Salter v. Catholic Health System

Filing 51

DECISION AND ORDER. Defendant's Motion for Summary Judgment 42 is GRANTED, Plaintiff's Motion for Summary Judgment 41 is DENIED, and Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter ju dgment and close this case. The Clerk is also directed to correct the docket to reflect that entry # 48 is "Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment" and not a separate motion. SO ORDERED. A Copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 9/10/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TONYA SALTER,
Plaintiff,
Case # 15-CV-322-FPG
v.
DECISION AND ORDER
CATHOLIC HEALTH SYSTEM,
Defendant.

INTRODUCTION
Plaintiff Tonya Salter (“Plaintiff”) commenced this pro se action alleging racial
discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e, et seq. (“Title
VII”) and the New York Human Rights Law, N.Y. Exec. L. §§ 290-297, (“NYHRL”). ECF No. 1.
After discovery and before the deadline for filing dispositive motions, Plaintiff and
Defendant both filed Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure
56 on essentially the same issue: whether Plaintiff was terminated from her employment based on
her race. ECF Nos. 41, 42.1 After considering the moving papers, the record evidence, and the
applicable law, the Court grants Defendant’s Motion for Summary Judgment and dismisses the
Complaint in its entirety.

1
Plaintiff’s opposition to Defendant’s motion was incorrectly captioned as a “Notice of Motion” and
therefore docketed as a new motion for summary judgment on February 10, 2017. See ECF No. 48. The
Clerk of Court shall correct the docket sheet to reflect that this entry is “Plaintiff’s Response in Opposition
to Defendant’s Motion for Summary Judgment” and not a separate motion. The Court has reviewed
Plaintiff’s opposition (ECF No. 48) and her original moving papers (ECF No. 41) in their entirety.

BACKGROUND2
Plaintiff contends that she was terminated from her employment with Catholic Health
Systems (“CHS” or “Defendant”) because she is African-American. This is the sole basis of her
Complaint in this action. ECF No. 1 at 6.
Plaintiff began her employment with CHS in September 2003 as a registered nurse (“RN”)
at Sisters of Charity Hospital. She was terminated from her employment in March 2014. At all
times during her employment, Plaintiff was required to comply with CHS’s written policies and
procedures as relevant to medical treatment to patients.
In October 2013, Plaintiff was responsible for examining patients to monitor for pressure
ulcers or other skin disorders. On October 16, 2013, Plaintiff failed to assess a patient with a
pressure ulcer to her sacrum. More specifically, she documented that she examined the patient and
no pressure ulcer was present. After the patient’s daughter reported the pressure ulcer, a nurse
manager reviewed the patient’s documentation and observed that the completed “skin record”
reported that the patient’s skin was intact.
Plaintiff does not dispute the omission, but rather contends that numerous medical staff
members missed the skin ulcer, including emergency room (“ER”) staff and two other RNs that
similarly documented no skin issues for that patient. Defendant’s Exhibit “C” (ECF No. 42-4)
shows that those individuals were also interviewed regarding the incident. Plaintiff admitted to the
nurse manager that she did not actually “see” the patient, and told her that she was distracted due
to personal issues. Id.
A Corrective Action Report dated October 22, 2013 indicated that Plaintiff violated policy
HR 11-PC M(9) (jeopardizing the health of a patient through neglect of duty and violation of safety

2
The following material facts, drawn from the parties’ Local Civil Rule 56 Statements and evidentiary
submissions, are undisputed unless otherwise noted.
2

rules) and HR 11-PC L(4) (failure to carry out assigned duties and responsibilities). Plaintiff was
issued a “Final Warning” and was given a 12-month re-evaluation period to “meet the hospital[’]s
expectations, demonstrating understanding and adherence to policies and procedures . . . . “ ECF
No. 42-5.3 Plaintiff was also removed from her role in the skin unit for 12 months. The Corrective
Action Report and Final Warning advised Plaintiff that she was subject to “progressive disciplinary
action,” should the policy violations continue. Plaintiff signed the Final Warning and did not object
to the level of discipline she received. Approximately five months later, Plaintiff violated hospital
policy HR 11-PC again while her performance was subject to review/improvement under the terms
of the Final Warning.
CHS has a written policy—LAB-TRANS-201 (“CHS Transfusion Policy”)—that governs
the administration of blood and blood products. ECF No. 42-6. As an RN, Plaintiff had to comply
with the CHS Transfusion Policy. Among other things, the CHS Transfusion Policy requires that
an order for blood or blood components must be made by a physician, physician assistant, nurse
practitioner, licensed independent practitioner, or other appropriately-credentialed medical staff;
and that consent for a transfusion must be obtained from the patient before acquiring the blood
product from the laboratory. Id. It further provides that a Blood Product Release form must have
two RN/LPN/physician signatures to verify that the above transfusion order and consent have been
obtained and documented. Id. The Blood Product Release form contains two signature blocks,
which verify “both patient consent and physician order for the product indicated below . . . .” ECF
No. 42-7.

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Plaintiff believes she should not have received a Final Warning because the CHS Human Resources Policy
and Procedure (ECF No. 42-13) provides for intermediate corrective measures before a Final Warning is
issued. The policy document is clear, however, that a “serious offense,” such as jeopardizing the health or
safety of a patient through neglect of duty, “will generally lead to a Final Written Warning or Immediate
Discharge, even on the first offense.” Id. at 11.
3

On March 24, 2014, Plaintiff was assigned to assist a patient who required a blood
transfusion. An order for a blood transfusion was written for the patient that morning, was
documented, and existed in the patient’s medical record. The clinical transfusion record indicates
that Plaintiff began the transfusion at approximately 2:55pm, yet the patient did not give consent
before the first unit of blood was administered. Nonetheless, Plaintiff completed the Blood Product
Release form indicating that she verified patient consent and the physician order. In addition to
Plaintiff’s signature, the signature of a second nurse, Mary Jane Abrams, was also present on the
Blood Product Release form. The patient later provided a written Consent for Transfusion of Blood
sometime on March 24, 2014. ECF No. 42-9. Plaintiff admits that the patient did not consent before
she administered the first unit of blood.
A nurse manager interviewed Plaintiff the following day. She admitted that she did not
check for or receive consent from the patient, but disputes the characterization that she “falsely”
verified the existence of patient consent. ECF No. 48 at 14, ¶ 45.
Plaintiff now claims that the patient, in need of surgery, had multiple blood transfusions
days earlier and appears to suggest that such consent could be waived based on emergent
circumstances or upon ER admission. ECF No. 48 at 14.4 Nonetheless, Plaintiff’s own sworn
testimony and the undisputed proof in the record unequivocally demonstrates that patient consent
was not obtained at the time of the transfusion or when the verification was signed. She further
asserts that she was not the only medical staff member who failed to obtain or verify consent. Id.
Both Plaintiff and Mary Jane Abrams were disciplined as a result of the patient blood
transfusion incident—Ms. Abrams received a Corrective Action Report and Written Warning, and
Plaintiff was terminated because the incident took place five months after her Final Warning and

4
Plaintiff does not claim that such circumstances actually existed at the time and submits no proof to that
end.
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while her performance was still subject to review/improvement. Ms. Abrams was not terminated
and was not under a Final Warning for hospital policy violations at the time of the incident.
Plaintiff filed an administrative charge with the Equal Employment Opportunity
Commission (“EEOC”) in August 2014. On January 22, 2015, the EEOC issued Plaintiff a
Determination Letter and a Right to Sue Letter. Specifically, the Determination Letter indicated
that Plaintiff admitted to being terminated for failing to obtain written patient consent for a blood
transfusion while “completing a one year probation following a previous incident that resulted in
a final warning.” ECF No. 1, Ex. B at 8-9. The EEOC concluded that there was a legitimate, nondiscriminatory reason for Plaintiff’s discharge and that no further investigation into her allegations
was warranted. Id.
Plaintiff states that Katie Schreiner, a nurse manager, was the only person that allegedly
discriminated against Plaintiff or committed any unlawful employment practice against her. No
other supervisors or co-workers engaged in any discriminatory acts. Ms. Schreiner never
commented about Plaintiff’s race, used a racial slur, or referenced any other co-worker’s race.
Plaintiff does not dispute that Ms. Schreiner never engaged in any overt acts of discrimination, but
states that she was “singled out” by Ms. Schreiner because the “majority of [her] write-ups came
from Katie Schreiner.” ECF No. 47 at 38-39.
Plaintiff did not make a formal complaint with Sisters Hospital or CHS regarding the
alleged discrimination or unfair treatment from Ms. Schreiner at any point during her employment.
DISCUSSION
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together

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with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986); see Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). Regarding materiality, “[o]nly disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson, 477
U.S. at 248. More importantly, “summary judgment will not lie if the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
Thus, the Court’s function in deciding a summary judgment motion is not “to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249. When a properly supported motion for summary judgment is made, the
adverse party “must set forth specific facts showing that there is a genuine issue for trial. Id. at
250.
As the Second Circuit observed in Duse v. Int’l Business Machines Corp., 252 F.3d 151,
158 (2d Cir. 2001), “[i]n assessing the record to determine whether there is a genuine issue as to
any material fact, the court is required to resolve all ambiguities and draw all factual inferences in
favor of the party against whom summary judgment is sought.” 252 F.3d 151, 158 (citing e.g.,
Anderson, 477 U.S. at 255). However, “[i]f the undisputed facts reveal that there is an absence of
sufficient proof as to one essential element of the claim, any factual disputes with respect to other
elements of the claim become immaterial and do not suffice to defeat a motion for summary
judgment.” Duse, 252 F.3d at 158 (citing e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992), cert. denied, 508 U.S. 909 (1993);
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986) (the existence of a factual issue will

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not suffice to defeat a motion for summary judgment where that issue is not material to the ground
of the motion), cert. denied, 480 U.S. 932 (1987)).
As is the case here, pro se submissions must be read liberally and interpreted to “raise the
strongest arguments that they suggest.” Burgos v. Hopkins, 14 F. 3d 787, 790 (2d Cir. 1994)
(internal citation omitted). However, “[p]roceeding pro se does not otherwise relieve a litigant of
the usual requirements of summary judgment, and a pro se party’s bald assertions unsupported by
evidence, are insufficient to overcome a motion for summary judgment.” Rodriguez v. Hahn, 209
F. Supp. 2d 344, 348 (S.D.N.Y. 2002) (internal citation omitted).
II.

McDonnell Douglas Framework
Plaintiff alleges intentional employment discrimination based on her race in violation of

Title VII and Section 296 of the NYHRL. Because the analysis of NYHRL claims parallels the
analysis of Title VII claims, the Court considers them “in tandem.” Leopold v. Baccarat, Inc., 174
F.3d 261, 264 n. 1 (2d Cir. 1999); see also Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d
Cir. 2000) (citing cases), cert. denied, 540 U.S. 811 (2003).
Title VII makes it unlawful “for an employer . . . to discharge any individual, or otherwise
to discriminate against any individual . . . because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e–2(a)(1). Claims brought under this provision are examined
under the burden-shifting analysis the Supreme Court articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–03 (1973). See, e.g., Weinstock, 224 F.3d at 42; Feingold v. New York,
366 F.3d 138, 152 (2d Cir. 2004).
Under this framework, a plaintiff must first establish a prima facie case of discrimination
by demonstrating that: (1) she is a member of a protected class; (2) she was qualified for the
position; (3) she suffered an adverse employment action; and (4) the adverse employment action

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occurred under circumstances giving rise to an inference of discrimination. See Terry v. Ashcroft,
336 F.3d 128, 137–38 (2d Cir. 2003); Collins v. N.Y. City Trans. Auth., 305 F.3d 113, 118 (2d Cir
.2002). The plaintiff’s burden of proof at the prima facie stage is “de minimis.” Weinstock, 224
F.3d at 42.
Once the plaintiff has established a prima facie case of discrimination, the burden shifts to
the employer “to articulate some legitimate, nondiscriminatory reason” for the employment action.
McDonnell, 411 U.S. at 802. In other words, “[t]he defendant must clearly set forth, through the
introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact,
would support a finding that unlawful discrimination was not the cause of the employment action.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks omitted).
Upon the defendant’s proffer of a legitimate non-discriminatory reason for its employment
action, “the presumption of discrimination arising with the prima facie case drops from the picture
. . . [and] the plaintiff must then establish that the defendant’s proffered reason is a mere pretext
for actual discrimination.” Weinstock, 224 F.3d at 42 (citing St. Mary’s Honor Ctr., 509 U.S. at
510-11).
To demonstrate pretext, the plaintiff must produce “sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and
that more likely than not discrimination was the real reason for the employment action.”
Weinstock, 224 F.3d at 42 (quotation marks and alterations omitted).
III.

Analysis
Defendant moves for summary judgment on the grounds that Plaintiff fails to state a prima

facie case of discrimination, and, alternatively, because CHS had a legitimate, non-discriminatory

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reason for her termination. ECF No. 42-15 at 18-19. For the following reasons, the Court finds that
Defendant is entitled to the requested relief.
Defendant does not contest that Plaintiff is a member of a protected class, was qualified for
her position, and suffered an adverse employment action. ECF No. 42-15 at 19-20. Thus, the issue
is whether Plaintiff has demonstrated that her termination occurred under circumstances giving
rise to an inference of discrimination for purposes of establishing her prima facie case.
It is undisputed that Plaintiff committed multiple policy violations warranting disciplinary
actions. She therefore attempts to raise an inference of discrimination by taking issue with
Defendant’s dissimilar treatment of Ms. Abrams, who also violated hospital a policy violation with
regard to the blood transfusion incident, and with Ms. Schreiner’s alleged unfair treatment of
Plaintiff. More specifically, Plaintiff claims that Ms. Schreiner told Plaintiff to “keep her opinions
to herself,” and did not allow Plaintiff to leave work early. ECF No. 41 at 7. The Court finds that
this is insufficient to meet her burden of establishing a prima facie case.
Plaintiff’s conclusory allegations are not enough to withstand summary judgment. When
considering whether a plaintiff has shown that she was subjected to disparate treatment, i.e., treated
“less favorably than a similarly situated employee outside [her] protected group,” the Second
Circuit requires that the plaintiff demonstrate that she was “similarly situated in all material
respects” to the individuals with whom she seeks to compare herself. Graham v. Long Island R.R.,
230 F.3d 34, 39 (2d Cir. 2000). Here, Plaintiff fails to offer any details about the employee she
alleges was treated more favorably, Ms. Abrams, let alone any evidence demonstrating that they
were similarly situated. Further, she does not dispute that, although Ms. Abrams and Plaintiff
violated the same policy, Plaintiff was under a Final Warning at the time whereas Ms. Abrams was
not, and that both nurses were disciplined as a result of the incident. ECF No. 48 at 16-18. See

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generally Desir v. BOCES Nassau Cnty., 803 F. Supp. 2d 168, 180 (E.D.N.Y. 2011), aff’d, 469 F.
App’x 66 (2d Cir. 2012) (to be “similarly situated,” the comparator “must have engaged in conduct
similar to the plaintiff’s without such differentiating or mitigating circumstances that would
distinguish their conduct or the appropriate discipline for it”). Plaintiff has not met her minimal
burden of showing that she was treated differently than a similarly situated employee of a different
race.
Moreover, “feelings and perceptions of being discriminated against are not evidence of
discrimination,” and therefore Plaintiff’s speculation that Ms. Schreiner targeted her based on her
race is insufficient to support an inference of discrimination. See Bickerstaff v. Vassar Coll., 196
F.3d 435, 456 (2d Cir. 1999). Plaintiff testified that the majority of her “write-ups” came from Ms.
Schreiner and that she felt “singled-out.” ECF No. 47 at 38-39. Plaintiff also testified that Ms.
Schreiner made a sarcastic remark regarding Plaintiff’s personnel file, which Plaintiff felt was
directed at her because she was the only African-American in the room at the time. Id. at 65-66.
But Plaintiff never voiced her concerns about the alleged discrimination to anyone at Sisters
Hospital or CHS, see id., and did not seek a “Fair Treatment Review” as provided by under CHS’s
Human Resource Policy. Id. at 41-42. Finally, Plaintiff’s speculation is further underscored by her
testimony regarding Ms. Schriener not allowing Plaintiff to leave early from a shift:
Q:

In any way did she—is there anything other than your belief or your
speculation that suggests that [Ms. Schriener] telling you to
[continue a shift] was because you are African-American?

A:

When I add up everything, that’s what it leads me to.

ECF No. 47 at 75.
Although Plaintiff’s burden at this stage of the analysis is “not onerous,” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), she nonetheless falls short of the prima facie
requirements because she offers no more than conjecture and speculation in support of her claim.
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The Second Circuit has held that an adverse employment action can be shown to have occurred
under circumstances giving rise to an inference of discrimination through evidence of, inter alia,
“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.” Littlejohn v. City of N.Y., 795 F.3d 297, 312 (2d Cir. 2015) (citation and
quotation marks omitted). Simply put, Plaintiff has provided no such evidence here. Because
Plaintiff has not established a prima facie case of discrimination, summary judgment in
Defendant’s favor is appropriate.
Even though the Court need not reach the rest of the McDonnell Douglas analysis, it briefly
addresses the Defendant’s alternative argument that CHS had a legitimate, non-discriminatory
reason for Plaintiff’s termination.
Here, Plaintiff does not dispute that she violated hospital policy. Rather, she contends that
she should have received another written warning in lieu of her termination. ECF No. 48 at 16-17,
¶ 46. Plaintiff’s reading of CHS Policy HR-011-PC is incorrect. It explicitly states that policy
violations involving patient safety are punishable by a Final Warning and/or Termination,
including in the first instance. In any event, Plaintiff was given the safeguard of a Final Warning
with a 12-month probationary period after her first serious infraction, yet committed another
violation within five months. She was therefore afforded the benefit of CHS’s progressive
disciplinary scheme, contrary to the current allegations.5 Plaintiff’s performance deficiencies,
including one serious policy violation during her probationary period of re-evaluation, are

5
Plaintiff also testified that that she had eight violations of the CHS attendance policy by February 2013
for tardiness or absenteeism. ECF No. 47 at 46.

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legitimate, non-discriminatory reasons for her termination. See, e.g., Bong Chul Kim v. Bogopa
Servs. Corp., No. 15CV2174, 2017 WL 3242253, at *5 (E.D.N.Y. July 28, 2017) (the defendantemployer articulated a legitimate, non-discriminatory reason for termination where the plaintiff
received multiple warnings for attendance, tardiness, and conduct violations, including an
attendance violation while on a “last chance warning”).
After a defendant sets forth a non-discriminatory justification, the burden returns to the
plaintiff to demonstrate that the proffered reason is pretextual. The defendant is entitled to
summary judgment “unless the plaintiff can point to evidence that reasonably supports a finding
of prohibited discrimination.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000). To
establish pretext, Plaintiff must do more than set out a prima facie case and put forward “evidence
from which a fact finder could find that the employer’s explanation . . . was false.” LaGrande v.
Key Bank Nat. Ass’n, 393 F. Supp. 2d 213, 220 (S.D.N.Y. 2005) (citing James, 233 F.3d at 153).
Without any evidence of discriminatory animus, the crux of Plaintiff’s case for pretext is
the same as her prima facie case—her belief that she was disciplined unfairly because of her race.
This is insufficient to survive summary judgment. It is well-settled that “mere conjecture or
speculation by the party resisting summary judgment does not provide a basis upon which to deny
the motion.” Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985). Indeed, Plaintiff’s
testimony indicates that she acknowledged her poor workplace performance and attributed it to
“personal issues,” including her recent divorce. ECF No. 47 at 43. Also, as previously discussed,
she presents no evidence of discriminatory animus with respect to the different discipline
administered to her co-workers. See Mack v. Paris Maint. Co. Inc., No. 14CV6955, 2016 WL
8650461, at *8 (S.D.N.Y. Feb. 22, 2016), report and recommendation adopted, No. 14CIV6955,
2016 WL 1071030 (S.D.N.Y. Mar. 17, 2016) (no pretext shown where plaintiff alleging disparate

12

treatment “ignore[d] the two employees’ markedly different disciplinary histories,” and where she
never heard supervisor mention her race).
Because Plaintiff raises no genuine material issue of fact for trial, Defendant’s Motion for
Summary Judgment is granted. Likewise, Plaintiff fails to establish that there is no disputed issue
of fact that she was terminated on account of her race, and her Motion for Summary Judgment is
denied. Plaintiff’s Complaint asserting racial discrimination under Title VII and NYHRL must be
dismissed.
CONCLUSION
For the reasons stated, Defendant’s Motion for Summary Judgment (ECF No. 42) is
GRANTED, Plaintiff’s Motion for Summary Judgment (ECF No. 41) is DENIED, and Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed
to enter judgment and close this case.

IT IS SO ORDERED.
Dated: September 10, 2017
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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