Taylor v New York Univ. Med. Ctr. (2008 NYSlipOp = 28332)

Taylor v New York Univ. Med. = Ctr.

2008 NYSlipOp 28332

Decided on September 10, 2008

Appellate Term, First Department

Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.

This opinion is uncorrected = and=20 subject to revision before publication in the printed = Miscellaneous=20 Reports.

Mark A. Taylor, = Plaintiff-Respondent,=20

against

New York University Medical Center and Peter L. = Ferrara,=20 Defendants-Appellants.

Defendants, as limited by their briefs, appeal from so much of an = order of=20 the Civil Court of the City of New York, New York County (Geoffrey D. = Wright,=20 J.), entered March 13, 2006, as (1) denied their motion for judgment=20 notwithstanding the verdict as a matter of law or in the alternative, to = set=20 aside the verdict as against the weight of the evidence, (2) denied = their motion=20 to vacate the jury's verdict that plaintiff was entitled to punitive = damages,=20 and (3) remitted the award for mental anguish only to the extent of = reducing it=20 to $600,000.

Order (Geoffrey D. Wright, J.) entered March 13, 2006, reversed, with = $10=20 costs, defendants' CPLR 4404(a) motion granted, the verdict set aside, = judgment=20 in favor of plaintiff vacated, and judgment granted to defendants as a = matter of=20 law. The Clerk is directed to enter judgment in favor of defendants = dismissing=20 the complaint.=20

Defendants' CPLR 4404(a) motion to set aside the verdict should have = been=20 granted. Defendants met their burden of rebutting plaintiff's prima = facie sexual=20 orientation discrimination case by presenting admissible evidence of a=20 legitimate, independent and nondiscriminatory reason for the termination = of=20 plaintiff's employment (Ferrante v American Lung Assn., 90 NY2d = 623, 629=20 [1997]). In this connection, defendants persuasively showed that = defendant New=20 York University Medical Center (NYUMC) terminated plaintiff's employment = as a=20 result of budgetary concerns and a departmental reorganization. The = unrebutted=20 trial evidence established that the decision to eliminate plaintiff's = position=20 was made by one Teresa Bischoff, the executive vice president and deputy = provost=20 of NYUMC, who testified that NYUMC was facing economic pressures due to = the=20 increasing cost of health care. Bischoff explained that when she first = became=20 executive vice president in 1994, NYUMC eliminated about 150 positions = in an=20 effort to remain financially sound and address its budgetary concerns. = Layoffs=20 were a regular subject of discussion at budget meetings, and on the = average, 20=20 positions were eliminated annually.=20

The record reveals that plaintiff worked exclusively for Martin = Begun, the=20 Vice President of External Affairs, until Begun voluntarily left his = employment=20 at NYUMC in August 1997. Plaintiff began working at NYUMC as "special = assistant"=20 to Begun in or about 1991. In an [*2]attempt to=20 strengthen or "secure" plaintiff's position in the medical center, Begun = made=20 plaintiff the Director of External Affairs in 1993. However, plaintiff's = duties=20 remained the same and he continued to work solely for Begun. Sometime = between=20 1995 and 1996, Begun placed plaintiff's position on the budget of the = public=20 affairs department. Begun's stated intention was to give plaintiff "a = position=20 that would have secured him in the hearts and minds of the leadership." = While=20 the budget line for plaintiff's position was transferred to the public = affairs=20 department, plaintiff continued to report to and work for Begun. When = defendant=20 Ferrera was promoted to Director of Public Affairs in April 1997, he = took charge=20 of the department's budget, which included the line for plaintiff's = position.=20 However, plaintiff and one other NYUMC employee on Ferrera's budget did = not=20 report to Ferrera and could not be fired by him.=20

Described by the dissent as "highly respected," Begun clearly enjoyed = a place=20 of prominence within NYUMC's management hierarchy and his departure = provided the=20 institution with the opportunity to downsize its external affairs = department,=20 which likely would not have occurred but for Begun's departure. Thus, in = anticipation of Begun's impending departure, as well as the departure of = Larry=20 Lynn, the vice president of development, Bischoff restructured the = external=20 affairs department. Inasmuch as plaintiff worked exclusively for Begun, = whose=20 duties and responsibilities were reassigned, Bischoff determined that=20 plaintiff's position was no longer needed, particularly in light of the=20 continuing economic pressures faced by NYUMC and its impending merger = with Mount=20 Sinai Hospital. Bischoff informed Begun about her decision to eliminate=20 plaintiff's position prior to Begun's departure. Bischoff's testimony = was=20 confirmed by other executives at NYUMC, including the vice president for = human=20 resources.=20

In addition to demonstrating that NYUMC had a legitimate and=20 nondiscriminatory reason for dismissing plaintiff, defendants presented = evidence=20 that the reason was no pretext for acts of discrimination. NYUMC showed = that as=20 a result of the reorganization in 1997, it eliminated one vice president = position as well as between 20 to 24 other positions, including the = position=20 held by plaintiff. While the dissent notes the "absence of evidence as = to=20 whether the budget of the public affairs department had increased or = decreased=20 in the year following plaintiff's termination," the crucial inquiry is = whether=20 the elimination of plaintiff's position resulted from NYUMC's perceived = need to=20 reduce its expenses and implement new strategies in the face of = increasing=20 economic pressures (see e.g. Alvarado v Hotel Salisbury, Inc., 38 = AD3d 398=20 [2007]), not whether NYUMC actually streamlined the budget. "It is not = enough=20 for the plaintiff to show that the employer made an unwise business = decision or=20 an unnecessary personnel move," since "the issue is not whether = defendants acted=20 with good cause but whether their business decisions would not have been = made=20 but for a discriminatory motive" (Ioele v Alden Press, Inc., 145 = AD2d 29,=20 36 [1989]).=20

In the face of defendants' compelling showing, the burden shifted to=20 plaintiff to prove by a preponderance of the evidence "both that = the=20 reason proffered by defendants was false, and that discrimination was = the real=20 reason [internal citations omitted]" (Stephenson v Hotel Emples. & Rest. Emples. Union = Local 100=20 of AFL-CIO, 14 AD3d 325 [2005], affd 6 NY3d 265 [2006]).=20 Plaintiff failed to carry either prong of his evidentiary burden. The = crux of=20 plaintiff's claim is that defendant Ferrera, who supposedly was = "anti-gay," was=20 responsible for the decision to terminate plaintiff's employment. At the = time=20 that plaintiff's position was eliminated in 1997, Ferrera, then the = Director of=20 Public Affairs, concededly did not work with [*3]nor=20 supervise plaintiff. While plaintiff's evidence may have shown that = there was no=20 love lost between plaintiff and Ferrara, "mere personality conflicts = must not be=20 mistaken for unlawful discrimination" (Forrest v Jewish Guild, 3 = NY3d=20 295, 308 [2004]). Accepting plaintiff's assertion that "there was some = conflict=20 or problem" with Ferrera, the record evidence, even viewed in the light = most=20 favorable to plaintiff, does not support the inference that Ferrera made = the=20 decision to terminate plaintiff's position. To the contrary, the = evidence shows=20 that the decision was solely made by Bischoff. The fact that Ferrera = signed=20 plaintiff's payroll termination form was not evidence of Ferrera's = participation=20 in the decision to eliminate plaintiff's position since Bischoff = explained, and=20 the documentary evidence demonstrated, that NYUMC's procedures required=20 department heads to sign such forms. While the dissent finds "damaging" = that=20 "plaintiff was terminated only after four months after plaintiff was = placed=20 under Ferrara's budget" (dissenting op at 7), by Begun's own account, = the line=20 for plaintiff's position was placed on the budget of the public affairs=20 department in "February 1995" or "somewhere between 1995 and 1996," = prior to=20 Ferrera becoming the director of that department. When Ferrera assumed = his=20 position as director of public affairs, he had no supervisory control = over=20 plaintiff.=20

Even assuming that Ferrera participated in the decision making, there = was no=20 showing of a causal relationship between the anti-gay conduct attributed = to, and=20 comments allegedly uttered by, Ferrera in 1995, and the elimination of=20 plaintiff's position in 1997, that could conceivably demonstrate that=20 plaintiff's termination occurred under circumstances giving rise to an = inference=20 of discrimination. "Statements by nondecisionmakers or statements by=20 decisionmakers unrelated to the decision process itself" are = insufficient to=20 establish discriminatory intent (Forest v Jewish Guild, 3 NY3d at = 308,=20 quoting Price Waterhouse v Hopkins, 430 US 228, 277 [O'Connor, = J.,=20 concurring]). To be sure, some of the conduct attributed to Ferrera is=20 inexcusable. However, there was no showing that NYUMC condoned or = acquiesced in=20 Ferrera's conduct, which, according to plaintiff, commenced soon after = the 1994=20 publication of a book detailing plaintiff's intimate relationship with = the late=20 composer Leonard Bernstein. Unfortunately, as often happens in the = workplace, it=20 appears that plaintiff was the subject of "gossip by the water cooler." = However,=20 this occurred a full two years before plaintiff's discharge and there is = nothing=20 in the record to suggest that his work status was in anyway affected by = the=20 disclosure of his sexual orientation. Indeed, the record conclusively=20 establishes that NYUMC had a vigorously enforced anti-discrimination = policy,=20 designed to prohibit harassment or discrimination on the basis of sexual = orientation, as well as a policy on cultural diversity and equal = opportunity=20 affirmative action. When plaintiff filed a complaint with NYUMC's human=20 resources department in 1995 about a comment made by Ferrera and = perceived by=20 plaintiff as discriminatory, NYUMC promptly met with Ferrera, counseling = him=20 about NYUMC's anti-discrimination policy, and thereafter followed up = with=20 plaintiff to ensure that there were no further problems. Notably, = plaintiff=20 never filed another complaint until after his termination.=20

In the final analysis, plaintiff's case rests entirely on the = supposition=20 that he was terminated because Ferrera, the sole actor accused of=20 discrimination, somehow managed to convince the executives at NYUMC to = discharge=20 plaintiff. However, there is an evidentiary gap in plaintiff's case = which can=20 only, impermissibly, be filled by conjecture. There was no evidence = rebutting=20 defendants' legitimate reason for dismissal and more importantly, no = proof=20 showing that [*4]the real reason behind = NYUMC's=20 decision to eliminate plaintiff's position was discriminatory animus (see e.g. Jordan v Bates Adv. Holdings, Inc. 46 = AD3d 440=20 [2007]). Thus, viewing the evidence in the light most favorable to = plaintiff,=20 there is no valid line of reasoning and permissible inferences that = could have=20 lead rational jurors to the conclusion reached by the jury on the basis = of the=20 evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d = 493=20 [1978]).=20

Were we not dismissing outright, we would remand for a new trial = based on the=20 improper admission of evidence which had little or no bearing on the = events=20 leading to plaintiff's termination. For example, although plaintiff did = not=20 allege a hostile work environment claim, he was permitted to elicit = substantial=20 evidence about incidents, most of which were too remote in time, that = did not=20 relate to the decision to eliminate plaintiff's position, and about = conduct=20 attributed to a limited number of coworkers, none of whom participated = in the=20 discharge decision. Also improperly admitted, over strenuous objection = by=20 defense counsel, was evidence of an incident involving Ferrera's alleged = inappropriate comments to a female worker, and evidence of the fact that = NYUMC=20 paid for Ferrera's legal fees, suggesting that NYUMC was condoning any = improper=20 conduct by Ferrera. The evidentiary rulings unfairly prejudiced = defendants' case=20 and would warrant a new trial. The record shows that the defense timely = objected=20 to the majority of the evidentiary errors during trial, thus preserving = the=20 issue for appellate review (see CPLR 4017, 5501[a][3]; Horton = v Smith,=20 51 NY2d 789 [1980]). Contrary to plaintiff's contention, appellate = review is=20 not precluded by the fact that defendants' post-trial motion to set = aside the=20 verdict did not expressly rely upon the evidentiary errors to which = timely=20 objections were made (see Rosso v Beer Garden, Inc., 12 AD3d 152 = [2004]).=20

Lastly, were we not dismissing, we would find that the evidence did = not=20 warrant an award of punitive damages (see generally Kolstad v = American Dental=20 Assn., 527 US 526 [1999]) and that the award for damages for mental = anguish,=20 even as reduced by the trial court, was excessive and unsupported by the = evidence (see Bronx County Med. Group v Lassen, 233 AD2d 234 = [1996];=20 Boutique Industries, Inc. v New York State Div. of Human Rights, = 228 AD2d=20 171 [1996]).

WILLIAM J. DAVIS, J. (dissenting):=20

In my opinion, the decision of my colleagues in the majority to set = aside the=20 jury's determination and direct a verdict in favor of the defendants = improperly=20 usurps the jury's fact-finding function and injects their own view of = the=20 evidence into the proceedings based upon their disagreement with the = jury's=20 findings rather than upon their desire to meet this court's obligation = to ensure=20 a fair verdict. For those reasons, I respectfully dissent and hold that = the=20 trial court's denial of defendants' motion pursuant to CPLR =A7 = 4404(a)should be=20 affirmed as defendants did not demonstrate their entitlement to judgment = as a=20 matter of law or that the verdict was against the weight of the = evidence.=20

The power of the court to set aside a jury verdict is discretionary = and such=20 discretion must be exercised cautiously (see, Nicastro v Park, = 113 AD2d=20 129, 133 [2d Dept. 1985]). Such authority is codified in CPLR =A7 4404 = (a) which=20 provides, as relevant here, that "the court may set aside a [*5]verdict or any judgment entered thereon and = direct that=20 judgment be entered in favor of a party entitled to judgment as a matter = of law=20 or it may order a new trial of a cause of action or separable issue = where the=20 verdict is contrary to the weight of the evidence."=20

In order to sustain a determination that a jury verdict is not = supported by=20 sufficient evidence as a matter of law a court is required to find upon = the=20 evidence presented that there is "no valid line of reasoning and = permissible=20 inferences which could possibly lead rational men to the conclusion = reached by=20 the jury" (Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1985]). = In=20 essence, a verdict should not be directed unless there is only one = possible=20 conclusion which could be reached based upon the evidence (see generally, McDermott v Coffee Beanery, 9 AD3d = 195,210 [1st Dept. 2004] [dissenting opn. Saxe, J.]).=20

The New York City Human Rights Law (N.Y.C. Administrative Code = =A78-107=20 [1][a]), under which plaintiff is pursuing his claims, provides that it = is an=20 unlawful discriminatory practice for an employer or employee to = discharge a=20 person from employment based upon that person's actual or perceived = sexual=20 orientation. It is well settled that the plaintiff in an employment=20 discrimination action bears the initial burden of establishing a = prima=20 facie case by demonstrating that s/he is a member of a protected = class, that=20 s/he was qualified to hold the position from which s/he was discharged = and that=20 the discharge occurred under circumstances giving rise to an inference = of=20 discrimination (see, McDonnell Douglas Corp. V Green, 411 U.S. = 792, 802=20 [1973]). Once a prima facie case has been established, a = presumption=20 arises that the employer unlawfully discriminated against the plaintiff = and the=20 burden shifts to the defendant-employer to rebut the presumption by = articulating=20 some legitimate, non-discriminatory reasons to support its employment = decision.=20 If such evidence is produced to rebut the presumption of discrimination, = the=20 burden then shifts back to the plaintiff to prove by a preponderance of = the=20 evidence that the employer's reason was a pretext for discrimination = (see,=20 Ferrante v American Lung Association, 90 NY2d 623, 629-630 [1997]).=20

Here, the Civil Court (Faviolo Soto, J.)in ruling on defendants' = motion for=20 summary judgment denied so much of such motion as sought summary = judgment=20 dismissing plaintiff's first cause of action for discrimination based = upon=20 sexual orientation. This court affirmed that part of the Civil Court's = order=20 finding based upon the parties' submissions that there were issues of = fact as to=20 whether defendant New York University Medical Center's ("NYUMC")stated = reason=20 for plaintiff's termination was just a pretext for discrimination. The = Appellate=20 Division, First Department unanimously affirmed this court's order = stating:=20 "While defendants have set forth evidence of a legitimate, independent,=20 nondiscriminatory reason to support the decision to terminate = plaintiff's=20 employment [citation omitted], specifically, a reorganization [citation=20 omitted], plaintiff has responded with evidence sufficient to raise a = triable=20 question of fact as to whether the proffered reason is a mere pretext = for=20 discrimination [citation omitted]" (Taylor v New York Univ. Med. Ctr., 2 AD3d 244 = [1st=20 Dept. 2003]). It is generally held that the denial of a motion for = summary=20 judgment is not an adjudication on the merits and establishes nothing = except=20 that summary judgment is not warranted based upon the proof before the = court at=20 that time(see, Metropolitan Steel Industries v = Perini,=20 36 AD2d 568 [1st Dept. 2007]; but see, In Re Sakow, 45 AD3d = 314 [1st=20 Dept. 2007]; American Guarantee & Liability Ins. Co. V CNA Reins. = Co.=20 Ltd., 42 AD3d338 [1st Dept. 2007]) Thus, while sound policy and = precedent=20 militates against the application of the law of the case doctrine to the = Appellate Division's factual determinations on the prior appeal = (id.),=20 the plaintiff appears to acknowledge that defendants' trial evidence=20 sufficiently rebutted plaintiff's prima facie [*6]showing of discrimination and, therefore, = such issue=20 will not be reexamined here. Hence, the key issue on this appeal is = whether=20 plaintiff proved by a preponderance of the evidence that defendants' = stated=20 economic reasons for terminating plaintiff's employment were false and a = pretext=20 for discrimination and that discrimination based upon sexual orientation = was the=20 real reason behind his termination.=20

Contrary to defendants' contentions and the findings of the majority, = there=20 was ample evidence that defendant Ferrara was responsible for = instigating=20 NYUMC's decision to discharge plaintiff and that plaintiff's sexual = orientation=20 was a determining factor in that decision. The testimony of plaintiff's = highly=20 respected superior Martin Begun, NYUMC's Vice President of External = Affairs=20 until his retirement in August 1997, indicated that plaintiff's = performance=20 while employed at NYUMC was outstanding and exceptional. There was = substantial=20 evidence that after a biography of the composer Leonard Bernstein which=20 disclosed plaintiff's homosexual relationship with Bernstein was = circulated=20 among staff at NYUMC plaintiff was excluded from meetings that he had = previously=20 attended. Plaintiff was also subjected to insulting gestures and = comments, many=20 of them initiated by defendant Ferrara, in derogation of plaintiff's=20 homosexuality.=20

Particularly damaging to defendants' reasoning that plaintiff was = laid off=20 for financial reasons was the testimony of Agile Faust, the Executive = Assistant=20 to Myra Biblowit, the Vice President for External Affairs to whom = defendant=20 Ferrara reported, that when asked by Biblowit about plaintiff's job = description=20 Ferrara responded that plaintiff "did nothing"; plaintiff's testimony = that just=20 before he was terminated Biblowit told plaintiff that it was not going = to work=20 out between him and defendant Ferrara thereby implying that the = termination was=20 based upon personal hostility and anti-gay animus; Ferrara's initials on = plaintiff's payroll termination form which could be viewed as evidence = of=20 Ferrara's involvement in plaintiff's termination especially since none = of=20 defendants' witnesses could identify the initials next to notations on = the same=20 form that indicated plaintiff was being laid off and would not be = rehired and in=20 view of Ferrara's well-known hostility towards plaintiff stemming from=20 plaintiff's homosexuality. The totality of the circumstances reflected = in the=20 trial testimony concerning defendant Ferrara's conduct toward plaintiff = makes=20 eminently clear that, contrary to the suggestion in the majority's = opinion,=20 Ferrara's hostility towards plaintiff elevated it above a mere = personality=20 conflict. Rather, Ferrara's behavior was such that it overstepped = appropriate=20 bounds in a professional work environment and clearly reflected his = distaste for=20 homosexuals. Indeed, even more damaging was testimony that after = approximately=20 six years as an employee of NYUMC plaintiff was terminated only four = months=20 after plaintiff was placed under Ferrara's budget.=20

Moreover, although defendants contended that after Begun's retirement = and=20 plaintiff's termination it was saving two salaries, there was evidence = that=20 NYUMC continued to pay Begun's severance as well as the salary of = Biblowit who=20 had partially replaced Begun and an absence of evidence as to whether = the budget=20 of the Public Affairs Department had increased or decreased in the year=20 following plaintiff's termination. Upon review of all of the evidence = adduced at=20 trial, I am of the opinion that viewing the evidence in a light most = favorable=20 to the plaintiff there is a valid line of reasoning and permissible = inferences=20 which could lead rational men and women to the conclusion reached by the = jury=20 that plaintiff's termination was based upon his sexual orientation and = not on=20 budgetary considerations.=20

I also reject the defendants' alternative argument, to wit, that a = new trial=20 should be ordered [*7]on the grounds that = the verdict=20 was against the weight of the evidence. A verdict should not be set = aside as=20 against the weight of the evidence unless the evidence so preponderates = in favor=20 of the adverse party that the jury could not have reached the verdict on = any=20 fair interpretation of the evidence (see, Cohen v Hallmark Cards, = 45 NY2d=20 supra at 499). In this regard, great deference should be accorded = by=20 appellate courts to the jury's fact-finding determination since having = seen and=20 heard the witnesses and observed their demeanor at trial the jury is in = the best=20 position to assess their credibility (see, McDermott v Coffee = Beanery, 9=20 AD3d supra at 206-207). Upon the testimony as detailed above, the = jury=20 was entitled to credit the testimony of plaintiff's witnesses and could = have=20 reasonably resolved conflicting testimony of the parties' respective = witnesses=20 in favor of plaintiff to support its finding that defendants terminated=20 plaintiff based upon sexual orientation, and that Ferrara played a = determinative=20 role in the decision to terminate plaintiff. Here, the majority's = opinion,=20 substitutes its own opinion of the evidence for that of the jury and = thereby=20 improperly intrudes upon the jury's fact-finding function.=20

With respect to the introduction of evidence which defendants argue = deprived=20 them of a fair trial and which my colleagues in the majority believe = would merit=20 a new trial, any error with respect thereto has not been preserved for = appellate=20 review.=20

Turning then to the jury's award of damages, there was sufficient = evidence to=20 demonstrate that plaintiff's termination was in violation of the City = Humans=20 Right Law and motivated by evil motive or intent so as to support the = punitive=20 damage award (see, Umansky v Masterpiece International, 276 AD2d = 692, 693=20 [2d Dept. 2000]). Nor does the award of compensatory damages as reduced = by the=20 trial court materially deviate from what is reasonable compensation = (see,=20 McIntyre v Manhattan Ford, Lincoln-Mercury, Inc., 256 AD2d 269 [1st = Dept.=20 1998]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. =
Decision=20 Date: September 10, 2008