Canady v. Strong Memorial Hospital et al

Filing 74

ORDER granting the defendants' motions for summary judgment (13-CV-6290, Dkt. #55, #56, and 15-CV-6285, Dkt. #25), and plaintiffs complaints in all three of his pending actions against the defendants (13-CV-6290, 14-CV-6264 and 15-CV-6285) are dismissed in their entirety, with prejudice. Signed by Hon. David G. Larimer on 5/22/17. (EMA)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
MARK CANADY,
Plaintiff,
DECISION AND ORDER
13-CV-6290L
v.
UNION 1199,
UNIVERSITY OF ROCHESTER,

Defendants.
________________________________________________
MARK CANADY,
Plaintiff,
v.

14-CV-6264L

1199 EAST HEALTHCARE WORKERS SEIU,
UNIVERSITY OF ROCHESTER,
Defendants.
________________________________________________
MARK CANADY,
Plaintiff,
v.
U OF R,
Defendant.
_________________________________________________

15-CV-6285L

Plaintiff Mark Canady (“plaintiff”) brings two actions (13-CV-6290 and 14-CV-6264,
which have been consolidated) (“the 2013 consolidated case”) against the University of
Rochester (the “University”) and 1199 SEIU Healthcare Workers East (the “Union”), and a third
action (15-CV-6285) (the “2015 case”) against the University alone, alleging that the defendants
subjected him to race-based discrimination and retaliation, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the New York Human Rights
Law, N.Y. Exec. Law §290 et seq. (“NYHRL”).
The defendants have filed motions for summary judgment seeking dismissal of the
complaints in each of plaintiff’s pending cases against them (13-CV-6290, Dkt. #55 and #56; 15CV-6285, Dkt. #25).

For the reasons that follow, all three motions are granted, and the

complaints in each matter are dismissed. 1
FACTUAL AND PROCEDURAL BACKGROUND
Familiarity with the underlying facts, summarized here, is presumed.
Plaintiff, who is of African-American descent, was initially hired by the University in
2008 as a Perioperative Support Associate (“PSA”) at Strong Memorial Hospital. Among other

1 In plaintiff’s submissions, without elaboration, he mentioned that this Court did preside over criminal matters
involving the plaintiff. Without further elaboration, plaintiff asked the Court to recuse itself (13-CV-6290, Dkt. #65
at 5). The motion for recusal is denied. Plaintiff points to no evidence of bias and makes no attempt to explain how
the Court’s involvement in criminal proceedings many years ago would affect the Court’s views on the present
motions.
The Court has no clear recollection of the prior matters, but a review of the docket sheets shows that defendant did
have a criminal drug conviction in 1994, twenty-three years ago, before this Court and a subsequent drug conviction
before this Court in an indictment filed fifteen years ago. In that case, the most recent matter was an Order of March
25, 2008 GRANTING plaintiff’s motion for a sentence reduction.
In light of the above, I do not believe a “reasonable person, knowing all the facts, would conclude that the Court’s
impartiality might reasonably be questioned.” United States v. Terry, 802 F.Supp. 1095, 1098 (S.D.N.Y. 1992).
The issues in the instant civil cases are completely different from those long-ago criminal matters.

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things, PSAs assist clinical staff with the cleaning and preparation of surgical rooms and the
transport of patients.
It is undisputed that plaintiff’s employment as a PSA was peppered with disciplinary
warnings and periodic meetings between plaintiff and his supervisors concerning allegations of
unprofessional and inappropriate workplace behavior by plaintiff toward his coworkers. These
included: (1) a February 7, 2011 counseling memorandum to plaintiff from the University,
concerning a comment by plaintiff that a coworker believed to be threatening; (2) a March 23,
2011 meeting with plaintiff concerning complaints by two female staff members that plaintiff
had made inappropriate comments toward them; (3) a March 30, 2012 meeting concerning
allegedly inappropriate comments made by plaintiff to a student employee; (4) a May 10, 2012
written warning concerning plaintiff’s failure to sign in and out for his break, and abrasive and/or
insubordinate conduct toward coworkers who requested assistance with moving equipment; (5)
discussions concerning a July 20, 2012 altercation with a nurse in which plaintiff refused to
respond to inquiries about the status of a surgical room and yelled, “don’t harass me, you liar”;
and (6) a November 19, 2012 five-day suspension after one coworker complained that plaintiff
was repeatedly subjecting her to unwanted advances even after she asked him to stop, and a
second coworker complained that plaintiff was lurking in certain areas of the hospital and
waiting for her, asking invasive questions about her husband, and responding aggressively when
she asked him not to touch her. Plaintiff grieved the November 2012 five-day suspension, and
the Union and University resolved that grievance via a written “Final Letter of Expectations”
which awarded plaintiff one day of back pay, ended the suspension, and cautioned plaintiff about
the need to maintain professional, ethical relationships with coworkers.

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However, on July 8, 2013, a verbal altercation took place in which plaintiff accused a
coworker of lying about having paged him, and shouted that his supervisors were “corrupt” and
that “this place sucks.” The July 8, 2013 incident was investigated by the University, and after
reviewing witness accounts of the incident and plaintiff’s disciplinary history, the University
terminated plaintiff’s employment.
The Union grieved plaintiff’s termination pursuant to the terms of his collective
bargaining agreement. The grievance was denied and the matter proceeded to arbitration. After
a two-day hearing, at which plaintiff was represented by the Union, the arbitrator found that the
University had improperly accelerated the disciplinary continuum, and should have placed
plaintiff on a disciplinary suspension rather than terminating his employment. The arbitrator
ordered that the time that had passed since plaintiff’s termination should be considered a
disciplinary suspension without pay, and that he should be reinstated – albeit in a different
department – after completing an anger management program.
Plaintiff completed the required anger management program, and returned to work on
July 31, 2014 as a Unit Support Assistant in the Emergency Department.
On October 2, 2015, plaintiff was walking by a treatment room in the Emergency
Department and overheard an exchange between a patient who was resisting being discharged,
and two nurses. He apparently attempted to intervene, yelling into the room and asking the
patient for his name and other information.

Members of the University’s Public Safety

Department responded and informed plaintiff that he was “not supposed by be in [that] area [of
the hospital].” Plaintiff later testified that he believed the patient to be in distress and was
attempting to assist. When the University investigated the incident, Emergency Department staff

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members stated that they were concerned that plaintiff’s actions in asking the patient for
information were initiated without a full appreciation of the situation, and could have led to a
violation of the Health Insurance Portability and Accountability Act. The University suspended
plaintiff with pay during its investigation, and ultimately determined that plaintiff should not be
disciplined.
Thereafter, issues arose concerning plaintiff’s failure to follow Emergency Department
safety procedures concerning patient locations. Patient locations are entered in an electronic
medical records system, “eRecord,” and are logged whenever a patient is moved from one room
to another. In order to prevent misidentification of a patient, hospital staff employ a “double
identification” procedure when transporting patients, asking for two pieces of identifying
information from the patient (e.g., name and birthdate), and comparing that information with the
patient’s medical chart in eRecord.
On February 26, 2015, plaintiff recorded in eRecord that a severely ill patient had been
moved from the waiting room to a treatment room when in fact he had not, causing a serious
delay in that patient’s care. Plaintiff was counseled about using the proper procedures for
identifying patients and recording patient locations. However, on March 24, 2015, plaintiff was
observed by Nurse Manager Betsy Halpin (“Halpin”) failing to use the double identification
procedure. On March 26, 2015, plaintiff again erroneously recorded a patient as having been
transferred to a treatment room when the patient was still in the waiting room. He and several
union representatives met with Halpin and other hospital staff to discuss the incident. Although
plaintiff claimed that he had not made the incorrect eRecords entry, after investigating the
incident, the University determined that plaintiff had made the entry, and suspended plaintiff for

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five days without pay. The University and the union later entered into an agreement that plaintiff
would be transferred to a new position that did not directly involve him in patient care. Plaintiff
was thereafter transferred to the position of full-time stock keeper in the Hospital store, at the
same rate of pay.
DISCUSSION
I. Summary Judgment in Discrimination Cases
Summary judgment will be granted if the record demonstrates 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Although courts should be cautious about granting summary judgment in cases where motive,
intent or state of mind are at issue, a common component of discrimination actions, see Dister v.
Cont’l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988); Montana v. First Federal Savings and
Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir. 1989), “the salutary purposes of summary
judgment – avoiding protracted, expensive and harassing trials – apply no less to discrimination
cases than to... other areas of litigation.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)
(summary judgment rule would be rendered sterile if mere incantation of intent or state of mind
would act as a talisman to defeat an otherwise valid motion). See also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000), (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 524 (1993) (trial courts should not “treat discrimination differently from other ultimate
questions of fact”)).
The Court notes that despite being represented by counsel, plaintiff’s responses to the
pending motions do not include Statements of Material Facts as required by Local Rule 56(a)(2).
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Although plaintiff’s response in the 2015 case does include a sworn affidavit with exhibits,
plaintiff’s response in the 2013 consolidated case attaches no evidence in admissible form, but
consists of a combination of unsigned and unsworn statements of unclear authorship (and in
some cases, bizarre content), 2 and photocopies of unauthenticated documents and
correspondence.

(13-CV-6290, Dkt. #65, #66, #68, #69).

Nonetheless, in the interest of

affording the plaintiff every favorable inference, the Court has reviewed all of the material
submitted by plaintiff. While the bulk of plaintiff’s submissions are not relevant to the bases for
the motions before the Court, to the extent that relevant evidence has been presented, the Court
has considered it.
II.

Plaintiff’s Claims in the 2013 Consolidated Case
A.

Discrimination Claims Against the University

Plaintiff’s claims of employment discrimination pursuant to Title VII and the NYHRL
are subject to the burden-shifting analysis articulated 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) qualification for, and satisfactory
performance in, the job at issue; and (3) an adverse employment action, occurring under (4)

2 Plaintiff’s responses in each matter purport to identify material questions of fact which bar summary judgment, but
are mainly a collection of vague, disconnected statements. For example, plaintiff’s response to the motions for
summary judgment in the 2013 consolidated case raises the following as alleged issues of material fact: (1) whether
plaintiff was “replace[d]” (the position and circumstances are not specified) by a “female, and the sex card [sic] a
realized subject, of a past discrimination complaint in Union Grievance(s), Arbitration, complaints”; (2) whether the
University engaged in “angry bird discipline” against plaintiff, and improperly “[z]ero[ed] in on the microwave lady
potato accusation, with an eye on [a scientific study which allegedly showed that persons in professional positions
are ‘more sexual [sic] inclined’], [which] begs [sic] a demand for sexual harassment policy define [sic]; [because]
this behavior of Plaintiff, is at best, a sexual innuendo, a welcomed gesture, in busy tedious work environs . . . [t]he
Dubious Distinction Awards category for Sexual Innuendoes [sic], a necessary nexus, encouraged in delegates and
delegations; that are high context [sic] and high work demanding environed [sic]”; (3) whether the University
ignored the fact that plaintiff was “so qualified that he has great evaluations, and many awards, with pretty stars on
them”; and (4) whether the University has caused plaintiff’s “mortgage agreement with Strong [Hospital to be] in
Jeopardy [sic]”. (13-CV-6290, Dkt. #65 at 2, 3).

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circumstances giving rise to an inference of discrimination. See Collins v. New York City Transit
Authority, 305 F.3d 113, 118 (2d Cir. 2002). Once plaintiff has established a prima facie case,
the burden shifts to defendant(s) 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, to supply evidence that the legitimate,

nondiscriminatory reason offered by the defendant(s) is pretextual.

See St. Mary’s Honor

Center, 509 U.S. 502, 508 (1993).
Plaintiff’s complaints in the 2013 consolidated case appear to allege two adverse actions:
the June 2013 Final Letter of Expectations and/or the five-day suspension out of which it arose,
and plaintiff’s July 2013 termination, which was later reversed following arbitration.
With respect to the suspension, which was later converted to the Final Letter of
Expectations, plaintiff has failed to produce any evidence that the letter was in fact an adverse
employment action; that is, that it caused him to experience “a materially adverse change in the
terms and conditions of employment.” See e.g., Brown v. City of Syracuse, 673 F.3d 141, 150
(2d Cir. 2012). To the contrary, the Final Letter of Expectations memorialized the University’s
agreement with the Union to return one day of back-pay to plaintiff and resolve his grievance.
Assuming arguendo that the Letter of Expectations was an adverse employment action,
and recognizing that plaintiff’s termination clearly was, plaintiff has produced no proof by which
a reasonable finder of fact could conclude that either event occurred under circumstances giving
rise to an inference of discrimination. Indeed, plaintiff himself did not cite racial animus as the
reason for these actions when he was deposed, but instead argued, as he does now, that he was
treated unfairly due to favoritism and nepotism within the department, and was targeted for

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discipline because he questioned established protocol and because his work ethic was superior to
that of his fellow African-American coworkers. 3
With respect to the sexual harassment complaints by coworkers that occasioned
plaintiff’s initial termination, plaintiff does not appear to claim (nor has he produced any
evidence to suggest) that those complaints or the University’s response were related to his race,
either. Rather, he contends that in deciding how to respond to the complaints, the University
should have been more understanding of the fact that his employment with the University
followed a thirteen-year prison sentence, and that it should have provided him with “anger
management[], [and] perhaps, libido management [training]” (13-CV-6290, Dkt. #65 at 3)
instead of disciplining him. Such matters have nothing to do with plaintiff’s case.
The lack of any correlation between plaintiff’s race and the University’s actions is further
underscored by the fact that although plaintiff alleges that he was treated unfavorably in
comparison to other PSAs, he admits that all of the PSAs employed by the University are, like
him, African-American.

See Ulrich v. Moody’s Corp., 2017 U.S. LEXIS 60538 at *39

(S.D.N.Y. 2017) (where alleged comparators in a disparate treatment claim are in the same
protected class as plaintiff, any inference of discrimination is negated); Toussaint v. NY Dialysis
Servs., 2017 U.S. Dist. LEXIS 14864 at *33 (S.D.N.Y. 2017) (“cases in the Second Circuit have
recognized that a plaintiff alleging race discrimination cannot establish that he was terminated in

3 Plaintiff’s response opposing summary judgment appears to conflate his work ethic with his race, arguing that he
was singled out for harassment and unfair treatment by other African-American coworkers and managers, not
simply because he was an African-American, but because he was a hard-working African-American, and therefore
did not conform to their alleged expectations of him. Plaintiff does not, however, offer any evidence that these same
coworkers and managers treated hard-working employees of other races differently from plaintiff. (13-CV-6290,
Dkt. #65 at 2).

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circumstances giving rise to an inference of discrimination where the similarly situated
comparators are of the same protected class”).
In addition, the person(s) plaintiff identifies as having orchestrated the discriminatory
actions against him (chiefly, manager Ernest Myers) are also African-American, again
undermining plaintiff’s claims that their actions were motivated by racial animus. See e.g.,
Meyer v. McDonald, 2017 U.S. Dist. LEXIS 39766 at *21-*22 (E.D.N.Y. 2017) (“[w]hen the
person who allegedly discriminated against plaintiff is a member of the same protected class as
plaintiff, the court applies an inference against discrimination”) (emphasis added) (citing Palak
v. St. Francis Hosp., 2015 U.S. Dist. LEXIS 76511 (E.D.N.Y. 2015)). (Dkt. #57-3, plaintiff’s
deposition at 49-50, 87-88, 101, 124-25, 327, 374, 405-06, 422-24).
Because there is no evidence by which any reasonable finder of fact could conclude that
plaintiff was subjected to adverse employment actions under circumstances raising an inference
of race-based discrimination, plaintiff has failed to establish a prima face case of discrimination.
Even assuming arguendo that plaintiff could establish a prima facie case, he has produced no
evidence to rebut the University’s legitimate nondiscriminatory reasons for its disciplinary
actions against plaintiff, consisting of plaintiff’s undisputed and well-documented disciplinary
history between 2011 and 2013. Plaintiff’s discrimination claims against the University are
accordingly dismissed.
B.

Discrimination Claims Against the Union

Plaintiff also claims that the Union engaged in race-based discrimination, breaching its
duty to provide fair representation with respect to the grievance which challenged plaintiff’s
five-day suspension and resulted in the Final Letter of Expectations. Specifically, plaintiff

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alleges that Union representative Marvin Galloway encouraged one of plaintiff’s coworkers to
file one of the sexual harassment claims that precipitated the suspension, and that the Union
failed to “represent” him by pursuing arbitration of his grievance contesting the suspension,
rather than settling it.
With respect to plaintiff’s claim that Galloway encouraged or assisted his coworkers in
filing sexual harassment claims, it is undisputed that the Union represented those coworkers as
well as plaintiff, and that it was obligated to support the rights of any and all of its represented
employees to make formal complaints of sexual harassment, even where those complaints were
made against others represented by the Union. Plaintiff provides no evidence that the claims
with which Galloway assisted were false or discriminatory, and again, does not deny having
engaged in the complained-of conduct.
Plaintiff also claims that the Union breached its duty to provide fair representation with
respect to his five-day suspension. A union breaches its duty of fair representation when it acts
in a manner that is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190
(1967). It is undisputed that the Union pursued a grievance on plaintiff’s behalf, and negotiated
a settlement which restored some back pay to plaintiff. It is further undisputed that after plaintiff
complained to the Union about Galloway’s representation, he was assigned a different Union
representative – Tracey Harrison – to assist him. Although plaintiff now complains that the
Union should not have settled the grievance but instead proceeded to arbitration, the Union’s
entry into a settlement that benefited plaintiff was, as a matter of law, within the “wide range of
reasonableness” that is permitted to unions in resolving labor disputes. Desmond v. Retail
Clothing Salesmen’s Union Local 230, 1991 U.S. Dist. LEXIS 12946 at *16-*17 (S.D.N.Y.

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1991) (where union’s decision to enter into a settlement agreement was within a wide range of
reasonableness, the union did not breach its duty of fair representation as a matter of law, even if
plaintiff disapproved of the settlement); Dolittle v. Ruffo, 1991 U.S. Dist. LEXIS 4072 at *36*37 (N.D.N.Y. 1991) (granting summary judgment to the union on breach of fair representation
claims, where the union negotiated a settlement favorable to plaintiff, even though plaintiff
refused to sign it and believed that the Union should have pursued a grievance instead, because
in the absence of evidence of bad faith, even “tactical errors are insufficient to show a breach of
the duty of fair representation”).
In any event, plaintiff has put forth no evidence that the Union’s actions were motivated
by discriminatory animus. Moreover, both Galloway and Harrison are, like plaintiff, AfricanAmerican, which as previously discussed undermines any suggestion that they were motivated
by racial bias. See e.g., Meyer, 2017 U.S. Dist. LEXIS 39766 at *21-*22.
Plaintiff also alleges that the Union failed to adequately represent him in meetings that
led up to his [later-reversed] termination, and/or after the termination occurred. However, it is
undisputed that Corey Kirkland, a Union representative (and, like plaintiff, an AfricanAmerican) represented plaintiff at the pre-termination meetings and actively advocated for him.
After the termination, the Union filed a grievance on plaintiff’s behalf, demanded arbitration
when that grievance was denied, and succeeded in obtaining the reversal of plaintiff’s
termination, and winning his reinstatement. 4 Plaintiff has provided no evidence that the Union

4 Although plaintiff complains that he did not receive back pay upon his reinstatement or receive unemployment
benefits, he offers no evidence or explanation as to how his failure to receive them resulted from any lapse in Union
representation. While the Union represented plaintiff at the arbitration of his termination grievance and his
unemployment hearing and advocated for him on both occasions, the ultimate decision of whether to award back
pay was within the sole discretion of the arbitrator, and the decision of whether to grant unemployment benefits was
made by an Unemployment Administrative Law Judge.

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acted in bad faith or otherwise discriminated against him in any way relative to the processing
and resolution of his grievances. In light of these undisputed facts, no reasonable factfinder
could determine that the Union engaged in race-based discrimination against the plaintiff.
C.

Retaliation Claims Against the University 5

Retaliation claims are analyzed using the McDonnell Douglas burden-shifting
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). On a motion for
summary judgment, the plaintiff must first establish a prima facie case of retaliation. Once such
a showing is made, 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).
A plaintiff makes out a prima facie case of retaliation by showing: (1) 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.
Id.; Kessler v. Westchester County Dept. of Soc. Servs., 461 F.3d 199, 205-206 (2d Cir. 2006).
According to his complaints, plaintiff claims that the University retaliated against him
(for unspecified actions) by enacting the 5-day suspension, and that it retaliated against him for
his filing of the initial, 2013 lawsuit by terminating his employment on July 10, 2013.

5 Plaintiff also vaguely appears to allege retaliation claims against the Union, accusing the Union of “letting” the
University terminate his employment and/or subject him to a hostile work environment. However, plaintiff does not
allege (let alone produce proof to establish) that there is any basis to hold the Union liable for these alleged acts by
the University. Therefore, to the extent that such claims have been sufficiently alleged, they are dismissed.

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With respect to the five-day suspension, plaintiff does not identify, nor does either
complaint ever allege, that plaintiff engaged in any protected activity prior to his suspension. As
such, it cannot form the basis for any claim of retaliation. With regard to the filing of the 2013
action on June 7, 2013, the University avers – and plaintiff does not dispute – that the first notice
the University received of that action was on August 15, 2013, when the complaint was served
upon it. Because this took place more than a month after plaintiff’s termination, plaintiff’s
termination cannot be said to have occurred in response to, or in retaliation for, plaintiff’s
commencement of the 2013 action.
Moreover, even if plaintiff had established a prima facie case of retaliation, as discussed
above, the University has set forth a legitimate, nondiscriminatory reason for its disciplinary
actions against plaintiff, including the suspension and the termination of plaintiff’s employment,
which plaintiff has failed to rebut. See generally Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (it is well-established that a non-movant cannot defeat
summary judgment with “unsupported assertions”). 6
III.

Plaintiff’s Claims in the 2015 Case
In attempting to make out a prima facie case of discrimination in the 2015 case, which

relates to plaintiff’s transfer to the Emergency Department, plaintiff identifies two “adverse
actions” which allegedly either resulted from discrimination, or were carried out in retaliation for
some protected conduct.

6 Plaintiff’s complaints in the 2013 consolidated case also make scattered allegations alluding to a hostile
work environment. However, plaintiff offers no allegations or evidence whatsoever concerning any race-based
offensive conduct, and as such, to the extent that plaintiff has attempted to allege a hostile work environment claim,
that claim is dismissed. While plaintiff also makes reference to a racist voicemail message that was left on his
cellular phone account by an unknown male in or around July 2013, he offers no evidence to identify the caller, or to
suggest that the voicemail was in any related to, caused by or known to anyone associated with either defendant.

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A.

October 2014 Temporary Paid Suspension

First, plaintiff claims that his temporary paid suspension during the University’s
investigation of the October 2, 2014 incident, wherein plaintiff allegedly interfered with the
discharge of a patient in the Emergency Department, was discriminatory.

In order to

demonstrate that it rises to the level of an adverse employment action, plaintiff must show that
the paid suspension effected “a materially adverse change in the terms and conditions of his
employment.” Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 85 (2d Cir. 2015).
Generally, “administrative leave with pay during the pendency of an investigation does not,
without more, constitute an adverse employment action,” Joseph v. Leavitt, 465 F.3d 87, 91 (2d
Cir. 2006), so long as the employer does not take “actions beyond an employee’s normal
exposure to disciplinary policies.” Perez-Dickson v. Bridgeport Bd. of Educ., 2017 U.S. App.
LEXIS 1189 at *5-*6 (2d Cir. 2017) (unpublished opinion). Here, plaintiff does not dispute that
he continued to be paid his full wages during the investigation, or that the investigation
concluded in his favor, and that he returned to his job with no discipline imposed.
Plaintiff offers no evidence that the University took any action beyond the temporary
paid suspension, or that the suspension had any negative affect on his employment. As such, the
suspension did not constitute an adverse action. See Brayboy v. O’Dwyer, 633 Fed. Appx. 557 at
558-59 (2d Cir. 202016) (where there is no evidence that employer’s placement of plaintiff on
paid leave during an investigation was anything more than “simply appl[ying] reasonable
disciplinary procedures to an employee,” district court did not err in granting summary
judgment) (unpublished decision).

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Even assuming arguendo that plaintiff could make some showing that the paid
suspension was an adverse employment action, there is no evidence whatsoever that it was
motivated by racial animus. Plaintiff testified that no one else engaged in the same conduct as he
on October 2, 2014 (so there are no employees with whom he can be compared on that scale),
and has offered no evidence that other employees who engaged in similar altercations were
treated any differently. To the extent that plaintiff testified that he believes the paid suspension
was imposed in “retaliation” for his having had work-related interpersonal conflicts with staff
members in the Emergency Department, such conflicts do not comprise “protected activity” for
purposes of establishing a retaliation claim.
As such, no reasonable finder of fact could conclude that plaintiff’s temporary paid
suspension was an adverse employment action, that it occurred under circumstances suggesting
discrimination, and/or that is was causally connected with plaintiff’s engagement in protected
activity.
B.

March 2016 Suspension and Transfer

Plaintiff also claims that his March 2016 suspension and transfer from the Emergency
Department to the Hospital store were discriminatory and/or retaliatory.
Initially, plaintiff has offered no evidence that his transfer to a position with identical pay
could be considered an adverse employment action. See Boza-Meade v. Rochester Housing
Authority, 170 F. Supp. 3d 535, 553 (W.D.N.Y. 2016) (where alleged adverse action is an
involuntary transfer, the “key inquiry” is whether the transfer is a “negative employment action
tantamount to a demotion”). To the extent that the suspension which preceded the transfer was
an adverse employment action (and even assuming arguendo that the transfer could be

16

considered an adverse action), plaintiff has failed to offer any evidence that either one occurred
under circumstances suggesting discrimination, or was connected with his engagement in
protected activity.
Plaintiff theorizes that the March 26, 2015 patient transport incident (involving an
incorrect eRecords entry) might have been caused by another African-American administrative
employee, whose name plaintiff does not know. Plaintiff speculates that this employee, acting
“in cahoots” with nurses who disliked plaintiff, might have stolen plaintiff’s account information
and deliberately made a false eRecord entry in plaintiff’s account to incriminate him. However,
plaintiff’s contention appears to be nothing more than rank conjecture: he offers no evidence to
support the idea that such a charade actually took place, let alone that the alleged participants
were in any way motivated by discriminatory animus on account of plaintiff’s race. More
importantly, plaintiff offers no evidence by which the conduct of his accused coworkers could be
imputed to the University, such that its decision to suspend plaintiff in response to the March 26,
2016 incident might be considered discriminatory. As such, no reasonable finder of fact could
find that the plaintiff’s suspension and transfer following the March 26, 2015 incident were
adverse actions that occurred under circumstances suggesting discrimination, and/or that plaintiff
has rebutted the University’s legitimate, nondiscriminatory reason (plaintiff’s failures to follow
Emergency Department procedures) for its decision to suspend and transfer plaintiff.
Plaintiff also testified that he believed his suspension and transfer were acts of retaliation
for his filing of an EEOC charge against the University on February 3, 2015. However, plaintiff
makes no claim that any of the University staff members involved in the investigation of his
conduct on March 25, 2015 were aware that an EEOC charge had been filed against the

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University. Furthermore, as discussed above, even assuming arguendo that pertinent University
employees could be presumed to have been aware of the charge, once again, plaintiff has
produced no evidence whatsoever to rebut the University’s legitimate, nondiscriminatory reason
for plaintiff’s suspension and transfer – to wit, plaintiff’s failures to follow double identification
procedures and/or to properly record patient locations in eRecord, both of which undisputedly
jeopardized patient safety. 7
CONCLUSION
For the foregoing reasons, the defendants’ motions for summary judgment (13-CV-6290,
Dkt. #55, #56, and 15-CV-6285, Dkt. #25) are granted, and plaintiff’s complaints in all three of
his pending actions against the defendants (13-CV-6290, 14-CV-6264 and 15-CV-6285) are
dismissed in their entirety, with prejudice. 8
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
May 22, 2017.
7 Although plaintiff disputes the contention that he made incorrect eRecord entries, his other alleged failures to
follow Emergency Department policies, as well as the University’s averments that it followed proper procedures in
investigating the March 26, 2015 incident and concluding that plaintiff had in fact made an improper eRecord entry
on that date, appear uncontested.
8 The University has also asked that the complaints be dismissed as a penalty for plaintiff’s having made – and
refused to correct—false statements concerning his earnings in his application to proceed in forma pauperis, (15CV-6285, Dkt. #2), as well as his submission of a fraudulent unsigned affidavit. (15-CV-6285, Dkt. #32 at 3, n.3).
The Court is indeed troubled by plaintiff’s misrepresentations, particularly given that he is represented by counsel.
Given the well-settled preference for addressing matters on their merits and the possibility, however slim, that the
errors in question were made carelessly rather than in bad faith, the Court has opted to address the instant motion
solely on its merits. The University also notes plaintiff’s history of frivolous litigation against the University, and
asks the Court to prohibit plaintiff from filing additional actions against the University without leave of Court. That
request is denied without prejudice, as such relief must be requested in the form of a separate motion, pursuant to
Fed. R. Civ. Proc. 11(c)(2).

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