Cousar v. N.Y.-Presbyterian/Queens

• Decision Date: 26 August 2019
• Docket Number: 16-CV-1784 (MKB)
• Parties: PECOLA COUSAR, Plaintiff, v. NEW YORK-PRESBYTERIAN/QUEENS, Defendant.
• Court: U.S. District Court — Eastern District of New York

PECOLA COUSAR, Plaintiff, v. NEW YORK-PRESBYTERIAN/QUEENS, Defendant.

16-CV-1784 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 26, 2019

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Pecola Cousar, proceeding pro se, commenced the above-captioned action on April 13, 2016, against Defendant New York-Presbyterian/Queens, (Compl., Docket Entry No. 1), and on January 26, 2018, filed an Amended Complaint, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), (Am. Compl., Docket Entry No. 42). Plaintiff asserts claims pursuant to (1) Title VII for race and color discrimination, retaliation, and hostile work environment, (2) the ADA for denial of a reasonable accommodation and discrimination, and (3) NYSHRL for discrimination and retaliation. (Id.)

Currently before the Court is Defendant's motion for summary judgment as to all claims, (Def. Mot. for Summ. J. ("Def. Mot."), Docket Entry No. 81; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 87), and Plaintiff's cross-motion for summary judgment, (Pl. Aff. Request for Summ. J. ("Pl. Request"), Docket Entry No. 59; Pl. Aff. in Resp. to Def. Mot. ("Pl. Resp."), Docket Entry No. 92; Pl. Mem. of Law in Supp. of Pl. Response ("Pl. Mem."), Docket Entry No. 95).¹ Plaintiff also moves for leave to file a second amended complaint; Defendant opposes this request. (Pl. Mot. for Leave to File Second Am. Compl. ("Pl. Mot. for Leave"), Docket Entry No. 77; Def. Mem. in Opp'n to Pl. Mot. for Leave ("Def. Opp'n"), Docket Entry No. 78.) For the reasons set forth below, the Court grants Defendant's motion and denies Plaintiff's cross-motion. The Court also denies Plaintiff's motion to amend the Amended Complaint.

I. Background

Plaintiff is a black African-American woman.² (Pl. Aff. of Fact-Status, Docket Entry No. 51.) Defendant is a not-for-profit hospital that provides inpatient, ambulatory, and preventative care. (Def. Statement of Material Facts Pursuant to Local Rule 56.1 ("Def. 56.1") ¶ 2, Docket Entry No. 97.)

a. Plaintiff's employment

On April 11, 2011, Donna Arzberger, Defendant's Director of Perioperative Services and Nurse Manager, hired Plaintiff as an Operating Room Technician ("ORT"). (Id. ¶¶ 3-4.) Plaintiff's application for employment specified that her employment was at-will. (Id. ¶ 6; Employment Appl., annexed to Decl. of Brian G. Cesaratto ("Cesaratto Decl.") as Ex. C 5, Docket Entry No. 86-3.) ORTs serve as support staff during surgical procedures conducted in operating rooms. (Def. 56.1 ¶ 8.) ORTs are responsible for timely reporting to their assignedoperating room, preparing surgical instruments and supplies needed for the surgery, and providing those tools and supplies to the surgeon during procedures. (Id. ¶ 9; Position Description, annexed to Cesaratto Decl. as Ex. D, Docket Entry No. 86-4.) ORTs are required to "[m]aintain[] an acceptable record of attendance" and "[m]aintain[] a consistent record of punctuality." (Def. 56.1 ¶ 11; Position Description.)

Plaintiff regularly alternated overnight shifts with another ORT, Megan Sedita. (Dep. Tr. of Pecola Cousar ("Cousar Dep."), annexed to Cesaratto Decl. 212:20-23, Docket Entry No. 86.) Plaintiff testified at her deposition that her shift ended at 7:00 AM,³ (Cousar Dep. 212:2-6), but Defendant contends that Plaintiff was regularly assigned to work four days per week, beginning at 9:00 PM and ending at either 7:00 AM or 7:15 AM, depending on the shift, (Def. 56.1 ¶ 15; Aff. of Lorraine Orlando ("Orlando Aff.") ¶ 10, Docket Entry No. 83). Defendant maintains that it scheduled Plaintiff and Sedita "to work the extra fifteen (15) minutes in two (2) shifts each work week so that they were scheduled for 40.5 hours, and actually worked 37.5 hours after receiving a 45-minute lunch break each shift." (Def. 56.1 ¶ 16; Orlando Aff. ¶ 10.)

Defendant has an "automated time keeping system," which required Plaintiff to "punch in and out of scheduled shift times" by using her fingerprint to verify her identity. (Def. 56.1 ¶¶ 18-20; Cousar Dep. 169:6-16; Orlando Aff. ¶ 11.)

i. Defendant's attendance policies

Defendant's vacation policy allows for seniority preference in determining "time off." Defendant hired Sedita in August of 1998 and hired Plaintiff in April of 2011, and, as a result,Sedita received preference for time off due to her seniority. (Def. 56.1 ¶ 24; Cousar Dep. 66:17-25; Orlando Aff. ¶ 37.)

Defendant's Attendance and Punctuality Policy and Sick Leave Policy allow for discipline of employees who exhibit time and attendance issues. (Def. 56.1 ¶ 22.) The Attendance and Punctuality Policy states that "a reasonable amount of absence or lateness due to bona fide personal illness, family member illness or emergency situations is to expected in any work force. However, use of these benefits must be reasonable, and habitual or excessive absence or lateness may be cause for corrective action, up to and including discharge." (Def. 56.1 ¶ 26; Orlando Aff. ¶ 12; Attendance and Punctuality Policy, annexed to Cesaratto Decl. as Ex. F, Docket Entry No. 86-6.)

The Attendance and Punctuality Policy describes excessive absenteeism as:

(i) two (2) separate occurrences of absences within the same month for two (2) consecutive months; (ii) one (1) or more separate occurrences of absence per month within a three (3) consecutive month period; (iii) four (4) or more separate occurrences of absence in any ninety (90) day period; (iv) separate occurrences of absences that total twelve (12) per rolling twelve (12) month period; or (v) any patterned occurrences of absences which are similar and/or repetitive such as the same day each week, days taken prior to or after regular days off, holidays, vacations, paydays, scheduled days off, or on weekends and holidays when the employee is scheduled to work.

(Def 56.1 ¶ 28; Orlando Aff. ¶ 13; Attendance and Punctuality Policy.)

In addition, Defendant's Sick Leave Policy provides that "[i]f an employee is absent for three sick leave occurrences (excluding disability and workers' compensation) he/she should be counseled regarding the medical center's attendance standard of a maximum of three occurrences in any given appraisal period (12 months). An employee's failure to comply with this standard may result in disciplinary action for excessive absenteeism." (Def. 56.1 ¶ 32; Orlando Aff. ¶ 14; Sick Leave Policy, annexed to Cesaratto Decl. as Ex. G, Docket Entry No. 86-7.)

The Attendance and Punctuality Policy defines "[e]xcessively late" as "(i) two (2) occurrences of lateness within the same month; (ii) four (4) occurrences of lateness within a two (2) consecutive month period; or (iii) six (6) occurrences of lateness within a three (3) consecutive month period." (Def. 56.1 ¶ 30; Orlando Aff. ¶ 13; Attendance and Punctuality Policy.) An employee who is excessively absent or excessively late "may be subject to corrective action including but not limited to discharge." (Def. 56.1 ¶¶ 28-30; Orlando Aff. ¶ 13; Attendance and Punctuality Policy.)

In order to use sick leave due to an unforeseen illness or injury, employees must notify their department head or supervisor "at least one (1) hour prior to the beginning of their scheduled shift." (Def. 56.1 ¶ 34; Orlando Aff. ¶ 14; Sick Leave Policy.) An employee is subject to loss of pay or disciplinary measures if an employee fails to notify the department head or supervisor of an absence before the scheduled shift. (Def. 56.1 ¶ 36; Orlando Aff. ¶ 14; Sick Leave Policy.) Plaintiff admits that she was aware of Defendant's Sick Leave Policy. (Def. 56.1 ¶ 33; Cousar Dep. 164:14-25; Sick Leave Policy.)

ii. Plaintiff's attendance and disciplinary record

In 2012, Plaintiff was counseled for excessive sick time because she was absent from work on seven occasions within a six-month period. (Def. 56.1 ¶ 37; Cousar Dep. 160:11-22; 164:4-25; Orlando Aff. ¶ 16; R. of Counseling/Discussion, annexed to Cesarratto Decl. as Ex. H, Docket Entry No. 86-8.) Arzberger told Plaintiff to "[w]atch her sick time" because of the Defendant's Sick Leave Policy. (Cousar Dep. 164:4-25.)

In June of 2013, Plaintiff called her Charge Nurse an "idiot," which resulted in a two-day suspension for insubordination. (Def. 56.1 ¶¶ 39-41; Orlando Aff. ¶ 16; June 2013 R. of Incident and Corrective Action, annexed to Cesarratto Decl. as Ex. I, Docket Entry No. 86-9.)The suspension was later reduced to verbal counseling. (Def. 56.1 ¶ 41; Cousar Dep. 105:25-106:5, 172:11-19; June 2013 R. of Incident and Correction Action; June 2013 R. of Offense and Warning, annexed to Cesarratto Decl. as Ex. J, Docket Entry No. 86-10.)

On March 27, 2014, Plaintiff did not advise her manager that Defendant's Workforce and Health and Safety Department had cleared her to return to work on March 28, 2014, (Def. 56.1 ¶ 42; Orlando Aff. ¶ 18; Mar. 2014 R. of Counseling/Discussion, annexed to Cesaratto Decl. as Ex. K, Docket Entry No. 86-11), and, as a result, Defendant arranged coverage for Plaintiff's March 28, 2014 shift and, on April 2, 2014, issued Plaintiff verbal counseling due to her absence. (Def. 56.1 ¶¶ 43-44; Orlando Aff. ¶ 18; Mar. 2014 R. of Counseling/Discussion.)

On April 19, 2014, Plaintiff was absent from her shift because she was sick. (Def. 56.1 ¶ 45; Orlando Aff. ¶ 19; Employee Work Schedule, annexed to Cesaratto Decl. as Ex. X, Docket Entry No. 86-24.) On April 20, 2014, Plaintiff was again absent from her shift and did not notify her department in advance that she would not be working that day. (Def. 56.1 ¶ 46; Cousar Dep. 237:10-238:5; Orlando Aff. ¶ 19; Employee Work Schedule; see also Sick Leave Policy.) Plaintiff received a "Record of Incident and Correction Action" and a one-day suspension for the "no call/no show" on April...