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Daudier v. E&S Medical Staffing, Inc.

United States District Court, Second Circuit

August 15, 2013



PAUL A. ENGELMAYER, District Judge.

Plaintiff Esther Daudier brings this action against E&S Medical Staffing, Inc. ("E&S") and Ferncliff Nursing Home Company, Inc. ("Ferncliff"), alleging that defendants interfered, on the basis of her race, with her right to make and enforce contracts under 42 U.S.C. § 1981. Defendants move for summary judgment under Federal Rule of Civil Procedure 56(a). For the reasons that follow, defendants' motions are granted.

I. Background and Undisputed Facts[1]

A. The Parties

Daudier is a black woman of Haitian descent. Daudier Dep. 42; Daudier Decl. ¶ 2. She is trained as a Certified Nurse Assistant ("CNA"). Daudier Decl. ¶ 3.

Ferncliff operates a nursing home located in Rhinebeck, New York. Polera Decl. ¶ 3. E&S is a temporary staffing agency that provides contract medical personnel to medical facilities throughout New York State. Id. ¶ 2. Between 2004 and February 11, 2010, E&S provided Ferncliff with temporary medical personnel pursuant to their May 14, 2004 agreement. See id. ¶¶ 1, 3; Kelly Decl. ¶ 4; see also id. Ex. 1 (the "Ferncliff/E&S Agreement"). Daudier was not a party to that agreement. Kelly Decl. ¶ 6 & Ex. 1.

B. Daudier's Employment

On May 23, 2008, Daudier signed an employment contract with E&S. Daudier Dep. 59; Daudier Decl. ¶ 8; see Dkt. 77-17 (the "Employment Agreement").[2] In spring 2008, E&S assigned Daudier to work as a CNA at Ferncliff. Polera Decl. ¶ 6; Def. 56.1 ¶ 12; Pl. 56.1 ¶ 12. Daudier continued to receive her hourly wage directly from E&S while she worked at Ferncliff. Polera Decl. ¶ 4; Kelly Decl. ¶ 5. Daudier had no direct employment contract with Ferncliff. Daudier Dep. 29. Daudier's duties included caring for elderly residents-including cleaning, bathing, feeding, performing range of motion exercises on their limbs, and checking their vital signs. Daudier Decl. ¶ 11.

Daudier continued to work at Ferncliff until January 17, 2010. Polera Decl. ¶¶ 7, 13; Def. 56.1 ¶ 12; Pl. 56.1 ¶ 12. This litigation arises primarily from events that occurred on January 16 and 17, 2010. Daudier worked the overnight shift that spanned from January 16, 2010 at 11 p.m. to January 17, 2010 at 7 a.m. Tompkins Decl. ¶ 4; Daudier Decl. ¶ 18. On the morning of January 17, 2010, Karen Tompkins, the Nursing Supervisor at Ferncliff, arrived at work at 7 a.m. Tompkins Decl. ¶¶ 2-3. Upon her arrival, Tompkins was informed by Katherine Weisberg, a nurse, that a resident ("Resident J") had complained about Daudier's treatment of her during the overnight shift. Id. ¶ 5. Tompkins requested a written report, which Weisberg provided to her on January 18, 2010. Id. ; see also id. Ex. 1. (the "Report"). After reviewing the Report, which is discussed in more detail infra, Tompkins learned that several other complaints had been made against Daudier relating to the January 16-17 overnight shift. Id. ¶ 6; see also id. Ex. 1.[3]

On January 17, 2010- i.e., before Tompkins received the Report-she was under the impression that only one complaint had been made against Daudier relating to the January 16-17 overnight shift. Id. ¶ 6. Tompkins called her supervisor, Patricia Corrado, the Assistant Director of Nursing at Ferncliff. Id. ¶ 7; Corrado Decl. ¶ 2. On that call, Tompkins advised Corrado of Resident J's complaint against Daudier. Tompkins Decl. ¶ 7; Corrado Decl. ¶ 3. When a complaint of misconduct is made against a Ferncliff employee or temporary staff member, Ferncliff's practice is to suspend the accused employee without pay pending the completion of the investigation. Corrado Decl. ¶ 6; Kelly Decl. ¶ 17; Def. 56.1 ¶ 50; Pl. 56.1 ¶ 50. Accordingly, Corrado directed Tompkins to call E&S and ask E&S to inform Daudier not to report to work at Ferncliff until an investigation into the allegation of abuse had been completed. Tompkins Decl. ¶ 7; Corrado Decl. ¶ 5.

Later on January 17, 2010, Tompkins called E&S and spoke with Debra Polera, who was the Chief Financial Officer of E&S and was in charge of staffing the nurses. Tompkins Decl. ¶ 8; Polera Decl. ¶¶ 1, 7; Daudier Decl. ¶ 12. Tompkins informed Polera of the fact, but not the substance, of Resident J's complaint against Daudier. Tompkins Decl. ¶ 8; Polera Decl. ¶¶ 7-8. Tompkins also informed Polera that Resident J did not like "women of color." Polera Decl. ¶ 7. Tompkins asked that Polera instruct Daudier not to report to work at Ferncliff for her next scheduled shift, but Polera told Tompkins to call Daudier directly, see Tompkins Decl. ¶ 8, apparently because Polera was not in the office and thus did not have Daudier's phone number, see Polera Decl. ¶ 7.

On January 17, 2010, after speaking with Polera, Tompkins called Daudier directly and left her a voicemail. Tompkins Decl. ¶¶ 9, 11. On that voicemail, Tompkins states:

Hello Esther, Karen Tompkins at Ferncliff. I hate to call but there were some complaints on the night shift last night, on 3A. Um, some verbal, verbal complaints there. So, what we had to do is, is, is ask the nurse what happened, and until we can find out what, what happened, we have to ask you to stay home tonight. And um, I'm sure everything is fine. This one lady, um, just doesn't particularly like people of color I believe. So, um, anyway we have to look into this before we have you back. Thank you Esther. Its Sun-Sunday around 12:30. OK call me. Thanks, bye.

Satriano Decl. Ex. 6 (the "Voicemail").[4] Tompkins attests that, at the time she left the Voicemail, she still had not read the Report and thus was under the impression that Resident J's complaint was the only complaint from that night. Tompkins Decl. ¶ 11. She further attests that her statement that "one lady, um, just doesn't particularly like people of color, " was a reference to a prior complaint Resident J had made months earlier about being cared for by another black nurse, Rose Anglin. Id. ¶¶ 10-11. Tompkins attests that she added this detail to express her hope that the complaint would be resolved in Daudier's favor. Id. ¶ 11. Daudier never returned Tompkins's call or otherwise responded to her message. Id. ¶ 12.[5] Daudier attests that she did not return the call at the advice of Polera, who told Daudier that E&S would handle the situation. Daudier Decl. ¶ 31.

As noted, on January 18, 2010, Weisberg provided Tompkins with a written report explaining the complaints made against Daudier during the January 16-17 overnight shift. Tompkins Decl. ¶¶ 5, 14. The Report is not a model of clarity, but it appears to document four separate incidents involving four different residents. See id. Ex. 1. According to the Report, Resident S complained that Daudier called her a "pain in the ass"; Resident J reported that Daudier mocked her and would not help her with pain in her legs; Resident L complained that she was crying and was told by Daudier, "too bad"; and Resident I stated that she wet the bed because Daudier refused to take her to the bathroom. Id. Daudier denies the allegations in the Report. She attests that she never mistreated any resident, did not know the residents at issue, and was never informed about the substance of these complaints. See Daudier Decl. ¶¶ 40-49.

On January 19, 2010, Corrado received a copy of the Report. Corrado Decl. ¶ 9. Corrado thereafter called Daudier on several occasions and left her voicemails in an attempt, she attests, to obtain Daudier's side of the story; Daudier did not return Corrado's calls. Id. ¶ 12. On January 19, 2010, Corrado informed Carl Kelly, Ferncliff's Executive Director, that Ferncliff had commenced an investigation into the complaints against Daudier. Id. ¶ 10; Kelly Decl. ¶¶ 2, 16. Kelly also called Daudier on several occasions to obtain her version of the events, but Daudier did not return his calls. Kelly Decl. ¶¶ 18-19; Daudier Dep. 47-48; Polera Decl. ¶ 11. Daudier attests that she received several voicemails from Corrado and Kelly, but that Corrado's and Kelly's messages merely told her to call them back; she attests that the messages did not state the reason for the call, reference the residents' complaints of misconduct, or solicit Daudier's side of the story. Daudier Decl. ¶ 30. Daudier told Polera about the voicemails she had received, and, as noted, Daudier attests that Polera told her not to return any calls from Ferncliff because E&S was handling the situation. Id. ¶ 31; see also Daudier Dep. 47 ("I did not call [Kelly back] because at that time I felt violated."). A few weeks after these complaints were first raised, Polera saw Kelly about an unrelated matter and told him to stop calling Daudier. Polera Decl. ¶ 12. Thus, after Tompkins left the Voicemail on January 17, 2010, neither Tompkins, Corrado, nor Kelly had any further contact with Daudier, and thus never heard her version of the alleged events. Tompkins Decl. ¶ 21; Corrado Decl. ¶¶ 13-14; Kelly Decl. ¶¶ 19-20.

After January 17, 2010, E&S did not assign Daudier to return to work at Ferncliff. Polera Decl. ¶ 13. It is undisputed that there was some period during which Daudier was not working at all, but that, at some point in 2010, E&S assigned Daudier to work full-time at a Veterans Administration ("VA") nursing home. The exact timing of this reassignment, however, is disputed. Polera attests that she reassigned Daudier to the VA home within one month of January 17, 2010. Polera Decl. ¶ 13. Daudier's brief also identifies February 2010 as her start date at the VA home. Pl. Br. 6. Daudier testified in her deposition that she began at the VA home in "late 2010, " "probably in late November to early December." Daudier Dep. 31-32, 36. In her declaration, Daudier specifies that she began at the VA home in September 2010, after having been briefly assigned to Elant Nursing home in June 2010. Daudier Decl. ¶ 32; see also Daudier Dep. 76, 78 (referencing Elant). Daudier testified that during the interim period between her assignments to Ferncliff and the VA home, she remained under contract with E&S. Daudier Dep. 29-34, 53. However, because Ferncliff was E&S's only client at the time, E&S had no place to assign Daudier until it later found work for her at the VA home. Id. at 33-34. During that interim period, Daudier collected unemployment. Daudier Decl. ¶ 32.

It is undisputed that, whenever Daudier started at the VA home, she continued working there full-time as a contract employee for E&S until March 6, 2013. Daudier Dep. 31-32; Def. 56.1 ¶ 60; Pl. 56.1 ¶ 60. While working for E&S at the VA home, Daudier received a higher hourly rate than she had at Ferncliff. Daudier Dep. 31. On March 6, 2013, Daudier left the employ of E&S to begin full-time employment directly with the VA home; this provided her a higher hourly wage than E&S had paid, and health insurance that she previously had not received. Daudier Dep. 30-31, 50. E&S signed an addendum to Daudier's Employment Agreement releasing her from the non-compete clause contained therein. Dkt. 77-17. Daudier continues to be employed full-time by the VA home. Daudier Dep. 31.

Daudier testified that, other than Tompkins's Voicemail, Ferncliff employees never told her that she could not work there because of her race and no Ferncliff employee ever made racist comments to her. Daudier Dep. 44, 63, 68. She also testified that no employee of ...

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