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David I. v. Daughters of Jacob Nursing Home

July 12, 2011


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

Before the Court is Defendant's Motion for Summary Judgment. (Doc. 15.) For the reasons stated below, the motion is granted.



The following facts are undisputed except where noted.*fn1 Plaintiff was hired by Defendant as a respiratory therapist on June 16, 2003, when he was 70 years old. (D's 56.1 ¶ 3.)

His duties included caring for and treatment of ventilator-dependent patients. (Id. ¶¶ 5--7.) Although hired part-time, he worked at least 75 hours every two weeks, and was given salary increases during his tenure. (Id. ¶ 4.) Plaintiff is a Taiwanese male who was approximately 75 years old at the time of his termination on July 22, 2008. (Affidavit of Plaintiff David Young (Doc. 18, Ex. 1) ("Young Aff.") ¶ 6.) In 2008 Defendant's staff of 528 consisted of approximately 144 Hispanic employees, 19 white employees, 315 African-American employees and 50 Asian employees. (D's 56.1 ¶ 29.)

On July 22, 2008, Plaintiff was terminated for failing to provide adequate and timely care to a ventilator-dependent patient in distress and for inappropriate verbal interactions with that patient on July 19, 2008. (Id. ¶ 8.) The termination followed an internal investigation of the July 19, 2008 incident. (Id. ¶ 9.) The patient in question reported to Defendant's personnel that some time before July 19, 2008, Plaintiff had turned down the patient's ventilator setting, which caused the patient discomfort. (Id. ¶ 10.) When the patient asked Plaintiff why he had adjusted the ventilator, Plaintiff-according to the patient-waved him off and said to keep eating. (Id.)

The patient then pushed Plaintiff's hand away from the ventilator and told Plaintiff to get away. (Id. ¶ 11.) On July 19, 2008, the patient requested of a nurse that someone suction him because his chest felt tight. (Id. ¶ 13.) The patient heard the nurses make that request of Plaintiff several times, but Plaintiff refused to respond-a fact confirmed by the nurses on duty, who reported requesting Plaintiff to care for the patient several times, a request with which he complied only when they threatened to report him to the nurse in charge. (Id. ¶¶ 13--14.) Plaintiff does not specifically deny refusing to respond, although he says he did not want to tend to the patient, was afraid to do so, and asked two nurses to accompany him. (Young Aff. ¶¶ 13--14.) According to the charge nurse, the patient was bedridden and incapable of causing physical harm to Plaintiff. (Declaration of Maryse Barthelemy (Doc. 16, Ex. J) ("Barthelemy Decl.") ¶ 16.)

The patient reported that after Plaintiff finally entered his room, he stood in front of the patient and berated him, saying, "[s]o you need me now," or "[s]o now you need me." (D's 56.1 ¶ 16.) According to the nurses, Plaintiff refused to treat the patient until he apologized, (id. ¶ 18), which Plaintiff denies, (Young Aff. ¶¶ 9--10). The patient, who reported fearing for his life, repeatedly apologized for the earlier incident in which he had pushed away Plaintiff's hand. (D's 56.1 ¶¶ 17--18.) Plaintiff then suctioned the patient quickly, two or three times, and only pushed the catheter halfway down the patient's throat, leaving him in continued discomfort. (Id. ¶ 19.) The patient reported his continued discomfort to a nurse, who then tended to the patient, finding he had a mucus plug, which can lead to serious problems and which should not be found after proper suctioning. (Id. ¶ 20.) The patient stated that he did not want to be cared for by, or be anywhere near, Plaintiff in the future, and that Plaintiff "should be on the killer's list because he is rough." (Declaration of Gary Lipperman (Doc. 16, Ex. I) ¶ 11.)

The charge nurse questioned Plaintiff about the improper suctioning, and Plaintiff became very angry, shaking the nurse by the shoulders and claiming that the patient had done the same thing to him several weeks prior, on June 28, 2008. Plaintiff claimed that the patient jumped from the bed, pushed and strangled Plaintiff, and threw Plaintiff out of the room, which the patient denied and which, according to the nurse, would have been impossible given the patient's condition. Plaintiff's verbal report of this incident on June 19, 2008 was the first the charge nurse had heard of it. (Barthelemy Decl. ¶¶ 12--19.)

The Director of Nursing questioned Plaintiff on July 22, 2008, and Plaintiff denied that anything unusual had occurred the previous weekend. (D's 56.1 ¶ 21.) The Director of Nursing decided to terminate Plaintiff based on the incident, (id. ¶ 22), which was one of a series of patient complaints Plaintiff had received, (id. ¶¶ 23--24). Plaintiff had been suspended for 30 days in 2004 for walking off the job without adequate coverage and for inappropriate interactions with several patients, as reported by their family members. (Id. ¶ 24.) In March 2005, a patient's family member complained about Plaintiff's rough treatment of the patient during suctioning and Plaintiff's use of the wrong catheter. (Id.) The following month, two patients were removed from his care following complaints about his suctioning and his attitude. (Id.) The month after that, another patient was removed from Plaintiff's care after the patient began vomiting during suctioning and Plaintiff left a nurse to clean up without attempting to find out why the patient was vomiting. (Id.)

In January 2005, Plaintiff filed a complaint against Defendant with the New York State Division of Human Rights ("DHR"), challenging as discriminatory the two 30-day suspensions from 2004, among other things. (Id. ¶ 41 n.1.) The DHR dismissed the case on the merits, after which Plaintiff sued Defendant in this Court in 2005, claiming discrimination based on age, race, and national origin. That case was settled in 2007. (Id.)

Plaintiff asserts that he was told by the charge nurse that the Chief Executive Officer ("CEO") of Defendant once said that he wanted to lay off older workers who should be retired already, (Young Aff. ¶ 30), but admits that he is not aware of the Director of Nursing, who made the decision to terminate Plaintiff, making any derogatory comments, (D's 56.1 ¶ 33). The charge nurse denies having reported any such thing to Plaintiff. (Barthelemy Decl. ¶ 21.)

The first report Plaintiff made of the patient's alleged June 28, 2008 attack on him was made to the charge nurse verbally on July 19, 2008, when she questioned him about his alleged refusal to care for the patient on that date. (D's 56.1 ¶ 37.) Plaintiff's first written report of the alleged June 28, 2008 attack was on a form dated July 22, 2008 (the date of his termination), and he testified that he provided this form to Defendant on July 23 or 24, 2008. (Id. ¶ 35.) Records from Plaintiff's doctor show that at a visit on July 21, 2008-the day before his termination- Plaintiff told his doctor that he had been injured three months earlier while doing exercises at his home, and mentioned nothing about an attack by a patient. (Id. ¶ 38.) The medical records also contain an entry dated August 20, 2008, which reads, "Addendum: On 8/13/08 [patient] is now reporting pain originated from accident on 6/28/08." (Id. ¶ 39.)

On March 23, 2009, Plaintiff filed a charge with the United States Equal Employment Opportunity Commission ("EEOC"), alleging discrimination by Defendant on the basis of race, age, color, national origin, and sex, as well as retaliation. The EEOC dismissed the charge on June 1, 2009, (id. ¶ 41), after which Plaintiff filed the instant action on August 26, 2009, (id. ¶ 42). His Amended Complaint advances claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., that his termination was the result of discrimination based on gender, race, national origin, age and color. He also advances a Title VII claim alleging retaliation based on his prior civil action, as well as claims under ...

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