The opinion of the court was delivered by: Johnson, Senior District Judge:
Plaintiff Marjorie Gumbs ("Gumbs" or "Plaintiff'), an African-American woman, has been employed as a security officer by Defendant South Beach Psychiatric Center ("South Beach") since 1990. South Beach is a mental health facility operated by the New York State Department of Mental Health ("OMH"). (South Beach and OMH will collectively be referred to as "Defendants.") South Beach is a treatment facility with in- and out-patient programs for individuals suffering from mental health issues. Among other duties, the South Beach staff must insure that patients do not harm themselves or abscond from the facility.
In August 2006, after 16 years of service during which she received several commendations, Gumbs was promoted from the position of Security Safety Officer I ("SSOI") to Security Safety Officer II ("SSOII"). The person who promoted Plaintiff was Chief Jonathan Mendell, who remained her supervisor upon promotion. At the time, at least 6 of 11 SSOIs and 1 out of 6 SSOIIs were African-American.
The first 12 months of the SSOII position are probationary and include a month of orientation and training, which Gumbs attended. During her probationary period as an SSOII, Plaintiff received three evaluations. The first, issued on October 16, 2006, indicated that Plaintiff's performance was "average." In the comment section of the report, Mendell wrote, inter alia, "SGT Gumbs will be scheduled to attend Incident Command, Emergency Management Training. . . . SGT Gumbs needs to develop better communication skills when dealing with supervisory situations."
Mendell also indicated that Plaintiff's reports were neither written well nor grammatically correct. The second report, dated January 15, 2007, noted that Plaintiff's performance was "adequate but barely making it." Specifically she was rated as "above average" in the categories of attendance and punctuality, but either "average," or "below average," in 14 of the 15 remaining categories and "unsatisfactory" in the category "knowledge of own field." Gumbs was informed that she may be demoted upon the next evaluation if Mendell saw no improvement in several critical areas, including, inter alia, exercising better judgment in assigning tasks to those under her supervision, and providing the proper amount of supervision. She was reinstructed in various areas of department operation and function. In Plaintiff's third evaluation, dated April 15, 2007, she received the same scores in 16 of the 17 categories. She continued to score "above average" for attendance and punctuality, and "average," "below average" or "unsatisfactory" for 15 categories, as she had at her second evaluation. However, in one category, "[g]enerally cares," her score demoted from "average" to "below average."
Among the incidents described by Defendants as negatively impacting her performance reviews was one in which Gumbs and others attended an emergency management meeting in preparation for an impending and allegedly severe storm. Specifically, protocol was established in the event the storm flooded the basement, where the main kitchen used to feed patients was located. At the time the storm hit, Plaintiff was the only SSOII on duty, and failed to follow the protocol, which led to a delay in securing the area, as the Executive Director did not learn of the flood in time to prevent extensive damage. Indeed, the extent of the flood was not revealed to management until the Executive Director unilaterally called the facility on an unrelated matter. Plaintiff agrees that she failed to follow the set protocol.
Defendants allege that during this same storm, Plaintiff exhibited a lack of judgment not only by not immediately contacting management but by directing an SSOI to leave his post where he was guarding a maintenance worker who was managing a manhole. Plaintiff denies that this incident occurred.
Mendell recommended Plaintiff be demoted back to SSOI. After Plaintiff was returned to the position of SSOI, Pedro Valentin, a Latino man, and Shatice Daniels ("Daniels"), an African-American woman, were promoted to SSOII. Complaints persisted after Plaintiff's demotion, including one from Daniels.
Plaintiff claims that on account of her race she was inadequately trained and not provided with specific ways to improve her alleged communication skills, making inevitable a subsequent negative performance evaluation. She disagrees with Mendell's finding that she lacked judgment during the flood and was insensitive to her subordinates, framing the issues as a matter of his opinion versus hers. Additionally, she alleges that Mendell singled her out, referred to her as "uppity" on several occasions, and that he tolerated others making certain comments she alleges to be race-based, such as "these people" and "you'se [sic] people." She additionally alleges that Sergeants referred to someone as a "boy," made reference to "Indians with dots on their heads," and that sometime between 1992 and 1996, a colleague named Wassef Giris told her "you people are lazy." Plaintiff also claims that, after she was demoted, Valentin harassed her by telling her "Don't make me take my belt off," told her that he believed Plaintiff's handwriting to be "too big" and said that he likes his omelets "hard."
At Plaintiff's deposition, she testified that although Mendell commended her performance in the past and made the decision to promote her, it "just seemed suspicious" that he began issuing negative performance evaluations in February 2007. She also claims that he made insufficient effort to assist her and didn't properly explain what he perceived to be her shortcomings. As to why Plaintiff believes these actions (or non-actions, as they may be) are discriminatory, she stated that she "just felt there was something definitely wrong" because Mendell's "actions, his motive, his behavior" were such that she "could not perform to his liking." Plaintiff testified that Mendell "never wanted an African-American female as a Safety Security Officer II," and both suggests that Mendell was jealous of her, and that the post-demotion complaints against her by other staff (including Shatice Daniels, her African-American replacement) might be part of a conspiracy.
Defendants move for dismissal under Federal Rule of Civil Procedure ("Rule") 4(m), for Plaintiff's failure to serve the complaint within the prescribed time period. Defendants also move for summary judgment on the merits of all of Plaitniff's claims.
Plaintiff's Failure to Serve ...