Opinion
Index No. 702508/2019 Mot Seq. No. 3
08-16-2023
LISA KEENEY, Plaintiff, v. NEW YORK-PRESBYTERIAN QUEENS, GREGORY CAMACHO, LORRAINE ORLANDO, ROBERT BLENDERMAN, NEW YORK-PRESBYTERIAN HOSPITAL and THE NEW YORK AND PRESBYTERIAN HOSPITAL d/b/a NEW YORK-PRESBYTERIAN QUEENS, Defendants.
Unpublished Opinion
The motion was submitted to Judge Gavrin on this date, who has since retired from the bench. Motion was reassigned to the undersigned on January 10, 2023.
Present: Honorable Anna Culley, Justice
ANNA CULLEY, JUDGE
The following numbered papers read on this motion by defendants New York-Presbyterian/Queens (s/h/a "New York-Presbyterian Queens" (the Hospital) and The New York and Presbyterian Hospital (s/h/a "New York-Presbyterian Hospital and The New York and Presbyterian Hospital d/b/a New York-Presbyterian/Queens"), Gregory Camacho (Camacho,, Lorraine Orlando (Orlando), and Robert Blenderman (Blenderman) (collectively, defendants) for summary judgment dismissing the complaint pursuant to CPLR 3212.
Papers Numbered
Notice of Motion - Affidavits - Exhibits.............................................
EF 59-77; EF 81-83
Answering Affidavits - Exhibits..........................................................
EF84-90
Reply Affidavits...................................................................................
EF 91-103
Upon the foregoing papers, it is ordered that the motion is determined as follows:
Plaintiff Lisa Keeney, an employee of the Hospital, commenced this action alleging causes of action sounding in employment discrimination, hostile work environment, and retaliation based on her gender, race, national origin and age under New York State Human Rights Law, Executive Law (NYSHRL) § 290 et seq. 296 and New York City Human Rights Law, Administrative Code of City of NY (NYCHRL) § 8-107. She further alleges that defendants aided and abetted unlawful discriminatory conduct in violation of these statutes.
Plaintiff began her career as a Licensed Practical Nurse (LPN) at Booth Memorial Hospital, which became New York Queens Hospital, which subsequently became New York-Presbyterian/Queens (the Hospital). In October 2016, she was promoted from a Registered Nurse (RN) in the operating room to an Assistant Nurse Manager (ANM). In her new ANM position plaintiff supervised daily operations in ten operating rooms, including the nurses and surgical techs working there, their performance evaluations, scheduling and so forth.
In 2017 the Hospital sought to improve patient care and satisfaction by increasing efficiencies and staff engagement and accountability in Perioperative Services. Employees in the department were required to improve performance in the Operating Room and Ambulatory Surgical Unit as to on-time surgical starts and reducing surgical procedure turnaround times. Department employees had to improve turnaround time for cleaning and preparing surgical rooms, ANMs had to increase their number of weekly shifts worked, and nurse leadership had to engage in morning huddles and make educational and management presentation.. The Hospital hired Camacho in December 2017 in connection with these improvements. Plaintiff reported to Camacho as her direct supervisor at the Hospital.
Although plaintiff initially had no problems with Camacho's management, during her deposition she described many operational changes he made to the department as "things that [wouldn't] work" because he didn't have experience in the operating room. More notably, she alleges that she became increasingly subjected to his discrimination and a hostile work environment as a woman over the age of 50. She cited repeated instances in which Camacho made discriminatory comments in front of her, for example, "that a nurse in the operating room after 50 years old should retire and let the younger generation take over." Such comment was allegedly made after an older nurse had an anxiety attack during a procedure and had to be medically assisted from the emergency room Plaintiff also alleges that Camacho would state in front of her that he did not "like women" and that she was "too emotional and a weak female" and "not a good leader." He would also say that plaintiff was "too old for this type of work and should retire or take it easy and do per diem work" She generally alleges that Camacho treated younger employees differently than older ones.
In March 2018, plaintiff and several other colleagues met as a group with Blenderman, the Hospital's Chief Operating Officer, to address their concerns with Camacho's management. During her deposition plaintiff stated that they reported Camacho's poor managerial skills that sometimes resulted in dangerous situations in their workplace. She could not recall whether anyone raised any discrimination claims during the meeting, except one colleague who raised a sexual harassment complaint. She testified that she did not make any discrimination complaint to Blenderman.
Plaintiff testified that in April 2018, Camacho asked her to remain after a manager meeting . in order to reprimand her for not attending a team building bowling event that took place after working hours. Plaintiff explained that she could not attend such events after work due to being an older parent with children, but Camacho said he was disappointed, that she was not engaged in her work, and that he could not trust her as a manager. She avers that he proceeded to harass and degrade her in front of other employees (that he had also asked to stay after the meeting) as retaliation for reporting his alleged discriminatory actions. Plaintiff also asserts that he retaliated against her by posting purported "inspirational" comments regarding what constituted "good leadership" shortly after the group meeting with Blenderman, and by stating to other employees that he intended to fire her.
In approximately May 2018, plaintiff individually contacted Orlando, the vice president of Human Resources, via the telephone to express her concerns with Camacho's leadership and specifically, about an incident involving a coworker over age 50, Ping Yee, who left her nursing position because she needed to care for her sick father, and Camacho had denied her request to work part time in order to do so. Camacho allegedly asked her if Ms. Yee was married because he felt that if she were not married, she would not leave. Camacho had subsequently granted that same accommodation to a younger employee, Stephanie Ramos, a surgical tech who had injured her knee, and was allowed to work answering phones part time instead.
In June 2018, plaintiff applied for a transfer to her current non-supervisory position at the Hospital as a clinical Documentation Specialist in the Quality Management Department, which Camacho approved.
On or about October 30, 2018, plaintiff received an email from Orlando to follow up on Camacho's management of the department due to multiple "hotline complaints" from employees to Human Resources. The next day, plaintiff replied that she was now working elsewhere in the hospital and had left her old position due to "upper management incompetency and bullying." She added that she had spoken to Orlando in the past about her concerns over Camacho's leadership, but it "fell on deaf ears" and she received no support from Human Resources or other superiors.
In or around January 2019, Camacho left his employment with the Hospital.
On a motion for summary judgment, the moving party has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 324 [1986]).
In an employment discrimination case, the court does not act as a "super-personnel department that reexamines an entity's business decisions" (Baldwin v Cablevision Sys. Corp., 65 A.D.3d 961, 966 [1st Dept 2009]). Thus, a plaintiff "must do more than challenge the employer's decision as contrary to sound business or economic policy" in order to give rise to an inference that an adverse action was due to discrimination (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 120 ).
In an employment discrimination action, the court must use a burden-shifting analysis similar to that used under federal law (see McDonnell Douglas Corp. v Green, 411 U.S. 792 [1973]). Once a plaintiff has established her or his prima facie case, the defendant employer must then come forth with evidence of a legitimate, nondiscriminatory reason for its employment actions (see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 316-317 [2004]; Langton v Warwick Val. Cent. School Dist., 144 A.D.3d 867, 869 [2d Dept 2016]; King v Brooklyn Sports Club, 305 A.D.2d 465 [2003]). The burden then shifts back to plaintiff to demonstrate by a preponderance of the evidence that the proffered reason is merely a pretext for discrimination (see Forrest, 3 N.Y.3d at 316-317; King, 305 A.D.2d 465). Thus, to prevail on a summary judgment motion alleging discrimination, a defendant must demonstrate either that the plaintiffs failure to establish every element of intentional discrimination or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual (see Forrest, 3 NY3d at 305; Lefort v Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708, 700 [2d Dept 2022]; Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999, 1001 [2d Dept 2021]).
To establish a prima facie case of discrimination under the NYSHRL, which mimics Title VII under federal law, the plaintiff must establish that he or she: (1) is a member ofa protected class; (2) is qualified for the position; (3) suffered an adverse employment action; and that (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination (Forrest, 3 N.Y.3d at 308; Gregorian v New York Life Ins. Co., 211 A.D.3d 711, 712 [2d Dept 2022]; Blackman v Metro. Tr. Auth., 206 A.D.3d 602, 603 [2d Dept 2022]). An adverse employment action requires a materially adverse change in the terms and conditions of employment (see Forrest, 3 NY3d at 306; Reichman v City of New York, 179 A.D.3d 1115, 1117 [2d Dept 2020]).
Under the lesser burden of the NYCHRL, a plaintiff need not establish that she or he was subjected to a "materially adverse" change for purposes of liability for discriminatory or retaliatory acts, but only that she or he was "subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic"(Golston Green v City of New York, 184 A.D.3d 24, 29 [2d Dept 2020]; Harrington v City of New York, 157 A.D.3d 582, 584 [1st Dept 2018]). Applying this lesser burden under a "mixed motive" analysis, the plaintiff must produce evidence that the unlawful discrimination was one of the factors, even if not the sole motivating one, for the employment decision (see Hamburg v New York Univ. School of Medicine, 155 A.D.3d 66, 73 [1st Dept 2017]; Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 127 [1st Dept 2012]). The NYCHRL thus prohibits unlawful discrimination from playing any role in an employment decision (Ellison v Chartis Claims, Inc., 178 A.D.3d 665, 668 [2d Dept 2019]). Stated another way, summary judgment dismissing a claim under the NYCHRL should only be granted if no jury could find that discrimination played a role in defendants' challenged actions (Blackman, 206 A.D.3d at 604).
In moving for summary judgment, defendants argue that plaintiff fails to establish that defendants discriminated against her in violation of the NYSHRL and NYCHRL because Camacho treated everyone similarly and the Hospital's operational changes applied to all employees in the Perioperative Services Department for legitimate, non-discriminatory reasons. They argue that plaintiff fails to show how Camacho's treatment of her was motivated by age discrimination, that her age was the but-for cause of any adverse actions against her, or that there was any material adverse change in her employment, much less due to her age. They further contend that plaintiffs challenge of the Hospital's decision to change operations cannot raise triable issues to defeat summary judgment. Additionally, defendants argue that plaintiffs retaliation claims should be dismissed because she did not engage in any activity protected under the NYSHRL or NYCHRL.
As a preliminary matter, plaintiff does not advocate, and no evidentiary grounds exist, for any claim based on plaintiffs race or national origin, and such claims shall be dismissed. Defendants do not dispute that plaintiff satisfies the first two elements of discrimination, to wit, that she is a member of a protected class due to her age, and that she was qualified for her position as ANM. However, the court notes that defendants have not eliminated all triable issues of fact with respect to whether plaintiffs gender serves as a protected characteristic forming the basis for her claims.
Upon a review of the record, the court finds that defendants fail to meet their summary judgment burden of eliminating all triable issues with respect to whether the alleged discriminatory conduct resulted in a "materially adverse change in the terms and conditions of employment" (Forrest, 3 N.Y.3d at 306; Bilitch, 194 A.D.3d at 1001). Although defendants assert that mere disagreement with Camacho's management style and the Hospital's business decisions are insufficient to defeat summary judgment, triable issues remain regarding whether Camacho was motivated by animus against women of a certain age, whether defendants had legitimate, nondiscriminatory reasons for their actions and whether such explanations were a pretext for discrimination (see Bilitch, 194 A.D.3d at 1002; Grella v St. Francis Hosp., 149 A.D.3d 1046, 1048 [2d Dept 2017]). Drawing all inferences in favor of the non-moving party, it cannot be said, as a matter of law, that defendants' conduct was not motivated by discrimination based on plaintiff's age and/or gender.
With respect to plaintiffs discrimination claims under the NYCHRL, it similarly cannot be said as a matter of law that defendants' conduct was not motivated, at least in part, by age- or gender-based discrimination (see Blackman v Metro. Tr. Auth., 206 A.D.3d 602 [2d Dept 2022]; Lefort v Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708 [2d Dept 2022]). Camacho's repeated disparate treatment of plaintiff, viewed in the context of how he treated other females over a certain age in the department less favorably than others, supports an inference that she was discriminated against, particularly because defendants have not made a prima facie showing "that there is no evidentiary route" by which a jury could find that discrimination played a role in their challenged actions (see Ellison, 178 A.D.3d at 668; Cenzon-Decarlo v Mount Sinai Hosp., 101 A.D.3d 924, 927 [2d Dept 2012]; Williams v New York City Hous. Auth, 61 A.D.3d 62, 79 [1st Dept 2009]).
Next, the court turns to plaintiffs cause of action alleging hostile work environment under the more liberal standard of the NYCHRL only. While the NYSHRL requires a plaintiff to establish that "the workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" (Forrest, 3 N.Y.3d at 310; Mitch, 194 A.D.3d at 1002), the NYCHRL requires only that a plaintiff demonstrate that she or he was treated less well than other employees due to the relevant characteristic (see Bilitch, 194 A.D.3d at 1003; Ellison, 178 A.D.3d at 669; Nelson v HSBC Bank USA, 87 A.D.3d 995, 999 [2d Dept 2011]). As the NYCHRL is not intended to operate as a "general civility code" (Williams, 61 A.D.3d at 79), to be actionable such conduct must amount to more than "petty slights or trivial inconvenience"" for purposes of establishing the underlying liability (Golston-Green, 184 A.D.3d at 42-43; Nelson, 87 A.D.3d at 999; Williams, 61 A.D.3d at 80). Where the alleged discriminatory conduct represents a borderline situation, the determination should be left to the trier of fact (Id., quoting Gallagher v Delaney, 139 F.3d 338, 342 [2d Cir]).
Here, considering all the circumstances and facts in the light most favorable to the non-movant, the court finds that triable issues remain as to whether a hostile work environment based on age- and/or gender-related harassment existed (see Bilitch, 194 A.D.3d at 1003). Although defendants argue that Camacho applied his operational changes and unpopular management style to all employees, plaintiffs evidence raises triable issues as to whether his repeated age- and gender-related comments and rebukes created an abusive environment that only pertained to certain employees in the department. These circumstances, such as the frequency of Camacho's alleged discriminating conduct, whether it was physically threatening or humiliating, and whether it unreasonably interfered with plaintiffs work, should be left for a jury to determine whether discriminatory intent was present.
Finally, to state a claim for retaliation under the NYSHRL, a plaintiff must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action (see Forrest, 3 N.Y.3d at 306; Shapiro v State, 217 A.D.3d 700 [2d Dept 2023]; Langton v Warwick Val. Cent. School Dist., 144 A.D.3d 867, 868 [2d Dept 2016]). Under the NYCHRL, no adverse employment action is required; a plaintiff need only show that the employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity (see Reichman v City of New York, 179 A.D.3d 1115, 1119 [2d Dept 2020]; Sanderson-Burgess v City of New York, 173 A.D.3d 1233, 1236 [2d Dept 2019]).
Here defendants argue that plaintiff was not engaged in any protected activity causally connected to their alleged discriminatory actions (see Shapiro, 217 A.D.3d 700; Langton, 144 A.D.3d at 868). In the first instance, defendants indicate that both plaintiff and Blenderman testified that neither plaintiff nor any other employee reported discrimination during the March 2018 group meeting regarding Camacho's leadership (except one colleague's claim of sexual harassment, which plaintiff confirmed was not held against her). Plaintiffs affidavit submitted on opposition contradicts her earlier testimony by stating that they in fact reported Camacho's discriminatory management practices during the March 2018 group meeting, and is insufficient on its own to raise a triable issue on summary judgment (see Lipsker v 650 Crown Equities, LLC, 81 A.D.3d 789, 790 [2d Dept 2011]).
However, insofar as plaintiff testified that in May 2018 she had an extensive phone call with Orlando to complain about Camacho's discrimination, and Orlando denies that plaintiff ever contacted her at all prior to their late October exchange via e-mail, triable issues remain which preclude summary judgment, including whether plaintiff engaged in protected activity to report unlawful discrimination and whether defendants were aware of such communication (see Bilitch, 194 A.D.3d at 1006; cf. Shapiro, 217 A.D.3d 700; Langton, 144 A.D.3d at 868).
Accordingly, defendants' motion for summary judgment is granted only to the extent of dismissing any claims based on plaintiffs race or national origin, but is denied in all other respects.
Movant is not relieved from the applicable provisions of CPLR 2220 and 202.5-b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.
The foregoing constitutes the decision and order of this court.