OPINION & ORDER Before the Court is the motion for summary judgment of Defendants Good Samaritan Hospital (“Good Samaritan”), Bon Secours Charity Health System (“Bon Secours”), and Westchester Medical Center Health Network (“WMC”) (collectively, “Defendants”). (ECF No. 84.) For the following reasons, the motion is GRANTED. I. BACKGROUND The following facts are based on the parties’ Local Civil Rule 56.1 Statements, responsive 56.1 Statements, declarations, and supporting materials.1 The facts are undisputed except as noted. Westchester County Health Care Corporation (“WMCHealth”) is a network of affiliated hospitals in the Hudson Valley, including WMC. (Ds’ 56.1 Stmt. 1.) Bon Secours, also a part of WMCHealth, is a Catholic not-for-profit health system that includes Good Samaritan, located in Suffern, among other hospitals. (Id. 2.) As all Catholic hospitals are required to do, the hospitals of Bon Secours have adopted a code of conduct called the Ethical and Religious Directives for Catholic Health Care Services (the “ERDs”). (Id. 3.) As a condition of employment, all Bon Secours employees must agree to follow the ERDs. (Id.) A. Bon Secours Position Plaintiff Dr. Dan Giurca is a psychiatrist board-certified in Adult Psychiatry. (Id.
12-13.) In 2016, he was offered employment at Bon Secours but turned it down to work at Orange Regional Medical Center (“ORMC”), which is unaffiliated with WMCHealth. (Id. 14.) Plaintiff nevertheless asked to be kept in mind for moonlighting opportunities at Good Samaritan and began the process of submitting his application for medical staff privileges. (Id. 15.) Plaintiff received an employment contract on February 24, 2017, (id.), to which he raised several objections, including — referring to the ERDs — that in his view, it required physicians to “agree[] to the policies of a religious organization,” (ECF No. 89-9 at 3).2 In response, Naim Korca, a Bon Secours employee, told Plaintiff: Bon Secours is [a] faith based organization, created by the sisters of Bon Secours and the value[s] of the organization are in line with [the] catholic church values of serving the poor and most vulnerable categories of society. The values do not impede with your practice as [a] psychiatrist and [] conform [to] the laws of New York and [the] US. (Id. at 2.) In response to Plaintiff’s separate objection that the contract did not include insurance coverage, Korca said that the hospital might be able to cover Plaintiff’s insurance if he were hired as a per diem physician rather than under a service contract. (Id.) Plaintiff responded that “[p]er diem without contract would be better,” and added: I appreciate serving the poor but signing a contract recognizing the catholic church, can be problematic for some people. I have the right to practice my own religion. Keep in mind the catholic church has molested children — I have an issue with that, regardless of how many poor people they serve. (Id.) Korca responded that he would work on making Plaintiff a per diem physician. (Id.) On March 2, 2017, Plaintiff submitted some of his application materials to Bon Secours through an online portal and noted that “there were some issues with the contract but I will be per diem.” (ECF No. 89-11 at 4-5.) On March 9, 2017, Bon Secours asked Plaintiff to provide application materials that were still outstanding. (Id. at 3.) On March 22, 2017, Bon Secours sent Plaintiff a letter agreement. (ECF No. 89-10.) The new contract included a provision on the ERDs: “Your employment is subject to the policies, procedures and guidelines of [Bon Secours] and Hospital, including but not limited to…the [ERDs].” (Id. at 5.) On April 17, 2017, after not receiving the outstanding application materials, Bon Secours followed up with Plaintiff, asking him whether he intended to continue his application process. (ECF No. 89-11 at 2.) Plaintiff responded, “We are still discussing the terms but the contract language needs to state it is only for call from home via phone, not coming onsite.” (Id.) The Bon Secours employee responded, “I will hold the processing of the application until contacted to begin again or to cease any further.” (Id.) B. Position at Good Samaritan On October 4, 2018, ORMC terminated Plaintiff’s employment without cause. (ECF No. 89-12.) On November 5, 2018, Plaintiff reached out to an employee at Good Samaritan regarding his interest in an “ER + medical floor consultation psy job in the Suffern location.” (ECF No. 89-13 at 3.) The employee forwarded Plaintiff’s resumé to Tera Colavito, who was responsible for recruiting at Good Samaritan and who thought Plaintiff’s interest “may be worth exploring” because another doctor was looking to give up his “good Sam day.” (Id.) Colavito forwarded Plaintiff’s resumé to Corey Deixler, Senior Vice President of Physician Services for Bon Secours, among others, and in response, Deixler “recall[ed] there was an issue with this provider in the past.” (Id. at 2.) When asked what the issue was, Deixler responded that Plaintiff never worked at Good Samaritan but had been interviewed. (Id.) Colavito testified that at some point she reached out to Korca — whose name Plaintiff had mentioned in a conversation he had had with the Bon Secours Medical Director for Psychiatry, (id.) — and was told that Plaintiff had backed out of a previous contract because he did not want to work for a Catholic facility. (ECF No. 89-77 (“Colavito Depo 1″) at 38:15-23; see also ECF No. 89-78 (“Colavito Depo 2″) at 73:12-17 (Korca told Colavito that Plaintiff “had a problem with the contract around the language related to our Catholic identity.”).) On February 15, 2019, Plaintiff contacted Colavito directly, inquiring as to whether there were any open psychiatry jobs at Good Samaritan. (ECF No. 89-18 at 4; see D’s 56.1 Stmt. 25.) Plaintiff followed up on March 5 by telephone and recorded the conversation without Colavito’s knowledge, (Ds’ 56.1 Stmt. 27), as he did with all other phone calls that are part of the record. Plaintiff again asked about openings at Good Samaritan in Suffern and Colavito said that her understanding was that Plaintiff “had previously been offered a contract here and then took the contract back because of…our Catholic…affiliation,” and then asked whether anything had changed. (ECF No. 89-19 at 2.) Plaintiff responded that he declined the position because he was offered a better one at ORMC. (Id.) When Colavito asked whether Plaintiff was still at ORMC, he responded that he was, (id.), which he now admits was a lie, (Ds’ 56.1 Stmt. 30).3 Following this conversation, Plaintiff emailed Colavito, stating, “In our telephone conversation today you mentioned something about a clause in the contract offer from 2017 related to the Catholic Church. Is this the reason my application is not considered?” (ECF No. 89-18 at 4.) Colavito replied: I asked about the clause because it is my understanding that you backed out previously because you did not want to work for a Catholic Facility. If that information is inaccurate then I stand corrected. Our affiliation has not changed so I just didn’t want to pursue anything further if that remained a possible concern for you. I will review further and be in touch. (Id. at 3-4.) Plaintiff responded that “[t]here was a clause in the contract language that seemed strange and I asked Na[i]m Korca about it,” but confirmed that he was still interested in pursuing a job at Good Samaritan. (Id.) After speaking with Plaintiff, Colavito texted Dr. Nambi Salgunan, a psychiatrist at ORMC, and asked whether Plaintiff still worked there. (Ds’ 56.1 Stmt. 34.) After “check[ing] it out,” Dr. Salgunan responded on March 11, stating that “[n]o such name doctor” worked there. (Id.) Colavito testified that she also spoke with Dr. Bhupinder Gill, a psychiatrist from Bon Secours, who told her that Plaintiff had been terminated from ORMC due to “bizarre behavior.” (Colavito Depo. 2 at 70:15-24.)4 Plaintiff followed up on March 7, clarifying that when he previously applied to Bon Secours, he had a question about the per diem contract, “not that I ‘did not want to work for a Catholic facility.’” (ECF No. 89-18 at 3.) He also asked for a copy of the ERDs, but Colavito did not respond. (Id.) When asked at her deposition why she did not send Plaintiff a copy of the ERDs, Colavito stated, “There wasn’t a job available at that point and he had lied about his employment so I had no interest in pursuing anything further with him.” (Colavito Depo. 2 at 63:2-13.)5 When asked why she lost interest in interviewing Plaintiff, she testified, “Because when I had spoken to him he had told me that he was still employed by Orange Regional. When I learned that he was fired from there, I didn’t want to hire a psychiatrist that lied right from the start.” (Colavito Depo. 1 at 26:8-15.) On March 8, 2019, Plaintiff called Colavito inquiring as to whether there were any open psychiatrist positions at Good Samaritan. (ECF No. 89-21; Ds’ 56.1 Stmt. 39.) Colavito responded that there were no open positions but there might be some in the near future and she would reach out to him then. (ECF No. 89-21.) Plaintiff emailed her after the call, stating, It does not seem appropriate to be denied a job, and be discriminated against on the basis of religion. It appears that after I inquired about the clause in 2017, I was blacklisted. At present I was denied the consultation liaison position that I have been inquiring about since Oct 2018. The clause states that I have a right to ask questions, and the issue is legitimate. If a child comes to the ER distraught due to being raped by a Catholic priest, do you expect the doctor to call the Justice Center or follow the “[ERDs]” to cover up the crimes? As an Orthodox Christian do I have to become Catholic as a condition of employment? (ECF No. 89-18 at 2-3.) Colavito did not respond. On June 24, Plaintiff emailed Colavito once more, stating, I have not heard from you after my last email from Mar 8.…As directed by the contract terms, on Mar 7 I asked you for a copy of the [ERDs] and on Mar 8 you told me no jobs are available, even though one was available on Mar 5. I was not applying for a job as a priest (religious position), but as a doctor (secular position). The hospital cannot invoke the First Amendment defense. Asking a doctor to accept religious directives as a condition of employment, is effectively asking that doctor to change his existing religion. The EEOC stated that is illegal in the USA. (Id. at 2.) Colavito forwarded this email to Deixler with the text “Fyi…” (ECF No. 89-25 at 2.) On the same day, Plaintiff emailed an administrator named Loretta Modesto asking about job openings and attaching a January 2019 post about an open psychiatrist job at Bon Secours. (Ds’ 56.1 Stmt. 43.) Plaintiff did not receive a response. (P’s 56.1 Resp. 43.) On June 6, Plaintiff filed a charge of religious discrimination and retaliation with the EEOC, stating that Good Samaritan blacklisted him after he questioned a religious clause in the contract, resulting in him being denied a position in March 2019. (ECF No. 89-23.) C. Position at WMC In July 2019, Plaintiff sought a position at WMC and contacted Andrea Ruggiero, a recruiter responsible for filling positions at WMC, Mid-Hudson Regional Hospital in Poughkeepsie, and the Health Alliance Hospitals in Kingston. (Ds’ 56.1 Stmt. 50.) WMC had a separate hiring process from Bon Secours, which used administrators who only recruited for Bon Secours. (Id. 4.) WMC made hiring decisions based on the opinions of Dr. Stephen Ferrando, the chair of the Department of Psychiatry (the “Department”), and Dr. Abraham Bartell, the vice-chair of the Department. (Id. 5.) The screening process at WMC began with Bartell and Ferrando establishing the criteria for the position; then Human Resources (“HR”) helped the doctors identify potential candidates; and Bartell conducted an initial phone screen to gauge whether each candidate had a genuine interest and to identify the people he wanted to bring in for an in-person interview. (Id. 6.) The decision to call back candidates for in-person interviews rested with Bartell and Ferrando, but Ferrando largely deferred to Bartell. (Id.) If Bartell and Ferrando made the decision to hire a psychiatrist, that candidate would need to successfully apply for and obtain clinical privileges and a medical staff appointment through the WMCHealth Medical Staff Office as a pre-condition of employment. (Id. 7.) The credentialing and privileging process involves collecting information about the applicant’s background including past employment verifications, public profiles, medical malpractice, legal information and case logs. (Id. 8.) The reasons why the applicant left prior positions are also obtained. (Id. 9.) Generally, after all information is collected, the Credentialing Committee decides to grant or deny clinical privileges and a medical staff appointment. (Id. 10.) If “red flags” are uncovered, the application will not go to the Credentialing Committee, and instead the Medical Staff Office will alert the personnel who made the offer and ask them to reconsider. (Id. 11.) If the “red flags” are significant, “such as a questionable work history or lawsuits against prior employers, the person would not be credentialed.” (Id.)6 On July 18, Ruggiero forwarded Plaintiff’s CV to members of the Department, including Ferrando and Bartell. (Id. 55.) Bartell responded that it was “[w]orth looking at perhaps we can set up a phone interview and go from there.” (Id. 56.) Ferrando responded, “nocturnist?” which was one of the open positions at a WMC hospital in Valhalla, New York, and Bartell replied that they would need to see in what positions Plaintiff was interested. (Id.) On July 22, Ruggiero called Plaintiff, who expressed interest in relevant open positions. (Id. 57; see ECF No. 89-35.) At this time, there were three open positions at WMC: (1) an adult consultation-liaison psychiatrist (“CL”) position in Valhalla, (2) a nocturnist position in Valhalla, and (3) an outpatient and child/adolescent psychiatrist position in Poughkeepsie. (ECF No. 90 (“Bartell Decl.”) 3.) Defendants contend that CL positions at WMC require subspecialty board certification — specifically, fellowship training and board certification in “Consultation-Liaison Psychiatry,” (id.) — but the job posting stated only that candidates should be board-certified or board-eligible in psychiatry, (P’s 56.1 Resp. 83). During the call, Plaintiff expressed interest in positions at Good Samaritan, Bon Secours, and the WMC Valhalla hospital because of their proximity to his home, (ECF No. 89-35 at 6), but Ruggiero did not recruit for Bon Secours or Good Samaritan, (Ds’ 56.1 Stmt. 63). Nevertheless, during the phone call, Plaintiff asked Ruggiero to check whether Bon Secours has a religious affiliation, to which Ruggiero responded that it did not. (ECF No. 89-35 at 7.) Plaintiff further stated, “[S]omebody told me if that if [you] get a job at…that hospital or within that Bon Secours…core, you know, you have to, like, follow the directives of the Catholic Church as part of employment or something like that.” (Id.) Ruggiero responded, “No, that’s not accurate. There, WMC, our network is an equal opportunity employer.” (Id.) Plaintiff also inquired into a Bon Secours job posting from January 2019 and Ruggiero told him that she would look into it but the position was likely no longer available. (Id.) Following her conversation with Plaintiff, Ruggiero emailed Bartell and Ferrando, stating that she considered Plaintiff to be a viable candidate and that he would be open to positions in Valhalla. (ECF No. 89-41 at 3.) Bartell then asked Ruggiero to set up a telephone interview with Plaintiff. (Id.) Ruggiero followed up with Plaintiff by email later that day, stating that the Bon Secours position was open and that she would like to set up a phone interview for the CL position in Valhalla as soon as possible. (ECF No. 89-36 at 2.) Plaintiff replied with his availability for a phone interview and stated, “I am interested in the Bon Secours position. Someone told me that as a condition of employment the contract requires all doctors to abide by the religious directives of the Catholic church. Please advise if true.” (ECF No. 89-37 at 4.) Ruggiero responded that, to her knowledge, that information was inaccurate but she would clarify and get back to him. (Id. at 3.) Ruggiero and Plaintiff agreed that he would speak with Bartell at 10 a.m. the next day, July 23, 2019. (Id.) Ruggiero then requested assistance from her manager, Emily Mehedin, (ECF No. 89-76 at 61:6-20), who forwarded Plaintiff’s email to Deixler, who still worked for Bon Secours, (ECF No. 89-38 at 3-4). Deixler responded, “We were not aware you were talking to this individual. Please discuss with Barbara.” (Id.) Deixler was referring to Barbara Kukowski, in-house counsel for WMCHealth. (Ds’ 56.1 Stmt. 69.) On July 23 at 9:40 a.m., Ruggiero emailed Bartell, but the substance of that email was redacted in discovery as an attorney-client communication, (ECF No. 89-41; ECF No. 89-26 at 8), and at 9:54 a.m., Ruggiero emailed Plaintiff telling him that Bartell was not available to speak that morning at 10 am and they would need to reschedule, (ECF No. 89-40 at 5; ECF No. 89-75 at 42:23-43:10). Meanwhile, Kukowski discussed Plaintiff’s application with Jordy Rabinowitz, the chief HR officer for WMCHealth. (Ds’ 56.1 Stmt.
