Brown v. Mental Health and Addiction Services
Filing
35
ORDER: Defendant's 29 Motion for Summary Judgment is GRANTED. See attached ruling. Signed by Judge Donna F. Martinez on 3/30/2018. (Greenspoon, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGIA BROWN,
Plaintiff,
v.
STATE OF CONNECTICUT, DEPT.
OF MENTAL HEALTH AND
ADDICTION SERVICES,
Defendant.
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CASE NO. 3:15cv1801(DFM)
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Georgia Brown, brings this action against her
employer, the State of Connecticut, Department of Mental Health
and Addiction Services (“DMHAS” or “defendant”), alleging racial
discrimination pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq.
She alleges that
DMHAS discriminated against her on the basis of her race when it
disciplined her by suspending her without pay for five days as a
result of alleged patient abuse.
Pending before the court is
defendant’s motion for summary judgment. (Doc. #29.)
For the
reasons set forth below, the motion is GRANTED. 1
1
This is not a recommended ruling; the parties consented to the
jurisdiction of a magistrate judge. (Doc. #25.) See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73(b).
I.
Factual Background
The following facts, drawn from the parties’ Local Rule
56(a) statements, are undisputed.2
The plaintiff, who is African-American, was hired by DMHAS
in October 2007 as a Mental Health Assistant 1 ("MHA-1").
She
remained an MHA-1 at all times relevant to this case. DMHAS’
Local Rule 56(a)(1) Statement of Facts, Doc. #29-2 (“DMHAS’
SOF”) ¶ 1, Plaintiff’s Local Rule 56(a)(2) Statement of Facts,
Doc. #30-1 (“Pl.’s SOF”) ¶ A.1.)
On December 25, 2012, plaintiff and Anita Suker (“Suker”),
another MHA-1 who is white, were assigned to provide direct care
to RM, a patient in defendant's General Psychology Division.
They were to bathe RM and put him to bed. That evening, RM
complained to Suker that plaintiff had treated him roughly
during his transfer into bed, causing him unnecessary pain.
(DMHAS’ SOF ¶¶ 2, 3; Pl’s SOF ¶¶ A.2, A.3.) RM complained only
about plaintiff; he did not allege that Suker had hurt him.
Suker reported RM's abuse complaint to DMHAS supervision that
evening, as she was obligated to do. (DMHAS’ SOF ¶¶ 4, 5; Pl’s
SOF ¶¶ A.4, A.5.)
2
Plaintiff admitted all of defendant’s fifteen proffered facts.
(Pl.’s SOF, at 1-2.)
2
DMHAS investigated RM's allegations of abusive conduct by
plaintiff.
Based on its investigation, DMHAS concluded that
plaintiff had been physically abusive and unnecessarily rough
with RM, and suspended plaintiff without pay for five days.
(DMHAS’ SOF ¶¶ 6, 7; Pl’s SOF ¶¶ A.6, A.7.)
Through her union grievance process, plaintiff exercised
her right to appeal her disciplinary suspension, and eventually
submitted the matter for binding arbitration. (DMHAS’ SOF ¶ 8;
Pl’s SOF, ¶ A.8.) The arbitrator found that plaintiff's
testimony regarding the RM abuse allegation was inconsistent
among plaintiff’s own various versions, and that her testimony
was not credible. (DMHAS’ SOF ¶ 10, Pl’s SOF ¶ A.10.)
She
concluded that plaintiff "was inappropriately rough in her
handling of [RM] on December 25, 2012, and [DMHAS] had just
cause to issue her discipline." (DMHAS’ SOF ¶ 9; Pl’s SOF, ¶
A.9.)
The arbitrator made the following findings of fact:
On February 27, 2013, following an investigation, the
Department of Mental Health and Addiction Services (DMHAS)
issued a five-day disciplinary suspension to Georgia Brown,
a Mental Health Assistant 1 at Connecticut Valley Hospital.
The Department alleged that Ms. Brown had violated DMHAS
General Work Rule #19, which states:
Physical violence, verbal abuse, inappropriate or
indecent conduct and behavior that endangers the
safety and welfare of persons or property is
prohibited.
3
According to the disciplinary letter [dated February
27, 2013]:
Credible evidence was obtained that substantiates
that you were physically abusive and handled the
patient in an unnecessarily rough manner when
removing his pants, causing him pain. This was
found to be abusive and employee misconduct.
The incident at issue occurred on the evening of
December 25, 2012. Coworkers Georg[ia] Brown and Anita
Suker were tasked with preparing patient [RM] for bed.
[RM]'s primary language is Spanish, though he is said to
understand and speak English to a limited extent. Ms. Brown
does not speak Spanish, but studied it for three years and
understands/speaks some words. There is no dispute that
[RM] is able to make his immediate needs known to staff
members. There are Spanish-speaking staff members available
as the need arises to communicate more fully with [RM].
[RM] is a bilateral amputee, confined to a wheel
chair. He has serious skin issues of which all staff are
aware. His buttocks are particularly painful due to the
breakdown of his skin in that area. Undressing [RM] and
transferring him from his wheel chair to his bed is a twoperson operation, involving a hydraulic ["Hoyer"] hoist.
Because of [RM]'s skin condition, his pants are removed
after he is hoisted in the air out of his chair so that the
clothing does not chafe his skin. He has a catheter.
On the evening of December 25, [2012, RM] became upset
and complained loudly of pain while he was being prepared
for bed [by Brown and Suker]. There are conflicting
versions by Ms. Brown and Ms. Suker of what transpired as
[RM] was being undressed but it is undisputed that Brown
and Suker had words with each other while in the process of
undressing [RM] and that immediately after getting [RM]
settled in his bed, Suker reported to a nurse that Brown
had handled [RM] inappropriately. The complaint was
immediately brought to the attention of Head Nurse Beverly
Lanoie, who summoned a Spanish-speaking Assistant to hear
what was vexing [RM]. [RM,] tearful and still upset,
reported that Brown had been rough with him while
undressing him, pulling his pants out from under his
buttocks while he was still seated, causing him significant
pain, and that Brown had been rude and cursed him in
Spanish. The matter was then raised to Supervising Nurse
Kim Michalsky.
4
A thorough investigation was conducted, including
interviews of all participants and potential witnesses. On
the evening of the event, Ms. Brown was questioned by and
gave a sworn statement to DMHAS Public Safety [Police]
Officers. On January 23, 2013, she was interviewed by Kathy
Winkeler, Principal HR Specialist in DMHAS Labor Relations
and she provided a written statement.
At the end of the investigation, DMHAS concluded that
the descriptions of the event given independently by [RM]
and Ms. Suker were credible and that Ms. Brown's version,
which conflicted in key respects with [RM]'s and Suker's,
could not be credited. DMHAS noted that Brown had been
counseled previously for being rude and disrespectful, and
that she had received a disciplinary warning in 2012 for
not helping a patient in a wheelchair after a nurse had
asked her for help. Accordingly, DMHAS imposed the five-day
suspension that is at issue here.
(DMHAS’ SOF ¶ 13; Pl’s SOF, ¶ A.13.)
Defendant ordinarily suspends any MHA-1 for a substantiated
instance of patient abuse. The arbitrator found that, "[t]here
was no dispute in this matter that if it is found that
[plaintiff] is guilty as charged [of patient abuse], the [five
day suspension] penalty imposed was appropriate."
(DMHAS’ SOF
¶¶ 14, 15; Pl’s SOF, ¶¶ A.14, A.15.)
Plaintiff knows of no other DMHAS employees who were proven
to have abused a patient, not merely accused, but did not
receive a disciplinary suspension.
¶ A.11.)
(DMHAS’ SOF ¶ 11; Pl’s SOF,
Plaintiff has no direct evidence that any DMHAS
employee discriminated against her because of her race or color.
(DMHAS’ SOF ¶ 12; Pl’s SOF, ¶ A.12.) This action followed.
5
II.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A “material” fact is a fact that influences the
case’s outcome under governing law.
Inc., 477 U.S. 242, 247–48 (1986).
Anderson v. Liberty Lobby,
A “genuine” dispute is one
that a reasonable jury could resolve in favor of the non-movant.
Id.
The moving party bears the initial burden of establishing
that there are no genuine disputes as to any material fact.
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
Once such a showing is made, the non-movant must show that there
is a genuine issue for trial.
Id.
The court may rely on
admissible evidence only, Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010), and must view the evidence in the record in the
light most favorable to the non-movant, drawing all reasonable
inferences in that party’s favor.
Weinstock, 224 F.3d at 41.
A party opposing summary judgment cannot defeat the
motion by relying on the allegations in his pleading, or
on conclusory statements, or on mere assertions that
affidavits supporting the motion are not credible. At
the
summary
judgment
stage
of
the
proceeding,
[p]laintiffs are required to present admissible evidence
in support of their allegations; allegations alone,
without evidence to back them up, are not sufficient .
. . .
Summary judgment cannot be defeated by the
presentation . . . of but a scintilla of evidence
supporting [a] claim . . . .
6
Reaes v. City of Bridgeport, No. 3:13CV1508(DFM), 2017 WL
553380, at *2 (D. Conn. Feb. 10, 2017) (citations and internal
quotation marks omitted).
III. Discussion
Title VII of the Civil Rights Act provides that “[i]t shall
be an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
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).
Plaintiff asserts
a claim of disparate treatment based upon her race.
(Complaint,
¶ 13.)
Plaintiff’s Title VII disparate treatment claim is analyzed
under the familiar three-step, burden-shifting analysis
described in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973).
The plaintiff first must establish a prima facie
case by showing that she is a member of a protected class; she
was qualified for the position for which she applied; she
suffered an adverse employment action; and the adverse
employment action occurred under circumstances giving rise to an
inference of discriminatory intent.
Id. at 802. See also Brown
v. Waterbury Bd. of Educ., 247 F. Supp. 3d 196, 207 (D. Conn.
7
2017)(discussing elements of a Title VII disparate treatment
claim).
If the plaintiff establishes a prima facie case, the
burden of production shifts to the employer to articulate a
legitimate, non-discriminatory reason for the adverse employment
action.
Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981) (citing McDonnell, 411 U.S. at 804).
If
the employer does so, the burden shifts back to the plaintiff to
prove by a preponderance of the evidence that the employer’s
proffered reason was a pretext for discrimination.
U.S. at 253.
Burdine, 450
In showing pretext, the plaintiff need not show
that the employer’s proffered non-discriminatory reason is
untrue, rather she must “establish . . ., by a preponderance of
the evidence, that discrimination played a role in an adverse
employment decision.”
Henry v. Wyeth Pharmaceuticals, Inc., 616
F.3d 134, 156-57 (2d Cir. 2010). The ultimate burden of
persuasion “remains at all times with the plaintiff.”
450 U.S. at 253.
Burdine,
See also Brown v. Waterbury Bd. of Educ., 247
F. Supp. 3d 196, 211-212 (D. Conn. 2017)(same).
Defendant contends that it is entitled to summary judgment
because plaintiff cannot demonstrate that the discipline imposed
gives rise to an inference of discrimination, and she cannot
prove that employer’s proffered reason for the discipline was a
8
pretext for discrimination.
(Doc. #29-1 at 8.)
Plaintiff
argues that summary judgment should not enter because she has
proffered evidence that “shows that the plaintiff was treated
differently from similarly situated co-workers not in her
protected class.”
(Doc. #30 at 3.)
1. Prima Facie Case
The evidence necessary to satisfy the plaintiff’s initial
burden is de minimis.
Zimmermann v. Assoc. First Capital Corp.,
251 F.3d 376, 381 (2d Cir. 2001).
The parties do not dispute
that plaintiff is a member of a protected class, was qualified
for the MHA-1 position at which she worked, and suffered an
adverse employment action (the five day disciplinary
suspension). (Doc. #29-1 at 8.) The only remaining question is
whether plaintiff has demonstrated circumstances giving rise to
an inference of discrimination.
A plaintiff can support this
burden by
(a) demonstrating that similarly situated employees of
a different race or national origin were treated more
favorably, (b) showing that there were remarks made by
decisionmakers that could be viewed as reflecting a
discriminatory animus, or (c) proving that there were
other circumstances giving rise to an inference of
discrimination on the basis of [the] plaintiff's race or
national origin.
Nguyen v. Dep’t of Corr. & Cmty. Servs., 169 F. Supp. 3d 375,
388 (S.D.N.Y. 2016) (citation and internal quotation marks
9
omitted). Here, plaintiff must offer evidence that gives rise to
an inference that she was treated differently from other
employees because of her race.
Although plaintiff makes an
argument regarding similarly situated employees, she fails to
show sufficient evidence to support her argument.
“A plaintiff may raise an inference of discriminatory
intent by showing that the employer . . . treated her less
favorably than a similarly situated employee outside her
protected group, i.e., a ‘comparator.’”.
Joye v. PSCH, Inc.,
No. 14CV3809 (DLC), 2016 WL 6952252, at *6 (S.D.N.Y. Nov. 28,
2016); see also Mandell v. County of Suffolk, 316 F.3d 368, 379
(2d Cir. 2003) (“[A] showing that the employer treated plaintiff
less favorably than a similarly situated employee outside his
protected group is a recognized method of raising an inference
of discrimination for purposes of making out a prima facie
case.”).
A plaintiff relying on comparator evidence “must show
she was similarly situated in all material respects to the
individuals with whom she seeks to compare herself.”
Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)(citation
omitted).
Plaintiff has named a purported comparator, Anita Suker,
who is white.
Plaintiff has not shown, however, that the DMHAS
“treated [her] less favorably than a similarly situated employee
10
outside of [her] protected group.”
Graham v. Long Island R.R.,
230 F.3d at 39; see, e.g., Russell v. Hughes, No. 3:07CV-527
(WWE), 2009 WL 1212754, at *3 (D. Conn. Apr. 30, 2009) (granting
summary judgment where plaintiff “failed to produce any evidence
regarding . . . comparators, including their names, their
supervisors, their positions or their actions that may be
analogous to plaintiff’s.”).
Suker is not “similarly situated,”
because, unlike plaintiff, she was not accused of abusing a
patient. (DMHAS’ SOF, ¶¶ 10-13: Pl’s SOF, ¶¶ A.10-A.13.)
Plaintiff also argues that “Kim Turnage, a Caucasian
female, perpetrated physical abuse of a patient.
She was
transferred off the unit but was not given a suspension.”
SOF ¶ B.7.)
(Pl’s
She furthers maintains that two other unnamed
“Caucasian staff members perpetrated serious physical abuse of a
patient.
They also were transferred off the unit but were not
suspended.”
(Id. at ¶ B.8.)3
Additionally, she asserts that the
“investigator in the plaintiff’s case also investigated a
comparable accusation against a white male staff member, but in
his case [the investigator] helped him write a report that
3
Although plaintiff does not identify the two white, female
employees by name in her Local Rule 56(a)(2) statement, she
identifies them at her deposition. (Doc. #29-4, Ex. A, Brown
Dep. at 137.)
11
covered up his wrongdoing and thereby avoided any disciplinary
action against him. (Id. at ¶ B.4.)
Plaintiff offers no admissible evidence to support these
claims.
A review of her deposition transcript reveals that
plaintiff obtained her knowledge from hearsay sources.
At her
deposition, plaintiff conceded that she had no personal
knowledge regarding any details as to these purported
comparators.
(Doc. #29-4, Ex. A, Brown Dep. at 49-50, 137-140,
154-156.) This does not suffice.
It is “well established” that
“‘the district court in awarding summary judgment, may rely only
on admissible evidence.’” Spiegel v. Schulmann, 604 F.3d at 81
(quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.
2004)).
Even if the evidence were not based on hearsay, it is
skimpy.
Plaintiff is vague about allegations of abuse by these
employees.
More to the point, there is no evidence offered to
show that any abuse allegations were ever proven. (Doc. #29-4,
Ex. A, Brown Dep. at 49-50, 137-140, 154-156.) Plaintiff
provides insufficient information to enable the court to
determine whether Kim Turnage and the other white employees are
comparators.4
See Graham v. Long Island R.R., 230 F.3d at 39-40
4
See, e.g., Brown v. Waterbury Bd. of Educ., 247 F. Supp. 3d
196, 209-210 (D. Conn. 2017) (holding that “[t]o be ‘similarly
12
(holding that “to satisfy . . . [the] ‘all material respects’
standard for being similarly situated, a plaintiff must show
that her co-employees were subject to the same performance
evaluation and discipline standards . . . [and] that similarly
situated employees who went undisciplined engaged in comparable
conduct.”)(citations omitted); Ucar v. Connecticut Dep't of
Transp., No. 3:14CV0765 (JCH), 2017 WL 4022798, at *1 (D. Conn.
Sept. 11, 2017) (same, citing Graham v. Long island R.R.).
Plaintiff further asserts that she “was the only black
female who worked on the second shift in the unit and throughout
her time there she ‘was always shown . . . the cold shoulder.’”
(Pl.’s SOF, ¶ B.3.)
She contends that a “group of Caucasian
staff members fabricated the false abuse charge against the
plaintiff for the purpose of getting her removed from the unit.”
(Pl.’s SOF, ¶ B.5.)5
She argues that her “evidence shows that
situated,’ employees must be substantially similar as to
specific work duties, education, seniority, and performance
history ...” and that “[i]n the Second Circuit, whether or not
co-employees report to the same supervisor is an important
factor in determining whether two employees are subject to the
same workplace standards for purposes of finding them similarly
situated.”) (internal quotation marks and citations omitted).
5
To the extent that plaintiff suggests that the abuse charge was
false, the arbitrator found that the allegations of patient
abuse were credible and supported by the facts. (DMHAS’ SOF ¶
13; Pl’s SOF, ¶ A.13.) In federal court, although the fact
finder is not bound by an arbitrator’s ultimate conclusion that
discipline was appropriate and not the result of discrimination,
13
Caucasian employees in her position who commit the same
infraction charged against her never get into the [discipline]
pipeline in the first place.”
(Doc. #30 at 2.)
Again, without providing any particulars, plaintiff states
in conclusory fashion that “a lot of things occur at the
facility that are brushed under the rug.”
(Pl’s SOF at ¶ 9.)
She does not make any specific allegations as to what gets
“brushed under the rug,” and provides no admissible support for
her statements.
Plaintiff has not shown how such “things” give
rise to an inference of discriminatory intent on the basis of
her race. Plaintiff fails to provide any facts to support her
allegations.
Courts in this Circuit have recognized:
A party may not create a genuine issue of material
fact by presenting contradictory or unsupported statements.
See Securities & Exchange Comm'n v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978). Nor may she rest on
the “mere allegations or denials” contained in her
pleadings. Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995). See also Ying Jing
“[t]he factual findings supporting [an arbitrator’s] ultimate
conclusion — that [plaintiff] had indeed committed the charged
conduct . . . are of a different nature. These findings
precluded [plaintiff] from arguing otherwise at trial.” Matusick
v. Erie Cnty. Water Auth., 757 F.3d 31, 49 (2d Cir. 2014). See,
e.g., Kadri v. Groton Bd. of Educ., No. 3:13CV1165 (JCH), 2014
WL 1612492, at *2 (D. Conn. Apr. 22, 2014) (holding that
“[plaintiff] is precluded from disputing any of the factual
findings in the [arbitrator’s] decision,” (citing Matusick v.
Erie Cnty. Water Auth.).
14
Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993)
(holding that party may not rely on conclusory statements
or an argument that the affidavits in support of the motion
for summary judgment are not credible). Litigants in the
District of Connecticut must comply with Local Rule 56
which requires a party opposing summary judgment to clearly
list each disputed material issue of fact and cite to
admissible evidence in the record to support each fact, or
risk entry of summary judgment against them. See D. Conn.
Loc. R. Civ. P. 56.
Connelly v. Ikon Office Sols., Inc., No. 3:03CV551(JCH), 2005 WL
589326, at *4 (D. Conn. Mar. 7, 2005).
Further:
Conclusory and speculative allegations will not suffice to
demonstrate discriminatory intent. Rather, a plaintiff
“must point to facts that suggest” that the adverse
employment action was motivated, at least in part, by
discriminatory animus. Kalsi v. N.Y.C. Transit Auth., 62
F.Supp.2d 745, 753 (E.D.N.Y. 1998), aff'd, 189 F.3d 461 (2d
Cir. 1999); see also Goenaga v. March of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (reaffirming
that, in order to prove a case of discrimination, a
plaintiff “may not rely simply on conclusory
statements”); Anderson v. Port Auth., No. 04–CV–4331, 2009
WL 102211, at *4 (S.D.N.Y. Jan. 12, 2009) (“[M]ere
conclusory allegations of discrimination will not defeat a
summary judgment motion; a plaintiff in a discrimination
case must proffer 'concrete particulars' to substantiate
his claim.”). Though “the burden of meeting the prima facie
case is 'de minimis,”' a “[p]laintiff must adduce some
admissible evidence that would support his claims.” Henny
v. N.Y. State, 842 F.Supp.2d 530, 553 (S.D.N.Y. 2012)
(alterations and internal quotation marks omitted).
Nguyen v. Dep't of Corr. & Cmty. Services, 169 F. Supp. 3d 375,
388 (S.D.N.Y. 2016).
Plaintiff’s conclusory allegations of discrimination are
insufficient to establish a prima facie case. They are
15
inadmissible hearsay, and plaintiff offers no admissible
evidentiary support for her statements. Plaintiff’s
unsubstantiated statements, without more, are insufficient to
show discriminatory intent.
At the prima facie stage, “[t]he only relevant inquiry is
whether Plaintiff has come forward with enough evidence from
which a rational fact finder could infer unlawful discriminatory
animus on the part of [Defendants] . . . .
When a plaintiff
fails to present evidence to establish any such causal link
between [the adverse employment action] and [her protected
class,] summary judgment is appropriate.”
Johnson v. N.Y. City
Dep’t of Educ., 39 F. Supp. 3d 314, 322 (E.D.N.Y. 2014)
(citation and internal quotation marks omitted); see, e.g.,
Whaley v. City Univ. of N.Y., 555 F. Supp. 2d 381, 402 (S.D.N.Y.
2008) (granting summary judgment on Title VII discrimination
claim where “no evidence support[ed] any finding of
discriminatory animus.”).
Although the burden of establishing a prima facie case is
slight, plaintiff has not put forth evidence that satisfies this
standard.
She fails to provide concrete evidence of
circumstances giving rise to an inference of discrimination.
See D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)
(holding that party opposing summary judgment “must offer some
16
hard evidence showing that its version of the events is not
wholly fanciful.”).
On this record, plaintiff’s disparate
treatment claim fails at the prima facie stage.
2. Employer’s Non-Discriminatory Reason
Even if plaintiff had established a prima facie case of
disparate treatment, DMHAS has articulated a legitimate
nondiscriminatory reason for suspending her.
As plaintiff
concedes, DMHAS “typically . . . suspend[s] any MHA-1 for a
substantiated instance of patient abuse.” (DMHAS’ SOF ¶ 14; Pl’s
SOF ¶ A.14.)
At the second stage of the McDonnell Douglas analysis, an
employer’s burden is to “clearly set forth, through the
introduction of admissible evidence, reasons for its actions
which, if believed by the trier of fact, would support a finding
that unlawful discrimination was not the cause of the employment
action.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507
(1993) (internal quotation marks omitted).
The employer’s
“burden of production is not a demanding one; it need only offer
an explanation for the employment decision.”
Campbell v. Cty.
of Onondaga, No. 504CV1007 (NAM)(GHL), 2009 WL 3163498, at *17
(N.D.N.Y. Sept. 29, 2009).
Here, DMHAS sets forth evidence to
show that it suspended plaintiff for five days due to a
substantiated claim of patient abuse.
17
DMHAS has met its burden.
3. Pretext
Even if the court were to reach the last prong of the
McDonnell Douglas analysis, summary judgment still would be
appropriate because plaintiff is unable to carry her ultimate
burden of proving that the DMHAS’ proffered rationale is “mere
pretext for actual discrimination.”
Weinstock, 224 F.3d at 42.
To satisfy this burden, which is “higher than that . . .
applied for analyzing the prima facie case,” Geoghan v. Long Is.
R.R., No. 06CV1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9,
2009):
the plaintiff is not required to show that the employer's
proffered reasons were false or played no role in the
employment decision, but only that they were not the only
reasons and that the prohibited factor was at least one of
the motivating factors. Regardless of whether the plaintiff
can prove pretext, she . . . bears the ultimate burden of
persuasion, and must adduce enough evidence of
discrimination so that a rational fact finder can conclude
that the adverse job action was more probably than not
caused by discrimination.
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107,
123 (2d Cir. 2004) (internal quotation marks and citations
omitted). See, e.g., Garcia v. Hartford Police Dep't, 706 F.3d
120, 127 (2d Cir. 2013) and Brown v. Waterbury Bd. of Educ., 247
F. Supp. 3d 196, 212 (D. Conn. 2017) (both holding that “[t]o
defeat summary judgment ... the plaintiff is not required to
show that the employer's proffered reasons were false or played
18
no role in the employment decision, but only that they were not
the only reasons and that the prohibited factor was at least one
of the motivating factors.”) (internal quotation marks and
citations omitted)).
“To meet [her] . . . ultimate burden, the plaintiff may,
depending on how strong it is, rely upon the same evidence that
comprised her prima facie case, without more.” Back v. Hastings
On Hudson Union Free Sch. Dist., 365 F.3d at 124 (internal
quotation marks and citation omitted).
A showing that similarly situated employees belonging to a
different racial group received more favorable treatment
can also serve as evidence that the employer's proffered
legitimate, non-discriminatory reason for the adverse job
action was a pretext for racial discrimination.
Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000).
Summary judgment is inappropriate “unless the defendants'
proffered nondiscriminatory reason is dispositive and forecloses
any issue of material fact.”
Brown v. Waterbury Bd. of Educ.,
247 F. Supp. 3d at 212 (quoting Back v. Hastings On Hudson Union
Free Sch. Dist., 365 F.3d at 124).
Nonetheless, “it is not
enough . . . to disbelieve the employer; the fact finder must
[also] believe the plaintiff’s explanation of intentional
discrimination.”
St. Mary’s Honor Ctr., 509 U.S. at 519.
Here, to show pretext, plaintiff offers the same evidence
and makes the same arguments as she did to support her prima
19
facie case.
Although plaintiff is entitled to rely on the same
evidence used to support her prima facie case, Back v. Hastings
On Hudson Union Free Sch. Dist., 365 F.3d at 124, that evidence
does not show that DMHAS’ legitimate nondiscriminatory reason
for disciplining plaintiff was a pretext for discrimination.
Plaintiff does little more than conclude that her unsupported
statements establish pretext, which is insufficient to defeat
summary judgment.
See, e.g., Gengo v. City Univ. of N.Y., No.
07-CV-681 (KAM)(JMA), 2010 WL 6372012, at *14 (E.D.N.Y. Dec. 2,
2010) (holding that “plaintiff fails to demonstrate that the
non-discriminatory reason proffered by defendant is pretextual
. . .
Plaintiff merely states in a conclusory fashion that
pretext is established by the evidence he compiled in support of
his prima facie case.”).
Plaintiff being unable to carry her burden of proof,
summary judgment in favor of defendant is appropriate.
IV.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment (doc. #29) is GRANTED.
SO ORDERED at Hartford, Connecticut this 30th day of March,
2018.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
20
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