El-Ghazaly

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

nn nn nn nneeen ne nenennnnnnee X

TAREK EL-GHAZALY, M.D., :

Plaintiff, : MEMORANDUM DECISION AND

: ORDER

- against - :

: 25-cv-3939 (BMC)

JASON KIM, M.D., WAYNE WALTZER, :

M.D., JOHN FITZGERALD, M.D., LORA

DEMPSEY, and ZHENYUE HUANG, M.D., :

Defendants. :

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COGAN, District Judge.

A few months into plaintiff's urology residency at Stony Brook University Hospital

(“SBUH”), the attending physician began making distasteful comments to him about Egyptians

and Arabs. Plaintiff, who is Egyptian, eventually lodged a discrimination complaint with

SBUH’s Office of Equity and to the urology program director. Roughly six months after that,

plaintiff was terminated. Plaintiff now brings discrimination and retaliation claims pursuant to

42 U.S.C. § 1983 and the New York State Human Rights Law (“NYSHRL”). Plaintiff also

brings a § 1983 “stigma-plus” claim based on stigmatizing statements that defendants made

during his termination, which plaintiff says caused his prospective employer to rescind its offer.

Defendants have moved to dismiss the complaint in its entirety: Drs. Jason Kim, Wayne

Waltzer, and Zhenyue Huang together, as the “Current SUNY Defendants,” and Dr. John

Fitzgerald separately.' As discussed below, Huang is dismissed from this action for insufficient

' Lora Dempsey was previously named as a defendant in this case and also moved to dismiss the complaint in its

entirety. Because she has since been terminated from this action, her motion is denied as moot.

service of process; all claims against Fitzgerald are dismissed; the discrimination and stigma-plus

claims against Waltzer are dismissed; and the discrimination claims against Kim are dismissed.

Plaintiff's retaliation claims against Waltzer and Kim and stigma-plus claim against Kim

survive.

SUMMARY OF AMENDED COMPLAINT

Plaintiff Tarek El-Ghazaly, M.D., is an Egyptian and Canadian national who received his

medical education and training in the United States. On November 1, 2022, plaintiff was

recruited as a second-year urology resident at SBUH. During plaintiff's residency, defendant

Kim was the program director, defendant Waltzer was the chair, defendant Fitzgerald was an

attending physician, and defendant Huang was a senior resident/fellow. The former three had

authority over plaintiffs responsibilities, performance evaluations, and employment.

Plaintiff recounts multiple instances where Fitzgerald made distasteful remarks about

Egyptians and Arabs during plaintiff's rotation at the Northport VA Medical Center (“VAMC”).

In March 2023, Fitzgerald asked plaintiff whether he was Egyptian and whether he knew “that

Egyptians would inter-breed.” Seven months later, in October 2023, Fitzgerald told plaintiff

during a procedure that “they don’t use numbing gel” in Egypt because “[t]hey believe the

patient should be punished for having a problem.” The same day, Fitzgerald also said, “Arabs

don’t shower,” and “we should have bombed them after 9/11.” Although the described incidents

happened seven months apart, plaintiff alleges that Fitzgerald made other such remarks about

Egyptians in the months between.

Plaintiff had other issues with Fitzgerald during this time. He disagreed with the way

Fitzgerald approached medical procedures, sometimes voicing his concerns to chief residents and

even Fitzgerald himself. He also disagreed with Fitzgerald’s support for the hiring of Dr.

Allegra Fierro as a urology attending because Fierro had no training in urology. Believing that

Fierro’s incompetence was harming patients, plaintiff eventually sent a letter to his chief

residents titled “Litigation Risk to VA Residents,” which detailed “egregious patterns of medical

misconduct” by Fierro. Fitzgerald came to Fierro’s defense, maintaining that she was a qualified

urology attending. In August 2023, Fierro resigned.

Following Fierro’s resignation, Fitzgerald told plaintiff that he knew that plaintiff had

met with Kim about the Fierro letter and warned, “You understand that whatever I tell [Kim] at

the end of your rotation will determine your future.” He also told plaintiff that he thought

plaintiff's age and experience “ha[d] been a problem,” and that plaintiff “should be demoted.”

On September 29, 2023, Fitzgerald and plaintiff were in the operating room performing a

procedure together. While plaintiff was suturing an incision, Fitzgerald complained that plaintiff

wasn’t holding the needle holder properly. Fitzgerald then used forceps to pinch and twist

plaintiff's finger to the correct angle, hurting plaintiff and ripping plaintiff's gloves in the

process. Fitzgerald said that he did it to “teach him a lesson.”

Plaintiff reported the surgery incident (which he characterized as an “assault and

battery”) and Fitzgerald’s offensive remarks about Egyptians (which he characterized_.as

“bigoted statements”) to Kim on October 29, 2023, and to the Stony Brook Office of Equity

(“Equity Office”) on October 30, 2023. Kim told plaintiff that he was forced to forward his

complaint for further investigation.

After that, plaintiff did a two-month external rotation at Good Samaritan Hospital from

November through December 2023. Plaintiff appears to have worked with Fitzgerald only once

during that time, when Kim scheduled them to be on call together for a weekend in December.

During one of their procedures together, Fitzgerald accused plaintiff of missing an “emergency

case,” an accusation which plaintiff maintains was false. The next day, plaintiff told Kim about

his worry that Fitzgerald was trying to cause him professional harm. Kim warned plaintiff not to

send any more written complaints, saying, “He is the attending and you are the resident. You are

never going to win this.” Although plaintiff finished his rotation at Good Samaritan with

“Exceeds Expectations” marks, Kim told senior residents to prepare to have plaintiff repeat his

third year.

On January 12, 2024, Waltzer and Huang accused plaintiff of ignoring a midnight page.

The next day, plaintiff explained to Huang that he didn’t receive the page until 4 AM and that he

promptly responded at that time. Plaintiff then discovered that it was probably the general

surgery chief resident who made the accusation against him, and informed Huang of the same.

Huang told plaintiff not to go to Waltzer to explain the mistake, as it was “only going to make

things worse,” and assured him that Waltzer “really didn’t care.” However, when plaintiff asked

Huang whether she told Waltzer what really happened, she said, “No.”

Plaintiff thereafter emailed Kim to correct the record, expressing his concern that the

general surgery chief resident was spreading false information about him. In response, Kim

asked plaintiff to meet to discuss his progress. During that meeting, Kim told plaintiff that he

would likely be repeating his third year based on his performance, even though other residents

performed much worse on the in-service exam. He also told plaintiff that there was a “cultural

thing” about the way he spoke.

On February 12, 2024, Kim sent plaintiff a “Letter of Warning.” The letter, which

plaintiff attached to the amended complaint, 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 complaints,

although it did not identify which complaints it encompassed (i.e., medical malpractice versus

discrimination):

Continued insistence that one attending’s negative opinion of you is affecting

your overall evaluations, even though it has been explained multiple times that

this is not the case. Multiple attendings and senior residents have expressed

concerns about your performance. ... Continued insistence hat [sic] this

counselling [sic] is retaliatory in nature due to the previous point. Sending

inappropriately verbose emails about concerns or complaints. The emails are

difficult to read and ineffective as a means of communication.

The letter then set out a plan for improvement and 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. According to

plaintiff, the letter “included numerous falsehoods and misleading quotes.” Kim also gave

plaintiff a verbal warning to never send any more written complaints, threatening, “[T]hese

complaints will sink you, and will be your downfall in this program.”

Over the next several months, plaintiff received praise from numerous attending

physicians regarding his performance, professionalism, and surgical skill. During this time, Kim

acknowledged plaintiff's surgical preparedness but still noted a “cultural issue” with the way he

came across to people. Meanwhile, plaintiff continued lodging complaints — against Huang,

Waltzer, and other physicians for what he perceived as negligent conduct.

On March 15, 2024, Kim called plaintiff to tell him that the Equity Office investigated

his allegations against Fitzgerald and found them to be unsubstantiated; he questioned whether

plaintiff had been lying about what happened. Plaintiff, however, had already received an email

from the Office of Equity a month prior telling him that his allegations against Fitzgerald had

been substantiated. Kim reiterated his intention to stop plaintiff's residency progress based on

his performance then ended the call.

Around this same time, Kim submitted “fake” negative evaluations for plaintiff. Kim

also temporarily blocked plaintiff from completing the “ACGME survey” by having Dempsey

submit false email credentials for plaintiff to the ACGME.

On March 16, 2024, plaintiff sent a seven-page email to Waltzer and Dr. William Berg in

which he “communicat[ed] his concerns about retaliatory actions and fabrications by Kim, a

breach of confidentiality by Dr. Kim regarding a trainee’s medical condition, [and] detailed]

surgical negligence by Dr. Michael Ernst that had led to the loss of a child’s kidney.” Facing

“inaction” (presumably, not receiving a reply), plaintiff sent a ten-page email to the Graduate

Medical Education Office on April 8, 2024 “with concerns about a dangerous situation at SBUH,

retaliatory action and affinity bias by Dr. Jason Kim, ... and detailing how Dr. Kim knowingly

allowed for an unqualified Dr. Fierro to independently supervise residents despite her lack of

urology training.” Plaintiff was fired on April 17, 2024.

In April 2025, plaintiff secured a fellowship at the University of Virginia (“UVA”).

Later that month, UVA rescinded its offer, citing “board ineligibility” at first, then “lack of

transparency during the interview process.” Plaintiff believes that Kim and SBUH staff

communicated stigmatizing statements regarding his professional competence, ethics, and fitness

to UVA’s risk assessment/credentialing personnel. Plaintiff further believes that defendants have

since provided adverse information to the Virginia Board of Medicine, hospital medical staff

officers, background check companies, and credentialing bodies, effectively blacklisting him

from medical programs throughout the United States.

? The ACGME appears to be the Accreditation Council for Graduation Medical Education

Plaintiff brings five causes of action against defendants in their individual capacities for

racial discrimination and retaliation under § 1983 and the NYSHRL, and for violation of his

procedural due process rights under § 1983 pursuant to the stigma-plus doctrine.

DISCUSSION

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.

344, 570 (2007), and to “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When

deciding a motion to dismiss, the Court must “constru[e] the complaint liberally, accept{] all

factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff's

favor.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All.

LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)).

Additionally, “[bJefore a federal court may exercise personal jurisdiction over a

defendant, the procedural requirement of service of summons must be satisfied.” Dynegy

Midstream Servs. v. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006) (quoting Omni Capital Int’|,

Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). “Therefore, to survive a motion to

dismiss based on lack of personal jurisdiction and insufficient service of process, the plaintiff

must demonstrate that [Jhe adequately served the defendants.” Buon v. Spindler, 65 F.4th 64, 73

(2d Cir, 2023).

I. Service on Huang

The Current SUNY Defendants argue that this court lacks personal jurisdiction over

Huang because plaintiff failed to properly serve her. Consistent with Huang’s sworn declaration,

the Current SUNY Defendants explain that plaintiff attempted to serve Huang by delivering the

summons and complaint to an employee of the Risk Management for University Faculty Practice

Corporation (“UFPC”), even though Huang is not, and has never been, jointly employed by

SUNY and UFPC and did not authorize anyone at UFPC to accept service on her behalf.

Plaintiff does not contest these facts. In fact, plaintiff makes no effort at all to

demonstrate that he adequately served Huang. Instead, plaintiff argues that Huang “waived any

technical objection to the form of service” by appearing through the Attorney General and

seeking merits relief under Rule 12(b)(6). It is true that an objection to defective service can be

waived “by submission through conduct,” where the defendant had “actual knowledge of a suit

coupled with extensive participation in pretrial proceedings.” LPD New York, LLC v. Adidas

Am., Inc., No. 15-cv-6360, 2021 WL 5139252, at *2-3 (E.D.N.Y. Nov. 4, 2021) (collecting

cases). However, “[s]imply filing an appearance is insufficient to constitute waiver,” Gore v.

RBA Grp., Inc., No. 03-cv-9442, 2009 WL 884565, at *5 (S.D.N.Y. Mar. 27, 2009), particularly

for a state employee who automatically receives state representation. In addition, there is no

reason why a defendant cannot seek dismissal of an action for failure to state a claim and for

insufficient service of process — that is, on alternative bases. Anyone who knows the phrase

“assuming arguendo” understands that presenting a fallback argument does not concede the

primary one. Huang is therefore dismissed for lack of personal jurisdiction due to insufficient

service of process.

Even if service is a “fixable” issue (and even if that mattered), the Court would not

extend plaintiff's time to serve Huang beyond the 90 days permitted by Rule 4(m) (it has been

four months since the amended complaint was filed) because plaintiff has not and cannot show

good cause for his failure to properly serve Huang. A “delay in service resulting from the mere

inadvertence, neglect, or mistake of a litigant’s attorney does not constitute good cause.”

Oyewole v. Ora, 291 F. Supp. 3d 422, 430 (S.D.N.Y. 2018), aff'd, 776 F. App’x 42 (2d Cir.

2019) (quoting George v. Prof’! Disposables Int’l, Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y.

2016)). Huang first challenged service (albeit, of the original complaint) in August 2025 in the

parties’ joint letter for the initial status conference. But plaintiff did not then attempt to properly

serve Huang. Huang challenged service again (now of the amended complaint) in her October

2025 motion to dismiss. Again, however, plaintiff did not attempt to properly serve Huang.

Plaintiff has not shown good cause for his failure to serve Huang, and, on this record, it doesn’t

seem like he could.

Il. Substitution of Fitzgerald Under the Westfall Act

For the first time on reply, Fitzgerald argues that plaintiff's allegations against him

concern his employment with the federal government at the VAMC, so all causes of action

against him “must be dismissed for lack of subject matter jurisdiction under [the] Westfall Act.”

“The Westfall Act, 28 U.S.C. § 2679, permits the United States, in certain circumstances, to be

substituted as a party in a lawsuit against a federal employee alleging that the employee

committed tortious conduct in the course of his employment.” Carroll v. Trump, 148 F.4th 110,

114-15 (2d Cir. 2025). For actions initiated in federal court, the statute provides the following

avenue for substitution:

Upon certification by the Attorney General that the defendant employee was

acting within the scope of his office or employment at the time of the incident out

of which the claim arose, any civil action or proceeding commenced upon such

claim in a United States district court shall be deemed an action against the United

States under the provisions of this title and all references thereto, and the United

- States shall be substituted as the party defendant.

Id. (quoting 28 U.S.C. § 2679(d)(1)). Although substitution under § 2679(d)(1) is contingent

upon certification by the Attorney General, § 2679(d)(3) permits an employee to, “[i]n the event

that the Attorney General has refused to certify scope of office or employment under this section,

... petition the court to find and certify that the employee was acting within the scope of his

office or employment.” Id. (quoting 28 U.S.C. § 2679(d)(3)).

Setting aside the impropriety of Fitzgerald raising a new argument on reply, the Court

denies Fitzgerald’s request for Westfall substitution because the Attorney General has not

provided certification — barring application of § 2679(d)(1) — and because the Attorney General

has not refused certification — barring application of § 2679(d)(3). Fitzgerald says only that

counsel is “in the process of requesting that the Department of Justice provide Westfall

certification” and that the Court can make a judicial scope determination in the meantime. But

the Westfall Act does not expressly permit the Court to substitute the federal government as a

defendant without its consent or refusal, and Fitzgerald does not point to any caselaw saying

otherwise. For these reasons, the Court declines to dismiss Fitzgerald on Westfall Act grounds.

II. Discrimination Claims

Section 1981 “outlaws discrimination with respect to the enjoyment of benefits,

privileges, terms, and conditions of a contractual relationship, such as employment.” Patterson

v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). Section 1983, by contrast, “isnot -

itself a source of substantive rights,” but rather provides “‘a method for vindicating federal rights

elsewhere conferred,” such as those conferred by § 1981.” Id. (quoting Baker v. McCollan, 443

U.S. 137, 144 n.3 (1979)). “[T]he express cause of action for damages created by § 1983

constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state

[actors].” See Duplan v. City of N.Y., 888 F.3d 612, 619, 621 (2d Cir. 2018) (emphasis omitted) □

(quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)). Appropriately, plaintiff

locates his right to relief for defendants’ § 1981 violations in § 1983. The Court thus analyzes

plaintiff's federal discrimination claims under § 1983. See Gladwin v. Pozzi, 403 F. App’x 603,

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605 (2d Cir. 2010); In re N.Y. City Dep’t of Educ., No. 15-cv-7150, 2019 WL 1433163, at *5-6

(S.D.N.Y. Mar. 29, 2019) (construing the plaintiffs’ § 1981 discrimination claims as causes of

action brought under § 1983).

To maintain a § 1983 action, the conduct complained of must have (1) “been committed

by a person acting under color of state law” and (2) “deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United States.” Pitchell v. Callan, 13 F.3d

545, 547 (2d Cir. 1994). Kim and Waltzer do not challenge their status as state actors and, as

employees of a public institution, probably can’t. See Jones v. Nickens, 961 F. Supp. 2d 475,

485-86 (E.D.N.Y. 2013) (“[SBUH] is a public institution. Accordingly, the Hospital and its

employees are state actors for purposes of Section 1983.”). Fitzgerald, on the other hand,

challenges his state-actor status, arguing that plaintiff's allegations against him concern his

federal employment at VAMC, not his separate state employment at SBUH. Plaintiff has alleged

and Fitzgerald has admitted that Fitzgerald was a urology attending at SBUH during the relevant

time period. That’s enough to establish that Fitzgerald was acting under color of state law at the

pleading stage. See id.

To satisfy the second factor at the pleadings stage, a plaintiff “must plausibly allege that

(1) the [defendants] took adverse action against him, and (2) his race, color, religion, sex, or

national origin was a motivating factor in the employment decision.” See Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015). Plaintiff's allegations against Waltzer,

Kim, and Fitzgerald miss the mark.

Plaintiff homes in on two allegations in support of plaintiff's discrimination claims

against Waltzer: that Waltzer “failed to take protective action and allowed continued exposure to

[Fitzgerald],” and that Waltzer received an email from plaintiff on March 16, 2024, before

11

plaintiff's termination which detailed plaintiff's concerns about “retaliatory actions and

fabrications by Kim.” These allegations don’t get plaintiff anywhere. Among other reasons,

neither allegation ties Waltzer’s purported wrongful conduct to a discriminatory motivation.>

Plaintiff does not plead, in even conclusory terms, that Waltzer took any action against him

because of his race or national origin. Further, plaintiff does not plead facts supporting an

inference that Waltzer’s non-response to or “acquiescence” in others’ purportedly discriminatory

conduct was because of plaintiff’s race or national origin. See Saunders v. New York

Convention Ctr. Operating Corp., No. 20-cv-5805, 2022 WL 3577773, at *7 (S.D.N.Y. Aug. 19,

2022).

Although the 201-paragraph amended complaint is rife with accusations against Kim,

nowhere does it allege, in non-conclusory terms, that plaintiff's race or national origin was a

motivating factor in any adverse employment action that Kim took against him. See Durand v.

Excelsior Care Grp. LLC, No. 19-cv-2810, 2020 WL 7246437, at *5 (E.D.N.Y. Dec. 9, 2020)

(“Naked assertions of discrimination without any specific allegation of a causal link between the

defendants’ conduct and the plaintiff's membership in a protected class, are too conclusory to

withstand a motion to dismiss.” (cleaned up) (citation omitted)). The allegation that Kim once or

twice referenced a “cultural thing” about the way plaintiff spoke is too ambiguous to color Kim’s

actions discriminatory. See Haynes v. Capital One Bank, No. 14-cv-6551, 2015 WL 2213726, at

*2 (E.D.N.Y. May 8, 2015) (dismissing race discrimination claim where, “aside from one

ambiguous remark made by her branch manager,” the plaintiff “fail[ed] to allege any facts that

3 The Court uses the phrase “wrongful conduct” as opposed to “adverse actions” because plaintiff does not allege

that these incidents constitute adverse actions — and, in fact, they probably don’t.

12

suggest[ed] her termination or any other adverse employment actions were connected to her

race”).*

Finally, with respect to Fitzgerald, “that [p]laintiff[] allege[s] a stew of discriminatory

animus does not impart flavor to every disciplinary action taken against [p]laintiff[] and thereby

transform those actions, even if unjustified, into discriminatory adverse employment actions.”

See Fukelman v. Delta Air Lines, Inc., No. 18-cv-00002, 2020 WL 2781662, at *3 (E.D.N.Y.

May 29, 2020). Fitzgerald’s offensive comments to plaintiff about Egyptians and Arabs could,

theoretically, give Fitzgerald’s actions against plaintiff a discriminatory “flavor.> But plaintiff

rules out that possibility with his own allegations. Plaintiff alleges that Fitzgerald threatened him

after he made his complaint about Fierro (that is, because of plaintiff's complaint about Fierro),

and that Fitzgerald pointed to plaintiff's “age and experience” — not race or national origin — as a

problem. And plaintiff alleges that Fitzgerald twisted his finger with forceps to “teach him a

lesson,” not to harm plaintiff because he is Egyptian. Finally, plaintiff alleges that Fitzgerald

falsely accused plaintiff of missing an “emergency case” during a procedure in order to cause

him professional harm, but he does not say that Fitzgerald had a discriminatory motive in doing

so; and besides, “without sufficient facts, even the most sincerely held beliefs do not comprise a

sufficient basis for withstanding a 12(b)(6) attack.” Williams v. Wellness Med. Care, P.C., No.

1 1-cv-5566, 2013 WL 5420985, at *6 (S.D.N.Y. Sept. 27, 2013).

Fitzgerald’s comments to plaintiff about Egyptians and Arabs were offensive. But under

§ 1983, that’s not enough — even at the pleading stage. Plaintiff has to allege that his race or

4 Absent any allegation of discriminatory animus, plaintiff’s allegations that Kim “threatened” plaintiff about his

written complaints and “falsely” told plaintiff that his allegations against Fitzgerald were unsubstantiated are

irrelevant to the Court’s analysis of the discrimination claims.

For purposes of the analysis that follows, the Court assumes without deciding that Fitzgerald’s alleged actions

against plaintiff — the verbal warning, the forceps incident, and the accusation about missing an “emergency case” —

were adverse actions.

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national origin was a motivating factor behind some adverse action that Fitzgerald took against

him. Plaintiff doesn’t do that, so his § 1983 discrimination claim against Fitzgerald must fail.

Plaintiff's discrimination claims against Waltzer, Kim, and Fitzgerald fail also under the

more lenient NYSHRL pleading standard which, under its most liberal formulation, requires only

that a plaintiff allege that he has been “treated less well at least in part because of” his

membership in a protected class. See Pullman v. Collins, No. 24-cv-1383, 2025 WL 2673807, at

*14-15 (S.D.N.Y. Sept. 18, 2025). Plaintiff's allegations are insufficient to infer that he was

treated less well because he is Egyptian.

IV. Retaliation Claims

“[F]or a retaliation claim under § 1983 to survive ... a motion to dismiss, the plaintiff

must plausibly allege that: (1) defendants acted under the color of state law, (2) defendants took

adverse employment action against him, (3) because he complained of or otherwise opposed

discrimination.”® Vega, 801 F.3d at 91. “[F]or an adverse retaliatory action to be ‘because’ a

plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’

cause of the employer’s adverse action.” Id. at 90. Under the “more lenient” NYSHRL pleading

standard, a plaintiff can survive a motion to dismiss if he “show/[s] that something happened that

was reasonably likely to deter a person from engaging in protected activity.” Moore v.

Hadestown Broadway Ltd. Liab. Co., 722 F. Supp. 3d 229, 247 (S.D.N.Y. 2024) (citation

omitted).

Both parties evaluate plaintiff's federal retaliation claims under § 1981. However, as explained before with respect

to plaintiff's federal discrimination claims, “the express cause of action for damages created by § 1983 constitutes

the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state [actors].” See Duplan, 888

F.3d at 619, 621 (quoting Jett, 491 U.S. at 733). The Court thus analyzes plaintiff’s federal retaliation claims under

§ 1983. See In re N.Y. City Dep’t of Educ., 2019 WL 1433163, at *10 (construing the plaintiffs’ § 1981 retaliation

claims as causes of action brought under § 1983).

14

Plaintiff fails to plead retaliation claims against Fitzgerald. Plaintiff made his

discrimination complaints to the Equity Office and Kim at the end of October 2023. The bulk of

Fitzgerald’s purported wrongful conduct towards plaintiff — the offensive comments, the forceps

incident, the entire Fierro debacle — happened before plaintiff filed his complaints. Plaintiff

points to only one negative incident with Fitzgerald after plaintiff filed his discrimination

complaints: that Fitzgerald falsely accused him of missing an “emergency case” during a

procedure. But there are no allegations in the amended complaint suggesting that Fitzgerald

made this accusation because of plaintiff's protected activity, nor is it apparent to the Court how

this trivial incident would deter a person from engaging in protected activity. And, as stated

before with respect to plaintiffs discrimination claims, whether plaintiff believed that Fitzgerald

was trying to cause him professional harm with this accusation is irrelevant. See Williams, 2013

WL 5420985, at *6.

Plaintiff's retaliation claims against Waltzer and Kim just barely survive. Kim received a

discrimination complaint from plaintiff in October 2023, and both Kim and Waltzer learned

about plaintiff's discrimination complaint to the Equity Office at least as early as March 2024.’

Plaintiff was ultimately terminated in April 2024 with a letter that both Waltzer and Kim signed.

Accordingly, plaintiff argues that he was terminated because of his discrimination complaints.

With respect to Waltzer, the fact that the termination followed close in time to Waltzer learning

about plaintiff's discrimination complaint to the Equity Office is just enough to plead but-for

causation. See Gilbert v. Stony Brook Univ., No. 21-cv-2273, 2022 WL 409716, at *10

(E.D.N.Y. Feb. 10, 2022). By contrast, Kim received a discrimination complaint directly from

plaintiff almost six months before the termination, which might be too great a gap. See

7 At this stage, the Court is treating the October 29, 2023 complaint to Kim as protected activity because defendants

have not argued otherwise.

15

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.2010) (“Though this Court has

not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond

which a temporal relationship is too attenuated to establish causation, we have previously held

that five months is not too long to find the causal relationship.”). However, viewed in the

context of plaintiff's other allegations against Kim — that he scheduled plaintiff to be on call with

Fitzgerald for a weekend in December 2023 (less than two months after plaintiffs discrimination

complaint); that he sought to arrest plaintiff's residency progress in December 2023 even though

plaintiff was performing well during his external rotation; and that he mentioned plaintiffs

“complaints” in the February 2024 Letter of Warning — it is at least plausible that Kim

terminated plaintiff because of his discrimination complaints.

To be sure, the Court doesn’t find plaintiff's story very convincing. Plaintiff has

voluntarily provided the Court with several of the key documents in this case (e.g., plaintiff's

rambling complaints to supervisors, the biting Letter of Warning and termination letter) and

frankly, they don’t look good for plaintiff. Rather, they make it seem like plaintiff was a difficult

person with whom to get along. Even plaintiff's allegations suggest a number of potentially

legitimate, non-retaliatory reasons for his termination. However, at the pleading stage, the Court

cannot weigh the evidence. Plaintiff’s § 1983 and NYSHRL retaliation claims against Waltzer

and Kim survive defendants’ motions to dismiss.

V. Stigma-Plus Claim

A stigma-plus claim “requires a plaintiff to allege (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.” Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (internal quotation marks

16

and citation omitted). “[T]he ‘plus’ imposed by the defendant must be a specific and adverse

action clearly restricting the plaintiff's liberty.” Id.

Here, plaintiff alleges that “SBU staff’ and “Dr. Kim (and/or those acting with him)

communicated stigmatizing statements regarding [p]laintiff’s professional competence, ethics,

and fitness to practice to UVA’s Risk Assessment/Credentialing personnel,” and that UVA

rescinded his fellowship offer for “lack of transparency during the interview process, reflecting

reliance on [d]efendants’ stigmatizing publications.” With respect to Kim, these allegations are

sufficient at the pleading stage, just barely; with respect to Waltzer and Fitzgerald, they are not.

Plaintiff cannot attribute personal involvement to Waltzer and Fitzgerald in the alternative (i.e.,

“and/or those acting with [Kim]”) without alleging any facts that would support such a scenario.

Defendants’ only other argument against the stigma-plus claim is that plaintiff had an

opportunity for an “Article 78 name-clearing proceeding” as a state employee. See Piccoli v.

Yonkers Bd. of Educ., No. 08-cv-8344, 2009 WL 4794130, at *5 (S.D.N.Y. Dec. 11, 2009)

(New York CPLR Article 78 “allows a dismissed municipal employee an avenue for challenging

his termination as arbitrary and capricious and contrary to law.” (citation omitted)). The

availability of a post-termination name-clearing proceeding can defeat a stigma-plus claim.

Segal v. City of New York, 459 F.3d 207, 212-14 (2d Cir. 2006); Piccoli, 2009 WL 4794130, at

*5 (collecting cases). However, accepting plaintiff's allegations as true, a post-termination

name-clearing proceeding was not available to him: he “requested name-clearing, but

[d]efendants refused.” The theoretical availability of such a hearing will not defeat his claim.

Therefore, plaintiff's stigma-plus claim against Kim survives.

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CONCLUSION

For the foregoing reasons, Huang is dismissed from this action for insufficient service of

process; all claims against Fitzgerald are dismissed; the discrimination and stigma-plus claims

against Waltzer are dismissed; and the discrimination claims against Kim are dismissed.

Plaintiff's retaliation claims against Waltzer and Kim and stigma-plus claim against Kim

survive.

SO ORDERED.

fo

US.D.J.

Dated: Brooklyn, New York

January 14, 2026

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