Opinion
01 Civ. 4196 (DFE)
April 9, 2004
OPINION AND ORDER
Plaintiff Orlando Walters brought this action against his former employer (the Bronx-Lebanon Hospital Center, referred to as "Bronx-Lebanon" or "the Hospital") and two executives at Bronx-Lebanon, namely Sheldon Ortsman and Robert Underwood. Plaintiff also brought this action against Ray Cottrell and Scott Lemperle, who were employed by a company called Aramark but worked as consultants and supervised plaintiff. In January 2002, Cottrell and Lemperle reached a settlement with plaintiff and are no longer parties to this lawsuit.
On November 26, 2003, the remaining defendants served (1) a Notice of Motion for Summary Judgment with an annexed Defendants' Local Rule 56.1 Statement ("Def. 56.1 Stat."), (2) a Memorandum of Law ("Def. Mem."), and (3) two volumes of Exhibits AA through TT ("Def. Exh. ___").
On January 6, 2004, plaintiff served a Memorandum of Law ("Pl. Mem.") and a thick volume which contains (a) Plaintiff's Responses to Defendants' Rule 56.1 Statement ("Pl. 56.1 Resp."), (b) the 1/5/04 affidavit of Orlando Walters ("Walters Aff."), (c) the the 1/5/04 affirmation of his attorney Etta Ibok ("Ibok Aff."), (d) Plaintiff's Stipulations and Objections to Defense Exhibits, (e) the 12/17/03 affidavit of James (Rick) Bay, and (f) Exhibits 1 through 25 ("Pl. Exh. ___").
The Walters affidavit ends as follows:
138. I am withdrawing my claims for race discrimination and defamation and [I am] going forward on my retaliation claims only.
Accordingly, I hereby dismiss, with prejudice, plaintiff's non-retaliation claims.
On January 26, 2004, defendants served a Reply Memorandum of Law ("Def. Reply") and annexed to it declarations of four witnesses.
Plaintiff has requested oral argument on the defendants' motion. I find that oral argument is unnecessary. For the reasons set forth below, I deny defendants' motion for summary judgment as to the retaliation claims.
FACTUAL AND PROCEDURAL BACKGROUND
At Bronx-Lebanon, Sheldon Ortsman was the Vice President of Administration and Human Resources (Def. Exh. M. pp. 17-18); Robert Underwood was the Assistant Vice President of Facilities Management (Def. 56.1 Stat. ¶ 4). On August 1, 1994, Underwood hired plaintiff to work as a Budget Assistant in the Facilities Management Department. (Def. 56.1 Stat. ¶¶ 1, 4; Pl. 56.1 Resp. ¶¶ 1, 4.) In February 1996, Underwood promoted plaintiff to the position of Budget Analyst. (Def. 56.1 Stat. ¶ 5; Pl. 56.1 Resp. ¶ 5.) According to plaintiff, Underwood's benign attitude toward him changed dramatically after July 21, 1998, when plaintiff corroborated complaints that Underwood discriminated against minority employees.
On July 21, 1998, plaintiff met with Lourdes Martinez, an attorney with a law firm retained by the Hospital. Plaintiff says that Ms. Martinez showed him an anonymous letter (Pl. Exh. 2) addressed to Miguel A. Fuentes, the President of the Hospital. Plaintiff says:
. . . [Ms. Martinez] explained to me that she was asked by the hospital board of trustees as an independent investigator, as an attorney, to investigate these allegations that were made in this letter[.] I told her I did not want to cooperate because I was fearful of reprisals, not only towards myself, but at the time my girlfriend and my mother who w[ere] employed at the hospital at that time. She told me that both Sheldon Ortsman and Robert Underwood were warned that if there were any reprisals to anyone who cooperated with this investigation, that the[re] would be stiff penalties and major reprimands.
To them; she was telling me that by speaking with her, I would be protected.
(Def. Exh. A, pp. 85-87.)
The anonymous letter, dated June 30, 1998, contained serious allegations against Underwood, including allegations that Underwood used "recent racial slurs" toward minority employees in his department. (Pl. Exh. 2.) Plaintiff, after the lawyer gave him assurances against retaliation, corroborated the letter's allegations, including Underwood's use of racial slurs. (Def. Exh. A, pp. 88-89.) In addition, plaintiff and Ms. Martinez discussed Ortsman and his "involvement with vendors" and his "awarding of contracts." (Id., p. 98.)
Defendants do not deny plaintiff's version of the July 1998 meeting. Instead, Ms. Martinez "beats around the bush" and says:
2. I have reviewed the affidavit of the Plaintiff in opposition to the Hospital's motion for summary judgment.
3. Contrary to the Plaintiff's assertion, in or about July 1998, my firm [Garfunkel, Wild Travis, P.C.] was not retained as labor counsel by the Hospital for purposes of conducting a Title VII Civil Rights Act investigation.
4. In or about July 1998, the Hospital asked my firm to conduct compliance activities unrelated to Title VII issues.
(Def. Reply Exh. A.) The scope of her law firm's retainer is of minimal relevance. She does not contradict plaintiff's allegations that (a) she showed him the letter mentioning Underwood's "recent racial slurs," (b) she gave him assurances against retaliation, and (c) he corroborated that Underwood had discriminated against employees on the basis of race. Nor does she deny that her law firm informed one or more Hospital executives, directly or indirectly, that plaintiff had corroborated allegations implicating Underwood in racial discrimination and implicating Ortsman in improper awarding of contracts.
On August 7, 1998, Yvette Rodriguez, the office supervisor for the Facilities Management Department, sent Underwood a written complaint about plaintiff:
. . . [A]round 12:15 p.m., when Mr. Walters arrived I asked him to cover the office since there was no one else available and [I] had to go to the bank.
When I returned at approximately 1:10 p.m., I went to the bathroom to wash my hands. While I was in the bathroom, my attention was drawn to some pieces of paper (obviously not toilet paper) floating in the toilet. I fished out the pieces of paper from the bowl, . . . I then noticed that one piece of paper had Mr. Carlos Javier's name on it. The day before Mr. Underwood asked me for a copy of a check request for Carlos Javier, and I could not locate it. . . .
At approximately 2:15 p.m., Mr. Underwood arrived from his meeting. I went to his office and I showed him the pieces of paper and I stated that the only one in the office at the time of me leaving to go to the bank was Mr. Orlando Walters.
(Def. Exh. K.) Plaintiff denies that he attempted to flush away the check requisition.
That same day, Underwood reprimanded plaintiff for attempting to flush away the check requisition. (Def. 56.1 Stat. ¶ 10; Def. Exh. H, pp. 198-216.) Plaintiff claims that Underwood said that, if he did not have plaintiff's loyalty, "then I must leave or he would get rid of me." (Walters 1/5/04 Aff. ¶ 31.) According to plaintiff, Underwood then conveyed a worry that plaintiff had been cooperating in an investigation aimed at Underwood:
d. Defendant Underwood also told me that if I spoke to anyone asking questions about him, he would "make life very difficult" for me.
( Ibid, emphasis added.)
Plaintiff was upset about the retaliatory nature of this Friday afternoon meeting. On Monday morning, August 10, 1998, plaintiff went to Ms. Martinez's law office and conveyed his anxiety to her and another lawyer at her firm, David Steckler. Mr. Steckler told plaintiff that the President of the Hospital, Miguel Fuentes, was already aware that plaintiff had come to their law office that morning. (Walters 1/5/04 Aff. 1 35.) A bit later on August 10, as soon as plaintiff arrived for work, Ortsman summoned him to a meeting. Ortsman told him that President Fuentes had asked Ortsman to speak to plaintiff about the statements plaintiff had made to Ms. Martinez and Mr. Steckler. The crucial allegation is that Ortsman required plaintiff to reveal what he told the investigators about Underwood. Plaintiff did so, and also informed Ortsman that Underwood had threatened him. (Walters 1/5/04 Aff. ¶¶ 34-38.)
On September 3, 1998, Underwood met with plaintiff and Yvette Rodriguez and Elaine Bryant to discuss "staff resource allocation relative to the Fulton Division." (Def. Exh. O.) Underwood stated that, effective September 9, plaintiff would relocate to the Fulton Division to provide management coverage for that Division. Underwood gave three reasons: (1) Juan Harley, the Fulton Division's Assistant Director, who had been on sick leave, had relocated to the Concourse Division, (2) Peter Mendonez, a building manager at the Fulton Division, had resigned, and (3) George Rodriguez, the Associate Director of the Concourse Division Engineering office, could not fill in because he was on vacation. (Def. 56.1 Stat. 112; Def. Exh. A, pp. 158-66 and Exh. 0; Walters 1/5/04 Aff. ¶¶ 20-22.) Plaintiff became the sole person "doing the building managerial position." (Def. Exh. A, p. 178.) Plaintiff's title and salary remained the same. (Def. 56.1 Stat. 12; Pl. 56.1 Stat. Resp. ¶ 12(n).) He "took on the responsibilities of a building manager, director of engineering." On the negative side, he was no longer permitted to (a) attend the weekly Facilities Management Managerial meetings or (b) participate in the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO") survey. (Def. Exh. A, pp. 159-60; Pl. 56.1 Stat. Resp. ¶ 12.)
On September 8, 1998, plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging retaliation stemming from the July 21, 1998 meeting with Ms. Martinez, the August 7, 1998 meeting with Underwood, and the transfer to the Fulton Division. (Def. Exh. 00; Pl. 56.1 Stat. Resp. ¶ 11.)
Defendants allege that, in the fall of 1998, plaintiff exhibited three performance problems: (1) his "failure to set-up and coordinate his new office at the Fulton Division;" (2) complaints from architects Peter Rodrigues and Vilas Parab of the Facilities Management Department, that he was "failing to carry out his job functions," and (3) his "excessive absences, i.e. plaintiff was asked to submit documentation for three sick days taken in late September, 1998." (Def. 56.1 Stat. 113; Def. Exh. P; Def. Exh. Q; Def. Exh. H, pp. 217-224, 241, 248-253; Def. Exhibit A, pp. 167-70, 179). Plaintiff denies the defendants' allegations. He also claims that Underwood failed to bring these alleged performance problems to his attention, and thus violated Bronx-Lebanon's policy on performance evaluation. (Pl. 56.1 Stat. Resp. ¶ 13.)
From January 13 to April 26, 1999, plaintiff was granted an extended medical leave due to depression and anxiety. (Def. 56.1 Stat. ¶ 14; Pl. 56.1 Stat. Resp. ¶ 14 and its Exh. 6.)
In March 1999, Bronx-Lebanon contracted out the supervisory duties of some of its departments to an outside private entity, Aramark Healthcare Support Services, Inc. ("Aramark"). (Def. 56.1 Stat. ¶ 15.)
After April 26, 1999, when plaintiff returned from sick leave, Underwood was no longer his direct supervisor. Reporting to Underwood was Aramark's Ray Cottrell; reporting to Cottrell were two other Aramark employees who now served as plaintiff's supervisor — first Regis Legoff and then (starting in October 1999) Scott Lemperle. (Def. 56.1 Stat. ¶ 18; Pl. 56.1 Stat. Resp. ¶ 18; Pl. Exh. 23, p. 130.) Plaintiff was the only member of the administrative staff of the Facilities Management Department who was required to report to an Aramark employee. Cottrell and Lemperle were put in the Concourse Building, and plaintiff was directed to relocate to the Concourse Building. (Pl. 56.1 Stat. Resp. ¶¶ 15 and 16.)
From May 1999 through August 1999, plaintiff had various complaints about his new office, including complaints that his office was not physically comfortable, well-ventilated, naturally lit, or big enough to accommodate plaintiff's tall frame. (Def. 56.1 Stat. ¶ 17; Pl. 56.1 Stat. Resp. ¶ 16(J) and (K), and ¶ 17; Walters 1/5/04 Aff. ¶¶ 80-89; Def. Exhs. R at ¶¶ 7-8 and U.) The defendants addressed and attempted to resolve all of plaintiff's complaints within a six-month period, including the hiring of an outside consultant to test the air quality in his office, and moving other managers around so that he could have a bigger office. (Def. 56.1 Stat. ¶ 17; Pl. 56.1 Stat. Resp. ¶ 17; Walters 1/5/04 Aff. ¶¶ 83, 85; Def. Exhs. R at ¶¶ 7-8 and U.) During this time frame, his old office in the adjacent Milstein Building remained vacant. (Pl. 56.1 Stat. Resp. ¶ 17.)
On August 6, 1999, the EEOC issued a Right to Sue letter with respect to plaintiff's September 10, 1998 complaint. The EEOC said it was "unable to conclude that the information obtained establishes violations of the statutes." The EEOC further said that plaintiff could pursue his federal claim in either a state or a federal court within 90 days of receipt of the letter. (Def. Exh. 00.) He failed to do so. On the other hand, he promptly made the same complaint to the New York State Division of Human Rights ("SDHR").
On September 3, 1999, plaintiff went to the SDHR and filed a claim against the Hospital. He alleged that he was disabled by depression and anxiety, and he accused the defendants of discrimination and retaliation. He alleged that Underwood transferred him and demoted him to retaliate against plaintiff's participation in the 1998 investigation as a witness. (Def. Exh. PP.)
James (Rick) Bay is now an important witness for plaintiff. Bay was an Aramark employee who worked at the Hospital from the summer of 1999 to February 2000. Shortly after Bay started working for Aramark, he and Lemperle and Cottrell met with Underwood; Bay says:
9. During the discussion that ensued, I recall distinctly that Robert Underwood kept emphasizing that he wanted Ray Cottrell and Scott Lemperle to go after Orlando Walters and to fire him.
10. I also recall distinctly that Robert Underwood told Ray Cottrell and Scott Lemperle that Orlando had caused him a lot of problems and had some kind of a pending action against him; therefore, he (Underwood) could not personally "touch" Orlando Walters.
(Bay 12/17/03 Aff.)
On October 27, 1999, according to Lemperle, he met with plaintiff to "establish [plaintiff's] break schedule and appropriate professional attire." (Def. 56.1 Stat. ¶ 19; Pl. 56.1 Stat. Resp. ¶ 19; Def. Exh. W.)
On October 28, 1999, plaintiff told Ortsman about the October 27 conversation with Lemperle "because I felt that defendant Underwood was subjecting me to a different standard than other employees." He told Ortsman that he "believed that defendant Underwood was continuing to harass [him] and to engage in retaliatory conduct" by (1) requiring him to designate a specific time for lunch, (2) barring him from utilizing the amenities in front of the Milstein Building, and (3) requiring him to wear a tie while sitting at his desk. (Walters 1/5/04 Aff. ¶¶ 96.)
On October 29, Lemperle and plaintiff met again because Ortsman had asked Lemperle to clarify the statements he had made during the October 27 meeting. (Pl. 56.1 Stat. Resp. ¶ 96.) Defendants allege that plaintiff yelled at Lemperle, used profanity, and called Lemperle a liar. (Def. 56.1 Stat. ¶ 19; Def. Exh. W.) On November 3, 1999, plaintiff was suspended for five days for this behavior, and he was advised that further insubordination would result in his termination. ( Ibid.) Plaintiff denies using profanities or calling Lemperle a liar. (Walters 1/5/04 Aff. ¶¶ 93-96.)
On December 1, 1999, plaintiff grieved his suspension. After an investigation, the suspension was upheld. (Def. 56.1 Stat. ¶¶ 20-21; Pl. 56.1 Stat. Resp. ¶¶ 20-21 and its Exh. 10; Def. Exhs. X and Y; Walters 1/5/04 Aff. ¶¶ 97-98.) On that date, plaintiff also filed an internal EEO complaint, alleging that Ortsman, Underwood, Lemperle and Cottrell discriminated against him because of his race, color and handicap. However, this complaint gave specifics only about Underwood and Lemperle. (Def. Exh. QQ.)
On January 10, 2000, Lemperle reviewed the 1999 fourth quarter attendance records for the three hospital managers who reported to him. He found two discrepancies in plaintiff's records. The records showed that plaintiff had called in sick on November 19 and 22, 1999, but had listed himself as present on his attendance sheets. (Def. 56.1 Stat. ¶ 23; Pl. 56.1 Stat. Resp. ¶ 23; Def. Exh. S, ¶¶ 11-17.) Lemperle did not find any discrepancies in the time records of the other managers in plaintiff's Department. Ray Cottrell confirmed Lemperle's findings. (Def. 56.1 Stat. ¶ 24; Pl. 56.1 Stat. Resp. ¶ 24.) On January 10 and 11, 2000, Cottrell and Lemperle met with plaintiff. Plaintiff admitted that he signed the two attendance sheets at issue, but stated that he could not remember whether he was at work on the two days at issue. (Pl. 56.1 Stat. Resp. ¶ 25.) Lemperle advised plaintiff that he would investigate the matter. (Def. 56.1 Stat. ¶ 27; Pl. 56.1 Stat. Resp. ¶ 27; Def. Exh. S, ¶¶ 18-22.)
On January 12, 2000, Lemperle recommended that plaintiff be terminated on the grounds that he falsified his attendance records and stole time from the Hospital. The Hospital's Director of Human Resources accepted Lemperle's recommendation and terminated plaintiff on January 12, 2000. (Def. 56.1 Stat. ¶ 27; Pl. 56.1 Stat. Resp. ¶ 27; Def. Exh. S, ¶¶ 22-23.)
On January 13, 2000, plaintiff filed a grievance regarding his termination. (Def. Exh. EE.) Defendants argue that plaintiff gave conflicting accounts as to his whereabouts on November 19 and 22, 1999. (Def. 56.1 Stat. ¶ 28.) During the Step II grievance hearing, plaintiff testified that on November 18 he prematurely submitted his time sheet for November 19, but later left a message for Lemperle that he would be out sick. He says that Lemperle should have simply told the timekeeper to change the time sheet. (Pl. 56.1 Stat. Resp. ¶ 28; Def. Exhs. FF.) Plaintiff testified that he did work on November 22, but had come in late, and that he recalled saying hello to Lemperle on that day. (Pl. 56.1 Stat. Resp. ¶ 28; Walters 1/5/04 Aff. ¶ 124.)
Ortsman held the Step III hearing. Plaintiff claims that Ortsman denied him access to search his office for evidence that he was at work on November 22. Hence, he had no document to corroborate his testimony that he was at work on that day. (As will be seen, plaintiff has recently acquired such a document.) Ortsman upheld the termination. (Def. Exhs. HH, II.)
On March 22, 2000, a hearing on unemployment benefits was held before Administrative Law Judge ("ALJ") Lynn A. Morrell. (Pl. 56.1 Stat. Resp. ¶ 30 and its Exh. 14.)
On May 16, 2000, plaintiff amended his SDHR complaint to reflect his January 2000 termination. (Def. Exh. PP.)
On May 24, 2000, ALJ Morrell found that plaintiff was absent on both November 19 and 22, 1999. However, the ALJ found that plaintiff was entitled to unemployment benefits:
The employer's witness testified that the claimant called in his absences due to sickness and that a message regarding the same was received by the employer. The employer's own policy then places the burden on the employer to notify the time records department and to have the claimant's attendance adjusted as to his use of accrued leave.
Given this policy, it was not unreasonable for the claimant to rely on the employer to have these changes made.
(Pl. Exh. 16.)
On October 11, 2000, the Unemployment Insurance Appeal Board overturned the ALJ's decision and denied the benefits, finding that "there is no acceptable explanation for the claimant's failure to properly report his absence on November 22, 1999 on the time sheet that he submitted . . ." (Def. Exh. NN.)
On August 10, 2000, plaintiff signed a second EEOC complaint, alleging retaliation that "started in 1998 after I cooperated with an investigation of racial discrimination and corruption against some of the senior employees of Bronx-Lebanon Hospital Center." (Def. Exh. SS.) His attorney, Etta Ibok, says that she served it on the EEOC by mailing it on August 10. She claims that she called the EEOC shortly thereafter and that EEOC intake told her that the charge had been forwarded to the SDHR. She says that she "explained that plaintiff did not intend to cross file this complaint with the SDHR or have it merged with the existing SDHR complaint." She also says that the EEOC assured her that it would trace and retrieve that August 2000 complaint from the SDHR, and that it apparently did so on August 30, 2000, which the EEOC entered as the filing date. (Ibok 1/5/04 Aff. ¶¶ 3-9; Def. Exh. SS.)
On February 26, 2001, the EEOC issued a Right to Sue letter on this second EEOC complaint.
On April 13, 2001, the SDHR dismissed plaintiff's September 3, 1999 complaint on the grounds of administrative convenience, because "the matter is presently being litigated in Federal Court . . ." (Def. Exh. PP.)
On May 17, 2001, plaintiff filed his complaint with our Court, alleging that the same conduct violated Title VII, and 42 U.S.C. § 1981, and the New York State Executive Law § 296 et seq., and the New York City Administrative Code § 8-107 et seq. On July 26, 2001, the Hospital defendants moved to dismiss the complaint. On February 2, 2002, Judge Marrero denied that motion.
On February 5, 2002, this case was reassigned to me. On September 25, 2002, plaintiff filed an amended complaint. (Def. Exh. TT.) On January 15, 2003, the action was settled as to Cottrell and Lemperle. The briefing on the current motion, for summary judgment, was concluded on January 26, 2004. On March 29, I advised the attorneys that I was writing an opinion denying summary judgment; we agreed that a jury trial would commence on July 12.
DISCUSSION
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment will be granted only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. The Court will construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. The moving party bears the burden of demonstrating that no genuine issues of material fact exist, and all inferences and ambiguities will be resolved in favor of the non-moving party. Once the moving party has provided sufficient evidence to support a motion for summary judgment, the non-moving party must set forth specific facts that show that there is a genuine issue for trial. Jones v. New York City Housing Authority, 2001 WL 406180, at *5 (S.D.N.Y. Apr. 20, 2001) (Kaplan, J.) (Eaton, M.J.); Winkfield v. City of New York, 1999 WL 1191544, at *2 (S.D.N.Y. Dec. 15, 1999) (Baer, J.).
A. Whether the Pre-Termination Claims Are Precluded by Time Bars or Other Procedural Defects
In his February 5, 2002 Order at page 2, Judge Marrero wrote:
. . . [T]his Court has jurisdiction over all the claims that formed a part of the August 2000 EEOC proceedings. The Court further notes that the allegations in the complaint are substantially consistent with the claims stated in Walters's August 2000 EEOC charge: specifically, Walters alleges that he was subjected to a pattern of discrimination that began with his participation in a 1998 internal investigation of the hospital, continuing thereafter and ultimately leading up to his allegedly retaliatory termination on January 12, 2000. Because Walters's August 2000 EEOC charge contains all of these allegations, none of them are time-barred, and the Court has jurisdiction to hear all of them.
I note that Judge Marrero's Order was written prior to the U.S. Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (June 10, 2002). In Morgan, the Supreme Court said:
We hold that [Title VII] precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.536 U.S. at 105, 122 S.Ct. at 2068.
Accordingly, I will now revisit the issue of whether plaintiff's multifaceted retaliation claim is timely. I will consider each aspect of his claim separately. I have divided the retaliation claim into four segments, starting with the oldest.
Segment 1 : Retaliation consisting of the comments made during the August 7, 1998 meeting with Underwood and the September 1998 transfer to the Fulton Division. These were the subjects of plaintiff's September 8, 1998 complaint to the EEOC. (Def. Exh. OO.)
The EEOC issued plaintiff a Right to Sue letter on August 6, 1999. The letter notified him that he must file a lawsuit within 90 days or his "right to sue based on this charge will be lost." (Def. Exh. 00.) He failed to do so. Accordingly, plaintiff may not seek Title VII damages with respect to the 1998 conduct alleged in the charge. Indeed, plaintiff concedes this point. (See Pl. Mem. p. 11, n. 5.) However, he may use these incidents as "background evidence in support of a timely claim." Hernandez v. Kellwood Co., 2003 WL 22309326 (S.D.N.Y. Oct. 8, 2003) (Swain, J.), quoting Morgan, 536 U.S. at 102, 122 S.Ct. at 2066 (2002).
As to Segment 1, plaintiff also invokes 42 U.S.C. § 1981. In New York, actions under § 1981 are timely if the complaint is filed in federal court within three years. Mian v. Donaldson, Lufkin Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 801 (E.D.N.Y. 1996) (Glasser, J.). Moreover, an employee can bring a § 1981 action against his employer without having to exhaust Title VII's administrative procedures. Campbell, 930 F. Supp. at 801. Thus, the § 1981 claim is timely as to Segment 1; a fortiori, it is timely as to the later segments.
As to Segment 1, plaintiff also invokes the New York City Human Rights Law, which also has a three-year statute of limitations. N.Y.C. Admin. Code § 8-502. Hence, the City law claim is timely as to Segment 1; a fortiori, it is timely as to the later segments.
Segment 2 : Retaliation consisting of the alleged demotion and transfer to the Concourse Division in late April 1999. This was the subject of his September 3, 1999 complaint to the SDHR. (Def. Exh. PP.)
The SDHR complaint was timely under the one-year statute of limitations in N.Y. Exec. Law § 297(5). Moreover, on April 13, 2001, the SDHR issued a Right to Sue letter. (Def. Exh. PP.)
Segment 3 : Retaliation consisting of the November 3, 1999 five-day suspension.
This incident of retaliation was mentioned in an internal complaint (Exh. QQ), but was never mentioned in the complaints to the EEOC and SDHR (Exhs. PP and SS). Plaintiff's counsel has presented evidence that Exh. SS was mailed to the EEOC on August 10, 2000. (Ibok Aff. ¶¶ 3-9, Exh. 19.) She also points out that Exh. SS said: "My unlawful discharge is part of a pattern of the retaliatory conduct that started in 1998. . . ." However, the Supreme Court has made clear that the word "pattern" does not excuse a Title VII plaintiff from the requirement of filing timely "charges addressing [each of] those acts." Morgan, 122 S.Ct. at 2072. Accordingly, even if Exh. SS was filed on August 10, 2000, it was still deficient, because it never mentioned the November 1999 5-day suspension.
Segment 3 cannot form the basis for liability under Title VII or the State Human Rights Law. However, it could possibly form the basis for liability under § 1981 and the City Human Rights Law.
Segment 4 : Retaliation consisting of the January 12, 2000 termination. (See Def. Exhs. PP and SS.)
This segment was raised in the May 16, 2000 amended complaint to the SDHR, well within the one-year statute of limitations. The SDHR issued a Right to Sue letter on April 13, 2001. Segment 4 was also raised in the August 10, 2000 EEOC charge, well within the 300-day filing period. The EEOC issued the Right to Sue letter on February 26, 2001. Hence, as to Segment 4, plaintiff has a timely claim under Title VII, § 1981, the State Human Rights Law, and the City Human Rights Law.
B. Whether a Rational Jury Could Find Prohibited Retaliation
I will now discuss whether there are any genuine issues of material fact with respect to the retaliation claims.
Under Title VII, it is unlawful for an employer to discriminate against any of its employees because the employee has opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). Courts analyze retaliation cases by using the Title VII framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). The claims brought under 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law are also analyzed under the McDonnell Douglas framework. Taitt v. Chemical Bank, 849 F.2d 775, 777 (2d Cir. 1988) (discussing 42 U.S.C. § 1981); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (discussing State and City Human Rights Law).
At the first step of the McDonnell Douglas framework, a plaintiff must establish a prima facie case. In order to establish a prima facie case of retaliation, a plaintiff must show four elements:
[1] that [he] "engaged in protected participation or opposition under Title VII, [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action."Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001), quoting Stunner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990).
Once the plaintiff has made out a prima facie case, the second step of the McDonnell Douglas framework requires an employer to show "evidence of a legitimate, nonretaliatory reason for the challenged employment decision." Cifra, 252 F.3d at 216.
For the purposes of this motion, I find that plaintiff has met his minimal burden of proving a prima facie case, even if there were no testimony from Rick Bay:
First. Plaintiff participated in the 1998 investigation as a witness. On July 21, 1998, he and Ms. Martinez discussed Underwood's alleged use of racial slurs towards the minority employees in his department, and Ortman's alleged involvement with vendors. Ms. Martinez does not deny that these topics were discussed.
Second. About two weeks later, Underwood told plaintiff that, if he did not have plaintiff's loyalty, then plaintiff "must leave or he would get rid of [plaintiff]." (Walters 1/5/04 Aff. ¶ 31.)
Third. One month later, plaintiff was transferred to the Fulton Division, and Underwood began to document plaintiff's "performance problems."
Fourth. Upon his return from his medical leave in late April 1999, plaintiff was placed under the supervision of Aramark employees. On September 3, 1999, plaintiff was permanently transferred to the Concourse Division and some of his duties were eliminated. He promptly filed a retaliation complaint with the SDHR. This SDHR complaint was another "protected activity." The defendants ignore it when arguing that "his July-August 1998 . . . `protected' activities are so temporally removed from his November 1999 suspension and January 2000 termination. . . ." (Def. Reply, p. 11.)
Fifth. On November 3, 1999, plaintiff was suspended for five days for allegedly using profanity against his supervisor.
Sixth. On December 1, 1999, plaintiff filed an internal EEO complaint, alleging that Ortsman, Underwood, Lemperle and Cottrell discriminated against him because of his race, color and handicap, and that Underwood was retaliating against him for his complaints of racial discrimination. (Def. Exh. QQ.)
Seventh. On January 10, 2000, Lemperle reviewed plaintiff's time records, and plaintiff was terminated.
We now move on to Step Two. The defendants have proffered legitimate, nonretaliatory reasons for taking the actions they took.
As for transferring plaintiff to the Fulton Division, the defendants say the reason was legitimate: to provide coverage because other managers were on leave.
As for transferring plaintiff to the Concourse Division, and excluding him from certain meetings, and requiring him to log his work assignments, the defendants argue that these are too insignificant to qualify as adverse employment actions. But See Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003). I plan to hear the trial evidence and then decide which actions should be presented to the jury as a potential source of liability. The other actions shall be considered only as background.
As for the five-day suspension, the defendants allege that plaintiff yelled and cursed at his supervisor Lemperle.
As for terminating plaintiff for stealing two days of sick leave, the defendants have submitted evidence that by November 1999 plaintiff had taken two more sick days than he had accrued. (Def. Reply, p. 6, n. 3; Griffin-Mahon 1/21/04 Aff. ¶¶ 3-5.) Also, the Hospital submitted evidence that it terminated other employees who were caught falsifying their time sheets. (Def. Exh. MM.) But the Hospital has redacted their names, and has not shown whether those employees had complained about discrimination.
We now move on to Step Three. Once the employer shows that it had legitimate, nonretaliatory reasons for its actions, the third step requires the plaintiff to "point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Cifra, 252 F.3d at 216.
As to the first sick day allegedly stolen, plaintiff points to evidence that he notified Lemperle and that Lemperle had a duty to correct the time record for that day. As to the second day, plaintiff has produced evidence to show that he was present at work on that day (November 22, 1999). Plaintiff's Exhibit 15 is a copy of a purchase requisition, dated that day and signed by Underwood. At the bottom of the document, the typist typed "RU/ow." A jury could logically conclude that "RU/ow" means that Orlando Walters typed this document on that date, to be signed by Robert Underwood. ((Walters 1/5/04 Aff. ¶¶ 124, 127.)
Moreover, plaintiff has submitted the affidavit of Rick Bay, the former Aramark employee. Bay says:
9. . . . I recall distinctly that Robert Underwood kept emphasizing that he wanted Ray Cottrell and Scott Lemperle to go after Orlando Walters and to fire him.
10. I also recall distinctly that Robert Underwood told Ray Cottrell and Scott Lemperle that Orlando had caused him a lot of problems and had some kind of pending action against him; therefore, he (Underwood) could not personally "touch" Orlando Walters.
11. During this conversation, Mr. Underwood referred to Orlando Walters as a "piece of shit" and stated: "I want that piece of shit out of here."
12. Mr. Underwood assigned primary responsibility for monitoring Orlando Walters to Scott Lemperle, instructing him to document all of Orlando Walters' movements, when he reported to and left work, went out on breaks, how long he took, etc., and to check his computer regularly to make sure that he was using it only for job related purposes.
13. I recall distinctly that, at the end of the discussion, Robert Underwood told Ray Cottrell and Scott Lemperle that he wanted daily "progress reports and updates" on "Orlando's termination." Plaintiff has clearly met his Step Three burden.
The Title VII claim is brought only against the Hospital. But plaintiff brings the same retaliation claim against all three defendants under § 1981 and the State and City Human Rights Laws.
In Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62 (2d Cir. 2000), the Second Circuit said:
We now explicitly hold what was implicit in our previous cases: individuals may be held liable under § 1981. We agree with the Tenth Circuit, however, that in order to make out a claim for individual liability under § 1981, a plaintiff must demonstrate "some affirmative link to causally connect the actor with the discriminatory action." Alien [v. Denver Pub. Sch. Bd.], 928 F.2d [973] at 983 [(10th Cir. 1991)]. "A claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement." Id.; See also Hicks [v. IBM], 44 F. Supp.2d [593] at 597 [(S.D.N.Y. 1999)] ("In each of the cases that have allowed individual liability [under § 1981], the individuals have been supervisors who were personally involved in the discriminatory activity.").Whidbee, 223 F.3d at 75.
Individuals can also be held personally liable under the New York State and New York City Human Rights Laws:
An individual corporate employee may be personally liable under the State HRL if he can be shown to have an ownership interest in the corporation or the "power to do more than carry out personnel decisions made by others." Tomka [v. Seiler], 66 F.3d [1295] at 1317 [(2d Cir. 1995)] . . . The New York City law "prohibits discriminatory practices not only by an "employer," but also by "an employee or an agent thereof," and thus provides for the individual liability of employees regardless of ownership or decision-making power. Murphy v. ERA United Realty, 251 A.D.2d 469, 674 N.Y.S.2d 415, 417 (2d Dep't 1998). Under both statutes, the plaintiff must show that the defendant engaged in "discriminatory acts." Stallings v. U.S. Elec. Inc., 270 A.D.2d 188, 707 N.Y.S.2d 9, 10 (1st Dep't 2000); See also Smith v. AVSC Int'l, Inc., 148 F. Supp.2d 302, 309 (2d Cir. 2001).Jong-Fwu v. Overseas Shipholding Group, Inc., 2002 WL 1929490, at *7 (S.D.N.Y. Aug. 21, 2002) (Cote, J.) (emphasis added). In footnote 3, Judge Cote noted that a person may be individually liable under § 296(6) of the State law if he:
"aid[s], abet[s], incite[s], compel[s] or coerce [s] the doing of any of the acts forbidden under this article, " as long as the person in question actually participates in the discriminatory conduct. See, e.g., Tomka, 66 F.3d at 1317; Murphy, 674 N.Y.S.2d at 417.
Plaintiff has clearly met his burden as to Underwood. Whether he has met his burden as to Ortsman is a closer question, but I find the evidence at this stage to be sufficient.
Perhaps the most powerful evidence against Ortsman is the following. On August 10, 1998, Ortsman summoned plaintiff to a meeting. Ortsman told him that President Fuentes had asked Ortsman to speak to plaintiff about the statements plaintiff had made to the investigating attorneys (Ms. Martinez and Mr. Steckler). The crucial allegation is that Ortsmanrequired plaintiff to reveal what he told the investigators about Underwood. Plaintiff did so, and also informed Ortsman that Underwood had threatened him. (Walters 1/5/04 Aff. ¶¶ 34-38.)
A jury could logically conclude as follows. President Fuentes had probably shown Ortsman the anonymous letter, including its allegation that Underwood had used racial slurs. Ortsman also learned that plaintiff had given information to the investigators which was potentially harmful to both Ortsman and Underwood. At that point, plaintiff had said that Underwood (but not Ortsman) was involved in racial discrimination; he had blamed Ortsman for questionable contract dealings. But Ortsman aggressively required plaintiff to reveal what he told the investigators about Underwood. A jury might logically conclude that Ortsman's motivation was to warn Underwood, and to spur Underwood (a) to discourage all of plaintiff's "disloyal" statements and (b) if necessary, to fire him.
CONCLUSION
I deny defendants' motion for summary judgment as to the retaliation claims. The Title VII claim is limited to the termination. Plaintiff wants to pursue at least one non-Title-VII claim, evidently so he can seek damages for the mental suffering reflected in the three-month medical leave in early 1999, which he alleges was caused by the earliest acts of retaliation. But I See a complication that has not been discussed by the parties. There is a possibility that the defendants would seek to introduce evidence of the October 2000 decision of the Unemployment Insurance Appeal Board, for possible collateral estoppel effect as to the legitimacy of the termination. This would be impossible as to Title VII, but possible as to all the other statutes invoked by the amended complaint. See Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 727-30 (2d Cir. 2001). I suggest that plaintiff simplify this case as follows:
A. Under the New York City Human Rights Law, ask the jury to rule, as to all three defendants, on Segments 1, 2 and 3 only.
B. Under Title VII (where the only defendant is the Hospital), ask the jury to rule on the termination claim (Segment 4).