The opinion of the court was delivered by: Harold Baer, Jr., District Judge
On July 30, 2002, Merl Daniels, ("Daniels" or "Plaintiff") filed a complaint against her former employer Health Insurance Plan of Greater New York ("HIP"), three HIP employees, Diane McGuire ("McGuire"), Artistine Terrell ("Terrell"), and Yolanda Jimenez ("Jimenez") (collectively "HIP Defendants"), Local 153, Local 153 representative Aida Pagan ("Pagan"), and the Office and Professional Employees International Union AFL-CIO ("OPEIU") (collectively "Union Defendants"), that alleged race, national origin discrimination, and hostile work environment claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., as well as failure to accommodate her disability pursuant to the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff also brings a 42 U.S.C. § 1983 claim as well as a claim for intentional infliction of emotional distress against all Defendants and a failure to represent claim against the Union Defendants. The case was assigned to Chief Judge Michael Mukasey and upon his departure, reassigned to me.
On November 12, 2004, HIP moved to dismiss the intentional infliction of emotional distress and the 42 U.S.C. § 1983 claims brought against it. McGuire, Terrell, and Jimenez also moved to dismiss all claims alleged against them. Chief Judge Mukasey granted the motion in its entirety. Daniels v. HIP, 2005 WL 1138492 (S.D.N.Y. May 12, 2005). As a result, no claims remain against the individual defendants and only the Title VII and ADA claims remain against HIP. The Union Defendants did not join the motion to dismiss thus the Title VII, 42 U.S.C. § 1983, intentional infliction of emotional distress and failure to represent claims remain.
HIP and the Union Defendants have now moved for summary judgment with respect to the remaining claims. For the reasons stated below, the summary judgment motion is GRANTED as to all defendants.
The facts stated below are undisputed, unless stated otherwise. On or about September 10, 1990, Merl Daniels, an African-American female, was hired as a secretary in HIP's Marketing Department. Merl Daniels Affidavit ("Daniels Aff.") ¶ 2. In that role, her duties include typing, filing, answering telephones and other administrative tasks for the sales representatives in the Marketing Department. Declaration of Artistine Terrell in Support of Def. HIP's Mot. for Summ. J. ("Terrell Decl."), Ex. 1, Daniels' Job Description. As a clerical employee, Daniels was a member of the Office and Professional Employees International Union, Local 153 ("Union") and subject to the Collective Bargaining Agreement between the Union and HIP that governed, among other things, promotions, vacations, sick leave, and salary. Declaration of Diane McGuire in Support of Def. HIP's Mot. for Summ. J. ("McGuire Decl."), Ex. 1.
1. Daniels' Employment at HIP
During the course of her employment, Daniels reported to two administrative managers.
The first, Artistine Terrell ("Terrell"), an African-American female, supervised Daniels from 1990 through 2000. Terrell Decl. ¶ 3. From May 2000 until Daniels' termination in 2002, she reported to Yolanda Jimenez ("Jimenez"), a Hispanic female. Yolanda Jimenez Declaration ("Jimenez Decl.") at ¶ 3. Daniels alleges that these supervisors continuously harassed her by assigning her a disproportionately heavy workload and failing to accommodate her disability*fn1 despite her request that they do so. In addition, Daniels reports that she overheard Jimenez refer to her as a "nigger" on two different occasions.
Further, Daniels claims that while she requested and was denied a promotion in 1998, her Hispanic co-workers received favorable treatment and were promoted ahead of her despite their fewer years of service. Daniels reports that Pagan, one of her union representatives, failed to act in good faith and fairly represent her, despite her knowledge of the harassment and discrimination to which Plaintiff was allegedly subjected.
HIP counters that Daniels was an insubordinate and disruptive employee, specifically towards supervisor Jimenez. The Plaintiff was unable to complete work assignments in a timely fashion and was eventually terminated for cause. Although Plaintiff disputes these reports of insubordination on the basis that "no documentary proof has been provided," unfortunately for Plaintiff, this is simply untrue. Jimenez recounts in her declaration four instances -- on or about September 26, 2000, April 2, 2001, July 17, 2001, and February 6, 2002 -- when Daniels was uncooperative and insubordinate. Jimenez Decl. ¶ 9, 11, 15, 16. Verbal counseling meetings followed these incidents where Daniels was warned that "[i]nsubordination is grounds for immediate dismissal," see, e.g., id., Ex. 1, Memo from Yolanda Jimenez to Merl Daniels (Sept. 26, 2000), and each meeting was memorialized in a memo to the Plaintiff, with a copy sent to Plaintiff's file. Id., Exs. 1-4.
Immediately following the February 6, 2002 incident, Daniels was given a formal warning at a meeting attended by Daniels, Jimenez, Mercedes Veras ("Veras"), one of Daniels' union representatives, and Diane McGuire ("McGuire"), Assistant Director of Human Resources. Daniels was again informed that her "inappropriate behavior will not be tolerated, and any recurrence will result in further disciplinary action up to and including termination of your employment with HIP Health Plan of New York." Id., Ex. 4, Memo from Yolanda Jimenez to Merl Daniels (Feb. 7, 2002).
On April 11, 2001, at Daniels' behest, the Union set up a grievance meeting where Daniels, Jimenez, Veras, McGuire, Pagan, and Allyson Zahl, a Human Resources employee, were in attendance. McGuire Decl. ¶ 12. At the meeting, Daniels' recounted her complaints and received HIP forms whereby she could request an accommodation due to her physical limitations, which she filled out following the meeting. Id., Ex. 10. HIP claims that this is the first time Daniels requested accommodation for her physical ailments. Id. ¶ 14.
Daniels was suspended on or about April 18, 2002 when a HIP employee reported that Daniels had threatened to physically harm Jimenez. Id. ¶ 18. After an internal investigation substantiated the allegations in the report, Daniels was fired from HIP on April 22, 2002. Id., Ex. 13. HIP's Workplace policy, a copy of which was provided to every employee, explains that a legitimate threat to a co-worker is grounds for termination of employment. Id., Ex. 12 at 5.
2. Daniels' Discrimination Complaints
On April 4, 2001, Daniels filed a complaint with the New York State Division of Human Rights ("NYSDHR") that alleged that HIP discriminated against her on the basis of race, national origin, and disability. McGuire Decl., Ex. 6. She amended this complaint in July 2001 to add a harassment and failure to promote claim, id., Ex. 7, and again in April 2002 to add age discrimination and emotional distress claims. Id., Ex. 9. In the interim, during her amendments to the first complaint, she filed a second complaint with the NYSDHR in March 2002 that alleged harassment based on HIP's failure to accommodate her disability. Id., Ex. 8. Upon Plaintiff's request, both complaints pending before the NYSDHR were forwarded to the Equal Employment Opportunity Commission ("EEOC"). After receipt of a right to sue letter from the EEOC on July 5, 2002, her pro se complaint was filed with this Court on July 30, 2002. Declaration of Seema Misra in Support of Def. HIP's Mot. for Summ. J. ("Misra Decl."), Ex. 4. The complaint was amended in September 2004 when Daniels retained counsel. Id., Ex. 1.
Even now, the complaint is far from crystal clear and I have done my best to tie the conduct complained of to the race, national origin, and disability claims made to the EEOC, the agency which saw Plaintiff last. It appears that Daniels claims she suffered while employed in a hostile work environment and that the hostile work environment was prompted by race, national origin, and disability discrimination. She was yelled at by her Hispanic supervisor and assigned a heavier workload than her Hispanic co-workers, despite providing HIP with a doctor's note that stated she was unable to engage in heavy lifting due to the herniated discs in her neck and back. In fact, Daniels claims that HIP failed to accommodate her disabilities in violation of the ADA. In addition, Daniels alleges that Hispanic workers were promoted over her, again as the result of race and national origin discrimination. Further, it appears she claims the Union Defendants -- Local 153, OPEIU, and union representative Pagan -- failed to adequately represent her again due to her race, national origin, and because she suffered from a disability. These activities culminated in Daniels' alleged wrongful termination from HIP accomplished, according to the Plaintiff, on the same improper basis -- race, national origin, and disability discrimination on the part of her employer.
Pursuant to Federal Rule of Civil Procedure 56, the movant on a motion for summary judgment must establish that there is no genuine issue of material fact and that the undisputed facts are sufficient to warrant judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A disputed issue of material fact alone is insufficient to deny a motion for summary judgment, the disputed issue must be "material to the outcome of the litigation," Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); See also Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment."). In ruling on a summary judgment motion, the Court resolves all ambiguities and draws all inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
It is well-known that in employment discrimination cases, where it is necessary to explore an employer's intent and motivation, summary judgment may not be appropriate. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). Consequently, affidavits and deposition testimony must be scrutinized for circumstantial evidence, which if believed, would support a finding of discrimination. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). That fact notwithstanding, Plaintiff must still produce sufficient evidence in support of her claim, so that a rational juror could find in her favor. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all [discrimination] cases.").
A. Hostile Work Environment
Plaintiff alleges that she was harassed by HIP employees as a result of her race, national origin, and disability. To state a claim for hostile work environment, the plaintiff must allege that her work environment was abusive. Harris v. Forklift, 510 U.S. 17, 22 (1973). Specifically, plaintiff must show that she is 1) a member of a protected class, 2) suffered unwelcome harassment, 3) was harassed because of her membership in a protected class, and 4) the harassment was sufficiently severe or pervasive to alter conditions of her employment and create an abusive work environment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 65 (1986). The court looks at the totality of the circumstances to determine harassment -- the frequency and severity of the conduct, whether the conduct was physically threatening or humiliating, and whether the behavior interferes with an employee's performance. Harris, 510 U.S. at 23.
To succeed, the Plaintiff must show that "either a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [his] working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal quotation marks omitted). This standard is demanding, and requires proof that the conduct was offensive, pervasive and continuous. See, e.g., Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 62-63 (2d Cir. 1992); Murphy v. Bd. of Educ. of the Rochester City. Such. Dist., 273 F. Supp.2d 292, 312 (W.D.N.Y. 2003) (holding that "difficult or stressful working conditions are not tantamount to a hostile work environment."). While true that Daniels, an African-American female, is a member of a protected class, she does not satisfy the hostile work environment standard.
As a preliminary matter, in neither the Amended Complaint or in any complaint to the NYSDHR does Daniels allege any instances of abusive behavior or harassment by the Union or the individual "Union" Defendant. In other words, there is nothing in these complaints to suggest that any of the Union Defendants contributed to the hostile work environment Plaintiff contends she endured while employed at HIP, thus summary judgment is granted as to these defendants.
Daniels claims that she was subjected to continuous harassment based on her race, national origin, and disability by HIP employees. In order to survive summary judgment, Daniels must demonstrate a basis to hold HIP vicariously liable for the conduct that created the hostile environment. See, e.g., Kotcher v. Rosa & Sullivan Appliance Center Inc., 957 F.2d 59, 63 (2d Cir. 1992). Employer vicarious liability for a Title VII hostile work environment violation can be established if the individual responsible for the harassing conduct was (or is) the plaintiff's supervisor, with immediate authority over the employee. Mack v. Otis Elevator Co., 326 F.3d 116, 125 (2d Cir. 2003). That is the case here.
While employed as a secretary at HIP, Daniels developed medical problems that included two herniated discs as well as carpal tunnel syndrome, conditions that made it difficult for her file documents and write down messages. Daniels Aff. ¶¶ 7-8. Despite her disabilities, Daniels alleges that her supervisors required her to file documents and assigned her a heavy workload, all of which contributed to an abusive work environment. Id. ¶ 4.
Further, Daniels testified that she heard her supervisor, Jimenez, use a racial slur against her on two occasions. The first incident she recounts was a conversation she overheard in the bathroom between Jimenez and Marta Cotto, a co-worker in the Marketing Department. Daniels testified as follows:
I was in the bathroom one day, and she [Jimenez] didn't know I was in there, with Marta Cotto; and she said, "Tell me if that nigger Merl doesn't answer the phone, Wes's phone." They couldn't see me because it was like a --- they just couldn't see me.
Merl Daniels Deposition ("Daniels Dep.") at 154:3-8 (Dec. 14, 2005). Daniels testified that this was not the first time that Jimenez had used that slur against her.
Q: Was that the first time you heard Yolanda use the "N" word?
A: She used it before, whenever she accused me of not answering the phone. There was one day the phones were ringing and I was on a call, and Marta Cotto was standing there -- . . . So she said it very low, very low, "That nigger didn't answer the phone?" She didn't know I heard her. . . . So she said, "That nigger Merl, that nigger didn't answer Wes's phone?"
Id.. at 155:3-21. Jimenez denies ever using the term "nigger" to refer African-Americans or Daniels. Jimenez Decl. ¶ 18.
While these incidents, if true, are doubtlessly insulting and inappropriate, this Circuit has held that sporadic incidents of this nature are not enough to constitute a hostile work environment. In other words, "there must be 'more than a few isolated incidents of racial enmity,' meaning that '[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.'" Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) (internal citations omitted). We do not have that level of racial commentary here.
While Daniels may have been subjected to unfair treatment, the record does not support her claim that HIP employees subjected her to the type of severe and offensive harassment necessary to satisfy the hostile work environment standard. As a result, summary ...