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JACOBS v. SUNY AT BUFFALO SCHOOL OF MEDICINE

March 9, 2002

LISA A. JACOBS, PLAINTIFF,
V.
SUNY AT BUFFALO SCHOOL OF MEDICINE; ROSWELL PARK CANCER INSTITUTE; AND BUFFALO GENERAL HOSPITAL, A/K/A KALEIDA, INC., DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin, United States District Judge.

  INTRODUCTION

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.

FACTS

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.

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 error

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 ...


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