The opinion of the court was delivered by: Friedman, J.
Melman v Montefiore Med. Ctr.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law Â§ 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISION First Judicial Department
David Friedman,J.P. Rolando T. Acosta Leland G. DeGrasse Rosalyn H. Richter, JJ.
Plaintiff appeals from an order of the Supreme Court, Bronx County (Mark Friedlander, J.), entered May 28, 2010, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff Arnold Melman, M.D., was hired as chairman of defendant Montefiore Medical Center's urology department in 1988, when he was 47 years old. In 2007, when he was 66, he commenced this action against Montefiore, asserting causes of action for age discrimination and retaliation in violation of the New York City Human Rights Law (Administrative Code of City of NY Â§ 8-107[a], Â§ 8-107)[*fn1]. Although plaintiff remains in his position as chairman of the urology department, he alleges that Montefiore has discriminated against him on the basis of his age, and has retaliated against him for protesting this discrimination, by compensating him at a rate unreasonably low for a physician of his professional attainments, limiting his control over his department, and otherwise treating him with perceived disrespect. He now appeals from Supreme Court's order granting Montefiore's post-discovery motion for summary judgment. For the reasons discussed below, we affirm.
In his opening brief, plaintiff states that his claims "should be analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)." The McDonnell Douglas framework has been adopted for use in discrimination actions brought under the respective Human Rights Laws of the State and City of New York (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 , citing Ferrante v American Lung Assn., 90 NY2d 623, 629-630 ). The New York City Human Rights Law (NYCHRL) was amended by the Local Civil Rights Restoration Act of 2005 (Local Law No. 85  of City of NY) (LCRRA) to clarify, among other things, that it should be construed, regardless of the construction given to comparable federal and state statutes, "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 ). However, neither the LCRRA nor the City Council report thereon (2005 NY City Legis Ann, at 536-539) sets forth a new framework for consideration of the sufficiency of proof of claims under the NYCHRL or indicates that the McDonnell Douglas framework is to be discarded.
In a recent decision that affirmed summary judgment dismissing a complaint, this Court held that an action brought under the NYCHRL must, on a motion for summary judgment, be analyzed both under the McDonnell Douglas framework and the somewhat different "mixed-motive" framework recognized in certain federal cases (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 41  [summary judgment dismissing a claim under the NYCHRL should be granted only if "no jury could find defendant liable under any of the evidentiary routes --- McDonnell Douglas, mixed motive, direct' evidence, or some combination thereof"]). Under Bennett, it is proper to grant summary judgment dismissing a claim under the NYCHRL only if the defendant demonstrates that it is entitled to summary judgment under both of these frameworks. Although plaintiff himself has not suggested that we analyze this case under a mixed-motive framework, in adherence to the holding of Bennett and to the aforementioned intent of the LCRRA that the NYCHRL be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio, 16 NY3d at 477-478), we will subject this action both to a McDonnell Douglas analysis and to a mixed-motive analysis. As described below, we believe that Montefiore -- like the defendant in Bennett -- is entitled to summary judgment under either analytic framework.
We turn first to an analysis of plaintiff's discrimination claim under the McDonnell Douglas framework, as the parties have presented the case to us. Under the McDonnell Douglas framework as applied in New York, a plaintiff alleging employment discrimination in violation of the NYCHRL "has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. In order to nevertheless succeed on [his] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" (Forrest, 3 NY3d at 305  [footnote, citations, and internal quotation marks omitted]). "Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff" (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 ).
In his brief, plaintiff summarizes his complaint against Montefiore as follows: "Melman was paid far less than his position and accomplishments warranted, while younger physicians were treated more favorably." In this regard, plaintiff (whose total compensation for 2008 was close to half a million dollars) complains that Montefiore denied his requests for raises, gave him inadequate raises, and awarded him insufficient bonuses. Plaintiff points out that Dr. Spencer Foreman, Montefiore's former president and CEO, admitted at his deposition that he told plaintiff in 2006 that "his compensation at Montefiore was below the level of others in comparable positions elsewhere." In support of the contention that "younger physicians were treated more favorably," plaintiff identifies one of his subordinates in the urology department (referred to hereinafter as RG), a physician 25 years younger than himself, who (at the very end of the period documented in the record) received total annual compensation exceeding plaintiff's [*fn2]. Plaintiff testified that, on one occasion, Montefiore acceded to RG's demand for an increase in compensation around the same time that the hospital denied plaintiff's request for a raise. Plaintiff further contends that a pattern of discrimination against older physicians can be discerned from a number of instances in which Montefiore "forced out" older departmental chairmen and replaced them with significantly younger physicians. Bearing in mind that, as previously noted, the LCRRA directs us to construe the NYCHRL "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio, 16 NY3d at 477-478; see Administrative Code Â§ 8-130), we assume that these circumstances surrounding the challenged adverse actions "giv[e] rise to an inference of discrimination" (Forrest, 3 NY3d at 305) so as to enable plaintiff to carry his "de minimis burden of showing a prima facie case of age discrimination" (Exxon Shipping Co. v New York State Div. of Human Rights, 303 AD2d 241, 241 , lv denied 100 NY2d 505 , citing Schwaller v Squire Sanders & Dempsey, 249 AD2d 195, 196 ).
Assuming, as we do, that plaintiff has established "the minimal prima facie case" (Broome v Keener, 236 AD2d 498, 499 ), the burden shifts to Montefiore to come forward with admissible evidence that it had "legitimate, independent, and nondiscriminatory reasons" (Forrest, 3 NY3d at 305) for taking the actions adverse to plaintiff for which he sues. As the dissent and plaintiff concede, Montefiore has sustained this burden.
Turning first to the issue of RG's compensation, it is undisputed that this physician's demands for increased compensation were granted because he was threatening to leave Montefiore if he were not given a raise. Indeed, plaintiff testified that he personally, out of a desire "to protect my faculty that I had hired," conveyed RG's salary demand to Foreman, warning that RG was "going to leave if we don't give him more money."[*fn3] The record shows that there was reason to believe that RG was not making an idle threat. Susan Green-Lorenzen, who was Montefiore's clinical vice president with operational responsibility for the urology department during the relevant period, states in her affidavit that RG is "the only surgeon in our employ who possesses the unique skill set to perform robotic prostate surgery and train future surgeons on robotic urology surgery."[*fn4] Green-Lorenzen further notes that, when RG's base salary was increased to $400,000 in 2006, "other robotic surgeons in the local area were compensated at a rate exceeding $500,000." Montefiore was "well within its rights in considering the marketplace value of [RG's] skills when determining his salary" (Kent v Papert Cos., 309 AD2d 234, 244 ).
Moreover, plaintiff's total compensation exceeded RG's in each year from 2004 through 2007. The record shows that (1) it was not until 2007 that RG's total compensation rose to within $100,000 of plaintiff's and (2) it was only at the end of 2008, the last year documented in the record, that RG's total compensation first exceeded plaintiff's [*fn5]. Aside from RG at the very end of the period for which we have evidence, plaintiff does not identify any subordinate of his (of any age) whose compensation exceeded his own. In fact, the record shows that plaintiff was paid more than each of his subordinates other than RG during the entire period from 2004 through 2008. During those five years, plaintiff's total annual compensation exceeded that of his highest-paid subordinate other than RG by an average of approximately $190,000.[*fn6]
Montefiore also set forth, through Green-Lorenzen's affidavit, the charges, collections, Relative Value Units (RVUs) (a metric used by Medicare) and operating room (OR) cases generated for the hospital by plaintiff's and RG's respective practices from 2004 through 2008. Montefiore uses these indicators in determining a physician's compensation. In each category, plaintiff's numbers declined or stayed the same through this period, while RG's increased. For example, plaintiff's RVUs decreased by 34% during this five-year period but RG's RVUs increased by 34%; plaintiff's OR cases stayed essentially the same throughout the period but RG's OR cases increased by 40%. By 2008, RG's figure for each indicator was substantially higher than plaintiff's.[*fn7]
Plaintiff also complains that, as Foreman told him in 2006, he was paid less than physicians in comparable positions at other institutions [*fn8]. In this regard, he highlights his own achievements as a clinician, researcher and administrator, asserting that his compensation was unreasonably low for a physician with such an exemplary record. However, even if we assume the accuracy of plaintiff's description of his achievements --- and ignore the failings set forth in Montefiore's submissions --- he does not discuss how his achievements compare with the achievements of chairmen of other departments at Montefiore or with the achievements of chairmen of comparable departments at other institutions. For example, plaintiff makes much of his personal, non-expert estimation that the urology department generated $228 million in revenue for Montefiore during his chairmanship from 1988 through 2008. Assuming that this estimate is accurate, it does not tell us whether the department was meeting expectations, over-performing, or under-performing. In this regard, Robert B. Conaty, Montefiore's executive vice president for operations, states in his affidavit: "In determining Dr. Melman's compensation, I did not ignore the money that the Urology Department contributed to Montefiore. It was expected that the Department would contribute that much money. Other departments generated as much and most generated more. Thus the fact that the Department generated money did not offset or excuse the issues with Dr. Melman's performance."
As noted in the above remark, Montefiore was entitled, in setting plaintiff's compensation, to consider the deficiencies of his performance as a departmental chairman, as well as his achievements. A number of the perceived deficiencies in plaintiff's performance that were considered in setting his compensation are set forth in a December 2005 internal memorandum directed to Conaty by Lynn Stansel, Esq., Montefiore's counsel for compliance. This memorandum, which was prepared long before plaintiff first complained of age discrimination, details, among other problems in the urology department, the following: (1) a complaint was filed with the State Division of Human Rights based on plaintiff's refusal to perform an elective operation on an HIV-positive patient;(2) Montefiore settled, for consideration of more than a half million dollars, a lawsuit by two former urology department physicians who alleged that plaintiff engaged in improper billing and then terminated them when they complained;(3) Montefiore had to repay $400,620 to HIP due to double-billing attributed to plaintiff's failure to oversee billing for a matter he had negotiated;(4) professional misconduct complaints against plaintiff were filed with the State Office of Professional Medical Conduct (OPMC), including one based on his alleged failure to diagnose cancer that was settled for several hundred thousand dollars and another alleging that he made inappropriate comments about a patient's penile deformity; and(5) deficiencies in plaintiff's medical record-keeping resulted in Montefiore's making a substantial repayment to Medicare, OPMC's issuance of warnings to plaintiff in 2003 and 2005 directing him to amend his practices to comply with New York State law, and Montefiore's placing plaintiff on medical review for a number of years. The December 2005 memorandum estimates that Montefiore paid out, on behalf of the urology department or plaintiff himself, a total of $1.5 million in reimbursements, penalties and liabilities arising from the matters described therein.
In addition, Montefiore documents that, from 2004 to 2006, the urology department's residency program --- of which plaintiff was director --- was placed on probation by the Residency Review Committee (RRC) of the Accreditation Council for Graduate Medical Education. The RRC had earlier warned that deficiencies in the program required correction. Even when the program was taken off ...