The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
In this action, Plaintiff Alina Kolesnikow claims that Defendant Hudson Valley Hospital Center ("HVHC") unlawfully discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), by terminating her employment because of her age and Polish national origin. (Cmplt. ¶¶ 1, 96-99)*fn1 Kolesnikow further claims that HVHC violated the Fair Labor Standards Act and the New York Labor Law by failing to pay her all the overtime wages due her and by failing to pay her for accrued, unused vacation and sick time when it terminated her employment. (Id. ¶¶ 1, 100-03) Kolesnikow also asserts claims under New York law against HVAC and Catherine McNamara, her former supervisor, for intentional infliction of emotional distress and assault and battery. (Id. ¶¶ 1, 104-07)
Defendants have moved for summary judgment on all of Kolesnikow's claims. (Docket No. 37) For the reasons stated below, Defendants' motion is DENIED as to her New York Labor Law claim for vacation and sick pay, and is otherwise GRANTED.
Summary judgment is warranted 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), and 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.PLAINTIFF'S DISCRIMINATION CLAIMS
Courts analyze Title VII and ADEA claims under a well-established burden-shifting framework, under which: the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate "some legitimate, non-discriminatory reason" for its action. If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer's determination was in fact the result of . . . discrimination. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (citations omitted) (describing framework for deciding Title VII cases); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (Title VII framework applies to ADEA claims).
"It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," and that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). As in any other case, "an employment discrimination plaintiff faced with a properly supported summary judgment motion must 'do more than simply show that there is some metaphysical doubt as to the material facts'. . . . She must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The Court is mindful that "direct evidence of . . . [discriminatory] intent will only rarely be available, . . . [so] 'affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Holcomb, 521 F.3d at 137. However, the Court must also "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). A plaintiff must offer "concrete particulars," id. at 451-52, not "[m]ere conclusory statements, conjecture or speculation," in order to defeat a properly supported motion for summary judgment, Gross v. Nat'l Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). See also Holcomb, 521 F.3d at 137 ("Even in the discrimination context . . . a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").
1. HVHC's Decision to Hire Plaintiff
Defendant HVHC is a 128-bed hospital in Cortlandt Manor, New York. (Def. Rule 56.1 Stat. ¶ 1)*fn2 Plaintiff Kolesnikow, who is of Polish national origin, commenced employment at HVHC in September 2002, at which time she was 53 years old. (Id. ¶¶ 2-4) Kolesnikow worked in HVHC's Brillinger Unit as a nursing assistant. (Id. ¶ 2)
Defendant McNamara was the Clinical Nurse Manager for the Brillinger Unit and was Kolesnikow's direct supervisor. (Id. ¶¶ 9, 12) In order to obtain her position, Kolesnikow interviewed with McNamara, who is seven years older than her, and McNamara's supervisor, Karen Keeler, the Administrative Director of Patient Services, who is three years younger than Kolesnikow. (Id. ¶¶ 4, 9, 11, 13, 17-18) McNamara had ultimate supervisory authority over nursing staff in the Brillinger Unit and made the decision to hire Kolesnikow. (Id. ¶¶ 10, 16) Kolesnikow was initially hired to work part-time. (Id. ¶ 2) In March 2003, McNamara offered Kolesnikow the opportunity to work full-time, which she accepted. (Id. ¶¶ 19-20)
2. Disciplinary Actions Against Plaintiff
McNamara gave Kolesnikow a favorable performance review for the period from September 2002 through September 2003, but commented that Kolesnikow "sometimes oversteps her role as a [nursing assistant]." (Def. Rule 56.1 Stat. ¶¶ 33-34) Keeler had met with Kolesnikow to counsel her concerning this issue on August 21, 2003. (Id. ¶¶ 23-24) At that meeting, Keeler discussed an incident in which Kolesnikow had checked a patient's blood sugar level at the wrong time, and also reprimanded Kolesnikow for arguing with a registerednurse -- in the presence of a patient -- about the appropriate method of toileting the patient. (Id. ¶¶ 25-29)
Kolesnikow was next counseled on November 4, 2003, after allowing a patient to eat despite having been informed that the patient was scheduled for surgery and therefore was not allowed to eat. (Id. ¶¶ 35-36) She was given a warning for this incident and was suspended for two days.*fn3 (Id. ¶ 36)
Kolesnikow was given another warning in May 2004 based on allegations by two co-workers that she had made racially insensitive comments. (Id. ¶¶ 37, 45) One co-worker, who is Caucasian, reported that Kolesnikow questioned her "about why she married a black man" after seeing the co-worker's son. (Id. ¶ 38) Another co-worker, who is African-American, reported that after she told Kolesnikow that she worked two jobs, Kolesnikow "expressed surprise and stated that she thought black people were lazy." (Id. ¶ 39) These alleged comments were reported to Keeler, who met with Kolesnikow to discuss the first comment,*fn4 and also consulted with HVHC's human resources director, before making a decision to discipline Kolesnikow. (Id. ¶¶ 37, 43; Def. Ex. I) Kolesnikow was given a warning and was instructed to contact HVHC's employee assistance program for sensitivity training.*fn5 (Def. Rule 56.1 Stat. ¶ 45)
3. The Termination of Plaintiff's Employment
The next incident for which Kolesnikow was counseled, and which led to the termination of her employment, occurred on August 2, 2004. On that day, HVHC was undergoing a survey by the Joint Commission on Accreditation of Health Care Organizations, which oversees the quality and safety of healthcare provided at accredited organizations. (Def. Rule 56.1 Stat. ¶ 52) One of HVHC's sanitary rules prohibits employees from placing patient food trays on the floor, and Kolesnikow was aware of the rule. (Id. ¶ 53) However, on the day of the survey, Kolesnikow placed a patient's food tray on the floor near the doorway of a patient's room, where it could be seen from the hallway. (Id. ¶ 54)
That same day, Kolesnikow was assigned to provide one-to-one care for a post-surgical patient. (Id. ¶ 46) When providing one-to-one care, a nursing assistant is not permitted to leave the patient alone. (Id. ¶ 47) McNamara saw Kolesnikow in the hallway twice that day, while Kolesnikow was supposed to be providing one-to-one care. (Id. ¶¶ 49-50; McNamara Aff. ¶¶ 28-29) McNamara was "under the impression" that the patient was suicidal, because that was a frequent reason for providing one-to-one care, but this patient was not in fact suicidal. (McNamara Aff. ¶ 26) After the second occasion that McNamara saw Kolesnikow in the hallway -- this time with a cup of coffee -- she reported to Human Resources that Kolesnikow had left the patient unattended. (Def. Rule 56.1 Stat. ¶¶ 49-51; see also Johnson Aff. ¶ 16 (testimony of Director of Human Resources stating that Keeler and McNamara told her that Kolesnikow had left a patient unattended while she was performing a one-to-one watch))
On August 12, 2004, McNamara instructed Kolesnikow to meet with Keeler. (Pltf. Dep. 243:13-23) Keeler asked Kolesnikow whether she had placed the food tray on the floor on August 2. (Id. 244:19-21) Kolesnikow admitted that she had. (Id. 244:22) Referring to the prior disciplinary incidents, Keeler told her that "this is the third time," and that her employment was terminated. (Id. 244:20-245:9) Kolesnikow subsequently told Ruth Johnson, HVHC's director of human resources, that she had put the tray on the floor because her co-workers would not help her. (Id. 48:21-49:24)
Keeler and McNamara recommended terminating Kolesnikow's employment, and their determination was approved by Johnson and other HVHC officers. (Johnson Aff. ¶ 18)
B. Plaintiff's Prima Facie Case of Discrimination
To establish a prima facie case of national origin or age discrimination, a plaintiff must offer evidence showing, inter alia, that her termination from employment occurred "under circumstances giving rise to an inference of discrimination." Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal quotation omitted). Her burden in doing so "'is not onerous'" -- indeed, it is "de minimis," Beyer, 524 F.3d at 163 -- and is satisfied by "evidence that raises a reasonable inference that the action taken by an employer was based on an impermissible factor." Holcomb, 521 F.3d at 138 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). While a low standard applies to the prima facie case determination, "a plaintiff's case must fail if she cannot carry this preliminary burden." Beyer, 524 F.3d at 163.
HVHC argues that it is entitled to summary judgment because Kolesnikow has not offered evidence that raises a reasonable inference that her employment was terminated due to her national origin or age. (Def. Br. at 9-13) Kolesnikow argues that an inference of discrimination is warranted here based on (1) certain comments that were made to her; (2) the average age of nurses in the units in which she worked; and (3) evidence that HVHC "unfairly" disciplined her during the course of her employment. (Pltf. Br. at 4-5) As explained below, Kolesnikow's evidence on these issues is insufficient to give rise to an inference of national origin or age discrimination. (See infra pp. 11-28)
A plaintiff may, however, establish that her termination occurred in circumstances giving rise to an inference of discrimination by showing that her position remained open or that she was replaced by someone outside her protected class. Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 187 (2d Cir. 2006) (plaintiff may establish inference of age discrimination at prima facie stage by showing that she "was replaced by someone substantially younger" (internal quotation omitted)); Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) ("[T]he mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis.").
Kolesnikow has offered evidence that during the two months after her termination only one nursing assistant was hired for her former unit. (Pltf. Ex. 3) That nursing assistant, Hermelinda Arce, was 36 at the time -- nearly 20 years younger than Kolesnikow -- and is Hispanic. (Id.) Therefore, for purposes of deciding Defendants' motion, the Court will assume that Kolesnikow was replaced by Arce, who was substantially younger and of a different national origin, and that this fact establishes Kolesnikow's prima facie case with respect to both of her discrimination claims.*fn6
C. Plaintiff Has Not Offered Sufficient
Evidence for a Jury To Find In Her Favor
HVHC has offered a legitimate, non-discriminatory reason for its decision to terminate Kolesnikow's employment: it believed that she had engaged in "misconduct" on August 2, 2004 by leaving a post-surgical patient unattended during a one-to-one care assignment and by placing a patient's food tray on the floor, and decided that this misconduct warranted termination in light of earlier disciplinary incidents and warnings. (Def. Br. at 13)
Therefore, to defeat summary judgment, Kolesnikow must "raise sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence that the decision to fire h[er] was based, at least in part," on her age and national origin. Holcomb, 521 F.3d at 141. Like most plaintiffs, Kolesnikow attempts to meet her burden by showing that "the employer's stated reason for the adverse employment action is entirely pretextual." Id. (explaining that "in many cases, a showing of pretext, when combined with a prima facie case of discrimination, will be enough to permit a rational finder of fact to decide that the decision was motivated by an improper motive"). Kolesnikow also argues that certain comments made by HVHC employees, and the average age of nursing assistants in her unit, support a finding of discriminatory intent. However, Kolesnikow has not offered sufficient evidence for a jury to find that HVHC's stated reason for terminating her employment was pretextual or that the decision to terminate her employment was motivated by discriminatory animus.
1. Plaintiff Has Not Offered Evidence Showing Pretext
Kolesnikow argues that a jury could find that HVHC has offered "inconsistent reasons" for terminating her employment, and could therefore conclude that its stated reasons are a pretext for discrimination. (Pltf. Br. at 17-18) She also argues that a jury could find pretext because it could conclude that HVHC and McNamara "falsely accused" her of various misconduct, including, most significantly, leaving a suicidal ...