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September 1, 2004.


The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


Plaintiffs Barbara Thomas ("Thomas"), John Arceo ("Arceo"), and Nelson Cintron ("Cintron") (collectively "plaintiffs") brought this action against their current employer, the New York City Health and Hospitals Corporation ("HHC"), and their former supervisor, former HHC employee Frank Taormina ("Taormina") (collectively "defendants"), alleging hostile work environment, disparate treatment, and retaliation in violation of 42 U.S.C. §§ 1981 and 1983; New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL");*fn1 and the New York City Human Rights Law contained in Article 8 of the New York City Administrative Code ("NYCHRL"). Defendants moved for summary judgment, and also moved to strike three of the declarations submitted by plaintiffs in opposition to the motion for summary judgment. Defendants' motion to strike is denied, and their motion for summary judgment is granted in part and denied in part, for the reasons set forth below.


  Unless otherwise noted, the following facts are not in dispute.*fn2 All three plaintiffs are non-white, and are and were at all periods relevant to this action employed as security officers at Jacobi Medical Center ("Jacobi"), a hospital operated by HHC, a public corporation. (Defs.' 56.1 ¶¶ 6, 38, 51.) On or about March 10, 1998, Taormina, who is white, became the Director of Hospital Security at Jacobi, and was plaintiffs' supervisor until he left this position on or about October 8, 2002. (Taormina Decl. ¶ 1.) Plaintiffs allege that they were subjected to disparate treatment, harassment, a hostile work environment, and unlawful retaliation at the hands of Taormina because of their race, skin color, or ethnicity.

  Barbara Thomas

  Thomas, an African-American woman, has been employed by HHC since about October 9, 1990, and was working as a security officer at Jacobi at the time that Taormina became Director of Hospital Security. (Defs.' 56.1 ¶ 6.) She had had no disciplinary problems or unsatisfactory performance evaluations prior to being supervised by Taormina. (Thomas Decl. ¶ 4.) During Taormina's tenure as her supervisor, however, three workplace incidents convinced Thomas that Taormina was discriminating against her because of her race. The first was a verbal altercation between the two on December 10, 1998, arising out of a criminal summons Thomas issued to a Jacobi elevator operator who had allegedly assaulted her and called her a racially offensive name. (Defs.' 56.1 ¶¶ 8-10.) Taormina was unhappy with the form of the summons or the procedure by which Thomas had obtained it, and directed Thomas to void it. (Id. at ¶ 12.) A heated argument ensued, during which Taormina, upon hearing that the elevator operator had called Thomas a "black bitch," allegedly said, "I agree." (Id. at ¶ 11.) As a result of this exchange, Thomas was suspended from duty and charged with insubordination and falsification of legal documents. (Id. at ¶¶ 14-15.) The Office of Labor Relations at Jacobi held a disciplinary proceeding against Thomas on January 13, 1999, at which both Thomas and Taormina testified and at the conclusion of which the hearing officer recommended that Thomas be terminated. (Id. at ¶¶ 18-20.) Thomas appealed that recommendation to the City of New York Office of Administrative Trials and Hearings ("OATH"). (Id. at ¶ 21.) Pursuant to that appeal, a trial was held on April 7, 2000 at which Thomas was represented at trial and proffered testimony on her own behalf (Id. at ¶ 22.) The presiding Administrative Law Judge ("ALJ") issued a report and recommendation dated June 3, 1999, finding that Thomas had improperly refused to comply with her commanding officer's lawful order and had been insubordinate and verbally abusive, and recommending as a penalty a 15-day suspension. (Goldenberg Decl. Ex. H at 14-15.) The ALJ noted that Thomas' misconduct "would warrant a lengthy suspension despite her unblemished employment record," but that "her supervisor's misbehavior" (i.e., Taormina's being "the first to elevate the volume and hostility level of the discussion, particularly by endorsing the racial epithet"), was a "mitigating factor." (Id. at 13, 15.) The Office of Labor Relations accepted the ALJ's recommendation, and on or about April 18, 2000, the HHC's Personnel Review Board affirmed the determination on appeal by Thomas. (Defs.' 56.1 ¶¶ 25-26.)

  During the period that Thomas' disciplinary charges were being processed, Thomas filed complaints with the New York State Division of Human Rights and the New York City Commission of Human Rights in connection with the December 10 incident. (Id. at ¶ 27-28.)

  The second incident involving Thomas arose when Thomas developed an infected ulcer on her foot that required her to visit the emergency room at Jacobi on or about February 25, 2001. (O'Neill Decl. Ex. B at 67, Ex. F.) Thomas subsequently went on medical leave. In a letter dated August 22, 2001, Taormina informed Thomas that since Jacobi's records "indicate that you have been absent . . . since February 26, 2001," Thomas would have to submit a doctor's note indicating prognosis and date of return to work, or else she would be subject to disciplinary action. (Goldenberg Decl. Ex. M.) Thomas failed to respond to the August 22 letter as required (Goldenberg Decl. Ex. N), although it appears that she had submitted regular "Reports of Continued Disability" to her union during her absence from work, and that each of these forms were signed, stamped and dated by a Jacobi payroll office employee (O'Neill Decl. Ex. F). On or about October 1, 2001, Thomas was charged with Absence Without Official Leave ("AWOL") (Goldenberg Decl. at Ex. O), and in a letter from HHC's Office of Labor Relations ("OLR") dated October 3, 2001, Thomas was directed to contact her department head within three days to explain and document the reason for her absence (Id. at Ex. P). Thomas "failed to contact the [OLR] and/or her department regarding her AWOL status." (Goldenberg Decl. Ex. N.) On November 1, 2001, the OLR held a disciplinary conference on the AWOL charge, after which the hearing officer recommended that Thomas be suspended for 30 work days. (Id. at Ex. N.) Thomas appealed that recommendation to OATH, but the matter was resolved without a decision on or about January 6, 2004, when Thomas reached an agreement with her employer to serve a suspended five-day suspension on the AWOL charge. (Defs.' 56.1 ¶ 35; Trans. of oral argument, July 14, 2004, 22:19-23:10.) Plaintiffs allege that the AWOL charge in 2001 was Taormina's retaliation against Thomas for complaining to the New York State Division of Human Rights in March 1999 about Taormina's conduct during the December 10, 1998 incident. (Thomas Decl. ¶ 15.)

  The third incident involving Thomas is the change in her tour of duty at Jacobi in early 2001 from the graveyard shift to the day shift. (Defs.' 56.1 ¶ 36; Pls.' 56.1 ¶ 36.) Plaintiffs allege that the tour change was Taormina's further retaliation against Thomas for complaining about Taormina's conduct during the December 10, 1998 incident. (Thomas Decl. ¶ 15; Goldenberg Decl. Ex. D at 103-105.)

  John Arceo

  Arceo, a self-identified minority (Arceo Decl. ¶¶ 22-23) who has worked as a security officer at Jacobi since on or about June 4, 1984 (Defs.' 56.1 ¶ 38), cites three incidents as supporting his claim of employment discrimination. The first incident occurred on or about March 11, 1999, after Arceo participated (with plaintiff Cintron) in the arrest of a patient at Jacobi. (Defs.' 56.1 ¶ 40.) After the incident, Arceo was served with disciplinary charges for, among other things, failing to void Cintron's arrest of the patient so that Taormina had to void it himself, and insubordination for failing to submit a written statement to Taormina about the incident. (Id.) The disciplinary charges were all withdrawn and the charges dismissed, upon the unwillingness of one witness to testify and a memo from Taormina to the hearing officer requesting that the charges be dismissed "based on new information received." (Goldenberg Decl. Ex. S.) Arceo filed a grievance with his union about Taormina's "abusive and threatening behavior" immediately after the incident, when Taormina allegedly cursed at him in front of other employees. (O'Neill Decl. Ex. CC.)

  The second incident was a change in Arceo's tour of duty in or around 1998. (Defs.' 56.1 ¶ 43.) While Arceo's union filed a grievance about the change on his behalf, the grievance was later withdrawn because Arceo was "comfortable on his new tour and [did] not wish to have any further disruption of his lifestyle." (Goldenberg Decl. Ex. U.) Plaintiffs allege that the tour change was Taormina's retaliation against Arceo for reporting on "incompetence and inappropriate behavior" by another employee whom Taormina favored. (Arceo Decl. ¶ 10.)

  The third incident arose out of a performance evaluation received by Arceo for the April 1998 to April 1999 period. Taormina wrote a memo dated April 13, 1999, to Arceo's immediate supervisor, Lt. Jesus Roman ("Roman"), informing Ramon that he found the evaluation Roman had prepared for Arceo "unacceptable" because in it Roman gave Arceo an overall grade of "outstanding," while in Taormina's view (in light of some complaints Arceo had received) a grade of "unsatisfactory" was "a much more accurate evaluation of his performance." (O'Neill Decl. Ex. P.) Roman refused to accede to this instruction. (Roman Decl. ¶ 3.) In a memo with a June 1999 date, Taormina's assistant told Roman that "Frank [Taormina] said give Arceo a satisfactory evaluation, he has been doing good work." (Id. at Ex. Q.) Subsequently, Arceo apparently received an evaluation with a "satisfactory" grade, signed by Roman, Taormina, and Arceo. (Id. at Ex. R.) Arceo did not file an objection to this evaluation rating. (Defs.' 56.1 ¶ 48.)

  Nelson Cintron

  Cintron, a Hispanic man who has worked for HHC as a security officer since on or about January 2, 1979 and had never had any disciplinary charges brought against him prior to being supervised by Taormina (Cintron Decl. ¶ 21), cites as evidence of discrimination several instances in which Taormina brought disciplinary action against him. First, in an incident on March 11, 1999 incident referred to above, Cintron arrested a patient who had assaulted him in the psychiatric ward. (Defs.' 56.1 ¶ 53-54; Cintron Decl. ¶¶ 7-9.) Taormina wanted the arrest voided, and a dispute ensued over the propriety of the arrest. (Taormina Decl. ¶ 13; Cintron Decl. ¶¶ 10-13.) According to Cintron and a then-coworker who witnessed the incident, Taormina acted in a physically aggressive way toward Cintron during this incident and said, "I am going to take to take your job, you fucking Spic." (Cintron Decl. ¶ 10-11; Muniz Decl. ¶¶ 6-7.) Taormina denies having made this statement. (Taormina Decl. ¶ 14.) Cintron was later charged with eight disciplinary offenses resulting from this incident (Defs.' 56.1 ¶ 58.). A hearing was held on the charges (Id. at ¶ 59), and during the hearing and pending the decision, Cintron was suspended without pay (Cintron Decl. ¶ 15). Cintron pled no contest to the charges for the "sole reason" that "I was not receiving any salary during the time I was out," and after pleading no contest "I would then immediately return to work with pay." (Id. at ¶ 16.) Cintron received a penalty of a 27-calendar day suspension. (Defs.' 56.1 ¶ 60.) Cintron filed a complaint with the internal Inspector General's Office of Jacobi about the incident. (Cintron Decl. 17.)

  Two more charges were preferred against Cintron in mid-2000, accusing him of falsifying his time sheet and acting insubordinately by refusing his supervisor's order to turn over his memo books. (Defs.' 56.1 ¶ 62-63.) Cintron was found guilty after a hearing and a 30-day suspension was recommended. (Id. at ¶ 64.) A third set of charges was served on Cintron on or about August 23, 2000, in which he was charged with abandonment of post, failure to follow procedure, and being AWOL. (Id. at ¶ 67.) Cintron was found guilty of two of the charges after a hearing, and the hearing officer recommended that he be terminated. (Id. at ¶¶ 68-69.) Cintron appealed both decisions to OATH, and ultimately entered into a stipulation with HHC pursuant to which he pled guilty to some of the charges and agreed to a 20-day suspension. (Id. at ¶¶ 66, 71.) Cintron believes that the 2000 disciplinary charges were brought against him as retaliation for the March 11 incident and the complaint that Cintron filed regarding Taormina's conduct during that incident. (Cintron Decl. ¶ 17.)

  In addition to the disciplinary charges, Cintron cites his tour change in or around March 1999 as another instance of harassment by Taormina, who denied Cintron's request not to be changed even though the change would pose a hardship. (Id. at ¶¶ 4-6.) Cintron alleges that Taormina's treatment of him was racially motivated. (Id. at ¶ 21.) DISCUSSION

  Before examining the parties' arguments and evidentiary submissions in support of and opposition to the summary judgment, the court must resolve issues raised by defendants as to the scope of the allegations and the evidence that the court may consider in deciding this motion.

  A. Motion to Strike

  Defendants move, pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure, to strike the declarations of non-parties Jesus Roman, Jonathan Muniz, and Eunice Rodriguez, which plaintiffs submitted in opposition to the summary judgment motion. Rule 37(c)(1) provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) [of the Federal Rules of Civil Procedure] . . . is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R. Civ. P. 37(c)(1); see Commercial Data Servers, Inc. v. Int'l Bus. Machs. Corp., 262 F. Supp. 2d 50, 61 (S.D.N.Y. 2003). Rule 26(a) requires, inter alia, that each party to an action provide other parties with "the name . . . of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses." Fed.R. Civ. P. 26(a)(1)(A).

  In support of their argument, defendants submit a portion of a transcript of a pretrial conference with the court purportedly demonstrating plaintiff's violation of the court's directive. However, the transcript makes clear that plaintiffs did make disclosure pursuant to Rule 26(a)(1). (Transcript of Conference before Hon. Shira A Scheindlin, July 29, 2003 (Trans."), 12:18-20.) Defendants wanted to know which of the seventeen individuals identified by plaintiffs would likely provide declarations at the summary judgment stage, so that defendants would know which individuals to depose. (Trans. 13:5-9.) The court twice advised defendants' counsel to ask plaintiffs' counsel which of the seventeen he would use. (Trans. 15:7-8, 16-18.) The court also directed defendants' counsel to tell plaintiffs' counsel who would provide declarations. (Trans. 16:3.)

  Defendants do not allege either that the three individuals whose declarations are at issue were not disclosed in plaintiffs' 26(a)(1) materials or that plaintiffs' counsel refused to provide information reasonably sought by defendants. They merely argue that the court ordered plaintiff to specifically identify which of the individuals already disclosed would supply declarations. This, they argue, "would allow defendants to depose these individuals." (Defs.' Mem. of Law in Supp. of Their Mot. to Strike, at 2.) Yet, as the court pointed out at the pretrial conference, defendants were not prevented from deposing identified non-party witnesses (Trans. 13:10-11), and they were repeatedly encouraged to ask plaintiffs' counsel whom to depose. Judging solely by this transcript, the court can only conclude that defendants' counsel omitted to ask plaintiffs' counsel to narrow down his list, and that plaintiffs' counsel failed to do so unprompted. The ...

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