Doctor’s Sex Discrimination Claims Survive Summary Judgment Against NYU

In Carmody v. New York University, et al, 21 Civ. 8186 (LGS), 2023 WL 5803432 (S.D.N.Y. Sept. 7, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sex-based discrimination claims.

After determining that plaintiff presented a prima facie case of discrimination and that defendants articulated a legitimate reason for plaintiff’s termination (falsification of a patient record), the court turned to the final part of the analysis – namely, whether this proffered explanation was a pretext for discrimination.

As to that point, it explained:

Plaintiff offers sufficient evidence for a reasonable jury to conclude that prohibited discrimination was at least one of the motivating factors in her termination. As discussed, she offers evidence that attending physicians were required to attest that they performed a physical examination of patients and did not always reexamine patients after a resident did so, and that a male doctor was treated much more leniently when entering information on the chart of a patient whom he did not treat. She also offers evidence, contrary to Defendants’ arguments, that she did not admit to Femia that she documented a physical exam that she did not do; and that writing notes in the attestation about the care and treatment of a patient was her practice for all patient cases, as it was for other attending physicians in the Emergency Department.

Defendants cite the lack of discriminatory comments from the Individual Defendants to Plaintiff about her gender; however, “[d]irect evidence of discrimination, a smoking gun, is typically unavailable.” Holcomb, 521 F.3d at 141. Defendants note that Plaintiff was replaced with another woman, Sagalowsky. However, whether Plaintiff was replaced by Caspers (male) or Sagalowsky (female) is a disputed fact for which both sides proffer evidence. For summary judgment, Plaintiff’s version of events is assumed to be true. See Davis-Garett, 921 F.3d at 45-48. Defendants detail Femia’s history of professionally supporting women, including Plaintiff. Although his hiring and support of Plaintiff may “strongly suggest that invidious discrimination was unlikely,” Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997), weighing the totality of evidence is a quintessential jury function and inappropriate at summary judgment.

The court concluded that if a jury were to credit plaintiff’s evidence, “it could reasonably conclude that gender-based discrimination was ‘at least one of the motivating factors’ explaining the differential treatment Plaintiff experienced” which “is sufficient to preclude summary judgment on the Title VII claim.”

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