MARGO K. BRODIE, District Judge.
Plaintiff Laura Russo brought the above-captioned action against Defendants New York Presbyterian Hospital ("Presbyterian Hospital"), New York Hospital Medical Center of Queens ("Queens Medical Center"), and Dr. Mark Adkins ("Adkins"), alleging claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL").
Plaintiff was hired by Presbyterian Hospital in 1994 as a perfusionist, a healthcare professional who operates the heart-lung machine during cardiac surgery "to support the physiological and metabolic needs of the surgical patient."
Plaintiff alleges that from September 2004 until May 2008, Adkins treated Plaintiff and all women, in an "inappropriate and demeaning manner" on a regular basis. (Pl. Combined 56.1 ¶¶ 6-7, 13; Pl. Aff. ¶¶ 7-8.) According to Plaintiff, Adkins made "comments of an underlying sexual nature" and acted "in a physically intimidating manner towards women." (Pl. Combined 56.1 ¶ 7; Pl. Aff. ¶ 8.) During surgery, Adkins referred to a chest tube as a "mister softie," and requested a pair of 36 chest tubes by asking for a "pair of 36s" while holding "his hands as if he were grabbing a woman's breasts." (Pl. Combined
Plaintiff recalls two incidents in October 2007 which Plaintiff argues demonstrate that Adkins treated her inappropriately because of her gender. In the first incident in October 2007, Adkins was sitting in the perfusion office with his feet on the desk while reading a newspaper or magazine. (Pl. Combined 56.1 ¶ 31.) Plaintiff said "excuse me," as she needed to move past Adkins in order to retrieve a piece of equipment required for a medical procedure. (Id.) Adkins replied "no problem," and lifted one leg off the desk to allow Plaintiff to move past him. (Id.) As Plaintiff started to move towards him, Adkins blocked her path by leaning forward and refusing to lift his other leg. (Id.) Adkins' actions left Plaintiff "stuck directly in front of [Adkins'] crotch" and she felt "trapped." (Id. ¶ 31-34.) Plaintiff again said "excuse me." (Id. ¶ 31.) Adkins removed his other leg from the desk, allowing Plaintiff to proceed and to retrieve the equipment. (Id.) Adkins denies blocking Plaintiff or trapping her. (Adkins Dep. 103:11-104:3.) In the second incident, also in October 2007, Adkins "brushed up against" Plaintiff as he was passing her in the perfusion office. (Pl. Combined 56.1 ¶ 36.)
After these two incidents in October 2007, Plaintiff told her coworker Pat Esposito about the incidents, and Plaintiff believes Esposito then told DeBois. (Pl. 56.1 ¶¶ 37-39.) DeBois subsequently asked Plaintiff "why she did not mention this to him," and Plaintiff replied that she would prefer not to get involved because she thought that would "make matters worse" and she feared retaliation. (Pl. 56.1 ¶ 40; Pl. Dep. 181:8-182:8.) DeBois offered to speak with Adkins, but Plaintiff felt that if DeBois approached Adkins about the incidents, "it would only make matters worse." (Pl. Dep. 223:10-224:16.) DeBois, Presbyterian Hospital and Queens Medical Center deny that Plaintiff or Esposito made
On May 15, 2008, Plaintiff worked at Presbyterian Hospital from 7:00 a.m. to 3:00 p.m. and was then "on-call" at Queens Medical Center from 3:00 p.m. to 8:00 p.m. (Pl. Combined 56.1 ¶ 47.) While "on call" at Queens Medical Center, Plaintiff was assigned to assist the primary perfusionist, Karen Hussey, who was responsible for operating the heart-lung machine for a patient undergoing emergency open heart surgery being performed by Adkins. (Def. PH 56.1 ¶¶ 4, 6.) After the patient was removed from the heart-lung machine, but before the surgery was completed, Plaintiff went home at approximately 9:15 p.m. (Def. PH 56.1 ¶ 7; Def. QMC 56.1 ¶ 10; Def. Adkins 56.1 ¶¶ 14-16; Pl. Dep. 40:9-10, 51:25.) Plaintiff did not inform Adkins or her supervisor that she was leaving the operating room. (Id. at ¶ 9.) Plaintiff claims that she did speak with Hussey prior to leaving and that Hussey told her to leave. (Pl. Aff. ¶¶ 46, 50, 53, 54.)
After Plaintiff left the hospital, an emergency arose that required the patient to be placed back on the heart-lung machine. (Def. PH 56.1 ¶ 12; Def. QMC 56.1 ¶ 10; Def. Adkins 56.1 ¶ 17.) Hussey had trouble getting the patient back on the machine, and Plaintiff was ordered to return to work because "the patient was dying."
When Plaintiff arrived at the operating room, Adkins yelled at Plaintiff and the entire staff because he was upset about Plaintiff's departure and the emergency situation that had occurred with the patient. (Def. PH 56.1 ¶ 23; Def. QMC 56.1 ¶ 14; Adkins Dep. 52:5-24; Pl. Combined 56.1 ¶¶ 82-84, 86, 88-90.) Adkins' verbal outburst included the use of many profanities, several of which were directed solely at Plaintiff. (Pl. Combined 56.1 ¶¶ 82-84, 86, 88-90; Pl. Aff. Ex. D, E.) Plaintiff felt that Adkins had verbally attacked her and that some of his comments were sexual in nature, as they related to her having a "Chinese boyfriend" and included the use of the word "f*ck" many times.
Plaintiff attempted to get in touch with several supervisors while the incident was still occurring. Plaintiff called Barbara Elmer, the supervisory perfusionist, to complain about Adkins' "abusive physician behavior," and requested Elmer's presence at the operating room because of Adkins' behavior towards her. (Pl. Combined 56.1
DeBois returned from his vacation on Monday, May 19, 2008, and met with the perfusionist team for a staff meeting to discuss the events that occurred on the evening of May 15, 2008. (Def. PH 56.1 ¶¶ 25-26; Pl. 56.1-PH ¶¶ 25-26.) Plaintiff claims that at the meeting, DeBois stated that Plaintiff was "technically ... off," but announced that in the future, no one should leave before the patient is out of the operating room. (Pl. Dep. 92:8-24.) Defendant claims that during the meeting, DeBois told Plaintiff that she should not have left the operating room before the patient. (Def. PH 56.1 ¶ 26; Pl. 56.1-PH ¶¶ 25-26; Pl. Dep. 92:8-24.)
After the staff meeting on May 19, 2008, Plaintiff spoke with DeBois about the incident. (Def. PH 56.1 ¶ 27; Pl. 56.1-PH ¶ 27.) According to Plaintiff, she complained about the harassment and "requested to have a meeting with DeBois and Adkins, in order to resolve concerns about sexism, language, vulgarity and harassment that she had been subjected to." (Pl. Aff. ¶¶ 83-84.) Plaintiff also told DeBois that she was going to complain to the human resources department, but DeBois dissuaded her from doing so by stating that he could handle the matter, that complaining would only make it worse, and that "although retaliation is illegal it is also very real." (Pl. Combined 56.1 ¶¶ 113-114; Pl. Aff. ¶¶ 84-85.) According to DeBois, Plaintiff only complained about the cursing and did not complain about sexual discrimination or harassment. (Def. PH 56.1 ¶ 27; DeBois Dep. 14:17-15:6, 130:9-23.)
Plaintiff continued to work, including participating in a surgery with Adkins, until she was informed by DeBois on May 20, 2008, that she was relieved of her duties pending an investigation of the May 15, 2008 operating room incident.
Plaintiff filed a formal written complaint which was a summary of Adkins' verbal outburst on May 15, 2008. (Pl. Combined 56.1 ¶¶ 133, 135; Pl. Aff. ¶¶ 94, 96; Pl. Aff. Ex. E.) The complaint stated that Plaintiff felt harassed, and it included many of the remarks made by Adkins on May 15, 2008. (Pl. Combined 56.1 ¶¶ 133, 135; Pl. Aff. ¶¶ 94, 96; Pl. Aff. Ex. E.) Plaintiff's written complaint did not include any reference to sexual harassment or to discrimination. Plaintiff claims that although the formal written complaint only refers to harassment and does not explicitly state sexual harassment, it was implied that she meant sexual harassment, and that she verbally communicated this to Bautista. (Pl. Combined 56.1 ¶ 136; Pl. Dep. 302:22-305:12.) According to Presbyterian Hospital, Plaintiff only complained to Bautista about Adkins' vulgar language and did not complain about sex discrimination, harassment, or retaliation. (Def. PH Mot. to Strike ¶ 127; Bautista Dep. 18:13-20.) Bautista advised Plaintiff to make a formal complaint to the human resources department at Queens Medical Center. (Pl. Combined 56.1 ¶ 133; Pl. Dep. 107:8-24.) Shortly after Plaintiff complained to Bautista, Adkins faxed a letter to Bautista complaining that Plaintiff had left during surgery and that Plaintiff's actions did not meet the standard of care at Queens Medical Center and that he trusted that Bautista would, "take the appropriate action to resolve this situation." (Pl. Comb. 56.1 ¶ 145; Pl. Dep. 94:16-95:15; Pl. Aff. Ex. S.)
On May 27, 2008, Plaintiff complained to Kristen Friedl and Frank Dumont of Queens Medical Center's human resources department regarding the operating room incident. (Def. QMC 56.1 ¶ 29.) Plaintiff provided Friedl and Dumont with a written summary of curses used by Adkins during the operation room incident which described "abusive physician behavior" and "harassment" but did not mention sexual harassment. (Def. QMC 56.1 ¶ 29; Def. QMC Ex. F.) According to Plaintiff, she told Friedl and Dumont verbally that she was claiming "sexual harassment." (Pl. Dep. 302:3-303:15.) Queens Medical Center conducted an investigation into
On May 28, 2008, Presbyterian Hospital terminated Plaintiff's employment for her unauthorized departure on the evening of May 15, 2008.
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "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); see also Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir.2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir.2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000). The Second Circuit has "cautioned that `[w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed,
Defendants assert that Plaintiff's claims under federal, state and city law are time barred. (QMC Mem. 26-27; QMC Reply 13-15; Adkins Mem. 13-14; PH Reply 16.) For the reasons set forth below, the Court finds that all Title VII hostile work environment claims against Presbyterian Hospital and Queens Medical Center that accrued prior to November 22, 2007 are time-barred. Plaintiff's state and city law hostile work environment claims against Presbyterian Hospital and Queens Medical Center that accrued prior to November 24, 2005 are time-barred, and Plaintiff's state and city law claims against Adkins that accrued prior to May 19, 2007 are time-barred.
Plaintiff's Title VII claims prior to November 22, 2007, are time barred pursuant to the 300-day statute of limitations set forth in Title VII. See 42 U.S.C. § 2000e-5(e)(1). In New York, a plaintiff has 300 days after the alleged discriminatory incident to file a claim with the EEOC. Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 125-126 (2d Cir. 2010); Klein v. N.Y. Univ., No. 07-CV-0160, 2008 WL 3843514, at *2 (S.D.N.Y. Aug. 14, 2008) (citing Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001)). Plaintiff filed her EEOC claim on September 17, 2008. (Def. QMC Mem. 27.) Therefore, all Title VII claims that are based on conduct that occurred before November 22, 2007, 300 days prior to September 17, 2008, are time-barred.
Plaintiff alleges that Adkins made "comments of an underlying sexual nature" and acted "in a physically intimidating manner towards women" from September 2004 through Plaintiff's termination in 2008, and under the continuing violation doctrine, all of Adkins' conduct is within the statute of limitations. (Pl. Opp'n 33; Pl. Combined 56.1 ¶¶ 6-7, 13; Pl. Aff. ¶¶ 7-8.) However, Plaintiff has not provided evidence of any specific conduct that occurred on or after November 22, 2007, other than the operating room incident on May 15, 2008, which, as discussed below, was not gender-based conduct. Therefore, Plaintiff cannot demonstrate a continuing violation exception to the statute of limitations period.
Under the continuing violation exception to the Title VII limitations period, "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir.2012) (citations and internal quotation marks omitted); see also Jackson v. N.Y. Office of Mental Health, No. 11-CV-7832, 2012 WL 5862741, at *2 (S.D.N.Y. Nov. 15, 2012) ("The continuing violation exception makes violations that took place prior to the expiration of the statute of limitations actionable if they are part of a `continuous policy and practice of discrimination' and at least one act in that policy and practice took place within the limitations period." (quoting Fitzgerald, 251 F.3d at 359)). Since "[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one `unlawful employment practice,'" the entire time period of the alleged hostile environment "may be considered by a
The only conduct Plaintiff complained of on or after November 22, 2007, is the May 15, 2008 operating room incident. The Court must therefore determine whether that incident is "sufficiently related" to the other alleged offensive conduct such that it is "part of the same alleged hostile work environment practice." McGullam, 609 F.3d at 76; see e.g. Caravantes, 2012 WL 96474, at *7-8 (finding that a campaign of harassment that began with sexual touching and escalated to genital groping and oral intercourse constituted a continuing violation because "the genital groping and oral intercourse began prior to the statutory time period and persisted"); Lamar v. Inst. for Family Health, No. 09-CV-1154, 2011 WL 2432925, at *9 (N.D.N.Y. June 16, 2011) (holding that the continuing violation doctrine applied to a series of discriminatory acts by an offender, with whom plaintiff had previously had an extramarital affair, because each act was based on plaintiff's gender, and plaintiff claimed that the offender's behavior was "motivated by his jealousy and need to control" plaintiff), aff'd, 472 Fed.Appx. 98 (2d Cir. 2012); Bermudez v. City of New York, 783 F.Supp.2d 560, 582 (S.D.N.Y.2011) (finding that the continuing violation doctrine applied to plaintiff's hostile work environment claim based on sexual comments, gestures, and acts, because at least one act
Plaintiff has alleged "inappropriate comments and actions of a sexual nature" by Adkins, which began prior to the statutory time period, based on Adkins' references to a chest tube as "a pair of 36s" and another as "mister softie," and two incidents in October 2007 when Adkins made Plaintiff feel physically uncomfortable. (Pl Opp'n 19-20.) However, Plaintiff has offered no evidence that Adkins made a sexual reference or inappropriately touched or approached her on or after November 22, 2007. (See supra note 7; see also infra Part c.) According to Plaintiff's description of Adkins' verbal outburst during the operating room incident on May 15, 2008, Adkins verbally attacked her and uttered numerous curses, such as (1) "Don't you ever f*cking do that again," (2) "Kiss my ass goodbye after tonight," (3) "Can anyone f*cking pump a cardiopulmonary bypass circuit?," (4) "F*cking bullsh*t g*ddamn it!," (5) "Maybe [Plaintiff] has a g*ddamn play book that can teach me how to do the f*cking surgery," (6) "No one takes their job seriously. I don't even give a sh*t anymore," (7) "Jesus f*cking Christ, do you really think this guy can actually come off. Get f*cking serious," (8) "[W]hose ass tomorrow? Who's [sic] ass? My f*cking ass, [the CEO of Queens Medical Center] will have my ass tomorrow," (9) "Did [DeBois] ever f*cking call me back," (10) "[O]h, f*ck me, Jesus Christ. I can't f*cking believe this," (10) "[T]his is a f*cking joke, could this case get any more f*cked up," and (11) "[M]ove the f*cking table." (Pl. Combined 56.1 ¶¶ 81-82; Pl. Aff. ¶ 64.) At one point Adkins asked Plaintiff whether this was her plan to get her "f*cking Chinese boyfriend back here," referring to Dr. Ko, Adkins' predecessor. (Pl. Combined 56.1 ¶¶ 81, 83; Pl. Aff. ¶¶ 64-65.) Plaintiff concedes that she did not believe that Adkins was "inferring" that Dr. Ko was, in fact, her boyfriend. (QMC 56.1 ¶ 15; Pl. 56.1-QMC ¶ 15.) Plaintiff admits that Adkins did not like people he felt were loyal to Dr. Ko. (Pl. Dep. 60:8-61:7, 76:20-77:16.)
Although Adkins' comments were vulgar and inappropriate, even when drawing all inferences in favor of the Plaintiff, there is no evidence that Adkins' outburst on May 15, 2008, was related to the prior incidents or that the remarks were gender based. (See infra Part II.c.ii.) To the contrary, Adkins' outburst was context specific and was motivated by his anger towards Plaintiff and other members of the staff for endangering the patient and risking Adkins' job. (Def. PH 56.1 ¶ 23; Def. QMC 56.1 ¶ 14; Adkins Dep. 52:5-24; Pl. Combined 56.1 ¶¶ 82-84, 86, 88-90.) According to Plaintiff, "Adkins was afraid that he would not survive ... long term in his position" at Queens Medical Center if the CEO became upset with him. (Pl. Combined 56.1 ¶ 82.) According to Adkins, there were "a lot of political issues surrounding [the] cardiac surgery programs," and he was concerned that if his team's performance was not "up to standards," the CEO of Queens Medical Center would be "very upset." (Adkins Dep. 56:11-57:9; see also Pl. Combined 56.1 ¶ 82.) Adkins' comments during the May 15, 2008 operating room incident, although offensive and inappropriate, bear no relation to Adkins' prior conduct, and Plaintiff's conclusory allegations that all of Adkins' offensive actions formed one ongoing hostile work environment are insufficient to establish a continuing violation. See Deras v. Metropolitan Transp. Auth., No. 11-CV-5912, 2013 WL 1193000, at *7 (E.D.N.Y. Mar. 22, 2013) (finding that the plaintiff's conclusory allegations were insufficient to trigger the continuing violation doctrine); Askew v. New York, No. 09-CV-553, 2013 WL 450165, at *7 (N.D.N.Y. Feb. 6, 2013)
Under the NYSHRL and the NYCHRL, the statute of limitations is three years, see N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8-502(d); see also Sotomayor v. City of New York, 862 F.Supp.2d 226, 248-49 (E.D.N.Y.2012), aff'd, 713 F.3d 163 (2d Cir.2013), but is tolled during the pendency of a complaint before an administrative body, Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247, 2013 WL 1232355, at *6 (E.D.N.Y. Mar. 26, 2013). See also DeNigris v. N.Y.C. Health & Hosps. Corp., 861 F.Supp.2d 185, 192 (S.D.N.Y.2012) ("Claims brought under the NYSHRL and NYCHRL are subject to a three-year statute of limitations, which is tolled for the period between the filing of an EEOC charge and the issuance by the EEOC of a right-to-sue letter."); Wilson v. N.Y.C. Police Dep't, No. 09-CV-2632, 2011 WL 1215735, at *4 (S.D.N.Y. Mar. 25, 2011) ("Courts in this circuit have held that the statute of limitations applicable to claims under NYCHRL and NYSHRL is tolled during the period in which the complaint is filed with the EEOC."); Butler v. N.Y. Health & Racquet Club, 768 F.Supp.2d 516, 536 (S.D.N.Y.2011) (filing a complaint with the EEOC was sufficient to toll the statute of limitations on the state claims).
Plaintiff filed her EEOC complaint against Presbyterian Hospital and Queens Medical Center on September 16, 2008. Plaintiff received her right to sue letter on September 29, 2009, which ended Plaintiff's tolling period. See DeNigris, 861 F.Supp.2d at 192 (explaining that the NYSHRL and NYCHRL three-year statute of limitations is tolled "between the filing of an EEOC charge and the issuance by the EEOC of a right-to-sue letter");
With regard to Plaintiff's state and city law claims against Adkins, the Honorable Dora L. Irizarry determined the expiration of the statute of limitations to be May 19, 2010, the date Plaintiff served Adkins with the Second Amended Complaint, making timely all claims that accrued as of May 19, 2007.
Plaintiff has failed to sufficiently establish a Title VII hostile work environment claim against Presbyterian Hospital or Queens Medical Center. In order to establish a hostile work environment claim under Title VII, a plaintiff must produce evidence that the complained of conduct "(1) is objectively severe or pervasive — that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's sex, or another protected characteristic." Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir.2012) (internal quotation marks omitted) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007)). To withstand summary judgment, Plaintiff must produce evidence that "the workplace was `so severely permeated with discriminatory intimidation, ridicule, and insult, that the terms and conditions of her employment were thereby altered.'" Mills v. S. Conn. State Univ., 519 Fed.Appx. 73, 75 (2d Cir. 2013) (quoting Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir.2013)). If an incident is sufficiently severe, one incident may support a claim for hostile work environment. See Das v. Consol. Sch. Dist. of New Britain, 369 Fed.Appx. 186, 189-90 (2d Cir.2010). Otherwise, "incidents
In addition, in order to establish employer liability for hostile actions taken by employees, a plaintiff must establish that the hostile work environment can be imputed to the employer. See Vance v. Ball State Univ., 570 U.S. ___, ___, 133 S.Ct. 2434, 2443, 186 L.Ed.2d 565 (2013) (explaining under what circumstances an employer may be held liable for harassment by an employee); Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir.2013) ("In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer." (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.2009))); Smith v. HBO, No. 12-CV-2177, 2013 WL 2285185, at *2 (E.D.N.Y. May 22, 2013) ("Plaintiff must also plead enough facts that the hostile work environment can be imputed to the employer in order to establish employer liability for hostile actions taken by its employees."). Where the harasser is a supervisor, an individual "empowered to take tangible employment actions against the victim," and "the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable." Vance, 570 U.S. at ___, 133 S.Ct. at 2439. However, where the harasser is a co-worker, "the employer is liable only if it was negligent in controlling working conditions." Id.
While "the central statutory purpose [of Title VII was] eradicating discrimination in employment, Title VII does not set forth a general civility code for the American workplace." Redd, 678 F.3d at 176 (alteration in original) (internal quotation marks omitted) (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 771, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) and Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). The Second Circuit distinguishes between "[complaints of] sexual assaults; [other] physical contact[, whether amorous or hostile, for which there is no consent express or implied]; uninvited sexual solicitations; intimidating words or acts; [and] obscene language or gestures" and "the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers," which are not protected under the law. Redd, 678 F.3d at 177 (alterations in original) (citations omitted). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "Isolated incidents generally will not suffice to establish a hostile work environment unless they are extraordinarily severe." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir.2010). "In other words, `[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Illiano v. Mineola Union Free Sch. Dist., 585 F.Supp.2d 341, 350 (E.D.N.Y.2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). A plaintiff may only recover on a hostile work environment claim if the hostile work environment occurs because of an employee's protected characteristic, such as her gender. Rivera v. Rochester Genesee Regional
As discussed above, all of the alleged events, except for the May 15, 2008 operating room incident, occurred outside the Title VII statute of limitations period, and Plaintiff cannot avail herself of the continuing violation doctrine. Plaintiff's Title VII claim may nevertheless survive dismissal if Plaintiff can show that there is a triable issue of fact as to whether the May 15, 2008 operating room incident was sufficiently severe to create a hostile work environment. See Summa, 708 F.3d at 126 (explaining that Second Circuit case law "establishes that a single incident can create a hostile environment if it is sufficiently severe"); McGullam, 609 F.3d at 79 ("[The plaintiff's] claim nevertheless might survive summary judgment if there were a triable issue as to whether the sole non-trivial incident occurring within the limitations period was itself of sufficient severity to support a hostile work environment claim (albeit a truncated claim premised on that single incident)." (citing Howley v. Town of Stratford, 217 F.3d 141, 148, 153-56 (2d Cir.2000))); Howley, 217 F.3d at 153-56 ("Usually, a single isolated instance of harassment will not suffice to establish a hostile work environment unless it was `extraordinarily severe.' Thus, the plaintiff must demonstrate `either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.'" (citations omitted)).
Plaintiff has failed to demonstrate that the May 15, 2008 operating room incident was severe and that Adkins treated her differently during the May 15, 2008 operating room incident because of her gender. It is undisputed that during the operating room incident, Adkins used profanities to express his anger towards Plaintiff. (Def. PH 56.1 ¶ 23; Def. QMC 56.1 ¶ 14; Adkins Dep. 52:5-24; Pl. Combined 56.1 ¶¶ 82-84, 86, 88-90.) According to Plaintiff, he verbally attacked her, yelling such things as: "Don't you ever f*cking do that again." (Pl. Aff. ¶ 64.) He screamed and yelled in a vulgar manner, cursing approximately twenty times.
While Plaintiff alleges that some of Adkins' curses were sexual in nature — he used the term "f*ck" or "f*cking," and asked Plaintiff whether "this" was her plan to get her "f*cking Chinese boyfriend back here," referring to Dr. Ko, his predecessor, (Pl. Aff. ¶¶ 64-66) — Plaintiff concedes that the term "f*ck" could be used in different contexts and admits that she did not believe Adkins was "inferring" that Dr. Ko was, in fact, her boyfriend. (Def. QMC 56.1 ¶ 15; Pl. 56.1-QMC ¶ 15; Pl. Dep. 550:2-20.) Plaintiff admitted that Adkins did not like people he felt were loyal to Dr. Ko, and that was why she had an "intuition" that he would blame her for the problem in the operating room on May
Since Plaintiff has not identified a single specific instance within the relevant statute of limitations period in which she was treated differently on account of her gender, she cannot sustain a Title VII hostile work environment claim, and this claim is dismissed. See, e.g., Johnson v. City of New York, No. 10-CV-6294, 2012 WL 1076008, at *8 (S.D.N.Y. Mar. 28, 2012) (granting defendants summary judgment on plaintiff's hostile work environment claim because plaintiff "presented no evidence that he was subject to any discrimination based on his [protected status] within the statute of limitations time frame"); Stathatos v. Gala Res., LLC, No. 06-CV-13138, 2010 WL 2024967, at *4 (S.D.N.Y. May 21, 2010) (granting defendants' motion for summary judgment on plaintiff's racially based hostile work environment Title VII claim because she did not allege that any of the conduct giving rise to that claim occurred within the statute of limitations period). In addition, for the reasons discussed below, even if the Court were to consider all of the alleged conduct, including the conduct outside the applicable Title VII statute of limitation period but within the NYSHRL and NYCHRL statute of limitations period that is supported by admissible evidence, Plaintiff nevertheless could not survive summary judgment on her Title VII hostile work environment claim.
NYSHRL hostile work environment claims are analyzed under the same standard as Title VII hostile work environment claims. See Summa, 708 F.3d at 123-24 ("Hostile work environment claims under both [federal law] and the NYSHRL are governed by the same standard." (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006))); see also Rivera, 702 F.3d at 693 n. 4 (explaining that the same standards that applied to the plaintiff's Title VII hostile work environment claim also applied to his hostile work environment claim arising under the NYSHRL). The NYCHRL does
As discussed above, Plaintiff may bring NYCHRL and NYSHRL hostile work environment claims against Presbyterian Hospital and Queens Medical Center based on acts that occurred on or after November 24, 2005 and against Adkins based on acts that occurred on or after May 19, 2007. (See supra Part II.b.ii.) Therefore, Plaintiff's claims under the NYCHRL and the NYSHRL will be analyzed to include the references by Adkins to chest tubes as "a pair of 36s" and "mister softie," the two physical incidents in the perfusionist's office in October 2007 where Plaintiff asserts Adkins interacted inappropriately with her, and the May 15, 2008 operating room incident. (Pl. Opp'n 20.)
Under the NYCHRL, a plaintiff need not establish that the conduct was severe or pervasive, only that "she has been treated less well than other employees because of her gender." Mihalik, 715 F.3d at 110; see also Kolenovic v. ABM Indus. Inc., 361 Fed.Appx. 246, 248 (2d Cir.2010) (holding that NYCHRL hostile work environment claims should not be analyzed under the "severe or pervasive" standard but a more liberal standard (citing Loeffler, 582 F.3d at 278)); Kerman-Mastour, 814 F.Supp.2d at 365-66 (explaining that under NYCHRL, "in cases where an employee argues that he or she was subjected to a hostile work environment, plaintiffs need not prove that the atmosphere was `severe or pervasive,' a showing they are required to make under Title VII"). However, "the NYCHRL, like Title VII and the NYSHRL, is still not a general civility code, and petty slights and trivial inconveniences are not actionable." Davis-Bell, 851 F.Supp.2d at 671 (internal quotation marks omitted); see also Bermudez, 783 F.Supp.2d at 579 (explaining that under NYCHRL, conduct need not be "severe or pervasive" to constitute a hostile work environment, although "`petty, slight, or trivial inconvenience[s]' are not actionable" (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38-42, 61 A.D.3d 62 (2009))). Isolated incidents of unwelcome verbal and physical conduct have been found to constitute the type of "petty slights and trivial inconveniences" that are not actionable even under the more liberal NYCHRL standard. See, e.g., Magnoni v. Smith & Laquercia, LLP, 701 F.Supp.2d 497, 505-06 (S.D.N.Y.2010) (finding that the plaintiff could not sustain
Moreover, a plaintiff must still establish that she suffered a hostile work environment because of her gender. See, e.g., Margherita v. FedEx Exp., 511 Fed. Appx. 71, 72 (2d Cir.2013) (finding that there was no evidence that plaintiff suffered a hostile work environment because of his protected status "even under the broad and liberal construction of the NYCHRL"); Lennert-Gonzalez v. Delta Airlines, Inc., No. 11-CV-1459, 2013 WL 754710, at *8 (S.D.N.Y. Feb. 28, 2013) (dismissing on summary judgment the plaintiff's NYCHRL hostile work environment claim because the plaintiff had failed to show that any incidents were based on animus directed towards plaintiff's protected class rather than "[p]ersonal animus"); Rozenfeld v. Dep't of Design & Const. of N.Y.C., 875 F.Supp.2d 189, 209-10 (E.D.N.Y.2012) (holding that the few instances alleged by the plaintiff did not demonstrate animus and were too minor to meet NYCHRL's hostile work environment standard); Sotomayor, 862 F.Supp.2d at 261 (dismissing plaintiff's NYCHRL hostile work environment claim because "plaintiff cannot show that a hostile work environment was created `because of her race, age, or national origin'"); Bermudez, 783 F.Supp.2d at 579 ("[T]o survive summary judgment [on her NYCHRL hostile work environment claim], [the plaintiff] need only adduce evidence of `the existence of unwanted gender-based conduct' because liability under NYCHRL is `determined by the existence of unequal treatment.'" (quoting Williams, 872 N.Y.S.2d at 38-39)).
In support of her hostile work environment claim, Plaintiff alleges that Adkins would repeatedly ask for a pair of 36 chest tubes as a "pair of 36s," while holding his hands "as if he were grabbing a woman's breasts," and refer to a different chest tube as "mister softie."
Considering the totality of these circumstances, a reasonable jury could not find that Plaintiff was treated less well than other employees because of her gender. Plaintiff admits that Adkins directed the "pair of 36s" and "mister softie" references to the entire operating room staff, not just to Plaintiff and not just to women. (Pl. Dep. 370:12-371:3.) Similarly, Adkins cursed at the entire staff, including Dr. Yu, a male staff member, during the May 15, 2008 operating room incident. Thus, there is no evidence from which a reasonable jury could find a violation of the NYCHRL based on this conduct. See Mihalik, 715 F.3d at 110 ("It is not enough [under the
To the extent Plaintiff complains of the curses by Adkins specifically directed towards her, she has failed to demonstrate that Adkins' conduct on the day of the operating room incident was gender based. As previously discussed, although many of Adkins' profanities during the May 15, 2008 operating room incident were directed at Plaintiff, the evidence establishes that Adkins directed more of his profanities at Plaintiff than at other staff members because she had left the operating room, not because of her gender. (See infra Part II.c.) See Casalino v. N.Y.S. Catholic Health Plan, Inc., No. 09-CV-2583, 2012 WL 1079943, at *8-9 (S.D.N.Y. Mar. 30, 2012) (finding that the plaintiff failed to state a NYCHRL hostile work environment claim, even though she claimed that her supervisor "berated her and frightened her, [and] reduced her to tears to the point where she could not leave her office," because she failed to raise an inference that the conduct occurred because of her gender); Davis-Bell, 851 F.Supp.2d at 678 (finding that the plaintiff's supervisor yelling at a subordinate, also in plaintiff's protected class, to return to where she was supposed to be on a particular day, "[w]hile certainly not a polite way to treat subordinates," did not establish that the supervisor harbored discriminatory animus under NYCHRL); Short v. Deutsche Bank Sec., Inc., 913 N.Y.S.2d 64, 67, 79 A.D.3d 503 (2010) (finding that plaintiff's complaints about the manager's conduct in the workplace — e.g. that the manager "tried to push [the plaintiff] out by not talking to her, [and] criticizing her unfairly" — were "nothing more than non-actionable petty slights and minor inconveniences, which in any event may be viewed by a reasonable employee as a function of the manager's personal management style, unrelated to gender discrimination").
Adkins may have said offensive and inappropriate comments, acted inappropriately on occasion, and may have been a difficult person to work with, but there is no evidence he created an environment that was particularly difficult for women, subjected Plaintiff to unwanted sexual attention, or otherwise treated Plaintiff "less well" because she was a woman. See Mihalik, 715 F.3d at 110 (explaining that under the NYCHRL, a plaintiff "must show that she has been treated less well at least in part `because of her gender'" (quoting Williams, 872 N.Y.S.2d at 39-40 n.27)); Petrisch v. HSBC Bank USA, Inc., No. 07-CV-3303, 2013 WL 1316712, at *17-18 (E.D.N.Y. Mar. 28, 2013) (finding that plaintiff's evidence "fail[ed] to give rise to an inference that she was treated unequally because of her protected characteristics" and therefore failed to raise a genuine issue of material fact regarding plaintiff's NYCHRL "hostile work environment claim"). Plaintiff has failed to raise a genuine issue of fact as to whether she was discriminated against because of her gender, and therefore cannot establish a discrimination claim under the NYCHRL. See Gelin v. City of New York, No. 10-CV-5592, 2013 WL 2298979, at *12-13 (E.D.N.Y. May 24, 2013) (finding that plaintiff's NYCHRL hostile work environment claim failed because she did not offer "any evidence establishing that she was treated less well because of her ... gender"); Davis-Bell, 851 F.Supp.2d at 671 (finding that the plaintiff failed to raise a triable issue of fact as to whether the plaintiff "ha[d] been treated less well than other employees because of her gender" under the NYCHRL); Casalino, 2012 WL 1079943, at *8-9 ("A NYCHRL hostile work environment claim requires that
As discussed above, the standard for evaluating NYSHRL claims is the same as the standard for evaluating Title VII hostile work environment claims. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir.2013) ("The standards for evaluating hostile work environment ... claims are identical under Title VII and the NYSHRL." (citing Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000))); Summa, 708 F.3d at 123-24 ("Hostile work environment claims under both Title VII and the NYSHRL are governed by the same standard." (citing Schiano, 445 F.3d at 609)). Title VII and NYSHRL claims are subject to a higher standard than NYCHRL claims. See Mihalik, 715 F.3d at 109 (explaining that NYCHRL standards are broader than federal and state law standards); Bermudez, 783 F.Supp.2d at 579 ("The standard for maintaining a hostile work environment claim is lower under the NYCHRL."). Therefore, where a plaintiff cannot sustain a claim pursuant to the broader NYCHRL standard, the plaintiff's NYSHRL and Title VII claims also fail.
Based on the evidence before the Court, Plaintiff cannot sustain a claim pursuant to the NYCHRL, and therefore the Court grants Defendants' summary judgment motions as to Plaintiff's NYCHRL and NYSHRL hostile work environment claims.
At oral argument, the Court granted Defendants' motions for summary judgment as to Plaintiff's retaliation claims under Title VII, NYSHRL and NYCHRL. Under the Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar, "Title VII retaliation claims must be proved according to traditional principles of but-for causation.... This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." 570 U.S. ___, ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (emphasis added). As explained on the record, Plaintiff cannot establish that she would not have been terminated following the operating room incident in May 2008 had she not previously complained about Adkins' inappropriate behavior as required by Nassar. The Court now explains more fully the reason for its decision to dismiss Plaintiff's NYSHRL and NYCHRL retaliation claims.
Traditionally, "[t]he standards for evaluating ... retaliation claims are identical under Title VII and the NYSHRL." Kelly, 716 F.3d at 14 (citing Weinstock, 224 F.3d at 42 n. 1); Vandewater v. Canandaigua Nat. Bank, 893 N.Y.S.2d 916, 70 A.D.3d 1434 (2010) ("It is well settled that the federal standards under [T]itle VII of the Civil Rights Act of 1964 are applied to determine whether recovery is warranted under the Human Rights Law." (citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 330, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004))); Forrest, 3 N.Y.3d at 330, 786 N.Y.S.2d 382, 819 N.E.2d 998 (stating that "[b]ecause both the [New York State] Human Rights Law and [T]itle VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also
Under the NYCHRL, retaliation claims, similar to discrimination claims, are viewed under a broader interpretation than Title VII and NYSHRL and must be analyzed independently. See Mihalik, 715 F.3d at 112 (explaining the standard for evaluating retaliation claims under the NYCHRL). Section 8-107(7) of the NYCHRL prohibits employers from "retaliat[ing] ... in any manner against any person because such person has ... opposed any practice forbidden under this chapter." N.Y.C. Admin. Code § 8-107(7). Prior to Nassar, the Second Circuit explained that, in order "to prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action." Mihalik, 715 F.3d at 112 (citations omitted). Although the NYCHRL retaliation provision contains the same "because" language as the Title VII and NYSHRL provisions, the City Council has established two new rules of construction for interpreting NYCHRL claims:
Mihalik, 715 F.3d at 109 (alteration in original) (citations and internal quotation marks omitted). Since "the NYCHRL has been amended to abolish the parallelism between the [NYCHRL] and federal and state anti-discrimination law," Noel v. BNY-Mellon Corp., 514 Fed.Appx. 9, 11 (2d Cir.2013), and is interpreted according to its own rules of construction, the Court does not apply the Nassar but-for causation standard to Plaintiff's NYCHRL retaliation claim. However, a plaintiff must still establish that there was a causal connection between her protected activity and the employer's subsequent action, and must show that a defendant's legitimate reason for her termination was pretextual or "motivated at least in part by an impermissible motive." Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789, 792, 108 A.D.3d 739, 741 (App.Div.2013).
Plaintiff argues that she was terminated on May 28, 2008, for filing a formal complaint against Adkins on May 22, 2008. As explained on the record, Plaintiff's argument rested on the temporal proximity between her complaints and her termination, and even under the lower "motivating factor" standard, "temporal proximity" is insufficient to establish that her termination resulted, at least in part, from the filing of her complaint. See Ben-Levy v. Bloomberg, L.P., 518 Fed.Appx. 17, 19-20 (2d Cir.2013) (explaining that, where plaintiff's retaliation claim was based just on temporal proximity, the plaintiff failed to provide evidence from which a reasonable jury could conclude that the defendant was motivated by retaliation, and therefore his NYCHRL claim failed, even though the NYCHRL is reviewed "independently from and more liberally than" federal or state discrimination claims). Defendants demonstrated a legitimate reason for terminating Plaintiff's employment: Plaintiff left the operating room while a patient was undergoing surgery, having been warned and disciplined for similar behavior on a prior occasion. Moreover, Defendant has presented evidence that the decision to terminate Plaintiff was made prior to Plaintiff's oral and written complaint to Bautista following the May 15, 2008 operating room incident. (Def. PH 56.1 ¶¶ 31-32, 34-35; Bautista Dep. 22:5-12, 26:1-27:19.) See Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 42, 98 A.D.3d 107 (2012) ("[A]n employer's continuation of a course of conduct that had begun before the employee complained does not constitute retaliation because, in that situation, there is no causal connection between the employee's protected activity and the employer's challenged conduct."); see also Mihalik, 715 F.3d at 115 (inquiring into whether the plaintiff's supervisor intended to fire the plaintiff before she complained about his behavior when evaluating the plaintiff's NYCHRL retaliation claim).
Based on the evidence before the Court, no reasonable jury could find that Plaintiff was terminated because of her complaint about Adkins. See Brightman, 970 N.Y.S.2d at 792, 108 A.D.3d at 741 (holding that plaintiff's "unsupported assertion that the ... defendants' nonretaliatory reasons for the challenged actions were pretextual was insufficient to raise a triable issue of fact" regarding the NYCHRL claim); Bryant v. Merrill Lynch, Pierce, Fenner & Smith, No. 12-CV-2940, 2013 WL
For the reasons discussed above, the Court grants Defendants' motions for summary judgment.
