Whethers v. Nassau Health Care Corp.

• Decision Date: 08 July 2013
• Docket Number: No. 06–CV–4757 (DRH)(MLO).,06–CV–4757 (DRH)(MLO).
• Citation: 956 F.Supp.2d 364
• Parties: Doreen WHETHERS et. al., Plaintiffs, v. NASSAU HEALTH CARE CORPORATION, Sharon Popper, in her official and individual capacity, Richard Turan, in his official and individual capacity, Michael H. Mostow, in his official and individual capacity, Karl Kampe, in his official and individual capacity, and Petra Freese, in her official and individual capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

956 F.Supp.2d 364

Doreen WHETHERS et. al., Plaintiffs,

v.NASSAU HEALTH CARE CORPORATION, Sharon Popper, in her official and individual capacity, Richard Turan, in his official and individual capacity, Michael H. Mostow, in his official and individual capacity, Karl Kampe, in his official and individual capacity, and Petra Freese, in her official and individual capacity, Defendants.

No. 06–CV–4757 (DRH)(MLO).

United States District Court,

E.D. New York.

July 8, 2013.

Law Offices of Frederick K. Brewington, by: Frederick K. Brewington, Esq., Hempstead, NY, Gordon & Rees LLP, by: Deborah Swindells Donovan, Esq., New York, NY, for the Plaintiff.

Clifton Budd & Demaria, LLP, by: Sheryl Ann Orwel, Esq., New York, NY, Venable LLP, Rockefeller Center, by: Brian J. Clark, Esq., New York, NY, for the Defendants Nassau Health Care Corporation, Nassau University Medical Center, Sharon Popper, Richard Turan, Michael Mostow, Karl Kampe, Petra Freese.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiff Doreen Whethers (“Whethers” or “plaintiff”) commenced this action against defendants Nassau Health Care Corporation (“NHCC”), Sharon Popper, Michael H. Mostow, Karl Kampe, and Petra Freese ¹ (collectively, “NUMC defendants”),and defendant Richard Turan (“Turan”) asserting claims of race-based discrimination and retaliatory employment practices in violation of 42 U.S.C. § 2000e (Title VII), 42 U.S.C. § 1981, 42 U.S.C. § 1983, and New York's Human Rights Law, Executive Law § 296. (Sec. Am. Compl. ¶¶ 1–5, as Defs.' Ex. A). Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“ Rule 56”). For the reasons set forth below, the defendants' motion is granted.

BACKGROUND

The following facts, drawn from the parties' local Rule 56.1 statements, the pleadings, and prior decisions in this case, are undisputed unless otherwise noted.

Procedural History

In an Order dated June 13, 2008, this Court, adopting Magistrate Judge Orenstein's Report and Recommendation in its entirety, granted NUMC defendants' motion pursuant to Federal Rule of Civil Procedure 21 to sever into separate actions the claims of seven plaintiffs, including Whethers, who each claimed that defendants had discriminated against him or her based on race. ( See Docket No. 64 (Memorandum and Order, dated June 13, 2008)). In the same opinion, the Court also dismissed plaintiffs' Title VI claims in their entirety, their Title VII claims against the individual defendants, and all claims against Turan, other than those of Whethers, which were not challenged at that stage in the proceedings. ( Id. at 14–15.)

Plaintiff's Employment Responsibilities at NUMC

Plaintiff began work at Nassau University Medical Center (“NUMC”) as a Hospital Record Aide on August 20, 1990. (Whethers Decl. ¶ 3, as Pl.'s Ex. B (hereinafter “Whethers Decl.”).) NUMC is part of NHCC, a public benefit corporation created by the New York State Legislature. (Defs.' R. 56.1 Stmt. ¶ 1.) Employees of NUMC, such as plaintiff, are subject to Civil Service Law, pursuant to which “the Civil Service Commission determines the titles, process and method of promotion to higher Civil Service titles.” ( Id. ¶ 2.) In or around March of 1991, plaintiff received the Civil Service title of “Clerk Typist,” and she later became a “Clerk Typist I” in 1995. (Whethers Decl. ¶ 3) As a Clerk Typist I, plaintiff's job duties included “performing routine clerical work and filing.” (Defs.' R. 56.1 Stmt. ¶ 10.)

In 1999, NUMC established the Office of Diversity to educate and train employees on cultural competency and to investigate complaints of discrimination. (Defs.' 56.1 Statement ¶ 15). At that time, plaintiff became a Diversity Representative of the Office of Diversity and began assisting Clifton Johnson (“Johnson”), who was Director of the Office of Diversity. (Whethers Decl. ¶ 4; Pl. R. 56.1 Stmt. ¶ 17; Johnson Decl. ¶ 3, as Pl.'s Exhibit D (hereinafter “Johnson Decl.”).) In addition to the duties of Clerk Typist I, plaintiff's duties included dealing directly with the administration and investigating employee complaints. (Pl.'s R. 56.1 Stmt. ¶ 8; Whethers Dep. at 44–53, as Def.'s Ex. L. (hereinafter “Whethers Dep.”).) Plaintiff never received a promotion in her Civil Service Title to reflect her new duties as Diversity Representative. (Whethers Decl. ¶ 13.) In her new role, however, plaintiff did not suffer a loss in benefits or compensation. (Defs.' R. 56.1 Stmt. ¶ 20.)

The Board Meeting

On or about November 18 of 2002, Plaintiff attended an NHCC board meeting where Johnson addressed board members about the disparate treatment of African American employees. (Shaw Decl. ¶ 21, as Pl.'s Ex. C (hereinafter “Shaw Decl.”).) He spoke about the hospital's alleged practice of hiring white employees at higher level positions rather than promoting current African American employees or seeking African Americans outside the hospital for these positions. ( Id. ¶ 21.)

Transfers of the Office of Diversity

After the board meeting, NUMC transferred the Office of Diversity to different departments within the hospital three times in approximately two years. In 2002, NHCC first transferred the Office of Diversity from the Office of the General Counsel to the Department of Human Resources. (Defs.' R. 56.1 Stmt. ¶ 22.) NHCC then transferred the Office of Diversity back to the Legal Affairs Department in early 2003. ( Id. ¶ 28.) Around this time, the plaintiff also began reporting to Col. Vance Shaw, whom NUMC had hired to become the direct supervisor of the Office of Diversity. (Defs.' R. 56.1 Stmt. ¶ 24; Shaw Decl. ¶ 2.) In October 2003, NHCC transferred the Office of Diversity to the Department of Academic Affairs “because of its educational functions regarding cultural competency.” (Defs.' R. 56.1 Stmt. ¶ 30.) During the Office's transfers, plaintiff's job responsibilities remained the same.

As a result of its move to Academic Affairs, the Office of Diversity was moved to the Butler building, where all members of the non-managerial Academic Affairs staff maintained their offices. ( Id.¶ 32.) Plaintiff describes her work space in the Butler building as a “trailer shed” exposed to the elements and “infested with ants.” ( Id. ¶ 29.) When she worked in this space, she would meet with complainants in the cafeteria due to this “inadequate” office space. ( Id. ¶ 29.)

Plaintiff's Transfer to Medical Records Department

In February 2004, after plaintiff provided assistance to an employee in the Medical Records department who complained that her supervisor was discriminating against her, NUMC reassigned the plaintiff to the Medical Records Department. ( Id. ¶ 31.) The hospital asserts that they transferred plaintiff because it had to address departmental shortages after “one hundred and forty-nine employees were laid off from the NHCC for financial reasons.” (Defs.' R. 56.1 Stmt. ¶ 43.) In the Medical Records Department, Plaintiff no longer performed the duties of a Diversity Representative, and her new duties were to pull files and copy charts. (Whethers Decl. ¶ 33.)

In May 2004, Plaintiff requested and received a leave of absence. (Whethers Dep. at 140–141.) During her leave of absence, she applied for and received long-term disability benefits because of lupus and rheumatoid arthritis. (Defs.' R. 56.1 Stmt. ¶ 52.) Ultimately, plaintiff did not return to work, but voluntarily retired and currently receives retirement benefits in addition to disability benefits. ( Id. ¶ 52.)

The Defendants

The named defendants were involved in employment decisions affecting plaintiff during the alleged period of discrimination and retaliation at defendant hospital. Richard Turan held the title of NHCC President and Chief Executive Officer until 2004. (Turan Dep. at 7, as Defs.' Ex. M.) Sharon Popper, who reported to Turan, was NHCC's Senior Vice President of Legal Affairs and General Counsel from January 2003 through May 2008. (Popper Dep. at 8–11, as Defs.' Ex. N.) She managedall of NHCC's legal issues and affairs, including the Office of Diversity. ( Id. at 11–12.) Karl Kampe served as Vice President of Human Resources from the end of 2002 to December 2003. (Kampe Dep. at 5, as Defs.' Ex. O.) He oversaw the Office of Diversity for two months after NHCC transferred the office to the Department of Human Resources in 2002. ( Id. at 5.) Michael Mostow started as the Associate Dean of Academic Affairs and was then promoted to the Dean of Academic Affairs. (Mostow Dep. at 7, as Defs.' Ex. P.) He supervised the Office of Diversity when it was transferred to the Department of Academic Affairs in October 2003. ( Id. at 8–10.) Petra Freese has been the Medical Records Director “on and off” since 1981, though she is currently employed at NHCC as Director of Health Information Systems and Admissions Management. (Freese Dep. at 5–6, as Defs.' Ex. Q.)

Plaintiff's Current Actions

On August 30, 2006, plaintiff commenced this action against defendants, seeking injunctive relief and monetary damages. (Sec. Am. Compl.¶ 1.) She seeks damages for past and on-going loss, compensatory damages, pain and suffering, and disbursement costs and fees. ( Id.) She brings this action under Title VII of the Civil Rights Act (as amended), 42 U.S.C. § 2000e et seq.,42 U.S.C. §§ 1981 and 1983; the Fourteenth Amendment to the United States Constitution, and New York State's Human Rights Law, Executive Law § 296, and other State causes of action. ( Id.) Defendants move for summary judgment pursuant to Rule 56. For the reasons stated below, defendants' motion is granted.

DISCUSSION

I. Applicable Law and Legal Standards

Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N....