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Susan Augustus v. Ahrc Nassau

December 11, 2012


The opinion of the court was delivered by: Margo K. Brodie, United States District Judge:


Plaintiff Susan Augustus brings the above-captioned pro se action against Defendant AHRC Nassau, her former employer, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). Plaintiff was terminated by Defendant after a series of alleged disciplinary violations. Plaintiff, who is African-American, claims that Defendant held her to a stricter standard than similarly situated Caucasian co-workers, and that Defendant used her alleged violations as a pretext for race discrimination. Plaintiff also claims she was disciplined and ultimately terminated in retaliation for her advocacy on behalf of a pregnant client's FMLA rights. Defendant moved for summary judgment. The Court heard argument on May 3, 2012. For the reasons set forth below, Defendant's motion for summary judgment is denied.


a. Plaintiff's Employment

The following facts are taken from the parties' affidavits, memoranda, exhibits, and Local Rule 56.1 statements. The Court considers the facts in the light most favorable to Plaintiff, who is the non-moving party. Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).

Defendant is an organization that serves adults with developmental disabilities. (Pl.'s Affirm. Opp'n Def.'s Summ. J. Mot. ("Pl.'s. Affirm.") 2; Tr. 32.) Plaintiff began working for Defendant in January 2008 as an Employment Training Specialist ("ETS"). (Compl. ¶ 8; Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 1.) The duties of an ETS include helping clients secure employment and providing related support services. (Pl.'s Rule 56.1 Statement ("Pl.'s 56.1") ¶ 2; Def.'s 56.1 ¶ 2.) Of the 13 people employed as ETSs during the time Plaintiff worked for Defendant, three, including Plaintiff, were African-American. (Cohen Aff. Attach., Susan Augustus Dep. ("Augustus Dep.") 38:8--11; Def.'s 56.1 ¶ 3.)

Plaintiff received a positive performance evaluation after her first four months as an ETS and again after her first year. (Pl.'s 56.1 ¶¶ 4, 7; Linder Aff. Ex. B, D.) Plaintiff was also given two "You Make the Difference" awards in June 2009: the first for her "willingness to help when needed" and the second in recognition for going "above and beyond her employment responsibilities" to help a client. (Pl.'s Ex. 47.) The second award noted that Plaintiff "set a wonderful example of what matters the most." (Id.)

Plaintiff also received a series of reprimands between September 2008 and November 2009. (Compl. ¶ 8.) Defendant issued two types of written reprimands: "counseling memorandums," which were considered first warnings, and "written supervisions," which were given when a violation was repeated or more serious. (Pl.'s Affirm. Opp'n Def.'s Mem. ("Pl.'s Mem.") 2.) Supervisors had discretion to decide whether and which reprimands were appropriate in any given situation. (Tr. 5:4--7, 10:17--18.) On September 22, 2008, Plaintiff received a counseling memorandum instructing her to be more diligent in providing details of her daily schedule on her Outlook calendar. (Augustus Dep. 56:11--58:13; Linder Aff. Ex. C.)

Sometime in January 2009, Plaintiff asked her supervisors to help ensure that a pregnant client, referred to as A.M., be retained long enough to qualify for FMLA leave.*fn1 (Augustus Dep. 66:7--68:17.) Plaintiff's supervisor was dismissive of her efforts to help A.M. and remarked that "[A.M.] won't come back." (Augustus Dep. 66:23--68:22.)

Less than a month after Plaintiff's first appeal on A.M.'s behalf, Plaintiff received two written supervisions. (Pl.'s Affirm. 3--4.) On January 26, 2009, Plaintiff had a medical appointment that ran late, causing her to be two hours late for work. (Augustus Dep. 69:21-- 70:4.) Plaintiff was unable to call a supervisor to say she was delayed because her doctor's office did not permit patients to use cell phones. (Id.)Once she arrived at work, Plaintiff offered to make up the two hours by staying late, but her supervisor rebuffed Plaintiff's offer. (Pl.'s Ex.

6.) Plaintiff was issued a written supervision because her "work time was unaccounted for a time span of 2 hours." (Pl.'s Ex. 8.) The written supervision also mentioned Plaintiff's September 22, 2008 counseling memorandum and summarized the scheduling issues that had been noted in that earlier reprimand. (Id.)

Three days later, Plaintiff hurt her back while shoveling snow in front of her home. (Augustus Dep. 79:21--23.) Plaintiff tried three times to call a supervisor to report that she was unable to come to work, but each time, Plaintiff left a voicemail message because her supervisor did not answer the phone. (Augustus Dep. 79:11--80:24; Pl.'s Mem. 6; Def.'s 56.1 ¶ 10.) Plaintiff was issued a second written supervision for taking an "unauthorized absence," because she failed "to physically speak with her supervisor." (Pl.'s. Ex. 21; Def.'s 56.1 ¶ 10.)

In April 2009, Plaintiff applied for the position of Job Developer but was told that she was ineligible for consideration because of her written supervisions. (Compl. ¶ 8; Def.'s 56.1 ¶ 22; Maynard Aff. ¶ 3.) Plaintiff was told that staff who had received written supervisions within the prior year could not be considered for internal vacancies.*fn2 (Def.'s 56.1 ¶ 22; Pl.'s 56.1 ¶ 22.)

On June 15, 2009, Plaintiff received a counseling memorandum because she did not properly document her services to a client within 24 hours. (Def.'s 56.1 ¶ 11; Pl.'s Ex. 28.) Plaintiff received a third written supervision on August 7, 2009 because she did not timely document client services a second time. (Pl.'s Ex. 30.)

According to Defendant's "Internal Application Policy & Criteria," an employee with three or more written supervisions cannot be considered for internal vacancies, regardless of when the written supervisions were issued. (Maynard Aff. Ex. 2.) Therefore, the effect of Plaintiff's August 7, 2009 written supervision was that she would never be eligible for any transfer or promotion. (Id.)

When A.M. was ready to return to work in September 2009, Plaintiff sought to help her secure a position with similar hours and compensation to the position she held before her pregnancy leave. (Augustus Dep. 66:7--68:17; Def.'s 56.1 ¶ 26.) Plaintiff emailed her immediate supervisor for assistance, and after receiving no response, Plaintiff sent an email to several managers and senior administrators asking for their help. (Pl.'s Exs. 35, 37.) Plaintiff was orally reprimanded by her supervisor for communicating directly with senior management and instructed to refrain from doing so in the future. (Pl.'s Ex. 36.) One of Plaintiff's supervisors suggested she "take a step back," and another told her, "[l]et's advocate for [A.M.'s supervisor] this time." (Compl. ¶ 8; Pl.'s Affirm. 14; Pl.'s Ex. 33.)

On the afternoon of November 3, 2009, Plaintiff conducted a client field visit. (Augustus Dep. 115:7--23.) When Plaintiff returned to her car sometime after 4:00 p.m., she determined that her supervisor had left a voicemail on her personal cell phone. (Augustus Dep. 115:14--22.) Plaintiff did not immediately return the call, because it was after 4:00 p.m., the matter was "not pressing," and she knew she would be seeing her supervisor the next day. (Augustus Dep. 118:2--6; 120:12--13.) Defendant expected Plaintiff to carry her personal cell phone with her at all times so that her supervisors could reach her. (Pl.'s 56.1 ¶13A; Def.'s 56.1 ¶ 13.) However, Defendant did not supply Plaintiff with a cell phone, nor provide compensation for work calls made on Plaintiff's personal phone. (Tr. 68:10--70:12.)

On November 4, 2009, Defendant was 15 minutes late for a field visit with a client. (Augustus Dep. 121:15--122:6.) The next day, Plaintiff was terminated without explanation. (Pl.'s 56.1 ¶ 21A; Pl.'s Ex. 39.)

b. Comparative Disciplinary Evidence for Other ETSs

Plaintiff claims that her Caucasian co-workers were not required to account for their time as strictly as she was. (Augustus Dep. 73:12--18, 74:4--78:2). The Outlook calendars of several Caucasian ETSs show multiple gaps, including those of John Gregory, (Pl.'s Ex. 22; Augustus Dep. 99:23--100:22), Shannon Morrison, (Pl.'s Ex. 26), and Blake Worster (Pl.'s Ex. 25).

The record contains additional evidence concerning the disciplinary histories of three other ETSs, all of whom were Caucasian: Frank ...

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