Opinion
No. 99 Civ. 9215 (JGK).
March 8, 2001.
OPINION AND ORDER
The plaintiff, Rebecca Tanay, brings this action against her former employer, St. Barnabas Hospital (the "Hospital"). The plaintiff, who is of Filipino origin, alleges that the defendant discriminated against her on the basis of her national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The plaintiff claims that the Hospital transferred her to another unit for discriminatory reasons and subjected her to a hostile work environment. The defendant moves pursuant to Fed.R.Civ.P. 56 for summary judgment with respect to all of the plaintiff's claims.
I.
A.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible."Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
B.
The following facts are undisputed except where noted. The plaintiff is a Filipino female who was employed by the Hospital. The Hospital is a medical and research facility that provides health care services. (Deft.'s Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Stmt. ¶ 2.) The Hospital maintains a harassment and discrimination policy, which encourages all employees to bring any complaints of harassment or discrimination to the attention of their supervisors and/or the human resources department. (Deft.'s Rule 56.1 Stmt. ¶ 4; Pl.'s Rule 56.1 Stmt. ¶ 4.)
In or about February 1983, the Hospital hired the plaintiff to work as a registered nurse. (Deft.'s Rule 56.1 Stmt. ¶ 5; Pl.'s Rule 56.1 Stmt. ¶ 5.) In or about 1989, the plaintiff requested and received a transfer to the Hospital's Surgical Unit, which is also known as Unit 6 North. (Deft.'s Rule 56.1 Stmt. ¶ 9; Pl.'s Rule 56.1 Stmt. ¶ 9.) On or about October 29, 1996, the plaintiff became involved in a heated argument with another nurse, Darshel Ray ("Ray") during which the plaintiff threatened to physically hit Ray. (Deft.'s Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt. ¶ 12.) The plaintiff alleges that Ray also threatened her during the argument. (Pl.'s Rule 56.1 Stmt. ¶ 12.) Immediately after the argument, the plaintiff and Ray were asked to submit written statements to the Hospital describing their altercation. (Deft.'s Rule 56.1 Stmt. ¶ 13; Pl.'s Rule 56.1 Stmt. ¶ 13.) The plaintiff reported in her statement, which was dated October 31, 1996, that: "Everything went into a heated argument again until I lost control and I said to [Ms. Ray] `I really can slap you in your face!' I was very frustrated and very angry." (Deft.'s Rule 56.1 Stmt. ¶ 14; Pl.'s Rule 56.1 Stmt. ¶ 14.)
The plaintiff alleges that prior to the incident, in September 1996, Ray twice threatened her. (Deft.'s Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt. ¶ 12.) The plaintiff alleges that Ray harassed her by "giving [her] attitude" and by being "very insulting to her." (Deft.'s Rule 56.1 Stmt. ¶ 36; Pl.'s Rule 56.1 Stmt. ¶ 36.) The plaintiff alleges that on one occasion, in or about September 1996, Ray referred to her as "you Filipinos." (Deft.'s Rule 56.1 Stmt. ¶ 37; Pl.'s Rule 56.1 Stmt. ¶ 37.) The plaintiff alleges that the incidents were never investigated although she tried to tell the Hospital about them. (Pl.'s Rule 56.1 Stmt. ¶ 12.)
The Hospital transferred the plaintiff to its Ventilator Unit, also known as Unit 6 South, in or about the beginning of November 1996. (Deft.'s Rule 56.1 Stmt. ¶ 17; Pl.'s Rule 56.1 Stmt. ¶ 17.) Unlike Ray, the plaintiff had the requisite license to work with the ventilator machines used in that unit to assist patients in breathing. (Deft.'s Rule 56.1 Stmt. ¶ 20; Tanay Depo. at 41-42.) At some point after the transfer, the plaintiff met with Catherine Graham ("Graham"), the Hospital's Director of Nursing. (Deft.'s Rule 56.1 Stmt. ¶ 18; Pl.'s Rule 56.1 Stmt. ¶ 18.) During their meeting, Graham explained to the plaintiff that she was transferred due to her lack of professionalism and because of her threatening comments to Ray. (Deft.'s Rule 56.1 Stmt. ¶ 19; Pl.'s Rule 56.1 Stmt. ¶ 19.)
After the transfer, the plaintiff's salary and employment benefits remained the same. (Deft.'s Rule 56.1 Stmt. ¶ 23; Pl.'s Rule 56.1 Stmt. ¶ 23.) The plaintiff's hours of work remained the same and the Ventilator Unit was on the same floor and shared the same nursing station as the plaintiff's previous unit. (Deft.'s Rule 56.1 Stmt. ¶ 24; Pl.'s Rule 56.1 Stmt. ¶ 24.) However, the plaintiff alleges that her duties were different after the transfer because of the special needs of the ventilator patients. (Pl.'s Rule 56.1 Stmt. ¶ 22.) She also alleges that she lost an opportunity to become the nurse in charge of her old unit because in her new unit she was no longer a senior nurse. (Pl.'s Rule 56.1 Stmt. ¶ 23.)
The plaintiff worked in the Ventilator Unit for five months and did not experience any incidents of harassment or discriminatory conduct. (Deft.'s Rule 56.1 Stmt. ¶ 26; Pl.'s Rule 56.1 Stmt. ¶ 26.) The plaintiff alleges that during this period she complained about the previous incidents of harassment by her co-workers and informed her administrators that her transfer was discriminatory. (Pl.'s Rule 56.1 Stmt. ¶¶ 26-27.) Eventually, the plaintiff submitted her resignation to the Hospital by letter dated March 25, 1997 to be effective April 7, 1997. (Deft.'s Rule 56.1 Stmt. ¶ 28; Pl.'s Rule 56.1 Stmt. ¶ 28.) In her letter she stated:
While I find my clinical experience at St. barnabas [sic] rewarding I feel it is time for me to leave and develop other skills.
(Deft.'s Rule 56.1 Stmt. ¶ 29; Pl.'s Rule 56.1 Stmt. ¶ 29; Affidavit of Joel Cohen sworn to June 23, 2000 at Ex. 8.)
On January 16, 1998, the plaintiff filed a complaint alleging discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Deft.'s Rule 56.1 Stmt. ¶ 41; Pl.'s Rule 56.1 Stmt. ¶ 41.) The EEOC dismissed the plaintiff's charge upon a finding of no probable cause. (Deft.'s Rule 56.1 Stmt. ¶ 44; Pl.'s Rule 56.1 Stmt. ¶ 44.)
Immediately following the plaintiff's voluntary resignation, she obtained part-time employment as a registered nurse with Hackensack University Medical Center and Bayaba Nurses, Inc., and is currently employed by JFK Medical Center. (Deft.'s Rule 56.1 Stmt. ¶¶ 45, 49; Pl.'s Rule 56.1 Stmt. ¶¶ 45, 49.)
C.
The plaintiff attempted to bolster her claims of discrimination by adding nine pages of corrections to her deposition which she also submitted in opposition to the present motion. (Affidavit of Rebecca Tanay sworn to Aug. 7, 2000 ("Tanay Aff.") at Ex. A.) These "corrections" are substantive changes to the deposition and cannot alter what was said at the deposition.
The defendant's counsel took the plaintiff's deposition on April 10, 2000. (Affidavit of Jonathan Stolar dated September 8, 2000 ("Stolar Aff.") ¶ 3.) The defendant's counsel delivered a copy of the original deposition transcript to the plaintiff's counsel on May 5, 2000. (Stolar Aff. ¶ 4.) On June 20, 2000, the plaintiff's counsel returned the plaintiff's deposition transcript to the defendant's counsel with nine pages attached as corrections. (Stolar Aff. ¶ 6, Exs. C, D.)
According to Fed.R.Civ.P. 30(e), which governs depositions upon oral examination:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
Fed.R.Civ.P. 30(e). The defendant alleges without contradiction that the plaintiff's corrections came more than 30 days after the deposition was available to her and without a certificate verifying there was a request for review.
Thus, the Court will not consider these corrections to be part of the plaintiff's deposition. See, e.g., Oatar Nat'l Navigation Transport Co., Ltd. v. Citibank. N.A., No. 89 Civ. 464, 1996 WL 601540, at *1 (S.D.N.Y. Oct. 18, 1996). Instead, the Court will consider them as it would an affidavit submitted in opposition to the present motion. To the extent that the plaintiff's attached corrections contradict her deposition testimony, the corrections will be disregarded for the purposes of this motion for summary judgment. See Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995).
II.
Title VII makes it unlawful for an employer to discriminate against any individual with respect to the "compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). The plaintiff's first claim is that her transfer to a new unit by the Hospital was an adverse employment decision based on her national origin that led to her resignation.
A.
The plaintiff's first theory is governed by the standard established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas analysis, the plaintiff has the burden of proving a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000). To establish a prima facie case of employment discrimination, a plaintiff must show (1) membership in a protected class; (2) satisfactory job performance; (3) termination from employment or other adverse employment action; and (4) that this adverse employment decision occurred under circumstances giving rise to an inference of discrimination. See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citing McDonnell Douglas Corp., 411 U.S. at 802); Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). The burden of proof in establishing a prima facie case is de minimis. See Chambers, 43 F.3d at 37. The fourth element of the prima facie case may be satisfied by a showing that the plaintiff's position remained open after she was discharged, or that she was replaced by someone outside her protected class. See Tarshis, 211 F.3d at 36 (citing McDonnell Douglas Corp., 411 U.S. at 802).
When a plaintiff has successfully demonstrated the elements of a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell Douglas Corp., 411 U.S. at 802). After the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that national origin was. See id. at 255-56 n. 10; Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also Reeves, 120 S.Ct. at 2106; Fisher, 114 F.3d at 1336. The Second Circuit Court of Appeals has recently instructed that in determining whether the plaintiff has met this burden, a court is to use a "case by case" approach that evaluates "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case." James v. New York Racing Assoc., 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves, 120 S.Ct. at 2109);accord Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Alleyne v. Four Seasons Hotel — New York, No. 99 Civ. 3432, 2001 WL 135770, at *10 (S.D.N.Y. Feb. 15, 2001).
B. 1.
The Hospital does not dispute that the plaintiff meets the first and second prongs of the McDonnell Douglas test but argues that the plaintiff cannot establish the third prong of a prima facie case of discrimination because she was not discharged or subject to an adverse employment action by the Hospital. The plaintiff concedes that she was not formally terminated but claims that she was forced to leave because of discriminatory acts by the Hospital.
The plaintiff can meet the third requirement of a prima facie case by establishing that she was subject to a materially adverse change to the terms and conditions of her employment. See, e.g., Galabya v. New York City Board of Educ., 202 F.3d 636, 640 (2d Cir. 2000); Medwid v. Baker, 752 F. Supp. 125, 136-37 (S.D.N Y 1990). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary . . . or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640 (citations and internal quotations omitted). While the plaintiff was not actually terminated, she may show that she was subject to a materially adverse change by demonstrating that the Hospital constructively discharged her. A constructive discharge occurs when an employer intentionally creates an "intolerable work atmosphere that forces an employee to quit involuntarily." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996); accord Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993). "Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Chertkova, 92 F.3d at 89 (citation and internal quotations omitted).
The plaintiff has failed to present evidence indicating that her transfer or the resulting working conditions were so intolerable that she was forced to resign. The plaintiff's salary, employment benefits, and hours of work remained the same. The plaintiff concedes that after she was transferred, she was not harassed or discriminated against in her new unit. While the plaintiff may have been unhappy about her new job assignment and different job duties, such displeasure does not qualify as a constructive discharge. See, e.g., Stetson, 995 F.2d at 360.
The plaintiff also makes various allegations about the lack of sensitivity of co-employees and supervisors to her belief that the transfer was discriminatory. (Tanay Aff. ¶¶ 20-22.) However, the fact that a plaintiff's working conditions were unpleasant is insufficient to establish that she was constructively discharged. See, e.g., Stetson, 995 F.2d at 360; Alleyne, 2001 WL 135770, at *13; Mercury Air Group, Inc. v. Perez, No. 00 Civ. 2975, 2001 WL 88228, at *3 (S.D.N.Y. Jan. 31, 2001). While the plaintiff claims that she lost the opportunity for a promotion in her old unit after the transfer, even a discriminatory denial of a promotion, which did not occur in this case, would not be sufficient, without more, to constitute a constructive discharge. See e.g., Jimoh v. Ernst Young, 908 F. Supp. 220, 226 (S.D.N.Y. 1995) (holding as a matter of law that plaintiff's decision to pursue better opportunity after employer's failure to promote was not a constructive discharge absent aggravating factors); Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 126 (S.D.N.Y. 1990). Thus, the plaintiff has failed to satisfy even the prima facie case for a constructive discharge.
However, it is possible that the plaintiff can satisfy the third prong of the prima facie McDonnell Douglas analysis by her allegation that her transfer was in itself an adverse employment action because it denied her an opportunity for advancement. The plaintiff concedes that her hours, salary, and basic duties remained the same after the transfer, but also alleges that she lost seniority within the unit because of the transfer and therefore lost an opportunity to be the nurse in charge of the unit. (Pl.'s Rule 56.1 Stmt. ¶ 23.) The alleged loss of opportunity because of the transfer is sufficient to meet the plaintiff's minimal burden of establishing the third prong of the prima facie case. See, e.g., De La Cruz v. New York City Human Res. Admin. Dep't of Social Serv., 82 F.3d 16, 21 (2d Cir. 1996) (holding that transfer to a unit with less opportunity for advancement was sufficient to meet third prong of McDonnell Douglas test).
2.
The defendant argues that summary judgment should be granted because the plaintiff has not met her burden under the fourth prong of theMcDonnell Douglas test by demonstrating that her transfer occurred under circumstances giving rise to an inference of discrimination.
The plaintiff has not offered evidence that she was replaced by an individual outside of the protected class or that her former position remained open after she was transferred but instead alleges that her transfer was motivated by hidden discriminatory motives. However, the plaintiff has not produced any evidence that any of the supervisors who were involved in her transfer were motivated by any discriminatory intent. While she alleges that she spoke about her transfer with both Rillis Wolf, the Assistant Director of Nursing, and Catherine Graham, the Director of Nursing, she does not present any evidence of any discriminatory statements by them, any discriminatory conduct by them, or any reason to believe that any action they took in connection with the plaintiff's transfer was discriminatory. She infers that the real reason that she was transferred was to segregate her from black co-employees. (Tanay Aff. ¶ 14.) Although the plaintiff testified at her deposition that she believed that she was transferred because of her conflict with Ray (Tanay Depo. at 15-17), the plaintiff later supplemented her testimony in affidavits to claim that Celia Gomez ("Gomez") stated: "You are better off in 6 South because there are more Filipinos there. Let those black nurses be among themselves." (Pl.'s Rule 56.1 Stmt. ¶ 40; Tanay Aff. ¶ 12.) The plaintiff also appears to argue that her transfer was discriminatory because nurses with less seniority could have been transferred. (Tanay Aff. ¶ 25.)
In the corrections to her deposition, the plaintiff alleges that Ms. Wolf told her that she was transferred because the Hospital needed the plaintiff's expertise in the Ventilator Unit. The plaintiff also added a correction to say: "She also mentioned I could work well with the Filipino nurses in 6 South. She mentioned to me the Filipino nurses there." (Tanay Aff. at Ex. A.) This is a substantive change to her deposition where she testified unequivocally:
Q. Why do you feel as though the decision to transfer you to another unit was discriminatory?
A. Because I am a Filipino. I am the only Filipino in the unit.
Q. Were any comments made to you regarding your ethnicity?
A. No comments made.
Q. It is just your belief —
A. About my ethnicity.
(Tanay Depo. at 15-16.)
Because the alleged comment about the plaintiff's ethnicity directly contradicts the plaintiff's deposition, it cannot be considered on this motion for summary judgment. See Buttry, 68 F.3d at 1493. The belated comment also does not reflect that the transfer was made because of the plaintiff's national origin.
The plaintiff's allegations are too vague and unsupported to provide any support for the plaintiff's claim that the transfer occurred under circumstances giving rise to an inference of discrimination. The Gomez statement is not evidence on this motion because it directly contradicts the plaintiff's testimony at her deposition that "[n]o comments [were] made . . . [a]bout my ethnicity." (Tanay Depo. at 16.) See Buttry, 68 F.3d at 1493; see also supra note 1. The Gomez statement is also irrelevant because the plaintiff has produced no evidence that Gomez was involved in the decision to transfer the plaintiff. The plaintiff seems alternately to indicate that either Graham or the plaintiff's supervisor Ms. Wolf was the decisionmaker and does not link Gomez to the transfer decision. (Tanay Aff. ¶¶ 14, 18.) Thus, the plaintiff has produced no evidence showing that Gomez' statement was anything more than one unrelated stray remark by a non-decisionmaker about the transfer that was made after the transfer occurred. See. e.g., Ashton v. Pall Corp., 32 F. Supp.2d 82, 89-90 (E.D.N.Y. 1999); Arroyo v. New York State Ins. Dept., No. 91 Civ. 4200, 1995 WL 611326, at *5.6 (S.D.N Y Oct. 18, 1995), aff'd, 104 F.3d 349 (2d Cir. 1996). Moreover, the plaintiff's speculation about others who could have been transferred to the Ventilator Unit is irrelevant because the transfer occurred after an altercation between the plaintiff and Ray and, as between the two, the plaintiff was qualified for the transfer and Ray was not. The plaintiff has thus failed to establish even a prima facie case of a discriminatory reassignment.
3.
Even if the plaintiff had met the requirements of a prima facie case, the motion for summary judgment must be granted because the defendant has articulated a legitimate, nondiscriminatory reason for her transfer, namely her undisputed altercation with her co-worker, and the plaintiff has failed to show that her transfer was motivated by discrimination. The Hospital produced evidence that the plaintiff was transferred because of her conflict with Ray. The plaintiff was transferred and not Ray because only the plaintiff had a license to work in the Ventilator Unit. In response, the plaintiff argues that the Hospital's reason was pre-textual because the transfer occurred three weeks after the fight between the plaintiff and Ray and the transfer did not completely separate the combatants because their units were next to each other after the transfer. (Tanay Aff. ¶¶ 29-30.)
In light of the incident with Ray and the Hospital's articulated reasons for the transfer, the plaintiff's vague and conclusory allegations that her transfer was based on discriminatory reasons are insufficient for any reasonable factfinder to conclude that the plaintiff was discriminated against. The plaintiff's prima facie case is weak or nonexistent. The reason for transferring the plaintiff was powerful in view of the near violent altercation between the plaintiff and her co-worker. of the two workers, only the plaintiff had the qualifications to be transferred to the Ventilator Unit. (Deft.'s Rule 56.1 Stmt. ¶ 20; Tanay Depo. 41-42.) The plaintiff herself conceded at her deposition that the Hospital's reason for transferring her was the conflict with Ray. The fact that the transfer was delayed and not a perfect solution does not indicate that the Hospital's non-discriminatory reason was pretextual. While a court must be cautious in granting a summary judgment motion when the employer's discriminatory intent is in question, "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); accord Bickerstaff v. Vassar College, 196 F.3d 435, 451 (2d Cir. 1999), cert. denied, 120 S.Ct. 2688 (2000).
In sum, the defendant is entitled to summary judgment on the plaintiff's Title VII claim based on her transfer because the plaintiff has proffered no evidence from which a reasonable trier of fact could conclude that the decision to transfer her was motivated by discrimination. See, e.g., Schnabel, 232 F.3d at 91; Alleyne, 2001 WL 135770, at *9-15; Anatsui v. Food Emporium, No. 99 Civ. 1337, 2000 WL 1239068, at *6.8 (S.D.N.Y. Sept. 1, 2000).
III.
The defendants also move for summary judgment to dismiss the plaintiff's hostile work environment claim. To survive a motion for summary judgment on a claim of hostile work environment harassment, the plaintiff must show 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." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotations and citations omitted); see also Thompson v. American Eagle Airlines, Inc., No. 99 Civ. 4529, 2000 WL 1505972, at *6 (S.D.N.Y. Oct. 6, 2000). "[T]he plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Cruz, 202 F.3d at 570 (internal quotations and citations omitted); accord Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). The plaintiff must show that based on a totality of circumstances the conduct has created an "objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive. . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 23 (1993).
The plaintiff must also provide a basis for imposing liability on the employer for the conduct creating the hostile environment. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (citations omitted). An employer is not liable for harassment by co-workers unless the employer "failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action." Id. (internal quotations and citations omitted); accord Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998).
While the plaintiff alleges a number of incidents of purported harassment by her co-workers, the only clear incident of national origin harassment she establishes were her altercations with Ray and a statement by Ray referring to "you Filipinos." The other incidents described by the plaintiff are neither sufficiently severe nor linked by the plaintiff to her national origin. The plaintiff alleges that she was required to work evening shifts despite the fact that black junior nurses were available to do so. (Tanay Aff. ¶ 15.) These allegations are conclusory and do not support the plaintiff's hostile work environment claim.
The plaintiff has not established that she was subject to a hostile work environment based on her national origin. At best, she has only established a few isolated remarks by Ray and coworkers that are insufficient to resist dismissal of her claim. See, e.g., Harris, 510 U.S. at 21; Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1041-42 (2d Cir. 1993). The plaintiff's allegations are too vague and describe conduct insufficiently serious to establish that the Hospital subjected her to an objectively severe hostile work environment that changed the conditions of her employment.
Moreover, the Hospital cannot be liable for the harassment that occurred. It is undisputed that the Hospital has a complaint mechanism for discrimination claims. The plaintiff claims that she submitted complaints about national origin discrimination to the Hospital that were ignored. (Tanay Aff. ¶¶ 10-12.) However, the plaintiff's written complaints attached to her affidavit show that they only outline general incidents of alleged remarks by co-workers and do not assert discrimination based on national origin. (Tanay Aff. at Exs. C-I.) The possible exception are two comments by co-workers that the plaintiff "speak no English." (Tanay Aff. at Exs. E, F.) While the plaintiff also alleges that she made oral complaints, she has not described the nature of those complaints, whether they described national origin harassment, and whether she had any basis for making those complaints. The Hospital can not be liable for a hostile work environment because it had a harassment and discrimination policy that provided reasonable avenues for complaint and the plaintiff failed to put the Hospital on notice of any severe harassment based on her national origin.
There is no genuine issue of fact with respect to the existence of a hostile work environment in this case. No reasonable finder of fact could find such harassment on the evidence adduced by the plaintiff nor could a reasonable finder of fact find that the Hospital was liable for hostile work environment harassment. Thus, the defendant is entitled to summary judgment dismissing the plaintiff's hostile work environment claim.
CONCLUSION
The defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 dismissing all the plaintiff's claims is granted in its entirety. The Clerk of the Court is directed to enter judgment dismissing the complaint and closing this case.
SO ORDERED.