Plaintiff commenced the instant action against defendants asserting a claim for discrimination on the basis of age, retaliation, hostile work environment and a claim for violation of his right to privacy. Defendants now move to dismiss plaintiff's age discrimination and retaliation and hostile work environment claims.

The relevant facts are as follows. At the time of the alleged incidents, plaintiff was an attending physician employed by Coler-Goldwater Speciality Hospital ("Coler") since 1981. [*2]Plaintiff was born on xx/xx/1940 and is currently 70 years old. In 1997, plaintiff became board-certified in internal medicine and qualifying pulmonary diseases. His certification expired in 2007. Defendants granted him a waiver permitting him to continue working for two years without board certification, which he regained in 2009. All doctors at Coler had to be reappointed every two years. Plaintiff was reappointed every two years, including after he initiated the instant lawsuit in October 2004, although plaintiff contends that in 2007 he received forms in connection with his reappointment late but that he ultimately was reappointed in a timely manner.

Plaintiff contends that certain actions taken regarding his employment constitute adverse employment actions within the meaning of the law and that these were taken either because of his age or in retaliation for his commencing this lawsuit. He alleges, and defendants concede, that he had to reschedule his vacation in 2006. Defendant RIMA reimbursed plaintiff for any monetary loss he suffered when forced to change his travel plans. He also alleges that various vacations of his were postponed or shortened in 1999 and 2000. His claims also include the allegations that he was assigned a greater patient workload than his peers, an allegation denied by defendants, and that he was assigned more high-risk patients. Neither party provides the number of patients assigned to plaintiff or any assessment of their risk-status at any given time. In addition, plaintiff contends that a transfer from one unit to another was an adverse employment action. Defendants respond that he was transferred from one AIDS unit to another whereas plaintiff asserts he was transferred from an AIDS unit to a "regular" ward where he could not practice his specialty in pulmonary medicine. After this transfer, plaintiff's title, hours and salary remained the same.

From May 27, 2005 through January 2006, plaintiff was the subject of three peer reviews in which Dr. Edouard Hazel, his supervisor at the time, was involved. The first was requested by plaintiff following a Mortality Review of a patient in which he was found to have acted improperly. In all three peer reviews, plaintiff was found to have improperly cared for patients. As a result, it was determined that he would be more closely supervised for a three-week period and that his performance would be reassessed at that time. At the end of that period, his performance was reassessed and was found to have improved and the additional supervision was discontinued. During this period, in August, 2005, plaintiff received an evaluation finding his clinical skills "unsatisfactory." Plaintiff alleges that he was unfairly subject to these reviews (one of which he requested), that these reviews unfairly singled him out since other doctors had also cared for the patients at issue and that the peer review did not support the original "Mortality Review" in its entirety. He alleges that these reviews and their allegedly unfair results were animated by age discrimination.

Plaintiff also claims he was denied a promotion to a position variously described in the papers as Associate Chief or Assistant Chief of Service. He alleges he was qualified and expressed interest in the position, which defendants deny. However, at his deposition, plaintiff states that he never actually applied for the position and that he does not know if the job opening was ever published. Finally, plaintiff alleges that all the aforementioned incidents created a hostile work environment.

Plaintiff brings his claims under Sections 296 and 297 of Article 15 of the New York State Executive Law. Just as with a claim under a federal anti-discrimination statute, a plaintiff may choose to proceed under either a "mixed motives" analysis or a "pretext" framework or [*3]under both. See Raskin v The Wyatt Co., 125 F.3d 55, 60 (2d Cir. 1997). In the instant case, plaintiff and defendants both analyze plaintiff's claim under the so-called "pretext" framework, so this court will do the same. This framework requires plaintiff to demonstrate (1) membership in a protected class, (2) qualification for the employment, (3) an adverse employment action and (4) circumstances that give rise to an inference of discrimination. See McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973). If the plaintiff establishes his prima facie case using this analysis, the burden then shifts to defendant to articulate a legitimate, non-discriminatory reason for the challenged action. See id. at 802-04. If the defendant does so, the burden shifts back to plaintiff to show that defendant's stated reason was merely a pretext for discrimination. See id.

Defendants are entitled to summary judgment dismissing plaintiff's claim of age discrimination as plaintiff fails to establish that any adverse employment actions were taken against him or that there were any circumstances giving rise to an inference of discrimination. The first two elements of the pretext analysis, membership in a protected class and qualification for employment, are not at issue here. The court therefore turns to whether plaintiff experienced an "adverse employment action." In order to constitute an adverse employment action on a discrimination claim, the federal courts have required a "materially adverse change" in the terms and conditions of employment, including, but not limited to, termination, demotion, material loss of benefits or a significant diminution of responsibilities. See Galabya v NYC Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted).

Plaintiff has failed to establish that he suffered an adverse employment action. Having to reschedule his vacation in 2006 (for which he was compensated), transfer to another unit while retaining his title and salary and unproved allegations of more and/or higher-risk patients do not constitute adverse employment actions. Denial of vacation leave does not constitute an adverse employment action. See Kaur v NYCHH, 688 F.Supp.2d 317, 332 (S.D.NY 2010); Baptiste v Cushman & Wakefield, 2007 WL 747796, at *9 n.4 (S.D.NY Mar. 7, 2007). Plaintiff's claims based on denials or rescheduling of his vacations in 1999 and 2000 are time-barred. Nor does a transfer to another division or department necessarily constitute an adverse action. Reassignment from a position of responsibility to one with menial tasks may raise an issue of triable fact (see Kessler, 461 F.3d at 207-10; Dillon v Morano, 497 F.3d 247, 254 (2d Cir. 2007)), but "if a transfer is truly lateral and involves no significant changes in an employee's condition of employment, the fact that he employee views the transfer... negatively does not itself render the... transfer [an] adverse employment action." Kessler, 461 F.3d at 207 (citing Williams v R.H. Donnelly Corp., 368 F.3d 123, 128 (2d Cir. 2004); Carter v State of New York, 151 Fed. Appx. 40 (2d Cir. 2005) (same); Ochei v All Care/Onward Healthcare, 2009 WL 890061, at * 8 (S.D.NY Mar. 31, 2009); Gorgone v Capozzi, 238 AD2d 308 (2nd Dept 1997) (in the Labor Law §740 context). In the instant case, plaintiff's transfer was lateral, as his salary, title and hours remained the same. In addition, plaintiff fails to provide any evidence to support his allegations that he was assigned a higher case load or higher-risk patients and, accordingly, those allegations cannot provide the basis for claims of adverse employment actions.

Plaintiff's negative employment evaluations and enhanced scrutiny for a brief period also do not constitute adverse employment actions. See Dauer v Verizon Communications Inc., 613 F.Supp.2d 446, 461 (S.D.NY 2009) (increased scrutiny is not an adverse employment action); Hall v NYC DOT, 701 F.Supp.2d 318, 335-36 (E.D.N.Y 2010) (same); Montgomery v Chertoff, [*4]2007 WL 1233551 * 12 (E.D.NY April 25, 2007) (same). Negative evaluations without tangible consequences also do not constitute adverse employment actions. See Garcia v NYC Admin. of Children's Services, 2007 WL 2822153 at *6 (S.D.NY Sept. 27, 2007); Montgomery, 2007 WL at *12. In the instant case, plaintiff's negative evaluations were not accompanied by any other consequences as he was repeatedly reappointed to his position and his pay and title remained unchanged.

Plaintiff also fails to establish that defendants failed to promote him although failure to promote can constitute an adverse employment action. To establish a claim for failure to promote, the plaintiff must prove that his age was the "but-for" cause of a decision to deny him the promotion. Alleva v NYC Department of Investigation, 696 F.Supp.2d, 273, 282-83 (E.D.NY 2010); Jenkins v NYS Banking Department, 2010 WL 2382417 at *12 (S.D.NY Sept. 30 2010). Where plaintiff has failed to even apply for the position, he cannot make out a claim for failure to promote. See Alleva, 696 F.Supp.2d at 282-83; Jenkins, 2010 WL 2382417 at *12. In the instant case, as plaintiff never applied for the position he asserts he was denied, he cannot make out a claim for failure to promote. See Alleva, 696 F.Supp.2d at 282-83; Jenkins, 2010 WL 2382417 at *12.

Because plaintiff fails to prove that he suffered an adverse employment action, the court need not turn to the last element of a prima facie case under thepretext framework, circumstances that give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. Such circumstances include "actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus" and "preferential treatment given to employees outside the protected class." Chertkova v Conn. Gen. Life Ins. Co., 92 F.3d 81 (2d Cir 1996). Nonetheless, even assuming arguendo that plaintiff did establish that he suffered an adverse employment action, he fails to allege any circumstances that give rise to an inference of discrimination. The mere fact that he was the oldest doctor at the hospital he worked at is insufficient to give rise to any inference of discrimination based on age. See Ochei v AllCare/Onward Healthcare, 2009 WL 890061 at *12 (S.D.NY 2009) (noting that "a plaintiff cannot make out a prima facie case of discrimination' merely by reasoning... [that] (1) something bad happened to him; (2) he is Filipino; (3) therefore the bad thing happened because he is Filipino.'" (citing Magadia v Napolitano, 2009 WL 510739 at *13 (S.D.NY Feb. 26, 2009))).

The court now turns to plaintiff's claim for retaliation. He alleges that he suffered adverse actions in retaliation for filing this lawsuit. In order to make out a prima facie case of retaliation, plaintiff must prove that (1) he engaged in a "protected activity" (that is, opposed or complained about unlawful discrimination); (2) the protected activity was known to defendant; (3) defendant took an adverse employment action and; (4) there is a causal connection between the protected activity and the adverse employment action. See Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004). If plaintiff makes out a prime face case, the burden shifts to defendant to show that it had legitimate, non-retaliatory reasons for the adverse employment action. See Williams v The City of New York, 38 AD3d 238 (1st Dept 2007). The burden then shifts back to the plaintiff to show that the non-retaliatory reasons were pretextual. See id.

As an initial matter, the standard for what constitutes an adverse employment action is lower for a claim for retaliation than a claim for discrimination. See Burlington Northern & [*5]Santa Fe Railway Co. v White, 548 U.S.53, 68 (2006); Kessler v Westchester County Dept. of Social Services, 461 F.3d 199, 207 (2 d Cir 2006) (citations omitted). Unlike in a discrimination case where an adverse employment action must materially affect the terms and conditions of plaintiff's employment, in a retaliation context, an adverse employment action is one which "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S. at 68; Kessler, 461 F.3d at 207.

Plaintiff fails to make out a prima facie case of retaliation because he cannot establish an adverse employment action even under this lower standard. He contends that defendants retaliated against him by delaying his reappointment application, assigning him unequal case loads, assigning him higher-risk patients and falsely criticizing his performance. Reassignment, enhanced scrutiny and negative evaluations of work performance which had no tangible consequences do not constitute adverse employment actions in a retaliation context. See Brutus v Silverseal Corp., 2009 WL 4277077 * at 8 (E.D.NY Nov. 24, 2009) (increased scrutiny does not constitute an adverse employment action). A delay in reappointment which ultimately had no adverse consequences does not constitute an adverse employment action either. Therefore, the court need not address the last element of a retaliation claim, the causal connection between the protected activity and the adverse employment action.

The court now turns to plaintiff's claim for hostile work environment. "A [] hostile work environment exists when the workplace is permeated with discrimination intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 (2004) (citation omitted). Moreover, "[p]laintiff should not be permitted to bootstrap' [her] alleged discrete acts of discrimination and retaliation into a broader hostile work environment claim... discrete acts constituting discrimination or retaliation claims... are different in kind from a hostile work environment claim that must be based on severe and pervasive discriminatory intimidation or insult." Khalil v State of New York, 17 Misc 3d 777, 784-85 (Sup Ct, NY County 2007) (citations omitted); Magadia, 2009 WL 510739 at 17. Hostile work environment claims cannot be predicated on discrete employment decisions regarding assignments and promotions or on negative evaluations. See Magadia, 2009 WL 510739 at 17. Rather, a claim for hostile work environment is "a wholly separate cause of action designed to address other types of work place behavior, like constant jokes and ridicule or physical intimidation." Id. Because plaintiff in the instant case has not alleged any instances of intimidation or insult, such as derogatory comments based on age, his claims for hostile work environment are dismissed.

Accordingly, defendant's motion for summary judgment granted to the extent that plaintiff's claims for discrimination, retaliation and hostile work environment are dismissed. Plaintiff's claim for violation of his right to privacy stands as defendants did not move to dismiss it. This constitutes the decision and order of the court.

Dated:Enter: _____________________

J.S.C.