Salamon v. Our Lady of Victory Hosp.

Decision Date16 January 2008
Docket NumberDocket No. 06-1707-cv.
Citation514 F.3d 217
PartiesDr. Barbara E. SALAMON, Plaintiff-Appellant, v. 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 Defendant', Mallon Axidrou. P. Davanzo, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Before: SOTOMAYOR and KATZMANN, Circuit Judges; GERTNER, District Judge.*

GERTNER, District Judge:

Plaintiff-appellant Dr. Barbara Salamon ("Salamon") sued defendants-appellees Our Lady of Victory Hospital ("OLV"), four of its doctors, Dr. Michael C. Moore ("Moore"), Dr. Franklin Zeplowitz ("Zeplowitz"), Dr. John F. Reilly ("Reilly"), Dr. Albert J. Diaz-Ordaz ("Diaz-Ordaz"), and its then-Chief Executive Officer, John P. Davanzo ("Davanzo") in the United States District Court for the Western District of New York (Elfvin, J.).1 Salamon claims that the defendants-appellees discriminated against her on account of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. According to Salamon, beginning in May of 1996, Moore sexually harassed her by repeatedly making inappropriate comments and unwanted advances. When she complained, Moore retaliated against her by using his powers as a hospital administrator to give her undeserved negative performance reviews, causing serious damage to her career prospects. The remaining defendants, Salamon alleges, were complicit in Moore's retaliatory conduct, condoning Moore's behavior and assisting him in using the hospital's "quality assurance" process to punish her for spurning—and reporting— Moore's sexual advances. In addition, Salamon claimed that the defendants were liable under Title VII for interfering with her future employment opportunities under Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), and for tortious interference with her business relationships.

The defendants moved for summary judgment, arguing, inter alia, that Salamon was an independent contractor, not an employee, and therefore fell outside the ambit of the antidiscrimination statutes. Sibley, they contended, was not Second Circuit law, and in any case, did not apply to Salamon on the facts at bar. As to the remaining state claim, defendants urged the court to decline to exercise supplemental jurisdiction.

On March 8, 2006, the district court granted summary judgment to all defendants. With respect to Title VII and the NYHRL, the district court's decision was based on its finding that no triable issues of material fact existed regarding Salamon's employment status: Salamon, a physician with hospital staff privileges was, the court concluded, an independent contractor. Therefore, defendants' actions— even if discriminatory and retaliatory as charged—were not regulated by either statute. Further, the court found that the Sibley interference claim was unavailing and, since there were no surviving federal claims, it declined supplemental jurisdiction on the state tortious interference claim. See Order at 3-4. Salamon appeals.2

Because we find that there remains a genuine issue of material fact regarding Salamon's employment status, we hold that, it was error for the district court to grant summary judgment to, the defendants. We VACATE the grant of summary judgment and REMAND to the district court for further proceedings on the issue of Salamon's employment status. We also VACATE the district court's decision to decline supplemental jurisdiction over the state claim of tortious interference with business relations. Finally, we AFFIRM the district court's grant of summary judgment to the defendants with respect to the plaintiffs Sibley claim.

BACKGROUND
I. Facts

On appeal from a grant of summary judgment, we view the facts in the light most favorable to plaintiff Salamon, the non-moving, party. See, e.g., Covington v. City of New York, 171 F.3d 117, 121 (2d Cir.1999).

A. Salamon's Initial Relationship with OLV

Salamon is a board-certified gastroenterologist and internist licensed to practice medicine in New York State. In 1994, OLV approved privileges for Salamon in the "associate staff' category, which was then renamed "provisional staff." Later, she was extended full medical staff privileges. Appellant's Appendix ("App.") at 133.3 Staff privileges at OLV were awarded for two-year terms, but subject to renewal. The reappointment process was controlled by OLV and depended largely upon the recommendations of, among others, three of the defendants: Moore, Chief of OLV's Gastroenterology ("GI") Division; Reilly, Chief of the Medical Department; and Zeplowitz, OLV's Chief of Staff. See App. at 442.

Salamon received the privileges and was subject to the duties of all staff physicians at OLV. 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 because of the equipment's prohibitive cost and immobility. Indeed, Salamon stated that she was "wholly dependent on OLV's instrumentalities to work." App. at 178. Salamon was required to use the services of OLV nursing and support staff in her treatment of patients at OLV. Salamon 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. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). Salamon was allowed to maintain staff privileges at other hospitals, and she did so, although the "vast majority" of her practice was at OLV. Id. 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.

In turn, Salamon submitted to the policies, supervision and management of OLV in a number of ways. Like all doctors at OLV, she was required to comply with Staff Rules and Regulations and Hospital by-laws. In addition, Salamon was obliged to participate in one-hour staff meetings every three months and spend a certain amount of time "on call" for OLV. See App. at 179, 431, 436, 466. During this required on-call time, Salamon was obliged 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.

The most significant mechanism of supervision over Salamon was the OLV "quality assurance program,"4 in which Salamon was required to participate as a condition of her privileges. See App. at 431. Under the quality assurance 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 quality assurance program. 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 Salamon, the quality assurance program included detailed requirements as to when and how her work was to be performed, requirements intended in some cases to maximize profits, not patient care. See, e.g., App. at 156.

B. The Alleged Harassment, Retaliation and Increased Scrutiny

Salamon alleges that her relationship with OLV changed and the level of supervision of her practice intensified after she complained of being repeatedly sexually harassed by Dr. Moore, Chief of the GI Division, According to Salamon:

During my practice at OLV, Moore made a number of completely inappropriate and unwanted remarks to me, including, but not limited to, comments about my clothing, appearance and "attractiveness." In early 1996, Moore's comments became not merely unwanted, but harassing and offensive, and consisted of unwelcome sexual advances that included the statements "Kiss me" and "I love you." Moore, using a sexually suggestive tone and manner, also called me his "favorite gastroenterologist." Additionally, Moore directed offensive behavior and body language toward me. On one occasion, Moore physically cornered me in the GI unit hallway and asked if I was "available" for him on Sunday afternoons. Moore also told me that he had "sexual fantasies" about me. Moore also repeated that he had "sexual fantasies" about me in the presence of Monica Kulik, OLV's GI lab secretary.

App. at 202-03. Kulik told Salamon that Moore had sexually harassed her as well. App. at 210.

After Salamon once again refused Moore's advances in July 1996, her relationship with OLV changed. Administrative scrutiny and intervention into her medical practice markedly increased. Her cases began to be reviewed and criticized at every staff meeting as failing to meet quality standards. App. at 203. She was regularly faulted for her refusal to perform the esophageal dilatations that she judged were not indicated and medically unnecessary. According to Salamon, the level of scrutiny exacted upon her was substantially greater than that given to any other physician in the GI Division. App. at 171. Moore, in...

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