Baby et al v. Nassau Healthcare Corporation et al
ORDER ON REPORT AND RECOMMENDATIONS: After considering the parties' objections and the R&R, the Court grants defendants' motion for summary judgment on the claims of both JB and WB for the reasons above. The Clerk of Court is respectfully directed to enter judgment accordingly and to close this case. So Ordered by Judge Joan M. Azrack on 8/1/2017. (Ortiz, Grisel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WILLIAM BABY and JOSE BABY,
For Online Publication Only
14-CV-3297 (JMA) (GRB)
8/1/2017 9:38 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
NASSAU HEALTHCARE CORPORATION
and MICHAEL GONZALEZ,
Michael G. O’Neill
Office of Michael G. O’Neill
30 Vesey Street, Suite 301
New York, NY 10007
Attorney for Plaintiffs
Brian J. Clark
Emily M. Tortora
1270 Avenue of the Americas, 24th Floor
New York, New York 10020
Attorneys for Defendants
AZRACK, United States District Judge:
Plaintiffs Jose Baby (“JB”) and William Baby (“WB”), who were both born in India and
have a common South Asian ethnicity, allege that defendants Nassau Health Care Corporation
(“NHCC”) and Michael Gonzalez discriminated against them based on their race/ethnicity and
national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
Section 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. Section 1981 (“Section 1981”); and
42 U.S.C. Section 1983 (“Section 1983”). The Court referred defendants’ motion for summary
judgment to the Honorable Gary R. Brown, who issued a report and recommendation (the “R&R”)
recommending that defendants’ motion be granted on JB’s claims, but denied on WB’s claims. JB
and the defendants filed timely objections to the R&R. For the reasons stated below, the Court
concludes that defendants are entitled to summary judgment on the claims of both JB and WB.
Familiarity with the R&R, the parties’ objections, and underlying motion papers is
A. Standard for Reviewing a Magistrate Judge’s Report and Recommendation
In reviewing a magistrate judge’s report and recommendation, the court must “make a de
novo determination of those portions of the report or . . . recommendations to which objection[s]
[are] made.” 28 U.S.C. § 636(b)(1)(C); see also Brown v. Ebert, No. 05-CV-5579, 2006 WL
3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Those portions of a report and recommendation to which there are no specific reasoned objection
are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008).
The Court has reviewed the portions of the R&R, to which no party objected, for clear
error. Finding no such error, the Court adopts those portions of the R&R as the decision of the
Court. The Court has considered the portions of the R&R to which JB and the defendants objected
de novo. The Court’s de novo review of these objections is discussed in more detail below.
B. WB’s Claims
The R&R recommended that defendants’ motion for summary judgment be denied with
respect to WB’s claims. Defendants objected to this recommendation. WB did not submit a
response to defendants’ objection.
The critical question is whether, at the third step of the McDonnell Douglas analysis, WB
offered sufficient evidence for a reasonable jury to infer that Gonzales’s purported rationale for
terminating WB was a pretext for discrimination.
For the purposes of this Order, the Court assumes that both JB and WB have established
a prima facie case. Once a plaintiff has established a prima facie case, the burden then shifts to
the employer to articulate a legitimate, non-discriminatory reason for its action.
“The plaintiff then has the opportunity to prove ‘by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.’” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.
2004) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). “[T]he
ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prod., Inc.,
530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253). “[A] reason cannot be proved to be
a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason” for the employer’s decision. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993).
A plaintiff “may attempt to establish that he was the victim of intentional discrimination
‘by showing that the employer’s proffered explanation is unworthy of credence.’” Reeves, 530
U.S. at 143 (quoting Burdine, 450 U.S. at 256); see also Taylor v. Family Residences and Essential
Enters., Inc., No. 03-CV-6122, 2008 WL 268801, at *8 (E.D.N.Y. Jan. 30, 2008) (“[A plaintiff]
may show pretext by demonstrating such weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted nondiscriminatory reasons.” (citations and internal quotation
marks omitted)). However, “[it] is well settled that the mere fact that an employee disagrees with
an employer’s evaluation of that employee’s misconduct or deficient performance, or even has
evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself,
that the employer’s proffered reasons are a pretext for termination.” Grant v. Roche Diagnostics
Corp., No. 09-CV-1540, 2011 WL 3040913, at *11 (E.D.N.Y. July 20, 2011) (quoting Kalra v.
HSBC Bank USA, N.A., 567 F. Supp. 2d 385, 397 (E.D.N.Y. 2008)).
“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the
[employer’s] explanation that the employer is dissembling to cover up a discriminatory purpose.”
Reeves, 530 U.S. at 147. Where a plaintiff offers evidence of pretext, courts must take a “caseby-case approach” and examine “the entire record to determine whether the plaintiff could satisfy
his ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff.’” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves,
530 U.S. at 143). Whether summary judgment is appropriate depends on “a number of factors,”
including “the strength of the plaintiff’s prima facie case, the probative value of the proof that the
employer’s explanation is false, and any other evidence that supports the employer’s case and that
properly may be considered” on a motion for summary judgment. Reeves, 530 U.S. at 148–49.
As the Court in Reeves noted, even if “the plaintiff has established a prima facie case and set forth
sufficient evidence to reject the defendant’s explanation,” judgment as a matter of law may still be
appropriate, where, for instance, “the record conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether
the employer’s reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” Id. at 148.
WB must ultimately prove that his race, ethnicity, and/or national origin was a motivating
factor behind his termination. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir.
The Court concludes that WB cannot show that the reasons proffered by Gonzales for
WB’s termination are pretextual. Moreover, even assuming arguendo, that there is a factual
dispute about pretext, no reasonable jury could conclude that this was a pretext for discrimination.
2. WB Cannot Show Pretext
In reciting the relevant factual background, the R&R explained that:
Gonzalez became W. Baby’s supervisor shortly after W. Baby started at NHCC.
Because their shifts did not wholly overlap, Gonzalez only infrequently observed
W. Baby’s performance. As a result, he often relied on direct observations of
Stephaney Lewis, the [Central Sterile Department (“CSD”)] employee who had the
most seniority on W. Baby’s shift. Gonzalez testified that in their communications,
Lewis alerted Gonzalez to what she believed to be W. Baby’s performance
deficiencies, including his failure “to prioritize the trays according to the needs of
the OR.” On one occasion, Gonzalez instructed Lewis to assign W. Baby to “prep
and pack” trays, with the intent that he would extend his shift by two to three hours
to observe W. Baby perform the task. According to Gonzalez, his observation
confirmed Lewis’s account. W. Baby testified that at no point did Lewis serve in a
supervisory role over him or direct him to perform any particular assignment.
(R&R at 11–12 (citations omitted).) The R&R went on to conclude that WB’s testimony on these
issues contradicted Gonzales’s account and, thus, raised a factual dispute concerning pretext. The
R&R also relied on purported discrepancies between Gonzales’s proffered rationale for
terminating WB and a “Probation Evaluation” form that Gonzales filled out at the time of WB’s
On WB’s “Probation Evaluation” form, Gonzales checked off boxes indicating that WB’s
“Job Knowledge” and “Volume of Work” were “Unsatisfactory.” (Clark Decl. Ex. 8.) In the small
comments section on this form, Gonzales hand-wrote:
It is evident through direct observation that [WB] has deficiencies relating to some
of the serious tasks (processing of clinic and ancillary departments instrumentation,
case cart preparation and operating room trays) that Central Supply is responsible
for. This deficiency has led to a lack of productivity from [WB], which has the
potential to compromise patient care. It is for these reasons that [WB] has not
passed his probation.
As explained below, the Court disagrees with the R&R’s pretext analysis. In addressing
pretext, the R&R stated:
For example, the Probation Evaluation completed by Gonzalez states that the
evaluation had been based on “direct observation” of W. Baby’s performance. Yet,
as W. Baby notes, “Gonzalez testified that the only source for his conclusion that
[W. Baby]’s job knowledge was unsatisfactory was from the reports of . . . Lewis.
There is no mention of Lewis’s input in the evaluation form.”
(R&R at 34 (citation omitted).)
While it is true that the Probation Evaluation does not explicitly mention Lewis’s input, a
reasonable jury could not infer pretext from that omission. The Probation Evaluation form
provides a mere three lines for the supervisor to provide written comments. Gonzales squeezed a
substantial amount of information in this limited space, and no reasonable jury could, after
reviewing this document, find that Gonzales’s failure to mention Lewis’s name and her reports to
him on this form is suggestive of pretext. Moreover, as defendants correctly point out, the
Probation Evaluation form does not state that the “direct observation” at issue was performed
solely by Gonzales—the term “direct observation” is broad enough to include the direct
observations of both Gonzales and Lewis. Also, even assuming that “direct observation” is limited
to Gonzales’s own observations of WB, the Evaluation form was not, on its face, inaccurate—
Gonzales did directly observe WB on at least one occasion and testified that he based his decision
to terminate WB on both his observation as well as Lewis’s reports.
Furthermore, contrary to WB’s argument, the fact that “Gonzalez testified that the only
source for his conclusion that [WB’s] job on knowledge was unsatisfactory was from the reports
of . . . . Lewis” is not probative of pretext. The Probation Evaluation form does not state that
Gonzales’s conclusion that WB’s job knowledge was deficient was based on Gonzales’s own
observations. The Probation Evaluation contains one reference to “Job Knowledge”—a field
where Gonzales simply checked “Unsatisfactory.” Although the brief comments on the Probation
Evaluation refer to “direct observation,” the criticisms in this section all appear to concern WB’s
deficient “Volume of Work” and productivity—those comments do not appear to address WB’s
deficient job knowledge. WB’s argument attempts to read too much into these brief comments,
none of which explicitly state (or even imply) that WB’s deficient job knowledge was based on
Gonzales’s own direct observation.
In addressing pretext, the R&R also stressed:
Gonzalez contends that Lewis would report to Gonzalez about W. Baby’s
performance, and that on one occasion Gonzalez instructed Lewis to assign W.
Baby to “prep and pack” so that Gonzalez could observe him. W. Baby, on the other
hand, contends that at no point did Lewis supervise him or assign him work.
(R&R at 34.)
Although WB’s declaration states that Lewis never supervised his work, instructed him, or
assigned him work, WB’s deposition testimony on this point was much more equivocal. At his
deposition, WB initially denied that Lewis instructed him “as to what work to be done or how to
do” his work. (WB Dep. 29.) However, WB went to explain that:
Nobody ever gave me in-service or how to do the work, because when I was there,
everybody just like me. . . . but if a coworker need help to do a tray they will ask,
“William, can you do this one? Can you do this, do that? We need a tray to give it
upstairs.” Yes, that kind of commandment, I took it. It’s not only from [Lewis].
Other people also tell me that, “Okay, we need that – Can you do that or can you
do this? Can you take tray?” It was like group work, like a joint, and like a
This equivocal testimony—in which WB concedes that other employees, including Lewis,
would, at times, ask WB to work on certain trays or perform certain tasks—is insufficient to show
that Gonzales lied when he testified that: (1) Lewis reported deficiencies in WB’s work; and (2)
he told Lewis to assign WB to “prep and pack” one day so that he could observe WB’s
performance. (See Gonzales Decl. ¶¶ 13–14.)
Two additional points further illustrate why plaintiff has not raised a factual issue
concerning pretext. First, plaintiff has not even deposed Lewis.1 Second, this is not a case where
Gonzales, the alleged discriminator, claims that that he observed WB engage in certain conduct
and WB simply denies Gonzales’s version of events. Instead, WB attempts to use his equivocal
deposition testimony to try to show—based on a chain of speculative inferences—that Lewis never
reported the information that Gonzales claims to have received from her. 2 Even assuming
arguendo that a jury could conclude from WB’s testimony that Lewis’s account of her interactions
with WB were not accurate (or even fabricated by her), that alone is insufficient to establish that
Gonzales’s proffered rationale for terminating WB was pretextual. Even if Lewis fabricated her
As discussed infra, plaintiff also failed to depose Theatrice Coats, a relevant witness concerning JB’s claims. In
their summary judgment briefing, plaintiffs argued that, during discovery, defendants failed to identify Lewis and
Coats as witnesses who had knowledge of the plaintiffs’ performance. Plaintiffs, however, could have still sought to
depose these witnesses after deposing Gonzales. (See R&R at 11 n.10.)
The R&R analogized the instant case to this Court’s decision in Graham v. City of New York, No. 05-CV-5428,
2009 WL 909622, at *1 (E.D.N.Y. Mar. 10, 2009) (report and recommendation) (Azrack, M.J.), adopted as modified,
2009 WL 909620 (E.D.N.Y. Mar. 31, 2009). Graham, however, is distinguishable. In Graham, the plaintiff’s
supervisor insisted, inter alia, that the plaintiff failed to comply with certain instructions, but the plaintiff explicitly
denied that any such instructions were given. Graham, 2009 WL 909620, at *1. The decision in Graham also noted
that the result may have been different if the complaints about the plaintiff had come from “a third party,” rather than
from the alleged discriminator. Id. Here, Lewis, who is not alleged to have harbored any discriminatory intent, is a
observations of WB, WB has never argued that Lewis discriminated against him and there is no
evidence indicating that Gonzales, who testified that he relied on Lewis’s reports, knew that she
had fabricated those reports.
Finally, WB suggests, in his 56.1 statement, that Gonzales lied when he testified that Lewis
acted as the “lead worker” on WB’s shift. This argument is flawed and does not suggest pretext.
According to Gonzales, technicians in CSD receive guidance and instruction from the “lead
workers” on a shift, who have the most seniority. (Gonzales Decl. ¶ 9; Gonzales Dep. 46–47.)
Gonzales testified that Lewis, who had worked at NHCC for 20 years, was the “lead worker” on
WB’s shift. (Gonzales Dep. 47; Gonzales Decl. ¶ 9.) In his affidavit and deposition testimony,
WB asserted that Lewis was not his supervisor and, from what he “knew, she was just a regular
worker.” (WB Decl. ¶ 6; WB Dep. 29.) WB, however, never explicitly addressed the concept of
a “lead worker” in his declaration or deposition testimony. Although WB’s 56.1 statement states
that the “role or position of lead worker did not exist at NHCC,” the record contains no support
for this assertion. (Pls.’ 56.1 Statement at 11.) And, even if there was, such a factual dispute
would not be sufficient to establish pretext in light of the other evidence addressed above.
3. WB Cannot Show Discrimination
Even assuming arguendo that WB could raise a factual dispute on the issue of pretext, WB
would still have to offer sufficient evidence that would permit a jury to infer that Gonzales’s
alleged reasons for the termination were a pretext for discrimination. As explained below, no
reasonable jury could infer, from the instant record, that Gonzales’s decision to terminate WB was
motivated by WB’s race, ethnicity, or national origin.
In finding that WB offered sufficient evidence to survive summary judgment, the R&R
relied on: (1) a purported factual dispute over Gonzales’s response to WB’s complaint that a co-
worker made derogatory comments about him; and (2) the declaration of Togby Thomas, another
Indian employee under Gonzales, who claimed that Gonzales gave non-Indians preferential
As explained below, none of these points, even when considered collectively and in light
of the other evidence cited by WB, are sufficient to raise an inference that Gonzales’s proffered
reasons for WB’s termination were a pretext for discrimination.
i. WB’s Complaint to Gonzales about a Co-Worker’s Discriminatory Comments
According to WB, Anthony Shaw, one of WB’s co-workers, called WB a “Paki,”
“Mohammed,” and a “Muslim spy.” (WB Dep. 36.) At some point, WB orally complained to
Gonzales about Shaw’s comments. (Id.) According to WB, Gonzales did not take any action in
response to WB’s complaint and told him “I can’t close somebody’s mouth” and “You got to deal
with it. You need a little more . . . harder skin.” (Id. at 37.)
Gonzales testified to a different version of these events, claiming that WB merely told him
that Shaw had asked WB whether he was Muslim and had once called him “Ms. McNamara’s
spy.” (Gonzales Decl. ¶ 15.) Gonzales insists that he then held a meeting with both Shaw and
WB in which Shaw apologized to WB and shook his hand. (Id. ¶ 16.)
At his deposition, WB testified he did not recall a meeting with Gonzales and Shaw, and
conceded that such a meeting “could” have happened. (WB Dep. 38, 40–41.)
For purposes of summary judgment, the Court must, of course, view the evidence in the
light most favorable to WB. Generally, this would require the Court to accept WB’s version of
events. However, as defendants stress, WB does not squarely dispute Gonzales’s account that a
meeting occurred between WB, Gonzales, and Shaw. Because WB did not squarely refute the
existence of this meeting, he has not raised a genuine factual dispute on this issue. In light of
Gonzales’s testimony that this meeting did, in fact, occur, a reasonable jury could not find
otherwise based on WB’s testimony. Thus, contrary to the R&R’s recommendation, there is not a
genuine and material factual “dispute as to management’s reaction to the purported discriminatory
comments” that “preclude summary judgment.” (R&R at 35–36.)
Moreover, even assuming arguendo that WB’s deposition testimony is sufficient for a jury
to conclude that Gonzales never held a meeting with WB and Shaw to address Shaw’s comments,
Gonzales’s failure to properly address Shaw’s discriminatory comments does not suggest that
Gonzales harbored discriminatory intent.
Numerous courts have concluded that a supervisor’s failure to respond adequately to a
plaintiff’s complaint about derogatory comments made by a co-worker is insufficient to show that
the supervisor himself harbored discriminatory intent. See Swenson v. Schwan’s Consumer
Brands N. Am., Inc., 500 Fed. App’x 343, 346 (5th Cir. 2012) (“[Plaintiff] argues that [his
supervisor]’s failure to respond to the age-related comments [made by a co-worker with no
influence over the discharge determination] indicates [the supervisor’s] age-related bias.
However, the law focuses on the speaker’s authority, not that of those who decline to intervene.”);
Berry v. Empire Homes Servs. LLC, No. 06-CV-2354, 2010 WL 1037948, at *8 (E.D.N.Y. Mar.
18, 2010) (“[P]laintiff merely claims that [his superiors] never addressed [a co-worker’s] comment
or disciplined him and thereby tacitly approved of his behavior. . . . This alleged failure to
discipline [the co-worker] does not create an inference of intentional discrimination, and plaintiff
offers no authority suggesting otherwise.”); Cooperman v. Solil Mgmt., Inc., No. 98-CV-8099,
2000 WL 16929, at *5 & 5 n.4 (S.D.N.Y. Jan. 11, 2000) (“Plaintiff does not argue that [his
superior] made any discriminatory comment, but only that she failed to defend him. We cannot
fathom, and have found no authority to suggest, that an employer’s failure to stand up for its
employee in the midst of tense negotiations [during which a union representative made an agebased comment] is itself evidence of discrimination.”); cf. Blundell v. Nihon Kohden Am., No.
15-CV-1503, 2017 WL 318842, at *7 (N.D.N.Y. Jan. 23, 2017) (rejecting plaintiff’s argument that
an inference of age discrimination may be drawn based on defendant’s failure to act in response
to comments by co-workers and explaining that this argument was “a misplaced attempt to
repackage the inverse of an employer’s affirmative defense to hostile-work-environment claims
into factual allegations sufficient to state a discriminatory discharge claim”); Bone v. G4S Youth
Servs., LLC, 686 F.3d 948, 954 (8th Cir. 2012) (holding that one superior’s reaction, and another
superior’s lack of reaction, to a comment made by a third employee did not constitute “direct
evidence of a discriminatory motive” for plaintiff’s firing).
Furthermore, no reasonable jury could infer discriminatory intent from Gonzales’s
statements that “I can’t close somebody’s mouth” and “You got to deal with it. You need a little
more . . . harder skin.” Nothing in these statements suggests that Gonzales was endorsing or
adopting Shaw’s derogatory comments.
ii. Togby Thomas’s Declaration
Togby Thomas was another employee of Indian national origin who worked in the CSD
under Gonzales. Thomas resigned from NHCC in January 2012. WB relies on a declaration from
Thomas for two points. First, Thomas maintains that Gonzales gave preferential treatment to nonIndians. Second, Thomas asserts that Gonzales forced him to resign by changing his work
schedule. Gonzales disputes Thomas’s account of the circumstances surrounding his resignation.
WB suggests that—given this factual dispute concerning Thomas’s resignation—a jury could infer
that WB’s termination was discriminatory. Both WB and JB also argued that the fact that all three
Indian employees in the thirteen-person CSD were either terminated or forced out within months
of Gonzales joining that department is evidence of discrimination.
In concluding that WB’s claims should survive summary judgment, the R&R reasoned that
“Thomas’s claim of Gonzalez’s preferential treatment of non-Indians also strongly supports W.
Baby’s claim that defendants’ offered reasons for his termination were pretextual.”3 (R&R at 36.)
The Court disagrees on this point. Thomas’s affidavit asserts in conclusory fashion that
Gonzales would treat Indian employees “differently” than other employees and treated “some
employees more favorably.” (Thomas Decl. ¶ 6.) These conclusory assertions, standing alone,
have no probative value on the question of pretext or discrimination. Thomas does not provide
specifics about any incidents in which particular non-Indian employees received preferential
Thomas’s declaration does provide some details concerning two incidents—a reprimand
that Gonzales allegedly gave him and Gonzales’s actions that led to Thomas’s resignation. As
explained below, neither of these incidents are probative of discrimination and they are certainly
insufficient to show that WB’s termination was discriminatory.
With respect to the alleged reprimand, Thomas maintains that on one occasion, Gonzales
“reprimanded” him when Thomas left for his break on time and returned from his break on time.
(Id.) Thomas asserts that there was no reason for Gonzales to reprimand him because he had
followed the hospital’s policies “by leaving and returning from my breaks.” (Id.) Thomas,
however, does not actually identify any non-Indian employees who engaged in similar conduct
The R&R did not explicitly address Thomas’s resignation in the context of WB’s claim. However, in recommending
that summary judgment be granted on JB’s claims, the R&R concluded that the fact that all three Indian employees in
the CSD were forced out was insufficient for a jury to infer that Gonzales discriminated against JB. The R&R reasoned
that “a sample size of thirteen employees is too small to draw any inference of discrimination.” (R&R at 31.) JB
objects to the R&R’s analysis of this evidence. As explained infra, this evidence is insufficient to stave off summary
judgment for either plaintiff.
and were treated differently by Gonzales. This single incident—which, in any event, was minor
and involved no adverse consequences—is insufficient to suggest that Gonzales’s harbored
Thomas’s declaration also addresses the events that led to his resignation from CSD.
Thomas and Gonzales provide conflicting accounts—a jury could find that Gonzales placed
Thomas in a situation where he was forced to resign and that Gonzales’s contrary explanation for
Thomas’s resignation was a fabrication. Even accepting Thomas’s account of the incident,
however, no reasonable fact finder could conclude that WB’s termination was discriminatory.
In the end, WB is left to rely on: (1) his weak evidence of pretext; (2) the disputed
circumstances of Thomas’s resignation; and (3) the fact that all three Indian employees in the 13person CSD were terminated or forced out by Gonzales within a few months. This evidence,
however, is insufficient to show that WB’s termination was discriminatory. The mere fact that all
three Indian employees were terminated or forced to resign has limited probative value concerning
Gonzales’s discriminatory intent. Moreover, the probative value of that bare fact is further
undermined because the record here reveals the specific circumstances under which JB was
terminated, and, as explained below in the discussion of JB’s claims, the Court agrees with the
R&R that no reasonable jury could find that defendants’ rationale for terminating JB was
pretextual. In light of that conclusion, the mere fact that all three Indian employees were
terminated or forced to resign has little, if any, probative value because no reasonable jury could
WB’s 56.1 statement asserts that Gonzales initially attempted to take “leave entitlements” away from Thomas as
punishment for this incident. (Pls.’ 56.1 at 39.) The record, however, does not support this assertion. WB cites to a
disciplinary document that indicates that WB was reprimanded in October 2011 because two boxes he prepared for a
doctor did not have laryngoscope handles in them. (Federici Decl. Ex. O.) This disciplinary document has nothing
to do with a “break.” Either this disciplinary document was issued for a completely different incident or, more likely,
this document shows that Thomas’s claim that he was reprimanded concerning a break is simply incorrect. In either
event, this document, which WB himself cites, does not help his cause.
find that the firing of JB—one of the three Indian employees at issue—was discriminatory.5 Thus,
WB is left to rely on his weak evidence of pretext and the circumstances surrounding Thomas’s
forced resignation. That evidence is simply insufficient for a reasonable jury to conclude that
WB’s termination was discriminatory.
C. JB’s Claims
JB objects to the R&R’s recommendation that defendants are entitled to summary
judgment on his claims. Before addressing the substance of JB’s arguments, it must be stressed
that JB’s objection fails to provide any citations to the record or the parties’ 56.1 statements. This
deficiency alone is reason for this Court to deny JB’s objection. In any event, the Court has also
considered the substance of JB’s objections and rejects his arguments on the merits, largely for the
reasons stated in the R&R. The Court will briefly address some of JB’s arguments that warrant
In addressing JB’s claim of pretext, the R&R explained that
the manufacturer guidelines [for the STERRAD machine] explicitly state that
flexible endoscopes may be used on the flex cycle, and J. Baby admitted that he
had run flexible larngoscopes on the flex cycle in the past. And this motion is not
a proper forum in which to debate the necessity of using the STERRAD machine
during the sterilization process. J. Baby’s own exhibits make clear that the
STERRAD machine had been used in the sterilization process since at least 2009,
two years before Gonzalez was hired, thereby undermining any claim that use of
the STERRAD was the product of Gonzalez’s purported discriminatory animus.
Thus, even assuming CSD’s use of the STERRAD machine was medically
superfluous as J. Baby contends, an unlawful animus cannot reasonably be inferred.
(R&R at 24 (citations omitted).)
In his objection, JB asserts that the R&R misunderstood his argument, contending that
Jose was terminated because Gonzalez falsely advised Hospital’s management that
running the scope through the regular cycle ran the risk that the scope was
The probative value of the fact all three Indian employees were terminated or forced out is further undercut by
evidence showing that, between 2012 and 2015, Gonzales also played a role in the termination of six non-Indian
employees from CSD.
improperly sterilized, putting a patient’s health in jeopardy. Jose’s argument is that
Gonzalez knew that the scope was completely sterile, but lied to management in
order to cause Jose to be terminated.
(JB Obj. at 3–4.)
This objection is meritless. A reasonable jury could not find, based on the instant record,
that Gonzales knew—contrary to his statements to management—that the scope was, in fact,
properly sterilized and posed no risk to patient safety after it had been run in the STERRAD
machine on the standard, rather than the flex, cycle. As an initial matter, the fact that Keisha LouMcKenzie, the other employee involved in this incident, was also disciplined shows that Gonzales
in fact believed that the scope was improperly sterilized and posed a safety risk.6 (See Gonzales
Dep. 198; Federici Decl. Ex. M at NHCC PBD 000168 (email in which Gonzales states that both
JB and Lou-McKenzie “failed to pick up on” the sterilization error).)
Moreover, all of the evidence in the record shows that Gonzales had ample reason to
believe that the flexible laryngoscope was not properly sterilized. The manufacturer’s guidelines
for the STERRAD machine and the hospital’s own internal documents only discuss the
sterilization of flexible endoscopes on the flex cycle. (See R&R at 9 & 9 n.9; Federici Decl. Exs.
H, I, R.) Accordingly, Gonzales had ample reason to believe that running a flexible scope on the
standard cycle would not have resulted in proper sterilization—no document in the record
affirmatively states that flexible laryngoscopes (or other flexible endoscopes) can be run on the
JB also argues that he can show pretext because, according to JB, running the flexible
laryngoscope through the STERRAD machine was completely superfluous and the scope would
have been safe for patient use even if it had never been run through the STERRAD sterilization
JB argues that the lesser discipline meeted out to Lou-McKenzie is evidence of discrimination. The Court, however,
agrees with the R&R that Lou-McKenzie was not similarly situated to plaintiff.
machine. Specifically, JB contends that: (1) such scopes are classified as semi-critical items,
which only require high-level disinfection (rather than sterilization); and (2) at NHCC, such scopes
are soaked in a high-level disinfectant prior to being run through the STERRAD machine. Thus,
JB contends that Gonzales lied when he asserted that the laryngoscope at issue posed a risk to
patient safety. Given the hospital’s long-standing practice to both sterilize and disinfect these
scopes, Gonzales’s failure to conclude (and explain to his superiors) that sterilization in the
STERRAD machine was completely unnecessary does not suggest pretext.7
In light of all of the above, a reasonable jury could not conclude that Gonzales knew that
the scope was properly sterilized and posed no safety risk. As the R&R concluded, even assuming
arguendo that a jury could conclude that Gonzales was incorrect in his assessment, that would be
insufficient, based on the instant record, to establish pretext. R&R at 24; Grant, 2011 WL
3040913, at *11 (“[It] is well settled that the mere fact that an employee disagrees with an
employer’s evaluation of that employee’s misconduct or deficient performance, or even has
evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself,
that the employer’s proffered reasons are a pretext for termination”).
In support of this argument, JB relies on his own declaration, which states that a laryngoscope is a “semi-critical
device” and that “applicable standards do not require sterilization but just that the instrument is highly disinfected.”
(JB Decl. ¶ 14.) JB’s opposition brief also cites to a document from the Centers for Disease Control and Prevention
(“CDC”) that appears to classify flexible laryngoscopes as semi-critical items that only require high-level disinfection.
(Pls.’ Opp. Br. at 17.) This 161-page CDC document (for which JB fails to provide any pin citations) recommends
hospitals “[p]rovide, at a minimum, high-level disinfection for semicritical patient-care equipment (e.g.,
gastrointestinal endoscopes, endotracheal tubes, anesthesia breathing circuits, and respiratory therapy
equipment) that touches either mucous membranes or nonintact skin”; and
“endoscopes and accessories that contact mucous membranes [be processed] as semicritical items, and use
at least high-level disinfection after use on each patient.”
(See Guideline for Disinfection and Sterilization in Healthcare Facilities, 2008, at 84, 87 (emphasis added), available
at https://www.cdc.gov/infectioncontrol/pdf/guidelines/disinfection-guidelines.pdf.) In light of the hospital’s longstanding practice to sterilize flexible laryngoscopes, neither this CDC guidance nor JB’s declaration is sufficient to
JB also objects to the R&R’s analysis of the first two disciplines Gonzales issued to JB.
These objections are also unpersuasive. The Court agrees with the R&R’s analysis of these issues
and briefly adds the following points.
As to the first discipline, contrary to JB’s argument, the “3 Hour Steam B.I. Record”
(“Record”) underlying this discipline, (Clark Decl. Ex. 10), does not show that other employees
made the “same mistakes” as JB, (JB Obj. at 6). JB was the only employee whose written entry
on the Record was clearly inaccurate. While other employees may have failed to check the
“biological” vial as promptly as they should have, such an error is simply not the same as JB’s
patently incorrect entry on the Record.8
JB also argues that the second discipline he received is suspect. JB received a written
reprimand for leaving several trays uncompleted at the end of his shift. (Clark Decl. Ex. 12.)
According to JB’s testimony, when Gonzales gave JB this reprimand, Gonzales told him:
this has nothing to do with me because he is just handing over the document . . . .
Just sign it, this had nothing to do -- I know you are okay, you are fine, but the other
Theatrice [Coats], gave me this so I am just giving to you. It has
nothing bearing on you, just sign it.
(JB Dep. 31.)
Critically, JB does not dispute that he failed to process the trays referenced in the written
reprimand that he received. JB, however, asserts that the explanation of this discipline that
JB received verbal counseling for entering incorrect information on the Record. The “Verbal Counseling” memo
for the incident that Gonzales drafted also states that “the biological [vial] needs to be read promptly in 3 hours once
it has been incubated.” (Clark Decl. Ex. 11.) Entries on the Record appear to show that JB and other employees failed
to promptly read the “biological” (also referred to as the “Results Vial”) in three hours. For example, on September
16, an employee identified as “Red” checked a vial approximately seven hours after another employee had initially
placed the vial in the incubator. Similarly, on September 18, 2011, JB checked two vials five hours after they were
placed into the incubator. (Id.) Gonzales, however, did not discipline JB for these actions, which are not even
mentioned in the September 24, 2011 “Verbal Counseling” memo. Rather, all of the evidence indicates that Gonzales
gave JB verbal counseling because of the inaccurate information that he entered on the Record. This is a further
reason why any failure by Gonzales to discipline other employees for not promptly checking the biological would not
Gonzales provided to JB—namely, that Theatrice Coats, the supervisor who was on duty at the
time, was responsible for this discipline—is so patently absurd that it suggests pretext. This
argument is meritless. Notably, JB did not even depose Coates. Moreover, nothing in the record
supports JB’s speculative argument that Coates could not have possibly initiated this discipline.
In his objection, JB contends that “Coats was an offsite contract worker, and she would have had
no role in the discipline of employees.” (JB Obj. at 6.) However, nothing in the record supports
JB’s assertion that Coats had “no role” in employee discipline. Notably, JB testified that Coats
was a “management consultant who was hired from an agency to fix the department.” (JB Dep.
31.) It is not surprising that a person in such a position would play a role in employee discipline,
and JB points to no contrary evidence concerning the scope of Coats’s responsibilities at NHCC.
JB also argues that it made “no sense” to discipline JB “for following directions.” (JB Obj. at 7.)
JB, however, was not disciplined for following directions. According to JB, Coats told him to
“prioritize” “a spinal fusion tray.” (JB Decl. ¶ 12.) And, later that shift, he also had to prioritize
a “labor and delivery cart.” (Id.) There is, however, no evidence that Coats ever told JB that he
did not have to also finish his regular work that shift.9 At best, JB’s evidence suggests that the
discipline he received was harsh, and maybe even unfair. However, that alone is not enough to
suggest that Gonzales’s account of this incident was a pretext for discrimination, particularly when
JB did not even depose Coats.
JB’s remaining argument is that the R&R erred in concluding that the fact that Gonzales
terminated or forced the resignation of all of three Indian employees in the Central Sterile
Department was insufficient to prove discrimination.
Coats does not appear to have given JB any instructions regarding the “labor and delivery cart.” And, even if she
had told him to prioritize this cart, there is no evidence that Coats ever told JB that he did not have to also finish his
regular work that shift
The Court agrees with the R&R’s conclusion that such evidence is insufficient to establish
that defendants’ rationale for terminating JB was a pretext for discrimination.
previously addressed this evidence in the context of WB’s claim. Again, the mere fact that all
three Indian employees were terminated or forced to resign has limited probative value concerning
Gonzales’s discriminatory intent. In light of the other evidence in the record, this bare fact is not
sufficiently probative for a reasonable jury to infer that JB’s termination was discriminatory.
After considering the parties’ objections and the R&R, the Court grants defendants’ motion
for summary judgment on the claims of both JB and WB for the reasons above. The Clerk of
Court is respectfully directed to enter judgment accordingly and to close this case.
Dated: August 1, 2017
Central Islip, New York
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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