Salamon v. Our Lady of Victory, et al

Filing 168

DECISION AND ORDER DENYING Defendants' 101 104 106 107 Motions for Summary Judgment; SCHEDULING a Status Conference for 5/11/2012 at 9:00 AM before William M. Skretny, Chief Judge. Signed by William M. Skretny, Chief Judge on 3/30/2012. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BARBARA E. SALAMON, M.D.
Plaintiff,
v.

DECISION AND ORDER
99-CV-048S

OUR LADY OF VICTORY HOSPITAL,
MICHAEL C. MOORE, M.D.,
FRANKLIN ZEPLOWITZ, M.D.,
JOHN F. REILLY, M.D.,
ALBERT J. DIAZ-ORDAZ, M.D., and
JOHN P. DAVANZO,
Defendants.

I. INTRODUCTION
Plaintiff Barbara E. Salamon, M.D., commenced this action on January 21, 1999
against Defendants Our Lady of Victory Hospital (“OLV” or “the Hospital”) and five medical
personnel associated therewith–Dr. Michael C. Moore, Dr. Franklin Zeplowitz, Dr. John F.
Reilly, Dr. Albert J. Diaz-Ordaz, and John P. Davanzo (collectively referred to herein as
“Defendants”). In her Amended Complaint (Docket No. 5), Plaintiff alleged, inter alia, that
defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the New York State Human Rights Law, N.Y. Exec. L. § 290 et. seq.
(“NYSHRL”),1 by subjecting her to sexual harassment, discrimination, and by conspiring
to negatively impact her future employment opportunities. She further alleged violations of

1

NYSHRL claim s are analytically identical to claim s brought under Title VII. Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 714–15 (2d Cir.1996) (citations om itted).

New York State common law by tortiously interfering with her business relations.
In a previous Decision and Order this Court (Elfvin, J.) granted summary judgment
in favor of the Defendants, dismissing Plaintiff’s Title VII and NYHRL claims on the ground
that she was not an employee of OLV, rejecting her Title VII claim under Sibley Memorial
Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir.1973), and declining to exercise supplemental
jurisdiction over the remaining state tortious interference claims. (Docket No. 127.) The
Court of Appeals for the Second Circuit vacated this Court's decision as to Plaintiff’s Title
VII and NYHRL claims, holding that genuine issues of material fact existed as to the
degree of control OLV exercised over Plaintiff for purposes of determining whether she was
an “employee” under Title VII. (Docket No. 163.)
Defendants' Motions for Summary Judgment (Docket Nos. 101, 104, 106, 107) are
again before this Court.2 For the following reasons, this Court finds that Defendants are not
entitled to summary judgment.
II. BACKGROUND
A.

Procedural History
Plaintiff, a female gastroenterologist, was a member of the medical staff at OLV with

privileges in gastroenterology. She commenced this action against OLV and the other
defendants on January 21, 1999, and filed an Amended Complaint on March 5, 1999.

2

In the interest of judicial econom y, Defendants Reilly, Diaz-Ortiz, and Moore have adopted the
affidavits and m em orandum of law subm itted by Defendants OLV, Zeplowitz, and Davanzo, in support of
their sum m ary judgm ent m otions. W hile Defendants’ four m otions have been docketed individually, this
Court will treat their subm issions as a collective m otion for sum m ary judgm ent.

2

(Docket Nos. 1, 5.)3 The Amended Complaint asserted eight causes of action, the first five
of which were brought under anti-trust law, and were dismissed by this Court (Elfvin, J.)
pursuant to Fed. R. Civ. P. 12(b)(6) by Order dated October 5, 1999. (Docket No. 20.) The
sixth and seventh causes of action alleged sexual harassment, and a discriminatory OLV
“peer review” process that resulted in a “reeducation” and mentoring requirement in
violation of Title VII and NYSHRL. The eighth cause of action asserted state law claims for
tortious interference with contract and prospective business relations.
Defendants moved for summary judgment on February 12, 2001. (Docket Nos. 38,
39, 41, 43.) This Court then granted Plaintiff’s motions under former Fed. R. Civ. P. 56(f),
allowing Plaintiff additional time to conduct discovery to oppose the Defendants’ motion.
Plaintiff’s opposition papers were filed on May 21, 2004, and Defendants submitted their
reply on July 21, 2004. The motion was orally argued and submitted on July 30, 2004.
On March 8, 2006, this Court (Elfvin, J.) issued a decision granting summary
judgment in the Defendants favor on Plaintiff’s Title VII and NYSHRL claims for lack of the
required employee-employer relationship, and declining to exercise supplemental
jurisdiction over her remaining state law claims.
In an amended decision, a panel of the Second Circuit vacated the entry of
summary judgment and remanded the case for further consideration of the Defendants’
motion. (Docket No. 162.) Specifically, the Second Circuit found that “viewing the
circumstances of this particular case in the light most favorable to the plaintiff, the non-

3

Plaintiff first filed a com plaint with the U.S. Equal em ploym ent Opportunity Com m ission
(“EEOC”) on Decem ber 29, 1998. The EEOC dism issed the com plaint, finding that she was not an
em ployee of OLV.

3

moving party, [Plaintiff] has demonstrated a genuine factual conflict regarding the degree
of control OLV exercised over her,” and instructed that, on remand, the district court was
to reweigh all of the thirteen factors set forth in Community for Creative Non-Violence v.
Reid, 490 U.S. 730 (1989) to determine whether Plaintiff was an employee of the Hospital
for purposes of Title VII. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 231 (2d Cir.
2008).
Defendants have now renewed their motion for summary judgment. Save for a
handful of supplemental filings, the parties rely in large part on their previously-filed papers.
B.

Factual Background
1.

The Parties

Plaintiff is a physician licensed to practice in the State of New York, board certified
in Internal Medicine and Gastroenterology ("GI"). In 1995,4 Plaintiff applied for and was
granted temporary staff privileges at OLV. At the time, Plaintiff was the only female
physician in the GI Division. Following a full asset merger of OLV and Mercy Hospital (with
Mercy Hospital to be the surviving corporation), Plaintiff's medical staff membership and
privileges at OLV automatically expired as of June 16, 2003, when OLV's Operating
Certificate expired. Thus, Plaintiff remained on staff continuously at OLV for a period of
nearly nine years. During that time, she was subject to OLV's Staff Rules and Regulations
and the requirements of various certifying agencies as well as applicable state and federal
laws. (Def. Stmt. of Facts, (Docket No. 103) ¶¶ 1-6.)
During the times relevant to this action, Michael Moore, M.D. (“Moore”) was the

4

Plaintiff asserts that she was granted associate staff privileges in 1994. (Pl. Aff., ¶ 6.) This Court
does not consider this to be m aterial as Plaintiff rem ained on staff at OLV for a period of nearly nine years.

4

Chief of OLV's Gastroenterology Division, and a member of the OLV Board of Directors,
the Professional Affairs/Credentialing Committee, the Quality Assurance/Utilization
Management Committee, the Human Resources Committee of the Board, and later
became president of Medical Staff at Mercy Hospital. Franklin Zeplowitz, M.D. (“Zeplowitz”)
was OLV's Chief of Staff, Vice President of Medical Affairs, Chairman of the Medical
Executive Committee and the Chief of OLV's Credentials, Quality Assurance and By-Laws
Committees. John Reilly (“Reilly”) was OLV's Chief of Medicine and a member of OLV's
Medical Executive Committee. Albert Diaz-Ordaz (“Diaz-Ordaz”) was a member of OLV's
Quality Assurance Committee, and John Davanzo (“Davanzo”) was OLV's President/Chief
Executive Officer. (Pl. Aff., (Docket No. 149) ¶¶ 8-10.)
2.

Plaintiff’s Relationship with OLV

Plaintiff received the privileges and was subject to the duties of all staff physicians
at OLV. (Def. Stmt. of Facts, ¶ 10.) Her clinical privileges extended to the use of the
hospital's facilities, including access to the endoscopy equipment in the GI lab, which was
vital to her practice. Plaintiff contends that she was wholly dependent on OLV's
instrumentalities to work. Plaintiff was required to use OLV’s nursing and support staff in
her treatment of patients at the Hospital. (Pl. Aff., ¶¶ 4, 6, 155, 175.)
Plaintiff was generally free to set her own hours and maintain her own patient load,
subject to the availability of the endoscopy equipment, which the Hospital controlled, and
to an on-call requirement discussed below. (Def. Stmt. of Facts, ¶¶ 16-17; Pl. Aff. ¶¶ 36,
148.) She determined which patients to see and treat, and whether or not to admit them
to OLV (or another hospital). Plaintiff was allowed to maintain staff privileges at other
hospitals, and she did so, although the majority of her practice was at OLV. (Def. Stmt. of
5

Facts, ¶¶ 17-18; Pl. Aff. ¶¶ 558-59.) OLV did not pay her a salary, wages, benefits, or any
other monetary compensation. She billed patients (or their insurers) directly for her
services, while OLV billed them separately for the corresponding use of its facilities.
Plaintiff carried her own professional liability insurance. (Def. Stmt. of Facts, ¶¶ 12, 19-22.)
Plaintiff, like all physicians at OLV, was subject

to the Hospital’s policies,

supervision and management, including Staff Rules and Regulations and Hospital by-laws.
(Def. Stmt. of Facts, ¶¶ 10-11.) Plaintiff was also obliged to participate in regular staff
meetings and spend a certain amount of time "on call" for OLV. During this required on-call
time, Plaintiff was required to treat OLV patient needs as they arose, whether or not they
were her patients. This duty extended to "follow up" treatment, obligating her to continue
treating a patient she had first seen while on call, even after her on-call time was over. (Pl.
Aff., ¶¶ 74-77.)
The most significant mechanism of supervision over Plaintiff, and the focal point of
the Second Circuit’s decision, was OLV’s Quality Assurance (“QA”) Program, in which
Plaintiff was required to participate as a condition of her privileges. Under the QA Program,
different hospital practitioners, on a rotating basis, would review procedures that had been
conducted during the quarter. Cases flagged as potentially problematic would be discussed
at mandatory GI Division meetings. OLV also had a peer review process for further
examining the practice of doctors whose cases had been flagged through the QA Program.
Def. Stmt. of Facts, ¶¶ 26-27; Pl. Aff., ¶¶ 38-53.)
Finally, OLV also reported to the National Practitioner's Data Bank ("NPDB"), a
database that contains adverse information about doctors that would be queried when a
doctor sought privileges at a hospital. According to Plaintiff, the QA Program included
6

detailed requirements as to when and how her work was to be performed, requirements
intended in some cases to maximize profits, not patient care. (Pl. Aff., ¶¶ 61, 64-65.)
3.

Claims of Harassment

From the beginning of her time at OLV in September, 1994, Plaintiff alleges that
Defendant Moore made a number of inappropriate and unwelcome comments to her. Over
time, those comments escalated in frequency and in nature, and became increasingly
sexual, despite Plaintiff's complaints about Moore's behavior. Plaintiff also felt that she was
subject to a hostile work environment based on Moore's ongoing sexual relationship with
a female nurse in the GI Division. Around this time, Moore began selecting Plaintiff's cases
for peer review at the GI Division's quarterly meetings. While Plaintiff's cases were selected
for review, inappropriate and inadequate treatment provided by the male physicians
(including Moore himself) in the GI Division was overlooked. (Pl. Aff., ¶¶ 80-88, 176-228,
229-276.)
After repeatedly rejecting Moore's advances, Plaintiff met with Albert Condino
("Condino"), OLV's former CEO,5 and Defendant Zeplowitz, in August, 1999, to advise
them of Moore's sexual harassment and the unfair treatment she was receiving during the
QA meetings. Although Condino and Zeplowitz assured Plaintiff that her claims would be
investigated, the Defendants did not conduct any investigation of Plaintiff's allegations of
sexual harassment against Moore. Moore denied Plaintiff's allegations, and Condino and
Zeplowitz concluded that Plaintiff's complaints were unfounded. (Pl. Aff., ¶¶ 229-246, 252.)

5

Defendant Davanzo succeeded Condino in this position.

7

4.

Claims of Discrimination and Retaliation

At a subsequent meeting with Condino and Zeplowitz, Plaintiff was informed that
OLV’s Department of Medicine would conduct a general review of procedures across the
GI Division. Instead, Condino and Zeplowitz initiated a review of Plaintiff's patient
procedures dating back one and-a-half years, including cases that had previously been
peer reviewed and were not identified as being problematic. Condino and Zeplowitz
assigned Defendant Moore and two other doctors to review the procedure reports for
Plaintiff's cases.

Plaintiff alleges that the reviewing physicians provided incorrect,

misleading, and/or false information in the internal reviews. Further, no other physician was
subject to the same peer review process, and Plaintiff's practice was not compared to that
of the male gastroenterologists at OLV. (Pl. Aff., ¶¶ 251-276.)
Plaintiff's work was then subjected to several additional levels of review, which
yielded conflicting results. For example, one physician, who was not a specialist in the peer
review process, provided an unfavorable report, while a second external review of the
same cases indicated that Plaintiff's practice met community and national standards of
care. Plaintiff was also subject to the following: a three-physician internal review; a review
by a five-physician ad hoc committee, including an interview with Plaintiff and submission
of written arguments by her; ratification of the ad hoc committee's review by an
eleven-physician Medical Executive Committee (“MEC”) following an appearance and
written submissions by Plaintiff; a hearing before a five-physician hearing panel, including
testimony and cross-examination by Plaintiff, on Plaintiff’s appeal from the MEC's
determination; and, at Plaintiff's request, further review by the OLV Board of Directors. (Pl.
Aff. ¶¶ 277-352.)
8

Following Plaintiff’s unsuccessful challenges to the peer review process, the
Defendants decided to impose a "reeducation" plan on Plaintiff, also over Plaintiff’s
objection.

Ultimately, however, no physician mentor could be found to accept the

responsibility to carry out the proposed program, and the reeducation requirement
ultimately became moot as OLV merged into Mercy Hospital in 2003, ending Plaintiff's
medical staff privileges at OLV. (Pl. Aff., ¶¶ 353-389.)
During this time period, Plaintiff's procedures and consultations at OLV diminished
in numbers, as did her referrals from other physicians. Although no report was ever made
to the NPDB, Plaintiff’s reputation of poor work quality had spread throughout the area and
caused severe injury to Plaintiff’s practice. (Pl. Aff., ¶¶ 559-561, 566, 578-579.)
III. DISCUSSION
A.

Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” A fact is “material” only if
it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A “genuine” dispute exists “if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Id. In determining whether
a genuine dispute regarding a material fact exists, the evidence and the inferences drawn
from the evidence “must be viewed in the light most favorable to the party opposing the
motion.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970) (internal quotations
and citation omitted).
“Only when reasonable minds could not differ as to the import of evidence is
9

summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation
omitted). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any
evidence in the record from which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted). The function of the
court is not “to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
B.

Title VII
Title VII states that “[i]t shall be an unlawful employment practice for an employer

. . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). It is well-settled that “Title VII and
NYHRL Title VII and the NYHRL cover ‘employees,’ not independent contractors.”
Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir. 2000).
As the Second Circuit noted in Salamon, a reviewing court must look to the
common law of agency in addressing whether a plaintiff is an employee or an independent
contractor. Salamon, 514 F.3d at 226–27 (citing cases) (applying common-law agency test
to Title VII claims); Fowler v. Scores Holding Co., Inc., 677 F.Supp.2d 673, 679 (same for
NYSHRL claims). The common-law agency test “depends on a fact specific analysis of
thirteen factors articulated by the Supreme Court in Community for Creative Non-violence
v. Reid, 490 U.S. 730 ... (1989).” Salamon, 514 F.3d at 226. The “Reid factors” are as
follows:
[1] the hiring party's right to control the manner and means by
10

which the product is accomplished[,] .... [2] the skill required;
[3] the source of the instrumentalities and tools; [4] the location
of the work; [5] the duration of the relationship between the
parties; [6] whether the hiring party has the right to assign
additional projects to the hired party; [7] the extent of the hired
party's discretion over when and how long to work; [8] the
method of payment; [9] the hired party's role in hiring and
paying assistants; [10] whether the work is part of the regular
business of the hiring party; [11] whether the hiring party is in
business; [12] the provision of employee benefits; [13] and the
tax treatment of the hired party.
Id. (quoting Reid, 490 U.S. at 751–52).
In applying the Reid factors, "a court must disregard those factors that, in light of the
facts of a particular case, are (1) irrelevant[,] or (2) of ‘indeterminate' weight." Eisenberg
v. Advance Relocation & Storage, Inc., 237 F.3d 111, 114 (2d Cir. 2000). Although no
single Reid factor is dispositive, the Second Circuit has found that in the context of
anti-discrimination cases, the " ‘greatest emphasis' should be placed on the first factor-that
is, on the extent to which the hiring party controls the ‘manner and means' by which the
worker completes his or her assigned tasks." Eisenberg, 237 F.3d at 114 (quoting Frankel
v. Bally, Inc., 987 F.2d 86, 90 (2d Cir. 1993); Salamon, 514 F.3d at 227-28 ("What is at
issue is not merely the right to dictate the outcome of the work, but the right to control the
‘manner and means' by which the hiree accomplishes that outcome."). "The issue of
whether a hired worker is an independent contractor or an employee is ‘typically a question
for the factfinder, unless the evidence in the record relevant to this question is undisputed,
in which case a court may resolve the issue as a matter of law.'" Nazinitsky v. Fairmont Ins.
Brokers, Ltd., 06-CV-5555, 2010 WL 836766, at *8 (E.D.N.Y. Mar. 8, 2010) (quoting
Murphy v. Guilford Mills, Inc., 02-CV-10105, 2005 WL 957333, at *5 (S.D.N.Y. Apr. 22,
2005).
11

C.

Application of the Reid Factors
Defendants, in their motion for summary judgment, argue that, upon reweighing all

of the Reid factors, Plaintiff is an independent contractor for purposes of Title VII
protection. (Def. Supp. Mem. (Docket No. 139) at 6.)
The record indicates that there are disputes of fact between the parties on at least
three of the Reid factors. In particular, the Plaintiff claims that the Defendants exerted
sufficient control over Plaintiff’s manner and means of work; the level of skill required to
perform her job does not preclude employee status; she was wholly dependent on OLV’s
instrumentalities and tools when she a member of the medical staff; that her work was
essential to OLV’s business, and that the economic factors, i.e., tax treatment, benefits,
and salary, tip in favor of finding that Plaintiff was an employee of OLV. (Pl. Mem. 5/21/04
(Docket No. 108) at 10-19.)6 This Court will therefore analyze the facts presented by
Defendants to support their argument that Plaintiff was an independent contractor, and
contrast those facts with the ones advanced by Plaintiff to show the contrary.
1.

Control Over Plaintiff’s Work
a.

The Peer Review Process

The Defendants claim that Plaintiff exercised discretionary control over the manner
and means by which she provided medical services. (Def. Supp. Mem. 15-29.) The Second
Circuit, however, found an issue of fact as to control based on Plaintiff’s claim that the peer
review and QA process went beyond simply monitoring patient outcomes, and directed
6

Plaintiff does not argue in her m ost recent subm ission that the Reid factors weigh in favor of
em ployee status. Rather, she urges this Court to find that the em ployee/independent contractor finding should
be m ade by a jury. (Pl. Mem . 8/28/09 at 12.) Accordingly, this Court has reviewed Plaintiff’s Reid argum ents
contained in her Mem orandum in Opposition to Defendants’ Motion for Sum m ary Judgm ent filed on May 21,
2004. (Docket No. 108.)

12

specific medical care and treatment by her. Salamon, 514 F.3d at 229.
The Second Circuit acknowledged that at least four other Circuits have explicitly
rejected physicians’ reliance on similar arguments, finding that hospital peer review
programs do not constitute exercises of control over the manner and means of physicians
practice as they involve policies that simply reflect professional and governmental
regulatory stanards. Id. at 231 (citing Shah v. Deaconess Hosp., 355 F.3d 496, 500 (6th
Cir. 2004); Clecek v. Inova Health Sys. Servs., 115 F.3d 256, 262 (4th Cir. 1997);
Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 493 (7th Cir. 1996); Diggs v. Harris
Hosp.-Methodist, Inc., 847 F.2d 270, 273 (5th Cir. 1988). The Second Circuit distinguished
those cases on the ground that OLV’s peer review and QA programs went beyond merely
reflecting professional governmental regulatory standards, but rather dictated “detailed
treatment requirements.” Id. at 230.
Specifically, Plaintiff asserts that OLV did not simply review the quality of her patient
treatment outcomes, but mandated performance of certain procedures, the timing of
others, directing which medications she should prescribe, and recommending changes to
her practice based on their financial impact to the department. For example, Plaintiff states
that she was “repeatedly instructed to discharge [her] patients before their treatment could
be completed and to perform endoscopic procedures on an outpatient basis to
economically benefit the Hospital.” (Pl. Aff., ¶¶ 72-13.) Further, she attests that she was
required to attend GI Division meetings “where [she] was instructed on how to perform
services consistent with OLV’s particular manner,” and that she was required to follow a
GI Division policy mandating the performance of unindicated or “prophylactic” procedures.
(Pl. Aff., ¶¶ 74, 78-80.)
13

The Hospital’s review of Plaintiff’s practice resulted in a detailed reeducation and
mentoring program requiring Plaintiff to be re-trained to perform services at OLV in a
particular manner. (Pl. Aff., ¶ 405.) That reeducation requirement controlled specific details
of her work at the Hospital, which included: “(a) indications and treatment for EGDs
[esophagogastroduodenoscopies]; (b) appropriate treatment of AV [arteriovenous]
malformations and removal of polyps found on colonoscopy; (c) use of pH monitoring with
esophageal manometry[;] and (d) length of colonoscopy procedures and level of sedation
during colonoscopy.” (Pl. Aff., ¶¶ 346-347, 406.) Citing to terms from that reeducation
requirement, the Second Circuit concluded that, “‘Appropriate treatment,’ ‘removal,’
‘monitoring,’ ‘length of ... procedures,’ and ‘level of sedation’ are exactly the kinds of
‘manner and means’ of practice over which employers exert control. That this reeducation
ultimately did not occur is beside the point.” Salamon, 514 F.3d at 230.
Thus, Defendants urge this Court to find that, upon closer examination, the statutes
and regulations require all hospitals, including OLV, to exert some control over the manner
and means by which physicians render medical care and treatment by requiring them to
establish and maintain standards of care. (Def. Supp. Mem. at 17-20.) Therefore, they
argue, to the extent that the Hospital’’s QA and peer review process became involved in
Plaintiff’s practice, such involvement was a function of the mandatory regulatory process,
and not evidence that OLV employed Plaintiff because it controlled her practice. The
Second Circuit, however, has already rejected this assertion, finding that even the
regulations that “come closest to governing aspects of everyday medical practice . . . do
not approach the level of performance detail dictated by OLV.” See Salamon, 514 F.3d at
231 n.13 (citing 10 N.Y.C.R.R. § 405.16(c)(2)). Accordingly, this Court disagrees with
14

Defendants’ position that the reeducation and mentoring requirement’s discussion of
appropriate treatment, removal, monitoring, length of procedures, and level of sedation is
the necessary consequence of the statutory and regulatory requirements that OLV’s QA
process ensures that physicians meet the applicable standard of care.
b.

Freedom of Choice and Non-Exclusivity

It is undisputed that Plaintiff had privileges, and treated patients at Buffalo General
Hospital, Mercy Hospital, and had privileges at St. Joseph’s Hospital. Defendant asserts
that because Plaintiff’s arrangement was non-exclusive and that she had the freedom of
choice to take any or all of her patients to another competing hospital, this factor outweighs
the fact the there is an issue of fact as to whether OLV controlled the manner and means
of Plaintiff’s practice. (Def. Supp. Mem. 25-29.)
Although the relevant case law supports the Defendants’ position, see Shah, 355
F.3d at 500 (independent contractor not required to accept patients referred to him by
hospital); Alexander, 101 F.3d at 493 (plaintiff not required to admit patients to the
defendant-hospital), Plaintiff disputes the nature of her relationship with OLV as being nonexclusive.
First, Plaintiff contends that she had “almost no” patient contacts at Buffalo General
Hospital, “very limited” patient contacts at Mercy Hospital, and never practiced out of St.
Joseph’s Hospital. (Pl. Aff., ¶¶ 7-8 n. 3.) Second, many of Plaintiff’s new patients were
referred to her directly from OLV and she was not permitted to refuse these patients. Third,
Plaintiff was required by the Hospital to treat un-referred patients who had been admitted
by OLV. (Pl. Aff., ¶ 35.) Finally, Plaintiff was required by OLV to treat many of her patients
at OLV using its facilities, equipment, and staff, rather than at other hospitals at which she
15

had privileges. (Pl. Ex. 6 at 29-31.) Based on these assertions, Plaintiff has raised a
material issue of fact with regard to whether OLV controlled the assignment of patients and
exclusivity, warranting submission of the issue to the jury.
In sum, because there are genuine issues of material fact regarding whether OLV
controlled the manner and means of Plaintiff’s medical practice, as a matter of law,
summary judgment is precluded.
2.

Skill Required

Plaintiff’s responsibilities included performing surgical procedures and treating GI
patients at OLV. Defendants argue that the education, training, and skill required to obtain
a medical license for and engage in the practice of medicine indicate independent
contractor status. (Def. Supp. Mem. at 33.)
Plaintiff cites to Aymes v. Bonelli, 980 F.2d 857, 862 (2d Cir. 1992), in claiming her
skill level supports a finding of employee because the Aymes court lists only “architects,
photographers, graphic artists, drafters and . . . computer programers [as] highly-skilled
independent contractors.” Aymes, 980 F.2d at 862. Plaintiff claims that physicians are not
on the list and thus not independent contractors.
While there is no Second Circuit precedent that states that the nature of a
physician’s occupation ipso facto imposes independent contractor status, there is no
indication that the Aymes list was meant to be complete and, further, the Second Circuit
has found as independent contractors positions not listed in Aymes. See, e.g., Lee v.
Glessing, 51 Fed. Appx. 31, 33 (2d Cir. 2002) (finding that physical therapist had high
degree of skill as evidenced by his education, licensure, extensive work history, and ability
to perform work without supervision and discretion as to how to treat patients). Indeed,
16

several district and circuit courts, in applying the Reid factors, have held that the level of
skill required for physicians generally tips in favor of independent contractor status. See
Alexander, 101 F.3d 487 (finding that physician was independent contractor of hospital
where he received no paid salary or benefits from hospital, had authority to exercise
medical judgment over his practice, was free to associate with other hospitals, and
possessed “significant specialized skills”); Diggs, 847 F.2d at 274 (stating that “[a]
physician's work involves considerable skill.”); Chadha v. Hardin Memorial Hospital, 202
F.3d 267 (6th Cir. 2000) (rejecting discrimination claim where, among other things, plaintiff
was “a trained physician with specialized skill in anesthesia and he exercised independent
judgment in patient care.”) (unpublished opinion); accord, Pamintuan v. Nanticoke
Memorial Hosp., Inc., No. 96-223-SLR, 1997 WL 129338, at *10 (D. Del. 1997)
(gynecologist/obstetrician “brought specialized medical skills to the workplace and operated
quite independently.”); Vakharia v. Little Co. of Mary Hosp. & Health Care Centers, 2
F.Supp.2d 1028 (N.D. Ill.1998) (anesthesiologist possessed specialized skills).
Accordingly, this Court finds that this factor weighs in favor of independent
contractor status for Plaintiff.
3.

Duration of Relationship between Plaintiff and OLV

Plaintiff had privileges at OLV for nearly ten years, and her tenure with OLV ended
when her privileges automatically expired, like those of all medical staff at the Hospital.
Thus, Plaintiff concedes that the duration of the parties’ relationship is “not significant here
and should be disregarded.” (Pl. Mem. at 7-8.)
Because this Court has already determined that summary judgment is inappropriate
in this case, it need not consider the length of time Plaintiff worked with OLV as a
17

determinate factor in the Reid analysis.
4.

Right to Assign Additional Projects

Plaintiff states that she was required to be “on call” for emergencies and was
required to provide services to OLV’s patients, and as such, supports her position that she
was an employee because OLV exercised its authority to assign her additional projects.
(Pl. Mem. at 17.)
Several courts have found that the “on call” requirement does not necessarily create
an employer-employee relationship. See, e.g, Alexander, 101 F.3d at 493 (finding that the
plaintiff physician's requirement to be “on call” was a product of his position and not
sufficient to establish an employer-employee relationship); Vakharia, 2 F.Supp.2d at 1031
(while hospital’s “on call” requirement may support status as an employee, standing alone
it is insufficient to establish employee status); cf. Cilecek, 115 F.3d at 259 (finding that
physician was not an employee for purposes of Title VII, pointing out that plaintiff-physician
was not required to be on-call and had autonomy over his scheduling).
Here, Plaintiff admits in her affidavit that the requirement that she be “on call” was
a condition of her maintaining staff privileges as set forth in the Hospital’s bylaws (Pl. Aff.,
¶ 126.) This Court agrees that in this case, Plaintiff’s “on call” status was a condition that
Plaintiff accepted when she applied for staff privileges, and was not a duty assigned after
she obtained her privileges.
This factor, accordingly, does not favor either a finding of employee or
non-employee.
5.

Plaintiff’s Discretion over Hours Worked and Schedule

Defendants argue that Plaintiff had complete autonomy over the hours and times
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during which she conducted her medical practice. (Def. Supp. Mem. 40-42.)
Plaintiff, on the other hand, contends that she was “forced” to conduct her medical
practice in accordance with a schedule established by OLV. (Pl. Aff., ¶¶ 148-54.)
Specifically, Plaintiff avers that she was only allowed to use the endoscopy rooms at
certain times based on OLV’s scheduling system, and that the GI unit limited scheduling
on certain days. According to Plaintiff, OLV had the exclusive authority to transfer her from
one schedule of hours or days to another, limit the number of hours she could work, and
limit the number of procedures she could perform on a given day. Plaintiff’s schedule was
also dependent upon the availability of OLV nurses who monitored Plaintiff’s work and
“without whom [her] work could not be accomplished.” (Pl. Aff., ¶ 150.) Moreover, Plaintiff
has submitted evidence that physicians with staff privileges at OLV would have to apply
in writing for a leave of absence, which would then be granted or denied by the Hospital.
(Pl. Ex. 15 at 59.)
Accordingly, this Court believes there is a dispute as to whether Plaintiff could
herself provide her own schedule or whether OLV had control over how her work schedule
was set.
6.

OLV’s Tax, Benefit, and Payroll Treatment of Plaintiff

OLV did not pay Plaintiff a salary, wages, benefits, or any other monetary
compensation. She billed patients or their insurers directly for her services, while OLV
billed them separately for the corresponding use of its facilities. Additionally, it is
undisputed that Plaintiff carried her own professional liability insurance. Thus, as this Court
previously observed, these factors “heavily favor a finding of non-employee.” (Mem. &

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Order 3/8/2006 at 21.)7
7.

Plaintiff’s Role in Hiring and Paying Assistants

Plaintiff started at OLV as a sole practitioner and continued as one throughout her
tenure there. OLV provided her nurses and administrative staff.
The parties seem to agree that the Plaintiff’s role in hiring and paying assistants is
irrelevant to the analysis in this case because the nature of Plaintiff’s work did not require
that she hire any assistants, citing to Eisenberg v. Advance Relocation & Storage, Inc., 237
F.3d 111 (2d Cir. 2000), a case involving a female warehouse worker whose duties
included moving furniture. (Def. Supp. Mem. at 42-43; Pl. Mem. at 9.) In the physicianhospital context, however, it appears that courts have considered this factor in determining
employee status where a hospital provides nursing staff or other assistance. See, e,.g.,
Alexander, 101 F.3d at 493 (plaintiff was independent contractor despite the fact that he
“did not supply his own equipment or assistants”); Shah, 355 F.3d at 500 (finding
independent contractor status where hospital did not dictate plaintiff’s hours or pay his
assistants).
Here, OLV was exclusively responsible for the hiring, supervising, and paying the
individuals who assisted Plaintiff in her work. (Pl. Aff., ¶ 142.) When Plaintiff was on-call,
she used OLV’s nurses and assistants, and, further, her work at OLV was dependent on
the availability of those assistants. The Hospital also maintained exclusive authority over

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The parties did not brief the prelim inary question of rem uneration, which is an essential condition
to Title VII claim s. O'Connor v. Davis, 126 F.3d 112, 115-116 (2d Cir. 1997). Thus, this Court assum es for
purposes of this m otion that the benefits Plaintiff did receive (facility, equipm ent, and supplies; uniform s
and protective equipm ent; an identification card, parking at the Hospital; staff assistance; and access to
OLV Hum an Resources files) constitutes “indirect econom ic rem uneration” sufficient to establish that
Plaintiff was hired by OLV necessary for the application of com m on-law agencies principles set forth in
Reid. Id.

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staffing patterns in the GI lab, where Plaintiff performed her work. Moreover, Plaintiff’s case
is unique because the Hospital directed the GI lab nurses to supervise Plaintiff’s work and
report to the OLV administration any perceived deviations from standard practice and
policy as part of the QA Program that Plaintiff was subject to. (Pl. Aff., ¶ 144-146.)
In this Court’s view, this factor is relevant to whether OLV exercised control over
Plaintiff’s privileges and practice so as to warrant a finding that Plaintiff was an employee
of OLV, and Plaintiff has therefore raised a triable issue of fact as to the staffing of her
medical assistants.
8.

Remaining Reid Factors

It is undisputed that the Hospital provided the location for Plaintiff’s medical practice,
provided the necessary equipment and supplies for her medical practice, and was in the
regular business of providing medical services. Such is the case for most physicianhospital situations. See Cilecek, 115 F.3d at 262 (“that Cilecek used instruments of the
hospital emergency room that were supplied by the hospital is also inherent in the provision
of emergency medical services and likewise is not a reliable indicator of employee
status.”); see also Alexander, 101 F.3d at 493; Diggs, 847 F.3d at 273. Accordingly, the
case law does not give significant weight to these factors, Aymes, 980 F.2d at 863-864,
and they are therefore indeterminate as to whether Plaintiff was an independent contractor
or an employer of OLV.
Nonetheless, in light of the dispute over the existence and degree of the Reid
factors as they apply to Plaintiff’s case, Plaintiff’s employment status can only be resolved
upon trial of the disputed material facts.

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D.

Plaintiff’s Remaining State Law Claims
Since the Second Circuit reversed this Court’s grant of summary judgment that

disposed of Plaintiff’s federal claims, it also vacated the grant of summary judgment on
Plaintiff’s pendant state claims of tortious interference with business relationships.
Salamon, 514 F.3d at 233.
For practical and equitable reasons, this Court will exercise supplemental jurisdiction
over Plaintiff’s claims of tortious interference with contract and business relations. Those
claims will be brought to trial as discovery has concluded, the record is fully developed, and
the claims are based on the same body of evidence as Plaintiff’s federal claims.
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motions are denied. The following
issues remain for trial are: (1) Whether Plaintiff was an employee of OLV for purposes of
Title VII; and, if so, (2) Whether Plaintiff was discriminated against and/or harassed by the
Defendants in violation of Title VII and NYSHRL; and (3) Whether Defendants tortiously
interfered with her contracts and prospective business relations.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motions for Summary Judgment
(Docket No. 101, 104, 106, 107) are denied.
FURTHER, the parties shall appear before this Court on May 11, 2012, at 9:00
a.m. for a status conference to set a trial date.
SO ORDERED.
Dated: March 30, 2012
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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