The opinion of the court was delivered by: Hon. Michael A. Telesca United States District Judge
Plaintiff, Sandra Martin-Thomas ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and 42 U.S.C. § 1981, alleging race-based discrimination in the form of a hostile work environment and retaliation against, Eric Shinseki, Secretary of the Department of Veterans Affairs ("Defendant"), based on her employment at the Buffalo VA Medical Center ("Buffalo VA").*fn1 Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), contending that Plaintiff has not produced sufficient evidence of retaliation or a hostile work environment such that a reasonable jury could find in her favor. Plaintiff opposes the motion, contending that there are material issues of fact which preclude summary judgment. For the reasons discussed herein, the Court grants in part and denies in part Defendant's motion for summary judgment.
The following facts are taken from the entire record, inlcuding parties' submissions pursuant to Local Rule 56(a), and are not in dispute unless otherwise noted. (Docket Nos. 26-3, 30-1.)
Plaintiff, a black female of Caribbean descent, was first employed by the Buffalo VA in June 2001 as a floating secretary and as an Administrative Support Assistant to the Cardiothoracic Surgical at the Buffalo VA. In March 2008, Martin-Thomas transferred to the Research and Development Department of the Buffalo VA, where she worked as a secretary until her employment was terminated in September 2009.
Carlos Li, M.D. ("Dr. Li") has served as Chief of Cardiothoracic Surgical Service at the Buffalo VA fom 2000 to the present. Dr. Li was Plaintiff's supervisor between the time she was hired into the Cardiothoracic Surgical Service until she transferred to the Research Department in March 2008. During the relevant time period, the Buffalo VA's Cardiothoracic Surgical Service also employed surgeons Dr. Mark Awolesi ("Dr. Awolesi") and Dr. Hwei-Kang Hsu ("Dr. Hsu"). Miguel Rainstein, M.D. ("Dr. Rainstein") served as Chief of Surgery at the Buffalo VA beginning in 2005. In this position, Dr. Rainstein supervised the Cardiothoracic Surgical Service.
Plaintiff's Hostile Work Environment Claims
Plaintiff alleges that Dr. Li "made racially motivated and derogatory comments directed towards [herself], as well as other VA employees of African American descent, including...Dr. Awolesi." Affidavit of Sandra Martin-Thomas (hereinafter "Martin-Thomas Aff."), Docket No 30-3, at ¶4. Plaintiff claims this created an "unabated hostile environment based on race." Plaintiff's Second Amended Complaint (Docket No. 12). Plaintiff also alleges that she suffered retaliation at various times during her tenure at the Buffalo VA for complaining of discrimination by Li. See e.g., Martin-Thomas Aff. at ¶¶ 22, 24, 32, 37, 46, 61, 63.
Plaintiff testified at her deposition that, she had a respectable working relationship with Dr. Li during her first years at the Buffalo VA. Deposition Transcript of Sandra Martin-Thomas (hereinafter "Martin-Thomas Dep.") at pg. 19. According to Li, he and Plaintiff worked well together until December 2007. Deposition Transcript of Carlos Li (hereinafter "Li Dep.") at pg. 134.
Plaintiff alleges that four incidents occurring between 2005 and 2007 created a racially hostile work environment. First, in August of 2005, Dr. Li called Dr. Awolesi, a Nigerian native, to the bedside of an emaciated Caucasian patient being treated in the intensive care unit at the Buffalo VA and asked him if the patient reminded him of "his people" from Nigeria. Plaintiff was not present for the comment, but she was told about the comment later by Dr. Awolesi. Second, in August of 2005, the Cardiothoracic Surgical staff, including Plaintiff, was gathered in a conference room preparing to watch a training video. On the television, news footage of people looting in the aftermath of Hurricane Katrina played. Dr. Awolesi made a comment that he was interested in going to New Orleans "to help." Dr Li joked, "Why, you want to go there and loot?" Martin-Thomas Dep. at pg. 34. Third, in April 2007, in the backdrop of the radio host Don Imus' infamous use of the term "nappy headed hos," Dr. Li told a related joke following the death of singer Don Ho in which he referred to Ho's large number of grandchildren as "nappy bottomed Hos." Fourth, between March 2007 and December 2007, Dr. Li placed a toy monkey attached to a string on a Mylar balloon on his office door at the Buffalo VA. Plaintiff alleges that the stuffed animal attached to the door was a representation of people of African American descent and was attached to the door in a way that made the monkey looked "lynched."
Dr. Li asserts that he attached the monkey to the door during an office move, where the Cardiothoracic Surgical Service was changing to new offices. Dr. Li claims that the monkey was attached to the door to signify that he had chosen that specific office, because he was not present when others in the Cardiothoracic Surgical Service were going to be moving into the offices. The monkey had been given to him by a co-worker, and the balloon used to attach the monkey to the door, which read "To Our Fearless Leader Happy Bosses Day," was a gift to him from Plaintiff. He believed that the monkey represented himself, and hanging it on the door signified that it was his office. Dr. Li testified that he did not associate negative racial connotations with monkeys, nor was he aware at that time that the monkey could be seen as a derogatory symbol for African American people. Li Dep. at pg. 115.
Plaintiff testified at her deposition that Dr. Li never articulated to her any association between African Americans and monkeys, Martin-Thomas Dep. at pg. 53, nor did he make any comment with regard to race at all in relationship to the display on his door. Martin-Thomas Dep. at pg. 53-54.
When asked at her deposition why she believed that Dr. Li intended to place the monkey on his door as a symbol of a hanged African American instead of as a symbol that the office was his office, Plaintiff responded, "Because if he has got all these stuffed animals, he is Chinese, he should have just put his panda bear" on the door. Martin-Thomas Dep. at pg. 51. When asked for any other reasons to believe that Dr. Li displayed the stuffed monkey as an intentionally racist symbol, Plaintiff responded that he had already made racial remarks, like the looting remark, the "nappy bottomed Hos" remark, and the remark about the emaciated patient. Martin-Thomas Dep. at pg. 53-54.
The stuffed monkey was attached to the door for many months without Plaintiff or any other employees making a complaint to Li or anyone else at the Buffalo VA. Plaintiff now claims in her affidavit that she complained to Dr. Li and to the Human Resources Manager of the Buffalo VA "shortly" after the monkey was attached to the door. Martin-Thomas Aff. at ¶20. She also claims in her affidavit that "In December 2007, the lynched monkey was finally removed from Dr. Li's office door after multiple complaints regarding the same." Martin-Thomas Aff. at ¶21. Both of these statements from Plaintiff's affidavit flatly contradict her own deposition testimony. Martin-Thomas Dep. at pg. 54-60.
When asked when she spoke with the Human Resources Manager about the stuffed animal display, Plaintiff responded, "I believe it was the same day that I mentioned to Dr. Li about the monkey on the door." Martin-Thomas Dep. at pg. 55. When asked if she talked to Dr. Li first, before talking to anyone in Human Resources, Plaintiff responded "Yes." Id. When asked how long the monkey had been on the door before she raised the issue with Dr. Li, she responded, "four or five months." Id. Plaintiff then testified that as soon as she raised the issue of the stuffed monkey being on the door, "[Dr. Li] went and took it off the door and snatched it off the door and put it in the trash." Martin-Thomas Dep. at pg. 57. She confirmed that she only talked to the Human Resources Manager after she complained to Dr. Li. Martin-Thomas Dep. at pg. 58-59. She explained, "The reason why I also had to raise the issue with [Human Resources] because I had an issue with Dr. Li about my evaluation, and so that is the reason why I raised [the issue with the monkey]." Plaintiff testified that she was not "even going to raise the [stuffed animal] issue with [Dr. Li]" until "he told [her] that [she] was causing a hostile environment in the department." Martin-Thomas Dep. at pg. 57.
This Court also notes, however, that when discussing her retaliation claims later in her deposition, although changing her mind several times, Plaintiff stated that the stuffed monkey complaint happened before the evaluation. Martin-Thomas Dep. at pg. 84-87.
Plaintiff's Unlawful Retaliation Claims
Defendant asserts that when Jackie Clifford ("Clifford") became the Buffalo VA's Medical Care Line Manager in September 2007, she enforced higher standards in evaluating employee performance. Accordingly, Defendant asserts that the arrival of Clifford as Medical Care Line Manager changed Dr. Li's management approach. Clifford prompted Buffalo VA managers, and Dr. Li specifically, to be more cognizant of employee's timeliness in maintaining their work schedules including Plaintiff's. ...