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WAN SUN PENNY v. WINTHROP-UNIVERSITY HOSP.

April 20, 1995

WAN SUN PENNY, Plaintiff, against WINTHROP-UNIVERSITY HOSPITAL, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 Before the Court are several pre-trial motions. The plaintiff moves to amend the complaint in order to add a cause of action for retaliation. The defendant moves to exclude or dismiss the cause of action for retaliation, and to exclude certain evidence from being admitted under Fed. R. Evid. 408. The Court heard oral argument on the various motions on April 10, 1995, immediately prior to jury selection. At that time the Court tentatively ruled on several of the issues raised by the parties' motions, and indicated that the parties could make further submissions on the matters argued prior to the commencement of the trial.

 Further submissions were made to the Court regarding some of the evidentiary issues ruled upon, and on April 18, 1995, prior to opening statements, the Court heard additional argument on these matters. This Memorandum of Decision supplements and memorializes the Court's oral rulings of April 10 and April 18, 1995.

 BACKGROUND

 A. The Complaint.

 The plaintiff Wan Sun Penny ("plaintiff" or "Penny") commenced this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e-2000e-17 ("Title VII"), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 ("ADEA"), and New York State Executive Law §§ 290-301 ("Human Rights Law"). Penny alleges that the defendant Winthrop-University Hospital ("defendant" or "Hospital") discriminated against her on the basis of her race, national origin and age during the course of her work as a nurse in the outpatient dialysis unit at the hospital. She also alleges that the Hospital discriminated against her when it terminated her employment at the Hospital on October 1, 1991, and, that such discrimination continued during the course of the her grievance proceedings before Hospital officials.

 At the time the events alleged in the complaint occurred, Penny, who was born in Korea, was 53 years old and employed as a registered nurse at Winthrop Hospital. She had worked at the Hospital since February 24, 1974. Until October 1990, Penny worked as a floor nurse in Winthrop I. In June, 1990, she requested a transfer to the outpatient dialysis unit of the Hospital. She was recommended and approved for transfer by her superiors, and was transferred to the dialysis unit on October 3, 1990.

 Penny alleges that from the time she arrived at the dialysis unit, and repeatedly thereafter, she was discriminated against by being treated in a dissimilar and adverse manner with respect to the conditions of her employment, as compared to similarly situated non-asian and younger nurses. According to Penny, the alleged discrimination involved, among other things: being placed on probation despite having worked at the Hospital for sixteen years, and not being told that she was on probation; being reduced in grade from a level II nurse to a level I nurse after her transfer to the dialysis unit; being denied the services of the nurse educator for the dialysis unit, and not being adequately oriented or informed about the procedures at the dialysis unit; being excluded from meetings; and being assigned menial tasks such as cleaning up and secretarial duties.

 In August, 1991, Penny was accused by her superiors of allegedly making an error in diagnosing a patient's potassium level. Penny contends that she was wrongfully accused of the error. A similar charge had been made against her previously, in March 1991. At that time the Hospital suspended her for two days without pay, and warned her that any further incidents of unacceptable performance would result in her termination. As a result of the August, 1991 incident, the Hospital notified Penny on September 3, 1991 that (i) she was being removed from the dialysis unit, (ii) she was being suspended without pay, and (iii) if the Hospital's Human Resources Department did not find her an alternate placement by September 30, 1991, her employment would be deemed to have been terminated.

 Penny alleges she made several unsuccessful attempts to obtain alternate placement at the Hospital. The Hospital did not find an alternate placement for her, and Penny's employment with the Hospital was terminated as of October 1, 1991. Penny further alleges that prior to her termination, the Hospital had selected two young, white individuals to replace her in the dialysis unit.

 As a result of the incidents alleged in the complaint, on February 6, 1992 Penny filed a timely notice of discriminatory employment practices with the New York State Department of Human Rights. After being issued a right to sue letter, she commenced the present discrimination action under Title VII, ADEA and the New York Human Rights Law. The complaint seeks liquidated, compensatory and punitive damages, and demands a jury trial.

 B. The Plaintiff's Grievance Proceedings.

 The Hospital affords employees an opportunity to file a grievance for any problems relating to their work. The grievance procedure has four steps. First, the employee is to discuss the employment problem with either her Supervisor or Department Head. If the employee still remains dissatisfied, he or she may then file a formal, written grievance with the Hospital's Human Resources Department ("Human Resources"). In the second step, a conference hearing is scheduled between the employee, the immediate supervisor, the Department Head and a representative of Human Resources. The grievance is reviewed, and arguments are presented and heard. Other individuals with original information may be called to testify. A written decision by Human Resources is to be transmitted to the employee within 15 days after the hearing. If the employee is dissatisfied with the decision, he or she may proceed to the third step.

 In the third step, a conference hearing is scheduled between the employee, the Department Head, a Human Resources Representative, and the Senior Vice President of Administration, or his/her designee, as the Hearing Officer. The Hearing Officer may allow others to participate and may receive new evidence. The grievance and written decision from the previous step are discussed. A written decision is to be transmitted to the employee within 15 days of the hearing. If the employee is dissatisfied with the decision, he or she may proceed to the final step. In the fourth step, a final conference is scheduled between the employee, a representative of Human Resources, and the Hospital's Executive Vice-President, or his/her designee. No new evidence or witnesses are considered. The grievance is discussed, and a written decision is to be transmitted to the employee within 15 days from the conference. The decision from the fourth step is final.

 After receiving notice that she would be terminated if an alternative position were not found for her by September 30, 1991, Penny commenced a grievance proceeding. She filed a written grievance. A hearing was held on October 17, 1991, and a decision was issued on October 28, 1991 upholding Penny's termination. Penny proceeded to the third step. A hearing was held on November 11, 1991, which also resulted in a decision dated November 21, 1991 upholding her termination. Penny then proceeded to the fourth step, and a conference was held on December 11, 1991.

 Rather than issuing a decision within 15 days of the conference, the Hospital's President, Martin Delaney ("Delaney"), sent a letter to Penny dated February 3, 1992. The letter, described in more detail later in this decision, stated that Delaney agreed with the determination to discharge Penny. However, because of Penny's long service with the Hospital, Delaney was prepared to convert the discharge to a suspension without pay and reassign Penny to the nursing unit where she worked prior to being transferred to the dialysis unit, if, among other things, Penny executed a waiver and release of all claims asserted in the grievance proceedings. After some negotiating between Penny and Delaney, Penny refused to accept the offer. On March 20, 1992 Delaney notified Penny that he was upholding her discharge.

 C. The Defendant's Motion to Dismiss.

 On December 9, 1994, the Court heard oral argument on a motion by the defendant to dismiss the plaintiff's claims for compensatory and punitive damages under Title VII and ADEA. Prior to the argument, the plaintiff acknowledged that punitive damages are not available under the New York State Human Rights Law or ADEA, and withdrew her demand for punitive damages with respect to these two claims. She also withdrew any demand for compensatory damages under ADEA. However, Penny maintained that she was entitled to compensatory and punitive damages under Title VII, because the Hospital allegedly continued to discriminate against her after her termination, during the course of the grievance proceedings.

 Because the complaint did not contain any allegations of continuing discriminatory acts, or for that matter allegations of any discriminatory acts occurring after October 1, 1991, the Court granted the defendant's motion to dismiss the demands for compensatory and punitive damages under Title VII. However, the plaintiff was granted leave to amend her complaint in order to include the allegations of continuing discrimination occurring during the grievance proceedings, including several acts occurring after November 25, 1991, the effective date of the Civil Rights Act of 1991 ("1991 Act"), Pub. L. 102-166, 105 Stat. 1071. If proven, the acts of continuing discrimination occurring after November 25, 1991 could provide the plaintiff with a basis for a jury trial of the Title VII claims, as well as the remedies of compensatory and punitive damages with respect to these claims.

 The alleged continuing acts occurring after her termination were specified by the plaintiff as follows:

 
1. During the grievance proceeding, the Hospital would not let Penny review the patient chart that it claimed Penny had made an error on. According to Penny, another nurse whited-out a relevant part of the chart to erase an error that nurse had made on the chart. Penny claims that this other nurse was, in fact, responsible for the error Penny was wrongly accused of and terminated for.
 
2. The Hospital continued to search for alternate positions for Penny in December, 1991, and to the extent the search was restrictive, it constitutes an act of discrimination.
 
3. The Grievance Decision Penny received on February 3, 1992 was discriminatory. According to Penny, the decision stated that the Hospital would convert Penny's discharge to a suspension without pay and reassign Penny to her former nursing unit, if Penny executed a waiver and release of all claims asserted in the grievance proceeding. Penny alleges that conditioning her reinstatement on signing the waiver and release is discriminatory.
 
4. After Penny refused to sign the waiver and release, the Hospital upheld the discharge in a letter to Penny dated March 20, 1992. Penny contends the upholding of her discharge was an act of discrimination.
 
5. The Hospital sent a letter to the New York State Department of Education, Office of Discipline, stating that Penny was terminated from employment on March 20, 1992. Penny contends ...

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