Alhaj v. N.Y.C. Health & Hosps. Corp.

• Decision Date: 10 October 2022
• Docket Number: Index No. 501052/2016
• Citation: 177 N.Y.S.3d 433
• Parties: Eyad ALHAJ, Plaintiffs, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Physician Affiliate Group of New York, Kenneth Hupart, M.D., Lana Vardanian, M.D., Eric Chaikin, and Sabina Zak, Defendants
• Court: New York Supreme Court

177 N.Y.S.3d 433

Eyad ALHAJ, Plaintiffs,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Physician Affiliate Group of New York, Kenneth Hupart, M.D., Lana Vardanian, M.D., Eric Chaikin, and Sabina Zak, Defendants

Index No. 501052/2016

Supreme Court, Kings County, New York.

Decided on October 10, 2022

Attorneys for Plaintiff, Joseph J. Ranni, Esq., RANNI LAW FIRM, 148 North Main Street, Florida, NY 10921

Attorneys for Defendants, Sylvia Hinds-Radix, Office of the Corporation Counsel, 100 Church Street, New York, NY 10007

Katherine A. Levine, J.

Plaintiff Eyad Alhaj ("plaintiff"), a cardiologist employed by defendant New York City Health and Hospitals Corporation ("HHC"), Physician Affiliate Group of New York ("PAGNY"), claims that Kenneth Hupart, M.D., Lana Vardanian, M.D., Eric Chaikin, and Sabina Zak (collectively "defendants"), violated the New York State Human Rights Law ("SHRL") and New York City Human Rights Law ("CHRL") by subjecting him to a hostile work environment and subsequently retaliating against him because he wrote an email, based upon his race, national origin, and religion.

Plaintiff also claims, within his Count on Hostile Environment, that he was terminated "for absolutely no reason," and that he was terminated on September 11 "as retribution for the horror that unfolded that day." He asserts that during the termination meeting, Chaikin commented to Dr. Hupert "Today is 9/11, right?," wherein Dr. Hupart shook his head and said ‘Yes, it is," and Chaikin then made a weird smile. Defendants moved for summary judgment dismissing the claim pursuant to CPLR § 3212.

As will be set forth below, the Court grants in part and denies in part defendants’ motion for summary judgment. Simply put, there is absolutely no evidence that any defendant who hired or arranged for plaintiff's working schedule, assignments and conditions created a hostile work environment for plaintiff out of some discriminatory bias under the SHRL or CHRL. Nor is there any evidence that any of the defendants treated Alhaj in a disparate fashion. Defendants had the right to terminate plaintiff, who was a probationary employee, for any reason so long as it was not in violation of a statute or constitution.

However, the Court believes that a jury could find that Chaikin's alleged comment about 9/11, and his "weird" or "strange" smile¹ to Hupart while making that statement at plaintiff's termination hearing on 9/11, evinced a discriminatory intent. Furthermore, Chaikin was much more intimately involved in the CHF program than disclosed by defendants, thus creating an issue of fact as to whether he was a supervisor or manager and played a role in plaintiff's termination. As such, the court will permit these issues concerning Chaikin's actions and whether they could be imputed to the hospital to go to trial.

FACTS

Plaintiff was hired by PAGNY to work as a cardiologist at Coney Island Hospital ("CIH") on September 14, 2014, and was an at will employee subject to a one-year probationary period ending on September 14, 2015. On or about January 16, 2015, plaintiff had a fractious interaction with Dr. Brady, the Chief Medical Officer at CIH and one of his supervisors, over his being one half hour late to a scheduled meeting. Plaintiff made a written complaint to his immediate supervisor, Dr. Khanna, claiming that Brady repeatedly used derogatory and profane language at him in front of co-workers; i.e. to "move his ass" after he was one half hours late to a meeting which Brady had requested. Nowhere did Alhaj assert in this complaint that Brady's comments to him had anything to do with his race, national origin or religion. Plaintiff claims that he was late because he was treating other patients at the time.

In contrast, by email to Sabina Zak dated 1/16/15, Dr. Brady memorialized that he had a "disturbing conversation" with Alhaj. Alhaj failed to attend a meeting requested by Brady at 9:45 so that he could make rounds with a cardiology fellow. Brady asserted that Alhaj and another doctor refused to provide coverage because they were "inappropriate, unprofessional and insubordinate."

On or about late July 2015, Dr. Hupart, the Chairperson of Medicine at Coney Island Hospital² who is responsible for the medical care of all patients and the practice of doctors, asked plaintiff to prepare a program to improve outcomes for congestive heart failure

("CHF") patients. Hupart asked plaintiff because he had "specific expertise and training in managing CHF patients." and in fact had completed a fellowship in CHF. Defendants claim that plaintiff did not produce an outline for the program in a timely manner, and that when he did put together a plan, it violated Dr. Hupart's instructions not to use extra resources or new hires, as his plan called for six to eight new hires and new resources. Plaintiff claims that the reason he was assigned to prepare the CHF program was "in hopes that he would fail," although he presented no evidence to support this claim. Dr. Khanna, plaintiff's supervisor, averred that Dr. Alhaj "was not hired to perform this task, but was supposed to function as a general cardiologist."

Sometime between late July and August 2015, plaintiff attended a counseling session where Dr. Hupart discussed plaintiff's alleged continued failure to meet job expectations, including his failure to properly establish a cardiac program. Hupart invited Eric Chaikin, associate executive director for medicine to attend the meeting and serve as a witness. According to plaintiff's 50-H testimony, there was no mention of his termination at this meeting.

Plaintiff claims that he was assigned to the CHF program after the "Dr. Brady incident," and that he was given the "most undesirable work shifts and overtime assignments" and was "requested to take on impossible assignments, tasks that could never be completed successfully or effectively, to the detriment of patient care." However, apart from his assignment to the CHF program, plaintiff offered no specifics. He also complained that defendants "created a hostile work environment where they treated Dr. Alhaj as a lesser person based on his country of origin and background as a Syrian Muslim Arab," although he presented no evidence that while he was working at Coney Island Hospital that any of the defendants possessed any animus towards him based on his nationality or religion or that his assignment to the CHF program was outside of his job responsibilities. Plaintiff admitted that prior to his termination date, no one at Coney Island Hospital - doctors, nurses etc - ever made any negative or derogatory comments concerning his ethnicity or where he obtained his medical degree.

Aside from the Brady incident and plaintiff's failure to properly establish a CHF program, defendants documented a number of other incidents. On June 3, 2015, the Director of Human Resources received a complaint that Alhaj, who was required to attend the New Employee Orientation, signed in each day but then left as soon as he signed in resulting in one Young Lee not giving him credit for having completed any of the three sessions (Exhibit J to Defendants’ motion for summary judgment). On August 7, 2015, Dr. John Maese notified Dr. Khanna by email that Alhaj had failed to fulfill his obligation to handle an admission denial. Alhaj refused to discuss this case with the medical director, claiming that he was too busy.

Sometime around Labor Day in 2015, Dr. Hupart decided to terminate Alhaj and informed Dr. Brady and Dr. Maese, to whom he reported; he also discussed the termination with PAGNY human resources. ON September 11, 2015, Dr. Hupart called plaintiff to a meeting to inform him that his services were no longer needed at CIH; Sabina Zak, Chief Affiliation Officer at PAGNY; Erik Chaikin, and Dr. Vardanian were also present. Plaintiff testified at his EBT that with a "strange smile on his face," Chaikin looked at Dr. Hupart and said, "Today is 9/11, right?, and that Dr. Hupart shook his head and said ‘Yes, it is.’ " Plaintiff further testified that he interpreted the statements to mean that he was terminated on 9/11 to send the message: "Look, you are Middle Eastern, and you are a Muslim. Remember 9/11, and hush."

Plaintiff claims that Chaikin was involved in the decision to terminate him because of his comment about 9/11 during the termination meeting, and his role in administering the cardiology department and the CHF program. Defendants argue that Chaikin's comment was neutral on its face, and there is no evidence that one stray remark was connected to any decisions made by the Hospital through Dr. Hupart concerning plaintiff s employment. They also claim that Chaikin played no role in Alhaj's termination and that he had no authority over Alhaj. Chaikin testified at the 50-h hearing that his duties included "planning any programs in medicine, organizing, budgeting, directing what the executive director of the hospital thought needed to be done, or working with the chairman of medicine and addressing his needs in terms of day-to-day operations of the department."

Defendants, including Chaikin, grossly minimized Chaikin's involvement with the CHF program and Alhaj. While Chaikin claims his first meeting with Alhaj was during a counseling session in August, the record reveals that Chaikin was involved with the CHF program from its inception. By email dated June 29, 2015, Huppart notified Alhaj and Dr. Khanna and cc'd Chaikin that there were disappointing outcomes from CHF data that the hospital reported and that he wanted to meet with both of them regarding "their take" on the hospitals current CHF initiatives and how the hospital could better address CHF for patients. By email dated August 3, 2015 to his supervisor John Masse, Hupart memorialized his meeting with Alhaj, Khanna and Chaikin the week before where in they presented (meaning Khanna and Alhaj) a program was "too large in scope but that they will work with me (Huppart) and Eric (Chaikin)...