The opinion of the court was delivered by: Matsumoto, United States District Judge
Plaintiff Satish Deshpande, M.D. ("plaintiff" or "Dr. Deshpande") brings this retaliation action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq. ("Title VII"), the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-107 et seq., based on the defendants' decision to renew his admitting privileges for one year, instead of two years, and to monitor his interactions with residents. Defendants Medisys Health Network, Inc., The Jamaica Hospital Medical Center, the Medical Staff of Jamaica Hospital Medical Center and David Rosen (collectively, "defendants" or the "Hospital") move for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that there are no genuine issues of material fact for trial and that they are entitled to judgment as a matter of law. Based upon the submissions of the parties and oral argument held on March 26, 2010, as stated in the court's order dated March 31, 2010, for the reasons stated below, defendants' motion is granted in its entirety.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1,*fn1 are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.
I. Plaintiff's Relationship with Defendants
Plaintiff, a physician descended from the Dravidian language region of southern India, was employed by Jamaica Hospital pursuant to a contract, starting on or about March 9, 1994. (Doc. No. 58 in 05-CV-2894, Defs.' Summary Judgment 56.1 Statement of Facts ("Defs.' 56.1 in 05-CV-2894") ¶ 2 & Ex. A, Fifth Am. Compl. ¶ 7(a), (f) & Ex. E, Faculty Supervisor Contract.) In or about January 1995, plaintiff's employment with Jamaica Hospital was transferred to TJH Medical Services.*fn2
(Defs.' 56.1 in 05-CV-2894 ¶ 4 & Ex. A, Fifth Am. Compl. ¶ 7(d).) On December 31, 2004, plaintiff's employment with TJH Medical Services was terminated. (Doc. No. 31, Defs.' Summary Judgment 56.1 Statement of Facts ("Defs.' 56.1") ¶¶ 1-2 & Ex. A, Am. Compl. ¶ 8(a) & Ex. C, November 12, 2004 Termination Letter.) The termination letter specifically stated that, although plaintiff's "employment relationship will terminate on December 31, 2004[, his] Medical Staff privileges will not be curtailed." (Defs.' 56.1, Ex. C, November 12, 2004 Termination Letter.) Accordingly, during all relevant times, up to and including March 26, 2010, plaintiff continued to admit his internal medicine patients at Jamaica Hospital pursuant to his admitting privileges. (Tr. of 3/26/10 Oral Argument at 79-80; Defs.' 56.1 ¶ 1 & Ex. C, November 12, 2004 Termination Letter & Ex. M, November 28, 2005 Reappointment Letter.)
In response to defendants' termination of his "employment relationship," plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 16, 2005 (the "EEOC complaint") and, on June 16, 2005, brought suit in the Eastern District of New York, assigned docket number 05-CV-2894, alleging, inter alia, Title VII discrimination and retaliation claims based on his ethnicity, race and national origin (the "federal discrimination action" or "Deshpande v. TJH Medical Svcs., et. al, No. 05-CV-2894"). (Defs.' 56.1, Ex. A, Am. Compl. ¶ 8(b); see generally Defs.' 56.1 in 05-CV-2894, Ex. B, Compl.) Specifically, in the federal discrimination action, plaintiff alleged that he was discriminated against because he is from the Dravidian region of India, and that physicians from the Gujarat region of India were treated more favorably than he. (Defs.' 56.1 ¶ 15(a); see generally Defs.' 56.1 in 05-CV-2894, Ex. B, Compl.) Plaintiff also contended that he was retaliated against because he criticized what he perceived to be defendants' favoritism toward Gujarati physicians in the hospital, as well as the inadequate standard of care provided to patients there.*fn3 (See generally Defs.' 56.1 in 05-CV-2894, Ex. B, Compl.)
Plaintiff's instant complaint, filed January 25, 2007, alleges that the defendants retaliated against him for filing both his EEOC complaint and his federal discrimination action by renewing his admitting privileges for a one-year, rather than a two-year, period and by monitoring his interactions with the Hospital's residents. (Defs.' 56.1 ¶ 3 & Ex. A, Am. Compl. ¶ 8 (b), (h).)
II. The Alleged Retaliatory Action and the Resident Complaints
A. Renewal of Plaintiff's Admitting Privileges and the Imposition of a Monitoring Condition
The Hospital is obligated to evaluate the credentials of physicians who admit patients to the Hospital in accordance with New York State mandated privileging procedures, which require hospitals to "examine credentials of candidates for medical staff membership [hereinafter "privileges"] and make recommendations . . . on the appointment of candidates in accordance with the provisions of [10 NYCRR] and the New York Public Health Law." (Defs.' 56.1 ¶ 7 (quoting 10 NYCRR § 405.4(b)(4)).) After medical staff members are initially appointed, the medical staff must conduct "periodic reappraisals of its members, on at least, a biennial basis." (Defs.' 56.1 ¶ 7 (quoting 10 NYCRR § 405.4(b)(4)).)
In order for a physician to be re-accredited or to have his or her admitting privileges renewed at Jamaica Hospital, the physician must submit an application to the Hospital. (Defs.' 56.1 ¶ 8.) The Hospital's Office of Regulatory Affairs confirms that the application is complete, and forwards that application to the appropriate medical department for recommendation. (Defs.' 56.1 ¶ 8.) Once the medical department reviews the application and finds that the information and records are sufficient, the chairperson of the respective department recommends the application and forwards it to the Credentials Committee. (Defs.' 56.1 ¶ 8.) The Credentials Committee then reviews the application, discusses any pending issues, and determines whether to approve the application. (Defs.' 56.1 ¶ 8.) If the application is not approved, the Credentials Committee makes a determination as to how to proceed. (Defs.' 56.1 ¶ 8.) If the application is approved, it is then forwarded to the Medical Board, which reviews the Credentials Committee's approval and affirms it. (Defs.' 56.1 ¶ 8.) The Medical Board then sends the application for final approval to the Board of Trustees. (Defs.' 56.1 ¶ 8.)
Pursuant to the foregoing procedure, in June 2005, plaintiff was asked to reapply for his admitting privileges, and plaintiff did so on June 17, 2005.*fn4 (Defs.' 56.1 ¶ 9 & Ex. A, Am. Compl. ¶ 8(c); Doc No. 82 in 05-CV-2894, Pl.'s Aff. in Opp. ¶ 17.) After proceeding through the standard process outlined, supra, the Credentials Committee met on October 6, 2005 to address the applications of various practitioners, including plaintiff, against whom several medical residents had filed formal complaints. (Defs.' 56.1 ¶¶ 5, 10 & Ex. F.) The October 6, 2005 Credentials Committee Meeting Minutes contain the following under the heading, "VII. New Business, Name: Satish Deshpande, M.D., Department: Medicine":
At the request of the Chairman of the Department of Medicine, the committee was asked to review the reappointment application of this physician. Due to extenuating circumstances, the Department Chairman declined to take action on the reappointment. After discussion, it was agreed that the reappointment would be deferred with the recommendation that a letter be forwarded to the physician clarifying the hospital's philosophy, mission and Resident involvement relative to patient care.*fn5
(Defs.' 56.1, Ex. I, October 6, 2005 Credentials Committee Minutes at 3.)
Accordingly, on October 6, 2005, the Credentials Committee sent plaintiff a letter reiterating the hospital's "philosophy and mission relative to patient care . . . [which] includes close communication with Residents on a 24 hour per day, 7 day per week basis,"*fn6 asked him to sign the letter, indicating that he was in agreement with that philosophy and mission and further stated, "[i]f this process does not meet with your approval, we would recommend that you seek an institution which best suits your needs." (Defs.' 56.1 ¶ 12 & Ex. J, October 6, 2005 Letter; Doc No. 82 in 05-CV-2894, Pl.'s Aff. in Opp. ¶ 18.) Plaintiff signed the letter. (Defs.' 56.1 ¶ 12 & Ex. J, October 6, 2005 Letter & Ex. K, November 3, 2005 Credentials Committee Minutes at 3; Doc No. 82 in 05-CV-2894, Pl.'s Aff. in Opp. ¶ 18.)
The Credentials Committee met again on November 3, 2005. (See generally Defs.' 56.1, Ex. K, November 3, 2005 Credentials Committee Minutes.) During this meeting, the Committee acknowledged that it had received a signed letter from plaintiff "indicating his support of [Jamaica Hospital Medical Center's] philosophy and mission regarding patient care." (Defs.' 56.1, Ex. K, November 3, 2005 Credentials Committee Minutes at 3.) Thus, "[a]fter review and discussion, the Committee approved a one-year re-appointment to the medical staff. The Committee agreed that the physician should be advised that he will be monitored relative to the following activities: Residency supervision, professionalism and communication." (Defs.' 56.1, Ex. K, November 3, 2005 Credentials Committee Minutes at 3 (emphasis in original).)
Thereafter, on November 28, 2005, defendants sent plaintiff a letter, indicating that he had been reappointed to the Department of Medicine of Jamaica Hospital Medical Center "for a one-year period ending November 28, 2006 . . . with the rank of Attending," and enclosing a copy of his current Delineation of Privileges form. (Defs.' 56.1, Ex. M, November 28, 2005 Reappointment Letter & Ex. O, November 28, 2005 Approved Delineation of Privileges.) The letter specifically noted that the reappointment "is predicated on your agreement to support Jamaica Hospital Medical Center's philosophy and mission as specified in the letter dated October 6, 2005 from the Credentials Committee" and advised the plaintiff that his "professionalism, communication and Resident supervision will be monitored for consideration of the continuation of [his] reappointment." (Defs.' 56.1, Ex. M, November 28, 2005 Reappointment Letter; Doc No. 82 in 05-CV-2894, Pl.'s Aff. in Opp. ¶ 19.) The letter did not detail how plaintiff's "professionalism, communication and Resident supervision" would be "monitored." (See generally Defs.' 56.1, Ex. M, November 28, 2005 Reappointment Letter.)
Plaintiff sent a letter to defendant on December 15, 2005, expressing his disappointment with defendants' decision and asked to be reconsidered for a two-year term without monitoring. (Doc. No. 83, Pl.'s 56.1, Ex. 64, December 15, 2005 Letter.) Plaintiff alleges that he received no response. (Defs.' 56.1, Ex. A, Am. Comp. ¶ 8(g).)
B. The Resident Complaints
It is undisputed that there are five written complaints from six of the Hospital's residents, regarding plaintiff's supervision of them.*fn7 (Defs.' 56.1 ¶ 5 & Ex. F, Resident Complaints.) Specifically, the resident complaints state that Dr. Deshpande was overly negative, critical and insulting to the residents; that Dr. Deshpande would shout at the residents and act harshly and unprofessionally towards them; that Dr. Deshpande instructed a resident to perform a genital exam on a patient in a public hallway of the Hospital; that Dr. Deshpande mistreated the residents and accused them of not providing adequate patient care. (Defs.' 56.1 ¶ 5 & Ex. F, Resident Complaints.) The complaints are dated October 25, 2003, October 25, 2004, March 23, 2005, November 11, 2005 and December 22, 2005.*fn8 (Defs.' 56.1, Ex. F, Resident Complaints.)
Plaintiff does not dispute the existence or the content of these complaints, but instead argues that "three of the five complaints are dated in late 2005" and that it is "highly suspicious that three of the alleged five complaints were all written in such a close time proximity." (Doc. No. 83, Pl.'s 56.1 ¶ 5.) III. Defendants' Motion for Summary Judgment
Defendants move for summary judgment contending that:
(1) plaintiff's claims, which were dismissed on the merits in two state court decisions, are barred by res judicata; (2) plaintiff was not an "employee" of defendants during the time in question and is therefore precluded from sustaining employment retaliation claims under Title VII, the NYHRL and the NYCHRL; and (3) plaintiff has failed to proffer evidence to establish a prima facie case of retaliation under Title VII, the NYHRL and the NYCHRL, much less evidence to refute the defendants' legitimate business reasons for their employment actions. (Doc. No. 31, Defs.' Mem. at 2.)
I. Summary Judgment Standard
The court may grant summary judgment only "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c)(2). "[T]he 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). "A fact is 'material' for these purposes when it might affect the outcome of the suit under the governing law." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citation and internal quotation marks omitted). "An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citation and internal quotation marks omitted). Moreover, no genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
The moving party carries the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must construe the facts in the light most favorable to the nonmoving party and all reasonable inferences and ambiguities must be resolved against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). Nevertheless, the nonmoving party may not rest "merely on allegations or denials" but must instead "set out specific facts showing there is a genuine issue for trial." FED. R. CIV. P. 56(e)(2); see also Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) ("[M]ere speculation and conjecture [are] insufficient to preclude the granting of the motion.").
Defendants argue that plaintiff's claims for retaliation in the instant federal court action are barred by the doctrine of res judicata, also known as claim preclusion, because the retaliation claims arise out of the same facts asserted by plaintiff in two separate state court actions, both of which were dismissed - one on a motion to dismiss and one on a motion for summary judgment. (Defs.' 56.1 ¶¶ 15(b), (d); Defs.' Mem. at 4-6.) The court focuses on the second state court action, Deshpande v. Medisys Health Network, Inc., et. al, Index No. 29426/2007, which is more closely analogous as to the temporal period to the instant action.
A. The Federal and State Court Actions On January 25, 2007, plaintiff filed the instant action in the Eastern District of New York against Medisys Health Network, Inc., The Jamaica Hospital Medical Center, the Medical Staff of Jamaica Hospital Medical Center and David Rosen (the "federal court action"), alleging retaliation based on the filing of an EEOC complaint and the federal discrimination action, Deshpande v. TJH Medical Svcs., No. 05-CV-2894, also filed in the Eastern District of New York. (Defs.' 56.1, Ex. P, Compl. in 05-CV-2894.) The complaint was amended on May 4, 2007. (Defs.' 56.1, Ex. A, Am. Compl.) The factual assertions in the Amended Complaint in the federal court action cover the period between December 31, ...