Underwood v. Roswell Park Cancer Inst. — Jan. 2017 (Summary)

RACE DISCRIMINATION – RETALIATION

Underwood v. Roswell Park Cancer Inst.
Case No. 15-CV-684-FPG (W.D.N.Y. Jan. 13, 2017)

The United States District Court for the Western District of New York granted in part and denied in part motions to dismiss filed by a defendant hospital and hospitalist against claims of racial discrimination, whistleblower retaliation, hostile work environment, and breach of contract brought by a former staff physician.

Over the course of several years, the physician was subjected to various adverse employment events.  As early as 2008, the physician noticed that his salary, calculated by an objective determination of multiple clinical performance factors, was lower than that of his similarly-situated, white colleagues despite demonstrated successes in writing and receiving grants.  In addition to this, the physician’s outpatient office hours were reduced, he was restricted from accessing information on a hospital database that was necessary to conduct clinical research, was subjected to a peer review without notice, was removed from a leadership position, and refused to renew his staff privileges.  Following this series of events, the physician agreed to attend an advanced training course in order to regain his staff privileges.  After completing the course with positive reviews, the physician filed a charge of racial discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The physician also expressed concern about the hospital’s urology department practices and requested an external review to assess potential patient care concerns.  These requests were ignored.  When the physician applied for re-credentialing, the hospital refused to approve his privileges.  The physician took an eight-month leave of absence at the hospital’s request and, when he returned to work, he was put under supervision.  The physician sued the hospital and the hospitalist, alleging discrete discrimination, hostile work environment, breach of contract, and retaliation claims.

The court held that the physician’s claims of discrete discrimination were subject to the 300-day statute of limitations.  Therefore, despite the fact that the alleged acts were ongoing and continuous over a period of several years, only those within the statutory period were actionable.  The physician’s claims of disparate treatment, though not included in his initial EEOC complaint, were not dismissed by the court because they were “reasonably related” to the claims set forth in the EEOC filing, regardless of whether or not the claims in that filing were exhausted.  Accordingly, the court denied the defendants’ motions to dismiss the claims that were “reasonably related” to the exhausted EEOC claims.

The court next denied the hospital’s motion to dismiss the charges of discrimination.  The hospital argued that most of the actions in the complaint related to the hospitalist rather than the hospital itself.  The court disagreed; the court found that the facts provided by the physician in his complaint demonstrated that the hospital “authorized or ratified the employment actions” taken against the physician by the hospitalist.  As such, the hospital’s motion to dismiss was denied.  Furthermore, the court held that the physician’s agreed-upon attendance at the advanced training course in return for staff privileges that were never renewed, as promised, demonstrated a likelihood of discriminatory conduct sufficient to justify denying the hospital’s motion to dismiss.  Looking at “all the circumstances” – including the physician’s comparatively low salary and derogatory remarks directed toward him – the court additionally determined this amounted to a sufficient amount of evidence to deny the hospital’s motion to dismiss with respect to the hostile work environment claim.

The court then dismissed the hospital’s motion to dismiss with respect to the state law retaliation claim.  The physician’s repeated concerns to hospital management regarding patient care and other questionable institutional practices, and the hospital’s subsequent severance of the physician’s privileges, indicated that the hospital’s conduct may have constituted retaliation in response to the physician’s whistleblowing.  Therefore, the court denied the hospital’s motion to dismiss.

The court dismissed the physician’s state law claim for breach of contract because the termination of staff privileges section of the agreement was not bound to abide by the hospital’s by-law policy.

The court also denied the hospitalist’s motion to dismiss the discrete discrimination allegations against him on the basis of qualified immunity as well as the retaliation claims.  The court found that the hospitalist failed to demonstrate, solely on the facts contained in the complaint, that he was entitled to such immunity.  Additionally, the court found that the coerced leave of absence, data access restrictions, and supervised privileges instituted by the hospitalist against the physician following the physician’s EEOC filing all raised sufficient evidence of potential retaliation.