United States District Court, S.D. New York
August 24, 2005.
ROBERT J. VOSATKA, PH.D., M.D., Plaintiff,
COLUMBIA UNIVERSITY, Defendant.
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
OPINION AND ORDER
Plaintiff Robert Vosatka, Ph.D., M.D. ("Vosatka"), commenced
this action on April 2, 2004, by filing a complaint against
Columbia University ("Columbia") alleging employment
discrimination in violation of the Americans with Disabilities
Act ("ADA") and various related state law claims (the
"Complaint"). Columbia now moves for summary judgment on all
claims. For the reasons set forth below, Columbia's motion is
I. Vosatka's Employment at Columbia University
Vosatka was appointed as an Assistant Professor of Pediatrics
at Columbia University in 1997. Def. 56.1 ¶ 2.*fn1 By virtue
of that appointment, Vosatka was a candidate for a tenured
position. Def. 56.1 ¶ 1, 2. Faculty holding tenure-track
positions are generally limited to a maximum of eight years of
full-time service unless they are granted tenure. Polin Decl.,*fn2 Ex. A at 44.*fn3
An eight-year term is not guaranteed, however, and "any full-time
appointment may be terminated at the end of its stated term, even
if eight years of service have not been completed, as long as the
officer is given adequate written notice." Polin Decl., Ex. A at
44. The Faculty Handbook requires a "Notice of Non-Renewal" to be
given at least twelve months before the end of an appointment
after two or more years of full-time service. Polin Decl., Ex. G
at 189.*fn4 Non-tenured faculty members may continue after
eight years if they are approved for clinical or practice
appointments. Polin Decl., Ex. A at 44. Clinical appointments
must be confirmed in writing and require the approval of various
University officials. Polin Decl., Ex. G at 188.
As an Assistant Professor of Pediatrics, Vosatka worked as a
research scientist and performed clinical duties. Pl. Aff. ¶
24.*fn5 While Vosatka claims that Dr. Richard Polin*fn6
orally assured him that he would be considered for a clinical
appointment if he were not granted tenure, Pl. Aff. ¶ 31,*fn7 Vosatka never received
such assurances in writing, Vos. Tr. A at 64.*fn8
II. Vosatka's Injuries
In November 1999, Vosatka ruptured his Achilles tendon. Pl.
Aff. ¶ 4. In March 2001, Vosatka suffered from a related
infection and experienced complications that resulted in more
than seventeen surgeries. Vos. Tr. A at 105, 119. Vosatka was
granted a fully-paid medical leave from March 2001 until May
2002. Def. 56.1 ¶ 24. Although Vosatka is capable of walking
"completely alone without any unassisting [sic] devices except
for some support stockings," Vos. Tr. A at 113, Vosatka alleges
that he cannot walk "too far" and tends to sit with his foot
raised, Vos. Tr. A at 107, 115. In spite of his injury, Vosatka
attempts to exercise occasionally and tries to help repair around
the house. Vos. Tr. A at 115-16.
Before his medical leave, Vosatka received a fourth-year
review, in which it was determined that he was an unlikely
candidate for tenure. Polin Decl., Ex. B.*fn9 The reviewers
cited Vosatka's low productivity, which they recognized was
partially due to a laboratory fire and a medical problem, and his low national visibility in
the research community as reasons for their decision. Polin
Decl., Ex. B.
While Vosatka was on leave, Columbia assisted him in acquiring
a disability supplement to enable him to continue his research.
Def. 56.1 ¶ 26. Approximately $2,000 of the supplement funded
equipment to assist Vosatka in his work duties. Vos. Tr. A at
121.*fn10 Technicians were also assigned to help Vosatka
with his work because he "could no longer stand for long hours at
the bench." Vos. Tr. B at 316.*fn11 Additionally, Vosatka
requested an office adjacent to the laboratory to avoid walking
and taking the stairs, and his office was subsequently moved to a
location within the laboratory space. Vos. Tr. A at 142-44.
In 2002, upon his return to work, Vosatka informed Dr. Polin
that he had difficulty doing clinical work because of his injury
and requested that he not be assigned to that department. Vos.
Tr. B at 320. Vosatka was subsequently removed from most or all
of his clinical responsibilities after August or September 2002.
Def. 56.1 ¶ 29. Thereafter, Vosatka never communicated an
interest in returning to his clinical responsibilities or any
ability to do so. See Vos. Tr. B at 321. III. The NIH Training Grant
While Vosatka was on medical leave, he was assigned to assist
Dr. Polin and Dr. Raymond Stark*fn12 in drafting an NIH
Training Grant proposal. Def. 56.1 ¶ 34. The proposal was not
submitted in 2002 as planned, so Vosatka continued to work on it
to meet the 2003 deadline. Vos. Tr. B at 372, 375. In order for a
grant proposal to be submitted, the grant must be approved by
various University officials. Vos. Tr. B at 378. Vosatka informed
Dr. Polin that he believed a provision in the NIH Training Grant
would violate a provision in the New York Health Law because the
grant could require postgraduate fellows working under the grant
to work more hours than were permitted under the New York State
law. Pl. Aff. ¶ 32; Vos. Tr. B at 379. Vosatka asserts that Dr.
Polin planned to instruct the fellows only to record their
clinical hours but not their research hours in order to avoid
detection. Pl. Aff. ¶ 33. In or about January or February 2003,
Vosatka refused to work on the grant application further because
he believed that it would violate New York regulations. Vos. Tr.
B at 376; Pl. Aff. ¶ 34. No fellows have worked in connection
with the NIH Training Grant at Columbia because it has neither
been submitted nor funded to date. Polin Decl. ¶ 19. IV. Vosatka's Conduct Toward Women*fn13
Vosatka shared his laboratory space with other researchers,
fellows, and technicians. Vos. Tr. A at 189-93. In 2003, several
of Vosatka's female subordinates and colleagues complained about
his behavior in the lab. Def. 56.1 ¶¶ 43, 52-53. In one incident,
Vosatka "had a couple of beers with friends" at a conference in
California and sent an e-mail at 4:21 a.m. to Ms. Taylor, a
female postdoctoral fellow who was a subordinate of his in the
lab. Vos. Tr. A at 192-93, 201-202. The subject of the e-mail was
"is thi [sic] you?," and, in the text, Vosatka included two links
to sexually explicit websites and asked "or is this you?" Garland
Decl.,*fn14 Ex. A.*fn15 Vosatka had "Googled" Ms.
Taylor's name in an effort to find her e-mail address and was
directed to several explicit websites of other women with the
same name who appeared to be selling sexual services. Vos. Tr. A
at 200-203; Garland Decl., Ex. A. Although Vosatka knew that the
women in those websites were not the same Ms. Taylor as the one
with whom he worked, Vosatka thought it was amusing to send Ms.
Taylor the links. Vos. Tr. A at 205. Dr. Marianne Garland, the senior female faculty member in the
lab, received complaints from several female employees of the lab
who had seen the e-mail and found it offensive. Def. 56.1 ¶¶
51-52; Garland Decl. ¶ 4. Additionally, the females in the lab
complained to Dr. Garland that Vosatka made a number of sexual
comments and offensive jokes that made them uncomfortable.
Garland Decl. ¶ 5. They told Dr. Garland that Plaintiff treated
his female subordinates poorly and did not interact with them in
a respectful manner. For example, Vosatka once told the younger
female employees that he lost ten pounds by circumcision. Garland
Decl. ¶ 5.
Dr. Garland and Dr. Michael Myers*fn16 arranged a meeting
between Vosatka and the female lab employees to resolve their
problems. Garland Decl. ¶ 7. The women thereafter reported to Dr.
Garland that they were further offended by Vosatka's comments
during the meeting that "women's menstrual cycles become
synchronized when they work together." Def. 56.1 ¶ 58; Vos. Tr. A
at 223-24. Vosatka also mentioned during the meeting that perhaps
the women were complaining because they were "all simultaneously
having Pre-Menstrual Syndrome." Def. 56.1 ¶ 59. Perhaps not
surprisingly, Dr. Myers and the female employees did not feel
that the meeting was successful, Vos. Tr. B at 246-47, so they
notified Dr. Polin of the problems between Vosatka and the female
employees in the lab, Garland Decl. ¶ 10. Dr. Polin asked Vosatka
to stay at home while the Dean of Academic Affairs investigated the complaints. Pl. Aff. ¶ 12. After the Dean
determined that Vosatka had not violated any University rules,
Pl. Aff. ¶ 16, Dr. Polin arranged a meeting among Vosatka, Dr.
Garland, and the University Ombudsperson to mediate a resolution
that would permit Vosatka to return to work in the lab, Def. 56.1
¶¶ 64-65. During that meeting, Vosatka accused Dr. Stark of
committing physical assault against Dr. Garland, which Dr.
Garland denied. Vos. Tr. B at 272; Garland Decl. ¶ 15. He also
claimed that Dr. Stark "told both [Vosatka and Dr. Garland] that
he had taken morphine from the laboratory" and "used it to inject
his neighbor who was dying. . . . He did mention that it was the
dose that, in his experience in doing this, would be sufficient
to terminate his life." Vos. Tr. B at 272, 273-75, 277. Dr.
Garland denied hearing this information, and Vosatka offered no
evidence to support his allegations. Vos. Tr. B at 281.
V. Psychiatric Evaluation
After Dr. Polin was informed of Vosatka's "erratic behavior"
and "bizarre allegations" during his meeting with the
Ombudsperson, Dr. Polin put Vosatka on medical leave and required
Vosatka to undergo a psychiatric evaluation to determine his
fitness to return to work. Def. 56.1 ¶ 69. The Faculty Handbook
allows the University to require an officer of instruction to
"undergo a medical examination by a physician . . . in any case
in which a question of medical disability arises." Polin Decl.,
Ex. G at 190. Dr. Owens, a psychiatrist, determined that Vosatka
showed indications of personality problems that likely
contributed to his conflicts with co-workers. Polin Decl., Ex. J.*fn17 Dr. Owens indicated
that Vosatka "lack[s] awareness of the impact of his actions on
others" and is "relatively impervious to objective criticism."
Polin Decl., Ex. J. Although Dr. Owens concluded that Vosatka was
"not impaired by any major mental illness, and he is cognitively
and emotionally able to return to work," he suggested that
Vosatka not continue to work with the people with whom he had
conflicted. Polin Decl., Ex. J. Dr. Rosenfeld, a clinical
psychologist, determined that Vosatka has a "tendency to feel
unfairly treated [which] is likely to lead to problems in work
environments." Polin Decl., Ex. J. Dr. Rosenfeld also believed
that Vosatka's personality traits were likely to "significantly
hinder his interpersonal functioning both at work and in social
relationships." Polin Decl., Ex. J. Dr. Polin opined that Vosatka
was fit to continue his work as a research scientist but "based
on the findings of the psychiatric report, [he] informed
[Plaintiff] that he could not return to his previous laboratory.
This conclusion resulted in [Plaintiff's] not being able to work
on the grant from which he derived the majority of his salary
support." Polin Decl. ¶ 28.
VI. Notice of Non-Renewal
On June 3, 2003, Vosatka met with Dr. Polin and Dr. Driscoll,
the Chair of the Pediatrics Department, and was informed that he
would be receiving a Notice of Non-Renewal but that his salary
would continue to be paid until June 30, 2004. Polin Decl. ¶ 30.
Dr. Polin and Dr. Driscoll informed Vosatka that his services were no
longer necessary because he could not return to his previous lab.
Vos. Tr. B at 309. Although they sought to find Vosatka another
position within the University where Vosatka could continue to
derive salary support, Vosatka did not follow through with those
opportunities. Polin Tr. at 70-73;*fn18 Vos. Tr. B at
320-29. Dr. Driscoll made several inquiries to identify
alternative laboratory opportunities for Vosatka. He spoke with
Dr. Libel, who had no lab space available. Vos. Tr. B at 311. Dr.
Driscoll also suggested that Plaintiff explore working with Dr.
Chung. Polin Decl. ¶ 29; Vos. Tr. B at 310. Although Dr. Chung
expressed interest in working with Vosatka, Vos. Tr. B at 322,
Vosatka declined to pursue the opportunity, Vos. Tr. B at 324.
Dr. Chung had explained to Vosatka that her clinical service was
"very busy." Vos. Tr. B at 321. Vosatka believed that he would be
incapable "of working around the entire hospital," so there was
"no physical way" he could follow up. Vos. Tr. B at 324. At no
point, however, did Vosatka inform Dr. Chung or Dr. Driscoll of
any mobility problems or inquire as to whether he would be able
to work with Dr. Chung in spite of his injury. Vos. Tr. B at 327.
Additionally, although Dr. Myers expressed interest in working
with Vosatka on a grant application for the following year,
Vosatka did not follow through with that opportunity and
eventually "just lost communication" with Dr. Myers. Vos. Tr. B
at 329. VII. St. Peter's Evaluation
In February 2004, Dr. Polin received a request to evaluate
Vosatka for a position at St. Peter's Hospital. Polin Decl., Ex.
M.*fn19 In several categories, Dr. Polin gave Vosatka a
score of "good," the second highest rating, but Vosatka believes
he should have been scored as "superior." Vos. Tr. B at 351-54.
In the category of "Cooperativeness/Ability to Work with Others,"
Vosatka received a "fair" rating, with which Vosatka also
disagreed. Vos. Tr. B at 354-55; Polin Decl., Ex. M.
Additionally, Dr. Polin declined to rate Vosatka in certain
categories and instead marked "unable to comment" on the
evaluation. Polin Decl., Ex. M. One of the categories marked
"unable to comment" asked whether the applicant had "ever been
subjected to any disciplinary action, such as admonition,
reprimand, suspension or termination." Polin Decl., Ex. M. On the
evaluation, Dr. Polin noted that he was evaluating Vosatka based
on "general impression." Polin Decl., Ex. M. Because Vosatka
considers the evaluation to be "among the worst of evaluations
that a neonatologist can receive," Plaintiff believes that Dr.
Polin intended to prevent Vosatka from securing the position at
St. Peter's Hospital. Vos. Tr. B at 363. Vosatka claims that Dr.
Polin completed the evaluation inaccurately and left out
information, causing the Chairman of Pediatrics at St. Peter's
Hospital to consider his application "incomplete." Vos. Tr. B at
345. Dr. Polin asserts that he completed the form accurately and
to the best of his knowledge and that he did not intend to prevent
Vosatka from receiving the position at St. Peter's Hospital.
Polin Decl. ¶¶ 33, 36.
I. The Standard
A. Summary Judgment Pursuant to Rule 56
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is proper if the pleadings, depositions,
interrogatories, admissions, and affidavits "show that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden to inform the district
court of the basis for its motion and to set forth the documents
it believes demonstrate the absence of any issue of material
fact. Id. at 323. Once the movant meets its burden, the
nonmoving party "must set forth specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). In
determining whether to grant summary judgment, the court must
view the facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citing Diebold, 369 U.S. at 655). "When
no rational jury could find in favor of the nonmoving party
because the evidence to support its case is so slight, there is
no genuine issue of material fact and a grant of summary judgment
is proper." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d
Summary judgment will not be granted "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248. However, "the mere existence
of some alleged factual dispute" alone, or a factual dispute
that is "irrelevant or unnecessary," will not be sufficient to
defeat summary judgment. Id. at 247, 248. Evidence that is
"merely colorable" or "not significantly probative" will also not
preclude summary judgment. Id. at 249-50. Additionally, a
plaintiff cannot "create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by
omission or addition, contradicts the affiant's previous
deposition testimony." Hayes v. N.Y.C. Dep't of Corr.,
84 F.3d 614, 619 (2d Cir. 1996).
B. Employment Discrimination Claims
The ADA makes it unlawful for an employer to "discriminate
against a qualified individual with a disability because of the
disability of such individual." 42 U.S.C. ¶ 12112(a) (2005). In
cases involving ADA claims, courts apply the procedure set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).*fn20 In McDonnell Douglas, the Court
articulated a burden-shifting analysis that allocates the burden of proof in "a private
non-class action challenging employment discrimination." Id. at
800. A plaintiff carries the initial burden to establish a prima
facie case under the statute. Id. at 802. The burden then
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its allegedly wrongful actions.
Id.; Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the defendant carries this burden, the plaintiff
must demonstrate that the defendant's proffered reason is a
pretext for discrimination. See St. Mary's Honor Ctr., et al.
v. Hicks, 509 U.S. 502, 508 (1993). "The ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff." Burdine, 450 U.S. at 253. In demonstrating pretext,
it is not enough "to disbelieve the employer; the factfinder
must believe the plaintiff's explanation of intentional
discrimination." St. Mary's, 509 U.S. at 519. If the plaintiff
cannot prove, by a preponderance of the evidence, that the
defendant's proffered reason is pretextual, then summary judgment
is appropriate. See Burdine, 450 U.S. at 256. II. Application
A. Vosatka's Discrimination Claims
Vosatka claims that Columbia discriminated against him in
violation of the ADA. In order to make a prima facie case of
disability discrimination under the ADA, Vosatka must show that
(1) Defendant is subject to the ADA; (2) Vosatka suffers from a
disability within the meaning of the ADA; (3) Vosatka could
perform the essential functions of his job with or without
reasonable accommodation; and (4) Vosatka was subject to an
adverse employment action because of his disability. See
Adams, 91 Fed. Appx. at 720.
The parties do not dispute that Columbia is subject to the ADA.
Thus, the first element of Vosatka's ADA claim is fulfilled.
To meet the second element of a prima facie case, Vosatka must
demonstrate that he is disabled within the meaning of the
statute. The ADA defines disability as either:
(A) a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (2005). In determining whether Vosatka
qualifies as disabled, I must (1) consider whether Vosatka is
physically or mentally disabled; (2) identify the major life
activity on which Vosatka relies; and (3) determine whether
Vosatka's impairment substantially limits that major life
activity. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
The Equal Employment Opportunity Commission (the "EEOC") has defined Major Life
Activities to include "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. 1630.2(i)
In assessing whether Vosatka has a disability,
"courts have been careful to distinguish impairments which merely
affect major life activities from those that substantially limit
those activities." Ryan v. Grae & Rybicki, 135 F.3d 867
(2d Cir. 1998). "Thus, whether a person has a disability under
the ADA is an individualized inquiry," Sutton v. United Air
Lines, 527 U.S. 471, 483 (1999), and the determination should be
made on a "case-by-case basis," Reeves v. Johnson Controls World
Servs, Inc., 140 F.3d 144
, 151 (2d Cir. 1998).
Vosatka claims that he is disabled pursuant to
42 U.S.C. § 12102(2)(C), under which an individual is considered disabled if
that individual is "regarded as having such an impairment" by his
or her employer. Complaint ¶ 33(b). This analysis requires a
court to evaluate "the employer's perception of the employee, a
question of intent, not whether the employee has a disability."
Francis, 129 F.3d at 284;*fn22 accord Adams, 91 Fed.
Appx. at 720 ("whether [Plaintiff] is in fact disabled is
irrelevant."). Moreover, "it is not enough . . . that the
employer regarded the individual as somehow disabled; rather, the plaintiff must show that the employer regarded the
individual as disabled within the meaning of the ADA." Colwell
v. Suffolk Co. Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998)
(citing Francis, 129 F.3d at 286). Thus, Vosatka must
demonstrate that Columbia regarded Vosatka as having an
impairment that substantially limits him in a major life
activity. See id. at 721.
At oral argument, Vosatka's counsel argued that Columbia
regarded Vosatka as psychologically impaired because (1) Dr.
Polin required Vosatka to take medical leave while submitting to
a psychiatric evaluation, and (2) Columbia acted upon the
negative language in the evaluation.
With respect to Vosatka's first argument, courts have
consistently held that a request for an employee to obtain a
medical evaluation alone is insufficient evidence of an
employer's intent or perception regarding that employee. See,
e.g., Doe v. Bd. of Educ. of Fallsburgh Cent. Sch. Dist.,
63 Fed. Appx. 46, 49 (2d Cir. 2003) ("this fact alone is
insufficient"); Colwell, 158 F.3d at 647 (the fact that the
exams were required "suggests no more than that their physical
condition was an open question."); Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 811 (6th Cir. 1999) ("requesting a mental
evaluation does not indicate that an employer regards an employee
as disabled"); Cody v. CIGNA Healthcare of St. Louis, Inc.,
139 F.3d 595, 599 (8th Cir. 1998) ("a request for an evaluation is
not equivalent to treatment of the employee as though she were
substantially impaired."). The ADA permits employers to "make
inquiries into the ability of an employee to perform job-related
functions" by requesting a medical evaluation. 42 U.S.C. § 12112(d)(4)(B). "Employers need to be able to use reasonable
means to ascertain the cause of troubling behavior without
exposing themselves to ADA claims under §§ 12112(a) and
12102(2)(C)." Eustace v. S. Buffalo Mercy Hosp.,
36 Fed. Appx. 673, 675 (2d Cir. 2002). Thus, Columbia's mere request that
Vosatka submit to a psychiatric evaluation is insufficient as a
matter of law to demonstrate that Columbia considered Vosatka to
be psychologically impaired.
Second, Vosatka argues that because Columbia acted upon the
negative recommendations contained in the medical evaluations,
Columbia must have believed that those evaluations indicated that
Vosatka was mentally disabled and thus considered him to be
disabled. Even if I were to assume that Dr. Polin relied on the
negative language in the evaluations, that language did not
indicate that Vosatka suffered from a mental impairment. Dr.
Owens, a psychiatrist, noted that Vosatka held "maladaptive
personality traits," however Vosatka "is not impaired by any
major mental illness, and he is cognitively and emotionally able
to resume work as a researcher and clinician." Polin Decl., Ex.
J. Because Vosatka's evaluation merely characterized him as
having maladaptive personality traits, and Dr. Owens determined
that his "clinical history, clinical observation of his mental
status, and the results of the MMPI-2 do not indicate the
presence of any major mental disorder at present," no reasonable
jury could find that the report characterized Vosatka as being
mentally impaired. Polin Decl., Ex. J.*fn23 Accordingly,
Vosatka has not proffered evidence from which a jury could find
that Columbia regarded him as disabled because even if Columbia
embraced the evaluations, the results of those evaluations do not support
the contention that Vosatka was mentally impaired.*fn24
Vosatka also asserts that "the order to undergo a psychiatric
evaluation was not made in good faith," Pl. Opp. at 6, ¶
9,*fn25 however, Vosatka cites no evidence from which the
jury could so find. To the contrary, Vosatka has not disputed any
of Columbia's assertions regarding Vosatka's inappropriate
behavior. Vosatka concedes that he sent an e-mail to a female
subordinate which led her and her colleagues to complain about
its sexually suggestive nature. Pl. Aff. ¶ 11. Although he claims
that this e-mail was consistent with the humor in the lab, Vosatka does not
contend that others were similarly complained about. Pl. Aff. ¶¶
13, 14. The parties agree that the Dean of Academic Affairs
determined that no University policies had been violated and that
a meeting was planned for Vosatka and the female lab employees to
resolve their problems. Pl. Aff. ¶ 16; Vos. Tr. A at 221. It is
undisputed that Vosatka made additional comments at that meeting
that the women complained were offensive, which led to a
subsequent meeting between Vosatka, Dr. Garland, and the
University Ombudsperson. Vos. Tr. A at 221-24; Vos. Tr. B at 246,
265-68. Vosatka admits that during the meeting he accused Dr.
Stark of (1) committing assault against Dr. Garland, and (2)
telling Dr. Garland and Vosatka that he had euthanized a
neighbor. Vos. Tr. B at 272-81. Vosatka offered no support for
those allegations, which Dr. Garland denied. Vos. Tr. B at 281;
Garland Decl. ¶ 15. Whether or not the allegations are true,
Columbia had a legitimate concern about Vosatka's inappropriate
behavior in the lab and Vosatka's admitted accusations regarding
Dr. Stark during the meeting with the Ombudsperson. See Def.
56.1 ¶¶ 45-61, 66. No jury could fail to find that these
undisputed incidents provide ample basis for Dr. Polin to inquire
into Vosatka's psychological ability to work in the lab. Again,
the good faith request for a psychiatric evaluation cannot
provide a basis for a finding that Vosatka was regarded as
In any event, the undisputed evidence is that the evaluations
ordered did not find Vosatka to be suffering from any major
mental illness or defect that would prevent him from working but
recommended that he not return to the same laboratory; instead, it is also
undisputed that Columbia followed those recommendations and
suggested other lab opportunities to Vosatka, which he concedes
he failed to pursue. See Vos. Tr. B at 320-29. The fact that
Columbia sought to retain Vosatka as an employee as long as he
was assigned to a different lab is wholly inconsistent with
Vosatka's assertion that Columbia regarded him as mentally
disabled. Thus, there is no evidence in the record from which a
jury could find that Columbia considered Vosatka to be
Even if Vosatka had demonstrated that he was regarded as
psychologically impaired, Vosatka's claim would still fail
because his perceived impairment would not substantially limit
him in any major life activity. At oral argument, Vosatka's
counsel asserted that Vosatka was regarded by Columbia as
substantially limited in the major life activity of working.
However, Vosatka provides no evidence from which a factfinder
could so find. Assuming, without deciding, that working
constitutes a major life activity, the Supreme Court in Sutton
v. United Airlines held that "the statutory phrase
`substantially limits' requires, at a minimum, that plaintiffs
allege they are unable to work in a broad class of jobs" or a
broad range of jobs in various classes. 527 U.S. at 491; accord
29 C.F.R. 1630.2(j) (3) (i). Vosatka has not specified any class
of jobs or any range of jobs in various classes that, due to his
alleged perceived psychological impairment, Columbia regarded him
as substantially limited in performing. Additionally, there is no
evidence in the record from which a jury could find that
Vosatka's superiors at Columbia regarded him as substantially
limited in his ability to work; to the contrary, they attempted to find another lab or
clinical assignment in which Vosatka could continue working in a
research capacity. Vos. Tr. B at 311-25. Vosatka's "`conjecture
or surmise' about [D]efendants' perceptions and motives for
discharging [him] are insufficient to create a genuine issue of
material fact" as to whether Defendant regarded him as disabled.
Klem v. Popular Ford Sales, Inc., 975 F. Supp. 196, 202
(E.D.N.Y. 1997). Accordingly, there is no evidence in the record
from which a jury could conclude that Vosatka was regarded by
Columbia as being substantially limited in the major life
activity of working as a result of a perceived mental impairment.
Because Vosatka has not proffered evidence from which a jury
could find that he was regarded as disabled within the meaning of
the ADA, Vosatka has failed to satisfy the second requirement for
a prima facie case for discrimination under the ADA.*fn26 2. Reasonable Accommodations
Vosatka has also not discussed, either in his Complaint or
moving papers, whether he could perform the essential functions
of his job with or without reasonable accommodation, which is the
third element of a prima facie case for discrimination under the
ADA. At oral argument, Vosatka's counsel asserted that Vosatka
does not claim to be disabled with regard to his leg injury and
only claims to be regarded as psychologically disabled by
Columbia. Thus, I will assume that Vosatka believes he could
perform his job without reasonable accommodations because he does
not consider himself disabled. Even if Vosatka needed a
reasonable accommodation with regard to any psychological
impairment in order to perform the essential functions of his
job, his argument that he was not reasonably accommodated would
still fail as a matter of law because Vosatka did not request any
accommodations. It is the responsibility of the disabled
individual to inform the employer that an accommodation is
needed. 29 C.F.R. App. § 1630.9 (1999). "If the employee fails to
request an accommodation, the employer cannot be held liable for
failing to provide one." DeMar v. Car Freshner Corp.,
49 F. Supp. 2d 84, 95 (N.D.N.Y. 1999) (quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)). Although I
assume that Vosatka can perform the essential functions of his
job without reasonable accommodations for his perceived
disability, Vosatka has not demonstrated that he is disabled or
regarded as disabled within the meaning of the ADA, which is the
second element of the prima facie case. Therefore, I decline to
evaluate the fourth element.*fn27 B. Reason for Adverse Action
After a plaintiff makes a prima facie case of discrimination,
the defendant must "rebut the presumption of discrimination by
producing evidence that the plaintiff [suffered an adverse
action] for a legitimate, nondiscriminatory reason." Burdine,
450 U.S. at 255. "The defendant need not persuade the court that
it was actually motivated by the proffered reasons." Id. at
254. The employer is only required to "produce admissible
evidence which would allow the trier of fact rationally to
conclude that the employment decision had not been motivated by
discriminatory animus." Id. at 257.
Columbia has documented several incidents in which Vosatka
behaved in a manner that caused his colleagues and subordinates
to report to his superiors that Vosatka's behavior offended them
and that the behavior concerned his supervisors. See Def. 56.1
¶¶ 43-67. Vosatka argues that his conduct "was not significantly
different from the conduct of the other research scientist and
staffers in the laboratory." Pl. Opp. at 5, ¶ 7. However, when
Vosatka's e-mail and comments are compared to the e-mails of his
colleagues, it is indisputable that Vosatka's comments were more
personal and his e-mail was more sexually explicit and thus that
Vosatka's e-mail to Ms. Taylor was qualitatively different from
the e-mails of Vosatka's colleagues. Compare Garland Decl., Ex.
A with Pl. Aff., Ex. 1, 2. It is undisputed that Plaintiff's
female subordinates complained to his superiors that they were
offended by his inappropriate jokes, some of which addressed
topics such as circumcision and the females' menstrual cycles.
However, there is no evidence that Vosatka's colleagues' e-mails were either considered offensive or
As discussed in detail above, Dr. Polin had been advised to
remove Vosatka from his prior lab. See, supra, II. A. 1. at 21.
Also, Vosatka had requested to be removed from clinical service
and never communicated an interest in resuming clinical
activities. Vos. Tr. B at 320-21. Columbia argues that, as a
result, Vosatka was issued a Notice of Non-Renewal "for having no
substantial means to contribute to the University." Def. Memo. at
13.*fn28 "All faculty members are expected to perform
research and/or clinical work in order to support a substantial
portion of their salary." Polin Decl. ¶ 8. Vosatka does not
dispute that his research was primarily supported by a grant on
which Dr. Stark was the principal investigator. Vos. Tr. A at 96,
139. Thus, as a result of being unable to return to his previous
lab, Vosatka was unable to continue working on the grant from
which he derived the majority of his salary support. Polin Decl.
¶ 28. Since Vosatka did not pursue other laboratory
opportunities, he "simply had no work that he could perform for
the University. Therefore his non-renewal became effective on
June 30, 2004." Polin Decl. ¶ 32. Accordingly, Columbia has
proffered a legitimate, non-discriminatory reason for its adverse
employment action as to Vosatka. C. Pretext
Vosatka contends that the reasons given by Columbia are a
pretext for discrimination. Once a defendant has proffered a
legitimate, non-discriminatory reason for the adverse action,
"`the prima facie case is rebutted.'" St. Mary's,
509 U.S. at 507 (quoting Burdine, 450 U.S. at 255). A plaintiff must then
demonstrate that the defendant's allegedly legitimate reasons are
a pretext for discrimination. Id. at 515. In order to find
discriminatory intent, "there must be evidence which points to
discrimination." Payne v. N.Y. Power Auth., 997 F. Supp. 492,
500 (S.D.N.Y. 1998). A plaintiff's "conclusory allegations,
without more, do not give rise to an inference of discriminatory
motive." Barriera v. Banker's Trust, No. 98 Civ. 3641 (MBM),
2003 U.S. Dist. LEXIS 18601, at *20 (S.D.N.Y. Oct. 20, 2003).
As discussed at oral argument, Vosatka's only evidence to show
that Columbia's reasons for not renewing him are pretextual is
the close temporal proximity between the medical evaluations and
Vosatka's Notice of Non-Renewal. As noted above, Vosatka argues
that Columbia embraced the negative language in the medical
evaluations, regarded Plaintiff as psychologically impaired
because of that language, and soon thereafter issued a Notice of
Non-Renewal as a result. Vosatka's argument fails as a matter of
law. "Although the sequence and timing of events, alone, creates
an `inference of discrimination' sufficient to satisfy
plaintiff's burden in the first step of the McDonnell Douglas
analysis," Bainlardi v. SBC Warburg, Inc., No. 97 Civ. 2861,
1998 U.S. Dist. LEXIS 13491, at *18 (S.D.N.Y. Sept. 1, 1998); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178
(2d Cir. 1996), "the timing of events alone, even if sufficient
to meet the plaintiff's prima facie burden, cannot defeat summary
judgment in the face of defendant's proffered legitimate reason."
Reilly v. Metro-North Commuter R.R. Co., No. 93 Civ. 7317,
1996 U.S. Dist. LEXIS 17061, at *48 (S.D.N.Y. Nov. 15, 1996); See
O'Dell v. Trans World Entm't Corp., 153 F. Supp. 2d 378, 396
(S.D.N.Y. 2001) ("notwithstanding the close temporal proximity . . .
no inference of retaliatory discrimination is warranted.");
Ali v. Mount Sinai Hosp., No. 92 Civ. 6129, 1996 U.S. Dist.
LEXIS 8079, at *28 (S.D.N.Y. June 12, 1996) (a plaintiff "cannot
avoid summary judgment by `merely pointing to the inference of
causality resulting from the sequence in time of the events.'")
(quoting Chojar v. Levitt, 773 F. Supp. 645, 655 (S.D.N.Y.
While timing, in conjunction with other circumstances, may
provide an inference of a causal relationship, timing alone is
insufficient to sustain Vosatka's argument. See Ali,
1996 U.S. Dist. LEXIS 8079, at *28. Accordingly, the close temporal
proximity between the medical evaluations and the Notice of
Non-Renewal, alone, is insufficient as a matter of law to infer
discrimination on the part of Columbia once Columbia has
proffered legitimate non-discriminatory reasons for the Notice of
Non-Renewal. Because Vosatka has not offered any evidence from
which a jury could find that Columbia's non-discriminatory
reasons for Non-Renewal are pretextual, his discrimination claims
under the ADA and the NYHRL must fail. D. Retaliation
Vosatka claims that Columbia retaliated against him in
violation of the ADA and the NYHRL.*fn29 Each of these laws
prohibits an employer from discriminating against an individual
for opposing any practices made unlawful by the law or for
participating in a proceeding under these laws. See
42 U.S.C. § 12203 (2005); N.Y. Exec. § 296(e) (2005). In order to set forth a
prima facie case of retaliation, Vosatka must demonstrate that
(1) he engaged in a protected activity; (2) Columbia was aware of
this activity; (3) Columbia took adverse action against Vosatka;
and (4) a causal connection exists between the protected activity
and the adverse action, "i.e., that a retaliatory motive played
a part in the adverse employment action." Cifra v. Gen. Elec.
Co., 252 F.3d 205, 216 (2d Cir. 2001) (quoting Sumner v. U.S.
Postal Serv., 899 F.2d 203, 208-209 (2d Cir. 1990)).
With respect to his retaliation claims under the ADA and the
NYHRL, Vosatka fails to indicate any protected activities in
which he engaged. At oral argument, counsel argued that Vosatka
believes he was retaliated against for verbally questioning the
NIH Training Grant proposal's hours requirement. However, even
assuming that mere allegation was cognizable on summary judgment,
verbally questioning the grant application during drafting is not
protected activity within the meaning of ADA or the NYHRL. Vosatka also appears to claim that Columbia retaliated against
him "with the hope of injuring his efforts to find employment by
telling St. Peter's University Hospital that it could not
evaluate his clinical skills although it knew that statement was
untrue." Complaint ¶ 33(e). Again, assuming this mere allegation
to be cognizable, case law indicates that "an employer's
disagreement with her employer's evaluation of her performance is
insufficient to establish discriminatory intent." Ricks v. Conde
Nast Publ'n, Inc., 6 Fed. Appx. 74, 78 (2d Cir. 2001); see
also Klem, 975 F. Supp. at 203 (holding that a refusal to
discuss Plaintiff's employment may be a "reasonable defensive
measure" adopted "to avoid subjecting [defendants] to a claim for
retaliation and to avoid misleading prospective employers as to
[plaintiff's] admittedly suboptimal performance."). Thus,
Vosatka's claims for retaliation based on the St. Peter's
Hospital form must fail as a matter of law, both under the ADA
Vosatka also asserts a retaliation claim under Labor Law § 740
(2) (c) (2005), which prohibits an employer from retaliating
against an employee who "objects to, or refuses to participate in
any such activity, policy, or practice in violation of a law,
rule or regulation." New York courts have consistently held that
"a cause of action predicated on Labor Law § 740 requires proof
of an actual violation." Bordell v. General Elec. Co. et al.,
88 N.Y.2d 869, 871 (1996); see, e.g., Hookman v. Lenox Hill
Hosp., 659 N.Y.S.2d 36 (1st Dep't 1997); Green v. Saratoga
A.R.C., 650 N.Y.S.2d 441, 442 (3d Dep't 1996). Vosatka alleges that Columbia retaliated against him after he
refused to work on an NIH Training Grant proposal because he
believed that a provision in the grant would violate a New York
Health Law. Complaint ¶ 35. Again, even assuming that allegation
was cognizable on summary judgment, Vosatka has not alleged or
proffered evidence that the grant application was submitted, that
the NIH agreed to fund the grant, or that any fellows at Columbia
worked under the grant in violation of New York laws. Thus,
Vosatka's claim must fail because the grant that he refused to
work on was never "in violation of a law, rule or regulation."
Labor Law § 740 (2) (c).
E. Breach of Contract
Vosatka alleges that Columbia breached its employment contract
with Plaintiff. However, Vosatka has not provided the Court with
a copy of any employment contract. Vosatka has also failed to
discuss any such contract in his moving papers. In fact, the only
reference to a contract in Plaintiff's documents is his Fifth
Claim for Relief, where he states "Defendant breached the
contract of employment that it had enter [sic] into with
Plaintiff." Complaint ¶ 46.
Vosatka admits that he never received a promise in writing from
Columbia informing him that he would be appointed to a Clinical
Professor of Medicine position. Vos. Tr. A at 64. Additionally,
the Faculty Handbook, which Vosatka admits applied to him, does
not impose a "just cause" requirement for non-renewal and does
not guarantee clinical appointments for non-tenured faculty
members. Vos. Tr. A at 77; Polin Decl., Ex. G at 188-89.
"Contemporaneous oral blandishments and promises allegedly made . . . cannot
negate this written provision." Johns v. Int'l Bus. Mach.
Corp., 361 F. Supp. 2d 184, 188 (S.D.N.Y. 2005). Although
Vosatka claims he was orally assured that he would be "considered
for an appointment to a clinical position," Pl. Aff. ¶ 31,
general assurances do not constitute binding contractual
obligations affecting Vosatka's at-will employment status. See
Jaffe v. Aetna Cas. & Sur. Co., No. 93 Civ. 0385, 1996 U.S.
Dist. LEXIS 8421, at *8-9 (S.D.N.Y. June 18, 1996), aff'd, No.
96-7886, 1997 U.S. App. LEXIS, 12804 (2d Cir. June 2, 1997);
Johns, 361 F. Supp. 2d at 188. Thus, Vosatka's claim for breach
of contract fails.
F. Intentional Infliction of Emotional Distress
Vosatka claims that Columbia committed the tort of intentional
infliction of emotional distress. This tort is "highly disfavored
under New York law." Kearney v. County of Rockland, No. 04 Civ.
1737 (WCC), 2005 WL 1420895 (S.D.N.Y. June 15, 2005). In order to
prevail on this claim, a plaintiff must show (1) extreme and
outrageous conduct; (2) intent to cause severe emotional
distress; (3) a causal connection between the conduct and the
injury; and (4) severe emotional distress. Id. In New York,
"these elements are applied very strictly." Id. (citing Martin
v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985)).
Vosatka has failed to proffer any evidence supporting the above
elements. In his testimony, Vosatka stated that being sent to a
psychiatrist and ultimately terminated constituted extreme and
outrageous conduct. Vos. Tr. B at 405-406. However, the ADA
permits an employer to request a medical evaluation of an employee in
order to determine the employee's fitness for work.
42 U.S.C. § 12112 (d) (4) (B). Additionally, the terms of Vosatka's
employment were listed in the Faculty Handbook, which states that
any full-time appointment may be terminated or not renewed at the
end of its stated term as long as the faculty member receives
adequate written notice. Polin Decl., Ex. G. Thus, the legitimate
activities in which Columbia engaged cannot be considered
"extreme and outrageous." This is especially true in light of
case law indicating that "recovery is limited to cases where the
defendant's conduct was `so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society.'" Kearney, 2005 WL 1420895, at *12
(quoting Fischer v. Maloney, 43 N.Y.2d 553, 558 (1978)).
Because Vosatka has failed to satisfy the first requirement for a
claim of intentional infliction of emotional distress, I need not
address the remaining factors. CONCLUSION
For the foregoing reasons, Defendant's motion for summary
judgment is granted in its entirety. The Clerk of the Court shall
mark this action closed and all pending motions denied as moot.