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Desir v. Concourse Rehabilitation and Nursing Center

February 28, 2008

PAULTRE DESIR AND JEAN BONNE-ANNEE, PLAINTIFFS,
v.
CONCOURSE REHABILITATION AND NURSING CENTER, AND ANA PEREZ, DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox, U.S. Magistrate Judge

REPORT AND RECOMMENDATION

KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE

INTRODUCTION

Plaintiff Jean Bonne-Annee ("Bonne-Annee") brought this action for damages against his former employer, Concourse Rehabilitation and Nursing Center, Inc. ("Concourse"), and his former Concourse supervisor, Respiratory Therapy Department Director Ana Perez ("Perez") (collectively, "defendants"). Bonne-Annee's complaint alleges that in or about the months of May and June 2004, while employed by Concourse, he was subjected to a hostile work environment and, thereafter, was terminated wrongfully, in July 2004, due to his race and national origin, in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., New York's Executive Law § 296 and New York City's Administrative Code §§ 8-107.1(a), et seq.*fn1 In addition, Bonne-Annee seeks damages from Perez, under New York common law, for tortious interference with contractual relations. The defendants have moved for summary judgment, pursuant to Fed. R. Civ. P. 56; the plaintiff opposes the motion.

BACKGROUND

Bonne-Annee is a black male of Haitian national origin. He was hired by Stuart Lava ("Lava") and Dov Lebovic ("Lebovic"), two Concourse managers, to work at Concourse, commencing in February 2004, as a per diem respiratory therapist. In that capacity, the plaintiff worked on an as-needed basis, without a written contract or an employment term of fixed duration. While employed by Concourse, Bonne-Anne also worked as a respiratory therapist at other New York-area health care providers.*fn2

Bonne-Annee was often scheduled to work a 7:00 p.m. to 7:00 a.m. shift for Concourse.*fn3

The plaintiff recalls that sometimes no supervisor or co-worker would be present while he performed his work assignments. However, Bonne-Annee was not the only Concourse per diem respiratory therapist who was assigned to work the above-noted shift alone or unsupervised.

Perez is a Hispanic woman of Dominican descent. She was hired by Concourse as a respiratory therapist on or about May 1, 2004, and was named Respiratory Therapy Department director sometime prior to June 1, 2004. In her capacity as director, Perez prepared the June 2004 respiratory therapist work schedule, and before being named director, Perez had assisted Lebovic with preparing a portion of the May 2004 respiratory therapist work schedule.

According to the plaintiff, Perez abused her scheduling authority by reducing to zero the number of shifts he was scheduled to work after June 2004. Bonne-Annee maintains Perez did this because of a racial and national origin bias she had against him. Bonne-Annee recalls, and alleged in his administrative charge of discrimination, that when he and Perez first met, sometime in May 2004, she "inquired where [Bonne-Annee] was from and when [he] replied that [he] was from Haiti, [Perez] said that [she] did not [sic] to work with you people." In the complaint BonneAnnee filed to commence this action, he alleged that, at their first meeting, Perez told him she "despised" Haitians. However, he now contends his counsel used the word "despised," when he prepared the complaint, and attributed that word to Perez, although Perez never uttered it during their first encounter. Bonne-Annee also alleges Perez made a similar disparaging statement to Paultre Desir ("Desir"), a former plaintiff in this action, who is also of Haitian national origin. According to Bonne-Anne, Perez remarked to Desir: "[O]h my God, you people again? I don't like you people I'm not luck[sic] with you people." No one witnessed the exchange Bonne-Anne alleges occurred between him and Perez. Moreover, despite the offensive nature of the statements the plaintiff alleges Perez made, Bonne-Annee testified at his deposition that he felt neither harassed nor intimidated while employed at Concourse.

Bonne-Annee maintains Perez uttered her offensive statement to him in May 2004. However, by June 2004, when Perez had assumed the respiratory therapist scheduling duties, the number of opportunities Bonne-Annee was offered to work at Concourse increased. In any event, according to Bonne-Annee, Perez's discriminatory animus toward him manifested itself in her decision to schedule him to work alone one night shift out of seven night shifts available in May 2004 and three night shifts out of 12 night shifts available in June 2004, and her failure to offer him any work in July 2004 or thereafter. Bonne-Annee contends that working the night shift at Concourse was a "dreaded" assignment and, therefore, being assigned that task constitutes a hostile work environment.

The defendants deny that Perez's scheduling decisions were motivated by racial or national origin bias or animus. They maintain that Concourse made a business decision to recruit more full-time respiratory therapists and to decrease its reliance on per diem respiratory therapists. However, Perez testified at her deposition that by July 2004, she had hired 17 persons to work as respiratory therapists at Concourse, most of whom were per diem employees. In addition, according to Perez, she received complaints from Bonne-Annee's co-workers that he was not completing his assignments timely, necessitating that they complete his work after his night shift ended. Perez also recalled receiving patient complaints regarding Bonne-Annee's work performance. However, the defendants have not identified any Concourse staff member or patient who complained about Bonne-Annee's work performance. Furthermore, the defendants never prepared or provided to the plaintiff an evaluation of his work. Moreover, Bonne-Annee continued to perform respiratory therapist work at another health care facility, also managed by Lava, during the same period that the defendants contend Bonne-Annee performed his work unsatisfactorily. According to the defendants, after Perez discussed the complaints she had received about the plaintiff with Lebovic, and considered Concourse's decision to decrease its reliance on per diem respiratory therapists, she determined to cease scheduling Bonne-Annee to work at the Concourse. Except for one instance, in July 2004, when Bonne-Annee was summoned to work by a Concourse nursing supervisor, Bonne-Annee did not perform any work for Concourse, after June 2004.

DISCUSSION

Summary ...


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