United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Plaintiff Amelia Smith ("Smith" or "Plaintiff"), represented by counsel, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), (codified at 42 U.S.C. § 2000(e), et seq.) and the Age Discrimination in Employment Act of 1967, ("ADEA")(codified at 29 U.S.C. § 621 et. seq.) alleging race, national origin and age discrimination, and retaliation against her by her former employer, the United States Postal Service ("Postal Service").
Defendant now moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), seeking dismissal of Plaintiff's complaint in its entirety. Plaintiff opposes the motion. For the reasons set forth below, Defendant's motion is granted.
The following facts are taken from the entire record, including the parties' submissions pursuant to Local Rule 56(a), and are not in dispute unless otherwise noted. Dkt. Nos. 15, 16, 18. Plaintiff, an African American female, was born on April 28, 1930 in Trinidad, and was 76-77 years old at all relevant times alleged in the Complaint.
Plaintiff worked for the Postal Service as a registered nurse beginning in September 1979 until her retirement in early 2008. While employed, Plaintiff was assigned to the Western New York District Health Unit at the Postal Process and Distribution Center on Jefferson Road in Henrietta, New York. At all times relevant to the Complaint, Plaintiff was the only nurse on the Tour III shift, working from 4PM to 12:30AM.
Plaintiff's supervisor, Occupational Health Nurse Administrator (OHNA) Valerie Imburgia ("Imburgia"), supervised two medical units, one in Rochester and one in Buffalo. Imburgia, who is white and was age 55 on the date of her deposition in June 2012, was stationed primarily in Buffalo and worked days from 8AM to 4PM.
OHNA Nurses Diane Galeazzo ("Galeazzo") and Lorie Wildman-Mackey ("Wildman-Mackey") worked in the Rochester Medical Unit on Tour II. Galeazzo, who at all relevant times was a white female in her fifties, worked days from 7AM to 3:30PM. Wildman-Mackey, who at all relevant times was a white female in her forties, worked days from 8:30AM to 5PM. According to Imburgia, two nurses were assigned to Tour II because of the heavier workload during the day tour. According to the Defendant, the role of the Tour III nurse was to be available to employees on the evening tour in the event a medical need arose. Plaintiff's job duties included, but were not limited to, treating minor injuries, conducting drug tests, blood pressure checks, and filing medical information.
In June 2006, Dr. Elaine Tunaitis, a contract physician assigned to the Rochester Medical Unit, directed Plaintiff to clean the lunch room in the Medical Unit while another nurse completed an employee's medical examination.
Plaintiff complains that, throughout 2007, while employed at the Postal Service, she was treated differently than her coworkers. For example, Plaintiff maintains that Wildman-Mackey and Galeazzo would leave their work shift without completing duties such as organizing supplies and completing and filing charts, which Plaintiff had to complete. Wildman-Mackey and Galeazzo would also occasionally leave without cleaning refuse and specimens from the Medical Unit which Plaintiff was then required to complete during her shift. On occasion, Plaintiff was required to go to the workroom floor to retrieve supplies. According to Imburgia, who was responsible for managing the workload in the Rochester Medical Unit, the bulk of the direct patient work was done by the Tour II day nurses, occasionally leaving ministerial work for the evening staff to complete. Plaintiff complained to Imburgia that she objected to the work left by the Tour II nurses, but never reported to Imburgia that she was being left less preferable work assignments based on her age or national origin or race.
Plaintiff also complains that, in 2007, while employed at the Postal Service, she was subjected to offensive language from her co-workers. For example, Plaintiff overheard Galeazzo refer to an African American mail handler as an "ugly black pimp." On another occasion, Galeazzo, in reference to an African American supervisor, allegedly stated that she "[couldn't] stand that woman." On yet another occasion, Wildman-Mackey and Galeazzo allegedly remarked that Plaintiff was the "oldest one in here." In 2007, Wildman-Mackey allegedly said to Plaintiff that she had been working too long and asked Plaintiff when she was going to retire.
On or about August 22, 2007, Wildman-Mackey sent an email to another Postal Service employee in which she disclosed Plaintiff's date of birth. The following day, the Manager of Health and Resource Management reprimanded Wildman-Mackey about Wildman-Mackey's email disclosure.
In 2007, new procedures regarding medical charting were introduced to the Medical Unit. Imburgia, who reviewed these procedures with the nurses, organized nurse staff meetings when shifts overlapped and made it a point to schedule the meetings when all nurses could be present. Plaintiff disputes this and maintains that she was left out of these meetings, and would make charting errors in medical records because she did not receive the proper training. Once the errors came to light, Imburgia would then discuss the new procedures with Plaintiff. Plaintiff believed that Galeazzo and Wildman-Mackey told Imburgia about her errors. Imburgia counseled Plaintiff about charting procedures on three to six occasions in 2007 for 20-25 minutes on each occasion. Thereafter, Plaintiff began reporting to Imburgia errors that she uncovered that had been made by Wildman-Mackey and Galeazzo. Plaintiff was never given a letter of warning, demoted, or received any pay reduction as a result.
According to Imburgia, months after beginning her employment with the Postal Service in October 2006, she became aware of inadequate performance issues regarding Plaintiff's work, including whether proper paperwork was being completed, whether Plaintiff understood how to perform a breathalyzer test, instances where medical file documentation was incorrectly filed, and when work restrictions were not properly documented or that the supervisor was not made aware of necessary medical accomodations. Plaintiff admits that she sometimes made errors in paperwork and at times misfiled documents, but disputes that she did not know how to perform a breathalyzer test, or that she regularly failed to properly document work restrictions. According to Imburgia, issues also arose regarding Plaintiff's nursing judgment when, on one occasion, Plaintiff allowed an employee who sustained a head injury to drive himself home, which Plaintiff strongly disputes. Imburgia was responsible for ensuring all occupational health nurses followed proper procedures and supervised all of the nurses responsible to her for compliance of performance standards. Imburgia met with Plaintiff on February 9, 2007, March 1, 2007, April 2, 2007, and June 26, 2007 to give her feedback and counsel her with respect to the performance issues. This procedure followed a general policy in place requiring that errors should be reported to Imburgia. When she uncovered errors made by Galeazzo or Wildman-Mackey, she similarly met with them and counseled them.
Based on the Plaintiff's work performance issues presented, Imburgia considered whether a Fitness-for-Duty examination was warranted. Imburgia was also aware that Plaintiff had undergone four eye surgeries in 2007. On March 29, 2007, Imburgia spoke with Idell Mitchell ("Mitchell"), head of Plaintiff's Union, about Plaintiff's performance issues. According to Imburgia, Mitchell recommended that Plaintiff undergo a Fitness-for-Duty Examination. Imburgia reviewed the Fitness-for-Duty procedures, and spoke with her supervisor who approved Imburgia's preparation of a Request for Fitness-for-Duty Examination Form 2492. Although Plaintiff agreed to Imburgia's request that she undergo a Fitness-for-Duty examination, she never complied with that request.
On June 22, 2007, Plaintiff underwent two of her four eye surgeries. When a Postal Service employee is on medical leave for an extended period, the Postal Service requires documentation from the employee's treating physician before the employee can return to work to ensure the employee is fit to work. The Postal Service would typically require an employer's medical provider to provide a return-to-work date and any restrictions or limitations for the employee. After her second eye surgery, an issue arose involving Plaintiff's return to work date, and Wildman-Mackey called Dr. Chawla, Plaintiff's eye doctor, for additional information concerning a diagnosis verification. According to Plaintiff, Wildman-Mackey contacted Dr. Chawla for additional work information as a means to harass her based on her race.
On August 2, 2007, Imburgia was instructed by her supervisor to permit Plaintiff to return to work without an examination by a Postal Service physician, which Imburgia had wanted Plaintiff to undergo. On that date, Imburgia called Plaintiff at home to inform her that she was released to return to work, and was given the option to return that day for her 4PM shift, or she could return the next day. Imburgia incorrectly advised Plaintiff that if she returned on August 3, she would be paid administrative leave for August 2. Upon learning of this error, the director of Postal Service Human Resources in Buffalo, who had authority to determine how Plaintiff was paid for the time out of work, instructed Imburgia to contact Plaintiff to tell her that if she did not return to work on August 2, she would be charged leave time. Regardless of the director's instruction, the Postal Service ultimately credited Plaintiff with administrative leave between July 30 and August 2 for the time she was absent from work due to any return to work issues.
On July 2, 2007, Plaintiff executed a PS Form 2564-A, Information for Pre-Complaint Counseling. On August 16, 2007, Plaintiff filed an EEOC Complaint of Discrimination against the Postal Service alleging that: (1) she was subjected to discrimination and disparate treatment when her supervisor subjected her to scrutiny and counseling because of performance errors more than her white co-workers; (2) she was subjected to disparate treatment because she was not allowed to return to work on July 30, 2007 after surgery until cleared by a Postal Service physician; (3) she was subjected to discrimination and disparate treatment when she was told on August 2 that she could return to work on August 3 and be compensated with administrative leave, and then told she would not be paid for August 2; (4) she was subjected to a hostile work environment based on her race due to the negative attitude of her co-worker Galeazzo ...