Underwood v. Roswell Park Cancer Institute,et al
Filing
26
DECISION AND ORDER: the motions to dismiss filed by Dr. Mohler #15 and Roswell Park #16 are GRANTED IN PART AND DENIED IN PART. The Clerk of Court is directed to terminate Does 1-50 from this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 01/13/2017. (ZS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIE UNDERWOOD, III,
Plaintiff,
Case # 15-CV-684-FPG
v.
DECISION AND ORDER
ROSWELL PARK CANCER INSTITUTE,
JAMES MOHLER individually and as Chair of
the Department of Urology, and Does 1-50,
Defendants.
INTRODUCTION
Plaintiff Willie Underwood, III, M.D. (“Dr. Underwood”) brings this action to remedy
alleged racial discrimination and retaliation by his employer, Roswell Park Cancer Institute
(“Roswell Park”), his supervisor, James Mohler, M.D. (“Dr. Mohler”), and Does 1-50. In his
Amended Complaint, Dr. Underwood seeks relief under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights
Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), 42 U.S.C. § 1981 (“section 1981”), 42 U.S.C.
§ 1983 (“section 1983”), New York Labor Law sections 740 and 741, the common law of
contract, and the Federal Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq.
(“HCQIA”). ECF No. 10.
Presently before the Court are motions to dismiss filed by Roswell Park and Dr. Mohler
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF Nos. 15, 16. For the
reasons stated below, both motions are granted in part and denied in part.
BACKGROUND 1
Roswell Park is a public benefit corporation that operates the Roswell Park Cancer
Institute, a cancer research and treatment center located in Buffalo, New York. ECF No. 10, at ¶
11. Dr. Underwood, an African American surgeon, has been employed by Roswell Park in the
Department of Urology since September 2008. Id. at ¶ 32, 33. Dr. Mohler, Chair of the
Department of Urology, is Dr. Underwood’s immediate supervisor. Id. at ¶ 36. Dr. Mohler
reports to the CEO and President of Roswell Park. Id. at ¶ 17. Does 1-50 “were employed by
[Roswell Park] and in such employment capacities, upon information and belief, had the final
decision-making authority regarding the complained-of acts against Dr. Underwood, and
authorized, participated in and/or ratified the complained-of acts against Dr. Underwood.” Id. at
¶ 12.
Dr. Underwood alleges that almost immediately upon being hired by Roswell Park in
September 2008, Dr. Mohler expressed a racial bias against him. Id. at ¶ 54. In particular Dr.
Underwood alleges that on several occasions, both in public and private settings and both in the
presence of Dr. Underwood and in the presence of others, Dr. Mohler stated that Dr.
Underwood’s success as a surgeon and a researcher were due entirely to his race and benefits he
received through affirmative action. Id. at ¶ 55. Dr. Mohler referred to Dr. Underwood as “an
affirmative action program achievement,” a “token Black,” 2 and also used “other such terms with
derogatory meanings that are racially discriminatory to disparage Dr. Underwood’s credentials,
career and reputation.” Id. at ¶ 56.
1
The following allegations are taken from Dr. Underwood’s Amended Complaint (ECF No. 10) and are
accepted as true for the purpose of evaluating the instant motions to dismiss.
2
When Dr. Underwood was hired by Roswell Park, he became the fourth physician-employee—and of those
four, the sole African American—in the Department of Urology. Id. at ¶ 37.
2
In addition, Dr. Underwood alleges that Dr. Mohler demonstrated a racial bias against
him by treating him differently than his white colleagues in numerous different ways. Those
allegations are summarized below.
I.
Income Disparity
At Roswell Park, the salary of Dr. Underwood and other physicians is determined by
multiple factors outlined in the Plan For The Management Of Clinical Practice Income At
Roswell Park Cancer Institute (“Income Plan”). Id. at ¶ 78. These factors include, among other
things: the amount of fees generated by the physician’s clinical practice; the extent and quality of
clinical, research, educational and administrative activities; academic and scholarly productivity;
and success in obtaining peer-reviewed grants and recognition by the scientific community. Id.
at ¶¶ 79-80.
Dr. Underwood was assigned the task and responsibility for research projects “focusing
on the major factors underlying health disparities among racial minorities and the influence of all
social, cultural, biological, behavioral, and neighborhood factors on those disparities.” Id. at ¶
63. As a result of research proposals Dr. Underwood submitted on behalf of Roswell Park, Dr.
Underwood was awarded two grants totaling $8 million from the National Cancer Institute,
which is part of the National Institute of Health (“NIH”). Id. at ¶ 64. Roswell Park received and
administered these grants, which led to national praise and attention due to the highly
competitive nature of the grants. Id. at ¶¶ 65-67. Aside from Dr. Mohler, Dr. Underwood is the
only Roswell Park urologist to be awarded an NIH grant.
Id. at ¶ 68.
Although Dr.
Underwood’s salary should have reflected his efforts in acquiring the $8 million NIH grants
pursuant to the Income Plan, he never received income-credit for the grants. Id. at ¶ 86.
In November 2009 Dr. Mohler reduced Dr. Underwood’s access to operative time,
patient referrals, and outpatient office hours, which adversely affected the computation of Dr.
3
Underwood’s salary under the Income Plan. Id. at ¶ 82. At the same time, Dr. Mohler required
that Dr. Underwood’s clinical production and earned income parameters remain unchanged. Id.
Prior to this change, Dr. Mohler never told Dr. Underwood that his performance was deficient or
gave Dr. Underwood an opportunity to address any inadequacies so he could resume his former
schedule. Id.
As a result of the reductions in his work assignments, Dr. Underwood received
negative evaluations from Dr. Mohler regarding his financial contributions to the Department of
Urology. Id. at ¶ 85.
Also in November 2009, Roswell Park hired a white surgeon in the Department of
Urology.
Id. at ¶ 87.
Although this surgeon had significantly less experience than Dr.
Underwood, had no peer-reviewed funding, and had fewer publications than Dr. Underwood, he
was compensated at a higher salary. Id. at ¶¶ 87-90.
When Dr. Underwood learned of this salary disparity, he asked Dr. Mohler to rectify it by
either increasing his salary to reflect his experience, clinic practice income, academic
accomplishments, national recognition and contributions to Roswell Park and the Department of
Urology, or in the alternative, increasing his salary to equal that of the white surgeon. Id. at ¶ 93.
Dr. Mohler denied this request, and Dr. Underwood retained counsel to discuss his salary
disparity with Dr. Mohler and the Roswell Park administration. Id. at ¶¶ 94, 96. Dr. Underwood
eventually secured a higher salary, but he was not provided any retroactive pay and still did not
receive a salary equal to that of the white surgeon. Id. at ¶ 99. Dr. Mohler also did not restore
Dr. Underwood’s prior access to operative time, patient referrals or outpatient office hours,
which further increased the disparity between Dr. Underwood’s salary and the white surgeon’s
salary. Dr. Underwood continues to receive a lower salary than this white surgeon despite Dr.
Underwood’s peer-reviewed funding, greater number of publications and more extensive clinical
experience. Id. at ¶ 101.
4
II.
Interference with Academic and Research Duties
In October 2010, Dr. Underwood had met all institutional requirements for promotion to
the position of Associate Professor.
Id. at ¶ 103.
However, Dr. Mohler delayed Dr.
Underwood’s promotion—and accompanying pay increase—until April 2011. Id. at ¶ 104.
Neither Dr. Mohler nor any other Roswell Park representative provided any objective
justification for this delay. Id. at ¶ 105.
In 2011, NIH scheduled a site visit to Roswell Park to review how the $8 million grants
were being used and their impact on local minority communities.
Id. at ¶ 108.
NIH
representatives expected Dr. Underwood to be present for the site visit because he was the
Principal Investigator on the grants. Id. at ¶ 109. However, Dr. Mohler refused to allow Dr.
Underwood to be present or to participate in the site visit. Id. at ¶ 110. Dr. Underwood was
embarrassed by this decision, professionally and personally, and alleges that Dr. Mohler
prevented him from participating because of his race and in order to cause harm to his career,
reputation, and salary. Id. at ¶¶ 110, 112. After the visit, NIH submitted a report in which NIH
commented on the fact that Dr. Underwood was not allowed to be present for the site visit and
demanded that Dr. Underwood be afforded adequate time to participate in the activities funded
by the NIH grants, including future site visits. Id. at ¶ 111.
Sometime in March or April 2011, Dr. Mohler instituted a “policy” in which physicians
in the Department of Urology were required to make up time spent away from Roswell Park
duties, including time spent engaging in academic pursuits and on vacation. Id. at ¶ 113.
Although this “policy” was referred to as a Urology Department Policy, Dr. Mohler only applied
it to Dr. Underwood and not to any of his white colleagues. Id. at ¶ 114. This policy negatively
affected Dr. Underwood’s salary by making it difficult for him to complete his ongoing clinical
and research work and hindering his ability to attain grants for future research. Id. at ¶ 115.
5
Because Dr. Underwood, unlike his white colleagues, had no direct control over the scheduling
of his office hours or operation time, he had to find make-up time on his own to satisfy the
policy. Id. at ¶ 117. Dr. Underwood informed Dr. Mohler and other superiors at Roswell Park
about the difficulty he was experiencing, but the policy remained in effect. Id. at ¶ 116.
III.
Prostate Database and Kidney Database
In addition to his clinical duties and funded research, Dr. Underwood served as Principal
Investigator of two different databases, the Kidney Database and the Prostate Database. Id. at ¶
57, 61. Dr. Underwood was responsible for monitoring and managing the information contained
in these databases, which included information about surgeries performed at Roswell Park (such
as the diagnoses, protocols and procedures used, existence of any complications, and outcomes).
Id. at ¶ 58.
On February 28, 2011, Dr. Underwood sent Dr. Mohler and other relevant members of
the Roswell Park administration an email outlining certain concerns Dr. Underwood had with the
Prostate Database. Id. at ¶ 122. Specifically, Dr. Underwood was concerned that Dr. Mohler
and others at Roswell Park had acquired funding grants based upon representations that the
Prostate Database would be used in clinical research, even though the Prostate Database had only
been approved for internal quality control and had not been approved by the Institutional Review
Board (“IRB”) 3 for use in clinical research. Id. at ¶ 123. Dr. Underwood was also concerned
that information about surgery complications was missing. Id. at ¶ 129. The flawed data “could
potentially result in incorrect research, resulting in substantial and specific danger to the public
health or safety.” Id. at ¶ 210.
3
IRB approval must be obtained before human data is used in clinical research. Id. at ¶ 123.
6
Although others expressed similar concerns and agreed that something needed to be done
to protect the integrity of the Prostate Database, nothing was done to remedy the situation. Id. at
¶ 131. On August 17, 2011, Dr. Underwood resigned from managing the Prostate Database. Id.
Although Dr. Underwood was deeply concerned about the accuracy and integrity of the
Prostate Database, he did not have those same concerns about the Kidney Database. See id. at ¶
135.
Nevertheless, in September 2011, Dr. Mohler removed Dr. Underwood as Principal
Investigator of the Kidney Database. Id. at ¶ 134. Dr. Underwood did not learn of this change
until February 2012, when he was shown a memorandum to Roswell Park staff purporting to be
from Dr. Underwood and stating that he was resigning from the Kidney Database and
transferring his position to Dr. Schwaab, a white surgeon in the Urology Department. Id. at ¶
138. Dr. Underwood did not write this memorandum, nor did he agree to transfer his position to
Dr. Schwaab or anyone else. Id. at ¶ 139. Later that year, Dr. Underwood requested access to
information in the Kidney Database for use in his research, but Dr. Schwaab denied the request.
Id. at ¶ 145. Access and use of the Kidney Database is available to Dr. Underwood’s white
colleagues, but remains unavailable to Dr. Underwood. Id. at ¶¶ 146, 150. Without access to the
Kidney Database, Dr. Underwood is prevented from conducting and publishing research based
on that data. Id. at ¶ 147.
When Dr. Underwood questioned the manner of and basis for his removal from the
Kidney Database, Roswell Park representatives accused him of verbally abusing a Roswell Park
employee. Id. at ¶ 151. Dr. Underwood completely denied the allegations and requested an
investigation. Id. at ¶ 152. Although the Roswell Park Human Resources Department (“HR
Department”) initially refused to investigate, they eventually reviewed surveillance tapes and
spoke to potential witnesses after Dr. Underwood obtained legal counsel. Id. at ¶¶ 153-56. The
HR Department ultimately concluded that all of the allegations against Dr. Underwood were
7
false and unsubstantiated. Id. at ¶ 157. Despite the HR Department’s findings, Dr. Underwood
was not restored as Principal Investigator of the Kidney Database and is still unable to access
that data. Id. at ¶¶ 160-61.
IV.
Concerns About Patient Care and Reporting Complications
In March 2012, Dr. Underwood had a series of conversations with Roswell Park
representatives about his concern that Dr. Mohler and other physicians in the Urology
Department were not reporting complications and patient deaths for peer review, as is required.
Id. at ¶ 163. When Dr. Underwood stated that he would make a formal complaint about how a
particular surgery was handled, 4 he was told by Roswell Park’s Vice President of Ethics that “if
you file a complaint outside of the institution, it’s going to have ramifications not only for the
person you file the complaint against, but for you and for the institute. You have to know that.”
Id. at ¶ 165. Dr. Underwood understood this as a warning that his career would be jeopardized if
he made a formal complaint based upon the concerns he had raised. Id.
In December 2012, Dr. Mohler again reduced Dr. Underwood’s outpatient office hours
and transferred a portion of his case load to a white surgeon who was new to the Urology
Department. Id. at ¶¶ 166-67. This further disrupted Dr. Underwood’s practice, limited his
access to work at Roswell Park, and negatively affected his clients by delaying their
appointments to see Dr. Underwood. Id. at ¶¶ 166-170. Dr. Mohler did not interfere with the
schedules of any of Dr. Underwood’s white colleagues. Id. at ¶ 169. Although Dr. Underwood
repeatedly complained to the Roswell Park administration about these disruptions in his practice,
nothing was done to remedy the situation. Id. at ¶¶ 170-72, 178-80.
Also in December 2012, Dr. Mohler directed that Dr. Underwood’s office be moved out
of the Urology Department to a building located approximately half of a mile away. Id. at ¶ 173.
4
Dr. Underwood alleges that “by all medical standards” this surgery should not have been performed due to
the patient’s medical history. Id. at ¶ 164.
8
Dr. Mohler assigned Dr. Underwood’s previous office to a white surgeon new to the Department.
Id. at ¶ 174. Dr. Underwood was only notified about the relocation 48 hours in advance, and
neither Dr. Mohler nor Roswell Park ever provided any reason for the move. Id. at ¶ 175. The
new office was “uninhabitable” because it was dirty, lacked suitable furniture, and is located in a
noisy area that was undergoing construction. Id. at ¶ 176. Because he was physically separated
from the rest of the Urology Department, including his secretary, this move also hindered Dr.
Underwood’s ability to communicate with the rest of the Urology Department and manage the
logistics of the research he was conducting. Id. Dr. Mohler did not similarly isolate any of Dr.
Underwood’s white colleagues. Id. at ¶ 177.
In January 2013, Dr. Underwood learned that Dr. Mohler had created a “deviation from
care report form” which he directed fellows to fill out and give to him after any surgical
complication. Id. at ¶ 181. Dr. Mohler kept these forms in his possession, thereby preventing
complications from being reported through the official process. Id.
In May 2013, Dr. Underwood met with Roswell Park’s CEO, Roswell Park’s Vice
President of Human Resources, Roswell Park’s Medical Director, and Dr. Mohler. Id. at ¶ 186.
At this meeting, Dr. Underwood called attention to the improper omission of complications data
in the Prostate Database and called for an external review of the Urology Department’s practices.
Id. at ¶¶ 186-87. Although Roswell Park’s CEO and Medical Director agreed that an external
review was in order, Dr. Mohler responded that “I just worry about our national reputation,
which is good, in whether this is a wise thing to do…we don’t need a bunch of people to look at
something and say this is not right.” Id. at ¶ 188. At this same meeting, Dr. Underwood
expressed his opinion that Dr. Mohler was failing to report complications on operations that he
performed. Id. at ¶ 189. Dr. Underwood also stated that an external review would demonstrate
that he was being treated differently than his white colleagues in the Urology Department. Id.
9
Although Roswell Park agreed to conduct a review of all cases in the Urology Department, no
review was ever conducted. Id.
On June 4, 2013, Dr. Underwood met with Roswell Park Deputy Director Dr. Candace
Johnson (“Dr. Johnson”). Id. at ¶ 191. Dr. Underwood informed her that Dr. Mohler had lied
about his clinical performance. Id. The next day, Dr. Underwood forwarded an article to
Roswell Park representatives regarding the expected frequency of complications in the
operations that Dr. Mohler had been performing. Id. at ¶ 190. Dr. Underwood expressed his
concern that Dr. Mohler’s rate of complications were far higher than set out in the article, but
that he had not reported any patient deaths for 2012 or 2013. Id.
V.
Peer Review
In January 2013, unbeknownst to Dr. Underwood, Dr. Mohler initiated a “peer review” of
Dr. Underwood’s cases. Id. at ¶ 182. Dr. Mohler assembled a binder of select cases in which
Dr. Underwood allegedly performed poorly and sent the binder to Roswell Park’s then-CEO Dr.
Donald Trump (“Dr. Trump”) and other members of the Roswell Park administration. Id. Some
of the cases attributed to Dr. Underwood in the binder, including a case in which the patient died,
were actually handled by other physicians. Id. at ¶ 184.
In the binder, Dr. Mohler also made false and misleading statements about Dr.
Underwood’s professional conduct. Id. For example, Dr. Mohler alleged that Dr. Underwood
had instructed the fellows assisting him not to report complications that had occurred with
patients; that Dr. Underwood had not reported patient complications himself; that Dr.
Underwood had made professional errors of judgment about patient care; and that he had bullied
fellows into hiding his mistakes. Id. at ¶¶ 184-85. Dr. Underwood alleges that Dr. Mohler knew
that the accusations in the binder were false. Id. at ¶ 185.
10
Dr. Underwood did not learn of the review until October 2013, when he was informed
that Roswell Park’s Medical Staff Executive Committee had formed a subcommittee to review
the binder. Id. at ¶ 192. After the subcommittee reviewed the cases in the binder, they sent
seven cases to a panel of external reviewers with more expertise in the subject matter of the
cases. Id. at ¶ 192. Rather than send the entire record on each case, however, Roswell Park sent
only portions of the case files to the external reviewers. Id. The external reviewers were chosen
by Dr. Trump and Dr. Mohler. Id. at ¶ 194.
Dr. Underwood alleges that the review violated Roswell Park bylaws in several ways. Id.
at ¶ 193. First, the three-member subcommittee included Roswell Park’s Medical Director and
its President of Medical Staff. Id. Second, Dr. Underwood was not notified that a review was
taking place until ten months after it had been initiated by Dr. Mohler.
Id.
Third, the
subcommittee did not interview Dr. Underwood or allow him to provide an explanation for the
cases included in the binder. Id.
Although several white members of the Urology Department had worse clinical
morbidities than those in which Dr. Underwood was accused, they were not similarly scrutinized.
Id. at ¶ 203.
VI.
Revocation of Staff Privileges
In November 2013, Dr. Mohler refused to renew Dr. Underwood’s staff privileges. 5 Id.
at ¶ 195.
Dr. Mohler premised this refusal on the accusations in the binder and on Dr.
Underwood’s low volume of robotic surgical cases. Id. However, during this same time period,
Dr. Mohler had approved privileges for a white surgeon in the Urology Department who had a
5
Staff privileges refer to a physician’s ability to practice medicine at a medical facility. Id. at ¶ 196.
Privileges must be renewed every two years, and a denial or reduction of privileges must be reported to the National
Practitioner database and the New York State Board of Medicine. Id. A physician who has had privileges denied or
reduced must also disclose that fact to any medical establishment where he or she attempts to work in the future. Id.
Denial or reduction of privileges also makes it difficult for a physician to renew his or her license or obtain a
medical license in another state. Id.
11
lower number of robotic surgeries than Dr. Underwood.
Id.
By refusing to renew Dr.
Underwood’s privileges, Dr. Mohler severely harmed Dr. Underwood’s professional reputation
and hindered his ability to obtain new employment or advance his career. Id. at ¶ 197.
In 2014, Dr. Underwood filed an Internal Code of Conduct Complaint alleging that Dr.
Mohler had made false accusations in the peer review binder regarding Dr. Underwood’s
conduct with staff and fellows. Id. at ¶ 198. Dr. Underwood retained counsel, and a former
fellow testified in front of Roswell Park’s Vice President of Human Resources, Roswell Park’s
General Counsel, and Roswell Park’s Chief Institute Operation Officer. Id. at ¶ 200. The fellow
unequivocally stated that Dr. Mohler’s accusations were false, that Dr. Underwood reported all
surgical complications, and that one of the cases in the peer review binder involved an unusual
form of leukemia rather than a mistake by Dr. Underwood. Id. The fellow also stated that he
had witnessed complications in surgeries performed by other members of the Urology
Department that were not reported or were reported inaccurately. Id.
Although Dr. Underwood’s counsel had found other fellows who were willing to testify,
the HR Department refused to continue the meeting or permit more testimony. Id. at ¶ 201. The
HR Department found that Dr. Mohler’s accusations were “unsubstantiated” rather than false and
refused to take any action against Dr. Mohler. Id. at ¶ 202.
In April 2014, Dr. Underwood met with Dr. Trump and Dr. Johnson. Id. at ¶ 205. Dr.
Underwood again expressed his concern that the Urology Department was not reporting
complications, including patient deaths, and called for an outside review of all doctors in the
department. Id. Dr. Underwood was not the only physician in the Urology Department to voice
similar concerns. See id. at ¶¶ 128, 209. On June 18, 2014, Dr. Underwood again met with Dr.
Trump. Id. at ¶ 207. Dr. Underwood told Dr. Trump that Dr. Mohler had been treating him
differently because of his race and had made it very difficult for him to effectively care for his
12
patients. Id. Dr. Trump told Dr. Underwood to “hang in there” and that he would get back to
him, but never did. Id.
VII.
Advanced Training Course
In a letter dated July 24, 2014, Roswell Park’s Vice President of Human Resources
confirmed that there was no evidence supporting Dr. Mohler’s allegations against Dr.
Underwood. Id. at ¶ 208. Notwithstanding this letter, Roswell Park presented Dr. Underwood
with three options: (1) undergo a further review of the subcommittee’s findings, which could
lead to the revocation of his medical license; (2) accept a curtailment of surgical duties related to
renal medical issues; or (3) participate in an advanced training course at the University of
Rochester. Id. at ¶ 212. Dr. Underwood chose the third option. Id. at ¶ 213. As part of the plan,
Roswell Park agreed that if Dr. Underwood completed the training with satisfactory reviews, he
would return to Roswell Park and be able to work with the same independence he had before Dr.
Mohler initiated the peer review. Id.
Dr. Underwood observed and performed surgery at the University of Rochester from July
2014 through October 2014. Id. at ¶ 215. During that time, he was not allowed to perform his
work at Roswell Park and his patients were reassigned to white physicians in the Urology
Department. Id. Shortly before he began his work at the University of Rochester, Roswell Park
sent a letter to the University of Rochester staff in which Roswell Park criticized Dr. Underwood
and maligned his clinical abilities. Id. at ¶ 214. However, after completing the four-month
training period, the University of Rochester gave Dr. Underwood’s performance a positive
review and reported that they found no deficiencies or problems with his performance or
conduct. Id. at ¶ 216. The University of Rochester further expressed that it was pleased and
impressed with Dr. Underwood’s performance and that it would hire him if a position were
available. Id. Dr. Edward Messing, who had supervised Dr. Underwood at the University of
13
Rochester, indicated that he found no weaknesses in Dr. Underwood’s clinical performance and
that there was no reason not to re-credential Dr. Underwood. Id. at ¶ 220.
VIII.
EEOC Charge
In early October 2014, Dr. Underwood filed a charge of racial discrimination and racially
hostile working environment against Roswell Park with the Equal Employment Opportunity
Commission (“EEOC”) and the New York State Division of Human Rights. Id. at ¶ 217. The
charge was received by the EEOC on October 15, 2014. 6 Id. According to Dr. Underwood, the
EEOC is required to send a copy of that charge or notice of the charge to the charged party (in
this case Roswell Park) within ten days of receiving it. Id. at ¶ 218.
On October 22, 2014, Dr. Mohler sent Dr. Underwood an email informing him that he
would not be able to perform clinical activities at Roswell Park for the first week after his return
from the University of Rochester. Id. at ¶ 219.
IX.
Leave of Absence from Hospital Work
On November 4, 2014, one day after Dr. Underwood returned to Roswell Park, Dr.
Mohler asked Dr. Underwood to meet with him and Roswell Park’s Vice President of Human
Resources to discuss his schedule. Id. at ¶ 222. Despite the positive evaluations from the
University of Rochester and the agreed-upon plan to allow Dr. Underwood to perform his work
independently after completing the training, Dr. Mohler and Roswell Park refused to approve Dr.
Underwood’s privileges. Id. Roswell Park’s Vice President of Human Resources stated that Dr.
Underwood had three options: (1) take eight months off from working at the hospital and
perform only research work; (2) take a leave of absence for six months; or (3) accept staff
privileges on a temporary basis, but with close supervision by Dr. Mohler. Id. Feeling coerced,
6
Upon his request, the EEOC issued Dr. Underwood a Notice of Right to Sue letter on April 30, 2015. Id. at
¶ 226.
14
Dr. Underwood accepted the first option and took an eight-month leave of absence 7 from
working at the hospital. Id. at ¶ 223.
X.
Removal as Associate Director of Outreach
In late 2014, Dr. Mohler removed Dr. Underwood from his position as Associate Director
of Outreach. Id. at ¶ 224. This position, which Dr. Underwood had held for approximately two
years, entailed brokering partnerships with other medical facilities to increase research
productivity at Roswell Park. Id. Dr. Mohler was replaced by a white physician and was not
given any notice or explanation of this change. Id.
XI.
Denial of Access to Data
In June 2015, Dr. Underwood attempted to begin work on an extension of the
Community Network Project, for which he had received funding from NIH in 2010. Id. at ¶ 227.
Roswell Park was aware of the project, had signed off on the project during its application, and
had accepted funding to conduct the project. Id. However, Roswell Park interfered with Dr.
Underwood’s ability to do the research by denying him access to data that was readily available
and provided to his white colleagues. Id. Dr. Underwood alleges that Roswell Park knew that
Dr. Underwood would not be able to complete the research without access to this data, and that
Roswell Park interfered with the project because “the expected and anticipated results and
conclusions of the research would expose a pattern and practice of racial discrimination by
Defendants towards African Americans, even as patients.” Id.
XII.
Supervised Privileges
On July 6, 2015, Dr. Mohler wrote a letter to Roswell Park’s President of Medical Staff.
Id. at ¶ 229.
In the letter, Dr. Mohler recommended that Dr. Underwood only be given
“supervised privileges” upon his return to the hospital. Id. Supervised privileges would not
7
This leave of absence started on December 10, 2014 and lasted until August 9, 2015. Id. at ¶ 223.
15
allow Dr. Underwood to operate and carry out his professional duties with the same
independence as provided to the other members of the Urology Department, who are white. Id.
at ¶ 230. The additional scrutiny placed on Dr. Underwood adversely affects his morale and
reputation among his peers and medical staff. Id.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6), a court “must accept as true
all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 572 (2007), and “draw all reasonable inferences in Plaintiff’s favor.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The application of this
standard is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
When deciding a motion under Rule 12(b)(6), a court ordinarily may not rely on matters
outside the pleadings unless the court treats the motion as one for summary judgment under Rule
56 and gives the parties a reasonable opportunity to present relevant evidence. Fed. R. Civ. P.
12(d). However, as the Second Circuit explained in Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002):
For purposes of this rule, “the complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference.” Int’l Audiotext Network, Inc. v. Am. Tel. & Tel.
Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (quoting Cortec Indus., Inc. v.
16
Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)); see Fed. R. Civ. P. 10(c) (“A
copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”). Even where a document is not incorporated by reference, the
court may nevertheless consider it where the complaint “relies heavily upon its
terms and effect,” which renders the document “integral” to the complaint. Int’l
Audiotext, 62 F.3d at 72.
Id. at 152-53 (2d Cir. 2002). With respect to documents that are deemed “integral” to the
complaint, “it must be clear on the record that no dispute exists regarding the authenticity or
accuracy of the document” and that “there exist no material disputed issues of fact regarding the
relevance of the document.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). Furthermore,
“where plaintiff has actual notice of all the information in the movant’s papers and has relied
upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6)
motion into one under Rule 56 is largely dissipated.” Chambers, 282 F.3d at 153 (quoting
Cortec, 949 F.2d at 48) (internal quotations omitted).
Here, Roswell Park attached the following documents to its motion to dismiss: a copy of
the Charge of Discrimination against Roswell Park filed by Dr. Underwood and received by the
EEOC on October 15, 2014 (ECF No. 16-5, at 5-7); a copy of the Notice of Charge of
Discrimination sent by the EEOC on December 18, 2014 and received by Roswell Park on
December 22, 2014 (ECF No. 16-5, at 2-4); and a copy of the EEOC Notice of Right to Sue
letter sent to Dr. Underwood on April 30, 2015 (ECF No. 16-6).
The EEOC Charge of Discrimination and Notice of Right to Sue letter are incorporated
by reference into Dr. Underwood’s Amended Complaint and will therefore be considered in the
context of the instant motions to dismiss. See ECF No. 10 at ¶¶ 217-19, 226. The Notice of
Charge of Discrimination, however, will not be considered. Dr. Underwood does not reference
this document in his Amended Complaint, and its accuracy is not undisputed; although it
suggests that Roswell Park received notice of Dr. Underwood’s EEOC charge on December 22,
17
2014, Dr. Underwood alleges that the EEOC notified Roswell Park much earlier—within ten
days of receiving the charge on October 15, 2014. Id. at ¶ 218.
DISCUSSION
Dr. Underwood asserts the following types of claims against Roswell Park, Dr. Mohler,
and Does 1-50: discrete discrimination, retaliation, hostile work environment, whistleblower
retaliation, and breach of contract. ECF No. 10. In their motions to dismiss, Roswell Park and
Dr. Mohler raise several arguments challenging the viability of these claims. ECF Nos. 15, 16.
In addition, both Roswell Park and Dr. Mohler argue that the HCQIA does not provide a private
right of action and that all claims against Does 1-50 should be dismissed. Id. Lastly, Roswell
Park argues that it is immune from punitive damages in this case. ECF No. 16.
I.
Discrete Discrimination
Dr. Underwood seeks relief under Title VII, the NYSHRL, section 1983, and section
1981 for numerous alleged discrete acts of discrimination. The Court will address Defendants’
arguments regarding each statute in turn.
A. Title VII
Title VII makes it 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. As a preliminary matter, Dr. Underwood’s Title VII claim is dismissed as to
Dr. Mohler because “individuals are not subject to liability under Title VII.” Sassaman v.
Gamache, 566 F.3d 307, 315-16 (2d Cir. 2009) (quoting Patterson v. County of Oneida, 375
F.3d 206, 221 (2d Cir. 2004)). Roswell Park argues that many of the allegations set forth in Dr.
Underwood’s Amended Complaint are either time-barred or were not presented to the EEOC.
ECF No. 16-1, at 9-13.
18
i.
Statute of Limitations
As relevant here, a plaintiff alleging discrimination in violation of Title VII must file a
charge with the EEOC “within three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1). This statute of limitations “precludes recovery
for discrete acts of discrimination or retaliation that occur outside the statutory time period.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
Because Dr. Underwood filed his EEOC charge on October 15, 2014, he may only
maintain an action with respect to discrete acts of discrimination that happened on or after
December 19, 2013. For example, Dr. Underwood alleges that Roswell Park forced him to
undergo a training course at the University of Rochester from July 2014 through October 2014;
failed to renew his privileges after he completed the course and forced him to take an eightmonth leave of absence from working at the hospital (December 10, 2014 through August 9,
2015); and removed him from his position as Associate Director of Outreach in late 2014. It is
also important to note that although Dr. Underwood alleges that he was paid less than his white
colleagues beginning in 2008, he is not precluded from alleging discrete acts of discriminatory
pay after December 19, 2013. See 42 U.S.C. § 2000e-5(e)(3)(A).
With respect to alleged discrete acts of discrimination that occurred before December 19,
2013, Dr. Underwood argues that the “continuing violation” doctrine applies. ECF No. 22, at 47; ECF No. 23, at 9-13. Under that doctrine, if a plaintiff has been subjected to an ongoing
policy of discrimination and at least one incident of discrimination occurred within the statutory
period, “all claims of acts of discrimination under that policy will be timely even if they would
be untimely standing alone.” Chin v. Port Auth. of N.Y. & New Jersey, 685 F.3d 135, 155-56 (2d
Cir. 2012). However, the Supreme Court in Morgan held that “discrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in timely filed charges.
19
Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Morgan,
536 U.S. at 113. Thus, to the extent the continuing violation doctrine is viable at all after
Morgan, it cannot apply to discrete acts of discrimination. Chin, 685 F.3d at 157 (holding that
under Morgan, discrete acts outside of the statutory period “cannot be brought within it, even
when undertaken pursuant to a general policy that results in other discrete acts occurring within
the limitations period”).
The Court in Morgan explained that “[d]iscrete acts such as termination, failure to
promote, denial of transfer, or refusal to hire are easy to identify.
Each incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable ‘unlawful employment practice.’” Id. at 114. A claim based solely on the delay of
Dr. Underwood’s promotion to Associate Professor from October 2010 until April 2011, for
example, would be time-barred. With respect to other actions that an employer may take,
however, determining whether the action is a discrete “unlawful employment practice” under
Morgan may depend on the specific nature of that action and other surrounding circumstances.
Therefore the Court need not identify, at this early stage of the litigation, the specific allegations
before December 19, 2013 that are barred by the statute of limitations. 8
ii.
Exhaustion
Dr. Underwood’s EEOC charge alleges that he was subjected to continuing disparate
treatment because of his race and a racially hostile work environment. ECF No. 16-5, at 5-7.
Although Dr. Underwood does make some allegations in his Amended Complaint that were not
included in his EEOC charge, unexhausted Title VII claims may still be sustained if they are
8
The Court is also mindful of the fact that even if some of the actions described in Dr. Underwood’s
Amended Complaint are time-barred, the statute of limitations does not bar him from using those acts “as
background evidence in support of a timely claim.” Morgan, 536 U.S. at 113. Thus, early resolution of all the
statute of limitations issues in this case would not have a significant effect on the scope of discovery.
20
“reasonably related” to the exhausted claims. Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70
(2d Cir. 2006). The court in Williams explained:
[A] claim is considered reasonably related if the conduct complained of would fall
within the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge that was made. . . The central question is whether the
complaint filed with the EEOC gave that agency adequate notice to investigate
discrimination on both bases. The “reasonably related” exception to the
exhaustion requirement is essentially an allowance of loose pleading and is based
on the recognition that EEOC charges frequently are filled out by employees
without the benefit of counsel and that their primary purpose is to alert the EEOC
to the discrimination that a plaintiff claims he [or she] is suffering.
Id. (internal citations and quotations omitted).
An unexhausted claim is also “reasonably
related” if it alleges retaliation for filing the EEOC charge or alleges further incidents of
discrimination carried out in the same manner alleged in the EEOC charge. Wilson-Richardson
v. Reg’l Transit Serv., Inc., 948 F. Supp. 2d 300, 305 (W.D.N.Y. 2013).
Here, the allegations in Dr. Underwood’s Amended Complaint that were not included in
his EEOC charge are reasonably related and will not be dismissed on exhaustion grounds. Dr.
Underwood’s EEOC charge includes his most significant allegations of racial discrimination and
racially hostile work environment, see ECF No. 16-5, at 5-7, and Roswell Park has not pointed to
any allegations in the Amended Complaint that would not be expected to grow out of that
charge. ECF No. 16-1, at 9-13. The Amended Complaint also includes allegations of retaliation
for filing the EEOC charge and allegations of further incidents of discrimination carried out in
the same manner alleged in the EEOC charge. See ECF No. 10. Therefore, Roswell Park’s
motion to dismiss Dr. Underwood’s unexhausted claims is denied.
B. NYSHRL
The NYSHRL makes it “an unlawful discriminatory practice” for an employer to refuse
to hire, discharge, or otherwise discriminate against an individual with respect to the terms or
conditions of employment because of that individual’s race. N.Y. Exec. Law § 296. New York
21
courts examine claims under the NYSHRL “with the same analytical lens as corresponding Title
VII-based claims.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); see also Fanelli v. N.Y.,
51 F. Supp. 3d 219, 230 (E.D.N.Y. 2014) (“[t]he same standard is used when analyzing Title VII
and NYSHRL claims.”). However, unlike Title VII claims, individual liability is potentially
available under the NYSHRL. Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
Claims under the NYSHRL are subject to a three-year statute of limitations. Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
Both Roswell Park and Dr. Mohler argue that because Dr. Underwood filed his Amended
Complaint on November 18, 2015, he is barred from maintaining a claim under the NYSHRL
based on actions that occurred before November 18, 2012.
ECF Nos. 15-1, 16-1.
Dr.
Underwood, on the other hand, maintains that July 28, 2015, the date of his original Complaint,
should be used to calculate the statute of limitations period. ECF Nos. 22, 23.
Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure states that an amended pleading
relates back to the date of the original pleading when “the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in
the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). For a newly-added claim to relate back
under this rule, “the basic claim must have arisen out of the conduct set forth in the original
pleading.” ASARCO LLC v. Goodwin, 756 F.3d 191, 202 (2d Cir. 2014) (quoting Slayton v. Am.
Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006)), cert. denied, 135 S. Ct. 715 (2014). “The central
inquiry is whether adequate notice of the matters raised in the amended pleading has been given
to the opposing party within the statute of limitations by the general fact situation alleged in the
original pleading.” Id.
Dr. Underwood’s original Complaint, like the Amended Complaint, alleged racial
discrimination by Roswell Park and Dr. Mohler in violation of the NYSHRL. ECF No. 1. The
22
original Complaint also included substantially the same allegations of adverse actions taken
against Dr. Underwood. Id. Neither Dr. Mohler nor Roswell Park point to any allegation in the
Amended Complaint that is missing from the original Complaint. See ECF Nos. 15, 16, 24, 25.
Therefore, because Dr. Underwood filed his original Complaint on July 28, 2015, the relevant
cut-off date for the purpose of applying the statute of limitations to Dr. Underwood’s NYSHRL
claims is July 28, 2012. Dr. Underwood may maintain an action with respect to discrete acts of
discrimination that occurred on or after July 28, 2012. 9
C. Section 1983
Section 1983 provides a cause of action against “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the
United States. 42 U.S.C. § 1983. To state a claim for employment discrimination under section
1983, “a plaintiff must allege two elements: (1) the violation of a right secured by the
Constitution and laws of the United States, and (2) the alleged deprivation was committed by a
person acting under color of state law.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
87 (2d Cir. 2015) (quoting Feingold v. N.Y., 366 F.3d 138, 159 (2d Cir. 2004)) (internal
quotations omitted).
The Equal Protection Clause of the Fourteenth Amendment prohibits states from
discriminating against employees on the basis of race. Id. at 87-88. Once the color of law
requirement is met, an equal protection employment discrimination claim under section 1983 is
governed by the same standards as a Title VII claim, except that a section 1983 claim can be
9
Again, the Court declines to identify each allegation in the Amended Complaint prior to July 28, 2012 that
amounts to a “discrete act” and is therefore time-barred. The Court does note, however, that Morgan also governs
the standard for applying the continuing violation doctrine to NYSHRL claims. Bermudez v. City of N.Y., 783 F.
Supp. 2d 560, 574 (S.D.N.Y. 2011); Sotomayor v. City of N.Y., 862 F. Supp. 2d 226, 250 (E.D.N.Y. 2012), aff’d,
713 F.3d 163 (2d Cir. 2013).
23
brought against an individual. Id. at 88. Public benefit corporations such as Roswell Park are
treated as municipal entities for the purpose of liability under section 1983.
McIntyre v.
NuHealth--Nassau Univ. Med. Ctr., No. 11-CV -3934, 2011 WL 4434227, at *4 (E.D.N.Y. Sept.
19, 2011); McGrath v. Nassau Health Care Corp., 217 F. Supp. 2d 319, 330 (E.D.N.Y. 2002).
i.
Statute of Limitations
Claims brought under section 1983 in New York are subject to a three-year statute of
limitations. Vega, 801 F.3d at 79. The considerations set forth in Morgan also apply to
employment claims under section 1983. Id. Roswell Park and Dr. Mohler argue, as they did
regarding the Title VII and NYSHRL claims, that Dr. Underwood is barred from maintaining a
claim under section 1983 based on actions that occurred before November 18, 2012. ECF Nos.
15-1, 16-1. However, for the same reasons discussed above in the context of the NYSHRL, the
Court finds that (1) the relevant cut-off date for the purpose of applying the statute of limitations
to Dr. Underwood’s section 1983 claims is July 28, 2012; and (2) it would be premature for the
Court to identify each allegation prior to July 28, 2012 that amounts to a stand-alone “discrete
act” and would therefore be time-barred.
ii.
Dr. Mohler
Dr. Mohler advances two arguments regarding the discrete discrimination claims against
him under section 1983. First, Dr. Mohler points out that because Dr. Underwood is asserting a
section 1983 claim against Roswell Park, the claim against Dr. Mohler in his official capacity is
redundant. ECF No. 15-1, at 12-14; see Falkowski v. N. Fork Hous. All., Inc., No. 08-CV-2550,
2009 WL 3174029, at *10 (E.D.N.Y. Sept. 30, 2009) (“[O]fficial-capacity suits generally
represent only another way of pleading an action against an entity of which an officer is an
agent.”) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)) (internal quotations omitted).
Dr. Underwood agrees that “the official capacity claims against Defendant Mohler are
24
unnecessary.” ECF No. 22, at 18. Therefore, Dr. Mohler’s motion to dismiss is granted with
respect to the claims against him in his official capacity under section 1983.
Second, with respect to the discrete discrimination claims against him in his individual
capacity, Dr. Mohler argues that he is entitled to qualified immunity. ECF No. 15-1, at 14-15.
The doctrine of qualified immunity shields government employees from suits for damages under
section 1983 unless (1) the conduct at issue violated the plaintiff’s clearly established
constitutional rights and (2) a reasonable person in the defendant’s position would have known
that he or she was violating those rights. See, e.g., Lowth v. Town of Cheektowaga, 82 F.3d 563,
569 (2d Cir. 1996).
Qualified immunity is an affirmative defense and may be raised in the context of a
motion to dismiss under Rule 12(b)(6). McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004).
That being said, a defendant asserting the defense at this stage “faces a formidable hurdle . . . and
is usually not successful.” Bryant v. Steele, 25 F. Supp. 3d 233, 246 (E.D.N.Y. 2014) (quoting
Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191-92 (2d Cir.2006)) (internal quotations
omitted).
On a motion to dismiss, “[t]he defense will succeed only where entitlement to
qualified immunity can be established based solely on facts appearing on the face of the
complaint.” Bryant, 25 F. Supp. 3d at 246 (quoting McKenna, 386 F.3d at 436) (internal
quotations and alterations omitted). Given that standard, a motion to dismiss “is a mismatch for
immunity and almost always a bad ground of dismissal.” Barnett v. Mount Vernon Police Dep’t,
523 F. App’x 811, 813 (2d Cir. 2013) (quoting McKenna, 386 F.3d at 436) (internal quotations
omitted).
Dr. Mohler fails to show “on the face of the complaint” that he is entitled to qualified
immunity. See McKenna, 386 F.3d at 436. Rather, his argument consists of a single statement
that “it was reasonable under any standard for Dr. Mohler to investigate and act upon concerns
25
that [Dr. Underwood] was clinically deficient.” ECF No. 15-1, at 14. Therefore, Dr. Mohler’s
motion to dismiss on the basis of qualified immunity is denied.
iii.
Roswell Park
Roswell Park argues that Dr. Underwood fails to state a claim against it under section
1983 because his allegations “relate only to conduct by Dr. Mohler and not any municipal
policymaker.” ECF No. 16-1, at 17-20.
Although municipalities and other local governmental bodies are subject to liability under
section 1983, they may only be held liable “for their own illegal acts.” Pembaur v. Cincinnati,
475 U.S. 469, 479 (1986) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
665-683 (1978)) (emphasis in original). The Supreme Court has “consistently refused to hold
municipalities liable under a theory of respondeat superior.” Bd. Of Comm’rs of Bryan Cty.,
Okla. v. Brown, 520 U.S. 397, 403 (1997). Instead, a plaintiff seeking to impose liability on a
municipality under section 1983 must “demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged. That is, a plaintiff must show
that the municipal action was taken with the requisite degree of culpability and must demonstrate
a direct causal link between the municipal action and the deprivation of federal rights.” Id. at
404 (emphasis in original).
In this context, it is important to distinguish cases that present difficult questions of fault
and causation from those that do not. Where an action taken or directed by the municipality or
its authorized decisionmaker itself violates federal law, it is easy to conclude that municipal
liability attaches.
Id. at 404-405.
Further, “[i]f the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable to the
municipality because their decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988) (plurality opinion). On the other hand, where the plaintiff alleges that the municipality
26
has not directly inflicted an injury but nonetheless caused an employee to do so, “rigorous
standards of culpability and causation must be applied to ensure that the municipality is not held
liable solely for the actions of its employee.” Brown, 520 U.S. at 405.
Here, Dr. Underwood alleges that numerous acts of racial discrimination have been taken
against him during his employment at Roswell Park. With respect to the actions allegedly taken
directly by Roswell Park, such as forcing Dr. Underwood to undergo an eight-month training
program at the University of Rochester and refusing to approve his privileges once he completed
that program, municipal liability attaches and Roswell Park’s motion to dismiss is denied. Id. at
403-408; Pembaur, 475 U.S. at 479-485.
Most of the actions described in Dr. Underwood’s Amended Complaint, however, were
allegedly taken by Dr. Mohler. Dr. Underwood does not allege that Dr. Mohler was the final
decisionmaker, but rather that Does 1-50 “had the final decisionmaking authority regarding the
complained-of acts against Dr. Underwood.” Id. at ¶ 17.
In his Amended Complaint, Dr.
Underwood repeatedly states that Dr. Mohler acted “with the authorization and/or ratification of”
Roswell Park and Does 1-50. See, e.g., ECF No. 10 at ¶ 195.
Alone, these conclusory statements are not entitled to the assumption of truth and would
be insufficient to support municipal liability. Iqbal, 556 U.S. at 678. However, Dr. Underwood
does provide factual allegations to support the assertion that Roswell Park authorized or ratified
the employment actions that were taken against him. For example, Dr. Underwood alleges that
Dr. Mohler reported to the CEO and President of Roswell Park at all relevant times. ECF No.
10, at ¶ 17. Dr. Underwood also alleges that he complained to the Roswell Park administration
on many occasions regarding the ways in which Dr. Mohler was disrupting his practice. See,
e.g., id. at ¶¶ 116, 170-72, 176, 178-180, 189, 198, 204, 207. On at least one of these occasions,
during a meeting with Roswell Park CEO Dr. Trump, Dr. Underwood specifically complained
27
that Dr. Mohler had been treating him differently on the basis of his race. Id. at ¶ 207. Despite
these complaints, Dr. Underwood alleges that Roswell Park did nothing to rectify the situation
and thereby affirmed the actions taken by Dr. Mohler.
Because the Court finds that Dr.
Underwood has alleged sufficient facts to “nudge[]” his claims against Roswell Park “across the
line from conceivable to plausible,” Twombly, 550 U.S. at 570, Roswell Park’s motion to dismiss
is denied.
D. Section 1981
Dr. Underwood’s Amended Complaint includes a claim for relief under section 1981,
which provides that “[a]ll persons within the jurisdiction of the United States shall have the same
right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons and property as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a). Defendants Roswell Park and Dr. Mohler argue that
Dr. Underwood’s claim for relief under section 1981 should be dismissed pursuant to the
Supreme Court’s ruling in Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989). In Jett, the
Supreme Court held that section 1983 “provides the exclusive federal damages remedy for the
violation of rights guaranteed by § 1981 when the claim is pressed against a state actor.” Id. 10
Dr. Underwood responds to this argument by stating that he “will address this issue in his
proposed Second Amended Complaint by re-pleading the Section 1981 claims against Defendant
Mohler, 11 consistent with the holding in Jett, through Section 1983.” ECF No. 22, at 20.
Because Dr. Underwood has not filed a Second Amended Complaint, the Court interprets this
10
Section 1981 was amended as part of the Civil Rights Act of 1991 to include subsection (c), which provides
that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and
impairment under color of State law.” 42 U.S.C. § 1981(c). The Second Circuit has not decided whether subsection
(c) statutorily overrules Jett and creates a private right of action against state actors under section 1981. See
Anderson v. Conboy, 156 F.3d 167, 169 n.19 (2d Cir. 1998); Howard v. City of N.Y., 602 F. App’x 545, 546 n.1 (2d
Cir. 2015).
11
In response to Roswell Park’s motion to dismiss, Dr. Underwood states that he “adopts [the] arguments and
authorities made in Plaintiff[’]s Response in Opposition to Defendant Mohler’s Motion to Dismiss.” ECF No. 23, at
14.
28
statement to mean that Dr. Underwood no longer wishes to pursue an independent claim for
relief under section 1981, and instead will seek relief under section 1983 for the alleged violation
of his rights under section 1981. Therefore, the motions to dismiss Dr. Underwood’s claim for
relief under section 1981 are granted.
II.
Retaliation
In addition to his discrete discrimination claims, Dr. Underwood seeks relief under Title
VII and the NYSHRL for alleged retaliation he suffered while working at Roswell Park. ECF
No. 10, at 95-98. Dr. Mohler argues that Dr. Underwood fails to state a claim for retaliation
under the NYSHRL. 12 The Court disagrees.
The NYSHRL makes it an unlawful discriminatory practice for an employer to “retaliate
or discriminate against any person because he or she has opposed any practices forbidden under
this article or because he or she has filed a complaint, testified or assisted in any proceeding
under this article.” N.Y. Exec. Law § 296(7). For a retaliation claim under the NYSHRL to
survive a motion to dismiss, the plaintiff “must plausibly allege that: (1) defendants
discriminated—or took an adverse employment action—against him, (2) ‘because’ he has
opposed any unlawful employment practice.” Vega, 801 F.3d at 90. 13
Here, Dr. Underwood alleges that after he filed a charge of racial discrimination with the
EEOC on October 15, 2014, he was retaliated against in several different ways: (1) on November
4, 2014, after Dr. Underwood had returned from his training program at the University of
Rochester with positive performance reviews, Dr. Mohler and Roswell Park forced Dr.
Underwood to take an eight-month leave of absence from working at the hospital; (2) in late
2014, Dr. Mohler removed Dr. Underwood from his position as Associate Director of Outreach
12
Other relevant arguments by Dr. Mohler and Roswell Park are discussed above in the previous section of
this decision.
13
Although the court in Vega provided the pleading standards for retaliation claims under Title VII, the same
standards are used for claims under the NYSHRL. Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678, 681 n.3 (2d
Cir. 2016) (quoting Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 316 n. 2 (2d Cir.1999)).
29
and replaced him with a white physician without any notice or explanation for the reason behind
this change; (3) in June 2015, Roswell Park interfered with Dr. Underwood’s ability to work on
his Community Network Project, a project that could have exposed a pattern of racial
discrimination at Roswell Park towards African American patients, by denying him access to
data that was readily available to his white colleagues; and (4) on July 6, 2015, Dr. Mohler
recommended that Dr. Underwood only be given “supervised privileges” after his leave of
absence.
Dr. Mohler characterizes the refusal to renew Dr. Underwood’s privileges after he
completed his training program at the University of Rochester as merely the continuation of a
decision that was taken in November 2013, well before Dr. Underwood filed his EEOC charge.
ECF No. 15-1, at 12. But Dr. Underwood specifically alleges that when Roswell Park first
refused to renew his privileges, he was told that he would be able to return to the hospital with
independence once he completed his training with satisfactory reviews. ECF No. 10, at ¶ 213.
At this stage of the litigation, 14 where the Court must draw all reasonable inferences in Dr.
Underwood’s favor, the decision to force Dr. Underwood into another leave of absence after he
filed his EEOC charge must be viewed as a separate adverse employment action.
Because Dr. Underwood’s allegations are sufficient to state a claim for retaliation under
the NYSHRL, Dr. Mohler’s motion to dismiss is denied.
III.
Hostile Work Environment
14
Dr. Mohler cites two cases, Gentile v. Potter, 509 F. Supp. 2d 221, 240 (E.D.N.Y. 2007) and Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), in support of his argument that Dr. Underwood has
failed to state a claim for retaliation under the NYSHRL. However, both of those cases involve the application of
the McDonnell Douglas standard of proof in the context of a motion for summary judgment. Here, at the pleadings
stage of the litigation, Dr. Underwood “was not required to plead a prima facie case of discrimination as
contemplated by the McDonnell Douglas framework.” Vega, 801 F.3d at 84.
30
Dr. Mohler and Roswell Park argue that Dr. Underwood fails to state a claim for hostile
work environment. 15 ECF Nos. 15-1, at 9-11; 16-1, at 15-16. The Court disagrees.
Hostile work environment claims derive from the recognition that a prohibition on
workplace discrimination includes not only “economic” or “tangible” discrimination, but also
includes “requiring people to work in a discriminatorily hostile or abusive environment.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). As the Supreme Court explained in Morgan,
“[h]ostile environment claims are different in kind from discrete acts. Their very nature involves
repeated conduct.” Morgan, 536 U.S. at 115. While a discrete discrimination claim arises out of
a specific employment decision that is actionable on its own, hostile work environment claims
“are based on the cumulative effect of individual acts.” Id. 16
To state a claim for a racially hostile work environment, a plaintiff must plead facts that
would tend to show (1) that the complained-of conduct is objectively severe or pervasive, such
that it creates an environment that a reasonable person would find hostile or abusive; (2) that the
plaintiff subjectively perceived the environment to be hostile or abusive; and (3) that the
complained-of conduct created such an environment because of the plaintiff’s race. Goins v.
Bridgeport Hosp., 555 F. App’x 70, 71-72 (2d Cir. 2014) (citing Patane, 508 F.3d at 113). With
respect to the first prong, the Supreme Court in Harris provided the following elucidation:
[W]hether an environment is “hostile” or “abusive” can be determined only by
looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.
The effect on the employee’s
psychological well-being is, of course, relevant to determining whether the
plaintiff actually found the environment abusive. But while psychological harm,
15
Claims of hostile work environment under Title VII, the NYSHRL, and section 1983 are governed by
essentially the same standard, and will therefore be discussed together. See, e.g., Patane, 508 F.3d at 113-15;
Sotomayor, 862 F. Supp. 2d at 260-61.
16
For that reason, hostile work environment claims are treated differently from discrete discrimination claims
for the purpose of calculating the statute of limitations. Id. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile environment may be considered by a court for
the purposes of determining liability.”).
31
like any other relevant factor, may be taken into account, no single factor is
required.
Harris, 510 U.S. at 23.
Here, Dr. Underwood has plausibly alleged that he was subjected to a racially hostile
work environment at Roswell Park.
In particular, Dr. Underwood makes the following
allegations: (1) on several occasions, both in public and private settings and both in the presence
of Dr. Underwood and in the presence of others, Dr. Mohler referred to Dr. Underwood as “an
affirmative action program achievement” and a “token Black”; (2) Dr. Underwood was not given
income credit for acquiring $8 million in NIH grants on behalf of Roswell Park, even though he
was entitled to such credit under the Income Plan; (3) in November 2009, Dr. Mohler reduced
Dr. Underwood’s access to operative time, patient referrals and outpatient office hours; (4)
beginning in November 2009, Dr. Underwood received a lower salary than a white surgeon with
less experience, less peer-reviewed funding, and fewer publications; (5) Dr. Mohler delayed Dr.
Underwood’s promotion to Associate Professor from October 2010 until April 2011; (6) in 2011,
when NIH scheduled a site visit to review the progress on the $8 million grants, Dr. Mohler
refused to allow Dr. Underwood to be present or participate; (7) sometime in March or April
2011, Dr. Mohler instituted a “policy” in which physicians in the Urology Department were
required to make up time spent on vacation or engaging in academic pursuits, but only applied
this policy to Dr. Underwood and not to any of his white colleagues; (8) in September 2011, Dr.
Mohler removed Dr. Underwood as Principal Investigator of the Kidney Database and replaced
him with a white surgeon; (9) Roswell Park falsely accused Dr. Underwood of verbal abuse after
he questioned the basis for his removal from the Kidney Database; (10) in December 2012, Dr.
Mohler further reduced Dr. Underwood’s outpatient office hours and transferred a portion of his
case load to a white surgeon who was new to the Urology Department; (11) also in December
2012, Dr. Mohler moved Dr. Underwood’s office out of the Urology Department to a building
32
located approximately half a mile away, without giving any reasons for this move, and assigned
Dr. Underwood’s previous office to a white surgeon new to the Urology Department; (12) Dr.
Mohler initiated a “peer review” of Dr. Underwood’s performance and accused him of
malpractice, even though several white members of the Urology had worse clinical morbidities
than him; (13) beginning in November 2013, Dr. Mohler refused to renew Dr. Underwood’s staff
privileges, which severely harmed his professional reputation and hindered his ability to make
career advancements; (14) Roswell Park forced Dr. Underwood to participate in an advanced
training course at the University of Rochester from July 2014 through October 2014; (15) after
he completed the training course with satisfactory reviews, Roswell Park still refused to approve
Dr. Underwood’s privileges and forced him to take another eight-month leave of absence from
hospital duties; (16) in late 2014, Dr. Mohler removed Dr. Underwood from his position as
Associate Director of Outreach and replaced him with a white physician without any notice of or
explanation for this change; (17) in June 2015, Roswell Park interfered with Dr. Underwood’s
ability to perform research by denying him access to data that was readily available to his white
colleagues; and (18) on July 6, 2015, Dr. Mohler recommended that Dr. Underwood only be
given “supervised privileges” upon his return to the hospital.
Dr. Mohler and Roswell Park argue that in the context of a hostile work environment
claim, the Court should disregard all allegations that could be classified as discrete acts of
discrimination and should instead focus solely on allegations of insults, slurs, and offensive
comments. ECF No. 15-1, at 9-11; ECF No. 16-1, at 15-16. But while the Court recognizes that
hostile work environment claims “tend to involve personal attacks and harassing comments
directed at the plaintiff,” Parekh v. Swissport Cargo Servs., Inc., No. CV-08-1994, 2009 WL
290465, at *5 (E.D.N.Y. Feb. 5, 2009), the scope of hostile work environment claims need not be
limited to only those types of allegations. Rather, the focus should be on any allegations that
33
could plausibly contribute to the wrong that hostile work environment claims are designed to
remedy; namely, “requiring people to work in a discriminatorily hostile or abusive environment.”
Harris, 510 U.S. at 21.
To disregard such allegations solely because they also could be
actionable on their own as discrete acts of discrimination would run afoul of the principle that
“whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the
circumstances” and “no single factor is required.” Id. at 23 (emphasis added). Drawing all
reasonable inferences in Dr. Underwood’s favor, as the Court must do at this stage of the
litigation, Dr. Underwood has sufficiently alleged that he was subjected to a racially hostile work
environment at Roswell Park. Therefore, the motions to dismiss by Dr. Mohler and Roswell
Park are denied.
IV.
Whistleblower Retaliation
Dr. Underwood alleges whistleblower retaliation in violation of New York Labor Law
sections 740 and 741. ECF No. 10. Specifically, Dr. Underwood alleges that he was subjected
to retaliation after he complained to his superiors at Roswell Park about the integrity of
information in the Prostate Database, the disruption in his practice caused by Dr. Mohler’s
interference with his schedule, and a pattern within the Urology Department of failing to report
complications and patient deaths for peer review. Id.
In their motions to dismiss, Dr. Mohler and Roswell Park argue that many of Dr.
Underwood’s allegations fall outside of the statute of limitations and that he fails to state a claim
under either section. ECF No. 15-1, at 16-22; ECF No. 16-1, at 20-23.
A. Section 740
Section 740, as relevant here, prohibits any employer from taking a retaliatory personnel
action against an employee because the employee “discloses, or threatens to disclose to a
supervisor or to a public body an activity, policy or practice of the employer that is in violation
34
of law . . . which violation creates and presents a substantial and specific danger to the public
health or safety.” N.Y. Lab. Law § 740(2)(a). Claims under section 740 must be commenced
“within one year after the alleged retaliatory personnel action was taken.” N.Y. Lab. Law §
740(4)(a). Because Dr. Underwood filed his original Complaint on July 28, 2015, the relevant
cut-off date for the purpose of his section 740 claim is July 28, 2014. 17
With respect to his complaints regarding the integrity of the Prostate Database and the
disruptions in his clinical practice, Dr. Underwood fails to state a claim for whistleblower
retaliation under section 740. In his Amended Complaint, Dr. Underwood does not plausibly
allege that the management of the Prostate Database or the disruptions in his schedule created “a
substantial and specific danger to the public health or safety.” N.Y. Lab. Law § 740(2)(a). The
repeated assertion that mismanagement of the Prostate Database “could” result in a substantial
and specific danger to public health or safety, see, e.g., ECF No. 10 at ¶¶ 123, 129, 130, 210, is
speculative, conclusory, and not entitled to the assumption of truth in the context of a motion to
dismiss. Iqbal, 556 U.S. at 678. Similarly, Dr. Underwood alleges that disruptions in his
practice were inconvenient for himself and his patients but does not plausibly allege the
existence of a danger to public health or safety that was “substantial and specific.” See, e.g.,
ECF No. 10, at ¶¶ 168-172.
However, Dr. Underwood does state a claim under section 740 with respect to his
complaint that physicians in the Urology Department were failing to report complications and
patient deaths. Presumably, the reason for requiring peer review after surgical complications is
the fact that such a review prevents similar errors and deaths from happening in the future.
Indeed, Dr. Underwood describes in his Amended Complaint an incident in which a patient died
17
Dr. Underwood’s original Complaint, like his Amended Complaint, alleged whistleblower retaliation in
violation of sections 740 and 741. Neither Dr. Mohler nor Roswell Park point to any allegation in the Amended
Complaint that is missing from the original Complaint. See ECF Nos. 15, 16, 24, 25. Accordingly, the Court finds
that the whistleblower retaliation claims in Dr. Underwood’s Amended Complaint relate back to the time of his
original Complaint. Fed. R. Civ. P. 15(c)(1)(B).
35
after a surgery that, “by all medical standards,” should not have been performed. Id. at ¶ 164.
Drawing all reasonable inferences in Dr. Underwood’s favor, the alleged pattern within the
Urology Department of failing to report complications and patient deaths created a substantial
and specific danger to public health. See Webb-Weber v. Cmty. Action for Human Servs., Inc.,
23 N.Y.3d 448, 453 (2014); Rodgers v. Lenox Hill Hosp., 211 A.D.2d 248, 253 (1st Dep’t 1995);
Finkelstein v. Cornell Univ. Med. Coll., 269 A.D.2d 114, 116 (1st Dep’t 2000).
Dr. Underwood has also plausibly alleged a causal connection between his complaints
about the failure to report surgical complications and the adverse employment actions that were
taken against him after July 28, 2014. In 2012, when Dr. Underwood told Roswell Park’s Vice
President of Ethics that he planned to make a formal complaint about how a specific surgery was
handled, the Vice President of Ethics told him that he would personally suffer “ramifications” if
he did so. ECF No. 10, at ¶ 165. Dr. Underwood continued to complain about the failure to
report complications and patient deaths in 2013 and 2014. See id. at ¶¶ 186-89 (May 2013), 19091 (June 2013), 205 (April 2014), 207 (June 2014). In July 2014, Dr. Underwood was allegedly
forced to undergo a four-month training course at the University of Rochester, and when he
returned with positive performance reviews he was forced to take another eight-month leave of
absence from the hospital. Id. at 222-23. Drawing all reasonable inferences in Dr. Underwood’s
favor, these facts are sufficient to plausibly suggest that the adverse employment actions he
suffered after July 28, 2014 were taken because of his repeated complaints about the Urology
Department’s failure to report complications and patient deaths.
B. Section 741
Section 741, New York’s health care whistleblower retaliation statute, protects
employees who perform health care services for certain types of employers. N.Y. Lab. Law §
741(1)(a)-(b). As relevant here, section 741 prohibits employers from taking retaliatory action
36
against an employee because the employee “discloses or threatens to disclose to a supervisor, or
to a public body an activity, policy or practice of the employer or agent that the employee, in
good faith, reasonably believes constitutes improper quality of patient care.” N.Y. Lab. Law §
741(2)(a). The term “improper quality of patient care” is defined to mean “any practice . . .
which violates any law . . . where such violation relates to matters which may present a
substantial and specific danger to public health or safety or a significant threat to the health of a
specific patient.” N.Y. Lab. Law § 741(1)(d). Claims under section 741 must be commenced
“within two years after the alleged retaliatory personnel action was taken.” N.Y. Lab. Law §§
741(4), 740(4)(d). Accordingly, the relevant cut-off date for the purpose of Dr. Underwood’s
section 741 claim is July 28, 2013.
Again, the Court finds that Dr. Underwood states a claim for retaliation with respect to
his complaints about the failure to report complications and patient deaths, but not with respect
to his complaints about mismanagement of the Prostate Database or the disruptions in his
schedule. Although the standard under section 741 is lower than the standard under 740 because
a plaintiff need only allege a good faith, reasonable belief that the employer’s actions constitute
“improper quality of patient care,” the term “improper quality of patient care” is defined to
require a “substantial and specific danger to public health or safety or a significant threat to the
health of a specific patient.” N.Y. Lab. Law § 741; Minogue v. Good Samaritan Hosp., 100
A.D.3d 64, 69-70 (2d Dep’t 2012). In other words, to state a claim under section 741 a plaintiff
must still plausibly allege a good faith, reasonable belief that the employer’s actions actually
created a substantial and specific danger to public health or safety or a significant threat to the
health of a specific patient. With respect to complaints about mismanagement of the Prostate
Database and the disruptions in his schedule, Dr. Underwood’s Amended Complaint falls short
of that standard. See, e.g., ECF No. 10, at ¶ 205 (alleging that “Dr. Underwood repeatedly
37
voiced his concern over the quality of information in the database, which could potentially result
in incorrect research, resulting in substantial and specific danger to the public health or safety”)
(emphasis added).
In sum, the Court finds that Dr. Underwood states a claim for whistleblower retaliation
under New York Labor Law sections 740 and 741. However, such claims must be limited to
alleged retaliation in response to Dr. Underwood’s complaints about the Urology Department’s
failure to report surgical complications and patient deaths. Further, such claims must be limited
to alleged retaliatory actions that were taken within the relevant statutory period.
V.
Breach of Contract
Dr. Mohler and Roswell Park argue that Dr. Underwood fails to state a claim for breach
of contract. The Court agrees.
In Mason v. Cent. Suffolk Hosp., 3 N.Y.3d 343 (2004), the New York Court of Appeals
held that “no action for damages may be based on a violation of medical staff bylaws, unless
clear language in the bylaws creates a right to that relief.” Id. at 346. The Court of Appeals
reasoned that in general, “[i]t is preferable for hospital administrators who decide whether to
grant or deny staff privileges to make those decisions free from the threat of a damages action
against the hospital.” Id. at 348. That being said, the Court of Appeals also acknowledged that
“[a] clearly written contract, granting privileges to a doctor for a fixed period of time, and
agreeing not to withdraw those privileges except for specified cause, will be enforced.” Id. at
348-49.
Here, Dr. Underwood seeks money damages based on the violation of Roswell Park
bylaws during the peer review process that led to his staff privileges being revoked. ECF No. 10,
at ¶¶ 294-314. But although Dr. Underwood alleges that the peer review process violated
38
Roswell Park’s bylaws in several ways, ECF No. 10, at ¶ 311, he does not allege that “clear
language in the bylaws” creates a right to money damages. Mason, 3 N.Y.3d at 346.
Dr. Underwood cites Kaufman v. Columbia Mem’l Hosp., 2 F. Supp. 3d 265, 281
(N.D.N.Y. 2014) in response to Defendants’ motions to dismiss. ECF No. 22, at 26-27. In
Kaufman, the plaintiff showed that his employment agreement with the hospital “explicitly
incorporates the Medical Staff By-Laws by reference.” Kaufman, 2 F. Supp. 3d at 281. Here, by
contrast, Dr. Underwood does not allege that his employment agreement with Roswell Park
explicitly stated that his privileges would only be revoked in accordance with Roswell Park bylaws. See ECF No. 10, at ¶¶ 294-314. Therefore, Dr. Underwood’s allegations are insufficient
to state a claim for breach of contract.
VI.
Health Care Quality Improvement Act
Dr. Mohler and Roswell Park argue that Dr. Underwood’s purported claims under the
HCQIA should be dismissed because the HCQIA does not provide a private right of action. ECF
No. 15-1, at 24; ECF No. 16-1, at 25. In response, Dr. Underwood states that his “proposed
Second Amended Complaint makes [Defendants’] point moot.” ECF No. 22, at 29. Because no
Second Amended Complaint exists on the Court’s docket, and Dr. Underwood has not filed a
motion to amend his Amended Complaint, the Court interprets this statement to mean that Dr.
Underwood no longer wishes to pursue a claim for relief under the HCQIA.
VII.
Claims Against Does 1-50
Dr. Mohler and Roswell Park argue that Dr. Underwood’s claims against “Does 1-50”
should be dismissed.
ECF No. 15-1, at 24-25; ECF No. 16-1, at 2-5.
In response, Dr.
Underwood states that his “proposed Second Amended Complaint makes [Defendants’] point
moot.” ECF No. 22, at 29. Because no Second Amended Complaint exists on the Court’s
docket, and Dr. Underwood has not filed a motion to amend his Amended Complaint, the Court
39
interprets this statement to mean that Dr. Underwood no longer wishes to pursue any claims
against Does 1-50.
VIII.
Punitive Damages Against Roswell Park
Finally, Roswell Park argues that it is immune from punitive damages because it is a
public benefit corporation heavily supported by tax dollars and performing an essential
governmental function. ECF No. 16-1, at 5-8. Dr. Underwood does not contest that Roswell
Park should be treated as a municipality or that it is immune from punitive damages in state law
claims under Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 386 (1987), but
rather asserts—without elaboration—that he may still recover punitive damages against Roswell
Park under federal law. ECF No. 23, at 2. Dr. Underwood’s argument is unavailing because the
federal statutes under which he seeks relief, namely Title VII and section 1983, do not permit the
award of punitive damages against a municipality. Brown v. Baldwin Union Free Sch. Dist., 603
F. Supp. 2d 509, 518-19 (E.D.N.Y. 2009) (citing City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 271 (1981)); see also 42 U.S.C. § 1981a(b)(1).
Therefore, Dr. Underwood is
precluded from recovering punitive damages against Roswell Park.
CONCLUSION
For the reasons stated above, the motions to dismiss filed by Dr. Mohler (ECF No. 15)
and Roswell Park (ECF No. 16) are GRANTED IN PART AND DENIED IN PART.
Specifically, the motions are GRANTED with respect to:
•
Claims against Dr. Mohler under Title VII;
•
Discrete discrimination and retaliation claims against Roswell Park under
Title VII regarding acts that occurred before December 19, 2013;
•
Discrete discrimination and retaliation claims under the NYSHRL regarding
acts that occurred before July 28, 2012;
40
•
Discrete discrimination claims under section 1983 regarding acts that occurred
before July 28, 2012;
•
Claims under section 1983 against Dr. Mohler in his official capacity;
•
Claims seeking independent relief under section 1981;
•
Claims under New York Labor Law § 740 regarding acts of retaliation that
occurred before July 28, 2014;
•
Claims under New York Labor Law § 741 regarding acts of retaliation that
occurred before July 28, 2013;
•
Whistleblower retaliation claims regarding Dr. Underwood’s complaints about
mismanagement of the Prostate Database and disruptions in his clinical
schedule;
•
The breach of contract claim against Dr. Mohler and Roswell Park;
•
Claims seeking relief under the HCQIA;
•
Claims against Does 1-50; and
•
Dr. Underwood’s request for punitive damages against Roswell Park.
The motions are DENIED in all other respects.
IT IS SO ORDERED.
Dated: January 13, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
41
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