Summary
holding a “few and isolated” discriminatory statements were insufficient to establish an inference of discrimination, absent further indicia of discrimination
Summary of this case from Johnson v. N.Y.C. Dep't of Educ.Opinion
04 Civ. 3207 (WHP).
July 19, 2006
MEMORANDUM AND ORDER
Plaintiff Nankumarie Gobin ("Plaintiff" or "Gobin"), a Hindu Guyanese woman, brings this employment discrimination and retaliation action against New York City Health and Hospitals Corporation ("NYCHHC" or "Defendant") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant moves for summary judgment under Fed.R.Civ.P. 56. For the following reasons, the motion is granted.
In her Complaint, Plaintiff named her former employers Woodhull Medical and Health Center ("Woodhull") and Cumberland Diagnostic and Treatment Center ("Cumberland") as defendants. Because Woodhull and Cumberland are hospitals within NYCHHC that cannot be sued, the parties agreed to substitute NYCHHC as the appropriate defendant in this action. (Stipulation Order, dated Nov. 14, 2005.)
This Court declines to deem the facts set forth in Defendant's Local Rule 56.1 Statement admitted based on Plaintiff's failure to submit a counter-statement. Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001) ("A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.").
BACKGROUND
In October 2001, Plaintiff began working as an Assistant Coordinating Manager for Patricia Smith ("Smith") in the Patient Accounts/Finance Department at Woodhull. (Plaintiff's Affidavit in Opposition, dated Aug. 26, 2005 ("Pl. Aff.") ¶¶ 7-8.) Smith, an African-American woman, interviewed and recommended Gobin for the position. (Defendant's Local Rule 56.1 Statement, dated July 22, 2005 ("Def. 56.1 Stmt.") ¶ 1.) Shortly after Gobin started working at Woodhull, Smith was transferred to Cumberland and approximately six months later, Gobin followed her there. (Pl. Aff. ¶ 7.)
From that time through her termination in January 2004, Gobin alleges that Smith and certain other African-American employees at Cumberland made discriminatory remarks regarding her race, color, religion and national origin. (Pl. Aff. ¶ 8.) Gobin asserts that these statements included: "Hinduism is not even a real religion," "you are a devil worshiper because you are a Hindu," and "West Indians are low class people." (Pl. Aff. ¶ 8.) Gobin further contends that Smith stated she would rather work with an African-American than with Gobin and that "the hospital belongs to black people." (Pl. Aff. ¶ 8.) Smith denies making any such statements. (Declaration of Holly R. Winefsky, dated July 22, 2005 ("Winefsky Decl.") Ex. N: Response to EEOC Charge, dated Mar. 12, 2004 at 2.)
In February 2003, Gobin met with Dorothy Wright ("Wright"), the Associate Director of EEO Affirmative Action, to report these incidents. (Pl. Aff. ¶ 9.) Following that meeting, Gobin asserts that her position was changed to one with less responsibility reporting to a different supervisor, Shirley Holliday ("Holliday"). (Pl. Aff. ¶ 9.) Defendant disagrees with Gobin's characterization and maintains that Plaintiff merely received additional duties that she did not wish to assume. (Declaration of John Joseph Perez, dated July 21, 2005 ¶ 3; see Defendant's Reply Memorandum of Law, dated Sept. 6, 2005 at 7.)
Following the February 2003 meeting with Wright, Gobin contends that she received several unsubstantiated written warnings in retaliation for her complaints about Smith and the other employees. (Pl. Aff. ¶ 11.) For example, on June 16, 2003, she received a "write-up" from Smith stating that Gobin left work without authorization. (Pl. Aff. ¶ 11 Ex. H: Memorandum from Smith to Gobin, dated June 16, 2003.) Later, in September 2003, she received a warning from Venroy Wint ("Wint"), Patients Account Manager, for inappropriately pointing at a patient. (Pl. Aff. ¶ 11 Ex. I: Memorandum from Wint to Gobin, dated Sept. 19, 2003.) While Gobin acknowledged receipt of these written admonitions, she maintains that the accusations were false and designed to harass her. (Pl's. Aff. ¶ 11.)
In March 2003, Gobin received a Notice and Statement of Charges concerning four different acts of misconduct. (Def. 56.1 Stmt. ¶ 4; Winefsky Decl. Ex. E: Notice and Statement of Charges, dated Mar. 19, 2003.) Specifically, Plaintiff was charged with: (1) calling Smith a liar in the presence of other staff members; (2) changing the official copy of her performance evaluation for the period April 29, 2002 through July 29, 2002; (3) changing the official copy of her performance evaluation for the period July 29, 2002 through October 29, 2002; and (4) taking a diskette containing copies of the above performance evaluations from Smith without permission. (Def. 56.1 Stmt. ¶ 4; Winefsky Decl. Ex. E.)
Gobin was represented by her union in the ensuing disciplinary proceedings. In the first stage of the proceedings, the Conference Officer found that Gobin engaged in the misconduct and recommended her termination. (Winefsky Decl. Ex. F: Step I(A) Findings and Recommendation.) In particular, the Conference Officer concluded that Gobin "lacks judgment, trust and reliability." (Winefsky Decl. Ex. F at 5.) This determination was affirmed in Gobin's subsequent appeals. (Winefsky Decl. Ex. G: Step II Decision, dated Dec. 21, 2003; Winefsky Decl. Ex. I: Step III Decision, dated Mar. 2, 2005.) Plaintiff was terminated on January 9, 2004. (Winefsky Decl. Ex. J: Termination Letter, dated Jan. 9, 2004.)
On January 27, 2004, Gobin filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that Defendant discriminated and retaliated against her. (Complaint, dated Apr. 10, 2004 ("Compl.") ¶ 10 Ex. A: EEOC Charge; Def. 56.1 Stmt. ¶ 9.) The EEOC investigated the matter and concluded that "the evidence fails to indicate that a violation of the laws occurred." (Compl. Ex. A: EEOC Notice of Dismissal and Right to Sue.) Accordingly, Plaintiff was issued a Notice of Dismissal and Right to Sue. (Compl. Ex. A.) It is undisputed that Plaintiff timely commenced this action within ninety days of receiving her Right to Sue letter.
Defendant argues that Gobin cannot assert a color discrimination claim because such a claim was not included in her EEOC charge. This Court disagrees. A district court has jurisdiction over claims that were either included in or "reasonably related" the allegations in an EEOC charge. Williams v. New York City Hous. Auth., ___ F.3d ___, No. 04 Civ. 2531 (2d Cir. July 19, 2006); Holtz v. Rockefeller Co., 258 F.3d 62, 83 (2d Cir. 2001); Butts v. City of New York Dep't of Hous. Pres. Dev.., 990 F.2d 1397, 1401 (2d Cir. 1993). Because Plaintiff's claim based on her color stems from the same facts as her other discrimination claims, this Court concludes such claim is reasonably related to the allegations contained in her EEOC charge.
DISCUSSION
1. Summary Judgment StandardSummary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986);Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing the absence of any genuine dispute as to a material fact. Grady v. Affiliated Cent. Inc., 130 F.3d 553, 559 (2d Cir. 1997). Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In deciding whether there is a genuine issue for trial, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor."Liberty Lobby Inc., 477 U.S. at 255.
In an employment discrimination action, "[a] trial court must be cautious about granting summary judgment to an employer when . . . intent is at issue." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir. 1994); accord Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006). Nevertheless, even in a discrimination case, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) ("[T]he party opposing summary judgment may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.").
Plaintiff commenced this action pro se. Thereafter, she retained Michael L. Gangadeen, Esq. to represent her. Mr. Gangadeen assisted in the preparation of Gobin's opposition papers on this motion and argued on her behalf at the hearing. (Pl. Aff. ¶ 1; Transcript of Oral Argument ("Tr.") on Oct. 11, 2005.) Thus, the deference typically afforded to pro se motion papers is inappropriate here. Cf. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
II. Statute of Limitations
Title VII claims challenging an alleged unlawful employment practice must be based on events arising within 300 days of an EEOC charge. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-17 (2002). Gobin filed her EEOC charge on January 27, 2004. (Compl. ¶ 10 Ex. A.) Unless Plaintiff can establish a continuing violation, her Title VII claims are barred to the extent they rely on events that occurred prior to April 3, 2003.
For statute of limitations purposes, incidents of employment discrimination are classified as either discrete acts or continuing violations. Morgan, 536 U.S. at 114-17; Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-35 (2d Cir. 2003). A discrete act occurs at a specific point in time such as a termination or failure to promote. Morgan, 536 U.S. at 110, 114; Elmenayer, 318 F.3d at 133-35. In contrast, a continuing violation occurs over a period of time and "is composed of a series of separate acts that collectively constitute one unlawful employment practice." Morgan, 536 U.S. at 117; accord Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996). As a general matter, courts in this circuit disfavor the continuing violation theory and apply it only amid compelling circumstances.Quadrozzi Concrete Corp. v. City of New York, No. 03 Civ. 1905(LAP), 2004 WL 2222164, at *8 (S.D.N.Y. Sept. 30, 2004);Blake v. Bronx Lebanon Hosp. Ctr., No. 02 Civ. 3827 (CBM), 2003 WL 21910867, at *5 (S.D.N.Y. Aug. 11, 2003). Where a plaintiff can establish a continuing violation, the statute of limitations begins to run on the date of the last discriminatory act in furtherance of such violation. Cornwall v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994). "For example, in the case of a hostile work environment claim, the statute of limitations requires that only one . . . act demonstrating the challenged work environment occur within 300 days of filing; once that is shown, a court and jury may consider the entire time period of the hostile environment in determining liability." Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004).
Much of the conduct undergirding Plaintiff's claims occurred prior to the April 3, 2003 time bar. Specifically, the alleged demotion in February 2003 and the false Statement of Charges on March 19, 2003 are discrete acts that occurred at identifiable points in time outside the limitations period. See e.g., Hernandez v. Kellwood Co., No. 99 Civ. 10015 (LTS), 2003 WL 22309326, at *15 (S.D.N.Y. Oct. 8, 2004) (allegedly unwarranted evaluations are discrete acts);Bailey v. Synthes, 295 F. Supp. 2d 344, 354 (S.D.N.Y. 2003) ("[D]iscrete acts include allegedly discriminatory transfers, job assignments and non-promotions, and failures to compensate adequately.") Accordingly, they cannot form the basis for a continuing violation theory.
Turning to the discriminatory statements, Plaintiff argues that these comments created a hostile work environment and constitute a continuing violation. (Pl's. Aff. ¶ 8.) "Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Morgan, 536 U.S. at 115. Thus, this Court will consider all of the comments Gobin offers in connection with her hostile work environment claims. Bailey, 295 F.Supp.2d at 354.
III. Hostile Work Environment Claim
A hostile work environment claim requires a showing that "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 Sys., Inc., 510 U.S. 17, 21 (1993); Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006); Schiano, 445 F.3d at 604. Gobin must demonstrate "not only that she subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive." Demoret, 451 F.3d at 149;Schiano, 445 F.3d at 604. To accomplish this, Gobin must establish that either a single incident was particularly severe or that a series of incidents were "sufficiently continuous and concerted" to have altered the conditions of her employment. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); accord Demoret, 451 F.3d at 149; Alfano v. Costello, 294 F.3d 365, 374. In this regard, courts examine the totality of circumstances and consider the severity, frequency, and degree of the purported abuse. Demoret, 451 F.3d at 149;Schiano, 445 F.3d at 605; Alfano, 294 F.3d at 374. This Court notes, however, that "Title VII is not a general civility code."Holtz, 258 F.3d at 75.
Gobin alleges that during her employment at Cumberland, she was subjected to comments regarding her race, color and national origin. As set forth above, Gobin alleges that Smith and other employees stated that "Hinduism is not even a real religion," "you are a devil worshiper because you are a Hindu" and "West Indians are low class people." (Pl. Aff. ¶ 8.) She also asserts that Smith told her that she preferred working with African Americans and "the hospital belongs to the black people." (Pl. Aff. ¶ 8.) Plaintiff argues that she "found these comments to be so severe . . . that it [sic] altered the conditions of employment and created an abusive environment." (Pl. Aff. ¶ 8.)
Considering the totality of circumstances, Gobin cannot establish that these statements were sufficiently severe or pervasive to establish a hostile work environment. Although Gobin contends that the above remarks permeated her employment at Cumberland, she testified during her deposition that the statements made by Smith and other employees occurred on two occasions. (Deposition of Nankumarie Gobin on Apr. 13, 2005 ("Gobin Dep. II") at 197-99, 200.) Her testimony also reveals that the comments solely attributable to Smith were made at one time. (Deposition of Nankumarie Gobin on Dec. 29, 2004 ("Gobin Dep. I") at 142.) Other than these particular incidents, Gobin testified that the comments were made "many times." (Gobin Dep. I at 111; Gobin Dep. II at 197.) When a plaintiff identifies only a few incidents, "general allegations of constant abuse" must be accompanied by some corroborating evidence to support a claim for hostile work environment. Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997); Gurry v. Merck Co., No. 01 Civ. 5659 (RLC), 2003 WL 1878414, at *4 (S.D.N.Y. Apr. 14, 2003);Ramos v. Marriott Int'l, Inc., 134 F.Supp. 2d 328, 349 (S.D.N.Y. 2001). At oral argument, however, Plaintiff's counsel conceded that there is no such evidence to support Gobin's claim:
THE COURT: Does your client have any corroborating evidence that would provide some detail to the general allegations that she makes?
MR. GANGADEEN: No, your Honor.
(Tr. at 9-10.)
Without evidence to support her allegations that the comments were made "many times," the three events Plaintiff identifies are insufficient to demonstrate a hostile environment. While the alleged remarks are deplorable, "[f]or racist comments, slurs and jokes to constitute a hostile work environment, there must be more than just a few isolated incidents of racial enmity."Schwapp, 118 F.3d at 111; accord Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999);Torres, 116 F.3d at 631. "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Alfano, 294 F.3d at 374 (internal quotation omitted); accord Demoret, 451 F.3d at 149; Portee v. Deutsche Bank, No. 03 Civ. 9380 (PKC), 2006 WL 559448, at *12 (S.D.N.Y. Mar. 8, 2006).
Three incidents transpiring over Gobin's approximately two-year employment term "were infrequent and episodic" and thus, cannot form the basis of a hostile work environment claim. Alfano, 294 F.3d at 379-80 (collecting cases); Portee, 2006 WL 559448, at *12; Lane v. Collins Ailman Floorcoverings, Inc., No. 00 Civ. 3241 (RMB), 2001 WL 1338918, at *5-6 (S.D.N.Y. Oct. 31, 2001) (six incidents during two year period not pervasive); Arroyo v. WestLB Admin., Inc., 54 F. Supp. 2d 224, 230-31 (S.D.N.Y. 1999) (five or six incidents spanning two year period insufficient). Further, none of these incidents alone was so severe or egregious to compromise Gobin's workplace. See e.g., Alfano, 294 F.3d at 380; Forts v. City of New York Dept. of Corr., No. 00 Civ. 1716 (LTS), 2003 WL 21279439, at *5-6 (S.D.N.Y. Jun. 4, 2003); Lane, 2001 WL 1338918, at *6.
IV. Discrimination
To establish a prima facie case of discrimination, Gobin bears the burden of establishing that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred in circumstances giving rise to an inference of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts to the Defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-803; Weinstock, 224 F.3d at 42. Gobin must then show that Defendant's justification is a mere pretext and "more likely than not discrimination was the real reason" for the adverse action. Van Zant, 80 F.3d at 714; accord Weinstock, 224 F.3d at 42.
It is undisputed that Gobin is a member of a protected class, she was qualified for her position and that her termination constitutes an adverse employment action. Plaintiff, however, cannot demonstrate an inference of discrimination. Based on the evidence, the discriminatory statements were few and isolated and absent further indicia of discrimination, are insufficient to establish an inference of discrimination. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) ("[S]tray remarks of a decision-maker, without more, cannot prove a claim of employment discrimination."); Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (Isolated statements, "without more, cannot get a discrimination suit to a jury."); Bailey v. Frederick Goldman, Inc., No. 02 Civ. 2429 (TPG), 2006 WL 738435, at *4 (S.D.N.Y. Mar. 23, 2006) ("[S]tray comments . . . without some demonstrable connection to plaintiff's discharge, are insufficient to give rise to an inference of discrimination."). Moreover, it is undisputed that Smith interviewed Gobin and recommended her for the position. (Pl. Aff. ¶ 7; Def. 56.1 Stmt. ¶ 1.) Given Gobin's relatively short period of employment for Smith, "it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997); accord Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000);Portee, 2006 WL 559448, at *11 n. 3.
Nevertheless, even if Plaintiff could establish a prima facie case, Defendant offers a legitimate, nondiscriminatory reason for her termination. McDonnell Douglas, 411 U.S. at 802-03;Weinstock, 224 F.3d at 42-43. Defendant has submitted persuasive evidence concerning Gobin's performance failures. In March 2003, Plaintiff was formally charged with four instances of misconduct. Following three stages of disciplinary proceedings, each finding that Gobin engaged in the misconduct charged and recommending her termination, Plaintiff was terminated. (Winefsky Decl. Exs. F, G, I J.)
Finally, Plaintiff cannot prove that Defendant proffered pretextual reasons for terminating her. Gobin argues that the charges against her were false. However, "[t]he mere fact that an employee disagrees with her employer's assessments of her work . . . cannot standing on its own show that her employer's asserted reason for termination was pretextual." Ricks v. Conde Nast Publ'ns, Inc., 92 F.Supp. 2d 338, 347 (S.D.N.Y. 2000). Indeed, an employer may terminate an employee for a good reason, bad reason, or no reason at all, provided such reason is not discriminatory. Malatesta v. Credit Lyonnais, No. 03 Civ. 3690 (MBM), 2005 WL 3117351, at *7 (S.D.N.Y. Nov. 21, 2005); Slatky v. Healthfirst, Inc., No. 02 Civ. 5182 (JGK), 2003 WL 22705123, at *5 (S.D.N.Y. Nov. 17, 2003); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984). Based on the above, Gobin failed to present evidence "sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or part on discrimination." Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997).
V. Retaliation
To establish her claim for retaliation, Gobin must show: "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Van Zant, 80 F.3d at 714. Similar to discrimination claims, following Gobin's demonstration of aprima facie case, the burden shifts to Defendant to articulate a legitimate basis for its actions. The burden then shifts back to Gobin to show pretext. Van Zant, 80 F.3d at 714.
It is undisputed that Gobin was engaged in a protected activity when she reported the conduct of Smith and other employees to Wright. Gobin argues that the "write-ups" she received and her termination constitute adverse employment actions. Because the "write-ups" do not "alter the terms and conditions of the plaintiff's employment in a materially negative way" they are not adverse employment actions. Patrolmen's Benevolent Ass'n of City of New York v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002);accord Smith v. Ward Leonard Elec. Co., Inc., No. 00 Civ. 3703 (RCC), 2004 WL 1661098, at *8 (S.D.N.Y. July 23, 2004) (written warnings are not adverse employment actions). Thus, only Plaintiff's termination qualifies as an adverse action for her retaliation claim.
With respect to the third element of her prima facie case, a causal connection can be established "by showing that the protected activity was closely followed in time by the adverse action." Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Gobin complained to Wright in February 2003, but was not terminated until January 2004. This time interval is too attenuated to establish a causal connection. See e.g., Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (three and a half months insufficient);Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp. 2d 442, 448-50 (S.D.N.Y. 2002) (concluding nearly 16 months inadequate);cf. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (finding less than two months sufficient).
In any event, even if Gobin could satisfy the elements of aprima facie case, for the same reasons discussed above, Defendant has advanced a legitimate nondiscriminatory reason for her termination, which she cannot refute as pretextual.
CONCLUSION
For the foregoing reasons, the Defendant's motion for summary judgment is granted. The Clerk of Court is directed to mark this case closed.
SO ORDERED: