Melman v Montefiore Med. Ctr.
Annotate this CaseDecided on May 25, 2010
Supreme Court, Bronx County
Arnold Melman, M.D., Plaintiff,
against
Montefiore Medical Center, Defendant.
301945/07
Mark Friedlander, J.
The following papers numbered 1 to 5 read on this motion
on the calendar ofNovember 30, 2009
Papers Numbered
Notice of Motion, Order to Show Cause, Affidavits and Exhibits Annexed............1-2.................
Answering Affidavits and Exhibits Annexed............................................................3....................
Replying Affidavits and Exhibits Annexed...............................................................4,5.................
Upon the foregoing papers, this motion is decided in accordance with the annexed memorandum decision.
5/25/10/s/
Dated: ____________________________________
MARK FRIEDLANDER, J.S.C. [*2]
Defendant Montefiore Medical Center ("Defendant" or "MMC") moves for summary judgment dismissing plaintiff's claims against it. Plaintiff, Arnold Melman, M.D. ("Plaintiff" or "Dr. Melman") opposes the motion. The claims herein involve alleged incidences of age discrimination by MMC against Dr. Melman, as well as alleged retaliation against Plaintiff for protesting such discrimination, all in violation of provisions of the Administrative Code of the City of New York, which provisions are generally referred to as the City's Human Rights Law ("HRL"). The complaint seeks compensatory damages of ten million dollars, as well as punitive damages of twenty million dollars. For the reasons stated hereinafter, the motion is granted and the complaint herein is dismissed.
Plaintiff is the chairman of the Urology Department at MMC, having served in that capacity since 1988. At the time of initiation of this action, Plaintiff was 66 years old, but the claims asserted include purportedly discriminatory treatment of Plaintiff extending back to 2001, when Plaintiff was 60.
In essence, Plaintiff asserts that he was paid less than certain other departmental chairs at MMC, that another physician in his own department was paid more than he was, and that his requests for staff were not always granted. He further complains that MMC officials did not sufficiently appreciate or publicize his numerous accomplishments and prowess in his field, and that he was "ignored" at meetings.
In a second cause of action, Plaintiff contends that, when he complained of the above slights, MMC retaliated against him, by questioning his non-attendance at a meeting, characterizing a foreign trip of Plaintiff's as a business trip, and bringing up the subject of Plaintiff's previous administrative lapses as defenses to Plaintiff's claims. Plaintiff also asserts that MMC first delayed an investigation into his complaints, and then conducted a sham investigative process.
The papers herein are voluminous, and include, in the thousands of pages submitted, at least eight extensive affidavits, three memoranda of law (including citations to well over one hundred fifty cases) and extensive exhibits, including deposition transcripts, and other records. It would serve no legitimate purpose to tease apart all of the minute facts and circumstances asserted by each of the parties, and to analyze each and every decision cited (particularly as most of the cases cited are not directly on point, but rather highlight general propositions of law, which are not in dispute here).
Rather, it is the Court's conclusion that, even taking all of the facts asserted by Plaintiff as true and affording him every benefit of the doubt (as is appropriate on a summary judgment motion made by Defendant), Plaintiff has not made out a prima facie case of either age discrimination or retaliation. Under the circumstances shown herein, it would be inappropriate to preserve these claims for presentation to a jury.
Reaching this result requires cutting through a morass of statements and counter-statements because, it concededly could appear, at first blush, that, with numerous facts in dispute, this matter cannot be decided on papers, but must await resolution by a jury. The Court is well aware that, in its role as decider of this motion, it may not act as a fact finder. However, it is the Court's firm view, after several careful reviews of all the papers herein, that such facts as are contested are irrelevant to disposition of the issues, and that those facts which are undisputed [*3]mandate a finding that, as a matter of law, there is no cognizable claim here.
In the first instance, Defendant has argued that those claims arising from acts occurring before October 2004 are time barred by the three year statute of limitation contained in the HRL, in that the instant lawsuit was initiated in October 2007. Defendant's right to raise this issue is preserved by virtue of Defendant's invoking of the statute of limitations in the fourth affirmative defense in its answer. Plaintiff has not refuted this argument at any point in his extensive submission. Consequently, claims asserted herein arising out of any actions taken before October 2004 are hereby dismissed as untimely.
Second, it is not disputed that Plaintiff continues to serve as Chair of the MMC Urology Department. Nor is it even asserted that he was ever threatened with dismissal from that position, or that his retirement was ever encouraged or suggested. Consequently, the comparison of himself to various former chairs who were let go in the past is inappropriately raised by Plaintiff.
It is not disputed that MMC is composed of many different medical and surgical departments, of varying sizes, and varying levels of profitability to MMC's bottom line. MMC shows, through its submissions, the reasons for its decisions on issues of salary and staff hiring in Plaintiff's department. Nothing produced by Plaintiff shows the decisions taken by MMC to be either unreasonable or discriminatory. It cannot be gainsaid that decisions by hospital administrators as to salaries at the high level of department chair are subjects for negotiation between the employee and employer, based on the relative bargaining strengths of the parties, issues of supply and demand, and other economic factors, as well as medical reputations of incumbents and other available candidates.
Here, MMC has shown that the various department chairs were compensated at higher levels, as well as at lower levels, than was Dr. Melman. It has shown that some chairs who were older than Dr. Melman were paid more than he was, and that some younger chairs were paid less. It has listed factors which influence the level of compensation, including the profitability of the medical specialty as compared with others, the size of the department, and the possible "star" status of a recruited chair who is unique in having the skill to perform certain procedures. Plaintiff has not shown that these factors are irrelevant, or that they were not applied in the general course of MMC's decision making.
In support of his claim that decisions at MMC were influenced by improper motives, Plaintiff points primarily to three statements by Dr. Spencer Foreman, who was MMC's president and CEO at the time. These statements are taken out of context, but, even taken at face value, they do not, as a matter of law, rise to the level of showing any intent to discriminate. In one statement, Dr. Foreman referred to MMC's "wonderful young faculty," in its Urology Department. In another, he celebrated a new trustee as "a young trustee with enthusiasm and vigor and energy." In the first instance, members of the board of trustees are neither employees nor necessarily physicians, and statements about them have no bearing on Foreman's purported attitude toward physicians in his employ. Second, the statement as to the existence of a young faculty could as easily imply that Foreman saw no need to ease out older faculty, in light of all the younger ones already at Plaintiff's department.Most importantly, however, there is no hint of an animus toward older personnel in these statements, which are purely affirmative praise of newcomers to MMC. To find in such language the seeds of purported discrimination would be [*4]to instigate a chilling effect on the words of those who would welcome new and younger colleagues to any organization in the effort to ensure long-term continuity of operation. It is within the common parlance of all organizational leaders to welcome replenishment of the work force with young newcomers, and it is an illogical stretch to make this alone the foundation for asserting a demonstrable tendency toward age discrimination.
The third and last of the statements attributed to Dr. Foreman not only fails entirely to support Plaintiff's thesis, but shows a singular lack of human empathy on the part of Dr. Melman. Plaintiff claims that Dr. Foreman stated that "things happen to old men. Nobody knows that better than a doctor." Plaintiff does not bother to add that this statement was not made in any context that could conceivably relate to MMC's hiring and firing practices. Rather, this was a self-deprecating statement made by Dr. Foreman, relating to his own health. There is no implication of animus toward others, or toward a group, in statements made modestly about one's own abilities.
Even more damaging to Plaintiff's contention is the specific context of this third statement. It is set forth in a newspaper interview with Foreman (Exhibit C to the opposition papers) in which it is noted that Foreman was in a motorized wheelchair, suffering from malignant brain cancer. Referring to his own new role as a patient, Foreman noted that he would have preferred good health, but then uttered the above, in obvious resigned acceptance of his plight. To attempt to elevate this statement to the level of a demonstration of Foreman's supposed tendency toward discriminating against others is not only patently unsupportable, but a demonstration of gracelessness not easily surpassed.
Several months after initiation of this action, Dr. Foreman, who was ill at the time, retired from his position as president and CEO of MMC. It could not be clearer from these motion papers that Plaintiff did not have a good relationship with Foreman, but dislike of one's boss (in this case, former boss) does not make out a case of age discrimination. The statements which Plaintiff attributes to Foreman do not in the least support a claim that Foreman demonstrated any inclination to discriminate.
As has been set forth supra, the details concerning compensation of various department chairs at MMC were contained in the papers, along with the welter of factors that governed the compensation decisions made in each case. This is necessarily a complex issue, not easily susceptible to analysis from the perspective of showing discriminatory intent. Here, though, the Court finds that Plaintiff has failed entirely to show that he was treated adversely, under circumstances giving rise to an inference of age discrimination.
As has been mentioned, salary decisions at this level are influenced by negotiation and economics. Mere recitation of salary numbers does not and cannot make out a prima facie case. Whether Dr. Melman should have been compensated at the rate of $500,000 per year or $600,000 per year is not reasonably determinable from this vantage point (if, indeed, there is any "right" answer to such question) and, in the absence of any evidence of discriminatory intent toward him, it would be grossly inappropriate to effectively second guess the professional physicians and administrators who employed him. As a matter of law and public policy, it is absurd to imagine that a bench trial, let alone a jury trial, could find a rational basis for upholding a claim of discrimination based on the salary information advanced by Plaintiff.
All of the above would be true, even if Plaintiff were not a department chair who has [*5]been shown to have been responsible for significant administrative lapses. But Plaintiff's history as a department chair was in fact checkered with such instances. The residency program for which Plaintiff was responsible was placed on probation, and was cited for continuing failures which threatened its accreditation; and Plaintiff's department was cited by Medicare for violation of requirements, which led to MMC having to repay significant sums to Medicare. There are a host of additional discrepancies cited by MMC's papers, all of which are substantial in nature. While Plaintiff may attempt to downplay or excuse these failures, it is clearly not disputed that there were issues with his department, raised not primarily by MMC, but by governmental agencies and other outside parties. Under these circumstances, there is even less basis for a showing of discrimination based merely on relative salary and bonus amounts.
Plaintiff makes clear in his affidavit that he has an exalted image of himself as a practitioner. His self-image may even be totally in consonance with reality, and, for purposes of this motion, the Court will assume such realism on Plaintiff's part. Still, it remains almost absurd for Plaintiff to claim age discrimination based on the purported failure to MMC leadership to sufficiently "celebrate" Plaintiff's greatness. Failure to heap sufficient praise, in whatever context, on an employee who is retained in his high position, cannot possibly be a legally sufficient basis for a claim of age discrimination.
In sum, the Court views the instant claim as nothing more than the elevation into a lawsuit of presumed personality clashes between Plaintiff and MMC executives, primarily Dr. Foreman. To burden the courts with such interpersonal frictions is akin to an abuse of the judicial system. The Court holds that, as a matter of law, there is a frivolousness to these claims which merits dismissal on these papers.
Plaintiff's second claim of retaliation is, if anything, more frivolous than the discrimination claim. Plaintiff has not been fired, demoted, or penalized in any meaningful manner. The instances Plaintiff cites of supposed "retaliation" would, if allowed, prevent any meaningful exchanges in the workplace. Plaintiff was asked why he had skipped a meeting. There is no implication that he was threatened with any penalty for not attending. His trip to Israel was called a "business trip." (Usually, it is unwelcome to an employee when his trip is NOT accepted as a business trip. It cannot be discerned how Plaintiff was hurt by this reverse characterization). In short, it cannot be established by these or other examples how Plaintiff was subjected to retaliation, as that term is understood in our law.
It was also not retaliation for MMC to cite Plaintiff's previous administrative lapses as chair of his department, in responding to his complaints of discrimination. Because such lapses were relevant to Plaintiff's argument in favor of increased pay, it would not be reasonable to expect MMC to avoid mentioning them in the course of discussing Plaintiff's complaints.
Finally, Plaintiff's claim that his complaints received no meaningful investigation at MMC are unsustainable, in light of the detailed documentation of such investigation by the MMC labor relations officer (Christopher Berner) in his affidavit. Plaintiff does not refute the facts set forth in the Berner affidavit, so much as attack the investigative process with characterizations and invective which are not fact-based.
For the above reasons, the Court grants Defendant's motion in all respects, and dismisses Plaintiff's claims against MMC.
This constitutes the Decision and Order of the Court.
5/25/10/s/
Dated: ____________________________________
MARK FRIEDLANDER, J.S.C.
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