Opinion
1782 2007
09-09-2011
Victoria Brightman, v. Prison Health Service, Inc., PHS MEDICAL SERVICE, P.C., AMERICA SERVICE GROUP, INC., DAN DOHERTY, TREVOR PARKS, BECKY PINNEY, JACK RAFFERTY, MARK LEGG and PAUL ROBINSON, Defendants.
, J.
Plaintiff Victoria Brightman ("Brightman") is employed as a physician's assistant in the correctional health care system. In New York City, health care is provided to inmates, housed in various correctional facilities, by private contractors hired by the City of New York ("City"). At three-year intervals, the existing contract with the City lapses and the City accepts bids from various vendors and awards a new contract to a chosen vendor. Prior to 2003, the New York City Health and Hospital Corporation oversaw the contractors. Since 2003, the City's Department of Health and Mental Hygiene ("DOHMH"), oversees the private contractors.
Prior to January 1, 2001, St. Barnabas Hospital contracted with the City to provide medical services at Rikers Island and the South Tower formerly known as Manhattan House of Detention ("MHD"). Commencing January 1, 2001, the Prisoner Health Services, Inc. and PHS Medical Service, P.C. (collectively "PHS"), pursuant to a contract with the City, which has been renewed approximately every three years, provides health care services to inmates housed in nine buildings on Rikers Island and at the MHD.
Plaintiff Brightman was employed as a physician's assistant by St. Barnabas Hospital, from January 1, 1998 until December 31, 2000, and was assigned to the MHD. Since January 1, 2001, Ms. Brightman has been employed by PHS in the same position. Defendant Paul Robinson ("Robinson") was hired by St. Barnabas Hospital in 2000, and is presently employed by PHS as a Health Service Administrator.
On October 9, 2000, while still employed by St. Barnabas Hospital, Ms. Brightman filed a complaint with its chief acting physician. The complaint alleged that she was being sexually harassed by Mr. Robinson. Prior to commencing the within action, plaintiff met with a representative of against PHS, with the New York City Commission on Human Rights ("CCHR") and filed a complaint on February 26, 2004, with the CCHR alleging harassment in the workplace. The CCHR rejected plaintiff's complaint finding that she failed to state a claim. Federal Court Action :
On December 20, 2004, Ms. Brightman filed a charge with the Equal Employment Opportunity Commission("EEOC"), claiming sexual harassment, sex discrimination and retaliation, pursuant to Title VII of the Civil Rights Act. Plaintiff's charge was based upon her claim that PHS had retaliated against her for making a sexual harassment complaint against Mr. Robinson on October 9, 2000, when they were both employed by St. Barnabas Hospital. On June 8, 2005, the EEOC terminated the processing of the charge, and issued a right to sue letter.
On August 11, 2005, plaintiff Brightman commenced an action in the United States District Court for the Eastern District of New York entitled Victoria Brightman v Prison Health Service Inc., Prison Health Medical Service, P.C., New York City Department of Health and Mental Hygiene, the City of New York, Don Doherty, Trevor Parks, Becky Pinney, Jack Rafferty and Paul Robinson. The federal complaint alleged that defendant's conduct violated Title VII of the Civil Rights Act ( 42 USC §1983 et seq.), the New York State Executive Law §296, et seq., the New York City Administrative Code Sections 8-107, and the Family and Medical Leave Act. In a decision and order dated March 30, 2007, the federal court dismissed all of Ms. Brightman's claims on the grounds that the allegations set forth in the complaint failed to state a claim, and declined to exercise jurisdiction over her state law claims under the New York State Human Rights Law and the New York City Civil Rights Law. New York State Supreme Court Action :
Plaintiff commenced the within action in Supreme Court, Bronx County, on August 24, 2007. Plaintiff's allegations are substantially identical to those set forth in her federal action. The Honorable Diane T. Renwick, in an order dated March 18, 2008 and entered March 20, 2008, determined that plaintiff's claims of discrimination which took place prior to August 24, 2004, are barred by the statue of limitations. The Honorable Barry Salman, in an order dated September 22, 2008, denied the parties motion and cross-motion for reargument, and further determined that plaintiff's claims of harassment based on upon the filing of the EEOC complaint which occurred prior to August 1, 2004 are time barred. The Appellate Division, First Department, affirmed Justice Renwick's order in its entirety (Brightman v. Prison Health Services, Inc., 62 AD3d 472 [2009]).
In an order dated September 23, 2008, the Honorable Cynthia S. Kern, granted the defendants' motion to change venue and transferred the action to Queens County. This court, pursuant to an order dated December 6, 2010, extended the parties' time to move for summary judgment until March 31, 2011. The Relevant Law: State Human Rights Law:
Executive Law §296 [1][e] makes it:
"an unlawful discriminatory practice:[f]or any employer, labor organization or employment agency to discharge, expel or otherwise discriminate any person because he or she has filed a complaint, testified or assisted in any proceeding under this article".
The standards for recovery under Executive Law § 296[1] are the same as the federal standards under Title VII of the Civil Rights Act of 1964 (42 USC § 2000 et seq.) (Mittl v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]). Thus, "because both the Human Rights Law and Title VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful to the resolution of this appeal" (Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26 [2002];see, also, Forrest v Jewish Guild for the Blind, 3 NY2d 295 [2004]). §296 of the Executive Law of the State of New York is directed at employers, and an employee, who "is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others" is not individually liable for a violation of the statute (Patrowich v Chemical Bank, 63 NY2d 541,542 [1984]).
Executive Law §296(6), however, provides that:
"[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so."
In general, one who actually participates in the conduct giving rise to the discrimination claim is an aider and abettor, even though they lack the authority to either hire or fire the plaintiff (Feingold v State of New York, 366 F3d 138, 158 [2004]). Individual claims brought pursuant to Executive Law § 296 (6) may also be viable against supervisors who failed to investigate or take appropriate measures despite being informed about the alleged conduct (see Lewis v Triborough Bridge and Tunnel Authority, 77 F Supp 2d 376, 384 [1999]).
Executive Law §296(7) provides that:
"It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article."
New York City Human Rights Law:
The NYCHRL was revised in 2005 through the Local Civil Rights Restoration Act of 2005 (Restoration Act). As a result of these revisions, the NYCHRL is construed more liberally than its state or federal counterparts(Zakrzewska v. The New School, 14 NY3d 469[2010]; Brightman v Prison Health Services, Inc., 62 AD3d 472, [2009]; Barnum v New York City Transit Authority, 62 AD3d 736, 738 [2009].) Analysis of claims under the NYCHRL is to be independent, and the court must evaluate the claims with regard for the statute's "uniquely broad and remedial purposes." (Williams v New York City Housing Authority, 61 AD3d 62, 79,[2009].) The courts have also recognized that the law cannot operate as a "general civility code." (Williams v New York City Housing Authority, 61 AD3d at 79 [internal quotation marks and citation omitted]). Summary Judgment :
Defendants now move for summary judgment and dismissal of the complaint in the entirety. Plaintiff's contention that the court should dismiss defendants' motion for failure to annex their answer to the initial moving papers, is rejected, as said responsive pleadings is attached to the reply papers, and there has been no predjudice to the plaintiff. (Pandian v. New York Health & Hosps. Corp., 54 AD3d 590 [2008]; Welch v. Hauck, 18 AD3d 1096, 1098 [2005] lv denied 5 NY3d 708 [2005]). The court further finds that plaintiff's objections to the original affidavit submitted by Mr. Doherty are without merit, as this defendant has also submitted a properly notarized affidavit.
Defendants first assert that this action is barred by the doctrine of election of remedies. It is well-settled that, once a complainant elects to pursue his or her discrimination claim administratively by filing a complaint with the New York City Commission on Human Rights, the complainant may not bring a subsequent judicial action based on the same alleged discriminatory practices. A complainant may elect to seek redress in either an administrative or judicial forum, but may not choose both, the remedies being mutually exclusive (see, Matter of James Coughlin, 124 AD2d 718 [1986]; Legg v. Eastman Kodak Co., 248 AD2d 936 [1998]; Matter of Universal Packaging Corp. v. new York State Div. Of Human Rights, 270 AD2d 586 [2000]; Magini v. Otnorp, Ltd., 180 AD2d 476 [1992], appeal denied 80 NY2d 751 [1992]; Executive Law §297[9] New York City Administrative Code §8-502[a]).
Here, the documentary evidence demonstrates that although Ms. Brightman went to the offices of the New York City Commission on Human Rights on February 26, 2004 to complain about harassment in the workplace, no complaint was actually filed. Therefore, contrary to defendants' assertions, plaintiff is not precluded from commencing this action. Accordingly, that portion of defendants' motion which seeks summary judgment and dismissal of the complaint due to the doctrine of election of remedies is denied.
Plaintiff's complaint is based upon a claim of retaliation. Under both the State and City Human Rights Law, it is unlawful to retaliate against an employees for opposing discriminatory practices. (See, Executive Law § 297[7]; Administrative Code § 8-107[7]). In order to make out a claim, a plaintiff must show that (1) she [he] was engaged in protected activity, (2) her [his] employer was aware that she participated in such activity, (3) she [he] suffered an adverse employment action based upon her [his] activity, and (4) there is a casual connection between the protected activity and the adverse action (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 312-313, [2004]; Hernandez v. Bankers Trust Co., 5 AD3d 146 [2004]; Pace v. Ogden Servs. Corp., 257 AD2d 101, 104 [1999]). The court will address these elements as it applies to the named defendants.
The standard of proof for retaliation claims brought pursuant to New York State Human Rights Law ("NYSHRL") is the same as for claims brought under Title VII (Maher v. Alliance Mortgage Banking Corp., 650 F Supp 2d 249, 259 [2009]). When analyzing claims for retaliation, courts apply the burden shifting test as set forth in McDonnell Douglas Corp. v. Green 9411 US 792, 802 [1973]), which places the initial burden for establishing a prima facie case of retaliation on the plaintiff. Once a prima facie case of retaliation is established, the employer may still be entitled to summary judgment if it can provide a legitimate and nondiscriminatory reason for challenged employment decision (Pellegrini v. Sovereign Hotels, Inc., 2010 WL 3723999, 2010 US Dist LEXIS 96037 [2010]). Thus, the employer may be entitled to summary judgment unless the plaintiff provides sufficient evidence to "permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation, and that the prohibited factor was at least one of the motivating factors". (Id. [Internal quotation marks and citations omitted]).
With the respect to the third element of a claim for retaliation and the definition of "adverse employment action," the plaintiff need only show that the challenged action was "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination." (Hicks v Baines, 593 F3d 159, 162 [2010], quoting Burlington N. & Santa Fe Ry. v White, 548 US 53, 57 [2006]; see, also, Henderson v City of New York, 2011 US Dist LEXIS 78451 [2011]).
As for the fourth required element, a causal connection can be established directly, through evidence of retaliatory animus, such as verbal or written remarks (see, e.g. Mandell v County of Suffolk, 316 F3d 368, 383 [2003]), or indirectly, by showing that the adverse action closely followed in time the protected activity (See, Gorzynski v JetBlue Airways Corp., 596 F3d 93, 110-11 [2010]; Dubois v Brookdale Univ. Hosp., 6 Misc 2d 1023[A] [2004], affirmed 29 AD3d 731 [2006]); McCoy v State of New York, 16 Misc 3d 1128[A] [2007]; Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2001]). The elements of retaliation under the New York City Human Rights Law ("NYCHRL") differ from those required under the State Human Rights Law only in "that the plaintiff need not prove any adverse' employment action; instead, he [she] must prove that something happened that would be reasonably likely to deter a person from engaging in protected activity.'" (Jimenez v City of New York, 605 F Supp 2d 485, 528 [2009], quoting Administrative Code of the City of New York § 8-107[7]; Gorokhovsky v City of New York, 2011 US Dist LEXIS 54941 [2011]). Defendant ASG :
Plaintiff's first and second causes of action for retaliation against America Service Group, Inc. (ASG) and PHS allege violations of the NYSHRL and NYCHRL. The claim against ASG is based upon the allegation that it is the parent corporation of PHS. Generally, an entity that is merely affiliated with a plaintiff's employer is not liable for the employer's discriminatory acts. However, in certain extraordinary circumstances, a corporate entity may be held liable for the discriminatory acts of a related entity. (Murray v Miner, 74 F3d 402, 404 [1996]). "To prevail in an employment action against a defendant who is not the plaintiff's direct employer, the plaintiff must establish that the defendant is part of an integrated enterprise' with the employer, thus making one liable for the other." (Parker v Columbia Pictures Industries, 204 F3d 326, 341 [2000]; see also Arculeo v On-Site Sales & Marketing, LLC, 425 F3d 193, 198 [2005]. The single employer doctrine was initially developed to determine whether two entities constitute a single employer in the context of labor disputes, but it has since been adopted in the Title VII context. (Cook, 69 F3d at 1240.) The doctrine also applies to determine liability under the NYSHRL and the NYCHRL absent an employer-employee or contractual relationship. (See, Ayala v Metro One Sec. Sys., Inc., 2011 US Dist LEXIS 42325 [2011]; Barbosa v Continuum Health Partners, Inc., 716 F Supp 2d 210, 216 [2010]; Fowler v Scores Holding Co., Inc., 677 F Supp 2d 673, 681 [2009].)
It is undisputed that plaintiff is an employee of PHS and that no contractual relationship exists between plaintiff and ASG. In her complaint, plaintiff does not allege that ASG exercised any control over PHS, or that it directly intervened in the management of PHS. In opposition to the instant motion, plaintiff has failed to present any evidence which would support a finding that ASG made any decisions regarding employment matters related to the plaintiff or that an integrated enterprise exists. Plaintiff, therefore, cannot maintain a claim against this defendant (see, Horowitz v Aetna Life Ins., 148 AD2d 584 [1989]). Accordingly, that branch of the defendants' motion seeking summary judgment dismissing the complaint against defendant ASG is granted. Defendant PHS :
Turning now to plaintiff's claims against defendant PHS, the court finds the within. Although plaintiff's verbal complaint of sexual harassment, made to her former employer St. Barnabas Hospital sometime prior to October 9, 2000, constituted protective activity, there is no evidence that the details of this verbal complaint were ever communicated to PHS. Plaintiff documented her complaint regarding Mr. Robinson, in a written memorandum dated October 9, 2000, addressed to David Okanya, M.D. at St. Barnabas Hospital. At her deposition, plaintiff testified that she had no personal knowledge as to whether any documents in her St. Barnabas personnel file, including the October 9, 2000 memorandum, were transferred by St. Barnabas to PHS. Plaintiff stated that she did not detail Mr. Robinson's alleged sexually inappropriate conduct towards her in the October 9, 2000 memorandum, as she had previously made a verbal complaint to the St. Barnabas employees. There is no evidence that the October 9, 2000 memorandum was actually placed in Ms. Brightman's personnel file while she was employed by St. Barnabas, that the memorandum was transferred by St. Barnabas Hospital to PHS or that PHS was ever made aware of the contents of the memorandum prior to the commencement of this action.
Plaintiff Brightman testified that, in March 2001, she had a conversation with Dr. Parks regarding her proposed transfer from MHD to Rikers Island. In a memorandum, dated April 3, 2001, addressed to "Mr. Doherty-Director of Human Resources" at PHS, plaintiff Brightman stated as follows:
"Please be advised that a complaint of sexual harassment and discrimination was made against Paul Robinson in October 2000 while we were both employed by St. Barnabas Hospital Correctional Health Services. At that time we both worked at Manhattan Detention Complex in Manhattan (MDC). PHS presently employs Mr. Robinson and me. Mr. Robinson is currently assigned at Rikers Island in Queens and I am located at MDC in Manhattan. It is hoped that this distance will be maintained and honored by PHS to prevent any potential liability. Thank you for your cooperation."This memorandum was sent to various PHS employees, including Dr. Parks. Dr. Parks testified that he was aware that Ms. Brightman had made a complaint of sexual harassment against Robinson, and therefore she was not transferred to the Rikers Island facility in April, 2001. Although PHS had direct knowledge of the April 3, 2001 memorandum, the details of plaintiff Brightman's sexual harassment complaint against Robinson were not disclosed to PHS. Mr. Doherty stated, at his deposition, that he received the April 3, 2001 memorandum, but never inquired as to the sexual harassment claim, as it occurred during Brightman's and Robinson's employ at St. Barnabas.
The court need not determine whether plaintiff was engaged in a protected activity in 2000, 2001 or anytime thereafter, as she cannot establish that she suffered an adverse employment action. With respect to her 2001-2002 suspension, PHS asserts that as plaintiff had a felony charge pending against her, she was not allowed to work in the prison system at that time. The reason for plaintiff's suspension, however, is irrelevant, and will not be considered here, as it occurred outside of the applicable statute of limitations. As noted, it has previously been determined in this action that plaintiff is precluded from asserting specific acts of discrimination which occurred prior to August 24, 2004. In connection with the EEOC complaint filed on December 20, 2004, plaintiff has also been precluded from asserting specific acts of discrimination which occurred prior to August 1, 2004. The statutory time period within which to make such allegations is applicable to both the NYSHRL and the NYCHRL claims. Plaintiff, therefore, may not maintain a claim for retaliation based upon the 2001-2002 suspension under the NYSHRL or the NYCHRL.
With respect to the claim of retaliation against PHS based upon demands made for her credentials between August 12, 2002 and July 1, 2004, this claim is time-barred for the aforestated reasons. Additionally, demands made by PHS for credentials made in August, 2004 or later, in compliance with DOHMH requirements for medical providers in City prisons, are not the type of adverse action that would be "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination," as required under the NYSHRL. (Hicks v Baines, 593 F3d at 162 [2010], quoting Burlington N. & Santa Fe Ry. v White, 548 US 53, 57 [2006]). Nor are such demands the type of event "that would be reasonably likely to deter a person from engaging in protected activity." (Administrative Code of the City of New York § 8-107[7]). Plaintiff, therefore, cannot establish a claim for retaliation under the NYSHRL or the NYCHRL based upon the demands for made for credentials.
Plaintiff's claim of retaliation against PHS following the filing of the EEOC complaint is based upon the below-stated alleged incidents. On January 7, 2005, plaintiff objected to conducting sick call in a particular space within the radiology unit and was instructed to either perform her duties in that space or to go home. Plaintiff agreed to perform her duties. On January 13, 2005, the Health Service Administrator demanded that she provide a copy of her medical health form no later than January 18, 2005, or be taken off the work schedule. Plaintiff asserts that although her health form was not due until March 9, 2005, she timely complied with the demand and submitted the form, through her union delegate, to the Health Services Administrator and to Mary Legg. Plaintiff further asserts that Legg refused to accept the form, and insisted that she provide another document.
At her deposition, plaintiff conceded that an annual health form is required by her employer. Plaintiff also conceded that she was required to submit the health clearance form to PHS prior to returning to work, following an illness. Thus, defendant PHS's request for a health form in advance of its expiration date, is not an adverse employment action, as such a demand is neither so harmful as to "dissuade a reasonable worker from making or supporting a charge of discrimination," nor "likely to deter a person from engaging in protected activity". (Id.) Furthermore, plaintiff did not suffer any adverse action as a result of this demand. She was not required to miss any work, nor does she claim that Ms. Legg's alleged refusal to accept the proffered form resulted in any disciplinary action.
Plaintiff Brightman further asserts that on January 19, 2005, Mr. Doherty's administrative assistant informed her that pursuant to Doherty's order she was to go home. Plaintiff alleges that due to stress, she began to suffer chest pains and was hospitalized that day. She returned to work on February 22, 2005, and was again ordered by Doherty to go home or be escorted from the premises by Department of Corrections personnel. Plaintiff contends that following intervention by her union delegate, the Human Resources representative advised her to go home and await her EEOC hearing. Although, plaintiff Brightman was directed to go home because she did not submit the required medical clearance form, the evidence reveals that she did not actually leave work that day and submitted the requested form the next day.
In support of her opposition, plaintiff submits the affidavit of restitution by Vanessa Jones. A review of this document it contains inadmissible double hearsay with respect to the statements allegedly made by Mr. Doherty. Thus, the affidavit is insufficient to defeat a motion for summary judgment (Roche v Bryant, 81 AD3d 707 [2011]; Stock v Otis El. Co., 52 AD3d 816 [2008]).
Plaintiff's deposition testimony further reveals that she did not follow Doherty's alleged directive and did not actually go home on any of above dates, or did she leave work because of his alleged statements. Neither was she disciplined in any manner on said dates. Thus, these unrealized threats of discipline do not constitute an adverse action under the NYSHRL, as they lacked any consequences, and thus would not "dissuade a reasonable worker from making or supporting a charge of discrimination." (Id.) Moreover, these threats do not constitute an adverse action under the NYCHRL, as they are not "likely to deter a person from engaging in protected activity". (Id.) The comment allegedly made to plaintiff by Doherty in 2006, "[s]o you are still here, huh" and his comment allegedly made in 2007, "[y]ou are still a pain in the ass," are also patently insufficient to demonstrate that plaintiff suffered an adverse employment action under the NYSHRL or the NYCHRL.
Additionally, claim of retaliation against PHS based upon a denial of overtime assignments prior to October, 2005, is unsupported by the evidence. Plaintiff asserts that two other physician's assistants on her shift, David Viera and Richard Dorf, had been working overtime Mondays, Wednesdays and Fridays, and on alternating Tuesdays and Thursdays, on a weekly basis for three years, and that this distribution of overtime violated the collective bargaining agreement. Plaintiff further contends that she worked minimal hours of overtime in 2003, 2004 and 2005, and did not have steady overtime, until 2006 when she pursued a grievance. Plaintiff's claims pertaining to overtime prior to August 2004 are barred by the statute of limitations, for the reasons previously stated. With respect to overtime assignments between August 2004 and 2006, the evidence presented is insufficient to establish that the employer's alleged violation of the collective bargaining agreement, which affected all physician's assistants, was retaliatory in nature.
The evidence presented establishes that Ms. Brightman worked overtime on a regular basis in 2006 and 2007 and was compensated for said work. Plaintiff's allegation that she believed that her Kronos time records were tampered with so as to deprive her of proper compensation is, without evidence, purely speculative. Plaintiff contends that overtime was taken away from her in 2007, when PHS hired a full time "floater" in 2007 to work the overtime shifts previously assigned to her. The hiring of a the "floater" does not constitute evidence of retaliation.
Finally, with respect to defendant PHS, plaintiff alleges that after she filed a complaint of sexual harassment against Paul Robinson on March 12, 2008, she was subject to a series of bogus disciplinary actions, including being threatened with a two week suspension for allegedly failing to have records of immunity to chicken pox following an infectious disease investigation. However, the March 12, 2008 internal complaint against Robinson was made nearly seven months after the commencement of this action. As plaintiff has not amended her complaint or Bill of Particulars to include a claim based upon a sexual harassment complaint and alleged retaliation which occurred after the commencement of this action, this court is without authority to consider the March 12, 2008 memorandum, or any claimed action, which occurred after the commencement of this action.
Thus, that portion of defendants' motion which seeks summary judgment and dismissal of plaintiff's causes of action against PHS is granted. Defendants Paul Robinson, Becky Pinney and Jack Rafferty :
In her third and fourth causes of action plaintiff asserts a claim against Paul Robinson for "aiding and abetting" retaliation, in violation of the NYSHRL and NYCHRL. However, plaintiff's complaint does not contain any allegations with respect to Mr. Robinson which occurred during the relevant time period, August 24, 2004 through August 24, 2007. Although, plaintiff, in opposition to the motion to dismiss, alleges that she filed a new claim of sexual harassment with PHS against Robinson on March 12, 2008, as hereinabove stated, however she has not amended her complaint or Bill of Particulars to include said claim, which allegedly arose some seven months after the commencement of this action. Thus, plaintiff's new allegations against Mr. Robinson and PHS will not be considered by this court.
With respect to Becky Pinney, the only allegation set forth in the complaint during the relevant time period is that on January 7, 2005, plaintiff was informed by another individual that Pinney wanted her to go home. It is noted that plaintiff, however, did not do so on that date. This bare allegation is insufficient to give rise to individual liability for "aiding and abetting" under the NYSHRL and the NYCHRL.
Plaintiff's allegations against Jack Rafferty, the Director of Human Resources for PHS from 2001 to 2004, pertain to her 2001 suspension and to requests for credentials made prior to August 24, 2004. As none of plaintiff's allegations fall within the applicable time period, her claim against Mr. Rafferty for "aiding and abetting" is time-barred.
Consequently, that branch of defendants' motion which seeks summary judgment dismissing the complaint against Paul Robinson, Becky Pinney and Jack Rafferty is granted. Defendants Dan Doherty, Trevor Parks and Mary Legg :
Plaintiff's claims against Dr. Doherty, the Division Vice President of Prison Health Services, Inc., during the relevant time period, consist of a directive that she "go home" on February 22, 2005, and two isolated comments. As determined above, none of these incidents are sufficient to establish a prima facie claim for retaliation, and therefore, are insufficient to establish a claim for "aiding and abetting" in violation of NYCHRL or NYSHRL.
Plaintiff's allegations against Trevor Parks during the relevant period are based upon an incident, which occurred on July 7, 2005, in which plaintiff alleges she was reprimanded by the PHS Administrator, who also directed her to swipe her card and go home upon alleged authorization of a defendant Parks. Plaintiff, however, did not go home that day. Moreover, there is no evidence that Dr. Parks designed, implemented, or participated in any retaliatory acts against the plaintiff.
It is undisputed that DOHMH requires all health care providers employed by PHS to maintain current licenses and credentials. Since 2004, the credentialing reapplication process was required every two years, and in October 2009, it was changed to every three years. Defendant Mary Legg has been the credentialing coordinator for PHS since March 2004.
Plaintiff's claims regarding the letters she received from Ms. Legg are baseless. The evidence presented establishes that in March 2004, PHS had 300 to 350 medical care providers who worked at the various Rikers Island facilities and at MHD. In the latter part of 2005, PHS created a data base for its medical care providers which lists each provider's credentials and their expiration date. The data base generates an initial letter, addressed to the practitioner, 60 days before the expiration date of a particular credential, and a second letter 30 days before the expiration date. The redacted letters submitted herein establish that although each letter contains a reference to "expired credentials," the body of the letter clearly sets forth the credential's expiration date, each letter is dated 60 or 30 days in advance of the actual expiration date, and is intended to inform the practitioner of the need to renew her or his credentials. There is no evidence that plaintiff was the only recipient of these letters, nor that they were sent for any purpose other than to remind plaintiff Brightman of the need to update her credentials in a timely fashion. The fact that plaintiff received such letters does not constitute retaliation and does not constitute "aiding and abetting" under the NYSHRL or the NYCHRL.
In addition, contrary to plaintiff's assertions, there is no evidence that Ms. Legg or PHS permitted employees to continue working with expired credentials, unless there was a grace period for the particular credential, the employee was scheduled to take a required class, or otherwise immediately updated the credential. With respect to Ms. Brightman in particular, the evidence presented establishes that the DOHMH sent an email to PHS regarding the recredentialing process, and informed PHS that Ms. Brightman's credentialing application had been deficient since June 1, 2005, and that if DOHMH was not in receipt of the requested documentation by August 24, 2005, said agency would request her immediate termination and would deny her request for credentialing. Ms. Legg testified at her deposition that the DOHMH would not accept credentials with expiration dates of less than 30 days. She stated that if a particular practitioner has a credential that is about to expire, she would give them a courtesy call, and that if the employee did not provide the necessary document, he or she would be taken off the work schedule. Therefore, the fact that Ms. Legg verbally communicated with Ms. Brightman on January 25, 2007, regarding the upcoming expiration of credentials, does not constitute retaliation, or "aiding or abetting" under the NYSHRL or the NYCHRL.
Finally, with respect to the health form allegedly rejected by Ms. Legg on January 18, 2005, there is no evidence that Ms. Legg requested the proffered health form, or that it was the type of health form that was maintained in the credentialing file. However, the rejection of a single health form is insufficient to establish that Ms. Legg engaged in any behavior that constituted "aiding and abetting" within the meaning of the NYSHRL or the NYCHRL.
Accordingly, defendants' motion for summary judgment dismissing against defendants Dan Doherty, Trevor Parks and Mary Legg is granted. Conclusion :
Defendants' motion for summary judgment dismissing the complaint in it's entirety is hereby granted. This constitutes the decision, order and judgment of this court.
J.S.C.