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Jacob v. Nysarc, Inc.

United States District Court, S.D. New York

December 1, 2014

IISHA T. JACOB, Plaintiff,



On March 11, 2013, Plaintiff Iisha T. Jacob ("Jacob" or "Plaintiff"), proceeding pro se and in forma pauperis, filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and, construing Plaintiff's pro se claims liberally, under New York Labor Law Section 215, against NYSARC, Inc., New York City Chapter ("AHRC NYC" or "Defendant").[1] Construing her claims in the strongest manner possible, Plaintiff alleges employment discrimination and retaliation based on her national origin, which is American. Defendant responds that any actions it took against Plaintiff during her tenure with it were warranted by her conduct, and were the product of neither discriminatory nor retaliatory motive. Defendant has moved for summary judgment on all of Plaintiff's claims. For the reasons set forth in the remainder of this Opinion, Defendant's motion is granted in its entirety.


A. Factual Background

1. Plaintiff's Employment with AHRC NYC

On or about December 21, 2011, Plaintiff began her employment with Defendant AHRC NYC. (Def. 56.1 ¶ 6). Defendant is a not-for-profit human service organization that annually serves more than 11, 000 individuals with intellectual and developmental disabilities by providing a wide range of educational, residential, clinical, medical, and recreational services. ( Id. at ¶ 1). Plaintiff was hired as a Direct Support Professional ("DSP") in Defendant's Home Care Department on a per diem basis. ( Id. at ¶ 6). Plaintiff's per diem status meant she was not a regular, full-time employee, but instead would receive work assignments based on availability and changing needs of AHRC NYC-affiliated residences throughout New York City. ( Id. at ¶¶ 7-9).[3] Either Defendant would reach out to Plaintiff to notify her of available shifts, or Plaintiff could call to inquire about available shifts. ( Id. at ¶ 8). As a DSP, Plaintiff's responsibilities included assisting the individuals in her assigned facility with daily living, skills training, socialization, and recreational activities. ( Id. at ¶ 12).

Given the vulnerability of many of the individuals it serves, Defendant has developed a series of policies and procedures that focus on the well-being of those individuals. (Def. 56.1 ¶¶ 10-18). These materials are provided to new hires and set expectations for DSPs like Plaintiff, who are required to "work with individuals in accordance with their individualized plan of care, in carrying out professionally developed activities, experiences or therapies in order to fulfill each individual's optimal ability." ( Id. at ¶¶ 10, 13). Also according to these policies and procedures, DSPs must act as advocates for the individuals, must notify Defendant if they suspect the workplace may endanger the health or safety of an individual, and must not leave before the end of a work schedule. ( Id. at ¶¶ 14, 16-17). Moreover, these materials identify "[e]ndangering the welfare of the individual by acting in an abusive or neglectful manner" as grounds for immediate termination. ( Id. at ¶ 18). Plaintiff was provided with these materials upon commencement of her employment with Defendant. ( Id. at ¶ 10).

2. Plaintiff's First Disciplinary Incident

During Plaintiff's 14 months of per diem employment with Defendant, she was the subject of multiple complaints from AHRC NYC-affiliated residences about her work performance, including three complaints that led to disciplinary action. ( See Def. 56.1 ¶¶ 19-36). The first time Plaintiff was subject to disciplinary action arose out of an incident on February 20, 2012, only a few months into her employ. ( Id. at ¶ 20). An affiliated residence, the Kraus facility, submitted a complaint regarding Plaintiff's performance during her assigned overnight shift, as well as a request that she not be reassigned to the facility. ( Id. ). Specifically, the facility reported that they could not find Plaintiff in the residence for a period of time, and that when they did find her, she was located near the rear exit with the lights out, clutching her coat and bag. ( Id. ). The facility also reported that Plaintiff had been assigned to shower one individual during her shift, but apparently did not do so because a member of the staff discovered that individual unwashed and soiled with feces. ( Id. ). Additionally, Plaintiff had failed to follow AHRC NYC procedure, which required her to complete a form confirming her orientation at that facility. ( Id. ).

Plaintiff adds some additional context to this incident. She claims that upon her arrival at the facility - where the regular staff, her coworkers, were of "different nationalities" - she went to ask the staff if they needed assistance with anything, such as cleaning duties. (Jacob Dep. 146). One of the three staff working that night declined her help, and apparently told her to "go downstairs and rest." ( Id. ). Plaintiff says that rather than do that, which she believed would get her in trouble, she "kept going around checking up on the individuals, keeping myself busy." ( Id. ). Plaintiff does not dispute that she did not shower the individual she was assigned to shower, that she was found with her personal belongings near the exit, or that she failed to fill out the requisite paperwork for the facility. ( Id. ).

Kent Willingham, who is the Assistant Director of Defendant's Home Care Department and is of the same national origin as Plaintiff, met with Plaintiff the next day to discuss the Kraus facility complaint. (Def. 56.1 ¶¶ 21-22). At that meeting, Willingham warned Plaintiff that future performance issues could result in further disciplinary action, including termination. ( Id. at ¶ 21).

3. Plaintiff's EEOC Complaint

On or about December 13, 2012, Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (the "EEOC"). (Def. 56.1 ¶ 47). Defendant received a notice as a result of this charge indicating that the only alleged discrimination was "retaliation" in violation of Title VII; that the issues involved "assignment, terms/conditions, wages"; and that the latest act of discrimination occurred on November 12, 2012. ( Id. at ¶ 49). Defendant was provided with no other information concerning the bases for Plaintiff's claims.[4] On February 1, 2013, Defendant received a copy of the Dismissal and Notice of Rights form (containing Plaintiff's Right to Sue Notice) sent to Plaintiff by the EEOC one week earlier; the form indicated that, "[b]ased upon its investigation the EEOC is unable to conclude that the information obtained establishes violations of the statutes." ( Id. at ¶ 52).

4. Plaintiff's Second Disciplinary Incident

On January 7, 2013, Plaintiff's second incident resulting in disciplinary action occurred at another AHRC NYC-affiliated residence, Bloomberg 3C. (Def. 56.1 ¶ 23). That day, Plaintiff was 30 minutes late for her assigned shift and failed to follow Defendant's lateness protocol (which required her to advise that she would be late); once at her shift, Plaintiff used the facility's speakerphone in an inappropriate manner, and deliberately ignored her supervisor's requests regarding her use of the telephone. ( Id. at ¶ 24).[5] The supervisor requested that Plaintiff clock out and leave given her inappropriate conduct, and also put in a request that Plaintiff not be reassigned to that facility. ( Id. at ¶ 25). On or about January 16, 2013, Defendant provided Plaintiff with a second warning as a result of this incident. ( Id. at ¶ 23).[6]

5. Plaintiff's NYDOL Complaint

On or about January 28, 2013, Defendant received notice of a complaint Plaintiff had filed with the New York Department of Labor (the "NYDOL"). (Def. 56.1 ¶ 54). In that complaint, Plaintiff contended that Defendant failed to pay her wages for certain hours worked in October and November of 2012. ( Id. at ¶¶ 53, 55). Although Defendant believed that it had paid Plaintiff for all reported hours, because the complained-of time period had seen Defendant's business operations interrupted by Hurricane Sandy, the possibility existed that the disruption had affected the accurate reporting of Plaintiff's hours to headquarters. ( Id. at ¶ 56). Given this possibility, on February 8, 2013, Defendant paid Plaintiff $257.73, less required withholdings, which was the amount claimed in her NYDOL complaint. ( Id. at ¶ 57).

6. Plaintiff's Third Disciplinary Incident

On February 15, 2013, Plaintiff's third incident meriting disciplinary action occurred at the AHRC NYC-affiliated residence named Manhattan IRA. (Def. 56.1 ¶ 28). That day, Plaintiff clocked out the minute her shift ended at 11:00 p.m., leaving the facility seven minutes before her replacement arrived, despite being aware that such conduct constituted job abandonment under AHRC NYC's policies. ( Id. at ¶¶ 29-35). Plaintiff did not verify that the appropriate number of staff were present at the residence, as she was supposed to do. ( Id. at ¶ 36). On or about February 16, 2013, the manager of the Manhattan IRA submitted a "Significant Event Report" to Defendant describing Plaintiff's misconduct and requesting that Plaintiff not be reassigned to that facility. ( Id. at ¶¶ 28, 37).

Upon receipt of the report, Willingham placed Plaintiff on inactive status pending investigation of the incident; this meant that Defendant would not assign Plaintiff to shifts in any other facilities during the investigation. (Def. 56.1 ¶ 38). Once Willingham conducted an investigation and confirmed that Plaintiff had indeed left before her replacements arrived, Willingham recommended that Defendant terminate Plaintiff's employment. ( Id. at ¶ 39). Willingham discussed this recommendation with Tracy-Ann Adams, who is the Director of both Defendant's Home Care and Human Resources Departments, and who is also of the same national origin as Plaintiff. ( Id. at ¶¶ 40, 44). They determined that Plaintiff's offense was very serious - not only had she abandoned her job in violation of AHRC NYC's policies and procedures, but also, critically, she had left the Manhattan IRA without proper staff coverage, jeopardizing the safety and welfare of the residents. ( Id. at ¶ 41). They agreed that, given the seriousness of Plaintiff's offense and her prior disciplinary history, termination was appropriate. ( Id. ). Moreover, they noted, this was the fifth facility that had requested Plaintiff not be reassigned to shifts at that facility. ( Id. at ¶ 42).[7] Defendant terminated Plaintiff's employment effective March 6, 2013. ( Id. at ¶ 43).

7. Plaintiff's Lawsuit and Claims of Discrimination and Retaliation

In her Amended Complaint, Plaintiff alleges that Defendant discriminated against her because of her national origin of "being born and raised from America and not from a foreign country, " and that the organization retaliated against her for filing her EEOC and NYDOL complaints. (Am. Compl. 3). Plaintiff has identified as the bases of her claims that Defendant: (i) "turn[ed] [her] down from work when work was available"; (ii) "fail[ed] to inform [her] about termination, investigation, and job abandonment allegations when [she] was calling for work"; (iii) terminated her employment; and (iv) used her social security number "to punch [her] in for days [she] ha[d] not worked." ( Id. ).

Because, as discussed in note 2, supra, the Court has conducted an independent examination of the record before it in consideration of this pro se plaintiff's arguments, it turns to Plaintiff's deposition in search of further factual support for her claims. In her deposition, when asked to explain the bases of her claims, she offered the following as examples of discrimination based on her and her coworkers' respective national origins:

• Plaintiff recalled, "I would hear a lot of Caribbean staff would say, well, we are Caribbean and we are not American. That's what I ...

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