Farrugia v. North Shore Hosp.
| Citation | 2006 NY Slip Op 26344,820 N.Y.S.2d 718,13 Misc.3d 740 |
| Decision Date | 21 June 2006 |
| Docket Number | 102125/03 |
| Parties | THOMAS FARRUGIA, Plaintiff, v. NORTH SHORE UNIVERSITY HOSPITAL, Defendant. |
| Court | New York Supreme Court |
Farrell Fritz, P.C., Uniondale (Steven N. Davi of counsel), for defendant.
Luis Ginsberg, P.C., Roslyn (Thomas Ricotta of counsel), for plaintiff.
On February 6, 2003, plaintiff Thomas Farrugia, a white male lab technologist at North Shore University Hospital, filed a complaint alleging sexual harassment, sexual discrimination, and national origin discrimination under both the New York State and New York City Human Rights laws. The crux of his complaint is that he has been sexually harassed by a female lab technologist and that the hospital has refused to do anything about it. He also alleges that the majority of lab technologists and supervisors are Asian-Filipino and that they, with the hospital's consent, have discriminated against him because of his national origin. Given the three-year statute of limitations (CPLR 214 [2]; Executive Law § 297 [9]; Administrative Code of City of NY § 8-502 [d]), plaintiff's allegations are presented pre-and post-February 6, 2000.
Plaintiff was hired by defendant North Shore Hospital on January 11, 1993 as a lab technologist. According to plaintiff, in 1995 another lab technologist, Annabelle Joson, said to plaintiff on consecutive nights, "oh, you look like you just had sex." Plaintiff reported the first incident to Hydie Cheng, the lead technologist on the shift, right away and the second incident shortly thereafter. Cheng allegedly said that she would look into it and Joson never made that comment to him again. In 1996, Joson also allegedly pulled the elastic on her pants down and said "you should see what is underneath." Plaintiff did not report this incident to anyone. Also, in two separate incidents in 1996, Joson allegedly exposed her buttocks to plaintiff, and he complained to Cheng. In addition, in February 1996, plaintiff observed Joson rub her breast against another woman and then motioned to plaintiff as if to say, "we can have any man that we want."
In January 2000, plaintiff was transferred to the 4:00 P.M. to 12:00 A.M. shift. During this time, Joson allegedly commented on plaintiff's appearance, at times looking at him up and down, saying that he "looked good" and "you are such a good dresser." On one occasion she said, "Look, you have a receding forehead" and "what does it feel like to have a receding forehead." Plaintiff asked her to leave him alone, but she allegedly persisted and would call him "selfish and cold-hearted." She would also tell other workers that plaintiff did not like women. Joson would engage in conversation with her coworkers in a language that plaintiff did not understand, but his name would be referenced in the middle of the conversation. According to plaintiff, Joson would subject him to these comments three to four times a week. At one time, plaintiff told Joson that he had a medical condition with his veins in his scrotum, and she referred to him as a "broken arrow."
In addition to the alleged inappropriate comments by Joson being made three to four times a week, in late May or early June 2000 Joson rubbed plaintiff's waist with her arm as he was holding a blood sample in his hands, while she made a gesture as if she were holding his genitals. Plaintiff told her to get her hands off and allegedly reported the incident to Cheng, who told him that Joson simply had a crush on him.
During this time period, Joicie Garcia, another lab technologist, bent over and simulated a sex act when plaintiff asked her "what have you been up to[?]" Plaintiff did not report this incident.
On June 8, 2000, plaintiff was evaluated by Joyceann Musel-Winn, administrative director of the laboratory department. Although plaintiff's overall score was a 3 ("Meets Standards— that behavior which consistently meets the expected performance level with minimal errors") on a scale of 1 to 5 (32 categories), he received a total of six scores of "[n]eeds some improvement" and one "[d]oes not meet standard" for his inability to get along with his coworkers. He also received an "unsatisfactory" for attendance given his 20 absences and 31 instances of tardiness for the year. Musel-Winn nonetheless marked the "[r]etain employee in present position" recommendation.
According to Musel-Winn, plaintiff became upset about his low scores and stated that "[t]his is par for a lab with its staffing, with all the females in the lab" and that he had told her about it before. Musel-Winn responded that she did not recall having any conversations with him about the women in the lab, to which he stated, according to Musel-Winn, for the first time that he was "tired of the sexual harassment in the laboratory, all the innuendos that go on in the laboratory concerning" him because he was the only male on the evening shift. He also allegedly told her that According to Musel-Winn, plaintiff did not identify the person allegedly harassing him.
When Musel-Winn asked Cheng about plaintiff's allegations, Cheng denied that she had engaged in any inappropriate behavior and stated that she did everything possible to stay away from plaintiff because he was dangerous. In support of her concern, she stated that plaintiff brought a hammer and a knife to work in a bag and made a point of banging the bag on the tables in the lab when he was angry. In fact, plaintiff admitted that he started bringing a hammer and knife to work during a strike in 1996 because he feared for his life. Musel-Winn also spoke with other lab employees who denied any sexual harassment or that they saw anyone harass plaintiff.
Musel-Winn also stated that on June 15, 2000 plaintiff was visibly upset and pacing back and forth while muttering about Joson. He complained to Musel-Winn that Joson had on shorts underneath her lab coat. Musel-Winn looked into it and determined that Joson had on a skirt. She nonetheless asked both plaintiff and Joson to come into her office. When they came in, according to Musel-Winn, plaintiff for the first time alleged that he had been sexually harassed by Joson. Plaintiff told her that Joson tried to impress him by pulling down her underwear, made sexual remarks concerning his sexual organ, including remarking about the size of his penis, and stared at his crotch. At his deposition, however, plaintiff stated that he told Musel-Winn about Joson's conduct at the June 8 evaluation. (Plaintiff's deposition at 133.) When asked whether that was the first time that he complained about Joson's behavior, he stated "I believe I told her in the past as well." (Id.)
Joson denied plaintiff's allegations, and like Cheng, stated that she was afraid of plaintiff because he hit the lab walls with his fist when he was angry, carried a hammer in his bag, and banged his bag on the tables when he was angry so that it was obvious that he had a hammer in his bag. According to Musel-Winn, her investigation revealed that it was plaintiff who was interested in Joson. She also spoke with Joicie Garcia who denied plaintiff's allegation about her. Garcia told Musel-Winn that plaintiff was interested in Joson and had talked to Garcia about Joson's "pretty legs" and that he wanted to have sex with Joson.
On June 16, 2000, the day after plaintiff complained to Musel-Winn about Joson, plaintiff spilled a urine sample on Joson. According to Musel-Winn, the circumstances suggested that it was intentional and she reported the incident in a hospital safety committee meeting. About one month later, Garcia sent Musel-Winn a letter detailing plaintiff's sexually harassing behavior toward both she and Joson. Joson also reported to Musel-Winn that after Garcia had rebuffed plaintiff's sexual advances, he approached Joson and asked her whether Garcia was dating an "Indian doctor" and whether they "have big penises."
According to Musel-Winn, plaintiff had a history of behavioral and performance problems. He had been warned about his attendance problems in his 1994, 1996, 1998, and 2000 performance evaluations. Indeed, on December 30, 1999, he received a disciplinary warning because he failed to show up for his shift, called and said that he had overslept, and then never reported for duty that night. On February 14, 2000, he was disciplined for insubordination for "scratching out" his weekend shift from the schedule. Musel-Winn warned him that he could not alter hospital records and told him that she expected him to work on his assigned shifts. Despite the warning, he called in sick on the days he had scratched off.
He also, according to Musel-Winn, repeatedly failed to follow critical lab protocol. For instance, in 1999, he made four critical errors, including botching up a pregnancy test, filing a false negative, and after determining that the test was positive, failing to notify the emergency room that he changed the results. He had also been warned about not documenting critical value calls (test results that must be reported immediately) on July 22, 1999, August 8, 1999, March 10, 2000, and July 6, 2000.
On July 17 and August 3, 2000, plaintiff committed two "critical" errors in the lab by not following hospital protocol. As a result of his errors, he filed lab results which had not been properly verified and on which hospital staff could have relied in making treatment decisions. According to Musel-Winn, given plaintiff's past behavioral and performance issues, she decided to terminate him.
On November 14, 2000, plaintiff filed a complaint with the New York State Division of Human...
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