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Salamon v. Our Lady of Victory Hospital

March 8, 2006

BARBARA E. SALAMON, M.D., PLAINTIFF,
v.
OUR LADY OF VICTORY HOSPITAL, MICHAEL C. MOORE, M.D., FRANKLIN ZEPLOWITZ, M.D., JOHN F. REILLY, M.D., ALBERT J. DIAZ-ORDAZ, M.D. AND JOHN P. DAVANZO, DEFENDANTS.



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn1

Plaintiff commenced this action on January 21, 1999 against defendants Our Lady of Victory Hospital ("OLV") and five medical personnel associated therewith - viz., Dr. Michael C. Moore, Dr. Franklin Zeplowitz, Dr. John F. Reilly, Dr. Albert J. Diaz-Ordaz and John P. Davanzo (collectively "Administration").*fn2 Plaintiff alleges that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law §290 et seq. ("NYHRL"),*fn3 by subjecting her to sexual harassment and discrimination and by conspiring to negatively impact her future employment opportunities and violated New York State common law by tortiously interfering with her business relations. Defendants*fn4 moved to dismiss plaintiff's March 5, 1999 Amended Complaint on April 1, 1999, which the undersigned granted in part and denied in part on October 5, 1999 ("October 5 Order").*fn5 Subsequently, on February 12, 2001, defendants moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP"). On March 5, 2001, plaintiff filed an FRCvP 56(f) motion seeking to stay defendants' motion for summary judgment pending the completion of discovery, which the undersigned initially denied on May 24, 2001 and then granted on February 13, 2002 upon plaintiff's June 13, 2001 motion for reconsideration. Defendants refiled their motion for summary judgment on March 28, 2003, which motion plaintiff again, on June 6, 2003, sought to stay pending the completion of discovery. The undersigned granted plaintiff's second request for a stay on November 7, 2003. Defendants, for the third and final time, filed their motion for summary judgment on February 27, 2004, which was argued and submitted on July 30, 2004. For the reasons set forth below, defendants' motion will be granted and plaintiff's claims will be dismissed.

Plaintiff claims that defendants (1) engaged in sexual harassment and discrimination, resulting in substantial damage to her reputation, practice and career, in violation of Title VII and the NYHRL and (2) acted with malice in initiating and conducting peer review and disciplinary proceedings eliminating her existing and prospective patient referral sources. In moving for summary judgment, defendants claim, inter alia, that plaintiff, as a matter of law, is not an "employee" of OLV for purposes of Title VII and, as such, has no cognizable Title VII or NYHRL claim.*fn6 In response, plaintiff claims that she is an employee and, in the alternative, if she is found not to be OLV's employee, that defendants are still liable under Title VII for interfering with her future employment opportunities. The Court will find that plaintiff cannot pursue an action under Title VII or the NYHRL because (1) she is not OLV's employee and (2) she does not have an employment relationship with her patients. The Court will decline to exercise supplemental jurisdiction over plaintiff's state law claim of tortious interference with business relations and, as such, the case will be dismissed.

The facts relevant to determining whether plaintiff falls within the purview of Title VII and the NYHRL, in the light most favorable to plaintiff - the non-moving party -, are found as follows and are undisputed except where otherwise noted.*fn7 Plaintiff is a board certified gastroenterologist and internist ("GI") licensed to practice medicine in New York State. OLV approved plaintiff's application for staff privileges and appointed her to OLV's medical staff with specific clinical privileges in the GI department on February 21, 1995 and such appointment continued until June 16, 2003.*fn8 These privileges allowed plaintiff to use OLV's equipment contained in OLV's endoscopy unit ("GI Lab") and thus were crucial to plaintiff's GI practice.

As a staff physician at OLV, plaintiff worked at OLV, admitted and treated her and OLV's patients and performed endoscopies and other gastroenterological procedures in the GI Lab. Plaintiff was obligated to admit a patient to OLV if a procedure-related event had occurred at the GI Lab or the patient's pre-existing condition had deteriorated at the time of an endoscopy. Plaintiff claims that OLV and its Administration controlled her practice and work product by the quality management protocols and different policies that directed her patient care. In particular, plaintiff had to agree to participate in OLV's "hospital quality assurance programs" in order to receive approval of her staff privileges.

An appointment to OLV's Medical Staff permitted plaintiff to admit patients to OLV or otherwise be regularly involved in the care of patients at OLV without limitation, unless otherwise provided in the Staff Rules and Regulations, and to exercise her GI clinical privileges. OLV required plaintiff to conduct her practice in accordance with applicable federal and state laws, with clinical privileges based on her certification as a GI, with the requirements of certifying agencies, with the Medical Staff By-Laws, Rules and Regulations and with the standard of care appropriate to her GI practice area.

OLV conducted a department-wide peer review of plaintiff that resulted in the imposition of a reeducation and mentoring requirement, not in any suspension or termination of plaintiff's hospital privileges. All members of OLV's GI Division, including plaintiff, participated in the division's standard quality assurance process under a rotating system that assigned the review of procedures performed to different practitioners. Nearly all of the GI procedures at OLV were reviewed under the quality assurance process. Plaintiff claims that defendants discriminated against her by questioning her procedures and subsequently referring her to the peer review process. Plaintiff contends that there was a possibility that this peer review process would result in a negative report to the National Practitioner Data Bank (the "Data Bank") which is accessible by all hospitals and is used to evaluate whether privileges should be granted to a physician. It is undisputed that defendant never submitted a report to the Data Bank.

Plaintiff was required to pay for and maintain her own professional liability insurance. She determined the hours and times that she worked and was not granted vacation time by OLV. Free to have privileges and treat patients at other hospitals, plaintiff also maintained privileges at Buffalo General Hospital (now Kaleida), Mercy Hospital and St. Joseph's Hospital. Plaintiff determined which patients to accept and treat and independently decided on the course of medical care, treatments and procedures necessary for each patient. Patients whom she admitted to OLV remained under her care and responsibility.

Summary judgment may be granted if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).

When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, the non-moving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." FRCvP 56(e); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).

Of course, the summary judgment standard applies with equal force to discrimination cases as it does to other cases. See Ashton v. Pall Corp., 32 F. Supp. 2d 82, 87 (E.D.N.Y. 1999) ("[T]he salutary purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to commercial or other areas of litigation.") (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). However, courts must be aware of the fact that evidence of discrimination is rarely overt. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.") (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-465 (2d Cir. 1989)). In addition, courts must "also carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Ibid. Thus, the issue for the court is "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances." Ibid.

Title VII states that "[i]t shall be an unlawful employment practice for an employer %%% to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin %%% ." 42 U.S.C. §2000e-2(a)(1). Before determining whether there has been a violation of Title VII and the NYHRL, the Court must determine whether Title VII applies to the parties. It is well established that Title VII and the NYHRL cover only employees. Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000) (citations omitted).*fn9 Although the particular issue of whether a physician with staff privileges is an employee of the hospital in which she exercises her privileges has yet to be presented before the Second Circuit Court of Appeals,*fn10 the Fourth, Fifth, Sixth and Seventh Circuits have addressed the issue, all finding that said physicians are not employees, and the Supreme Court has provided courts thirteen factors - which the aforementioned circuits have applied - to use in determining whether a hired person is an employee. In applying the Supreme Court's standards and employing the other circuit court decisions as instructive, the Court will find that plaintiff is not an employee of OLV.

The Supreme Court has held that federal statutes, such as Title VII, "are generally intended to have uniform nationwide application." Cmty. for Creative Non- Violence v. Reid, 490 U.S. 730, 740 (1989) (citations and internal quotations omitted). Thus, in defining the terms "employer", "employee" and "scope of employment" for the purpose of applying federal statutes, the Supreme Court has instructed courts to rely on "the general common law of agency, rather than on the law of any particular State, to give meaning to these terms." Ibid. The Second Circuit Court of Appeals has followed Reid when determining, inter alia, whether a hired person is an employee - as opposed to an independent contractor - in the Title VII and NYHRL context.*fn11 Eisenberg, at 113 (citations omitted); see also O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) ("[I]t is well established that when Congress uses the term 'employee' without defining it with precision, courts ...


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