Fayson v. Kaleida Health Incorporated, 00-CV-0860E(Sr) (W.D.N.Y. 9/18/2002)

• Decision Date: 18 September 2002
• Docket Number: 00-CV-0860E(Sr).
• Parties: DEBORAH FAYSON, Plaintiff, v. KALEIDA HEALTH, INCORPORATED and DAVID CROSTON, Director of Clinical Engineering of Kalieda Health, Individually, Defendants.
• Court: U.S. District Court — Western District of New York

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DEBORAH FAYSON, Plaintiff, v. KALEIDA HEALTH, INCORPORATED and DAVID CROSTON, Director of Clinical Engineering of Kalieda Health, Individually, Defendants.

00-CV-0860E(Sr).

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

September 18, 2002.

MEMORANDUM and ORDER¹

JOHN T. ELFVIN, Senior District Judge.

Fayson, an African American female, commenced this action October 4, 2000 alleging, inter alia, violations of (a) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), (b) the Civil Rights Act of 1991, 42 U.S.C. § 1981a, (c) the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq. and 28 U.S.C. § 1343(4) (the "EPA"), (d) the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("HRL") and (e) New York's Labor Law § 194 ("Section 194") in that she had suffered discrimination because of her gender and her race. She filed an Amended Complaint December 5, 2001 adding retaliation claims. On June 17, 2002 she moved for preliminary injunctive relief pursuant to the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), 216(b) and 217. Specifically, she seeks, inter alia, an award of back-pay and a promotion to Physiological Equipment Specialist. Defendants cross-moved July 12, 2002 to strike two letters written by Kaleida's Senior Employee Relations Specialist Vicky Loretto, on the grounds that such are inadmissible as offers of settlement. On July 22, 2002 defendants moved for summary judgment of dismissal. For the reasons stated herein, defendant's motion for summary judgment will be granted and plaintiff's motion for preliminary injunctive relief and defendant's motion to exclude evidence will be denied as moot.

Fayson is a Senior Biomedical Equipment Technician ("Sr. BMET") employed by Kaleida. Previously, Fayson was employed in a similar capacity by Millard Fillmore Hospital ("MFH") — before MFH merged with Buffalo General Hospital ("BGH") and Children's Hospital of Buffalo ("CHOB") into Kaleida in 1998. Defendant Croston is the director of Clinical Engineering for Kaleida and, as such, he is above Fayson on Kaleida's organizational chart — although he is not her direct supervisor.

MFH's pre-merger structure included the positions of Biomedical Equipment Repair Person ("BMER") and Biomedical Equipment Technician ("BMET"), the occupants of both of which tested and maintained medical equipment. BMET's were superior to BMER's. BMET's were further divided into six sub-levels according to skill — i.e., BMET 0 through BMET 5, the latter being the highest of the sub-levels. Consequently, the higher-level BMET's were paid more than were lower-level BMET's. Immediately prior to the merger, Fayson was a BMET 1 at MFH.²

Croston had been the Director of Clinical Engineering at BGH and he retained that position at Kaleida. Kaleida's Clinical Engineering Department is part of its Information Systems and Technology Department ("IST"). Croston does not have final decision making authority with respect to employment decisions such as pay raises or promotions, although he does make recommendations with respect to such. The vice-president of IST had the authority for making employment decisions within IST.

Inasmuch as MFH, BGH and CHOB each had had its own classifications for Biomed employees,³ Kaleida had to integrate its Biomed positions post-merger. Croston was responsible for this task. Although MFH, BGH and CHOB used their pre-merger classifications and pay-scales for some period of time after the merger, the Biomed positions were ultimately changed to BMET, Sr. BMET and various specialist positions. Croston suggested a new classification scheme whereby employees received new positions based on their previous positions. Accordingly, BMET A's (BGH) and BMET 2's through BMET 5's (MFH) would be offered a position as either a Sr. BMET or as a specialist; BMET B's and C's (BGH) and BMER's and BMET 0's and 1's (MFH) would be offered BMET positions. The vice-president of IST accepted Croston's suggested structure. Kaleida established pay ranges based on skills and job performance for each of the renamed positions.

Following Kaleida's restructuring, Fayson — formerly a BMET 1 at MFH was offered a BMET position with an increased rate of pay of $17.95 per hour. All other BMET positions offered to white males were for the same rate of pay. Fayson refused the BMET position and requested a promotion to Sr. BMET. Fayson was promoted to an entry level Sr. BMET position at a rate of pay of $19.49 per hour ($38,000 per year), which was 8.6% higher than the increased salary that she was offered with the restructured BMET position in May 1999.⁴ Others — i.e., white male Sr. BMET's — were paid $43,000 per year, although each of these Sr. BMET's had held higher positions than Fayson in their respective pre-merger hospitals.⁵

In May 1999 Fayson bid on a position as a Physiological Therapy Equipment Specialist. She and several white male applicants were rejected, but the position was filled by a further applicant — a white male named Jeff Ward in September 1999.

Fayson was offered a promotion as a Physiological Equipment Specialist in January 2001 ("January 2001 Promotion Offer") that would have increased her pay to $23.08 per hour ($45,000 per year) — which would have represented a 16.1% increase in her pay.⁶ Fayson, however, refused the promotion.⁷ Fayson's salary increase under the January 2001 Offer, however, would have been staggered, ostensibly in accordance with a Kaleida policy that required such where an employee's raise is more than 10-12% of their existing salary. Several white males have had their salaries staggered following a promotion under this policy.⁸ In each case — including Fayson's ___, the second increment of the increase was conditioned upon a "better than satisfactory" evaluation. Notably, Fayson's January 2001 Promotion Offer was not contingent upon her dropping her lawsuit.

Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).⁹

With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248.¹⁰ Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.

Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255).¹¹ Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.¹² Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars ***." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).

Inasmuch as plaintiff conceded at oral argument and in her brief that she can state no claim with respect to the following claims: 42 U.S.C. § 1983, negligence and intentional infliction of emotional distress, such will be dismissed with prejudice.

Turning to the merits of defendants' motion with respect to Fayson's claims concerning her January 2001 Promotion Offer, such will not be dismissed on administrative exhaustion grounds. Although Fayson did not exhaust her administrative remedies by either amending the charge that she filed with the Equal Employment Opportunity Commission ("EEOC") on March 16, 2000 or by filing a new EEOC charge, such claim may be "reasonably related" to Fayson's filed EEOC charge. See Holtz, at 82-85. Inasmuch as defendants fail to address whether Fayson's claims with respect to her January 2001 Promotion Offer are reasonably related to the claims made in her EEOC charge, defendants fail to demonstrate that they are entitled to judgment as a matter of law on this ground.

Fayson's Title VII claims are barred as untimely to the extent that they relate to conduct that occurred before May 22, 1999 — i.e., more than 300 days before she filed her EEOC charge on March 16, 2000. See 42 U.S.C. § 2000e5(e)(1); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). Fayson's assertion that defendants' alleged discrimination amounts to a "continuing violation" is unavailing. See Gross v. Nat'l Broadcasting Co., No. 00 Civ. 5776(SAS), 2002 WL 1482621, at *7 (S.D.N.Y. July 10, 2002) ("The holding in [Nat'l R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S.Ct. 2061, 2072 (2002)], is in accord with Second Circuit law which states that alleged failures to compensate adequately, transfers, job assignments and promotions cannot form...