Kleyman v. Suny Downstate Med. Ctr.

SVETLANA KLEYMAN, M.D., Plaintiff, v. SUNY DOWNSTATE MEDICAL CENTER,KINGS COUNTY HOSPITAL,and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants.

18-CV-3137 (PKC) (ST)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 21, 2020

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Before the Court are three competing motions for summary judgment: the motion of Plaintiff Svetlana Kleyman, M.D., for partial summary judgment against Defendant State University of New York Downstate Medical Center¹ ("SUNY") on her claims for breach of contract and failure to accommodate under the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. §§ 701 et. seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296; Defendant SUNY's motion for summary judgment on all of Plaintiff's claims against it, including her breach of contract claim and her several claims under the Rehabilitation Act and NYSHRL; and the joint motion for summary judgment of Defendants Kings County Hospital ("KCHC") and New York City Health and Hospitals Corporation ("NYCHH") on all of Plaintiff's claims against each, including her Rehabilitation Act and NYSHRL claims, as well as her claim under the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-101 et seq. For the reasons explained below, the Court (1) denies Plaintiff's motion for summary judgment; (2) grants Defendant SUNY's motion for summary judgment as to Plaintiff's claims for breach of contract, disability discrimination, and retaliation, but denies it as to Plaintiff's failure to accommodate claim; and (3) grants in full the summary judgment motion of Defendants KCHC and NYCHH.

BACKGROUND

I. Relevant Facts

A. Plaintiff's Early Residency and Illness

Plaintiff Svetlana Kleyman became a first-year resident in the General Surgery program at SUNY in the fall of 2010. (Defendant SUNY's Rule 56.1 Statement² of Material Facts ("SUNY 56.1"), Dkt. 54, ¶ 1.) While Plaintiff and Defendant SUNY quibble over the quality of Plaintiff's work in her first few years of residency, it is undisputed that Plaintiff's performance through her PGY-4³ year was at least adequate. (Id. ¶¶ 7, 8; Declaration of Svetlana Kleyman, M.D. ("Kleyman Decl."), Dkt. 62, ¶ 2.) Although Plaintiff initially had low scores on the AmericanBoard of Surgery in Training Examination ("ABSITE"), by her PGY-4 year she had raised her scores. (SUNY 56.1, Dkt. 54, ¶ 8.)

In 2013, while on a break during her PGY-4 year, Plaintiff contracted a serious illness that left her paralyzed, such that she was unable to walk. (Id. ¶ 9.) She was forced to take time off from her residency to recuperate, but worked to rehabilitate herself so that she could return. (Id. ¶ 10.)

B. Plaintiff's Attempted Return to Residency and Kleyman I

During her recovery, Plaintiff kept in touch with Dr. Lisa Dresner, the SUNY surgical residency Program Director, and, in 2015, Plaintiff expressed a desire to return to the program in July of that year. (Id. ¶¶ 2, 11-12.) The parties dispute whether there was a space for Plaintiff to re-enter the program. SUNY contends that the Residency Review Committee for Surgery ("RRC") of the Accreditation Council for Graduate Medical Education ("ACGME") determines the number of surgical residents allowed for any residency program, and that, in 2015, Defendant SUNY was allotted eight slots each year of PGY-3 through PGY-5, respectively, all of which were already filled. (Id. ¶¶ 13-15.) Plaintiff disputes this as pretextual, noting, inter alia, that members of the program management made comments about not wanting Plaintiff back and that contemporaneous emails from Dr. Dresner stated that she believed returning Plaintiff would not be "a big issue" in terms of clinical capacity (Declaration of Daniel J. Kaiser ("Kaiser Decl.") Exhibit B, Dkt. 65-2, at SUNY001508), but does not proffer alternative evidence about how residency numbers are determined. Dr. Dresner wrote to Plaintiff on May 21, 2015, informing her that SUNY did not have the clinical capacity to add her as a resident at either the PGY-3 or PGY-4 level. (Declaration of Clement J. Colucci ("Colucci Decl.") Exhibit 4, Dkt. 48-3, at SUNY001519.)

On April 5, 2016, Plaintiff filed suit against Defendant SUNY in this Court seeking return to her surgical residency program in an action entitled Kleyman v. SUNY Downstate MedicalCenter, et al., No. 16-CV-2288 (AMD) (E.D.N.Y.) ("Kleyman I"). (SUNY 56.1, Dkt. 54, ¶ 20; Plaintiff's 56.1 Statement ("Pl.'s 56.1"), Dkt. 64, ¶ 1.) The parties resolved that lawsuit in a settlement agreement filed with the Court on December 22, 2016 (the "Settlement Agreement"). Pursuant to the Settlement Agreement, Plaintiff was permitted to return to the residency program as of June 1, 2017. (See Settlement Agreement, Kaiser Decl. Exhibit C, Dkt. 61-3, at 8.) In connection with its motion for summary judgment in this action, Defendant SUNY claims that it was able to re-admit Plaintiff at that time because it had developed an affiliation with Coney Island Hospital, which had increased its clinical capacity. (SUNY MSJ, Dkt. 55, at 4 (citing Declaration of Lisa Dresner ("Dresner Decl."), Dkt. 49, ¶ 7)); SUNY 56.1, Dkt. 54, ¶ 19.) Plaintiff alleges, however, that Dr. Dresner did not investigate whether SUNY's "clinical capacity" changed between the time she wrote to Dr. Kleyman about returning to the residency program in 2015 and settlement negotiations in Kleyman I. (Kaiser Decl. Exhibit I, Deposition of Lisa Dresner ("Dresner Dep."), Dkt. 61-9, at 46:15-65:12, 87:8-98:21; Defendant SUNY's Second 56.1 Counter-Statement, Dkt. 58, ¶ 2.) Plaintiff re-entered surgical residency at SUNY in January 2017. (SUNY 56.1, Dkt. 54, ¶ 31.)

C. Kleyman I Settlement Agreement

The Settlement Agreement from Kleyman I required Defendant SUNY to provide Plaintiff with a motorized standing wheelchair and a wheelchair-accessible call room. (Id. ¶ 24 (citing Settlement Agreement, Dkt. 61-3, ¶ 13).) It also required SUNY to assign an occupational therapy student ("OT Assistant") from the College of Health Related Professions to assist Plaintiff in carrying out her residency responsibilities. (Id. ¶ 27 (citing Settlement Agreement, Dkt. 61-3, ¶ 18).) Under the agreement, "[i]f any disagreement ar[ose] about the scope or nature of the assistance provided by the occupational therapy student, the parties w[ould] engage in a good faithinteractive process to resolve the disagreement." (Settlement Agreement, Dkt. 61-3, ¶ 18.) The "good faith interactive process" was defined as follows:

If Plaintiff subsequently determines that she requires additional or different accommodations for her disability, she shall notify the Office of Diversity and Inclusion at SUNY Downstate Medical Center in writing. Once notified in writing of Plaintiff's request, SUNY will engage in a good faith interactive process with Plaintiff and, if requested, her attorney and provide any appropriate, necessary, and reasonable accommodations in accordance with SUNY Downstate Medical Center's existing policies and procedures and applicable law.

(Id. ¶ 13.)

D. Plaintiff's Return to Residency

The standing wheelchair provided for by the Settlement Agreement arrived sometime after Plaintiff returned to residency and, with it, Plaintiff began to participate in surgeries, primarily with Drs. Dresner and Alexander Schwartzman. (Id. ¶¶ 33-34.) However, at no point after Plaintiff returned to her residency was she provided an OT Assistant as had been laid out in the Settlement Agreement. (Pl.'s 56.1, Dkt. 64, ¶ 6.) Over the next few months, Plaintiff emailed Dr. Dresner at least once noting that she had not yet been provided an OT Assistant (see Kleyman Decl. Exhibit A, Dkt. 62-1, at ECF⁴ 2-3), and her counsel raised the issue in his correspondence with Defendant SUNY's general counsel (Kaiser Decl. Exhibit G, Dkt. 61-7, at ECF 3). (Plaintiff's 56.1 Statement, Dkt. 64, ¶¶ 7-8.) However, the OT Assistant was never provided.

The parties agree that Plaintiff's performance in the operating room upon her return was adequate. (SUNY 56.1, Dkt. 54, ¶ 34.) Defendant SUNY, however, contends that Plaintiff's clinical performance during this time was "seriously deficient." (Id. ¶ 36.) Specifically, Defendant SUNY claims that Plaintiff was inconsistent in documenting her cases, failed to do or record herpatient examinations, delegated tasks she should have performed, represented she had completed tasks she had not, communicated insufficiently with patients, lacked professionalism with coworkers, and was disruptive during rounds. (Id. ¶¶ 36-37, 42.) Defendant SUNY also found Plaintiff's academic performance deficient, as her ABSITE scores both post-illness and upon return were in the zero percentile. (Id. ¶ 40.) Defendant SUNY further contends that on two cases in May 2017, Plaintiff either failed to appropriately diagnose and/or failed to appropriately escalate serious medical issues with patients who then died. (Id. ¶¶ 38-39.) These issues were raised with Plaintiff by Drs. Dresner and Schwartzman during her semi-annual review on June 6, 2017. (Id. ¶ 43.) Plaintiff disputes the characterization of both her clinical work and her care of the two patients. (See Plaintiff's Counter-Statement to SUNY's 56.1 Statement ("Pl.'s SUNY 56.1"), Dkt. 70, at 19-20 ¶¶ 8-13.)

On August 14, 2017, Plaintiff was informed that she was being suspended from the residency program and referred to the Committee for Physician Health ("CPH") to determine whether there was a medical or psychological cause for her performance issues. (Colucci Decl. Exhibit 13, Dkt. 48-12.) The CPH found no medical or psychological reason that Plaintiff could not do the work of the residency, and Plaintiff returned to the residency program on monitored status in December 2017. (SUNY 56.1, Dkt. 54, ¶¶ 45-46.)

Beginning in January 2018, Plaintiff was assigned to the transplant service with Dr. Devon John. (Id. ¶ 48.) Plain...