The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiff Dr. Lawrence A. Kaplan filed his complaint in this matter, initially proceeding pro se, on October 15, 2007, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), based on his termination as a director of the Petrie Laboratory, part of Defendant Beth Israel Medical Center. After approximately fifteen months of discovery, during which time Plaintiff obtained counsel, Defendant filed its motion for summary judgment on July 20, 2009. On August 10, 2009, Plaintiff filed his opposition to Defendant's motion for summary judgment, and Defendant submitted a reply on September 11, 2009. The Court heard oral argument on October 20, 2009. For the reasons discussed herein, Defendant's motion for summary judgment as to Plaintiff's age discrimination claim is granted.
The majority of facts material to Defendant's motion are undisputed. Plaintiff, Dr. Lawrence A. Kaplan ("Plaintiff") was hired in June of 2004 as one of the directors of the Petrie Laboratory ("Petrie"), part of Defendant Beth Israel Medical Center ("Defendant" or the "Hospital").*fn1 (Def. 56.1 ¶¶ 2-3; Pl. 56.1 ¶ A2.)*fn2 Plaintiff was hired by Dr. Bruce Wenig, who had ultimate responsibility for all Continuum laboratories. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ A2.) At the time Plaintiff was hired, he was 60 years old. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ A2.) Petrie's business of specimen analysis was an important source of revenue for the Hospital, and in 2005, Petrie experienced several problems with its specimen analysis systems, specifically turnaround time for samples. (Def. 56.1 ¶¶ 4-6; Pl. 56.1 ¶¶ A4-A6.) Problems in the laboratory pre-dated Plaintiff's arrival and there is no evidence to suggest that Plaintiff was to blame for the problems. (Pl. 56.1 ¶ 6.)
In February 2006, Continuum hired Dr. Patricia Luhan as Executive Director for Pathology & Laboratory Medicine. (Def. 56.1 ¶ 9.) As of May 2006, the Continuum laboratories had three directors: Plaintiff at Petrie; Dr. Ronald Gamardella at the St. Luke's/Roosevelt Lab; and Dr. Joseph Schappert of Beth Israel who oversaw both the St. Luke's/Roosevelt and Petrie laboratories. (Def. 56.1 ¶ 12.) Dr. Luhan suggested that Plaintiff be dismissed and Dr. Wenig agreed with and approved the decision. (Def. 56.1 ¶ 14.)
Plaintiff's employment was terminated on or about August 16, 2006 in person by Dr. Luhan. (Def. 56.1 ¶ 1; Pl. 56.1 ¶¶ A1, B18.)*fn3 At the time, Dr. Luhan did not tell Plaintiff that the reason for his dismissal was a reduction in force, a reorganization or redundancy, nor did she provide him with a letter to that effect. (Pl. 56.1 ¶ B23.) At the time of his dismissal, Plaintiff was 62 years old and the two individuals responsible for the decision to terminate his employment, Drs. Wenig and Luhan, were 51 and 59, respectively. (Def. 56.1 ¶¶ 2, 9; Def. Reply 56.1 ¶ B35.) At the time of Plaintiff's dismissal, the two remaining directors, Drs. Schappert and Gambardella were 57 and 59, respectively. (Def. 56.1 ¶¶ 13, 21.) Both Drs. Schappert and Gambardella were hired as directors before Plaintiff and therefore had more seniority as directors at Continuum than Plaintiff. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ A13; Def. Reply 56.1 ¶ A13.)*fn4
By letter dated August 1, 2006, Dr. Luhan gave 90 days notice that Defendant was terminating the contract of another age-protected individual, Stuart Seidman, pursuant to the terms of his written contract. (Def. 56.1 ¶ 22.) Unlike Plaintiff, Mr. Seidman was an independent contractor and not an employee of the Hospital, he worked in sales and marketing, not clinical pathology, and he had an MBA degree, not a Ph.D or M.D. (Id.) After further conversations between Mr. Seidman and the Hospital, Mr. Seidman's contract was not terminated on November 1, 2006, and instead his time working at the Hospital was reduced from five days per week to two days per week. (Def. 56.1, Ex. R.)
The parties disagree over the reason for Plaintiff's dismissal. Plaintiff argues that he was dismissed as a result of age discrimination. Defendant claims that Plaintiff was dismissed as a result of a reorganization plan for Continuum's specimen lab work, proposed and put into place by Dr. Luhan, whereby one director position was eliminated in order to streamline the chain of command, which Drs. Wenig and Luhan hoped would decrease specimen turnaround times and improve business operations. (Def. 56.1 ¶¶ 9-14.) Defendant claims that Dr. Luhan selected Plaintiff for dismissal because he had the least seniority among the three directors. (Def. 56.1 ¶ 13.) Plaintiff disputes Defendant's justification for his termination and argues that the proffered reason is merely a pretext for discrimination.
In order to meet its burden on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010). The non-moving party, however, "may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations omitted). Moreover, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In order for Plaintiff to survive a motion for summary judgment, he must come forward with evidence sufficient to carry his initial burden of showing a prima facie case of age discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The prima facie case for age discrimination under the ADEA involves four elements. Plaintiff must first show that (i) he was of a protected age; (ii) he was qualified for his job; (iii) he was discharged from his job; and (iv) the discharge occurred in circumstances giving rise to an inference of age discrimination. See Gorzynski, 596 F.3d at 107; Pena v. Brattleboro Retreat, 702 F.2d 322, 324 (2d Cir. 1983); Montana v. First Federal Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989). It is undisputed that Plaintiff meets the first three elements of his prima facie case.
Recently, the United States Supreme Court clarified that, in order to make out a claim of age discrimination under the ADEA, a plaintiff must show that "age was the 'but-for' cause of the employer's adverse action," and the ADEA does not authorize mixed-motives age discrimination claims. Gross v. FBL Fin. Servs., Inc., ____ U.S. ___, 129 S.Ct. 2343, 2350-51 (2009). While Gross could be read to alter the fourth element of a prima facie claim under the ADEA, at least one Second Circuit decision has left the four elements unchanged after Gross. See Gorzynski 596 F.3d at 107. Further, while both parties note the Gross decision in their briefing, the case was decided only one moth before the opening brief was filed in this motion and both parties assume the Plaintiff need only show circumstances giving rise to an inference of discrimination in order to establish the fourth element of his prima facie case.
Once Plaintiff has put forth sufficient evidence to establish his prima facie case, the Court will employ the familiar evidentiary burden shifting of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). While the Supreme Court in Gross noted that it had never definitely decided whether the evidentiary framework of McDonnell Douglas is appropriate in ADEA cases, Gross, 129 S.Ct. at 2349 n.2, it did not reject that practice. See Gorzynski, 596 F.3d at 106 (noting that Gross did not reject McDonnell Douglas for ADEA claims and stating "we remain bound by, and indeed see no reason to jettison, the burden-shifting framework for ADEA cases that has been consistently employed in our Circuit"). Therefore, if Plaintiff succeeds in establishing a prima facie case of age discrimination, the burden of production shifts to Defendant to "articulate some legitimate, nondiscriminatory reason" for Plaintiff's dismissal. Leibowitz v. Cornell University, 584 F.3d 487, 498-99 (2d Cir. 2009) (quoting Patterson v. County of ...