Branch v. State University of New York Downstate Medical Center et al

Filing 212

ORDER re: 173 MOTION for Summary Judgment . filed by State University of New York, Ayman Fanous. For the reasons stated above, Defendants' motion for summary judgment is GRANTED as to Plaintiff's claims under Title VII , § 1981, § 1983, and the NYSHRL. The Court declines to exercise supplemental jurisdiction over Plaintiff's claims under the NYCHRL, and, therefore, those claims are DISMISSED without prejudice to renewal in state court. Plaintiff' ;s request that the Court revisit its decision dismissing his retaliation claims and allow him leave to file a supplemental brief is DENIED. The Clerk of Court is directed to close the case. SO ORDERED. (Signed by Judge Analisa Torres on 1/17/2023) (kv) Transmission to Orders and Judgments Clerk for processing.

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DISMISSED those claims and Plaintiff’s claims under the NYCHRL, and DENIED Plaintiff’s
request for leave to file a supplemental brief. ECF No. 206. The Court informed the parties that this
opinion would follow in due course. The Court believed that the opinion had been filed many months
ago, but apparently it was inadvertently not entered on the docket.
BACKGROUND1
In December 2015, Plaintiff, a man of “African-American and of Caribbean national origin,”
was hired as the Director of the Adult Psychiatry Residency Training Program (“Program Director”)
at SUNY Downstate Medical Center (“SUNY Downstate”). Pl. 56.1 ¶ 1, ECF No 190. Plaintiff was
the first and only African-American and person of Caribbean decent to hold this position. Id.
The Adult Psychiatry Residency Training Program (the “Program”) is a four-year program
accredited by the Accreditation Council for Graduate Medical Education (“ACGME”), which sets the
Program’s training requirements. Id. ¶ 4. Medical school graduates in the Program “are trained in
the clinical practice of psychiatry by treating patients in clinical settings alongside more experienced
clinicians.” Id. The Program is managed by the Program Director, who reports to the Chair of the
Psychiatry Department at SUNY Downstate. Id. ¶ 5. The Program Director “recruits and supervises
residents, ensures that residents are receiving required training and supervision, oversees all aspects
of the training provided to residents, including academic instruction and clinical experience, prepares
reports required by the ACGME, and chairs and supervises various committees.” Id.
SUNY Downstate works with affiliate hospitals which provide funding for its clinical faculty
and staff. Id. ¶ 7. The terms of these arrangements are memorialized in affiliation agreements. Id.

1

The facts in this section are taken from the parties’ Rule 56.1 statements, unless otherwise noted. Citations to a
paragraph in the Rule 56.1 statement also include the other party’s response. The Court considers admitted for purposes
of the motion any paragraph that is not “specifically controverted by a correspondingly numbered paragraph in the
statement required to be served by the opposing party.” Local Civ. R. 56.1(c). “[W]here there are no citations, or where
the cited materials do not support the factual assertions in the [s]tatements, the Court is free to disregard the assertion.”
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (alteration omitted).

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One of these affiliates is Kings County Hospital Center (“Kings County”), a public teaching hospital
located across the street from SUNY Downstate. Id. ¶ 8.
Until December 2014, SUNY Downstate had an in-patient psychiatric unit where psychiatry
residents trained and treated patients. Id. ¶ 9. Before the closure of that unit, Kings County paid
approximately 50% of the psychiatry residents’ salaries. Id. ¶ 10. Kings County also paid 30% of the
salary of Michael Myers, M.D., the last Program Director hired prior to the closure of the unit, id.
¶ 13; however, it did not pay any of the salary of Stephen Goldfinger, M.D., who filled the Program
Director position between Myers and Plaintiff, id. ¶ 11.
After the in-patient psychiatric unit was closed, the Program largely operated out of Kings
County, which began paying 70% of the residents’ salaries. Id. ¶ 12. Kings County also increased its
contribution to the Program Director’s base salary to 54%, which went into effect for the first
Program Director hired after the closure, Plaintiff. Id. ¶ 13.
In October 2015, Goldfinger, the Chair of the Psychiatry Department and the Program
Director, recommended that Plaintiff be appointed as a Clinical Assistant Professor of Psychiatry and
as Program Director. See id. ¶¶ 11, 14–15. “Plaintiff’s appointment as a Clinical Assistant Professor
. . . was neither tenured nor on the tenure track, [and] was initially temporary and could be terminated
at any time.” Id. ¶ 18. Goldfinger sent Plaintiff an offer letter describing the terms of Plaintiff’s
appointment, which included, inter alia, that 50% of Plaintiff’s time would “be devoted to [his]
program director duties” and he would spend a “day a week of clinical/supervisory activities (ideally
at the chemical dependency service at [Kings County]).” Goldfinger Oct. 2015 Letter at 1, ECF No.
176-5. The letter also explained that a “portion” of Plaintiff’s base salary will be for his “work as the
program director at [Kings County].” Id. Plaintiff accepted the Program Director appointment by
signing Goldfinger’s letter. See id.; Pl. 56.1 ¶ 16.
On December 31, 2015, Plaintiff’s appointment went into effect, and he was originally
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supervised by Goldfinger. Pl. 56.1 ¶ 17. On July 1, 2016, SUNY Downstate and Kings County
executed an addendum to their affiliation agreement. Id. ¶ 19. The addendum identified Plaintiff as
the Program Director at Kings County. Addendum at 5, ECF No 176-3. The parties dispute whether
Plaintiff’s written job responsibilities required him to spend time at Kings County supervising
residents. Pl. 56.1 ¶ 16.
In August 2016, Fanous replaced Goldfinger as the Chair of the Psychiatry Department, and
Plaintiff began reporting to him. Id. ¶¶ 17, 20. Fanous recommended that Plaintiff’s Clinical
Assistant Professor position be changed to a two-year term. Id. ¶ 21. Around May 2017, Fanous
nominated Plaintiff to represent the College of Medicine in a minority faculty leadership development
seminar sponsored by the Association of American Medical Colleges. Id. ¶ 23. Plaintiff and Fanous
scheduled a weekly meeting to discuss matters related to the Program. Id. ¶ 24. Fanous cancelled
some of these meetings. Id.
When Plaintiff was appointed as Program Director in December 2015, Ellen Berkowitz, who
worked in the Residency Training Office since 1989, reported to Plaintiff and supported some aspects
of his work. Id. ¶ 34. Berkowitz also reported to Plaintiff’s predecessors, who did not have a formal
Associate Program Director. Id. ¶¶ 34–35. After Berkowitz was promoted, Fanous and Plaintiff
began searching for an Associate Program Director in July 2017. Id. ¶¶ 36–37. Plaintiff posted a
vacancy announcement and participated in interviewing candidates. Id. Fanous updated Plaintiff
regarding the Associate Program Director search at their meetings. Id. During this time, Glenn
Occhigrosso, M.D., was appointed as the Site Director at Kings County to help oversee the Program’s
operations there. Id. ¶ 38. Fanous also asked Myers to assist with Plaintiff’s work, and Plaintiff had
assistance from Juliet Arthur, the Program’s administrator, who performed clerical duties. Id. ¶¶ 38,
41.
On October 5, 2017, Plaintiff acknowledged that an Associate Program Director had not been
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hired for reasons beyond Defendants’ control. Id. ¶ 39. He also expressed his belief that not having
an Associate Program Director put the Program out of compliance with accreditation requirements.
Id. When Fanous suggested that Occhiogrosso be temporarily assigned the Associate Program
Director responsibilities, Plaintiff rejected the proposal because he had concerns about
Occhiogrosso’s performance. See id. ¶ 40; Pl. Dep. at 310–11, ECF No. 176-29.
As Program Director, “Plaintiff did not provide clinical supervision at Kings County and did
not observe the performance of the residents he supervised.” Pl. 56.1 ¶ 25. In a meeting in August or
September 2017 between Fanous, Carlos Pato, M.D., then Dean of the SUNY Downstate College of
Medicine, and senior members of Kings County’s medical staff, the staff raised concerns about
Plaintiff’s failure to perform clinical supervision at Kings County. Pato Decl. ¶¶ 1, 9, ECF No. 181.
They expressed that it was their understanding that Plaintiff “would be based there and would provide
regular clinical supervision to the residents there,” and that they considered Plaintiff’s absence a
breach of the terms of the affiliation agreement between Kings County and SUNY Downstate. Id.
On September 7, 2017, Fanous told Plaintiff that Plaintiff may need to begin providing
clinical supervision at Kings County because SUNY Downstate and Kings County were renegotiating
contracts between them. See Exhibit K at 2, ECF No. 176-11; Pl. Decl. ¶ 79, ECF No. 189; Pl. 56.1
¶ 28. On September 29, 2017, Plaintiff asked Fanous to be relieved of all of his clinical
responsibilities as of October 1, 2017. Pl. 56.1 ¶ 29; Exhibit M, ECF No. 176-13. Fanous denied this
request. Fanous Decl. ¶ 16, ECF No. 177; Pl. 56.1 ¶ 29; see also Exhibit M. On October 26, 2017,
Fanous informed Plaintiff that he would need to begin performing extensive clinical work at Kings
County starting January 1, 2018. Exhibit K at 2. Then, on November 7, 2017, Fanous informed
Plaintiff that, as of January 1, 2018, the Program Director position will be funded fully by Kings
County and will involve spending 50% of the Program Director’s time on clinical responsibilities.
ECF No. 193-14. Fanous also informed Plaintiff that the Program’s office will be physically
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relocated to Kings County. Id.2
On November 16, 2017, Plaintiff stated that he “would not consent to this planned change in
the terms and conditions of [his] contract” and refused to perform clinical work or supervise residents
at Kings County. Exhibit K at 3; see also Fanous Decl. ¶ 24. On November 17, 2017, Fanous
informed Plaintiff that, if he did not reconsider his refusal, “[Fanous] would have no choice but to
reassign [Plaintiff].” Exhibit K at 3. Plaintiff again refused to consent to the planned changes,
demanding that Fanous provide him with documentation of the need for him to perform clinical work
at Kings County. Id. Then, on November 29, 2017, Fanous again asked Plaintiff if he would
reconsider. Id. Plaintiff said no, and told Fanous that he was “awaiting formal documentation from
[Fanous] regarding these changes.” Id. Fanous kept Carlos Pato apprised of his conversations with
Plaintiff regarding Plaintiff’s refusal to perform clinical supervision at Kings County. Fanous Decl.
¶ 29.
Meanwhile, on September 12, 2017, Plaintiff complained to Fanous about an interaction he
had with Michele Pato, M.D., a faculty member in the psychiatry department and the wife of Carlos
Pato. Pl. 56.1 ¶ 60. “According to Plaintiff, . . . [Michele] Pato had been disruptive during [a]
meeting, undermining his authority in front of those who were in attendance.” Id. “Fanous informed
Plaintiff that . . . Michele Pato would not be involved in the . . . Program for the remainder of the
academic year.” Id. In a separate conversation with Shaundelle Moore Goldsmith, the Director of
the Office of Diversity and Inclusion (“ODI”), Plaintiff stated that Michele Pato may have behaved
that way towards him because she is the “Caucasian spouse of the Dean.” Id. ¶¶ 61–62. Then, on
December 6, 2017, Plaintiff emailed Goldsmith a list of incidents that concerned him. Id. ¶ 62; see
generally Exhibit K. Plaintiff complained that after he made his complaints about Michele Pato,

2

In December 2017, Fanous decided to abandon the plan to move the Program’s physical offices. See ECF No. 193-20.

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Fanous started meeting with him less frequently. Pl. 56.1 ¶ 63. Kevin Antoine, the Assistant Vice
President for ODI, discussed Plaintiff’s concerns with Fanous. Id. ¶ 64. Fanous agreed to meet with
Plaintiff more frequently. Id.
On February 6, 2018, Plaintiff relinquished his clinical privileges at Kings County by stating
he would not be able to perform the work at Kings County, which rendered him unable to provide
clinical services at that location. Id. ¶ 33; Exhibit P, ECF No. 176-16; Pl. Dep. 146–50. Fanous was
copied on the emails addressed to Plaintiff about Plaintiff relinquishing his clinical privileges.
Exhibit P. Plaintiff informed Fanous of the relinquishment of his clinical privileges on February 7,
2018. Fanous Decl. ¶ 134; see also Pl. 56.1 ¶¶ 33, 45. On that same date, Carlos Pato received an
email from Karen R. Saunders referencing a discussion Carlos Pato had with human resources on
February 6, 2018, the day Plaintiff relinquished his privileges, regarding Fanous needing to issue
Plaintiff a non-renewal notice for his appointment as a Clinical Assistant Professor. See ECF No.
194-9; Pl. 56.1 ¶ 45. Then, on February 9, 2017, Fanous issued Plaintiff the notice of non-renewal,
recommending that Plaintiff’s appointment as a Clinical Assistant Professor not be renewed after it
expired on December 31, 2018. Pl. 56.1 ¶ 45. Carlos Pato informed Wayne Riley, M.D., the
President of SUNY Downstate, that he agreed with Fanous’ recommendation to not renew Plaintiff’s
appointment as a Clinical Assistant Professor. ECF No. 194-11.
On March 23, 2018, Plaintiff sent another list of concerns to ODI. See ECF No. 193-37. He
complained about his treatment by members of human resources and stated that he was “very
concerned that the treatment to which [he has] been subjected by multiple administrative employees
of SUNY [Downstate] has been discriminatory and non-standard.” Id. Plaintiff also expressed that
he was “very concerned” that he was being mistreated in retaliation for not accepting “proposed
changes to [his] job contract/description” and for filing his complaint involving Michele Pato. Id.
In March 2018, Carlos Pato asked David Wlody, M.D., the Designated Institutional Official at
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SUNY Downstate who reported to Carlos Pato, to meet with Fanous and Plaintiff and explain “why it
was important for [Plaintiff] to begin providing clinical supervision at Kings County on a regular
basis.” Pato Decl. ¶ 14. At a March 15, 2018 meeting with Plaintiff, Fanous, and Wlody, Wlody
raised concerns about Plaintiff’s failure to perform clinical supervision at Kings County. Id. ¶¶ 27,
47–48. Specifically, Wlody explained that it was important for Plaintiff to have a “regular presence
at Kings County” because Kings County was paying his salary and “somebody needed to be there to
supervise the residents and see firsthand what was happening there.” Wlody Decl. ¶¶ 10, 12, ECF
No. 182. He also told Fanous and Plaintiff that residents in the Program had raised concerns about
their experience. Id. ¶ 12. Plaintiff refused to commit to providing clinical supervision at Kings
County, Pl. 56.1 ¶ 49; Fanous Decl. ¶ 30; Wlody Decl. ¶ 13, and left the meeting, Wlody Decl. ¶ 13.
Fanous and Wlody then called Carlos Pato to inform him of Plaintiff’s behavior. Pato Decl.
¶ 15. Carlos Pato told Fanous and Wlody that Plaintiff would need to decide “then and there”
whether he would “begin fulfilling the obligations he had agreed to when he accepted the position as
[Program].” Id. ¶ 15. Carlos Pato told them that “if [Plaintiff] continued to refuse to provide clinical
supervision at Kings County, he could no longer serve as the Program Director.” Id. Fanous then
asked Plaintiff to return to the meeting. Fanous Decl. ¶ 32; Wlody Decl. ¶ 15. Wlody asked Plaintiff
to make a decision regarding whether he was willing to provide clinical supervision at Kings County.
Wlody Decl. ¶ 15. Plaintiff refused to make a decision, id., and again asked for documentation
regarding the need for him to provide these services, Pl. 56.1 ¶ 49. Wlody then informed Plaintiff
that “since he refused to supervise residents at Kings County, he could no longer serve as Program
Director.” Wlody Decl. ¶ 15.
After this meeting, on March 19, 2018, Plaintiff recorded a conversion between himself and
another doctor, in which Plaintiff told the other doctor that he was fired for refusing to spend half of
his time providing clinical services at Kings County. Pl. 56.1 ¶ 50. On March 21, 2018, Plaintiff
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emailed Goldsmith and Antoine to complain about alleged retaliation. Id. ¶ 65. Specifically, Plaintiff
contended that he was being mistreated in retaliation for his complaint against Michele Pato. See
ECF No. 193-38 at 3. On April 16, 2018, Plaintiff filed another complaint with ODI expressing that
he was “treated differently than [his] similarly situated white and non-black colleagues” and was
retaliated against based on his complaints against Michele Pato. ECF No. 193-39. Then, on April 24,
20218, ODI concluded that it could “not substantiate” Plaintiff’s claims. ECF No. 176-28. On July
31, 2018, before the expiration of his appointment term, Plaintiff resigned. Pl. 56.1 ¶ 46.
Following Plaintiff’s removal as Program Director, the position was filled by Ramaswamy
Viswanathan, M.D., who “was temporarily appointed Interim Program Director . . . until a permanent
Program Director could be appointed.” Id. ¶ 52. Viswanathan continued to maintain his positions as
“a tenured Professor of Psychiatry, the Director of the Consultative Liaison Service, the Chair of the
Grand Rounds Committee, and a member of one of the . . . Program’s committees.” Id. He was not
compensated for serving as the Interim Program Director and was not otherwise paid by Kings
County. Id. Viswanathan was not required to perform on-site services at Kings County when he
served as Interim Program Director. Id. Occhiogrosso was hired as Viswanathan’s Associate
Program Director. Id. ¶ 44.
In November 2018, Scot McAfee, M.D., was appointed Program Director. Id. ¶ 53. McAfee
was advised that Kings County is the primary site for the Program, and his offer letter stated that
there is a “mutual understanding that most of your professional activity will take place at [Kings
County], which is the primary site for the adult residency.” Id. ¶ 54. McAfee provides clinical
supervision at Kings County one day a week and performs other work physically at Kings County
and in close cooperation with Kings County staff. Id. ¶ 55. He also maintains an office at Kings
County where he regularly meets with residents and staff. Id. Kings County funds a portion of
McAfee’s salary. Id. Although Fanous and McAfee have weekly meetings scheduled, Fanous at
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times cancels these meetings. Id. ¶ 58. In October 2020, Occhiogrosso resigned as the Associate
Program Director. Id. ¶ 59. Since that time, McAfee has not had the assistance of an Associate
Program Director. Id.3
DISCUSSION
I.

Summary Judgment
A. Standard of Review
Summary judgment is appropriate when the record shows that there is no genuine dispute as

to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–26 (1986). A genuine dispute exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
moving party initially bears the burden of informing the court of the absence of a genuine dispute of
material fact by citing particular evidence in the record. Fed. R. Civ. P. 56(c)(1); see also Celotex,
477 U.S. at 323–24; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). If the
nonmoving party has the ultimate burden of proof on specific issues at trial, the movant may also
satisfy its own summary judgment burden by demonstrating that the adverse party cannot produce
admissible evidence to support an issue of fact. See Celotex, 477 U.S. at 322–23; PepsiCo, Inc. v.
Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). If the moving party meets its initial
burden, the burden then shifts to the opposing party to establish a genuine dispute of material fact.
Beard v. Banks, 548 U.S. 521, 529 (2006); PepsiCo, 315 F.3d at 105. In doing so, the non-moving

In his deposition, Fanous states that McAfee was not hired as a full-time Program Director because Fanous “believe[s]”
he spends “one day a week at Maimonides,” another New York City hospital. Fanous Dep. at 120, ECF No. 176-31.
Fanous then clarified that McAfee actually does “perform the duties” of a Program Director “five days a week.” Id. at
121. In McAfee’s declaration, he explains that, when he was first appointed Program Director, he continued to work one
half day at Maimonides, his prior place of employment. McAfee Reply Decl. ¶ 3, ECF No. 202. But, in October 2019,
McAfee stopped working at Maimonides and has since worked for SUNY Downstate five days a week. Id. ¶ 4.
3

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party “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143
F.3d 105, 114 (2d Cir. 1998), as “unsupported allegations do not create a material issue of fact,”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). In deciding the motion, the court
views the record in the light most favorable to the nonmoving party. Koch, 287 F.3d at 165.
Courts must be “cautious about granting summary judgment to an employer in a
discrimination case when the employer’s intent is in question,” and must “carefully scrutinize[]” the
non-movant’s affidavits and depositions for “circumstantial proof which, if believed, would show
discrimination.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quotation marks and
citation omitted).
B. Claims under Title VII, § 1981, § 1983, and the NYSHRL
The Court shall analyze Plaintiff’s claims under Title VII, § 1981, § 1983, and the NYSHRL
using the burden-shifting framework for Title VII claims set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973). See Choudhury v. Polytechnic Inst. of New York, 735 F.2d 38,
44 (2d Cir. 1984) (applying the McDonnell-Douglas framework to § 1981 claims); Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015) (applying the McDonnell-Douglas
framework to § 1983 claims); Olsson v. ABM Taxi Dispatch Laguardia Airport, No. 18 Civ. 8815,
2020 WL 5038742, at *4 & n.3 (S.D.N.Y. Aug. 26, 2020) (applying the McDonnell-Douglas
framework to NYSHRL claims for conduct occurring before August 2019).
Under the McDonnell-Douglas framework, a plaintiff must first establish a prima facie case
of discrimination by showing: (1) he is a member of a protected class; (2) he is qualified for the
positions he held; (3) he suffered an adverse employment action; and (4) the adverse action took
place under circumstances giving rise to the inference of discrimination. Ruiz v. Cnty. of Rockland,
609 F.3d 486, 491–92 (2d Cir. 2010). Although the plaintiff’s burden at this stage is minimal, “it is
not . . . nonexistent.” Wellington v. Spencer-Edwards, No. 16 Civ. 6238, 2019 WL 2764078, at *3
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(S.D.N.Y. July 1, 2019); see also Garcia v. Henry St. Settlement, 501 F. Supp. 2d 531, 540 (S.D.N.Y.
2007) (explaining how the Second Circuit “recognized that this burden has substance” (quotation
marks and citation omitted)). A plaintiff must point to specific facts that make out the elements of a
prima facie case, as “[c]onclusory and speculative allegations will not suffice.” Nguyen v. Dep’t of
Corr. & Cmty. Servs., 169 F. Supp. 3d 375, 388 (S.D.N.Y. 2016).
If the plaintiff makes a prima facie case, the burden then shifts to the defendant to offer a
legitimate nondiscriminatory reason for the adverse action. Ruiz, 609 F.3d at 492. If the defendant
does so, the burden returns to the plaintiff to demonstrate that the real reason for the action was the
plaintiff’s protected characteristic. Id.
In his third amended complaint, Plaintiff claims that Defendants discriminated against him by
demoting him, not renewing his contract, denying him an Assistant Program Director, and excluding
him from meetings. See Third Amend. Compl. ¶¶ 38, 42, 81, 90–95. Defendants address all of these
issues in their memorandum. See generally Defs. Mem. But, in his opposition to Defendants’ motion
for summary judgment, Plaintiff argues only that Defendants discriminated against him by
(1) demoting him from Program Director and (2) not renewing his contract as a Clinical Assistant
Professor. See Pl. Mem. at 18–19, ECF No. 195. The Court, therefore, deems abandoned Plaintiff’s
claims regarding Defendants’ failure to assign him an Assistant Program Director and their excluding
him from meetings. See Cruz v. Liberatore, 582 F. Supp. 2d 508, 528 (S.D.N.Y. 2008).
Defendants argue that Plaintiff cannot show that his demotion and termination were adverse
employment actions because they resulted from Defendants enforcing the terms of his employment.
Defs. Mem. at 17–18. The Court disagrees. The question is not why Defendants took these actions,
but whether these actions were taken. As stated in this Court’s order on Defendants’ motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), demotion and termination of employment are
examples of adverse employment actions that can form the basis of a claim for employment
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discrimination. See Order at 5–6 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). The
Court, therefore, finds that the undisputed facts show that Plaintiff was subjected to adverse
employment actions when Defendants removed him from the Program Director position and did not
renew his contract as a Clinical Assistant Professor.
Defendants next argue that Plaintiff cannot establish a prima facie case because the
undisputed facts show that these adverse actions did not take place under circumstances giving rise to
the inference of discrimination. Defs. Mem. at 18–23.
The Court agrees that Plaintiff has not met his burden of showing that Defendants’ nonrenewal of his Clinical Assistant Professor position took place under circumstances giving rise to the
inference of discrimination. Plaintiff has presented no facts showing that Fanous, or any other
decisionmakers involved in the non-renewal of his contract, made any discriminatory or disparaging
remarks about Plaintiff’s race or national origin. And, Plaintiff does not identify who replaced him as
Clinical Assistant Professor, or that he was treated differently from other similarly situated Clinical
Assistant Professors outside of his protected groups.
However, the Court concludes that Plaintiff has established a prima facie case with regard to
his demotion. Plaintiff contends that he can make out a prima facie case merely by showing that he
“was replaced as Program Director by two individuals outside his class.” Pl. Mem. at 20. The Court
agrees. See Littlejohn v. City of New York, 795 F.3d 297, 312–13 (2d Cir. 2015). The undisputed
facts show that both Plaintiff’s temporary and permanent replacements were not African-American or
of Caribbean national origin. See Pl. Decl. ¶¶ 36, 161. And, as the Second Circuit has stated, “‘the
evidence necessary to satisfy th[e] initial burden’ of establishing that an adverse employment action
occurred under circumstances giving rise to an inference of discrimination is ‘minimal,’” and “[t]he
fact that a plaintiff was replaced by someone outside the protected class will ordinarily suffice for the
required inference of discrimination at the initial prima facie stage of the . . . analysis.” Littlejohn,
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795 F.3d at 313 (quoting Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.
2001)).
To rebut Plaintiff’s prima facie case, Defendants argue that the undisputed facts show that
they had a legitimate, non-discriminatory reason for removing Plaintiff as Program Director—that
Plaintiff refused to provide clinical supervision to the residents at Kings County. Defs. Mem. 24–25.
Plaintiff contends that Defendants’ reason for his removal is pretextual because: (1) Kings County
continued to pay his salary after he was removed as Program Director despite his not providing them
with any services; (2) Viswanathan, Plaintiff’s temporary replacement, did not provide Kings County
with any on-site services; and (3) “questions and inconsistencies abound” regarding Defendants’
demanding that Plaintiff perform work at Kings County. Pl. Mem. at 22 (citation omitted).
The Court rejects Plaintiff’s argument that Kings County’s continued funding of his salary
after his removal from the Program Director position shows that Defendants did not remove Plaintiff
because of his refusal to provide clinical services. Plaintiff offers no explanation as to why this fact
would demonstrate pretext. See generally id. Moreover, Defendants represent, and Plaintiff does not
contest, that Plaintiff “resigned before the sources of his salary support could be adjusted to reflect
the fact that he was no longer the Program Director.” Clinchy Reply Decl. ¶ 10, ECF No. 201; ECF
No. 93 at 9. No reasonable jury would determine that a delay in adjusting Plaintiff’s funding
demonstrates that Defendants did not remove him as Program Director because of his failure to
provide clinical services at Kings County.
Plaintiff’s second argument also fails. The undisputed facts show that Viswanathan served as
an interim Program Director who temporarily replaced Plaintiff from March 2018 until a permanent
replacement could be hired in November 2018. Pl. 56.1 ¶¶ 52–53. Unlike Plaintiff, Viswanathan
continued to hold multiple other positions and was not paid for his service as the interim Program
Director by SUNY Downstate or Kings County. Id. ¶ 52. Furthermore, McAfee, the next permanent
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Program Director, does receive part of his salary from Kings County and provides clinical
supervision there once a week. Id. ¶ 55. Thus, no reasonable jury would conclude that
Viswanathan’s situation supports Plaintiff’s argument.
The Court also finds Plaintiff’s third argument unpersuasive. Plaintiff contends that
Defendants’ reasons are pretextual because they continually increased the time he would need to
spend at Kings County and that, although they ordered him to spend 50% of his time at Kings
County, they required that his successor, McAfee, to spend only one day a week at Kings County. Pl.
Mem. at 8–9. Plaintiff also argues that Defendants provided no documentation of the alleged
renegotiations with Kings County that they used to justify these requests to Plaintiff, the ODI, or this
Court. Id. at 9–10. But, even though Plaintiff identifies some discrepancies in Defendants’
reasoning, he does not put forward any facts that contest the heart of Defendants’ stated reason—they
wanted him to provide clinical services at Kings County and he refused to do so. Therefore, “even if
. . . facts are in dispute” regarding how much time Plaintiff needed to spend at Kings County and the
reasons for this need, Plaintiff “cannot demonstrate that [D]efendants’ proffered reasons for [his]
termination were so unfounded that a reasonable jury could conclude that they were not the
[D]efendants’ true reasons, but rather a pretext.” Fleming v. MaxMara USA, Inc., 371 F. App’x 115,
117–18 (2d Cir. 2010) (quotation marks and citation omitted).
Moreover, even assuming, arguendo, that Plaintiff has raised sufficient facts to show that
Defendants’ reason is pretextual, a rejection of a defendant’s proffered reasons does not compel
judgment for the plaintiff. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). Indeed,
once a defendant has put forward reasons in support of its decision, the presumption created by the
prima facie case, “having fulfilled its role of forcing the defendant to come forward with some
response, simply drops out of the picture.” Id. at 510–11. The plaintiff must not only put forth
“sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
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proffered by the [defendant] were false,” he must also show that “that more likely than not
discrimination was the real reason for the [adverse employment action].’” Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (citation and alteration omitted).
Thus, even though Plaintiff’s evidence is “sufficient to raise a fact question as to pretext,” it
“fails to warrant a jury trial.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 93–94 (2d Cir.
2001), as amended (June 6, 2001). As discussed above, the only evidence that supports Plaintiff’s
prima facie case of racial discrimination is the fact that he was replaced by someone outside of his
protected groups. Although this evidence is sufficient to satisfy the minimal burden at the prima
facie stage, it does not carry his burden of showing that he was treated adversely for discriminatory
reasons. See Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148–49 (2000).
Accordingly, Plaintiff’s claims under Title VII, §1981, § 1983, and the NYSHRL are
DISMISSED.
C. Retaliation Claims
In his memorandum opposing summary judgment, Plaintiff argues that the Court “should
exercise [its] discretion . . . and revisit the issue of whether Defendants engaged in retaliatory
conduct,” without explaining why it should do so. Pl. Mem. at 24–25. By letter dated August 9,
2021, Plaintiff requests leave to file a supplemental brief discussing how the Second Circuit’s
decisions in Lynch v. City of New York, 952 F.3d 67 (2d Cir. 2020) and Lively v. WAFRA Investment
Advisory Group, Inc., 6 F.4th 293 (2d Cir. 2021) “further support his argument . . . that the Court
should exercise its discretion and revisit the decision dismissing the . . . retaliation claims.” ECF No.
204.
To the extent that Plaintiff attempts to argue for reconsideration of the Court’s July 20, 2020
decision dismissing his retaliation claims, see Order, this request, made over ten months after this
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Court issued that decision, is untimely. See, e.g., Munn v. APF Mgmt. Co. LLC, 2021 WL 2355308,
at *2 (S.D.N.Y. Jun. 9, 2021). Moreover, Plaintiff has not explained why the two cited cases cast
doubt on this Court’s decision, and the Court is not persuaded that they do.
Accordingly, Plaintiff’s request that the Court revive his retaliation claims and allow him to
file a supplemental brief is DENIED.
D. Claims Under the NYCHRL
A district court has discretion to “decline to exercise supplemental jurisdiction” where, as
here, it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Where all federal claims are eliminated before trial, “the balance of factors to be considered under the
pendent jurisdiction doctrine . . . point toward [a federal court] declining to exercise jurisdiction over
the remaining state [and city] law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988); see also Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d Cir. 2017) (Calabresi, J.,
concurring).
Because the NYCHRL sets out a different, more liberal standard for discrimination claims,
which the Court has not considered in this opinion, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s remaining claims under the NYCHRL. Accordingly, those claims are
DISMISSED without prejudice to renewal.

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CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is GRANTED as to
Plaintiff’s claims under Title VII, § 1981, § 1983, and the NYSHRL. The Court declines to exercise
supplemental jurisdiction over Plaintiff’s claims under the NYCHRL, and, therefore, those claims are
DISMISSED without prejudice to renewal in state court. Plaintiff’s request that the Court revisit its
decision dismissing his retaliation claims and allow him leave to file a supplemental brief is
DENIED.
The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: January 17, 2023
New York, New York

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