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Harrison v. North Shore University Hospital

March 6, 2008

JOSEPH HARRISON, PLAINTIFF,
v.
NORTH SHORE UNIVERSITY HOSPITAL, DEFENDANT.



The opinion of the court was delivered by: Wall, Magistrate Judge

MEMORANDUM & ORDER

Before the court, on consent of the parties, is a motion for summary judgment made by defendant North Shore University Hospital ("NSUH"). See Docket Entry ("DE") [50]. Plaintiff Joseph Harrison has opposed the motion. Previously, District Judge Wexler issued a Memorandum and Order (M&O) granting in part and denying in part defendant's motion to dismiss.*fn1 M&O of September 15, 2005, DE [35]. Plaintiff's remaining claims under Title VII of the Federal Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, ("Title VII") are failure to promote to the MRI department in October 2000,*fn2 hostile work environment, retaliation, and wrongful termination. For the reasons set forth herein, the motion is granted.

BACKGROUND

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

Plaintiff Joseph Harrison, Jr. ("Harrison"), an African American male, was hired by NSUH as a Radiology Technologist in the Department of Radiology around June 1987. After receiving training, plaintiff elected to work the evening shift from 4:00 p.m. to 12:00 a.m. In June 1990, plaintiff was promoted to a higher paying position as a CT Scan Technologist ("CT Tech"). Plaintiff claims that he was not required to submit an application for this transfer despite defendant's position that written applications must be submitted for all transfers. Plaintiff's Rule 56.1 Counter Statement ("Pl. Stmt") ¶13, DE [63]. After additional training, plaintiff again elected to work the evening shift. During his tenure as a CT Tech, his immediate supervisor was Karen Lisk, CT Supervisor; his second level supervisor was Chief Technologist Charles Winterfeldt; and his third level supervisor was the Director of Radiology. The position of Director of Radiology was held by Richard Buckheit until 1993, and by John Aloisio from 1994 through plaintiff's termination on November 15, 2000.

Harrison claims that subsequent to his promotion to CT Tech, he sought further promotions*fn3 to an MRI position by stating his interest verbally to supervisors. Pl. Stmt, ¶¶ 15-17.

Plaintiff claims that during his tenure at NSUH, twelve white or Hispanic, less qualified, employees received promotions to MRI. Am. Compl. ¶68, DE [12]. Even after conducting discovery, plaintiff has provided no specific dates that these promotions occurred and thus, the only failure to promote event currently at issue is the one identified in Judge Wexler's M&O--defendant's decision to promote Carlos Sandoval. According to plaintiff, Sandoval was promoted to MRI in October 2000. Am. Compl. ¶66. NSUH has provided an affidavit and a transfer form indicating that the decision to transfer Sandoval to MRI was made in September 1998 with an effective date of January 1999. Aloisio Aff., Ex. 12, DE [58].

In addition to plaintiff's claims that he was passed over for promotions for discriminatory reasons, he claims that he was subjected to a hostile work environment. Generally, plaintiff feels he was mistreated by his immediate supervisor, Karen Lisk, that she made false accusations against him, and that she reprimanded him for conduct such as returning late from breaks but did not reprimand non-African American employees for the same conduct. Pl. Stmt ¶¶ 40-52. Lisk allegedly referred to plaintiff as a "'boy' in a racially derogatory manner on at least two separate occasions" in 1989 and 1990. Id. at ¶56 (citing Harrison Tr., 143:25). Plaintiff alleges he was unfairly evaluated by Lisk. Harrison Tr., 142:11-13. Lisk's last evaluation of plaintiff was completed in 1995. Lisk Aff., ¶7, DE [59]. Plaintiff also refers to an incident in 1995 regarding Lisk's reaction to news of a death in plaintiff's family. Pl. Stmt ¶¶ 54-55. Another incident involving Lisk's marking of plaintiff's timesheets occurred in approximately 1998. Harrison Tr., 226:5-15. Plaintiff also claims he was unfairly denied overtime opportunities, but admits that the problem was resolved in 1993. Id. at 153:5-7.

In addition, Harrison claims to have been verbally abused by hospital security guards who destroyed his cars and other personal property. Pl. Stmt. ¶62. Security guards also allegedly talked about his cars and referred to him as a "Drug Dealer." Id. ¶64. Plaintiff alleges that he complained about the security office to numerous administrators, including NSUH's Deputy Executive Director Robert Gallagher, but nothing was done. Id. ¶ 67. Plaintiff states that defendant failed to adequately investigate his claims and in one instance in 1996, forced him to attend anger management counseling. Harrison Tr., 306:19-307:2. Although plaintiff notes several other examples of his run-ins with members of Security at the hospital, the last such incident specifically cited by plaintiff occurred in late 1996. Pl. Stmt ¶¶69-72.

Plaintiff has not identified any specific discriminatory actions that took place between December 1998 and October 2000. Plaintiff generally mentions defendant's failure to promote him to an MRI position, but does not provide specific dates for those occurrences. He has stated that he was passed over in favor of Carlos Sandoval in October 2000. Defendant has identified several incidents leading up to plaintiff's termination in November 2000. On November 25, 1997, Charles Winterfeldt, plaintiff's second level supervisor, sent a memorandum to John Aloisio regarding an incident with plaintiff the day before. Winterfeldt Aff., Ex. 1, DE [57]. According to Winterfeldt, when he approached plaintiff to inquire why he had been forty minutes late to work the day before, plaintiff became "verbally loud and repeatedly used inappropriate language" that Winterfeldt further characterized as "inappropriate, threatening verbal behavior." Id. (emphasis in original). Plaintiff acknowledges that he "might have cursed at him" but denies that his reaction was threatening since "I never said I was going to harm him." Harrison Tr., 47:12, 48:6-7.

In May 2000, Dr. Kenneth Nalaboff, Chief Resident of the Radiology Department, complained to the senior technologist about what he believed to be a mistake made by plaintiff during a CT scan. Dr. Nalaboff subsequently prepared an Incident Report concerning plaintiff's reaction to his concerns. See Aloisio Aff., Ex. 5. According to Dr. Nalaboff, plaintiff "proceeded to yell and verbally assault me and assumed a hostile physical stance. Although he never physically touched me, I felt physically threatened by him and told him so. He was insulting, unprofessional, and altogether inappropriate." Id. Plaintiff disputes that he was abusive or threatening and says a co-worker, Kahron Hogans, witnessed the incident and "wrote his own thing to this." Harrison Tr., 232:8-9. In opposition to this motion, however, plaintiff has not provided a sworn copy of Mr. Hogans's report or an affidavit or deposition testimony from him. Plaintiff does provide an undated, unsigned statement addressed to "whom it may concern" which purports to be Hogans's account. Calliste Decl., Ex. F. Even assuming that this evidence is admissible, an unlikely event, the "statement" is limited to Hogans's observation of Dr. Nabaloff's behavior only and does not describe the incident between Nabaloff and plaintiff.

In July 2000, plaintiff was the subject of a report from another doctor, Robin Warshawsky. Warshawsky Aff., Ex. A, DE [55]. Dr. Warshawsky initiated a conversation with Harrison after she "heard Joe and the patient speaking to one another in a loud voice." Id. At the conclusion of her report, Dr. Warshawsky states "I have never been spoken to by anyone in such a hostile and disrespectful way as I was on July 14th by Joe Harrison." Id. Again, plaintiff disputes Dr. Warshawsky's account of the incident, says he has a witness, employee Laura Blacknall, who supports him, yet fails to provide an affidavit or deposition testimony from that witness. Harrison Tr., 239-40:5-19. It does not appear that any action was taken against plaintiff as a direct result of the incidents involving Drs. Nalaboff and Warshawsky.

The incident that led to plaintiff's termination occurred on November 15, 2000. On that date, plaintiff went to the Human Resources office to ask for a new identification badge ("ID"). Plaintiff claims one of his two ID badges had been stolen, that he always carried two ID badges, and that defendant was aware of this fact. Pl. Stmt ¶¶93-95. Plaintiff acknowledged that he kept one ID on his lab coat and a second in his car "for New York City police officers, because I was being harassed going home driving my BMW." Harrison Tr., 313:11-13. At the office, he approached Desiree Wharton, a black woman of West Indian descent, and asked for an ID badge. Wharton informed him that hospital policy only allowed for the issuance of one ID badge. According to Wharton, he "became agitated and began raising his voice, stating that he has always carried two badges and it has never been a problem." Wharton Aff., ¶3, DE [54]. The parties disagree as to what plaintiff said next. According to Wharton, plaintiff said "There's a lot of racism in this Hospital . . . You're a nigger and I'm a nigger." Id. at ¶5. Kathleen Hellman, Office Manager of Human Resources, supports Ms. Wharton's account and claims that:

Mr. Harrison pointed his finger in Ms. Wharton's face, called Ms. Wharton a "nigger," and stated that Ms. Wharton should understand how he feels as another black person. I instructed Mr. Harrison to apologize to her. Mr. Harrison refused and was yelling in a very loud voice. Ms. Wharton was very upset by Mr. Harrison's comments and was visibly shaken.

Hellman Aff. ¶5, DE [56]. Ms. Wharton also states that she was "very disturbed and shaken" by plaintiff's comments and "felt intimidated and threatened." Wharton Aff. ¶6. On the day of the incident, Wharton made a report to Security which indicated that she "was physically upset by the incident [and] was escorted to her vehicle by Security staff." Id., Ex. A.

Mr. Harrison acknowledges that he used the word "nigger" during the exchange, but only in reference to himself: "I said 'I know that I'm a nigger. You understand? And basically you're just like me.' But I never called her a nigger." Harrison Tr. 324:3-6. Plaintiff claims that his use of the word was appropriate "being I was talking to two black people, I wanted them to understand where I was coming from, that we're in an all white environment, and I'm being stepped over." Id. at 324-25:23-4. Plaintiff claims that Elaine Johnson, an African American employee present during the incident, would corroborate his version; however, plaintiff has yet again failed to provide an affidavit or deposition testimony from the witness.

Later that same day, Director of Human Resources Paul Giordano called Harrison to his office to discuss the incident. After plaintiff admitted to using the word "nigger," Giordano directed him to apologize to Wharton, but he refused. Harrison Tr. 338:14-25. Plaintiff claims that Giordano was trying to provoke him into a physical confrontation. Id. at 338:8-21. After Harrison declared "'I'm not apologizing to nobody,'" Giordano suspended him. Id. at 341:8-14. In response to what he characterizes as Giordano lunging at him, Harrison said "if you touch me, it's going to be on." Id. at 341:16-18.

The same day, Giordano reported to John Aloisio, Director of Radiology, that Harrison had acted in an unprofessional and threatening manner towards himself, Ms. Wharton and Ms. Hellman. Aloisio Aff. ¶13. Aloisio conducted an investigation, including individual meetings with the three witnesses--Ms. Wharton, Ms. Hellman, and Ms. Johnson. Id. ¶¶14-15. Upon concluding the investigation and reviewing plaintiff's personnel file "which was filled with warnings for inappropriate and threatening behavior," Aloisio determined that the "correct course of action was to terminate Mr. Harrison's employment." Id. ¶16. Plaintiff filed a grievance which was held in November 2000 before Aloisio, Giordano, Ronald Stone, Vice President of Human Resources, and Dennis Dowling, Executive Director of the Hospital. Id. ¶18. Dowling and Stone determined that proper grounds existed for the termination and denied the grievance. Id. On December 7, 2000, Giordano advised plaintiff that his grievance had been denied. Harrison Tr. 355:17-20. When Giordano told plaintiff he could apply to work at a different hospital within the North Shore system on a per diem basis with a loss of benefits, plaintiff told him "Go f*** yourself." Id. at 356-57:8.

On December 19, 2000, plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR"). After his termination and the filing of his NYSDHR claim, plaintiff claims that he was retaliated against by defendant when they "blacklisted" him as he sought employment. Harrison Tr. 367:22-24. Specifically, Harrison claims that one employment agency employee told him that "they told us that you had an anger control problem," id. at 368:5-22, and that one of Harrison's potential employers asked him "who is this Karen Lisk?" Id. at 143:12-15. He states that he was unable to get another position until May 2003. Id. at 369:17.

On June 19, 2003, the NYSDHR issued a Determination after Investigation concluding that there was probable cause to believe NSUH engaged in unlawful discriminatory practices. See Williams Aff., Ex 5. On October 28, 2003, a Reopening Order was issued indicating that a "review of the file compels the conclusion that there was no evidence of discrimination" and directing that the case be reopened, remanded and dismissed. Id., Ex. 7. A Determination and Order after Investigation was issued on December 29, 2003 that concluded there was no probable cause to believe that NSUH had discriminated against Harrison. Id., Ex. 8. The EEOC adopted the findings of the state agency, closed its file, and issued a right to sue letter on February 6, 2004. Id., Ex.9. Additional discussion regarding the mailing of the right to sue letter will follow below. On May 17, 2004, Harrison commenced this action claiming that defendant discriminated against him because of his race in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. §2000e et seq. An Amended Complaint dated September 27, 2004 was filed subsequently.

DISCUSSION

A. Summary Judgment ...


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