Rao v. Rodriguez et al

Filing 101

MEMORANDUM & ORDER, For the reasons stated above. Defendants' Motions for Summary Judgment (Dkts. 82, 91) are DENIED. The parties are DIRECTED to proceed with pretrial procedures, as specified in orders from the undersigned and Magistrate Judge Steven Tiscione. So Ordered by Judge Nicholas G. Garaufis on 3/30/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

DR. ADDAGADA C. RAO,
MEMORANDUM & ORDER

Plaintiff,

14-CV-1936(NGG)
(ST)

-against-

RAMON RODRIGUEZ and WYCKOFF HEIGHTS

MEDICAL CENTER,INC,
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

In this action, Plaintiff Dr. Addagada C. Rao asserts that Defendants Ramon Rodriguez

and Wyckoff Heights Medical Center, Inc.("WyckofP'), discriminated against him on the basis
ofrace, national origin, and age in violation offederal, state, and municipal law. (See Compl.
(Dkt. 1).) Defendants have jointly moved for summary judgment on all claims (the "Motions").
(See Wyckoff Mot. for Summ. J.(Dkt. 82); Rodriguez Mot. for Summ.J.(Dkt. 91)(joining in
WyckofFs motion); see also Mem.in Supp. of Wyckoff Mot. for Summ. J.("Wyckoff Mem.")
(Dkt. 83); Mem.in Supp. of Rodriguez Mot.for Summ. J.("Rodriguez Mem.")(Dkt. 93).) For
the reasons stated below. Defendants' Motions are DENIED.
I.

BACKGROUND

This section reviews the undisputed facts,^ followed by certain allegations that are in
dispute.^
'
Except as otherwise indicated, the undisputed facts are drawn from WyckofFs Statement of Undisputed Facts,
submitted pursuant to Local Civil Rule 56.1. (WyckoffRule 56.1 Statement("WyckofFR56.r')(Dkt. 85).)
Rodriguezjoins WyckofFs 56.1 Statement in full. (Rodriguez Rule 56.1 Statement(Dkt. 94)If 2.) The court's
summary omits reference to any fact or any descriptive language from WyckofFs 56.1 Statement that Plaintiff has
disputed. CSee PI. Rule 56.1 Statement(Dkt. 87).) Citations to the record are omitted.
^ The disputed allegations are drawn from Plaintiffs opposition papers. (PI. Opp'n to Defs.' Mots, for Summ. J.
("PL Opp'n")(Dkt. 88)). Citations to the record are omitted.
1

A. Undisputed Facts

Plaintiff"was employed as the Chairman of Wyckoffs Department of Surgery from 1988
until January 2012." (WyckoffRule 56.1 Statement("Wyckoff R56.1")(Dkt. 85)H 1.) "During
the time that Plaintiff was working for Wyckoff he also maintained a private practice"(the

"Rao PC"). (Id ^ 4.) Certain physicians were employed both by Wyckoffand by the Rao PC.

(Id Tin 5-6.) On or about December 23,2011, Rodriguez was appointed as Wyckoffs Chief
Executive Officer("CEO"). (Id p.)
1. Plaintiffs December 30. 2011. Letter

"Plaintiff wrote a letter dated December 30,2011 to Dr. Mounzer Tchelebi,[Wyckoffs]

Chief Medical Officer"(the "December 30 Letter"). (Wyckoff R56.1 ^ 7.) The Letter stated:"I
would like to step down as Chairman of Surgery. I am requesting that you form a search
committee for appointing a new Chairman. I will continue to be acting Chairman until you have
recruited an appropriate replacement." (Dec. 30,2011, Ltr.(Dkt. 84-6).)
2. Rodriguez's January 8. 2012. Email

On January 8,2012, Rodriguez directed his executive assistant to send an email on his
behalf"to the entire hospital" stating, in relevant part:

Almost a week ago,[Plaintiff] submitted his resignation as Chief of
Surgery. It is with great humbleness that I accept his decision....
It is no reflection on [Plaintiffs] many years of service that this
action is being taken, it is just for every time there is a season.
Eve asked Dr. Akella Chendrasekhar to assume the position of

Acting Chief of Surgery^ until such time that a Search Committee
has been formed and conclude their work with a recommendation of
a candidate.

(Jan. 8, 2012,Email(Draft)(Dkt. 84-7)(draft sent by Rodriguez to executive assistant); see also
Jan. 8,2012, Email(as Sent)(Dkt. 84-8)(substantially identical version sent from executive

' parties appear to use the terms "Chairman ofSurgery" and "Chiefof Surgery" interchangeably.
The
2

assistant to hospital staff); Wyckoff R56.1

9-11,13,) Chendrasekhar, who was appointed as

Acting Chief of Surgery,"is ofIndian descent." (Id. K 12.)
3. Subsequent Events

The next day, January 9, 2012,Plaintiff and Rodriguez both "attended a regular monthly
inter-departmental meeting ofthe various department chairpersons at Wyckoff.... At this

meeting[,]Rodriguez declared to the others present that [Plaintiff] had resigned as Chief of
Surgery on December 30,2011 and "announced that [Rodriguez] had appointed a new Acting
Chief of Surgery." (Wyckoff R56.1 ^ 17.) Plaintiff stated that he had not resigned, and

protested the appointment ofa new Acting Chief. (Id) Rodriguez then instructed Plaintiff to
leave the meeting, since he was no longer the Chief, and the meeting was for department heads
only. (Id)

Rodriguez sent emails to Wyckoffs Board ofTrustees on January 13 and 29,2012,
expressing concern that Plaintiff had been running a "closed shop" in the Wyckoff surgery
department by restricting entry to the surgical staff, and accusing Plaintiff of"removing" revenue
from Wyckoffto the Rao PC. (Id UK 18-19, 27-30.) Rodriguez also emphasized his view that
Plaintiff"was not let go," but rather that Plaintiff"resigned." (Id K 28.)
On January 15,2012, Acting Chief Chendrasekhar forwarded Rodriguez a letter from one
of Wyckoffs chief surgery residents (the "Surgery Resident Letter"). (Id K 20.) The letter

alleged "misconduct by Dr. Percy Erachshaw that occurred while Plaintiff was the Chairman of
the Department," and explained that the "residents have remained publicly silent about these
issues" because ofErachshaw's "close ties with [Plaintiff]." (Id KK 21-23; see also id K 5

(noting that Erachshaw was employed by the Rao PC in addition to working at Wyckoff).)

4. The January 17.2012. Notice of Termination

On January 17,2012, Wyckoff provided "notice oftermination" letters to both Plaintiff
and Erachsaw. (Id.

25,26.) Both terminations had an effective date of February 17, 2012.

m
B. Plaintiffs Additional Factual Allegations

"Plaintiff is ofIndian national origin,.. and his skin color is brown." (Pi. Opp'n to

Defs.' Mots,for Summ. J.("PI. Opp'n")(Dkt. 87)at 1.) Plaintiff"was 70 years old at the time
ofthe events at issue." (Id.') As ofDecember 2011, when Rodriguez became Wyckoffs CEO,

"Wyckoff had a mandatory retirement requirement in place for departmental chairpersons ...
when they reached the age of 75." (Id at 3.)
1. Erachshaw's December 29.201L Meeting with Rodriguez

The day before Plaintiffs December 30 Letter, Erachshaw met with Rodriguez and
allegedly had the following exchange:

Rodriguez stated to Erachshaw,"tell Dr. Rao to resign now, and if
he does not resign, I'll fire him." In response, Erachshaw stated that
Plaintiff is responsible for a high volume of surgeries at Wyckoff,
and asked,"what is this all about?" Rodriguez replied, "tell your
boss to look in the mirror. His face looks like an oyster shell."
Erachshaw commented that Plaintiff was 70 years old but possessed
high energy and personally performed about 300 surgeries a year.
Then Rodriguez referred to Plaintiff as "calcified." Erachshaw
asked him, "what are you talking about?" Rodriguez answered,
"well, there is a certain ethnic culture here and one of my jobs is to
change that."

(PI. Opp'n at 4(citing to Erachshaw's testimony and affidavit).) Defendants deny that
Rodriguez made these remarks. (Wyckoff Mem. at 9.)

Plaintiff alleges that"Erachshaw promptly discussed [this] conversation" with him.

(PI. Opp'n at 4.) That day and the following morning. Plaintiff and Erachshaw learned that

many hospital staff members believed that Rodriguez had fired Plaintiff, or intended to fire him
soon. (Id, at 5.)
2. Plaintiffs December 30. 2011. Letter

Plaintiff alleges that he put the December 30 Letter in a sealed envelope and left it in
Tchelebi's office. (PI. Opp'n at 7.) Plaintiff then called Tchelebi on his cell phone, recounted
Erachshaw's conversation with Rodriguez, and told Tchelebi about the December 30 Letter.

(Id.I "In response. Dr. Tchelebi informed [Plaintiff] that he intended to tear up the letter as soon
as he returned to his office the following week, because [Plaintiffs]job could not be terminated
by Mr. Rodriguez, only by the Board of Trustees." (Id)

Tchelebi contests these allegations. He testified that he was physically present at the
hospital on December 30,2011,and that he received Plaintiffs letter and gave it to Rodriguez

that same day. (Id.) He admits that he spoke to Plaintiff on the phone,"^ but offers a differing
account ofthe conversation: Tchelebi allegedly "informed Plaintiff that he had passed on

Plaintiffs letter to Rodriguez, before thanking him for his years of service." (Id at 8.) Plaintiff

responds that based on the available evidence—including E-Z Pass vehicle records and
Wyckoffs biometric "Timesheet" records—^Tchelebi was likely not in the hospital at any point
on December 30,2011, after Plaintiff allegedly placed the letter in his office. (Id at 9-10.)
3. Plaintiffs January 3. 2012. Meeting with Rodriguez

Plaintiff and Erachshaw met with Rodriguez together on January 3,2012, and allegedly
had the following exchange:
Plaintiffrepeatedly asked Rodriguez,"What is the problem?" while
pointing out that he (Plaintiff) was in very good health and that he
was doing "a great job here." However, Rodriguez... responded.

^ Tchelebi initially denied that he spoke with Plaintiff by telephone on December 30,2011, but he "later corrected
this statement... when confronted with his subpoenaed cell phone records." (PI. Opp'n at 7.)

"you're old. I want you out. Look at your face in the mirror. It
looks like an oyster shell. I want you out. This is it."
(PLOpp'natlO.)
4. Other Remarks Made bv Rodriguez

Plaintiff points to testimony from various Wyckoff doctors that, at various points in

January 2012, Rodriguez made comments about ridding the hospital of a so-called "Indian

Mafia" and "House of Arya." (PI. Opp'n at 12-14.) Defendants deny that Rodriguez made any
ofthese remarks. (Wyckoff Mem. at 9.)
"Dr. John Vemaleo, a former Wyckoff Chief of Infectious Diseases, testified that he was

present at a big meeting at Wyckoff of chairmen, directors, and attending physicians," at which
"Rodriguez complained about having been sued by Plaintiff... and openly referred to

Plaintiff... as a'brown monkey.'" (PI. Opp'n at 13.) Defendants contend that this "alleged
statement was made—at the earliest—in May 2013," more than a year after the events

surrounding Plaintiffs departure. (Wyckoff Reply(Dkt. 89)at 10.)
5. Wvckoffs New Chief of Surgery

Rodriguez allegedly hired Dr. Stephen Carryl in mid 2012 to become Wyckoffs new
Chief of Surgery. (PI. Opp'n at 2.) "Dr. Carryl is not ofIndian national origin/race." (Id
at 2 n.2.)
C. Plaintiffs Causes of Action

Plaintiff asserts the following causes of action(Compl.

97-135):^

• Discrimination on the basis ofrace against both Defendants under Section 1981 of
the Civil Rights Act of 1866,42 U.S.C. §§ 1981 et seq.: the New York State
Human Rights Law (the "State HRL"),N.Y. Exec. Law §§ 290 et seq.: and the

^ Plaintiff initially asserted an additional cause ofaction against Rodriguez under the New York Judiciary Law
(Compl.

136-141), but withdrew this claim in February 2016(see Feb. 18,2016, Order).

New York City Human Rights Law (the "City HRL"),N.Y.C. Admin. Code

§§ 8-107 etseq.:^
• Discrimination on the basis of national origin:

o Against both Defendants under the State HRL and the City HRL;
o Against Wyckoff under Title VII ofthe Civil Rights Act,42 U.S.C.
§§ 2000e et seq.:

• Discrimination on the basis of age:

o Against both Defendants under the State HRL and the City HRL;
o Against Wyckoff under the Age Discrimination in Employment Act
of 1967("ADEA"),29 U.S.C. §§ 621 etsea.:
• Claims that Rodriguez "aided, abetted, incited, compelled or coerced" the asserted
violations ofthe State HRL and the City HRL (the "Derivative HRL Claims").
II.

LEGAL STANDARDS

A. Summary Judgment

Summary judgment must be granted when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). "A

'material' fact is one capable of influencing the case's outcome under governing substantive law,
and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to find
for the party opposing the motion." Figueroa v. Mazza. 825 F.3d 89,98(2d Cir. 2016)(citing
Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242,248 (1986)).

"[T]he judge's function is not[ to weigh the evidence and determine the truth ofthe
]
matter but to determine whether there is a genuine issue for trial." Redd v. N.Y. Div. ofParole.
678 F.3d 166,173-74(2d Cir. 2012)(quoting Liberty Lobbv.477 U.S. at 249). In so doing,the
court must "resolve all ambiguities and draw all inferences in favor ofthe nonmovant."
Frederick v. United Bhd. of Carpenters. 665 F. App'x 31, 33(2d Cir. 2016)(summary order)

® The State HRL and the City HRL prohibit discrimination on the basis of both "race" and "color." N.Y. Exec. Law
§ 296; N.Y.C. Admin. Code § 8-107. Neither party has argued that the difference between "race" and "color" is
material in this case.

(citing Nationwide Life Ins. Co. v. Bankers Leasing Ass'n.. 182 F.3d 157,160(2d Cir. 1999)).

In short,"[sjummary judgment is appropriate '[wjhere the record taken as a whole could not lead
a rational trier offact to find for the non-moving party.'" Id at 33-34(quoting Matsushita Elec.
Indus. Co.. Ltd. v. Zenith Radio Corp.. 475 U.S. 574,587(1986)).
B. Employment Discrimination and the Burden ofProof

The court analyzes all ofPlaintiffs substantive discrimination claims imder the burdenshifting framework defined in McDonnell Douglas Corporation v. Green.411 U.S. 792(1973),

and its progeny.^ "Under these cases,the plaintiff bears the initial burden of establishing a prima
facie case of discrimination." Holcomb v. lona Coll.. 521 F.3d 130, 138(2d Cir. 2008)(citation
omitted). This burden "is not onerous." Tex. Dep't of Cmtv. Affairs v. Burdine,450 U.S. 248,

253(1981). A plaintiff need only show that "(1) he belonged to a protected class;(2)he was

qualified for the position he held;(3)he suffered an adverse employment action; and (4)that the
adverse employment action occurred under circumstances giving rise to an inference of

discriminatory intent." Brown v. Citv of Svracuse. 673 F.3d 141,150(2d Cir. 2012)(quoting
Holcomb.521 F.3d at 138).

Ifthe plaintiff successfully establishes a prima facie case,"the burden shifts to the
defendant to articulate 'some legitimate, non-discriminatory reason' for its action." Holcomb.
521 F.3d at 138(quoting McDonnell Douglas. 411 U.S. at 802).

' is clear that McDonnell Douglas governs claims under Title VII, Section 1981, and the State HRL. Brown v.
It
Citv ofSvracuse. 673 F.3d 141,150(2d Cir. 2012)(collecting cases). Plaintiff raises a question oflaw as to
whether McDonell Douglas governs all City HRL claims. (See PI. Opp'n at 25 n.4.) Plaintiff does not briefan
alternative legal standard, however. In any event,the court need not reach the issue. City HRL "claims are to be
reviewed more liberallv" than the equivalent federal standards, and "must be construed broadly in favor of plaintiffs
alleging discrimination." Johnson v. Andv Frain Servs.. Inc.. 638 F. App'x 68, 71 (2d Cir. 2016)
(summary order)
(emphasis added)(citing Loeffler v. Staten Island Univ. Hosp.. 582 F.3d 268,278(2d Cir. 2009); Nelson v. HSBC
Bank USA.929 N.Y.S.2d 259,262(N.Y. App. Div. 2011)). Because the court finds that Plaintiffs federal claims
and State HRL claims survive under the McDonnell Douglas framework. Plaintiffs City HRL claims necessarily
survive as well.

8

If such a reason is provided, plaintiff may no longer rely on the
presumption raised by the prima facie case, but may still prevail by
showing ...that the employer's determination was in fact the result
of racial discriniination. "The ultimate burden of persuading the
trier offact that the defendant intentionally discriminated against the
plaintiffremains at all times with the plaintiff."
Id.(quoting Burdine,450 U.S. at 253).

"[T]o defeat summaryjudgment" on claims of race and national origin discrimination, a
"plaintiff is not required to show that the employer's proffered reasons were false or played no
role in the employment decision, but only that they were not the only reasons and that the

prohibited factor was at least one ofthe motivating factors." Garcia v. Hartford Police Dep't
706 F.3d 120,127(2d Cir. 2013)(quoting Back v. Hastings on Hudson Union Free Sch. Dist.
365 F.3d 107,123(2d Cir. 2004)).

With regard to age discrimination claims under the ADEA,a plaintifffaces the heavier

burden of presenting a triable issue "as to whether [his] age was a 'but for' cause of[his]
termination." Delanev v. Bank of Am. Corp.. 766 F.3d 163,168(2d Cir. 2014)(emphasis

added)(alterations in original)(internal quotation marks and citation omitted); see also Gross v.
FBL Fin. Servs.. Inc.. 557 U.S. 167(2009)(eliminating the "mixed-motive" analysis as to

ADEA claims). Age discrimination claims under the City HRL do not require but-for causation.
See Velazco v. Columbus Citizens Found.. 778 F.3d 409,410-11 (2d Cir. 2015)(analyzing state
and federal case law). It is unclear whether age discrimination claims under the State HRL
follow the ADEA model. See, e.g.. Gorzvnski v. JetBlue Airways Corp.. 596 F.3d 93,105 n.6

(2d Cir. 2010). The court need not decide this question, however, because the court finds a
triable issue offact under the more stringent standard of but-for causation.

m.

DISCUSSION

Plaintiff claims that Defendants discriminated against him on the basis ofrace, national

origin, and age. Defendants move for summary judgment on all claims on the grounds that

(1)Plaintiff resigned, and so did not suffer an actionable "adverse employment action"; and
(2)even ifPlaintiff did suffer an adverse action, he fails to carry his burden under McDonnell
Douglas with regard to any protected characteristic. The court fmds that both arguments involve
genuine disputes of material fact, and therefore, that summary judgment must be denied.
Defendants do not challenge the Derivative HRL Claims except insofar as they contest

the underlying liability. CSee Rodriguez Mem. at 1-2.) Because the court denies summary
judgment on Plaintiff's substantive discrimination claims, the court also denies summary
judgment on the Derivative HRL Claims.
A. Adverse Employment Action

Defendants contend that Plaintiff"voluntarily resigned" in the December 30 Letter.

(WyckoffMem. at 6.) Defendants argue that "all [ofPlaintiffs] claims fail as a matter oflaw"
because he "cannot establish that he suffered an adverse employment action." (Id.) Plaintiff
counters that "there is a factual dispute as to whether the [December 30 Letter] was a resignation

letter in the first place, and if it was, whether such resignation was rescinded" during Plaintiffs

"conversation with Tchelebi" that same day.^ (PI. Opp'n at 27.)

'
Plaintiff also argues that, ifthe December 30 Letter is found to constitute a resignation, it was a coerced
resignation, and therefore constitutes an actionable constructive discharge. (PL Opp'n at 27-28.) The court need not
reach this issue, but notes that a constructive discharge claim would likely be procedurally barred in light of
Plaintiffs failure to include any such claim in his complaint before the Equal Opportunity Employment Commission
or in his complaint in this action. See Hodges v. Holder. 547 F. App'x 6,7(2d Cir. 2013)
(summary order)("[A]
plaintiff typically may raise in a district court complaint only those claims that either were included in or are
reasonably related to the allegations contained in [his] EEOC charge."(quoting Holtz v. Rockefeller & Co.. Inc..
258 F.3d 62, 83(2d Cir. 2001)); see also, e.g.. Petrisch v. HSBC Bank USA.Inc.. No.07-CV-3303(KAM)
(JMA),
2013 WL 1316712, at *10(E.D.N.Y. Mar. 28,2013)
("[A] party cannot amend her complaint simply by alleging
new facts and theories in her memorandum opposing summary judgment."(alterations, internal quotation marks,
and citation omitted)).
10

The court agrees with Plaintiffthat the December 30 Letter could reasonably be read as
stating PlaintifPs intention to "step down"in the near future, and requesting that the necessary
procedures be initiated to search for a replacement. fSee Dec, 30, 2011, Ltr.) Even ifRodriguez
received the Letter and interpreted it as a resignation, his dispute with Plaintiff at the
interdepartmental meeting on January 9,2012, provided notice that Plaintiff may not have
intended to resign. Nonetheless, Defendants proceeded with a formal termination on January 17,
2012.^

Drawing all reasonable inferences in Plaintiffs favor, the court finds a dispute offact as
to whether the December 30 Letter constituted a resignation, and, therefore, as to whether

Plaintiff suffered an adverse employment action.^® Defendants are not entitled to summary
judgment on this basis.
B. Evidence of Discrimination

Defendants argue that Rodriguez's alleged comments fail to show discriminatory intent
based on any ofPlaintiffs protected characteristics. (Wyckoff Mem. at 9.) They argue that
Plaintiff has failed to establish a prima facie case of discrimination based on race, national
origin, or age. CSee id. at 9-17.) Defendants further contend that Plaintiffs evidence is
insufficient to overcome Defendants' asserted non-discriminatory justifications: Rodriguez's

concerns about Plaintiffs role in the "closed shop" and the misconduct alleged in the Surgery
Resident Letter. (See id. at 17-20.)

' addition, the December 30 Letter stated Plaintiffs intention "continue to be acting Chairman" until "an
In
appropriate replacement" had been recruited. (Dec. 30,2011, Ltr.) Nonetheless, Chendrasekhar was immediately
instated as Acting Chief of Surgery pending a permanent replacement. That factor, too, may potentially contribute
to a finding ofan adverse employment action even prior to Plaintiffs formal termination.
In light ofthis finding, the court need not address the factual dispute concerning Tchelebi's whereabouts and
conversations on December 30,2011, or the legal dispute concerning an individual's ability to rescind a resignation.
(Compare PI. Mem. at 6-10,27, with WyckoffReply at 2-3.)
11

The court assumes, without deciding,that the parties have satisfied their burdens under

the first two steps of McDonnell Douglas, and therefore turns to question of whether Plaintiff has
raised any disputed issues of material fact under the applicable standard for each type of alleged
discrimination. The court acknowledges certain ambigxiities in Rodriguez's alleged remarks.
When resolving these ambiguities in Plaintiffs favor, however,the court finds that Plaintiff has
met his burden under McDonnell Douglas, and that summary judgment must therefore be denied.
1. Legal Standard

"[SJtray remarks, without more, cannot defeat summaryjudgment" on an employment
discrimination claim. Martinez v. N.Y. Citv Transit Auth.. — F. App'x —,2016 WL 7036823,

at *3(2d Cir. Dec. 2,2016)(citing Danzer v. Norden Svs.. Inc.. 151 F.3d 50,56(2d Cir. 1998)).
Courts in this jurisdiction consider the following four factors to determine "whether a remark is
probative" of discriminatory intent:

(1) who made the remark (i.e., a decision-maker, a supervisor, or a
low-level co-worker);

(2) when the remark was made in relation to the employment
decision at issue;

(3)the content of the remark (i.e., whether a reasonable juror could
view the remark as discriminatory); and
(4)the context in which the remark was made (i.e., whether it was
related to the decision-making process).
Henrv v. Wveth Pharm.. Inc.. 616 F.3d 134,149-50(2d Cir. 2010)(collecting cases).
2. Evidence of Discrimination Based on Race or National Origin

Rodriguez allegedly made several remarks that could be interpreted as describing
Plaintiffs brown skin, his Indian origin, or both. These remarks include:(1)saying on two
occasions that Plaintiffs face "looks like an oyster shell";(2)stating that "there is a certain
ethnic culture" at Wyckoff, and that"one of[Rodriguez's]jobs is to change that";(3)referring

12

to an alleged "Indian Mafia" and "House of Arya" among Wyckoffs medical staff; and
(4)referring to Plaintiff as a"brown monkey."

Turning to the Henry factors, the court notes that all four comments were allegedly made
by WyckofTs CEO,a key decision maker with regard to high-ranking medical offices. Other
than the "brown monkey" comment, all the alleged remarks were made within weeks of

Plaintiffs departure, and appear to have been directly "related to the decision-making process,"
Henry,616 F.3d at 149: Rodriguez allegedly made the "oyster shell" and "ethnic culture"
comments while explaining why he wanted Plaintiff to leave Wyckoff, and made the "Indian
Mafia" and "House of Arya" comments while discussing his more general desire to remove
certain individuals from Wyckoffs staff.

Defendants emphasize the third Henrv factor—"whether a reasonable juror could view
the remark as discriminatory"—and argue that the "oyster shell,""ethnic culture," and "House of
Arya" comments could be interpreted as referring neither to South Asian race nor to Indian
origin. (See Wyckoff Mem. at 9-15.) Indeed,the deponents in this case differed in their
understanding of what these comments were intended to convey. (See, e.g.. id at 10-11.) The
court acknowledges that certain individual comments may not have explicitly named a protected
characteristic. Nonetheless,the court recognizes its duty to "resolve all ambiguities and draw all
inferences" in Plaintiffs favor at this stage ofthe proceedings. Frederick. 665 F. App'x at 33

(citation omitted). Rodriguez's alleged remarks, assessed in the aggregate, could reasonably be

interpreted as evidence that Plaintiffs race or national origin were a "motivating factor[]" in
Rodriguez's employment decisions.

Garcia, 706 F.3d at 127.

"[C]laiins based on race and national origin "may substantially overlap or even be indistinguishable depending on
the specific facts ofa case." Vill. of Freenort v. Barrella. 814 F.3d 594,606(2d Cir. 2016)(footnote omitted).
13

The fact that Rodriguez instated an Indian physician as Acting Chief of Surgery does not
necessarily undermine this conclusion. "[T]he focus remains on whether the plaintiff Tost out
because of his [protected characteristicl."' See Ehrbar v. Forest Hills Hosp.. 131 F. Supp. 3d 5,

27(E.D.N.Y. 2015)fquoting O'Connor v. Consol. Coin Caterers Corp.. 517 U.S. 308,312
(1996)). If Plaintiff is correct that Defendants sought to reduce the overall number of physicians
of South Asian race or Indian origin at Wyckoff,then Defendants could have furthered that

discriminatory goal by terminating one member ofthe protected group and granting the newly

empty title to an existing employee from the same group. Consistent with that narrative. Plaintiff
alleges that the outside doctor ultimately chosen as the new permanent Chief of Surgery was not
ofIndian origin or race. (PI. Opp'n at 2 n.2.)

In addition. Plaintiff need not prove that Defendants' proffered non-discriminatory bases

were mere pretext for the adverse employment action. To defeat summary judgment.Plaintiff
need only show "that they were not the only reasons and that the prohibited factor was at least
one ofthe motivating factors." Garcia, 706 F.3d at 127(emphasis added)(citation omitted).
The court concludes that Defendants' Motions must be denied as to Plaintiffs' claims of

discrimination on the basis ofrace and national origin.
3. Evidence of Discrimination Based on Age

Plaintiffs claims of age discrimination survive as well, even after taking into account the

ADEA's heightened burden of but-for causation. Rodriguez allegedly said to Plaintiff: "You're
old. 1 want you out." Rodriguez also allegedly referred to Plaintiff as "calcified" when

explaining to Erachshaw why Rodriguez wanted Plaintiffto leave Wyckoff. Finally, the
comment that Plaintiffs face "looks like an oyster shell" could reasonably be interpreted as

referring to Plaintiffs apparent age as well as—or as opposed to—^the color of his skin.

14

"The condition that a plaintiffs age must be the 'but for' cause ofthe adverse

employment action is not equivalent to a requirement that age was the employers only
consideration, but rather that the adverse employment action would not have occurred without
it." Delanev. 766 F.3d at 169(internal quotation marks, alteration, and citation omitted).
Drawing all reasonable inferences in Plaintiffs favor, the court finds that Plaintiff has satisfied
this standard. Rodriguez's emails to the Board may have emphasized non-discriminatory
reasons for Plaintiffs departure, but when Erachshaw and Plaintiffinitially confronted him about
seeking Plaintiffs removal, Rodriguez explicitly referenced Plaintiffs age. In each interaction,
Rodriguez's alleged comment was "less a 'stray' remark than an open declaration of bias. It not
only reflected a highly discriminatory attitude, but also came at the time of the [adverse

employment action] and referred directly to [Plaintiffs] tenure with [Wyckofr]in negative
terms." Martinez. 2016 WL 7036823, at *3(assessing the alleged comment:"People who are
eligible to retire should retire and make room for the younger generation."). Plaintiffs age
discrimination claims therefore survive Defendants' Motions.
IV.

CONCLUSION

For the reasons stated above. Defendants' Motions for Summary Judgment(Dkts. 82, 91)

are DENIED. The parties are DIRECTED to proceed with pretrial procedures, as specified in
orders from the undersigned and Magistrate Judge Steven Tiscione.
SO ORDERED.

s/Nicholas G. Garaufis
Nl
IICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
March ^ 2017

15