Lawrence v. Nyack Emergency Physicians (Full Text)
rsiUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PETER LAWRENCE, M. D. ,
Plaintiff,
06 Civ. 3580
OPINION
NYACK EMERGENCY PHYSICIANS, P.C.,
DR. IRA MEHLMAN, As Aider and
Abettor,
Defendants
A P P E A R A N C E S :
ELECTRONICALLY FILED
Attorneys for Plaintiffs
SUSSMAN & WATKINS
40 Park Place
P.O. Box 1005
Goshen, New York 10924
By: Michael H. Sussman, Esq.
Attorneys for Defendants
KEANE & BEANE, P.C.
445 Hamilton Avenue, 1 5 ~ ~
Floor
White Plains, New York 10601
By: Edward F. Beane, Esq.
Donna E. Frosco, Esq.
S w e e t , D . J .
Defendants Nyack Emergency Physicians, P. C.
(“NEP”) , Dr. Ira Mehlman D r . Mehlman”) (collectively, the
“Defendants”) have moved pursuant to Rule 56, Fed. R. Civ.
P., to dismiss the discrimination complaint of plaintiff
Dr. Peter Lawrence (“Dr. Lawrence” or the ‘Plaintiff”) .
Upon the facts and conclusions set forth below, the motion
is granted, and the complaint dismissed.
The unjustified letter of reprimand issued by Dr.
Mehlman does not constitute a racially motivated adverse
employment action under the unfortunate circumstances
revealed by the consolidated factual statements of the
parties.
I. BACKGROUND
A .
P r i o r P r o c e e d i n g s
The complaint in this action was filed by Dr.
Lawrence on May 11, 2006.
It alleged claims of race
discrimination under 42 U.S.C. § 1981(a) and Title VII of
the Civil Rights Act of 1964 (as amended), as well as under
the New York State Executive Law Section 296.
Discovery proceeded and the submission of
materials relating to the instant motion was completed on
February 21, 2008. The action was reassigned to this Court
on June 5, 2009.
B. The Facts
The facts are set forth in the Defendants’
Statement of Undisputed Facts Pursuant to Local Rule 56.1
(“Defendants’ Statement”), the Plaintiff’s Response to
Defendants’ Statement of Undisputed Facts Pursuant to Local
Rule 56.1 and Counterstatement of Facts (“Plaintiff’s
Response”), Defendants’ Reply to Plaintiff’ s Response to
Defendants’ Statement of Undisputed Facts Pursuant to Local
Rule 56.1 and Response to Plaintiff’s Counterstatement of
Facts
(“Defendants’ Reply”) ,
and
the
accompanying
affidavits and declarations. Despite the details thus set
forth and the parties’ contentions with respect to
admissibility, the material facts are not in dispute except
as noted below.
NEP (formerly known as Nyack Principal’s Group,
Inc.) is a New York professional corporation that provided
management and professional medical services for the
Emergency Department (the “ED”) at Nyack Hospital.
In
September or October, 2002, NEP was retained by Nyack
Hospital to manage the ED and provide emergency medical
services at the hospital.
The contract between NEP and
Nyack Hospital was eventually ended by mutual agreement at
the initiative of NEP due to financial considerations.
Dr. Mehlman is a medical doctor licensed to
practice medicine in the State of New York, was employed by
NEP, and served as Director of the ED at Nyack Hospital.
Dr. Mehlman is white.
Dr. Lawrence, an African-American, is a medical
doctor and also has a law degree. He was employed by NEP
as an emergency room physician. From the inception of its
contract with Nyack Hospital in 2002 until the end of the
contract on October 31, 2006, NEP employed Dr. Lawrence as
a staff physician in the ED.
Dr. Joseph Degioanni (“Dr. Degioanni”) is a
medical doctor serving as President of NEP. He is board
certified in Aerospace Medicine and Emergency Medicine.
During the events from which this lawsuit arises,
David Freed (“Freed”) served as Chief Executive Officer of
Nyack Hospital. Dr. John Pellicone (“Dr. Pellicone”) was
Chief Medical Officer of the Nyack Hospital Medical Staff
and oversaw quality control issues at the hospital,
including management of the ED.
Dr. Richard King (“Dr.
King”) was President of the Medical Executives of Nyack
Hospital.
Upon assuming operations of the Nyack Hospital
ED, NEP initially hired the majority of ED physicians then
employed in the Nyack Hospital ED, including Dr. Lawrence.
NEP also recruited an outside physician, Dr. Chachkes, to
serve as the Director of the ED.
Dr. Chachkes was
subsequently terminated at the request of Freed.
Upon the departure of Dr. Chachkes, a search for
a new permanent Director was undertaken, and Dr. Lawrence
was appointed as Interim Director of the ED. Freed agreed
to the appointment of Plaintiff as Interim Director. At
the request of Dr. King, Plaintiff also interviewed for the
permanent position of Director of the ED.
Although Dr. Degioanni did not make any
recommendations concerning who should be hired as the
permanent Director, he did inform Freed that Plaintiff “had
done a good job” in the ED. Ex. V to Decl. in Supp. of
Defs.’ Mot. for S u m . J. (“Beane Decl.”) at 39:23-40:21.
Dr. Degioanni presented a number of candidates, including
both Dr. Mehlman and Dr. Lawrence, to a selection committee
appointed by Nyack Hospital. The decision as to whom NEP
should hire as the permanent Director of the ED was made by
the selection committee.
During his interview, Dr. Lawrence informed the
selection committee that he had come to the interview
because of his friendship with Dr. King and that ‘if the
hospital wants me to be the director, I would be glad to do
that, but my personal wish is that I don’t want to do that
job.”
Ex. 3 to Affirm. in Resp. to Defs.’ Statement of
Undisputed Facts Pursuant to Local Rule 56.1 (“Sussman
Aff . ” ) at 41: 15-24.
Dr. Mehlman had not been employed previously at
Nyack Hospital at the time he applied for the position of
Director of the ED.
Following the interviews, Freed informed Dr.
Degioanni of the committee’s selection of Dr. Mehlman as
the permanent Director of the Nyack ED, and NEP thereafter
hired Dr. Mehlman as such.
Dr. Mehlman commenced his employment as Director
of the Nyack ED in late autumn 2003. From the beginning of
Dr. Mehlman’s employment by NEP, his intention, which he
communicated to NEP, was to stay at Nyack Hospital for only
two to three years.
Dr. Mehlman eventually served as
Director of the ED until November 2005, at which time a new
ED Director was identified and hired.
Thereafter, Dr.
Mehlman served as Associate Director through January 2006
and then as a staff physician from January 2006 until early
November 2006.
Dr. Lawrence testified that Dr. Mehlman, as the
Director of the ED, was his “boss” and had administrative
responsibility for the ER, including the assignment of
shifts to the ED staff physicians. Sussman Aff. Ex. 3 at
216:2. In assigning shifts, Dr. Mehlman solicited from the
ED staff physicians their preferences concerning shifts and
generated a matrix to be completed by each ED physician
concerning his or her preferences for (a) number of shifts
and (b) times of shifts.
Dr. Lawrence routinely requested to work only day
shifts and no Sundays.
During Dr. Mehlman’s tenure as
Director of the ED, Dr. Lawrence was the only doctor who
requested that he not be assigned night shifts or any
shifts on Sundays.
According to Dr. Mehlman, Dr.
Lawrence’s
requests were incompatible with staffing
requirements for the ED and unfair to the other staff
physicians. However, Dr. Lawrence was not the only staff
physician who did not have all of his or her requests
concerning shifts granted.
Dr. Mehlman did not assign six shifts in
consecutive days to the same staff physician if such
scheduling could be avoided, as each shift is 12 hours and
such an assignment could raise safety issues. On occasion,
however, Dr. Mehlman did assign Dr. Lawrence to six
consecutive shifts.
According to Dr. Mehlman, prior to the incident
that occurred in the evening of May 26, 2005, from which
this lawsuit originates (the “May 26 Incident”), Dr.
Lawrence never complained about the assignment of shifts, a
contention denied by Dr. Lawrence.
Doctors employed by NEP in the Nyack ED typically
worked 13 to 18 shifts per month.
According to Dr.
Lawrence, Dr. Mehlman reduced his shifts per month from 17-
23 to 8-11. However, Dr. Lawrence never submitted written
complaints of any kind to Dr. Mehlman’s superiors at NEP
concerning scheduling issues.
After Dr. Mehlman stepped down as Director of the
ED, Dr. Lawrence requested fewer shifts because he was also
employed in the emergency department of another hospital.
According to Dr. Lawrence, he worked in the emergency rooms
of both Phelps Memorial Hospital and Passcack Valley
Hospital while employed at Nyack Hospital due to the
reduction in the number of shifts to which he was assigned
at Nyack Hospital.
Dr. Lawrence also recognized that in addition to
his authority to assign shifts to staff physicians in the
ED, Dr. Mehlman possessed the authority to set policies for
the ED with which Dr. Lawrence was required to comply.
During the time Dr. Mehlman was Director, there
existed a policy concerning “linkage” between doctors and
mid-level providers which was communicated to the ED staff.
A mid-level provider is also known as a “physician
extender,” and is a physician assistant or nurse
practitioner.
As Director, Dr. Mehlman promulgated
additional policies emphasizing this “linkage” requirement.
Dr. Lawrence has testified that he was aware of the various
policies
concerning
mid-level
providers/physician
assistants issued by NEP prior to May 26, 2005.
Dr. Lawrence has alleged that during his time as
Director, Dr. Mehlman made several racially offensive
statements, including “My father did a lot for Black
people;” “I ran into John Coltrane’s nephew this weekend;”
“We’ve got good doctors here – we have Dr. Lawrence, the
good-looking black guy that can dance, and Dr. Rymond, who
went to Harvard;” “Dr. Lawrence works on Jamaican time.
Screw Jamaican time.”
Pl.’s Aff. in Resp. to Defs.’
Statement of Undisputed Facts Pursuant to Local Rule 56.1
(“Lawrence Aff . ” ) ¶ 24.
Dr. Mehlman has denied making
these statements. Dr. Lawrence, however, never asked Dr.
Mehlman to refrain from making these comments prior to the
May 26 Incident, although Dr. Lawrence has contended that
he told Dr. Degioanni in June 2004 about his belief that
Dr. Mehlman harbored racial animus towards him.
Dr.
Lawrence also testified that he informed Dr. King of his
belief that Dr. Mehlman was discriminating against him on
the basis of race.
Dr. Degioanni testified that he was not aware of
any conflict between Dr. Lawrence and Dr. Mehlman prior to
the May 26 Incident. Dr. Degioanni also does not recall
any complaints by Dr. Lawrence or any other physician in
the ED concerning Dr. Mehlman’s conduct prior to May 2005.
Dr. Lawrence, however, has contended that in addition to
his complaints to Dr. Degioanni, other doctors complained
in meetings about Dr. Mehlman’s unresponsiveness to their
concerns about the operations of the ED.
As admitted by Dr. Lawrence, the Complaint was
incorrect when it asserts that Plaintiff was the only
African-American employed by NEP in the Nyack Hospital ED.
In fact, Dr. Sam Jones (“Dr. Jones”) was an African-
American physician employed in the ED on the date of the
Complaint.
Dr. Augustine Alifo was another African-
American physician offered employment in the ED as
Assistant Director during the time Dr. Lawrence was
employed by NEP.
Dr. Deborah White, an African-American
woman, also was offered employment in the ED during
Plaintiff’s employment with NEP.
The May 2 6 , 2005 I n c i d e n t
On the evening of May 26, 2005, an incident
occurred in the Nyack Hospital ED involving a patient who
had suffered a miscarriage. Dr. Lawrence was a physician
on duty that day in the ED from 12:OO noon to 12:OO a.m.
Another physician, Dr. Mark Khilnani D r . Khilnani”) was a
physician on duty in the ED from 7:00 p.m. to 7:00 a.m. the
next morning.
Dr. Khilnani, a recent medical school
graduate, was less experienced than Dr. Lawrence and is not
African-American. Dr. Mehlman was not working in the ED on
the evening of May 26, 2005.
In a statement dated June 16, 2005, Dr. Lawrence
stated that he was notified at 6:35 pm that the patient had
arrived in the ED.
During his deposition, however, Dr.
Lawrence contended the notification was after 7 p.m. After
being notified of the patient’s arrival, Dr. Lawrence
advised Chris Genovese (“Genovese”), the nurse who informed
him of the presence of the patient, to contact a mid-wife
from the Obstetrics Department and to place the patient’s
chart on the board to be seen by the next available
physician. According to Dr. Lawrence, Genovese stated that
the patient did not need to be seen immediately.
Dr.
Lawrence also asserts that there was no requirement that a
patient be seen by a particular ED physician.
The patient remained in the ED during the
remainder of Dr. Lawrence’s shift. The patient’s emotional
state apparently degraded during the time she was in the
emergency room, resulting in her call to the police
alleging that she had been assaulted in the ED.
In
response, a police officer was dispatched to the Nyack
Hospital ED.
At the time of the police officer’s arrival in
the ED, Dr. Lawrence was the ED physician on duty with the
most seniority. According to Dr. Lawrence, he was busy
caring for patients when the officer arrived in the ED, and
Dr. Khilnani was physically closer to the officer.
Dr.
Lawrence testified that he eventually approached the
officer, who had not asked for assistance, and inquired
into the purpose of his presence.
In response, Dr.
Lawrence received what he characterized as a “vague” answer
that did not identify the patient as the reason for the
police presence. Lawrence Af f . ¶ 5. However, the officer
did state that he had received a call to come to the ED and
asked Dr. Lawrence to speak with “someone in charge.”
Beane Decl. Ex. U at 108:15-18. Dr. Lawrence referred the
officer to Genovese and told her to let him know if he or
the attending physician could do anything to help.
Dr.
Lawrence did not see the patient during the remainder of
his shift.
Although the patient was seen by a mid-wife from
the Obstetrics Department, as directed by Plaintiff, as
well as a physician’s assistant, no ED physician interacted
with the patient until the early morning hours of May 27,
2005.
On May 27, 2005, Dr. Degioanni learned of the
previous evening’s incident in the ED via a phone call from
Freed.
Dr. Mehlman was first informed of the May 26
Incident by Freed as well. On May 27, 2005, Freed removed
the Dr. Mehlman from his clinical duties to confront him
about the incident. This interruption of clinical duties
was a unique event.
During the conversation, Freed
specifically identified Dr. Lawrence as someone involved in
the May 26 Incident. Dr. Mehlman informed Freed that he
had not been present in the ED during the previous evening,
that he did not know why Plaintiff had not seen the patient
in question, but did note that, although it was important
for the patient to be seen for humanistic and other
reasons, the patient may not have presented a medical
emergency and Dr. Lawrence may have been busy with more
critical patients.
Dr. Mehlman admitted that, after being informed
of the May 26 Incident, he must have spoken with Jessica
O’Brien (“O’Brien”) at some point about her report of the
incident, but could not recall any part of that
conversation.
Dr. Mehlman could not recollect speaking
with the midwife on the case or with the obstetrician on
call that night, Dr. Nicholas Klein, who supervised the
midwife attending to the patient.
Following his discussion with Freed, Dr. Mehlman
sent an e-mail to Dr. Lawrence on May 27, 2005, seeking
information concerning the events of the previous evening
and stating though there had not been a medical emergency
there
was
a
“humanistic,
social,
litigious
and
administrative emergency.” Sussman Aff. Ex. 1. On May 28,
2005, Dr. Mehlman again e-mailed Dr. Lawrence concerning
the events of the evening of May 26, 2005, to convey his
concern that Dr. Lawrence did not understand the severity
of the situation. Dr. Lawrence considered Dr. Mehlman’ s
May 27, 2005 e-mail to constitute criticism of his actions.
The Complaint did not allege that Dr. Mehlman blamed Dr.
Lawrence for any prior problems in prior cases.
According to Dr. Lawrence, he responded to both
of Dr. Mehlman’s e-mails in a May 29, 2005 e-mail in which
he referred to recommendations he had made for managing the
ED and suggested that Dr. Mehlman contact Genovese or Dr.
Khilnani. Whether or not this e-mail was responsive to Dr.
Mehlman’s e-mails is an issue of fact.
However, it is
undisputed that Dr. Lawrence never spoke with Dr. Mehlman
about the May 26 Incident.
Dr. Lawrence forwarded the e-mails to other
individuals, thereby disclosing their contents, and
discussed the May 26 Incident and e-mails from Dr. Mehlman
with other members of the group in addition to NEP and
Nyack Hospital personnel.
Dr. Lawrence also posted a document in the ED
which presented two questions to the staff of the ED
concerning the May 26 Incident:
RE:
GROUP
CUSTOM AND PRACTICE IN NYACKS PRINCIPALS
FACTS :
On May 26, 2005, at around 18:35PM,
Assistant Nurse Manager, Chris Genovese RN,
informed me of a patient, M.P., that may have
miscarried.
I responded that I could not see
this patient because I was currently managing
five (5) active cases. I asked and was told that
the patient was stable. I then told her to put
the patient in the Gyn room, call the OB midwife,
and put the patient up “next” to be seen, by the
“next” available provider.
The OB midwife saw the patient promptly.
PA
Jessica O’Brien, a MLP, saw the patient when she
came on shift. Dr. Khilnani was the 7P-7A doctor
and Nathaniel Silverberg MD, was going off as the
7A-7P doctor. I was on the 2P-12MN shift.
P.A. Jessica O’Brien did not endorse the case to
me.
I was never asked to see the patient.
Assistant Nurse Manager Chris Genovese never
asked me to get involved in any issues involving
the case.
QUESTION :
facts.
On the basis of these undisputed
1) Under current and existing custom and
practice patterns, was Dr. Lawrence physician of
record and the responsible physician for this
patient on the facts stated? Please sign in the
space below and answer ‘Yes’ or ‘No’ beside your
signature.
2) Are you aware of any rules or regulations in
existence at the time that would require Dr.
Lawrence to be the responsible physician, or the
physician of record, in this case, given the same
set of facts? Please sign in the space below and
answer “yes” or “no” beside your signature.
Lawrence Aff. Ex. 1. Eleven individuals, including eight
doctors, signed “No” beneath each question.
No doctor
signed ‘Yes’.
All the emergency room doctors except Dr.
Mehlman signed “No”.
On June 8, 2005, Dr. Lawrence wrote to the Chief
of the Medical Staff, Dr. Howard Feldfogel
(“Dr.
Feldfogel”) accusing Dr. Mehlman of orchestrating the facts
in a manner negative to him and harboring racial animosity
towards him. Dr. Lawrence also requested the convening of
an emergency peer review of the relevant patient.
According to Dr. Lawrence, the Director and Assistant
Director of Peer Review, Dr. Clement Osei (“Dr. Osei”) and
Dr. Arthur Kozin (“Dr. Kozin”), respectively, and Dr.
Lawrence appeared, as scheduled, for peer review. Freed
then arrived and stated that peer review was cancelled,
that the problem was solved, and there was no need for peer
review. At no time did Dr. Degioanni request peer review
of the May 26 Incident.
During his employment with NEP, Dr. Lawrence was
aware that Nyack Hospital officials had direct say in the
manner in which he performed his job, and if he did
something that displeased the hospital management, such
displeasure would be communicated to him either directly or
through the ED Director. Such situations arose with other
NEP physicians, not only Dr. Lawrence. In those instances,
Dr. Mehlman would issue, after prior review, a letter
concerning deficiencies in the employee’s conduct to be
included in the employee’s file. Dr. Degioanni had also,
on occasion, issued letters to other ED staff physicians
which were not enforced, such as a letter of termination.
Following the May 26 Incident, Freed directed Dr.
Mehlman to issue a written reprimand to Plaintiff.
Dr.
Mehlman issued a letter of reprimand to Plaintiff dated
June 9, 2005 (the “June 9 Letter”).
According to Dr.
Mehlman, it was “unfathomable” that the senior doctor in
the department would not become involved when a situation
had deteriorated to the point of police involvement but
would instead take the police officer to a nurse manager.
Beane Decl. Ex. E. Dr. Degioanni agreed with the reprimand
because of Dr. Lawrence’s refusal to admit that he had any
amount of responsibility whatsoever for the May 26
Incident.
Dr. Mehlman did not reprimand any of the other
physicians on the same shift as Dr. Lawrence.
The June 9 Letter had no impact on Plaintiff’s
compensation, benefits, privileges or responsibilities as a
staff physician in the Nyack Hospital ED although,
according to Dr. Lawrence, he continued to receive fewer
shifts thereafter.
Dr. Lawrence testified that his objection to the
June 9 Letter is not that it was issued only to him, rather
than to both him and Dr. Khilnani, but that he was
criticized and assigned any responsibility for a situation
in which he was not involved. Dr. Lawrence testified that
he would have the same objection to the June 9 Letter if it
had also been issued to the other doctors on duty the
evening of May 26, 2005.
The June 9 Letter was subsequently rescinded by
Dr.
Pellicone following the receipt of additional
information from other staff members at the ED, and no such
letter is now contained in the files of Nyack Hospital.
On July 6, 2005, Dr. Degioanni wrote, in a letter
to Dr. Lawrence regarding the May 26 Incident (the “July 6
Letter”): “As an ED doctor, you must be involved in patient
issues as soon as possible and proactively.
As an ED
doctor, it is your responsibility to be aware of the
medical, administrative and humanistic needs of the
patients at all times.” Beane Decl. Exh. F. The letter
went on to state, “I need to know that on a going forward
basis you are wiling and able to abide by Dr. Mehlman’s
instructions, and that you are willing and able to follow
standard of care procedures expected of an ED doctor as
discussed in this letter.” Id. The letter also requested
that Dr. Lawrence agree to the terms of the letter by
signing it, which Dr. Lawrence refused to do.
Dr. Degioanni issued the July 6 Letter because he
felt Dr. Lawrence was unwilling to be responsive to the
concerns of NEP and Nyack Hospital and took neither
criticism nor input well.
Dr. Degioanni did not send a
similar letter to any other doctor present in the ED during
the evening of May 26, 2005.
Following communications by Dr. Lawrence with
Freed and Dr. Pellicone, the July 6, 2005 letter written by
Dr. Degioanni to Dr. Lawrence was never enforced or
otherwise acted upon.
NEP did not pursue requiring Dr.
Lawrence to sign the letter and did not discipline Dr.
Lawrence in any manner for his failure to sign except,
according to Dr. Lawrence, to continue the reduction in his
shifts.
On July 25, 2005, Dr. Khilnani wrote in a letter
to Dr. Mehlman, “I don’t feel that Dr. Lawrence should be
held accountable for any deleterious actions that may have
occurred from the treatment and disposition of the
infamous, landmark gyn-pa case. I am not shocked that you
believed that Dr. Lawrence was responsible for the case, as
you were not present that night, you were not feeling the
pulse of the emergency room and the severity of the cases
that Dr. Lawrence and myself were handling, and perhaps you
did not have complete information at your disposal when you
formed your opinion.” Lawrence Aff. Ex. 6.
Prior to filing the Complaint, Dr. Lawrence
timely filed a complaint with the United States Equal
Employment Opportunity Commission (“EEOC”) . The Defendants
denied the claims set forth in the EEOC complaint and the
complaint was dismissed via a Dismissal and Notice of Right
to Sue letter issued by the EEOC on or about February 24,
2006.
11. DISCUSSION
A.
The Applicable Standards
1.
Summary Judgment
Summary judgment is granted only where there
exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d
329, 338 (2d Cir. 2004). The courts do not try issues of
fact on a motion for summary judgment, but, rather,
determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-
52 (1986).
“The party seeking summary judgment bears the
burden of establishing that no genuine issue of material
fact exists and that the undisputed facts establish [its]
right to judgment as a matter of law.” Rodriguez v. City
of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In
determining whether a genuine issue of material fact
exists, a court must resolve all ambiguities and draw all
reasonable inferences against the moving party. – See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18
(2d Cir. 2002). However, “the non-moving party may not
rely simply on conclusory allegations or speculation to
avoid summary judgment, but instead must offer evidence to
show that its version of the events is not wholly
fanciful.” Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.
1999) (internal quotes omitted); Fletcher v. Atex, Inc., 68
F.3d 1451, 1456 (2d Cir. 1995) (“Finally, mere conclusory
allegations or denials in legal memoranda or oral argument
are not evidence and cannot create a genuine issue of fact
where none would otherwise exist.” (internal quotes and
citation omitted)). Summary judgment is appropriate where
the moving party has shown that “little or no evidence may
be found in support of the nonmoving party’s case. When no
rational jury could find in favor of the nonmoving party
because the evidence to support its case is so slight,
there is no genuine issue of material fact and a grant of
summary judgment is proper.” Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.
1994) (citations omitted).
Where a claim involves a subjective component,
such as racially discriminatory intent, “there must be
solid circumstantial evidence to prove plaintiff’s case” in
order to establish a material issue of fact. Verri v.
Nanna, 972 F. Supp. 773, 783 (S.D.N.Y. 1997).
–
2 .
Title VII Claims
“Title VII’ s core substantive anti-discrimination
provision makes it an unlawful employment practice . . . to
discriminate against any individual with respect to the
compensation,
terms,
conditions,
or
privileges
of
employment, because of such individual’s race, color,
. .
religion, sex or national origin .
. ” Kessler v.
Westchester County Dep’t of Social Servs., 461 F.3d 199,
206 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-2(a)). The
Supreme Court has outlined a three step, burden-shifting
analysis for race discrimination claims brought under Title
VII.
The burden initially rests upon the plaintiff to
establish a prima facie case of discrimination. McDonnell
Douglas Corp. v. Greene, 411 U.S. 792, 802-05 (1973); – see
also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08
(1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981). Establishing a prima facie case of
discrimination requires the plaintiff demonstrate, by a
preponderance of admissible evidence, that (1) he is a
member of a protected class; (2) he satisfactorily
performed his job duties; (3) he suffered an adverse
employment action; and (4) the adverse employment action
occurred under circumstances giving rise to an inference of
discriminatory intent. – See Terry v. Ashcroft, 336 F.3d
128, 138 (2d Cir. 2003); see also Zahorik v. Cornell Univ.,
729 F.2d 85, 92 (2d Cir. 1984).
Where a plaintiff is
unsuccessful
in
satisfying
these
criteria
by
a
preponderance of the admissible evidence, summary judgment
is warranted and the case is dismissed.
If a plaintiff successfully establishes a prima
facie case of discrimination, the burden of production
shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged employment
decision. See St. Mary’s Honor Ctr., 509 U.S. 506-07. If
the employer articulates a legitimate reason for its
employment actions and decisions, the presumption of
discrimination triggered by the prima facie case drops from
the analysis.
The focus then turns to the plaintiff’s
ultimate burden of persuasion to demonstrate by a
preponderance of the evidence that the challenged
employment decision was the result of intentional
discrimination. – –
See id. at 509-11. Thus, the plaintiff
must show that his race is a motivating factor in the
employer’s decision-making process and had a determinative
influence on the outcome.
Luciano v. Olsten Corp., 110
F.3d 210, 219 (2d Cir. 1997). It is at this point that the
plaintiff may seek to establish that the defendant’s stated
justification for the adverse employment action is, in
fact, a pretext for discrimination.
Id. at 215.
The
plaintiff may not establish the existence of an issue of
material fact concerning the pretextual nature of the
justification “by offering purely conclusory allegations of
discrimination, absent any concrete particulars . . . . ( I
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
In considering claims brought pursuant to 42
U.S.C. § 1981, the same analytical framework used in a
Title VII discrimination claim is applied.
Anderson v.
Hertz Corp., 507 F. Supp. 2d 320, 326-27 (S.D.N.Y. 2007).
Similarly, the law is well settled that “claims brought
under the New York State’s Human Rights Law [New York State
Executive Law § 2961 are analytically identical to claims
brought under Title VII.” Torres v. Pisano, 116 F.3d 625,
629 n.1 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1997);
Anderson, 507 F. Supp. 2d at 327.
B. Plaintiff Has Not Established a Prima Facie Case
of Discrimination
1.
Plaintiff Cannot Establish the Existence of
an Adverse Employment Action
As the Second Circuit has noted, “not every
unpleasant matter short of discharge or demotion creates a
cause of action” for discrimination. Richardson v. N.Y.
State Dep’t of Corr. Servs., 180 F.3d 426, 446 (2d Cir.
1999), abrogated on other grounds by Kessler, 461 F.3d 199.
Rather, an “adverse employment action” must amount to
a materially adverse change in the terms and
To be “materially
conditions of employment.
adverse,” a change in working conditions must be
more disruptive than a mere inconvenience or an
alteration of job responsibilities.
Such a
change might be indicated by a termination of
employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a
material
loss
of
benefits,
significantly
diminished material responsibilities, or other
indices unique to the particular situation.
Savarese v. William Penn Life Ins. Co. of N.Y., 418 F.
Supp. 2d 158, 161 (E.D.N.Y. 2006) (quoting Weeks v. N.Y.
State (Div. of Parole), 273 F.3d 76, 85 (2d Cir. 2001),
abrogated on other grounds by Nat’l R.R. Corp. v. Morgan,
536 U.S. 101 (2002)); see also Mormal v. Costco Wholesale
Corp., 364 F.3d 54, 57 (2d Cir. 2004) (“A tangible
employment action, as defined by the Supreme Court,
‘constitutes a significant change in employment status,
such as hiring, firing, failure to promote, reassignment
with significantly different responsibilities, or a
decision causing a significant change in benefits.'”
(citation omitted) ) .
adverse for purposes
materially
An employment action is not
of a Title VII
discrimination claim simply because a plaintiff is unhappy
about it or believes it is unfair or unwarranted. Garber
v. New York City Police Dep’t, No. 95 Civ. 2516 (JFK), 1997
WL 525396, at *5 (S.D.N.Y. Aug. 22, 1997) (holding
plaintiff’s purely subjective feelings about an employment
transfer did not rise to level of Constitutional
violation), aff’d, 159 F.3d 1346 (2d Cir. 1998).
Plaintiff’s
allegations concerning materially
adverse changes in the terms and conditions of his
employment stem from the June 9 Letter to Dr. Lawrence
reprimanding him for his actions during the evening of May
26, 2005. According to Dr. Lawrence, the memo resulted in
the ED atmosphere becoming “poisoned against him” and
“justified the shorting” of the number of shifts assigned
to him. Plaintiff’s Response ¶ 109.
However, these allegations, in light of the
evidence offered by Dr. Lawrence, are insufficient to
establish an adverse employment action under Title VII.
With regard to Dr. Lawrence’s allegations that the ED
atmosphere was “poisoned” against him, it was he, not
Defendants, who publicized his
communications with
Defendants concerning the May 26 Incident and the June 9
Letter to a number of physicians and other ED medical staff
while attempting to garner support for his claim that he
did nothing wrong. Therefore, Dr. Lawrence’s own actions
served as the proximate cause of any effect the June 9
Letter might have on the atmosphere of the ED.
In
contrast, Plaintiff offers no evidence that Defendants
engaged in any activity to publicize the May 26 Incident
among the ED employees, and Defendants cannot be held
responsible for any alleged “poisoning” of the ED
atmosphere.
Plaintiff’s allegation concerning “shorting” of
his shifts also fails to establish the existence of an
adverse employment action. Dr. Lawrence has acknowledged
that the “shorting of his shifts” preexisted the May 26
Incident and the June 9 Letter. Moreover, Plaintiff has
not produced any evidence that this practice became more
severe following either the May 26 Incident or the June 9
Letter. Dr. Lawrence also admits that he was working in
the emergency departments of two other hospitals during
this period and requested fewer shifts at the Nyack
Hospital ED to enable him to continue to do so.
Dr. Lawrence was not demoted, discharged,
disciplined in any way, transferred, or assigned different
or lesser duties as a result of the June 9 Letter. His job
title was not altered in any way and no other material
changes to the terms and conditions of his employment were
imposed as a result of or in conjunction with the June 9
Letter.
Because Plaintiff cannot, as a matter of law,
establish the existence of an adverse employment action,
his claim cannot withstand Defendants’ motion for summary
judgment .
2. Plaintiff Cannot Establish the Existence of
Discriminatory Intent
Plaintiff also asserts that the actions taken by
Dr. Mehlman following the May 26 Incident were motivated by
discriminatory intent. A plaintiff may establish that an
adverse employment action resulted from discrimination by
demonstrating that the employer treated him less favorably
than a similarly situated employee outside his protected
group. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003). However, the “similarly situated” individual
must be “similarly situated in all material respects.”
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d
Cir. 1999) (quoting Shumway v. United Parcel Serv., Inc.,
118 F.3d 60, 64 (2d Cir. 1997)).
This requires
demonstrating that the plaintiff’s fellow employee was
“subject to the same standards governing performance
evaluation and discipline, and must have engaged in conduct
similar to the plaintiff’s.” – Id. at 96 (quoting Mazzella
v. RCA Global Commc’ns, Inc., 642 F. Supp. 1531, 1547
(S.D.N.Y. 1986), aff’d 814 F.2d 653 (2d Cir. 1987)).
Plaintiff points to the absence of any action by
Nyack Hospital against Dr. Khilnani following the May 26
Incident as evidence of disparate treatment. Dr. Khilnani,
however, cannot said to be a “similarly situated” employee.
While Dr. Khilnani was also on duty the night of May 26,
2005, he was not the physician who spoke with the police
officer in the ED. In addition, while Dr. Khilnani was a
recent medical school graduate, Plaintiff was the doctor on
duty with the most seniority and the former Interim
Director of the ED.
Further, Defendants had not been
directed by the CEO of Nyack Hospital to issue a reprimand
to Dr. Khilnani. Because Plaintiff has not proffered any
additional evidence that he was treated less favorably than
similarly situated individuals, he cannot rely on
allegations of “disparate treatment” to demonstrate
discriminatory intent on the part of Defendants.
In further support of his
assertion
of
discriminatory intent, Dr. Lawrence cites to comments
allegedly made by Dr. Mehlman, described supra, that he
argues evidences racial bias. In considering the nature of
allegedly racially discriminatory conduct, courts have
warned that “[iln Title VII actions . . . it is important
to distinguish between harassment and discriminatory
harassment in order to ‘ensure that Title VII does not
become a general civility code. ‘ ” Manessis v. N.Y.C. Dep’t
of Transp., No. 02 Civ. 359 (SAS), 2003 WL 289969, at *7
(S.D.N.Y. Feb. 10, 2003) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)); Petrosino v. Bell Atl.,
–
385 F.3d 210, 223 (2d Cir. 2004) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
Thus, offhand comments or isolated incidents of offensive
conduct, unless extremely serious, will not support a claim
of discriminatory harassment, even if the plaintiff can
submit admissible evidence that they in fact occurred.
Petrosino, 385 F.3d at 223; Holtz v. Rockefeller & Co., 258
F.3d 62, 75 (2d Cir. 2001) .
Even viewing Dr. Mehlman’s comments in a light
most favorable to Plaintiff, no trier of fact could
conclude that a reasonable person would find the comments,
unconnected by time or date to the alleged adverse
employment action, sufficient to support a claim of racial
discrimination.
Indeed, Dr. Lawrence himself never
complained to Dr. Mehlman about his (Dr. Mehlman’s)
statements prior to the initiation of this lawsuit or
requested that Dr. Mehlman stop engaging in the conduct
which Plaintiff now claims was offensive and objectionable.
As to the allegations that Dr. Mehlman’s
scheduling decisions evidences his racial animus, Plaintiff
admits that the same or similar scheduling practices were
continued by a new Director hired in November 2005 by NEP.
Despite this, Plaintiff does not allege any racially
discriminatory motivation on the part of the new Director.
Plaintiff’s allegations of racial discrimination
are further undercut by the fact that NEP appointed Dr.
Lawrence as the Interim Director of the ED in 2003 and
considered Dr. Lawrence for the position of permanent
Director of the ED. Dr. Lawrence was also presented as a
candidate to the Nyack Hospital committee charged with
choosing the new Director.
In addition, Dr. Mehlman
himself recruited an African-American physician for the
position of Assistant Director of the ED, and two African-
American physicians, Dr. Deborah White and Dr. Augustine
Alifo, were offered employment with NEP as the future
Director of the ED during Dr. Mehlman’s tenure as Director.
Plaintiff’ s perceived slights by Dr. Mehlman and
his present objections to Dr. Mehlman’s conduct and
comments do not establish discriminatory intent on the part
of Defendants. Such perceived slights, or even personality
conflicts, are insufficient to support an allegation of
discriminatory intent.
IV. CONCLUSION
Upon the facts and conclusions stated above, the
motion for summary judgment is granted and the Complaint is
dismissed. Enter judgment on notice.
It is so ordered.
New York, NY
September y3/ , 2009
ROBERT W. SWEET
U.S.D.J.