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
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 ...