United States District Court, S.D. New York
January 16, 2004.
MARIE CARMEN POINTDUJOUR, Plaintiff, -against- MOUNT SINAI HOSPITAL and LAURA GILES, Defendants
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
Pro se plaintiff Marie Carmen Pointdujour brought this Title VII action
against her former employer, Mount Sinai Hospital, and one of its Nurse
Managers, Laura Giles. Plaintiff claims that the defendants retaliated
against: her by terminating her employment after she complained that a
female co-worker had subjected her to same-sex sexual harassment. See
Am. Compl. ¶¶ 4, 8 and its addendum entitled "Additional Pacts." In
September 2002, this case was assigned to me with the consent of the
On September 25, 2003, defendants served (1) a Notice to Pro Se
Litigant Opposing Motion for Summary Judgment, (2) a Notice of Motion for
Summary Judgment with exhibits, (3) Defendant's Local
Rule 56.1 Statement, and (4) a Memorandum of Law.
On October: 27 and 29, 2003, Ms. Pointdujour served (a) Plaintiff's
Local Rule 56.1 Statement ("Pl. 56.1 Stat."), (b) an "Opposition of
Motion to Notice of Motion [for] Summary Judgment" (6 pages plus
exhibits), (c) a Preliminary Statement ("Prelim. St."), paginated 7
through 14, (d) a document entitled "Hostile Working Environment," and
(e) a letter to me enclosing the full transcript from her Unemployment
Insurance hearing before Administrative Law Judge Lynn A. Morrell at the
New York State Department of Labor on March 15, 2001 ("3/15/01 Tr.").*fn1
copy, the page numbers were cut off; at my request, defendants sent
me another copy of the 3/15/01 Tr. (with the page numbers intact), as
well as full transcripts of plaintiff's deposition testimony ("5/23/03
Tr." and "6/24/03 Tr.") and their annexed exhibits.
On November 14, 2003, defendants served a Reply Memorandum of Law. In a
November 18 letter, they requested oral argument on their motion. To
date, plaintiff has not requested this. In any event, I find that oral
argument is unnecessary. For the reasons set forth below, I grant
defendants' motion for summary judgment, and I dismiss plaintiff's
amended complaint with prejudice.
From 1992 until August: 18, 2000, Ms. Pointdujour worked as a Clerk
Registrar in the emergency room at Mount Sinai Hospital. (Pl. 56.1
Stat. ¶ 1.) Her immediate supervisor was John Mascia. (Id. at ¶
5.) Mr. Mascia's supervisor was defendant Laura Giles. (Pl. at 5/23/03
Tr. 119; Giles 9/25/03 Aff. ¶ 12.)
Plaintiff alleges that: she was sexually harassed by a female co-worker
for a period of about six or seven months prior: to August: 17, 2000.
(Pl. 56.1 Stat. ¶¶ 34, 37, 38, 50.) For the purposes of this motion, I
will assume the truth of her allegations about the co-worker.
Plaintiff concedes that: she did not report any harassment to her
employer until August 17, 2000. (Pl. at: 5/23/03 Tr. 56, 63-64.) Even
then, her "report" was made in a rather bizarre way:
. . . I told [Mr. Mascia] that I had [a] problem and I
needed to speak with him and could he please arrange
for me to speak to him. He asked me was it anything
that he should help me with? I says [sic] yes. I said
I want to speak to him and 1 want to speak to my
co-workers. He called the co-workers and then we had
the meeting. . . . I did not specifically state the
cause of the meeting, [but I did say that] 1 was being
harassed and I needed to speak to my co-workers.
(Pl. at 3/15/01 Tr. 42-43.) Mr. Mascia set: up the meeting about:
five minutes later, and held it in the registration area.*fn2
Mascia and several of the registrars attended, including the alleged
harasser. (Pl. at 3/15/01 Tr. 43-45; 5/23/03 Tr. 41-43.)
Once everyone was gathered, Mr. Mascia closed the door and told her
that she could speak. (Pl. at 5/23/03 Tr. 40.) By her account:
I started by saying my name is Marie Pointdujour.
I work here . . . The reason I asked you here is
to clear with you some problem that I am having
in, I respect everybody['s] opinion and I respect
everybody['s] religion and genders and so what,
but I do not want to have a sexual relationship
with my own gender.
(PI. at 3/15/01 Tr. 45.) In her earliest testimony, she claimed that she
"didn't say anything out of [the] ordinary" at this meeting. (Pl. at
3/15/01 Tr. 68.) But her recent Preliminary Statement goes into more
detail about what she said at the meeting:
What do you think [was] the reason for the meeting. Of
course I was telling you I am being harassed. I am not
a lesbian, I don't want: a lesbian lover. I don't care
if you are [a] bunch of bull dingers but, stop, stop,
harassing me. I am not into lesbianism. I am
uncomfortable hurt stop forcing me to become a bull
dinger. I don't want to walk around grabbing my
cr[o]tch like I am holding a penis. I have a vagina. I
am a woman happy and content with my womanhood. Stop
(Prelim. St. at p. 12, ¶ C.) There was a dramatic reaction to
plaintiff's speech. In her words: "The harasser screamed open the
closed-door [and] pushed Mr. John Ma[s]cia away. The meeting ceased."
(Ibid.) Plaintiff says that the meeting lasted about seven to ten
minutes; after it ended, everybody (except for the alleged harasser) went
back to their posts. (Pl. at 5/23/03 Tr. 4 2, 47-48.)
Prior to August 17, plaintiff "never mentioned anything" to her
employer about being harassed. (Pl. at 3/15/01 Tr. 47; see PI. at 5/23/03
Tr. 56, 63-64.)
On August 18, the day after the meeting, plaintiff came to work and was
handed a Warning Notice by union delegate Emma Samuel. The Warning
Notice, signed by Mr. Mascia and Ms. Giles, stated that plaintiff had
violated two of the employer's Rules:
[Rule] 13.2.21[:] Fighting, horseplay or other
disorderly conduct or annoying patients, visitors or
other employees on Medical Center premises. [Rule]
13.2.26[:] Any willful act or conduct detrimental to
patient care or to Medical Center operations.
(PI. at 5/23/03 Tr. 123-24 and its annexed Exh. 9.) The Notice then
described the August 17 meeting and concluded with the following
Your behavior was disruptive, inappropriate &
stopped the operations of registration and other
clerical functions. All present tried to stop you
from speaking unsuccessfully.
(Ibid.) After handing plaintiff the Warning Notice, Ms. Samuel and Mr.
Mascia escorted her to Ms. Giles's office. (Pl. at 5/23/03 Tr. 117-19.)
At that first meeting, Ms. Giles told plaintiff that she wanted her to
seek help from the hospital's Employee Assistance Program ("EAP"), and
plaintiff responded that she would not go to EAP. (PI. at 3/15/01 Tr.
58-60.) Ms. Giles placed plaintiff on suspension pending an
investigation. (Pl. at 5/23/03 Tr. 123.)
Ms. Giles says:
[After conducting further interviews,] 1 concluded
that I could not responsibly return Pointdujour to her
work with patients and staff until she got
confirmation from someone qualified to do a
pyschologica1 assessment that Plaintiff was stable and
fit to return to the department. Accordingly, I
suggested to Labor Relations that before allowing
Plaintiff to return to work, we have her get
documentation from the Hospital's Employee Assistance
Program ("EAP") confirming that she was mentally fit
to return to work.
(9/25/03 Giles Aff. ¶ 32.)
Plaintiff's union filed a grievance on her behalf, and plaintiff met
twice with Caryn Tiger, a Labor Relations Manager at Mount Sinai. (Def.
56.1 Stat. ¶¶ 35-46, 52-63; Pl. at 5/23/03 Tr. 126-32 and its annexed
Exh. 10; 9/25/03 Tiger Aff. ¶¶ 16-32.) At least as early as September
18, 2000, Ms. Tiger offered two options to plaintiff: (1) reinstatement
if she obtained documentation from EAP confirming that she was fit to
return to work; or (2) resigning for personal reasons. (Def. 56.1 Stat.
¶¶ 43-47; 9/25/03 Tiger Aff. ¶¶ 22-25 and Exhs. 4-6.) Plaintiff
rejected both options. In her own words:
Yes, I would like my job back. Not in that
circumstances I don't not in the circumstances
1 had to seek help to get my job back. . . .
(Pl. at 5/23/03 Tr. 157 with my emphasis added.) Since plaintiff
repeatedly refused to go to EAP, Mount Sinai fired her on January 19,
2001. (9/25/03 Giles Aff. ¶ 37 and its Exh. 3; 9/25/03 Tiger Aff.
¶¶ 32-33; Def. 56.1 Stat. ¶¶ 64-65.)
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment will be granted only when there are no genuine issues of
material fact and the moving party is entitled to a judgment as a matter
of law. The Court will construe the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in her favor.
The moving party bears the burden of demonstrating that no genuine issues
of material fact exist, and all inferences and ambiguities will be
resolved in favor of the non-moving party. Once the moving party has
provided sufficient evidence to support a motion for summary judgment, the
non-moving party muse set forth specific facts that show that there is a
genuine issue for trial. Jones v. New York City Housing Authority, 2001
WL 406180, at *5 (S.D.N.Y. Apr. 20, 2001) (Kaplan, J.) (Eaton, M.J.);
Winkfield v. City of New York, 1999 WL 1191544, at *2 (S.D.N.Y. Dec. 15,
1999) (Baer, J.). The Court is required to review the pleadings of a pro
se plaintiff by a more lenient standard than that accorded to the
pleadings written by lawyers. But conclusory allegations, speculation,
conjecture or denials, without more, will not defeat a motion for summary
judgment. Jones, 2001 WL 406180, at *5; Winkfield, 1999 WL 1191544, at
Under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et. seq., it is unlawful for an employer to
discriminate against any of its employees because the employee has
opposed any practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a).
Courts analyze retaliation cases by using the Title VII framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
93 S.Ct. 1817, 1824 (1973).
At the first step of the McDonnell Douglas framework, a plaintiff must
establish a prima facie case. In order to establish a prima facie case of
retaliation, a plaintiff must show four elements:
 that she "engaged in protected participation or
opposition under Title VII,  that the employer was
aware of this activity,  that the employer took
adverse action against the plaintiff, and  that a
causal connection exists between the protected
activity and the adverse action, i.e., that a
retaliatory motive played a part in the adverse
Cifra v. G.E. Co., 252 F.3d 205
, 216 (2d Cir. 2001), quoting Sumner v.
United States Postal Service, 899 F.2d 203
, 208-09 (2d Cir. 1990).
Once the plaintiff has made out a prima facie case, the second step of
the McDonnell Douglas framework requires an employer to show "evidence of
a legitimate, nonretaliatory reason for the challenged employment
decision." Cifra, 252 F.3d at 216. If the employer does this, then the
third step requires the plaintiff to "point to evidence that would be
sufficient to permit a rational factfinder to conclude that the
employer's explanation is merely a pretext for impermissible
For the purposes of this motion, I will assume that plaintiff has met
her minimal burden of proving a prima facie case. Although it is
debatable, I will assume that her version of her August 17 and 18
comments amounted to a complaint to her employer about a co-worker's
sexual harassment, and that it is sufficient to show the prima facie
elements 1 and 2. If so, then the prima facie elements 3 and 4 are shown
by the evidence that her complaint was followed swiftly by the August 18
suspension and the January termination.
We now move to the second step. Mount Sinai and Ms. Giles claim that
they had several legitimate, nonretaliatory reasons for their actions.
But I find that one reason is undisputed and sufficient. On August 18,
Ms. Giles asked plaintiff to seek help at Mount Sinai's Employee Assistance
Program, and plaintiff
refused. For the next five months, Ms. Tiger told plaintiff that she
could return to work if she went to EAP and received a satisfactory
psychological assessment. That was a reasonable condition, for the
following reasons. First. Plaintiff's own version shows that her comments
at the August 17 meeting were odd, unprofessional, and disruptive to the
staff. (Prelim. St. at p. 12, ¶ C.) Second. In this lawsuit,
plaintiff has filed papers in which she indulges in malicious and
salacious invective. (See her Opposition at pp. 2-6.) Third. The
defendants submit documentary evidence to show that three co-workers made
separate complaints against her prior to 2000. An Asian-American nurse
wrote that plaintiff referred to her as "chinky eyes." (6/24/03 Tr.
Exhs. 15-16.) A male co-worker wrote that plaintiff was sexually
harassing him. (5/23/03 Tr. Exhs. 6-8.) A female co-worker complained
that plaintiff spread rumors about her husband. (6/24/03 Tr. Exh. 14.)
Fourth. The defendants submit evidence to show that plaintiff had
excessive absenteeism and that she was reprimanded for making an
inappropriate comment to patients over the loudspeaker. (Pl. at 6/24/03
Tr. 245-49 and its Exhs. 18-19; 9/25/03 Giles Aff. ¶¶ 10-11.)
According to Ms. Giles:
In January 2000, when asked to advise the patients
that visiting was suspended because the Department was
temporarily over-crowded, Plaintiff cause[d] an uproar
in the Emergency Department by taking to the public
address system to make a department-wide announcement
that "The doctors arid nurses do not want you to see
(9/25/03 Giles Aff. ¶ 10.)
We now move to the third step. In view of the above, any rational
factfinder would find that it was reasonable for Mount Sinai to require
plaintiff to go to the Employee Assistance Program for a psychological
assessment. Plaintiff admits that she refused to go to EAP, even though
she knew that this was her employer's condition before she could return
to work. It is irrelevant when she implies that she did not know about
the nature of EAP's services. (Pl. Rule 56.1 Stat. ¶¶ 43, 51, 59, 60,
62.) She had the assistance of a union representative, and she could have
easily obtained answers to any questions she may have had about EAP. Even
when the evidence is viewed in the light most favorable to plaintiff, it
shows that she was fired because she repeatedly refused to obey a
reasonable directive that she go to EAP. Plaintiff has failed to submit
"evidence that would permit a rational factfinder to conclude
that the employer's explanation is merely a pretext for retaliation."
Cifra, 252 F.3d at 216.
In short, Ms. Pointdujour is unable to make out a case of
discrimination or retaliation by Mount Sinai, or Ms. Giles or any of the
other employees and agents of Mount Sinai. It is anticlimatic to note
that Title VII never imposes liability on individual managers; Tomka v.
Sailer Corp., 66 F.3d 1295, 1313-17 (2d Cir. 1995).
I grant defendants' motion for summary judgment, and I dismiss
plaintiff's amended complaint with prejudice. I direct the Clerk's Office
to close this case.