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                                                              [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14719
                      ________________________

                  D.C. Docket No. 1:13-cv-03534-ODE



RONALD E. MOORE, JR.,

                                             Plaintiff - Appellant,

versus

GRADY MEMORIAL HOSPITAL CORPORATION,
FULTON-DEKALB HOSPITAL AUTHORITY,
d.b.a. Grady Health System,
KENNETH J. CARNEY, M.D.,
RAPHEL GERSHON, M.D.,
KELVIN J. HOLLOWAY, M.D., et al.,

                                             Defendants - Appellees.

                      ________________________

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

                            (August 19, 2016)
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Before JORDAN and ANDERSON, Circuit Judges, and DALTON, * District
Judge.

JORDAN, Circuit Judge:

       Dr. Ronald E. Moore, Jr. appeals the district court’s dismissal of his claims

for race discrimination and retaliation in violation of 42 U.S.C. § 1981. Exercising

plenary review, see Shands Teaching Hospital & Clinics, Inc. v. Beech Street

Corp., 208 F.3d 1308, 1310 (11th Cir. 2000), and with the benefit of oral

argument, we affirm in part and reverse in part.

                                              I

       The complaint alleged the following facts.

                                             A

       Dr. Moore, an African-American male, is a licensed, board-certified general

surgeon and a specialist in laparoscopic and advanced robotic surgery. Sometime

in 2011, Morehouse School of Medicine recruited him to be part of its faculty.

       Prior to his appointment to the MSM faculty, Dr. Moore was required to

obtain clinical privileges at Grady Memorial Hospital. Dr. Moore applied for

privileges at Grady in August of 2012, and was granted them the following month.

Dr. Moore sought privileges to perform various laparoscopic procedures, including

several that are considered to be “foregut surgeries” that Dr. Moore performed to


       *
          The Honorable Roy B. Dalton, United States District Judge for the Middle District of
Florida, sitting by designation.
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treat reflux disease or to repair hiatal hernias. Grady’s standard application for

surgical privileges “does not contain the type of special surgical procedures [for

which] Dr. Moore sought privileges.” D.E. 1 at ¶ 19. Nevertheless, “Grady never

informed Dr. Moore, either in writing or verbally, that there were any deviations

from the clinical privileges granted,” and “no one ever instructed Dr. Moore to

refrain from any types of surgeries or imposed any limitations to the clinical

privileges granted to him.” Id. at ¶ 28.

      In October of 2012, Dr. Moore entered into an employment agreement with

MSM for a position as an assistant professor in the Department of Surgery. In

January of 2013, Grady entered into an affiliation agreement with MSM. The

agreement recognized that “the mission of MSM at Grady is to educate medical

students, train physicians, operate a faculty group medical practice, conduct

medical research and engage in efforts to improve healthcare for sick and injured

individuals.” Id. at ¶ 29. The affiliation agreement outlined how MSM and its

faculty would provide clinical services to Grady. It also set out the faculty’s

teaching responsibilities.

      Grady receives approximately $750 million from Fulton County and DeKalb

County, as well as other government and private sources, to sustain a clinical

practice. This money is then divided between Emory University’s School of

Medicine and MSM based on the clinical services these entities provide to Grady.


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Grady also refers uninsured or underinsured patients to outside physicians and

compensates those physicians for procedures as “fee for services.” Decisions

about when and where to send patients is controlled by Dr. Curtis Lewis, Grady’s

Chief Medical Officer and Executive Vice President.

                                               B

       In late April of 2013, Timothy Jefferson, Grady’s General Counsel,

approached Dr. Derrick Beech, Associate Dean at MSM, regarding several surgical

procedures performed by Dr. Moore.                 Grady was not compensated for these

surgeries because they were coded as bariatric procedures, i.e., procedures to

achieve weight loss, which were unauthorized because, according to a summary

suspension letter later received by Dr. Moore, Grady has no program in place to

support bariatric/weight loss surgeries for its patients. See D.E. 18-1.1

       Dr. Beech agreed to review the procedures performed by Dr. Moore. With

the exception of one case, Dr. Beech did not believe that Dr. Moore’s surgeries

were bariatric. Grady decided to have the cases examined by an outside reviewer.

In the meantime, the parties agreed that Dr. Moore would not perform gastric

bypass surgery, but that he could continue to perform sleeve gastrectomy for



       1
         According to the complaint, “gastric resection surgeries could be viewed as bariatric if
other medical concerns are not present.” D.E. 1 at ¶ 35. But “[b]ariatric procedures consistent
with the standard of care of obese patients and cosmetic weight loss procedures are not the
same.” Id. at ¶ 39.

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patients with morbid obesity and a clear diagnosis of gastroesophageal reflux

disease.

      In June of 2013, Dr. Moore met with Dr. Roseanne Pena—the acting

Director of the Operating Room at Grady—and another physician, and expressed

his concern that the Emory doctors were being given greater access to the

operating rooms at Grady as compared to the MSM doctors. For example, even

where the doctors from the two schools had the same number of cases, if there

were 18 operating rooms, the MSM doctors would be allotted two, and the Emory

doctors would be given 16.

                                        C

      Dr. Moore received a letter from Dr. Lewis on July 1, 2013, informing him

that his membership on Grady’s medical staff was summarily suspended due to his

continued performance of unauthorized surgical bariatric/weight loss procedures.

According to the letter, Dr. Moore had been advised on several occasions that such

procedures were not authorized at Grady and told to cease performing them. The

letter apprised Dr. Moore that his procedures were being reviewed externally and

that he would be given a hearing and appeal rights in accordance with Grady’s

medical staff bylaws.

      A July 5, 2013, letter from Dr. Kevin Holloway—the Deputy Senior Vice

President for Medical Affairs at Grady and an associate professor at MSM—


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confirmed that the basis for Dr. Moore’s summary suspension was the

unauthorized surgical bariatric/weight loss procedures, and outlined the steps that

would follow in the Medical Executive Committee’s review of the suspension.

According to the complaint, Dr. Moore never discussed ceasing bariatric

procedures with anyone at Grady or MSM prior to the specific surgeries referenced

in Dr. Holloway’s July 5 letter.

      Dr. Moore was invited to address the MEC when it met, but was not

permitted to be in the room while Dr. Lewis spoke to the MEC. Dr. Lewis

presented a much broader basis for Dr. Moore’s suspension than had been

communicated in the July 1 and July 5 letters, and introduced the results of the

external review of Dr. Moore’s procedures, which had not been shared with Dr.

Moore. By the time Dr. Moore entered the room, “the MEC had clearly decided

his fate.” D.E. 1 at ¶ 54. Further, “during the deliberation process, one or two

[MEC] members . . . made disparaging and unprofessional comments, which

evidence[d] racial animus and malice.” Id.

      The MEC decided to continue the suspension of Dr. Moore’s privileges.

Because Dr. Moore refused to resign his privileges at Grady’s urging, one or more

of its physicians filed complaints against him with the Composite State Medical

Board.




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      In October of 2013, Dr. Moore sued Grady, the Fulton-Dekalb Hospital

Authority d/b/a Grady Health System, and several individual physicians at Grady

(individually and in their capacities as members of the MEC).                He alleged

violations of 42 U.S.C. § 1981 (Counts I & II); 42 U.S.C. § 1983 (Count III); Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (Count IV); and 42

U.S.C. § 1986 (Count V). Dr. Moore also asserted two state-law claims, one for

violations of hospital bylaws (Count VI), and the other for intentional infliction of

emotional distress (Count VII). The district court granted the defendants’ Rule

12(b)(6) motion to dismiss the federal claims and declined to exercise jurisdiction

over the state-law claims. Dr. Moore’s appeal concerns only the § 1981 claims

asserted in Counts I and II.

                                           II

      To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain

sufficient factual allegations to “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Twombly, 550 U.S. at 556).




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                                         III

      “Among the many statutes that combat racial discrimination, § 1981 . . . has

a specific function: It protects the equal right of ‘[a]ll persons within the

jurisdiction of the United States’ to ‘make and enforce contracts’ without respect to

race.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474–75 (2006) (quoting

§ 1981(a)). The phrase “make and enforce contracts” is defined to include “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).

      Dr. Moore pursues two theories of liability under § 1981: discrimination by

Grady, the Hospital Authority, and the individual Grady physicians (Count I); and

retaliation by Grady and the Hospital Authority (Count II). We address each

theory in turn.

                                          A

      “To state a claim of race discrimination under § 1981, [a] plaintiff[ ] must

allege facts establishing: (1) that [he] is a member of a racial minority; (2) that the

defendant intended to discriminate on the basis of race; and (3) that the

discrimination concerned one or more of the activities enumerated in the statute.”

Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1270 (11th Cir. 2004) (citation

and footnote omitted).


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      It is undisputed that the complaint satisfied the first two elements. Dr.

Moore is a member of a racial minority, and, accepting his allegations as true, the

defendants do not challenge the claim that they intentionally discriminated against

him because of his race by, “among other things, diverting cases to white

physicians outside of Grady Hospital, failing to provide operating rooms to the

African American doctors to perform surgery, and by summarily suspending him

under false pretext for discrimination.” D.E. 1 at ¶ 77.

      The parties’ dispute centers on the third element. “Any claim brought under

§ 1981 . . . must initially identify an impaired ‘contractual relationship,’ § 1981(b),

under which the plaintiff has rights.” Domino’s Pizza, 546 U.S. at 476 (footnote

call number omitted). Dr. Moore relies on two different contracts to support his

§ 1981 claim: his employment contract with MSM, and the affiliation agreement

between Grady and MSM.

                                          1

      The first contractual relationship on which Dr. Moore premises his § 1981

claim is his employment contract with MSM.                See D.E. 1 at ¶ 78 (“The

discriminating actions of the Defendants impaired Dr. Moore’s agreement with

Morehouse School of Medicine . . . .”). The defendants do not dispute that this

agreement satisfies the “contractual relationship” requirement of § 1981. Indeed,

as the district court held, “§ 1981 allows [Dr. Moore] to state a claim against Grady


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for interference with existing contractual rights with MSM (a third party).” D.E.

44 at 15–16. And at oral argument, the defendants agreed that § 1981 provides a

remedy for a physician who has a contract with a third party if that contract is

impaired as a result of the suspension, revocation, or adjustment of his privileges at

the hospital, as long as the physician sufficiently alleges that the cause of that

impairment is racial animus. The defendants contend, however, that Dr. Moore’s

allegations are conclusory. We disagree.

      Because Dr. Moore bases his § 1981 claim on his contract with MSM, our

opinion in Jimenez v. WellStar Health System, 596 F.3d 1304 (11th Cir. 2010),

does not control. Jimenez involved a physician in Georgia who—like Dr. Moore—

believed that the suspension of his medical staff privileges was racially motivated.

The physician brought a § 1981 claim against the administrators, physicians, and

hospitals associated with WellStar Health System. Significantly, however, the

Jimenez physician did not have an actual employment contract with a third party

that was impaired by the defendants’ alleged discriminatory acts. Instead, one of

the contractual theories pursued by the Jimenez physician was that the suspension

of his privileges violated an “implicit contract” that he had with WellStar, whereby

WellStar agreed to grant him privileges and he agreed to treat patients at

WellStar’s hospitals. Id. at 1309. “Under such a theory, the staff privileges . . .

serve[d] as the consideration for the contract; they [did] not themselves create the


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contract.” Id. The revocation of his privileges, the Jimenez physician argued,

amounted to a breach of contract by WellStar, and because the revocation was for

allegedly discriminatory purposes, it violated § 1981. See id.

      We rejected this implied contract theory, concluding that WellStar’s policies

made clear that medical staff privileges did not confer any contractual rights upon

a physician, and that “Georgia law agree[d].” Id. We ruled that, “[u]nder Georgia

law, medical staff bylaws, which govern medical staff privileges, do not create a

contractual right to the continuation of those privileges.”      Id. (footnote and

citations omitted).   Furthermore, “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.” Id. at 1310.

      But here Dr. Moore is not arguing that his medical privileges constitute a

contract with Grady. Nor does he claim that they are the consideration for a

contract with Grady. Dr. Moore instead bases his § 1981 claim on an employment

contract he had with a third party, MSM, and is alleging that the suspension of his

medical privileges by Grady is but one of the discriminatory acts performed by the

defendants that interfered with his performance of his contract with MSM. On the

facts alleged in the complaint, there is no concern that Dr. Moore is

“circumvent[ing] Georgia’s clear rule that medical staff privileges cannot create




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contractual liability.” Id. Accordingly, we find that nothing in Jimenez precludes

Dr. Moore’s § 1981 discrimination claim.

      Despite recognizing that Dr. Moore’s contract with MSM constituted a

proper basis for the § 1981 claim, and made Dr. Moore’s case distinct from

Jimenez, the district court dismissed the § 1981 discrimination claim. The district

court relied on an unpublished Eleventh Circuit opinion, Williams v. Columbus

Regional Healthcare Systems, Inc., 499 F. App’x 928 (11th Cir. 2012), and, more

specifically, the underlying opinion from the district court in that case, Williams v.

Columbus Regional Healthcare Systems, Inc., No. 4:11-CV-28 (CDL), 2012 WL

315482 (M.D. Ga. Feb. 1, 2012). That reliance was understandable, but misplaced.

      Williams involved a situation, like Dr. Moore’s, where the physician had an

actual employment contract with a third party that was allegedly being impaired by

the defendant’s discriminatory actions. The district court ruled that “each of [the

physician’s] claims has as an essential factual predicate the termination of his

hospital privileges,” 2012 WL 315482 at *5, and, purportedly applying Jimenez,

held that “to survive a motion to dismiss, [the physician’s] claim against [the

defendant] must be based on conduct by [the defendant] that caused the Columbus

Clinic [the third party] to terminate him unrelated to the loss of his hospital

privileges.” Id. at *6 (emphasis added). The district court found the phsyician’s

remaining factual allegations, concerning how defendant interfered with his


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employment contract, too vague and conclusory “‘to raise a right to relief above

the speculative level.’” Id. at *7 (quoting Twombly, 550 U.S. at 555). A panel of

this Court affirmed the result in a brief opinion that did not appear to consider the

actual employment contract that distinguished the case from Jimenez.             See

Williams, 499 F. App’x at 929–30.

      The district court here, with some hesitation, followed Williams and

essentially ignored all of the factual allegations in the complaint relating to the

suspension of Dr. Moore’s privileges.          Focusing only on the remaining

discriminatory practices alleged by Dr. Moore—the assignment of operating rooms

and patient referrals—the district court concluded that Dr. Moore had failed to

sufficiently plead how the defendants’ conduct impaired his contract with MSM.

See D.E. 44 at 17 (“On the face of the Complaint, it is unclear that these practices,

absent the suspension of [Dr. Moore’s] medical privileges, had any effect on his

employment contract with MSM.”) (emphasis added). To the extent either opinion

in Williams (the district court order or the non-binding Eleventh Circuit opinion)

can be read to suggest that Dr. Moore cannot rely, as part of his § 1981 claim, on a

claim that the suspension of his medical privileges was a discriminatory act that

interfered with his contract with MSM, we reject that view as an improper and

unwarranted application of Jimenez.




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      Dr. Moore alleges that his contract with MSM was impaired by the

defendants’ intentionally discriminatory actions, which included summarily

suspending his privileges, diverting cases to white physicians outside of Grady,

and failing to provide operating rooms for surgery to the African-American doctors

of MSM. Dr. Moore alleges that these discriminatory acts impaired his contract

with MSM because, “[a]s part of his contract and employment with MSM, [he]

must have clinical privileges at a hospital in order to practice medicine and teach

residents.” D.E. 1 at ¶ 87. As Dr. Moore explains, without privileges (and,

presumably, without patients or operating rooms), “[h]e cannot teach residents nor

perform any clinical practice.” Id. Although the complaint is not a model of

clarity, we conclude that, at this stage of the case, it contains sufficient factual

allegations to support Dr. Moore’s § 1981 discrimination claim based on the

alleged impairment of his contract with MSM, and therefore survives the

defendants’ motion to dismiss. See, e.g., Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d

291, 294–95 (11th Cir. 1988) (holding that physician, who was dismissed from one

hospital’s residency program due to adverse recommendations by second hospital,

could sue second hospital under § 1981 on the theory that the adverse

recommendations were based on his race); Faraca v. Clements, 506 F.2d 956, 959




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(5th Cir. 1975) (“a third party’s interference with [contractual] rights guaranteed

under [§§] 1981 and 1982 will subject such a person to personal liability.”). 2

                                                2

       Dr. Moore also argues that the affiliation agreement between Grady and

MSM constitutes a second contractual relationship sufficient to support his § 1981

discrimination claim. According to Dr. Moore, “Georgia law requiring hospitals to

abide by their bylaws, and the Agreement between Grady and MSM, in which the

Medical Staff Bylaws are implicated in the disciplinary provisions governing

MSM faculty physicians, create an expectation of due process in the disciplinary

actions that can be undertaken by [d]efendants in regard to [his] property interests

in his hospital privileges.” Br. for Appellant at 33.

       The district court (generally adopting the magistrate judge’s report, which

was not objected to) rejected this argument. Because, under Georgia law, medical

staff bylaws do not create a contract or a contractual relationship, see Jimenez, 596

F.3d at 1309, and “physicians do not have a broad property interest in continuing

to practice medicine,” id. at 1310 (citation omitted), the district court concluded

that “the mere fact that the affiliation agreement refers to and incorporates the




       2
          Because we hold that the allegations in the complaint are sufficient to support a § 1981
claim based on the contract with MSM, we do not address Dr. Moore’s argument that the district
court erred by not allowing him to amend his complaint.
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bylaws does not otherwise create a protected property interest where there is

none.” D.E. 39 at 24; D.E. 44 at 21.

      In addition, the district court (again adopting the magistrate judge’s report)

concluded that, even if the affiliation agreement somehow created a protected

property interest in hospital staff privileges, Dr. Moore was not a party to the

affiliation agreement and, based on the terms of that agreement, he was also not a

third-party beneficiary with standing to assert any rights or enforce any terms

under the affiliation agreement. See D.E. 39 at 24–27. Specifically, the district

court relied on a provision in the affiliation agreement for “Third Party

Beneficiaries” that stated: “None of the provisions of this Agreement are or shall

be construed as for the benefit of or enforceable by any person not a Party to this

Agreement, except that [Emory] shall be treated as a third party beneficiary with

respect to the Agreement].” Id. at 26 (quoting the affiliation agreement, D.E. 18-3

at § 13.25).

      Dr. Moore did not object to the magistrate judge’s report on this issue.

Although in this particular case we review de novo “the magistrate judge’s

conclusions of law [as] they were accepted and adopted by the district court,”




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Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1308 (11th Cir. 2013) (citations

omitted), Dr. Moore’s argument merits little discussion.3

       The Supreme Court has recognized the possibility that a third-party intended

beneficiary of a contract may have rights protected by § 1981. See Domino’s

Pizza, 546 U.S. at 476 n.3. But this does not eliminate the statutory requirement

that the plaintiff be the one who “has or would have rights under the existing or

proposed contractual relationship.” Id. at 476. In Domino’s Pizza, for example,

the Supreme Court made clear that “[§] 1981 plaintiffs must identify injuries

flowing from a racially motivated breach of their own contractual relationship, not

of someone else’s.” Id. at 480 (emphasis added).

       On appeal, Dr. Moore has seemingly abandoned any argument that he is a

third-party intended beneficiary of the affiliation agreement between Grady and

MSM. In any event, “[s]imply because [Dr. Moore] [might have] benefited from

the performance of the contract” between Grady and MSM “does not afford [him]

third party beneficiary status.” Gilmour v. Gates, McDonald and Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (citation omitted). See also AT&T Mobility, LLC v.

Nat’l Ass’n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007)

       3
         This case was decided by the district court before the implementation of Eleventh
Circuit Rule 3–1, which took effect on December 1, 2014, and provides that “[a] party failing to
object to a magistrate judge’s findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to
challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions[.]”

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(“[T]he parties’ intention to benefit the third party must be evident from the face of

the contract.”) (citations omitted); Monroe v. Bd of Regents of Univ. Sys. of Ga.,

602 S.E.2d 219, 225 (Ga. Ct. App. 2004) (affirming finding that plaintiff was not a

third-party beneficiary because contract contained language that expressly limited

who had rights). Therefore, we affirm the dismissal of Dr. Moore’s § 1981 claim

premised on the affiliation agreement.

                                          B

      In Count II, Dr. Moore alleges that he “was retaliated against by . . . Grady

and the [Hospital] Authority in violation of § 1981 because of his opposition to the

discriminatory practices of . . . Grady and the [Hospital] Authority, which included

subjecting him and the other African-American physicians to limited surgery

facilities and support staff and the assignment of certain medical cases to white

Emory Doctors.” D.E. 1 at ¶ 98. “Within days of making his complaint about

[the] racially discriminatory treatment of the African American physicians from

MSM by Grady and the [Hospital] Authority,” his cases were subject to scrutiny

and he was ultimately summarily suspended. Id. at ¶ 97.

      “To establish a claim of retaliation under . . . [§] 1981, a plaintiff must prove

that he engaged in statutorily protected activity, he suffered a materially adverse

action, and there was some causal relation between the two events.” Goldsmith v.

Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (citation omitted).


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“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.”

Jimenez, 596 F.3d at 1311 (citations omitted).

         Jimenez held that, because the suspension of medical staff privileges in and

of itself does not implicate any rights protected by § 1981, a physician’s charge

with the Equal Employment Opportunity Commission regarding the suspension of

medical staff privileges could not form the basis of a § 1981 retaliation claim. See

id.   Jimenez also concluded that none of the physician’s other complaints to

hospital administrators regarding allegations of discriminatory treatment could be

construed to implicate a contract or property interest. See id. at 1311 n.5.

         The district court correctly distinguished Jimenez because Dr. Moore had an

independent contract with MSM, and did not assert an independent contractual

right in his medical privileges at Grady. Nonetheless, based on its previous ruling

concerning Dr. Moore’s § 1981 discrimination claim, the district court dismissed

the § 1981 retaliation claim. The district court concluded that Dr. Moore “fail[ed]

to plead sufficient facts to show that his contract [with MSM] was actually

impaired,” and, therefore, that he “necessarily fail[ed] to sufficiently plead that he

engaged in a protected activity when he opposed [d]efendants’ practice.” D.E. 44

at 20.




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      Because we hold that Dr. Moore pled sufficient facts to support his § 1981

discrimination claim, we reverse the district court’s dismissal of Dr. Moore’s

§ 1981 retaliation claim.     On remand the district court is to re-examine the

retaliation claim.

                                         IV

      In sum, we affirm the district court’s grant of the defendants’ motion to

dismiss as to Dr. Moore’s § 1981 discrimination claim based on the affiliation

agreement between Grady and MSM. We reverse as to Dr. Moore’s § 1981

discrimination claim based on the employment contract with MSM and as to Dr.

Moore’s § 1981 retaliation claim. The case is remanded to the district court for

further proceedings consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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