Pacheco v. New York Presbyterian Hosp.

• Decision Date: 09 January 2009
• Docket Number: Case No. 02-CV-9438 (KMK).
• Parties: Jose PACHECO, Plaintiff, v. NEW YORK PRESBYTERIAN HOSPITAL, Defendant.
• Court: U.S. District Court — Southern District of New York

593 F.Supp.2d 599

Jose PACHECO, Plaintiff, v. NEW YORK PRESBYTERIAN HOSPITAL, Defendant.

Case No. 02-CV-9438 (KMK).

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

January 9, 2009.

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Aaron David Frishberg, Esq., Stevens, Hinds, & White, P.C., New York, NY, for Plaintiff.

James Stuart Frank, Esq., David Ellis Prager, Esq., Sills Cummis Epstein & Gross, P.C., New York, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff, Jose Pacheco ("Plaintiff"), initiated this action on November 26, 2002, alleging that Defendant, New York Presbyterian Hospital ("Defendant" or the "Hospital"), discriminated against him and a class of Hispanic employees by maintaining an "English-only" policy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), 42 U.S.C. § 1981a, and New York State and New York City human rights laws ("NYSHRL" and "NYCHRL," respectively).

The Hospital now moves for summary judgment. For the reasons stated herein, the Hospital's motion is granted.

I. Background

In opposing this motion, Plaintiff has neither provided a counter-statement of material facts as required under Rule 56.1(b) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), nor contested any of the facts contained in Defendant's Rule 56.1 Statement. Although Rule 56.1(c) provides that uncontested material facts in the moving party's statement are to be deemed admitted, in order to rely on such statements the Second Circuit requires district courts to confirm that the statements are adequately supported by citations to evidence in the record and to disregard those which are unsupported. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (noting that district court may not rely solely on the movant's Rule 56.1 Statement but "must be satisfied that citation to evidence in the record supports the assertion"); Giannullo v. City of New York, 322 F.3d 139, 140-43 (2d Cir.2003) (finding that unsupported assertions in the defendant's Rule 56.1 Statement had to be disregarded and the record independently reviewed, even where the plaintiff had not controverted those assertions). Accordingly, unless otherwise noted, a review of the record, including Defendant's Rule 56.1 Statement, shows that the following facts are both undisputed and adequately supported.¹

Plaintiff, a United States citizen, was born and raised in Puerto Rico. (4th Am. Compl.("Compl.") ¶ 4.) Plaintiff identifies himself as Hispanic by national origin, and is fully bilingual in English and Spanish. (Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 11.) Plaintiff has worked for the Hospital since August 5, 1994. (Compl. ¶ 12.) In 2000, Plaintiff was employed as a Patient Representative in the Associates in Internal Medicine ("AIM") Clinic of the Hospital. (Def.'s 56.1 ¶ 2.) On approximately May 8, 2000, Plaintiff sought and obtained a transfer within the Hospital to the position of Patient Representative within the Ambulatory Referral Registration Area ("ARRA"), a unit of the Hospital's Patient Financial Services Department, the registration desks of which are located on the first floor of the Hospital. (Id. ¶ 2, 13.) Plaintiff's was a purely lateral transfer, without any change in pay, benefits, or bargaining unit seniority. (Id. ¶ 6.) When Plaintiff transferred to ARRA, he was subject to a probationary period, during which he was to be trained and closely supervised. (Id. ¶ 19.)

While Plaintiff worked in the ARRA unit (between May 8 and July 24, 2000), he was directly supervised by Mohammed Hack, and also worked under the supervision of Patricia Votta, Manager of Patient Financial Services, Outpatient Registration. (Aff. of Patricia Votta ("Votta Aff.") ¶¶ 1, 5, 11.) Neither Hack nor Votta speaks Spanish. (Id. ¶ 11.) During the period that Plaintiff worked in the ARRA unit, several patients complained to Votta that they believed they were being talked about or ridiculed by ARRA employees who were speaking about them in a language other than English and were laughing at them. (Votta Aff. ¶ 8.) Plaintiff was warned by Votta on three occasions, that while he was in the vicinity of patients at the ARRA, he was to refrain from speaking in a language other than English in the course of performing his responsibilities. (Def.'s 56.1 ¶¶ 8, 12.) The exception to this request was that Plaintiff was instructed (without objection) on multiple occasions by Votta and other supervisors, that he could, and should assist Spanish-speaking patients by talking to them in Spanish. (Dep. of Jose Pacheco ("Pacheco Dep.") 262.) Moreover, in the approximately ten weeks Plaintiff worked in the ARRA unit, he was never prohibited from speaking Spanish while not on-duty. (Id. 175.) Over half the employees and one supervisor in the ARRA unit are of Hispanic descent. (Def.'s 56.1 ¶ 37; Pacheco Dep. 66.) There is no evidence that any other ARRA employee complained about Votta or any other supervisor limiting their ability to speak Spanish while performing their jobs. (Def.'s 56.1 ¶ 38.) Further, Plaintiff acknowledges that no disparaging remarks were directed at his national origin by any Hospital representative while he was employed in the ARRA unit. (Def.'s 56.1 ¶ 7; Pacheco Dep. 152-53.)

Plaintiff objected to Votta about her request that he speak only English while performing his job duties, and he alleges that in response to his complaint, Votta retaliated against him by varying his job duties and assignments. (Compl. ¶ 21.) In particular, Plaintiff claims that when he began working in the ARRA unit, his hours were 8:00 a.m. to 4:00 p.m. and that a week after he questioned Votta's request to speak English, Votta changed his hours to 8:30 a.m. to 4:30 p.m. (Id. ¶¶ 22-23.) The next week, Plaintiff claims, Votta again changed Plaintiff's hours to 9:30 a.m. to 5:30 p.m. (Id. ¶ 24.) Plaintiff alleges that the changes to his schedule disrupted his home life by interfering with his ability to fulfill his parental responsibilities. (Id. ¶ 26.) Plaintiff further alleges that during this time period, Votta retaliated against him by telling him that she intended to assign him to weekend work, although there is no evidence that Plaintiff ever was assigned to work on weekends. (Id. ¶ 25; Def.'s 56.1 ¶ 32.) Finally, Plaintiff alleges that Votta retaliated against him by assigning him a task requiring over two and a half-hours to complete, only fifteen minutes before he was scheduled to leave for the day, and that Votta unfavorably compared his productivity to that of a more senior co-worker. (Compl. ¶¶ 28-29.)

During the period Plaintiff was employed in the ARRA unit, he never received a written warning, suspension, negative written evaluation, demotion, or written disciplinary action. (Def.'s 56.1 ¶ 9.) Plaintiff's job description in the ARRA unit detailed that his position required flexible days and hours. (Id. ¶ 29.) In fact, the ARRA was open and staffed seven days a week, and ARRA employees were expected to work variable hours and weekends. (Id. ¶¶ 30-31; Votta Aff. ¶¶ 12-13.)

On approximately June 9, 2000, one month after transferring to the ARRA unit, Plaintiff made an oral complaint to Gregory Rivera, a Hospital Human Resources employee, about Votta's request that he speak only English while working. (Compl. ¶ 33.) Rivera assured Plaintiff that the Hospital did not have an English-only policy. (Id. ¶ 34.) Approximately one week later, Plaintiff again complained to Rivera about Votta's request that he speak only English while performing his job responsibilities, and was told by Rivera to make a written complaint to the Hospital's Human Resources Department. (Id. ¶ 35.) Plaintiff submitted a written complaint to the Hospital's Human Resources Department on June 23, 2000. (Id. ¶ 36.) Approximately one week later, Jeanette Hicks, Director of the Hospital's Human Resources Department, met with Plaintiff to discuss his complaint. (Id. ¶ 37.) According to Plaintiff, Hicks took no action in response to his complaint following this meeting. (Id.)

On approximately July 24, 2000, before Plaintiff completed his probationary period in the ARRA, Plaintiff applied for, and was granted, a transfer back to his prior position in the AIM clinic where he received the same salary, benefits, and bargaining unit seniority that he had in the ARRA unit. (Def.'s 56.1 ¶¶ 3, 6.) Plaintiff alleges that he was compelled to request this voluntary transfer in order to avoid having Votta ultimately reject his permanent transfer to the ARRA unit, although the record is devoid of any evidence supporting this concern. (Compl. ¶ 39.)

Plaintiff alleges that his transfer back to the AIM clinic was detrimental to his candidacy for positions in other Hospital departments, and that he was further hampered in winning promotions because he lacked the experience he would have received in the ARRA unit. (Compl. ¶¶ 41-42.) Plaintiff does not specify which promotions he was denied, the reasons for the denial of any such promotions, or the qualifications of those who received the unspecified promotions. In any event, it is undisputed that approximately three months after transferring back to his position in the AIM clinic, Plaintiff applied for, and received a promotion with a salary raise of seventeen percent. (Def.'s 56.1 ¶ 23.) Subsequently, Plaintiff received a second promotion, and as of September 2004, earned close to double what he earned while he was at the ARRA unit. (Def.'s 56.1 ¶ 24.)

II. Discussion

A. Summary Judgment Standard

Summary judgment may be granted when it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."...