The opinion of the court was delivered by: Azrack, United States Magistrate Judge
Plaintiff Catherine Divers commenced this action against defendants Metropolitan Jewish Health Systems and Teresa Cambrini on December 20, 2006. She claims employment discrimination based on race and sexual orientation in violation of the Civil Rights Act of 1861, 42 U.S.C. § 1981, the New York State Executive Law § 296, and the Administrative Code of the City of New York §8-107(a) and denial of medical leave in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. She also alleges common law assault, battery, intentional and negligent infliction of emotional distress, and tortuous interference with contractual relations. Defendants have moved for summary judgment on all claims and the parties have consented to decision by the Magistrate Judge. For the reasons discussed below, summary judgment is granted on all § 1981 and FMLA claims and the Court declines to exercise supplemental jurisdiction over the remaining state law claims.
The following facts are taken from the parties' Rule 56.1 Statements and the depositions, affidavits, declarations, and other documents they each submitted in connection with defendant's motion for summary judgment.*fn1 Factual disputes are noted.
Plaintiff, Catherine Divers ("Plaintiff" or "Divers") a black, heterosexual female, is a registered nurse. (Divers Dep. 7:7, Aug. 15, 2007; Divers Aff. ¶ 1, May 25, 2008). Defendant Metropolitan Jewish Health Systems ("MJHS") is a New York corporation that provides, among other things, at home nursing services through its various divisions, which are organized as a network of geriatric health maintenance organizations. (Def.'s R. 56.1 Statement ¶ 3 ("Def. 56.1").) Between 2000 and 2006, Divers maintained a full-time position with MJHS while concurrently serving as a per diem fee-for-service nurse both within and outside the MJHS network. Her employment was at will at all times. (Def. 56.1 ¶ 10.) Defendant Teresa Cambrini ("Cambrini"), a white homosexual female, was one of two of Divers' direct supervisors during Divers approximately two year tenure at the Long Term division of MJHS. (Def. 56.1.)
Divers resigned from Long Term effective August 3, 2006 but continued to perform per diem services for MJHS until September. She ended her employment with MJHS entirely on September 18, 2006. (Rimler Decl. Ex. H; Divers Aff. ¶ 22.) She commenced this action on December 20, 2006, alleging, in sum, that MJHS discriminated against her by denying her requests for transfers, medical leave, and medical accommodations, by withholding or delaying her disability benefits on account of her race and sexual orientation, and by constructively discharging her. She further alleges that Cambrini subjected her to a hostile work environment on account of her race and sexual orientation by being aggressive and verbally abusive and physically threatened and assaulted her.
A. Alleged Incidents of Racial Discrimination
Divers did not initially allege any discriminatory or otherwise negative working conditions regarding her employment with MJHS prior to transferring to Long Term. (Divers Dep. 102:4; see also, generally, Compl.) Indeed, she testified at her deposition that she was satisfied with her working conditions at her prior divisions and had positive working relationships with the supervisors there. (Divers Dep. 102:4--25.) However, in her response to defendant's motion for summary judgment, Divers, for the first time, alleges two incidents of mistreatment that occurred before her transfer to Long Term. She alleges that in late 2000 or early 2001, after the division she had been working for was dissolved, her white colleagues were allowed to choose their new departments, whereas she was forced to work as a social worker instead of as a nurse in accordance with her education and training (Divers Dep. 98:8--99:8; Divers Aff. ¶ 5.) When Divers protested the reassignment, a human resources representative informed her it was a mistake and advised her to file a formal complaint. However, Divers declined to pursue the matter further because "as a single-parent [sic] without monetary support from any other source" she "had little or [no] option but to remain in the role of a social worker." (Divers Aff. ¶ 5.) Divers was eventually transferred to a nurse position in the First to Care division shortly thereafter in May 2001. Divers further alleges for the first time in her opposition papers that in May 2004, while working at First to Care, she was issued an ultimatum between transferring to the Manhattan branch or quitting and was given only two days to decide while "similarly situated white employees did not encounter such [a] dilemma." (Divers Aff. ¶ 5).
With one exception noted below, Divers' remaining allegations of discrimination all occurred while she was a CHN supervisor at Long Term between June 2004 and her resignation in August 2006. Divers initially applied for a per diem position with Long Term. However, during the interview, which was conducted by Long Term supervisors Sandra Schau ("Schau") and Cambrini together, she was instead offered a fulltime community health nurse supervisor ("CHN supervisor") position. (Divers Dep. 63:23--64:10.) According to Divers, Schau was solely responsible for recruiting and hiring Divers for this position. (Pl. 56.1 ¶ 3.) According to the defendants, Cambrini also played a role. (Schau Decl. ¶ 20.) The new position constituted a promotion, so Divers accepted the offer and transferred to Long Term in June 2004.*fn2 (Divers Dep. 63:9; 63:16--19.) While at Long Term, Divers was officially assigned to work under Cambrini but could elect to seek advice, authorization and supervision from either Schau or Cambrini. (Divers 119:3; 120:10--14.) Defendants assert that Divers reported primarily to Schau. (Schau Decl. ¶ 10.) Divers disputes this but admits that she had a good relationship with Schau and felt comfortable with Schau even while working under Cambrini. (Divers Dep. 119:20--120:9.)
According to Divers, Cambrini began discriminating against her immediately upon her arrival at Long Term. Divers alleges that upon returning to her desk after a restroom break on her first day, she discovered a note from Cambrini on her computer stating that Cambrini needed to know where Divers was at all times, including when Divers was in the bathroom. (Compl. ¶ 15; Divers Aff. ¶ 8.) Divers asserts that no white employees were subjected to this condition. She submitted no evidence establishing the reporting or break practices imposed upon her white colleagues. (Compl. ¶ 15; Divers Aff. ¶ 8.) Cambrini has no recollection of the note. (Cambrini Dep. 32:2--10.)
The next day, Divers reported the incident to Sharon Rimler in the MJHS human resources department and requested a transfer back to First to Care in light of the "hostile treatment [she] suffered [at] the hands of Terri Cambrini . . . and which [she] sensed [would] continue unabated." (Divers Aff. ¶ 9.) Divers complained to Rimler that Long Term was a bad working environment and that Cambrini often raised her voice but she did not allege race or sexual orientation discrimination at that time. (Rimler Decl. ¶ 13; Divers Dep. 76:16--77:25.) Rimler denied Divers' transfer request citing MJHS's policy against transferring employees before they have completed at least one year of service in their current department. (Compl. ¶ 16; Divers Aff. ¶ 9.)
Divers alleges that her white colleagues were not held to the same one year restriction on transferring between departments and offers Dorothy Kourt as an example. (Compl. ¶ 16; Divers Aff. ¶ 10.) MJHS confirms that its transfer policy includes a "general rule to recommend people staying in their role for a year" but asserts that exceptions are made to meet the operational needs of the organization. (Rimler Decl. ¶ 10.) Defendant's policy statement also explicitly "reserves the right to transfer employees when it is deemed necessary." (Rimler Decl. Ex. D at 2.) MJHS further admits that Kourt was transferred to Long Term in June 2004 after serving less than one year in her previous department, but asserts that Kourt's transfer was necessary to alleviate the staffing crisis that Long Term was experiencing at the time. (Cammarano Dep. 23:21--24:24.) According to MJHS, less than one month before Divers resigned, it had decided to hire a third CHN supervisor to facilitate the department's expansion. (Rimler Decl. ¶ 24.) However, before that position could be filled, both Divers and the other CHN supervisor at the time, Beatrice Sylvester, submitted letters of resignation. (Rimler Decl. ¶¶ 25--28.) Thus, at the time Kourt was transferred to Long Term, each of the three and only CHN supervisor positions were vacant or about to be vacated. (Rimler Decl. ¶ 29.) Divers acknowledges that Long Term had substantial staffing difficulties throughout her employment there. (Divers Aff. ¶ 14.)
Divers also alleges, for the first time in her summary judgment opposition papers, that in hiring Kourt, MJHS was attempting to force her to quit.*fn3 (Divers Aff. ¶ 11.) Her belief is based on the fact that MJHS posted the opening for the position Kourt eventually filled in March 2006 while Divers was on a four to six week medical leave of absence. (Divers Aff. ¶ 11.) MJHS asserts that it posted the opening in May 2006, by which time Divers had returned to work. (Rimler Decl. ¶ 24; Ex. F.) MJHS further explained that it intended the new hire to fill the newly created third CHN supervisor spot and to thus supplement, not replace, Divers. (Rimler Decl. ¶ 24.) MJHS maintained the three CHN supervisor positions after Divers' resignation.
After her request to transfer was denied, Divers continued to work under Cambrini at Long Term for the next year and then renewed her request to transfer out of that department. (Compl. 17.) This time, Divers was permitted to transfer but elected to remain at Long Term because the transfer position MJHS offered required weekend work and was housed in the same building as Cambrini. (Compl. 17). Defendants informed Divers of an opening in her old department, First to Care, on February 20, 2006. (Rimler Decl. ¶ 17). The position was supervisory but would have constituted a demotion. (Rimler Decl. ¶ 18.) Divers applied for the position but went on personal leave shortly thereafter and, according to MJHS, failed to pursue the matter after her return. (Rimler Decl. ¶ 17; Ex. E). Divers consequently remained at Long Term. (Compl. 17.)
The next several incidents of alleged discrimination occurred after Divers slipped on ice near her workplace and injured her back in January of 2005. Divers alleges that when she attempted to report the incident to Cambrini for Worker's Compensation purposes, Cambrini called her a liar and that neither Cambrini nor anyone else from MJHS filed the necessary paperwork despite Divers' repeated inquiries. (Compl. ¶ 23; Divers Dep. 189:14--23; Compl. ¶ 23.) Divers alleges that though she eventually received her benefits in May 2005 after retaining an attorney, similarly situated white employees were able to obtain Workers' Compensation claim numbers within one week of their accidents. (Divers Aff. ¶ 12.) However, she provided no evidence of how MJHS handled Workers' Compensation claims submitted by other employees. MJHS asserts that the proper forms were timely submitted and produced a copy of an MJHS report to the state Workers' Compensation Board, which indicates that the fall occurred on January 24, 2005 and that the report was prepared on February 1, 2005. (Pignataro Decl. Ex. A.) Defendants also submitted a copy of the Workers' Compensation Board Notice of Decision which indicates that Divers was awarded Workers' Compensation benefits on September 1, 2005. (Pignataro Decl. Ex. B.)
Divers further alleges that MJHS, through defendant Cambrini, as well as Schau and Cammarano, denied her requests for leave to attend doctors' appointments. Specifically, they denied Divers request to either come in late every other Tuesday or leave early every other Friday from January through June 2005 to attend physical therapy appointments.*fn4 (Compl. ¶ 24; Divers Dep. 152:17--157:17; 155:19--25.) Defendants assert that they denied the request because Divers gave no reasons why she could not visit the doctor outside of the workday and because Fridays are a "critical operating time." (Cammarano Dep. 45:23.) Divers was nonetheless able to receive the necessary physical therapy three times a week by visiting her doctor after work or taking vacation or sick leave. (Divers Dep. 158:11--159:8). However, she alleges that similarly situated white employees never had trouble getting reasonable time off for doctors' visits. (Compl. 24). Divers specifically cites, without elaborating, Raymond Leirman as an example of a white employee that was permitted to take time off for doctors' appointments. (Compl. ¶ 24). Divers submitted no evidence establishing how MJHS treated such leave requests by other employees. Divers admits that she was granted medical leave on other occasions, including ten days in 2003 for injuries from a non-work related car accident and four to six weeks in 2006 after a surgery (Divers Dep. 15:1--22; Divers Aff. ¶13).
Divers also alleges that she was denied a request for five months of "light duty" or "desk duty," in accordance with her doctor's recommendation while MJHS so accommodated other employees. Divers asserts that in August 2005 she noticed at least three other employees, including Ivy Brown, Carol Henry, and a secretary named Barbara, working with a leg or arm cast. (Compl. ¶ 25.) Henry and Brown, who are both black and both described their positions as "primarily desk job[s]," both deny requesting light duty and deny wearing leg braces or casts to work. (Henry Decl. ¶¶ 2, 4, 6, 9; Brown Decl. ¶¶ 2, 6, 8, 11.) Henry admits that she wore an ace bandage and ankle support for two days (Henry Decl. ¶ 7) and Brown admits that she periodically wore an ace bandage for a portion of the workday. (Brown Decl. ¶ 9.)
MJHS asserts that it denied Divers' request for light duty because Divers would not have been able to perform the essential functions of her job if restricted to light duty as her position required her to supervise nurses in the field, care for patients as needed, lift over fifty pounds, kneel and crouch, and lift and turn elderly patients in bed. (Schau Decl. ¶ 16.) Divers admits that she would not have been able to perform the field component of her position while on light duty and offered to have her co-workers complete her field duties while she did their paperwork and other desk duties in exchange. However, defendants rejected this compromise because the paperwork is based on the field supervision and therefore both components needed to be completed by the same person. After MJHS denied Divers' request for light duty, Divers contacted her doctor who then lifted the restrictions and Divers returned to Long Term in her normal capacity. Divers offered no evidence establishing the manner in which MJHS handled other employees' requests for medically related work accommodations, if any.
Divers further alleges that defendants withheld her New York State disability benefits on account of her race. (Divers Aff. ¶ 13.) Divers claims that she was supposed to receive a benefit check for a four to six week medical leave of absence that she took beginning March 2, 2006. (Divers Aff. ¶13). Divers asserts that the state office told her that her check had been forwarded to MJHS but that MJHS never gave it to her whereas similarly situated white employees received their disability benefits from MJHS "within a reasonable time." (Divers Aff. ¶ 13; Compl. ¶ 27.) According to documents submitted by MJHS, MJHS's short-term disability benefits insurer, First Unum Life Insurance Company, awarded Divers short-term benefits on April 25, 2006. (Pignataro Decl. Ex. C.) On May 9, 2006, Divers submitted a written statement rejecting the short term award because she was advised that she would be entitled to a greater award if she submitted a claim for state benefits instead. (Divers Dep. 193--95; Pignataro Decl. Ex. C.) The state Workers' Compensation Board subsequently denied Divers' claim. (Divers Dep. 194:11-- 19.) MJHS asserts that Divers never reapplied for short term benefits and denies withholding any benefits from her. (Pignataro Decl. ¶ 16.)
On June 27, 2006, Divers submitted a letter of resignation from Long Term effective August 3, 2006. (Rimler Dec. Ex. H). In her resignation letter, Divers expressed thanks for the opportunity to work with "a reputable organization such as [MJHS]" and stated that it had "been truly a learning experience." (Rimler Dec. Ex. H.) MJHS asserts that Divers resigned because she was finally executing her longtime plan to relocate to Rochester, where she had family and other ties and where she would be able to move into a larger house, which would have helped her and her husband gain custody of her stepdaughter. Divers admits that before resigning, she requested reduced hours so that she would have time to deal with the custody matters but asserts that Cambrini was the sole reason she resigned. However, she also stated that if she had been permitted to transfer to a different department and to cut back on her hours, she would have remained at MJHS. (Divers Dep. 53:13--58:6.)
The final incident of discrimination alleged in the complaint occurred on July 13, 2006. On that date, Divers and Cambrini had both assigned two different nurses to the same patient. (Cambrini Dep. 7:4--24; Divers Dep. 273:13--274:4) Cambrini called Divers on the telephone while the two were at work to investigate the error. (Cambrini Dep. 7:25--8:4) Divers alleges that during that phone call, Cambrini was ranting and raving and that she told Divers that Divers would be fired if she ever spoke again to Tyisha Dukes, another MJHS employee. (Compl. ¶ 19.) The conversation then ended. (Compl. ¶ 20; Divers Dep. 241:15) Divers alleges that moments later, Cambrini "ran down to plaintiff's office to physically attack" her. She alleges that Cambrini stood over her in a threatening posture, screamed and verbally abused her, banged her fists on the desk, and threatened to physically hit her. (Compl. ¶ 20.) Divers further alleged in her complaint that Cambrini "pulled a chair, sat down, and commanded plaintiff to start talking to her, while at the same time threatening to hit plaintiff if she did not speak." (Compl. 20.) During her deposition, Divers testified that Cambrini pushed a chair into her. (Divers Dep. 260:6--23.) In her summary judgment opposition papers, Divers adds that Cambrini "physically hit me with her body." (Divers Aff. ¶ 17; see also Pl. 56.1 ¶ 16.) Divers speculates that Cambrini told her not to speak to Dukes anymore because Cambrini was sexually attracted to either Divers or Dukes. (Divers Dep. 243:16--12.) Divers testified that her theory is based on the fact that she could not come up with any other conclusion as to why Cambrini would tell her not to speak to Dukes. (243:11--244:22) She submitted nothing to support this theory.
Despite suffering chest pain that night as a result of the altercation with Cambrini, Divers returned to work the next morning. (Compl. ¶ 21.) The chest pain continued and at approximately 11 a.m., a co-worker called 911. (Compl. ¶ 21.) Divers was taken to the hospital where she was diagnosed with cardiac arrhythmia and underwent her second cardiac ablation surgery. (Compl. ¶ 21.) She spent the next four days in the hospital. (Compl. ¶ 21.) Divers made a formal complaint regarding the incident to Susan Borenstein, the Director Human Resources on July 18, 2006. (Borenstein Decl. ¶ 3.) Divers described the incident while Borenstein took contemporaneous notes. (Borenstein Decl. ¶ 3; Ex. A.) Divers told Borenstein that Cambrini slammed a chair into her desk. Divers did not report to Borenstein that Cambrini physically threatened her or hit her with the chair, nor did she tell Borenstein that she believed Cambrini's actions were based on Divers' race or sexual orientation. (Borenstein Decl. ¶ 5, 10, 11; Ex. A.) Divers asserts that MJHS took no action in response to her complaint. (NEED CITE) Barbara Farrell, another Human Resource employee, asserts that she investigated Divers' claim by interviewing Cambrini and four employees that work near Divers' office. (Farrell Decl. ¶¶ 8--9.) None corroborated Divers' allegations so Farrell dropped the matter. (Farrell Decl. ¶ 10.)
In addition to the above complaints, Divers, for the first time in her opposition papers, alleges that MJHS prohibited her from cashing out her retirement account after she resigned from her full time position at Long Term because she was still doing part-time work for MJHS. Divers asserts, without explaining, that "upon information and belief, other similarly situated white employees are allowed to cash out or transfer their [retirement] benefit[s] upon quitting their full-time employment at MJHS" (Divers Aff. ¶ 22.) Defendants confirm that MJHS policy prohibits employees from withdrawing funds from their retirement accounts while still employed at MJHS in any capacity and assert that they know of no MJHS employee in the last eight years that has been permitted to withdraw retirement funds while still employed at MJHS. (Pignataro Decl. ¶¶ 20, 28.) Divers submitted no evidence establishing how MJHS handled other employees' requests to withdraw their retirement account funds.
B. Complaints Regarding Cambrini Generally
In addition to the above described specific incidents of discrimination, Divers alleges that Cambrini relentlessly harassed, marginalized, intimidated, and discriminated "against Divers because of her race, sex, and sexual orientation." (Compl. ¶ 14.) She alleges that Cambrini "repeatedly addressed [her] in a condescending manner, shouted at [her] for no apparent reason, and openly disliked [her] because of a misconception that [she] was after one or two of [Cambrini's] female lovers." (Compl ¶ 29.) Divers further alleges that Cambrini shouted at her at every turn while senior managers looked on and did nothing. (Divers Aff. ¶ 8.) Divers also complained that Cambrini tossed files and papers on her desk instead of handing them to her, cursed and used a forceful and demanding tone, once called her at home about a case, and once called her a bitch at a time she thought Divers could not hear her. (Diver Dep. 88:2--89:8; 90:14-- 91:12; 93:12--94:11.) Divers asserts that she also witnessed Cambrini behave this way towards Yun Yun Li, a heterosexual Asian American female that was also a CHN supervisor at Long Term. Divers stated that Li and her replacement, Beatrice Sylvester, a heterosexual African American female, both resigned from MJHS because of Cambrini's discrimination. (Pl.'s Response 56.1 ¶ 328.) However, Divers provided no evidence either supporting this allegation or establishing the basis of her knowledge regarding Li's and Sylvestre's motives for leaving MJHS.
Divers allegations of Cambrini's discriminatory and hostile manner are generally supported by Veronica Lowe, a black female CHN supervisor who was hired by Cambrini. (Schau Decl. ¶ 3.) Lowe worked as a Long Term CHN supervisor from October 2006 through June 2007. In her declaration, she asserts that she resigned because Cambrini discriminated against her by making her do most of the less desirable field work while her white colleagues "sat in the office doing very little paper work" and by yelling at her and other black employees for things that white employees were not yelled at for. (Lowe Decl. ¶ 3.) Defendants assert that Lowe resigned in order to pursue a promotional opportunity and that she never complained of racial discrimination while employed ...