The opinion of the court was delivered by: Trager, J.
Plaintiff Linda O'Neal brings this action against defendants the State University of New York, Health Science Center Brooklyn ("SUNY HSCB"), the State University of New York ("SUNY"), and Michael Brennan, Commissioner of Education*fn1 (collectively "defendants"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff alleges that she was subjected to a hostile work environment and gender discrimination. Plaintiff also alleges that defendants retaliated against her for filing a gender discrimination complaint with the New York State Division of Human Rights ("NYSDHR"). Additionally, plaintiff asserts an ambiguous state law tort claim against both SUNY HSCB and Brennan seeking "pain and suffering." Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Defendants previously moved to dismiss plaintiff's initial complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief could be granted. In a March 24, 2003 Memorandum and Order, plaintiff's race discrimination claim was dismissed for failure to exhaust administrative remedies and her state law pain and suffering claim was dismissed as barred by the Eleventh Amendment. O'Neal v. State Univ. of N.Y., No. 01-CV-7802, 2003 WL 1524664 (E.D.N.Y. Mar. 24, 2003). Plaintiff's gender discrimination claim was also dismissed for failure to state a claim, but she was granted leave to amend the complaint if she wished to pursue a gender discrimination claim premised on constructive discharge. Plaintiff filed an amended complaint alleging such a claim on May 2, 2003. Curiously, in the amended complaint, plaintiff drops all mention of gender as the basis of the discrimination she allegedly suffered. Defendants have nevertheless proceeded on the theory that O'Neal is alleging gender-based discrimination.
O'Neal worked as a drug-abuse intervention counselor for SUNY HSCB between 1971 and 2000. Pl.'s Decl. ¶¶ 1-7. From 1971 until 1973, O'Neal worked at SUNY's Loft Satellite clinic in a program devoted to adolescent outreach. Pl.'s Dep., Ex. B. at 26-29. During this period, O'Neal worked alongside a counselor named Charles Myzwinski, apparently without incident. Pl.'s Dep., Ex. B at 49, 55. In 1973, O'Neal transferred to SUNY's Polydrug Clinic, where she worked with adult drug addicts. Pl.'s Dep., Ex. B at 54-56.
In 1995, Myzwinski also joined the Polydrug Clinic, assuming the position of Assistant Director of Counseling, which he held almost continuously until he retired in 2002.*fn2 Halloran Decl., ¶ 4. Myzwinski did not directly supervise O'Neal, but he shared overall responsibility for managing the Polydrug Clinic with Unit Supervisor Gerard Halloran. Myzwinski Dep. Ex. 1 at 14-17; Halloran Decl. ¶ 7. While Halloran managed the clinic's day-today operations, Halloran Decl. ¶ 6, Myzwinski oversaw the clinic's counseling services. Myzwinski Decl. ¶ 6.
According to O'Neal, Myzwinski continually harassed her between 1998 and 2000. Pl.'s Dep., Ex. B at 93, 118, 122, 127, 129. O'Neal points to a number of specific incidents involving alleged harassment. In October 1998, Myzwinski aggressively reproached her for keeping a patient waiting, just as she was retrieving the patient from the clinic's waiting area. Id. at 92-95. That same month, O'Neal briefly stopped in the hallway to tell the clinic secretary that she was expecting an important call from her father's nursing home when Myzwinski loudly yelled at O'Neal to "get out of the hallway." Pl.'s Decl. ¶ 51. During a later meeting with Halloran and Myzwinski, Myzwinski confronted O'Neal in an intimidating manner regarding her presence in the hallway. Id. ¶ 66. Additionally, O'Neal alleges that on at least one occasion in April or May 1999, Myzwinski falsely reported to Halloran that she had failed to conduct a group counseling session that she had, in fact, conducted. Id. ¶¶ 73-74.
O'Neal also cites to an incident that occurred during a meeting in October 1999. While making an oral presentation to the staff, Myzwinski heard a noise that he believed came from O'Neal's direction. Myzwinski Decl. ¶¶ 8-9. Myzwinski stopped his presentation and confronted O'Neal. Id. ¶¶ 9-10. After the meeting, however, another counselor, Serap Turker, admitted to Myzwinski that she had made the noise. Id. ¶ 11. At the next staff meeting, Myzwinski made a general apology to the staff for falsely accusing O'Neal. Id. ¶ 12.
O'Neal found the apology insufficient, and on November 15, 1999 she filed an Internal Discrimination Grievance Procedure Complaint based on race, color and sexual harassment. CondeBilly Decl. ¶ 15. The grievance cited both the staff-meeting incident and the 1998 hallway confrontations. Id. ¶ 16; see Ex. G. In response, on December 13, 1999, Myzwinski apologized directly to O'Neal in writing for embarrassing her at the staff meeting, but failed to mention the hallway incidents. CondeBilly Decl. ¶ 28; Ex. H. The next day O'Neal signed a one-sentence Settlement of Grievance which stated, "[t]he attached letter from Mr. Charles Myzwinski is an acceptable resolution of my complaint filed on November 15, 1999 concerning alleged discrimination." Conde-Billy Decl. ¶ 31; Ex. H.
In addition to the specific instances cited above, O'Neal alleges some forms of ongoing harassment. According to O'Neal, Myzwinski continually bypassed her immediate supervisor, Halloran, to criticize her work and make negative comments about her in front of her colleagues and patients. Pl.'s Dep., Ex. B. at 92, 96, 118, 127, 129, 176; Pl.'s Decl. ¶ 66. O'Neal also alleges that beginning in 1998, Myzwinski began to close the door to her office every time he walked by, without O'Neal's permission and without giving an explanation. Pl.'s Decl. ¶¶ 42, 44-47. O'Neal also alleges that she complained to Halloran, but that Myzwinski continued to shut the door up to three times per day. Id. ¶¶ 47-48, 76.
On June 8, 2000, the door-closing incidents culminated in an altercation between O'Neal and Myzwinki.*fn3 According to O'Neal, when Myzwinski started to close her door, she told him not to touch the door and then struggled with him to keep the door open. Pl's Dep., Ex. B at 188-216; Pl's Decl. ¶¶ 77-78. When Myzwinski finally let go of the door, the door swung toward O'Neal and struck her on the knee. Pl's Decl. ¶ 79. Myzwinski attested to a conflicting version of the encounter, implying that the door never hit O'Neal on the knee. Myzwinski Dep., Ex. 1 at 35-38; Ex. L (incident report drafted by Myzwinski dated June 27, 2000). At her deposition in October 2004, O'Neal stated that the struggle lasted "a good three, maybe four, five minutes." Pl's Dep., Ex. B at 211. On prior occasions, O'Neal had stated, in writing, that Myzwinski let the door go "a few seconds" after she requested that he remove his hand from her door. Ex. J; Ex. R.
According to plaintiff, in the hours following the confrontation with Myzwinski, her knee swelled to the point where she could no longer stand. Pl.'s Decl. ¶ 79. After this incident, plaintiff did not return to work at the Polydrug Clinic, allegedly because of a permanent physical disability to her knee and her feelings of intimidation. Pl.'s Dep., Ex. B. at 252-53; Pl.'s Decl. ¶¶ 77-99, 100.
During June 2000, O'Neal saw three different doctors concerning her knee. Dr. Ronald Richmond filled out a disability certificate on June 15, 2000. Ex. 3. Although the form states that O'Neal was under Dr. Richman's care for her right knee, no information was entered in the section identifying how long O'Neal would be incapacitated. Id. O'Neal also saw Dr. Shaheed Khan. Ex. AA at 12. In a letter dated June 12, 2000, Dr. Khan stated that it was "undecide[d] when O'Neal would be cleared for work." Ex. 2. In a letter dated June 14, 2000, Dr. Khan stated that O'Neal was "cleared to return to work" on June 21, 2000.
Ex. I. In a letter dated June 21, 2000, Dr. Kahn stated that O'Neal was cleared to return to work on July 12, 2000. Ex. K. According to O'Neal, Khan eventually referred her to Dr. Leon Bernstein. Pl's Dep., Ex. C at 285. In a letter dated June 30, 2000, Dr. Bernstein concluded that O'Neal "has been totally disabled from work since the date of injury." Ex. 6. Dr. Bernstein issued similar letters through December 2000. Id.
On or about July 3, 2000, plaintiff initiated a claim for workers' compensation benefits based on the injury to her knee. Pl.'s Dep., Ex. C at 262-268; Ex. Q. On August 15, 2000, O'Neal filed a complaint with NYSDHR alleging gender discrimination during her employment at the clinic. Pl's Decl. ¶ 102; Ex. R. O'Neal predicated this complaint on Myzwinski's allegedly derogatory attitude towards women, the October 14, 1999 staff-meeting incident and the June 8, 2000 door-closing incident. Ex. R. On or around August 28, 2000, Brennan received a copy of the complaint from Halloran. Brennan Decl. ¶ 7. Although no specific date is provided, Halloran appears to have received the complaint a few days earlier. Halloran Decl. ¶¶ 18-19. Myzwinski learned of the complaint in early September 2000. Myzwinski Decl. ¶ 31.
On or around August 25, 2000, O'Neal was granted a leave of absence without pay from July 3, 2000 through September 27, 2000. Ex. S. On August 30, 2000, Dr. Milton Smith conducted an independent examination of O'Neal in conjunction with her workers' compensation claim and issued a report stating that O'Neal was capable of all work activities as a counselor. Beginning in early September, Brennan, the Deputy Director of Labor Relations, conducted an investigation into plaintiff's NYSDHR complaint. Brennan Decl. at 7. Brennan interviewed a number of individuals including Halloran and Myzwinski. Id. at 7. Halloran informed Brennan that prior to the June 8th door-closing incident, O'Neal had stated that she had past problems with her knees and would need to take a leave of absence to attend to those problems. Id. at 7-8. According to Brennan, Myzwinski told him that O'Neal's knee was not struck by the door on June 8. Id. at 8.
Personnel Associate Stephanie Watson sent plaintiff a letter, dated September 13, 2000, which, based on Dr. Smith's evaluation, instructed O'Neal to return to work on September 18, 2000 and stated that "should you not return to duty, your absence will be considered unauthorized and may subject you to disciplinary action." Exhibit U. O'Neal did not report to work on September 18, 2000. On October 6, 2000, Brennan sent plaintiff a follow-up letter referencing the earlier communication and informing O'Neal that because she "failed to report to work as directed," she was being "placed on unauthorized leave without pay" and that her "continued absence will subject [her] to disciplinary action." Ex. X. Four days later, Brennan sent O'Neal a letter directing her to appear at his office for a disciplinary interview. Brennan Decl. ¶ 54; Ex. Y. O'Neal attended the disciplinary interview on October 20, 2000, but no disciplinary action was ever taken against her. Brennan Decl. ¶¶ 55, 64-65; Ex. AA.
On November 6, 2000, Brennan wrote a letter to the New York State Insurance Fund ("Fund"), urging the Fund to oppose O'Neal's claim for workers' compensation. Ex. DD. Brennan stated that SUNY HSCB believed that "O'Neal's claim that she was injured by her office door during a dispute with a supervisor is a fabrication." Id. Brennan based that conclusion on, among other evidence, Dr. Smith's medical report, Dr. Khan's June 21, 2000 assessment, and the statements of Myzwinski and Halloran. In the letter, Brennan stated that he had not previously written to the Fund due to "an administrative oversight." Id.
According to O'Neal, in either November or December 2000 Brennan called Dr. Bernstein to find out O'Neal's medical status. Pl.'s Dep., Ex. C at 351-54. According to O'Neal, Brennan told Bernstein that he thought O'Neal was lying. Id. at 350. In mid-December 2000, as part of his ongoing disciplinary investigation, Brennan asked Dr. Thomas Haher to conduct an independent medical examination. Brennan Decl. ¶¶ 66-97. Prior to the scheduled examination, Brennan sent Dr. Haher a letter explaining the circumstances of O'Neal's case and stating that "we are concerned that Ms. O'Neal may be feigning the existence or seriousness of her current ailment to avoid working. We are also concerned that she may be fabricating the cause of any disability to qualify for Worker's Compensation payments to which she is not legitimately entitled." Ex. GG. Haher examined O'Neal on December 22, 2000. Ex. KK. Despite numerous requests, by May 14, 2001, Haher had still not produced a written report. Ex. 22. As a result, Brennan faxed a pre-written statement to Haher to sign, which Brennan claims simply summarized a telephone conversation the two held after Haher examined O'Neal. Brennan Decl. ¶¶ 80, 91-92. In the statement, Brennan wrote:
My examination of Ms. O'Neal did not reveal anything physically wrong with her knee. She told me that she expects to have surgery on her knee for a torn menial meniscus. The manner in which she states she was injured, however, is not consistent with a diagnosis of a torn meniscus. I recommend that Ms. O'Neal's MRI be read by a radiologist to determine whether in fact she suffers from a torn meniscus. In my medical opinion, unless the MRI's indicate otherwise, Ms. O'Neal was fit for duty on the day I examined her.
Ex. 22. Brennan also wrote that "[i]f this summary does not comport with your recollection of your findings, please advise me at your earliest opportunity." Id. Although Haher never signed that statement, later that day he faxed Brennan a report, dated January 3, 2001, concerning his examination of plaintiff. Haher's report stated that
[i]t is difficult to say whether or not patient is fit for duty based on her physical exam. The physical exam has no objective findings. However, if the MRI were to show gross pathology of the knee then the patient would not be fit for duty. I am therefore waiting a formal reading of the MRI from a radiologist.
Ex. KK. Haher diagnosed O'Neal with "[o]steoarthritis of the medial compartment of the right knee, chronic in nature." Id.
O'Neal continued on unauthorized leave until December 31, 2002, at which point her position was eliminated in a restructuring. Ex. QQ.
a. Summary Judgment Standard
To prevail on their motion for summary judgment, defendants must prove that no genuine issues of material fact exist and they are, therefore, entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Issues are considered "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In a motion for summary judgment, all factual inferences should be drawn in favor of the non-moving party. Id. at 255; Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999).
b. Settlement of Grievance
As an initial matter, defendants argue that the Settlement of Grievance O'Neal signed on December 14, 1999 fully resolved O'Neal's complaints with respect to the 1998 hallway incidents and the 1999 staff-meeting. An employee may "waive his cause of action under Title VII as part of a voluntary settlement" so long as the employee's consent to the settlement is "voluntary and knowing." Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 52 n.15 (1974); Reidy v. Runyon, 971 F. Supp. 760, 764 (E.D.N.Y. 1997); Cordoba v. Beau Dietl & Assocs., No. 02-CV-4951, 2003 WL 22902266, at *4 (S.D.N.Y. Dec. 8, 2003). In assessing whether plaintiff knowingly and voluntarily waived her right to file suit, the totality of the circumstances must be considered. Bormann v. AT&T Commc'ns, Inc., 875 F.2d 399, 403 (2d Cir. 1989). In making that determination, a court should consider: (1) the plaintiff's education and business experience; (2) the amount of time the plaintiff had possession of or access to the agreement before signing it; (3) the role of plaintiff in deciding the terms of the agreement; (4) the clarity of the agreement; (5) whether the plaintiff was represented by or consulted with an attorney; (6) whether ...