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July 28, 1998


Robert L. Carter, U.S.D.J.

The opinion of the court was delivered by: CARTER


ROBERT L. CARTER, District Judge

 This action arises out of defendant hospital's and defendant medical group's failure to hire plaintiff to work as an anesthesiologist, allegedly because of her observance of the Jewish Sabbath. Plaintiff sued under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"). Both defendants now move for summary judgment pursuant to Rule 56, F.R. Civ. P.

 I. Background

 In January of 1996, Dr. Fred Epstein, a pediatric neurosurgeon practicing at New York University Medical Center ("NYU"), and Dr. Alejandro Berenstein, a neuroradiologist also at NYU, entered into an agreement with Beth Israel Medical Center, North Division ("Beth Israel"), to leave NYU in order to found and head the Institute for Neurology and Neurosurgery (the "Institute") at Beth Israel. (Pl.'s Mem. of Law at 2). Drs. Epstein and Berenstein subsequently offered positions at the Institute to two anesthesiologists practicing at NYU, Drs. Murray Canter and Patricia Brous, both of whom accepted. (Id.) Drs. Epstein and Berenstein delegated to Drs. Canter and Brous the job of recruiting two additional NYU anesthesiologists who: 1) were board certified, 2) were experienced in both neuroanesthesia and pediatric anesthesia; 3) were interested in moving to Beth Israel; 4) possessed a good working relationship with all involved; and 5) had compassion for children. (Id. at 3). Drs. Epstein and Berenstein each retained veto power over recommendations made by Drs. Brous or Canter. (Id. at 2.).

 In February 1996, plaintiff Judith Schachner, an anesthesiologist practicing at NYU, having learned of the imminent departure from NYU of Drs. Epstein and Dr. Schachner, approached Dr. Epstein about joining the anesthesia staff at the Institute. (Id. at 3). Plaintiff alleges that Dr. Epstein told her at that time that he was still in the process of negotiating the final deal with Beth Israel and suggested that she check back with him in March. (Id.) Over the next several months, Drs. Brous and Canter approached a number of other doctors to offer them positions at the Institute, including Dr. Paul Thompson, Dr. Kenneth Jacobson, and Dr. Margaret Ekstein. (Id. at 3-5). Each of them declined the offer.

 In late April 1996, Dr. Schachner reiterated her interest in working at Beth Israel to Dr. Epstein. (Id. at 6). She claims that Dr. Epstein said that he was interested in her coming to Beth Israel and told her to contact Dr. Canter and Dr. Sundar Koppolu, the Chairman of the Anesthesia Department at Beth Israel, in order to learn more about a potential position there. (Id. at 7). Dr. Epstein also passed her name along to Drs. Berenstein, Canter, and Brous. (Epstein Tr. at 27).

 In June 1996, after unsuccessfully trying to contact Dr. Koppolu and after learning that Dr. Nancy Lipsitz, a cardiac anesthesiologist at NYU, had been hired by Beth Israel, Dr. Schachner spoke with Dr. Epstein on several more occasions about working at the Institute. (Pl.'s Mem. of Law at 7). Soon thereafter, Dr. Epstein informed plaintiff that she would not be hired by Beth Israel. Instead, the final anesthesiologist position at Beth Israel was filled by Dr. Venkata Maddenini, another NYU doctor. Plaintiff was told by Dr. Jacobson that he thought her Sabbath observance could possibly have been a factor in defendants' decision not to hire her to work at Beth Israel. (Id. at 5). In addition, plaintiff alleges that Dr. Epstein also told her that she was not being hired for a position at Beth Israel because she was a Sabbath observer. (Id. at 7).

 Defendants claim that Dr. Schachner was not hired because Dr. Berenstein felt she was "not as secure as I would have liked," and because "[he] didn't feel comfortable [with her] in the operating room." (Berenstein Tr. at 63, 65; Epstein Tr. at 29-30; Canter Tr. at 54; Brous Tr. at 67). Overall, he felt that working with Dr. Schachner was at times "scary" and "not positive." (Berenstein Tr. at 67). Drs. Brous, Canter, and Epstein stated that Dr. Berenstein made his opinion of Dr. Schachner known to them before final selections for the remaining anesthesiologist positions were filled. (Epstein Tr. at 30, Canter Tr. at 47-50, Brous Tr. 15, 30).

 After the final anesthesiologist position at the Institute was filled, Drs. Brous, Canter, Lipsitz and Maddenini helped form the York Anesthesia Group ("York"), an entity comprised of all anesthesiologists having privileges at Beth Israel and that, by contract, is the exclusive provider of anesthesia to Beth Israel. (Id. at 8).

 Plaintiff sued both Beth Israel and York under Title VII and the NYHRL, alleging that they denied her employment on account of her religious practice of observing the Jewish Sabbath. Beth Israel and York move for summary judgement pursuant to Rule 56, F.R. Civ. P., on the grounds that plaintiff has failed to carry her initial burden to establish a prima facie case of discrimination, a requisite cornerstone of any Title VII and NYHRL litigation. See McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). *fn1" York also moves for dismissal on the ground that it fails to meet the necessary criteria to be sued under Title VII or NYHRL since it allegedly has no employees.

 II. Discussion

 In order to establish a prima facie case, plaintiff must show: 1) that she is in a protected class; 2) that she applied for and was qualified for a position that the employer was seeking to fill; 3) that, despite her qualifications, she was rejected; and 4) that the circumstances surrounding the employment decision give rise to an inference of unlawful discrimination. See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994). While defendants do not contest plaintiff's satisfaction of the first three elements of a prima facie case, they argue in their summary judgment motion that plaintiff has failed to establish that the events surrounding her employment rejection give rise to an inference of discrimination.

 A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering the evidence, all ambiguities and ...

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