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Richardson v. Bronx Lebanon Hospital

United States District Court, S.D. New York

September 5, 2014




In December 2011, Defendant Bronx Lebanon Hospital elected not to promote Plaintiff Ernestine Richardson to Director of its Utilization Case Management Department. Shortly thereafter, in February 2012, Defendant terminated Plaintiff's employment. Plaintiff initiated this lawsuit in December 2011, and filed an amended complaint in May 2012. Of particular significance here, Plaintiff alleges that Defendant's decisions not to promote her and to terminate her employment violated federal, state, and local law because those decisions were made in retaliation for Plaintiff's filing of discrimination complaints with the Equal Employment Opportunity Commission and this Court. Because Plaintiff has failed to establish a prima facie case of retaliation with respect to Defendant's failure to promote her, and because she has failed to raise a genuine issue of material fact with respect to Defendant's decision to terminate her employment, Defendant's motion for summary judgment as to both claims is granted.


A. Factual Background

1. Plaintiff's Employment with Defendant

Defendant Bronx Lebanon Hospital ("Defendant" or "BLH") is a 965-bed voluntary, not-for-profit hospital serving the central and southern Bronx communities. (Def. 56.1 ¶ 2). Plaintiff, an African-American female, began working for Defendant in 1983 in its Nursing Department. (Richardson Dep. 18, 21). In 1988, Plaintiff moved to the Utilization Case Management ("UCM") Department as a Patient Utilization Review Coordinator. (Def. 56.1 ¶ 3).

The UCM department is responsible for obtaining reimbursement for Defendant from payors, including federal health care plans, Medicaid, and Medicare. (Def. 56.1 ¶ 4). To achieve this, the UCM Department ensures that Defendant provides - and bills - for services in a manner that makes clear that such services are both necessary and reimbursable. ( Id. ). UCM is also responsible for (i) ensuring that all patients are properly pre-certified for medical treatment; (ii) proactively checking with doctors to ensure that the doctors are providing the proper intensity of medical care in light of the severity of the patient's illness; and (ii) effectively planning discharge procedures to ensure that patients do not unnecessarily extend their hospital stays. ( Id. at ¶ 5). Failure to perform these functions can result in the denial of payment to Defendant for the services it renders. ( Id. ).

Defendant indicated that, as Assistant Director of its UCM Department, Plaintiff's responsibilities included: (i) overseeing the UCM process on a day-to-day basis; (ii) ensuring that UCM staff timely reviewed patient charts and ensured that doctors received payor authorization prior to performing necessary medical care; (iii) maintaining the UCM Department's focus on denial prevention strategies; (iv) completing UCM performance appraisals on an annual basis; and (v) maintaining direct oversight of operations for UCM. (Def. 56.1 ¶ 10). Plaintiff agrees that she was responsible for the day-to-day running of the UCM Department, but maintains that she was not responsible for denials, which she contends fell under the purview of the UCM Director (i.e., her direct supervisor) and the Director's supervisor. (Pl. 56.1 ¶ 10).[2]

While employed by Defendant, Plaintiff received several promotions: in 1989, she was promoted to Utilization Pre-Admission Coordinator; in 2002, she was promoted to Appeals Manager; in 2004, she was promoted to UCM Assistant Director; and, on November 1, 2011, she was promoted to Acting UCM Director. (Def. 56.1 ¶ 8; Pl. 56.1 ¶ 25).[3] When Plaintiff became UCM Assistant Director in 2004, her supervisor was Evelyn Brillon; Brillon remained in that capacity until October 31, 2011, when her own employment was terminated. (Pl. 56.1 ¶ 9).

Plaintiff served as Acting UCM Director through the end of 2011, at which time Defendant hired Phyllis McPherson to serve as UCM Director. Plaintiff returned to her position as UCM Assistant Director on or around December 30, 2011, until February 17, 2012, when she was terminated from that position. (Pl. 56.1 ¶ 9; Def. 56.1 ¶ 28). Throughout this time, McPherson served as Plaintiff's supervisor. (Pl. 56.1 ¶ 9).

Defendant contends that Plaintiff received multiple salary increases and bonuses during her tenure with Defendant. (Def. 56.1 ¶ 6). Namely, in 2004, Plaintiff's salary was increased from $75, 085 to $85, 000; in 2007, her salary was increased to $100, 000; in 2010, her salary was increased to $110, 000; and between 2008 and 2010, Plaintiff received three bonus payments totaling $15, 800. ( Id. ). Plaintiff counters that the purported raise to $85, 000 was not in fact a raise, but a required adjustment because her starting salary of $75, 085 was at an inappropriate pay grade. (Pl. 56.1 ¶ 6). Similarly, Plaintiff contends that the increase to $100, 000 in 2007 was because Plaintiff was receiving the wrong salary grade. ( Id. ). Plaintiff further states that she received no salary adjustments after 2007, and that in November 2011, when she was appointed Acting UCM Director, she received a temporary salary increase to $110, 000, which was reduced to $100, 000 upon returning to her permanent role as Assistant UCM Director. ( Id. ).[4]

2. Defendant's 2010 Reorganization

By 2010, Defendant recognized that it needed to address staggering revenue losses that it was incurring because of the denial of payments. (Def. 56.1 ¶ 11). To that end, in May 2010, Defendant hired Dr. Robert Leviton to serve as Chief Medical Information Officer. ( Id. ).

Starting in or around the end of 2010, Dr. Leviton became responsible for, among other things, analyzing the UCM Department to determine whether it was operating effectively to decrease revenue loss. (Def. 56.1 ¶ 11). Ultimately, Dr. Leviton concluded that Defendant was losing substantial revenue because of unnecessary denials of payments due to the UCM Department's failure to, among other things: (i) proactively meet with doctors to ensure that they were performing their services in a timely and effective manner with payor guidelines; (ii) sufficiently review patient charts to determine whether the medical care provided met payor reimbursement guidelines; and (iii) provide payors with a clinical summary of the illnesses and proposed medical care to receive authorization for medical care. ( Id. at ¶ 12).

By May 2011, Dr. Leviton determined that Defendant was incurring a 76% denial of payment rate, weekly denials of up to $350, 000, and annual revenue losses of up to $36 million. (Def. 56.1 ¶ 14).[5] By October 31, 2011, Dr. Leviton determined that the UCM Department needed new leadership to address its chronic and costly performance issues and revenue losses. ( Id. at ¶ 18). As a result, Dr. Leviton terminated the employment of the UCM's Director (and Plaintiff's then-supervisor), Evelyn Brillon. ( Id. ).

3. Plaintiff's April 2011 EEOC Complaint

In April 2011, while Dr. Leviton was in the midst of investigating UCM's role in the severe loss of hospital revenues, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (the "EEOC"), alleging that Defendant had discriminated against her on the basis of her race and sex (the "April 2011 EEOC Complaint"). (Def. 56.1, Ex. O). In the April 2011 EEOC Complaint, Plaintiff indicated that the discrimination took the form of Defendant failing to compensate Plaintiff adequately for her job responsibilities. ( Id. ). Plaintiff alleged that she had not received a salary adjustment in six years, and that based on the research she had conducted, her salary was far below the industry standards. ( Id. ). On September 14, 2011, the EEOC informed Plaintiff that based upon its investigation, it was unable to conclude that the information obtained established a violation of relevant federal statutes. (Def. 56.1 ¶ 17 & Ex. S). At the same time, the EEOC informed Plaintiff of her right to bring suit for the claims advanced in the April 2011 Complaint in federal or state court. ( Id. ).

Jasen Nhambiu, Director of Labor Relations at Defendant, testified that Plaintiff's April 2011 EEOC Complaint was first received by Defendant on May 6, 2011. (Nhambiu Dep. 16). Selena Griffin-Mahon, Assistant Vice President for Human Resources for Defendant, testified that she became aware of the EEOC Complaint in or around the summer of 2011. (Griffin-Mahon Dep. 54).

4. Defendant's Search for a New UCM Department Director

On November 1, 2011, after terminating Brillon, Defendant (specifically, Dr. Leviton) promoted Plaintiff to Acting Director of the UCM Department. (Pl. 56.1 ¶ 19). In that regard, Dr. Leviton met with Plaintiff to discuss her duties pending Defendant hiring a permanent UCM Director. (Def. 56.1 ¶ 20). Plaintiff testified as to her belief that when she was appointed Acting Director, she was going to eventually be promoted to Director of the UCM Department. (Pl. 56.1 ¶ 21). Plaintiff's bases for this belief were her understanding of Defendant's policy and her personal experience that her temporary appointment was a formality prior to her receiving the permanent position. ( Id. ).[6] Plaintiff did not, however, succeed in securing the role of permanent UCM Director.

On November 16, 2011, during a meeting with Dr. Leviton, Plaintiff was informed that she was not being considered for the UCM Director position because she had not submitted an application. (Pl. 56.1 ¶ 21). Shortly thereafter, and no later than November 29, 2011, Plaintiff advised Dr. Leviton that she wished to apply for the UCM Director position, and submitted her application for consideration. (Def. 56. ¶ 21; Pl. 56.1 ¶ 21). Despite Plaintiff seeking employment as the UCM Director, she participated in the interview process for other candidates who were applying for that position. (Pl. 56.1 ¶ 21). Dr. Leviton advised Plaintiff of his belief that her participation in the review process would not be a conflict of interest, and his desire to have her involved in the process. ( Id. ).

Dr. Leviton considered Plaintiff for the UCM Director position, and interviewed her on December 7, 2011, for that position. (Def. 56.1 ¶ 22). Dr. Leviton recalled during his deposition, refreshed by contemporaneous notes of the interview, that he posed a number of questions to Plaintiff about UCM and BLH personnel and policy, for which she could provide no answer. ( See Leviton Dep. 116-64; Def. 56.1 Ex. T). Plaintiff concedes that Dr. Leviton indicated to her and at least one other person that he was strongly considering Plaintiff to become permanent Director of UCM, but contends - at odds with the overwhelming weight of the evidence - that she was never formally interviewed by Dr. Leviton. (Pl. 56.1 ¶ 22). That is, Plaintiff agrees that she met with Dr. Leviton on December 7, but claims that she was never informed that the meeting was a job interview, and that none of the necessary paperwork was completed by Dr. Leviton to demonstrate that an interview was conducted. ( Id. ).

By December 12, 2011, Dr. Leviton determined that Plaintiff did not have the operational, procedural, or institutional knowledge required for the permanent UCM Director position. (Def. 56.1 ¶ 23; see also Leviton Dep. 162-63 (Dr. Leviton recounting impressions, all negative, of Plaintiff after the December 7 interview)). Dr. Leviton's reasons were based on his conclusions that Plaintiff did not, among other things: (i) know how to operate and train UCM staff on UCM software; (ii) timely perform the required yearly UCM staff evaluations; (iii) have familiarity with UCM data such as pending authorizations, patient admissions, intensity of care given, length of stay, and discharge statistics (all to ensure that services were being provided within payor guidelines); (iv) ensure that UCM staff provided doctors with essential services to ensure payor guidelines adherence; and (v) run daily denial of payment reports to timely review the basis for denial and ensure that such denials would not recur. (Def. 56.1 ¶ 23).

Dr. Leviton's search for candidates to fill the UCM Director position included external candidates who had experience working directly for healthcare organizations or payors and who had firsthand experience and knowledge of payor's reasons for denying reimbursement claims. (Def. 56.1 ¶¶ 24-25).[7] According to Defendants, while conducting this search, Dr. Leviton had no knowledge of Plaintiff's April 2011 EEOC Complaint or the EEOC's September 14, 2011 decision on that claim. (Def. 56.1 ¶ 25).[8] Indeed, Dr. Leviton testified that he did not become aware of Plaintiff's EEOC Complaint until after Plaintiff commenced the instant litigation. (Leviton Dep. 39-40).

On December 12, 2011, Dr. Leviton informed Plaintiff that she would not be permanently promoted to UCM Director. (Def. 56.1 ¶ 26). Plaintiff contends that on this day, Dr. Leviton told Plaintiff that she was not going to be considered for the UCM Director position because "upper management needed a change, " and that she would not be interviewed (further or in the first instance, depending on the party) for the position. (Pl. 56.1 ¶¶ 25-26).

5. Plaintiff Initiates the Instant Litigation

The day after Dr. Leviton informed Plaintiff that she would not be hired as the permanent UCM Director, she initiated the instant litigation. Initially, Plaintiff brought claims for race and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 301 (the "NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 (the "NYCHRL"). (Dkt. #1).

Dr. Leviton testified that he did not become aware of Plaintiff's lawsuit until in or around January 2013. ( See Leviton Dep. 196-98). Jasen Nhambiu testified that he first learned of this action on or around January 12, 2012, when Defendant's Risk Management Department sent Nhambiu a copy of the Complaint. (Nhambiu Dep. 26). Selena Griffin-Mahon testified that she learned of the lawsuit in February 14, 2012, from Nhambiu. ( See Griffin-Mahon Dep. 84-86).[9]

6. Defendant Hires a New UCM Director and Terminates Plaintiff's Employment

On December 30, 2011, Dr. Leviton hired Phyllis McPherson as the new UCM Director. (Def. 56.1 ¶ 28). McPherson, a black female, had 17 years of UCM payor-side experience, a Master's Degree in Nursing Administration, and 30 years of nursing experience; she also had experiential knowledge and ability to discuss in detail the various intricacies of managing reimbursement denials across the spectrum of healthcare plans. ( Id. ). On that score, Dr. Leviton testified:

[McPherson] was warm. She was friendly. She was engaging. She was embracing. She seemed like a true leader. She had a way of working with the staff that was apparent from the first time I met her. Her personality was lively.... She came from the payor side, and I really liked the fact that she had worked on the payor side, and I thought it would bring a new opportunity for the hospital to learn how payors approach denials and appeals. I thought her knowledge coming from the outside of the hospital system was going to offer us an advantage for winning our case for building stronger appeals letters as she was working on the other side of the whole process.

(Leviton Dep. 86-87).[10]

McPherson began her job at UCM Director on January 3, 2012. (McPherson Dep. 37). Consequently, at that time, Plaintiff returned to her prior position as Assistant Director, and her salary was reduced accordingly. (Pl. 56.1 ¶ 6).

By February 2012, McPherson had observed that Plaintiff failed to: (i) properly train UCM staff on the relevant software program; (ii) ensure that UCM staff were coordinating payor guidelines with doctors; (iii) timely conduct yearly performance reviews for a significant portion of UCM staff; (iv) conduct in-person patient reviews for discharge planning; (v) obtain authorization from McPherson prior to submitting reports to other hospital center departments; (vi) possess adequate knowledge regarding a certain hospital software and deal with problems related to same; (vii) act appropriately with Dr. Leviton[11]; (viii) ...

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