Goffe v. NYU Hospital Center et al
MEMORANDUM & ORDER. Defendants' 33 Motion for Summary Judgment is denied, except for the Section 1981 claims against the individual defendants. On that claim the motion is granted. A jury trial shall be held on 10/31/2016 in Courtroom 10 B South. The magistrate judge shall select the jury that morning at a time to be determined by the magistrate. Pre-trial submissions due by 10/25/2016. Motions in limine due by 10/10/2016. A hearing on motions in limine, if any, shall be held on 10/17/2016 at 10:30 a.m. in Courtroom 10 B South. Ordered by Judge Jack B. Weinstein on 8/22/2016. (Barrett, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
– against –
NYU HOSPITAL CENTER, PETER
VARGAS, JASMINE CABRERA, JESSICA
LUGO, and MELISSA DELACASTILLO,
Gregory R. Preston
Preston & Wilkins, PLLC
3000 Hempstead Tpke
Levittown, NY 11756
NYU Hospital Center
Richard L. Steer
Jonathan Samuel Hershberg
Tara Toevs Carolan
Maxwell David Rosenthal
Tarter Krinsky & Drogin LLP
1350 Broadway, 11th Floor
New York, NY 10018
JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
Introduction ............................................................................................................................. 3
II. Facts ...................................................................................................................................... 3
A. Defendants ....................................................................................................................... 3
B. Plaintiff’s tenure at NYUHC ........................................................................................... 4
C. Alleged Discrimination .................................................................................................. 11
D. EEOC Charge................................................................................................................. 13
The Instant Action.......................................................................................................... 14
A. Summary Judgment Standard ........................................................................................ 14
B. Title VII and New York State Human Rights Law........................................................ 15
1. Disparate Treatment ................................................................................................. 15
2. Hostile Work Environment ...................................................................................... 17
3. Retaliation ................................................................................................................ 19
C. 42 U.S.C. § 1981 ............................................................................................................ 20
D. New York City Human Rights Law............................................................................... 21
IV. Application of Law to Facts .................................................................................................. 23
A. Statute of Limitations ..................................................................................................... 23
B. Disparate Treatment by NYUHC................................................................................... 24
1. Prima Facie Case..................................................................................................... 24
2. Non-Discriminatory Explanation ............................................................................ 26
3. Pretext ..................................................................................................................... 26
C. Hostile Work Environment by NYUHC ........................................................................ 28
D. Retaliation by NYUHC .................................................................................................. 33
New York City Human Rights Law............................................................................... 35
Section 1981 by Individual Defendants ......................................................................... 37
V. Conclusion ............................................................................................................................. 38
This is an employment discrimination case. It has some interest since it deals with
differences in training and discipline provided to different ethnic groups by their employers.
Plaintiff worked as a clerk in the outpatient laboratory at NYU Hospital Center
(“NYUHC”). She alleges that based on her race she suffered discrimination at the hands of her
Hispanic supervisors. She brings claims against the hospital and her individual supervisors and
colleagues for disparate treatment, hostile work environment, and retaliation under Title VII and
the New York Human Rights Law, and violations of the New York City Human Rights Law.
She seeks at least $2,500,000 in damages for emotional distress, and attorneys’ fees.
Defendants NYUHC, Peter Vargas, Jasmine Cabrera, Jessica Lugo, and Melissa
Delcastillo (“Defendants”) have moved for summary judgment. Defendants’ motion is granted
in part and denied in part.
NYUHC is a hospital located in Manhattan. Pl.’s Resp. to Defs.’ Local Civ. R. 56.1
Statement of Undisputed Material Facts, May 24, 2016, ECF No. 43 (“56.1 Response”), at ¶ 1.
NYUHC has adopted a policy against workplace harassment and discrimination, and distributes
statements of that policy to all new employees. NYUHC directs employees to make any
complaint of workplace harassment or discrimination either to the Employee Relations
Department or to a member of NYUHC’s senior management team. Id. at ¶ 97.
Non-party Angela Pratt, an African-American female who was the administrative director
of the outpatient laboratory, hired defendant Peter Vargas in 2004 as the Customer Service
Supervisor. Id. at ¶¶ 2, 6. Vargas is of Italian and Puerto Rican heritage. Id. at ¶ 11. Ms. Pratt
also hired defendants Jasmine Cabrera, Jessica Lugo, and non-party Edison Veras. Id. at ¶¶ 3-4.
In 2009, Vargas was promoted to Administrative Director of the outpatient laboratory. Id. at ¶ 7.
At some point after his promotion, Vargas hired defendant Melissa DelCastillo. Decl. of
Gregory R. Preston, May 20, 2016, ECF No. 46 (“Preston Decl.”), at Ex. 24 (Oct. 26, 2015 Dep.
Tr. of Peter Vargas), at 34:12-18. Cabrera, Lugo, and DelCastillo are Hispanic. 56.1 Response
at ¶ 10. Mr. Veras had been hired prior to plaintiff’s employment in the outpatient laboratory; he
left before she was hired, but returned after she began working there. Id. at ¶¶ 4-5.
As the Administrative Director, Vargas oversaw the outpatient laboratory, which was
divided into three departments: customer service, phlebotomy, and clerical. Id. at ¶ 8. During
plaintiff’s employment, there were five supervisors working under Vargas: DelCastillo in
customer service; Theresa Tyler and Tony Arceo in phlebotomy; and Lugo and Cabrera in
clerical. Id. at ¶ 9.
Plaintiff’s tenure at NYUHC
Plaintiff was hired by NYUHC on April 19, 2010 through a job security fund pursuant to
a collective bargaining agreement between the League of Voluntary Hospitals and Homes of
New York and 1199SEIU United Healthcare Workers East. Id. at ¶¶ 15-16, 19. Although
Vargas wanted to hire another candidate, it was his understanding that he was required to hire
plaintiff pursuant to the terms of the collective bargaining agreement. Id. at ¶ 18; Preston Decl.
at Ex. 1 (E-mail chain between Peter Vargas and Maria Felipe).
As part of her training, for roughly two-and-a-half hours each afternoon, plaintiff sat with
the employees in the outpatient laboratory’s “processing area,” “observ[ing] and tak[ing] notes.”
56.1 Response at ¶ 25. Plaintiff would also observe the people who were already in the area
processing samples, and take notes. Id. at ¶ 28. DelCastillo sat with plaintiff once briefly, for no
more than 15 minutes, while plaintiff was registering patients. During this observation plaintiff
deleted all of the patient demographics and had to start over again. Id. at ¶ 94.
A “Test on Policy and Procedures,” dated May 12, 2010, indicates that plaintiff scored an
unsatisfactory 38 out of 100. Decl. of Jasmine Cabrera in Supp. of Defs.’ Mot. for Summ. J.,
Mar. 25, 2016, ECF No. 36 (“Cabrera Decl.”), at Ex. A. An “Employee Exam on Policy &
Procedures in the Outpatient Lab,” dated May 21, 2010, reflects that plaintiff scored 56.5%.
Decl. of Peter Vargas in Supp. of Defs.’ Mot. for Summ. J., Apr. 7, 2016, ECF No. 40 (“Vargas
Decl.”), at Ex. D.
An “Initial Competency Assessment,” dated May 27, 2010, indicates that plaintiff
performed unsatisfactorily in many of her duties and was “unable to meet the minimum
requirements of a General Clerk.” Cabrera Decl. at Ex. B. That same day plaintiff was
terminated by Vargas due to substandard performance. Vargas Decl. at Ex. E; 56.1 Response at
According to the termination memorandum given to plaintiff, her termination was based
on her making the following errors:
17 orders placed missing required signatures and identification of samples received;
12 orders placed without the required patient identification numbers;
1 order placed on an incorrect patient;
2 orders placed with incorrect patient demographics;
3 missing required tests;
4 incorrect tests ordered; and
1 missing copy to physician;
Vargas Decl. at Ex. E.
Because plaintiff’s probationary period had been inadvertently miscalculated and had
passed, NYUHC was forced to reinstate plaintiff’s employment. 56.1 Response at ¶ 43. Plaintiff
was reinstated on June 1 or 2, 2010, with full back pay. Id. at ¶ 44.
On June 4, 2010, plaintiff was placed on a performance improvement plan as a result of
her continuing to “make significant errors that are a potential compromise of Patient Care.”
Vargas Decl. at Ex. F. As part of the plan, plaintiff was provided with a “Competency
Assessment for Re-Training Weekly Meeting Calendar.” The purpose of the calendar was to
create specific timeframes to discuss the previous weeks’ progress, to provide her with an
opportunity to review all the events of the previous weeks associated with her re-training, and to
discuss any questions or concerns she had with Vargas. Id. at Ex. G; 56.1 Response at ¶ 48.
Entries on the calendar showed significant improvement; plaintiff completed the performance
improvement plan by July 1, 2010. Vargas Decl. at Ex. G.
On June 30, 2010, plaintiff completed an “Employee Exam on Policy & Procedures in the
Outpatient Lab.” She scored a satisfactory 89%. Id. at Ex. I.
On July 1, 2010, a “Competency Assessment for Re-Training,” indicating the areas in
which plaintiff was to be assessed, was signed by Vargas. The document indicated that plaintiff
would be assessed in the following areas: proper verification of patient demographics, proper
verification of tests ordered and special information, order entry procedure in Netlims, ordering
Misc tests in Netlims, answering the telephone in Customer Service, performing add-ons, and
looking up specimen requirements. Id. at Ex. H. Plaintiff signed the document. Id.; 56.1
Response at ¶ 51.
On September 15, 2010, plaintiff had a “Verbal Conference” with Cabrera regarding
eleven errors plaintiff had made; the documents memorializing the conference do not indicate the
period in which the errors were made. According to the conference record, plaintiff had six
errors for missed tests, two errors for an incorrect test, one error for a missing comment, one
error for a missing source, and one error for a carbon copy. Cabrera Decl. at Exs. C-D. Plaintiff
disputes whether the errors she was accused of making were actually errors or were her fault.
See Decl. of Niesje Goffe, May 24, 2016, ECF No. 48 (“Goffe Decl.”), at ¶¶ 17-21, Exs. 7-8.
On October 1, 2010, plaintiff had a “Verbal Conference” with Lugo regarding eight
errors plaintiff had made in September. According to the documentation of the conference,
plaintiff had one incorrect label, one incorrect test, and six missed tests. Decl. of Jessica Lugo in
Supp. of Defs.’ Mot. for Summ. J., Apr. 6, 2016, ECF No. 38 (“Lugo Decl.”), at Ex. A (Oct. 1,
2010 Verbal Conference). Plaintiff disputes whether the errors she was accused of making were
actually errors or were her fault. See Goffe Decl. at ¶ 22, Ex. 9.
On October 28, 2010, Vargas met with plaintiff and her union delegate to discuss
multiple issues. Vargas Decl. at Ex. J. The first issue was plaintiff’s excessive absenteeism. Id.;
56.1 Response at ¶ 60. Plaintiff was issued a “Verbal Warning – Substandard Attendance” dated
October 28, 2010, in which she was reminded that “attendance is an essential component of [her]
overall job performance and Hospital Policy.” According to the memorandum, plaintiff called
out sick nine times between July 20, 2010 and October 28, 2010. Vargas Decl. at Ex. K (Oct. 28,
2010 Memorandum). Plaintiff was warned that excessive absenteeism prevents her from
“satisfactorily meeting the obligations of [her] job” and “places a heavy burden on [her] fellow
employees and causes operational difficulties for [the] department.” The warning further
advised plaintiff that her “failure to show immediate improvement in [her] attendance record will
lead to further disciplinary action up to and including termination.” Id.
The second issue discussed at the October 28 meeting concerned the investigation of the
vandalism of plaintiff’s laboratory coat. At some point her coat was splashed with some kind of
hazardous material. Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J., May 24, 2016, ECF No.
44 (“Opp’n Mem.”), at 9. Although plaintiff argues in her opposition brief that nothing was
done about this incident, she admits that the incident was investigated by the NYU Medical
Center Security Department. 56.1 Response at ¶ 90. When Security investigated, they asked
whether plaintiff was the one who damaged her own laboratory coat. Id. at ¶ 91. Plaintiff told
security that she thought it was Cabrera who damaged her belongings because she had made a
complaint to her delegate alleging that Cabrera had not secured plaintiff’s medical records. Id. at
¶ 92. Tony Arceo told Cabrera that she needed to secure plaintiff’s documents, and Vargas
agreed that the documents should not be left out in the open. Id. at 93. According to a
memorandum to file dated October 28, 2010, plaintiff was told that the investigation was
ongoing and a decision about reimbursement for damage to her shoes would be made once the
investigation was complete. Vargas Decl. at Ex. J.
The third issue discussed was the “documentation of errors.” The memorandum to file
notes that plaintiff was told, “if a problem arises with a specimen and the physician’s office
cannot be contacted the proper documentation of actions in the problem log is sufficient. There
is no need to write ‘This is not my error!’” Id.
The fourth issue discussed concerned an incident that had occurred the previous day with
a supervisor. The memorandum to file indicates that statements were taken from the involved
parties. Id. This might refer to plaintiff’s complaint that Melissa DelCastillo hit plaintiff on the
back of the head and, after being asked to stop, purportedly laughed at plaintiff. Plaintiff
reported the incident to her union delegate. This information is recounted in an e-mail from
plaintiff to the EEOC dated one year after the incident. Preston Decl. at Ex. 7 (Oct. 27, 2011 Email to EEOC). According to Defendants, DelCastillo was trying to reach into a cabinet over
plaintiff and accidentally hit plaintiff. See Hr’g Tr., Aug. 9, 2016.
On November 30, 2010, plaintiff had another “Verbal Conference” with Lugo regarding
four errors plaintiff had made in October. According to the conference records, plaintiff had one
incorrect patient error, one incorrect patient demographic error, and two missed tests. Plaintiff
refused to sign the document. Lugo Decl. at Ex. B.
On December 17, 2010, plaintiff had a third “Verbal Conference” with Lugo regarding
six errors she made in November. According to records of the conference, plaintiff had one
incorrect patient demographic error, one incorrect physician information error, one deletion of
requisition error, two missing test errors, and one incorrect comment location error. Plaintiff
again refused to sign the document memorializing the conference, instead writing “will do
better” on the signature line. Lugo Decl. at Ex. C.
On January 13, 2011, plaintiff had a fourth “Verbal Conference” with Lugo regarding six
errors plaintiff made in December. According to records of the conference, plaintiff had one
incorrect physician error, two physician missing errors, one incorrect test error, and two missed
test errors. Plaintiff again refused to sign, writing “will do better” on the signature line. Lugo
Decl. at Ex. D. Plaintiff disputes whether the errors she was accused of making were actually
errors or were her fault. See Goffe Decl. at ¶¶ 23-24, Ex. 10.
In January 2011, plaintiff had an “Attendance Review” covering the period from
September 1, 2010 to December 31, 2010. According to records of the review, plaintiff was late
one time, called out sick eight times, and had four ‘other’ absences. Lugo Decl. at Ex. E.
On January 13, 2011, there was apparently an incident in which plaintiff confronted a coworker, Charisse Anderson, about a text message that Anderson had sent to another employee in
the outpatient laboratory. The confrontation occurred near patients and became loud. Vargas
Decl. at Ex. L (Jan. 20, 2011 E-mail from Charisse Anderson), Ex. M (Jan. 14, 2011 E-mail from
Theresa Tyler). That evening it was reported that plaintiff became “very upset & hysterical”
over the belief that someone had removed a black book from her purse. Plaintiff demanded
security be called. The book was located in the lunch room area, plaintiff calmed down and
apologized. Id. at Ex. N (Jan. 17, 2011 E-mail from Curtis Brown).
On January 18, 2011, plaintiff apparently refused to accept a “Weekly Rotation for
Cancer Center Evening Drop Off” schedule when it was being distributed. Plaintiff allegedly
told the supervisor who was handing out the sheet to give it to the union delegate, rather than to
her. Lugo Decl. at ¶ 23, Ex. F; Goffe Decl. at Ex. 6.
On January 24, 2011, plaintiff was provided a “final warning with a one day suspension
for [her] overall work performance and [her] substandard behavior in the workplace.” Vargas
Decl. at Ex. O. The warning included as its base inappropriate behavior towards a supervisor,
looking at a co-worker’s cell phone, confronting a co-worker about a personal issue in a patient
care area, and refusing to accept a schedule rotation from a direct supervisor. The memorandum
also indicated that plaintiff had a total of 34 errors over the third and fourth quarters of 2010.
Both plaintiff and her union delegate refused to sign the memorandum. Id.
Plaintiff was fired on February 10, 2011. According to the termination memorandum,
plaintiff had made six more errors between January 28, 2011 and February 7, 2011. Id. at Ex. P.
Plaintiff disputes whether they were actually errors or were her fault. See Goffe Decl. at ¶¶ 2628.
Plaintiff filed a grievance through her union and the parties began an arbitration relating
to the termination. The parties ultimately settled the arbitration with an agreement that rescinded
the termination with no loss of seniority, transferred plaintiff to a different department, and paid
her $17,000. Preston Decl. at Ex. 20 (Settlement Agreement). Plaintiff remains employed as a
Central Processing Clerk in the Central Processing Unit at NYUHC at no financial loss. Opp’n
Mem. at 13.
In addition to the alleged vandalism of plaintiff’s laboratory coat and the incident
involving DelCastillo purportedly hitting plaintiff on the head, plaintiff makes several additional
complaints about how she was treated.
On June 1, 2010, when plaintiff was reinstated after her first termination, there was a
meeting between plaintiff, her union delegate, Cabrera and Vargas. According to a May 1, 2015
letter from the union delegate, discussed was that plaintiff had not been properly trained and that
co-workers were speaking Spanish to each other. Preston Decl. at Ex. 5 (May 1, 2015 Letter
from Matilde Velez). It is admitted that the union delegate told Cabrera “that this is not the first
time she had a conversation with [Cabrera] regarding not training the workers correctly.”
Compl., July 14, 2014, ECF No. 1-2, at ¶ 19. Plaintiff, who understands some Spanish, felt that
the use of Spanish in the workplace created a hostile work environment. Preston Decl. at Ex. 5
(May 1, 2015 Letter from Matilde Velez); 56.1 Response at ¶ 115. Cabrera and Vargas
reportedly agreed that plaintiff would receive training and that staff would be told not to speak
Spanish. Preston Decl. at Ex. 5 (May 1, 2015 Letter from Matilde Velez). Plaintiff admits that
Vargas did send out an e-mail reminding people to speak in English only, except to Spanishspeaking patients. Decl. of Richard L. Steer in Supp. of Defs.’ Mot. for Summ. J., Apr. 8, 2016,
ECF No. 39 (“Steer Decl.”), at Ex. C (Nov. 18, 2015 Dep. Tr. of Niesje Goffe) at 166:18-167:5.
On November 30, 2010, during the “Verbal Conference” plaintiff had with Lugo, she
alleges that during the course of the meeting she stepped outside to call her union delegate.
While outside, plaintiff claims to have overheard Cabrera (who was also present) refer to her as a
“black monkey.” Preston Decl. at Ex. 23 (Nov. 18, 2015 Dep. Tr. of Niesje Goffe), at 150:13151:19. Then, sometime in January 2011, plaintiff alleges that Cabrera referred to her as a
“mona negrita,” which plaintiff was told means “black monkey” in Spanish. Id. at 153:16154:25. Cabrera denies ever using that term. Steer Decl. at Ex. D (Aug. 4, 2015 Dep. Tr. of
Jasmine Cabrera), at 127:12-128:24.
Plaintiff further alleges that:
she was called stupid and denigrated by her Hispanic supervisors, Preston Decl. at
Ex. 23 (Nov. 18, 2015 Dep. Tr. of Niesje Goffe), at 74:6-77:24;
someone went into her bag and removed an approved vacation request slip, id. at
Lugo called her a Predator because plaintiff’s hair reminded Lugo of the alien
character from the movie Predator, id. at 100:6-103:13; and
she was denied personal, vacation and sick days even after requests had been
approved. Opp’n Mem. at 9.
To support her claims of discrimination, plaintiff provides various forms of documentary
support authored by herself and others. First, plaintiff submits a January 15, 2011 e-mail from
Marie James, a Senior Secretary at NYUHC, who recounts her knowledge of the treatment
plaintiff was purportedly subjected to. See Preston Decl. at Ex. 6 (Jan. 15, 2011 Marie James Email).
Second, plaintiff points to several anonymous letters submitted through a compliance
alert line that report incidents of racial and ethnic discrimination by Defendants. See id. at Ex. 8.
It is possible that each letter is actually by a single disgruntled employee.
Third, plaintiff submits handwritten pages from what appears to be a diary. Entries are
dated in June 2010 and July 2012. The June 2010 entries discuss plaintiff’s lack of training and
being accused of stealing a training manual. The July 2012 entry discusses an instance in which
“Ms L” or “Irena Lut.” looked at plaintiff “up and down” and “rolled her eyes at [plaintiff] and
gave [her] a dirty look.” The entry indicates that plaintiff wrote the individual’s name, the date
and time down in her book. Plaintiff apparently heard the individual tell someone over the
phone later that day about the incident and then laugh at plaintiff. The entry ends with “Lets see
her laugh on July 6, 2012 when she see [sic] me in court.” Preston Decl. at Ex. 10 (Diary
Entries). It is unclear what this court appearance refers to.
Plaintiff filed a charge of discrimination with the EEOC. Preston Decl. at Ex. 15 (Feb. 4,
2011 EEOC Notice of Charge of Discrimination). Daniel T. Driesen, associate general counsel
at NYUHC, received notice of the charge on or about February 14, 2011. Decl. of Daniel T.
Driesen in Supp. of Defs.’ Mot. for Summ. J., Apr. 6, 2016, ECF No. 37 (“Driesen Decl.”), at ¶
2. The initial document he received was unsigned. Mr. Driesen did not inform anyone else of
the charge until he received the signed charge, dated March 22, 2011. 56.1 Response at ¶ 89.
After an investigation, the EEOC concluded that there was credible witness testimony to confirm
Based on the above, [NYUHC]’s asserted defense does not
withstand scrutiny and the Commission has determined that there
is reasonable cause to believe that [NYUHC] has discriminated
against [plaintiff] on account of her race and color.
The evidence obtained during the investigation was insufficient to
establish cause on retaliation allegations because it is unlikely that
[NYUHC] received her EEOC Charge before she was terminated.
Preston Decl. at Ex. 21 (Feb. 6, 2014 EEOC Determination Letter).
The Instant Action
Plaintiff filed a complaint in New York Supreme Court on July 14, 2014. The complaint
asserts causes of action against NYUHC for discrimination based on disparate treatment, hostile
work environment, and retaliation in violation of Title VII, the Civil Rights Act, the New York
Human Rights Law, and the New York City Human Rights Law. It also asserts causes of action
under the New York City Human Rights Law and Section 1981 against the individual
defendants. See Summons & Compl., July 14, 2014, ECF No. 1-2.
Defendants removed the action to this court and answered. See Notice of Removal, Aug.
21, 2014, ECF No. 1; Answer and Affirmative Defenses, Oct. 8, 2014, ECF No. 14.
Summary Judgment Standard
Summary judgment is appropriate where admissible evidence in the form of affidavits,
deposition transcripts, or other documentation demonstrates the absence of a genuine issue of
material fact and one party’s entitlement to judgment as a matter of law. Bank of Am., N.A. v.
Fischer, 927 F. Supp. 2d 15, 25 (E.D.N.Y. 2013) (citing Viola v. Phillips Med. Sys. of N. Am., 42
F.3d 712, 716 (2d Cir. 1994)). “The relevant governing law in each case determines which facts
are material; ‘[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.’” Id. (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “No genuinely triable factual issue exists when
the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after
drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational
jury could find in the non-movant’s favor.” Id. (citing Chertkova v. Conn. Gen. Life Ins. Co., 92
F.3d 81, 86 (2d Cir. 1996)).
Inquiries about discrimination often depend upon the state of a plaintiff’s mind, requiring
at least some consistent, objective evidence.
In discrimination cases, the inquiry into whether the plaintiff’s sex
(or race, etc.) caused the conduct at issue often requires an
assessment of individuals’ motivations and state of mind, matters
that call for a “sparing” use of the summary judgment device
because of juries’ special advantages over judges in this area.
Nonetheless, an employment discrimination plaintiff faced with a
properly supported summary judgment motion must do more than
simply show that there is some metaphysical doubt as to the
material facts. She must come forth with evidence sufficient to
allow a reasonable jury to find in her favor. Moreover, factual
allegations that might otherwise defeat a motion for summary
judgment will not be permitted to do so when they are made for the
first time in the plaintiff’s affidavit opposing summary judgment
and that affidavit contradicts her own prior deposition testimony.
Brown v. Henderson, 257 F.3d 246, 251-52 (2d Cir. 2001) (internal quotations omitted)
Title VII and New York State Human Rights Law
1. Disparate Treatment
Title VII protects individuals from discriminatory employment practices based on race,
color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2(a)(1)-(2). The New York State
Human Rights Law similarly protects employees against discrimination based on age, race,
creed, color, national origin, sexual orientation, military status, sex, marital status, or disability.
N.Y. Exec. L. § 291(1).
“The analytical framework for evaluating a claim of discrimination in violation of Title
VII is well established. [The court applies] the three-step burden shifting analysis enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d
668 (1973).” Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 129 (2d Cir. 1996). The same burden
shifting approach is applied to discrimination claims under the New York State Human Rights
Law. Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737
F.3d 834, 843 (2d Cir. 2013).
According to the McDonnell Douglas framework, the plaintiff must first establish a
prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2)
she is competent to perform the job or is performing her duties satisfactorily; (3) she suffered an
adverse employment action; and (4) the adverse employment action occurred under
circumstances supporting an inference of discrimination based on her membership in the
protected class. See McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
A plaintiff will only be considered to have been subjected to an adverse employment
action if she “endures a ‘materially adverse change’ in the terms and conditions of employment.”
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). For the actions
complained of to be materially adverse, “a change in working conditions must be more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (internal
quotation omitted). “A material adverse change is one that has an attendant negative result, a
deprivation of a position or an opportunity.” Parrish v. Sollecito, 258 F. Supp. 2d 264, 269
(S.D.N.Y. 2003) (internal quotations omitted). “[N]ot everything that makes an employee
unhappy is an actionable adverse action.” Sank v. City Univ. of N.Y., 219 F. Supp. 2d 497, 503
(S.D.N.Y. 2002) (internal quotation omitted).
Normal scheduling inconveniences, disciplinary notices, threats of disciplinary action and
scrutiny of the employee’s actions do not constitute adverse employment actions. See, e.g.,
Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001) (holding that
reprimands and threats of disciplinary action did not constitute adverse employment actions).
Once a plaintiff establishes a prima facie case of unlawful discrimination, the burden
shifts to the defendant to supply a legitimate nondiscriminatory reason for the adverse action.
Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). The burden is “one of
production, not persuasion.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000). If the defendant meets its burden of production, the McDonnell Douglas framework
drops out, and the plaintiff must show that “the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.” Id. at 143 (citation omitted).
2. Hostile Work Environment
Hostile work environment claims brought pursuant to Title VII and the New York State
Human Rights Law are analyzed under the same standard. Russo v. N.Y. Presbyterian Hosp.,
972 F. Supp. 2d 429, 449 (E.D.N.Y. 2013).
For a plaintiff to establish that she was subject to a hostile work environment, it must be
(1) that the workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the
conditions of [his or] her work environment, and (2) that a specific
basis exists for imputing the conduct that created the hostile
environment to the employer.
Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (emphasis added, internal quotation
omitted). “Generally, the same standards apply to both race-based and sex-based hostile
environment claims.” Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 436 n.2 (2d
Cir. 1999), abrogated on other grounds by 548 U.S. 53 (2006).
“The first element of a hostile work environment claim has both an objective and
subjective component: ‘the misconduct must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim must also [reasonably]
subjectively perceive that [objective] environment to be abusive.’” Petrosino, 385 F.3d at 221
(quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
In assessing the atmosphere of the workplace, the court looks at the circumstances in
their entirety. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993). Relevant factors include
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance,” but “no single factor is required.” Id. at 23. “Isolated instances
of harassment ordinarily do not rise to this level.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
(2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85. A few isolated
instances of little weight are not enough:
In order to meet [her] burden [of proving a hostile environment
claim], the plaintiff must show more than a few isolated incidents
of racial enmity; there must be a steady barrage of opprobrious
racial comments; evidence solely of sporadic racial slurs does not
Williams v. Cty. of Westchester, 171 F.3d 98, 100-01 (2d Cir. 1999) (internal quotations and
citations omitted, emphasis added). The plaintiff must demonstrate either that a single incident
was extraordinarily severe, or that a series of incidents were sufficiently continuous and
concerted to have effectively altered the conditions of her working environment. See, e.g., Perry
v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); Cruz, 202 F.3d at 571 (concluding that
plaintiff had adduced evidence that she and others were subjected to “blatant racial epithets on a
regular if not constant basis” and that from this evidence “a jury reasonably might conclude that .
. . [the] working environment . . . was hostile to [plaintiff] on the basis of her race”).
A plaintiff must show that she was targeted for abusive treatment because of a protected
status. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(emphasizing that Title VII prohibits only workplace harassment involving statutorily proscribed
forms of discrimination); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is
axiomatic that mistreatment at work, whether through subjection to a hostile environment or
through such concrete deprivations as being fired or being denied a promotion, is actionable
under Title VII only when it occurs because of an employee’s sex, or other protected
Favorable or equitable treatment of a protected group as a whole does not preclude a Title
VII claim by a member of that group. Connecticut v. Teal, 457 U.S. 440, 454-55 (1982) (“Under
Title VII, a racially balanced work force cannot immunize an employer from liability for specific
acts of discrimination. . . . It is clear that Congress never intended to give an employer license to
discriminate against some employees on the basis of race or sex merely because he favorably
treats other members of the employees’ group.”) (citations omitted).
Title VII makes it “an unlawful employment practice for an employer to discriminate
against any of his employees . . . because [such employee] has opposed any practice made an
unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a).
In the context of a motion for summary judgment, the plaintiff
must first demonstrate a prima facie case of retaliation, after which
the defendant has the burden of pointing to evidence that there was
a legitimate, nonretaliatory reason for the complained of action. If
the defendant meets its burden, the plaintiff must demonstrate that
there is sufficient potential proof for a reasonable jury to find the
proffered legitimate reason merely a pretext for impermissible
Richardson, 180 F.3d at 443. A prima facie case of retaliation requires a showing of: “(1)
participation in a protected activity that is known to the defendant, (2) an employment decision
or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity
and the adverse decision.” Id.; see also Sumner v. U.S. Postal Service, 899 F.2d 203, 208-09 (2d
Cir. 1990) (plaintiff must show that “[s]he engaged in protected participation or opposition under
Title VII, that the employer was aware of this activity, that the employer took adverse action
against the plaintiff, and that a causal connection exists between the protected activity and the
adverse action, i.e., that a retaliatory motive played a part in the adverse employment action”).
To establish that a plaintiff’s activity is protected under Title VII, she “need not prove the
merit of [her] underlying discrimination complaint, but only that [she] was acting under a good
faith, reasonable belief that a violation existed.” Sumner, 899 F.2d at 209 (citations omitted).
The filing of formal charges of discrimination are protected, as are “informal protests of
discriminatory employment practices, including making complaints to management, writing
critical letters to customers, protesting against discrimination by industry or by society in
general, and expressing support of co-workers who have filed formal charges.” Id. (citations
omitted). There must be a causal connection between the protected activity and the adverse
employment action, which can be established indirectly with circumstantial evidence, as by
showing that the protected activity “was followed by discriminatory treatment or through
evidence of disparate treatment of employees who engaged in similar conduct or directly through
evidence of retaliatory animus.” Id. (citing DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d
111, 115 (2d Cir. 1987), and Grant v. Bethlehem Steel, 622 F.2d 43, 46 (2d Cir. 1980)).
42 U.S.C. § 1981
“Most of the core substantive standards that apply to claims of discriminatory conduct in
violation of Title VII are also applicable to claims of discrimination in employment in violation
of [Section] 1981 . . . .” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004).
The significant differences, for purposes of the instant litigation, are as follows: (1) “while Title
VII claims are not cognizable against individuals, individuals may be held liable under section
1981 . . . for certain types of discriminatory acts, including those giving rise to a hostile work
environment;” and (2) “although in certain circumstances a Title VII claim may be established
through proof of a defendant’s mere negligence, without a showing of discriminatory intent, . . .
a plaintiff pursuing a claimed violation of section 1981 . . . must show that the discrimination
was intentional.” Id. at 226 (citations omitted); see also Michaelidis v. Berry, 502 F. App’x 94,
96 (2d Cir. 2012) (“a § 1981 claim requires proof of an intent to discriminate based on race”).
New York City Human Rights Law
The New York City Human Rights Law (“NYCHRL”) is somewhat broader than the
federal or state statute. It makes it
an unlawful discriminatory practice . . . [f]or an employer . . .
because of the actual or perceived age, race, creed, color, national
origin, gender, disability, marital status, partnership status, sexual
orientation or alienage or citizenship status of any person, to refuse
to hire or employ or to bar or to discharge from employment such
person or to discriminate against such person in compensation or in
terms, conditions or privileges of employment.
N.Y.C. Admin. Code § 8-107(1)(a) (emphasis added). The law also prohibits employers from
retaliation “because such person has . . . opposed any practice forbidden under this chapter.”
N.Y.C. Admin. Code § 8-107(7). The “NYCHRL additionally proscribes aiding and abetting
discrimination and aiding and abetting retaliation against employees who oppose discriminatory
practices.” Dillon v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 655 (E.D.N.Y. 2015) (citing N.Y.C.
Admin. Code § 8-107(6)) (emphasis added).
Before 2005, claims under the NYCHRL were “construed ‘to be coextensive with its
federal and state counterparts.’” Velazco v. Columbus Citizens Found., 778 F.3d 409, 410 (2d
Cir. 2015) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d
Cir. 2013)). In 2005 the NYCHRL was amended through the Local Civil Rights Restoration Act
of 2005, which created two new rules of liberal construction:
First, it explicitly created a one-way ratchet, by which
“[i]nterpretations of New York state or federal statutes with similar
wording may be used to aid in interpret[ing]” the NYCHRL,
insofar as “similarly worded provisions of federal and state civil
rights laws [would constitute] a floor below which the [NYCHRL]
cannot fall.” Second, it amended the NYCHRL to require a liberal
construction of its amendments “for the accomplishment of the
[NYCHRL’s] uniquely broad and remedial purposes . . .,
regardless of whether federal or New York State civil and human
rights laws, including those laws with provisions comparablyworded to provisions of [the NYCHRL], have been so construed.”
Id. (quoting Local Civil Rights Restoration Act of 2005, Loc. Law No. 85, N.Y.C., N.Y. (2005)
(“Restoration Act”), at §§ 1, 7) (emphasis added, internal citation omitted).
The following more liberal principles now guide the evaluation of NYCHRL claims:
(1) NYCHRL claims must be analyzed separately and
independently from federal and state discrimination claims;
(2) the totality of the circumstances must be considered because
the overall context in which the challenged conduct occurs cannot
(3) the federal severe or pervasive standard of liability no longer
applies to NYCHRL claims, and the severity or pervasiveness of
conduct is relevant only to the scope of damages;
(4) the NYCHRL is not a general civility code, and a defendant is
not liable if the plaintiff fails to prove the conduct is caused at least
in part by discriminatory or retaliatory motives, or if the defendant
proves the conduct was nothing more than petty slights or trivial
(5) while courts may still dismiss truly insubstantial cases, even a
single comment may be actionable in the proper context; and
(6) summary judgment is still appropriate in NYCHRL cases, but
only if the record establishes as a matter of law that a reasonable
jury could not find the employer liable under any theory.
Dillon, 85 F. Supp. 3d at 654 (first emphasis added) (quoting Mihalik, 715 F.3d at 113).
“New York courts seeking to heed the City Council’s command have approached
discrimination and retaliation claims under a similar framework. In both situations, the plaintiff
must establish a prima facie case, and the defendant then has the opportunity to offer legitimate
reasons for its actions.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75-76 (2d Cir. 2015).
“If the defendant satisfies that burden, summary judgment is appropriate if no reasonable jury
could conclude either that the defendant’s reasons were pretextual, . . . or that the defendant’s
stated reasons were not its sole basis for taking action, and that its conduct was based at least in
part on discrimination.” Id. at 76 (citations omitted).
Application of Law to Facts
Statute of Limitations
Defendants contend that “[c]laims related to Plaintiff’s May 27, 2010 termination are
beyond the statutory period under Title VII, Section 1981, the NYSHRL and the NYCHRL, and
are therefore not actionable.” Mem. of Law in Supp. of Defs.’ Mot. for Summ. J., Apr. 8, 2016,
ECF No. 34 (“Defs.’ Mem.”), at 7 n.6. They argue that “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id.
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
Although Defendants correctly cite the Supreme Court’s first holding in Morgan, they
ignore the Court’s guidance in the opinion’s following paragraph: “As we have held, however,
this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel.”
Morgan, 536 U.S. at 113.
Here, plaintiff timely filed her charge with the EEOC in February 2011. Until the EEOC
issued a right to sue letter, plaintiff could not commence an action in court. Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 384-85 (2d Cir. 2015) (explaining that administrative
exhaustion is a precondition to a Title VII suit). The EEOC did not issue the right to sue letter
until 2014. Preston Decl. at Ex. 21 (Feb. 2, 2014 EEOC Determination Letter). In these
circumstances, where plaintiff’s delay is entirely attributable to an administrative agency, it
would be unfair to permit the statute of limitations to bar her from complaining about events that
occurred in 2010. Applying equitable power it is held that the statute of limitations was tolled
while the EEOC conducted its investigation.
Disparate Treatment by NYUHC
1. Prima Facie Case
To prevail on summary judgment, plaintiff must sustain her burden through the three-step
burden shifting analysis. This process begins with determining whether plaintiff has alleged a
prima facie case. Defendants gloss over this step in their briefing, focusing instead on the
second step of the analysis, while plaintiff moves straight to the third step with arguments about
pretext. Even if the parties appear to take the first step for granted, the court will still evaluate
plaintiff’s claim for a prima facie case.
To make out a prima facie case, plaintiff must show that (1) she is a member of a
protected class; (2) she is competent to perform the job or is performing her duties satisfactorily;
(3) she suffered an adverse employment action; and (4) the adverse employment action occurred
under circumstances supporting an inference of discrimination based on her membership in the
protected class. See McLee, 109 F.3d at 134.
Plaintiff is a member of a protected class: she is an African American female. There also
does not appear to be a dispute about plaintiff’s ability to perform her job.
The evidence demonstrates that NYUHC was required to hire plaintiff because she was
performing a similar position at another hospital and was assumed to be qualified. Plaintiff is
currently working in a similar position in a different department at NYUHC. See Opp’n Mem. at
13; Hr’g Tr., Aug. 9, 2016. There is no evidence in the record about plaintiff’s performance in
this new position. If she is currently performing satisfactorily in a similar position, then it may
be reasonable to infer that she was qualified for her prior position.
The third requirement – an adverse action – is met. Plaintiff is relying upon her
termination as the adverse action. See Hr’g Tr., Aug. 9, 2016. An adverse action generally
occurs “when an employee is denied an economic benefit.” Hill v. Children’s Vill., 196 F. Supp.
2d 389, 397 (S.D.N.Y. 2002) (citing Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1176 n.6
(2d Cir. 1996)). Typically, being fired from a job would constitute an adverse action. Galabya,
202 F.3d at 640. Courts in the circuit have held that where an employee is rehired and received
back pay, economic damages are eliminated and the termination cannot serve as an adverse
action. See Hill, 196 F. Supp. 2d at 397 (plaintiff rehired one month after termination); Lumhoo
v. Home Depot USA, Inc., 229 F. Supp. 2d 121, 139 (E.D.N.Y. 2002) (plaintiff did not suffer an
adverse action where he was reinstated with back pay three-weeks after termination); Lewis v.
Boehringer Ingelheim Pharm., Inc., 79 F. Supp. 3d 394, 408 (D. Conn. 2015) (no adverse action
where plaintiff was fired and re-hired on same day). This authority is distinguishable from the
instant case where plaintiff was out of work for more than one year. During this time she had to
proceed through an arbitration, and purportedly had to be hospitalized for a nervous breakdown.
See Hr’g Tr., Aug. 9, 2016. Although plaintiff eventually did receive back pay, being deprived
of salary for such a prolonged period of time, as well as the additional injury the situation
appears to have caused, is sufficient to constitute an adverse action under the law.
The fourth component of the prima facie case – an inference that the adverse action was a
result of membership in a protected class – is met. Plaintiff has put forward several bits and
pieces of evidence indicating that non-Hispanic employees were treated unfairly and less
favorably then Hispanic employees. This treatment includes allegations about the failure to train
non-Hispanic employees properly. Because plaintiff’s termination was purportedly based on
poor performance, and her poor performance was arguably caused by her poor training, it can be
concluded that the adverse action she suffered was a result of Defendants’ discriminatory
2. Non-Discriminatory Explanation
Having made out a prima facie case using her terminations as an adverse action, the
burden shifts to Defendants to proffer a non-discriminatory explanation. Defendants contend
that there is ample evidence in the form of test scores and evaluations which justify the decision
to fire plaintiff for non-discriminatory reasons. See Defs.’ Mem. at 7-8, 11-14. Defendants also
point to plaintiff’s allegedly insubordinate behavior. See id. at 12-14.
The evidence shows that plaintiff repeatedly performed poorly on tests, and evaluations
documented repeated serious errors. See Cabrera Decl at Exs. A-D; Vargas Decl. at Exs. D-E, P;
Lugo Decl. at Exs. A-D. Defendants also provide documentation of incidents reflecting
inappropriate behavior on the part of plaintiff. See Vargas Decl. at Exs. L-O. This evidence is
sufficient to meet Defendants’ burden of production in providing a non-discriminatory
justification for plaintiff’s termination. See Reeves, 530 U.S. at 142.
Having offered a non-discriminatory reason, plaintiff must submit evidence indicating
that Defendants’ proffered justification for her termination was pretext. She makes three
arguments: first, that not all of the errors attributed to her were actual errors; second, some of the
errors she did make were caused by bad information given to her by her supervisors and the lack
of training she received; and third, that similarly situated Hispanic employees who made similar
errors were not subject to the same discipline that she received. Opp’n Mem. at 21-22.
There is evidence supporting plaintiff’s second and third arguments. Defendants admit
that plaintiff’s union delegate had more than one conversation with Cabrera about not training
workers properly. Preston Decl. at Ex. 5 (May 1, 2015 Letter from Matilde Velez); Compl., July
14, 2014, ECF No. 1-2, at ¶ 19. Plaintiff submitted a declaration in which she claims that neither
Cabrera nor any other supervisor sat with her during her first month of employment to train her.
Goffe Decl. at ¶¶ 3-4. She also provides deposition testimony from three people who state that
non-Hispanic employees were treated differently when it came to training, and the training such
employees received was improper. See Preston Decl. at Ex. 25 (Oct. 22, 2015 Dep. Tr. of
Theresa Tyler), at 27:15-30:22, 33:14-34:2, and 38:6-21; id. at Ex. 27 (Dec. 8, 2015 Dep. Tr. of
Nadila Rigaud), at 14:3-25; id. at Ex. 28 (Dec. 8, 2015 Dep. Tr. of Anthony Bibus) at 50:1254:3. The EEOC also concluded that Defendants’ “asserted defense does not withstand scrutiny”
and “there is reasonable cause to believe that [NYUHC] has discriminated against [plaintiff] on
account of her race and color.” Id. at Ex. 21 (Feb. 6, 2014 EEOC Determination Letter).
With respect to her third argument, plaintiff points to testimony about Guillermo
Manrique, a Hispanic employee who made many errors but apparently was never suspended or
terminated, as well as testimony that generally describes how Hispanic employees were not
disciplined in the same way as non-Hispanic employees. See Preston Decl. at Ex. 24 (Oct. 26,
2015 Dep. Tr. of Peter Vargas), at 177:8-182:6 (discussing Mr. Manrique’s disciplinary actions);
id. at Ex. 25 (Oct. 22, 2015 Dep. Tr. of Theresa Tyler), at 30:23-34:2 (testifying about Mr.
Manrique as well as the generally disparate treatment between Hispanic and non-Hispanic
employees); id. at Ex. 28 (Dec. 8, 2015 Dep. Tr. of Anthony Bibus), at 54:4-55:9 (testifying it
was a “joke” how many errors two Hispanic employees made without being disciplined); id. at
Ex. 29 (Dec. 14, 2015 Dep. Tr. of Anthony Serrano), at 21:23-23:22 (testifying that Hispanic
employees would not be disciplined or told about their mistakes while non-Hispanic employees
Defendants respond that Mr. Manrique has a “different disciplinary history” that makes
him an unsuitable comparator for plaintiff, but they fail to address the repetitious testimony from
multiple individuals who all describe disparate treatment relating to discipline. See Reply Mem.
of Law in Further Supp. of Defs.’ Mot. for Summ. J., June 15, 2016, ECF No. 55, at 17-18. This
evidence plaintiff presents is enough to show that Defendants’ explanation may be a pretext for
Having satisfied her burden on the final step of the analysis, Defendants’ motion on the
complaint’s first cause of action for disparate treatment pursuant to Title VII and the New York
State Human Rights Law is denied.
Hostile Work Environment by NYUHC
To survive summary judgment on a hostile work environment claim, the law sets a high
bar. Only actions that are “because of” plaintiff’s race or another protected class are considered
on summary judgment. Petrisch v. HSBC Bank USA, Inc., No. 07-CV-3303, 2013 WL 1316712,
at *12 (E.D.N.Y. Mar. 28, 2013). Plaintiff has submitted sufficient evidence with respect to her
training and discipline to survive summary judgment on this claim. At trial, the plaintiff’s
additional complaints which do not appear to clearly be tied to race may be permitted as
evidence of the larger context.
Plaintiff recites her list of complaints in support of her hostile work environment claim.
See Opp’n Mem. at 28 (listing training, discipline, being hit in the head, denial of request for
time off, being called a predator, stupid, and a black monkey). On this motion, the evidence only
supports a finding that the lack of training and discipline may have been specifically because of
plaintiff’s race. See Preston Decl. at Ex. 24 (Oct. 26, 2015 Dep. Tr. of Peter Vargas), at 177:8182:6; id. at Ex. 25 (Oct. 22, 2015 Dep. Tr. of Theresa Tyler), at 27:15-34:2, 38:6-21; id. at Ex.
27 (Dec. 8, 2015 Dep. Tr. of Nadila Rigaud), at 14:3-25; id. at Ex. 28 (Dec. 8, 2015 Dep. Tr. of
Anthony Bibus), at 50:12-55:9; id. at Ex. 29 (Dec. 14, 2015 Dep. Tr. of Anthony Serrano), at
21:23-23:22. There is no evidence that the various one-off comments that were made, the denial
of request for time off, or the instance where plaintiff was allegedly hit in the head were because
of plaintiff’s race.
The lack of training meant that she was unable to perform her job properly, leading to the
purportedly disparately-applied discipline. The evidence indicates that the failure to train and the
discipline went on for some time, and occurred to others. Both the training and discipline
impacted all facets of her job. The evidence also indicates that there was a correlation between
training, discipline, and race.
The other actions about which plaintiff complains, however, all appear to be either oneoff or sporadic events. With respect to the disparaging comments plaintiff complains about, she
alleges (i) that Cabrera referred to her twice (once to her and once during a conversation with
Lugo) as a “black monkey,” (ii) that DelCastillo once called plaintiff stupid in a conversation
with Cabrera, and (iii) that Lugo once commented how plaintiff’s hair reminded her of the movie
“Predator.” See Preston Decl. at Ex. 23 (Nov. 18, 2015 Dep. Tr. of Niesje Goffe), at 150:13151:19, 153:16-154:25, 74:6-77:24, 100:2-103:13. On summary judgment, a handful of
comments from different individuals, some of which are not clearly racially motivated, is not
sufficient to create a hostile work environment. Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir. 1997) (“For racist comments, slurs, and jokes to constitute a hostile work environment,
there must be more than a few isolated incidents of racial enmity, meaning that instead of
sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.”) (internal
citations and quotations omitted). At trial, these comments may be introduced and considered as
part of the larger context of plaintiff’s work environment.
The incident where DelCastillo allegedly hit plaintiff on the head also occurred only on
one occasion. Preston Decl. at Ex. 7 (Oct. 27, 2011 E-mail to EEOC). Plaintiff’s conclusion that
this action was racially motivated is based entirely on her own assumptions, and is contradicted
by her deposition testimony. See Defs.’ Mem. at 36; Preston Decl. at Ex. 23 (Nov. 18, 2015
Dep. Tr. of Niesje Goffe), at 131:20-24, 133:14-134:3.
Plaintiff also asserts that Hispanic employees spoke in Spanish to each other about her,
but does not know this for sure – she only assumes the conversations were about her because the
speakers were apparently looking at her. Steer Decl. at Ex. C (Nov. 18, 2015 Dep. Tr. of Niesje
Goffe) at 109:3-14. Such speculation is not sufficient to survive a summary judgment motion.
See Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (“Conclusory allegations,
conjecture, and speculation . . . are insufficient to create a genuine issue of fact.”). Plaintiff’s
complaint was also responded to by management, which sent out an e-mail to the staff
proscribing the use of Spanish. 56.1 Response at ¶ 118; Steer Decl. at Ex. C (Nov. 18, 2015
Dep. Tr. of Niesje Goffe) at 166:18-167:5; see also Hr’g Tr., Aug. 9, 2016.
Plaintiff’s complaints about her laboratory coat being vandalized and someone taking an
approved vacation slip cannot support her hostile work environment claim since there is no
evidence that the action was racially motivated. See Russo, 972 F. Supp. 2d at 447-48 (“A
plaintiff may only recover on a hostile work environment claim if the hostile work environment
occurs because of an employee’s protected characteristic . . . .”) (citing Rivera v. Rochester
Genesee Regional Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012)). Similarly, plaintiff has
made no evidentiary showing that she was denied personal, vacation, or sick days as a result of
Defendants submit that, even if plaintiff is able to make out a claim for hostile work
environment, summary judgment in favor of NYUHC is still warranted because the alleged
offenders were primarily co-workers, rather than supervisors, and because NYUHC took
reasonable care to prevent and correct the improper behavior. Defs.’ Mem. at 29-30.
Defendants also argue that plaintiff’s claim is barred because she failed to take advantage of the
corrective measures available to her at NYUHC. Id. at 30-32.
The Supreme Court has explained that whether a corporate defendant is responsible for
harassment perpetrated by its employees depends on whether or not the employees were
supervisors and whether a tangible employment action is taken:
If the harassing employee is the victim’s co-worker, the employer
is liable only if it was negligent in controlling working conditions.
In cases in which the harasser is a “supervisor,” however, different
rules apply. If the supervisor’s harassment culminates in a tangible
employment action, the employer is strictly liable. But if no
tangible employment action is taken, the employer may escape
liability by establishing, as an affirmative defense, that (1) the
employer exercised reasonable care to prevent and correct any
harassing behavior and (2) that the plaintiff unreasonably failed to
take advantage of the preventive or corrective opportunities that
the employer provided.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). For purposes of this rule, a “supervisor”
is someone who “is empowered by the employer ‘to take tangible employment actions against
the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.’” Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113-14 (2d Cir.
2015) (quoting Vance, 133 S. Ct. at 2443). Even if an individual does not have the sole authority
to hire or fire an employee, the individual may still be considered to be a supervisor. See, e.g.,
Preuss v. Kolmar Labs., Inc., 970 F. Supp. 2d 171, 187 (S.D.N.Y. 2013) (holding that being able
to recommend an adverse employment action may be sufficient to constitute a “supervisor”);
Lolonga-Gedeon v. Child & Family Servs., 144 F. Supp. 3d 438, 441 (W.D.N.Y. 2015)
(indicating that employee’s ability to take disciplinary action against plaintiff after consultation
with higher management raised genuine issue of material fact precluding summary judgment;
“[t]he Supreme Court made it clear in Vance that an individual may qualify as a supervisor even
though her decisions are subject to review by higher management”); but cf. Felmine v. Star, No.
13-CV-2641, 2016 WL 4005763, at *2 (E.D.N.Y. July 25, 2016) (defendant was not plaintiff’s
“supervisor” because “[h]e had no authority to hire, fire, evaluate, or discipline employees, or
determine [plaintiff’s] compensation”).
Defendants concede that Vargas is a supervisor. Defs.’ Mem. at 28-29. DelCastillo,
Lugo, and Cabrera are all designated by title as supervisors and each one appears to have had
some ability to discipline and influence plaintiff’s working conditions. See 56.1 Response at ¶ 9;
Preston Decl. at Ex. 5 (May 1, 2015 Letter from Matilde Velez); id. at Ex. 22 (Clerical
Supervisor Position Description); id. at Ex. 24 (Oct. 26, 2015 Dep. Tr. of Peter Vargas), at 21:29, 35:7-36:13, 38:3-12. They were each introduced as supervisors at the hearing. See Hr’g Tr.,
Aug. 9, 2016. Whether they had enough authority to qualify as supervisors is a question of fact
for the jury. See Lolonga-Gedeon, 144 F. Supp. at 441 (“Courts in this Circuit have declined to
grant summary judgment after Vance where there is evidence that the alleged harasser had the
ability to recommend the plaintiffs termination.”).
Assuming that the individual defendants do qualify as supervisors, whether plaintiff
sufficiently took advantage of the corrective opportunities provided is also a jury question.
Plaintiff testified that she did complain to the Employee & Labor Relations Manager several
times. Preston Decl. at Ex. 23 (Nov. 18, 2015 Dep. Tr. of Niesje Goffe), at 103:22-104:22,
217:12-218:23. Defendants contend that her complaints were insufficient because plaintiff never
clearly complained that she was being racially discriminated against. Defs.’ Mem. at 30-31.
Whether plaintiff’s complaints were sufficiently reasonable in the circumstances is a factual
issue that is appropriate for a jury decision.
Defendants’ motion for summary judgment on plaintiff’s hostile work environment claim
Retaliation by NYUHC
Plaintiff’s retaliation claim is subject to the same McDonnell Douglas shifting framework
that her disparate treatment claim is. To establish her prima facie case, plaintiff argues that she
made internal complaints and filed an EEOC charge, and as a result was terminated for a second
time. Opp’n Mem. at 33-34.
Defendants contend that plaintiff cannot show the requisite “but-for” causation between
her complaints and termination. Defs.’ Mem. at 33-34. Specifically, Defendants argue that
Vargas, who made the ultimate decision to terminate plaintiff, was unaware of the EEOC
complaint at the time he decided to terminate her. Rather, only NYUHC’s associate general
counsel, who had received notice of the unperfected charge, was aware at that time. Id. In
support of this argument Defendants submit an affidavit from NYUHC’s associate general
counsel. See Decl. of Daniel T. Driesen in Supp. of Defs.’ Mot for Summ. J., Apr. 6, 2016, ECF
There are three problems with Defendants’ argument. First, concluding that the associate
general counsel had not told anyone else about the EEOC charge – which was dated prior to
plaintiff’s termination but allegedly received 4 days after her termination – requires making a
credibility determination that is inappropriate on summary judgment. Second, “for purposes of a
prima facie case, a plaintiff may rely on ‘general corporate knowledge’ of her protected activity
to establish the knowledge prong of the prima facie case.” Kwan v. Andalex Grp. LLC, 737 F.3d
834, 844 (2d Cir. 2013) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.
2000)). Because corporate counsel may have had knowledge of the EEOC charge at the time the
decision to terminate her was made, general knowledge can be imputed to NYUHC. Third,
plaintiff asserts – with some evidentiary support – that she had made internal complaints before
her termination; Defendants would arguably have been aware of these internal complaints. See,
e.g., Preston Decl. at Ex. 5 (May 1, 2015 Letter from Matilde Velez); Id. at Ex. 6 (Jan. 15, 2011
Marie James E-mail); Id. at Ex. 23 (Nov. 18, 2015 Dep. Tr. of Niesje Goffe), at 103:22-104:22,
217:12-218:23; 56.1 Response at ¶ 92.
Defendants make a second argument that “no causal nexus can be established where, as
here, Plaintiff’s poor performance was recognized and addressed before any complaint of
discrimination.” Defs.’ Mem. at 34. In support of their argument, Defendants point to Deebs v.
Alstom Transp., Inc., 346 F. App’x 654 (2d Cir. 2009), which explained “the law is clear that
‘[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began
well before the plaintiff had ever engaged in any protected activity, an inference of retaliation
does not arise.’” 346 F. App’x at 657 (quoting Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001)); see also Inguanzo v. Hous. & Servs., Inc., 621 F. App’x 91, 92 (2d
Cir. 2015) (summary order) (“causality is lacking when adverse employment actions were both
part, and the ultimate product, of an extensive period of progressive discipline [beginning prior
to the complaint]”) (quotations omitted); Colvin v. Keen, No. 13-CV-3595, 2016 WL 233668, at
*6 (E.D.N.Y. Jan. 19, 2016) (retaliation could not be shown where record of discipline and errors
by plaintiff existed); Adia v. MTA Long Island R. Co., No. 02-CV-6140, 2006 WL 2092482, at
*10 (E.D.N.Y. July 26, 2006) (history of deficient work precluded showing of retaliation).
Whether this rule precludes plaintiff’s claim turns on disputed facts that must be
answered by the jury at trial. Summary judgment is inappropriate on plaintiff’s retaliation claim.
New York City Human Rights Law
NYCHRL claims for disparate treatment, hostile work environment, and retaliation
require less evidence to survive summary judgment than claims under the state human rights law
and federal law. See, e.g., Adams v. City of N.Y., 837 F. Supp. 2d 108, 128 (E.D.N.Y. 2011)
(“claims of hostile work environment under the NYCHRL need not establish severe and
pervasive conduct to establish liability, so long as the behavior complained of is worse than petty
slights and trivial inconveniences.”) (quotation omitted). Plaintiff’s NYCHRL claims for
disparate treatment and hostile work environment survive summary judgment for the same
reason and on the same limited ground that her claims under federal and state law survive.
Plaintiff’s retaliation claim under the NYCHRL is not subject to the same ‘but-for’
causation requirement that federal and state law contain: “a plaintiff must still establish that there
was a causal connection between her protected activity and the employer’s subsequent action . . .
.” Russo, 972 F. Supp. 2d at 456. There is an issue of fact about who knew of the EEOC charge
when plaintiff was terminated. The Deebs rule appears to apply to NYCHRL claims in the same
way it applies to federal and state law claims. See Gorman v. Covidien, LLC, 146 F. Supp. 3d
509, 534 (S.D.N.Y. 2015) (existence of performance improvement plan precluded retaliation
claim under NYCHRL); Cadet-Legros v. N.Y. Univ. Hosp. Ctr., 135 A.D.3d 196, 206-07 (1st
Dep’t 2015) (termination following record of progressive discipline precluded retaliation claim
under NYCHRL); see also Bacchus v. N.Y. City Dep’t of Educ., 137 F. Supp. 3d 214, 247
(E.D.N.Y. 2015) (where employer’s action is a continuing course of conduct that began before
employee’s complaint, causation cannot be established for retaliation claim). Because plaintiff’s
termination appears to have been the continuation of the progressive discipline she had been
subject to prior to complaining, her retaliation claim under the NYCHRL should also be
Individual liability under the NYCHRL only exists if the individual “actually participated
in the conduct giving rise to the discrimination claim.” Dillon, 85 F. Supp. 3d at 658. Under this
standard, only the individual defendants who were involved in plaintiff’s training and discipline
should face liability. The evidence indicates that this category would include Cabrera and Lugo,
who were both supervisors in the clerical department, and Vargas who was responsible for the
negative evaluations plaintiff received and her ultimate termination. Testimony from third-party
witnesses also implicate Cabrera and Lugo in treating non-Hispanic employees differently.
Plaintiff has presented sufficient evidence to raise a triable issue of fact on this point.
Defendants’ motion for summary judgment on the NYCHRL claims against Vargas, Cabrera,
and Lugo is denied.
The evidence against DelCastillo is sparse: her alleged behavior appears to be limited to
hitting plaintiff on the head once while reaching over plaintiff. There is no evidence that this
action was intentionally or unintentionally discriminatory. Nor does it appear that she was
involved in the failure to train or disciplining of plaintiff. In the larger context that a jury will be
presented with, DelCastillo’s behavior may be found to be sufficient. Defendants’ motion for
summary judgment on the NYCHRL claims against DelCastillo is denied.
Defendants contend that although the NYCHRL is broader than state or federal law, it
still requires more than plaintiff’s “own conjecture” to survive summary judgment. Defs.’ Mem.
at 15. They also argue that each of the incidents about which plaintiff complains “is: (a) not
motivated by discriminatory animus; (b) the product of Plaintiff’s own conjecture and
supposition, unsupported by any record evidence; or (c) insufficiently severe or pervasive to alter
the terms and conditions of Plaintiff’s employment.” Id. at 18.
As explained above, plaintiff has submitted sufficient evidence to defeat Defendants’
opposition. She has offered more than mere speculation, and the failure to train her properly and
discipline her in a disparate manner impacted every facet of her job, including causing her to
ultimately be fired.
Section 1981 by Individual Defendants
Although Section 1981 claims are analyzed under a similar framework to the one used for
Title VII claims, there is a significant difference in that a Section 1981 claim requires a showing
of intentional discrimination. See Patterson, 375 F.3d at 226.
Plaintiff has not made out a prima facie case with respect to any of the individual
defendants. The sum of her argument in opposition to the motion is that “it is claimed the
Defendants Vargas, Cabrera, Lugo and DelCastillo aided, abetted and were the principle
instruments of the discrimination against Ms. Goffe.” Opp’n Mem. at 24. Plaintiff does not
point to any evidence that plainly shows an intent to discriminate against her. The most
supportive evidence in the record only shows disparate treatment in the training and discipline of
Hispanic and non-Hispanic employees. See, e.g., Preston Decl. at Ex. 25 (Oct. 22, 2015 Dep. Tr.
of Theresa Tyler), at 29:8-30:22; id. at Ex. 27 (Dec. 8, 2015 Dep. Tr. of Nadila Rigaud), at 14:325; id. at Ex. 28 (Dec. 8, 2015 Dep. Tr. of Anthony Bibus), at 50:12-55:9. But this testimony
does not show an overt intent to discriminate.
Defendants’ motion for summary judgment on the Section 1981 claims against the
individual defendants is granted.
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