Opinion
14468/02.
Decided October 29, 2004.
Plaintiff, Kevin Dickerson ("Dickerson'), commenced the instant plenary action against defendant, Health Management Corp. of America ("HMCA"), seeking monetary damages on the basis of wrongful termination. Specifically, plaintiff alleges that his employment was terminated because of "his race, his color and/or his natural origin" in violation of Exec. Law § 296. Co-plaintiff, Carla Dickerson's cause of action alleging loss of consortium is derivative. Thus, Ms. Dickerson's cause of action is contingent on the survival of her husband's claim. Following joinder of issue, by notice of motion dated December 19, 2003, defendant HMCA moves for summary judgment seeking to dismiss Dickerson's complaint on the basis that plaintiff's termination was not wrongful. For the following reasons, the motion is denied.
FACTS
Defendant HMCA is a medical management company which oversees personnel, administrative, and other non-medical functions for medical offices and radiology centers, known as sites. Each site is staffed with marketing representatives, who concentrate on sales and marketing, and site directors, who in addition to sales and marketing are also responsible for the general administration of the sites. In the summer of 2000, business at the company's Bronx and Yonkers sites had allegedly declined. This problem was exacerbated by the fact that neither site had a manager for several months. Xavier Rodrigo ("Rodrigo"), the Vice President of Operations at that time, sought to hire a new employee who would focus on bringing in new customers and business.
In September 2000, plaintiff Dickerson, an African American, applied to defendant HMCA after the company advertised for both the marketing representative and site director positions. Plaintiff met with Thomas Gemma ("Gemma"), the Regional Sales Director, and then with Rodrigo, the Vice President of Operations. Both Gemma and Rodrigo assert they told Dickerson that both the marketing representative and site director positions would require him to report to one of the sites every day by 8:30 or 9:00 A.M., to keep in touch with sites staff throughout the day, and to check in at the end of the work day. Even though plaintiff resided in Pennsylvania, he assured Gemma and Rodrigo that showing up to work on time would not be a problem. Rodrigo also stated that although he interviewed one other applicant, a Caucasian, he had declined to hire that person because he had no experience in the medical field. Rodrigo asserts he did not offer plaintiff the site director position at that time because he wanted Dickerson to concentrate on attracting new business rather than paperwork and the administration of sites. Rodrigo offered plaintiff the marketing representative position which Dickerson accepted. Though not asserted by either Gemma or Rodrigo, plaintiff claims that this offer was premised on a verbal agreement that he would be given a position as site director three months later, if he "gained the respect of the staff."
Defendant asserts that from the inception of his employment, plaintiff had difficulty meeting his work obligations. Rodrigo and Gemma contend plaintiff was difficult to reach by telephone, was frequently tardy or failed to show up for work, and often failed to check in with the sites during the day. Despite his less than stellar performance, in late November or early December 2000, plaintiff was promoted to site director. Plaintiff claims Rodrigo and Gemma approached him regarding the promotion, while the defendant claims that the plaintiff inquired about it. Rodrigo states he had reservations about the promotion due to plaintiff's alleged absenteeism and lateness, but nonetheless decided to promote him, hoping that the additional duties would improve his job performance.
Although upon his promotion plaintiff made assurances that his work performance would improve, defendant asserts that it only got worse. Plaintiff allegedly continued to be absent or late, was unreachable during business hours, failed to check-in at the end of the day, and was extremely behind in his paperwork and billing. Rodrigo's assistant, Debbie Farrell ("Farrell"), who was in charge of overseeing the day-to-day operations of the various sites, including the Bronx and Yonkers site, asserts she repeatedly received complaints from site staff members regarding their inability to reach the plaintiff. Both Rodrigo and Gemma allege they spoke with plaintiff about these problems and warned that if he did not remedy them, he could be terminated.
The plaintiff, on the other hand, alleges that after being promoted, he came to realize that he was being treated differently than Caucasian site managers. For instance, he states that he was denied a cell phone or pager, while Caucasian supervisors were allegedly either given such items or an allowance for them. Additionally, he says that he was not provided with training to perform diagnostic tests, which he states was necessary for his job. He asserts that he was prevented from hiring competent staff, and that he was compelled to manipulate the personnel files of two minority employees who had been terminated in order to protect the company against possible discrimination claims. He further contends that his sites were equipped with outmoded equipment badly in need of repair. Plaintiff states that this disparate treatment culminated on July 2, 2001, when Gemma informed him that he was terminated.
Farrell avers in her affidavit that it was company policy not to provide cell phones to site managers and that plaintiff represented that he had his own phone. Yet in her earlier deposition, she avers that site directors were provided with either a beeper or cell phone, and plaintiff refused to have either one. She also avers that plaintiff, like all the other site managers, was entitled to be reimbursed for the use of their phone for company business but that plaintiff never submitted a request for reimbursement during his tenure. Of more significance, defendant avers that every employee accrued a set number of vacation, sick and personal leave days each month and that plaintiff's absences far exceeded his accumulated time. Finally, defendant alleges that the decision to terminate the plaintiff was made only after repeated warnings about the plaintiff's job performance, his failure to remedy his absenteeism, tardiness, and his inability to stay in touch with the sites. Due in part to plaintiff's work performance, the sites suffered in many areas including billing and patient care.
SUMMARY JUDGMENT
Summary judgment is the procedural equivalent of a trial. ( S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 NY2d 338). It is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. ( Rotuba Extruders v. Ceppos, 46 NY2d 223). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, presenting sufficient evidence, in admissible form, to eliminate any material issues of fact from the case. ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. ( Id. at 853). In order to defeat the motion, the non-moving party must show through admissible evidence the existence of a genuine issue of material fact. ( Zuckerman v. City of New York, 49 NY2d 557, 560). Subsequently, if without weighing the credibility of the evidence, the court determines that no triable issue exists, the motion will be granted. ( S.J. Capelin Associates, Inc. v. Globe Manufacturing Corporation, 34 NY2d 338, 341; see, also Knepka v. Tallman, 278 AD2d 811). Notably, a dispute over irrelevant facts does not create a triable issue, nor are speculative and conclusory statements sufficient evidence to defeat a summary judgment motion. ( Bradley v. Nat'l Railroad Passenger Corp., 797 F. Supp 286, 289; Alvarez v. Prospect Hospital, 68 NY2d 320; Truiano v. Liberty Lines Transit, Inc., 273 AD2d 20).
EMPLOYMENT DISCRIMINATION
Exec. Law § 296(1)(a), states in pertinent part:
It shall be unlawful discriminatory practice for an employer . . . because of the . . . race of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual, in compensation or in terms, conditions or privileges of employment.
Employment discrimination claims under Exec. Law § 296 are analyzed using the burden-shifting test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04. Plaintiff bears the initial burden of establishing a prima facie case of discriminatory termination. ( McDonnell Douglas Corp. v. Green, at 802). To support a cause of action under Exec. Law § 296(1), plaintiff must demonstrate (1) he was a member of the class protected by the statute, (2) he was actually or constructively discharged, (3) he was qualified to hold the position, and (4) the discharge occurred under circumstances raising the inference of unlawful discrimination. ( See, Dais v. Lane Bryant, Inc., 168 F. Supp.2d 62 (2001); see also, Ferrante v. American Lung Assn., 90 NY2d 623, 629; Matter of Milonas v. Rosa, 217 AD2d 825, lv. denied 87 NY2d 806; Sommerville v. R.C.I., 257 AD2d 884). Upon making a prima facie showing, the burden then shifts to the employer, who must supply a legitimate, non-discriminatory explanation to support its acts. ( McDonnell Douglas Corp. v. Green, at 802).
A legitimate, non discriminatory basis for termination has been found to include a profound inability to get along with co-workers ( Ramos v. Marriott Int'l, Inc., 134 F.Supp.2d 328, 342; Meiri v. Dacon, 759 F.2d 989, 997), an employees frequent absence from his/her work desk when the employer would call and the employee's refusal to perform his/her duties ( Montanile v. National Broadcast Co., 211 F.Supp.2d 481), excessive absence ( Molokwu v. City of New York, 2000 WL 1056314), chronic absemtism coupled with lateness ( Gomez v. Pellicone, 986 F.Supp. 220), poor work performance ( Kapila v. Divney, 269 AD2d 12; Pramdip v. Building Service 32B-J Health Fund, 308 AD2d 523), and neglect of duties coupled with erratic attendance. ( Youth Action Homes, Inc. v. State Div. of Human Rights, 231 AD2d 7). Insubordination has also sufficed as a legitimate basis termination. Golden v. Worldvision, 133 AD2d 50; Speiden v. Innis, 216 A.D. 408; Trieger v. Montefiore Medical Center, 3 Misc 3d 1103(A). Thus, courts have recognized a variety of neutral reasons for terminations.
Once the employer is successful in demonstrating a legitimate non-discriminatory explanation to support its acts, the burden shifts to plaintiff who must then demonstrate that the employer's stated rationale is in fact a pretext for discrimination. ( Ferrante v. American Lung Assoc., 90 NY2d 623, 630 citing McDonnell Douglas Corp. v. Green, at 802). Or stated differently, that the stated reason was a cover-up. ( McDonnell Douglas Corp. v. Green, at 805). To prove that the stated reason for termination is a pretext, plaintiff must demonstrate "both that the reason was false, and that discrimination was the real reason." ( St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515). Acknowledging the fact that discrimination is usually "accomplished by devious and subtle means" ( 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 NY2d 176), pretext can be shown through the presentation of evidence regarding the employer's "general policy and practice with respect to minority employment." (Bradley v. National Railroad Passenger Corporation, 797 F. Supp. 286). Such evidence might include statistics on minority employment, and proof of contradictory or inconsistent treatment of white employees who behaved similarly to the plaintiff. ( Dais v. Lane Bryant, Inc., 168 F. Supp.2d 62). Pretext can be shown through the production of additional evidence or through the same evidence that was used by the plaintiff to establish the prima facie case. ( Cronin v. Aetna Life Ins. Co., 46 F.3d 196).
The fact finder's disbelief of the reasons proffered by the employer-defendant, particularly if disbelief is accompanied by a suspicion of untruthfulness, may, together with the elements of the prima facie case, suffice to show intentional discrimination. "Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." ( Ferrante v. American Lung Ass'n, 90 NY2d at 630 citing Mary's Honor Ctr. v. Hicks, 509 U.S. at 511). "On the other hand, `[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination" for plaintiff to prevail." ( Ferrante v. American Lung Ass'n, 90 NY2d at 630 citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 519). Even if the employer's reason is "unpersuasive, or even obviously contrived" ( St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 524), plaintiff always has the ultimate burden of proof to show that intentional discrimination has occurred under a consideration of all the evidence. ( Ferrante v. American Lung Ass'n, 90 NY2d at 630 citing Texas Dept. of Community Affairs v. Burdine, 450 U.S., at 253; St. Mary's Honor Ctr. v. Hicks, 509 U.S., at 507-508). Similarly, if plaintiff is unable to raise a question of fact concerning either the falsity of defendant's proffered basis for the termination or that discrimination was more likely the real reason, summary judgment is appropriate. ( Ferrante v. American Lung Ass'n, 90 NY2d at 631).
DISCUSSION
To support a cause of action under Exec. Law § 296(1), plaintiff must demonstrate four elements: (1) he was a member of the class protected by the statute, (2) he was actually or constructively discharged, (3) he was qualified to hold the position, and (4) the discharge occurred under circumstances raising the inference of unlawful discrimination. ( See, Dais v. Lane Bryant, Inc., 168 F. Supp.2d 62 (2001); see also, Ferrante v. American Lung Ass'n., 90 NY2d 623, 629, 665 N.Y.S.2d 25; Matter of Milonas v. Rosa, 217 AD2d 825, 629 N.Y.S.2d 535, lv. denied 87 NY2d 806, 641 N.Y.S.2d 597; Sommerville v. R.C.I., 257 AD2d 884, 684 N.Y.S.2d 53). Plaintiff's burden of proof at the prima facie stage is de minimis ( See, Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37). Remembering always that the evidence must be viewed in the light most favorable to plaintiff. ( Chevere v. Hyundai Motor Co., 4 AD3d 226;
Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69).
It is undisputed that plaintiff, as an African American, is a member of a class protected statute. Williams v. R.H. Donnelley, Corp., 368 F.3d 123. It is also conceded by defendant that plaintiff was actually discharged. Though defendant disputes plaintiff was qualified to hold the position of site manager, there is some evidence to establish otherwise. Defendant conceded plaintiff was initially hired based on his prior medical marketing experience and later promoted to site manager, the very position they now claim he was unqualified to hold. Moreover, in is affirmation plaintiff avers that prior to working with HMCA he served as both regional marketing director and site director at Bronx Lebanon and North General Hospital. Thus, their exist sufficient evidence to establish three of the necessary four elements.
The fourth element, namely that plaintiff's discharge occurred under circumstances raising the inference of unlawful discrimination, can be satisfied by a showing that the plaintiff's position remained open after he was discharged, or that he was replaced by someone outside his protected class. ( Dais v. Lane Bryant, Inc., 168 F.Supp.2d 62; de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). Here, defendants acknowledges plaintiff's replacement was a Caucasian. Accordingly, plaintiff has made a prima facie showing under Executive Law § 296(1). The burden now shifts to defendant-employer who must supply a legitimate, non-discriminatory explanation to support its acts. ( McDonnell Douglas Corp. v. Green, at 802).
According to defendant's employee, Gemma, plaintiff, as a site director, had all of the responsibilities of a marketing director (namely sales and film delivery), as well as the additional duties of site management, personnel supervision, and site maintenance. Defendant asserts plaintiff was discharged due in part to plaintiff's lack of productivity and his inability to perform the minimum requirements of his position, namely to show-up to work, be punctual and keep in touch with the sites throughout the work day. Though defendant calls into question plaintiff's ability to adequately perform his job as site director, there is some evidence to demonstrate plaintiff performed well in the area of sales. Plaintiff asserts and defendant concedes that plaintiff successfully negotiated with and established St. Gabrielle's Hospital as a new client. As a result of these efforts, 20 to 60 referrals in new business was generated each month. Thus, calling into question defendant's assertion of lack of productivity.
While sales was one aspect of the site director position, it also includes management responsibilities, and required punctuality and compliance with the company's attendance policy. As a requirement of his employment (both as marketing director and site manager), plaintiff was required to timely report to one of the two sites in the morning and check-out at the end of each day. Though plaintiff claims no one told him what his responsibilities as site director would be, in his deposition he avers both Rodrigo and Gemma told him he had to report to work early. In opposition to the instant motion, plaintiff avers he was told by Gemma he could arrive at work at 10:00 a.m. Yet, this assertion is belied by his deposition testimony wherein he acknowledged Rodrigo informed him he was to report to work between 8:30 a.m. and 9:00 a.m., and Gemma allegedly informed him he could come in at 9:00 a.m. to 9:30 a.m.
Similarly, in his deposition plaintiff avers that upon his promotion he was instructed and expected to be in the office more often, and that he was told to call in when he was away. He further testified in his deposition he received an employee handbook in January 2000, which states in pertinent part, "If at any time during the calendar year an employee has taken time off in excess of the maximum Paid Time Off, the employee could accrue for the entire year, such is grounds for dismissal" and that "Poor attendance and excessive tardiness are disruptive," and that "either may lead to disciplinary action, up to and including termination of employment."
In support of its contention concerning plaintiff's tardiness and absenteeism, defendant submits an attendance record which indicates plaintiff was absent fourteen and one half (14½) days in a span of approximately six (6) months, and only accrued seven (7) days off during the same period. The same record also shows plaintiff was late at least five times in the period from May 7, 2001 to June 18, 2001. This evidence of plaintiff's absenteeism and tardiness is sufficient to establish a "legitimate, non-discriminatory explanation" for plaintiff's termination. ( McDonnell Douglas Corp. v. Green, at 802).
The burden now shifts to plaintiff to demonstrate defendant's basis for termination is only a pretext, and that the true motive was discrimination. ( Ferrante v. American Lung Assoc., 90 NY2d 623, 630 citing McDonnell Douglas Corp. v. Green, at 802). To establish pretext, "it is not enough to disbelieve the employer, the fact finder must believe the plaintiff's explanation of intentional discrimination." ( Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146). In an attempt to demonstrate defendant's allegations of time and leave abuse is a pretext, plaintiff merely avers such allegations are not true and offers no other evidence to contradict defendant's assertions. Similarly, plaintiff's allegations that his time records may have been manipulated are unsubstantiated. His affidavit is void of any statement wherein he asserts he worked or arrived to work on time on the dates reflects in the records which show otherwise. Nor does plaintiff present a copy of diary to demonstrate he worked or was attending work related appointments on the disputed dates.
Plaintiff, however, does proffer two affirmation from former employees of defendant which do give rise to material issues of fact. Ms. Syretta Coleman ("Coleman") avers in her affidavit that during plaintiff's tenure as site manager he had to run the office without the benefit of an office manager yet upon his departure one was quickly hired to work with the new site manager. Coleman further avers that plaintiff was required to punch in at the site yet his replacement, a Caucasian was not. Mr. Dwight Freckleton ("Freckleton") avers in his affidavit he worked at many of the sites owned and operated by defendant and he observed that plaintiff, the sole African American site director, was the only one required to punch in at the work sites. These facts which support plaintiff's contentions that he was treated unlike the other site managers, coupled with plaintiff's assertion that his immediate supervisor, Gemma (though disputed by Gemma), spoke to him in a disparaging manner and referred to him as the "Black Guy" and "Black Boss," and disputed facts which turn on questions of credibility, give rises to genuine issue of facts as to whether plaintiff's termination was based on discrimination or on a neutral basis which must be resolved by the jury.
CONCLUSION
Based on the foregoing reasons, the court determines that defendant's motion for summary judgment seeking to dismiss plaintiff's is denied as there exist material issues of fact which must be resolved at trial. Accordingly, the motion is denied in its entirety.
Plaintiff is directed to serve a copy of this decision and order, with notice of entry, upon defendant via certified mail within 21 days hereof.
This constitutes the court's decision and order.
The court notes neither party submitted complete copies of witness deposition testimony and merely submitted excerpts.