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Elionida Tolleson v. Unity Health System

May 14, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. Now before the Court is Defendant's motion for summary judgment (Docket No. [#20]). The application is granted.


Unless otherwise noted, the following are the facts of this case viewed in the light most favorable to Plaintiff. Defendant is a corporation which operates hospitals in Rochester, New York. Plaintiff is a native of the Philippines, for whom English is her second language. Plaintiff moved to the U.S. in 2004. On October 22, 2007, Defendant hired Plaintiff for the position of "Food Service Assistant." At the time, Plaintiff was four months pregnant.

The position of "Food Service Assistant" involved working both in the hospital kitchen, preparing meal trays for hospital patients, and in the hospital cafeteria, preparing meals for customers. The written job description for the position states, in pertinent part:

[E]mployee must consistently:

Assembles and retrieves meals as required while maintaining good customer relations.

Assembles resident [patient] trays and nourishment according to menu requirements, diet specifications and requests while utilizing proper food handling practices in a timely, organized manner.

Pl. Resp. to Stmt. of Facts [#27-3] at ¶ 16. The process for assembling patient trays used an assembly line with four stations, each staffed by a single employee. Id. at ¶ 20. Each tray contained an "order ticket," which specified what food was to be placed on the tray. Id. at ¶ 22. While assembling trays, Plaintiff was required to consult the order ticket and place the appropriate food items on each tray. Plaintiff was also required to perform cleaning tasks and deliver meal trays to locations throughout the hospital using a large metal cart. Id. at ¶ 18.

Pursuant to Defendant's usual practice, Plaintiff received three weeks of training on the tray assembly line, which consisted of her working with a more experienced employee. Plaintiff was only able to advance through the first of the four stations of the tray assembly process. Moreover, at the end of the training period, Plaintiff was unable to consistently place the correct food items on patient trays in a timely manner. On November 21, 2007, Plaintiff's supervisor, Lynn Orlando, gave her a verbal warning about her job performance. Orlando prepared a written report concerning the verbal warning, which Plaintiff signed, and which states:

Since her start date of 10/22/07 Nida has not shown the ability to complete her work in the allotted time periods. Nida often relies on her co-workers to help complete her job duties. She has not been able to perform on the patient trayline at the lunch meal without much assistance. Nida moves very slowly when working in the dishroom and also when passing trays on the floors.

Prescribed Corrective Action: Nida needs to complete her job duties quicker without relying on her co-workers to pick up the slack.

Pl. Appendix of Exhibits, Ex. E. Plaintiff does not allege that this verbal warning was discriminatory. See, Pl. Deposition at p. 86.

Approximately one week after receiving this verbal warning, Plaintiff produced a doctor's note, indicating that because of her pregnancy, she was not able to lift, push or pull more than twenty pounds. Such restriction affected Plaintiff's ability to deliver trays to patients, but not her ability to work on the tray assembly line. Defendant maintains that because of this restriction, it did not require Plaintiff to move the tray delivery carts, which weighed more than twenty pounds. Plaintiff, though, contends that one of her supervisors still told her to deliver trays. However, it is unclear whether that supervisor was aware of Plaintiff's restriction, and in any event, Plaintiff's immediate supervisor, Orlando, reiterated that Plaintiff should not push the carts.

Plaintiff nevertheless complains that when she initially presented her doctor's note, Orlando responded that if she had known Plaintiff was pregnant, she would not have hired her. See, Pl. Dep. at p. 44 (According to Plaintiff, Orlando stated, in sum or substance, "So if I know you were pregnant, you see, you cannot get this job because this job is hard shifts, it's fast, hurry, hurry, hurry, she told me like that."). However, Orlando denies making such a comment.

In the meantime, Plaintiff continued to work on the patient tray assembly line. On or about December 5, 2007, Orlando specifically observed Plaintiff while she worked assembling patient trays. According to Orlando, she witnessed Plaintiff make numerous errors assembling the tray orders. For example, Orlando states that several times Plaintiff failed to differentiate between butterscotch pudding and butterscotch cookies, which caused her to place the wrong items on trays, and in one case, resulted in her placing a cookie on a tray for patient who was supposed to receive only pudding, because the patient could not have solid food. Orlando also indicates that Plaintiff placed a turkey sandwich on a tray that required a ham sandwich. Furthermore, Orlando states that Plaintiff mistakenly placed ice cream on trays for patients on a clear-liquid restricted diet, rather than "'water ice,' which is similar to italian ice," and vice versa. Pl. Resp. to Stmt. of Facts at ¶ 35. Orlando also reportedly observed that Plaintiff could not differentiate between 'nectar liquids' and 'honey-thickened liquids,' the two different types of thickened liquids provided to patients with swallowing difficulties. This inability was dangerous because if a patient did not receive a beverage with the correct degree of thickness the liquid could go into their lungs and be life threatening.

Id. at ¶ 36. According to Orlando, Plaintiff's numerous errors caused her to ask Plaintiff whether she could read English, and Plaintiff responded that she could, but that she did not recognize the various foods because she did not eat those types of food. Id. at ¶ 37. Plaintiff counters that she only made one mistake while Orlando was observing her, which was to place a diet pudding on a tray that required a regular pudding. However, as will be discussed further below, Plaintiff is not in a position to dispute Orlando's observations, since she admittedly has great difficulty in recognizing the various foods that were used in Defendant's kitchen, and therefore would not necessarily know when she made a mistake, unless she was told. See, Pl. Affidavit at ¶ 22. Accordingly, at most Plaintiff can say that Orlando only told her about a single mistake that she had made. Similarly, although Plaintiff complains that no one told her that her mistakes posed a risk to patient health, she does not dispute that such mistakes could in fact endanger patient's safety.

Overall, Plaintiff admits that she consistently made mistakes on the tray line, because of her upbringing in the Philippines and her unfamiliarity with common American foods. For example, Plaintiff admits that the following statement is undisputed:

Rather than provide Ms. Tolleson with a written warning, Unity continued to work with her until the end of her employment in an effort to improve her performance in the kitchen. Unfortunately, Ms. Tolleson's performance in the tray line did not improve and she continued to make errors with respect to identifying and differentiating between different types of food. RESPONSE: UNDISPUTED.

Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 55. Plaintiff's admission on this point is further punctuated by her contention that Defendant failed to specifically train her to recognize foods. See, Pl. Affidavit at ¶ 22 ("Further, I received no training in identifying foods, which is an essential function of my job.") (emphasis in original). Such statement only confirms that she could not adequately identify the various patient foods, even after three weeks of training on the tray assembly line.

Plaintiff's deposition testimony further reveals the difficulty that she had recognizing the various patient foods and placing them on the trays in a timely manner. See, Pl. Deposition at pp. 36-41. Rather than setting forth such testimony verbatim, it is sufficient to note that Plaintiff admitted having great difficulty in recognizing the food used in Defendant's kitchen, which she attributed to the fact that she was raised in the Philippines and not the U.S. Id. at pp. 36-41, 74. For example, Plaintiff stated that she could not differentiate between different types of bread, because she ate rice instead of bread. The problem was so severe that Plaintiff sometimes skipped placing a particular type of food on the tray, rather than risk making a mistake. Id. at p. 41; see also, Pl. Resp. to Def. Stmt. of Facts [#27-3] at ¶ 95 ("UNDISPUTED"); see also, Pl. Dep. at p. 96 ("Still it is hard for me to recognize the food that's making me make mistakes."). Plaintiff admits that she made more mistakes than even a per diem student who was working in the kitchen. Id. at p. 103.

After observing Plaintiff on the tray line, Orlando sent an email to her supervisor, Ms. Hamil, expressing concern about Plaintiff's performance. Specifically, Orlando stated that despite having received weeks of training, Plaintiff was not able to work on the entire tray assembly line, and was making numerous mistakes, which raised a concern about patient safety. Id. at ¶ 39. On December 5, 2007, Hamil forwarded Orlando's email to her supervisors, Anthony Rizzo and David Karpowich, and included her own concerns about Plaintiff's performance, namely, that Plaintiff did not have the ability to perform her job. Hamil further stated that she had assigned an employee specifically to stand beside Plaintiff while she was assembling patient trays, to make sure that she did not endanger patient safety. Id. at ¶ 43. Hamil indicated that she was particularly concerned about Plaintiff's inability to diffentiate between liquids for patients with swallowing difficulties. Id. at ¶ 44. Moreover, Hamil related to Rizzo and Karpowich that Plaintiff could not perform other tasks within the department, because of her ...

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