Doctor with staff privileges may sue Hospital under Title VII

The Court of Appeals ruled that a gastroenterologist with staff privileges at Our Lady of Victory Hospital might be an employee for purposes of suing the Hospital under the employment discrimination laws even though she set her own hours and the Hospital did not pay her salary. The trial court has to resolve whether the Hospital exercised sufficient control over her employment to trigger the protections of Title VII of the Civil Rights Act.

The case is Salamon v. Our Lady of Victory Hospital, decided on January 29, 2008. The Court originally resolved this appeal last fall but withdrew the opinion. Today we receive the final opinion. Read my prior write-up here.

In some ways, as the Court of Appeals noted, Salamon was not under the Hospital's control:

Salamon was generally free to set her own hours and maintain her own patient load, subject to the availability of the endoscopy equipment, which the Hospital controlled, and to an on-call requirement discussed below. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). Salamon was allowed to maintain staff privileges at other hospitals, and she did so, although the “vast majority” of her practice was at OLV. OLV did not pay her a salary, wages, benefits, or any other monetary compensation. She billed patients (or their insurers) directly for her services, while OLV billed them separately for the corresponding use of its facilities.

But she also had to comply with Hospital policies and supervision, had to participate in staff meetings and handle "on-call" duties even if the patients were not her own. Most important, she was subjected to the Hospital's quality assurance department, no small potatoes:

Under the quality assurance program, different hospital practitioners, on a rotating basis, would review procedures that had been conducted during the quarter. Cases flagged as potentially problematic would be discussed at mandatory GI division meetings. OLV also had a peer review process for further examining the practice of doctors whose cases had been flagged through the quality assurance program. Finally, OLV also reported to the National Practitioner’s Data Bank (“NPDB”), a database that contains adverse information about doctors that would be queried when a doctor sought privileges at a hospital. According to Salamon, the quality assurance program included detailed requirements as to when and how her work was to be performed, requirements intended in some cases to maximize profits, not patient care.

So is Salamon an employee or independent contractor? If the former, she can sue for employment discrimination under Title VII. If she's the latter, she can't. The Second Circuit notes that "other courts of appeals have found that hospital peer review programs do not constitute exercises of control over the manner and means of physician practice." But this an issue that courts resolve on a case-by-case basis.

The multi-part test for resolving this issue tilts in Salamon's favor as an employee, at least for purposes of the Hospital's motion to dismiss the case on summary judgment. The Court of Appeals reasoned, "[t]aking Salamon’s allegations as true, OLV exercised substantial control not only over the treatment outcomes of her practice, but over the details and methods of her work. Members of the OLV administration were designated as her supervisors, with the job of “maintain[ing] continuing surveillance of [her] professional performance.” Specifically, Salamon argues that OLV’s application of its quality assurance standards constituted unwarranted and medically unsound interference with her professional practice."

In addition, she alleged that the Hospital sufficiently controlled her performance in mandating performance of certain medical procedures. The Hospital also had control over which medications Salamon had to prescribe, not in the interests of medical judgment but Hospital profit. "In short, whether the methods that the hospital required of Salamon merely reflect professional standards or demonstrate a greater degree of control sufficient to establish an employee-employer relationship is a factual issue that is not resolved by the current record."

Village of Port Chester violates the Voting Rights Act

Judge Robinson has ruled that the Village of Port Chester violates the Voting Rights Act in the way that it elects members to its Board of Trustees. After an evidentiary hearing, the district court ruled that the at-large system for electing the six member board violates the VRA. The Village must now come up with a election plan that complies with the law. The decision is reported at 2008 U.S. Dist. 4914 (S.D.N.Y. Jan. 17, 2008).

The Village does not have to intend to discriminate against minority voters to violate the VRA. The test in these cases looks at the following factors, known as the Gingles test (based on a U.S. Supreme Court decision, Thornburg v. Gingles, 478 U.S. 30 (1986)):

(1) the minority group must be sufficiently large and geographically compact to constitute a majority in a single-member district;(2) the minority group must be politically cohesive and vote as a bloc; and(3) the white majority must vote sufficiently as a bloc to enable it, in the absence of special circumstances, to defeat the minority's preferred candidate.

But it's not enough to win the case if the Gingles factors are met. The court must consider whether, under the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process." As Judge Robinson noted, though, courts around the country have ruled that the municipality will usually lose if the Gingles factors are met.

So why did Port Chester lose the case? First, Hispanics are sufficiently large and geographically compact to constitute a majority in a single-member district. They are also politically cohesive and vote as a bloc. By way of example, experts analyzed 16 Village elections, finding that "in all of the 16 contests . . . Hispanics were cohesive. . . . and in 2001, when the Trustee election included Ruiz, a Hispanic candidate . . . virtually 100 percent of Hispanics who voted in that election cast one of their votes for Ruiz, the Hispanic candidate." Moreover, the white majority votes sufficiently as a bloc to enable it, without special circumstances, to defeat the minority's preferred candidate.

The district court relied on experts for these findings. But experts do not always a dull trial make. Judge Robinson uses restrained but strong language in rejecting the proposed methodology offered by one expert in defending the Village's voting patterns:

Dr. Weber believes that in order for there to be non-Hispanic bloc voting, 60 percent or more of non-Hispanics have to coalesce or vote for a particular candidate. He concedes, however, that his choice of percentage is an arbitrarily assigned number that is "simply a number at which [he] feel[s] comfortable." Dr. Weber put forth no scientific or statistical basis from which this Court could conclude that there is reason to believe that 60 percent is the correct number as opposed to 55 percent or 65 percent or some other number, even if it accepted the concept of a minimum threshold requirement for non-minority bloc voting. On this point, Dr. Weber is out, alone, on a rather thin branch. Not only could he point us to no court in the United States that has accepted his cohesion requirement for non-minority bloc voting, but he also admits that he knows of no other expert in the field who has adopted or agreed with his non-minority cohesion requirement. Therefore, it goes without saying that no court or expert in the field has ever endorsed a 60 percent cohesion requirement for non-minority bloc voting. This Court declines to be the first.

Under the catch-all totality of the circumstances test, Port Chester also loses. According to Judge Robinson, Port Chester's history of racial discrimination at the ballot box, including its failure to provide Spanish interpreters, certainly doesn't help its cause here. One Village official "suggested that Port Chester's representatives in Congress should introduce an amendment to exempt the Village from the requirements of the Voting Rights Act." In addition, the Village's electoral calendar -- holding Village elections in March rather than November -- tends to depress minority voter turnout, and "there is some history of official discrimination in Port Chester that continues to touch the rights of Hispanics to participate in the political process." Equally problematic for the Village, a recent election there was marred by racial appeals. "[T]he fact that such a blatant racial message -- one which several witnesses conceded was racist -- emerged in the midst of the ongoing proceedings in this case is troubling to this Court."

Language deficiencies can extend deadline for Habeas petitions

When Congress revised the rules for Habeas Corpus petitions in 1996, it gave inmates one year from that date to bring their petitions in court. If the inmate blew that deadline, it could be extended (or tolled) for good cause shown. Inability to understand the English language qualifies to extend the statute of limitations, the Court of Appeals ruled on January 25. You can also toll the statute of limitations when the State courts fail to tell the inmate that his case was decided there and that it's time for the Habeas petition in Federal court.

The case is Diaz v. Kelly, actually several cases consolidated as they each raised the same issue. The government argued in this case that language deficiencies cannot toll the statute of limitations because many inmates have problems understanding English. Writing for the Court, Judge Newman disagreed:

We think the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA’s limitations period. For the prisoner who cannot read English, the obstacle is undoubtedly serious, just as it would be for a prisoner speaking only English incarcerated in a non-Englishspeaking country, and can, in some circumstances, justify equitable tolling.

On the other hand, to take advantage of this equitable remedy, "the diligence requirement of equitable tolling imposes on the prisoner a substantial obligation to make all reasonable efforts to obtain assistance to mitigate his language deficiency." Two of the inmates before the Court of Appeals could not meet this test. While they cannot understand English sufficient to prepare their petitions and could not find anyone in the prison to help them, they did not show that they tried to get anyone outside the prison for assistance.

Better news for the other inmate whose case came before the Court of Appeals. As inmates first have to seek relief in the State courts before filing their Habeas petitions in Federal court, the problem is what to do when the State court does not inform the inmate that his case was decided and that it's time to bring the Federal case. The Second Circuit held that a prolonged delay by the State courts that the case was decided is enough to toll or extend the statute of limitations for the Federal Habeas Corpus petition. While the government argued that this inmate had a duty to inquire with the State court as to the status of his case there, the Second Circuit disagreed: "We see no point in obliging a pro se litigant to pester a state court with frequent inquiries as to whether a pending motion has been decided, at least until a substantial period of time has elapsed."

Hey, work is work!

The Bush administration tried to show that an employer in New York was in contempt of court in a case brought under the Fair Labor Standards Act (FSLA), which requires employers to pay their employees a minimum wage and also to pay for overtime. While the employer did continue to violate the FSLA, it was not in contempt of court because it was trying its best to apply unsettled law in this area. So says the Court of Appeals in Chao v. Gotham Registry, decided on January 24.

In resolving "the novel question . . . whether employees must be paid overtime wages for work that their employer has prohibited and does not desire," the Second Circuit held as follows:

1. Even unauthorized overtime work counts under the FSLA. That is, if the employees decide to work overtime, the employer has to pay them overtime rates under the broad interpretation of that statute which, Judge Cardamone explains in typically readable language, Congress enacted during the Great Depression to help the working man and alleviate excessive working hours. Although "Gotham argues it neither benefits from nor controls the nurses' unauthorized overtime and, accordingly, such time does not constitute work," the Circuit court found otherwise, concluding "Whether a nurse is working a morning, afternoon or night shift in emergency care, an operating room, or on a hospital floor, the overtime hours are indistinguishable from the straight-time hours. Such work from the nurses' standpoint is fungible. Work is work, after all. Nurses who work overtime, at the hospitals' request, often continue doing the same kind of work they were doing on their regular shifts."

2. The Court also rejected Gotham's implied argument that overtime work that does not benefit the employer financially doesn't count under FLSA. That position would create untenable results, the Second Circuit reasoned, "an employer would be permitted to avoid the Act whenever the overtime provisions threaten success in achieving Congress' goal of curtailing overtime by bringing its cost above its benefit to the employer."

3. The employer also can't avoid compliance with FLSA by arguing that it only learned after the fact that employees worked overtime. "We have never suggested that an employer's knowledge need arise concurrently with the performance of overtime, for good reason. The Act's overtime provisions apply to work performed off premises, outside of the employer's view and sometimes at odd hours, where an employer's concurrent knowledge of an employee's labor is not the norm." The solution to this dilemma is to simply tell the employees not to work any further overtime. The fact that Gotham is an employment agency that staffs hospitals does not give that employer an excuse to enforce its no-overtime rules.

No exhaustion, no jurisdiction in "service dog" case

The Court of Appeals has made it clear over the years that families suing school districts under the Individuals With Disabilities In Education Act (IDEA) have to comply with administrative exhaustion requirements before proceeding in Court. This means that, before filing the lawsuit, you have to allow the state administrative process to unfold and allow state educational authorities to rule on the claims. This warning was re-emphasized on January 23, in Cave v. East Meadow School District.

In this case, the district afforded the hearing-impaired student special services consistent with his disability, including certain accommodations in the classroom. The district said no, however, when the student also wanted to bring his service dog into school. According to the Court of Appeals,

In December 2006, John, Jr.’s parents asked the high school authorities to allow him to bring his newly acquired service dog, Simba, to school with him every day. Despite the variety of accommodations supplied by the school for John, Jr.’s disability, his parents urged that Simba’s presence was necessary, as Simba would alert John, Jr. to emergency bells, to people calling his name, or to sounds of car engines in the street, and would generally enhance his socialization skills. More important, his parents claim that Simba is for John, Jr. an “independent life tool,” which, like his cochlear implants, is supposed to increase his independence and limit the effects of the hearing impairment.

The school officials denied the Caves’ request on the ground that the presence of the dog would prove disruptive to John, Jr.’s education, since his class schedule and his overall education program would have to be modified to avoid the exposure of allergic students and teachers to the dog.

When the district rejected this accommodation, the Cave family brought suit in Federal court under the Americans With Disabilities Act and the IDEA. Generally, unlike the IDEA, ADA claims against public institutions do not require the plaintiff to proceed in any administrative forum before filing the lawsuit. While the family argued that the ADA claim was distinct from the IDEA claim because the school was discriminating against John Jr. because of his disability, the Court of Appeals concluded that, since the relief sought in this case was available under the IDEA, the ADA and IDEA claims are essentially the same and that the courts have no jurisdiction over the claim because the Caves did not initially comply with the (technical and time-consuming) administrative process.

The Second Circuit observed about 10 years ago that there is no such thing as "interesting question jurisdiction." What this means is that, even the most profound lawsuits cannot be resolved in Federal court if the plaintiff has not complied with certain jurisdictional requirements. Since, in theory, the Cave family could have secured their relief through the state administrative process (thereby obviating any need to file suit in Federal court), the Court has no jurisdiction to resolve this case on the merits, no matter how interesting.

Westchester County continues to violate the Voting Rights Act

In 2005, Westchester County entered into a consent decree with the U.S. Department of Justice in connection with its failure to adhere to the Voting Rights Act and the Help America Vote Act. As summarized by the U.S. District Court, "In particular, the Consent Decree addressed allegations that Westchester County had failed to comply with the provisions of the VRA that mandate language accommodations for non-English speaking citizens. Among other things, the Consent Decree permitted DOJ to monitor elections throughout Westchester County."

The consent decree was extended on December 31, 2007. In an order signed by Judges Barrington Parker, John Koeltl and Kenneth Karas, the court determined:

The record before the Court demonstrates that Westchester County has made notable progress in the years since the Consent Decree was entered. However, while Westchester County has made marked improvements in complying with the provisions of the VRA and HAVA, the Government has successfully met its burden of showing "good cause" for an extension of the Consent Decree, based on demonstrable examples of non-compliance with the VRA and HAVA, and the need to monitor Westchester County's compliance for two full general election cycles. Therefore, the Court grants the Government's request to expend the Consent Decree until December 31, 2008.

The written decision extending the consent decree does not explain how exactly Westchester County has failed to live up to its obligations under the Voting Rights Act. A look at the materials submitted to the Court by the Department of Justice shows that, among other violations, the County used election workers who were not sufficiently trained in assisting Spanish-speaking voters, and officials failed to provide these voters with the proper materials necessary for voting. Some poll workers expressed hostility towards Spanish-speaking voters, openly wondering why they did not learn English. One election worker called an Hispanic family "pains in the ass."

The decision in United States v. Westchester County is reported at 2007 U.S. Dist. LEXIS 95370 (S.D.N.Y. Dec. 31, 2007).

Not all federal laws can give rise to a Section 1983 case

Section 1983 of the United States Code allows civil rights plaintiffs to recover damages for the violation of a Federal right. The question before the Court of Appeals in NextG Networks v. City of New York (decided on January 15) was whether a telecommunications provider could sue the City for allegedly violating a portion of the Telecommunications Act, a Federal law. The answer is no.

This may not be the sexiest issue in the world, but it's vitally important for civil rights lawyers. The question whether certain laws can give rise to a Section 1983 violation remains an unstable area in civil rights law. The answer to that question will determine whether those on the losing end of a dispute with the government can have any remedy in court for their troubles.

As the Second Circuit summarized this case, "Broadly speaking, this case concerns whether the City has impeded NextG’s access to the New York City telecommunications market by unlawfully denying NextG the use of City-owned poles." Section 253 of the Telecommunications Act reads:

No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

While this language benefits the telecommunications companies, it does not confer any rights that may be enforced under Section 1983. Rather, the Court of Appeals said, this provision simply places limits on state and local governments. This is a subtle distinction. The Court explained, "the purpose of Section 253 is to impose some limits on the ability of state and local governments to regulate telecommunications but not to interfere with the right of such governments to impose reasonable charges for the concomitant use of public property." The legislative history behind Section 253 further supports the Court's view that this provision does not confer rights on the telecommunications industry.

This holding may be confusing to those without an intimate relationship with Section 1983. Section 1983 is the mother of all civil rights laws, allowing people to enforce the Constitution and other Federal civil rights in court. Section 1983 offers a wide variety of damages and attorneys fees for the prevailing party. But, as noted above, not all laws can predicate a Section 1983 action. In Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), the Supreme Court interpreted Section 1983 to mean that only “rights, not the broader or vaguer benefits or interests” may be enforced through § 1983. The question of whether a Federal law may predicate a Section 1983 case is determined by examining the intent of Congress. Since Congressional intent is not always clear on this point, the Courts are left with the task of determining whether lawsuits like this can proceed.

Moral of the story: Section 1983 is not the answer to all of our problems.