PAMELA K. CHEN, District Judge:
On January 6, 2011, Plaintiff Susan Augustus, acting pro se, filed her complaint against Defendant AHRC Nassau, her former employer, pursuant to Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq. ("Title VII"), and the Family and Medical Leave Act of 1993, codified at 29 U.S.C. § 2601 et seq. ("FMLA"). In this action, Plaintiff alleges that: (1) AHRC Nassau discriminated against her on the basis of race by imposing stricter performance standards on her than her Caucasian co-workers, which resulted in a series of disciplinary actions and ultimately her termination; and (2) AHRC Nassau retaliated against her in a similar manner based on Plaintiff's advocacy on behalf of a pregnant client regarding the client's FMLA rights. (Dkt. 1 ("Compl.") at 2-3; Trial Transcript ("Tr.") at 5-8 (Plaintiff's opening statement)).
On August 17-19, 2013, the Court conducted a three-day bench trial in this action. Plaintiff testified on her own behalf and called five other witnesses, all current or former employees of AHRC Nassau. Defendant cross-examined Plaintiff's witnesses, most of whom Defendant had intended to present as its own witnesses. Defendant did not call any additional witnesses in its case. Both parties introduced, and adduced testimony about, numerous documentary exhibits.
The Court makes the following findings of fact and conclusions of law. Only those facts the Court deems necessary for the resolution of the remaining claim will be discussed.
AHRC Nassau is an organization based in Nassau County, New York, that provides services for children and adults with intellectual disabilities. (Tr. at 226-27.) AHRC Nassau provides a wide range of services that includes schooling and other educational programs, residential programs, vocational training, and employment services. (Tr. at 227-29.) In addition to assisting AHRC Nassau clients find and maintain employment in the community, AHRC Nassau operates vocational centers where clients work and learn job skills that they can use in the community. (Tr. at 228-29.) AHRC Nassau employs approximately 3,000 people. (Tr. at 228.)
On January 7, 2008, Plaintiff began working at AHRC Nassau as an Employment Training Specialist ("ETS") 1 in the Supported Employment Program ("SEP") unit. (Tr. at 53, 355); Joint Pretrial Order ("JPTO")
Christina Murgola, the Program Administrator for the SEP unit, and Desiree Linder
Plaintiff worked at AHRC Nassau for a year and eleven months. (JPTO at 3.) During that time, Plaintiff had two direct supervisors: Linder and Dana Simons. Linder was Plaintiff's supervisor between January 2008 and approximately August 2009. (Tr. at 32.) Simons was Plaintiff's supervisor between August 2009 and November 2009. Id. In addition, Murgola intermittently filled in as Plaintiff's direct supervisor. (Tr. at 437.) Linder, Simons, Murgola, and Maynard are white.
Plaintiff had a caseload of developmentally disabled individuals ("clients"). (JPTO at 3.) Plaintiff "loved" her job. (Tr. at 17.) She came to work early, and worked on weekends. Id. She went
In May 2008, after approximately five months on the job, Plaintiff received her first performance evaluation, which was positive. (Pl. Ex. 3.) Of the 40 performance indicators, Plaintiff received a rating of "Meets Expectations" for 31, "Above Expectations" for eight, and "Not Applicable" for one. (Id. at 2-3.) Among the criteria for which Plaintiff received an "Above Expectations" rating were: "Utilizes time effectively;" "Displays initiative;" and "Follows agency code of conduct policy and procedure." (Id. at 3.) The evaluation also was replete with positive comments, including that Plaintiff was (1) "eager to broaden her understanding of her current responsibilities;" (2) "open to suggestions and [] receptive to supervisory feedback;" (3) "kind and considerate to her peers and individuals in our program;" and (4) "able to complete work in a timely and thorough manner;" and that she (5) use[s] initiative to clarify any uncertainties." (Id. at 2-3.) The "Overall Comments" section of the evaluation read: "Ms. Augustus has demonstrated an overall good work ethic and positive attitude. She is able to effectively utilize her time to provide support and assistance to peers and program participants. Ms. Augustus is a responsible and dependable employee. She is a welcomed addition to the Supported Employment program." (Id. at 3.) Although the evaluation was overwhelmingly positive, the evaluation did set forth as a goal and recommendation that Plaintiff "keep the lines of communication open when considering the relevant professional staff involved in an individual[']s support team." (Id. at 3.)
Linder, who was Plaintiff's immediate supervisor at the time, prepared the May 2008 evaluation. (Tr. at 825-26.) Linder, Murgola, and Maynard all signed the evaluation. (Pl. Ex. 3 at 3.) Murgola and Maynard added handwritten notes to the evaluation thanking Plaintiff, respectively, for her "dedication" and "all you do!" (Id.)
Around the same time as her May 2008 evaluation, Plaintiff began receiving requests from her supervisors to improve her communication with them about her time and her whereabouts. (Pl. Ex. 8.) At support meetings held on May 16, 2008, July 24, 2008, and September 3 and 4, 2008, Plaintiff was advised of the need to keep her supervisors apprised of her whereabouts in a timely manner. (Pl. Exs. 8 and 45; Tr. at 269, 290, 519, 825-826.) During the support meeting in May 2008, Linder specifically discussed with Plaintiff the need to call Linder on the day she is sick if she is not coming to work. (Tr. at 821.) The items addressed at each support meeting were recorded in written minutes, which were signed by Plaintiff. (Pl. Ex. 45). The meeting minutes for July 24, 2008 included the item, "Outlook calendar, schedule adjustment. Please notify myself [Linder] or Christina [Murgola] if you change your agenda." (Pl. Ex. 45 at
On September 22, 2008, Plaintiff received her first Counseling Memorandum
The September 22 Counseling Memorandum, which was directed to Plaintiff from Linder, stated, in part:
Id. (emphasis added).
Between September 2008 and January 2009, there were no instances of Plaintiff's whereabouts being unaccounted for. (Tr. at 777.)
In January 2009, Plaintiff received her second performance evaluation, after having worked a full year at AHRC Nassau. Linder prepared Plaintiff's evaluation on or about January 6, 2009, and reviewed it with Plaintiff on January 22, 2009. (Tr. at 60-61; JPTO at 4; Pl. Ex. 4.)
The evaluation also noted issues with communication: (1) "at times communication needs to be reinforced;" (2) "Ms. Augustus needs to continue to inquire when responsibilities are uncertain and keep her supervisor updated of changes/concerns regarding her caseload or schedule;" and (3) "Ms. Augustus needs to keep lines of communication open so that agency personnel, family members, and outside advocates are aware of any changes or updates." Id. at 1-2. During the review of Plaintiff's evaluation, Linder and Plaintiff discussed the need for Plaintiff to keep her supervisors aware of changes in her schedule, "but Plaintiff did not think the issue was that big a deal." (JPTO at 4; Tr. 60-61.)
On January 23, 2009, the day after her performance evaluation review, Plaintiff arrived to work late, following a doctor's appointment. (Tr. at 61, 826.) Because she had forgotten about the appointment, Plaintiff did not notify Linder until 9:00 that morning, via voicemail, that she (Plaintiff) had a doctor's appointment from 9:00 a.m. to 12:00 p.m. (Tr. at 61-62, 245; JPTO at 4.) However, Plaintiff arrived at work at 2:00 p.m., and did not call to advise Linder that she would be later than expected. Id.
Linder met with Plaintiff after she arrived at work to discuss Plaintiff's failure to account for her time between 12:00 and 2:00 p.m. Linder initially did not intend to issue a Written Supervision.
After the January 23 meeting, Linder prepared a Written Supervision ("First Written Supervision"), which was provided to Plaintiff on January 26, 2009. Linder and Maynard met with Plaintiff the same day to discuss the First Written Supervision. During the meeting, Linder noted that she and Plaintiff had spoken numerous times about communication. (Pl. Ex. 7.)
The First Written Supervision noted that Plaintiff's "work time was unaccounted for [for] a time span of 2 hours" on January 23, 2009. (Pl. Ex. 8.) It also noted the September 2008 Counseling Memorandum that Plaintiff had received based on her failure to account for her schedule. The First Written Supervision set forth several requirements for "immediate and consistent improvement," including that Plaintiff "physically speak with her supervisor should [she] be late or absent." Id.
Plaintiff did not seek to formally rebut the First Written Supervision because she did not believe, at that time, that it was motivated by any improper purpose. (Tr. at 109-10; JPTO at 4.)
On January 28, 2009, two days after receiving the First Written Supervision, Plaintiff did not come to work due to weather conditions and a back injury she suffered while shoveling snow. (Tr. at 31, 103; JPTO at 4.) Plaintiff left two voicemail messages on Linder's office phone, the first one indicating that she (Plaintiff) would be late due to the weather and the second, at approximately 9:00 a.m., indicating that she would not be coming to work at all that day. (Tr. at 104, 846; JPTO at 4.) Linder received the two messages, and called the Plaintiff, who did not answer. Id. Linder left a voicemail asking Plaintiff to return the call. Id. Approximately two hours later, Plaintiff left a third voicemail message indicating that she would like to take a sick day. Id. Linder and Plaintiff did not speak directly that day. Id.
On January 29, 2009, Plaintiff received a second Written Supervision ("Second Written Supervision") based on the events of the day before. (Pl. Ex. 21.) The Second Written Supervision was based on Plaintiff's failure to follow the directive from the First Written Supervision that Plaintiff "physically speak with her supervisor should she be late or absent." Id. The Second Written Supervision explained that "[t]his communication must be done person to person[,] not by means of a message[.]" Id. It further noted that, in the event her direct supervisor is unavailable, Plaintiff may speak to another supervisor or ask to have an administrator paged to the operator. Id.
Linder believed the Second Written Supervision was necessary because Plaintiff had been directed in the First Written Supervision to physically speak to a supervisor if she was going to be late or absent, and yet only days later, left Linder voicemail messages about being late and absent, and failed to take steps to ensure that she (Plaintiff) actually spoke to Linder. (Tr. 245-49, 831; Pls. Ex. 8.) Plaintiff could have called Linder on Linder's cell phone; Linder had given her cell phone number to all of the ETSs, including Plaintiff. (Tr. 66, 798, 831.) Plaintiff did not seek to have the AHRC Nassau switchboard operator page Linder on January 28, 2009, even though she was aware that she could have done so; nor did she attempt to speak to another supervisor. (Tr. 66-70.)
Plaintiff did not seek to rebut the Second Written Supervision because "being naïve," she did not believe it was necessary at the time. (Tr. at 109-10; JPTO at 4.)
Plaintiff's conduct in late January 2009
Plaintiff maintains that the adverse employment actions against her, starting with the two Written Supervisions in late January 2009, were taken in retaliation for Plaintiff's advocacy for A.M.'s rights under the FMLA. The timing of Plaintiff's and AHRC Nassau's discovery about A.M.'s pregnancy is therefore relevant to this claim.
Plaintiff recalls that she learned that her client, A.M., was pregnant in January 2009. (Tr. at 25, 46.) Her recollection of the timing is based largely on an email dated February 4, 2009 that she sent to her supervisors about a therapy appointment for A.M. the day before. According to Plaintiff, the need for A.M.'s therapy was prompted by her pregnancy, and Plaintiff's reference in the email to it being impractical and unsafe for A.M. to walk to the therapist's office from the train station "in her condition" was a reference to A.M.'s pregnancy. (Tr. at 49-50; Pl. Ex. 59.)
However, two Consumer Monthly Progress Reports ("Monthly Reports") prepared by Plaintiff relating to A.M. indicate that AHRC Nassau did not learn of A.M.'s pregnancy until February 2009. (Tr. at 349-55; Def. Ex. KK.) The first report was for January 2009 ("January Monthly Report") and was completed on February 2, 2009, and the second report was for the month of February 2009 ("February Monthly Report"), and was completed on March 2, 2009. Id. In the January Monthly Report, there is no mention of A.M.'s pregnancy. (Tr. at 354-55; Def. Ex. KK at 1-2.) But, in the February Monthly Report, Plaintiff wrote, "This month [the Supported Employment Program] found out that [A.M.] is pregnant." (Tr. at 355; Def. Ex. KK at 3) (emphasis added).
In addition, an email sent by Plaintiff to Linder and Murgola on March 13, 2009, Plaintiff stated that when visiting A.M. "last evening, I found out that she is due in August." (Def. Ex. Y.) Based on her recollection of receiving this email in March 2009, Linder believes that she learned about A.M.'s pregnancy in February 2009. (Tr. at 795-96.)
The Court finds that AHRC Nassau learned of A.M.'s pregnancy in February 2009, even if Plaintiff learned this fact earlier. Although the February 4, 2009
On April 10, 2009, Murgola met with the ETSs, including Plaintiff, to discuss the importance of proper and timely documentation of the services that they provide to clients, as set forth in AHRC Nassau's policies. The ETSs were informed about the requirement that they document their services within 24 hours and that exceptions had to be approved by the Program Administrator. (Tr. at 78-80; JPTO at 4; Def. Ex. H.)
On June 10, 2009, Plaintiff delivered a service to a client, but did not complete the documentation until June 12, 2009. (Pl. Ex. 28.) Plaintiff self-reported her failure to timely prepare the documentation, explaining that there was no folder on the network for the client. Id. Plaintiff back-dated the documentation to June 10, 2009. (Tr. at 173, 262.)
On June 15, 2009, a Counseling Memorandum was issued to Plaintiff for the untimely documentation of services. (Pl. Ex. 28; JPTO at 4.) The memorandum recounted the meeting between Murgola and Plaintiff to discuss the documentation issue, and also explained that, in addition to the untimely documentation, Plaintiff failed to notify her supervisor within the required timeframe of the late submission. (Pl. Ex. 28.) The memorandum further advised Plaintiff that immediate improvement was expected. Id.
In June 2009, Plaintiff also received two "You Make the Difference" awards, the first for her "willingness to help when needed" and the second in recognition for going "above and beyond her employment responsibilities" to help a client. (Pl.'s Ex. 47; Tr. at 839-40.) The second award noted that Plaintiff "set a wonderful example of what matters the most." Id.
On August 7, 2009, Plaintiff received a third Written Supervision ("Third Supervision"), which was based on Plaintiff's self-reported failure to document services that had been provided two weeks before. (Tr. at 82-85; Pl. Ex. 30; JPTO at 4.)
Maynard met with Plaintiff on or about August 12, 2009, following Plaintiff's receipt of the Third Written Supervision, to see if there was anything Plaintiff needed to help her in her job. (Tr. at 476, 506; Pl. Ex. 29) (Maynard stating in her File Note: "I felt it necessary to personally meet with Susan to discuss concerns and hear from her what if anything she may need to be successful."). At trial, Maynard testified: "I wanted to see how the plaintiff, how Susan was feeling. I wanted to know what was going on. I wanted to extend what — what would you need, is there anything that you need to help you in your position. I was concerned that there were issues .... I really wanted to speak with Susan personally and see what, if anything, she might need." (Tr. at 506.)
During the meeting, Maynard told Plaintiff, among other things, that "it was the desire of the agency to retain her due to her skills and to do everything possible to assist her to be as successful as possible." (Pl. Ex. 29.) Plaintiff told Maynard that she "appreciated this news," but also expressed her concerns and frustrations, including, among others, that she had wanted to better her position, but felt it was no longer possible given the Written Supervisions she had received. Id.
Because much of an ETS's work involves off-site meetings and responsibilities, it was of paramount importance that an ETS communicate with his/her supervisor. (Tr. at 53-54, 231-33, 298-299, 364, 814.) Failing to communicate one's whereabouts to a supervisor was "almost the worst thing an ETS [could] do." (Tr. at 814.) The ETSs also were responsible for ensuring that their supervisors know their whereabouts and that they were reachable throughout the workday. (Tr. 53, 803-04.) Communication between an ETS and his/ her supervisor is accomplished through the Outlook calendar and/or direct communication with the supervisor. (Tr. 53, 232-34, 803-04.) The Outlook calendar, which AHRC Nassau began using in 2008, was a tool that supported the ability of supervisors to communicate with ETSs and know where they were. (Tr. at 804, 232-234.) Supervisors, with permission, had access to the ETSs' individual Outlook calendars, and Simons specifically had access to Plaintiff's. (Tr. at 720.) ETSs were required to notify their supervisors of any change in their schedule that was not reflected in the ETS's Outlook calendar. (Tr. at 58, 234.) ETSs who were less adept at using the Outlook calendar could
When Murgola was first employed as an ETS, all ETSs were given pagers so that their supervisors could contact them in the field. (Tr. at 231-33.) Later, as more ETSs had their own cellphones, cellphones were substituted for pagers as a means of communication between ETSs and their supervisors. Id. During the time that Plaintiff worked at AHRC Nassau, ETSs were expected to have their cellphones with them at all times, in case they needed to be reached in the field. (Tr. at 54.)
On November 3, 2009, at approximately 2:50 p.m., Simons, who replaced Linder as Plaintiff's supervisor in August 2009, called Plaintiff on her cellphone because A.M. had come to AHRC Nassau looking for Plaintiff. (JPTO at 5.) A.M. told Simons that she (A.M.) had an appointment with Plaintiff that afternoon. (Tr. at 582-83.)
Plaintiff did not return Simons's phone call the next morning. (Tr. at 94; JPTO at 5.) Simons did not call Plaintiff again that morning because Plaintiff had not returned Simons's previous call, and Simons did not know whether Plaintiff's cell phone was working. (Tr. at 619-21.) Instead, Simons called the Baldwin Library, which was where Plaintiff's first appointment was that morning. Id.
Plaintiff was scheduled to be at the Baldwin Library from 9:00-10:30 a.m. to meet with her client, D.M. (Tr. at 95, 623; JPTO at 5.) Plaintiff was late for her appointment at the Baldwin Library. (Tr. at 95.)
Simons called the Baldwin Library at approximately 10:30 or 10:40 a.m., and spoke to D.M. (Tr. at 619, 624.) D.M. reported that Plaintiff had arrived at the library at 10:00 a.m. and left at 10:10 a.m.
Later that day, Simons engaged Plaintiff in a "support meeting." (Def. Ex. FF at 2.) Simons memorialized the meeting in a file note. Id. Plaintiff does not recall what she and Simons discussed at the meeting. (Tr. at 100.) Regarding November 3, Simons asked Plaintiff where she was between 3:00 and 4:00 p.m. that day, and Plaintiff responded that she had visited another client after her 2:00-3:00 p.m. appointment, even though Plaintiff's calendar did not list an appointment after 3:00 p.m. (Def. Ex. FF at 1.) When asked why she had not called Simons to advise her of the change in schedule, Plaintiff gave no response. Id. Simons explained that all ETSs were required to call their supervisors about changes in their schedules. Id. Simons told Plaintiff that her Outlook calendar had to accurately reflect her entire workday and reminded Plaintiff that this issue had been discussed with her on previous occasions. (Def. Ex. FF at 1-2.) Simons also offered Plaintiff assistance in completing this task, but Plaintiff declined. (Def. Ex. FF at 2.)
In addition, Simons discussed with Plaintiff that "her efforts for completing
Although Plaintiff apologized regarding the issues with her schedule,
Although Simons only supervised Plaintiff for two months, Plaintiff was Simons's most problematic employee during the time Simons worked at AHRC Nassau. (Tr. at 610-11, 752-53.) Simons had many issues with Plaintiff's work performance during that time, including Plaintiff representing that time-off had been approved by her prior supervisor when it had not, repeatedly submitting incomplete paperwork, failing to account for her time, and failing to correct issues that were presented to her. (Tr. at 610-11, 752-53.) Simons's main issues with Plaintiff's performance were not being able to reach Plaintiff or knowing where she was, and her failure to correct problems after they were addressed with her. (Tr. at 682-683, 764.)
At the same time, Simons did not want Plaintiff, or anyone else, to be fired. Simons credibly testified at trial, "I want success for people that I supervised. I want to keep someone from being fired. I mean, I don't know. I wouldn't want anybody to get fired." (Tr. at 610.) Simons was unaware that Plaintiff might be terminated following the events of November 3 and 4, and was not consulted regarding the termination decision. (Tr. at 293, 587.)
At trial, Plaintiff attempted to demonstrate that Simons was biased against Plaintiff based on an incident in which Plaintiff failed to follow the chain of command by emailing Simons's superiors, Murgola and Maynard, about a suggestion relating to A.M.'s work schedule. (Pl. Exs. 35 and 36.) However, the Court does not find any evidence that Simons was biased against Plaintiff based on this, or any other, incident. Simons credibly testified that she was "frustrated" about Plaintiff not speaking to Simons before sending the email, but did not harbor ill feelings toward Plaintiff over the email, and that none of Simons's decisions regarding Plaintiff were influenced by this incident. (Tr. at 848-50.) In fact, Simons could
On November 4, 2009, after meeting with Simons, Murgola recommended to Maynard that Plaintiff be terminated. (Tr. at 289-93, 508.) Murgola's recommendation was based largely on Plaintiff's failure to communicate with Simons regarding her whereabouts on November 3 and 4, and the fact that the communication issue appeared to be the "same thing that was happening again and again." (Tr. at 292, 519; Def. Ex. FF.
Murgola identified the factors that went into the decision to terminate Plaintiff's employment with AHRC Nassau:
(Tr. at 367.) Murgola explained that the "lack of acknowledgement of responsibility" by Plaintiff factored into the decision because her supervisors "really didn't see a true effort to make improvement." (Tr. at 367-68.)
Maynard described the reasons behind the termination decision this way:
(Tr. at 519.) Maynard also indicated that concern about Plaintiff's documentation of services was another factor, but it was not a driving force behind the termination decision. (Tr. at 520.)
Murgola and Maynard discussed whether a disciplinary action short of termination, such as another Written Supervision, was appropriate. (Tr. at 368-69.) Maynard did not believe that another Written Supervision would have done any good, but wanted to check with Diane Rodriguez in AHRC Nassau's Human Resources Unit "to be absolutely sure." (Tr. at 508.)
Maynard prepared a memorandum ("Termination Memorandum") for Rodriguez setting forth the bases for Maynard's recommendation to terminate Plaintiff's employment. (Tr. at 521; Pl. Ex. 32.) The Termination Memorandum provided a chronology of Plaintiff's performance issues, as reflected in file notes, Counseling Memoranda, and Written Supervisions. (Pl. Ex. 32.)
Id.
In her cover email to Rodriguez transmitting the Termination Memorandum, Maynard asked Rodriguez to advise Maynard "whether we have sufficient documentation to justify termination or whether you feel a FINAL written supervision is warranted." (Pl. Ex. 32 at 1.) Rodriguez agreed with, and approved, the decision to fire Plaintiff. (Tr. at 405, 428-29.) In making this decision, Rodriguez considered the Plaintiff's failures to account for her time and communicate with her supervisors to be the most significant issues. (Tr. 418-19, 545.) Based upon her experience in reviewing termination recommendations, she did not feel that another Written Supervision was appropriate. (Tr. at 439-40.) Rodriguez considered repetition of the same issue an important factor, especially if someone had been counseled about it, and remorse was another factor considered in disciplining an employee. (Tr. at 235-37, 647-48.)
Rodriguez took approximately one hour and 15 minutes to reach her decision regarding Plaintiff's termination. (Tr. at 387; Pl. Ex. 32.) Rodriguez, who is not African-American, had never met Plaintiff, and did not know Plaintiff's race. (Tr. at 430, 436.)
The following day, November 5, 2009, Plaintiff's employment at AHRC Nassau was terminated. (Tr. at 103, 721.)
Other ETSs at AHRC Nassau were disciplined for and/or engaged in the following conduct:
In March and April 2009, JF, a white male
In June 2009, JF received a Counseling Memorandum for over-use of his sick time. (Pl. Ex. 10.) JF eventually transferred to the position of Job Developer and later resigned from AHRC Nassau. (Tr. at 147-48.)
On March 17, 2008, FG, a white male
FG received the Counseling Memorandum in March 2008 because of two instances, in close succession, where Murgola could not find him at the office at the start of the day. (Tr. at 152-56.) After March 2008, there was never another instance when FG's supervisors did not know his whereabouts or could not reach him. (Tr. at 156-57, 240.) FG eventually was allowed to transfer to a part-time position in another department. (Tr. at 319-20.)
In August 2008, JZ, a white female (Tr. at 268), received a Counseling Memorandum for three issues that arose during the same week. (Pl. Ex. 15.) One issue related to incorrect billing documentation, although the memorandum noted that JZ subsequently "provided instrumental assistance in obtaining the correction information." Id. The second issue was that JZ did not make the two required visits in a month for two clients on her caseload, although the memorandum noted that immediate improvement had been made with respect to this issue after JZ's meeting with her supervisor. The third issue was
In May 2009, JZ failed to obtain certain information for a medical list for one of JZ's clients. (Pl. Ex. 16.) Simons, her supervisor, spoke to her about the minimal effort that JZ had put into compiling the list. Id. JZ apologized and acknowledged doing a poor job. Id. JZ said that she would seek assistance from Simons in obtaining the missing information and that she would submit the missing documentation to Simons "asap." Id. Simons did not consider giving JZ a Written Supervision for the documentation lapse because it was not a "billable discrepancy,"
In October 2009, JZ was given a Counseling Memorandum for inappropriately accessing Facebook or MySpace via AHRC Nassau's computers on two consecutive days that month. (Pl. Ex. 12.)
In April 2009, SM, a white female,
In June 2009, SM was counseled regarding her over-use of sick time. (Pl. Ex. 9.) SM was thereafter required to furnish medical documentation for future unexpected sick leave requests. Id. SM transferred to the position of a registered nurse at AHRC Nassau. (Tr. at 336.)
JG's Outlook calendar for September 2009 to November 2009 contains unaccounted-for time periods. (Pl. Ex. 22.) Maintaining his Outlook calendar was not JG's "strong suit." (Tr. at 330.) Despite JG's problems with maintaining his calendar, JG's supervisors always knew where he was. (Tr. at 201-02, 330, 815, 832.) JG was "phenomenal in his documentation," and currently trains new staff on AHRC Nassau's documentation standards. Id. JG, a white male
In April 2009, AHRC Nassau received a complaint that JM, a white male, was not meeting sufficiently with the management at the business where his client was working. (Pl. Ex. 17; Tr. at 254.) JM did not receive any discipline in connection with this complaint. Id.
In July 2009, JM was issued a Written Supervision for falsely stating that documentation for a client's billing review was complete, when, in fact, several significant documents were missing. (Pl. Ex. 31, Tr. at 252.) A Written Supervision, as opposed to a Counseling Memorandum, was given because of the severity of the conduct, i.e. that it involved a false statement about having reviewed a checklist when he had not. (Tr. at 796-98, 217-22.) JM was the only other ETS besides Plaintiff to receive a Written Supervision during the time that Plaintiff worked there. (Tr. at 215.) JM initially was denied a promotion to supervisor because of his Written Supervision. (Tr. at 216; JPTO at 5.) He subsequently was promoted to a supervisory position in the SEP unit. (Tr. at 216, 229.)
Plaintiff often observed JM arriving to work between 9:45 and 10:00 a.m., even though the starting time is 9:00 a.m. for ETSs. (Tr. at 320; Plaintiff's Findings of Fact ("Pl. FF.") ¶ 43; Tr. at 166, 254.) JM was very good at maintaining his Outlook calendar. (Tr. at 162.)
BM, a white female, had issues with failing to communicate and received one or two Written Supervisions for this conduct and possibly other reasons. (Tr. at 369-72.) BM resigned in January 2013. (Tr. at 370-72.)
In July 2011, MD received a Written Supervision for failing to report physical abuse of a client that MD observed. (Pl. Ex. 40.) It appears that MD was not terminated for failing to report the abuse. (Tr. at 543.)
In February 2004, when Linder was an ETS, she was issued a Written Supervision for failing to maintain appropriate boundaries. (Def. Ex. S.) Linder received the Written Supervision because she cried upon learning that her client was being fired from his job. (Tr. at 840-41.) Linder had not received a Counseling Memorandum for this type of conduct prior to receiving the Written Supervision. (Tr. at 841.) As a result of the Written Supervision, Linder could not be promoted for at least one year. Id.
Murgola experienced work performance issues with BW, a white female ETS, that were similar to those of Plaintiff, specifically that:
(Tr. at 370.) BW received Written Supervisions in response to those work problems. (Tr. 370-71.) Murgola would have recommended termination if BW had engaged in the same conduct again. (Tr. at
During her time at AHRC Nassau, Simons supervised six African-American employees. (Tr. at 744.) Simons did not discipline these employees more harshly than their Caucasian counterparts. For example, SB, an African-American ETS, had significant employment issues. (Tr. at 745-46.) Yet, Simons chose to address those issues via notes to file, rather than giving SB a Counseling Memoranda or Written Supervisions. (Tr. at 746.)
Murgola likewise treated SB favorably. Following SB's probationary period at the beginning of her employment with AHRC Nassau, Murgola determined that SB could have been terminated due to performance issues. (Tr. 239-40.) However, Murgola recommended that SB's probationary period be extended to give SB "a chance to prove herself." (Tr. 239-40, 758-59.) SB's probationary period was extended (Tr. 758), and SB ultimately was hired permanently. (See Tr. 744-45.)
SB and another African-American employee, DM, both were supervised by the same supervisors as Plaintiff, but they did not receive any Written Supervisions. (JPTO at 5; Tr. at 746.)
As an ETS from 2000 to 2004, Murgola worked with an African-American ETS, KD. (Tr. at 121.) After Murgola later became a supervisor, she promoted KD to the position of assistant supervisor in 2006. (Tr. 121, 123.) KD succeeded in the new position, and contributed to the AHRC Nassau's brochure for the SEP division. (Tr. 123; Pl. Ex. 58.)
Lastly, of the approximately eight ETSs currently in the SEP, one is African-American. (Tr. at 336.) There is no evidence that this employee has received any Written Supervisions or other discipline, or that this employee has been treated any differently than the Caucasian ETSs.
Title VII, 42 U.S.C. § 2000e et seq., provides redress for employees whose employers unlawfully discriminate against them in the work place based on a protected characteristic, namely, race, color, religion, sex, or national origin. Plaintiff's claim is specifically based on Title VII's provision that:
42 U.S.C. § 2000e-2(a).
The disposition of an employment discrimination action follows the three-step burden-shifting procedure established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as further elaborated and explained in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 505-12, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and as applied by the Second Circuit in James v. N.Y. Racing Assocs., 233 F.3d 149, 153-54 (2d Cir.2000). First, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. Second, if the plaintiff succeeds in demonstrating a prima facie case, there is established a rebuttable presumption of discrimination, which the employer may rebut by articulating a legitimate,
While the McDonnell Douglas framework is helpful in analyzing Title VII discrimination claims, its procedure "is not a rigid ritual, but simply an orderly way to evaluate proof when discrimination is claimed." Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1112 (2d Cir.1988). Accordingly, the Court's ultimate task as the finder of fact, notwithstanding McDonnell Douglas's burden shifting, is determining "discrimination vel non," i.e., whether plaintiff has proven by a preponderance of the evidence that the defendant discriminated against her. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).
To establish a prima facie case of racial discrimination, Plaintiff "must show that: (1)[s]he belonged to a protected class; (2)[s]he was qualified for the position [s]he held; (3)[s]he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir.2012) (citing Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir.2008)). Plaintiff's burden at this stage is one of production, not persuasion, and accordingly involves no credibility assessments. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The Court finds that Plaintiff has established a prima facie case of racial discrimination. As to the first three elements of the test, there is no dispute. First, Plaintiff, an African-American female, belongs to a protected class. Second, Plaintiff generally was qualified for the position of ETS-1. Third, termination clearly constitutes an adverse employment action.
Regarding the fourth element, the Court finds that the evidence introduced in this case is sufficient to establish that Plaintiff's termination "occurred under circumstances giving rise to an inference of discriminatory intent." Brown, 673 F.3d at 150. Most probative to this determination are the facts that Plaintiff was disciplined more severely for conduct similar to conduct engaged in by other, white ETSs and that Plaintiff is the only ETS who has been terminated by AHRC Nassau since approximately 2008. (See supra at I.E; Tr. at 369; see also Dkt. 42 (order on AHRC Nassau's motion for summary judgment).)
When a plaintiff sets forth a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the plaintiff's firing. Hicks, 509 U.S. at 506-07, 113 S.Ct. 2742. AHRC Nassau's stated reason for terminating Plaintiff's employment was her failure to
The Court finds that AHRC Nassau's stated reason for Plaintiff's termination is legitimate and non-discriminatory. "Poor work performance has often been recognized as a legitimate, non-discriminatory reason for termination." Auguste v. N.Y. Presbyterian Med. Ctr., 593 F.Supp.2d 659, 666 (S.D.N.Y.2009).
If the defendant provides a legitimate, non-discriminatory reason for the adverse employment action, the presumption of discrimination "simply drops out of the picture," St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742 (1993), and the plaintiff must show that it is more likely than not that the employer's actions were motivated by discrimination. Id. at 519, 113 S.Ct. 2742. To meet this burden, the plaintiff may "prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Cmty. Affairs, 450 U.S. at 252-53, 101 S.Ct. 1089; see Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 (2d Cir.2007) (plaintiff bears the burden to present evidence tending to show that the defendant's stated reasons are pretext for discrimination). Again, the Court's ultimate task is to determine "discrimination vel non," i.e., whether plaintiff has proven by a preponderance of the evidence that the defendant discriminated against her. See Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (2000).
The Court finds that Plaintiff has failed to demonstrate, by a preponderance, that race was a factor in AHRC Nassau's disciplinary decisions with respect to her.
Three of Plaintiff's supervisors — Maynard, Murgola and Linder — credibly testified that Plaintiff's race played no role in the decisions they made with respect to the disciplinary actions taken against Plaintiff. (Tr. at 294, 511, 845.) Murgola and Linder also credibly testified that they never discussed Plaintiff's race with anyone at AHRC Nassau. (Tr. at 294, 845.) Although Simons was not specifically asked the race question, the Court finds, based on its observations of Simons at trial and her overall testimony, that Simons' decisions with respect to Plaintiff were not affected, in any way, by Plaintiff's race. In addition, Rodriguez, who approved the termination, had never met Plaintiff, and did not know Plaintiff's race, when she appeared the termination decision. (Tr. at 430, 436.)
The conclusion that the disciplinary actions taken against Plaintiff were not based on race is further supported by the documentary evidence, including the Notes to File, Counseling Memoranda, and Written Supervisions. In particular, Plaintiff's failure to keep her supervisors apprised of her whereabouts and her unwillingness and/or inability to improve in this area were significant factors in the termination decision and were frequently brought up with Plaintiff during her employment. Further, it is worth noting that there is no dispute that the incidents underlying the disciplinary actions occurred. Rather, Plaintiff argues that the discipline she received in response to those incidents was disproportionate and discriminatory compared
Plaintiff contends that she was disciplined more severely than white ETSs who engaged in the same conduct. The evidence, however, does not support this conclusion.
As an initial matter, it is difficult to compare the Plaintiff's conduct with most of the conduct of the white ETSs because they are not directly equivalent. For example, Plaintiff cites instances of two ESTs, SM and JF, over-using sick time, for which they received Counseling Memoranda. (Pl. Exs. 9, 10.) There is no way to know how this conduct compares with any of Plaintiff's conduct. Similarly, it is difficult to know how to compare JZ's failure to conduct the required number of client visits for two clients or her inappropriate response to a client with Plaintiff's conduct.
To the extent that Plaintiff's and the white ETSs' conduct is comparable, e.g., the failure to maintain and update the Outlook calendar, Plaintiff's conduct is distinguishable on the basis that (1) Plaintiff repeatedly engaged in the same conduct after being counseled by her supervisors about the issue; and (2) Plaintiff did not appear to take these issues seriously and did not evince an attitude of wanting to change or correct these issues. It was the repetitive nature of Plaintiff's performance issues that set her apart from the other ETSs. No other ETS who received a Counseling Memorandum for a particular type of conduct engaged in that conduct again. (Tr. at 251, 268-69.) No other ETS received three Written Supervisions and then engaged in the same conduct that gave rise to the Written Supervisions, nor did so within such a short period of time as Plaintiff. (Tr. at 386.)
Furthermore, the area in which Plaintiff had the most lapses, namely, failing to communicate with her supervisors about her whereabouts, was an area of particular importance to the SEP unit and one with which the other ETSs did not have the same degree of non-compliance. For example, Simons was able to locate and contact the employees she supervised, except Plaintiff. (Tr. at 604-05.) ETSs, other than Plaintiff, called their supervisors to notify them that they would be late for appointments outside the office. (Tr. at 294, 655, 722-23.)
Finally, Plaintiff was not the only ETS who was severely disciplined. JM, for example, received a Written Supervision, without a prior Counseling Memorandum, for submitting a false statement about the completeness of materials he submitted. MD was issued a Written Supervision, without a prior Counseling Memorandum, for failing to report the abuse of a client. Linder herself received a Written Supervision for crying when she learned that her client had been fired from his job. And BW, like Plaintiff, received a Written Supervision for failing to document her schedule. Indeed, the evidence demonstrates that AHRC Nassau was strict, if not unforgiving, in the enforcement of its policies, but that it did so in a non-discriminatory manner.
While Plaintiff argues that her supervisors' focus on Plaintiff's "attitude" and "lack of remorse" are subterfuge for racism (Pl. Closing Argument, Dkt. 101, at 20-21), the Court does not agree. As an initial matter, the Court infers non-discrimination based on the fact that the three supervisors who played a role in hiring Plaintiff — Murgola, Linder and Maynard — were also involved in imposing disciplinary actions. See, e.g., Carlton v.
Thus, the Court finds that the evidence fails to establish that AHRC Nassau discriminated against Plaintiff on the basis of race with respect to the adverse employment actions taken against her, and finds in favor of Defendant with respect to Plaintiff's Title VII claim.
Under the FMLA, it is illegal "for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act]." 29 U.S.C. § 2615(a)(2); see also 29 C.F.R. § 825.220(a)(2) ("An employer is prohibited from discharging or in any other way discriminating against any person (whether or not an employee) for opposing or complaining about any unlawful practice under the [FMLA].").
FMLA retaliation claims are analyzed under the familiar McDonnell Douglas framework. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004); see also Riddle v. Citigroup, 449 Fed.Appx. 66, 70 (2d Cir.2011) (citing Potenza, 365 F.3d at 168).
To establish a prima facie case of FMLA retaliation, Plaintiff must show: (1) she "exercised rights protected under the FMLA"; (2) she "was qualified for [her] position"; (3) she "suffered an adverse employment action"; and (4) "the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent." Cooper v. N.Y. Nurses Ass'n, 847 F.Supp.2d 437, 446 (E.D.N.Y. Mar. 16, 2012) (quoting Potenza, 365 F.3d at 168). Since there is no dispute that Plaintiff was qualified to be an ETS and suffered adverse employment actions, the only issues to be determined are whether Plaintiff exercised rights protected under the FMLA and whether the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.
As discussed earlier, the Court finds that AHRC Nassau did not learn of A.M.'s pregnancy until February 2009 and thus the first two Written Supervisions, which were issued in late January 2009, could not have been the product of retaliation by Defendant on the basis of Plaintiff's advocacy for A.M.'s FMLA rights.
The Court similarly does not find that Murgola's comment about taking a "step back" reflects anger or hostility over Plaintiff advocating for A.M.'s FMLA rights. (Tr. at 166-68; Pl. Ex. 33.) The phrase was contained in an email from Murgola responding to Plaintiff's suggestion about taking certain actions with respect to A.M.'s employment. (Pl. Ex. 33.) Murgola's email began with "Susan, I appreciate your advocacy on behalf of [A.M.], and understand her need for extra pay." Id. After addressing the specifics of Plaintiff's suggestion, Murgola concluded with "I really think we need to take a step back here and see how [A.M.] adjusts to returning to her regular work schedule." Id. Clearly, read in context, Murgola's "step back" statement was simply a recommendation that the entire team, and not just Plaintiff, be deliberative and patient, and see how A.M.'s work situation progressed before reevaluating the issues raised by Plaintiff. This statement could not reasonably be interpreted as evincing hostility or resentment toward Plaintiff for advocating for A.M. At trial, Murgola explained that she meant that "we need to kind of take a step back from the situation and look at all factors that would contribute to [A.M.'s] timely return to work." (Tr. at 166-67.) Murgola credibly denied that she was telling Plaintiff to stop her advocacy on A.M.'s behalf, and denied that she was unhappy about Plaintiff's advocacy on A.M.'s behalf. (Tr. at 167.)
The evidence also demonstrates that, contrary to being hostile to Plaintiff's suggestions, Plaintiff's supervisors worked with Plaintiff to assist A.M. in obtaining FMLA benefits, and that Plaintiff's supervisors implemented and supported many of the measures for which Plaintiff advocated. For example, Murgola helped advocate for A.M. by suggesting to A.M.'s manager that A.M. take vacation time towards the end of her pregnancy so that she could reach the 12-month employment threshold to qualify for FMLA benefits. (Tr. at 275-76.) Murgola
Thus, the Court finds that there is no evidence that Plaintiff's supervisors were upset or angry over Plaintiff's efforts to obtain FMLA benefits for A.M. and that any adverse employment actions AHRC Nassau took against Plaintiff were not in retaliation for Plaintiff's advocacy on A.M.'s behalf. The Court therefore finds in favor of Defendant with respect to Plaintiff's retaliation claim.
In sum, Plaintiff has failed to prove by a preponderance that her race played any role in Defendant's termination of her employment. While the Court sympathizes with Plaintiff insofar as she feels genuinely aggrieved, there is no role for sympathy in adjudicating the facts or applying the law. See, e.g., Santiago v. Rapid Armored Corp., 04-CV-4721(NGG), 2006 WL 930543, at *3 (E.D.N.Y. Apr. 10, 2006) ("Although the Court is sympathetic to plaintiff's loss of her job after more than eighteen years, her claim that management is unfair does not establish a basis upon which to consider her [] discrimination claim."); Fiore v. City of N.Y., 1998 WL 755134, at *2 (S.D.N.Y. Oct. 26, 1998) ("While we sympathize with plaintiff's difficulty in obtaining salary and other employment benefits to which he sincerely believes he is entitled," plaintiff was not entitled to such a remedy). "[E]ven if [AHRC Nassau] acted unwisely or erroneously," or indeed in a fashion with which the Court might disagree, there is no proof of racial discrimination in this case. See Jones v. City of Mount Vernon, 114 F.Supp.2d 274, 283 (S.D.N.Y.2000) (citing Toliver v. Sullivan Diagnostic Treatment Ctr., 818 F.Supp. 71 (S.D.N.Y.1993), aff'd 22 F.3d 1092 (2d Cir.1994)).
Based on the entire record, the Court finds that the evidence fails to prove, by a preponderance, that Defendant AHRC Nassau discriminated against Plaintiff on the basis of race, or that it retaliated against her on the basis of her advocacy for her client's FMLA rights. Accordingly, the Court issues judgment in favor of Defendant AHRC Nassau and dismisses this action with prejudice. Each party shall bear its own fees and costs.
The Clerk of the Court respectfully is directed to enter judgment in Defendant's favor and terminate this action.
SO ORDERED.
