Greenberg v. State University Hospital – Downstate Medical Center

19-3570
Greenberg v. State University Hospital – Downstate Medical Center
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of December, two thousand twenty.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
AMALYA L. KEARSE,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
ODED GREENBERG,
Plaintiff-Appellant,
v. 19-3570
STATE UNIVERSITY HOSPITAL – DOWNSTATE
MEDICAL CENTER, a/k/a The State University of New
York Health Science Center at Brooklyn, a/k/a State
University of New York Downstate Medical Center,
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, KINGS COUNTY HOSPITAL CENTER,
DEBORAH L. REEDE, STEVEN PULITZER,
Defendants-Appellees,
UNITED UNIVERSITY PROFESSIONS, (UUP), SUNY
DOWNSTATE MEDICAL CENTER CHAPTER OF UNITED
UNIVERSITY PROFESSIONS, JOHN AND JANE DOES 1–
20,
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Defendants. *
_____________________________________
For Plaintiff-Appellant Oded CHAD L. EDGAR, Cardi & Edgar LLP, New York, NY
Greenberg:
For Defendants-Appellees State AMIT R. VORA, Assistant Solicitor General (Barbara
University Hospital – Downstate D. Underwood, Solicitor General, Anisha S.
Medical Center, Deborah L. Reede, Dasgupta, Deputy Solicitor General, on the brief),
and Steven Pulitzer: for Letitia James, Attorney General of the State of
New York, New York, NY
For Defendants-Appellees New AMY MCCAMPHILL, Assistant Corporation Counsel
City Health and Hospitals (Jonathan A. Popolow, Richard P. Dearing, and
Corporation, and Kings County Deborah A. Brenner, on the brief), for James E.
Hospital Center Johnson, Corporation Counsel of the City of New
York, New York, NY
Appeal from an order of the United States District Court for the Eastern District of New
York (Chen, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Plaintiff-Appellant Dr. Oded Greenberg (“Dr. Greenberg” or “Plaintiff”) appeals from a
September 29, 2019 memorandum and order of the United States District Court for the Eastern
District of New York (Chen, J.) granting summary judgment in favor of Defendants-Appellees
State University Hospital – Downstate Medical Center (“SUNY”), New York City Health and
Hospitals Corporation (“HHC”), Kings County Hospital Center (“KCHC”), Dr. Deborah L. Reede
(“Dr. Reede”), and Dr. Steven Pulitzer (“Dr. Pulitzer”) (collectively, “Defendants”). On appeal,
Dr. Greenberg contends that the district court erred in granting summary judgment in favor of
Defendants as to his employment discrimination claims under Title VII of the Civil Rights Act of
*
The Clerk of Court is respectfully directed to amend the caption as set forth above.
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1964 (“Title VII”), 42 U.S.C. § 2000 et seq., and his interference and retaliation claims under the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. 1 We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
* * *
We review grants of summary judgment de novo, “construing the facts in the light most
favorable to the non-moving party and drawing all reasonable inferences in that party’s favor.”
Burns v. Martuscello, 890 F.3d 77, 83 (2d Cir. 2018) (internal quotation marks omitted).
Summary judgment is proper only when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “An issue of fact
is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
A. FMLA Interference
The district court granted summary judgment to Defendants as to Dr. Greenberg’s FMLA
interference claim, holding that this claim fails because it sounds entirely in retaliation. In the
alternative, the district court held that Dr. Greenberg failed to establish a prima facie case of
interference by not adducing evidence sufficient for a reasonable factfinder to conclude that he
was denied a benefit to which he was entitled. We affirm on the basis of the latter holding, and
need not address the former.
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Defendant-Appellee HHC argues on appeal that it does not qualify as Dr. Greenberg’s “joint
employer” under either Title VII or the FMLA. Because we affirm the district court’s decision on other
grounds, we assume, without deciding, that HHC qualifies as a “joint employer” for purposes of Dr.
Greenberg’s claims.
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The FMLA entitles eligible employees to twelve workweeks of unpaid leave per year “to
care for [a] spouse, or a son, daughter, or parent . . . , if such spouse, son, daughter, or parent has
a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). Under the FMLA, an employer may
neither interfere with an employee’s exercise of this entitlement nor retaliate against an employee
for exercising this entitlement. See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d
158, 166 (2d Cir. 2017). This Court has explained the distinction between claims of
“interference” and claims of “retaliation” under the FMLA as follows:
In a general sense, an employee brings an “interference” claim when her employer
has prevented or otherwise impeded the employee’s ability to exercise rights under
the FMLA. . . . “Retaliation” claims, on the other hand, involve an employee
actually exercising her rights or opposing perceived unlawful conduct under the
FMLA and then being subjected to some adverse employment action by the
employer. . . . The two types of claims serve as ex ante and ex post protections
for employees who seek to avail themselves of rights granted by the FMLA.
Id. (citations omitted). To establish a prima facie case of interference with FMLA rights, a
plaintiff must demonstrate that: (1) “she is an eligible employee under the FMLA”; (2) “the
defendant is an employer as defined by the FMLA”; (3) “she was entitled to take leave under the
FMLA”; (4) “she gave notice to the defendant of her intention to take leave”; and (5) “she was
denied benefits to which she was entitled under the FMLA.” Graziadio v. Culinary Inst. of Am.,
817 F.3d 415, 424 (2d Cir. 2016).
Here, even assuming arguendo that Dr. Greenberg’s interference claim is appropriately
aimed at allegations concerning the ex ante denial of his request for FMLA leave, rather than
allegations concerning the ex post adverse employment actions to which he was allegedly
subjected for taking FMLA leave, we agree with the district court that Dr. Greenberg has not
adduced evidence sufficient for a reasonable factfinder to conclude that he was denied a benefit to
which he was entitled. Although it is disputed whether Dr. Greenberg asked Dr. Pulitzer to take
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two days of FMLA leave in the first instance, it is undisputed that SUNY granted Dr. Greenberg
the full amount of time he requested as “sick leave.” App’x at 273–74; see 29 U.S.C. §
2612(d)(2)(B) (permitting an employer to “substitute any . . . accrued paid . . . medical or sick
leave of the employee for leave provided under” the family-care provision of the statute). It is
also undisputed that Dr. Greenberg was fully compensated for both days. We therefore conclude
that the district court did not err in granting summary judgment to Defendants as to Dr.
Greenberg’s FMLA interference claim.
B. FMLA Retaliation
The district court also granted the Defendants summary judgment as to Dr. Greenberg’s
FMLA retaliation claim, holding that: Dr. Greenberg failed to establish a prima facie case of
retaliation under the FMLA because he could not show that he exercised rights protected by the
FMLA, Defendants proffered a legitimate, non-discriminatory reason for terminating Dr.
Greenberg’s employment, and Dr. Greenberg failed to rebut Defendants’ proffered explanation
with evidence of pretext. We affirm on the last of these grounds.
We analyze FMLA retaliation claims under the familiar burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Graziadio, 817 F.3d
at 429. To establish a prima facie case of retaliation under the FMLA, a plaintiff must
demonstrate that: (1) she “exercised rights protected under the FMLA”; (2) she “was qualified for
[her] position”; (3) she “suffered an adverse employment action”; and (4) “the adverse
employment action occurred under circumstances giving rise to an inference of retaliatory intent.”
Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004). However, Dr. Greenberg
maintained that he did not take FMLA leave for September 4 and September 5 but actually took
sick leave because of his back injury.
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If the plaintiff makes out a prima facie case, “the defendant must demonstrate a legitimate,
non-discriminatory reason for its actions.” Graziadio, 817 F.3d at 429. “[T]he plaintiff must
then show that [the] defendant’s proffered explanation is pretextual.” Id. The plaintiff may
satisfy this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer’s proffered” reason, id. at 430 (internal quotation marks omitted),
or by providing evidence such that a reasonable factfinder could conclude that the prohibited
reason was a “motivating factor” in the adverse employment action, see Woods, 864 F.3d at 168–
69.
Here, Dr. Greenberg failed to show that Defendants’ proffered justification for terminating
his employment was a mere pretext. Defendants terminated Dr. Greenberg’s employment
because he attached inappropriate, unapproved attestations to the charts of over 180 KCHC
patients. Dr. Greenberg does not demonstrate any weaknesses in this justification. See
Graziadio, 817 F.3d at 430. To the contrary, the record overwhelmingly reflects that Dr.
Greenberg’s conduct was flagrant and that it exposed SUNY and KCHC to serious legal and
financial liabilities. Indeed, the incident was so serious that KCHC’s Chief Medical Officer and
individuals within KCHC’s Risk Management Department, who had no role in the denial of Dr.
Greenberg’s request for leave, instructed Dr. Pulitzer to consider convening a medical board
hearing to revoke Dr. Greenberg’s medical credentials altogether. Dr. Greenberg moreover fails
to adduce evidence sufficient for a reasonable factfinder to conclude that his request for leave was
a “motivating factor” in his termination. Woods, 864 F.3d at 168–69. Ultimately, on these
facts, a reasonable factfinder could conclude only that Defendants terminated Dr. Greenberg’s
employment because of the attestation incident. Cf. Sista v. CDC Ixis North Am., Inc., 445 F.3d
161, 175 (2d Cir. 2006) (noting that the “‘FMLA is not a shield to protect employees from
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legitimate disciplinary action by their employers if their performance is lacking in some manner
unrelated to their FMLA leave’” (quoting Geromanos v. Columbia Univ., 322 F. Supp. 2d 420,
429 (S.D.N.Y. 2004))). We therefore conclude that the district court did not err in granting
summary judgment to Defendants on Dr. Greenberg’s FMLA retaliation claim.
C. Title VII
The district court held that Dr. Greenberg failed to establish prima facie discrimination
claims because the circumstances surrounding Defendants’ failure to promote him and their later
decision to terminate his employment do not give rise to an inference of discrimination based on
Dr. Greenberg’s religion. Like the FMLA retaliation claim above, we examine Title VII
employment discrimination claims under the burden-shifting framework set out in McDonnell
Douglas, 411 U.S. at 802–04. Consequently, a Title VII plaintiff asserting discrimination must
first present a prima facie case by establishing that: “(1) she is a member of a protected class; (2)
she is qualified for her position; (3) she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.” Weinstock v. Columbia Univ., 224
F.3d 33, 42 (2d Cir. 2000). The burden then shifts to the defendant to “rebut that showing by
articulating a legitimate, non-discriminatory reason for the employment action.” Id. “[T]he
plaintiff must then come forward with evidence that the defendant’s proffered, non-discriminatory
reason is a mere pretext for actual discrimination.” Id.We agree with the district court that Dr. Greenberg failed to adduce evidence from which
a reasonable factfinder could infer discrimination. Plaintiff’s discrimination claims rely wholly
upon a declaration alleging that Dr. Reede made various disparaging remarks, including remarks
disapproving of prayer meetings among Jewish physicians at work and suggesting she “wished
she were Jewish” so she could take additional holidays. App’x at 815–16. For several reasons,
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these alleged remarks alone are insufficient for Dr. Greenberg to establish that the circumstances
give rise to an inference of discrimination. First, Dr. Reede made the alleged remarks at least six
months prior to Defendants’ failure to promote Dr. Greenberg and at least ten months prior to the
termination of his employment. See Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir.
2010) (instructing courts to consider “when [a] remark was made in relation to the employment
decision at issue”). Second, Dr. Greenberg offers no evidence connecting the alleged remarks to
any employment decisions that Dr. Reede made. See id. (instructing courts to consider “the
context in which [a] remark was made” and “whether it was related to the decision-making
process”). Third, Dr. Reede promoted several Jewish physicians during the relevant time period.
Cf. James v. N.Y. Racing Ass’n, 233 F.3d 149, 152–53 (2d Cir. 2000) (declining to draw an
inference of age discrimination where the employer hired two employees near the same age as the
plaintiff during the relevant time period). Fourth, Dr. Reede renewed Dr. Greenberg’s contract
shortly before the alleged adverse employment actions, although she could have declined to do so
without cause. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). Last, with
respect to Dr. Greenberg’s failure to promote claim, Dr. Greenberg does not otherwise raise an
inference of discrimination based upon disparate treatment because he is not similarly situated in
all material respects to the doctor who obtained the position in his stead. See Graham v. Long
Island R.R., 230 F.3d 34, 38–39 (2d Cir. 2000). We therefore conclude that the district court did
not err in granting summary judgment to Defendants on Dr. Greenberg’s Title VII claims averring
discrimination based on his religion.
D. State Law Claims
Because the district court properly dismissed Dr. Greenberg’s federal claims, it did not
abuse its discretion in declining to exercise supplemental jurisdiction over his remaining state law
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claims. See N.Y. Mercantile Exch., Inc. v. IntercontinentalExchange, Inc., 497 F.3d 109, 119 (2d
Cir. 2007) (“In general, where the federal claims are dismissed before trial, the state claims should
be dismissed as well.” (internal quotation marks omitted)).
* * *
We have considered Plaintiff’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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