Melman v. Montefiore Med. Ctr.

• Decision Date: 29 May 2012
• Citation: 946 N.Y.S.2d 27,98 A.D.3d 107,2012 N.Y. Slip Op. 04111
• Parties: Arnold MELMAN, M.D., Plaintiff–Appellant, v. MONTEFIORE MEDICAL CENTER, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 107

946 N.Y.S.2d 27

2012 N.Y. Slip Op. 04111

Arnold MELMAN, M.D., Plaintiff–Appellant,

v.MONTEFIORE MEDICAL CENTER, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

May 29, 2012.

Schwartz & Perry LLP, New York (Murray Schwartz, Davida S. Perry and Brian Heller of counsel), for appellant.

Littler Mendelson, P.C., New York (Jean L. Schmidt of counsel), for respondent.

DAVID FRIEDMAN, J.P., ROLANDO T. ACOSTA, LELAND G. DeGRASSE, ROSALYN H. RICHTER, JJ.

FRIEDMAN, J.P.

Plaintiff Arnold Melman, M.D., was hired as chairman of defendant Montefiore Medical Center's urology department in [98 A.D.3d 112]1988, when he was 47 years old. In 2007, when he was 66, he commenced this action against Montefiore, asserting causes of action for age discrimination and retaliation in violation of the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107[1][a], § 8–107[7] ).¹ Although plaintiff remains in his position as chairman of the urology department, he alleges that Montefiore has discriminated against him on the basis of his age, and has retaliated against him for protesting this discrimination, by compensating him at a rate unreasonably low for a physician of his professional attainments, limiting his control over his department, and otherwise treating him with perceived disrespect. He now appeals from Supreme Court's order granting Montefiore's post-discovery motion for summary judgment. For the reasons discussed below, we affirm.

In his opening brief, plaintiff states that his claims “should be analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” The McDonnell Douglas framework has been adopted for use in discrimination actions brought under the respective Human Rights Laws of the State and City of New York ( see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004], citing Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629–630, 665 N.Y.S.2d 25, 687 N.E.2d 1308, 687 N.E.2d 1308 [1997] ). The New York City Human Rights Law (N.Y.CHRL) was amended by the Local Civil Rights Restoration Act of 2005 (Local Law No. 85 [2005] of City of NY) (LCRRA) to clarify, among other things, that it should be construed, regardless of the construction given to comparable federal and state statutes, “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” ( Albunio v. City of New York, 16 N.Y.3d 472, 477–478, 922 N.Y.S.2d 244, 947 N.E.2d 135 [2011] ). However, neither the LCRRA nor the City Council report thereon (2005 N.Y. City Legis. Ann., at 536–539) sets forth a new framework for consideration of the sufficiency of proof of claims under the NYCHRL or indicates that the McDonnell Douglas framework is to be discarded.

In a recent decision that affirmed summary judgment dismissing a complaint, this Court held that an action brought under the NYCHRL must, on a motion for summary judgment, be analyzed both under the McDonnell Douglas framework and the somewhat different “mixed-motive” framework recognized in certain federal cases ( see Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 41, 936 N.Y.S.2d 112 [2011] [summary judgment dismissing a claim under the NYCHRL should be granted only if “no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof”] ). Under Bennett, it is proper to grant summary judgment dismissing a claim under the NYCHRL only if the defendant demonstrates that it is entitled to summary judgment under both of these frameworks. Although plaintiff himself has not suggested that we analyze this case under a mixed-motive framework, in adherence to the holding of Bennett and to the aforementioned intent of the LCRRA that the NYCHRL be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” ( Albunio, 16 N.Y.3d at 477–478, 922 N.Y.S.2d 244, 947 N.E.2d 135), we will subject this action both to a McDonnell Douglas analysis and to a mixed-motive analysis. As described below, we believe that Montefiore—like the defendant in Bennett—is entitled to summary judgment under either analytic framework.

We turn first to an analysis of plaintiff's discrimination claim under the McDonnell Douglas framework, as the parties have presented the case to us. Under the McDonnell Douglas framework as applied in New York, a plaintiff alleging employment discrimination in violation of the NYCHRL “has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatoryreasons to support its employment decision. In order to nevertheless succeed on [his] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” ( Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] [footnote, citations, and internal quotation marks omitted] ).

“Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff[ ]” (Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 6 N.Y.3d 265, 271, 811 N.Y.S.2d 633, 844 N.E.2d 1155 [2006] ).

In his brief, plaintiff summarizes his complaint against Montefiore as follows: “Melman was paid far less than his position and accomplishments warranted, while younger physicians were treated more favorably.” In this regard, plaintiff (whose total compensation for 2008 was close to half a million dollars) complains that Montefiore denied his requests for raises, gave him inadequate raises, and awarded him insufficient bonuses. Plaintiff points out that Dr. Spencer Foreman, Montefiore's former president and CEO, admitted at his deposition that he told plaintiff in 2006 that “his compensation at Montefiore was below the level of others in comparable positions elsewhere.” In support of the contention that “younger physicians were treated more favorably,” plaintiff identifies one of his subordinates in the urology department (referred to hereinafter as RG), a physician 25 years younger than himself, who (at the very end of the period documented in the record) received total annual compensation exceeding plaintiff's.² Plaintiff testified that, on one occasion, Montefiore acceded to RG's demand for an increase in compensation around the same time that the hospital denied plaintiff's request for a raise. Plaintiff further contends that a pattern of discrimination against older physicians can be discerned from a number of instances in which Montefiore “forced out” older departmental chairmen and replaced them with significantly younger physicians. Bearing in mind that, as previously noted, the LCRRA directs us to construe the NYCHRL “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” ( Albunio, 16 N.Y.3d at 477–478, 922 N.Y.S.2d 244, 947 N.E.2d 135;see Administrative Code § 8–130), we assume that these circumstances surrounding the challenged adverse actions “giv[e] rise to an inference of discrimination” ( Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998) so as to enable plaintiff to carry his “de minimis burden of showing a prima facie case of age discrimination” ( Exxon Shipping Co. v. New York State Div. of Human Rights, 303 A.D.2d 241, 241, 755 N.Y.S.2d 608 [2003],lv. denied100 N.Y.2d 505, 763 N.Y.S.2d 811, 795 N.E.2d 37 [2003], citing Schwaller v. Squire Sanders & Dempsey, 249 A.D.2d 195, 196, 671 N.Y.S.2d 759 [1998] ).

Assuming, as we do, that plaintiff has established “the minimal prima facie case” ( Broome v. Keener, 236 A.D.2d 498, 499, 654 N.Y.S.2d 618 [1997] ), the burden shifts to Montefiore to come forward with admissible evidence that it had “legitimate, independent, and nondiscriminatory reasons” ( Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998) for taking the actions adverse to plaintiff for which he sues. As the dissent and plaintiff concede, Montefiore has sustained this burden.

Turning first to the issue of RG's compensation, it is undisputed that this physician's demands for increased compensation were granted because he was threatening to leave Montefiore if he were not given a raise. Indeed, plaintiff testified that he personally, out of a desire “to protect my faculty that I had hired,” conveyed RG's salary demand to Foreman, warning that RG was “going to leave if we don't give him more money.” ³ The record shows that there was reason to believe that RG was not making an idle threat. Susan Green–Lorenzen, who was Montefiore's clinical vice president with operational responsibility for the urology department during the relevant period, states in her affidavit that RG is “the only surgeon in our employ who possesses the unique skill set to perform robotic prostate surgery and train future surgeons on robotic urology surgery.” ⁴ Green–Lorenzen further notes that, when RG's base salary was increased to $400,000 in 2006, “other robotic surgeons in the local area were compensated at a rate exceeding $500,000.” Montefiore was “well within its rights in considering the marketplace value of [RG's] skills when determining his salary” ( Kent v. Papert Cos., 309 A.D.2d...