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April 9, 2004.


The opinion of the court was delivered by: DOUGLAS EATON, Magistrate Judge


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 non-retaliation claims.

  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 claims.


  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 minority employees.

  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 about plaintiff:
. . . [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 check requisition.
  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 me.
(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 Rights ("SDHR").

  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 ...

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