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Lee v. HealthFirst

March 1, 2007

ALICE LEE, PRO SE PLAINTIFF,
v.
HEALTHFIRST, INC., A/K/A HF MANAGEMENT, INC., A/K/A A PLUS, INC., DEFENDANT.



The opinion of the court was delivered by: Theodore H. Katz, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Alice Lee ("Plaintiff"), a fifty-one-year-old Chinese female, originally from Taiwan, brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("the ADEA"), against her former employer HealthFirst, Inc. ("Defendant"). Plaintiff, who was a sales manager for HealthFirst, claims she was subjected to unlawful discrimination because of her age, gender, race, and national origin, both in the individual terms and conditions of her employment, and as a member of a sales team assigned to solicit business in Asian-American communities. Plaintiff also asserts claims under Title VII for a hostile work environment and unlawful retaliation. Defendant has asserted a counterclaim for defamation based on comments allegedly made by Plaintiff about HealthFirst's business practices.

Pending before the Court is Defendant's Motion for Summary Judgment, with respect to all of Plaintiff's claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure, as well as Plaintiff's Motion for Summary Judgment on Defendant's defamation claim. For the reasons that follow, the Court concludes that Defendant is entitled to summary judgment and, because all of the federal question claims are to be dismissed, the Court declines to exercise supplemental jurisdiction over Defendant's state law defamation claim.*fn1

FACTUAL BACKGROUND

Plaintiff's contentions are rambling and, at times, difficult to discern, but are set forth most clearly in the Second Amended Complaint and its attachments. The Court therefore relies heavily on these documents, while noting that at the summary judgment stage, a plaintiff cannot rely merely on the pleadings, but must provide competent evidence in support of her claims.

I. Plaintiff's Employment with HealthFirst

Plaintiff is a Chinese female, over the age of forty, whose nationality is Taiwanese. (See Amended Complaint, filed Feb. 28, 2005 ("Am. Compl."), at 3; Defendant's Rule 56.1 Statement of Undisputed Facts, dated Sept. 25, 2006 ("Def.'s 56.1 Stmt."), ¶ 1.) Defendant HealthFirst sells and markets health insurance, including government-funded programs such as Medicaid and Medicare. (See Def.'s 56.1 Stmt. ¶ 2.)

Plaintiff was hired by Defendant on July 26, 1999 as a sales representative. (See Def.'s 56.1 Stmt. ¶ 3.) The job of a sales representative includes signing up new applicants, establishing sales sites, and organizing events to increase enrollment in the various insurance programs. (See Affidavit of Stephanie Wu in Support of Defendant's Motion for Summary Judgment, dated Sept. 19, 2006 ("Wu Aff."), ¶ 6, attached as Exhibit ("Ex.") 3 to Declaration of Elissa Hutner, Esq., dated Sept. 25, 2006 ("Hutner Decl.").)

In late 2002, Defendant established two bilingual sales teams, under the supervision of Associate Director of Sales Stephanie Wu, to focus on New York City's Asian-American communities.*fn2 (See Def.'s 56.1 Stmt. ¶ 5; Wu Aff. ¶ 4.) Each team was to have its own manager, and Wu recommended Plaintiff and another sales representative, Mike Lin, for the positions. (See Def.'s 56.1 Stmt. ¶¶ 5-7; Wu Aff. ¶ 10.) Lin was promoted first (see Def.'s 56.1 Stmt. ¶ 8; Wu Aff. ¶ 12), and four months later, on April 28, 2003, Plaintiff was promoted (see Wu Aff. ¶ 13). Plaintiff earned an annual salary of $50,000, and was eligible to participate in a corporate bonus compensation program. (See Def.'s 56.1 Stmt. ¶¶ 8-9.)

Plaintiff alleges that shortly after her promotion, she became aware of discrepancies between the terms and conditions of her position and those of the managers of other teams. (See Second Amended Complaint, dated July 28, 2005 ("Second Am. Compl.") ¶ 2.) Specifically, Plaintiff alleges that, unlike other sales representatives, she never received managerial training. (See "Other Bias and Unequal Treatments" ("Other Bias"), attached to Second Am. Comp. at 9.) Plaintiff also alleges that other newly promoted male sales representatives were given the latest model company car and a "standard managerial package" within one week of their promotion, while she never received managerial benefits and was given "a very bad shape and dangerous condition company car -- which failed to pass inspection." (See id. at 9-10.) Whenever Plaintiff approached Wu about these disparities, Wu told her that she would "take care of it." (See Second Am. Comp. ¶ 2.) Wu never did so, according to Plaintiff, despite "assur[ing] [Plaintiff] that she [would] honor those promises and those benefits." (Id.) Plaintiff also alleges that she was never given a raise on her base salary, even "after almost five years consecutive excellent performance in the company," while others received yearly raises of at least five to seven percent on their base salaries. (See Other Bias at 10.)

Plaintiff further alleges that, beginning in June 2003, her sales team began complaining about its isolation from other teams. (See Second Am. Compl. ¶¶ 3-4.) Specifically, team members complained about a lack of division-wide meetings and Defendant's failure to provide them with the company's rules and regulations. (See id. ¶ 4; Instances of Discrimination & Unequal Treatments ("Instances of Discrimination"), attached to Second Am. Compl., ¶ 5A.)*fn3 The team did not want to be classified as the "Asian" team and "wanted to be actively involved in the company's events and activities." (Second Am. Compl. ¶ 4; see also Instances of Discrimination ¶ 7.) Plaintiff alleges that the team was prevented from "participat[ing] in any company event[s] while the other teams [were not]." (See Instances of Discrimination ¶ 3.)

Over the course of the summer of 2003, Wu and Plaintiff frequently clashed over Wu's management of the two "Asian" sales teams, and HealthFirst's marketing practices. (See Def.'s 56.1 Stmt. ¶ 15; Second Am. Compl. ¶¶ 3-6.)*fn4

The first major conflict occurred on August 17, 2003, when Plaintiff sent an e-mail to Wu stating that she had closed a marketing site at a clinic in Flushing, Queens, without consulting Wu. (See Wu Aff. ¶ 18; E-mail from Alice Lee to Stephanie Wu, dated Aug. 17, 2003, attached as Ex. 2 to Wu Aff.) Wu directed Plaintiff to reopen the site, and told Plaintiff that she could no longer contact hospital officials directly. (See Wu Aff. ¶ 18.) Defendant claims that despite the directive that Plaintiff not contact hospitals, in the following weeks she continued to copy hospital administrators on internal memos she sent to HealthFirst management. (See Def.'s 56.1 Stmt. ¶ 14; Wu Aff. ¶¶ 19-21.)

On September 16, Plaintiff sent Wu an e-mail, copied to Wu's supervisor, Vice-President of Sales Gilbert Marchany, complaining that Wu did not answer her telephone "even though [she was] available to answer." (See E-mail from Alice Lee to Stephanie Wu, dated Sept. 16, 2003, attached as Ex. 5 to Wu Aff.) Also that day, Plaintiff sent a two-page memo to Marchany and Wu in which she outlined several complaints about Wu's management practices, including "unfair competition in and between the Chinese team[s]" and a "double standard" in Wu's treatment of the two Asian teams. (See Memorandum of Alice Lee to Gil Marchany and Stephanie Wu, dated Sept. 16, 2003, attached as Ex. 6 to Wu Aff.)

The next day, Marchany and Wu met with Plaintiff. (See Second Am. Compl. ¶ 8.) Plaintiff claims she again raised the issue of the disparate treatment she and her team had allegedly received. (See id.) Plaintiff said she "specifically requested to open proper communication channels for all company's notice and announcement, and asked not to be isolated from other teams in the company, plus to have routine team and division meetings and to be informed of all company policy and announcements." (Id.) Plaintiff also brought up the alleged disparate treatment regarding her managerial benefits. (See id.) According to Plaintiff, Marchany directed Plaintiff "to not communicate directly with him anymore," and said, "I don't care how your team operates, you Chinese know how to deal with your own people."*fn5 (Id. ¶ 9; see also Instances of Discrimination ¶ 5B.) Plaintiff alleges that other teams were afforded direct access to senior company officials and had their grievances and "similar issues rapidly resolved without any problems." (See Other Bias at 11; Instances of Discrimination ¶ 5B.)

On or about September 19, Marchany issued a company-wide request for employees to come forward with any information about improper business practices at HealthFirst. (See Second Am. Compl. ¶ 10.) Shortly thereafter, Marchany received a telephone call from a member of Plaintiff's sales team, who alleged that there was fraudulent activity occurring at HealthFirst. (See Def.'s 56.1 Stmt. ¶ 30.) On September 22, Marchany and George Huge, Director of Outreach Events, met with several members of Plaintiff's sales team, outside of the office, to discuss their concerns about alleged misconduct at HealthFirst, and referred the information they received to HealthFirst's Special Investigations Unit ("SIU"). (See id.; Second Am. Compl. ¶ 11.) Plaintiff alleges that after that meeting, her team members "experienced different levels of harassment by the Defendant . . . ." (Second Am. Compl. ¶ 11.)

On or about September 21, Plaintiff sent a three-page letter to Marchany and Joseph Chasse, Vice-President of Marketing, that contained fifteen examples of alleged "misconduct" at HealthFirst. (See "Classified Letter prepared especially for Gil Marchany and Joe Chase" ("Classified Letter"), attached as Ex. 6 to Hutner Decl.) In the letter, Plaintiff alleged: (1) that sales representatives were improperly resubmitting client recertification letters to increase enrollments; (2) that Wu had engaged in a conflict of interest by having lunch with a Department of Health auditor; (3) that "someone"*fn6 had put the "Chinese Team Members" in competition with each other, resulting in a "totally outrageous and extremely unprofessional" situation; (4) that Wu had threatened sales representatives by saying "if you don't make numbers you don't deserve to get paid"; (5) that a sales representative charged a client to fill out a recertification form; (6) that a sales representative "solicits and sells life insurance to clients on behalf" of another company; (7) that Wu called a new sales representative to "harass her just because the newly hired rep did not greet her on the street"; (8) that Wu was improperly collecting referral fees for new hires; (9) that Wu threatened to fire "the entire team" so she could earn new referral fees; (10) that Wu published an incorrect sales site schedule; (11) that Wu forced sales representatives to work in high crime areas and under elevated subway tracks; (12) that Wu brought her dog to work and let it sit in an air conditioned car while sales representatives worked in hot weather; (13) that Wu "forced" sales representatives to not disclose the terms of the insurance application to clients; (14) that Wu did not hold division meetings; and (15) that Wu did not allow employees to "express[] their thoughts and ask questions." (See id.) Plaintiff concluded the letter by posing the rhetorical question: "Do we really absolutely necessary need to set a position especially for this Director [Wu], or do we have another alternative in our mind?" (See id. at 3.)

While her team was meeting with Marchany and Huge on September 22, Plaintiff was called to a meeting with Wu and Chasse. (See Second Am. Compl. ¶ 12.) At the meeting, Plaintiff once again voiced complaints regarding internal management at HealthFirst and alleged illegal practices. She contends that she also complained about the alleged disparate treatment she had received with regard to her promotion. (See id.)*fn7 Plaintiff alleges that her complaints were not addressed, and that instead, she "was warned not to get involved in any protest activities with the team again . . . ." (See id.)

Over the course of the next several weeks, Plaintiff sent several memos expressing her dissatisfaction with Wu and another HealthFirst manager. (See Memorandum of Alice Lee to Lynda Bedeau, dated Sept. 26, 2003, attached as Ex. 9 to Wu Aff. (claiming that enrollment forms were "removed by Stephanie and disappeared"); Memorandum of Alice Lee to Stephanie Wu, dated Oct. 9, 2003, attached as Ex. 10 to Wu Aff. (challenging Wu's instructions for entering the team's work schedule into a spreadsheet program); E-mail of Alice Lee to Pradeep Kumar, dated Oct. 22, 2003, attached as Ex. 12 to Wu Aff. (accusing Kumar (a sales training coordinator) of making a false accusation that Plaintiff's sales representatives were not working when he conducted a field visit); Memorandum of Alice Lee to Stephanie Wu, undated, attached as Ex. 17 to Wu Aff. (stating that she and her team would not sign a form given to them by Wu unless they "kn[ow] the legitimacy of the matter").) During this period, Plaintiff also contacted HealthFirst's Legal Unit about her allegations of wrongdoing in the Sales Department. (See Second Am. Compl. ¶¶ 14-17.)

On or about October 17, 2003 SIU completed its investigation into the allegations made in Plaintiff's "Classified Letter" and determined that it was unable to substantiate any complaints of improper sales practices. (See Def.'s 56.1 Stmt. ¶ 38.)*fn8 On or about October 24, Plaintiff was called to a meeting with Chief Operating Officer James Boothe, Marchany, and Wu. (See id. ¶ 39.) Boothe told Plaintiff that the SIU investigation had not found any wrongdoing (see id. ¶ 40), that Plaintiff had to work with Wu, not against her (see id. ¶ 42), and "in words or substance" that he did not want to revisit the issues again (see id. ¶ 43). Plaintiff stated that she did not believe the results of the investigation (see id. ¶ 41; Lee Dep. at 160), and interpreted Boothe's remarks as a warning (see Def.'s 56.1 Stmt. ¶ 44; Lee Dep. at 169).*fn9

On October 23 or 24, Wu spoke to Plaintiff about staffing a sales event that upcoming Sunday, October 26. (See Def.'s 56.1 Stmt. ¶ 45; Lee Dep. at 195-96.) In a memo to Wu, which was copied to Marchany and others, Plaintiff accused Wu of unprofessional and unreasonable conduct for giving Plaintiff last-minute notice of the October 26 event and failing to provide enough information about the event. (See Memorandum of Alice Lee to Stephanie Wu, dated Oct. 25, 2003, attached as Ex. 14 to Wu Aff.) Plaintiff stated in the memo that she and her team would attend the event "if and only if advance notice is given in a reasonable manner." (See id.) HealthFirst staff did not attend the October 26 event.

On October 27, Wu sent a memo to Marchany explaining the issues about the October 26 event. (See Memorandum of Stephanie Wu to Gil Marchany, dated Oct. 27, 2003, attached as Ex. 15 to Wu Aff.) Wu wrote that she had acknowledged the late notice to Plaintiff, and told her it was not mandatory that the event be staffed. Nevertheless, since Plaintiff said she could staff the event, Wu told the event organizers to expect a HealthFirst representative. (See id.) However, no HealthFirst representative appeared at the event.

On October 30, Wu sent another memo to Marchany and Boothe outlining the problems she had been having with Plaintiff since August. (See Memorandum of Stephanie Wu to Gil Marchany and James Boothe, dated Oct. 30, 2003, attached as Ex. 1 to Wu Aff.) On the same day, Plaintiff questioned Wu about her quarterly bonus check and warned that if she did not receive the check, she "[would] take necessary action against the company (EEOC)." (Second Am. Compl. ¶ 29.) Plaintiff also sent Wu an e-mail, copied to Boothe and Marchany, asking about her bonus check.*fn10 (See Oct. 30 E-mail.) On November 3, Plaintiff sent a letter to Boothe. (See Second Am. Compl. ¶ 31.) In the letter, Plaintiff inquired about her bonus check, and said she hoped she was not being retaliated against because of her "good faith report and suggestion to the company." (See id.; Letter of Alice Lee to James Boothe, dated Nov. 3, 2003 ("Nov. 3 Ltr."), attached as Ex. 7 to Hutner Decl.) In the letter, Plaintiff claimed that by reporting to Wu, she had ended up under the "supervision of a communist member from China." (See Nov. 3 Ltr.)

From November 1 to November 7, Plaintiff went out on sick leave. (See Def.'s 56.1 Stmt. ¶ 62.) While Plaintiff was on leave, Wu arranged for three days of onsite marketing at the Star Side Drug Store in Flushing, Queens. (See Wu Aff. ¶ 65.) On November 7, Wu assigned Pamela Hong to work at the Star Side sales site. (See id. ¶ 67.) When Hong called Wu from the site to report her attendance, she asked Wu to deliver a marketing table to her. Wu told Hong she would be there in twenty minutes. (See id.) Hong also called Plaintiff to report her attendance at the site. (See Lee Dep. at 205.) Plaintiff told Hong to wait until Plaintiff returned to work and she "would check that out to see what was the problem." (See id.) Plaintiff believed there would be a problem with the table because it would block the building entrance, and did not believe that the store manager could authorize the table. (See id. at 207.) She also believed that since she opened the site, she was responsible for what happened there. (See id. at 210.) Plaintiff also claims that the store's manager called her and discussed the marketing table. (See id. at 209.) Between the time Plaintiff spoke to the manager and the time Wu arrived at the store, the manager decided to cancel the marketing dates. (See Wu Aff. ¶ 72.)

On November 10, at a meeting Plaintiff attended with Marchany, Wu, and Allison Gundel, Manager of the Human Resources Department, Plaintiff's employment was terminated. (See Second Am. Compl. ¶¶ 7, 32). When Plaintiff asked Marchany for the reason for her termination, according to Lee, Marchany answered, "no reason is my reason, because you don't deserve the bonus . . . ." (Id.)*fn11

According to Plaintiff, Marchany continued to mumble other words. When Plaintiff asked him to speak louder, Marchany yelled, "You are wors[e] than my mother, you Chinese old woman. Now get out of my office . . . . " (Id.)

II. Post-Termination Activity

A. Plaintiff's Employment with CarePlus

In November 2003, Plaintiff was hired by CarePlus, an insurance company that competes with HealthFirst. On or about November 20, Wu notified Sean Nataro, Associate General Counsel for HealthFirst, that she believed Plaintiff had been calling HealthFirst employees during business hours and offering them positions with CarePlus. (See Affirmation of Sean Nataro in Support of Defendant's Motion for Summary Judgment, dated Nov. 8, 2006 ("Nataro Aff."), attached as Ex. 5 to Def.'s Reply Aff., ¶ 2.) Nataro wrote a letter to the President of CarePlus and asked that she look into the matter and ensure that Plaintiff cease contact with HealthFirst employees. (See id. ¶ 4; Letter of Sean Nataro to Karen Ajmani, dated Nov. 20, 2003, attached as Ex. 6 ("Nataro Ltr.")*fn12 to Def.'s Reply Aff.) Nataro stated that his reason for writing the letter was "to protect the business interests of Healthfirst, and not to retaliate against Alice Lee." (See Nataro Aff. ¶ 5.)

In response to Nataro's letter, CarePlus stated that "we have counseled Ms. Lee about initiating any contact with Healthfirst employees, and have directed her not to call or otherwise contact Healthfirst staff." (See Letter of Evelyn Huang to Sean Nataro, dated Dec. 3, 2003 ("Huang Ltr."), attached as Ex. 6 to Def.'s Reply Aff.)

B. EEOC Complaint

On December 29, 2003, Plaintiff filed a complaint with the EEOC against HealthFirst alleging race, sex, age, and national origin discrimination, as well as unlawful retaliation. (See Am. Compl. at 4.) After an investigation, the EEOC dismissed Plaintiff's complaint and issued Plaintiff a Right to Sue Letter. (See id. at 5; EEOC Letter of Dismissal and Notice of Rights, dated Aug. 5, 2004, attached to Compl.)

C. Marchany's Meeting With Plaintiff's Former Sales Team

Plaintiff claims that after HealthFirst terminated her employment, Marchany and Huge learned that other employees wanted to leave the company due to "unfair treatment and ongoing harassment." (See Other Bias at 10.) Marchany met with Plaintiff's former team members,*fn13 and allegedly "pointed to each and everyone in a close distance and yelled at them and asked 'You want to go too? Go now.' When he heard [] no response, he raised his voice and pointed his finger and asked each and everyone at the meeting 'You, Chinese people, don't play with me. You, you, you stay or go.'" (See id. at 10-11.) Plaintiff claims that those who attended this meeting were subsequently fired or quit their jobs. (See id. at 11; Second Am. Compl. ¶ 11.)

D. Press Conference

On May 4, 2005, Plaintiff and two other former HealthFirst employees held a press conference that was attended by reporters for local Chinese media. (See Defendant's Answer and Counterclaim, dated May 22, 2005 ("Def.'s Counterclaim"), ¶ 20.) Defendant alleges that at the press conference, Plaintiff made "several false and defamatory statements" about HealthFirst. (See id. ¶ 21.) Defendant contends that "[e]ach of these statements were knowingly false and defamatory, and made for the purpose of impugning HeathFirst's reputation and disparaging HeathFirst's business integrity in the Chinese [c]ommunity." (Id. ¶ 28) Articles describing the press conference were published in the "Ming Pao Daily News" and the "Sing Tao Daily." (See id. ¶ 20; Chinese Employees Accuse HealthFirst of Discrimination, Ming Pao Daily News, May 5, 2005, at A9, attached as Ex. 4 to Def.'s Reply Aff.; Former Employees of HealthFirst Accusing the Employer of Discrimination, Sing Tao Daily, May 5, 2005, at B4, attached as Ex. 4 to Def.'s Reply Aff.)

Plaintiff defends her statements at the press conference, asserting that "the statements made were true and based on [Plaintiff's] knowledge and belief but also was what she personally observed from date one." (See Plaintiff's Reply to Counterclaim, dated Mar. 8, 2006 ("Pl.'s Counterclaim Reply"), ¶ 6.)

DISCUSSION

I. Standard for Summary Judgment

Summary judgment is appropriate only when the submissions of the parties, taken together, "show that 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 moving party has the burden of showing an absence of evidence to support the non-moving ...


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