United States District Court, E.D. New York
MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
Plaintiff Jillian John commenced the above-captioned action, pro se, against Defendant Kingsbrook Jewish Medical Center/Rutland Nursing Home ("Kingsbrook") alleging discrimination, retaliation and hostile work environment claims based on race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant moved for summary judgment on all claims. The Court heard oral argument on December 5, 2013. The Court granted Defendant's motion for summary judgment with respect to Plaintiff's discrimination claim based on unlawful termination and Plaintiff's hostile work environment claim, and granted the parties leave to file additional briefs concerning certain factual issues. For the reasons stated below, the Court grants Defendant's motion for summary judgment on all remaining claims.
a. Employment and Treatment History
Plaintiff Jillian John was born in Grenada, West Indies and moved to the United States in "African-American." (Pl. Dep. 32:7-9; Def. 56. ¶¶ 5-7.) Plaintiff applied for a certified nursing assistant ("CNA") position at Rutland Nursing Home ("Rutland") in 1996. (Def. 56.1 ¶ 17.) Rutland is a nursing home subsidiary of Kingsbrook, a not-for-profit health care institution located in Brooklyn, New York, that offers acute care, nursing home, and clinical services. (Def. 56.1 ¶¶ 1, 8.) Plaintiff worked as a CNA until approximately November 2002 when she began working as a staffing clerk at Rutland. ( Id. ¶ 18; Pl. Opp'n Decl. ¶ 8.)
i. The Kronos Training and Other Workplace Incidents
Defendant uses three different software programs to manage hours and payroll and keep various employment records. (Liggins Decl. ¶ 5.) "Kronos" was used for timekeeping, "Lawson" was used for generating payroll and "Ansos" was used for making staff schedules and for managing and regulating staffing. ( Id. )
In November 2007, Plaintiff was asked to attend a training on the Kronos software program ("Kronos Training Incident"). (Def. 56.1 ¶ 66.) Kronos was used for timekeeping and, ideally, would keep an accurate record of the hours that any employee worked. (Liggins Decl. ¶¶ 5, 9.) According to Defendant's records, the others present at the training were Victor Joseph, Juliet Lowers, Helen Thomas and Jackie Edwards. ( Id. ¶ 17-18.) These other employees are all African-American and Joseph, Lowers and Thomas are also Trinidadian. ( Id. ¶ 18.) During the training, Plaintiff complained of being denied full access to Kronos timekeeping software by Christine Kay, Director of Long Term Care at Rutland. (Def. 56.1 ¶¶ 66-67; Pl. Opp'n Decl. ¶ 5.) Plaintiff observed that all other trainees were able to do active work on their computers while Plaintiff could only view her computer. (Pl. Opp'n Decl. ¶ 5, Ex. 2.) Plaintiff alleges that she interrupted the training to ask why she was the only one not given full access; Kay responded, "because that's what I want you to have." (Pl. Opp'n Decl. ¶ 4.) According to Plaintiff, after several moments she asked to be excused, left and immediately informed Genna Moore, then-Director of Nursing, about the incident. ( Id. ) Moore later discussed the incident with Earnest Liggins, then-Human Resources Director, and told him that it was "outrageous" to deny Plaintiff full access to Kronos because it was required as part of Plaintiff's job. (Moore Decl. ¶ 9, annnexed as Ex. 6 to Pl. Opp'n Decl.) On November 5, 2007, Plaintiff emailed Liggins, describing the incident and informing him that she felt "humiliated[, ] degraded and even discriminated against" at the hands of Kay based on an "act of segregation." (Pl. Opp'n Decl. ¶¶ 4-5; Def. Mem. 13.) According to Defendant, Liggins responded via email and made clear that "[o]ur sole intention was to provide some individuals with a basic understanding of the Kronos time and attendance system." (Hoey Jan. 10, 2013 Decl. Ex. 2.) Liggins spoke with Plaintiff over the telephone, informing her that her position did not require full access to Kronos. (Liggins Decl. ¶ 42.) Plaintiff did not raise the Kronos issue with Liggins again. ( Id. ¶ 43.)
Plaintiff alleges that a few days after she sent Liggins the email, she and her union delegate went to see John McKeon, Vice President of Human Resources, to complain about Kay's behavior. (Def. 56.1 ¶ 67; Compl. 7-8.) McKeon told her not to worry about her Kronos access because they were in the process of upgrading Kronos to 6.0 and Plaintiff would be trained later on the new system. (Compl. 7.)
In December 2007, Moore was told by Mary Ann Rose, Vice President of Human Resources, that she would never approve Plaintiff to fill the staffing manager position should it ever become available. (Pl. Opp'n Decl. ¶ 5, Ex. 2.) That same month Plaintiff received stationery from Rose. ( Id. ¶¶ 6-7, Exs. 7-8.) Plaintiff alleges that this surprised her because several times, in prior years, Rose had given Plaintiff a card with a monetary gift for Plaintiff's children. ( Id. ¶¶ 6-7; Moore Decl. 7:23-8:3.)
ii. Plaintiff's Promotion to Staffing Manager
In or about April 2008, the staffing manager at Rutland, Valerie Bryant, retired after more than twenty years of service. (Def. 56.1 ¶ 11.) After Bryant's departure, the human resources department revised the staffing manager position to require a bachelor's degree. ( Id. ¶ 12.) The staffing manager position was a salaried, exempt, non-unionized position. ( Id. ¶ 29.) Plaintiff applied for the staffing manager position, ( Id. ¶ 19; Pl. Opp'n Decl. Ex. 14), and both McKeon and Rose approved Plaintiff's promotion, (Def. 56.1 ¶¶ 15, 21). Plaintiff was promoted to staffing manager in May 2008, ( id. ¶ 20), despite not having a bachelor's degree, (Pl. Dep. 97:11-15). Plaintiff's promotion included a six month probationary period. (Pl. Opp'n Decl. Ex. 17.)
As staffing manager, Plaintiff was responsible for creating new employee schedules, monitoring absenteeism and lateness, and ensuring adequate staffing coverage for Rutland at all times. (Def. 56.1 ¶ 24.) In addition, Plaintiff scheduled extra shifts, including overtime shifts, for CNAs at Rutland. (Pl. Dep. 70:5-72:22.) The parties agree that CNAs typically work parttime and depend on extra shifts to earn additional income. ( Id. at 84:6-24; McKeon Decl. ¶ 19.) Plaintiff also had a role in assigning CNAs to work in different units. (Pl. Dep. 242:24-243:24; Edouard Decl. ¶ 11; McKeon Decl. ¶ 20.) According to Plaintiff, all CNAs were trained to work in all units. (Pl. Opp'n Decl. ¶ 25.) However, Defendants argue that some units were more desirable than others. (Edouard Decl. ¶ 12; McKeon Decl. ¶ 21.)
Following her promotion, Plaintiff alleges that Kay began to harass Plaintiff by issuing bi-weekly reports highlighting Plaintiff's payroll errors. (Pl. Opp'n Decl. Ex. 18; Pl. Dep. 332:1-333:3.) In addition, Plaintiff continued to have only limited access to Kronos, a program which Plaintiff alleges she needed to access on a daily basis as a staffing manager. (Pl. Opp'n Decl. Ex. 56.) According to Defendant, Plaintiff - as a staffing clerk and as staffing manager - did not have timekeeping responsibilities and, therefore, never needed access to Kronos. (Liggins Decl. ¶¶ 21-22.)
In September 2008, an email exchange prompted by Kay and which included Moore, Liggins, Rose and Plaintiff, took place regarding Plaintiff's desire to schedule compensation time for herself given the extra hours she had been working. (Pl. Opp'n Decl. ¶ 21, Ex. 19.) Plaintiff was informed that any compensation time must be scheduled within the same pay period as the additional hours worked. ( Id. ) Plaintiff also alleges that all exempt and non-union employees are given the opportunity to be compensated for all their extra hours worked through an internal agency called At the Moment, ("ATM"). (Pl. Opp'n Decl. ¶ 26.) According to Plaintiff, when she requested access to ATM from Rose, Rose stated that she was not comfortable with "Plaintiff working through [ATM] for fear of theft." ( Id. ) Plaintiff also alleges that she spoke with McKeon about compensation; McKeon agreed that compensation through ATM "would be the ideal thing to do, " but he failed to follow through. ( Id. ) McKeon declares that he told Plaintiff that as an exempt worker, she was not entitled to compensation for overtime, (McKeon Decl. ¶ 26), and, in any event, Plaintiff was not eligible for ATM, ( id. ¶ 28).
On October 2, 2008, Plaintiff submitted a written complaint to the human resources department concerning various incidents involving her managers at Rutland. (Def. 56.1 ¶ 69; Pl. Opp'n Decl. ¶ 28, Ex. 28.) In the letter addressed to McKeon, Plaintiff identifies the Kronos Training Incident, the error reports generated by Kay, the degree requirement added to the staffing manager position and the extra hours worked without compensation of any kind. (Pl. Opp'n Decl. Ex. 24.) Plaintiff expressly stated that she believed the enumerated incidents were in violation of Title VII. ( Id. )
b. Defendant's Investigation into Plaintiff's "Su-Su"
In or about August 2009, the human resources department received complaints that Plaintiff was running a savings collective, known as a "su-su, " involving Kingsbrook employees. (Def. 56.1 ¶ 31.) A "su-su" involves the pooling of money from different individuals, which pool of money is then paid out on a weekly or bi-weekly basis to one of the individuals involved until each person receives their "hand." ( Id. ¶ 32; Pl. Dep. 38:2-20.) According to Plaintiff, the practice is traditionally West Indian. (Pl. Dep. 38:2-5; Pl. Opp'n Mem. 11.) Plaintiff ran a "susu" in August of 2009. (Pl. Dep. 39:20-22.) Plaintiff cannot recall how many "su-su" collections she ran during her employment with Defendant - more than one and "probably" more than ten. ( Id. at 40:19-24; 43:2-5.) Plaintiff's "su-su" involved Kingsbrook employees, some of whom she could schedule for overtime. (Pl. Dep. 70:6-20, 212:14-19, 478:22-479:1.)
According to Defendant, it received complaints that Plaintiff would assign shifts based on participation in her "su-su" and began an investigation as a result of the complaints. (Def. 56.1 ¶ 34; McKeon Decl. ¶¶ 32-33.) Defendant provides evidence of only two complaints. One is anonymous and bears a stamp indicating it was received on August 19, 2009, sixteen days after Plaintiff's suspension. (McKeon Decl. ¶ 32, Ex. 5.) The other identified complaint was made "sometime in the middle of 2009" by Candace Browne, then-Benefits Coordinator at Kingsbrook, to McKeon, after a conversation Browne had with another Rutland employee who informed Browne of Plaintiff's "su-su." (Browne Decl. ¶¶ 4-5.) Effective August 3, 2009, Plaintiff was suspended with pay pending the outcome of Kingsbrook's investigation into her "su-su." (Def. 56.1 ¶ 35.) McKeon interviewed several Rutland employees who confirmed seeing Plaintiff collect and distribute money during working hours. ( Id. ¶ 36.) Plaintiff alleges that no employee interviews took place while she was on suspension, (Pl. Decl. ¶ 34), but instead were all conducted subsequent to Plaintiff's termination, ( id. ).
On August 12, 2009, McKeon interviewed Plaintiff regarding the "su-su." (Def. 56.1 ¶ 39.) According to Defendant, Plaintiff admitted to running a "su-su" during work hours on Kingsbrook's premises involving employees, including CNAs working at Rutland. ( Id. ¶ 40.) Plaintiff told McKeon that management was aware of her "su-su" and that such activity was "rampant" at Kingsbrook. ( Id. ¶ 42.) According to Plaintiff, she never admitted that the "su-su" collection occurred on Kingsbrook property. (Pl. Opp'n Decl. ¶ 36; Pl. Dep. 210:15-17.) Plaintiff also denies discussing management's awareness of her "su-su". (Pl. Opp'n Decl. ¶ 37.) McKeon informed Plaintiff that such conduct was a violation of Kingsbrook Conflict of Interest and "Non-solicitation policies." (Def. 56.1 ¶ 43.) On August 14, 2009, Defendant received notes from two different Kingsbrook employees admitting to their participation in Plaintiff's "susu." (Pl. Opp'n Decl. ¶ 32, Exs. 30-31.)
According to Defendant, McKeon and Rose subsequently decided to terminate Plaintiff's employment based on Plaintiff's admission. (Def. 56.1 ¶ 45.) Plaintiff's termination was effective September 11, 2009. ( Id. ¶ 47.) Plaintiff alleges that she was constructively terminated by Kay on August 3, 2009, the date of her suspension. (Pl. Opp'n Decl. Ex. 28.)
i. Kingsbrook's Offer to Reinstate Plaintiff
Prior to her promotion to staffing manager, Plaintiff was a member of 1199/SEIU, Health Care Workers East. (Def. 56.1 ¶ 55.) At the time of Plaintiff's termination, Lytton Perez was employed by the Union as a Union Organizer at Kingsbrook, ( Id. ¶ 56), and Greg Williams was employed by the Union as a Labor Relations Manager at Kingsbrook, ( Id. ¶ 58). In September 2009, shortly after Plaintiff's employment was terminated, McKeon discussed with Perez and Williams reinstating Plaintiff to a CNA or Patient Care Technician ("PCT") position, both of which are unionized positions. ( Id. ¶ 60.) Williams informed McKeon that Plaintiff only wished to be reinstated to the staffing manager position. ( Id. ¶ 64.) Plaintiff alleges that she never received an offer of reinstatement. (Pl. Opp'n Decl. ¶ 43.) The staffing manager position has since been eliminated. (Def. Reply Mem. 17; Rose Dep. 35:3-11; Kay Dep. 38:20-39:7.)
On August 19, 2009, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") regarding Defendant's alleged discriminatory conduct. (Pl. Opp'n Decl. Ex. 52.) The EEOC issued a right to sue letter on April 27, 2011. (Compl. ¶ 32.)
a. Standard of ...