Costello v. Francis Hosp.

• Decision Date: 16 April 2003
• Docket Number: No. 01-CV-759(DRH)(WDW).,01-CV-759(DRH)(WDW).
• Citation: 258 F.Supp.2d 144
• Parties: Marie COSTELLO, Plaintiff, v. ST. FRANCIS HOSPITAL, Defendant.
• Court: U.S. District Court — Eastern District of New York

258 F.Supp.2d 144

Marie COSTELLO, Plaintiff, v. ST. FRANCIS HOSPITAL, Defendant.

No. 01-CV-759(DRH)(WDW).

United States District Court, E.D. New York.

April 16, 2003.

Somma, Zabell & Associates, LLP, Farmingdale, By Saul D. Zabell, Esq., for Plaintiff.

Putney, Twombly, Hall & Hirson, LLP, New York, By Mark A. Hernandez, Esq., Of Counsel, for Defendant.

DECISION AND ORDER

HURLEY, District Judge.

Plaintiff filed this action against her former employer, alleging that she was unlawfully terminated based on her disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq., and the New York State Human Rights Law ("NYHRL"), Executive Law Section 296. Currently before the Court is Defendant's motion for summary judgment. For the reasons that follow, Defendant's motion is granted.

I. BACKGROUND

A. Undisputed Facts

The facts in this section of the opinion are taken from Plaintiffs complaint, deposition and answers to interrogatories; from the statements in the parties' Rule 56.1 statements, the accuracy of which has been admitted by the opposite party; and from evidence proffered by Defendant which is not controverted or otherwise inconsistent with the factual position advanced by Plaintiff.

Defendant St. Francis Hospital ("Hospital") is a not-for-profit hospital which specializes in cardiac care, and is a member of the Catholic Health Services of Long Island. Def.'s Local Rule 56.1 Statement ("56.1 Stmt.") ¶ 1. Plaintiff was hired by the Hospital in 1978 as a part-time employee. Id. ¶ 3. She was hired for the position of Switchboard Operator. Id. ¶ 6. In January 1979, Plaintiff began working for the Hospital on a full-time basis. Id. ¶ 7. She was promoted to Chief Operator during the 1980s, id. ¶ 8, to Telecommunications Supervisor in 1994, id. ¶ 17, and to Telecommunications Manager in February 1996. Id. ¶ 19.

Beginning in 1992, Plaintiff reported directly to Martin A. Bieber, Vice President/Chief Information Officer ("Bieber"). Id. ¶ 9. Plaintiff states that she also has had numerous other supervisors, including Anthony Vellucci ("Vellucci") and Joanne Casper ("Casper"), while employed by the Hospital. PL's Local Rule 56.1 Statement ("PL's 56.1 Stmt.") ¶ 11.

As Telecommunications manager, Plaintiff "considered herself a member of management." Def.'s 56.1 Stmt. ¶ 23. As a member of management, Plaintiff was aware that her responsibilities included implementing various Hospital polices. Id. ¶ 27. These policies included a No Solicitation/No Distribution Policy, an Open Door Policy, a Work Rules and Regulation Policy, a Weather Emergency Policy and a Sexual Harassment Policy.¹ See id. ¶¶ 28-41. Plaintiff admits that she was aware of these policies, that they pertained to her and that she was charged with enforcing them. Id. ¶¶ 25-43.²

Plaintiff's employment was terminated on February 10, 2000. PL's Dep. at 55; Aff. of Martin Bieber ("Bieber Aff.") ¶ 52. She was advised that the reasons given for her termination were theft of time, sexual harassment and solicitation. PL's Dep at 55-56.

With respect to Plaintiffs physical condition, she first started suffering from Primary Pulmonary Hypertension. Id. ¶ 47. One of the symptoms of this condition is shortness of breath. PL's 56.1 Stmt. ¶ 48. On several occasions, Plaintiffs condition caused her to be hospitalized. Def.'s 56.1 Stmt. ¶ 77. When this occurred, Plaintiff would perform her duties with a laptop that was installed by "her bedside." Dep. of Anthony Vellucci ("Vellucci Dep.") at 39. Plaintiff was also provided with a laptop computer to perform work at home. Dep. of Joanne Casper ("Casper Dep.") at 23.

Starting at the end of 1998 or the beginning of 1999, Defendant provided Plaintiff with oxygen to aid Plaintiff with her breathing. Def.'s 56.1 Stmt. ¶ 72. The oxygen was supplied free of charge. Id. ¶ 74. This service included delivering the oxygen tanks, setting up respiratory equipment and removing the used tanks. Id. ¶75.

B. Events Leading to Plaintiffs Termination

1. Preliminary Observations

Plaintiff maintains that each of the reasons provided by Defendant for her termination is merely a pretext for disability discrimination. Not surprisingly, therefore, she currently contests the bulk of Defendant's rendition of the pre-termination events. In doing so, however, she has, on certain pivotal issues, run afoul of the rule that "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affirmant's previous deposition testimony." Haynes v. New York City Dep't of Com., 84 F.3d 614, 619 (2d Cir.1996); see also Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987) ("It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.").

Here, Plaintiff has not submitted an affidavit. But in her Rule 56.1 statement she attempts to create a material issue of fact by disputing Defendant's contention that she was selling chocolate lollipops in the shape of a penis at the Hospital. See PL's Rule 56.1 Stmt. ¶¶ 87,90 ("Plaintiff never sold the chocolates in the form of a man's penis"), ¶ 91.³

During her deposition, however, Plaintiff testified as follows:

Q. Did you ever sell chocolates in the shape of a man's penis?

A. Yes.

PL's Dep. at 127.

Q. Miss Costello, I want to show you what the hospital has obtained and ask you if this is one of the chocolates that you were selling. It's in a zip lock bag, and I'd ask you not to remove it from the zip lock bag and also to handle it carefully. I ask you to look at that, please.

Is that one of the chocolates you were selling at the hospital?

A. That's one of the ones that Arthur Britton [sic] wanted, yes.

Q. What is that chocolate?

A. It's a penis with a tuxedo.

Q. Is it made of chocolate?

A. Yes.

Q. Is it a lollipop?

A. Yeah.

Id. at 130.

Similarly, in her verified responses to the Hospital's Interrogatory Requests, sworn to on November 27, 2001, Plaintiff provided the following sworn response to the Hospital's inquiry of her sale of chocolates shaped in the form of a penis:

Interrogatory No. 17: State whether at any time prior to your termination you possessed, stored or sold at the Hospital candy resembling the shape or form of a man's penis.

Response to Interrogatory No. 17: .... Plaintiff responds as follows: In 2000 the plaintiff did sell the described candy.

Plaintiffs Interr. Resp. No. 17. Finally, when questioned by Deirdre J. Duke, the Director of the Human Resources for the Hospital, regarding her sale of the chocolates, Plaintiff admitted that she was selling said chocolates. Aff. of Dierdre Duke ("Duke Aff.") at ¶ 15.

Similarly, in Paragraph 20 of her Rule 56.1 Statement, Plaintiff disputes that Bieber was the individual responsible for her promotion from the position of Telecommunications Supervisor to Telecommunications Manager in February 1996. Id. In support of this contention, Plaintiff cites page 29 of the transcript of her deposition testimony for the premise that other individuals, as well as Bieber, were responsible for that promotion. However, a review of the cited portion of the transcript reveals the following exchange:

Q. Do you know who was responsible for your promotion to the position of Telecommunication Manager?

A. Martin Bieber.

PL's Dep. at 29.

In addition to endeavoring to create a material issue of fact via unsupported assertions in her Rule 56.1 Statement, Plaintiff often answered questions during her deposition by stating "I don't recall" or "I don't remember." See, e.g., PL's Dep. at 148-150. Such responses, of course, are not to sufficient to counter Defendant's showing that it is entitled to judgment as a matter of law. Castillo Flores v. Harbor Shipping & Trading Co., S.A., 2001 WL 740509 (E.D.La., June 29 2001) (collecting cases); I.V. Servs. of Amer., Inc. v. Inn Dev. & Mgmt, 182 F.3d 51, 55 (1st Cir. 1999) ("[Plaintiffs] mere lack of recollection does not create an issue of fact....").

With the above preliminary observation in mind, the evidence in the record regarding specific events leading to Plaintiffs termination will now be discussed.

2. February 8, 2000

a. Meeting with Martin Bieber

Defendant states that on February 8, 2000, Bieber was notified by a Hospital security guard that Plaintiff was selling chocolates in the Hospital in the shape of a "penis dressed in a tuxedo." Bieber Aff. ¶ 25.

Bieber states that when he arrived at Plaintiffs office to discuss this claim, Bieber "observed several parcels (boxes and bags) of chocolate in a room adjacent to Costello's office." Id. ¶ 27. When Bieber entered the adjacent room, he noticed boxes containing chocolate. Id.; cf. Pl's Dep. at 120-21. At any given point, Plaintiff stored up to three boxes of chocolates in her office. Pl's Dep. at 124-26. He also observed that some of the bags contained "penis shaped lollipops." Bieber Aff. ¶ 27. Bieber took one of these lollipops as part of his investigation. Id.

When questioned about the chocolate, Plaintiff stated that she was "holding it for someone." Id. ¶ 28. Later in the conversation, she told Bieber that they belonged to her son, William, who was employed at the Hospital. Id. ¶ 29. Plaintiff, when asked about Hospital policy, stated that she was aware of the Hospital's No Solicitation Policy and that selling items such as chocolate would be a violation of that policy. Id. ¶ 28. She then reiterated that she was not selling the chocolates. Id. On this issue, however, Plaintiff has admitted, in response to Defendant's Rule 56.1 Statement, that she sold chocolates at the Hospital and that "she sold chocolates on numerous occasions, such as Christmas, Halloween, Easter and Valentine's Day." Pl's 56.1 Stmt. ¶ 80. As noted, she also has admitted that she sold chocolates in the shape of a man's penis in the hospital....