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Liburd v. Bronx Lebanon Hospital Center

April 3, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


Defendants Bronx Lebanon Hospital Center ("Hospital"), Andreas Evdokas ("Evdokas") and Raymond Esteves ("Esteves") (collectively, "Defendants") move for summary judgment on each of the remaining claims brought by Plaintiff Pearline O. Liburd ("Plaintiff"). The remaining claims are for discrimination based on race/color under Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981; hostile work environment under Title VII and § 1981; and retaliatory termination in violation of the False Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"). For the reasons set forth below, Defendants' motion is granted.


Plaintiff began her employment at the Hospital in October 1994; in February 1997, she was promoted to Project Administrator of the Harm Reduction Program ("HRP") and was thereafter promoted to Program Director. Plaintiff's duties included management and oversight of HRP and contribution to HRP's annual grant application process. At the time of her termination, Evdokas was Plaintiff's direct supervisor. Evdokas's direct supervisor was Esteves, who in turn was directly supervised by Dr. Jeffrey Levine, Chief of the Department of Psychiatry. The HRP was a fully funded federal grant program whose mission was to serve the HIV/AIDS and substance abuse population of the Bronx. In 2002, HRP was transferred from the Department of Medicine under Dr. Edward Telzak to the Department of Psychiatry under Dr. Levine. Final decision-making authority relating to HRP thereafter rested concurrently with Dr. Telzak, Dr. Levine and Esteves.

Plaintiff's Differences with Esteves

Esteves gave Plaintiff at least one positive evaluation in 2002, and while under his supervision Plaintiff received salary increases in 2002, 2003 and 2005. Plaintiff and Esteves got along well and had no disputes prior to February 2005. At that time, Plaintiff and Esteves began to have "issues" relating to the best use of HRP's grant budget. Specifically, Plaintiff sought to use available funds for HRP staff overtime; Esteves disagreed and decided to use the funds to purchase computers. Esteves never informed Plaintiff of his decision to purchase the computers and ordered them without consulting her. Twelve computers were purchased; eight were designated to establish a computer lab in the HRP, while four were earmarked for HRP staff. The computers designated for the computer lab were not put to their intended use, and remained in the Hospital. Esteves never provided Plaintiff with the specific location of the eight computers; she thereafter developed concerns about their location and whether they would be delivered to HRP.

It is undisputed that the only complaint Plaintiff ever filed pursuant to the Hospital's complaint procedures was a memo addressed to Dr. Levine, dated October 18, 2005 (the "October 2005 memo"). In that memo, Plaintiff complained that Esteves had denied her request to attend a conference and described her disagreement with Esteves regarding the use of funds. The October 2005 memo made no mention of discrimination on the part of Esteves or any other supervisor at the Hospital, nor did it allege any fraud relating to the purchase of the computers. In the spring of 2006, Plaintiff began to take "aggressive action" to learn the location of the computers. After Plaintiff questioned Esteves repeatedly as to the computers' location, she claims that he began "devising a method to terminate" her. After these disagreements, Plaintiff's relationship with Esteves deteriorated and Esteves allegedly began todiscriminate against her. Specifically, Plaintiff alleges that Esteves took the following actions: (1) ignored and spoke to her harshly at meetings; (2) scolded her for not following the chain of command in seeking consent to attend a conference; (3) threatened transfer to another department; (4) denied transfer to the supervisor of her choice; (5) gave herextra duties in HRP; (6) stripped her of certain duties; (7) referred to her as "black ass" on three occasions; (8) closely monitored her; (9) gave unrealistic time periods to close patient files; (10) eliminated programs in the HRP that Plaintiff had implemented, including the Acupuncture Program, Saturday Program and Friday Free Breakfast program; (11) declined to rebid for HRP; and (12) ultimately terminated Plaintiff and replaced her with Jennifer Marciano, a white female.*fn2

Plaintiff's Use of Telephones and Subsequent Termination

The Hospital's "Computer and Other Electronic Equipment Policy" states that all use of electronic equipment, including telephones must be business-related or otherwise authorized. In April 2006, an audit conducted by Sharon Thompson, the Hospital's Telecommunications Department manager, revealed that during the period January 1 to March 31, 2006, Plaintiff's extension was among those with the 100 most expensive calls. In fact, Plaintiff's call log showed almost $6,000 in calls, over $3,000 of which consisted of long-distance calls largely to Plaintiff's native country of Nevis and to St. Kitts. The audit was conducted without notice to or input from Plaintiff's supervisors.*fn3 Plaintiff claims that she had permission to make such calls from a previous supervisor no longer at the Hospital, and that she conducted Hospital business in Nevis. She also insists that others made the calls, as her extension is not blocked from making long-distance calls.

On or about May 8, 2006, Jasen Nhambiu, Director of Labor Relations, a black male, reviewed Plaintiff's call log, and contacted Plaintiff and gave her an opportunity to explain it. Plaintiff did not deny making the calls, and claimed that they were made to HRP patients and in furtherance of her volunteer outreach efforts. Plaintiff conceded that she did not have permission from her current supervisors to make these calls. Plaintiff was given the opportunity to confirm her claim that the calls were business-related by producing documentation, but she was unable to do so. Moreover, Mr. Nhambiu attempted to call some of the long-distance numbers listed on Plaintiff's call log, and none of the individuals contacted would confirm any affiliation with the Hospital. After Plaintiff's termination, at her unemployment hearing, Plaintiff created a list of Hospital patients that she contended were located in the Caribbean and could account, at least in part, for the long-distance calls on her Telephone Usage Report. It was ultimately determined that none of these patients was located in the Caribbean, nor were they patients or clients of the HRP.*fn4

The Hospital terminated Plaintiff's employment effective May 12, 2006 due to her telephone policy violation; Evdokas ultimately relayed the termination decision to Plaintiff. Three other Hospital employees whose violation of the telephone usage policy was revealed by Ms. Thompson's investigation were also terminated in approximately the same time frame.


Plaintiff filed a Complaint on December 17, 2007 and an Amended Complaint on April 30, 2008.*fn5 The Hospital filed a motion to dismiss and on August 18, 2008, the Court dismissed Plaintiff's age, gender and constitutional claims in their entirety; all claims arising from acts that occurred prior to December 21, 2005 as time-barred; all of Plaintiff's claims against Evdokas; and all Plaintiff's Title VII claims against Esteves. Plaintiff's remaining claims are for race/color discrimination and hostile work environment under Title VII and § 1981, and for FCA violation.


A. Legal Standard on a Motion for ...

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