Opinion
112504/04.
June 28, 2006.
DECISION AND ORDER
Plaintiff Hortense Edwards (Edwards) arleges that she was discriminated against and harassed in the course of her employment based on her age, and retaliated against for complaining about the alleged discrimination, in violation of New York State and New York City Human Rights Laws, Executive Law § 296 et seq. and the Administrative Code of New York § 8-107 et seq., (NYSHRL and NYCHRL, respectively).
The remaining defendants, Jamaica Hospital Medical Center (Jamaica Hospital) and Max Sclair (Sclair), move for summary judgment pursuant to CPLR 3212 seeking dismissal of Edwards's remaining age discrimination and retaliation claims, both of which are asserted under NYSHRL and NYCHRL, on the grounds that: (1) Edwards failed to establish a prima facie case of age discrimination and/or retaliation; and (2) to the extent a prima facie case is found to exist, plaintiff failed to show that Jamaica Hospital's legitimate business reason for terminating Edwards from Jamaica Hospital was a pretext.
On March 14, 2005, the court dismissed plaintiff's harassment claims, as well as all claims against Gregory Bradley, s/h/a "John" Bradley.
For the foregoing reasons, defendants' motion for summary judgment is granted.
BACKGROUND
1. General Background
On or about February 10, 1975, Edwards was hired by Jamaica Hospital Nursing Home, Inc. to work as a nursing assistant at a facility called Trump Pavilion. She was twenty-nine years old at the time.
Jamaica Hospital Nursing Home, Inc. is a separate entity from Jamaica Hospital; however, there is a shared services arrangement between the two entities (Sclair dep. at 36). Jamaica Hospital does not contest its status as Edwards's former employer, and Sclair had administrative responsibility over employees of both entities.
From her date of hire until 1995, Edwards worked full-time, five days a week. In 1995, she requested and was granted a reduction in her work schedule from five to four days a week. In the spring of 2001, she again requested and was granted another work schedule reduction from four to three days a week. At all times herein, she worked the day shift, from 7:00 a.m. to 3:00 p.m. (Edwards dep. at 18, 27 — 28; Sclair dep. at 72-73). Beginning in 1986, Edwards began working full-time at Flushing Hospital, working a 3:30 p.m. to 11:00 p.m. shift (Edwards dep. at 6 — 7).
Sclair is the Vice President of Human Resources at Jamaica Hospital. In 1999, Jamaica Hospital took over Flushing Hospital, at which point Sclair began overseeing both hospitals (Sclair dep. at 54).
2. Plaintiff's Attendance at Jamaica Hospital
Throughout her employment at Jamaica Hospital, Edwards was repeatedly advised that her attendance was an issue (see Jamaica Hospital Nursing Home Job Description/Performance Evaluation dated 12/10/01; Jamaica Hospital Nursing Home Job Description/Performance Evaluation dated 5/3/99 at 4; Employee Conference Form dated 3/23/99; Employee Conference Form dated 5/4/95) . In December of 2001, Theresa Flores, nursing director at Jamaica Hospital, and Greg Bradley, administrator of Jamaica Hospital, informed Sclair that there were five or six employees with attendance problems, including Edwards, which not only caused disruption to patient care, but also cost Jamaica Hospital money in paying overtime for the employees who were asked to fill-in to replace the employees who were calling in sick (Sclair dep. at 140-142, 144). The employees, ranging in age from their late twenties to fifties, were all disciplined in some form, depending on the severity of their attendance problems (Sclair dep. at 223 — 225). Edwards was absent from work for at least 12 days during 2001, which was considered excessive given her three-day work week (see Plaintiff's 2001 Annual Employee Attendance Record — Jamaica Hospital). In response, Sclair reviewed her attendance records (Sclair dep. at 7-8, 200). It was then that Sclair learned that Edwards was using personal and sick days at Jamaica Hospital only to work overtime at Flushing Hospital (Sclair dep. at 209, 211; see also Plaintiff's 2001 2000 Annual Employee Attendance Records — Jamaica Hospital; Plaintiff's 2001 2000 Annual Employee Attendance Records — Flushing Hospital).
3. Plaintiff's Termination Meeting
On January 7, 2002, Edwards was sent to Sclair's office where he advised her that he had discovered that she was using her personal days and sick days to work overtime at Flushing Hospital (Sclair dep. at 227 — 228). Sclair reviewed the attendance records with Edwards (Sclair dep. at 215, 228). Edwards claimed that on one of the days in question she was having car trouble and was unable to have the car repaired in time to report to her morning shift at Jamaica Hospital, but that the car was repaired in time for her to report to Flushing Hospital for her afternoon shift (Edwards dep. at 117; Sclair dep. at 216, 228 — 229). She did not have an answer about the other days (Sclair dep. at 216). As a result, Sclair offered Edwards the option to resign or be Lerminated. When she refused to resign, Edwards was terminated based on her attendance issues. (Edwards dep. at 40; Sclair dep. at 209, 211).
Edwards understood that the termination was effective immediately. After Sclair informed her that she was being fired, she asked if the reason was because of her age (Edwards dep. at 49). Sclair denies that she ever made any complaints of discrimination during the termination meeting or that she was being treated unfairly because of her age (Sclair dep. at 232, 317). Edwards admits that she never filed any discrimination complaints prior to January 7, 2002 and that Sclair never made any comments to her about her age (Edwards dep. at 84, 148) . Edwards has no witnesses to her allegation of age discrimination. Although she denies ever being told that she was being terminated because she abused her sick time, she admits that the reason she was terminated was because Sclair found out she was working at Flushing Hospital. Specifically, Edwards testified:
Q: . . .What was your feeling as to the reason why you were terminated?
A: In my words again, I think maybe because [Sclair] found out I was working at . . . Flushing, because he's a human resource manager for Flushing, and I'm working at Flushing and working there.
Q: Working at Trump Pavilion?
A: Yes.
Q: Anything else, any other reason?
A: No.
(Edwards dep. at 118, 120-21).
Edwards's union, Local 1199, filed a grievance on her behalf concerning the termination. On January 28, 2002, the parties met to further discuss the decision. Sclair was not present at this meeting (Sclair dep. at 255). On March 13, 2002, Edwards received a letter from the union notifying her that her grievance was denied by Jamaica Hospital.
4 . Other Purported Evidence of Age Discrimination and Retaliation
Edwards asserts that Jamaica Hospital has engaged "in a pattern and practice of trying to eliminate the older, more qualified and more experienced employees, and substitute them with younger, less qualified, and less costly employees" (see complaint ¶ 48). Specifically, Edwards refers to comments made by other nurses to Else Collins, a 65 year-old nursing assistant at Jamaica Hospital, stating that she was a "slow worker" and asking her when she plans on retiring (Edwards dep. at 100, 102). Edwards also claims a former employee, Leola Mitchell, then an approximately 60 year-old nursing assistant, was forced to resign when a co-worker in her late fifties asked Ms. Mitchell "when she was going to retire" (Edwards dep. at. 100, 108). She testified that these incidents occurred ten to twenty years ago (Edwards dep. at 100-101). She could not recall who replaced Ms. Collins and Ms. Mitchell. While Edwards recalls a handful of individuals who she believes were replaced with younger employees, she admits having no knowledge as to whether the individuals were hired to replace older employees (Edwards dep. at. 74 — 80) . She has no knowledge of anyone else bringing an age discrimination claim against Trump Pavilion or Jamaica Hospital (Edwards dep. at 150) .
DISCUSSION
In order to grant summary judgment, there must be no material or triable issues of fact presented. It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact" (Wolff v New York City Trans. Auth., 21 AD3d 956 [2d Dept 2005], quoting Winegrad v New York University Med. Ctr., 64 NY2d 851, 853). The party opposing the motion must then come forward with sufficient evidence to create an issue of fact for the consideration of the jury. (Pinto v Pinto, 308 AD2d 571 [2d Dept 2003]).
1. Plaintiff's Age Discrimination Claims
The standards for establishing unlawful discrimination under the NYCHRL are like those set forth under the NYSHRL (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 n3 [2004]). Also, claims brought under the NYSHRL and NYCHRL parallel the analysis used in federal claims, including ADEA claims (see Morris v New York City Dept. of Sanitation, 2003 WL 1739009 [SD NY 2003], citing Tyler v Bethlehem Steel Corp., 958 F2d 1176, 1180 [2nd Cir 1992]).
In assessing age discrimination claims, New York courts apply theMcDonnell Douglas burden shifting framework (see McDonnell Douglas Corp. v Green, 411 US 792; see also Ioele v Alden Press, Inc., 145 AD2d 29 [1st Dept 1989]). Under this analysis, plaintiff must first establish a prima facie case of discrimination. Once the employee establishes a prima facie case of discrimination, the burden then shifts to the employer to proffer evidence of a legitimate, non-discriminatory reason for the adverse employment action. (see Ferrante v American Lung Assn., 90 NY2d 623, 629; Listemann v Philips Components, 13 AD3d 494 [2d Dept 2004]). If the employer produces such evidence, the burden shifts back to the employee to establish that the employer's proffered reason is a mere pretext for discrimination (Ferrante, 90 NY2d at 629; Listemann, 13 AD3d at 494). The ultimate burden of proof to show discrimination has occurred lies with the plaintiff.
Additionally, as argued in this case, plaintiff may meet her burden by using a mixed-motive analysis (see Allen v Domus Dev. Corp., 273 AD2d 891 [4th Dept 2000], citing Michaelis v State of New York, 258 AD2d 693, 694 [3d Dept 1999]; Tyler, 958 F2d 1176; see also Card v Sielaff, 154 Misc 2d 239 [Sup Ct, NY County 1992]; Morris, 2003 WL 1739009, *3, citing de la Cruz v New York City Human Resources Admin. Dept. of Social Servs., 82 F3d 16, 23 [2d Cir 1996]). In order to prove her case as a mixed motive case, plaintiff must present direct poof of discrimination, proving that an illegitimate factor had a motivating or substantial role in the employment decision (id.). a. Plaintiff's Prima Facie Case of Age Discrimination In order to establish a prima facie case of discrimination, plaintiff must show: (1) membership in a protected class; (2) qualification for the position held; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination (see Ferrante, 90 NY2d at 629) . Here, Edwards has met the first three elements of a prima facie case. She is a member of a protected class — she was fifty-six when she was fired. Second, there is no dispute that Edwards was qualified for the nursing assistant position, since she had been employed as a Nursing Assistant since 1975, and the main issue concerning her job performance is her excessive absenteeism, not her ability to perform the tasks required of the job (Sclair dep. at 182, 185 — 186). Third, she suffered an adverse employment action when she was terminated from her position at Jamaica Hospital.
The court points out that defendants improperly state plaintiff's position. Specifically, in their opposition, defendants assert that plaintiff's change in work assignments does not constitute an adverse employment action. (Reply Affirmation, pp. 3-5). While this may be true, plaintiff relies on the fact that she was terminated, which certainly is an adverse employment action sufficient to prove a prima facie case of age discrimination (Forrest, 3 NY3d at 306) .
Edwards has not however established that there are circumstances giving rise to an inference of discrimination. Plaintiff argues that the circumstances giving rise to an inference of discrimination are: (1) when she reduced her schedule from five to four days a week, over twenty years ago, defendants started floating her, replacing her with a younger person who did not like his or her assignment; and (2) after she had "a disagreement" with a patient, she was placed as a "floater" for a period of six months to a year. These allegations, even if true, are not sufficient to establish an inference of discrimination, as they are nothing more than conclusory assertions (see DuBois v Brookdale University Hosp. and Med. Ctr.,-AD3d-, 815 NYS2d 239 [2d Dept 2006] [employee's conclusory allegations that she was discriminated against based on her Trinidadian descent could not support her employment discrimination action]).
As such, plaintiff has failed to establish a prima facie case of age discrimination.
b. Defendants' Legitimate Business Reason
Even if the court were to find that Edwards established a prima facie case, summary judgment would still be warranted, because defendants proffered a legitimate business reason for terminating plaintiff sufficient to warrant summary judgment, i.e., that plaintiff had excessive absences, which she was repeatedly warned about, and, more importantly, that she had taken sick days from Jamaica Hospital only to work overtime somewhere else. Defendants have provided substantial evidence to support their legitimate business reason. Sclair testified that the reason that plaintiff was terminated was because she was calling in sick to Jamaica Hospital, only to work overtime at Flushing Hospital. The attendance records support Sclair's testimony (see Laub v St. Vincent's Med. Ctr., 306 AD2d 322, 323 [2d Dept 2003] [defendant demonstrated a valid nondiscriminatory reason for plaintiff's discharge where it submitted evidence showing, among other things, plaintiff had been given two written warnings regarding absenteeism]; Craig-Oriol v Mount Sinai Hosp., 201 AD2d 449 [2d Dept 1994] [no evidence of racial discrimination against employee where record fully supported employer's position that employee's work was unsatisfactory and that her absences were excessive]). Remarkably, plaintiff admits that this is the reason she was terminated and she does not deny that she worked at Flushing Hospital the same day she called in sick to Jamaica Hospital.
c. Pretext
Finally, Edwards failed to raise a triable issue of fact as to whether the defendants' stated reasons for her discharge was a pretext for discrimination (see Forrest, 3 NY3d at 307; Best v Peninsula New York Hotel Mgt. Inc., 309 AD2d 524 [1st Dept 2003]; Cooks v New York City Tr. Auth., 289 AD2d 278, 279 [2d Dept 2001]; Jordan v American Intl. Group, Inc., 283 AD2d 611 [2d Dept 2001]) . Edwards appears to be arguing a pattern and practice case concerning the impact defendants' sick leave policy had on older Nursing Assistants in support of her pretext argument. Specifically, she relies on (1) her own testimony concerning two incidents occurring ten to twenty years ago; and (2) Sclair's testimony that five or six other employees were also disciplined for violating Jamaica Hospital's sick leave policy, of which one or two employees, in their forties or fifties, were considered for dismissal.
First, Edwards's own testimony, even if true,
concerning two discrete incidents regarding other employees which occurred more than ten years ago, do not rise to the level of discriminatory conduct and are therefore insufficient to show pretext (see e.g. Mete v New York State Office of Mental Retardation and Dev. Disabilities, 21 AD3d 288, 294 [1st Dept 2005], citing Danzer v Norden Systems, Inc., 151 F3d 50, 56 [2d Cir 1998] ["[s]tray remarks, even if made by a decision maker, do not constitute sufficient evidence [to support] a case of employment discrimination"]; see also Campbell v Alliance Nat'l Inc., 107 F Supp 2d 234, 247 [SD NY 2000] ["[s]tray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of the decision"]). Moreover, Edwards's testimony is full of nothing more than conclusory assertions for which she has no basis or evidence in support.
Second, her reliance on Sclair's testimony concerning the other five or six employees as a basis for pretext is misguided. All that is shown from his testimony is that there were at least five employees who were reprimanded in some form or another as a result of excessive absenteeism, irrespective of their age. Notably, there is no assertion that these individuals called in sick to work at another job. In viewing the facts in a light most favorable to Edwards, she has failed to show that defendant's legitimate business reason is a pretext for discrimination.
Plaintiff also asserts that defendants failed to follow their progressive discipline policy, however, plaintiff's personnel documents clearly show that she was warned about her excessive absenteeism and that continued abuse could result in further disciplinary action up to and including termination (see Jamaica Hospital Nursing Home Job Description/Performance Evaluation dated 12/10/01; Jamaica Hospital Nursing Home Job Description/Performance Evaluation dated 5/3/99 at 4; Employee Conference Form dated 3/23/99; Employee Conference Form dated 5/4/95).
d. Mixed Motive Analysis
Since the court finds that there is no discriminatory motive present, the mixed-motive argument fails as a matter of law (see Allen, 273 AD2d 891 [4th Dept 2000] [plaintiff must first present sufficient evidence to support an inference of impermissible discriminationl, citing Michaelis, 258 AD2d at 694]; see also Scott v Citicorp Servs. Inc., 236 AD2d 227 [1st Dept] affd, 91 NY2d 823).
Accordingly, plaintiff has not produced sufficient evidence to avoid summary judgment as to her first and second causes of action.
2. Plaintiff's Retaliation Claim
With respect to the fifth and sixth causes of action of retaliation under the NYSHRL and NYCHRL, in order to establish a prima facie claim of retaliation "plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest, 3 NY3d at 313; Hernandez v Bankers Trust Co., 5 AD3d 146, 148 [1st Dept 2004]; Romney v New York City Tr. Auth., 8 AD3d 254 [2d Dept 2004]).
Edwards contends she engaged in a protected activity when she complained of discrimination to defendants at a meeting with her supervisors on January 7, 2002, and that she suffered an adverse employment action as a direct consequence of her protected activity. She further contends that there is a causal connection between her protected activity and her termination. Defendants argue that Edwards failed to engage in a protected activity since she raised the issue of age discrimination only after she was told that she was going to be terminated for attendance problems. While Edwards contends that she complained to defendants about their alleged discriminatory conduct before her employment was terminated, it is clear based on her own testimony that she understood she was being fired before she complained (see Edwards dep. at 49) .
"Where timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise" (Nieshlos v City of New York, 2003 WL 22480043 [SD NY 2003], citing Slattery v Swiss Reinsurance Am. Corp., 248 F3d 87, 95 [2d Cir 2001]; see also Hernandez, 5 AD3d at 147 [1st Dept 2004] [holding plaintiff failed to engage in a protected activity noting plaintiff complained after he was reprimanded for a terminable offense]). Moreover, "[m]erely pointing to the inference of causality resulting from the sequence in time of the events" is insufficient to avoid summary judgment (Forrest, 3 NY3d at 313-314, quoting Chojar v Levitt, 773 F Supp 645, 655 [SD NY 1991]; see also Kaptan v Danchig, 19 AD3d 456 [2d Dept 2005]). The causal connection needed for proof of a retaliation claim "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action" (Cifra v General Electric Co., 252 F3d 205, 217 [2d Cir 2001] [emphasis added] [internal citations omitted]; see also Forrest, 3 NY3d at 313 — 314; Concord Limousine, Inc. v Orezzoli, 7 Misc 3d 1026 (A) [Sup Ct, Kings County 2005]).
Here, Edwards admits that she did not complain of age discrimination at any time prior to the January 7, 2002 meeting. The record reflects that she had a history of excessive absences and had been repeatedly warned about them, which ultimately led to Sclair's discovery of her abuse of defendants' attendance policy. Moreover, Edwards admits that it was after she was told she was being terminated that she asked if the decision had been made because of her age. As such, she has failed to establish a prima facie case of retaliation under the NYSHRL and NYCHRL.
Even if the court were to find that the temporal proximity was established to satisfy a causal connection, Edwards's evidence of pretext is insufficient to permit an inference of discrimination sufficient to defeat summary judgment, as discussed above (see Roberts v Philip Morris Management Corp., 288 AD2d 166 [1st Dept 2001], citing Cifra, 252 F3d at 205; Scott, 91 NY2d 823 [other citations omitted]).
Accordingly, it hereby is
ORDERED that defendant's motion for summary judgment dismissing the complaint is granted and the complaint is dismissed with costs and disbursements to defendants, as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it further is
ORDERED that the Clerk is erected to enter judgment accordingly.