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Linda Antonia Baez v. Visiting Nurse Service of New York Family Care Service

November 21, 2011

LINDA ANTONIA BAEZ, PLAINTIFF,
v.
VISITING NURSE SERVICE OF NEW YORK FAMILY CARE SERVICE, DEFENDANT.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Plaintiff Linda Baez brings this action against defendant Family Care Service, alleging race and gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New York State Human Rights Law, N.Y. Exec. Law § 296, as well as asserting retaliation claims deriving from Title VII, New York State law, and unspecified "whistleblower" provisions. Presently before us is defendant's motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

For the reasons stated herein, defendant's motion is granted.

BACKGROUND*fn1

Defendant, a subsidiary of Visiting Nurse Service of New York, provides home-attendant and housekeeping services pursuant to a contract with the New York City Human Resources Administration. Plaintiff was employed by defendant as a receptionist for the entirety of the period relevant to the complaint, until her termination on November 3, 2009.

In or around October and November of 2007, plaintiff complained to various members of defendant's management about an unauthorized deduction from her pay. By December 21, 2007, the issue regarding the deduction had been resolved. At the same time plaintiff was dealing with the unauthorized deductions, she also complained to management about the attitude and time-recording procedures of a co-worker, Maria Semidey.

After making her grievances known, plaintiff experienced conflict from a number of sources, of which the most significant were: (1) plaintiff's manager Eva Burns began paying closer attention to plaintiff's attendance and time-sheet entries; (2) plaintiff was not directly provided with a copy of an internal memorandum; (3) Semidey threw an envelope at plaintiff and laughed, referring to it as "airmail"; (4) Semidey hurried plaintiff while she was on a phone call; (5) Burns told plaintiff on at least one occasion that she was going to "smack" her; (6) at a ceremony recognizing employees' tenure working for defendant, plaintiff's title was announced incorrectly; (7) defendant's telephone system and attendant protocol changed without providing plaintiff advance notice; (8) plaintiff's coat and radio were damaged at work by an unidentified person or persons; and (9) plaintiff's keys went missing while at work.

Plaintiff made complaints about several of the above incidents to Burns and other members of management, but they took no corrective action. At a meeting Burns convened to discuss the interpersonal problems between plaintiff and Semidey, Semidey responded to plaintiff's complaint by asking plaintiff, "[W]hy don't you be a woman[?]" and telling Burns to fire plaintiff. Burns noted that she would need to reassign the two employees if they could not get along.

Plaintiff filed a complaint ("Charge I") with the New York State Division of Human Rights (the "NYSDHR") and the Equal Employment Opportunity Commission (the "EEOC") on August 25, 2008, alleging discrimination "[d]ue to my complaint to compliance officers." (Affirmation of Rebecca G. Fischer ("Fischer Aff."), Ex. 1 at 7.) The complaint referred generally to "verbal abuse" from Semidey and Burns but otherwise did not mention any of the above events. (Id. at 8.) The NYSDHR dismissed Charge I on February 10, 2009 for lack of evidence to support the allegations and the absence of any adverse event, (id., Ex. 6 at 2-3), and the EEOC adopted the NYSDHR's findings on October 5, 2009. (Id., Ex. 7.)

Plaintiff's conflicts at work, and elsewhere, continued after she filed Charge I. Most notably: (1) plaintiff was occasionally unable to take breaks because her co-workers refused to cover for her, and they otherwise limited their association with her; (2) plaintiff found a "bloody or painted" doll on her home doormat; (3) plaintiff's work would occasionally go missing so she had to do it again, and co-workers would sometimes give plaintiff misinformation; (4) plaintiff was approached outside of work by two individuals not known to her; (5) the security cameras were reoriented so that plaintiff had a different view of visitors than previously, and the security door was left unlocked on occasion; (6) the air conditioner near where plaintiff sat at work was installed backwards; (7) plaintiff's chair smelled of urine on two occasions; and (8) a co-worker showed plaintiff an e-mail forward containing pictures of a mausoleum. Additionally, plaintiff and Semidey had further work-related disagreements, and a management representative characterized plaintiff's complaints as "all petty" at a meeting convened to address their recurring interpersonal problems. Plaintiff and Semidey were offered the chance to move to different positions so they would not need to work together, but it appears that neither accepted the opportunity.

Plaintiff filed another complaint ("Charge II") with the NYSDHR and the EEOC on October 14, 2008, alleging that she had faced continued discrimination as a result of having filed Charge I. That complaint listed several of the above events, though not all of them. (Fischer Aff., Ex. 2 at 1-2.) The NYSDHR dismissed Charge II on November 3, 2009 for lack of evidence of retaliatory discrimination, (id., Ex. 8 at 2-3), and the EEOC adopted the NYSDHR's findings on April 26, 2010. (Id., Ex. 9.)

After Charge II was filed on October 22, 2008, Semidey paced near plaintiff in an upsetting manner, and plaintiff subsequently noticed large kitchen knives in a dish rack in the lunch room, which caused her significant distress. Plaintiff thereafter requested a leave of absence, which defendant granted, from October 28, 2008 until January 15, 2009. Although plaintiff continued to be stressed by her work environment and treated unsatisfactorily after she returned from her leave, no specific events are alleged between January and October 2009. In October 2009, however, plaintiff received a written warning that she would be terminated if she continued to take unplanned absences from work. Thereafter, Burns began redoing or otherwise changing plaintiff's time sheets, though it is unclear if plaintiff alleges that they were actually being falsified.

On November 3, 2009, plaintiff was informed that she was being terminated due to her continued truancy.*fn2 Plaintiff then filed another complaint ("Charge III") with the NYSDHR and the EEOC on November 9, 2009, alleging that her termination was retaliation for filing Charges I and II. The NYSDHR dismissed the complaint on September 1, 2011 for lack of a causal connection between the ...


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