OPINION

THOMAS P. GRIESA, U.S.D.J.:

Plaintiff, a medical doctor, brought this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, and the New York State Executive Law § 296. Plaintiff, who was 60 years old at the time his complaint was filed, claims that defendants, his employers, did not consider him for a position and ultimately terminated him on the basis of his age. Plaintiff seeks to be restored to his former position, and requests compensatory damages and attorneys fees and costs.

Defendants move for summary judgment dismissing the complaint. They argue that plaintiffs case is barred by the statute of limitations and by plaintiffs failure to comply with notice of claim requirements. They also argue that plaintiff is unable to prove his claim of age discrimination. Finally, defendants argue that recent Supreme Court jurisprudence has held that the ADEA is unconstitutional as applied to state and municipal governments and that this holding bars the present lawsuit.

The motion for summary judgment is denied.

Facts

The following facts are taken from the parties' Rule 56 statements and from depositions and affidavits.

Plaintiff is a medical doctor, licensed by the State of New York and Board Certified in Radiology and Nuclear Medicine, who has practiced radiology for over 27 years. Plaintiff was born on September 3, 1937. Defendant New York Health and Hospitals Corporation ("HHC") was created by legislation in 1970 as a public benefit corporation to oversee the City's public health care system in all five boroughs. The Corporation consists of 11 acute care hospitals, 6 diagnostic and treatment centers, 4 long-term care facilities, 7 community health care centers, 46 child health clinics, 6 oral health clinics and a home health care agency. HHC also operates a health maintenance organization for Medicaid recipients.

Coler Memorial Hospital ("Coler") is a long-term care facility located on Roosevelt Island, New York, and operated by HHC. Plaintiff began work at Coler in 1990. At that time, Coler had an affiliation agreement with defendant Roosevelt Island Medical Association ("RIMA") pursuant to which RIMA provided physician services to Coler. RIMA subcontracted with Northern Metropolitan Radiology ("NMR") to provide radiology services to Coler. Plaintiff was employed by NMR and came to work as an attending radiologist at Coler through the subcontracting arrangement in May 1990. During the period of May 1990 through August 1992, plaintiff worked at Coler 10-15 hours a week and also worked, through NMR, at other hospitals. When plaintiff began working at Coler, his salary from NMR was approximately $150,000.

In September 1992, plaintiff became Director of Radiology at Coler. At the time, plaintiff was still employed by NMR. Between May 1990 and September 1992, plaintiff had apparently received salary increases such that when he was appointed Director of Radiology, his salary was around $185,000. In his capacity as Director of Radiology, plaintiff was to spend at least 30 hours per week at Coler. However, plaintiff performed services at other hospitals, through NMR, as well. Plaintiff experienced problems with this arrangement because NMR required plaintiff to perform more work away from Coler than plaintiff believed was required under his contract. Plaintiff resigned his employment with NMR on March 31, 1995. On April 3, 1995 plaintiff became employed by RIMA. Plaintiff continued, through RIMA, working as Director of Radiology at Coler at a salary of about $125,000. Plaintiff provided approximately 30 hours of services per week at Coler. Defendants testify that in order to cover radiological services at Coler when plaintiff was not physically available, RIMA was required to employ per diem radiologists at an annual cost of approximately $50,000. The cost to RIMA of providing radiological services at Coler was approximately $175,000. At the time he was hired by RIMA, plaintiff was fifty-seven years old.

During this period, plaintiff was also employed by HHC as Director or Radiology and Mammography at Segundo Ruiz Belvis Diagnostic and Treatment Center. Plaintiffs salary from HHC was approximately $75,000 per year.

In the beginning of 1996, Samuel Lehrfeld, the Executive Director of Coler and President of HHC, decided to consider a merger of the administrative and clinical functions of Coler with those of Goldwater Memorial Hospital. Both hospitals were part of HHC, were long-term care facilities, and served the same "cachement area." The purpose of such a merger was to eliminate duplicative services and to cut costs. The merger was to take place over several years and in different phases. Plaintiff became aware of the possibility of the merger in September 1995. He later became involved in the planning of the merger through service in a radiology subcommittee.

Plaintiff testified to the following at his deposition. On February 5, 1996, plaintiff met with Lehrfeld and Jeffrey Rogoff, the Chief Operating Officer of Coler, to discuss plaintiffs ideas about a merged radiology department. Lehrfeld did not tell him that there would be only one Director of Radiology at Coler/Goldwater. Plaintiff did not find out that there would be only one Director until he saw an advertisement, on February 26, 1996, for the position in the New York Times employment section. In response to the advertisement, plaintiff sent a cover letter and resume to the employment office at Goldwater. On March 4, 1996 plaintiff met again with Lehrfeld, hoping to discuss the position. The Director of Radiology position was not discussed at this meeting. Lehrfeld did not offer plaintiff the position at the March meeting, nor did they discuss plaintiffs salary requirements. Although plaintiff tried to schedule another meeting, he never met with Lehrfeld again after the March meeting to discuss the position of Director of Radiology.

Defendants' version of these facts differs from plaintiffs. Defendants state that in February or March 1996 a meeting took place, attended by plaintiff, Lehrford, Rogoff, and Dr. Dermot Frengley, at which plaintiff was offered the position of Director of Radiology for Coler/Goldwater. Dr. Frengley was the Medical Director of Coler/Goldwater. Defendants state that plaintiff requested a salary of between $225,000 and $250,000. The deposition testimony of Lehrfeld conflicts with that of Frengley on the issue of what plaintiffs salary request was. Lehrfeld testified that plaintiff asked for $250,000, while Frengley testified that plaintiff asked for $225,000. In any event, Lehrfeld told plaintiff that they would consider plaintiffs salary request. Dr. Frengley apparently spoke with plaintiff the night of the meeting, informed plaintiff that his salary demand was too high, and told plaintiff to be reasonable. Plaintiff told Frengley that he "know[s] how to negotiate." Later, Lehrfeld and the others decided that plaintiffs salary demand was too high and that other candidates should be sought. Defendants assert that if plaintiff had been hired as the Director of Radiology for Coler/Goldwater at an annual salary of $250,000, plus $50,000 to $100,000 for the additional cost of coverage by per diem radiologists for the two facilities, the total cost to RIMA would have been $300,000 to $350,000. Defendants state that only $175,000 had been budgeted for radiological services at Coler/Goldwater. Apparently, plaintiff was not notified that he was no longer being considered for the position of Director of Radiology.

Because the consolidation of Goldwater with Coler was not complete, plaintiff continued as Director of Radiology at Coler until August 1997. In June 1997, Dr. Frengley called plaintiff to his office to inform him that his position was being dissolved. Subsequently, plaintiff met with Henry Westreich, manager of RIMA, to ask him to intercede on his behalf. Westreich told plaintiff that "these decisions are made by [Lehrfeld]." Plaintiffs termination became effective on August 29, 1997.

In the meantime, RIMA was selected as the affiliate to provide physician services at Coler Goldwater. RIMA subcontracted with Cornell University Medical College ("CUMC") to provide specialty physicians to service Coler/Goldwater. CUMC recommended Dr. Bruce Cohen as the physician to provide radiological services at Coler/Goldwater, and Dr. Cohen was subsequently appointed Director or Radiology at the merged hospitals. Defendants state that Dr. Cohen provided 80% of the radiological services required at Coler/Goldwater at an annual salary of $150,000. CUMC provided the remaining 20% of the coverage at no additional cost. Plaintiff believes that Dr. Cohen was 30 or 31 years old when he was appointed Director of Radiology. Plaintiff states that Dr. Cohen was less qualified than plaintiff, in education and experience.

Plaintiff claims that at least three other older doctors were terminated during the merger process. These were Dr. Robert Osnos, 67, Dr. Sunil Bishnu, 65, and Dr. Sylvia Segall, 59. Defendants acknowledge that these individuals left Coler/Goldwater, but assert that none of them was terminated. Dr. Osnos retired, effective June 30, 1997. Dr. Bishnu retired, effective December 31, 1996. Dr. Segall was not an employee of defendants. She was working at Coler pursuant to an affiliation contract with New York University. The affiliation contract was discontinued during the consolidation, resulting in Dr. Segall's departure. Defendants also state that each of these individuals were replaced by doctors of equivalent age.

Discussion

On a motion for summary judgment, the court must determine whether genuine issues of material fact exist between the parties which should properly be submitted to a jury. Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Where no issues of material fact are found, the moving party is entitled to judgment as a matter of law. Id. Even where facts are disputed, in order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). When examining the evidence, the court should resolve all ambiguities and draw all inferences in favor of the non-moving party. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Thus, "if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Howlev v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000).

Statute of Limitations

Under the ADEA, a plaintiff in a "deferral state" such as New York must first file an administrative charge with the EEOC within 300 days of the alleged violation in order to preserve his right to bring a lawsuit. 29 U.S.C. § 626 (d), 633(b). Defendants argue that plaintiffs age discrimination claims must be dismissed because plaintiff failed to comply with this requirement. Defendants assert that plaintiffs EEOC charge, dated December 4, 1997, alleges that the acts of discrimination occurred in January of 1996, more than 300 days before the filing of the EEOC charge.

In fact, plaintiffs EEOC charge does not allege that any discrimination occurred in January of 1996. According to the charge, January of 1996 was the date of the Coler/Goldwater merger. With respect to the date on which the alleged acts of discrimination occurred, the charge states: "On August 29, 1997, I was officially terminated as Director of Radiology at Coler and rejected for the position of Director of Radiology by RIMA and HHC." Calculated from August 29, 1997, plaintiffs EEOC charge, filed on December 4, 1997, was well within the 300 day statute of limitations.

Notice of Claim Requirement

Defendant also moves for summary judgment with respect to plaintiffs claims brought under the New York State Human Rights Law on the ground that plaintiff failed to file a notice of claim pursuant to New York General Municipal Law § 50-e. New York law requires that, in actions against municipal corporations, notice of certain types of claims be filed within 90 days of when the claim arises. Hardy v. New York City Health Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). It is required that plaintiff plead in the complaint that: (1) plaintiff served notice of the claim; (2) at least 30 days have elapsed since the notice was filed; and (3) in that time the defendant has neglected to or refused to adjust or satisfy the claim. N.Y. Gen. Mun. Law § 50-i. Failure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action. Brown v. Metropolitan Transport. Auth., 717 F. Supp. 257, 259 (S.D.N.Y. 1989).

Under New York law, discrimination claimants are not required to file notices of claim. Both General Municipal Law § 50-i and Unconsolidated Law § 7401(2) (dealing with actions against HHC) define the torts for which a notice of claim is required as personal injury, wrongful death, or damage to property claims only. Sebastian v. New York City Health and Hospitals Corporation, 634 N.Y.S.2d 114 (App.Div. 199 5). The requirement does not apply to torts generally. Id. Defendants argue that in Mills v. County of Monroe, 464 N.Y.S.2d 709 (1983), the New York Court of Appeals reached a result contrary to what is stated above. However, in Mills, the Court of Appeals based its decision on a county law requiring notice of claims, including claims of invasion of personal rights. It did not rely on the notice of claim requirement provided for in the General Municipal Law. Thus, the holding in Mills is not applicable here.

Plaintiff was not required to file a notice of claim under New York law. His failure to do so does not militate dismissal of this case.

Discrimination Claims

The ADEA provides that it is "unlawful for an employer . ., to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). ADEA claims are analyzed under the same framework as claims brought under Title VII of the Civil Rights Act of 1964. Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994).

In an employment discrimination case, the plaintiff has the initial burden of "proving by a preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). In order to establish a prima facie case, the plaintiff must show that he was "(1) within the protected age group; (2) qualified for the position; (3) discharged; and (4) that such discharge occurred under circumstances giving rise to an inference of discrimination." Carlton v. Mystic Transportation Inc., 202 F.3d 129, 134 (2d Cir. 2000). The burden of establishing a prima facie case has been characterized as "minimal."Id. at 134. In ADEA cases a plaintiff may make out a prima facie case of age discrimination by showing that he belongs to the protected group (40 to 70 years of age), that he was sufficiently qualified to continue holding his position, that he was discharged, and that his position thereafter was filled by someone younger than himself or held open for such a person. Haskell v. Kaman Corp., 743 F.2d 113, 120 n. 1 (2d Cir. 1984).

Plaintiff has clearly established a prima facie case of age discrimination. It is undisputed that plaintiff is a member of the protected group, that he was qualified to continue holding his position, that he was discharged, and that he was replaced with a younger individual.

Once plaintiff has established a prima facie case, a rebuttable presumption of discrimination arises. Carlton, 202 F.3d at 134. The burden of production then shifts to the employer to articulate a legitimate, non-discriminatory reason for discharging the employee. Id. If the employer articulates a non-discriminatory reason for its employment decision, the presumption of discrimination raised by the prima facie case "simply drops out of the picture," St. Mary's Honor Ctr., 509 U.S. at 510-11, and the plaintiff must show that his age was the real reason for his discharge. Woroski, 31 F.3d at 108. On a summary judgment motion, then, a court must decide whether the plaintiff introduced enough evidence that reasonable people could find that discrimination existed.Schnabel v. Abramson, 2000 WL 1676601, at *7 (2d Cir. 2000).

In some cases, "a prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133 (2000). However, evidence of falsity is not sufficient in every case, mandating a case-by-case determination of whether the plaintiff has created a reasonable inference that age was a determinative factor in the actions of which he complains. Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000). Such an evaluation should consider a number of factors, including "the strength of the plaintiffs prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and may be properly considered on a motion for judgment as a matter of law." Reeves, 530 U.S. 133. However, in some cases, "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Id. at 147.

Defendants state that plaintiff was not selected for the position of Director of Radiology, and was subsequently terminated, because plaintiff priced himself out of consideration by demanding an annual salary of $250,000. Defendants' assertion that plaintiff was not hired because his salary demand was too high is a legitimate, non-discriminatory reason for the employment actions alleged here. It is sufficient to shift the burden back to the plaintiff, who must present sufficient evidence for a reasonable jury to conclude that defendants discriminated against him because of his age.

Plaintiff attempts to do so largely by asserting that defendants' explanation is false. In addition to his own testimony, however, plaintiff has submitted several documents that support his contention that he was not offered the position in February or March of 1996, as defendants suggest, but that he applied for the position after seeing an advertisement for it in the New York Times. Plaintiff submits the New York Times advertisement, dated February 25, 1996, soliciting applications for the position of Director of Radiology of Coler/Goldwater. Also there are plaintiffs letter and resume, dated February 26, 1996, in which plaintiff applied for the position. Plaintiff has also provided a letter, dated April 16, 1996, from the Assistant Personnel Director of Coler/Goldwater stating that plaintiffs resume had been received, but that the interviewing process had been delayed.

Plaintiff has stated in his declaration in opposition to defendants' motion for summary judgment that several other older employees were threatened with demotion or removal, but that these employees had vested pensions and were able to retire instead. These individuals were Dr. Robert Osnos, 67, Dr. Sunil Bishnu, 65, and Dr. Sylvia Segall, 59. Plaintiff states that these employees had excellent records of service at Coler, and that they were replaced by younger, less qualified employees. Defendants dispute the contention that any action was taken against Drs. Osnos, Bishnu and Segall on the basis of their age, and points out that they were replaced by physicians between the ages of 58 and 62.

Defendants have submitted the depositions of Lehrfeld and Frengley, whose testimony supports defendants' contention that plaintiff was offered the position at a meeting in March 1996 and that plaintiff made an unreasonable salary demand, thereby removing himself from consideration. However, defendants have submitted no documentary evidence that such a meeting occurred. Moreover, the testimony of Lehrfeld conflicts with that of Frengley on the issue of what plaintiffs salary request was. Lehrfeld testified at his deposition that plaintiff asked for $250,000, while Frengley testified that plaintiff asked for $225,000.

Together, the evidence described above creates questions of fact. This is not a case in which "the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or [where] the plaintiff create[s] only a weak issue of fact as to whether the employer's reason [is] untrue and there [is] abundant and uncontroverted evidence that no discrimination occurred." Reeves, 530 U.S. at 148.

Constitutionality

In the recent case of Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), the United States Supreme Court held that, although the ADEA does contain a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity, that abrogation exceeded Congress' authority under § 5 of the Fourteenth Amendment. Defendant argues that this holding mandates dismissal of this lawsuit.

The New York City Health and Hospitals Corporation is a public benefit corporation created by statute. N.Y. Unconsol. Laws § 7384 et seq. Under the statute, HHC retains the power "[t]o sue and be sued". § 7385(1). Through this language the New York legislature manifested a clear intent to waive Eleventh Amendment protection for the purposes of the HHC. Thus, there has been a clear waiver of sovereign immunity independent from the provision of the ADEA struck down by the Supreme Court in the decision in Kimel, and the holding in Kimel does not require dismissal of this lawsuit.

Conclusion

For the reasons stated above, the motion for summary judgment is denied.

SO ORDERED.