Opinion
01 Civ. 5410 (CBM), 89922
April 5, 2004
Laura M. Dilimetin, Dilimetin Dilimetin, New York, NY, for Plaintiff
Michael DiChiara, Corporation Counsel of the City of New York, New York, NY, for Defendant
OPINION
BACKGROUND
Plaintiff Perla Punsal, a former employee of defendant Mt. Sinai, filed this lawsuit in June, 2001 claiming that defendants discriminated against her on the basis of age and nation of origin and retaliated against her for filing an administrative complaint alleging discrimination. She charged them with violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., New York State Executive Laws §§ 296 and 297, and Title 8 of the New York City Administrative Code.
FACTS
Plaintiff, a Filipino woman who was 57 years old on the last date she reported for work, was hired by defendant Mt. Sinai in 1987. In that capacity, plaintiff served as a pathology laboratory supervisor at Queens Hospital Center ("QHC"). Defendant Dr. Susanna Levy, age 65 at the time plaintiff ceased working for Mt. Sinai, was plaintiff's supervisor at QHC from 1996 through the duration of plaintiff's employment.
In 1998, Dr. Cyro Calas, another technologist and supervisor at QHC, suffered a heart attack and could not return to work. According to plaintiff, Calas's departure led to her being promoted to senior supervisor of the lab (although Dr. Levy continued to serve as plaintiff's supervisor). See Punsal Decl. at f 4. Because the lab needed more than one supervisor, Yannick Louis, a non-Filipino woman 43 years of age, was hired to replace Calas in 1999. Innes Decl. at ¶ 9-10; Louis Dep. at 38-40; Levy Dep. at 30.
Plaintiff disputes the factual proposition that Louis was hired to replace Calas on the grounds that Louis was actually hired to replace her, as part of defendants' campaign to get rid of plaintiff due to her age and nation of origin. Punsal Decl. at ¶ 5. plaintiff's objection appears to confuse "facts" with "argument" because in her deposition, Punsal admits that Louis, like plaintiff, was a supervisor, and was hired as "a replacement for one of those who left." Punsal Dep. at 73.
On or about June 15, 1999, Dr. Levy sent plaintiff two memoranda. The first memorandum, entitled "insubordination," addresses plaintiff's failure to promptly inform Dr. Levy that a newly hired technologist did not report to work. Def.'s Ex. H. The letter states that the employee was supposed to arrive the morning of June 14th, but plaintiff did not inform Dr. Levy of the employee's failure to appear until a meeting later that same day. Dr. Levy charges: "Your failure to inform your supervisor is insubordination and endangers the laboratory's operation. As a supervisor, it is your duty to inform your superior of all personnel and other issues." Id. This same memorandum charges plaintiff with failing to adhere to Levy's directive, communicated to plaintiff four days earlier, to discontinue overtime coverage for lunch. The second memorandum is entitled "negligence." Id. In it, Levy charges plaintiff with failing to conduct a proficiency test for four working days (six calendar days). Id. Levy writes: "Proficiency testing must mimic patient sample testing. At no time do we delay patient testing for 6 calendar days." Id.
On or about June 17, 1999, Punsal attempted to speak with Dr. Gezerov, Director of Pathology, about her perception that Levy was discriminating against her. Punsal Dep. at 83. Dr. Gezerov directed Punsal to speak with Veronica Henry, Pathology Laboratory Manager. Punsal offered Henry the following examples of discrimination: Levy favored Louis; Levy and Louis made changes without telling her; Levy and Louis entered her office on one occasion and took over plaintiff's scheduling duties; Levy asked Louis to tell the other technologists what to do; Pathology Department books and manuals were removed from her office while she was away on leave earlier in the month; and based on statements made by Louis, she thinks Levy must have been "spreading around" discrimination because, otherwise, Louis would not have reason to make such statements. Id. at 81-86.
Plaintiff took a medical leave of absence from QHC on June 22, 1999. She ceased work due to depression, anxiety, hypertension and headaches. Def.'s Ex. D. She began to receive short-term disability benefits at this time.
On or about July 16, 1999, plaintiff filed a joint complaint with the State Division of Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC") (hereinafter "SDHR/EEOC complaint") exclusively on the grounds that defendants discriminated against her on the basis of age.
On September 7, 1999, Mt. Sinai hired Janet Goldin to fill in for plaintiff while she was out on leave. Innes Decl. at ¶ 19. At the time, Goldin was 51 years of age. Id.
In December of 1999, plaintiff's short-term disability benefits were discontinued.
On or about May 3, 2000, Hazel Copeland from Mt. Sinai's Human Resources Department, sent plaintiff a letter informing plaintiff that Mt. Sinai could not hold Punsal's position open for her any longer. The letter reads:
"A review of your records indicates that you have been unable to work since June 21, 1999. As I am sure you understand, we can no longer hold your position for you. If your medical condition changes to the extent that your are able to return to work and assume your full duties as Laboratory Supervisor, please contact me."
Def.'s Ex. E. On May 15, 2000, defendants' insurance carrier, UNUM, sent Copeland a letter stating that plaintiff was no longer eligible for disability benefits based on its review of Punsal's claim. Def's Ex. I. UNUM's letter to plaintiff justifies its decision on the grounds that "according to our review of the medical records provided, there is no objective evidence demonstrating restrictions or limitations which would prevent you from performing each of the material duties of the occupation that you regularly perform for your Employer." Def.'s Ex. D. Plaintiff appealed UNUM's denial, but on September 6, 2000, UNUM sent Copeland another letter reaffirming its decision to refuse plaintiff long-term disability benefits. Def.'s Ex. I.
When plaintiff still had not returned to the lab at QHC, Janet Goldin became a permanent replacement for plaintiff on October 2, 2000.
On May 21, 2001, the EEOC issued plaintiff a "Notice of Right to Sue" letter in which it informed plaintiff that the Commission was closing plaintiff's case. Pl.'s Ex. G. On January 29, 2003, the State Division of Human Rights sent plaintiff a letter stating that the Division declined to notice Punsal's complaint for a hearing on the grounds that "processing the complaint will not advance the State's human rights goals." Id.
ISSUE
Defendants move for summary judgment on the grounds that this court does not have jurisdiction over plaintiff's Title VII claims relating to national origin discrimination and plaintiff's age discrimination and retaliation claims fail as a matter of law.
STANDARD OF REVIEW ON SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
Trial courts must be particularly cautious in awarding summary judgment in employment discrimination actions where intent is at issue.Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81, 87 (2d Cir. 1996). From this cautionary warning, however, it does not follow that a plaintiff is absolved from the responsibility of producing sufficient evidence from which a reasonable jury could return a verdict in plaintiff's favor. Welland v. Citigroup. Inc., 2003 WL 22973574, at 5 (S.D.N.Y. Dec. 17, 2003), citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 461 (2d Cir. 2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460 (2001). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harasing trials-apply no less to discrimination cases than to commercial or other areas of litigation." Finney v. Planned Parenthood of New York City, Inc., 2003 WL 22928730, at 3 (S.D.N.Y. Dec. 10, 2003)citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985).
ANALYSIS
I. Plaintiff's Title VII Claim Alleging Discrimination Based On Nation of Origin
Plaintiff Punsal's SDHR/EEOC complaint contains an allegation of discrimination based on age, but does not contain a similar allegation of discrimination based on nation of origin or retaliation relating to such a claim. Def.'s Ex. F.
Individuals may bring Title VII claims in federal court only after filing a timely charge of employment discrimination with the EEOC and receiving a right-to-sue letter from the EEOC or an analogous state agency. 42 U.S.C. § 2000e-5(e); Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). The exhaustion of administrative remedies is an "essential element" of the Title VII statutory scheme and functions as a precondition to bringing such claims in federal court. Legnani, 274 F.3d at 686. The purpose of the exhaustion requirement is to provide notice to the employer and to encourage conciliation and voluntary compliance. See Butts v. New York City Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); Snell v. Suffolk County, 782 F.2d 1094, 1101 (2d Cir. 1986). As such, federal courts may only hear Title VII claims "that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts, 990 F.2d at 1401.
The requirement is more so a "waivable condition precedent" than a "jurisdictional prerequisite." Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000).
The first type of reasonable relatedness "is essentially an allowance of loose pleading. Recognizing that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering, we have allowed claims not raised in the charge to be brought in a civil action where the conduct complained of would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Butts, 990 F.2d at 1402, citing Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978); see also Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003). The second type of "reasonably related" claim is one in which the plaintiff alleges that her employer retaliated against her for filing an EEOC charge. Id. "[I]n such situations, we have relaxed the exhaustion requirement based on the close connection of the retaliatory act to both the initial discriminatory conduct and the filing of the charge itself."Id. "The third type of reasonably related claim is where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.
Of the three types of reasonable relatedness, only the first is relevant to Punsal's failure to allege nation of origin discrimination in the SDHR/EEOC complaint. The question, then, is whether plaintiff's claim of nation of origin discrimination would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of her SDHR/EEOC complaint.
In detail, plaintiff Punsal included the following in the administrative complaint: 1) Punsal is 58 years of age; 2) her job performance has been satisfactory since she was initially hired; 3) after Louis was hired, Louis (in her early 30's) and Levy (age 60) "began a pattern of harassment" against plaintiff by criticizing her work, scheduling practices, and distribution of overtime; 4) Dr. Levy twice falsely accused plaintiff of negligence on June 15, 1999; 5) plaintiff complained to Dr. Glezerov, Director of Pathology, who is in his early 60's, to no avail; and 6) plaintiff took a medical leave of absence because she could no longer stand the harassment stemming from Dr. Levy's desire to get her "out" due to age and preference for Louis, who is younger than plaintiff. By contrast, in the complaint filed before this court, plaintiff Punsal charges that defendants Levy and Louis treated her in a dissimilar fashion compared to non-Filipino employees and Levy previously fired other Filipino mangers. See Pl.'s Complaint at ¶ 32, ¶ 34.
Even under the "loose pleading" standard, plaintiff's claim that she was discriminated against on account of her Filipino descent has no relation to her claim of age discrimination in the SDHR/EEOC complaint.See Sotolongo v. New York City Transit Authority, 216 F.3d 1073 (2d Cir. 2000) (claims of age and national origin discrimination are not reasonably related to disability claim); Joseph v. America Works. Inc., 2002 WL 1033833 (S.D.N.Y. May 21, 2002) (disability discrimination claim is not reasonably related to charge of race discrimination in handling employee medical leave requests); Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 825-26 (S.D.N.Y. 1991) (religious discrimination and sex discrimination claims are not reasonably related but wholly distinct). Given the factual dissimilarity between the two allegations of discrimination, and recognizing that "the 'reasonable relatedness' test is not satisfied by the improbable possibility that the EEOC could have stumbled into a new universe of allegations that the plaintiff alleges for the first time in [her] complaint," Chinn v. City Univ. of New York School of Law at Queens College, 963 F. Supp. 218, 223 (E.D.N.Y. 1997), the SDHR/EEOC could not reasonably have been expected to investigate Punsal's allegations of nation of origin discrimination. See Hansen v. Danish Tourist Bd., 147 F. Supp.2d 142, 151-54 (E.D.N.Y. 2001). Similarly, the SDHR/EEOC complaint would not have put defendants on notice of the nation of origin claims she pursues in this court, Osier v. Broome County, 47 F. Supp.2d 311, 321 (N.D.N.Y. 1999) citing Cooper v. Xerox Corp., 994 F. Supp. 429, 432 (W.D.N.Y. 1998).
Even if, however, the nation of origin and age discrimination claims were reasonably related, "the 'reasonably related' doctrine does not excuse a failure to include in an administrative complaint allegations about discriminatory acts that had already occurred at the time the complaint is filed. Rather, the doctrine permits a court to consider claims 'based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge.'" Hall v. City of New York, 2002 WL 472057, at 4 (S.D.N.Y. Mar. 27, 2002) (emphasis in original) citing Butts, 990 F.2d at 1401. Because the purpose of the doctrine is to allow subsequent claims that are "sufficiently similar to those set forth in the original complaint," it "does not permit a plaintiff to bring suit based on alleged prior acts of discrimination that could have been, but were not, asserted in the EEOC charge that was filed" Id. citing Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2d Cir. 1993). Here, the allegedly discriminatory acts based on nation of origin already occurred at the time plaintiff filed her SDHR/EEOC complaint. Given that plaintiff could have included the nation of origin claim in plaintiff's SDHR/EEOC complaint, the "reasonably related" doctrine does not excuse her failure to charge defendants with nation of origin discrimination at the administrative stage.
Because plaintiff did not include nation of origin discrimination and related retaliation claims in her SDHR/EEOC complaint, defendants' motion for summary judgment on plaintiff's nation of origin discrimination and retaliation claims is GRANTED.
II. Plaintiff's Age Discrimination Claim
A. Plaintiff's failure to plead the correct federal statute in her complaint
As a threshold matter, plaintiff's complaint does not include an allegation of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. § 623(a)(1). Instead, plaintiff avers that defendant violated Title VII, 42 U.S.C.A. § 2000(e), New York State Executive Law §§ 296-97, and New York City Administrative Code § 8 by discriminating against her on the basis of age. Title VII, however, does not prohibit employers from discriminating on the basis of age, see 42 U.S.C.A. § 2000(e-2)(a)(1), rather, it is the ADEA which makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C.A. § 623(a)(1). Despite plaintiff's failure to plead a violation of the ADEA in her complaint, defendants' summary judgment motion analyzes plaintiff's age discrimination claim under the ADEA, see Def.'s Motion for Summary Judgment at 6, and plaintiff's reply memorandum follows suit.
Rule 8 of the Federal Rules of Civil Procedure governs the pleading requirements for complaints, requiring only that a complaint contain a short and plain statement of jurisdiction, of the claim showing the complainant is entitled to relief, and a demand for judgment. Fed.R.Civ.P. 8(a). "No technical forms of pleading or motions are required," Fed.R.Civ.P. 8(e), nor is there any obligation for a plaintiff to plead every legal theory under which she seeks to recover. Equally as important, the Rule directs courts to construe pleadings in a manner "so as to do substantial justice." Fed.R.Civ.P. 8(f).
The purpose behind the Rule is to provide the defendant fair notice by disclosing the facts plaintiff relies on for recovery, to promote disposition of the case on its merits, and discourage disputes over mere form of statement. See Walter Reade's Theatres, Inc. v. Loew's Inc., 20 F.R.D. 579 (S.D.N.Y. 1957); McKenzie v. Blidberg Rothchild Co., 12 F.R.D. 392 (S.D.N.Y. 1952); In re O.P.M. Leasing Services, Inc., 21 B.R. 986 (S.D.N.Y. 1982); In re Credit Indus. Corp., 366 F.2d 402 (2d Cir. 1966); Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir. 1957). Here, plaintiff's complaint alleges that defendants treated her unfairly on the basis of age, replaced her with someone younger, and stripped her of employment responsibilities and withheld information. because of her age. Because these allegations are sufficient to provide notice to defendants that plaintiff seeks relief under the ADEA, plaintiff's complaint satisfies Rule 8 with respect to her ADEA claim. Further, plaintiff included an age discrimination claim in her SDHR/EEOC complaint, thereby warranting this court's consideration of the matter on summary judgment.Legnani, 274 F.3d at 686.
B. Analysis
The ADEA is derived from Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Hogan v. Metromail, 107 F. Supp.2d 459, 464 (S.D.N.Y. 2000). Title VII renders it unlawful for an employer to: "(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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). The Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., extends the same protection to persons over the age of forty. 29 U.S.C. § 623(a)(1), 631(a). Smith v. AVSC Intern., Inc., 148 F. Supp.2d 302, 307 (S.D.N.Y. 2001).
To prevail on an ADEA claim, a plaintiff must prove by a preponderance of the evidence that her age played a motivating role in or contributed to the defendant employer's adverse decision or treatment. Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 76 (2d Cir. 2001)citing Renz v. Grey Advert., Inc., 135 F.3d 217, 222 (2d Cir. 1997). See also Welland v. Citigroup, Inc., 2003 WL 22973574, at 5 (S.D.N.Y. Dec. 17, 2003) (the critical issue is one of proof of discriminatory intent on the part of the defendant). Given that most age discrimination plaintiff's cannot offer "smoking gun" evidence establishing discriminatory intent, relying instead on circumstantial evidence, courts analyze ADEA claims under the three-part burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973); Holtz, 258 F.3d at 76. Pursuant to this analysis, plaintiff must first establish a prima facie case of age discrimination. If she does so, the employer must offer a legitimate, nondiscriminatory business rationale for its actions. Once the employer articulates such a reason, the plaintiff has the burden of proving that her age was the real reason for the adverse action.Ferrell v. Leake Watts Services, Inc., 2003 WL 22743076, at 2 (2nd Cir. Nov. 20, 2003).
In order to establish a prima facie case, a plaintiff must demonstrate the following: 1) she was within the protected age group; 2) she was qualified for the position; 3) she was subject to an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Id. citing Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal quotation marks omitted). The burden on the plaintiff at this stage is "minimal." Rose v. NYP Holdings. Inc., 257 F.3d 164, 168 (2d Cir. 2001).
Here, the defendants do not contest, and the court assumes, that plaintiff has shown the first two prongs of a prima facie case. As to the third prong, plaintiff's reply brief appears to offer several grounds for finding an adverse employment action. First, plaintiff charges that defendants constructively discharged her. Pl.'s Reply Brief at 9. Although constructive discharge constitutes adverse employment action,Stetson v. NYNEX Service Co., 995 F.2d 360 (2d Cir. 1993), "[c]onstructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." Chertkova v. Connecticut Gen. Life Ins., 92 F.3d at 87. Here, defendants terminated plaintiff's employment via letter on May 3, 2000. See Pl.'s Complaint at ¶ 40. Because plaintiff did not quit involuntarily, she cannot locate an adverse employment action in a constructive discharge.
Second, plaintiff seeks to establish adverse action by alleging that Levy transferred plaintiff's employment responsibilities to Louis, Pl.'s Reply Brief at 9, but the only responsibility of this nature that plaintiff has pointed to is scheduling. An adverse employment action is a "materially adverse change" in the terms and conditions of employment that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabva v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted). See also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (a "minor, ministerial stumbling block" does not constitute an adverse employment action unless it has a "sufficiently deleterious" effect). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (citation omitted). Although the court is mindful that plaintiff's burden at this stage is de minimis, the loss of scheduling powers does not constitute "significantly diminished material responsibilities" and is not, therefore, an adverse employment action.
Third, plaintiff avers that defendants removed books and policy manuals from her office while she was out on a two-day leave in June, 1999. Even if the court assumes, as it must, that these items were actually taken from her office, although inconvenient and possibly disruptive, such action presents a minor, ministerial stumbling block without a sufficiently deleterious effect. Wanamaker, 108 F.3d at 466. When the court further considers that the policy books and manuals actually belonged to the Pathology Department, Punsal Dep. at 86, it is especially confident that the act in question is not an "adverse employment action."
Lastly, plaintiff alleges that two memoranda authored by Levy on June 15, 1999 constitute an "adverse employment action. The first memoranda charges plaintiff with failing to a) tell Levy that a newly hired technologist did not report to work, and b) discontinue the practice of lunch overtime. Def.'s Ex. H. The second memorandum charges plaintiff with delaying testing of a specimen for four days. Id. The memoranda are addressed to plaintiff Punsal, with the Director of Pathology, Director of Human Resources, and Laboratory Manager carbon-copied on the correspondence. Id. Adverse employment actions are "injurious to current employment or the ability to secure future employment," Wanamaker, 108 F.3d at 466, including negative evaluation letters, see Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Construing the facts in plaintiff's favor, the June 15th letters likely became part of plaintiff's employment file. Because they could detrimentally her prospects for future employment, the letters constitute "adverse employment action." As to these letters, plaintiff makes out the third element of the prima facie case.
To satisfy the fourth prong of the prima facie case, plaintiff must demonstrate that the adverse action occurred under circumstances giving rise to an inference of discrimination. Plaintiff alleges that unlike plaintiff, "defendant Levy actually delayed testing and was not disciplined." Punsal Decl. at ¶ 12. Although Louis was 43 years of age at the time and thus in the protected class covered by the ADEA,see 29 U.S.C. § 631 (a) (ADEA's protective class includes individuals over 40 years of age), the fact that she was younger than plaintiff is sufficient. See Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir. 2000) (inference of discrimination shown because plaintiff was over 60 years of age and his replacement was 59 years of age). Thus, assuming plaintiff's allegation that Levy also delayed testing is true, plaintiff has raised an inference of discrimination.
Having made out a prima facie case, the burden shifts to defendants to offer a legitimate, nondiscriminatory business rationale for adverse employment action. See McDonnell Douglas Corp., 411 U.S. 792. Defendants do not have to prove their nondiscriminatory reasons for the employment action, but merely to provide, articulate, or present a nondiscriminatory basis. Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003). This burden is "merely one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097 (2000). Defendants state that it was laboratory policy to test every specimen upon the day of receipt because a lab's failure on a proficiency test has egregious circumstances, including the possible loss of accreditation. Def.'s Motion for Summary Judgment at 12-13. While federal regulations require testing anywhere between five and ten days of receipt of a specimen, according to the lab's internal policy, technicians were required to test each specimen the same day as receipt. Levy Dep. at 35-39. Although plaintiff's act may not have violated federal laws governing the time frame for testing or caused the hospital to receive any kind of warning, plaintiff's delay constituted a violation of laboratory policy. Id. With respect to plaintiff's failure to tell Levy that an employee did not report for work, defendants point out that failure to inform Levy about important personnel issues jeopardizes laboratory operation. Pl.'s Ex. E. Regarding her failure to discontinue overtime practices, defendants explain that Levy had told plaintiff to discontinue the practice four days before, so plaintiff's continued abuse of overtime violated Levy's directive. For all three violations Levy charges plaintiff with in the June 15, 1999 memoranda, defendants have articulated nondiscriminatory bases for their actions.
At this point, the presumption of discrimination raised by the prima facie case drops out, and defendants will be entitled to summary judgment unless the plaintiff can demonstrate, by a preponderance of the evidence, that the defendants' presumptively valid explanation was merely a pretext for discrimination. Pasha v. William M. Mercer Consulting, Inc., 2004 WL 188077, at 9 (S.D.N.Y. Feb. 2, 2004) citing Griffin v. Ambika Corp., 103 F. Supp.2d 297, 307 (S.D.N.Y. 2000);Mario v. PC Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002). "[T]o 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."Terry, 336 F.3d at 138 citing Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997). To meet this burden, "the plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the 'motivating' factors."Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995):see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097;Bickerstaff v. Vassar College, 196 F.3d 435, 447 (2d Cir. 1999), cert. denied, 79 530 U.S. 1242, 120 S.Ct. 2688 (2000);Fields v. New York State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997). In some cases, a plaintiff's prima facie case combined with sufficient evidence to find the employer's reason is false may be sufficient.See Cronin, 46 F.3d at 203; Reeves, 530 U.S. at 148, 120 S.Ct. at 2109. In other cases, however, such proof may not be enough to survive summary judgment. See McGuinness v. Lincoln Hall, 263 F.3d 49, 55 (2d Cir. 2001) citing James v. New York Racing Ass'n., 233 F.3d 149, 156 (2d Cir. 2000). The court's responsibility is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove . . ."Cordoba v. Beau Dietl Associates, 2003 WL 22902266, at 7 (S.D.N.Y. Dec. 8, 2003), citing James, 233 F.3d at 157.
Plaintiff's age discrimination claim rests primarily upon her allegation claim that Louis told plaintiff that Levy likes Louis because she is "young and energetic." Punsal Dep. at 65 (Louis "bragging around" that Levy likes her because she is "young and energetic); Id. at 67 (discrimination plaintiff senses from Levy based on the fact that Louis "bragging around" that she can't do anything wrong in Levy's eyes because she is "young and energetic"); Id. at 69 (when asked what Levy did to make Punsal think Levy was discriminating against her, Punsal states that Levy favored Louis and Louis was "bragging around");Id. at 81 (plaintiff told Veronica Henry, the laboratory manager, about "the age discrimination that Ms. Louis is spreading around which I think was from Dr. Levy herself because she would not have any reason of saying that"); Id. at 140 (Levy doesn't want to talk to her and Louis just keeps telling Plaintiff that Louis likes her because she is "young and energetic"). On the one hand, Punsal stated that her Louis, her co-worker, is the only one who made a comment to her about age, id. at 140-41 (the "young and energetic" comment is the only one she can think of regarding her age made by the defendants), but on the other hand, Punsal also testified that Levy once said that all of the supervisors at the lab were getting old, id. at 131.
Unlike other cases in which courts in the Second Circuit have held that uncorroborated statements were sufficient to defeat summary judgment, here, the uncorroborated remarks do not present a situation in which plaintiff's supervisor made repeated statements clearly indicative of age-based preferences or discriminatory motive. See Holtz, 258 F.3d 62, 77-78 (2d Cir. 2001) (although evidence of discriminatory intent consisted of uncorroborated statements, defendant employer's motion for summary judgment denied where supervisor i) went on at length that he was training the new employee because she was young and hence, a good investment; ii) on a separate occasion he stated that he enjoyed training young women; iii) when plaintiff asked when her supervisor would train her, he responded that he liked to train young women instead); Instead, "these remarks are too isolated and ambiguous to support a finding of age discrimination." Pasha v. William M. Mercer Consulting, WL 188077, at 5 (S.D.N.Y. Feb. 2, 2004) (no finding of age discrimination where supervisors talked about recruiting young people from the actuarial side of the business to become consultants and one supervisor said that he and plaintiff should be thinking of retirement at their age)citing Douglas v. Dist. Council 37 Municipal Employees' Educ. Fund Trust, 207 F. Supp.2d 282, 291 (S.D.N.Y. 2002). See also Molin v. Shapiro, 2003 WL 22056217, at 1 (2d Cir. Sept. 4, 2003) (supervisor's remark that employers who were younger than plaintiff were the future of the company was subject to various interpretations, none of which were sufficiently indicative of a discriminatory intent). Like other cases in which courts in the Second Circuit have found that summary judgment in favor of the employer was proper, the statements plaintiff relies upon are "no more than . . . passing flippanc[ies]" and "too immaterial to withstand a properly-supported motion for summary judgment"). Id. at 6, citing Bern v. United Mercanfile Agencies, 942 F. Supp. 217, 220 (S.D.N.Y. 1996). See also Hatter v. Fulton, 1997 WL 411623, at 5 (S.D.N.Y. Jul. 21, 1997) (employer entitled to summary judgment because supervisor's comment that company "needs young people" was merely a "stray utterance that is insufficient to give rise to an inference of discrimination"); Buompane v. Citibank. N.A., 2002 WL 603036, at 12-13 (S.D.N.Y. Apr.18, 2002) (employer entitled to summary judgment despite decision maker's comments that she wanted an "energetic young buck," and sought a "young, energetic, fresh approach").
Additionally, plaintiff attempts to show that her age was the real reason for the adverse action by claiming that Levy preferred Louis, Levy and Louis made changes without telling her, Levy asked Louis to tell the other technologists what to do even though plaintiff was the more senior supervisor, Levy and Louis took Department books and manuals from her office while she was on leave, and Levy gave plaintiff's work to Louis.See Punsal Dep. at 84-86, 143. However disagreeable, these alleged wrongdoings are insufficient to satisfy plaintiff's burden because plaintiff has not provided any evidence linking these acts to discriminatory animus based on age. See Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (plaintiffs in a race discrimination case presented insufficient evidence to withstand summary judgment where they did "little more than cite to their mistreatment and ask the court to conclude that it must have been related to [race discrimination]"); Sklar v. New York Life Ins. Co., 2002 WL 562300 (2d Cir. Apr. 16, 2002) (applying Lizardo to age discrimination claim). While plaintiff alleges that other employees filed discrimination complaints as proof that defendants discriminated against her, Punsal Decl. at ¶ 20, not only has plaintiff failed to provide any evidence to this effect or even specify the nature of the discrimination charges, there is insufficient evidence in the record pertaining to discriminatory treatment directed towards plaintiff to warrant finding that other claims of discrimination rebut defendants' neutral reasons for the adverse employment action. See Bailey v. Synthes, 295 F. Supp.2d 344, 356-57 (S.D.N.Y. 2003) ("In the absence of specific, admissible, evidence of facts bearing in plaintiff's experience with [plaintiff's employer], other employees' allegations that their adverse employment experiences were the product of discrimination are insufficient to rebut Defendants' proffered reasons for [the adverse employment action]") citing Scaramuzzo v. Glenmore Distilleries Co., 501 F. Supp. 727, 733 (N.D.Ill. 1980) (although evidence of discriminatory acts by employer towards other employees is relevant under some circumstances, "[t]he fact that persons other than the plaintiff filed age discrimination charges against [the defendant employer] . . . is of minimum probative value").
As a matter of law, there is insufficient evidence before the court from which a reasonable jury could conclude that more probably than not, plaintiff Punsal was the victim of age discrimination. See James, 233 F.3d at 154. As such, defendants' motion for summary judgment on plaintiff's ADEA claim is GRANTED. Because age discrimination claims brought under the state and municipal law are subject to the same analysis as claims brought under the ADEA,Abdu-Brisson, 239 F.3d at 466, summary judgment is also GRANTED to defendants on plaintiff's claims under N.Y. Exec. Laws §§ 296-298 and N.Y. City Admin. Code § 8.
III. plaintiff's Retaliation Claim
Plaintiff's complaint does not specifically allege a claim of retaliation or request relief on this basis. The factual portion of her complaint states that "Defendants discriminated against Plaintiff on the basis of her age . . . and retaliated against plaintiff for making the charge of discrimination dated July 16, 1999," Pl.'s Complaint, at ¶ 41. Defendants were on notice of her retaliation claim because they address retaliation in their motion for summary judgment. Thus, the retaliation claim set forth in plaintiff's complaint satisfies Fed.R.Civ.P. 8. Further, while plaintiff did not charge defendants with retaliation in her SDHR/EEOC complaint, plaintiff's retaliation claim is reasonably related to the age discrimination she alleged in the administrative complaint. See Butts 990 F.2d at 1402 (retaliation claims are reasonably related to EEOC complaints charging discrimination). For these reasons, plaintiff's retaliation claim is properly before the court on summary judgment.
The same standards and burdens apply to retaliation claims in violation of the ADEA as apply to retaliation in violation of Title VII. See Terry, 336 F.3d at 141, citing Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Title VII forbids an employer from discriminating against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). A violation occurs when "a retaliatory motive plays a part in adverse employment actions toward an employee, whether or not it was the sole cause." Id., citing Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
The McDonnell Douglas burden shifting analysis applies to claims of retaliation in violation of the ADEA. Id. First, plaintiff must make out a prima facie case of retaliation by showing (1) the plaintiff was engaged in an activity protected under the ADEA; (2) the plaintiff was subject to an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. Id., citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). The filing of an administrative complaint with the SDHR and EEOC is clearly protected activity and plaintiff's termination constitutes an adverse employment action. Thus, plaintiff satisfies the first two prongs of the prima facie case of retaliation. As to the third prong, however, there is no evidence in the record from which the court can infer that plaintiff's administrative complaint played any role whatsoever in her termination.
Even if plaintiff could satisfy the third prong of the prima facie case, defendants have offered a nondiscriminatory reason for terminating plaintiff. Defendants sent plaintiff a letter nearly eleven months after the last day plaintiff worked in the lab, stating that they could no longer hold her position open but encouraging her to contact Human Resources in the event her medical condition changed and she could return to work. See Def.'s Ex. E. According to defendants, "it is Mt. Sinai's general policy that when an employee takes a leave of absence, Mt. Sinai will only hold the employee's position for six months." Innes Decl. at ¶ 18 (emphasis added). Further, defendants held plaintiff's position open until October of 2000, when it learned that its insurance carrier had reaffirmed its decision to deny plaintiff long-term disability benefits. Id. at ¶ 17. In light of defendants' general policy to terminate a similarly situated employee after six months, coupled with the fact that defendants waited to fill plaintiff's position until after plaintiff had been denied long-term disability benefits and she still did not return to work, defendants have satisfied their burden.
Plaintiff fails to refute defendants' nondiscriminatory rationale by offering evidence from which a reasonable factfinder could conclude that retaliatory animus played a role in plaintiff's termination. Plaintiff does not offer any additional evidence to substantiate her claim of retaliation other than the allegations she relied on to substantiate her claim of age discrimination. These allegations, even if taken as true, are equally inadequate to warrant a finding of retaliatory motive. In addition, defendants aver that the termination letter and the attendant decision to terminate rested exclusively in the hands of Human Resources, and although she had the power to do so, Levy did not recommend plaintiff's termination. See Innes Decl. at ¶ 21-22. While plaintiff identifies Levy as the primary source of the discrimination she suffered, she has offered no evidence to show that Levy played a role in her discharge as a means of retaliating against her. See Bickerstaff, 196 F.3d 435 (the impermissible bias of a single individual at any stage of the decision-making process may taint the ultimate decision as long as the individual is shown to have played a meaningful role in that decision). Defendants have not offered inconsistent and varying explanations for its decision to terminate plaintiff. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001) (a jury issue on the question of pretext may be created when an employer offers inconsistent and varying explanations for terminating an employee). Further, the employee hired to replace plaintiff was 51 years of age at the time of hire, and plaintiff was 58 years of age at the time defendants terminated her employment. "In the age-discrimination context, [an inference of discrimination] cannot be drawn from the replacement of one worker with another insignificantly younger." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307 (1996). Finally, because ten months passed between the time when plaintiff filed the SDHR/EEOC complaint and plaintiff's termination, this is not a case in which temporal proximity demonstrates a causal nexus between the charge of discrimination and a plaintiff's subsequent termination. Manoharan v. Columbia Univ., 842 F.2d 590, 593 (2d Cir. 1988). See Quinn, 159 F.3d at 769 (plaintiff showed a causal connection between the protected activity and her termination when her discharge came ten days after she filed an administrative complaint and two months after she filed an internal complaint); Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (retaliation inferred by evidence showing the time between plaintiff's initial complaint and her discharge was a mere twelve days). Even if plaintiff could make a showing of temporal proximity, in the absence of other evidence showing a causal relationship between the SDHR/EEOC complaint and her termination, such a showing could not satisfy her burden. Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (no causal connection where only evidence was three month lapse between complaint and allegedly retaliatory act).
Plaintiff cannot establish a prima facie of retaliation. Even if she could, plaintiff fails to offer evidence from which a reasonable jury could conclude that retaliatory animus played a role in plaintiff's termination. Defendants' motion for summary judgment on plaintiff's retaliation claim is GRANTED.
CONCLUSION
Defendants' motion for summary judgment is GRANTED on plaintiff's Title VII nation of origin discrimination claim, age discrimination claims arising under the ADEA, New York Exec. Law §§ 296-97, and N.Y. City Admin. Code § 8, retaliation claim.