NAOMI REICE BUCHWALD, District Judge.
Plaintiff Veronica Pearson brings this action against the Unification Theological Seminary ("UTS") and Kathy Winings, the Dean of UTS' New York City Extension Center and Director of the "Doctorate of Ministry Degree Program." Plaintiff, a former admissions officer, alleges that UTS and Winings discriminated against her on the basis of her race in violation of 42 U.S.C. § 1981 ("Section 1981") and parallel state and municipal laws, and retaliated against her in violation of these laws for her complaints of racial discrimination. She also claims defendants violated her rights under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), and discriminated against her as a result of a disability in violation of state and municipal laws. Now pending is defendants' motion for summary judgment on all of plaintiff's claims. As addressed below, the motion is granted. As the only remaining claim is defendants' counterclaim for assault, we dismiss the case for lack of jurisdiction.
UTS is a non-profit institution which provides graduate and post-graduate degree courses in theology and religious instruction. The main offices are in Barrytown, New York, but there is an "Extension Center" located in the New Yorker Hotel in New York City where courses are taught. Veronica Pearson was hired as an Admissions Officer for the Extension Center in July 2005. This position was part-time, and her starting salary was $20,000 with an understanding that it would rise to $30,000 in September 2005 if her employment was successful. Pearson was hired after an interview with Kathy Winings, defendant in this action, and a follow-up interview with Tyler Hendricks, the President of UTS. In September 2005, Pearson's salary was raised to $30,000. In July 2006, Pearson was offered and accepted a full time position and a raise to $40,000. Pearson claims her new full-time position was Admissions Director of the Extension Center, but defendants argue that her job duties did not change. According to Pearson, these raises and promotions were the result of her good performance. As Admissions Director, Pearson worked "between 50-70 hours" in "any given week" and often worked on the weekends. Pl. Aff. ¶ 44. She claims that she was very successful in this position; she enrolled many new students and was constantly working to recruit more.
Pearson asserts that during her employment she discovered systemic racism within
During her employment, Pearson became greatly concerned about the experience of one of her predecessors at UTS. Lisa Alvarado, a black female from Cameroon, was fired by UTS and subsequently filed a charge with the EEOC alleging discrimination based on race, gender, and national origin. Pearson claims that she discovered that "certain students" had "complained that they believed that Defendant Winings was the cause for [sic] Lisa Alvarado's unlawful discharge from the UTS," and that one of the students told Pearson that UTS hired her as a "`token' Black person in an effort to shield itself from liability for race discrimination claims." Pl. Aff. ¶ 61. Plaintiff also provides a petition, signed by June 2004, which protested Alvarado's discharge and was addressed to Winings. Ex. 32 to Affirmation of Ian Wallace in Opp'n to Motion for Summary Judgment ("Wallace Affirm."). At some point while working at UTS, Pearson came across a fax from the EEOC which stated that the Commission "has determined there is reasonable cause to believe [Alvarado] was terminated by [UTS] because of her race and national origin. There is also reasonable cause to believe [Alvarado] was retaliated against by [UTS] because she filed a Charge of Discrimination with the EEOC." Ex. 29 to Wallace Affirm. Pearson believes that the "incident with Ms. Alvarado triggered much racial tension within the Extension Center." Pl. Aff. ¶ 75
Pearson claims that she personally suffered discrimination at UTS as well. She believes her experience was "very similar" to Alvarado's, and alleges that she suffered discrimination "predominately at the hands of Winings." Pl. Aff. ¶¶ 77-78. Pearson asserts that Winings undermined her authority and countermanded her admissions decisions without justification. She claims that Winings attempted to assign responsibility for organizing UTS' convocation event to a student who was not a paid employee of UTS
Pearson alleges that she first complained about the racism at UTS in an email sent to Hendricks on November 10,
Pearson's next complaint to Hendricks, and the only one memorialized in the record before the Court,
Ex. 17 to Wallace Affirm. (emphasis in original).
The events following this email on the morning of December 4 are highly disputed. According to Pearson, after sending the email from her work computer, she went home for a couple of hours before returning to the office at 8:00 AM. She claims that upon arriving back at the office, the building's security officers "aggressively insisted" on escorting her to her office. Pl. Aff. ¶ 111. This "startled" Pearson, because the security official demanding to ride the elevator with her was "very rude and belligerent" and was a male whom she had never seen before. Pl. Aff. ¶¶ 112-113. Plaintiff was "very disturbed" by this treatment and began to get "nervous and a little hyper," because she would "occasionally" see "women in halter tops and `hot pants' entering into the suites on the 9th floor accompanied by other men" when she was working late. PI. Aff. ¶¶ 116-117. Pearson says she was informed by this unidentified man that he had been instructed to accompany her upstairs, but that she insisted a female officer accompany her instead. Pl. Aff. ¶¶ 114-115. Pearson eventually made it upstairs, where she "saw another male security officer" and had "trouble" with the key to her office. Pl. Aff. ¶¶ 120-121. Pearson does not elaborate on this trouble with her key, but says that she "finally" did get into her office. These events left her "shaken" and "fearful." Pl. Aff. ¶¶ 122-123.
Pearson claims that around 9:15 AM, Winings arrived at the Extension Center
Pearson states that "two men dressed in suits" then arrived, and that she was pleased to see them since she assumed they were there to resolve the situation with Winings. Pearson told the men that she was just trying to focus on her advertising campaign but that Winings was part of "some whole operation to just cause me harm or have people cause me harm." It was at this point, she claims, that she said "everything would be fine as `God would purify this place'" and then "rolled a half-empty plastic bottle of water that [she] had been drinking down the hall." Pl. Aff. ¶ 144. She asserts that Winings was nowhere in sight and had gone into her office at the time she rolled the water bottle.
Pearson claims she then went into her office, where she remained for about ninety minutes before Anthony Rice, a security official whom she knew and trusted, came to her door and offered her a cup of tea. Pearson opened the door, and saw two EMT specialists with Rice. The EMTs requested that Pearson allow them to examine her, and Pearson obliged. Pearson claims that she was relieved to see the EMT specialists, especially since one of them was a woman. She says that she then voluntarily left the office with the EMTs and went to Cabrini Medical Center in an ambulance, where it was determined that she "suffered a manic episode due to my bi-polar condition brought on by work stress." Pl. Aff. ¶ 153.
The defendants' version of events is markedly different. According to defendants, Winings arrived at the office on the morning of December 4
Winings claims that both she and Pearson then retreated to their respective offices, where she was "shaking and fearful that Plaintiff might come to her office and do something." Defs.' SF ¶ 34. Soon after, Winings went to Pearson's office to check on her. Pearson informed Winings: "I have called the police and they will arrest you now." Defs.' SF f 35. Pearson continued to swear loudly, at which point another employee of UTS told Winings that she had contacted building security.
Winings went back to her office and placed a call to Hendricks. While Winings was in her office, security officers arrived. According to a "Security Incident Report" written by Anthony Rice, the security official mentioned above that Pearson knew and trusted, when security arrived Pearson was locked in her office. The incident report further notes:
Ex. F to Declaration of Leroy Watkins in Support of Motion ("Watkins Decl."). The report then explains that, with NYPD and EMS present, Rice was able to convince Pearson to open the door in order to accept some tea. Once the door was open, EMS began speaking with Pearson, and by 11:08 AM they were transporting Pearson to Cabrini Medical Center.
While we are mindful of the fact that credibility assessments are the province of the jury and that at this stage we are to resolve all conflicts and ambiguities in the plaintiff's favor, we note that there is significant evidence supporting the conclusion that the events of December 4 were far more extreme than plaintiff suggests and were much closer to defendants' version.
Following the investigation by the Department of Labor, an Administrative Law Judge ruling on Pearson's right to unemployment insurance benefits found that Pearson was surprised to see Winings at the office that morning, and that she:
Ex. 13 to Wallace Affirm.
Furthermore, two non-party witnesses to the events of the morning of December 4 have submitted affidavits in this action detailing Pearson's behavior. The affidavits both attest that Pearson was acting bizarrely and claiming to have replaced Winings as Dean. One statement accounts that "Veronica was screaming to [Winings] and look[ed] like she want it [sic] to hit her... she kept calling her Satan and screaming at her saying that someone wanted to rape her so immediately we called security. I told Kathy to go into her office and lock the door and wait for security because at this point I was afraid for Kathy safety." Ex. G to Watkins Decl. The other reports "a big commotion in the hall, [Pearson] was very agitated and screaming at someone, using four-letter words, Satan, etc. Furthermore, she threw a water bottle, which hit my office door with such force, that it rattled in its frame. This went on for at least 20-30 minutes." Ex. H to Watkins Decl.
In addition, even if the incidents did not occur entirely as defendants claim, there are several significant facts with regard to the events of December 4 which are not in dispute. Pearson admits that she called Winings a "racist" and "liar" and said that there is "no way in the world that a woman who is concerned about education would be doing something that would create this much division." Pl. Aff. ¶ 137. There is also no question that the events of December 4 necessitated the presence of building security. Further, building security was unable to handle the situation alone, and called 911 to seek the assistance of the New York Police Department. Upon arrival, the police officers realized that they too were not equipped to resolve the situation, and called EMS. EMS arrived and took Pearson to the hospital, where she stayed for ten days.
Pearson was diagnosed at Cabrini with "bipolar manic-depressive syndrome." While there is some disagreement as to when the defendants became aware of
On December 5, 2006, Hendricks wrote a letter to Pearson in which he informed her that her employment had been terminated, effective immediately. Hendricks wrote that the "reasons for your termination are your disruptive behavior, property damage, curses and threats of harm addressed to your supervisor, Dr. Kathy Winings, on December 4, 2006. This conduct constitutes cause for termination pursuant to the UTS Employee Handbook." Ex. 5 to Wallace Affirm. The letter, a copy of which was sent to Winings, security officials at the hotel, and the Vice President of UTS, also informed Pearson that she was barred from entering UTS, both at the Barrytown campus and the Extension Center, and that she could recover her personal possessions by making advance arrangements with hotel security. Pearson was informed that security would escort her to and from her former office.
Summary judgment is appropriate only where the parties' submissions "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is inappropriate if the court, resolving all ambiguities and drawing all reasonable inferences against the moving party, finds that the dispute about a material fact is "such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
To defeat a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). The nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. Nat'l Union Fire Ins. Co. v. Deloach, 708 F.Supp. 1371, 1379 (S.D.N.Y.1989) (quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotation marks omitted)). It is thus insufficient for a party opposing summary judgment "merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal citations and quotation marks omitted). Further, while credibility determinations, weighing evidence, and drawing legitimate inferences from facts are functions that the court must leave to the jury, if the nonmoving party does not present evidence from which a reasonable jury could return a favorable verdict, then summary judgment is appropriate. See, e.g., Golden Pac. Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir.2004).
As we have previously observed, summary judgment is available in discrimination cases as it is in other litigations. See Nieves v. Angelo, Gordon & Co., No. 05
In the absence of direct evidence of discrimination, courts apply the burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
It is not sufficient, however, for a plaintiff to show merely that he satisfies "McDonnell Douglas's minimal requirements of a prima facie case" and to put forward "evidence from which a factfinder could find that the employer's explanation... was false." James, 233 F.3d at 153. Instead, the appropriate question is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue-that is, whether the record contains sufficient evidence to support an inference of discrimination. See James, 233 F.3d at 154; Connell, 109 F.Supp.2d at 207-08.
Plaintiff's first three causes of action complain of racial discrimination in violation of Section 1981, the New York State Human Rights Law ("SHRL"), and the New York City Human Rights Law
To establish a claim of discrimination under Section 1981, a plaintiff must show "(1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981." Lauture v. Int'l Bus. Mach. Corp., 216 F.3d 258, 261 (2d Cir.2000). Section 1981 claims, as well as claims under the SHRL and CHRL, are analyzed as are Title VII claims. White v. Eastman Kodak Co., 368 Fed.Appx. 200, 202 (2d Cir.2010) (citing Hudson v. Int'l Business Machines Corp., 620 F.2d 351, 354 (2d Cir.1980)) (discrimination claims under Section 1981 have same elements as Title VII); Ferraro v. Kellwood Co., 440 F.3d 96, 99 (2d Cir.2006) ("The standards for liability under [the SHRL and CHRL] are the same as those under the equivalent federal antidiscrimination laws."). Thus, in order to make out a prima facie case of racial discrimination in this action, Pearson must show that (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered from an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Id.
While unclear from the complaint, plaintiff's memorandum of law in opposition to the instant motion clarifies that the racial discrimination she allegedly suffered at UTS was not her termination of employment, but rather her treatment while working at the school. This distinction is significant, because UTS cannot offer the events of December 4, 2006 as a legitimate explanation for its treatment of Pearson throughout her employment.
For purposes of this motion, there can be little question that Pearson is a member of a protected class and was otherwise qualified for her position. As for whether she suffered adverse action, Second Circuit case law holds that an adverse employment action is a "materially adverse change in the terms and conditions of employment." Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir.2004) (citation and internal quotation marks omitted). In order to be materially adverse, a change in working conditions "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. Examples include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id.
Pearson alleges that she suffered the following adverse employment actions: (1) Winings "undermined and countermanded" her admissions decisions without reason; (2) Winings "took away responsibilities" and "routinely excluded her from important decisions and conference calls" on issues within her purview; (3) Winings "prevented" Pearson from attending senior management meetings for all department heads and administrators; (4) Winings "refused to meet" with Pearson "face to face" and was "generally divisive and hostile," even asking Plaintiff when she was "moving back to South Carolina." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 12-13. None of these claims survive this motion for summary judgment.
Pearson's allegations that Winings undermined and countermanded her admissions decisions and policies do not rise to the level of material adversity. Winings was Pearson's supervisor at a very small academic institution; it is unrealistic for Pearson to believe she would have free rein over admissions decisions and policies without any input from her superior. Furthermore, Pearson has no material, tangible, or ownership interest in such decisions. While we recognize that there might be a set of facts in which a supervisor so egregiously "countermanded" the decisions of one of her employees that the interference rises to the level of material adversity, this is not such a case. In fact, Pearson's broad allegations that her "decisions and policies" were "undermined and
Pearson's next claim is that Winings stripped her of parts of her duties. The relevant question for purposes of material adversity is whether the result of Winings' actions was "significantly diminished material responsibilities," or rather a simple "alteration of job responsibilities." See Sanders, 361 F.3d at 755. While we seriously doubt that Pearson alleges significantly diminished material responsibilities, we will bypass this issue as it is clear that no reasonable jury could find Winings took away job responsibilities from Pearson as a result of her race, and thus Pearson cannot demonstrate causation. The only "responsibility" that Pearson specifically identifies as having been taken from her is the planning of UTS' convocation event. Pl. Aff. ¶ 80. However, Pearson alleges that this task was given to Leander Hardaway. Hardaway is the African-American male who ultimately replaced Pearson after her termination. Thus, even if reassigning responsibility for the convocation event was materially adverse, it is impossible for a reasonable jury to find that Winings took this action as a result of Pearson's race.
Pearson's claims that Winings was "generally divisive and hostile" and refused to meet with her deserve little mention. These are broad, unsupported allegations which clearly cannot be the basis for allowing this action to move on to trial.
Pearson's most detailed and substantive allegation of discriminatory treatment is Winings' refusal to allow her to attend the senior management meetings at UTS' main campus in Barrytown. Pearson alleges that these meetings were held "every 5 or 6 weeks," that she never once attended, that she was the only "department head" at UTS who was routinely excluded, and that no "African-American or black" individuals were present. She also claims that an Asian field recruiter began to attend the meetings "within the first month of employment" and notes that this position is lower in rank than hers.
The Second Circuit has observed that "exclusion from critical meetings over a three or four month period might well be materially adverse." Sanders, 361 F.3d at 756. We are skeptical that these meetings are the sort of "critical" meetings that the Circuit has in mind, given that Pearson provides no explanation as to how her presence at these meetings would have any tangible or material effect on the terms or conditions of her employment with UTS. See, e.g., Weeks v. New York State Div. of Parole, 273 F.3d 76, 86-87 (2d Cir.2001) (noting claim of adverse action must fail where plaintiff did not allege what "tangible adverse effect" it had on the terms and conditions of her employment).
Regardless of whether this rises to the level of material adversity, defendants offered several legitimate reasons for Pearson's absence from these meetings.
Second, no employees from the Extension Center attended these meetings, since they were all under the supervision of Winings, who would attend as the representative from the Extension Center. When asked by Pearson's counsel why other employees from the Extension Center, and Pearson in particular, were not invited to attend along with Winings, Hendricks provided several considerations. Ex. III to Wallace Affirm. First, Winings was perfectly capable of representing the Extension Center on her own. Second, the expense in getting to Barrytown, both in terms of money spent and time wasted, was considered prohibitive and unnecessary.
Pearson's attempts to paint these explanations as pretextual are unavailing. She argues that the concern about expense is not credible since Pearson easily could have traveled with Winings to the meetings, and that Pearson would "often" be asked to go to Barrytown for other reasons. While this may be so, it is entirely reasonable, in fact rational, for UTS to prefer Pearson to stay at the Extension Center and take care of her obligations rather than spend time traveling to Barrytown to attend these meetings. This is particularly the case since there was already a representative both of the admissions department and the Extension Center at these meetings.
Pearson also argues that Winings and Hendricks directly contradicted each other with regard to whether Pearson should have been present at these meetings, and thus their testimony is not credible. She notes that Winings testified that Pearson was not a member of the cabinet because she was not the Admissions Director for all of UTS, whereas Hendricks testified that Pearson was a "key administrator at the Extension Center." Exs. II, III to Wallace Affirm. This is a highly selective quote by Pearson's counsel, as when Hendricks was asked why Pearson was "key," he responded "because it was a very small staff [at the Extension Center] and everyone was key." Ex. III to Wallace Affirm. Later, when Pearson's counsel once again pressed on how Pearson was "key" to the Extension Center, Hendricks reiterated that "[e]veryone was. Everyone was key." Id.
Ultimately, the only evidence Pearson provides for the notion that her absence from these meetings was discriminatory that has not been entirely discredited is her allegation that no black members of UTS were present and the inference she asks us to draw from the Alvarado situation. Given defendants' reasonable and consistent explanations for her absence and the tenuous circumstantial evidence on which Pearson asks us to rely, we find that no rational jury could find there were discriminatory
It appears that Pearson's counsel, in an effort to remove the events of December 4 from this litigation, has attempted to concoct any possible legal theory or set of facts in which his client could defeat this motion for summary judgment. We are not persuaded. The anti-discrimination laws are not intended to make federal courts the managers of corporate America, and not every perceived slight or injustice warrants a lawsuit. See, e.g., Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (discrimination laws do not set forth a "general civility code for the American workplace"). Plaintiff has failed to point out any practical, monetary, or advancement consequence to her as a result of any of defendants' alleged actions, or that there was an actual negative impact on her ability to do her job. She also has not submitted evidence by which a reasonable jury could believe any employment action taken against her was done as a result of her race. Thus, all of her claims of racial discrimination must be dismissed.
Pearson alleges that her termination was retaliatory in violation of Section 1981, the SHRL, and the CHRL. Retaliation claims under these statutes are evaluated using the three-step McDonnell Douglas burden shifting analysis discussed above. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).
In order to make out a prima facie case of retaliation under Section 1981,
Defendants argue that Pearson has failed to establish a prima facie case of retaliation because there is no evidence that she engaged in protected activity or
Assuming that Pearson has presented a prima facie case of retaliation, the burden shifts to the defendants to articulate a legitimate, nonretaliatory reason for the employment decision. This is a burden of production, not persuasion; the defendants' obligation is to "clearly set forth, through the introduction of admissible evidence, the reasons for the [employment action]." Baguer v. Spanish Broad. Sys., No. 04 Civ. 8393(RJS), 2010 WL 2813632, at *6, 2010 U.S. Dist. LEXIS 69212 at *15-16 (S.D.N.Y. July 12, 2010) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
The defendants clearly satisfy this requirement. They introduced ample evidence for the proposition that UTS terminated Pearson for the events of December 4. This is clearly a legitimate, non-discriminatory reason for termination. See, e.g., Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 171 (2d Cir.2006) (making a threat is a legitimate, non-discriminatory reason for termination).
Since defendants have met their burden of producing a legitimate, nondiscriminatory reason for plaintiff's discharge, the presumption of discrimination created by the prima facie case simply "drops out of the picture." Cifra v. General Electric, 252 F.3d 205, 215 (2d Cir.2001) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Our focus now shifts to whether plaintiff has provided sufficient evidence for a factfinder to conclude that defendants' purported rationale was actually a pretext for retaliation. The plaintiff must not simply produce "some" evidence, but "sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant[s] were false, and that more likely than not [retaliation] was the real reason
Aside from the temporal nexus between the protected activity and adverse employment action, Pearson argues that there is evidence that Winings "exaggerated" the events of December 4 and fabricated the water bottle incident after she learned about plaintiff's accusatory email on the morning of December 4. Pearson suggests that this evidence is significant not only to disprove defendants' version of the events, but also to demonstrate that Winings had a retaliatory motive and willfully manufactured a story in order to get rid of Pearson.
Pearson's first piece of evidence regarding Winings' credibility is a page of notes written by Hendricks on the morning of December 4. Ex. 39 to Wallace Affirm. Pearson claims that the notes are Hendricks' contemporaneous account of his telephone conversations with Winings. The account makes no mention of the water bottle incident. It also appears to reflect that Winings made two separate calls to Hendricks on the morning of December 4. During the first call, Winings reported only that Pearson "had been in her office all weekend, was cursing and singing loudly, throwing crackers around, tore the name plate off Dr. Winings' door, and would not let anyone in her office." Winings further informed Hendricks that she "had called the building security." Hendricks noted that he "advised her to get the security's assessment; soon thereafter... security assessed and advised that EMS be called, that Veronica needed to be hospitalized." It appears that the last note relating to this call is that Hendricks "informed Dr. Winings of the e-mail Veronica had sent at 5 a.m. this morning accusing UTS of being racist." Ex. 39 to Wallace Affirm.
Pearson believes the contents of this first call are relatively tame, and that it is significant that the notes conclude with Hendricks mentioning that he informed Winings of Pearson's email. This is because it appears that there was a second call from Winings to Hendricks in which Winings reported far more severe behavior. The account reads that "Dr. Winings called later to report that the EMS had come, that Veronica had threatened to kill Dr. Winings and then to kill herself. She insisted that the EMS were not really EMS but were a limo service to take her to the airport where she could fly to South Carolina to protect her children from Dr. Winings. [A student] came and helped calm Veronica and witnessed and cooperated with the actions of the EMS, who took her to Belleview or Cabrini, KW was not sure, for 72 hours observation." It then mentions who witnessed the episode, other odd behavior that a security official had witnessed from Pearson that morning, and that Hendricks approved the hiring of a temp to deal with the phone for the recruitment office "for the week" but that "[u]nfortunately Veronica would not report her access code on her phone." The account concludes that "Dr. Winings surmises that the crisis came due to Veronica's being caught in a lie regarding her absence this week. One of the EMS people said that Veronica may be bipolar and, not being at home, has not taken her meds." Ex. 39 to Wallace Affirm. Pearson argues that the order of phone calls, coupled with the fact that the second call reported significantly more severe behavior, creates an inference that the events described in the second phone call were exaggerated by Winings after learning that Pearson had accused her of racism that morning.
Ex. 7 to Wallace Affirm.
Next, in the notice of termination sent to Pearson by Hendricks, there is no explicit mention of the water bottle incident. The letter simply informs that she was terminated for "disruptive behavior, property damage, [and] curses and threats of harm addressed to your supervisor." Ex. 5 to Wallace Affirm. Lastly, there is a form Winings filled out for the Department of Labor, where in response to the prompt "[p]lease explain he specific reason you chose to terminate the claimant," Winings simply quoted directly from this termination letter and did not reference the water bottle. Ex. 9 to Wallace Affirm. In response to the question "[w]hat reason did the claimant give you for his/ her actions that led to his/her discharge," Winings wrote "claimant offered no explanation; claimant was incoherent and subsequently escorted from the premises by building security, NYPD, and EMS." Id.
Pearson also argues that Winings' testimony regarding where she and Pearson were standing at the time of the alleged assault and the trajectory of the bottle is a "physical impossibility." Pearson points to exhibits in the record of photographs of a hallway at UTS' offices where the incident allegedly occurred. These photographs were shown to Winings during her deposition, who was asked to identify (1) where she was standing, (2) where Pearson was standing, (3) Marion Wallace's door, which was allegedly struck by the water bottle, and (4) the trajectory of the bottle. Pearson argues that these identifications establish that the bottle could not have been thrown at Winings. Exs. 1-4 of Wallace Affirm.
Pearson further surmises that if the incidents of December 4 were as egregious as defendants claim, the police at the scene would have filed a police report or UTS would have sought a restraining order or order of protection against Pearson. Neither occurred, and Pearson believes that the latter is particularly instructive because the local police precinct was directly adjacent to the New Yorker Hotel.
Finally, Pearson notes that there were no eyewitnesses to the assault, and that all of the affidavits submitted in support of defendants' version of the events are from members of the Unification Church. Pearson argues that the affiants, including Winings and Hendricks, all share "complete devotion to the leader of that Church, Rev. Sun Myung Moon. Hence, their credibility cannot be taken for granted but must instead be assessed by the trier of fact." Pl.'s Opp'n at 22.
More significantly, even accepting every word of Pearson's allegations, it is far from clear that UTS would not have been justified in terminating her. It is not disputed that Pearson engaged in a loud argument with her boss and called her a "racist" and a "liar." Whatever occurred, it required the presence of building security, the NYPD, and EMS. This is not acceptable office behavior, and a complaint of racial discrimination does not shield an employee from termination when she acts inappropriately. A small, non-profit institution such as UTS, and particularly a work environment such as the Extension Center, is surely justified in terminating an employee who acted as Pearson admits she did.
It is not sufficient for a plaintiff to simply rely on "evidence from which a factfinder could find that the employer's explanation... was false." James, 233 F.3d at 153. Viewing Pearson's evidence in its best light, this is all she does. She clearly does not present "sufficient evidence ... from which a reasonable trier of fact could find in [her] favor ... on the ultimate issue" that she was terminated in retaliation for her allegations of racial discrimination. Id. at 154. Thus, her claims must be dismissed.
Plaintiff's fourth claim is that defendants interfered with her rights under the FMLA by "terminating [her] employment for having taken FMLA medical leave for a serious medical condition, and not reinstating her to her former position." Compl. ¶ 168. While not without doubt, it appears that plaintiff is alleging an interference claim, rather than retaliation, under the FMLA. This difference is irrelevant, however, as any claim under the FMLA must be dismissed.
The FMLA entitles an "eligible employee" to twelve workweeks of leave during a twelve month period because of a "serious health condition" making her unable to perform the functions of her employment. 29 U.S.C. § 2612(a)(1). Upon returning from leave, the employee is "entitled" to return to the position she held prior to taking leave, though this right is not absolute. Sista v. CDC Ixis N.A., Inc., 445 F.3d 161, 174 (2d Cir.2006). In order to bring a successful entitlement claim under the FMLA, the employee must demonstrate "(1) that the employer
Defendants raise a number of potential issues with Pearson's claim that she was entitled to FMLA leave. These issues are irrelevant, however, because Pearson "cannot show that the [UTS] considered [her] FMLA leave and request to return a negative factor in its decision to terminate." Sista, 445 F.3d at 176. Even assuming that Pearson's stay at the hospital constituted FMLA leave, and that UTS is governed by the statute, it is well-settled that an employer is not liable for "interfering" with an employee's leave when the employee would have been terminated regardless of the leave. See Id. at 175-177; see also 29 C.F.R. 825.216(a) ("An employee has no greater right to reinstatement... than if the employee had been continuously employed during the FMLA leave period."); Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 979 (8th Cir. 2005) ("As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee's exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee's FMLA leave rights."); Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 429 (S.D.N.Y. 2004) ("FMLA is not a shield to protect employees form legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.").
Just as the plaintiff in Sista, Pearson cannot "establish that [she] was discharged for taking the leave or that it was a `negative factor' in [UTS'] decision to fire" her. Sista v. CDC Ixis N. Am., Inc., No. 02 Civ. 3470(GBD), 2005 WL 356973 at *7, 2005 U.S. Dist. LEXIS 2163 at *24-25 (S.D.N.Y. Feb. 10, 2005) (district court decision in Sista). Not only does it appear clear that she was terminated for her conduct of December 4, but there is not a scintilla of evidence for concluding that her "leave" played any role in this employment decision.
Any purported retaliation claim would fail for the same reason. Unlike interference claims, the Second Circuit has held that retaliation claims under the FMLA are subject to the McDonnell Douglas burden shifting analysis. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004). In order to show a prima facie case, Pearson 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. Even assuming Pearson could make out a
Pearson's last two causes of action allege disability discrimination in violation of the CHRL and SHRL. Notably, Pearson does not bring a claim under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq. ("ADA"). However, with one exception not relevant to this motion,
To establish a prima facie case, Pearson must show (1) UTS is subject to the ADA; (2) she was disabled; (3) she was qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001).
Defendants argue that Pearson has not established a prima facie case because she cannot demonstrate that they had knowledge of her disability or that there was any causal connection between her disability and her termination. At this stage in the litigation, we do believe that plaintiff has met her prima facie burden. While it is true that Pearson may not have disclosed her disability when she first started her employment at UTS, there is certainly enough circumstantial evidence that the events of December 4 should have, and in fact did, put UTS on notice of her disability. See Ex. 37 to Wallace Affirm. Furthermore, given that she was fired a day after such notice, there is the requisite causal showing for a prima facie case. We need not address these issues in any great depth, however, because even assuming that Pearson has established a prima facie case it is once again clear that she cannot rebut defendants' legitimate, non-discriminatory, non-pretextual reason for her dismissal.
In Sista, the Second Circuit held that making a threat against an immediate supervisor was a reasonable basis for terminating employment. Sista, 445 F.3d at 172 (determining that an employee's threats against his supervisor is a consideration for the second step of the McDonnell Douglas analysis rather than the question of whether he was "otherwise qualified" for his position). In so doing, the Court of Appeals adopted a section of an amicus brief from the EEOC, which stated that an employer "may discipline or terminate an individual who, because of disability, makes a threat against other employees if the same discipline would be
The rule of Sista clearly forecloses plaintiff's argument that since her disability caused her conduct, she was in essence fired because of her disability. Furthermore, it is clear that defendants have put forth a legitimate reason for her termination, and Pearson provides no evidence that this reason is merely pretextual. There is simply no basis to conclude that Pearson's fate was any different than would have befallen any other employee who engaged in the conduct of December 4, even were we to accept Pearson's version of the events.
As discussed above, all of Pearson's claims, including those under the CHRL, are dismissed. We write in this separate section to address plaintiff's argument that the CHRL holds employers to a higher standard than state or federal statutes. It is true, as plaintiff points out, that New York courts have found that the CHRL is broader than state and federal law. These courts have noted that the CHRL's "legislative history clearly contemplates that the [CHRL] be liberally and independently construed with the aim of making it the most progressive in the nation" and that the "case law that has developed in interpreting both the [SHRL] and [federal law] should merely serve as a base for the [CHRL], not its ceiling." Jordan v. Bates Adv. Holdings, Inc., 11 Misc.3d 764, 816 N.Y.S.2d 310, 317 (N.Y.Sup.Ct.2006).
However, beyond the well-settled distinctions in the law that we have noted where applicable above, plaintiff provides no example or argument of where the CHRL provides a rule of law that would change any of the grounds for the determination in this motion. Plaintiff does not, and we believe she cannot, argue that the CHRL prevents an employer from terminating an employee who has engaged in violent and threatening behavior towards a supervisor. She also does not claim that the CHRL in any way changes the applicable burdens of proof or any other rule of law which could be considered dispositive in this decision. Thus, while the CHRL may be broader than state and federal anti-discrimination law, on the facts of this case these claims are also dismissed.
For the aforementioned reasons, all of plaintiff's claims are dismissed. The only remaining claim is defendants' counterclaim for assault. Defendants allege jurisdiction for their counterclaim under 28 U.S.C. § 1343 and 28 U.S.C. § 1367(a). There is no jurisdiction pursuant to 28 U.S.C. § 1343 as defendants do not allege any facts to support a conclusion that Pearson's assault was done in furtherance of a conspiracy, under color of state law, or pursuant to any other grounds providing jurisdiction under 28 U.S.C. § 1343. With regard to supplemental jurisdiction, "district courts may decline to exercise supplemental jurisdiction over a claim ... if ...
Pearson might argue that these inferences should be overcome in this case because there is evidence that she was only hired to help UTS escape liability for the Alvarado situation. This argument is foreclosed, however, by the fact that Pearson was replaced by two minorities, at least one of whom is black. A history of firing people of a certain race and replacing them with people of the same race does not suggest discriminatory motivations towards people of that race. Furthermore, the record before the Court contains significant evidence that Pearson was a trusted member of the UTS staff who, even in the days leading up to December 4, was expected to make significant contributions to the admissions office for the foreseeable future. See Ex. 23 to Wallace Affirm. (emails between Hendricks and Pearson discussing recruitment strategy and upcoming events which Pearson should attend); Ex. 19 to Wallace Affirm. (advertisement from AM New York dated November 27, 2006 informing prospective students to contact Pearson for information regarding UTS).
Thus, there can be no doubt that Pearson's dismissal was the result of events that occurred in close proximity to December 5, the date of her termination. Defendants claim the motivating event was Pearson's behavior on December 4. Pearson argues it was her complaints of racial discrimination.
Thus, Pearson's mild version of events is refuted by third party actions and her lengthy hospital stay.
