Offor v. Mercy Med. Ctr.

DOCTOR CHINWE OFFOR, Plaintiff, v. MERCY MEDICAL CENTER, CATHOLIC HEALTH SERVICES OF LONG ISLAND, DOCTOR SWARNA DEVARAJAN, and DOCTOR JOHN REILLY, Defendants.

No. 15-CV-2219 (SJF)(SIL)

United States District Court, E.D. New York

May 11, 2021

REPORT AND RECOMMENDATION

STEVEN I. LOCKE, UNITED STATES MAGISTRATE JUDGE

By way of Complaint dated April 20, 2015, later modified by an Amended Complaint dated May 15, 2015, and again by a Second Amended Complaint dated June 29, 2015, Doctor Chinwe Offor (“Offor” or “Plaintiff”) commenced this action against Mercy Medical Center (“MMC”) Catholic Health Services of Long Island (“CHSLI”), Doctor Swarna Devarajan (“Devarajan”) and Doctor John P. Reilly (“Reilly, ” and together with MMC, CHSLI and Devarajan, “Defendants”), alleging violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the New York Executive Law § 296; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”); and the federal Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C § 1111 et seq., as well as state law claims for libel, slander and intentional infliction of emotional distress, and seeking a declaratory judgment and injunctive and monetary relief in connection with her claims. See Complaint (“Compl.”), Docket Entry (“DE”) [1]; Amended Complaint (“Am Compl.”), DE [15]; Second Amended Complaint (“SAC”), DE [22-17]. Presently before the Court, on referral from the Honorable Sandra J. Feuerstein for report and recommendation, are: (i) Plaintiff's two motions to strike evidence in Defendants' summary judgment papers as inadmissible expert materials pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) and Federal Rule of Evidence 702, DE [258], [263]; (ii) Plaintiff's motion for summary judgment, DE [283]; and (iii) Defendants' cross-motion for summary judgment, DE [284], pursuant to Fed.R.Civ.P. 56. For the reasons set forth herein, the Court respectfully recommends: (i) denying Plaintiff's motions to strike; (ii) denying Plaintiff's motion for summary judgment; and (iii) granting Defendants' cross-motion for summary judgment.

I. Background

A. Relevant Facts

The following facts are taken from the parties' pleadings, declarations, exhibits and respective Local Rule 56.1 statements. Except where indicated, these facts are not in dispute.^[1]

MMC is a not-for-profit health care facility and a member hospital of CHSLI, a not-for-profit network of healthcare facilities on Long Island. See SAC ¶¶ 2-3; Defendants' Local Rule 56.1 Statement of Undisputed Facts in Support of Their Motion for Summary Judgment (“Def. 56.1”), DE [284-2], ¶ 1. Plaintiff is a resident of New York who was a neonatal physician in MMC's Neonatal Intensive Care Unit (“NICU”) from February 2000 until her termination in August 2014. See SAC ¶¶ 1, 15-19; Material Facts to Which There is No Genuine Issue to be Tried (“Pl. 56.1”), DE [283-17], ¶ 5; Defendants' Objections and Responses to Plaintiff's Material Facts to Which There is No Genuine Issue to be Tried (“Def. Opp. 56.1”), DE [283-80], at 1.^[2]While Plaintiff maintains CHSLI, MMC's parent company, also acted as her employer, Defendants dispute that CHSLI ever employed Offor. See Pl. 56.1 ¶ 5; Def. Opp. 56.1 at 3. Devarajan has been the Chairwoman of the Department of Pediatrics and the Director of Neonatology and Newborn Services at MMC since 1999, and directly supervised Plaintiff during her employment. See Def. 56.1 ¶¶ 4-5. Reilly was the Director of Medicine at MMC from 2007 until 2017, and the Chief Medical Officer at MMC from 2008 until 2017. See Id. ¶ 3.

i. Plaintiff's Request for Vacation Time in December 2012

In 2010, Devarajan established a policy for all NICU physicians, including Plaintiff, under which every request for vacation had to be submitted in writing. See Id. ¶ 9. In 2012, Offor was one of three full-time physicians in MMC's NICU, along with Devarajan and Doctor Niti Rayjada (“Rayjada”), who was scheduled to be out of work for at least 12 weeks for maternity leave starting in December 2012. See Id. ¶¶ 10-11. Accordingly, on July 17, 2012, Devarajan limited the remaining NICU physicians' ability to take vacation between late 2012 and early 2013. See Id. ¶ 12; Plaintiff's Counter Statement of Undisputed Material Facts (“Pl. Opp. 56.1”), DE [285-2], ¶ 13.

According to Defendants, on July 10, 2012, Plaintiff requested time off in December 2012 to attend her niece's wedding, which Devarajan denied, citing the hold on vacations at that time. See Id. ¶ 13; Def. 56.1 ¶¶ 13-15. Plaintiff, in turn, emailed Reilly and MMC's Vice President of Human Resources, Allison Cianciotto (“Cianciotto”), about the request, and met with both on August 1, 2012 and Canciotto alone on September 25, 2012. At this meeting, Canciotto explained to Plaintiff that Devarajan denied her request due to staffing concerns surrounding Rayjada's anticipated maternity leave. See Def. 56.1 ¶¶ 17-20.

ii. Plaintiff's Request for Vacation Time in January and February 2013

In 2012, Plaintiff's daughter was 29 years old, living in Chicago and expecting to give birth in January 2013. See Id. ¶¶ 22, 24-25. Offor mentioned the possibility of taking vacation for her grandchild's birth to Devarajan in June 2012, but did not submit a request for vacation in writing at that time. See Id. ¶¶ 26-27. On September 27, 2012, after receiving the 2013 Neonatology Service Schedule confirming that no vacations would be approved or scheduled until June 2013 due to Rayjada's maternity leave, Plaintiff requested to take vacation time in both February and June 2013, which Devarajan also denied. See Id. ¶¶ 31-33, 35. While Offor maintains her daughter suffered from serious health conditions during and after her pregnancy, and that Plaintiff was aware of them at the time she requested the vacation based on “oral[]” conversations, she did not inform Devarajan of any then-current or anticipated health issues, disabilities or medical needs her daughter had, or any possibility that her daughter would not be able to care for herself after labor, stating on September 28, 2012 only that she “need[ed] the vacation in February [2013] because [her] second daughter [wa]s due to deliver her first baby and she will need [her].” See Id. ¶¶ 37-40, 43; Pl. 56.1 ¶¶ 25, 28; Pl. Opp. 56.1 ¶¶ 26-27, 43, 48, 50.

In November 2012, Offor retained Joel Greenberg, Esq. (“Greenberg”) as her attorney to assist her with obtaining approval for a February 2013 vacation. See Def. 56.1 ¶ 50. Greenberg communicated to Defendants that Plaintiff retained him because she wanted to take vacation to be with her daughter when she gave birth. See Id. ¶ 52. On December 27, 2012, Devarajan approved Plaintiff's request for vacation time in February 2013. See Id. ¶ 55.

iii. 2012 Reports on and Evaluations of Plaintiff's Skills

On August 14, 2012, Doctor Robert Koppel (“Koppel”), then-Director of the Regional Perinatal Center at Cohen Children's Medical Center (“Cohen Children's”), contacted Devarajan regarding Plaintiff's clinical management of a newborn infant transferred from MMC to Cohen Children's, which Plaintiff maintains never occurred. See Id. ¶ 61; Pl. Opp. 56.1 ¶ 62. The next day, Devarajan met with Plaintiff to discuss the issues Koppel raised, and memorialized the meeting in a handwritten note to file, a document Plaintiff asserts was fabricated. See Id. ¶ 63; October 28, 2020 Declaration of Justin A. Guilfoyle, Esq. in Support of Defendants' Motion for Summary Judgment (“Guilfoyle Dec.”), DE [284-1], Exhibit (“Ex.”) X, DE [284-29].

Based on Koppel's concerns, along with an internal alert as to Plaintiff's treatment of the same patient through an electronic incident reporting system (“MIDAS”), MMC conducted an internal review of the patient's case. See Def. 56.1 ¶ 64. The MIDAS report generated as part of MMC's internal review, which Plaintiff also maintains was fabricated, identified educational and performance deficits and inappropriate use of equipment in connection with Plaintiff's treatment of the patient, which Reilly met with Plaintiff to discuss on August 24, 2012. See Id. ¶¶ 65-68; Pl. Opp. 56.1 ¶ 65.

Following its internal review, MMC initiated an external review process of three additional patients Plaintiff treated by three practitioners at institutions unaffiliated with MMC or CHSLI: (1) Cohen Children's; (2) Stony Brook Long Island Children's Hospital (“Stony Brook”); and (3) Morgan Stanley Children's Hospital (“Morgan Stanley”). See Def. 56.1 ¶¶ 69-73. All three reports, which Plaintiff also maintains were fabricated, noted deficiencies in Offor's treatment of patients and recommended the need for further review and discussion as to improving her practices in six areas. See Id. ¶¶ 74-79; Guilfoyle Dec. Exs. AA, DE [284-32], BB, DE [284-33]; Pl. Opp. 56.1 ¶¶ 74-77.

Other MMC personnel raised additional concerns as to Plaintiff's medical care in the NICU. See Def. 56.1 ¶¶ 80-82. In response, Reilly held a NICU department meeting on December 17, 2012 as to certain policies Offor was responsible for abiding by, which Defendants assert Plaintiff continued to fail to comprehend. See Id. ¶¶ 83-86.

iv. MMC Places Plaintiff on a Focused Practitioner Performance Evaluation

Plaintiff met with Reilly, Devarajan and MMC's Director of Risk Management, Rosemarie Povinelli (“Povinelli”), on December 27, 2012, at which time Reilly informed Offor that MMC decided to place her on a three-month Focused Practitioner Performance Evaluation (“FPPE”), a process through which MMC's medical staff evaluates the competence of a practitioner following failures, shortcomings or needs for improvement in connection with the...