United States District Court, S.D. New York
April 9, 2004.
ORLANDO WALTERS, Plaintiff, -against- BRONX-LEBANON HOSPITAL CENTER, SHELDON ORTSMAN, ROBERT UNDERWOOD, Defendants
The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge
OPINION AND ORDER
Plaintiff Orlando Walters brought this action against his former
employer (the Bronx-Lebanon Hospital Center, referred to as
"Bronx-Lebanon" or "the Hospital") and two executives at Bronx-Lebanon,
namely Sheldon Ortsman and Robert Underwood. Plaintiff also brought this
action against Ray Cottrell and Scott Lemperle, who were employed by a
company called Aramark but worked as consultants and supervised
plaintiff. In January 2002, Cottrell and Lemperle reached a settlement
with plaintiff and are no longer parties to this lawsuit.
On November 26, 2003, the remaining defendants served (1) a Notice of
Motion for Summary Judgment with an annexed Defendants' Local Rule 56.1
Statement ("Def. 56.1 Stat."), (2) a Memorandum of Law ("Def. Mem."), and
(3) two volumes of Exhibits AA through TT ("Def. Exh. ___").
On January 6, 2004, plaintiff served a Memorandum of Law ("Pl. Mem.")
and a thick volume which contains (a) Plaintiff's Responses to
Defendants' Rule 56.1 Statement ("Pl. 56.1 Resp."), (b) the 1/5/04
affidavit of Orlando Walters ("Walters Aff."), (c) the the 1/5/04
affirmation of his attorney Etta Ibok ("Ibok Aff."), (d) Plaintiff's
Stipulations and Objections to Defense Exhibits, (e) the 12/17/03
affidavit of James (Rick) Bay, and (f) Exhibits 1 through 25 ("Pl. Exh.
The Walters affidavit ends as follows:
138. I am withdrawing my claims for race
discrimination and defamation and [I am] going
forward on my retaliation claims only. Accordingly, I hereby dismiss, with prejudice, plaintiff's
On January 26, 2004, defendants served a Reply Memorandum of Law ("Def.
Reply") and annexed to it declarations of four witnesses.
Plaintiff has requested oral argument on the defendants' motion. I find
that oral argument is unnecessary. For the reasons set forth below, I
deny defendants' motion for summary judgment as to the retaliation
FACTUAL AND PROCEDURAL BACKGROUND
At Bronx-Lebanon, Sheldon Ortsman was the Vice President of
Administration and Human Resources (Def. Exh. M. pp. 17-18); Robert
Underwood was the Assistant Vice President of Facilities Management (Def.
56.1 Stat. ¶ 4). On August 1, 1994, Underwood hired plaintiff to work
as a Budget Assistant in the Facilities Management Department. (Def. 56.1
Stat. ¶¶ 1, 4; Pl. 56.1 Resp. ¶¶ 1, 4.) In February 1996, Underwood
promoted plaintiff to the position of Budget Analyst. (Def. 56.1 Stat.
¶ 5; Pl. 56.1 Resp. ¶ 5.) According to plaintiff, Underwood's
benign attitude toward him changed dramatically after July 21, 1998, when
plaintiff corroborated complaints that Underwood discriminated against
On July 21, 1998, plaintiff met with Lourdes Martinez, an attorney with
a law firm retained by the Hospital. Plaintiff says that Ms. Martinez
showed him an anonymous letter (Pl. Exh. 2) addressed to Miguel A.
Fuentes, the President of the Hospital. Plaintiff says:
. . . [Ms. Martinez] explained to me that she
was asked by the hospital board of trustees as an
independent investigator, as an attorney, to
investigate these allegations that were made in
this letter[.] I told her I did not want to
cooperate because I was fearful of reprisals, not
only towards myself, but at the time my girlfriend
and my mother who w[ere] employed at the hospital
at that time. She told me that both Sheldon
Ortsman and Robert Underwood were warned that if
there were any reprisals to anyone who cooperated
with this investigation, that the[re] would be
stiff penalties and major reprimands.
To them; she was telling me that by speaking with
her, I would be protected. (Def. Exh. A, pp. 85-87.)
The anonymous letter, dated June 30, 1998, contained serious
allegations against Underwood, including allegations that Underwood used
"recent racial slurs" toward minority employees in his department. (Pl.
Exh. 2.) Plaintiff, after the lawyer gave him assurances against
retaliation, corroborated the letter's allegations, including Underwood's
use of racial slurs. (Def. Exh. A, pp. 88-89.) In addition, plaintiff and
Ms. Martinez discussed Ortsman and his "involvement with vendors" and his
"awarding of contracts." (Id., p. 98.)
Defendants do not deny plaintiff's version of the July 1998 meeting.
Instead, Ms. Martinez "beats around the bush" and says:
2. I have reviewed the affidavit of the
Plaintiff in opposition to the Hospital's motion
for summary judgment.
3. Contrary to the Plaintiff's assertion, in or
about July 1998, my firm [Garfunkel, Wild &
Travis, P.C.] was not retained as labor counsel by
the Hospital for purposes of conducting a Title
VII Civil Rights Act investigation.
4. In or about July 1998, the Hospital asked my
firm to conduct compliance activities unrelated to
Title VII issues.
(Def. Reply Exh. A.) The scope of her law firm's retainer is of
minimal relevance. She does not contradict plaintiff's allegations that
(a) she showed him the letter mentioning Underwood's "recent racial
slurs," (b) she gave him assurances against retaliation, and (c) he
corroborated that Underwood had discriminated against employees on the
basis of race. Nor does she deny that her law firm informed one or more
Hospital executives, directly or indirectly, that plaintiff had
corroborated allegations implicating Underwood in racial discrimination
and implicating Ortsman in improper awarding of contracts.
On August 7, 1998, Yvette Rodriguez, the office supervisor for the
Facilities Management Department, sent Underwood a written complaint
. . . [A]round 12:15 p.m., when Mr. Walters
arrived I asked him to cover the office since
there was no one else available and [I] had to go
to the bank. When I returned at approximately 1:10 p.m., I
went to the bathroom to wash my hands. While I
was in the bathroom, my attention was drawn to
some pieces of paper (obviously not toilet paper)
floating in the toilet. I fished out the pieces of
paper from the bowl, . . . I then noticed that
one piece of paper had Mr. Carlos Javier's name on
it. The day before Mr. Underwood asked me for a
copy of a check request for Carlos Javier, and I
could not locate it. . . .
At approximately 2:15 p.m., Mr. Underwood arrived
from his meeting. I went to his office and I
showed him the pieces of paper and I stated that
the only one in the office at the time of me
leaving to go to the bank was Mr. Orlando Walters.
(Def. Exh. K.) Plaintiff denies that he attempted to flush away the
That same day, Underwood reprimanded plaintiff for attempting to flush
away the check requisition. (Def. 56.1 Stat. ¶ 10; Def. Exh. H, pp.
198-216.) Plaintiff claims that Underwood said that, if he did not have
plaintiff's loyalty, "then I must leave or he would get rid of me."
(Walters 1/5/04 Aff. ¶ 31.) According to plaintiff, Underwood then
conveyed a worry that plaintiff had been cooperating in an investigation
aimed at Underwood:
d. Defendant Underwood also told me that if
I spoke to anyone asking questions about
him, he would "make life very difficult" for
(Ibid, emphasis added.)
Plaintiff was upset about the retaliatory nature of this Friday
afternoon meeting. On Monday morning, August 10, 1998, plaintiff went to
Ms. Martinez's law office and conveyed his anxiety to her and another
lawyer at her firm, David Steckler. Mr. Steckler told plaintiff that the
President of the Hospital, Miguel Fuentes, was already aware that
plaintiff had come to their law office that morning. (Walters 1/5/04 Aff.
1 35.) A bit later on August 10, as soon as plaintiff arrived for work,
Ortsman summoned him to a meeting. Ortsman told him that President
Fuentes had asked Ortsman to speak to plaintiff about the statements
plaintiff had made to Ms. Martinez and Mr. Steckler. The crucial
allegation is that Ortsman required plaintiff to reveal what he
told the investigators about Underwood. Plaintiff did so, and
also informed Ortsman that Underwood had threatened him. (Walters 1/5/04 Aff. ¶¶ 34-38.)
On September 3, 1998, Underwood met with plaintiff and Yvette
Rodriguez and Elaine Bryant to discuss "staff resource allocation
relative to the Fulton Division." (Def. Exh. O.) Underwood stated that,
effective September 9, plaintiff would relocate to the Fulton Division to
provide management coverage for that Division. Underwood gave three
reasons: (1) Juan Harley, the Fulton Division's Assistant Director, who
had been on sick leave, had relocated to the Concourse Division, (2)
Peter Mendonez, a building manager at the Fulton Division, had resigned,
and (3) George Rodriguez, the Associate Director of the Concourse
Division Engineering office, could not fill in because he was on
vacation. (Def. 56.1 Stat. 112; Def. Exh. A, pp. 158-66 and Exh. 0;
Walters 1/5/04 Aff. ¶¶ 20-22.) Plaintiff became the sole person "doing
the building managerial position." (Def. Exh. A, p. 178.) Plaintiff's
title and salary remained the same. (Def. 56.1 Stat. 12; Pl. 56.1 Stat.
Resp. ¶ 12(n).) He "took on the responsibilities of a building
manager, director of engineering." On the negative side, he was no longer
permitted to (a) attend the weekly Facilities Management Managerial
meetings or (b) participate in the Joint Commission on Accreditation of
Healthcare Organizations ("JCAHO") survey. (Def. Exh. A, pp. 159-60; Pl.
56.1 Stat. Resp. ¶ 12.)
On September 8, 1998, plaintiff filed a complaint with the U.S. Equal
Employment Opportunity Commission ("EEOC"), alleging retaliation stemming
from the July 21, 1998 meeting with Ms. Martinez, the August 7, 1998
meeting with Underwood, and the transfer to the Fulton Division. (Def.
Exh. 00; Pl. 56.1 Stat. Resp. ¶ 11.)
Defendants allege that, in the fall of 1998, plaintiff exhibited three
performance problems: (1) his "failure to set-up and coordinate his new
office at the Fulton Division;" (2) complaints from architects Peter
Rodrigues and Vilas Parab of the Facilities Management Department, that
he was "failing to carry out his job functions," and (3) his "excessive
absences, i.e. plaintiff was asked to submit documentation for three sick
days taken in late September, 1998." (Def. 56.1 Stat. 113; Def. Exh. P;
Def. Exh. Q; Def. Exh. H, pp. 217-224, 241, 248-253; Def. Exhibit A, pp.
167-70, 179). Plaintiff denies the defendants' allegations. He also
claims that Underwood failed to bring these alleged performance problems
to his attention, and thus violated Bronx-Lebanon's policy on performance
evaluation. (Pl. 56.1 Stat. Resp. ¶ 13.)
From January 13 to April 26, 1999, plaintiff was granted an extended medical leave due to depression and anxiety. (Def. 56.1
Stat. ¶ 14; Pl. 56.1 Stat. Resp. ¶ 14 and its Exh. 6.)
In March 1999, Bronx-Lebanon contracted out the supervisory duties of
some of its departments to an outside private entity, Aramark Healthcare
Support Services, Inc. ("Aramark"). (Def. 56.1 Stat. ¶ 15.)
After April 26, 1999, when plaintiff returned from sick leave,
Underwood was no longer his direct supervisor. Reporting to Underwood
was Aramark's Ray Cottrell; reporting to Cottrell were two other Aramark
employees who now served as plaintiff's supervisor first Regis
Legoff and then (starting in October 1999) Scott Lemperle. (Def. 56.1
Stat. ¶ 18; Pl. 56.1 Stat. Resp. ¶ 18; Pl. Exh. 23, p. 130.)
Plaintiff was the only member of the administrative staff of the
Facilities Management Department who was required to report to an
Aramark employee. Cottrell and Lemperle were put in the Concourse
Building, and plaintiff was directed to relocate to the Concourse
Building. (Pl. 56.1 Stat. Resp. ¶¶ 15 and 16.)
From May 1999 through August 1999, plaintiff had various complaints
about his new office, including complaints that his office was not
physically comfortable, well-ventilated, naturally lit, or big enough to
accommodate plaintiff's tall frame. (Def. 56.1 Stat. ¶ 17; Pl. 56.1
Stat. Resp. ¶ 16(J) and (K), and ¶ 17; Walters 1/5/04 Aff. ¶¶
80-89; Def. Exhs. R at ¶¶ 7-8 and U.) The defendants addressed and
attempted to resolve all of plaintiff's complaints within a six-month
period, including the hiring of an outside consultant to test the air
quality in his office, and moving other managers around so that he could
have a bigger office. (Def. 56.1 Stat. ¶ 17; Pl. 56.1 Stat. Resp.
¶ 17; Walters 1/5/04 Aff. ¶¶ 83, 85; Def. Exhs. R at ¶¶ 7-8 and
U.) During this time frame, his old office in the adjacent Milstein
Building remained vacant. (Pl. 56.1 Stat. Resp. ¶ 17.)
On August 6, 1999, the EEOC issued a Right to Sue letter with respect
to plaintiff's September 10, 1998 complaint. The EEOC said it was "unable
to conclude that the information obtained establishes violations of the
statutes." The EEOC further said that plaintiff could pursue his federal
claim in either a state or a federal court within 90 days of receipt of
the letter. (Def. Exh. 00.) He failed to do so. On the other hand, he
promptly made the same complaint to the New York State Division of Human
On September 3, 1999, plaintiff went to the SDHR and filed a claim
against the Hospital. He alleged that he was disabled by depression and anxiety, and he accused the defendants of
discrimination and retaliation. He alleged that Underwood transferred him
and demoted him to retaliate against plaintiff's participation in the
1998 investigation as a witness. (Def. Exh. PP.)
James (Rick) Bay is now an important witness for plaintiff. Bay was an
Aramark employee who worked at the Hospital from the summer of 1999 to
February 2000. Shortly after Bay started working for Aramark, he and
Lemperle and Cottrell met with Underwood; Bay says:
9. During the discussion that ensued, I recall
distinctly that Robert Underwood kept emphasizing
that he wanted Ray Cottrell and Scott Lemperle to
go after Orlando Walters and to fire him.
10. I also recall distinctly that Robert
Underwood told Ray Cottrell and Scott Lemperle
that Orlando had caused him a lot of problems and
had some kind of a pending action against him;
therefore, he (Underwood) could not personally
"touch" Orlando Walters.
(Bay 12/17/03 Aff.)
On October 27, 1999, according to Lemperle, he met with plaintiff to
"establish [plaintiff's] break schedule and appropriate professional
attire." (Def. 56.1 Stat. ¶ 19; Pl. 56.1 Stat. Resp. ¶ 19; Def.
On October 28, 1999, plaintiff told Ortsman about the October 27
conversation with Lemperle "because I felt that defendant Underwood was
subjecting me to a different standard than other employees." He told
Ortsman that he "believed that defendant Underwood was continuing to
harass [him] and to engage in retaliatory conduct" by (1) requiring him
to designate a specific time for lunch, (2) barring him from utilizing
the amenities in front of the Milstein Building, and (3) requiring him to
wear a tie while sitting at his desk. (Walters 1/5/04 Aff. ¶¶ 96.)
On October 29, Lemperle and plaintiff met again because Ortsman had
asked Lemperle to clarify the statements he had made during the October
27 meeting. (Pl. 56.1 Stat. Resp. ¶ 96.) Defendants allege that
plaintiff yelled at Lemperle, used profanity, and called Lemperle a liar.
(Def. 56.1 Stat. ¶ 19; Def. Exh. W.) On November 3, 1999, plaintiff was suspended for five
days for this behavior, and he was advised that further insubordination
would result in his termination. (Ibid.) Plaintiff denies using
profanities or calling Lemperle a liar. (Walters 1/5/04 Aff. ¶¶
On December 1, 1999, plaintiff grieved his suspension. After an
investigation, the suspension was upheld. (Def. 56.1 Stat. ¶¶ 20-21;
Pl. 56.1 Stat. Resp. ¶¶ 20-21 and its Exh. 10; Def. Exhs. X and Y;
Walters 1/5/04 Aff. ¶¶ 97-98.) On that date, plaintiff also filed an
internal EEO complaint, alleging that Ortsman, Underwood, Lemperle and
Cottrell discriminated against him because of his race, color and
handicap. However, this complaint gave specifics only about Underwood
and Lemperle. (Def. Exh. QQ.)
On January 10, 2000, Lemperle reviewed the 1999 fourth quarter
attendance records for the three hospital managers who reported to him.
He found two discrepancies in plaintiff's records. The records showed
that plaintiff had called in sick on November 19 and 22, 1999, but had
listed himself as present on his attendance sheets. (Def. 56.1 Stat.
¶ 23; Pl. 56.1 Stat. Resp. ¶ 23; Def. Exh. S, ¶¶ 11-17.)
Lemperle did not find any discrepancies in the time records of the other
managers in plaintiff's Department. Ray Cottrell confirmed Lemperle's
findings. (Def. 56.1 Stat. ¶ 24; Pl. 56.1 Stat. Resp. ¶ 24.) On
January 10 and 11, 2000, Cottrell and Lemperle met with plaintiff.
Plaintiff admitted that he signed the two attendance sheets at issue, but
stated that he could not remember whether he was at work on the two days
at issue. (Pl. 56.1 Stat. Resp. ¶ 25.) Lemperle advised plaintiff
that he would investigate the matter. (Def. 56.1 Stat. ¶ 27; Pl. 56.1
Stat. Resp. ¶ 27; Def. Exh. S, ¶¶ 18-22.)
On January 12, 2000, Lemperle recommended that plaintiff be terminated
on the grounds that he falsified his attendance records and stole time
from the Hospital. The Hospital's Director of Human Resources accepted
Lemperle's recommendation and terminated plaintiff on January 12, 2000.
(Def. 56.1 Stat. ¶ 27; Pl. 56.1 Stat. Resp. ¶ 27; Def. Exh. S,
On January 13, 2000, plaintiff filed a grievance regarding his
termination. (Def. Exh. EE.) Defendants argue that plaintiff gave
conflicting accounts as to his whereabouts on November 19 and 22, 1999.
(Def. 56.1 Stat. ¶ 28.) During the Step II grievance hearing,
plaintiff testified that on November 18 he prematurely submitted his time
sheet for November 19, but later left a message for Lemperle that he
would be out sick. He says that Lemperle should have simply told the timekeeper to change
the time sheet. (Pl. 56.1 Stat. Resp. ¶ 28; Def. Exhs. FF.) Plaintiff
testified that he did work on November 22, but had come in late,
and that he recalled saying hello to Lemperle on that day. (Pl. 56.1
Stat. Resp. ¶ 28; Walters 1/5/04 Aff. ¶ 124.)
Ortsman held the Step III hearing. Plaintiff claims that Ortsman denied
him access to search his office for evidence that he was at work on
November 22. Hence, he had no document to corroborate his testimony that
he was at work on that day. (As will be seen, plaintiff has recently
acquired such a document.) Ortsman upheld the termination. (Def. Exhs.
On March 22, 2000, a hearing on unemployment benefits was held before
Administrative Law Judge ("ALJ") Lynn A. Morrell. (Pl. 56.1 Stat. Resp.
¶ 30 and its Exh. 14.)
On May 16, 2000, plaintiff amended his SDHR complaint to reflect his
January 2000 termination. (Def. Exh. PP.)
On May 24, 2000, ALJ Morrell found that plaintiff was absent on both
November 19 and 22, 1999. However, the ALJ found that plaintiff was
entitled to unemployment benefits:
The employer's witness testified that the claimant
called in his absences due to sickness and that a
message regarding the same was received by the
employer. The employer's own policy then places
the burden on the employer to notify the time
records department and to have the claimant's
attendance adjusted as to his use of accrued
Given this policy, it was not unreasonable for
the claimant to rely on the employer to have these
(Pl. Exh. 16.)
On October 11, 2000, the Unemployment Insurance Appeal Board overturned
the ALJ's decision and denied the benefits, finding that "there is no
acceptable explanation for the claimant's failure to properly report his
absence on November 22, 1999 on the time sheet that he submitted
. . ." (Def. Exh. NN.)
On August 10, 2000, plaintiff signed a second EEOC complaint, alleging
retaliation that "started in 1998 after I cooperated with an
investigation of racial discrimination and corruption against some of the senior employees of Bronx-Lebanon
Hospital Center." (Def. Exh. SS.) His attorney, Etta Ibok, says that she
served it on the EEOC by mailing it on August 10. She claims that she
called the EEOC shortly thereafter and that EEOC intake told her that the
charge had been forwarded to the SDHR. She says that she "explained that
plaintiff did not intend to cross file this complaint with the SDHR or
have it merged with the existing SDHR complaint." She also says that the
EEOC assured her that it would trace and retrieve that August 2000
complaint from the SDHR, and that it apparently did so on August 30,
2000, which the EEOC entered as the filing date. (Ibok 1/5/04 Aff. ¶¶
3-9; Def. Exh. SS.)
On February 26, 2001, the EEOC issued a Right to Sue letter on this
second EEOC complaint.
On April 13, 2001, the SDHR dismissed plaintiff's September 3, 1999
complaint on the grounds of administrative convenience, because "the
matter is presently being litigated in Federal Court . . ." (Def.
On May 17, 2001, plaintiff filed his complaint with our Court, alleging
that the same conduct violated Title VII, and 42 U.S.C. § 1981, and
the New York State Executive Law § 296 et seq., and the New
York City Administrative Code § 8-107 et seq. On July 26,
2001, the Hospital defendants moved to dismiss the complaint. On February
2, 2002, Judge Marrero denied that motion.
On February 5, 2002, this case was reassigned to me. On September 25,
2002, plaintiff filed an amended complaint. (Def. Exh. TT.) On January
15, 2003, the action was settled as to Cottrell and Lemperle. The
briefing on the current motion, for summary judgment, was concluded on
January 26, 2004. On March 29, I advised the attorneys that I was writing
an opinion denying summary judgment; we agreed that a jury trial would
commence on July 12.
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 his 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 must 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.).
A. Whether the Pre-Termination Claims Are Precluded by Time
Bars or Other Procedural Defects
In his February 5, 2002 Order at page 2, Judge Marrero wrote:
. . . [T]his Court has jurisdiction over all
the claims that formed a part of the August 2000
EEOC proceedings. The Court further notes that the
allegations in the complaint are substantially
consistent with the claims stated in Walters's
August 2000 EEOC charge: specifically, Walters
alleges that he was subjected to a pattern of
discrimination that began with his participation
in a 1998 internal investigation of the hospital,
continuing thereafter and ultimately leading up to
his allegedly retaliatory termination on January
12, 2000. Because Walters's August 2000 EEOC
charge contains all of these allegations, none of
them are time-barred, and the Court has
jurisdiction to hear all of them.
I note that Judge Marrero's Order was written prior to the U.S.
Supreme Court's decision in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S.Ct. 2061
(June 10, 2002). In
Morgan, the Supreme Court said:
We hold that [Title VII] precludes recovery for
discrete acts of discrimination or retaliation
that occur outside the statutory time period.
536 U.S. at 105, 122 S.Ct. at 2068.
Accordingly, I will now revisit the issue of whether plaintiff's
multifaceted retaliation claim is timely. I will consider each aspect of
his claim separately. I have divided the retaliation claim into four
segments, starting with the oldest. Segment 1: Retaliation consisting of
the comments made during the August 7,
1998 meeting with Underwood and the September 1998
transfer to the Fulton Division. These were the
subjects of plaintiff's September 8, 1998
complaint to the EEOC. (Def. Exh. OO.)
The EEOC issued plaintiff a Right to Sue letter on August 6,
1999. The letter notified him that he must file a lawsuit within 90 days
or his "right to sue based on this charge will be lost." (Def. Exh. 00.)
He failed to do so. Accordingly, plaintiff may not seek Title VII damages
with respect to the 1998 conduct alleged in the charge. Indeed, plaintiff
concedes this point. (See Pl. Mem. p. 11, n. 5.) However, he may
use these incidents as "background evidence in support of a timely
claim." Hernandez v. Kellwood Co., 2003 WL 22309326 (S.D.N.Y.
Oct. 8, 2003) (Swain, J.), quoting Morgan, 536 U.S. at 102, 122
S.Ct. at 2066 (2002).
As to Segment 1, plaintiff also invokes 42 U.S.C. § 1981. In New
York, actions under § 1981 are timely if the complaint is filed in
federal court within three years. Mian v. Donaldson, Lufkin &
Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993);
Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 801
(E.D.N.Y. 1996) (Glasser, J.). Moreover, an employee can bring a §
1981 action against his employer without having to exhaust Title VII's
administrative procedures. Campbell, 930 F. Supp. at 801. Thus,
the § 1981 claim is timely as to Segment 1; a fortiori, it
is timely as to the later segments.
As to Segment 1, plaintiff also invokes the New York City Human Rights
Law, which also has a three-year statute of limitations. N.Y.C. Admin.
Code § 8-502. Hence, the City law claim is timely as to Segment 1;
a fortiori, it is timely as to the later segments.
Segment 2: Retaliation consisting of
the alleged demotion and transfer to the Concourse
Division in late April 1999. This was the subject
of his September 3, 1999 complaint to the SDHR.
(Def. Exh. PP.)
The SDHR complaint was timely under the one-year statute of limitations
in N.Y. Exec. Law § 297(5). Moreover, on April 13, 2001, the SDHR
issued a Right to Sue letter. (Def. Exh. PP.)
Segment 3: Retaliation consisting of
the November 3, 1999 five-day suspension.
This incident of retaliation was mentioned in an internal complaint (Exh. QQ), but was never mentioned in the complaints to
the EEOC and SDHR (Exhs. PP and SS). Plaintiff's counsel has presented
evidence that Exh. SS was mailed to the EEOC on August 10, 2000. (Ibok
Aff. ¶¶ 3-9, Exh. 19.) She also points out that Exh. SS said: "My
unlawful discharge is part of a pattern of the retaliatory conduct that
started in 1998. . . ." However, the Supreme Court has made clear that
the word "pattern" does not excuse a Title VII plaintiff from the
requirement of filing timely "charges addressing [each of] those acts."
Morgan, 122 S.Ct. at 2072. Accordingly, even if Exh. SS was
filed on August 10, 2000, it was still deficient, because it never
mentioned the November 1999 5-day suspension.
Segment 3 cannot form the basis for liability under Title VII or the
State Human Rights Law. However, it could possibly form the
basis for liability under § 1981 and the City Human Rights Law.
Segment 4: Retaliation consisting of
the January 12, 2000 termination. (See
Def. Exhs. PP and SS.)
This segment was raised in the May 16, 2000 amended complaint to the
SDHR, well within the one-year statute of limitations. The SDHR issued a
Right to Sue letter on April 13, 2001. Segment 4 was also raised in the
August 10, 2000 EEOC charge, well within the 300-day filing period. The
EEOC issued the Right to Sue letter on February 26, 2001. Hence, as to
Segment 4, plaintiff has a timely claim under Title VII, § 1981, the
State Human Rights Law, and the City Human Rights Law.
B. Whether a Rational Jury Could Find Prohibited
I will now discuss whether there are any genuine issues of material
fact with respect to the retaliation claims.
Under Title VII, 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). The claims brought under 42 U.S.C. § 1981, the New
York State Human Rights Law, and the New York City Human Rights Law are
also analyzed under the McDonnell Douglas framework. Taitt
v. Chemical Bank, 849 F.2d 775, 777 (2d Cir. 1988) (discussing
42 U.S.C. § 1981); Cruz v. Coach Stores, Inc., 202 F.3d 560,
565 n. 1 (2d Cir. 2000) (discussing State and City Human Rights Law). 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 [he] "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 employment action."
Cifra v. G.E. Co., 252 F.3d 205
, 216 (2d Cir. 2001),
quoting Stunner 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.
For the purposes of this motion, I find that plaintiff has met his
minimal burden of proving a prima facie case, even if there were
no testimony from Rick Bay:
First. Plaintiff participated in the 1998 investigation as a
witness. On July 21, 1998, he and Ms. Martinez discussed Underwood's
alleged use of racial slurs towards the minority employees in his
department, and Ortman's alleged involvement with vendors. Ms. Martinez
does not deny that these topics were discussed.
Second. About two weeks later, Underwood told plaintiff that,
if he did not have plaintiff's loyalty, then plaintiff "must leave or he
would get rid of [plaintiff]." (Walters 1/5/04 Aff. ¶ 31.)
Third. One month later, plaintiff was transferred to the
Fulton Division, and Underwood began to document plaintiff's "performance
Fourth. Upon his return from his medical leave in late April
1999, plaintiff was placed under the supervision of Aramark employees. On
September 3, 1999, plaintiff was permanently transferred to the Concourse
Division and some of his duties were eliminated. He promptly filed a
retaliation complaint with the SDHR. This SDHR complaint was another "protected activity." The
defendants ignore it when arguing that "his July-August 1998 . . .
`protected' activities are so temporally removed from his November 1999
suspension and January 2000 termination. . . ." (Def. Reply, p. 11.)
Fifth. On November 3, 1999, plaintiff was suspended
for five days for allegedly using profanity against his supervisor.
Sixth. On December 1, 1999, plaintiff filed an
internal EEO complaint, alleging that Ortsman, Underwood, Lemperle and
Cottrell discriminated against him because of his race, color and
handicap, and that Underwood was retaliating against him for his
complaints of racial discrimination. (Def. Exh. QQ.)
Seventh. On January 10, 2000, Lemperle reviewed plaintiff's
time records, and plaintiff was terminated.
We now move on to Step Two. The defendants have proffered legitimate,
nonretaliatory reasons for taking the actions they took.
As for transferring plaintiff to the Fulton Division, the defendants
say the reason was legitimate: to provide coverage because other managers
were on leave.
As for transferring plaintiff to the Concourse Division, and excluding
him from certain meetings, and requiring him to log his work assignments,
the defendants argue that these are too insignificant to qualify as
adverse employment actions. But See Terry v. Ashcroft,
336 F.3d 128 (2d Cir. 2003). I plan to hear the trial evidence and then
decide which actions should be presented to the jury as a potential
source of liability. The other actions shall be considered only as
As for the five-day suspension, the defendants allege that plaintiff
yelled and cursed at his supervisor Lemperle.
As for terminating plaintiff for stealing two days of sick leave, the
defendants have submitted evidence that by November 1999 plaintiff had
taken two more sick days than he had accrued. (Def. Reply, p. 6, n. 3;
Griffin-Mahon 1/21/04 Aff. ¶¶ 3-5.) Also, the Hospital submitted
evidence that it terminated other employees who were caught falsifying
their time sheets. (Def. Exh. MM.) But the Hospital has redacted their
names, and has not shown whether those employees had complained about
discrimination. We now move on to Step Three. Once the employer shows that it had
legitimate, nonretaliatory reasons for its actions, 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 retaliation." Cifra, 252
F.3d at 216.
As to the first sick day allegedly stolen, plaintiff points to evidence
that he notified Lemperle and that Lemperle had a duty to correct the
time record for that day. As to the second day, plaintiff has produced
evidence to show that he was present at work on that day (November 22,
1999). Plaintiff's Exhibit 15 is a copy of a purchase requisition, dated
that day and signed by Underwood. At the bottom of the document, the
typist typed "RU/ow." A jury could logically conclude that "RU/ow" means
that Orlando Walters typed this document on that date, to be signed by
Robert Underwood. ((Walters 1/5/04 Aff. ¶¶ 124, 127.)
Moreover, plaintiff has submitted the affidavit of Rick Bay, the former
Aramark employee. Bay says:
9. . . . I recall distinctly that Robert
Underwood kept emphasizing that he wanted Ray
Cottrell and Scott Lemperle to go after Orlando
Walters and to fire him.
10. I also recall distinctly that Robert
Underwood told Ray Cottrell and Scott Lemperle
that Orlando had caused him a lot of problems and
had some kind of pending action against him;
therefore, he (Underwood) could not personally
"touch" Orlando Walters.
11. During this conversation, Mr. Underwood
referred to Orlando Walters as a "piece of shit"
and stated: "I want that piece of shit out of
12. Mr. Underwood assigned primary
responsibility for monitoring Orlando Walters to
Scott Lemperle, instructing him to document all of
Orlando Walters' movements, when he reported to
and left work, went out on breaks, how long he
took, etc., and to check his computer regularly to
make sure that he was using it only for job
13. I recall distinctly that, at the end of the
discussion, Robert Underwood told Ray Cottrell and
Scott Lemperle that he wanted daily "progress
reports and updates" on "Orlando's termination."
Plaintiff has clearly met his Step Three burden.
The Title VII claim is brought only against the Hospital. But
plaintiff brings the same retaliation claim against all three defendants
under § 1981 and the State and City Human Rights Laws.
In Whidbee v. Garzarelli Food Specialities, Inc.,
223 F.3d 62 (2d Cir. 2000), the Second Circuit said:
We now explicitly hold what was implicit in our
previous cases: individuals may be held liable
under § 1981. We agree with the Tenth
Circuit, however, that in order to make
out a claim for individual liability under §
1981, a plaintiff must demonstrate "some
affirmative link to causally connect the actor
with the discriminatory action." Alien [v.
Denver Pub. Sch. Bd.], 928 F.2d  at 983
[(10th Cir. 1991)]. "A claim seeking personal
liability under section 1981 must be predicated on
the actor's personal involvement." Id.;
See also Hicks [v. IBM], 44 F. Supp.2d
 at 597 [(S.D.N.Y. 1999)] ("In each of the
cases that have allowed individual liability
[under § 1981], the individuals have been
supervisors who were personally involved in the
Whidbee, 223 F.3d at 75.
Individuals can also be held personally liable under the New York State
and New York City Human Rights Laws:
An individual corporate employee may be personally
liable under the State HRL if he can be
shown to have an ownership interest in the
corporation or the "power to do more than
carry out personnel decisions made by
others." Tomka [v. Seiler], 66 F.3d 
at 1317 [(2d Cir. 1995)] . . . The New York
City law "prohibits discriminatory
practices not only by an "employer," but also by
"an employee or an agent thereof," and thus
provides for the individual liability of employees
regardless of ownership or decision-making power.
Murphy v. ERA United Realty, 251 A.D.2d 469,
674 N.Y.S.2d 415, 417 (2d Dep't 1998).
Under both statutes, the plaintiff must
show that the defendant engaged in "discriminatory
acts." Stallings v. U.S. Elec. Inc.,
270 A.D.2d 188, 707 N.Y.S.2d 9, 10 (1st Dep't 2000);
See also Smith v. AVSC Int'l, Inc., 148 F. Supp.2d 302, 309 (2d Cir. 2001).
Jong-Fwu v. Overseas Shipholding Group, Inc., 2002 WL 1929490,
at *7 (S.D.N.Y. Aug. 21, 2002) (Cote, J.) (emphasis added). In footnote
3, Judge Cote noted that a person may be individually liable under §
296(6) of the State law if he:
"aid[s], abet[s], incite[s], compel[s] or coerce
[s] the doing of any of the acts forbidden under
this article, " as long as the person in question
actually participates in the discriminatory
conduct. See, e.g., Tomka, 66 F.3d at
1317; Murphy, 674 N.Y.S.2d at 417.
Plaintiff has clearly met his burden as to Underwood. Whether he has
met his burden as to Ortsman is a closer question, but I find the
evidence at this stage to be sufficient.
Perhaps the most powerful evidence against Ortsman is the following. On
August 10, 1998, Ortsman summoned plaintiff to a meeting. Ortsman told
him that President Fuentes had asked Ortsman to speak to plaintiff about
the statements plaintiff had made to the investigating attorneys (Ms.
Martinez and Mr. Steckler). The crucial allegation is that Ortsman
required plaintiff to reveal what he told the investigators
about Underwood. Plaintiff did so, and also informed Ortsman
that Underwood had threatened him. (Walters 1/5/04 Aff. ¶¶ 34-38.)
A jury could logically conclude as follows. President Fuentes had
probably shown Ortsman the anonymous letter, including its allegation
that Underwood had used racial slurs. Ortsman also learned that plaintiff
had given information to the investigators which was potentially harmful
to both Ortsman and Underwood. At that point, plaintiff had said that
Underwood (but not Ortsman) was involved in racial discrimination; he had
blamed Ortsman for questionable contract dealings. But Ortsman
aggressively required plaintiff to reveal what he told the investigators
about Underwood. A jury might logically conclude that Ortsman's
motivation was to warn Underwood, and to spur Underwood (a) to discourage
all of plaintiff's "disloyal" statements and (b) if necessary, to fire
I deny defendants' motion for summary judgment as to the retaliation
claims. The Title VII claim is limited to the termination. Plaintiff
wants to pursue at least one non-Title-VII claim, evidently so he can
seek damages for the mental suffering reflected in the three-month medical leave in early 1999,
which he alleges was caused by the earliest acts of retaliation. But I
See a complication that has not been discussed by the parties.
There is a possibility that the defendants would seek to introduce
evidence of the October 2000 decision of the Unemployment Insurance
Appeal Board, for possible collateral estoppel effect as to the
legitimacy of the termination. This would be impossible as to Title VII,
but possible as to all the other statutes invoked by the amended
complaint. See Kosakow v. New Rochelle Radiology Associates,
P.C., 274 F.3d 706, 727-30 (2d Cir. 2001). I suggest that plaintiff
simplify this case as follows:
A. Under the New York City Human Rights Law, ask the jury to rule, as
to all three defendants, on Segments 1, 2 and 3 only.
B. Under Title VII (where the only defendant is the Hospital), ask the
jury to rule on the termination claim (Segment 4).
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