Coley-Allen v. Strong Health, University of Rochester Medical Center
ORDER granting defendant's 34 Motion for Summary Judgment and dismissing the complaint in its entirety, with prejudice. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 11/29/11. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
STRONG HEALTH, UNIVERSITY OF
ROCHESTER MEDICAL CENTER,
Plaintiff Antoinette Coley-Allen (“plaintiff”), was first employed by the University of
Rochester (the “University”) in 1987 and working in a variety of positions, ultimately attaining the
position of Registered Nurse II in the Cardiothoracic Surgery department (“Cath Lab”) at the
University of Rochester Medical Center, which she held from 2005 until her termination in May
2007. Plaintiff brings this action against the University, alleging that she was subjected to a hostile
work environment, discriminatory termination and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”), the New York Human Rights Law, N.Y.
Exec. Law §296, and 42 U.S.C. §1981. The University now moves for summary judgment
dismissing the complaint, on the grounds that plaintiff lacks evidence to support her claims. (Dkt.
#34). Familiarity with the underlying facts is presumed.
Plaintiff was initially represented by counsel, but her attorney withdrew prior to the filing of
the instant motion for summary judgment. Because of her pro se status, plaintiff was provided with
a particularized, explicit notice detailing the nature of the motion and the relief sought, notifying her
that her responses in opposition to the motion were due by August 8, 2011, and warning her that
failure to respond could result in the dismissal of her claims (Dkt. #35). As of the date of this
Decision and Order, plaintiff has failed to respond or otherwise oppose the motion for summary
While the motion is unopposed, the Court has nonetheless examined the record in detail,
remaining mindful of the standards relevant to deciding a motion for summary judgment, and
granting plaintiff every favorable inference as a pro se litigant, and as a non-movant. See e.g.,
Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999) (where the party opposing
summary judgment is proceeding pro se, the Court must “read the pleadings ... liberally and interpret
them to raise the strongest arguments that they suggest”). For the following reasons, the motion for
summary judgment is granted, and the complaint is dismissed.
Plaintiff’s claims of employment discrimination pursuant to Title VII are subject to the
burden-shifting analysis described in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, plaintiff must establish a prima facie case of discrimination by demonstrating: (1) membership
in a protected class; (2) satisfactory job performance; and (3) an adverse employment action,
occurring under (4) circumstances giving rise to an inference of discrimination. See Collins v. New
York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002). If plaintiff establishes a prima facie
case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. See James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000).
The burden then returns to plaintiff, who must supply evidence that the legitimate,
nondiscriminatory reason offered by the defendant is a pretext, and that the adverse employment
action was more likely than not the product of unlawful discrimination. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 508 (1993). See generally Collins v. New York City Transit
Authority, 305 F.3d 113, 118 (2d Cir. 2002).
Assuming arguendo that plaintiff could establish a prima facie case of race-related
discrimination based on the termination of her employment, I find that the University has produced
ample evidence that the termination of her employment occurred for a legitimate, non-discriminatory
reason, and that plaintiff has failed to produce (nor does the record contain) a shred of evidence that
this proffered basis for her dismissal is pretextual.
It is undisputed that throughout her employment with the University and in particular during
the relevant period from December 1, 2006 (before which plaintiff’s claims are time-barred) to May
2007 (when plaintiff’s employment was terminated), plaintiff was serially and repeatedly disciplined
via written warnings, progressive write-ups and multiple suspensions for performance-related
Plaintiff’s documented interpersonal difficulties at work included inappropriate
interactions with coworkers, engaging in arguments and confrontations with staff and supervisors
in front of coworkers and patients, exhibiting rudeness, hostility and unprofessional behavior toward
patients and their families, “acting out,”disregarding hospital policies for patient safety, and
generally failing to exhibit proper workplace demeanor. (Dkt. #34-5 at Exh. B, #34-6, #34-7, #34-8,
As early as 2000, plaintiff was warned that her failure to stop engaging in inappropriate and
disruptive verbal interactions with her coworkers would result in further discipline, including
termination. After her transfer to the Cath Lab in May 2005, plaintiff’s inappropriate behavior
continued and even escalated, to the point that her coworkers repeatedly complained to supervisors
about plaintiff’s bullying conduct, and the tension and loss of morale that it had created in the unit.
Furthermore, it is undisputed that plaintiff repeatedly failed to follow the Cath Lab policy which
required nurses to inform the Charge RN before leaving the unit, in order to permit adequate
coverage for patients and ensure their safety. At a meeting to discuss her performance issues on
March 16, 2007, plaintiff became so belligerent that one of the participants became uncomfortable
and asked to leave the meeting. Based on her conduct at the meeting, plaintiff was placed on a threeday suspension. Plaintiff was warned that additional incidents would be grounds for termination.
Plaintiff returned to work on March 20, 2007, and continued to engage in disruptive
confrontations with coworkers, for which she was counseled on multiple occasions. On or about
April 24, 2007, she was provided with a performance improvement plan which prescribed specific
goals, including compliance with the unit’s policy for signing out when leaving the unit. On May
9, 2007, plaintiff left the Cath Lab unit without signing out. At that point, the University’s Associate
Director of Cardiovascular Nursing Practice, Anna Lambert, along with Cath Lab Nurse Manager
Dawn Buss (“Buss”), decided that plaintiff’s employment should be terminated.
Plaintiff alleges that she was subjected to race-based disparate treatment with regard to the
University’s progressive discipline, refusal of her request for a full-time schedule, failure to promote
her to a higher nursing position, and termination of her employment. However, plaintiff offers no
appreciable evidence that any of the University’s conduct was racially motivated. Rather, she relies
on speculation, her belief that certain, mostly race-neutral remarks by Buss and some of her
coworkers were intended to be racially charged and offensive, and unsupported allegations that two
other employees who failed, as she had, to sign out of the Cath Lab properly, were not terminated.
The University counters these allegations with evidence that the statements of which plaintiff
complains (for example, a statement referring to a patient as “trashy,” and a statement asking
someone if they spoke “gutter slang”) have no racial connotations or are not sufficiently
discriminatory to support plaintiff’s allegations. The University also offers evidence that the
employees identified by plaintiff as failing to sign out of the Cath Lab were not similarly situated to
plaintiff: the University avers that the employees in question did not, in fact, commit the infractions
of which plaintiff accuses them, and in any event, were not subject to disciplinary warnings or on
a performance improvement plan at the time.
Further, there is no evidence that the progressive discipline to which plaintiff was subjected
was motivated by discriminatory animus. Plaintiff does not dispute that she engaged in the
unacceptable and unprofessional behavior for which she was disciplined, or deny that she failed to
substantially comply with the requirements of her performance improvement plan. In fact, at her
deposition, plaintiff repeatedly admitted prior incidents of unprofessional conduct, complaints by
coworkers, and failing to sign out of the Cath Lab. (Dkt. #34-2 at 54, 87, 112, 153, 161, 169, 231232).
Plaintiff’s claim that she was discriminatorily denied a return to a full-time schedule (after
having previously requested and obtained a reduction in her schedule to part-time hours) is similarly
bereft of supporting evidence. The University avers, and plaintiff offers no evidence to the contrary,
that no full-time openings existed in the Cath Lab at the time of plaintiff’s request.
Plaintiff also claims that she was denied promotional opportunities while in the Cath Lab.
However, plaintiff does not allege or offer any evidence that she ever applied for any specific
promotion, let alone that she was denied a promotion under circumstances suggesting discrimination,
and as such, she has failed to state or establish a claim for discriminatory failure to promote. See
e.g., Brown v. Coach Stores, 163 F.3d 706, 710 (2d Cir. 2000) (“[courts] generally require a plaintiff
[asserting discriminatory failure to promote] to allege that she or he applied for a specific position
or positions and was rejected therefrom, rather than merely asserting that . . . she or he generally
requested promotion”); Billups v. Dent Wizard Int’l Corp., 2010 U.S. Dist. LEXIS 60255 at *26
(S.D.N.Y. 2010) (plaintiff cannot establish a prima facie case of discriminatory failure to promote
where plaintiff never applied for the position in question).
To the extent that plaintiff claims she was subjected to a hostile work environment, she has
not alleged any acts of “discriminatory intimidation, ridicule, and insult ... sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working environment,”
nor has she set forth evidence upon which such conduct could be imputed to the University. Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted).
See also Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003); Alfano v. Costello, 294 F.3d
365, 373 (2d Cir. 2002); Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). At most, she
has alleged a handful of isolated incidents of race-neutral, “boorish or offensive use of language” by
coworkers, Benette v. Cinemark U.S.A., Inc., 2003 U.S. Dist. LEXIS 22636 at *18 (W.D.N.Y. 2003),
some of which were heard “second-hand” and none of which she complained about to supervisors
or pursued via the University’s well-publicized anti-harassment policy, with which plaintiff admitted
familiarity. (Dkt. #34-2 at 40, #34-5 at Exh. A). Indeed, the only race-related language of which
plaintiff complains -- stray references by Buss to African-American women as “black girls” -- lacks
“sufficient gravitas to be considered circumstantial evidence of discrimination,” let alone sufficient
evidence to comprise a hostile work environment. Voltz v. Coca-Cola Enters., 91 Fed. Appx. 63,
72 (10th Cir. 2004) (assessing an employer-decisionmaker’s reference to an employee as a “black
girl”). The incidents described by plaintiff are simply insufficient as a matter of law to establish a
hostile work environment. See also Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 62 (2d
Cir. 1992) (“incidents must be repeated and continuous; isolated acts or occasional episodes will not
Finally, the complaint alleges that plaintiff’s termination occurred in retaliation for having
complained about comments by her coworkers. Specifically, plaintiff states that in an April 2, 2007
written self-evaluation which she completed in connection with the University’s annual employee
performance assessments, plaintiff indicated that she would continue to, “communicate with Nurse
Manager and leadership as prior any cultural disrespectful [sic] and inappropriateness from those
individuals and fellow colleagues.” (Dkt. #1 at ¶21).
On a motion for summary judgment, a test similar to McDonnell-Douglas, supra, is applied.
Plaintiff must first establish a prima facie case of retaliation by showing: (1) her participation in a
protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff;
and (3) a causal connection between the protected activity and the adverse employment action. Once
she has done so, the burden shifts to the defendant to establish a legitimate, non-retaliatory basis for
the complained-of action. If the defendant does so, the burden returns to plaintiff, who must show
that the legitimate, non-retaliatory reason articulated by the defendant is a mere “pretext,” and that
retaliation was more likely than not the reason for the complained-of action. See Schnabel v.
Abramson, 232 F.3d 83, 90 (2d Cir. 2000); Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998).
Plaintiff offers no evidence describing the comments to which she was referring or
substantiating any “prior” complaints. I also find dubious her contention that her vague, passing
reference to “cultural disrespectful [sic]” constituted a formal complaint of discrimination
approaching the level of protected activity. Id. See Davis-Molinia v. Port Auth. of N.Y. & N.J., 2011
U.S. Dist. LEXIS 93868 at *36 n. 27 (S.D.N.Y. 2011) (“[c]omplaints about conduct clearly
prohibited by the statute need not mention discrimination or use particular language . . . However,
ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct
do not constitute protected activity”) (internal citations omitted); Foster v. Humane Society of
Rochester & Monroe County, Inc., 724 F. Supp. 2d 382, 394-395 (W.D.N.Y. 2010) (in order to
allege that complaints to management comprised protected activity, a plaintiff must allege that she
complained about acts of discrimination, and not other issues or work-related problems).
Assuming arguendo that plaintiff’s reference in her self-assessment to potential future
“cultural disrespectful [sic] and inappropriateness” by coworkers, along with the one-month time
lapse between the self-evaluation and plaintiff’s termination, is sufficient to make out a prima
facie case of retaliation, plaintiff has, as described in detail above, failed to rebut the University’s
legitimate, non-discriminatory reason for terminating her employment: a consistent record of failing
to comport herself in a professional manner, and/or to comply with University policies concerning
For these reasons, the University’s unopposed motion to for summary judgment dismissing
the complaint (Dkt. #34) is granted, and the complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
November 29, 2011.
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