United States District Court, S.D. New York
August 19, 2005.
OLUDOTUN AKINDE, Plaintiff,
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.
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
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
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
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.
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)
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
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.
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