Rosamma v. Nassau University Medical Center
MEMORANDUM & ORDER granting 49 Motion for Reconsideration; For the foregoing reasons, Defendant's motion for reconsideration (Docket Entry 49) is GRANTED. The Clerk of the Court is directed to VACATE that portion of the Court's Memoran dum and Order dated March 31, 2016, (Docket Entry 47) that denied Defendant's motion for summary judgment. Defendant's motion for summary judgment (Docket Entry 34) is GRANTED in its entirety. The Clerk of the Court is further directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 2/24/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
NASSAU UNIVERSITY MEDICAL CENTER,
Thomas Ricotta, Esq.
White Ricotta & Marks, P.C.
86-12 37th Avenue
Jackson Heights, NY 11372
Brian Joseph Clark, Esq.
Nicholas Mario Reiter, Esq.
1270 Avenue of the Americas
New York, NY 10020
SEYBERT, District Judge:
Currently pending before the Court is defendant Nassau
University Medical Center’s (“NUMC” or “Defendant”) motion for
March 31, 2016. (Def.’s Mot., Docket Entry 49.) For the following
reasons, the Court GRANTS reconsideration, VACATES the portion of
its Memorandum and Order dated March 31, 2016, (Docket Entry 47),
that denied Defendant’s motion for summary judgment, and GRANTS
Defendant’s motion for summary judgment, (Docket Entry 34), in its
The Court assumes familiarity with the background of
this case, which is set forth in detail in its Memorandum and Order
dated March 31, 2016 (the “Summary Judgment Order”).
Order, Docket Entry 47.)
Briefly, in 2009, plaintiff Rosamma Saji
(“Plaintiff”), a woman of Indian national origin, was hired as a
per diem Registered Nurse IV (“RN-IV”) at NUMC.
(Summ. J. Order
at 2.) In 2010, Plaintiff was hired for the full-time RN-IV “Nurse
Manager i[n] Nursing Administration” position.
(Summ. J. Order at
In or about 2012, NUMC investigated allegations that
Plaintiff refused to provide her oncoming shift supervisor with a
Plaintiff’s leave bank as a disciplinary measure.
(Summ. J. Order
On March 2, 2012, NUMC eliminated the full-time RN-IV
position in connection with layoffs and terminated thirty-seven
employees, including Plaintiff.
(Summ. J. Order at 6-7.)
On March 28, 2012, Plaintiff’s former counsel sent a
selected her for layoff based on her national origin.
Order at 11.)
On April 16, 2012, NUMC published a job posting for
an RN-IV position.
(Summ. J. Order at 12.)
NUMC alleged that the
posting was accidental, it did not intend to hire an RN-IV in or
about April 2012, and it has yet to replace Plaintiff’s RN-IV Nurse
Manager in Nursing Administration position.
(Summ. J. Order at
NUMC also alleged that the only RN-IV hiring at NUMC
following Plaintiff’s layoff “was to fill an RN-IV vacancy as Nurse
Manager for the Operating Room, a specialized position for which
Plaintiff was not qualified.”
(Zink Aff., Docket Entry 37, ¶ 21.)
alleging violations of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the New York State Human Rights Law (“NYSHRL”)
with respect to national origin discrimination and retaliation.1
(Summ. J. Order at 1.)
Plaintiff’s retaliation claim was based on
NUMC’s refusal to restore vacation time and its failure to rehire
(Summ. J. Order at 31-32.)
Motion for Summary Judgment
On December 8, 2014, Defendant filed a motion for summary
(Def.’s Summ. J. Mot., Docket Entry 34.)
to Plaintiff’s retaliation claim, Defendant argued that Plaintiff
failed to satisfy her prima facie burden regarding causation, as
the April 2012 job posting was an error, Defendant did not hire a
replacement for Plaintiff’s prior position, and “[t]he sole hire-full time or otherwise--by NUMC in the RN-IV classification for
a position, Nurse Manager for the Operating Room Department, for
Plaintiff also asserted a claim under the New York State Civil
Service Law and Title VII and NYSHRL hostile work environment
claims; however, Plaintiff’s hostile work environment claims
were voluntarily dismissed with prejudice and Plaintiff
confirmed that she was not pursuing a separate clain under the
New York State Civil Service Law. (Summ. J. Order at 13.)
which Plaintiff was not qualified, did not take place until more
than six months after Plaintiff’s protected activity.”
Summ. J. Br., Docket Entry 35, at 23.)
With respect to pretext, Defendant asserted that “more
than six months elapsed between Plaintiff’s protected activity and
NUMC’s hiring of another RN-IV, thereby making it even less likely
needed to prevail on her retaliation claim arising from NUMC’s
refusal to re-hire her after her layoff.”
(Def.’s Summ. J. Br. at
NUMC also argued that Plaintiff failed to “raise an issue of
fact regarding the veracity of NUMC’s assertion that the RN-IV job
posting was unintentional.”
(Def.’s Summ. J. Reply Br., Docket
Entry 45, at 4.)
Summary Judgment Order
On March 31, 2016, the Court issued its Summary Judgment
The Court granted summary judgment as to Plaintiff’s
(Summ. J. Order at 29.)
With respect to
Plaintiff’s retaliation claim, the Court held that Defendant’s
refusal to restore Plaintiff’s leave time did not constitute an
adverse action but denied summary judgment as to Plaintiff’s
retaliation claim based on Defendant’s failure to rehire her.
(Summ. J. Order at 31-38.)
In denying summary judgment, the Court noted that the
parties did not dispute that Plaintiff engaged in a protected
activity by sending the March 28, 2012, letter and “[t]he parties
further agree[d] that NUMC’s decision not to rehire Plaintiff after
NUMC’s job posting is an adverse employment action.”
Order at 31.)
The Court noted that “NUMC claims that the April
2012 job posting was accidental and that the sole hire by NUMC for
an RN-IV position took place more than six months after Plaintiff’s
protected activity and was for a Nurse Manager for the Operating
Room Department, a position that Plaintiff was not qualified for.”
(Summ. J. Order at 35.)
However, the Court held that Plaintiff
stated a prima facie retaliation claim based on the very close
temporal proximity between Plaintiff’s March 28, 2012, letter and
Defendant’s April 2012 RN-IV job posting as well as the totality
of the circumstances, which included “the hiring of a full-time
RN-IV six months after Plaintiff’s protected activity.”
Order at 35-36.)
The Court further held that Defendant articulated a nonretaliatory explanation for its failure to rehire, namely, that it
did not fill Plaintiff’s prior position and did not hire anyone in
connection with the accidental April 2012 job posting, and the
only RN-IV position hired was the RN-IV Nurse Manager for the
Operating Room (the “Operating Room Position”), which Plaintiff
was not qualified for.
(Summ. J. Order at 37.)
ultimately found that Plaintiff met her burden of establishing
pretext in light of “the totality of the circumstances--in which
the temporal proximity between the protected activity and the
adverse action is such that a reasonable trier of fact could
Defendant, Plaintiff would have been rehired if not for her
complaint of discrimination.”
(Summ. J. Order at 37-38.)
Motion for Reconsideration
On April 28, 2016, Defendant moved for reconsideration
of the Summary Judgment Order, arguing that the Court erred in
denying summary judgment with respect to Plaintiff’s retaliation
reconsideration is warranted because: (1) Plaintiff did not apply
for the accidental April 2012 job posting, (Defs.’ Br., Docket
Entry 50, at 5-6); (2) Plaintiff failed to introduce admissible
intentionally posted, (Defs.’ Br. at 7); (3) the posting of the
April 2012 job posting did not constitute an adverse action,
(Defs.’ Br. at 7-9); (4) Plaintiff was not qualified for the
Operating Room Position, (Defs.’ Br. at 9-10); (5) Plaintiff did
not apply for the Operating Room Position, (Defs.’ Br. at 10-11);
sufficient to demonstrate pretext, (Defs.’ Br. at 11-13).
Plaintiff avers that Defendant has asserted new theories
that were not addressed in its underlying motion--namely, that its
failure to rehire Plaintiff was not an adverse employment action
and Plaintiff’s failure to apply for the April 2012 job posting
precludes her retaliation claim.
(Pl.’s Br., Docket Entry 52, at
Alternatively, Plaintiff argues that Defendant’s failure to
rehire was an adverse action, as Plaintiff expressed interest in
the April 2012 job posting through her attorney and that posting
was withdrawn before Plaintiff could formally apply.
Defendant’s argument that the April 2012 job posting was accidental
and the question of Defendant’s intent is an issue for trial.
(Pl.’s Br. at 10-11.) Finally, Plaintiff contends that Defendant’s
argument regarding the Operating Room Position is misplaced, as
Plaintiff does not dispute that she was not qualified for that
position and “Defendant only set forth this fact to show that this
was the only nursing position filled following the April 2012 job
(Pl.’s Br. at 11-12.)
Motions for reconsideration may be brought pursuant to
Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure and
Local Rule 6.3.
See Wilson v. Pessah, No. 05-CV-3143, 2007 WL
812999, at *2 (E.D.N.Y. Mar. 14, 2007).
The standard for granting
reconsideration is not an opportunity for a party to “offer the
same arguments that were previously submitted to the court” or
“advance new facts, issues or arguments not previously presented
to the Court[.]”
Richards v. N. Shore Long Island Jewish Health
Sys., No. 10-CV-4544, 2013 WL 950625, at *1 (E.D.N.Y. Mar. 12,
2013) (internal quotation marks and citation omitted).
“[a] motion for reconsideration should be granted only when the
defendant identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error
or prevent manifest injustice.”
Kolel Beth Yechiel of Tartikov,
Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)
(internal quotation marks and citation omitted).
As set forth more fully in the Summary Judgment Order,
Title VII and NYSHRL retaliation claims are analyzed pursuant to
the McDonnell Douglas burden shifting framework. Setelius v. Nat’l
Grid Elec. Servs. LLC, No. 11-CV-5528, 2014 WL 4773975, at *19
(E.D.N.Y. Sept. 24, 2014). First, Plaintiff must set forth a prima
facie retaliation claim by demonstrating: “(1) participation in a
protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.
2010) (internal quotation marks and citation omitted).
stage, the plaintiff’s burden is “de minimis” and the Court’s role
is “to determine only whether proffered admissible evidence would
be sufficient to permit a rational finder of fact to infer a
Id. (internal quotation marks and citation
a prima facie case,
presumption of retaliation arises” and the defendant must set forth
a “legitimate, non-retaliatory reason for the adverse employment
Id. (internal quotation marks and citation omitted). If
the defendant meets that burden, “the presumption of retaliation
dissipates, and the employee must show that retaliation was the
‘but-for’ cause of the challenged employment action.”
N. Shore Long Island Jewish Health Sys., No. 01-CV-0170, 2013 WL
5348313, at *8 (E.D.N.Y. Sept. 23, 2013) (quoting Univ. of Texas
Sw. Med. Ctr. v. Nassar, --- U.S. ----, 133 S. Ct. 2517, 2533, 186
L. Ed. 2d 503 (2013)).2
However, “‘but-for’ causation does not
require proof that retaliation was the only cause of the employer’s
action, but only that the adverse action would not have occurred
in the absence of the retaliatory motive.”
Zann Kwan v. Andalex
Group LLC, 737 F.3d 834, 846 (2d Cir. 2013).
The plaintiff may
While it is unclear whether the “but-for” causation standard
set forth in Nassar applies to NYSHRL claims, this Court has
“continue[d] to interpret the standard for retaliation under the
NYSHRL in a manner consistent with Title VII jurisprudence as
clarified by the Supreme Court in Nassar.” Prophete-Camille v.
Stericycle, Inc., No. 14-CV-7268, 2017 WL 570769, at *10, n.10
(E.D.N.Y. Feb. 13, 2017) (internal quotation marks and citation
employer’s proffered legitimate, nonretaliatory reasons for its
The Court concurs with Defendant that it erred in holding
(Defs.’ Br. at 11-13.)
As set forth above, Plaintiff’s
protected activity took place on March 28, 2012, and her alleged
adverse employment action was Defendant’s failure to rehire her in
connection with the April 16, 2012, job posting that Defendant
expressed interest in the position.3
(Summ. J. Order at 11-12,
31; see also Pl.’s Summ. J. Br., Docket Entry 44, at 13 (arguing
that the jury must determine whether “given the timing and sequence
of events, [ ] the job posting was done in error and only identified
and removed after Plaintiff sought the position, or if this is an
after the fact justification used by Defendant for refusing to
fill the position with Plaintiff, due to her prior complaints of
discrimination”).) It is undisputed that Defendant did not replace
Plaintiff’s position and Defendant alleges that the only full-time
In light of the Court’s determination that summary judgment
should be granted based on Plaintiff’s failure to demonstrate
pretext, the Court need not address Defendant’s argument that
the April 2012 job posting was not an adverse action, (Def.’s
Br. at 7-9), or its remaining arguments.
Operating Room Position that Plaintiff was not qualified for.
(Summ. J. Order at 12, 35-36.)
Indeed, Plaintiff expressly states
that she does not contend that she should have been hired for the
Operating Room Position and “Defendant only set forth this fact to
show that this was the only nursing position filled following the
April 2012 posting.”
(Pl.’s Br. at 12.)
Upon reconsideration, the Court finds that it improperly
accorded weight to the fact that Defendant filled the Operating
Room Position in October 2012 and failed to appropriately consider
Plaintiff’s lack of qualifications for that job.
essentially neutral fact is set aside, Plaintiff’s sole support
for the notion that Defendant’s explanation was pretextual is the
close temporal proximity between the protected activity and the
April 2012 job posting.
While temporal proximity may support the
plaintiff’s prima facie showing on a Title VII claim, “[t]emporal
proximity alone is insufficient to defeat summary judgment at the
Zann Kwan, 737 F.3d at 845, 847.
In the absence
Plaintiff in connection with the April 2012 job posting, the Court
finds that Plaintiff failed to raise issues of fact regarding
pretext, and a reasonable jury could not find that “but-for”
Defendant’s retaliation, Plaintiff would have been rehired.
The Court is not persuaded by Plaintiff’s argument that
she was not required to demonstrate that Defendant intentionally
posted the April 2012 job posting, as Defendant’s intent is a trial
credibility and inconsistencies in the opposing parties’ summary
judgment papers and proofs, can only be resolved at trial.” (Pl.’s
Br. at 10-11.) As set forth above, at the pretext stage, Plaintiff
must adduce evidence in addition to temporal proximity in order to
satisfy her burden.
Cf. Zann Kwan, 737 F.3d at 847 (noting that
at the pretext stage, “a plaintiff may rely on evidence comprising
her prima facie case, including temporal proximity, together with
other evidence such as inconsistent employer explanations, to
defeat summary judgment . . . .”).
Plaintiff failed to raise any
issues of fact as to whether the April 2012 job was intentionally
posted or Defendant’s explanation for the withdrawal of the job
posting was otherwise inconsistent or incredible.
conclusory assertion that intent and credibility are trial issues
does not suffice.
Accordingly, Defendant’s motion for reconsideration is
GRANTED, the Summary Judgment Order is VACATED, and Defendant’s
motion for summary judgment is GRANTED in its entirety.
reconsideration (Docket Entry 49) is GRANTED.
The Clerk of the
Court is directed to VACATE that portion of the Court’s Memorandum
and Order dated March 31, 2016, (Docket Entry 47) that denied
Defendant’s motion for summary judgment.
Defendant’s motion for
summary judgment (Docket Entry 34) is GRANTED in its entirety.
The Clerk of the Court is further directed to enter
judgment accordingly and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
24 , 2017
Central Islip, New York
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