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Pacheco v. New York Presbyterian Hospital

January 9, 2009

JOSE PACHECO, PLAINTIFF,
v.
NEW YORK PRESBYTERIAN HOSPITAL, DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiff, Jose Pacheco ("Plaintiff"), initiated this action on November 26, 2002, alleging that Defendant, New York Presbyterian Hospital ("Defendant"or the "Hospital"), discriminated against him and a class of Hispanic employees by maintaining an "English-only" policy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), 42 U.S.C. § 1981a, and New York State and New York City human rights laws ("NYSHRL" and "NYCHRL," respectively).

The Hospital now moves for summary judgment. For the reasons stated herein, the Hospital's motion is granted.

I. Background

In opposing this motion, Plaintiff has neither provided a counter-statement of material facts as required under Rule 56.1(b) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), nor contested any of the facts contained in Defendant's Rule 56.1 Statement. Although Rule 56.1(c) provides that uncontested material facts in the moving party's statement are to be deemed admitted, in order to rely on such statements the Second Circuit requires district courts to confirm that the statements are adequately supported by citations to evidence in the record and to disregard those which are unsupported. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (noting that district court may not rely solely on the movant's Rule 56.1 Statement but "must be satisfied that citation to evidence in the record supports the assertion"); Giannullo v. City of New York, 322 F.3d 139, 140-43 (2d Cir. 2003) (finding that unsupported assertions in the defendant's Rule 56.1 Statement had to be disregarded and the record independently reviewed, even where the plaintiff had not controverted those assertions). Accordingly, unless otherwise noted, a review of the record, including Defendant's Rule 56.1 Statement, shows that the following facts are both undisputed and adequately supported.*fn1

Plaintiff, a United States citizen, was born and raised in Puerto Rico. (4th Am. Compl. ("Compl.") ¶ 4.) Plaintiff identifies himself as Hispanic by national origin, and is fully bilingual in English and Spanish. (Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 11.) Plaintiff has worked for the Hospital since August 5, 1994. (Compl. ¶ 12.) In 2000, Plaintiff was employed as a Patient Representative in the Associates in Internal Medicine ("AIM") Clinic of the Hospital. (Def.'s 56.1 ¶ 2.) On approximately May 8, 2000, Plaintiff sought and obtained a transfer within the Hospital to the position of Patient Representative within the Ambulatory Referral Registration Area ("ARRA"), a unit of the Hospital's Patient Financial Services Department, the registration desks of which are located on the first floor of the Hospital. (Id. ¶¶ 2, 13.) Plaintiff's was a purely lateral transfer, without any change in pay, benefits, or bargaining unit seniority. (Id. ¶ 6.) When Plaintiff transferred to ARRA, he was subject to a probationary period, during which he was to be trained and closely supervised. (Id. ¶ 19.)

While Plaintiff worked in the ARRA unit (between May 8 and July 24, 2000), he was directly supervised by Mohammed Hack, and also worked under the supervision of Patricia Votta, Manager of Patient Financial Services, Outpatient Registration. (Aff. of Patricia Votta ("Votta Aff.") ¶¶ 1, 5, 11.) Neither Hack nor Votta speaks Spanish. (Id. ¶ 11.) During the period that Plaintiff worked in the ARRA unit, several patients complained to Votta that they believed they were being talked about or ridiculed by ARRA employees who were speaking about them in a language other than English and were laughing at them. (Votta Aff. ¶ 8.) Plaintiff was warned by Votta on three occasions, that while he was in the vicinity of patients at the ARRA, he was to refrain from speaking in a language other than English in the course of performing his responsibilities. (Def.'s 56.1 ¶¶ 8, 12.) The exception to this request was that Plaintiff was instructed (without objection) on multiple occasions by Votta and other supervisors, that he could, and should assist Spanish-speaking patients by talking to them in Spanish. (Dep. of Jose Pacheco ("Pacheco Dep.") 262.) Moreover, in the approximately ten weeks Plaintiff worked in the ARRA unit, he was never prohibited from speaking Spanish while not on-duty. (Id. 175.) Over half the employees and one supervisor in the ARRA unit are of Hispanic descent. (Def.'s 56.1 ¶ 37; Pacheco Dep. 66.) There is no evidence that any other ARRA employee complained about Votta or any other supervisor limiting their ability to speak Spanish while performing their jobs. (Def.'s 56.1 ¶ 38.) Further, Plaintiff acknowledges that no disparaging remarks were directed at his national origin by any Hospital representative while he was employed in the ARRA unit. (Def.'s 56.1 ¶ 7; Pacheco Dep. 152-53.)

Plaintiff objected to Votta about her request that he speak only English while performing his job duties, and he alleges that in response to his complaint, Votta retaliated against him by varying his job duties and assignments. (Compl. ¶ 21.) In particular, Plaintiff claims that when he began working in the ARRA unit, his hours were 8:00 a.m. to 4:00 p.m. and that a week after he questioned Votta's request to speak English, Votta changed his hours to 8:30 a.m. to 4:30 p.m. (Id. ¶¶ 22-23.) The next week, Plaintiff claims, Votta again changed Plaintiff's hours to 9:30 a.m. to 5:30 p.m. (Id. ¶ 24.) Plaintiff alleges that the changes to his schedule disrupted his home life by interfering with his ability to fulfill his parental responsibilities. (Id. ¶ 26.) Plaintiff further alleges that during this time period, Votta retaliated against him by telling him that she intended to assign him to weekend work, although there is no evidence that Plaintiff ever was assigned to work on weekends. (Id. ¶ 25; Def.'s 56.1 ¶ 32.) Finally, Plaintiff alleges that Votta retaliated against him by assigning him a task requiring over two and a half-hours to complete, only fifteen minutes before he was scheduled to leave for the day, and that Votta unfavorably compared his productivity to that of a more senior co-worker. (Compl. ¶¶ 28-29.)

During the period Plaintiff was employed in the ARRA unit, he never received a written warning, suspension, negative written evaluation, demotion, or written disciplinary action. (Def.'s 56.1 ¶ 9.) Plaintiff's job description in the ARRA unit detailed that his position required flexible days and hours. (Id. ¶ 29.) In fact, the ARRA was open and staffed seven days a week, and ARRA employees were expected to work variable hours and weekends. (Id. ¶¶ 30-31; Votta Aff. ¶¶ 12-13.)

On approximately June 9, 2000, one month after transferring to the ARRA unit, Plaintiff made an oral complaint to Gregory Rivera, a Hospital Human Resources employee, about Votta's request that he speak only English while working. (Compl. ¶ 33.) Rivera assured Plaintiff that the Hospital did not have an English-only policy. (Id. ¶ 34.) Approximately one week later, Plaintiff again complained to Rivera about Votta's request that he speak only English while performing his job responsibilities, and was told by Rivera to make a written complaint to the Hospital's Human Resources Department. (Id. ¶ 35.) Plaintiff submitted a written complaint to the Hospital's Human Resources Department on June 23, 2000. (Id. ¶ 36.) Approximately one week later, Jeanette Hicks, Director of the Hospital's Human Resources Department, met with Plaintiff to discuss his complaint. (Id. ¶ 37.) According to Plaintiff, Hicks took no action in response to his complaint following this meeting. (Id.)

On approximately July 24, 2000, before Plaintiff completed his probationary period in the ARRA, Plaintiff applied for, and was granted, a transfer back to his prior position in the AIM clinic where he received the same salary, benefits, and bargaining unit seniority that he had in the ARRA unit. (Def.'s 56.1 ¶¶ 3, 6.) Plaintiff alleges that he was compelled to request this voluntary transfer in order to avoid having Votta ultimately reject his permanent transfer to the ARRA unit, although the record is devoid of any evidence supporting this concern. (Compl. ¶ 39.)

Plaintiff alleges that his transfer back to the AIM clinic was detrimental to his candidacy for positions in other Hospital departments, and that he was further hampered in winning promotions because he lacked the experience he would have received in the ARRA unit. (Compl. ¶¶ 41-42.) Plaintiff does not specify which promotions he was denied, the reasons for the denial of any such promotions, or the qualifications of those who received the unspecified promotions. In any event, it is undisputed that approximately three months after transferring back to his position in the AIM clinic, Plaintiff applied for, and received a promotion with a salary raise of seventeen percent. (Def.'s 56.1 ¶ 23.) Subsequently, Plaintiff received a second promotion, and as of September 2004, earned close to double what he earned while he was at the ARRA unit. (Def.'s 56.1 ¶ 24.)

II. Discussion

A. Summary Judgment Standard

Summary judgment may be granted when it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004)).

A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005); see also Giannullo, 322 F.3d at 140 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003); see also EMI Catalogue P'ship v. Hill, Holliday, Connors, Cosmopulos Inc., 228 F.3d 56, 61 (2d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). "If the evidence is such that, when viewed in the light most favorable to the nonmoving party, a reasonable fact finder could return a verdict for that party, then a genuine issue of material fact exists, and summary judgment is not warranted." Magan v. Lufthansa German Airlines, 339 F.3d 158, 161 (2d Cir. 2003) (citing Green Door Realty Corp. v. TIG Ins. Co., 329 F.3d 282, 286-87 (2d Cir. 2003)).

However, Fed. R. Civ. P. 56(e) itself provides that the adverse party "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial."

Thus, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted); see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 85 (2d Cir. 2005) ("The law is well established that conclusory statements, conjecture, or speculation are inadequate to defeat a motion for summary judgment." (internal quotation marks omitted)). "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non-movant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (noting that when deciding a motion for summary judgment, a district court should only consider evidence that would be admissible at trial).

"[I]n a discrimination case additional considerations should be taken into account. A trial court must be cautious about granting summary judgment to an employer when . . . its intent is at issue. Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (internal citations omitted); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (noting the caution with which the Second Circuit reviews the grant of summary judgment in discrimination cases "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions," but stating that "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact" (internal quotation marks omitted)). Although it is difficult for courts to ascertain discriminatory intent, courts must "carefully distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999).

While courts are to be "particularly cautious" about granting summary judgment to employers in cases where the discriminatory intent of the employer is contested, Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," AbduBrisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). And, although district courts must pay careful attention to affidavits and depositions which may reveal circumstantial proof of discrimination, see Gallo, 22 F.3d at 1224, courts are not to "'treat discrimination differently from other ultimate questions of fact,'" Abdu-Brisson, 239 F.3d at 466 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).*fn2

B. Title VII Claims

Plaintiff claims that the Hospital discriminated against him on the basis of his national origin, in violation of Title VII. Title VII provides, in pertinent part, that it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. ยง 2000e-2(a). Plaintiff's Complaint breaks down his Title VII claims as involving allegations of disparate treatment, disparate impact, hostile work environment, and retaliation. The Court will address each claim in turn, but, before doing so, it is important to note that each of these categories of allegedly unlawful discrimination is largely based on Defendant's limited English-only language practice in the ARRA unit, and/or Defendant's claimed retaliation against Plaintiff for complaining about that policy. There is not, for example, any claim that Defendant discriminated against Plaintiff for any other reason related to his national origin or ethnicity, or that any of ...


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