dissenting:
Because I would affirm the district court’s dismissal based on the doctrine of primary jurisdiction, I respectfully dissent.
The majority, faulting the district court for dismissing the complaint on the basis that the PHC has primary jurisdiction, *74cites two rationales for primary jurisdiction' — consistency of rulings and agency expertise — and concludes that neither applies here. I agree that the first rationale does not apply, but believe that the second does. Moreover, a third reason not discussed by the majority, judicial economy, supports invocation of the doctrine.
At its core, Tassy’s complaint is that the hospital has wrongly suspended his privileges and, accordingly, he seeks the reinstatement of his privileges as well as monetary damages. The hospital’s authority to suspend Tassy’s privileges is governed by N.Y. Pub. Health Law § 2801-b(1). Section 2802-b(2) provides that a person claiming that a suspension of his privileges was in violation of subsection (b)(1) may file a complaint with the PHC. Were Tassy to do so, as I think should be required, the PHC would have to decide whether “standards of patient care, patient welfare, the objectives of the institution or [Tassy’s] character or competency” warranted suspension or reinstatement. See NY. Pub. Health Law § 2801-b(1). Tassy would argue, presumably, that they did not warrant suspension; that, because of discrimination, others similarly situated were not so disciplined; and that, given his medical expertise and record of performance relative to others, he should be reinstated. The hospital would have to defend these charges. All of this is squarely within the PHC’s jurisdiction.
There are three likely outcomes of the proceedings before the PHC: (1) a determination in Tassy’s favor; (2) a determination in the hospital’s favor; and (3) a mediated settlement. Only in the event of outcome (2) would it be necessary for Tassy to proceed with his federal action. And, if that were to occur, the federal court would have the benefit of the answers to fact questions from the agency charged with disputes of this sort among professionals. Such answers would be of great assistance in resolving the federal claims that Tassy has presented in his complaint and in determining whether his privileges should be restored.
The majority disputes this point. It reasons that the PHC’s medical expertise would not avail the court in this case because the “primary factual issue is whether Tassy committed the alleged sexual harassment, the resolution of which does not require the PHC’s expertise.” Maj. Op., supra, at 70.1 do not think the factual inquiry invoked by Tassy’s discrimination claims will be so limited.
Tassy claims that the harassment charges, even if true, were a pretext for the hospital’s suspension of his privileges, which was in fact motivated by discriminatory animus. Central to this question, of course, is how the hospital disciplined other similarly situated doctors. In his complaint, Tassy alleges that appellees violated § 1981 and discriminated against him on the basis of his race and national origin by “act[ing] in a malicious manner, fostering baseless charges and taking draconian measures against plaintiff, a black Haitian, which have not been taken against white doctors accused of much more serious indiscretions and much more significant misconduct.” (Emphasis added). Similarly, in his reply brief, Tassy states that his claim of racial discrimination is shown in part by the “frivolous nature of the charges against Dr. Tassy, his excellent job performance and the studied neglect of medical incompetence of Caucasians” (Emphasis added).
Thus, as is apparent from Tassy’s own allegations of pretext, the factual issues in this case will go beyond whether Tassy harassed his co-workers. The factual issues will embrace the question whether, even if the hospital had a legitimate reason to suspend Tassy’s privileges, the hospital *75has treated similarly situated physicians in the same way and whether the medical incompetence of other doctors was overlooked. More precisely, adjudication of Tassy’s claims by this court will entail at least two inquiries that, given their fact-intensive character in the peculiar context of the practice of medicine, could be aided by the expertise of the state agency: (1) whether Tassy, a psychiatrist accused of abusive and harassing conduct, is similarly situated with other physicians who have different specialties, committed different acts of misconduct, or have different employment histories and characters; and (2) whether, in its employment decisions, the hospital has consistently applied the statutorily defined reasons for the suspension of privileges, which are “based on specialized medical considerations.” See Gelbard v. Genesee Hosp., 87 N.Y.2d 691, 696, 642 N.Y.S.2d 178, 664 N.E.2d 1240, 1241 (1996).1 For example, in determining whether Tassy’s privileges were wrongfully suspended, the PHC would likely shed light on questions such as, for example, whether the hospital might have had a legitimate non-discriminatory reason to act more vigorously against accusations of abusive conduct by a psychiatrist, who counsels vulnerable individuals, than against a surgeon or pathologist.
Finally, the majority does not address judicial economy, a third factor that, in addition to consistency in rulings and technical expertise, supports invocation of the doctrine of primary jurisdiction. Although the Supreme Court has yet to rely on this factor, we have done so and, in this case, judicial economy militates in favor of invoking the doctrine. As we noted in a case involving the same state agency, “[w]e also believe that judicial economy will be best served by requiring [plaintiff] to file a complaint with the PHC before seeking judicial relief.” Johnson v. Nyack Hosp., 964 F.2d 116, 123 (2d Cir.1992). Moreover, considerations of judicial economy overlap to a certain extent with those of agency expertise: the expertise of the PHC, particularly in the area of mediating disputes between health-care professionals, could prove helpful to the court in addition to promoting judicial economy. As we stated in Johnson, the “PHC may yet propose a solution that will end the current hostilities between [the parties] without judicial intervention. At the very least, the PHC should be given a chance to try.” 964 F.2d at 123. The New York Court of Appeals has similarly “recognized the vital mediation role served by the PHC in providing a professionally competent forum in which to resolve disputes at any early state.” Gelbard, 87 N.Y.2d at 697, 642 N.Y.S.2d 178, 664 N.E.2d at 1242 (citation and internal quotation marks omitted). One might think that the courts would welcome the opportunity for such pre-liti-gation dispute resolution in a case such as this.
I also think that in many cases the parties would as well. To be sure, it is *76essential that the courts should be available to hear serious and important claims, such as those raised by Tassy. However, it is also important to remember that a lawsuit frequently is a distasteful and needlessly counter-productive way to resolve a dispute. This is particularly so when the dispute is between professionals and involves questions of professional reputation, a professional’s lifeblood. Under such circumstances, the proceeding before the PHC may “often avoid[ ] the unpleasant task of besmirching a physician’s reputation by[ ] ‘using its professional expertise to identify and discourage groundless claims, [and] to mediate and to conciliate disputes between health-care professionals.’ ” Johnson, 964 F.2d at 123 (quoting Cohoes Mem’l Hosp. v. Dep’t of Health, 48 N.Y.2d 583, 589, 424 N.Y.S.2d 110, 399 N.E.2d 1132, 1135 (1979)).
With respect, I dissent.
. In making this point, I do not mean to suggest, as the majority states, Maj. Op., supra, at 71 n. 3, that the PHC will analyze Tassy’s § 1981 claim. Rather, my point is that the agency’s investigation of whether Tassy’s privileges were wrongfully suspended, which the PHC is authorized under New York law to perform, would produce factual determinations that would aid this court’s analysis of Tassy's § 1981 claim in the ways described above. Given the inevitable overlap of Tassy's wrongful suspension and § 1981 claims, the PHC would consider many of the same factual, if not legal, issues as this court would. Nor is there any requirement that the same claims must be brought before both this court and the PHC. See Johnson v. Nyack Hosp., 964 F.2d 116 (2d Cir.1992)(affirming dismissal of plaintiff-physician's antitrust claims for plaintiff-physician's failure to file a complaint with the PHC first).