The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff Lena Hill filed this action alleging discrimination by various defendants, including her employer, Bellevue Hospital & Health Corporation, as well as the City of New York Health & Hospital Corporation, and her co-workers and supervisors Carol RayboyBrauestein ("Raboy-Braunstein"),*fn1 Dr. David Hart, Carole Nelson, Parmanand Persaud, and Margaret Refen. Plaintiff brings several causes of action, including: (1) purposeful racial discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (2) racial discrimination, in violation of 42 U.S.C. § 1981; (3) retaliation against Plaintiff for filing a discrimination claim, in violation of Title VII; (4) emotional distress as a result of discrimination; and (5) breach of contract.*fn2 Plaintiff mentions, but does not specifically plead, violations of New York Executive Law sections 296 and 297.*fn3 At the conclusion of discovery, Defendants moved for summary judgment on all counts. For the reasons stated below, the Defendants' motion for summary judgment is granted in part and denied in part.
Plaintiff, an African-American woman, has been an employee of New York City for more than 19 years. (Am. Compl. ¶ 11) On April 17, 2000, Plaintiff was transferred from Gouveneur Hospital to Defendant Bellevue Hospital & Health Corporation ("Bellevue" or "Bellevue Hospital"), as her division at Gouveneur Hospital closed. (Defs.' Local Rule 56.1 Statement of Undisputed Facts ¶¶ 1, 3 ("Defs.' 56.1")) A few years prior to her transfer, Plaintiff filed a discrimination action under Title VII against the New York City Health and Hospital Corporation stemming from her employment at Gouveneur Hospital. Hill v. N.Y. City Health & Hosp. Corp., No. 96 Civ. 9601 (S.D.N.Y. filed Dec. 20, 1996). That action was settled in April 2000. Plaintiff began working at Bellevue Hospital on May 13, 2000, and she was assigned to the Pediatric Hematology laboratory in the Pathology Department.*fn4 (Defs.' 56.1 ¶ 4; Pl.'s Statement of Disputed Material Facts Pursuant to Local Rule 56.1 ¶ 4 ("Pl.'s 56.1")) Her current position is Laboratory Associate, and she holds a license to perform laboratory work. (Am. Compl. ¶ 12; Pl.'s Dep. 21) Although while at Gouveneur Hospital Plaintiff had performed numerous different types of analyses, including urinalysis, at Bellevue she primarily performed phlebotomies. (Pl.'s Dep. 23) A phlebotomist draws blood for analysis, but does not analyze blood herself.
Defendant Raboy-Braunstein is Plaintiff's supervisor, and works as the Senior Associate Director of Pathology. (Defs.' 56.1 ¶¶ 4-5; Decl. of Marshall B. Bellovin in Opp'n to Defs.' Mot. for Summ. J. ("Bellovin Decl.") Ex. B 160, 163 ("Pl.'s Dep."*fn5 )) Defendant Parmanand Persaud ("Persaud") is Plaintiff's supervisor in the Pediatric Hematology laboratory (Pl.'s Dep. 160, 163), and is the Laboratory Supervisor. (Am. Compl. ¶ 5) Defendant Margaret Refen ("Refen") is the supervisor of Plaintiff's section (Bellovin Decl. Ex. C at 41 ("Raboy-Braunstein Dep."*fn6 )), and is also an Associate Laboratory Microbiologist. (Am. Compl. ¶ 6) Defendant Carole Nelson ("Nelson") is also an Associate Laboratory Microbiologist, and one of Plaintiff's supervisors. (Defs.' 56.1 ¶ 10) Both Defendants Nelson and Refen are African-American. (Pl.'s Dep. 85-86) Defendant Dr. David Hart ("Hart") is a pediatric hematologist physician (Am. Compl. ¶ 3), who works in Plaintiff's laboratory two days a week and supervises the work there. (Id.; Pl.'s Dep. 160, 163) He is not Plaintiff's direct supervisor. (Raboy-Braunstein Dep. 41)
B. Plaintiff's Transfer to Bellevue
Upon her transfer to Bellevue in May 2000, Plaintiff alleges that she was questioned by Raboy-Braunstein and Persaud about the settlement in her previous case against the Health and Hospital Corporation. (Pl.'s Dep. 51-55) Additionally, Plaintiff claims that she was almost immediately subjected to discriminatory treatment. (Am. Compl. ¶ 17) Plaintiff alleges that she preferred to be assigned to the General Hematology laboratory, but was instead assigned to the Pediatric Hematology laboratory. (Pl.'s Dep. 134, 138) Plaintiff claims this assignment is discriminatory because only "minorities" work in the Pediatric Hematology laboratory "during the day."*fn7 (Id. 134) Plaintiff further alleges that she was assigned to the Pediatric Hematology laboratory without the proper training.*fn8 (Am. Compl. ¶ 19; Pl.'s Dep. 47) According to Plaintiff, she was trained in microscopic urinalysis without the necessary prerequisite training course, allegedly in contravention of the hospital's regulations. (Pl.'s Dep. 47-50, 59) Additionally, Plaintiff alleges that her supervision in the Pediatric Hematology laboratory was discriminatory. According to Plaintiff, Dr. Hart, one of her supervisors, closely micro-manages her work, while he does not do so for "mainstream whites." (Pl.'s Dep. 142, 146-47)
Approximately one month after beginning work at Bellevue, on June 12, 2000, Plaintiff was given three proficiency slides by Persaud, another of her supervisors, to test her ability to identify certain types of cells. (Pl.'s Dep. 66-67; Defs.' Notice of Mot. for Summ. J. Ex. D ("Defs.' Mot.")) Plaintiff did not identify these slides correctly. (Defs.' Mot. Ex. D) Plaintiff alleges that Persaud, who administered the test, lacked knowledge on the subject and thus wrongly evaluated Plaintiff's correct assessments. (Pl.'s Dep. 307) Plaintiff claims that white employees were not given such tests before they were trained on the material being tested. (Am. Compl. ¶ 24) Over the next year, Plaintiff was given approximately eight weeks of additional training in both chemical and microscopic urinalysis. (Defs.' 56.1 ¶¶ 13, 16; Defs.' Mot. Exs. F, I, J, K)
Soon after she started at Bellevue, Plaintiff asked for vacation time during the week of July 4, 2000. She allegedly was told by Raboy-Braunstein to produce an airline ticket.*fn9 (Am. Compl. ¶ 25; Pl.'s Dep. 69-70) Plaintiff asserts that white co-workers are not asked for airline tickets when they wish to go on vacation. (Am. Compl. ¶ 26; Pl.'s Dep. 70) On June 24, 2000, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that she was racially discriminated against by being forced to show an airline ticket in order to be granted vacation time. (Defs.' 56.1 ¶ 7; Defs.' Mot. Ex. R) On June 30, 2000, the EEOC issued a right to sue letter, as it was unable to determine whether Plaintiff's civil rights had been violated. (Defs.' Mot. Ex. R)
On July 30, 2000, Plaintiff was injured by an autistic patient. (Am. Compl. ¶ 27; Pl.'s Dep. 71, 73) She alleges that by August 2000, she was medically cleared to return to work for all duties except phlebotomy. (Am. Compl. ¶ 27) However, Raboy-Braunstein did not allow Plaintiff to return to work at that point on the grounds that Plaintiff could not perform her on-thejob duties due to injury. (Am. Compl. ¶ 27; Pl.'s Dep. 72) Plaintiff alleges that her treatment was different from that of white employees because she knew of a white employee who was allowed to return to work despite having a cast on one arm. (Am. Compl. ¶ 28; Pl.'s Dep. 73-74) Plaintiff returned to work in October 2000. (Pl.'s Dep. 73)
On December 24 and 26, 2000, Defendants allege that Plaintiff refused to perform tasks requested by supervisors. (Defs.' 56.1 ¶ 9; Defs.' Mot. Exs. G, H)Plaintiff alleges that RaboyBraunstein directed these supervisors to write Plaintiff up for insubordination on December 26, 2000, despite Plaintiff's inability to perform the procedures due to injury. (Pl.'s 56.1 ¶ 9) In January 2001, Plaintiff received a negative evaluation of her work covering the period from April 2000 to October 2000. (Defs.' Mot. Ex. E) The evaluation noted that Plaintiff "experience[d] difficulty performing microscopic examination . . . of urine after six weeks of training." (Id.) The report also noted that since her injury Plaintiff "has been ill on several occasions including alternate Sundays that she was scheduled to work." (Id.)
Plaintiff's key to the Pediatric Hematology laboratory was either lost or stolen on January 24, 2001. (Pl.'s Dep. 75) When Plaintiff went to report the missing key, allegedly with Defendant Refen's permission, Refen reported Plaintiff's absence to Raboy-Braunstein.*fn10 (Pl.'s Dep. 75, 80-81) Plaintiff alleges that this was because of her race. (Am. Compl. ¶ 32)
On March 26, 2001, Plaintiff was asked to take blood from a child in the hospital. She used a venepuncture procedure, when the child allegedly requested a finger-stick procedure.*fn11
(Pl.'s Dep. 110) Soon after, on March 28, 2001, Plaintiff alleges that she was confronted without warning by Refen, Nelson, and another supervisor who subjected her to a test of her microscopic testing skills. (Am. Compl. ¶¶ 35-36; Pl.'s Dep. 88) Plaintiff alleges this test was demanded by Raboy-Braunstein in response to the events of March 26th. (Pl.'s Dep. 91) Defendants assert that Plaintiff had been informed of the test the day before. (Defs.' Mot. Ex. N) Plaintiff refused to take the test, stating that she felt ill and had forgotten to take her medicine earlier that day. (Pl.'s Dep. 88-90) At a disciplinary hearing, Plaintiff was disciplined for these incidents and given a ten-day suspension without pay. (Pl.'s Dep. 133-34; Defs.' Mot. Ex. S) Plaintiff appealed the suspension, but it was affirmed after an additional hearing. (Defs.' Mot. Ex. Y)
Plaintiff then filed additional complaints with the EEOC from July through December 2001, complaining of the alleged discrimination which was the basis of this action, notably, that her testing was discriminatory, that she was improperly trained, that she was subjected to excessive scrutiny, and that her supervisors had failed to replace her laboratory key. (Defs.' Mot. Ex. T) The EEOC refused to file a claim on her behalf because she had failed to state an actionable claim. (Id.) The EEOC mailed a right-to-sue letter to Plaintiff, dated December 31, 2000. (Defs.' Mot. Ex. U) On February 20, 2002, Plaintiff contacted the EEOC, claiming she had never received her right-to-sue letter. (Id.) The EEOC mailed an additional copy of the December 31, 2002 letter to Plaintiff, which she allegedly received on February 23, 2002. (Pl.'s Dep. 225)
In addition to the allegedly discriminatory treatment outlined above, Plaintiff also alleges she was called racist epithets on more than one occasion.*fn12 On an unspecified date shortly after she began working at Bellevue, Plaintiff alleges that she was called a "nigger" by RaboyBraunstein in an attempt to provoke her into striking a supervisor. Plaintiff claims RaboyBraunstein placed her face so close to Plaintiff's that their noses almost touched. (Pl.'s Dep. 60-61, 99, 196) Plaintiff also alleges that she was called the same epithet "maybe twice" by Dr. Hart. (Pl.'s Dep. 169) There were no witnesses to either of these incidents. (Pl.'s Dep. 61, 170) At one point in her deposition testimony, Plaintiff states that she did not report these comments to her supervisors (Pl.'s Dep. 191), but, at another point, she also states that she reported the statements to Defendant Nelson. (Pl.'s Dep. 170)
Plaintiff filed her initial Complaint on May 16, 2002. On May 22, 2002, Plaintiff filed an Order to Show Cause demanding that Defendants transfer her to a different hospital location and restraining the Defendants from imposing any restraints on Plaintiff, harassing her or otherwise disturbing her peace. This Order to Show Cause was denied by the Honorable Barbara S. Jones on May 24, 2002. Defendants Raboy-Braunstein, Hart, Nelson, Persaud, Refen, Bellevue Hospital, and the New York City Health & Hospital Corporation all filed a Motion to Dismiss pursuant to Rule 12(b)(6) on August 19, 2002. Plaintiff then filed an Amended Complaint on February 3, 2003, which Defendants answered on February 27, 2003. Defendants then withdrew their Motion to Dismiss. Discovery was conducted, and the case was reassigned to the undersigned on September 28, 2004. Defendants subsequently filed this Motion for Summary Judgment. Plaintiff explicitly withdrew some of her claims during the briefing of the Motion for Summary Judgment, specifically, her Title VII claims against the individually named Defendants, and her § 1981 municipal liability claim.*fn13
Summary judgment may be granted where it is shown that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view all evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in his or her favor. See Tufariello v. Long Island R.R., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). "Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in his favor." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). "The motion 'will not be defeated merely . . . on the basis of conjecture or surmise.'" Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991)); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) ("[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts." (internal quotations omitted)).
The materiality of the facts considered by the Court will be governed by substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment, the Court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. See Castro v. Met. Transp. Auth., 04 Civ. 1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006); Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990). A court's goal should be to "isolate and dispose of factually unsupported claims." Celotex Corp., 477 U.S. at 323-24.
While courts are to be "particularly cautious" about granting summary judgment to employers in cases where the discriminatory intent of the employer is contested, Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." AbduBrisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Though district courts must pay careful attention to affidavits and depositions which may reveal circumstantial proof of discrimination, see Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994), courts are not to "treat discrimination differently from other ultimate questions of fact." Abdu-Brisson, 239 F.3d at 466 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
B. Plaintiff's Title VII Claims
Plaintiff alleges three different Title VII claims against the institutional Defendants in this case: (1) purposeful racial discrimination; (2) a hostile working environment; and (3) retaliation. Plaintiff dropped her Title VII claims against the individual Defendants ((Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. 1 n.1 ("Pl.'s Opp'n Mem.")), as Title VII does not authorize suits against individuals. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).*fn14
1. Purposeful Racial Discrimination
a. Prima Facie Case of ...