Aria Ugo LLP, Brooklyn (Ifey Ugokwe of counsel), for appellant.
Kelley Drye & Warren LLP, New York (Jean Y. Park of counsel), for respondents.
Gonzalez, P.J., Friedman, Renwick, Manzanet-Daniels, Román, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 21, 2011, which, to the extent appealed from, granted so much of defendants' motion for summary judgment as sought to dismiss the sixth cause of action (retaliatory discharge) and to dismiss the complaint in its entirety as against the individual defendants, reversed, on the law, without costs, and the motion denied.
On July 6, 2004, plaintiff, Joyce Asabor, a Nigerian-born black woman, was hired to work as a mental health nurse at the Beacon of Hope House (Beacon), a defendant, and inpatient adult mental health facility located in Staten Island. Beacon is an operating division of defendant Catholic Charities Community Services, which, along with defendant Archdiocese of New York, funds health care services at a number of facilities, including Beacon.
Defendants Joy Jasper, Beacon personnel director, and Dennis Scimone, Beacon director (sued herein as Simone), interviewed Asabor and conferred with defendant Anne Tommaso, Beacon executive director, before determining to hire her. After she was hired, plaintiff reported to defendant Ron Morgan, an assistant director of residential services at the facility.
At her deposition, plaintiff testified that from the outset of her employment, coworkers openly discussed plans to sabotage her job, especially Sharon Quattrachi, a longtime Beacon employee and Scimone's secretary. Gloria Mascara, Quattracchi's close friend, often joined in plaintiff's mistreatment. On plaintiff's second day of work, someone hung a decomposing bird on the back of her office door. Plaintiff recounted that Quattracchi smoked at the entrance to the building every morning, and that she blocked plaintiff's entrance with a folded elbow. She also stated that Quattracchi failed to give her business related messages, repeatedly called her an "African b***h, " stated that "something smells" when plaintiff walked by and directed her to "go back to the jungle." Plaintiff testified that throughout her employment at Beacon, coworkers openly declared their hatred of blacks. Defendants Morgan and Scimone were present on some of these occasions.
Within months, plaintiff complained to Scimone and Jasper about the work environment. Jasper directed plaintiff to start documenting the racist behavior, which she did. Plaintiff also noticed that staff members were stealing medication from patients and engaging in other violations of the Health Insurance Portability and Accountability Act (HIPAA). The record contains a number of citations issued by the New York State Office of Mental Health confirming that medication counts were inaccurate, that the medicine cabinet was unlocked, and that there were multiple illegible signatures on the medication administration record.
In or about August 2004, Tommaso, Jasper, and Scimone called a meeting with plaintiff at the head office of the Archdiocese, to discuss plaintiff's complaints. Plaintiff testified that she informed all of the participants at the meeting about rampant racial hostility at Beacon. She recounted the insulting language and behavior, as well as Mr. Scimone's dismissive attitude towards her verbal complaints — she testified that he would "shrug his shoulder[s] and make a face, " but did nothing to address comments made in his presence. Tomasso asked plaintiff whether she intended to contact an attorney, and plaintiff said yes — "because no one was listening to [her]." Tomasso assured plaintiff that things were going to change.
On September 7, 2004, plaintiff got into a heated argument with Quattracchi. Scimone issued plaintiff a disciplinary notice in which he recounted the incident and stated that plaintiff ignored his directive to lower her voice, and to discuss the matter with him in his office. The notice states that plaintiff's conduct was both unprofessional and insubordinate. Quattracchi received no discipline for her part in the argument.
In response, plaintiff wrote a letter to Scimone in which she apologized for any acts deemed by Scimone to be insubordinate. However, she expressed frustration that Quattracchi was not disciplined, and that Scimone was not receptive to her view of the incident. In the letter, plaintiff also faulted Scimone for failing to address her concerns regarding HIPAA violations and medicine administration.
In response to plaintiff's letter, Scimone drafted another memo to her. With respect to "racial issues, " Scimone promised to "promptly address [plaintiff's complaints] in collaboration with the agency's personnel department and other members of senior management, as necessary." Jasper subsequently came to Beacon and interviewed a number of staff members, including plaintiff. At the conclusion of the hearing, Jasper reported that Vanessa Harmon, a senior counselor at Beacon, had made racist remarks to plaintiff, and that Allen Bradley, a Beacon supervisor, was aware of Harmon's remarks and failed to take any action to stop the misconduct. Both employees were slated to be discharged; Bradley resigned in lieu of being terminated. Quattracchi and Mascara received no negative reports, though many of plaintiff's complaints concerned their behavior.
In reviews dated April 6-7, 2005, the State Office of Mental Health cited Beacon for "not consistently providing staff with cultural sensitivity training." The report noted that one employee received this type of training in 2003 and that no one was trained in 2004. In mid-May 2005, plaintiff, Quattracchi, Scimone, and Morgan met to discuss the personality conflict between Quattracchi and plaintiff. Plaintiff also testified that she had frequent conversations with Scimone and Morgan alone regarding Quattracchi's behavior. After the mid-May 2005 meeting, plaintiff wrote to Jasper, begging for her help and reiterating that the issue of Quattracchi's disdain for her had created an unbearable workplace in which she was not able to carry out her duties as an RN. No inquiry was conducted as a result of plaintiff's May 2005 letter.
Thereafter, on August 9, 2005, at about 2 p.m., a patient at the facility started hallucinating and called the police. Mascara called Kimberly Flory, Beacon's senior program supervisor, who advised her to call the patient's therapist. Plaintiff thought that she should be involved, because she was a nurse, but Mascara told her to leave the area. Plaintiff got angry, a fight began and it quickly escalated. At some point Quattracchi got involved. One or more doors were pushed into various individuals, and both plaintiff and Mascara suffered injuries. Flory had advised Mascara that plaintiff should be asked to leave the unit. Morgan eventually called plaintiff and asked her to leave the premises. Plaintiff followed his directive, but questioned the fairness of ...