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Medical resident dismissed after reporting director’s advances revives quid pro quo, retaliation claims under Title IX

By Marjorie Johnson, J.D.

The Third Circuit revived a former medical resident’s quid pro quo harassment and retaliation claims brought under Title IX of the Education Amendments of 1972 against a private teaching hospital that operated the residency program from which she was dismissed after complaining about the director’s sexual advances. She plausibly alleged that the residency program was a federally funded “education program or activity” under Title IX since its mission was at least in part educational, and her claims were not barred by Title VII’s concurrent applicability. However, dismissal of her time-barred hostile environment claim was affirmed (Doe v. Mercy Catholic Medical Center, March 7, 2017, Fisher, D.).

Harassed and dismissed. The resident claimed that she was sexually harassed by the director of the residency program run by Mercy Catholic Medical Center, and that he also retaliated against her for complaining about his behavior, resulting in her eventual dismissal. She did not file an EEOC charge, but instead brought the instant action against Mercy exactly two years after learning of her dismissal.

Lawsuit dismissed. The district court dismissed all of her claims, ruling that Title IX didn’t apply to Mercy because it’s not an “education program or activity” under Title IX and that even if it were, she couldn’t use Title IX to “circumvent” Title VII’s administrative requirements, which Congress intended to be the “exclusive avenue for relief” for employment discrimination. The court also found her HWE was untimely and declined jurisdiction of her state law claims.

Was Title IX applicable to Mercy? Whether Title IX was applicable to Mercy turned on its language, which stated: “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.” Crucially, the district court held that Mercy’s operation of a residency program did not make it an “education program or activity.” But after an exhaustive discussion of the legislative history of Title IX and the Civil Rights Restoration Act of 1987 (CRRA), and in consideration of applicable Supreme Court decisions, the Third Circuit disagreed.

The Third Circuit squarely rejected the hospital’s assertion that Title IX applied only to private entities “principally engaged in the business of providing education” but instead, following the lead of the Second Circuit, held that an entity was an “education program or activity” covered by Title IX if it had “features such that one could reasonably consider its mission to be, at least in part, educational.” Such features included: whether the program was “incrementally structured” through a particular course of study or training; whether it allowed participants to earn a degree, qualify for a certification or certification examination, or pursue a specific occupation or trade; whether it provided instructors, exams, an evaluation process or grades, or accepted tuition; or whether entities accrediting or otherwise regulating a program held it out as educational.

Residence program “education program.” Applying these principals, the Third Circuit found that Mercy’s residence program was plausibly an “education program or activity” under Title IX since the resident sufficiently alleged that it was a private organization principally engaged in the business of providing healthcare, whose operation of an accredited residency program made its mission, at least in part, educational. Notably, she claimed that she was enrolled in a “multiyear regulated program of study and training in diagnostic radiology” at Mercy, which required her to train under faculty members and physicians, attend lectures and present supervised case presentations, participate in a physics class on a university campus, and take annual exams. Had she completed the program, she would have been eligible for board certification exams and to practice for six years.

Cognizable claim? The resident’s private claims of retaliation and quid pro quo were also cognizable under Title IX pursuant to the Supreme Court’s decision in Cannon v. University of Chicago, which held that Title IX implies a cause of action for private litigants. Though she was arguably Mercy’s “employee,” and thus could have pursued Title VII claims, the lower court erred in determining that Title VII’s concurrent applicability barred her Title IX claims.

Retaliation and quid pro claims revived. Accordingly, the appeals court vacated dismissal of the resident’s retaliation and quid pro claims and sent them back to the district court for further consideration utilizing Title VII’s evidentiary frameworks. These claims were timely under Title IX’s insofar as she alleged retaliatory or quid pro quo conduct that occurred within the two-year limitations period. On her current pleadings, only two incidents fell within this timeframe—Mercy’s letter notifying her of its decision to dismiss her and the director’s advocating for her dismissal at her appeal hearing four days later.

HWE claim time-barred. The Third Circuit declined to decide whether Title VII’s applicability rendered the resident’s Title IX hostile work environment claim inviable since, even if Title VII didn’t preclude it, the district court properly determined that it was time-barred. Though she argued that her dismissal and the director’s appearance at her appeal hearing triggered the continuing-violation doctrine recognized under Title VII, the appeals court disagreed. Rather, Mercy’s decision to dismiss her was a discrete act actionable on its own as retaliation or quid pro quo harassment, but could not simultaneously support a hostile environment claim. As for her appeal hearing, the resident alleged only that the director “advocated” for her dismissal and not that he made sexualized comments or touched her in a sexual way.