citation omitted), Plaintiff cannot simply rely on his allegations to withstand an attack on the factual
basis for jurisdiction. Rather, he “must submit affidavits and other relevant evidence to resolve the
factual dispute.” Kontos v. United States Dep’t of Labor, 826 F.2d 573, 576 (7 Cir. 1987);
Sapperstein, 188 F.3d at 855. At all times, the burden of establishing the existence of federal

jurisdiction rests with the plaintiff. Id.

Discussion
In Count I, Toyos alleges that Dr. Rosenberg’s recommendation to the Florida Board of
Medicine violated his rights under Title VII. That statute, however, prohibits only employment
discrimination. 42 U.S.C. § 2000. Thus, plaintiff must allege that he had an employment
relationship with Dr. Rosenberg and Northwestern at the time the recommendation was made, if he

is to survive this motion. Alexander v. Rush North Shore Med. Ctr., 101 F.3d 487, 4 (7" Cir. 1997).

Toyos has not made the requisite allegations, an his complaint establishes that he cannot 4o
so. Toyos was working in private practice, and had been for three years, when Dr. Rosenberg gave
his recommendation to the Florida Board. (Compl. {ff 17-19.) Because Toyos has affirmatively
alleged that he was not employed either by Dr. Rosenberg or by Northwestern when the allegedly
discriminatory recommendation was given, his Title VII claim must be dismissed.

In Count II, Toyos alleges that Dr. Rosenberg’s recommendation violated his rights under
Title VI. Title VI mandates that no one “be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance.” Id. Toyos alleges that defendants should be held liable under this statute because the

recommendation denied him the benefit of his successful completion of the residency program.

-4-


“ambiguous and indefinite” to be actionable because it does not have “a precise and readily

understood meaning”and its “veracity... cannot be verified”).

Conclusion

For the reasons set forth above, defendant’s Rule 12(b)(6) motion to dismiss the Title VII
claims asserted in Count I and the defamation claims asserted in Count V is granted and those claims
are dismissed with prejudice. The Court construes defendants’ Rule 12(b)(6) motion to dismiss the
Title VI claims asserted in Count II, the section 1981 claims asserted in Count IJ] and the section
1983 claims asserted in Count IV as a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction. That motion is also granted and those claims are dismissed without prejudice. This is
a final and appealable order.

ENTER:

UNITED STATES DISTRICT JUDGE

patep: _A-420702-

-7-


Sometime thereafter,' Toyos submitted an application for a license to practice medicine in
the State of Florida. (Id. { 18.) After receiving his application, the Florida Board of Medicine sent
a request for a recommendation on Toyos to the Director of Northwestern’s Department of
Ophthalmology Residency Program. (Id.)

In January 2001, Dr. Rosenberg, who was not the program director at the time, responded
to the Florida Board’s request. (Id. § 19.) Though the form is not attached to the complaint, it
apparently contained a number of rating categories from which the respondent could choose,
including “qualified and competent” and recommended “with some reservation.” (Id.) Without

elaborating, Rosenberg recommended Toyos “with some reservation.” (Id.)

The Legal Standard

On a Rule 12(b)(6) motion to dismiss for failure to state a claim on which relief can be
granted, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all

reasonable inferences in plaintiff's favor. Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1019 (7th

Cir. 1992). No claim will be dismissed unless “it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467
USS. 69, 73 (1984).

Ona Rule 12(b)(1) motion to dismiss, the Court “may properly look beyond the jurisdictional
allegations of the complaint to determine whether in fact subject matter jurisdiction exists.”

Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir.1999) (internal quotation marks, alterations and

'Toyos does not allege the date that he submitted his application for a license to practice
medicine in the State of Florida.

3-


(PI.’s Mem. Resp. Defs.’ Mot. Dismiss at 6.) That “benefit,” Toyos’ allegations imply, was the swift
and sure receipt of a medical license in the State of Florida. (Compl. 21.) But Toyos does not
allege, and has not produced any evidence to show, that Dr. Rosenberg’s recommendation has, in
fact, derailed or delayed his Florida license application. He simply alleges that it may do so. (See
Compl. § 21.) Because Dr. Rosenberg’s recommendation has not yet, and may never, negatively
impact Toyos’ Florida licensing process, his Title VI claims are not ripe for review. See Texas v.
United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or indeed may not occur at all.”) (internal
quotation marks and citations omitted).

In Count III, Toyos asserts a claim for violation of his rights under section 1981. Among
other things, section 1981 guarantees “the enjoyment ofall benefits, privileges, terms, and conditions
of the contractual relationship” to all people, regardless of race. 42 U.S.C. § 1981(a), (b). The
contractual benefit that Toyos was allegedly denied is swift and sure licensing by the State of Florida.
(1d. J 21; Pl.’s Mem. Resp. Defs.’ Mot. Dismiss at 8.) As we noted above, however, there is no
allegation or evidence that Dr. Rosenberg’s recommendation has, in fact, impeded the Florida
licensing process. (Compl. 721.) At this point, whether Dr. Rosenberg’s recommendation will ever
deprive Toyos of the alleged benefit of his contract with Northwestern is a matter of conjecture. His
section 1981 claims, therefore, are not ripe and must be dismissed.

In Count IV, Toyos alleges that Dr. Rosenberg’s recommendation violated his rights under
section 1983, a statute that protects Toyos from constitutional deprivations at the hands of state
actors. Once again, however, Toyos does not allege that he has been deprived of any constitutional

right. Rather, he says Dr. Rosenberg’s recommendation may deprive him of his rights at some point

5-


Miguie Order Form, (06/97)

AL.

United States District Court, Northern District of Illinois

were Assigned Judge Sitting Judge if Other
h Vs Magistrate Judge Paul B. Plunkett than Assigned Judge
CASE NUMBER 01 C 5407 DATE 2/20/2002
CASE ROLANDO TOYOS vs. NORTHWESTERN UNIVERSITY ,et al
TITLE
[Un the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) im Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO Trial[set for/re-set for] on at
(8) im {Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRCP4(m) OGeneral Rule21 OO FRCP41(a)(1) O FRCP41(a)(2).
ao [Other docket entry) _ ENTER MEMORANDUM OPINION AND ORDER: defendants’ Rule
12(b)(6) motion to dismiss the Title VII claims asserted in Count I and the defamation claims asserted in
Count V is granted and those claims are dismissed with prejudice. The Court construes defendants’ Rule
12(b)(6) motion to dismiss the Title VII claims asserted in Count Il, the section 1981 claims asserted in
Count III and the section 1983 claims asserted in Count IV as a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction. That motion is also granted and those claims are dismissed without prejudice.
This is a final and appealable order.
dl [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required, umber of notices
se rai ardaet rey > if]
Notices mailed by judge’s staff. Pp cB Z 4 26k
Notified counsel by telephone, date docketed
oY | Docketing to mail notices.
Mail AO 450 form. dockofng deput)itas
Y | Copy to judge/magistrate judge.
courtroom date mailed notice
TBK deputy’s
initials Tao
Ot ike lens Ole rang dpa



in the future. (Id. 34.) Toyos’ failure to show that Dr. Rosenberg’s recommendation has actually
worked a deprivation renders his section 1983 claims unripe.

Finally, in Count V, Toyos alleges that Dr. Rosenberg’s recommendation makes defendants
liable for defamation. To state a claim for defamation, plaintiff must allege that defendants made
a false statement of fact about him, that there was an unprivileged publication to a third party and

that plaintiff was damaged. Krasinski v. United Parcel Serv., Inc., 530 N.E.2d 468, 471 (Ill. 1988).

According to the complaint, the sum total of Dr. Rosenberg’s statement about Toyos to the Florida
Board of Medicine was recommended “with some reservation.” (Compl. § 37.) Though Dr.
Rosneberg did not say that Toyos was incompetent, plaintiff contends that his recommendation
conveyed that message because he could have, but did not, place Toyos in the ‘qualified and
competent’” category. (Id. {J 19, 37.) That is certainly one of the inferences that can be drawn from
Dr. Rosenberg’s recommendation, but is by no means the only one. Among the myriad of equally
plausible inferences are that Dr. Rosenberg believed Toyos’ medical skills were fine, but thought he
was rude, arrogant or was otherwise an unpleasant colleague; disagreed with his stance on alternative
treatments or managed care; believed he was distracted from his work by personal problems; or
questioned his long-term commitment to the practice of medicine. The fact that all of these
inferences, and countless others, can be drawn from Dr, Rosenberg’s statement illustrates the
fundamental flaw in Toyos’ defamation claim: Dr. Rosenberg’s recommendation is not a statement
of fact. Because the statement recommended “with some reservation,” is an opinion, not an
“objectively verifiable” assertion that is “susceptible of being proved true or false,” it cannot support

a defamation claim. Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22 (1997); see Hopwell

Vitullo, 701 N.E.2d 99, 104 (Ill. App. Ct. 1998) (statement “fired for incompetence” was too

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION 5
FEB Qi 2002.
ROLANDO TOYOS, )
)
Plaintiff, )
)
v. ) No. 01 C 5407

) Paul E. Plunkett, Senior Judge
NORTHWESTERN UNIVERSITY and )
MICHAEL ROSENBERG, M.D., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Rolando Toyos has sued defendants for their alleged violations of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d et seq., Title VI of the Civil Rights At of 1964, 42 U.S.C. § 2000e,
et seq., 42 U.S.C. §§ (“sections”) 1981 and 1983 and for defamation. Defendants have filed a
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss all of these claims. For the reasons set
forth below, the Court: (1) grants the motion with respect to the Title VII claims asserted in Count
I and the defamation claims asserted in Count V; and (2) construes defendants’ motion as a Rule
12(b)(1) motion for lack of jurisdiction with respect to the Title VI, section 1981 and section 1983

claims asserted in Counts II-IV and grants the motion as to those claims.

Facts

Toyos, who is Hispanic, graduated with honors from the University of Illinois College of
Medicine in 1994. (Compl. ff 1, 4.) After graduation, Toyos began an internship in internal

medicine at the Illinois Masonic Medical Center. (Id. 5.) Upon completion of the internship

(


program, Illinois Masonic asked Toyos to join their residency program. (Id.) Toyos declined the
offer, opting instead to enter a residency program with Northwestern University Medical School’s
Department of Ophthalmology. (Id. { 6.)

When Toyos joined the program, the Ophthalmology Department had no African- American
or Hispanic faculty members. (Id. J 11.) Moreover, Toyos was told by Department staff that he was
the first resident of color the Department had ever had. (Id.)

When Toyos joined the residency program, its director was Dr. Rosenberg. (Id. § 7.) The
relationship between Toyos and Rosenberg was not a good one. Rosenberg, for example, allowed
the other residents to address him as “Mickey,” but he required Toyos to address him as Dr.
Rosenberg. (Id. 8.) Moreover, though Rosenberg entertained questions from the other residents,
he was not receptive to questions from Toyos. (Id. { 8.)

His experience with other faculty members was no better. Unlike the other residents, Toyos
found that mentoring relationships with faculty members were not available to him. (Id. J 9.)
Moreover, one professor, when speaking to other residents, referred to Toyos as “the Big Brown T.”
(id. 10.)

Toyos struggled in the residency program and, in each of his first two years, scored poorly
on the national examination administered to ophthalmology residents. (Id. J 13.) Despite his slow
start, however, Toyos successfully completed the residency program. (Id. 15.) In fact, in his final
year in the program, Toyos scored higher than the other third-year residents on the national
examination. (Id.)

In 1998, Toyos completed his residency and went into private practice in Tennessee. (Id. J

17.) In December 2000, Toyos completed the board certification process. (Id.)

2-