United States District Court, S.D. New York
April 5, 2004.
PERLA PUNSAL, Plaintiff -against- THE MOUNT SINAI SERVICES OF THE MOUNT SINAI SCHOOL OF MEDICINE OF NEW YORK UNIVERSITY, MOUNT SINAI SERVICES at QUEENS HOSPITAL CENTER, NEW YORK CITY HEALTH and HOSPITALS CORPORATION, NEW YORK CITY, SUZANNA LEVY, M.D., and YANICK LOUIS, Defendants
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
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
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
"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 grounds that "processing the complaint will not advance
the State's human rights goals." Id.
Defendants move for summary judgment on the grounds that this court
does not have jurisdiction over plaintiff's Title VII claims relating to
national origin discrimination and plaintiff's age discrimination and
retaliation claims fail as a matter of law.
STANDARD OF REVIEW ON SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered
forthwith" if it is shown that "there is no genuine issue of material
fact and that the moving party is entitled to a judgment as a matter of
law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n.4,
106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed
factual issues can reasonably be resolved in favor of either party,
[while] materiality runs to whether the dispute matters, i.e., whether it
concerns facts that can affect the outcome under the applicable
substantive law." Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted).
In order to prove that a genuine issue of material fact exists, a
plaintiff "may not rest upon the mere allegations or denials of the
pleading[s]," but must by affidavit or otherwise "set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). "Conclusory statements, conjecture or speculation by the party
resisting the motion will not defeat summary judgment." Kulak v.
City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual
inferences in favor of the non-moving party. See Nora Beverages,
Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
1998). The moving party bears the initial burden of demonstrating an
absence of genuine issues of material fact. See Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is
met, the non-moving party "must produce specific facts indicating that a
genuine issue of fact exists. If the evidence [presented by the
non-moving party] is merely colorable, or is not significantly probative,
summary judgment may be granted." Scotto Almenas, 143 F.3d 105,
114 (2d Cir. 1998) (internal quotations and citations omitted)
(alteration in original).
Trial courts must be particularly cautious in awarding summary judgment
in employment discrimination actions where intent is at issue.
Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81, 87 (2d
Cir. 1996). From this cautionary warning, however, it does not follow
that a plaintiff is absolved from the responsibility of producing
sufficient evidence from which a reasonable jury could return a verdict
in plaintiff's favor. Welland v. Citigroup. Inc., 2003 WL
22973574, at 5 (S.D.N.Y. Dec. 17, 2003), citing Abdu-Brisson v.
Delta Air Lines, Inc., 239 F.3d 456, 461 (2d Cir. 2001), cert.
denied, 534 U.S. 993, 122 S.Ct. 460 (2001). "The summary judgment
rule would be rendered sterile . . . if the mere incantation of intent or
state of mind would operate as a talisman to defeat an otherwise valid
motion. Indeed, the salutary purposes of summary judgment avoiding protracted, expensive and harasing
trials-apply no less to discrimination cases than to commercial or other
areas of litigation." Finney v. Planned Parenthood of New York
City, Inc., 2003 WL 22928730, at 3 (S.D.N.Y. Dec. 10, 2003)
citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert.
denied, 474 U.S. 829, 106 S.Ct. 91 (1985).
I. Plaintiff's Title VII Claim Alleging Discrimination Based On
Nation of Origin
Plaintiff Punsal's SDHR/EEOC complaint contains an allegation of
discrimination based on age, but does not contain a similar allegation of
discrimination based on nation of origin or retaliation relating to such
a claim. Def.'s Ex. F.
Individuals may bring Title VII claims in federal court only after
filing a timely charge of employment discrimination with the EEOC and
receiving a right-to-sue letter from the EEOC or an analogous state
agency. 42 U.S.C. § 2000e-5(e); Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). The exhaustion
of administrative remedies is an "essential element" of the Title VII
statutory scheme and functions as a precondition to bringing such claims
in federal court. Legnani, 274 F.3d at 686.*fn2 The purpose of
the exhaustion requirement is to provide notice to the employer and to
encourage conciliation and voluntary compliance. See Butts v. New
York City Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d
Cir. 1993); Snell v. Suffolk County, 782 F.2d 1094, 1101 (2d
Cir. 1986). As such, federal courts may only hear Title VII claims "that
either are included in an EEOC charge or are based on conduct subsequent
to the EEOC charge which is `reasonably related' to that alleged in the
EEOC charge." Butts, 990 F.2d at 1401.
The first type of reasonable relatedness "is essentially an allowance
of loose pleading. Recognizing that EEOC charges frequently are filled
out by employees without the benefit of counsel and that their primary
purpose is to alert the EEOC to the discrimination that a plaintiff
claims she is suffering, we have allowed claims not raised in the charge
to be brought in a civil action where the conduct complained of would
fall within the `scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.'" Butts,
990 F.2d at 1402, citing Smith v. American President Lines,
Ltd., 571 F.2d 102, 107 n. 10 (2d Cir. 1978); see also Deravin
v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003). The second type of
"reasonably related" claim is one in which the plaintiff alleges that her
employer retaliated against her for filing an EEOC charge. Id.
"[I]n such situations, we have relaxed the exhaustion requirement based
on the close connection of the retaliatory act to both the initial
discriminatory conduct and the filing of the charge itself."
Id. "The third type of reasonably related claim is where a
plaintiff alleges further incidents of discrimination carried out in
precisely the same manner alleged in the EEOC charge." Id. at
1402-03. Of the three types of reasonable relatedness, only the first is
relevant to Punsal's failure to allege nation of origin discrimination in
the SDHR/EEOC complaint. The question, then, is whether plaintiff's claim
of nation of origin discrimination would fall within the scope of the
EEOC investigation which can reasonably be expected to grow out of her
In detail, plaintiff Punsal included the following in the
administrative complaint: 1) Punsal is 58 years of age; 2) her job
performance has been satisfactory since she was initially hired; 3) after
Louis was hired, Louis (in her early 30's) and Levy (age 60) "began a
pattern of harassment" against plaintiff by criticizing her work,
scheduling practices, and distribution of overtime; 4) Dr. Levy twice
falsely accused plaintiff of negligence on June 15, 1999; 5) plaintiff
complained to Dr. Glezerov, Director of Pathology, who is in his early
60's, to no avail; and 6) plaintiff took a medical leave of absence
because she could no longer stand the harassment stemming from Dr. Levy's
desire to get her "out" due to age and preference for Louis, who is
younger than plaintiff. By contrast, in the complaint filed before this
court, plaintiff Punsal charges that defendants Levy and Louis treated
her in a dissimilar fashion compared to non-Filipino employees and Levy
previously fired other Filipino mangers. See Pl.'s Complaint at
¶ 32, ¶ 34.
Even under the "loose pleading" standard, plaintiff's claim that she
was discriminated against on account of her Filipino descent has no
relation to her claim of age discrimination in the SDHR/EEOC complaint.
See Sotolongo v. New York City Transit Authority, 216 F.3d 1073
(2d Cir. 2000) (claims of age and national origin discrimination are not
reasonably related to disability claim); Joseph v. America Works.
Inc., 2002 WL 1033833 (S.D.N.Y. May 21, 2002) (disability
discrimination claim is not reasonably related to charge of race
discrimination in handling employee medical leave requests); Drummer
v. DCI Contracting Corp., 772 F. Supp. 821, 825-26 (S.D.N.Y. 1991)
(religious discrimination and sex discrimination claims are not
reasonably related but wholly distinct). Given the factual dissimilarity
between the two allegations of discrimination, and recognizing that "the
`reasonable relatedness' test is not satisfied by the improbable
possibility that the EEOC could have stumbled into a new universe of
allegations that the plaintiff alleges for the first time in [her]
complaint," Chinn v. City Univ. of New York School of Law at Queens
College, 963 F. Supp. 218, 223 (E.D.N.Y. 1997), the SDHR/EEOC could
not reasonably have been expected to investigate Punsal's allegations of
nation of origin discrimination. See Hansen v. Danish Tourist
Bd., 147 F. Supp.2d 142, 151-54 (E.D.N.Y. 2001). Similarly, the
SDHR/EEOC complaint would not have put defendants on notice of the nation
of origin claims she pursues in this court, Osier v. Broome
County, 47 F. Supp.2d 311, 321 (N.D.N.Y. 1999) citing Cooper v.
Xerox Corp., 994 F. Supp. 429, 432 (W.D.N.Y. 1998).
Even if, however, the nation of origin and age discrimination claims
were reasonably related, "the `reasonably related' doctrine does not
excuse a failure to include in an administrative complaint allegations
about discriminatory acts that had already occurred at the time the
complaint is filed. Rather, the doctrine permits a court to consider
claims `based on conduct subsequent to the EEOC charge which is
`reasonably related' to that alleged in the EEOC charge.'" Hall v.
City of New York, 2002 WL 472057, at 4 (S.D.N.Y. Mar. 27, 2002)
(emphasis in original) citing Butts, 990 F.2d at 1401. Because the
purpose of the doctrine is to allow subsequent claims that are
"sufficiently similar to those set forth in the original complaint," it
"does not permit a plaintiff to bring suit based on alleged prior acts of
discrimination that could have been, but were not, asserted in the EEOC
charge that was filed" Id. citing Malarkey v. Texaco, Inc.,
983 F.2d 1204, 1208 (2d Cir. 1993). Here, the allegedly discriminatory acts
based on nation of origin already occurred at the time plaintiff filed
her SDHR/EEOC complaint. Given that plaintiff could have included the
nation of origin claim in plaintiff's SDHR/EEOC complaint, the
"reasonably related" doctrine does not excuse her failure to charge
defendants with nation of origin discrimination at the administrative
Because plaintiff did not include nation of origin discrimination and
related retaliation claims in her SDHR/EEOC complaint, defendants' motion
for summary judgment on plaintiff's nation of origin discrimination and
retaliation claims is GRANTED.
II. Plaintiff's Age Discrimination Claim
A. Plaintiff's failure to plead the correct federal statute in
As a threshold matter, plaintiff's complaint does not include an
allegation of age discrimination under the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C.A. § 623(a)(1). Instead, plaintiff
avers that defendant violated Title VII, 42 U.S.C.A. § 2000(e), New
York State Executive Law §§ 296-97, and New York City Administrative
Code § 8 by discriminating against her on the basis of age. Title
VII, however, does not prohibit employers from discriminating on the
basis of age, see 42 U.S.C.A. § 2000(e-2)(a)(1), rather, it
is the ADEA which makes it unlawful for an employer "to discharge any
individual or otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C.A. § 623(a)(1). Despite
plaintiff's failure to plead a violation of the ADEA in her complaint,
defendants' summary judgment motion analyzes plaintiff's age
discrimination claim under the ADEA, see Def.'s Motion for
Summary Judgment at 6, and plaintiff's reply memorandum follows suit.
Rule 8 of the Federal Rules of Civil Procedure governs the pleading
requirements for complaints, requiring only that a complaint contain a
short and plain statement of jurisdiction, of the claim showing the
complainant is entitled to relief, and a demand for judgment.
Fed.R.Civ.P. 8(a). "No technical forms of pleading or motions are
required," Fed.R.Civ.P. 8(e), nor is there any obligation for a plaintiff
to plead every legal theory under which she seeks to recover. Equally as
important, the Rule directs courts to construe pleadings in a manner "so
as to do substantial justice." Fed.R.Civ.P. 8(f).
The purpose behind the Rule is to provide the defendant fair notice by
disclosing the facts plaintiff relies on for recovery, to promote
disposition of the case on its merits, and discourage disputes over mere
form of statement. See Walter Reade's Theatres, Inc. v. Loew's
Inc., 20 F.R.D. 579 (S.D.N.Y. 1957); McKenzie v. Blidberg
Rothchild Co., 12 F.R.D. 392 (S.D.N.Y. 1952); In re O.P.M.
Leasing Services, Inc., 21 B.R. 986 (S.D.N.Y. 1982); In re
Credit Indus. Corp., 366 F.2d 402 (2d Cir. 1966); Nagler v.
Admiral Corp., 248 F.2d 319 (2d Cir. 1957). Here, plaintiff's
complaint alleges that defendants treated her unfairly on the basis of
age, replaced her with someone younger, and stripped her of employment responsibilities
and withheld information. because of her age. Because these allegations
are sufficient to provide notice to defendants that plaintiff seeks
relief under the ADEA, plaintiff's complaint satisfies Rule 8 with
respect to her ADEA claim. Further, plaintiff included an age
discrimination claim in her SDHR/EEOC complaint, thereby warranting this
court's consideration of the matter on summary judgment.
Legnani, 274 F.3d at 686.
The ADEA is derived from Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. Hogan v. Metromail,
107 F. Supp.2d 459, 464 (S.D.N.Y. 2000). Title VII renders it unlawful for an
employer to: "(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or
national origin; or (2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
The Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621
et seq., extends the same protection to persons over the age of
forty. 29 U.S.C. § 623(a)(1), 631(a). Smith v. AVSC Intern.,
Inc., 148 F. Supp.2d 302, 307 (S.D.N.Y. 2001).
To prevail on an ADEA claim, a plaintiff must prove by a preponderance
of the evidence that her age played a motivating role in or contributed
to the defendant employer's adverse decision or treatment. Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 76 (2d Cir. 2001)
citing Renz v. Grey Advert., Inc., 135 F.3d 217, 222 (2d Cir.
1997). See also Welland v. Citigroup, Inc., 2003 WL 22973574,
at 5 (S.D.N.Y. Dec. 17, 2003) (the critical issue is one of proof of
discriminatory intent on the part of the defendant). Given that most age
discrimination plaintiff's cannot offer "smoking gun" evidence
establishing discriminatory intent, relying instead on circumstantial
evidence, courts analyze ADEA claims under the three-part burden-shifting
analysis established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817 (1973); Holtz, 258 F.3d at 76. Pursuant
to this analysis, plaintiff must first establish a prima facie
case of age discrimination. If she does so, the employer must offer a
legitimate, nondiscriminatory business rationale for its actions. Once
the employer articulates such a reason, the plaintiff has the burden of
proving that her age was the real reason for the adverse action.
Ferrell v. Leake & Watts Services, Inc., 2003 WL 22743076,
at 2 (2nd Cir. Nov. 20, 2003).
In order to establish a prima facie case, a plaintiff must
demonstrate the following: 1) she was within the protected age group; 2)
she was qualified for the position; 3) she was subject to an adverse
employment action; and 4) the adverse action occurred under circumstances
giving rise to an inference of discrimination. Id. citing
Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal
quotation marks omitted). The burden on the plaintiff at this stage is
"minimal." Rose v. NYP Holdings. Inc., 257 F.3d 164, 168 (2d
Cir. 2001). Here, the defendants do not contest, and the court assumes, that
plaintiff has shown the first two prongs of a prima facie case. As to the
third prong, plaintiff's reply brief appears to offer several grounds for
finding an adverse employment action. First, plaintiff charges that
defendants constructively discharged her. Pl.'s Reply Brief at 9.
Although constructive discharge constitutes adverse employment action,
Stetson v. NYNEX Service Co., 995 F.2d 360 (2d Cir. 1993),
"[c]onstructive discharge of an employee occurs when an employer, rather
than directly discharging an individual, intentionally creates an
intolerable work atmosphere that forces an employee to quit
involuntarily." Chertkova v. Connecticut Gen. Life Ins., 92
F.3d at 87. Here, defendants terminated plaintiff's employment via letter
on May 3, 2000. See Pl.'s Complaint at ¶ 40. Because
plaintiff did not quit involuntarily, she cannot locate an adverse
employment action in a constructive discharge.
Second, plaintiff seeks to establish adverse action by alleging that
Levy transferred plaintiff's employment responsibilities to Louis, Pl.'s
Reply Brief at 9, but the only responsibility of this nature that
plaintiff has pointed to is scheduling. An adverse employment action is a
"materially adverse change" in the terms and conditions of employment
that is "more disruptive than a mere inconvenience or an alteration of
job responsibilities." Galabva v. New York City Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000) (citations omitted). See also
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (a
"minor, ministerial stumbling block" does not constitute an adverse
employment action unless it has a "sufficiently deleterious" effect). "A
materially adverse change might be indicated by a termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a
particular situation." Id. (citation omitted). Although the
court is mindful that plaintiff's burden at this stage is de minimis, the
loss of scheduling powers does not constitute "significantly diminished
material responsibilities" and is not, therefore, an adverse employment
Third, plaintiff avers that defendants removed books and policy manuals
from her office while she was out on a two-day leave in June, 1999. Even
if the court assumes, as it must, that these items were actually taken
from her office, although inconvenient and possibly disruptive, such
action presents a minor, ministerial stumbling block without a
sufficiently deleterious effect. Wanamaker, 108 F.3d at 466.
When the court further considers that the policy books and manuals
actually belonged to the Pathology Department, Punsal Dep. at 86, it is
especially confident that the act in question is not an "adverse
Lastly, plaintiff alleges that two memoranda authored by Levy on June
15, 1999 constitute an "adverse employment action. The first memoranda
charges plaintiff with failing to a) tell Levy that a newly hired
technologist did not report to work, and b) discontinue the practice of
lunch overtime. Def.'s Ex. H. The second memorandum charges plaintiff
with delaying testing of a specimen for four days. Id. The
memoranda are addressed to plaintiff Punsal, with the Director of
Pathology, Director of Human Resources, and Laboratory Manager
carbon-copied on the correspondence. Id. Adverse employment
actions are "injurious to current employment or the ability to secure
future employment," Wanamaker, 108 F.3d at 466, including
negative evaluation letters, see Morris v. Lindau, 196 F.3d 102,
110 (2d Cir. 1999). Construing the facts in plaintiff's favor, the
June 15th letters likely became part of plaintiff's employment file.
Because they could detrimentally her prospects for future employment, the letters
constitute "adverse employment action." As to these letters, plaintiff
makes out the third element of the prima facie case.
To satisfy the fourth prong of the prima facie case, plaintiff must
demonstrate that the adverse action occurred under circumstances giving
rise to an inference of discrimination. Plaintiff alleges that unlike
plaintiff, "defendant Levy actually delayed testing and was not
disciplined." Punsal Decl. at ¶ 12. Although Louis was 43 years of
age at the time and thus in the protected class covered by the ADEA,
see 29 U.S.C. § 631 (a) (ADEA's protective class includes
individuals over 40 years of age), the fact that she was younger than
plaintiff is sufficient. See Tarshis v. Riese Org.,
211 F.3d 30, 38 (2d Cir. 2000) (inference of discrimination shown because
plaintiff was over 60 years of age and his replacement was 59 years of
age). Thus, assuming plaintiff's allegation that Levy also delayed
testing is true, plaintiff has raised an inference of discrimination.
Having made out a prima facie case, the burden shifts to defendants to
offer a legitimate, nondiscriminatory business rationale for adverse
employment action. See McDonnell Douglas Corp., 411 U.S. 792.
Defendants do not have to prove their nondiscriminatory reasons
for the employment action, but merely to provide, articulate, or
present a nondiscriminatory basis. Jetter v. Knothe Corp.,
324 F.3d 73, 75 (2d Cir. 2003). This burden is "merely one of production,
not persuasion; it can involve no credibility assessment." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097
(2000). Defendants state that it was laboratory policy to test every
specimen upon the day of receipt because a lab's failure on a proficiency
test has egregious circumstances, including the possible loss of
accreditation. Def.'s Motion for Summary Judgment at 12-13. While federal
regulations require testing anywhere between five and ten days of receipt
of a specimen, according to the lab's internal policy, technicians were
required to test each specimen the same day as receipt. Levy Dep. at
35-39. Although plaintiff's act may not have violated federal laws
governing the time frame for testing or caused the hospital to receive
any kind of warning, plaintiff's delay constituted a violation of
laboratory policy. Id. With respect to plaintiff's failure to
tell Levy that an employee did not report for work, defendants point out
that failure to inform Levy about important personnel issues jeopardizes
laboratory operation. Pl.'s Ex. E. Regarding her failure to discontinue
overtime practices, defendants explain that Levy had told plaintiff to
discontinue the practice four days before, so plaintiff's continued abuse
of overtime violated Levy's directive. For all three violations Levy
charges plaintiff with in the June 15, 1999 memoranda, defendants have
articulated nondiscriminatory bases for their actions.
At this point, the presumption of discrimination raised by the prima
facie case drops out, and defendants will be entitled to summary judgment
unless the plaintiff can demonstrate, by a preponderance of the evidence,
that the defendants' presumptively valid explanation was merely a pretext
for discrimination. Pasha v. William M. Mercer Consulting,
Inc., 2004 WL 188077, at 9 (S.D.N.Y. Feb. 2, 2004) citing
Griffin v. Ambika Corp., 103 F. Supp.2d 297, 307 (S.D.N.Y. 2000);
Mario v. P&C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir.
2002). "[T]o defeat summary judgment . . . the plaintiff's admissible
evidence must show circumstances that would be sufficient to permit a
rational finder of fact to infer that the defendant's employment decision
was more likely than not based in whole or in part on discrimination."
Terry, 336 F.3d at 138 citing Stern v. Trustees of
Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir.
1997). To meet this burden, "the plaintiff is not required to show that the
employer's proffered reasons were false or played no role in the
employment decision, but only that they were not the only reasons and
that the prohibited factor was at least one of the `motivating' factors."
Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995):
see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097;
Bickerstaff v. Vassar College, 196 F.3d 435, 447 (2d Cir.
1999), cert. denied, 79 530 U.S. 1242, 120 S.Ct. 2688 (2000);
Fields v. New York State Office of Mental Retardation and
Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997). In
some cases, a plaintiff's prima facie case combined with sufficient
evidence to find the employer's reason is false may be sufficient.
See Cronin, 46 F.3d at 203; Reeves, 530 U.S. at 148,
120 S.Ct. at 2109. In other cases, however, such proof may not be enough
to survive summary judgment. See McGuinness v. Lincoln Hall,
263 F.3d 49, 55 (2d Cir. 2001) citing James v. New York Racing
Ass'n., 233 F.3d 149, 156 (2d Cir. 2000). The court's responsibility
is to analyze the particular evidence to determine whether it reasonably
supports an inference of the facts plaintiff must prove . . ."
Cordoba v. Beau Dietl & Associates, 2003 WL 22902266, at 7
(S.D.N.Y. Dec. 8, 2003), citing James, 233 F.3d at 157.
Plaintiff's age discrimination claim rests primarily upon her
allegation claim that Louis told plaintiff that Levy likes Louis because
she is "young and energetic." Punsal Dep. at 65 (Louis "bragging around"
that Levy likes her because she is "young and energetic); Id.
at 67 (discrimination plaintiff senses from Levy based on the fact that
Louis "bragging around" that she can't do anything wrong in Levy's eyes
because she is "young and energetic"); Id. at 69 (when asked
what Levy did to make Punsal think Levy was discriminating against her,
Punsal states that Levy favored Louis and Louis was "bragging around");
Id. at 81 (plaintiff told Veronica Henry, the laboratory
manager, about "the age discrimination that Ms. Louis is spreading around
which I think was from Dr. Levy herself because she would not have any
reason of saying that"); Id. at 140 (Levy doesn't want to talk
to her and Louis just keeps telling Plaintiff that Louis likes her
because she is "young and energetic"). On the one hand, Punsal stated
that her Louis, her co-worker, is the only one who made a comment to her
about age, id. at 140-41 (the "young and energetic" comment is
the only one she can think of regarding her age made by the defendants),
but on the other hand, Punsal also testified that Levy once said that all
of the supervisors at the lab were getting old, id. at 131.
Unlike other cases in which courts in the Second Circuit have held that
uncorroborated statements were sufficient to defeat summary judgment,
here, the uncorroborated remarks do not present a situation in which
plaintiff's supervisor made repeated statements clearly indicative of
age-based preferences or discriminatory motive. See Holtz,
258 F.3d 62, 77-78 (2d Cir. 2001) (although evidence of discriminatory intent
consisted of uncorroborated statements, defendant employer's motion for
summary judgment denied where supervisor i) went on at length that he was
training the new employee because she was young and hence, a good
investment; ii) on a separate occasion he stated that he enjoyed training
young women; iii) when plaintiff asked when her supervisor would train
her, he responded that he liked to train young women instead); Instead,
"these remarks are too isolated and ambiguous to support a finding of age
discrimination." Pasha v. William M. Mercer Consulting, WL
188077, at 5 (S.D.N.Y. Feb. 2, 2004) (no finding of age discrimination
where supervisors talked about recruiting young people from the actuarial
side of the business to become consultants and one supervisor said that
he and plaintiff should be thinking of retirement at their age)
citing Douglas v. Dist. Council 37 Municipal Employees' Educ. Fund
Trust, 207 F. Supp.2d 282, 291 (S.D.N.Y. 2002). See also Molin
v. Shapiro, 2003 WL 22056217, at 1 (2d Cir. Sept. 4, 2003)
(supervisor's remark that employers who were younger than plaintiff were
the future of the company was subject to various interpretations, none of
which were sufficiently indicative of a discriminatory intent). Like
other cases in which courts in the Second Circuit have found that summary
judgment in favor of the employer was proper, the statements plaintiff
relies upon are "no more than . . . passing flippanc[ies]" and "too
immaterial to withstand a properly-supported motion for summary
judgment"). Id. at 6, citing Bern v. United Mercanfile
Agencies, 942 F. Supp. 217, 220 (S.D.N.Y. 1996). See also Hatter
v. Fulton, 1997 WL 411623, at 5 (S.D.N.Y. Jul. 21, 1997) (employer
entitled to summary judgment because supervisor's comment that company
"needs young people" was merely a "stray utterance that is insufficient
to give rise to an inference of discrimination"); Buompane v.
Citibank. N.A., 2002 WL 603036, at 12-13 (S.D.N.Y. Apr.18, 2002)
(employer entitled to summary judgment despite decision maker's comments
that she wanted an "energetic young buck," and sought a "young,
energetic, fresh approach").
Additionally, plaintiff attempts to show that her age was the real
reason for the adverse action by claiming that Levy preferred Louis, Levy
and Louis made changes without telling her, Levy asked Louis to tell the
other technologists what to do even though plaintiff was the more senior
supervisor, Levy and Louis took Department books and manuals from her
office while she was on leave, and Levy gave plaintiff's work to Louis.
See Punsal Dep. at 84-86, 143. However disagreeable, these
alleged wrongdoings are insufficient to satisfy plaintiff's burden
because plaintiff has not provided any evidence linking these acts to
discriminatory animus based on age. See Lizardo v. Denny's,
Inc., 270 F.3d 94, 104 (2d Cir. 2001) (plaintiffs in a race
discrimination case presented insufficient evidence to withstand summary
judgment where they did "little more than cite to their mistreatment and
ask the court to conclude that it must have been related to [race
discrimination]"); Sklar v. New York Life Ins. Co., 2002 WL
562300 (2d Cir. Apr. 16, 2002) (applying Lizardo to age
discrimination claim). While plaintiff alleges that other employees filed
discrimination complaints as proof that defendants discriminated against
her, Punsal Decl. at ¶ 20, not only has plaintiff failed to provide
any evidence to this effect or even specify the nature of the
discrimination charges, there is insufficient evidence in the record
pertaining to discriminatory treatment directed towards plaintiff to
warrant finding that other claims of discrimination rebut defendants'
neutral reasons for the adverse employment action. See Bailey v.
Synthes, 295 F. Supp.2d 344, 356-57 (S.D.N.Y. 2003) ("In the absence
of specific, admissible, evidence of facts bearing in plaintiff's
experience with [plaintiff's employer], other employees' allegations that
their adverse employment experiences were the product of discrimination
are insufficient to rebut Defendants' proffered reasons for [the adverse
employment action]") citing Scaramuzzo v. Glenmore Distilleries
Co., 501 F. Supp. 727, 733 (N.D.Ill. 1980) (although evidence of
discriminatory acts by employer towards other employees is relevant under
some circumstances, "[t]he fact that persons other than the plaintiff
filed age discrimination charges against [the defendant employer] . . .
is of minimum probative value").
As a matter of law, there is insufficient evidence before the court
from which a reasonable jury could conclude that more probably than not,
plaintiff Punsal was the victim of age discrimination. See
James, 233 F.3d at 154. As such, defendants' motion for summary judgment on plaintiff's ADEA claim is GRANTED. Because
age discrimination claims brought under the state and municipal law are
subject to the same analysis as claims brought under the ADEA,
Abdu-Brisson, 239 F.3d at 466, summary judgment is also
GRANTED to defendants on plaintiff's claims under N.Y. Exec.
Laws §§ 296-298 and N.Y. City Admin. Code § 8.
III. plaintiff's Retaliation Claim
Plaintiff's complaint does not specifically allege a claim of
retaliation or request relief on this basis. The factual portion of her
complaint states that "Defendants discriminated against Plaintiff on the
basis of her age . . . and retaliated against plaintiff for making the
charge of discrimination dated July 16, 1999," Pl.'s Complaint, at ¶
41. Defendants were on notice of her retaliation claim because they
address retaliation in their motion for summary judgment. Thus, the
retaliation claim set forth in plaintiff's complaint satisfies
Fed.R.Civ.P. 8. Further, while plaintiff did not charge defendants with
retaliation in her SDHR/EEOC complaint, plaintiff's retaliation claim is
reasonably related to the age discrimination she alleged in the
administrative complaint. See Butts 990 F.2d at 1402
(retaliation claims are reasonably related to EEOC complaints charging
discrimination). For these reasons, plaintiff's retaliation claim is
properly before the court on summary judgment.
The same standards and burdens apply to retaliation claims in violation
of the ADEA as apply to retaliation in violation of Title VII. See
Terry, 336 F.3d at 141, citing Schnabel v. Abramson,
232 F.3d 83, 87 (2d Cir. 2000). Title VII forbids an employer from
discriminating against an employee "because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
A violation occurs when "a retaliatory motive plays a part in
adverse employment actions toward an employee, whether or not it was the
sole cause." Id., citing Cosgrove v. Sears, Roebuck &
Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
The McDonnell Douglas burden shifting analysis applies to
claims of retaliation in violation of the ADEA. Id. First,
plaintiff must make out a prima facie case of retaliation by showing (1)
the plaintiff was engaged in an activity protected under the ADEA; (2)
the plaintiff was subject to an adverse employment action; and (3) a
causal connection between the protected activity and the adverse
employment action. Id., citing Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 769 (2d Cir. 1998). The filing of an
administrative complaint with the SDHR and EEOC is clearly protected
activity and plaintiff's termination constitutes an adverse employment
action. Thus, plaintiff satisfies the first two prongs of the prima facie
case of retaliation. As to the third prong, however, there is no evidence
in the record from which the court can infer that plaintiff's
administrative complaint played any role whatsoever in her termination.
Even if plaintiff could satisfy the third prong of the prima facie
case, defendants have offered a nondiscriminatory reason for terminating
plaintiff. Defendants sent plaintiff a letter nearly eleven
months after the last day plaintiff worked in the lab, stating that
they could no longer hold her position open but encouraging her to
contact Human Resources in the event her medical condition changed and
she could return to work. See Def.'s Ex. E. According to
defendants, "it is Mt. Sinai's general policy that when an employee takes
a leave of absence, Mt. Sinai will only hold the employee's position for
six months." Innes Decl. at ¶ 18 (emphasis added). Further,
defendants held plaintiff's position open until October of 2000, when it
learned that its insurance carrier had reaffirmed its decision to deny
plaintiff long-term disability benefits. Id. at ¶ 17. In
light of defendants' general policy to terminate a similarly situated
employee after six months, coupled with the fact that defendants waited
to fill plaintiff's position until after plaintiff had been denied
long-term disability benefits and she still did not return to work,
defendants have satisfied their burden.
Plaintiff fails to refute defendants' nondiscriminatory rationale by
offering evidence from which a reasonable factfinder could conclude that
retaliatory animus played a role in plaintiff's termination. Plaintiff
does not offer any additional evidence to substantiate her claim of
retaliation other than the allegations she relied on to substantiate her
claim of age discrimination. These allegations, even if taken as true,
are equally inadequate to warrant a finding of retaliatory motive. In
addition, defendants aver that the termination letter and the attendant
decision to terminate rested exclusively in the hands of Human Resources,
and although she had the power to do so, Levy did not recommend
plaintiff's termination. See Innes Decl. at ¶ 21-22. While
plaintiff identifies Levy as the primary source of the discrimination she
suffered, she has offered no evidence to show that Levy played a role in
her discharge as a means of retaliating against her. See
Bickerstaff, 196 F.3d 435 (the impermissible bias of a single
individual at any stage of the decision-making process may taint the
ultimate decision as long as the individual is shown to have played a
meaningful role in that decision). Defendants have not offered
inconsistent and varying explanations for its decision to terminate
plaintiff. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 170
(2d Cir. 2001) (a jury issue on the question of pretext may be created
when an employer offers inconsistent and varying explanations for
terminating an employee). Further, the employee hired to replace
plaintiff was 51 years of age at the time of hire, and plaintiff was 58
years of age at the time defendants terminated her employment. "In the
age-discrimination context, [an inference of discrimination] cannot be
drawn from the replacement of one worker with another insignificantly
younger." O'Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 313, 116 S.Ct. 1307 (1996). Finally, because ten months passed
between the time when plaintiff filed the SDHR/EEOC complaint and
plaintiff's termination, this is not a case in which temporal proximity
demonstrates a causal nexus between the charge of discrimination and a
plaintiff's subsequent termination. Manoharan v. Columbia
Univ., 842 F.2d 590, 593 (2d Cir. 1988). See Quinn, 159
F.3d at 769 (plaintiff showed a causal connection between the protected
activity and her termination when her discharge came ten days after she
filed an administrative complaint and two months after she filed an
internal complaint); Reed v. A.W. Lawrence & Co., Inc.,
95 F.3d 1170, 1178 (2d Cir. 1996) (retaliation inferred by evidence showing
the time between plaintiff's initial complaint and her discharge was a
mere twelve days). Even if plaintiff could make a showing of temporal
proximity, in the absence of other evidence showing a causal relationship
between the SDHR/EEOC complaint and her termination, such a showing could
not satisfy her burden. Hollander v. American Cyanamid Co.,
895 F.2d 80, 85-86 (2d Cir. 1990) (no causal connection where only evidence
was three month lapse between complaint and allegedly retaliatory act).
Plaintiff cannot establish a prima facie of retaliation. Even if she
could, plaintiff fails to offer evidence from which a reasonable jury
could conclude that retaliatory animus played a role in plaintiff's
termination. Defendants' motion for summary judgment on plaintiff's
retaliation claim is GRANTED. CONCLUSION
Defendants' motion for summary judgment is GRANTED on
plaintiff's Title VII nation of origin discrimination claim, age
discrimination claims arising under the ADEA, New York Exec. Law §§
296-97, and N.Y. City Admin. Code § 8, retaliation claim.