Bey v. Columbia Presbyterian Medical Center
Filing
78
MEMORANDUM AND ORDER granting 62 Motion for Summary Judgment filed by The New York and Presbyterian Hospital; denying 75 Motion for Summary Judgment filed by Vera Crawford Bey: For the reasons set forth within, Plaintiff's motion for summary judgment is denied, and Defendant's motion for summary judgment is granted. The Clerk of Court is respectfully directed to terminate the motions located at Doc. Nos. 62 and 75 and to close this case. (Signed by Judge Richard J. Sullivan on 9/30/2011) Copies Sent By Chambers. (ab)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 08 Civ. 5454 (RJS)
_____________________
VERA CRAWFORD-BEY,
Plaintiff,
VERSUS
THE NEW YORK AND PRESBYTERIAN HOSPITAL,
Defendant.
___________________
MEMORANDUM AND ORDER
September 30, 2011
___________________
RICHARD J. SULLIVAN, District Judge:
Plaintiff Vera Crawford-Bey, proceeding
pro se, brings this action against her former
employer pursuant to federal, state, and local
civil rights laws, alleging employment
discrimination, retaliation, and creation of a
hostile work environment based on her age,
race, and disability.
Before the Court are the parties’ crossmotions for summary judgment. For the
reasons that follow, Defendant’s motion is
granted, and Plaintiff’s motion is denied.
I. BACKGROUND
A. Facts
Plaintiff is a 57-year-old AfricanAmerican woman who purportedly suffers
from claustrophobia.1 From June 2004 until
January 2007, Plaintiff worked as a nurse
1
The facts are taken from Defendant’s Local Rule 56.1
statement as well as the declarations and exhibits
attached thereto. Because Plaintiff failed to submit her
own 56.1 statement, despite specific prompting from
the Court, the facts set forth in Defendant’s 56.1
statement (“Def. 56.1”) are deemed admitted. See
Local Civ. R. 56.1(c) (“Each numbered paragraph in
the statement of material facts set forth in the statement
required to be served by the moving party will be
deemed to be admitted for purposes of the motion
unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be
served by the opposing party.”); see also Gitlow v.
United States, 319 F. Supp. 2d 478, 480 (S.D.N.Y.
2004) (pro se litigant’s failure to submit a Rule 56.1
statement resulted in his adversary’s statement being
taken as true). References to the parties’ submissions
are as follows: Defendant’s memorandum of law in
support of its motion for summary judgment (“Def.
Mem.”); Plaintiff’s brief in support of her cross-motion
for summary judgment and in opposition to
Defendant’s motion (“Pl. Mem.”); Defendant’s reply
coordinator in the transplant division of
Defendant New York and Presbyterian
Hospital (the “Hospital” or “Defendant”).
(Def. 56.1 ¶¶ 4, 7, 23.) At the time she was
hired, Plaintiff did not inform the Hospital of
any medical condition that might limit her
employment or require accommodations. (Id.
¶ 6.)
return to work after vacation and paid time
off.” (Brady Decl., Ex. 8 at D003-11.)
In early 2006, the Hospital hired Diego
Arias as a manager of transplant operations,
and he became Plaintiff’s supervisor. (Def.
56.1 ¶ 16.) On June 30, 2006, Arias issued
Plaintiff a “Corrective Action Form,” which
noted that Plaintiff arrived late to work nine
times in June 2006. (Id. ¶ 17.) Arias further
noted that Plaintiff had received verbal
warnings in 2005 with respect to her lateness
and instructed her that she must “[s]how up to
work on time!” (Brady Decl., Ex. 10 at
D161.)
Plaintiff was initially supervised by Mary
Jane Samuels, the Hospital’s post-transplant
supervisor, and Joan Kelly, the manager of
the Hospital’s transplant division. (Id. ¶ 7.)
On December 15, 2004, Plaintiff received her
“Probationary Period of Employment
Evaluation” from Kelly, who rated Plaintiff’s
overall competency as “Needs Improvement.”
(Id. ¶¶ 10-11.) Kelly noted several concerns
about Plaintiff’s performance, including her
“issues with the responsibilities of being a full
time employee,” her “need[] to improve her
record keeping and to seek out answers if
confronted with an unknown task,” and her
lack of punctuality in coming to work and
returning from breaks. (Decl. of Kevin
Brady, dated October 28, 2010, Doc. No. 64
(“Brady Decl.”), Ex. 8.) Despite these
concerns, the Hospital decided to extend
Plaintiff’s probationary period for two
months, “in hopes that her job performance
will improve.” (Id.)
On November 6, 2006, Arias issued a
second written warning to Plaintiff for
“excessive lateness to work.” (Id. at D020.)
Arias noted that, since their meeting on June
30, 2006, Plaintiff had been late to work
eighteen times. (Id.) Arias further instructed
Plaintiff that “lateness to work must improve
immediately or employment could be
[a]ffected.” (Id.)
On December 4, 2006, Arias issued a
third written warning to Plaintiff. (Id. at
D014-D016.) In the warning, Arias identified
four issues with Plaintiff’s job performance
and provided a corresponding corrective
action plan.
(Id.)
Specifically, Arias
highlighted Plaintiff’s failure to: (i) timely
report to work three times after being issued
her second written warning regarding
punctuality; (ii) verify patient medication
information and accurately record it in the
patient’s chart; (iii) return to work after
completing a training meeting and to notify a
supervisor that she was leaving work; and (iv)
create a pharmacy binder to accurately
monitor and track all pharmacy requests. (Id.)
Over the next year, Plaintiff continued to
struggle with punctuality. Between August
11, 2005 and October 11, 2005, Plaintiff was
late to work thirty times. (Def. 56.1 ¶ 13.)
On January 11, 2006, Plaintiff received her
performance review for 2005. (Id. ¶ 14.) In
the review, Kelly noted that Plaintiff had
made “definite improvement” overall, but set
Plaintiff’s goal for the coming year as
“continu[ing] to maintain punctuality and
memorandum (“Def. Reply”);
memorandum (“Pl. Reply”).
Plaintiff’s
On January 5, 2007, Plaintiff’s
employment was terminated due to her
reply
2
chronic lateness. (Def. 56.1 ¶ 23.) On
September 7, 2007, Plaintiff filed a Charge of
Discrimination with the Equal Employment
Opportunity Commission (“EEOC”). (Brady
Decl., Ex. 13.) On March 10, 2008, the
EEOC sent Plaintiff a letter stating that “the
Commission has determined that the facts
alleged in your case are not sufficient to
continue this investigation,” and informing
Plaintiff of her right to bring suit within 90
days. (Def. 56.1 ¶ 26.) The letter further
noted that,
28, 2010, Defendant moved for summary
judgment against Plaintiff. (Doc. No. 62.) In
addition to its moving papers, Defendant
served Plaintiff with a “Notice to Pro Se
Litigant Who Opposes a Motion for
Summary Judgment,” as required by Local
Rule 56.2. (Doc. No. 66.) The notice
advised Plaintiff of her obligations in
responding to a summary judgment motion,
including the need to file a 56.1 statement.
(Id.) On November 30, 2010, Plaintiff filed
papers purporting to be a cross-motion for
summary judgment. However, Plaintiff’s
filing was rejected because it lacked: (i) a
56.1 Statement in support of Plaintiff’s
motion; (ii) an opposition to Defendant’s 56.1
Statement; (iii) an original signature; and (iv)
an affirmation of service. On December 6,
2010, the Court ordered Plaintiff to submit
revised motion papers by December 17, 2010.
(Doc. No. 68.) The Court advised Plaintiff
that “failure to make these corrections will
result in the Court accepting as true all
admissible facts set forth in Defendant’s
Local Rule 56.1 Statement.” (Id.) On
December 21, 2010, Plaintiff submitted
revised motion papers, but again failed to
submit a 56.1 Statement. The motions were
fully submitted as of January 23, 2011.
although you allege that you were
discriminated against because of your
race, color, religion, age, disability,
other (culture) and retaliation, you
failed to provide any evidence to
suggest
that
Respondent’s
employment actions were based on
any of the above. Also, the record
shows that you were terminated for
cause. Therefore, the Commission
will take no further action in this
matter.
(Id.)
Plaintiff filed her complaint in this Court
on June 17, 2008, alleging employment
discrimination, retaliation, and creation of a
hostile work environment pursuant to Title
VII of the Civil Rights Act of 1964 (“Title
VII”), the Age Discrimination in Employment
Act of 1967 (“ADEA”), the Americans with
Disabilities Act of 1990 (“ADA”), the New
York State Human Rights Law (“NYSHRL”),
and the New York City Human Rights Law
(“NYCHRL”).2 (Doc. No. 1.) On October
II. STANDARD OF REVIEW
Pursuant to Rule 56(a) of the Federal
Rules of Civil Procedure, a court may not
grant a motion for summary judgment unless
“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). The moving party bears
the burden of showing that it is entitled to
summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). The
court “is not to weigh evidence but is instead
2
Defendant argues that Plaintiff’s complaint is time
barred because it was filed more than 90 days after
Plaintiff received the EEOC’s right-to-sue letter.
(Def.’s Mem. at 1.) However, because there is a
dispute as to when Plaintiff actually received the
letter, the Court will consider the merits of her
claims.
3
III. DISCUSSION
required to view the evidence in the light
most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004) (internal quotation marks
omitted); accord Anderson, 477 U.S. at 248.
As such, “if there is any evidence in the
record from any source from which a
reasonable inference in the [nonmoving
party’s] favor may be drawn, the moving
party simply cannot obtain a summary
judgment.” Binder & Binder PC v. Barnhart,
481 F.3d 141, 148 (2d Cir. 2007) (internal
quotation marks omitted).
A. Race and Age Discrimination
As noted above, Plaintiff alleges that she
was discriminated against on the basis of her
race and age in violation of Title VII, the
ADEA, the NYSHRL, and the NYCHRL.3
Because Plaintiff has not presented any direct
evidence of discriminatory animus,4 the Court
will review Plaintiff’s various discrimination
claims under the three-step, burden-shifting
framework established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973).5
In the first step of this framework, the
employee bears the burden of setting forth
evidence sufficient to support a prima facie
“[B]ecause
direct
evidence
of
discriminatory intent is rare and such intent
often must be inferred from circumstantial
evidence,” courts must exercise “an extra
measure of caution” in determining whether
to grant summary judgment in cases
involving allegations of employment
discrimination. Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006).
However, even in an employment
discrimination case, “a plaintiff must provide
more than conclusory allegations to resist a
motion for summary judgment.” Holcomb v.
Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).
The ultimate test remains “whether the
evidence can reasonably support a verdict in
plaintiff’s favor.” James v. N.Y. Racing
Ass’n, 233 F.3d 149, 157 (2d Cir. 2000).
Because Plaintiff appears pro se in this
matter, the Court construes her submissions
liberally and interprets them “to raise the
strongest arguments [that they] suggest.”
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006).
3
In her motion papers, Plaintiff also references
alleged discrimination on the basis of religion.
Plaintiff’s complaint, however, does not advance a
claim for religious discrimination. (See Compl. at 4.)
While it appears that Plaintiff checked the “Religion”
box in her charge of discrimination that was
submitted to the EEOC, she advanced no substantive
allegations of religious discrimination in the charge.
(See Brady Decl., Ex. 13.) Therefore, because
Plaintiff has failed to exhaust this claim at the
administrative level and has not alleged it in her
complaint before this Court, the claim is not properly
before the Court and will not be considered. See
Chen v. Citigroup Inv., Inc., No. 03 Civ. 6612
(GBD), 2004 WL 2848539, at *2 (S.D.N.Y. Dec. 9,
2004).
4
The Second Circuit has noted that “direct evidence” in
this sense would roughly equate to a “smoking gun”
indicating that a plaintiff’s firing was discriminatory,
and that such evidence is typically unavailable in
employment discrimination cases. Holtz v. Rockefeller
& Co., 258 F.3d 62, 76 (2d Cir. 2001). The Court finds
no such evidence in the record in the instant case.
5
“The standards for liability under [the NYSHRL and
NYCHRL] are the same as those under the equivalent
federal antidiscrimination laws.” Ferraro v. Kellwood
Co., 440 F.3d 96, 99 (2d Cir. 2006).
4
determining whether the articulated reason for
the action is a pretext, “a fact-finder need not,
and indeed should not, evaluate whether a
defendant’s stated purpose is unwise or
unreasonable. Rather, the inquiry is directed
toward determining whether the articulated
purpose is the actual purpose for the
challenged employment-related action.”
DeMarco v. Holy Cross High Sch., 4 F.3d
166, 170-71 (2d Cir. 1993).
case of discrimination.
See McDonnell
Douglas, 411 U.S. at 802. To establish a
prima facie case of discrimination, a plaintiff
must show (1) membership in a protected
class, (2) qualification for the position she
held, (3) an adverse employment action, and
(4) that the adverse employment action
occurred under circumstances that give rise to
an inference of discrimination. See Ruiz v.
County of Rockland, 609 F.3d 486, 491 (2d
Cir. 2010).
Plaintiff’s most concrete allegation of
discrimination is that the Hospital refused to
let her work a “flexible schedule” even
though “[a]ll of the [other] seven nurse
coordinators had flexible schedules base[d]
on pre-employment agreement.” (Pl. Reply at
4.) As the Second Circuit has noted, “[a]
showing of disparate treatment – that is, a
showing that the employer treated plaintiff
less favorably than a similarly situated
employee outside his protected group – is a
recognized method of raising an inference of
discrimination for purposes of making out a
prima facie case.” Mandell v. County of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)
(internal quotation marks omitted). However,
in order to demonstrate disparate treatment, a
plaintiff must show that she was “similarly
situated in all material respects to the
individuals with whom she seeks to compare
herself.” Id. (internal quotation marks
omitted).
If the plaintiff is able to establish a prima
facie case, the burden then shifts to the
defendant to “articulate some legitimate,
nondiscriminatory reason for the [adverse
employment action].” O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 311
(1996) (internal quotation marks omitted). At
this step, however, a defendant “need not
persuade the court that it was actually
motivated by the proffered reason.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981).
If
the
defendant
articulates
a
nondiscriminatory explanation for the action,
“the burden shifts back to the plaintiff to
demonstrate by competent evidence that ‘the
legitimate reasons offered by the defendant
were not its true reasons, but were a pretext
for discrimination.’” Patterson v. County of
Oneida, 375 F.3d 206, 221 (2d Cir. 2004)
(quoting Burdine, 450 U.S. at 253). To create
a material issue of fact and defeat a motion
for summary judgment, however, a plaintiff is
required to produce “not simply some
evidence, but sufficient evidence to support a
rational finding that the legitimate
nondiscriminatory reasons proffered by the
[defendant] were false, and that more likely
than not [discrimination] was the real reason
for the [employment action].” Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir.
2000) (internal quotation marks omitted). In
Here, Plaintiff has put forward no
evidence from which the Court can conclude
that she was treated differently from
similarly-situated employees on the basis of
her protected status. First, Plaintiff fails to
provide the most basic information regarding
the identities of the nurses who purportedly
received more favorable treatment. It is only
in her complaint that Plaintiff makes a passing
reference to the other nurses being “young”
and “white.” (Compl. at 5.) However, even
5
corroborate this agreement. To the contrary,
the undisputed evidence reveals that Plaintiff
received numerous written warnings with
respect to her tardiness. In one such warning,
Plaintiff’s supervisor made it clear that if
Plaintiff’s punctuality did not improve, then
her employment would be affected. (Brady
Decl., Ex. 10 at D020.) Because of Plaintiff’s
clearly documented problems with lateness,
there is no basis for a reasonable factfinder to
infer that Defendant’s explanation for
Plaintiff’s dismissal was pretextual. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993) (“[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.” (internal
quotation marks omitted)). Plaintiff has
offered no evidence to suggest either that the
assertions concerning her tardiness were false,
or that discrimination on the basis of her race
and/or age was the real reason for her firing.
if Plaintiff had established that she was
treated differently than younger, white nurses,
she has put forward no evidence to support a
finding that she and the other nurses were
similarly situated. Plaintiff fails to identify
the other nurses’ specific positions at the
Hospital, their levels of seniority, or their job
duties. See Spiegler v. Isr. Disc. Bank of N.Y.,
No. 01 Civ. 6364 (WK), 2003 WL 21983018,
at *2 (S.D.N.Y. Aug. 19, 2003) (“A court can
properly grant summary judgment [on a
discrimination claim] where no reasonable
jury could find the similarly situated prong
met.” (citing Harlen Assoc. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 n.2 (2d Cir.
2001))). Indeed, Plaintiff does not even
provide evidence that these nurses were in
fact permitted to work on flexible schedules.
As such, Defendant’s failure to permit
Plaintiff to work a flexible schedule does not
give rise to an inference of discrimination.
Similarly, Plaintiff’s moving papers are
wholly bereft of any evidence that would lead
a reasonable factfinder to conclude that her
termination was motivated by discriminatory
intent.
Instead of articulating specific
instances of discrimination, Plaintiff’s
memoranda of law merely recite conclusions
regarding Defendant’s “hatred and . . .
discriminatory action and attitude.” (Pl.
Reply at 4.)
Accordingly, Defendant’s motion for
summary judgment is granted with respect to
Plaintiff’s
claims
for
employment
discrimination.
B. Disability Discrimination
Plaintiff also argues that she was
discriminated against on the basis of her
claustrophobia by being assigned to an office
“without [access] to proper ventilation,
lighting and with a very offensive smelling
bathroom frequently visit[ed] by the other
coordinator beside the plaintiff.” (Pl. Reply at
10.) Plaintiff argues that she was placed in
this office as part of a “malic[ious] attempt to
force plaintiff to resign.” (Id. at 10.)
Nevertheless, even if Plaintiff had been
able to establish a prima facie claim of
discrimination relating to her termination,
she would be unable to demonstrate that
Defendant’s proffered reason for her
termination – namely, her chronic tardiness –
was pretextual. Although Plaintiff testified at
her deposition that she had a verbal
agreement with Kelly pursuant to which she
was permitted “to start basically between 9:00
and 9:30” (Brady Decl., Ex. 2 at 28:9-12, 30:
11-15), Plaintiff presents no evidence to
The Court once again analyzes this claim
under the McDonnell Douglas burdenshifting framework. See Heyman v. Queens
Vi.. Comm. for Mental Health, 198 F.3d 68,
6
72 (2d Cir. 1999). To establish a prima facie
disability discrimination case under the
ADA, a plaintiff must show (1) that her
employer is subject to the ADA, (2) that she
suffers from a disability within the meaning
of the ADA, (3) that she was otherwise
qualified to perform her job functions with
or without reasonable accommodation, and
(4) that she suffered an adverse employment
action because of her disability.6 See Brady
v. Wal-Mart Stores, Inc., 531 F.3d 127, 134
(2d Cir. 2008).
has stated, an adverse employment action is
a “‘materially adverse change’ in the terms
and conditions of employment” that is
“‘more
disruptive
than
a
mere
inconvenience or an alteration of job
responsibilities.’” Galabya v. New York
City Bd. of Ed., 202 F.3d 636, 640 (2d Cir.
2000) (quoting Crady v. Liberty Nat'l Bank
and Trust Co., 993 F.2d 132, 136 (7th Cir.
1993)). “[A] plaintiff must show that the
conduct complained of materially ‘affected
the terms, privileges, duration, or conditions
of . . . employment.’” Montanile v. Nat’l
Broad. Co., 211 F. Supp. 2d 481, 486
(S.D.N.Y. 2002) (quoting Cooper v. New
York State Dep't of Human Rights, 986 F.
Supp. 825, 828 (S.D.N.Y. 1997).
As an initial matter, the Court cannot
conclude from the evidence in the record
that Plaintiff qualifies as an individual with
a disability. The ADA defines a “disability”
as “(A) a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual; (B) a
record of such an impairment; or (C) being
regarded as having such an impairment.” 42
U.S.C. § 12102(1). While Plaintiff states
that her claustrophobia causes her “illness,
dizziness, nausea, headache, and malaise”
(Reply at 9), Plaintiff has not put forward
any credible, admissible evidence of the
extent of these symptoms that would allow
the Court to determine whether they are
severe enough to substantially limit her
ability to engage in a major life activity such
as working.
Plaintiff’s assignment to a small,
windowless office fails to rise to the level of
an adverse employment action.
While
Plaintiff may have been uncomfortable in
her office, she has presented no credible
evidence to demonstrate that such a
placement had any material effect on the
substance of her employment.
Indeed,
Plaintiff’s assertion that she was assigned to
that office as part of Defendant’s effort to
provoke Plaintiff into resigning is
undermined by her own acknowledgment
that Defendant, in response to Plaintiff’s
requests, ultimately equipped the office with
an air conditioner. (Ex. 1 at 8.) Plaintiff’s
complaints, therefore, fail to demonstrate
more than mere inconveniences that are not
actionable under the relevant discrimination
laws. See Montanile, 211 F. Supp. 2d at 486
(“Mere changes in working conditions that
cause some inconvenience do not constitute
adverse employment actions as a matter of
law.”).
Even if Plaintiff did qualify as an
individual with a disability, her claim would
nonetheless fail because she has not
demonstrated that she suffered an adverse
employment action. As the Second Circuit
6
“In this Circuit, a disability-based discrimination
claim under the NYSHRL and NYCHRL involve the
‘same elements’ as an ADA claim.” Jernigan v.
Dalton Mgmt. Co., No 10 Civ. 94 (SAS), 2011 WL
3273514, at *3 (S.D.N.Y. July 29, 2011) (quoting
Kinneary v. City of New York, 601 F.3d 151, 158 (2d
Cir. 2010)).
Finally, to the extent that Plaintiff’s
claim is construed as a claim for failure to
accommodate her disability, such a claim
7
also fails. To succeed on a claim for failure
to accommodate, a plaintiff has the initial
burden of proving that she is “(1) a person
with a disability under the meaning of the
ADA; (2) an employer covered by the
statute had notice of his disability; (3) with
reasonable accommodation, plaintiff could
perform the essential functions of the job at
issue; and (4) the employer has refused to
make such accommodations.” McBride v.
BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 97 (2d Cir. 2009) (internal quotation
marks omitted).
she was engaged in protected activity; (2) her
employer was aware of the plaintiff’s
participation in protected activity; (3) the
employer took adverse action against the
plaintiff; and (4) a causal connection exists
between the plaintiff’s protected activity and
the adverse action taken by the employer.8
See Kaytor, 609 F.3d at 552.
While Plaintiff checked the “Retaliation”
box on her complaint that was filed in this
Court (see Compl. at 4), she has failed to
articulate any substantive argument that
Defendant has retaliated against her. Indeed,
it is undisputed that Plaintiff never filed a
written complaint of discrimination with the
Hospital before the termination of her
employment in January 2007. See Woods v.
N.M.C. Laboratories, No. 93 Civ. 2908
(ERK), 1997 WL 1038873, at *2 (E.D.N.Y.
July 14, 1997) (“The first, and most basic,
element of a retaliatory discharge claim is that
the activity for which the employee was
discharged be Title VII-protected activity, not
just any permissible activity.”)
As noted above, the Court is unable to
conclude from the record that Plaintiff is an
individual with a disability. While Plaintiff
alleges that she began seeing a doctor to
“deal with the symptoms of claustrophobia”
(Pl.’s Reply at 10), Plaintiff has failed to
demonstrate that her impairment was
sufficiently severe to qualify her as disabled
and therefore entitle her to accommodation.
See Ragin v. East Ramapo Cent. Sch. Dist.,
No. 05 Civ. 6496 (PDG), 2010 WL
1326779, at *20 (March 31, 2010)
(“[S]imply because a plaintiff has submitted
a doctor’s note does not mean that the
plaintiff is entitled to an accommodation.”).
To the extent that Plaintiff attempts to
base her retaliation claim on her requests to
be relocated to a different office due to her
purported claustrophobia, such a claim fails
for the same reason that Plaintiff’s age and
race discrimination claims fail – namely, her
Accordingly, Defendant’s motion for
summary judgment is granted with respect
to Plaintiff’s claim for employment
discrimination.
8
The elements for retaliation claims under Title VII,
ADEA, and the NYSHRL are the same. See Reed v.
A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d
Cir. 1996); Coffey v. Cushman & Wakefield, Inc., No.
01 Civ. 9447 (JGK), 2002 WL 1610193, at *4 (July 22,
2002). The elements of retaliation under the NYCHRL
differ only in “that the plaintiff need not prove any
‘adverse’ employment action; instead, he must prove
that something happened ‘that would be reasonably
likely to deter a person from engaging in protected
activity.’” Jimenez v. City of New York, 605 F. Supp.
2d 485, 528 (S.D.N.Y. 2009) (quoting NYCHRL § 8–
107(7)).
C. Retaliation
In her complaint, Plaintiff also asserts a
claim for retaliation. The Court analyzes this
claim under the McDonnel Douglas burdenshifting framework. See Kaytor v. Elec. Boat
Co., 609 F.3d 537, 552 (2d Cir. 2010).
To establish a prima facie case of
retaliation, a plaintiff must establish that (1)
8
failure to demonstrate that Defendant’s
proffered reason for her termination was
pretextual.
(Reply at 7), Plaintiff fails to provide details
or to specify how this resulted in an abusive
working environment that was “permeated
with discriminatory intimidation.” Indeed,
Plaintiff does not allege that any of the
purportedly hostile remarks were directed at
her or were intended to intimidate her. See
Murray v. Visiting Nurse Servs. of N.Y., 528
F. Supp. 2d 257, 280 (S.D.N.Y. 2007)
(denying plaintiff’s claim for hostile work
environment where, among other things, the
vast majority of the comments at issue were
not directed at plaintiff individually).
Accordingly, Defendant’s motion for
summary judgment is granted with respect to
Plaintiff’s retaliation claim.
D. Hostile Work Environment
Plaintiff has also asserted a claim for
hostile work environment.
To prevail on a claim for hostile work
environment, Plaintiff must demonstrate that
her workplace was “permeated with
discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive
to alter the conditions of the victim’s
employment and create an abusive working
environment.” 7 Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation
marks and citations omitted); see also
DelaPaz v. N.Y. City Police Dep’t, No. 01
Civ. 5416 (CBM), 2003 WL 21878780, at
*3 (S.D.N.Y. Aug. 30, 2003) (“[T]he
Second Circuit erected a remarkably high
hurdle with respect to the level and
frequency of offensive conduct that must be
present in order to sustain . . . a [hostile
environment] claim.”).
Plaintiff also argues that she was
subjected to a hostile work environment
because “defendant intentionally refuse[d] to
offer the plaintiff the opportunity to take the
renal transplant certification from 20042007.” (Reply at 8.) However, such
ordinary management decisions plainly fail
to establish a hostile work environment. See
Lizardo v. Denny’s, Inc., 270 F.3d 94, 104
(2d Cir. 2001) (affirming grant of summary
judgment where “Plaintiffs have done little
more than cite to their mistreatment and ask
the court to conclude that it must have been
related to their race”).
Because Plaintiff has not put forward any
evidence giving rise to the inference that any
perceived mistreatment she endured was the
result of discriminatory intent, her claim for
hostile work environment must fail.
Here, Plaintiff fails to put forward
evidence sufficient to meet this standard.
While Plaintiff nakedly alleges that
“Defendant/agent made many hostile
comments in reference to the Moslem
participation in the bombing of the [W]orld
[T]rade [C]enter” during her employment
IV. CONCLUSION
The
federal,
state,
and
local
discrimination laws implicated in this case
exist in order to ensure that individuals are not
discriminated against based on their
membership in a protected class, not merely
to redress any action which a plaintiff
perceives as being unfair. Here, although
Plaintiff undoubtedly feels that she was
7
Hostile work environment claims under Title VII,
the NYSHRL, and the NYCHRL are all analyzed
using the same standard. See Citroner v. Progressive
Cas. Ins. Co., 208 F. Supp. 2d 328, 339 (E.D.N.Y.
2002) (citing Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 69 (2d Cir. 2000)).
9
treated unfairly, she has advanced no
evidence that any adverse action was
undertaken because of her membership in a
protected class.
For the foregoing reasons, Plaintiffs
motion for summary judgment is denied, and
Defendant's motion for summary judgment is
granted. The Clerk of Court is respectfully
directed to tenninate the motions located at
Doc. Nos. 62 and 75 and to close this case.
/"J~
SO ORDERED. '"
R1~VAN
United States District Judge
Dated: September 30, 2011
New York, New York
***
Plaintiff
Vera
proceeding pro se.
Crawford-Bey
IS
Defendant is represented by Barbara
Gross, James Frank, and Kevin Brady of
Epstein Becker & Green, P.C., 250 Park
Avenue, New York, NY 10177.
USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _____________
DATE FILED: :/- ~_ t ,
10
A copy of this order was sent to:
Vera Crawford-Bey
10 Cleveland Avenue
York, SC 29745
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?