The opinion of the court was delivered by: Lindsay, Magistrate Judge:
Plaintiff Marie-Ange Joseph ("Plaintiff" or "Joseph") commenced this employment discrimination action against defendant North Shore University Hospital ("Defendant" or the "Hospital") alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (the "ADA") and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") on the basis of disability and national origin. The parties have consented to the undersigned's jurisdiction pursuant to 28 U.S.C. § 636. Before the court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, Defendant's motion is granted.
The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are construed in the light most favorable to Plaintiff, the non-moving party, except as otherwise noted. See Iannuzzi v. American Mortg. Network, Inc., 727 F. Supp. 2d 125, 130-31 (E.D.N.Y. 2010); see Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
A. Plaintiff's Disciplinary History Defendant is a general hospital facility located in Manhasset, New York. (Pl.'s & Def.'s 56.1 Stmts. ¶ 3.) On April 29, 2002, the Hospital hired Joseph, an individual of Haitian national origin, as a part-time Outpatient Service Representative in the Hospital's Outpatient Registration Department. (Id. at ¶ 4.) Joseph was made a full-time Outpatient Service Representative at the Hospital on September 20, 2002. (Id.) She worked in a department that was comprised of six black employees (including Plaintiff and her supervisor Rosa Lee Raines), six Caucasian employees and eight Hispanic employees. (Id. at ¶ 8.) Of the six black employees, three of the individuals were of Haitian decent. (Id.) Plaintiff was a front-line Hospital employee, and as patients or visitors arrived at the Hospital, her job was to provide information, register patients, order patient tests, and document patient payments. (Id. at ¶ 5.) At all relevant times, Raines was Joseph's supervisor. (Id. at ¶ 6.)
The Hospital maintains an Employee Handbook, which plaintiff received, that sets forth "Service Excellence Standards" requiring employees to be courteous, compassionate, respectful and mindful of their responsibilities when interacting with patients and colleagues in the workplace. (Id. at ¶¶ 9-11.) Defendant's Service Excellence Policy for Workplace Environment states that "[f]ailure to adhere to any established service excellence standard will not be tolerated and will subject the employee to disciplinary action, including termination." (Id. at ¶ 15.) In addition, the Employee Handbook contains a Non-Discrimination and Non-Harassment Policy that sets forth procedures for employees to report any actual or perceived complaints of discrimination. (Id. at ¶ 14.) Plaintiff also received a copy of the Hospital's Dress and Appearance Standards (the "Dress Code") for employees which required front-line female employees to wear stockings at all times and prohibited "low cut" blouses. (Id. at ¶¶ 16-17.)
During her employment, between 2002 and 2007, the Hospital issued numerous disciplinary warning notices to Joseph for the failure to carry out work assignments, rude and unprofessional behavior, dress code violations, and insubordination. (Id. at ¶¶ 36-39, 40-42, 43, 45-46, 47-48, 52-54,66-67, 68-71.) The disciplinary notices included a notice issued (i) in October 2003 upon the complaint of Hospital security that Joseph engaged in a verbal altercation with a patient process which required security response; (ii) in April 2003 based on a patient's complaint that Plaintiff was rude and unprofessional to her; (iii) in April 2004 based on a patient's complaint that Plaintiff spoke to the patient in a loud and rude voice, permitting other patients to hear the patient's confidential information; (iv) on March 3, 2005 for wearing a blue jean skirt to work despite the fact that jeans are prohibited by the Dress Code; (v) on March 9, 2005 for wearing pink jeans to work wherein she was advised that if she broke the Dress Code rules again she would be sent home without pay; (vi) on June 13, 2005 for wearing a short dress without stockings that exposed her bare legs wherein she was told that if she violated the Dress Code again she would be sent home without pay; (vii) on June 24, 2005 and August 3, 2005, see infra, for wearing a dress and skirt without stockings that exposed her bare legs; (viii) on November 1, 2005 based on a patient complaint that Plaintiff spoke in a rude and derogatory manner and slammed documents down on the counter; (ix) on June 18, 2007 for belligerent conduct towards her supervisor, including slamming down reports on a desk in response to a question posed by her supervisor; and (x) on May 25, 2007, see infra, for disrespectful behavior towards her supervisor, including speaking loudly in front of patients, refusing to follow directions, slamming down reports. (Id.)
In addition, during this time period, the Hospital counseled Joseph and issued numerous disciplinary warning notices concerning errors she made with respect to outpatient test orders and physician information. (Id. at ¶¶ 31-34, 35, 44, 56-57, 58-59, 60, 62.) Those notices to Plaintiff included a warning (i) in December 2002 for failing to properly register a patient for specific tests ordered by doctors; (ii) in March 2003 for failing to properly order a lab test for a patient; (iii) in July 2003 for failing to register a patient for an essential test requested by a physician; (iv) in October 2003 for errors made in ordering a patient test which resulted in the patient being credited for the improperly ordered test and having to reschedule the proper test; (iv) in March 2005 for ordering a PSA test for a female patient which it was not requested by a physician and was an improper test for a female; (v) in February 2006 for ordering the wrong test for a patient after having been instructed on the proper procedure the day before; (vii) on April 19, 2006 for registering a patient with the incorrect physician information on the pre-registration forms; (viii) on April 24, 2006 for registering a patient with the wrong physician; and (ix) in March 2007 for failing to order the proper test for a patient, which then had to be canceled and reordered. (Id.)
Plaintiff never asserted that any of the disciplinary warning notices resulted from discrimination.
(1) Plaintiff's Foot Condition
According to Joseph, she suffers from a "foot condition" that prevents her from wearing stockings and closed toed shoes in the summertime. (Id. at ¶¶ 19-20.) In June 2005, Plaintiff's podiatrist, Daniel Girardi, M.D., diagnosed her foot condition as mild pes planus, commonly referred to as a bunion. (Monroy Decl., dated March 17, 2010, Exs. 13.) Plaintiff submitted a doctor's note from Dr. Girardi to the Hospital that stated, "Due to painful foot pathology [Joseph] cannot wear closed shoes or stockings that confine her toes." (Raines Decl., dated March 17, 2010, Ex. 4.) The Hospital excepted Joseph from its Dress Code requiring stockings at all times and permitted her to forego hosiery provided she wore either long pants or long skirts/dresses. (Pl.'s & Def.'s 56.1 Stmts. ¶ 27.)
(2) Plaintiff's Dress Code Violations
Plaintiff was issued multiple warnings for violations of the Dress Code for wearing inappropriate and revealing clothing including wearing low cut tops which exposed parts of her brassiere and short skirts/dresses which revealed parts of her underwear. In deference to Plaintiff's bunion problem she was exempted from the Dress Code requirement of wearing stockings as long as she otherwise attempted to cover her bare legs with pants or longer skirts/dresses. Nonetheless, on June 24, 2005, Supervisor Raines found it necessary to issue a warning regarding Joseph's violation of the Dress Code when she showed up in a short dress and no stockings. (Id. at ¶ 50 -51, 81, 82; Raines Decl., dated March 17, 2010, Ex. 13.) Specifically, the warning stated:
Ms. Joseph, I understand that you have a foot condition which prevents you from wearing hosiery. I therefore, granted you special permission to come to work without hosiery.
On Monday, June 13th, you came to work with a short dress and no hosiery, at which time I informed you that you need to wear pants, long skirt or long dresses until your condition improves. I further explained to you at that time, should [you] come in to work again with a short dress and no stockings [you] would be sent home without pay.
Today you appeared at work again in a dress and no hosiery. This is a violation of the dress code. I suggest in the future, that you follow the appropriate dress code or disciplinary action will be taken. (Raines Decl., dated March 17, 2010, Ex. 13.)
On August 3, 2005, Plaintiff again wore a short skirt without stockings. (Id., Ex. 14; Pl.'s & Def.'s 56.1 Stmts. ¶ 51.) Raines issued Joseph a handwritten notice advising her that she had been previously warned about the appropriate dress code and would have to put on stockings or sign out and go home for the day. (Id.) Plaintiff then purchased stockings from the Hospital gift shop and wore the hosiery for the remainder of her shift. (Monroy Decl., dated March 17, 2010, Ex. 9 at 179-82.)According to Defendant, Joseph continued to report to workwearing low cut blouses and short skirts in open defiance of the warnings she was given. (Raines Decl, dated March 17, 2010, ¶ 31.)
(3) Notice of Suspension for Insubordination and Dress Code Violations
On August 20, 2007, the Hospital issued Joseph a disciplinary warning notice regarding "Insubordination/Inappropriate Dress" and suspended Plaintiff for one day. (Pl.'s & Def.'s 56.1 Stmts. ¶¶ 86-87.) The disciplinary notice stated in relevant part:
On . . . August 14, 2007, you proceeded to remove your thigh-high hosiery while speaking with the Supervisor in her office. On August 15, you again removed your hosiery and worked the balance of the day while wearing an abbreviated skirt with your bare legs exposed. When I addressed your inappropriate behavior/attire you proceeded to sing, "Send me home or give me Monday off" in front of staff and patients. The issue of inappropriate attire/conduct (specifically skirt length, uncovered legs, revealing clothing) in violation of the hospital/system dress code policy has previously been discussed with you . . . .
On May 24, 2007 you were observed and warned about spraying an offensive and noxious substance in the Outpatient Registration Office.
I have spoken to you about your inappropriate attire and insubordination on several occasions. Any further violations of System/Hospital/Departmental Policy or Procedures the result will be immediate termination. (Id.; Raines Decl., dated March 17, 2010, Ex. 29.)
Joseph grieved the one-day suspension, but her suspension was upheld.*fn1 (Pl.'s & Def.'s 56.1 Stmts. ¶¶ 88-93.)
(4) Plaintiff's Termination
On September 7, 2007, Joseph's employment with the Hospital was terminated. (Pl.'s & Def.'s 56.1 Stmts. ¶ 103.) Plaintiff's termination notice stated the following:
On August 27, 2007, at 9:45 am, you told Ms. Delprincipe, Sr. Outpatient Representative, that you were going to take the empty boxes to your car. Ms. Delprincipe told you take them later, when you are on break or when leaving for the day. You ignored her direction, laughed at her in front of staff and patients and proceeded to take the boxes to your car. Ms. Joseph should have remained in the Front Registration Area to address the needs of the next patient. (You were aware, that the department was operating short staffed, as 2 employees were on vacation and normally there are 5 Outpatient Service Representatives on duty.)
On September 6, 2007, you again behaved inappropriately towards your supervisor in the presence of staff/patient. . . .
You have been counseled on many occasions regarding your inappropriate/insubordinate behavior. This is unacceptable and against the We Care Standards, The Caring Model, Service Excellence and Policy and Procedure regarding behavior towards your Supervisor. As you are aware, you were suspended on [8/20/07] for Insubordination/Inappropriate Attire. At that time, you were informed, in writing, that any further violations of System/Hospital/ Departmental Policy or Procedures the result would be immediate termination.
Your employment will be terminated effective immediately. (Id.; Raines Decl., dated March 17, 2010, Ex. 31.) Plaintiff received a copy of the September 7, 2007 termination notice, but refused to sign the bottom of the acknowledgment receipt.*fn2 (Pl.'s & Def.'s 56.1 Stmts. ¶ 104.)
Plaintiff filed an internal Hospital grievance of her termination.*fn3 (Id. ¶ 109.) On November 9, 2007, the Human Resources Manager notified Plaintiff in writing that the determination to terminate her employment was upheld and that the matter was closed. (Id. ¶ 111.)
On December 31, 2007, Joseph filed a complaint of employment discrimination with the United States Equal Employment Opportunity Commission ("EEOC") through a joint filing with the New York State Division of Human Rights (the "NYSDHR") charging the Hospital with disability, race, and national origin discrimination in violation of Article 15 of the New York State Executive Law. (Id. ¶¶ 119-20.) Following an investigation, on April 30, 2008 the NYSDHR dismissed the complaint. (Id.; Monroy Decl., dated March 17, 2010, Ex. 3.) On June 17, 2008, the EEOC adopted the NYSDHR's findings and dismissed the EEOC charge. (Id. at ¶ 121; Monroy Decl., dated March 17, 2010, Ex. 4.)
On March 21, 2008, Plaintiff filed a complaint in New York State Supreme Court, Nassau County alleging disability and national origin discrimination under New York State Executive Law. (Id. at ¶¶ 122-24.) Plaintiff voluntarily filed a ...