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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KIMBERLY GERSTADT, Plaintiff v. LEHIGH VALLEY INFECTIOUS: DISEASE SPECIALISTS, et al., Defendants : : : : : : : CIVIL ACTION NO. 08-4869 MEMORANDUM STENGEL, J. March 30, 2009 D r . Kimberly Gerstadt was offered a job with Lehigh Valley Infectious Disease S p e c ia lis ts (LVIDS). Her employment was contingent on obtaining staff privileges at L eh igh Valley Hospital. When she began to prepare her application for the hospital's c re d e n tia lin g committee, Dr. Gerstadt was several weeks pregnant and suffering from m o rn in g sickness. Despite numerous letters of recommendation and support, her a p p lic a tio n was ultimately rejected. Because she failed to receive staff privileges, LVIDS w ith d re w its offer to Dr. Gerstadt. Her complaint alleges that the interviewers and other s ta f f members knew of her pregnancy and used it against her. Dr. Gerstadt filed this suit against LVIDS, two corporate parent organizations (the L e h ig h Valley Health Network, Inc., and the Lehigh Valley Physician Group), and five in d iv id u a l physicians for discriminating against her because of her pregnancy. The d e f e n d a n t s have filed a partial motion to dismiss. After reviewing the parties' m e m o ra n d a I will grant the motion in part and deny it in part. I . Background D r. Kimberly Gerstadt is an infectious disease physician. (Am. Compl. 5.) Lehigh Valley Infectious Disease Specialists (LVIDS) agreed to hire her in December 2 0 0 6 . (Id. 19.) At the time, LVIDS was an independent business organization that was " o p e ra te d , controlled, and managed" by Lehigh Valley Physician Group (the Physician G ro u p ) and/or Lehigh Valley Health Network, Inc. (the Health Network). (Id. 6.) It is n o w wholly owned and operated by the Physician Group. (Id.) The Physician Group is w h o lly owned and operated by the Health Network. (Id. 7.) A condition of Dr. Gerstadt's employment was that she obtain staff privileges at L e h ig h Valley Hospital. (Id. 20.) Lehigh Valley Hospital is also owned and operated b y the Health Network. (Id.) She began her application for staff privileges in January 2 0 0 7 , and the credentialing committee was scheduled to review it in April 2007. (Id. 2 1 2 2 .) The application process consisted of a series of interviews with members of the m e d ic a l staff. (Id. 23.) In late March, the hospital contacted Dr. Gerstadt and informed h e r that an interview with Dr. Linda Lapos, President of the Medical Staff, had been in a d v e rte n tly left out. (Id. 24.) Dr. Gerstadt would have to come back to the hospital to c o m p le te that interview. (Id.) At the time, she was approximately seven weeks pregnant a n d was experiencing severe morning sickness. (Id. 25.) She asked whether the interview could be delayed or be done over the phone, instead of in-person. (Id. 26.) She was told no exceptions would be made. (Id. 27.) -2- O n April 9, 2007, Dr. Gerstadt went to meet Dr. Lapos, and was again e x p e rie n c in g severe morning sickness. (Id. 2829.) While at the hospital, Dr. Gerstadt w a s told she would need to undergo a physical at least five days before she started work. (Id. 30.) Unsure of whether she would be able to return to the hospital again, she e x p la in e d her pregnancy and the morning sickness, and asked if the physical could be p e rf o rm e d that same day. (Id. 3132.) She was told no exceptions would be made. (Id.) O n April 10, 2007, Dr. Gerstadt was contacted by Dr. Luther Rhodes and was a sk e d to come back to the hospital to discuss a few issues. (Id. 3435.) She went back in on April 12 and met with Drs. Jaan Naktin, Theresa Ryan-Mitlyng, and Rhodes. (Id. 3 6 .) She was told that a reference from Crozer-Chester Medical Center was "not good." At the interviewers' request, she provided three more letters of recommendation from C ro z e r-C h e ste r. (Id. 3738.) The hospital then requested four more letters from C roz er-C h e ster. (Id. 40.) All seven letters were positive. (Id. 41.) Drs. Rhodes and Naktin wrote letters supporting Dr. Gerstadt's application. (Id.) It is not known if Dr. Ryan-Mitlyng wrote a positive letter as well. (See id. (stating that D rs . Rhodes and Naktin wrote letters, but not if Dr. Ryan-Mitlyng had).) D r. Gerstadt's application was then sent to be reviewed by Dr. John Vanbrakle, C h a ir of the Credentialing Committee. (Id. 42.) He reportedly saw no problems. (Id. 4 3 .) Other physicians at LVIDS spoke with Dr. John Fitzgibbons, Chair of the Health -3- N e tw o rk 's Department of Medicine, to express their support since he was responsible for p re s e n tin g Dr. Gerstadt's application. (Id. 45.) A t the May 10 Credentialing Committee meeting, the application was denied. (Id. 47.) Dr. Fitzgibbons did not attend the meeting. (Id. 48.) Within a few days of this d e c is io n , Dr. Gerstadt received two letters. The first came from the Health Network and w a s written by Dr. Ryan-Mitlyng. (Id. 49.) It stated that Dr. Gerstadt could not be e m p lo ye d at LVIDS because her credentialing application had been rejected. (Id.) The s e c o n d letter, which came from Dr. John Hart on behalf of the hospital, stated that "since L V ID S had withdrawn their offer of employment, her application for staff privileges [at L e h ig h Valley Hospital] was considered withdrawn." (Id. 51.) B a se d on these facts, Dr. Gerstadt filed a complaint containing four counts: (1) p re g n a n c y discrimination and disparate treatment in violation of Title VII1; (2) hostile w o rk environment, pregnancy discrimination, retaliation, and disparate treatment in v io la tio n of the Pennsylvania Human Relations Act (PHRA)2; (3) breach of contract; and (4 ) interference with contractual relations. (Id. 6778.) She has also sued five of the Title VII provides that "[i]t shall be an unlawful employment practice for an discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. 2000e. The PHRA provides "[t]he opportunity for an individual to obtain employment for which he is qualified . . . without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, national origin . . . ." Courts interpret the PHRA consistently with Title VII. Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001) ("The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably."). -42 1 p h ys ic ia n s under the PHRA for aiding and abetting the discrimination: Dr. Fitzgibbons, D r. Lapos, Dr. Vanbrakle, Dr. Ryan-Mitlyng, and Dr. Hart. T h e defendant's Motion to Dismiss (Document #8) challenges all claims except f o r the Title VII and the PHRA against LVIDS, the Health Network, and the Physician G ro u p . The plaintiff's response was late and includes a request for leave to file out of tim e. (See Pl.'s Mot. for Leave to File (Document #12).) II. Standard of review A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure f o r failure to state a claim upon which relief can be granted examines the legal sufficiency o f the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations m u s t be sufficient to make the claim for relief more than just speculative. Bell Atlantic C o rp . v. Twombly, 550 US 544, 127 S.Ct. 1955, 1965 (2007). In determining whether to g ra n t a motion to dismiss, a federal court must construe the complaint liberally, accept all f a ctu a l allegations in the complaint as true, and draw all reasonable inferences in favor of th e plaintiff. Id. See also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984). T h e Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all o f the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules re q u ire a "short and plain statement" of the claim that will give the defendant fair notice o f the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must -5- a lle g e facts suggestive of [the proscribed] conduct." Twombly, 127 S.Ct. at 1969. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. S o u th e a ste rn Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim m u st contain enough factual matters to suggest the required elements of the claim or to " ra is e a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 1 2 7 S.Ct. at 1965)). I I I . Discussion a ) Leave to file I will grant the request for leave to file. Counsel for the defendants has been n o tif ie d of the untimeliness of plaintiff's response and does not object. (Pl.'s Mot. for L ea v e to File 11.) b) Uncontested dismissal of retaliation, hostile work environment, and breach o f contract claims B ec au se Dr. Gerstadt concedes to dismissing her retaliation and hostile work e n v iro n m e n t claims under the PHRA, her breach of contract claim, and her request for p u n itiv e damages for those claims, I will dismiss them. -6- c ) Tortious interference with contractual relations In Pennsylvania, the elements of a claim for tortious interference with existing or p ro s p e c tiv e contractual relations are: (1 ) The existence of a contractual relationship, or a prospective c o n tra c tu a l relationship; (2 ) An intent on the part of the defendant to harm the plaintiff by in te rf e rin g with that contractual relationship or that potential r e la tio n s h ip ; (3 ) The absence of a privilege or justification for such interference; and (4 ) Damages resulting from the defendant's conduct. C lub C o m , Inc. v. Captive Media, Inc., 2009 WL 249446, at *11 (E.D. Pa. Jan. 31, 2009); S m a ll v. Juniata Coll., 682 A.2d 350, 354 (Pa. Super. Ct. 1996). The defendants do not d is p u te the first element. They argue that (1) they engaged in no tortious conduct, and (2) D r. Gerstadt has not shown that LVIDS is independent of the Health Network and/or the P h ys ic ia n Group. I will deny the motion as to both arguments. 1 ) Presence of wrongful conduct U n lik e other intentional torts, a claim for intentional interference with contractual relatio n s turns on whether the defendant's interference was improper or not. See Adler, B a ris h , Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175, 1184 n.17 (Pa. 1978) (q u o tin g RESTATEMENT (SECOND) OF TORTS 767 cmt. b (1982)). As another comment to that section indicates,"the interference [must] be both intentional and improper." RESTATEMENT (SECOND) OF TORT 767 cmt. a (emphasis added). -7- W h e n determining whether the defendant's conduct was improper, Pennsylvania c o u rts have traditionally relied on Section 767 of the Restatement (Second) of Torts. See, e .g ., Adler, Barish, 393 A.2d at 1184 ("We are guided, too, by Section 767 of R e sta tem e n t (Second) of Torts, which focuses on what factors should be considered in d e te rm in in g whether conduct is `improper.'"); Strickland v. Univ. of Scranton, 700 A.2d 9 7 9 , 985 (Pa. Super. Ct. 1997); see also Triffin v. Janssen, 626 A.2d 571, 574 n.4 (Pa. S u p e r. Ct. 1993) (providing a string citation of Pennsylvania state court cases that have c o n su lted the Restatement (Second) of Torts when analyzing intentional interference with c o n tra c tu a l relations claims). To guide the court's inquiry, Section 767 provides the following factors: (1 ) (2 ) (3 ) th e nature of the actor's conduct; th e actor's motive; th e interests of the other with which the actor's conduct in t e rf e r e s ; th e interests sought to be advanced by the actor; th e social interests in protecting the freedom of action of the ac to r and the contractual interests of the other; th e proximity or remoteness of the actor's conduct to the in te rf e re n c e ; th e relations between the parties. (4) (5 ) (6 ) (7) 767. By necessity, this is a case-specific determination requiring analysis of the facts in lig h t of the listed factors. Id. cmt. b (stating that the inquiry is to determine "whether the -8- in ter f e re n c e [was] improper or not under the circumstances." (emphasis added)); see, e.g., S trick lan d v. Univ. of Scranton, 700 A.2d 979, 98586 (Pa. Super. Ct. 1997) (engaging in a factual analysis using the factors listed in Section 767 in finding that the defendant's co n d u ct was not improper). T h e defendants argue that the only "wrongful" conduct presented in the complaint is the Health Network and the Physician Group's breach of their own bylaws. (Def.'s M e m . at 16.) They state that "such conduct--breaching bylaws--[is] neither tortious nor ille g a l." (Id. at 17.) No additional information on what those bylaws require or how the d e f en d a n t violated them was provided. T h e defendants construe the complaint too narrowly and miss its thrust. Reading th e complaint liberally, I find that it states that the Health Network and the Physician G ro u p were motivated in part by Dr. Gerstadt's pregnancy to deny her application. (See A m . Compl. 54 ("Dr. Kimberly Gerstadt believes, and therefore avers, that Defendants e n g a g ed in invidious discrimination against her because she was pregnant.").) The bylaw v iolatio n is referenced in only one paragraph; the near entirety of the complaint's p re se n ta tio n of the facts is focused on how the defendants used Dr. Gerstadt's pregnancy a g a in st her. To describe the bylaw violations as the only "wrongful conduct" identified in th e complaint ignores all of these other pregnancy-related allegations. Consequently, I f in d that the complaint has stated that the defendants engaged in improper conduct. F irst, the described conduct is illegal. Title VII of the Civil Rights Act prohibits e m p lo ym e n t discrimination on the basis of gender. 42 U.S.C. 2000e-2(a) (2006). -9- W h e n an employee's pregnancy was a motivating factor for an adverse employment d e c is io n , the employer has violated Title VII. See id. 2000e-2(m) ("[A]n unlawful e m p lo ym e n t practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also m o tiv a te d that practice."). Here, the complaint alleges that the defendants' employment d e c is io n s were based in part on improper considerations of Dr. Gerstadt's pregnancy. The illegality of the defendants' conduct favors finding their actions to be wrongful. See R ESTATEMENT (SECOND) OF TORTS 767 cmt. c ("Conduct specifically in violation of s ta tu to ry provisions or contrary to established public policy may for that reason make an interfe ren ce improper.").3 S e c o n d , the public's interests also weigh in favor of finding the conduct to be im p ro p e r. There is no redeeming social value in gender-based employment d is c rim in a tio n . Denying a doctor staff privileges merely because she is pregnant, if true, is wrong and impedes society's interests. T h ird , the defendants allegedly had no non-discriminatory reason for their d e c is io n . The complaint states that Dr. Gerstadt's application was supported by several p o sitiv e letters of recommendation. A few of the interviewers spoke on her behalf to To the extent she bases her interference claim on the defendants' alleged discriminatory conduct, Dr. Gerstadt may be required to set forth the prima facie case for an interference with contractual relations claim in addition to showing that the interference was made on the basis of improper discrimination violating federal law. Wood v. Coleman, 1989 WL 29250, at *17 (E.D. Pa. Mar. 29, 1989). -10- 3 m e m b e r s of the Credentialing Committee. Dr. Gerstadt's professionalism and c o m p e te n c y were not called into question. A c c ep tin g the complaint's factual allegations as true and drawing inferences in the p la in tif f 's favor, I find that it states that the Health Network and the Physician Group used th e plaintiff's pregnancy as a negative factor in rejecting her application. Such c o n sid e ra tio n s are illegal and constitute improper conduct. For these reasons, I will deny th e motion as to this part.4 2 ) LVIDS is an independent third party A necessary component of the tortious interference claim is the existence of three p a rtie s: the tortfeasor, the plaintiff, and a third party. Maier v. Maretti, 671 A.2d 701, 707 (P a . Super. Ct. 1995). The plaintiff's contract must have been with someone other than th e tortfeasor. Otherwise, no interference claim exists because the tortfeasor would s im p ly be disrupting his own contractual relations. See RESTATEMENT (SECOND) OF Tied into the consideration of the defendants' conduct is their intent. See RE ST A T EM E N T (SECOND) OF TORTS 767(b) (stating that the actor's motive is a factor to be weighed in determining whether the conduct was improper). The defendants have not challenged this point, but it is an issue worth addressing because separating the analysis of whether the conduct was proper from the defendants' intent is a legal fiction of sorts. As the comments to Section 767 indicate, the defendant's motive is a key factor in determining whether his conduct was improper or not. 767 cmt. d. The plaintiff's burden extends beyond merely demonstrating that the defendant used illegal means. The plaintiff must also establish that the defendant intended to cause harm. This is not a requirement to prove that the defendant bore ill will against the plaintiff. Ruffing v. 84 Lumber Co., 600 A.2d 545, 550 (Pa. Super. Ct. 1991). Rather, in the case of prospective contractual relations, the plaintiff must show that the defendant intended to prevent the plaintiff's contract or acted with the knowledge that the injury was certain or substantially certain to occur as a result. See 766 cmt. j (discussing the intent necessary to support a tortious interference claim); Glenn v. Park Point Coll., 272 A.2d 895, 899 (Pa. 1971) ("It must be emphasized that the tort we are considering is an intentional one: the actor is acting as he does for the purpose of causing harm to the plaintiff."). -114 T ORTS 766 (describing the tort by reference to three parties). The defendants argue that D r. Gerstadt pled herself out of court by alleging that the Health Network and the P h ys ic ia n Group operated, controlled, and managed LVIDS and that the three o rg a n iz a tio n s are integrated and interrelated. (Def.'s Mem. at 14.) If true, then LVIDS w a s not "functionally independent" of the Health Network or the Physician Group, and no in te rf e re n c e claim exists. (Id.) T h e problem is that the defendants construe the complaint against the plaintiff. I m u s t draw all reasonable inferences in the plaintiff's favor, and what I glean from the c o m p lain t is that some unspecified amount of control could be exercised by the Health N e tw o rk and the Physician Group but that LVIDS remained independent at the time. The c o m p la in t clearly states that LVIDS was "an independent business organization at the tim e of the incident" (Am. Compl. 6). No additional information into how much c o n tro l could be exercised or how much was actually exercised is presented. Under the s ta n d a rd of review for a motion to dismiss, I read the complaint as stating that LVIDS m a in ta in e d some amount of independence from the Health Network and the Physician G ro u p . I am also persuaded by Pennsylvania's stated preference for treating corporate p a re n ts and subsidiaries as separate bodies. Even where a corporate parent has near-total c o n tro l over a subsidiary, courts have declined to adopt a per se rule stating that the p a re n t and subsidiary are one entity. Nat'l Data Payment Sys. v. Meridian Bank, 212 F .3 d 849, 856 (3d Cir. 2000) (recognizing situations where a corporate parent may be -12- p riv ile g e d to interfere with its subsidiary's contractual relations). Instead, the inquiry has b e e n focused on the parent's reasons for interfering. In National Data Payment Systems, th e Third Circuit Court of Appeals provided a pithy summary on this point: In Green v. Interstate United Management Services Corp., 748 F.2d 8 2 7 (3d Cir. 1984), a parent corporation instructed its wholly-owned s u b s id ia ry not to sign a lease after an appraiser opined that the c o n tra c t was a bad bargain. This Court found that the interference w a s privileged due to the parent's interest in preventing the d is s ip a tio n of its subsidiary's assets. Similarly in Advent Systems L im ite d v. Unisys Corp., 925 F.2d 670, 673 (3d Cir. 1991), we noted th a t a prospective purchaser's "interest in the financial stability of its s u b s id ia ry and the need to avoid a situation where the two would be w o rk in g at cross-purposes justified the disruption" of pending c o n tra c t negotiations with a third party. 2 1 2 F.3d at 856. If a parent and its subsidiary were considered one and the same, then an in q u iry into the parent's reasons for interfering would be unnecessary.5 The parent would b e incapable of interfering at all. The Third Circuit's analysis suggesting that a parent m a y interfere when it has a proper basis for doing so necessarily assumes that the parent a n d subsidiary are to be considered as separate entities. T h e Pennsylvania Superior Court's consideration of these federal decisions n a rro w e d their application but generally supports this proposition. See Shared Commc'ns S erv s. of 1800-80 JFK Blvd, Inc. v. Bell Atl. Prop., Inc., 692 A.2d 570, 573 (Pa. Super. C t. 1997) ("Although a parent and a wholly owned subsidiary do share common goals, This accords with a prior holding that a tortious interference claim is less likely to stand if the parent's conduct was motivated by "a genuine desire to protect legitimate business interests . . . ." Windsor Sec., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 665 (3d Cir. 1993). This suggests that a parent and its subsidiary can be separate entities for the purposes of this branch of tort claims. -13- 5 th e y are still recognized as separate and distinct legal entities."). In Shared C o m m u n ic a tio n s , the court distinguished Advent Systems and Green by noting that the p a re n t's privilege to interfere in those cases was based on its interest in preventing asset d iss ip a tio n . Id. at 575. The court also suggested that the "privilege" may not exist in s itu a tio n s such as when the parent's motive for interference is to aggrandize itself. Id. Again, the logical consequence is that a parent corporation can be liable for tortiously in te rf e rin g with the contractual relations of a wholly-owned subsidiary.6 B a s e d on this case law, I find that the complaint has properly identified at least th r e e distinct parties. The complaint states that LIVDS was "an independent business o rg a n iza tio n at the time of the incident" (Am. Compl. 6). When drawing all reasonable The Superior Court's treatment of a corporation and its subsidiary in the common law conspiracy context also provides grounds for denying the motion. Similar to a tortious interference claim, common law conspiracy in Pennsylvania requires the presence of more than one person. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 473 (Pa. 1979). Consequently, cases finding that a corporation and its subsidiary were liable of conspiracy necessarily found them to be separate entities. In Shared Communications, the Superior Court considered whether a corporate parent could be found liable of engaging in common law conspiracy with a wholly owned subsidiary. 692 A.2d at 57274. Rather than embracing a bright-line rule disregarding the formal corporate form in that context, see, e.g., Copperweld Corporation v. Independence Tube Corporation, 467 U.S. 752 (1984) (holding in part that a parent corporation cannot be liable of conspiring with its subsidiary for the purposes of the Sherman Antitrust Act), the court adopted a case-specific analysis of determining if the parent and subsidiary are truly separate or merely corporate alter egos. 692 A.2d at 574. As a guiding principle, the court stated that the corporate form should only be disregarded "in [those] limited circumstances when [it is] used to defeat public convenience, justify wrong, protect fraud or defend a crime." Id. at 573 (quoting Kashner v. Geisinger Clinic, 638 A.2d 980, 984 (Pa. Super. Ct. 1994)). In finding that the evidence presented supported both a conspiracy claim and a tortious interference claim between the parent and subsidiary, the court found that the entities were created to be distinct entities, performed different operations, and had separate management and goals. Id. at 575. This suggests that where a sufficient delineation in management, operations, and goals exists, the corporate form is not so easily disregarded. -146 in f e re n c es in the plaintiff's favor, the complaint states that the Health Network and the P h ys ic ia n Group had some unspecified amount of control over LVIDS. How much c o n tro l could be exercised or how much was actually exercised was not presented. In the face of this ambiguity, it would be contrary to the standard of review for me to c o n c lu d e that the Health Network and the Physician Group had full and total control to in ter f e re in LVIDS' affairs. As a result, I will deny the motion as to this point. d ) PHRA individual liability claims T h e PHRA provides for individual liability where the person has aided or abetted a c ts of discrimination. Section 955(e) of the PHRA provides: (e ) For any person, employer, employment agency, labor o rg a n iz a tio n or employe, to aid, abet, incite, compel or coerce the d o in g of any act declared by this section to be an unlawful d is c rim in a to ry practice, or to obstruct or prevent any person from c o m p lyin g with the provisions of this act or any order issued th e re u n d e r, or to attempt, directly or indirectly, to commit any act d e c la re d by this section to be an unlawful discriminatory practice. 43 PA. CONS. STAT. ANN. 955(e) (West 2008). This section of the PHRA clearly e x p re ss e s the legislature's intent that "any person, whether or not an employer" can be h e ld responsible for aiding or abetting unlawful discriminatory employment practices. Commonwealth v. Transit Casualty Ins. Co., 387 A.2d 58, 62 (Pa. 1978). Courts have a llo w e d an individual supervisory employee to be held liable under this theory "for his o w n direct acts of discrimination or for his failure to take action to prevent further d is c rim in a tio n by an employee under supervision." Davis v. Levy, Angstreich, Finney, B alda n te, Rubenstein & Coren, P.C., 20 F. Supp.2d 885, 887 (E.D. Pa. 1998). However, -15- th e re can be no liability for refusing to remedy discrimination unless the plaintiff alleges th a t the party knew or should have known about the discrimination and refused to take rem ed ial action. Dici v. Commonwealth, 91 F.3d 542, 553 (3d Cir. 1996). D r. Gerstadt has named five physicians--Drs. Fitzgibbons, Lapos, Ryan-Mitlyng, V a n b ra k le , and Hart--who were involved in various parts of the application process. Each purportedly has supervisory authority.7 The defendants claim that the complaint's fa ctua l allegations are insufficient for the individual liability claims. (Def.'s Mem. at 21.) Upon review of the complaint, I will grant the motion as to the claims raised against Dr. F itz g i b b o n s and will deny it with respect to the remaining individual defendants. 1 ) Claims against Dr. Fitzgibbons I will dismiss the claim against Dr. Fitzgibbons. The complaint does not allege th a t he aided or abetted in any discrimination against Dr. Gerstadt. Dr. Fitzgibbons' in v o lv e m e n t is limited to his failure to attend the credentialing committee meeting. (See A m . Compl. 4548.) Equally important then is that he took no role in deciding w h e th e r to accept or deny her application. He is not alleged to have taken any other steps to oppose Dr. Gerstadt's credentialing. Without more, the complaint only states that Dr. F itz g ib b o n s failed to attend a meeting. No argument or allegation is made as to how that a b s e n c e aided and abetted discriminatory activities. Dr. Fitzgibbons is Chair of the Department of Medicine for the Health Network. (Am. Compl. 9.) Dr. Lapos is President of the Medical Staff for the Health Network. (Id. 10.) Dr. Ryan-Mitlyng is Medical Director of the Physician Group. (Id. 12.) Dr. Vanbrakle is Chair of the Credentialing Committee for the Health Network. (Id. 11.) Dr. Hart is Vice President of Medical Staff Services for the Physician Group. (Id. 13.) -16- 7 2 ) Claims against remaining physicians I will deny the motion as to the remaining individual defendants. Whether the c o m p l a in t presented sufficient facts for these remaining claims is a close question because e a ch doctor's role is described but not concretely tied into the discrimination. Drawing re a so n a b le inferences in Dr. Gerstadt's favor, I find that the complaint presents sufficient f a c ts to state a claim and to give notice to each defendant. A s the first interviewer who witnessed the severity of Dr. Gerstadt's morning s ic k n e ss , Dr. Lapos allegedly began the pattern of discrimination. (Am. Compl. 2 8 3 3 .) The court was not presented any information as to content of Dr. Lapos' re c o m m e n d a tio n . Consequently, how exactly she discriminated against Dr. Gerstadt was n o t made clear, but the application process began to go poorly around that point. (Pl.'s O p p 'n Mem. at 1011.) According to the complaint, Dr. Ryan-Mitlyng lied and mischaracterized one of D r. Gerstadt's references. Even after up to seven positive recommendations were s u b m itte d on Dr. Gerstadt's behalf, Dr. Ryan-Mitlyng still did not support her application. (Am. Compl. 3741.) Later on, Dr. Ryan-Mitlyng also sent a letter on behalf of L V ID S stating that the offer of employment had been withdraw because she was not g ra n te d staff privileges at the hospital. (Id. 4951.) D r. Vanbrakle's alleged participation is linked to his position as chair of the C re d e n tialin g Committee Though he initially "[saw] no problem with the application," it w as denied anyway. (Id. 4243.) -17- D r. Hart sent a letter on behalf of the hospital stating that her application was c o n sid e re d withdrawn because LVIDS had withdrawn its offer of employment. A t this stage, these claims are tenuous and border on being unacceptably s p e c u la tiv e . Discovery may yet yield firmer support for allowing them to go forward or d is m is s in g them entirely. Accepting the plaintiff's allegations as true, I find that the c o m p la in t sets forth sufficient facts to state claims against Drs. Lapos, Ryan-Mitlyng, V a n b ra k le, and Hart. I V . Conclusion F o r the foregoing reasons, I will grant the motion in part and deny it in part. An a p p r o p r ia te Order follows. -18- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KIMBERLY GERSTADT, Plaintiff v. LEHIGH VALLEY INFECTIOUS: DISEASE SPECIALISTS, et al., Defendants : : : : : : : ORDER STENGEL, J. AND NOW, this 30th day of March, 2009, upon consideration of the defendant's partial motion to dismiss (Document #8) and the plaintiff's response thereto, it is hereby ORDERED that the motion is GRANTED, in part, and DENIED, in part, as follows: (1) (2) The plaintiff's request for leave to file out of time is GRANTED; The defendant's motion to dismiss the retaliation and hostile work environment claims contained in Count II is GRANTED, and those claims are DISMISSED; (3) The defendant's motion to dismiss Count III (Breach of Contract) is GRANTED, and Count III is DISMISSED; (4) The defendant's motion to dismiss the plaintiff's request for punitive damages with respect to Counts II and III is DISMISSED as moot;1 (5) The defendant's motion to dismiss Count IV (Tortious Interference with Contractual Relations) is DENIED; (6) The defendant's motion to dismiss Count II, as against Dr. John Fitzgibbons, is GRANTED. The Clerk shall terminate Dr. Fitzgibbons as a party in this matter; The plaintiff made no claim for punitive damages for Count II, and Count III has been dismissed. 1 CIVIL ACTION NO. 08-4869 (7) The defendant's motion to dismiss Count II, as against Drs. Linda Lapos, Theresa Ryan-Mitlyng, John Vanbrakle, and John Hart, is DENIED. BY THE COURT: /s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.

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