Opinion
# 2011-045-036 Claim No. 116032 Motion No. M-79337
07-12-2011
CAROLINE ADENIRAN and ADEJARE ADENIRAN v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-045-036 Claimant(s): CAROLINE ADENIRAN and ADEJARE ADENIRAN Claimant short name: ADENIRAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116032 Motion number(s): M-79337 Cross-motion number(s): Judge: Gina M. Lopez-Summa Fashakin & Associates, PC Claimant's attorney: By: Janet Fashakin, Esq. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: John L. Belford, IV, Assistant Attorney General Third-party defendant's attorney: Signature date: July 12, 2011 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered on this motion: Defendant's Notice of Motion for Summary Judgment with annexed Exhibits A-Q; Defendant's Memorandum of Law and Claimants' Affirmation in Opposition with annexed Exhibits 1-13.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 seeking an order granting summary judgment in its favor and dismissing the claim.
Claimant, Caroline Adeniran, alleges that while she was employed as a Registered Nurse at Pilgrim State Psychiatric Center she suffered harassing and intimidating treatment by her staff. She further alleges that she reported this treatment to her supervisor and human resources personnel on April 5, 2007 and that they never investigated her complaints of harassment. She contends that she was referred to a psychiatrist, and defendant did not transfer her to another psychiatrist when she expressed concerns that the psychiatrist was biased. Claimant alleges that she was suspended and harassed by defendant. Claimant also alleges that defendant continued its pattern of harassment by failing to remove expired allegations from her file, for blocking her transfer to another State facility and for providing an incorrect address for her to appeal her suspension. She alleges that she was terminated on May 15, 2008 in retaliation for making a complaint. She set forth that her complaint of harassment was the catalyst that brought about her termination as well as the unfair labeling of psychiatric illness. In her claim, claimant states that she is seeking damages for discrimination and damage to her reputation. In the notice of intention to file a claim dated September 17, 2008, claimant sets forth that the applicable statute of limitations for her claim is provided by Court of Claims Act § 10(4), a six month time period.
The Court only references the claims of Caroline Adeniran as the claim of her husband, Adejare Adeniran, is derivative in nature.
The evidence established that on April 4, 2007 claimant met with Sharon Goebel, Director; Patricia Cunningham RN Director of Nursing; Marge Squires, RN Assistant Director of Nursing and Suzanne Streng, Associate Personnel Administrator. Claimant expressed her concerns about what she considered harassing and intimidating behavior by her co-workers. After meeting with claimant, Suzanne Streng, Sharon Goebel, Patricia Cunningham, and Marge Squires met with Michelle Bard, Director of Human Resources to discuss the nature of claimant's complaints. As a result of the information provided to them by claimant, her supervisors and human resources personnel had concerns about claimant's ability to safely perform her job. Based upon those concerns, defendant requested that claimant undergo a physical and psychological evaluation, pursuant to New York State Civil Service Law § 72(5). The request was approved and the exams were scheduled.
Claimant was notified by letter dated April 5, 2007 that it was defendant's judgment that her continued presence on the job represented a danger to the patients and other employees. In the letter it is noted that claimant informed defendant that she was being harassed and that some examples included, magic the claimant believed was being performed to harass her, spraying of Purell which turns into glitter and entered her body, a co-worker speaking to a rope, a co-worker following claimant home and that claimant was getting ill with headaches and nausea when she had to come to work. Claimant was informed that she was being placed on immediate involuntary leave of absence and that she could charge her accruals and once they were exhausted she would be eligible for sick leave at half pay. She was also informed that she was directed to undergo a medical and psychiatric examination by New York State Employee Health Services and should she be found unable to perform her duties she would be given the right to appeal.
Claimant, through her attorney sent a letter to the Director of Nursing dated April 11, 2007 expressing concerns that claimant's complaints went uninvestigated and that claimant was quoted out of context in defendant's April 5, 2007 letter. A meeting was requested and defendant was informed by claimant that she would undergo a psychiatrist examination by an independent psychiatrist.
A letter dated April 12, 2007 was sent to claimant regarding her transfer to another State agency and the steps she needed to take to complete the process. However in the Agency Request for Medical Examination, dated April 16, 2007, defendant indicated that they contacted the agency claimant was to transfer to and that agency has postponed the transfer pending the results of the examination.
On April 26, 2007, Michelle Bard, Director of Human Resources, sent a letter to claimant requiring her to attend a psychological evaluation with Dr. Wapner in Brooklyn, as he was located close to her home. Claimant did not attend her originally scheduled psychological appointment on May 7, 2007 or her general medical appointment on May 9, 2007, although she admits having received the letters setting forth the appointments.
On or about May 14, 2007, claimant's attorney sent Ms. Bard a letter requesting that a neutral physician conduct any psychological evaluations. Ms. Bard responded that Employee Health Services determined which physicians employees will see.
Claimant appeared for the general medical appointment on May 23, 2007 as instructed and was found medically fit to perform her duties. Claimant did not appear for a second psychiatric appointment scheduled for May 21, 2007 but did appear for such examination on June 18, 2007 with Dr. Wapner. Dr. Wapner indicated in his report that claimant's mental status was indicative of a person with normal intelligence, there were no deficits of concentration or attention and her thinking seemed well organized with no evidence of delusions or perceptual distortions. He added that because of the discrepancy between what was reported by defendant and what he observed, he asked claimant to take the Minnesota Multiphasic Personality Inventory II (MMPI). He reported that claimant refused to cooperate and as a result he could not make a determination about her ability to perform her job duties.
Claimant was informed by letter dated June 27, 2007 that in order to complete her psychological evaluation she was required to take the MMPI, as required by Dr. Wapner and the test was scheduled for July 9, 2007. On or about July 3, 2007, claimant's attorney sent a letter to defendant informing them that claimant would not take the MMPI until copies of earlier tests were furnished. Claimant did not attend the MMPI examination on July 9, 2007. On July 12, 2007, defendant sent a letter to claimant's attorney informing her that Employee Health Services does not provide them with test results, only whether or not an employee is fit for duty. By letter dated July 20, 2007, claimant was informed that the MMPI examination was rescheduled for July 30, 2007. On July 20, 2007, claimant's attorney informed defendant that claimant will not take the examination unless the earlier test results are furnished. Defendant responded by letter dated July 25, 2007 that they were unable to provide them with test results and that claimant was required to take the MMPI and that no determination regarding her fitness to return to work could be made until she took the examination.
Claimant did not take the MMPI on July 30, 2007. Nothing further occurred until September 7, 2007 when defendant sent two letters to claimant. The first informed her that she was removed from the payroll effective July 30, 2007. The second required her to appear for an interrogation on September 14, 2007 regarding an alleged misconduct/incompetence for failing to attend the previously scheduled MMPI examinations. Claimant's attorney responded via facsimile on September 11, 2007 stating that the notice was defective, a formal notice of intent to file a lawsuit was served on August 9, 2007 and the attempt to carry out an interrogation was suspicious. The letter also stated that claimant had not yet received copies of her file as requested and recommended postponing the hearing.
On September 14, 2007, claimant, her attorney, Ms. Bard and Suzanne Streng, Associate Personnel Administrator met to discuss claimant's failure to take the MMPI. Claimant was advised that if she refused to take the MMPI that further administrative action would be taken and that the penalty would be termination. Claimant provided a signed statement at the interrogation by which she admitted receiving all the notices scheduling her appointments and that she failed to attend some of the appointments. Claimant stated that she did not take the MMPI because her earlier request for test results was not granted and because of her research that the MMPI is biased against people of color and certain cultural backgrounds. She also stated her belief that Dr. Wapner informed her that there was nothing wrong with her and that Dr. Wapner had to conduct psychological testing so he would not lose his job. Claimant also expressed her concerns that the doctor was biased because defendant sent the doctor their account of what had occurred on April 4, 2007.
On October 9, 2007, defendant spoke with the medical director of Employee Health Services who informed them that Dr. Wapner explained the importance of the MMPI to claimant and her attorney and that he addressed the cultural bias concerns.
By letter dated October 23, 2007, defendant sent claimant a Notice of Discipline for her failure to appear for an examination by the New York State Civil Service Employee Health Services on July 9, 2007 and July 30, 2007. The body of the letter also referenced three previous counselings dated, January 1992, March 2002 and June 2006. The proposed penalty was a two week suspension without pay. This letter contained information regarding claimant's ability to grieve the discipline notice and where the appeal should be sent. The letter also contained attachments which consisted of a statement required to accompany a notice of discipline; a grievance form; a demand for arbitration form and a statement of rights. There is no evidence that claimant appealed or grieved this disciplinary notice.
On or about November 30, 2007, defendant sent claimant a letter rescheduling the MMPI for December 10, 2007. Claimant did not attend the examination and on December 12, 2007, defendant sent claimant a letter directing her to attend an interrogation regarding her failure to attend the MMPI examination.
An interrogation was held on January 3, 2008. Claimant, her attorney, Ms. Bard and Ms. Streng were in attendance. Claimant provided a written signed statement setting forth that she received the letter scheduling the appointment but that she did not attend because she believed the MMPI to be a biased test. She stated that she believed that Dr. Wapner would not be objective. She concluded that "I will not appear for future MMPI tests if other appointments are scheduled for me. If my life depends on that test, a test, which is open to the 'evaluator's' interpretation, I will not take the test." She also stated that after receiving a summary of Dr. Wapner's examination she felt he was not listening to her because some of the information was incorrect.
Claimant did not provide the Court with any information regarding these interrogations. Defendant provided the Court with copies of claimant's signed statements.
Ms. Bard, in her affidavit, stated that on or about January 4, 2008 she spoke to Employee Health Services and was informed that while claimant could see another doctor, she may still be required to take the MMPI. Ms. Bard also stated that claimant refused further appointments.
On April 18, 2008, claimant received a Notice of Discipline dated April 1, 2008 regarding her failure to appear for the December 10, 2007 examination by the New York State Civil Service Employee Health Services. The body of this letter only referenced one previous counseling dated June 2006. The proposed penalty was termination. Defendant avers that termination was appropriate because failing to take the test was refusing a direct order. The letter explained that the proposed penalty was subject to the provisions of Article 33.5d of the union agreement. Claimant was instructed to grieve this notice by filing an appeal with the Director of the Bureau of Employee Relations in Albany. It also instructed her to carefully read the grievance procedures and the rights provided by the union agreement. The Court was not provided with copies of the attachments in the letter.
Ms. Bard, in her affidavit, stated that claimant failed to file an appeal with the Bureau of Labor Relations as directed in the letter within the fourteen day period. Claimant attempted to appeal the disciplinary notice by completing a Grievance Form dated April 23, 2008 and mailing it to the American Arbitration Association. On May 8, 2008, claimant's attorney informed defendant by letter, that the address provided for the American Arbitration Association was incorrect and the appeal was returned. The claimant also requested the correct address and a stay of the proceeding. On May 9, 2008, the Bureau of Labor Relations sent claimant a letter that her appeal needed to be received by April 29, 2008 and that because they did not receive the appeal, claimant was to be terminated from her employment. On May 14, 2008 claimant sent a letter to the Bureau of Labor Relations. In that letter claimant's attorney explained that she timely elected arbitration but because the address was incorrect, the grievance materials were returned to her. Claimant requested a stay of the proceedings. On May 15, 2008, Ms. Bard wrote to claimant's attorney providing the correct address for the American Arbitration Association. The letter also explained that because claimant was placed on leave pursuant to Civil Service Law § 72(5) the appeal had to be made to Albany as directed by the letter. The letter further explained that grievances are only filed with American Arbitration Association when an employee has been reassigned or suspended. On May 15, 2008, claimant was terminated from her employment. On May 19, 2008, the Bureau of Labor Relations wrote to claimant correcting the date the grievance needed to be received to May 2, 2008 but reiterated that because the grievance was not properly filed in Albany as directed in the letter, defendant is free to implement the penalty. On May 23, 2008 claimant sent another letter to the Bureau of Labor Relations. In that letter claimant's attorney explained that she timely elected arbitration but because the address was incorrect, the grievance materials were returned to her. Claimant requested a stay of the proceedings and reconsideration of claimant's termination. On May 30, 2008, the Bureau of Labor Relations responded that because this was not a disciplinary suspension, Article 33.4 did not apply to claimant's situation and therefore the disciplinary notice had to be appealed to Albany. Ms. Bard stated in her affidavit, that the decision by the Bureau of Labor Relations not to extend the time to appeal the termination was binding upon them.
Defendant has moved for summary judgment dismissing the claim asserting that the claimant has failed to state a prima facie case of discrimination or in the alternative, defendant had a legitimate non-discriminatory reason for its actions. Defendant also argues that the claimant has failed to establish that defendant's reasons were pretextual. Claimant opposes the motion arguing that there are material issues regarding the facts leading up to claimant's termination that are in dispute.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
To prevail on a summary judgment motion, in a discrimination case, defendants must demonstrate either claimant's failure to establish every element of intentional discrimination or, having offered legitimate non-discriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual. If defendant is able to meet this burden, summary judgement is appropriate inasmuch as no valid purpose is served by trying a claim that cannot survive as a matter a law (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305-306 [2004]).
A claimant alleging discrimination has the initial burden of establishing a prima facie case of discrimination. In order to establish a claim for retaliation, a claimant "must show [1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a casual connection between the protected activity and the adverse employment action" (Feingold v New York, 366 F3d 138, 156 [2d Cir 2004]). Under state law, to establish a prima facie case of retaliation, claimant must show (1) she has engaged in activity protected by Executive Law § 296, (2) the employer was aware that she participated in the protected activity, (3) she suffered from a disadvantageous employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action taken by the employer (Pace v Ogden Servs. Corp., 257 AD2d 101 [3d Dept 1999]). The same standards are used for analyzing federal and state law claims (see Ferrante v American Lung Assn., 90 NY2d 623 [1997]). "A prima facie case of retaliation requires evidence of a subjective retaliatory motive for the termination" (Matter of Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 128 [1995]).
Defendant argues that claimant has failed to establish that she was engaged in a protected activity. In order to establish engagement in a protected activity, a claimant must proffer evidence that she opposed or complained about unlawful discrimination. Generalized complaints about harassment without reference to discrimination because of a protected class are insufficient to establish the first prong (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]).
Claimant's complaint about harassing and intimidating treatment is insufficient to establish that she was engaged in a protected activity because she did not set forth that she believed that she was being harassed or intimidated by her co-workers because of her membership in a protected class or because of discrimination. Although claimant alleged that her termination was in retaliation for making a complaint and that this was discriminatory, claimant failed to provide any evidence that she believed that defendant took any actions because of her membership in a protected class. Claimant's deposition testimony specifically sets forth that she did not believe that she was discriminated against because of her race, creed, national origin, sex, or disability, actual or perceived. Thus, claimant has failed to establish that she was engaged in a protected activity and that defendant was aware of it.
Moreover, there is no basis for finding any casual connection between the alleged protected activity and the termination. The record establishes that claimant was terminated over a year after she made her complaint to defendant. Prior to her termination, claimant was given at least three opportunities to take the MMPI examination, she was brought up on disciplinary charges regarding her failure to take the examination and she met with defendant regarding the consequences of her failure to take the examination. Claimant informed defendant that she would never take the examination. The termination was the result of the claimant's failure to take a MMPI test that was required to determine her fitness to return to work. Under these circumstances, the temporal proximity between the complaint and the termination is insufficient to establish and support a claim of retaliatory discharge (Koester v New York Blood Ctr., 55 AD3d 447 [1st Dept 2008]).
As such, the Court finds that claimant has failed to establish a prima facie case of retaliation. However, assuming arguendo that claimant set forth a prima facie case of retaliation, claimant has not satisfied her burden of showing that defendant's reasons for terminating her, to wit, failure to take the MMPI was pre-textual. Once defendant proffers a legitimate non-discriminatory reason for its employment decision, the claimant, in order to succeed on her claim, must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]).
The undisputed facts establish that claimant repeatedly failed to take the MMPI test that, according to the psychologist, was necessary in order to determine her fitness to return to work. Claimant was given three opportunities to take the test to which she refused. She was issued two notices of discipline regarding her failure to take the test. The first involved a two-week suspension which claimant did not appeal, and the second notice of discipline sought her termination for her refusal to take the test. Prior to issuing these disciplinary notices, claimant and her attorney met with defendant and discussed the consequences of claimant's failure to take the MMPI. Claimant appealed the notice of discipline to the American Arbitration Association and not to Albany as the notice directed.
Defendant may have sent out confusing and/or contradictory appeal information and refused to permit claimant an extension of time to re-file her appeal. However, claimant's reasons for her refusal to take the test, that her research indicated that the test was biased toward people of color and certain cultural backgrounds, is insufficient to prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination. Claimant has not established that there are any issues of material fact with regard to defendant's stated reason for her termination. In addition, defendant's refusal to extend her time to appeal, although it could be considered petty, has not been shown to be false, motivated by discrimination or otherwise unlawful.
Claimant failed to raise an issue of fact that she was discriminated against in retaliation for making a complaint. Claimant failed to establish that when she made her complaint to defendant that she was complaining of or opposing a discriminatory action. She never alleged that the harassing and intimidating behavior she experienced and complained about was due to discrimination against her because of her protected class. Claimant at her deposition did not articulate that she was being discriminated against because of any protected class, in fact she stated that she did not believe she was the victim of discrimination. Claimant, although she used the word discrimination in reference to her allegations of retaliatory discharge, did not argue, point out, reference or establish any evidence of discrimination.
Thus, the Court finds that defendant provided sufficient evidence that claimant's employment was terminated for legitimate non-discriminatory reasons. In opposition claimant failed to raise a triable issue of fact.
Given the aforementioned findings, the Court finds that claimant's defamation claims must also be dismissed (Buckley v Fitzsimmons, 509 US 259 [1993]). Additionally, the Court notes that in regard to her defamation claim, claimant has failed to satisfy the strict pleading requirements of CPLR 3106(a) (Dillon v City of New York, 261 AD2d 34 [1st Dept 1999]).
Finally, to the extent that claimant is seeking to recover based upon allegations of harassment, New York does not recognize a common-law cause of action for harassment (Santoro v Town of Smithtown, 40 AD3d 736 [2d Dept 2007]). Accordingly, the Court dismisses that portion of the claim that alleges harassment.
Therefore, for the foregoing reasons, it is hereby ordered that defendant's motion for summary judgment is granted and the claim is dismissed.
July 12, 2011
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims