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Denyse Lewis v. Erie County Medical Center Corp

October 24, 2012


The opinion of the court was delivered by: John T. Curtin United States District Judge


Plaintiff commenced this action on November 30, 2009 pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y.Exec. Law § 296 et seq. She alleges that the defendant intentionally discriminated, harassed, and retaliated against her on the basis of her disability and race. Additionally, plaintiff alleges that defendant refused to provide reasonable accommodations and made impermissible medical inquiries in violation of the ADA and NYSHRL. This matter is before the court on the defendant's motion for summary judgment (Item 34).


As stated above, plaintiff commenced this action with the filing of a complaint on November 30, 2009 (Item 1). Plaintiff is an HIV-positive, African-American woman employed as a social worker at defendant Erie County Medical Center ("ECMC"). She alleged that she began to experience discrimination in 2002 at the hands of her supervisor, Kathleen Walsh. Specifically, plaintiff complained that Ms. Walsh "belittled, screamed at, chastised, and otherwise treated her differently than non-disabled and Caucasian employees." (Item 1, ¶ 35). Additionally, plaintiff complained that the defendant denied reasonable requests for schedule changes to accommodate her medical appointments and to allow her to participate in an internship as part of her post-graduate studies. Id., ¶¶ 36-37. Plaintiff alleged that she was forced to attend meetings during her lunch break while similarly-situated non-disabled and Caucasian employees were not required to do so. Id.,

¶ 39. She also alleged that Ms. Walsh improperly reviewed plaintiff's medical file and closed her medical case at ECMC. Id., ¶ 44. Plaintiff asserted 16 separate causes of action - disability discrimination under the ADA and the NYSHRL, failure to provide reasonable accommodations under the ADA and the NYSHRL, impermissible medical inquiry under the ADA and the NYSHRL, race discrimination under Title VII and the NYSHRL, retaliation under Title VII, the ADA, and the NYSHRL, and hostile work environment under the ADA, the NYSHRL, and Title VII.

Defendant filed its answer to the complaint on January 29, 2010 (Item 7). Following the completion of discovery, the defendant filed this motion on June 26, 2012 (Item 34). It argues that plaintiff cannot establish a prima facie case of discrimination under either Title VII, the ADA, or the NYSHRL because she has admitted that the supervisor, Ms. Walsh, treated employees of all races poorly. Additionally, defendant argues that plaintiff has not shown that she suffered an adverse employment action or that she was retaliated against in response to protected activity. Finally, defendant argues that plaintiff has failed to show that defendant undertook any impermissible medical inquiry or failed to provide reasonable accommodations.

Plaintiff filed a memorandum in opposition to the motion on August 22, 2012 (item 35), and defendant filed a reply memorandum on September 11, 2012 (Item 36). The court has determined that oral argument is unnecessary. For the reasons that follow, the defendants' motion for summary judgment is granted.


Plaintiff commenced her employment at ECMC in October 1997 and is currently employed as a drug counselor in the Immunodeficiency Clinic (Item 34, Appendix, Exh. C, "Lewis Dep.," pp. 42, 65). She was open about her HIV status with her co-workers as she received care herself at ECMC. Id., pp. 55-56. Ms. Walsh became plaintiff's supervisor approximately three to six months after she was hired. Id., p. 60.

In October 2002, plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR"). She complained that her Team Leader/Supervisor, Fred Marschner, issued her an unwarranted counseling letter and harassed her by commenting on her HIV status and assigning her more work than other employees (Item 34, Appendix, Exh. K). A conciliation agreement was reached whereby plaintiff withdrew her charge and ECMC agreed to abide by all anti-discriminations laws, to adhere to its Harassment Policy and the collective bargaining agreement, and not to retaliate against the plaintiff (Item 34, Appendix, Exh. L).

Plaintiff acknowledged that many other employees in the Immunodeficiency Clinic complained about Ms. Walsh's inappropriate behavior as a supervisor (Lewis Dep., p. 43, 44-45, 51). Plaintiff complained that she was reprimanded by Ms. Walsh, forced to attend meetings during her lunch break, given additional work tasks as punishment, criticized in the presence of co-workers, and given negative performance reviews (Lewis Dep., pp. 59, 87). However, plaintiff stated that she was never denied a right at work because she "always reached out for the protection that I supposedly had." Id., p. 97.

Plaintiff asked that she be allowed to change her work schedule for medical appointments and to complete an internship (Lewis Dep., pp. 81-83). Ms. Walsh denied a request for leave for a medical appointment, but plaintiff complained to her union and the leave was granted. Id., p. 90. Plaintiff stated that she was never denied the right to attend a medical appointment. Id., p. 97. On another occasion, plaintiff presented a note from her medical provider, a physician's assistant ("PA") from a practice in Rochester, New York, which Ms. Walsh would not accept. Plaintiff complained to her union and to the Human Resources Department and the situation was rectified. Id., pp. 90-92. After plaintiff gave Ms. Walsh the note from the Rochester medical office, Ms. Walsh closed plaintiff's medical file at ECMC (Lewis Dep., p. 100). Plaintiff admitted that she closed the files of other patients when they left ECMC and acknowledged that it was not burdensome to reopen a file if the patient returned. Id. Plaintiff stated that she never asked that her file be reopened and continued to receive care in other departments at ECMC. Id., pp. 101-02. With regard to plaintiff's internship, e-mail correspondence between plaintiff and Katrina Karas Buchholtz, Director of Ambulatory Services at ECMC, indicate that plaintiff's internship supervisor adjusted his schedule so as to accommodate plaintiff's work schedule (Item 34, Appendix, Exh. W).

Plaintiff complained that Ms. Walsh referred to her as a "voodoo worker" in the presence of a large group of people at a luncheon meeting (Lewis Dep., pp. 66-67). She also complained that Ms. Walsh suggested that she take a disability leave at times when plaintiff had taken time off for medical reasons. Id., p. 106.

Plaintiff stated that there were times that she took off of work without pay, but the amount of lost wages she is seeking is "insignificant" (Lewis Dep., p. 114). She is also seeking compensation for lost lunch hours when she was compelled to attend weekly luncheon meetings prior to grieving the issue in approximately 2006. Id., pp. 115-16. Plaintiff complained that, on one occasion, Ms. Walsh "chased" her down the hall to reprimand her. She was fearful and nervous about working with Ms. Walsh and was frightened that Ms. Walsh would harm someone in the department. Id., pp. 118 - 120.

In June 2007, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (Item 34, Appendix, Exh. S). She listed the following examples of harassment by her supervisor: denial of requests for accommodations, "at least one negative religious based comment and racial slur," improper review and comment on personal medical records, and written discipline for legitimate absences. Id. The EEOC was unable to conclude that plaintiff had established a violation of federal law and issued a "right to sue" letter (Item 34, Appendix, Exh. AA).

Kathleen Walsh testified that she mentioned voodoo during a conversation at a luncheon meeting in the context of AIDS treatments in third world countries and island cultures, but denied that she made any comment to plaintiff (Item 34, Appendix, Exh. V, "Walsh Dep.," p. 36). Walsh also denied that she "chased" plaintiff through the clinic as plaintiff had reported. Id., p. 42. Ms. Walsh explained that on Friday afternoons, the clinic conducted staff meetings with speakers and educational updates during the lunch hour. At some point, plaintiff complained to her union about giving up her lunch hour. A compromise was reached whereby plaintiff was allowed to go to lunch from 11:00 a.m. until noon so that she could attend the meeting. It became a long-standing practice for plaintiff to take her lunch at 11:00 a.m. on Fridays. Id., pp. 43-44.

Plaintiff's performance evaluations reflect her clinical competency but show a history of interpersonal problems with her co-workers and supervisors. In 2001, her supervisor Linda Macaluso stated that plaintiff "has difficulty with personalizing and expressing anger" (Item 34, Appendix, Exh D). In 2003, her supervisor Fred Marschner noted that plaintiff did not meet the standards for maintaining positive interpersonal relations and stated that plaintiff "continues to need to work towards becoming a team player." Id., Exh. E. In 2004, Ms. Walsh stated that plaintiff "continues to have difficulty working with other team members which has resulted in tension, divisiveness, and unproductive teamwork." Id.,

Exh. F. In 2007, Ms. Walsh noted the "long standing issue" of plaintiff's difficulty in getting along with others. Id., Exh. H. Plaintiff testified that her supervisors generally acknowledged her good performance as a social worker, but she didn't "agree with unlicensed people diagnosing my personality" (Lewis Dep., p. 63).

Carla DiCanio Clarke, an employment law specialist in the Human Resources Department of ECMC, submitted an affidavit in which she set forth the history of plaintiff's internal complaints of discrimination and ECMC's investigation of those complaints (Item 34, Att. 4, "Clarke Aff.") In early 2007, Ms. Clarke conducted interviews of the plaintiff and Ms. Walsh, as well as 15 other current and former employees of the Immunodeficiency Clinic, and reviewed the results of two earlier investigations of internal complaints filed by plaintiff in 2002 and 2006. Ms. Clarke concluded that there had been no violation of the ECMC Harassment Policy and that the disputes between plaintiff and Ms. Walsh were the result of a personality conflict (Clarke Aff., ¶ 8). Ms. Clarke also concluded that Ms. Walsh was a "poor manager, with poor interpersonal communication skills." Id., ¶ 11. As Ms. Walsh's position was ...

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