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Dall v. St. Catherine of Siena Med. Ctr.

United States District Court, E.D. New York

August 14, 2013

ROBERT DALL, Plaintiff,

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[Copyrighted Material Omitted]

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For Robert Dall, Plaintiff: Joshua S. Beldner, Steven A. Morelli, LEAD ATTORNEYS, Law Office of Steven A. Morelli, P.C., Garden City, NY.

For St. Catherine of Siena Medical Center, Defendant: Mary Ellen Donnelly, LEAD ATTORNEY, Putney, Twombly, Hall & Hirson LLP, New York, NY; Randi Brooke Feldheim, Putney Twomnly Hall & Hirson, New York, NY.


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MARGO K. BRODIE, United States District Judge.

Plaintiff Robert Dall brings the above-captioned action against Defendant St. Catherine of Siena Medical Center (" Medical Center" ), asserting claims of gender discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (" Title VII" ), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq . (" NYSHRL" ). Defendant moved for summary judgment on all claims. For the reasons set forth below, the Court denies Defendant's motion for summary judgment as to Plaintiff's gender discrimination claim, and grants Defendant's motion for summary judgment as to Plaintiff's hostile work environment and retaliation claims.

I. Background

On January 8, 2001, Plaintiff was hired as a per diem special procedures technician in the radiology department by Defendant, a not-for-profit hospital located in Smithtown, New York. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) On April 28, 2002, he was promoted to a full-time special procedures technician, and on May 16, 2005, Plaintiff's job title was changed to MRI technician. (Def. 56.1 ¶ ¶ 20, 22; Pl. 56.1 ¶ ¶ 20, 22.) Plaintiff was a member of the Union which represented the Medical Center's health care professionals, and was elected President of the Union in 2004. (Def. 56.1 ¶ ¶ 28-29, Pl. 56.1 ¶ ¶ 28-29.)

In or about March 2007, Beatrice Birmingham began working as a nurse in the radiology department. (Def. 56.1 ¶ 65; Pl. 56.1 ¶ 65.1.) According to Plaintiff, Birmingham regularly acted in a sexually explicit manner while at work. (Pl. 56.1 ¶ 65.3.) Birmingham told sexually explicit stories, visited explicit websites on work computers, showed employees a drawing of her vagina, described her boyfriend's genitalia, brought a chocolate penis to work, openly discussed her personal sex toys, and regularly told co-workers her " lips were made for blow jobs." (Pl. Dep. 108:5-112:24, 195:13-196:24, 222:1-15.) Plaintiff found Birmingham's behavior to be " offensive" and " downright disgusting," and the behavior made him uncomfortable. (Pl. Dep. 221:16-222:15.) Plaintiff and others in the department told Birmingham that she was disclosing " too much information," or that " we don't need to go there."

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( Id . at 110:1-7, 121:16-21.) Both Plaintiff and Andrea Scott, a nurse employed at the Medical Center, witnessed Birmingham bring in a photograph of her ex-husband's genitalia and show it to coworkers in the radiology department. ( Id . at 111:12-19; Scott Decl. ¶ 5.) According to Susan Horn, a nurse employed at the Medical Center, Bonnie Wilson, a nurse formerly employed at the Medical Center, and Karalyn Krieger, a computed tomography technologist (" CT tech" ) currently employed by the Medical Center, Birmingham routinely acted in a manner inappropriate for the workplace. (Horn Dep. 10:3-14; Wilson Decl. ¶ 5; Krieger Decl. ¶ 4.) Birmingham wore tight clothing and sat on the laps of male coworkers. (Horn Dep. 12:7-13:15.) According to Horn, Birmingham's behavior, including frequent conversations of a sexual nature, made the work environment uncomfortable. (Horn Dep. 10:11-12:6.)

On December 12, 2009, the employees of the radiology department were invited to attend an annual holiday party at Mediterranean Manor on Long Island. (Def. 56.1 ¶ ¶ 55-60; Pl. 56.1 ¶ ¶ 55-60.) When Plaintiff arrived at the party, Birmingham told Plaintiff that she was " going commando," or not wearing underwear, under her dress. (Pl. Dep. 125:4-25.) Birmingham and Anne Marie Hawkins, another radiology nurse, were " visible intoxicated," at the party. (Scott Decl. ¶ 6; Pl. Dep. 125:2-3.) During the event, Birmingham and Hawkins waited for all the male individuals to gather around with their telephones and cameras and started kissing. (Pl. Dep. 126:1-19.) While Birmingham was posing for a photograph, Plaintiff used his cellular telephone to take a photograph of her when her leg was raised. (Pl. Dep. 126:1-19; Hawkins Aff. ¶ ¶ 5, 6.) According to Plaintiff, the photograph was of Birmingham's knee and lower thigh, (Pl. Dep. 126:19, 129:13-14), and, according to Wilson, the photo did not show anything explicit or inappropriate (Wilson Decl. ¶ 6). According to Hawkins, Plaintiff told her that he took the photograph underneath Birmingham's dress and that it was a photograph of her " ass." (Hawkins Aff. ¶ ¶ 6, 8.) Danielle Robbins, Defendant's human resources representative, testified that Hawkins and Birmingham acted inappropriately at the party, kissing and dancing with each other. (Robbins Dep. 40:10-41:17.)

When Plaintiff showed Birmingham the photograph at the party, Birmingham did not ask him to delete it. (Pl. Dep. 127:7-9.) In the days following the party, Defendant maintains that Plaintiff proceeded to show the photograph to other employees at the Medical Center. (Def. Mem. 5; Robbins Aff. ¶ 10.) According to Plaintiff, Hawkins approached Plaintiff and asked to see his telephone. (Pl. Dep. 130:18-131:10.) Plaintiff handed Hawkins his telephone, and he observed her showing the photograph to other employees. (Pl. 56.1 ¶ 75; Pl. Dep. 130:18-133:24.).

In early January 2010, Plaintiff and Birmingham had a verbal confrontation relating to a patient. (Pl. Dep. 134:17-135:25; Krieger Decl. ¶ 7.) According to Plaintiff, Birmingham disappeared while at work and refused to assist a patient, and Plaintiff complained to his supervisor, Dave Cook. (Pl. Dep. 134:18-20.) Cook complained to Gayle Romano, Birmingham's supervisor. ( Id . at 134:18-20.) Birmingham approached Plaintiff about his complaint, and Plaintiff told her that if " she put half the effort into doing her work as she did to this, she'd be a halfway decent nurse." ( Id . at 134:23-135:7.) Following the confrontation, Birmingham was upset. (Pl. 56.1 ¶ ¶ 76.6-76.8; Krieger Decl. ¶ 7.)

On January 10, 2010, within a day or two of the confrontation between Plaintiff and Birmingham, and a month after the holiday

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party, Birmingham filed a complaint of sexual harassment with her supervisor, Romano, against Plaintiff for taking the photograph and allegedly circulating it at the Medical Center. (Def. 56.1 ¶ 77; Pl. 56.1 ¶ 77; Krieger Decl. ¶ ¶ 7-8.) In Birmingham's complaint, she stated that she first heard about Plaintiff's photograph during the week after the holiday party. (Beldner Decl. Ex. G (" Birmingham Compl." ).) During her deposition, however, Birmingham stated that she filed her complaint the morning after she was informed by Hawkins that Plaintiff was showing the photograph to others at the Medical Center. (Birmingham Dep. 43:3-47:21.)

The day after Birmingham filed her complaint, Plaintiff approached her in the hallway at the Medical Center, asked her why she filed her complaint, and stated that the Medical Center was going to try to fire him. (Pl. Dep. 147:1-24.) Plaintiff told her that he was not showing the photograph around -- he " wouldn't do such a thing." ( Id . at 147:22-148:1.) Birmingham told him that she needed to speak to Romano and that she would get back to Plaintiff. ( Id . at 148:2-4.) Birmingham did not follow up with Plaintiff, so later that evening, Plaintiff sent a text message to Birmingham stating " How could you do that to somebody?" ( Id . at 148:11-16.) After Birmingham did not respond, Plaintiff spoke to her boyfriend Steve, a CT tech at the Medical Center, and asked him what was going on. ( Id . at 148:15-22.) Steve told Plaintiff that Birmingham was not allowed to speak to Plaintiff, and that she " better not and could not rescind her complaint." ( Id . at 148:21-25.) According to Scott, Birmingham did attempt to rescind her complaint against Plaintiff, but Romano, Birmingham's supervisor, would not allow her to do so. (Scott Decl. ¶ 8.) According to Wilson, Birmingham did not want to file the complaint against Plaintiff in the first place, but the Medical Center management pressured her into doing so. (Wilson Decl. ¶ 11.)

Robbins conducted an investigation as a result of Birmingham's complaint. (Def. 56.1 ¶ 113; Pl. 56.1 ¶ 113.) According to Robbins, she interviewed three individuals identified by Birmingham as having witnessed Plaintiff's inappropriate conduct, and each employee confirmed Birmingham's allegations. (Robbins Aff. ¶ ¶ 14-20; Hawkins Aff. ¶ 10.) Robbins interviewed Hawkins, who informed Robbins that she wanted " to remain confidential because she feared that Plaintiff would retaliate against her." (Robbins Aff. ¶ 15.) Hawkins informed Robbins that Plaintiff had shown her the photograph of Birmingham on his telephone and told her he took the photograph underneath Birmingham's dress at the holiday party. ( Id . ¶ 16.) Hawkins also told Robbins that she witnessed Plaintiff showing the photograph to other employees at the workplace. ( Id .) Robbins also spoke with Charles Maury and Bonnie Wilson, two other employees in the radiology department. ( Id . ¶ 17.) Maury told Robbins that he had observed Plaintiff show the photograph to Birmingham at the holiday party and that Birmingham requested that Plaintiff delete the photograph. ( Id . ¶ 18.) Plaintiff later showed Maury the photograph and stated that it was a photograph of Birmingham's " ass." ( Id . ¶ 18.) Birmingham confided in Maury that she was " distraught over the incident and felt that her personal space had been violated." ( Id . at ¶ 19.) Wilson told Robbins that Plaintiff had shown her a photograph in the workplace that " looked like 'flesh' and advised her that the photograph was a picture he had taken at the Holiday Party of Ms. Birmingham's thigh." ( Id . at ¶ 20.)

On January 12, 2010, two days after Birmingham filed her sexual harassment

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complaint against Plaintiff, Robbins met with Plaintiff to discuss Birmingham's complaint. (Def. 56.1 ¶ ¶ 119-24; Pl. 56.1 ¶ ¶ 119-24.) Plaintiff admitted that he had used his cellular telephone to take a photograph of Birmingham at the holiday party. (Def. 56.1 ¶ 122; Pl. 56.1 ¶ 122; Robbins Aff. ¶ 21.) According to Robbins, Plaintiff admitted that he took the photograph under Birmingham's dress and had shown the photograph and permitted the photograph to be shown to co-workers within the radiology department. (Robbins Aff. ¶ 21.) Plaintiff told Robbins repeatedly that " he did not believe that he had done anything wrong, either in taking the picture or circulating the picture throughout the [r]adiology [d]epartment." ( Id .) Robbins told Plaintiff that she would continue to investigate the complaint and that he should " refrain from contacting Ms. Birmingham regarding her complaint." ( Id . ¶ 23.) Plaintiff maintains that he offered to show Robbins the photograph in order to demonstrate that there was nothing inappropriate about it but Robbins declined to view the photograph. (Pl. Decl. ¶ 3.) Plaintiff denies being told not to contact Birmingham. ( Id . ¶ 4.) Plaintiff asked Robbins whether the situation would be resolved if Birmingham rescinded her complaint, and Robbins informed him that, if Birmingham rescinded her complaint, there would be nothing for Robbins to investigate. ( Id .)

According to Wilson, she was asked by Dominic Pernice, the Director of Radiology, and Gayle Romano, Director of Critical Care and Radiology Nursing, to submit a written statement against Plaintiff. (Wilson Decl. ¶ 8.) Although she initially told them that she was not comfortable because she did not want to be involved and she did not believe that Plaintiff had done anything wrong, she eventually agreed after numerous requests by Pernice and Romano. (Wilson Decl. at ¶ ¶ 8-9.) Wilson maintains that she was pressured into submitting the statement. ( Id . at ¶ 10.)

On January 13, 2010, two days after Birmingham filed her sexual harassment complaint against Plaintiff, Plaintiff filed a sexual harassment complaint with Robbins against Birmingham, setting forth Birmingham's sexually inappropriate behavior in the workplace. (Def. 56.1 ¶ ¶ 126-129.) Plaintiff maintains that he had not previously filed a complaint because he was afraid of retaliation and did not want to cause any problems, but by filing a complaint against him, Birmingham " made it fair to go out and complain." (Pl. Dep. 142:20-143:6.) Plaintiff approached three co-workers -- RJ Klein, Rich Garrant, and Karolyn Krieger -- and asked them to submit statements confirming the allegations in his complaint. (Def. 56.1 ¶ 140; Pl. 56.1 ¶ 140.) Garrant and Krieger testified that they were not pressured or coerced into signing the statement they submitted in support of Plaintiff's complaint. (Garrant Dep. 16:9-18, 22:17-22; Krieger Decl. ¶ 5.) Klein told Robbins that he was pressured by Plaintiff to submit a statement in support of Plaintiff's complaint. (Def. 56.1 ¶ 153; Pl. 56.1 ¶ 153.1.) Klein, Garrant and Krieger confirmed that Birmingham routinely acted in a sexually inappropriate manner. (Pl. 56.1 ¶ ¶ 150-66.) Robbins testified that she thought both Birmingham and Plaintiff acted inappropriately, but that Birmingham acted more inappropriately. (Robbins Dep. 70:2-25.)

During the course of Robbins's investigation, she conversed with Lynda Larson, Plaintiff's Union Advisor. (Pl. Dep. 166:19-167:3; Robbins Dep. 84:22-85:9.) According to Larson, Robbins told her that the Medical Center had a " zero tolerance policy" with respect to sexual harassment and was therefore seeking to terminate Plaintiff's employment. (Larson Decl. ¶ 5.) Based on those conversations, Larson understood that Defendant was " unequivocally

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seeking the termination" of Plaintiff. (Larson Decl. ¶ 6.) Larson therefore communicated to Plaintiff that he would be terminated if he did not resign. (Pl. Dep. 224:24-225:6.) Plaintiff claims that Robbins communicated directly to him that he would be terminated if he did not resign. (Pl. Dep. 224:18-225:2.) According to Plaintiff, Robbins made it clear that suspension was not an option and told him that she was " being pressured by a committee" to terminate him. (Pl. Dep. 152:2-6.) Robbins maintains that she did not request Plaintiff's resignation or advise Plaintiff that he would be terminated if he did not resign. (Robbins Aff. ¶ 38.)

On January 15, 2010, Plaintiff met with Robbins to discuss the results of the investigation. (Def. 56. ¶ 187; Pl. Dep. 152:1-154:9.) According to Robbins, at the time of this meeting, the Medical Center had not yet decided what disciplinary action would be imposed against Plaintiff. (Robbins Aff. ¶ 37.) On January 15, 2010, Plaintiff resigned. (Def. 56.1 ¶ 194; Pl. 56.1 ¶ 194.) Plaintiff testified that he resigned after the meeting in a letter which stated he was leaving due to the hostile work environment caused by Birmingham. (Pl. Dep. 154:7-9.)

Robbins testified that, following her investigation, a determination was made to suspend Birmingham, and she believed Birmingham was suspended.[1] (Robbins Dep. 98:19-99:7.) Following the investigation, all employees in the radiology department were required to attend mandatory sexual harassment training. (Def. 56.1 ¶ 179; Pl. 56.1 ¶ 179.)

II. Discussion

a. Standard of Review

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Kwong v. Bloomberg, 723 F.3d 160, 164-165, 2013 WL 3388446, at *4 (2d Cir. July 9, 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not " to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient " evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The " mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; " there must be evidence on which the jury could reasonably find for the plaintiff." Id . The court's function is to decide " whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The Second Circuit has " cautioned that '[w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Taddeo v. L.M. Berry & Co., 526 Fed.Appx. 121, 122, 2013 WL 1943274, at *1 (2d Cir. May 13, 2013) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)).

b. Gender Discrimination Claim

Plaintiff claims that he was treated differently, and constructively terminated, on

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account of his gender. Title VII prohibits an employer from discharging or discriminating " against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Thus, " [a]n employment decision . . . violates Title VII when it is 'based in whole or in part on discrimination.'" Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)).

Title VII claims are assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).[2] See Mills v. S. Conn. State Univ., 519 Fed.Appx. 73, 2013 WL 2157955, at *1 (2d Cir. May 21, 2013) (applying McDonnell Douglas framework to gender discrimination claim). Under the framework, a plaintiff must first establish a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); see also Ruiz v. County Of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). Plaintiff's burden at this stage is " minimal." Holcomb, 521 F.3d at 139 (quoting Hicks, 509 U.S. at 506). If Plaintiff satisfies this initial burden, the burden then shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506-07; Ruiz, 609 F.3d at 492. Defendant's burden " is not a particularly steep hurdle." Hyek v. Field Support Servs., 702 F.Supp.2d 84, 93 (E.D.N.Y. 2010). It " is one of production, not persuasion; it 'can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Hicks, 509 U.S. at 509). If Defendant offers a legitimate, nondiscriminatory explanation for its action, summary judgment must still be denied, however, if Plaintiff can show that " the evidence in plaintiff's favor, when viewed in the light most favorable to the plaintiff, is sufficient to sustain a reasonable finding that his dismissal was motivated at least in part by [gender] discrimination." Adamczyk v. N.Y. Dep't of Corr. Servs., 474 F. App'x 23, 25 (2d Cir. 2012) (quoting Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 114 (2d Cir. 2007)); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. __, __, 133 S.Ct. 2517, 2522-23, 186 L.Ed.2d 503 (2013) ( " An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision." ); Edwards v. Huntington Union Free Sch. Dist., No. 11-CV-1408, 957 F.Supp.2d 203, 2013 WL 3785620, at *5 (E.D.N.Y. July 18, 2013) (explaining the burden shifting analysis for Title VII claims).

Defendant argues that Plaintiff cannot establish a prima facie case because there is no adverse action and no inference of

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discrimination. (Def. Mem. 10-15.) For the following reasons, viewing all facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has presented sufficient evidence from which a reasonable jury could ...

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