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finding "testimony . . . based on [another employee's] 'impression'" was "not sufficient to show but-for causation" and collecting cases so holding
Summary of this case from Hess v. Mid Hudson Valley Staffco LLCOpinion
No. 16-CV-1966 (KMK)
07-20-2018
MICHAEL P. ROMAIN, Plaintiff, v. GREAT EXPRESSIONS DENTAL OF NEW YORK LLP, f/k/a Great Expressions Dental Centers of New York, LLP, Defendant.
Appearances: Cathleen Scott, Esq. Scott Wagner & Associates, P.A. Jupiter, FL Counsel for Plaintiff Marc. D. Wolfe, Esq. Young Basile Hanlon & MacFarlane, PC Troy, MI Counsel for Defendant
OPINION & ORDER
Appearances:
Cathleen Scott, Esq.
Scott Wagner & Associates, P.A.
Jupiter, FL
Counsel for Plaintiff Marc. D. Wolfe, Esq.
Young Basile Hanlon & MacFarlane, PC
Troy, MI
Counsel for Defendant KENNETH M. KARAS, District Judge:
Plaintiff Michael P. Romain ("Plaintiff") brought this Action against his former employer, Great Expressions Dental of New York LLP ("Defendant" or "GE"), alleging that it constructively discharged him because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, and the New York Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. (Compl. (Dkt. No. 1).) Before the Court is Defendant's Motion for Summary Judgment. (Notice of Mot. For Summ. J. (Dkt. No. 56).) For the following reasons, the Motion is granted.
I. Background
A. Factual Background
The following facts are taken from Defendant's statement pursuant to Local Civil Rule 56.1, (Def.'s Rule 56.1 Statement ("Def.'s 56.1") (Dkt. No. 58)), Plaintiff's response to Defendant's 56.1 statement, (Pl.'s Resp. to Def.'s 56.1 Statement ("Pl.'s 56.1") (Dkt. No. 60)), and the exhibits submitted by both Parties, (Def.'s Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Mem.) Exs. (Dkt. No. 57); Pl.'s Exs. In Supp. of Opp'n to Mot. for Summ. J. ("Pl.'s Exs.") (Dkt. No. 61)), and are recounted in the light most favorable to Plaintiff, the non-movant. The facts as described below are not in dispute unless indicated otherwise.
In early 2012, Defendant purchased the New York-based dental chain Exceldent. (Def.'s 56.1 ¶ 1.) At that time, Plaintiff was 72 years old and an employee of Exceldent. (Id. ¶¶ 2-3.) He was a highly competent dentist without performance issues. (Pl.'s 56.1 at 10 ¶ 1.) Defendant was not obligated to offer employment to Plaintiff. (Def.'s 56.1 ¶ 4.) Plaintiff signed an Employment Agreement with Defendant under which he was employed as a part-time general dentist. (Def.'s Mem. Ex. E ("Employment Agreement") § 1; id. Ex. 1 ("Office Hours Assigned"); see also Def.'s 56.1 ¶ 19.) The Employment Agreement required Plaintiff to work "at such place or places and on such days as well as the hours during the day, as the Corporation may direct," which were assigned as three days per week—Monday, Tuesday, and Thursday—in the Middletown office. (Employment Agreement § 3(b); id. Ex. 1.) Plaintiff also requested the inclusion of a provision in the Agreement under which he would be guaranteed an equal share of new patient assignments, (Def.'s 56.1 ¶ 7), "through the gamut down to the low reimbursement patients," (Pl.'s 56.1 ¶ 7). Defendant refused to include such a provision, and Plaintiff signed the contract knowing that it was not included. (Def.'s 56.1 ¶ 8 (citing Pl.'s Ex. 19 ("Pl.'s Dep.") 83).) However, Plaintiff had a conversation with Todd Gustke, the Vice President of Human Resources, who told Plaintiff that this issue "would have to be discussed at the local level" and answered with "a verbal response." (Pl.'s Dep. 67, 82-83.) Defendant also hired Dr. George Kolbe, another former Exceldent employee in his 70s. (Def.'s 56.1 ¶ 5.)
Plaintiff claims he "included this handwritten bullet point on the contract," (Pl.'s 56.1 ¶ 8), but he testified at his deposition that this handwriting was "in connection with this lawsuit," and that Defendant "never entered [the guarantee] into the contract," (Pl.'s Dep. 82-83).
Defendant maintains a practice of trying to send new patients to new doctors because "they don't have an established patient base" like existing doctors "in which to do exams and find treatment." (Pl.'s Ex. 15 ("Kim Dep.") 56-57; see also Def.'s Mem. Ex. C ("Ogden Dep.") 182 ("We normally funnel new patients through the doctors that are just joining our practice.").) This practice is in place in at least three other GE facilities, where new patients were assigned to older doctors who were newer to that facility or with less established patient bases than their younger colleagues. (Ogden Dep. 182-84.) Dr. Paul Kim, the clinical partner at GE, testified that he "treat[s] any new doctor coming in the same way," regardless of their age, (Kim Dep. 56), but also testified that that he could not say whether there was any consideration of the dentists' ages in assigning new patients in 2012 or 2013 or how they were assigned to the dentists in comparison to one another—such as "randomly, equally or through some other system," (id. at 15-16).
The management team responsible for patient assignment practices at GE was the same at Exceldent, through the acquisition, and during Plaintiff's time with GE. (Def.'s 56.1 ¶ 29.) Christine Troeller-Reed, a dental hygienist formerly employed by Defendant who worked with Plaintiff, testified that they "were told not to give Dr. Kolbe or [Plaintiff] new patients" by Ogden and Marisa Dolce, the hygienists' supervisor, and that the patients should be going to "Dr. John or whatever doctors were there." (Pl.'s Ex. 20 ("Troeller Dep.") 8-10.) Similarly, Kim testified that he could "say that [patients] probably at that time w[e]re not assigned equally" to the dentists, because Dr. Oglesbee, a new doctor, started without "an established base," so Defendant "wanted to make sure [it] stacked his schedule [to] try to get him busy." (Kim Dep. 16; see also Troeller Dep. 11 (testifying that she was told that "[GE] wanted to get rid of the older hygienists and dentists. But, as [i]n older, I mean from ExcelDent. I don't know if it was necessarily age, but definitely people who were there longer than the new people," including herself); Pl.'s Ex. 16 ("Kolbe Dep.") 24-26 (testifying that he "heard from one hygienist . . . that they were instructed to give the new patients over to the younger guys," which "made logical sense . . . because you have two old doctors who have established practices of 25, 30 years" and "don't need new patients," whereas the "[n]ew guys coming on from scratch, they need patients"); id. at 33 ("The motivation was to give as many patients [as] they can to the new younger doctors.").) However, Oglesbee did not begin working in the Middletown office until November 2012. (Pl.'s Ex. 18 ("Oglesbee Dep.") 16.) At least one dentist testified that Oglesbee "was busy in the beginning." (Pl.'s Ex. 14 ("John Dep.") 26.) Dr. John, by contrast, had already been working at Middletown for a full year before GE purchased the facility, and already had a "busy" practice with existing patients, including some who followed him to Middletown. (Id. at 6, 22; see also Troeller Dep. 12-13; Pl.'s Ex. 17 ("Moshier Dep.") 15; Oglesbee Dep. 33; Kolbe Dep. 28; Pl.'s Ex. 11 ("Destefano-Christie Dep.) 12).)
Plaintiff claims to dispute this "in part," but instead cites testimony that either (1) Plaintiff was not being assigned new patients even before the acquisition of Exceldent or (2) the policies changed when GE took over. (Pl.'s 56.1 ¶ 29.)
Defendant contends that Plaintiff also received fewer new patients than Drs. Oglesbee and John because Plaintiff refused to treat patients with insurance plans that provided lower reimbursement rates to the dentists and directed that patients with these insurance plans be removed from his schedule. (Def.'s 56.1 ¶¶ 17-18.) Plaintiff disputes this, claiming he requested a guarantee in his contract that he would have a share of new "low reimbursement patients," (Pl.'s 56.1 ¶ 17), and that he signed up for all of the insurance that GE required, but there was no subsequent change in his schedule or patient load, (id. ¶ 18.) Defendant also claims that Plaintiff frequently left the office early and took substantial vacation time. (Def.'s 56.1 ¶¶ 20-21.) Plaintiff disputes this by citing the testimony of his assistant, Jacqueline Moshier, that she never had any issues with Plaintiff not showing up on time, taking sudden absences, or any other issues with his schedule. (Moshier Dep. 6-7.) Further, Kim testified that Plaintiff never took any unauthorized vacation time, never overused vacation time, and that he was not aware of any vacation time causing a problem with Plaintiff seeing new patients. (Kim Dep. 102-03.)
Defendant also alleges that Plaintiff refused to attend meetings where additional treatment opportunities were discussed and planned. (Def.'s 56.1 ¶ 22.) Plaintiff disputes this, claiming he was unaware of such meetings and such an allegation is "mendacious." (Pl.'s Dep. 138-40.) Defendant claims that Plaintiff refused to see hygiene patients who were in the office when he had gaps in his schedule, (Def.'s 56.1 ¶ 23), but Plaintiff disputes this, citing Moshier's testimony that Plaintiff "would see anybody that was scheduled in his schedule," she never heard him say he would not see a certain type of patient, and she never saw him reject an opportunity where a hygienist had someone in the chair that needed a dental exam, (Pl.'s 56.1 ¶ 23 (citing Moshier Dep. 15-17)). It is undisputed, however, that Plaintiff refused Defendant's requests to work additional hours. (Def.'s 56.1 ¶ 24.)
During his time with GE, Plaintiff complained to both Kim and Betty Ogden, the Regional Practice Administrator, that he felt he was not getting enough new patients. (Pl.'s Ex. 12 ("Douglas Dep.") 13-14).) However, Plaintiff testified that he "never did" mention age as the reason he was not getting patient access or referrals in these complaints. (Pl.'s Dep. 79.) Specifically, Plaintiff emailed Ogden on March 8, 2012, asking: "Now that Great Expressions owns our office, when can I expect the moratorium to be lifted on seeing new patients?" (Pl.'s Ex. F.) Ogden responded that day that she would "certainly discuss" this issue with GE "next week," and asked "[w]ould you be willing to go on insurances?" (Id.) Plaintiff responded: "We know that GE will want all their docs on all insurances so we'll have no choice. Sign me up if that's what it will take!" (Id.) On April 30, Plaintiff again emailed Ogden:
Plaintiff also testified that "[a]ge was never mentioned" in the assignment of patients during the first couple months after GE acquired Exceldent, and that age discrimination was not the reason he was not getting an equal share of patient referrals during those months. (Pl.'s Dep. 169-70.) However, Plaintiff testified that GE's motive changed when he "signed up for all the insurance plans and yet things didn't change" with his schedule or patient load. (Id. at 170-71.)
Dr. Kolbe and I printed out a new patient report for the month of April 2012.(Pl.'s Ex. I at 2.) Ogden responded that she was speaking with Patty Douglas, the Middletown office manager, "regarding the new patients." (Id. at 1.) She also noted that Plaintiff's taking two weeks off in April and the fact "that Dr. John works many more hours, is here on Saturdays, takes all plans, and has a huge following," are likely contribute to his seeing more new patients. (Id.) Additionally, Ogden explained that Plaintiff is "not credentialed on the [new insurance] plans yet, with the exception of Fitzharris, which was effective April 1st," because "[m]any take up to [two] months," but that both the hygienists and front desk were made aware of Plaintiff's credentials. (Id.) Plaintiff responded:
I received 2 new patients.
Dr. Kolbe received 2 new patients.
Dr. John received 61 new patients.
I thought the moratorium was lifted according to an email you sent me in March after talking with Burt. Questioning the hygienists, none have been informed that we all are to see new patients as well. I'm not sure how pleased GE would be with these facts unless they too are on board with the inequity. I think Dr. Kolbe and I would like to meet with you to discuss GE's position on this matter.
I am aware that I have yet to be credentialed in the lower insurance plans, yet there are new patients arriving into the practice that are covered by plans I have been credentialed into for many years. Certainly Dr. John has a large following for a number of reasons, one of which was the directive that he is assigned to all the new patients that come to our office. Anyway, let's see what May will bring. As for time off in April, I missed 5 days—April 2, 3, 5, 9, 10.(Id.) Finally, on June 24, 2013, Plaintiff emailed Ogden stating that he decided not to come in on Thursday, June 20, 2013 because he had called Douglas to confirm his patient schedule and "reviewed the hygiene schedule" and there were only two of his patients scheduled, who "historically need no dentistry," and that "Dr. John would have been called in for the other patients" because "[t]he hygienists are scared to call [Plaintiff] in because they have been warned by Dr. Kim not to ask [him] to do exams." (Id. at 5.)
Plaintiff also emailed Kim on November 29, 2012 with similar complaints:
I need some help understanding my position with Great Expressions, Middletown office. I was requested by you that I stay late one evening a week with the premise that the evening hours can be productive. This of course has not been the case as I suspected. This past Tuesday, for instance, I had no patients scheduled to see me from 2 PM till 7 PM, yet I stayed. This is just one example and I have kept a haphazard account of my late night schedule and this past Tuesday has followed the trend. Additionally I am asked to stay late yet I am not allowed to see new patients. Don't you think there should be some 'give and take' here. I understand your plate is full but I[] would appreciate it if you could address these issues with me.(Id. at 4; see also Kim Dep. 46-48 (acknowledging that Plaintiff complained about "new patients").) Plaintiff "communicated to" Kim that he was coming in and sitting on his Kindle for hours with nothing to do, after which Kim notified Ogden to "see if there was some way [they] c[ould] placate him during the time [they] were trying to get Dr. Oglesbee established," because he "like[s] a balance." (Kim Dep. 48.) However, despite Plaintiff's complaints, new patients were continuously assigned in favor of Dr. John and Dr. Oglesbee, aged 36 and 48, respectively, and not Plaintiff and Dr. Kolbe. (Pl.'s 56.1 ¶ 10 (citing Pl.'s Ex. B).)
The Parties dispute the significance of new patients to dentists at the GE Middletown office. Defendant contends that "[n]ew patients represent a small fraction of the treatment opportunities available to dentists" at the office. (Def.'s 56.1 ¶ 13.) Plaintiff argues that "[n]ew patients are the lifeline of a productive and profitable practice," because Plaintiff's compensation was solely commission based on production, requiring a steady flow of new patients. (Pl.'s 56.1 ¶ 13.) However, Plaintiff made more income in 2012, his first year with GE, than he made in 2011 with Exceldent. (Def.'s 56.1 ¶ 25.) Plaintiff was compensated with a higher percentage of the revenue he generated than any other Middletown dentist, (id. ¶ 26), although he received a smaller percentage of new patients than Drs. John and Oglesbee, (Pl.'s Ex. B), who were both full-time employees, (Def.'s 56.1 ¶ 27).
Plaintiff resigned his employment with Defendant in August 2013, and later testified that he "guess[ed] [he] was retiring." (Pl.'s Dep. 36; see also id. at 27 (same).) He and his wife moved to the home they owned in Florida because Plaintiff had "no income coming in" and could not afford the expense of an apartment in New York and a home in Florida. (Id. at 42-43.) Plaintiff contends that he was constructively terminated, explaining in his deposition:
There was no future. I couldn't see a future. I had no communication. No one would respond to my e-mails so I just did not see a future.(Id. at 153-54.) Defendant contends that Plaintiff refused to treat any new patients toward the end of his employment, (Def.'s 56.1 ¶ 30), but Plaintiff argues that it is not clear whether this occurred after he gave his notice and that this only occurred in his last couple months, (Pl.'s 56.1 ¶ 30).
[. . .]
[T]o go to an office - to my office, was my office at one time, to sit for eight hours and do absolutely nothing except read a Kindle reader while other dentists - Dr. John was seeing oral examinations, patients would call the office for [an] emergency, he would be seeing those emergencies and I would be sitting and no one would call me. Now, how long do I have to [do] this? Why is - what is the reason for this, so.
B. Procedural History
Plaintiff filed the Complaint on March 16, 2016. (Compl.) Defendant filed an Answer on April 21, 2016. (Answer (Dkt. No. 10).) This Action was referred to mediation, which was unsuccessful. (Dkt. No. 22.) On November 29, 2016, the Court held an initial conference and set a discovery schedule. (See Dkt. (entry for Nov. 29, 2016).) On April 28, 2017, Defendant filed a pre-motion letter indicating the grounds on which it would move for summary judgment. (Letter from Marc. D. Wolfe, Esq. to Court (April 28, 2017) (Dkt. No. 41).) Plaintiff filed a response, but the Court granted Defendant's motion to strike it for failure to comply with the Court's rules. (Dkt. No. 47.) Plaintiff requested leave to oppose the pre-motion letter on May 11, 2017. (Letter from Cathleen Scott, Esq. to Court (May 11, 2017) (Dkt. No. 50).)
The Court held a pre-motion conference on June 16, 2017 and adopted a briefing schedule. (See Dkt. (entry for June 16, 2017); Dkt. No. 52.) Both Parties made errors in filing their papers. (See Dkt. No. 53 (filing motion papers on July 28, 2017); Dkt. No. 54 (filing opposition papers on August 31, 2017).) The instant Motion for Summary Judgment and accompanying papers were actually docketed on September 15, 2017. (Not. of Mot; Def.'s Mem.; Def.'s 56.1) Plaintiff filed an opposition and accompanying papers the same day, (Pl.'s Mem.; Pl.'s 56.1; Pl.'s Exs.), and Defendant filed its reply the same day, (Def.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. ("Def.'s Reply") (Dkt. No. 62)).
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that "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); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). "It is the movant's burden to show that no genuine factual dispute exists." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, "[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to create more than a 'metaphysical' possibility that his allegations were correct; [s]he need[s] to 'come forward with specific facts showing that there is a genuine issue for trial,'" Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), "and cannot rely on the mere allegations or denials contained in the pleadings," Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) ("When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . ."). Indeed, "[w]hile summary judgment must be granted with caution in employment discrimination actions, . . . a plaintiff must prove more than conclusory allegations of discrimination to defeat a motion for summary judgment." Aspilaire v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 302 (S.D.N.Y. 2009) (citations and internal quotation marks omitted).
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims." Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). However, a court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). "[W]here a party relies on affidavits . . . to establish facts, the statements 'must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.'" DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)).
B. Analysis
Plaintiff claims that Defendant violated the ADEA and the NYSHRL by giving him fewer new patients than younger dentists, thereby depriving him of income and constructively discharging him. (See generally Compl.) See 29 U.S.C. § 623(a)(1) ("It shall be unlawful for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."); N.Y. Exec. Law § 296(1)(a) (same, but describing it as "an unlawful discriminatory practice" for the employer to do this). Both of these claims are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (noting that the Second Circuit "remain[s] bound by . . . the burden-shifting framework [from McDonnell Douglas] for ADEA cases"); Kassel v. City of Middletown, 272 F. Supp. 3d 516, 535 (S.D.N.Y. 2017) ("[T]he Second Circuit analyzes claims pursuant to NYSHRL under the familiar three-part framework set forth by the Supreme Court in McDonnell Douglas.").
Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination; it is then the defendant's burden to proffer a legitimate non-discriminatory reason for its actions; the final and ultimate burden is on the plaintiff to establish that the defendant's reason is in fact pretext for unlawful discrimination.Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014). However, for ADEA claims, at the third step, a plaintiff must show that the discriminatory motive "was a but for cause of" the adverse employment action, rather than merely a motivating factor. See McCormack v. IBM, 145 F. Supp. 3d 258, 266 (S.D.N.Y. 2015) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 173 (2009)). "Whether that same heightened standard applies to the NYSHRL remains an open question within the Second Circuit, though th[e] [Second Circuit] has 'assumed, without deciding, that the Supreme Court's Gross decision affects the scope of the NYSHRL law as well as the ADEA.'" Digilov v. JPMorgan Chase Bank, N.A., No. 13-CV-975, 2015 WL 685178, at *10 (S.D.N.Y. Feb. 18, 2015) (citation and alterations omitted) (quoting Gorzynski, 596 F.3d at 105 n.6); see also Marcus v. Leviton Mfg. Co., Inc., 661 F. App'x 29, 33 (2d Cir. 2016) (same).
Defendant argues that it is entitled to summary judgment because Plaintiff cannot establish a prima facie case of age discrimination and, even if he can, he cannot show that Defendant's proffered non-discriminatory reasons for its actions were a pretext for age discrimination. (See Def.'s Mem. 5-22.) The Court will address each argument separately.
1. Prima Facie Case
To establish a prima facie case of age discrimination, a plaintiff must show (1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he experienced an adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination. See Gorzynski, 596 F.3d at 107; Parron v. Herbert, No. 17-CV-3848, 2018 WL 2538221, at *5 (S.D.N.Y. May 18, 2018). Defendant argues that Plaintiff failed to raise a dispute of material fact as to the third and fourth elements. (Def.'s Mem. 5-14.)
To satisfy the adverse employment element, Plaintiff claims that he was constructively discharged by Defendant—in other words, he was forced to retire because he was not making an income without commissions from new patients. (Compl. ¶ 61; Pl.'s Mem. 17-20.) "An employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily." Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003). "The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004); see also Pfizenmayer v. Hicksville Pub. Sch., 700 F. App'x 64, 65 (2d Cir. 2017) (same) (citing Green v. Brennan, 136 S. Ct. 1769, 1776 (2016)). This "standard is demanding and it will not be satisfied based on difficult or unpleasant working conditions or the plaintiff's preference to no longer work for [his] employer." Collazo v. Cty. of Suffolk, 163 F. Supp. 3d 27, 45 (E.D.N.Y. 2016) (internal quotation marks omitted); see also Nicholls v. Philips Semiconductor Mfg., 760 F. Supp. 2d 407, 416 (S.D.N.Y. 2011) (noting that the plaintiff's "burden is not an easy one to carry" and "success does not depend upon the plaintiff's subjective beliefs" (alterations and internal quotation marks omitted)).
Plaintiff argues that he was constructively discharged because he was dependent on new patients for income, and "[n]o reasonable employee would come to work without the prospect of getting paid." (Pl.'s Mem. 18-20.) It is undisputed that Plaintiff's Employment Agreement required him to work three days a week, for 23 hours a week, and that Plaintiff would be paid based solely on production—that is, commission, not salary; however, the Agreement provides that Plaintiff would receive a $72,000 "annual draw" in the form of a true-up payment in the event that his commissions did not equal or exceed $72,000. (Employment Agreement § 4(e); id. Ex. 1; Pl.'s Dep. 68-69.) Plaintiff also received a higher percentage of the revenue he generated than any other Middletown dentist. (Def.'s 56.1 ¶ 26.) It is undisputed that Plaintiff's income in 2012, his first year with GE, was "almost identical to what [he] made the year before at ExcelDent"—approximately $82,000—and that Plaintiff, after earning $54,283 for the nine months he worked in 2013 before resigning, was on pace to make approximately $10,000 less than he made in 2012—in other words, approximately $72,000. (Pl.'s Dep. 49-52.) Furthermore, Plaintiff knew that the Agreement explicitly did not contain a provision guaranteeing him an equal share of new patient assignments. (Def.'s 56.1 ¶¶ 7-8.) Indeed, according to his own testimony, Plaintiff had already begun to lose access to new patients and income before Defendant acquired ExcelDent—yet Plaintiff did not resign from ExcelDent and still signed a contract with Defendant. (See Pl.'s Dep. 54-55, 145-47; compare Pl.'s Mem. 8 ("In early 2012, even before GE purchased Exceldent, [Plaintiff] was not being assigned new patients.") with id. at 18 ("The Court . . . must consider [Plaintiff's] reduction in commission and his reasonable expectation that he would . . . be able to continue to make a living as he had for approximately 45 years.").) See Butts v. N.Y.C. Dep't Of Hous. Pres. And Dev., No. 00-CV-6307, 2007 WL 259937, at *20 (S.D.N.Y. Jan. 29, 2007) ("[W]hen a plaintiff remains in a position after conduct which is allegedly designed to force him or her to resign, it undermines any claim of intolerable working conditions."), aff'd, 307 F. App'x 596 (2d Cir. 2009).
Defendant argues that "Plaintiff made more in 2012" than in 2011, and Plaintiff does not dispute this. (Def.'s Mem. 7; Def.'s Reply 2.) However, the amount stated for 2011—$81,856—does not appear in the cited deposition pages, and Plaintiff's W-2s are not in the record.
Therefore, construing all the facts in the light most favorable to Plaintiff, no reasonable juror could conclude that this reduction in pay—at most a total of $10,000 for one year, assuming he had completed his second year with GE, to result in the guaranteed amount covered in his contract—created "working conditions . . . so intolerable that a reasonable person in [Plaintiff's] position would have felt compelled to resign." Pennsylvania State Police, 542 U.S. at 141. Simply put, while Plaintiff alleges that he subjectively "fe[lt] [he] was not compensated enough" and that "$72,000 [was not] adequate" because he had "the potential of doing more," (Pl.'s Dep. 53-54; see also Pl.'s Mem. 5 (explaining that Plaintiff was "starved out" because "[h]e could no longer afford his expensive New York apartment" and the condominium he owned in Florida)), this is insufficient to constitute constructive discharge, see Stetson v. NYNEX Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (finding no constructive discharge even "though [the plaintiff] was dissatisfied with his assignments, and apparently with his compensation"); Bailey v. Synthes, 295 F. Supp. 2d 344, 348, 355 (S.D.N.Y. 2003) (noting that the plaintiff's reduced income, which she testified she believed would constitute "a 50% reduction of her income," was "hardly an offensive level of compensation" and that, even coupled with the employer's criticisms of her performance, was not constructive discharge); see also Jurgens v. E.E.O.C., 903 F.2d 386, 392 (5th Cir. 1990) ("[A] slight decrease in pay coupled with some loss of supervisory responsibilities is insufficient to constitute a constructive discharge."). Indeed, the cases finding constructive discharge from loss of pay all either involve (1) much bigger pay cuts than the one at issue here, in contravention of a set salary or agreement, or (2) other evidence of discriminatory intent. See Pennsylvania State Police, 542 U.S. at 134 (noting an "extreme cut in pay" as an example of an adverse action); Stokes v. City of Mount Vernon, N.Y., No. 11-CV-7675, 2012 WL 3536461, at *7 (S.D.N.Y. Aug. 14, 2012) ("A severe reduction in pay may constitute a constructive discharge."); Butts, 2007 WL 259937, at *20 ("A single reduction in pay, without additional evidence of malicious intent, is insufficient to establish a claim of constructive discharge."); Hogan v. Metromail, 107 F. Supp. 2d 459, 469 (S.D.N.Y. 2000) ("A reduction in pay combined with the elimination of substantial employment benefits like sales overrides may constitute such hardship and, combined with evidence of deliberate intent, establish constructive discharge."). This also applies to all of the cases cited by Plaintiff. (Pl.'s Mem. 17-18.) See Scott v. Harris Interactive, Inc., 512 F. App'x 25, 28 (2d Cir. 2013) (noting that the plaintiff's "salary was reduced by $70,000, approximately one third of his original salary" and in spite of "the parties' agreement to a $220,000 salary for at least a year"); Kirsch v. Fleet St., Ltd., 148 F.3d 149, 161-62 (2d Cir. 1998) (explaining that the employer "cut[] [the plaintiff's] salary to less than 45% of what he had been earning, i.e., from $60,000 to $26,000," and took an account from him that "accounted for 40-45% of [the plaintiff's] sales," which "essentially ended [his] prospects for additional earnings," and concluding that "the severity of the reduction in compensation" and the fact that a supervisor "nodded in response to [the plaintiff']s statement that the company was trying to force him to leave" amounted to constructive discharge (italics omitted)); Morris v. N.Y.C. Dep't of Sanitation, No. 99-CV-4376, 2003 WL 1739009, at *5 (S.D.N.Y. Apr. 2, 2003) (finding sufficient allegations that the defendant "told [the plaintiff] that if he did not retire, he would be demoted down two levels resulting in a salary reduction of approximately $25,000 [from $89,000] and attendant dilution of future pension benefits"); Fogarty v. Near N. Ins. Brokerage Co., No. 96-CV-1637, 1997 WL 799112, at *2 (S.D.N.Y. Dec. 30, 1997) (finding that the jury had sufficient evidence to find constructive discharge where the defendant "contravened the employment contract by withholding bonus payments which comprised half of [the] [p]laintiff's expected salary").
Plaintiff cites Moshier's testimony that she believed Plaintiff was not getting new patients because "they wanted to push him out of here," (Moshier Dep. 12-13), but she does not explain why she thought this. In any event, Moshier's subjective belief is insufficient to show that a reasonable person would have felt constructively discharged in Plaintiff's position. See Hester v. BIC Corp., 225 F.3d 178, 184 (2d Cir. 2000) (finding testimony by co-workers that decisionmaker was motivated by race discrimination inadmissible because it was based on their "subjective impressions" and not personal knowledge of the decisionmaking process).
To the extent Plaintiff relies on Scott, an unpublished summary order, for the proposition that "[t]he percentage of [the] reduction and the reasonable expectations of the parties are . . . relevant" to the constructive discharge analysis, this proposition does not aid Plaintiff, who at most received a 10%-not 33%-pay cut and was still on track to receive the minimum amount provided for in his contract. Scott, 512 F. App'x at 28. Indeed, Plaintiff testified that he had not made a significantly higher salary since 2008 or 2009, years before Defendant hired him and before he began working part-time. (Pl.'s Dep. 54.)
The two other cases Plaintiff cites are equally inapplicable here because they involved much worse facts. See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89-90 (2d Cir. 1996) (denying summary judgment motion because the plaintiff's supervisors "yelled at her in insulting terms," including saying "What do you hope for? Do you think you are going to outlive us? There is no chance! You are not going to be here!", "mocked her when she attempted to explain she was at the bottom of the pay range for her position," and "told [her that] she would be fired immediately if . . . she did not maintain satisfactory" reviews, even though "she had successfully completed probation," causing her to have a nervous breakdown); Santana v. Latino Express Restaurants, Inc., 198 F. Supp. 3d 285, 297 (S.D.N.Y. 2016) (granting motion for default judgment on constructive discharge claim where the "[p]laintiff's uncontradicted factual allegations" showed that after the plaintiff complained about the defendant's sexual harassment, the defendant assigned her "a disproportionate number of less desirable tasks" and "deliberately created difficult working conditions . . . by glaring at her, screaming at her in front of others, and reprimanding her for things she had not reprimanded her for before").
Moreover, Plaintiff concedes that any income disparity between Plaintiff and Doctors John and Oglesbee is legally irrelevant, because the latter were full-time employees who are not similarly situated to Plaintiff, a part-time employee. See Colon v. Fashion Inst. of Tech. (State Univ. of New York), 983 F. Supp. 2d 277, 289 (S.D.N.Y. 2013) (finding a "part-time and untenured" co-worker "not similarly situated to" the plaintiff and thus "not adequate comparators to show disparate treatment"); Fox v. State Univ. of New York, 686 F. Supp. 2d 225, 232 (E.D.N.Y. 2010) (explaining that "[b]ecause the plaintiff worked only part time," the "putative comparators who worked full time for the defendants . . . cannot be said to be similarly situated"). Additionally, it is undisputed that Defendant implored Plaintiff to remain with GE when he resigned. (Douglas Dep. 22 (testifying that "Douglas and [Ogden] . . . were both there" when Plaintiff tendered his resignation notice and Ogden "said 'Dr. Romain we want you to stay here, you're an excellent dentist, the patients like you.' You know, we didn't want him to leave at all."); Ogden Dep. 71 ("When Dr. Romain resigned we were quite upset about it. I remember driving down from Liberty to here and sitting down and talking with him and saying please, don't leave.").) However, Plaintiff said "I can't change my mind [even] if I want to," because the lease was up on his condo in New York and "[t]he condo in Florida was ready." (Ogden Dep. 71; id. at 152 (same).) This fact further undermines Plaintiff's constructive discharge claim. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000) (finding no constructive discharge where the defendant "demonstrated an interest in retaining the plaintiffs"); Benette v. Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 257 (W.D.N.Y. 2003) ("Evidence that an employer wanted an employee to remain in its employ seriously undermines a claim of constructive discharge.").
Plaintiff concedes that "it is not disputed Dr. John worked more hours," but contends that "he was paid a larger base for this." (Pl.'s Mem. 10 (citing Pl.'s Dep. 166).) However, Plaintiff cites no evidence for this proposition. Indeed, the record reflects that all Middletown dentists were compensated with a commission based on production, (see Kim Dep. 33; Ogden Dep. 216), and it is undisputed that Plaintiff received a higher percentage of the revenue he generated than the other dentists, (Def.'s 56.1 ¶ 26).
Plaintiff argues that he was coming to work with nothing to do while the younger doctors were seeing new patients. (Pl.'s Mem. 19-20 (citing Pl.'s Dep. 153).) "[E]vidence of a reduction in job responsibilities to the point where an employee has nothing meaningful to do with h[is] time can lead to an inference of constructive discharge; yet, a mere reduction or change in job responsibility based on the reasonable business decision of an employer does not constitute constructive discharge." Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 126 (S.D.N.Y. 1990). Plaintiff does not dispute that he forwent multiple opportunities to increase his income. (Def.'s Mem. 16-21.) First, it is undisputed that Plaintiff was unwilling to treat patients on low reimbursement insurance plans. Specifically, Ogden testified that in the morning, Plaintiff "would take the schedules and he would actually put his initials on which exams he wanted to do, because he didn't want to see patients that had lower reimbursement plans." (Ogden Dep. 184; see also id. at 186 ("He would go into the patient's record and he would see which insurance company they had. And if it was a lower reimbursement, especially for exams, he would refuse to see them."); Def.'s Mem. Ex. I ("Howard Dep.") 15 (testifying that Plaintiff asked Howard to switch patients that were on his schedule off of his schedule).) Plaintiff attempts to dispute this fact by arguing that he requested that his contract include a guarantee of equal distribution of patients, including a share of low reimbursement patients, (Pl.'s 56.1 ¶ 17 (citing Pl.'s Dep. 81-82), and that he eventually did opt in to all insurance plans, (Pl.'s Ex. F (emailing Ogden on March 8, 2012 stating "We know that GE will want all their docs on all insurances so we'll have no choice. Sign me up if that's what it will take!" and later acknowledging that as of April 30, 2012); Pl.'s Ex. I (stating that he was "aware that [he] ha[d] yet to be credentialed in the lower insurance plans"); Pl.'s Dep. 171 (testifying that he "signed up for all the insurance plans and yet things didn't change")). However, this provision was not added to his contract, (Def.'s 56.1 ¶ 8), and in any event, that Plaintiff agreed to get credentialed in low reimbursement plans does not mean he actually treated any low reimbursement patients. Indeed, Dr. John testified that "[s]ome insurance patients [Plaintiff] doesn't see, and then he'll ask [Dr. John] to see" them instead "to do a particular . . . procedure," even when "[Plaintiff] was on" the insurance. (John Dep. 15.) Ogden testified similarly, (Ogden Dep. 45-46 ("[Plaintiff] said that he would go on all of the plans. But when it came time for him to sign them he wouldn't. And he was dragging his feet. . . . [It] was an issue until he left.")), and Plaintiff's treatment records reflect that he mostly worked for higher reimbursement patients, (id. at 187). Finally, Plaintiff contends that he never complained to Moshier, his assistant, about patients' insurance plans, but again, this fact does not create a dispute regarding whether Plaintiff actually treated lower reimbursement patients. (Pl.'s 56.1 ¶ 18 (citing Moshier Dep. 17 (answering "no" to question of whether Moshier "ever hear[d] him complain that he was unhappy about getting on these insurance plans or belly aching about the types of reimbursements they had")).)
Plaintiff does not address any of these points in his counseled opposition to the Motion, even though Defendant devoted six pages of its brief to this argument. (Compare Def.'s Mem. 16-21 with Pl.'s Mem.) This alone could permit the Court to consider these arguments waived. See Palmieri v. Lynch, 392 F.3d 73, 87 (2d Cir. 2004) ("[The plaintiff] failed to . . . raise this argument in his opposition to summary judgment. Thus, this argument has been waived."); Simon v. City of New York, No. 14-CV-8391, 2015 WL 4092389, at *2 (S.D.N.Y. July 6, 2015) (collecting cases holding that a plaintiff abandons claims when it fails to address a defendant's argument on a motion, regardless of its merit). However, in the interest of fairness to Plaintiff, the Court will consider the portions of the record cited by Plaintiff in his opposition to Defendant's 56.1 Statement that relate to these arguments. (Pl.'s 56.1 ¶¶ 17-18, 20-23.)
Even if Plaintiff's "schedule didn't change" after he opted in to all insurances, this does not create a dispute regarding what he did with patients that were already on his schedule. (Pl.'s Dep. 171.)
It is also undisputed that Plaintiff refused Defendant's requests to work additional hours. (Def.'s 56.1 ¶ 24.) Specifically, Ogden testified:
He didn't want to work past five. He didn't want to come in before nine. He wouldn't work Fridays. He refused to work Saturdays. He kept calling off or shutting his schedule down on Wednesdays, during the spring and summer for golf.(Ogden Dep. 19; see also Douglas Dep. 36 (testifying that "on several occasions," Plaintiff left the office early when he "was the only dentist in the office"); Howard Dep. 15-16 (testifying that Plaintiff sometimes left the office in the early to mid-afternoon before the end of the work day).) Plaintiff attempts to dispute this fact with Moshier's testimony that she never had any issue with Plaintiff not showing up or taking sudden absences without giving advance notice, (Pl.'s 56.1 ¶ 20), but even if these absences were authorized or with notice, that does not mean they did not occur or that they did not detract from his ability to see additional patients. Indeed, it is undisputed that when Plaintiff left early, he could not be pulled in to do immediate dental treatment for hygiene patients—an additional source of revenue for Middletown dentists. (Ogden Dep. 190 (describing "immediate treatment"); id. at 40 (explaining that other doctors "were extremely aggressive with filling their schedules," but she observed Plaintiff "having people move patients out, . . . moving hygiene exams, and absolutely no motivation to see the patients that [GE] had"); Destefano-Christie Dep. 28 (testifying that Plaintiff would leave early "maybe every couple of weeks" and that "you can pull from hygiene for production or for patients for same-day treatment . . . but he just wanted to leave . . .").) Moreover, Plaintiff was also "going every couple of weeks to Florida and [GE] had [to] keep changing his schedule because he was working on his condo there[,] [w]hich left [GE] without a doctor like on a Monday or something like that." (Ogden Dep. 152.) Plaintiff disputes this fact by pointing to Kim's testimony that Plaintiff never took unauthorized or excessive vacation time, (Pl.'s 56.1 ¶ 21), but this does not address the question of whether Plaintiff's taking of authorized vacations prevented him from seeing more patients, including existing ones, and therefore generating more income.
Plaintiff cites Moshier's testimony that Plaintiff "would see anybody that was scheduled in the schedule," but "he would have huge gaps, and he would sit around," and that she never saw him reject an opportunity to do a dental exam on someone in the hygienist chair, (Moshier Dep. 15-16; Pl.'s 56.1 ¶ 23), which the Court agrees creates a factual dispute regarding whether Plaintiff refused to see hygiene patients when he was in the office and had gaps in his schedule, (see Def.'s 56.1 ¶ 23). However, this testimony does not create a dispute regarding whether Plaintiff left early rather than attempt to fill his schedule or whether his leaving early prevented him from seeing immediate treatment patients.
Finally, the Parties do dispute the importance of new patients to Plaintiff's income. (Compare Def.'s 56.1 ¶ 13 with Pl.'s 56.1 ¶ 13.) But, even assuming new patients are important to a dentist's income, (see, e.g. Moshier Dep. 28 (testifying "yes" to question "In general, to a dentist, are new patients important?")), Plaintiff does not dispute that he could have made a significant amount of money "treatment planning with existing patients," including "cosmetic dentistry," but "he just didn't" do it, (Ogden Dep. 22).
The Court therefore grants summary judgment to Defendant because Plaintiff has not created a dispute of material fact as to whether he was constructively discharged.
The Court therefore does not reach Defendant's alternate argument about the fourth prong of the prima facie case—the inference of discrimination.
2. Pretext
Even assuming that Plaintiff established a prima facie case of age discrimination, he has not created a dispute of fact regarding whether Defendant's proffered non-discriminatory reasons for the new patient assignment system are pretextual—in other words, that "but for" Plaintiff's age, Defendant would have let him see more new patients. See Gorzynski, 596 F.3d at 106 (requiring an ADEA plaintiff to prove "that age was the 'but-for' cause of the challenged adverse employment action" (quoting Gross, 557 U.S. at 180)); id. at 105 n.6 (assuming this standard also applies to the NYSHRL). As an initial matter, Plaintiff waived any claim to discrimination during the first couple months of his employment, because he testified that the patient referrals at that time were not based on age and failed to argue otherwise in his opposition to the Motion. (Def.'s Mem. 11-12 (citing Pl.'s Dep. 169-70).) See Simon, 2015 WL 4092389, at *2 (collecting cases holding that a plaintiff abandons claims when it fails to address a defendant's argument on a motion, regardless of its merit); see also In re Fosamax Prod. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013) (per curiam) (explaining that a party cannot defeat summary judgment by contradicting his or her "previous sworn testimony"). In any event, Plaintiff has not raised a triable issue of fact as to pretext.
First, Plaintiff claims that Kim "could not rule out that age was a factor in who received the new patients." (Pl.'s Mem. 6-7, 11). But, Kim testified only that he would have no way of knowing whether the dentists' ages were considered or whether "patients were assigned randomly, equally or through some other system." (Kim Dep. 15-16.) This statement alone falls far short of showing that age was the but-for cause of Defendant's decision to funnel new patients to the younger doctors. See Hart v. Metro. Opera Ass'n, Inc., No. 92-CV-4372, 1993 WL 277200, at *3 (S.D.N.Y. July 22, 1993) ("[T]his evidence is far too equivocal to support even an inference of discrimination based on age."). This is particularly true where Kim went on to specifically deny "[t]hat [he] treated [Plaintiff] differently from other doctors based on his age," (Kim Dep. 56), and to state that discrimination on the basis of age is "probably the furthest [thing] from the truth," because the company "[o]f course" strives to treat people the same regardless of age, (id. at 92), and that the policy "had nothing to do with age. It's all about established patient base," (id. at 26). Plaintiff cites no evidence contradicting this testimony.
Moreover, Kim testified, although "the policies and guidelines might be flawed . . . [b]ut . . . there was nothing based on age," and regardless of the age of a dentist, he would have given priority to a new one without "an established patient base." (Id. at 56, 92.) Plaintiff argues that this reason for the preferential treatment of younger dentists is not credible for several reasons. First, he argues that the disparity in distribution of new patients to Dr. John and Dr. Oglesbee versus Plaintiff and Dr. Kolbe is too great to not show discrimination, citing to the following chart:
| 2012 | ||||
|---|---|---|---|---|
| PROVIDER | CODE 150 | Percentage of NewPatients | CODE 140 | Percentage ofEmergencyPatients |
| ROMAIN | 14 | 7.29.% | 28 | 22.4% |
| KOLBE | 15 | 7.81% | 38 | 30.4% |
| JOHN | 132 | 68.75% | 32 | 25.6% |
| OGLESBY | 31 | 16.15% | 27 | 21.6% |
| 2013 | ||||
|---|---|---|---|---|
| PROVIDER | CODE 150 | Percentage of NewPatients | CODE 140 | Percentage ofEmergencyPatients |
| ROMAIN | 32 | 5.17% | 35 | 8.75% |
| KOLBE | 31 | 5.00% | 98 | 24.5% |
| JOHN | 384 | 62.04% | 155 | 38.75% |
| OGLESBY | 172 | 27.79% | 112 | 28% |
Code 150 refers to a "[n]ew patient exam," and Code 140 refers to "a limited exam." (Douglas Dep. 15-16.) The Parties do not discuss the relevance of Code 140 numbers, but some testimony suggests they were not part of the patient assignment policy. (E.g., Kim Dep. 40.)
In Hazen Paper Company, the Supreme Court distinguished between "disparate treatment" and "disparate impact" theories under the ADEA. See 507 U.S. at 609. Although Plaintiff raises only a disparate treatment claim, (e.g., Pl.'s 56.1 ¶ 16 ("[Defendant] does not maintain an age-neutral practice of new patients to newer dentists without established patient bases.")), he is relying on evidence that is more supportive of a disparate impact claim—that is, the facially neutral policy disproportionately harms older dentists and benefits younger ones. The Court also notes that Hazen Paper Co. assumes the old pretext standard—motivating factor rather than but-for—and thus, Plaintiff's burden is now even higher. Compare Hazen Paper Co., 507 U.S. at 610 ("In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." (emphasis added)) with Gross, 557 U.S. at 180 (requiring that age was a "but-for cause of" the employment action).
Plaintiff also argues that certain age-related comments show age discrimination. (Pl.'s Mem. 11-12.) First, Plaintiff cites Dr. Kolbe's testimony that he "had one of [his] hygienists mention the fact that they were told that new patients should go to younger - Dr. John or Oglesby . . . [t]he younger doctors. The new guys coming on." (Kolbe Dep. 24-25.) As an initial matter, Kolbe is not a decisionmaker and states no foundation for his testimony regarding the basis for GE's assignment policy, as opposed to what the policy was. See Hester, 225 F.3d at 184 (rejecting testimony about motivations of decisionmaker without personal knowledge). In any event, Dr. Kolbe testified—after the portion Plaintiff cited—what he meant:
A. She mentioned to me that they were instructed to give the new patients -- to call the young doctors in to examine the new patients.(Kolbe Dep. 26; see also id. at 33 ("[T]he motivation was to give as many patients they can to the new younger doctors.").) This testimony is consistent with GE's purported rationale for the policy. Similarly, Plaintiff cites the testimony of Troeller-Reed, the hygienist in question:
Q. Did you ask her why?
A. No. It made logical sense.
Q. Why?
A. Well, because you have two old doctors who have established practices of 25, 30 years. They don't need new patients supposedly, maybe only a few. New guys coming on from scratch, they need patients. They were the future of the organization. So, I assumed that that would happen. So, I wasn't surprised.
Q. You think that was the case even though you saw Dr. Romain sitting with no new patients during his employment?
A. Yes. I think that was.
Q. Did you ever overhear Ms. Ogden or [Marisa] Dolce make a comment that they wanted to give the patients to the younger dentists?(Troeller Dep. 11 (emphasis added).) This testimony indicates that "older" meant ExcelDent holdovers, not older aged dentists, and in any event, this testimony is based on her "impression" and not sufficient to show but-for causation. (Id.) See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) ("[M]ere speculation and conjecture is insufficient to preclude the granting of [summary judgment.]"); Jackson v. Post Univ., Inc., 836 F. Supp. 2d 65, 97-98 (D. Conn. 2011) (requiring "objective evidence to support [a] wholly subjective impression" that job responsibilities were changed because of discrimination); Hart, 1993 WL 277200, at *3 (rejecting equivocal evidence of age discrimination). Moreover, such "'stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination'" under the ADEA. Parron, 2018 WL 2538221, at *9 (alteration omitted) (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1996)); see also Boyle v. McCann-Erickson, Inc., 949 F. Supp. 1095, 1101 (S.D.N.Y. 1997) (noting that "ageist statements. . . are not sufficient to satisfy [the] [p]laintiff's ultimate burden"). This rule is particularly apt when Plaintiff testified that no one at GE made any comments about his age. (Pl.'s Dep. 78-89.) See Venezia v. Luxoticca Retail N. Am. Inc., No. 13-CV-4467, 2015 WL 5692146, at *10 (S.D.N.Y. Sept. 28, 2015) ("[W]ithout any evidence that Defendants made discriminatory comments toward Plaintiff because of his age . . . Plaintiff has failed to establish any facts that would support an inference of discrimination based on his age."); Rodriguez, 299 F. Supp. 2d at 218 ("Notably, [the plaintiff] does not offer any evidence suggesting that . . . anyone at [the defendant employer] made disparaging comments about his age.").
A. No. Not that I recall, that it was younger dentists, no.
Q. Did you form an impression that that's what was happening?
A. Yes.
Q. What was that based on?
A. I was told at one point by Betty that Marisa and Great Expressions wanted to get rid of the older hygienists and dentists. But, as [i]n older, I mean from ExcelDent. I don't know if it was necessarily age, but definitely people who were there longer than the new people.
Plaintiff also asserts that "GE retained all the former long term Exceldent employees with the exception of only two, Dr. Romain and Dr. Kolbe, both in their 70s." (Pl.'s Mem. 12.) However, Plaintiff does not identify or describe these other employees, let alone give their ages, nor does he explain how GE chose not to "retain" Plaintiff, who they asked to stay, (Ogden Dep. 71), or Dr. Kolbe, whose circumstances in leaving GE are not described by the Parties. In any event, any inference of discrimination is undermined where, as here, the same management team made the decision to hire Plaintiff in 2012 and maintain its policy of assigning new patients to newer doctors. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) ("When the same actor hires a person already within the protected class, and then later fires that same person, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." (internal quotation marks omitted)). This is particularly significant here, where the gap in time between Plaintiff's hiring and his alleged constructive discharge was less than two years. See Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) ("[The plaintiff] was fired by the same man who had hired him three years earlier, when [he] already was 60 years old.").
Plaintiff also argues that Defendant's purported rationale for the patient assignment policy is not credible as applied to Drs. John and Oglesbee's circumstances. (Pl.'s Mem. 12-15.) First, Plaintiff contends that Kim only expressed a preference over assigning new patients to Dr. Oglesbee, but not to Dr. John. (Kim Dep. 40-41 (testifying that his "priority was Dr. Oglesbee" but "there could have been Dr. John," he just was not "100 percent certain").) But, Kim testified that the policy was to "try to keep everybody busy," (id. at 13), and also testified that he believed Dr. John and Dr. Oglesbee both had smaller patient bases than Plaintiff, (id. at 17-18, 90). Plaintiff cites nothing in the record or Defendant's brief suggesting Kim only "authorized" preferences for Dr. Oglesbee. (Pl.'s Mem. 12.) Thus, Plaintiff's extrapolation from this uncertain testimony that "GE has no legitimate nondiscriminatory reason for the huge disparity in the assignment of new patients" before November 2012, when Dr. Oglesbee came to Middletown, is inaccurate. (Id. at 13.) Indeed, if anything, this shows that the purported chart of statistics submitted by Plaintiff is flawed, because it does not differentiate based on who worked what months or hours, and, correspondingly, when new patients came in over the course of each year. (See Pl.'s Ex. B.) See Hirschberg v. Bank of Am., N.A., 754 F. Supp. 2d 500, 519 (E.D.N.Y. 2010) ("[The] [p]laintiff has failed to submit any evidence that would complete the relevant statistical picture—by demonstrating, for example, the ages of each Branch Manager that was fired (and not fired) by [the defendant] during the relevant time period." (italics omitted)); Saenger v. Montefiore Med. Ctr., 706 F. Supp. 2d 494, 515-16 (S.D.N.Y. 2010) ("Courts routinely reject statistics that are not sufficiently complete to imply a pattern of discrimination.").
Additionally, Plaintiff cites Dr. John's testimony for the proposition that Dr. Oglesbee "was busy from the beginning," (Pl.'s Mem. 14), but this testimony does not support Plaintiff's claim; rather, Dr. John testified that GE received "lots of complaints" from Dr. Oglesbee's old patients, from Long Island, because "[h]e was busy in the beginning" and "couldn't keep up with the pace," (John Dep. 26-27). Thus, this testimony reflects that Defendant's policy was in place and Dr. Oglesbee was getting many new patients while attempting to continue to serve some old patients; it does not indicate that Dr. Oglesbee came in with such an obvious or known established patient base that Defendant's policy was clearly pre-textual. (See Kim Dep. 29 ("I relocated Dr. Oglesbee from Long Island . . . Promising to get him established here. And so he can get busy.").) See Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("The distinction lies between a poor business decision and a reason manufactured to avoid liability. Thus, facts may exist from which a reasonable jury could conclude that the employers' business decision was so lacking in merit as to call into question its genuineness."); Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986) (finding that the plaintiff "presented no evidence to show that [the defendants] w[ere] racially biased" because "the reasons for hiring [another candidate] were not so ridden with error that [the defendants] could not have honestly relied upon them"). That Defendant's policy might have been erroneous or unnecessary does not make it discriminatory. See Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3625, 2013 WL 3968748, at *8 (E.D.N.Y. July 30, 2013) (noting that "personnel decisions . . . that are incorrect do not support a federal claim unless they are tainted, at least in part, by illegal discrimination" (alteration and internal quotation marks omitted)); Grant v. Roche Diagnostics Corp., No. 09-CV-1540, 2011 WL 3040913, at *11 (E.D.N.Y. July 20, 2011) ("[I]t is well settled that the mere fact that an employee . . . has evidence that the [employer's] decision was objectively incorrect[] does not necessarily demonstrate, by itself, that the employer's proffered reasons are a pretext for [age discrimination]."); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding that "rejection of the defendant's proffered reasons [does not] compel[] judgment for the plaintiff because the plaintiff "at all times bears the ultimate burden of persuasion" that the decision was intentionally discriminatory (internal quotation marks omitted)); id. at 524 ("That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason of [age] is correct.").
Although not dispositive, it is noteworthy that one of the reasons Oglesbee resigned from GE is that he "did not feel that [he] was seeing enough patients and felt [he] needed to find a better opportunity for [him]self." (Oglesbee Dep. 30.)
Plaintiff's next argument—that Dr. John was already busy and had many existing patients—is stronger, but fails for similar reasons. (Pl.'s Mem. 13-14.) Plaintiff cites a plethora of evidence in the record that Dr. John was noticeably busy and already had existing patients prior to GE taking over. (Id.) This includes testimony from Dr. John that he was at the Middletown office and already had existing patients, (John Dep. 6), and had patients follow him from his practices at other locations, (id. at 21), which made him already busier than Plaintiff, (id. at 9). And, even Ogden characterized Dr. John's practice as having a "huge following" on April 30, 2012—just two months after GE acquired the Middletown office—although it is disputed whether this is from receiving new, or continuing to treat existing, patients. (Pl.'s Ex. C.) Defendant does not directly respond to this testimony. (See Def.'s Reply.) However, Defendant did offer several alternate reasons, discussed earlier, why Plaintiff was treating fewer patients, and thus less busy than Dr. John, that Plaintiff did not dispute—let alone argue they were age-based. (See Def.'s Mem. 16-21.) Therefore, a fact-finder would be hard-pressed to conclude that but for the allegedly discriminatory new patient assignment policy, Plaintiff would not have been constructively discharged. See Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (per curiam) ("The condition that a plaintiff's age must be the 'but for' cause of the adverse employment action is not equivalent to a requirement that age was the employer's only consideration, but rather that the adverse employment action would not have occurred without it." (alteration and internal quotation marks omitted)); see also Bucek v. Gallagher Bassett Servs., Inc., No. 16-CV-1344, 2018 WL 1609334, at *12 (S.D.N.Y. Mar. 29, 2018) (explaining that "[e]ven if [the defendant's] reliance on [a factor] was dubious, [his] decision was based on other proffered reasons which [the] [p]laintiff has not shown to be false or [discriminatory]").
In any event, even if Dr. John was busy and the new patient assignment policy was thus unnecessary, Plaintiff cites no evidence that his age was the but-for cause of the policy nevertheless being applied in favor of Dr. John. Plaintiff again cites Moshier's testimony that she felt GE "wanted to push him out." (Pl.'s Mem. 14 (citing Moshier Dep. 13); see also id. at 16 (citing Douglas Dep. 23 (testifying only that Plaintiff said "he saw the writing on the wall" when he resigned, but that she "can't answer" whether that meant Plaintiff "felt like the company was pushing him out")).) But, as the Court previously noted, Moshier does not, throughout her entire deposition, provide any basis for this feeling. Without more, this speculative testimony from a non-decisionmaker is insufficient to demonstrate pretext. See Hester, 225 F.3d at 184 (declining to weigh "subjective impressions" of discrimination not based on personal knowledge of decisionmaking process); Parron, 2018 WL 2538221, at *7 (noting that summary judgment must be granted to the employer when the plaintiff offers only "conclusory allegations or unsubstantiated speculation" (internal quotation marks omitted)); McCloskey v. Union Carbide Corp., 815 F. Supp. 78, 81 (D. Conn. 1993) (rejecting the plaintiff's "gut feeling" as evidence sufficient to show pretext).
For the same reasons, Plaintiff's speculative testimony that there could be no other reason for the policy but age discrimination—which Plaintiff did not cite in his opposition—is insufficient to show pretext. (Pl.'s Dep. 144-45 ("I have no other reason why they would treat me any other way but against age . . . What else could it possibly be. . . . I mean, I just have no other cause to believe that it had to be they wanted the younger . . . dentists . . . to be more busy. . . . I had the most experience of anybody in the practice. . . . So it had to be - I don't have any other reason to believe that it wasn't age related, that they wanted me out, that they wanted Dr. John to have more patients . . .").) Indeed, this testimony indicates that Plaintiff merely disagreed with Defendant's business decision because he believed he was the most qualified dentist in the office. However, this does not make the decision discriminatory. See Delaney, 766 F.3d at 169 ("While [the Court] must ensure that employers do not act in a discriminatory fashion, [it] do[es] not sit as a super-personnel department that reexamines an entity's business decisions."); Testa v. CareFusion, No. 14-CV-05202, 2018 WL 1611378, at *8 (E.D.N.Y. Apr. 3, 2018) ("An employee's subjective disagreement with his [or her] manager's evaluation of his [or her] [qualifications] is not a viable basis for a discrimination claim [under the ADEA].").
Plaintiff also reiterates that the policy was a "drastic change" for him, that he was not treated equally to Drs. John and Oglesbee, resulting in a great "economic impact," and that he "made several complaints" to Ogden and Kim about this mistreatment. (Pl.'s Mem. 14-16.) But, "[P]laintiff cannot cite to his mistreatment and ask the [C]ourt to conclude that it must have been due to his age. Rather, he is required to adduce sufficient evidence to permit a reasonable jury to find that but-for [D]efendant[']s age bias, he would not have been" assigned fewer new patients. Parron, 2018 WL 2538221, at *7 (citations, alterations, and internal quotation marks omitted). Although Plaintiff complained to Ogden and Kim, it is undisputed that Plaintiff "never did" mention age in these complaints. (Pl.'s Dep. 79; see also Pl.'s Ex. I.) See Sedelnik v. City of Bridgeport, 837 F. Supp. 2d 12, 18 (D. Conn. 2011) ("None of this evidence contains any mention of [the plaintiff's] age; rather, the panel's observations and conclusions with respect to [the plaintiff] focus solely on her experience and qualifications (or lack thereof)."); Redman v. New York State Dep't of Corr. Servs., No. 10-CV-5368, 2012 WL 2864502, at *4 (S.D.N.Y. Apr. 30, 2012) (noting that although the plaintiff "formally complained about workplace harassment," this did not rebut the defendant's nondiscrimintaory reasons for terminating her), aff'd, 541 F. App'x 52 (2d Cir. 2013); cf. Bucek, 2018 WL 1609334, at *16 (explaining, in retaliation context, that "[r]egardless of whether [the] [p]laintiff herself believed that" her comment to a supervisor "was a plain reference to the [employer's] decision being discriminatory, her undisclosed belief of such treatment will not convert an ordinary employment complaint into a protected activity" (citations and internal quotation marks omitted)). Nor did Kim or Ogden mention age in their responses; indeed, Kim attempted to fix the situation, albeit unsuccessfully. (See Pl.'s Ex. I; Kim. Dep. 48; Pl.'s 56.1 ¶ 10.)
Finally, Plaintiff argues that Defendant took a position before the EEOC inconsistent with its position in this case, which shows pretext. (Pl.'s Mem. 16-17.) Specifically, Plaintiff contends that Defendant cited "excessive absenteeism," "vacationing," and "refus[al] to get on insurance contracts" as factors in Plaintiff's failure to see new patients, but Kim testified in this suit that he was not aware of these issues. (Id. at 16.) If Defendant "offered shifting and somewhat inconsistent explanations for" its policy from its presentation to the EEOC and its arguments in this lawsuit, this could create a factual dispute regarding pretext. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846-47 (2d Cir. 2013). However, no such discrepancies exist here. Defendant argued before the EEOC that "[t]he criterion for new patient assignment was not age, but rather . . . non-discriminatory reasons [Plaintiff] alleges are correlated with age,"—namely, to "steer new patients toward . . . doctors with smaller existing patient loads"—and, "[a]dditionally, [Plaintiff] received less new patient referrals due to his personal decisions pertaining to the dental insurance he would accept and his refusal to treat patient[s] during off-hours." (Pl.'s Ex. D at 3, 5-7; see also id. at 7 (listing "other reasons" why Plaintiff "received less new patient assignments" as insurance plans, off-hours patients, leaving before the end of the business day, and substantial vacation time, all of which "created dual barriers to the acquisition of new patients").) Simply put, this position is entirely consistent with Defendant's position in this lawsuit: it had a legitimate, non-discriminatory reason for its new patient assignment policy, and, in addition, there are other independent reasons why Plaintiff was not busy or making as much income as he used to. (Def.'s Mem. 9-21.) Kim's cited testimony also does not contradict the arguments made before the EEOC. (Kim Dep. 61 ("I'm not aware [about whether Plaintiff was prompt in getting on new insurance plans]. At the time, again, my understanding was that he was not on all of the plans."); id. at 63 (testifying "I'm not involved in that process" in response to question about his awareness of insurance credentials "[i]n the corporate rep capacity"); id. at 107-08 (testifying that taking pre-approved vacation time is "not excessive" and that he "do[es not] recall" whether Plaintiff's use of time off was excessive or unapproved).) Plaintiff cites no cases requiring the Court to find pretext merely because the corporate representative was not prepared for his deposition. Therefore, this is not a case in which the defendant offered one explanation for its actions before the EEOC and then offered "testimony [that] directly contradicts" that representation and different reasons "never even mentioned to the EEOC" in the later lawsuit, such that a reasonable juror could infer pretext. Zann Kwan, 737 F.3d at 846-47.
To the extent Plaintiff is arguing that the EEOC's Reasonable Cause Determination requires a finding of pretext here, (Pl.'s Mem. 16-17), that is not the law. See Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 369-70 (S.D.N.Y. 2006) (finding that "EEOC determinations have no preclusive effect," and that "[t]he EEOC's . . . finding is merely intended to notify potential defendants of the EEOC's findings, not an adjudication of rights and liabilities"). --------
Accordingly, the Court grants summary judgment to Defendant, because Plaintiff "has not proffered evidence . . . sufficient to raise a triable issue of fact as to whether [Defendant's] alleged age-based discriminatory animus was the but-for—or indeed, any cause at all of [Defendant's] actions." Parron, 2018 WL 2538221, at *7 (internal quotation marks omitted).
III. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 56), enter judgment for Defendant, and close this case. SO ORDERED. DATED: July 20, 2018
White Plains, New York
/s/_________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE