Samper v. University of Rochester Strong Memorial Hosp.

• Citation: 528 N.Y.S.2d 958,139 Misc.2d 580
• Parties: , 47 Ed. Law Rep. 284 Frances SAMPER and Igor Rosien, Plaintiffs, v. UNIVERSITY OF ROCHESTER STRONG MEMORIAL HOSPITAL, the Anesthesiology Group of the University of Rochester Strong Memorial Hospital, Ronald A. Gabel, M.D., Frank J. Colgan, M.D., Seymour J. Sandler, M.D., Svend Eldrup-Jourgensen, M.D., Jaimala Thanik, M.D., Pratima Shah, M.D., and Thomas E.J. Gayeski, M.D., Defendants.
• Decision Date: 19 June 1987
• Court: United States State Supreme Court (New York)

Page 958

528 N.Y.S.2d 958

139 Misc.2d 580, 47 Ed. Law Rep. 284

Frances SAMPER and Igor Rosien, Plaintiffs, v. UNIVERSITY OF ROCHESTER STRONG MEMORIAL HOSPITAL, the Anesthesiology Group of the University of Rochester Strong Memorial Hospital, Ronald A. Gabel, M.D., Frank J. Colgan M.D., Seymour J. Sandler, M.D., Svend Eldrup-Jourgensen M.D., Jaimala Thanik, M.D., Pratima Shah, M.D., and Thomas E.J. Gayeski, M.D., Defendants.

Supreme Court, Monroe County.

June 19, 1987.

Emmelyn Logan-Baldwin, Rochester, for plaintiffs.

David L. Hoffberg, Nixon, Hargrave, Devans & Doyle, Rochester, for defendants.

RICHARD C. WESLEY, Justice.

Plaintiff Dr. Samper commenced the instant action or about January 9, 1987 claiming sex discrimination, defamation, intentional infliction of emotional distress, prima facie tort, breach of contract and a violation of due process rights arising out of her residency training at the University of Rochester's Department of Anesthesiology. Defendants have moved for summary judgment on all causes of action.

Discussed herein are the causes of action for sex discrimination under Section 296 of the Human Rights Law (Executive Law art. 15) and the alleged violations of New York State Constitution, Article 6, Section 7 and Section 140-b of the Judiciary Law. ¹

Dr. Samper claims that while a resident in anesthesiology at the University of Rochester, she performed at least as well as all other students in the program and that she received unsatisfactory reviews on academic evaluations only as a result of sex discrimination. The complaint also raises claims that an "evaluation" meeting held by the defendants violated her rights to procedural due process, inasmuch as she had inadequate notice of the meeting and was denied her right to have an attorney present.

The plaintiff's first cause of action is predicated upon violations of Section 296 of New York's Human Rights Law. This section prohibits an employer from discriminating against an employee because of sex or marital status. The plaintiff also alleges a violation of Section 296(7), which prohibits an employer from retaliating against an employee who opposes or reports discriminatory practices of an employer. The Human Rights Law does not statutorily define an employer.

The defendants have argued that Section 6527 of the Education Law and Sections 2805-j and 2805-m 3 of the Public Health Law act to immunize the defendants. The defense characterizes the plaintiffs' complaint as one based on her unsatisfactory review by the Chairman of the Department of Anesthesiology at Strong Memorial Hospital. The referenced sections of the Public Health Law and Education Law do grant immunity from suit to physicians or review committees for evaluations done without malicious intent.

The Public Health Law and Education Law immunize a physician's "evaluation" of another physician; they do not authorize discriminatory treatment that leads to that result. For example, comments made to Dr. Samper about the weakness of the female sex are not a permissible evaluation technique in the context of the plaintiff's anesthesiology training, absent proof that this comment, if true, bore a significant relationship to an anesthesiologist's work. Dr. Samper alleges discrimination by the defendants (1) at the time of the January 25th meeting, (2) in the procedures used by the doctors to arrive at her unsatisfactory evaluation and (3) through additional comments made to her or Dr. Rosien. Dr. Samper alleges that the treatment she received was different from that of other residents, that her work was satisfactory and that she was treated differently because of her sex, marital status and because she had complained of the defendant's acts.

The plaintiffs have framed their complaint in terms of the conduct that led to and included the unfavorable evaluations. The relevant sections of the Education Law and Public Health Law are not blanket authorizations to discriminate against other physicians. The sections were enacted to encourage frank discussion of a physician's performance and/or credentials. See Palmer v. City of Rome, 120 Misc.2d 558, 466 N.Y.S.2d 238 (Sup.Ct., Oneida Co., 1983). They may not be employed to excuse sexual discrimination in the work place. The plaintiffs' complaint as to the first cause of action for summary judgment purposes is not subject to this defense.

The defendants have also asked this Court to dismiss the first cause of action because the defendants are not employers under Section 296 of the Executive Law. The defendants assert that the plaintiffs' claim relates to discrimination, if any, in an educational context--an area not covered by the statute. Cf. N.Y.Executive Law, Sections 296(1-a)(b), (c) (McKinney's 1982)

The definition of an "employer" as utilized in Section 296 of the Executive Law was examined by the Fourth Department in State Division of Human Rights v. Board of Cooperative Education Services [BOCES], 98 A.D.2d 958, 470 N.Y.S.2d 209 (4th Dept.1983). In BOCES, the defendant was found not to be an employer. The Court reasoned that the BOCES was an education institution. The Court noted that the petitioner's "relationship to BOCES ... is educational in nature and lacks the mutually beneficial economic substance which is the touchstone of an employer/employee relationship." Id. at 958, 470 N.Y.S.2d 209.

In State Division of Human Rights v. G.T.E. Corp., 109 A.D.2d 1082, 487 N.Y.S.2d 234 (4th Dept.1985), the court outlined the necessary elements to determine the existence of an employer-employee relationship within the meaning of the Human Rights Law. Those factors are: (1) the selection and engagement of the individual; (2) the payment of salary or wages; (3) the power to dismiss the individual, and (4) the power to control the individual's work. In Villa Maria Institute of Music v. Ross, 54 N.Y.2d 691, 442 N.Y.S.2d 972, 426 N.E.2d 466 (1981) the Court of Appeals noted that the most important factor in determining the employer/employee relationship is the power to control the work of the individual. ²

The defendants did "employ" the plaintiffs. Dr. Samper was selected based on her previous qualifications, paid a wage and had her schedule of hours controlled by those who headed the Department of Anesthesiology. Her hours, as well as the length of her residency were directly controlled by the defendants. The defendant, Dr. Gabel threatened to suspend her if she did not comply with his mandate for a specific meeting. As such, defendant Gabel apparently had the power to dismiss the plaintiff.

However, there remains a difficult and troubling twist to this case. Although the defendants may be employers for purposes of coverage under the statute, there remains a serious question as to whether the plaintiffs have identified any activity by the defendants that can be characterized as discrimination "in compensation, or in terms, conditions or privileges of employment." Executive Law, Section 296(1)(a) (McKinney's, 1982).

The plaintiffs' complaint centers around alleged discriminatory conduct in the evaluation of Dr. Samper's performance in the residency program. In addition, Dr. Samper alleges that Dr. Colgan made discriminatory remarks about her.

The evaluation process in question had no correlation to salary or professional advancement at the hospital. The unsatisfactory rating Dr. Samper received did require her to work (and study) an additional six month period at Strong, however, that was an educational, not an employment requirement.

Federal and State courts have expressed a reluctance to intervene in faculty appointment and tenure decisions by colleges and universities. See Faro v. New York University, 502 F.2d 1229 (2nd Cir.1974); Powell v. Syracuse University, 580 F.2d 1150 (2nd Cir.1978) and Matter of Pace College v. Commission on Human Rights of the City of New York, 38 N.Y.2d 28, 377 N.Y.S.2d 471, 339 N.E.2d 880 (1975). In light of that policy, it would be easy for this Court to dismiss the plaintiffs' claim for discrimination.

However, the residency program was both a job and an educational prerequisite to the career goals of the plaintiffs. It is difficult, if not impossible at this point of the litigation to separate some of the factual allegations into job/education categories. Comments reflecting a discriminatory attitude, coupled with changes in plaintiff Samper's work schedule create a possible factual basis for a conclusion of discrimination on the job. Further discovery will draw a brighter light to bear on the factual contentions of the parties, which may help to resolve this difficult issue. At this juncture, the plaintiffs have made out a case for possible employment discrimination. This conclusion may be different following discovery.

What has not been addressed by the plaintiffs is the absence of any facts in the complaint or related briefs or affidavits directed at any defendants other than Strong Memorial Hospital, the University of Rochester Medical Center and Drs. Gabel and Colgan. As the court ruled in Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) an individual needs to have the power to carry out personnel decisions in order to be considered an employer under the Human Rights Law. Other than the above noted defendants, facts have not been pleaded to demonstrate this type of authority, nor have any other facts been pleaded that create an issue of fact as to the...