JOHN G. KOELTL, District Judge.
This is an employment discrimination action brought by the plaintiff, Yamilee Mondesir, against North Shore-Long Island Jewish Health System ("North Shore"), Rachael Tabershaw, and Alberina Balidemic. The plaintiff was employed by North Shore and worked as a Practice Secretary at Lenox Hill Hospital, a member hospital, from around July 1, 2013 through October 18, 2013. The plaintiff alleges that two supervisors subjected her to a hostile work environment based on her race, and that her employment was terminated in retaliation for her complaining about her treatment in the workplace.
The plaintiff brought claims for: (1) a hostile work environment based on racial harassment under § 1981 as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981; (2) the same hostile work environment under the New York City Human Rights Law (the "NYCHRL"), Administrative Code of the City of New York § 8-107(1); (3) retaliation under NYCHRL § 8-107(7); and (4) aiding and abetting against the individual defendants under NYCHRL § 8-107(6). The plaintiff also brought a claim under New York State Labor Law § 741, which she withdrew in response to the defendants' motion for summary judgment.
The defendant moves for summary judgment dismissing the Complaint in its entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motion is
The standard for granting summary judgment is well established. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.
The plaintiff, a black woman born in Haiti, was employed by Dr. Cordia Beverly as an assistant in her medical practice located at 1085 Park Avenue (the "1085 Practice") for more than twenty years. (56.1 Stmts. ¶¶ 2, 7-8.) Lenox Hill Hospital, a member of North Shore, acquired Dr. Beverly's practice on July 1, 2013. (56.1 Stmts. ¶ 5.) The plaintiff was employed as a Practice Secretarial Associate by North Shore until her termination on October 18, 2013. (56.1 Stmts. ¶¶ 13, 15.) The first six months of her employment by North Shore were deemed an Assessment Period. (56.1 Stmts. ¶ 11.) As a Practice Secretarial Associate, the plaintiff performed administrative duties such as scheduling patient appointments. (56.1 Stmts. ¶ 15.)
Rachael Tabershaw was employed as Practice Business Manager during the plaintiff's period of employment by North Shore. (56.1 Stmts. ¶ 16.) Alberina Balidemic was employed as on-site manager for the 1085 Practice beginning September 3, 2013, and reported to Tabershaw. (56.1 Stmts. ¶¶ 17, 19.)
The plaintiff alleges that in August 2013, Balidemic entered the office and said "Hi girl" to her. (56.1 Stmts. ¶¶ 34-35.) She then told Balidemic that she would like to be referred to by her name. (56.1 Stmts. ¶ 37.) The parties dispute whether "Hi girl" was a friendly greeting. (56.1 Stmts. ¶ 35.) The plaintiff alleges that on a second occasion in August or September 2013, Balidemic walked by the plaintiff and her colleague Jorina Duhaney, who is also black, and said "Hi girls." (56.1 Stmts. ¶¶ 42, 43.) The plaintiff further alleges that Balidemic walked by and said "Hi girl" on a third occasion in August or early September 2013. (56.1 Stmts. ¶ 45.)
Additionally, in emails sent August 12 and September 3, Balidemic wrote that she would have "the girls" assist with certain requests. (Pl.'s Decl. Ex. 11.)
The plaintiff also alleges that in a staff meeting on September 6 attended by the plaintiff, Tabershaw, Balidemic, Duhaney, and another practice employee, Duhaney said people should not yell at one another, and the plaintiff said people should respect one another. (56.1 Stmts. ¶¶ 56-64.) When asked to explain, the plaintiff responded that "Balidemic has been referring to [her] as a girl after [she] specifically ask[ed] her not to call [her] girl, to call [her] by [her] name." (56.1 Stmts. ¶ 61.) She further alleges that she was subject to intense scrutiny after this meeting until she was terminated on October 18, 2013. (56.1 Stmts. ¶¶ 115-16, 118.)
The plaintiff alleges that Balidemic's use of the word "girl" was racially derogatory and created a hostile work environment in violation of § 1981 and the NYCHRL. She also alleges the defendants retaliated against her in violation of the NYCHRL. The defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
Under § 1981, the plaintiff must establish two elements to prove that she was subjected to a hostile work environment based on race. First, the plaintiff must demonstrate that the harassment was "sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment."
Second, the plaintiff must show a specific basis for imputing the hostile work environment to the employer.
To analyze a hostile work environment claim, courts consider the "totality of the circumstances, in light of such factors as `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"
The plaintiff argues that by using the term "girl" in reference to the plaintiff, the defendants created a hostile work environment in violation of Section 1981. Section 1981 recognizes "dog-whistle racism," or "the use of code words and themes which activate conscious or subconscious racist concepts and frames."
Examining the totality of the circumstances, the plaintiff has failed to adduce sufficient evidence from which a rational trier of fact could conclude that she was subjected to a hostile work environment because of her race. The plaintiff alleges that she never heard Balidemic greet any white employees using the term "girl." But this alone is insufficient to show racial animus because the only employees seated at the entrance to the workplace, Mondesir and Duhaney, were black.
The plaintiff further claims that Balidemic's tone of voice and manner when using the term — not making eye contact, not attempting to make further conversation, and giggling when the plaintiff asked to be referred to by her name — is also indicative of racial animus. While this behavior may have been unprofessional, there is insufficient evidence to show that the term was racially derogatory. Nor were the remarks physically threatening or humiliating.
The plaintiff also references two emails sent by Balidemic to co-workers in which she wrote that she would have "the girls" assist with certain work-related requests. The emails are benign, and nothing about the context of these emails suggest that they were racially derogatory. Indeed, it would be a stretch to categorize any one of these emails as even a "mere offensive utterance," which, without more, is insufficient to show a hostile work environment.
Even assuming that the use of the term "girl" could have racial undertones, Balidemic used the term in reference to the plaintiff five times (including the e-mails) over the course of two to three months. These incidents were therefore "episodic" and not "sufficiently continuous and concerted in order to be pervasive."
The plaintiff also alleges that she was subjected to a hostile working environment because she was intensely scrutinized at the workplace. The plaintiff alleges that she was documented for failing to check her emails and faxes, reprimanded for abruptly hanging up the phone at the conclusion of a telephone call with Tabershaw, placed on probation, and subjected to constant monitoring. However, the plaintiff fails to point to any credible evidence indicating that this treatment was due to her race.
The defendants' motion for summary judgment dismissing the plaintiff's claim for a hostile work environment based on racial harassment under § 1981 is
In addition to her federal claim, the plaintiff also alleges a hostile work environment under NYCHRL § 8-107(1), retaliation under NYCHRL § 8-107(7), and aiding and abetting against the individual defendants under NYCHRL § 8-107(6).
Whether to exercise supplemental jurisdiction "is within the sound discretion of the district court."
The Court declines to exercise supplemental jurisdiction over the NYCHRL claims because it has dismissed all claims over which it has original jurisdiction.
The Court also declines to exercise supplemental jurisdiction over the retaliation claim because the only claim for retaliation is based on the NYCHRL, for which New York courts should determine the applicable standard.
The Court has considered all of the arguments raised by the parties. Any remaining arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted. The Complaint is dismissed, although the NYCHRL claims are dismissed without prejudice. The Clerk is directed to enter judgment and to close the case. The Clerk is also directed to close all pending motions.
SO ORDERED.