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 ...