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March 30, 2001


The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.


Barbara Boyd, ("Plaintiff"), an African-American woman, brings this action for declaratory and injunctive relief and damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), and 42 U.S.C. § 1981 ("§ 1981"). Plaintiff alleges that the Defendants, Presbyterian Hospital in the City of New York (the "Hospital"), and Kathleen Dunleavy, ("Dunleavy"), (collectively "Defendants"), discriminated against Plaintiff on the basis of her race. Defendants move pursuant to Fed. R. Civ. P. 56, for summary judgment. Alternatively, Defendants move pursuant to Fed. R. Civ. P. 12(f), to strike Plaintiff's request for damages. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED.


A. Plaintiff's Employment

On August 17, 1980, Plaintiff began her employment with the Hospital as a staff nurse. (Pl.'s 56.1 Stmt. ¶ 1; Defs.' 56.1 Stmt. ¶ 1.)*fn1 Plaintiff's duties included "patient care and charge responsibility." (Pl.'s 56.1 Stmt. ¶ 2; Defs.' 56.1 Stmt. ¶ 2.) Plaintiff worked as a staff nurse in various departments within the Hospital until September 1993, when she was assigned to work in the Adult Neurology Department ("Neurology").*fn2 (Pl.'s 56.1 Stmt. ¶¶ 3-4; Defs.' 56.1 Stmt. ¶¶ 3-4.) Plaintiff continued to work in Neurology as of the filing date of Plaintiff's 56.1 Statement. (Pl.'s 56.1 Stmt. ¶ 4; Defs.' 56.1 Stmt. ¶ 4.) In September 1993, Dunleavy became Plaintiff's immediate supervisor when Plaintiff, at her own request, was transferred back to Neurology. (Pl.'s Dep. at 26-30, 32-33.) In September 1995, Dunleavy was transferred to a different department. (Pl.'s 56.1 Stmt. ¶ 8; Defs.' 56.1 Stmt. ¶ 8.) Currently, Dunleavy no longer supervises Plaintiff. (Id.)

Plaintiff does not claim she was ever denied a promotion at the Hospital because of any discriminatory treatment by anyone. (Pl.'s 56.1 Stmt. ¶ 48; Defs.' 56.1 Stmt. ¶ 48.) Throughout Plaintiff's employment with the Hospital, Plaintiff was never demoted. (Pl.'s 56.1 Stmt. ¶ 49; Defs.' 56.1 Stmt. ¶ 49.) Plaintiff's level of seniority was never affected in any way and she never was denied a salary increase because of discrimination by anyone at the Hospital. (Pl.'s 56.1 Stmt. ¶ 50; Defs.' 56.1 Stmt. ¶ 50.) Despite the above, Plaintiff nevertheless alleges that Dunleavy discriminated against her during the time Dunleavy served as Plaintiff's supervisor.

B. The Percocet Incidents

In June 1994, Plaintiff admitted to Dunleavy that she had accidentally taken home a Percocet tablet. (Pl.'s 56.1 Stmt. ¶ 14(h); Defs.' 56.1 Stmt. ¶ 14(h).) Percocet is a narcotic drug. (Id.) Plaintiff alleges that subsequently Dunleavy accused Plaintiff of taking home two Percocet tablets in August 1994. (Pl.'s 56.1 Stmt. ¶ 14(h); Defs.' 56.1 Stmt. ¶ 14(h).) However, Plaintiff was on vacation in August 1994, a fact which Plaintiff claims that Dunleavy knew.*fn3 (Pl.'s 56.1 Stmt, at 26; Pl.'s Dep. at 194-96). Dunleavy's August Percocet accusation made the Plaintiff "very upset." (Pl.'s Dep. at 197, 211.) In particular, Plaintiff was concerned that the "accusation" of taking the Percocet tablets could lead to her being "dishonorably discharge[d]" from her military job even though no such result occurred from the admitted June accident.*fn4 (Pl.'s Dep. at 296.) Plaintiff also claims that in August 1994, Dunleavy told other Hospital employees that Plaintiff had taken the Percocet. (Pl.'s Dep. at 207.)

In September 1994, Plaintiff discussed "The August Percocet Incident" with Marianne Kerner, ("Kerner"), a union delegate. Kerner then filed a grievance on Plaintiff's behalf with the Hospital charging that the union contract had been violated as a result of Dunleavy's "harassment re: inappropriate and false accusation." (Pl.'s 56.1 Stmt. ¶ 30; Pl.'s Dep., at 210-18 (the reference in the Plaintiff's deposition to Maryann Kiernan appears to be simply a transcription error); Defs.' 56.1 Stmt. ¶ 30.) Plaintiff's "Step I" grievance was heard at a meeting at which Dunleavy, Kerner and Plaintiff were present. (Pl.'s 56.1 Stmt. ¶ 32; Pl.'s Dep. at 215; Defs.' 56.1 Stmt. ¶ 32.) At the conclusion of "Step I," Kathy Stendor ("Stendor")*fn5 wrote a letter to Kerner stating that Dunleavy "has apologized for any comment made which may have been misconstrued." (Pl.'s Dep. at 242-43; Rasin Aff., Ex. I.) Kerner and Plaintiff instituted "Step II." (Pl.'s 56.1 Stmt. ¶¶ 34-35; Defs.' 56.1 Stmt. ¶¶ 34-35.) As a result of "Step II," Hospital management sent a letter to a union delegate stating that Plaintiff was not involved with a Percocet loss in her unit.*fn6 (Rasin Aff., Ex. J.) Also as a result of the "Step II" grievance, Dunleavy wrote a letter to Plaintiff on February 27, 1995, which "assur[ed Plaintiff] that no accusations were made against her regarding her handling of controlled substances." (Pl.'s 56.1 Stmt. ¶ 37; Defs.' 56.1 Stmt. ¶ 37; Rasin Aff., Ex. F.)

C. Christmas Vacation

Plaintiff alleges that Dunleavy denied Plaintiff's request to have a vacation day on Christmas 1993, and Christmas 1994. (Defs.' 56.1 Stmt. ¶ 14(a); Pl.'s 56.1 Stmt. ¶ 14(a).) Plaintiff claims that in December 1993, Plaintiff had requested vacation for Christmas, but that Dunleavy told her that "she couldn't give [her] the time off [because she doesn't] give vacation time during the holidays."*fn7 (Pl.'s Dep. at 41-42.) However, Dunleavy claims that she does give vacation on Christmas to employees when it is requested. (Dunleavy Dep. at 128-29.)

Plaintiff claims that a white nurse, Mary McManis ("McManis"), was given vacation from December 25, 1993 to January 7, 1994.*fn8 (Pl.'s Dep. at 41-42, 60-61.) Thus, in January 1994, the time of the year when the Hospital staff submits vacation request forms for that year, Plaintiff claims that she requested vacation during Christmas 1994. (Pl.'s Dep. at 42.) Plaintiff alleges that Dunleavy again told Plaintiff that she doesn't give vacation during the Christmas holiday. (Id.) Nevertheless, in 1994, Plaintiff was given vacation from December 16, at 7:30 p.m., to December 25, at 7:00 p.m. (Pl.'s Dep. at 100-01.)

As a result of Dunleavy's denial in January 1994 of Plaintiff's request for a vacation day on Christmas 1994, Plaintiff contacted union delegate Marie Fetell, ("Fetell"), who spoke with Dunleavy. (Pl.'s Dep. at 43.) Plaintiff's conversation with Fetell allegedly led to a conversation between Plaintiff and Dunleavy in which Plaintiff claims that Dunleavy told Plaintiff that it is her policy not to "give vacation during the Christmas holiday." (Id.)

D. The Patient Fall

On Plaintiff's performance appraisal covering the period September 5, 1993, to June 30, 1994, ("1993 evaluation"), Dunleavy attributed one "patient fall" to Plaintiff.*fn9 (Pl.'s 56.1 Stmt. ¶ 14(g); Defs.' 56.1 Stmt. ¶ 14(g).) Plaintiff contends that the patient who fell was not assigned to her, but was assigned to a white nurse. Plaintiff claims that she had signed the incident report for the patient fall since "the first person that find [sic] the patient should fill out the incident report." (Pl.'s Dep. at 50.) Plaintiff claims that she explained to Dunleavy that the patient fall should not have been attributed to her, but that Dunleavy refused to remove the patient fall from Plaintiff's evaluation. (Id. at 50-51.)

Plaintiff again met with Fetell, this time to discuss the patient fall. (Id.) After Fetell called Stendor, Stendor indicated that she would remove the Patient Fall from Plaintiff's evaluation. (Pl.'s Dep. at 52.) The Patient Fall does not appear on Plaintiff's 1993 evaluation. (Rasin Aff., Ex. D.)

E. Patient Assignments*fn10

At Plaintiff's request, Dunleavy attended a meeting in September 1994, with Plaintiff and Lois Joseph ("Joseph"), the "CN-3"*fn11 nurse with the most seniority in Neurology. (Pl.'s 56.1 Stmt. ¶ 14(i); Defs.' 56.1 Stmt. ¶ 14(i).) In the meeting Plaintiff complained that Joseph assigned Plaintiff the most difficult patients on the floor. (Id.) Plaintiff claims that Dunleavy told her at the meeting that Plaintiff was assigned the most difficult patients because Dunleavy and Joseph knew Plaintiff could handle it.*fn12 (Pl.'s Dep. at 214.)

F. Medication Error Incidents*fn13

On a different day in June 1995, Dunleavy called Plaintiff into her office to discuss another possible error in the medication administered to one of her patients. (Pl.'s 56.1 Stmt. ¶ 14(c); Defs.' 56.1 Stmt. ¶ 14(c); see also Pl.'s Dep. at 121 (stating that this Digoxin incident is the second incident of which Plaintiff complains).) Apparently in this case Plaintiff placed her initials next to an incorrect dosage even though the correct dosage was in fact administered to the patient. (Pl.'s Dep. at 124 (stating that the patient needed to receive a .25 dose, received that dose, and that no medication error was committed).) Plaintiff was never reprimanded in connection with the Digoxin incident. (Pl.'s Dep. at 126.)

In addition, Plaintiff claims that Dunleavy "was constantly checking [Plaintiff's] charts to see if [Plaintiff] was making mistakes," and that Dunleavy tried to "hold [Plaintiff] responsible" for the two alleged medication error incidents because of her race. (Pl.'s Dep. at 107-108, 117.) Plaintiff alleges that, after these two incidents, there were rumors among Plaintiff's co-workers that Dunleavy scrutinized Plaintiff's job performance for mistakes "trying her best to get [Plaintiff] fired." (Pl.'s Dep. at 117-19.)

Following these incidents, Plaintiff claims that she spoke with several white nurses who claimed to have made medication errors and had patient falls, but they told her that Dunleavy did not include the med errors on their evaluations. (Pl.'s Dep., at 140-48.) Dunleavy claims that as part of her responsibilities, she has "included on the performance appraisals [including on those] of white nurses under [her] charge the number of medication errors [and patient falls] made by those nurses in the appraisal period." (Dunleavy Aff., at 3.) However, no appraisals of white nurses supporting this assertion were included with the Affidavit. Since Plaintiff never saw other nurses' evaluations, the parties dispute whether Plaintiff has knowledge of whether or not these evaluations in fact included medication errors. (Pl.'s Dep. at 140-48.)

G. The Patient Teaching Incidents

On several occasions in May 1995, Dunleavy informed Plaintiff that she was not checking off the correct box for "patient teaching" on the nurses' notes to indicate that she had reviewed with her patients their "learning needs." (Pl.'s 56.1 Stmt. ¶ 14(d); Pl.'s Dep. at 48, 137-37; Defs.' 56.1 Stmt. ¶ 14(d).) Plaintiff claims that white nurses were not questioned or reprimanded for failing to check off the correct box for "patient teaching."*fn15 (Pl.'s Dep. at 48-49.) According to Plaintiff, the alleged failure to check off the "patient teaching" box was mentioned on her evaluation. (Pl.'s 56.1 Stmt. ¶ 15 (d); Pl.'s Dep. at 49). However, Dunleavy never reprimanded her "in connection with . . . not checking off the learning box, " or "in any way punished [her] for not checking off that box." (Pl.'s Dep., at 139.)

H. Plaintiff's EEOC Charges and This Lawsuit

In October 1994, Plaintiff filed her complaint with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights. (Pl.'s 56.1 Stmt. ¶ 42; Defs.' 56.1 Stmt. ¶ 42.) The following month, Plaintiff spoke to Angela Kelly, ("Kelly"), Labor Relations Specialist from the EEOC, at the Hospital. (Pl.'s 56.1 Stmt. ¶ 39; Defs.' 56.1 Stmt. ¶ 39.) Plaintiff told Kelly "she believed Dunleavy discriminated against her because she accused Plaintiff of taking home two Percocets and included on Plaintiff's performance evaluation a patient fall that was not hers."*fn16 (Pl.'s 56.1 Stmt. ¶ 40; Pl.'s Dep. at 304; Defs.' 56.1 Stmt. ¶ 40.) Kelly told Plaintiff she would investigate ...

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