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September 16, 1993

JUANITA E. McNEIL, Plaintiff,


The opinion of the court was delivered by: SONIA SOTOMAYOR


 At the heart of this action are the allegations by pro se plaintiff Juanita McNeil, an English-speaking African-American, that Filipina-American nurses spoke Tagalog in her hospital workplace in order to isolate and harass her, and that their communication in Tagalog impeded her ability to perform her job effectively. The questions in this case are troubling, and the issues and problems are likely to become more pervasive as our society grows increasingly multiracial and polyglot. There is no simple solution, for just as a workplace English-only policy potentially violates the rights of non-English speakers, plaintiff here contends that allowing co-workers to communicate in a foreign language violates her rights, as a native English speaker. See, e.g., Equal Employment Opportunity Commission ("EEOC") Guidelines on Discrimination Because of National Origin, 29 C.F.R. § 1606.7(a) (1991) ("A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin.")

 Plaintiff's claims will ultimately be addressed at trial. Currently before the Court are cross-motions for summary judgment on a variety of issues. As explained below, defendants' motion for partial summary judgment, which concerns a number of procedural and statutory issues, is GRANTED IN PART, and DENIED IN PART. Plaintiff's motion for summary judgment, which addresses almost entirely the substance of her claims, is DENIED.

 I. Background

 Pro se plaintiff Juanita McNeil seeks to recover from defendants Marie Aguilos and the Bellevue Hospital Corporation pursuant to Title VII and 42 U.S.C. § 1981.

 McNeil began working for defendant Bellevue Hospital Corporation as a clerical office aide in August 1982. She transferred into Bellevue's pediatric nursing unit in 1984, where, she claims, defendant Marie Aguilos, the supervising head nurse of that unit, improperly trained her and subjected her to discriminatory treatment.

 McNeil complained to Bellevue's Director of Nursing in 1985 about Ms. Aguilos's treatment of her. She also complained that many of the nurses in the pediatric unit, including Aguilos, were from the Philippines and frequently spoke Tagalog, a Filipino language. Plaintiff alleges that Bellevue retaliated against her for these complaints by assigning her extra clerical duties for several months. Subsequently, Bellevue's Nursing Administration convened a meeting on October 22, 1985, to address her complaints. Although no action was taken against Aguilos as a result of this meeting, McNeil was transferred to a different shift within the pediatric unit, supervised by a different head nurse. McNeil describes numerous discriminatory incidents and alleges that the harassment and discriminatory treatment continued until her constructive discharge in late 1990.

 Plaintiff filed a charge of discrimination with the EEOC on November 15, 1990, accusing Ms. Aguilos of race discrimination, harassment, failure to supervise plaintiff, and using the Tagalog language as a discriminatory weapon against her and other non-Filipinos. Among her charges, she states that "on September 10, 1990 Marie Aguilos gave the unit report in Tagalog and when [McNeil] asked her the diagnosis of a specific patient she refused to tell [her]." A letter from Ms. McNeil to the EEOC, dated December 21, 1990, alerted the EEOC to additional difficulties that Ms. McNeil was experiencing at her job. The letter also mentioned that she had been unfairly denied promotions. The EEOC issued a right-to-sue letter dated June 24, 1991.

 On September 23, 1991, plaintiff commenced this action in this Court, alleging, inter alia, discrimination on the basis of race, national origin, and language, as well as retaliation. She alleges that as a result of the discrimination and retaliation, she was denied transfers and constructively discharged from her position. She seeks compensation, including back pay and benefits, and the institution of a policy requiring employees to speak in English, but "only while they are actually performing a job duty."

 Judge Lawrence M. McKenna entered a default judgment against defendants on August 26, 1992. The case was subsequently transferred to me, and by order dated January 27, 1993, I granted defendants' motion to vacate the default pursuant to Fed. R. Civ. P. 60(b). I subsequently denied plaintiff's motion to certify the January 27, 1993 Order pursuant to 28 U.S.C. § 1292(b), which would have permitted her to petition the Court of Appeals for leave to pursue an interlocutory appeal. See 820 F. Supp. 77. Defendants thereafter moved for partial summary judgment.

 Plaintiff cross-moves for summary judgment. In their response to plaintiff's motion, defendants included the affidavit of defendant Marie Aguilos and that of Mofti Aujero, who has been the Associate Director of Maternity and Child Health in Bellevue Hospital's Department of Nursing since 1987. Plaintiff addressed these affidavits in her reply papers.

 Plaintiff appended to her papers a newspaper article that summarizes her position regarding the problems that may arise when different languages are spoken in a workplace. Without addressing its status as evidence in this motion, the Court quotes the following excerpt as illustrative of McNeil's position:

Juanita McNeil was checking a patient's chart in a pediatric intensive care unit when two nurses sitting at the desk next to her starting talking loudly.
"Loka, Loka," the nurses said over and over.
McNeil, a clerk, did not ask what they meant [thinking it to be a private conversation] . . . . the nurses left and a woman came in and asked to see her baby.
"She was acting very strange, but it was her baby, so I said, 'Come on mommy, let's go see your baby,'" she said. But the woman's demeanor made McNeil go find the nurses.
"They said, 'Oh, no, you didn't leave her alone with the baby, did you? We forgot to tell you, but OB/GYN just called and said she was coming down, but not to leave her alone with the baby, she's crazy.'"
In Tagalog, the main language of the Philippines, "loka-loka" means crazy woman, and the nurses' phone call was a warning to watch the mother, McNeil said. [The baby was fine, after all.]

 "Language Conflicts," in New York Newsday, May 19, 1993, at 15.

 II. Discussion

 Summary judgment may be granted where the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "The judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. at 250, 106 S. Ct. at 2511. Thus, the Court must perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all ...

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