Nieto et al. v. Kapoor

• Decision Date: 31 October 2001
• Docket Number: No. 00-2121,00-2121
• Citation: Nieto et al. v. Kapoor, 268 F.3d 1208 (10th Cir. 2001)
• Parties: (10th Cir. 2001) ANNA NIETO, BETTY DELOSANTOS, PATRICK SANCHEZ, SALLY NETSCH, PHYLLIS DEBAUN, and MARY GONZALES, Plaintiffs-Appellees, v. QUADRAT KAPOOR, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1208

268 F.3d 1208 (10th Cir. 2001)

ANNA NIETO, BETTY DELOSANTOS, PATRICK SANCHEZ, SALLY NETSCH, PHYLLIS DEBAUN, and MARY GONZALES, Plaintiffs-Appellees, v. QUADRAT KAPOOR, Defendant-Appellant.

No. 00-2121

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

Oct. 31, 2001

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-96-1225-MV) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Mark Jarmie (Rosario Dyana Vega with him on the briefs) of Sharp & Jarmie, P.A., Albuquerque, New Mexico, for Defendant-Appellant.

Tandy Hunt of Tandy Hunt, P.C., Roswell, New Mexico (Randy Clark of Randy K. Clark, P.C., Roswell, New Mexico; and Kathryn Hammel of Cates & Hammel, P.C., Albuquerque, New Mexico, with him on the brief), for Plaintiffs-Appellees.

Before SEYMOUR, HOLLOWAY and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Anna Nieto,¹ Betty DeLosSantos, Patrick Sanchez, Sally Netsch, Phyllis DeBaun, and Mary Gonzales brought this action under 42 U.S.C. 1983 against Dr. Quadrat Kapoor, the Eastern New Mexico Medical Center ("ENMMC"), and a number of ENMMC supervisors. Plaintiffs asserted the denial of their Fourteenth Amendment right to equal protection of the laws, violation of their First Amendment right to free expression by retaliation for protected speech, and a tort claim for intentional infliction of emotional distress. All defendants but Dr. Kapoor settled with plaintiffs and were dismissed from the case. After a bench trial, the district court awarded damages against Dr. Kapoor and in favor of various plaintiffs on various claims in a total amount of $3,750,000. Dr. Kapoor appeals, and we affirm.

I

Dr. Kapoor was the Medical Director of the Radiation Oncology Department at ENMMC in Roswell, New Mexico. Plaintiffs were employees of the ENMMC in Dr. Kapoor's department. The ENMMC was owned by Chaves County, New Mexico, and operated pursuant to and under the New Mexico Hospital Funding Act for governmental hospitals. The hospital utilized its governmental entity status to avoid paying jury fees in civil litigation and to invoke the benefits and protections of the New Mexico Tort Claims Act, N.M. Stat. Ann. 41-4-1, et seq (1996 repl.). As a governmental entity, ENMMC was regulated by and operated pursuant to the New Mexico Open Meetings Act. The members of the ENMMC Board of Trustees were appointed by the Chaves County Board of Commissioners.

Dr. Kapoor was not an employee of ENMMC, but worked instead under a contractual agreement with the hospital. The contract granted Dr. Kapoor professional privileges, leased office space, and maintenance of all his patient files.² Dr. Kapoor and ENMMC equally split all fees for patient care. In return, Dr. Kapoor provided medical care for patients of the hospital, oversaw hospital employees engaged in patient care, and conducted training for employees. Under the policies and procedures of the hospital, he was responsible for making decisions concerning diagnosis and treatment therapy, ordering necessary treatments for patients, informing Radiation Oncology staff of new developments in treatment and updating their knowledge of radiation treatment protocols, establishing goals of treatment for patients and informing staff personnel of these goals and educating the medical staff in cancer patient care, including the use of medical equipment. Dr. Kapoor agreed to abide by ENMMC's medical staff bylaws, rules and regulations. Although he did not have actual authority to hire, fire, or discipline Radiation Oncology employees, Dr. Kapoor influenced staffing decisions such as interviewing and evaluating potential employees, discussing with the Administrative Director problems with employees and making recommendations for staffing patterns.³

In his position as Medical Director of the Radiation Oncology department, Dr. Kapoor had regular contact with each of the plaintiffs, overseeing their work and interacting with them in hallways, offices, patient waiting rooms, and examination rooms. These interactions took place one-on-one, in staff meetings, and in the presence of patients, fellow employees, and supervisors.

Dr. Kapoor's actions and statements of a racially and sexually harassing nature are too many to detail in this opinion. A summary will suffice to give a sense of his conduct. Dr. Kapoor made many derogatory comments about Latino people to hospital employees. The record demonstrates that at on at least thirteen occasions, Dr. Kapoor specifically referred to Mexicans as "stupid," "lazy," or both. For example, on one occasion Dr. Kapoor yelled at Ms. DeLosSantos, "I'm going to have to fire you. You are so stupid. You don't even know where you put this patient in. . . . You're just like all the other Mexicans around here, lazy and stupid, always wanting to take siestas." App., vol. 5, at 1192. In many cases, these comments were made directly to a plaintiff about the plaintiff personally. In others, Dr. Kapoor made the comments about one Latino employee in the presence of another (sometimes Latino) employee. On at least one occasion, Dr. Kapoor referred to Mexicans as "wetbacks," and spoke at least twice of his desire to exploit Mexican labor because it was "cheap." For example, Dr. Kapoor said to Mr. Sanchez that they should get together, start a farm, hire "a bunch of wetbacks," pay them two or three dollars per hour, and make a lot of money. App., vol. 3, at 908. In the presence of Ms. Gonzales, Dr. Kapoor told a white patient that her daughter had degraded herself and her family by marrying a Latino man.

Dr. Kapoor assigned employees to work tasks based on their race, preventing or discouraging Latino employees from treating white or "VIP" patients. Dr. Kapoor told Ms. DeLosSantos not to have contact with one patient because the patient was "not of her kind." Id. at 1196. He assigned Ms. Netsch, a white nurse who is a plaintiff in this action, to care for patients who were white because, he said, they were not Ms. DeLosSantos' "kind." App., vol. 1, at 409.

Dr. Kapoor also offered different levels of treatment to hospital patients based on their race. At times he refused to treat Latino or African-American patients. At other times, he gave them less attention and care than white patients. Ms. Netsch observed that Dr. Kapoor would physically touch white patients, would touch Latino patients only when wearing gloves, and would not touch African-American patients at all. Id. at 405.

Dr. Kapoor had no such aversion to physically touching his Latino staff members. He regularly pushed and pulled employees down the hall and grabbed things from their hands. He pointed fingers in their faces as he yelled at them. He also threw such things as pencils, medical charts, and records at them. In the most disturbing example, the Doctor threw a three-inch thick, hardback copy of the Physician's Desk Reference at Ms. Gonzales, hitting her in the chest. Testimony showed that these and other racially-based incidents were humiliating and degrading.

Dr. Kapoor's demonstrated enmity for Latinos and African-Americans was matched by his feelings about women, both those under his supervision and those under his care. He repeatedly described women as being "whiny" and "overly sensitive" or "stupid." He made numerous comments characterizing women as greedy or weak. He said to Ms. Netsch, "why a man would marry a woman was, number one, just to be their lover when they are young, to give them children in their middle ages, and then just to take care of them as they got older." Id. at 407. He made similarly sexist comments to and about female patients. He told Mr. Sanchez that it was a breast cancer patient's own fault that her husband was being unfaithful to her because she was weak and should be home with her family rather than working in a store.

Dr. Kapoor assigned female employees certain tasks and prevented them from performing others because of their gender. For instance, he directed Ms. DeLosSantos to replace paper in the photocopier and clean the nurse's station. He did not assign such tasks to male employees. When treating patients or performing simulations, Dr. Kapoor requested assistance from male employees with significantly less experience in radiation therapy rather than having well-qualified female employees perform such tasks. He similarly preferred male employees over female employees in the provision of training.

When female employees asked questions or attempted to point out problems in patient care, Dr. Kapoor would often yell at them or ignore them altogether, sometimes accepting from male employees the very information female employees had just attempted to offer him. He regularly pulled and pushed female employees. On at least one occasion he slapped Ms. DeBaun's hands away from an x-ray she was trying to turn the correct way. He also threw objects at female employees. In addition to the Physician's Desk Reference mentioned above, Dr. Kapoor threw x-rays, patient charts, and files.

Dr. Kapoor treated female patients differently than male patients, offering them less privacy, time, and respect. Most outrageous were incidents where Dr. Kapoor engaged in behavior that degraded female breast cancer patients. He pointed to one patient's post-cancer, reconstructed breasts and said she should be home sexually pleasing her husband. On more than one occasion, Dr. Kapoor was observed unnecessarily exposing women's breasts to male and female hospital staff, physically touching (and on one occasion tweaking) their nipples with no medically-based justification, then calling male employees into the room to observe the consequent reaction. His treatment caused patients to cry.

Dr. Kapoor's racist and sexist behavior interfered with staff members' ability to perform their duties at the hospital, including preventing them from providing care to patients. He excluded certain employees from interacting with some patients,...