December 6, 2016
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
S. Boyette [ARGUED] Swartz Swidler Counsel for Appellant.
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.
M. Creasy A. James Johnston Andrea M. Kirshenbaum Kate A.
Kleba Robin L. Nagele [ARGUED] Post & Schell Counsel for
H. Lebowitz Duane Morris Counsel for Amicus Appellee,
Hospital & Healthsystem Association of Pennsylvania.
Before: FISHER, [*] KRAUSE and MELLOY, [**] Circuit Judges.
FISHER, Circuit Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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
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
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, & ...