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Tasbas v. Nicholson

May 26, 2009

DR. HEDY TASBAS, PLAINTIFF,
v.
R. JAMES NICHOLSON, SECRETARY OF VETERANS AFFAIRS AND DEPARTMENT OF VETERANS AFFAIRS, DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Now before the Court is Defendants' motion for dismissal and summary judgment. (Docket No. [#18]). For the reasons that follow, Defendants' application is granted and this action is dismissed.

BACKGROUND

On May 11, 2006, Plaintiff, Dr. Hedy Tasbas, M.D. ("Plaintiff"), commenced the subject action, alleging claims under the EPA and Title VII. Plaintiff's EPA claim alleges that she was paid less than a male doctor , with more seniority, who performed the same work. As for Title VII, Plaintiff asserts claims for hostile work environment and disparate treatment, on the basis of her gender and national origin, and retaliation. In that regard, Plaintiff's Title VII claims are based on the premise that her immediate supervisor, Dr. Shirish Patel ("Patel"), a male of Indian ancestry, harbored discriminatory animus toward her because she is an American woman. Plaintiff alleges that because of such animus, Patel subjected her to a hostile work environment, and treated her less-favorably than her foreign-male and foreign-female co-workers. Plaintiff's hostile-environment claim alleges that Patel exhibited hostility and contempt toward her by his speech and demeanor. Plaintiff's disparate treatment claim alleges that she was treated less favorably than males and non-caucasian females in two general respects: 1) she was singled out for criticism of her performance and/or judged by a double standard; and 2) she was forced to work harder. As for being singled out for criticism, Plaintiff alleges that Patel forced her to write lengthy chart notes for patients, and required her to use a template for writing such notes, but did not require male psychiatrists to do the same. Plaintiff also alleges that Patel blamed her for errors committed by male doctors, and falsely accused her of mis-treating a patient. Plaintiff contends that, based on such false accusations, Patel transferred her to a different facility temporarily, and then placed her on a performance improvement plan ("PIP"). Plaintiff further maintains that Patel selected her files for peer review, and attempted to manipulate the peer-review process in order to insure unfavorable findings against her. As for her contention that she was forced to work harder than her non-American colleagues, Plaintiff alleges that Patel assigned her more patients than her co-workers, failed to credit her for work that she performed, and refused to allow her to take time off for vacation. Plaintiff also claims that Patel retaliated against her after she filed an EEO complaint in August 2002. Specifically, Plaintiff alleges that following the EEO decision*fn1 , Patel gave her a low performance rating, issued her a counseling letter regarding her use of sick leave, and assigned her all of the facility's new patients.

Following the commencement of this action, the parties conducted a significant amount of discovery. Based on such discovery, and the entire record in this action, the following are the facts of the case, viewed in the light most-favorable to Plaintiff. Plaintiff, a caucasian female psychiatrist of "Polish Lithuanian" descent who was born in the United States, began working at the Veteran's Administration Medical Center ("VAMC") in Canandaigua, New York, in June 1991. At that time, in addition to Plaintiff, the VAMC employed two male psychiatrists. Subsequently during the period at issue in this case, the VAMC employed several other psychiatrists, including females of South African, Dominican, Indian, and American descent.

In 1994, the VAMC hired Patel, a male of Indian ancestry, who was raised in Uganda and earned his medical degree in India, and who later immigrated to the United States. On one occasion, during a period of a few months when Plaintiff was the acting Chief of Psychiatry at the VAMC, Patel told Plaintiff that he would not take orders from her because she was a woman. (Plaintiff's Affidavit ¶ 14). On one other occasion during that same period, Patel told a social worker, Sue Kaszynski ("Kaszynski"), that he would not take orders from Plaintiff. Id. at ¶ 15. Also, in or about 2002, Patel told a joke, outside of Plaintiff's presence, that included a reference to a female as a "bitch."

In 1998, the VAMC promoted Patel to the position of Line Care Manager, a supervisory position above Plaintiff and the other psychiatrists at the VAMC. Approximately four years later, in or about January 2002, Patel spoke with Plaintiff about a particular file in which he believed that Plaintiff had not provided appropriate documentation. (Patel EEOC Affidavit at 27). Specifically, Patel indicated that "critical elements" of a psychiatric admission assessment, including medication history and allergies, were missing, and that Plaintiff's "mental status examination [of the patient was] grossly inadequate." (Defendants' Statement of Facts, Exhibit 5, at 706). Subsequently, Patel identified another of Plaintiff's files, which he believed contained inadequate documentation. (Patel EEOC Aff. at 29). Patel stated that Plaintiff was "not using [DSM-IV] criteria for diagnosis. . . . She was not including admission status, shift complaint, past history, family history, medication history, or allergies in the patient diagnostic evaluation." (Id. at 35). As a result, Patel placed Plaintiff on a preceptorship*fn2 , in which he instructed her "in medical documentation and clinical management of cases." (Id. at 29). The preceptorship consisted of several meetings between Patel and Plaintiff. As part of this preceptorship, Patel directed Plaintiff to use a particular format and template for recording information. (Id. at 32-37). According to Patel, all psychiatrists at VAMC were expected to follow the same format (Id), and he maintains that he counseled other psychiatrists besides Plaintiff on the use of appropriate documentation. (Id. at 39). Plaintiff, however, denies that male psychiatrists were required to provide the same type of documentation.

In or about February 2002, while the preceptorship was still in place, Patel and Plaintiff had their third preceptorship meeting, and Patel told Plaintiff that he would consider placing her on a PIP if her performance did not improve by their next meeting. (Patel EEOC Aff. at 43-45). Subsequently, according to Patel, Plaintiff's "clinical performance continued to remain unacceptable." (Id. at 49, 51). Specifically, Patel found that Plaintiff's cases showed "a consistent pattern of unsafe patient care." (Id. at 54). As examples, Patel noted cases in which Plaintiff had provided medication without obtaining blood tests or an EKG. (Id. at 54).

On or about March 25, 2002, Patel prepared Plaintiff's annual performance report, and rated her as "unsatisfactory" in the categories of examinations and diagnosis, "low satisfactory" in the area of therapeutic ability, and "satisfactory" in the areas of effectiveness in emergencies, patient management, and consultations and specialty skills. (Defendants' Stmt of Facts, Exhibit 33, p. 18). Patel's overall rating of Plaintiff's clinical competence was "low satisfactory." (Id.).

Patel discussed his concerns with the VAMC Chief of Staff, Dr. Babcock ("Babcock"), who recommended a "block peer review" of Plaintiff's cases. (Patel EEO Aff. at 49, 51).*fn3 In that regard, [p]eer reviews are a method of evaluation where providers grade other providers on their handling of a particular case. A completed review bears a rating of Level 1, Level 2, or Level 3. Level 1 means that most providers would have handled the case similarly, Level 2 that most providers might have handled the case in a different way, and Level 3 that most providers would have handled the case in a different way. (Defendants' Memo of Law at 10). Patel states that, to ensure objectivity, the VAMC chose doctors from other medical centers to conduct the block peer review. (Id. at 49-50). According to the VAMC's Director of Human Resources, Joseph Olszewski ("Olszewski"), it was common in the Veteran's Administration system to send medical files to other facilities for peer review, particularly in cases arising in a small facility like VAMC. (Defendants' Statement of Facts, Exhibit 16 at 36). Subsequently, a group of Plaintiff's cases were sent to the lead psychiatrist at the Buffalo VA facility, and another group was sent to the lead psychiatrist at the Syracuse VA facility. (Patel EEOC Aff. at 50). Plaintiff alleges that Patel specifically sought to have her files reviewed by the lead psychiatrist in Buffalo, a female of Indian descent, because she was a friend of Patel's.*fn4 However, the record indicates that Patel did not select a particular doctor to perform the reviews, but instead, requested the lead psychiatrists to have a peer review performed, either by the lead psychiatrists themselves or by one of their staff psychiatrists. (Id. at 51). Some of the results from the reviews by the Buffalo medical center were designated as Level 2 or 3. Id. at 52. Plaintiff admits that at least one of the cases that was reviewed in Buffalo was initially returned as a Level Two. (Defendant's Statement of Facts, Exhibit 8 at 178). However, Plaintiff maintains that the poor ratings resulted from the fact that portions of files that were being viewed in isolation, and that when the files were examined in their entirety, she received a peer review rating of Level 1. (Plaintiff's Affidavit at ¶ 37).

At around this same time, Patel reviewed one of Plaintiff's cases, in which Plaintiff either placed a patient on medication, or continued a medication prescribed by another doctor, without conducting certain tests. (Defendant's Statement of Facts, Exhibit 5 at 780-783). According to Patel, the patient was improperly receiving a medication that interfered with liver function, even though the patient's liver function tests were grossly abnormal. (Id. at 780, 815). Patel further maintains that the same patient was also placed on a medication that had a "significant effect on the heart,"even though Plaintiff had not evaluated the patient's cardiac condition. (Id.) Patel also contends that Plaintiff had placed the patient on medication that could increase the likelihood of a seizure, even though the patient had a history of seizures. (Id.) Plaintiff, however, alleges that, with regard to the liver function tests, Patel "misunderstood the results of [the] liver test," because he "did not understand that there is a difference between test results of a liver test obtained after fasting, and test results of a liver test done after the patient ate." (Tasbas Aff. ¶ ¶ 48-49). The basis for Plaintiff's allegation in that regard is unclear, although it is apparently due to her belief that Patel's Indian medical degree is not the equivalent of an American M.D. degree. (Plaintiff's Affidavit, ¶ ¶ 7-8) (Stating that Patel, "who is from India, does not hold an M.D. degree but is a licensed physician in the State of New York. . . . [Patel] would have had to study a few more years in order to obtain an MD degree."); (see also Id. at ¶ 51) (Stating that Patel "has very limited medical knowledge.").

Subsequently, Patel met with Babcock, VAMC Human Resources, and VA Regional Counsel to discuss Plaintiff. (Patel EEOC Aff. at 52-53). Following that meeting, the VAMC decided to have Plaintiff's actions reviewed by an administrative body known as a Board of Investigation. (Id. at 53, 88). On or about June 5, 2002, during a meeting between Patel, Plaintiff, and Sharlene Sacco ("Sacco"), the VAMC Co-Line Care Manager, Sacco informed Plaintiff that she was being reassigned to the VA's Rochester Outpatient Clinic pending completion of the Board of Investigation. (Id. at 60). According to Patel, Babcock recommended the reassignment, and Sacco actually made the reassignment. (Id. at 88-89, 92). According to Sacco, she and Patel jointly made the decision, in consultation with Babcock. (Defendants' Statement of Facts, Exhibit 18 at 20). During the reassignment, which lasted approximately one month, Plaintiff was not permitted to provide patient care, and instead she performed "compensation and pension" assessments, which did not involve treatment or follow-up care. (Patel EEOC Aff. at 89-90, 92).

Subsequently, Babcock determined that, because of a change in the VAMC's human resources regulations, a Board of Investigation was not appropriate, and that the VAMC would instead address Plaintiff's alleged deficiencies through a PIP. (Patel EEO Aff. at 93) ("[T]he Board of Investigation was not the correct approach, or was no longer an option. We would need to pursue [a] Performance Improvement Plan."). Consequently, in July 2002, Plaintiff was reassigned to her position at the VAMC in Canandaigua, and placed on a PIP. (Id.) The decision to place Plaintiff on a PIP was made by Patel, Sacco, "HR staff, the Risk Management Staff, and the Chief of Staff." (Id. at 94).

The PIP identified specific "critical elements that a provider ha[d] to address," such as conducting certain tests before starting medication. (Id. at 97). Specifically, Plaintiff's PIP identified three areas in which Plaintiff had to improve: 1) "rational prescription of psychotropic medications"; 2) "avoidance of polypharmacology"; and 3) "documentation." (Defendants' Statement of Facts, Exhibit 24). Patel was the person designated to oversee Plaintiff's performance under the PIP. (Patel EEOC Aff. at 98). PIPs generally lasted for a period of ninety days, however, Plaintiff's PIP remained in placed for a much shorter time, approximately one month, because she "clearly show[ed] incremental improvement." (Defendant's Statement of Facts, Exhibit 5 at 870-871).

Plaintiff alleges that Patel did not similarly criticize male doctors for problems with file notation, or for failing to conduct lab tests. However, Patel counseled Dr. H, a Korean male psychiatrist for problems with his file documentation. (Defendants' Statement of Facts, Exhibit 18 at 17-18). In that regard, Dr. H testified in relevant part:

Q: Did you ever have occasion to see Dr. Tasbas use a template to do her documentation?

A: I don't know what template you're talking about. There is guidelines, though. There are guidelines that you have to follow if you -- if you would.

Q: Did you follow those guidelines when you were doing your documentation?

A: Tried to do if I -- I have my own guidelines. Most of the patients that -- more than 30 years of practice [sic]. But I try to meet the criteria in the VA. So, reasonable practice.

Q: Did there ever come a time if you didn't meet the criteria that Dr. Patel would counsel you on your documentation?

A: Of course. He always does. He was always picking on me.

Q: Would you say that Dr. Patel was particularly picky?

A: He is. Little pickier than other chiefs in the past.

Q: Is he demanding with you and other providers?

A: Yes, he demands of me and other people, too. [sic]

Q: Would you say he was more demanding on women versus men, if you know?

A: I don't know.

Q: Did there ever come an occasion where you would see him being demanding with other male physicians?

A: He does to me. So he probably to others. [sic] (Kermisch Decl. Exhibit W at 740-741).*fn5 Dr. H further testified that Patel counseled him regarding the need to conduct tests, such as EKGs, and that Patel's supervision irritated him:

Q: So what did he -- how -- what did he say during the counseling? . . .

A: Why didn't you do it. And kind of -- he does that. He does that. He does --

Q: I'm trying to find out what he said to you.

A: I can't exactly say.

Q: He would ...


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