Jimenez v. Wellstar Health System

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10917 ELEVENTH CIRCUIT
FEB 18, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 08-00049-CV-WSD-1

OMAR F. JIMENEZ,

Plaintiff-Appellant,

versus

WELLSTAR HEALTH SYSTEM,
WELLSTAR KENNESTONE HOSPITAL,
WELLSTAR WINDY HILL HOSPITAL,
WELLSTAR COBB HOSPITAL,
DR. DANIEL MOORE, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(February 18, 2010)

Before BLACK, WILSON and COX, Circuit Judges.

BLACK, Circuit Judge:
This case involves the allegedly discriminatory suspension of a physician’s

medical staff privileges. Medical staff privileges allow a physician both to treat

patients at the privilege-granting hospital and to receive patient referrals from that

hospital. Appellees—physicians, administrators, and hospitals associated with

WellStar Health System (WellStar)—suspended the medical staff privileges of

Appellant, Dr. Omar F. Jimenez, an African-American physician with a specialty

in neurosurgery. Jimenez believed the suspension was racially motivated and

brought claims against the Appellees, individually and collectively, under state

and federal law. The district court dismissed the federal claims pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure and declined to exercise

supplemental jurisdiction over the remaining state law claims. The questions

before this Court are whether Jimenez’s allegations are sufficient to establish

claims under 42 U.S.C. § 1981 for discrimination or retaliation, or under 42 U.S.C.

§ 1985(3) for conspiracy to interfere with his rights on the basis of race.

I. BACKGROUND

On January 10, 2006, WellStar Surgery Department’s Medical Care

Evaluation Committee required Jimenez to appear before it to address numerous

complaints the Committee had received regarding Jimenez’s medical performance.

Three days later, Jimenez was informed that the Committee decided to suspend

2
his medical staff privileges at WellStar. The complaints considered by the

Committee included allegations that Jimenez failed to promptly respond to

emergency-room calls, failed to timely make rounds to see patients, and performed

inappropriate operations.

As a result of the suspension, Jimenez was forbidden to interact with

patients at WellStar hospitals and told that any attempt to do so would be

considered trespassing. The president of WellStar Health System then sent

Jimenez a follow-up letter explaining in greater detail the findings on which the

Committee had based his suspension. The Committee found that Jimenez had

engaged in eighteen instances of inappropriate patient treatment, which included

his failure to respond to requests for emergency consultations, failure to maintain

adequate neurological back-up for post-surgical patients, and failure to manage

surgical complications in a timely manner. Jimenez requested a hearing to appeal

his suspension.

Five months later, in June 2006, Jimenez filed a charge with the Equal

Employment Opportunity Commission (EEOC), alleging the Committee

suspended his medical staff privileges for impermissibly discriminatory reasons.

Approximately eleven months after Jimenez had submitted his request for a

hearing and six months after he had filed his charge with the EEOC, the hearing

3
still had not been granted and Jimenez withdrew his request. Because he had no

medical staff privileges at any hospital during the majority of 2006, Jimenez was

unable to obtain board certification and he lost his eligibility to renew his medical

staff privileges with WellStar.

On January 8, 2008, Jimenez filed a complaint in federal court, alleging

WellStar racially discriminated against him when it suspended his medical staff

privileges. Jimenez alleged both that WellStar knew the performance-related

complaints were false and that other, non-African American physicians who had

committed more serious infractions were nevertheless not disciplined. Jimenez

claims WellStar violated 42 U.S.C. § 1981 by both discriminating against him and

by delaying a hearing on his suspension after he had reported the discrimination.

Lastly, Jimenez claims WellStar violated 42 U.S.C. § 1985(3) by conspiring to

interfere with his property, contract, and § 1981 rights because of his race.1

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal for failure to state a claim,

“accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500

F.3d 1276, 1282 (11th Cir. 2007).

1
Jimenez also raised various state law claims that are not at issue in this appeal.

4
III. ANALYSIS

A. Jimenez’s 42 U.S.C. § 1981 Discrimination Claim

Title 42 U.S.C. § 1981 creates a federal right of action for victims of certain

types of racial discrimination. To state a claim for non-employment2

discrimination under § 1981, a plaintiff must allege (1) he is a member of a racial

minority, (2) the defendant intended to racially discriminate against him, and

(3) the discrimination concerned one or more of the activities enumerated in the

statute. Rustein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir.

2000). The rights enumerated in the statute include the right “to make and enforce

contracts, to sue, be parties, give evidence, and to the full and equal benefit of all

laws and proceedings for the security of persons and property as is enjoyed by

white citizens.” 42 U.S.C. § 1981(a).

The parties agree Jimenez has sufficiently alleged facts satisfying the first

two prongs of a prima facie § 1981 claim. The controversy centers on whether

Jimenez adequately pled that WellStar’s alleged discrimination concerned

activities enumerated by the statute. Jimenez advances three theories as to why

suspension of his medical staff privileges violated rights protected under § 1981.

He contends the suspension of his privileges: (1) violated his contractual

2
Neither party argues WellStar was Jimenez’s employer.

5
relationship with WellStar; (2) interfered with his right to contract with patients

and third-party payors; and (3) deprived him of his property interest in his

profession. Each of these theories fails.

1. Contractual Relationship with WellStar

To state a claim under § 1981 for interference with a right to contract, “a

plaintiff must identify an impaired contractual relationship under which the

plaintiff has rights.” Kinnon v. Acroub, Gopman & Assocs., 490 F.3d 886, 890

(11th Cir. 2007) (quotations omitted). Jimenez contends he had an implicit

contract with WellStar, pursuant to which WellStar agreed to grant Jimenez

medical staff privileges and, in turn, Jimenez agreed to treat patients at WellStar

hospitals. Under such a theory, the staff privileges would serve as the

consideration for the contract; they would not themselves create the contract.

Thus, Jimenez concludes, WellStar’s revocation of Jimenez’s privileges amounted

to a breach of contract, and, because the revocation was allegedly for

discriminatory purposes, the revocation violated § 1981.

WellStar’s policies make clear that medical staff privileges do not confer

upon a physician any contractual rights.3 Georgia law agrees. Under Georgia law,

3
WellStar’s Appointment Policy governing the grant of medical staff privileges to
physicians states, “Membership on the Medical Staff does not create a contractual relationship
between WellStar or any Medical Staff and the Medical Staff Member.” At WellStar, medical
staff members are required to meet certain “Minimum Objective Criteria,” and the failure to do
so may result in automatic termination of medical staff privileges. Further, summary suspension
6
medical staff bylaws, which govern medical staff privileges, do not create a

contractual right to the continuation of those privileges.4 St. Mary’s Hosp. of

Athens, Inc. v. Radiology Prof’l Corp., 421 S.E.2d 731, 736 (Ga. Ct. App. 1992);

see also Stein v. Tri-City Hosp. Auth., 384 S.E.2d 430, 432 (Ga. Ct. App. 1989)

(explaining hospitals have the power to create rules governing medical practice in

their facilities to ensure competent care, so “[i]t naturally follows that a hospital

authority has the power to revoke the staff privileges of a physician whom it finds

to be incompetent or who fails to comply with [its] reasonable rules and

regulations” (quotation and emphasis omitted)). Interpreting the bylaws

governing staff privileges as a contract “would run counter to [Georgia’s] policy

of allowing the hospital to grant or withhold staff privileges from doctors it

believes are unqualified to serve on its staff.” Robles v. Humana Hosp.

Cartersville, 785 F. Supp 989, 1002 (N.D. Ga. 1992).

Jimenez’s theory that his medical staff privileges constituted consideration

for a broader contract is ultimately unpersuasive. Were that theory accurate, many

of the Georgia cases holding that medical staff privileges do not create a

of privileges can take effect immediately if there are “reasonable grounds to believe that the
conduct or activities of a Practitioner pose a threat to the life, health, or safety of any patient,
employee, or other person present” at the hospital.
4
We do not foreclose the possibility that Jimenez and WellStar had some sort of
contractual relationship, we merely note Jimenez did not have any contractual right against the
suspension of his medical staff privileges, the act on which he bases his § 1981 claim.
7
contractual relationship would be rendered meaningless. In any case involving

revocation of staff privileges, a plaintiff could argue that although the staff

privileges themselves did not create a contract, the privileges were the

consideration for the broader contractual relationship between the parties; the

plaintiff could thereby circumvent Georgia’s clear rule that medical staff

privileges cannot create contractual liability. Thus, under Georgia law, alleging

suspension of medical staff privileges does not implicate any contractual

relationship, and, as such, cannot be the basis of § 1981 discrimination claim.

2. Right to Contract with Patients and Third-Party Payors

Jimenez argues WellStar’s suspension of his medical staff privileges also

interfered with his right to contract with patients and third-party payors. The

record indicates, however, Jimenez had access to the patients he treated at

WellStar only because they were admitted to the hospital while he was on call;

thus, his relationship with them was a benefit of the medical staff privileges to

which he was no longer entitled. The same conclusion precludes any claim

Jimenez makes regarding interference with future contracts he might have formed

with patients admitted after his suspension; in addition, such contracts are too

speculative to form the basis of a § 1981 claim. See Hampton v. Dillard Dept.

Stores, Inc., 247 F.3d 1091, 1104 (10th Cir. 2001) (holding racially motivated

8
interference with a contract can serve as the basis for a § 1981 claim, but

interference with merely a possible future contract cannot). Moreover, Jimenez

does not allege he was not paid for any services rendered prior to the suspension.

As such, any interference with Jimenez’s relationships with WellStar’s patients

cannot provide the basis for his § 1981 claim. It is illogical that Georgia law

would grant WellStar the authority to suspend Jimenez’s privileges to treat its

patients while simultaneously obliging WellStar to allow Jimenez to contract with

its patients for that treatment.

3. Property Interest in Practicing Medicine

Jimenez next claims the suspension of his medical staff privileges deprived

him of his property interest in practicing medicine without the benefit of the same

“proceedings for the security of . . . [that] property as is enjoyed by white

citizens.” See § 1981.

Property interests are established by “existing rules or understandings that

stem from an independent source such as state law—rules or understandings that

support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972). Jimenez asserts that under

Georgia law he had a property interest in continuing to practice medicine, and

WellStar interfered with that interest by suspending his medical staff privileges.

9
As we explained in Part III.A. supra, however, under Georgia law a physician is

not entitled to the continuation of his medical staff privileges. See St. Mary’s

Hosp., 421 S.E.2d at 736. Doctors accept medical staff privileges knowing those

privileges are subject to termination or suspension by the hospital. Stein, 384

S.E.2d at 432. Further, in Georgia, physicians do not have a broad property

interest in continuing to practice medicine. See see Alonso v. Hosp. Auth., 332

S.E.2d 884, 888 (Ga. Ct. App. 1985) (holding a physician does not have a

protected property interest in his job, because there is no absolute authority to

practice medicine in hospitals in Georgia). Thus, because Jimenez had no

contractual or state-law entitlement to maintain medical staff privileges at

WellStar specifically, or to continue his practice of medicine more broadly, the

district court did not err in ruling Jimenez failed to properly allege a violation of

§ 1981 based on interference with a property interest.

B. Jimenez’s 42 U.S.C. § 1981 Retaliation Claim

Jimenez contends that his charge filed with the EEOC was the reason for

which the Committee delayed the hearing on the suspension of his medical staff

privileges. In the June 2006 EEOC charge, filed five months after his suspension,

Jimenez alleged his medical staff privileges had been impermissibly suspended

10
because of his race.5 Six months after Jimenez filed the EEOC charge, the

Committee still had not granted the hearing, and Jimenez elected to withdraw his

request.

To state a retaliation claim under § 1981, a plaintiff must allege a defendant

retaliated against him because the plaintiff engaged in statutorily protected

activity. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).

As with other statutory retaliation claims, such a claim under § 1981 requires that

the protected activity involve the assertion of rights encompassed by the statute.

See Hawkins v. 1115 Legal Svc. Care, 163 F.3d 684, 693 (2d Cir. 1998); see also

Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004)

(stating to establish a retaliation claim under Title VII, the retaliation must be in

response to a “statutorily protected activity”); Wascura v. City of S. Miami, 257

F.3d 1238, 1247 (11th Cir. 2001) (holding to establish a retaliation claim under the

FMLA, the employee must first engage in an activity protected by the FMLA).

The issue, then, is whether Jimenez engaged in a statutorily protected activity by

5
Prior to his suspension, Jimenez complained to hospital administrators that the head of
neurosurgery, Dr. Moore, was not placing Jimenez on call or listing him as available to treat
patients. Jimenez claimed this violated “his personal rights.” Jimenez also wrote letters to the
United States Department of Health and Human Services Civil Rights Office, copies of which he
sent to WellStar, claiming his “rights as a human being” were violated when Moore once entered
and stayed in Jimenez’s operating room without Jimenez’s permission; Jimenez claimed his
rights were further violated when Wellstar Kennestone Hospital failed to take action against
Moore after Jimenez reported the incident. None of these allegations can be construed to
implicate a conract or property interest.
11
reporting to the EEOC that his medical staff privileges had been discriminatorily

suspended.

As Part III.A. explains, under Georgia law, a physician does not have either

a contract interest or property interest in maintaining medical privileges at Georgia

hospitals. Thus, because the suspension of medical staff privileges does not

implicate any rights protected by § 1981, Jimenez’s EEOC charge regarding his

suspension cannot form the basis of his § 1981 retaliation claim. We accordingly

conclude the district court did not err in dismissing Jimenez’s retaliation claim.6

C. Jimenez’s 42 U.S.C. § 1985(3) Conspiracy Claim

Finally, Jimenez claims WellStar violated 42 U.S.C. § 1985(3) by

conspiring to deprive him of his right to contract, his right to practice his

profession, and his rights under § 1981. To state a claim under § 1985(3), a

plaintiff must allege: (1) defendants engaged in a conspiracy; (2) the conspiracy’s

purpose was to directly or indirectly deprive a protected person or class the equal

protection of the laws, or equal privileges and immunities under the laws; (3) a

6
Jimenez argues a claim for retaliation under § 1981 requires only that the plaintiff held
that an objectively reasonable belief that he had engaged in statutorily protected activity, even if
the activity was not actually protected. This Circuit has never held an objectively reasonable
belief that the activity was protected is sufficient to support a retaliation claim under § 1981. But,
even assuming arguendo that the standard applies in this case, Jimenez’s belief was not
objectively reasonable, given the clearly established Georgia law regarding medical staff
privileges. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1317 (11th Cir. 2002) (holding, in a
Title VII case, “Plaintiffs may not stand on their ignorance of the substantive law to argue that
their belief was reasonable”).
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conspirator committed an act to further the conspiracy; and (4) as a result, the

plaintiff suffered injury to either his person or his property, or was deprived of a

right or privilege of a citizen of the United States. Johnson v. City of Fort

Lauderdale, 126 F.3d 1372, 1379 (11th Cir. 1997). When the alleged § 1985(3)

conspirators are private actors, the plaintiff must demonstrate that the conspiracy

was aimed at rights constitutionally protected against private impairment. Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 274, 113 S. Ct. 753, 763

(1993); Park v. City of Atlanta, 120 F. 3d 1157, 1162 (11th Cir. 1997). These

rights include only select “serious constitutional right[s].” Cook v. Randolph

County, 573 F.3d 1143, 1157 (11th Cir. 2009) (quotation omitted).

The only rights the Supreme Court has expressly declared enforceable

against private conspirators under § 1985(3) are the right to interstate travel and

the right against involuntary servitude. See Bray, 506 U.S. at 278, 113 S.Ct. at

764. Conversely, the Supreme Court has declared the freedom of speech, id., and

the rights protected under Title VII, Great Am. Fed. Sav. & Loan Ass’n v. Novotny,

442 U.S. 366, 378, 99 S. Ct. 2345, 2352 (1979), insufficient to form the basis of

§ 1985(3) actions against private conspirators. Other than the few rights the

13
Superme Court has addressed, district and circuit courts differ as to which rights

warrant § 1985(3) protection.7

This Circuit has routinely and systematically grouped Title VII and § 1981

claims for analytic purposes. See, e.g., Standard v. A.B.E.L. Servs., 161 F.3d

1318, 1330 (11th Cir. 1998) (analyzing Title VII and § 1981 claims concurrently

because of their similarity). Thus, because conspiracies to violate rights protected

by Title VII cannot form the basis of § 1985(3) suits, Novotny, 442 U.S. at 378, 99

S. Ct. at 2352, and because the Supreme Court has been conservative in

designating which rights litigants may enforce against private actors under

§ 1985(3), we hold conspiracies to violate rights protected under § 1981 are

likewise insufficient to form the basis of a § 1985(3) claim. Further, even if

interference with contract and property rights could sustain a § 1985(3) claim,

Jimenez has not adequately pled interference with any such rights here. See supra,

Part III.A. The district court, therefore, did not err in ruling Jimenez failed to state

a claim under § 1985(3).

7
Some district courts have held a conspiracy to violate § 1981 may form the basis of a
§ 1985(3) claim. See, e.g., Spectronics Corp. v. TCI/TKR of Jefferson County, Inc., 17 F. Supp
2d 669, 672 (W.D. Ky. 1998); Chambers v. Omaha Girl’s Club No. 957, 629 F. Supp. 925, 940
(D. Neb. 1986); Hudson v. Teamsters Local Union, 536 F. Supp. 1138, 1147 (S.D. Ohio 1982).
Other courts have held conspiracies to violate contract and property rights—violations that form
the basis of § 1981 claims—cannot spawn § 1985(3) claims. See, e.g., Brown v. Philip Morris
Inc., 250 F.3d 789, 805–06 (3d Cir. 2001) (holding property and contract rights are statutorily,
not constitutionally, protected and therefore a conspiracy to violate those rights is an insufficient
foundation for a § 1985(3) claim).
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IV. CONCLUSION

Because Jimenez has failed to sufficiently allege that WellStar interfered

with his contract or property rights, Jimenez has not stated a claim under either

§ 1981 or § 1985. Accordingly, we affirm the district court’s dismissal as to all of

Jimenez’s claims.

AFFIRMED.