Alcena v. Raine

• Decision Date: 10 August 1988
• Docket Number: 88 Civ. 1186 (GLG).
• Citation: 692 F. Supp. 261
• Parties: Valiere ALCENA, Plaintiff, v. Frederick RAINE, Abdol H. Samiy, the New York Hospital Cornell Medical Center, and Cornell University Medical Center, Defendants.
• Court: U.S. District Court — Southern District of New York

692 F. Supp. 261

Valiere ALCENA, Plaintiff, v. Frederick RAINE, Abdol H. Samiy, the New York Hospital Cornell Medical Center, and Cornell University Medical Center, Defendants.

88 Civ. 1186 (GLG).

United States District Court, S.D. New York.

August 10, 1988.

Lawrence J. Glynn, White Plains, N.Y., for plaintiff.

Kelley Drye & Warren, New York City (Eugene T. D'Ablemont, Cynthia A. Epstein, of counsel), for defendants Frederick Raine, Abdol H. Samiy, and The New York Hosp. Cornell Medical Center.

Walter J. Relihan, Jr., Thomas Mead Santoro, Ithaca, N.Y., for defendant Cornell University Medical Center.

OPINION

GOETTEL, District Judge.

Plaintiff, Valiere Alcena, a black, Haitian physician, alleges he was discriminated against in terms of his employment as a fee-for-service medical consultant, 42 U.S.C. §§ 1983, 2000e et seq., for reasons of race and color. Plaintiff names as defendants the New York Hospital Cornell Medical Center, Cornell University Medical Center, Frederick Raine, administrator of The New York Hospital Cornell Medical Center, Westchester Division, and Abdol Samiy, director of the Division of Medicine at The New York Hospital Cornell Medical Center, Westchester Division.¹ On various grounds, the defendants have moved for dismissal or, in the alternative, for summary judgment. Fed.R.Civ.P. 12(b)(6), 56. Because matters outside the complaint were submitted and considered, we treat defendants' motion as one for summary judgment. For the reasons set forth below, the complaint is dismissed as to both the § 1983 and Title VII claims with leave to replead the Title VII claims.

BACKGROUND

Plaintiff, a black, Haitian physician, was employed in 1978 as a fee-for-service internist in the Division of Medicine of The New York Hospital of Manhattan at its Westchester Division in White Plains. The primary facility of The New York Hospital-Cornell Medical Center, as the affiliation between the New York Hospital and the Cornell University Medical College is known, is located in Manhattan. While he was not employed by Cornell University Medical College, he was a voluntary faculty member with the academic title of "Clinical Instructor of Medicine in Psychiatry (courtesy)." In recognition of the fact Alcena held an academic rank at another medical college, Albert Einstein Medical College, Cornell University Medical College granted him an academic title consistent with protocol in medical colleges only as a courtesy.

The Hospital's Westchester Division is a psychiatric hospital with more than 300 beds, and is one of two locations of the Hospital's Division of Psychiatry. The second one, the Payne Whitney Clinic, is in Manhattan. Because the Westchester Division is not located near the medical facilities and staff of the main Hospital in Manhattan, it was necessary to arrange for non-psychiatric specialists to treat the medical problems of the Westchester Division patients. Prior to 1985, the compensation arrangements with the medical doctors included full-time or part-time salaried appointments, as well as fee-for-service. Plaintiff was assigned to work different weekly schedules, including nights, and was paid for the time he worked on a session basis.

In April 1985, plaintiff was informed by defendant Raine, administrator of New York Hospital, Westchester Division, there was to be a reorganization and the fee-for-service positions, including plaintiff's, were to be eliminated. Effective September 1985, the Division of Medicine at the Westchester Division added one full-time internist staff position and eliminated the regular use of all fee-for-service internists. Accordingly, plaintiff and all other fee-for-service physicians were notified that their services were no longer needed on a regular basis. However, plaintiff was allegedly told by defendant Saimy, director of Division of Medicine at the Westchester facility, that he was not being fired, that he could continue to teach several times per month and he would be paid for it, and that the Hospital would contact him when his services were required. However, plaintiff has never been requested to teach. Cmplnt ¶¶ 49, 50.

On July 19, 1985, plaintiff filed a verified complaint with the New York State Division of Human Rights (NYSDHR) and the Equal Employment Opportunity Commission (EEOC) alleging employment discrimination based on race, color and national origin. The EEOC deferred to NYSDHR for the initial investigation. At the time he filed the agency complaint, plaintiff Alcena alleges he was the "only Black in (his) position at the respondent medical center." Epstein Aff., Exh. A. The complaint, which named "Cornell University Medical Center" as the only respondent, contained allegations of discrimination in that 1) plaintiff requested but was denied a promotion to Assistant Professor of Medicine while Caucasian residents who were students of plaintiff eventually were given the status of Assistant Professor of Medicine; 2) a condition of plaintiff's continued employment was regularly scheduled night-shifts without any additional compensation, although one Caucasian doctor was allowed to relinquish his night duties and work days only and two Caucasian physicians were hired and not required to work at night; and, 3) his termination was due to reasons of race and retaliation for having alerted the Hospital to the possibility defendant Samiy fraudulently claimed to be board certified.

On the same day plaintiff filed his administrative complaint, he submitted a letter to NYSDHR requesting two forms of relief in addition to that requested in the complaint; a second request for additional relief was made by letter dated July 31, 1985; and, in a third letter, dated August 23, 1985, plaintiff expressed concern over the alleged failure to reappoint him to the medical staff and maintained it was an additional ground for relief.

Cornell University Medical College responded on September 16, 1985, to the allegations in plaintiff's administrative complaint, and included fourteen documents as exhibits. Further, the Medical College challenged plaintiff's assertion that it was his employer. Subsequently, plaintiff submitted a rebuttal consisting of a letter and six exhibits. Later, plaintiff submitted salary records which had "The New York Hospital-Cornell Medical Center, Westchester Division" imprinted at the top. Approximately 3 weeks later, NYSDHR issued an Order Amending Complaint that added "The New York Hospital-Cornell Medical Center, Westchester Division" as a respondent. The EEOC charge, however, was never amended.

On February 13, 1986, the NYSDHR held a four hour fact-finding meeting, attended by plaintiff, counsel for plaintiff and respondents, and six witnesses including defendants Samiy and Raine. The Medical College was asked to submit numerous additional documents, and a month later 29 additional pages of explanatory materials and documents were submitted. On August 25, 1986, New York Hospital, Westchester Division, submitted its position statement to the NYSDHR in response to allegations made by plaintiff both in his administrative complaint and at the fact-finding meeting. Subsequently, plaintiff submitted a letter in response to the material submitted by New York Hospital. On December 18, 1987, the NYSDHR concluded its investigation and dismissed the administrative complaint in its entirety, no probable cause having been found. Specifically, insofar as respondents "The New York Hospital Cornell Medical Center, Westchester Division (respondent) and Cornell University Medical Center (sic) (as Necessary sic party)" are concerned, "the investigation failed to reveal sufficient facts to credit the allegations contained in the complaint that the complainant was unlawfully discriminated against...." Epstein Aff., Exh. N.

The complainant was not considered for promotion because the respondent's academic administrative regulations do not permit appointments to persons who hold primary appointments at other medical colleges. It should be noted that respondents indicated that they have not promoted a part-time consultant associated with the Department of Medicine in at least five years.... The record also failed to support the complainant's contention that he was compensated at a lower salary rate than his Caucasian co-workers. It should be noted that the complainant's position was not the only one eliminated. Other Caucasian co-workers, similarly situated, were also advised that their positions were eliminated.

Epstein Aff., Exh. N.

On February 19, 1988,² plaintiff filed the instant judicial complaint in which he alleges employment discrimination based on race and color, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1983. Plaintiff asserts 6 "causes of action" and maintains the defendants conspired to deprive him of his constitutional right to employment without racial discrimination. Plaintiff seeks damages, declaratory relief, and attorney's fees against defendants for "their illegal actions, practice, and policies, maintained and conceived in bad faith", Cmplnt. Wherefore ¶ 2. Specifically,

1. Plaintiff alleges he was discriminated against in that in 1980 he was asked by defendant Samiy to submit two letters of recommendation regarding his qualifications to continue in his employment, but none of the other physicians in the Department of Medicine were required to produce similar letters;

2. Plaintiff alleges he was discriminated against in that beginning in 1980, he was told by defendant Samiy continuance of his employment was dependent upon his coverage of night duty without any additional compensation but, subsequently, two Caucasian doctors were hired in 1982 to work nights only and at additional compensation.

3. Plaintiff complains that beginning in 1981 and continuing through 1982 and 1983, he sought to obtain privileges at the Department of Medicine at "Cornell Medical Center in the `Downtown Division', as distinguished from the `Westchester...