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MORRISON v. AMERICAN BD. OF PSYCHIATRY & NEUROLOGY

January 4, 1996

FRANCINE D. MORRISON, Plaintiff,
v.
AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY, INC., Defendant.



The opinion of the court was delivered by: SHADUR

 Francine Morrison ("Morrison") has sued the American Board of Psychiatry and Neurology, Inc. ("Board"), alleging that Board discriminated against her on racial grounds (she is African-American). Morrison's Complaint contains two counts: Count I under Title VII of the Civil Rights Act of 1964 as amended ("Title VII," 42 U.S.C. § 2000e to 2000e-17 *fn1" ), and Count II by way of 28 U.S.C. § 1981 ("Section 1981").

 Board now moves to dismiss both counts under Fed. R. Civ. P. ("Rule") 12(b)(6). *fn2" For the reasons stated in this memorandum opinion and order, Board's motion is denied in its entirety.

 Facts3

 Morrison is an African-American psychiatrist who is employed by two medical facilities in New Orleans (Complaint P3). As for Board, Complaint P4 describes it in these terms:

 
Defendant, AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY...constructs, administers, and evaluates the only examinations for board certification in psychiatry in the United States, and as such, the Board controls a psychiatrist's eligibility for employment and staff privileges at many hospitals and other health organizations.

 Complaint P16 sets out a number of consequences of Board noncertification that Morrison's Mem. 14 summarizes by saying that Board certification "is a large, if not the primary factor which patients consider and many hospitals require in choosing or hiring a physician."

 Board certification begins with a full-day written exam that an applicant must pass as a prerequisite to taking an oral examination (Complaint P7). If successful, applicants move on to the oral portion of the exam, comprising a "video" portion and a "live patient" portion that must be passed during the same testing period (id. PP8-11). *fn4"

 In 1992 Morrison passed the written portion of the exam (Complaint P7) but failed both portions of the oral examination (id. P8). Then in April 1993 Morrison tried once again, this time passing the live patient portion of the oral exam but failing the video portion (id. PP9-11). Morrison says that both of the examiners for that video portion were white males (id. P9) and that a white female who made the same differential diagnosis as Morrison on the video portion received Board certification though Morrison did not (id. P10).

 Morrison took the oral exam again in October 1993. On that occasion she passed the video portion but failed the live patient portion (Complaint PP13-14). Both of the live patient segment examiners were white, one male and one female (id. P13), while the video portion examiners were an Asian male and a white female (id. P14).

 Morrison alleges that Board's discriminatory denial of certification has caused her to suffer economic harm in a number of ways (Complaint P16):

 
1. She will not be considered (in New Orleans, elsewhere in Louisiana or in the United States generally) for employment in hospitals and other health organizations, or for participation in HMOs, that require psychiatrists to be Board certified.
 
2. Her salary with her current employer is lower than it would have been if she had become Board certified.
 
3. Her lack of Board certification brings her expertise into question from current and future employers as well as potential private-practice patients.

 Title VII Claim

 Morrison's Title VII claim is not a mainstream Title VII claim because she does not--and could not--allege that Board is her employer. Instead she relies on a theory--one that originated in Sibley Memorial Hosp. v. Wilson, 160 U.S. App. D.C. 14, 488 F.2d 1338 (D.C. Cir. 1973) and was later adopted by our Court of Appeals in Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986)--that extends Title VII liability beyond a direct employment relationship to "employers" *fn5" who are in a position to interfere with the employment relationship between the Title VII plaintiff and some third party.

 Sibley and Doe teach that an employer can be held liable under Title VII if it discriminatorily exploits its power over an individual to interfere with that individual's employment by a third party. In so holding, both cases relied on the facts (1) that Section 2000e-2(a) does not describe the Title VII plaintiff as an "employee," instead using the broader term "any individual," and (2) that the Supreme Court has repeatedly pointed out that Congress' broad purpose in enacting Title VII was "to achieve equality of employment opportunities" ( Griggs v. Duke Power Co., 401 U.S. 424, 429, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971)).

 Virtually every case that applies the Sibley theory (including Doe) specifically points to the following basis on which Sibley, 488 F.2d at 1341 justified such extension of Title ...


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