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MILES v. NORTH GEN. HOSP.

March 27, 1998

JOYCE MILES, Plaintiff,
v.
NORTH GENERAL HOSPITAL, THOMAS LONG, ALAN LIEBOWITZ, PEARL JOHN-STIELL, Defendants.



The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Defendants move for summary judgment dismissing plaintiff's remaining claims. Although the evidence is thin, I find that one of plaintiff's claims -- her age discrimination claim -- survives this motion for summary judgment. Indeed, plaintiff was 55 years old at the time she was fired, had worked for the Hospital for some 25 years, and was discharged under circumstances that could reasonably suggest that her age was a factor. For the reasons set forth more fully below, the motion for summary judgment is granted in part and denied in part.

 BACKGROUND

 A. The Facts

 1. Employment History and Job Responsibilities

 Plaintiff was born on July 18, 1939 and is of Jamaican national origin. (Miles Tr. at 77). She commenced her employment with the Hospital in approximately 1969 and continued working for the Hospital until her employment was terminated on December 16, 1994. (Amended Compl. P 11; Liebowitz Aff. PP 3-6, Exs. B, C, D; Miles Tr. at 79). Plaintiff was promoted to Clinical Supervisor in 1980, and from approximately 1990 through 1994, plaintiff was a Nursing Care Coordinator (hereinafter "NCC"). (Amended Compl. P 12; Miles Tr. at 14-20).

 In 1991, the Hospital relocated to a new building and plaintiff was assigned nursing and oversight responsibilities for the 6th floor, a 40-bed patient unit. (Miles Tr. at 231). From approximately 1993 until December 1994, plaintiff's immediate supervisor was Agnes Belgrave, an Assistant Director of Nursing ("ADN"). (Belgrave Tr. at 9-11). Belgrave is of Barbadian national origin and was born on September 4, 1941. (Belgrave Tr. at 9). The Director of Nursing from approximately 1990 until 1994 was Pearl John-Stiell. (Defs. 56.1 Statement P 24; Rockhead Aff. P 2). Stiell was born in Aruba on February 7, 1951 and was 43 years old at the time of plaintiff's discharge. (Stiell Tr. at 278). Termination of employment decisions in Nursing had to be discussed with Stiell. (Stiell Tr. at 167-68). Indeed, Stiell made the decision to terminate plaintiff's employment in December 1994. (Stiell Tr. at 8-9).

 As an NCC, plaintiff was responsible for patient care, a nursing staff, and the timely submission of various reports and "all the paperwork." (Miles. Tr. at 14-20; Stiell Tr. at 9-11, 54, 56-58, 251-56; Belgrave Tr. at 13-15). More specifically, plaintiff was responsible for the timely submission of Quality Improvement ("Q.I.") Reports, time schedules, monthly unit reports, inservice unit reports, skin care rounds sheets, and safety/risk management reports. (Stiell Tr. at 9-10, 54, 56-58, 251-56; Belgrave Tr. at 13-15). Also in her capacity as an NCC, plaintiff supervised a staff that included different levels of nurses, volunteers, and students. (See Liebowitz Aff., Ex. C).

 2. Performance

 Beginning in or around 1992, plaintiff started receiving oral and written warnings from her superiors concerning her failure to submit reports and other documentation in a timely fashion. In addition, plaintiff was warned about patient care issues on the floor for which she was responsible as NCC. The failure to submit timely reports and documentation continued in 1993 and 1994 until plaintiff was discharged from her position. Plaintiff was aware of the performance issue and does not deny that she failed to submit her reports in a timely fashion. Plaintiff claims, however, that her colleagues were equally deficient and that she was singled out for adverse treatment. (See generally Liebowitz Aff., Exs. C & D; Miles Tr. at 79-80, 85-90, 255-60, 264, 268-73, 298; Stiell Tr. at 8, 14, 48-49, 56-58, Belgrave Tr. at 35).

 In plaintiff's "1991 Job Evaluation," her supervisor commented that there was improvement in plaintiff's documentation but that there were "ommissions [sic] at times." In that same evaluation, however, the following comment appeared: "Ms. Miles has been very helpful in preparing Medical Record Committee and Risk Management Committee reports. Very flexible. Follows through with any assignment given . . . ." Of the 21 elements on which she was evaluated, plaintiff was ranked as having met or exceeded her job requirements for every element. (Id., 1991 Evaluation).

 Of the 21 elements on which she was evaluated in 1992, plaintiff was ranked as having exceeded normal expectations and job requirements on 19 elements. On the remaining two elements -- responsibility for unit and effective communication/positive hospital image -- plaintiff was ranked below meeting the requirements of her position. Stiell noted on plaintiff's 1992 evaluation that plaintiff needed improvement in time management because she did not complete assignments on time. Plaintiff acknowledged in the 1992 evaluation that she needed to submit her reports in a timely manner. (Id., 1992 Evaluation).

 Plaintiff's 1993 evaluation was demonstrably less favorable than her prior two evaluations. In this evaluation, she was ranked below meeting the minimum requirements of her position for 14 of the 21 elements. The evaluation contained a number of negative comments such as: (1) "patient care studies are deficient"; (2) "has to be reminded to submit reports"; (3) "documentation is sometimes deficient"; (4) "employee evaluations are still outstanding"; (5) "needs to be consistent in the review of policies and procedures with staff"; (6) "she usually has to be reminded to complete certain tasks"; and (7) "still deficient in submission of reports in a timely manner." (Id., 1993 Job Evaluation).

 Ironically, plaintiff's 1994 evaluation -- the year she was fired -- was, for the most part, favorable. In this evaluation, she was ranked below meeting the minimum requirements of her position for only two of the 21 elements. She was ranked as exceeding expectations in seven of the remaining 19 elements. Again, however, the evaluation contained negative comments about documentation and reports. Comments in this evaluation include: (1) "records of all inservices are not completed in a timely manner"; (2) "needs to improve in processing employees' evaluations in a timely manner"; and (3) "needs to improve the processing of her written assignments in a timely manner." This evaluation was dated July 1994, just five months before plaintiff was fired. (Id., 1994 Job Evaluation).

 3. Resignation Leading up to Discharge

 Plaintiff decided to resign from her position at the Hospital and explained her resignation in a letter dated March 24, 1994. The letter was addressed to Stiell and stated that plaintiff's "reason for resigning is that the pace have [sic] increased beyond my limits of cooping [sic] . . . . Currently things are changing so fast that I have to devote too much time trying to keep up with the current pace." (Liebowitz Aff., Ex. E). The letter also stated that, at times, plaintiff "felt insulted and undermined when subordinates are questioned about me in my absence and incorrect opinions are formed about me." (Id.). On March 25, 1994, plaintiff decided to rescind her resignation citing that "under the applicable labor and employment law guidelines, it is my legal right to exercise this option within six days." (Id.).

 From March 1994 until plaintiff was fired on December 16, 1994, she received approximately eight written warnings concerning late reports as well as problems on her floor with patient care, including one dated December 16, 1994 -- the day plaintiff was fired. (Liebowitz Aff., Ex. D (twice plaintiff received two written warnings on the same day)). On December 15, 1995, Stiell advised plaintiff that if she did not resign from her position by December 16, 1995, she would be fired. (Id.). Apparently, Stiell gave plaintiff the option of resigning in lieu of termination two weeks prior to the December 15, 1994 letter. (Id.).

 In fact, prior to being discharged, Alan Liebowitz, Director of the Hospital's Human Resources Department, spoke to plaintiff about resigning. (Liebowitz Tr. at 74-77). Plaintiff claims in addition that Stiell offered her three months' pay or the permission to work for an additional six months before finding a new job if plaintiff would resign. (Miles Tr. at 240-41, 244-45). Plaintiff did not resign and she was fired effective December 16, 1994. (Compl. P 13).

 4. Statistics

 In response to discovery requests and in support of this motion, defendants compiled information on their nurse managers for the years 1990-1994 regarding age, national origin, and cessation of employment dates. (Liebowitz Aff. PP 13, 14, 15, 16, Exs. I, J, K).

 In her opposition, plaintiff does not admit to the authenticity of the compiled information because it was "produced by one of the named Defendants (an interested party), and Plaintiff has no idea regarding the reliability of the information." (Pl. Mem. at 8 n.7). Plaintiff, however, does not offer any proof to contradict the compiled information. In addition, defendants represent that all the underlying records upon which the compiled information was based were provided to plaintiff in discovery. (Defs. Opp. at 24 n.15).

 The Court has reviewed the statistical information provided by defendants as well as plaintiff's objection to the authenticity of the information and concludes that no reasonable jury would doubt the veracity of the information even if all reasonable inferences are drawn in favor of plaintiff. Therefore, I accept the compiled information as accurate. A summary of that information follows. *fn1"

 a. Age

 There were approximately 24 nurse managers who were active at the time of plaintiff's termination from employment. Age information is available for 22 of them and shows that six were under the age of 40 (27%); nine were between the ages 40 to 49 (41%); and seven were 50 or older (32%). When plaintiff was fired on December 16, 1994, four nurse managers were older than plaintiff and all of these individuals are still employed by the Hospital. The other three nurse managers 50 or older at the time of plaintiff's discharge are also still employed by the Hospital.

 Approximately 19 nurse managers resigned, retired, were laid off or were fired during the period from 1990 until plaintiff's discharge from employment. Age information is available on 18 of them and shows that when their employment with the Hospital ceased, four were under the age of 40 (22%); seven were between the ages 40 to 49 (39%); and eight were 50 or older (44%). *fn2" Three individuals were fired, whose ages at that time were 42, 44, and 54. One individual resigned in lieu of being fired, who was 38.

 Since plaintiff's discharge, two nurse managers have resigned (ages 41 and 33); one was let go due to a reduction-in-force (age 42); and one resigned in lieu of being fired (age 44).

 b. National Origin

 National origin information is available for 23 of the approximately 24 nurse managers who were active at the time of plaintiff's termination from employment. Of these 23: eight were from the United States; six were from the Philippines; four were from Jamaica (17%); two were from Barbados; one was from Trinidad; one was from Costa Rica; and one was either from Trinidad or the United States. All four Jamaican employees active at the time of plaintiff's discharge are still Hospital employees.

 National origin information is available on 18 of the approximately 19 nurse managers who resigned, retired, were laid off or were fired during the period from 1990 until plaintiff's discharge from employment. When their employment with the Hospital ceased, eight were from the United States; five were from Jamaica (27%); two were from Trinidad; one was from the Philippines; one was from the Virgin Islands; and one was from the United States or Grenada. Three individuals were fired, one of whom was from the United States and two of whom were from Jamaica. One individual resigned in lieu of being fired, who was from the United States.

 Since plaintiff's discharge, two nurse managers have resigned, one from the United States and one from the Philippines; one was let go due to a reduction-in-force who was from Costa Rica; and one resigned in ...


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