Popat v. Levy, 1:15-CV-01052 EAW

• Citation: 328 F.Supp.3d 106
• Decision Date: 17 September 2018
• Docket Number: 1:15-CV-01052 EAW
• Parties: Saurin POPAT, M.D., Plaintiff, v. Elad LEVY, M.D., et al., Defendants.
• Court: U.S. District Court — Western District of New York

328 F.Supp.3d 106

Saurin POPAT, M.D., Plaintiff,

v.Elad LEVY, M.D., et al., Defendants.

1:15-CV-01052 EAW

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

Signed September 17, 2018

Peter John Glennon, The Glennon Law Firm, P.C., Rochester, NY, for Plaintiff.

Colleen K. Mattrey, Smith Sovik Kendrick & Sugnet P.C., George Michael Zimmermann, Office of the New York State Attorney General, Amy L. Hemenway, Anna S.M. McCarthy, Harter, Secrest and Emery LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Saurin Popat, M.D. ("Plaintiff") asserts various claims arising out of his past and present employment relationships against five defendants: (1) Elad Levy, M.D. ("Dr. Levy"); (2) The State University of New York at Buffalo (the "University"); (3) University at Buffalo School of Medicine and Biomedical Sciences (the "Medical School"); (4) Kaleida Health ("Kaleida"); and (5) University at Buffalo Neurosurgery, Inc. ("UBNS") (collectively, "Defendants"). (Dkt. 60 at 3-5). Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. , 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, New York Executive Law §§ 290, et seq. (the "NYSHRL"), the United States Constitution, the New York State Constitution, and New York State common law. (Id. at ¶ 1). He raises six claims: (1) race and national origin discrimination and hostile work environment under Title VII; (2) retaliation under Title VII; (3) discrimination and retaliation under the NYSHRL; (4) discrimination and retaliation under § 1981 ; (5) discrimination and retaliation under § 1983 ; and (6) tortious interference with contract, employment, and prospective economic advantage. (Id. at 13-18).

Presently before the Court are UBNS' and Dr. Levy's motion to dismiss all of Plaintiffs claims, except those arising under § 1981, pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 63); the University and the Medical School's motion to dismiss all of Plaintiff's claims, except those arising under Title VII, pursuant to Rules 12(b)(1) and 12(b)(6) (Dkt. 65); and Kaleida's motion to dismiss all of Plaintiff's claims pursuant to Rule 41(b), and, in the alternative, its motion to dismiss Plaintiff's claims arising under § 1983 and New York common law (Dkt. 67). For the reasons set forth below, UBNS' and Dr. Levy's motion is granted in part and denied in part, the University and the Medical School's motion is granted, and Kaleida's motion is granted in part and denied in part.

BACKGROUND

The following facts are taken from the second amended complaint and assumed to be true for purposes of this motion.

I. Factual Background

The University controls and operates the Medical School and the University at Buffalo Neurosurgery Group ("UBNG"). (Dkt. 60 at ¶ 11). The UBNG is "an academic neurosurgical group comprised of physicians and other healthcare employees who are part of the University's ‘UBMD Physicians Group,’ which boasts more than 500 doctors ... practicing medicine and teaching medical students and residents at [the]... Medical School and in area hospitals, including Kaleida facilities."¹ (Id. ). The UBMD Physicians Group, also known as UBMD, Inc., "provides marketing services to other physician practice groups associated with the University, including [UBNS]." (Id. at ¶ 12). "UBNS is a New York not-for-profit corporation associated with the University, providing academic support and is a clinician care component for the University." (Id. at ¶ 13). Like UBNG, UBNS is part of the UBMD Physicians Group. (Id. at ¶ 15). Kaleida "is a large healthcare provider in Western New York" that "operates several hospitals and surgical facilities." (Id. at ¶ 17). Kaleida's neurosurgeons are all associated with the University, and Kaleida publicly identifies Plaintiff as "a Kaleida Health physician." (Id. ).

With the exclusion of Dr. Levy, Defendants "have one or more agreements with each other defining their relationship and interrelation of operations." (Id. at ¶ 14). These agreements allegedly cover the management of "surgical training ... for University medical students and clinical medical treatment for their joint patients," which includes "billing and expenses." (Id. ). "UBNS never identified itself ... as an entity separate or distinct from the University[,]" and the University frequently "works cooperatively or in a parent relationship to UBNS in investigating [discrimination] complaints." (Id. at ¶¶ 15-16). Dr. Levy is "a Caucasian individual ... employed by the University, UBNS, and Kaleida." (Id. at ¶ 18). He is a University professor, a physician with UBNG and UBNS, Chief of Neurosurgery

at Kaleida, and Co-Director of Kaleida Health Stroke Center and Cerebrovascular surgery. (Id. ).

Plaintiff is of African and Southeast Asian origin and a doctor currently employed in Buffalo, New York, by the Delaware Medical Group, P.C., as its Director of Head and Neck/Skull Base Surgery. (Id. at ¶¶ 9, 32-33). He was previously employed by the University as a faculty member in the Departments of Neurosurgery and Otolaryngology at the Medical School. (Id. at ¶ 34). The University compensated him and had the power to terminate his employment. (Id. at ¶¶ 35-36). He was "also considered an employee of Kaleida" because Kaleida gave him certain privileges and asserted direction and control over his work performance. (Id. at ¶ 37). Plaintiff received patient referrals from doctors employed by the University, UBNS, and Kaleida. (Id. at ¶ 39).

Plaintiff alleges that Defendants should be considered his functional employers under the single integrated employer doctrine, the joint employer doctrine, or the interference liability doctrine. (Id. at ¶ 19). First, Plaintiff alleges that "the University, UBNS, and Kaleida, nominally separate entities, are actually part of a single integrated enterprise." (Id. at ¶ 21). These entities work together "to provide surgical services for medical training purposes," and they "jointly hired [Dr. Levy]" to fulfill this objective and delegated to him "the power and control to hire and fire other doctors and staff." (Id. ). Furthermore, UBNS "is under common ownership and management with the University," and is "organized as a separate not-for-profit corporation" only to comply with regulatory requirements. (Id. at ¶ 22).

Plaintiff points to one surgical training procedure as an example of the integrated activities of the University, UBNS, and Kaleida:

[Dr. Levy] directed the location for the surgery to be [at] Kaleida; [Dr. Levy] had the surgery scheduled at Kaleida; [Dr. Levy] selected the doctors to perform the surgery, including Plaintiff; [Dr. Levy] directed that medical students form [sic] the University and [M]edical [S]chool be present for training via the surgery; [Dr. Levy] directed a specific protocol for the surgery, including what each doctor and staff member and medical student present was or was not to do during the surgery and the order of events that would occur within the surgery; [Dr. Levy] controlled the process for billing for the surgery and how each doctor was to be compensated; and [Dr. Levy] subsequently terminated Plaintiff's University faculty position.

(Id. at ¶ 23).

Alternatively, Plaintiff alleges that if the University, UBNS, and Kaleida are not a single integrated enterprise, then they should be considered his employers under the joint employer doctrine. (Id. at ¶ 24). Specifically, Plaintiff claims that Dr. Levy appointed him to a position in the University where he "was expected to train University medical students" at "Kaleida surgical operation facilities." (Id. at ¶ 25). These trainings occurred while Plaintiff engaged in surgeries alongside UBNS doctors, such as Dr. Levy, and were directed by UBNS and Dr. Levy. (Id. ). Dr. Levy terminated Plaintiff from his position for "allegedly not following [Dr. Levy's] surgery protocol for the operation and for allegedly attempting to reschedule that surgery." (Id. ). Dr. Levy controlled the operation "on behalf of UBNS and/or Kaleida," and "all billings and compensation for the operation had to be submitted and coordinated through UBNS and Kaleida." (Id. ). Finally, Plaintiff also alleges that the "interference liability theory" applies in this case because the University "delegated its responsibility and duty of selecting, hiring, firing, managing[,] and scheduling its faculty members for training and teaching experiences to UBNS." (Id. at ¶ 27).

Plaintiff alleges that the University, UBNS, and Kaleida allowed Dr. Levy "to engage in severe and pervasive discrimination against women and people of color," and "to retaliate against Plaintiff for having complained of these wrongful acts." (Id. at ¶ 40). He also alleges that those defendants "interfered with his employment with the University., Kaleida, and Delaware Medical Group." (Id. ). Plaintiff further alleges that "[Dr. Levy] engaged in severe and pervasive harassment toward Plaintiff due to his race and national origin, and he has otherwise created a hostile work environment for dark-skinned employees." (Id. at ¶ 41).

Plaintiff alleges two incidents in which Dr. Levy made inappropriate comments about race or national origin. First, Dr. Levy has referred to or allowed other individuals "to refer to UBNS as ‘BUNS,’ an acronym for ‘Brown University Neurosurgery’ because of the prevalence of physicians of color in that department." (Id. at ¶ 42). Second, on July 22, 2014, Dr. Levy "stated that he felt like he was at a ‘UPS convention’ " during an operation in which Plaintiff, Dr. Levy, and others participated. (Id. at ¶¶ 43-45). Plaintiff further alleged:

[Dr. Levy] was asked to repeat himself and he did so by stating, "A UPS convention. Do you know what the UPS slogan is?" He specifically turned to Plaintiff and directly asked, "Do you know?" to which Plaintiff replied that he did not. Next, [Dr. Levy] stated, "What

...