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Mirtha Lorenzo and Irene Rivera v. St. Luke's-Roosevelt Hospital Center

September 8, 2011


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Mirtha Lorenzo and Irene Rivera allege age-based discrimination against their employer, St. Luke's-Roosevelt Hospital Center (the "Hospital"), in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296, et seq. Lorenzo also alleges that the Hospital retaliated against her for complaining of discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. and the NYSHRL. The Hospital has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. I hereby grant summary judgment to the Hospital on both plaintiffs' age discrimination claims. I deny summary judgment on Lorenzo's retaliation claim.


A. Mirtha Lorenzo

1. Work History and Job Description

Mirtha Lorenzo, now 61 years old, was hired by the Hospital in 1971, at the age of 21. (Lorenzo Aff. ¶ 3.) She worked her way up the ranks in the Hospital's Women's Clinic (which became the Department of Obstetrics and Gynecology ("OB/GYN Department" or the "Department") sometime prior to 1987), from the position of Biller/Typist at her hire to OB/GYN Account Supervisor, her current position, to which she was promoted in 1998. (Id. ¶¶ 4-9.) She reported to Paul Orbe, the Assistant Administrator of the OB/GYN Department, and his supervisor, James Buhager, the Executive Director of the OB/GYN Department, through August of 2008.*fn1 (Buhager Decl. ¶¶ 3, 12.)

At the start of 2008, the year the alleged discrimination and retaliation occurred, Lorenzo regularly attended meetings related to departmental finances with the administration of the Department in her capacity as Account Supervisor. (Lorenzo Aff. ¶ 9.) She was also responsible for all of the Department's accounting and bookkeeping, including maintaining ledgers of all departmental transactions, computerized spreadsheet creation and bookkeeping, maintaining current balance information for all special fund accounts, verifying faculty practice plan transactions, processing deposits to the Department's special fund accounts, processing the Department's accounts payable, monitoring the Department's purchasing and service contracting, and any other accounting and bookkeeping her supervisors might assign her.*fn2 (D. 56.1 ¶ 102*fn3 ; see Lorenzo Dep. at 120-29.) In her role as Account Supervisor, Lorenzo also supervised junior clerical staff. (Lorenzo Aff. ¶ 9.) Although she alleges that her job responsibilities have changed due to age discrimination and retaliation, her title has not changed and her salary has not been reduced. (P. 56.1 ¶¶ 57-58.)

2. Sara Crique Incident

On April 10, 2008, Sara Crique, an administrator in the OB/GYN Department, entered the room where the Department's secretaries sat and, looking at the secretaries' name plates, exclaimed "What's the deal with all these immigrants with names ending in Ks?" (Lorenzo Aff. ¶ 18.) Lorenzo and other employees in the Department deemed Crique's remark to be an ethnic slur. (Id. ¶ 19.) They reported it the next day to Orbe, who brought the matter to Buhager. (Orbe Decl. ¶ 19.) At a meeting with Lorenzo and the other complainants shortly after the incident was reported, Buhager insisted that there would be no repercussions or retaliation against them for bringing the complaint. (Buhager Decl. ¶ 15; see Orbe Decl. ¶ 20.) Janette Hicks, a Labor Relations Analyst from the Hospital's Department of Labor and Employee Relations ("Labor Department"), investigated the incident and met with each complainant. (Hicks Decl. ¶ 6.) The Labor Department then arranged a meeting of Buhager, Crique, and the complainants, at which Crique apologized for her remarks. (Buhager Decl. ¶ 17.) Lorenzo did not attend that meeting because she was ill, but she apparently "did not find [Crique's] explanation credible and did not consider it a sincere apology." (Lorenzo Aff. ¶ 19.)

On June 12, 2008, Lorenzo wrote to the president of the Hospital, Frank Cracolici, to inform him that she believed the Hospital was reacting improperly to the alleged ethnic slur. (Lorenzo Aff. ¶ 20.) On August 6, 2008 she received a response from Janet Connery, the head of the Labor Department, informing her that the Labor Department had determined that Crique's remark was not discriminatory and not intended to be offensive, and advising her that none of the other complainants had indicated that they had experienced any retaliation for raising their complaints (Connery Decl. ¶ 6).

3. Alleged Adverse Employment Action

a. Move from Private Office to Open Cubicle

At about the same time as Lorenzo's complaint to the Hospital's president, a new hire, Juan Montalvo, started work at the Department. There was insufficient space in the office to accommodate the new hire, and it was decided that Lorenzo would be asked to share her office. (Orbe Decl. ¶¶ 23-25, 35; see Buhager Decl. ¶ 20.) Orbe asked Lorenzo's co-workers Elaine Wu, Veronika Borovik, and Sabina Sujkovic to share with Lorenzo, but they declined. (Id. ¶ 26.) Therefore, Orbe assigned Montalvo to share Lorenzo's office. (Orbe Decl. ¶ 28.) Allegedly objecting to sharing her office with a male (Orbe Decl. ¶ 30), Lorenzo requested to share with one of her female co-workers; she was then told that she would either have to share an office with Montalvo or move to a cubicle at the front of the office. (Id. ¶ 31.) Lorenzo chose the latter option (id. ¶ 32; Buhager Decl. ¶ 20; see Orbe Decl. Exh. 5), and Sujkovic was moved to share Lorenzo's former office with Montalvo (Orbe Decl. ¶ 33).

Lorenzo protested the decision to move her to an open cubicle in a public area of the Department, and met with Buhager to complain. (Lorenzo Aff. ¶ 21.) She then met with Dr. Oded Langer, the Chairman of the Department, and inquired as to why she was being required to move out of her office and not being permitted to share with one of her female assistants. Langer allegedly "chastised [her] for writing to the President Cracolici [sic] and alluded to [the June 12, 2008] letter as the reason that [she] was being removed from [her] office." (Id.)

b. Alteration and Diminution of Job Responsibilities

Lorenzo's job responsibilities began to change after her move to the front of the office. She was required to assist the secretaries, including answering the phone when no secretary was available, and was required to coordinate her lunch and vacation schedule with the secretaries so that there would be office coverage at all times. (Lorenzo Aff. ¶ 23.) Prior to her move she was not required to coordinate her schedule with the secretaries, and she was only required to answer phones on an emergency basis. (Lorenzo Dep. at 212; see id. at 217.)

After her move Lorenzo was also forbidden from moving her filing cabinets containing her accounting records to her new location. (Lorenzo Aff. ¶ 22.) Orbe and Buhager denied her request to move the cabinets, telling her that there was sufficient room for her files at her new cubicle and that there was no suitable location at the new cubicle for her filing cabinets. (Orbe Decl. ¶ 36; see Orbe Decl. Exh. 6.) When she attempted to move her cabinets anyway, she was made to return them to her old office. (Lorenzo Dep. at 108.) Without her filing cabinets, Lorenzo's accounting job was made more logistically difficult.

During the same period of time, Orbe and/or Buhager stopped assigning to Lorenzo various accounting and bookkeeping tasks that she had previously been asked to perform. Among the tasks that were stripped from her were such functions as reconciling departmental accounts, preparing monthly faculty practice plan reports and spreadsheets for the assistant vice-president of faculty practice, and ordering medical equipment. (Lorenzo Dep. at 124:17-127:17; see Lorenzo Aff. ¶ 25, P. 56.1 ¶ 118.) Buhager also requested that she switch from Excel spreadsheets to Quickbooks to perform her accounting tasks. (Buhager Decl. ¶ 22.) For a period of time after the switch, technical problems with the new computer program prevented her from completing her assignments in a timely manner (Lorenzo Dep. at 57-58; see Lorenzo Aff. ¶ 16); a notation appeared in her annual review that she had problems with timely completing work (see Orbe Decl. Exh. 7). Finally, she was excluded from the departmental meetings that she had previously attended in her capacity as Accounts Supervisor. (Lorenzo Aff. ¶ 16.) Although she "continued to perform substantive accounting functions as her main job" (P. 56.1 ¶ 101), and "[n]o one else in the OB/GYN Administrative Department performs these functions" (Id. ¶ 100), by the time of her deposition on June 10, 2010, she was "relegated to data entry and answering the telephone" (P. 56.1 ¶ 129-2 (citing Lorenzo Dep. at 213)).

c. Annual Review and Merit-Based Pay

In July of 2008, Lorenzo received her annual review from Orbe. Orbe rated Lorenzo as "meets expectations" in her tasks, but noted that she did not complete accounting and bookkeeping tasks in time, had "numerous occurrences requiring her absence from work," and needed to "improve her communication with the administrative management team, in particular," Orbe himself. (Orbe Decl. Exh. 7.) In some but not all performance categories, her score of "meets expectations" was a diminution from the "exceeds expectations" scores she had received between 2002 and 2006. (Orbe Decl. ¶ 51; see Orbe Decl. Exh. 8-12.)

In August of 2008, the Department went through the process of assigning merit-based pay increases. Hospital administrators were asked to apportion merit-based increases according to a rubric known as the "Merit Increase Guidelines" (the "Guidelines") developed by the Hospital's Human Resources Department.*fn4 (Orbe Decl. ¶ 16.) Orbe and Buhager did not grant Lorenzo a merit-based pay increase under the new rubric. (Lorenzo Aff. ¶ 23.) Orbe's and Buhager's rationale for denying the increase echoed Lorenzo's negative performance evaluation from the previous month: they cited her numerous absences from work, her communication problems with the administration, and her trouble meeting work deadlines. (Orbe Decl. ¶ 17.) Prior to the 2008 merit increase denial, she had consistently received merit increases. (Lorenzo Aff. ¶ 24.)

B. Irene Rivera

1. Work History and Job Description

Irene Rivera, now 63 years old, began working for the Hospital in 1979. (Rivera Aff. ¶ 3.) She left the Hospital's employ in 1985, but returned a year later. (Id. ¶¶ 4-5.) Like Lorenzo, Rivera worked her way up through the ranks at the Hospital. (Id. ¶¶ 5-9.) In 2003 Rivera was promoted to the position of Medical Staff Coordinator in the administration section of the OB/GYN Department, under the supervision of Orbe and Buhager.*fn5 (See id. ¶ 9.) Although Rivera did not directly report to Crique, Crique was responsible for supervising the Department's billing operations, and therefore Rivera and Crique had a "dotted line" reporting relationship as well. (Crique Decl. ¶ 7.) Although the nature of Rivera's work has changed since the beginning of 2008, the year in which she alleges the discrimination occurred, she has not received either a diminution of salary or a demotion of title. (Orbe Decl. ¶ 14.)

2. Performance Issues

a. Rivera's Credentialing Work

As Medical Staff Coordinator, Rivera was responsible for coordinating the credentialing of the Department's clinical staff by the Hospital's insurance providers and by the Hospital itself. (Rivera Aff. ¶ 9.) Rivera's job responsibilities included gathering the necessary credentialing information from physicians and midwives and forwarding the information to either the Hospital's Medical Staff Office, for the Hospital's internal credentialing process (done prior to the professional's start date), or insurance companies' managed care departments (done after the professional began work). (See Babic Decl. ¶¶ 4-5.) When necessary, Rivera was also responsible for following up with the professionals, the Hospital, or the insurance companies to ensure that the credentialing was timely completed. (See Orbe Decl. ¶ 6.)

In March of 2008, Rivera met with Crique about her credentialing work. Crique informed Rivera that the managed care credentialing (i.e., the credentialing process that occurred after a physician or midwife began work at the Hospital) was taking too long. Crique told Rivera that she needed to be more proactive in contacting physicians and obtaining information necessary to expedite the credentialing process. (Crique Decl. ¶ 8; see Rivera Aff. ¶ 26.)

In April or May of 2008, Crique repeated her concerns about Rivera's performance in a meeting with Orbe and Buhager. She informed them that Rivera continued to have problems being proactive with her credentialing work, and that as a result the credentialing work was not being timely completed. (Crique Decl. ¶ 9.) When Orbe spoke to Rivera about these problems, suggesting that Rivera should proactively obtain medical documentation from doctors, Rivera responded "I'm not going to chase them around." (Orbe Decl. ¶ 6.) Rivera's May 12, 2008 performance evaluation documented her trouble with timely completing her credentialing responsibilities (Orbe Decl. ¶ 10; Orbe Decl. Exh. 2), echoing a 2006 performance evaluation that documented similar timeliness concerns. (See Orbe Decl. ¶ 8; Orbe Decl. Exh. 1.)

In April of 2008, a midwife began work in the Department without having been properly credentialed. When Orbe was informed of the oversight, he challenged Rivera, blaming her for not following proper procedure in credentialing the midwife. (Orbe Decl. ΒΆ 6.) He also made a note of the ...

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