Lawrence v. Mehlman (Summary)

DISCRIMINATION

Lawrence v. Mehlman, No. 09-4409-cv (2d Cir. Aug. 10, 2010)

The Court of Appeals for the Second Circuit affirmed a lower court’s decision which granted summary judgment in favor of hospital-defendants in a racial discrimination case brought by a plaintiff-physician.

The plaintiff was reprimanded for failure to meet the standard of care after he failed to see a patient who had suffered a miscarriage. However, after an investigation, the hospital concluded that the physician did meet the standard of care and the reprimand was withdrawn within six weeks. The appeals court held that the physician failed to establish a prima facie case or an inference of discrimination because the reprimand, withdrawn within six weeks, did not rise to the level of a materially adverse change in the terms and conditions of employment and did not, as a matter of law, constitute adverse employment action.

 

 

Lee v. Hosp. Auth. (Summary)

MEDICAL STAFF BYLAWS – DATA BANK REPORTING

Lee v. Hosp. Auth., No. 04-12353 Non-Argument Calender D.C. Docket No. 02-00073-CV-HL-6 (11th Cir. Jan. 27, 2005)

A physician’s renewal application at a hospital led to the Medical Executive Committee appointing an ad hoc committee to initially investigate misstatements on his application and, later, his competency. The physician resigned prior to the completion of the investigation, and the hospital submitted a report to the National Practitioner Data Bank (NPDB). The physician filed a lawsuit for damages and injunctive relief based on the hospital failing to follow its bylaws and the submission of the NPDB report. Summary judgment was granted by the district court. The United States Court of Appeals for the Eleventh Circuit, in affirming the district court, held that the hospital had followed its bylaws, and that there was no evidence that the hospital made a false report to the NPDB.

 

 

LeCroy v. Interim Health Care Staffing of No. Louisiana

J ud gm e n t re nd e re d A p r i l 2 , 2 0 0 8 .
A p p l ic a tio n fo r re h ea r in g m a y b e fi le d
w ith in th e d e la y a l low ed b y A r t . 2 1 6 6 ,
L a . C .C .P .

No. 43,080-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

* * * * *

Versus

P la in tiffs -A p p e lle e s

RALPH LeCROY and
EARLINE LeCROY

INTERIM HEALTH CARE STAFFING
OF NORTH LOUISIANA, INC.

D e fend an t-A p p e l lan t

* * * * *
Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 03-0175

Honorable Benjamin Jones, Judge

* * * * *

BLUE W ILL IAM S , LLP
B y: V irg il L acy, III

HUD SON , POTTS , & BERN STE IN
B y: W i ll iam C ra ig H en ry
Jan Pe te r C h ris tian sen

DOLLAR LA IRD , LLP
B y: Johnny E . D o lla r
John C ar l ton L a ird

BRADY DEAN K ING , II

C oun se l fo r
A ppe llan t

C oun se l fo r
A ppe llee s

C oun se l fo r D e fendan t/
A ppe llee , Lou is iana
Pa tien ts C om pen sa tion
Fund

* * * * *

Before BROWN, WILLIAMS, and CARAWAY, JJ.

CARAWAY, J., concurs with written reasons.

BROWN, CHIEF JUDGE,

On June 7, 2001, Ralph LeCroy underwent arthroscopic surgical

repair of a rotator cuff tear in his left shoulder at the Glenwood Regional

Medical Center (“Glenwood”) in West Monroe, Louisiana. While in

recovery following the surgical procedure, plaintiffs, LeCroy and his wife,

alleged that Nurse Sasha Sanders over medicated LeCroy, resulting in

respiratory distress and necessitating resuscitation. Plaintiffs further alleged

that the deprivation of oxygen resulted in serious long-term health problems

to LeCroy.

At the time of the incident, Nurse Sanders was working at Glenwood

under a staffing agreement between Glenwood and Interim Health Care

Staffing of North Louisiana, Inc. (“Interim”), by which Interim provided

Glenwood with licensed nurses to fill shortages within Glenwood’s nursing

staff. Nurse Sanders was assigned to care for LeCroy by a Glenwood

supervisory nurse.

On February 26, 2002, within the applicable one-year prescriptive

period, plaintiffs filed a medical malpractice claim with the Patients’

Compensation Fund (“PCF”) against Glenwood, a qualified health care

provider. A Medical Review Panel (“MRP”) was constituted, and during the

course of the panel proceedings, plaintiffs learned that Nurse Sanders was

Interim’s employee and that neither Interim nor Nurse Sanders was a qualified

health care provider. Thereafter, on January 14, 2003, plaintiffs filed this

petition for damages against Interim in the Fourth Judicial District Court. On

May 16, 2003, at the request of the chairman of the MRP, plaintiffs filed a

separate action in the Fourth Judicial District Court entitled “Petition for Rule”

which directed Glenwood to show cause why the court “should not decide

whether the medical review panel can address the standard of care deviation

allegations with respect to Nurse Sasha Sanders . . .”

Glenwood opposed the rule to show cause on jurisdictional grounds

but in the alternative claimed that Nurse Sanders was not an employee of

Glenwood. A petition for intervention was filed by Interim opposing any

judgment “permitting the medical review panel to consider and render an

opinion concerning the medical treatment rendered by Interim Health Care

employee, Sasha Sanders, in this case.” In its memorandum to the court,

Interim stated that Nurse Sanders “was an employee of Interim Health Care

and working a shift as an independent contractor at Glenwood. It is

undisputed that Nurse Sanders was NOT an employee of Glenwood.”

(Emphasis theirs).

The trial court found that Nurse Sanders was not a qualified health

care provider under the Louisiana Medical Malpractice Act, and as such her

conduct could not be reviewed by the MRP. Plaintiffs’ Petition for Rule

was denied and dismissed. No appeal from this ruling was taken. The MRP

then ruled that Glenwood appropriately treated LeCroy; however, it also

stated that in compliance with the court’s ruling the review panel did not

address plaintiffs’ complaint concerning Nurse Sanders’ negligence.

Plaintiffs then sued Glenwood in district court. This suit was consolidated

with the present action against Interim.

More than four years after the tort action was initiated, Interim filed

an amended answer asserting the dual employee status of Nurse Sanders.

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On June 14, 2007, Interim filed a motion for summary judgment seeking a

ruling by the trial court that Nurse Sanders was a dual employee of Interim

and Glenwood.

Meanwhile, Glenwood, in the other consolidated proceeding, settled

with plaintiffs for $35,000. The judgment approving the settlement dated

August 21, 2007, provided that plaintiffs reserved all rights, claims, and

causes of action for additional compensation from the Louisiana Patients’

Compensation Fund, Nurse Sasha Sanders, Interim Health Care, and any of

their insurers. The judgment stated that, “[S]pecifically, all rights are

reserved to Interim to pursue its defense that Nurse Sanders was a dual

employee of Glenwood . . . and [is] entitled to the protections of the

Louisiana Malpractice Act.”

In September 2007, the PCF intervened to protect the Fund’s interest

and possible exposure. Plaintiffs also filed a motion for summary judgment

seeking a ruling that Nurse Sanders was solely an employee of Interim.

Plaintiffs also argued that Interim was precluded from raising the issue of

Nurse Sanders’ dual employment status as a result of the pleadings

submitted and judgment rendered on the Petition for Rule under the

doctrines of res judicata, estoppel, judicial admission, and law of the case.

The trial court denied Interim’s motion for summary judgment and

granted plaintiffs’ motion for summary judgment. The court held that

Interim’s claim that Glenwood was a “dual employer” was barred by res

judicata, estoppel, judicial admission, and, alternatively, the law of the case.

3

Discussion

A summary judgment is subject to a de novo review on appeal using

the same criteria as the trial court to determine whether summary judgment

is appropriate. Magnon v. Collins, 98-2822 (La. 07/07/99), 739 So. 2d 191;

Bumgardner v. Terra Nova Ins. Co. Ltd., 35,615 (La. App. 2d Cir.

01/23/02), 806 So. 2d 945. If the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits show there is no genuine

issue as to material fact and that the mover is entitled to judgment as a

matter of law, then summary judgment is appropriate. La. C.C.P. art.

966(B); Bumgardner, supra.

Plaintiffs filed a Petition for Rule in the Fourth Judicial District case

Ralph LeCroy and Earline LeCroy v. Glenwood Regional Medical Center,

(Docket No. M37-2033), seeking a determination by the court as to whether

the MRP could review Nurse Sanders’ standard of care. Interim intervened

and filed an opposition in the proceeding. Glenwood filed an independent

opposition. The court concluded that the MRP could not review Nurse

Sanders’ actions because she was not a qualified health care provider.

Plaintiffs argue that, in order to reach this conclusion, the trial court must

have found that Nurse Sanders was not an employee of Glenwood and that

Interim is now barred from raising the issue of Sanders’ dual employment

status under the doctrines of res judicata, judicial confession, equitable

estoppel, and law of the case.

A legal presumption exists that hospitals retain and exercise the right

to control nurses provided to the hospital by an agency. Medical Review

4

Panel Proceedings for Claim of Tinoco v. Meadowcrest Hosp., 03-0272 (La.

App. 4th Cir. 09/17/03), 858 So. 2d 99. In Tinoco, even though a nurse

was a direct employee of a staffing agency, the court determined that

because the hospital’s supervisory/managerial employees controlled the

daily work assignments and work activities of the agency nurses, both the

staffing agency and the hospital were responsible for the nurse’s negligence.

The court in Tinoco, 858 So. 2d at 107-08, reasoned that

nurses working under contract with a hospital can clearly be
deemed to be employees, because nurses have less autonomy
than physicians. . . . The hospital is presumed to have control
over the actions of its nurses, whether they are agency nurses or
regular hospital employees.

Under the doctrine of respondeat superior, employers are responsible

for the torts of their employees committed during the course and scope of

employment. La. C.C. art. 2320; Pender v. Elmore, 37,690 (La. App. 2d

Cir. 09/24/03), 855 So. 2d 930, writ denied, 03-2968 (La. 01/16/04), 864

So. 2d 632. In determining whether an employment relationship exists, the

jurisprudence of this state has uniformly held that the most important

element to be considered is the right of control and supervision over an

individual. Savoie v. Fireman’s Fund Ins. Co., 347 So. 2d 188 (La. 1977);

Clinton v. Reigel By-Products, Inc., 42,497 (La. App. 2d Cir. 09/19/07), 965

So. 2d 1006. Factors to be considered are the selection and engagement of

the worker, the payment of wages, and the power of control and dismissal.

Pender, supra; Franklin v. Haughton Timber Co., 377 So. 2d 400 (La. App.

2d Cir. 1979), writ denied, 380 So. 2d 624 (La. 1980). The most important

inquiry, however, is whether the principal retained the right to control the

5

work. In applying this test, it is not the supervision and control actually

exercised which is significant; the important question is whether, from the

nature of the relationship, the right to do so exists. Ledent v. Guaranty

National Ins. Co., 31,346 (La. App. 2d Cir. 12/28/98), 723 So. 2d 531;

Slaughter v. Georgia Casualty & Surety Co., 415 So. 2d 312 (La. App. 2d

Cir. 1982), writ denied, 420 So. 2d 979 (La. 1982).

In Morgan v. ABC Manufacturer, 97-0956 (La. 05/01/98), 710 So. 2d

1077, 1082-3, the Louisiana Supreme Court stated:

Our jurisprudence has held that special and general employers
may be solidarily liable in tort to third parties injured by the
negligence of their employees. In LeJeune v. Allstate Ins. Co.,
365 So. 2d 471 (La. 1978), we addressed the issue of whether
the general employer of a negligent employee remained liable
for its employee’s tort despite the fact that the employee had
been borrowed to perform services for a special employer at the
time of an accident. We held that a general and special
employer may be solidarily liable for injuries to a third party
caused by an employee’s negligence.

. . .

[B]oth employers had contemporaneous control over Hines,
and both contemporaneously benefitted from his labor. It is
therefore reasonable that considering the overlapping control
and shared financial interest that they share liability.

Again, we note that the Fourth Circuit in Tinoco, supra, found that a

legal presumption existed that the hospital retained and exercised the right

to control agency nurses working at the hospital.

The record does not show affirmatively that the issue of Nurse

Sanders’ possible dual employment was adjudicated in the Petition for Rule

filed by plaintiffs against Glenwood. We also note that the judgment

approving the later settlement specifically allowed Interim to pursue its dual

6

employment claim. Accordingly, we find that the trial court erred in

applying res judicata, judicial confession, equitable estoppel, and law of the

case to bar Interim from now claiming dual employment status for Nurse

Sanders.

Nurse Sanders was an employee of Interim and paid by Interim. She

was, however, controlled by Glenwood at the time of the alleged incident.

She was assigned by Glenwood to care for LeCroy and instructed by

Glenwood’s supervisory nurse as to that care. There were conflicting

factual questions and summary judgment was not proper. La. C.C.P. art.

966.

Conclusion

For the forgoing reasons, we AFFIRM the trial court’s denial of

Interim’s motion for summary judgment, REVERSE the granting of Ralph

and Earline LeCroy’s motion for partial summary judgment, and REMAND

for further proceedings consistent with this opinion. Costs are assessed

equally to plaintiffs and Interim.

7

CARAWAY, J., concurring.

I concur in the majority’s ruling and add the following.

Interim has inconsistently argued at various times in these protracted

and confused proceedings that Sanders either was not the employee of

Glenwood or was the employee of both Glenwood and Interim. What is

consistent in the arguments of Interim, however, is that Sanders was always

its employee for whom Interim is vicariously liable. Another important fact

is that Interim is afforded no protection as a health care provider covered by

the medical malpractice act. Accordingly, I find no legal relevance in the

issue of dual employment as now presented to the court in the two opposing

motions for summary judgment. The issue may become relevant in the

event the issue of prescription is raised. Likewise, should Interim choose to

seek contribution from Glenwood or the Patients’ Compensation Fund

(“PCF”) because of the solidary vicarious responsibility of the dual

employers, a factual determination of whether dual employment existed may

become relevant. In any event, none of the parties, including the PCF,

should be afforded the defense of issue preclusion or res judicata based

upon the procedurally unsanctioned and unjustified “Petition for Rule”

action which previously occurred. Cf. La. R.S. 13:4232(A)(1). That strange

proceeding, in which plaintiffs prayed for no specific relief, was denied and

dismissed, accomplishing no binding resolution of anything.

1

Lawrence v. Nyack Emergency Physicians (Summary)

DISCRIMINATION

Lawrence v. Nyack Emergency Physicians, No. 06 Civ. 3580 (S.D.N.Y. Sept. 23, 2009)

The United States District Court for the Southern District of New York granted a motion to dismiss filed by a professional corporation that provided emergency services in a hospital in a case where a physician employed by the corporation sued both the corporation and its director for race discrimination under Title VII of the Civil Rights Act of 1964. The physician had received a letter of reprimand from the director pertaining to an adverse incident that had occurred in the hospital’s emergency room on an evening in which the physician was working. The physician alleged that this reprimand led to the "shorting" of his shifts, as well as a working environment that was "poisoned" against him. The court noted that it was the physician himself who "publicized" communications about the incident that had occurred in the emergency department to others not involved in the situation and that, by his own admission, not only had the decrease in his shifts predated the incident, but it had also been at least partially based on the fact that he was working in three different hospital emergency departments simultaneously. Ultimately, the court granted the corporation’s motion to dismiss finding that in the absence of any material change in the terms and conditions of the physician’s employment, the letter of reprimand alone was insufficient evidence to establish the existence of a racially motivated adverse employment action. The court also held that the director’s conduct, which included comments that the physician argued showed racial bias, did not support a finding of discriminatory intent, noting that "perceived slights, or even personality conflicts" are insufficient to support such a finding.

 

LeCroy v. Interim Health Care Staffing of No. Louisiana

AGENCY

LeCroy v. Interim Health Care Staffing of No. Louisiana, Inc., No. 43,080-CA (La. App. 2 Cir. Apr. 2, 2008)

The Court of Appeal of Louisiana reversed a grant of partial summary judgment in favor of a patient allegedly injured by an agency nurse working under a hospital supervisor, holding that there were factual questions regarding whether the agency nurse was a dual employee of the staffing company and the hospital. The court also found that summary judgment in favor of the patient on the grounds that the issue had been adjudicated previously in a judgment approving the patient’s settlement with the hospital was improper.

The court noted that, regarding the question whether an agency nurse is a hospital employee, "a legal presumption exists that hospitals retain and exercise the right to control nurses provided to the hospital by an agency."

In making its decision, the court relied upon Medical Review Panel Proceedings for Claim of Tinoco v. Meadowcrest Hosp., No. 03-0272 (La. App. Sept. 17, 2003), which held that, even though a nurse was a direct employee of a staffing agency, because the hospital’s supervisory/managerial employees controlled the daily work responsibilities of the agency nurses, both the staffing agency and the hospital were responsible for the nurse’s negligence.

 

Leal v. Secretary, U.S. Dep’t of Health & Human Serv. (Summary)

NATIONAL PRACTITIONER DATA BANK

Leal v. Secretary, U.S. Dep’t of Health & Human Serv., No. 09-15727 D.C. Docket No. 08-01062-CV-ORL-22-GJK (11th Cir., Sept. 22, 2010)

The United States Court of Appeals for the Eleventh Circuit affirmed a district court’s judgment denying relief to a physician who sought to have a report removed from the National Practitioner Data Bank.

The hospital filed a report with the Data Bank following the summary suspension of the physician’s clinical privileges due to his violent, threatening, and physically destructive and damaging behavior. The physician argued that the report was factually inaccurate and that the Secretary’s review of the report was arbitrary and capricious. However, the court explained that the Secretary decides only whether the report accurately describes the adverse action that was taken against the physician and the reporting hospital’s explanation for the action; the Secretary does not decide whether incidents listed in the report actually occurred.

Dr. Leal also argued that the 60-day suspension of his privileges was not a reportable event because he was not suspended for conduct that affects or could affect adversely the health or welfare of a patient or patients. The court found that the hospital was required to report its disciplinary action to the Data Bank “even though its halls were not littered with injured patients as a result of Dr. Leal’s very bad day” and that “disruptive and abusive behavior by a physician, even if not resulting in actual or immediate harm to a patient, poses a serious threat to patient health or welfare.”

Dr. Leal’s final argument was that summary suspensions are only reportable when imposed to protect patients from imminent danger, and that his suspension was not imposed because of imminent danger to patients. The court rejected that argument finding that imminent danger is not required before a summary suspension is reportable, that a hospital is required to report a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days, and that a summary suspension is a professional review action.

 

Lawrence v. Mehlman (Full Text)

0 9 -4 4 0 9 – c v
L aw r e n c e v . M e h lm a n

UN ITED STATES COURT O F APPEALS
FOR THE SECOND C IRCU IT

SUMM ARY ORDER

R U L IN G S BY SUMM A R Y OR D E R DO NO T HA V E PR E C E D E N T IA L E F FE C T . C IT A T IO N TO A
SUM M A R Y O R D E R F IL E D O N O R A FT E R JA N U A R Y 1 , 20 0 7 , IS PE RM IT T E D A N D IS GO V E R N E D B Y
F ED E R A L R U L E O F A PP EL L A T E PRO C E D U R E 32 .1 A N D TH IS CO U R T ’S LO C A L R U L E 32 .1 .1 . W H E N
C IT ING A SUM M A R Y O R D E R IN A DO C UM E N T F IL E D W ITH TH IS CO U R T , A PA R T Y M U ST C IT E
E ITH ER TH E FE D ER A L A P PE N D IX O R A N E L E C TR O N IC D A T A BA SE (W ITH TH E NO TA T IO N
“SUM M A R Y O R D E R ” ) . A PA R T Y C IT IN G A SUM M A R Y O R D ER M U ST SE R V E A C O PY O F IT O N A N Y
P A R T Y NO T R E P R E SE N T E D B Y CO U N S E L .

A t a s tated term o f the U n ited S tate s C ou rt o f A ppea ls fo r the Second C ircu it, he ld
a t the D an ie l Pa trick M oyn ihan U n ited S ta te s C ou rthou se , 500 Pea rl S tree t, in the C ity o f
N ew Y o rk , on the 10 day o f A ugu s t, tw o thou sand ten .
th

PRESENT : REENA RAGG I ,
GERARD E . LYNCH ,
DENNY CH IN ,
C ircu it Judge s.

– – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – –
PETER LAW RENCE ,

P la in tiff-Appe llan t,

v .

N o . 09 -4409 -cv

IRA M EHLMAN , as a ide r and abe tte r , NYACK
EM ERGENCY PHY S IC IAN S , P .C .,
D e fendan ts-Appe llee s,

EM TEL NYACK PR INC IPALS GROU P ,
D e fendan t.
– – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – –

FOR A PPELLANT :

FOR A PPELLEES :

M ichae l H . Su s sm an , Su s sm an & W a tk in s , G o shen , N ew
Y o rk .

Edw a rd F . Beane , D onna E . F ro sco , K eane & B eane ,
P .C ., W h ite P la in s , N ew Y o rk .

A ppea l from the U n i ted S ta tes D is tr ic t C ou r t for the Sou thern D is tr ic t of N ew Y o rk

(R obe rt W . Sw ee t, Judge) .

U PON DUE CON S IDERAT ION , IT IS HEREBY ORDERED , AD JUDGED , AND

DECREED tha t the judgm en t en te red on O c tobe r 14 , 2009 , is A FF IRMED .

P la in tiff Pe te r L aw rence , an A frican -Am e rican doc to r w ho w o rked in the eme rgency

depa rtm en t a t N yack H o sp ita l, sued de fendan ts Ira M eh lm an , the departm en t d irec to r , and

N y a ck Em e rg en cy Phy sic ian s , P .C . (“NEP ” ), th e co rpo ra tion th a t ope ra ted th e em e rg en cy

depa rtm en t, fo r race d isc rim ina tion unde r 42 U .S .C . § 1981 , T itle V II o f the C iv il R igh ts A c t

o f 1964 , 42 U .S .C . § 2000e e t seq ., and N ew Y o rk H um an R igh ts Law . L aw rence now

appea ls from an aw a rd o f summ a ry judgm en t fo r de fendan ts . See Law rence v . N yack

Em e rgency Phy sic ian s , P .C ., 659 F . Supp . 2d 584 (S .D .N .Y . 2009 ). W e rev iew the d is tric t

cou r t’s dec is ion de novo , and w e w ill affirm on ly if the reco rd , v iew ed in the ligh t m o s t

favo rab le to the nonm ov ing party , revea ls no genu ine issue o f ma te ria l fac t. See Fed . R . C iv .

P . 56 (c); A nde rson v . L ibe rty Lobby , Inc ., 477 U .S . 242 , 247 -48 (1986 ); R edd v . W righ t, 597

F .3d 532 , 535 -36 (2d C ir. 2010 ) . W e assum e the par t ies’ fam i liar ity w i th the fac ts and reco rd

o f p rio r p roceed ing s , w h ich w e re fe rence on ly as necessa ry to exp la in ou r dec is ion to a ffirm .

W e ana lyze Law rence’s d isc rim ina tion c la im s unde r the fam ilia r bu rden -sh ifting

framew o rk se t fo rth in M cD onne ll D oug la s C o rp . v . G reen , 411 U .S . 792 , 802 -03 (1973 )

(T itle V II) . See Sp iege l v . S chu lm ann , 604 F .3d 72 , 80 (2d C ir . 2010 ) (N ew Y o rk H um an

R igh ts L aw ) ; Lopez v . S .B . Thom as , Inc ., 831 F .2d 1184 , 1187 -88 (2d C ir. 1987 ) (§ 1981 ) .

2

O n appea l, L aw rence subm its tha t the d is tric t cou rt e rred in conc lud ing tha t he cou ld no t

e stab lish a p rim a fac ie case o f d isc rim ina tion becau se M eh lm an ’s June 9 , 2005 rep rim and

– w h ich w as d isavow ed soon the rea f te r – d id no t , as a m a tte r o f law , con s titu te adve rse

emp loym en t ac tion . See , e .g ., M a th irampuzha v . Po tte r, 548 F .3d 70 , 78 (2d C ir . 2008 )
1

(ho ld ing tha t p la in tiff mu s t show “he su ffe red an adve rse emp loym en t ac tion” ); W illiam s v .

R .H . D onne lley , C o rp ., 368 F .3d 123 , 128 (2d C ir . 2004 ) (a ffirm ing summ a ry judgm en t fo r

emp loye r w he re , in te r a lia , p la in tiff fa iled to e stab lish tha t re fu sa l o f tran sfe r “con stitu ted an

adve rse em p loym en t ac tion , as requ ired unde r the th ird p rong o f the T itle V II p rim a fac ie

ca se” ) .

R ep rim and s o r n ega tive eva lua tion lette rs m ay , in som e c ircum stances, con stitu te

adverse em p loym en t ac t ion , see Z e ln ik v . Fash ion Ins t . o f T ech ., 464 F .3d 217 , 226 (2d C ir.

2006 ) ; Sanders v . N .Y . C i ty H um an R es . A dm in . , 361 F .3d 749 , 755 -56 (2d C ir. 2004 ) ;

T reg lia v . Tow n o f M an lius, 313 F .3d 713 , 720 (2d C ir. 2002 ); bu t cf . W eek s v . N .Y . S tate

(D iv . o f Pa ro le ), 273 F .3d 76 , 86 (2d C ir . 2001 ) , ab roga ted on o the r g round s by N a tiona l

R .R . Pa ssenge r C o rp . v . M o rgan , 536 U .S . 101 (2002 ) , and w he the r they do is typ ica lly a

que stion o f fac t fo r the ju ry , see Sanders v . N .Y . C ity H um an R e s . A dm in ., 361 F .3d a t 756 .

H e re , how eve r, the reco rd show s tha t, a fte r fu rthe r investiga ting the M ay 26 , 2005 inc iden t,

O n June 9 , 2005 , M eh lm an sen t L aw rence a m em o randum adv ising h im tha t he d id
1
no t ac t app rop ria te ly in fa iling to see a pa tien t w ho had su ffe red a m isca rriage on M ay 26 ,
2005 , and on Ju ly 6 , 2005 , the NEP p residen t sen t L aw rence a le tte r dem and ing h is
acknow ledgm en t tha t he w ou ld fo l low M eh lman ’s in s truc t ion s regard ing the ho sp i ta l’s
s tanda rd o f ca re .

3

ho sp ita l o ffic ia ls conc luded tha t L aw rence d id , in fac t, fo llow the app rop ria te standa rd o f

ca re . A cco rd ing ly , on Ju ly 19 , 2005 , John Pe llicone , the ch ie f m ed ica l o ffice r a t N yack

H o sp ital, sen t L aw rence a m em o randum sta ting tha t “th e re is now enough ev idence to

ind ica te tha t a ll s tanda rd s o f ca re w e re me t . A ny p rev iou s co rre spondence c ritiqu ing you r

ac tion s w [as] p rem a tu re and lack [ed ] com p le te in fo rm a tion .” Pe ll icon e A ff . ¶ 8 . Thu s ,

becau se he w a s clea red o f any w rongdo ing , L aw rence’s c la im reduces to a comp la in t abou t

the lim ited e ffec t o f a ha stily issued and sw iftly d isavow ed rep rim and .

L aw rence c ite s no ca se ho ld ing tha t a rep rim and , w ithd raw n w ith in s ix w eek s, rise s

to the lev e l o f “a m a ter ially adve rse change in the term s and cond ition s o f em p loym en t.”

M a th iram puzh a v . Po t ter , 548 F .3d a t 78 ( in terna l quo ta tion m ark s and em phas is om i tted) ;

see a lso B eye r v . C oun ty o f N a ssau , 524 F .3d 160 , 164 (2d C ir . 2008 ) (“ [W ]e requ ire a

p la in tiff to p ro ffe r ob jec tive ind ic ia o f m a te ria l d isadvan tage ; ‘sub jec tive , pe rsona l

d isappo in tm en t’ is no t enough .” (b racke ts om itted ) (quo ting W illiam s v . R .H . D onne l ley ,

C o rp ., 368 F .3d a t 128 )) ; c f. Sande rs v . N .Y . C ity H um an R e s . A dm in ., 361 F .3d a t 756

(a ffirm ing ju ry ve rd ic t fo r emp loye r w he re c ritica l eva lua tion w a s removed from file and

p rom o tion to supe rv iso r becam e pe rm anen t) . W h ile Law rence a sse rts repu ta tiona l in ju ry ,

tha t a rgum en t fa ils fo r the rea son s ta ted by the d is tric t cou rt: the re is no ev idence o f

defendan ts’ pub l ic iz ing the rep r im and ; thu s , any such in jury resu l ted so le ly from L aw rence ’s

pub lica tion o f the rep rim and to ga in suppo rt among h is ho sp ita l co lleagues . Fu r the r, to the

ex ten t L aw rence com p la in s ab ou t h is sub jec t ive , pe rson a l d isappo in tm en t reg ard ing sh ift

4

a ss ignm en ts bo th be fo re and afte r the cha llenged rep r im and , h is c la im tha t he w a s g iven

few e r sh ifts o r le ss de sirab le sh ifts is en tire ly specu la tive . L aw rence p rov ide s no ho sp ita l

reco rds to spec ify the d a tes o f a l leg ed sh ift reduc t ion s , and no ev iden ce o f w h ich doc tors

rece ived m o re o r be tter sh ift assignm en ts than he d id . A cco rd ing ly , like the d istric t cou rt,
2

w e conc lude tha t the reco rd w ou ld no t pe rm it a rea sonab le ju ry to find tha t the cha llenged

d isavow ed rep r im and , by i tse lf , su ff ic ien t ly a ffec ted the term s and cond i tion s o f L aw rence ’s

emp loym en t to con stitu te an adve rse emp loym en t ac tion .

L aw rence a lso ch a l lenges the d is tr ic t cou r t’s de term ina t ion tha t he cou ld no t sa tisfy

the fina l p rong o f a p rim a fac ie d isc rim ina tion ca se , name ly , a show ing o f su rround ing

c ircum s tances pe rm itting an in fe rence o f d isc rim ina tion . See B eye r v . C oun ty o f N a ssau ,

524 F .3d a t 163 . L aw rence con tend s tha t such an infe rence w as suppo rted by the d ispa ra te

trea tm en t o f M a rk K h ilnan i, a non -A frican -Am e rican doc to r on du ty on M ay 26 , 2005 , w ho

d id no t rece ive a s im ila r rep rim and . The reco rd show s , how eve r, tha t Law rence and K h ilnan i

w e re no t “ sim ila rly s itua ted in a ll m a te ria l re spec ts” becau se (1 ) N yack ho sp ita l o ffic ia ls no t

cha rged w ith d isc rim ina tion comp la ined abou t L aw rence’s conduc t, bu t no t K h ilnan i’s ; and

(2) L aw rence , the fo rm er in ter im em ergen cy dep ar tm en t d irec tor , w as s ign ifican t ly m o re

In h is b r ie f , L aw rence a lso c ites h is ow n d epo s ition tes timony tha t “ the re w as a
2
d iscu ss ion in the g roup” du ring w h ich o the r doc to rs exp re ssed the ir v iew tha t L aw rence
rece ived w o rse sh ift ass ignm en ts b ecau se o f h is race . L aw rence D ep . T r . a t 177 . In
rev iew ing the d is tric t cou r t’s aw a rd o f summ a ry judgm en t, L aw rence’s hea rsay accoun t o f
doc tors’ s ta tem en ts of op in ion is no t adm iss ib le in ev iden ce . See Fed . R . C iv . P . 56 (e)(1) ;
Fed . R . Ev id . 802 .

5

expe rienced than K h ilnan i, a recen t m ed ica l schoo l g radua te . M ande ll v . C oun ty o f Su ffo lk ,

316 F .3d 368 , 379 (2d C ir . 2003 ); acco rd G raham v . Long Is land R .R ., 230 F .3d 34 , 39 (2d

C ir . 2000 ) . The reco rd doe s ind ica te , how eve r, tha t M eh lm an m ade rac ia lly in sen sitive

comm en ts on seve ra l occas ion s . N eve rthe le ss , becau se Law rence h a s fa iled to adduce
3

ev iden ce o f adverse em p loym en t ac t ion , w e n eed no t here dec ide w he the r M eh lman ’s

rema rk s a re su ffic ien t, even in the ab sence o f d ispa ra te trea tm en t, to pe rm it an in fe rence o f

d isc rim ina tion in th is ca se .

W e have con side red Law rence’s o the r a rgum en ts on appea l and conc lude tha t they

a re w ithou t m e rit. A cco rd ing ly , w e A FF IRM the judgm en t o f the d istric t cou rt.

FOR TH E COURT :
CATHER INE O ’HAGAN W OLFE , C lerk o f Cou r t

L aw rence does no t as se rt tha t “ th e w o rkp lace w as so seve re ly pe rm ea ted w ith
3
d isc r im ina to ry in tim ida t ion , r id icu le , and insu l t tha t the te rm s and cond ition s o f [h is]
emp loym en t w e re the reby a lte red .” F inche r v . D epo sito ry T ru st & C lea ring C o rp ., 604 F .3d
712 , 723 -24 (2d C ir. 2010 ) (d iscu ss ing e lem en ts of ho s t ile w o rk env ironm en t c la im ) .

6

Lection v. Dyll,

REVERSE and REMAND and Opinion Filed June 20, 2001

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs. (Summary)

NPDB REPORTING

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs., No. 6:08-cv-1062-Orl-22GJK (M.D.Fla. Sept. 15, 2009)

The United States District Court for the Middle District of Florida, Orlando Division, upheld a decision by the Secretary of HHS denying a physician’s request to void an adverse action report that was filed with the National Practitioner Data Bank. The Secretary found that the report was accurate and that the suspension of the physician’s clinical privileges following an incident in which he displayed “violent, threatening, and physically destructive and damaging behavior” was a reportable event. The court ruled that both of those findings were supported by substantial evidence, noting that the physician confirmed that the incidents cited by the hospital for imposing the suspension in fact occurred. The court held that the Secretary was correct in rejecting the physician’s argument that the suspension was not reportable “because his alleged conduct did not pose an imminent danger to the health of any individual, was not the result of a professional review action, and was unrelated to professional competence or conduct that adversely affected the health or welfare of a patient.”

Lawrence v. Nyack Emergency Physicians (Full Text)

rsiUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

PETER LAWRENCE, M. D. ,

Plaintiff,

06 Civ. 3580

OPINION

NYACK EMERGENCY PHYSICIANS, P.C.,
DR. IRA MEHLMAN, As Aider and
Abettor,

Defendants

A P P E A R A N C E S :

ELECTRONICALLY FILED

Attorneys for Plaintiffs

SUSSMAN & WATKINS
40 Park Place
P.O. Box 1005
Goshen, New York 10924
By: Michael H. Sussman, Esq.

Attorneys for Defendants

KEANE & BEANE, P.C.
445 Hamilton Avenue, 1 5 ~ ~
Floor
White Plains, New York 10601
By: Edward F. Beane, Esq.
Donna E. Frosco, Esq.

S w e e t , D . J .

Defendants Nyack Emergency Physicians, P. C.

(“NEP”) , Dr. Ira Mehlman D r . Mehlman”) (collectively, the

“Defendants”) have moved pursuant to Rule 56, Fed. R. Civ.

P., to dismiss the discrimination complaint of plaintiff
Dr. Peter Lawrence (“Dr. Lawrence” or the ‘Plaintiff”) .

Upon the facts and conclusions set forth below, the motion

is granted, and the complaint dismissed.

The unjustified letter of reprimand issued by Dr.

Mehlman does not constitute a racially motivated adverse

employment action under the unfortunate circumstances

revealed by the consolidated factual statements of the

parties.

I. BACKGROUND

A .

P r i o r P r o c e e d i n g s

The complaint in this action was filed by Dr.

Lawrence on May 11, 2006.

It alleged claims of race

discrimination under 42 U.S.C. § 1981(a) and Title VII of

the Civil Rights Act of 1964 (as amended), as well as under

the New York State Executive Law Section 296.

Discovery proceeded and the submission of

materials relating to the instant motion was completed on

February 21, 2008. The action was reassigned to this Court

on June 5, 2009.

B. The Facts

The facts are set forth in the Defendants’

Statement of Undisputed Facts Pursuant to Local Rule 56.1

(“Defendants’ Statement”), the Plaintiff’s Response to

Defendants’ Statement of Undisputed Facts Pursuant to Local

Rule 56.1 and Counterstatement of Facts (“Plaintiff’s

Response”), Defendants’ Reply to Plaintiff’ s Response to

Defendants’ Statement of Undisputed Facts Pursuant to Local

Rule 56.1 and Response to Plaintiff’s Counterstatement of

Facts

(“Defendants’ Reply”) ,

and

the

accompanying

affidavits and declarations. Despite the details thus set

forth and the parties’ contentions with respect to

admissibility, the material facts are not in dispute except

as noted below.

NEP (formerly known as Nyack Principal’s Group,

Inc.) is a New York professional corporation that provided

management and professional medical services for the

Emergency Department (the “ED”) at Nyack Hospital.

In

September or October, 2002, NEP was retained by Nyack

Hospital to manage the ED and provide emergency medical

services at the hospital.

The contract between NEP and

Nyack Hospital was eventually ended by mutual agreement at

the initiative of NEP due to financial considerations.

Dr. Mehlman is a medical doctor licensed to

practice medicine in the State of New York, was employed by

NEP, and served as Director of the ED at Nyack Hospital.

Dr. Mehlman is white.

Dr. Lawrence, an African-American, is a medical

doctor and also has a law degree. He was employed by NEP

as an emergency room physician. From the inception of its

contract with Nyack Hospital in 2002 until the end of the

contract on October 31, 2006, NEP employed Dr. Lawrence as

a staff physician in the ED.

Dr. Joseph Degioanni (“Dr. Degioanni”) is a

medical doctor serving as President of NEP. He is board

certified in Aerospace Medicine and Emergency Medicine.

During the events from which this lawsuit arises,

David Freed (“Freed”) served as Chief Executive Officer of

Nyack Hospital. Dr. John Pellicone (“Dr. Pellicone”) was

Chief Medical Officer of the Nyack Hospital Medical Staff

and oversaw quality control issues at the hospital,

including management of the ED.

Dr. Richard King (“Dr.

King”) was President of the Medical Executives of Nyack

Hospital.

Upon assuming operations of the Nyack Hospital

ED, NEP initially hired the majority of ED physicians then

employed in the Nyack Hospital ED, including Dr. Lawrence.

NEP also recruited an outside physician, Dr. Chachkes, to

serve as the Director of the ED.

Dr. Chachkes was

subsequently terminated at the request of Freed.

Upon the departure of Dr. Chachkes, a search for

a new permanent Director was undertaken, and Dr. Lawrence

was appointed as Interim Director of the ED. Freed agreed

to the appointment of Plaintiff as Interim Director. At

the request of Dr. King, Plaintiff also interviewed for the

permanent position of Director of the ED.

Although Dr. Degioanni did not make any

recommendations concerning who should be hired as the

permanent Director, he did inform Freed that Plaintiff “had

done a good job” in the ED. Ex. V to Decl. in Supp. of

Defs.’ Mot. for S u m . J. (“Beane Decl.”) at 39:23-40:21.

Dr. Degioanni presented a number of candidates, including

both Dr. Mehlman and Dr. Lawrence, to a selection committee

appointed by Nyack Hospital. The decision as to whom NEP

should hire as the permanent Director of the ED was made by

the selection committee.

During his interview, Dr. Lawrence informed the

selection committee that he had come to the interview

because of his friendship with Dr. King and that ‘if the

hospital wants me to be the director, I would be glad to do

that, but my personal wish is that I don’t want to do that

job.”

Ex. 3 to Affirm. in Resp. to Defs.’ Statement of

Undisputed Facts Pursuant to Local Rule 56.1 (“Sussman

Aff . ” ) at 41: 15-24.

Dr. Mehlman had not been employed previously at

Nyack Hospital at the time he applied for the position of

Director of the ED.

Following the interviews, Freed informed Dr.

Degioanni of the committee’s selection of Dr. Mehlman as

the permanent Director of the Nyack ED, and NEP thereafter

hired Dr. Mehlman as such.

Dr. Mehlman commenced his employment as Director

of the Nyack ED in late autumn 2003. From the beginning of

Dr. Mehlman’s employment by NEP, his intention, which he

communicated to NEP, was to stay at Nyack Hospital for only

two to three years.

Dr. Mehlman eventually served as

Director of the ED until November 2005, at which time a new

ED Director was identified and hired.

Thereafter, Dr.

Mehlman served as Associate Director through January 2006

and then as a staff physician from January 2006 until early

November 2006.

Dr. Lawrence testified that Dr. Mehlman, as the

Director of the ED, was his “boss” and had administrative

responsibility for the ER, including the assignment of

shifts to the ED staff physicians. Sussman Aff. Ex. 3 at

216:2. In assigning shifts, Dr. Mehlman solicited from the

ED staff physicians their preferences concerning shifts and

generated a matrix to be completed by each ED physician

concerning his or her preferences for (a) number of shifts

and (b) times of shifts.

Dr. Lawrence routinely requested to work only day

shifts and no Sundays.

During Dr. Mehlman’s tenure as

Director of the ED, Dr. Lawrence was the only doctor who

requested that he not be assigned night shifts or any

shifts on Sundays.

According to Dr. Mehlman, Dr.

Lawrence’s

requests were incompatible with staffing

requirements for the ED and unfair to the other staff

physicians. However, Dr. Lawrence was not the only staff

physician who did not have all of his or her requests

concerning shifts granted.

Dr. Mehlman did not assign six shifts in

consecutive days to the same staff physician if such

scheduling could be avoided, as each shift is 12 hours and

such an assignment could raise safety issues. On occasion,

however, Dr. Mehlman did assign Dr. Lawrence to six

consecutive shifts.

According to Dr. Mehlman, prior to the incident

that occurred in the evening of May 26, 2005, from which

this lawsuit originates (the “May 26 Incident”), Dr.

Lawrence never complained about the assignment of shifts, a

contention denied by Dr. Lawrence.

Doctors employed by NEP in the Nyack ED typically

worked 13 to 18 shifts per month.

According to Dr.

Lawrence, Dr. Mehlman reduced his shifts per month from 17-

23 to 8-11. However, Dr. Lawrence never submitted written

complaints of any kind to Dr. Mehlman’s superiors at NEP

concerning scheduling issues.

After Dr. Mehlman stepped down as Director of the

ED, Dr. Lawrence requested fewer shifts because he was also

employed in the emergency department of another hospital.

According to Dr. Lawrence, he worked in the emergency rooms

of both Phelps Memorial Hospital and Passcack Valley

Hospital while employed at Nyack Hospital due to the

reduction in the number of shifts to which he was assigned

at Nyack Hospital.

Dr. Lawrence also recognized that in addition to

his authority to assign shifts to staff physicians in the

ED, Dr. Mehlman possessed the authority to set policies for

the ED with which Dr. Lawrence was required to comply.

During the time Dr. Mehlman was Director, there

existed a policy concerning “linkage” between doctors and

mid-level providers which was communicated to the ED staff.

A mid-level provider is also known as a “physician

extender,” and is a physician assistant or nurse

practitioner.

As Director, Dr. Mehlman promulgated

additional policies emphasizing this “linkage” requirement.

Dr. Lawrence has testified that he was aware of the various

policies

concerning

mid-level

providers/physician

assistants issued by NEP prior to May 26, 2005.

Dr. Lawrence has alleged that during his time as

Director, Dr. Mehlman made several racially offensive

statements, including “My father did a lot for Black

people;” “I ran into John Coltrane’s nephew this weekend;”

“We’ve got good doctors here – we have Dr. Lawrence, the

good-looking black guy that can dance, and Dr. Rymond, who

went to Harvard;” “Dr. Lawrence works on Jamaican time.

Screw Jamaican time.”

Pl.’s Aff. in Resp. to Defs.’

Statement of Undisputed Facts Pursuant to Local Rule 56.1

(“Lawrence Aff . ” ) ¶ 24.

Dr. Mehlman has denied making

these statements. Dr. Lawrence, however, never asked Dr.

Mehlman to refrain from making these comments prior to the

May 26 Incident, although Dr. Lawrence has contended that

he told Dr. Degioanni in June 2004 about his belief that

Dr. Mehlman harbored racial animus towards him.

Dr.

Lawrence also testified that he informed Dr. King of his

belief that Dr. Mehlman was discriminating against him on

the basis of race.

Dr. Degioanni testified that he was not aware of

any conflict between Dr. Lawrence and Dr. Mehlman prior to

the May 26 Incident. Dr. Degioanni also does not recall

any complaints by Dr. Lawrence or any other physician in

the ED concerning Dr. Mehlman’s conduct prior to May 2005.

Dr. Lawrence, however, has contended that in addition to

his complaints to Dr. Degioanni, other doctors complained

in meetings about Dr. Mehlman’s unresponsiveness to their

concerns about the operations of the ED.

As admitted by Dr. Lawrence, the Complaint was

incorrect when it asserts that Plaintiff was the only

African-American employed by NEP in the Nyack Hospital ED.

In fact, Dr. Sam Jones (“Dr. Jones”) was an African-

American physician employed in the ED on the date of the

Complaint.

Dr. Augustine Alifo was another African-

American physician offered employment in the ED as

Assistant Director during the time Dr. Lawrence was

employed by NEP.

Dr. Deborah White, an African-American

woman, also was offered employment in the ED during

Plaintiff’s employment with NEP.

The May 2 6 , 2005 I n c i d e n t

On the evening of May 26, 2005, an incident

occurred in the Nyack Hospital ED involving a patient who

had suffered a miscarriage. Dr. Lawrence was a physician

on duty that day in the ED from 12:OO noon to 12:OO a.m.

Another physician, Dr. Mark Khilnani D r . Khilnani”) was a

physician on duty in the ED from 7:00 p.m. to 7:00 a.m. the

next morning.

Dr. Khilnani, a recent medical school

graduate, was less experienced than Dr. Lawrence and is not

African-American. Dr. Mehlman was not working in the ED on

the evening of May 26, 2005.

In a statement dated June 16, 2005, Dr. Lawrence

stated that he was notified at 6:35 pm that the patient had

arrived in the ED.

During his deposition, however, Dr.

Lawrence contended the notification was after 7 p.m. After

being notified of the patient’s arrival, Dr. Lawrence

advised Chris Genovese (“Genovese”), the nurse who informed

him of the presence of the patient, to contact a mid-wife

from the Obstetrics Department and to place the patient’s

chart on the board to be seen by the next available

physician. According to Dr. Lawrence, Genovese stated that

the patient did not need to be seen immediately.

Dr.

Lawrence also asserts that there was no requirement that a

patient be seen by a particular ED physician.

The patient remained in the ED during the

remainder of Dr. Lawrence’s shift. The patient’s emotional

state apparently degraded during the time she was in the

emergency room, resulting in her call to the police

alleging that she had been assaulted in the ED.

In

response, a police officer was dispatched to the Nyack

Hospital ED.

At the time of the police officer’s arrival in

the ED, Dr. Lawrence was the ED physician on duty with the

most seniority. According to Dr. Lawrence, he was busy

caring for patients when the officer arrived in the ED, and

Dr. Khilnani was physically closer to the officer.

Dr.

Lawrence testified that he eventually approached the

officer, who had not asked for assistance, and inquired

into the purpose of his presence.

In response, Dr.

Lawrence received what he characterized as a “vague” answer

that did not identify the patient as the reason for the
police presence. Lawrence Af f . ¶ 5. However, the officer

did state that he had received a call to come to the ED and

asked Dr. Lawrence to speak with “someone in charge.”

Beane Decl. Ex. U at 108:15-18. Dr. Lawrence referred the

officer to Genovese and told her to let him know if he or

the attending physician could do anything to help.

Dr.

Lawrence did not see the patient during the remainder of

his shift.

Although the patient was seen by a mid-wife from

the Obstetrics Department, as directed by Plaintiff, as

well as a physician’s assistant, no ED physician interacted

with the patient until the early morning hours of May 27,

2005.

On May 27, 2005, Dr. Degioanni learned of the

previous evening’s incident in the ED via a phone call from

Freed.

Dr. Mehlman was first informed of the May 26

Incident by Freed as well. On May 27, 2005, Freed removed

the Dr. Mehlman from his clinical duties to confront him

about the incident. This interruption of clinical duties

was a unique event.

During the conversation, Freed

specifically identified Dr. Lawrence as someone involved in

the May 26 Incident. Dr. Mehlman informed Freed that he

had not been present in the ED during the previous evening,

that he did not know why Plaintiff had not seen the patient

in question, but did note that, although it was important

for the patient to be seen for humanistic and other

reasons, the patient may not have presented a medical

emergency and Dr. Lawrence may have been busy with more

critical patients.

Dr. Mehlman admitted that, after being informed

of the May 26 Incident, he must have spoken with Jessica

O’Brien (“O’Brien”) at some point about her report of the

incident, but could not recall any part of that

conversation.

Dr. Mehlman could not recollect speaking

with the midwife on the case or with the obstetrician on

call that night, Dr. Nicholas Klein, who supervised the

midwife attending to the patient.

Following his discussion with Freed, Dr. Mehlman

sent an e-mail to Dr. Lawrence on May 27, 2005, seeking

information concerning the events of the previous evening

and stating though there had not been a medical emergency

there

was

a

“humanistic,

social,

litigious

and

administrative emergency.” Sussman Aff. Ex. 1. On May 28,

2005, Dr. Mehlman again e-mailed Dr. Lawrence concerning

the events of the evening of May 26, 2005, to convey his

concern that Dr. Lawrence did not understand the severity

of the situation. Dr. Lawrence considered Dr. Mehlman’ s

May 27, 2005 e-mail to constitute criticism of his actions.

The Complaint did not allege that Dr. Mehlman blamed Dr.

Lawrence for any prior problems in prior cases.

According to Dr. Lawrence, he responded to both

of Dr. Mehlman’s e-mails in a May 29, 2005 e-mail in which

he referred to recommendations he had made for managing the

ED and suggested that Dr. Mehlman contact Genovese or Dr.

Khilnani. Whether or not this e-mail was responsive to Dr.

Mehlman’s e-mails is an issue of fact.

However, it is

undisputed that Dr. Lawrence never spoke with Dr. Mehlman

about the May 26 Incident.

Dr. Lawrence forwarded the e-mails to other

individuals, thereby disclosing their contents, and

discussed the May 26 Incident and e-mails from Dr. Mehlman

with other members of the group in addition to NEP and

Nyack Hospital personnel.

Dr. Lawrence also posted a document in the ED

which presented two questions to the staff of the ED

concerning the May 26 Incident:

RE:
GROUP

CUSTOM AND PRACTICE IN NYACKS PRINCIPALS

FACTS :
On May 26, 2005, at around 18:35PM,
Assistant Nurse Manager, Chris Genovese RN,
informed me of a patient, M.P., that may have
miscarried.
I responded that I could not see
this patient because I was currently managing
five (5) active cases. I asked and was told that
the patient was stable. I then told her to put
the patient in the Gyn room, call the OB midwife,
and put the patient up “next” to be seen, by the
“next” available provider.

The OB midwife saw the patient promptly.
PA
Jessica O’Brien, a MLP, saw the patient when she
came on shift. Dr. Khilnani was the 7P-7A doctor
and Nathaniel Silverberg MD, was going off as the
7A-7P doctor. I was on the 2P-12MN shift.

P.A. Jessica O’Brien did not endorse the case to
me.
I was never asked to see the patient.
Assistant Nurse Manager Chris Genovese never
asked me to get involved in any issues involving
the case.

QUESTION :
facts.

On the basis of these undisputed

1) Under current and existing custom and
practice patterns, was Dr. Lawrence physician of
record and the responsible physician for this
patient on the facts stated? Please sign in the

space below and answer ‘Yes’ or ‘No’ beside your
signature.

2) Are you aware of any rules or regulations in
existence at the time that would require Dr.
Lawrence to be the responsible physician, or the
physician of record, in this case, given the same
set of facts? Please sign in the space below and
answer “yes” or “no” beside your signature.

Lawrence Aff. Ex. 1. Eleven individuals, including eight

doctors, signed “No” beneath each question.

No doctor

signed ‘Yes’.

All the emergency room doctors except Dr.

Mehlman signed “No”.

On June 8, 2005, Dr. Lawrence wrote to the Chief

of the Medical Staff, Dr. Howard Feldfogel

(“Dr.

Feldfogel”) accusing Dr. Mehlman of orchestrating the facts

in a manner negative to him and harboring racial animosity

towards him. Dr. Lawrence also requested the convening of

an emergency peer review of the relevant patient.

According to Dr. Lawrence, the Director and Assistant

Director of Peer Review, Dr. Clement Osei (“Dr. Osei”) and

Dr. Arthur Kozin (“Dr. Kozin”), respectively, and Dr.

Lawrence appeared, as scheduled, for peer review. Freed

then arrived and stated that peer review was cancelled,

that the problem was solved, and there was no need for peer

review. At no time did Dr. Degioanni request peer review

of the May 26 Incident.

During his employment with NEP, Dr. Lawrence was

aware that Nyack Hospital officials had direct say in the

manner in which he performed his job, and if he did

something that displeased the hospital management, such

displeasure would be communicated to him either directly or

through the ED Director. Such situations arose with other

NEP physicians, not only Dr. Lawrence. In those instances,

Dr. Mehlman would issue, after prior review, a letter

concerning deficiencies in the employee’s conduct to be

included in the employee’s file. Dr. Degioanni had also,

on occasion, issued letters to other ED staff physicians

which were not enforced, such as a letter of termination.

Following the May 26 Incident, Freed directed Dr.

Mehlman to issue a written reprimand to Plaintiff.

Dr.

Mehlman issued a letter of reprimand to Plaintiff dated

June 9, 2005 (the “June 9 Letter”).

According to Dr.

Mehlman, it was “unfathomable” that the senior doctor in

the department would not become involved when a situation

had deteriorated to the point of police involvement but

would instead take the police officer to a nurse manager.

Beane Decl. Ex. E. Dr. Degioanni agreed with the reprimand

because of Dr. Lawrence’s refusal to admit that he had any

amount of responsibility whatsoever for the May 26

Incident.

Dr. Mehlman did not reprimand any of the other

physicians on the same shift as Dr. Lawrence.

The June 9 Letter had no impact on Plaintiff’s

compensation, benefits, privileges or responsibilities as a

staff physician in the Nyack Hospital ED although,

according to Dr. Lawrence, he continued to receive fewer

shifts thereafter.

Dr. Lawrence testified that his objection to the

June 9 Letter is not that it was issued only to him, rather

than to both him and Dr. Khilnani, but that he was

criticized and assigned any responsibility for a situation

in which he was not involved. Dr. Lawrence testified that

he would have the same objection to the June 9 Letter if it

had also been issued to the other doctors on duty the

evening of May 26, 2005.

The June 9 Letter was subsequently rescinded by

Dr.

Pellicone following the receipt of additional

information from other staff members at the ED, and no such

letter is now contained in the files of Nyack Hospital.

On July 6, 2005, Dr. Degioanni wrote, in a letter

to Dr. Lawrence regarding the May 26 Incident (the “July 6

Letter”): “As an ED doctor, you must be involved in patient

issues as soon as possible and proactively.

As an ED

doctor, it is your responsibility to be aware of the

medical, administrative and humanistic needs of the

patients at all times.” Beane Decl. Exh. F. The letter

went on to state, “I need to know that on a going forward

basis you are wiling and able to abide by Dr. Mehlman’s

instructions, and that you are willing and able to follow

standard of care procedures expected of an ED doctor as

discussed in this letter.” Id. The letter also requested

that Dr. Lawrence agree to the terms of the letter by

signing it, which Dr. Lawrence refused to do.

Dr. Degioanni issued the July 6 Letter because he

felt Dr. Lawrence was unwilling to be responsive to the

concerns of NEP and Nyack Hospital and took neither

criticism nor input well.

Dr. Degioanni did not send a

similar letter to any other doctor present in the ED during

the evening of May 26, 2005.

Following communications by Dr. Lawrence with

Freed and Dr. Pellicone, the July 6, 2005 letter written by

Dr. Degioanni to Dr. Lawrence was never enforced or

otherwise acted upon.

NEP did not pursue requiring Dr.

Lawrence to sign the letter and did not discipline Dr.

Lawrence in any manner for his failure to sign except,

according to Dr. Lawrence, to continue the reduction in his

shifts.

On July 25, 2005, Dr. Khilnani wrote in a letter

to Dr. Mehlman, “I don’t feel that Dr. Lawrence should be

held accountable for any deleterious actions that may have

occurred from the treatment and disposition of the

infamous, landmark gyn-pa case. I am not shocked that you

believed that Dr. Lawrence was responsible for the case, as

you were not present that night, you were not feeling the

pulse of the emergency room and the severity of the cases

that Dr. Lawrence and myself were handling, and perhaps you

did not have complete information at your disposal when you

formed your opinion.” Lawrence Aff. Ex. 6.

Prior to filing the Complaint, Dr. Lawrence

timely filed a complaint with the United States Equal
Employment Opportunity Commission (“EEOC”) . The Defendants

denied the claims set forth in the EEOC complaint and the

complaint was dismissed via a Dismissal and Notice of Right

to Sue letter issued by the EEOC on or about February 24,

2006.

11. DISCUSSION

A.

The Applicable Standards

1.

Summary Judgment

Summary judgment is granted only where there

exists no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d

329, 338 (2d Cir. 2004). The courts do not try issues of

fact on a motion for summary judgment, but, rather,

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

52 (1986).

“The party seeking summary judgment bears the

burden of establishing that no genuine issue of material

fact exists and that the undisputed facts establish [its]

right to judgment as a matter of law.” Rodriguez v. City

of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In

determining whether a genuine issue of material fact

exists, a court must resolve all ambiguities and draw all

reasonable inferences against the moving party. – See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18

(2d Cir. 2002). However, “the non-moving party may not

rely simply on conclusory allegations or speculation to

avoid summary judgment, but instead must offer evidence to

show that its version of the events is not wholly

fanciful.” Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.

1999) (internal quotes omitted); Fletcher v. Atex, Inc., 68

F.3d 1451, 1456 (2d Cir. 1995) (“Finally, mere conclusory

allegations or denials in legal memoranda or oral argument

are not evidence and cannot create a genuine issue of fact

where none would otherwise exist.” (internal quotes and

citation omitted)). Summary judgment is appropriate where

the moving party has shown that “little or no evidence may

be found in support of the nonmoving party’s case. When no

rational jury could find in favor of the nonmoving party

because the evidence to support its case is so slight,

there is no genuine issue of material fact and a grant of

summary judgment is proper.” Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.

1994) (citations omitted).

Where a claim involves a subjective component,

such as racially discriminatory intent, “there must be

solid circumstantial evidence to prove plaintiff’s case” in

order to establish a material issue of fact. Verri v.

Nanna, 972 F. Supp. 773, 783 (S.D.N.Y. 1997).
–

2 .

Title VII Claims

“Title VII’ s core substantive anti-discrimination
provision makes it an unlawful employment practice . . . to
discriminate against any individual with respect to the

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s race, color,
. .
religion, sex or national origin .
. ” Kessler v.
Westchester County Dep’t of Social Servs., 461 F.3d 199,

206 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-2(a)). The

Supreme Court has outlined a three step, burden-shifting

analysis for race discrimination claims brought under Title

VII.

The burden initially rests upon the plaintiff to

establish a prima facie case of discrimination. McDonnell

Douglas Corp. v. Greene, 411 U.S. 792, 802-05 (1973); – see

also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08

(1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 252-53 (1981). Establishing a prima facie case of

discrimination requires the plaintiff demonstrate, by a

preponderance of admissible evidence, that (1) he is a

member of a protected class; (2) he satisfactorily

performed his job duties; (3) he suffered an adverse

employment action; and (4) the adverse employment action

occurred under circumstances giving rise to an inference of

discriminatory intent. – See Terry v. Ashcroft, 336 F.3d

128, 138 (2d Cir. 2003); see also Zahorik v. Cornell Univ.,

729 F.2d 85, 92 (2d Cir. 1984).

Where a plaintiff is

unsuccessful

in

satisfying

these

criteria

by

a

preponderance of the admissible evidence, summary judgment

is warranted and the case is dismissed.

If a plaintiff successfully establishes a prima

facie case of discrimination, the burden of production

shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the challenged employment

decision. See St. Mary’s Honor Ctr., 509 U.S. 506-07. If

the employer articulates a legitimate reason for its

employment actions and decisions, the presumption of

discrimination triggered by the prima facie case drops from

the analysis.

The focus then turns to the plaintiff’s

ultimate burden of persuasion to demonstrate by a

preponderance of the evidence that the challenged

employment decision was the result of intentional

discrimination. – –
See id. at 509-11. Thus, the plaintiff

must show that his race is a motivating factor in the

employer’s decision-making process and had a determinative

influence on the outcome.

Luciano v. Olsten Corp., 110

F.3d 210, 219 (2d Cir. 1997). It is at this point that the

plaintiff may seek to establish that the defendant’s stated

justification for the adverse employment action is, in

fact, a pretext for discrimination.

Id. at 215.

The

plaintiff may not establish the existence of an issue of

material fact concerning the pretextual nature of the

justification “by offering purely conclusory allegations of
discrimination, absent any concrete particulars . . . . ( I

Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

In considering claims brought pursuant to 42

U.S.C. § 1981, the same analytical framework used in a

Title VII discrimination claim is applied.

Anderson v.

Hertz Corp., 507 F. Supp. 2d 320, 326-27 (S.D.N.Y. 2007).

Similarly, the law is well settled that “claims brought

under the New York State’s Human Rights Law [New York State

Executive Law § 2961 are analytically identical to claims

brought under Title VII.” Torres v. Pisano, 116 F.3d 625,

629 n.1 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1997);

Anderson, 507 F. Supp. 2d at 327.

B. Plaintiff Has Not Established a Prima Facie Case
of Discrimination

1.

Plaintiff Cannot Establish the Existence of
an Adverse Employment Action

As the Second Circuit has noted, “not every

unpleasant matter short of discharge or demotion creates a

cause of action” for discrimination. Richardson v. N.Y.

State Dep’t of Corr. Servs., 180 F.3d 426, 446 (2d Cir.

1999), abrogated on other grounds by Kessler, 461 F.3d 199.

Rather, an “adverse employment action” must amount to

a materially adverse change in the terms and
To be “materially
conditions of employment.

adverse,” a change in working conditions must be
more disruptive than a mere inconvenience or an
alteration of job responsibilities.
Such a
change might be indicated by a termination of
employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a
material
loss
of
benefits,
significantly
diminished material responsibilities, or other
indices unique to the particular situation.

Savarese v. William Penn Life Ins. Co. of N.Y., 418 F.

Supp. 2d 158, 161 (E.D.N.Y. 2006) (quoting Weeks v. N.Y.

State (Div. of Parole), 273 F.3d 76, 85 (2d Cir. 2001),

abrogated on other grounds by Nat’l R.R. Corp. v. Morgan,

536 U.S. 101 (2002)); see also Mormal v. Costco Wholesale

Corp., 364 F.3d 54, 57 (2d Cir. 2004) (“A tangible

employment action, as defined by the Supreme Court,

‘constitutes a significant change in employment status,

such as hiring, firing, failure to promote, reassignment

with significantly different responsibilities, or a

decision causing a significant change in benefits.'”
(citation omitted) ) .
adverse for purposes
materially

An employment action is not

of a Title VII

discrimination claim simply because a plaintiff is unhappy

about it or believes it is unfair or unwarranted. Garber

v. New York City Police Dep’t, No. 95 Civ. 2516 (JFK), 1997

WL 525396, at *5 (S.D.N.Y. Aug. 22, 1997) (holding

plaintiff’s purely subjective feelings about an employment

transfer did not rise to level of Constitutional

violation), aff’d, 159 F.3d 1346 (2d Cir. 1998).

Plaintiff’s

allegations concerning materially

adverse changes in the terms and conditions of his

employment stem from the June 9 Letter to Dr. Lawrence

reprimanding him for his actions during the evening of May

26, 2005. According to Dr. Lawrence, the memo resulted in

the ED atmosphere becoming “poisoned against him” and

“justified the shorting” of the number of shifts assigned

to him. Plaintiff’s Response ¶ 109.

However, these allegations, in light of the

evidence offered by Dr. Lawrence, are insufficient to

establish an adverse employment action under Title VII.

With regard to Dr. Lawrence’s allegations that the ED

atmosphere was “poisoned” against him, it was he, not

Defendants, who publicized his

communications with

Defendants concerning the May 26 Incident and the June 9

Letter to a number of physicians and other ED medical staff

while attempting to garner support for his claim that he

did nothing wrong. Therefore, Dr. Lawrence’s own actions

served as the proximate cause of any effect the June 9

Letter might have on the atmosphere of the ED.

In

contrast, Plaintiff offers no evidence that Defendants

engaged in any activity to publicize the May 26 Incident

among the ED employees, and Defendants cannot be held

responsible for any alleged “poisoning” of the ED

atmosphere.

Plaintiff’s allegation concerning “shorting” of

his shifts also fails to establish the existence of an

adverse employment action. Dr. Lawrence has acknowledged

that the “shorting of his shifts” preexisted the May 26

Incident and the June 9 Letter. Moreover, Plaintiff has

not produced any evidence that this practice became more

severe following either the May 26 Incident or the June 9

Letter. Dr. Lawrence also admits that he was working in

the emergency departments of two other hospitals during

this period and requested fewer shifts at the Nyack

Hospital ED to enable him to continue to do so.

Dr. Lawrence was not demoted, discharged,

disciplined in any way, transferred, or assigned different

or lesser duties as a result of the June 9 Letter. His job

title was not altered in any way and no other material

changes to the terms and conditions of his employment were

imposed as a result of or in conjunction with the June 9

Letter.

Because Plaintiff cannot, as a matter of law,

establish the existence of an adverse employment action,

his claim cannot withstand Defendants’ motion for summary
judgment .

2. Plaintiff Cannot Establish the Existence of
Discriminatory Intent

Plaintiff also asserts that the actions taken by

Dr. Mehlman following the May 26 Incident were motivated by

discriminatory intent. A plaintiff may establish that an

adverse employment action resulted from discrimination by

demonstrating that the employer treated him less favorably

than a similarly situated employee outside his protected

group. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d

Cir. 2003). However, the “similarly situated” individual

must be “similarly situated in all material respects.”

Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d

Cir. 1999) (quoting Shumway v. United Parcel Serv., Inc.,

118 F.3d 60, 64 (2d Cir. 1997)).

This requires

demonstrating that the plaintiff’s fellow employee was

“subject to the same standards governing performance

evaluation and discipline, and must have engaged in conduct

similar to the plaintiff’s.” – Id. at 96 (quoting Mazzella

v. RCA Global Commc’ns, Inc., 642 F. Supp. 1531, 1547

(S.D.N.Y. 1986), aff’d 814 F.2d 653 (2d Cir. 1987)).

Plaintiff points to the absence of any action by

Nyack Hospital against Dr. Khilnani following the May 26

Incident as evidence of disparate treatment. Dr. Khilnani,

however, cannot said to be a “similarly situated” employee.

While Dr. Khilnani was also on duty the night of May 26,

2005, he was not the physician who spoke with the police

officer in the ED. In addition, while Dr. Khilnani was a

recent medical school graduate, Plaintiff was the doctor on

duty with the most seniority and the former Interim

Director of the ED.

Further, Defendants had not been

directed by the CEO of Nyack Hospital to issue a reprimand

to Dr. Khilnani. Because Plaintiff has not proffered any

additional evidence that he was treated less favorably than

similarly situated individuals, he cannot rely on

allegations of “disparate treatment” to demonstrate

discriminatory intent on the part of Defendants.

In further support of his

assertion

of

discriminatory intent, Dr. Lawrence cites to comments

allegedly made by Dr. Mehlman, described supra, that he

argues evidences racial bias. In considering the nature of

allegedly racially discriminatory conduct, courts have
warned that “[iln Title VII actions . . . it is important

to distinguish between harassment and discriminatory

harassment in order to ‘ensure that Title VII does not

become a general civility code. ‘ ” Manessis v. N.Y.C. Dep’t

of Transp., No. 02 Civ. 359 (SAS), 2003 WL 289969, at *7

(S.D.N.Y. Feb. 10, 2003) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)); Petrosino v. Bell Atl.,
–

385 F.3d 210, 223 (2d Cir. 2004) (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

Thus, offhand comments or isolated incidents of offensive

conduct, unless extremely serious, will not support a claim

of discriminatory harassment, even if the plaintiff can

submit admissible evidence that they in fact occurred.

Petrosino, 385 F.3d at 223; Holtz v. Rockefeller & Co., 258
F.3d 62, 75 (2d Cir. 2001) .

Even viewing Dr. Mehlman’s comments in a light

most favorable to Plaintiff, no trier of fact could

conclude that a reasonable person would find the comments,

unconnected by time or date to the alleged adverse

employment action, sufficient to support a claim of racial

discrimination.

Indeed, Dr. Lawrence himself never

complained to Dr. Mehlman about his (Dr. Mehlman’s)

statements prior to the initiation of this lawsuit or

requested that Dr. Mehlman stop engaging in the conduct

which Plaintiff now claims was offensive and objectionable.

As to the allegations that Dr. Mehlman’s

scheduling decisions evidences his racial animus, Plaintiff

admits that the same or similar scheduling practices were

continued by a new Director hired in November 2005 by NEP.

Despite this, Plaintiff does not allege any racially

discriminatory motivation on the part of the new Director.

Plaintiff’s allegations of racial discrimination

are further undercut by the fact that NEP appointed Dr.

Lawrence as the Interim Director of the ED in 2003 and

considered Dr. Lawrence for the position of permanent

Director of the ED. Dr. Lawrence was also presented as a

candidate to the Nyack Hospital committee charged with

choosing the new Director.

In addition, Dr. Mehlman

himself recruited an African-American physician for the

position of Assistant Director of the ED, and two African-

American physicians, Dr. Deborah White and Dr. Augustine

Alifo, were offered employment with NEP as the future

Director of the ED during Dr. Mehlman’s tenure as Director.

Plaintiff’ s perceived slights by Dr. Mehlman and

his present objections to Dr. Mehlman’s conduct and

comments do not establish discriminatory intent on the part

of Defendants. Such perceived slights, or even personality

conflicts, are insufficient to support an allegation of

discriminatory intent.

IV. CONCLUSION

Upon the facts and conclusions stated above, the

motion for summary judgment is granted and the Complaint is

dismissed. Enter judgment on notice.

It is so ordered.

New York, NY
September y3/ , 2009

ROBERT W. SWEET
U.S.D.J.