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D'Cunha v. New York Hospital Medical Center of Queens

March 3, 2006


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge


Pro se plaintiff, Agnes S.P. D'Cunha, brought this action against the defendant alleging employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. § 2000e et seq. Because plaintiff is a pro se litigant, the Court, in deciding this motion, has construed plaintiff's papers broadly, interpreting them to raise the strongest arguments suggested. Weixel v. Bd. of Educ. of the City of New York,287 F.3d 138, 146 (2d Cir. 2002). For the reasons set forth below, defendant's summary judgment motion is granted in all respects.

I. Facts

Pro se plaintiff, Agnes S.P. D'Cunha, is a registered nurse of Asian Indian descent. (Pl.'s Ex. 1 at 3.) She is employed by defendant New York Hospital Medical Center of Queens ("NYHQ"). (D'Cunha Dep. at 41, 55.) In August 2001, plaintiff worked in NYHQ's Operating Room ("OR") and was involved in a surgery at NYHQ wherein an item was left inside a patient, necessitating re-surgery. (D'Cunha Dep. at 138, 166.) In September 2001, plaintiff was disqualified from working in the OR. (Ackerman Aff. Ex. L at 1.) Shortly thereafter, plaintiff was transferred from the OR to NYHQ's surgical unit. (D'Cunha Dep. at 188-91.) Plaintiff alleges that the decision to transfer her to the surgical unit constitutes discrimination based upon her race and national origin in violation of Title VII. Plaintiff further alleges that NYHQ engaged in retaliation based upon her complaints following the transfer.

A. Operating Room Procedure

Many professionals participate in a single surgical procedure, including a circulating nurse and a scrub nurse. The circulating and scrub nurses are responsible for maintaining a "count"*fn1 of all sponges, sharps, softs,*fn2 and other surgical instruments used by the surgeon during an operation. (D'Cunha Dep. at 93-95; NYHQ Count Policy at ¶1.0.) The nurses perform such "counts" to ensure that foreign objects are not left in the patient after surgery is complete. (D'Cunha Dep. at 91.) The physician performing the surgery is not responsible for performing these "counts," but rather relies upon the nurses to do so. (Id. at 94-95.)

NYHQ's "Count Policy" enumerates specific mandatory "count" procedures to ensure that no items are unaccounted for at the end of surgery. (Count Policy at ¶ 1.0; D'Cunha Dep. at 83.) According to the "Count Policy," three "counts" must be conducted during an operation. (Id. at ¶ 4.6.) The initial count is conducted to "provide the baseline for subsequent counts." (Id. at ¶4.2.) The next count is performed immediately prior to closing the surgical incision. (Id. at ¶ 4.7.) The final count is performed at the end of the surgical procedure. (Id.) During each count, the scrub nurse audibly counts and separates each item while the circulating nurse visually supervises the "count" of each item. (Id. ¶ 4.5.) This procedure ensures patient safety because any "unintended retention of a foreign substance in the [patient's] body after surgery may cause physical damage to the patient." (Count Policy at ¶ 4.4.)

A. The August 25, 2001 Miscount Incident

On August 25, 2001, plaintiff worked as the scrub nurse during an operation of a patient who suffered a stab wound to the abdomen ("August 25 Operation"). (D'Cunha Dep. at 138, 148.) During this surgery, Karen Knizewski, R.N. ("Nurse Knizewski") served as the circulating nurse. (Id. at 145.) When plaintiff arrived in the OR, the initial lap pad*fn3 "count" had already been conducted by Nurse Knizewski and Nurse Sun Lee. (Id. at 142, 149.) Nurse Lee was the nurse "in charge" during the operation. (Id.) Plaintiff contends that she did not verify the lap pad "count" accuracy because two nurses had performed the initial count. (Id. at 153.) Following the surgery, Nurse Knizewski and plaintiff performed the second and third counts. (Id. at 162.) However, during the second and third counts, plaintiff did not visually observe Nurse Knizewski count each lap pad used during the surgery. ("August 25 Miscount Incident") (Id. at 162-64.)

Three days after the August 25 Miscount Incident, the patient became very ill. (D'Cunha Dep. at 163-64; Ackerman Aff. at ¶ 9; Cataldo Aff. at ¶ 3.) The patient was placed in NYHQ's surgical intensive care unit because he developed acute respiratory distress syndrome and was suffering organ failure. (Cataldo Aff. at ¶ 3; D'Cunha Dep. at 164-65.) A cat-scan of the patient revealed that a lap pad had been left in the patient during the August 25 Operation. (Cataldo Aff. at ¶ 3; D'Cunha Dep. at 169.) Therefore, reoperation was necessary to remove the lap pad. (Cataldo Aff. at ¶ 4; D'Cunha Dep. at 166.)

B. Plaintiff's Disciplinary Record is Dissimilar from Nurse Knizewski's Record

Plaintiff's disciplinary record reveals that other than the August 25 Miscount Incident, plaintiff was involved in previous operations that required reoperation. In June 1993, plaintiff served as a scrub nurse during an operation where an unsterile cable was inserted into a patient. (Ackerman Aff. Ex. F; D'Cunha Dep. at 113-14.) Reoperation was necessary to remove the cable. (D'Cunha Dep. at 115.) Plaintiff received a written warning, stating that "further occurrence would lead to suspension or termination." (Ackerman Aff. Ex. F.) In December 1997, plaintiff served as the circulating nurse during an operation when an incorrect instrument "count" was recorded, resulting in a mammary clip being retained in the patient. (Ackerman Aff. Ex. G; D'Cunha Dep. at 122.) Again, reoperation was necessary to retrieve the clip. (Ackerman Aff. Ex. G; D'Cunha Dep. at 122.) In lieu of suspension, plaintiff received a second written warning. She was further required to review NYHQ's Count Policy and had to be supervised on her "count" procedure during three future operations. (Ackerman Aff. Ex. G; D'Cunha Dep. at 122-23.)

Plaintiff received numerous warnings for various other errors committed on the job. In July 1995, plaintiff received a verbal warning regarding a misplaced and unlabeled surgical pathology specimen. (Ackerman Aff. Ex. H; D'Cunha Dep. at 119.) In April 1998, plaintiff received a second verbal warning because plaintiff failed to complete a nursing assessment form and failed to obtain complete patient documentation. (Ackerman Aff. Ex. I.) In December 1999, plaintiff received a written warning for failing to properly refrigerate a specimen. (Ackerman Aff. Ex. J; D'Cunha Dep. at 132-33.) Moreover, plaintiff received a third verbal warning in August 2001 regarding sick time abuse and "excessive absent[eeism]." (Ackerman Aff. Ex. K; D'Cunha Dep. at 73-74, 134.)

In contrast, Nurse Knizewski only received one verbal warning, for medication error, prior to the August 25 Miscount Incident. (Ackerman Aff. Ex. M.) Nurse Knizewski was not involved in any other operations requiring reoperation due to her misconduct. (Ackerman Aff. at ¶ 22.) C. Discipline Imposed on Plaintiff and Nurse Knizewski Following the August 25 Operation, the Clinical Director of Nursing, Perioperative Services, Nancy Ackerman, R.N. ("Nurse Ackerman"), instructed the OR nurse manager, Karen Cataldo, R.N. ("Nurse Cataldo"),*fn4 to investigate and determine how the lap pad was retained in the patient during the August 25 Operation. (Ackerman Aff. at ¶¶ 1, 10-13; Cataldo Aff. at ¶ 6.) Plaintiff and Nurse Knizewski were suspended indefinitely pending the outcome of NYHQ's investigation. (Ackerman Aff. Ex. C at 1; Ackerman Aff. Ex. D at 1; D'Cunha Dep. at 180-82.) During an investigative meeting with Nurse Cataldo, Nurse Knizewski acknowledged that she and plaintiff deviated from the NYHQ Count Policy during the August 25 Operation. (Cataldo Aff. at ¶ 7.) However, plaintiff "was unwilling to accept any responsibility for the presence of the lap pad in the patient." (Id. at ¶ 9.) After a full investigation, NYHQ determined that both plaintiff and Nurse Knizewski were responsible for the miscount that resulted in the lap pad being left in the patient. (Ackerman Aff. at ¶ 14; Ackerman Dep. at 12, 14, 22; Cataldo Aff. at ¶ 11.) Based on Nurse Ackerman's review of each nurse's personnel files, performance evaluations, and prior disciplinary records, she determined that serious disciplinary action was appropriate because plaintiff and Nurse Knizewski engaged in unsafe nursing practices and violated NYHQ's policies and procedures. (Ackerman Aff. at ¶ 13-23.) Nurses Ackerman and Cataldo were concerned that plaintiff presented an OR patient safety risk if she were allowed to continue working as an OR nurse and "that [the] liability and risk was too much to assume." (Ackerman Dep. at 36; Cataldo Dep. at 51-53; D'Cunha Dep. at 244.)

Nurse Ackerman considered various forms of discipline as a result of plaintiff's misconduct. (Ackerman Aff. at ¶ 18-19.) Initially, Nurse Ackerman wanted to terminate plaintiff because plaintiff had previously received a total of seven warnings (four written and three verbal warnings), three of which were related to misconduct that required patient reoperation. (Ackerman Aff. at ¶ 18; Ackerman Dep. at 36.) However, in lieu of termination, plaintiff's indefinite suspension was converted to an eighteen-day suspension for poor performance and "failure to comply with AORN*fn5 and NYHQ standards of practice and standards of care." (Ackerman Aff. Ex. L; Ackerman Aff. at ¶ 19; D'Cunha Dep. at 184, 187.) NYHQ also disqualified plaintiff from working in the OR. (D'Cunha Dep. at 184-88.) Subsequently, plaintiff was transferred to NYHQ's surgical department where she continued working as a registered nurse. (D'Cunha Dep. at 188-91.) Although plaintiff was transferred to the surgical department, her shift, base salary, rate of pay, and benefits remained the same. (Id. at 184, 189.) However, she is no longer eligible for additional on-call pay ordinarily given to OR nurses as compensation for the inconvenience of being called into the OR at any time. (Id. at 189-90.) Thus, plaintiff's annual income was reduced by roughly $20,000.00. (See Pl.'s Ex. 35; D'Cunha Dep. at 189-90.)

After plaintiff's transfer to NYHQ's surgical department, NYHQ reported plaintiff's involvement in the August 2001 Miscount Incident to the New York State Department of Education's Office of Professional Discipline ("OPD"). (Ackerman Aff. Ex. O.) As a result of a separate investigation conducted by OPD, plaintiff was charged with "professional misconduct" in the August 25 Miscount Incident for "practicing of the profession of nursing with gross negligence . . . ." (Ackerman Aff. Ex. Q.) Plaintiff pled "no contest" to OPD's charge of "gross negligence." She was suspended for one month, fined $500, and placed on a two-year probation, of which twenty-three months were suspended. (Id.; D'Cunha Dep. at 185, 219.)

Given that Nurse Knizewski had not been involved in any other incidents requiring reoperation, Nurse Ackerman determined that Nurse Knizewski should be suspended for eight days and re-trained in OR procedures. (Ackerman Aff. Ex. N; Ackerman Aff. at ΒΆ 23; Ackerman Dep. at 35.) NYHQ also reported Nurse Knizewski to OPD. (O'Brien Reply Ex. DD.) Nurse Knizewski pled guilty to OPD's gross negligence charge. As a result of her guilty plea, Nurse Knizewski received a two-year license suspension, ...

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