The opinion of the court was delivered by: Trager, J
Plaintiff Cynthia Warren ("plaintiff") brings this employment discrimination case against her former employer, the North Shore University Hospital at Forest Hills ("Hospital" or "defendant"). Plaintiff alleges that she was treated adversely on account of her race, in violation of 42 U.S.C. § 1981 ("Section 1981"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq. ("Title VII"); the New York State Executive Law, §§ 290 et. seq. ("HRL"); and the New York City Human Rights Law § 8-1107(a) of the Administrative Code of the City of New York ("NYCHRL"). Plaintiff additionally alleges that she was subjected to disparate treatment in retaliation for complaining about the discrimination, in violation of Section 1981 and Title VII. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff, an African-American woman, is a Physician Assistant ("PA") with over 25 years of experience in the health care industry. Pl.'s Ex. 1. From 1981 to 1992, plaintiff worked as a nurse in the operating room ("OR") of three hospitals in California. Id. In 1992 she went back to school to receive additional training to become a PA, graduating in 1994. Id. Upon graduating, she worked as a PA in the Hospital for Special Surgery and Brookdale Hospital, both in New York. In these hospitals she worked mostly in emergency medicine and pre- and post-operative care. Id.
Plaintiff was hired as a PA by the North Shore University Hospital in October 1997. Upon her hiring, plaintiff was assigned to Pre-Admission Testing in the Anesthesia Department. Dep. of Cynthia Warren ("Warren Dep.") 40:10-19. Her responsibilities in this position included seeing patients who were coming to the hospital for surgery, evaluating blood work, ordering X-rays, and handling patient education. Id. at 52:23-54:3. Soon after starting work, plaintiff informed the Human Resources Department of her desire to transfer to the Surgical Department when a position opened up. Id. at 56:7-12. She was interested in working for the Surgical Department because of its higher salary and greater opportunity for overtime pay. Id. at 230:20-25.
In November 1999, while plaintiff was on medical leave for rheumatoid arthritis, the hospital hired Stacey Slovin, a Caucasian, as a PA in the Surgical Department. The decision to hire Ms. Slovin was made by Dr. John Cosgrove, then the Head of the Surgical Department. Aff. of Dr. John Cosgrove ("Cosgrove Aff.") ¶¶ 6-7. Hospital policy did not require the personnel department to advertise any openings. Dep. of Monica Rauls ("Rauls Dep.") 12:4-12. When plaintiff returned from medical leave, she learned of Ms. Slovin's hiring. She informed Dr. Cosgrove and Monica Rauls, the Director of Human Resources for the Hospital, that she would like to be notified of any future openings in the Surgical Department. Warren Dep. 68:15-20. Plaintiff could not recall ever informing Dr. Cosgrove of her desire prior to this occasion. Id. at 66:15. At the time, plaintiff did not file any complaints alleging that the hiring of Ms. Slovin was due to racial discrimination. Id. at 74:11-14. At her deposition for this litigation, however, plaintiff claimed that the hiring decision was racially motivated, as she was "well qualified" for the position. Id. at 72:14-15.
Early in 2000, Dr. Paul Ackerman was appointed as the Director of Orthopedics in the Hospital. Dep. of Dr. Paul Ackerman ("Ackerman Dep.") 6:7-21. His responsibilities as Director included the recruitment and hiring of staff for his department. Id at 10:15-18. As part of an initiative to expand the Orthopedic Department, Dr. Ackerman sought to hire additional PAs. Aff. of Renata Hartung ("Hartung Aff.") ¶ 6. Prior to this initiative, the Orthopedic Department had only two PAs, one of whom was Renata Hartung, an African-American woman. Ackerman Dep. 9:12-21; Hartung Aff. ¶ 5. Two of the main criteria that Dr. Ackerman looked for in his new hires were enthusiasm and a "really pro-patient" attitude. Ackerman Dep. 12:10-13:9. When plaintiff heard of these openings, she requested an interview with Dr. Ackerman, which was soon granted. Warren Dep. 75:11-76:21; Ackerman Dep. 21:9-14. Following the interview, Dr. Ackerman asked others in the Hospital about their experiences working with plaintiff. After speaking with two members of the Orthopedics Department -- Drs. Reddy and Singha -- he walked away with a negative opinion of plaintiff because she "wasn't really good with patients." Id. at 21:19-22:17. Ms. Hartung was asked by one of Dr. Ackerman's associates whether plaintiff had any recent surgical experience. Hartung replied that she was not aware of any such experience. Hartung Aff. ¶ 7. Dr. Ackerman chose not to hire plaintiff, hiring three Caucasian males instead. Def.'s Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 ("Def's 56.1 Stmt.") ¶ 26. All three were recent graduates of a PA program, and had recent training in operating room and direct patient care. Id. at ¶ 27. Plaintiff claims that discrimination was the cause of her non-hiring for the lateral position. Warren Dep. 85:14-17. Despite her many years of experience, she was passed over, and three recent graduates were hired instead. The Hospital responds that the decision not to hire plaintiff had nothing to do with race. Work experience was not the sole criteria used in determining the qualifications of potential candidates. Plaintiff did not have recent experience in the operating room, while the new hires did. Id. at 54:6-8; Def.'s Ex. 7. The recent graduates impressed Dr. Ackerman as being very enthusiastic and pro-patient, while the feedback he received regarding plaintiff was largely negative. Ackerman Dep. 18:14-19:2, 20:4-20, 21:19-22:17. Plaintiff complained to a number of people that she had been denied the position on the basis of race, but did not file an official complaint. Warren Dep. 85:14-87:9. She did not apply for a fourth PA position that opened the following year. Id. at 90:10-19.
In September of 2001, the Hospital hired Dr. Moises Tenembaum to be the Director of Surgery. Def.'s 56.1 Stmt ¶ 51. Dr. Tenembaum arranged with the Hospital to hire two PAs, Ms. Fyberg and Mr. Bernstein, with whom he had worked for a number of years. These PAs were specifically hired to work in the Hospital operating room, in order to continue working with Dr. Tenembaum. Dep. of Dr. Moises Tenembaum ("Tenembaum Dep.") 13:3-25. They began working at the Hospital in December, 2001. Def.'s 56.1 Stmt. ¶ 54.
After not receiving any of the slots that opened up in the Orthopedic Department, plaintiff complained to a Union*fn1 representative that she was being denied promotions and transfers on the basis of her race. Warren Dep. 95:3-8. Ms. Rauls met with the Executive Vice President of the Union to discuss plaintiff's situation. Def.'s 56.1 Stmt. ¶ 44. The issue was raised again during negotiations between the Union and Hospital. Id. at ¶ 45. On November 1, 2001, the Union and Hospital entered into a Memorandum of Agreement ("MOA"). Id. at ¶ 46. As part of the agreement, the Hospital agreed to transfer plaintiff to the Surgical Department, as she had desired. A separate letter, also dated November 1, 2001, memorialized this agreement. The agreement provided that the Hospital could assign plaintiff to the day or evening shift. Id. at ¶ 48. Plaintiff was to begin working in the Surgical Department on Dec. 1, 2001, though her actual start date was February 6, 2002. Id. at ¶ 50. Plaintiff did, however, receive the pay increase that accompanied the transfer starting December, 2001. Id. at ¶ 51.
Towards the end of February, 2002, plaintiff received a proposed schedule from her supervisor Dr. Soojin Kim. Id. at ¶ 63. The schedule outlined her work hours for the upcoming month, and included some night shifts. Id. at ¶ 66. Plaintiff did not want to work night shifts and complained to the Hospital and the Union. On March 1, 2002 plaintiff met with the Hospital's Labor Relations Manager and a Union representative to discuss plaintiff's objection to the proposed schedule. Id. at ¶ 71. Plaintiff was reminded that she agreed to work night shifts in the MOA signed in November 2001. Aff. of Barbara Felker Scott ("Scott Aff.") ¶ 12. The Hospital claimed that the night shifts were necessary in order to provide 24-hour coverage for the Surgical Department. Id. at ¶ 13. Plaintiff was told that she could either agree to work some evening shifts or return to her previous position, where only day shifts were required. Id. at ¶¶ 11-14. Later that day, Union representatives called plaintiff and told her that "it doesn't look good for you" and that "you really needed to make a decision." Warren Dep. 186:12-20. The following Monday, plaintiff had chest pain and was too ill to return to work. She has been on medical leave since March 2002. Def.'s 56.1 Stmt. ¶¶ 77-78.
(1) Summary Judgment Standards and the Parties' Allegations
A motion for summary judgment is granted when there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The function of the court is not to resolve any questions of fact, but only to determine whether there is disagreement over any of the material facts. In making a determination for summary judgment, the court must "resolve all ambiguities, and credit all factual inferences that could rationally be drawn in favor of the party opposing summary judgment." Fitzgerald v. Henderson, 251 F.3d 345, 360 (2d Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Thus, "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); see also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) ("Reeves clearly mandates a case-by-case approach, with a court examining 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.") (internal quotation marks omitted); Roge v. NYP Holdings, Inc., 257 F.3d 164, 167-68 (2d Cir. 2001). The district court should not view the evidence in a piecemeal fashion, but must look at the totality of the circumstances. Fitzgerald, 251 F.3d at 360.
Plaintiff claims that she was subject to disparate treatment while working in the Surgical Department in retaliation for complaining about the alleged discriminatory treatment. The alleged disparate treatment can be broken down into five components: (1) Although the agreement stipulated that plaintiff begin working in the Surgical Department on Dec. 1, 2001, she did not begin until February 6, 2002. Id. at ¶ 50. (2) Plaintiff was paid less than the two PAs brought in with Dr. Tenembaum despite having worked at the Hospital longer. Pl.'s Rule 56.1 Statement ("Pl.'s 56.1 Stmt.") ¶ 43. (3) Plaintiff was assigned a labor-intensive workload, covering the emergency room, the recovery room, the pre-surgical holding area and doing surgical consults, while the newly hired PAs worked exclusively in the operating room. Warren Dep. 172:6-22. (4) Plaintiff was scheduled to work night shifts (although she never actually did). Def.'s 56.1 Stmt. ¶ 66. (5) Plaintiff did not receive the pharmacy orientation that the other PAs received until she complained to the Human Resources Department. Warren Dep. 144:7-15.
The Hospital responds that there were valid, non-discriminatory reasons for plaintiff's complaints. (1) The delay in transferring plaintiff to the Surgical Department was due to a search for plaintiff's replacement in Pre-Admission Testing. Rauls Dep. 74:6-13. Plaintiff suffered no injury from this delay, as she was paid the higher salary starting December 1. (2) The PAs brought in with Dr. Tenembaum had more experience as surgical PAs, and were, therefore, entitled to a higher salary. Tenembaum Dep. 13:3-25. (3) The newly hired PAs were brought in for the sole purpose of working with Dr. Tenembaum in the operating room. Warren Dep. 177:16-24. Furthermore, the one time she did work in the operating room the surgeons she assisted reported that she "[was]n't really good in the Operating Room." Id. at 189:16-21. (4) The MOA that plaintiff signed expressly provided that she was obligated to work night shifts. Def.'s 56.1 Stmt. ¶ 48. Moreover, plaintiff was not singled out to work night shifts since all PAs had been assigned some night shifts. Scott Aff. ¶¶ 7-8.
(2) Statute of Limitations
As a threshold matter, defendant argues that many of plaintiff's claims are barred by the statute of limitations. The statute of limitations varies for each of the charges that plaintiff alleges. Title VII complaints must be filed with the EEOC within 300 days of the alleged discriminatory actions. 42 U.S.C. § 2000e-5(e)(1). If the plaintiff does not file a charge with the EEOC within that time period, the claim is not actionable. See Forsyth v. Fed'n Empl. & Guidance Serv., 409 F.3d 565, 573 (2d Cir. 2005); (citing AMTRAK v. Morgan, 536 U.S. 101, 113 (2002)). Section 1981 has a four-year statute of limitations. Jones v. R.R. Donelly & Sons, Co., 541 U.S. 369, 382-83 (2004); Fernandez v. M & L Milevoi Mgmt., Inc., 357 F.Supp. 2d. 644, 651 (E.D.N.Y. 2005). The New York State and New York City Human Rights Laws are governed by the three-year statute of limitations articulated in N.Y.C.P.L.R. § 214(2) (McKinney 2003). See Forsyth, 409 F.3d at 572.
Plaintiff filed her EEOC complaint on November 18, 2002. Def.'s Ex. 15. Thus, any alleged complaints of discrimination under Title VII that occurred prior to January 22, 2002 are untimely. This would leave only one justiciable Title VII complaint: plaintiff's complaint regarding her treatment in the Surgical Department in February 2002. The state and city Human Rights Laws each have a three-year statute of limitations. Plaintiff filed her summons and complaint with this court on January 3, 2003. Therefore, any claims of discrimination that occurred before January 3, 2000 are time-barred. Specifically, the hiring of Stacey Slovin, which occurred in November, 1999 is untimely. The four-year statute of limitations for Section 1981 includes all the alleged discriminatory acts. To summarize, defendant contends that all of plaintiff's Title VII claims are barred except for the incidents in the Surgical Department. Defendant concedes that the HRL and NYCHRL claims are all timely except for Stacey Slovin's hiring, and all Section 1981 claims are timely.
Plaintiff responds that none of the violations should be time-barred, but should be permitted under the doctrine of continuing violations. The doctrine of continuing violations allows plaintiffs to file certain discrimination claims even after the statute of limitations has passed. The purpose of this doctrine is to allow the inclusion of actions whose discriminatory character was not apparent at the time they occurred. See Provencher v. CVS Pharm., 145 F.3d 5, 15 (1st Cir. 1998). The continuing violations doctrine is not intended to allow employees a second chance to bring stale claims once the statute of limitations has passed. Carter v. West Publ'g Co., 225 F.3d 1258, 1264 (11th Cir. 2000). In order to make a continuing violation claim, the plaintiff must demonstrate that there was an ongoing policy or practice of discrimination by the employer. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). "Multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Id. at 765.
When a discriminatory act is considered separate or discrete, there can be no continuing violation claim, and all claims beyond the statute of limitations are barred. See Forsyth, 409 F.3d at 572. The Supreme Court has held that "termination, failure to promote, [and] denial of transfer" are discrete acts under the continuing violation doctrine. AMTRAK, 536 U.S. at 114. The well-established law in this circuit is consistent with AMTRAK. See Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); Crosland v. City of New York, 140 F. Supp. 2d 300, 308 (S.D.N.Y. 2001). The reasoning behind these rulings is intuitive. Denial of transfer, termination or failure to promote are ...