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finding no nexus where remarks made more than five months before termination
Summary of this case from Jenkins v. Cnty. of Wash.Opinion
01CV4031(JG)
November 6, 2003
ROSALYN MALDONADO, ESQ., Brooklyn, New York 11209 for Plaintiff MARK A. GLOADE, ESQ., Office of Legal Affairs, New York 11021 for Defendant
MEMORANDUM AND ORDER
Plaintiff Liberty M. Argueta brings this action alleging that defendant North Shore Long Island Jewish Health System, Inc. ("North Shore") discriminated against her on the basis of her race, color, and national origin, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., and the New York State Human Rights law, N.Y. Exec. Law § 626, et seq. North Shore now moves for summary judgment, arguing,inter alia, that based on the undisputed facts of this case, Argueta cannot sustain her burden of showing an improper discriminatory motive on the part of North Shore.
Argueta's complaint included a claim for age discrimination pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. She has since withdrawn this claim. (Pl.'s Mem. Law Opp'n Summ. J. at 15 (Sept. 22, 2003).)
BACKGROUND
The following facts are relevant for purposes of this motion. In September 1991, North Shore hired Argueta as a temporary clerk in its Outpatient Billing Department ("Outpatient Billing" or the "Department"), (Dep. of Liberty M. Argueta at 9 (Aug. 22, 2002) ("Pl. Dep.").) After filing a complaint with the employee liaison regarding North Shore's alleged discriminatory practices in promoting minority employees, Argueta was promoted to the permanent position of Biller in August 1992. (Dep. of Violetta V. Argueta at 48-49 (Aug. 21, 2002) ("Argueta Dep.").)
Sometime in 1994, Argueta filed another complaint regarding discrimination in the workplace. (Id. at 55.) In response to this complaint, North Shore transferred Argueta's supervisor to another department and replaced that supervisor with Diolinda Gonzalez, an Hispanic woman. (Id.) Gonzalez delegated the responsibility of assigning employees vacation time and overtime to her assistant, Darlene Egan. (PL Dep. at 28.) Argueta repeatedly complained to Gonzalez that Egan was favoring white employees when it came to vacation and overtime distribution. (Id. at 60-61.) When Argueta made such complaints, and requested particular vacation time, her requests were honored. (PI. Rule 56.1 Statement ¶ 5 (Aug. 2, 2003) ("PLR. 56.1)")
On February 9, 2000, some of the Department's employees held a breakfast for Gonzalez's birthday. (Pi. Dep. at 10.) Argueta did not contribute when money was collected to pay for the breakfast, but she received permission from a contributing coworker to take a bagel from the breakfast table, (Id.) After returning to her desk with the bagel, Argueta was approached by Francis Silva, a coworker, who told Argueta that Stacy Schreiner, also a coworker, was complaining about Argueta taking a bagel (Id.)
Argueta walked over to Schreiner's desk, and what happened next is subject to dispute. According to Argueta, as she was talking to Schreiner at Schreiner's desk, Rochelle Levenberg, also a coworker, came over and grabbed Argueta's hands, pushing them down, (Id. at 11.) Argueta shook Levenberg off, at which point Schreiner and Levenberg yelled that Argueta had hit Levenberg, (Id. at 12) Before returning to her desk, Argueta saw Levenberg rub her (Levenberg's) forearm with her bracelet in order to cause redness. (Aff. of Liberty M Argueta ¶ 10 (Sept. 22, 2003) ("PI. Aff.").) Up to that point, the only people paying attention to these events were Argueta, Levenberg, and Schreiner. (PL Dep. at 13.)
While I credit Argueta's version of this incident for purposes of this motion, see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), I set out the facts alleged by North Shore as well.
According to North Shore, after Silva relayed Schreiner's comment to Argueta, Argueta became visibly upset, went to Schreiner's desk, and began yelling at her. (Dep. of Rochelle Levenberg at 57-58 (Sept. 18, 2002) ("Levenberg Dep."); Aff. of Stacy Schreiner ¶¶ 7-8 (July 25, 2003) ("Schreiner Aff."); Aff. of Frances Silva ¶ 7 (July 25, 2003) ("Silva Aff.").) Levenberg came over, touched Argueta's arm, and said, "Don't do this, please." (Levenberg Dep. at 64.) Argueta then repeatedly hit Levenberg on the forearm with the bagel. (Id. at 65-66.) This attack was witnessed by other Department employees, Including Schreiner, Carol Paulich, temporary employee Martin Dambreville, and Darlene Egan, a supervisor in the Outpatient Follow-up Department. (Id. at 66-67; Dep. of William Brennan at 31, 34-39 (Oct. 22, 2002) ("Brennan Dep."); Aff. of Darlene Egan ¶ 7 (July 25, 2003) ("Egan Aff."); Aff. of Carol Paulich ¶¶ 6-7 (July 25, 2003) ("Paulich Aff."); Schreiner Aff. ¶¶ 10-11.)
North Shore's response to this incident between Argueta and Levenberg is undisputed. Just after the incident occurred, William Brennan, the Associate Director of Finance, and Caryl Howell, the Assistant Director of Patient Accounts, interviewed Levenberg, who recounted North Shore's version of the events, set out above. (Brennan Dep. at 27; Dep. of Caryl Howell at 49-50 (Sept, 17, 2002) ("Howell Dep,"),) They were joined by Gonzalez (Dep. of Diolinda Gonzalez at 71-72 (Sept. 17, 2002) ("Gonzalez Dep,"),) Brennan and Howell also saw Levenberg's arm, which was swollen. (Brennan Dep. at 28.)
Brennan spoke next with Argueta, who repeatedly denied striking Levenberg and set forth her own version of the events, as described above. (Pl. Dep. at 15-16.) Brennan then spoke with Schreiner, Paulich, Egan, and Dambreville, all of whom stated that Argueta struck Levenberg. (Brennan Dep. at 31-32, 34-39; Egan Aff. ¶ 9; Paulich Aff. ¶¶ 9-10; Schreiner Aff. ¶ 12.) Meanwhile, after her conversation with Brennan, Argueta had returned to her desk, and finished the day. (PI. R. 56.1 at 59.)
The next day, February 10, 2000, Brennan called Lauren Ruggiero, the Human Resources Manager at North Shore's Westbury facility, seeking advice regarding the appropriate disciplinary response where his investigation established that an employee struck a coworker. (Brennan Dep, at 51-52.) Ruggiero informed Brennan that North Shore generally terminated employees who engaged in one-sided violence. (Id. at 52,) Later that day, Brennan and Ruggiero met with Argueta and informed her that her employment was terminated effective immediately because she had struck Levenberg. (Id. at 50-51; PL Dep. at 67-68, 70-71; Dep. of Lauren Ruggiero at 32 (Nov. 5, 2002) ("Ruggiero Dep.").)
Argueta subsequently requested a grievance hearing, which was held before Paul Giordano, North Shore's Assistant Executive Director of Human Resources, in late February or early March of 2000, (Argueta Dep, at 99; Brennan Dep. at 54-55; Dep. of Paul Giordano at 6, 24-25 (Oct. 22, 2002) ("Giordano Dep."); Pl. Dep. at 77.) North Shore did not allow a lawyer to represent Argueta at the hearing, though she was afforded a Spanish interpreter. (Pl. Dep, at 78, 87.) At the hearing, Giordano heard statements from Levenberg, Schreiner, and Dambreville, all of whom said that Argueta struck Levenberg. (Giordano Dep. at 35-37; Levenberg Dep. at 81-83; PL Dep, at 79-80, 82, 179-80.) Giordano also heard from Silva, an Hispanic employee who reported that she had not witnessed the incident. (Brennan Dep. at 55; Silva Aff. ¶¶ 8, 10.) Argueta stated at the hearing that she did not strike Levenberg, though Carrie Senzer, the interpreter, remembers Argueta conceding that she "touched" Levenberg with the bagel. (Giordano Dep, at 41; PL Dep, at 86; Deposition of Carrie Senzer at 54 (Oct. 31, 2002) ("Senzer Dep,"),)
Based on the hearing, Giordano concluded that Argueta had hit Levenberg, in violation of North Shore policy, and had therefore been properly terminated from the Department. (Giordano Dep, at 42, 47;see also Brennan Dep, at 57,) Giordano also decided, however, to reinstate Argueta at a different North Shore facility, with the same rate of pay and benefits, (Giordano Dep. at 42.) North Shore offered Argueta a position as a filing clerk in the Radiology Department. (Argueta Dep, at 102; Pl Dep at 89-90; Aff. of Kim Schneider ¶ 3 (Aug 18, 2003) ("Schneider Aff"),) Plaintiff rejected North Shore's offer, however, because, having suffered a back injury on the job, she had difficulty bending down, and was thereby precluded from performing many filing tasks. (Argueta Dep. at 104.) In fact, after her injury, Argueta's filing responsibilities had been assigned to someone else. (Id. at 41-42.) Argueta therefore requested, through her daughter, Violetta Argueta — an attorney — that she be reinstated to her former position as a Biller in Westbury, (Id. at 105-06, 112; Pl. Dep. at 90; Schneider Aff. ¶ 6.)
Though Argueta was contacted by Westbury's Human Resources Department regarding employment in other positions (Argueta Dep. at 113-15; Schneider Aff. ¶ 7), Argueta did not pursue this opportunity because she felt that North Shore had no desire to correct the alleged disparate treatment that "permeated" Argueta's experience at North Shore. (Pl. R, 5G.1 ¶ 18.) Argueta was therefore terminated effective July 26, 2000. (Schneider Aff, ¶¶ 8-9,)
DISCUSSION
A. Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party," Id.
Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial."Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
In a discrimination case such as this, additional considerations should be taken into account. "A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue,"Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). Affidavits, depositions, and other evidence "must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination," as direct evidence of intentional discrimination is rarely available, Id.
B. Areueta's Title VII Claim
Arguenta claims that North Shore terminated her on the basis of her race, color, and national origin, in violation of Title VII, Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
In the absence of direct evidence of discrimination, a plaintiff in an employment discrimination case usually relies upon the three-step test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell Douglas test, the burden to persuade the trier of fact "that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Tex. Dep't of Cmt v. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden of production, however, shifts as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.Id. at 252-53 (citation omitted) (quoting MeDonnell Douglas, 411 U.S. at 802). Thus, a court must enter summary judgment for a defendant when the plaintiff either fails to put forth a prima facie case, or fails to present legally sufficient evidence contradicting a well-presented, legitimate reason, offered by the defendant, for the adverse employment action.
In order to establish a prima facie case of discrimination, Argueta must demonstrate that (1) she belongs to a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) circumstances surrounding the employment action give rise to an inference of discrimination. See Graham v. Lone Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). As the plaintiffs burden of establishing a prima facie case is de minimis, see, e.g., Kerzer v. Kinely Mfg., 156 F.3d 396, 401 (2d Cir. 1998), I assume without deciding that Argueta has established her prima facie case, and proceed to determining whether North Shore's proffered nondiscriminatory reason may, viewing the facts in the light most favorable to Argueta, be viewed as a pretext for discrimination.
North Shore contends that it fired Argueta because she struck a coworker. In support of that contention, North Shore submits substantial evidence to show that Argueta did in fact strike Levenberg on February 9, 2000. Argueta, for her part, strenuously denies doing so. Whether Argueta actually struck her coworker, however, is not the relevant inquiry, For the purposes of deciding whether Argueta was terminated based on her race, color, or national origin, the relevant question is not what happened, but rather, what the decisionmakers believed happened, Argueta presents no evidence suggesting that those charged with the decision to terminate her harbored any discriminatory animus whatsoever, I address plaintiffs contentions in turn.
1. Allegations of Discrimination Prior to 1995
As outlined above, Argueta alleges that, due to discriminatory promotion practices at North Shore in 1992, she was not promoted to the full-time position of Biller until she filed an internal complaint alleging discrimination. After filing the complaint, Argueta was promoted to the permanent position of Biller in August 1992.
Later, in response to an internal complaint filed by Argueta in 1994, again alleging discrimination, North Shore transferred Argueta's supervisor to another department and replaced that supervisor with Gonzalez, an Hispanic woman. Argueta alleges that Egan, Gonzalez's assistant, favored white employees when assigning vacation and overtime. When Argueta complained about this practice to Gonzalez, and requested particular vacation time, her requests were honored.
I reject Argueta's implicit assertion that these events constitute admissions of invidious discrimination. North Shore has never made such admissions, and on this motion denies that any discrimination occurred. (See Def.'s Mem. Law Supp. Summ, J. at 22 ("Def. Mem."); Def.'s Reply Mem, Law Supp, Summ, J, at 4 n. 1 ("Def. Reply").) Moreover, it would be both unwise and unfair to employers to treat every accommodation made in response to an allegation of discrimination as an admission of discrimination. Such an approach would discourage (by penalizing) precisely the sort of behavior the law should encourage.
Furthermore, even if these events evidenced discrimination, they are too remote in time to Argueta's February 10, 2000, termination to create a material question as to North Shore's discriminatory animus. These events occurred between six to eight years prior to her termination, did not involve the decisionmakers involved in her termination, and, if anything, show only that North Shore management corrected discrimination in the workplace when notified of it. See Haskell v. Kaman Corp., 743 F.2d 113, 120(2dCir. 1984) (holding that statements made by the company's president over a period of fifteen years that referred to the age of some employees should have been excluded from evidence).
2. Other Office Fights Not Resulting in Termination
Arguenta argues that "no employee in the [outpatient billing] department had been terminated for fighting under the nonviolence policy prior to February 10, 2000," (Pl's Mem. Law Opp'n Summ, J, at 19 (Sept, 22, 2003) ("Pl. Mem.").) While one "common and especially effective method" for a plaintiff to discharge his or her burden of showing circumstances giving rise to an inference of discrimination is to show "that the employer treated a similarly situated employee differently,"McGuinness v. Lincoln Hail, 263 F.3d 49, 53 (2d Cir. 2001), this showing requires that the other employee or employees be "similarly situated in all material respects" Shumwav v. UPS, 118 F.3d 60, 64 (2d Cir. 1997), Argueta's allegations fall far short of this standard.
Argueta claims that prior to her termination, non-Hispanic employees in the Department engaged in fights but were not terminated. (PI. R. 56.1 ¶ 19.). In support of this claim, she cites the depositions of Gonzalez and Ruggiero. That testimony, however, does not support Argueta's claim: Gonzalez testified only that she had no knowledge of whether anyone else was fined on the spot for rude behavior, arguments, or touching during the period of her employment at North Shore. (Gonzalez Dep. at 86-87.) Ruggiero, for her part, testified only that she had no examples of violence resulting in immediate termination prior to Argueta. (Ruggiero Dep. at 24.) In short, Argueta is unable to point to specific similarly situated employees of a different race, color, or national origin, who engaged in one-sided violence in the workplace and whose employment was not terminated.
3. English-Only Policy
The EEOC presumes that rules requiring employees to speak only English in the workplace violate Title VII, and therefore closely scrutinizes such rules. See 29 C.F.R. § 1606.7. But see Garcia v. Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) ("[T]he enactment of an English-only while working policy does not inexorably lead to an abusive environment for those whose primary language is not English.") In her affidavit, Argueta states that Gonzalez instructed her not to speak Spanish in the workplace because North Shore had an English-only policy. (PI. Aff. ¶ 9.) According to Argueta's deposition testimony, however, though Gonzalez had told her that the two could not speak Spanish with each other in the workplace, Gonzalez did not mention an English-only policy. Argueta also testified that Gonzalez had not explained the reason for her instruction not to speak Spanish. (Pl. Dep. at 18-19.)
North Shore denies having an English-only policy (see Def. Mem. at 20-21; Def, Reply at 6), and presents evidence to that effect (see Gonzalez Dep. at 101 ("I was told that it was illegal to tell the employees that they couldn't speak any other language."); id. (testifying that North Shore does not prohibit employees from speaking other languages); cf. Senzer Dep. at 10 (testifying that she speaks her native language on the job "all the time")).
Argueta's earlier deposition testimony is at odds with her affidavit. Accordingly, I "follow the rule that `a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.'" Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997) (quoting Haves v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996)); see also Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987) ("It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment ").
Describing the conversation in her deposition, Argueta testified as follows:
A. [T]he supervisor [Gonzalez] told me don't speak with me in Spanish because [Schreiner] is going to . . . make a complaint [,]
Q. Did Ms. Gonzalez say that she could rot speak Spanish with you because Carol Howell said not to speak Spanish with you?
A. Yes.
Q. Did she explain why Ms. Howell had told her th at?
A. No.
(Pl. Dep. at 17-19.) In her, affidavit, however, she states, "Gonzalez instructed me not to speak Spanish in the workplace because Defendant had an English only policy." (Pl. Aff, ¶ 9,)
In any event, even if Gonzalez instructed Argueta not to speak Spanish with her, that is not sufficient evidence for a rational trier of fact to infer a discriminatory animus on the part of North Shore itself, In her affidavit, Argueta stated that Gonzalez instructed her not to speak Spanish in the workplace, (Pl. Aff. ¶ 9.) According to Argueta's deposition, however, there was no blanket English-only policy; rather, Gonzalez instructed Argueta not to speak Spanish with her, i.e., Gonzalez, (See PL Dep. at 17-19.) Again, to the extent these statements are contradictory, I disregard the affidavit. See Raskin, 125 F.3d at 63;Mack, 814 F.2d at 124. Argueta's allegation that North Shore had an English-only policy is further belied by the uncontradicted evidence that Argueta regularly spoke Spanish with other employees in the hospital cafeteria (PL Dep. at 20-22), that she was provided a Spanish interpreter at her grievance hearing before Giordano (id. at 78), and that Gonzalez sometimes practiced her Spanish with Argueta and other employees (id. at 17-18).
Furthermore, even taking as true the allegation that North Shore had an English-only policy, Argueta establishes no causal connection between that policy and her termination, Pursuant to Title VII, Argueta must demonstrate that North Shore fired her "because of her protected status. 42 U.S.C. § 2000e-2(a)(1)-(2); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("[A] reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason." (internal quotation marks omitted) (emphasis in original)); Bicker staff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999) ("[P]laintiff then has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision, and that race was." (internal quotation marks omitted)); Velasquez v. Goldwater Mem'l Hosp", 88 F. Supp.2d 257, 262 (S.D.N.Y. 2000) ("[P]laintiff must present sufficient evidence to enable a rational trier of fact to find that she was terminated `because of her national origin.").
In Velasquez, the court held that" [d]emonstrating only that she was terminated for violating an English-only policy does not satisfy this burden. Classification on the basis of language does not by itself' identify members of a suspect class1 and would not support an inference of intentional national origin discrimination." Id. (citingSoberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) ("A classification is implicitly made, but it is on the basis of language, i.e., English-speaking versus non-English-speaking individuals, and not on the basis of race, religion or national origin. Language, by itself, does not identify members of a suspect class.")).
I need not go that far for purposes of this motion, because Argueta offers no evidence that she was fired because of North Shore's alleged English-only policy. The alleged statement by Gonzalez that North Shore had an English-only policy was made in July 1999. (PI. Dep. at 18-19.) North Shore fired Argueta on February 10, 2000, more than six months later. Further, Gonzalez, the maker of the alleged remark, was not involved in the decision to terminate Argueta. (See Gonzalez Dep. at 102-03; Pl. R. 56. ¶ 11.) See McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. 1997) (finding that allegations of bias against a supervisor who was not consulted about a termination decision "provide no basis for imputing to [the decisionmaker] an invidious motivation for the discharge"). Most importantly, Argueta does not allege that she was fired for violating the English-only policy, Without such a link, no rational juror could conclude that Argueta was fired because of North Shore's alleged English-only policy.
4. Discriminatory Remarks by Coworkers
Argueta alleges that her white coworkers made discriminatory comments to her in the workplace. These Include derogatory comments about her being brown, imitations of her accent, claims that Arguenta's English was difficult to understand, and jokes that her frequent trips to Miami, Florida, were related to drugs because Hispanics are drug dealers. (Pl. Aff, ¶ 8.) Notwithstanding Argueta's claim that Gonzalez did not address these discriminatory comments (id. ¶ 9), a claim I accept as true, the comments, though surely upsetting to Argueta, were simply stray remarks.
Specifically, Argueta testified that on one occasion, Howell told Argueta that "she wanted to be brown, like [Argueta]." (PI, Dep. at 177,) As to her accent, Argueta testified that Levenberg claimed never to be able to understand Argueta, especially when Argueta tried to pronounce pat tents' last names (id. at 38-40, 167-68)-no one else claimed not to understand her (id. at 43). Ho well told Argueta that because Argueta had an accent, the French must have understood her when Argueta traveled there, (Id. at 175-76.) Finally, on one occasion, Levenberg asked Argueta if her frequent trips to Miami, Florida, were drug-related, because Hispanics were drug dealers. (Argueta Dep. at 66, 74; PL Aff, ¶ 8; PI. Dep, at 41, 43.)
Stray remarks, without more, are generally not enough to support a finding of discrimination. See Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994); see also Panzer v. Norden S vs. Inc., 151 F.3d 50, 56 (2d Cir. 1998) (citing Woroski for the proposition that "stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination"). "In particular, "`stray remarks in the workplace,'" `"statements by nondecisionmakers,'" and `"statements by decisionmakers unrelated to the decisional process'" are not by themselves sufficient to satisfy plaintiffs burden of proving pretext, Burrell v. Bentsen, No. 91 Civ, 2654; 1993 U.S. Dist. LEXIS 18005, at *29-*3G (S.D.N.Y. Dec. 21, 1993) (quoting Radabaugh v. Zip Feed Mills. Inc., 997 F.2d 444, 448 (8th Cir. 1993) (quoting Price Waterhouse v, Hopkins, 490 U.S. 228, 278 (1989) (O'Connor, I, concurring))), aff'd, 50 F.3d 3 (2d Cir. 1995). Stray remarks are not evidence of discrimination "if they are not temporally linked to an adverse employment action of if they are made by individuals without decision-making authority." Sergilus v. Covenant House Under 2.1, No. 96 Civ. 6210, 1999 U.S. Dist. LEXIS 14254, at *6 (S.D.N.Y. Sept. 15, 1999) (citing Price Waterhouse, 490 U.S. at 278 (O'Connor, J., concurring);Cone v. Longmont United HOSP. Ass'n 14 F.3d 526, 531 (10th Cir. 1994); Campbell v. Daytop Vill Inc., No. 97 Civ. 4362, 1999 U.S. Dist. LEXIS 6943, at *3 (S.D.N.Y. May 7, 1999); Orisek v. Am. Inst. of Aeronautics Aeronautics, 938 F. Supp. 185, 192 (S.D.N.Y, 1996)).
In Danzer, an age discrimination case, a divided panel of the Second Circuit reversed the district court's grant of summary judgment for defendants, where, inter alia, Danzer's supervisor had asked him to prepare a chart reflecting the ages of certain employees, held a meeting of senior staff where he explained that a goal of the upcoming year was to hire younger people, called the current staff "altasic cockers" (Yiddish for, loosely translated, "old fogies"), and shortly thereafter began denying funding Danzer needed to successfully perform his job, removing him from projects, and issuing much poorer evaluations of Danzer than he had ever received in the past. 151 F.3d at 53; see also Sergilus, 1999 U.S. Dist. LEXIS 14254, at *6 (holding that comments by Haitian plaintiffs supervisor — who assisted in plaintiffs termination — that plaintiff "smelled" and that "all Haitians smelled" were not made close enough in tune to plaintiffs termination to be evidence of discrimination; nor was there any nexus between the comments and the decision to fire plaintiff);id. at * 7 ("The fact that co-workers called Plaintiff a `fucking Haitian' and mimicked his speech is not evidence of discrimination because these comments were not made by people who had a role in the decision to terminate Plaintiff,").
Argueta presents no other indicia of discrimination in the context of which her coworkers' remarks could be deemed anything but "stray," There is no evidence in the record that Brennan, Ruggiero, Giordano, or anyone participating in the decision to fire Argueta for that matter, ever uttered such a remark, Argueta concedes that Gonzalez, who allegedly did nothing when the remarks were reported by Argueta, was not involved in the decision to terminate Argueta. (See Gonzalez Dep, at 102-03; PI. R. 56.1 ¶ 11) Though it is unclear when some of the remarks were made, the Miami remark was made in August 1999 (Argueta Dep, at 74), more than five months before the February 10, 2000 decision to fire Argueta. Argueta cannot defeat summary judgment based on these stray remarks, as she has failed to establish a nexus between them and North Shore's decision to fire her.
5. Discriminatory Environment
Throughout her complaint and memorandum of law opposing summary judgment, Argueta attempts to create a "mosaic" of discrimination on the part of North Shore. (PL Mem. at 25 (quoting Robin v. ESPO Eng's Corp., 200 F.3d 1081, 1089 (7th Cir. 2000)); see also id, at 21 (describing nine years of discriminatory remarks); Compl. ¶ 1 ("Plaintiffs white co-workers . . . repeatedly harassed her about her race, color and national origin creating a hostile work environment."),) To the extent that Argueta makes a "the whole is greater than the sum of its parts" argument, I reject It, There is no nexus between any of the individual acts of alleged discrimination and the decision to terminate Argueta, as described above. It follows that there is no connection between that decision and the alleged discrimination considered as a whole. Furthermore, Argueta has explicitly stated that she is not making a hostile work environment claim. (PI. Mem. at 26.)
6. North Shore's Decision to Fire Argueta
Even based on the facts as represented by North Shore, its decision to fire Argueta, a competent employee with many years of experience with the company, is arguably harsh. It is not the province of this Court, however, to second-guess the nondiscriminatory business decisions of private employers. See Cerwinski v. Ins. Servs. Office, No. 95 Civ. 1766, 1996 U.S. Dist. LEXIS 14509, at *13 (S.D.N.Y. Oct. 3, 1996) (holding that even if the employer is wrong about its nondiscriminatory reason to terminate an employee, so long as it is in fact the reason the employee is terminated, then "no matter how medieval . . . [the employee]'s practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [the plaintiff] cannot proceed with her claims" (ellipsis in original) (internal quotation marks omitted)); cf. Norton v. Sam's Club, 145 F.3d 114, 120 (2d Cir. 1998) ("[T]he ADEA does not make employers liable for doing stupid or even wicked things; it makes them liable for discriminating . . ." (emphasis in original)); Thomely v. Penton Publ'g. Inc., 104 F.3d 26, 29 (2d Cir. 1997) ("Absent a showing by the plaintiff that the employer's demands were made in bad faith, an employer who is sued on allegations of age discrimination is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury," (citation omitted)).
The record is simply devoid of any evidence that North Shore's actions were taken with discriminatory intent. Therefore, though 1 am mindful that 1 must draw all reasonable inferences in favor of Argueta, 1 nevertheless conclude that she has failed to raise a genuine issue of material fact as to whether North Shore's nondiscriminatory reason for terminating her was false.
As the State of New York would subject Argueta's state claim to the same McDonnell Douglas analysis, see N. Shore Univ. Hosp. v. Rosa, 86 N.Y.2d 413, 419-20 (1995), it is also dismissed.