Opinion
01 Civ. 8556 (HB)
July 16, 2002
OPINION ORDER
Continuum Health Partners, Inc. ("Continuum") and The Long Island College Hospital ("LICH") (collectively, "defendants") move for summary judgment on all claims asserted by Chuan-Guo Xiao, M.D. ("plaintiff') pursuant to Fed.R.Civ.P. ("FRCP") Rule 56(c). Specifically, plaintiff alleges that defendants (1) discriminated against him on the basis of national origin; (2) breached their contract with him by allegedly terminating him from LICH without cause; and (3) tortiously interfered with his property and contract rights. Oral argument on defendants' motion was heard on June 17, 2002. For the reasons detailed more fully below, defendants' motion for summary judgment is granted.
BACKGROUND
Plaintiff, a Chinese national, is a former researcher in the Department of Urology at LICH. Plaintiff was hired by Ciril Godec ("Godec"), Chairman of the Department of Urology at LICH, as Director of Urologic Research in January 1991 and simultaneously received a faculty appointment as Assistant Professor at Downstate, an academic affihate of LICH; at that time, he had already secured a grant ("first grant") that he brought with him to LICH. (Godec Aff. at ¶ 2). When this grant ended on or about 1994-95 or 1997, LICH told plaintiff that he would have to secure funding from another source to support his salary. (Xiao Dep. at 37). To that end, plaintiff began preparing a second grant application to submit to the National Institute of Health ("NIH"). During the two years that passed between the time the first grant expired and the second grant was awarded (1997 — September, 1999), plaintiff was preparing the second grant application. He was compensated from an LICH endowment fund. (Id. at 3 9-40; Godec Aff. at ¶ 4). Defendants contend that the first grant concluded in 1995 and LICH paid plaintiff for four years while he worked on his second grant application, whereas plaintiff contends that the first grant concluded in 1997. It does not matter. In or about June 1998, plaintiff submitted the second grant application to NIH. (Xiao Dep. at 122, Ex. 9). On or about September 24, 1999, NIH awarded the second grant ("second grant") to LICH, naming LICH as the grantee institution and plaintiff as the head of research or "principal investigator" ("PI"). (Id. at 41). As the PI, plaintiff was responsible for directing the research and allocating the NIH funds. (Id. at 32). The grant budgeted four years of funding to be disbursed annually, subject to renewal, for each of the four years, including $103,606 in the first year to fund the salaries of those working on the grant. Plaintiffs expected annual salary under the terms of the grant was approximately $70,000. (Id. at Ex. 3).
As discussed more fully below, although the parties disagree with respect to when the first grant ended, the precise date is irrelevant.
It should be noted that plaintiff conducted some research for the second grant application in China from February 23 through March 30, 1999. (Godec Dep. at Ex. 1). In addition, after the first grant ended plaintiff also performed limited duties as the Director of the Kidney Stone Center. (Xiao Dep. at 40-41, 119).
After LICH was awarded the grant in the fall of 1999, plaintiff became increasingly more demanding. Specifically, plaintiff demanded a five-year employment contract, a salary in excess of that provided by the grant, and relocation from the office he had at LICH to a more prestigious space. (Godec Dep. at 69; Xiao Dep. at 105-06). Although Godec discussed plaintiffs request for a five-year contract with Dr. Allan Gibofsky ("Gibofsky"), who became President of LICH on October 1, 1999, Gibofsky refused on the ground that the second grant did not require LICH to provide plaintiff with a contract and that, in any event, no doctor at LICH had a contract that was longer than three years. (Godec Dep. at 59-61; Gibofsky Aff. at ¶ 9). In addition, although LICH and plaintiff had discussed the space that plaintiff would use prior to receiving the grant, plaintiff nevertheless demanded a different space after LICH was awarded the grant in the fall of 1999. (Godec Dep. at 69). In an effort to resolve plaintiffs concerns, representatives from LICH held a meeting with him on or about February 1, 2000, during which it was agreed that plaintiff could transfer to Downstate Medical School. an affihate of LICH ("Downstate"), and take the grant with him. (Xiao Dep. at 118). In addition, Downstate would provide plaintiff with a three-year contract and an annual salary of $115,000. (Id. at 119). At a meeting held on February 3, the parties executed a letter agreement that included these terms, among others. (Id. at Ex. 25). Plaintiff disagreed with the terms of the agreement and continued to voice his demands. Consequently, LICH terminated his employment on February 14, 2000. (Xiao Dep. at Ex. 29; Godec Dep. at 71-72).
It should also be noted that from fall 1999 to February 2000, plaintiff refused to do any research whatsoever under the second grant, and too that it was during this time that Godec allegedly made discriminatory comments to plaintiff based on his national origin. Specifically, plaintiff claims that, before the second grant was awarded in September 1999, Mr. Ma, plaintiffs assistant ("Ma"), told him that Godec said that Xiao would not be having such a hard time getting the NIH grant if he were not Chinese. (Xiao Dep. at 302). In addition, plaintiff also claims that in January, 2000, Godec responded to plaintiffs demand for a contract with the following: "We will let the FBI investigate you. Do you know the Chinese spy Wenheh?" (Compl. at ¶ 13). For reasons detailed more fully below I do not find that, even if Godec made these comments, they create an inference of discrimination sufficient to avoid summary judgment.
The following day, LICH had a conference call with NIH regarding the status of the second grant in light of plaintiffs termination, and NIH explained that LICH had several options: (i) transfer plaintiff to Downstate and keep him as the PI; (ii) find a new PI to replace plaintiff; or (iii) relinquish the grant completely. (Godec Aff. at ¶¶ 17-18). Because LICH was anxious to keep the grant, LICH chose to explore the first two options. Accordingly, on February 17, 2000, LICH encouraged plaintiff to sign the February 3 agreement, which provided that plaintiff (along with the NIH grant) would transfer to Downstate and Downstate, in turn, would subcontract the clinical portion of the research back to LICH. On February 17, plaintiff signed the February 3 agreement. (Xiao Dep. at 222-23; Godec Aff. at ¶¶ 19-20). In addition, on April 24, 2000, Gibofsky presented a letter to plaintiff containing LICH's final proposal regarding the transfer of plaintiff to Downstate; that proposal provided for the following: (i) LICH would relinquish the second grant to Downstate pending NIH approval; (ii) plaintiff would be responsible for completing the paperwork necessary to effect the substitution as well as all reports required in connection with the research; (iii) plaintiff would thereafter be an employee of Downstate rather than LICH; and (iv) any arrangements that plaintiff reached with Downstate concerning his employment there would not involve LICH. (Xiao Dep. at 257-61, Ex. 34). Plaintiff rejected Gibofsky's proposal outright as "unacceptable;" it is unclear from the papers what exactly precipitated plaintiffs rejection. (Xiao Dep. at 261). Although LICH explored other options with plaintiff regarding the grant, it ultimately postponed relinquishing the grant while it continued to search for a new PI. In that regard, defendants solicited names for potential replacements for plaintiff. (Def. memorandum at 11).
On June 12, 2000, plaintiff filed a lawsuit in New York State Supreme Court, Kings County, alleging that LICH wrongfully discharged him in breach of an implied contract of employment. In that complaint, plaintiff did not make any claims of national origin discrimination. (Xiao Dep. at 271, 285, Ex. 39). More than four months later, in October, 2000, plaintiff filed a complaint of national origin discrimination with the New York State Division of Human Rights, which was dual-filed with the Equal Employment Opportunity Commission ("EEOC"). (Xiao Dep. at 281, 287, Ex. 41). After plaintiff received a right to sue letter from the EEOC in June, 2001, he filed this lawsuit in September, 2001. Plaintiff claims that LICH discriminated against him because he is Chinese by terminating him without NIH approval, by not relocating his office, by not providing him with a contract, and by not paying him for time that he spent in China. (Xiao Dep. at 307, Ex. 42).
By October 2000, LICH concluded that it could not find a new PI, and consequently relinquished the NIH grant on November 1, 2000. (McDougle Aff. at ¶ 2, Ex. 1).
DISCUSSION
Plaintiff brings three claims against defendants: (1) national origin discrimination under Title VII; (2) breach of implied contract; and (3) tortious interference with contract and property rights. Because I am dismissing plaintiffs only claim that confers federal jurisdiction — his Title VII claim — I decline to exercise supplemental jurisdiction over the two remaining state law claims. See 28 U.S.C. § 1367 (c)(3); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.").
1. Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); FRCP Rule 56(c). A dispute regarding a material fact is genuine ""if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."' Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, cert. denied, 506 U.S. 965 (1992)). The court resolves all ambiguities and draws all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide. Aldrich, 963 F.2d at 523. In Title VII cases alleging adverse action, the plaintiff need make only a de minimis showing in its prima facie case in order to defeat a motion for summary judgment. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995). However, a scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 250. Although the Second Circuit has cautioned that on a motion for summary judgment, "especially in the context of a claim of discrimination, the court should not view the record in piecemeal fashion," Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d Cir.200 1), that court also recently stated that "[i]t is now beyond cavil that summary judgment may be appropriate even in the factmdashiintensive context of discrimination cases. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.200 1). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 (2000) (reiterating "that trial courts should not "treat discrimination differently from other ultimate questions of fact.' ") (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)).
2. National Origin Discrimination Claim
In order to prove a discriminatory termination or any discriminatory adverse employment action under Title VII, the plaintiff must first establish a prima fade case by proving the following four elements: (1) that he is a member of a protected class, (2) that he is qualified for his position, (3) that he has suffered an adverse employment action; and (4) that the circumstances surrounding that action give rise to an inference of national origin discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Ongsiako v. City of N.Y. NYC Dep't of Env. Protection, 199 F. Supp.2d 180, 188 (S.D.N.Y. 2002) (applying McDonnell Douglas test to case involving allegations of national origin discrimination). If the plaintiff is able to make out his prima facie case, a de minimis burden, a presumption of discrimination arises and the burden of going forward shifts to the employer, who can rebut it by articulating a legitimate, nondiscriminatory reason for the adverse employment action. Alexander v. Turner Corp. et al., No. 00 Civ. 4677 (HB), 2001 WL 225049, at *3 (S.D.N.Y. Mar. 2, 2001). Should the defendant successfully shoulder this burden, "the presumption of discrimination vanishes and the burden shifts back to the plaintiff to come forward with evidence that the employer's proffered explanations were merely pretextual and that the actual motivations more likely than not were discriminatory." Id. (quoting Abdu-Brisson, 239 F.3d at 469). Further, the court must engage in a "case-by-case approach, [and] examin[e] the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quotation omitted).
Plaintiff claims that he suffered the following adverse employment actions because he is Chinese: (i) LICH refused to pay him while he was performing research in China; (ii) LICH refused to provide him with an office of his choice after the building on 112 Pacific St. closed down; (iii) LICH never provided him with a contract after LICH was awarded the second grant; and (iv) LICH terminated his employment without cause. Turning to the four prongs of the prima facie case, defendants do not contest that plaintiff has satisfied the first two prongs, namely, that he is a member of a protected class and is qualified for his position. Rather, defendants contend that plaintiff is unable to show that any of the actions taken against him occurred under circumstances giving rise to an inference of national origin discrimination, and that, even if plaintiff could establish a prima facie case, which he cannot, he is still unable to prove that defendants' reason was pretextual and that the real reason for their actions was national origin discrimination.
With respect to (i), LICH contends that it is undisputed that plaintiff was paid for his work abroad in 1999, and advert in particular to a memorandum from Godec to then LICH Vice President Bill Madden, in which the former requested that plaintiff be paid for a total of twenty-six days for work performed in China, from February 23 through March 30, 1999. (Godec Dep. at Ex. 1). For this reason, defendants maintain that plaintiff fails to make out aprimafacie case of discrimination based on the fact that defendants did not pay him for work performed in China. I agree. Indeed, Godec's letter plainly indicates that defendants did pay plaintiff for this work. In addition, I also concur with defendants that plaintiff cannot avoid summary judgment merely by his conclusory statements to the contrary.
With respect to (ii), LICH contends that at the time the building on Pacific Street closed in late 1998, plaintiff was not performing any research and did not require a lab, yet "[f]rom these unremarkable events, Plaintiff developed the `feeling' that he was not relocated from 112 Pacific because of his Chinese national origin.'" (Def. memorandum at 15, citing Xiao Dep. at 283-84). In addition, although LICH did indeed try to accommodate plaintiffs demands by offering him an office space on the first floor of the Henry Street building as well as one on the sixth floor of the Othmer Building, plaintiff refused. (Godec Dep. at 29-30). I agree with defendants that plaintiff fails to satisfy even his de minimis burden simply by an assertion that the reason defendants refused to entertain his requests for a larger office space was due to his national origin.
With respect to (iii) and (iv), LICH contends that it did not acquiesce to plaintiffs demand for a five-year contract both because of plaintiffs position that a fiveyear contract for him was non-negotiable and because historically three year contracts were the longest the hospital ever provided, not because he is Chinese. Once again, I agree with defendants that LICH's refusal to grant plaintiffs request for a five-year contract in no way raises an inference of discrimination. The record indicates that Gibofsky was indeed willing to sign a three-year contract with plaintiff (pursuant to the February 3 agreement), but that plaintiff repeatedly insisted that LICH sign a five-year contract instead. (Godec Dep. at 67-69). Indeed, even if I were to find that LICH's refusal to sign a five-year contract with plaintiff or to convert his status from an employee-at-will to one with a fixed duration (of five years) raised an inference of discrimination, which I do not, I would still find that defendants provided a legitimate, nondiscriminatory reason for refusing to do so. Indeed, defendants have convincingly demonstrated that plaintiffs failure to secure a contract was the result of his own increasing demands and his refusal to negotiate on any terms save his own.
While both parties appear to treat these claims separately, I see no distinction between them insofar as they both implicate plaintiffs contractual concerns and will therefore treat them as a single claim.
Relatedly, I agree with defendants that plaintiff erroneously contends that LICH could not terminate his employment without prior approval from NIH based on the fact that an implied contract was allegedly created by the grant. Because I am not exercising supplemental jurisdiction, I need not determine whether or not an implied contract between LICH and plaintiff arose out of the NIH grant. Nonetheless, it is worth noting and it is undisputed that LICH obtained NIH approval to terminate plaintiff during the conference call on February 15, 2000.
Defendants contend, too, that plaintiff is unable to support his allegations of national origin discrimination by proffering the evidence of two stray remarks allegedly made by Godec. More precisely, plaintiff claims that before the second grant was awarded in September 1999, Godec said that plaintiff would not be having such a hard time getting the NIH grant if he were not Chinese. In addition, plaintiff also claims that when he threatened to take his grant to another institution if LICH refused to provide him with a contract, Godec said: "We will let the FBI investigate you. Do you know the Chinese spy Wen Ho Lee?" Defendants contend that even if Godec did make these comments, which he denies, plaintiff cannot avoid summary judgment solely on the ground of two casual comments. See Stembridge v. City of New York, 88 F. Supp.2d 276, 286 (S.D.N.Y. 2000) (alleged single reference to plaintiff as "uppity nigger" combined with five other alleged racial comments and one racial epithet over a three-year period insufficient to establish claim); Alexander, 2001 WL 225049, at *3 ("A single comment made in the course of a ten years employment does not come close to satisfying plaintiffs burden"). Additionally, defendants argue that the first comment does not reflect anti-Chinese sentiment but rather Godec' s belief regarding a possible reason for the delay in the NIH's approval of plaintiffs grant application (that is, because he was Chinese); and the second comment raises no inference of discrimination since "it is wellsettled that no inference of discrimination can be drawn where the same person who hired an individual knowing that he was in a protected class later takes action against that individual." (Def. memorandum at 19, citing Grady v. Affihated Cent. Inc., 130 F.3d 553, 560 (2d Cir. 1997)).
While I agree with defendants that neither comment raises an inference of discrimination, I disagree with the reasoning as it applies to the second comment. Defendants' position may be the law where the time span is short. See. e.g., Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) ("[I]n cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer"). But that is not this case. Here, plaintiff was initially hired by Godec in 1991 and terminated by him in 2000 — nearly a ten-year time span. For this reason, an inference of discrimination would not necessarily be undermined by the fact that Godec did both the hiring and the firing.
In short, plaintiff has failed to demonstrate that he was terminated for national origin discrimination or that defendants' legitimate business reason is pretextual. Defendants have articulated a legitimate business reason for plaintiffs termination — namely, an inability to deal with plaintiffs increasing and non-negotiable demands. Furthermore, defendants' efforts to work out a deal with plaintiff— the February 3 agreement which, as noted supra, plaintiff initially consented to — strongly suggests that defendants made a good-faith effort to address plaintiffs demands and to keep him as the PI on the second grant. Clearly, for pure business reasons they wanted to keep the grant or so much of it as they could. Accordingly, plaintiff has failed to meet even the de minimis burden required to make out aprimafacie case and defeat defendants' motion for summary judgment.
CONCLUSION
For the foregoing reasons, defendants' motion for summary and plaintiffs federal and pendent state law claims remove this case from my docket.