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Perez v. New York and Presbyterian Hospital

November 4, 2009

LUIS ANGEL PEREZ, PLAINTIFF,
v.
THE NEW YORK AND PRESBYTERIAN HOSPITAL, DEFENDANT.



The opinion of the court was delivered by: Sand, J.

MEMORANDUM & ORDER

Luis Angel Perez ("Plaintiff") brings this action against The New York and Presbyterian Hospital ("Defendant" or "the Hospital") seeking money damages for the Hospital's alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. ("Title VII"). Plaintiff alleges that the Hospital discriminated against him based on his race and national origin, created a hostile work environment, and retaliated against him for complaining of Title VII violations. Presently before this Court is the Hospital's motion for summary judgment. Because We find that there are no genuine issues of material fact, We grant the Hospital's motion for summary judgment on all claims.

I. Background

Plaintiff is a bilingual English/Spanish-speaking Hispanic male of Puerto Rican descent, and holds a bachelor's degree in psychology from the City University of New York, which he earned in 1996. (Pls. Dep. 1, 41.)*fn1 The Hospital hired Plaintiff on July 29, 2002 as a mental health worker ("MHW") assigned to the inpatient psychiatric unit at the Hospital's Allen Pavilion campus ("Psychiatric Unit").*fn2 (Compl. ¶¶ 5, 9; Minsky Aff. ¶ 9.) Plaintiff's responsibilities included observing patients and reporting changes or problems to supervisors or nurses; escorting patients to other areas of the Allen Pavilion; washing and dressing patients; performing patient room searches; "identify[ing] unit and/or patient care problems and participat[ing] in problem solving approaches;" "participat[ing] in developing the milieu as part of the inter-disciplinary team;" and helping to "structure [patient] leisure time," inter alia. Though the parties dispute some details of the job description, they agree that the job responsibilities did not include delivering psychotherapy. (Minsky Aff. Ex. E; Pls. Mem. Opp. Mot. Summ. J. ("Pl's. Br.") Ex. E.) MHWs are required to implement the tasks assigned by nursing staff in the Psychiatric Unit. (Minsky Aff. ¶¶ 10-11; Pl's Br. Ex. E.)

The patients in the Psychiatric Unit are approximately 50% bilingual English/Spanish-speaking Hispanics and 30% monolingual Spanish-speaking Hispanics. (Pl's. Br. Ex. A 2.) The physician in charge of psychiatric care, Lourdes Dominguez, M.D., and the Assistant Chief, Giovanni Nunez, M.D., are of Hispanic national origin. (Minsky Aff. ¶ 8.) Being a bilingual English/Spanish-speaker is a job hiring preference for MHWs. (Minsky Aff. Ex. E; Pl's. Br. Ex. E.)

Hospital policy, as set by medical staff at the Psychiatric Unit, requires all communications in the vicinity of patients to be in English unless otherwise directed. The Hospital's proffered rationale for this policy is to avoid "splitting"-a situation in which "a patient hears two different languages and refuses to cooperate with English speaking nurses and doctors[,] thereby undermining treatment." (Minsky Aff. ¶ 8.) The Hospital maintains that it "does not have an English-only policy." (Minsky Aff. ¶ 8.) Plaintiff was frequently required to translate for and speak to Spanish-speaking patients with limited or no proficiency in English. (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7, at 3.)

Plaintiff alleges that he was "thrust into a hostile work environment" and "relentlessly reprimanded for speaking Spanish to co-workers and patients."*fn3 (Compl. ¶ 24.) He alleges that his nursing supervisors "frequently used ethnic slurs and engaged in conduct denigrating [him] because of his national origin," including mocking patients with limited English proficiency, mocking the Spanish language, demeaning him for speaking Spanish to patients, and referring to Hispanic individuals as "those people." (Compl. ¶ 25; Pl's. Dep. 1, 211, 204-06, 81, 183, 186.) Plaintiff also alleges that the overheard several statements made by supervisors encouraging black employees not to fraternize with Hispanic employees or patients. (Compl. ¶ 27-28.)

On January 11, 2003, an altercation occurred between a patient and Psychiatric Unit staff that left some staff members hospitalized; Plaintiff was not at the Hospital at the time. (First Am. Compl. Ex. B.) When Plaintiff learned what had transpired, he was angry that he was not informed of the incident, and he wrote a letter to Dr. Nunez. (First Am. Compl. Ex. B.) The letter suggested various changes to staff training and the way crisis incidents are handled and investigated. (First Am. Compl. Ex. B.) On January 22, 2003, Plaintiff was disciplined by nurse manager Darlene Galashaw for conducting an "investigation" into the incident by interviewing patients and staff and sending the results in a letter to Dr. Nunez. (McGuire Aff. Ex. D.) The Nurse Manager explained the "unit and department" investigation procedures, and counseled Plaintiff not to interfere with official investigations and to remain within the boundaries of his job description.*fn4

(McGuire Aff. Ex. D.)

Although Plaintiff never utilized the hospital's anti-harassment grievance program, (Minsky Aff. ¶ 7), Plaintiff alleges that he complained about the Hospital's discriminatory treatment of Hispanic patients and employees on several occasions. (Compl. ¶ 30). In June 2003, Plaintiff circulated an eight-page memorandum to Hospital administrators lodging various complaints about Hospital policies. (Compl ¶ 32; Pl's. Br. Ex. M.) The June 2003 memorandum protested that the "majority of nursing staff" was "simply unprofessional," and complained of nurses' negative attitudes and actions towards patients and MHWs, inter alia. (Pl's. Br. Ex. M.) Although Plaintiff mentions several incidents involving monolingual Spanish-speaking patients, the memorandum complains of neither racial slurs nor reprimands for speaking Spanish. (Pl's. Br. Ex. M.) Plaintiff alleges that he was admonished for filing this report in a meeting with Hospital administrators, who seemed more concerned by the fact that he had circulated the memorandum to so many people than by the substance of his allegations. (Compl. ¶ 33; First Am. Compl. 1.)

On August 15, 2003, Dr. Nunez came upon a crisis situation in which a number of Hospital employees were attempting to medicate a hostile patient. When Dr. Nunez entered the room, she observed Plaintiff speaking Spanish to the patient while a nurse simultaneously spoke English to the patient. (Pl's. Dep. 2, 241.) Dr. Nunez counseled Plaintiff not to speak Spanish to a patient unless instructed to do so by a physician. (Compl. Ex. C 1.) Plaintiff wrote a letter to Dr. Nunez the same day explaining that he was speaking Spanish in an attempt to convince the bilingual patient to drink his medication voluntarily rather than be restrained and receive an injection. (Compl. Ex. C 2.) In the letter, Plaintiff stated that he "disagree[d] with [the 'anti-splitting'] argument" as explained to him that day by Dr. Nunez and two nurses because he believed it was more effective to communicate in the patient's native language in a crisis situation. (Compl. Ex. C 2.) Plaintiff stated that he always directed the patients to obey the English speaking staff when he spoke to them in Spanish. (Compl. Ex. C 2.)

On August 26, 2003, Plaintiff received a "final written warning" from nurse manager Dorrette Johnson*fn5 for the August 15, 2003 incident, playing a videotape for patients that Plaintiff allegedly brought from his house on August 17,*fn6 and refusing to take his break when assigned on August 21.*fn7 (Compl. ¶ 35, Ex. B 2, Ex. D.) The final written warning charged that Plaintiff had failed to follow directions and protocols and had engaged in "disruptive behavior related to patient care." (Compl. Ex. B 1.) The warning ordered Plaintiff to work within the scope of his job title in the future, "never to usurp or take over the care of a patient from a nurse or a physician," "accept your assignment including dinner breaks," and "work under the direction of the R.N." (Compl. Ex. B 1-2.) The warning then threatened Plaintiff with termination if he ever worked outside the scope of his job responsibilities in the future. (Compl. Ex. B 1-2.)

Plaintiff alleges that there had been no prior written warnings or reprimands issued to him. (Compl. ¶ 37.)

On approximately August 30, 2003, Plaintiff responded to the final written warning with a letter addressed to three nursing supervisors and a human resources employee. (Compl. ¶ 39.) In the letter, he explained his actions and claimed that some of the allegations were false. (Compl. Ex. D 5.) He stated that he believed he was targeted because of his June 2003 memorandum, and that he disagreed with the classification of the warning as a "final written warning" rather than a "reprimand." (Compl. Ex. D 5.) Though he requested to "appeal" the final written warning, Plaintiff claims that this request and the complaints outlined in his June 2003 memorandum were ignored by Hospital staff. (Compl. ¶ 40.)

On November 1, 2003, Plaintiff wrote a letter to nursing supervisors and the Human Resources department regarding his disagreement with the policy of assigning male MHWs to escort female psychiatric patients to receive x-rays and conduct Maximum Observations (which entail supervision of patients at all times, including while dressing, washing, and using the bathroom). (First Am. Compl. Ex. F 3.) Plaintiff believed that these unsupervised, one-on-one assignments subjected male MHWs to an unreasonable risk of false accusations of sexual misconduct. (First Am. Compl. Ex. F.) In the letter, Plaintiff stated that both nurse manager Doris Burch and Dr. Nunez had reaffirmed to him that all male MHWs were required to do these assignments, but Plaintiff alleged that other male MHWs were uncomfortable with the policy and afraid to speak out.*fn8 (First Am. Compl. Ex. F 2.)

All claims based on specific events discussed up to this point in the Background section are time-barred by the 300 day statute of limitations for Title VII claims, as are all claims that pre-date November 4, 2004.*fn9 However, these events may be taken into consideration as background context for timely Title VII claims. Uddin v. City of New York, No. 07 Civ. 1356 (PAC) (DF), 2009 WL 2496270, at *13 (S.D.N.Y. Aug. 13, 2009) (citing Early v. Wyeth Pharms., 603 F. Supp. 2d 566, 572 (S.D.N.Y. 2009); Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).

About half a year later, in May 2004, Plaintiff circulated another memorandum entitled "The Underserved" to various Hospital administrative staff addressing the problems created by the fact that most of the patients at the Psychiatric Unit were Spanish-speakers, yet the majority of MHWs did not speak Spanish. (Compl. Ex. E.) The six-page memorandum began by noting that the conditions complained of in his June 2003 memorandum were "moving, slowly but surely, in the right direction." (Compl. Ex. E. 2.) It then requested various changes to more effectively serve Spanish-speaking patients, including hiring more Spanish-speaking staff, requiring all current MHWs to learn Spanish, and increasing Spanish language recreational materials for patients. (Compl. Ex. E.) The memorandum then requested a "significant makeover" of the MHW job description to include more one-on-one time with patients, less time cleaning, and more assignments of Spanish-speaking MHWs to monolingual Spanish-speaking patients. (Compl. Ex. E.) The memorandum ended by acknowledging the rationale behind the limited Spanish-speaking policy (avoiding a "split" between Spanish and English speakers) and disagreeing with it. (Compl. Ex. E.)

On May 17, 2004, Plaintiff was reprimanded by nurse manager Doris Burch for speaking Spanish to a patient, and a formal problem report was written. (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7, at 3.) Plaintiff claims he was called in to discuss the problem report with nurse manager Henny Kaufman on May 19, 2004; she read aloud the problem report which included "talking to a Spanish speaking patient" and "translating for the doctor." (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7, at 3.) Plaintiff claims that Ms. Kaufman said the complaints "seemed petty and ridiculous," but refused to give Plaintiff a copy of the problem report and told him to "do what ever they tell" him and to keep the conversation between Plaintiff and herself. (EEOC Charge, McGuire Aff. Ex. J 3.)

Plaintiff requested May 20, 2004 off for his birthday fifteen days in advance, and also made "several follow up calls." (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7, at 3.) The night before his birthday, the Hospital refused the request because no other MHWs could cover the shift, but Plaintiff took the day off anyway.*fn10 He was disciplined and not paid for the day. (Pl's. Dep. 1, 52-53.)

On May 24, 2004, Plaintiff was given a "last final written warning" for failing to work within the scope of his job responsibilities and sending out the May 2004 report. (McGuire Aff. F; Pl's. Dep. Ex. 15.) He was also given a memorandum that stated that "the department is interested in any suggestions any of the staff may have[,] . . . however, this should not be through the format of a written report. . . . Once again you have sent out what you have labeled a 'six page report' regarding your concerns . . . . [Y]ou were informed that . . . you were to address [concerns] with the appropriate staff. You continue to ignore this directive." (Pl's. Dep. Ex. 15.) The memorandum also alleged that Plaintiff was "walking around the unit with a journal where [he appeared] to be recording information about patients . . . ." (Pl's. Dep. Ex. 15.) The memorandum instructed Plaintiff to "follow [his assignments] without deviation," "not to counsel patients or sit with them [one-on-one] unless you have been directed to," "not to deliver psychotherapy," and to "address [any problems you may notice] directly to your supervisor or the assigned appropriate staff," inter alia. (Pl's. Dep. Ex. 15.) The memorandum ended by threatening him with termination for any further violations. (Pl's. Dep. Ex. 15.)

Plaintiff was also taken into a disciplinary meeting on May 24, 2004 in the Human Resources office with Dr. Dominguez and the Director of Human Resources. Plaintiff claims that Dr. Dominguez instructed him to refuse to translate for "Doctors, Nurses, or anyone that asks the Plaintiff for help," and told him that "eventually she will put something in writing for the rest of the Spanish-speaking staff to also refuse to translate." (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7, at 3.) Plaintiff was reprimanded again for speaking Spanish by a nurse on June 19, 2004. (EEOC Charge, McGuire Aff. J.)

On July 8, 2004, Plaintiff was suspended for three days for refusing to escort female patients to receive x-rays alone. (McGuire Aff. G.) Though Plaintiff had repeatedly objected to this assignment, (Pl's. Dep. 1, 242-45), he maintains that this accusation (made by Ms. Burch) was false because he was not in fact assigned to escort the patient in question.*fn11 (First Am. Compl. 7.)

Soon afterwards, Plaintiff requested time off due to "distress," but was ignored. (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7.) On August 9, 2004, he became ill with vertigo and took time off work for his illness; he did not return to work until August 28, 2004. (Pl's. Aff., Nov. 29, 2005, Pl's. Dep. Ex. 7.) Plaintiff had previously requested most of these dates off for vacation, but the request had been denied.*fn12 On September 1, 2004, Plaintiff was "banished" from work until he could obtain medical ...


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