Opinion
01 Civ. 5844 (FM)
September 29, 2003
OPINION AND ORDER
I. Introduction
In this employment discrimination suit, pro se plaintiff Maude McCalman ("McCalman") alleges that her former employer, Partners in Care ("Partners"), denied her a promotion, terminated her from her position as a visiting nurse, and thereafter retaliated against her, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. Partners has now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion for summary judgment is granted and the complaint dismissed.
II. Facts
Unless otherwise noted, the following facts are set forth in the light most favorable to McCalman.
A. The Parties
Partners provides home health care services to elderly and infirm patients. (Aff. of Jay M. Conolly, sworn to on December 11, 2002 ("Conolly Aff."), ¶ 2). Approximately ninety percent of Partners' employees are black. (Id. ¶ 5). Until approximately January 2002, Partners had a division known as Visiting Infusion Care ("VIC"), which provided home health care services. (Id ¶¶ 8, 10).
McCalman is a 61-year-old Black woman. (See Docket No. 41 (Unverified McCalman Stmt., dated Feb. 10, 2003 ("McCalman Stmt.")), at 1). She has an associate's degree in nursing from New York City Community College and is a registered nurse. (Aff. of Todd H. Girshon, Esq., sworn to on December 13, 2002 ("Girshon Aff"), Ex. D at 1).
B. McCalman's Employment and Subsequent Termination
In December 1998, McCalman began working for Partners as a "per diem" nurse in its VIC division. (Dep. of Maude McCalman, sworn to on October 23, 2002 ("McCalman Dep."), at 74, 125, 158).
In or around April 1999, McCalman was promoted to a full-time "field nurse" position. (See id. at 158; Partners' R. 56.1 Stmt. ¶ 13). At that time, James MacLeary ("MacCleary") was VIC's General Manager and Mary Beth Eldridge ("Eldridge") was its Director of Clinical Services and McCalman's direct supervisor. (Conolly Aff. ¶¶ 7, 8).
Both per diem nurses and full-time field nurses at VIC received their patient assignments from clinical coordinators, who were responsible for performing "intake from the various agencies and . . . schedul[ing] nurses to work with the patients." (See McCalman Dep. at 170). Shortly after McCalman was promoted to the field nurse position in April 1999, each of the existing clinical coordinators left VIC's employ. (Id. at 171-73). As a consequence, McCalman was asked to perform some of their scheduling duties temporarily until the vacancies were filled. (Id. at 170-73).
In or around June 1999, Eldridge and MacLeary made the decision to hire Cheryl Powers and Diane Johnson (who are white) and Althea Jarvis (who is black) to fill the open clinical coordinator slots. (Id. at 167-83; Partners' R. 56.1 Stmt. ¶¶ 19-22). Shortly thereafter, McCalman asked to be returned to the field, a request which was granted in July 1999. (McCalman Dep. at 177, 181).
Unlike McCalman, Powers has a four-year nursing degree. (Id. at 167-68). The parties have not described Johnson's background.
McCalman contends that VIC was poorly managed and that Eldridge and others at VIC spurned her efforts to help improve the company. (McCalman Stmt. at 2, 4, 6, 28). She further contends that she was treated unfairly on account of her race. For example, McCalman suggests that a white employee was given a position at Memorial Sloan Kettering Hospital that she wanted. (Id. at 10-11). She similarly claims that she was given assignments outside Manhattan because only white nurses were assigned to Manhattan. (Id. at 14). Finally, she alleges that, unlike Powers, she was not given business cards. (McCalman Affirm, in Opp. to Mot. for Summ. J., dated Feb. 14, 2003 ("McCalman Affirm."), at 5).
One of McCalman's concerns was that medical records were often left out in the open. (McCalman Stmt. at 6). Ironically, despite this concern, she has incorporated medical information about her patients in some of her public filings in this case. (See id (Attach.) (List of Docs. Produced for Dep.)).
Partners has a markedly different view of the facts. Partners contends that it is an equal opportunity employer, but that McCalman was a problem employee who was warned about her "inappropriate" behavior on several occasions prior to her termination. (See Girshon Aff. Ex. D; Conolly Aff. ¶ 6; Partners' R. 56.1 Stmt. ¶¶ 33-40, 52, 59).
McCalman's performance appraisal for 1999 concluded that she met or exceeded most of the tasks assigned to her and was proficient in most of the "key competencies" she was expected to have. (Girshon Aff. Ex. G at 9). Nonetheless, the appraisal noted that she needed to "interact with staff in a more relaxed manner," and, in her own self-appraisal, McCalman agreed that she was "not entirely diplomatic" and needed "to work on that, to express [her] feelings without hurting another person." (Id. at 5, 8).
Consistent with this concern, on April 17, 2000, MacLeary sent McCalman a letter regarding two meetings he and others had held with her to review, among other topics, "complaints from internal-and external customers concerning [her] manner of communicating with them." (Id. Ex. H). MacLeary contended that, "because of the disruptive and unprofessional manner in which you conducted yourself during both these meetings, we were not able to have you focus on the problems you have with both your productivity level and your interpersonal skills." (Id.). MacLeary cautioned McCalman that she needed to conduct herself "in a professional, cooperative and business-like manner," and that "[f]ailure to do so will result in disciplinary action." (Id.). At her deposition, McCalman acknowledged receiving the letter, but disputed the accuracy of MacLeary's summary of what had occurred. (McCalman Dep. at 267-75).
Partners was not critical of every aspect of McCalman's performance. For example, only a few months later, after an outside reviewer had made favorable comments about McCalman's "organization and care of the patients," Eldridge thanked her, in writing, "for being a fine representation of the infusion home care we provide to our patients." (Girshon Aff. Ex. I).
Matters came to a head in February 2001, when Partners and McCalman encountered some difficulty scheduling her annual performance review. (See McCalman Dep. at 298-300; Girshon Aff. Ex. K). Following several adjournments, the meeting eventually was set for Monday, February 12, 2001. (McCalman Dep. at 299). After McCalman arrived late, Eldridge informed her that it would have to be rescheduled for the following morning. (Id. at 302, Girshon Aff. Ex. K). Disagreeing with that decision, McCalman called Jay Conolly, Partners Director of Human Resources, who affirmed the directive that McCalman return the next day for her review. (McCalman Dep. at 302-05).
On February 13, 2001, McCalman met with Eldridge and MacLeary in a conference room for her annual review. (Id. at 308-12). At the outset of the meeting, McCalman refused to proceed because she did not understand why MacLeary was present. (Id. at 310-18). McCalman then left the meeting to ask another employee whether MacLeary had been present at his evaluation. (Id. at 319-20, 324). When McCalman returned to the conference room, she refused to continue the meeting with MacCleary and Eldridge until she could determine whether MacCleary had attended other evaluations. (Id at 326-27, 364).
MacLeary then contacted Dennis Tomechko, Partners' Vice President of Human Resources, who informed McCalman that she was causing a disturbance and should leave the premises immediately. (Id. at 368-70; Partners' R. 56.1 Stint ¶¶ 85-86). Although police officers were called to the scene, McCalman contends that she eventually left Partners' offices of her own volition. (McCalman Dep. at 371-72). Later that day, MacLeary contacted McCalman at her home to advise her that an investigation had been initiated and that she was being suspended while it was underway. (Id. at 373). On February 15, 2001, upon the completion of its investigation, Partners terminated McCalman. (Girshon Aff. Ex. L). The letter sent to McCalman explained that she was being fired "[a]s a result of the egregious behavior [she] exhibited on February 13, 2001." (Id.).
Following her dismissal, McCalman sought other nursing jobs. (McCalman Dep. at 77-78). Although Partners has a "neutral reference policy," pursuant to which prospective employers are given only verification of an employee's dates of employment, last position, and ending salary, (Conolly Aff. ¶¶ 13-14), McCalman contends that Partners must have disparaged her when asked for a reference. (McCalman Dep. at 57, 392-93). She notes the desperate shortage of skilled nurses, arguing that but for a negative reference, "at least one [of the prospective employers she contacted] should have employed [her]." (Id. at 59). She also relies on the hearsay statements of a former colleague, who told her that a former Partners employee named Joe Ribiero aborted her attempts to join a company known as "Adima" by stating that she was fired by Partners. (Id. at 61-74). At the time that he allegedly made that statement, Ribiero was not a Partners employee. (Id. at 73).
C. Procedural History
On February 21, 2001, one week after her termination, McCalman filed a complaint with the federal Equal Employment Opportunity Commission ("EEOC"). (Girshon Aff. Ex. M). In her EEOC complaint, McCalman alleged that Partners failed to promote her, and eventually terminated her, on the basis of her race. (Id.). On March 29, 2001, the EEOC concluded that it was "unlikely that [McCalman's] race was a factor in the decisions regarding [her] employment" and issued her a "right to sue" letter." (Id. Ex. N).
McCalman's original complaint in this lawsuit is dated June 4, 2001, and was received by this Court's Pro Se Office that day. (Docket No. 2 at 1, 5). In her original complaint, McCalman checked several boxes to indicate that she was bringing an action under Title VII because Partners and VIC had discriminated against her on the basis of her race and color. (Id. at 1, 3). By order dated March 14, 2002, McCalman's claims against VIC were dismissed, but not her claims against Partners. (Docket No. 8).
On March 22, 2002, McCalman filed an amended complaint. (Docket No. 10). Although McCalman's amended complaint added a number of individuals as co-defendants, they were dismissed from this suit by order dated July 18, 2002. (Docket No. 27). Accordingly, the only remaining defendant in this action is Partners.
Liberally construed, McCalman's amended complaint alleges that Partners discriminated against her and denied her a promotion on the basis of her race, color and age, in violation of Title VII and the ADEA. (Am. Compl. at 1, 3 at ¶ 7). McCalman further alleges that she was wrongfully terminated because she complained about such organizational problems as inadequate training. (Id. at 3 at f 4). Finally, McCalman contends that she is a victim of unlawful retaliation. (Id.).
III. Discussion
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when:
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.
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Fischl 128 F.3d at 55. See also Fed.R.Civ.P. 56(e) 1963 advisory committee's note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl 128 F.3d at 55.
To defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The Second Circuit has cautioned that summary judgment is often inappropriate in cases where the trier of fact will have to delve into an employer's intent, because intent is an issue as to which direct evidence is rarely available. See, e.g., Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). However, when an employer has explained its conduct and the plaintiff has offered only conclusory assertions in opposition, summary judgment may be granted. See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
B. Age Discrimination
In her amended complaint, McCalman indicated that she wished to prosecute an age discrimination claim by checking the box for "age" on a form that the Court provides to assist pro se litigants in employment cases. (See Am. Compl. ¶ 7). Apart from that check mark, however, McCalman's amended complaint does not contain any allegations which would support her claim. McCalman therefore has not met even the minimal pleading burden imposed on a litigant seeking to recover damages for age discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (setting forth elements of prima facie discrimination claim).
In her original complaint, MacCalman did not check that box or otherwise allege that her age was a factor in her termination. (See Docket No. 2).
In any event, even if the amended complaint set forth a prima facie age discrimination claim, the Court would lack jurisdiction to hear it. Prior to filing a suit under the ADEA, a party alleging age discrimination must first present her claim to the EEOC. See, e.g., Legnani v. Alitalia Linee Aeree Italians S.P.A, 274 F.3d 683, 686 (2d Cir. 2001); Miller v, Int'l Tel and Tel Corp., 755 F.2d 20, 26 (2d Cir. 1985). As the Second Circuit has noted, this requirement of administrative exhaustion is intended to "encourage settlement of discrimination disputes through conciliation and voluntary compliance," a goal which "would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller, 755 F.2d at 26. Accordingly, the Court cannot consider McCalman's age discrimination claim unless it was either included in the EEOC charge or is based upon conduct subsequent to the filing of the EEOC charge which is "reasonably related" thereto. See Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993).
There are only three situations in which courts have held that claims not explicitly alleged in an EEOC charge are "reasonably related." Id. at 1402. The first arises when the claim was "loosely pleaded" in the EEOC charge and "the conduct complained of would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978)). The second exception applies to cases in which the plaintiff alleges further retaliatory discrimination) resulting from the filing of an EEOC charge.Id. Finally, there is an exception for situations in which "a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.
The first and third exceptions plainly do not apply in this case because McCalman's EEOC complaint does not contain so much as a syllable referring to age discrimination. Additionally, although McCalman alleges in this lawsuit that she was the victim of unlawful retaliation, as the next section of this Opinion and Order explains, there is no legal or factual basis for this contention. Accordingly, because none of the three exceptions apply, McCalman's age discrimination claim must be dismissed for want of jurisdiction because she failed to exhaust her administrative remedies.
C. Retaliation
Under both Title VII and the ADEA, it is illegal for an employer to retaliate against an employee who has exercised her statutory right to complain about conduct that she considers discriminatory. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (Title VII); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d Cir. 2001) (ADEA). See also Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir. 1986) ("A finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint."). To make out a prima facie case of retaliation, McCalman must show that (1) she participated in a protected activity, (2) Partners knew of this activity, (3) she was subjected to an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse employment action. See Cifra, 252 F.3d at 216; Holt v. KMI-Continental. Inc., 95 F.3d 123, 130 (2d Cir. 1996). The last of these elements can be established: (a) "directly through evidence of retaliatory animus directed against a plaintiff by the defendant;" or (b) "indirectly by showing that the protected activity was followed closely by discriminatory treatment . . . or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct. . . ." DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 115 (2dCir. 1987) (internal citations omitted) (emphasis in original).
McCalman alleges that Partners retaliated against her because it knew that she had made complaints to the New York City Department of Health ("DOH") concerning its practices (and possibly because of her EEOC complaint). (McCalman Dep. at 57, 392-98). Neither Title VII nor the ADEA, however, is an all-purpose whistleblower statute. See, e.g., Jamil v. Sec'y. Dep't of Defense, 910 F.2d 1203, 1207 (4th Cir. 1990) ("Title VII is not a general `bad acts' statute"); Banez v. N.Y. Foundling Hosp., 2001 WL 1035142, at *5-*8 (S.D.N.Y. Sept. 7, 2001) (demands for payment of overtime not causally connected to age discrimination are not protected ADEA activity); Goodman v. N.Y.C. Off-Track Betting Corp., 1999 WL 269959, at *2, *10 (S.D.N.Y. May 4, 1999) (complaints about waste mismanagement and corruption are not protected activity under Title VII); Harper v. Hunter Coll., 1997 WL 151356, at *2 (S.D.N.Y. Mar. 31, 1997) (complaints about job safety are not protected activity under Title VII), vacated on other grounds, 162 F.3d 1147 (2d Cir. 1998). Accordingly, the fact that McCalman may have complained to DOH does not entitle her to any relief under the federal employment laws.
Furthermore, even if McCalman's complaints to DOH did constitute protected activity, she has not shown, as she must, that Partners was aware of these contacts, much less that there is a causal nexus between them and any of the allegedly retaliatory acts. Indeed, McCalman's termination occurred nearly two years after the date that she claims to have spoken with DOH. In these circumstances, McCalman is not entitled to any relief under Title VII or the ADEA on the theory that Partners retaliated against her for engaging in protected activity.
The filing of an EEOC complaint is, of course, a protected activity. Here, however, it is clear that McCalman could not have been fired inresponse to the filing of her EEOC complaint since she first approached the EEOC after she was fired. Although she also alleges that Partners later retaliated against her by providing negative references to prospective future employers, this is sheer speculation premised on nothing more than her alleged inability to find a job in what she considers a favorable market.
The only specific example of alleged retaliation that McCalman is able to muster relates to the disparaging comments that Joe Ribiero allegedly made about her to a prospective employer. Partners clearly cannot be held liable for those statements for at least two reasons. First, at the time that Ribiero made the remarks, he was not a Partners employee. (McCalman Dep. at 73). Second, the information that Ribiero allegedly gave to the new employer — namely, that McCalman had been fired by Partners — was entirely accurate.
There consequently is no legal or factual basis for McCalman's retaliation claim.
D. Failure to Promote
McCalman also claims that Partners violated Title VII by denying her a promotion to a clinical coordinator position because of her race. She apparently contends that she sought that position and that other applicants were hired instead in or around June 1999. (Id. at 173-74).
Pursuant to 42 U.S.C. § 2000e-5(e)(1), McCalman was required to file her EEOC complaint within 300 days of the date of the alleged violation. See, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002); Bonner v. Guccione, 178 F.3d 581, 583-84 (2d Cir. 1999);Butts, 990 F.2d at 1401. Here, however, her EEOC charge was filed approximately twenty months after the alleged violation, rendering her failure to promote claim time barred.
Furthermore, Partners would be entitled to summary judgment even if the failure to promote claim were timely. Assuming that McCalman made out aprima facie case that she was denied a promotion on racial grounds, Partners would then have to proffer a legitimate nondiscriminatory reason for its action in order to meet its burden of production under the familiar burden-shifting analysis of McDonnell Douglas. See McDonnell Douglas Corp., 411 U.S. at 802. At this stage, Partners' burden is "not a demanding one; [it] need only offer such an explanation" for its decision. Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999). Partners has met that limited burden here by establishing that the one white clinical coordinator that McCalman says should not have been hired instead of her in fact had better educational credentials. McCalman's claim of racial discrimination is further belied by the fact that one of the three persons appointed as a clinical coordinator was black. See Samuels v. N.Y.S. Dep't of Corr. Servs., 1997 WL 253209, at *5 (S.D.N.Y. May 14, 1997) (granting partial summary judgment on delayed promotion claim because two of the four persons promoted were members of the same protected class).
Accordingly, the burden of persuasion rests with McCalman, who must "`demonstrate . . . that the proffered reason was not the true reason for the employment decision,' and that race was." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). McCalman has proffered no evidence which would support this conclusion. Her failure to promote claim must therefore be dismissed.
E. Unequal Employment Conditions
In her amended complaint, and other papers, McCalman also levels further charges of discrimination against Partners. First, she alleges that only white nurses were given the more attractive field nurse assignments in Manhattan. Her conclusory assertions in that regard are not backed up by any admissible evidence and, consequently, are insufficient to sustain her burden.
McCalman also alleges that Diane Johnson was transferred from her clinical coordinator job to a position as a discharge planner at Memorial Sloan-Kettering Hospital which McCalman herself wished to obtain. Here again, apart from the fact that Johnson is white, McCalman has not shown that there is any reason to believe that this decision was based on racial grounds.
Finally, McCalman notes that Powers (a white employee) was given business cards while she was not. (McCalman Affirm, at 5). It is undisputed, however, that no field nurses were given such cards. (See id, at 5-6; McCalman Dep. at 392). The fact that "the field people could benefit from business cards because [they] are the first people the patients see," (McCalman Affirm, at 5), even if established, simply does not suggest any reason to believe that McCalman was discriminated against on the basis of her race.
IV. Conclusion
For the foregoing reasons, the motion of defendant Partners in Care for summary judgment is granted and the complaint dismissed. Additionally, should plaintiff McCalman seek leave to appeal in forma pauperis, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED.