Trower v. Mount Sinai Hospital et al
Filing
52
OPINION AND ORDER re: 37 MOTION for Summary Judgment Papers Originially Filed August 17, 2017. filed by Mount Sinai Hospital, Vadesa Guzman, Nisha Sullivan. Defendants' motion for summary judgment is granted in part and denied in part. The Clerk is directed to terminate the motion. (Docket # 37.) The surviving claims in this action assert disability discrimination and retaliation for complaining of disability discrimination under the ADA against Mount Sinai, and disabi lity discrimination and retaliation under the NYCHRL against Mount Sinai and Sullivan. There will be a pretrial conference on September 21, 2018 at 12:30 p.m. SO ORDERED. (Pretrial Conference set for 9/21/2018 at 12:30 PM before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 9/6/2018) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KANIKA TROWER,
Plaintiff,
-against-
16-cv-4322 (PKC)
OPINION
AND ORDER
MOUNT SINAI HOSPITAL, VADESA
GUZMAN and NISHA SULLIVAN,
Defendants.
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CASTEL, U.S.D.J.
From April 2013 to November 2015, plaintiff Kanika Trower was employed by
defendant Mount Sinai Hospital (“Mount Sinai,” or the “Hospital”), where her responsibilities
mainly entailed helping new patients register with the Hospital. Trower asserts that during her
employment, she was discriminated against on account of her race by her immediate supervisor,
defendant Vadesa Guzman, and her department’s administrative manager, defendant Nisha
Sullivan. In June 2015, Trower filed a complaint of racial discrimination with the Equal
Employment Opportunity Commission (the “EEOC”).
Shortly thereafter, Trower went on disability leave due to anxiety and depression.
She filed a charge of disability discrimination with the EEOC in August 2015. Trower was
terminated on November 2, 2015, based on what defendants have described as a
misunderstanding about the status of documentation that was required to substantiate her
disability. The next month, in December 2015, Trower’s documentation was located in Hospital
files, and she was immediately reinstated. Following reinstatement, she did not return to work at
Mount Sinai, and began employment at Bronx Lebanon Hospital in April 2016.
Trower asserts that Mount Sinai terminated her on the basis of her race and
disability, and that she was also terminated for retaliatory reasons. Trower also asserts that she
was subjected to a hostile work environment. She brings claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101, et seq. (the “ADA”) and the New York City Human Rights Law
(“NYCHRL”).
Discovery in this case is closed, and defendants have moved for summary
judgment in their favor. For the reasons that will be explained, the defendants’ motion for
summary judgment is granted as to Trower’s claims of racial discrimination, hostile work
environment and retaliation for complaints about racial discrimination. However, because
Trower has come forward with evidence from which a reasonable trier of fact could find
discriminatory and retaliatory intent related to disability, defendants’ motion is denied as to her
claims of discrimination and retaliation under the ADA and NYCHRL.
BACKGROUND.
A. Trower’s Disciplinary History and Her Interactions with Supervisors.
In April 2013, Mount Sinai hired Trower to work as a registrar, a job that required
her to complete the registration process for arriving patients. (Def. 56.1 ¶¶ 1-2; Pl. 56.1 Resp. ¶¶
1-2.) Trower identifies as African American. During the time of Trower’s employment,
defendant Vadesa Guzman was her immediate supervisor, and defendant Nisha Sullivan was the
department’s administrative manager, with direct supervisory authority over Guzman. (Def. 56.1
¶ 4; Pl. 56.1 Resp. ¶ 4.) Guzman identifies as Hispanic, and Sullivan identifies as African
American. (Def. 56.1 ¶ 5; Pl. 56.1 Resp. ¶ 5; Pl. 56.1 ¶ 81; Def. 56.1 Resp. ¶ 81.)
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Beginning in February 2014, Trower received a series of disciplinary warnings,
and was required to attend documented conferences related to certain issues that arose in the
workplace. On February 12, 2014, she received a warning for failure to verify certain patient
information, and for four occasions where she failed to call insurers during patient registration.
(Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8.) Defendants assert that Trower received a second warning on March
14, 2014, this time for failing to obtain patient authorizations; Trower disputes that she received
this warning. (Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10.) On April 8, 2014, Trower attended a documented
conference with a supervisor for violating the departmental dress code. (Def. 56.1 ¶ 11; Pl. 56.1
¶ 11.) On September 9, 2014, Trower received a warning for entering incorrect information
concerning two referring physicians, which caused those physicians not to receive patient
reports. (Def. 56.1 ¶¶ 13-14; Pl. 56.1 Resp. ¶¶ 13-14.) On February 10, 2015, Trower attended a
documented conference to address her purported failure to inform a coordinator that she would
be away from the front desk, and for addressing the coordinator “inappropriately.” (Def. 56.1 ¶
15; Pl. 56.1 Resp. ¶ 15.) On March 3 and March 24, 2015, Trower attended documented
conferences related to inaccuracies that she entered as to certain patients. (Def. 56.1 ¶ 16; Pl.
56.1 Resp. ¶ 16.) On May 1, 2015, Trower argued in front of patients with a co-worker, Jerrilyn
Torres, over a bag of chips; Trower asserts that she did not behave inappropriately and that
Torres was the aggressor. (Def. 56.1 ¶ 17; Pl. 56.1 Resp. ¶ 17.) As a result of the incident, both
Trower and Torres received “Final Warnings.” (Def. 56.1 ¶ 19; Pl. 56.1 Resp. ¶ 19.)
After May 19, 2015, Trower received a second “Final Warning” and a five-day
suspension, as a result of an incident in which defendant Guzman concluded that Trower had not
shown up for work and had not informed Guzman of her absence. (Def. 56.1 ¶¶ 20-24; Pl. 56.1
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Resp. ¶¶ 20-24.) Trower maintains that she informed Guzman of her absence. (Pl. 56.1 Resp. ¶
20.)
Trower then wrote to officials of 1199SEIU United Healthcare Workers East (the
“Union”), the union of which she was a member, and complained about her purported
mistreatment. (Def. 56.1 ¶¶ 3, 25-26; Pl. 56.1 Resp. ¶¶ 3, 25-26.) Tyrome Bell, the Union’s
organizer, met with Clarissa Jones-Winter, the director of labor relations at Mount Sinai, and the
two discussed Trower’s disciplinary history and conflicts with Guzman. (Def. 56.1 ¶¶ 28-29; Pl.
56.1 Resp. ¶¶ 28-29.) Trower and Jones-Winter then had a meeting, in which Trower requested
a transfer to a different department; Jones-Winter put Trower in touch with an internal Mount
Sinai job recruiter, and arranged for other administrators to speak with Guzman. (Def. 56.1 ¶¶
30-36; Pl. 56.1 Resp. ¶¶ 30-36.)
Trower asserts that she was discriminated against as an African American person
who does not speak Spanish. According to Trower, Guzman referred to her as “you people,” and
stated that Trower was not like the Hospital’s other registrars. (Pl. 56.1 Resp. ¶¶ 60, 61.)
Trower states that Guzman made comments about Trower’s father being of Venezuelan descent.
(Pl. 56.1 Resp. ¶ 61.) Trower also states that Guzman called her “young lady,” “incompetent”
and “slow,” told her that she was “not like the rest of the girls here,” that “nobody in the
Department liked” her, “you don’t listen,” and “I don’t get you people.” (Def. 56.1 ¶¶ 64-65, 67;
Pl. 56.1 Resp. ¶¶ 64-65, 67.)
Trower asserts that defendant Sullivan commented about Trower’s race, including
the observation that “it was hard for [Trower] being a black African American minority working
amongst Hispanics,” and repeating the phrase “beautiful niggra” on one occasion after Trower
described an incident in which a patient called her a “beautiful niggra.” (Def. 56.1 ¶ 68; Pl. 56.1
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Resp. ¶ 68.) Like Trower, Sullivan identifies as African American. (Def. 56.1 ¶ 5; Pl. 56.1
Resp. ¶ 5.) Two co-workers jokingly repeated the phrase “beautiful niggra” in reference to
Trower. (Def. 56.1 ¶ 68; Pl. 56.1 Resp. ¶ 68.)
On June 10, 2015, Trower filed a charge of discrimination with the EEOC,
asserting that Mount Sinai had discriminated against her on the basis of race. (Pl. 56.1 ¶ 116;
Def. 56.1 Resp. ¶ 116.)
B. Trower’s Disability Leave in 2015, Her Ensuing Termination and the
Termination’s Rescission.
In summer 2015, Trower went on short-term disability leave. (Def. 56.1 ¶ 37; Pl.
56.1 Resp. ¶ 37.) She provided doctor’s notes with return-to-work dates of July 10, September 7
and October 5, respectively, and all requests for leave were granted. (Def. 56.1 ¶¶ 38-40; Pl.
56.1 Resp. ¶¶ 38-40.) On August 21, 2015, Trower filed an amended charge with the EEOC that
asserted disability discrimination. (Pl. 56.1 ¶ 116; Def. 56.1 Resp. ¶ 116.)
While Trower was on disability leave, Sullivan and Jones-Winter had an e-mail
exchange that concerned Trower’s ongoing employment status. On August 11, 2015, JonesWinter e-mailed Sullivan stating that Trower had extended her leave to September 7, 2015. (Pl.
56.1 ¶ 128; Def. 56.1 Resp. ¶ 128.) Sullivan replied, “How long do I have to keep this position
for her? We are extremely short staffed and this ongoing short term disability is impacting our
patient through put.” (Pl. 56.1 ¶ 128; Def. 56.1 Resp. ¶ 128; Schwartz Dec. Ex. C.) JonesWinter replied, “Is she at termination point now? If so, let’s write her up and move forward.”
(Schwartz Dec. Ex. C.) Sullivan replied, “Do we have enough to do so or will this be retracted
and I’ll have to rehire her?” (Id.) In her deposition, Sullivan testified that at the time Trower
began her disability leave, there had been no plan to terminate her, and that her questions to
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Jones-Winter went toward whether Trower’s disciplinary record warranted termination.
(Schwartz Dec. Ex. C. at 91-92.)
Sullivan also testified that because Trower was out on leave, Sullivan wanted
Trower to be terminated so that she could hire someone else. Trower testified that she “needed
the position. I needed a body to fill the position.” (Schwartz Dec. Ex. C at 87.) Counsel asked,
“And since Ms. Trower was out on leave, you needed to terminate her to hire somebody else?”,
to which Sullivan answered, “That’s correct.” (Id. at 87-88.)
Trower did not return to work on the scheduled date of October 5, at which point,
Jones-Winter e-mailed Bell stating that Trower had not shown up for work and inquiring whether
Bell knew of her status; Bell answered that he did not know. (Def. 56.1 ¶¶ 41-43; Pl. 56.1 Resp.
¶¶ 41-43.) On October 23, 2015, Sullivan wrote to Trower stating that if she did not provide
medical documentation by November 2, 2015, she would be terminated. (Def. 56.1 ¶ 44; Pl.
56.1 Resp. ¶ 44.) Sullivan did not receive a response, and Trower was terminated, effective
November 2, 2015. (Def. 56.1 ¶ 45; Pl. 56.1 Resp. ¶ 45.) Trower maintains that she sent all
medical documents to Mount Sinai’s labor relations department. (Def. 56.1 ¶ 46; Pl. 56.1 Resp.
¶¶ 45-46.)
Jones-Winter then reviewed documents in the labor relations department, and
found doctors’ notes on behalf of Trower extending her leave to November 30, 2015, and then to
March 7, 2016. (Def. 56.1 ¶ 48; Pl. 56.1 Resp. ¶ 48.) She immediately rescinded Trower’s
termination, and the Union informed Trower of the rescission. (Def. 56.1 ¶¶ 49-50; Pl. 56.1
Resp. ¶¶ 49-50.)
With her employment status restored, Trower continued to look for positions in
other departments at Mount Sinai, but changes in the hospital’s information technology system
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and confusion over her status left her unable to log into the job-posting system. (Def. 56.1 ¶¶ 5158; Pl. 56.1 Resp. ¶¶ 51-58.) Jones-Winter attempted to fix the issue, but by the time it was
resolved, Trower had begun employment at Bronx Lebanon Hospital. (Def. 56.1 ¶¶ 56, 59; Pl.
56.1 Resp. ¶¶ 56, 59.)
SUMMARY JUDGMENT STANDARD.
Summary judgment “shall” be granted “if 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.” Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit
under the governing law. . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a
motion for summary judgment, the court must “construe the facts in the light most favorable to
the non-moving party and resolve all ambiguities and draw all reasonable inferences against the
movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (quotation marks
omitted).
It is the initial burden of the movant to come forward with evidence on each
material element of his claim or defense, demonstrating that he is entitled to relief, and the
evidence on each material element must be sufficient to entitle the movant to relief in its favor as
a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
If the moving party meets its burden, “the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.”
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “A dispute regarding a
material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting
Anderson, 477 U.S. at 248).
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In employment discrimination suits where the “merits turn on a dispute as to the
employer’s intent,” courts exercise caution in granting summary judgment motions. Holcomb v.
Iona College, 521 F.3d 130, 137 (2d Cir. 2008). Nonetheless, when a discrimination case lacks a
genuine issue of material fact, summary judgment remains available. Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006). Court “should examine the record as a whole” to
determine whether a jury could reasonably find a discriminatory purpose by the employer.
Walsh v. N.Y. City Housing Auth., 828 F.3d 70, 76 (2d Cir. 2016). “No one piece of evidence
need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant's
employment decision was more likely than not motivated in part by discrimination.” Id.
DISCUSSION.
I.
Defendants’ Motion Is Granted as to Trower’s Claims of Discrimination Based on
Race.
Count One of Trower’s complaint alleges that Mount Sinai violated Title VII by
discriminating against her because she is African American. Count Five alleges that all
defendants violated the NYCHRL’s prohibition against workplace discrimination.
Because Trower has not come forward with evidence that would permit a
reasonable trier of fact to conclude that her termination was motivated by racial animus, the
defendants’ summary motion is granted as to these claims.
A. Summary Judgment Is Granted as to Trower’s Title VII Claim.
Trower’s Title VII claim of discrimination is governed by the burden-shifting
analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See
Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015). “Under the McDonnell Douglas framework,
[Trower] bears the burden of establishing a prima facie case of discrimination by showing (1)
[she] belonged to a protected class; (2) [she] was qualified for the position [she] held; (3) [she]
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suffered an adverse employment action; and (4) that the adverse employment action occurred
under circumstances giving rise to an inference of discriminatory intent.” Id. at 435 (quotation
marks omitted). If a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for termination. Patterson v. Cnty. of Oneida,
375 F.3d 206, 221 (2d Cir. 2004). If the employer satisfies this burden, the burden then shifts
back to the plaintiff to demonstrate that the non-discriminatory reasons proffered by the
employer were pretextual. Id.
For the purposes of this motion, there is no dispute that Trower was qualified for
her position and that she was subjected to an adverse employment action. However, defendants
argue that Trower cannot show that she brings her claim as a member of a protected class, or that
her termination occurred under circumstances that give rise to an inference of discriminatory
intent.
Individual defendants with only supervisory control may not be subject to liability
under Title VII. Patterson, 375 F.3d at 221. The Court separately considers her claims of racial
discrimination under Title VII and the NYCHRL.
1. Trower’s Status as a Non-Spanish Language Speaker Does Not Place Her
within a Protected Class.
There is no dispute that, as an African American, Trower is a member of a
protected class. According to defendants, however, the gravamen of Trower’s claim is that she
began to suffer discrimination after Guzman learned that Trower did not speak Spanish.
Defendants point to the following testimony in Trower’s deposition:
Q. Is there any other reason that you believe Ms. Guzman
discriminated against you because of race, other than the fact that
you didn’t speak Spanish?
A. No.
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(Trower Dep. at 40.)
A claim that a plaintiff suffered discrimination solely on the basis of language
abilities does not establish membership in a protected class. See Soberal-Perez v. Heckler, 717
F.2d 36, 41 (2d Cir. 1983) (“Language, by itself, does not identify members of a suspect class.”);
accord Brailsford v. Zara USA, Inc., 2016 WL 626560, at *3 (S.D.N.Y. Feb. 16, 2016)
(concluding that plaintiff was a member of a protected class as an African American, but not as a
non-Spanish speaker) (Schofield, J.); Brewster v. City of Poughkeepsie, 447 F. Supp. 2d 342,
351 (S.D.N.Y. 2006) (“Title VII makes it unlawful for an employer to discriminate against an
individual on the basis of, inter alia, his or her race or national origin. It does not protect against
discrimination on the basis of language.”) (McMahon, J.).
To the extent that Trower purports to be a member of a protected class as a nonSpanish speaker, her language status does not make out a prima facie case that she belongs to a
protected class. However, given that it is undisputed that Trower is African American and that
her status as an African American places her within a protected class, there is sufficient evidence
for a reasonable juror to conclude that she satisfies the first prong of McDonnel Douglas.
Defendants’ motion is therefore granted to the extent that Trower asserts
protected status as a non-Spanish speaker, but denied to the extent that she asserts protected
status as an African American.
2. Trower Has Not Come Forward with Evidence that Would Permit a
Reasonable Juror to Conclude that Her Termination Was Motivated by Racial
Discrimination.
Defendants separately argue that summary judgment should be granted as to
Trower’s claims of race discrimination because there is no evidence showing that she suffered an
adverse employment action as a result of discriminatory animus. They point to a variety of facts
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that, they urge, show that no reasonable trier of fact could conclude that Trower was
discriminated against because she is African American.
“It is well-settled that an inference of discriminatory intent may be derived from a
variety of circumstances, including, but not limited to: ‘the employer’s continuing, after
discharging the plaintiff, to seek applicants from persons of the plaintiff’s qualifications to fill
that position; or the employer’s criticism of the plaintiff's performance in ethnically degrading
terms; or its invidious comments about others in the employee’s protected group; or the more
favorable treatment of employees not in the protected group; or the sequence of events leading to
the plaintiff’s discharge.’” Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)
(quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)).
As noted, in reviewing a motion for summary judgment the Second Circuit has
directed courts to “examine the entire record to determine whether the plaintiff could satisfy
[her] ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff.” Walsh, 828 F.3d at 76. “No one piece of evidence need be sufficient,
standing alone, to permit a rational finder of fact to infer that defendant’s employment decision
was more likely than not motivated in part by discrimination.” Id. Courts deciding a summary
judgment motion must not take a “piecemeal approach” to evidence of discrimination. Id. at 77.
Evidence that would not tend to show discrimination if viewed in isolation may be “one
component” in a “cumulative inquiry” ultimately weighed by a finder of fact. Id. at 77-78. “[I]t
[is] error to require a single piece of evidence to bear the full weight of [plaintiff’s] burden.” Id.
at 78. However, “the more remote and oblique the remarks are in relation to the employer's
adverse action, the less they prove that the action was motivated by discrimination.” Tomassi v.
Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007).
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Because evidence tending to establish discrimination must be considered
cumulatively and not in a piecemeal fashion, the Court reviews the evidence of discrimination
contained in the summary judgment record, and then considers whether, cumulatively, a
reasonable trier of fact could conclude that Trower was terminated on grounds of racial
discrimination.
First, defendants observe that Trower was not the only African American registrar
employed by the Hospital, and that between Trower’s hiring in April 2013 and her termination in
November 2015, Mount Sinai hired six additional registrars, one of whom was African
American.
Second, they argue that Guzman’s allegedly discriminatory comments were race
neutral. Guzman purportedly referred to Trower as “young lady,” “incompetent,” “slow” and
“not like the rest of the girls here.” Trower also asserts that Guzman told her, “I don’t get you
people.” Where a plaintiff’s sole evidence of discriminatory animus turns on facially neutral
remarks, those neutral remarks are insufficient to support a claim of discriminatory motivation.
See, e.g., Wright v. Jewish Child Care Ass’n of NY, 68 F. Supp. 3d 520, 526-27 (S.D.N.Y. 2014)
(statements that plaintiff was not “suitable” and did not “fit” the program were insufficient
evidence of discriminatory animus) (Buchwald, J.). Additionally, the phrase “you people” is
generally not sufficient to show discriminatory motivation, absent additional context suggesting
that the speaker was referring to the plaintiff’s race. Atkins v. Pitney Bowes Mgt. Servs., 2015
WL 144158, at *5 (S.D.N.Y. Jan. 12, 2015) (Koeltl, J.).
Third, defendants argue that any statements concerning Trower’s race do not
support an inference of discriminatory animus. This includes Sullivan’s statement that it “was
hard for [Trower] being a black African minority working amongst Hispanics,” Sullivan’s use of
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the phrase “beautiful niggra” after Trower told her about a patient’s use of the phrase, and two
co-workers’ joking use of the phrase “beautiful niggra.” In deciding whether a remark is
relevant evidence of discrimination, courts consider the role of the speaker in the workplace, the
relationship of the remark to a disputed employment decision, whether a reasonable juror would
consider the remark discriminatory and the context of the remark within the employer’s decisionmaking process. Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Stray or
sporadic comments, standing alone, will not support an inference of discrimination. See, e.g.,
Lugo v. Le Pain Quotidien, 2015 WL 1808558, at *5 (S.D.N.Y. Apr. 13, 2015). In Lugo, the
plaintiff alleged that he was subject to discrimination on the basis of race, national origin and
age. Id. at *4. The evidence of animus was limited to a question about the plaintiff’s national
origin during a meeting, and joking references to the plaintiff as an “old man,” which the
plaintiff testified that he did not find offensive. Id. at *5. Judge Furman concluded that these
statements were not sufficient to support a claim of discriminatory motivation on the part of the
employer. Id. at *5.
Fourth, defendants note that Hispanic employees were disciplined for conduct that
was similar to Trower’s. This included twelve written warnings and seventeen documented
conferences with nine Hispanic employees for conduct that included registration errors,
absences, behavioral issues and dress code violations, all issued by defendant Guzman.
(Guzman Dec. ¶ 3 & Exs. 1-9.) One of those employees was terminated. (Guzman Dec. ¶ 3.)
Evidence that employees outside of a plaintiff’s protected class received similar treatment may
be probative of whether defendants’ actions were motivated by discriminatory animus. See Cai
v. Wyeth Pharms., Inc., 2012 WL 933668, at *8 (S.D.N.Y. Mar. 19, 2012) (application of
allegedly discriminatory policy to employees ranging in age from 23 to 60 weighed against
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inference of age discrimination) (Daniels, J.); Ben-Levy v. Bloomberg, L.P., 2012 WL 2477685,
at *7 (S.D.N.Y. June 26, 2012) (application of allegedly discriminatory policy to employees
younger than 40 weighed against inference of age discrimination) (Forrest, J.).
Fifth, plaintiffs note that Sullivan, the administrative manager of Trower’s
department, identifies as African American, as does Trower. Non-party Jones-Winter also
identifies as African American. (Def. 56.1 ¶ 22; Pl. 56.1 Resp. ¶ 22.) Where an individual
alleged to have acted in a discriminatory fashion is a member of the same protected class as the
plaintiff, that fact can be non-dispositive evidence weighing against an inference of
discriminatory animus. See, e.g., White v. Pacifica Foundation, 973 F. Supp. 2d 363, 380
(S.D.N.Y. 2013) (though not a “conclusive presumption,” a supervisor’s membership in
plaintiff’s protected class tends to “undermine[]” the inference of discriminatory animus)
(Gardephe, J.); Tucker v. New York City, 2008 WL 4450271, at *5 (S.D.N.Y. Sept. 30, 2008)
(“[A]ny inference of race discrimination is further undermined by the fact that all three
superintendents under whom Tucker worked as well as three of his four direct supervisors at the
DOE were also African-American.”) (Lynch, J.).
In opposition to defendants’ motion, Trower states that during her job interview,
Guzman asked where her parents came from, and that when Trower answered Venezuela,
Guzman appeared happy and stated that the country has “beautiful people.” (Pl. 56.1 ¶ 80.)
Later, when Guzman learned that Trower could not speak Spanish, Guzman replied that because
her father is Venezuelan, Guzman should speak the language. (Pl. 56.1 ¶ 88.) Guzman then
began addressing Trower as “young lady,” describing it as a cultural term. (Pl. 56.1 ¶¶ 90, 98.)
Trower notes that Sullivan referred to her as a “beautiful niggra,” and states that
when she complained to Sullivan about Guzman’s treatment, Sullivan referred to Trower as not
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being Hispanic. (Pl. 56.1 ¶ 96, 104-05, 108.) Trower asserts that nearly all of her co-workers
were of Hispanic descent, and that Guzman stated that Trower was different from her coworkers. (Pl. 56.1 ¶ 94.) She also asserts that Guzman disciplined her for “nonsensical and
bogus” reasons, and for conduct that she did not address when undertaken by her Hispanic
colleagues. (Opp. Mem. at 6.)
Viewing the evidence in its full context, and drawing every reasonable inference
in favor of Trower as the non-movant, the Court concludes that no reasonable trier of fact could
find that the Hospital’s termination of Trower was racially motivated. Trower relies principally
on the neutral comments uttered by Guzman. While insulting but neutral comments can be some
evidence of discriminatory intent if the surrounding circumstances support an inference of racial
animus, the record here does not support a finding of such animus.
The only comments related to Trower’s race were Sullivan’s use of the term
“beautiful niggra” or “beautiful negro,” which apparently was repeated by two co-workers, and
Sullivan’s statement that it “was hard for [Trower] being a black African minority working
amongst Hispanics.” The term “beautiful niggra” was uttered in the context of an elderly patient
who apparently used the phrase in reference to Trower. The context of Sullivan’s remark about
Trower’s experience as a person of African American descent working among Hispanics is less
clear, but it does not raise an inference of animus toward Trower. Any inference of animus by
Sullivan is also undermined by the fact that Sullivan, like Trower, identifies as African
American. See White, 973 F. Supp. 2d at 380.
Trower also has not come forward with evidence to support her assertion that she
received disciplinary measures that differed from those placed on her co-workers, including
Hispanic co-workers. See, e.g., Opoku v. Brega, 2016 WL 5720807, at *8 (S.D.N.Y. Sept. 30,
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2016) (plaintiff asserting disparate disciplinary treatment must show that similarly situated
employees outside the relevant protected group received better treatment). Her assertion of
different treatment is conclusory, vague and not supported by citations to the record. By
contrast, the Hospital has come forward with evidence that Hispanic employees were disciplined
in a similar manner as Trower, for participating in similar conduct. (Guzman Dec. ¶ 3 & Exs. 19.)
In addition, the timing of Trower’s termination related to her ongoing medical
leave and the decision makers’ belief that Trower had not submitted necessary documentation
related to medical leave. The comments cited as evidence of racial discrimination were made
prior to the series of events that resulted in Trower’s termination, and were in the context of
disciplinary measures taken by Guzman ad Sullivan. Trower’s evidence of racial discrimination
is both temporally remote from the adverse employment action and outside the context of the
Hospital’s decision-making process leading to her termination, thus weighing further against an
inference of discriminatory intent.
Because Trower has not come forward with evidence that would permit a
reasonable juror to conclude that she was terminated because of her race, the defendants’
summary judgment motion is granted, and her Title VII claim against the Hospital is dismissed.
B. Summary Judgment Is Granted as to Trower’s NYCHRL Claim of Racial
Discrimination.
In addition to Trower’s Title VII discrimination claim against the Hospital, she
brings claims under the NYCHRL alleging that the Hospital, Guzman and Sullivan discriminated
against her on the basis of race. (Compl’t ¶¶ 69-71.)
The First Department has concluded that in a motion for summary judgment, a
discrimination claim under the NYCHRL should be reviewed pursuant to both “the McDonnell
- 16 -
Douglas framework and the somewhat different ‘mixed motive’ framework recognized in certain
federal cases.” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113 (1st Dep’t 2012).
Reviewing Melman and other New York authority, the Second Circuit concluded that the
NYCHRL “simplified the discrimination inquiry: the plaintiff need only show that her employer
treated her less well, at least in part for a discriminatory reason. The employer may present
evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by
discrimination, but it is entitled to summary judgment on this basis only if the record establishes
as a matter of law that discrimination played no role in its actions.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013) (quotation marks omitted).
For the reasons explained, the Court concludes that no reasonable finder of fact
could conclude that racial discrimination played a role in Trower’s termination. As discussed,
Trower’s evidence in support of discriminatory motivation consists principally of demeaning but
facially neutral statements uttered by Gomez. To the extent that Sullivan remarked on Trower’s
racial status, the comments did not reflect discriminatory animus, and were remote from the
decision-making process that resulted in her termination. Trower also has not come forward
with evidence to support her assertion that she was subjected to disciplinary measures that
differed from those administered to other employees outside of her protected class.
Defendants’ motion for summary judgment is therefore granted as to Trower’s
claims of racial discrimination under the NYCHRL.
II.
Defendants’ Motion Is Granted as to Trower’s Hostile Work Environment Claim.
Trower asserts that the Hospital violated Title VII by subjecting her to a hostile
work environment. Drawing every reasonable inference in Trower’s favor, no reasonable jury
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could conclude that Trower was subject to a hostile work environment, and the defendants’
summary judgment motion is therefore granted.
“To establish a prima facie case of hostile work environment, the plaintiff must
show that the discriminatory harassment was sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment,’ and ‘that a
specific basis exists for imputing’ the objectionable conduct to the employer.’” Tolbert v. Smith,
790 F.3d 427, 439 (2d Cir. 2015) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997)). A hostile environment claim has both objective and subjective components: the conduct
at issue must be so severe and pervasive that a reasonable person would find it hostile and
abusive, and the plaintiff must subjectively perceive the environment as abusive. Littlejohn v.
City of N.Y., 795 F.3d 297, 320-21 (2d Cir. 2015). Incidents “must be more than episodic,” and
must be “continuous and concerted.” Tolbert, 790 F.3d at 439. Unless “isolated acts” are “very
serious,” they do not make out a showing of severity and pervasiveness amounting to a hostile
work environment. Id. However, the use of racial slurs by a supervisor can “quickly alter the
conditions of employment,” especially if uttered “in a physically threatening manner.” Rivera v.
Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (quotation marks
omitted).
Based on the summary judgment record, no reasonable trier of fact could
conclude that Trower was subjected to a hostile work environment. She points out that Guzman
“would condescend and ridicule” her “constantly,” including by calling her incompetent and
threatening her job, which resulted in Trower suffering from “depression and anxiety.” (Opp.
Mem. at 7.) Trower also points to Sullivan’s use of the term “beautiful niggra” after Trower
complained about a patient’s use of the term. (Id.) She states that when she complained to
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Sullivan about Guzman, Sullivan replied that Sullivan had taken “a white, red-headed, trolllooking bitch’s job,” an assertion that defendants dispute. (Pl. 56.1 ¶ 97; Def. 56.1 Resp. ¶ 97.)
Drawing every reasonable inference in favor of Trower as the non-movant, she
has not come forward with evidence that could permit a reasonable trier of fact to find in her
favor on a hostile work environment claim. The comments and behavior attributed to Guzman
were racially neutral. “It is axiomatic that the plaintiff also must show that the hostile conduct
occurred because of a protected characteristic.” Tolbert, 790 F.3d at 439.
While Sullivan’s use of the phrase “beautiful niggra” related directly to Trower’s
race, it was uttered in the context of discussions about Trower’s dealings with a patient who
spoke the phrase. As Trower correctly points out, the use of a racial epithet is relevant evidence
of a hostile work environment, and can “quickly alter the conditions of employment” into one of
a hostile environment. Rivera, 743 F.3d at 24. But the phrase’s use here related directly to an
incident involving a patient who used the term. Drawing every reasonable inference in Trower’s
favor, the Court accepts that the phrase made her uncomfortable and embarrassed, and might
even have been uttered in a belittling fashion. Even so, the term’s use in this context does not
rise to a level that would permit a reasonable finder of fact to find a hostile work environment.
Its use was not so pervasive or systematic as to alter the terms of Trower’s employment. Tolbert,
790 F.3d at 439. Similarly, assuming the truth of Trower’s assertion that Jones-Winter claimed
to have taken “a white, red-headed, troll-looking bitch’s job,” such a remark, while offensive,
was not part of a systematic or pervasive environment, and was not made in reference to Trower
or her protected status.
By contrast, in Rivera, the record included testimony that plaintiff was directly
addressed with a highly inflammatory epithet by co-workers and supervisors, threatened with
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violence, told that African Americans should die and told to “get over it” when he complained
about racial harassment. 743 F.3d at 23.
To the extent that Trower also raises a hostile work environment claim under the
NYCHRL, summary judgment is also granted to the defendants. The NYCHRL does not create
separate standards for claims directed to discrimination and a hostile work environment, and only
requires that a plaintiff show that she was treated “less well” than other employees because of a
protected trait. See, e.g., Duarte v. St. Barnabas Hosp., 265 F. Supp. 3d 325, 346-47 (S.D.N.Y.
2017) (Gardephe, J.) (collecting cases). For the reasons explained, Trower has not come forward
with evidence sufficient to permit a reasonable trier of fact to conclude that she was treated less
well on the basis of race.
Defendants’ summary judgment motion is therefore granted as to Trower’s hostile
work environment claim.
III.
Defendants’ Summary Judgment Motion Is Denied as to Trower’s Claims of
Discrimination Based on Disability.
A. Trower Has Come Forward with Some Evidence that She Was Terminated on
the Basis of Disability.
Trower alleges that the Hospital terminated her on the basis of her disability, and
therefore violated the ADA. (Compl’t ¶¶ 61-64.) In moving for summary judgment, the
Hospital argues that Trower cannot make out a prima facie case of discrimination because she
cannot show that her termination was based on disability. The Court concludes that because the
record contains some evidence that Trower’s disability leave may have motivated her supervisors
to terminate her, the Hospital’s summary judgment motion is denied.
The ADA “prohibits discrimination against any ‘qualified individual with a
disability because of the disability of such individual in regard to,’ inter alia, ‘discharge of
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employees.’” Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (quoting 42
U.S.C. § 12112(a)). An employment discrimination claim under the ADA is analyzed under the
McDonnell Douglas burden-shifting framework. To make out a prima facie case of
discrimination based on disability, a plaintiff must show that 1.) the employer was subject to the
ADA, 2.) the employee was disabled within the meaning of the ADA, 3.) the employee was
qualified to perform her job’s essential functions, with or without a reasonable accommodation
and 4.) she suffered an adverse employment due to her disability. Id. Once a plaintiff has
established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. McBride v. BIC Consumer Prod. Mfg. Co., 583
F.3d 92, 96 (2d Cir. 2009). If the burden is satisfied, the plaintiff then must come forward with
evidence that the reasoning offered by the employer was pretextual. Id.
The Hospital asserts that Trower cannot meet the burden under McDonnell
Douglas because she cannot show a causal connection between the adverse employment action
and her disability. The summary judgment record includes evidence that Trower suffers from
depression and anxiety, which has symptoms that include a decreased appetite, nightmares, panic
attacks and nausea. (Pl. 56.1 ¶ 118; Def. 56.1 Resp. ¶ 118.) For the purposes of this motion,
defendants have not disputed that Trower is disabled within the meaning of the ADA.
As noted, Trower went on short-term disability leave in the summer of 2015, and
submitted doctor’s notes with return-to-work dates of July 20, September 7 and October 5, 2015;
the Hospital granted all of Trower’s requests for leave. (Def. 56.1 ¶¶ 38-40; Pl. 56.1 Resp. ¶¶
38-40.) When Trower did not return to work after October 5, Jones-Winter, the director of labor
relations, wrote to Tyrone Bell, an official in Trower’s union, inquiring whether he knew about
Trower’s status; Bell replied that he did not. (Def. 56.1 ¶¶ 41-43; Pl. 56.1 Resp. ¶¶ 41-43.)
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Trower did not respond to Jones-Winter’s e-mail of October 23, 2015 requesting medical
documentation, and was then terminated on November 2. (Def. 56.1 ¶ 45; Pl. 56.1 Resp. ¶ 45.)
Jones-Winter then rescinded the termination after reviewing documents in the
Hospital’s labor relations department, which included doctors’ notes extending Trower’s leave to
November 30, 2015 and March 7, 2016. (Def. 56.1 ¶¶ 48-50; Pl. 56.1 Resp. ¶¶ 48-50.)
According to the Hospital, Trower was terminated because Jones-Winter was
unaware that Trower had submitted doctor’s notes to extend her leave dates, and was not
terminated on the basis of her disability. The Hospital points out that Trower’s termination was
immediately rescinded when Jones-Winter learned of the doctor’s notes.
The hospital has articulated a legitimate, non-discriminatory rationale for
Trower’s termination, based on Jones-Winter’s initial failure to locate documentation
substantiating Trower’s medical leave. The burden then falls on Trower to come forward with
evidence showing that her termination was pretextual. McBride, 583 F.3d at 96.
In opposition, Trower points to communications involving Sullivan and JonesWinter, in which they discussed a desire for Trower to be terminated while she was out on
disability leave. On August 11, 2015, Jones-Winter e-mailed Sullivan stating that Trower had
extended her leave to September 7, 2015. (Pl. 56.1 ¶ 128; Def. 56.1 Resp. ¶ 128.) Sullivan
replied, “How long do I have to keep this position for her? We are extremely short staffed and
this ongoing short term disability is impacting our patient through put.” (Pl. 56.1 ¶ 128; Def.
56.1 Resp. ¶ 128; Schwartz Dec. Ex. C.) Jones-Winter replied, “Is she at termination point now?
If so, let’s write her up and move forward.” (Schwartz Dec. Ex. C.) Sullivan replied, “Do we
have enough to do so or will this be retracted and I’ll have to rehire her?” (Id.) In her
deposition, Sullivan testified that at the time Trower began her disability leave, there had been no
- 22 -
plan to terminate her, and that her questions to Jones-Winter went toward whether Trower’s
disciplinary record warranted termination. (Schwartz Dec. Ex. C. at 91-92.)
Separately, in an e-mail dated on or about August 12, 2015, while Trower was on
disability leave, Jones-Winter wrote the following to Trower:
[U]ltimately we need to determine what you want to do, Kanika.
You are focusing you [sic] current leave situation on Vadesa, but
keep in mind that you were already at a Final w/suspension for
multiple performance issues before you went out on medical leave.
On paper, you are not a strong employee, and I can’t imagine how
this could completely turnaround [sic] when you return from leave.
(Pl. 56.1 ¶ 127; Def. 56.1 Resp. ¶ 127; McEvoy Reply Dec. Ex. 4.)
In her deposition, Sullivan testified that she had input into Trower’s termination,
and that because Trower was out on leave, Sullivan wanted the termination so that she could hire
someone else. Trower testified that she “needed the position. I needed a body to fill the
position.” (Schwartz Dec. Ex. C at 87.) Counsel asked, “And since Ms. Trower was out on
leave, you needed to terminate her to hire somebody else?”, to which Sullivan answered, “That’s
correct.” (Id. at 87-88.)
Viewing the summary judgment record as a whole, and drawing every reasonable
inference in favor of Trower as the non-movant, the Court concludes that a reasonable trier of
fact could conclude that Trower’s disability motivated her termination. A trier of fact must walk
through the evidence related to the proffered non-discriminatory basis for Trower’s termination,
which related to the perceived failure to submit appropriate documentation to substantiate her
leave, from evidence that Trower’s managers and/or supervisors were separately motivated by
the effect, if any, that her disability leave was causing on the workplace. The e-mails of Sullivan
and Jones-Winter, when reviewed along with Sullivan’s deposition testimony, are some evidence
that Trower’s termination was motivated by the effects of her disability leave. A trier of fact
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must decide the credibility of Sullivan’s explanation that her e-mails with Jones-Winter related
to Trower’s disciplinary history and were not referring to her disability status.
The defendants’ summary judgment motion as to Trower’s ADA claim is
therefore denied.
B. Defendants’ Motion for Summary Judgment as to Trower’s Disability
Discrimination Claim under the NYCHRL Is Denied as to Sullivan and the
Hospital, but Granted as to Guzman.
Under the NYCHRL, an employee makes out a prima facie case of disability
discrimination if she suffers from a statutorily defined disability, “and the disability caused the
behavior for which the employee was terminated.” Jacobsen v. N.Y. City Health & Hosp. Corp.,
22 N.Y.3d 824, 834 (2014).
For the reasons explained, the defendants’ summary judgment motion is denied as
to Trower’s disability discrimination claim under the NYCHRL as to the Hospital and Sullivan.
In opposition to the defendants’ motion, Trower has come forward with some evidence that
Sullivan may have been motivated to terminate Trower due to her disability and the
complications caused by her taking disability leave. As noted, in her deposition, Sullivan
testified that she had some input into the decision to terminate Trower. A trier of fact must
weigh the evidence to determine whether Trower’s termination was motivated by discrimination
based on disability, or whether it was due to legitimate, non-discriminatory reasons.
The summary judgment motion is granted, however, as to defendant Guzman.
Trower has pointed to no evidence that Guzman had input into the decision-making process that
led to Trower’s termination. Further, while portions of the record go toward workplace tensions
between Trower and Guzman, including comments and conduct that Trower asserts were racially
discriminatory, the record does not include evidence that goes toward any discriminatory
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comments or conduct by Guzman that related to Trower’s disability. Defendants’ summary
judgment motion is therefore granted as to Trower’s NYCHRL claim against Guzman.
Therefore, defendants’ summary judgment motion is denied as to Trower’s
NYCHRL claim of disability discrimination against the Hospital and Sullivan, but granted as to
Trower’s claim against Guzman.
IV.
Defendants’ Summary Judgment Motion Is Granted as to Trower’s Claim of
Retaliation under Title VII, but Denied as to Her Retaliation Claim under the ADA
and the NYCHRL.
Trower asserts that the Hospital retaliated against her under Title VII, the ADA,
and the NYCHRL. (Compl’t ¶¶ 58-60, 65-68, 72-74.) For the reasons that will be explained, the
Court concludes that no reasonable trier of fact could find defendants liable for retaliation under
Title VII, but that a trier of fact must decide her claims of retaliation under the ADA and the
NYCHRL. Defendants’ summary judgment motion is therefore granted in part and denied in
part as to Trower’s retaliation claims.
A. Defendants’ Summary Judgment Motion Is Granted as to Trower’s Claim of
Title VII Retaliation.
To make out a prima facie case of retaliation under Title VII, a plaintiff must
show “‘(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action.’” Shultz v. Congregation Shearith Israel of City of
New York, 867 F.3d 298, 309 (2d Cir. 2017) (quoting Littlejohn, 795 F.3d at 316). If the
plaintiff establishes a prima facie case, the burden shifts to the employer, who must then
articulate a legitimate, non-retaliatory reason for the adverse action. Kirkland v. Cablevision
Sys., 760 F.3d 223, 225 (2d Cir. 2014). If the employer carries that burden, the burden shifts
- 25 -
back to the plaintiff to demonstrate by competent evidence that the legitimate reasons offered by
the employer was pretextual. Id.
A plaintiff must show that retaliation was a “but-for” cause that motivated the
adverse employment action. Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 90 (2d
Cir. 2015). This does not require proof that retaliation was the employer’s only motive, “‘but
only that the adverse action would not have occurred in the absence of the retaliatory motive.’”
Id. at 91 (quoting Zann Kwan v. Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir. 2013)).
A temporal proximity between the protected activity and the adverse employment
action may support an inference of retaliatory purpose, but the proximity “‘must be very close.’”
Abrams v. Dep’t of Public Safety, 764 F.3d 244, 254 (2d Cir. 2014) (quoting Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam)). There is “no bright line” for the outer
limits of when “a temporal relationship is too attenuated to establish a causal relationship . . . .”
Id. (quotation marks omitted). However, temporal proximity alone is not enough to establish
retaliatory purpose, and “‘a plaintiff must come forward with some evidence of pretext in order
to raise a triable issue of fact.’” Id. at 254-55. Abrams concluded that, without more, a fivemonth window between the plaintiff’s protected activity and the alleged retaliation was
insufficient to make a showing of pretext. Id.
Trower asserts that she engaged in protected activity that included an oral
complaint to Sullivan in 2014 about Guzman’s allegedly discriminatory treatment of her, and the
filing of her EEOC charge on June 10, 2015. In moving for summary judgment, defendants urge
that no reasonable trier of fact could find a causal connection between Trower’s protected
activity and her termination.
- 26 -
In November 2014, Trower orally complained to Sullivan about her purported
mistreatment by Guzman. (Pl. 56.1 ¶ 96; Def. 56.1 ¶ 96; Trower Dep. 47-48.) Trower testified
in her deposition that she told Sullivan she was being mistreated by Guzman because she was an
African American. (Trower Dep. 48.) According to Sullivan, however, Trower did not
complain that she was being treated differently on the basis of race, and complained instead
about Guzman’s use of the phrase “young lady.” (Sullivan Dep. 40.) Sullivan testified that she
could only “vaguely recall” the meeting. (Sullivan Dep. 39.) According to Trower, Sullivan
then responded that she knew Trower was a minority within her department, that she was a
minority herself, and that Sullivan had taken “a white, red-headed, troll-looking bitch’s job who
trained her.” (Trower Dep. 49.) Sullivan disputes that she made these comments. (Sullivan
Reply Dec. ¶ 2.)
It is undisputed that Sullivan then spoke to Guzman about her treatment of
Trower, and instructed her not to use the term “young lady.” (Pl. 56.1 ¶ 98; Def. 56.1 Resp. ¶
98.) Guzman responded that the term was cultural, and was how Guzman addressed people in
her home country. (Pl. 56.1 ¶ 98; Def. 56.1 Resp. ¶ 98.) According to Trower, Guzman’s
treatment of her then became worse. (Pl. 56.1 ¶ 101.) However, the only evidence that Trower
cites in support of this assertion is deposition testimony in which she confirmed the contents of
her complaint. (Trower Dep. 53.)
According to Trower, sometime in the summer of 2015, Sullivan told Trower that
she was always complaining, and asked her why everything was a complaint. (P. 56.1 ¶ 113.) In
a reply declaration, Sullivan disputes that she made such comments. (Sullivan Reply Dec. ¶ 2.)
On June 10, 2015, Trower filed her charge of racial discrimination against the
Hospital with the EEOC. (Pl. 56.1 ¶ 116; Def. 56.1 Resp. ¶ 116.) Trower asserts that in a June
- 27 -
12, 2015 meeting with Jones-Winter, she complained that Guzman was discriminating against
her because of her race. (Pl. 56.1 ¶ 117; Trower Dep. 183.) Defendants assert that Trower did
not mention discrimination. (Def. 56.1 Resp. ¶ 117.) Trower also asserts that when JonesWinter learned about Trower’s EEOC filing, Jones-Winter asked why Trower hadn’t come to her
first. (Pl. 56.1 ¶ 137.)
It is undisputed that on October 8, 2015, an individual named Jeff Cohan e-mailed
Trower’s EEOC complaint to Sullivan, stating, “just to brighten your day,” and that Sullivan
wrote back, “Awww you shouldn’t have.” (Pl. 56.1 ¶ 141; Def. 56.1 Resp. ¶ 141.)
In deciding the defendants’ motion, the Court assumes as true the factual
assertions made by Trower, including those disputed by the defendants. Thus, the Court assumes
that Sullivan uttered the comments that Trower attributed to her in November 2014 and in the
summer of 2015, and that after filing an EEOC charge, Trower complained to Jones-Winter in
June of 2015 about discrimination by Guzman. Even assuming the truth of Trower’s version of
events, no reasonable trier of fact could find a causal connection between Trower’s complaints of
racial discrimination and her termination in November 2015.
First, the timing of Trower’s complaints and the adverse employment action is
attenuated. Her oral complaints to Sullivan in November 2014 pre-date her termination by a
year. The filing of her EEOC charge in June 2015 pre-dated her termination by slightly less than
five months. In Abrams, the Second Circuit concluded that, without more, a five-month window
between protected the activity and an adverse employment action was insufficient to show that
the adverse action was made on pretextual grounds. 764 F.3d at 254-55. Temporally, the
October 8, 2015 e-mails between Cohan and Sullivan are closer in time to the adverse
employment action, but that exchange shows little more than awareness of Trower’s already-
- 28 -
existing complaint. While the apparently lighthearted tone of the exchange may not have been
appropriate, it does not raise an inference of retaliatory motivation on Sullivan’s part.
Second, as has been discussed, during the time between Trower’s June 2015
EEOC charge and her November 2015 termination, Trower went on disability leave. The
summary judgment record includes evidence that Trower was terminated as a result of issues
related to her disability leave: defendants maintain that the termination was an innocent,
immediately corrected error based on paperwork confusion, while Trower points to comments
that she contends reflect a discriminatory motivation. Aside from the existence of complaints
that pre-date her termination by five to twelve months, the record does not contain evidence of
protected activity in response to racial discrimination or retaliatory motivation that relates to
Trower’s termination.
Third, the disciplinary actions taken against Trower after her complaints are
consistent with disciplinary measures that pre-dated her complaints. Prior to complaining to
Sullivan in November 2014 about her treatment by Guzman, Trower received three warnings and
attended three documented conferences. After complaining to Sullivan, Trower received two
warnings and attended three documented conferences. (Trower Dep. 54, 56, 58, 60, 69, 70, 82,
84, 87, 90, 114 & Exs. 5-8, 10-14, 16, 20.) In Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001), the Second Circuit concluded that where the “gradual adverse job
actions began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.” See also Alejandro v. New York City Dep’t of Educ., 2017 WL
1215756, at *23 (S.D.N.Y. Mar. 31, 2017) (“[W]hen – as here – a retaliation claim is predicated
principally upon timing, adverse employment actions that were both part, and the ultimate
product, of an extensive period of progressive discipline which began . . . months prior to the
- 29 -
employee’s protected activities, a reasonable inference of retaliation cannot be drawn.”)
(quotation marks omitted) (Nathan, J.). The Hospital’s ongoing disciplinary measures, which
pre-dated Trower’s complaints, are inconsistent with a retaliatory motive.
Fourth, certain of the facts raised by Trower in her opposition memo are
conclusory, speculative and lack support in the record. To defeat a motion for summary
judgment, “[a]n opposing party’s facts must be material and of a substantial nature, not fanciful,
frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely
suspicions.” Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 n.14 (2d Cir.
1981). Trower’s opposition memorandum states, without support, that Sullivan and JonesWinter exchanged e-mails about ways to terminate Trower “[a]s soon as [she] made her
Complaint to the EEOC . . . .” (Opp. Mem. at 13.) Trower also asserts that her inability to log in
to the Hospital’s internal job-placement system was a retaliatory action taken in response to her
complaints of discrimination. (Id.) Because these assertions are not supported by the summary
judgment record, the do not defeat defendants’ motion for summary judgment.
Because no reasonable trier of fact could find that Trower’s termination was
based on a retaliatory motivation, defendants’ motion for summary judgment on Trower’s claim
of Title VII retaliation is therefore granted.
B. Defendants’ Summary Judgment Motion Is Denied as to Trower’s Claims of
Retaliation under the ADA and the NYCHRL.
“Claims for retaliation under the ADA are analyzed under the same burdenshifting framework established for Title VII cases.” Widomski v. State Univ. of New York
(SUNY) at Orange, 748 F.3d 471, 476 (2d Cir. 2014) (quotation marks and alteration omitted).
An employee’s request for a reasonable accommodation is protected activity under the ADA.
Weixel v. Bd. of Educ of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002). “[A] reasonable
- 30 -
accommodation includes requests for leave due to a plaintiff’s disability.” Clark v. Jewish
Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 262 (S.D.N.Y. 2015) (Karas, J.).
The NYCHRL makes it unlawful to “retaliate or discriminate in any manner
against any person because such person has . . . opposed any practice forbidden under this
chapter.” N.Y.C. Admin. Code § 8–107(7). “Thus, to prevail on a retaliation claim under the
NYCHRL, the plaintiff must show that she took an action opposing her employer’s
discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely
to deter a person from engaging in such action.” Mihalik, 715 F.3d at 112 (internal citations
omitted). An employee’s opposition can include situations where she expressed disapproval of
discriminatory conduct, and the employer’s retaliatory response can be actionable if it was
reasonably likely to deter a person from engaging in the protected activity. Id. at 112 (collecting
cases). The totality of circumstances must be considered, and “even a single comment may be
actionable in the proper context.” Id. at 113.
As has been discussed, the summary judgment record includes e-mails between
Sullivan and Jones-Winter discussing the inconveniences caused by Trower’s disability leave,
and Sullivan’s desire to terminate Trower. Sullivan testified that she had not considered
terminating Trower prior to her taking disability leave.
Additionally, on August 21, 2015, Trower filed an amended charge of
discrimination with the EEOC, which asserted that she had been discriminated against on the
basis of disability. (Pl. 56.1 ¶ 116; Def. 56.1 Resp. ¶ 116.) The temporal nexus between the
amended charge of discrimination and Trower’s termination is slightly more than two months,
which is significantly closer than the protected activity related to Trower’s claims of racial
discrimination. Moreover, as just discussed, there is some evidence in the record that a trier of
- 31 -
fact could construe as reflecting a desire to see Trower terminated based on her use of disability
leave.
Construing the record in the light most favorable to Trower as the non-movant,
there is evidence that could lead a reasonable trier of fact to conclude that Trower’s termination
was motivated in part by retaliation against her for complaining of disability discrimination.
Trower’s EEOC charge asserting disability discrimination was filed ten days after Sullivan and
Jones-Winter exchanged e-mails about terminating Trower, including Jones-Winter’s suggestion
to “write her up and move forward” and Sullivan’s reply, “Do we have enough to do so or will
this be retracted and I’ll have to rehire her?” (Schwartz Dec. Ex. C.) Construing the record in
the light most favorable to Trower as non-movant, a reasonable trier of fact could weigh the
evidence and conclude that retaliatory motives were a “but-for” cause of the adverse
employment action. A trier of fact needs to weigh the witnesses’ explanations of the e-mails,
draw any resulting inferences and decide whether the proffered reasons for Trower’s termination
were pretextual.
However, to the extent that Trower brings retaliation claims under the NYCHRL
against Guzman, defendants’ summary judgment motion is granted. Trower has not pointed to
any evidence that Guzman played a role in the decision making process related to Trower’s
termination, or that she expressed any retaliatory motivation related to Trower’s complaints.
Because the record does not establish as a matter of law that Trower was
terminated for the proffered non-retaliatory reasons, the defendants’ motion for summary
judgment is denied as to Trower’s claim of retaliation under the ADA, and her claim under the
NYCHRL related to protected activity concerning her disability. Summary judgment is granted,
however, as to the NYCHRL retaliation claim against Guzman.
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V.
Defendants’ Summary Judgment Motion Is Granted as to Trower’s Aiding and
Abetting Claim under the NYCHRL.
Trower asserts that Guzman and Sullivan violated the NYCHRL by aiding and
abetting acts of discrimination. Under the NYCHRL, it is unlawful “for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden under this chapter, or to attempt to
do so.” Admin. Code N.Y.C. § 8–107(6). An individual may not be liable for aiding and
abetting in her own discriminatory conduct, but only for assisting another party in violating the
law. Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 367-68 (S.D.N.Y. 2012)
(Oetken, J.). An aiding and abetting claim is viable only where an underlying violation has taken
place. Kellman v. Metro. Transp. Auth., 8 F. Supp. 3d 351, 393 (S.D.N.Y. 2014) (Batts, J.).
The remaining NYCHRL claims allege that Sullivan and the Hospital
discriminated against Trower on grounds of disability, and that Sullivan and the Hospital
retaliated against her for filing an EEOC charge complaining of disability discrimination on
August 21, 2015. Trower has not pointed to evidence that Guzman participated in the alleged
disability discrimination or retaliated against Trower’s protected activity related to the EEOC
charge. As to Sullivan, Trower’s opposition to defendants’ motion relies heavily on Sullivan’s
statements related to disability leave. Sullivan cannot be liable for aiding and abetting her own
allegedly discriminatory conduct. Malena, 886 F. Supp. 2d at 367-68.
Because no reasonable trier of fact could find Sullivan or Guzman liable for
aiding and abetting the remaining NYCHRL claims, defendants’ summary judgment motion is
granted as to the aiding and abetting claim.
CONCLUSION.
Defendants’ motion for summary judgment is granted in part and denied in part.
The Clerk is directed to terminate the motion. (Docket # 37.) The surviving claims in this action
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assert disability discrimination and retaliation for complaining of disability discrimination under
the ADA against Mount Sinai, and disability discrimination and retaliation under the NYCHRL
against Mount Sinai and Sullivan.
There will be a pretrial conference on September 21, 2018 at 12:30 p.m.
SO ORDERED.
Dated: New York, New York
September 6, 2018
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