                                                                       FILED
                                                                   NOVEMBER 18,2014
                                                                 In the Office of the Clerk of Court
                                                               W A State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

VENKATARAMAN SAMBASIVAN,                           )
                                                   )    No. 31858-3-111
                      Appellant,                   )
                                                   )
       v.                                          )
                                                   )
KADLEC MEDICAL CENTER, a                           )
corporation,                                       )    PUBLISHED OPINION
                                                   )

                      Respondent.                  )


       SIDDOWAY, C.J. - Dr. Venkataraman Sambasivan appeals a second summary

judgment dismissal of his claims that Kadlec Medical Center retaliated against him for a

discrimination lawsuit he filed against the hospital in June 2008. In this court's opinion

in Sam bas ivan v. Kadlec Medical Center, noted at 171 Wn. App. 1013,2012 WL

5208657, at *5, we reversed the trial court's first dismissal of the claims, concluding that

"both parties have presented competing evidence and inferences to be drawn" from

evidence bearing on a causal link between Dr. Sambasivan's lawsuit and Kadlec's

adoption and retroactive application of a proficiency standard that rendered him ineligible

for renewal of his interventional cardiology privileges. We held that it was "appropriate

for the trier of fact to resolve the issue." Id.
No. 31858-3-111 

Sambas ivan v. Kadlec Med. Ctr. 



       Following remand, Kadlec moved for summary judgment on a basis that had been

urged in part in its first motion. It argued that Dr. Sambasivan had not identified a

contract or employment relationship that would support a retaliation claim and, even ifhe

had, could not show interference with the relationship. The trial court granted the motion

and again dismissed Dr. Sambasivan's retaliation claims.

       Central to Kadlec's argument in support of the second dismissal is the fact that it

retained total discretion to delineate physician privileges. But even if Kadlec has

legitimately taken care to reserve its right to exercise discretion for a good reason, a bad

reason, or no reason, the harm it is alleged to have caused for an illicit reason falls within

the broad scope of 42 U.S.C. § 1981 and RCW 49.60.210(1). We once again reverse and

remand the claims for trial.

                     FACTS AND PROCEDURAL BACKGROUND

       Facts relevant to this second appeal are largely drawn from our opinion in the first.

Venkataraman Sambas ivan, a native of India, is a board certified interventional

cardiologist with a private practice in the Tri-Cities. Kadlec, which operates a hospital in

Richland, granted staff privileges to Dr. Sambasivan in 2001.

       In 2008, Dr. Sambasivan's clinical privileges were up for renewal. In anticipation

of its decision on renewal, the hospital-which had suspended Dr. Sambasivan's

privileges and proctored him over concerns in the past-hired an outside professional to

review cases of the four interventional cardiologists then on staff. During this process

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Sambasivan v. Kadlec Med. etr. 



Dr. Sambasivan began to suspect he was being treated differently by the hospital than the

other three interventional cardiologists. For that reason, and because he alone among the

interventional cardiologists had not been paid to provide call coverage, l he sued Kadlec

in June 2008, alleging national origin discrimination and five other claims.

       Kadlec's board of directors met on August 14, 2008. At that meeting, the board

discussed the fact that Dr. Sambasivan had filed the lawsuit. The board also discussed a

recommendation made by Kadlec's Medical Executive Committee (MEC) that Dr.

Sambas ivan be reinstated, but that his acute and emergent surgical procedures be

restricted. The board rejected the recommendation and voted to reinstate Dr. Sambasivan

without the restrictions.

       The board also acted at the meeting on a recommendation that all interventional

cardiologists perform a minimum of 150 interventional procedures every two years as a

condition to retaining or obtaining interventional cardiology hospital privileges. The

volume-based proficiency standard is approved by the American College of Cardiologists

and the American Heart Association. Kadlec's Medical Staff Quality Committee and its

MEC both recommended that physicians with existing privileges be given a year to come




       I Kaldec's medical staff bylaws and agreements contemplate an emergency room
rotation "call" schedule under which interventional cardiologists are assigned
responsibility for 24-hour call periods in which they are required to furnish emergency
medical/surgical services to medical center patients as needed.

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Sambas ivan v. Kadlec Med. Ctr. 



into compliance with the new proficiency standard. The board instead chose to give the

proficiency standard immediate effect and applied it retroactively.

       Dr. Sambasivan was the only interventional cardiologist on staff who failed to

meet the standard as retroactively applied. He was ineligible for renewal of his

interventional cardiology privileges as a result. Dr. Sambasivan remained on Kadlec's

medical staff with privileges to practice noninterventional cardiology.2

       In 2009, Dr. Sambasivan amended his complaint, dropping his discrimination

claim and adding federal and state claims of retaliation. In support of his retaliation

claims, he alleged that he had brought an action for damages, including on grounds of

unlawful discrimination, and

               32.    In retaliation against the plaintiff for his complaint of
       unlawful discrimination, the defendant stripped him of his privileges to
       practice interventional cardiology at the defendant's medical facilities in
       Richland, Washington. This unlawful and retaliatory action occurred on
       August 14,2008.
               33.    By its unlawful, retaliatory action described above, the
       defendant has violated state and federal law prohibiting retaliation of the
       sort alleged above.
               34.    As a direct and proximate result of the defendant's retaliation
       alleged above, the plaintiff has been injured and has sustained economic
       and noneconomic damages.

Clerk's Papers (CP) at 6.




       2 In March 2012, Dr. Sambasivan voluntarily resigned his staff membership and
privileges.

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       In 2010, Kadlec moved for summary judgment dismissal of all of Dr.

Sambasivan's claims. The trial court granted the motion as to all of the doctor's claims

except his restitution claim for uncompensated call coverage. The restitution claim

proceeded to a bench trial at which Dr. Sambasivan prevailed and was awarded damages

and his attorney fees related to that claim. The hospital was awarded attorney fees on

other claims that it had succeeded in having dismissed.

       Both parties appealed. In this court's October 2012 opinion, we reversed the trial

court's dismissal of Dr. Sambasivan's federal and state retaliation claims and affirmed the

trial court in all other respects. In reversing dismissal of the retaliation claims we focused,

as the trial court had, on whether Dr. Sambas ivan had presented evidence from which a

reasonable jury could find a causal connection between his discrimination lawsuit and the

decision of the Kadlec board to adopt and retroactively apply a proficiency standard that

would render him ineligible for renewal of his interventional cardiology privileges.

Concluding that he had, we remanded the retaliation claim for trial.

       Following remand, the trial court conducted a telephonic status conference and

invited any further dispositive motions from the parties. Kadlec responded by moving for

summary judgment dismissal of Dr. Sambasivan's retaliation claims "because he has not

and cannot identify any contract or employment relationship between himself and Kadlec

that gives rise to a retaliation claim under federal or state law and, even if he could, he




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No. 31858-3-111 

Sambasivan v. Kadlec Med. Ctr. 



cannot show any interference with such a relationship." CP at 181. Following briefing

and argument, the trial court granted Kadlec's motion. Dr. Sambasivan again appeals.

                                        ANALYSIS

       Dr. Sambasivan's complaint alleges that Kadlec's actions "violated state and

federal law prohibiting retaliation." CP at 6. In moving for summary judgment, Kadlec

recognized that the doctor asserted a federal law retaliation claim under 42 U.S.C. § 1981

and a state law claim under Washington's Law Against Discrimination, chapter 49.60

RCW.

       Kadlec persuaded the trial court that to assert a federal retaliation claim, Dr.

Sambasivan must identify an impaired contractual relationship under which he has rights,

that Dr. Sambasivan "relies on the [medical staff] Bylaws to provide the contractual

nexus," and that the bylaws "cannot provide that nexus because (i) the Bylaws are not

contractual and (ii) even if they were, Kadlec has not interfered with or impaired the

Bylaws." CP at 188. It argued that to assert a state retaliation claim, Dr. Sambasivan

must show that retaliatory action was "taken in the context of either an employment

relationship or ... an independent contractor relationship by which the plaintiff

performed personal services for the defendant," that Dr. Sambasivan had neither

relationship to Kadlec, and alternatively, that the board did not prevent the doctor from

continuing to be a member of the medical staff. CP at 200-01.




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    No. 31858-3-II1
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j

              In response, Dr. Sambasivan argued in the trial court that contrary to Kadlec's

    framing of his claims, he relies for his federal retaliation claim not on the medical staff

    bylaws, but on Kadlec's interference with his right to form contracts with patients and his

    contractual right or expectation of providing call coverage. He argued that the protection

    against retaliation provided by chapter 49.60 RCW applies more broadly than to

    employers, extending to those who contract with independent contractors and to any

    other person who discriminates against an individual who opposes a practice forbidden

    by chapter 49.60 RCW.

              We review summary judgment decisions de novo, performing the same inquiry as

    the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853,860,93 P.3d 108

    (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Summary

    judgment will be upheld if the pleadings, affidavits, answers to interrogatories,

    admissions, and depositions establish that there is no genuine issue of material fact and

    that the moving party is entitled to judgment as a matter of law. Jones v. Allstate Ins.

    Co., 146 Wn.2d 291,300-01,45 P.3d 1068 (2002); CR 56(c). We review all facts and

    reasonable inferences from the facts in a light most favorable to the nonmoving party. Id.

    at 300.

              Given our decision in the prior appeal, our review proceeds from the premise that

    Dr. Sambasivan can demonstrate that the board's adoption and application of the

    proficiency standard was motivated by racial animus.

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    Sambas ivan v. Kadlec Med. Ctr. 



                                          1. Law ofthe case

           Before arguing that he asserts viable retaliation claims, Dr. Sambasivan raises the

    "law of the case" doctrine as a threshold issue, arguing that the trial court should never

    have entertained a second summary judgment motion in light of this court's 2012 directive

    that it was "remand[ing] that claim for trial." 2012 WL 5208657, at >I< 12. "'Where there

    has been a determination of the applicable law in a prior appeal, the law of the case

    doctrine ordinarily precludes redeciding the same legal issues in subsequent appeaL'"

    State v. Worl, 129 Wn.2d 416, 425,918 P.2d 905 (1996) (quoting Folsom v. County of

    Spokane, III Wn.2d 256, 263, 759 P.2d 1196 (1988)). We may also refuse under the

    doctrine to address issues that could have been raised in a prior appeal. State v. Elmore,

    154 Wn. App. 885, 896,228 P.3d 760 (2010) (citing Folsom, III Wn.2d at 263-64).

    Kadlec could have asked us to affirm partial summary judgment on the issue of whether

    medical staff bylaws create a contractual relationship between the hospital and members

    of staff, but did not. 3 See LaMon v. Butler, 112 Wn.2d 193,200-01, 770 P.2d 1027 (1989)

    (an appellate court may sustain a trial court's summary judgment upon any theory

    established by the pleadings and supported by the proof, even if the trial court did not



           3 Instead, Kadlec merely touched on that issue in a footnote, observing that
    "'[s]hould this Court decide to reach the issue of whether hospital medical staff bylaws
    create an enforceable contract, Kadlec maintains they do not.'" Br. ofResp't at 18
    (emphasis added), It then provided a clerk's papers' citation to its briefing in the trial
    court.

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No. 31858-3-111
Sam bas ivan v. Kadlec Med. Ctr.


consider it). Dr. Sambasivan asks us to follow cases that have applied the law of the case

doctrine to refuse to consider questions that "might have been determined." Miller v.

Sisters oiSt. Francis, 5 Wn.2d 204,207, 105 P.2d 32 (1940) (citing Perrault v. Emporium

Dep't Store Co., 83 Wash. 578,145 P. 438 (1915)), overruled in part on other grounds by

Pierce v. Yakima Valley Mem. Hosp. Ass'n, 43 Wn.2d 162,260 P.2d 765 (1953).

       Most of the decisions relied upon by Dr. Sambas ivan are distinguishable as

involving an appellate court's refusal in a second appeal to revisit an issue that was

squarely presented and decided in the first. E.g., Baxter v. Ford Motor Co., 179 Wash.

123, 125,35 P.2d 1090 (1934); Columbia Steel Co. v. State, 34 Wn.2d 700, 706,209 P.2d

482 (1949). Other second appeals that he cites followed a first appeal from the result of a

trial, making it reasonable to say, as to issues that could have been raised following the

first trial but were not, that "[t]he law of the case[,] as applied to the same facts, shown

by the same evidence, was thus settled for all time." Perrault, 83 Wash. at 582; Miller, 5

Wn.2d at 208. But here, the first appeal was from a summary judgment motion that was

addressed to limited issues. The trial court resolved the motion on even more narrow

grounds. We note that unlike CR 12(g), which requires the consolidation of certain

motions to dismiss, CR 56 does not require a party to consolidate its grounds for

summary judgment in a single motion.

       In any event, the law of the case is a discretionary doctrine. Folsom, 111 Wn.2d at

263-64; cf RAP 2.5( c)(1) (the appellate court "may" review and determine the propriety

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No. 31858-3-III 

Sambas ivan v. Kadlec Med. Ctr. 



of a trial court decision even though a similar decision was not reviewed in an earlier

review of the same case). We need not decide whether or when the appeal ofa

dispositive motion presents a potential barrier to subsequent appeals. In this case, we will

consider the issue on the merits.

                            II. Retaliation under 42 Us.c. § 1981

       In its original form, 42 U.S.c. § 1981 was part of § 1 of the Civil Rights Act of

1866. 4 The purpose of the Reconstruction Era legislation was to grant civil rights to

newly freed slaves. The United States Supreme Court has pointed out that "[t]hat section

was cast in sweeping terms:"

              "Be it enacted by the Senate and House ofRepresentatives ofthe
      United States ofAmerica in Congress assembled, That all persons born in
      the United States and not subject to any foreign power, ... are hereby
      declared to be citizens of the United States; and such citizens, of every race
      and color, without regard to any previous condition of slavery or
      involuntary servitude, ... shall have the same right, in every State and
      Territory in the United States, to make and enforce contracts, to sue, be
      parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey
      real and personal property, and to full and equal benefit of all laws and
      proceedings for the security of person and property, as is enjoyed by white
      citizens, and shall be subject to like punishment, pains, and penalties, and to
      none other, any law, statute, ordinance, regulation, or custom, to the
      contrary notwithstanding."

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-23, 88 S. Ct. 2186, 20 L. Ed. 2d 1189



       4Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27, re-enacted by § 18 of the Force Act
of 1870, Act of May 31, 1870, ch. 114, § 18, 16 Stat. 140, 144, and codified in §§ 1977
and 1978 of the Revised Statutes of 1873-74, now 42 U.S.C. §§ 1981 and 1982.

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No. 31858-3-111 

Sambas ivan v. Kadlec Med. Ctr. 



(1968) (alterations in original) (quoting § 1 of the 1866 act). It is well settled that the

Civil Rights Act of 1866 prohibited private as well as public racial discrimination, and

that the prohibition of private discrimination was within Congress' power under § 2 of

the Thirteenth Amendment. Runyon v. McCrary, 427 U.S. 160, 170, 96 S. Ct. 2586, 49

L. Ed. 2d 415 (1976).

       As presently codified, § 1981(a) provides in relevant part that "[a]ll persons within

the jurisdiction of the United States shall have the same right in every State ... to make

and enforce contracts ... as is enjoyed by white citizens." Section 1981 not only protects

a plaintiffs right to respond to an existing offer of a contract, it also provides a remedy

where a defendant's action prevents a plaintiff from obtaining contracts. As pointed out

in McCrary, discussing the Court's earlier decision in Jones,

       Just as in Jones a Negro's § 1 right to purchase property on equal terms
       with whites was violated when a private person refused to sell to the
       prospective purchaser solely because he was a Negro, so also a Negro's § 1
       right to "make and enforce contracts" is violated if a private offeror refuses
       to extend to a Negro, solely because he is a Negro, the same opportunity to
       enter into contracts as he extends to white offerees.

427 U.S. at 170-71.

       The meaning of "make and enforce contracts" for purposes of § 1981 was

broadened by Congress by the Civil Rights Act of 1991, in response to a decision by the

United States Supreme Court that construed § 1981 as having no application to "conduct

which occurs after the formation of a contract and which does not interfere with the right


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       Sambas ivan v. Kadlec Med. Ctr.


       to enforce established contract obligations." Patterson v. McLean Credit Union, 491

I      u.s. 164, 171, 109 S. Ct. 2363,105 L. Ed. 2d 132 (1989).     Following the 1991 act,

       § 1981 (b) broadly defines "make and enforce contracts" for purposes of the statute as

       including "the making, performance, modification, and termination of contracts, and the

       enjoyment of all benefits, privileges, terms, and conditions of the contractual

       relationship." 42 U.S.C. § 1981(b). The statute encompasses claims based on retaliation

       as well as discrimination. CBOCS W, Inc. v. Humphries, 553 U.S. 442, 128 S. Ct. 1951,

       170 L. Ed. 2d 864 (2008). It requires proof of intentional discrimination; unlike actions

       under Title VII, proof of disparate impact is not enough. Gen. Bldg. Contractors Ass 'n v.

       Pennsylvania, 458 U.S. 375, 389,102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982).

              "Any claim brought under § 1981 ... must initially identify an impaired

       'contractual relationship,' § 1981(b), under which the plaintiff has rights." Domino's

       Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006).

       Kadlec's second motion for summary judgment contended that Dr. Sambasivan had

       failed to present evidence of any actionable impairment of a contract.

              Kadlec devotes the first part of its briefing to arguing that medical staff bylaws do

       not create a contract with members of the medical staff. It relies on cases from other

       jurisdictions, since no reported Washington case has addressed the issue. It suggests that

       we may affirm the trial court on the basis of the issue, because Dr. Sambasivan makes no

       effort to argue otherwise.

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No. 31858-3-111 

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       But we would not expect Dr. Sambasivan to address the contractual or

noncontractual character of the medical staff bylaws, since the bylaws are not the contract

or opportunity that he claims was impaired. He argues instead that he was injured in his

contractual rights and relations in two ways: he lost the capacity to contract to perform

emergency department call coverage services for the hospital, and he lost the capacity to

serve patients who would have come to him at Kadlec for interventional cardiology

consultations and procedures. It is only those impaired rights that we need address on

appeal.

       Kadlec argues that these two rights or opportunities to contract are also

insufficient to state a claim under § 1981.

                     A. Opportunity to contract to provide call coverage

       A doctor cannot practice medicine at Kadlec or use Kadlec's facilities and

equipment without first having been granted privileges in that doctor's field of medicine.

Kadlec medical staff appointments and conferrals of clinical privileges are for two-year

periods. Physicians on active medical staff whose privileges are expiring must submit a

reappointment application. Kadlec's bylaws provide that all medical staff appointments

and privilege delineations are subject to final review and decision by the governing body

of the hospital, which is Kadlec's board of directors. The bylaws provide that the

granting of privileges by Kadlec is completely within the board's discretion.




                                              13
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     No. 31858-3-III
1    Sam bas ivan v. Kadlec Med Ctr.


            Before 2004, cardiologists on staff at Kadlec took call without pay as a condition

     of having interventional cardiology privileges at the hospital. In 2004, a group of

     physicians successfully pressured Kadlec to pay some of its physicians for on-call time.

     On March 29, 2007, Kadlec entered into an Emergency Department Call Coverage

     Agreement for interventional cardiology with Dr. Sambasivan. 5 Under the contract, Dr.

     Sambasivan agreed to be available to provide services to the hospital's emergency

     department in accordance with a call schedule to be prepared by the chair of the

     Interventional Cardiology Department. In exchange, he would be paid $700 for each 24­
r

II   hour day of coverage. He would also have the sole right to bill for his professional

     services furnished to patients under the agreement. The contract was to run from April 1,

     2007 to March 31, 2008. The March 31, 2008 termination date was the day before Dr.

     Sambasivan's existing appointment was due to expire.

           When Dr. Sambasivan's clinical privileges came up for renewal in the spring of

     2008, he was granted temporary privileges until a recommendation and final decision

     could be made about his request for reappointment. Although his written call coverage

     agreement expired by its terms at the end of March 2008, the medical staff bylaws and

     agreements in the record support an inference for summary judgment purposes that the

     hospital's practice was to enter into emergency department call coverage contracts with


           5  Kadlec's failure to pay Dr. Sambasivan for call service he provided before the
     date of this contract was the basis of his restitution claim. 2012 WL 5208657, at *6-8.

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No. 31858-3-III 

Sambas ivan v. Kadlec Med. Ctr. 



every interventional cardiologist on the medical staff. Dr. Sambasivan's 2007 call

contract provides that "[i]fPhysician is a member of the active Medical Staff at the

Medical Center, Physician acknowledges that Physician has an obligation to provide

emergency call coverage in accordance with the Medical Center's Medical Staff Bylaws,

unless granted an exemption or waiver of such obligation." CP at 425. The medical

by laws provide, "Each physician, regardless of his/her assigned staff category, or

exercising of temporary privileges under Section 3.5, is expected to: ... (f) participate in

an emergency room on-call schedule and hospital consultation call schedule, if a member

of the active physician staff." CP at 254.

       When Dr. Sambas ivan became ineligible for renewal of his interventional

cardiology privileges after the Kadlec's board adopted the retroactively applied volume

proficiency standard, he ceased to have the opportunity to accept call coverage contracts.

       As observed by the United States Supreme Court in Domino's Pizza, 546 U.S. at

476, the impaired contractual relationship required to assert a § 1981 claim "need not

already exist, because § 1981 protects the would-be contractor along with those who

already have made contracts." Domino's Pizza makes clear that the Supreme Court has

       never retreated from what should be obvious from reading the text of the
       statute: Section 1981 offers relief when racial discrimination blocks the
       creation of a contractual relationship, as well as when racial discrimination
       impairs an existing contractual relationship, so long as the plaintiff has or
       would have rights under the existing or proposed contractual relationship.




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No. 31858-3-111
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Id. Dr. Sambasivan's evidence is sufficient to present a jury issue whether his

opportunity to enter into future call coverage contracts was lost when Kadlec took its

challenged action.

       Kadlec argues, however, that the doctor's loss of the contracting opportunity was

merely a "collateral consequence" of losing clinical privileges-and thereby an

insufficient contractual opportunity to support a claim under § 1981. Resp 't' s Br. at 27.

It relies upon three decisions: Jimenez v. WeliStar Health Systems, 596 F.3d 1304 (lith

Cir. 2010); Williams v. Columbus Regional Healthcare Systems, Inc., 499 F. App'x 928

(lIth Cir. 2012), cert. denied, 133 S. Ct. 2340 (2013), which is a per curiam decision

based entirely on Jimenez; and an unreported decision from a district court in Missouri,

Adem v. Jefferson Memorial Hospital Association, 2012 WL 5493856 (E.D. Mo. 2012),

that likewise relies on Jimenez.

       The plaintiff in Jimenez, a Black physician with a specialty in neurosurgery, sued

WellStar Health Services after its medical care evaluation committee suspended his

medical staff privileges. He asserted three impaired contractual rights: his "contractual

relationship with WellStar," his right to contract with patients and third-party payors, and

his property interest in his profession. Jimenez, 596 F.3d at 1309. The "contractual

,relationship with WellStar" that he relied upon was an alleged "implicit contract with

WellStar, pursuant to which WellStar agreed to grant Jimenez medical staff privileges and,

in tum, Jimenez agreed to treat patients at WellStar hospitals." Id. The Eleventh Circuit

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     Court of Appeals noted that WellStar's policies made clear that medical staff privileges do

     not confer contract rights, and that Georgia law was in accord. Id. It concluded that

     because the suspension of medical staff privileges did not directly implicate any

     contractual relationship, it could not be the basis of a § 1981 discrimination claim.

            The court then turned to Dr. Jimenez's contention that the suspension of his

     medical privileges impaired his opportunity to contract with patients and third-party

     payors, a claim that is analogous to Dr. Sambasivan's claim that the Kadlec board's

     adoption and retroactive application of a proficiency standard impaired his future

     opportunity to contract for call coverage. Jimenez rejects the claim that Dr. Jimenez's

     opportunities were impaired, offering the following reasoning:

            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 .... [A ]ny interference with
            Jimenez's relationships with WellStar's patients cannot provide the basis
            for his § 1981 claim. It is illogical that Georgia would grant WellStar the
            authority to suspend privileges to treat its patients while simultaneously
            obliging WellStar to allow Jimenez to contract with its patients for that
            treatment.

     Id. at 1310.

            Jimenez's rationale that future patient and third-party payor contracts relied on by

     Dr. Jimenez were "too speculative" has no application to Dr. Sambasivan's reliance in



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No. 31858-3-111
Sam bas ivan v. Kadlec Med. Ctr.


this case on future call coverage contracts. As already discussed, Dr. Sambasivan's

evidence of Kadlec's bylaws and practice is sufficient to create a jury question as to

whether he would have continued to be offered call coverage contracts had the board's

action not rendered him ineligible for interventional cardiology privileges.

       The remaining rationale of Jimenez, simply stated, appears to be this: if a

defendant's intentionally discriminatory action against a plaintiff is not itself a breach of

contract, then any other contract rights or opportunities that it impairs are not actionable

under § 1981. This is wrong under both the plain language of § 1981 and clear

precedent. Jimenez takes four facts, some bearing on contractual duty and others bearing

on tortious discrimination, and treats the wrong ones as dispositive. Four facts that

Jimenez, this case, and a number of other § 1981 cases have in common are that:

       The defendant took an action that adversely affected the plaintiff,

       The action was motivated by racial animus,

       The plaintiff has no contractual basis for challenging the defendant's action, and

       The defendant's action impaired the plaintiffs right and ability to enter into other

       contracts.

Jimenez treats the first and third facts-the defendant took an action adversely affecting

the plaintiff that the plaintiff has no contractual basis for challenging-as dispositive of

the § 1981 claim. But the third fact is irrelevant to a § 1981 claim. Section 1981




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provides a remedy for intentional discrimination that produces contractual impairment

whether or not the defendant breaches a contract in the process.

       Historical examples are illustrative. Sullivan v. Little Hunting Park, Inc., 396 U.S.

229,90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) provides one example of Jimenez's

misapplication of § 1981. Sullivan arose under 42 U.S.C. § 1982, a codification of other

protections included in the Civil Rights Act of 1866. The United States Supreme Court

has "long construed §§ 1981 and 1982 similarly." CBOCS, 553 U.S. at 447, 446 (relying

on Sullivan as presenting a "comparable question" because "similar to § 1981 except that

it focused ... [upon] rights related to the ownership of property"). Sullivan, the plaintiff,

leased a home that he owned in Fairfax County, Virginia, to a Black family and at the

same time attempted to assign to them his membership share in Little Hunting Park, Inc.,

a corporation that owned and operated a community park and playground facilities for the

benefit of county residents. A membership share entitled members of a shareholder's

family to use the recreation facilities. Under the corporation's bylaws, a person owning a

membership share was entitled when renting his home to assign the share to his tenant,

"subject to approval of the board of directors." Sullivan, 396 U.S. at 234.

       The Little Hunting Park board refused to approve Sullivan's attempted assignment

to his tenant, and, when he protested, expelled him, tendering him cash for his shares.

The refusal to approve the assignment was within the board's power under the

corporation's bylaws and the expulsion was likewise "backed by [the] state court

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     No. 3 1858-3-III
     Sambas ivan v. Kadlec Med. Ctr.
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     judgment." Id. at 237. Yet whatever validity the board's two actions had under the

     bylaws, its refusal to approve the assignment of the membership share was "clearly an

     interference with [the Black tenant's] right to 'lease,'" and the expulsion was punishment

     for trying to vindicate the rights of minorities protected by the statute. Id. Given the

     allegation of racial animus, both collateral impairments were actionable under § 1982.

            A second example is the United States Supreme Court's decision in Patterson, in

     which it narrowly construed the meaning of "make and enforce contracts." The plaintiff

     in Patterson, a Black woman employed as a teller with the defendant credit union,

     alleged that on account of her race she was harassed during her employment, passed over

     for a promotion, and eventually laid off. She made no allegation that the credit union

     breached any contract right of hers in passing her over for promotion or laying her off.

     Although the Supreme Court's narrow construction of § 1981 caused it to conclude that

     her harassment- and layoff-based claims were properly dismissed (thereby leading to

     enactment of the Civil Rights Act of 1991), it held that her "failure to promote" claim did

     state a cause of action under § 198 I-regardless of the fact that it was a collateral

     consequence of a layoff that she could not attack on contract grounds. "[T]he question

     whether a promotion claim is actionable under § 1981 depends," the Court said, "upon

     whether the nature of the change in position was such that it involved the opportunity to

     enter into a new contract with the employer. If so, then the employer's refusal to enter

     the new contract is actionable under § 1981." Patterson, 491 U.S. at 185.

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Sambas ivan v. Kadlec Med. Ctr.


       By the Jimenez court's reasoning, it was "illogical" that the credit union had the

right to lay off Ms. Patterson, while simultaneously being required to consider her for a

promotion. But there is nothing illogical about it. Jimenez fails to recognize that

individuals like Dr. Jimenez and Ms. Patterson can have contracts with parties who then

intentionally inflict direct or indirect harm on them, based on racial animus-and the

discrimination victim's contract provides no protection whatsoever from that

discriminatory act or the resulting harm. Accordingly, an act that might be contractually

permissible for a defendant is still actionable under § 1981 if discriminatory intent and

the required harm can be proved.

       These cases illustrate the proper application of § 1981 and other civil rights

protections addressed by the 1866 act. Better-reasoned decisions recognize that a

physician may assert a § 1981 claim where a denial of privileges or credentialing, based

on race or national origin, impairs his or her contract rights or opportunities. In Vakharia

v. Swedish Covenant Hospital, 765 F. Supp. 461, 471-72 (N.D. Ill. 1991), the court held

that an anesthesiologist's claims that a hospital limited her to a limited number of

procedures and removed her from call schedule "seem to fall easily within the rubric of

proscribed conduct" under § 1981. In Morrison v. American Board ofPsychiatry &

Neurology, Inc., 908 F. Supp. 582, 588-89 (N.D. Ill. 1996) the court refused to dismiss a

§ 1981 claim based on a denial of board certification in psychiatry that was alleged to

interfere with the plaintiff s ability to contract.

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Sambas ivan v. Kadlec Med. etr. 



                        B. Opportunity to contract with future patients

       The second contract right or opportunity that Dr. Sambasivan contends was

impaired by Kadlec's adoption and retroactive application of the proficiency standard

was his ability to serve patients who would have come to him at Kadlec for interventional

cardiology consultations and procedures. In resisting summary judgment, he identified

five patients who he had to direct to other interventional cardiologists. 6 Kadlec responds

by arguing (1) that Dr. Sambasivan remained on the medical staff with privileges in

general cardiology; (2) that he could perform interventional procedures at any hospital

where he held interventional privileges, such as Deaconess Medical Center in Spokane;

and (3) that even if Dr. Sambasivan enjoyed rights or opportunities for such contracts, the

lost benefit of the contracts was a collateral consequence of the sort held by Jimenez not

to be actionable under § 1981. Br. of Resp't at 29.

       Addressing Kadlec's last argument first, we have already rejected Jimenez's

reasoning that no § 1981 claim lies against a defendant who acts with racial animus and

thereby causes the impairment of a plaintiffs contract rights or opportunities, as long as

the defendant's act was contractually permitted. We reject the argument here as well.



       6 Kadlec argues that in response to discovery Dr. Sambasivan asserted that lost
patient relationships were not relevant and refused to produce documentation. Br. of
Resp't at 29. It overlooks the fact that while the doctor initially objected on that basis
and by citing patient confidentiality, he later answered the questions after losing his
motion for a protective order.

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Sam bas ivan v. Kadlec Med. Ctr. 



       Kadlec's argument that Dr. Sambasivan still enjoyed general cardiology privileges

is nonresponsive to Dr. Sambasivan's contention that his ability to serve patients who

would have come to him at Kadlec for interventional cardiology consultations and

procedures was impaired. The doctor does not argue that he is entitled to recover for

impairment of contracts to provide general cardiology services.

       Finally, the argument that Dr. Sambasivan could have traveled 150 miles from his

Tri-Cities-based practice to provide interventional cardiology services to patients in

Spokane, or could have traveled elsewhere, ignores the plain language of § 1981 that

"[a]ll persons within the jurisdiction of the United States shall have the same right . .. to

make and enforce contracts ... as is enjoyed by white citizens." 42 U.S.C. § 1981(a)

(emphasis added). Arguing that a physician may practice his medical specialty at the

hospitals that do not discriminate against him is not a defense to a § 1981 claim, for

reasons that were explained by the United States Supreme Court in Jones. There, the

Court pointed out that racially-based restrictive covenants at issue in its 1948 decision in

Hurdv. Hodge, 334 U.S. 24,68 S. Ct. 847,92 L. Ed. 1187 (1948) had covered only two-

thirds of the lots of a single city block, and that preventing Blacks from buying or renting

homes in that specific area would not have rendered them ineligible to do so elsewhere in

the city. "Thus," Jones explained,

       if § 1982 had been thought to do no more than grant Negro citizens the
       legal capacity to buy and rent property free of prohibitions that wholly
       disabled them because of the race,judicial enforcement of the restrictive

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     No. 31858-3-111 

     Sambas ivan v. Kadlec Med. Ctr. 



            covenants at issue would not have violated § 1982. But this Court took a
            broader view of the statute. Although the covenants could have been
            enforced without denying the general right of Negroes to purchase or lease
            real estate, the enforcement ofthose covenants would nonetheless have
            denied the Negro purchasers "the same right 'as is enjoyed by white
            citizens .... '" [Hurd,] 334 U.S. at 34,68 S. Ct. at 852,92 L. Ed. at 1194.
            That result, this Court concluded, was prohibited by § 1982. To suggest
            otherwise, the Court said, "is to reject the plain meaning oflanguage."
            Ibid.

     Jones, 392 U.S. at 418-19.

            Dr. Sambasivan's evidence presented a jury question of impairment supporting a

     § 1981 claim. It was error for the trial court to grant summary judgment dismissing it.

                             Ill.   Retaliation under RCW 49.60.210(1)

            RCW 49.60.210(1) provides:

            It is an unfair practice for any employer, employment agency, labor union,
            or other person to discharge, expel or otherwise discriminate against any
            person because he or she has opposed any practices forbidden by this
            chapter, or because he or she has filed a charge, testified, or assisted in any
            proceeding under this chapter.

     To maintain a retaliation claim under the Washington Law Against Discrimination

     (WLAD), chapter 49.60 RCW, a plaintiff must establish that (1) he participated in a

     statutorily protected activity, (2) an adverse employment action was taken against him,

     and (3) his activity and employer's adverse action were causally connected. Hollenback

     v. Shriners Hosps. For Children, 149 Wn. App. 810, 821,206 P.3d 337 (2009). The

     plaintiff need not show that retaliation was the only or "but for" cause of the adverse




                                                  24
No. 31858-3-111 

Sambas ivan v. Kadlec Med. Ctr. 



employment action, but he or she must establish that it was at least a substantial factor.

Allison v. Housing Auth. o/City o/Seattle, 118 Wn.2d 79,85-96,821 P.2d 34 (1991).

       In its second summary judgment motion, Kadlec argued that for purposes of his

state law claim, Dr. Sambasivan was required to demonstrate that Kadlec was his

employer, or, citing Marquis v. City o/Spokane, 130 Wn.2d 97, 112-13,922 P.2d 43

(1996), that he was in an independent contractor relationship by which he performed

personal services for Kadlec.

       By its terms, RCW 49.60.210(1) broadly states that it is an unfair practice "for any

... person to discharge, expel, or otherwise discriminate against any person because he

or she has opposed any practices forbidden by this chapter." (Emphasis added.) Two

published Washington decisions have read the retaliation provision more broadly than the

construction urged by Kadlec.

       In 1997, the provision was held to apply to a former member ofa credit union who

was expelled as a member by the credit union's board after he provided a declaration

supporting an age- and gender-based discrimination lawsuit brought by credit union

employees. Galbraith v. TAPCD Credit Union, 88 Wn. App. 939, 946 P.2d 1242 (1997).

While recognizing that Washington cases interpreting the statute had generally involved

employee claims against employers, the Galbraith court identified several reasons for

construing it more broadly: first, RCW 49.60.21O's broad language that an unfair practice

committed by "any ... person" was actionable; second, the fact that chapter 49.60 RCW

                                             25 

No. 31858-3-II1 

Sambas ivan v. Kadlec Med. Ctr. 



"covers many situations other than employment, such as credit, travel, insurance, real

estate transactions, etc." and that "[n]othing in its title or content limits the WLAD to

labor or employer-employee relations," id. at 950; and third, that a limited construction

"would be contrary to the Legislature's mandate to construe the WLAD liberally." Id. at

949 (citing RCW 49.60.020). It also pointed out that Galbraith's actions had been "labor­

related, albeit derivative." Id. at 951.

       A year later, the retaliation remedy was held to be unavailable to a plaintiff

attempting to sue a co-worker in Malo v. Alaska Trawl Fisheries, Inc., 92 Wn. App. 927,

930,965 P.2d 1124 (1998), but the court still read the statute more broadly than Kadlec

would have us read it. Reading the statute as a whole and applying the ejusdem generis

rule, the Malo court refused to construe it as providing a remedy against any person

whatsoever, but held that it was directed not only at employers but also

       at entities functionally similar to employers who discriminate by engaging
       in conduct similar to discharging or expelling a person who has opposed
       practices forbidden by RCW 49.60.

92 Wn. App. at 930.

       Here, Kadlec's Emergency Department Call Coverage Agreement had provided at

its article V that in performing services under the agreement, Dr. Sambasivan was acting

as an independent contractor, a relationship that was held in Marquis to be subject to the

protections of chapter 49.60 RCW. And under either Galbraith's or Malo's construction

ofRCW 49.60.210(1), Kadlec's denial of privileges, which directly affects the ability of

                                             26 

No. 3 1858-3-III 

Sam bas ivan v. Kadlec Med. Ctr. 



physicians to carry on their profession within the hospital, is sufficiently equivalent, or

derivative of a labor-related activity, to be actionable under the statute.

       For the foregoing reasons, Dr. Sambasivan demonstrated that both his federal and

state law claims present genuine issues of fact, requiring trial. It was error to enter

summary judgment.

                                      IV. Attorney fees

       Dr. Sambasivan requests attorney fees under RAP 18.1 and in accordance with the

governing federal and state civil rights statutes, 42 U.S.C. § 1988 and RCW 49.60.030(2).

Kadlec correctly contends that Dr. Sambasivan's request is premature, since the case has

not yet been tried on the merits. Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d

471,485,258 P.3d 676 (2011) (award of fees under RCW 49.60.030(2) must await

outcome of trial on the merits); Hewitt v. Helms, 482 U.S. 755, 759, 107 S. Ct. 2672, 96

L. Ed. 2d 654 (1987) (eligibility for attorney fees under § 1988 requires that plaintiff

receive at least some relief on the merits of his claim before he can be said to prevail).

       Reversed and remanded for trial.



WE CONCUR:



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