Tolleson v. Unity Health System
Filing
32
DECISION AND ORDER granting 20 Motion for Summary Judgment. This action is dismissed with prejudice. Signed by Hon. Charles J. Siragusa on 5/14/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
ELIONIDA TOLLESON,
Plaintiff,
-vsDECISION AND ORDER
09-CV-6350 CJS
UNITY HEALTH SYSTEM,
Defendant.
__________________________________________
APPEARANCES
For Plaintiff:
Christina A. Agola, Esq.
1415 Monroe Avenue
Brighton, New York 14618
For Defendant:
Daniel J. Moore, Esq.
Joshua D. Steele, Esq.
Harris Beach LLP
99 Garnsey Road
Pittsford, New York 14534
INTRODUCTION
This is an action alleging employment discrimination pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII), as amended, 42 U.S.C. § 2000e et seq., and the
New York Human Rights Law (“NYHRL”), Executive Law § 290 et seq. Now before the
Court is Defendant’s motion for summary judgment (Docket No. [#20]). The application
is granted.
1
BACKGROUND
Unless otherwise noted, the following are the facts of this case viewed in the light
most favorable to Plaintiff. Defendant is a corporation which operates hospitals in
Rochester, New York. Plaintiff is a native of the Philippines, for whom English is her
second language. Plaintiff moved to the U.S. in 2004. On October 22, 2007, Defendant
hired Plaintiff for the position of “Food Service Assistant.” At the time, Plaintiff was four
months pregnant.
The position of “Food Service Assistant” involved working both in the hospital
kitchen, preparing meal trays for hospital patients, and in the hospital cafeteria,
preparing meals for customers. The written job description for the position states, in
pertinent part:
[E]mployee must consistently:
***
Assembles and retrieves meals as required while maintaining good
customer relations.
***
Assembles resident [patient] trays and nourishment according to menu
requirements, diet specifications and requests while utilizing proper food
handling practices in a timely, organized manner.
Pl. Resp. to Stmt. of Facts [#27-3] at ¶ 16. The process for assembling patient trays
used an assembly line with four stations, each staffed by a single employee. Id. at ¶ 20.
Each tray contained an “order ticket,” which specified what food was to be placed on the
tray. Id. at ¶ 22. While assembling trays, Plaintiff was required to consult the order ticket
and place the appropriate food items on each tray. Plaintiff was also required to perform
cleaning tasks and deliver meal trays to locations throughout the hospital using a large
metal cart. Id. at ¶ 18.
2
Pursuant to Defendant’s usual practice, Plaintiff received three weeks of training
on the tray assembly line, which consisted of her working with a more experienced
employee. Plaintiff was only able to advance through the first of the four stations of the
tray assembly process. Moreover, at the end of the training period, Plaintiff was unable
to consistently place the correct food items on patient trays in a timely manner. On
November 21, 2007, Plaintiff’s supervisor, Lynn Orlando, gave her a verbal warning
about her job performance. Orlando prepared a written report concerning the verbal
warning, which Plaintiff signed, and which states:
Since her start date of 10/22/07 Nida has not shown the ability to complete
her work in the allotted time periods. Nida often relies on her co-workers to
help complete her job duties. She has not been able to perform on the
patient trayline at the lunch meal without much assistance. Nida moves
very slowly when working in the dishroom and also when passing trays on
the floors.
Prescribed Corrective Action: Nida needs to complete her job duties
quicker without relying on her co-workers to pick up the slack.
Pl. Appendix of Exhibits, Ex. E. Plaintiff does not allege that this verbal warning was
discriminatory. See, Pl. Deposition at p. 86.
Approximately one week after receiving this verbal warning, Plaintiff produced a
doctor’s note, indicating that because of her pregnancy, she was not able to lift, push or
pull more than twenty pounds. Such restriction affected Plaintiff’s ability to deliver trays
to patients, but not her ability to work on the tray assembly line. Defendant maintains
that because of this restriction, it did not require Plaintiff to move the tray delivery carts,
which weighed more than twenty pounds. Plaintiff, though, contends that one of her
supervisors still told her to deliver trays. However, it is unclear whether that supervisor
3
was aware of Plaintiff’s restriction, and in any event, Plaintiff’s immediate supervisor,
Orlando, reiterated that Plaintiff should not push the carts.
Plaintiff nevertheless complains that when she initially presented her doctor’s
note, Orlando responded that if she had known Plaintiff was pregnant, she would not
have hired her. See, Pl. Dep. at p. 44 (According to Plaintiff, Orlando stated, in sum or
substance, “So if I know you were pregnant, you see, you cannot get this job because
this job is hard shifts, it’s fast, hurry, hurry, hurry, she told me like that.”). However,
Orlando denies making such a comment.
In the meantime, Plaintiff continued to work on the patient tray assembly line. On
or about December 5, 2007, Orlando specifically observed Plaintiff while she worked
assembling patient trays. According to Orlando, she witnessed Plaintiff make numerous
errors assembling the tray orders. For example, Orlando states that several times
Plaintiff failed to differentiate between butterscotch pudding and butterscotch cookies,
which caused her to place the wrong items on trays, and in one case, resulted in her
placing a cookie on a tray for patient who was supposed to receive only pudding,
because the patient could not have solid food. Orlando also indicates that Plaintiff
placed a turkey sandwich on a tray that required a ham sandwich. Furthermore, Orlando
states that Plaintiff mistakenly placed ice cream on trays for patients on a clear-liquid
restricted diet, rather than “‘water ice,’ which is similar to italian ice,” and vice versa. Pl.
Resp. to Stmt. of Facts at ¶ 35. Orlando also reportedly observed that Plaintiff
could not differentiate between ‘nectar liquids’ and ‘honey-thickened
liquids,’ the two different types of thickened liquids provided to patients with
swallowing difficulties. This inability was dangerous because if a patient
did not receive a beverage with the correct degree of thickness the liquid
4
could go into their lungs and be life threatening.
Id. at ¶ 36. According to Orlando, Plaintiff’s numerous errors caused her to ask Plaintiff
whether she could read English, and Plaintiff responded that she could, but that she did
not recognize the various foods because she did not eat those types of food. Id. at ¶ 37.
Plaintiff counters that she only made one mistake while Orlando was observing her,
which was to place a diet pudding on a tray that required a regular pudding. However,
as will be discussed further below, Plaintiff is not in a position to dispute Orlando’s
observations, since she admittedly has great difficulty in recognizing the various foods
that were used in Defendant’s kitchen, and therefore would not necessarily know when
she made a mistake, unless she was told. See, Pl. Affidavit at ¶ 22. Accordingly, at
most Plaintiff can say that Orlando only told her about a single mistake that she had
made. Similarly, although Plaintiff complains that no one told her that her mistakes
posed a risk to patient health, she does not dispute that such mistakes could in fact
endanger patient’s safety.
Overall, Plaintiff admits that she consistently made mistakes on the tray line,
because of her upbringing in the Philippines and her unfamiliarity with common
American foods. For example, Plaintiff admits that the following statement is
undisputed:
Rather than provide Ms. Tolleson with a written warning, Unity continued to
work with her until the end of her employment in an effort to improve her
performance in the kitchen. Unfortunately, Ms. Tolleson’s performance in
the tray line did not improve and she continued to make errors with respect
to identifying and differentiating between different types of food.
RESPONSE: UNDISPUTED.
5
Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 55. Plaintiff’s admission on this point is
further punctuated by her contention that Defendant failed to specifically train her to
recognize foods. See, Pl. Affidavit at ¶ 22 (“Further, I received no training in identifying
foods, which is an essential function of my job.”) (emphasis in original). Such statement
only confirms that she could not adequately identify the various patient foods, even after
three weeks of training on the tray assembly line.
Plaintiff’s deposition testimony further reveals the difficulty that she had
recognizing the various patient foods and placing them on the trays in a timely manner.
See, Pl. Deposition at pp. 36-41. Rather than setting forth such testimony verbatim, it is
sufficient to note that Plaintiff admitted having great difficulty in recognizing the food
used in Defendant’s kitchen, which she attributed to the fact that she was raised in the
Philippines and not the U.S. Id. at pp. 36-41, 74. For example, Plaintiff stated that she
could not differentiate between different types of bread, because she ate rice instead of
bread. The problem was so severe that Plaintiff sometimes skipped placing a particular
type of food on the tray, rather than risk making a mistake. Id. at p. 41; see also, Pl.
Resp. to Def. Stmt. of Facts [#27-3] at ¶ 95 (“UNDISPUTED”); see also, Pl. Dep. at p. 96
(“Still it is hard for me to recognize the food that’s making me make mistakes.”). Plaintiff
admits that she made more mistakes than even a per diem student who was working in
the kitchen. Id. at p. 103.
After observing Plaintiff on the tray line, Orlando sent an email to her supervisor,
Ms. Hamil, expressing concern about Plaintiff’s performance. Specifically, Orlando
stated that despite having received weeks of training, Plaintiff was not able to work on
6
the entire tray assembly line, and was making numerous mistakes, which raised a
concern about patient safety. Id. at ¶ 39. On December 5, 2007, Hamil forwarded
Orlando’s email to her supervisors, Anthony Rizzo and David Karpowich, and included
her own concerns about Plaintiff’s performance, namely, that Plaintiff did not have the
ability to perform her job. Hamil further stated that she had assigned an employee
specifically to stand beside Plaintiff while she was assembling patient trays, to make
sure that she did not endanger patient safety. Id. at ¶ 43. Hamil indicated that she was
particularly concerned about Plaintiff’s inability to diffentiate between liquids for patients
with swallowing difficulties. Id. at ¶ 44. Moreover, Hamil related to Rizzo and Karpowich
that Plaintiff could not perform other tasks within the department, because of her
medical restrictions, and she asked whether Plaintiff could be reassigned or terminated.
Id. at ¶ 45. On December 6, 2007, Karpowich responded that Plaintiff’s performance
problems raised a difficult issue, because “[e]rrors on patient trays are not acceptable.”
Id. at ¶ 46.
Subsequently, during December 2007, Defendant had Plaintiff undergo a medical
examination, which confirmed that she was restricted from lifting, pushing or pulling
more than twenty pounds. Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 53. Defendant
also assigned Plaintiff to work more often in the cafeteria, in the hope that it would be
easier for her, but Plaintiff continued to make mistakes related to mis-identifying foods.
Id. at ¶ ¶ 56-57. Plaintiff purportedly disputes this, although, she argues Defendant did
not issue her any further warnings about her performance, not that she did not continue
to make mistakes. Id.
7
During the first week of January 2008, Defendant decided to terminate Plaintiff’s
employment. Specifically, it is undisputed that
[t]he final decision to end Ms. Tolleson’s employment as Food Service
Assistant was made on or around January 9, 2008 as a result of seven to
ten days of discussions regarding her continued performance issues and
any alternative options that might be available.
RESPONSE: UNDISPUTED.
Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 65. In that regard, Defendant’s usual
progressive discipline policy consisted of a verbal warning and two written warnings
before an employee would be terminated. In Plaintiff’s case, Defendant only issued a
single verbal warning, and no written warnings, which admittedly was a deviation from its
ordinary policy. Defendant indicates, however, that it did not follow that procedure
because of its concern about patient safety, and because it did not believe that Plaintiff’s
poor performance was due to a lack of effort or to bad behavior, but rather, that it was
the result of her genuine inability to accurately identify the various types of patient foods
and beverages. Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ ¶ 59-60.
On January 10, 2007, prior to being told anything about being terminated, Plaintiff
visited one of Defendant’s human resources offices and picked up forms to apply for
short-term disability, related to her pregnancy. Plaintiff’s husband, James Tolleson,
states that later that same day, someone from Defendant’s Human Resources Office
called their home and asked why Plaintiff was considering applying for disability leave,
and he responded that it was pregnancy related. He contends that the caller then told
him that Human Resources had notified Plaintiff’s supervisors that she had picked up
paperwork for disability leave. James Tolleson Aff. at ¶ ¶ 4-6. Defendant, though,
8
denies that anyone involved in the decision-making process concerning the termination
of Plaintiff’s employment knew, prior to making that decision, about Plaintiff’s plan to
request disability leave.
The following day, January 11, 2007, Hamil informed Plaintiff that she was
terminating her employment as a Food Service Assistant, “due to her continued inability
to perform the essential functions of her job.” Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶
61. Defendant continued to pay Plaintiff for several more weeks, while she looked for
other employment within Defendant’s corporate structure, but Plaintiff was not hired for
any position. Plaintiff believes that her pregnancy was a factor in her not being rehired.
In May 2008, Plaintiff filed a discrimination complaint with the Equal Employment
Opportunity Commission. On April 13, 2009, the EEOC dismissed the complaint,
because it was unable to conclude that discrimination had occurred. See, Pl. Resp. to
Def. Stmt. of Facts [#27-3] at ¶ 78.
On July 10, 2009, Plaintiff commenced this action, alleging discrimination
because of her pregnancy. Following a period of discovery, Defendant filed the subject
motion for summary judgment. Defendant contends that Plaintiff cannot establish a
prima facie case, and that even if she could, it had a legitimate non-discriminatory
reason for terminating her employment. Plaintiff opposes, maintaining that there are
triable issues of fact that preclude summary judgment. On May 7, 2012, counsel for the
parties appeared before the undersigned for oral argument.
ANALYSIS
Rule 56
Summary judgment may not be granted unless "the pleadings, depositions,
9
answers to interrogatories, and admissions on file, together 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." Fed.R.Civ.P. 56(c). A party seeking summary
judgment bears the burden of establishing that no genuine issue of material fact exists.
See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make
a prima facie showing that the standard for obtaining summary judgment has been
satisfied.” 11 MOORE’S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). “In
moving for summary judgment against a party who will bear the ultimate burden of proof
at trial, the movant may satisfy this burden by pointing to an absence of evidence to
support an essential element of the nonmoving party's claim.” Gummo v. Village of
Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been
established, the burden shifts to the non-moving party to demonstrate "specific facts
showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). To carry this burden, the non-moving party must present evidence
sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249.
The parties may only carry their respective burdens by producing evidentiary
proof in admissible form. FED. R. CIV. P. 56(c). The underlying facts contained in
affidavits, attached exhibits, and depositions, must be viewed in the light most favorable
to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, it is
well settled that the party opposing summary judgment may not create a triable issue of
fact “merely by submitting an affidavit that disputes his own prior sworn testimony.” Rule
10
v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996) (citations omitted). Rather, such
affidavits are to be disregarded. Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987)
(citations omitted). Summary judgment is appropriate only where, "after drawing all
reasonable inferences in favor of the party against whom summary judgment is sought,
no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy,
988 F.2d 303, 308 (2d Cir.1993).
Courts must be "particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is in question. Because
direct evidence of an employer's discriminatory intent will rarely be found, affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if believed,
would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997)
(citations and internal quotations omitted). Nevertheless, it is “beyond cavil that
summary judgment may be appropriate even in the fact-intensive context of
discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001). Moreover, a plaintiff may not defeat a motion for summary judgment merely by
relying upon “purely conclusory allegations of discrimination, absent any concrete
particulars.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. den. 474 U.S. 829
(1985).
Title VII
Title VII “makes it unlawful for an employer to discriminate against any individual
with respect to the ‘compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin.’" Richardson v.
11
New York State Dep’t of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999)(citations
omitted), abrogated on other grounds by Kessler v. Westchester County Dept. of Soc.
Servs., 461 F.3d 199 (2nd Cir. 2006).1 “Title VII was amended by the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k), to enact Congress's determination that
‘discrimination based on a woman's pregnancy is, on its face, discrimination because of
her sex.’” DeMarco v. CooperVision, Inc., 369 Fed.Appx. 254, 255, 2010 WL 889252 at
*1 (2d Cir. Mar. 12, 2010) (quoting Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983)).
Retaliation
Defendant maintains that Plaintiff cannot establish a retaliation claim, and the
Court agrees.2 In that regard, the legal principles for retaliation claims are clear:
“Retaliation claims under Title VII are evaluated under a three-step
burden-shifting analysis.” Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 173 (2d Cir.2005); see also McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff
must establish a prima facie case of retaliation by showing: “ ‘(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.’ ” Jute, 420 F.3d at 173 (quoting McMenemy v. City of Rochester,
241 F.3d 279, 282-83 (2d Cir.2001)). The plaintiff's burden in this regard is
“ de minimis,” and “the court's role in evaluating a summary judgment
request is to determine only whether proffered admissible evidence would
1
It is well settled that “claims brought under New York State's Human Rights Law are analytically
identical to claims brought under Title VII.” Torres v. Pisano, 116 F.3d 625, 629, n.1 (2d Cir. 1997), cert
den. 522 U.S. 997 (1997). Consequently, unless otherwise noted, references to Title VII herein are also
intended to refer to the NYHRL.
2
It is unclear whether Plaintiff is even attempting to assert such a claim, since she admits that the
Complaint “does not contain a separate cause of action for retaliation.” Pl. Resp. to Def. Stmt. of Facts
[#27-3] at ¶ 84. However, the Court is addressing it, since it arguably would be Plaintiff’s strongest claim if
she in fact had such a claim, given the issues of fact concerning the temporal proximity between her
obtaining maternity-leave forms and being terminated, and given the fact that she need not be qualified for
her position in order to assert a retaliation claim.
12
be sufficient to permit a rational finder of fact to infer a retaliatory motive.”
Id. (internal quotation marks omitted).
If the plaintiff sustains this initial burden, “a presumption of retaliation
arises.” Id. The defendant must then “articulate a legitimate, non-retaliatory
reason for the adverse employment action.” Id. If so, “the presumption of
retaliation dissipates and the employee must show that retaliation was a
substantial reason for the adverse employment action.” Id. A plaintiff can
sustain this burden by proving that “a retaliatory motive played a part in the
adverse employment actions even if it was not the sole cause[;] if the
employer was motivated by retaliatory animus, Title VII is violated even if
there were objectively valid grounds for the [adverse employment action].”
Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990).
Hicks v. Baines, 593 F.3d 159, 164-165 (2d Cir. 2010).
Significantly, it is well settled that “[t]he term ‘protected activity’ refers to action
taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores,
Inc., 202 F.3d 560, 566 (2d cir. 2000). In deciding whether a particular activity amounts
to “protected activity,” “the employment practices opposed by the plaintiff need not have
actually amounted to a violation of Title VII. Rather, the plaintiff must have had a good
faith, reasonable belief that the underlying challenged actions of the employer violated
the law.” McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). “[I]mplicit in
the requirement that the employer have been aware of the protected activity is the
requirement that it understood, or could reasonably have understood, that the plaintiff's
[complaint] was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v.
National Realty & Development Corp., 136 F.3d 276, 292 (2d Cir. 1998).
Here, Plaintiff maintains that Defendant fired her immediately after learning that
she was preparing to take short-term disability leave related to her pregnancy. To the
extent that Plaintiff characterizes her actions, in obtaining forms and information
13
regarding such leave, as protected activity, the Court disagrees. Merely requesting
disability leave or maternity leave is not protected activity under Title VII. See, Demers v.
Adams Homes of Northwest Florida, Inc., 321 Fed.Appx. 847, 852, 2009 WL 724033 at
*4 (11th Cir. Mar. 20, 2009) (“[T]o engage in protected activity, the employee must still,
at the very least, communicate her belief that discrimination is occurring to the employer,
and cannot rely on the employer to infer that discrimination has occurred. A simple
request for maternity leave would not suffice, because it alone would not announce
opposition to the discriminatory basis for its denial.”) (citations omitted), rehearing en
banc denied, 347 Fed.Appx. 557 (11th Cir. Jun. 2, 2009) (table); McCormick v. Allegheny
Valley School, Civil Action No. 06-3332, 2008 WL 355617 at *16-17 (E.D. Pa. Feb. 6,
2008) (“Ms. McCormick merely requested maternity leave, which is neither participation
in a Title VII proceeding nor an act in opposition of discrimination.”).
This in no way suggests that employers may penalize employees for taking
maternity leave. Clearly, they cannot. In the Court’s view, though, the appropriate claim
is one for discrimination, not retaliation. That is, while taking maternity leave may not
qualify as protected activity, an employer nevertheless cannot take an adverse
employment action against an employee for utilizing maternity leave, as such action is
analogous to taking action against her because of her pregnancy. In Smith v. F.W.
Morse & Co., Inc., 76 F.3d 413, 424 (1st Cir. 1996) the First Circuit stated:
It is settled under Title VII that an employer may not discharge an
employee based on the categorical fact of her pregnancy. By the same
token, since a short-term inability to work is bound up with the very nature
of pregnancy and childbirth, that disability is a pregnancy-related condition
within the meaning of 42 U.S.C. § 2000e(k), and Title VII thus prohibits an
employer from dismissing an employee in retaliation for taking an
14
authorized maternity leave.
(emphasis added). Despite the use of the word “retaliation” in the preceding quote, the
First Circuit’s analysis involved a claim of discrimination, not retaliation. See, id.3
Accordingly, an employer who discharges a qualified employee merely because
she takes maternity leave or pregnancy-related disability leave may be found liable for
disparate treatment, but not retaliation. Below, the Court will consider Plaintiff’s
disparate treatment claim, which includes the allegation that Defendant discriminated
against her because she was planning to take pregancy-related leave disability leave.
Disparate Treatment
Disparate treatment discrimination claims are analyzed using the well-settled
McDonnell Douglas4 burden-shifting framework:
A plaintiff establishes a prima facie case of discrimination by showing that
he or she (1) is a member of a protected [group] . . . .; (2) was qualified to
perform the duties required by the position; (3) was subjected to an
adverse employment action; and (4) the adverse employment action
occurred in circumstances that gave rise to an inference of discrimination.
See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003).
***
Once the plaintiff presents a prima facie case5, the burden of production
shifts to the defendant to articulate a legitimate, non-discriminatory reason
for its employment decision. See Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Upon the
defendant's articulation of a legitimate, non-discriminatory reason, the
presumption of discrimination arising from the plaintiff's prima facie
3
Another district court has cited Smith v. F.W. Morse & Co., Inc., for the proposition that
“maternity leave is protected activity under Title VII.” Baez-Viera v. Cooperativa Abraham Rosa, 2011 WL
3843869 at *11 (D.Puerto Rico Aug. 30, 2011). This Court respectfully disagrees.
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
5
“A plaintiff’s burden of establishing a prima facie case is de minimis. The requirement is neither
onerous, nor intended to be rigid, mechanized or ritualistic.” Abdu-Brisson v. Delta Air Lines, Inc., 239
F.3d at 467 (citations and internal quotation marks omitted).
15
showing “ ‘drops out of the picture,’ ” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742,
125 L.Ed.2d 407 (1993)); see Weinstock v. Columbia Univ., 224 F.3d 33,
42 (2d Cir.2000), and the burden of production shifts back to the plaintiff to
adduce evidence sufficient for a reasonable jury to conclude that
discrimination was a reason for the employment action, see Schnabel v.
Abramson, 232 F.3d 83, 88 (2d Cir.2000). In deciding a motion for
summary judgment, the court is 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.’ ” Id. at 90 (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097).
Thus, summary judgment is appropriate when the plaintiff “has presented
no evidence upon which a reasonable trier of fact could base the
conclusion that [discrimination] was a determinative factor” in the
defendant's employment decision. Schnabel, 232 F.3d at 91.
Butts v. NYC Dept. of Housing Preservation and Dev., No. 07-1930-cv, 307 Fed.Appx.
596, 2009 WL 190403 at *1-2 (2d Cir. Jan. 28, 2009); see also, Terry v. Ashcroft, 336
F.3d at 138 (“[O]nce the defendant has made a showing of a neutral reason for the
complained of action, to defeat summary judgment the plaintiff’s admissible evidence
must show circumstances that would be sufficient to permit a rational finder of fact to
infer that the defendant’s employment decision was more likely than not based in whole
or in part on discrimination.”) (citations and internal quotations omitted).
Assuming that a plaintiff establishes a prima facie case, and that the defendant
provides a non-discriminatory reason for the employment action, at the third tier of the
McDonnell Douglas test, the plaintiff is required “to produce sufficient evidence to
support a rational finding that the non-discriminatory business reasons proffered by the
defendant for the challenged employment actions were false.” Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d at 470. If the plaintiff succeeds, such evidence may, or may not,
establish the additional required proof of discriminatory intent:
16
The ultimate question is whether the employer intentionally discriminated,
and proof that "the employer's proffered reason is unpersuasive, or even
obviously contrived, does not necessarily establish that the plaintiff's
proffered reason is correct. In other words, it is not enough to disbelieve
the employer; the factfinder must believe the plaintiff's explanation of
intentional discrimination.
James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (quoting Reeves v.
Sanderson Plumbing Prods. Inc., 120 S.Ct. 2097, 2108-09 (2000)). “The relevant
factors . . . include the strength of the plaintiff's prima facie case, the probative value of
the proof that the employer's explanation is false, and any other evidence that supports
or undermines the employer's case." Id. (internal quotation marks omitted).
In this case, Defendant contends that Plaintiff cannot establish a prima facie
claim, because she was not qualified to perform the duties required by her position. In
that regard,
[t]o show “qualification” sufficiently to shift the burden of providing some
explanation for discharge to the employer, the plaintiff need not show
perfect performance or even average performance. Instead, she need
only make the minimal showing that she possesses the basic skills
necessary for performance of the job.
Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (citations and internal quotation marks
omitted). “To determine whether an individual is qualified for purposes of establishing a
prima facie case, the court's ‘ultimate inquiry’ is whether an employee's performance
meets his employer's legitimate expectations.” Lewis v. Air France Corp., 88 CIV. 4136
(MBM), 1990 WL 49053 at *4 -5 (S.D.N.Y. Apr. 18, 1990) (citations omitted). As the
Second Circuit has stated,
[i]n determining whether an employee's job performance is satisfactory,
courts may-as they often must-rely on the evaluations rendered by
supervisors. After all, job performance cannot be assessed in a vacuum;
17
the ultimate inquiry is whether an employee's performance meets his
employer's legitimate expectations. Although courts must refrain from
intruding into an employer's policy apparatus or second-guessing a
business's decisionmaking process, they must also allow employees to
show that the employer's demands were illegitimate or arbitrary.
Meiri v. Dacon, 759 F.2d at 995 (citations and internal quotation marks omitted).
Usually, the Plaintiff’s burden on this point is easily met. See, Sassaman v.
Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (“The Supreme Court has used the
adjective ‘minimal’ to describe the burden of establishing a prima facie case of
discrimination in violation of Title VII, and we have likewise held that the plaintiff's burden
of establishing a prima facie Title VII case is de minimis.”) (citations and internal
quotation marks omitted). Nevertheless, courts have readily found a failure to meet this
threshold where a plaintiff cannot perform the duties of the job or does not meet the
requirements set by the employer. See, e.g., Orlando v. Department of Transp.,
Commissioner, No. 10–5142–cv, 2012 WL 129832 at *1 (2d Cir. Jan. 18, 2012)
(“Appellee's failure to promote Orlando in 2007 cannot support a prima facie
discrimination finding because he failed the test that was administered for the promotion
that year. Therefore, he was not qualified for the position.”); Ruszkowski v. Kaleida
Health System, No. 10–1743–cv, 422 Fed.Appx. 58, 60, 2011 WL 1938550 at *1 (2d Cir.
May 23, 2011) (“Here, Appellant cannot make out a prima facie case of discrimination
under Title VII or the ADEA. With respect to the position of phlebotomy supervisor,
Appellant cannot show that he was qualified for the position, as he admittedly had no
prior supervisory experience.”)
Defendant maintains that Plaintiff was not qualified to perform her job, and did not
18
perform the job to Defendant’s expectations. On this point, Defendant states that
Plaintiff was unable to recognize or differentiate between foods, which rendered her
unable to prepare meals for patient trays in the kitchen, or for customers in the cafeteria.
Significantly, Defendant contends that Plaintiff’s shortcomings in this area posed a
danger to patient safety, since Plaintiff made numerous mistakes in placing the wrong
kids of food on patient trays. In addition, Defendant contends that Plaintiff simply was
too slow in performing her assigned tasks.
Plaintiff maintains that she was qualified, and that any shortcomings in her
performance were the result of Defendant’s failure to train her to recognize the various
food products that were being used. See, Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 60
(Stating that she “received no training in identifying foods.”) (emphasis in original). In
her memo of law opposing Defendant’s motion, Plaintiff devotes a single paragraph to
this issue, as follows:
Plaintiff worked for Unity for over three months as a Food Service
Assistant. Other than a verbal warning issued on November 21, 2007, two
months before her termination, admonishing the Plaintiff not to ask her coworkers for help in completing arduous physical tasks6 because of her
pregnancy, there is no written record or any disciplinary actions, warnings
or problems with respect to the Plaintiff that Plaintiff was aware of prior to
her termination with regard to the reasons identified by the Defendant as
the basis for her termination, i.e. the alleged failure to recognize certain
foods. It is undisputed on this record that Plaintiff was never verbally
reprimanded, warned, or even spoken to about these behaviors that
culminated in her termination. That meets Plaintiff’s burden of going
6
Here, Plaintiff is mis-characterizing the verbal warning that she was given. In this regard, she
suggests that she was told not to ask co-workers for help with “arduous physical tasks,” suggesting that
she could not perform heavy work due to her pregnancy. However, Plaintiff’s counseling occurred prior to
her bringing her pregnancy to Defendant’s attention. Moreover, according to the report of that verbal
counseling, which Plaintiff signed, she was criticized for relying on co-workers generally to perform “job
duties” on the tray line, not “arduous physical tasks,” as she maintains. See, Pl. Appendix Vol. II, Ex. E.
19
forward concerning her performance on the job. See Flores [v. Buy Buy
Baby, Inc., 118 F.Supp.2d 425,] 430 [(S.D.N.Y. 2000)].
Pl. Memo of Law [#27] at pp. 6-7 (emphasis added). In Flores, the case relied upon by
Plaintiff, the court found that the plaintiff established that she was qualified for her job,
because she worked for three months, without any “written record of any complaints,
disciplinary actions, warnings, or problems,” and she was retained past her probationary
period. Flores, 118 F.Supp.2d at 430.
In this case, Plaintiff admits that she was hired on October 22, 2007, and then
received three weeks of training. She further admits that one week after the completion
of her training, on November 21, 2007, she was given “a verbal warning for ‘poor work
performance.’” Pl. Aff. [#27-4] at ¶ 4. She argues, though, that this warning is really
irrelevant to this case, since it did not specifically involve her inability to recognize foods,
but rather, was directed at her habit of asking co-workers for help in performing her job.
However, the Court disagrees, since the verbal warning report, which Plaintiff signed,
specifically refers to her slowness and her inability to perform on the tray assembly line
without assistance. Moreover, Plaintiff’s suggestion that she was not notified about her
problems in identifying foods on the food tray assembly line is belied by her deposition
testimony, in which she indicates that she was repeatedly yelled at, approximately every
other day, for making mistakes on the tray line. See, e.g., Pl. Dep. at pp. 97, 99-101. In
any event, as discussed above, it is undisputed that Plaintiff had significant problems
identifying food, which caused her to make mistakes on the tray line. Accordingly, the
Flores case is factually inapposite.
Plaintiff nevertheless contends that there is an issue of fact as to her
20
qualifications, since Defendant should have trained her to identify food. Essentially, her
argument is that she would have been qualified to perform the job if Defendant had only
provided her with more training. However, Defendant was not required to provide
Plaintiff with specialized training to overcome her peculiar and unfortunate inability to
distinguish certain foods. See, Gray v. Niagara Frontier Transp. Auth., No.
CIV–82–103E, 1987 WL 14591 at *3 (W.D.N.Y. Jul. 21, 1987) (“Failure of an employer
to provide on-the-job training is not per se a violation of any laws. Furthermore, Title VII
does not demand that an employer give preferential treatment to [individuals protected
by that statute]. . . . Gray's argument that she should have been afforded an
opportunity to train on the equipment at her own pace simply has no legal basis.”).
Plaintiff does not contend that Defendant provided her with less training than nonpregnant employees.
Furthermore, Plaintiff’s insistence that she required such additional specialized
training merely confirms that she was not already qualified to perform her job. See,
Faruq v. Wal-Mart Stores, Inc., No. 03-CV-0192E(SC), 2006 WL 181995 at *5 (W.D.N.Y.
Jan. 24, 2006) (“Plaintiff merely claims that she requested managerial training and was
denied such. By definition, therefore, she was not qualified for a managerial position.”).
Nonetheless, Plaintiff argues that her inability to identify foods should not render
her unqualified, since the ability to tell foods apart was not specifically listed on the
written job requirements. The Court, though, disagrees and find that such fact does not
matter. Defendant cannot reasonably be expected to have included the “ability to
differentiate among common foods” on its list of job requirements, since most people
have no such difficulty. Unlike Plaintiff, most people would have no trouble
21
differentiating between white bread and wheat bread, or between butterscotch pudding
and a butterscotch cookie. See, Orlando Dep. at pp. 49-53 (Plaintiff could not tell the
difference between butterscotch pudding and a butterscotch cookie, or between ham
and turkey); 66 (Plaintiff could not tell the difference between white bread and wheat
bread). And even if they did, they would have been able to overcome that difficulty after
weeks of training and months on the job.
Plaintiff also argues that the Court should deny summary judgment, since
Defendant did not follow its progressive discipline policy. However, on this record, the
fact that Defendant did not follow its progressive discipline policy does not create a
triable issue of fact as to discriminatory intent. In that regard, Plaintiff’s inability to
differentiate foods presented a unique problem implicating patients’ safety.
Furthermore, any such triable issue of fact on this point would go to the fourth element
of the prima facie case, and therefore could not remedy Plaintiff’s failure to establish the
second element.
Plaintiff further alleges that after her employment was terminated, Defendant did
not make sufficient efforts to find her another job. See, Pl. Affidavit at ¶ ¶ 69-79. This
argument lacks merit, since Defendant had no legal obligation to do so. Plaintiff is not
asserting a failure-to-hire claim, and even if she were, she has not demonstrated a prima
facie case.
Plaintiff also states, in conclusory fashion, that the true reason that she was
terminated was because she was planning on taking maternity leave. See, Pl. Affidavit
at ¶ 66. However, as discussed above, Plaintiff concedes that the decision to terminate
her employment was actually made during the seven-to-ten-day period leading up to
22
January 9, 2008. See, Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 65. Therefore, such
decision would have pre-dated Plaintiff picking up disability forms on January 10, 2008.
In any event, even though Plaintiff picked up the disability forms prior to being notified of
her termination, and even assuming Defendant had notice of such fact, it would go to
establish the fourth element of a prima facie case, and Plaintiff has still failed to
establish the second element.
Based on the discussion above, the Court agrees that Plaintiff cannot establish
that she was qualified for her position.
CONCLUSION
For the foregoing reasons, Defendant’s summary judgment motion [#20] is
granted, and this action is dismissed with prejudice.
SO ORDERED.
Dated: Rochester, New York
May 14, 2012
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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