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Barbara E. v. Our Lady of Victory Hospital

March 30, 2012


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Barbara E. Salamon, M.D., commenced this action on January 21, 1999 against Defendants Our Lady of Victory Hospital ("OLV" or "the Hospital") and five medical personnel associated therewith--Dr. Michael C. Moore, Dr. Franklin Zeplowitz, Dr. John F. Reilly, Dr. Albert J. Diaz-Ordaz, and John P. Davanzo (collectively referred to herein as "Defendants"). In her Amended Complaint (Docket No. 5), Plaintiff alleged, inter alia, 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. L. § 290 et. seq. ("NYSHRL"),*fn1 by subjecting her to sexual harassment, discrimination, and by conspiring to negatively impact her future employment opportunities. She further alleged violations of New York State common law by tortiously interfering with her business relations.

In a previous Decision and Order this Court (Elfvin, J.) granted summary judgment in favor of the Defendants, dismissing Plaintiff's Title VII and NYHRL claims on the ground that she was not an employee of OLV, rejecting her Title VII claim under Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir.1973), and declining to exercise supplemental jurisdiction over the remaining state tortious interference claims. (Docket No. 127.) The Court of Appeals for the Second Circuit vacated this Court's decision as to Plaintiff's Title VII and NYHRL claims, holding that genuine issues of material fact existed as to the degree of control OLV exercised over Plaintiff for purposes of determining whether she was an "employee" under Title VII. (Docket No. 163.)

Defendants' Motions for Summary Judgment (Docket Nos. 101, 104, 106, 107) are again before this Court.*fn2 For the following reasons, this Court finds that Defendants are not entitled to summary judgment.


A. Procedural History

Plaintiff, a female gastroenterologist, was a member of the medical staff at OLV with privileges in gastroenterology. She commenced this action against OLV and the other defendants on January 21, 1999, and filed an Amended Complaint on March 5, 1999.

(Docket Nos. 1, 5.)*fn3 The Amended Complaint asserted eight causes of action, the first five of which were brought under anti-trust law, and were dismissed by this Court (Elfvin, J.) pursuant to Fed. R. Civ. P. 12(b)(6) by Order dated October 5, 1999. (Docket No. 20.) The sixth and seventh causes of action alleged sexual harassment, and a discriminatory OLV "peer review" process that resulted in a "reeducation" and mentoring requirement in violation of Title VII and NYSHRL. The eighth cause of action asserted state law claims for tortious interference with contract and prospective business relations.

Defendants moved for summary judgment on February 12, 2001. (Docket Nos. 38, 39, 41, 43.) This Court then granted Plaintiff's motions under former Fed. R. Civ. P. 56(f), allowing Plaintiff additional time to conduct discovery to oppose the Defendants' motion. Plaintiff's opposition papers were filed on May 21, 2004, and Defendants submitted their reply on July 21, 2004. The motion was orally argued and submitted on July 30, 2004.

On March 8, 2006, this Court (Elfvin, J.) issued a decision granting summary judgment in the Defendants favor on Plaintiff's Title VII and NYSHRL claims for lack of the required employee-employer relationship, and declining to exercise supplemental jurisdiction over her remaining state law claims.

In an amended decision, a panel of the Second Circuit vacated the entry of summary judgment and remanded the case for further consideration of the Defendants' motion. (Docket No. 162.) Specifically, the Second Circuit found that "viewing the circumstances of this particular case in the light most favorable to the plaintiff, the non-moving party, [Plaintiff] has demonstrated a genuine factual conflict regarding the degree of control OLV exercised over her," and instructed that, on remand, the district court was to reweigh all of the thirteen factors set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) to determine whether Plaintiff was an employee of the Hospital for purposes of Title VII. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 231 (2d Cir. 2008).

Defendants have now renewed their motion for summary judgment. Save for a handful of supplemental filings, the parties rely in large part on their previously-filed papers.

B. Factual Background

1. The Parties

Plaintiff is a physician licensed to practice in the State of New York, board certified in Internal Medicine and Gastroenterology ("GI"). In 1995,*fn4 Plaintiff applied for and was granted temporary staff privileges at OLV. At the time, Plaintiff was the only female physician in the GI Division. Following a full asset merger of OLV and Mercy Hospital (with Mercy Hospital to be the surviving corporation), Plaintiff's medical staff membership and privileges at OLV automatically expired as of June 16, 2003, when OLV's Operating Certificate expired. Thus, Plaintiff remained on staff continuously at OLV for a period of nearly nine years. During that time, she was subject to OLV's Staff Rules and Regulations and the requirements of various certifying agencies as well as applicable state and federal laws. (Def. Stmt. of Facts, (Docket No. 103) ¶¶ 1-6.)

During the times relevant to this action, Michael Moore, M.D. ("Moore") was the Chief of OLV's Gastroenterology Division, and a member of the OLV Board of Directors, the Professional Affairs/Credentialing Committee, the Quality Assurance/Utilization Management Committee, the Human Resources Committee of the Board, and later became president of Medical Staff at Mercy Hospital. Franklin Zeplowitz, M.D. ("Zeplowitz") was OLV's Chief of Staff, Vice President of Medical Affairs, Chairman of the Medical Executive Committee and the Chief of OLV's Credentials, Quality Assurance and By-Laws Committees. John Reilly ("Reilly") was OLV's Chief of Medicine and a member of OLV's Medical Executive Committee. Albert Diaz-Ordaz ("Diaz-Ordaz") was a member of OLV's Quality Assurance Committee, and John Davanzo ("Davanzo") was OLV's President/Chief Executive Officer. (Pl. Aff., (Docket No. 149) ¶¶ 8-10.)

2. Plaintiff's Relationship with OLV

Plaintiff received the privileges and was subject to the duties of all staff physicians at OLV. (Def. Stmt. of Facts, ¶ 10.) Her clinical privileges extended to the use of the hospital's facilities, including access to the endoscopy equipment in the GI lab, which was vital to her practice. Plaintiff contends that she was wholly dependent on OLV's instrumentalities to work. Plaintiff was required to use OLV's nursing and support staff in her treatment of patients at the Hospital. (Pl. Aff., ¶¶ 4, 6, 155, 175.)

Plaintiff was generally free to set her own hours and maintain her own patient load, subject to the availability of the endoscopy equipment, which the Hospital controlled, and to an on-call requirement discussed below. (Def. Stmt. of Facts, ¶¶ 16-17; Pl. Aff. ¶¶ 36, 148.) She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). Plaintiff was allowed to maintain staff privileges at other hospitals, and she did so, although the majority of her practice was at OLV. (Def. Stmt. of Facts, ¶¶ 17-18; Pl. Aff. ¶¶ 558-59.) OLV did not pay her a salary, wages, benefits, or any other monetary compensation. She billed patients (or their insurers) directly for her services, while OLV billed them separately for the corresponding use of its facilities. Plaintiff carried her own professional liability insurance. (Def. Stmt. of Facts, ¶¶ 12, 19-22.)

Plaintiff, like all physicians at OLV, was subject to the Hospital's policies, supervision and management, including Staff Rules and Regulations and Hospital by-laws. (Def. Stmt. of Facts, ¶¶ 10-11.) Plaintiff was also obliged to participate in regular staff meetings and spend a certain amount of time "on call" for OLV. During this required on-call time, Plaintiff was required to treat OLV patient needs as they arose, whether or not they were her patients. This duty extended to "follow up" treatment, obligating her to continue treating a patient she had first seen while on call, even after her on-call time was over. (Pl. Aff., ¶¶ 74-77.)

The most significant mechanism of supervision over Plaintiff, and the focal point of the Second Circuit's decision, was OLV's Quality Assurance ("QA") Program, in which Plaintiff was required to participate as a condition of her privileges. Under the QA Program, different hospital practitioners, on a rotating basis, would review procedures that had been conducted during the quarter. Cases flagged as potentially problematic would be discussed at mandatory GI Division meetings. OLV also had a peer review process for further examining the practice of doctors whose cases had been flagged through the QA Program. Def. Stmt. of Facts, ¶¶ 26-27; Pl. Aff., ¶¶ 38-53.)

Finally, OLV also reported to the National Practitioner's Data Bank ("NPDB"), a database that contains adverse information about doctors that would be queried when a doctor sought privileges at a hospital. According to Plaintiff, the QA Program included detailed requirements as to when and how her work was to be performed, requirements intended in some cases to maximize profits, not patient care. (Pl. Aff., ¶¶ 61, 64-65.)

3. Claims of Harassment

From the beginning of her time at OLV in September, 1994, Plaintiff alleges that Defendant Moore made a number of inappropriate and unwelcome comments to her. Over time, those comments escalated in frequency and in nature, and became increasingly sexual, despite Plaintiff's complaints about Moore's behavior. Plaintiff also felt that she was subject to a hostile work environment based on Moore's ongoing sexual relationship with a female nurse in the GI Division. Around this time, Moore began selecting Plaintiff's cases for peer review at the GI Division's quarterly meetings. While Plaintiff's cases were selected for review, inappropriate and inadequate treatment provided by the male physicians (including Moore himself) in the GI Division was overlooked. (Pl. Aff., ¶¶ 80-88, 176-228, 229-276.)

After repeatedly rejecting Moore's advances, Plaintiff met with Albert Condino ("Condino"), OLV's former CEO,*fn5 and Defendant Zeplowitz, in August, 1999, to advise them of Moore's sexual harassment and the unfair treatment she was receiving during the QA meetings. Although Condino and Zeplowitz assured Plaintiff that her claims would be investigated, the Defendants did not conduct any investigation of Plaintiff's allegations of sexual harassment against Moore. Moore denied Plaintiff's ...

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