Hamilton v. Mount Sinai Hosp.

• Decision Date: 20 December 2007
• Docket Number: No. 04 Civ. 9068(LTS)(GWG).,04 Civ. 9068(LTS)(GWG).
• Citation: 528 F.Supp.2d 431
• Parties: Josif HAMILTON, Janina Frendak, and Raisa Tkach, Plaintiffs, v. MOUNT SINAI HOSPITAL, Defendant.
• Court: U.S. District Court — Southern District of New York

528 F.Supp.2d 431

Josif HAMILTON, Janina Frendak, and Raisa Tkach, Plaintiffs, v. MOUNT SINAI HOSPITAL, Defendant.

No. 04 Civ. 9068(LTS)(GWG).

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

December 20, 2007.

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Alan J. Harris, Alan J. Harris, P.C., Pleasantville, NY, for plaintiffs.

David Roger Marshall, Edwards Angell, L.L.P., New York, NY, for defendant.

ORDER ADOPTING REPORT & RECOMMENDATION

LAURA TAYLOR SWAIN, District Judge.

The Court has reviewed Magistrate Judge Gorenstein's November 21, 2007, Report and Recommendation (the "Report"), which recommends that Defendant's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, be granted. No objections to the. Report have been received.

In reviewing a report and recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. 636(b)(1)(C) (West 1993). "In a case such as this one, where no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Johnson v. New York University School of Education, No. 00 Civ. 8117, 2003 WL 21433443, at *1 (S.D.N.Y. June 16, 2003).

The Court has reviewed carefully Magistrate Judge Gorenstein's thorough Report and Recommendation and finds no clear error. The Court therefore adopts the Report in its entirety for the reasons stated therein. Accordingly, Defendant's motion for summary judgment is granted. The Clerk of Court is respectfully requested to enter judgment dismissing the complaint and close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Josif Hamilton, Janina Frendak, and Raisa Tkach, former lab technicians at Mount Sinai Hospital, bring this action pursuant to the Age Discrimination in Employment Act ("ADE A"), 42 U.S.C. §§ 621-634, to recover damages against Mount Sinai Hospital for termination of their employment in 2004. See Amended Complaint, filed Apr. 5, 2007 (Docket # 10). Mount Sinai contends that plaintiffs were fired because they violated a longstanding hospital policy against swiping the time cards of other employees. Plaintiffs contend that they were fired so that Mount Sinai could hire younger workers and that the reason put forward by Mount Sinai for their firing is pretextual. Mount Sinai Hospital has now moved for summary judgment. For the reasons that follow, Mount Sinai's motion for summary judgment should be granted.

I. BACKGROUND

A. Facts

Except as otherwise noted, the following facts are either uncontested or are taken in the light most favorable to plaintiffs.

In January 2004, the Mount Sinai Labor Relations Department received a tip that lab employees were swiping the time cards of other employees in violation of hospital policy. Counter-Statement Pursuant to Local Civil Rule 56.1, dated Apr. 27, 2007 (annexed as Ex. A to Declaration of Alan Harris, filed May 8, 2007 (Docket # 31) ("Harris Decl.")) ("P. 56.1 Stat."), ¶ 2. Mount Sinai security officers Carmen Fascia and Gilbert Diaz installed a camera to monitor employees swiping their time cards. P. 56.1 Stat. ¶ 3. The videotapes from the camera revealed that the plaintiffs—as well as 17 other Mount Sinai employees—had either swiped the time cards of other employees or had allowed other employees to swipe their time cards. P. 56.1 Stat. ¶¶ 8, 11-13. Diaz was able to identify the plaintiffs as swiping more than one time card on the video and, by comparing the time imprint on the video to the time card swipe log, as having allowed other employees to swipe the plaintiffs' time cards. P. 56.1 Stat. ¶¶ 5-7. The plaintiffs and the 17 other employees identified on the video violating the policy were fired. P. 56.1 Stat. ¶ 21; see Plaintiffs' Termination Notices (annexed as Exs. 8-10 to Defendant's Notice of Motion, filed June 24, 2005 (Docket # 11) ("Motion")). At the time of their terminations Hamilton and Tkach were both 64 years old, and Frendak was 59 years old. Declaration of Raisa Tkach, undated ("Tkach Decl.") (annexed as Ex. 1 to Declarations in Opposition to Defendant's Motion for Summary Judgment, filed May 8, 2007 (Docket # 33) ("P.Decl.")), ¶ 2; Declaration of Janina Frendak, undated ("Frendak Decl.") (annexed as Ex. 2 to P. Decl.), ¶ 2; Declaration of Josif Hamilton, undated ("Hamilton Decl.") (annexed as Ex. 3 to P. Decl.), ¶ 15.

Mount Sinai's "Rules of Conduct" list swiping the time card of another employee, or allowing another employee to swipe one's time card, as a "serious" violation that may result in "dismissal." P. 56.1 Stat. ¶ 1; see also Mount Sinai Medical Center Rules of Conduct, issued Nov. 1, 1970 (annexed as Ex. A to Declarations in Support of Defendant's Motion for Summary Judgment, filed July 29, 2005 (Docket # 15) ("D.Decl.")), No. 2. In 2002; Mount Sinai fired 20 other employees for violating the time card swipe policy. P. 56.1 Stat. ¶ 18.

While plaintiffs violated this policy, see Tkach, Frendak, and Hamilton Decls. ¶ 5, they never did so with the intention or result of defrauding Mount Sinai. Tkach and Frendak Decls. ¶¶ 10, 13; Hamilton Decl. ¶¶ 9-10. Rather, they only swiped time cards that were not their own as a courtesy to other employees who were in fact present at work. Id. This came about because, in order to maintain an accurate record of hours worked, lab employees are not allowed to swipe their time cards until 15 minutes prior to the start of their shifts. Tkach, Frendak, and Hamilton Decls. ¶ 8. Employees would often arrive early, however, to have breakfast with each other. Id. ¶ 6. The plaintiffs would swipe time cards for other employees, or would allow other employees to swipe the plaintiffs' time cards, so that only one person would have to get up from breakfast. Id. ¶ 9. Plaintiffs did not know it was wrong to swipe another employee's time card, were not familiar with the employee handbook where the policy was stated, and did not realize that just one violation of the policy could result in termination of their employment. Tkach and Frendak Decls. ¶ 14; Hamilton Decl. ¶ 12.

Additional facts relating to plaintiffs' claims—again, taken in the light most favorable to plaintiffs—are discussed in section III.B below.

B. Administrative Agency Filings

Following their terminations, all three plaintiffs filed grievances with the Mount Sinai Labor Relations Department, which were denied, see Plaintiffs' Grievance Forms, dated June 8, 2004 (annexed as Exs. 11-43 to Motion); Denials of Plaintiffs' Grievances, dated July 2, 2004 (annexed as Exs. 14-16 to Motion), and also filed charges of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), see Plaintiffs' EEOC, Charges, dated Jan. 10, 2005 (annexed as Exs. 19-21 to Motion).

The plaintiffs also each filed for unemployment payments with the New York State Department of Labor. See Decisions of New York Unemployment Insurance Appeal Board regarding Tkach and Frendak, dated Sept. 1, 2004 (annexed as Exs. K & L to Harris Decl.) ("Tkach and Frendak Labor Decisions"); Transcript of New York Department of Labor Unemployment Insurance Hearing for Hamilton, dated Nov. 16, 2004 (annexed as Ex. J to Harris Decl.) ("Hamilton Labor Tr."). Tkach and Frendak's applications were initially denied, and then granted on appeal to the Unemployment Insurance Appeal Board. The record does not indicate the status of Hamilton's claim.

II. APPLICABLE LAW

A. Summary Judgment Standard

Summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether a genuine issue of material fact exists, the evidence of the non-movant "is to be believed," and the court must draw all "justifiable" or "reasonable" inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); Brosseau v. Hctugen, 543 U.S. 194, 195 n. 2, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). "`All that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The nonmoving party, however, cannot defeat summary judgment by a factual argument based on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). The nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir.1996) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505).

Although the Second Circuit has noted that "an extra measure of caution" is needed in granting summary judgment in discrimination cases inasmuch as direct evidence of discriminatory intent is rare, a finding of summary...