Ayromlooi v St. Luke's-Roosevelt Hosp. Ctr.

[*1] Ayromlooi v St. Luke's-Roosevelt Hosp. Ctr. 2005 NY Slip Op 51419(U) [9 Misc 3d 1106(A)] Decided on July 18, 2005 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2005
Supreme Court, New York County

Cyrus Ayromlooi, M.D., Plaintiff,

against

The St. Luke's-Roosevelt Hospital Center et Al., Defendants.



123376/00

Walter B. Tolub, J.

Plaintiff Cyrus Ayromlooi, M.D., a psychiatrist who was employed by defendant St. Luke's/Roosevelt Hospital Center (the Hospital) for more than 25 years, alleges that the Hospital discriminated against him on the basis of his age (born 1941) and national origin (Iranian), and retaliated against him for complaining that he believed he was underpaid relative to younger psychiatrists in violation of the New York City Administrative Code § 8-107, et seq. (the New York City Human Rights Law).

The Hospital moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's complaint, verified October 30, 2000 (the Complaint), on the ground that no genuine triable issues of fact exist. For the reasons discussed herein, the motion is granted.

BACKGROUND

Plaintiff was employed as a psychiatrist by the Hospital from 1973 to 2000, originally as a fellow resident, and thereafter consistently promoted in the Hospital's Department of Psychology (the Department). In 1975, plaintiff was an attending psychiatrist in two divisions within the Department - - the Division of Child and Adolescent Psychiatry and the Comprehensive Alcohol Treatment Program Division (also known as the Substance Abuse Division or Trinity House). Dr. Gail Allen was the director of the Substance Abuse Division until she retired in June 2000.

Dr. Sigurd Ackerman (born 1940), was Director of the Department from 1989 to 1998, and thereafter became president of the Hospital. Ackerman appointed Dr. Stephen Reibel (born 1935) to be the Co-Chair of the Department.

During his tenure, Ackerman took various initiatives to [*2]increase the efficiency and productivity of the Department. To this end, Ackerman instituted productivity standards that all of the doctors were required to meet. Among other things, the Hospital, under Ackerman's auspices, implemented a new productivity policy requiring psychiatrists in the Substance Abuse Division to limit initial patient consultations to one hour or less. Plaintiff vehemently opposed this directive both orally and in writing, and refused to comply therewith, instead taking as long as two or three hours to complete an initial consultation. Plaintiff's then supervisor, Allen, also opposed the new administration's productivity policies.

In March 1999, as a result of plaintiff's alleged refusal to comply with the productivity standards, Reibel told Allen that plaintiff needed to comply with the Department's policies, or if unable to do so, he was free to seek employment elsewhere. Plaintiff maintains that this was a threat of termination by the Hospital, but the Hospital characterizes these words as criticism of plaintiff's performance.

Plaintiff's salary, like the salary of psychiatrists hired earlier, lagged behind the salary of the more recently hired psychiatrists, whose salaries were more in line with the current market. In the mid to late 90's, an attempt was made to harmonize the salaries at the Hospital. However, the salaries of the psychiatrists in the Substance Abuse Division were not increased at that time allegedly based on Ackerman's dissatisfaction with the division's failure to comply with the new productivity standards. Plaintiff's colleague in the Substance Abuse Division, another psychiatrist of Iranian descent, was likewise not given a salary increase.

Soon thereafter, the Hospital decided to integrate certain divisions within the Department. Notably, the Hospital decided to merge two previously independently operated programs, i.e., Trinity House and Roosevelt Hospital (referred to as Smithers). As Co-Chair, Reibel appointed a psychiatrist from the Smithers program to serve as the Director of the combined Substance Abuse Division, and appointed Allen the Assistant Director. Due to the merger of the programs, various staff members were displaced from their office spaces. Plaintiff was required to give up his office, and often had to meet with his patients in public areas of the Hospital rather than in a consistent private location. Plaintiff considered this disruptive and humiliating.

In 1999, the issue of plaintiff's salary came to the forefront because the Hospital was considering hiring an additional psychiatrist to work part time in the Substance Abuse Division. In order to make plaintiff's rate of pay commensurate with a new hire, the Hospital decided to increase plaintiff's hourly pay, but reduce his hours of work. Thus, although plaintiff now made the same salary as he did previously, his [*3]hours were reduced.

According to the Hospital, despite frequent requests, plaintiff continued to underperform, and refused to comply with the productivity standards as well as various clerical requirements. Reibel and plaintiff met twice in March 2000 to discuss the situation, including plaintiff's job performance. In October 2000, plaintiff submitted a letter of resignation, effective November 3, 2000.

In the Complaint, plaintiff asserts three causes of action. In the first and second causes of action, plaintiff alleges that the Hospital engaged in unlawful discrimination based on his age and national origin, respectively, in violation of section 8-107(a)(1) of the New York City Human Rights Law.[FN1] In the third cause of action, plaintiff alleges that the Hospital engaged in unlawful retaliation, in violation of section 8-107(1)(e) of the New York City Human Rights Law ("[i]t shall be an unlawful discriminatory practice for any person to engage in any activity...to retaliate or discriminate in any manner against any person because such a person has ...opposed any practice forbidden under this chapter. . . "). Plaintiff seeks damages, including punitive damages, costs and attorneys' fees, pursuant to the New York City Human Rights Law §§ 8-502(a), 8-502(f).The Hospital, in its Answer, verified December 8, 2000, denies the general allegations in the Complaint, and asserts, among other things, that the Hospital complied with the New York City Human Rights Law, had policies in place prohibiting discriminatory and retaliatory behavior, and did not discriminate or retaliate against plaintiff.

Discovery is complete, and the note of issue was filed on July 17, 2003.

DISCUSSION

The standards for establishing unlawful discrimination under the New York City Human Rights Law, like the New York State Human Rights Law, are in accord with Federal standards under Title VII of the Civil Rights Act of 1964 (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 fn3 [2004]). A party alleging religious discrimination in [*4]employment under the New York State and New York City Human Rights Laws carries the initial burden of establishing a prima facie case. To meet this burden, an employee must show that he is a member of a protected class, was qualified to hold the position, was terminated from employment or suffered another adverse employment action, and the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (see Forrest v Jewish Guild for Blind, 3 NY3d 295, 305 [2004]). To prevail on a summary judgment motion, the employer must demonstrate either the employee's failure to establish every element of intentional discrimination, orhaving offered legitimate, nondiscriminatory reasons for the challenged actionthe absence of a material issue of fact as to whether its explanations were pretextual (id.; see also Ferrante v American Lung Assn., 90 NY2d 623, 629-630 [1997]).

(Messinger v Girl Scouts of the U.S.A., 16 AD3d 314, 314 [1st Dept 2005]; see also

Hemingway v Pelham Country Club, 14 AD3d 536 [2nd Dept 2005]; Hughes v United Parcel Service, Inc., NYLJ, July 26, 2004, at 17, col 1 [Sup Ct NY County 2005, Madden, J]).

Plaintiff bears the initial burden of establishing a prima facie case of racial and/or age discrimination by showing that he was a member of a protected group, that he suffered an adverse employment consequence, and that the employer's action occurred under circumstances giving rise to an inference of racial and/or age discrimination (Forrest v Jewish Guild for the Blind, supra , 3 NY3d, at 305; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; see also McDonnell Douglas Corp. v Green, 411 US 792, 802 [1973]).

If the plaintiff successfully establishes a prima facie case: 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 nondiscriminatory reasons to support its employment decision" (id. [citations omitted]). In order to nevertheless succeed on her 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 (see id. at 629-630). To prevail on their summary judgment motion, defendants must demonstrate either plaintiff's failure to establish [*5]every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.

(Forrest v Jewish Guild for the Blind, supra , 3 NY3d, at 305, quoting Ferrante v American Lung Assn., supra ).

Although the question of whether discrimination occurred generally presents an issue of fact, summary judgment may be granted in discrimination cases when the defendant demonstrates the absence of a prima facie case, and plaintiff is unable to raise an issue of fact (see Forrest v Jewish Guild for the Blind, supra , 3 NY3d at 305-306).

The Hospital contends that plaintiff has not come forward with any evidence to show that he was discriminated against based either on his Iranian origin or his age, and, thus has failed to make out a prima facie case of discrimination. Alternatively, the Hospital contends that, even if plaintiff satisfied his initial burden, the Hospital has presented evidence of legitimate, non-discriminatory reasons for its actions, which have not been rebutted by plaintiff. The Hospital submits that, in the absence of evidence that the reasons it articulated are a pretext for age or national origin discrimination, summary judgment dismissing the Complaint is warranted.

Among other things, the Hospital contends that the evidence confirms that: (a) plaintiff refused to comply with the Hospital's productivity policy, and was counseled about that behavior; (b) any salary disparity between plaintiff and newly hired staff was the result of market forces, and unrelated to plaintiff's age or national origin; and (c) the supervisors who plaintiff charges with discriminatory conduct based on age, i.e., Ackerman and Reibel, are in fact older than plaintiff.

The Hospital maintains that the evidence demonstrates that any salary differences between the plaintiff's salary and newer recruits' salaries were attributable solely to market conditions and not to plaintiff's age or national origin. The existence of market forces are a valid defense to a claim of employment discrimination (see e.g., Kent v Papert Cos., Inc. 309 AD2d 234, 244 [1st Dept 2003] [employer "was well within its rights in considering the marketplace value of [employee's] skills when determining his salary"]; see also Rosen v Columbia Univ., 1995 WL 464991 [SD NY 1995] affd sub nom Rosen v Feldman, 101 F3d 108 [2d Cir 1996]). The Hospital also proffered evidence that plaintiff, along with another doctor in the Substance Abuse Division who was also Iranian, were not given a salary raise in the mid-90s, not based on their origin, but because the Hospital considered their division to be under performing.

Plaintiff contends he was subjected to adverse employment action by the Hospital because, among other things, he was [*6]subjected to an unfair salary discrepancy, and the Hospital's alleged problem with plaintiff's productivity level was pretextual and arose only after he complained about the Hospital's allegedly discriminatory treatment of older doctors compared to entry-level doctors. Plaintiff contends that he has produced evidence raising material questions of fact concerning the Hospital's alleged unlawful discrimination based on his age and national origin.

It is not disputed that plaintiff is a man of Iranian descent, qualified for the job he held at the Hospital, and that he was 59 years of age at the time he left the Hospital's employ. However, plaintiff failed to raise a triable of issue of material fact as to whether any adverse employment action he alleges he suffered occurred under circumstances giving rise to an inference of discriminatory motive. An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse 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 a particular situation" (Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000] [citations and internal quotation marks omitted]).

(Forrest v Jewish Guild for the Blind, supra , 3 NY3d, at 306; see also, Messinger v Girl Scouts of the U.S.A., supra , 16 AD3d 314, 314-315).

Here, although plaintiff has listed a litany of perceived wrongful actions, he has not shown that any of the listed conditions were the result of unlawful employment discrimination or that other employees were treated any better than he was. Plaintiff's opposition, when stripped to its essentials, is nothing more than a series of vague accusations and suppositions unsupported by any concrete facts. "[I]t is simply not the law that every dispute that arises between people of different races constitutes employment discrimination, or that every wrongful act perpetrated in the course of such a dispute is committed because of race. Simply put, animosity on the job is not actionable; unequal treatment based on racial animus is" (Forrest v Jewish Guild for the Blind, supra , 3 NY3d at 298).

Nor is there any factual support for plaintiff's claim that he did not resign from the Hospital, but rather that he was constructively discharged, based on the frequent criticisms he received from his supervisors concerning his failure to abide by [*7]the Department's clerical responsibilities and productivity standards, the Hospital's move of plaintiff's office and its refusal to provide him with a consistent location to meet with patients, where all employees in the Department and the Substance Abuse Division were given these same responsibilities and many had their office locations change. A constructive discharge claim requires more than a claim by plaintiff that his working conditions were simply difficult or unpleasant. Evidence is likewise lacking that the Hospital was, in any respect, trying to force plaintiff to quit. Rather, the evidence supports the Hospital's contention that plaintiff's constructive discharge claim is based on his unwillingness to conform to the new standards imposed upon the Department as a whole by new administration (see Katz v Beth Israel Medical Center, 95 Civ 7183, 2001 WL 11064 [SD NY January 4, 2001 Schwartz, J.]).

Furthermore, to the extent that plaintiff relies upon isolated statements to him from his supervisor to the effect that "times have changed," and "you are not keeping up," these statements cannot be said to be anything other than neutral. In any event, it is well settled that a single, isolated remark, even if voiced by a supervisor is insufficient, without more, to support a claim of age discrimination (see e.g., Almanzar v Collegiate Church Corp., 255 AD2d 230, 240-241 [1st Dept 1998]; Iuorno v Dupont Pharmaceuticals Co., 2005 WL 236618 [2d Cir 2005]).

For the foregoing reasons, the court holds that summary judgment is warranted dismissing both the first and second causes of action.

With respect to the third cause of action, to establish a prima facie claim of retaliation "plaintiff must show that (1) [he] has engaged in protected activity, (2) [his] employer was aware that [he] participated in such activity, (3) [he] suffered an adverse employment action based upon [his] activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, supra , 3 NY3d at 313; see also Dubois v Brookdale University Hosp. & Medical Center, NYLJ, January 7, 2005, at 19, col 3 [Supreme Ct, Kings County, Schmidt, J.]).

Plaintiff contends that the Hospital engaged in retaliatory conduct against him just days after he complained that he was being discriminated against by the Hospital. He maintains that his "complaints" constituted protected activity, that the Hospital was aware of his exercise of protected activity, and that he suffered adverse employment action at the hands of the Hospital as a direct consequence of his protected activity. Plaintiff further contends that there is a causal connection/nexus between his protected activity and the adverse employment actions he suffered. [*8]

Despite his sweeping statements, no evidence has been presented by plaintiff to support his contention that the Hospital engaged in unlawful retaliatory conduct. The facts do not support plaintiff's assertion that, after he complained about the alleged salary disparity between older and younger physicians, the Hospital threatened to fire him and reduced his salary. The evidence shows only that the increased clerical duties and the productivity standards at issue were imposed equally on all psychiatrists in the Department, not merely upon plaintiff. Plaintiff has not come forward with any evidence showing that they requirements were imposed upon him in retaliation for engaging in any protected activity. Nor has plaintiff introduced any evidence tending to show that his relocation from his office and his need to meet with patients in various public places was motivated in any respect by a retaliatory motive by the Hospital. Under these circumstances, "merely pointing to the inference of causality resulting from the sequence in time of the events" is insufficient to avoid summary judgment (Forrest v Jewish Guild for the Blind, supra , 3 NY3d at 313-314, quoting Chojar v Levitt, 773 F Supp 645, 655 [SD NY 1991]; see also Kaptan v Danchig, ___ AD3d ___ , 796 NYS2d 706 [2d Dept 2005]). Accordingly, it is

ORDERED that defendant's motion for summary judgment dismissing the complaint is granted and the complaint is dismissed with costs and disbursements to defendant, as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1: Section 8-107(a)(1) provides that: "[i]t shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment" (emphasis added).