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Babarinsa v. Kaleida Health, Buffalo Gen. Hosp.

United States District Court, W.D. New York

September 30, 2014


Decided September 29, 2014

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For Sharon Babarinsa, Plaintiff: Harvey P. Sanders, LEAD ATTORNEY, Sanders & Sanders, Cheektowaga, NY.

For Kaleida Health, Buffalo General Hospital, Defendant: Meghan M. Lynch, LEAD ATTORNEY, Amy L. Hemenway, Julia Green Sewruk, Harter Secrest & Emery LLP, Rochester, NY.

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WILLIAM M. SKRETNY, Chief Judge, United States District Court.


Plaintiff Sharon Babarinsa commenced this action against her employer on December 15, 2011. In an Amended Complaint filed March 1, 2012, Babarinsa alleges she was discriminated against based on her race and retaliated against for filing a complaint of discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et seq. (" Title VII" ) and the New York State Human Rights Law, N.Y. Exec. Law § § 290 et seq. (" HRL" ). The violations are alleged to have occurred from April 2009 to early 2011.

Presently before this Court is Defendant's Motion for Summary Judgment. The motion is fully briefed and the Court has concluded there is no need for oral argument. For the reasons stated below Defendant's motion will be granted and Plaintiff's claims dismissed in their entirety.


A. Facts

The undisputed facts of this case are as follows.

Kaleida Health operates a number of healthcare facilities in Western New York including Buffalo General Medical Center, formerly known as Buffalo General Hospital.[1] Plaintiff, an African American, commenced employment at Buffalo General in 1982, and her current position is Registered Nurse (" RN" ) on 15 South. In that position, Plaintiff is responsible for assessing and identifying patient needs, developing and implementing patient care plans in coordination with other medical professionals, administering routine tests and medications as prescribed by treating physicians, and coordinating care with family members and others as authorized by the patients. The RN position is covered by a collective bargaining agreement between Kaleida Health and Nurses United CWA (the CBA).

For each shift, Defendant assigns a RN as charge nurse, responsible for the overall operation and flow of the unit during that shift. Among other things, the charge nurse presides over multidisciplinary rounds and provides up to date information on each patient on the unit to various care providers. The charge nurse also updates patient charts to ensure adherence to physician orders, makes patient assignments to the RNs and other staff on the

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shift, and must communicate patient information to appropriate staff, including the oncoming shift. The nurse in charge is not required to take patient assignments. To be qualified for charge nurse duty, a RN must complete charge nurse training and demonstrate the required competencies. The CBA provides that:

The charge nurse assignment will be rotated evenly among all qualified/competent and trained nurses. Continuity of patient care and consistency of assigning consecutive days of charge will be taken into account.

Docket No. 27-8 at 9.

Plaintiff was and is qualified to perform charge duties and has periodically served in that role. Plaintiff also periodically served as preceptor to new RNs assigned to her unit. Unit managers typically prepare the work schedule, including duty assignments, on a monthly basis for the following month. Charge nurses earned an additional $1.50 per hour prior to June 2009, and an additional $2.00 per hour thereafter. Nurses serving as preceptors during the relevant time period earned an additional $2.50 per hour.

During the relevant time period--i.e. April 2009 to early 2011--Plaintiff reported to Nurse Manager Karen Carlson, except for a period from early September 2010 to mid-January 2011, when Stella Koginos was Nurse Manager on the unit. Managers, including nurse managers, typically are responsible for addressing violations of Defendant's policies by the employees they supervise. Defendant's expectations for employee conduct are set forth in a Standards of Personal Conduct Policy. Depending on the severity of the conduct, corrective actions may include verbal counseling and re-education, written warnings, or termination. When a manager contemplates corrective action above the level of a verbal warning, he or she must first consult with the Human Resources Department to ensure the discipline is commensurate with the severity of the misconduct and consistent with corrective actions applied to other employees who engaged in similar violations. Ms. Carlson monitored Ms. Koginos during her brief tenure as Nurse Manager, but did not review her disciplinary recommendations or become involved in her disciplinary decisions.

While Plaintiff was serving as charge nurse, on June 21, 2009, she was involved in a verbal altercation with Flora Pattacciato, a RN working on the unit, regarding the patient assignments Plaintiff had made. The altercation was heard by staff and patients, and Defendant considered the incident disruptive and unacceptable. Rashaun Tubbins, an African American member of Defendant's Human Resources staff, investigated the matter. After interviewing and reviewing written statements from the participants and witnesses, Mr. Tubbins consulted with Ms. Carlson. They concluded that Plaintiff and Ms. Pattacciato had violated Defendant's Standards of Personal Conduct Policy and expectations for acceptable behavior, and agreed that both employees would be administered verbal warnings and required to attend a conflict resolution class. In addition, Plaintiff was removed from charge assignments until she completed the conflict resolution class and an additional non-defensive communication class. She was not removed from preceptor assignments. Ms. Pattacciato, who was not eligible to perform charge duty, was not required to attend the non-defensive communication class. The warnings were given on June 25, 2009, and Plaintiff filed a union grievance the same day. Verbal warnings remain in an employee's file for six months, after which they are removed and may not be used as a basis for further progressive discipline.

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During the period the verbal warning remained in Plaintiff's file, Ms. Carlson received complaints from two RNs regarding Plaintiff. First, a new RN that Plaintiff was precepting complained that Plaintiff was not an effective team leader, often spoke down to her, and made her feel uncomfortable. In a written complaint, another RN stated that Plaintiff yelled at and argued with nurse aides, and complained about other staff members in the presence of patients and their family members. This conduct could have provided a basis for progressive discipline. Instead, Ms. Carson addressed the concerns with Plaintiff informally, where she emphasized the importance of teamwork, avoiding disruptive conflicts, and providing constructive feedback in an appropriate setting. Plaintiff denied that she had engaged in unacceptable conduct.

On or about October 1, 2009, Ms. Carlson found three small bags of marijuana in a conference room on the unit. She asked the staff members who were in the conference room at the time if the bags were theirs or if they knew to whom they belonged. While Ms. Carlson was making those inquiries, Plaintiff entered the conference room and she, too, was asked if the bags belonged to her. Plaintiff denied they did, and she concedes that was the last she heard on the matter.

Defendant received further complaints about Plaintiff on January 29, February 1, and February 6, 2010. Mr. Tubbins and Ms. Carlson conferred and concluded that Plaintiff had violated Defendant's standards in each instance by, respectively: (1) failing to provide prescribed pain medication to two patients despite their requests; (2) loudly sharing private information about a patient at the front desk and also with the patient's roommate; and (3) pressing another employee to provide her a statement about an incident that had occurred seven months prior and did not involve Plaintiff. They issued a written warning to Plaintiff on February 16, 2010 and required her to review and sign off on Defendant's Confidentiality, Standards of Personal Conduct, and Non-Harassment policies. Written warnings remain in an employee's file for twelve months.

Defendant assesses employee performance on an annual basis, usually around their employment anniversary date. Managers are responsible for assessing the employees they supervise in four core areas--quality of work, service excellence, teamwork/communication, and accountability/commitment. An employee's performance of essential job functions is rated as either meeting expectations or in need of improvement. Human Resources does not participate in drafting employee assessments, but does review them for fairness and consistency. Employees can review and comment on their assessments, and are encouraged to address concerns with their managers. If an employee disagrees with the manager's performance assessment, he or she can take the matter to Human Resources for review.

On February 26, 2010, less than two weeks after Plaintiff was issued the written warning, Ms. Carlson administered Plaintiff's 2009 annual assessment. Overall, she rated Plaintiff as meeting all competencies, but assessed her as needing improvement in the areas of service excellence and teamwork/communications. Ms. Carlson elaborated:

Sharon is competent to perform her RN competency and job description. Needs improvement on building team relationships. Needs to improve on the effectiveness of communication and interaction with peers and others.

(Docket No. 27-10.) Plaintiff noted that she did " not agree with negative comments." (Id.)

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On November 21, 2010, while Plaintiff was charge nurse, two sets of medication orders were not transcribed. As previously noted, charge nurses are responsible for reviewing and updating patient charts to ensure that physician orders are properly entered and adhered to. Ms. Koginos, who was then the unit's Nurse Manager, verbally counseled Plaintiff, on November 23, 2010, regarding Defendant's expectation that orders be transcribed in a timely fashion. That same day, Ms. Koginos received an email from Dr. Sanford Levy stating that Plaintiff, who was assigned to charge duty on that day as well, was not prepared for interdisciplinary rounds and could not answer questions relating to patient care and status. Ms. Koginos removed Plaintiff from charge assignment for a period of approximately two months, until she left the Nurse Manager position in or about mid-January 2011.

Ms. Carlson, who had supervised Plaintiff for approximately eight months during the relevant period, administered Plaintiff's 2010 annual review on February 11, 2011. She assessed Plaintiff as " meets requirements" on all measures, noting that " Sharon has improved communication skills while in charge." (Docket No. 27-11.) Plaintiff signed the review without comment.

Plaintiff concedes that Defendant maintains workplace policies expressly prohibiting discrimination, harassment, and retaliation; that the policies are distributed to employees and otherwise made available to them, are incorporated into collective bargaining agreements, and include procedures for reporting prohibited conduct; that Defendant's Human Resources Department promptly investigates internal complaints of discrimination or harassment, and, if it is determined that the non-discrimination policies have been violated, Defendant takes prompt corrective action.

Human Resources personnel--including Mr. Tubbins and former HR Manager Brian Anderson, who also is African American--reviewed Plaintiff's grievances and complaints. On April 16, 2009, Plaintiff filed a union grievance alleging that charge nurse assignments on her unit were not equally distributed between all interested RNs. Mr. Tubbins met with Plaintiff, who then complained that Caucasian RNs received more charge assignments than she did. After investigating the matter, Mr. Tubbins found no evidence to suggest that Caucasians on the unit received more charge assignments than African Americans.

On June 25, 2009, Plaintiff filed a grievance alleging that the verbal warning she had received that day was unjust and requesting it be removed from her file. She did not claim in the grievance that the warning was issued because of her race or was retaliatory. Although the warning was due to remain in her file until December 25, 2009, Ms. Carlson agreed to its removal effective November 23, 2009, after Plaintiff completed the required classes and Ms. Carlson had the opportunity to observe whether her communication skills had improved. Ms. Pattacciato's warning remained on file for the full six month period.

Plaintiff filed a charge of discrimination with the United States Equal Opportunity Commission (" EEOC" ) on December 8, 2009. There, she alleged that Defendant discriminated against her by giving non-Black employees more frequent charge nurse assignments and that, after she filed her April 16, 2009 grievance on the matter, Defendant retaliated against her by subjecting her to unwarranted discipline, false accusations, harassment, and removing her from charge nurse duty.

On March 8, 2010, Plaintiff filed a grievance alleging that the ...

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