1. Medical Whistleblower
April 2007
Volume 2 Issue 4
Medical Whistleblower’s
Canary Notes
Inside this issue:
Title VII and Work- 2
place Harassment
There is no immunity for 3
In Remembrance of Martin Luther King Jr.
violating Civil Rights
Payment of Attorney 4 As we remember Martin Luther King, Jr., we should remember how thru
Fees under Title 43
§1983 non-violent dissent he raised the consciousness of the civil rights move-
Badges of State Action 4 ment and in 1964 became the youngest person to ever receive the Nobel
Peace Prize. His life’s work was dedicated to ending segregation and ra-
42 U.S.C.A. § 2000e- 5
5(k)
cial discrimination through civil disobedience and other non-violent
means. But the ideas of non-violence he learned from the teachings of
great civil rights leader, theologian, and educator Howard Thurman.
Thurman's missionary work had taken him abroad where he had met and
conferred with Mohandas K. Gandhi. With the assistance from the
Quaker Group the American Friends Service Committee (AFSC), Martin
Luther King, Jr. visited India and the Gandhi family. This visit pro-
foundly affected Dr. King, deepening his understanding of non-violent
resistance and his commitment to America’s struggle for civil rights. In a
radio address made during his final evening in India, King reflected:
“Since being in India, I am more convinced than ever before that the method of nonvio-
lent resistance is the most potent weapon available to oppressed people in their struggle
for justice and human dignity. In a real sense, Mahatma Gandhi embodied in his life
From Civil Rights to Human certain universal principles that are inherent in the moral structure of the universe,
Rights: Martin Luther King,
and these principles are as inescapable as the law of gravitation.”
Jr., and the Struggle for
Economic Justice by
It was in 1955 that Rosa Parks bravely stood up and refused to give up
Jackson, Thomas F.,
Philadelphia: University of
her seat to white man and which lead to the Montgomery Bus Boycott.
Pennsylvania Press, 2006. This act of non-violent dissent ultimately led to the US District Court
ISBN 978-0-8122-3969-0 ruling that ended racial segregation on all Montgomery public buses
(Browder v. Gayle). See Nojeim, Michael J. (2004). Gandhi and King: The Power of
Nonviolent Resistance. Greenwood Publishing Group, 179. ISBN 0275965740

2. Page 2 Medical Whistleblower’s Canary Notes Volume 2 Issue 4
Explore for Yourself: Title VII and Workplace Harassment
A Strange Freedom: The Best of
Howard Thurman on Religious
Liability exists in connection with hostile environment sexual harass-
Experience and Public Life. By
ment claim under Title VII if either:
Howard Thurman; Walter E. 1. Tort is committed within scope of employment, i.e. harasser has
Fluker; Catherine Tumber (1998). actual authority over victim, by virtue of his job description;
Beacon Press, 6. ISBN
2. Employer was negligent or reckless in failing to train, discipline, fire
080701057X.
or take remedial action upon notice of harassment; or
3. Offender relied upon apparent authority or was aided in commis-
sion of tort by agency relationship Civil Rights Act of 1964, §§ 701
et seq., 42 U.S.C.A. §§ 2000e et seq. Bonenberger v. Plymouth Tp.,
132 F.3d 20 (3d Cir. 1997).
Health Care Quality Improvements Act of 1986 (42 U.S.C.A. §§ 11101
Deprivation of
et seq.), which provides for peer review and interstate monitoring
Rights Under of incompetent physicians, and grants qualified immunity from dam-
Color of Official ages for those who participate in peer review activities, but the HCQIA
Right excludes from its coverage suits brought under Title VII.
8 U.S.C.A. § Austin v. McNamara (1992, CA9 Cal) 979 F2d 728, 92 CDOS 9074, 92
1254(e). See § 8 Daily Journal DAR 15051, 1992-2 CCH Trade Cases ¶70037
28 U.S.C.A. §
There is No Immunity for Violating Civil Rights
1343. See § 2[b]
One of the biggest hurtles to getting justice when you are facing a peer
42 U.S.C.A. § review committee is the statutory peer review immunity that is almost
1983. See § always given to these governing bodies. The Peer Review Statute (42
1[a], § 1[c], § U.S.C.A. §§ 1983, 1085, 12101 et seq.) only granted immunity for an act
2[a], § 2[b], § 3,
or communication within the peer review committee’s scope as a review
§ 4, § 5, § 6, §
7, § 8, § 9, § entity not for violation of a person’s Civil Rights guaranteed under Fed-
10, § 11, § 12, § eral Law. But if you can prove that someone violated a person’s civil
13 rights there is no protection of immunity. Violation of Civil Rights is a
malicious act for which there is no immunity under the peer review stat-
42 U.S.C.A. §
ute. See the case (available in West Law) Feyz v. Mercy Memorial
1985. See § 2[b]
Hosp., 264 Mich. App. 699, 692 N.W.2d 416 (2005); See also 42
U.S.C.A. §§ 1983, 1085, 12101 et seq.; M.C.L.A. §§ 37.1101 et seq.,
331.351.

3. Medical Whistleblower’s Canary Notes Volume 2 Issue 4 Page 3
Payment of Attorney Fees on Title 42 § 1983
Another major hurtle that the Medical Whistleblower has to face is the
need to obtain a competent, dedicated and ethical lawyer who would
fight a long hard battle to obtain justice for the Whistleblower. Because
of retaliation in the workplace, the Whistlebower often loses employment
and ability to use his/her professional skills and credentials to get future
employment. Thus the Whistleblower is severely financially compromised
in attempting to get adequate council. The basic purpose of an award of
damages under 42 U.S.C.A. § 1983 is to compensate persons for actual
injuries caused by the deprivation of constitutional rights. These injuries
can be loss of financial assets, loss of future professional income, emo-
tional injury due to Post Traumatic Stress Disorder or physical injury due
to assault. There are no compensatory damages awarded in a § 1983 suit
if the plaintiff does not prove the actual injury. But a trial court may
42 U.S.C.
award nominal damages to a plaintiff who establishes a violation of his
right to procedural due process even if he cannot prove an actual injury.
This means that if the Whistleblower prevails and is awarded even nomi-
(42 U.S.C. § 1985(3)) Conspiracy
nal damages (due to a Due Process Error) then all the actual costs of the to deprive a person of their civil
rights is the most commonly appli-
litigation and the attorney fees may be recoverable under 42 USCA § cable federal claim that victims are
notified they may file.
1983 . This opens the door for the payment of Attorney Fees from the
Defendants and makes easier for the Medical Whistleblower to get an At- 42 U.S.C. § 3631 provides, in perti-
nent part: Whoever…by force or
torney. One of the most unique and attractive facets of a claim for de- threat of force willfully injure, intimi-
dates or interferes with, or attempts
nial of due process or equal protection, however, is that if the plaintiff to injure, intimidate or interfere
with—(a) any person because of
prevails and is awarded even nominal damages, all actual costs and attorney his race, color, religion, sex, handi-
cap..., familial status..., or national
fees may be recoverable under 42 USCA § 1988. The attorney fees must be origin and because he is or has
been... purchasing, [or] occupying...
reasonable and must be approved by the court. any dwelling... shall be fined under
this subchapter or imprisoned not
Badges of State Action more than one year, or both.
18 U.S.C. § 241 provides, in perti-
To prove that the retaliation was "Under Color of State Law" within the nent part: If two or more persons
meaning of 42 USCA § 1983 the following can be used to document conspire to injure, oppress,
threaten, or intimidate any person
“Color of State Law” action: receipt of Hill-Burton funds, receipt of in any State... in the free exercise
medicaid and medicare funds, state regulations relating to the operation or enjoyment of any right or privi-
lege secured to him by the Consti-
of private hospitals, use of public funds for tax free municipal bonds, tution or laws of the United States...
They shall be fined under this title
state and county grants, etc., exemption of the hospital from state and or imprisoned not more than ten
county real estate and income taxes, funding through contributions years, or both.
which are deductible as charitable donations for federal income tax pur-
poses.

4. Medical Whistleblower
The information contained through the Medical Whistle-
blower Canary Notes Newsletter is provided for general
information only. The information provided by the Medial
Dr. Janet Parker Whistleblower Canary Notes does not constitute legal or
P.O. Box C professional advice nor is it conveyed or intended to be con-
Lawrence, KS 66044 veyed in the course of any adviser-client discourse, but is
Phone: 360-809-3058 intended to be general information with respect to common
Fax: None issues. It is not offered as and does not constitute legal or
E-mail: MedicalWhistleblower@gmail.com medical advice or opinion. It should not serve as a substitute
for advice from an attorney, qualified medical professional,
social worker, therapist or counselor familiar with the facts
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of your specific situation. We encourage you in due diligence
MedicalWhistleblower.googlepages.com to seek additional information and resources before making
any decision. We make no warranty, express or implied,
concerning the accuracy or reliability of the content of this
newsletter due to the constantly changing nature of the legal
Supporting the Emotional Health of All Whistleblowers and medical aspects of these issues .
and their Friends, Supporters and Families.
Title VII of the Civil Rights Act
42 U.S.C.A. § 2000e-5(k)
As part of Title VII of the Civil Rights Act of 1964, Congress included a fee-shifting
provision (42 U.S.C.A. § 2000e-5(k)) which provides that the prevailing party's rea-
sonable attorney's fees will be paid by the non-prevailing party. This means that a
lawyer representing the Medical Whistleblower can be paid by the Defendant in the
case after the case is won and the courts orders payment of the of the looser to the
winner. This helps to get a lawyer to represent you.
Color of State Law
- Deprivation of
Right 29 U.S.C.A. § 791. See § 9
29 U.S.C.A. § 794a(a)(1). See § 9
42 USCA § 1983 42 U.S.C.A. § 794a(b). See § 9
42 U.S.C.A. § 1983. See § 2[a]
42 USCA §§ 1982 42 U.S.C.A. § 1988. See § 2[a], § 2[b], § 3, § 7[b], § 25 [a], § 29[a]
42 U.S.C.A. §§ 2000e et seq.. See § 1[a], § 2[a], § 3, § 28[a]
42 USCA § 1988 42 U.S.C.A. § 2000e. See § 3
42 U.S.C.A. § 2000e-5(f). See § 9
42 U.S.C.A. §§ 42 U.S.C.A. § 2000e-5(g). See § 3
11101 42 U.S.C.A. §§ 2000e-16. See § 9
42 U.S.C.A. §§ 7401 et seq.. See § 2[a]
42 U.S.C.A. § 2000e-5(k). See § 1[a], § 2[a], § 2[b], § 3, § 5, § 7[b], § 9, § 17[b], § 18, §
25[a], § 26[a], § 26[b], § 34[a], § 34[b]