Costello v. N.Y. State Nurses Ass'n

• Decision Date: 25 April 2011
• Docket Number: No. 10 Civ. 3245(SAS).,10 Civ. 3245(SAS).
• Citation: 783 F.Supp.2d 656
• Parties: Maria COSTELLO, Plaintiff,v.NEW YORK STATE NURSES ASSOCIATION, Richard Drucker, and Susanne Calvello, Defendants.
• Court: U.S. District Court — Southern District of New York

783 F.Supp.2d 656

Maria COSTELLO, Plaintiff,

v.NEW YORK STATE NURSES ASSOCIATION, Richard Drucker, and Susanne Calvello, Defendants.

No. 10 Civ. 3245(SAS).

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

April 25, 2011.

Thomas Anthony Ricotta, Esq., Leeds Morelli & Brown, PC, Carle Place, NY, for Plaintiff.Margaret Laukin Watson, Esq., McElroy, Deutsch, Mulvaney & Carpenter, LLP, Morristown, NJ, Richard Scott Mills, Esq., McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.I. INTRODUCTION

Marie Costello brings suit against her former employer, the New York State Nurses Association (“NYSNA”), and her former supervisors, Richard Drucker and Susanne Calvello, in their individual capacities (collectively, “Defendants”). Costello alleges that defendants engaged in employment discrimination on the basis of her age, gender, race, and national origin; created a hostile work environment; and retaliated against her, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),¹ the New York State Human Rights Law (“NYSHRL”),² and the New York City Human Rights Law (“NYCHRL”).³ Costello also alleges that Drucker and Calvello aided, abetted, compelled, and/or incited the alleged discrimination in violation of the NYSHRL and the NYCHRL.⁴

Defendants move for summary judgment on the following grounds: (1) Costello cannot establish a prima facie case of discrimination or retaliation because she has not suffered an adverse employment action; (2) Costello cannot establish pretext; (3) Costello cannot establish a prima facie case of hostile work environment; (4) Costello's NYCHRL claim is barred for lack of subject matter jurisdiction; (5) Costello cannot show that defendants' allegedly unlawful conduct caused her economic harm and she has failed to mitigate her damages. For the reasons set forth below, defendants' motion for summary judgment is granted in full and this case is dismissed.

II. FACTS ⁵

Costello is a fifty-eight-year-old Hispanic woman of Puerto Rican descent.⁶ She resides on Long Island.⁷ NYSNA is a professional association for registered nurses and a union representing nurses. ⁸ Defendant Drucker was hired by NYSNA as the Associate Director of Organizing on January 7, 2008.⁹ Defendant Calvello was hired by NYSNA in October 2004 as a Nursing Representative, promoted to Associate Director in 2006, and then promoted to Senior Associate Director in December 2008. ¹⁰

A. Collective Bargaining Agreement

The terms of Costello's employment were governed in part by the Collective Bargaining Agreement (“CBA”) negotiated between NYSNA and UNITE HERE Local 19. ¹¹ Although the CBA expired on March 31, 2010, NYSNA voluntarily adopted and complied with identical policies pending renegotiation of the contract.¹²

The CBA provided that staff employees, a category that includes the two positions held by Costello, could be suspended or otherwise disciplined for just cause.¹³ The CBA described procedures for implementing discipline and employee rights in the disciplinary process.¹⁴ The CBA also provided procedures by which employees could file grievances.¹⁵

Under the CBA, field staff assignments and reassignments were to be based on consideration of the following eight factors: (1) member needs; (2) number of members; (3) geographic considerations and travel time; (4) current assignments; (5) employee workloads; (6) network affiliations; (7) type and number of facilities; and (8) contract expiration dates.¹⁶ In addition, under the CBA, the “[l]eadership [would] make every effort to provide advance notice to those employees affected by the assignments or reassignments to the extent feasible.” ¹⁷

Under the CBA, a “work at home” program was established by which “bargaining unit members perform work in their home that had previously been worked in a NYSNA office. Such Work at Home shall generally be one (1) day per week.” ¹⁸ The CBA specified that “[t]he Association and UNITE HERE recognize that all staff must be available to NYSNA management and to the members they serve as needed.” ¹⁹ The CBA further stated that “[m]anagement and UNITE HERE recognize that work at home staff are held to the same level of accountability and responsibility as other members of the bargaining unit.” ²⁰

The CBA also addressed leaves of absence for staff employees, stating that “[e]mployees with one or more years of service are eligible for the following leaves of absence: Sick Leave—up to 12 months .... Requests for all leaves of absence or extensions of such leaves may be granted at the sole discretion of the Chief Executive Officer, although such requests shall not be unreasonably denied.” ²¹ The CBA specified that “[i]f the employee [on leave] is unable to return to work within twelve months, his/her employment will be terminated.” ²²

B. Employment History

Costello began working for NYSNA as a Nursing Representative in April 1989. ²³ As such, she serviced NYSNA-unionized facilities by visiting members, attending labor management meetings, and filing grievances and arbitrations on behalf of members.²⁴ In 2005, Costello applied for, but did not receive, a promotion to Associate Director.²⁵ In 2006, Costello requested and was granted a transfer to the Organizing Department.²⁶ As an Organizer, she was responsible for recruiting new members into NYSNA.²⁷ Upon his hire in January 2008, Drucker became Costello's direct supervisor.²⁸

C. Initial Conflict with Drucker

Drucker and Costello experienced difficulty working together from the start, in part because Costello filed a grievance against Drucker one month after Drucker assumed responsibility as her supervisor.²⁹ The conflict arose out of a staff meeting that Drucker scheduled to take place on February 12, 2008, in NYSNA's Latham, New York office. Costello requested Drucker's permission to stay in a hotel at NYSNA's expense on the night prior to the meeting, February 11, 2008, because she would be traveling from her home on Long Island, a drive of approximately four hours under normal conditions. Drucker denied Costello's request after being informed by his supervisor, Barbara Conklin, that the decision whether to grant an overnight stay was within a manager's discretion. While driving home after the meeting, Costello left a voicemail message for Drucker in which she expressed her anger that she was still on the road in inclement weather, and asserted that he had caused her to risk her safety by denying her an overnight stay. Drucker later informed Costello that he considered her voicemail to be inappropriate.

Costello immediately filed a formal grievance (No. 84878) alleging that Drucker's decision not to permit an overnight stay was an “abuse of management” and a violation of NYSNA's “past practices.” ³⁰ At a hearing on the matter, Costello complained that she had been required to drive to the Latham office and was denied permission to expense an overnight stay after the meeting on February 12, although she had previously requested an overnight stay only for February 11.³¹ The hearing officer denied the grievance, finding that: (1) it was not a violation of the CBA to require Costello to drive to a meeting in Latham because the CBA specifically addressed the possibility that employees would be required to drive for long periods of time; (2) Costello had been encouraged by Drucker to travel with another employee or to take the train if she did not wish to drive; and (3) there was a longstanding practice of holding meetings in Latham without granting overnight stays for the night prior to the meeting.³² Although Costello did not allege at the time that the denial of the overnight stay was discriminatory, she now makes that claim based on her allegation that two co-workers, who were similarly situated but outside of her protected class(es), were granted overnight stays on the same occasion.³³ It is undisputed that those two Organizers—Lisa Ruiz and John O'Connor—had other meetings scheduled in the area immediately before and/or after the staff meeting, suggesting that they were not similarly situated to Costello on that occasion. However, Costello claims that the other meetings were cancelled due to inclement weather and that Drucker knew as much.³⁴

D. Additional Responsibilities and Further Conflict

When Lillian Graham–Cox, a Nursing Representative, took an unexpected leave of absence in May 2008, Costello temporarily assumed Graham–Cox's responsibilities in addition to her normal workload as an Organizer.³⁵ Costello was given this assignment, in part, because she was already working as an Organizer at Bronx–Lebanon Hospital, one of the two facilities within Graham–Cox's purview, which gave her greater knowledge of the facility than her colleagues. ³⁶ Costello alleges that this assignment was an intentional attempt to overload her with work so that she would be deficient in her job, in retaliation for her complaints, both formal and informal.³⁷ In response to Costello's protestations that her workload had become too great, the Jewish Home and Hospital, which had been included in Graham–Cox's assignment, was removed from Costello's responsibility.³⁸ During this period, Costello was supervised in her Organizer capacity by Drucker, and in her Nursing Representative capacity by Calvello.³⁹ Costello alleges that under this dual supervision she was overwhelmed with emails and phone calls from Drucker and Calvello.⁴⁰ Costello also alleges that Calvello purposely withheld a report that would have assisted her in her new responsibilities; however, there is simply no admissible evidence of any intentional withholding.⁴¹

On May 15, 2008, Costello filed a formal grievance alleging that she had been assigned to work on an internal organizing campaign in Buffalo, New York, in retaliation for filing grievance no. 84878.⁴² Defendants maintain that Costello was assigned to the Buffalo campaign because of her experience...