Summary
In Brightman, the plaintiff had complained to various employees at the hospital where she worked about another employee's inappropriate conduct, without ever invoking the term "sexual harassment."
Summary of this case from Duviella v. Counseling Service of the E.D. of New YorkOpinion
98 Civ. 3931 (WK)
July 13, 2000
Michael Farhi, Esq., Uscher, Quiat, Usher Russo, Hackensack, New Jersey, for Plaintiff.
John L. Harrisingh, Esq., Horan Horan, LLP, White Plains, NY, for Defendants.
MEMORANDUM ORDER
In this employment discrimination case, we have before us a complaint against St. Vincent's Hospital and a wide variety of its employees alleging the following causes of action:
(1) employment discrimination under Title VII and under the New York State Human Rights Law;
(2) violations of the federal Equal Pay Act;
(3) intentional infliction of emotional distress; and
(4) breach of contract.
The complaint apparently assumes that the facts alleged make each of the defendants liable to plaintiff on each of the causes of action. This is met by what purports to be a single motion for summary judgment on behalf of all the defendants on all causes of action. However, controlling considerations vary depending on the cause of action involved. For example, in the Second Circuit, only the employer of a plaintiff may be held liable with respect to Title VII, no matter how outrageous the conduct of its employees may have been. Tomka v. Seiler Corp. (2d. Cir. 1995) 66 F.3d 1295; cf. id. at 1318-24 (Parker, C.J., dissenting on this issue). We shall therefore base our discussion on the theory that separate motions have been made on behalf of each of the defendants. For the reasons expressed below, we grant some of such motions and deny others.
BACKGROUND
We accept, as we must, all of the plaintiff's factual allegations as valid and draw all reasonable inferences in her favor. We shall first present all relevant facts pertinent to the plaintiff's Title VII claim and her retaliation claim against the Hospital. We shall then present what further facts may be relevant to the rest of plaintiff's claims.
Plaintiff Victoria Brightman (hereinafter "plaintiff") is a black female of Nigerian descent. She was employed by defendant St. Vincent's Hospital as a physician's assistant from August 1993 to February 1997 in the prison health program at the Manhattan House of Detention and at the Vernon C. Baines Correctional Facility (referred to as the "Barge").
In the spring of 1995, defendant Dr. Gary Shaw, an employee at St. Vincent's Hospital who worked with plaintiff, is alleged to have begun a practice of sexual and racial harassment of plaintiff. Drawing all inferences from the depositions and the complaint in plaintiff's favor, it appears that Shaw engaged in various harassing actions, including "sticking out" his tongue at the plaintiff, asking her to smell his armpit, rubbing against her, walking into the women's locker room while she was changing, making crude and offensive remarks about the size of women's genitalia, asking plaintiff to spank him and calling plaintiff "mommy." In total, plaintiff alleges approximately twenty separate incidents of harassment by Shaw.
Plaintiff complained to various employee's of the Hospital about Shaw's actions. For example, she allegedly walked into defendant Braslow's office and stated, "I am here to discuss Shaw's behavior." Braslow then allegedly ushered her out of his office, declaring that, "If I knew you were here to talk about Dr. Shaw, I would have not kept this appointment." (Brightman Dep. 386-87). Braslow concedes that he ended his meeting with her "prematurely" and never "consider[ed] getting her side of the story." (Braslow Dep. 72). Plaintiff then proceeded to complain to defendant Janet Ortiz, a representative of the Hospital's Department of Employee Relations. Plaintiff testifies that she told Ortiz that, "I came there to complain about Dr. Shaw's inappropriate conduct." Ortiz allegedly responded, "We don't have time to discuss that today." (Id. 391-95). In sum, the Hospital failed to take the necessary steps to resolve plaintiff's complaints.
Plaintiff claims that two separate incidents occurred in retaliation for her claim of harassment against Shaw. First, in October 1996, a patient went to an outside clinic, which applied an ointment that must be washed off after a certain number of hours or it will cause severe burns. This patient returned to the Barge during plaintiff's normal shift, 4:00 p.m. to 12:00 a.m. Plaintiff alleges that at Shaw's direction she wrote in the patient's chart that she had seen and treated him. The medication, however, was never removed. Despite the fact that plaintiff's entry in the chart had been at Shaw's specific direction, Shaw reprimanded her about her alleged falsification of medical records. Plaintiff also alleges that Lopez and Ortiz were both personally involved in retaliation. They were employed at the Hospital's Employee Relations Department and were responsible for handling grievances filed by the Hospital's employees. On January 13, 1997, the plaintiff met with Ortiz and advised her of Shaw's behavior and her belief that her suspension was in retaliation for her protests. Plaintiff returned to her employment about four days thereafter. Later that month, she attempted to obtain a grievance form and policy manual from Ortiz and Lopez. But, they falsely advised plaintiff that no such forms existed. Indeed, they did not inform her of any procedure for filing a grievance.
DISCUSSION I. SEXUAL HARASSMENT UNDER TITLE VII A. Evidence of Hostile Work Environment
Under Title VII, a plaintiff must show that the "workplace is permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." "In determining whether there exists a hostile or abusive workplace, courts must consider a variety of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the employee's work performance." Quinn v. Green Tree Credit Corp. (2d Cir. 1998) 159 F.3d 759, 764. Contrary to the Hospital's assertions, the alleged incidents between plaintiff and the Hospital's employee Shaw were frequent and exceptionally obnoxious.
B. Statute of Limitations
The Hospital further argues that as a result of a 300 day time restriction for Title VII claims, plaintiff's allegations of sexually harassing conduct prior to November 14, 1996 are time-barred. We disagree. "If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant action allegedly taken pursuant to the employers's discriminatory policy or practice, including those incidents that would otherwise be time barred." Van Zant v. KLM Royal Dutch Airlines (2d Cir. 1996) 80 F.3d 708, 713.
We may find a "continuing violation" upon proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the Hospital to continue unremedied for so long as to amount to a discriminatory policy or practice. Quinn, 159 F.3d at 759.
In order to decide whether specific and related discriminatory acts amount to a "discriminatory practice," we must ask the following three questions:"
(1) Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation?;
(2) Are the alleged acts recurring or more in the nature of an isolated work assignment or employment decision?; and
(3) Does the act have the degree of permanence which should trigger an employee's awareness and duty to assert his or her rights?" Johnson v. Nyack Hosp.
(S.D.N.Y. 1995) 891 F. Supp. 155, 163.
Regarding the first two of these questions, the above described summaries of plaintiff's allegations about Shaw clearly answer them in plaintiff's favor.
As to the third question, in order to survive summary judgment, the facts must also reveal that the Shaw's actions have a high "degree of permanence." Johnson, 891 F. Supp. at 163 (citation omitted). (This is an objective standard: the defendant's acts must trigger a reasonable employee's awareness to assert his or her rights.) In our case, due to the severity and repetition of the harassment, this standard is met.
As a result of our finding a continuing violation, the otherwise time barred allegations are admissible for consideration by a jury. Hence, the motion for summary judgment on statute of limitations grounds is denied.
C. Retaliation
Plaintiff avers that after she had reported sexual harassment, the Hospital, acting through Shaw and other Hospital employees, retaliated against her through disciplinary action and her eventual termination.
To establish a prima facie case of retaliation under Title VII, an employee must show:
(1) Participation in a protected activity known to an employer;
(2) an employment action disadvantaging the employee; and
(3) a causal connection between the protected activity and the adverse employment action.42 U.S.C. § 2000e-3(a).
Plaintiff has raised genuine factual issues concerning the first and third elements, and the second element is obviously satisfied. Hence, she has met the relatively low burden to survive summary judgment on a retaliation claim. See Gallo v. Prudential Residential Servs., L.P. (2d Cir. 1994) 22 F.3d 1219, 1224
Regarding the first prong of the statutory test, even though plaintiff never invoked the term "sexual harassment" when complaining of the defendants' behavior, she testified that she told various supervisors about all of Shaw's actions from June to October 1996. This actual notice demonstrates a "protected activity known to an employer."
Regarding the second prong of the test, plaintiff's eventual termination from the Hospital is obviously an adverse employment decision.
Finally, the third prong requires a causal nexus. Circumstantial evidence suggests a plausible causal connection between plaintiff's complaints about Shaw and the ensuing unwarranted and otherwise inexplicably harsh disciplinary actions leveled against her. Taking the facts in the light most favorable to plaintiff, Shaw's series of exaggerated reprimands and disciplinary grievances about her, without giving her leave to defend herself, suggest an improper motive.
Plaintiff has thus raised genuine issues of fact regarding the claim of retaliation by the Hospital, and we deny defendant's motion with respect to this issue. However, as above noted, the Title VII claim against all individual defendant's is dismissed.
II. NEW YORK HUMAN RIGHTS ACT
Plaintiff also brings a cause of action under the New York Human Rights Law, N.Y. Exec. Law § 296(6) (the "HRL"), the state employment discrimination statute which, unlike Title VII, permits suit against individuals. Applied to the instant case, on the basis of matters already discussed, we find that a cause of action has been established against the Hospital, Shaw, Braslow, Ortiz and Lopez.
As to the defendant Smith, she worked with Dr. Shaw as a nurse manager for the Hospital and was present at a meeting between Shaw and two inmates where Shaw violated Hospital policy by interviewing patients in a non-medical situation, presumably for the purpose of acquiring evidence for use against the plaintiff. Drawing all inferences in plaintiff's favor, we find that no facts are alleged that establish that Smith knew that Shaw's presumably improper interview with these inmates was in any way directed against plaintiff. We therefore dismiss plaintiff's cause of action against Smith.
III. E QUAL PAY ACT
Plaintiff has withdrawn her claim under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and we direct the Clerk to enter an order dismissing such claim.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
All of the defendants are entitled to summary judgment on plaintiff's intentional infliction of emotional distress claim. On oral argument, plaintiff conceded that she had not established the necessary elements of this tort during discovery. Moreover, any conduct plaintiff alleges prior to June 3, 1997 cannot form the basis for this tort because of a one-year statute of limitations, N.Y. C.P.L.R. § 215(3), all of the alleged incidents of discrimination having taken place prior to that cut-off date. We consequently grant summary judgment to all defendants on this issue.
V. BREACH OF CONTRACT
Finally, plaintiff claims that the Hospital breached some purported contract concerning her compensation and benefits, but she does not sufficiently support this claim. Plaintiff was an at-will employee during her tenure at the Hospital. The Hospital's employee handbook specifically and prominently disclaims any contractual obligations to her. As a result of this disclaimer, there is no contractual obligation between the Hospital and plaintiff. The Hospital's motion is granted on this claim.
CONCLUSION
For the reasons discussed above, we grant defendant's motion in part and deny it in part as we:
(1) DENY the motion for summary judgment with respect to plaintiff's Title VII cause of action against the Hospital, but dismiss the claim against the individual defendants;
(2) DENY all motions under the New York State Human Rights Act, except as to Michelle Smith, for whom summary judgment is GRANTED; and
(3) GRANT all motions on the Equal Pay Act, intentional infliction of emotional distress, and breach of contract claims.
SO ORDERED.