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AKINDE v. BRONX-LEBANON HOSPITAL CENTER

August 19, 2005.

OLUDOTUN AKINDE, Plaintiff,
v.
BRONX-LEBANON HOSPITAL CENTER, Defendant.



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

OPINION & ORDER

This litigation concerns defendant Bronx-Lebanon Hospital Center's decision not to renew plaintiff Oludotun Akinde's contract for the final year of his residency. Akinde, who is a "black African-American male of Nigerian origin," (Pl.'s Response to Def.'s Rule 56.1 Statement ¶ 1), claims that Bronx-Lebanon Hospital Center declined to renew his contract in retaliation for Akinde having reported an incident in which a co-worker allegedly demeaned him on the basis of his race. Akinde also claims that the hospital subjected him to a hostile work environment during the first two years of his residency.

Plaintiff was originally represented by an attorney in this action, but is now proceeding pro se. Discovery proceedings have concluded and the hospital has now moved for summary judgment dismissing Akinde's claims. As set forth more fully below, the hospital's motion is granted because it has proffered unrebutted non-discriminatory reasons for declining to renew Akinde's contract and because Akinde has failed to offer any proof in support of his hostile work environment claim.

  I. Facts

  Akinde claims that at one point during the first month of his residency at the hospital, Mary Anne Carling, a co-worker, made disparaging racial comments to him, which he later reported to his physician advisor. (Pl.'s Statement of Disputed Material Facts ¶¶ 2-3). This report, Akinde asserts, touched off a series of negative performance reviews and further racial harassment that culminated two years later in the hospital's decision not to renew Akinde's contract for the third and final year of his residency. (Timeline, Pl.'s Ex. C). Akinde, however, has not provided any evidence to substantiate his allegations.

  The hospital maintains that it investigated Akinde's claims "that his supervisors called him racially offensive names and conspired against him" and found those claims to be lacking in merit. (Def.'s Rule 56.1 Statement ¶ 9). The hospital asserts that it declined to renew Akinde's contract because he "exhibited serious performance and behavioral problems" beginning in March of 2001. (Id. ¶ 4). In support of its contention, the hospital points to incidents such as the following: Akinde characterized a patient's eyesight as "fine" when in fact the patient was totally blind, (Id.; Resident Evaluation by Dr. Joseph Sacco dated Mar. 20, 2002 at 1, Ex. C to Def.'s Rule 56.1 Statement); he performed a "vaginal examination and swab on a six-year old child without a nurse present" even though the child's condition was "totally normal," (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated March 16, 2002, Ex. C to Def.'s Rule 56.1 Statement); he fell asleep "while monitoring a patient in the end stages of labor," (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Julie Denney to Dr. Fabienne Daguilh dated Mar. 12, 2001 at 1, Ex. C to Def.'s Rule 56.1 Statement); and he provided "grossly inaccurate information concerning patients' medical histories and physical findings after examination. . . ." (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Julie Denney to Dr. Fabienne Daguilh dated Mar. 12, 2001 at 1, Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 24, 2001 & Resident Evaluation by Dr. Joseph Sacco dated Mar. 20, 2002 at 1, Ex. C to Def.'s Rule 56.1 Statement). In addition, two of Akinde's supervising doctors filed evaluations in which they described a pattern of lying by Akinde. For example, Dr. Melanie Canon wrote that Akinde "lied . . . on several occasions" and that she did "not trust his histories or clinical plans. . . ." (Def.'s Rule 56.1 Statement ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 30, 2001, Ex. C to Def.'s Rule 56.1 Statement). These concerns caused Dr. Canon to "worr[y] about patient safety." (Def.'s Rule 56.1 Statement ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 30, 2001, Ex. C to Def.'s Rule 56.1 Statement). Dr. Joseph Sacco reported instances of Akinde's "lying" to him about "physical exam findings that he had not actually elicited" but had documented nonetheless. (Resident Evaluation by Dr. Joseph Sacco dated Apr. 30, 2002, Ex. C to Def.'s Rule 56.1 Statement).

  The hospital believed that Akinde's "performance problems" could stem from "a health or substance problem"; "in an effort to assist him to remain in the [residency] program" the hospital referred Akinde to the Medical Society of the State of New York's Committee for Physician's Health in May of 2001. (Id. ¶ 5). That committee is a "clinical program that permits doctors to receive treatment rather than be disciplined." (Id.; Decl. of Dr. James Mumford ¶ 2, Ex. K to Def.'s Rule 56.1 Statement). If the committee accepts a doctor into its program, the committee "then prescribes a course of treatment" that the doctor must follow; the committee may direct a doctor to cease practicing until he complies with the prescribed treatment. (Decl. of Dr. James Mumford ¶ 2, Ex. K to Def.'s Rule 56.1 Statement). The committee prescribed treatment for Akinde "including psychiatric evaluations, regular urine tests, and medication. . . ." (Def.'s Rule 56.1 Statement ¶ 6).

  Despite this assistance, Akinde's performance further deteriorated and his supervisors again evaluated him critically. Dr. Canon wrote that, "I can't be medically responsible for his practice. . . . The risks and consequences are immeasurable and innumerable." (Id. ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002, Ex. C to Def.'s Rule 56.1 Statement). Dr. Canon concluded that given Akinde's "consistent history of lying, revising stories and inappropriate practice, I must be in the exam room supervising him during every patient interaction . . . [I]t is necessary for the safeguard of our patients. . . ." (Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002, Ex. C to Def.'s Rule 56.1 Statement).

  Similarly, Dr. Sacco wrote that, "it continues to be my belief that allowing him to provide unsupervised medical care for our patients will expose them to a significant risk of untoward outcomes." (Def.'s Rule 56.1 Statement ¶ 7; Resident Evaluation by Dr. Joseph Sacco dated Jan. 30, 2002, Ex. C to Def.'s Rule 56.1 Statement). The hospital concluded that Akinde "had serious deficiencies in medical judgment which rose to a level that endangered the patients placed in his care" and had "demonstrated a marked lack of veracity on several occasions. . . ." (Def.'s Rule 56.1 Statement ¶ 8). Akinde asserts that doctors Canon, Sacco, and Shaw gave him these negative evaluations as part of an orchestrated campaign of retaliation for his report of Carling's alleged comments; however, as set forth above, he has provided no evidence to support his conclusory allegations.

  Eventually the hospital determined that it could no longer allow Akinde to practice and in November of 2001 the hospital informed him that it would not renew his contract for his third year of residency. (Id. ¶ 10). Through his union, Akinde filed a grievance with the hospital regarding that decision, and invoked the hospital's three-step grievance procedure. (Id. ¶¶ 10-11). The hospital held two meetings with Akinde and upheld its decision after each meeting. (Letter from Neil E. Gonzalvo to Dr. Milton A. Gumbs dated Dec. 21, 2001 & Letter from Bruce Soloway to Neil E. Gonzalvo dated Jan. 22, 2002, Ex. H to Def.'s Rule 56.1 Statement). At Akinde's request, the hospital then convened a subcommittee of the "Medical Executive Committee" to hear Akinde's grievance for a third time. (Letter from Dr. Vellore Parithivel to Oludotun Akinde dated June 10, 2002, Ex. H to Def.'s Rule 56.1 Statement). The subcommittee "reviewed Dr. Akinde's evaluations and multiple memoranda from faculty members that described incidents and concerns with Dr. Akinde's performance," and took testimony from the director of Akinde's residency program, Akinde's psychiatrist, and Akinde himself, who was represented by the union. (Report and Recommendation of Medical Executive Committee at 1-2, Ex. H to Def.'s Rule 56.1 Statement).

  Before making its decision, the subcommittee scheduled a second hearing at which it took testimony from Dr. Sacco, Dr. Canon, chief resident Dr. Olawale Morafa, and Carling. (Id. at 3). Based upon that evidence, the subcommittee determined that Akinde's "deficiencies . . . rise to a level that endangers patient care" and thus "unanimously recommends that the non-renewal decision be sustained." (Id.).

  The hospital did not renew Akinde's contract when it expired in July of 2002. Two months later, Akinde filed a charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated Akinde's charges and concluded that the information he provided "fails to indicate that a violation has occurred" and issued a right to sue letter. (Letter to Oludotun Akinde dated May 30, 2003, Ex. B to Def.'s Rule 56.1 Statement). In the letter accompanying the right to sue letter, the EEOC noted the diversity of the hospital's residency program, which included residents who were "Indian, Mexican, Egyptian, Romanian, Colombian, Bangladeshian, Georgian, Iranian, Ecuadorian, American, Peruvian, Syrian, Pakistani and (most significantly) other Nigerians." (Id. at 1; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement). In fact, all of the residents in Akinde's class were non-white and eighty percent were non-American. (Def.'s Rule 56.1 Statement ¶ 3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement).

  In addition, another black Nigerian resident in Akinde's class was named chief resident — the program's highest designation — for 2002-2003, the same year that Akinde was not invited back. (Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement; Letter from EEOC to Oludotun Akinde dated May 30, 2003 at 1, Ex. B to Def.'s Rule 56.1 Statement; Def.'s Rule 56.1 Statement ¶ 2-3). Additionally, with respect to residency classes for the years 2000-2001 and 2001-2002, a black Nigerian resident was named chief resident each year. (Def.'s Rule 56.1 Statement ¶ 2-3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement).

  In August of 2003 Akinde filed this litigation against the hospital, alleging claims of retaliation and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and New York Executive Law section 296.*fn1 As noted above, the ...


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