Motors Liquidation Company

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
_________________________________________
)
In re: 	)
) 	Chapter 11
MOTORS LIQUIDATION COMPANY 	)
f/k/a General Motors Corp., et. al, 	) 	Case No. 09-50026
)
Debtors. 	) 	Jointly Administered
_________________________________________ )
DECISION ON OBJECTION TO CLAIM OF DR.
ATUL C. SHAH1
APPEARANCES:
Atul C. Shah, MD
Pro se Plaintiff
2884 Manorwood Drive
Troy, Michigan 48085
By: Atul C. Shah (argued)
DICKSTEIN SHAPIRO LLP
Counsel for Motors Liquidation Company GUC Trust
1633 Broadway
New York, New York 10019
By: Stefanie Birbrower Greer (argued)
Barry N. Seidel
1 	This written decision memorializes and amplifies the decision that was delivered orally, in summary
form, in open court. Because it builds upon the decision as then dictated, it has a more
conversational tone.
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ROBERT E. GERBER
UNITED STATES BANKRUPTCY JUDGE:
In this contested matter in the chapter 11 case of reorganized debtor Motors
Liquidation Company, formerly known as General Motors Corporation (“Old GM”), pro
se claimant Dr. Atul Shah (“Dr. Shah”), a contract physician formerly under contract
with old GM, seeks allowance of a claim2 for $10 million. He seeks compensatory and
punitive damages for alleged employment discrimination, asserting that he was
unlawfully terminated “because of religion, race, etc.”3 His claim has been objected to
by the Motors Liquidation Company GUC Trust (the “GUC Trust”), the trust formed
under Old GM’s reorganization plan for the benefit of Old GM’s creditors.
Dr. Shah bases his claim on alleged:
(1) Denial of First Amendment rights under the constitutions of the
United States and Michigan;
(2) Discrimination on the basis of color, national origin, religion,
race and/or age, under Title VII of the Civil Rights Act of 1964 (“Title
VII”), the Michigan Elliot Larson Civil Rights Act (the “Michigan Civil
Rights Law”), and the Age Discrimination in Employment Act of 1967
(the “ADEA”); and
(3) Retaliation for engaging in activity protected by Title VII.
2 	Dr. Shah’s proof of claim is related to the same events that gave rise to the Equal Employment
Opportunity Commission Charge Dr. Shah filed in 2008 and a Complaint he filed in 2009, in the
Eastern District of Michigan, and appears to incorporate the Charge and the Complaint by reference
(collectively, the “Claim”).
3 	See Exh. H of the GUC Trust’s Objection (“Objection”) (ECF #11590), Dr. Shah’s Proof of Claim.
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Most of Dr. Shah’s claims must be dismissed as a matter of law. The First
Amendment Claim must be dismissed because there is no individual right of action
against a private entity (here Old GM) for the violation of an individual’s First
Amendment rights. The race discrimination and retaliation claims are barred as a matter
of law because they were not included in Dr. Shah’s EEOC charge. The punitive damage
claims must be dismissed because they are not recoverable under Title VII, the Michigan
Civil Rights Law, or the ADEA, and for the additional reason that they cannot be
recovered against an estate, like this one, in liquidation.4
The remaining claims must be dismissed on undisputed facts.
Dr. Shah’s discrimination claims based on religion are lacking in merit.
Undisputed facts establish a difference in views as to medical philosophy, with other
doctors disagreeing with Dr. Shah’s view. Dr. Shah voiced his belief that Eastern
Philosophy had “superior concepts” over current modern science, including bio-medical
science. But this was a view as to medical practice, not religion, or at least became a
view as to medical practice when doctors at GM were determining how their workers
were to be treated. Those facts, without more, do not make out a discrimination case, and
here there is no more.
The only close issue is whether I should continue the small portion of his claims
that remain—those for discrimination based on national origin and, perhaps, age—for an
evidentiary hearing, or whether they should be dismissed now. Reading the entirety of
Dr. Shah’s submission, and taking his allegations as true, there are no facts—as
contrasted to conclusions and statements of his own perceptions—from which I could
4 	Additionally, the claims, even if otherwise allowable, would be capped at $500,000, the amount Dr.
Shah seeks in compensatory damages (Objection, Exh. A), or $300,000, which is the damages cap
that Title VII imposes for companies of Old GM’s size. See 42 U.S.C.A. § 1981a(b)(3)(D).
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find any discrimination. Based on the facts as alleged, I can’t even find the claims to be
plausible.
Here there are no facts alleged other than those that Dr. Shah is a naturalized U.S.
citizen of Indian ancestry, Hindu, and was 59 years old when his contract was terminated
by Old GM. As discussed below, where I flesh out the relevant law, such facts are not
sufficient to make the inference that Old GM terminated Dr. Shah’s employment contract
because he was a member of a “protected category.”
I considered each of the statements in Dr. Shah’s response to ascertain whether, if
proven, they would give me a basis for concluding that he had been discriminated
against. I could find none. That’s not enough to make out a claim for $500,000, or
$300,000, which is the maximum permissible under the Title VII cap, much less the $10
million that Dr. Shah seeks. Because Dr. Shah has failed to set forth a valid legal basis
for recovery against the Debtors, and for the additional reasons set forth below, Dr.
Shah’s claims are disallowed.
Facts
For the purpose of this analysis, I take Dr. Shah’s factual allegations (but not his
conclusions or perceptions) as true.
Dr. Shah is a naturalized American citizen of Indian descent, and, at the time he
filed his initial discrimination complaint, openly practiced the Hindu religion and was
59 years old.5 He has practiced medicine for approximately 30 years as a general
practitioner. He states that he has treated “more than one hundred twenty thousand
5 	See Objection, Exh. A at ¶ 6.
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(120,000) medical patients including twelve thousand (12,000) psychiatric patients in the
United States.”6
Dr. Shah first began working with Old GM in 1997.7 During the relevant period,
his services were governed by a contract dated November 4, 2004 (the “Contract”).8
The Contract did not include any assurances or guarantees that GM would retain his
services for a specified period, nor did it include any obligation by either of the parties to
renew the agreement.9 In other words, the Contract was an “at-will” contract that either
party could terminate at any time.
Dr. Shah remained a contract physician for Old GM until his contract was
terminated in June 2008.10 Dr. Shah alleges that he was one of four contract physicians
during his tenure with the Debtors, including: (i) “Dr. Hasan Rehman, MD a Muslim
Physician from India”; (ii) “Dr. Orr, MD, a Black Christian Physician from U.S.A.”; and
(iii) “Dr. Soboloski, MD a White Physician with Christian background.”11
On June 11, 2008, Dr. Stanley Miller, the Senior Group Medical Director, and Dr.
Anthony Burton, the Medical Director at Old GM’s Ypsilanti, Michigan Willow Run
Plant (and Dr. Shah’s supervisor), informed Dr. Shah that the Contract would be
terminated.12 According to Dr. Shah, Dr. Burton informed Dr. Shah that GM’s decision
was based on a “problem with documentation and ‘other reasons.’”13
6 	See id. at ¶ 14.
7 	See id. at ¶ 11.
8 	See Objection, Exh. B, Attachment 1.
9 	Id.
10 	See Objection, Exh. A at ¶ 11; Exh. C, Attachment 1.
11 	See Dr. Shah’s Response (“Response”) (ECF #11696), Exh. B at 6.
12 	See Objection, Exh. A at ¶¶ 21-30.
13 	Id. at ¶ 32.
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Then in July 2008, GM mistakenly sent a notice to Dr. Shah stating that his
Contract had been extended until December 31, 2009.14 Dr. Shah was later informed that
this notice was sent by clerical error.15 Old GM did not intend to (and did not) renew the
contract.
On December 4, 2008, about six months later, Dr. Shah filed a charge (the
“Charge”) with the EEOC alleging that he was terminated by GM as a result of
discrimination on the basis of color, religion, national origin and age.16 In his Charge,
Dr. Shah stated:
On June 11, 2008, I was removed from my position
as Contract Physician. No explanation was given to
me with regards to my removal. I had not had any
prior disciplinary action filed against me and I was
the only one removed at this time. In July 2008, I
received documentation that my contract had been
extended until December 31, 2009. When I called
with regards to this document, I was told it was a
clerical error.
I can only conclude that I have been discriminated
against by being removed from my position due to
my color, age, religion and national origin in
violation of Title VII of the Civil Rights Act of
1964, as amended, and the Age Discrimination in
Employment Act of 1967, as amended.17
On July 7, 2009, the EEOC dismissed the Charge.18 On September 16, 2009,
about two months later, the Michigan Civil Rights Department accepted the EEOC’s
findings and also dismissed the Charge under the Michigan Civil Rights Law.19
14 	See Objection, Exh. D at 2.
15 	Id.
16 	Id.
17 	Id. (emphasis added).
18 	See Objection, Exh. E (EEOC notice titled “Dismissal and Notice of Rights”).
19 	See Objection, Exh. F.
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Dr. Shah argues that the EEOC did not dismiss his charge, based on language in
the EEOC’s determination.20 But I cannot agree. The language upon which Dr. Shah
relies stated:
The EEOC issues the following determination:
Based upon its investigation, the EEOC is unable to
conclude that the information obtained establishes
violation of the statutes. This does not certify that
the respondent is in compliance with the statutes.
No finding is made as to any other issues that might
be construed as having been raised by this charge. 21
But before reciting the quoted language, the EEOC stated that the EEOC has
closed its “file on this charge for the following reason.” 22
While failing to make a finding of a violation of law, the EEOC made clear that
Dr. Shah had the right to sue in state or federal court based on the claims alleged in the
Charge.23 In other words, the EEOC did not find a violation, and thus dismissed his
complaint there, but without prejudice to his right to assert his claims in a court.
On October 13, 2009, after the Debtors’ chapter 11 case was commenced, Dr.
Shah filed a plenary lawsuit against Old GM and Bashen Corporation, an affiliate of Old
GM, in the United States District Court for the Eastern District of Michigan, asserting the
claims contained in the Charge, as well as several additional claims.24 In August 2010,
the Michigan District Court granted Bashen Corporation’s motion to dismiss and/or for
summary judgment. Presumably by reason of the automatic stay, Dr. Shah agreed to
20 	Response at ¶ 8.
21 	See Objection, Exh. E (EEOC notice titled “Dismissal and Notice of Rights”).
22 	Id.
23 	Id.
24 	See Objection, Exh. A.
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voluntarily dismiss the Michigan action against Old GM. The Michigan District Court
dismissed Dr. Shah’s entire action.25
On November 17, 2009, Dr. Shah filed a timely proof of claim against the
Debtors in Old GM’s bankruptcy case.26 The proof of claim is related to the same events
that gave rise to the EEOC Charge and the complaint filed in the Eastern District of
Michigan, and incorporates the charge and the complaint by reference.
Though Dr. Shah did not address it in his submissions, the GUC Trust has
introduced uncontradicted evidence of Old GM’s dissatisfaction with Dr. Shah’s
performance as a physician, including evidence of failures to correctly diagnose and treat
work-related injuries, poor documentation, and lack of thoroughness. More specifically,
in approximately March 2008, Dr. Shah failed to recognize an employee’s non-displaced
distal radius fracture, for which Dr. Shah did not provide a splint.27 That same month,
Dr. Shah wrote restrictions for an employee without evaluating the employee’s job to
determine if the restrictions were necessary.28 Then, on at least two occasions during
April 2008, Dr. Shah failed to accurately document parties’ medical histories.29 Dr. Shah
also misdiagnosed an employee’s knee pain as arthritis, which was subsequently
determined to be a meniscus tear that required surgery.30
More important is what Dr. Shah does not allege. I don’t doubt that he feels
discriminated against by reason of his national origin, or perhaps his religion or age, but I
25 	See Objection, Exh. G.
26 	Id.
27 	See Objection, Exh. C & Attachment 1.
28 	Id.
29 	Id.
30 	Id.
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see no actual facts, as contrasted to conclusions, evidencing such discrimination. He
asserts that complaints about his patient care, and other dissatisfaction with his work,
were pretextual (i.e., purported reasons given to conceal discriminatory intentions behind
an adverse employment action), but no facts have been alleged that support such an
inference.
Discussion
While I have little doubt that Dr. Shah sincerely feels that he has been victimized,
I must conclude that his claims lack factual basis and are ungrounded in the law. Dr.
Shah asserted in his EEOC Charge that “I can only conclude that I have been
discriminated against by being removed from my position due to my color, age, religion
and national origin . . . .”31 But even on the most favorable reading of the facts alleged, I
cannot draw a like conclusion, nor can I find that if facts of the type he articulated were
fleshed out further, any of those facts would support a claim of discrimination.
For a prepetition claim to be valid, the claimant must demonstrate that he
possesses a right to payment and that the right arose prior to the filing of the bankruptcy
petition.32 Fed.R.Bankr.P. 3001(f) further provides that a proof of claim is prima facie
evidence of the validity and amount of such claim. However, if the claimant does not
allege a sufficient legal basis for the claim, the claim is not considered prima facie valid,
and the burden remains with the claimant to establish its validity.33 As shown below, Dr.
31 	See Objection, Exh. D at 2.
32 	See Olin Corp. v. Riverwood Int’l Corp. (In re Manville Forest Prods. Corp.), 209 F.3d 125, 128 (2d
Cir. 2000) (citing LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 497 (2d Cir.
1995)).
33 	In re Chain, 255 B.R. 278, 280-81 (Bankr. D. Conn. 2000); In re Marino, 90 B.R. 25, 28 (Bankr. D.
Conn. 1988).
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Shah fails to establish the validity of any of his claims and, therefore, that he has any
valid legal right against the Debtors giving rise to an enforceable obligation.
1. 	First Amendment Claims
The Claim includes an allegation that Old GM violated Dr. Shah’s “First
Amendment Rights of Freedom of Speech and Freedom or Religion under the United
States and State of Michigan Constitutions.”34 But a private entity cannot violate an
individual’s rights under the constitutions of the United States or Michigan.35 Therefore,
even if I were to otherwise find facts that might give rise to an inference of a denial of
rights of free speech or religion, they would not give rise to relief under the First
Amendment.
2. 	Race Discrimination and Retaliation
Dr. Shah’s race discrimination and retaliation claims also fail as a matter of law,
because Dr. Shah did not raise them in the EEOC Charge filed on December 4, 2008. A
discrimination complaint is generally “limited to the scope of the EEOC investigation
reasonably expected to grow out of the charge of discrimination.”36 A claim filed in
court that is “based on a wholly different type of discrimination than that asserted” in the
34 	Objection, Exh. A at ¶ 26.
35 	See Manson v. Little Rock Newspapers, Inc., 200 F.3d 1172, 1173 (8th Cir. 2000) (private entity was
legally incapable of violating employee’s First Amendment rights to free speech and association);
Prysak v. R.L. Polk Co., 483 N.W.2d 629, 634 (Mich. Ct. App. 1992) (private employer was not
bound by constitutional provisions guaranteeing freedom of speech under Michigan Constitution)
(citing Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 212, 378 N.W.2d 337, 348 (Mich.
1985) (Michigan Constitutional protection of free speech is “limited to protection against state
action”)).
36 	Hall v. State Farms Ins. Co., 18 F. Supp. 2d 751, 764-765 (E.D. Mich. 1998), aff’d, 1 F. App’x 438
(6th Cir. 2001) (dismissing plaintiff’s sex discrimination claims under Title VII and the Michigan
Civil Rights Law where she failed to include them in her EEOC charge); see also Senno v. Elmsford
Union Free Sch. Dist., 812 F. Supp. 2d 454, 469 (S.D.N.Y. 2011) (claim based on national origin
discrimination barred where charge alleged only racial discrimination).
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EEOC charge is barred as a matter of law.37 Here, Dr. Shah asserted a discrimination
claim based on national origin in the Charge, but failed to include a racial discrimination
or a retaliation claim.38 Discrimination claims based on national origin are not the same
as race discrimination claims.39 Thus, Dr. Shah’s race discrimination and retaliation
claims cannot be asserted here.
3. 	Violations of Title VII, the ADEA, or the Michigan Civil Rights Law40
The remaining causes of action asserted by Dr. Shah seek recovery under Title
VII, the Michigan Civil Rights Law, and the ADEA based on allegations that the Debtors
terminated Dr. Shah because of his national origin, color, religion, and/or age.41 But Dr.
Shah has not sufficiently alleged facts establishing a valid claim, under any of these
statutes, against the Debtors.42
37 	Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d at 469 (internal quotations omitted).
38 	See Costello v. New York State Nurses Ass’n, 783 F. Supp. 2d 656, 677 (S.D.N.Y. 2011) (claim of
pre-EEOC retaliation was barred where plaintiff failed to allege claim in EEOC charge).
39 	Woodcock v. Montefiore Med. Ctr., 48 F. Supp. 2d 231, 234 (E.D.N.Y. 1999) (discrimination based
on national origin is wholly different from a claim of race discrimination).
40 	As a preliminary matter, Debtors note in their objection to Dr. Shah’s proof of claim that Title VII,
the ADEA, and the Michigan Civil Rights Law apply only to employees and do not apply to
independent contractors. See, e.g., Harrington v. Potter, 2011 WL 709829 (N.D.N.Y. Feb. 22, 2011)
(dismissing Title VII action where plaintiff was admittedly an independent contractor); Legeno v.
Douglas Elliman, LLC, 311 F. App’x 403, 404-405 (2d Cir. 2009) (dismissing ADEA claim brought
by plaintiff who applied for independent contractor position, because independent contractors are not
covered by the ADEA); Kamalnath v. Mercy Mem’l Hosp. Corp., 194 Mich. App. 543, 553, 487
N.W.2d 499, 505 (Mich. 1992) (affirming dismissal of a Michigan Civil Rights Law complaint
brought by physician who was an independent contractor).
Dr. Shah does not allege that he was an employee at the time of contract termination and, in fact, he
admits that he was a “contract physician” (Objection, Exh. A ¶¶ 11, 19, 22, 30) who was “affiliated”
with Debtors at the time of his termination (id. ¶ 22). Indeed, the Contract expressly stated that Dr.
Shah would “function as an independent contractor and would not have the status of an employee of
GM.” See Objection, Exh. B, Attachment 1 at page 2. As such, Dr. Shah’s discrimination claims
should be dismissed on this ground alone. However, a full factual determination has not been made
as to whether Dr. Shah was an independent contractor, or an employee. Therefore, for the purposes
of this Opinion only, I will assume Dr. Shah is entitled to the benefits of the statutes cited.
41 	See Objection, Exh. A at ¶¶ 36-37 & Exh. D.
42 	See Raleigh v. Illinois Dept. of Revenue, 530 U.S. 15, 20 (2000) (a claim in bankruptcy is evaluated
based on the underlying substantive law); Dean v. Westchester Cnty. Dist. Attorney’s Office, 119 F.
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Under each of Title VII and the Michigan Civil Rights Law, it is unlawful for an
employer to discharge an employee on the basis of (among other characteristics) the
employee’s race, national origin, color, and/or religion.43 Under the ADEA and the
Michigan Civil Rights Law, it is unlawful for an employer to discharge an employee
because of his age.44 Claims under Title VII, the Michigan Civil Rights Law, and the
ADEA are evaluated under the same standard.45 To state a viable cause of action under
Title VII, the Michigan Civil Rights Law, and/or the ADEA, a plaintiff must allege that:
(i) he belongs to a protected class; (ii) he suffered an adverse employment action; (iii) the
adverse action at issue occurred under circumstances giving rise to an inference of
discriminatory intent.46
In assessing whether this standard is met, conclusory assertions and formulaic
recitations—without factual allegations to support them—are insufficient.47 The sine qua
non of a discriminatory action claim is that the alleged adverse action must have occurred
because the plaintiff was in the protected category.48
Supp. 2d 424, 430 (S.D.N.Y. 2000) (those who seek the protection of Title VII and similar statutes
“must allege and prove their entitlement thereto”).
43 	See 42 U.S.C.A. § 2000e2(a)(1) (Title VII); M ICH. COMP. L AWS ANN. § 37.2202.
44 	See 29 U.S.C.A. § 623 (ADEA); M ICH. COMP. L AWS ANN. § 37.2202.
45 	Marin v. Bloom Roofing Sys., Inc., 795 F. Supp. 2d 634, 639 (E.D. Mich. 2011) (citing Sutherland v.
Mich. Dep’t of Treasury, 344 F.3d 603, 614 n.4 (6th Cir. 2003) (Michigan Elliot Larson Civil Rights
Act claims are evaluated under the same standard as Title VII)); see Glenwright v. Xerox Corp., 832
F. Supp. 2d 268, 273 (W.D.N.Y. 2011) (ADEA disparate treatment claims and Title VII
discrimination claims addressed together).
46 	Shamilov v. Human Res. Admin., 2011 WL 6085550, at *5 (S.D.N.Y. Dec. 6, 2011) (“Shamilov”)
(citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) and Sanders v. Human Res. Admin., 361
F.3d 749, 755 (2d Cir. 2004)).
47 	While courts review pro se complainants’ pleadings under a more lenient standard than that applied
to formal pleadings drafted by lawyers, courts need not accept as true plaintiff’s “conclusions of law
or unwarranted deductions of fact.” Shamilov, 2011 WL 6209180, at *4 (internal citations omitted).
48 	Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (affirming dismissal of Title VII claim where
plaintiff failed “to plead any facts that would create an inference that any adverse action taken by
defendant was based upon her gender”) (internal quotation marks omitted); see also Petway v. New
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Here, the Complaint fails to satisfy the required elements to establish a claim
under Title VII, the EEOC and/or the ADEA, even when the Court employs a more
lenient standard of review after taking into account that Dr. Shah has represented himself
pro se. Instead, Dr. Shah’s submissions are replete with legal conclusions, perceptions,
and/or unwarranted deductions of fact. More specifically:
1. 	The conclusion that Dr. Shah’s contract was terminated because of religion.
Dr. Shah asserts that his contract was terminated “because of his religion and
the appropriate practice of that religion in the workplace.”49 However, the
GUC Trust points out that Dr. Shah’s Complaint does not indicate that Dr.
Shah practiced his religion in the workplace; that the Debtors knew of any
such practice; or that any specific actions were taken by the Debtors in
response to his religion or his practice of it.
2. 	The conclusion that the articulated reasons for Dr. Shah’s termination were
just pretext for discrimination. Dr. Shah further asserts that “Dr. Burton did
not mention and concealed the purpose of the [June 11] meeting . . . which
was to discriminate and retaliate against him.”50 He further states that the
“articulated reasons for [his] termination was just a pretext for discrimination
based upon [his] race (Asian), nationality (Indian), religion (Hinduism), age
(59) and reprisal.”51 But again he pleads only conclusions, without any facts
to support such a finding.
3. 	The conclusion that the alleged discrimination was intentional and willful.
Dr. Shah recites the elements of an intentional discrimination claim, supported
not by facts but only by the circular conclusion that the alleged discrimination
was “intentional and willful.”52 Merely pleading the conclusion, without facts
to support it, is insufficient.
4. 	The conclusion that Dr. Shah received disparate treatment. The Complaint
also lists the elements of a disparate treatment claim.53 But nowhere does it
include facts that would support a conclusion that such elements can be
York City Transit Auth., 450 F. App’x 66, 67 (2d Cir. 2011) (affirming dismissal of Americans With
Disabilities Act claims by pro se plaintiff where he failed to support the contention that the alleged
conduct occurred because of his disability).
49 	See Objection, Exh. A.
50 	Id. at ¶ 24.
51 	Id. at ¶ 35.
52 	Id. at ¶ 36.
53 	Id. at ¶ 37.
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satisfied. Instead, Dr. Shah supports his disparate treatment claim by stating
that he was “treated differently than similarly situated white, American,
Christian or Muslim Contract Physicians.”54 Although an inference of
discrimination may arise if plaintiff alleges that similarly situated employees
outside plaintiff’s protected class were treated preferentially, conclusory
allegations of the type proffered by Dr. Shah are insufficient to raise an
inference of discrimination.55 Here there are no facts alleged beyond the
conclusions.
5. 	The conclusion that the erroneous contract renewal meant Dr. Shah’s
employment with Old GM was not supposed to be terminated. Dr. Shah
contends that the erroneous renewal of his employment contract “shows that I
was not someone who was on any type of termination list or poor performance
list.”56 This conclusory statement is not based on any facts.
6. 	The conclusion that Dr. Shah’s perception of discrimination is evidence of
discrimination. Dr. Shah appears to argue that because he is an “expert in
understanding and revealing ‘Expressed Intentions and Concealed Intentions’
of people” he can conclude that he was discriminated against.57 Indeed, Dr.
Shah appears to acknowledge that his conclusions are based on “Passive
Inaction manifesting as Silent and Concealed Discrimination.”58 Dr. Shah’s
impressions of the “concealed intentions” of the Debtors or their agents are
once again insufficient to establish a discrimination claim.59
7. 	Additional unsupported conclusions. Throughout his pleadings, Dr. Shah
relies, without additional support, on his belief that he was discriminated
against.60 Again, Dr. Shah’s beliefs are not proof of a discrimination claim,
and without more cannot support one. For example, Dr. Shah claims that
“[o]n June 11, 2008, [he] was unfairly discriminated against . . .”61 and that
his “removal from the GM Plant as Contract Physician was based upon [his]
religion, nationality, color, race and age.”62 He does not provide any facts
that support such conclusions.
54 	Id.
55 	See Rose v. Goldman, Sachs & Co., Inc., 163 F. Supp. 2d 238, 242 (S.D.N.Y. 2001) (dismissing
Title VII case where plaintiff failed to provide any specific factual allegations to enable the court to
evaluate her asserted belief that similarly situated male employees were treated preferentially).
56 	Response at ¶ 6(g).
57 	Response at ¶¶ 13-17.
58 	Id. at ¶¶ 18-20 and 24.
59 	Id.
60 	See, e.g., Response at ¶ 25 & Exh. B at 5.
61 	See Objection, Exh. A at ¶ 17.
62 	Id. at ¶ 19.
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Similarly, the few arguably factual allegations in Dr. Shah’s Claim (if accepted as
true and interpreted in the light most favorable to the claimant) are insufficient to show,
as a matter of law, that Dr. Shah has a facially valid legal claim against the Debtors.
More specifically:
1. 	No previous disciplinary record. For purposes of this motion, I accept as true
that at the time of his termination, Dr. Shah did not have any disciplinary
record;63 that Dr. Shah practiced medicine for thirty years and “has excellent and
versatile experiences and medical knowledge in his career as a practicing
physician;”64 and that “[m]ost of [Dr. Shah’s] patients, medical staffs and co-
workers were happy with his professional knowledge and attitudes.”65
But prior positive performance is insufficient, without more, to create an
inference that subsequent discipline is based on pretext.66 Thus, even if Dr. Shah
had a perfect performance record prior to the events leading up to the June 2008
termination of his contract, this would not create an inference of discrimination.
2. 	Disagreement with supervisor’s assessment of performance. Once again I
accept as true Dr. Shah’s allegations that Dr. Miller told Dr. Shah that his contract
was being terminated after it “was alleged that there was a problem with
documentation and ‘other reasons’”;67 that Dr. Miller did not provide Dr. Shah
with details or provide documentation supporting the decision to terminate him;
and that Dr. Shah did not believe the statements made about him were accurate.68
But once again, an individual’s disagreement with a supervisor’s assessment of
his performance is insufficient, without more, to create an inference of
discrimination.69 Therefore, the fact that Dr. Shah took issue with his
63 	See Objection, Exh. D; see also Objection, Exh. A at ¶ 11.
64 	Objection, Exh. A at ¶¶ 12-15.
65 	Id. at ¶ 12.
66 	See Mattera v. JP Morgan Chase Corp., 740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010) (“[P]laintiff’s
claim of prior favorable performance does not, without more, prove his subsequent poor reviews
were unwarranted.”) (citing Iverson v. Verizon Communications, 2009 WL 3334796, at *5 (S.D.N.Y.
Oct. 13, 2009) (“Demonstration of past positive performance is insufficient to raise a genuine issue
of disputed fact with respect to pretext.”) (internal quotation marks omitted)).
67 	Objection, Exh. A at ¶ 32.
68 	Id. at ¶¶ 33, 34.
69 	See Milano v. Astrue, 2008 WL 4410131, at *41 (S.D.N.Y. Sept. 26, 2008), aff’d, 382 F. App’x 4
(2d Cir. 2010) (merely disagreeing with supervisor’s assessment of performance is insufficient to
raise an issue of fact regarding pretext) (citing Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 309
(S.D.N.Y. 2000) (that employee disagrees with employer’s assessment of her performance is
insufficient to show that employer’s proffered reason for an adverse action was pretextual); Ricks v.
Conde Nast Publis., Inc., 92 F. Supp. 2d 338, 347 (S.D.N.Y. 2000) (same)).
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supervisor’s assessment of his performance is not sufficient to show his contract
termination was discriminatory.
3. 	Subjective belief that supervisor did not “like” ideas expressed in Dr. Shah’s
articles. Dr. Shah sent articles he wrote to another doctor at GM which stated,
among other things, that “Vedic Literature in Sanskrit language from India
contains superior knowledge than the conventional modern science including Bio-
medical science.” Dr. Shah then alleges “Dr. Miller, Dr. Burton and other people
from western background did not like this idea and dismissed Dr. Shah.” Dr.
Shah asserts, based on his expertise “in understanding and revealing ‘Expressed
Intentions’ and ‘Concealed Intentions,’” that these articles, together with Debtors’
“concealed and expressed intentions,” caused his termination.70
But here I can take only those allegations that actually are facts as true for
purposes of this motion. Dr. Shah’s conclusions and personal inferences cannot
receive the same deference. An employee’s subjective feelings and perceptions of
being discriminated against simply are not evidence of discrimination.71
Therefore, Dr. Shah’s apparent perception that Drs. Miller and Burton “did not
like” the ideas expressed in his articles does not create an inference of
discrimination sufficient to support a claim, nor does Dr. Shah’s apparent
perception regarding the “concealed and expressed” intentions of Drs. Miller and
Burton when they informed him of his termination.
4. 	Only individual removed during period of termination. The Debtors’
submissions indicate that Dr. Shah was the only contract physician removed at
that time (June 2008).72 But the mere fact that an individual is terminated does
not give rise to an inference of discrimination, irrespective of whether the
termination occurs due to performance problems, conduct issues, or even without
any “cause.”73
5. 	Hiring someone of a different race. Dr. Shah asserts that his qualifications and
those of another physician were “practically the same,” but that Dr. Smith,
another physician (who was African American), was hired instead of him.74 As a
matter of law, the fact that a person of one race is hired in lieu of a person of
70 	Objection, Exh. A at ¶¶ 22, 39.
71 	See Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999).
72 	Objection, Exh. C at 2.
73 	See, e.g., Williams v. Times Warner Inc., 2010 WL 846970, at *4 n.4 (S.D.N.Y. Mar. 3, 2010), aff’d,
440 F. App’x 7 (2d Cir. 2011) (even if defendant terminated employee for “no reason,” such
termination does not give rise to inference of discrimination because “there is a distinction between
firing Plaintiff for no reason and firing Plaintiff for a prohibited reason”) (citing Forde v. Beth Israel
Med. Ctr., 546 F. Supp. 2d 142, 145 n.5 (S.D.N.Y. 2008) (upholding the rule that an at-will
employee may be “discharged for any nondiscriminatory reason or no reason at all”) (emphasis
added)).
74 	Response at ¶ 6(e); see also Response, Exh. B, at 4.
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another race is insufficient without more to establish a claim.75 Dr. Shah
contends that he had “better experiences than Dr. Smith who was an African
American Physician.”76 However, Dr. Shah’s subjective views of his experience
are irrelevant, especially where (as here) he provides no factual support for such
belief.77
6. 	Hiring another, younger, doctor for a position for which Dr. Shah had applied.
Dr. Shah takes issue with Dr. Miller’s decision to hire Dr. Burton for the position
Dr. Shah applied for in 2007, apparently stating that the selection of Dr. Burton is
the “Best Example”78 of discrimination based upon race, religion, nationality, and
color. According to Dr. Shah, Dr. Miller hired Dr. Burton because they were
friends. Even if that were true, it would not be a basis for a valid discrimination
claim. Similarly, Dr. Shah asserted in oral argument that Old GM gave priority to
younger doctors, like Dr. Burton, with respect to promotions. “Dr. Burton, he’s
younger, well, 15 years younger than me.”79 It is simply implausible to draw the
inference that because one doctor, approximately 15 years younger than Dr. Shah,
received a promotion, Dr. Shah was discriminated against based on his age of 59.
Moreover, Dr. Shah does not allege any facts indicating that he was more
qualified than Dr. Burton for the position. Finally, Dr. Shah’s contention that a
Dr. Oteyza (who was not making the hiring decision) recommended him for the
position, or that other personnel “were expecting me (Dr. Shah) will be the next
Plant Medical Director . . .” is not probative, or even relevant in any way.80
7. 	Debtor did not assist Dr. Shah in finding new employment. Dr. Shah alleges
that Dr. Burton and Dr. Miller failed to “help me get another plant physician
position.”81 But Dr. Shah does not allege that the Debtors assisted others in
obtaining future employment. No showing was made that by reason of law,
75 	Duviella v. Jet Blue Airways, 353 F. App’x 476, 478 (2d Cir. 2009) (finding that merely alleging that
a co-worker of a different race was promoted instead of the plaintiff was insufficient to establish
racial discrimination under Title VII); Ford v. City of Dearborn, 2010 WL 4137518, at *5 (Mich. Ct.
App. Oct. 21, 2010) appeal denied, 489 Mich. 971, 798 N.W.2d 775 (Mich. 2011) (holding that the
fact that plaintiff’s replacement was of a different race is not enough to create an inference of
discrimination).
76 	Response at ¶ 6(e).
77 	See Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999).
78 	Response, Exh. B at 7.
79 	See Tr. of Hrg. on May 15 at 70. See also Duviella v. Jet Blue Airways, 353 F. App’x 476, 478 (2d
Cir. 2009) (the fact that the promotions in question were given to younger people of a different race
is not sufficient).
80 	Response at ¶ 6(b). I note also that Dr. Burton’s promotion occurred before February 9, 2008, and
therefore should not be considered by the court. See, e.g., Ford v. Bernard Fineson Dev. Center, 81
F. 3d 304, 307 (2d Cir. 1996) (a claim must be brought within 300 days of the occurrence of the
alleged act). In addition, Dr. Shah cites various other “Factual Examples of Injustice and
Discrimination” that are not only irrelevant, but many of such examples occurred before February 9,
2008, and therefore should not be considered by the court. See id.; Response at ¶ 6.
81 	Response at ¶ 6(f).
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contract, or any other reason, the Debtors were required to assist Dr. Shah.82
Thus, this allegation is not probative with respect to the Claim.
8. 	Supervisor intentionally found faults with Dr. Shah’s work. Dr. Shah also
alleges that Dr. Burton immediately “started intentionally finding faults with [his]
documentation” and “tried to prove that [he was] a bad doctor through an
engineered, pretextual and concealed plan.”83 But Dr. Shah cites no specific
examples to support this generalized accusation. Notably, the Debtors indicate
that Dr. Shah does not deny that there were faults with the documentation.84 And
even if Dr. Burton went out of his way to find those faults, there still are no facts
alleged to support the claim that Dr. Burton’s alleged actions were taken because
of Dr. Shah’s membership in any protected category.85
4. 	Religious Discrimination Claim
Finally, I turn to Dr. Shah’s religious discrimination claim. To establish a prima
facie case of religious discrimination, an employee must allege that (i) he held a bona fide
religious belief conflicting with an employment requirement; (ii) he informed his
employer of this belief; and (iii) he was thereafter disciplined for failure to comply with
the conflicting employment requirement.86
Dr. Shah makes three principal allegations in support of his religious
discrimination claim. He alleges that the Debtors executed a plan “to be rid of me and
my religious beliefs which they felt threatened their medical practice and the practice of
medicine in general,” and claims that the “superiority of Vedic Literature over Modern
82 	Duncan v. AT&T Communications, Inc., 668 F. Supp. 232, 235 (S.D.N.Y. 1987) (finding no
discrimination when the employer failed to take affirmative steps to help employee find new
employment) (citing United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715,
103 S. Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (inquiry in Title VII case is whether employer is
treating some people less favorably than others because of race)).
83 	Response at ¶ 6(d); Response, Exh. B at 5.
84 	See GUC Trust’s Reply to Response at ¶ 6.
85 	See supra n.69.
86 	Lytle v. JP Morgan Chase, 2012 WL 393008, at *28 (S.D.N.Y. Feb. 8, 2012) report and
recommendation adopted sub nom., Lytle v. JP Morgan Chase, 2012 WL 1079964 (S.D.N.Y. Mar.
30, 2012) (citing Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001)).
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Bio-Medical Science topic was discussed by me during several General Motors
Conferences and that was one of the major reasons for my termination.”87 Dr. Shah also
asserts that his Claim is supported by the fact that he was not invited to attend
conferences that other similarly situated physicians were invited to attend.88
But significantly, none of these allegations, nor any others in Dr. Shah’s Response
or Claim, include any contention by Dr. Shah that (i) his religion required him to practice
medicine in a manner that conflicted with the requirements of his contract; (ii) he sought
permission to practice medicine according to any tenet of faith; or (iii) he was disciplined
for refusing to engage in a medical practice that conflicted with his faith. In other words,
he has failed to sufficiently allege any of the essential elements of a religious
discrimination claim.
Instead, Dr. Shah’s core contention is that the Debtors (and others) rejected his
professional medical opinion that Vedic Literature contains superior concepts to modern
bio-medical science and is essential to health reform.89 During oral argument, Dr. Shah
asserted that he “was not treating according to the Vedic literature or Eastern
Philosophy.”90 But the fact that Dr. Shah was not putting into practice his medical
beliefs at issue arguably makes it even less plausible that he was terminated because of
them. Simply put, according to Dr. Shah’s own contentions, the “views” at issue were
87 	Response at ¶ 16; see also Response at ¶ 22 (“[T]hey are unable to comprehend and unable to
appreciate that Vedic Literature in Sanskrit language with authoritative English translation are
superior to Modern Science and Bio-medical Science.”); Response, Exh. E.
88 	Response, Exh. B at 4 (“I believe that this action of not inviting me . . . was based upon my belief of
Eastern Philosophical Concepts which I strongly consider as the super-scientific and [more] accurate
than the conventional Modern Science . . . .”).
89 	Objection, Exh. A at ¶ 39; see also Response, Exh. E at 3.
90 	See Tr. of Hrg. on May 15, 2012 at 71.
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with respect to improving the practice of medicine—not Dr. Shah’s “religious beliefs” or
any need for an accommodation to enable him to practice his beliefs in the workplace.
5. 	Damages
Though I find no claims that would support an award of damages of any amount, I
believe it desirable, for the sake of completeness, to discuss the matter of damages. Even
if Dr. Shah’s employment discrimination claims were otherwise valid, applicable statutes
and federal bankruptcy law would dramatically limit the damages he seeks. The
$500,000 in compensatory damages and $10 million in punitive damages sought by Dr.
Shah are well beyond what is supported by law.
Title VII limits compensatory and punitive damages to $300,000 for a company
of Old GM’s size.91 The ADEA does not permit recovery for any punitive damages.92
Punitive damages are also barred under the Michigan Civil Rights Law.93 Therefore,
even if punitive damages were otherwise acceptable in this context, the statutes under
which Dr. Shah brings his Claim would limit the sum of his compensatory and punitive
damages to $300,000 on one of his theories, and prohibit punitive damages altogether
under the others—all well below the $10 million he seeks.
91 	See 42 U.S.C.A. § 1981a(b)(3)(D); see also Black v. Pan American Laboratories, L.L.C., 646 F.3d
254, 264 (5th Cir. 2011) (holding that Title VII’s damages cap applies to each party in an action, not
to each claim).
92 	See Castro v. City of New York, 2012 WL 592408, at *1 (S.D.N.Y. Feb. 24, 2012) (only ADEA
remedies available are “make-whole remedies such as back pay, front pay and reinstatement”),
quoting Hatter v. New York City Hous. Auth., 1998 WL 743733, at *1 (2d Cir. Oct. 22, 1998); Boise
v. Boufford, 121 F. App’x 890, 892 (2d Cir. 2005) (recognizing that punitive damages are not
available under the ADEA).
93 	See Eide v. Kelsey-Hayes Co., 427 N.W.2d 488, 488 (Mich. 1988); Rafferty v. Markovitz, 602
N.W.2d 367, 369-70 (Mich. 1999) (punitive damages may not be imposed under the Michigan Civil
Rights Law).
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Then, the purpose of punitive damages is to punish wrongdoers and deter future
wrongful conduct.94 However, in a bankruptcy setting where the recovery of punitive
damages by some creditors depletes recovery of other creditors, courts have regularly
exercised their equitable power to disallow or subordinate punitive damage claims.95
Disallowance of punitive damages claims is particularly appropriate in a liquidating case,
including a liquidating chapter 11 case, where there is no future conduct to deter; the
people guilty of the misconduct would not be punished for it; and the victims of the
punitive damages would in reality be only other, wholly innocent, creditors.
Awarding punitive damages in cases where all unsecured creditors are not
receiving full satisfaction of their claims in effect forces the innocent creditors to pay for
the debtor’s wrongful conduct.96 The unfairness of this was recognized at the Eleventh
Circuit Court of Appeals.97 It was for that reason that in an earlier matter in this case, I
found punitive damage claims to be inappropriate in instances where, as there and here,
the debtor is liquidating. 98 Thus, even if a showing had been made that punitive
damages might be appropriate in a non-bankruptcy context, I could not authorize them
here.
94 	See In re Johns-Manville Corp., 68 B.R. 618, 627 (Bankr. S.D.N.Y. 1986), aff’d, 78 B.R. 407
(S.D.N.Y. 1987), aff’d sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir. 1988) (citing
Williams v. City of N.Y., 508 F.2d 356 (2d Cir. 1974); Sibley v. KLM-Royal Dutch Airlines, 454 F.
Supp. 425, 428 (S.D.N.Y. 1978)).
95 	See, e.g., In re Johns-Manville, 68 B.R. at 627; In re A.H. Robins Co., Inc., 89 B.R. 555, 562 (E.D.
Va. 1988).
96 	See In re Johns-Manville, 68 B.R. at 627-628 (stating “it is well within the authority of this court to
disallow a claim for punitive damages . . . where allowing such a claim would ill serve the policy of
such awards”).
97 	See Novak v. Callahan (In re GAC Corp.), 681 F.2d 1295, 1301 (11th Cir. 1982) (“[T]he effect of
allowing a punitive damages claim would be to force innocent creditors to pay for the bankrupt’s
wrongdoing. Such a result would be inequitable . . . .”).
98 	See Tr. of Hrg. on April 23, 2012 at 15-16.
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Conclusion
For the foregoing reasons, the GUC Trust is to settle an order disallowing Dr.
Shah’s claims.
Dated: 	New York, New York 	s/Robert E. Gerber
August 6, 2012 	United States Bankruptcy Judge
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