Unusual Settlement Caps Sex-Discrimination Case

Observers laud the fact that the agreement lets Heidi Weissmann and her former employers keep their controversial debate alive Despite a recently announced out-of-court settlement in medical researcher Heidi S. Weissmann's seven-year-long sex-discrimination case against her former employers, each side still insists that it would have prevailed had the case gone to trial. While it is debatable whether the $900,000 settlement--notab

Barbara Spector
Apr 17, 1994

Observers laud the fact that the agreement lets Heidi Weissmann and her former employers keep their controversial debate alive
Despite a recently announced out-of-court settlement in medical researcher Heidi S. Weissmann's seven-year-long sex-discrimination case against her former employers, each side still insists that it would have prevailed had the case gone to trial. While it is debatable whether the $900,000 settlement--notable for the large amount and the absence of a confidentiality agreement--helps or hurts the cause of women's advancement in science, most observers agree that the parties' freedom to discuss the highly publicized case may help to further a public understanding of the issues involved.

Weissmann, formerly an attending physician at Montefiore Medical Center and an associate professor of radiology at Yeshiva University's Albert Einstein College of Medicine in Bronx, N.Y. (R. Kaufman, The Scientist, Sept. 14, 1992, page 1), says she hopes the settlement of her United States District Court suit against the two institutions will "let women [pursuing discrimination cases] know they can have the courage of their convictions and be successful in the end."

Says Catherine Didion, executive director of the Washington, D.C.-based Association for Women in Science (AWIS): "The more we get this on the table--the good and the bad--the more we can be able to address it and get on with the science."

According to the settlement agreement, $35,000 of the amount constitutes back pay, $540,000 compensates Weissmann for pain and suffering, and $325,000 represents legal fees and expenses. An attorney for Weissmann, Edward S. Rudofsky of New York, says that the plaintiff's lawyers "agreed to accept fixed fees instead of their time charges to accommodate the settlement and see that Dr. Weissmann received a substantial recovery for her injuries and damages."

Weissmann has estimated the value of legal services rendered in her case at more than $1 million.

Montefiore officials say the institution's insurance covers the entire settlement amount. The institution also paid for the legal expenses of Weissmann's former lab chief incurred in an earlier copyright-infringement suit she had filed against him, a central issue in the sex-discrimination case. Weissmann won the copyright case on appeal.

As part of the settlement, Weissmann has agreed not to seek employment at Montefiore, Einstein, or any of 29 affiliated institutions.

Philip R. Forlenza, an attorney for Montefiore, says that, despite the agreement to settle, he believes his clients would have won had the case gone to trial. "We wanted to be vindicated," he says.

Now that her seven-year-long sex-discrimination case against her former employers, Bronx, N.Y.-based Montefiore Medical Center and Albert Einstein College of Medicine, has been settled, nuclear medicine and radiology researcher Heidi S. Weissmann must decide what to do with the rest of her life.

Although she has not yet been successful in finding a job in her field, Weissmann says, "things are slowly progressing in a positive direction": Since last January, she says, she has been invited to give talks in her field to professional groups, such as the Society of Gastrointestinal Radiologists; last year, she was also asked to lecture at a teaching hospital.

In addition, Weissmann says, "I have been invited to lecture on issues of medical ethics, scientific misconduct, and the glass ceiling."

Weissmann says she intends to use a portion of her settlement money "to establish a network and resource center for other women who find themselves in a situation [similar to the one] I found myself in, and [to help] men and women who were whistle-blowers."

--B.S. Weissmann's lawyer, Rudofsky, says District Court Judge Lawrence M. McKenna's findings in response to a motion filed by another Weissmann attorney, Eleanor Jackson Piel, "indicated that Dr. Weissmann had a very strong case and had already satisfied most of the elements. The issue was whether the other side's justification of it would stand up before a jury."

Eleanor Smeal, president of the Feminist Majority Foundation, which supported Weissmann, says the plaintiff's success in her copyright case strengthened her claim of discrimination. "You seldom get a sex-discrimination case where the plaintiff has already won in court," Smeal says. "It was a slam-dunk case."

Despite his clients' confidence that they would win, Forlenza says, the institutions decided to settle after years of failed attempts to go to trial, which he attributes to Weiss-mann's repeated changes of attorneys and other delays caused by the plaintiff. "I was convinced Dr. Weissmann was never going to take the witness stand," he says.

Meanwhile, For- lenza says, Mon-tefiore and Einstein were receiving "very severe criticism launched by the people and organizations supporting Dr. Weissmann. They said, `You're waging a battle of attrition; you're wasting funds that could be put to better use.'" Faced with such criticism, which was well publicized, "the top people in the institutions went through a soul-searching exercise," ultimately deciding to settle. "But," he says, "there was unanimity in their belief that the institutions had not acted improperly."

Weissmann blames the defendants for the delays. "They'll fight you to the bitter end," she says, "and if you're still around seven or 15 years later, they'll offer you a settlement. What do they lose by first trying to run you out of steam?"

Smeal, whose organization provided Weissmann with funds and office space, says the group took on her cause because "we felt that she was the kind of plaintiff that was going to hang in there, no matter what."

Weissmann first filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) in April 1987. The EEOC complaint alleged that she had not been promoted to chief of service in 1986 and had received an unfavorable performance review in January 1987 because she was female, according to court documents.

Regarding Weissmann's allegations that her negative performance review was motivated by sexism, Forlenza says, "All the criticism was substantiated by documents and attendance rec-ords." Both sides acknowledge that in June 1987 Weissmann was denied a 5 percent raise given to virtually all members of the department.

In a separate but related case during this time, Weissmann charged that on two occasions, her former lab chief, Leonard M. Freeman, represented a book chapter she had written as his own. She filed for a temporary restraining order in August 1987 and later filed a copyright-infringement suit in the same U.S. District Court, in New York. The court found for the defendant in May 1988. The Second Circuit U.S. Court of Appeals reversed the decision in 1989. Later that year, Freeman's appeal to the Supreme Court was denied.

In January 1988, Weissmann filed her discrimination suit against Montefiore and Einstein. Her third amended complaint, filed in September 1993, alleged that on the day of the hearing on her application for the temporary restraining order, she was escorted from her office by security guards and asked to relinquish her keys. Her attorney at the time wrote to the hospital's lawyers that the action constituted a firing.

In October 1987, according to the complaint, Weissmann received a dismissal letter from Montefiore, which maintained that the key episode was not a discharge and that her failure to return to work constituted a resignation. Weissmann alleged in her complaint that the incident and the denial of the raise were retaliation for the EEOC filing and the copyright suit. That same month, it was announced that Freeman, now chief of nuclear medicine and radiology at Einstein, had been promoted.

Montefiore denied Weissmann's charges, noting that the raise would have been given retroactively when she submitted a grant application she was to have been writing. Mon-tefiore further maintained that Weissmann was asked for her keys because the hospital had evidence that she was removing patient rec-ords from her office.

Letty Lutzker, a former colleague of Weissmann and Freeman's who is now chief of nuclear medicine at St. Barnabas Medical Center in Livingston, N.J., says the case damages the feminist cause. "There was no discrimination; there was no exploitation of a young scientist as far as I can see," says Lutzker. "Dr. Freeman is not someone who exploits people; he's one of the most gender-neutral people I have known."

Adds another former colleague, Corine Yee, physician in charge of nuclear medicine at Kaiser-Los Angeles, "I know that there is discrimination that is more covert than overt, but you can't just turn around and cry discrimination at every turn if you don't get what you want. I think what she was asking for was unreasonable."

Lutzker and Yee, who confirm Montefiore's assertion that they were first offered the chiefship that Weissmann contended she was denied because she was a woman, say the plaintiff's professional advancement was hindered because she had not completed her boards in nuclear medicine or radiology.

Says Rudofsky, Weissmann's attorney: "Dr. Weissmann was board eligible; documents discovered in the hospital files indicated that she was being billed as a specialist. "She claimed she was not encouraged to take the boards; in effect, she claimed, she was programmed for failure. Board certification only became an issue when she complained about discrimination."

Weissmann says Montefiore's department chairman did not fill out the forms she needed to take the boards in time to meet the deadline. Forlenza, Montefiore's attorney, denies the charge, saying that the chairman had urged her to take the boards for several years.

According to Rudofsky, Weiss-mann's refusal to accept a confidentiality agreement was "a major impediment to settlement." Had it not been for this stumbling block, he says, the case might have been settled as early as 1989.

"I don't doubt that cost her hundreds of thousands of dollars," says former National Institutes of Health fraud researcher Walter Stewart. "It proves that she's a public hero, not just someone with a private grievance."

"I don't think these things should be kept confidential," says former Montefiore researcher Yee. "Montefiore is not at a disadvantage for having something open like this."

A 1989 settlement offer from the institutions, under which Weissmann would have been paid $150,000, included a provision that neither side disclose the terms. In speaking to others, each party would have been required to use a statement saying that the dispute was "caused largely by inadequate communication."

"They wanted me to make a public, written statement exonerating Dr. Freeman and to vacate the [copyright] judgment against him," says Weissmann.

"My integrity and First Amendment rights were not for sale," she says. "I couldn't live with accepting what they wanted." Regarding the statement and proposed confidentiality agreement, she says, "I could not accept money and become part of their whitewash and coverup."

Forlenza, calling the 1989 confidentiality agreement "very, very standard," says the institutions had no problem deleting the provision from the final settlement. "The first time [Weissmann and her lawyers] complained about it, we backed off," he says.

According to the Feminist Majority, the $900,000 payment is one of the largest for a single plaintiff in a sex-discrimination case against a medical institution. Nonetheless, Rudofsky says, "I would have liked to see her reinstated, and to recover more for direct and indirect losses."

Houston attorney Thomas H. Padgett, Jr., who represents plaintiffs in sex-discrimination suits, speculates that Weissmann might have been awarded more had the case gone to trial. In one discrimination case he handled involving a medical researcher, he says, the jury awarded $100,000 more than the plaintiff had asked for. "Where did that extra hundred come from? Just from them being mad," Padgett says. "That's the same kind of thing that could have happened in this case."

Smeal says it's disturbing that Montefiore's insurance covers the settlement as well as Freeman's expenses in the copyright case, even though Weissmann sued him as an individual. "Why does the university feel obligated to support him if he made a mistake?" she asks. "The person who's aggrieved has a tremendous financial burden in fighting the case."

Weissmann's supporters contend that, in light of her previous accomplishments--she did pioneering research in biliary imaging,receiving the Distinguished Alumnus Award of Mount Sinai School of Medicine in 1980 and the Tetalman Memorial Award of the Society of Nuclear Medicine in 1982--it is unfair for Montefiore to insist that she not apply to any of its affiliates. "We as American taxpayers should question why a scientist who obviously has excellent qualifications and obviously did not bring a frivolous lawsuit should not be allowed to work for them again," Smeal says.

Montefiore's attorney, Forlenza, says that an agreement not to seek reemployment is "a very common provision in these kinds of cases." Noting that the list includes several nursing homes and similar facilities, Forlenza says, "Most of these are small operations; there are scores of institutions she can apply to."

Weissmann says the case has hurt her prospects of returning to her field. "For seven years, I have not been able to get a job in private practice, academia, or industry," she says (see accompanying story).

Freeman, who was cleared in three internal investigations by Einstein and Montefiore (a fourth was disbanded before reaching a conclusion), says that, other than the consumption of an "inordinate amount" of his time, "in terms of my relationships with people, [the case] has had no impact whatsoever. People have felt it important to rise to the occasion and come to my assistance, to refute these allegations," he says.

"The scientific community, I think, realized it was a minor, trivial type thing blown out of proportion." Noteworthy, Freeman says, is that "women have been among my greatest supporters."

Freeman, coeditor of Seminars in Nuclear Medicine and editor of Nuclear Medicine Annual, says that "I have no problems getting people to write articles for my journals. I almost find people more anxious--to show that there's no change" in the way he's regarded.

Furthermore, he says, "I have received two major awards from people well aware of what's going on." In June 1993 he was presented with the Society of Nuclear Medicine's Distinguished Educator Award; in 1990, he was elected to the Alpha Omega Alpha honorary fraternity.

AWIS's Didion cautions female researchers who feel they have been discriminated against not to be too hasty in following in Weissmann's footsteps. "We don't necessarily feel that litigation is the avenue that women should explore," she says. Noting the length of Weissmann's case, Didion says, "She had the stamina and the emotional and financial support to stay this long. Most womendon't realize the type of commitment that is. We counsel women to be as informed as possible about what the costs are and what the alternatives are."

Furthermore, she says, if highly publicized discrimination cases persist, men may overreact by declining to interact with women in mentorship or collegial roles: "We need to be careful that we don't allow this to be the only example of women in science."