23-7679-cv Hernandez v. Kwiat Eye and Laser Surgery, PLLC
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of December, two thousand twenty-four.
Present: ROBERT D. SACK, WILLIAM J. NARDINI, EUNICE C. LEE Circuit Judges, _____________________________________
SONIA HERNANDEZ, Plaintiff-Appellant,
v. 23-7679-cv
KWIAT EYE AND LASER SURGERY, PLLC, and DAVID M. KWIAT, M.D., Defendant-Appellees. _____________________________________
For Plaintiff-Appellant: Harvey P. Sanders, Sanders & Sanders, Cheektowaga, NY.
For Defendants-Appellees: Scott P. Quesnel, Girvin & Ferlazzo, P.C., Albany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Frederick J. Scullin, Jr., District Judge).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the October 20, 2023, judgment of the district court is AFFIRMED.
Plaintiff-Appellant Sonia Hernandez appeals from a judgment of the United States District
Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge), granting
summary judgment in favor of her former employer, Defendant-Appellees Kwiat Eye and Laser
Surgery, PLLC, and its owner Dr. David M. Kwiat (collectively, the “Appellees” or “Kwiat Eye”). 1
Hernandez, an ophthalmologist, brought this lawsuit after she was fired by Kwiat Eye in April
2018. The district court rejected her claims of age, sex, race and national origin discrimination,
as well as claims of retaliation, tortious interference with contract, tortious interference with a
prospective business relationship, and breach of contract. For the reasons that follow, we
conclude that summary judgment was warranted on all claims and, accordingly, affirm. We
assume the parties’ familiarity with the case.
We review orders granting summary judgment de novo after construing all the evidence,
and drawing all reasonable inferences, in favor of the non-moving party. See Rupp v. Buffalo,
91 F.4th 623, 634 (2d Cir. 2024). That means that in employment discrimination cases such as
this “[w]here summary judgment was granted for the employer, we must take the facts alleged by
the employee to be true.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). 2
When there is no direct evidence of discrimination, claims of age, sex, race and national
origin discrimination (including associated claims of retaliation) under Title VII of the Civil Rights
1 Kwiat Eye’s motion for summary judgment was denied with respect to Appellant Hernandez’s breach- of-contract claim relating to performance incentive compensation. See Appendix 20 ¶¶ 49—51. The parties settled this claim prior to this appeal. See Appendix 9, Dist. Ct. Dkt. #72—73. 2 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitted.
2 Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment Act
of 1967 (“ADEA”), 29 U.S.C. §§ 621, et seq., and the New York State Human Rights Law,
NYSHRL § 296, are each subject to the McDonnell Douglas burden-shifting analysis. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 105-06 (2d Cir. 2010) (applying McDonnell Douglas to examine ADEA and
NYSHRL claims); Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (same for Title
VII race and national origin discrimination claims); Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-
75 (2d Cir. 2016) (same for Title VII sex discrimination claims); Reed v. A.W. Lawrence & Co.,
95 F.3d 1170, 1178 (2d Cir. 1996), and Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465
(2d Cir. 1997) (applying McDonnell Douglas to retaliation claims under the ADEA). Under this
framework, if the plaintiff establishes a prima facie case of discrimination, the defendant must
then articulate a legitimate, non-discriminatory reason for its action. See Gorzynski, 596 F.3d at
106. If the defendant provides such a reason, the plaintiff must then come forward with evidence
“that would be sufficient to permit a rational finder of fact to infer that the employer’s employment
decision was more likely than not based in whole or in part on discrimination.” Kirkland v.
Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014).
I. Discrimination Claims
To establish a prima facie case for either age, sex, or race and national origin
discrimination, Hernandez must show that: (1) she is a member of a protected group; (2) she was
qualified for her position at the time of termination; (3) she experienced an adverse employment
action; and (4) the action occurred under circumstances giving rise to an inference of
discrimination. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129
3 (2d Cir. 2012). The parties do not dispute that in each instance of alleged discrimination,
Hernandez was a member of a protected class and experienced an adverse employment action
when she was fired. The parties instead focus their contentions on whether Hernandez was
qualified for her position at the time she was fired, and whether that firing occurred under
circumstances giving rise to an inference of discrimination. We need not reach the merits of the
latter, because we agree with the district court’s conclusion that Hernandez was not qualified for
her position when her employment was terminated.
“At the summary judgment stage, a plaintiff may satisfy [the job qualification] burden by
showing that she possesses the basic skills necessary for performance of the job.” Robinson v.
Concentra Health Servs., 781 F.3d 42, 45 (2d Cir. 2015). We have held that “being ‘qualified’
refers to the criteria the employer has specified for the position.” Thornley v. Penton Publ’g, Inc.,
104 F.3d 26, 29 (2d Cir. 1997). Hernandez challenges the district court’s conclusion that Kwiat
Eye had cause to immediately terminate her employment after she failed to obtain approval to act
as a provider for Fidelis—a health insurer that has a contract with the New York State Department
of Health to provide for the health care needs of people in New York through Medicaid.
Under the terms of the employment agreement Hernandez signed with Kwiat Eye in
January 2016, Hernandez agreed to “be a participating ophthalmologist in, and accept assignment
for payment under the Medicaid and Medicare programs[.]” Appendix 35 § 1.2. Fidelis is one
of the four core Medicaid- or Medicare-associated health insurance programs with which Kwiat
Eye conducts business, as is Excellus BlueCross BlueShield (“Excellus”), from which Hernandez
also failed to obtain approval to act as a participating medical provider. Dr. Kwiat explained in
an affidavit that he hired Hernandez with the expectation that she would gain approval to become
4 a provider for the insurance companies working with Kwiat Eye—specifically, Fidelis. Appendix
329-30 ¶ 14. Section 1.4 of the parties’ employment agreement provides that for Hernandez to
retain her employment, she could not be “excluded from or sanctioned by any federal or state
health care program[.]” Appendix 35 § 1.4. Appellant Kwiat Eye reserved the right to terminate
Hernandez’s employment for “failure of any of the conditions precedent under Paragraph 1 of [the]
Agreement,” or “imposition of any sanctions, including exclusion, suspension, or other limitation,
relating to [Hernandez’s] Medicare or Medicaid participation[.]” Appendix 40 §§ 10.3, 10.4.
There is no dispute that as of her employment termination in April 2018, Hernandez had been
denied accreditation as a participating provider by both Fidelis and Excellus, and she had not been
accredited by any other Medicare or Medicaid program. Accordingly, she had failed to become
a participating ophthalmologist under the federal programs as required by Paragraph 1.2 of her
employment agreement, and indeed had been excluded from participation in them in violation of
Paragraph 1.4. Because the undisputed facts show that Hernandez failed to comply with her
employment agreement, we conclude that she did not establish her qualification for her position.
Without this showing, Hernandez cannot make out a prima facie case for age, sex, race or national
origin discrimination under Title VII, the ADEA, or the NYSHRL.
II. Retaliation
Next, Hernandez calls on this Court to vacate the district court’s grant of summary
judgment in favor of Kwiat Eye on her claim that her firing was a form of unlawful retaliation for
her complaints about a hostile work environment. Vacatur is unwarranted, however, because
Hernandez does not dispute that she did not report the alleged instances of harassment to Dr. Kwiat
or any responsible corporate official.
5 “To make out a prima facie case of retaliation, a plaintiff must make four showings: that
(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the
employer took adverse employment action against her; and (4) a causal connection exists between
the alleged adverse action and the protected activity.” Summa v. Hofstra Univ., 708 F.3d 115,
125 (2d Cir. 2013). The phrase “protected activity” refers to action taken in protest of or
opposition to statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see also Wimmer v.
Suffolk Cnty. Police Dept., 176 F.3d 125, 134-35 (2d Cir. 1999) (discussing the scope of protected
activity under 42 U.S.C. § 2000e-3). Opposition to a Title VII violation need not rise to the level
of a formal complaint to receive statutory protection and includes activities such as “making
complaints to management, writing critical letters to customers, protesting against discrimination
by industry or by society in general, and expressing support of co-workers who have filed formal
charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). “[I]mplicit in the
requirement that the employer [was] aware of the protected activity is the requirement that [the
employer] understood, or could reasonably have understood, that the plaintiff’s opposition was
directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,
136 F.3d 276, 292 (2d Cir. 1998).
Here, Hernandez claims that her protected activities included making workplace
complaints to Mikala Foster, a licensed practical nurse who served as the clinical director at Kwiat
Eye, about offensive, sex-based comments that Dr. Kwiat made in 2016, 2017, and 2018.
Although the district court found that Hernandez’s complaints to Foster concerning Dr. Kwiat’s
statements constituted protected activity, it nevertheless concluded that Hernandez had failed to
make out a prima facie case for retaliation because she could not establish that Dr. Kwiat himself
6 was aware of those complaints. Hernandez points to no evidence suggesting that Dr. Kwiat had
such knowledge. Instead, Hernandez argues that it was enough for her to have reported her
complaints to Foster, because this established general corporate knowledge of her complaints.
See Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 844 (2d Cir. 2013) (“[F]or purposes of a
prima facie case, a plaintiff may rely on general corporate knowledge of her protected activity to
establish the knowledge prong of the prima facie case.”). But this contention is foreclosed by
Hernandez’s express admission in her Local Rule 56.1 Statement of Material Facts that she did
not dispute the following: “Under Kwiat Eye’s policies, Ms. Foster was not designated as a person
who could receive or respond to complaints of discrimination or harassment in the workplace.”
Appendix 84 ¶ 99, 668 ¶ 99.
Because Hernandez’s prima facie case of retaliation founders on her inability to support a
showing of this second element concerning Kwiat Eye’s awareness of her protected activity, we
need not determine whether she satisfied the remaining elements of her case to conclude that
summary judgment was properly granted for Kwiat Eye on this claim.
III. Tortious Interference with Contract and Business Relations
Hernandez makes three challenges to the district court’s ruling on her tortious interference
with contract and business relations claims. First, Hernandez avers that the district court
erroneously concluded that the job she says she lost because of the Appellees’ refusal to complete
a professional evaluation form was only a “prospective job offer.” Second, Hernandez challenges
the district court’s conclusion that she failed to put forth the requisite showing that a third party
would have entered a contractual relationship with her but for the tortious acts of the Appellees.
And third, she challenges the district court’s finding that there was no admissible evidence that the
7 Appellees tortiously interfered with her business relations by delaying their response to
professional inquiries from Hernandez’s prospective employers. This Court agrees with the
district court’s conclusions on each issue.
Under New York law, “[t]ortious interference with contract requires [1] the existence of a
valid contract between the plaintiff and a third party, [2] defendant’s knowledge of that contract,
[3] defendant’s intentional procurement of the third-party’s breach of contract without
justification, [4] actual breach of contract, and [5] damages resulting therefrom.” Lama Holding
Co. v. Smith Barney, 88 N.Y.2d 413, 424 (1996).
Here, Hernandez has not shown the existence of a valid contract between her and a
prospective employer. Specifically, Hernandez’s factual assertions are devoid of any mention of
the material terms of any contract to which she or a prospective employer agreed. Nonetheless,
Hernandez argues that the district court wrongly excluded the possibility that a verbal contract was
formed between Hernandez and two potential employers in Texas, both of which required
completion of a professional evaluation form by Kwiat Eye. She claims that her affidavit alone,
which alleges that job offers were made, is enough to create a genuine dispute of fact on the
question of whether a contract existed. But under New York law, absent additional factual
allegations describing the “formation of the contract, the date it took place, and the contract’s
major terms,” a complaint fails to plead the existence of a contract. Valley Lane Indus. Co. v.
Victoria’s Secret Direct Brand Mgmt., LLC, 455 F. App’x 102, 104 (2d Cir. 2013).
Therefore, Hernandez’s second challenge concerning the specific claim of the Appellees’
alleged tortious interference with contract fails because she has not shown that a valid contract was
formed with or promised by a prospective employer. Nor has Hernandez put forth any
8 nonconclusory assertions or evidence that would support a showing of the second and third
elements of tortious contractual interference—that is, the Appellees’ knowledge of a specific
contract and how exactly the Appellees intentionally procured a third party’s breach of this
unspecified contract.
As to Hernandez’s third challenge, under New York law, to sustain a claim for tortious
interference with business relations, a plaintiff must show that she: (1) had business relations with
a third party; (2) the defendant interfered with those business relations; (3) the defendant acted for
a wrongful purpose or used dishonest, unfair, or improper means; and (4) the defendant’s acts
injured the relationship. See 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 261, (2d Cir. 2015).
First, it is not clear what specific business relationship Hernandez had established with a third
party without the demonstrated existence of an underlying contract, the rendering of any services,
or the promise of future employment. But even assuming a business relationship existed between
Hernandez and a prospective employer that could have been interfered with by the Appellees,
Hernandez does not present evidence to sustain a showing of actual interference. At best,
Hernandez claims that the Appellees delayed their response to employment verification inquiries
by prospective employers, and that this delay, in turn, compromised Hernandez’s chance to swiftly
apply for a Texas medical license or apply for jobs at medical practices in Texas. Even if true,
this allegation is insufficient to survive summary judgment. In New York, “a defendant’s conduct
must amount to a crime or an independent tort” in order to amount to tortious interference with a
prospective economic advantage. Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190 (2004). And so,
“[c]onduct that is not criminal or tortious will generally be lawful and thus insufficiently culpable
to create liability for interference with prospective contracts or other nonbinding economic
9 relations.” Id. Hernandez does not cite a case or statute to support the claim that the Appellees’
failure to promptly complete professional evaluation forms violated any obligation by the
Appellees to assist Hernandez in finding follow-on employment after her termination. Because
Hernandez’s allegations taken as true would not show actual interference by the Appellees in her
business relations, she cannot satisfy the requisite elements to support her tortious-interference
claim.
IV. Breach of Contract
Finally, Hernandez argues that the Appellees breached the parties’ employment agreement
by terminating her employment without providing her 180 days of advance notice and failing to
pay her for unused vacation time. We are unpersuaded.
To sustain a breach-of-contract claim under New York law, a plaintiff must show: (1) a
valid contract; (2) adequate performance of the contract by the plaintiff; (3) breach of contract by
the defendant; and (4) damages. See Eternity Glob. Master Fund Ltd. v. Morgan Guar. Trust Co.
of N.Y., 375 F.3d 168, 177 (2d Cir. 2004). First turning to Hernandez’s claim that she was not
provided advance notice of her termination, her employment agreement provided Kwiat Eye the
right to terminate her employment “immediately” if she failed to comply with “the conditions
precedent under Paragraph 1” of that agreement or following any imposition of “sanctions,
including exclusion, suspension, or other limitation,” relating to Hernandez’s Medicare and
Medicaid participation. Appendix 40 §§ 10.3, 10.4. Notwithstanding any other term of the
employment agreement, either party could terminate the agreement by giving a 180-day written
notice of termination to the other. Id. § 10.9. As Hernandez was denied approval to act as a
provider for Fidelis and Excellus, she was in violation of Sections 1.2, 1.3, 10.3, and 10.4 of her
10 employment agreement. Her violation of these terms granted Kwiat Eye the right to take
immediate action to terminate her employment without falling subject to Section 10.9 of the
parties’ employment agreement. Thus, the Appellees did not breach their contractual obligations
to Hernandez by terminating her employment without prior notice.
On Hernandez’s claim for 15 unused vacation days for 2018, “[t]he determination as to
whether a former employee is entitled to be paid for accrued vacation time is governed by the
contract between the parties.” Steinmetz v. Attentive Care, Inc., 39 Misc. 3d 148(A), at *2 (2d
Dep’t 2013). Reading the plain terms of the employment agreement, Section 7.1 provides that
“Hernandez shall be entitled to fifteen (15) days of compensated leave during each calendar
year[.]” Appendix 38 § 7.1. Neither party disputes that the employment contract is silent as to
whether Hernandez is entitled to payment for any accrued and unused paid time off in the event of
her termination. Hernandez instead avers that the default rule in New York is that unpaid vacation
must be paid in the absence of an express waiver by the parties in a contract for employment.
That proposition is without merit. The sole case cited by Hernandez in support of her argument
does not mention a default New York rule that unpaid vacation must be paid when a contract is
silent on the issue and, in any event, concerns an alleged violation of the New York Labor Law.
See Glenville Gage Co., Inc. v. Indus. Bd. of Appeals, 52 N.Y.2d 777, 778 (1980). Hernandez
does not allege a violation of New York’s Labor Law here. Rather, she alleges a breach of
contract due to the Appellees’ alleged failure to pay her unused vacation time. In New York, “a
contract’s silence on an issue does not create an ambiguity which opens the door to the
admissibility of extrinsic evidence to determine the intent of the parties.” Donohue v. Hochul, 32
F.4th 200, 208 (2d Cir. 2022). The district court found no language in the parties’ employment
11 agreement that provides Hernandez with an express or implied right to compensation for unused
vacation time. Nor did the district court find the employment agreement’s terms ambiguous
because of the absence of a provision saying as much. Hernandez provides no reason for this
Court to disturb that finding, and therefore no justification for upsetting the district court’s grant
of summary judgment for the Appellees on this claim.
* * *
We have considered Hernandez’s remaining arguments and find them to be unpersuasive.
Accordingly, we AFFIRM the judgment of the district court in its entirety.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court