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Johnson v. County of Nassau

March 15, 2007


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiff Clifford Johnson ("Plaintiff") filed the present action against defendants County of Nassau,*fn1 Nassau County Health Care Corporation ("NCHCC"), Nassau University Medical Center ("NUMC"), Sharon Popper ("Popper"), Richard Turan ("Turan"), Michael H. Mostow ("Mostow"), and Karle Kampe ("Kampe") (collectively, "Defendants") claiming that he was discriminated against based on his race and in retaliation for his complaints of race discrimination. Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons stated below, the motion is granted in part and denied in part.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

NCHCC is a Public Benefit Corporation created by the New York State Legislature. In or about September 1999, the legislature authorized NCHCC's acquisition of certain assets and operations of Nassau County relating to the provisions of healthcare services, including NUMC. Pursuant to the New York law, County employees performing functions associated with NUMC become NCHCC employees.

I. Plaintiff's Employment

Plaintiff is an African-American male who was hired by Nassau County in 1983 as a hospital aid. In 1997, he was promoted to "Lead Painter" and also held an "informal" position leading the Office of Diversity (the "Office of Diversity" or the "Office"). When NCHCC was formed, Plaintiff became an employee of NCHCC.

According to Plaintiff, the Office of Diversity was officially opened in July 1999 and became a recognized department within the hospital. At that time, Plaintiff was promoted to Chairman and Director of the Office of Diversity. Thereafter, in June 2001, Plaintiff was also named as a Community Service Representative. In Plaintiff's role in the Office of Diversity and as a Community Service Representative, Plaintiff acted as a liaison between the employees and NCHCC upper management regarding employee complaints of discrimination. Plaintiff and his staff, inter alia, interviewed employee complainants, conducted fact-finding inquiries, and prepared reports pertaining to matters investigated for upper management. It is undisputed that in these roles, Plaintiff brought hundreds of instances of alleged discriminatory treatment to NCHCC's attention. Plaintiff also performed community outreach activities.

II. Plaintiff's Claims of Discrimination/Retaliation

Plaintiff claims that despite the fact that Defendants had created the Office of Diversity, Plaintiff and his staff were discouraged from raising issues concerning discrimination in the workplace. In this regard, Plaintiff claims that Defendants only created the Office of Diversity because they were receiving funds and grant monies from the State that were intended for fostering diversity programs at NUMC; however, Defendants never intended to permit the Office of Diversity to fulfill its purpose and did everything in their power to ensure that the Office could not function properly. For example, Plaintiff alleges that he was consistently berated and his employment threatened for reporting discriminatory complaints. Plaintiff also claims that Defendants intentionally ignored numerous valid cases of employee discrimination that he brought to their attention. Plaintiff also contends that he was retaliated against for raising claims of discrimination directed at himself and his staff personally, as well as against other employees.

On November 18, 2002, Plaintiff attended a NCHCC Board meeting wherein he raised concerns regarding discrimination against other employees at NCHCC which had not been rectified and noted that "racial discrimination was rampant." (Turan Dep. at 40.) Plaintiff alleges that as a direct result of his public address to the Board, Defendants began retaliating against him by repeatedly transferring his office and, on one occasion, displacing his staff.

A. Plaintiff's Transfer to Human Resources

For example, it is undisputed that in or around January 2003, Defendants hired Vance Shaw, who is African-American, to work in the Office of Diversity. Around the same time, the Office of Diversity was transferred to the Human Resources Department and Plaintiff was directed to report to Shaw, who in turn reported to Kampe, the Vice President for Human Resources. Plaintiff claims that this transfer was tantamount to a demotion because once he began reporting to Shaw, who allegedly took over many of Plaintiff's duties, Plaintiff was no longer recognized as the Director of the Office of Diversity. (See Pl.'s Decl. ¶ 11; Decl. of Doreen Whethers ("Whethers"),*fn2 dated June 15, 2006 ("Whethers Decl."), ¶ 11.) Plaintiff further alleges that Defendants hired Shaw for the sole purpose of having him take over Plaintiff's responsibilities and to "subdue" the Office. (See Pl.'s Decl. ¶ 17; Whethers Decl. ¶ 17.) According to Plaintiff, however, Shaw defied Defendants' intentions by defending the Office's actions and assisting it in investigating complaints; Shaw was thereafter terminated. (See Pl.'s Decl. ¶ 17; Whethers Decl. ¶ 17.)

In January 2003, Plaintiff wrote a letter to the New York State Division of Human Rights (the "NYSDHR"), alleging that he had been retaliated against immediately following his address at the Board meeting. (See Pl.'s Ex. V.) In his letter, Plaintiff asserted that after his statements to the Board, he was informed that the Office of Diversity, which he oversaw, would be taken over and "run by someone with more expertise, and that [he] would no longer be in charge." (Id.) He further stated that this "new person" would now decide all staff requests. (Id.) Nine days later, he was told that Kampe would take over the Office. (Id.)

B. Plaintiff's Other Transfers

It is undisputed that in March or April of 2003, the Office of Diversity was transferred to the Office of the General Counsel. Plaintiff continued to report to Shaw who now reported to Popper, Vice President of Legal Affairs and General Counsel. It is further undisputed that in October 2003, the Office of Diversity was transferred yet again to the Academic Affairs Department, which was located next to the General Counsel's Office. Plaintiff now reported to Mostow, the Dean of Academic Affairs; Shaw was no longer employed by NCHCC. With regard to this latter move, Mostow directed Plaintiff to physically move his office, which was in a different building, to an office closer to Mostow. Plaintiff's staff was moved elsewhere, to a location outside the grounds of NUMC. Plaintiff claims this his new office was the size of a closet and filled with garbage, which took Defendants weeks to remove. He also claims that due to the size of his office and the inadequate space given to his staff, the Diversity staff was not afforded an appropriate work area to address employees' complaints and had to meet with employees in the back of NUMC's cafeteria to address their concerns. He further alleges that he and his staff were given clerical tasks not related to the Office of Diversity. (See Pl.'s Decl. ¶ 11; Whethers Decl. ¶ 12.)

Plaintiff claims that these transfers were effectuated to deter employees from complaining of discrimination because Defendants knew that employees would not go to Human Resources or Legal Affairs to address discriminatory complaints. Thus, Plaintiff argues, Defendants intentionally situated the Diversity Office in "hostile areas" because they were aware that this would intimidate employees and prevent them from lodging complaints. Alternatively, Defendants could keep an eye on employees that did show up to file a complaint. Plaintiff claims that as a result of these transfers, the Office became "inoperable and unworthy of respect." (Pl.'s Decl. ¶ 13.)

Finally, Plaintiff claims that he was required to submit daily reports to Mostow every morning concerning his activities the day before. (Pl.'s Counter-Statement Pursuant to Local Rule 56.1 ¶30.) Plaintiff alleges that no other employees, similarly situated to him, were required to do so. (Id.)

Defendants counter that they had legitimate nondiscriminatory reasons for all of Plaintiff's transfers. For example, they assert that in April 2003, since issues being investigated in the Office of Diversity had legal ramifications, some of which were already in litigation, NCHCC made the decision to transfer the Office of Diversity to the Office of the General Counsel. Thereafter, in October 2003, because the Office of Diversity was going to be conducting more educational training, Defendants transferred it to the Dean of Academic Affairs.

III. Defendants' Alleged Plot to Terminate Plaintiff

On April 14, 2004, Plaintiff hand delivered a letter to Turan, Mostow, and Michael DeLuca ("DeLuca") asserting that he "was given an ultimatum that if [he] did not retire [he] would be fired today." (Pl.'s Ex. G.) Turan, NCHCC's President and Chief Executive Officer, directed Popper, NCHCC's General Counsel, to conduct an investigation into Plaintiff's allegations. After being questioned by Popper, Plaintiff identified the persons who allegedly made the ultimatum as DeLuca, Mostow, and Turan; however, Plaintiff refused to identify the person who allegedly told him about the ultimatum. Popper also interviewed DeLuca, Mostow, and Turan, all of whom denied making any kind of ultimatum.

According to Plaintiff, he found out about the ultimatum from Nick Delasanta ("Delasanta"), Vice President of Labor Relations at the time, who was present at a meeting between Turan, Mostow, and DeLuca where they allegedly reached an agreement that Plaintiff would be fired if he did not retire early. (Pl.'s Dep. at 117-18.) Plaintiff did not disclose Delasanta's name during the course of Plaintiff's employment for fear that Delasanta would be retaliated against.*fn3

Plaintiff advised Popper that he would meet with her to discuss the ultimatum and the name of the person who told him about same if she agreed to allow his attorney to be present during the meeting. On April 25, 2004, Popper sent Plaintiff a memorandum denying Plaintiff's request, noting that "[n]either you nor any other employee has the right to refuse to talk to management about hospital business, with or without an attorney." (Pl.'s Ex. H.)

According to Defendants, because Plaintiff would not provide Popper with the name of his source, and because Plaintiff was set to retire effective May 31, 2004, NCHCC required that Plaintiff take a one month paid leave of absence until his retirement. (See Popper Dep. at 82 ("[T]here was a concern about the need for some type of disciplinary action as a consequence of [Plaintiff] having circulated a letter containing allegations that [Plaintiff] subsequently confirmed . . . were not true.").) According to Defendants, Ann Johnson, who is African-American, assumed the diversity duties previously performed by Plaintiff.

According to Plaintiff, Popper told him that he should use his sick/vacation time until it was time for him to retire or he would "find things to be difficult, as far as [his] retirement was concerned -- [his] benefits." (Pl.'s Dep. at 120.) As a result of Popper's "threat," Plaintiff was forced to use his sick time and retire early. In addition, Plaintiff argues that the only reason he was "set to retire" on May 31, 2004, was because he felt forced out as a result of Defendants' actions. In support of this argument, he proffers his March 24, 2004 letter to Mostow which states, in pertinent part, as follows:

My staff and I were placed under your direction approximately six months ago. Since that time, the office functions were changed by you without any input from my staff or I and these changes served to alter the Office of Diversity Affairs mission, intent, and purpose. . . . .

Let it be known, as a Department Head, I wasn't given an opportunity to express my opinion in these changes, or was I consulted of the intent prior to changes being made.

It is clear that I have been isolated and ostracized with the apparent intent to demoralize, humiliate, embarrass, and degrade me and my staff in every way possible.

Therefore under these conditions, that have had a severe adverse impact on me, I am now faced with retirement before my desired time. (See Pl.'s Ex. R.)

IV. Plaintiff's EEOC Charge

Plaintiff filed a complaint with the NYSDHR against NUMC on March 4, 2003, alleging race discrimination and unlawful retaliation. That complaint was "cross-filed" with the Equal Employment Opportunity Commission ("EEOC") that same day. After reviewing all of the evidence, on February 11, 2004, the NYSDHR issued a Determination and Order After Investigation dismissing the Complaint, finding "no probable cause." This finding was subsequently adopted by the EEOC without independent review and the EEOC issued Plaintiff a right to sue letter on April 12, 2004.

V. The Instant Action

Plaintiff commenced this action on July 9, 2004. The Complaint asserted six causes of action: (1) unlawful race discrimination and retaliation under Title VII; (2) unlawful race discrimination and retaliation under Title VI; (3) violations of 42 U.S.C. § 1983 ("Section 1983"); (4) unlawful discrimination in violation of 42 U.S.C. § 1981 ("Section 1981"); (5) violations of the First and Fourteenth Amendments in violation of Section 1983; and (6) unlawful race discrimination and retaliation in violation of the New York Executive Law. By Memorandum and Order dated January 23, 2006, the Court dismissed: (1) the Title VII claims against all individual defendants; (2) the Title VI claim in its entirety; (3) the Section 1983 and Section 1981 claims against NUMC; and (4) the sixth cause of action under the New York Executive Law. Defendants now move for summary judgment dismissing all remaining claims. For the reasons indicated below, the motion is granted in part and denied in part.


I. Applicable Law and Legal Standards

A. Summary Judgment

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).

The district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.' " Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).

Summary judgment is generally inappropriate where questions of the defendant's state of mind are at issue, Gelb v. Board of Elections of the City of New York, 224 F.3d 149, 157 (2d. Cir. 2000), and should thus be granted with caution in employment discrimination cases. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Nonetheless,"summary judgment remains available to reject ...

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