Kaufman v. Columbia Memorial Physician Hospital Organization, Inc. et al
Filing
52
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 40 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment is GRANTED in part and DENIED in part; and the Court furtherORDERS that De fendants' motion for summary judgment on Plaintiff's age and disability discrimination claims is GRANTED; and the Court further ORDERS that Defendants' motion for summary judgment on Plaintiff's individual claimsagainst Defendants Cahalan and Chapin is GRANTED; and the Court furtherORDERS that Defendants' motion for summary judgment on Plaintiff's breach of contract claim is DENIED; and the Court further ORDERS that Defendants' motion for summary judgment on th eir unjust enrichment counterclaim is DENIED; and the Court further ORDERS that Defendants Cahalan and Chapin are DISMISSED from this action; and the Court further ORDERS that the parties' counsel shall be available for a telephone conference on March 4, 2014 at 10:00 a.m. to discuss setting a trial date; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 2/19/14. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
STEWART A. KAUFMAN, M.D.,
Plaintiff,
vs.
1:11-CV-667
(MAD/DRH)
THE COLUMBIA MEMORIAL HOSPITAL, d/b/a
COLUMBIA MEMORIAL HOSPITAL, JAY P.
CAHALAN, individually, and NORMAN A.
CHAPIN, M.D., individually,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
GLEASON, DUNN, WALSH & O’SHEA
40 Beaver Street
Albany, New York 1207
Attorneys for Plaintiff
RONALD G. DUNN, ESQ.
PETER N. SINCLAIR, ESQ.
GARFUNKEL WILD, P.C.
111 Great Neck Road
Great Neck, New York 11201
Attorneys for Defendants
ANDREW L. ZWERLING, ESQ.
JASON HSI, ESQ.
MARIANNE MONROY, ESQ.
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Stewart Kaufman, M.D. alleges that Defendants discriminated against him based
on his age in violation of the Age Discrimination and Employment Act of 1967, 29 U.S.C. §§
621- 634 ("ADEA") and the N.Y. Exec. Law § 296 ("New York State Human Rights Law" or
"NYSHRL") and further, that defendants discriminated against him on the basis of his disability
in violation of the Americans with Disabilities Act, ("ADA"), codified at 42 U.S.C. § 12101 et
seq. and the NYSHRL. See Dkt. No. 1. Currently before the Court is Defendants' motion for
summary judgment. Dkt. No. 40. For the reasons stated herein, Defendants' Motion for
Summary Judgment is granted in part and denied in part.
II. BACKGROUND
Plaintiff Kaufman is an orthopedic surgeon residing in Columbia County, New York.
Dkt. No. 46-19 ("Plf's Resp. to Defs' Stmt. of Mat. Facts") ¶¶ 1-2. Defendant Columbia Memorial
Hospital ("CMH") is a New York not-for-profit corporation. Id. ¶ 3. During the time period
relevant to Plaintiff's claims, Defendant Jay Cahalan was the Chief Operating Officer of CMH,
and Defendant Norman A. Chapin, M.D. was its Medical Director. Id. ¶¶ 4-5.
In his Amended Complaint, Plaintiff alleges that the following medical conditions qualify
as a disability under applicable law: endoscopic surgery on his left knee (1981); surgery to correct
bilateral cataracts (1985); back surgery on his L4-5 vertebrate disc to stabilize degenerative disc
disease and stenosis of the foramina ("Spinal Condition") (1996); splenectomy and chemotherapy
for small cell lymphoma (1997); laparotomy and chemotherapy for large cell lymphoma (2001);
back surgery on his L2-3 and L4-5 vertebrate discs to further stabilize the Spinal Condition
(2006); surgery to correct carpal tunnel syndrome (2009); and sleep apnea treated by a
Continuous Positive Airway Pressure ("CPAP") device (2009). Dkt. No. 4 ¶¶ 58-68; 98-100.
Prior to his employment at CMH, Plaintiff and his partner, Dr. Louis DiGiovanni,
practiced medicine through their own private orthopedic practice, Hudson Valley Orthopedic
Associates, P.C. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 15. Plaintiff and CMH entered into a
three-year employment agreement on June 6, 2008; Plaintiff was 66 years old at the time. Id. ¶
19. Dr. DiGiovanni also signed an employment contract with CMH, the length of which was five
years. Both Plaintiff and Dr. DiGiovanni were represented by any attorney, Joshua Levine,
2
during the negotiation of their employment agreements with CMH; Defendant Cahalan
represented CMH. Id. ¶ 17.
With respect to the length of his contract, Plaintiff testified:
Q: What did you do after you found out that Doctor DiGiovanni
according to you had a five year contract?
A: Nothing.
Q: Did you call up Josh Levine and say, hey, what's up?
A: No, because I thought that I was going to work for three years
and then I was going to do IME's [independent medical exams] and
settle out into some pasture somewhere, but obviously, that was not
the intention of the contract.
Q: So it was your thought to retire from the hospital after three
years anyway?
A: No. I was going to just pare back my practice significantly and
take care of some of the stuff that nobody else likes to do.
...
Q: But when you found out according to you during that time frame
that doctor DiGiovanni apparently had a five year contract, rather
than complain you just figured at the end of three years you would
just stop employment with the hospital and do IME's?
A: No, maybe still work for the hospital. I believe we were talking
about working for the hospital just as I said seeing patients that take
up a lot of time and don't really produce anything and need to be
seen.
Dkt. No. 40-21 ("Kaufman Dep.") at p. 145-46.
At the time he was hired, Plaintiff believed that each of the conditions he now claims
should be considered in determining whether he was disabled were known to CMH, except for
sleep apnea. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 31. Plaintiff's sleep apnea condition was
diagnosed and successfully treated in 2009 while Plaintiff was on leave from CMH. Id. ¶ 32.
3
Following the end of his employment at CMH, Plaintiff remained able to work, and continued to
do so by performing independent medical examinations. Id. ¶ 38.
On March 18, 2009, CMH officials met with Plaintiff to discuss his rate of revision for
total knee replacement surgeries. Id. ¶ 40. CMH officials presented Plaintiff with data which
purported to show by comparison that Plaintiff’s rate of revision was higher than his counterparts
at CMH. Dkt. No. 40-6. Plaintiff now contends that these data are misleading because he
performed a number of revisions on patients for whom he did not perform the original procedure.
Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 39. During that meeting, CMH also notified Plaintiff
that certain operating room staff members had reported that his focus and stamina in the operating
room was poor, and had made complaints about his performance during surgery. Id. ¶ 41.
Plaintiff was relieved of total knee replacement surgeries, and he agreed to undergo additional
training and review his prior cases with colleagues. Id. ¶ 43.
In or about July 2009, CMH officials met with Plaintiff to discuss the duration of two or
three of his hip surgeries, which they contended were longer than the national average. Id. ¶ 44.
Plaintiff now claims, upon information and belief, that other surgeons at CMH had hip surgeries
that were longer than the national average. Dkt. No. 46-1 ("Kaufman Decl.") ¶ 30. In or about
Spring 2009, Plaintiff ceased performing large joint surgeries. Plf's Resp. to Defs' Stmt. of Mat.
Facts ¶ 45.1
Later in July 2009, Plaintiff was referred by CMH to neuropsychologist Aaron Philip
Nelson, Ph.D for a neuropsychological examination. Dr. Nelson evaluated Plaintiff and issued a
report dated July 22, 2009. Dkt. No. 40-8 ("Nelson Report"). In his report, Dr. Nelson stated:
Defendants claim that Plaintiff voluntarily ceased these surgeries, while Plaintiff claims
he was coerced to do so by Defendants. Id.
1
4
I had the opportunity of seeing Stewart Kaufman for
Neuropsychology evaluation. As you know, he is a 67 year old
physician with a complex medical history referred due to concerns
regarding his capacity to continue to practice as an orthopedic
surgeon.
I reviewed the context of the evaluation with Dr. Kaufman at the
start of the interview. Specifically, I reviewed with him the fact
that I had been asked to perform this evaluation by his Medical
Director because of concerns that had been raised regarding his
ability to practice. I indicated that the evaluation was not occurring
as a part of his medical care. I also informed Dr. Kaufman that I
would be preparing a report and communicating directly with Dr.
Chapin regarding my findings and impression. Dr. Kaufman
indicated that he understood and accepted these conditions.
With regard to his understanding of how concerns regarding his
performance came about, Dr. Kaufman indicated that "somebody
suggested I have poor judgment." He mentioned a review of his
total knee replacement surgeries that revealed an elevated frequency
of re-do procedures. He subsequently learned that the technique he
had been utilizing had been out of favor in the surgical community.
He explained that he had not known that the technique had been
discontinued until the review occurred. A review of his total hip
replacement procedures indicated a longer than average surgical
time; he attributed this to the physically strenuous nature of the
procedure (and his back pain) and discontinued performing this
operation. He continues to treat hip fractures and take call. He also
continues to perform knee scope, shoulder scopes, carpal tunnel
surgery and other smaller scale cases that do not place as much of a
physical strain on his back. He estimates that he does 4-6 cases per
week. He tells me that he has 2 years remaining on his contract with
the hospital and that he is considering stepping back from
procedures altogether at that point, perhaps doing chart reviews etc
instead.
...
IMPRESSION: In summary, this is a 67 year old physician with a
complex medical history referred due to concerns regarding his
capacity to continue to practice as an orthopedic surgeon. Baseline
intellectual ability is estimated in the superior range. The
neuropsychological examination reveals variability in the sphere of
attention and executive function. Performance on measures of
simple attention span were in the average range; I suspect these
scores are considerably lower than his optimal baseline. He was
5
unable to contend with the WCST, a task entailing nonverbal
reasoning and responsivity to corrective feedback. He exhibited a
deficit in sustained attention on the Connors CPT and made errors
on tasks of response inhibition (Go/No Go) and complex motor
programming. Performance on measures of anterograde memory
was excellent with the exception of the RAVLT, a test entailing
learning and memory for a list of words. His learning curve was
quite shallow and he made a large number of within-trial
repetitions, again implicating problems with self-monitoring.
Performance on measures of manual motor speed and dexterity
were suggestive of diminished agility with the left hand. It is
certainly possible that the fine motor findings are related to a
chemotherapy-induced peripheral neuropathy.
The etiology of these findings is uncertain. He has certainly had a
rugged medical course over the past 12 years or so with bouts of
small and large-cell lymphoma, a stem cell transplant, prostate
surgery with complications, several spine surgeries, and a cardiac
arrhythmia. He has been treated with multiple cycles of CHOP
chemotherapy (cyclophosphamide, adriamycin, vincristine, and
prednisone) plus Rituxan. Although we do not know a lot about the
long-term effects of these drugs, there is reason to suspect that they
may convey some degree of neurotoxicity in addition to
cerebrovascular compromise through cardiac effects.
The overall topography of the examination implicates frontal /
subcortical brain systems and is commonly seen in a setting of
ischemic vascular disease. He has never had a brain imaging study
to my knowledge so I have no basis for making this diagnosis in
anything more than a speculative fashion. To be thorough, these
findings can also be seen in a context of depression, adverse
medication side effects, or in any setting in which attentional
systems are undermined. I should add that there is no history of
depression (per his report) and he flatly denies current symptoms
along these lines as indicated by his score of zero on the BDI-II.
Regardless of the basis, these findings are concerning with respect
to Dr. Kaufman's ability to sustain attention and focus over
extended periods of time. To the extent that his work involves this
type of sustained concentration, the examination does have adverse
implications for his current capacity to practice. It is my opinion
that his practice should be closely monitored at this time.
Id.
6
On August 10, 2009, Plaintiff met with CMH officials to discuss the Nelson Report.
During this meeting, Plaintiff was informed that he should take a leave of absence until CMH
received the results of the recommended follow-up consultation and confirmation that he was
successfully treated for any conditions affecting his performance. Plf's Resp. to Defs' Stmt. of
Mat. Facts ¶ 55. Plaintiff requested that his practice be monitored, as suggested by Dr. Nelson,
rather than take a leave of absence. Id. While on leave, CMH paid Plaintiff $37,000 in vacation
and paid benefit time credits. Id. ¶ 56.
Plaintiff and CMH officials met again on August 24, 2009, to discuss questions
concerning Dr. Nelson's report. Thereafter, Defendant Chapin emailed Dr. Nelson, with a copy to
Plaintiff, to raise these clarifying questions. Dr. Nelson wrote an email dated August 25, 2009, to
further explain his findings:
In terms of extended periods of time, the concerns arising from my
findings relate to both attentional focus within the moment and
across the day. What I mean is that your performance on testing
raised concerns about your ability to mount and sustain effective
attention to a task at hand. In addition, we know that fatigue will
amplify this type of problem over the course of hours or a day. This
is why I recommended close monitoring of your practice. In terms
of the specifics of this monitoring, I expect this would be a process
devised by your clinical chief in which you would be directly
observed at work until your chief was confident that you were
performing acceptably. I cannot parse it any finer than this and I
can only say that this was my recommendation.
Dkt. No. 40-9.
On August 26, 2009, Plaintiff's own physician, Albert M. Galaburda, M.D. diagnosed
Plaintiff with mild microvascualar change in the brain.
Plf's Resp. to Defs' Stmt. of Mat. Facts ¶
57. In an August 27, 2009, follow-up email exchange, Plaintiff raised several questions to which
Dr. Galaburda provided the following responses:
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[Q:] Is my MRI consistent with my age and considered WNL
[within normal limits] in that context or could it contribute to my
current attention problem?
[A:] NO. YOU HAVE MICROVASCULAR DISEASE, NOT
SEVERE, BUT IN COMBINATION WITH OTHER FACTORS IT
COULD MAKE YOU MORE VULNERABLE TO HAVE
COGNITIVE CHANGES.
...
[Q:] Between now and our next visit, would you think that I should
be able to see patients in the office? The way this happens is as
follows: visits of five to ten minutes where the findings are
recorded on a template. I would not operate.
[A:] I DO NOT THINK YOU SHOULD PRACTICE MEDICINE
OF ANY TYPE UNTIL WE GET THE RESULTS OF THE SLEEP
EVALUATION, FIND OUT WHETHER YOU DO HAVE
APNEA OR OTHER SLEEP ABNORMALITY, AND SEE
WHETHER YOUR OXYGEN DESATURATES DURING SLEEP.
Dkt. No. 40-32.
At an August 28, 2009, meeting attended by Plaintiff, his wife, Defendant Cahalan and
Defendant Chapin, CMH continued to insist that Plaintiff pursue the follow-up neurological
testing recommended by Dr. Nelson. CMH expressed its concerns that in light of the prior
concerns expressed by CMH staff regarding Plaintiff's performance, the Nelson Report, and a
recent "biceps tendon case," permitting Plaintiff to resume his practice could expose CMH to
liability. Plaintiff requested that CMH permit a physician's assistant to supervise his work, as
suggested by Dr. Nelson. Cahalan and Chapin stated that CMH would be unwilling to make such
an accommodation. They also indicated to Plaintiff that his contract could be terminated if CMH
determined that Plaintiff "could be a danger to himself or others or a hospital patient." Dkt. No.
40-38.
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In September 2009, Plaintiff was referred by Dr. Galaburda to Jacqueline Chang, M.D.,
who diagnosed Plaintiff with severe obstructive sleep apnea and began treatment with a CPAP
device. Dkt. Nos. 40-33; 40-34; 40-35. On December 3, 2009, Plaintiff had another appointment
with Dr. Galaburda, during which Dr. Galaburda noted that, as a result of the CPAP treatment:
[h]e states that he is much more rested. Previously, he’d fall asleep
in the car as a passenger, and could not read more that [sic] a few
minutes without falling asleep. He did not fall asleep during the
whole ride from NY State [to Boston] and now he can read for
hours. . . .
He claims that now that his sleep apnea is treated, he should be
allowed to see medical type patients, and he agrees that he does not
have to do surgery. However, when he describes what the job
entails, what the responsibilities are, and what the cognitive
challenges are in seeing patients in the office, he doesn’t seem to
understand them. . . .
We have a long conversation about his options. I recommend that
he wait 2-3 more months and repeat the NP evaluation with Dr.
Nelson at BWH, who did his initial evaluation. He will continue to
be followed by the Sleep Unit and continue to use the CPAP
machine. Even though he is reporting a good result, he tends to
minimize his symptoms and will need to have some objective
measure of his sleep apnea with treatment. I will see him again in
two months, but I do not recommend that he go back to work as a
doctor now.
Dkt. No. 40-35. At no time prior to his termination did Plaintiff inform CMH of the results of Dr.
Chang's and Dr. Galaburda's diagnoses and impressions. Kaufman Dep. at p. 62-63; 66-67; 7273.
Plaintiff’s Medical Staff privileges at CMH were due to be renewed in November 2009.
Plaintiff did not reapply for those privileges during November and they expired on November 30,
2009. Plaintiff requested an "extension" of that deadline, to which CMH responded that it was
unable to do under the Medical Staff By-Laws, and further stated that any application for such
privileges would be subject to the same review process that was in place for Plaintiff's
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reinstatement. That is, CMH insisted that Plaintiff seek evaluation from a neurologist, as
recommended by Dr. Nelson, and any necessary treatment. Dkt. No. 40-17. In an email to CMH
officials, Plaintiff recognized that such application would only be accepted by CMH following
satisfactory consultation with a neurologist: "Please send me the necessary packet, I will complete
it and send it back, pending the result of my appointment with the neurologist, after my
recuperation." Dkt. No. 40-14.
In November and December 2009, Plaintiff requested that CMH accommodate him by
allowing one-on-one monitoring by a third-party orthopedist. Dkt. No. 40-15. In response,
Defendant Cahalan stated that what Dr. Nelson had recommended "was proximate supervision
similar to that which would be provided to a 'resident.' The scenario you described seemed more
like a check off of competencies and does not address the concerns we have. In any event, we do
not view the use of a monitor as a practical, feasible or acceptable solution." Dkt. No. 40-16.
On January 18, 2010, Plaintiff submitted a re-application for Staff Privileges at CMH.
Dkt. Nos. 40-18; 40-19. At that time, Plaintiff had not provided any records reflecting a followup medical assessment, as recommended by Dr. Nelson and as required by CMH.
Pursuant to Plaintiff's Employment Agreement with CMH, his employment could be
"terminated without prior written notice at any time by the Hospital for just cause, including, but
not limited to: . . . (ii) A termination, suspension or non-renewal of your medical staff privileges
at the Hospital in accordance with the medical staff bylaws, rules and regulations and policies of
the Hospital. . . . (viii) Other conduct which in the fair and reasonable opinion of the President
(or designee(s) of the Hospital) is such as to create a threat to the health, safety or welfare of
patients, demonstrates a failure to carry out your professional responsibilities hereunder, or is
10
otherwise contrary to the best interest and welfare of the Hospital and its patients." Dkt. No. 40-4
("Employment Agreement") § 11.
By letter dated January 27, 2010, CMH terminated Plaintiff. The termination letter stated,
in pertinent part:
This letter will serve as formal notice that [CMH] has elected to
exercise its right to terminate your employment with the Hospital
pursuant to Sections 11(b)(ii) and 11(b)(viii) of the Agreement.
As you are aware, you failed to reapply to renew your membership
in the Hospital’s Medical Staff. In addition, you have failed to
provide the Hospital with a follow up medical assessment
satisfactory to the Hospital, despite several requests by the Hospital.
Therefore, in accordance with the terms of the Agreement, your
employment by the Hospital shall terminate effective the date of
this letter. As discussed, your medical staff membership and
privileges previously lapsed and, in any event, terminate
concurrently with the Agreement. There is no unpaid compensation
due to you.
Dkt. No. 40-19.
Thereafter, Plaintiff exhausted his administrative remedies with the EEOC and NYHRC,
and subsequently filed the instant lawsuit.
III. DISCUSSION
A.
Summary Judgment Standard
A court may grant a motion for summary judgment only if it "determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion,
the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'"
Id. at 36-37 (citation omitted). Moreover, it is well-settled that a party opposing a motion for
11
summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (citing Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
B.
Summary Judgment Standards for Employment Discrimination Cases
Courts are cautious in granting summary judgment in employment discrimination cases
where the employer's intent is at issue, Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008),
"because direct evidence of an employer's discriminatory intent is rare and 'must often be inferred
from circumstantial evidence.'" Serby v. New York City Dep't of Educ., No. 09-CV-2727, 2012
WL 928194, *5 (E.D.N.Y. Mar. 19, 2012) (quoting Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 603 (2d Cir. 2006)). However, "'[s]ummary judgment is appropriate even in
discrimination cases, for . . . the salutary purposes of summary judgment – avoiding protracted,
expensive and harassing trials – apply no less to discrimination cases than to other areas of
litigation.'" Hongyan Lu v. Chase Inv. Servs. Corp., 412 Fed. Appx. 413, 415 (2d Cir. 2011)
(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), superseded by statute on
12
other grounds as stated in Ochei v. Coler/Goldwater Mem'l Hosp., 450 F. Supp. 2d 275, 282
(S.D.N.Y. 2006)). Indeed, "'[i]t is now beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases.'" Feingold v. New York, 366 F.3d 138,
149 (2d Cir. 2004) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001)). Furthermore, "[e]ven in the discrimination context . . . a plaintiff must provide more than
conclusory allegations to resist a motion for summary judgment." Holcomb, 521 F.3d at 137
(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). A "nonmoving party 'must offer some
hard evidence showing that its version of the events is not wholly fanciful.'" Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting D'Amico v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998)). "If the evidence [presented by the non-moving party] is merely colorable, or
is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The Second Circuit has held that:
In discrimination cases, the inquiry into whether the plaintiff's sex
(or race, etc.) caused the conduct at issue often requires an
assessment of individuals' motivations and state of mind, matters
that call for a sparing use of the summary judgment device because
of juries' special advantages over judges in this area. Nonetheless,
an employment discrimination plaintiff faced with a properly
supported summary judgment motion must do more than simply
show that there is some metaphysical doubt as to the material facts.
She must come forth with evidence sufficient to allow a reasonable
jury to find in her favor.
Brown v. Henderson, 257 F.3d 246, 251-52 (2d Cir. 2001) (citations and quotations omitted).
"[S]ummary judgment may not be granted simply because the court believes that the
plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a
lack of evidence in support of the plaintiff's position, or the evidence must be so overwhelmingly
tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden
Sys. Inc., 151 F.3d 50, 54 (2d Cir. 1998) (internal citations omitted). "Nonetheless, when an
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employer provides convincing evidence to explain its conduct and the plaintiff's argument
consists of purely conclusory allegations of discrimination, the Court may conclude that no
material issue of fact exists and it may grant summary judgment to the employer." Walder v.
White Plains Bd. of Educ., 738 F. Supp. 2d 483, 493 (S.D.N.Y. 2010) (citation omitted); see also
Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997) (same); Meloff v. N.Y. Life Ins.
Co., 51 F.3d 372, 375 (2d Cir. 1995) (same).
C.
The McDonnell Douglas Standard
Each of Plaintiff's claims are evaluated pursuant to the burden-shifting analysis articulated
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Ben-Levy v. Bloomberg,
L.P., 518 Fed. Appx. 17, 18-19 (2d Cir. 2013); see also Holowecki v. Federal Exp. Corp., 382
Fed. Appx. 42, 45 n.2 (2d Cir. 2010) (applying McDonnell Douglas to ADEA discrimination
claims); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105-06 (2d Cir. 2010) (applying
McDonnell Douglas to ADEA and NYSHRL discrimination claims); McBride v. BIC Consumer
Products Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (applying McDonnell Douglas to ADA
discrimination claims); Kemp v. Metro-North R.R., 316 Fed. Appx. 25, 26-27 (2d Cir. 2009)
(applying McDonnell Douglas to ADA and NYSHRL discrimination claims).
Under McDonnell Douglas, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. 411 U.S. at 802,
93 S.Ct. 1817. If the plaintiff does so, the burden shifts to the
defendant to articulate "some legitimate, nondiscriminatory reason"
for its action. Id. Once such a reason is provided, the plaintiff can
no longer rely on the prima facie case, but may still prevail if she
can show that the employer's determination was in fact the result of
discrimination.
Gorzynski, 596 F.3d at 106. To rebut the articulated justification for the adverse action, "the
plaintiff must show both that the reason was false, and that discrimination was the real reason."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 n.4 (1993) (internal quotations omitted). This
14
burden-shifting analysis informs the ultimate determination of whether the evidence reasonably
supports an inference of the facts plaintiff must prove. James v. New York Racing Ass'n, 233 F.3d
149, 157 (2d Cir. 2000).
Following the Supreme Court's decision in Gross v. FBL Financial Services, 557 U.S. 167
(2009), "'a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a
preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse
employment action' and not just a contributing or motivating factor." Gorzynski, 596 F.3d at 106
(quoting Gross, 557 U.S. at 180). However, the Gross "but-for" standard does not apply to the
ADA and NYSHRL disability discrimination claims. Second Circuit precedent prior to Gross
held that a plaintiff may raise a triable issue of pretext based on a "mixed-motive" theory – that
disability discrimination was a "motivating factor" of plaintiff's termination. Parker v. Columbia
Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000). Recent decisions have confirmed that
different standards apply to the pretext inquiry for ADEA and ADA claims. See e.g., Ben-Levy v.
Bloomberg, L.P., 518 Fed. Appx. 17, 18 n.1 (2d Cir. 2013) (noting that different standards apply
to ADA and ADEA claims but finding that such difference was not pertinent to the outcome in
the instant case); Najjar v. Mirecki, No. 11 Civ. 5138, 2013 WL 3306777, *7 n.5 (S.D.N.Y. July
2, 2013) (observing that "no Second Circuit case has applied Gross to ADA claims" and declining
to do so sua sponte).
C.
Analysis
Defendants argue that Plaintiff cannot establish a prima facie case for either his disability
or his age discrimination claims and, in any event, he cannot establish that Defendants' nondiscriminatory justifications for their actions were pretextual. Defendants also argue that Plaintiff
cannot establish liability as to individual Defendants Cahalan and Chapin. Defendants next
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contend that Plaintiff's breach of contract claim based upon CMH's alleged failure to abide by the
Medical Staff By-Laws lacks merit and is time-barred. Finally, Defendants seek summary
judgment on their unjust enrichment counterclaim.
1.
ADA and NYSHRL Disability Discrimination Claims
In order to make out a prima facie case of disability discrimination, the plaintiff must
demonstrate that
(1) the defendant is covered by the ADA; (2) plaintiff suffers from
or is regarded as suffering from a disability within the meaning of
the ADA; (3) plaintiff was qualified to perform the essential
functions of the job, with or without reasonable accommodation;
and (4) plaintiff suffered an adverse employment action because of
his disability or perceived disability.
Kinneary v. City of New York, 601 F.3d 151, 156 (2d Cir. 2010) (quoting Capobianco v. City of
New York, 422 F.3d 47, 56 (2d. Cir. 2005)). "The elements of a prima facie case for
discrimination prohibited by the NYSHRL are the same as a claim under the ADA[.]" Starr v.
Time Warner, Inc., No. 07 Civ. 5871, 2007 WL 4144627, *6 (S.D.N.Y. Nov. 21, 2007).
With respect to Plaintiff's burden to show a prima facie case of disability discrimination,
Defendants first argue that Plaintiff is not disabled within the meaning of the ADA. The ADA
defines "disability" as: "A) a physical or mental impairment that substantially limits one or more
of the major life activities of [an] individual; B) a record of such an impairment; or C) being
regarded as having such an impairment." 42 U.S.C. § 12102(1). Defendants contend that
Plaintiff cannot establish that he is disabled under any of these provisions.
Under the ADA, "major life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42
U.S.C. § 12102(2)(A). "An individual meets the requirement of 'being regarded as having such
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an impairment' if the individual establishes that he or she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. §
12102(3)(A).
Having reviewed the record, the Court finds that there is evidence substantiating a number
of impairments, which Plaintiff claims limits one or more of his major life activities, sufficient to
raise a question of fact with respect to this issue. Indeed, Defendants themselves assert elsewhere
that one or more of these impairments (e.g., the Spinal Condition and/or sleep apnea) affected
Plaintiff’s capacity for endurance, concentration, thinking, and working. Thus, it is clear that a
reasonable jury could conclude that Plaintiff was disabled within the meaning of the ADA and
NYSHRL.
Defendants next argue that Plaintiff was not otherwise qualified to perform the essential
functions of his job as an orthopedic surgeon. In order to make this determination, the Court must
conduct a two-part analysis. First, it must be determined "whether the plaintiff can perform the
essential functions of a particular job despite his handicap, and if not, whether the employer could
reasonably accommodate the employee so that he could perform the essential functions despite
his handicap." Husowitz v. Runyon, 942 F. Supp. 822, 833 (E.D.N.Y. 1996).
"A disabled individual is not 'otherwise qualified' for a particular employment position if
such individual poses a 'direct threat' to the health or safety of others which cannot be eliminated
by a reasonable accommodation." Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 233
(W.D.N.Y. 1997) (citing Altman v. N.Y.C. Health and Hosps. Corp. 903 F. Supp. 503 (S.D.N.Y.
1995), aff’d, 100 F.3d 1054 (2d Cir. 1996)).
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As an initial matter, the Court notes that neither Defendants nor Plaintiff have presented
evidence or argument regarding what the essential functions of Plaintiff's job were as an
orthopedic surgeon CMH. Thus, it is impossible for the Court to determine whether Plaintiff
could perform those functions, with or without reasonable accommodation. Nevertheless, the
Court is persuaded that a substantial question of fact exists regarding whether Plaintiff was
otherwise qualified. Most importantly, the Court notes (as Defendants have pointed out) that
Plaintiff continued to perform independent medical examinations following his termination by
CMH through his private practice.
In addition, there is evidence in the record that Plaintiff repeatedly requested the
accommodation, as recommended by Dr. Nelson, of having his practice monitored. While
Defendants argue that such an accommodation would not have been reasonable under the
circumstances, it appears that Plaintiff's requests were never seriously considered by CMH and, in
any event, whether such accommodations were reasonable or would impose undue hardship on
CMH is a question for a jury to decide.
With respect to the last step of Plaintiff's prima facie case, Defendants do not contest that
Plaintiff suffered an adverse employment action. Defendants argue that Plaintiff failed to show
that he suffered an adverse employment action because of his disability. More specifically,
Defendants argue that Plaintiff has not met his burden because he has made only conclusory,
unsupported assertions regarding his disparate treatment, as compared to other non-disabled
doctors. Moreover, Plaintiff has admitted that CMH was aware of each of his medical conditions
at the time it hired him, except for the sleep apnea condition, which was diagnosed and
successfully treated while Plaintiff was on leave from CMH.
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"In order to meet this burden a plaintiff must introduce sufficient evidence showing that
she was terminated under circumstances giving rise to an inference of discriminatory intent."
Mines v. City of New York/DHS, No. 11 CV 7886, 2013 WL 5904067, *10 (S.D.N.Y. Nov. 4,
2013). "Discriminatory intent may be inferred from the totality of the circumstances, including . .
. the historical background of the decision . . . ; the specific sequence of events leading up to the
challenged decision . . . ; [and] contemporary statements by members of the decisionmaking
body." Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002)
(citation omitted). In establishing a prima facie case under the ADA, the plaintiff cannot rely
solely on conclusory allegations of discrimination without any concrete evidence to support her
claims. See Cameron v. Cmty. Aid for Retarded Children, 335 F.3d 60, 63 (2d Cir. 2003).
To meet his burden on this issue, Plaintiff here asserts that the "timing and context" of
Defendants' actions demonstrate discriminatory intent, that Defendants treated Plaintiff
differently than other non-disabled physicians, that Defendants believed that Plaintiff suffered
from a cognitive impairment which posed a risk to his patients, and that Defendants hired a
replacement physician who was not disabled. The Court has carefully reviewed the record and
finds that each of these assertions are conclusory and unsupported by concrete evidence. Plaintiff
has offered no explanation of how the timing and context of Defendants' actions give rise to
discriminatory intent. Moreover, despite extensive discovery, Plaintiff also fails to specifically
identify any non-disabled, similarly situated physicians who were treated differently than him, or
that were hired by CMH after his termination.
The Court is also unpersuaded by Plaintiff's argument that Defendants' stated position that
they were concerned Plaintiff's impairments could result in risk of harm to his patients gives rise
to an inference of discrimination. If anything, this statement militates against an inference of
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discrimination and toward a finding that Defendants had legitimate concerns regarding Plaintiff's
capacity to continue practicing as an orthopedic surgeon. For the foregoing reasons, the Court
finds that Plaintiff has failed to meet his burden of proof on this issue, and thus, has not made out
a prima facie case on his disability discrimination claims. Accordingly, Defendants motion for
summary judgment on Plaintiff’s disability discrimination claims is granted.
2.
ADEA and NYSHRL Age Discrimination Claims
"In order to establish a prima facie case of age discrimination, [a plaintiff] must show (1)
that she was within the protected age group, (2) that she was qualified for the position, (3) that
she experienced adverse employment action, and (4) that such action occurred under
circumstances giving rise to an inference of discrimination." Gorzynski, 596 F.3d at 107 (citation
omitted).
Plaintiff claims that he was discriminated against by CMH by giving him an employment
agreement that was shorter than those given to his younger peers, placing him on paid leave,
denying his application for Medical Staff privileges, and terminating his employment.
With respect to Plaintiff's burden to show a prima facie case of age discrimination,
Defendants make several of the same arguments made in support of dismissal of his disability
discrimination claims. First, Defendants argue that Plaintiff was not otherwise qualified for his
position. For the reasons discussed above, a substantial question of fact exists with respect to this
issue.
Defendants also argue that Plaintiff has failed to meet his burden of demonstrating
circumstances giving rise to an inference of discrimination. In response, Plaintiff makes many of
the same conclusory arguments already rejected by the Court with respect to his disability
discrimination claims. However, Plaintiff does point to an additional set of factual circumstances
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unique to his age discrimination claim. Plaintiff argues that the fact that he was offered a threeyear contract by CMH at the same time that it offered his younger partner Dr. DiGiovanni a fiveyear contract gives rise to an inference of discrimination. Although Defendants contend that they
had legitimate reasons for this decision, those contentions are not appropriately considered at this
stage of the analysis. For now, Plaintiff has adduced facts sufficient for a reasonable jury to
conclude that he was offered a shorter-term contract than his younger counterpart because of
CMH’s age discrimination. Accordingly, Plaintiff has met his prima facie burden on his age
discrimination claims to the extent they arise from CMH's decision to offer him a three-year
employment contract.
Under McDonnell Douglas, the burden now shifts to Defendants to articulate some
legitimate, nondiscriminatory reason for its decision to offer Plaintiff a three-year contract, rather
than a five-year contract, as it offered to his younger counterpart. Defendants contend that during
negotiations of the respective employment agreements with Plaintiff and Dr. DiGiovanni,
financial figures were provided by their practice, Hudson Valley Orthopedic Associates, to CMH
for review. Defendants argue that these figures reflect that Plaintiff generated lower revenues and
patient volumes compared to his partner, Dr. DiGiovanni, as well as their employee Dr.
Gorczynski. This disparity, Defendants contend, is a legitimate, non-discriminatory basis for
their offer of a shorter term to Plaintiff. Dkt. No. 40-2 ¶¶ 35, 38. Moreover, Defendants contend,
the agreements reflected the intentions of the parties, insofar as Plaintiff and Dr. DiGiovanni had
different long-term goals. "With regard to Dr. Kaufman, it was represented and understood that
Dr. Kaufman likely intended to decrease the scope of his surgical/clinical responsibilities within a
few years and have an increased non-surgical and office-based practice." Id. ¶ 34; see also
Kaufman Dep. at p. 145-46 ("I thought that I was going to work for three years and then I was
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going to do IME's [independent medical exams] and settle out into some pasture somewhere").
Defendants have thus articulated one or more legitimate, non-discriminatory reasons for their
conduct.
The burden now shifts back to Plaintiff to show that the articulated justifications were
pretextual, and that age was the "but-for" cause of the challenged adverse employment action and
not just a contributing or motivating factor. Here, "Plaintiff has proffered no evidence showing
that Defendants' stated reasons are merely pretextual and that age discrimination was [the] reason
for the adverse employment action." Elfenbein v. Bronx Lebanon Hosp. Ctr., No. 08 Civ. 5382,
2009 WL 3459215, *6 (S.D.N.Y. Oct. 27, 2009) (quotation and citation omitted). For instance,
Plaintiff has not produced evidence to counter Defendants' contention that his gross revenues and
patient volume in private practice were lower than his partner's and their employee's. See AbduBrisson v. Delta Air Lines, Inc., 239 F.3d 456, 470 (2d Cir. 2001) (finding that plaintiff had
"failed to produce any evidence to suggest that [the employer's] stated financial rationale was
pretextual").
Plaintiff has also failed to rebut Defendants' claim that a three-year term reflected the
intentions of the parties, and specifically, Plaintiff's desire to change the nature of his practice
after three years. By way of example, Plaintiff has not argued that he sought, and was denied, a
contract term longer than three years. Nor has Plaintiff adduced evidence which demonstrates a
desire on his part to continue performing all of his duties as an orthopedic surgeon more than
three years after he signed the Employment Agreement. Thus, Plaintiff has failed to meet his
ultimate burden of showing that he was treated adversely on account of his age. Accordingly,
Defendants' motion for summary judgment on Plaintiff's age discrimination claims is granted.
3.
Defendants Cahalan's and Chapin's Individual Liability
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For the reasons discussed above, the Court has granted Defendants' motion for summary
judgment as to Plaintiff's age and disability discrimination claims, thereby dismissing Plaintiff's
claims under the NYSHRL. Defendants correctly argue that Plaintiff's individual claims against
Defendants Cahalan and Chapin must likewise be dismissed. "Where no violation of the Human
Rights Law by another party has been established, . . . an individual employee cannot be held
liable for aiding or abetting such a violation." Strauss v. New York State Dep't of Educ., 26
A.D.3d 67, 73 (3d Dept. 2005). Notably, Plaintiff has not opposed this aspect of Defendants'
motion. Accordingly, Defendants' motion for summary judgment on Plaintiff's claims against
Defendants Cahalan and Chapin individually is granted.
4.
Breach of Contract Claim
Plaintiff claims that Defendants breached the Employment Agreement for terminating him
without just cause and without adhering to the Fair Hearing Plan that is part of CMH's Medical
Staff By-Laws. Defendants argue that to the extent Plaintiff's breach of contract claim is based
upon breach of the Medical Staff By-Laws, the claim fails as a matter of law and is untimely.
Relying on Mason v. Cent. Suffolk Hosp., 3 N.Y.3d 343 (2004), Defendants argue that
New York state law does not recognize hospital bylaws as a contract for breach of which a doctor
may sue. However, the Court of Appeals in Mason explicitly acknowledged situations where, as
here, bylaws may constitute a contract:
This does not mean, of course, that the hospital may not expose
itself to such liability if it chooses to do so. A clearly written
contract, granting privileges to a doctor for a fixed period of time,
and agreeing not to withdraw those privileges except for specified
cause, will be enforced.
Id. at 348-49.
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Plaintiff correctly argues that the Employment Agreement explicitly incorporates the
Medical Staff By-Laws by reference. More specifically, Section 11(b)(ii), one of the sections
pursuant to which Plaintiff was terminated, provides that the Employment Agreement may be
terminated as a result of: “[a] termination, suspension or non-renewal of your medical staff
privileges at the Hospital in accordance with the medical staff bylaws, rules and regulations and
policies of the Hospital.” Employment Agreement § 11. Moreover, the Employment Agreement
required Plaintiff to abide by the bylaws: “[a]s a condition of your employment hereunder, you
agree at all times to comply with the bylaws, rules and regulations of the Hospital and its Medical
Staff.” Id. § 13. Thus, the bylaws were incorporated by reference into Plaintiff’s Employment
Agreement. See NE Georgia Radiological Assocs., P.C. v. Tidwell, 670 F.2d 507, 511 (5th Cir.
1982) (finding that contract between radiologist’s private practice and hospital incorporated
medical bylaws by reference sufficient to give rise to property interest in staff privileges);
MacManus v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. 1:08-cv-96, 2008 WL 2115733, *4
(E.D. Tenn. May 19, 2008) (concluding that "[t]he Medical Staff Bylaws are incorporated by
reference into Plaintiff’s employment contract").
As noted by Plaintiff, "[t]he bylaws include a due process procedure, referred to as the
'Fair Hearing Plan', to determine just cause when a physician is subject to 'reduction, suspension,
or revocation of clinical privileges, or for suspension or expulsion from the Medial Staff.'" Dkt.
No. 46-18 at 31 (quoting Medical Staff By-Laws, Appendix A). Defendants have not contested
Plaintiff’s allegation that no such process was afforded to Plaintiff. Accordingly, Defendant's
motion for summary judgment with respect to Plaintiff’s breach of contract claim is denied.2
Since the Court has concluded that Plaintiff's claim sounds in breach of contract, it need
not address Defendants' argument that this aspect of Plaintiff's claim is a N.Y. C.P.L.R. Article 78
claim, subject to a four-month statute of limitations.
2
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5.
Unjust Enrichment Counterclaim
"To prevail on a claim for unjust enrichment, the moving party must show that the
defendant received money from or was otherwise enriched by the plaintiff to the defendant's
benefit and, pursuant to principles of equity and good conscience, the defendant should not retain
what plaintiff seeks to recover." Deutsche Asset Mgmt., Inc. v. Callaghan, No. 01 Civ. 4426,
2004 WL 758303, *11 (S.D.N.Y. Apr. 7, 2004) (citing, inter alia, Clark v. Daby,300 A.D.2d 732
(3d Dept. 2002)). "[C]laims for unjust enrichment seek restitution and are based upon theories of
quasi-contract." Deutsche Asset Mgmt., 2004 WL 758303, at *11 (citing Matter of Estate of
Witbeck, 245 A.D.2d 848 (3d Dept. 1997)). "A quasi-contract is one implied by law, where none
in fact exists." Deutsche Asset Mgmt., 2004 WL 758303, at *11 (citing James v. State, 90 A.D.2d
342 (4th Dept. 1982)). Thus, quasi-contract relief is only available in the absence of an
enforceable written contract which governs the same subject matter between the parties. See
Seiden Associates, Inc. v. ANC Holdings, 754 F. Supp. 37, 39 (S.D.N.Y. 1991).
Defendants assert, in conclusory fashion, that they are entitled to summary judgment on
their unjust enrichment claim for repayment of the $37,000 paid to Plaintiff during his leave of
absence between August 2009 and January 2010. Defendants argue that "[it] cannot be disputed
that the Hospital advanced Plaintiff unearned paid vacation benefits to provide him with a source
of income while he was [sic] purportedly took leave to obtain the recommended
neuropsychological follow-up evaluation and clearance to return to work." Dkt. No. 40-41 at 36.
Thus, Defendants contend, they have satisfied the enrichment prong of their counterclaim.
Next Defendants argue that the equities are in their favor because Plaintiff misrepresented
to Defendants that he had not undergone a follow-up evaluation, even though Dr. Galaburda twice
warned Plaintiff that he should not resume his practice. Based upon the sparse record currently
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before the Court, summary judgment would be inappropriate on Defendants' counterclaim. The
Court has not been presented with any financial statements or other accounting which would
reflect the precise amount advanced by Defendants, and the portion of which, if any, was
unearned at the time it was paid to Plaintiff. Moreover, it is by no means clear at this stage that
the equities are in Defendants favor. That is an issue that will be resolved at trial. In addition,
although Plaintiff has not sought dismissal of Defendants' counterclaim on this basis, it appears
that the Employment Agreement is a valid contract between the parties which would preclude a
claim in quasi-contract. Accordingly, and for the foregoing reasons, Defendants' motion for
summary judgment on their unjust enrichment counterclaim is denied.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED in part and
DENIED in part; and the Court further
ORDERS that Defendants' motion for summary judgment on Plaintiff's age and disability
discrimination claims is GRANTED; and the Court further
ORDERS that Defendants' motion for summary judgment on Plaintiff's individual claims
against Defendants Cahalan and Chapin is GRANTED; and the Court further
ORDERS that Defendants' motion for summary judgment on Plaintiff's breach of contract
claim is DENIED; and the Court further
ORDERS that Defendants' motion for summary judgment on their unjust enrichment
counterclaim is DENIED; and the Court further
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ORDERS that Defendants Cahalan and Chapin are DISMISSED from this action; and
the Court further
ORDERS that the parties' counsel shall be available for a telephone conference on
March 4, 2014 at 10:00 a.m. to discuss setting a trial date; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 19, 2014
Albany, New York
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