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DIAZ v. WEILL MEDICAL COLLEGE OF CORNELL UNIVERSITY

February 13, 2004.

MIGDALIA DIAZ, Plaintiff, -against- WEILL MEDICAL COLLEGE OF CORNELL UNIVERSITY, Defendant


The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

OPINION AND ORDER

Plaintiff Migdalia Diaz brought this Title YE action against her former employer, Weill Medical College of Cornell University ("Weill"), alleging that she was (1) discriminated against due to her religion (Jehovah's Witness) (Dkt. No. 1: Compl. ¶ 37) and national origin (Puerto Rican) (Compl. ¶ 38), and (2) fired in retaliation for filing a New York State Division of Human Rights complaint (Compl. ¶ 39). Presently before this Court is defendant Weill's summary judgment motion. (Dkt. Nos. 20-24, 32-36.) The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Dkt. No. 17.)

For the reasons set forth below, Weill's summary judgment motion is GRANTED. Page 2

  FACTS

  Plaintiff Migdalia Diaz is a Jehovah's Witness of Puerto Rican descent. (Dkt. No. 1: Compl. ¶¶ 9, 15-16; Dkt. No. 3: Answer ¶ 5 (admitting allegations of Compl. ¶ 9); Dkt. No. 20: Weill SJ Notice of Motion Ex. V:*fn1 Diaz Dep. at 25, 28; Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶¶ 6, 23; Dkt. No. 22: Weill 56.1 Stmt. ¶ 2; Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 2.) Weill hired Diaz as an administrative secretary in the Public Health Department in 1988 (Compl. ¶ 9, 13; Answer ¶¶ 5, 7; Diaz Dep. at 9-10; Diaz Supp. 56.1 Stmt. ¶ 1; Weill 56.1 Stmt. & Diaz Reply 12), where she performed "general secretarial duties such as typing," "opening the mail," and preparing her own time sheets by hand (Diaz Dep. at 11-12). In 1991, Diaz transferred to the Division of Digestive Diseases in the Department of Medicine, where her duties as an administrative secretary included organizing and filing applications for the fellowship program and coordinating fellowship interviews, logging in patient information, answering the phone, typing, and opening mail. (Diaz Dep. at 13-17; Diaz Supp. 56.1 Stmt. ¶ 2.) As a result of a departmental reorganization, Diaz was transferred to a "Digestive Diseases Clinic, where she made appointments, advised patients about procedures, obtained x-rays, answered phones, processed patient payments and transcribed dictation. (Diaz Dep. at 18-20; Diaz Supp. 56.1 Stmt. ¶ 3.) Page 3

 Diaz is Hired as Administrative Secretary in the Department of Physiology in April 1995

  In response to a listing in the Weill Employees Opportunities Bulletin dated February 27, 1995, Diaz applied for an "administrative secretary" position in the Department of Physiology. (Ex. V: Diaz Dep., at 29; Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 4; Weil 56.1 Stmt. & Diaz Reply ¶ 8.) The Department Administrator for the Department of Physiology, Theresa Neal-Provenzano, interviewed and hired Diaz for the position. (Diaz Dep. at 31-32; Diaz Supp. 56.1 Stmt. ¶ 5; Weill 56.1 Stmt. & Diaz Reply ¶ 7.) Provenzano was Diaz's supervisor. (Diaz Supp. 56.1. Stmt. ¶ 5.) Provenzano reported to the Department Chairman, Dr. Windhager. (Weill 56.1 Stmt. ¶ 7; Dkt. No. 1: Compl. ¶¶ 11-12; Dkt. No. 21: Provenzano Aff. ¶ 2.)

  It is undisputed that Diaz was hired as an "Administrative Secretary," with duties "typical of a secretarial and clerical position," and specifically entailing

 
typing, answering telephones, filing, copying, entering time sheets into [Weill's] payroll system, preparing purchase orders and expense reimbursement requisitions, picking up and delivering paychecks . . . and general assistance in connection with the Department.
(Weill 56.1 Stmt. ¶ 9; accord, Diaz Reply 56.1 Stmt. ¶ 9.) The "C-7 Administrative Secretary, Position Summary" states that the C-7 Administrative Secretary "[u]nder direction, provides secretarial/administrative assistance to the Department of Physiology." (Ex. H: "C-7 Administrative Secretary, Position Summary.") The description includes nine categories of "Position Activities":

  [1] Asst. Admin. Mgr. with financial activities including: data entry of grant payroll/supply related expenses on spreadsheet[;] monitor grant accounts by reconciling accounting/payroll statements for accuracy[;] forecasting of new and existing grant fund expenses[;] audit telephone/fax statements, recoup grant related expenses[;] generate reports as requested[.] Page 4

 
[2] Assist with personnel matters for academic staff, e.g. annual academic staff list, immigration, and other information requested for appointment.
[3] Types various documents including grant applications, correspondence, lecture schedules, exams, other student related material, prepares own correspondence on routine matters.
[4] Process applications for the Graduate School of Medical Sciences; mails requests for applications; maintains computer data files; distributes completed applications to faculty for review; schedules interviews; prepares and types acceptance/rejection letters; liaison with Graduate School faculty and students.
[5] Coordinates activities relating to department's teaching activities including arranging 3rd and 4th quarter lecture schedules, exams, class, student and laboratory conferences, room assignments; types exams and maintains confidentiality of grades; schedules faculty meetings; orders supplies and animals for student laboratories; ensures transcripts are distributed and returned in a timely manner; maintains computer files.
[6] Performs activities relating to weekly Physiology seminars and lectures: contacts guest speakers for topic information; prepares and types agenda; arranges for room, audiovisual equipment; luncheon.
[7] Prepares department time sheets on computer; maintains vacation/sick time records; picks up and delivers paychecks.
[8] Maintains inventory and orders office supplies; prepares purchase orders via computer, types check requisitions, travel advances/reimbursements; maintains standing orders; contacts vendors, purchasing, accounting to obtain additional information or resolve problems.
[9] Performs general administrative secretarial services including answering phones, filing, Xeroxing, and other job-related duties as required.
(Ex. H.)

  While conceding that she was an "administrative secretary," Diaz contradictorily alleges that she applied for a Physiology job posting for a "Staff Secretary," described as a job that:

  Provides secretarial and clerical services: answers and screens phone calls; maintains inventory and orders supplies; prepares various documents via word processor; assists with Page 5 processing applications for the Graduate School of Medical Sciences; coordinates activities related to department teaching activities; types exams; arranges exams, student and laboratory conferences; ensures transcripts are distributed and returned in a timely manner; performs activities related to weekly Physiology seminars and lectures; contacts guest speakers for topic information; prepares agenda; arranges for room; prepares department timesheets.

 (Dkt. No. 37: Hatton 10/20/03 Aff. Ex. 1: 2/27/95 Bulletin at 2.) Diaz claims that she "was never advised to different responsibilities [than those in the Staff Secretary posting] nor was she ever given a copy of Plaintiffs Exhibit #2, a document which [Weill] purports represents [Diaz's] job description." (Dkt. No. 40: Diaz Br. at 5; Diaz Dep. at 3; Hatton 10/20/03 Aff. Ex. 2: Administrative Secretary Position Summary & Activities, dated Apr. 13, 1995, which is identical to Ex. H, quoted above.)

  Nevertheless, Diaz concedes that she was the only C-7 Administrative Secretary in the Department of Physiology in April 1995 and throughout her time there. (Diaz Dep. at 30-31.) Diaz described her actual duties as follows:
I answered the phones. I typed letters [for Dr. Windhager]. I typed memos. I did timesheets [for myself and any other technicians, secretarial, or summer help]. I did purchase orders. I worked with the physiology seminars with the graduate school. I typed exams, transcripts, distribute[d] them, made copies for the students, did data entry on [Provenzano's] desk for [a faculty member's] grant. I picked up the mail. E-mails also. I sent out e-mails. I ordered supplies. I picked up payroll, biweekly payroll I would pickup.
When we had the speakers come, I would do travel arrangements for them, and I would do hotel arrangements . . . Sometimes, when they would send back their expenses, I would calculate it and there would be a check ready for them. And then I would go and pick up their check[] and have it sent out to them also.
(Diaz Dep. at 34-35; see also Diaz Dep. at 36, 42.) Page 6

  The Court agrees with Weill that there is no real difference between the job posting duties, the Administrative Secretary position activity listing of duties and the duties actually performed by Diaz, all of which were secretarial/clerical. (See Dkt. No. 36: Kahn Reply Aff. ¶¶ 12-14; see also Weill 56.1 Stmt. & Diaz Reply ¶ 9.)

 Diaz's Allegations of Discrimination

  According to Diaz, her co-workers in the Department of Public Health and the Division of Digestive Diseases knew she was a Jehovah's Witness. (Dkt. No. 20: Ex. V: Diaz Dep. at 25.) Diaz used vacation time to attend Jehovah's Witness's conventions each summer and "sometimes" told her supervisors the reason for her vacation request. (Diaz Dep. at 25-26.) Around the Easter and Passover holidays, she told co-workers she "celebrate[s] the memorial of Jesus Christ . . . because [she is] one of the Jehovah's Witnesses." (Diaz Dep. at 26.) Further, when her co-workers held birthday or Christmas parties, Diaz did not participate and informed her co-workers that she did not because those celebrations are "pagan" and "offensive to Jehovah." (Diaz Dep. at 27, 48-49.) Diaz testified that it was "[absolutely]" "fair to say that by the holiday season in 1995, it was generally known within the Department of Physiology that [Diaz was] a Jehovah's Witness." (Diaz Dep. at 49.)*fn2

  When asked at her deposition whether Diaz had "any reason to believe" that Provenzano and Windhager knew she was Puerto Rican, Diaz said "[n]ot that I recall." (Diaz Dep. Page 7 at 58.) However, Diaz now contends that because she "regularly brought gifts to Dr. Windhager from Puerto Rico, and occasionally spoke Spanish in the office, therefore both Mrs. Provenzano and Dr. Windhager knew or should have known [Diaz] is of Puerto Rican descent." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 24; Dkt. No. 38: Diaz 10/20/03 Aff. ¶ 7.) Diaz also believes that Provenzano knew of her Puerto Rican descent due to Diaz's "name, [her] noticeable accent (and inflection), [her] complexion, and ability to speak fluent Spanish." (Diaz 10/20/03 Aff. ¶ 7.)*fn3

  Alleged Discriminatory Comments To or About Diaz

  According to Diaz, the first discriminatory incident occurred when Diaz was examined in preparation for surgery in November 1998 and Provenzano allegedly "mocked" her for refusing to accept a blood transfusion. (Dkt. No. 20: Ex. V: Diaz Dep. at 109-14; see also Dkt. No. 40: Diaz Br. at 8.) When Diaz returned from the presurgical exam, Provenzano said "`so fast?'" (Diaz Dep. at 111.) Diaz explained that she refused to sign an authorization for a certain surgical procedure, to which Diaz alleges that Provenzano responded "`you people rather die than take "blood."' (Diaz Dep. at 111-12.)*fn4 Diaz responded that "Fm going for surgery and I don't welcome . . . comments to that effect." (Diaz Dep. at 114-15.) Diaz did not think Provenzano's comment "was a joke because around that time [Diaz] was trying very hard to get out of that department, and then Page 8 the surgery issue came up . . ." (Diaz Dep. at 115.) Diaz testified that after the surgery "I remained there until I was better, and then I stepped up on the job search again." (Diaz Dep. at 115.)

  Diaz alleges that on the same day as Provenzano's alleged comment, after a custodian named "Sally" spoke with Provenzano and Windhager, Sally came to Diaz's office and said "`ha, ha . . . you're going to have surgery and you're not going to take blood.'" (Diaz. Dep. at 112.) After Diaz told Sally about "bloodless surgery" and how that benefits everyone, Sally again spoke with Provenzano and Windhager, then returned to Diaz and said "well, Migdalia, that was at one time when there was tainted blood. There was a problem with tainted blood, you know. But there's not that problem anymore." (Diaz Dep. at. 113.)

  Diaz was on medical leave from November 19, 1998 to January 4, 1999. (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 12.) Diaz alleges that after she returned, Provenzano told Diaz that she "should question Dr. Windhager about the history of Jehovah's Witnesses" — a comment that Diaz interpreted as derogatory. (Diaz Dep. at 52-53, 125, 128.) Diaz's Reply 56.1 Statement gives the "date of this comment as January 4, 1999. (Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 30; see also Dkt. No. 22: Weill 56.1 Stmt. ¶ 30.)

  Diaz alleges that faculty member Dr. Alan Weinstein made disparaging comments to Diaz about her religion, including saying "`to hell with you and your God"' on two occasions. (Diaz Dep. at 133-39; Diaz Supp. 56.1 Stmt. ¶ 21; see Weill 56.1 Stmt. ¶ 31.) One time, when Weinstein gave Diaz an assignment to stuff envelopes with mailings, he told Diaz she should marry a rich man to support her ministry work. (Diaz Dep. at 134-35, 137-40.) When Diaz responded that "my master is my God, " Weinstein allegedly said "that's why you're sitting here stuffing envelopes" Page 9 and "to hell to you and your God."*fn5 (Diaz Dep. at 137-39.) Although Diaz testified at her deposition that she did know when Weinstein made the comments *fn6 (Diaz Dep. at 133-34, 137-39, 141), according to her Rule 56.1 Statements, she now "recalls Alan Weinstein made the first statement October 29, 1999 and the second January 11, 2000" (Diaz 56.1 ¶ 31; Diaz Supp. 56.1 Stmt. ¶ 21). Diaz admitted that Weinstein was "absolutely not" her supervisor and did not do her performance reviews. (Diaz Dep. at 139.)

  When Provenzano took disability leave for surgery from August 23, 1999 to November 1, 1999, Dr. Doris Herzlinger ran the department. (Diaz Supp. 56.1 Stmt. ¶ 18-19.) Diaz alleges that on "[t]he morning of October 7, 1999, hours prior to a farewell party for one of the research assistants, Dr. Herzlinger accosted Ms. Diaz claiming that her job description mandated that she clean" and "repeated over, and again, `you're here to clean' advising Ms. Diaz to refer to her job description." (Diaz Supp. 56.1 Stmt. ¶ 19; Diaz Dep. at 146-50.) Diaz believed the comment was derogatory because a few months earlier Herzlinger's research associate had told Diaz that "Doris Page 10 [Herzlinger] said [Diaz] was stupid because [Diaz] did not celebrate Windhager's birthday." (Diaz Dep. at 150-51.) Diaz interpreted the comment as "Im stupid because I'm a Jehovah's Witness and did not celebrate Dr. Windhager's birthday." (Diaz Dep. at 151.)

  Diaz also alleges that "[s]ometime in 1999, in the hallway directly in front of Diaz's office, Olaf Anderson [speaking with Weinstein] remarked see what happens when they . . . move in the community, it changes."' (Diaz Supp. 56.1 Stmt. ¶ 25; Diaz Dep. at 157-58.) At her deposition, Diaz could not recollect whether the comment was made in 1999 or 2000. (Diaz Dep. at 157.) Diaz "never told" Anderson that she was of Puerto Rican descent and did not know whether Anderson knew. (Diaz Dep. at 159.) When asked whether, aside from Anderson's alleged remark, she was aware of any other derogatory remarks about Puerto Ricans or about Diaz being Puerto Rican, Diaz responded "Not that I recollect anything now." (Diaz Dep. at 159.)

  Alleged Discrimination Relating to Diaz's Responsibilities

  Diaz complains that she "was routinely required to set up before and clean up after birthday parties and the Christmas event, despite her religious beliefs denouncing these occasions." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 38; see Dkt. No. 20: Ex. V: Diaz Dep. at 26, 48-50, 144, 148-49.) Diaz also alleges that Provenzano assigned her tasks that discriminated against her national origin as a Puerto Rican. Specifically, Provenzano "frequently had me prepare coffee, set up and clean up the conference room, [Diaz] contend[s] based upon [her] national origin, thereby treating [her] like an immigrant house servant. In addition, the representations that [Diaz] makes good coffee, are stereotypic assumptions directly linked to [her] national origin." (Dkt. No. 38: Diaz ¶ 7.) Page 11

  Diaz began her efforts to transfer out of the Department of Physiology as early as August 1998, before any of the purported comments relating to blood transfusions and Jehovah's Witnesses. (Weill 56.1 Stmt. & Diaz Reply ¶ 11; Diaz Dep. at 143-46, 176-77, 241-44.) Diaz wanted to transfer because "the department at that time was changing. There was less and less work to do. At that time she was just have me just make coffee." (Diaz Dep. at 143-44.) According to Diaz, when she asked Provenzano about the fact that there was less work in the department, Provenzano told her that there was nothing to do. (Diaz Dep. at 145-46.)

  Diaz now alleges that Provenzano altered her responsibilities for discriminatory reasons. Specifically, Diaz states that "[p]rior to Diaz's surgery, each of the professor's assistants would retrieve their own petty cash disbursements" (Diaz Supp. 56.1 Stmt. ¶ 14) and "prior to the discriminatory statements regarding plaintiffs surgery, Ms. Diaz only retrieved petty cash for seminar speakers, her immediate supervisor, and Dr. Windhager" (Diaz Supp. 56.1 Stmt. ¶ 15). However, after Diaz's return from medical leave, "Provenzano dispatched [Diaz] back and forth picking up petty cash for various individuals in the department despite her post-operative condition." (Diaz Supp. 56.1 Stmt. ¶ 14; Diaz Dep. at 174, 208-10.) More generally, Diaz alleges that in "January 1999, upon [Diaz's] return from surgery, her job functions were downgraded to cleaning responsibilities, making coffee, and running errands, after eleven years of intensive data entry, and medically related administrative support, involving patient chart management, receipt of payment, grant date inputting, securing travel arrangements for guest lecturers, etc." (Diaz Supp. 56.1 Stmt. ¶ 39; Diaz Dep. at 164.) Diaz argues that the reduction in her job duties must have been motivated by discrimination because "at the time [Diaz's] substantive job functions were taken away, there was Page 12 no reference to her job performance deteriorating. In fact, [Diaz] received the highest rating, `commendable' in the year ending June 1999, the first year that her duties were usurped." (Diaz Supp. 56.1Stmt. ¶ 40.)

  Diaz alleges that Provenzano "blocked [her] with human resources" to prevent her from transferring to another department because Provenzano "wanted [her] out of Cornell." (Diaz Dep. at 176-77.) Diaz's July 17, 2001 memorandum to Human Resources included a complaint that "[f]or the past three years my work has consisted of making coffee, picking up the mail twice a day, enter[ing] time sheets every other week, and [c]heck requisitions for Fed Ex. [a]nd other bills." (Dkt. No. 36: Kahn Reply Aff. Ex. A: Diaz 7/17/01 Memo.) Diaz also testified at her deposition that she had tried to transfer out of the department before her surgery and went on a "few" transfer interviews, but was not certain whether they were before or after her surgery. (Diaz Dep. at 143, 177.)

  Diaz testified in her deposition that Provenzano's course of conduct of harassment and intimidation included: "somewhere around" late 2001 saying Diaz "was disgusting in the presence of Tom Maack" (Diaz Dep. at 162, 169-70); sometime between November 1998 and July 2001 telling Diaz to send a seminar posting with the wrong date, which resulted in "people were standing around laughing and looking" at the incorrect flyer (Diaz Dep. at 162-63, 170-71); starting a weekly department social hour after Diaz returned from medical leave in 1999 and telling Diaz that she "had to make coffee for the social hour"*fn7 (Diaz Dep. at 164, 172); after Diaz's surgery, using her as an "errand boy" to pick up petty cash, having Diaz "sit there for days and days without giving [her] Page 13 any work to do, just pick up the mail and make coffee and would not let [her] transfer out of the department, as much as [Diaz] wanted to" (Diaz Dep. at 164); claiming Diaz lost forms while making photocopies and was not able to make copies correctly (Diaz Dep. at 164-65); changing Diaz's payroll status during her medical leave from disability to vacation (although Diaz got it corrected) (Diaz Dep. at 165-66); getting Diaz "involved in gossip" by making disparaging comments about a woman in another department (Diaz Dep. at 166); and giving Diaz incorrect grant application forms to fill out (Diaz Dep. at 166-67). In sum, according to Diaz, "[f]aculty members, Dr. Windhager, Terry Provenzano, Olaf Anderson, Tom Maack, Randy Silver, Dan Gardner, Grafstein and Alan Weinstein routinely mocked and taunted [Diaz] until she felt she was `under trial.'" (Diaz Br. at 13; Diaz Dep. at 194-98.)

 Diaz's Declining Performance Reviews and Eventual Termination

  All of Diaz's performance reviews were prepared by Provenzano and approved by Windhager. (Dkt. No. 20: Exs. I-L; Weill 56.1 Stmt & Diaz Reply ¶ 10; Ex. V: Diaz Dep. at 58-62, 65, 73-74.) Diaz's June 1998 and July 1999 performance reviews resulted in an overall rating of "commendable." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 16; Weill 56.1 Stmt. & Diaz Reply ¶ 10; Dkt. No. 20: Ex I: Diaz 1998 Performance Appraisal; Ex. J: Diaz 1999 Performance Appraisal.)*fn8 Diaz's June 2000 performance review resulted in a rating of "successfully meets expectations."*fn9 Page 14 (Weill 56.1 Stmt. ¶ 10; Ex. K.: Diaz 2000 Performance Appraisal.) Diaz viewed the "successfully meets expectations" rating as a "positive" review. (Diaz Dep. at 65.) The Court notes that the positive 1999 and 2000 performance reviews of Diaz occurred after the alleged comments by Provenzano (and "Sally") about Jehovah's Witnesses and blood transfusions in November 1998 (See pages 7-8 above). The 1999 and 2000 positive reviews also came after the January 4, 1999 comment allegedly made by Provenzano to Diaz that she should question Windhager about the history of Jehovah's Witnesses (See page 8 above). The 2000 positive performance review also occured after the two ...


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