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Mugavero v. Arms Acres

March 31, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


In this action, Plaintiff Leslie Mugavero claims that Defendants retaliated against her after she complained in late April 2002 that another employee, Omar Gutierrez, was sexually harassing a co-worker, Marie McArdle. Mugavero alleges that Defendant Hesse, who supervised both her and Gutierrez, retaliated against her by, inter alia, subjecting her work to undue scrutiny and causing a series of allegedly unfair disciplinary actions to be taken against her, culminating in the termination of her employment on October 25, 2002. The Complaint asserts:

(1) a claim that Arms Acres retaliated against her in violation of Title VII and the New York State Human Rights Law ("NYSHRL") for assisting McArdle in bringing a sexual harassment complaint against Gutierrez (Counts I, II and IV);

(2) a claim against Hesse for aiding and abetting in the retaliation against her (Counts III and IV);

(3) a claim against Hesse and Arms Acres for intentional infliction of emotional distress (Count V); and

(4) a prima facie tort claim against Hesse and Arms Acres based on Hesse's filing of a complaint against Plaintiff with the New York State Office of Professional Discipline (Count VI).

Defendants have moved for summary judgment on all of Mugavero's claims, arguing that their actions were justified by legitimate concerns about Mugavero's job performance. Defendants also argue that even if they are not entitled to summary judgment, Mugavero should be precluded as a matter of law from seeking certain types of damages. For the reasons stated below, Defendants' motion for summary judgment (Docket No. 31) is GRANTED IN PART and DENIED IN PART.


Summary judgment is warranted only if the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001).

I. FACTS*fn1

Defendant Arms Acres is a substance abuse rehabilitation facility in Carmel, New York. (Def. Rule 56.1 Stat. ¶ 1) Defendant Hesse was Arms Acres' Medical Director during the time period relevant to this action. (Id. ¶ 2) Plaintiff is a certified Family Nurse Practitioner and worked at Arms Acres from mid-1995 until October 25, 2002, reporting to Hesse until at least July 25, 2002.*fn2 (Id. ¶¶ 13-14, 25, 30; Def. Rule 56.1 Stat. ¶ 374; Pltf. Rule 56.1 Resp. ¶ 374)

A. Mugavero's Job Performance at Arms Acres Prior to April 2002

Mugavero contends that her relationship with Hesse, her supervisor, deteriorated dramatically after she reported -- in April 2002 -- an incident in which another nurse had been sexually harassed by Omar Gutierrez, an Arms Acres doctor. Defendants have offered evidence demonstrating, however, that Mugavero's job performance had been the subject of numerous complaints from co-workers and patients prior to April 2002, and that Hesse's supervisor and Arms Acres' Executive Director, Patrice Wallace-Moore, had been pressuring Hesse to discipline Mugavero since late 2000.

Shortly after becoming Arms Acres' Executive Director (Def. Rule 56.1 Stat. ¶ 11), Wallace-Moore became concerned about Hesse's supervision of Mugavero, because Mugavero generated more complaints from "patients and staff than any other employee in the building." (Wallace-Moore Dep. 279:2-7, 279:23-25; see also Def. Rule 56.1 Stat. ¶ 127; Pltf. Rule 56.1 Resp. ¶ 127) These complaints related generally to Mugavero's demeanor, which was sometimes seen as disrespectful or uncooperative. (See, e.g., Def. Rule 56.1 Stat. ¶¶ 121-26, 184; Pltf. Rule 56.1 Stat. ¶¶ 121-26; id. ¶ 184 (agreeing that in December 2001 or January 2002, Nurse Sally Terlizzi complained verbally to Hesse that Mugavero "was very negative and abusive on-call"); Def. Ex. Z at 353-56 (written complaints about Mugavero from a nurse and a patient)).

Staff also complained that "they didn't feel that they were getting anywhere" complaining to Hesse about Mugavero. (Wallace-Moore Dep. 279:14-18) In December 2001, Wallace-Moore "started taking a much firmer stance in requiring . . . Hesse to do a better job of supervising Plaintiff." (Def. Rule 56.1 Stat. ¶ 169; Pltf. Rule 56.1 Resp. ¶ 169) She informed Hesse that if she heard any more complaints about Mugavero, she would assume responsibility for supervising and disciplining her. (Wallace-Moore Dep. 279:18-21; see also Pltf. Rule 56.1 Resp. ¶ 127) Wallace-Moore felt that she had to "fight" to get Hesse to supervise Mugavero appropriately, because Hesse relied on her to help him complete his work. (Wallace-Moore Dep. 431:5-12; Def. Rule 56.1 Stat. ¶ 195; Pltf. Rule 56.1 Resp. ¶ 195)

On April 11, 2002, Wallace-Moore and Hesse met for a supervisory meeting. (Def. Rule 56.1 Stat. ¶ 195) Wallace-Moore told Hesse that Mugavero's "work ha[d] been relatively good," but "her attitudes and behaviors towards other staff and patients have been questionable and require corrective action." (Def. Ex. CC at 501; Def. Rule 56.1 Stat. ¶ 195; Pltf. Rule 56.1 Resp. ¶ 195; Wallace-Moore Dep. 156:9-11 ("I had asked [Hesse] . . . in the middle of April, that he take some corrective action towards . . . [Plaintiff's] behaviors")).

B. The Events of Late April 2002

Despite Wallace-Moore's pressure on Hesse to discipline Mugavero, she contends that she had a "successful and friendly work relationship" with Hesse until approximately April 20, 2002. (Pltf. Br. at 3) Shortly after April 20, 2002, however, Mugavero alleges that two events took place that changed their relationship.

First, at some time between April 21 and April 23, 2002, Plaintiff informed Hesse that Marie McArdle, another Arms Acres nurse, "was going to report" Omar Gutierrez, the Director of Psychiatry, "for . . . sexual harassment." (Mugavero Dep. 86:7-21, 355:6-10 (also testifying that the conversation occurred "on a Monday or Tuesday" after a co-worker's party on Saturday, April 20, 2002); see also Pltf. Rule 56.1 Stat. ¶¶ 372-73; Cmplt. Ex. A (August 15, 2002 Affidavit of Leslie Mugavero) ¶ 14 (stating that the conversation occurred on April 21)). Gutierrez reported to Hesse. (Pltf. Rule 56.1 Stat. ¶ 27)

Second, on April 24, 2002, Hesse and Mugavero argued about another nurse, Kim Quickel. Quickel came into Plaintiff's office that afternoon to complain that she was being sent home. Hesse had ordered Quickel to leave the building because he believed that she was under the influence of some type of drug.Plaintiff had worked with Quickel that day and did not believe that she was impaired, however.(Mugavero Dep. 355:10-20, 356:10-15) Hesse called Plaintiff and demanded that she tell Quickel to leave her office; Mugavero responded that she could "have anybody in [her] office" that she wanted. (Id. 356:18-20)

That evening, Plaintiff, Hesse and other employees attended a work-related dinner where Plaintiff -- who was on call -- drank two martinis. (Def. Rule 56.1 Stat. ¶ 207; Pltf. Rule 56.1 Resp. ¶ 207) Later that evening, Nurse Peggy Hutcoe called Hesse at home and complained about Mugavero's response to Hutcoe's request for on call assistance, saying that Mugavero sounded intoxicated. (Hesse Dep. 584:18-585:8; Def. Rule 56.1 Stat. ¶ 209; Pltf. Rule 56.1 Resp. ¶ 209)

Hesse then called Mugavero at her home, at approximately midnight, and told her that Hutcoe had complained and that he was taking over the on call duties that night. (Hesse Dep. 586:24-587:4; see also Def. Rule 56.1 Stat. ¶ 209; Pltf. Rule 56.1 Resp. ¶ 209 (not controverting that Hutcoe complained about Plaintiff on April 24 or that the complaint was the reason Hesse removed Plaintiff from on call duty)) Plaintiff asked Hesse to tell her what had happened at the meeting with Quickel earlier that day, but Hesse refused.*fn3 (Def. Rule 56.1 Stat. ¶ 206; Pltf. Rule 56.1 Resp. ¶ 206)

The next morning, Hesse told Wallace-Moore about Mugavero's behavior and on call performance the previous evening. (Def. Rule 56.1 Stat. ¶ 214; Pltf. Rule 56.1 Resp. ¶ 214; Wallace-Moore Dep. 362:9-24 (referring to the events of April 24 as "the straw that broke the camel's back")) They decided to give Plaintiff a written warning, which Hesse drafted. (Def. Rule 56.1 Stat. ¶ 215; Pltf. Rule 56.1 Resp. ¶ 215; Wallace-Moore Dep. 362:19-24) Hesse completed the draft warning on April 30, 2002. (Def. Rule 56.1 Stat. ¶¶ 230-31; Def. Ex. DD)

The warning was not given to Plaintiff until May 3, 2002, however. (Def. Rule 56.1 Stat. ¶¶ 246-47; Def. Ex. KK) In the meantime, Mugavero had taken further steps to assist McArdle in making her sexual harassment complaint. On May 1, 2002, Mugavero provided a notarized statement in support of McArdle's complaint. (Def. Rule 56.1 Stat. ¶ 233; Pltf. Rule 56.1 Resp. ¶ 233) Arms Acres Human Resources Director Beverly Berkowitz interviewed Plaintiff concerning her statement on May 3, 2002. (Def. Rule 56.1 Stat. ¶ 241)

The April 30 draft and the May 3 final version of the written warning appear to be identical. (Def. Ex. DD; Def. Ex. KK) The warning is in the form of a memorandum from Hesse to Plaintiff and lists four performance problems: (1) "[n]umerous patient and staff complaints regarding unprofessional behavior," including "negative presentation" and "act[ing] disrespectfully" to a staff member and patient on April 19, 2002; (2) "On-Call performance problems," including an April 13, 2002 incident in which nurses complained about Plaintiff having slurred speech and giving conflicting orders, and the April 24, 2002 incident in which Hutcoe complained about Plaintiff; (3) "[i]nterference with other employee's disciplinary processes," including "discussing another employee's disciplinary process at the nurses' station" on January 29, 2002 and "interfer[ing] with another employee's [i.e., Quickel's] leaving the building" on April 24, 2002; and (4) "insubordination," including failing to provide patient care when directed to do so and demanding on April 24 that Hesse speak with her about Quickel. (Def. Ex. DD)

From May 3, 2002 onward, Hesse began to supervise Plaintiff more closely. (See, e.g., Def. Rule 56.1 Stat. ¶¶ 256, 259; Pltf. Rule 56.1 Stat. ¶¶ 256, 259; see also Pltf. Br. at 8-9)

C. The June 26, 2002 Suicidal Patient Incident

On June 26, 2002, during an admission assessment, Mugavero evaluated a patient as being suicidal. (Def. Rule 56.1 Stat. ¶ 284; Pltf. Rule 56.1 Resp. ¶ 284) She "immediately" informed the nursing supervisor, Cindy Lipton, that she had examined a patient who might be suicidal. (Mugavero Dep. 649:19-23; Def. Ex. OO at 2145 (written statement by Cindy Lipton stating that Mugavero informed Lipton while she was on her lunch break that a new patient "had verbalized suicidal ideation with plans while . . . [Mugavero] was doing his admission History and Physical")) Mugavero also told Lipton that she would tell Sofia Umali, the psychiatric nurse, that she was needed for an evaluation, because Mugavero was leaving for an off-site lunch that Umali was attending. (Mugavero Dep. 649:19-650:4) As discussed below, Mugavero was later disciplined for allegedly not following Arms Acres' protocol and improperly abandoning a suicidal patient.*fn4

D. The Second Written Warning

Defendants assert that by late July 2002, Hesse and Wallace-Moore had several additional concerns about Mugavero's performance, including her involvement in the suicidal patient incident on June 26. (Def. Rule 56.1 Stat. ¶¶ 313-16; Pltf. Rule 56.1 Resp. ¶¶ 313-16) Wallace-Moore and Hesse decided to issue Plaintiff a second written warning at this time. (Def. Rule 56.1 Stat. ¶¶ 313, 315; Pltf. Rule 56.1 Resp. ¶¶ 313, 315)

This warning was largely drafted by Hesse on July 25, 2002, but was not given to Mugavero until August 6, 2002. (Def. Rule 56.1 Stat. ¶¶ 314, 318; Pltf. Rule 56.1 Resp. ¶¶ 314, 318) This warning raised further "professionalism performance" issues, including acting disrespectfully toward Hesse and failing to perform admission assessments in a timely manner on August 6, 2002. (Def. Ex. RR at 1) This warning also stated that Plaintiff had: failed to perform adequate review or act on patient pregnancy test results on three occasions between May 21 and June 20, 2002; ordered incorrect medication or failed to report a medication allergy on three occasions between July 8 and July 18, 2002; and failed to follow appropriate procedure concerning the suicidal patient on June 26, 2002. (Id. at 1-2) This warning required Plaintiff to take specific corrective action, including "[s]atisfactory review of all laboratory tests with specific attention to pregnancy results" and "[c]onscientious adherence to all psychiatric emergency policies and procedures." (Id. at 2)

E. Hesse's Complaint to the Office of Professional Discipline

On July 25, 2002, Hesse sent a letter to the New York State Department of Education's Office of Professional Discipline ("OPD") requesting an investigation into Mugavero's professional competence. (Def. Rule 56.1 Stat. ¶ 328; Def. Ex. SS) In the letter, Hesse stated that he was "concerned that there appears to be an increasing pattern of errors [by Mugavero]," and described the incidents set forth in the July 2002 written warning, including Mugavero's handling of pregnancy test results and the suicidal patient, and her incorrect medication orders. (Def. Ex. SS at 1-4) Hesse also described three other incidents, including two inaccurate patient assessments and an episode in which Mugavero failed to order appropriate care for a diabetic patient. (Id. at 1-2) Hesse wrote that "[w]e have completed investigation and discipline with a written warning," but that Mugavero "has not accepted supervision, and has been negative in her responses." (Id. at 1)

Plaintiff learned of Hesse's complaint in late December 2002, when she received a letter from the OPD. (Mugavero Aff. ¶ 6) The OPD investigation ended in late August 2003 without any charges being filed against Plaintiff. (Id. ¶ 11; Def. Rule 56.1 Stat. ¶ 333)

F. Hesse's August 6, 2002 "Firing" of Mugavero

On August 6, 2002, Hesse and Mugavero had an argument that ended with Hesse telling Mugavero that she was fired. Mugavero's co-worker Michelle De Marco had asked Mugavero to perform a physical. (DeMarco Dep. 121:19-21) Mugavero said that she "only had two hands" and could not do it immediately. (Id. 121:20-122:13; Mugavero Dep. 673:20-674:14) Hesse then asked Mugavero to come into his office. After she refused, Hesse told her that she was fired. (DeMarco Dep. 121:20-122:13; Mugavero Dep. 673:20-674:14)

Mugavero then told Human Resources Director Berkowitz what Hesse had said. (Berkowitz Dep. 225:5-6; Mugavero Dep. 675:12-19) Berkowitz spoke with Hesse and Wallace-Moore about the incident, and then told Plaintiff that she was "certainly not terminated," but that "yelling at her supervisor in the presence of staff and patients is insubordinate and that she might be hearing about that." (Berkowitz Dep. 225:7-15, 6:22-227:4) Mugavero agreed at her deposition that she had not actually been fired on August 6. (Mugavero Dep. 675:12-19, 676:15-17)

G. Mugavero's EEOC Complaint

On August 16, 2002, Mugavero filed an EEOC charge against Arms Acres and Hesse alleging that Hesse had retaliated against her for submitting a written statement in support of McArdle's harassment complaint against Gutierrez and for "express[ing] . . . displeasure concerning the . . . firing of . . . Quickel," who (according to Plaintiff) had also been harassed by Gutierrez. (Pltf. Ex. 84 ¶ 3) Arms Acres responded to the charge on September 20, 2002. (Pltf. Ex. 23)

H. The Termination of Mugavero's Employment

On October 1, 2002, Berkowitz began investigating new allegations that Plaintiff had made errors with respect to a pregnant patient. (Def. Rule 56.1 Stat. ¶ 352; Pltf. Rule 56.1 Resp. ¶ 352; Berkowitz Dep. 175:3-11) Hesse had brought the allegations to the attention of JoAnne Elliott, who was then acting as Plaintiff's administrative supervisor, and Elliott brought them to Berkowitz's attention. (Berkowitz Dep. 170:8-173: 12) Plaintiff was placed on administrative leave, beginning October 1, 2002, while the investigation was pending. (Def. Rule 56.1 Stat. ¶ 353; Pltf. Rule 56.1 Resp. ¶ 353; Berkowitz Dep. 175:3-11)

As part of her investigation, Berkowitz asked Hesse to explain the protocol for responding to a positive pregnancy test result. (Def. Rule 56.1 Stat. ¶¶ 354-55; Pltf. Rule 56.1 Resp. ¶¶ 354-55; Berkowitz Dep. 177:9-17) Hesse told Berkowitz that the person who signed off on positive pregnancy test results was responsible for issuing an order to stop the patient's withdrawal medication; ordering a blood pregnancy test; informing the patient and the patient's case manager; and documenting this in the patient's chart.*fn5 (Def. Rule 56.1 Stat. ¶¶ 354-55; Pltf. Rule 56.1 Resp. ¶¶ 354-55; Berkowitz Dep. 208:12-14)

On October 9, 2002, Mugavero met with Berkowitz and Elliott. (Def. Rule 56.1 Stat. ¶¶ 360-61; Pltf. Rule 56.1 Resp. ¶¶ 360-61) Mugavero asked to see the pregnant patient's medical chart so that she could better respond to questions about her treatment of the patient. (Def. Rule 56.1 Stat. ¶ 361; Pltf. Rule 56.1 Resp. ¶ 361) Berkowitz provided Mugavero with excerpts from the patient's medical chart on October 22, 2002. (Def. Rule 56.1 Stat. ¶ 365; Pltf. Rule 56.1 Resp. ¶ 365) During this meeting, Mugavero acknowledged that she had signed off on the patient's positive pregnancy test results and had later re-ordered the patient's opiate withdrawal medication. (Berkowitz Dep. 204:2-6, 205:7-12; Def. Ex. DDD (cited by Plaintiff as "D-Ex#8")) She also noted that it appeared that another nurse practitioner, Joanne Callahan, had admitted the patient and ordered the pregnancy test. (Berkowitz Dep. 208:22-25; Def. Ex. DDD)

Berkowitz discussed the results of the investigation with Wallace-Moore, and Wallace-Moore decided to terminate Mugavero's employment. Hesse was not involved in the decision. (Def. Rule 56.1 Stat. ¶¶ 368-70) An internal memo by Berkowitz, dated October 25, 2002, states that Mugavero's employment would "be terminated due to serious job performance errors which were committed after multiple written warnings." (Def. Ex. XX) The memo describes Mugavero's errors as "sign[ing] off on a lab report for a patient that indicated the patient had a positive pregnancy test result," but "(a) fail[ing] to interpret the lab report and discontinue medication for the patient . . .; (b) fail[ing] to enter the positive pregnancy results into the notes of the patient's chart; (c) fail[ing] to tell the patient that she had a positive pregnancy result; and (d) subsequently reorder[ing] withdrawal medications that are medically inappropriate for a pregnant person." (Id.) The memo also states that Mugavero "admitted that if she found a positive pregnancy test she would stop all medications and talk to the patient," but did not do so in this case. (Id.) It also states that "[a]t no point in the two meetings . . . did [Plaintiff] indicate that she told any other person that the patient was pregnant." (Id.)

On October 28, 2002, Berkowitz informed Mugavero that her employment had been terminated effective October 25, 2002. (Def. Rule 56.1 Stat. ¶ 374) Mugavero told Berkowitz at this meeting that she had told Callahan about the positive pregnancy test results. (Def. Ex. YY at 492 (internal memo by Berkowitz stating that "[d]uring the delivery of the termination paperwork for [Mugavero], [she] stated that she told Joanne Callahan that the patient was pregnant. I asked [Mugavero] if she documented her conversation with Joanne. [She] said no.")*fn6


Courts evaluate Title VII retaliation claims using a three-step burden-shifting analysis:

First, the plaintiff must establish a prima facie case. That is, an employee must show "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). The burden of proof that must be met to permit a Title VII plaintiff to survive a summary judgment motion at the prima facie stage has been characterized as "'minimal' and 'de minimis.'" Woodman v. WWOR-TV, 411 F.3d 69, 76 (2d Cir. 2005) (quoting Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). In determining whether this initial burden is satisfied in a Title VII retaliation claim, the court's role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987).

If a plaintiff sustains the initial burden, a presumption of retaliation arises. In turn, under the second step of the burden-shifting analysis, the onus falls on the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. See [Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998)]. Finally, as for the third step, once an employer offers such proof, the presumption of retaliation ...

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