Henry v. Bristol Hospital, Inc.

          RULING ON MOTION FOR SUMMARY JUDGMENT

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE

         Laura Henry (“Henry”) commenced this action against her former employer, Bristol Hospital, Inc. (“Bristol Hospital” or “the Hospital”), after she was allegedly sexually assaulted by Dr. Olakunle Oluwole (“Dr. Oluwole”) on June 11, 2011. Fourth Am. Compl., Doc. No. 128 at ¶¶ 68, 73-75. Henry alleges that Bristol Hospital was negligent in hiring, retaining, and supervising Dr. Oluwole while he retained staff privileges at the Hospital. Id. at ¶¶ 274, 281, 303. Henry also asserts that Bristol Hospital is vicariously liable for Dr. Oluwole's alleged sexual misconduct. Id. at ¶¶ 329-35. Bristol Hospital moves for summary judgment. See Doc. No. 227. On October 23, 2018, I held a hearing on the Motion for Summary Judgment, at which I took the motion under advisement. For the following reasons, Bristol Hospital's Motion for Summary Judgment is granted in part and denied in part.

         I. Standard of Review

         Summary judgment is appropriate when the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment).

         When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see also Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (court is required to “resolve all ambiguities and draw all inferences in favor of the nonmoving party”). When a motion for summary judgment is properly supported by documentary and testimonial evidence, however, the nonmoving party may not rest upon the mere allegations or denials of the pleadings, but must present sufficient probative evidence to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

         “Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits evidence that is “merely colorable, ” or is not “significantly probative, ” summary judgment may be granted. Anderson, 477 U.S. at 249-50.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

Id. at 247-48. To present a “genuine” issue of material fact, there must be contradictory evidence “such that a reasonable jury could return a verdict for the non-moving party.” Id. at 248.

         If the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof at trial, then summary judgment is appropriate. Celotex, 477 U.S. at 322. In such a situation, “there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23; accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (movant's burden satisfied if he can point to an absence of evidence to support an essential element of nonmoving party's claim). In short, if there is no genuine issue of material fact, summary judgment may enter. Celotex, 477 U.S. at 323.

         II. Background

         Henry was initially hired by Bristol Hospital in August 1986. Fourth Am. Compl., Doc. No. 128 at ¶ 4. In 2011, she held the position of “surgical services associate, ” where her duties included “booking surgeries for surgeons' offices” and “ensuring that operating rooms were prepared for scheduled surgeries.” Def's Local Rule 56(a)(1) Stmt., Doc. No. 229 at ¶ 2. Dr. Oluwole was employed as a general surgeon by Bristol Hospital Multi-Specialty Group Inc. (“BHMSG”) on or about August 17, 2009. Id. at ¶ 4. As a member of BHMSG, Dr. Oluwole retained staff privileges to practice at Bristol Hospital. See Pl's Local Rule 56(a)(2) Stmt., Doc. No. 237-1 at ¶ 4.

         On March 30, 2011, Henry became Dr. Oluwole's patient. See id. at ¶ 8. Specifically, Henry consulted Dr. Oluwole to follow up on a prior lap band procedure she had undergone in December 2009. Def's Local Rule 56(a)(1) Stmt., Doc. No. 229 at ¶ 9. On June 11, 2011, Henry contacted Dr. Oluwole to address pain and discomfort she experienced after her previous lap band procedure. Id. at ¶ 10. Upon her arrival to the BHMSG medical building, Dr. Oluwole instructed Henry to accompany him to his office so he could retrieve a needle to remove built up fluids causing Henry discomfort. See Pl's Opp., Doc. No. 237 at 6.

         Henry alleges that, once she entered Dr. Oluwole's office, he grabbed her by the arm and attempted to kiss her. Id. Henry rejected Dr. Oluwole's initial advance and was instructed to “lay on her back, and unbuckle her jean pants, so [Dr. Oluwole] could gain access to her port.” Id. at 6-7. Shortly after Henry removed her pants, Dr. Oluwole “grabbed [Henry] by the hair and yanked her head towards his erect and exposed penis.” Id. at 7. Henry tried to escape but was held down by Dr. Oluwole who then sexually assaulted her. Id. After the assault, Henry continued to receive treatment from Dr. Oluwole who performed a second surgery on Henry in November 2011. Def's Local Rule 56(a)(1) Stmt., Doc. No. 229 at ¶ 13.

         Following the alleged assault, Dr. Oluwole continued to sexually harass Henry at Bristol Hospital during normal business hours. See Pl's Opp., Doc. No. 237 at 7-8; Henry Dep., Doc. No. 237-82 at 118. Dr. Oluwole made unsolicited sexual comments to Henry and would “come by [her] office . . . and chastise [her]” until September 2012. Henry Dep., Doc. No. 237-82 at 118. On one occasion in September 2012, Henry's daughter stopped by Bristol Hospital to show Henry her newborn grandson. Id. at 119. When Dr. Oluwole arrived, he reached for the baby and rubbed his body against Henry. Id. On another day that month, ^[1] Henry states that Dr. Oluwole told her that “she needed to have sex, so she did not develop cobwebs.” Pl's Opp., Doc. No. 237 at 8; Henry Dep., Doc. No. 237-82 at 118. Dr. Oluwole's repeated encounters with Henry made her feel “very, very uncomfortable.” Henry Dep., Doc. No. 237-82 at 119.

         On September 14, 2012, Henry reported the June 11, 2011 incident to her boss, Lynne Ramer. See Def's Local Rule 56(a)(1) Stmt., Doc. No. 229 at ¶ 21; Ex. 38 to Pl's Opp., Doc. No. 237-42 at 3. Later that day, Human Resources commenced an investigation into the allegations and suspended Dr. Oluwole pending the outcome. Def's Local Rule 56(a)(1) Stmt., Doc. No. 229 at ¶ 22-23; Ex. 38 to Pl's Opp., Doc. No. 237-42 at 3. Dr. Oluwole denied the assault but did admit having an “uncomfortable intimate incident” with Henry where “he kiss[ed] and fondl[ed]” her. Ex. 12 to Pl's Opp., Doc. No. 237-14 at 3. BHMSG terminated Dr. Oluwole with “cause” on October 2, 2012, due to his admission of an inappropriate encounter with Henry. Id.

         Henry filed the current action on June 10, 2013, alleging fifteen counts against Bristol Hospital and Dr. Oluwole to recover compensatory and punitive damages stemming from Dr. Oluwole's alleged sexual misconduct. See Compl., Doc. No.1 at ¶¶ 31-132. Henry never served Bristol Hospital with the original complaint. Def's Br., Doc. No. 228 at 12. Instead, Henry filed her First Amended Complaint (doc. no. 8) on September 9, 2013, which was served on Bristol Hospital on November 11, 2013. Id. In the First Amended Complaint, Henry brought claims against Bristol Hospital for Title VII sexual harassment, false imprisonment, negligent and intentional infliction of emotional distress, negligent hiring, and negligence. Id. at 5-6. After several motions for leave to amend, Henry filed a Fourth Amended Complaint on August 20, 2015, which is now the operative pleading. See generally Fourth Am. Compl., Doc. No. 128.

         In her Fourth Amended Complaint, Henry asserts claims against Bristol Hospital for: (1) Title VII sexual harassment (Count One), (2) intentional infliction of emotional distress (Count Eleven), (3) negligent infliction of emotional distress (Count Twelve), (4) negligent hiring, retention and supervision (Counts Thirteen and Fourteen), (5) negligence (Count Fifteen), and (6) negligence through an agent or supervisor (Count Sixteen).^[2]

         On April 12, 2016, Bristol Hospital moved to dismiss Counts One (Title VII sexual harassment), Eleven (intentional infliction of emotional distress) and Twelve (negligent infliction of emotional distress) of the Fourth Amended Complaint. Def's Mot. to Dismiss, Doc. No. 140. United States District Judge Alfred V. Covello granted Bristol Hospital's motion and dismissed Counts One, Eleven and Twelve against Bristol Hospital. See Mot. to Dismiss Order, Doc. No.181. Judge Covello also granted Henry's Motion for Default Judgment against Dr. Oluwole. See Mot. for Default Order, Doc. No. 103. Thereafter, the case was transferred to my docket. Bristol Hospital is currently the only remaining defendant in the case. Henry asserts the following claims against Bristol Hospital:

Count Thirteen: Negligent hiring, retention and supervision

Count Fourteen: Negligent hiring, retention and supervision

Count Fifteen: Negligence

Count Sixteen: Negligence through agent or supervisor Bristol Hospital now moves for summary judgment on all of Henry's remaining claims.

         III. Discussion

         A. Henry's Claims Are Tolled Because of the Continuing ...