Opinion
No. 15148/13.
03-31-2016
Dr. Rong–Da ZHU, Plaintiff(s), v. NEW YORK COLLEGE OF HEALTH PROFESSIONS, Defendant(s).
Neil Frank, Esq., Frank & Associates, PC, Farmingdale, attorneys for plaintiff. Hoey King Epstein Prezioso & Marquez, New York, attorneys for defendant.
Neil Frank, Esq., Frank & Associates, PC, Farmingdale, attorneys for plaintiff.
Hoey King Epstein Prezioso & Marquez, New York, attorneys for defendant.
JEFFREY S. BROWN, J.
The following papers were read on this motion:
| Papers | Numbered |
|---|---|
| Notice of Motion, Affidavits (Affirmations), Exhibits Annexed | 1 |
| Answering Affidavit and Memorandum of Law | 2, 3 |
| Reply and Memorandum of Law | 4, 5 |
This motion by the defendant New York College of Health Professions (the college) for an order pursuant to CPLR 3212 granting it summary judgment dismissing the complaint against it is determined as provided herein.
In this action pursuant to the Humans Rights Law, the plaintiff seeks to recover for employment discrimination. He alleges that the Graduate School of Oriental Medicine (GSOM) of the New York College of Health Professions discriminated against him on the basis of his age with respect to compensation, promotion and other terms of employment and that he was ultimately terminated in favor of a younger employee. The College maintains that it fired the plaintiff because he continued to disobey clear directives from both his supervisor and the college's president that he not mislead his patients and/or students regarding his credentials, more specifically, that he was a doctor. The college seeks summary judgment dismissing the complaint against it.
The facts pertinent to the determination of this motion are as follows:
The college is a not-for-profit educational institution which offers accredited degree programs in massage therapy, acupuncture and oriental medicine. It is overseen by New York State and the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM). The college received accreditation from the ACAOM on February 4, 2007. The college's faculty handbook, which the plaintiff received a copy of on February 19, 2003 and September 27, 2006, provides that employment is “at will,” and, therefore, the college or an employee could terminate their relationship at any time, for any reason, with or without notice. Nevertheless, it also provides that it strictly prohibits discrimination and harassment in the workplace and that it provides equal opportunities for all of its employees. It specifically prohibits discrimination on account of age or any other legally protected status, and that prohibition applies to all terms and conditions of employment including recruitment, selection, training, promotion, transfers, demotions, terminations, compensation and benefits. Employees who believe that they have been discriminated against are encouraged to report the offensive conduct to their supervisor and/or Human Resources. Upon receipt of a complaint, the college investigates the matter confidentially. The college requires faculty members to have a degree from a college or university that is accredited in the United States or to have a degree from an institution that is recognized by the U.S. Department of Education.
The plaintiff began teaching at the college in the GSOM on a full-time basis on or about January 8, 1996 at the age of 54. He was paid approximately $64,000 annually. The handbook provides that as a full-time faculty member, the plaintiff was expected to provide administrative support to the Dean of the GSOM, to coordinate all course work relative to the courses he taught, to supervise student clinics and to provide treatment in the health center. He also oversaw students in the academic teaching clinic and treated patients directly in the professional clinic.
On April 29, 2002, the college's president, King Cheek, then 65 years old, appointed Dennis Moseman, who was 45 years old, as Dean of GSOM. On January 8, 2003, Cheek appointed the plaintiff, who was then 60 years old, to act as Dean of the GSOM. On November 21, 2003, Cheek and his successor president, the defendant Pamintuan, jointly decided to appoint Dr. Song, who was then 47 years old, as Dean of the GSOM. On January 28, 2004, Pamintuan decided to create two Dean positions at the GSOM: Dr. Stephen Jackowitz, who was 35 years old, was appointed Academic Dean, and Dr. Song, who was 48 years old, was appointed Administrative Dean. Shortly thereafter, Pamintuan decided to consolidate the two Dean positions, again, and so Dr. Song became the Dean of the GSOM and Jackowitz remained on the faculty. On April 20, 2005, at the age of 36 Jackowitz was appointed to serve as Co–Dean with Dr.Song. On May 11, 2005, Pamintuan appointed Jackowitz to serve as Dean of the GSOM at the age of 36. On August 18, 2005, Pamintuan appointed the plaintiff, at the age of 63 to replace Jackowitz and to serve as Co–Dean concurrent with Dr. Song, but then, on September 19, 2007, Pamintuan appointed Dr.Song who was 51 years old to serve as the sole Dean of the GSOM.
When the plaintiff was first solicited to act as Dean of the GSOM by Cheek in 2003, he expressed a desire for an increase in salary based upon the additional duties he anticipated. He initially rejected the college's offer of a salary of $100,000, and they ultimately agreed upon a salary of $120,000. While he served as Dean of the GSOM, the plaintiff answered directly to the college president and was expected to provide leadership in all aspects of the college's operation that affected it. As Dean of the GSOM, the plaintiff was responsible for advising and disciplining the students, reviewing and approving admission applications, developing class schedules each trimester, supervising and appointing faculty, developing programs, chairing weekly faculty departmental meetings and to assess student achievement on an ongoing basis. In addition, he continued to act as the clinic supervisor and conducted grand round patients, teach class and treat patients in the college's professional clinic. There was essentially no change in his teaching schedule as Dean but he assumed more responsibility supervising in the clinic, acting as the “supervisor of the Supervisor” and assisted the college in obtaining accreditation, which was of the utmost importance.
At his examination-before-trial, the plaintiff testified that during his first term as Dean, he believed that the ACAOM had three concerns regarding the GSOM's accreditation, namely, student complaints, the quality of teaching and that the rules be followed in the clinic. He testified that he met with the ACAOM two or three times at President Dr. Cheek's request; that he checked the clinic's charts to ensure that the operations there met ACAOM's standards; and, that he evaluated teachers in the classroom and recommended ways in which they could improve. He testified that the teachers did in fact implement his recommendations.
Pamintuan testified at her examination-before-trial that the plaintiff was removed as Dean on November 23, 2003 due to concerns that he was not well versed in ACAOM's accreditation standards. In fact, she testified that he told her so and said that he just wanted to teach and to work in the professional clinic. Therefore, when he was removed as Dean, he remained a full time member of the faculty. He no longer bore the administrative responsibilities of Dean and continued to teach, act as the supervisor of the clinic and to treat patients in the professional clinic. Notably, his compensation remained the same. Pamintuan testified at her examination-before-trial that the plaintiff was replaced by Dr. Song because of her experience as an administrator, her familiarity with ACAOM's standards and because she was a strong practitioner.
In 2005, Dr. Song recommended that the plaintiff be appointed Co–Dean to replace Janowitz, and Pamintuan approved. The plaintiff primarily focused on areas relevant to accreditation including observing classes to aid faculty in improving their teaching skills and improving the quality of the clinic. Dr. Song performed the majority of the Dean's jobs including student admissions, open houses, etc.
In 2006, the college was engaging in self-analysis in order to obtain NYS accreditation. Part of the criteria was faculty credentials. In fact, the ACAOM's accreditation manual advises that each program should verify the appropriate credentials of its faculty members and maintain them in their employee's file. According to the New York State Education Department's Office of the Professions' guidelines pertaining to acupuncturists, “[u]se of the title doctor' when offering to perform medical services must reflect the profession in which the licensee holds a doctorate degree.” Therefore, in 2006, the plaintiff was informed that he could not be referred to as a “doctor” since he had not provided the college with the requisite credentials. In response, the plaintiff provided documentation which established that he has a PhD from American Global University. That school, however, was not an accredited institution in the United States nor was it a school which was recognized by the U.S. Department of Education. The college accordingly determined that the plaintiff lacked the credentials required to be referred to as a doctor. Pamintuan testified at her examination-before-trial that she told the plaintiff in 2006 or 2007 not to refer to himself as such and to correct others if they did. Dr. Song testified similarly at her examination-before-trial. She specifically testified that she told the plaintiff repeatedly that he was to be referred to as “Mr.,” not “Doctor.” The plaintiff however denies being told this until July 17, 2012, shortly before he was fired (see infra).
The GSOM obtained accreditation from the ACAOM on February 4, 2007.The plaintiff testified at his examination-before-trial that he believed that it was his efforts that led to GSOM's accreditation since the ACAOM's concerns had been limited to the review of clinic charts and the quality of teaching. He testified that if the ACAOM had any other concerns, he was unaware of them.
The plaintiff was replaced as dean by Dr. Song on September 19, 2007. Pamintuan testified at her examination-before-trial that the plaintiff was replaced because of the plaintiff's disproportionately high salary in comparison to others' salaries. She testified that his salary was still the highest and that it was disproportionate to the other faculty members' and deans' salaries. The plaintiff testified at his examination-before-trial that Pamintuan told him that he was being removed as dean again because he “didn't do much paperwork.” He also testified that he did not view that as his responsibility as dean since there were secretaries. While he could not recall whether Pamintuan referred to his age when she removed him as dean the second time, he testified that that was his impression and that that he was removed because he was “too old” or, because his salary was too high. The plaintiff testified at his examination-before-trial that he believed that the college used him to obtain accreditation because he had the best relationship with the students and because of his knowledge and experience, and only after it received its accreditation did it remove him as dean.
Following his removal, the plaintiff was given the title of dean emeritus and he remained a full time faculty member as senior academic advisor and essentially continued to perform the tasks he performed before his removal. Dr. Song recommended that the plaintiff's salary be reduced after reviewing his teaching, clinical performance and willingness to teach. His salary was decreased per a decision by a committee. Dr. Song testified at her examination-before-trial that the plaintiff negotiated for the reduced salary to enable him to spend more time in the professional clinic because he thought that he could make more money there. The plaintiff acknowledged at his examination-before-trial that he did work less hours after being removed as dean for the second time.
The plaintiff testified at his examination-before-trial that a few months after his removal as dean in 2007, he had a meeting with Pamituan and the dean of the Massage Therapy Department at which they discussed that he was not teaching the 9:00 p.m.–11:00 p.m. class that had been scheduled or teaching any classes in Manhattan. The plaintiff acknowledged that his age was not mentioned, however, he testified that it was his impression that Pamintuan did not like him because of his age since she had asked him to teach the late night class. His salary was reduced to $95,000 at that meeting going forward. The plaintiff testified that he didn't expect his salary to be reduced when he was removed as dean the second time since it wasn't reduced the first time he was removed as dean.
On August 11, 2011, an incident report was issued to the plaintiff based on his refusal to teach in Manhattan. In response to that report, the plaintiff is reported to have said, “I'm too old. I cannot go to the City to teach.” At his examination-before-trial, the plaintiff testified that he did not like driving to New York City and that he was not comfortable doing so. He also testified that the college should have been concerned about him teaching in the City because of his age.
On March 1, 2012, another incident report was issued to the plaintiff when he refused Dr. Song's request that he teach another class. The plaintiff is reported to have responded, “I'm too old. I have no energy to prepare any other class than what class[es] I teach now....” Dr. Song testified at her examination-before-trial that the plaintiff said he was an “aged person” and required “special treatment.” The plaintiff testified that he did not want to teach the night class because it was too many hours in a day. Yet another incident report was issued to the plaintiff on September 14, 2011, for ending his class before its scheduled time.
Dr. Song issued an incident report on July 17, 2012 instructing the plaintiff not to allow the students or patients to call him Dr. Zhu. Facebook pages however indicate that the plaintiff continued to allow his students to do so without correcting them. The plaintiff's position was that he could not stop people including patients and students from referring to him as a doctor, especially since that is how he is referred to in China. Dr. Song testified at her examination-before-trial that despite the repeated warnings, she recalled observing students and patients refer to the plaintiff as a doctor more than once without correction by the plaintiff. The college has produced documents establishing that the plaintiff allowed the students and patients to refer to him as doctor without comment.
Dr. Song recommended to Pamintuan and the Department of Human Resources that the plaintiff be terminated based upon a number of facts: The aforementioned write-ups, student complaints including complaints that he was sleeping in the clinic; refusing to teach in the specialist clinic because he preferred to work in the professional clinic to earn more money; failing to input students' grades into the computer; and his continuing to allow himself to be referred to as a doctor. In fact, at her examination-before-trial, Dr. Song recalled yet another incident of the plaintiff allowing himself to be referred to as “doctor” in a clinical setting around the time that she made the recommendation.
Upon reflection, Pamintuam concluded that the plaintiff's conduct in allowing himself to be called doctor without correction not only violated the college's disciplinary procedures, but was misleading and unethical. In fact, Pamintuan testified at her examination-before-trial that she recalled observing the plaintiff introducing himself as “Dr. Zhu” in the college's waiting room and that she in fact witnessed him refer to himself like that on at least five occasions as well as instances where patients would ask for “Dr. Zhu” and he would not correct them. Pamintuan recalled relaying this information to Dr. Song reporting that the plaintiff said he could not help it. Dr. Song testified at her examination-before-trial that the plaintiff never produced a copy of his graduation certificate from China to validate that he is in fact considered to be an “in charge” doctor there.
Based on Dr. Song's recommendations as well as her own recollections and conclusions, Pamintuam terminated the plaintiff's employment on August 12, 2007 because he continued to allow himself to be referred to as a “doctor” without correction, despite repeated admonitions not to do so. The classes that the plaintiff was scheduled to teach in the fall of 2012 were given to a variety of people ranging in age from 37 to 49, 54 and 63. The plaintiff testified at his examination-before-trial that he believed he was told at the termination meeting that he was being let go as a full time teacher because the college had too many full time employees and he agreed. He testified that he also believed that Pamintuan told him that the college had hired new, young teachers. Following the meeting, the plaintiff continued to come to the campus to work and had to be told by Song that he no longer worked there.
Following his termination, the plaintiff filed a complaint against the college with the New York State Division of Professional Education because he felt that he had been treated improperly. That complaint did not mention his age. He reported that he was reduced to part-time status at the meeting, but two days later, he discovered that the locks on his office had been changed, Dr. Song informed him that he had been terminated, and he was forced to leave the premises. He stated that he was writing that report because he was concerned about the changes taking place in the school and the imprudent decisions being made by the administration. He felt that it was his duty as a concerned teacher to report his concerns to a higher administration. More specifically, he stated that he had expressed concerns about the hiring of a new academic dean who lacked a valid license to practice acupuncture in the United States, as he believed that it was illegal to have a non-licensed acupuncturist act as dean. He felt that it was on account of that warning that he was terminated by the college. At his examination-before-trial, the plaintiff testified that he also felt that the college terminated him because it thought that he was too old. Nevertheless, the plaintiff admitted at his examination-before-trial that no one ever said anything to him regarding his age but he believed that no one would do that openly anyway.
At her deposition, Dr. Song recited numerous reasons for the plaintiff's termination, most of which have been cited previously, including his alleged refusal to teach certain classes, students' complaints and his use of the title “doctor.” In comparison, Pamintuan testfied at her examination-before-trial that the plaintiff's use of the title “doctor” was “the defining thing” that precipitated his termination.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). A party seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 923 [1993] ). If the movant makes a prima facie showing, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez at 324). “[T]o defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact' “ (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067–1068 [1979], quoting CPLR 3212, subd. [b] ). “On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ).
In support of its motion as well as in reply to the plaintiff's opposition, the defendant has submitted, inter alia, the “Declaration(s)” of its President Lisa Pamintuan and the Dean of the GSOM, A. Li Song pursuant to 28 USC § 1746, which provides in pertinent part:
“Wherever ... any matter is required ... to be supported ... by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported ... by the unsworn declaration ... of such person....”
“When prosecuting an action within a New York State Supreme Court ... compliance with 28 USC § 1746 is insufficient as factual allegations must be contained in a sworn affidavit unless the party qualifies under CPLR 2106 ” (Melamed v. Americare Certified Special Services, Inc., 2014 WL 7149130 [Sup Ct Kings County 2014], citing Discovision Assoc. v. Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [2010] ). Consequently, the Declarations submitted on behalf of the defendant are not “competent evidence in admissible form.” Melamed v. Americare Certified Special Services, Inc., 2014 WL 7149130 at 16–17 ; see also, Discovision Assoc. v. Fuji Photo Film Co., Ltd., supra).
While the court may not consider those Declarations, it will evaluate whether the motion can be decided in the moving party's favor regardless.
Initially the court rejects the request that all claims which accrued more than three years before this action was commenced be dismissed. While the statute of limitations is three years (Murphy v. American Home Products Corp., 58 N.Y.2d 293, 307 [1983] ), at this juncture, it cannot be determined whether there has been a continuous violation. (Dye v. Catholic Med. Ctr. of Brooklyn and Queens, Inc., 273 A.D.2d 193, 194 (2d Dept 2000), citing Brennan v. City of White Plains, 1998 WL 75692 [SDNY 1998] ).
“To support a prima facie case of age discrimination under the Human Rights Law, the plaintiff must demonstrate (1) that she is a member of the class protected by the statute; (2) that she was actively or constructively discharged; (3) that she was qualified to hold the position from which she was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination” (Ehmann v. Good Samaritan Hosp. Med. Ctr., 90 AD3d 985 [2d Dept 2011], citing Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 [1997] ). “A defendant seeking summary judgment dismissing a cause of action alleging age discrimination must demonstrate either that, as a matter of law, the plaintiff cannot establish the elements of intentional discrimination, or that the plaintiff cannot raise a triable issue of fact as to whether the facially legitimate, nondiscriminatory reasons proffered by the [defendant for its] challenged actions were pretextual' “ (Ehmann, at 985–86, quoting Considine v. Southampton Hosp., 83 AD3d 883 [internal quotation marks and citations omitted], citing Sayegh v. Fiore, 88 AD3d 981 [2011] see also, Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004] ).
In discrimination cases, “[t]he Court does not sit as a super-personnel department to reexamine an entity's decisions on the usefulness to the enterprise of an at-will employee' “ (Chuang v. T.W. Wang Inc., 647 F Supp2d 221, 238 [EDNY 2009], quoting Danzer v. Norden Sys., Inc., 151 F3d 50 [2d Cir1998] [internal citations omitted] ). “The role of the Court is only to consider whether such decisions were made with discriminatory intent” (Chuang at 238). “[I]t matters not whether the [employer's] stated reason for terminating plaintiff was a good reason, a bad reason, or a petty one. What matters is that the [employer's] stated reason for terminating plaintiff was nondiscriminatory” (Forrest at 330, n5).
Without reference to the inadmissible Declarations, the college has established a non-discriminatory reason for the plaintiff's termination. First and foremost, he allowed himself to be referred to and even represented himself to be a doctor despite being warned at least once in writing not to do so. That insubordination and unethical conduct sufficed to warrant the college's termination of him and constitutes a legitimate, nondiscriminatory reason for the termination.
The college has also established that the plaintiff cannot raise a triable issue of fact as to whether the facially legitimate, nondiscriminatory reasons proffered by the defendant for its challenged actions were pretextual. There is no evidence which suggests that an inference of age discrimination can be drawn from the facts here. The plaintiff was hired when he was a member of his protected class, and four of the five people who took over his teaching responsibilities fall within his protected class of individuals. (Jessamy v. City of New Rochelle, New York, 292 FSupp 2d 498, 516 [SDNY 2003], quoting Meiri v. Dacon, 759 F.2d 989, 996 [2d Cir], cert. denied 474 U.S. 829 [1985] (“the fact that a plaintiff was either not replaced by someone outside of his or her protected class, or not even replaced at all, may weaken, but certainly does not eliminate, the inference of discrimination' ”). His supervisors, Song and Pamintuan, who decided to terminate him, were in the protected class, too, which “weakens any inference that the decision to fire plaintiff was based on his age (citations omitted)” (Mathews v. Huntington, 499 FSupp 2d 258, 267 [ED N.Y.2007] ; see also, Connell v. Consol. Edison Co. of New York, Inc., 109 FSupp 2d 202, 209 [SD N.Y.2000] ). And the same individuals who elected to promote him at times ultimately decided to fire him (“where the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [that person] an invidious motivation that would be inconsistent with the decision to hire' “ (Zuffante v. Elderplan, Inc., 2004 WL 744858, at 6 [SDNY 2004], quoting Grady v. Affiliated Cent., Inc., 130 F3d 553, 560 [2d Cir.1997], cert. denied 525 U.S. 936 [1998] ; see also, Connell at 209).
The only plausible grounds for finding an issue of fact with respect to pretext are nothing more than the plaintiff's self-serving, subjective perceptions and feelings about the circumstances surrounding his discharge, which hardly suffice to create an issue of fact. (Bickerstaff v. Vassar Coll., 196 F3d 435, 456 [2d Cir1999], cert. denied 530 U.S. 1242 [2000], rearg. denied 530 U.S. 1289 [2000] (“feelings and perceptions] of being discriminated against [are] not evidence‘of discrimination”, quoting Fisher v. Vassar Coll., 70 F3d 1420, 1439 [2d Cir1995] on reh in banc, 114 F3d 1332 [2d Cir1997], cert. denied 522 U.S. 1075 [1998], reh denied 523 U.S. 1041 [1998] (Plaintiff's “sense of being discriminated against’ is not evidence”). In fact, the evidence demonstrates that the plaintiff was appointed in 2005 at the age of 63 to replace a 36–year–old Dean; Song, who ultimately recommended the plaintiff's termination, recommended that he be made Co–Dean in 2005; and, Pamintuan hired a person recommended by the plaintiff while he served as a dean.
“In opposition to the defendants' prima facie showing that the plaintiffs' employment was terminated for legitimate, nondiscriminatory reasons, the plaintiffs, in order to defeat summary judgment on that basis, must raise a triable issue of fact as to whether the reasons proffered by the defendants were merely pretextual (Furfero v. St. John's Univ., 94 AD3d 695, 697 [2d Dept 2012], citing Forrest v. Jewish Guild for the Blind, 3 NY3d at 307 ). That is, he “must show that there is a material issue of fact as to whether (1) the employer's asserted reason for [the challenged action] is false or unworthy of belief and (2) more likely than not the employee's age was the real reason [for the termination]' “ (Dzikowski v. J.J. Burns & Co., LLC, 98 AD3d 468, 469 [2d Dept 2012], quoting Ferrante at 629).
In opposition to the defendant's motion, the plaintiff has submitted, inter alia, his own affidavit. He attests that he began working for the college in 1996 and worked there until he was terminated on August 14, 2012 at the age of 70. He attests that to the best of his knowledge, he was the oldest or one of the oldest members of the faculty when he was terminated. And, he testified at his examination-before-trial that he was told when he was fired that it was necessary because the college could not afford so much full-time faculty and that it was hiring new young teachers. He denies being told that his termination was on account of his use of the title “doctor” with the students and patients, nor was his refusal to teach certain classes mentioned. The plaintiff maintains that only in response to his attorney's demand letter of September 14, 2012 did the college first bring up the issue of his use of the title “doctor.” He also notes that no where in the handbook is the use of that title addressed nor has the college produced any other evidence of such a written policy.
He attests that he was appointed Dean of the GSOM in January 2003, removed from that position in November 2003 and reinstated as Dean in 2005 until 2007, at which time he was again removed and his salary was reduced from $120,000 to $60,000. He attests that he was given the opportunity to treat patients privately at the clinic to supplement his salary, that he was required to arrive at the campus by 9:00 a.m. and remained on campus until at least 7:00 p.m. Monday through Thursday, and that he worked most Saturdays, too.
The plaintiff attests that he remembers hearing that the college needed a person to teach a class in Manhattan in 2011 but he was never formally asked to do so. His recollection is that Dr. Song made a general appeal for a volunteer. He acknowledges that he told Dr. Song that it would be a hardship for him to teach in Manhattan because he found travel difficult and had a full plate of responsibilities at the Long Island campus. He was teaching four classes, supervising the clinic and treating patients both privately and through the school's “grand round” program. He attests, though, that he represented that he would do so, if necessary, but that he was never asked to teach in Manhattan and he never refused to do so.
The plaintiff also attests that he recalls Dr. Song asking him to teach a night class in March 2012 which ended at 11:00 p.m., to which he responded that he was concerned that it would not be safe for him to drive home that late after being on campus since 9:00 a.m. each day. He denies refusing to teach additional classes in general and attests that he only stated that he was unable to teach the last class of the day. It is his recollection that most evening classes were taught by part-time faculty who did not have to be on campus in the morning. He attests that at no time did he refuse to teach a class because he wanted to spend his time treating patients at the clinic to enhance his income.
As for ending class early, the plaintiff testified at his examination-before-trial that he had informed Dr. Song that he had to end early that evening and that his classes often went later than scheduled. He attests that he always made sure the classroom instruction hour requirements were met.
While the plaintiff denies referring to himself as “Dr.Zhu,” he does not deny that the students and patients did so, without being corrected. However, he attests that he was never told that he may not refer to himself or allow himself to be called doctor or was reprimanded for doing so until only one month before his termination. And, he points out documents generated by the college itself through the years repeatedly referred to him as “Dr.” He testified at his examination-before-trial that staff members including Dr. Song habitually referred to him as “Dr. Zhu.” In fact, he testified that Dr. Song called him “Dr. Zhu” when he fired him and when he helped him load his car with his office materials.
As direct evidence of age discrimination, the plaintiff cites his testimony that he was told by Pamintuan at his termination that the college was hiring “new and young” faculty members. However, that assertion is refuted by the record: The college did not do so; many of the new hires fell within the plaintiff's protected class; but they were, however, all younger that the plaintiff. And, the plaintiff points out that the fact that Dr. Song had appointed him dean in 2005 as indicative of non-discriminatory firing is less compelling in view of the fact that that occurred several years before he was terminated. (Carlton v. Mystic Transp., Inc., 202 F3d 129 [2d Cir2000], cert. denied 530 U.S. 1261 [2000] ; Kadas v. MCI Systemhouse Corp., 255 F3d 359 [7th Cir2001] ). As evidence of pretext, the plaintiff points out that he testified that he was told that he was being terminated because full time salaries were too burdensome on the college and new and young faculty was needed, but when called upon by his lawyer to explain his termination, the “doctor” title was relied on. In addition, the plaintiff relies on the alleged inconsistencies between Dr. Song and Pamintuan's testimony at their examinations-before-trial regarding the reason for his termination which he maintains is also indicative of the possibility of a pretext.
Again, reliance on the college's hiring younger teachers finds little support because many of the replacement teachers were also in the protected class. And while “[i]nconsistent reasons for an adverse employment action offered by an employer at different times can create a fact issue as to pretext” (Clarke–Smith v. Bus. Partners in Healthcare, LLC, 2016 WL 279094, at 4 [ND Tex 2016], citing Gee v. Principi, 289 F3d 342, 347–48 [5th Cir2002] ) ... “proof that an employer's reasons for terminating an employee become more detailed when litigation commences is insufficient to create a jury question regarding pretext absent an actual inconsistency” (Clarke–Smith v. Bus. Partners in Healthcare, LLC at 4, citing Minnis v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 2015 WL 3941846, at 5 [5th Cir.2015] ). “Explanations that differ only in their level of generality are not sufficiently inconsistent to create a fact issue” (Id.; Hamilton v. AVPM Corp., 593 F. App'x 314, 322 [5th Cir.2014] [per curiam] ). At this juncture, it cannot be determined whether the plaintiff has established that the inconsistent explanations for his termination may also provide evidence of pretext.
More importantly, in addition to steadfastly denying that he has referred to himself as “doctor,” the plaintiff notes that this problem was allegedly discovered in 2006 or 2007. The college had been in possession of the plaintiff's resume since at least 2003 and did not find any problems with it until 2006 or 2007. There has never been any representation that ACAOM had any problems with it. Assuming, arguendo, that the college determined in 2006 or 2007 that the plaintiff's use of the title “doctor” was wrong, clearly, nothing was formally done about it until 2012, three weeks before the plaintiff was fired. And, despite teaching at the school for nearly twenty years and serving as dean twice, only in 2011 did the plaintiff begin getting written up, thereby giving rise to an issue whether a paper trail was being created. (Wright v. AutoZone Stores, Inc., 951 FSupp 2d 973 [WD Mich.2013] ; Buffington v. PEC Mgt. II, LLP, 2013 WL 1290232, at 9 [WD Pa 2013] ). Furthermore, conspicuously absent here are the plaintiff's evaluations over the years at the college. The plaintiff has established the existence of material issue of fact as to whether the reason proferred by the defendant for his termination was pretextual.
In conclusion, again, the declarations have not been considered. Had this court found any materials in them that might have changed its determination, the defendant's motion would have been denied without prejudice to renewal upon proper papers. This court discerns nothing in those declarations that would change the result here.
The defendant's motion for summary judgment dismissing the complaint against it is denied.
This constitutes the decision and order of this court. All applications not specifically addressed herein are denied.