The opinion of the court was delivered by: Richard J. Sullivan, 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 Rayboy-Brauestein ("Raboy-Braunstein")*fn1, Dr. David Hart, Carole Nelson, Parmanand Persaud, and Margaret Refen. The Honorable Kenneth M. Karas, District Judge, then presiding, granted summary judgment to the individual defendants on all counts and to the institutional defendants on all but one count. See Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336 (S.D.N.Y. 2006). The remaining institutional defendants ("Defendants") thereafter filed a supplemental motion for summary judgment on the remaining count. On September 4, 2007, the case was reassigned to the undersigned. For the reasons herein, the supplemental motion for summary judgment is GRANTED.
The background of this litigation is extensively detailed in Judge Karas' opinion, see Hill v. Rayboy-Brauestein, 467 F. Supp. 2d at 345-48, and the parties' familiarity with the facts is presumed. Nevertheless, the facts relevant to the supplemental motion for summary judgment are provided herein. Plaintiff, an African-American woman, has been an employee of New York City for more than 19 years. On April 17, 2000, Plaintiff was transferred from Gouvenour Hospital to Defendant Bellevue Hospital & Health Corporation ("Bellevue"), as her division at Gouvenour Hospital closed. A few years prior to her transfer, Plaintiff filed a discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against the New York City Health and Hospital Corporation stemming from her employment at Gouvenour Hospital. See 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 on May 13, 2000, and she was assigned to the Pediatric Laboratory in the Pathology Department. Plaintiff alleges that upon her transfer to Bellevue, she was questioned about the settlement in her previous case, and that, despite her preference for an assignment to the General Hematology Laboratory, she was instead assigned to the Pediatric Laboratory. Plaintiff alleges that this placement in the Pediatric Laboratory was unlawful retaliation for her protected Title VII activity.
On May 16, 2002, Plaintiff brought several causes of action, including (1) purposeful racial discrimination, in violation of Title VII of the Civil Rights Act of 1964, 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 under state law; and (5) breach of contract under state law. Plaintiff further mentioned, but did not specifically plead, violations of New York Executive Law sections 296 and 297. At the conclusion of discovery, Defendants moved for summary judgment. On November 29, 2006, Judge Karas granted summary judgment with respect to all but one count, and dismissed the action against the individual defendants. See Hill, 467 F. Supp. 2d at 371. With respect to the one remaining claim, Judge Karas determined that Plaintiff had produced evidence, unrebutted by Defendants, that her job placement in the Pediatric Laboratory rather than in the General Hematology Laboratory may have been in retaliation for her past protected activity, in violation of Title VII. Accordingly, he denied summary judgment on that sole count. See id. at 367-68.
At a status conference on January 19, 2007, the remaining defendants sought and received permission to make a supplemental motion for summary judgment on the ground that an intervening change in the law had deprived them of the opportunity to present evidence with regard to the remaining retaliation claim.
A. Permission to Supplement Motion
As an initial matter, Plaintiff contends that Judge Karas' decision to permit a supplemental motion for summary judgment was not so broad as to allow Defendants to submit additional evidence relating to the existence of a legitimate, non-retaliatory reason for Plaintiff's placement. (Tr. 32:14-16; 33:5-12.) Specifically, Plaintiff asserts that Defendants' submission of a declaration from Parmanand Persaud ("Persaud Declaration") has improperly "given defendants a second bite at the apple." (See Pl.'s Decl. at ¶ 11.) The Court is not persuaded by Plaintiff's argument, and reaffirms Judge Karas's decision to allow Defendants to supplement their motion with the Persaud Declaration.
At the time when the motion for summary judgment was fully submitted, the law was clear that Plaintiff's placement in the Pediatric Laboratory instead of the General Hematology Laboratory was not an adverse action under Title VII for both her discrimination and retaliation causes of action. See Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999). Thus, because Plaintiff could not establish in her prima facie case that she was subjected to this particular adverse employment action, the burden never shifted to defendants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (describing burden-shifting analysis). Accordingly, defendants did not provide the Court with evidence of a legitimate business reason for this decision.
While the motion was pending, the Supreme Court made clear in Burlington Northern & Santa Fe Railroad Company v. White, 126 S.Ct. 2405 (2006), that events that do not constitute adverse employment actions for an alleged intentional discrimination claim may still be considered in the context of a retaliation claim. The Supreme Court held that "the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 2412-13. Judge Karas considered Plaintiff's placement in the Pediatric Laboratory under the new Burlington standard, and determined that, for the purpose of establishing a prima facie case of retaliation, Plaintiff had met her burden. Since Defendants had not provided the Court with any evidence to rebut this assertion, Judge Karas denied summary judgment with respect to this lone count. See Hill, 467 F. Supp. 2d at 367-68.
Nevertheless, because Plaintiff was able to establish a prima facie case on this particular count solely as a result of the change in the law, see, e.g., Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding that employment action that was not adverse action under pre-Burlington standard was adverse action under Burlington), Judge Karas subsequently granted Defendants' request to file a supplemental summary judgment motion to establish a legitimate nonretaliatory reason for Plaintiff's job assignment - as they presumably would have done if they could have anticipated the change in the law.
There can be no doubt that district courts have authority to permit parties to file supplemental summary judgment motions, particularly when an intervening change in the law has altered the positions of the parties. See, e.g., Mendoza v. Goord, No. 00 Civ. 0146 (GEL), 2002 WL 31654855, at *1 (S.D.N.Y. Nov. 21, 2002); Heath v. Saddlemire, No. 9:96-CV-1998 (FJS/RFT), 2002 WL 31242204, at *1, *6 (N.D.N.Y. Oct. 7, 2002); see also Johnson v. State of Conn. Dep't of Corr., 428 F. Supp. 2d 87, 89 (D. Conn. 2006) (granting supplemental summary judgment motion), aff'd, 225 Fed. Appx. 42 (2d Cir. 2007). However, notwithstanding Judge Karas' decision to allow Defendants to file a supplemental motion for summary judgment, Plaintiff now argues that Defendants' filing of a ...