Opinion
6062/04.
Decided December 1, 2004.
Upon the foregoing papers, defendants The Brookdale University Hospital and Medical Center (the Hospital) and Catherine Norton Lind (Lind) (collectively referred to as defendants) move for an order, pursuant to CPLR 3211 (a) (1), (5) and (7), dismissing the complaint of plaintiff Nora DuBois on the grounds that the causes of action are barred by the Statute of Limitations and fail to state a claim upon which relief can be granted.
Facts and Procedural Background
Plaintiff is a 66 year-old Black Trinidadian woman who was first hired by the Hospital in 1979 and was promoted and servered as an assistant head nurse in the emergency room at the time of the actions complained of herein. Lind was hired as the director of nursing in approximately 2000, when plaintiff claims that the way she was treated and disciplined changed and Lind began to hire younger and more inexperienced nurses. On March 12, 2003, plaintiff's employment was terminated, allegedly as the result of Lind's discriminatory practices.
Plaintiff commenced this action seeking to recover damages for her termination, predicated upon six causes of action: (1) violations of Human Rights Law § 296 (first cause of action) and of 42 USC § 1981 et seq. (second cause of action), premised upon claims that she was discriminated against because she was a Black Trinidadian woman who was 60 years old, which discrimination created a hostile work environment; (2) violations of the Employee Retirement Income Security Act of 1974, 29 USC § 1001 et seq. (ERISA), premised upon claims that defendants' unlawful conduct deprived plaintiff of her employment benefits by terminating her employment in order to prevent her benefits from vesting (third cause of action); (3) violations of Labor Law §§ 740 and 741 and the First Amendment of the United States Constitution, premised upon claims that her employment was terminated because of her union efforts, the complaints that she filed and whistle blowing (fourth cause of action); (4) breach of her collective bargaining agreement and defendants' policies and procedures (fifth cause of action); and (5) defamation, premised upon the claim that defendants conspired and engaged in a scheme to make false statements and complaints against plaintiff in order to terminate her employment (sixth cause of action).
The complaint further particularizes plaintiff's claims, alleging that after Lind was hired, plaintiff was disciplined on several occasions on spurious charges and ultimately terminated because of her race and age, which she alleges finds support in the fact that the assistant head nurse who replaced her was in her mid-forties. Plaintiff further alleges that defendants harassed her because she filed several complaints with her union, SEIU, Local 1199 (the Union), regarding the danger to the public that she claims was created by Lind's supervision, and because of her participation in union activities. More specifically, on December 12, 2002, plaintiff filed a "notice of unsafe staffing situation." On December 20, 2002, plaintiff was disciplined and suspended for purported poor supervision and scheduling of nursing staff in the walk-up triage area of the emergency department with regard to an incident that occurred on December 9, 2002. On January 22, 2003, plaintiff again filed a "notice of unsafe staffing situation;" on January 28, 2003, she was warned by several co-workers that Lind had bragged that she would fire plaintiff that day.
On January 29, 2003, in an effort to ameliorate the situation, plaintiff filed a charge of unfair labor practices with the National Labor Relations Board (NLRB). On March 6, 2003, when plaintiff spoke with the NLRB agent assigned to her case, she was advised that her complaints of racial discrimination properly belonged before the New York State Division of Human Rights or the United States Equal Employment Commission; she accordingly withdrew her claim on March 6, 2003. The same day, plaintiff was suspended by the Hospital, allegedly due to an incident that occurred on March 5, 2003. According to the termination charge, plaintiff did not delegate a nurse to attend to a patient, although she had been advised of the patient's needs; plaintiff alleges that she was unaware of the situation until her suspension. On March 12, 2003, plaintiff's employment was terminated, shortly before she reached the entitlement age under her Union's entitlement plan.
Pursuant to an order of this court dated July 9, 2004, several of plaintiff's claims were dismissed, including: (1) those portions of her first cause of action, violations of Human Rights Law § 296, as based upon events that predate February 24, 2001; (2) those portions of her second cause of action, violations of 42 USC § 1981, as based upon events that predate February 24, 2000; (3) her third cause of action, alleging violations of ERISA; (4) that portion of her fourth cause of action as is based upon violations of the First Amendment of the United States Constitution; (5) that portion of her fifth cause of action as is based upon claims of breach of contract; and (6) her sixth cause of action, for defamation.
Although the decision did not dismiss that portion of plaintiff's fifth cause of action premised upon breach of the Hospital's policies and procedures, plaintiff fails to address that claim in response to defendants' motion to dismiss. Accordingly, that claim is also found to be lacking in merit, and is dismissed without opposition.
The Parties' Contentions
In support of their motion, defendants argue that plaintiff's employment was terminated for her failure to properly perform her job functions, as is substantiated by her history of disciplinary problems; to evidence this claim, defendants annex copies of written disciplinary notices and complaints concerning plaintiff's conduct. More specifically, on June 5, 1992, plaintiff received a written disciplinary notice from head nurse Sarah Weinreb for an incident of insubordination on May 26, 1992, when plaintiff failed to promptly follow her supervisor's directions regarding attending to an unconscious child and responded to the directions in an insubordinate manner; plaintiff conceded in writing that her verbal response in connection with the May 26, 1992 incident was inappropriate. On October 7, 1994, plaintiff received a disciplinary notice from J. Hibbert and nurse manager Marie Hipps for consistent lateness in violation of the Hospital's excessive lateness and absenteeism rule. On October 30, 1996, plaintiff received written counseling from Hipps for an incident which involved improper communication. On March 26, 2000, a physician complained about plaintiff's argumentative and inappropriate conduct. On October 16, 2000, plaintiff received a written disciplinary notice regarding a September 28, 2000 incident of unprofessional communication with a colleague; plaintiff received a verbal warning that "failure to show improvement will result in progressive discipline up to and including termination." On September 13, 2002, plaintiff was disciplined and suspended for one week for her improper conduct with a physician on September 5, 2002 and for sending a patient to the waiting room without performing triage on September 9, 2002. On December 20, 2002, plaintiff was disciplined and suspended for poor supervision and poor scheduling of the nursing staff in the walk-in triage area of the emergency department. On March 6, 2003, plaintiff was suspended and dismissed for an incident which occurred on the previous day, when a patient fell on Hospital premises after plaintiff had been requested to provide assistance, which incident resulted in her termination. Defendants thus conclude that plaintiff's employment record establishes that she was terminated as a result of her failure to properly assist the patients.
In opposition, plaintiff argues that her complaint states a cause of action for discrimination based upon her race, national origin, ancestry and age in reliance upon her assertion that after Lind was hired as the director of nursing, plaintiff was subject to higher scrutiny, was unfairly suspended and was terminated, while Lind hired younger and more inexperienced nurses. Plaintiff further asserts that she has made a prima facie showing that defendants' discrimination created a hostile work environment, since under Lind's supervision, the demographics of the department also shifted to a younger set of nurses. Similarly, plaintiff claims that she stated a cause of action for retaliatory discrimination because her union duties included the filing of unsafe staffing notices and because she filed a complaint with the NLRB, such activities are protected, and she suffered adverse employment consequences soon thereafter.
Plaintiff also asserts that defendants fail to mention the two decisions rendered in the arbitration of the disciplinary charges against her, in which the Arbitrator's reduced her suspensions and reversed her termination; she annexes copies of these decisions to her papers. An Opinion and Award dated April 21, 2004 addressed plaintiff's one week suspension based upon the incidents that occurred on September 8 and 9, 2002, when she allegedly argued with a doctor with regard to transferring a patient and sent a patient with chest pains to the waiting area without performing appropriate triage, and a two week suspension with regard to incidents that occurred on December 9, 2003, when plaintiff allegedly left the triage area of the emergency department uncovered. The Arbitrator determined that plaintiff's misconduct in overseeing the emergency room on September 9 and December 9, 2002 was sufficiently serious to give the Hospital just cause to suspend her, although the suspensions were excessive and were reduced to one day and two days, respectively; he accordingly ordered that plaintiff should be made whole by revising her personnel record and paying her lost wages.
An Opinion and Award dated May 3, 2004 addressed the issue of plaintiff's termination for the incident that occurred on March 5, 2003, when plaintiff allegedly failed to report that a patient had collapsed in the ambulance bay, as was brought to her attention by a security officer, and is instead claimed to have told the officer that she was off duty and going home, so that he should report to matter to the nurse in charge. After noting the superficial and flawed investigation conducted by Lind, in which she interviewed only the security officer and did not afford plaintiff the opportunity to be heard, the Arbitrator sustained plaintiff's grievance, restored her to her position, and ordered that she be paid lost wages.
With regard to her Whistleblower claim, plaintiff asserts that she claimed that the Hospital employed unsafe nurse to patient ratios, which served to jeopardize patient care and safety. In so arguing, plaintiff relies upon Public Health Law § 2805 b, Public Health Law §§ 2998 and 2998-c, and 10 NYCRR 405.5 (2).
Public Health Law § 2805 b requires every general hospital to admit any person who is in need of immediate hospitalization with all convenient speed, without questioning the patient or any member of his or her family concerning insurance, credit or payment of charges.
Public Health Law §§ 2998 and 2998c establish a patient safety center within the Department of Health and outline its role.
10 NYCRR 405.5 (2) provides, in relevant part, that "[t]he hospital shall provide supervisory and staff personnel for each department or nursing unit to ensure, when needed in accordance with generally accepted standards of nursing practice, the immediate availability of a registered professional nurse for bedside care of any patient."
In response, defendants argue that their motion should be granted, since plaintiff has conceded her misconduct in at least two of the incidents which lead to her termination by submitting the Arbitrators' determinations and she fails to cure any of the deficiencies in her causes of action.
Motion to Dismiss
"On a motion to dismiss pursuant to CPLR 3211, the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" ( Wiesen v. New York Univ., 304 AD2d 459, 460, citing Leon v. Martinez, 84 NY2d 83, 87-88; Peisinger Creative Branding Sys. v. CBS Cable Networks, 299 AD2d 184; Molina v. Phoenix Sound, 297 AD2d 595, 596). As is also relevant here, it has been held that:
"'When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one' ( see Meyer v. Guinta, 262 AD2d 463, 464 [1999]). Likewise, to succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( see Trade Source v. Westchester Wood Works, 290 AD2d 437 [2002])."
( Morris v. Morris, 306 AD2d 449, 451; accord Jorjill Holding v. Grieco Assocs., 6 AD3d 500; see also Berardino v. Ochlan, 2 AD3d 556, 557 [where documentary evidence definitively contradicted the plaintiff's factual allegations and conclusively disposed of the plaintiff's claim, dismissal pursuant to CPLR 3211 (a) (1) was warranted]; Singh v. Queens Ledger Newspaper Group, 2 AD3d 703, 705 [for a CPLR 3211 (a) (1) motion to succeed, the document relied upon must prove that there were no factual issues outstanding with respect to that claim as a matter of law]). A similar rule applies to a motion to dismiss a federal action pursuant to Federal Rules of Civil Procedure 12 (b) (6), since on such a motion, the court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken ( Chapkines v. New York Univ., 2004 US Dist LEXIS 2990, 11-12 [2004], citing Hirsch v. Arthur Andersen Co., 72 F3d 1085, 1092).
Thus, the court may properly consider the disciplinary notices annexed to defendants' moving papers, along with the arbitration awards that plaintiff annexes to her opposition papers. Accordingly, if the documentary evidence submitted flatly contradicts the claims alleged in the complaint, defendants' motion to dismiss must be granted ( see e.g. Prudential Wykagyl/Rittenberg Realty v. Calabria-Maher, 1 AD3d 422, 422-423; see also Grant v. Udoye, 288 AD2d 160, 161 [action was properly dismissed pursuant to CPLR 3211 [a] [1] and [7] where defendants' documentary evidence was sufficient to show, prima facie, that defendants were acting in the discharge of their duties and within the scope of their employment, and therefore could not be held liable for any damages that their actions might have caused plaintiff]).
Plaintiff's Claims of Discrimination
The Law
"The standards for recovery under section 296 of the Executive Law are in accord with Federal standards under title VII of the Civil Rights Act of 1964" ( Ferrante v. American Lung Assoc., 90 NY2d 623, 629, citing 42 USC § 2000e et seq.; Matter of Laverack Haines v. New York State Div. of Human Rights, 88 NY2d 734, 738; Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d 937, 938; accord Forrest v. Jewish Guild for the Blind, 2004 NY LEXIS 3489, 2004 WL 2381195; Mittl v. New York State Div. of Human Rights, 100 NY2d 326). It is well settled that in order to succeed in establishing a claim of discrimination, plaintiff:
As is relevant herein, Executive Law § 296 (1) (a) makes it an "unlawful discriminatory practice for an employer . . . because of the age, race, creed, color, national origin . . . 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."
As is relevant herein, pursuant to 42 USC § 1981, "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . to the full and equal benefit of all laws and proceedings for the security of persons and property."
As is relevant herein, Title VII provides that "it shall be an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin" ( 42 USC § 2000e-2 [a] [1]).
"has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination ( see Ferrante v. American Lung Assoc., 90 NY2d 623, 629 [1997]). The burden then shifts to the employer 'to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision ( id. [citations omitted]). In order to nevertheless succeed on her claim, the plaintiff 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 ( see id. at 629-630)."
( Forrest, 2004 NY LEXIS 3489, 14-15 [2004]; accord McLee v. Chrysler, 109 F3d 130, 134; Jenkins v. Bd. of Educ., 64 Fed Appx 801, 804 [2003], citing McDonnell Douglas v. Green, 411 US 792, 802). Further, "[a] plaintiff can establish an inference of discrimination by demonstrating disparate treatment based on sex or by proffering evidence of 'the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group'" ( Ferrand v. Credit Lyonnais, 2003 US Dist LEXIS 17202, 13-14 [2003], reconsideration denied 292 F Supp 2d 518, affd 110 Fed Appx 160 [2004], citing Tramble v. Columbia Univ., 1999 US Dist LEXIS 1274, 1999 WL 61826, 5, citing Taylor v. Runyon, 1997 US Dist LEXIS 18484, 1997 WL 727488, 5 and Chojar v. Levitt, 773 F Supp 645, 653).
In order to refute a plaintiff's prima facie showing of discrimination:
"defendants need only articulate the existence of a non-discriminatory reason for an adverse action that, if believed by a fact-finder, would support a judgment in defendants' favor. See St. Mary's Honor Center v. Hicks, 509 US 502, 507 [1993]. 'The employer need not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior.' Greenway v. Buffalo Hilton Hotel, 143 F3d 47, 52 [1998]."
(Arrocha v. City Univ., 2004 US Dist LEXIS 4486, 13-14 [2004]; see also King v. Brooklyn Sports Club, 305 AD2d 465 [defendants demonstrated the absence of a prima facie case of discrimination under Executive Law § 296 and that they had a facially valid, independent, and nondiscriminatory reason for the termination of the plaintiff's employment in reliance upon excerpts of the plaintiff's examination before trial at which she testified that she did not believe she was discriminated against because she was a woman or because of her race]; Birk v. New York City Tr. Auth., 304 AD2d 319 [the complaint, which alleged that plaintiff was subjected to impermissible workplace discrimination by reason of a medical disability, was properly dismissed since defendant employer set forth a legitimate, nondiscriminatory reason for the alleged adverse employment action and plaintiff did not, in response, meet his burden to raise a triable issue as to whether defendant's proffered reason was a mere pretext]; Oross v. Good Samaritan Hosp., 300 AD2d 457, 458 [the defendant Hospital established its entitlement to judgment as a matter of law on the discrimination claim by submitting evidence demonstrating that the plaintiff was terminated from her job as a result of her misconduct and not as a result of discrimination]). In this regard, however,
"'[i]t is not enough . . . to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination ( St. Mary's Honor Ctr. v. Hicks, 509 US, at 519 [emphasis in original]) for plaintiff to prevail. Thus, even if the employer's reason is 'unpersuasive, or even obviously contrived' ( St. Mary's Honor Ctr. v. Hicks, 509 US, at 524), plaintiff always has the ultimate burden of proof to show that intentional discrimination has occurred under a consideration of all the evidence ( Texas Dept. of Community Affairs v. Burdine, 450 US, at 253; St. Mary's Honor Ctr. v. Hicks, 509 US, at 507-508)."
( Ferrante, 90 NY2d at 630; accord Boise v. New York Univ., 2003 US Dist LEXIS 18639, 8-9 [2003]).
In order to establish that an adverse employment action resulted from a defendant's alleged discrimination, a plaintiff must demonstrate:
"a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation'( Galabya v. New York City Bd. of Educ., 202 F3d 636, 640 [2000] [citations and internal quotation marks omitted]."
( Forrest, 2004 NY LEXIS 3489 at 17; accord Patrolmen's Benevolent Assoc. v. City of New York, 310 F3d 43, 51, cert denied 538 US 1032; Crady v. Liberty Natl. Bank Trust Co., 993 F2d 132, 136. Thus, for example, an adverse employment action is not established by proof of excessive work, denials of requests for leave with pay and a supervisor's general negative treatment ( id. at 19, citing Fridia v. Henderson, 2000 US Dist LEXIS 17295, 22, 2000 WL 1772779, 7, or by evidence of being yelled at, receiving unfair criticism, or receiving unfavorable schedules or work assignments ( id., citing Katz v. Beth Israel Med. Ctr., 2001 US Dist LEXIS 29, 44, 2001 WL 11064, 14). In contrast, a discriminatory intent may be inferred "from criticism of plaintiff's performance in individious or ethnically degrading terms, individious comments about others in plaintiff's protected group, or the sequence of events leading to the negative employment action" ( Little v. NBC, 210 F Supp 2d 330, 377, citing Pimentel v. City of New York, 2001 US Dist LEXIS 20426, 2001 WL 1579553, at 4-5, citing Chambers v. TRM Copy Ctr., 43 F3d 29, 37, 38).
In the alternative, a plaintiff can establish a claim that he or she suffered disparate treatment in the workplace through proof that he or she has been subjected to a hostile work environment. The standard for establishing a hostile work environment claim is a demanding one ( see e.g. Scott v. Memorial Sloan-Kettering Cancer Ctr., 190 F Supp 2d 590, 599):
"A racially hostile work environment exists 'when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' ( Harris v. Forklift Systems, Inc., 510 US 17, 21 [1993] [citations and internal quotation marks omitted]). . . .
"Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, 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 an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive' ( id. at 23). Moreover, the conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so ( see id. at 21)."
. . .
"A hostile work environment requires 'more than a few isolated incidents of racial enmity' ( Snell v. Suffolk County, 782 F2d 1094, 1103 [1986]). 'Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments' ( Schwapp v. Town of Avon, 118 F3d 106, 110 [1997] [citation omitted]; see also Harris, 510 US at 21 [citations and internal quotation marks omitted] ['mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment']; Brown v. Coach Stores, Inc., 163 F3d 706, 713 [1998] [no hostile work environment where supervisor made, on occasion, racist remarks, including one directed at the plaintiff])."
( Forrest, 2004 NY LEXIS 3489 at 27-29 [2004]).
In describing conduct that has been held sufficient to create a hostile work environment:
"Courts have found that a series of racist comments directed at an employee can create a hostile work environment. See Schwapp, 118 F3d at 112. Similarly, vulgar comments and gestures directed at employees can be sufficiently offensive, pervasive and continuous to constitute a sexually hostile work environment. See Kotcher v. Rosa Sullivan Appliance Ctr., 957 F2d 59, 61, 63. Offensive displays can also create a hostile work environment. For example, courts have found sexual harassment based on a hostile work environment where employees were subjected to 'the display of obscene visual representations or the communication of sexually offensive remarks.' Iannone v. Frederic R. Harris, Inc., 941 F Supp 403, 411 (SDNY 1996). Similarly, the posting of Ku Klux Klan literature and the use of racial epithets, without more, may create a hostile work environment if sufficiently continuous and pervasive. See Snell, 782 F2d at 1103."
( Little, 210 F Supp 2d at 389). Thus, for example, a hostile work environment was found to exist where an employee of defendant used a "weird Spanish accent" when talking to Hispanic people and described Hispanics as being "very greasy;" a Ku Klux Klan robe was seen outside of a door; and a noose was seen hanging, with the name of an African-American co-worker's name attached to the rope ( id. at 390). In contrast, the testimony of plaintiff and his coworker describing generalized feelings of discomfort falls well short of the proof required to show a hostile work environment ( Williams v. County of Westchester, 171 F3d 98, 101).
A plaintiff can also succeed in establishing a claim of discrimination if he or she demonstrates that he or she suffered an adverse employment action in retaliation for protected activities. Pursuant to Executive Law § 296 (7), it is unlawful to retaliate against an employee for opposing discriminatory practices. Retaliatory action is also prohibited pursuant to 42 USC § 2000e-3 (a), which provides that it is unlawful "for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." In order to establish a claim of retaliatory discrimination:
"plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action."
( Forrest, 2004 NY LEXIS 3489 at 33; accord Hughes v. Derwinski, 967 F2d 1168, 1174).
"The causal connection needed for proof of a retaliation claim '"can be established indirectly by showing that the protected activity was closely followed in time by the adverse action."'" ( Cifra v. GE, 252 F3d 205, 217 quoting Reed v. Lawrence Co., 95 F3d 1170, 1178, quoting Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F2d 590, 593; accord Feingold v. New York, 366 F3d 138, 156-157 [proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action]). It has also been recognized, however, that "[a]s a matter of law, 'the mere fact that the incidents of which a plaintiff complains occurred after . . . grievances were filed does not create an issue of fact as to causality'" ( Feliciano v. Alpha Sector, 2002 US Dist LEXIS 12631, 35, 2002 WL 1492139, 12, quoting O'Dell v. Trans World Entertainment, 153 F Supp 2d 378, 396, quoting Ali v. Mount Sinai Hosp., 1996 US Dist LEXIS 8079, 1996 WL 325585, 9, n. 9 [1996]; see generally Slattery v. Swiss Reinsurance Am., 248 F3d 87, 95 [although it is true that temporal proximity can demonstrate a causal nexus necessary to establish retaliatory discrimination, an inference of retaliation did not arise where the adverse employment actions complained of were the ultimate product of an extensive period of progressive discipline which began five months prior to plaintiff's filing of the EEOC charges, so that the gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity]; Hughes, 967 F2d 1168, 1174-1175 [plaintiff failed to establish a causal connection between the protected expression and the adverse action by showing that the issuance of the two disciplinary letters closely followed his formal discrimination complaint, since four months elapsed between plaintiff's filing and his receipt of the first disciplinary letter and that more than three years passed between the date of his filing of his discrimination complaint and his receipt of the second disciplinary letter]). Indeed, it has been noted that "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close'" ( Boise, 2003 US Dist LEXIS 18639 at 24-25, citing Clark Co. Sch. Dist. v. Breeden, 532 US 268, 273-74, citing Richmond v. ONEOK, 120 F3d 205, 209 [holding three-month period insufficient to establish causal connection], and Hughes, 967 F2d at 1174-75 [four-month period insufficient]).
Discussion
In applying the above general principles of law to the facts of this case, it must first be noted that although plaintiff alleges that she suffered discrimination because of her race, national origin and age, her assertions are insufficient to state a cause of action in that they are devoid of any factual allegations to support her conclusion ( see Best v. Peninsula New York Hotel Mgmt., 309 AD2d 524, citing Jordan v. American Intl. Group, 283 AD2d 611, lv dismissed 97 NY2d 743; see also Roberson v. Bowie St. Univ., 899 F Supp 235, 238 [under Federal Rules of Civil Procedure 12 (b) (6), bare allegations that negative consequences occurred because one was black or because one complained about employment practices did not satisfy the level of pleading required to state a claim of intentional racial discrimination]; Mobayed v. Kleinfeld, 1999 US App LEXIS 2188 [1999] [because plaintiff's allegations of discrimination were wholly conclusory and failed to allege facts adequate to support a finding that defendant discriminated against her, dismissal of her complaint was proper]). Dismissal of plaintiff's claims of discrimination is accordingly appropriate on this ground alone.
Although 42 USC § 1981 does not prohibit discrimination based on national origin, since the Supreme Court has concluded that Congress intended to prohibit discrimination solely based on an individual's "ancestry or ethnic characteristics," plaintiff alleges that she is a black female from Trinidad. Hence, the national origin acknowledgment is merely descriptive and the section 1981 claims are, at bottom, based on plaintiff's ancestry and ethnicity and, more specifically, her racial identity ( see e.g. Nicholls v. Brookdale Univ. Hosp. Med. Ctr., 2004 US Dist LEXIS 12816, 20-22 [2004]).
Further, however, even assuming that plaintiff made a prima facie showing of discrimination, defendants have demonstrated the absence of a prima facie case of discrimination in that it had a facially valid, independent, and nondiscriminatory reason to discharge the plaintiff in reliance upon plaintiff's disciplinary record, as evidenced by the numerous notices annexed to the moving papers. Plaintiff's submission of the arbitration awards serves to substantiate this conclusion, since one of the arbitrators upheld two of her suspensions, albeit subject to a reduction in time. In addition, plaintiff is precluded from relitigating any matter previously litigated in the prior arbitration proceedings ( see e.g. Cooks v. New York City Tr. Auth., 289 AD2d 278, 279 [plaintiff was precluded from relitigating any matter litigated in the prior arbitration proceeding, including whether the misconduct actually occurred where a prior arbitration award, which was confirmed by the court, determined that plaintiff was guilty of misconduct justifying his discharge from employment]). The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior proceeding and decided against that party or those in privity, so that plaintiff is bound by the arbitration award to the extent that the issues resolved during the arbitration proceeding are relevant to the instant proceeding ( see QDR Consultants Dev. v. Colonia Ins. Co., 251 AD2d 641, lv denied 92 NY2d 814; accord Azevedo Boyle Contr. v. Greaney Constr., 285 AD2d 571, 572 [it is well settled that the doctrine of collateral estoppel is applicable to issues resolved in an earlier arbitration proceeding]). Herein, plaintiff does not argue, nor could she succeed in contending that the issues concerning her misconduct were not fully addressed in the prior arbitration proceedings, wherein she was represented by an attorney from her Union.
It is also significant to note that the determination of the arbitrator does not preclude the plaintiff from commencing a separate, independent action based on unlawful discrimination, although an arbitrator's award is generally given preclusive effect in a subsequent judicial proceeding ( see Uryevick v. Pepcom Indus., 155 AD2d 450 [1989], citing Clemens v. Apple, 65 NY2d 746 [1985]; Ryan v. New York Tel. Co., 62 NY2d 494 [1984]; see generally Wright v. Universal Mar. Serv., 525 US 70, 75 [1998]; Alexander v. Gardner-Denver Co., 415 US 36 [1974]; Rourke v. New York State Dept. of Correctional Servs., 201 AD2d 179 [1994]): "'a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent "evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes". . . The agreement must be clear, explicit and unequivocal . . . and must not depend upon implication or subtlety' ( Matter of Waldron [Goddess], 61 NY2d 181, 183-184, quoting Schubtex, Inc. v. Allen Snyder, Inc., 49 NY2d 1, 6 [citations omitted]; see, Wright v. Universal Mar. Serv. Corp., 525 US 70; see also, Alexander v. Gardner-Denver Co., 415 US 36)." ( Grovesteen v. New York State Pub. Empls. Fedn, 265 AD2d 784, 785 [1999]). Inasmuch as defendants point to no agreement that unequivocally obligates plaintiff to arbitrate her claims, she remains free to litigate her discrimination claims ( see generally Crespo v. 160 West End Ave. Owners, 253 AD2d 28, 32-33 [1999] [since there is no clear and unequivocal agreement to arbitrate statutory claims of age discrimination, the claim asserted by plaintiff did not fall within the terms of the arbitration agreement and arbitration of the present dispute is not required]).
Further, in response to defendants' showing of a nondiscriminatory motive, plaintiff failed to come forward with evidence that "race, color, religion, sex, or national origin was a motivating factor for any employment practice" ( Desert Palace v. Costa, 539 US 90, 101, quoting § 2000e-2 [m]). More specifically, plaintiff produced nothing beyond bare, unsubstantiated assertions of animus toward her because of her race, national origin and age. Thus, it must be concluded that plaintiff was disciplined not because of unlawful discrimination, but because of her unsatisfactory job performance ( see Pramdip v. Building Serv. 32B-J Health Fund, 308 AD2d 523, 524; accord Laub v. St. Vincent's Med. Ctr., 306 AD2d 322, 323 [defendant established valid nondiscriminatory reasons for plaintiff's discharge where the evidence submitted demonstrated that plaintiff had been given two written warnings regarding absenteeism, had committed an error in submitting documentation accompanying a urine specimen, and had a substandard job performance evaluation, all of which violated the terms of employment to which she had agreed]; Oross, 300 AD2d at 458 [defendant hospital established its entitlement to judgment as a matter of law on the issue of whether plaintiff was terminated because of her gender by submitting evidence demonstrating that the plaintiff was terminated from her job as a result of her misconduct and not as a result of discrimination]; Berner v. Gay Men's Health Crisis, 295 AD2d 119, 120 [plaintiff failed to raise an issue of fact as to whether defendant's legitimate nondiscriminatory reason for terminating her was pretextual where the record established that the supervisor had expressed increasing displeasure with plaintiff's job performance for more than a year prior to her termination]; Jordan, 283 AD2d at 612 [there was ample evidence that the plaintiff was discharged, not because of unlawful discrimination, but because of her unsatisfactory job performance]; Perez v. Presbyterian Hosp., 277 AD2d 57, 57-58 [defendant met its burden of rebutting plaintiff's prima facie case of discrimination by showing that plaintiff was terminated because of an act of misconduct, which act plaintiff did not deny and in response, plaintiff failed to adduce evidence sufficient to raise a triable issue of fact as to her contention that the reason stated by defendant was pretextual]; Jenkins, 64 Fed Appx 801 [2003)] [even if the unsatisfactory evaluation purportedly received by plaintiff, an African-American public school teacher, after he filed grievances, was an adverse employment action for purposes of his Title VII retaliation claims, defendant proffered ample evidence that the unsatisfactory rating was deserved]).
In addition, plaintiff has failed to establish any adverse employment action premised upon her other claims of discrimination. In this regard, it has been held that "'[d]isciplinary notices, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation'" ( Lewis v. Snow, 2003 US Dist LEXIS 15700 [2003], quoting Lumhoo v. Home Depot, 229 F Supp 2d 121, 150; Bennett v. Watson Wyatt Co., 136 F Supp 2d 236, 248 [reprimands and threats of disciplinary action do not constitute adverse employment actions]). Moreover, since plaintiff's termination was reversed by the arbitrator, the filing of the underlying charge against plaintiff did not result in an adverse action because it was ultimately determined to be without merit ( see generally Yerdon v. Henry, 91 F3d 370, 378 [the filing of internal union charges against plaintiff did not constitute retaliation because the charges had not been adjudicated and if they were ultimately dismissed, plaintiff would not have suffered any adverse effect from them]; Washington v. County of Rockland, 211 F Supp 2d 507, 514, affd 373 F3d 310 [the maintenance of disciplinary charges and formal hearings against plaintiffs did not constitute adverse employment action sufficient to state a prima facie case for retaliation under § 1983 where the charges were dismissed after the hearings, and any loss of pay suffered by plaintiffs was reinstated; no other disciplinary actions were taken against plaintiffs as a result of these charges; and it was unclear how the ultimately dismissed disciplinary charges affected the terms, privileges, duration or conditions of plaintiffs employment]; Almonte v. Coca-Cola Bottling Co., 959 F Supp 569 [plaintiff could not recover under 42 USC § 1981 for his earlier termination because he was ultimately reinstated with full back pay and benefits and therefore suffered no adverse employment action]; Jenkins, 64 Fed Appx 801 [2003] [African-American public school teacher failed to establish a prima facie case of race or gender discrimination under Title VII when the principal's alleged threat to give him an unsatisfactory evaluation was not shown to be based upon race or gender, and therefore the teacher alleged no facts showing that he suffered adverse employment action which was motivated by discrimination]; White v. United States Postal Serv., 2003 US Dist LEXIS 17452, 19-21 [2003] [since an arbitrator found that plaintiff had been discharged from his position at the USPS without just cause and reinstated him to his former position, with full back pay and all other benefits and entitlements, there was no adverse employment action to challenge, citing Hill v. Children's Village, 196 F Supp 2d 389, 397 [where plaintiff was reinstated to her position at the same wage with full back pay, benefits and seniority, no tangible employment action was established]; Powell v. Consolidated Edison Co., 2001 US Dist LEXIS 2706, 2001 WL 262583, 8, n. 9 [2001] [where plaintiff's termination was reversed and he was reinstated following a union grievance proceeding, no adverse employment action occurred]; Wilson v. Consolidated Edison Co., 2000 US Dist LEXIS 3895, 2000 WL 335733, 8, n. 14 [2000] [plaintiff's reinstatement would negate any adverse employment action relating to his termination]; Lumhoo, 229 F Supp 2d at 138-39 [plaintiff's assertion that he suffered an adverse employment action when defendants discharged him failed as a matter of law because defendants offered, and plaintiff accepted, an unconditional offer of reinstatement with full back pay, the same salary and benefits, and the same seniority status]; Amna v. Montefiore Med. Ctr., 1999 US App LEXIS 19257 [1999] [plaintiff suffered no adverse employment action on which to base a retaliation claim since, as the result of a settlement agreement made by the parties, she was fully compensated for lost wages and the suspensions were expunged from her record]).
Similarly, plaintiff has failed to allege sufficient facts to establish that the claimed discrimination against her created a hostile work environment. In this regard, plaintiff does not allege in her complaint or in her opposition papers that anyone employed at the Hospital ever made any derogatory comments about her age, race or nationality, or engaged in any other offensive of discriminatory behavior. Thus, plaintiff's claims as premised upon a hostile work environment are dismissed ( see e.g. Chandler v. Amr Am. Eagle Airline, 251 F Supp 2d 1173, 1185-1186 [plaintiff did not provide sufficient evidence to support his hostile work environment claim where he did not allege harassing comments sufficiently pervasive, either from a subjective or objective perspective, to establish a hostile work environment; while plaintiff testified that defendants constantly called him a "f . . . ing old man," he identified only three specific occasions on which such derogatory language was used, he did not allege that he was ever asked to perform tasks that exceeded his normal job duties or were humiliating or demeaning; the other two complained of incidents occurred over a year apart and more than a year prior to plaintiff's filing of his EEOC complaint; and plaintiff continued to work with both men following the complained of incidents]; Scott, 190 F Supp 2d at 599 [plaintiff could not possibly base a hostile work environment claim on Title VII or ADEA where she did not allege that anyone at defendant hospital made comments related to her age, gender or race at any time]; Kodengada v. IBM, 88 F Supp 2d 236, 242-243, affd 242 F3d 366 [2000] [plaintiff failed to establish a hostile work environment based upon six comments by defendant over a period of seven months, where the comments made did not involve any physical threat or humiliation and included a comment in which a co-worker was referred to as a "black boy"]; Cooper v. Morgenthau, 2001 US Dist LEXIS 10904 [2001] [the facts did not objectively support a finding that the conditions at the District Attorney's office constituted a hostile work environment where the incidents complained of were a few alleged comments with age or racial overtones, which were interspersed over a two-year period, uniformly tepid, and often were not directed toward plaintiff]); Stembridge v. City of New York, 88 F Supp 2d 276, 286, affd 2000 US App LEXIS 38697 [2000] [seven incidents, including two instances of racial epithets uttered by supervisors toward plaintiffs over three years did not establish a hostile work environment]; Carter v. Cornell Univ., 976 F Supp 224, [1997], affd 159 F3d 1345 [1998] [six race-related disparaging comments over three years did not create a hostile work environment]; cf. Lumhoo, 229 F Supp 2d at 155 [plaintiff established that his working conditions were altered for the worse where over the course of five to seven months, various management employees, as well as a co-worker, used the word "nigger" in his presence; referred to an African-American as a "moolie," "black son of a bitch," "tar baby," and a "porch monkey;" made a joke that disparaged blacks and referred to them as "jungle bunnies;" and addressed black individuals as "you people," since such comments, when considered together, were sufficiently severe and pervasive to constitute a pattern of harassment]).
Plaintiff's Whistleblower Claim
The Law
As is relevant here, Labor Law § 740 (2) provides that:
"An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following:
"(a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety;
"(b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or
"(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation."
It is well settled that to be entitled to the protection of this provision, there must be an actual violation of a law, rule or regulation ( Pail v. Precise Imports, 256 AD2d 73, 74, citing Bordell v. General Elec. Co., 88 NY2d 869; Capobianco v. American Stock Exch., 233 AD2d 189, lv denied 89 NY2d 810). In addition, a review of the legislative history compels the conclusion that the conduct complained of must create a "substantial and specific danger to the public health or safety" ( Remba v. Federation Employment Guidance Serv., 76 NY2d 801, 802, see also Quirk v. Emergency Hous. Group, 305 AD2d 390).
Herein, plaintiff does not allege an actual violation of any specific law, rule, or regulation in her complaint or her affidavit submitted in opposition to the defendants' motion for summary judgment. Instead, she relies upon her own uncorroborated and unsubstantiated opinion that staffing in the emergency room created an unsafe condition. Thus, since her claim amounts to no more than "a reasonable belief of a possible violation," it is insufficient to support a claim under Labor Law § 740 ( see e.g. Khan v. State Univ. of New York Health Science Ctr., 288 AD2d 350, 351 [to sustain a cause of action to recover damages under Labor Law § 740, an employee must plead and prove that the employer engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation; an employee's good-faith reasonable belief that an actual violation of a law, rule, or regulation occurred is insufficient]; Pail, 256 AD2d at 74 [an employee's good faith but erroneous belief that a violation of a law, rule or regulation is insufficient to support a cause of action under Labor Law § 740 (7)]).
In addition, plaintiff has failed to establish that the actions complained of created a substantial danger to public health and safety ( see e.g. Green v. Saratoga A.R.C., 233 AD2d 821, 822-823; cf. Gay v. Farella, 5 AD3d 540, 542 [plaintiff's allegations that defendant violated specific federal and state safety and health guidelines by improperly manufacturing and storing lead containers containing radioactive materials, and causing lead paint and toxic chemicals to leach into the surrounding water supply, were sufficient to sustain a cause of action for violation of the statute]; Finkelstein v. Cornell Univ. Med. College, 269 AD2d 114, 116 [plaintiff implicated the Whistleblower's law under circumstances where he alleged that his colleague was practicing medicine at defendant hospital while impaired by a psychiatric disability, which represented a substantial danger to the public health and safety]). In so holding, the court also notes that the provisions of the Public Health Law and the New York State Code of Rules and Regulations do nothing to alter this conclusion, since none of the sections relied upon are applicable to the Hospital.
Similarly, plaintiff has failed to establish that any activity, policy, or practice that she objected to, refused to participate in, disclosed, or threatened to disclose ( Radice v. Elderplan, 217 AD2d 690, 691). In addition, as was discussed above, plaintiff has failed to identify any retaliatory personnel action taken by the defendants because of her threatened disclosure of any alleged violations ( see Blumenreich v. North Shore Health Sys., 287 AD2d 529, 530-531, citing Lambert v. General Elec. Co., 244 AD2d 841; Hookman v. Lenox Hill Hosp., 241 AD2d 333; Rodgers v. Lenox Hill Hosp., 211 AD2d 248).
Waiver of Other Causes of Action
As is also relevant here, Labor Law § 740 (7) provides that:
"Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law."
"Although the wording of the statute suggests that a § 740 plaintiff's waiver of other remedies is absolute, the Courts have limited this waiver to all claims that 'arise out of the same acts' as those that gave rise to the Labor Law § 740 claim, and/or that 'relate to' the retaliatory action(s) on which the § 740 claim is based" ( see e.g. Bordan v. North Shore Univ. Hosp., 275 AD2d 335, 336 [breach of contract claim was properly dismissed as arising from the same facts as those on which the Labor Law § 740 claim was based; the cause of action to recover damages for tortious interference with contract was separate and independent from the Labor Law § 740 claim, and should not have been similarly dismissed]; accord Owitz v. Beth Israel Med. Ctr., 1 Misc 3d 912 (A) [2004]; see also Collette v. St. Luke's Roosevelt Hosp., 132 F Supp 2d 256, 274 [after carefully considering the text of the Whistleblower Act as strictly construed by the New York Court of Appeals, its underlying purposes as described in its legislative history, and the important guidance provided by its practice commentaries, the waiver provision of Labor Law § 740 was held to apply only to rights and remedies concerning whistleblowing as defined in the Act]; Nicholls, 2004 US Dist LEXIS 12816 at 17 [2004] [the § 740 (7) waiver applies only to causes of action that arise from the same course of conduct as the retaliatory action]).
Applying the above analysis here, only those causes of action which allege that defendants retaliated against plaintiff for filing notices of unsafe staffing, for her union activities and for the filing of a complaint with the NLRB give rise to the Labor Law § 740 claim, while her other claims are premised upon defendants' alleged violations of State and federal law against discrimination. Accordingly, those causes of action that are related to the retaliatory actions must alternatively be dismissed as barred in accordance with Labor Law § 740 ( see generally Pipas v. Syracuse Home Assoc., 226 AD2d 1097, lv denied 88 NY2d 810 [defendants' motion for summary judgment dismissing the complaint was properly granted since his tort causes of action, which related to the retaliatory discharge, were barred by his election to assert a Labor Law § 740 cause of action]; Feinman v. Morgan Stanley Dean Witter, 193 Misc 2d 496, 498 [the institution of an action pursuant to Labor Law § 740 bars claims which arise out of the same facts as give rise to the claim brought under that section]).
"By parity of reasoning, a plaintiff may not tacitly concede that his Labor Law § 740 claim has no merit and seek to withdraw it in order to preserve his other causes of action, where all claims arose out of the same course of conduct and concern his alleged retaliatory discharge ( Owitz, 1 Misc 3d 912 (A), citing Rotwein v. Sunharbor Manor Residential Health Care Facility, supra, at pp. 853-855). Thus, "although 'leave to amend a pleading should be freely given upon such terms as may be just' (CPLR § 3025(b), it is inappropriate to grant leave to amend when the amendment would not survive a motion to dismiss, inter alia because plaintiff's three remaining causes of action simply reiterate his § 740 claim in other forms" ( id.).
Leave to Replead
In seeking leave to replead her remaining causes of action, plaintiff fails to annex a proposed amended pleading. More significantly, she alleges no facts to demonstrate that she could correct the defects in her causes of action.
Accordingly, plaintiff's request for leave to replead is denied ( see e.g. Latture v. Smith, 1 AD3d 408, 409 [the court improvidently exercised its discretion in granting the plaintiff's cross application for leave to replead pursuant to CPLR 3211 (e), since he did not set forth "good ground" to support his cause of action]; Josephs v. Bank of New York, 302 AD2d 318, 319 [since plaintiff failed to demonstrate good ground for her cause of action, her cross motion to amend the complaint to replead that cause was properly denied]; Montefiore v. Soja, 292 AD2d 241, 242 [inasmuch as plaintiff's claims were found to be lacking in merit, leave to replead was properly denied]; Gold Mechanical Contractors v. Lloyds Bank, 197 AD2d 384, 385 [leave to replead was properly denied since plaintiffs failed to establish that they would be able to state a viable cause of action]).
Conclusion
For the foregoing reasons, defendants' motion for an order dismissing the complaint is granted.
The foregoing constitutes the order, decision and judgment of this court.