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AKINDE v. BRONX-LEBANON HOSPITAL CENTER

United States District Court, S.D. New York


August 19, 2005.

OLUDOTUN AKINDE, Plaintiff,
v.
BRONX-LEBANON HOSPITAL CENTER, Defendant.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

This litigation concerns defendant Bronx-Lebanon Hospital Center's decision not to renew plaintiff Oludotun Akinde's contract for the final year of his residency. Akinde, who is a "black African-American male of Nigerian origin," (Pl.'s Response to Def.'s Rule 56.1 Statement ¶ 1), claims that Bronx-Lebanon Hospital Center declined to renew his contract in retaliation for Akinde having reported an incident in which a co-worker allegedly demeaned him on the basis of his race. Akinde also claims that the hospital subjected him to a hostile work environment during the first two years of his residency.

Plaintiff was originally represented by an attorney in this action, but is now proceeding pro se. Discovery proceedings have concluded and the hospital has now moved for summary judgment dismissing Akinde's claims. As set forth more fully below, the hospital's motion is granted because it has proffered unrebutted non-discriminatory reasons for declining to renew Akinde's contract and because Akinde has failed to offer any proof in support of his hostile work environment claim.

  I. Facts

  Akinde claims that at one point during the first month of his residency at the hospital, Mary Anne Carling, a co-worker, made disparaging racial comments to him, which he later reported to his physician advisor. (Pl.'s Statement of Disputed Material Facts ¶¶ 2-3). This report, Akinde asserts, touched off a series of negative performance reviews and further racial harassment that culminated two years later in the hospital's decision not to renew Akinde's contract for the third and final year of his residency. (Timeline, Pl.'s Ex. C). Akinde, however, has not provided any evidence to substantiate his allegations.

  The hospital maintains that it investigated Akinde's claims "that his supervisors called him racially offensive names and conspired against him" and found those claims to be lacking in merit. (Def.'s Rule 56.1 Statement ¶ 9). The hospital asserts that it declined to renew Akinde's contract because he "exhibited serious performance and behavioral problems" beginning in March of 2001. (Id. ¶ 4). In support of its contention, the hospital points to incidents such as the following: Akinde characterized a patient's eyesight as "fine" when in fact the patient was totally blind, (Id.; Resident Evaluation by Dr. Joseph Sacco dated Mar. 20, 2002 at 1, Ex. C to Def.'s Rule 56.1 Statement); he performed a "vaginal examination and swab on a six-year old child without a nurse present" even though the child's condition was "totally normal," (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated March 16, 2002, Ex. C to Def.'s Rule 56.1 Statement); he fell asleep "while monitoring a patient in the end stages of labor," (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Julie Denney to Dr. Fabienne Daguilh dated Mar. 12, 2001 at 1, Ex. C to Def.'s Rule 56.1 Statement); and he provided "grossly inaccurate information concerning patients' medical histories and physical findings after examination. . . ." (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Julie Denney to Dr. Fabienne Daguilh dated Mar. 12, 2001 at 1, Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 24, 2001 & Resident Evaluation by Dr. Joseph Sacco dated Mar. 20, 2002 at 1, Ex. C to Def.'s Rule 56.1 Statement). In addition, two of Akinde's supervising doctors filed evaluations in which they described a pattern of lying by Akinde. For example, Dr. Melanie Canon wrote that Akinde "lied . . . on several occasions" and that she did "not trust his histories or clinical plans. . . ." (Def.'s Rule 56.1 Statement ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 30, 2001, Ex. C to Def.'s Rule 56.1 Statement). These concerns caused Dr. Canon to "worr[y] about patient safety." (Def.'s Rule 56.1 Statement ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 30, 2001, Ex. C to Def.'s Rule 56.1 Statement). Dr. Joseph Sacco reported instances of Akinde's "lying" to him about "physical exam findings that he had not actually elicited" but had documented nonetheless. (Resident Evaluation by Dr. Joseph Sacco dated Apr. 30, 2002, Ex. C to Def.'s Rule 56.1 Statement).

  The hospital believed that Akinde's "performance problems" could stem from "a health or substance problem"; "in an effort to assist him to remain in the [residency] program" the hospital referred Akinde to the Medical Society of the State of New York's Committee for Physician's Health in May of 2001. (Id. ¶ 5). That committee is a "clinical program that permits doctors to receive treatment rather than be disciplined." (Id.; Decl. of Dr. James Mumford ¶ 2, Ex. K to Def.'s Rule 56.1 Statement). If the committee accepts a doctor into its program, the committee "then prescribes a course of treatment" that the doctor must follow; the committee may direct a doctor to cease practicing until he complies with the prescribed treatment. (Decl. of Dr. James Mumford ¶ 2, Ex. K to Def.'s Rule 56.1 Statement). The committee prescribed treatment for Akinde "including psychiatric evaluations, regular urine tests, and medication. . . ." (Def.'s Rule 56.1 Statement ¶ 6).

  Despite this assistance, Akinde's performance further deteriorated and his supervisors again evaluated him critically. Dr. Canon wrote that, "I can't be medically responsible for his practice. . . . The risks and consequences are immeasurable and innumerable." (Id. ¶ 7; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002, Ex. C to Def.'s Rule 56.1 Statement). Dr. Canon concluded that given Akinde's "consistent history of lying, revising stories and inappropriate practice, I must be in the exam room supervising him during every patient interaction . . . [I]t is necessary for the safeguard of our patients. . . ." (Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002, Ex. C to Def.'s Rule 56.1 Statement).

  Similarly, Dr. Sacco wrote that, "it continues to be my belief that allowing him to provide unsupervised medical care for our patients will expose them to a significant risk of untoward outcomes." (Def.'s Rule 56.1 Statement ¶ 7; Resident Evaluation by Dr. Joseph Sacco dated Jan. 30, 2002, Ex. C to Def.'s Rule 56.1 Statement). The hospital concluded that Akinde "had serious deficiencies in medical judgment which rose to a level that endangered the patients placed in his care" and had "demonstrated a marked lack of veracity on several occasions. . . ." (Def.'s Rule 56.1 Statement ¶ 8). Akinde asserts that doctors Canon, Sacco, and Shaw gave him these negative evaluations as part of an orchestrated campaign of retaliation for his report of Carling's alleged comments; however, as set forth above, he has provided no evidence to support his conclusory allegations.

  Eventually the hospital determined that it could no longer allow Akinde to practice and in November of 2001 the hospital informed him that it would not renew his contract for his third year of residency. (Id. ¶ 10). Through his union, Akinde filed a grievance with the hospital regarding that decision, and invoked the hospital's three-step grievance procedure. (Id. ¶¶ 10-11). The hospital held two meetings with Akinde and upheld its decision after each meeting. (Letter from Neil E. Gonzalvo to Dr. Milton A. Gumbs dated Dec. 21, 2001 & Letter from Bruce Soloway to Neil E. Gonzalvo dated Jan. 22, 2002, Ex. H to Def.'s Rule 56.1 Statement). At Akinde's request, the hospital then convened a subcommittee of the "Medical Executive Committee" to hear Akinde's grievance for a third time. (Letter from Dr. Vellore Parithivel to Oludotun Akinde dated June 10, 2002, Ex. H to Def.'s Rule 56.1 Statement). The subcommittee "reviewed Dr. Akinde's evaluations and multiple memoranda from faculty members that described incidents and concerns with Dr. Akinde's performance," and took testimony from the director of Akinde's residency program, Akinde's psychiatrist, and Akinde himself, who was represented by the union. (Report and Recommendation of Medical Executive Committee at 1-2, Ex. H to Def.'s Rule 56.1 Statement).

  Before making its decision, the subcommittee scheduled a second hearing at which it took testimony from Dr. Sacco, Dr. Canon, chief resident Dr. Olawale Morafa, and Carling. (Id. at 3). Based upon that evidence, the subcommittee determined that Akinde's "deficiencies . . . rise to a level that endangers patient care" and thus "unanimously recommends that the non-renewal decision be sustained." (Id.).

  The hospital did not renew Akinde's contract when it expired in July of 2002. Two months later, Akinde filed a charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC investigated Akinde's charges and concluded that the information he provided "fails to indicate that a violation has occurred" and issued a right to sue letter. (Letter to Oludotun Akinde dated May 30, 2003, Ex. B to Def.'s Rule 56.1 Statement). In the letter accompanying the right to sue letter, the EEOC noted the diversity of the hospital's residency program, which included residents who were "Indian, Mexican, Egyptian, Romanian, Colombian, Bangladeshian, Georgian, Iranian, Ecuadorian, American, Peruvian, Syrian, Pakistani and (most significantly) other Nigerians." (Id. at 1; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement). In fact, all of the residents in Akinde's class were non-white and eighty percent were non-American. (Def.'s Rule 56.1 Statement ¶ 3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement).

  In addition, another black Nigerian resident in Akinde's class was named chief resident — the program's highest designation — for 2002-2003, the same year that Akinde was not invited back. (Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement; Letter from EEOC to Oludotun Akinde dated May 30, 2003 at 1, Ex. B to Def.'s Rule 56.1 Statement; Def.'s Rule 56.1 Statement ¶ 2-3). Additionally, with respect to residency classes for the years 2000-2001 and 2001-2002, a black Nigerian resident was named chief resident each year. (Def.'s Rule 56.1 Statement ¶ 2-3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement).

  In August of 2003 Akinde filed this litigation against the hospital, alleging claims of retaliation and hostile work environment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and New York Executive Law section 296.*fn1 As noted above, the hospital has now moved for summary judgment seeking dismissal of plaintiff's claims.

  II. Discussion

  A. The Summary Judgment Standard

  Summary judgment is appropriate only if the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995); LaFond v. Gen. Physics Serv., Corp., 50 F.3d 165, 171 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); see LaFond, 50 F.3d at 171. "However, even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment," Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), and "instead must offer some hard evidence" in support of his factual assertions, Golden Pacific Bancorp. v. F.D.I.C., 375 F.3d 196, 200 (2d Cir. 2004) (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)). In determining when to grant summary judgment in employment discrimination claims, the "identical standards" are used, whether the claim is brought pursuant to Title VII of the Civil Rights Act of 1964 or section 296 of the New York Executive Law. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000).

  B. The Standards Governing Retaliation Claims

  Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee because she has "opposed any practice made an unlawful employment practice by this subchapter," such as racial discrimination. 42 U.S.C. § 2000e-3(a) (2003). In similar fashion, New York Executive Law section 296 makes it "unlawful" for an employer to "discriminate against any person because he or she has opposed any practices forbidden under this article. . . ." N.Y. Exec. L. § 296(e) (McKinney's 2005).

  Akinde's state and federal retaliation claims are both evaluated pursuant to the tripartite burden shifting framework established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999). "In the context of a motion for summary judgment, the plaintiff must first demonstrate a prima facie case of retaliation. . . ." Richardson v. Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999); see also Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). In order to establish a prima facie case, the plaintiff must demonstrate "(1) participation in a protected activity that is known to the defendant, (2) an employment decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse employment decision." Richardson, 180 F.3d at 443; see also Cifra, 252 F.3d at 216; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).

  With respect to the second element, an employment action "disadvantag[es] the plaintiff" if it constitutes "a material? . . . change in the terms and conditions of employment." Sanders v. New York City Human Resources, 361 F.3d 749, 755 (2d Cir. 2004) (internal quotation marks omitted). To meet this standard, "a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities," such as "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguishable title, a material loss of benefits, [or] significantly diminished material responsibilities. . . ." Id. (internal quotation marks omitted). However, "[l]esser actions such as negative employment evaluation letters may also be considered adverse," Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), if there is some "proof that [the] evaluation had [an] effect on the terms and conditions of [the plaintiff's] employment," Sanders, 361 F.3d at 756.

  A plaintiff may establish the requisite causal connection by showing "that the protected activity was followed closely by discriminatory treatment." DeCintio v. Westchester County Med.Ctr., 821 F.2d 111, 115 (2d Cir. 1987); see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991).

  A plaintiff may also show causation "through other evidence such as disparate treatment of fellow employees who engaged in similar conduct," or through "evidence of a retaliatory animus directed against plaintiff by defendant." DeCintio, 821 F.2d at 115; see also Johnson, 931 F.2d at 207.

  Once the plaintiff has established a prima facie case of retaliation, the defendant "has the burden of pointing to evidence that there was a legitimate, nonretaliatory reason for the complained of action." Richardson, 180 F.3d at 443; see also Cifra, 252 F.3d at 216; Quinn, 159 F.3d at 768. If the defendant meets that burden, the plaintiff must then "point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Cifra, 252 F.3d at 216; see also Richardson, 180 F.3d at 443; Quinn, 159 F.3d at 768.

  C. The Standards Governing Hostile Work Environment Claims

  To sustain a claim for hostile work environment pursuant to Title VII or New York State Executive Law section 296, a plaintiff must demonstrate "(1) that his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Schwapp, 118 F.3d at 110 (internal quotation marks, citations, and brackets omitted); Weinstock, 224 F.3d at 42 n. 1. "The first element of a hostile work environment claim has both an objective and subjective component: the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Petrosino v. Bell Atlantic, 385 F.3d 210, 221 (2d Cir. 2004) (internal quotation marks and citations omitted).

  With respect to the objective aspect of this element, the Court must examine "all the circumstances" in order to determine whether an environment is hostile or abusive. Schwapp, 118 F.3d at 110 (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "[W]hether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs. . . ." Schwapp, 118 F.3d at 110-11 (internal quotation marks, citations, and brackets omitted). "For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity." Id. at 110 (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986)) (internal quotation marks omitted). Specifically, "instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Schwapp, 118 F.3d at 110 (internal quotation marks, citations, and brackets omitted).

  D. Akinde's Retaliation Claims Fail

  Even assuming, for the purposes of this motion, that Akinde has demonstrated a causal connection between his report of Carling's alleged remarks and the hospital's decision not to renew his contract, the hospital is entitled to summary judgment on Akinde's retaliation claims because it has proffered ample evidence of a legitimate basis for its decision and Akinde has offered no evidence whatsoever showing that the hospital's reasons are pretextual.*fn2

  Specifically, the hospital points to numerous examples, thoroughly documented by Akinde's supervising physicians, of Akinde's "sub-standard performance," (Resident Evaluation by Dr. Joseph Sacco dated Sept. 25, 2001, Ex. C to Def.'s Rule 56.1 Statement; Def.'s Rule 56.1 Statement ¶ 4), as well as his "questionable honesty" (Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated July 30, 2001, Ex. C to Def.'s Rule 56.1 Statement). Throughout the course of Akinde's two-year tenure as a resident, at least two different supervising doctors as well as other co-workers documented his serious mistakes or lapses of judgment in patient care, such as describing a blind patient's eyesight as "fine," (Def.'s Rule 56.1 Statement ¶ 4; Resident Evaluation by Dr. Joseph Sacco dated Mar. 20, 2002 at 1, Ex. C to Def.'s Rule 56.1 Statement), performing an unsupervised and unnecessary vaginal examination on a six-year old child, (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated March 16, 2002, Ex. C to Def.'s Rule 56.1 Statement), and falling asleep when monitoring a patient in the final stages of labor (Def.'s Rule 56.1 Statement ¶ 4; Memorandum from Julie Denney to Dr. Fabienne Daguilh dated Mar. 12, 2001 at 1, Ex. C to Def.'s Rule 56.1 Statement).

  Moreover, at least two different supervisors described Akinde's "consistent history of lying," (Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002 & Resident Evaluation by Dr. Joseph Sacco dated Apr. 30, 2002, Ex. C to Def.'s Rule 56.1 Statement); one wrote that Akinde's practice of medicine presented "risks and consequences [that] are immeasurable and innumerable" and concluded that he was "too dangerous . . . for the patients." (Memorandum from Dr. Melanie Canon to Dr. Jim Mumford dated Mar. 16, 2002, Ex. C to Def.'s Rule 56.1 Statement). This evidence supports the conclusion that the hospital had a legitimate, non-discriminatory basis for declining to employ Akinde for a third year.

  In response, Akinde asserts in conclusory fashion that the hospital engaged in a coordinated campaign against him consisting of racial slurs, fabricated performance evaluations, and forced psychiatric treatment, but points to not a single piece of evidence supporting his claims. "Such conclusory allegations . . . are insufficient to support the proposition advanced or to show the existence of a genuine issue to be tried." Patterson, 375 F.3d at 222; see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).

  Indeed, the evidence suggests that there was no campaign of discrimination based on race or national origin: all of the residents in Akinde's class were non-white, eighty percent of the residents were non-American, and collectively they represented a host of different nationalities. (Def.'s Rule 56.1 Statement ¶ 2-3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement). In addition, in regard to national origin discrimination, the hospital promoted other Nigerians to the position of chief resident in the years 2000-2001, 2001-2002, and 2002-2003. (Def.'s Rule 56.1 Statement ¶ 2-3; Racial and National Origin Demographics of Family Practice Residency Program, Ex. D to Def.'s Rule 56.1 Statement). Because Akinde has presented no evidence that the hospital's reasons are pretextual, its motion with respect to Akinde's retaliation claims should be granted.

  E. Akinde's Hostile Work Environment Claims Fail

  Akinde has offered no evidence showing that he was subjected to a hostile work environment; his submissions in response to the hospital's summary judgment motion consist entirely of unsubstantiated assertions unaccompanied by any corroborating material. (See Timeline, Pl.'s Ex. C). Mere conclusory assertions are insufficient to defeat this motion. See Coudert v. Janney Montgomery Scott, LLC, No. 03 Cv. 324, 2005 WL 1563325 at *11-12 (D. Conn. July 1, 2005); Phipps v. Comprehensive Community Development Corp., No. 00 Cv. 6063, 2005 WL 287413 at *22 (S.D.N.Y. Feb. 4, 2005). Because Akinde has offered no proof upon which a rational juror could find in his favor, the hospital's motion with respect to Akinde's hostile work environment claims should be granted. III. Conclusion

  Accordingly, for the reasons set forth above, the Court grants defendant's motion for summary judgment. The Clerk of Court is directed to enter judgment dismissing the complaint.

  SO ORDERED.

20050819

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