El-Ghazaly v. Kim et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TAREK EL-GHAZALY, M.D.,
Plaintiff,
- against -
JASON KIM, M.D., and WAYNE
WALTZER, M.D.,
Defendants.
MEMORANDUM DECISION AND
ORDER
25-cv-3939 (BMC)
COGAN, District Judge.
Plaintiff, Dr. Tarek El-Ghazaly, was fired from his position as a resident from the
Urology Program at Stony Brook University Hospital (“SBUH”). Defendants, Drs. Jason Kim
and Wayne Waltzer, say that it was because of his “consistently deficient performance.” Indeed,
the record establishes that over the course of plaintiff’s employment, defendants both observed
and received reports about plaintiff’s performance issues and made multiple attempts to help him
improve.
Plaintiff sees things differently. He believes that he was fired in retaliation for one or all
of three protected complaints. Plaintiff thus filed the instant case against defendants, bringing
claims for retaliation and “stigma-plus.”1 Defendants have moved for summary judgment on all
counts. For the reasons set forth below, the motion is granted as to plaintiff’s federal claims.
Plaintiff’s retaliation claim under the New York State Human Rights Law (“NYSHRL”) is
dismissed without prejudice to refiling in state court.
1 Other claims and defendants were dismissed on defendants’ motion to dismiss.
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BACKGROUND
In November 2022, plaintiff was hired as a second-year (junior) urology resident at
SBUH.2 Initially, both Waltzer, the Chairman of the Urology Department, and Kim, the Urology
Program Director, believed that plaintiff was a good candidate, although Waltzer did not think it
was a good sign that plaintiff had held several prior medical positions for only short periods of
time. During the vetting process, Waltzer and Kim discovered that plaintiff had failed Step 2 of
his United States Medical Licensing Exam six times. Despite their reservations, and Waltzer’s
subsequent preference for another candidate, plaintiff was ultimately hired.
Defendants quickly grew concerned with plaintiff’s performance. In the first few months
of plaintiff’s employment, Waltzer observed that plaintiff was often frantic or flustered when
assisting Waltzer with his procedures, and that plaintiff’s movements were not as smooth or as
measured as Waltzer would have expected of someone at plaintiff’s level. In addition, Waltzer
was troubled by the way that he saw plaintiff interacting with patients during clinic (e.g., talking
over them), and had heard several complaints about plaintiff from other attending physicians at
monthly faculty meetings.3
Kim similarly observed that plaintiff approached his procedures with a nervous, frenetic
energy and appeared to be rushing, which caused plaintiff to make mistakes. He also observed
that plaintiff had difficulty performing the urologic care that Kim expected at plaintiff’s level,
such as ureteral stent insertion. During this time, Kim received multiple complaints from nurses
2 The clinical hierarchy, from most junior to most senior, is junior residents, then senior residents, then chief
residents, then attending physicians, then (within the attending physicians tier) department/program directors.
3 The fact that Waltzer (and others) heard complaints about plaintiff is not hearsay. What matters is not whether the
complaints were accurate (that is, whether the content of them was true), but that the complaints were made. In
other words, on summary judgment, the Court properly considers the complaints about plaintiff “not for [their] truth,
but for the fact that [they were] said.” United States v. Dawkins, 999 F.3d 767, 789 (2d Cir. 2021).
Notwithstanding, the Court notes that there is some hearsay embedded in defendants’ 56.1 statement and
accompanying declarations, which has been disregarded along with other inadmissible evidence.
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and attending physicians about plaintiff’s performance and resistance to constructive criticism.
Kim recalls asking the chief residents to counsel plaintiff about these issues. Kim himself
informally counseled plaintiff on multiple occasions but did not notice a change in plaintiff’s
performance or behavior.
Defendants were not the only supervisors who were concerned. For example, Dr. Annie
Chen, a chief resident at the time, discovered that plaintiff was unable to place a Foley catheter,
which is something that she would have expected someone at plaintiff’s level to already be able
to do. Granted, that incident was in the very early days of plaintiff’s employment. However, in
the months that followed, Chen also received complaints about plaintiff: nurses told her that
plaintiff could not properly assemble instruments and did not react well to criticism, and
attending physicians told her about plaintiff’s lack of operation-related competency.
Throughout this time, Chen was advising Kim of plaintiff’s perceived performance issues
and discussing ways that they could help plaintiff improve. Moreover, in the background, Chen
and the other chief residents were messaging each other about plaintiff’s issues. Those
messages, most of which lack context, include things like, “Oh boy. [Plaintiff] really needs
some work haha”; “[Plaintiff] just blew it”; “[Plaintiff] is pretty clumsy”; “I blame it on
[plaintiff] taking too long”; and, “All I ever hear from [plaintiff]. Excuses[.] Never his fault.”
In May 2023, at roughly the six-month mark of plaintiff’s employment, plaintiff received
two formal evaluations from Dr. Howard Adler, an attending physician with whom he had
worked on a series of surgical cases that month. In both evaluations, Adler found plaintiff
lacking. Specifically, in the first evaluation, a so-called “Faculty Evaluation,” Adler concluded
that plaintiff did not meet expectations in seven of eleven areas. He wrote that plaintiff was
well-read but needed more exposure to the operating room “to bring his operative skills up to his
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level of training.” He further wrote that plaintiff sometimes “came off as a bit ‘confrontational’”
when presenting his ideas, an issue which Adler said that he and plaintiff discussed. In the
second evaluation, a so-called “Milestone Evaluation,” Adler concluded that plaintiff was below
“Level 2” (on a scale of “Not Yet Completed Level 1” to “Level 5”) in 18 of the 20 metrics,
which included a wide range of topics and skills: patient evaluation, periprocedural care,
endoscopic procedures, open procedures, minimally invasive procedures, office-based
procedures, medical knowledge, practice-based learning and improvement, systems-based
practice, professionalism, and interpersonal and communication skills.
On June 2, 2023, Kim held his first formal counseling session with plaintiff and issued
him a verbal warning.4 The conversation covered various complaints that Kim had received
about, inter alia, plaintiff’s difficulty focusing on tasks, resistance to criticism, and inadequate
endoscopic, laparoscopic, and robotic skills. Kim advised plaintiff that in order to improve, he
needed to thoughtfully consider the feedback that he was receiving instead of responding
defensively. Kim noted that they would reevaluate his performance in two months. Kim
believed that plaintiff was not receptive at all.
About three weeks later, defendants attended a faculty meeting during which three
attending physicians raised concerns about plaintiff. Dr. Justina Tam said that plaintiff had
attempted to blame the urology interns for not placing a patient on pre-operation antibiotics or
ordering an x-ray, even though those were plaintiff’s responsibilities. Dr. David Schulsinger said
that plaintiff failed to follow his instructions regarding the proper use of an endoscope during a
4 Plaintiff does not dispute what was said during the counseling session. However, plaintiff argues that the
counseling session was retaliatory in response to a “patient-safety” complaint that plaintiff made about a doctor who
had since resigned. First, argument has no place in a responsive 56.1 statement, and plaintiff’s is littered with it.
Notwithstanding, plaintiff fails to raise a genuine dispute of fact on this matter. Plaintiff has no proof that this
meeting was retaliatory – not even his own testimony. All he cites in support is a lengthy email that he authored, the
substance of which (to the extent that it’s coherent) is obviously hearsay.
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procedure, resulting in plaintiff breaking the endoscope inside of a patient. Lastly, Dr. Robert
Wasnick said that while plaintiff was on call overnight, plaintiff had been paged regarding a
potential testicular torsion in a pediatric patient but failed to treat it as an urgent issue. Kim
maintains that it was after this complaint-filled faculty meeting that he began to consider
terminating plaintiff. Indeed, later that day, he messaged two attending physicians that plaintiff
was “on his way out.”
On June 26, 2023, a few days after the faculty meeting, Kim held a second formal
counseling session with plaintiff.5 He reiterated his earlier concerns about plaintiff’s
performance and behavior, then relayed the complaints that he had just received at the faculty
meeting. During that session, plaintiff appeared to Kim as defensive and resistant to criticism.
Not much of note happened after that during the summer of 2023. Then, in September
2023, plaintiff started a two-month external rotation at the Northport VA Medical Center.
During this rotation, Dr. John Fitzgerald was the attending physician overseeing plaintiff.
On October 29, 2023, plaintiff sent an email to Kim and Dr. William Berg, an attending
physician and the Associate Residency Program Director at the time, making various complaints
about Fitzgerald. The email, over eight single-spaced pages long, covered a variety of people
and topics. Relevant here, plaintiff recounted a time when Fitzgerald “stabbed through
[plaintiff’s] gloves with a bloodied sharp instrument when [he] failed to hold the needle holder
the exact way [Fitzgerald] did.” Further, plaintiff, who is Egyptian, stated that Fitzgerald had
made several offensive comments to him about Egyptians (including, e.g., “Did you know that
5 As with the first counseling session, plaintiff does not dispute what was said or that the counseling session
occurred. However, plaintiff argues (again, inappropriate for a responsive 56.1) that the counseling session was
“retaliatory.” The cited evidence does not support the conclusion. That a handful of other supervisors
acknowledged plaintiff’s improvement after the counseling session says nothing of Kim’s motivation in holding the
counseling session in the first place.
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Egyptians used to inter-breed?”). Based on the alleged glove-stabbing incident and
discriminatory comments, Kim notified Waltzer and the Graduate Medical Education (“GME”)
Office, and he and Waltzer agreed that the allegations required outside investigation by the
Office of Equity and Access (“OEA”). Plaintiff ultimately allowed Kim to file a charge with the
OEA on his behalf after Kim requested to do so. In February 2024, plaintiff received a letter
from OEA which stated that the discrimination allegations against Fitzgerald were
“substantiated.”
In the background, from September 2023 through March 2024, the chief residents at
SBUH continued to exchange increasingly negative messages about plaintiff. Among other
things, chief residents remarked that plaintiff was “such a bad junior,” “still intern level,” and
was “unfit to become pgy4.”6 Further, they expressed not only annoyance with him (“I cannot f-
----g stand [plaintiff]”), but fear of him (“I don’t want him to come after me lol”; “[Plaintiff] is a
little crazy”; “[Plaintiff] is dangerous. I’m worried being on call with him now”; “Honestly I
[am] so scared of [plaintiff] lol.”). Although the chief residents exchanged many of these
messages after plaintiff filed his discrimination complaint against Fitzgerald, there is no evidence
that the chief residents knew about the discrimination complaint.
Meanwhile, Kim continued to receive complaints about plaintiff’s performance. In fact,
by January 2024, chief residents were telling Kim that plaintiff should not advance to senior
resident because there would be patient care concerns. Kim (and Waltzer) also learned that
plaintiff scored lower than 73% of exam takers for the November 2023 in-service exam. Finally,
other supervisors at SBUH submitted performance evaluations of plaintiff which, though better
6 “PGY” stands for “post graduate year,” and the number ostensibly reflects the number of years that have passed
since the medical resident graduated medical school, assuming the resident advances on schedule.
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than before, still reflected the same kinds of concerns with plaintiff’s skills.7 Kim, with Berg,
decided to hold a third formal counseling session with plaintiff to discuss the foregoing.
During this counseling session on January 15, 2024, Kim raised plaintiff’s continuing
performance problems, the concerns that the nurses had regarding his demeanor and treatment of
them, and his low in-service exam score. Kim also discussed an email that plaintiff had sent to
him a couple days prior regarding an incident with a resident in another department. Kim found
this email troubling because it appeared as though plaintiff was shifting blame and harping on a
minor issue instead of focusing on his own improvement. Kim told plaintiff that these types of
emails were a poor means of communicating with his superiors. He also advised plaintiff, with
respect to all of the topics that they discussed at the counseling session, that if plaintiff did not
show improvement, he may not be promoted to a senior resident.8
On February 14, 2024, in consultation with the GME office and after discussing the
matter with Berg and Waltzer, Kim issued plaintiff a “Letter of Warning.” The letter detailed
several occurrences where “poor judgement was exercised,” and listed concerns with plaintiff’s
medical knowledge, professionalism, and interpersonal and communication skills. The letter
also mentioned plaintiff’s “inappropriately verbose emails about concerns or complaints,” and
7 In Berg’s Milestone Evaluation, he ranked plaintiff at Level 2 (again, on a scale of zero to five) in 16 of the 20
metrics and left the remaining four metrics blank. In Dr. Christopher Atalla’s Faculty Evaluation, he put plaintiff at
“Meeting Expectations” for all metrics except four: of those four, one was marked as “Approaching Expectations”
and the other three were marked “N/A.” Atalla also commented: “Resident displays professionalism in the OR.
Needs to continue to read and fine tune his surgical skills.” Plaintiff received a positive Faculty Evaluation from Dr.
Edward Loizides, with whom plaintiff worked during a two-month rotation at Good Samaritan Hospital. Loizides
marked plaintiff above “Meeting Expectations” in all metrics and commented that plaintiff was “a well motivated
and pleasant physician who [was] willing to learn.”
8 As with the first and second counseling sessions, plaintiff does not dispute what was said at the third counseling
session or that the counseling session occurred. Rather, plaintiff argues (again, inappropriate for a responsive 56.1)
that the January 15, 2024 counseling session was not held in good faith but was instead “a veiled threat delivered
immediately after Plaintiff raised his October 29, 2023 discrimination complaint.” In support, plaintiff cites page
112 of his deposition, which gives the Court nothing to work with: just an incomplete question – “... about the
complaint?” – and plaintiff’s vague response to it – “During the January meeting I did.”
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advised plaintiff that the emails were “difficult to read and ineffective as a means of
communication.” Although the letter itself did not identify which of plaintiff’s “concerns or
complaints” it encompassed, Kim testified that the discrimination complaint against Fitzgerald
was not one of the complaints to which he was referring.9 He explained, rather, that “when
[plaintiff] thought he wasn’t doing well,” he would send lengthy emails about irrelevant stories
“that he only ha[d] second or third-hand knowledge about,” to the point where people told Kim
that they “stopped reading” because they “couldn’t follow what he was saying.”
The letter then set out a plan for improvement and a timeframe in which improvement
had to be demonstrated. Finally, the letter concluded that if plaintiff continued to perform
unsatisfactorily, he could be placed on probation or be subjected to other corrective action.
Plaintiff says that Kim simultaneously issued him a verbal warning that his complaints would
“sink” him and be his “downfall” in the program, and Kim ordered him to stop making written
complaints “no matter how small or big.”
Kim worked with plaintiff on four surgeries on March 15, 2024, then completed a formal
evaluation of his performance. He acknowledged that plaintiff was able to perform a
ureteroscopy and laser lithotripsy in an appropriate manner. However, Kim also noted his
disappointment with plaintiff’s performance in the three sacral neuromodulation cases.
According to Kim, plaintiff had knocked a needle from the sterile field onto the floor, but was
completely oblivious to this and, when Kim pointed out this error to him, plaintiff denied
responsibility. In addition, plaintiff apparently attempted to make an incision prior to
anesthetizing a patient.
9 In his opposition, plaintiff asserts that Kim “conceded that those references to ‘complaints’ [in the Letter of
Warning] included [p]laintiff’s discrimination complaint against Dr. Fitzgerald.” There is no such concession, and
for plaintiff to say otherwise is misleading.
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The next day, plaintiff sent an email to Waltzer and Berg with the subject line, “Concerns
of facilitated assault through breach of confidentiality and retaliatory action.” It is seven single-
spaced pages long and contains various allegations about Kim retaliating against him.
On March 18, 2024, Kim emailed the three chief residents asking for “an honest
assessment of [plaintiff’s] strengths and weaknesses.” He wrote that there were “significant
concerns” about plaintiff’s ability to become a senior resident and asked, “Do you think he will
be ready to progress to senior resident in 6 months? Is there anything we can do as a program to
help him?” All three chief residents said no.
One chief resident recounted that plaintiff had “[p]oor and concerning” operating room
insight, was behind on robotic bed-siding and had not improved over the last nine months, and
appeared to be distrusted among the nurses and ancillary staff. Another chief resident noted that
although plaintiff “[s]eem[ed] to have good intentions” and “care about patients,” he was “brash”
with other staff, was “the most difficult to teach” of all the juniors that he had worked with, and
would place blame on other people or residents. The last chief resident recognized that plaintiff
“ha[d] been learning and trying to prove his competency,” but flagged that plaintiff nonetheless
had deficiencies with his operative skills, showed poor clinical judgment for patient care that was
“completely inappropriate for his level of training,” and was “argumentative and defensive” in
response to receiving constructive criticism.
On March 25, 2024, Waltzer held a counseling session with plaintiff to discuss his
concerns with plaintiff’s surgical skills. Plaintiff surreptitiously recorded that meeting. At one
point, Waltzer asked plaintiff how he thought he was doing in the program. Plaintiff said that his
chief residents and attending physicians were “happy” with him and that he was doing “great.”
Waltzer asked if plaintiff was ready to be a senior resident, and plaintiff said yes. Waltzer said
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that he would be watching to make sure the things that they discussed were improved upon if
plaintiff was going to move up.
A few days later, plaintiff emailed Waltzer a follow-up to their discussion. Among other
things, plaintiff explained his perspective on one of the surgical incidents that they discussed and
blamed another resident for causing the problem. Plaintiff concluded that he was looking
forward to improving and had “already shown [his] ability to learn and progress at
Northwestern,” where he had worked prior to coming to SBUH. Waltzer’s response was this:
While I appreciate your discussion given in response to our meeting, the point is
not to level criticism at one of your co-residents (that is the responsibility of the
faculty) nor is it to discuss your previous experience at Northwestern which has
no impact on your level of performance or evaluation at Stony Brook.
Additionally, long diatribes on surgical technique only serve to deflect from the
points in our discussions as they relate to you. The premise of our meeting is to
discuss your current activity at Stony Brook and try to make some suggestions for
improvement. I believe this is the path to making progress in surgery. I hope you
will take this advice constructively.
An hour later, plaintiff asked Waltzer for a recommendation for a third-year position at
Harvard Medical School, stating, “Given the ongoing issues with [Kim], I have been
advised amicably by my fellow residents to seek positions elsewhere to avoid being held
back in my training despite the good job I’ve been doing.” Waltzer agreed to support his
application.
On April 8, 2024, plaintiff sent an email to the GME Office with the subject line, “A
Dangerous Situation at Stony Brook Urology.” This email was 20 single-spaced pages long and,
like the last email, contained various allegations about Kim retaliating against him, among many
other things. Also, just days before, plaintiff emailed his fellow residents a similar lengthy
message about retaliation against him.
On April 17, 2024, plaintiff was terminated through a letter signed by both defendants.
The termination letter cited a “pattern of disrespect and disruptive communication” and a
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“condescending attitude” toward nursing and support staff; failure to return pages and calls;
“reticence to see patients when requested”; and a “[f]ailure to accept or incorporate formative
feedback into practice.” The letter concluded that these behaviors had created an
“unprofessional work environment” and raised “concerns about the safety of our patients.”
Plaintiff appealed his termination through the GME’s administrative review process, during
which he was permitted to present testimony and evidence in support of his allegation that his
termination was retaliatory. The GME committee voted to uphold plaintiff’s termination and
noted that progressive discipline was not required prior to his termination.
Roughly a year later, plaintiff secured a fellowship at the University of Virginia
(“UVA”). UVA then rescinded the offer. Neither party has submitted any evidence relating to
UVA’s stated reasons for the rescission. However, plaintiff alleged in his amended complaint
that UVA cited “board ineligibility” at first, then “lack of transparency during the interview
process.”
Kim recalls receiving an email from UVA’s Chair of Urology after plaintiff got the offer,
in which the UVA Chair asked him to speak about plaintiff. Kim also recalls speaking with the
UVA Chair on the phone and telling her that plaintiff had been terminated, but he doesn’t
remember any other details about that conversation. It was shortly after this conversation that
UVA withdrew the offer.
DISCUSSION
I. 	Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is
warranted where the “movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must
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view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
158-59 (1970)). There is no genuine issue of material fact “where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party.” Lovejoy-Wilson v.
NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
A party may not defeat a motion for summary judgment solely through “unsupported
assertions” or conjecture. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d
Cir. 1995). Rather, “‘[t]he nonmoving party must come forward with specific facts showing that
there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita, 475 U.S. at 586-87); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for
summary judgment when the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). Indeed, the non-moving party
must offer “concrete evidence from which a reasonable juror could return a verdict in [her]
favor.” Anderson, 477 U.S. at 256.
II. 	Retaliation Under § 1983
“[A] state employee may bring a retaliation claim under § 1983 against a supervisor who,
acting under color of law, retaliates against him for opposing discrimination in the terms of his
employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 82 (2d Cir. 2015).
Federal retaliation claims are evaluated under the three-step burden-shifting approach of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 843 (2d Cir. 2013).
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A. 	Plaintiff’s Prima Facie Case
At step one, “plaintiff must establish a prima facie case of retaliation by showing
1) participation in a protected activity; 2) the defendant’s knowledge of the protected activity;
3) an adverse employment action; and 4) a causal connection between the protected activity and
the adverse employment action.” Id. at 844 (internal quotation marks and citations omitted).
The parties do not dispute that plaintiff engaged in protected activity on three occasions:
first, on October 29, 2023, when he sent an email to Kim and Berg lodging allegations of
discrimination against Fitzgerald; second, on March 16, 2024, when he sent an email to Waltzer
and Berg lodging allegations of retaliation against Kim; and third, on April 8, 2024, when he sent
an email to the GME Office lodging allegations of retaliation against Kim. There is also no
genuine dispute as to whether Kim and Waltzer knew about the complaints,10 and that plaintiff’s
termination on April 17, 2024 was an adverse employment action. Thus, causation is the only
element of plaintiff’s prima facie case in dispute.
A plaintiff can establish causation at the prima facie stage “(1) indirectly, by showing
that the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence ... or (2) directly, through evidence of retaliatory animus directed against
the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000). Here, the temporal proximity between the latter two complaints and the termination is
pretty close: plaintiff was fired just a month after his first retaliation complaint about Kim, and
just nine days after his second retaliation complaint about Kim. See Treglia v. Town of
Manliusm, 313 F.3d 713, 721 (2d Cir. 2002) (roughly one-month lapse between protected
10 Defendants say in their reply that there is no evidence that they knew about the April 8, 2024 email to the GME
Office. There may be no direct evidence, but the Court finds it highly unlikely that defendants didn’t know about
that complaint. After all, defendants were plaintiff’s supervisors with hiring and firing authority.
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activity and adverse employment action sufficient to support an inference of causation). As for
the October 2023 discrimination complaint against Fitzgerald, the lapse between it and the
termination – five-and-a-half months – is too great to give rise to an inference of causation. See
Gehlaut v. N.Y.C. Dep’t of Educ., No. 24-1741, 2025 WL 2586770, at *2 (2d Cir. Sept. 8, 2025)
(summary order) (“[W]hen a plaintiff relies on temporal proximity alone to establish causation,
courts uniformly hold that the temporal proximity must be very close, which usually means less
than three or four months.” (internal quotation marks and citation omitted)). All that being said,
if the Court were to look at the timing of the termination in isolation, causation would be
satisfied based on the latter two complaints.
But there is a well-known rule in this Circuit that severs causation at the prima facie
stage: “Where timing is the only basis for a claim of retaliation, and gradual adverse job actions
began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001), as amended (June 6, 2001). The Slattery rule undoubtedly governs this case.
In June 2023, before any of the protected activity took place, Kim held two formal
counseling sessions with plaintiff to discuss his performance and attitude problems – those that
Kim observed first-hand and those that he heard from others. Notwithstanding those counseling
sessions, the negative feedback about plaintiff continued to roll in en masse, so Kim held a third
formal counseling session with him in January 2024, almost three months after plaintiff’s first
protected complaint. A month after that, Kim issued plaintiff a Letter of Warning. It was only
after more problems with plaintiff’s performance continued to surface over the next month that
plaintiff lodged his second and third protected complaints.
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There is nothing inherently nefarious about Kim holding that third formal counseling
session or issuing plaintiff the Letter of Warning, despite plaintiff engaging in protected activity
three months prior, in light of the continued complaints about plaintiff’s performance, the
lukewarm evaluations, and the poor in-service score. See Wright v. N.Y.C. Off-Track Betting
Corp., No. 05-cv-9790, 2008 WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008) (“If an employer’s
conduct before and after an employee complaint is consistent, the post-complaint conduct is not
retaliatory.”); Hunter v. St. Francis Hosp., 281 F. Supp. 2d 534, 547 (E.D.N.Y. 2003) (no
causation where poor performance evaluations and disciplinary record were consistent both
before and after the plaintiff engaged in protected activity). That plaintiff engaged in protected
activity months before the third counseling session and Letter of Warning does not (and cannot)
shield him from legitimate reproach, particularly for performance problems that began long
before plaintiff ever engaged in protected activity and which remained unresolved in the eyes of
his superiors.
At the prima facie stage, the Court is not concerned with defendants’ reasons for
terminating plaintiff (though they’re apparent) or whether those reasons were mere pretext. At
the prima facie stage, all that matters is plaintiff’s proffer – with respect to the contested element,
his evidence that he was fired because of his protected complaints. But plaintiff can’t meet that
burden. The record shows that plaintiff’s termination was the foreseeable result of what his
superiors perceived as unabating performance and behavioral issues that began before plaintiff
ever engaged in protected activity and for which he was repeatedly counseled and warned. See,
e.g., Perez v. City of New York, No. 16-cv-7050, 2020 WL 1272530, at *17 (S.D.N.Y. Mar. 16,
2020) (“Because [plaintiff] was subject to extensive, progressive counseling and discipline
before he [engaged in protected activity], he cannot show that his [protected activity] and his
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termination are causally linked.”), aff’d, 843 F. App’x 406 (2d Cir. 2021); see also Wilkinson v.
Nord Anglia Educ. Ltd., No. 17-cv-7421, 2019 WL 3430662, at *10 (S.D.N.Y. July 30, 2019)
(“It is well established that an adverse employment action cannot serve as the basis for a
retaliation claim if the action was set in motion before a plaintiff engaged in protected activity.”)
Plaintiff raises a number of scattershot arguments in an effort to show causation directly,
through evidence of retaliatory animus (as opposed to indirectly, through temporal proximity).
None of these arguments are presented within the strictures of the McDonnell Douglas test
(indeed, he conflates causation with pretext), and many of them are based on
mischaracterizations of the record. Plaintiff has thrown everything at the wall to see what sticks,
but at the risk, and perhaps with the intention, of confusing the Court.
The one argument that has teeth, at least baby ones, involves Kim’s verbal warning to
plaintiff in February 2024 (between the first and second protected activities). Specifically,
plaintiff testified that Kim told him that his complaints would “sink” him and be his “downfall”
in the program, and ordered him to stop making written complaints “no matter how small or
big.” Plaintiff argues that Kim’s comments are direct evidence of his retaliatory animus.
However, no reasonable jury could conclude that Kim was referring to plaintiff’s October 2023
discrimination charge against Fitzgerald, as opposed to plaintiff’s many verbose, unprotected
complaints about coworkers and supervisors. The Court referenced only a few of those
complaints in this Opinion, but there were many. Fundamentally, a jury could not rationally find
that Kim would scold plaintiff about his discrimination charge against Fitzgerald when Kim was
the one who escalated the charge to the OEA on plaintiff’s behalf. And there is no support in the
record for plaintiff’s argument to the contrary – not even plaintiff’s own testimony.
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Because gradual adverse job actions against plaintiff began before he ever engaged in
protected activity and merely continued after plaintiff’s first protected activity, an inference of
retaliation does not arise. Plaintiff fails to establish the causation element of his prima facie
case. This is fatal to plaintiff’s retaliation claim.
As set forth below, even if plaintiff satisfied his initial burden, his retaliation claim would
fail for lack of pretext.
B. 	Defendants’ Legitimate, Non-Retaliatory Reasons
Assuming for argument’s sake that plaintiff satisfied his initial burden, a presumption of
retaliation arises, and the burden shifts to defendants “to articulate some legitimate, non-
retaliatory reason for” plaintiff’s termination. See Zann Kwan, 737 F.3d at 845 (citation
omitted). Defendants easily meet this burden. According to defendants and as set forth in the
“Background” section of this opinion, plaintiff’s performance was consistently deemed deficient,
beginning from the moment that plaintiff joined the Urology Program and continuing throughout
his tenure. Defendants personally observed these deficiencies in plaintiff’s skills, demeanor, and
receptiveness to criticism, and received many complaints about them. Toward the end of
plaintiff’s employment, Kim asked the chief residents whether plaintiff should be promoted to
senior resident and they all said no. Not only that, the chief residents raised serious concerns
about plaintiff’s historical performance and capacity to improve. On balance, plaintiff’s poor
performance was a legitimate, non-retaliatory reason for his termination.
C. 	Pretext
Because defendants met their burden at step two, “the presumption of retaliation ... drops
from the picture,” and plaintiff, at step three, must show that “retaliation was a ‘but-for’ cause of
the adverse action, and not simply a ‘substantial’ or ‘motivating’ factor in [defendants’]
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decision” to terminate him. Id. at 845-46; accord Giurca v. Bon Secours Charity Health Sys.,
No. 23-200, 2024 WL 763388, at *2 (2d Cir. Feb. 26, 2024) (summary order). “A plaintiff may
prove that retaliation was a but-for cause of an adverse employment action by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered
legitimate, nonretaliatory reasons for its action.” Zann Kwan, 737 F.3d at 846.
As stated before, plaintiff does not distinguish his causation and pretext arguments. After
undertaking the tedious task of pulling these arguments apart, the Court concludes that plaintiff
cannot establish pretext. The Court will address each of plaintiff’s arguments in turn.
First, plaintiff argues that defendants’ stated reasons for his termination are inconsistent
with Berg’s “glowing” recommendation for plaintiff’s application to Harvard Medical School,
which Berg authored six weeks before plaintiff’s termination. Berg’s recommendation is
irrelevant. Whether Berg actually thought that plaintiff was good at his job or was just
embellishing to Harvard to get rid of plaintiff is immaterial. Either way, the content of the
recommendation is hearsay (plaintiff can’t use it to prove that he was good at his job) and Berg’s
opinions and actions have no bearing on Kim and Waltzer’s motivations.
Next, plaintiff points to Waltzer’s March 25, 2024 counseling session with plaintiff, and
flags that Waltzer did not mention the grounds that Waltzer later gave for plaintiff’s termination.
Plaintiff does not explain why this matters – it appears that he just wants the Court to speculate
that something nefarious was afoot. The Court is not going to jump to such conclusions, nor
would it allow a jury to do that. That Waltzer did not discuss the explicit grounds for plaintiff’s
termination in the counseling session is irrelevant. Waltzer could have gone into the meeting
without knowing whether he would eventually terminate plaintiff, and he could have left the
meeting with a reason to do so. Whatever the case, the purported discrepancies between
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Waltzer’s comments at the counseling session and his comments at the time of plaintiff’s
termination don’t have any import.
Next, plaintiff argues that defendants’ stated reasons for plaintiff’s termination are called
into question by Waltzer’s support of plaintiff’s application to Harvard Medical School.
Waltzer’s agreement to support plaintiff’s Harvard Medical School application says nothing
about Waltzer’s motivations or plaintiff’s competence. Waltzer was not, as plaintiff claims,
“championing [p]laintiff’s future at Harvard” – all he said was (and this is a direct quote), “I will
support your application.” And this was just an hour after Waltzer admonished plaintiff over
email for plaintiff’s poor response to their counseling session. A reasonable jury could not
possibly conclude from this evidence that Waltzer’s termination of plaintiff was pretextual – let
alone, that Waltzer thought that plaintiff was a good employee. Rather, a reasonable jury could
only conclude that Waltzer wanted plaintiff gone and would support plaintiff’s application to
Harvard, which may well have been a longshot even with a tepid Waltzer recommendation, or
anywhere else, to effectuate that desire.
Next, plaintiff argues that defendants’ “patient-safety rationale” for plaintiff’s termination
is contradicted by defendants’ actions in continuing to assign critical care duties to plaintiff up to
his termination. Although this may be a troubling revelation for SBUH patients, it is not
evidence that the patient-safety rationale was manufactured. There is overwhelming evidence in
the record of defendants observing issues with and receiving complaints about deficiencies in
plaintiff’s performance that could put patients in danger. For example, defendants learned at a
June 2023 faculty meeting that plaintiff broke an endoscope inside of a patient and that plaintiff
did not treat testicular torsion as an urgent issue. In March 2024, Kim himself observed plaintiff
knock a needle from the sterile field onto the floor and attempt to make an incision prior to
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anesthetizing a patient. Finally, the chief residents – who consistently complained to each other
about plaintiff’s job performance throughout nearly plaintiff’s entire employment – told Kim as
early as January 2024 that promoting plaintiff to senior resident would create patient care
concerns.
Next, plaintiff argues that defendant’s failure to follow SBUH’s disciplinary framework –
which generally provides for probation before termination – or to implement the remediation
efforts identified in the Letter of Warning undercuts their stated reasons for plaintiff’s
termination. The Court disagrees. The Letter of Warning contemplated probation but did not
promise it, and nothing in SBUH’s policies prohibits termination without probation. In fact,
SBUH policy allows for “[t]ermination without prior progressive discipline,” e.g., probation,
“based upon a single significant event or a significant series of unsatisfactory evaluations and
substandard performance.” Plaintiff was repeatedly counseled about his substandard
performance; thus, defendants did not have to give him the benefit of probation. Again,
plaintiff’s record of horrendous performance is just overwhelming, and would preclude a rational
jury from reaching a conclusion that “but for” his protected activity, plaintiff would have been
permitted to continue his residency.
On balance, there is a mountain range of evidence which permits no conclusion other
than that plaintiff was fired for his poor performance and poor receptiveness to feedback – not in
retaliation for any of his protected complaints. Plaintiff is free to refute the well-documented
criticisms of him. But what defendants observed themselves and heard from others is the
information upon which defendants, as plaintiff’s supervisors, had to base their decision-making.
It would be perverse to suggest that plaintiff’s protected activity somehow imposed an
obligation on defendants to sit idly by. If anything, their belief that plaintiff posed a threat to
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patient safety – by virtue of his skills deficiencies and his failure to take responsibility for them –
imposed an obligation on defendants to act. Preemptively making complaints could not, and
should not, insulate him from termination.
* * *
Like his emails, his brief reads as the paranoid ramblings of a person who thinks that
every negative action against him is an injustice. No rational jury would accept that. Plaintiff
fails to establish causation at the prima facie stage and otherwise fails to establish pretext. There
is simply no way that a rational jury could find that retaliation was the but-for cause of plaintiff’s
termination. Therefore, defendants’ motion for summary judgment on the § 1983 retaliation
claim is granted.
III. 	Stigma-Plus Under § 1983
On summary judgment, a plaintiff bringing a stigma-plus claim must show “(1) the
utterance of a statement about h[im] that is injurious to h[is] reputation, that is capable of being
proved false, and that he or []he claims is false, and (2) some tangible and material state-imposed
burden ... in addition to the stigmatizing statement.” See Velez v. Levy, 401 F.3d 75, 87 (2d Cir.
2005) (internal quotation marks and citation omitted).
In the amended complaint, plaintiff alleged that Kim communicated stigmatizing
statements regarding plaintiff to UVA, and that UVA, in turn, rescinded its fellowship offer to
plaintiff. He further alleged that as a result of these stigmatizing statements and others placed in
his personnel file, he was “effectively blacklisted from medical programs throughout the United
States.” This was enough to withstand defendants’ motion to dismiss with respect to Kim.
During discovery, the parties got confirmation that Kim did, in fact, speak to UVA’s
Chair of Urology about plaintiff’s application. Kim testified that he told the UVA Chair that
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plaintiff had been terminated, that they discussed some of the reasons behind it, and that he
probably did mention plaintiff’s performance. When it came to specifics, Kim could not recall
any. Certainly, a jury could infer, from Kim’s lack of memory plus the offer rescission, that Kim
communicated something negative to the UVA Chair (as surely, there were plenty of negative
things that Kim could have communicated).
However, a jury could only speculate that Kim said false things about plaintiff to the
UVA Chair, particularly in light of the many bad-but-true things that Kim could have said that
are in the record. Such speculation is not within the jury’s province. See Patterson v. City of
Utica, 370 F.3d 322, 331 (2d Cir. 2004) (reasoning that “it would have been sheer surmise or
conjecture on the part of the jury to conclude that any public statements, let alone stigmatizing
ones, were made in the course of plaintiff’s termination,” where the plaintiff did not provide
proof of the statements).
Equally importantly, this quandary could have been avoided. The Court held a hearing
on discovery disputes (and on the instant motion) in February. Plaintiff had, among other things,
issued an untimely subpoena to UVA to obtain whatever communications there were between it
and Kim. The Court told plaintiff, “if you get something from UVA and you’re going to use it
on summary judgment, then I might reopen discovery to allow a deposition of the person [from]
UVA.” Plaintiff never deposed or asked to depose the UVA Chair, even though plaintiff knew
by February that Kim’s testimony was unhelpful. Plaintiff has put no evidence before the Court
that would raise an issue of fact as to whether what Kim said to the UVA Chair was false. The
fact of the matter is, Kim could have said any number of bad-but-true things about plaintiff that
would have resulted in UVA rescinding its offer.
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As for the post-termination evaluation that Kim placed in plaintiff’s personnel file, it was
certainly negative, but no jury could conclude that it was fabricated. The evaluation reflected,
among other things, Kim’s assessment that plaintiff had “Unsatisfactory” competence in
interpersonal and communication skills, professionalism, and practice-based learning and
improvement. It also contained Kim’s recommendation (selected from a list of prewritten
recommendations) that plaintiff “ha[d] NOT demonstrated sufficient competence to enter
autonomous practice.” Finally, it contained Kim’s freeform explanation of plaintiff’s
termination:
Dr. El-Ghazaly was terminated from the Urology residency program for multiple
complaints including failure to accept or incorporate formative feedback, a pattern
of disrespect and disruptive communication towards support staff, and not
returning calls/pages in a timely fashion.
Every single thing that Kim said in the post-termination evaluation is borne out by the summary
judgment record, and no rational jury could conclude that this explanation was false.
For these reasons, the Court does not think that the stigma-plus claim is fit for a jury.
That being said, there is a better reason for dismissing this claim: plaintiff has failed to establish
that Kim’s conduct violated a clearly established right, which makes Kim at least entitled to
qualified immunity. See Mudge v. Zugalla, 939 F.3d 72, 81 (2d Cir. 2019).
At most, plaintiff has demonstrated that Kim “interfered with his relationship, actual and
potential, with a single employer,” UVA. See id. “That falls decidedly short of demonstrating
under clearly established law that the [Kim] created a significant roadblock to [plaintiff’s] ability
to practice his profession.” See id. Although plaintiff alleged in his amended complaint that he
was “effectively blacklisted from medical programs throughout the United States,” he has
offered no evidence of this. And UVA’s rescission of its employment offer does not qualify as a
“plus”: this harm was “not in addition to the alleged defamation,” but was rather the “direct
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deleterious effect[] of that defamation.” See Sadallah v. City of Utica, 383 F.3d 34, 39 (2d Cir.
2004) (internal quotation marks and citations omitted).
Furthermore, it was objectively reasonable for Kim to conclude that his conduct –
communicating some negative information about plaintiff to UVA and placing a post-
termination evaluation in plaintiff’s personnel file – was lawful. “[W]ork evaluations are
protected speech,” as are residency training program’s “communications to [medical boards] and
other residency training programs.” See Wang v. State Univ. of New York Health Scis. Ctr. at
Stony Brook, 470 F. Supp. 2d 178, 189 (E.D.N.Y. 2006) (holding that such communications
concerning medical resident’s poor performance were protected under New York libel and
slander law), aff’d, 217 F. App’x 24 (2d Cir. 2007). We can assume that Kim informed UVA
(and perhaps medical boards and other residency programs, although there is no evidence of this)
of his opinion as to plaintiff’s inadequate performance as a Urology resident at SBUH. “[T]his
communication took place between two entities with a common interest: to have well-qualified
medical residents practicing medicine.” Id. Kim had no reason to believe that sharing his
opinions about plaintiff’s competence with UVA or any other medical institution was unlawful.
Indeed, this isn’t a field where an employer can or should just write off issues with a former
employee; there are literally lives at stake.
Lastly, it is undisputed that plaintiff did not pursue an Article 78 proceeding – to which
he was entitled under New York law – in order to clear his name. Under Second Circuit law, “in
[a] case involving an at-will government employee, the availability of an adequate, reasonably
prompt, post-termination name-clearing hearing is sufficient to defeat a stigma-plus claim.”
Segal v. City of New York, 459 F.3d 207, 214 (2d Cir. 2006). This Court must “follow [Segal’s]
logic and mandate, as other lower courts have done,” and hold that “Article 78 proceedings
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provide sufficient procedural protection as post-deprivation name-clearing hearings.” Spang v.
Katonah-Lewisboro Union Free Sch. Dist., 626 F. Supp. 2d 389, 397 (S.D.N.Y. 2009) (collecting
cases). Therefore, plaintiff’s stigma-plus claim must fail “because adequate post-deprivation
remedies were available, and [plaintiff] failed to avail himself of them.” See id.
Plaintiff counters that defendants’ Article 78 argument “imposes an impermissible
‘second hearing’ requirement.” He explains that because he pursued an internal appeal, he
shouldn’t have had to also pursue an Article 78 hearing to protect his due process rights. At the
same time, he contends that the internal appeal process was “wholly inadequate.” Taken
together, plaintiff’s arguments make no sense. If plaintiff believed that the internal appeal
process was “wholly inadequate,” he should have and could have sought an Article 78
proceeding to protect his due process rights. Besides, plaintiff offers no legal basis for his
argument that the Article 78 proceeding amounts to a second hearing requirement, much less an
impermissible one.
Plaintiff’s stigma-plus claim fails on any of several bases, as set forth above.
Accordingly, the Court grants summary judgment to defendants on this claim.
IV. 	Retaliation Under the NYSHRL
Having dismissed all of plaintiff’s federal claims over which the Court has original
jurisdiction, the question becomes whether to retain jurisdiction over plaintiff’s retaliation claim
under the NYSHRL. A district court “may decline to exercise supplemental jurisdiction over a
claim” once it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c). “In determining whether to exercise supplemental jurisdiction, the relevant factors to
be considered are judicial economy, convenience, fairness and comity.” Thomas v. City of New
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York, 953 F. Supp. 2d 444, 462 (E.D.N.Y. 2013) (citing DiLaura v. Power Authority, 982 F.2d
73 (2d Cir. 1992)).
“These factors ... will usually point toward declining to exercise jurisdiction over the
remaining state-law claims when all the federal law claims are eliminated before trial.” Thomas,
953 F. Supp. 2d at 462 (internal quotation marks and citation omitted); accord Lambert v. Trump
Int’l Hotel & Tower, 304 F. Supp. 3d 405, 428 (S.D.N.Y. 2018), aff’d, 615 F. App’x 49 (2d Cir.
2015)). Here, the Court has dismissed the only federal claims in this action.
Additionally, comity separately weighs in favor of declining to exercise supplemental
jurisdiction. Pursuant to the 2019 amendments, the NYSHRL is now aligned with the New York
City Human Rights Law. Edelman v. NYU Langone Health Sys., 141 F.4th 28, 45 n.9 (2d Cir.
2025); Wright v. White Plains Hosp. Med. Ctr., 237 A.D.3d 1143, 1145, 232 N.Y.S.3d 594, 594
(2nd Dep’t 2025). However, because the New York Court of Appeals has yet to settle the
matter, there remains uncertainty among state and federal courts alike as to where the NYSHRL
sits on the spectrum between federal law and city law. See, e.g., Kittle v. Mavis Disc. Tire, Inc.,
No. 24-cv-2537, 2025 WL 2721620, at *11 (E.D.N.Y. Sept. 24, 2025) (“[W]hile courts have not
yet clearly defined the scope of the newly amended NYSHRL, they have generally agreed that
the new retaliation standard is more liberal than the federal standard.” (internal quotation marks
and citation omitted)). Accordingly, “comity counsels against exercising jurisdiction over” a
claim with “a lower threshold of proof than its federal counterparts[,] [that] has been applied
primarily at the intermediate appellate level of the state courts, with limited opportunity for the
New York Court of Appeals to construe it.” Lambert, 304 F. Supp. 3d at 428-49.
The Court has dismissed all federal claims over which it had original jurisdiction, and the
NYSHRL claim that remains is not governed under the same standard as its federal counterpart.
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Accordingly, the Court declines to exercise supplemental jurisdiction over plaintiff’s NYSHRL
claim, which is dismissed without prejudice to refiling in state court.
CONCLUSION
Summary judgment is granted to defendants on plaintiffs’ federal claims. The Court
declines to exercise supplemental jurisdiction over plaintiff’s NYSHRL claim, so that claim is
dismissed without prejudice to refiling in state court. This case is dismissed.
SO ORDERED.
____________________________________________
U.S.D.J.
Dated: Brooklyn, New York
August 30, 2026
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