Palak v. St. Francis Hospital

Filing 71

ORDER granting 51 Motion for Summary Judgment. For the reasons in the attached opinion 71 , the defendant's motion for summary judgment is granted in its entirety, and the plaintiff's cross-motion is denied. Ordered by Judge John Gleeson on 6/12/2015. (Garcia, Lynda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

EWA PALAK,
Plaintiff,
- versus -

MEMORANDUM
AND ORDER
14-CV-4383

ST. FRANCIS HOSPITAL,
Defendant.

A P P E A R A N C E S:
EWA PALAK
2230 Harman Street
Ridgewood, NY 11385
Pro Se Plaintiff
NIXON PEABODY LLP
50 Jericho Quadrangle
Suite 300
Jericho, NY 11753
By:
Christopher G. Gegwich
Tania Mistretta
Attorneys for Defendants

JOHN GLEESON, United States District Judge:
Pro se plaintiff Ewa Palak brought this lawsuit against her former employer, St.
Francis Hospital (“the Hospital”), alleging that it unlawfully discriminated against her on
account of her age and national origin and subjected her to harassment and retaliation in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in
Employment Act (“ADEA”). Palak, who is 54 and Polish, worked for the Hospital as a part-time
Comfort and Care Provider (“CCP”) for five years until the time of her resignation in the fall of
2014.

On September 27, 2013, Palak filed a complaint with the New York State
Division of Human Rights (“the NYSDHR complaint”) alleging that the Hospital subjected her
to discrimination and a hostile work environment based on her national origin and age. After an
investigation into the allegations, the NYSDHR issued an order on March 21, 2014 finding no
probable cause to believe that the Hospital had engaged in discriminatory practices. On April 7,
2014, Palak submitted a letter to the EEOC seeking review of the NYSDHR’s determination.
The EEOC adopted the NYSDHR’s findings and issued a Notice of Right to Sue on April 22,
2014. Palak filed the original complaint in this case on July 8, 2014 and her second amended
complaint on November 12, 2014. The Hospital filed a motion for summary judgment on March
31, 2015. Palak filed a cross-motion for summary judgment on May 8, 2015. I heard oral
argument on May 15, 2015. For the reasons explained below, the Hospital’s motion is granted
and Palak’s motion is denied.
BACKGROUND
The following facts are taken from Local Rule 56.1 statements and supporting
materials submitted by the parties. Each side has moved for summary judgment. Unless
otherwise noted, these facts are either not in dispute or are construed in the light most favorable
to the party opposing the motion under consideration.
The Hospital, a member institution of the Catholic Health Services of Long Island
health care system, is a not-for-profit corporation located in Roslyn, New York. It is a
designated cardiac center, with specialties in heart surgery, cardiac catheterization and
angioplasty, and the diagnosis and treatment of abnormal heart rhythms. In each of the different
departments at the Hospital, the Registered Nurses (“RN”) work alongside nurse aides, including
Patient Care Associates (“PCA”) and CCPs.

2

Palak began working as a part-time CCP in the Hospital’s 2 East DeMatteis
Department (“2 East Unit”) on September 8, 2009. At the time, she was 48 years old. As a
CCP, Palak assisted the Hospital’s RNs and PCAs, and her responsibilities included bathing
patients, assisting patients with toileting and ambulating, changing patients’ linen, emptying
linen bins, providing patients with food and fresh water, answering call bells, making safety
rounds, taking vital signs, and generally keeping patients’ rooms clean and tidy.
Patrice Keenan, R.N., is the Nurse Manager responsible for supervising all of the
nursing employees in the 2 East Unit. Palak’s immediate supervisors during her employment
were Assistant Nurse Managers Christine Rice, R.N., and Susan Gunaydin, R.N., who both, in
turn, reported to Keenan.
A.

Palak’s Disagreement with Her Performance Evaluations
Much of Palak’s claim seems to center on her disagreement with the performance

evaluations she received during the course of her employment, which she perceived to be
negative.
The Hospital conducts annual performance evaluations for all of its employees
that are based on the Assistant Nurse Managers’ personal observations and interactions with
employees, as well as input from other managers, RNs and supervisory employees. Once a draft
of a written performance evaluation is completed, it is given to Keenan for her final review and
approval. Rice and Gunaydin were responsible for preparing and delivering Palak’s annual
performance evaluation.
In October 2010, Rice prepared Palak’s written performance evaluation for the
2009 to 2010 time period (“the 2010 evaluation”), with Gunaydin and Keenan’s help. Palak’s
overall performance for the time period was rated as “Meets” expectations: she received a rating

3

of “Meets” expectations in 46 categories, a rating of “Exceeds” expectations in nine, and a rating
of “Needs Improvement” in two. Rice Aff., Ex. A. The evaluation also included several
constructive “Goals/Objectives,” which included that she should work to increase patient
satisfaction to help the 2 East Unit achieve a Press Ganey score higher than 90%. 1
Rice met with Palak on October 4, 2010 to discuss her performance and present
her with a copy of her evaluation. Palak was unhappy with her performance evaluation, and Rice
claims that Palak became extremely defensive. Rice Aff. ¶ 19. Palak refused to sign the 2010
evaluation and later scheduled a meeting with Keenan to discuss her disagreement with it.
At the meeting with Keenan, Palak expressed disagreement with the two areas in
which she received a “Needs Improvement” rating and tried to negotiate a higher performance
rating. She also expressed displeasure that improving the 2 East Unit’s Press Ganey score was
included as a goal in her evaluation for the coming year. Keenan Aff. ¶ 26. Keenan declined to
change Palak’s evaluation because it accurately reflected her performance.
A year later, on October 25, 2011, Palak met with Katie O’Brien, formerly a
Human Resources Business Partner at the Hospital, to express concerns about Rice, stating that
she felt that Rice could be “angry, hostile, and rude towards her.” She further stated that she did
not feel Keenan had dealt with her concerns about Rice fairly after Palak brought them to her
attention. Palak also told O’Brien that Keenan had told her she was not a “team player.” Palak
did not complain of discrimination on the bases of age or national origin, harassment or
retaliation at this meeting.

1

Press Ganey is a consulting firm that conducts surveys of patients who received treatment at
hospitals and other healthcare institutions. The Hospital works with Press Ganey to perform surveys to determine
patient satisfaction with the quality of the patient care provided by the Hospital. Each employee working in a
particular unit is responsible for the unit’s overall Press Ganey score.

4

On October 26, 2011, O’Brien contacted Keenan and asked Keenan to speak with
the Nurse Managers and to make an effort to be more sensitive to Palak’s perception of how her
performance was addressed, which Keenan did. O’Brien Aff., Ex. H; Keenan Aff. ¶ 34.
O’Brien informed Palak about her conversation with Keenan the following day, and asked Palak
to contact her if she had additional concerns in the future.
The next month, in November 2011, Rice prepared Palak’s written performance
evaluation for the 2010 to 2011 time period (“the 2011 evaluation”) in collaboration with
Gunaydin and Keenan. 2 Rice Aff., Ex. B; Gunaydin Aff. ¶ 17 (“Gun. Aff.”); Keenan Aff. ¶ 38.
Palak received a final performance rating of 2.2, which indicated a ranking between “Sometimes
Meets Expectations” and “Meets Expectations.” The 2011 evaluation noted that Palak “[wa]s
encouraged to work with the PCAs and RNs collaboratively in order to facilitate patient care”
and that although she accepted her assigned tasks, she needed to “realize that she is a team
member and that all staff members work together to provide best patient outcomes.” She was
also encouraged to better accept constructive feedback.
Gunaydin met with Palak on November 27, 2011 to review her performance and
provide her with a copy of the 2011 evaluation. Palak became defensive after reviewing the
evaluation and refused to sign it. After her meeting with Gunaydin, Palak requested a meeting
with Keenan to discuss the 2011 evaluation. Palak stated to Keenan that the evaluation was
“negative” and that she did not deserve this rating. Keenan met with Palak on multiple occasions
in an effort to explain to Palak that her evaluation was not negative. Keenan Aff. ¶ 40. She
advised Palak that she would not change the ratings in her written performance evaluation based
on Palak’s self-assessment of her own performance. Id. ¶ 41.

2

Between 2010 and 2011, the Hospital implemented a new performance evaluation ranking system
that measured employees’ performances on a 5-point numerical scale. Rice Aff., Ex. B.

5

In September 2012, Gunaydin prepared Palak’s written performance evaluation
for the 2011 to 2012 time period (“the 2012 evaluation”), with input from Rice and Keenan.
Gun. Aff. ¶ 22 & Ex. A. Palak received a final performance rating of 2.3, which again set her
between “Sometimes Meets Expectations” and “Meets Expectations.” The 2012 evaluation
noted that she “continue[d] to work as an individual and not as a team.” Gun. Aff., Ex A.
Gunaydin met with Palak to present her with her 2012 evaluation, and contends
that Palak became argumentative and refused to sign her evaluation. Gun. Aff. ¶ 28. Palak
scheduled a meeting with Keenan to discuss the 2012 evaluation. Keenan Aff. ¶ 52. Because
Keenan perceived Palak to be increasingly agitated about her performance evaluations, Keenan
arranged for another manager, Leah Apil, R.N., to be present. Id. During the meeting on
November 8, 2012, Keenan and Apil spoke with Palak about the areas of her performance which
needed improvement. Id. ¶ 54. Palak wanted to discuss her prior written evaluations instead.
Id.
Sometime after the meeting with Keenan and Apil, Palak contacted Bernadette
Cantazaro in the Hospital’s Corporate Compliance Department, claiming that the Hospital was
subjecting her to “retaliatory behavior” and a “hostile work environment.” Catanzaro referred
the matter to O’Brien. On December 18, 2012, Palak met with O’Brien regarding the concerns
she had brought to Catanzaro’s attention. At this meeting, Palak questioned all of her prior
performance evaluation ratings and complained that when she tried to speak with Keenan, Rice
or Gunaydin regarding her performance, they became angry and hostile. Palak claimed that the
Nurse Managers made looks and acted like they were laughing at her expense. O’Brien Aff., Ex.
N.

6

O’Brien subsequently discussed the matter with Keenan and concluded that there
were no facts or circumstances suggesting that the Hospital had subjected Palak to retaliation or
a hostile work environment. Id. Palak’s concerns related to her dissatisfaction with her written
performance evaluation ratings seemed to stem from a miscommunication with her supervisors.
Id. O’Brien notified Palak that Keenan was available to meet with her and further discuss her
written performance evaluation, but that the Hospital would not change her overall performance
ratings.
Palak did not complain about age or national origin discrimination during her
November 2012 conversation with Catanzaro or her December 2012 meeting with O’Brien, and
she did not attribute the alleged harassment or hostile work environment to her age or national
origin.
On March 25, 2013, Keenan met with Palak to discuss Palak’s disagreement with
her 2012 evaluation. She explained to Palak that the evaluations accurately reflected her
performance as a CCP. Keen. Aff. ¶ 61.
On May 29, 2013, Palak contacted O’Brien to schedule a meeting to review her
personnel file. O’Brien had to cancel the meeting which was scheduled for June 6, 2013, and
Palak emailed her on July 1, 2013 to reschedule it. Palak attached several documents relating to
her interactions with Keenan and other co-workers to the email. O’Brien promptly began an
investigation into the issues raised in the documents.
In one of the documents in the email, entitled “Some Employees Behavior May
Need Attention,” Palak made a number of allegations regarding her co-workers claiming that
they engaged in various forms and types of inappropriate behavior and misconduct, none of
which were directed towards or involved Palak, including an alleged incident involving Keenan

7

and Shanielle Smith, a PCA in the 2 East Unit. Palak alleged that, on March 4, 2013, Smith said
to Keenan, in sum or substance, “fire Jack and hire a young man” about Jack Laskin, a CCP at
the time. She alleged that Keenan laughed at the comment. O’Brien spoke with Keenan and
Smith, and both denied that Smith ever made that comment about Laskin. O’Brien Aff. ¶ 44.
At the conclusion of her investigation, O’Brien determined that Palak’s
allegations of misconduct and inappropriate conduct involving her co-workers were unfounded.
O’Brien Aff. ¶ 43.
On January 31, 2014, Palak met with Gunaydin in her office to go over her
performance evaluation for the 2012 to 2013 time period (“the 2013 evaluation”). Two other
Nurse Managers were also present. Palak received rating of 2.8, which was higher than her
previous two evaluations, and again set her between “Sometimes Meets Expectations” and
“Meets Expectations.” Upon receipt of her written performance evaluation and before anything
was said, Palak began crying.
Palak claims that she demanded to leave the meeting and that Gunaydin blocked
her exit. Second Amended Compl. (“SAC”) at 7. Her complaint states that she was confined
against her will for approximately one hour, and that she feared for her safety. Id. In her
deposition testimony, however, Palak explained that she thinks she attempted to leave the
meeting on two occasions by standing up and asking to leave. Pl. Dep. at 124-25, 134-35, 13740, 142, 147. Gunaydin responded by asking her to sign her performance evaluation, explaining
that the evaluation was not negative, and stating that the meeting was not over once. Id. The
door to the office was closed during the meeting, but unlocked, and Palak was free to leave at
any time. Feil Aff. ¶¶ 7, 9; Gun. Aff. ¶¶ 35, 38, 40; Helmke Aff. ¶¶ 7, 10, 14.

8

B.

Request for Time Off
In late October 2011, Palak asked to take off a day of work after she had been

scheduled to work that particular day; Keenan denied the request. Palak later explained to
Keenan that she needed the day off to attend her daughter’s graduation from military boot camp,
at which point Keenan arranged for another employee to cover Palak’s shift and allowed Palak to
take the day off without pay. Keen. Aff. ¶ 43. Palak’s daughter was not on active duty or being
deployed to a foreign country at the time.
C.

Palak’s Applications for Other Positions at the Hospital
In October 2010, Palak applied for a PCA position in the Electrophysiology

Department (“ED”) at the Hospital. Keenan endorsed Palak’s application (i.e., she
recommended and approved Palak for the position). Palak interviewed with Regine Bernstein
from the ED for the position on November 23, 2010. She did not perform well in the interview
and therefore was not selected for the position. O’Brien Aff., Ex. D.
In January 2011, Palak applied for several open PCA positions in various
departments in the Hospital, including the 3 East Medical Intensive Care Unit (“3 East MICU”).
Again, Keenan endorsed Palak’s applications. On February 2, 2011, Palak interviewed with
Elaine Stevens, R.N., from the 3 East MICU. In her interview notes, Stevens noted that Palak
appeared overwhelmed by the fact that there was only one PCA and one CCP on shift at night in
the 3 East MICU. O’Brien Aff., Ex. F. Stevens also noted that the PCA in the 3 East MICU
would have to frequently draw blood, and she preferred to hire someone with more experience.
Id. Thus, Stevens did not select Palak for the PCA position in the 3 East MICU. Id. Stevens
was the same person who initially interviewed and hired Palak in 2009 as a CCP in the 2 East
Unit.

9

On October 29, 2012, Palak submitted applications for two PCA positions at the
Hospital. Keenan again endorsed Palak’s applications. The Hospital did not select Palak for one
of the positions (MICU-2 PCA), and instead chose a candidate with more experience. O’Brien
Aff., ¶ 28. Keenan, Gunaydin and Rice were not involved in that hiring. Gun. Aff. ¶ 49; Keen.
Aff. ¶ 45; Rice Aff. ¶ 46. Palak was not selected for the other available PCA position in 2 East
Unit. The Hospital had hired a former employee who was returning from military absence on the
day Palak submitted her application. O’Brien Aff. ¶ 27 & Ex. I. This was the last time Palak
applied for a PCA position at the hospital.
D.

Denial of Salary Increase
Palak alleges that in 2013, Keenan did not recommend a salary increase for the

2011 to 2012 review period. Keenan was not involved in deciding the salary increases in 2013,
however, as the decisions were handled by Tara Anne Rogan, R.N., the Nurse Manager for the
Froehlich Pavilion 2 Unit. Keen. Aff. ¶ 93; Rogan Aff. ¶ 5. Salary increases are not automatic,
and Rogan based her decision solely on Palak’s 2012 evaluation since she does not know Palak.
Rogan Aff. ¶ 4-8.
E.

Alleged Harassing and Discriminatory Comments
Palak alleges two incidents during which discriminatory comments were made by

Hospital personnel. First, she claims that sometime in 2011, Smith allegedly mimicked her
Polish accent in Rice’s presence and Rice giggled. Pl. Dep. at 81-85, 86, 90, 100-101. Second,
Palak claims that Keenan made certain comments about Laskin, which she claims were the
product of age-related animus. Id. at 71-76. Specifically, Palak alleges that sometime in April
2013, Keenan stated, “Who is walking whom?” when observing Laskin walking a patient. The
second statement regarding Laskin is the one she raised in the document “Some Employees

10

Behavior May Need Attention,” when Smith allegedly stated “fire Jack and hire a young man” to
Keenan. The Hospital denies any of the comments were made.
Palak also alleges that a nurse had referred to her as a “jerk” when speaking to
Keenan sometime in 2011.
F.

Other Allegedly Adverse Employment Actions
In addition to receiving what she characterizes as “negative” performance

evaluations, Palak also alleges that she was given the undesirable assignment of emptying bed
linens, and that the Hospital did not accommodate her schedule for school. CCPs and PCAs
routinely empty beds linens. Pl. Dep. at 180-81. Some of Palak’s requests for days off to attend
school in the fall of 2011 were denied due to the Hospital’s staffing needs. Rice Aff. ¶ 28. Her
requests for days off to attend school in 2012 and 2013 were granted.
G.

Palak’s Resignation
On September 24, 2014, Palak requested a personal leave of absence from

October 12, 2014 through November 19, 2014, which the Hospital approved. On November 19,
2014, Palak sent the Hospital’s Director of Human Resources an email resigning from her
employment with the Hospital. She cited the Hospital’s “long time discriminatory, retaliatory
and humiliative actions” as her reason for resigning. Gegwich Decl., Ex. P. She claimed to be
suffering from severe depression because of the Hospital’s actions. Id. Palak’s resignation was
accepted by letter the following day. Id. at Ex. Q. The Hospital’s letter encouraged her to seek
confidential counseling to help her cope with her distress or depression. Id.

11

DISCUSSION
A.

Legal Standards
1.

Summary Judgment
Under Federal Rule of Civil Procedure 56(a), a court will grant summary

judgment where “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.” A fact is “material” if its resolution
“might affect the outcome of the suit under the governing law[.]” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. In determining whether
there are genuine disputes of material fact, the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought.”
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (quoting Stern v. Trustees of Columbia Univ.
in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)).
The court must review the record as a whole and, in doing so, “disregard all
evidence favorable to the moving party that the jury is not required to believe.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted). As such, “the
court should give credence to the evidence favoring the nonmovant as well as the evidence
supporting the moving party that is uncontradicted and unimpeached, at least to the extent that
that evidence comes from disinterested witnesses.” Id. (citation and internal quotation omitted).
A district court must exercise caution in granting summary judgment in
employment discrimination cases, which typically turn on the employer’s subjective intent. See
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); Schwapp v. Town of Avon, 118 F.3d
106, 110 (2d Cir. 1997); see also Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (“where

12

subjective issues regarding a litigant’s state of mind, motive, sincerity or conscience are squarely
implicated, summary judgment would appear to be inappropriate and a trial indispensable[.]”).
This is because “direct evidence of discriminatory intent is rare and such intent often must be
inferred from circumstantial evidence found in affidavits and depositions.” Schiano v. Quality
Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006). However, even in the discrimination context, a
plaintiff cannot elude summary judgment with mere conclusory allegations as to the employer’s
motive. See Holcomb, 521 F.3d at 137; ITC Ltd. V. Punchgini, Inc., 482 F.3d 135, 150 (2d Cir.
2007) (“[I]ntent is always a subjective matter of inference and thus rarely amenable to summary
judgment. At the same time, however, the summary judgment rule would be rendered sterile if
the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise
valid motion.”(quotations and citations omitted)).
2.

Discrimination Claims Under Title VII and The ADEA
In evaluating summary judgment motions with respect to discrimination claims

brought pursuant to Title VII and the ADEA, courts apply the burden-shifting analysis set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Paulino v. New York Printing
Pressman’s Union, Local Two, 301 F. App’x 34, 37 (2d Cir. 2008). This framework requires a
plaintiff to show: (1) that she belongs to a protected class; (2) that her job performance was
satisfactory; (3) that she suffered adverse employment action; and (4) that the action occurred
under conditions giving rise to an inference of discrimination. Demoret v. Zegarelli, 451 F.3d
140, 151 (2d Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 802). Once the plaintiff has
made a prima facie case, the burden shifts to the defendant employer to provide a legitimate,
non-discriminatory reason for the action. Id. (citing McDonnell Douglas, 411 U.S. at 802-04).
If the defendant makes such a showing, the burden shifts back to the plaintiff to prove

13

discrimination, for example, by showing that the employer’s proffered reason is pretextual. Id.
(citing McDonnell Douglas, 411 U.S. at 804). With respect to an ADEA claim, the plaintiff
must establish that “age was the ‘but-for’ cause of the challenged adverse employment action”
at this last stage. Gross v. FBL Financial Services, 557 U.S. 167, 180 (2009).
a.

Stray Remarks Insufficient to Establish Prima Facie Case

“In the absence of a clearly demonstrated nexus to an adverse employment action,
stray workplace remarks are insufficient to defeat a summary judgment motion.” Almonord v.
Kingsbrook Jewish Med. Ctr., No. 04-CV-4071 (NGG)(RML), 2007 WL 2324961, at *9
(E.D.N.Y. Aug. 10, 2007) (citing Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998).
“[T]he stray remarks even of a decision-maker, without more, cannot prove a claim of
employment discrimination[.]’” Abdu–Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d
Cir. 2001). When coupled with “other indicia of discrimination,” however, the remarks might no
longer be “stray” and the jury may accord them a more ominous significance. Id. (quotation and
citation omitted). “In considering whether a remark is probative of discrimination or whether it
is a non-probative ‘stray remark,’ a court should consider factors such as: ‘(1) who made the
remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was
made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether
a reasonable juror could view the remark as discriminatory); and (4) the context in which the
remark was made (i.e., whether it was related to the decision-making process).’” Sethi v. Narod,
12 F. Supp. 3d 505, 539 (E.D.N.Y. 2014) (quoting Henry v. Wyeth Pharmaceuticals, 616 F. 3d
134, 149 (2d Cir. 2010)).

14

b.

Inference Against Discrimination

Courts recognize that an “inference against discrimination exists where the person
who participated in the allegedly adverse decision is also a member of the same protected
class.” Drummond v. IPC Int’l., Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y. 2005). In other
words, “[i]f a decision maker is in the same protected class as plaintiff, claims of discrimination
become less plausible.” Chan v. Donahue, No. 13-CV-2599 (JBW), 2014 WL 6844943, at *19
(E.D.N.Y. Dec. 4, 2014); see also Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214, 225
(E.D.N.Y. 1993) (dismissing age discrimination claims where the employees responsible for
plaintiff’s termination were the same age as or older than plaintiff). However, this is not
dispositive, given that persons of a protected class are capable of discriminating against members
of the same class; it merely provides an additional inference against discrimination that a
plaintiff must overcome. See Drummond, 400 F. Supp. at 532 (the inference against
discrimination where the person who allegedly discriminated is a member of the same protected
class “does not end the inquiry”).
3.

Retaliation Claim Standard
The McDonnell Douglas burden-shifting framework “applies to claims . . . of

retaliation under Title VII and the ADEA.” Bucalo v. Shelter Island Union Free School
Dist., 691 F.3d 119, 129 (2d Cir. 2012). The Second Circuit has described the first stage of the
retaliation burden-shifting analysis as follows:
First, the plaintiff must establish a prima facie case of retaliation by
showing: (1) participation in a protected activity; (2) that the defendant
knew of the protected activity; (3) an adverse employment action; and (4)
a causal connection between the protected activity and the adverse
employment action. The plaintiff’s burden in this regard is de minimis,
and the court’s role in evaluating a summary judgment request is to

15

determine only whether proffered admissible evidence would be sufficient
to permit a rational finder of fact to infer a retaliatory motive.
Hicks v. Baines, 593 F.3d 159, 164-65 (2d Cir. 2010) (internal quotation marks and citations
omitted).
4.

Hostile Work Environment Standard
To establish a hostile work environment claim, a plaintiff must show “(1) that the

harassment was sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment, and (2) that a specific basis exists for
imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002) (internal quotations and citation omitted). The conduct at issue must be “so severe or
pervasive as to create an objectively hostile or abusive work environment.” Richardson v. New
York State Dep’t of Correctional Serv., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotations and
citation omitted). “A work environment will be considered hostile if a reasonable person would
have found it to be so and if the plaintiff subjectively so perceived it.” Brennan v. Metro. Opera
Ass’n, 192 F.3d 310, 318 (2d Cir. 1999). Whether a reasonable person would find a given work
environment hostile depends on the “totality of the circumstances,” including: (1) frequency of
the conduct, (2) its severity, (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance, and (4) whether the conduct unreasonably interferes with the
employee’s work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
5.

False Imprisonment Standard
To prevail on a claim for false imprisonment under New York law, a plaintiff

must establish (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious
of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement
was not otherwise privileged. King v. Crossland Sav. Bank, 111 F.3d 251, 255 (2d Cir. 1997).
16

B.

Application
1.

The Timeliness Requirement
The Hospital argues that most of Palak’s Title VII claims are time-barred. In

states that have a fair employment agency, such as New York, plaintiffs may only assert claims
under Title VII alleging discrete discriminatory acts that have occurred within 300 days of filing
a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). 42
U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002);
Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010) (“[I]n states such as
New York that have an agency with the authority to address charges of the statute of limitations
for filing a charge of discrimination with the Equal Employment Opportunity Commission is 300
days discriminatory employment practices.” (alteration, citation and internal quotation marks
omitted)). In Morgan, the Supreme Court held that “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.” 536
U.S. at 113. The claims will not be time-barred, however, “as long as all acts . . . are part of the
same unlawful employment practice and at least one act falls within the [300 day] time period.”
Id. at 122.
Palak filed her discrimination complaint with the NYSDHR on September 27,
2013. Thus, all of her Title VII claims concerning conduct that took place prior to December 2,
2012 are time-barred unless she can establish a basis for extending the limitations period under
the continuing violation doctrine, which she has not. 3 See Robles v. Cox & Co., Inc., 841 F.
Supp. 2d 615, 627 (E.D.N.Y. 2012) (“the continuing violation doctrine extends the limitations
3

Specifically, Palak’s last application for a PCA position was on October 29, 2012, thus her failure
to promote and transfer claims are untimely. Also, her allegedly “poor” performance evaluations for 2010, 2011 and
2012, the undesirable or increased work assignments, the Hospital’s failure to approve days off for her to attend
school or her daughter’s military ceremony, and the assignment of certain duties and responsibilities, all occurred
prior to December 2, 2012, and are therefore time-barred.

17

period for all claims of discriminatory acts committed under an ongoing policy of discrimination
even if those acts, standing alone, would have been barred by the statute of limitations” (internal
quotations and citations omitted)). Specifically, the alleged discriminatory acts, even if true, do
not establish an ongoing policy of discrimination by the Hospital. “It is well-settled that certain
adverse employment practices such as termination, failure to promote or adequately compensate,
undesirable work transfers, and denial of preferred job assignments are discrete acts and cannot
be considered as part of an ongoing pattern or policy of discrimination.” Id. at 628. In such
cases, “each incident of discrimination and each retaliatory adverse employment decision
constitutes a separate actionable unlawful employment practice.” Id. (quoting Morgan, 536 U.S.
at 114).
Because the alleged discriminatory acts that occurred prior to December 2, 2012
are time-barred, the only acts that took place within the relevant time period are the refusal to
give Palak a salary increase in 2013 and the 2013 annual performance evaluation. See Pl. Dep. at
105-106, 214.
2.

Palak Has Not Made Prima Facie Showing of Discrimination
Even if timely, Palak’s claims fail because she has not met her burden of

establishing a prima facie case of discrimination under Title VII or the ADEA. First, she has
provided no evidence that she suffered an adverse employment action. “[A]n adverse
employment action is a materially adverse change in the terms and conditions of
employment.” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 211 (E.D.N.Y. 2014)
(quoting Mathirampuzha v. Potter, 548 F.3d 70, 78 n.7 (2d Cir. 2008)). “Examples of
materially adverse employment actions include termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,

18

significantly diminished material responsibilities, or other indices unique to a particular
situation.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (alteration, citation and
internal quotation marks omitted). Palak was not fired, disciplined or demoted. She did not
experience a decrease in salary or receive a less distinguished title. She was not denied material
benefits, nor were her responsibilities as a CCP diminished. When asked at her deposition
whether she was ever disciplined or suspended, she said that it was just her performance
evaluations that were bad. See Pl. Dep. at 43. However, “unjustified criticism and negative
evaluations . . . do not constitute adverse employment actions unless they [lead] to a change in
the conditions of employment.” Meder v. City of New York, No. 06-CV-504 (JG)(VVP), 2007
WL 2937362, at *8 (E.D.N.Y. Oct. 9, 2007). No adverse consequences flowed from any of
Palak’s self-professed “bad” evaluations, nor did she experience any changes in the conditions of
employment after the evaluations. Indeed, Palak’s assertion that there were four mass lay-offs
during the time she worked at the Hospital, but that she was never laid off because she was a
good employee, supports the Hospital’s contention she was not subject to adverse employment
actions. See Pl. Dep. at 89, 101-109.
The only actions that could conceivably be construed as adverse are that Palak
was not hired for a PCA position (which is time-barred) and that she did not receive a salary
increase in 2013. She has failed, however, to show discriminatory animus in rejecting her
applications for a PCA position. Keenan endorsed her applications and was not a part of the
hiring process for other the departments. In fact, Palak was not extended offers because there
were better qualified candidates for the positions. With regard to the PCA position in the 2 East
Unit that she applied for in October 2013, the Hospital had already filled it when Palak applied.
Thus, her failure to promote claims fail as a matter of law.

19

The fact that Palak did not receive a salary increase in 2013 cannot sustain a claim
of discrimination because there is no dispute that the denial was warranted based on Palak’s
performance ratings. Furthermore, this does not constitute a “change” in her conditions of
employment in the way that a salary decrease would, and thus cannot be characterized as an
adverse employment action. Finally, the denial of a transfer to a comparable CCP position and
the Hospital’s various alleged slights, such as a delay in receiving time off to attend her
daughter’s military promotion (which she ultimately received), are not actions that rise to the
level of an adverse employment action because they did not materially alter the conditions of her
employment. 4 Neither does being assigned to empty bed linens. See Rodriguez v. Coca Cola
Refreshments USA, Inc., No. 12-CV-234, 2013 WL 5230037 (BMC), at *3 (E.D.N.Y. Sept. 16,
2013) (collecting cases) (“[A]ssignments that are part of an employee’s normal responsibilities
are not ‘adverse employment actions’ where . . . the rate of pay and benefits remains the same.”).
a.

National Origin Discrimination

Even if Palak had succeeded in establishing that the denial of a salary increase or
the 2013 evaluation were adverse employment actions, she cannot establish a prima facie claim
of national origin discrimination because she cannot link these actions (or any others for that
matter) “to circumstances giving rise to an inference of discrimination.” See Chan, 2014 WL at
*23. The only allegation that remotely approaches national origin discrimination stems from
Smith’s mimicking of Palak’s accent in Keenan’s presence, and Keenan giggling, in 2011.
These actions (which I assume are true and acknowledge are reprehensible) simply do not create
a plausible inference that Palak was discriminated against based on her national origin. The
challenged conduct was engaged in by a non-decision-making co-worker, and it occurred two
4

To the extent Palak alleges the Hospital denied her time off under the Family Medical Leave Act
(“FMLA”) it was not applicable under Palak’s circumstances because her daughter was not on active duty or about
to be deployed. See Gegwich Aff., Ex. H (H.R. Pol’y & Proc. Manual).

20

years before Palak was denied a salary increase. See Howard v. City of New York, No. 14-CV409, 2015 WL 895430, at *2 (2d Cir. Mar. 4, 2015) (alleged comment made my employee with
no decision-making authority made over ten months before the adverse action did not create
plausible inference of race discrimination). Furthermore, courts have found the mimicking of a
plaintiff’s accent on a random occasion insufficient to support an inference of discrimination
under the McDonnell framework. See Chan, 2014 WL at *23; Bellom v. Neiman Marcus Grp.,
Inc., 975 F. Supp. 527, 532 (S.D.N.Y. 1997) (finding the alleged mimicking of plaintiff’s accent
on one or two occasions insufficient to establish a claim of discrimination on the basis of
national origin). Finally, Palak has not shown a connection between Smith’s mimicking in 2011
and the decision by another Hospital employee not to increase her salary in 2013 or the 2013
evaluation two years later.
b.

Age Discrimination

Palak cannot link any of the actions she argues were adverse to circumstances
giving rise to an inference of age discrimination. Her claim of age discrimination is based on
two comments allegedly made about Laskin, another CCP. These comments cannot plausibly be
linked to any of the decisions not to hire Palak for a PCA position (which are untimely),
decisions that were made prior to the time of the alleged comments. Nor can she show a
connection between the comments and the Hospital’s decision not to increase her salary in 2013;
Rogan made the determination in January 2013, months before Palak alleges the comments were
made. See Rogan Aff., Ex. A. While her 2013 evaluation was prepared after the comments were
made, the fact that Keenan, Gunaydin and Rice were also in their forties undermines the already
weak inference that the comments about Laskin had any relationship to Palak’s evaluation. See
Chan, at *23.

21

Palak has not met her burden of putting forth evidence from which a jury could
infer that she experienced a materially adverse employment action or that the alleged actions
give rise to an inference of discrimination, as required under Title VII. Thus, the Hospital’s
motion for summary judgment on the claims of discrimination under Title VII and ADEA is
granted.
3.

Retaliation
Palak’s meetings with O’Brien to complain about her performance evaluations

focused on exactly that – the evaluations. She did not allege discrimination or harassment on the
bases of national origin or age at those meetings. While her December 2012 complaint alleged
“retaliation” and “hostile work environment,” she did not attribute the alleged retaliation to her
status as a member of a protected class or to any complaints of discrimination. See O’Brien Aff.,
Ex. N; Pl. Dep. at 257-58. Thus, the Hospital could not have retaliated against Palak for
engaging in protected activity; Palak never complained of discrimination or harassment based on
national origin or age.
The first point at which Palak engaged in a protected activity that the Hospital
knew of was in September of 2013, when she filed her NYSDHR complaint. However, as
discussed above, Palak did not suffer any adverse employment actions by the Hospital
afterwards, and the actions she points to as adverse cannot be construed as such. For example,
Palak received her 2013 performance evaluation in January of 2014, after she had filed her
NYSDHR complaint. The 2013 evaluation, however, was better than the ones for the previous
two years (she received a rating of 2.8, as opposed to 2.2 and 2.3 in 2011 and 2012,
respectively). No inference of retaliation can reasonably be drawn from those facts. See, e.g.,
Lessambo v. Pricewaterhouse Coopers, L.P., No. 08-CV-6272 (WHP), 2010 WL 3958787, at

22

*13 (S.D.N.Y. Sept. 27, 2010), aff’d, 451 Fed. App’x 57 (2d Cir. 2011) (finding no causation
where negative performance reviews were issued before and after protected activity). The denial
of a salary increase, failure to promote, and delay in receiving time off all occurred prior to the
time Palak filed her NYSDHR complaint, and she therefore cannot show a causal connection
between any of these actions and her protected activity.
4.

Hostile Work Environment
Palak alleges that she was subjected to a hostile work environment because of

various actions by the Hospital. Specifically, she contends that the accent mimicking, a
comment by a co-worker (referring to her as a “jerk”), being asked to empty bed linens, the poor
performance evaluations, and yelling and face-making by her supervisors contributed to a hostile
work environment. See SAC ¶¶ 4, 7, 8(2)-(4)(a)-(o); Pl. Dep. at 238. While Palak may
subjectively feel that the work environment at the Hospital was a hostile one, her subjective
belief is not enough. Even if true, the actions she cites are not so severe or pervasive that they
create an objectively hostile or abusive work environment. See Richardson, 180 F.3d at 436.
The conduct involving the comments was not frequent – she alleges three instances over the
course of her five year employment when other employees made harassing comments or
gestures. This is not sufficiently severe to establish a hostile work environment, as “the
harassment must be continuous and concerted not merely episodic.” See White v. Andy Frain
Servs., Inc., No. 12-CV-5868 (JG)(VVP), 2014 WL 3896066, at *9 (E.D.N.Y. Aug. 8, 2014)
(internal quotation marks and citation omitted). While the comments or gestures are certainly
not appropriate, the reality is that “many bosses [and co-workers can be] harsh, unjust, and rude,
but . . . this fact alone is insufficient to create a hostile work environment.” Chukwueze v. New
York City Emps. Ret. Sys., 891 F. Supp. 2d 443, 454 (S.D.N.Y. 2012) (quoting Alfano, 294 F.3d

23

at 377). Furthermore, the actions were not in any way physically threatening or humiliating, but
rather fall in the category of mere utterances. Lastly, other than the alleged accent-mimicking in
2011, the actions complained of do not indicate that they were motivated by discriminatory or
retaliatory animus. None of the comments or actions refer to Palak’s national origin, age or
complaints of discrimination and thus cannot support a claim of a hostile work environment. See
Petrisch v. HSBC Bank USA, Inc., No. 07-CV-3303 (KAM)(JMA), 2013 WL 1316712, at *13
(E.D.N.Y. Mar. 28, 2013).
5.

False Imprisonment
Palak cannot make out a claim of false imprisonment against the Hospital because

she has not shown that Gunaydin intended to confine her during the January 2014 meeting. The
events as described by Palak suggest that Gunaydin was acting in her role as supervisor and
attempting to relay the content of the 2013 evaluation to Palak. The conversation focused on her
performance. Palak alleges that she stood up possibly twice and asked to leave. Gunaydin told
her the meeting was not over and she sat back down – indicating that Palak consented to being in
the office. Palak does not allege that she demanded to leave, or that Gunaydin told her she could
not leave or physically restrained her in any way. The fact that the office was small and
Gunaydin was positioned between Palak and the door is not sufficient to establish that Gunaydin
intended to confine Palak. In sum, Palak has not established that Gunaydin intended to confine
her or that she did not consent to the confinement (i.e., being in the office).

24

CONCLUSION
For the reasons stated above, the Hospital’s motion for summary judgment is
granted in its entirety, and Palak’s cross-motion is denied.

So ordered.

John Gleeson, U.S.D.J.

Dated: June 12, 2015
Brooklyn, New York

25