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March 5, 2001


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 employment practices.

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.

I. Standard of Review

A. Conversion of Rule 12(b)(6) Motion into Motion for Summary Judgment

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. 56(c).

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 ...

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