United States District Court, E.D. New York
August 15, 2005.
SYLVIA REYES, Plaintiff,
NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, Defendant.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
In this action under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17, plaintiff, Sylvia Reyes
("Reyes"), proceeding pro se, claims that she was
constructively discharged from her position as a medical resident
at North Shore University Hospital because she is
Filipino.*fn1 Pursuant to Federal Rule of Civil Procedure
56, North Shore moves for summary judgment on the grounds (1)
that Reyes has failed to make out a prima facie case, and (2)
that she has failed to establish that North Shore's
non-discriminatory reasons for its actions were pretextual. For the following
reasons, the Court grants the motion.
Born in the Phillippines, Reyes immigrated to the United States
with her family in 1984 and later became a U.S. citizen. Between
1996 and 1999, she completed a three-year residency in general
psychiatry at Bronx-Lebanon Hospital Center ("Bronx-Lebanon"). As
that residency was nearing its completion, she applied for a
position as a first-year resident in North Shore's child and
adolescent psychiatry ("CAP") program. Four doctors from Bronx-Lebanon
wrote favorable letters recommending her for the position.
Reyes was interviewed by Dr. Victor Fornari ("Fornari") and two
other doctors; Fornari, who is the director of the CAP program,
was aware of Reyes' Filipino heritage when he interviewed her.
Fornari offered positions to Reyes and two others: Dr. Gianlucca
LaMonaca ("LaMonaca") and Dr. Ameer Dahar ("Dahar"); all three accepted.
Reyes began work at North Shore on July 1, 1999. On her first
day, she arrived two hours late for orientation. Dr. LaMonaca did
not attend orientation because he was on vacation in Italy; Dr. Dahar did not attend because he
was not scheduled to begin his residency until the following
Doctors at North Shore were assigned to supervise the
residents' training. Reyes' supervisors were Dr. Shirley Papilsky
("Papilsky"), Dr. Beverly Goodman ("Goodman"), Dr. Allan Stempler
("Stempler") and Dr. Paulina Loo ("Loo"); other doctors also
oversaw her work. Fornari had overall responsibility for the
During the first three months of her residency, Reyes'
supervisors voiced concerns about her time-management skills,
participation in class and clinical performance. On September 27,
1999, after meeting with her supervisors, Fornari sent Reyes a
memorandum listing the concerns:
1. Supervisors reported that you had missed
supervision with significant frequency, often without
2. That despite supervision, a number of supervisors
reported that you did not follow the recommendations
of the supervision regarding your clinical work.
3. It was reported that while completing an emergency
evaluation in the North Shore Emergency Room with an
attending, that you left before the evaluation was
completed in order to catch your bus home.
4. One supervisor reported that while you were
evaluating a case with him, you made a phone call as
if you weren't in the process of a consultation.
5. A general concern regarding your clinical style,
including poor eye contact and giggling.
6. A serious concern regarding the way you handled
the case of an adolescent girl who was contemplating
termination of pregnancy.
Fornari Aff., Ex. 2. Based on these concerns, North Shore placed Reyes on academic
probation for three months. Fornari's September 27 memorandum set
out the terms of the probation:
1. You will meet with me on a weekly basis to review
2. You will discuss your progress with each of your
supervisors on a weekly basis.
3. You will attend supervision, as well as your
classes in an organized and regular fashion. If for
some reason you need to miss a class or a
supervision, you are to inform me as well as the
4. The purpose of this corrective active plan is [to]
help you function and to evaluate your continued
participation in this training program.
Reyes' supervisors continued to report problems with her
performance to Fornari. On October 1, 1999, Reyes missed a
scheduled supervision with Papilsky; Reyes told Fornari that she
forgot about the supervision because she had trouble with time
On October 21, 1999, Loo reported that Reyes' handling of one
of her cases had resulted in an irate call from the patient's
grandmother; Loo scheduled a supervision to discuss the case, but
Reyes failed to show up. According to Loo,
[Reyes] is often late or forgets about supervision.
When she comes to supervision she often does not know
whether she is to discuss evaluations, psychopharm,
family crisis cases.
I have tried to help her organize her thoughts, and
even tell her specifically what to do in her meetings
with patients, but she seem to have tremendous
difficulty obtaining information for diagnosis.
Fornari Aff., Ex. 3.
On October 24, 1999, Goodman reported that Reyes had missed supervisions without canceling, and that she often failed to return phone calls and
pages. Regarding Reyes' performance, Goodman made the following points:
In supervision, she is unfocused, does not seem to
grasp concepts and introduces irrelevant and
She cannot follow a line of thought, process it nor
carry it out to a logical conclusion.
[T]he process of supervision does not seem to be
effective in ameliorating her deficits, given her
lack of capacity to appropriately absorb and process
the supervision and give relevant feedback.
She has many silly, giddy, inappropriate mannerisms
which are quite disconcerting.
She appears to have a significant cognitive
processing impairment which interferes with her
learning capabilities and, of course, her performance
as a child psychiatrist/therapist.
[She] lacks the usual expected competency of a
first year Child Psych[iatry] Fellow.
Fornari Aff., Ex. 4. Goodman later informed Fornari that Reyes
had failed to prepare reports on five patient consultations that
had taken place in August, September and October, 1999.
Based on these reports, Fornari decided to limit Reyes'
workload by placing a temporary moratorium on new intake
evaluations assigned to her; the problems nevertheless persisted.
On November 18, 1999, Goodman reported that she had received more
complaints regarding Reyes "than I have sum total in all the year
of supervising." Fornari Aff., Ex. 5.
Negative reports of Reyes' performance were not limited to her
supervisors. On December 10, 1999, a psychology extern wrote to
express her "difficulty and frustration in working with [Reyes] on a case that [she] referred for a
psychiatric evaluation." Fornari Aff., Ex. 5. In addition, the
Coordinator of Children's Services for the Mental Health
Association of Nassau County an organization that frequently
referred clients to North Shore wrote Fornari to complain that
Reyes had not come to work on the day of a scheduled appointment.
Fornari Aff., Ex. 6. When Fornari asked Reyes why she missed the
appointment, she told him that "it was kind of an emergency," and
that she had simply assumed that another doctor would see the
patient in her absence. Fornari Aff., ¶ 16.
In December 1999, three of Reyes' supervisors submitted formal
performance evaluations. On these evaluations, a rating of "2"
corresponded to "Needs Improvement: In general meets reasonable
expectations, but sometimes falls short." Fornari Aff., Exs. 7-9.
Reyes received an overall rating of less than 2 on each of the
three evaluations submitted.*fn3 The comments on the
evaluations reflected some improvement, particularly in the area
of punctuality, but generally expressed continued concern with
On December 23, 1999, Fornari extended Reyes' academic
probation to January 31, 2000. On January 21, 2000, Reyes' fourth
supervisor (Stempler) submitted his evaluation, giving her an
overall rating of 2; he commented that Reyes had a good command
of psychopharmacology, but that she was "not well organized" and
that supervision was "crisis management with little direction
toward comprehensive information." Fornari Aff., Ex. 12. In addition,
Goodman and Loo submitted "Resident Evaluation Forms," which are used
"if, in the opinion of his/her supervisor(s), the resident has not sufficiently demonstrated professional and personal
attributes for meeting the standards of professionalism required
for good medical/psychiatric practice." Fornari Aff., Exs. 11,
13. In those forms, Goodman and Loo identified several specific
areas in which Reyes' performance was inadequate.
At some point before Reyes' academic probation expired, Fornari
informed her that "the supervisors did not feel that [she] was
well-suited for child and adolescent psychiatry, and the clinical
performance did not improve, and that based on that, it was not
likely that [she] would pass the academic probation." Fornari
Dep. at 98. He then described various scenarios to her: "One
would be not passing probation and facing termination of
employment"; another was that "[she] did have the right to resign
if she chose to." Id. at 98-99.
On January 30, 2000 the day before Reyes' academic probation
was to expire Fornari received a letter in which Reyes offered
to submit a letter of resignation. The offer was subject to
1. A written agreement in which [North Shore] agrees
to keep confidential the particular facts and
circumstance surrounding my employment and subsequent
departure from employment.
2. [North Shore] agrees to furnish me with two good
letters of recommendation plus a positive letter of
recommendation from the Director of the training
3. Any verbal communication from [North Shore] has to
be consistent with the three letters of
recommendation mentioned above.
4. The Director of the Residency program will agree
in writing to give me six months of credit towards
completion of fourth year psychiatry residency as
mentioned in the Graduate Medical Education manual.
5. In addition, I promise not to disparage the
reputation of [North Shore]. In return, [North Shore] will not disparage
Fornari Aff., Ex. 14. Fornari informed Reyes that he would not
accept those conditions.
On January 31, 2000, Fornari received a second letter from
Reyes. In that letter, Reyes thanked Fornari for his efforts in
getting her into the CAP program and then resigned, effective
February 11, 2000. Reyes stated that she was resigning "for
personal reasons." Fornari Aff., Ex. 15.
Reyes claims that she was discriminated against on the basis of
her national origin.*fn4 In support of her claim, she points
to four incidents that she alleges demonstrate bias against Filipinos:
First, Fornari asked the husband of one of the residents in
another program to bring his toddler to one of the CAP residents'
child-development classes. Reyes could "visibly see" that the
husband, who was Filipino, was not comfortable with the request,
but felt that he couldn't refuse. Reyes Dep. at 36. According to
Reyes, the husband's discomfort was "cultural" and Fornari was
not sensitive to it. Id.
Second, Fornari told the CAP residents about a Filipino boy he
had evaluated as a resident twenty years ago. The boy was born in
the Phillippines; when he was three, his father came to the
United States and left him to be raised by his paternal grandparents. When he was 10 or 11, his father sent for him. After arriving in
the United States, the boy became depressed and had suicidal
thoughts. Fornari opined that the boy was depressed because the
psychological attachments he had formed with his grandparents had
been broken; he recommended that the boy be returned to the
Phillippines. Reyes felt that Fornari's recommendation was "rash"
and "insensitive" because, "[in] the Filipino culture, it's
normal for a little child to be raised by a grandmother while the
parents are establishing themselves." Reyes Dep. at 37-38.
Third, Fornari suggested that Reyes move in with Dahar, her
fellow resident in the CAP program. According to Fornari, he made
the suggestion because he understood that Reyes was considering
looking for an apartment closer to North Shore and Dahar was
looking to share an apartment. Reyes, who is Catholic, was
offended that Fornari would suggest that she live with a man she
was not related to. According to Reyes, Fornari also said,
"[A]fter all, he's Pakistani and you're Filipino, what's the
difference?" Reyes Dep. at 46.
Fourth, according to Reyes, Fornari, Goodman and "maybe"
Papilsky referred to her as having a "blunted affect." Reyes Dep.
at 41. Medically speaking, a blunted affect (also known as a
"flat affect") is a "severe reduction in emotional
expressiveness," often associated with depression and
visited August 5, 2005). Reyes, however, felt that the reference
was "culturally insensitive" to Filipinos because "[m]ost
oriental people have a round face and sometimes the expression is
sort of not showing a lot of emotion." Reyes Dep. at 44-45. Fornari denies that Reyes' national origin played any part in
his decisions and actions regarding her residency. He points out
that the year before Reyes began her residency, Dr. Caroline Tan
another doctor of Filipino descent successfully completed her
residency in the CAP program.
Reyes' Title VII claim of national-origin discrimination is
analyzed under the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); see
also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). First, she must establish a prima facie case of
unlawful employment discrimination by showing that she (1) was a
member of a protected class, (2) was qualified for her position,
and (3) suffered an adverse employment action (4) under
circumstances giving rise to an inference of discrimination. See
McDonnell Douglas, 411 U.S. at 802; Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93 (2d Cir. 2001). The Second Circuit has
described this burden as "minimal," Byrnie, 243 F.3d at 101,
and "de minimis." Abdu-Brisson v. Delta Air Lines, Inc.,
239 F.3d 456, 467 (2d Cir. 2001).
The adverse employment action alleged here is constructive
discharge. "An employee is constructively discharged when [her]
employer, rather than discharging [her] directly, intentionally
creates a work atmosphere so intolerable that [she] is forced to
quit involuntarily," Terry v. Ashcroft, 336 F.3d 128, 151-52
(2d Cir. 2003); working conditions are "intolerable" if they are
such that "a reasonable person in the employee's shoes would have
felt compelled to resign." Id. at 152.
If a prima facie case has been established, "the burden
shifts to the defendant, which is required to offer a legitimate, non-discriminatory
rationale for its actions." Id. at 138. If the defendant does
so, then "the McDonnell Douglas framework with its
presumptions and burdens disappear[s], and the sole remaining
issue [is] discrimination vel non." Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 148 (2000) (citations and internal
quotation marks omitted).
Thus, "once the defendant has made a showing of a neutral
reason for the complained of action, `to defeat summary judgment
. . . the plaintiff's admissible evidence must show circumstances
that would be sufficient to permit a rational finder of fact to
infer that the defendant's employment decision was more likely
than not based in whole or in part on discrimination.'" Terry,
336 F.3d at 138 (quoting Stern v. Trustees of Columbia Univ.,
131 F.3d 305 (2d Cir. 1997)). In other words, the plaintiff "must
be afforded the `opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination.'" Reeves, 530 U.S. at 143 (quoting Burdine,
450 U.S. at 253).
The court must "examin[e] the entire record to determine
whether the plaintiff could satisfy [her] `ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff.'" Schnabel v. Abramson,
232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves,
530 U.S. at 148). Whether the plaintiff can satisfy that burden in a
particular case depends on a number of factors, including "the
strength of the plaintiff's prima facie case, the probative
value of the proof that the employer's explanation is false, and
any other evidence that supports the employer's case and that
properly may be considered on a motion for judgment as a matter
of law." Reeves, 530 U.S. at 148-49 A Title VII claim is subject to the usual rules regarding
summary judgment, under which the Court must "resolve all
ambiguities and draw all factual inferences in favor of the
nonmoving party." Savino v. City of New York, 331 F.3d 63, 71
(2d Cir. 2003) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)). However, conclusory statements, conjecture and
other types of unsupported assertions are not sufficient to
defeat an otherwise proper motion for summary judgment. See
Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14
(2d Cir. 1995).
As the Second Circuit has recently observed, summary judgment
in a Title VII case should be granted with caution "because
`smoking gun' evidence of discriminatory intent is rare and most
often must be inferred." Forsyth v. Federation Employment &
Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005). Moreover,
since Reyes is proceeding pro se, the Court is mindful of its
obligation to liberally construe her submissions to raise the
strongest arguments that they suggest. See id. Nevertheless,
summary judgment is appropriate even in a Title VII action by a
pro se plaintiff when "the moving party has submitted facts
sufficient to show that the non-moving party's claim has no
merit, and the non-moving party's attempts to rebut the movant's
facts consist only of `mere allegations or denials' of the facts
asserted by the movant." Id. at 570 (quoting Fed.R.Civ.P.
I. Prima Facie Case
It is undisputed that Reyes is a member of a protected class.
The Court also assumes, but does not hold, that Reyes was
qualified for her position and suffered an adverse employment
action in the form of a constructive discharge. Reyes nevertheless fails to make out a prima facie case under
Title VII because she cannot establish that her constructive
discharge occurred in circumstances giving rise to an inference
of discrimination on the basis of her national origin. Other than
conclusory allegations, she relies on the four incidents
described supra to show that Fornari was biased against
Filipinos; however, those incidents are insufficient to give rise
to an inference that she was constructively discharged because
she is Filipino.*fn5 For example, that Fornari asked the
husband of a Filipino couple to bring their child to a
child-development class evidences no bias against Filipinos; it
is simply irrelevant to the issue. There is, moreover, no
evidence that Fornari's 20-year-old recommendation to return a
depressed Filipino boy to his grandparents was motivated by
anti-Filipino animus, as opposed to purely professional judgment.
Similarly, there is no indication that Reyes' supervisors'
comments that she had a "blunted affect" had anything to do with
her national origin.
Fornari's alleged comment that "he's Pakistani and you're
Filipino, what's the difference?" could arguably be construed as
demonstrating a bias against ethnic minorities in general (or, as
Reyes claims, against Asians in particular).*fn6 It is,
however, a single stray remark having no apparent connection to
Reyes' participation in the CAP program; "the stray remarks of a decision-maker, without more,
cannot prove a claim of employment discrimination."
Abdu-Brisson, 239 F.3d at 468; see also Danzer v. Norden
Sys., 151 F.3d 50, 56 (2d Cir. 1998) (both citing Woroski v.
Nashua Corp., 31 F.3d 105 (2d Cir. 1994), abrogated on other
grounds by Schnabel, 232 F.3d at 90).*fn7 Apart from this
remark, Fornari's suggestion that Reyes share an apartment with Dahar
demonstrates no bias against Filipinos (or any other nationality).
Even assuming that Reyes could make out a prima facie case,
her Title VII claim would still fail. North Shore has come
forward with a non-discriminatory reason justifying its
employment decisions: Reyes' performance. Thus, the Court must
"examin[e] the entire record to determine whether the plaintiff
could satisfy [her] `ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff.'" Schnabel, 232 F.3d at 90 (quoting Reeves,
530 U.S. at 148).
As previously explained, Reyes' claim is based on four
incidents, only one of which even arguably evidences unlawful
bias. Even if that incident were enough to make out a prima
facie case, her claim would be extremely weak.
In response, North Shore has submitted a lengthy, detailed and
well-documented chronology of problems with Reyes' performance
that easily justifies its employment decisions. In addition, it
points out that another Filipino resident successfully completed the CAP program under Fornari's auspices.
Although Reyes claims that the performance issues catalogued by
North Shore were a pretext for unlawful discrimination, she
offers no adequate factual support for that claim. Her reliance
on the previously described incidents involving Fornari is
unavailing; most if not all of the concerns about Reyes'
performance were initially voiced by individuals other than
Fornari. Reyes offers no evidence suggesting that those
individuals harbored any anti-Filipino bias.*fn8 Reyes
claims that those expressing concerns about her performance were
part of a conspiracy led by Fornari, but there is absolutely no
evidence to support such a claim.
Reyes advances several other arguments in support of her claim
of pretext. First, she argues that the lack of any complaints
prior to September 24, 1999, supports her claim. This argument
misstates the record; Fornari's memorandum detailing the issues
addressed at the September 24 supervisors' meeting expressly
notes that concerns had been expressed "[d]uring the past three
months." Fornari Aff., Ex. 2.
Reyes next argues that the favorable letters of recommendation
from Bronx-Lebanon "paint the exact opposite picture of
plaintiff, her strengths, and performance characterizations than
those at [North Shore]." Aff. in Opp., ¶ 9. She does not,
however, offer any evidence to refute the specific factual bases
for the concerns about her performance at North Shore; in the
absence of any such evidence, the fact that Bronx-Lebanon and
North Shore held different opinions about the quality of her
performance is immaterial.
Finally, Reyes argues that Fornari's decision to place her on
academic probation instead of forbidding her from treating
patients or terminating her outright supports her claim of
pretext. Even taken in the light most favorable to Reyes,
however, this fact suggests nothing more than a professional
judgment about the appropriate remedy given the nature of the
concerns about her performance.
In sum, no reasonable fact-finder could conclude that North Shore
intentionally discriminated against Reyes because of her national origin.
North Shore is, therefore, entitled to summary judgment.
North Shore's motion for summary judgment is granted and Reyes'
complaint is dismissed.