Opinion
02 Civ. 4470(DFE)
January 16, 2004
OPINION AND ORDER
Pro se plaintiff Marie Carmen Pointdujour brought this Title VII action against her former employer, Mount Sinai Hospital, and one of its Nurse Managers, Laura Giles. Plaintiff claims that the defendants retaliated against: her by terminating her employment after she complained that a female co-worker had subjected her to same-sex sexual harassment. See Am. Compl. ¶¶ 4, 8 and its addendum entitled "Additional Pacts." In September 2002, this case was assigned to me with the consent of the parties.
On September 25, 2003, defendants served (1) a Notice to Pro Se Litigant Opposing Motion for Summary Judgment, (2) a Notice of Motion for Summary Judgment with exhibits, (3) Defendant's Local Rule 56.1 Statement, and (4) a Memorandum of Law.
On October: 27 and 29, 2003, Ms. Pointdujour served (a) Plaintiff's Local Rule 56.1 Statement ("Pl. 56.1 Stat."), (b) an "Opposition of Motion to Notice of Motion [for] Summary Judgment" (6 pages plus exhibits), (c) a Preliminary Statement ("Prelim. St."), paginated 7 through 14, (d) a document entitled "Hostile Working Environment," and (e) a letter to me enclosing the full transcript from her Unemployment Insurance hearing before Administrative Law Judge Lynn A. Morrell at the New York State Department of Labor on March 15, 2001 ("3/15/01 Tr."). On this copy, the page numbers were cut off; at my request, defendants sent me another copy of the 3/15/01 Tr. (with the page numbers intact), as well as full transcripts of plaintiff's deposition testimony ("5/23/03 Tr." and "6/24/03 Tr.") and their annexed exhibits.
The issue before the ALJ was whether Ms. Pointdujour's actions did or did not "rise to the level of misconduct" severe enough to deprive her of unemployment benefits. (3/15/01 Tr. 3.) were so blameless that they provided no legitimate basis for an employer to decide to terminate her at-will employment. See Hernandez v. New York City Law Dept., 1997 WL 27047, at *16 (S.D.N.Y. Jan. 23, 1997). (Peck, M.J., collecting cases).
On November 14, 2003, defendants served a Reply Memorandum of Law. In a November 18 letter, they requested oral argument on their motion. To date, plaintiff has not requested this. In any event, I find that oral argument is unnecessary. For the reasons set forth below, I grant defendants' motion for summary judgment, and I dismiss plaintiff's amended complaint with prejudice.
BACKGROUND
From 1992 until August: 18, 2000, Ms. Pointdujour worked as a Clerk Registrar in the emergency room at Mount Sinai Hospital. (Pl. 56.1 Stat. ¶ 1.) Her immediate supervisor was John Mascia. (Id. at ¶ 5.) Mr. Mascia's supervisor was defendant Laura Giles. (Pl. at 5/23/03 Tr. 119; Giles 9/25/03 Aff. ¶ 12.)
Plaintiff alleges that: she was sexually harassed by a female co-worker for a period of about six or seven months prior: to August: 17, 2000. (Pl. 56.1 Stat. ¶¶ 34, 37, 38, 50.) For the purposes of this motion, I will assume the truth of her allegations about the co-worker.
Plaintiff concedes that: she did not report any harassment to her employer until August 17, 2000. (Pl. at: 5/23/03 Tr. 56, 63-64.) Even then, her "report" was made in a rather bizarre way:
. . . I told [Mr. Mascia] that I had [a] problem and I needed to speak with him and could he please arrange for me to speak to him. He asked me was it anything that he should help me with? I says [sic] yes. I said I want to speak to him and 1 want to speak to my co-workers. He called the co-workers and then we had the meeting. . . . I did not specifically state the cause of the meeting, [but I did say that] 1 was being harassed and I needed to speak to my co-workers.
(Pl. at 3/15/01 Tr. 42-43.) Mr. Mascia set: up the meeting about: five minutes later, and held it in the registration area. Mr. Mascia and several of the registrars attended, including the alleged harasser. (Pl. at 3/15/01 Tr. 43-45; 5/23/03 Tr. 41-43.)
The registration area was a staff area that had windows with openings wide enough for a patient to hand in papers; the windows were similar to the plastic shields that separate a bank teller from the public. (Pl. at 3/15/01 Tr. 44.) The area was about "25 to 30 steps away fromt the waiting area and patients". Pl. at 5/23/03 Tr. 40.)
Once everyone was gathered, Mr. Mascia closed the door and told her that she could speak. (Pl. at 5/23/03 Tr. 40.) By her account:
I started by saying my name is Marie Pointdujour. I work here . . . The reason I asked you here is to clear with you some problem that I am having in, I respect everybody['s] opinion and I respect everybody['s] religion and genders and so what, but I do not want to have a sexual relationship with my own gender.
(PI. at 3/15/01 Tr. 45.) In her earliest testimony, she claimed that she "didn't say anything out of [the] ordinary" at this meeting. (Pl. at 3/15/01 Tr. 68.) But her recent Preliminary Statement goes into more detail about what she said at the meeting:
What do you think [was] the reason for the meeting. Of course I was telling you I am being harassed. I am not a lesbian, I don't want: a lesbian lover. I don't care if you are [a] bunch of bull dingers but, stop, stop, harassing me. I am not into lesbianism. I am uncomfortable hurt stop forcing me to become a bull dinger. I don't want to walk around grabbing my cr[o]tch like I am holding a penis. I have a vagina. I am a woman happy and content with my womanhood. Stop harassing me.
(Prelim. St. at p. 12, ¶ C.) There was a dramatic reaction to plaintiff's speech. In her words: "The harasser screamed open the closed-door [and] pushed Mr. John Ma[s]cia away. The meeting ceased." ( Ibid.) Plaintiff says that the meeting lasted about seven to ten minutes; after it ended, everybody (except for the alleged harasser) went back to their posts. (Pl. at 5/23/03 Tr. 4 2, 47-48.)
Prior to August 17, plaintiff "never mentioned anything" to her employer about being harassed. (Pl. at 3/15/01 Tr. 47; see PI. at 5/23/03 Tr. 56, 63-64.)
On August 18, the day after the meeting, plaintiff came to work and was handed a Warning Notice by union delegate Emma Samuel. The Warning Notice, signed by Mr. Mascia and Ms. Giles, stated that plaintiff had violated two of the employer's Rules:
[Rule] 13.2.21[:] Fighting, horseplay or other disorderly conduct or annoying patients, visitors or other employees on Medical Center premises. [Rule] 13.2.26[:] Any willful act or conduct detrimental to patient care or to Medical Center operations.
(PI. at 5/23/03 Tr. 123-24 and its annexed Exh. 9.) The Notice then described the August 17 meeting and concluded with the following sentences:
Your behavior was disruptive, inappropriate stopped the operations of registration and other clerical functions. All present tried to stop you from speaking unsuccessfully.
( Ibid.) After handing plaintiff the Warning Notice, Ms. Samuel and Mr. Mascia escorted her to Ms. Giles's office. (Pl. at 5/23/03 Tr. 117-19.)
At that first meeting, Ms. Giles told plaintiff that she wanted her to seek help from the hospital's Employee Assistance Program ("EAP"), and plaintiff responded that she would not go to EAP. (PI. at 3/15/01 Tr. 58-60.) Ms. Giles placed plaintiff on suspension pending an investigation. (Pl. at 5/23/03 Tr. 123.)
Ms. Giles says:
[After conducting further interviews,] 1 concluded that I could not responsibly return Pointdujour to her work with patients and staff until she got confirmation from someone qualified to do a pyschologica1 assessment that Plaintiff was stable and fit to return to the department. Accordingly, I suggested to Labor Relations that before allowing Plaintiff to return to work, we have her get documentation from the Hospital's Employee Assistance Program ("EAP") confirming that she was mentally fit to return to work.
(9/25/03 Giles Aff. ¶ 32.)
Plaintiff's union filed a grievance on her behalf, and plaintiff met twice with Caryn Tiger, a Labor Relations Manager at Mount Sinai. (Def. 56.1 Stat. ¶¶ 35-46, 52-63; Pl. at 5/23/03 Tr. 126-32 and its annexed Exh. 10; 9/25/03 Tiger Aff. ¶¶ 16-32.) At least as early as September 18, 2000, Ms. Tiger offered two options to plaintiff: (1) reinstatement if she obtained documentation from EAP confirming that she was fit to return to work; or (2) resigning for personal reasons. (Def. 56.1 Stat. ¶¶ 43-47; 9/25/03 Tiger Aff. ¶¶ 22-25 and Exhs. 4-6.) Plaintiff rejected both options. In her own words:
Yes, I would like my job back. Not in that circumstances I don't — not in the circumstances 1 had to seek help to get my job back. . . .
(Pl. at 5/23/03 Tr. 157 with my emphasis added.) Since plaintiff repeatedly refused to go to EAP, Mount Sinai fired her on January 19, 2001. (9/25/03 Giles Aff. ¶ 37 and its Exh. 3; 9/25/03 Tiger Aff. ¶¶ 32-33; Def. 56.1 Stat. ¶¶ 64-65.)
DISCUSSION
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment will be granted only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. The Court will construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. The moving party bears the burden of demonstrating that no genuine issues of material fact exist, and all inferences and ambiguities will be resolved in favor of the non-moving party. Once the moving party has provided sufficient evidence to support a motion for summary judgment, the non-moving party muse set forth specific facts that show that there is a genuine issue for trial. Jones v. New York City Housing Authority, 2001 WL 406180, at *5 (S.D.N.Y. Apr. 20, 2001) (Kaplan, J.) (Eaton, M.J.); Winkfield v. City of New York, 1999 WL 1191544, at *2 (S.D.N.Y. Dec. 15, 1999) (Baer, J.). The Court is required to review the pleadings of a pro se plaintiff by a more lenient standard than that accorded to the pleadings written by lawyers. But conclusory allegations, speculation, conjecture or denials, without more, will not defeat a motion for summary judgment. Jones, 2001 WL 406180, at *5; Winkfield, 1999 WL 1191544, at *2.
Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq., it is unlawful for an employer to discriminate against any of its employees because the employee has opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). Courts analyze retaliation cases by using the Title VII framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).
At the first step of the McDonnell Douglas framework, a plaintiff must establish a prima facie case. In order to establish a prima facie case of retaliation, a plaintiff must show four elements:
[1] that she "engaged in protected participation or opposition under Title VII, [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action."Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001), quoting Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990).
Once the plaintiff has made out a prima facie case, the second step of the McDonnell Douglas framework requires an employer to show "evidence of a legitimate, nonretaliatory reason for the challenged employment decision." Cifra, 252 F.3d at 216. If the employer does this, then the third step requires the plaintiff to "point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Ibid.
For the purposes of this motion, I will assume that plaintiff has met her minimal burden of proving a prima facie case. Although it is debatable, I will assume that her version of her August 17 and 18 comments amounted to a complaint to her employer about a co-worker's sexual harassment, and that it is sufficient to show the prima facie elements 1 and 2. If so, then the prima facie elements 3 and 4 are shown by the evidence that her complaint was followed swiftly by the August 18 suspension and the January termination.
We now move to the second step. Mount Sinai and Ms. Giles claim that they had several legitimate, nonretaliatory reasons for their actions. But I find that one reason is undisputed and sufficient. On August 18, Ms. Giles asked plaintiff to seek help at Mount Sinai's Employee Assistance Program, and plaintiff refused. For the next five months, Ms. Tiger told plaintiff that she could return to work if she went to EAP and received a satisfactory psychological assessment. That was a reasonable condition, for the following reasons. First. Plaintiff's own version shows that her comments at the August 17 meeting were odd, unprofessional, and disruptive to the staff. (Prelim. St. at p. 12, ¶ C.) Second. In this lawsuit, plaintiff has filed papers in which she indulges in malicious and salacious invective. (See her Opposition at pp. 2-6.) Third. The defendants submit documentary evidence to show that three co-workers made separate complaints against her prior to 2000. An Asian-American nurse wrote that plaintiff referred to her as "chinky eyes." (6/24/03 Tr. Exhs. 15-16.) A male co-worker wrote that plaintiff was sexually harassing him. (5/23/03 Tr. Exhs. 6-8.) A female co-worker complained that plaintiff spread rumors about her husband. (6/24/03 Tr. Exh. 14.)Fourth. The defendants submit evidence to show that plaintiff had excessive absenteeism and that she was reprimanded for making an inappropriate comment to patients over the loudspeaker. (Pl. at 6/24/03 Tr. 245-49 and its Exhs. 18-19; 9/25/03 Giles Aff. ¶¶ 10-11.) According to Ms. Giles:
In January 2000, when asked to advise the patients that visiting was suspended because the Department was temporarily over-crowded, Plaintiff cause[d] an uproar in the Emergency Department by taking to the public address system to make a department-wide announcement that "The doctors arid nurses do not want you to see your loved-ones."
(9/25/03 Giles Aff. ¶ 10.)
We now move to the third step. In view of the above, any rational factfinder would find that it was reasonable for Mount Sinai to require plaintiff to go to the Employee Assistance Program for a psychological assessment. Plaintiff admits that she refused to go to EAP, even though she knew that this was her employer's condition before she could return to work. It is irrelevant when she implies that she did not know about the nature of EAP's services. (Pl. Rule 56.1 Stat. ¶¶ 43, 51, 59, 60, 62.) She had the assistance of a union representative, and she could have easily obtained answers to any questions she may have had about EAP. Even when the evidence is viewed in the light most favorable to plaintiff, it shows that she was fired because she repeatedly refused to obey a reasonable directive that she go to EAP. Plaintiff has failed to submit "evidence that would permit a rational factfinder to conclude that the employer's explanation is merely a pretext for retaliation." Cifra, 252 F.3d at 216.
In short, Ms. Pointdujour is unable to make out a case of discrimination or retaliation by Mount Sinai, or Ms. Giles or any of the other employees and agents of Mount Sinai. It is anticlimatic to note that Title VII never imposes liability on individual managers; Tomka v. Sailer Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995).
CONCLUSION
I grant defendants' motion for summary judgment, and I dismiss plaintiff's amended complaint with prejudice. I direct the Clerk's Office to close this case.