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February 2, 2005.


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


Plaintiff Claudette Phipps brought this action against Comprehensive Community Development Corporation d/b/a Soundview Health Center ("CCDC"), Pedro Espada, Sandra Love, Maria Cruz, Melba Conley and Esther Hill (collectively "defendants"), asserting employment discrimination, retaliation and hostile workplace claims based on race and national origin pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 ("Section 1981"); and New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 291 et seq. Specifically, Phipps, a black woman of Jamaican national origin, alleges that defendants made racially derogatory comments, forced her to hire Hispanic individuals, retaliated against her when she filed a charge with the Equal Employment Opportunity Commission ("EEOC") and terminated her from her position at CCDC based on unlawful discrimination. Phipps has separately asserted a breach of contract claim against defendants based on their alleged failure to protect her from defamation.

Defendants now move for summary judgment on all of plaintiff's claims of employment discrimination. For the reasons set forth below, the Court grants summary Page 2 judgment on Phipps' claims of employment discrimination, retaliation and hostile work environment. The remaining state law claims for breach of contract are dismissed without prejudice for lack of pendent subject matter jurisdiction.


  Unless otherwise indicated, the following facts are undisputed.*fn1 CCDC is a not-for-profit corporation authorized under New York laws that operates Soundview Health Center ("Soundview"), an outpatient community health center. (Defs.' 56.1 ¶ 1; Pl.'s 56.1 ¶ 1.) Pursuant to a license issued under Article 28 of New York's Public Health Law, CCDC provides medical services including diagnostic and treatment services. (Defs.' 56.1 ¶ 2; Pl.'s 56.1 ¶ 2.) Pedro Espada Jr., a Hispanic, founded CCDC and served as President of CCDC at all relevant times. (Defs.' 56.1 ¶ 4; Pl.'s 56.1 ¶ 10.) Page 3

  I. Phipps' Employment at CCDC from 1995-1997

  A. Phipps' Hiring by CCDC

  Phipps sent a letter dated July 20, 1990 to Maria Cruz seeking to apply for the position of Program Director of CCDC's Women, Infants and Child Program ("WIC Program") advertised in The New York Times. (Defs.' 56.1 ¶ 34.) In support of this letter, Phipps attached her resume which included experiences such as her employment as "Teacher of Home Economics, Vere Technical High School, Jamaica W.I." from September of 1977 until June of 1980. (Defs.' Ex. L at 3.) The resume also listed Phipps' "Honors Diploma — Technical Education Nutrition" received in June of 1977 at "College of Art, Science and Technology, Kingston, Jamaica, West Indies." (Id.)

  At this time, Espada, a Hispanic male, was serving as President of CCDC, Sandra Love, a black female,*fn2 was Vice President, and Cruz, a Hispanic female, was Espada's executive assistant. (Defs.' 56.1 ¶ 38; Pl.'s 56.1 ¶ 10.) In response to Phipps' application, Cruz set up an appointment for the interview, and Espada and Jim Knox, then Vice President at CCDC, interviewed Phipps. (Phipps Dep. Tr. at 9.) Based on his meeting with Phipps and her application, Espada knew that Phipps was black and from Jamaica. (Espada Decl. ¶ 2.) Espada decided to hire Phipps as Director of the WIC Program, commencing on or about August 10, 1990, and contends that her race and national origin had no effect on his decision to hire her. (Defs.' 56.1 ¶ 37; Espada Decl. ¶ 7.) Love met Phipps around this time and learned soon after her hiring that she was from Jamaica. (Love Decl. ¶ 12.) Page 4

  Phipps was not given a job description at the time of her hiring. (Pl.'s 56.1 ¶ 37.) Her starting salary was approximately $31,000 a year. (Phipps Aff. ¶ 3.) Through several salary increases during the course of her employment, Phipps' annual salary at the end of her employment rose to $80,000. (Defs.' 56.1 ¶ 42.)

  B. Phipps' Management of the 731 White Plains Road Clinic

  In or about 1995, Phipps received added clinic management responsibilities regarding the Managed Care and Credentialing Program, HMO contracting, the Children's Medical Center and CCDC's main medical clinic at 731 White Plains Road ("731 WPR Clinic"). (Defs.' 56.1 ¶ 43; Pl.'s 56.1 ¶ 43.) Around this time, CCDC also promoted Phipps to the position of Assistant Vice President. (Defs.' 56.1 ¶ 44; Pl.'s 56.1 ¶ 44.) The parties sharply contest how Phipps received those added responsibilities. Defendants simply claim that Phipps requested them. (Def.'s 56.1 ¶ 43.) According to Phipps, Dr. Azimah Ehr, then Vice President of Clinical Affairs, had a private conversation in which she told Phipps that she did not want to work with Cruz. (Phipps Dep. Tr. at 140; Phipps Aff. ¶ 10.) As such, Dr. Ehr had suggested to Espada that Phipps take on those responsibilities, and Espada had agreed. (Phipps Dep. Tr. at 140-41.) In any event, Phipps was given clinic management duties at the 731 WPR Clinic that had belonged to Cruz. (Espada Dep. Tr. at 152.)

  Plaintiff asserts that Dr. Ehr informed her that Cruz would be subsequently transferred to the Burnside Clinic against her own wishes. (Id. at 141.) Phipps further contends that Cruz became angry that she had been displaced.*fn3 (Phipps Aff. ¶ 11.) According to plaintiff, Cruz "set about to sabotage" her by having meetings in the early Page 5 mornings with staff prior to going to the Burnside Clinic even though Cruz no longer supervised the staff at the 731 WPR Clinic. (Phipps Aff. ¶ 12.) In a cabinet meeting held because the computers at the 731 WPR Clinic suffered a breakdown, Cruz suggested to Phipps that she consult her on a more frequent basis regarding the operations of the 731 WPR Clinic to avoid such problems in the future. (Phipps Dep. Tr. at 133.) Although Phipps considered the suggestion "hypocritical," she acquiesced and followed up with Cruz. (Id. at 134.) Phipps maintains that she told Cruz that "I wanted to work just like anybody else and I was not about displacing anybody or taking their job and that I got the impression that ever since I was given this responsibility, that that was the vibe that I was getting and one of the reasons why I did not, you know, sit down in any meetings with [you]." (Phipps Dep. Tr. at 137.)

  By her own admission, Phipps was not successful in managing the 731 WPR Clinic. (Id. at 142.) Phipps felt that the administrative staff did not support or assist her and that to her detriment, Dr. Ehr had been terminated, leaving Love as her new supervisor. (Id. at 137.) Soon after she assumed the position, Espada, Love and Cruz began receiving numerous complaints from staff employees who were not part of the WIC Program regarding Phipps' failure to manage the 731 WPR Clinic.*fn4 (Defs.' 56.1 ¶ 151.) At a meeting held with medical assistants and HIV workers initiated by Espada at CCDC's office at Trumbull Avenue, numerous staff members voiced their criticisms regarding Phipps' performance as a manager in the presence of Phipps, Espada, Cruz and Love. (Phipps Dep. Tr. at 144; Espada Decl. ¶¶ 15-16; Cruz Decl. ¶¶ 18-19; Love Decl. Page 6 ¶ 28.) Phipps was completely shocked by the comments and could not respond because she felt "railroaded" by the overwhelming criticism. (Phipps Dep. Tr. at 145-46.) However, Phipps does not claim that the staff complaints were animated by racial or national origin discrimination. Following the meeting, Phipps spoke with Love who was surprised by the number and intensity of the comments articulated by the staff members. (Conley Decl. ¶¶ 28-29; Phipps Dep. Tr. at 146.)

  Because Phipps did not believe that there were any issues to be resolved, she did not take any steps following the meeting. (Pl.'s 56.1 ¶ 155.) Subsequently, Phipps was relieved of supervising the front desk as well as some of her clinic manager duties at 731 WPR although she remained responsible for the Prenatal Care Assistance Program and HIV Programs. (Phipps Aff. ¶ 19.) Phipps remained WIC Program Director despite the reductions in her responsibilities at the 731 WPR Clinic. (Defs.' 56.1 ¶ 156.)

  C. Love's Evaluation of Phipps' Managerial Skills

  In April of 1997, Love completed an annual performance appraisal sheet in which she rated Phipps as mostly "very good" in each of the behavioral ratings including quality of work, punctuality on the job, cooperation and ability to accept criticism. (Phipps Aff., Ex. A.) Moreover, Love specifically described Phipps as possessing "very good management and organizational skills," as well as "keen at recognizing problems." (Id.) The one area of weakness that Love listed was Phipps' "interaction with some team players." (Id.) Love did not score Phipps in any respect as "below expected level" or "unsatisfactory." In Phipps' employee remarks appended at the end of the evaluation sheet, Phipps responded that she "appreciate[d] the honesty of this evaluation." (Id.) Page 7

  According to Love, she overrated Phipps because she did not want to put anything on Phipps' record that could be perceived as "damaging." (Love Dep. Tr. at 93.) However, she maintains that she talked to Phipps about her attitude towards coworkers because Phipps "had difficulties in dealing with some of the cabinet members. Either she didn't like them or she felt that they didn't like her." (Id.) Love further contends that she told Phipps to get counseling for her "persecution complex" and to "try to be more of a team player." (Id. at 96-97.)

  II. Phipps' Subsequent Employment Problems

  A. Phipps' Relationship With Other Employees

  1. Employee Complaints Against Phipps

  From at least December of 1998 until the date of her termination on May 7, 1999, Phipps' supervisors, including Love, Espada, and Melba Conley, the Human Resources Director, received numerous complaints from WIC Program employees regarding Phipps.*fn5 (Defs. 56.1 ¶ 61.) Conley stated that she received complaints as early as 1997. (Conley Decl. ¶ 75.) For instance, Conley claims that Liliana Martin, an assistant nutritionist, stated that she would not return to work in August of 1997 because she was "afraid" of Phipps who allegedly "disrespected and taunted her."*fn6 (Id. ¶ 76.) Conley also received a complaint from Rita Krever, another employee, regarding her difficulties in communicating with Phipps. (Defs.' 56.1 ¶ 94.) Although Phipps admits that Conley Page 8 relayed this information to her, Phipps asserts that when she confronted Krever, she denied making any complaints. (Pl.'s 56.1 ¶ 97; Defs.' 56.1 ¶ 94.)

  Other employees such as Sasha Stewart, Delores Montemurro, Joan Lewis, Margarita Soto and Sherrill McDermott voiced criticisms of Phipps' unfair treatment, ineffective communications and retaliatory attacks. (Defs.' 56.1 ¶¶ 95-100.) Phipps does not contest that these employees made complaints, but rather disputes the truth asserted therein. (Pl.'s 56.1 ¶¶ 92, 95-100.) Phipps admitted that at least four employees complained to her that she favored Cheryl Boston over other employees because of their personal relationship prior to working at CCDC. (Phipps Dep. Tr. at 227; Pl.'s 56.1 ¶ 144.) Phipps further admitted that in late 1998 or early 1999, Stewart complained about Phipps' management to their pastor, Reverend Cole, and other members of the congregration at the church they both attended. (Defs. 56.1 ¶ 139; Pl.'s 56.1 ¶ 139.) When Stewart was terminated, she blamed the determination on Phipps. (Defs.' 56.1 ¶ 139; Pl.'s 56.1 ¶ 139; Phipps Dep. Tr. at 233.) However, Phipps disputes that numerous employees felt that she created a "hostile work environment" and protests that she did not "make improper statements or threatening remarks in the workplace." (Defs.' 56.1 ¶ 102; Pl.'s 56.1 ¶ 102.).)

  In response to these complaints, Conley organized a staff meeting with Phipps present. (Defs.' 56.1 ¶ 72.) According to defendants, the "purpose of the meeting was to have an airing of employee grievances and to foster a productive dialogue between and among Phipps and her staff." (Id.) Phipps acknowledges that "there was a meeting where Conley tried to get people to offer negative criticism of me." (Pl.'s 56.1 ¶ 62.) However, she asserts that the complaints made were "refuted, because none of them were Page 9 true." (Id.) Moreover, Phipps vaguely claims that she "responded to these supposed criticisms and showed them to be untrue," (Pl.'s 56.1 ¶ 62), although defendants maintain that at the staff meeting, she did not answer the criticisms or engage in dialogue with her staff members. (Defs.' 56.1 ¶ 74.)

  2. Noel Haughton

  Phipps acted as Haughton's main supervisor. (Defs.' 56.1 ¶ 118; Pl.'s 56.1 ¶ 118.) Haughton's "principal" job was to perform custodial services for the WIC Program although he had other minor duties. (Phipps Dep. Tr. at 266.) On occasions when Haughton was supposed to clean the sidewalk outside the Allerton Avenue Center, he was frequently late. (Phipps Dep. Tr. at 242.) As a result, the WIC Program received tickets for the sidewalk violations. (Id.) It is disputed whether Haughton was "chronically late" in cleaning up the sidewalk and opening up the WIC Program center site. (Defs,' 5.1 ¶ 126; Pl.'s ¶ 126.)

  After CCDC hired Haughton, Haughton moved into a part of Phipps' residence. (Pl.'s 56.1 ¶ 122.) Although Phipps initially charged Haughton rent, Phipps reduced that rent in exchange for Haughton's services in driving her daughter, Melissa, to school by 7:30 a.m. (Id.; Phipps Dep. Tr. at 395.) In the school year of 1998-1999, Haughton "drove Melissa to school most days" of the week. (Phipps Dep. Tr. at 264.) Moreover, Phipps admits that Haughton may have arrived late to work when he was driving Melissa to and from school. (Id.)

  It is undisputed that Phipps did not discipline Haughton or deduct any of his pay for these latenesses because she felt that it was not her responsibility even though she was his supervisor. (Defs.' 56.1 ¶ 129; Pl.'s 56.1 ¶ 129.) Eventually, another employee, Page 10 Sandria Robertson, received the responsibility of unlocking the Allerton Avenue Center on time. (Defs.' 56.1 ¶ 128; Pl.'s 56.1 ¶ 128.)

  In or about February of 1999, Love, then Senior Vice President, and Conley attended a WIC Program staff meeting to present the staff with an award for its excellence. (Defs.' 56.1 ¶¶ 130-31; Pl.'s 56.1 ¶¶ 130-31.) When Love was speaking to the staff, Haughton made what Conley and other staff members perceived to be rude, sarcastic and disrespectful comments. (Defs.' 56.1 ¶ 132.) Phipps did not consider the remarks to be rude and therefore did nothing to stop him. (Phipps Dep. Tr. at 353-55.) Conley confronted Phipps and told her that she was "shocked that as WIC Program Director, [Phipps] did not intervene at her staff meeting and stop Mr. Haughton from his public showing of disrespect to CCDC and to its Senior Vice President." (Conley Decl. ¶ 105.) Although Phipps told Haughton that his behavior was perceived as "rude," she did not tell him to apologize. (Phipps Dep. Tr. at 354.)

  B. Phipps' Difficulties with Love, Cruz and Conley

  1. Love

  Following Dr. Ehr's termination from CCDC, Phipps directly reported to Love, who was her supervisor. (Phipps Dep. Tr. at 38; Defs.' 56.1 ¶ 105.) At one point, Love informed Phipps that Dr. Israel Praiss, the Medical Director and/or Vice President of Clinical Affairs, would become her new supervisor. (Love Decl. ¶ 14; Pl.'s 56.1 ¶ 105.) However, Phipps objected to Dr. Praiss becoming her supervisor because she wanted Love to continue supervising her. (Phipps Dep. Tr. at 388.)

  Despite wanting Love as her direct supervisor (id.), Phipps claims that Love "enforced the atmosphere of discrimination and racism" at CCDC. (Id. at 29.) Phipps Page 11 interpreted Love's behavior as discriminatory whenever she "was called to do anything that was not in line with the policies of the program." (Id.) For instance, Phipps considered Love's questions regarding her meeting with another employee about starting a labor union as "constant harassment." (Id.) Phipps defined "discrimination" as "anything going against ethics . . . and based on . . . race, nationality, sex, religion. . . ." (Id. at 30.)

  Phipps further claims that Espada, Love and Conley applied pressure on her to hire more Hispanics. (Pl.'s 56.1 ¶ 109; Phipps Dep. Tr. at 54-55.) After Phipps hired Cheryl Boston, Espada "expressed displeasure to [Phipps] over hiring her and noted that [she] should hire more Hispanics." (Phipps Aff. ¶ 34.) Defendants have not directly contested this issue.*fn7 Yet Phipps admitted that in light of the client population being served, the WIC Program needed employees who were familiar with Hispanic culture and could speak Spanish (Phipps Dep. Tr. at 361-63, 497.) Neither party has offered statistical evidence comparing the relative number of Hispanic clients to the number of Hispanic staff members.

  Moreover, Love took Phipps out to lunch on two occasions to tell her who to hire at the WIC Program. (Phipps Dep. Tr. at 28.) Specifically, Love instructed her to hire Haughton, who was black and Jamaican, as well as Robertson, who was African American. (Phipps Dep. Tr. at 27-28, 235.) Phipps admits that she selected Cheryl Page 12 Boston, a black Guyanese woman, and Sasha Stuart, a ...

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