Gomez v. Allegheny Health Services, Inc.
| Decision Date | 15 November 1995 |
| Docket Number | No. 94-1899,94-1899 |
| Parties | 70 Fair Empl.Prac.Cas. (BNA) 141, 67 Empl. Prac. Dec. P 43,791 Fernando GOMEZ, M.D., Appellant, v. ALLEGHENY HEALTH SERVICES, INC., a/k/a/ Allegheny Health Education and Research Foundation; Medical College of Pennsylvania; Department of Veterans Affairs Medical Center; Bernard Sigel, M.D.; Howard A. Zaren, M.D.; Paschal M. Spagna, M.D.; Steven G. Meister, M.D.; Glen Whitman, M.D.; Leslie A. Miller, Esquire, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Richard J. Silverberg (argued), Richard J. Silverberg & Assocs., P.C., Philadelphia, PA, for Appellant.
J. Freedley Hunsicker, Jr. (argued), Nadia Mykytiuk Jannetta, Gregg R. Melinson, Drinker Biddle & Reath, Philadelphia, PA, for Appellees.
Robert J. Gregory, Equal Employment Opportunity Commission, Washington, DC, for Amicus-appellant.
Before: HUTCHINSON *, ROTH, and WEIS, Circuit Judges.
In this appeal, a staff surgeon at a hospital asserts that staff physicians refused to send patients to him because of bias based on his national origin. As a result of the lack of referrals, the hospital did not renew the plaintiff's contract of employment. After a trial, the district court entered judgment as a matter of law in favor of the hospital concluding that the evidence failed to establish impermissible discrimination. We agree and will affirm.
Plaintiff, Dr. Fernando Gomez, M.D., brought suit against the Medical College of Pennsylvania, five physicians on the staff of the College, and two other defendants asserting various causes of action, including claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a), and the Pennsylvania Human Relations Act, 43 Pa.Cons.Stat.Ann. Sec. 951 et seq. (1995). The complaint alleged that plaintiff had been terminated from his services at the hospital because he was of Colombian extraction. Before trial, the district court dismissed the claims against all of the defendants except the College 1 and limited the counts against it to asserted violations of Title VII, the state Human Relations Act, and breach of contract.
The Medical College of Pennsylvania is an institution that combines teaching medical students with providing medical, as well as surgical, services to the community. Members of its faculty also practice medicine in their respective specialties.
Faculty members' salaries cover both their academic and clinical activities. The College uses the proceeds from the charges made for professional services both to defray the compensation and expenses of faculty members as well as to subsidize the costs of the teaching program. Inadequate income from patient treatment can become a serious problem for the academic facility.
During 1987 the College became concerned about the lack of referrals to the Division of Cardiothoracic Surgery. In an effort to increase the number of procedures performed by the unit, the College recruited Dr. Pascal Spagna, M.D., to become Chief of the Cardiothoracic Surgery Division and a member of the permanent surgical staff. His appointment led to improvement in the volume of patients being treated in the division.
In 1988, Dr. Spagna sought help to handle the increasing number of cases being referred to him. He contacted plaintiff who was then on the surgical staff of another institution, to discuss plaintiff joining the staff and faculty at the College. In addition to assistance in the surgery itself, Dr. Spagna was interested in having an associate who could take over post-operative care, a function Dr. Spagna did not particularly enjoy. Apparently at some time before July 1988, Dr. Spagna extended an informal offer to plaintiff.
During the formal recruitment process, the Chairman of the Department of Surgery at the College, Dr. Bernard Sigel, M.D., Dr. Spagna's superior in the hospital and academic hierarchy, interviewed plaintiff. Because the cardiology and cardiothoracic divisions work together so frequently, Dr. Spagna, as a matter of courtesy, invited Dr. Steven Meister, Chief of the Division of Cardiology, to meet with plaintiff. Dr. Meister however, was in the Department of Medicine and did not have any responsibility for hiring surgeons.
At the conclusion of the interview, Dr. Meister sent his appraisal of plaintiff to Dr. Spagna in a letter of July 21, 1988. Dr. Meister emphasized that he would support Dr. Spagna's selection of a partner, whomever it was. However, Dr. Meister expressed reservations about the small number of heart operations and internal mammary grafts [used in coronary artery bypass surgery] that plaintiff had performed during the preceding ten years when he had been employed at a high volume surgical institution. Dr. Meister wrote that another concern was the plaintiff's "presentability."
Dr. Meister then recommended Dr. Haji Shariff, M.D., who had performed well in surgery on the cardiologists' patients. Dr. Meister particularly noted Dr. Shariff's facility with the internal mammary approach. From the post-operative care standpoint, Dr. Shariff had been conscientious and had "earned the cardiology group's respect." The letter continued:
The record does not disclose whether Spagna replied to these comments, but in a letter dated August 26, 1988, he and Dr. Sigel offered plaintiff a position in the Division of Cardiothoracic Surgery. If he accepted, plaintiff would report to the chief of that division and to the Chairman of the Department of Surgery. In addition, the College would appoint plaintiff to the position of associate professor.
The letter from Spagna and Sigel stated the offer was for a "full time, salaried position." It further read:
D. A substantial financial advance is made by the Department of Surgery in funding this position, (i.e., [salary etc.] and as a matter of sound financial policy, the amount so advanced is expected to be returned to the Department of Surgery from income resulting from clinical practice.
Plaintiff began his service at the College on September 12, 1988 as assistant surgeon to Dr. Spagna. Cases were referred by staff and outside cardiologists to the Spagna/Gomez team as the College's permanent cardiothoracic surgeons. Dr. Spagna usually decided whether he or plaintiff would be the primary surgeon, unless the referring physician requested otherwise.
In the period from July 1 to December 31, 1988, which included the two and one-half months when plaintiff worked with Dr. Spagna, eighty-five operations were performed, a larger number than had taken place during the preceding six-month period. In the following six-months, however, the Spagna/Gomez operations dropped from eighty-five to sixty-one. In the next six months, the number fell to fifty.
On February 12, 1989, a physician in the Department of Medicine, Division of Nephrology and Hypertension, wrote to Dr. Sigel as Chairman of the Department of Surgery, complaining about a consultation with plaintiff about a patient. The physician wrote that plaintiff "assumed an arrogant and offensive attitude on the telephone, lecturing and quizzing me as if I were a junior resident." On the back of this letter, Dr. Meister wrote: Dr. Meister finished with a postscript: "I personally don't think it's a great idea for him to speak to referring d[octo]rs or conscious p[atien]ts."
On September 5, 1989, Dr. Meister wrote to Dr. Leonard Ross, Executive Vice Dean of the College, reporting some interpersonal conflicts with plaintiff and describing two recent unfavorable incidents. The first involved Dr. Nelson Wolf's patient who had been operated on the previous day. While making rounds, Dr. Wolf, the attending cardiologist, gave the patient a carotid sinus massage, a treatment that plaintiff later told the patient's family had caused a stroke. Dr. Wolf strongly disputed the plaintiff's cause and effect diagnosis, as did Dr. Meister.
The other incident involved a post-operative patient who had been discharged from the College and, on the same day, was admitted to another hospital with complications. The patient refused to return to the College for further contact with "Dr. Hitler," as he referred to plaintiff. Dr. Meister concluded that he and Dr. Wolf had "separately indicated to Dr. Spagna that we do not want Dr. Gomez involved with our patients--at least while they are conscious."
Dr. Kevin Furey, M.D., a cardiologist not on the staff of the College, testified at trial that he refused to send patients to Dr. Spagna because of poor results in cases, and because on one occasion plaintiff refused to operate on a patient in an emergency situation.
Dr. Roger Marinchak, a staff cardiologist, testified that he, too, had been concerned about Spagna/Gomez surgical outcomes, and for that reason, no longer referred cases to them. Moreover, plaintiff had dealt with Dr. Marinchak as if he were interfering with the patients. Dr. Peter Kowey, another staff cardiologist, also asserted that he had been dissatisfied with the morbidity and mortality results from the Spagna/Gomez team.
In addition, Dr. Kowey had a number of disagreements with the team about proper post-operative treatment of patients. Plaintiff, on the other hand, testified that he believed it was in the best interests of the patients for the surgeon to have the primary responsibility for post-operative care.
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