The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
In her pro se complaint, filed May 21, 2004, plaintiff, who is Hispanic, sets forth claims under 42 U.S.C. § 1983 and the Civil Rights Act, 42 U.S.C. § 2000e ("Title VII"). She alleges that defendant wrongfully terminated her employment because of her race and/or national origin.
Defendant moves (Dkt. No. 21) for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Included in defendant's motion papers is a notice adequately explaining the nature of summary judgment proceedings. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999). Defendant submits proof of service on plaintiff both at her record address and at the address given in her subsequent notice of change of address (Dkt. No. 22). Plaintiff has submitted no opposing papers.
Defendant is a private, not-for-profit organization. On April 21, 2002, plaintiff began probationary part-time employment with defendant as a Certified Nursing Assistant ("CNA"). On May 6, 2002, after a two-week orientation period on the day shift (7 a.m. to 3 p.m.), plaintiff was assigned to work the evening shift (3 p.m. to 11 p.m.) on the second floor of defendant's facility. Iris Dixon, a Licensed Practical Nurse ("LPN"), was Charge Nurse for the evening shift, second floor. As such, Dixon directed the work assignments of the CNAs on her floor and shift. She did not, however, hold a supervisory position.
In a letter to Sydney Pringle, defendant's Director of Human Resources, dated May 10, 2003, plaintiff asked to be changed to the day shift, complaining of the nature of the tasks she was assigned, apparently by Dixon. The following day, plaintiff met with Pringle to discuss her request. Pringle told plaintiff that under the union contract, shift assignments were made by seniority, and that he would let her know if an opening on another shift became available.
Plaintiff continued to be assigned to the second floor, evening shift.
Plaintiff later met with Pringle again to ask whether there was an opening on a different shift; there was not. According to plaintiff's deposition testimony, plaintiff did not tell Pringle at either meeting that Dixon discriminated against her, nor did she complain about anyone else.
On June 7, 2003, an incident occurred in which Dixon claimed that plaintiff had not cared for a resident as directed. Dixon further claimed that when confronted with the situation, plaintiff became argumentative and upset the resident. Dixon prepared a report of the incident and submitted it to Pringle and Helen Mahoney, Assistant Administrator and Director of Nursing. As will be discussed below, plaintiff disputes Dixon's version of the June 7, 2003 incident.
On June 9, 2003, Pringle and Mahoney met to discuss Dixon's report concerning the June 7, 2003 incident. According to Pringle, upon reviewing plaintiff's personnel file, they learned that plaintiff's period of employment from May 6, 2003 to June 7, 2003 "was plagued with attendance problems and other performance deficiencies." Pringle and Mahoney decided to terminate plaintiff, who was still a probationary employee.*fn1
On June 9, 2003, Mahoney telephoned plaintiff and told her that she was terminated. On the following day, plaintiff met with Pringle and reviewed her personnel file. According to plaintiff, the file contained Dixon's report concerning the June 7, 2003 incident, and four other "write-ups"; plaintiff had not seen or been told about any of these complaints. Administrative charge In her administrative charge, filed July 8, 2003, plaintiff states: In May, 2003, I met with Sid Pringle, the respondent's Director of Human Resources. I requested this meeting after I realized that one of the respondent's nurses, known to me as Iris, was biased toward me because of my race and color. I explained to Mr. Pringle that Iris did not afford me the same professional courtesy and respect she gave to non-Hispanic subordinates. Mr. Pringle said that he would look into providing me with a transfer onto a different shift as soon as any openings became available.
I was never offered any change of shift after I spoke with Mr. Pringle in May, 2003. On or about June 6, 2003, Iris told me that she had written me up on one incident but when I went to Mr. Pringle to review this write-up, I discovered that Iris had placed 4 more written warnings in my file which I had never before seen nor been told about. I advised Mr. Pringle that I had never seen the 4 additional write-ups and he agreed that I should have been told about them. Nevertheless, on June 9, 2003, I received a call at home from Helen Mahoney in scheduling who informed me that the respondent had terminated my employment because of the write-ups and my attitude.
Based on the foregoing, I believe that Mr. Pringle did not look into my charges of racial prejudice because of my race and color and Mr. Pringle's failure to investigate and correct this problem resulted in my loss of employment. Therefore, I can only conclude that the respondent's management endorses a policy of discrimination perpetrated against Hispanic subordinates.
(Paragraph numbering omitted.) She adds: "I also think [I was discriminated against] because while getting on the elevator [after the June 7, 2003 incident], I heard Iris [Dixon] say to another CNA that 'no wonder, all spics are stupid.'"
District Court complaint Plaintiff's complaint before this Court, filed on May 21, 2004, alleges: I was fired because of my race/national origin. On June 7th 2003 I was working at the Jewish Home from 3pm to 11 pm. At 11pm the charge nurse called the supervisor up to the floor. I was at the time clock when the supervisor came up to me and told me to go back on the floor to clean a resident up. I did what she said and as I was leaving the charge nurse Iris Dixon had told the CNA or another nurse on the floor that all Spics are stupid. Then the 9th of June I got a ...