Arnold Melman, M.D., Appellant, v Montefiore Medical Center, Respondent.
Supreme Court, Appellate Division, First Department, New York
May 29, 2012
946 NYS2d 27
Arnold Melman, M.D., Appellant, v Montefiore Medical Center, Respondent.
First Department, May 29, 2012
Schwartz & Perry LLP, New York City (Murray Schwartz, Davida S. Perry and Brian Heller of counsel), for appellant.
Littler Mendelson, P.C., New York City (Jean L. Schmidt of counsel), for respondent.
OPINION OF THE COURT
Friedman, J.P.
Plaintiff Arnold Melman, M.D., was hired as chairman of defendant Montefiore Medical Center’s urology department in
In his opening brief, plaintiff states that his claims “should be analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” The McDonnell Douglas framework has been adopted for use in discrimination actions brought under the respective Human Rights Laws of the State and City of New York (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004], citing Ferrante v American Lung Assn., 90 NY2d 623, 629-630 [1997]). The New York City Human Rights Law (NYCHRL) was amended by the
In a recent decision that affirmed summary judgment dismissing a complaint, this Court held that an action brought under the NYCHRL must, on a motion for summary judgment, be analyzed both under the McDonnell Douglas framework and the somewhat different “mixed-motive” framework recognized in certain federal cases (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [2011] [summary judgment dismissing a claim under the NYCHRL should be granted only if “no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof”]). Under Bennett, it is proper to grant summary judgment dismissing a claim under the NYCHRL only if the defendant demonstrates that it is entitled to summary judgment under both of these frameworks. Although plaintiff himself has not suggested that we analyze this case under a mixed-motive framework, in adherence to the holding of Bennett and to the aforementioned intent of the
We turn first to an analysis of plaintiff’s discrimination claim under the McDonnell Douglas framework, as the parties have presented the case to us. Under the McDonnell Douglas framework as applied in New York, a plaintiff alleging employment discrimination in violation of the NYCHRL
“has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscrimi-
natory reasons to support its employment decision. In order to nevertheless succeed on [his] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” (Forrest, 3 NY3d at 305 [footnote, citations and internal quotation marks omitted]).
“Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff[ ]” (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006]).
In his brief, plaintiff summarizes his complaint against Montefiore as follows: “Melman was paid far less than his position and accomplishments warranted, while younger physicians were treated more favorably.” In this regard, plaintiff (whose total compensation for 2008 was close to half a million dollars) complains that Montefiore denied his requests for raises, gave him inadequate raises, and awarded him insufficient bonuses. Plaintiff points out that Dr. Spencer Foreman, Montefiore’s former president and CEO, admitted at his deposition that he told plaintiff in 2006 that “his compensation at Montefiore was below the level of others in comparable positions elsewhere.” In support of the contention that “younger physicians were treated more favorably,” plaintiff identifies one of his subordinates in the urology department (referred to hereinafter as RG), a physician 25 years younger than himself, who (at the very end of the period documented in the record) received total annual compensation exceeding plaintiff’s.2 Plaintiff testified that, on one occasion, Montefiore acceded to RG’s demand for an increase in compensation around the same time that the
Assuming, as we do, that plaintiff has established “the minimal prima facie case” (Broome v Keener, 236 AD2d 498, 499 [1997]), the burden shifts to Montefiore to come forward with admissible evidence that it had “legitimate, independent, and nondiscriminatory reasons” (Forrest, 3 NY3d at 305) for taking the actions adverse to plaintiff for which he sues. As the dissent and plaintiff concede, Montefiore has sustained this burden.
Turning first to the issue of RG’s compensation, it is undisputed that this physician’s demands for increased compensation were granted because he was threatening to leave Montefiore if he were not given a raise. Indeed, plaintiff testified that he personally, out of a desire “to protect my faculty that I had hired,” conveyed RG’s salary demand to Foreman, warning that RG was “going to leave if we don’t give him more money.”3 The record shows that there was reason to believe that RG was not making an idle threat. Susan Green-Lorenzen, who was Montefiore’s clinical vice-president with operational responsibility for the urology department during the relevant period, states in her affidavit that RG is “the only surgeon in our employ who possesses the unique skill set to perform robotic prostate surgery and train future surgeons on robotic urology surgery.”4 Green-Lorenzen further notes that, when RG’s base salary was
Moreover, plaintiff’s total compensation exceeded RG’s in each year from 2004 through 2007. The record shows that (1) it was not until 2007 that RG’s total compensation rose to within $100,000 of plaintiff’s and (2) it was only at the end of 2008, the last year documented in the record, that RG’s total compensation first exceeded plaintiff’s.5 Aside from RG at the very end of the period for which we have evidence, plaintiff does not identify any subordinate of his (of any age) whose compensation exceeded his own. In fact, the record shows that plaintiff was paid more than each of his subordinates other than RG during the entire period from 2004 through 2008. During those five years, plaintiff’s total annual compensation exceeded that of his highest-paid subordinate other than RG by an average of approximately $190,000.6
Montefiore also set forth, through Green-Lorenzen’s affidavit, the charges, collections, Relative Value Units (RVUs) (a metric used by Medicare) and operating room (OR) cases generated for the hospital by plaintiff’s and RG’s respective practices from 2004 through 2008. Montefiore uses these indicators in determining a physician’s compensation. In each category, plaintiff’s numbers declined or stayed the same through this period, while RG’s increased. For example, plaintiff’s RVUs
Plaintiff also complains that, as Foreman told him in 2006, he was paid less than physicians in comparable positions at other institutions.8 In this regard, he highlights his own achievements as a clinician, researcher and administrator, asserting that his compensation was unreasonably low for a physician with such an exemplary record. However, even if we assume the accuracy of plaintiff’s description of his achievements—and ignore the failings set forth in Montefiore’s submissions—he does not discuss how his achievements compare with the achievements of chairmen of other departments at Montefiore or with the achievements of chairmen of comparable departments at other institutions. For example, plaintiff makes much of his personal, nonexpert estimation that the urology department generated $228 million in revenue for Montefiore during his chairmanship from 1988 through 2008. Assuming that this estimate is accurate, it does not tell us whether the department was meeting expectations, over-performing, or under-performing. In this regard, Robert B. Conaty, Montefiore’s executive vice-president for operations, states in his affidavit:
“In determining Dr. Melman’s compensation, I did not ignore the money that the Urology Department contributed to Montefiore. It was expected that the Department would contribute that much money. Other departments generated as much and most generated more. Thus the fact that the Department generated money did not offset or excuse the issues with Dr. Melman’s performance.”
As noted in the above remark, Montefiore was entitled, in setting plaintiff’s compensation, to consider the deficiencies of his performance as a departmental chairman, as well as his achievements. A number of the perceived deficiencies in plaintiff’s per-
In addition, Montefiore documents that, from 2004 to 2006, the urology department’s residency program—of which plaintiff was director—was placed on probation by the Residency Review Committee (RRC) of the Accreditation Council for Graduate Medical Education. The RRC had earlier warned that deficiencies in the program required correction. Even when the program was taken off probation in 2006, the RRC noted that certain previously cited deficiencies had not been corrected.
Plaintiff attributes one problem with the urology residency program cited by the RRC—a deficiency of operative experience for residents—to Montefiore’s failure to allow him to expand the department and, in particular, its refusal to permit him to hire a specialist in female urology. However, Montefiore explains,
As of the end of 2008, the urology department continued to have significant problems, as reflected in a memorandum by Conaty summarizing the performance review held for plaintiff on December 18, 2008. The memorandum acknowledges plaintiff’s successes during the year, such as the recruitment of two specialists in pediatric urology. However, the memorandum notes that problems with recruitment remained: “[T]here are several critical positions which remain unfilled and recruitment efforts seemed to have stalled; recruitment efforts should have focused on building oncology and endoscopy services . . . [but plaintiff’s] interest is in hiring a uro-gynecologist.”9 Other problems noted by the memorandum include complaints from residents (“poor teaching, lack of mentoring and feedback, as well as . . . limited breadth of operating experience and faculty involvement”); complaints from faculty (“The general sense is that [plaintiff] is absent from the Department . . . his physical presence in the Department is limited to 1-1½ days per week”); and complaints about the quality of the department’s consultative service. The memorandum concludes by noting that plaintiff was being awarded a bonus of $100,000 “based on his and the Department’s performance during 2008.” Plaintiff’s bonus for the previous year had been $125,000.
Another December 18, 2008 memorandum by Conaty notes that Montefiore had learned that plaintiff had forwarded to an outside consultant an internal Montefiore report on his record keeping, along with supporting patient records. The memorandum notes that plaintiff breached Montefiore’s confidentiality policies by taking this action, which he did “without permission [from] or even notification to medical center administration.” The memorandum concludes with the following admonition to plaintiff: “As a senior leader, you are expected to have a basic understanding of medical center policies, and to seek counsel
Given Montefiore’s production of evidence of legitimate, nondiscriminatory reasons for setting plaintiff’s compensation at the levels it chose, and ultimately to set RG’s compensation at a higher level than his, the burden shifted back to plaintiff to raise a triable issue as to whether these reasons were pretextual by producing evidence tending to show “both that the stated reasons were false and that discrimination was the real reason” (Forrest, 3 NY3d at 305). Plaintiff fails to raise any issue on either score.
Plaintiff does not identify any evidence suggesting the falsity of Montefiore’s proffered reasons for the challenged compensation decisions. In summary, those reasons were: (1) the need to raise the compensation of RG to retain the services of the only physician at Montefiore who performed robotic prostate surgery; (2) the documented problems with the urology department under plaintiff’s chairmanship; and (3) the stagnation or decline of the monetary value of plaintiff’s practice to the hospital (as measured by each of the four aforementioned indicators—charges, collections, RVUs, and OR cases) during the five years ending in 2008.10
While plaintiff questions Montefiore’s business judgment in addressing the foregoing matters—suggesting, for example, that the departmental problems cited by Montefiore were “stale,” not plaintiff’s fault, and, in any event, outweighed by plaintiff’s alleged achievements as chairman—an age discrimination plaintiff “must do more than challenge the employer’s decision as contrary to ‘sound business or economic policy,’ since such an argument does not give rise to the inference that the [adverse action] was due to age discrimination” (Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 124 [2007], quoting Ioele v Alden Press, 145 AD2d 29, 37 [1989]; see also Alvarado v Hotel Salisbury, Inc., 38 AD3d 398 [2007] [same]).11 In determining whether the reason for an adverse action was pretextual, “[i]t is not for the Court to decide whether the[ ] complaints [against plaintiff] were truthful or fair, as long as they were made in good faith” (Saenger v Montefiore Med. Ctr., 706 F Supp 2d 494, 508 [SD NY 2010]; see also Forrest, 3 NY3d at 312 [on summary judgment motion in discrimination case, it was not “material whether defendants’ contemporaneous assessment of plaintiff’s recordkeeping skills was justified”]). “The mere fact that [plaintiff] may disagree with [his] employer’s actions or think that [his] behavior was justified does not raise an inference of pretext” (id. [internal quotation marks omitted]). “[A] challenge ... to the correctness of an employer’s decision does not, without more, give rise to the inference that the [adverse action] was due to age discrimination” (Kelderhouse v St. Cabrini Home, 259 AD2d 938, 939 [1999], citing Ioele, 145 AD2d at 36-37; see also Ospina v Susquehanna Anesthesia Affiliates, P.C., 23 AD3d 797, 799 [2005], lv denied 6 NY3d 705 [2006] [same]). Nor can plaintiff establish pretext “by rationalizing [his] errors or by blaming others” (Saenger, 706 F Supp 2d at 509 [internal quotation marks omitted]).
In sum, the court in an employment discrimination case “should not sit as a super-personnel department that reexamines an entity’s business decisions” (Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 [2009], lv denied 14 NY3d 701 [2010] [internal quotation marks omitted]). As the Court of Appeals has stated: “[I]t matters not whether the [employer’s] stated reason for [the challenged action] was a good reason, a bad reason, or a petty one. What matters is that the [employer’s] stated reason for [the action] was nondiscriminatory” (Forrest, 3 NY3d at 308 n 5).
This Court has observed that, in employment discrimination jurisprudence, “the term ‘prima facie case’ is used ... to denote the establishment by plaintiff of facts sufficient to create a ‘legally mandatory, rebuttable presumption,’ rather than the more traditional meaning of describing plaintiff’s burden of setting forth sufficient evidence to go before the trier of fact” (Sogg v American Airlines, 193 AD2d 153, 156 n 2 [1993], lv denied 83 NY2d 754 [1994], citing Texas Dept. of Community Affairs v Burdine, 450 U.S. 248, 254 n 7 [1981]). Thus, that an employee has made out a prima facie case under the McDonnell Douglas framework does not necessarily mean that he or she will succeed in defeating a summary judgment motion supported by admissible evidence of legitimate reasons for the employer’s challenged action (see Stephenson, 6 NY3d at 271 [although “there was enough evidence . . . to establish a prima facie case” of age discrimination, “(a)fter the nondiscriminatory reasons were given and the burden shifted to them, plaintiffs did not prove that the reasons given were pretextual”]; Forrest, 3 NY3d at 307 [“plaintiff . . . cannot avoid summary judgment for defendants because, even assuming that she has made a prima facie showing . . . , she has failed to rebut defendant’s proof that the purported termination did not arise under circumstances giving rise to an inference of discrimination”]; Mete v New York State Off. of Mental Retardation & Dev. Disabilities, 21 AD3d 288, 290 [2005] [affirming summary judgment dismissing discrimination claims although plaintiffs established a prima facie case]; Roberts v Philip Morris Mgt. Corp., 288 AD2d 166, 166 [2001] [same]; Schwaller, 249 AD2d at 196-197 [same]; Broome v Keener, 236 AD2d at 498 [same]; see also Abdu-
Our dissenting colleague, in support of his contention that Montefiore is not entitled to summary judgment, places great emphasis on the circumstance that a number of older departmental chairmen (none of whom testified or submitted an affidavit in this proceeding) left Montefiore involuntarily and were replaced by substantially younger physicians.12 We have assumed that the departure and replacement of these physicians can support plaintiff’s prima facie case. Nonetheless, this bare collateral circumstance, without a developed factual record illuminating why the other physicians were asked or encouraged to leave, cannot defeat a summary judgment motion based on uncontroverted evidence of legitimate, nondiscriminatory reasons for the employment decisions concerning plaintiff that are directly at issue in this action. While it was Montefiore’s burden to come forward with evidence supporting the legitimate reasons it proffered for its adverse actions against plaintiff himself, we decline to impose on Montefiore the additional burden of justifying its
As the dissenter himself acknowledged in his opinion in Bennett, the initial “de minimis prima facie showing” required of a plaintiff under McDonnell Douglas should not be inflated with the “frequently . . . onerous” showing required to defeat a well supported summary judgment motion (92 AD3d at 38). To reiterate, regarding the departures of the other chairmen, plaintiff has made, at most, a de minimis prima facie showing (i.e., that the other chairmen were in the protected class, were asked to leave, and were replaced by younger physicians). He has not come forward with evidence that discrimination actually occurred in the case of any of these former chairmen, and, to reiterate, in the only two of these cases in which Montefiore was sued, it was exonerated upon summary judgment.13 It is the dissent’s view that plaintiff, merely by demonstrating that a handful of other employees could have made a “de minimis prima facie showing” for themselves, somehow satisfies his own “onerous” burden of rebutting Montefiore’s “proffered nondiscriminatory reasons” (id.) for its challenged actions in his particular case. This approach appears quite radical to us.
Aside from his failure to flesh out the facts underlying the departures of the other older departmental chairmen, plaintiff has not offered any statistical data or analysis that could support a finding of a pattern of age discrimination.14 In particular, the record contains no information about terminations of younger physicians, so there is no basis to infer that older physicians
Plaintiff also relies on a total of three remarks by Foreman (to whom plaintiff attributes Montefiore’s adverse actions against him) that are said to manifest bias against older physicians. This reliance is unavailing. Two of the remarks were simply positive references to “young” professionals that, in the absence of other evidence of ageist bias, do not imply any sinister aspersion on older workers.16 Stray remarks such as these, even if made by a decision maker, do not, without more, constitute evidence of discrimination (see Mete, 21 AD3d at 294, citing Danzer v Norden Sys., Inc., 151 F3d 50, 56 [2d Cir 1998]). The third remark, even further afield from the subject matter of this action, was simply Foreman’s comment, in a newspaper article profiling him just before his retirement, on his own weakened physical condition as he battled a malignant brain tumor. Being a patient, Foreman said, is “not a preferred state,”
We have considered the remaining matters of which plaintiff complains and find that they do not raise a triable issue of pretext. To take one example, that Foreman steered Montefiore’s chairman of the board (a personal friend) toward RG, rather than plaintiff, for surgery does not, by itself or in combination with the other evidence in the record, constitute even circumstantial evidence of age-based discrimination. In this regard, we note that it is undisputed that RG has certain skills and training that plaintiff lacks. To the extent plaintiff emphasizes that he subjectively felt “humiliated,” “degraded” and “isolated” by the perceived slights of Foreman and other Montefiore executives, we find applicable the Court of Appeals’ admonition that “mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code” (Forrest, 3 NY3d at 309 [internal quotation marks omitted]).17
The foregoing establishes that Montefiore is entitled to summary judgment when plaintiff’s discrimination claim is analyzed under the McDonnell Douglas framework. As previously noted, however, this Court held in Bennett that summary judgment dismissing a claim under the NYCHRL should not be granted unless the claim also fails when analyzed under the
somewhat more lenient mixed-motive framework. Again, although plaintiff has not requested that we subject his claim to a mixed-motive analysis, we conclude that use of that framework does not lead to a different result in this particular case.
Recognizing the mandate of the LCRRA to construe the NYCHRL as liberally as reasonably possible in favor of plaintiffs (see Albunio, 16 NY3d at 477-478) to the end that “discrimination should not play a role in [employment] decisions” (Rep of Governmental Affairs Div, Comm on Gen Welfare, Prop. Int. No. 22-A, Aug. 17, 2005, reprinted in 2005 NY City Legis Ann, at 537), we agree with the dissent that the plaintiff should prevail in an action under the
Notwithstanding that, under the
Again, meeting the minimal requirements of a prima facie case—as we assume plaintiff has done—does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, nondiscriminatory reasons for the challenged decisions. Making out a prima facie case signals nothing more than the shift of the burden of production of evidence to the employer. Once the employer meets that burden by providing a legitimate reason for its action, the prima facie case does not necessarily entitle the employee to go to trial (see Forrest, 3 NY3d at 308 n 6 [“plaintiff‘s prima facie case, combined with no evidence that the stated justification is false other than plaintiff‘s unsupported assertion that this is so, may not” suffice to support a finding of unlawful discrimination]). This principle applies as much to “mixed motive” cases as to cases in which discrimination is alleged to have been the sole motive for the adverse action (see Holcomb v Iona Coll., 521 F3d 130, 138 [2d Cir 2008] [noting, in a mixed-motive racial discrimination case, that “plaintiff may no longer rely on the presumption raised by the prima facie case” once the employer articulates a legitimate reason for its action]; Campo v Slater, 128 Fed Appx 173, 174-175 [2d Cir 2005] [while noting that plaintiff could defeat summary judgment by offering evidence that the “employment decision was more likely than not based in whole or in part on discrimination” and that plaintiff “made the minimal showing necessary to establish a prima facie case,” the court affirmed summary judgment for defendant “because there is insufficient evidence from which a reasonable trier of fact could conclude that gender bias motivated” defendant’s actions] [internal quotation marks omitted]).
Finally, plaintiff‘s claim for retaliation was also correctly dismissed. Plaintiff first suggested the possibility that Monte
In response to Montefiore’s motion setting forth the reasons for its decisions, plaintiff failed to come forward with evidence that the hospital took any action against him after January 4, 2007, that constituted retaliation for his objecting to Montefiore’s alleged discrimination within the meaning of
The dissent does not mention the foregoing allegations in its discussion of the retaliation claim, but brings up two other matters alleged by plaintiff, neither of which can support a retaliation claim. First, the dissent states that plaintiff complains that Montefiore’s current president, Dr. Steven Safyer (who succeeded Foreman in January 2008), “refused to
The dissent also cites plaintiff‘s allegation that he has not been asked to serve on search committees for new departmental chairs (and unspecified “other committees”) since he first raised the issue of discrimination in January 2007. However, Montefiore explains that the dean of the Albert Einstein College of Medicine, not Montefiore’s administration, selects the members of chair search committees. Further, plaintiff points to no evidence of either (1) the frequency of his service on search committees before January 2007 or (2) the frequency with which
At most, plaintiff has alleged that his charge of discrimination and subsequent lawsuit caused his personal relationship with Montefiore administrators to deteriorate. As a matter of common sense, this sort of breakdown in personal relations is inevitable once a serious lawsuit has been commenced. In any event, we find, as a matter of law, that plaintiff fails to allege any conduct by Montefiore causally connected to his charge of discrimination that rises to the level of actionable retaliation within the meaning of
We recognize that the NYCHRL represents a determination by the City Council that invidious discrimination is a serious problem whose victims deserve a suitable legal remedy. Still, even after the passage of the LCRRA, not every plaintiff asserting a discrimination claim will be entitled to reach a jury, as Bennett illustrates. In this case, we find that, in response to Montefiore’s uncontroverted evidence of its nondiscriminatory reasons for setting plaintiff‘s compensation at the levels it chose, plaintiff failed to come forward with evidence from which a jury reasonably could find that the challenged actions were motivated, either in whole or in part, by his age. Neither has plaintiff raised a triable issue as to whether Montefiore retaliated against him for asserting a claim for age discrimination. This being the
Accordingly, the order of the Supreme Court, Bronx County (Mark Friedlander, J.), entered May 28, 2010, which granted defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs.
Acosta, J. (dissenting). If this case had come before us on appeal from a jury determination in defendant’s favor, I would have no hesitation in concluding that the verdict was supported by sufficient evidence. But on a motion for summary judgment all reasonable inferences must be drawn in favor of the nonmoving party. In the context of an action brought pursuant to the New York City Human Rights Law,
Evidentiary Framework
The core difference between the majority and myself in this case does not concern the validity of the framework that this Court established in Bennett v Health Mgt. Sys., Inc. (92 AD3d 29 [2011], lv denied 18 NY3d 811 [2012]). Rather, our disagreement concerns how much of an inference we are willing to draw in favor of the plaintiff in what I admit is a close case.
As this Court made clear in Bennett,
“[T]he identification of the framework for evaluating the sufficiency of evidence in discrimination cases does not in any way constitute an exception to the section 8-130 rule that all aspects of the City HRL must be interpreted so as to accomplish the uniquely broad and remedial purposes of the law” (92 AD3d at 34-35).
The Local Civil Rights Restoration Act of 2005 (Local Law No.
“Where a defendant has put forward evidence of one or more nondiscriminatory motivations for its actions ... a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out. Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff‘s favor, no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof” (Bennett, 92 AD3d at 45 [emphasis added]).1
Age Discrimination
I agree with the majority that defendant met its burden of putting forward evidence of one or more nondiscriminatory motives for its actions. I am concerned, however, that the majority has performed quintessential jury functions by resolving
By enacting the City HRL, the New York City Council made it illegal to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” (
If, as plaintiff also alleges, his claimed failures of performance were “stale” by the time of the adverse actions in question, he is not simply questioning defendant’s “business judgment.” On the contrary, an argument of this nature raises an important question as to defendant’s credibility: Would the institution or hospital be taking current action against an employee because of “old business”? A jury, after weighing all the evidence, might or might not conclude that defendant was doing exactly that. Thus, resolving the question is not the function of a court on a motion for summary judgment.
In that vein, “[a]n employer’s invocation of the business judgment rule does not insulate its decisions from all scrutiny in a discrimination case” (Weiss v JPMorgan Chase & Co., 332 Fed Appx 659, 663 [2d Cir 2009]). After all, “facts may exist from which a reasonable jury could conclude that the employer’s ‘business decision’ was so lacking in merit as to call into question its genuineness” (Dister v Continental Group, Inc., 859 F2d 1108, 1116 [2d Cir 1988]). Thus, contrary to the majority, I would not allow defendant to shield its potentially discriminatory actions from judicial scrutiny by merely uttering the words “business judgment.”
While the Court of Appeals’ construction of the City HRL in Forrest v Jewish Guild for the Blind (3 NY3d 295 [2004]) was rejected by the City Council when it enacted the Restoration Act,3 the majority nonetheless quotes Forrest’s statement that “it matters not whether the [employer’s] stated reason for [the challenged action] was a good reason, a bad reason, or a petty one. What matters is that the [employer’s] stated reason for [the action] was nondiscriminatory” (3 NY3d at 308 n 5). That proposition is dubious since the mere existence of “[a] legitimate reason for [a challenged action] ... is not always mutually exclusive of a discriminatory or retaliatory motive and thus does not preclude the possibility that a discriminatory or retaliatory motive played a role in [the challenged] decision” (Gossett v Tractor Supply Co., Inc., 320 SW3d 777, 782 [2010]). Indeed, in construing the City HRL, this Court has consistently required that a defendant employer offer a nondiscriminatory reason (and evidence to support its proffered explanation) that specifically addresses and disproves the plaintiff‘s allegations (see e.g. Carryl v MacKay Shields, LLC, 93 AD3d 589 [2012] [“Defendant . . . explained that, though (plaintiff and his coworker) shared the same title and primary responsibilities, plaintiff and his Caucasian ‘peer’ were not similarly situated”]; Bennett, 92 AD3d at 46). Here, defendant has failed to meet that burden.
As the majority acknowledges, the evidence, viewed in the light most favorable to plaintiff, shows that “seven older physicians left Montefiore involuntarily” (emphasis added). While this evidence is not in itself dispositive of the existence of age discrimination, it is certainly much more than a “collateral matter[ ]” that the majority does not wish to bother justifying. If an employer is treating employees less well because of their age, that same employer may well be paying older employees who refuse to leave less than they would be paid in the absence of age discrimination (see e.g. Murphy v American Home Prods. Corp., 159 AD2d 46, 49-50 [1990] [evidence indicating employer’s discriminatory treatment of employees other than plaintiff relevant “since such evidence is highly probative of the employer’s actual state of mind”]).
“the statistical evidence in the record concerning the compensation of other departmental chairmen tends to refute any inference that age was a factor in setting their compensation. The record shows that some chairmen older than plaintiff or around the same age were paid more than he was, while some younger chairmen were paid less.”
It is beyond cavil, however, that an employer need not engage in a consistent pattern of discrimination in order to discriminate against a particular individual on account of his or her protected status (see Brown v Henderson, 257 F3d 246, 253 [2d Cir 2001] [“whether an employer discriminates against only a subset of a protected class, or discriminates inconsistently, Title VII nevertheless protects any individual so long as that individual is mistreated because of (his protected status)”] [citation omitted]; Hodges v Rensselaer Hartfor Graduate Ctr., Inc., 2008 WL 793594, *6, 2008 US Dist LEXIS 22228, *18 [D Conn 2008] [“The failure of a decision-maker to discriminate against other members of the protected class does not give rise to an inference that the decision-maker did not discriminate against Plaintiff”]; see also Holcomb v Iona Coll., 521 F3d 130, 140 [2d Cir 2008] [the fact that the employer did not terminate another employee who was also in an interracial marriage “does not allay the suspicion that the firings were grounded in an illegitimate motive”]). Not all individuals manifest the particular traits that lead others to discriminate against them on the basis of their membership in a protected group (see e.g. Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation, at 41 [Oxford University Press 1987] [“Plessy’s (arrest) was surely arranged, because despite the allegation in the arresting officer’s affidavit that Plessy was ‘a passenger of the colored race,’ he . . . was only one-eighth black and, as his counsel later asserted, ‘the mixture of colored blood (was) not discernible’ ”]). Similarly, not all employers have an unfettered ability to act on their biases.4 Thus, what matters in an employment discrimination suit is whether a particular individual has been the victim of illegal discrimination (cf. Brown, 257 F3d at 253-254 [“what matters in the end is not how the employer treated other employees, if any, of a different (protected status), but how the employer would have treated the plaintiff had she been of a different (protected status)”]). Defendant Montefiore “may not
“[E]mployment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to a discriminatory intent” (Rosen v Thornburgh, 928 F2d 528, 533 [2d Cir 1991]).
Thus, what is not explained is often as important as what is explained. Here, plaintiff identified and defendant conceded that there was a series of employees in their 60s and 70s who ended their employment at defendant’s urging and were replaced by younger employees. For example, the 65-year-old chairman of orthopedics was, in the words of defendant, “encouraged” to leave, the director of infectious disease and the chairman of gastroenterology, both in their 60s, were “asked to leave,” and the director of pediatric endocrinology, in his late 60s, was “pushed out.”5 Despite admitting that a series of older employees left involuntarily and were replaced by younger employees, defendant did not show that all the firings were prompted by nondiscriminatory motives.6 De-
In a close case, this Court should not substitute its judgment for that of a jury (cf. Albunio v City of New York, 16 NY3d 472 [2011] [upholding a jury verdict for a plaintiff in a case that is a “closer” call]; Vivenzio v City of Syracuse, 611 F3d 98, 106 [2d Cir 2010] [“It is not the province of the court itself to decide what inferences should be drawn . . . ; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper”] [internal quotation marks omitted]; Carlton v Mystic Transp., Inc., 202 F3d 129, 134 [2d Cir 2000],
The fact that other older employees were forced to leave is also relevant to the strength or weakness of the mixed-motive case. Even if defendant genuinely believed the negative things it said about plaintiff, a jury might conclude that one element of defendant’s motivation was plaintiff‘s age.
It is also necessary to point out that the record reflects other evidence that would allow a jury to infer that the reasons proffered by defendant were not a complete explanation for its treatment of plaintiff. Robert B. Conaty, defendant’s executive vice president for operations, who reviewed annual compensation for department chairs, asserted that the “rank, longevity or professional accomplishments” of a department chair were not material to their compensation. Conaty averred that the chairman’s reputation and success, his ability “to attract quality faculty and mentor them,” along with his “ability to generate income for the Medical Center,” were factors in determining compensation.
Melman’s success as chairman of the urology department included the publication of hundreds of academic articles in prestigious medical journals, many of which were coauthored by the department’s resident physicians, bolstering the residents’ post-training professional pursuits; authoring 42 textbook chapters; expanding the department’s laboratory and research space; and teaching thousands of students and resident physicians. Foreman, defendant’s president and chief executive offi-
Finally, it bears mentioning that the motion court improperly relied on the idea that the existence of “animus” is a necessary element of a discrimination claim (Melman v Montefiore Med. Ctr., 36 Misc 3d 1216[A], 2010 NY Slip Op 52453[U], *3). On the contrary, the law has long been clear that intentional discrimination simply involves intentionally treating one person less well than another because of protected class status; it does not require evidence of animus.9
Retaliation
In addition to his discrimination claim, plaintiff also brought a claim of retaliation. To establish a retaliation claim under the City HRL, a plaintiff must make out a prima facie case that: (1)
Plaintiff testified both that his compensation was affected and that he was isolated and marginalized. In respect to the latter, the motion court simply ignored evidence in the record. Plaintiff testified, for example, that defendant’s new president refused to talk with or deal with him, and that, contrary to past practice, after plaintiff complained of discrimination, defendant no longer asked him to serve on search committees or other committees. Thus, contrary to the majority’s contention, the actions that form the basis of plaintiff‘s retaliation complaint are not merely a “continuation of the policies . . . that had prompted him to complain in the first place.”
With respect to a defendant’s actions that allegedly isolate and marginalize the plaintiff, the City HRL is clear that
“the assessment [must] be made with a keen sense of workplace realities, of the fact that the ‘chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities. Accordingly, the language of the City HRL does not permit any type of challenged conduct to be categorically rejected as nonactionable. On the contrary, no challenged conduct may be deemed nonretaliatory before a determination that a jury could not reasonably conclude from the evidence that such conduct was, in the words of the statute, ‘reasonably likely to deter a person from engaging in protected activity’ ” (Williams v New York City Hous. Auth., 61 AD3d 62, 71 [2009], supra [footnote omitted]).
It would not be difficult for a jury to believe that a person would be less likely to complain of discrimination if he knew in advance that doing so would result in isolation or marginalization such as plaintiff described. For the chair of a department of a medical center, not being able to participate in committees is a significant element of the terms and conditions of employment. Moreover, the message sent to the chair’s colleagues by the chair’s enforced nonparticipation is profoundly negative and could easily be found to be the type of retaliatory behavior that
In short, plaintiff‘s allegations of isolation and marginalization are neither “amorphous” nor benign. And they should not be regarded as an inevitable or acceptable consequence of complaining of discrimination. Defendants are free to be unhappy about being sued, but one of the core purposes of anti-retaliation law is to prevent that unhappiness from infecting the way an employee is treated. An employee who has complained of discrimination must be afforded the same full participation in the business affairs of the defendant that is afforded to an equally situated employee who has not complained about discrimination. This is especially true under the City HRL, which proscribes retaliation “in any manner” (
Finally, it is incumbent upon the members of this panel to give “full effect” to this Court’s and the Court of Appeals’ precedents (see Ortega v City of New York, 95 AD3d 125, 129 n [2012], citing Matter of Midland Ins. Co., 71 AD3d 221 [2010]). By ruling as a matter of law for defendant in this case, I believe that the majority is unjustifiably raising the evidentiary requirements to bring a claim for retaliation under the City HRL higher than this Court and the Court of Appeals have found necessary.
DeGrasse and Richter, JJ., concur with Friedman, J.P.; Acosta, J., dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered May 28, 2010, affirmed, without costs.
Notes
The approach this Court set forth in Bennett is consistent with the Court of Appeals’ recognition that “we must construe
| Year | AM Salary | AM Bonus | RG Salary | RG Bonus |
|---|---|---|---|---|
| 2004 | $352,578 | $125,000 | $211,285 | $60,000 |
| 2005 | $352,578 | $100,000 | $320,000 | $30,000 |
| 2006 | $363,156 | $100,000 | $320,000 | $40,000 |
| 2007 | $377,682 | $125,000 | $400,000 | $75,000 |
| 2008 | $377,682 | $100,000 | $450,000 | $75,000 |
| 2004 | 2008 | |
| Charges | $1,172,874 | $1,323,406 |
| Collections | $ 589,765 | $ 391,050 |
| Total RVUs | 13,116 | 8,592 |
| OR Cases | 135 | 136 |
The majority’s attempt to infer defendant’s mental state (i.e., intent) on the basis of plaintiff‘s action (or failure to act) is an inappropriate invasion of the jury’s province. Here, only a jury can make the credibility determination whether Safyer, who was deposed in this case, has been dismissive of plaintiff. Defendant’s characterization of Safyer’s intent is inappropriate, especially in light of plaintiff‘s evidence of Safyer’s animus against him.