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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 ...

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