Smith v. N. Shore-Long Island Jewish Health Sys.

• Citation: 286 F.Supp.3d 501
• Decision Date: 26 February 2018
• Docket Number: 15–CV–04235 (MKB)
• Parties: Nola SMITH, Plaintiff, v. NORTH SHORE–LONG ISLAND JEWISH HEALTH SYSTEM, Defendant.
• Court: U.S. District Court — Eastern District of New York

286 F.Supp.3d 501

Nola SMITH, Plaintiff,

v.NORTH SHORE–LONG ISLAND JEWISH HEALTH SYSTEM, Defendant.

15–CV–04235 (MKB)

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

Signed February 26, 2018

Joshua Alexander Bernstein, Josh Bernstein PC, New York, NY, for Plaintiff.

Celena R. Mayo, Ricki E. Roer, Lakisha Marie Spence, Wilson, Elser, Moscowitz, Edelman & Dicker L.L.P., Annette Aizenose Aletor, Gordon & Rees, LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge

Plaintiff Nola Smith commenced the above-captioned action on May 8, 2015, against Defendant North Shore–Long Island Jewish Health System. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on October 12, 2015, (Am. Compl., Docket Entry No. 26–1), alleging claims for retaliation under the Family and Medical Leave Act, 29 USC § 2601 et seq. ("FMLA"), and disability discrimination under the Americans with Disabilities Act, 42 USC § 12101 et. seq . ("ADA"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8–101, et seq. ("NYCHRL"). Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Def. Mot. for Summ. J. ("Def. Mot."), Docket Entry No. 63; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 63–6.) For the reasons discussed below, the Court grants in part and denies in part Defendant's motion for summary judgment.

I. Background

The following facts are undisputed except as otherwise noted. Plaintiff Nola Smith is a registered nurse who was hired to work at Forest Hills Hospital (the "Hospital") on September 22, 2008. (Def. Statement of Material Facts Pursuant to Local R. 56.1 ("Def. 56.1") ¶ 6, Docket Entry No. 63–1.) Defendant North Shore–Long Island Health System ("Defendant"), is a large hospital system comprised of sixteen affiliate hospitals including the Hospital. (Id. ¶ 2.)

Until her termination on August 23, 2013, Smith served as a nurse in the Ventilation Unit of the Hospital's Medical Surgical Department as part of Unit 4N. (Id. ¶ 6; Pl. Response to Def. 56.1 ("Pl. 56.1") ¶ 14, Docket Entry No. 66.) During the course of her employment, Rhonnie Jackson, the Hospital's Director of Patient Care Services, among others, supervised Smith. (Def. 56.1 ¶ 8.) Jackson oversaw the Hospital's Critical Care, Intensive Care ("ICU"), and Medical Surgical Units. (Id. ) Beginning in 2012, Jackson became Smith's direct supervisor, replacing Rose Clarke, a nurse manager who had begun a series of intermittent leaves of absence. (Id. ) Jackson, in turn, reported to Doreen O'Grady, the Hospital's Chief Nursing Officer. (Id. )

a. Work schedule and absences from work

Throughout her employment, Smith suffered from various disabilities including generalized anxiety disorder

and panic attacks for which doctors have prescribed her a number of medications over the years. (Def. Response to Pl. 56.1 ("Def. 56.1 Resp.") ¶ 2, Docket Entry No. 64–1.) Due to these disabilities, the Hospital has accommodated Smith with a lighter work schedule compared to other nurses. All other nurses in Unit 4N worked a "flex" schedule, defined as five thirty-six hour work weeks, consisting of three twelve hour days, followed by one forty-eight hour work week, consisting of four twelve hour days. (Def. 56.1 ¶ 7.) In contrast, Smith worked, at most, thirty-five hours per week and the Hospital gave her at least a temporary reprieve from having to work the longer-hour weeks. (Id. ; Def. 56.1 Resp. ¶ 9.)

In addition, Smith was granted a three-month leave of absence from June 1, 2012 to September 4, 2012 pursuant to the FMLA for a nervous breakdown she suffered allegedly as a result of harassment by Clarke. (Pl. 56.1 ¶ 17; Def. 56.1 Resp. ¶ 4.) During the course of her employment, the Hospital granted Smith at least eight separate leave accommodations for various ailments, including her disabilities. (Id. ¶¶ 3, 11.) According to Defendant, its insurer Hartford administers FMLA leave, while the Hospital's Human Resources ("HR") department administers disability accommodations. (Pl. 56.1 ¶ 2; Deposition of Angela Fisher ("Fisher Dep.") 46:21–47:8, Docket Entry No. 68–7.)¹

The Hospital has a sick leave guideline that automatically flags for discipline any nurse that has called in more than three times in a quarter. (Def. 56.1 Resp. ¶ 11; Deposition of Doreen O'Grady ("O'Grady Dep.") 32:20–24; 36:13–37:14, Docket Entry No. 68–6.) Although FMLA and other approved leaves are exempt from the policy, the Hospital generates a spreadsheet of nurses who fall within the guideline based solely on the total number of absences, regardless of the reason for absence.

(Def. 56.1 Resp. ¶ 11; O'Grady Dep. 37:9–14.)

b. Disciplines and other actions

According to Smith, after she returned from her FMLA leave in the summer of 2012, Jackson immediately began chastising her for taking leave. Because the spreadsheet includes both protected and unprotected leave, O'Grady instructed Jackson to check to ensure Smith's absences were not approved FMLA leave, (O'Grady Dep. 33:8–22), but she did not instruct Jackson to check whether Smith's absences were accommodations for a disability, (id. at 33:19–22). Pursuant to this policy, in October of 2012, Jackson appeared to have issued Smith a verbal warning—the first step in the Hospital's three-step Progressive Discipline Policy—for excessive leave. (See October 13, 2012 Email, annexed to Pl. Opp'n to Def. Mot. ("Pl. Opp'n"), Docket Entry No. 68, as Ex. 18, Docket Entry No. 68–18; October 1, 2012 Email, annexed to Pl. Opp'n as Ex. 19, Docket Entry No. 68–19; Deposition of Rhonnie Jackson Dep. ("Jackson Dep.") 55:3–56:17, Docket Entry No. 68–4.)

On December 26, 2012, O'Grady also instructed Jackson to discipline Smith again for calling in sick for a fourth time in the quarter. (December 26, 2012 Email, annexed to Pl. Opp'n as Ex. 20, Docket Entry No. 68–20.) Accordingly, Jackson drafted a written warning—the second step of the Progressive Discipline Policy—and scheduled a meeting with Smith for December 28, 2012. (Jackson Dep. 62:10–15; Disciplinary Warning Notice, annexed to Pl. Opp'n as Ex. 21, Docket Entry No. 68–21.) At the meeting, before Jackson could issue the Disciplinary Warning Notice, Smith complained that several of the absences listed as problematic were approved leave. (Def. 56.1 Resp. ¶ 10.) As a result, Jackson did not officially issue the written warning to Smith. (Id. ) The Disciplinary Warning Notice noted that on September 13, 2012, the Hospital had issued Smith a verbal warning to improve her sick time. (Disciplinary Warning Notice.)

In addition to the formal discipline discussed above, Smith contends that her leaves of absence had been a continuing source of conflict with Jackson and others at the Hospital. Between July 6, 2012 and June 26, 2013, the Hospital denied Smith transfers to the ER or ICU units on five separate occasions. According to Smith, Jackson told her that her transfer requests were being denied because of excessive leave. (Deposition of Nola Smith ("Smith Dep.") 122:24–125:3; 178:24–179:16, Docket Entry No. 68–3.)

Smith also contends that she had a much more difficult time getting approved for job-related conferences. (Id. at 138:7–24.) Smith and other nurses who work twelve-hour shifts are entitled to twenty-eight hours of paid conference leave per year. (Fisher Dep. 23:19–22.) Typically, nurses or their union pay for conferences upfront and then apply for reimbursement by submitting a certificate of attendance.² (Jackson Dep. 92:9–93:5; CBA, annexed to Pl. Opp'n as Ex. 26, Docket Entry No. 68–26.) If the Hospital chose to front expenses and wages for each day of attendance, and the nurse fails to attend the conference, the practice has been to "reverse the pay" or to use the employee's "accrued paid time off."³ (Jackson Dep. 40:14–25; O'Grady Dep. 27:9–14; CBA at 8.)

As early as November of 2012, Smith complained to Jackson about this perceived differing treatment, telling him that she felt "singled out." (November 5, 2012 Email, annexed to Pl. Opp'n as Ex. 24, Docket Entry No. 68–24.) In particular, in early 2013, Jackson initially denied Smith's request to attend a two-day EKG conference to be held on February 7 and 14, 2013 ("February Conference"). (Def. 56.1 ¶ 15.) Although the Hospital had approved at least one other nurse from Unit 4N to attend the conference, Jackson denied Smith's request to attend the February Conference because the EKG conference involved subjects unrelated to Smith's "day-to-day nursing duties and [Smith's] patients did not involve or require EKGs." (Jackson Aff. in Supp. of Def. Mot. ("Jackson Aff.") ¶ 9, annexed to Def. Mot. as Ex. I, Docket Entry. No. 63–3; Jackson Dep. 81:6–10.) After discussing the matter further with the union for nurses, Jackson subsequently approved Smith's request. (Jackson Dep. 80:17–81:4.) However, Smith was scheduled to work the night shift from 7 PM to 7 AM the morning of the first day of the conference set to begin at 9 AM, two hours after the end of the shift. (Smith Dep. 136:19–22; Smith Aff. in Supp. of Pl. Opp'n ("Smith Aff.") ¶ 5, annexed to Pl. Opp'n as Ex. Ex. 2, Docket Entry No. 68–2.) Because of the short turnaround between the end of her shift and the scheduled start time of the conference, Smith requested that Jackson remove her from the shift because she could not otherwise attend the conference. (Jackson Dep. 81:20–22; Jackson Aff. ¶ 10.) Jackson told Smith that she needed to switch her schedule with someone else. (Jackson Aff. ¶ 10.) Smith was unable to find anyone willing to switch schedules with her and therefore worked her scheduled shift and did not attend the conference. (Jackson Aff. ¶ 10; Smith Aff. ¶ 8.) Although Smith never submitted a certificate of attendance for the February Conference, (Jackson Aff. ¶ 11), the Hospital paid for the conference days as if she had attended. (Id. ) Smith assumed that the pay was for accrued paid time off. (Smith Dep....