Lead Opinion
OPINION OF THE COURT
Plаintiff 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,
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.,
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 actiоn; 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-
*114 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,
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 plaintiffs.
Assuming, as we do, that plaintiff has established “the minimal prima facie case” (Broome v Keener,
Turning first to the issue of RG’s compensation, it is undisputed that this physician’s demаnds 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.”
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 plaintiffs and (2) it was only at the end of 2008, the last year documented in the record, that RG’s total compensation first exceeded plaintiffs.
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, plaintiffs 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.
“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 plaintiffs compensation, to consider the deficiencies of his performance as a departmental chairman, as well as his achievements. A number of the perceived deficiencies in plaintiffs 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 plaintiffs 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 аnd recruitment efforts seemed to have stalled; recruitment efforts should have focused on building oncology and endoscopy services . . . [but plaintiffs] interest is in hiring a uro-gynecologist.”
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 plaintiffs 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,
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 plaintiffs chairmanship; and (3) the stagnation or decline of the monetary value of plaintiffs 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.
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 plaintiffs fault, and, in any event, outweighed by plaintiffs 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.,
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.,
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 plaintiffs burden of setting forth sufficient evidence to go before the trier of fact” (Sogg v American Airlines,
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.
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 conflated with the “frequently . . . onerous” showing required to defeat a well supported summary judgment motion (
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.
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.
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,
The foregoing establishes that Montefiore is entitled to summary judgment when plaintiffs 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
Recognizing the mandate of the LCRRA to construe the NYCHRL as liberally as reasonably possible in favor of plaintiffs (see Albunio,
Notwithstanding that, under the NYCHRL, a plaintiff may prevail on a mixed-motive theory, and that, under such a theory, he or she need not raise an issue as to the falsity or irrelevance of the reason the employer proffers for the challenged action, Montefiore is still entitled, on this record, to summary judg
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,
Finally, plaintiffs claim for retaliation was also correctly dismissed. Plaintiff first suggested the possibility that Monte
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 plaintiffs 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 Administrative Code § 8-107 (7), namely, conduct “reasonably likely to deter a person from engaging in protected activity” (emphasis added).
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 plaintiffs 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.
Notes
. In pertinent part, Administrative Code § 8-107 (1) (a) makes it unlawful for an employer “because of the actual or perceived age ... of any person, ... to discriminate against such person in compensation or in terms, conditions or privileges of employment.” In pertinent part, Administrative Code § 8-107 (7) makes it unlawful “for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter.” We note that plaintiff does not assert any claim under the New York State Human Rights Law (Executive Law § 296).
. The general rule is that an employee bringing a claim for unlawful discrimination in compensation must show that “he is a member of a protected class and . . . was paid less than similarly situated nonmembers of the class” (Shah v Wilco Sys., Inc.,
. By contrast, plaintiff admitted that he never threatened to leave if Montefiore refused to grant him a requested raise.
. By his own admission, plaintiff does not perform robotic surgery.
. The year-end compensation figures for plaintiff (AM) and RG for the years 2004 through 2008 are as follows:
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
. We note that plaintiff’s opening brief misleadingly states that Montefiore gave “greater compensation to younger physicians [plural] who reported] to Melman” (emphasis added). In fact, as pointed out in Montefiore’s brief, uncontroverted evidence establishes that RG was the only one of plaintiff’s subordinates who ever earned more than plaintiff did during the five-year period documented in the record. Commendably, the assertion that more than one of plaintiffs subordinates earned more than he did, although not expressly withdrawn, is not repeated in plaintiffs reply brief.
. Plaintiffs 2008 figures were: charges, $1,323,406; collections, $391,050; total RVUs, 8,592; OR cases, 136. RG’s 2008 figures were: charges, $2,294,820; collections, $532,818; total RVUs, 15,013.05; OR cases, 250.
. Although the point is not determinative, we note that plaintiff does not quantify the prevailing level of compensation for physicians in comparable positions, which is presumably the amount he believes he should have been paid.
. As previously noted, Montefiore already had uro-gynecological expertise in its OB/GYN department.
. The follоwing are the figures for plaintiffs charges, collections, total RVUs, and OR cases for the years 2004 and 2008:
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 dissent takes the position that plaintiff, without substantially controverting the truth of the deficiencies of his job performance adduced by Montefiore, has raised a triable issue by asserting that these matters were “stale” by the time of the complained-of adverse actions. In our view, the shortcomings to which Montefiore points are sufficiently close in time to the adverse actions that plaintiff cannot raise a triable issue merely by asserting that the matters were “stale.” We further note that, on an appeal from an order granting summary judgment, the dissent’s position that we should reverse cannot be justified by its citation to conclusory allegations in the complaint (such as that Foreman “[e]xaggerat[ed] and distort[ed]” plaintiffs shortcomings and “[f]ail[ed] to provide [him] with the same benefits” supposedly afforded other departmental heads). In opposing a summary judgment motion, a plaintiff is not entitled to rely on the allegations of the complaint; he or she is required to come forward with admissible evidence.
. Viewing the record in the light most favorable to plaintiff, there appears to be admissible evidence that seven older physicians left Montefiore involuntarily. Specifically, Foreman testified at his deposition that the hospital urged these physicians to leave or declined to renew their contracts. Of these seven physicians, however, only two brought age discrimination lawsuits against Montefiore, and both suits were dismissed on summary judgment (see Saenger v Montefiore Med. Ctr.,
. The dissent baselessly accuses us of “implying that the ‘exoneration’ of [Montefiore] in [Saenger and Trieger] should guide our reasoning in this case.” We imply no such thing. What we do say is that those two cases, in which Montefiore was found to be entitled to dismissal of other physicians’ discrimination claims against it as a matter of law, do not raise any issue of fact as to whether Montefiore discriminated against plaintiff.
. By no means do we suggest that a claim under the NYCHRL must be supported by statistical data or analysis showing a pattern of discrimination. Here, however, in the absence of any other admissible evidence of discrimination to support his claim, plaintiffs failure to offer statistical evidеnce is fatal.
. In fact, 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. For example, in the period ending June 23, 2007, the chairman of the dentistry department, who is only a year younger than plaintiff, made almost a million dollars more than he, while the chairman of the oncology department, who is 12 years younger than plaintiff, made $27,000 less. As of June 2007, plaintiffs compensation was $144,168 below the average compensation of older chairmen (born in 1942 or earlier) but only $80,635 less than the average compensation of younger chairmen (born in 1945 or later).
. One of these remarks was made at a board meeting at which two of plaintiffs subordinates were making a presentation on surgical techniques. Foreman, in introducing the younger physicians, referred to them as part of the urology department’s “wonderful young faculty.” The other remark was made in the course of a lengthy interview conducted by the American Hospital Association, in which Foreman, discussing his efforts to put in place new leadership for Montefiore before his own retirement, stated: “So over the past year we put in place a whole series of moves including having [the previous chairman of the board] step down, having him replaced by a young trustee with enthusiasm and vigor and energy, and then that trustee has led a search to identify my successor.”
. While we do not question the sincerity of plaintiffs expressions of distress, he seems, by his own account, to be unusually prone to interpret honors accorded to others as disrespect to himself and to react emotionally to such perceived slights. For example, plaintiff highlights as one of Montefiore’s sins its choice of RG, rather than himself, to represent the urology department on a public relations video shown in the hospital’s main entrance. Plaintiff testified that he is so “outraged” by his omission from the video that “I just walk past it and I don’t watch it.” This is presumably why plaintiff was unaware that the video featured other physicians of his approximate age, as detailed by Conaty. Conaty also explains that RG was chosen to represent urology in the video because, as previously noted, he was the only Montefiore physician able to perform robotic prostate surgery, a technique that has “revolutionized the treatment of prostate cancer.”
. In the letter of January 4, 2007, plaintiff claimed that his compensation was “beneath the level of my professional accomplishments,” asserted that he could “reasonably conclude that my age has played a role in your unwarranted discrimination,” and asked Foreman to “allay this fear.”
. In fact, plaintiff complained at his deposition that Safyer met with him only once during Safyer’s first year as president and, on that occasion, “kept looking at his watch and saying he had to go.”
. We are at a loss to understand the dissent’s statement that “[t]he fact that plaintiff has not attended [Safyer’s] meetings [with departmental chairs] is, at best, evidence that there have been fewer opportunities for plaintiff and [Safyer] to meet.” That plaintiff does not dispute that he failed to attend 12 meetings with Safyer to which he was invited establishes not that plaintiff had “fewer opportunities” to meet with Safyer but that plaintiff had 12 opportunities to meet with Safyer and, for undisclosed reasons of his own, chose not to take advantage of any of them. Plaintiffs claim that Safyer refused to meet with him, when plaintiff himself could not be bothered to attend 12 meetings with Safyer to which he was invited, succinctly illustrates the borderline frivolous nature of this action. In essence, plaintiff cannot coherently complain that Safyer refused to meet with him when the record establishes that plaintiff spurned 12 invitations to meet with Safyer.
. Although the dissent points out that “erosions of [an employee’s] authority” may constitute retaliation, plaintiff does not identify any evidence in the record that Montefiore reduced his authority after he began complaining that his rights had been violated.
. The Court of Appeals’ decision in Albunio v City of New York (
Dissenting Opinion
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 non-moving party. In the context of an action brought pursuant to the New York City Human Rights Law, Administrative Code of the City of New York § 8-101 et seq. (City HRL), the court is required to recognize that discrimination is not only prohibited from being the entire reason for adverse action, but also prohibited from being any part of the reason for adverse action (see Administrative Code of City of NY § 8-107). Here, the motion court resolved factual issues in favor of the moving party. These issues include whether defendant engaged in retaliation against plaintiff for his protesting its alleged age discrimination against him. I therefore respectfully dissent from the majority’s decision to affirm the grant of summary judgment.
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. (
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 plaintiffs 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” (Administrative Code § 8-107 [1] [a]). Notwithstanding the majority’s undue emphasis on the compensation aspect of plaintiffs age discrimination claim, the City HRL, by its own terms, was enacted to protect more than just dollars and cents.
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 thе 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.,
While the Court of Appeals’ construction of the City HRL in Forrest v Jewish Guild for the Blind (
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 he paid in the absence of age discrimination (see e.g. Murphy v American Home Prods. Corp.,
“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,
“[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.”
In a close case, this Court should not substitute its judgment for that of a jury (cf. Albunio v City of New York,
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 plaintiffs 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 professiоnal 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.,
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 testifiеd, 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 plaintiffs 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 non-retaliatory 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, plaintiffs 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 аfforded 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” (Administrative Code § 8-107 [7]). It is of no consequence that the harm suffered by the plaintiff may not have been significant, as the “ ‘degree of harm suffered by the individual “goes to the issue of damages, not liability” ’ ” (Farrugia,
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,
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.
. One of those routes — mixed motive — describes a circumstance of “partial” discrimination, which is proscribed under the City HRL since, “[u]nder Administrative Code § 8-101, discrimination shall play no role in decisions relating to employment, housing or public aсcommodations” (id. at 40, quoting Williams v New York City Hous. Auth.,
The approach this Court set forth in Bennett is consistent with the Court of Appeals’ recognition that “we must construe Administrative Code § 8-107 (7), like other provisions of the City’s Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v City of New York,
. This is also true of federal law (see e.g. Wanamaker v Columbian Rope Co.,
. See Bennett,
. This is particularly so in the context of a large institution where there may be checks (i.e., a board of overseers) on an employer’s powers.
. Given the concession made by defendant’s representative in the course of his deposition, I am at a loss as to how the statements made by plaintiff concerning the various physicians who were terminated involuntarily constitute hearsay. In аny event, to the extent those statements are indeed hearsay, they are admissible to defeat a motion for summary judgment since other evidence has been offered to support plaintiff’s claim of discrimination (see Schwaller v Squire Sanders & Dempsey,
. The majority contends that the grant of summary judgment dismissing cases against defendant in Saenger v Montefiore Med. Ctr. (
. The majority quotes Forrest stating that “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” (
. Conaty’s denial that he thought that a January 4, 2007 letter from plaintiff to Foreman was a complaint of age discrimination could have been viewed by a jury as disingenuous, and therefore could have allowed a jury to be doubtful of Conaty’s proffered explanation for defendant’s conduct. The letter says explicitly that plaintiff was then in a position to “reasonably conclude that my age has played a role in your unwarranted discrimination.”
. For example, in United States v Wagner (
. The majority notes that plaintiff did not dispute defendant’s representation that he failed to attend all the meetings that Dr. Steven Safyer has held since he succeeded Foreman as president. The fact that plaintiff has not attended those meetings is, at best, evidence that there have been fewer opportunities for plaintiff and defendant to meet. It does not prove that defendant is not avoiding plaintiff.
The majority’s attempt to infer defendant’s mental state (i.e., intent) on the basis of plaintiffs 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 plaintiffs evidence of Safyer’s animus against him.
. Notably, in Albunio, this Court and the Court of Appeals upheld a jury verdict in favor of a plaintiff (Albunio) who took no explicit action — unlike plaintiff in this case — to earn the animosity of her employer (