joined Mercy's diagnostic radiology residency program in 2011 as a second-year, or R2. The program offered training in all radiology subspecialties in a community-hospital setting combining hands-on experience with didactic teaching. As required, Doe attended daily morning lectures presented by faculty and afternoon case presentations given by residents under faculty or attending physicians' supervision. She took a mandatory physics class taught on Drexel's campus, attended monthly radiology lectures and society meetings, joined in interdepartmental conferences, and sat for annual examinations to assess her progress and competence.

         Doe says the director of Mercy's residency program, whom she calls Dr. James Roe, sexually harassed her and retaliated against her for complaining about his behavior, resulting in her eventual dismissal. Early on, Dr. Roe inquired about her personal life and learned she was living apart from her husband. He found opportunities to see and speak with her more than would otherwise be expected, often looking at her suggestively. This made Doe uncomfortable, especially when the two were alone. From these interactions she surmised Dr. Roe was sexually attracted to her and wished to pursue a relationship, though they both were married.

         Three months into her residency Doe sent Dr. Roe an email voicing concern that others knew about his interest in her. She wanted their relationship to remain professional, she said, but Dr. Roe persisted, stating he wanted to meet with her while they attended a conference in Chicago. She replied with text messages to clear the air that she didn't want to pursue a relationship with him. Apparently displeased, Dr. Roe reported these messages to Mercy's human resources department, or HR. In response, HR called Doe to a meeting where she described Dr. Roe's conduct, like how he'd touched her hand at work, and said his unwelcome sexual attention was negatively affecting her training. The next day HR referred Doe to a psychiatrist, noting that her attendance was optional. Doe, however, believed Mercy would use it against her if she didn't go, given her complaints against Dr. Roe. She thus attended three sessions and complained there about Dr. Roe's conduct, but she heard nothing more from HR. Later Dr. Roe apologized to Doe for reporting her. He did it, he said, for fear he'd be reprimanded for having an inappropriate relationship with her. Thereafter two male faculty members, both close with Dr. Roe, trained her significantly less than they had before.

         In Fall 2012 Dr. Roe learned Doe was getting divorced. His overtures intensified. He too was getting divorced, he told her, and he wanted a relationship with her. He suggested they go shooting and travel together. He said he was uncomfortable with her going to dinner for fellowship interviews and unhappy about her leaving Philadelphia post-residency. During this time Doe asked Dr. Roe and another faculty member for fellowship recommendation letters. They agreed but wrote short, cursory, and perfunctory ones. Dr. Roe even told the fellowship's director that Doe was a poor candidate. When Doe called Dr. Roe to ask why, he said it was to teach her a lesson before hanging up on her.

         In response to Doe's complaints about Dr. Roe, Mercy's vice president, Dr. Arnold Eiser, called Doe to a meeting with Dr. Roe and others. There Doe complained about Dr. Roe's conduct again but was told to wait outside. A short time later Dr. Eiser escorted her to Mercy's psychiatrist. As they walked Dr. Eiser told Doe her second in-service examination score was poor, an issue she needed to address. Later, however, Doe learned this wasn't true: Her score was in the 70th percentile, and Dr. Eiser had received misinformation. She asked Dr. Roe to report her improvement to the fellowship she'd applied to, but he refused. Mercy later told Doe that to remain in the program, she'd have to agree to a corrective plan. Reluctantly, she signed on.

         Dr. Roe's conduct continued into Spring 2013. Once while Doe was sitting alone with Dr. Roe at a computer reviewing radiology reports, he reached across her body and placed his hand on hers to control the mouse, pressing his arm against her breasts in the process. She pushed herself back in her chair, stood up, and protested. Another time, when a physician expressed interest in Doe, Dr. Roe became jealous and told Doe she shouldn't date him. Later, in April 2013 Dr. Roe told another resident to remove Doe's name as coauthor from a research paper she'd contributed to. Doe complained, but Dr. Roe said she was acting unprofessionally and ordered her to another meeting with Dr. Eiser. At that meeting Doe again told Dr. Eiser about Dr. Roe's conduct over the past year. Dr. Eiser, however, said the other residents loved Dr. Roe and told her to apologize to him. She did, but Dr. Roe wouldn't accept it, calling it insincere. Dr. Eiser suspended Doe, recommending another visit to the psychiatrist.

         Thereafter on April 20, 2013 Doe received a letter from Mercy stating she'd been terminated but could appeal. She appeared before an appeals committee four days later where she described Dr. Roe's behavior. Dr. Roe appeared there too advocating for her dismissal. He did so, she says, because she'd rejected his advances. The committee upheld Doe's dismissal, giving her five days to bring another appeal. She declined and quit the program, with Mercy accepting her resignation. Since then, no other residency program has accepted her, blocking her from full licensure.

         Doe sued Mercy in the District Court on April 20, 2015, exactly two years after she learned she'd been dismissed. Seeking damages and equitable relief, she alleges six claims, three under Title IX - retaliation, quid pro quo, and hostile environment - and three under Pennsylvania law - contract-based sex discrimination, wrongful termination, and breach of the covenant of good faith and fair dealing. She concedes she never filed a charge with the Equal Employment Opportunity Commission, or EEOC, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

         Ultimately the District Court dismissed the third iteration of Doe's complaint under Federal Rule of Civil Procedure 12(b)(6). Title IX doesn't apply to Mercy, the court held, because it's not an "education program or activity" under 20 U.S.C. § 1681(a). Even if Title IX did apply, it stated, Doe can't use Title IX to "circumvent" Title VII's administrative requirements, as Congress intended Title VII as the "exclusive avenue for relief" for employment discrimination. 158 F.Supp.3d 256, 261 (E.D. Pa. 2016). The court also found Doe's hostile environment claim untimely. Having dismissed all Doe's Title IX claims, the court declined jurisdiction of her state law claims. Doe timely appealed.


         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we have it under 28 U.S.C. § 1291. We exercise plenary review of a Rule 12(b)(6) dismissal, In re Asbestos Products Liability Litigation (No. VI), 822 F.3d 125, 131 (3d Cir. 2016), affirming if the plaintiff failed to allege plausible claims, see Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009).


         Our analysis is threefold. We address whether Title IX applies to Mercy, whether Doe's private causes of action are cognizable under Title IX, and what to do about Doe's state law claims. Title IX's applicability to Mercy is first.


         We start, of course, with Title IX's language, North Haven Board of Education v. Bell, 456 U.S. 512, 520 (1982), which says, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, " 20 U.S.C. § 1681(a) (emphasis added). We must decide, then, if Mercy's operation of a residency program makes it an "education program or activity" under Title IX.

         We note this question of first impression reaches far beyond one ex-resident's private lawsuit. It touches on the Executive's very power to address gender discrimination in residency programs under existing federal law. Congress enacted Title IX under its Spending Clause powers, making it in the nature of a contract: In accepting federal funds, States agree to comply with its mandate. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 181-82 (2005). Given its origins, Title IX's only (express) enforcement mechanism is through agencies' regulation of federal funding. Congress directs agencies to effectuate § 1681(a) by, among other means, the "termination of or refusal to grant or to continue" funding to education programs. 20 U.S.C. § 1682; see Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). Today this directive applies afar: Twenty-one federal agencies currently enforce Title IX. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 65 Fed. Reg. 52, 858 (Aug. 30, 2000) [hereinafter Title IX Common Rule] (codified in various sections of the Code of Federal Regulations). And no other federal statute empowers agencies to restrict funding from education programs engaging in sex discrimination. Title VI bars only race, color, and national origin discrimination, not sex discrimination. 42 U.S.C. § 2000d; see Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998). Title VII is rooted in the Commerce Clause and § 5 of the Fourteenth Amendment, not the Spending Clause. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 367 (1978) (Brennan, White, Marshall, & ...

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