PAMELA K. CHEN, United States District Judge:
Before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP"). Plaintiff Jill Meyer ("Plaintiff"), a former employee of Defendants State of New York Office of Mental Health ("OMH") and Creedmoor Psychiatric Center ("CPC"), applied to, but was not hired for, certain positions advertised by Defendants OMH and CPC and was interviewed therefor by Defendant Caterina Grandi ("Grandi") (collectively, "Defendants"). Plaintiff sued Defendants, under a failure to hire theory, for alleged violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL") arising out of alleged gender, religion, and age discrimination. For the reasons stated below, Defendants' motion is GRANTED as to Plaintiff's Title VII claims, which must be dismissed, with prejudice. The Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims, which are likewise dismissed, without prejudice.
Plaintiff is a Jewish woman, approximately 63 years old, who received a medical degree from Ross University in 1981. (Def. 56.1
Plaintiff's role at CPC was that of a Psychiatrist I at CPC's Astoria Clinic. (Def. 56.1 ¶ 34.) The qualifications for a Psychiatrist I include a completed residency and possession of a license to practice, but not Board Certification, which is a requirement for a Psychiatrist II position. (Id. ¶¶ 24-25.)
While at CPC, Plaintiff was also supervised by Joseph Bachner, Chief of Service of CPC's Astoria Clinic. (Def. 56.1 ¶ 40.) Plaintiff's interactions with Bachner led her to conclude that he "wasn't respectful," though she was not sure whether that was because she was a "woman or [an] M.D." (Meyer Tr.
Plaintiff's coworkers at CPC were "aware that [she] was Jewish" and that she "took [days] off for the Jewish holidays, [the] High Holy Days," but Plaintiff "never discussed it" with them. (Id. at 45:5-14.) Plaintiff did not know of any other Jewish employees with whom she worked at CPC. (Id. at 46:14-19.)
At CPC, newly hired psychiatrists are subject to a one-year probationary period, during which they are to receive a performance
Throughout Plaintiff's employment at CPC, Grandi had verbal conversations with D'Souza regarding Plaintiff's performance, with D'Souza characterizing Plaintiff as being overwhelmed, disorganized, and not able to deal with the patients she had to see. (Def. 56.1 ¶¶ 46, 47.)
In May 2005, Plaintiff was due for a second evaluation under CPC's guidelines for the probationary year. (Pl. 56.1 ¶ 156; Grandi Tr. at 48:19-49:4.) She did not receive one, however, before she resigned on May 13, 2005. (Def. 56.1 ¶ 54; Pl. 56.1 ¶¶ 156, 157; Grandi Tr. 49:5-22.) Defendants
After Plaintiff's resignation, Grandi alleges that Plaintiff was not considered rehirable, "[b]ecause [Grandi] felt [Plaintiff] was not competent in providing psychiatric coverage in an outpatient setting," based upon Grandi's conversations with D'Souza. (Grandi Tr. at 64:3-13; Pl. 56.1 ¶ 168.) This determination was not put in writing. (Grandi Tr. at 64:14-17; Pl. 56.1 ¶ 167.)
After Plaintiff resigned from CPC in May 2005, she worked at Jacoby, where she was employed as a staff psychiatrist for approximately six weeks. (Def. 56.1 ¶ 80; Meyer Tr. at 54:18-55:4, 55:17-19.) She left because she "didn't like it at all" and "missed [] public psychiatry." (Meyer Tr. at 55:20-24.)
In July 2005, Plaintiff went from Jacoby to BPC,
Plaintiff was initially employed as a psychiatrist on the Spanish-speaking unit. (Def. 56.1 ¶ 55; Meyer Tr. at 57:16-19.) Dr. Nigel Bark was the chief of that unit and supervised Plaintiff, along with Dr. Joseph Battaglia. (Def. 56.1 ¶¶ 56, 57.) Plaintiff did not work with any other female physician. (Pl. 56.1 ¶ 170.) No one with whom Plaintiff worked on the treatment team at BPC ever made comments to her about her gender, other than generalized comments that a male doctor would not be as fearful of agitated patients from a safety perspective. (Meyer Tr. at 75:3-24.)
There were no other Jewish members of the treatment team on which Plaintiff was initially staffed at BPC, nor were there any "other female Jewish older psychiatrists." (Pl. 56.1 ¶ 171; Meyer Tr. at 64:11-14, 206:2-17.) There was, however, one Jewish doctor "in charge of the physician union." (Meyer Tr. at 195:13-17.) Hilda Alfarro, the head nurse at BPC, "was aware that [Plaintiff] was Jewish" and made reference to that fact "[w]ithin the first couple of weeks" of Plaintiff's employment at BPC, though Plaintiff "d[id]n't know the exact" statement Alfarro made, only that she "made reference." (Id. at 65:4-66:2; Pl. 56.1 ¶¶ 172-74.)
Within two weeks of being employed at BPC, Alfarro permitted a dangerous patient to escape to an area in which the patient interacted with Plaintiff, rendering Plaintiff terribly scared. (Pl. 56.1 ¶ 181.) Plaintiff alleges that during her time at BPC, the staff was disrespectful towards her and Bark did nothing to correct that conduct; in fact, Bark himself was degrading and disrespectful toward Plaintiff, reprimanding her in front of other team members during meetings. (Id. ¶ 185.) BPC employees had made remarks about Plaintiff's Spanish, saying that Plaintiff did not sound "native." (Id. ¶ 178.) Eventually, after the incident with the patient, Alfarro and Bark signed a petition requesting that Plaintiff be transferred out of the Spanish-speaking unit, citing Plaintiff's Spanish as the reason for the requested transfer. (Def. 56.1 ¶¶ 59, 60; Pl. 56.1 ¶ 184.) On Plaintiff's request, she was transferred from the Spanish-speaking unit into a co-ed adult unit. (Def. 56.1 ¶ 63; Pl. 56.1 ¶ 186.) Plaintiff was then transferred, in September 2006, to an all-male high security unit, and then, in December 2006, to the admissions unit. (Def. 56.1 ¶ 65; Pl. 56.1 ¶ 189.) Plaintiff resigned from BPC in January of 2007.
After her departure from BPC, Plaintiff transitioned to working full-time as a staff psychiatrist at Bronx Lebanon, where she had worked part-time since November 2005. (Def. 56.1 ¶ 82; Meyer Tr. at 116:6-24.) She stayed there until February 2008, when she resigned because she wanted a more academic position. (Def. 56.1 ¶ 82; Pl. 56.1 ¶ 82; Meyer Tr. at 121:20-25.)
From Bronx Lebanon, Plaintiff went to Staten Island University Hospital in March 2008, to act as a full-time consultation liaison. (Def. 56.1 ¶ 83; Meyer Tr. at 122:2-11.) She left in June 2010, because of the commute. (Def. 56.1 ¶ 83; Meyer Tr. at 122:19-123:3.)
Plaintiff then opened her own private practice as a consultation liaison, an "out-patient consult," and began providing private physician services at New York Hospital. (Def. 56.1 ¶ 84; Meyer Tr. at 123:10-25, 125:6-13.) She also conducted private practice out of Mount Sinai Hospital. (Def. 56.1 ¶ 85; Meyer Tr. at 125:14-22.) Beginning in January 2010, Plaintiff also began work at Margaret Tietz Nursing Home as a consultant gero-psychiatrist, and continued until November 2010, when she resigned. (Def. 56.1 ¶ 86; Meyer Tr. at 126:6-15; 126:24-127:2.) After her resignation, Plaintiff moved to Dry Harbor Nursing Home, working as a consultant for approximately six or seven months before her services were terminated, which Plaintiff
Throughout much of Plaintiff's employment history, from March 2004 through April 2013, Plaintiff had voluntary privileges at Northshore Hospital that were renewed every two years, but in April 2013, her privileges were not renewed; Plaintiff was "not really sure [of] the reason." (Def. 56.1 ¶ 88; Meyer Tr. at 127:22-128:20.) In addition, Plaintiff applied for a series of jobs for which either her interviews were cancelled or her offers of employment were withdrawn. In 2009, Plaintiff applied for a job with the Syracuse Veterans Administration, was offered the job and accepted it, but then had the offer "taken back," though she is "not really certain why." (Def. 56.1 ¶ 92; Meyer Tr. at 134:4-18.) Plaintiff also applied for and was offered "an excellent job" at an institution called Montefiore, which was then also "taken back." (Def. 56.1 ¶ 95; Meyer Tr. at 144:9-16.) Plaintiff believes this offer was rescinded because BPC "responded negative [sic] to [a] reference and maybe [an] off the record reference [sic] since Dr. Bark and Dr. Bat[t]aglia were very active" at that institution. (Meyer Tr. at 144:17-25.) Plaintiff also applied to a job at Nassau University Medical Center and was scheduled for an interview that was later cancelled, though Plaintiff did not know why. (Id. at 155:14-23.)
Plaintiff "attribute[s] [her] many short employments to" the fact that she has "been dissatisfied with the quality of the care rendered," as she "do[es]n't want to be in the situation where the quality of care is not appropriate." (Id. at 162:13-20.) That is Plaintiff's "opinion of all the places that [she has] worked," as she alleges that she has "always left in good standing." (Id. at 162:21-24.)
Since Plaintiff's employment with CPC and BPC, Plaintiff has applied to various mental health facilities under the control and operation of OMH. (Pl. 56.1 ¶ 195.) Plaintiff was never hired for any such position. (Id. ¶ 196.) Plaintiff alleges that she has been duly qualified for the numerous vacancies for which she has applied, which Defendants dispute. (Compare Pl. 56.1 ¶ 196, with Def. Resp. to Pl. 56.1 ¶ 196.)
In June 2011, CPC advertised that it was seeking two full-time psychiatrists, one for CPC's Steinway Clinic and another for its Assertive Community Treatment Program. (Pl. 56.1 ¶ 197.) Plaintiff alleges that she applied for these positions as a Psychiatrist I (Id. ¶ 199), while Defendants argue that she applied for Psychiatrist II positions (Def. 56.1 ¶¶ 97, 98). Defendants allege that they were looking for candidates with Board Certification, because they assert this indicates better qualifications. (Grandi Decl. ¶ 22.) It is undisputed, however, that the advertised requirements for the positions were a New York State medical license and completion of an approved psychiatry residency; Board Certification was not an advertised requirement. (Pl. 56.1 ¶ 198.) The advertised positions directed all interested parties to contact Grandi. (Id. ¶ 198.)
Plaintiff applied and was interviewed for these positions by Grandi and a female Human Resources representative. (Def. 56.1 ¶ 99; Meyer Tr. at 165:11-24.) As Chief of Psychiatry at CPC, Grandi has the authority to review resumes for applicants
While Grandi's approach is typically to interview everyone with an acceptable curriculum vitae (Def. 56.1 ¶ 27), Grandi only interviewed Plaintiff in 2011 for the advertised positions because she was directed to do so by OMH (Pl. 56.1 ¶ 204). Prior to the interview, Grandi knew that she was not going to consider Plaintiff. (Id. ¶¶ 202, 205.)
During the interview, Plaintiff described to Grandi her past employment at Jacoby, BPC, Bronx Lebanon, and Staten Island University Hospital. (Def. 56.1 ¶¶ 100, 101; Meyer Tr. at 170:13-22.) Grandi made no mention in the interview of any Board Certification requirement for the positions. (Pl. 56.1 ¶ 206.)
After the interview, Plaintiff contacted Grandi because she had not received word regarding her applications. Plaintiff alleges Grandi told her she was an "excellent candidate" but that CPC was "going to look further." (Id. ¶ 207.) Defendants dispute that Grandi ever told Plaintiff she was an excellent candidate. (Grandi Decl. ¶ 28.)
Ultimately, Dr. Zinaida Yel, a female doctor who is Board Certified, was hired for the position at CPC's Steinway Clinic. (Def. 56.1 ¶ 107.) Dr. Haniel Shen, a male doctor who had a history of managing a large caseload of psychiatric patients, was initially hired for the Assertive Community Treatment Program position, but resigned in August 2012 and was replaced by Dr. Alan Jaffe, a male doctor who is Board Certified. (Id. ¶¶ 108, 109.) While Plaintiff asserts that she was just as qualified for these positions as the candidates ultimately hired (Pl. 56.1 ¶ 217), Defendants dispute this (Def. Resp. to Pl. 56.1 ¶ 217). Defendants allege that Plaintiff was not hired because of her previous employment history at CPC and because the candidates ultimately hired were better qualified. (Def. 56.1 ¶ 105; Grandi Decl. ¶¶ 29, 30.)
Plaintiff "can't recall" whether anyone in the 2011 interview process, including Grandi, made any statement regarding Plaintiff's gender. (Meyer Tr. at 172:17-20, 188:4-22.) When asked "why [she] believe[s] [she] w[as] discriminated again[st] based on [her] gender," Plaintiff responded
Regarding Grandi's alleged religious bias, Plaintiff claims that Grandi "made some reference" "in passing about [Plaintiff] coming from a Jewish family" in the 2011 interview. (Meyer Tr. at 180:2-24.) She also vaguely asserts that, "[t]hey knew [she] was Jewish. They knew that [she] was a hard working [sic] — interested in earning more funds. There was reference to [her] religion. There was reference to [her] ethnic background of hard working,... [and being] interested in earning extra finances. And ... there was the flavor of anti-Semitism." (Id. at 188:23-189:11.) Plaintiff does not know the religion of the individuals who filled the positions for which she applied in 2011. (Id. at 189:12-16.)
Defendants dispute Plaintiff's claim that Grandi referenced Plaintiff being Jewish. (Def. Resp. to Pl. 56.1 ¶ 148; Grandi Decl. ¶ 27.) Plaintiff's deposition testimony also contradicts this assertion on multiple occasions. For example, when asked whether Grandi "ma[d]e any comments about [her] religion in the interview," Plaintiff responded, "No. But she was well aware from my previous employment at Creedmoor that I was Jewish and modern orthodox." (Meyer Tr. at 172:21-25.) When asked whether "there [were] any statements during the [2011] interview process made with regard to [her] religion," Plaintiff responded, "I don't recall." (Id. at 189:17-20.)
Plaintiff filed this action on December 18, 2012 (Dkt. 1) and, upon agreement of the parties in light of Defendants' proposed motion to dismiss (Dkt. 10), Plaintiff filed an amended complaint on March 25, 2013 (Dkt. 11). Defendants moved to dismiss the amended complaint on July 12, 2013 (Dkt. 16), and on May 2, 2014, the Court granted that motion in part and denied it in part, dismissing Plaintiff's claims under the Age Discrimination in Employment Act ("ADEA") and the hostile work environment aspect of her Title VII claims, but permitting the remainder of Plaintiff's federal and State law claims to proceed (Dkt. 26).
Summary judgment is appropriate where the submissions of the parties, taken together, "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one part must prevail as a matter of law"). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
The initial burden of "establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336,
In determining whether a genuine issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008). The Court also construes any disputed facts in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Moreover, in the context of employment discrimination claims, "an extra measure of caution" is warranted before granting summary judgment, particularly with respect to the consideration of "circumstantial evidence," as "direct evidence of discriminatory intent is rare." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.2001). Even in the discrimination context, however, "[w]hen 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., Ltd. P'Ship, 22 F.3d 1219, 1224 (2d Cir.1994); see also Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....") (emphasis in original).
Plaintiff alleges that Defendants OMH and Creedmoor violated Title VII by discriminating against her in hiring on the basis of her gender and her religion. (Dkt. 11 ¶¶ 74-80 (Count 4), 95-101 (Count 7).)
Title VII prohibits discrimination in employment based upon certain protected characteristics, including gender and religion. 42 U.S.C. § 2000e-2. Title VII makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" based on a protected characteristic. Id.
To make out a Title VII claim, a plaintiff must meet the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green (McDonnell Douglas), 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, she must establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817; Weinstock v. Columbia Univ.,
Second, once the plaintiff has established a prima facie case, the burden shifts to the defendants "to articulate some legitimate, nondiscriminatory reason" for their adverse employment decision, which (if satisfied) rebuts the "presumption" of employment discrimination created by the plaintiff's prima facie case. Burdine, 450 U.S. at 253, 255-56, 101 S.Ct. 1089 (quotations omitted); see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) ("After a plaintiff demonstrates a prima facie case of [] discrimination, the defendant must produce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.") (quotation marks omitted) (emphasis in original); Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742 (describing the "presumption" as a "conclusion [of employment discrimination] in the absence of explanation," which the defendants' "explanation" rebuts).
Third, the plaintiff must bear the entire burden of proving that the defendants' nondiscriminatory reasons were mere "pretext for discrimination," thus establishing that she was, in fact, discriminated against. Burdine, 450 U.S. at 253, 256, 101 S.Ct. 1089. The plaintiff need only prove that her protected characteristic was a "motivating factor" that contributed to, even if it was not determinative of, the adverse employment decision. Desert Palace, Inc. v. Costa (Costa), 539 U.S. 90, 94, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (quoting 42 U.S.C. § 2000e-2(m)).
Plaintiff must first establish four elements to make out a prima facie case of discrimination based on a failure-to-hire theory: (1) she is a member of a protected class; (2) she is qualified for the positions to which she applied; (3) she suffered an adverse employment action; and (4) there exist circumstances that give rise to an inference of discrimination. Defendants do not dispute the first three prongs.
An inference of discrimination can be drawn from circumstances such as "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's [adverse employment action]." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.2001).
Plaintiff's only allegations with respect to gender are that she "did not work with any other female" other than D'Souza, Grandi, and some nurses during her time at CPC, that "[t]here were no other Jewish female older Psychiatrists at CPC or BPC," and that she "did not work with any other female physician" at BPC. (Pl. 56.1 ¶¶ 140, 143, 170.) These facts are insufficient to sustain an inference of gender-based discrimination.
It is a well-settled, albeit not dispositive, principle that where the alleged discriminator is a member of the same protected class as Plaintiff, an inference against discrimination exists and claims of discrimination become less plausible. See, e.g., Allen v. Chanel, Inc., No. 12 Civ. 6758, 2015 WL 3938096, at *5, 2015 U.S. Dist. LEXIS 84255, at *13 (S.D.N.Y. June 26, 2015) (granting summary judgment on sex discrimination claim because "when the decision-maker is in the same protected class(es) as the plaintiff-employee, courts can draw inferences against discriminatory intent," and here the decision makers were "all female" just like plaintiff); Palak v. St. Francis Hosp., No. 14-CV-4383, 2015 WL 3682805, at *8, 2015 U.S. Dist. LEXIS 76511, at *20-21 (E.D.N.Y. June 12, 2015) (collecting cases for proposition that it "provides an additional inference against discrimination" "where the person who participated in the allegedly adverse decision is also a member of the same protected class") (quotation marks omitted). Plaintiff acknowledges that Grandi, a woman, "was the recommending official with reference to the[] vacancies" for which Plaintiff applied in 2011, and "[a]ll of [Grandi's] recommendations were followed by the Executive Director." (Pl. 56.1 ¶ 200.) D'Souza, Plaintiff's direct supervisor,
Moreover, while also not dispositive, there is an inference against discrimination where the individual hired to replace a plaintiff alleging discrimination is within the same protected class. See, e.g., Fleming v. MaxMara USA, Inc., 371 Fed. Appx. 115, 117 (2d Cir.2010) (summary order) (affirming summary judgment in favor of defendant and finding no inference of discrimination where black female plaintiff alleged termination based on race discrimination but she was "replaced by another black female"); Rodriguez v. N.Y.C. Health & Hosps. Corp., No. 14 Civ. 4960, 2015 WL 5229850, at *5, 2015 U.S. Dist. LEXIS 119040, at *14 (E.D.N.Y. Sept. 8, 2015) ("It is extremely difficult, if not practically impossible to establish discrimination where, as here, plaintiff was passed over so an employer can hire another member of plaintiff's same protected class.") (quotation marks omitted); Cabrera v. NYC, 436 F.Supp.2d 635, 645 (S.D.N.Y. 2006) (finding no inference of discrimination where plaintiff alleged discrimination in failure to promote her and those promoted to the positions in question were in plaintiff's protected class); Smith v. Planas, 975 F.Supp. 303, 308 (S.D.N.Y.1997) (same). Here, one of the two positions that Plaintiff applied for in June 2011 was filled by another woman, Dr. Zinaida Yel (Def. 56.1 ¶ 107), a fact that further undercuts Plaintiff's claim of gender-based discrimination.
The only other evidence in the record regarding Plaintiff's claim of gender-based discrimination is Plaintiff's assertion that "Joseph Bachner, the Director [at CPC], did not like female employees." (Dkt. 53 at 3.) (But see Meyer Tr. at 39:11-19 (Plaintiff testified that Bachner "wasn't respectful," but she "didn't know if it was because [she] was a woman or [she] was the M.D....").)
Plaintiff admitted that Grandi herself never made any comments to Plaintiff about her gender during Plaintiff's employment with CPC, and she "do[es]n't recall" whether Grandi made any comments to Plaintiff about Plaintiff's gender during the 2011 interview. (Meyer Tr. at 54:4-6, 172:17-20.) When asked directly why she "believe[s] that Dr. Grandi discriminated against [her] based on [her]
Considering the totality of the evidence, the Court concludes that Plaintiff has not proffered any evidence that raises a genuine issue of material fact regarding an inference of gender-based discrimination with respect to Defendants' failure to hire Plaintiff in June 2011, and therefore has not made out a prima facie case of gender-based discrimination.
Plaintiff's claim of religious discrimination fares no better in the end. Although, under the beneficial standard that applies to summary judgment motions, Plaintiff has proffered sufficient evidence to establish a prima facie case of religious discrimination, this evidence is insufficient for a jury to ultimately find that Defendants' decision not to hire Plaintiff in 2011 was motivated, in any way, by religious discrimination. Thus, Plaintiff's religious discrimination must be dismissed.
As previously discussed, of the four elements that Plaintiff must establish for a prima facie case of discrimination, Defendants only challenge Plaintiff's ability to satisfy the inference-of-discrimination prong.
A plaintiff may raise an inference of discriminatory intent through evidence of overt discrimination, such as discriminatory remarks or conduct. See Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 93 (2d Cir.2013). However, "stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination." Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir.1998). See also Palak, 2015 WL 3682805, at *8, 2015 U.S. Dist. LEXIS 76511, at *19 ("In the absence of a clearly demonstrated nexus to an adverse employment action, stray workplace remarks are insufficient to defeat a summary judgment motion.").
To determine whether a remark is "probative of discrimination" or merely a "non-probative `stray remark,'" the Court must "consider factors such as: `(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).'" Sethi, 12 F.Supp.3d at 539 (quoting Henry v. Wyeth Pharm., 616 F.3d 134, 149 (2d Cir.2010)). In other words, "[t]he more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the alleged discriminatory behavior, the more probative that remark will be." Ellis v. Century 21 Dep't Stores, 975 F.Supp.2d 244, 272 (E.D.N.Y.2013) (quotation marks omitted).
Here, Plaintiff's only evidence of Defendants' alleged religious bias consists of her own testimony about supervisors and co-workers making references to her
On the first prong of the stray remark analysis, i.e., who made the remarks (e.g., a decision-maker, a supervisor, or a low-level co-worker), the only two individuals actually identified as having commented on Plaintiff's religion are Grandi and D'Souza.
On the second prong of the analysis, i.e., when the remark was made in relation to the employment decision at issue, all but one of the statements at issue are far too removed from the alleged discriminatory conduct in 2011 to be probative of discrimination. "Although there is no bright line rule regarding what length of time renders an allegedly discriminatory remark too attenuated to constitute evidence of discrimination, courts in this Circuit have generally found that a five month lapse between an allegedly discriminatory statement and an adverse employment action is too long a gap to find the remark probative of discrimination without some other evidence that the remark was related to the adverse employment action." Ellis, 975 F.Supp.2d at 276; see also Mesias v. Cravath, Swaine & Moore LLP, 106 F.Supp.3d 431, 438 (S.D.N.Y.2015) (dismissing gender and age discrimination claims in part because "time lapse between the [allegedly discriminatory] remarks and the adverse employment action suggests that the incidents were not related," where comments were made a year and a half and three months, respectively, before plaintiff's termination); Yoselovsky v. The Associated Press, 917 F.Supp.2d 262, 278 (S.D.N.Y.2013) (collecting cases); Del Franco v. N.Y.C. Off-Track Betting Corp., 429 F.Supp.2d 529, 537 (E.D.N.Y.2006) (no probative value of allegedly discriminatory comment made "slightly more than three months" prior to termination at issue). Clearly, Grandi's reference to Plaintiff coming from a Jewish family in the 2011 interview is close enough in time to have probative value with respect to an inference of religious discrimination regarding the 2011 hiring decision.
As to the third and fourth prongs of the analysis, i.e., the content and context of the remark, respectively, a reasonable juror could find that Grandi's remark about Plaintiff coming from a Jewish family, especially if made during the 2011 interview, could be indicative of religious animus in connection with the 2011 hiring decision. Though the vague nature of this reference alone would likely be insufficient to give rise to an inference of discrimination, the context, namely, that it was made without an apparent job-related purpose or justification during the interview at issue, nudges this remark over the line from stray remark to evidence of discriminatory animus.
Accordingly, based on the totality of these factors, the Court finds that Plaintiff has established a prima facie case of religious discrimination with respect to the 2011 hiring decision. (Dkt. 53 at 16-17 (even a single stray comment "may be [of] more ominous significance when considered with the totality of all the evidence") (citing Carlton, 202 F.3d at 135, and Danzer, 151 F.3d at 56).)
Because Plaintiff has established a prima facie case of religious discrimination, the Court must determine whether Defendants have established legitimate, non-discriminatory reasons for failing to hire Plaintiff for the two positions for which she applied in June 2011. Carlton, 202 F.3d at 136. The Court finds that Defendants have
"An employer's dissatisfaction with even a qualified employee's performance may, of course, ultimately provide a legitimate, non-discriminatory reason for the employer's adverse action." Gregory v. Daly, 243 F.3d 687, 696 (2d Cir.2001); see also Ehrbar v. Forest Hills Hosp., No. 13-CV-1761, 131 F.Supp.3d 5, 28, 2015 WL 5568830, at *17, 2015 U.S. Dist. LEXIS 126248, at *5-7, *49 (E.D.N.Y. Sept. 22, 2015) (defendants proffered "numerous non-discriminatory reasons for firing Plaintiff, all relating to Plaintiff's poor job performance," including poor performance during a period in which plaintiff received "generally positive annual performance evaluations"). Moreover, employers "ha[ve] discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria." Burdine, 450 U.S. at 259, 101 S.Ct. 1089. That an employer hires an individual with "superior qualifications" to Plaintiff's presents a legitimate, non-discriminatory reason for its failure to hire Plaintiff. See Ellis, 975 F.Supp.2d at 271; see also Antunes v. Putnam/N. Westchester Bd. of Co-op. Educ. Servs., No. 09-CV-3063, 2011 WL 1990872, at *7, 2011 U.S. Dist. LEXIS 54111, at *25-27 (S.D.N.Y. May 19, 2011) (finding that defendants met burden of establishing legitimate, nondiscriminatory reason for not hiring plaintiff where they established that the individuals hired instead had "superior qualifications").
Dr. Zinaida Yel, who was hired for the position at CPC's Steinway Clinic, is Board Certified (Def. 56.1 ¶ 107), whereas Plaintiff is not (id. ¶ 4). Defendants view Board Certification as demonstrating "better qualifications" for a medical professional. (Grandi Decl. ¶ 22.) Dr. Haniel Shen, who was initially hired for the second position for which Plaintiff applied, at the Assertive Community Treatment Program, had experience managing a large caseload of psychiatric patients. (Def. 56.1 ¶ 108.)
Having successfully put forth legitimate, non-discriminatory reasons for their decision not to hire Plaintiff in 2011, Defendants have rebutted any presumption of religious discrimination created by a prima facie case of discrimination. Thus, the lone remaining issue for the Court to determine is whether Defendants' purported justification for their 2011 hiring decision was mere pretext for gender and/or religious discrimination, and that the real reason for the failure to hire was such discrimination. See James v. N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000); Weinstock, 224 F.3d at 42.
Plaintiff's own cited authority (see Dkt. 53 at 21) makes clear that "the creation of a genuine issue of fact with respect to pretext alone is not sufficient." Grady, 130 F.3d at 561. Rather, "[t]here must also be evidence that would permit a rational factfinder
Plaintiff focuses on Grandi's determination prior to the 2011 interview that Plaintiff would not be considered for the positions at issue, and the fact that Grandi only interviewed Plaintiff because she was instructed to do so. (Pl. 56.1 ¶¶ 202, 204, 205.) But, even construed in the light most favorable to Plaintiff, this fact does not support any discriminatory motive with respect to Grandi's decision not to hire Plaintiff. Rather, it "suggests that [Grandi] had already determined that Plaintiff's performance was substandard" based on her prior employment with CPC, and thus "warrant[ed]" Plaintiff not being hired. See Ehrbar, 131 F.Supp.3d at 31-32, 2015 WL 5568830, at *20, 2015 U.S. Dist. LEXIS 126248, at *58-59.
Plaintiff also emphasizes the fact that Grandi told Plaintiff that she was an "excellent candidate," but that CPC was "going to look further." (Meyer Tr. at 198:4-15.) Again, this provides no evidence of discriminatory animus. That Plaintiff might have been an "excellent candidate" does not mean that there were no other candidates who were more qualified than Plaintiff, nor does it indicate that Defendants based their decision on any prohibited factor, such as religion. If anything, Grandi's statement, assuming it was made, is consistent with Defendants' asserted justification of choosing superior candidates over Plaintiff. Relatedly, the fact that Board Certification might not have been a requirement for the positions for which Plaintiff applied (see Pl. 56.1 ¶¶ 198, 199) does not undercut Defendants' valuation of such certification as demonstrating superior qualifications, nor does it permit an inference of discrimination, as Plaintiff has provided no nexus between Board Certification and religion.
Moreover, Plaintiff's "disagreement with defendants over whether her behavior [while employed at CPC] was inappropriate does not show that [Defendants'] stated reasons for [not hiring] her were not their true reasons." Fleming, 371 Fed. Appx. at 117. That there were no written comments documenting performance issues in the lone evaluation Plaintiff received during her six months at CPC in 2005, or Grandi's inability to explain why Plaintiff was hired to work at another OMH-run hospital, BPC, between 2005 to 2007, does not undercut the fact that Grandi received reports from Plaintiff's direct supervisor, D'Souza, indicating that Plaintiff "could not do her job," and that those reports formed the basis of Defendants' decision not to hire Plaintiff in 2011. (Grandi Tr. at 55:16-23.)
Plaintiff also argues that she can prove a claim of disparate treatment based on the fact that "there were no other female Jewish older psychiatrists." (Dkt. 53 at 16; Meyer Tr. at 206:2-17; Pl. 56.1 ¶ 143.) (See also Pl. 56.1 ¶ 142 ("There was only one other Jewish physician with whom Plaintiff worked at OMH."); id. ¶ 171 ("There were no other Jewish members on the treatment team [at BPC]."); Meyer Tr. at 64:11-14 (same); id. at 46:14-19 (Plaintiff "d[id]n't know of any other Jewish employees"
Plaintiff also asserts as evidence her subjective belief that "there was a flavor of anti-Semitism at OMH" (Pl. 56.1 ¶ 150; Meyer Tr. at 181:23-182:2), and that the remarks made by Alfarro at BPC "had the flavor of anti-Semitism" (Pl. 56.1 ¶ 175; Meyer Tr. at 78:19-21). These subjective beliefs, however, are simply insufficient to establish her religious discrimination claim. Sethi, 12 F.Supp.3d at 536 (Plaintiff's "mere subjective belief that [s]he was discriminated against ... does not sustain a ... discrimination claim.")
That leaves Grandi's alleged remark during the 2011 interview about Plaintiff's Jewish background as the only evidence of Defendants' alleged religious discrimination with respect to the 2011 hiring decision. This vague comment, however, is simply too thin a reed to support a jury finding of discrimination.
For the foregoing reasons, Plaintiff has failed to meet her burden under the McDonnell Douglas framework. A rational factfinder could conclude nothing more than that Plaintiff has "point[ed] to various ways in which she feels she was mistreated and argu[ed] that it must have been because of her sex ... or [religion]," but "[t]his not sufficient to sustain a claim of discrimination." Campbell v. N.Y.C. Trans. Auth., 93 F.Supp.3d 148, 173 (E.D.N.Y. 2015) (granting defendants summary judgment on plaintiff's Title VII, ADEA, and ADA claims); see Grady, 130 F.3d at 561 ("There must also be evidence that would permit a rational factfinder to infer that the [adverse employment action] was actually motivated, in whole or in part, by discrimination...."). Plaintiff's Title VII claims alleging gender-based and religious discrimination are hereby dismissed, with prejudice.
The Court turns to Plaintiff's remaining claims against Grandi under the NYSHRL and NYCHRL, alleging gender-based, religious, and age-based discrimination. (Dkt. 11 ¶¶ 60-66 (Count 2), 67-73 (Count 3), 81-87 (Count 5), 88-94 (Count 6), 102-08 (Count 8), 109-15 (Count 9).) Typically, where "all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims." Pension Benefit Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir.2013) (quotation marks omitted); see also 28 U.S.C. § 1367(c)(3) (where a court "has dismissed all claims over which it has original jurisdiction," it "may decline to exercise supplemental jurisdiction" over remaining state law causes of action).
The Court declines to exercise supplemental jurisdiction over Plaintiff's NYSHRL and NYCHRL claims.
For the reasons stated above, Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's Title VII claims, which are dismissed, with prejudice. Because the Court declines to exercise supplemental jurisdiction over Plaintiff's remaining State law claims, those, too, must be dismissed, without prejudice. The Clerk of Court is respectfully directed to enter judgment consistent with this Order.
SO ORDERED.
Defendants have raised a number of evidentiary objections to Plaintiff's Counter-Statement of Undisputed Facts. (Def. Resp. to Pl. 56.1 at 1-2.) The Court has considered these objections, though it notes that most go to the weight rather than the admissibility of Plaintiff's evidence, and finds them to be without merit as to all material facts underlying the Court's decision. As to the numerous hearsay objections propounded by Defendants ("Objection C" in Defendants' Response (Def. Resp. to Pl. 56.1 at 2)), it is true that typically a party may not rely on hearsay evidence in supporting or opposing a summary judgment motion. See Fed. R. Civ. Proc. 56(c)(2) (on a motion for summary judgment, parties may rely only on such facts as can "be presented in a form that would be admissible in evidence"); see also Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986) (Rule 56's requirements mean that "hearsay testimony ... that would not be admissible if testified to at the trial may not properly be set forth in [a Rule 56 Statement].") (quotation marks omitted); Pitton v. New York City Dep't of Educ., No. 15-CV-1235, 2015 WL 7776908, at *11 n. 4, 2015 U.S. Dist. LEXIS 161685, at *12 n. 4 (E.D.N.Y. Dec. 1, 2015) (declining to consider evidence of non-party statements because plaintiff "cannot rely on inadmissible hearsay in opposing a motion for summary judgment" and plaintiff had failed to make requisite "showing that admissible evidence will be available at trial"); Soto v. City of New York, No. 12-CV-4241, 132 F.Supp.3d 424, 459-60 n. 14, 2015 WL 5569021, at *29 n. 14, 2015 U.S. Dist. LEXIS 125481, at *16 n. 14 (E.D.N.Y. Sept. 18, 2015) ("[H]earsay evidence may not be used to support a motion for summary judgment...."). To the extent Defendants have raised a hearsay objection to evidence the Court has considered, the Court has noted its determination of that objection in each instance.
The Court has not considered a number of Plaintiff's other assertions regarding Bachner. (See Pl. 56.1 ¶¶ 138, 139.) The Court finds that these allegations are based on inadmissible hearsay, namely comments made to Plaintiff by a female doctor and a female social worker with whom Plaintiff worked and/or was acquainted at CPC, which Plaintiff proffers for their truth, that Bachner was biased against women.
Second, and more fundamentally, by Plaintiff's own admission, her employment and departure from BPC could not have had any bearing on Defendants' failure to hire her for the positions for which she applied in June 2011, and is therefore immaterial to the instant motion. Grandi "was the recommending official with reference to the[] vacancies" for which Plaintiff applied in 2011, and "[a]ll of her recommendations were followed by the Executive Director." (Pl. 56.1 ¶ 200.) But Grandi "did not learn that [P]laintiff had even been employed at BPC until the 2011 interview when [P]laintiff told her," "had no knowledge of [P]laintiff's employment at BPC or anything having to do with it," and "never communicated with anyone concerning [P]laintiff's employment at BPC and had no knowledge as to how it ended," such that "Plaintiff's employment experience at BPC could not have been a factor in Dr. Grandi's decisionmaking process with reference to the subsequent applications." (Pl. 56.1 ¶¶ 211-14; Def. 56.1 ¶ 102.)
Plaintiff's BPC-related evidence appears targeted towards a hostile work environment claim. (See, e.g., Meyer Tr. at 206:2-17 (describing basis for her complaints regarding BPC and fact "that no similarly situated psychiatrist was treated in the same manner" as the "ongoing, from day one, inappropriate hostile environment [created by] the supervising psychiatrist, Dr. Bark, at BPC...."); see also Dkt. 53 at 17 ("the whole history of dealings between plaintiff and defendants, which ... created a hostile work environment, are probative to the issue of inference.").) To the extent Plaintiff seeks to bootstrap her remaining Title VII claims on such allegations of a hostile work environment, this is unavailing, as the hostile work environment aspect of Plaintiff's Title VII claims was dismissed in this Court's Order of May 2, 2014. (Dkt. 26 at 11-13.)
