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Placide-Eugene v. Visiting Nurse Service of New York

United States District Court, E.D. New York

January 2, 2015


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[Copyrighted Material Omitted]

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For the Plaintiff: Thomas Ricotta, Esq., Of Counsel, White Ricotta & Marks, P.C., Jackson Heights, NY.

For the Defendant: Tonianne Florentino, Esq., Adam Michael Harris, Esq., Of Counsel, Collazo Florentino & Keil LLP, New York, NY.

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ARTHUR D. SPATT, United States District Judge

On August 25, 2011, the Plaintiff Marie Placide-Eugene (the " Plaintiff" ) filed a claim of discrimination with the New York State Division of Human Rights (the " NYSDHR), alleging that her former employer, the Defendant Visiting Nurse Service of New York (" VNSNY" ) had subjected her to discrimination due to her national origin.

On March 7, 2012, the United States Equal Employment Opportunity Commission issued to the Plaintiff a right to sue letter.

On June 4, 2012, the Plaintiff commenced this action against VNSNY and certain former supervisors, Eloise Goldberg (" Goldberg" ), Jill Mendelson (" Mendelson" ) and Marian Haas (" Haas" ) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (" Title VII" ), 42 U.S.C. § § 1981 and 1983, and the New York State Human Rights Law, New York State Executive Law § 290, et seq. (the " NYSHRL" ). The Plaintiff asserts that the Defendants unlawfully discriminated, harassed, and retaliated against her (1) based on her race/color and national origin and (2) due to her complaints of discrimination.

On November 8, 2012, the Defendants moved to partially dismiss the complaint pursuant to Federal Rule of Civil Procedure (" Fed R. Civ. P." ) 12(b)(6). The Defendant challenged the portion of the Plaintiff's Title VII claim that alleged discrimination, retaliation, and hostile work environment based on national origin.

On December 7, 2012, the Plaintiff confirmed that she was withdrawing her NYSHRL and § § 1981 and 1983 claims against the Individual Defendants. At that point, the VNSNY became the only remaining Defendant. In addition, the only claim remaining in this action was the Plaintiff's Title VII claim for discrimination and retaliation, as it was brought against the VNSNY alone.

On May 30, 2013, the Court denied the Defendant's motion to dismiss the Title VII claim alleging discrimination and retaliation based on national origin.

On June 4, 2013, the Plaintiff filed an amended complaint consistent with the May 30, 2013 order.

Following the completion of discovery, on May 22, 2014, VNSNY moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the amended complaint.

For the following reasons, VNSNY's motion for summary judgment is granted.


Unless otherwise stated, the following facts are drawn from the parties' Rule 56.1 Statements and exhibits and construed in a light most favorable to the non-moving party, the Plaintiff. Triable issues of fact are noted.

A. The Parties

The Plaintiff's color is black, her race is black, and her national origin is Haitan. VNSNY is a not-for-profit organization that provides a range of home and community-based health care services.

B. The Plaintiff's Hiring

In 2001, VSNSNY hired the Plaintiff as a Registered Nurse. The Plaintiff's job responsibilities included coordinating and providing multidisciplinary home-based healthcare services to patients residing Massapequa, Long Island and her scheduled

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work hours were Monday through Friday from 8:30 a.m. to 4:30 p.m.

During her employment with VNSNY, the Plaintiff was a member of a bargaining unit represented by the United Federation of Teachers, Local 2 (the " Union" ). At all relevant times, VNSNY and the Union were parties to a collective bargaining agreement (" CBA" ).

When a VNSNY nurse visits a patient's home, the nurse is required to call Santrax, a call-in system that keeps track of a nurse's time and attendance, using the patient's telephone, and the nurse enters a unique code specific to the patient in order to document the nurse's arrival at the patient's home. During her employment with VNSNY, the Plaintiff never found herself in a situation where the patient lacked a working telephone that she could use to call Santrax. On October 11, 2011, Mendelson sent an email to several nurses in which she congratulated the Plaintiff for achieving the highest score for placing timely calls into the Santrax call-in system in September 2011.

VNSNY issued a tablet computer to the Plaintiff to use when providing care during patient visits. A VNSNY nurse uses her VNSNY-issued tablet computer to document a patient's signature, to document that the patient was unable to sign, or to document that the patient forgot to sign.

C. Leave Time

When a VNSNY nurse wishes to schedule a vacation, the nurse is required to submit a vacation request to a VNSNY computer system called Work Brain. Vacation time for VNSNY nurses is scheduled based on seniority and the percentage of staff that is permitted to be absent at any given time, which is 10%. The Plaintiff submitted a request in calendar year 2010 for vacation time from August 23, 2010 to September 7, 2010. After her vacation request was denied, the Plaintiff submitted a new request for time off from August 30 to September 7, 2010, which was approved. Although the Plaintiff's request to use vacation time on August 26, 2010 and August 27, 2010 was denied, Mendelson and Goldberg scheduled her to work the weekend of August 21 and 22, 2010, so that she could be scheduled off on August 26 and 27, 2010. However, the Plaintiff contends that her vacation requests were routinely denied.

The Plaintiff concedes that she was never disciplined during her employment with VNSNY for excessive use of sick time, for using sick time to extend a vacation or a weekend, or for abusing sick time or medical leave

D. Bereavement Time

Pursuant to the CBA, bargaining unit members are entitled to three paid workdays for leave for death in family in the case of the death of a spouse, child, mother, father, sister, brother, grandparent, mother-in-law, father-in-law, sister-in-law, brother-in-law, or other individual who lives in the same household as the employee. Such leave must be taken at the time of the funeral. Also, the CBA does not provide for leave for death in the family for a grandmother-in-law. The CBA also provides that " [t]he Employer shall have the right, at its sole discretion, to require any employee to work on any of the holidays herein specified [New Year's Day, Martin Luther King Jr.'s Birthday, President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day]. The Employer will, consistent with the needs of the Employer, distribute holidays on an equitable basis." (Goldberg Affid., Exh A.) Finally, of relevance here, under the CBA, " [t]he Employer will assign holiday work on an equitable basis subject to operational

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requirements . . . Any Employee who has worked for the Employer for over fifteen (15) years will not be required to work holidays unless required for the effective and efficient operation of the Employer or Region / Program." (Id.)

The Plaintiff's husband's grandmother died in 2009, and in connection therewith, she requested bereavement leave. However, the Plaintiff's sister-in-law, Marie Astride-Eugene, also an employee of VNSNY, requested a different weekend off to attend the funeral.

In November 2009, Mendelson informed the Plaintiff that her request for bereavement leave was not granted because the time was not authorized under the CBA.

E. The December 30, 2010 Complaint

On December 30, 2010, a patient's wife (" the December 30, 2010 complainant" ) complained that the Plaintiff visited her home to see her husband; that the Plaintiff was coughing heavily; and that the Plaintiff was sick at the time of the visit. The December 30, 2010 complainant stated her belief that the Plaintiff placed her husband at risk of contracting her illness. The Plaintiff claims that, on this occasion, she was required to report to work despite advising VNSNY officials that she was ill. The parties dispute whether the Plaintiff and Mendelson discussed this incident thereafter. The Plaintiff was not disciplined in connection with this complaint.

In the coordinator of care note she had prepared relating to the encounter described by the December 30, 2010 complainant, the Plaintiff wrote: " The case is not opened; vn reported to pt's residence to open the case even though vn was not feeling well; pt's wife noted that vn was coughing incessantly; she requested for vn to stop providing the care to her husband; she stated that her husband is undergoing chemotherapy, has a weakened immune system and prone to infection; vn concurred and notified psm Jill." (Mendelson Aff. At ¶ 30, Exh. M)

F. The May 18, 2011 Complaint

On May 18, 2011, the wife of a VNSNY patient (" May 18, 2011 complainant" ) contacted Mendelson to file a complaint about the Plaintiff. The May 18, 2011 complainant told Mendelson that the Plaintiff never took off her jacket during the visit and that the Plaintiff was at the house for 30-45 minutes or less.

G. The May 20, 2011 Complaint

During the afternoon of May 20, 2011, Mendelson received a telephone call from the daughter of one of the Plaintiff's assigned patients for that day (the " May 20, 2011 complainant" ) for the purpose of submitting a complaint about the Plaintiff. The May 20, 2011 complainant stated that the Plaintiff left her a telephone message the night before, stating that she would visit the patient between 11:00 a.m. and 12:00 p.m. the next day. The May 20, 2011 complainant allegedly told Mendelson that on May 20, 2011, the Plaintiff arrived at the patient's home at 1:00 p.m., when the patient was no longer home.

The Plaintiff maintains that she arrived at the patient's home at 10:30 a.m, at which time she was advised that the patient had forgotten that she would be visiting and was not home at the time.

H. The May 20, 2011 Catheter Patient Incident

On May 20, 2011, one hour before the end of the Plaintiff's scheduled work hours, her supervisor, Mendelson, telephoned the Plaintiff and directed her to visit a patient in Massapequa to address the patient's leaking foley catheter.

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The Plaintiff told Mendelson that she was almost home in Suffolk County and near the Smith Haven Mall. The Plaintiff adds that, prior to this call, at about 2:30 p.m., the Plaintiff called Mendelson and advised her that she was finished with her visits for the day and was, as per normal company practice, heading home to complete her reports and paperwork relating to her daily visits. The Plaintiff told Mendelson during the 3:30 p.m. telephone conversation that, due to traffic, it would take her two hours to reach the catheter patient and that the visit would be after her regular work hours. The Plaintiff queried Mendelson as to whether she would be paid extra compensation for this visit.

The Plaintiff stated at her deposition that the home health aide for the patient told her that a white nurse, Justin Horrigan, had previously declined to deal with the issue, yet he was not disciplined.

Following this conversation, Mendelson spoke with Denise Massaro (" Massaro" ), VNSNY Clinical Director of Nassau County and Mendelson's own supervisor, about the Plaintiff's response to Mendelson's direction that the Plaintiff visit the catheter patient. Massaro called the Plaintiff to verify that she would visit the patient, and at or ...

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