                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-1995

Gomez v Allegheny Health
Precedential or Non-Precedential:

Docket 94-1899




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Gomez v Allegheny Health" (1995). 1995 Decisions. Paper 291.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/291


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                             No. 94-1899
                             ____________

                      FERNANDO GOMEZ, M.D.,

                                            Appellant
                                  v.

          ALLEGHENY HEALTH SERVICES, INC., a/k/a/ ALLEGHENY
          HEALTH EDUCATION AND RESEARCH FOUNDATION; MEDICAL
          COLLEGE OF PENNSYLVANIA; DEPARTMENT OF VETERANS AFFAIRS
          MEDICAL CENTER, BERNARD SIGEL, M.D.; HOWARD A. ZAREN,
          M.D.; PASCHAL M. SPAGNA, M.D.; STEVEN G. MEISTER, M.D.;
          GLEN WHITMAN, M.D.; LESLIE A MILLER, ESQUIRE

                                            Appellees
                             ____________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                     D.C. Civ. No. 92-5048
                          ____________

                         Argued June 29, 1995

      Before:   HUTCHINSON*, ROTH, and WEIS, Circuit Judges

                    Filed November 15, 1995
                           ____________


Richard J. Silverberg, Esquire (ARGUED)
Richard J. Silverberg & Assocs., P.C.
3700 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793

Attorney for Appellant



___________________________________

* The Honorable William D. Hutchinson participated in the oral
argument and decision in this case, but died before he could join
or concur in this Opinion.


                                  1
2
J. Freedley Hunsicker, Jr., Esquire (ARGUED)
Nadia Mykytiuk Jannetta, Esquire
Gregg R. Melinson, Esquire
Drinker Biddle & Reath
1100 PNB Building
1345 Chestnut Street
Philadelphia, PA 19107-3496

Attorneys for Appellees


Robert J. Gregory, Esquire
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC    20507

Attorney for Amicus-appellant


                             ____________

                         OPINION OF THE COURT
                             ____________




WEIS, Circuit Judge.

          In this appeal, a staff surgeon at a hospital asserts

that staff physicians refused to send patients to him because of

bias based on his national origin.    As a result of the lack of

referrals, the hospital did not renew the plaintiff's contract of

employment.   After a trial, the district court entered judgment

as a matter of law in favor of the hospital concluding that the

evidence failed to establish impermissible discrimination.    We

agree and will affirm.

          Plaintiff, Dr. Fernando Gomez, M.D., brought suit

against the Medical College of Pennsylvania, five physicians on

the staff of the College, and two other defendants asserting

various causes of action, including claims under Title VII of the


                                  3
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and the

Pennsylvania Human Relations Act, 4 Pa. Cons. Stat. Ann. § 951 et

seq. (1995).   The complaint alleged that plaintiff had been

terminated from his services at the hospital because he was of

Colombian extraction.    Before trial, the district court dismissed

the claims against all of the defendants except the College1 and

limited the counts against it to asserted violations of Title

VII, the state Human Relations Act, and breach of contract.

          The Medical College of Pennsylvania is an institution

that combines teaching medical students with providing medical,

as well as surgical, services to the community.   Members of its

faculty also practice medicine in their respective specialties.

          Faculty members' salaries cover both their academic and

clinical activities.    The College uses the proceeds from the

charges made for professional services both to defray the

compensation and expenses of faculty members as well as to

subsidize the costs of the teaching program.   Inadequate income

from patient treatment can become a serious problem for the

academic facility.

          During 1987 the College became concerned about the lack

of referrals to the Division of Cardiothoracic Surgery.   In an

effort to increase the number of procedures performed by the

unit, the College recruited Dr. Pascal Spagna, M.D., to become

Chief of the Cardiothoracic Surgery Division and a member of the

1
 Both of the parties failed to advise the court of the status of
the various defendants, requiring an extensive review of the
district court's record to determine whether appellate
jurisdiction existed.


                                 4
permanent surgical staff.   His appointment led to improvement in

the volume of patients being treated in the division.

           In 1988, Dr. Spagna sought help to handle the

increasing number of cases being referred to him.    He contacted

plaintiff who was then on the surgical staff of another

institution, to discuss plaintiff joining the staff and faculty

at the College.   In addition to assistance in the surgery itself,

Dr. Spagna was interested in having an associate who could take

over post-operative care, a function Dr. Spagna did not

particularly enjoy.   Apparently at some time before July 1988,

Dr. Spagna extended an informal offer to plaintiff.

           During the formal recruitment process, the Chairman of

the Department of Surgery at the College, Dr. Bernard Sigel,

M.D., Dr. Spagna's superior in the hospital and academic

hierarchy, interviewed plaintiff.   Because the cardiology and

cardiothoracic divisions work together so frequently, Dr. Spagna,

as a matter of courtesy, invited Dr. Steven Meister, Chief of the

Division of Cardiology, to meet with plaintiff.     Dr. Meister,

however, was in the Department of Medicine and did not have any

responsibility for hiring surgeons.

           At the conclusion of the interview, Dr. Meister sent

his appraisal of plaintiff to Dr. Spagna in a letter of July 21,

1988.   Dr. Meister emphasized that he would support Dr. Spagna's

selection of a partner, whomever it was.   However, Dr. Meister

expressed reservations about the small number of heart operations

and internal mammary grafts [used in coronary artery bypass

surgery] that plaintiff had performed during the preceding ten


                                5
years when he had been employed at a high volume surgical

institution.    Dr. Meister wrote that another concern was the

plaintiff's "presentability."    "He is a foreigner and both speaks

and looks it. . . . I have some concerns that he may not be the

guy who should walk into a patient's room first and discuss an

operation, nor am I entirely comfortable that he is the man to be

communicating with referring doctors after the surgery."

          Dr. Meister then recommended Dr. Haji Shariff, M.D.,

who had performed well in surgery on the cardiologists' patients.

Dr. Meister particularly noted Dr. Shariff's facility with the

internal mammary approach.   From the post-operative care

standpoint, Dr. Shariff had been conscientious and had "earned

the cardiology group's respect."     The letter continued:   "From

the `presentability' standpoint, Haji is also a foreigner, but

speaks and acts very American.   In this respect he is very much

ahead of Gomez."

          The record does not disclose whether Spagna replied to

these comments, but in a letter dated August 26, 1988, he and Dr.

Sigel offered plaintiff a position in the Division of

Cardiothoracic Surgery.   If he accepted, plaintiff would report

to the chief of that division and to the Chairman of the

Department of Surgery.    In addition, the College would appoint

plaintiff to the position of associate professor.

          The letter from Spagna and Sigel stated the offer was

for a "full time, salaried position."     It further read:

          "D.   A substantial financial advance is made by the

          Department of Surgery in funding this position, (i.e.,


                                 6
            [salary etc.]) and as a matter of sound financial

            policy, the amount so advanced is expected to be

            returned to the Department of Surgery from income

            resulting from clinical practice."

            Plaintiff began his service at the College on September

12, 1988 as assistant surgeon to Dr. Spagna.     Cases were referred

by staff and outside cardiologists to the Spagna/Gomez team as

the College's permanent cardiothoracic surgeons.    Dr. Spagna

usually decided whether he or plaintiff would be the primary

surgeon, unless the referring physician requested otherwise.

            In the period from July 1 to December 31, 1988, which

included the two and one-half months when plaintiff worked with

Dr. Spagna, eighty-five operations were performed, a larger

number than had taken place during the preceding six-month

period.   In the following six-months, however, the Spagna/Gomez

operations dropped from eighty-five to sixty-one.    In the next

six months, the number fell to fifty.

            On February 12, 1989, a physician in the Department of

Medicine, Division of Nephrology and Hypertension, wrote to Dr.

Sigel as Chairman of the Department of Surgery, complaining about

a consultation with plaintiff about a patient.    The physician

wrote that plaintiff "assumed an arrogant and offensive attitude

on the telephone, lecturing and quizzing me as if I were a junior

resident."    On the back of this letter, Dr. Meister wrote:     "Pat

[Spagna]:    This is, as you know, the latest of several

complaints.    I think you need to think about this long and hard."

Dr. Meister finished with a postscript:    "I personally don't


                                 7
think it's a great idea for him to speak to referring d[octo]rs

or conscious p[atien]ts."

          On September 5, 1989, Dr. Meister wrote to Dr. Leonard

Ross, Executive Vice Dean of the College, reporting some

interpersonal conflicts with plaintiff and describing two recent

unfavorable incidents.   The first involved Dr. Nelson Wolf's

patient who had been operated on the previous day.   While making

rounds, Dr. Wolf, the attending cardiologist, gave the patient a

carotid sinus massage, a treatment that plaintiff later told the

patient's family had caused a stroke.   Dr. Wolf strongly disputed

the plaintiff's cause and effect diagnosis, as did Dr. Meister.

          The other incident involved a post-operative patient

who had been discharged from the College and, on the same day,

was admitted to another hospital with complications.   The patient

refused to return to the College for further contact with "Dr.

Hitler," as he referred to plaintiff.   Dr. Meister concluded that

he and Dr. Wolf had "separately indicated to Dr. Spagna that we

do not want Dr. Gomez involved with our patients -- at least

while they are conscious."

          Dr. Kevin Furey, M.D., a cardiologist not on the staff

of the College, testified at trial that he refused to send

patients to Dr. Spagna because of poor results in cases, and

because on one occasion plaintiff refused to operate on a patient

in an emergency situation.

          Dr. Roger Marinchak, a staff cardiologist, testified

that he, too, had been concerned about Spagna/Gomez surgical

outcomes, and for that reason, no longer referred cases to them.


                                8
Moreover, plaintiff had dealt with Dr. Marinchak as if he were

interfering with the patients.   Dr. Peter Kowey, another staff

cardiologist, also asserted that he had been dissatisfied with

the morbidity and mortality results from the Spagna/Gomez team.

           In addition, Dr. Kowey had a number of disagreements

with the team about proper post-operative treatment of patients.

Plaintiff, on the other hand, testified that he believed it was

in the best interests of the patients for the surgeon to have the

primary responsibility for post-operative care.

           In September 1989, Dr. Sigel and Dr. Spagna both

prepared glowing reviews of the plaintiff's professional

competency and patient care.   Dr. Sariel Ablaza, who also

specialized in cardiothoracic surgery, testified that plaintiff

was a competent "no nonsense" surgeon who believed that he, and

not the cardiologist, should provide post-operative care for the

patient.   Dr. Ablaza also commented favorably on the plaintiff's

presentations to residents at the College, saying that he was

"very serious and is all business."

           Plaintiff testified that in addition to the patients

assigned to the Spagna/Gomez team, he took all cases coming from

the trauma unit, approximately ten per year.   At the beginning of

his tenure, plaintiff and Dr. Spagna would alternate being the

primary surgeon on other cases referred to the team.   Later, Dr.

Spagna said that he had been instructed by the referring

physicians to do the surgery himself.   Dr. Spagna told plaintiff

that he hoped the situation would change.   However, it did not.




                                 9
            Dean Ross was advised of the conflict between the

Spagna/Gomez team and the cardiologists.    Ross met with the

Chairmen of the Departments of Surgery and Medicine, as well as

Drs. Spagna and Meister in an unsuccessful attempt to resolve the

problem.    Dean Ross testified that the cardiologists felt "in all

due professional conscience," that they could not refer cases to

the Spagna/Gomez team because of mortality and morbidity results

as well as poor communication.    He also had been told by Dr.

Meister that plaintiff had difficulty communicating and would

become frustrated and speak very sharply to patients and their

families.

            Dr. Sigel left the position as Chairman of the

Department of Surgery in October 1989 and was succeeded by Dr.

Howard Zaren, M.D.   Dean Ross told Dr. Zaren that he needed to

strengthen the divisions that were weak in surgery.    As a

consequence, Dr. Zaren recruited new chiefs for neurosurgery,

plastic surgery, and in March 1990, contacted Dr. Glen Whitman, a

highly qualified individual, as a prospective chief for the

Cardiothoracic Surgery Division.

            During negotiations in the months following, Dr.

Whitman made it clear that he would be unwilling to accept the

position if it meant assuming financial responsibility for the

Spagna/Gomez team.   Dr. Whitman had not recruited them and wished

to build his own unit.

            At this juncture, the College was in a very difficult

financial condition, and had just been acquired by Allegheny

General Hospital of Pittsburgh.    Dean Ross and Dr. Zaren decided


                                  10
plaintiff had to be discharged, and that Dr. Whitman would take

over as Chief of the Cardiothoracic Surgery Division following a

six-month probationary period.   Dr. Spagna agreed to the

realignment and also accepted a fifty percent reduction in his

compensation.   He died unexpectedly in 1992.

           In a June 26, 1990 meeting, Dr. Zaren and Dr. Spagna

told plaintiff he was "going to be fired from the hospital after

December 30 of 1990."   On the following day, plaintiff received a

formal letter renewing his tenure for only six months.

           After plaintiff requested a reason for his termination,

Dr. Zaren wrote a letter stating that "because you have generated

few, if any, new patient referrals to the Division of

Cardiothoracic Surgery, it is not economically feasible for the

Department to continue to exhaust its limited resources to employ

you."   Dr. Zaren did, however, recommend the plaintiff's

termination date be extended to June 30, 1991, and suggested that

plaintiff use the additional time to seek new employment.   That

effort, however, proved largely unsuccessful.

           The case was submitted to the jury, which found on

special interrogatories that plaintiff had proved "but for his

national origin/race (Columbian) [sic], the Medical College of

Pennsylvania (MCP) would have renewed his employment contract

annually," and that his damages totaled $2,484,000.

           In ruling on post-trial motions, the district court

granted judgment as a matter of law to the defendant, observing

that although plaintiff was of Colombian origin:   "No attempt was

made to show that [plaintiff] had mannerisms which were thought

                                 11
to be peculiar to Colombians."   The court commented that although

the plaintiff's claim hinged entirely on the alleged animus of

Dr. Meister, there was no evidence that he either directed or

made an effective recommendation for the non-renewal of the

plaintiff's contract.   "The only evidence is that Dr. Meister's

superiors made the non-renewal decision, and as to them, no

national origin discrimination animus is assigned."

          In reviewing the testimony, the trial judge commented:

"There is no evidence to rebut defendant's evidence that the

cardiologists' decision to stop referring their patients for

surgery to both Dr. Spagna and Dr. Gomez were, by each, an

exercise of independent professional judg[]ment, made in the best

interests of their particular patients."   The court concluded,

"no rational jury could have found that MCP [the College] was

motivated by anti-foreign/race animus toward the plaintiff."

          Plaintiff has appealed, arguing there was sufficient

evidence from which the jury could find that Dr. Meister did not

refer patients because of discriminatory bias, and that he

exercised his influence to have the College terminate the

plaintiff's employment.   Plaintiff did not appeal the pre-trial

dismissal of Dr. Meister and the other physicians.




                                 12
                                 I.

          In reviewing the grant of judgment as a matter of law

following a trial, an appellate court applies the same standard

as the trial court.   Rotondo v. Keene Corp., 956 F.2d 436, 438

(3d Cir. 1992).   The question is whether, in viewing the evidence

in the light most favorable to the losing party, no jury could

decide in that person's favor.   Walter v. Holiday Inns, Inc., 985

F.2d 1232, 1238 (3d Cir. 1993)_"




                                 13
