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AHMED v. GELFAND
March 5, 2001
AFTAB AHMED, PLAINTIFF,
GARY H. GELFAND, LOUIS COSENZA, AND JAMAICA HOSPITAL MEDICAL CENTER, DEFENDANTS.
The opinion of the court was delivered by: Johnson, District Judge.
Plaintiff Aftab Ahmed ("Plaintiff"), brings this action
against Defendants, Gary H. Gelfand ("Gelfand"), Louis Cosenza
("Cosenza"), and Jamaica Hospital Medical Center (the
"Hospital"), (collectively, "Defendants"), pursuant to Title VII
of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e
et seq. ("Title VII"), the Fair Labor Standards Act,
29 U.S.C. § 216 ("FLSA"), 42 U.S.C. § 1985 and 1986, and the Americans
with Disabilities Act, 29 U.S.C. § 12101, et seq. (the "ADA").
Plaintiff has also raised New York state law claims alleging
intentional infliction of emotional distress and defamation.
Presently before the Court is Defendants' motion to dismiss,
pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for
summary judgment, pursuant to Fed.R.Civ.P. 56(b). For the
reasons stated herein, Defendants' motion for summary judgment
is granted in its entirety.
Plaintiff was employed by the Hospital as an evening shift
staff pharmacist in the Hospital's Pharmacy Services department
(the "Pharmacy") from August 10, 1992, until approximately
January 13, 1998. Defendant Gelfand is the Director of the
Pharmacy and Defendant Cosenza is the Assistant Director of the
Pharmacy. The Pharmacy is responsible for providing all
medications for both its patients and the residents of a 204-bed
nursing home located adjacent to the Hospital.
Plaintiff states that some time after he was hired, but prior
to November 1996, the Pharmacy experienced a personnel shortage.
(Compl. ¶ 11.) Plaintiff claims that he repeatedly complained to
Cosenza and Gelfand about the alleged shortage and the resultant
increase in his workload. (Compl. ¶ 11-12.) According to
Plaintiff, during a Pharmacy staff meeting in December 1996.
Cosenza expressly stated that Plaintiffs religion was the cause
of the "problems" that the Pharmacy was experiencing. (Compl. ¶
12.) Plaintiff is Muslim, and prior to being hired, advised
Defendants that his religious beliefs required him to pray for
two to three minutes each day at sunset. Plaintiff asserts,
however, that his religious observance never adversely affected
his job performance. (Compl. ¶ 10.) Plaintiff further states
that Cosenza and Gelfand engaged in religious discrimination and
harassment from December 1996 until Plaintiff was terminated in
January 1998. (Compl. ¶¶ 12, 14.) Plaintiff essentially alleges
that he was terminated because of his religious beliefs and in
retaliation for protesting the Hospital's allegedly unlawful
Defendants contend that Plaintiff began making errors in
filling prescriptions shortly after he was hired in August 1992.
(Def. Mem. at 5.) Defendants have produced numerous documents
chronicling Plaintiffs performance from 1993 to 1998. (Def.
Notice of Mot., Exs. 4, 5, 8, 10, 12, 14, 15.)*fn1 These
documents indicate Defendants' concerns regarding Plaintiffs
accuracy started as early as 1993. (Def.
Notice of Mot., Ex. 4.) Defendant Gelfand has declared that
during the first six months of 1997, Plaintiff made more
mistakes than any other pharmacist made in an entire year.
(Gelfand Decl. ¶ 24.) These mistakes include entering the wrong
dose or frequency for prescribed medications, entering and
dispensing medications to the wrong patient, and entering and
dispensing the wrong medications. (Gelfand Decl. ¶ 22.)
Defendants state that due to Plaintiffs allegedly persistent
errors, Gelfand planned to ask Plaintiff to resign on January
13, 1998. (Gelfand Decl. ¶ 32.) Defendants state that Plaintiff
called in sick on that date. However, during subsequent
conversations with Gelfand. Plaintiff requested that he be laid
off so that he could collect benefits from his union. (Gelfand
Decl. ¶ 34.) Defendants assert that Plaintiff was later informed
that he could not be laid off and was given until January 26,
1998 to resign. (Gelfand Decl. ¶ 35.) Gelfand attests that
Plaintiff did not respond by that date, and on February 3, 1998,
Plaintiff was mailed a discharge notice and advised that he had
been terminated. (Gelfand Decl. ¶ 35; Def. Notice of Mot., Ex.
20.) Plaintiff filed a Notice of Charge of Discrimination with
the Equal Employment Opportunity Commission ("EEOC") on June 9,
1998 alleging religious discrimination, and instituted the
instant action in October of that same year.
A. Conversion of Rule 12(b)(6) Motion into Motion for
When considering a defendant's motion to dismiss under
Fed.R.Civ.P. 12(b)(6), the Court must accept as true factual
allegations in the complaint and construe all reasonable
inferences in the plaintiffs favor. Leatherman v. Tarrant
County Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164,
113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Hernandez v. Coughlin,
18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 115
S.Ct. 117, 130 L.Ed.2d 63 (1994). However, in a motion to
dismiss under 12(b)(6), where affidavits and exhibits in
addition to the pleadings are presented to and not excluded by
the court, the court must convert the 12(b)(6) motion into a
motion for summary judgment. Fed.R.Civ.P. 12(b); See also
M.J.M. Exhibitors, Inc. v. Stern (In re G. & A. Books, Inc.),
770 F.2d 288 (2d Cir. 1985). In the interest of fairness, all
parties are to be given reasonable opportunity to present all
material relevant to a summary judgment motion. Fed.R.Civ.P.
The motion currently before the Court is styled as a motion to
dismiss, or in the alternative for summary judgment. Both
parties have submitted exhibits outside the pleadings and
Plaintiff was aware from the instant the motion was filed that
the Court might construe the motion as one for summary judgment.
As Plaintiff had ample opportunity to present relevant material
outside the record in its opposition to Defendants' motion, the
Court moves forward treating Defendants' motion as one for
summary judgment pursuant to Fed.R.Civ.P. 56.
B. Summary Judgment Standard Of Review
Summary judgment is appropriate when there is no genuine issue
as to any
material fact, and the moving party is entitled to judgment as a
matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The burden is on the movant to establish the absence of
any material factual issues, and the acts must be construed in
the light most favorable to the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If reasonable minds could
differ as to the import of the evidence," summary judgment is
inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Once the moving party has met its burden demonstrating that
there is no genuine issue of material fact to be tried, the
burden shifts to the non-moving party to present "significantly
probative" supporting evidence showing that there is a material
factual issue for trial. Id. at 249, 106 S.Ct. 2505. "Only
those facts that might affect the outcome of the suit under the
governing law will properly preclude the ...