Supreme Court, Kings County, October 10, 2022

Sylvia O. Hinds-Radix, Corporation Counsel, New York City, for defendants.

Ranni Law Firm, Florida (Joseph J. Ranni of counsel), for plaintiff.

Plaintiff Eyad Alhaj, a cardiologist employed by defendants New York City Health and Hospitals Corporation and 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. Hupart "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" {**77 Misc 3d at 1065}smile^[FN1] 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 congestive heart failure 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.

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 coworkers, i.e. to "move his ass" after he was one-half hour late to a meeting which Brady had requested. Nowhere did Alhaj assert in this complaint that Brady's [*2]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 January 16, 2015, Dr. Brady memorialized that he had a "disturbing conversation" with Alhaj. Alhaj failed to attend a meeting requested by Brady at 9:45 a.m. 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."

In or about late July 2015, Dr. Hupart, the chairperson of medicine at Coney Island Hospital^[FN2] 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.{**77 Misc 3d at 1066} 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 General Municipal Law § 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 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{**77 Misc 3d at 1067} the three sessions (exhibit J to defendants' mot for summary judgment). On August 7, 2015, Dr. John Maese notified Dr. Khanna by [*3]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, Eric Chaikin, and Dr. Vardanian were also present. Plaintiff testified at his examination before trial (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, Hupart 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 hospital's current {**77 Misc 3d at 1068}CHF initiatives and how the hospital could better address CHF for patients. By email dated August 3, 2015, to his supervisor John Maese, Hupart memorialized his meeting with Alhaj, Khanna and Chaikin the week before wherein they presented (meaning Khanna and Alhaj) a program that was "too large in scope but that they will work with me [Hupart] 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 beliefs. 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 Muslim doctors. Nor is there any evidence that anyone retaliated against plaintiff after he wrote a January 18, 2015 email concerning Brady's alleged treatment of him. A hostile work [*4]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 . . . employment and create an abusive working environment." (Chiara v Town of New Castle, 126 AD3d 111, 125 [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 count[r]y 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{**77 Misc 3d at 1069} 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 Hupart at the termination hearing was indicative of discrimination which could be imputed back to the decisionmakers (Hupart and CIH) to terminate Alhaj, and whether Chaikin played a role in that decision.^[FN3]

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. (Matter of Gagedeen v Ponte, 170 AD3d 1013, 1014 [2d Dept 2019]; Matter of Johnson v County of Orange, 138 AD3d 850, 851 [2d Dept 2016]; Matter of Young v City of New York, 68 Misc 3d 514, 517 [Sup Ct, Kings County 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.[*5](Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007].) The movant's burden is "heavy," and the facts "must be viewed {**77 Misc 3d at 1070}in the light most favorable to the non-moving party." (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; Ledbetter v Department of Educ. of the City of N.Y., 2021 NY Slip Op 30324[U], *20 [Sup Ct, NY County 2021].) Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." (People v Grasso, 50 AD3d 535, 545 [1st Dept 2008] [internal quotation marks omitted].) "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 AD3d 1112, 1115 [2d Dept 2010] [internal quotation marks omitted]; see also Walker v Ryder Truck Rental & Leasing, 206 AD3d 1036, 1037-1038 [2d Dept 2022]; Ledbetter 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, 206 AD3d at 1038; Charlery v Allied Tr. Corp., 163 AD3d 914, 915 [2d Dept 2018]; see Chimbo v Bolivar, 142 AD3d 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 AD3d 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 the inference that the [adverse action] was due to . . . discrimination" (Melman v Montefiore Med. Ctr., 98 AD3d 107, 120 [1st Dept 2012] [plaintiff's questioning of business judgment by suggesting 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 did 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, 98 AD3d at 134.) Therefore, it does not matter whether the employer's decision was fair or correct, or whether the stated reason for adverse{**77 Misc 3d at 1071} action was good, bad or petty, so long as the stated reason for the action was nondiscriminatory. (Melman, 98 AD3d at 121, citing to Forrest v Jewish Guild for the Blind, 3 NY3d 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, 3 NY3d at 305; Averbeck v Culinary Inst. of Am., 180 AD3d 862, 862 [2d Dept 2020]; Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 74 [1st Dept 2017]; Godino v Premier Salons, Ltd., 140 AD3d 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 [ED NY 2014], citing to Howard v MTA Metro-N. Commuter R.R., 866 F Supp 2d 196, 204 [SD NY 2011]; see also Moore v Kingsbrook Jewish Med. Ctr., 2013 WL 3968748, 2013 US Dist LEXIS 107111 [ED NY, July 30, 2013, No. 11-CV-3625 (MKB)] [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 AD3d 107, 113-114 [1st Dept 2012]; Balsamo v Savin Corp., 61 AD3d 622, 623 [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 Jetblue Airways Corp., 596 F3d 93, 106 [2d Cir 2010]; Dawson v City of New York, 2013 WL 4504620, 2013 US Dist LEXIS 117744 [SD NY, Aug. 19, 2013, No. 09 Civ 5348(PGG)]; Forrest, 3 NY3d at 305.) The burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff. (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006].)

To establish entitlement to summary judgment dismissing a claim of alleged discrimination under the SHRL, 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{**77 Misc 3d at 1072}v Chartis Claims, Inc., 178 AD3d 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 [2017].) 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 at 668; see Forrest, 3 NY3d at 307; Furfero v St. John's Univ., 94 AD3d 695, 697 [2d Dept 2012].)

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 intent."^[FN4] (LeBlanc v United Parcel Serv., 2014 WL 1407706, *10, 2014 US Dist LEXIS 50760, *28 [SD NY, Apr. 11, 2014, No. 11 Civ 6983(KPF)], citing to Gorzynski v Jetblue Airways Corp., 596 F3d 93, 101 [2d Cir 2010]; see Schwapp v Town of Avon, 118 F3d 106, 110 [2d Cir 1997]; Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 2011 WL 3586060, *5, 2011 US Dist LEXIS 84790, *15-16 [SD NY, July 29, 2011, No. 09 Civ 1251(DAB)].) This is because "[e]mployers are rarely so cooperative" as to notate in the file that they are taking an adverse action "for a reason expressly forbidden by law." (Bickerstaff v Vassar Coll., 196 F3d 435, 448 [2d Cir 1999]; Hawkins v City of New York, 2005 WL 1861855, *7, 2005 US Dist LEXIS 15898, *18 [SD NY, Aug. 5, 2005, No. 99 Civ 11704(RWS)].) 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 F3d 106, 110 [2d Cir 1997]; Mihalik, 2011 WL 3586060, *5, 2011 US Dist LEXIS 84790, *16.) 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 NY3d 824, 833 [2014]; Chiara v Town of New Castle, 126 AD3d 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{**77 Misc 3d at 1073} judgment dismissing the [*6]complaint. (Cagino v Levine, 199 AD3d 1103, 1104 [3d Dept 2021].) "[M]ere conclusions, expressions of hope or unsubstantiated allegations . . . are insufficient for this purpose." (Bailey v Brooklyn Hosp. Ctr., 2017 NY Slip Op 30013[U], *6 [Sup Ct, NY County 2017] [internal quotation marks omitted].) 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, 596 F3d at 101.)

Claims brought pursuant to the CHRL require a separate analysis. (See Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 109, 113 [2d Cir 2013]; Holleman v Art Crating Inc., 2014 WL 4907732, 2014 US Dist LEXIS 139916 [ED NY, Sept. 30, 2014, No. 12 Civ 2719(VMS)].) The Local Civil Rights Restoration Act of 2005 (Local Law No. 85 [2005] of City of NY) clarified that the CHRL's provisions must be construed independently and more liberally from their similar state and federal counterparts (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d at 109, citing to Williams v New York City Hous. Auth., 61 AD3d 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 NY3d 472, 477-478 [2011].) The federal standard should be considered "a floor below which the City [HRL] cannot fall," rather than a ceiling above which the local law cannot rise. (Mihalik v Credit Agricole Cheuvreux N. Am., Inc. at 109 [emphasis omitted], citing to Williams, 61 AD3d at 66-67.)

When analyzing discrimination cases under the CHRL, the court must use the burden shifting analysis under McDonnell Douglas (McDonnell Douglas Corp. v Green, 411 US 792 [1973]) as well as a mixed motive analysis which imposes a lesser burden on a plaintiff opposing such a motion. (Ellison v Chartis Claims, Inc., 178 AD3d at 668; Hamburg, 155 AD3d at 73; Melman, 98 AD3d at 113, 127; Bennett v Health Mgt. Sys., Inc., 92 AD3d 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 nondiscriminatory reasons" to support its employment decision. (Hamburg, 155 AD3d at 73.) Under McDonnell Douglas, the plaintiff must show "that the legitimate reasons proffered by the defendant were [pretextual]," {**77 Misc 3d at 1074}whereas 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, 155 AD3d at 73, citing to Melman, 98 AD3d at 127; see Aulicino v New York City Dept. of Homeless Servs., 580 F3d 73, 80 [2d Cir 2009]; Weiss v JPMorgan Chase & Co., 2010 WL 114248, 2010 US Dist LEXIS 2505 [SD NY, Jan. 13, 2010, No. 06 Civ 4402(DLC)]; Crookendale v New York City Health & Hosps. Corp., 2018 NY Slip Op 31309[U] [Sup Ct, NY County 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 on discrimination." (LeBlanc v United Parcel Serv., 2014 WL 1407706, *12, 2014 US Dist LEXIS 50760, *45; Dozier v Federal Express, Inc., 2018 NY Slip Op 31638[U] [Sup Ct, NY County 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 F3d at 114, quoting Williams v New York City Hous. Auth., 61 AD3d at 76 [emphasis omitted]; Bailey v Brooklyn Hosp. Ctr., 2017 NY Slip Op 30013[U]; Lefort v Kingsbrook Jewish Med. Ctr., 64 Misc 3d 1205[A], 2019 NY Slip Op 51018[U], *3 [Sup Ct, [*7]Kings County 2019]; Ellison v Chartis Claims, Inc., 178 AD3d 665, 668 [2d Dept 2019]; see Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 73 [1st Dept 2017].) A defendant, as the moving party, must therefore make a prima facie showing "that there is no evidentiary route" that would could allow a jury to find that discrimination played a role in their challenged actions. (Ellison, 178 AD3d at 668; Watson v Emblem Health Servs., 158 AD3d 179, 183 [1st Dept 2018]; Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 200 [1st Dept 2015]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [1st Dept 2011].)

If this burden is met, a plaintiff may defeat summary judgment by offering "some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" (Watson, 158 AD3d at 183; Cadet-Legros, 135 AD3d at 200; Melman, 98 AD3d at 127; Dozier, 2018 NY Slip Op 31638[U], *13). This is because once a plaintiff introduces "pretext" evidence, "a host of determinations properly made only by a jury come into play" (Watson, 158 AD3d at 183; Bennett, 92 AD3d at{**77 Misc 3d at 1075}43), including whether a "false[, misleading, or incomplete] explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons" (Bennett at 43).

Here, it is undisputed that plaintiff has established the first three elements of a prima facie case of discrimination. As a Syrian Muslim Arab, plaintiff is a member of a protected class. (See Abdelal v Kelly, 857 Fed Appx 30 [2d Cir 2021] [Egyptian national origin, Middle Eastern ancestry and Muslim religion]; Tihan v Apollo Mgt. Holdings, L.P., 2021 NY Slip Op 30247[U], *25 [Sup Ct, NY County 2021] [plaintiff, as a Muslim of Turkish descent, was a member of a protected class]; Sarr v Saks Fifth Ave. LLC, 2016 NY Slip Op 31751[U], *3 [Sup Ct, NY County 2016] [same].) Furthermore, plaintiff suffered an adverse employment action when he was terminated from his position (see Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000]), and was also likely qualified to hold the position of physician as he was hired for the position.

Therefore, the sole issue is whether Alhaj's termination occurred under circumstances giving rise to an inference of discrimination. Per set precedent cited above, this court agrees with defendants that they are under no obligation to justify their assignment of Alhaj to the CHF program or the strictures or requirements they imposed upon him in planning for the program. Therefore it is not for this court to conduct a mini-hearing as to the veracity of Alhaj's success or failure in the CHF program so long as discrimination played no role in his termination.

"No one particular type of proof is required to show that Plaintiff's termination occurred under circumstances giving rise to an inference of discrimination." (Sethi v Narod, 12 F Supp 3d at 536, citing to Moore, 2013 WL 3968748, *6, 2013 US Dist LEXIS 107111, *20.) An inference of discrimination can be drawn from circumstances such as "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's [adverse employment action]." (Abdu-Brisson v Delta Air Lines, Inc., 239 F3d 456, 468 [2d Cir 2001]; Sethi, 12 F Supp 3d at 536.) Alhaj claims that an inference of discrimination can be discerned by Chaikin's comment to Dr.{**77 Misc 3d at 1076} Hupart "Today is 9/11, right?," [*8]wherein Dr. Hupart shook his head and said "Yes, it is," and Chaikin then made a weird smile. Plaintiff interprets this statement and gesture 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."

There are a dearth of cases which address whether one comment is sufficient to raise an inference of unlawful termination due to discrimination, as opposed to a legion of cases which state that random comments are usually not sufficient to establish a hostile work environment.^[FN5] To establish a prima facie case under a hostile work environment theory a plaintiff must show that its workplace was "permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter" the conditions of employment and create an abusive environment. (Gorzynski v JetBlue Airways Corp., 596 F3d 93, 102 [2d Cir 2010]; Fullwood v Association for the Help of Retarded Children, Inc., 2010 WL 3910429, 2010 US Dist LEXIS 107713 [SD NY, Sept. 28, 2010, No. 08 Civ 6739(DAB)].) A plaintiff need no longer establish severe and pervasive conduct under the more relaxed CHRL standard, and only has to demonstrate "differential treatment"—that he was treated less well than other employees due to his protected status because of discriminatory intent, and summary judgment should be denied in "borderline" cases (Williams v New York City Hous. Auth., 61 AD3d at 76, 80; see Golston-Green v City of New York, 184 AD3d 24, 43 [2d Dept 2020]; Nelson v HSBC Bank USA, 87 AD3d 995, 999 [2d Dept 2011]).

The courts have also noted that the CHRL is not a "general civility code" and that "petty slights and trivial inconveniences" were still nonactionable under the law. (Golston-Green, 184 AD3d at 43; Williams, 61 AD3d at 78-80.) A plaintiff still must "do more than cite to [his] mistreatment" and then ask the court to conclude that the mistreatment must have been related to his protected status. (Sims v Trustees of Columbia Univ. in the City of N.Y., 2017 NY Slip Op 32331[U], *13-14 [Sup Ct, NY County 2017].) Therefore, most courts have{**77 Misc 3d at 1077} granted summary judgment to defendants under the CHRL where a plaintiff's proof of a hostile work environment is limited to sporadic insensitive comments. (See Mihalik, 2011 WL 3586060, *9-10, 2011 US Dist LEXIS 84790, *27-28 [and cases cited therein]; Williams at 80; Nelson, 87 AD3d at 999; Sims v Trustees of Columbia Univ. at *16-18.)

While the court can look at the aforementioned precedent for guidance, that paradigm only goes so far since hostile environment cases presume that discrimination occurred over a prolonged time span which created an untenable working environment, whereas a termination based in part upon discriminatory intent of the employer may be more subtle and not require proof of a pattern of pervasive discriminatory conduct. The courts have recognized that hostile work environment claims are different in kind from discrete acts as "[t]heir very nature involves repeated conduct" (Julius v Department of Human Resource Admin., 2010 WL 1253163, *8, 2010 US Dist LEXIS 33259, *22 [SD NY, Mar. 24, 2010, No. 08 Civ 3091(PKC)], quoting National Railroad Passenger Corporation v Morgan, 536 US 101, 115 [2002]; Sims v Trustees of Columbia Univ. in the City of N.Y., 2017 NY Slip Op 32331[U], *15 [Sup Ct, NY County 2017]). A hostile work environment cannot by definition occur on one [*9]particular day but over a series of days or months or years, and "in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." (Khalil v State of New York, 17 Misc 3d 777, 783 [Sup Ct, NY County 2007], citing to National Railroad Passenger Corporation v Morgan, 536 US 101, 115 [2002].) Therefore, mere utterances which engender offensive feelings in an employee do not sufficiently affect the conditions of employment to create a hostile work environment since such claims must be based on the "cumulative effect of individual acts" (Khalil, 17 Misc 3d at 783, citing to Morgan at 115; see Gorokhovsky v New York City Hous. Auth., 552 Fed Appx 100, 102 [2d Cir 2014]).

Plaintiff alleges that Chaikin's referral to the 9/11"tragedy" and his "strange smile" at Hupart during plaintiff's termination meeting, which coincidentally was held on 9/11, are sufficient to raise an inference that discrimination played a role in his termination. Defendants contend that the statement allegedly made by Chaikin was "neutral on its face" and "merely stated the date" which happens to be an important day for those in NYC who lived through it.{**77 Misc 3d at 1078}

In employment discrimination cases, the term "prima facie case" denotes the establishment by plaintiff of facts sufficient to create "a legally mandatory, rebuttable presumption" rather than the traditional meaning of describing a plaintiff's burden of setting forth sufficient evidence to go before the jury. (Melman v Montefiore Med. Ctr, 98 AD3d at 122; Sogg v American Airlines, 193 AD2d 153, 156 [1st Dept 1993].) In considering whether a defendant has sufficiently established plaintiff's inability to establish all elements of intentional discrimination, the court must consider that plaintiff's prima facie showing is a "low threshold." (Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d 1354, 1356 [3d Dept 2007]; Gonzalez v New York State Off. of Mental Health, 26 Misc 3d 1227[A], 2010 NY Slip Op 50282[U] [Sup Ct, Kings County 2010].)

It is "rare" that a court would grant a motion for summary judgment based upon the absence of a prima facie showing of circumstances giving rise to an inference. (Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 71 [1st Dept 2017], citing to Melman, 98 AD3d at 124-125; Bennett, 92 AD3d at 38; Murphy v Wolford Am., Inc., 2019 NY Slip Op 30267[U], *17-18 [Sup Ct, NY County 2019] [court assumes that circumstances surrounding plaintiff's termination gave rise to inference of discrimination, but defendants met burden of providing legitimate business reason for termination and plaintiff failed to raise inference of pretext].) However, a prima facie showing by a plaintiff only creates a "legally mandatory, rebuttable presumption" rather than the traditional showing that plaintiff has set forth sufficient evidence to go before the jury. (Melman, 98 AD3d at 122, citing to Sogg v American Airlines, 193 AD2d at 156 n 2.)

In fact, the courts often bypass requiring the plaintiff to make a prima facie case and skip directly, on a defendant's motion for summary judgment under the CHRL, to inquiring whether a defendant has shown, based on all the evidence, that "no jury could find defendant liable under any of the evidentiary routes [applicable to discrimination cases]" (Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d at 200). Courts must exercise special caution in granting summary judgment because "discrimination seldom announces itself openly." (Id. at 204.) "Because an employer who discriminates for an unlawful reason rarely announces a discriminatory motive or intent, verbal comments may provide sufficient evidence to support a claim for employment discrimination" (Gonzalez v New York State Off.{**77 Misc 3d at 1079}of Mental Health, 26 [*10]Misc 3d 1227[A], 2010 NY Slip Op 50282[U], *15 [Sup Ct, Kings County 2010]).

In considering whether a comment is probative of discrimination or rather a non-probative "stray remark," a court must consider (1) whether the remark was made by a decisionmaker or supervisor; (2) when the remark was made in relation to the employment decision at issue; (3) the context of the comment (i.e. whether a juror would regard the remark as discriminatory); and (4) the context in which the remark was made—whether it was related to the decision-making process. (Henry v Wyeth Pharms., Inc., 616 F3d 134, 149-150 [2d Cir 2010]; Holleman v Art Crating Inc., 2014 WL 4907732, *27-28, 2014 US Dist LEXIS 139916, *89-90; Tomassi v Insignia Fin. Group, Inc., 478 F3d 111, 115 [2d Cir 2007]; see also Obinabo v Radioshack Corp., 522 Fed Appx 55, 57 [2d Cir 2013] ["When considering 'stray remarks' as evidence of discrimination, courts consider who made the remark, when the remark was made in relation to the employment decision, the remark's content, and the context in which the remark was made"], citing Henry, 616 F3d at 149.) A remark will be "more probative" of discriminatory intent where it evinces a discriminatory state of mind and is in close relation to the allegedly discriminatory behavior. (Tomassi v Insignia Fin. Group, Inc., 478 F3d 111, 115 [2d Cir 2007] [citation omitted]; Sethi, 12 F Supp 3d at 535-536.) Even stray remarks in the workplace made by individuals who are not involved in the pertinent decision-making process may suffice to make a prima facie case if the remarks evidence "invidious discrimination." (Chiara, 126 AD3d at 124; see Belgrave v City of New York, 1999 WL 692034, *29, 1999 US Dist LEXIS 13622, *89-90 [ED NY 1999], affd 216 F3d 1071 [2d Cir 2000].)

In Cadet-Legros, the Court assumed that a supervisor's comment that "a leopard does not change its spots" was sufficient for plaintiff to make a prima facie case but ultimately found that said comment was not discriminatory as it was no longer "imbued with racial meaning" and granted summary judgment to the defendant. (Cadet-Legros, 135 AD3d at 205; see Vega v Hempstead Union Free Sch. Dist., 801 F3d 72, 86 [2d Cir 2015]; Lloyd v Holder, 2013 WL 6667531, *7, 2013 US Dist LEXIS 178456, *19 [SD NY, Dec. 17, 2013, No. 11 Civ 3154(AT)].) The Court recognized that a plaintiff alleging discrimination must be allowed to "present a wide range of indirect evidence of discrimination, including the fact that a defendant (or its agent{**77 Misc 3d at 1080} or employee) used coded language, that is probative of discriminatory intent," and that it must examine the language and its historical usage, in addition to the context in which it was used. (Cadet-Legros, 135 AD3d at 204-205.)

A plaintiff's subjective interpretation of critical but facially nondiscriminatory terms does not "itself" reveal discriminatory animus. (Thelwell v City of New York, 2015 WL 4545881, *11, 2015 US Dist LEXIS 98406, *27 [SD NY, July 28, 2015, No. 13 Cv 1260(JGK)] [defendants' purported use of the words "angry" and "abrasive" did not rise to the level of racial code words such as "boy" or "thug"]; see also Cook v Emblemhealth Servs. Co., LLC, 59 Misc 3d 1209[A], 2018 NY Slip Op 50451[U], *4 [Sup Ct, NY County 2018] [supervisor's use of the facially nondiscriminatory terms "very authoritarian," "critical," and "aggressive" did not constitute racial coding or evidence of discrimination where the supervisor was describing the plaintiff's leadership skills].)

In Lloyd v Holder (2013 WL 6667531, *9, 2013 US Dist LEXIS 178456, *27 [SD NY, Dec. 17, 2013, 11 Civ 3154(AT)]), the court found that "[d]rawing the line between facially race-neutral statements and racially charged code words is difficult." The court found that the employer's use of adjectives to describe plaintiff, such as lazy, shiftless, incompetent, entitled, slacking off, and dumb, without any other evidence of discrimination, did not reveal discriminatory animus. However, certain facially [*11]nondiscriminatory terms can invoke racist concepts that are already planted in the public consciousness—words like "welfare queen," "terrorist," "thug," "illegal alien." (See Ash v Tyson Foods, Inc., 546 US 454, 456 [2006] [The use of the word "boy," standing alone, is not always benign]; Smith v Fairview Ridges Hosp., 625 F3d 1076, 1085 [8th Cir 2010] [code words such as "fried chicken" and "ghetto" may provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications]; Abramson v William Paterson Coll. of N.J., 260 F3d 265, 278 [3d Cir 2001] [noting that the use of code words such as "all of you" and "one of them" could be sufficient evidence from which a jury could find an intent to discriminate].)

And yet, even a seemingly banal term such as "selected clientele" may, within a certain context, raise an inference of discrimination. In Camp-of-the-Pines, Inc. v New York Times Co. (184 Misc 389 [Sup Ct, Albany County 1945]), defendant New York Times edited the advertising copy sent by plaintiff{**77 Misc 3d at 1081}—an owner of a vacation club—by striking out the words "selected clientele" and substituting in the words "congenial following" and thereafter published the ad. Plaintiff sued the New York Times for breach of contract, alleging it had not consented to the omission of the words "selected clientele" and the substitution thereof. The court granted the Times' motion to dismiss plaintiff's suit for damages based upon the Times' refusal to publish the advertisement exactly as sent by plaintiff on the grounds that said alleged contract was illegal and void.

The court found that the term was "[n]ot only . . . injurious and offensive to morals," but that it contravened Civil Rights Law § 40. (184 Misc at 399.) The use of the words "selected clientele" to describe members in good standing who would be eligible to use the facilities was a "sham," a "mask and subterfuge" and "merely a cloak and disguise" and an indirect means to hide discrimination. (Id. at 398.) "As a practical matter such words as 'selected clientele' connote in the public mind that colored persons, Jews and others who are not lily-white need not apply to plaintiff for accommodation." (Id.)

Based upon this de minimis standard, this court finds that Chaikin's comment that "Today is 9/11, right?," coupled with his strange smile at Hupart during plaintiff's termination meeting held on 9/11, is more than a generic neutral comment made about the horrific event that occurred on that day. A jury could find that Chaikin's comment and strange smile were directed at Alhaj, who is a Syrian Muslim, and could be deemed to be a code word, i.e. that as a Muslim, Alhaj was associated with the 9/11 catastrophe—a racist concept that is already planted in the public consciousness. Furthermore, Chaikin's comment was made on the day of Alhaj's termination and the facts are not clear as to his supervisory or decision-making role in the cardiology department.

To state the obvious, there has been a marked increase in anti-Islam phobia since 9/11. (See Sulehria v State of New York, 2012 WL 1284380, *1, 2012 US Dist LEXIS 52836, *3 [ND NY, Apr. 16, 2012, No. 1:12-CV-0021(LEK/ATB)] [plaintiff alleges that he has been the victim of racial prejudice, xenophobia, and religious intolerance in the wake of the September 11, 2001. "His account of the climate of discrimination and fear felt by many Muslim Americans and individuals of Middle Eastern descent is unfortunately not a new one"]; see Liz Mineo, Born to take on Islamophobia, The Harvard Gazette, Sept. 9, 2021, available at {**77 Misc 3d at 1082}https://news.harvard.edu/gazette/story/2021/09/muslim-americans-reflect-on-the-impact-of-9-11/ [" 'It has been 20 years since the atrocities of 9/11, yet the wound continues to dig deep,' said Ijaz [*12]in an email. 'It digs into the families that lost loved ones on that ill-fated day. . . . It also digs into the lives of Muslim Americans, marked by the scarlet letters imprinted on them by terrorists with whom they shared nothing in common save for one imperfect classification: Muslim' "].)

Having found previously that Chaikin's comment to Hupart "Today is 9/11, right?" and his immediate "strange smile" to Hupart could be found by a jury to be a code word, the court must now discern whether defendants produced evidence of a legitimate reason for the termination and if so, whether plaintiff can show that the termination was motivated at least in part by discrimination and that there is a nexus between said comment and his termination.

Defendants assert that there are no evidentiary routes by which a jury could find that discrimination played any role in the decision to terminate plaintiff, either under the mixed motive or McDonnell Douglas tests. In their original motion for summary judgment and accompanying brief, defendants state that three doctors (Vardanian, Hupart and Brady) filed a complaint against Alhaj for being insubordinate in refusing to provide coverage for a clinic after having been requested to do so by his supervisors. As set forth previously, by email dated January 16, 2015, Dr. Brady informed Sabina Zak that Alhaj and another doctor refused to provide coverage of the Cardiac Care Unit as per Brady's request, because they were upset about schedules of part-time doctors. Neither had a busy schedule and Alhaj's excuse was that he was in another meeting in the morning and had to cover the clinic in the afternoon. Brady informed Alhaj that had he come to the meeting on time in the morning, he would have had ample time to do his rounds and cover the clinic in the afternoon, and wrote that Alhaj "continued to argue in circles for another half an hour, refusing to leave my office as requested multiple times, wasting precious time from patient care." Brady said that plaintiff's behavior was "completely inappropriate, unprofessional and insubordinate."

Subsequently, on or about August 7, 2015, one Valerie Dener informed Dr. Maese that Alhaj had refused to discuss a case and give patient information concerning a denial claiming that he was too busy and that he was not an attendant. Maese told{**77 Misc 3d at 1083} Dr. Khanna to address this issue as it was the obligation of every attending to participate in the UM process and in denials. Finally, defendants contend that Dr. Khanna's affirmation praising Alhaj and stating that he "never received any complaints about [his] work performance, professionalism [and] his work ethic" is belied by the aforementioned record.

As to Alhaj's unsatisfactory performance on the CHF program, Hupart testified that he had initially instructed Alhaj that he had to use existing resources and could not hire new staff but that he could redeploy existing staff and that he had to produce an outline within two weeks. Hupart stated 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 as his plan called for six to eight new hires and new resources. Chaikin testified that Hupart called Alhaj in for a counseling session about his failure to establish a cardiac program and other deficiencies. Curiously, Hupart did not deem his meetings with Alhaj in late July to be counseling sessions; rather he testified he "followed up" with Alhaj to see if he had problems and to offer his assistance. Defendants never presented a counseling memo about the CHF program.

Based upon the above, this court finds that defendants have produced sufficient evidence that Alhaj behaved in an inappropriate, unprofessional and insubordinate manner which [*13]constitutes a legitimate reason for termination. Furthermore, the Hospital and Hupart were within their right to determine that Alhaj did not perform satisfactorily on the CHF program since Hupart told plaintiff to use only existing resources and not to hire any new staff for the program.

As the court has stated previously, it does not sit "as a super-personnel department that reexamines an entity's business decisions" in an employment discrimination case. (Melman, 98 AD3d at 121; Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 [1st Dept 2009].) "In a discrimination case," the court is "decidedly not interested in the truth of the allegations against [the] plaintiff," but rather in what motivated the employer. (McPherson v New York City Dept. of Educ., 457 F3d 211, 216 [2d Cir 2006], quoting Postal Service Bd. of Governors v Aikens, 460 US 711, 716 [1983].) "The question in any discrimination case is not whether defendant's decision to fire plaintiff was correct but whether it was discriminatory." (DeFina v Meenan Oil Co., Inc., 924 F Supp 2d 423, 435 [ED NY 2013]; see Tuccio v FJC Sec. Servs., Inc., 2014 WL 4438469, 2014 US{**77 Misc 3d at 1084}Dist LEXIS 125090 [ED NY, Sept. 8, 2014, No. 12-CV-5506(JFB)(GRB)] [same]; Rothenberger v New York City Police Dept., 2008 WL 2435563, 2008 US Dist LEXIS 46614 [ED NY, June 16, 2008, No. 06-CV-868 (NGG)(LB)], quoting Thornley v Penton Pub., Inc., 104 F3d 26, 29 [2d Cir 1997].) Courts do not have a " 'roving commission to review business judgments' " (Rosenberg v Chesapeake Pharm. & Health Care Packaging, 888 F Supp 2d 302, 309 [ED NY 2012]) and the only issue before them is whether there is sufficient information by which a jury could find that the employer's decision was discriminatory, not whether it was wise. (Holleman v Art Crating Inc., 2014 WL 4907732, 2014 US Dist LEXIS 139916.)

Thus, a plaintiff's subjective disagreement with the employer's assessment of her performance is not actionable under the discrimination statutes. (See White v Pacifica Found., 973 F Supp 2d 363, 382 [SD NY 2013]; see also Potash v Florida Union Free Sch. Dist., 972 F Supp 2d 557, 592 [SD NY 2013] ["Plaintiff's personal disagreements with (defendants') evaluation of her job performance are insufficient . . . to preclude summary judgment"]; Silva v Peninsula Hotel, 509 F Supp 2d 364, 385 [SD NY 2007] [the employer, not the employee, decides what constitutes satisfactory performance]; cf. McNamee v Starbucks Coffee Co., 914 F Supp 2d 408, 420 [WD NY 2012] ["Plaintiff's subjective belief that she was performing satisfactorily, by itself, is not sufficient to create a triable issue of fact as to pretext"].) 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 nondiscriminatory. (Melman, 98 AD3d at 121, citing to Forrest v Jewish Guild for the Blind, 3 NY3d at 308 n 5.)

This precedent is even stronger when the employer's actions are challenged by a probationary employee who may be discharged for "almost any reason, or for no reason at all" as long as it is not "in bad faith or for an improper or impermissible reason." (Matter of Duncan v Kelly, 9 NY3d 1024, 1025 [2008]; Matter of Hirji v Chase, 151 AD3d 857 [2d Dept 2017]; Matter of Johnson v County of Orange, 138 AD3d 850, 851 [2d Dept 2016]; Matter of Young v City of New York, 68 Misc 3d 514, 517 [Sup Ct, Kings County 2020].) A bad faith determination is one based upon a constitutionally impermissible or illegal purpose, or "in violation of statutory or decisional law." (Matter of Lake v Town of Southold, 189 AD3d 1588, 1591 [2d{**77 Misc 3d at 1085}Dept 2020]; Matter of Lane v City of New York, 92 AD3d 786 [2d Dept 2012]; Matter of Card v Sielaff, 154 Misc 2d 239, 244 [Sup Ct, NY County 1992].) The petitioner has the burden of proving bad faith by producing competent evidence, rather than mere speculation. (Matter of Young at 517; see Matter of Swinton v Safir, 93 NY2d 758, 763 [1999]; Walsh v New York State Thruway Auth., 24 AD3d 755, 757 [2d Dept 2005].)

Given the above, this court will not sit as an arbiter as to whether defendants or Alhaj more accurately describe what occurred in the CHF program. Furthermore, it finds no credence to Alhaj's claim that by being assigned to create a CHF program he was handed a mission to fail (not substantiated) or that Chaikin and the department adopted many of his recommendations for the program after he was fired.

Since defendants have produced evidence of legitimate, nondiscriminatory reasons for terminating Alhaj from his probationary position, the burden shifts back to plaintiff to produce evidence that the action was "motivated at least in part by . . . discrimination." (Melman, 98 AD3d at 127; see Cadet-Legros, 135 AD3d at 200 n 1; Coronado v Weill Cornell Med. Coll., 66 Misc 3d 404, 407 [Sup Ct, NY County 2019]; Ortiz v Gazes, LLC, 2017 NY Slip Op 32339[U] [Sup Ct, NY County 2017].) Under the mixed motive theory recognized by the CHRL the plaintiff must produce evidence that the unlawful discrimination was one of, even if not the sole motivating factors for the employment decision. (Hamburg, 155 AD3d at 73, citing to Melman, 98 AD3d at 127; see Aulicino v New York City Dept. of Homeless Servs., 580 F3d 73, 80 [2d Cir 2009]; Weiss v JPMorgan Chase & Co., 2010 WL 114248, 2010 US Dist LEXIS 2505; Crookendale v New York City Health & Hosps. Corp., 2018 NY Slip Op 31309[U] [Sup Ct, NY County 2018].) Plaintiff need only respond with "some evidence" that at least one of the reasons proffered by the defendant is false and the court should deny the motion for summary judgment. (Melman, 98 AD3d at 127; Dozier, 2018 NY Slip Op 31638[U], *13.) Summary judgment should not be granted under the City HRL unless the record establishes as a matter of law that "discrimination . . . play[ed] no role in [the defendant's] employment decision." (Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 711-712 [2d Dept 2022]; Singh v Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161 [2d Dept 2015]; Bennett v Health Mgt. Sys., Inc., 92 AD3d at 40; see Ellison v Chartis Claims, Inc., 178 AD3d 665, 668 [2d Dept 2019].){**77 Misc 3d at 1086}

Defendants argue that there is absolutely no evidence that either the Hospital or Chaikin acted in a discriminatory manner in terminating Alhaj, which was due to his various infractions throughout the year and his nonperformance in working on the CHF program. They first reiterate that Chaikin's comment was neutral on its face, as he was just commenting that the weather on that day was the same as it was on 9/11 when the attacks took place, 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 cite to precedent that stray remarks made by non-decisionmakers or decisionmakers without more cannot prove a claim of employment discrimination. (Godbolt v Verizon N.Y. Inc., 115 AD3d 493, 494 [1st Dept 2014]; Gonzalez v New York State Off. of Mental Health, 26 Misc 3d 1227[A], 2010 NY Slip Op 50282[U] [Sup Ct, Kings County 2010].) Defendants claim there is no "more" insofar as Chaikin was not involved in the decision to terminate Alhaj's employment.

This court has already ruled that Chaikin's comment and strange smile to Hupart could be viewed, by a reasonable jury, as a code word as opposed to a banal innocent comment about the day of 9/11. However, verbal stray comments can raise an inference of discrimination only where there is a "demonstrated nexus" between the remarks and the negative employment action. (Dawson v City of New York, 2013 WL 4504620, *10, 2013 US Dist LEXIS 117744, *29; Cherry v New York City Hous. Auth., 2017 WL 4357344, 2017 US Dist LEXIS 161830 [ED NY, Sept. 29, 2017, 15-CV-6949 (MKB)]; Sandiford v City of N.Y. Dept. of Educ., 22 NY3d 914, 916 [2013]; Chiara, 126 AD3d at 124; see Sandiford v City of New York Dept. of Educ., 94 AD3d 593, 604 [1st Dept 2012]; Tomassi v Insignia Fin. Group, Inc., 478 F3d 111, 115 [2d Cir 2007] ["(T)he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination"]; Holleman, 2014 WL 4907732, *27-28, 2014 US Dist LEXIS 139916, *88-89.)

In determining whether a comment is probative of an intent to discriminate or is merely a non-probative stray remark a court must consider the following factors: (1) whether the comment was made by a decisionmaker, a supervisor, or a low-level coworker, (2) was the remark made close in time to the adverse employment decision at issue, (3) given the context of the remark, whether a reasonable juror could view the remark{**77 Misc 3d at 1087} as discriminatory, and (4) the context in which the remark was made—was it related to the decision-making process. (Chiara, 126 AD3d at 124; Wiggins v Mount Sinai Hosps. Group, Inc., 2020 NY Slip Op 34254[U], *25 [Sup Ct, NY County 2020]; Gomez v Cablevision Sys. New York City Corp., 2016 NY Slip Op 31177[U], *13 [Sup Ct, NY County 2016]; Breitsein v Michael C. Fina Co., 2016 NY Slip Op 31858[U], *26 [Sup Ct, NY County 2016]; Gonzalez, 26 Misc 3d 1227[A], 2010 NY Slip Op 50282[U].) Even stray remarks by persons who are not supervisors or involved in the pertinent decision-making process may suffice to present a prima facie case of discrimination. (Chiara, 126 AD3d at 124; see Belgrave v City of New York, 1999 WL 692034, *29, 1999 US Dist LEXIS 13622, *89-90 [ED NY, Aug. 31, 1999, No. 95-CV-1507 (JG)], affd 216 F3d 1071 [2d Cir 2000].)

Defendants claim that Chaikin did not play a supervisory role in the CHF program and that there is simply "no evidence linking Mr. Chaikin to any input" over Alhaj's job performance in either the CHF program or generally in substantively reviewing plaintiff's progress at work, or in Hupart's decision to fire him. Rather it was Dr. Hupart who assigned plaintiff and then monitored his progress. Specifically Chaikin testified that he first met Alhaj at a meeting in late July or August where Dr. Hupart counseled him on failing to meet his job expectations re the CHF program. Chaikin was only there to serve as a witness. The only other interaction he had with Alhaj was during the 9/11 termination meeting where he served solely as a witness with no input as to the decision-making about Alhaj's continued employment. Chaikin stated he did not know whose decision it was to terminate Alhaj, although Dr. Khanna was his immediate supervisor and Hupart was the chairman of the department. Defendants also point to Alhaj's deposition testimony that he "only saw Chaikin" but never interacted with him.

Defendants then contend that Chaikin's only job responsibilities concerning the CHF program was "a future expectation of an administrative nature" in terms of moving resources around the hospital and working with Hupart to reassign resources, i.e. staff, which "made sense" since he was not a doctor. They quoted this court's observation during a conference that plaintiff needed to do more than say that "Chaikin came in and was an administrator." Plaintiff claims that Chaikin was involved in the decision to terminate him because of his comment{**77 Misc 3d at 1088} about 9/11 during the termination meeting, and his role in administering the cardiology department and the CHF program.

Chaikin's official title was "Associate Executive Director for Medicine." His duties were to plan programs in medicine, implement what the executive director of the hospital thought [*14]needed to be done and "work with the chairman of medicine" to address his day-to-day needs to the operation of the hospital. Hupart testified that because Chaikin was not a doctor, he had an administrative role in all of his assigned projects, including the CHF program, and worked to achieve Hupart's goals for the hospital. Chaikin's main role was to work collaboratively with Hupart to bring people together, get them to agree to and move forward on a plan. Chaikin not only worked on the CHF program, but was involved in all of Hupart's major initiatives to improve the department of medicine. Hupart testified that Chaikin started working on the CHF program about a month prior to Alhaj's termination, and had attended a series of twice weekly one-on-one meetings to discuss various initiatives. Hupart did not expect Chaikin to work with Alhaj to create the program, but rather expected Alhaj to update Chaikin about the resources that he would need to implement the program.

The facts in Lefort v Kingsbrook Jewish Med. Ctr. (203 AD3d 708 [2d Dept 2022]) are quite similar to the facts presented in this case. The Second Department found there were triable issues of fact as to whether a supervisor's remarks concerning the plaintiff's maternity leave were "indicative of a discriminatory motive to terminate" her employment. (Id. at 710.) While the Medical Center argued that the supervisor had no involvement in the decision to terminate, the record contained evidence that the chief operating officer, who made the decision to terminate plaintiff, met with the supervisor to discuss plaintiff's return from maternity leave and that the supervisor was present at the termination meeting. Where there are factual issues concerning the supervisor's involvement and whether an inference of discriminatory motive can be drawn from this evidence, the court must follow the precept that "all of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party's favor." (Rollins v Fencers Club, Inc., 128 AD3d 401, 402 [1st Dept 2015]; Udoh v Inwood Gardens, Inc., 70 AD3d 563, 565 [1st Dept 2010].) See also Abdelal v Kelly (857 Fed Appx 30) where the Second Circuit{**77 Misc 3d at 1089} denied summary judgment to the City defendants despite their proffering legitimate, nondiscriminatory reasons for plaintiff's discharge—namely, his guilty plea to and conviction of numerous instances of misconduct. The Second Circuit found that plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred in circumstances giving rise to an inference of discrimination, such as two statements defendants made where they noted his national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct.

This admittedly is a very difficult case which presents a very close question of law, given that Chaikin only made one comment and one strange smile (assuming plaintiff's version of the event which the court must do on a motion for summary judgment) and given that plaintiff's past history of work at the hospital could warrant termination since he was a probationary employee. However, plaintiff has raised triable issues of fact as to Chaikin's supervisory position in the cardiology department and whether Chaikin played a role in Alhaj's termination. Implicit in Hupart's testimony is an admission that he relied upon Chaikin to be the eyes and ears of the CHF program and cardiology 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 July 28, 2015, Hupart informed Khanna and Alhaj that he wanted to [*15]meet with them about the proposal they were developing for the new CHF program designed to improve quality of care and a decreased need for hospitalization and rehospitalization after discharge; Chaikin was cc'd on this and another similar email dated June 29, 2015. By email dated August 3, 2015, to his supervisor John Maese, Hupart memorialized his meeting with Alhaj, Khanna and Chaikin the week before wherein "[t]hey presented [meaning Khanna and Alhaj] a program that was too large in scope but [that they] will work with me [Hupart] and Eric [Chaikin] to right size and improve on our 30d re admit rate." Contrary to Hupart's testimony, there is no evidence that an actual "counseling session" on the CHF program was ever held or that Hupart wrote Alhaj up on his deficiencies.

Alhaj's direct supervisor is Dr. Ashok Khanna, who is the chief of cardiology. She stated in an affidavit that Alhaj's work{**77 Misc 3d at 1090} performance while he was employed at Coney Island Hospital was of the "highest quality" and that she never received any complaints about his work performance, professionalism or work ethic. No one in the hospital informed her that Alhaj was to be terminated and she was never asked about his job performance by the individual defendants.^[FN6] She could think of no reason for his termination.

All of these factors, coupled with Chaikin's incendiary comment, which could be viewed as a code word, made on the very day of Alhaj's termination which, perhaps coincidentally, occurred on 9/11, inures against this court awarding summary judgment to defendants. As such, this case shall proceed to trial on the narrow issue of whether Alhaj's termination was based upon discriminatory motives.