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March 25, 1985


Stanley S. Harris

The opinion of the court was delivered by: HARRIS

These three consolidated cases involve claims of discrimination and retaliation against Pratibha Joshi, M.D., who is a United States citizen of East Indian extraction, having her national origin in India, and belonging to the Asian-Pacific Islander minority classification. Dr. Joshi contends that she was discriminated against because of her race and color and retaliated against because she sought relief from the Equal Employment Opportunity Commission in 1980.

 The stage may be set briefly. As its name indicates, defendant Greater Southeast Community Hospital is a general hospital in the District of Columbia. It has a very active emergency room. When the events involved here began, the emergency room physicians there were not employed by the hospital. Instead, the emergency room physicians were employed by defendant Professional Health Services, Inc. (PHS). Three of the physicians who thus were employed by PHS to work in the hospital's emergency room were the plaintiff Joshi and defendants Celeste Szewczyk and Martha Gramlich.

 The Court turns now to an abbreviated description of the history of this litigation, which reveals its tangled and protracted procedural posture as well as the plaintiff's litigious nature.

 Dr. Joshi filed her first complaints with the Equal Employment Opportunity Commission in July 1980. Numbered 033-80-2092 and 033-80-9099, those complaints asserted claims under the Equal Pay Act and sought redress of grievances allegedly arising out of the denial of promotional opportunities and harassment on the job. The filing of those complaints became the basis of a retaliation claim, the first of the cases now before this Court, Civil Action No. 83-1073. That case originally was brought as Civil Action No. K-80-2621 in the United States District Court for the District of Maryland. It was filed in October 1980, when Dr. Joshi was informed, subsequent in time to her Equal Pay Act complaints, that her employment with the defendant PHS would be terminated. She then filed her first court action alleging racial discrimination under 42 U.S.C. § 1981 and conspiracy, motivated by class-based discriminatory animus, under 42 U.S.C. § 1985(3). The named defendants were PHS, a non-profit organization which, as noted, contracted with the Greater Southeast Community Hospital to provide medical services in the Department of Emergency Medicine from July 2, 1978, to July 1, 1981; Dr. Szewczyk, the Acting Chairman of the Department of Emergency Medicine at the hospital; and Dr. Gramlich, the Acting Vice Chairman of the Department. Following an EEOC finding of reasonable cause to believe the truth of Dr. Joshi's allegations of retaliation for the earlier complaints, the EEOC filed, in the District of Maryland, Civil Action No. K-80-2736 based on Title VII.

 On October 16, 1980, the District Court for the District of Maryland held a non-evidentiary hearing and consolidated the cases. See Joshi v. Professional Health Services, Inc., CA No. K-80-2621 (D. Md. Oct. 16, 1980) (Order). On October 25, 1980, the parties reached a settlement. On November 17, 1980, a consent order was entered which provided in significant part: (1) that Dr. Szewczyk and Dr. Gramlich were to be dismissed as defendants with prejudice; (2) that Dr. Joshi was to be reinstated; (3) that Dr. Joshi's personnel file was to be expunged of all material documenting complaints or incidents entered in such file subsequent to July 18, 1980; (4) that Dr. Joshi was to be awarded $ 9,900; and (5) that the parties were to "seek to ensure a satisfactory working relationship." See Joshi v. PHS, CA No. K-80-2621 (D. Md. Nov. 17, 1980) (Consent Order).

 The contract under which Dr. Joshi resumed work after her reinstatement specified that her compensation would be $ 30.47 per hour and that she would work an average of 40 hours per week. Less than one year later, the hospital decided not to renew its contract with PHS and to hire its own emergency room doctors. When it decided not to employ Dr. Joshi, she filed petitions seeking to have the defendants held in contempt of court and to seize her personnel file. Concomitant with those petitions, Dr. Joshi filed two new administrative complaints with the EEOC, numbered 033-81-1671 (against PHS), and 033-81-1672 (against the hospital), alleging unlawful discrimination and retaliation for the filing of the 1980 Equal Pay Act complaints. Consideration of those new complaints resulted in EEOC determinations that there was not reasonable cause to believe that the allegations were true. The EEOC thereafter issued two right-to-sue notices.

 On January 25, 1982, Dr. Joshi filed two new court actions in the District of Maryland based on the right-to-sue notices. They were Civil Action No. K-82-191 (now here as CA No. 83-1074) and Civil Action No. K-82-192 (now here as CA No. 83-1075). The named defendants were PHS, the hospital, Dr. Szewczyk, and Dr. Gramlich. In those actions, Dr. Joshi alleged violations of Title VII in retaliation for the 1980 charges she had made against PHS and the two doctors. For relief, Dr. Joshi asked that her employment at the hospital be continued, that her personnel file be expunged, and that she be awarded $ 300,000 in damages, back pay, employee benefits, attorneys' fees, and costs. Furthermore, she moved to reopen Civil Action No. K-80-2621 and to vacate the consent order.

 At a hearing on the three actions on March 21, 1983, plaintiff's counsel stated that Dr. Joshi was proceeding in Civil Action No. K-82-191 and Civil Action No. K-82-192 under both Title VII and § 1981. See Letter from Michael Schwartz to Judge Kaufman (October 17, 1980) (adding allegation that plaintiff is a member of the brown race). Defense counsel affirmatively stated that the defendants did not oppose what Judge Kaufman understood to be an oral, on the record amendment of the complaints to add the § 1981 claim. See Joshi v. PHS, CA No. K-80-2621 (D. Md. Apr. 13, 1983) (Memorandum and Order transferring case at 2 n.1). On March 29, Judge Kaufman ordered CA No. K-80-2736 (the EEOC's complaint) closed pursuant to the EEOC counsel's statement that there was no objections and that the EEOC proceedings were completed. Id. at 3. The court determined that disputed issues of material fact precluded summary judgment. The charges against Dr. Gramlich under Title VII in Civil Actions No. K-82-191 and K-82-192 were dismissed for lack of subject matter jurisdiction. Id. at 14. The court then transferred the three remaining open cases of Dr. Joshi (Nos. K-80-2621, K-82-191, and K-82-192) to the United States District Court for the District of Columbia.

 Those cases now are before this court as No. 83-1073 (formerly No. K-80-2621), referred to as "the contempt proceedings" which allege violations of the consent order, and No. 83-1074 (formerly K-82-191) and No. 83-1075 (formerly K-82-192), together referred to as the Title VII actions which allege retaliation. PHS, Dr. Szewczyk, and the hospital are defendants in all three cases. Dr Gramlich is a defendant only in No. 83-1073, the contempt proceeding. In the contempt proceeding, Dr. Joshi seeks enforcement of the consent order through reinstatement and compensation. In the Title VII actions, she seeks injunctive relief mandating the renewal of her employment as an emergency room physician at Greater Southeast Community Hospital.

 It should be noted that contrary to the memorandum and order of Judge Kaufman in the District Court for the District of Maryland and the consolidated statement of the defendants pursuant to the court order of April 22, 1983, the plaintiff did not amend her complaints in Civil Actions No. 83-1074 and No. 83-1075 to allege discrimination or to allege a cause of action under 42 U.S.C. § 1981. Instead, CA No. 83-1074 is predicated on the ground of retaliation by the defendants for the plaintiff's actions in seeking to vindicate her rights against racial discrimination with the EEOC and with the court in CA No. K-80-2621. Civil Action No. 83-1075 alleges only retaliation by the hospital, aided by the other defendants, in the failure to continue the plaintiff's employment. See Plaintiff's memorandum in response to defendant's consolidated statement (May 25, 1983).

 The Contempt of Court Proceedings

 Rule 70 of the Federal Rules of Civil Procedure allows a court to adjudge a party in contempt for failure to perform a specific act as directed by a judgment. To be held in contempt, a party must have knowledge of the court's order, an ability to comply with that order, see WMATA v. Amalgamated Transit Union, 174 U.S. App. D.C. 285, 531 F.2d 617, 621 (D.C. Cir. 1976); Natural Resources Defense Council v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 713 (D.C. Cir. 1975), and the party must have directly violated a specific court order. See International Longshoremen's Association v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 19 L. Ed. 2d 236, 88 S. Ct. 201 (1967).

 Dr. Joshi claims that the defendants' failure to perform mandatory requirements of the consent order, the defendants' constant harassment of the plaintiff, and the defendant hospital's failure to hire the plaintiff were actions in contempt of the 1980 consent order. As the defendants point out, however, none of these is a direct violation of any provision of the consent order. The consent order is drafted in such general and inexact language that the plaintiff's contentions in effect are based on violations of inferred or imaginary requirements, not specific court orders. Prohibited conduct will not be implied. See Ford v. Kammerer, 450 F.2d 279, 280 (3d Cir. 1971). The Supreme Court has stated: "The judicial contempt power is a potent weapon. When it is founded upon a decree too vague ...

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