The opinion of the court was delivered by: John T. Curtin, United States District Judge.
Presently before the court is a motion by defendants SUNY at Buffalo
School of Medicine ("SUNY") and Roswell Park Cancer Institute ("RPCI") to
dismiss plaintiff's employment discrimination complaint pursuant to
Fed.R.Civ.P. 12(b). Items 5, 6. Defendant Buffalo General Hospital, a/k/a
Kaleida Inc. ("BGH"), had moved to dismiss under Fed.R.Civ.P. 12(b)
and/or 56.*fn1 Item 7. Richard Wyssling, counsel for plaintiff Lisa
Jacobs ("Dr. Jacobs"), filed an affirmation in opposition to the
defendants' motions, Item 10. Shortly thereafter, in a letter to the
court, Mr. Wyssling withdrew his opposition to defendants' motions. Item
11. Dr. Jacobs then submitted an affidavit in opposition to defendants'
motions, Item 15, in response to which SUNY and RPCI submitted a reply
memorandum and attorney's declaration. Items 18 and 19. Because the court
has considered affidavits in support of and in opposition to the motion,
it will be considered under Rule 56.
The court then rescheduled the hearing, and ordered Mr. Wyssling to
inform the court whether he still represented the plaintiff, and whether
any additional affidavits would be filed. Item 20. Dr. Jacobs filed a
Supplemental Affidavit on September 28, 2001, Item 21, to which BGH filed
papers in opposition. Items 22 and 23.
Following oral argument on November 19, 2001, the court issued an order
requesting further information regarding plaintiff's arguments, and
providing a schedule by which defendant could reply. Item 28. No
submissions were forthcoming. For the reasons set forth below, SUNY and
RPCI's Motion to Dismiss and for Summary Judgment are denied.
In her complaint, plaintiff claims that she was employed by SUNY,
RPCI, and Buffalo General Hospital as a medical resident. Item 1, ¶ 5.
She was appointed a clinical assistant professor at SUNY, effective
November 1, 1997, and was assigned to work at RPCI as a medical resident
in the Radiation Oncology Department. Id., ¶ 13. She was supervised at
RPCI by, inter alia, Kyu Shin, M.D., Program Director; Zachary Grossman,
M.D., Acting Chair of the Dept. of Radiation Medicine; Jeff Lee, M.D.,
Acting Clinical Director of Radiation Medicine; Gary Proulx, M.D.,
Francis Hahn, M.D., and James Orner, M.D., Supervising Attending
Physicians; Cynthia Ikner, M.D., Chief Resident; and Nicholas Petrelli,
M.D., Chair of the Department of Surgery. Id., ¶ 14.
On January 21, 1998, Dr. Jacobs was notified that her participation in
the Radiation Oncology Department was "no longer possible," and her
appointment was terminated effective June 30, 1998. Id., ¶ 15.
Plaintiff lists a number of undated incidents that she argues
illustrate the less favorable treatment that she received, as compared to
similarly situated male residents. She asserts that Dr. Lee refused to
allow her to: (1) work at the Millard Fillmore Outpost, (2) borrow slides
for presentations, (3) participate in a study, (4) take vacations and
holidays, (5) take a radiation safety course, (6) and complete
evaluations of attending physicians. Male
residents, on the other hand,
were allowed to do these things. Id., ¶ 16. Dr. Lee did not provide her
with business cards, although male residents received them. Id. In
addition, she complains that Dr. Orner and Dr. Lee required plaintiff and
other female residents to perform tasks that were the responsibility of
the nursing staff, although they never required male residents to do so.
Dr. Lee required Dr. Jacobs to bring a male escort whenever she went to
dinner with married male doctors, and Dr. Orner hung up on plaintiff,
although he never hung up on male residents. Id. Further, the librarian
at Buffalo General Hospital treated plaintiff in a disrespectful and
malicious fashion, although she treated male residents respectfully. Id.
Dr. Jacobs also asserted that she was subjected to a hostile work
environment based on her gender, characterized by the following
examples: Dr. Shin commented on plaintiff's physical appearance, asked
her if she had a boyfriend and if she wanted to get pregnant; Dr. Orner
and Dr. Proulx repeatedly fondled, hit, prodded, slapped, and otherwise
"man-handled" plaintiff against her will and in ways she found
offensive; Dr. Lee made offensive jokes on sexual topics in plaintiff's
presence; Dr. Proulx asked plaintiff offensive personal questions about
her sex life; Dr. Petrelli ordered plaintiff to sit near him during grand
rounds, and placed his hand uncomfortably close to her buttocks; and one
of the radiation technicians propositioned plaintiff sexually and made
offensive personal comments about her appearance at the departmental
holiday party. Id., ¶ 17.
Dr. Jacobs complained about these incidents to Dr. Grossman "who failed
to take any action to rectify the situation and threatened Plaintiff that
he would terminate her if she were not compliant." Id., ¶ 18. She also
complained to Dr. Lee about sexual harassment by a janitor, and to Dr.
Ikner, who told her she should be flattered by all the male attention.
Dr. Ikner also made numerous offensive personal comments about
plaintiff's appearance and sex life. Id., ¶ 19.
As a result of these incidents, on January 11, 1999, Dr. Jacobs filed
three administrative complaints with the Equal Employment Opportunity
Commission ("EEOC") and the New York State Human Rights Commission
against each defendant. The administrative complaints are attached to her
complaint as Exhibit A. She received right to sue letters from the EEOC
on September 9, 2000. Item 1, Ex. B.
Dr. Jacobs brought her complaint in federal court on December 6, 2000,
asserting six causes of action: hostile work environment, disparate
treatment due to her gender, wrongful termination on the basis of
gender, and retaliation.*fn2 She also asserted two causes of action
under the New York Human Rights Law, § 296 of the Executive Law, for
hostile work environment, disparate treatment, wrongful termination, and
retaliation. Item 1, pp. 6-9.
As indicated supra, defendants SUNY and RPCI made a motion to dismiss
pursuant to Rule 12(b). Initially, Dr. Jacobs' attorney, Richard H.
Wyssling, Esq., opposed defendants' motions. Item 10. However, Mr.
Wyssling almost immediately withdrew plaintiff's opposition. Item 11. In
his letter to the court explaining the withdrawal, he made reference to a
"substantial error" that had been unknown
to him at the time he submitted his affidavit in opposition. Id. The
was that the termination of my client occurred on or
about January 21, 1998 and not five (5) months later
as I had alleged in my response to Defendant's Motion
for Summary Judgment. Please note that I have now
verified that all of the Defendants in one way or
another did notify my client on January 21 or January
22 that her termination was effective immediately.
Id. The court then received a copy of a letter Mr. Wyssling wrote Dr.
Jacobs, informing her that if she wished to object to the motion to
dismiss, she should do so prior to July 4, 2001. Item 12. He ...