Opinion
97 Civ. 5542 (BSJ)
May 23, 2000
OPINION ORDER
David Hayt alleges in this action against Cornell University Medical College ("Cornell") that Cornell improperly terminated his employment due to his age. His complaint alleges that Cornell's decision not to renew his employment violated various federal, state, and local laws, including: (i) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (ii) the New York State Human Rights Law ("NYSHRL"), as amended, New York Executive Law § 296 et seq.; and (iii) the Administrative Code of the City of New York, § 8-107 et seq. Cornell now moves for summary judgment dismissing the complaint. Because Hayt has not introduced any evidence that raises a triable issue of fact, defendant's motion is granted.
Cornell University Medical College is now known as Weill Medical College. And although plaintiff also originally named, New York Hospital-Cornell Medical Center, now known as New York Presbyterian Hospital, as a defendant, he subsequently withdrew those claims.
BACKGROUND
The following facts are, unless otherwise noted, undisputed or as alleged by the plaintiff. Plaintiff David Hayt is a physician with a specialty in radiology. After receiving his medical degree from Cornell in 1956, Hayt completed his internship at Lenox Hill Hospital and his residency in radiology at the New York Hospital. In July 1986, at the age of 55, Hayt returned to Cornell as an Associate Professor of Clinical Radiology and director of the division of General Radiology. In July 1989, Hayt became an Associate Professor of Radiology at Cornell, a position he held until he was not renewed in June 1997. Hayt was not tenured, but was employed at Cornell on a series of one-year contracts.
In 1995, Cornell hired Dr. Dirk Sostman to become the new chair of the Department of Radiology. Dr. Sostman was hired by Cornell to rebuild a department that Cornell perceived as being mediocre clinically and academically, unsuccessful financially, and otherwise in disarray. Dr. Sostman reorganized the department. Previously, the Department of Radiology was organized by divisions primarily on a "modality" basis, depending on the type of radiology technique performed (e.g., plain film, CT, ultrasound). Dr. Sostman's new divisions were based on organ or body-part orientation (e.g., chest, abdomen). As a result, Outpatient General Radiology, where Dr. Hayt had worked, was dissolved and its responsibilities were divided up among the new divisions. Each of these divisions was responsible for inpatient and outpatient services and the full range of applicable radiology techniques.
On or about June 12, 1996, plaintiff was informed by Sostman that his faculty appointment at Cornell would not be renewed and that his employment would terminate on June 30, 1997. Dr. Hayt was 66 at the time of his termination.
I.
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2nd Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgment is improper 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. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986).
II.
Plaintiff's original complaint claimed that Cornell had intentionally discriminated against him by treating him disparately. A disparate treatment claim alleges that the plaintiff was intentionally discriminated against because of membership in a protected class, in this case, the class is all those 40 years of age and older. Such a claim under the ADEA is governed by the three-step procedure established for racial discrimination actions brought pursuant to the Civil Rights Act of 1964 in McDonnell Douglas v. Green, 411 U.S. 792 (1973) andTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).See Hollander v. American Cyanamid Co., 172 F.3d 192, 198-99 (2d Cir. 1999), cert. denied, 120 S.Ct. 399 (1999).
First, the plaintiff must establish a prima facie case by showing four elements: 1) that he was within the protected age group, 2) that he was qualified for the position at issue, 3) that he suffered an adverse employment decision, and 4) that the the discharge occurred under circumstances giving rise to an inference of age discrimination. See Hollander, 172 F.3d at 199;Raskin v. Wyatt Co., 125 F.3d 55, 63-64 (2nd Cir. 1997).
Once a plaintiff has established a prima facie case, the burden of production shifts to the employer to rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. See Hollander, 172 F.3d at 199;Bickerstaff v. Vassar College, 196 F.3d 435, 446 (2nd Cir. 1999) (citing Fisher, 114 F.3d at 1335-36). The defendant's burden of production is minimal. See Bickerstaff, 196 F.3d at 446. Although the burden of production shifts to the defendant, the ultimate burden of persuasion remains always with the plaintiff.See St. Mary's, 509 U.S. at 507, 511.
If the defendant proffers a legitimate, nondiscriminatory reason for a challenged employment action, "the presumption raised by the prima facie case is rebutted, and drops from the case." St. Mary's, 509 U.S. at 507 (internal quotations and citations omitted). "The plaintiff then has the opportunity to show that the reason offered by the employer was not its true reason, and that age was. The question that must be asked is whether the plaintiff has shown, by a preponderance of the evidence, that he has been the victim of age discrimination."Hollander, 172 F.3d at 199.
As the Second Circuit has held,
[w]hen a court comes to consider . . . upon defendant's motion for summary judgment . . . whether the evidence can support a verdict of discrimination, . . . the judge must analyze the evidence, along with the inferences that may be reasonably drawn from it, and decide if it raises a jury question as to whether the plaintiff was the victim of discrimination.Fisher, 114 F.3d at 1347. Since the ADEA was intended to prohibit only an employer's use of the forbidden criterion of age, the use of any other criterion or qualification for employment is not affected. See Thornley v. Penton Publ'g. Inc., 104 F.3d 26, 29 n. 2 (2nd Cir. 1997). Therefore, absent a showing by the plaintiff of the employer's bad faith, an employer is "not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury." Thornley, 104 F.3d at 29. See also Montana v. First Fed. Sav. and Loan Ass'n, 869 F.2d 100, 106 (2nd Cir. 1989) (cautioning that a court cannot substitute its own judgment for a business judgment so long as the employment decision was not discriminatory); Stanojey v. Ebasco Servs., Inc., 643 F.2d 914, 921-22 (2nd Cir. 1981) (employee may be discharged "on the basis of subjective business judgments, for any reason that is not discriminatory") (citation omitted). "`This Court does not sit as a super-personnel department that reexamines an entity's business decisions.'"Scaria v. Rubin, 117 F.3d 652, 655 (2nd Cir. 1997) (per curiam) (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)).
This procedure is the same for the state and local claims under New York State law and New York City ordinance. "Age discrimination suits under the NYSHRL get the same analysis as claims under Title VII or the ADEA." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2nd Cir. 1997). Therefore, the analysis for plaintiff's ADEA claim is identical to the analysis for his state and local claims.
A. The Prima Facie Case
Plaintiff has met his burden of establishing a prima facie case. Cornell properly concedes that Hayt belongs to a protected class (i.e., he is 40 or over) and that he was subject to an adverse employment decision (i.e., he was terminated). Cornell disputes that plaintiff was qualified for the job, maintaining that Dr. Hayt lacked both the outstanding academic qualifications required and the skills necessary to perform certain techniques in the new, reorganized department, specifically computerized tomography ("CT"), magnetic resonance imaging ("MRI"), and ultrasound techniques. Plaintiff responds that he had in fact been trained in and has extensively utilized those technologies. Plaintiff's affidavit is sufficient to meet this element of theprima facie case.
Plaintiff's position was eliminated in the reorganization, and, perhaps as a result, the record gives little indication — as do the parties' submissions — of whether plaintiff was "replaced" by someone not in the protected class. I note that the new division heads in the reorganized department were over 40 years old (i.e., members of the protected class). Aside from plaintiff's dubious statistical evidence, which the Court addresses below, there is simply no evidence in the record that supports an inference of unlawful discrimination, aside from the mere fact of the plaintiff's age. However, plaintiff's burden at this stage is de minimis. Therefore, the Court assumes in the plaintiff's favor a prima facie case of age discrimination.
B. Non-discriminatory Reasons
Because the Court assumes Dr. Hayt has made out a prima facie case, the burden shifts to Cornell to offer legitimate, nondiscriminatory reasons for his termination. Cornell must articulate a reason that "if true, would connote lawful behavior," Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2nd Cir. 1998), and it has done so. Cornell claims that plaintiff was terminated because (i) he did not have acceptable clinical skills for the level of care required at an academic hospital, (ii) the overall quality of his diagnostic work was poor and too vague, and (iii) he was not qualified to be a division director in the reorganized department because he was not skilled enough in every imaging technology. Plaintiff concedes that Dr. Sostman had reviewed his diagnoses and found several errors, prompting Sostman to schedule a regular review of Hayt's work. Each of these reasons would alone be a legal and sufficient reason to terminate an employee. Therefore Cornell has set forth legitimate and non-discriminatory reasons for its decision to terminate its employee. Pursuant to McDonnell Douglas, the burden now returns to plaintiff to raise a triable question of fact about whether defendant's asserted reasons are a pretext for discrimination. See 411 U.S. at 804.
C. Pretext for Discrimination
To survive summary judgment, it now is incumbent upon plaintiff to offer evidence that defendant's reasons for firing him are false and that intentional discrimination on the basis of age was a motivating factor. Given the abundance of evidence presented by defendant in support of its motion, plaintiff faces "a formidable task in endeavoring to show that the asserted reason" for his termination was false and that Cornell's motivation was discriminatory. See Lieberman v. Gant, 630 F.2d 60, 66 (2nd Cir. 1980)
Plaintiff has failed to offer such evidence. Instead, plaintiff merely argues that he was and is qualified for continued employment at Cornell. Even assuming that is true — and there is evidence in the record that supports such a conclusion — there are no facts in the record which support an inference of age discrimination. The record reveals not a single derogatory comment, no incriminating writings, no witnesses who attest to defendant's improper intent. In short, Cornell describes Dr. Hayt as a reasonably competent clinical radiologist inadequate for an academic center and tertiary or quaternary care hospital. Hayt strenuously disagrees. However, this dispute among the parties over Dr. Hayt's abilities and qualifications does not in and of itself support an inference of unlawful discrimination, even when all inferences are drawn in plaintiff's favor.
To support such an inference, plaintiff relies solely on the statistical evidence of Harriet Zellner, Ph.D.. Dr. Zellner analyzed terminations in Cornell's radiology department over an eighteen-month period after Dr. Sostman became chief of radiology. Dr. Zellner prepared her report both for this litigation and for litigation involving a second doctor terminated during the reorganization of the radiology department. In this second litigation, this Court determined that because Dr. Zellner's report relied on a test that controls for only two variables (age and termination rate), any correlation indicated in the report "is irrelevant to the question of causation or motive." Maniatas v. New York Hospital-Cornell Medical Center, 58 F. Supp.2d 221, 226-27 (S.D.N.Y. 1999) (citing Raskin, 125 F.3d at 67-68). Therefore, the court concluded that the report "has no probative value for [a] disparate treatment claim." Id. I find the Maniatas ruling to be well-reasoned and sound. Accordingly, because the Zellner report is not probative of discriminatory intent, and because plaintiff has no other evidence of discriminatory intent, plaintiff's claim for disparate treatment fails.
further note that while the Zellner report did conclude that there was a statistically significant correlation between doctors terminated and doctors aged 40 to 49 (the age group to which the Maniatas plaintiff belonged), one of the two statistical methods used by Zellner, logistic regression analysis, found that there was no statistically significant correlation between termination and age for faculty aged 60 to 69 — like Dr. Hayt — or, for that matter, for faculty aged 50 to 59. That is, plaintiff's own expert report undermines the inference plaintiff seeks to support with it.
III.
In his Memorandum of Law in Opposition to Cornell's motion for summary judgment, Dr. Hayt, for the first time, raises a disparate impact claim. A disparate impact violation occurs pursuant to the ADEA when the actions or policy of a defendant have a disproportionate adverse effect on members of the protected class — in this case, workers over 40 — even in the absence of discriminatory intent. A plaintiff must establish the existence of a non-job-related but facially neutral employment practice that disproportionately causes adverse effects for a protected class at a statistically significant level. See 29 U.S.C. § 623, 626; Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989).Even assuming that the Zellner report would be admissible over defendants objections to its data and methodology, evidence of statistical disparities is not the only element necessary to make out a claim. Plaintiff must identify a specific, facially neutral practice that results in the disparity. See Wards Cove, 490 U.S. at 657-58. Dr. Hayt has not only failed to introduce any evidence of a facially neutral employment practice of defendant, he has failed even to identify or allege such a practice. Thus he has failed to establish that element of his claim.
In addition to identifying a specific practice that results in the discriminatory impact, a plaintiff in a disparate impact action must demonstrate that there is a causal link between the challenged practice an the disproportionate outcome. See Wards Cove, 490 U.S. at 656. Again, Dr. Hayt has failed to allege any policy that resulted in the statistical imbalance to which the Zellner Report purports to attest, and has therefore failed to demonstrate a causal link between any of Cornell's policies and this imbalance. Therefore, even assuming the Zellner report offers admissible evidence demonstrating that a disproportionate number of workers in the protected class have been let go by Cornell, plaintiff has failed to make out the other necessary elements of the claim. Accord Maniatas, 58 F. Supp. 2d at 228. Accordingly, Hayt has failed to raise a triable issue of material fact regarding his claim of disparate impact sufficient to defeat summary judgment.
CONCLUSION
Because there is no disputed issue of fact in the record as to whether plaintiff was terminated because of his age, defendant's motion for summary judgment in its favor is GRANTED. The Clerk is directed to enter Judgment dismissing the complaint and closing the case.
SO ORDERED:
Barbara S. Jones UNITED STATES DISTRICT JUDGE
New York, New York May 22, 2000