There is a scarcity of talented surgeons in Southern Illinois. In the case of Dunn v. Washington County Hospital and Thomas J. Coy, No. 65-1277 ___ F.3d ___ (7th Cir. 2005), Dr. Thomas J. Coy was apparently an economic engine of the Washington County Hospital. Though an independent surgeon on the medical staff he was in charge of the obstetrics and emergency services in the 59-bed county hospital in Nashville, Illinois. Lisa Dunn, a nurse formerly employed by the County Hospital, brought an action against the hospital alleging liability under Title VII of the Civil Rights Act of 1964, violation of Constitutional Rights (Equal Protection), and retaliation, among others, all arising out of the alleged conduct of Dr. Coy, who if the evidence is to be believed is no Gentleman. Ms. Dunn claimed that Dr. Coy made life miserable for she and other female nurses on the hospital’s payroll, while males experienced no similar problems.
The U.S. District Court dismissed the claims against the hospital because Dr. Coy was an independent member of the hospital’s medical staff and not subject to the hospital’s control. The court clearly adopted a tort view of the limits of vicarious liability. Unfortunately for the hospital, a Title VII action is not a tort claim and the responsibility of the hospital is not derivative, but direct. The court held that once the hospital became aware of the conduct of the physician, it was required to use the arsenal of incentives and sanctions available to it to protect its employees from the good doctor’s discriminatory and unpleasant behavior. The court went on to remark that even if this were a tort case rather than a civil rights case direct, as opposed to derivative, responsibility could attach to the employer.
‘[a] person “can be subject to liability for harm resulting from his conduct if he is negligent or reckless in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or instrumentalities under his control.” Restatement (2d) of Agency § 213(d).’
The court held that the question to be determined at trial is whether the hospital intentionally created or tolerated unequal working conditions.
Justice Rovner, dissenting in part, argued that Ms. Dunn also stated a claim for denial of Equal Protection and retaliation. He asserted that the conduct of the hospital would be construed as a ratification of the discrimination of a private party and when the State so ratifies the conduct it is discrimination period. Dailey v. City of Lawton, Okla., 425 F.2d 1037, 1039 (10th Cir. 1970).
Outsourcing has come into vogue at all levels of government as a means of cutting costs; but farming out public functions to private contractors does not relieve state or local governments of their Fourteenth Amendment obligation not to intentionally discriminate.
Interestingly, the Hospital through its attorney undertook an investigation of Dr. Coy and interviewed Ms. Dunn and a number of other complaining female nurses under a promise of confidentiality. The Chair of the hospital’s executive committee then turned over the final report and witness statements to Dr. Coy with predictable results. The Hospital through its own conduct appears to have opened the door to the ensuing retaliation by Dr. Coy.
