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United States District Court, Southern District of New York

January 30, 2003


The opinion of the court was delivered by: Sweet, District Judge


Defendants Yaffe and Ruden, P.C. ("Y&R"), Bruce Yaffe ("Yaffe") and Ronald Ruden ("Ruden") (collectively "Y&R") have moved for summary judgment under Rule 56, Fed.R.Civ.P. to dismiss the complaint of plaintiff Alison Uccello ("Uccello"). Uccello has cross-moved for judgment under the same rule on her contract cause of action. For the reasons set forth below, both motions are denied.

Prior Proceedings

Uccello commenced this action on June 6, 2000, alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 1985 and 1986, Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000(e)(k) (1977), New York State Executive Law § 290, et seq., New York City Administrative Code § 8-107, and for breach of contract, having timely filed a Title VII claim with the Equal Employment Opportunity Commission ("EEOC") and on April 10, 2000 received a Notice of the Right to Sue from the EEOC.

Discovery was undertaken, and the instant motions were heard and marked fully submitted on October 9, 2002.


The parties have submitted Local Rule 56.1 Statements from which the following facts are gathered, a number of which are in dispute as indicated.

Y&R was at all relevant times a medical partnership specializing in the practice of internal medicine and gastroenterology with two partners, Yaffe and Ruden, both of whom are board certified.

After working for several years as a nurse, Uccello attended medical school, completing her medical degree in 1994. She is a medical doctor, specializing in internal medicine and completed her residence at Lenox Hill Hospital in August of 1997.

During February to June of 1997, Uccello interviewed with Y&R and according to Uccello was asked if she expected to have more children. During the summer of 1997, Yaffe and Uccello agreed on employment for a 54-hour work week and a concomitant annual salary. Yaffe knew that Uccello had childcare responsibilities and it was inconvenient for her to work late. There were discussions of the possibility of partnership between the parties and it was stated that to become a partner Uccello would have to buy her partnership share.

Uccello was hired by Y&R as a physician in their medical practice in September 1997. The term of employment was one year to be renewed annually unless a notice of termination is given, or the contract is renegotiated. In December 1997, Uccello learned that she did not pass the medical boards. Yaffe and Ruden considered board certification a necessary qualification for the type of practice they conducted in view of an HMO requirement for board certification, although Uccello maintains board certification is not required. Yaffe and Ruden requested Uccello to retake the boards. Uccello took the medical boards a second time in August 1998.

In September 1998, Uccello's employment agreement was renewed for another year. In December 1998, Uccello learned that she did not pass the boards the second time.

In February 1998, November 1998, and January 1999, Uccello conducted various medical tests on herself and sent them to a medical testing laboratory for the results and listed herself as the physician on the forms submitted with the tests. In 1998 and 1999, other than the tests which Uccello performed on herself, the only physicians who she consulted for medical care were Drs. Yale and Romoff and a Dr. Pedro Segarra. Uccello put Ruden's name on her Oxford card and maintains that Ruden was also designated as her primary care physician.

According to Uccello, during the first year of employment she was responsible for bringing in new patients and generated more than $435,000 in fees for the practice and received positive feedback from Yaffe and Ruden who sent their patients for her to treat. She was not told that she was not working a sufficient amount of hours or that her performance was less than satisfactory. However, Yaffe and Ruden claim they received reports of thefts by Uccello and Yaffe and Ruden deny that Uccello was responsible for new patients.

From September 1997 to February 1999, according to Uccello, Yaffe and Ruden spoke to her on a daily basis about their patients and the inter-office referral of patients without voicing any complaints about her performance.

In February 1999, Y&R's practice moved to East 65th Street, and the entire practice was relocated in the one facility. Previously Uccello had practiced in an office separate from Yaffe and Ruden. In or about February or March 1999, Yaffe and Ruden first claimed dissatisfaction with Uccello relating to billing equipment at Uccello's old location and its location and her response that she did not know where that "shit" was. According to Yaffe and Ruden she did not unpack her boxes or decorate her office; Uccello contends otherwise. The relationship and communication between Ruden and Uccello deteriorated. Yaffe and Ruden maintain the deterioration started after the office move in February. Uccello maintains it began after the knowledge of her pregnancy.

In March 1999, Yaffe and Ruden claim that they determined that the employment relationship with Uccello was not working out. In March 1999, Yaffe met with Uccello to discuss her contract. According to Yaffe, he asked Uccello where she saw herself in six months and she answered, "I don't even know where I will be in six months."

According to Yaffe and Ruden, Uccello was rude to staff and patients and failed to cooperate, resulting in a confrontation in front of patients between Uccello, the office manager, and the physician assistants in or about February or March 1999 and Yaffe received patient complaints about her performance. Uccello denies this conduct.

The date of Uccello's pregnancy is disputed. According to Uccello when Ruden learned of it, he became angry and hit the wall in her office, and thereafter expressed his disapproval through body language. On April 12, 1999, Uccello conducted a second pregnancy test which was submitted to the laboratory under her own name and she received the results of this test.

A handwritten note by Ruden in March 1999 stating the reasons for the termination is claimed by Uccello to have been prepared in July.

According to Uccello when Ruden learned of her pregnancy he stated that he didn't think a woman her age could get pregnant.

In April 1999, Yaffe encouraged Uccello to find and develop an area of medical interest. She chose to attend a seminar on botanical medicine. Yaffe and Ruden claim not to credit this as an acceptable area for their practice and that they communicated their objections to Uccello who denies the claim. Yaffe and Ruden objected to her absence to attend the seminar. According to Yaffe and Ruden they informed Uccello that they were exercising the option not to renew their contract with her, and invited her to renegotiate the terms of her employment by notice of non-renewal sent to Uccello's home by certified mail and also handed to her by Ruden.

The Certificate of Mailing reflects an address for Uccello of 501 East 87th Street, instead of 301 East 87th Street which, according to Uccello, is the correct address. No signed receipt has been produced, although Ruden claims that he handed the notice of termination letter to Uccello but she denies having received it.

On July 15, 1999, Uccello submitted a doctor's note stating that she needed a week's bed rest and thereafter could only work three days a week due to her pregnancy. Y&R accommodated these requests. During the requested week Uccello visited her daughter's camp in Saratoga Springs and then drove to Massachusetts. Due to Uccello's three-day-a-week schedule, the work load for Ruden and Yaffe significantly increased.

In July, according to Yaffe and Ruden, Uccello was supposed to be "on call," a contention denied by Uccello. Yaffe and Ruden expected Uccello would retake her medical boards when they were given in August 1999. She did not.

In mid-August, Jacalyn Barnett ("Barnett"), a lawyer for Y&R and Ruden's wife, contacted Uccello about her contract. According to Barnett, on August 18, 1999, Uccello told Barnett that she would have to think about her own needs and whether she wanted to enter into a new employment contract. A discussion concerning working hours failed to reach agreement and Uccello maintains that there was no conversation on August 30 as claimed by Barnett.

According to Barnett, Uccello stated that she had still not made up her mind about employment. Uccello claims Barnett stated that she, Uccello, would receive a new contract which required longer hours and Saturday duty. On August 31, 1999, a letter was hand delivered to Uccello stating that she had not 8 gotten back to Barnett and that her contract would expire the next day.

Another female physician who was not pregnant was hired to replace Uccello.

The Motion To Dismiss The Complaint Is Denied

"A trial court must be cautious about granting summary judgment to an employer, when, as here, its intent is at issue." Gallo v. Prudential Residential Services Limited Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).

The Pregnancy Discrimination Act (42 U.S.C. § 2000(e)(k)) states in pertinent part:

women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.
According to Uccello, Yaffe and Ruden made a decision to terminate her based upon her pregnancy. In addition to Yaffe questioning Uccello at her initial interview whether she intended to have more children, she was treated with animosity, hostile conduct and comments concerning her pregnancy.

The time of the knowledge of Yaffe and Ruden of Uccello's pregnancy is a material fact at issue bearing on the interpretation and meaning of their conduct and the time of the putative notice of dismissal.

The conversations between Barnett and Uccello with respect to working conditions are at issue and bear upon Uccello's claim of discrimination.

The date and existence of the termination letter are at issue and bear upon the reasons for the acts of Yaffe and Ruden.

There are sufficient factual issues relating to Uccello's charge of discrimination arising out of her pregnancy to defeat the motion for summary judgment. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (a plaintiff may carry his burden of proving that a forbidden factor was a motive in his termination through either direct or circumstantial evidence if such evidence includes conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude).

In addition, Uccello has submitted evidence that (a) she is a member of a protected class; (b) she satisfactorily performed her duties; (c) she was discharged; (d) her position was filled by a non-pregnant employee or that the discharge occurred in 10 circumstances giving rise to an inference of unlawful discrimination. Quarantino v. Tiffany & Co., 71 F.2d 58 (2d Cir. 1995), citing the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In particular, her claims of adequate performance are challenged by Yaffe and Ruden.

These same issues exist with respect to the Yaffe and Ruden effort to justify the discharge on grounds other than discrimination. Uccello has challenged virtually all of their claims of inadequate performance.

On the issue of pretext, Uccello maintains that she never received criticism or a warning about her performance or a negative performance review. In Smith v. K&F Industries, Inc., 190 F. Supp.2d 643 (S.D.N.Y. 2002), the Honorable Victor Marrero held that "A lack of written warning, disciplinary action or reprimand is evidence that may rebut a defendant's asserted legitimate, non-discriminatory rationale." There, supervisors made inappropriate comments and intrusive inquiries regarding her pregnancy, which the Court said it "cannot fairly characterize these comments as `stray.'" The defendants' motion for summary judgment was denied. Similar considerations require a similar result here.

The Cross-Motion is Denied

Resolving all ambiguities and drawing all inferences in favor of defendants, Y&R has presented genuine issues of material fact as to their compliance with the non-renewal provision under the contract and the receipt by Uccello of written notice that her contract would not be renewed.

The employment contract specifies that it can be terminated ninety days after receipt of written notice of non-renewal and states that "such notices shall be deemed to be given when mailed." There is evidence in the record that Y&R gave Uccello written notice of non-renewal by letter dated May 21, 1999, sent by certified mail and also by hand. Upon these acts, notice of non-renewal was effective. See Don King Productions, Inc. v. Douglas, 742 F. Supp. 741, 764 (S.D.N.Y. 1990). In Don King, the parties' agreement stated that notices "are deemed given when mailed." Id. This Court held that the notice given was effective where the record established that the party deposited a letter with the postal service, by certified mail, return receipt requested, despite the fact that the notice was not delivered then but had been returned to the sender. The Court in doing so looked beyond the mere delivery of the notice and considered the party's conduct to determine that it had received oral actual notice.

The New York court in Sasmor v. Vivaudou, Inc., 200 Misc. 1020, 1024 (1951), handled the issue of receipt of notice in a similar fashion. In that case, a former employee claimed he did not receive written notice of the non-renewal of his contract before the date when his contract was automatically renewed. The court found that whether or not the employee received said notice was a question of fact, and that the employee's denying that he received it did not dispose of the issue. The court stated, "it still remains a question of fact on all the evidence." Id. The court held that notice was duly given after reviewing "all the evidence," consisting of the steps the company took to prepare and mail the notice and the employee's conduct, including conversations between the employee and chairman of the company.

Here, Uccello claims to have never received written notification of the non-renewal of her contract and taking into consideration all the evidence, there remain questions of fact which cannot be disposed of on summary judgment.

While Uccello asserts that the address on the certified mail receipt is incorrect, that fact does not entitle her to summary judgment where the evidence is also that the address that appears on the face of the letter is correct. Moreover, the notice of non-renewal was never returned to the office as undeliverable. Whether Ruden also hand-delivered the non-renewal to Uccello is also in dispute.

Accordingly, on this record there exist genuine issues of material fact as to whether Y&R satisfied the non-renewal provision by providing Uccello with notice of the non-renewal. The cross-motion of Uccello for summary judgment therefore is denied.


The motions and cross-motion for summary judgment are denied. The parties will confer and submit a date for completion of the pretrial order.

It is so ordered.


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