Summary
holding that a comment made by the defendant overheard by plaintiff was not probative of a discriminatory motive
Summary of this case from Carr v. N. Shore Long Island Jewish Health Sys.Opinion
07 Civ. 10946 (DLC).
November 12, 2009
For Plaintiff: Richard Kubick, New York, NY.
For Defendant: John T. Bauer, Lisa M. Griffith, Littler Mendelson, P.C., Melville, NY.
OPINION ORDER
Lydia Velez has sued her former employer, SES Operating Corporation doing business as Harlem East Life Plan ("HELP" or "defendant"), for race discrimination. Plaintiff was employed as a substance abuse counselor at HELP from March 1 to May 25, 2006. Plaintiff alleges that her employment was terminated because of her race or national origin in violation of federal, state, and local antidiscrimination statutes. For the following reasons, defendant's motion for summary judgment is granted.
BACKGROUND
The following facts are undisputed or presented in the light most favorable to plaintiff. HELP is a diagnostic and drug treatment facility providing substance abuse services, primary care, and chemical dependency treatment to an urban patient population. HELP is located in the East Harlem neighborhood of New York City, a community also known as "El Barrio." HELP has been in existence for over ten years and is managed by Executive Director Stuart Steiner ("Steiner"). Sixty-five percent of HELP's clients are Hispanic.
Plaintiff's opposing Rule 56.1 statement makes general objections to the form of evidence defendant relies upon in its Rule 56.1 statement as well as specific objections to particular assertions of fact. Plaintiff's general objections, founded on the purported inadmissibility of unsworn declarations under Federal Rule of Civil Procedure 56(e), are plainly unmeritorious.See 28 U.S.C. § 1746 (allowing unsworn declarations made under penalty of perjury to substitute for sworn affidavits); LeBoeuf, Lamb, Greene MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (unsworn declarations conforming to the requirements of § 1746 are admissible at summary judgment).
While defendant's Rule 56.1 statement includes record citations for each of its assertions of undisputed fact, the vast majority of plaintiff's objections fail to cite to contrary admissible evidence in the record. Plaintiff's Rule 56.1 statement thus fails to comply with Local Rule 56.1(d), which provides that each statement by the opponent "controverting any statement of material fact [] must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." As a result, those statements made by defendant that are not controverted by plaintiff's specific citations to the record are deemed admitted.
I. Start of Employment
In February 2006, plaintiff applied for a position as a substance abuse counselor at HELP by submitting her résumé to Marjorie Thadal, Administrator of HELP's Methadone Maintenance Treatment Program ("Thadal"). Plaintiff also filled out an employment application dated March 1. Plaintiff's application was considered by Thadal and by Joanne King, the Administrative Director of HELP ("King"). Together, Thadal and King formed the administrative team responsible for "recruiting, interviewing, and offering employment to applicants" and "for making determinations relating to the promotion, discipline and termination of HELP's employees." They must be in agreement on any decision to hire, fire, or promote an employee. King and Thadal interviewed plaintiff for the position of substance abuse counselor, and they decided to offer her employment. Plaintiff started work as a substance abuse counselor at HELP on or about March 1.
Shortly after being hired, plaintiff participated in a five-day training program for new HELP employees. Every substance abuse counselor hired by Thadal and King at or around the same time as plaintiff received the same training. Thereafter, plaintiff met on a monthly basis with her counseling supervisor, Sheryl Hunte ("Hunte"), to review her caseload and discuss HELP policies. Plaintiff also attended other occasional training held for all employees.
On or about April 20, a performance evaluation was completed for plaintiff concerning her work at HELP thus far; plaintiff reviewed and signed the evaluation form. Plaintiff states that she was not permitted to keep a copy of the evaluation form after signing it, and alleges that the form was subsequently altered or "tamper[ed] with" by Hunte, Thadal, or another HELP administrator.
Plaintiff's role as a substance abuse counselor involved managing a caseload of patients undergoing a methadone-based drug rehabilitation program. Among her specific duties was overseeing the collection of urine samples from her patients, a procedure referred to as a "supervised urine." Conducting a supervised urine requires a counselor to "stand in the bathroom of a patient who is the same gender as the counselor, [and] to listen and/or observe the patient as he/she urinates into a cup." The urine is later tested for drugs. Ordinarily, a counselor conducts supervised urines for his or her own patients, but if there is a gender conflict between the patient and the counselor, another counselor will be asked to do the supervising.
HELP designates one of its patients as the Patient Advocate, who at all relevant times was Deborah Adams ("Adams"). In her role as Patient Advocate, Adams serves as an informal liaison between the patient community and HELP staff. Among other duties, the Patient Advocate receives complaints from patients and submits the complaints in written form to HELP administrators. Adams utilizes a standard form for collecting written complaints, which is either filled out by the patient or completed by Adams on the patient's behalf. Adams maintains a Patient Complaint Log where she files all written patient complaint forms.
II. First Patient Complaint
On or about May 4, 2006, approximately two months after plaintiff had started working at HELP, a patient lodged a verbal complaint with Adams concerning plaintiff's conduct while conducting a supervised urine. Adams listened to the patient and then completed a written complaint form on the patient's behalf. The complaint, dated May 4, 2006, reads as follows:
Ms. ___ came to me on the above date and time stating that she had to give a supervised urine a few days ago, and counselor Lydia Velez did the supervising.
Ms. ___ said she was highly upset by the counselors tactics. She was "patted down" as if she was `in jail.' Ms. Velez also went into her socks to see if she had anything in them. Ms. said to her that she didn't have anything on her or in her socks, Ms. Velez then asked her what `was in her bra?' Ms. told her (Ms. Velez) that she shouldn't have been subjected to a search of that nature.
Adams signed the complaint form and submitted it to Thadal and to Nancy Rivera, Assistant Administrator of the Methadone Treatment Program and Corporate Compliance Officer ("Rivera"). The complaint form originally included the name of the patient, but the form was later redacted by defendant to protect the patient's privacy.
Thadal then carried out an investigation into the complaint. Thadal first interviewed the complaining patient in Adams's presence. The patient told Thadal that, during the supervised urine, plaintiff patted her down, went into her socks, and asked her if she was hiding anything in her bra. Thadal noted that "[t]he patient was very upset, and appeared sincere and credible when describing the incident." Thadal also spoke with the patient's counselor, Mark Simmons ("Simmons"), who informed Thadal that he had asked plaintiff to conduct the supervised urine because of a gender conflict between himself and the patient.
Thereafter, Thadal interviewed plaintiff about the complaint at a meeting in which plaintiff's supervisor, Hunte, was also in attendance. At the meeting, or prior to it, plaintiff was shown a copy of the complaint form and asked about the incident in question. Plaintiff explained to Thadal that she had supervised the patient's urine sample at Simmons's request. Plaintiff told Thadal that, on the date of the incident, plaintiff believed that the patient had taken drugs based on her observation of the patient's conduct. Plaintiff also stated that she had spotted an object on the patient's body during the supervised urine and that she had asked the patient to lift her pant legs and pat her socks while plaintiff watched so plaintiff could check if something was hidden there. Plaintiff explained at the meeting, however, that the patient had lied about plaintiff touching her. Plaintiff asserts that during this investigatory meeting, Thadal addressed plaintiff with a disrespectful and accusatory tone.
At her deposition, plaintiff authenticated the complaint form.
Through her deposition testimony taken in this action, plaintiff supplied additional details concerning the incident in question. Plaintiff testified that, during the supervised urine, the patient displayed an uncooperative attitude by, for example, cursing at plaintiff and telling her that the object she observed on the patient's person was "none of [plaintiff's] business." The patient did comply, however, with plaintiff's request that the patient hand over her jacket. Plaintiff also asserts that, after the patient had removed her jacket, plaintiff saw an object on the patient's person. Plaintiff did not stop the supervised urine and inform a supervisor when she observed the object, however, although that had been her protocol in the past. Plaintiff admits that she asked the patient to lift her pant legs so plaintiff could check for contraband. Plaintiff denies, however, that she "looked or picked in [the patient's] sock"; that she touched the patient; or that she asked the patient to consent to a pat-down. Nevertheless, plaintiff claims it would be "unethical" to fail to supervise a patient who is giving a urine sample because if "we are going to put it down on the label `supervised urine,' then it should be as such." Plaintiff states that, although she did not find a clean urine sample hidden on the patient, the results of patient's urine test confirmed that the patient had been taking drugs. Plaintiff nevertheless admits that it was important for HELP to take the patient's complaint seriously.
Based on her investigation into the complaint, Thadal concluded that there was no evidence that contradicted the patient's claims. At the investigatory meeting, Thadal and Hunte told plaintiff that it was inappropriate to touch patients during a supervised urine. Thadal and Hunte then discussed with plaintiff HELP's method for supervising the collection of urine specimens. Thadal also instructed Hunte to review with plaintiff HELP's policies on supervised urines during their next monthly supervision. Thadal advised plaintiff that she should be careful in how she supervises urine samples, and that any further problems with conducting supervised urines could jeopardize her continued employment.
On May 18, 2006, Hunte held a monthly supervision meeting with plaintiff. At this meeting, Hunte reviewed with plaintiff the "Canon Code of Ethical Principles" and discussed HELP's policy regarding supervised urines, which includes "observ[ing] collection of [urine samples] in a confidential and respectful manner, making certain there is no manipulation." Hunte specifically advised plaintiff that the supervised urine "must be performed in a respectful manner" and that plaintiff should not touch or search patients during the supervision. Hunte told plaintiff that if she suspected that a patient had manipulated or otherwise tampered with the sample, the proper procedure would be to put on a latex glove and grip the bottle to feel if the sample was cold. Hunte then prepared a monthly supervision report summarizing the conversation that was signed by both Hunte and plaintiff.
III. Second Patient Complaint
On May 19, 2006, a second complaint was filed against plaintiff with respect to her conduct during a supervised urine. The complaint form was filled out by the patient and submitted to Adams, the Patient Advocate. The complaint form reads:
I gave a supervised urine and I felt very uncomfortable by the way Ms. Velez, my Counsler took my urine from in between my legs. What I meant it was still in the cup and she didn't give me a chance to put it in the bottle. I felt she was to[o] close to my private area and also didn't give me space was right inside the stall with me. I've taken supervised urine before and nobody every made me feel like I was hiding some the she did [sic]. I feel I have nothing to hide. I don't want her to take my supervised urine again please have somebody else do it. Thank you.
The complaint form was signed by the patient, Adams, and Rivera. Adams circulated the written complaint to Rivera and Thadal.
Thadal conducted an investigation into the second complaint. Thadal first interviewed the complaining patient. The patient stated that, while she was in the process of giving a urine specimen, plaintiff made her feel very uncomfortable by standing in the bathroom stall with the patient and by grabbing the specimen cup from the patient's private area and pouring it into the specimen bottle herself. This action diverged from HELP's protocol, which is for the patient to pour the urine sample into the specimen bottle herself while the counselor waits outside the stall.
On or about May 24, Thadal met with plaintiff in the presence of Hunte and Adams to discuss the second complaint. Plaintiff was given a copy of the patient complaint and informed that this was the second complaint against her. When asked about the incident, plaintiff admitted that she had reached her hand into the stall and told the patient to hand her the urine, and plaintiff further acknowledged that she, not the patient, poured the sample into the specimen bottle. Thadal informed plaintiff at the conclusion of the meeting that, because of the two patient complaints against her, a decision would be made concerning plaintiff's continued employment at HELP. Plaintiff testified at her deposition that, at the May 24 meeting with Thadal and Hunte, Thadal's attitude was accusatory and her behavior was "totally unprofessional."
The plaintiff authenticated the complaint form at her deposition.
As with the first incident, plaintiff supplied additional details in her deposition concerning the second patient complaint. Plaintiff notes that she was very surprised to learn of the complaint, because the patient making the second complaint had defended plaintiff with respect to the first complaint and had volunteered to "kick [the first patient's] ass." Plaintiff asserts that, during the second patient's supervised urine, plaintiff did not stand inside the stall with the patient, but instead, she left the stall door open and stood outside while the patient urinated. Plaintiff states that, in any event, there was not enough space inside the stall for two people, implying that the patient must have been exaggerating. Acknowledging that she stuck her hand into the stall and requested the sample, plaintiff explains that she acted this way because she suspected the patient was trying to manipulate the urine sample. Plaintiff observed the patient making sudden movements inside the stall, perhaps in a conscious attempt to spill the cup. As with the first patient, plaintiff states that, although she did not find a clean urine sample on the patient, the patient's urine tested positive.
Aside from these two complaints against plaintiff, no witness or party is aware of any other patient complaints concerning the conduct of HELP employees during a supervised urine prior to, during, or after plaintiff's employment at HELP. Plaintiff admits that she is not aware of any other patient complaints concerning counselor conduct during urine specimen collections.
IV. May 25 Meeting and Termination
On May 25, a meeting was held with plaintiff, Thadal, and Hunte (the "May 25 meeting"). Steiner's son, Jonathan Steiner ("J. Steiner"), an administrative assistant at HELP, was also present. The events of this meeting were memorialized in a memorandum dated May 25 from Thadal to King, with copies also sent to Hunte, Steiner, and J. Steiner.
Plaintiff objects to the facts asserted in defendant's Rule 56.1 statement concerning the May 25 meeting and purports to controvert these facts by citing to contrary material in the record. The cited material, however, relates to an entirely different conversation which occurred later in the day on May 25. Thus, the facts as represented in defendant's statement of facts and as supported elsewhere in the record are deemed admitted.
At the May 25 meeting, Thadal gave plaintiff a copy of a memorandum that Thadal had drafted regarding her conversation with plaintiff on May 24 and detailing plaintiff's "inability to follow agency directives." After reading this memorandum, plaintiff "became defensive and behaved in a combative unprofessional manner," and displayed a "hostile and curt" attitude. Plaintiff "stood up out of her chair and proceeded to point her finger in [Thadal's] face." Plaintiff was asked to sit down and she complied. Plaintiff was then "made aware that her conduct was unprofessional and not acceptable." Thadal concluded the meeting and informed plaintiff that a decision would be made regarding her employment status.
Later the same day, Thadal met with King to discuss plaintiff's employment given the two patient complaints and in light of plaintiff's insubordinate conduct at the May 25 meeting. Thadal and King jointly decided that the termination of plaintiff's employment was warranted.
After meeting with King, Thadal went to plaintiff's office and personally advised plaintiff that she was fired. Plaintiff maintains that Thadal's attitude during this conversation was unprofessional. Plaintiff was then escorted out by security. At the time of the termination of plaintiff's employment, plaintiff was still on "probation."
On May 31, plaintiff wrote a letter addressed to the Executive Director of HELP protesting her firing. The letter outlined plaintiff's version of events concerning both patient complaints and also discussed a conference on or about May 24 or 25 in which plaintiff was chastised for being unprepared. The letter concluded by enumerating a list of specific protests, including that plaintiff was "not given due process"; that the allegations against plaintiff were not properly investigated; and that the administrator "t[ook] the easy way out" by "firing [plaintiff] instead of conducting a full fledged investigation." The letter did not allege that plaintiff was discriminated against based on her race or national origin.
V. HELP's Hiring Practices
As of late March 2006, the month plaintiff was hired, the Methadone Treatment Program in which plaintiff was employed was staffed by 21 counselors, including plaintiff. Of these, 11 were African-American and 10 were Hispanic. Of the 10 counselors who were Hispanic, 9 were recommended and hired by Thadal. Of these same 10 counselors, 3 were promoted to higher positions; 6 resigned their positions; and 1 (plaintiff) was fired. Throughout 2006, King and Thadal hired 17 individuals in total (not limited to substance abuse counselors); these 17 included 5 African-American, 10 Hispanic, and 2 Caucasian employees. In 2006, 5 total individuals were fired: 2 African-Americans and 3 Hispanics.
PROCEDURAL HISTORY
On or before February 7, 2007, plaintiff filed a charge of employment discrimination before the Equal Employment Opportunity Commission ("EEOC"). The charge alleged that plaintiff was "treated differently and/or less favorably because of her race and national origin than an employee of a different race or national origin, and has been retaliated against because she complained of employment discrimination, has filed a charge of discrimination and has participated in investigation of discrimination." The charge also alleged that the employer "caus[ed] . . . claimant to be arrested subsequent to her termination on or about August 7, 2006 . . . charges which was [sic] ultimately dismissed." The EEOC issued plaintiff a "Right to Sue" letter on November 7, 2007.
On November 27, 2007, plaintiff filed this action, alleging various causes of action sounding in tort and contract as well as employment discrimination in violation of federal, state, and local statutes. On April 11, 2008, a stipulation was executed dismissing with prejudice all claims arising under the New York Workers' Compensation Laws, the Civil Rights Act of 1966, and New York Labor Law 20-C. On July 3, 2008, the Honorable Gerard E. Lynch, to whom this case was assigned, granted defendant's motion for judgment on the pleadings as to plaintiff's claims of negligence, breach of contract, intentional infliction of emotional distress, false arrest, malicious prosecution, and all claims under 42 U.S.C. §§ 1983, 1985, and 1986. Although Judge Lynch granted plaintiff's request for leave to replead her intentional tort and breach-of-contract claims, plaintiff did not replead them.
Following the close of discovery, defendant moved for summary judgment on all remaining claims. The remaining claims are for race discrimination, based on plaintiff's identification of herself as a Puerto Rican Hispanic. Plaintiff identifies the adverse employment action as her firing. On October 1, this case was reassigned to this Court.
DISCUSSION
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot "rely merely on allegations or denials" contained in the pleadings. Fed.R.Civ.P. 56(e); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). That is, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, only disputes over material facts — "facts that might affect the outcome of the suit under the governing law" — will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson). In other words, the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48.
These general standards still apply "even in the fact-intensive context of discrimination cases." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted). Courts must exercise "an extra measure of caution" in granting summary judgment in discrimination cases, however, "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence."Id. (citation omitted); see also Holcomb, 521 F.3d at 137 ("We have repeatedly expressed the need for caution about granting summary judgment to an employer in a discrimination case where . . . the merits turn on a dispute as to the employer's intent."); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) ("In discrimination cases where state of mind is at issue, we affirm a grant of summary judgment in favor of an employer sparingly because careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination." (citation omitted)). Even in an employment discrimination case, however, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."Holcomb, 521 F.3d at 137. Thus, the ultimate test for summary judgment, in discrimination cases as in other cases, "is whether the evidence can reasonably support a verdict in plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).
Plaintiff brings claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law, the New York City Human Rights Law, and 42 U.S.C. § 1981. Since the analyses to be conducted under these statutes are identical in all respects material to this motion, see Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (applying "the same analytical lens" as Title VII to the New York State and New York City Human Rights Laws); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (same for § 1981), only the Title VII claim will be addressed below.
Title VII of the Civil Rights Act of 1964 provides that it is an "unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual's race." 42 U.S.C. § 2000e-(2)(a)(1). As amended in 1991, Title VII makes clear that "an unlawful employment practice is established when the complaining party demonstrates that race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m); see also Aulicino v. N.Y. City Dep't of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009) (stating that an employment practice violates Title VII when it is "based in whole or in part on discrimination" (citation omitted)). The New York State Human Rights Law provides that that "[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . race . . . [or] national origin . . . to discharge from employment such individual. . . ." N.Y. State Exec. Code § 296(1)(b). The New York City Human Rights Law provides that "[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . . because of the actual or perceived . . . race . . . [or] national origin . . . of any person . . . to discharge from employment such person. . . ." N.Y.C. Admin. Code § 8-107.
Claims of employment discrimination brought under Title VII are analyzed under the burden-shifting approach set forth inMcDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing: "(1) that [s]he belonged to a protected class; (2) that [s]he was qualified for the position [s]he held; (3) that [s]he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (citation omitted). A plaintiff's burden in presenting prima facie evidence in a Title VII case is "de minimis." Id. (citation omitted).
If the plaintiff satisfies this initial burden, "a presumption of discrimination arises and the burden shifts to the defendant to proffer some legitimate, nondiscriminatory reason for the adverse decision or action." Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (citation omitted). If the defendant can offer such a reason, "the presumption of discrimination created by the prima facie case drops out of the analysis." Id. (citation omitted). The defendant is then entitled to summary judgment unless the plaintiff can show, without the benefit of the presumption from the prima facie case, that the defendant's employment decision "was more likely than not based in whole or in part on discrimination." Aulicino, 580 F.3d at 80 (citation omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." (citation omitted)).
I. Prima Facie Case
Plaintiff bears the initial burden of "making out a prima facie case of discrimination." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). Defendant concedes that the first and third elements of plaintiff's prima facie case — that plaintiff belongs to a protected class and that plaintiff suffered an adverse employment action — have been satisfied. Defendant disputes, however, that plaintiff has satisfied the second or fourth prongs, concerning plaintiff's qualifications and the existence of a permissible inference of discrimination respectively.
The definition of the second prong admits of several linguistic variations. In the majority of cases, the second prong is described as the plaintiff's duty to show, at a minimum, that she was "qualified for the position." Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (citation omitted); see also Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) ("To show `qualification' . . . the plaintiff need not show perfect performance or even average performance. Instead, she need only make the minimal showing that she possesses the basic skills necessary for performance of the job." (citation omitted)). A few cases, however, define the prong as requiring plaintiff to show that, prior to being fired, she had been "performing h[er] duties satisfactorily." Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 90 (2d Cir. 2001) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997)); see also Dawson, 398 F.3d at 216 (requiring a Title VII plaintiff to show he was "competent to perform the job or is performing his duties satisfactorily"). As Slattery itself pointed out, however, this latter standard should not be interpreted as "rais[ing] the standard set by the Supreme Court for what suffices to show qualification," and thus, the difference "between `qualified for the position' and `performing, satisfactorily'" is only a "mere variation in terminology."Slattery, 248 F.3d at 91 (citation omitted). Instead, "all that is required is that the plaintiff establish basic eligibility for the position at issue, and not the greater showing that he satisfies the employer." Id. at 92. Because the inference required by the second prong of the prima facie case "is not difficult to draw," id., it will be assumed without deciding that plaintiff has satisfied the second prong.
With respect to the fourth prong of a prima facie claim for discriminatory discharge, a plaintiff is only required to "adduce some evidence that would permit a factfinder to infer . . . that the termination occurred under circumstances giving rise to an inference of discrimination." Patterson, 375 F.3d at 221. Plaintiff may carry her burden on this prong "by showing that the employer subjected h[er] to disparate treatment, that is, treated h[er] less favorably than a similarly situated employee outside h[er] protected group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). "A plaintiff relying on disparate treatment evidence `must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.'" Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (citing Graham, 230 F.3d at 39). Plaintiff may also satisfy this fourth element by demonstrating,inter alia, that the employer criticized plaintiff's performance in "ethnically degrading terms," or made "invidious comments about others in the employee's protected group," or otherwise demonstrated bias in "the sequence of events leading to the plaintiff's discharge." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (citation omitted). Therefore, in reviewing the record, the court is careful to search for any kind of evidence that would support plaintiff's claim of intentional discrimination, bearing in mind that "`smoking gun' evidence of discriminatory intent is rare and most often must be inferred." Forsyth v. Fed'n Employment Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005); see also Holcomb, 521 F.3d at 141 ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." (citation omitted)).
Even in light of the minimal burden applicable at the prima facie stage, plaintiff has failed to produce evidence sufficient to satisfy the fourth prong. Plaintiff has identified no evidence, whether direct or circumstantial, that would permit a reasonable fact-finder to draw an inference that plaintiff's discharge was the result of unlawful discrimination against her because of her race or ethnicity.
Although plaintiff's Rule 56.1 statement does not comply with the Local Rules, plaintiff's opposition brief does allude to two categories of evidence that she asserts support an inference of discrimination. Plaintiff contends that Hispanic employees were treated less favorably than African-American employees, as evidenced by favorable treatment given to similarly situated employees and by discriminatory comments made by supervisors regarding Hispanics.
Plaintiff cites the testimony of plaintiff's former colleague, Cristina Rodriguez ("Rodriguez"), who testified regarding her "opinion" that "people [i.e., employees] who are not African American were treated differently" by HELP administrators. Rodriguez states that Hispanic counselors would become a "target" if they spoke at meetings, meaning that Thadal or other administrators would thereafter "pull their [patients'] charts," whereas African-American counselors could speak more freely without subsequent oversight. Rodriguez states that she felt retaliated against for speaking up during meetings and that she resigned her position at HELP because she believed she would be fired if she did not quit first. Rodriguez's opinion, however, represents nothing more than a "conclusory allegation[]" insufficient to resist a motion for summary judgment. Holcomb, 521 F.3d at 137; see also Bickerstaff v. Vassar Coll., 196 F.3d 435, 451 (2d Cir. 1999) ("To satisfy Rule 56(e), affidavits must be based upon concrete particulars, not conclusory allegations." (citation omitted)).
Plaintiff also identifies three colleagues who she believes were similarly situated to herself but who received more favorable treatment. First, plaintiff testifies that she has learned of an incident at HELP, occurring after plaintiff was fired, where a patient was strip-searched in connection with a supervised urine and made to walk down a corridor in a state of undress. Plaintiff maintains that the counselor responsible for the strip-search, an African-American, was not fired as a result of the incident. This evidence is plainly inadmissible because plaintiff lacks firsthand knowledge of the incident. Second, plaintiff maintains that a female counselor who became involved in a sexual relationship with a colleague, contrary to company policy, was not disciplined for this infraction but instead was promoted. Because the counselor in question was Hispanic, however, such evidence does not support plaintiff's claim of discrimination. Third, plaintiff asserts that Rodriguez failed to do supervised urine tests on her patients, but was not fired as a result. Again, this evidence does not support plaintiff's claim of discrimination because Rodriguez herself is Hispanic.
Aside from these assertions, plaintiff concedes that she is not aware of any HELP employee who received more favorable treatment after having been the subject of two patient complaints for conduct during a supervised urine. The record reflects that no party or witness is aware of any other patient complaints concerning a counselor's conduct while supervising the collection of urine specimens. Moreover, it is undisputed, as described above, that the statistical evidence supplied by defendant concerning its hiring and retention policies does not evidence any pattern of race-based discrimination.
The second category of evidence of discrimination offered by plaintiff consists of various comments made by Thadal and Steiner to plaintiff or other HELP employees. Plaintiff identifies four specific instances in which she alleges that racially insensitive language was used by HELP administrators. The first instance occurred in early May 2006 when plaintiff and Rodriguez overheard a telephone conversation in which Thadal allegedly said the word "spics." The second instance concerns a lewd and derogatory remark that Steiner's secretary, Lisa Carmona ("Carmona"), told plaintiff that Steiner had made to her in the past. A third incident concerned a comment that Thadal allegedly muttered under her breath while leaving a "quality team" meeting at which plaintiff was criticized for failing to prepare. Thadal is said to have uttered the phrase "dumb Puerto Rican" in reference to plaintiff. Although other people were present, no one heard the remark except plaintiff. Finally, plaintiff alleges that during the final conversation with Thadal in which plaintiff was fired, Thadal made a reference to "you people" while speaking to plaintiff.
It is true that "invidious comments about others in the employee's protected group," particularly when uttered during "the sequence of events leading to the plaintiff's discharge," can support a prima facie inference of discrimination. Sassaman, 566 F.3d at 312 (citation omitted). Nevertheless, plaintiff's evidence fails to create a triable issue of material fact for several reasons. First, plaintiff's testimony that she was told by Carmona that Steiner said something lewd to her is clearly inadmissible hearsay because plaintiff lacks personal knowledge of the statement. See Fed.R.Civ.P. 56(e) (requiring evidence at summary judgment to be "based on personal knowledge");Patterson, 375 F.3d at 219 (stating that Rule 56(e) is not satisfied by testimony "on information and belief");Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) ("Affidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial.").
Second, plaintiff's allegations that Thadal called plaintiff a "dumb Puerto Rican," that Thadal said the word "spics" during a telephone call with an unknown party, and that Thadal referred to "you people" while speaking to plaintiff, are effectively negated by the fact that Thadal herself was responsible (along with King) for the decision to hire plaintiff fewer than three months earlier. "When the same actor hires a person already within the protected class, and then later fires that same person, `it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire.'" Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (quoting Grady v. Affiliated Ctr., Inc., 130 F.3d 553, 560 (2d Cir. 1997)). The rationale of this "same actor inference" is especially persuasive "when the firing occurred only a short time after the hiring." Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir. 2003); see also Carlton, 202 F.3d at 137 ("Case law teaches that where the termination occurs within a relatively short time after the hiring there is a strong inference that discrimination was not a motivating factor in the employment decision."); Grady, 130 F.3d at 560 (noting that the same actor inference is "especially" strong "when the firing has occurred only a short time after the hiring"). Here, where fewer than three months had elapsed since plaintiff was hired, the same actor inference is a "highly relevant" factor in the Court's inquiry. Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000) (three-year time span).
It is worth noting that plaintiff first mentioned these remarks at her deposition over two years after she was fired. Plaintiff concedes that, at the time these remarks were made, she did not complain to anyone at HELP, notwithstanding plaintiff's statement in the pleadings that "plaintiff made numerous complaints to the defendants" pertaining to racial discrimination. After plaintiff was fired, plaintiff did not include these comments in her detailed letter to Steiner protesting the termination, nor did the letter even allege racial discrimination generally. Finally, the plaintiff did not mention these remarks in her charge to the EEOC complaining of racial discrimination or in the complaint she filed in this action.
Third, the "spics" comment made by Thadal to an unknown person on the telephone — a comment overheard by plaintiff and Rodriguez while standing outside her office — is best characterized as a "stray remark" that is not probative of a discriminatory motive. As the Court of Appeals clarified:
[T]he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination. For example, remarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark. The more a remark evinces a discriminatory state of mind, and the closer the remark's relation to the allegedly discriminatory behavior, the more probative that remark will be.Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007) (citation omitted). Here, it is true that the remark in question was made by Thadal, one of the parties responsible for discharging plaintiff. Nevertheless, the remark was made in a private telephone conversation and not directed at plaintiff. Most significantly, because the context of the remark is not known, it would be improper to attach significant weight to it.
II. HELP's Reasons for Firing Plaintiff
Assuming arguendo that plaintiff had presented prima facie evidence of discrimination, the burden would then shift to defendant to produce admissible evidence that plaintiff was fired for a legitimate, nondiscriminatory reason. Defendant's burden at this stage is "one of production, not persuasion." Reeves, 530 U.S. at 142. As such, the Court does not pass judgment on the soundness or credibility of the reasons offered by defendant, so long as the reasons given are "clear and specific" and, therefore, sufficient to raise a genuine issue of material fact as to whether defendant discriminated. Mandell, 316 F.3d at 381 (citation omitted); see also Schnabel, 232 F.3d at 88.
Here, defendant has succeeded in producing clear and specific evidence that plaintiff was fired for a legitimate, nondiscriminatory reason. The reasons adduced for plaintiff's discharge include, among others, the two patient complaints against her for inappropriate conduct while supervising urine specimens and plaintiff's insubordinate conduct during the May 25 meeting. This evidence satisfies defendant's burden of showing that HELP's reason for firing plaintiff was nondiscriminatory.
III. Plaintiff's Burden of Showing Pretext
Assuming that plaintiff had made out a prima facie case, and given that defendant has produced evidence showing a legitimate, nondiscriminatory reason for firing plaintiff, theMcDonnell-Douglas presumptions then "disappear from the case."James, 233 F.3d at 156. The final burden rests on plaintiff to demonstrate that the reasons proffered by defendant were pretextual, "`either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" Dister v. Cont'1 Group, Inc., 859 F.2d 1108, 1113 (2d Cir. 1988) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Depending on the relevant facts, a prima facie case plus a showing of falsity "in many cases . . . will be enough to permit a rational finder of fact to decide that the decision was motivated by an improper motive" and thereby allow a plaintiff to survive summary judgment. Holcomb, 521 F.3d at 141.
Plaintiff has failed to produce admissible evidence tending to show that defendant's reasons for firing her were pretextual. Plaintiff concedes that HELP had a right to be concerned that there were two patient complaints against plaintiff in a two-week period. She concedes that it would have been inappropriate for HELP to have ignored these complaints. Plaintiff merely contends that Thadal's conduct during the investigation of these complaints was "unprofessional."
Likewise, plaintiff has failed to produce any admissible evidence that would permit a rational fact-finder to draw the ultimate inference that defendant was motivated by racial animus in firing plaintiff. For the same reasons that the circumstantial evidence of anti-Hispanic remarks made by Thadal and Steiner failed to raise an inference of discrimination at the prima facie stage, this evidence is also insufficient to create a genuine issue of material fact on the issue of pretext. Even if the fact-finder concluded that the remarks were actually made by Thadal, the same actor inference would negate whatever force the remarks would have. Aside from these four remarks, plaintiff acknowledged in her deposition that she cannot allege any specific basis for her claim.
In her opposition brief, plaintiff argues that defendant should not have fired her because of the two patient complaints since she was simply trying to be diligent in performing her work. Plaintiff maintains that it is the other counselors at HELP that are not performing supervised urines properly because they "do not, in actuality, `supervise' the supervised urine process." Plaintiff also notes that "nowhere in the defendants' voluminous employee documentation" is there a specific reference to the fact that touching or approaching patients during a supervised urine is prohibited, and plaintiff further contends that "the second complaint . . . was of a different manner of supervision than the conduct of the first complaint," such that plaintiff was not fairly put on notice prior to the second complaint. Finally, plaintiff argues that the patient complaint forms were "flawed" and that "the legitimacy and veracity of the assertions of the unidentified patients" who complained about plaintiff "obviously cannot be blindly accepted."
Plaintiff also raises a number of issues concerning discovery in her brief, and specifically, makes a number of unsubstantiated claims that defendant's documents "mysteriously" disappeared or were tampered with. Summary judgment practice following the close of discovery is an inappropriate forum to raise discovery disputes for the first time. It is further noted that plaintiff herself was previously warned at least once about her own failure to fulfill discovery obligations. See Velez v. SES Operating Corp., No. 07-cv-10946 (GEL), 2008 WL 2662808 (S.D.N.Y. July 3, 2008) (describing plaintiff's approach to her discovery obligations as "somewhat cavalier" and "direct[ing]" her to "comply with all outstanding discovery obligations."). If plaintiff believed that she lacked the information necessary to oppose defendant's summary judgment motion and was entitled to reopen discovery, the opportunity was available to her to submit an affidavit under Rule 56(f) requesting further discovery. Plaintiff did not do so, and this is "fatal to [her] claim."Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir. 1999); see also Williams v. R.H. Donnelly Corp., 368 F.3d 123, 126 n.l (2d Cir. 2004) (holding that plaintiffs' failure to file a Rule 56(f) affidavit is "itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate" (citation omitted)).
It is not the Court's role to pass judgment on whether HELP made a wise decision in firing plaintiff nor, indeed, to resolve whether HELP made its decision hastily or on the basis of flawed information. "[I]t is not the role of federal courts to review the correctness of employment decisions or the processes by which those decisions are made." Sassaman, 566 F.3d at 314. The law requires courts to respect an employer's decision to hire or fire employees according to its own criteria, so long as they do not include unlawful discrimination. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ("[A] court must respect [an] employer's unfettered discretion to choose among qualified candidates." (citation omitted)); Dister, 859 F.2d at 1116 ("[I]t is not the function of a fact-finder to second-guess business decisions."). Thus, the purpose of Title VII (and its companion state and local statutes) is not to review employment decisions or to protect employees from all forms of adverse treatment in the workplace, but to ensure "that the workplace be an environment free of discrimination, where race is not a barrier to opportunity." Ricci v. DeStefano, 557 U.S., 129 S. Ct. 2658, 2674 (2009).
The corollary of these principles in the instant case is that the Court need not determine whether the patient complaints against plaintiff were credible, accurate, or worthy of action. Indeed, it is of no relevance whether plaintiff actually engaged in the behavior complained of by her patients, assuming that defendant's reliance on the patient complaints is not shown by plaintiff to have been pretextual. "In a discrimination case . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in whatmotivated the employer; the factual validity of the underlying imputation against the employee is not at issue." McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (citation omitted); see also Dister, 859 F.2d at 1116 ("Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons" for firing a plaintiff.).
Under other circumstances, the evidence presented by plaintiff — in particular, plaintiff's allegations concerning discriminatory comments made by Thadal prior to plaintiff's discharge — might suffice to present a triable issue. Nevertheless, even while recognizing that it is not the court's function to "to weigh the evidence and determine the truth of the matter" at the summary judgment stage, Anderson, 477 U.S. at 249, it is clear upon "examin[ing] the entire record" that no reasonable fact-finder could find in plaintiff's favor. Byrnie, 243 F.3d at 102 (citation omitted); see also id. ("At summary judgment in an employment discrimination case, a court should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer."). Here, the combined effect of the same actor inference, the statistical evidence of defendant's employment practices, and the fact that plaintiff's averments of discriminatory comments arose for the first time at plaintiff's deposition, leads to the conclusion that no reasonable jury could return a verdict for plaintiff.
CONCLUSION
Defendant's February 13, 2009 motion for summary judgment is granted. The Clerk of Court shall close the case.
SO ORDERED: