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April 5, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge



Plaintiff Perla Punsal, a former employee of defendant Mt. Sinai, filed this lawsuit in June, 2001 claiming that defendants discriminated against her on the basis of age and nation of origin and retaliated against her for filing an administrative complaint alleging discrimination. She charged them with violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., New York State Executive Laws §§ 296 and 297, and Title 8 of the New York City Administrative Code.


  Plaintiff, a Filipino woman who was 57 years old on the last date she reported for work, was hired by defendant Mt. Sinai in 1987. In that capacity, plaintiff served as a pathology laboratory supervisor at Queens Hospital Center ("QHC"). Defendant Dr. Susanna Levy, age 65 at the time plaintiff ceased working for Mt. Sinai, was plaintiff's supervisor at QHC from 1996 through the duration of plaintiff's employment.

  In 1998, Dr. Cyro Calas, another technologist and supervisor at QHC, suffered a heart attack and could not return to work. According to plaintiff, Calas's departure led to her being promoted to senior supervisor of the lab (although Dr. Levy continued to serve as plaintiff's supervisor). See Punsal Decl. at f 4. Because the lab needed more than one supervisor, Yannick Louis, a non-Filipino woman 43 years of age, was hired to replace Calas in 1999. Innes Decl. at ¶ 9-10; Louis Dep. at 38-40; Levy Dep. at 30.*fn1

  On or about June 15, 1999, Dr. Levy sent plaintiff two memoranda. The first memorandum, entitled "insubordination," addresses plaintiff's failure to promptly inform Dr. Levy that a newly hired technologist did not report to work. Def.'s Ex. H. The letter states that the employee was supposed to arrive the morning of June 14th, but plaintiff did not inform Dr. Levy of the employee's failure to appear until a meeting later that same day. Dr. Levy charges: "Your failure to inform your supervisor is insubordination and endangers the laboratory's operation. As a supervisor, it is your duty to inform your superior of all personnel and other issues." Id. This same memorandum charges plaintiff with failing to adhere to Levy's directive, communicated to plaintiff four days earlier, to discontinue overtime coverage for lunch. The second memorandum is entitled "negligence." Id. In it, Levy charges plaintiff with failing to conduct a proficiency test for four working days (six calendar days). Id. Levy writes: "Proficiency testing must mimic patient sample testing. At no time do we delay patient testing for 6 calendar days." Id.

  On or about June 17, 1999, Punsal attempted to speak with Dr. Gezerov, Director of Pathology, about her perception that Levy was discriminating against her. Punsal Dep. at 83. Dr. Gezerov directed Punsal to speak with Veronica Henry, Pathology Laboratory Manager. Punsal offered Henry the following examples of discrimination: Levy favored Louis; Levy and Louis made changes without telling her; Levy and Louis entered her office on one occasion and took over plaintiff's scheduling duties; Levy asked Louis to tell the other technologists what to do; Pathology Department books and manuals were removed from her office while she was away on leave earlier in the month; and based on statements made by Louis, she thinks Levy must have been "spreading around" discrimination because, otherwise, Louis would not have reason to make such statements. Id. at 81-86.

  Plaintiff took a medical leave of absence from QHC on June 22, 1999. She ceased work due to depression, anxiety, hypertension and headaches. Def.'s Ex. D. She began to receive short-term disability benefits at this time.

  On or about July 16, 1999, plaintiff filed a joint complaint with the State Division of Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC") (hereinafter "SDHR/EEOC complaint") exclusively on the grounds that defendants discriminated against her on the basis of age.

  On September 7, 1999, Mt. Sinai hired Janet Goldin to fill in for plaintiff while she was out on leave. Innes Decl. at ¶ 19. At the time, Goldin was 51 years of age. Id.

  In December of 1999, plaintiff's short-term disability benefits were discontinued.

  On or about May 3, 2000, Hazel Copeland from Mt. Sinai's Human Resources Department, sent plaintiff a letter informing plaintiff that Mt. Sinai could not hold Punsal's position open for her any longer. The letter reads:
"A review of your records indicates that you have been unable to work since June 21, 1999. As I am sure you understand, we can no longer hold your position for you. If your medical condition changes to the extent that your are able to return to work and assume your full duties as Laboratory Supervisor, please contact me."
Def.'s Ex. E. On May 15, 2000, defendants' insurance carrier, UNUM, sent Copeland a letter stating that plaintiff was no longer eligible for disability benefits based on its review of Punsal's claim. Def's Ex. I. UNUM's letter to plaintiff justifies its decision on the grounds that "according to our review of the medical records provided, there is no objective evidence demonstrating restrictions or limitations which would prevent you from performing each of the material duties of the occupation that you regularly perform for your Employer." Def.'s Ex. D. Plaintiff appealed UNUM's denial, but on September 6, 2000, UNUM sent Copeland another letter reaffirming its decision to refuse plaintiff long-term disability benefits. Def.'s Ex. I.

  When plaintiff still had not returned to the lab at QHC, Janet Goldin became a permanent replacement for plaintiff on October 2, 2000.

  On May 21, 2001, the EEOC issued plaintiff a "Notice of Right to Sue" letter in which it informed plaintiff that the Commission was closing plaintiff's case. Pl.'s Ex. G. On January 29, 2003, the State Division of Human Rights sent plaintiff a letter stating that the Division declined to notice Punsal's complaint for a hearing on the ...

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