Shandrew v. Quest Diagnostics Inc., 08–CV–00760S.
| Decision Date | 03 May 2011 |
| Docket Number | No. 08–CV–00760S.,08–CV–00760S. |
| Citation | 43 NDLR P 42,24 A.D. Cases 937,819 F.Supp.2d 181 |
| Parties | Donna SHANDREW, Plaintiff, v. QUEST DIAGNOSTICS INCORPORATED, Defendant. |
| Court | U.S. District Court — Western District of New York |
OPINION TEXT STARTS HERE
Harvey P. Sanders, Sanders & Sanders, Cheektowaga, NY, for Plaintiff.
Amy L. Hemenway, Harter, Secrest and Emery LLP, Buffalo, NY, Karyn D. Jefferson, Scotch Plains, NJ, for Defendant.
DECISION AND ORDER
Plaintiff Donna Shandrew (“Plaintiff”) commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, Plaintiff alleges Defendant Quest Diagnostics Incorporated (“Quest”) discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”) and disability in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12112 et seq. (“ADA”).
Presently before this Court is Defendant's Motion for Summary Judgment seeking dismissal of the Complaint in its entirety.1 (Docket No. 18.) Plaintiff opposes the motion.2 For the reasons stated below, Defendant's motion is granted in part and denied in part.
Quest is a provider of diagnostic testing, information and services. (Def.'s Stmt. ¶ 1.) 3 Quest offers these services through offsite facilities known as patient service centers (“PSC”). ( Id. ¶ 2.)
Plaintiff commenced employment with Quest on November 18, 1991 as a phlebotomist and remained in that position until her termination on or about May 28, 2004. ( Id. ¶ 3.) During the relevant time period, Plaintiff worked at the PSC located at 1150 Youngs Road, Williamsville, New York. (Stauffer Aff. ¶ 7.) At the time of her termination, Plaintiff was 58 years of age. (Def.'s Stmt. ¶ 5.)
During the relevant time period, Plaintiff reported directly to Martha Stutzman (“Stutzman”), a Phlebotomy Supervisor. ( Id. ¶ 41.) Stutzman reported directly to Cheri Schumacher (“Schumacher”), a Field Operations Manager. (Schumacher Dec. ¶¶ 2, 19.)
From on or about May 17, 2003 to November 3, 2003, Plaintiff was on medical leave due to surgery related to her cancer. (Def.'s Stmt. ¶ 42; Tr. 104:9–10.) Plaintiff's physician instructed that when she returned to work, she was not to lift over 25 pounds for a two-week period. (Def.'s Stmt. ¶ 43.) After she returned from her leave of absence, Plaintiff continued to undergo cancer treatment during off-work hours. ( Id. ¶ 45.) Plaintiff completed chemotherapy treatment on March 18, 2004. ( Id.)
Plaintiff alleges that after she returned to work, Stutzman commented that the cancer and/or chemotherapy treatment must have made her slow. ( Id. ¶ 80.) On April 16, 2004, Plaintiff wrote a letter to Quest's Managing Director, Mark Kehoe (“Kehoe”), complaining about how Stutzman was treating her. (Def.'s Ex. T.)
On or about April 28, 2004, Plaintiff's co-workers Maurita Potoczak and Marilyn Doran informed Stutzman they suspected Plaintiff was removing personal health information (“PHI”) from the PSC in violation of Quest's policy. (Def.'s Stmt. ¶ 47.) Stutzman reported the incident to Schumacher, who reported it to Quest's Compliance Department. ( Id. ¶ 49.) The Compliance Department hired independent investigator Peter O'Donnell to determine whether Plaintiff removed PHI or other confidential information from the workplace, and whether any such information had been improperly used or disclosed. ( Id. ¶¶ 50–52.)
On May 5, 2004, Quest disseminated a message to its employees via a broadcast message that PHI was not to leave the PSC. (Tr. 132:19–133:11)
O'Donnell commenced his investigation by interviewing five employees, including Plaintiff, on May 17, 2004. (Def.'s Stmt. ¶ 54.) At the conclusion of his interviews, O'Donnell determined Plaintiff violated Quest's policies governing the use, disclosure, and maintenance of PHI and confidential information when she admittedly removed PHI from the workplace. ( Id. ¶ 58.) Plaintiff stated she had removed PHI to her car to work on record keeping during her break. (Def.'s Ex. W.) Upon inspection, no PHI was found in Plaintiff's car. ( Id.) O'Donnell noted that “the PHI was not compromised and there was little risk of patient identity theft posed by [her] actions.” (O'Donnell Aff. ¶¶ 17–18.)
Based on the result of the investigation, Craig Stauffer (“Stauffer”), Director of Human Resources, along with Kelli Hunt, Manager of Patient Services, Schumacher, and members of the Corporate Compliance Department decided to terminate Plaintiff on May 28, 2004. (Def.'s Stmt. ¶¶ 60, 61.) Stauffer works out of Pittsburgh, but oversees the Quest locations in Buffalo. (Tr. 54:7–17.)
Another employee, Judith Ziegler (“Ziegler”) was terminated as a result of the same investigation where PHI was found in the trunk of her car. (Tr. 222:3–7; Def.'s Ex. W.)
On or about July 9, 2004, Plaintiff dually-filed a charge with the New York State Division of Human Rights (“NYSDHR”) and the EEOC alleging Quest discriminated against her because of her disability (cancer). (Def.'s Ex. A.) On December 21, 2005, the NYSDHR issued a Determination after Investigation, finding probable cause to believe Quest engaged in the unlawful discriminatory practice complained of, which it identifies as age and disability discrimination. (Def.'s Ex. B.)
A hearing was held before Administrative Law Judge Martin J. Erazo (“ALJ Erazo”) of the NYSDHR on July 11 and 12, 2007. (Def.'s Stmt. ¶ 12.) During the hearing, the parties stipulated to certain testimony and documentary evidence proffered during the hearing in a companion case, Ziegler v. Quest Diagnostics Incorporated (SDHR Case No. 10101632), which ALJ Erazo also presided over. ( Id.) In her case, Ziegler alleged both disability and age discrimination. ( Id.) ALJ Erazo allowed testimony and documentary evidence on the issue of whether Plaintiff's age was a factor in Quest's decision to terminate her, even though it was not raised as an issue for consideration by either party. ( Id. ¶ 13.)
At the conclusion of the hearing, ALJ Erazo issued a Decision and Order recommending a finding that Quest discriminated against Plaintiff on the basis of disability and age. ( Id. ¶ 15.) Quest filed objections to the Order. (Def.'s Ex. F.) On December 24, 2007, NYSDHR Adjudication Counsel Matthew Menes issued an Alternative Proposed Order concluding the evidence did not support the allegations. (Def.'s Ex. G.) On January 30, 2008, NYSDHR Commissioner Kumiki Gibson adopted the Alternative Proposed Order and the complaint was dismissed. ( Id.) The EEOC adopted the NYSDHR's findings and issued a Dismissal and Notice of Rights on July 16, 2008. (Def.'s Ex. H.)
On October 14, 2008, Plaintiff commenced this action by filing a Complaint with the Clerk of this Court. (Docket No. 1.) Quest filed an answer thereto on December 4, 2008. (Docket No. 4.) Quest filed the instant Motion for Summary Judgment on November 6, 2009. (Docket No. 18.)
Quest argues that Plaintiff may not raise her age discrimination claim in her federal case because it was not included in or reasonably related to the allegations contained in her EEOC charge. (Def.'s Memo., p. 4.)
Under the ADEA, a claimant may bring suit in federal court only if he has filed a timely complaint with the EEOC or a “State or local agency with authority to grant or seek relief from such practice.” See 42 U.S.C. § 2000e–5(e),(f); 29 U.S.C. § 626(d). To be timely, an EEOC complaint must “be filed ... within 300 days of the alleged discriminatory act.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir.2010); see also, 42 U.S.C. § 2000e–5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA).
However, a plaintiff may proceed with an ADEA claim in federal court following an untimely filing with the EEOC where the claim is “reasonably related” to an EEOC charge that was filed. Anderson v. Derby Bd. of Educ., 718 F.Supp.2d 258, 271 n. 30 (D.Conn.2010). “A claim raised for the first time is reasonably related to the allegations in an EEOC charge where the conduct complained of would fall within the scope of the EEOC investigation which can be reasonably expected to grow out of the charge of discrimination.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 83 (2nd Cir.2001) (citations and internal quotations marks omitted).
Plaintiff asserts that Quest was on notice of the age discrimination claim long before the hearing. (Pl.'s Memo., p. 10.) For instance, she argues the claim was included in an Amended Complaint filed with the NYSDHR. ( Id.) In addition, she states that her counsel submitted a letter concerning both age and disability discrimination claims. ( Id.) And, the NYSDHR found probable cause to believe that Quest was engaging in or engaged in the unlawful discriminatory practice complained of. ( Id.)
However, the Amended Complaint is unsigned and undated. Plaintiff asserts the ALJ mentioned in his Recommended Decision that an amended complaint was filed, but does not show same. Thus, it is unclear whether it was ever filed with the NYSDHR. In addition, Plaintiff's pre-hearing statement to the ALJ, written on October 27, 2006, states that the issue before the NYSDHR was: “Whether Respondent terminated Complainant due, in whole or part, to her disability.” (Def.'s Ex. D.) (Emphasis added.)
There may be a question of fact as to whether Plaintiff actually filed an Amended Charge with the EEOC alleging age discrimination; however, even if such a charge was properly filed, and the case is properly before the Court, the claim still does not survive summary judgment for the reasons stated below.
Federal Rule of Civil Procedure 56 provides that summary judgment is...
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