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Volmar v. Cold Spring Hills Center for Nursing and Rehabilitation

September 14, 2009

MYRLANDE VOLMAR, PLAINTIFF,
v.
COLD SPRING HILLS CENTER FOR NURSING AND REHABILITATION, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Myrlande Volmar ("Volmar" or "Plaintiff") commenced this action on April 5, 2007, against Cold Spring Hills Center for Nursing and Rehabilition ("Defendant" or "Cold Spring"). Plaintiff alleges discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994) ("Title VII") and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq. ("ADA"). Presently before the Court is Defendant's motion for summary judgment. For the reasons set forth below, Defendant's motion is GRANTED.

BACKGROUND

The following facts are taken from the Parties' 56.1

Statement, Counter-Statement and the exhibits thereto.*fn1

Defendant employed Plaintiff as a Certified Nursing Attendant from approximately January 19, 2002, to December 13, 2006. (Def's. R. 56.1 Statement ("Def's. Stmt.") ¶ 1.) Plaintiff never told anyone at Cold Spring that she is HIV-positive, and considered her condition private. (Id. ¶ 13.) Plaintiff does not know of anyone at Cold Spring who would have known about her condition or who would have read her medical examinations. (Id. ¶ 18.) Plaintiff believes that someone may have contacted her previous doctors without her permission.*fn2 Plaintiff further alleges that Defendant could have learned of her HIV-positive status by contacting North Shore Hospital; according to Plaintiff, the Vice-President of Cold Spring was friends with the Vice-President of North Shore, and therefore there was a possibility that Cold Spring contacted North Shore to inquire about Plaintiff. (Id. ¶¶ 19, 20.) Plaintiff bases her belief that the Vice-Presidents are friends primarily on a photo she saw of two individuals shaking hands. (Id. ¶ 20.) Plaintiff does not know if a conversation regarding her HIV-status did, in fact, take place. (Id. ¶¶ 21, 22.)

On August 2, 2002, Defendant suspended Plaintiff for three days for failing to provide care to a resident in a timely manner. (Id. ¶ 24; Def.'s Ex. 2.) Plaintiff was suspended on October 8, 2003, in part for inappropriately using a resident's property. On June 28, 2005, Plaintiff was suspended for insubordination, poor job performance, and inappropriate behavior.

(Def.'s Ex. 4.) On June 7, 2006, Plaintiff was suspended for failure to provide care in a timely manner. (Def.'s Ex. 5.)

On June 13, 2006, Plaintiff filed a complaint with the New York State Division of Human Rights alleging that Defendant discriminated against her on the basis of her disability. Plaintiff did not inform anyone at Cold Spring that she had filed a complaint. (Def's. Stmt." ¶ 15.)

On December 1, 2006, Plaintiff was on duty in the dining room when another employee brought in an elderly resident, L.G., with dementia. (Id. ¶ 30.) L.G. was agitated and did not want to be in the dining room. (Id. ¶ 31.) While in the dining room, L.G. flailed her arms, and yelled and screamed. (Id.) Plaintiff did not call for help. (Id. ¶ 32.) Randi Marquis ("Marquis"), Plaintiff's supervisor, came into the dining room and saw L.G. behaving in an agitated manner. (Id. ¶ 33.) Marquis asked Plaintiff to leave the dining room. Plaintiff did not immediately do so, and instead responded, "I have dining room duty 3:30 to 4". (Id. ¶ 34.) Marquis again asked Plaintiff to leave the dining room.

Marquis testified that she witnessed Plaintiff speaking loudly back at L.G. when she entered the dining room. (Id. ¶ 36.) Jean Impert, a Certified Nursing Assistant, provided a written statement stating that he witnessed Volmar raising her voice at L.G. (Def.'s Ex. 8.) Mary Beth Heinicke ("Heinicke"), the Director of Social Work, provided a written statement stating that she witnessed Plaintiff yelling at Marquis in the dining room. Heinicke also asked Plaintiff to leave the dining room because Plaintiff's yelling created an unproductive and agitated atmosphere in front of the resident. (Def.'s Ex. 9.) Bob Savarese provided a written statement stating that Plaintiff attempted to push a table in front of L.G., and L.G. became more agitated and pushed the table away. Savarese further stated that Plaintiff would not leave when asked by Marquis. (Def.'s Ex. 7.)

On December 13, 2006, Audrey Marchand ("Marchand"), Vice-President of Cold Spring, terminated Plaintiff. Marquis, Marchand, and Heinicke testified that they did not know that Plaintiff was HIV-positive. (Def.'s Ex. 8-10.)

On April 5, 2007, Plaintiff filed a Complaint with this Court alleging that Defendant discriminated against her on the basis of her disability ...


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