Bhatti v. Physicians Affiliate Group of New York, P.C.
ORDER granting 23 Motion for Summary Judgment -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion for summary judgment is granted in its entirety and this action is dismissed, with prejudice. The Clerk of the Court is directed to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 9/7/2021. (Irizarry, Dora)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
PHYSICIANS AFFILIATE GROUP OF
NEW YORK, P.C.,
MEMORANDUM AND ORDER
18-cv-03139 (DLI) (SJB)
DORA L. IRIZARRY, United States District Judge:
On May 29, 2018, Plaintiff Harjinder Bhatti (“Plaintiff”) filed this retaliation action against
her former employer, Physicians Affiliate Group of New York, P.C. (“PAGNY” or “Defendant”),
alleging violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. ⁋⁋ 2000 et seq., New
York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§8-101 et seq. See, generally, Compl.,
Dkt. Entry No. 1. Following the close of discovery, Defendant moved for summary judgment.
See, Def.’s Notice of Mot. for Summ. J., Dkt. Entry No. 23; Def.’s Mem. of Law in Supp. of Mot.
for Summ. J. (“Def. Mem.”), Dkt. Entry No. 25. Plaintiff opposed the motion. See, Pl.’s Mem. of
Law in Opp’n to Def.’s Mot. for Summ. J. (“Pl. Opp’n”), Dkt. Entry No. 27. Defendant replied.
See, Def.’s Reply Mem. of Law in Supp. of Def.’s Mot. for Summ. J. (“Def. Reply”), Dkt. Entry
No. 29. For the reasons set forth below, Defendant’s motion is granted in its entirety.
The following relevant facts are taken from the parties’ Local Civil Rule 56.1 statements,
affidavits, and exhibits. See, Def.’s Local Rule 56.1 Statement of Undisputed Material Facts in
Supp. of Mot. for Summ. J. (“Def. 56.1”), Dkt. Entry No. 26-2; Pl.’s Counterstatement of Facts
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Pursuant to Local Rule 56.1 (“Pl. 56.1”), Dkt. Entry No. 26-2. Unless otherwise noted, these facts
are not in dispute. As it must, the Court has considered only facts recited by Plaintiff and
Defendant in their respective Rule 56.1 statements that are established by admissible evidence and
disregarded conclusory allegations and legal arguments contained therein.
See, Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]here there are no citations or where the
cited materials do not support the factual assertions in the [s]tatements, the Court is free to
disregard the assertion.”) (internal quotation marks and citations omitted).
In this action, Plaintiff asserts a retaliation claim only. See, Compl. at ⁋⁋ 35-42; Pl. Opp’n
at 1 n.1 (“Plaintiff’s claims in this matter have always been for retaliation, and not
discrimination.”). Plaintiff alleges that Defendant retaliated against her for filing a charge of
gender discrimination with the Equal Employment Opportunity Commission ("EEOC") and an
employment discrimination lawsuit against Corizon Health, Inc. (“Corizon”) on April 9, 2014 and
August 28, 2015, respectively. See, Pl. Opp’n at 2, 16-19.
Plaintiff’s Employment at Corizon
From 2001 to December 2015, Plaintiff was employed as a staff physician by Corizon, a
company responsible for providing medical care at Rikers Island Correctional Facility (“Rikers”).
Def. 56.1 at ⁋ 7. During this period, Plaintiff received annual performance evaluations based on
five components: Job Knowledge, Quantity, Quality, Communication Skills, and Punctuality and
Attendance. Id. at ⁋ 9. Between 2001 and 2009, Plaintiff received overall ratings of either “Above
Average” and “Average” in her evaluations. Id. at ⁋⁋ 10-15, 17; See also, Pl. 56.1 at ⁋⁋ 10-15, 17.
In 2010, Plaintiff was assigned to work at the Otis Batum Correctional Center (“OBCC”)
at Rikers under the supervision of Dr. Michael Latunji (“Latunji”), the OBCC Site Medical
Director. Def. 56.1 at ⁋ 19. Physician duties at OBCC consisted of providing medical services to
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inmates and Department of Corrections (“DOC”) staff. Id. at ⁋ 21. While at OBCC, Plaintiff also
worked with Ofelia Balilo (“Balilo”), the OBCC Health Services Administrator (“HSA”), a nonmedical staff member in charge of scheduling and staffing. Id. at ⁋ 36. In her evaluation dated
April 20, 2010, Plaintiff received an overall rating of “Outstanding” from Latunji. See, Corizon
Evaluations, Ex. G to Blair Decl., Dkt. Entry No. 24-7, at 20-21.
According to Plaintiff, on September 20, 2010, she had a “serious disagreement and
management problem” with Latunji when he delayed sending a patient with a hip fracture to the
hospital emergency room.
See, Plaintiff’s Rebuttal to July 25, 2014 Corrective Action
Memorandum (“Corrective Action Memo Rebuttal”), dated August 4, 2014, Ex. I to Decl. of
Amanda M. Blair in Supp. of Def.’s Mot. for Summ. J. (“Blair Decl.”), Dkt. Entry No. 24-9. In
her evaluation dated January 20, 2012, which covered the calendar year 2011, Plaintiff received
an overall rating of “Above Average.” See, Corizon Evaluations, Ex. G to Blair Decl., at 22-23.
For reasons unknown to the Court, there is no record of Plaintiff having received annual
evaluations for 2012 and 2013. See, Def. Reply at 7.
Plaintiff’s EEOC Charge
On April 9, 2014, Plaintiff filed a gender discrimination charge with the EEOC (the “EEOC
charge”). Def. 56.1 at ⁋ 33; See also, EEOC Charge of Discrimination (“EEOC Charge”), dated
April 9, 2014, Ex. J to Blair Decl., Dkt. Entry No. 24-10, at 1-2. Plaintiff claimed that Corizon
failed to interview or hire her for a Physician Central Intake position. See, EEOC Charge, at 1.
Plaintiff alleged that she possessed qualifications and experience superior to those of the male
physicians selected to fill the full time vacancies and that Corizon’s senior management staff at
Rikers was exclusively male. Id. at 1-2. Plaintiff specifically identified Dr. Jay Cowan (“Cowan”),
Regional Medical Director, Dr. Luis Cintron (“Cintron”), Regional Assistant Medical Director,
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Yussuf Fazal, Regional Vice President of Operations, and Latunji as members of the senior
management staff. Id. However, Plaintiff conceded that Latunji was not involved in the selection
process for the Physician Central Intake position. Def. 56.1 at ⁋ 35. According to Latunji, he did
not know about Plaintiff’s EEOC charge. Id. at ⁋ 34. Plaintiff did not know whether Latunji ever
was aware of the EEOC charge. Pl. Dep., Ex. C to Blair Decl., Dkt. Entry No. 24-3, at 50. In
addition, Latunji and Plaintiff never discussed the EEOC charge. Def. 56.1 at ⁋ 35; Pl. Dep. at 50.
For her evaluation dated December 15, 2014, Plaintiff received an overall rating of
“Average.” See, Corizon Evaluations, Ex. G to Blair Decl., at 24-25. Plaintiff received an “Above
Average” rating for the Job Knowledge component and “Average” ratings for the Quantity and
Quality components. Id. at 24. Plaintiff received “Below Average” ratings for the Communication
Skills and Punctuality and Attendance components. Id. at 24-25. Latunji commented in the
evaluation that Plaintiff needed to work on her “communication skills with both coworkers and
the management team.” Id. at 25. Latunji added that Plaintiff “tend[ed] to be argumentative when
an obvious constructive criticism [was] brought to her attention” and that she needed to “improve
on her time management” and “to be a team player.” Id.
In her January 26, 2015 letter addressed to the Director of Human Resources at Corizon,
Plaintiff contested her 2014 evaluation. See, Pl.’s Rebuttal to 2014 Corizon Evaluation, dated
January 26, 2015, Ex. M. to Blair Decl., Dkt. Entry No. 24-13. She claimed that the “less than
favorable ratings were given in retaliation for filing an employment discrimination charge with
EEOC in 2014.” Id. Plaintiff specified that her Communication Skills rating of “below average"
was “at odds with past years because [she] affirmatively challenged the work place discrimination”
and that her "below average" Punctuality and Attendance rating was “partly the result of enhanced
security measures.” Id.
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Plaintiff’s Corizon Lawsuit
After receiving a right to sue letter from the EEOC on June 2, 2015, Plaintiff brought a
discrimination and retaliation action against Corizon on August 28, 2015 (the “Corizon lawsuit”).
See, Bhatti v. Corizon Health, Inc., Case Dkt. No. 15-cv-05044 (LDH) (CLP); See also, Pl.’s
Compl. Against Corizon (“Corizon Compl.”), Ex. F to Blair Decl., Dkt. Entry No. 24-6, at ⁋ 4.
Plaintiff claimed that she had been denied the Physician Central Intake Position at Rikers’ West
Facility Jail, while eleven men and one woman were hired. Corizon Compl. at ⁋ 33. Plaintiff also
claimed that she had received disciplinary notices, dated July 23, 2014 and August 15, 2014, in
retaliation for filing the EEOC charge. Id. at ⁋⁋ 20-23. Additionally, Plaintiff alleged that, as part
of the retaliation, Latunji gave her an overall rating of “Average” with two “Below Average”
ratings for the Communication Skills and Punctuality and Attendance components in her
December 15, 2014 evaluation. Id. at ⁋ 26; See also, Def. 56.1 at ⁋ 58. Plaintiff further alleged
that Latunji denied her medical education trainings. Id. at ⁋⁋ 25, 27, 31. Lastly, Plaintiff alleged
that Latunji and Balilo falsely accused Plaintiff of behaving unprofessionally on September 30,
2014 and February 3, 2014. Id. at ⁋⁋ 24, 29. Plaintiff and Corizon reached a settlement and, on
August 18, 2016, and the action was dismissed with prejudice based on the parties’ stipulation of
dismissal. See, Bhatti, Case Dkt. No. 15-cv-05044, Dkt. Entry Nos. 19-21. Latunji testified that
he was not aware of Plaintiff’s lawsuit against Corizon. Def. 56.1 at ⁋ 61.
Transition from Corizon to PAGNY
In 2015, New York City decided to terminate its contract with Corizon effective January
1, 2016 and began the process of transferring the medical oversight at Rikers to New York City
Health + Hospitals (“Health + Hospitals”). Def. 56.1 at ⁋ 64. In August 2015, Dr. Ross
MacDonald (“MacDonald”) became the Chief of Medicine at Health + Hospitals. Id. at ¶ 65. As
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part of the transition, Health + Hospitals was responsible for employing the management staff at
Rikers, while PAGNY was responsible for employing the physicians at Rikers. Id. Initially,
PAGNY did not extend Plaintiff an offer of employment under the new model based on concerns
about Plaintiff’s teamwork and communication skills, as well as her general attitude and
unwillingness to accommodate the needs of the clinic. Id. at ¶¶ 67-69. On November 20, 2015, a
representative from Doctors Council, Plaintiff’s union, notified Plaintiff that she did not receive
an offer from PAGNY and asked her to provide a response to the disciplinary notices she had
received from Corizon on July 25, 2014 and August 18, 2014, which formed the basis of PAGNY’s
decision not to hire her. Id. at ¶ 70.
On December 9, 2015, Plaintiff, through her union, appealed the non-offer of employment.
Id. at ¶ 71. Dr. MacDonald and the assistant chiefs at Health + Hospitals, along with Latunji,
reviewed the appeal and decided to offer Plaintiff a physician position with a probationary period
of one year. Id. at ¶ 74. Dr. MacDonald felt that the staff could work with Plaintiff because the
concerns about her did not involve her clinical care. Id. at ¶ 73. Out of the four appeals filed by
Doctors Council for Plaintiff and others, only Plaintiff prevailed and received employment with
PAGNY. Id. at ¶ 71.
On December 22, 2015, Dr. Patricia Yang (“Yang”), Health + Hospitals Correctional
Health Services Senior Vice President, emailed Nathaniel Dickey (“Dickey”), Correctional Health
Services Assistant Director of Strategic Initiatives, asking to set up quarterly meetings to review
performance evaluations of the fifteen probationary employees, including Plaintiff. Def. 56.1 at ¶
76. On December 28, 2015, the Chief Executive Officer of PAGNY, the Chief Human Resources
Officer of PAGNY, and the President of Doctors Council signed a letter confirming their mutual
understanding that Plaintiff was offered employment on the condition that she would be subjected
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to a one-year probationary period with quarterly performance evaluations. Id. at ¶ 77. The
Memorandum of Agreement between PAGNY and Doctors Council, effective January 1, 2016,
stated that “[a]ll employees shall maintain their respective date of hire and seniority for all
purposes, including any probationary period, except where agreed to otherwise by the parties.” Id.
at ¶ 78; See also, PAGNY Offer of Employment Documents, Ex. O to Blair Decl., Dkt. Entry No.
24-15, at 5.
On January 1, 2016, Plaintiff began her employment with PAGNY. Def. 56.1 at ¶ 80. She
remained assigned to OBCC under the supervision of Latunji. Id. Balilo became the Health +
Hospitals Associate Director and continued to work with Plaintiff at OBCC. Id. at ¶ 88.
Plaintiff’s Evaluations at PAGNY
On April 13, 2016, Plaintiff received her first quarterly evaluation from PAGNY, covering
the period between January 1, 2016 and March 31, 2016. See, Documents Concerning Plaintiff’s
Evaluations at PAGNY (“PAGNY Evaluations Docs.”), Ex. S to Blair Decl., Dkt. Entry No. 2419, at 5-8. Latunji and Dr. MacDonald signed the evaluation and gave Plaintiff an overall rating
of “Below Standard.” Id. at 7-8. In the “Summary” section of the evaluation, Latunji noted that
“[t]he rating for this probationary quarter is below standard because Dr. Bhatti continues to
demonstrate critical deficiencies in working as part of the clinic based team. She makes minimal
effort at communication with her peers and supervisors and her communication is often resentful
and unprofessional. Specific incidents are enumerated in the attached supporting documentation.”
Id. at 7. In his comment section, MacDonald remarked that, “I have conferred with Latunji on the
content of this evaluation and agree with the findings and plan of action. Despite sound clinical
judgment, Dr. Bhatti displays critical deficiency in the area of teamwork, accepting instruction,
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communication and interdisciplinary coordination and cooperation.” Id. at 8. Plaintiff signed the
receipt of the evaluation on April 18, 2016. Id.
On April 21, 2016, Plaintiff submitted her rebuttal to the April 13, 2016 evaluation,
addressed to the Chief Human Resources Officer of PAGNY. Id. at 10. She disagreed with “the
comments regarding relations with patients/public, judgment and reliability.” Id.
contested that she had problems communicating or cooperating with the OBCC personnel. Id.
Additionally, she provided her own account of events that took place on January 26, 2016, January
19, 2016, February 16, 2016, March 17, 2016, and March 25, 2016 regarding the delay in patient
care, a patient complaint against her, and her interactions with nursing staff and Latunji. Id. at 1011. Plaintiff alleged that Latunji “raised his voice” at her on January 26, 2016 about a medication
order. Id. at 10.
On October 9, 2016, Plaintiff received her second evaluation from PAGNY, covering the
period between April 1, 2016 and June 30, 2016. See, Id. at 12-15. Latunji and MacDonald signed
the evaluation and gave an overall rating of “Below Standard.” Id. at 14-15. In the “Summary”
section of the evaluation, Latunji stated that, “[t]he rating for this probationary quarter is below
standard because Dr. Bhatti continues to demonstrate critical deficiencies in working as part of the
clinic based team. She makes minimal effort at communication with her peers and supervisors
and her communication is often resentful and unprofessional.” Id. at 14. Dr. MacDonald did not
provide any additional comments. Id. at 15. Plaintiff signed the receipt of the evaluation on
October 19, 2016. Id.
On October 28, 2016, Plaintiff submitted her rebuttal to both the April 13, 2016 and
October 19, 2016 evaluations, addressed to the Chief Human Resources Officer of PAGNY. Id.
She provided remarks on all seven components of the evaluation, which included,
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“Knowledge of Job,” “Quality of Work,” “Quantity of Work,” “Relationship with Patient/Public,”
“Judgment,” “Adaptability,” and “Reliability.” Id. She further commented that “[p]oor work
conditions, disorganized workflow and staff shortage reaching crisis level has been noted in detail
by other practitioners (email sent to management). While problems are well documented, solutions
are not. How is it fair to call one physician unprofessional and below standard? If all staff
members know the importance of every one else’s position, it can create great relationships and
achieve the goals for all areas of patient’s needs.” Id. at 19. There is no evidence that Plaintiff’s
rebuttals altered the evaluations.
Plaintiff’s Termination from PAGNY
In a letter dated December 22, 2016, Ms. Martha Vormittag, the Director of Human
Resources & Administration at PAGNY, notified Plaintiff that she did not pass the “agreed-upon
probation period” with PAGNY. Pl.’s Termination Letter, Ex. T to Blair Decl., Dkt. Entry No.
24-20. The letter further stated that, as of December 22, 2016, Plaintiff was no longer employed
by PAGNY. Id. MacDonald testified that, during his meetings with Plaintiff concerning her
performance, she often blamed other individuals, including Latunji and DOC staff, and did not
engage in any self-reflection. Def. 56.1 at ⁋ 125. MacDonald further stated that the decision to
recommend the termination of Plaintiff s employment during her probationary period was a
collaboration between him and the Human Resources leadership of Correctional Health Services.
Id. at ⁋ 126.
According to Plaintiff, prior to filing the instant action, she had filed a charge of
discrimination with the EEOC, which then issued her a right to sue letter on March 2, 2018.
Compl. at ¶ 4. Plaintiff never attached the right to sue letter to the Complaint nor provided the
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letter as part of her response to the summary judgment motion. As such, it is not clear what that
EECO discrimination charge entailed or whether it is related to the instant action as this action
concerns only retaliation, not discrimination, relating back to actions alleged to have occurred in
2014 and 2015. See, Pl. Mem. at 1 n.1.
Plaintiff claims that PAGNY continued, or allowed to continue, the pattern of retaliatory
conduct for her complaints of discrimination against her superiors at both Corizon and PAGNY.
Compl. at ¶ 34. Plaintiff alleges that PAGNY retaliated against her for filing the EEOC charge
and the Corizon lawsuit by: (1) initially not offering her a position with PAGNY; (2) issuing her
two “negative” evaluations; and (3) terminating her employment with PAGNY. See, Pl. Opp’n at
16-19. Defendant argues that Plaintiff’s retaliation claim must be dismissed for failure to make a
prima facie case. See, generally, Def. Mem.; Def. Reply.
Summary judgment is appropriate 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.” Fed. R.
Civ. P. 56(a). In deciding a motion for summary judgment, the court “must resolve all ambiguities,
and credit all factual inferences that could rationally be drawn, in favor of the party opposing
summary judgment and determine whether there is a genuine dispute as to a material fact, raising
an issue for trial.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.
2007) (internal quotation marks and citations omitted). A fact is “material” if it “might affect the
outcome of the suit under governing law.” Id. (internal quotation marks and citations omitted).
An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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The movant bears the “difficult burden” of establishing that there are no genuine issues of
material fact such that summary judgment is appropriate. Jeffreys v. City of N.Y., 426 F.3d 549,
554 (2d Cir. 2005) (citation omitted). Once the movant has met its initial burden, the party
opposing summary judgment “must do more than simply show that there is some metaphysical
doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (internal quotation marks, citation, and emphasis omitted). The
nonmoving party may not rely on “[c]onclusory allegations, conjecture, and speculation.” Kerzer
v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted).
In determining whether summary judgment is warranted, “the court’s responsibility is not
to resolve disputed issues of fact but to assess whether there are any factual issues to be tried[.]”
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citations omitted); See also, Jeffreys,
426 F.3d at 553 (“Assessments of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary judgment.”) (internal quotation marks
and citation omitted). However, “[w]hen opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
In the context of employment discrimination and retaliation claims, courts must make
special considerations. Specifically, where direct evidence of an employer’s retaliatory intent is
not readily discernible, district courts must “carefully scrutinize” the available evidence for
“circumstantial proof[.]” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224
(2d Cir. 1994). Moreover, “summary judgment may not be granted simply because the court
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believes that the plaintiff will be unable to meet his or her burden of persuasion at trial . . . [t]here
must be a lack of evidence in support of the plaintiff’s position or the evidence must be so
overwhelmingly tilted in one direction that any contrary finding would constitute clear error.”
Danzer v. Norden Systems, Inc., 151 F.3d 50, 54 (2d Cir. 1998). Nevertheless, these special
considerations do not reduce the pleading requirements imposed upon plaintiffs necessary to defeat
summary judgment motions. See, Baldwin v. Goddard Riverside Cmty. Ctr., 53 F. Supp.3d 655,
667 (S.D.N.Y. 2014).
Before filing a Title VII claim, a plaintiff must exhaust her administrative remedies by
satisfying two conditions: (1) timely filing a charge of discrimination with the EEOC or an
equivalent state or city agency, and (2) timely filing a suit in federal court upon receipt of a right
to sue notice from the EEOC. 42 U.S.C. § 2000e-5(e)-(f)(1); See also, Deravin v. Kerik, 335 F.3d
195, 200 (2d Cir. 2003) (“As a precondition to filing a Title VII claim in federal court, a plaintiff
must first pursue available administrative remedies and file a timely complaint with the EEOC.”)
(citations omitted). A district court only may review Title VII claims that were either contained
in the EEOC charge or are “reasonably related” to claims in the charge. DeBerry v. Brookdale
Univ. Hosp. and Med. Center (citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d
683, 686 (2d Cir. 2001) (per curiam).
Plaintiff alleges that, in 2018, prior to filing the instant action, she filed a charge of
discrimination with the EEOC, which then purportedly issued her a right to sue letter on March 2,
2018. Compl. at ¶ 4. She did not allege that the EEOC complaint also addressed the retaliation
claim she now makes. However, Plaintiff neither attached the right to sue letter to the Complaint
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nor did she provide the letter as part of the summary judgment motion. The Court cannot
determine whether the 2018 right to sue letter, if it exits, concerns this action. Notably, Plaintiff
has not offered any information as to whether Plaintiff’s retaliation claim here is reasonably related
to her 2018 EEOC claim. Instead, Plaintiff’s retaliation claim concerns the first EEOC claim she
filed and the ensuing right to sue letter that served as the basis for her initial lawsuit filed in this
district in 2015. As such, whether or not Plaintiff filed an EEOC claim in 2018 is irrelevant to the
issues before the Court. The Court finds that, under the circumstances presented here, the Court
has jurisdiction over the retaliation claim as it relates back to the initial discrimination claims filed
in 2014 and 2015.
Title VII Claim
Title VII forbids an employer from retaliating against an employee for, inter alia,
complaining of employment discrimination prohibited by Title VII. “It shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a).
Plaintiff testified that she does not believe Latunji or MacDonald discriminated against her
because of her gender. Pl. 56.1 at ⁋ 113. As such, the present action concerns Defendant’s alleged
retaliatory conduct only, not any alleged underlying gender discrimination. To prevail on her
retaliation claim, Plaintiff need not prove that her underlying complaint of discrimination had
merit, “but only that it was motivated by a good faith, reasonable belief that the underlying
employment practice was unlawful.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d
Cir. 2013) (internal quotation marks and citations omitted).
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Title VII retaliation claims are analyzed pursuant to the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. (citing Hicks v. Baines, 593 F.3d
159, 164 (2d Cir. 2010)). Under the first step of the framework, Plaintiff must establish a prima
facie case of retaliation by showing: (1) participation in a protected activity; (2) Defendant's
knowledge of the protected activity; (3) an adverse employment action; and 4) a causal connection
between the protected activity and the adverse employment action. Id. at 844 (citation omitted).
Plaintiff’s burden at this first step is de minimis and “the court’s role in evaluating a summary
judgment request is to determine only whether proffered admissible evidence would be sufficient
to permit a rational finder of fact to infer a retaliatory motive.” Hicks, 593 F.3d at 164 (quoting
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)) (internal quotations marks
With respect to the first element, the term “protected activity” refers to “action taken to
protest or oppose statutorily prohibited discrimination.’” Fraser v. MTA Long Island R.R., 295 F.
Supp.3d 230, 270 (E.D.N.Y. 2018) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.
2000)) (internal quotation marks omitted). For a complaint to qualify as protected activity, the
plaintiff must have a “good faith, reasonable belief” that she is opposing an unlawful practice.
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013)
(internal quotation marks and citation omitted). In the instant action, Defendant does not dispute
that Plaintiff participated in protected activities by filing:
(1) an EEOC charge of gender
discrimination on April 18, 2014, (2) a formal response to her 2014 evaluation on January 26,
2015, and (3) the Corizon lawsuit on August 28, 2015. Def. Mem. at 5.
However, Defendant contends that Plaintiff has failed to satisfy the second element, that
Defendant had knowledge of Plaintiff’s protected activities. Id. Plaintiff presents two separate
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arguments for satisfying the knowledge requirement. First, Plaintiff argues that PAGNY had
“general corporate knowledge” of Plaintiff’s protected activities because Corizon was its
predecessor at Rikers. See, Pl. Opp’n at 13. Second, Plaintiff argues that Latunji had actual
knowledge of the protected activities. Id. The Court finds that Plaintiff’s arguments lack merit.
The Second Circuit Court of Appeals has held that, in satisfying the second element, all
that is required is “general corporate knowledge that the plaintiff has engaged in a protected
activity” and the knowledge requirement “is met if the legal entity was on notice.” Gordon v.
N.Y.C. Bd. of Educ., 232 F.3d 111, 116, 1113-14 (2d Cir. 2000). The evidence here does not
support that PAGNY had corporate knowledge of the protected activities merely by succeeding
Corizon’s role at Rikers. Plaintiff cites Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d
199 (2d Cir. 2006) and Alston v. N.Y.C. Transit Auth., 14 F. Supp.2d 308 (S.D.N.Y. 1998) as
support, but her reliance on these cases is misplaced. See, Pl. Opp’n at 13. In Kessler, the Second
Circuit found that general corporate knowledge existed because the defendant corporation made
submissions in opposition to the plaintiff’s discrimination complaint. See, Kessler, 461 F.3d at
210. Unlike Kessler, here there is no evidence in the record that PAGNY responded to either the
EEOC charge or the Corizon lawsuit complaint. Plaintiff here filed the EEOC charge and lawsuit
against Corizon, not PAGNY, before PAGNY became her employer. See, Def. 56.1 at ¶¶ 33, 60,
Moreover, whereas Alston concerned a single entity’s corporate knowledge of the
plaintiff’s EEOC complaint, this case involves two distinct entities. See, Alston, 14 F. Supp.2d at
311. Without citing to any evidence or legal authority, Plaintiff claims that PAGNY had corporate
knowledge of the EEOC charge and the Corizon lawsuit because “almost all of the staff,
administrative or otherwise” under Corizon subsequently worked for PAGNY. Pl. Opp’n at 13.
Case 1:18-cv-03139-DLI-SJB Document 31 Filed 09/07/21 Page 16 of 19 PageID #: 570
Such a conclusory assertion is not sufficient to meet the de minimis burden of proving that
PAGNY, a separate legal and corporate entity from Corizon, had knowledge of the EEOC charge
or Corizon lawsuit. The record contains insufficient information as to whether any personnel other
than Plaintiff and Latunji transferred from Corizon to PAGNY. See, Def. 56.1 at ¶ 65. Once
Corizon’s contract ended at Rikers, Health + Hospitals employed the management staff, and
PAGNY employed the physicians. Id. For example, as part of the transition, Balilo became a
Health + Hospitals employee as the Associate Director. Id. at ¶ 88. Thus, there is no evidence for
a reasonable jury to find that Corizon’s corporate knowledge of Plaintiff’s protected activities was
passed on to PAGNY.
Plaintiff further argues that, “as the lawsuit against Corizon was settled, through counsel,
it cannot be said that they were unaware of the lawsuit.” Pl. Opp’n at 13. This argument is
meritless. Plaintiff fails to explain how her settlement with Corizon proves that PAGNY had
knowledge of the Corizon lawsuit. Consequently, the Court finds that Plaintiff has failed to
establish PAGNY had corporate knowledge of the protected activities merely by succeeding
Plaintiff also fails to establish that Latunji had knowledge of the protected activities. See,
Pl. Opp’n at 13-14. Latunji testified that he was not aware of the EEOC charge. See, Def. Mem.
at 5; See also, Def. 56.1 at ¶ 34. A jury can find retaliation even if Latunji denies direct knowledge
of Plaintiff's protected activities, “so long as the jury finds that the circumstances evidence
knowledge of the protected activities.” Gordon, 232 F.3d at 117. However, the record here lacks
any evidence to infer reasonably that Latunji was aware of the EEOC charge. The sole fact that
Plaintiff mentioned Latunji as a member of Corizon’s senior management staff in the EEOC charge
is inadequate to demonstrate that Latunji knew about the charge. See, EEOC Charge at 1. The
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EEOC charge was against Corizon, not Latunji. There is no evidence that Corizon had informed
or questioned Latunji about the EEOC charge. Additionally, as Plaintiff has conceded, Latunji
was not involved in the Physician Central Intake position selection process, which was the basis
for the EEOC charge, and she never discussed the charge with Latunji. See, Pl. Dep. at 50. Plaintiff
has not presented any case law, and the Court is unaware of any precedent, that makes mere
mention in an EEOC charge sufficient to establish the knowledge requirement in a retaliation
Moreover, there is insufficient evidence to infer that Latunji was aware of Plaintiff’s
rebuttal to her 2014 evaluation, in which she specifically mentioned that she received the “Below
Average” ratings in retaliation for filing the EEOC charge. See, Pl.’s Rebuttal to 2014 Corizon
Evaluation, Ex. M. to Blair Decl. Although Latunji completed the evaluation, Plaintiff addressed
the rebuttal to the Director of Human Resources at Corizon, not Latunji. Id.; See also, Corizon
Evaluations, Ex. G to Blair Decl., at 24-25. Despite completing discovery in this case, Plaintiff
has not provided any evidence that the Director of Human Resources shared the rebuttal with
Latunji or that it was a normal procedure for the Director to share rebuttals with supervisors who
completed the evaluations.
Furthermore, the Court finds that Plaintiff has not presented any evidence for the jury to
infer reasonably that Latunji knew about the Corizon lawsuit. While the complaint in the lawsuit
contained allegations involving Latunji’s conduct, he was not a named party. A review of the
docket in the Corizon case shows that little or no discovery was conducted in that case as the
parties settled early on. See, Bhatti v. Corizon Health, Inc., Case Dkt. No. 15-cv-05044 (LDH)
(CLP), Dkt. Entry Nos. 18-21. It is apparent that no depositions were conducted, and the record
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here lacks any evidence that Latunji was aware of the Corizon lawsuit by any other means. Thus,
no knowledge about the lawsuit can be imputed to PAGNY either.
Plaintiff contends that the Court must be skeptical of Latunji’s “self-serving testimony”
that he was unaware of the EEOC charge and Corizon lawsuit because he is not credible. Pl. Opp’n
at 13-14. Plaintiff bases this contention on several incidents where Latunji allegedly provided
contradictory testimony. Id. However, the Court finds that these allegations are not supported by
the record. Additionally, as discussed above, Plaintiff has not presented any facts to counter
Latunji’s testimony that he was not aware of the EEOC charge and Corizon lawsuit. The Court
declines to discount Latunji’s testimony based solely on Plaintiff’s unsupported characterization
of it as “self-serving.” Plaintiff further contends that Latunji knew about the EEOC charge and
Corizon lawsuit because the adverse employment actions closely followed the protected activities
in time. Id. at 14. This argument is flawed. In order for Plaintiff to successfully assert that Latunji
issued the “Below Average” rating and counseling memoranda as retaliation, Plaintiff first must
establish that he knew about Plaintiff’s protected activities. As discussed above, Plaintiff fails to
do so. In sum, the Court finds that Plaintiff has failed to satisfy the second element of her prima
facie case because she has not presented any evidence that either PAGNY or Latunji had
knowledge of Plaintiff’s protected activities. Therefore, Plaintiff’s Title VII retaliation claim must
be dismissed for failure to establish the prima facie case for retaliation.
NYSHRL and NYCHRL Claims
NYSHRL retaliations claims are analyzed under the same standard as Title VII claims.
See, McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). As such, Plaintiff’s
NYSHRL claim also requires her to establish the knowledge element as part of the prima facie
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case. Since the Court finds that Plaintiff has failed to demonstrate that Defendant had knowledge
of Plaintiff’s protected activities, her NYSHRL claim is dismissed.
A retaliation claim under NYCHRL is analyzed separately and independently from any
federal and state law claims. See, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
102, 109 (2d Cir. 2013). To prevail on a retaliation claim under the NYCHRL, a plaintiff must
show (1) “that she took an action opposing her employer’s discrimination” and (2) “that, as a result,
the employer engaged in conduct that was reasonably likely to deter a person from engaging in
such action.” E.E.O.C. v. Bloomberg L.P., 967 F. Supp.2d 816, 838 (S.D.N.Y. 2013) (quoting
Mihalik, 715 F.3d at 112) (internal quotation marks omitted). Although a retaliation claim under
NYCHRL is interpreted broadly, a plaintiff is not absolved from putting forth evidence tending to
show a causal connection between the plaintiff’s protected activity and alleged adverse
employment action. See, Id. at 862. Here, as discussed in Section I, Plaintiff has not put forth
sufficient evidence to show that Defendant had knowledge of her protected activities. As such,
she fails to satisfy the requisite element to establish the causal link between the protected activities
and the adverse employment actions. Therefore, Plaintiff’s retaliation claim under NYCHRL also
For the reasons set forth above, Defendant’s motion for summary judgment is granted in
its entirety and this action is dismissed with prejudice.
Dated: Brooklyn, New York
September 7, 2021
Dora L. Irizarry
United States District Judge
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