Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Defendants’ Notice of Motion for Summary Judgment 1 Affirmation in Support for Defendants’ Motion for Summary Judgment with Accompanying Affidavits and Exhibits 2 Memorandum of Law in Support of Defendant’s Motion to Dismiss the Complaint 3 Plaintiff’s Affirmation in Opposition with Accompanying Affidavits and Exhibits 4 Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgement 5 Reply Memorandum of Law in Further Support of Defendant’s Motion to Dismiss 6 DECISION/ORDER Plaintiff Eyad Alhaj (“plaintiff”), a cardiologist employed by defendant New York City Health and Hospitals Corporation (“HHC”), Physician Affiliate Group of New York (“PAGNY”), claims that Kenneth Hupart, M.D., Lana Vardanian, M.D., Eric Chaikin, and Sabina Zak (collectively “defendants”), violated the New York State Human Rights Law (“SHRL”) and New York City Human Rights Law (“CHRL”) by subjecting him to a hostile work environment and subsequently retaliating against him because he wrote an email, based upon his race, national origin, and religion. Plaintiff also claims, within his Count on Hostile Environment, that he was terminated “for absolutely no reason,” and that he was terminated on September 11 “as retribution for the horror that unfolded that day.” He asserts that during the termination meeting, Chaikin commented to Dr. Hupert “Today is 9/11, right?,” wherein Dr. Hupart shook his head and said ‘Yes, it is,” and Chaikin then made a weird smile. Defendants moved for summary judgment dismissing the claim pursuant to CPLR §3212. As will be set forth below, the Court grants in part and denies in part defendants’ motion for summary judgment. Simply put, there is absolutely no evidence that any defendant who hired or arranged for plaintiff’s working schedule, assignments and conditions created a hostile work environment for plaintiff out of some discriminatory bias under the SHRL or CHRL. Nor is there any evidence that any of the defendants treated Alhaj in a disparate fashion. Defendants had the right to terminate plaintiff, who was a probationary employee, for any reason so long as it was not in violation of a statute or constitution. However, the Court believes that a jury could find that Chaikin’s alleged comment about 9/11, and his “weird” or “strange” smile1 to Hupart while making that statement at plaintiff’s termination hearing on 9/11, evinced a discriminatory intent. Furthermore, Chaikin was much more intimately involved in the CHF program than disclosed by defendants, thus creating an issue of fact as to whether he was a supervisor or manager and played a role in plaintiff’s termination. As such, the court will permit these issues concerning Chaikin’s actions and whether they could be imputed to the hospital to go to trial. FACTS Plaintiff was hired by PAGNY to work as a cardiologist at Coney Island Hospital (“CIH”) on September 14, 2014, and was an at will employee subject to a one-year probationary period ending on September 14, 2015. On or about January 16, 2015, plaintiff had a fractious interaction with Dr. Brady, the Chief Medical Officer at CIH and one of his supervisors, over his being one half hour late to a scheduled meeting. Plaintiff made a written complaint to his immediate supervisor, Dr. Khanna, claiming that Brady repeatedly used derogatory and profane language at him in front of co-workers; i.e. to “move his ass” after he was one half hours late to a meeting which Brady had requested. Nowhere did Alhaj assert in this complaint that Brady’s comments to him had anything to do with his race, national origin or religion. Plaintiff claims that he was late because he was treating other patients at the time. In contrast, by email to Sabina Zak dated 1/16/15, Dr. Brady memorialized that he had a “disturbing conversation” with Alhaj. Alhaj failed to attend a meeting requested by Brady at 9:45 so that he could make rounds with a cardiology fellow. Brady asserted that Alhaj and another doctor refused to provide coverage because they were “inappropriate, unprofessional and insubordinate.” On or about late July 2015, Dr. Hupart, the Chairperson of Medicine at Coney Island Hospital2 who is responsible for the medical care of all patients and the practice of doctors, asked plaintiff to prepare a program to improve outcomes for congestive heart failure (“CHF”) patients. Hupart asked plaintiff because he had “specific expertise and training in managing CHF patients.” and in fact had completed a fellowship in CHF. Defendants claim that plaintiff did not produce an outline for the program in a timely manner, and that when he did put together a plan, it violated Dr. Hupart’s instructions not to use extra resources or new hires, as his plan called for six to eight new hires and new resources. Plaintiff claims that the reason he was assigned to prepare the CHF program was “in hopes that he would fail,” although he presented no evidence to support this claim. Dr. Khanna, plaintiff’s supervisor, averred that Dr. Alhaj “was not hired to perform this task, but was supposed to function as a general cardiologist.” Sometime between late July and August 2015, plaintiff attended a counseling session where Dr. Hupart discussed plaintiff’s alleged continued failure to meet job expectations, including his failure to properly establish a cardiac program. Hupart invited Eric Chaikin, associate executive director for medicine to attend the meeting and serve as a witness. According to plaintiff’s 50-H testimony, there was no mention of his termination at this meeting. Plaintiff claims that he was assigned to the CHF program after the “Dr. Brady incident,” and that he was given the “most undesirable work shifts and overtime assignments” and was “requested to take on impossible assignments, tasks that could never be completed successfully or effectively, to the detriment of patient care.” However, apart from his assignment to the CHF program, plaintiff offered no specifics. He also complained that defendants “created a hostile work environment where they treated Dr. Alhaj as a lesser person based on his country of origin and background as a Syrian Muslim Arab,” although he presented no evidence that while he was working at Coney Island Hospital that any of the defendants possessed any animus towards him based on his nationality or religion or that his assignment to the CHF program was outside of his job responsibilities. Plaintiff admitted that prior to his termination date, no one at Coney Island Hospital — doctors, nurses etc — ever made any negative or derogatory comments concerning his ethnicity or where he obtained his medical degree. Aside from the Brady incident and plaintiff’s failure to properly establish a CHF program, defendants documented a number of other incidents. On June 3, 2015, the Director of Human Resources received a complaint that Alhaj, who was required to attend the New Employee Orientation, signed in each day but then left as soon as he signed in resulting in one Young Lee not giving him credit for having completed any of the three sessions (Exhibit J to Defendants’ motion for summary judgment). On August 7, 2015, Dr. John Maese notified Dr. Khanna by email that Alhaj had failed to fulfill his obligation to handle an admission denial. Alhaj refused to discuss this case with the medical director, claiming that he was too busy. Sometime around Labor Day in 2015, Dr. Hupart decided to terminate Alhaj and informed Dr. Brady and Dr. Maese, to whom he reported; he also discussed the termination with PAGNY human resources. ON September 11, 2015, Dr. Hupart called plaintiff to a meeting to inform him that his services were no longer needed at CIH; Sabina Zak, Chief Affiliation Officer at PAGNY; Erik Chaikin, and Dr. Vardanian were also present. Plaintiff testified at his EBT that with a “strange smile on his face,” Chaikin looked at Dr. Hupart and said, “Today is 9/11, right?, and that Dr. Hupart shook his head and said ‘Yes, it is.’” Plaintiff further testified that he interpreted the statements to mean that he was terminated on 9/11 to send the message: “Look, you are Middle Eastern, and you are a Muslim. Remember 9/11, and hush.” Plaintiff claims that Chaikin was involved in the decision to terminate him because of his comment about 9/11 during the termination meeting, and his role in administering the cardiology department and the CHF program. Defendants argue that Chaikin’s comment was neutral on its face, and there is no evidence that one stray remark was connected to any decisions made by the Hospital through Dr. Hupart concerning plaintiff s employment. They also claim that Chaikin played no role in Alhaj’s termination and that he had no authority over Alhaj. Chaikin testified at the 50-h hearing that his duties included “planning any programs in medicine, organizing, budgeting, directing what the executive director of the hospital thought needed to be done, or working with the chairman of medicine and addressing his needs in terms of day-to-day operations of the department.” Defendants, including Chaikin, grossly minimized Chaikin’s involvement with the CHF program and Alhaj. While Chaikin claims his first meeting with Alhaj was during a counseling session in August, the record reveals that Chaikin was involved with the CHF program from its inception. By email dated June 29, 2015, Huppart notified Alhaj and Dr. Khanna and cc’d Chaikin that there were disappointing outcomes from CHF data that the hospital reported and that he wanted to meet with both of them regarding “their take” on the hospitals current CHF initiatives and how the hospital could better address CHF for patients. By email dated August 3, 2015 to his supervisor John Masse, Hupart memorialized his meeting with Alhaj, Khanna and Chaikin the week before where in they presented (meaning Khanna and Alhaj) a program was “too large in scope but that they will work with me (Huppart) and Eric (Chaikin) to “right size” and improve on our 30d re admit rate. “ After oral argument, this court, by Order dated October 21, 2019, dismissed the case against Lana Vardanian and Sabina Zak because plaintiff presented no evidence at all about them, much less that they created a hostile environment or acted with discriminatory intent based upon his race, national origin or religion. In fact, plaintiff admitted at his December 1, 2015 EBT that during his time at CIH before being terminated, no other staff members, doctors, nurses, or “anyone…employed by the hospital” ever made any negative comments or derogatory comments” concerning his ethnicity or religious belief. Plaintiff also agreed to withdraw his claim concerning Dr Brady. Specifically, there is no evidence any defendant subjected Alhaj to disparate treatment by treating him in an abusive or derogatory manner or worse than other Non-Arab or Muslin doctors. Nor is there any evidence they anyone retaliated against plaintiff after he wrote a January 18, 2015 concerning Brady’s alleged treatment of him. A hostile work environment exists only where the workplace is “permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of ” of employment and create an abusive working environment.” Chiara v. Town of New Castle, 126 A.D.3d 111, 120 (2d Dept. 2015). To the extent that the Court did not explicitly dismiss plaintiff’s claim of hostile work environment as against the remaining defendants it does so now. Plaintiff’s bare allegation that non-Muslim doctors did not receive similarly unfavorable treatment, and hence were not subject to such a hostile environment, is simply not supported by any evidence. Plaintiff complained that he was treated as a “lesser person based on his county of origin and background as a Syrian Muslim” to the extent that he was given “impossible” work assignments and the “most undesirable work shift.” However, plaintiff did not proffer any evidence, much less even specify how his work assignments were impossible or undesirable, or how the non-Muslim doctors were treated more favorably than Muslim doctors. Furthermore, plaintiff presented absolutely no evidence that Brady or Hupart assigned Alhaj to the CHF program as a retaliatory act or for any reason other than that Alhaj was eminently qualified to work on improving the program. The Court allowed the case to proceed solely on the issue of whether Alhaj’s termination occurred under circumstances giving rise to an inference of discrimination. Plaintiff contends that defendants’ purposely set Alhaj up for failure by assigning him to the CHF program without providing him with the requisite staff or resources and then used his “designed failure” as pretext. Plaintiff also contends that after defendants terminated Alhaj they adopted Alhaj’s CHF plan and realigned resources at the administrative level. After the hearing the court requested that the parties brief whether Chaikin’s alleged singular comment and “weird smile” to Hupert at the termination hearing was indicative of discrimination which could be imputed back to the decision makers (Hupert and CIH) to terminate Alhaj, and whether Chaikin played a role in that decision.3 LEGAL ANALYSIS The court has already dismissed the action against two defendants and, as set forth above, finds that there is no evidence that plaintiff was assigned to extra duties or responsibilities or treated in a disparate fashion during his probationary period up to the date of his termination due to his national origin, religion or race. A probationary employee may “be dismissed for almost any reason, or for no reason at all” so long as the termination was not in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law. Mtr. of Gagedeen v. Ponte, 170 A.D.3d 1013, 1014 (2d Dept. 2019); Mtr. of Johnson v. County of Orange, 138 A.D.3d 850, 851 (2d Dept. 2016); Mtr. of Young v. City of New York, 68 Misc. 3d 514, 517 (Sup. Ct. Kings Co. 2020). The proponent of a motion for summary judgment bears the burden of showing that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y2d 320, 324 (1986); Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 306 (1st Dept 2007); The movant’s burden is “heavy,” and the facts “must be viewed in the light most favorable to the nonmoving party.” William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y. 3d 470, 475 (2013); Ledbetter v. Department of Educ. of the City of N.Y, 2021 NY Slip Op 30324(U), 2021 N.Y. Misc. LEXIS 449 (Sup. Ct., N.Y. Co. 2021) at 20. Upon proffer of evidence establishing a prima facie case by the movant, “the party opposing a motion for summary judgment bears the burden of producing evidentiary proof in admissible form sufficient to require a trial of material questions of fact.” People v. Grasso, 50 A.D. 3d 535, 545(1st Dept 2008). “A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” Ruiz v. Griffin, 71 A.D. 3d 1112, 1115 (2d Dept 2010). See also, Walker v. Ryder Truck Rental & Leasing, 206 A.D.3d 1036, 1037-38 (2d Dept. 2022); Ledbetter, supra at 21. The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.” Walker, supra, 206 A.D. 3d at 1038; Charlery v. Allied Tr. Corp., 163 A.D. 3d 914, 915 (2d Dept. 2018). See, Chimbo v. Bolivar, 142 A.D. 3d 944, 945 (2d Dept. 2016). The court does not sit “as a super-personnel department that reexamines an entity’s business decisions” in an employment discrimination case.’ Baldwin v. Cablevision Sys. Corp. 65 A.D. 3d 961. 966 (1st dept 2009) . Thus a plaintiff alleging discrimination “must do more than challenge the employer’s decision as contrary to sound business or economic policy,” since such an argument, without more, does not give rise to an inference that the [adverse action] was due to discrimination” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 120 (1st Dept. 2012) (plaintiff’s questioning of business judgment by suggesting that that the departmental problems cited by Montefiore were “stale,” not plaintiff’s fault, and, in any event, outweighed by plaintiff’s alleged achievements as chairman questions not give rise to inference of discrimination); Bailey v. New York Westchester Sq. Med. Ctr., 38 AD3d 119, 124 (1st Dept 2007). However, an employer’s invocation of the business judgment rule does not insulate its decisions from all scrutiny in a discrimination case. Weiss v. JPMorgan Chase & Co., 332 Fed. Appx. 659 (2d Cir. 2009); See, Melman, supra, 98 A.D. 3d at 134. Therefore, it does not matter whether the employer’s decision was fair or correct, or whether the stated reason for adverse action was good, bad or petty, so long as the stated reason for the action was non discriminatory. Melman, supra, 98 A.D. 3d at 121, citing to Forest v. Jewish Guild for the Blind, 3 N.Y. 3d 295, 308 n.5 (2004). To establish a prima facie case of racial discrimination under Title VII and both the SHRL and CHRL, the plaintiff must establish that he: (1) is a member of a protected class; (2) is qualified for the position; (3) suffered an adverse employment action; and that (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Forrest, supra, 3 N.Y.3d at 305; Averbeck v. Culinary Inst. of Am., 180 A.D.3d 862, 862 (2d Dept. 2020); Hamburg v. N.Y.U. Sch. Of Medicine, 155 A.D. 3d 66, 74 (2d Dept. 2017); Godino v. Premier Salons, Ltd., 140 A.D.3d 1118, 1119 (2d Dept. 2016). An inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.” Sethi v. Narod, 12 F. Supp. 3d 505, 536 (E.D. N.Y. 2014) citing to Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196, 204 (S.D.N.Y.2011). See also Moore v. Kingsbrook Jewish Med. Ctr., 2013 U.S. Dist. LEXIS 107111 (E.D.N.Y. July 30, 2013) (same). The burden then shifts to the employer to demonstrate that the employment decisions taken against the plaintiff were for ” legitimate, independent, and nondiscriminatory reasons to support its employment decision” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 114 (1st Dept. 2012); Balsamo v. Savin Corp., 61 A.D. 3d 622-23 (2d Dept. 2009). Plaintiff must then prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination and that discrimination was the real reason. Gorzynski v. Jet Blue Airways Corp., 596 F. 3d 93, 106 (2d Cir. 2010); Dawson v. City of N.Y 2013 U.S. Dist. LEXIS 117744 ( S.D. N.Y. 2013)’ Forrest, supra, 3 N.Y.3d at 305. The burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff. Stephenson v. Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 6 N.Y.3d 265, 271 (2006). To establish entitlement to summary judgment dismissing a claim of alleged discrimination under the State HRL, the defendant must demonstrate that the plaintiff cannot make out a prima facie claim or, after offering a legitimate, nondiscriminatory reason for the employment action, that there is no material issue of fact as to whether the explanations were pretextual. Ellison v. Chartis Claims, Inc., 178 A.D. 3d 665, 667 ( 2d Dept. 2019). See. Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Keceli v. Yonkers Racing Corp., 155 AD3d 1014, 1015. To defeat the motion, the plaintiff must raise a triable issue of fact as to whether the reasons proffered by the defendant were merely a pretext for discrimination. Ellison supra at 668. See, Forrest, supra. 3 N.Y. 3d at 307; Furfero v. St. John’s Univ., 94 A.D. 3d at 697. The Second Circuit has advised district courts to be “particularly cautious about granting summary judgment to an employer in a discrimination case” where “the merits turn on a dispute as to the employer’s intent4.” LeBlanc v. UPS, 2014 U.S. Dist. 50760 at 28 (S.D.N.Y. 2014) citing to Gorzynski v. JetBLue Airways Corp., 596 F. 3d 93, 101 (2d Cir.2010). See, Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 2011 U.S. Dist. LEXIS 84790 (S.D.N.Y. 2011) at 15-16. This is because “employers are rarely so cooperative” as to notate the file that they are taking an adverse action “for a reason expressly forbidden by law.” Bickerstaff v. Vasser College, 196 F 3d 435, 338 (2d Cir. 1999); Hawkins v. City of NY, 2005 U.S. Dist. LEXIS 15898 at 18 (S.D.N.Y. 2005). Since direct evidence of an employer’s discriminatory intent will “rarely be found, ‘affidavits and depositions must be carefully scrutinized” for circumstantial evidence.’” Schwapp v. Town of Avon, 118 F. 3d 106, 110 (2d Cir. 1997); Mihalik, supra at 16. (citations omitted). Defendants can only meet their prima facie burden by tendering sufficient evidence to demonstrate the absence of any material issues of fact with regard to plaintiff’s discrimination claims. Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 (2014); Chiara v. Town of New Castle, supra, 126 A.D.3d at 120. This is a heavy burden because the facts must be viewed in the light most favorable to the nonmoving party. Id. On the other hand, “the favorable treatment accorded to a plaintiff’s complaint is not limitless and, as such, conclusory allegations — claims consisting of bare legal conclusions with no factual specificity” are insufficient to survive a motion for a judgment dismissing the complaint, Cagino v. Levine, 199 A.D.3d 1103, 1104 (3d Dept. 2021). “Mere conclusions, expressions of hope or unsubstantiated allegations” are insufficient for this purpose.” Bailey v. Bklyn Hosp. Ctr, 2017 NY Slip Op. 30013 (U) (Sup. Ct, N.Y. Co. 2017). Even in the discrimination context, a plaintiff must provide more than conclusory allegations and show more than “some metaphysical doubt as to the material facts.” Gorzynski, supra, 596 F.3d at 101 Claims brought pursuant to the CHRL require a separate analysis, See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109, 113 (2d Cir. 2013). Holleman v. Art Crating Inc, 2014 U.S. Dist. LEXIS 139916 ( E.D.N.Y. 2014). The Local Civil Rights Restoration Act of 2005 (Local Law No. 85 (2005) of City of NY) (“Restoration Act” ) clarified that the City HRL”s provisions must be construed independently and more liberally from their similar state and federal counterparts (Mihalik v. Credit Agreicole Cheuvreux N.A., supra, 715 F. 3d at 109 citing to Williams v. NYC Hous Auth. 61 A.D. 3d 62, 66 (1st Dept. 2009)) and “broadly in favor of discrimination plaintiffs,” even when such protection is not available under federal or state law. Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011). The federal standard should be considered ” a floor below which the City [HRL] fall, rather than a ceiling above which the law cannot rise.” Mihalek v. Credit Agricole Cheuvreux , supra at 709 citing to Williams, supra, 61 A.D. 3d at 66-67. When analyzing discrimination cases under the CHRL, the court must use the burden shifting analysis under McDonnell Douglas as well as a mixed motive analysis which imposes a lesser burden on a plaintiff opposing such a motion. Ellison v. Chartis Claims, Inc, supra, 178 A.D. 3d at 668; Hamburg v. N.Y.U., supra. 55 A.D. 3d at 73; Melman, supra, 98 A.D. 3d at 113, 127; Bennett v. Health Mgt. Sys., Inc., 92 A.D. 3d 29, 45 (1st Dept. 2011). The McDonnell Douglas and mixed motive frameworks diverge only after the plaintiff has established a prima facie case of discrimination and the defense has responded by presenting admissible evidence of “legitimate, independent and non discriminatory reasons” to support its employment decision. Hamburg, supra, 155 A.D. 3d at 73. Whereas under McDonnell Douglas, the plaintiff must show “that the legitimate reasons proffered by the defendant were pretextual,” under the mixed motive analysis, the plaintiff must produce evidence that the unlawful discrimination was one of, even if not the sole motivating factors for the employment decision. Hamburg, supra , 155 A.D. 3d at 73 citing to Melman, supra 98 A.D. 3d at 127. See, Weiss v. JPMorgan Chase & Co., 2010 U.S. Dist LEXIS 2505 (S.D.N. Y. 2010) citing to Aulicino v. New York City Dep’t of Homeless Servs.., 580 F.3d 73, 80 (2d Cir 2009); Crookendale v. NYC Health & Hosps. Corp., 2018 N.Y. Slip Op 31309(U), 2018 N.Y. Misc LEXIS 2586 (Sup. Ct. N.Y. Co. 2018). The “salient difference” between the two standards is that at the final step, the plaintiff has the ” lesser burden of raising an issue as to whether the action was motivated at least in part by discrimination…or was more likely than not based in whole or in part of discrimination.” LeBlanc v. UPS, 2014 U.S. Dist. Lexis 50760 (S.D.N.Y. 2014); Dozier v. Federal Express, Inc., 2018 N.Y. Slip Op 31638U, 2018 N.Y. Misc. LEXIS 3058 ( Sup, Ct., N.Y. Co. 2018). The Appellate Divisions have held that under the CHRL, summary judgment should not be granted unless the employer establishes as a matter of law that “discrimination play[ed] no role” in its actions. Mihalik, 715 F.3d at 110 (quoting Williams v. N.Y.C. Hous. Auth., supra. 61 A.D.3d at 78; Bailey v. Bklyn Hosp Ctr, supra, 2017 NY Slip Op. 30013 (U); Lefort v. Kingsbrook Jewish Med. Ctr, 2019 NY Slip Op 51018(U) at 3,
