United States District Court, S.D. New York
GREGORY H. WOODS, District Judge.
Lenny Encarnacion brings this case against her former employer, claiming discriminatory treatment and discharge, unequal pay, a hostile work environment, and retaliatory treatment and discharge under Title VII, as well as analogous claims under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"). Plaintiff's complaint also includes claims under 42 U.S.C. § 1985 and 1986, and a number of additional state law claims.
Plaintiff filed this case in New York State Supreme Court on April 18, 2011. See Notice of Removal, Dkt. No. 1. Defendants removed the case to federal court on June 2, 2011. Id. After nearly three years of desultory litigation, the case was assigned to this Court on April 3, 2014. Defendants moved for summary judgment on October 7, 2014. Dkt. No. 116. Plaintiff filed her opposition to the motion for summary judgment on October 29, 2014, and defendants replied on November 5, 2014. Dkt. Nos. 125, 133. For the reasons outlined below, defendants' motion is granted in part and denied in part.
Defendant Isabella Geriatric Center, Inc. is a senior housing and elderly care facility located in the Washington Heights neighborhood of New York City. (SUF 1.) Defendant Eileen Casey is the Vice President of Human Resources at Isabella. (SUF 4.) Defendant Mariam Paul is Isabella's Director of Nursing. (SUF 3.) Defendant Edwin Santiago was an Environmental Service Worker at Isabella until his voluntary resignation in 2012. (SUF 5.) Matthew Kochuplamootil, whose conduct is at issue in some of plaintiff's claims, was employed as a Certified Nurse's Assistant at Isabella from approximately 1995 until his termination in 2005. (SUF 9, 22.) Mr. Kochuplamootil is not a party to this case. Plaintiff Lenny Encarnacion began working as a Certified Nurse's Assistant at Isabella in January 2002. (SUF 6.) Ms. Encarnacion is a union employee subject to a collective bargaining agreement through 1199 SEIU United Healthcare Workers East. (SUF 7.)
In late 2003 or early 2004, Ms. Encarnacion filed a written complaint with Ms. Casey in Isabella's Human Resources office, alleging that Mr. Kochuplamootil had sexually harassed her. (SUF 9, 14). When Ms. Casey investigated the incident, Mr. Kochuplamootil admitted harassing Ms. Encarnacion. (SUF 15.) Ms. Casey gave Mr. Kochuplamootil a verbal warning. (SUF 16, 17.) Ms. Casey testified in a deposition that she also told Ms. Paul to keep Mr. Kochuplamootil and Ms. Encarnacion separated during their shifts. (SUF 20.) Despite these measures, Mr. Kochuplamootil harassed Ms. Encarnacion again in early 2005. (SUF 21.) Ms. Encarnacion filed another complaint with Ms. Casey, and Isabella fired Mr. Kochuplamootil on February 5, 2005. (SUF 21, 22.)
Ms. Encarnacion claims that Isabella, and in particular Ms. Paul, afforded nurses of Indian descent preferential treatment. (SUF 25.) She claims that they alone were allowed to speak their native language at work, that they were given preferential work assignments, and that some were allowed to work as Licensed Practical Nurses before earning their state license - a status the parties refer to as "working on permit." (SUF 25.) Ms. Encarnacion claims that Ms. Paul began mistreating her following the incidents with Mr. Kochuplamootil - "continually assigning [Ms. Encarnacion] to different floors, " having "other nurses single [her] out by checking over every detail of her work, " and "refusing to meet with [her] when [she] had issues to discuss." Plaintiff's October 2014 Affidavit ("October Affidavit"), Dkt. No. 127-5, at 2.
In July 2008, Ms. Encarnacion completed the coursework necessary to work as a Licensed Practical Nurse ("LPN"). (SUF 30; October Affidavit, Dkt. No. 127-5, at 9.) Shortly thereafter, she verbally asked Ms. Paul if she could work "on permit, " that is, be allowed to work as an LPN pending receipt of her state license. (SUF 36.) Ms. Paul denied Ms. Encarnacion's verbal request to work on permit. (SUF 36.) Ms. Encarnacion does not claim, nor does she offer any evidence, that she completed any paperwork, or filed anything in writing - with Isabella or with the state of New York - in conjunction with her request to work on permit. See Plaintiff's July 2014 Deposition ("July Deposition"), Dkt. No. 127-2, at 4. In January 2010, having passed the New York state licensing examination and an examination administered by Isabella, as well as completing a period of training, plaintiff began working as an LPN at Isabella. (SUF 42.)
Ms. Encarnacion alleges that sometime in December 2009, Mr. Santiago exposed himself to her while the two were working at Isabella. (SUF 54.) Although she claims to have a photo documenting the incident, Ms. Encarnacion did not immediately report the incident to Isabella's Human Resources Department. (SUF 56, 76.) Mr. Santiago denies that the photo in question is of him. (SUF 65-66.) In early 2010, Mr. Santiago heard that Ms. Encarnacion was telling others at Isabella about the alleged incident and accompanying photo, and he met with Ms. Casey to file a complaint against Ms. Encarnacion. (SUF 69-71.) On Februrary 5, 2010, Ms. Casey met with Ms. Encarnacion regarding Mr. Santiago's complaint that Ms. Encarnacion was making false statements about him. (SUF 76.) Ms. Encarnacion responded, telling Ms. Casey that Mr. Santiago had exposed himself to her in December 2009. (SUF 76.) Ms. Encarnacion also filed a criminal complaint against Mr. Santiago, alleging that he had exposed himself to her on multiple occasions. (SUF 55.) In response to the criminal complaint, Mr. Santiago was arrested and ultimately pled guilty to disorderly conduct. (SUF 79, 86.)
On April 25, 2010, Ms. Encarnacion left Isabella on her lunch break without turning in the key to the narcotics cabinet on her assigned floor. (SUF 88.) While away on her break, she was involved in a car accident. (SUF 89.) Later that day, Ms. Encarnacion flew to the Dominican Republic because her boyfriend's mother had died. (SUF 90.) Isabella fired Ms. Encarnacion on April 26, 2010 for alleged violations of company policy, including leaving the premises with her narcotics key. (SUF 91.)
II. APPLICABLE LEGAL STANDARDS
a. Summary Judgment Standard
Defendants are entitled to summary judgment on a claim if they can show that "there is no genuine dispute as to any material fact and that [defendants are] entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " while a fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To defeat a motion for summary judgment, plaintiff "must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). "[M]ere speculation or conjecture as to the true nature of the facts" will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citations and internal quotations omitted). Nor will wholly implausible alleged facts or bald assertions that are unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986) (citing Matsushita, 475 U.S. at 585-86). The issue of fact must be genuine - plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.
In determining whether there exists a genuine dispute as to a material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The Court's job is not to "weigh the evidence or resolve issues of fact." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002). Rather, the Court must decide whether a rational juror could find in favor of the non-moving party. Id.
b. Statutes of Limitations
It is well established that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Claims based on discrete acts - e.g., termination, failure to promote, denial of transfer, reduction in pay - are time barred if they took place outside the statute of limitations, "even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period." Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 157 (2d Cir. 2012) cert. denied sub nom. Eng v. Port Auth. of New York & New Jersey, 133 S.Ct. 1724 (2013) (collecting cases from other circuits).
It is also well established that hostile work environment claims are different from claims of discrete discriminatory acts because "[t]heir very nature involves repeated conduct. The unlawful employment practice... occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Morgan, 536 U.S. at 115. Thus, "so long as an act contributing to that hostile environment takes place within the statutory time period, " it is appropriate to consider "the entire scope of a hostile work environment claim, including behavior alleged outside the statutory period." McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010) (quoting Morgan, 536 U.S. at 105).
Generally, a plaintiff must file an administrative complaint alleging Title VII violations with the EEOC within 180 days of the alleged discriminatory conduct. See 42 U.S.C. § 2000e-5(e)(1). However, in a "deferral" state such as New York, in which there is a designated state or local agency with jurisdiction to consider discriminatory employment claims, the limitations period for filing charges with the EEOC is extended to 300 days. See id; 29 C.F.R. § 1601.13; McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010). Plaintiff filed her New York State Division of Human Rights ("NYSDHR") complaint on May 27, 2010, thus barring federal claims for discrete acts of discrimination or retaliation that occurred before July 31, 2009 (300 days earlier). Except for claims relating to her termination - a discrete act which occurred after July 31, 2009 - and those alleging a hostile work environment, all of plaintiff's federal discrimination and retaliation claims are time barred.
Under New York law, plaintiff's NYSHRL and NYCHRL claims are subject to a three-year statute of limitations. N.Y. C.P.L.R. § 214(2); N.Y. City Admin. Code § 8-502(d); see also Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 474 (S.D.N.Y. 2009) (noting three-year statute of limitations applies to both state and city discrimination claims). Because plaintiff filed this suit on April 18, 2011, claims for conduct that took place prior to April 18, 2008 are time barred. Thus, in addition to the claims noted above which survive the federal statute of limitations, plaintiff's claims related to her being denied the ability to work as an LPN "on permit" are not time barred under the NYSHRL and NYCHRL.
c. Liberal Construction of the NYCHRL
Under the Local Civil Rights Restoration Act of 2005 (the "Restoration Act"), N.Y.C. Local L. No. 85, the New York City Council established two new rules of construction for the NYCHRL: (1) "a one-way ratchet, ' by which interpretations of state and federal civil rights statutes can serve only as a floor below which the City's Human Rights law cannot fall'"; and (2) a requirement that the NYCHRL provisions "be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title[, ] have been so construed." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Restoration Act §§ 1, 7). The Second Circuit recently clarified that these amendments to the Restoration Act require subjecting NYCHRL claims to a different standard and analyzing them separately from Title VII and NYSHRL claims. See id. The NYCHRL must be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." Id. (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011)). However the Mihalik court also made clear that:
Summary judgment remains an integral part of the Federal Rules of Civil Procedure as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.... District courts may still grant summary judgment with respect to NYCHRL claims if there is no genuine dispute as to any material fact....
Id. at 111-12 (citing Fed.R.Civ.P. 56(a)). With these guiding principles in mind, the Court addresses plaintiff's NYCHRL claims separately ...