United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
Plaintiff Ebenezer Opuko Acheampong ("Plaintiff") brings this action against his former employer, the New York City Health and Hospitals Corporation ("HHC"), Generationsﳚ⮶ឫ Manhattan Network, Harlem Hospital Center ("Harlem Hospital" or the "Hospital"), Dr. John Palmer ("Dr. Palmer"), Yvonne Reynolds ("Reynolds"), Laureen Goodridge-Smith ("Goodridge-Smith") and Herman Smith ("Smith" and collectively, "Defendants"),  alleging that he was discriminated against, retaliated against and subjected to a hostile work environment on the basis of his disability, age, national origin, race and skin color in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1983 ("Section 1983"); and the New York State Human Rights law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL"). Plaintiff asserts that Defendants discriminated against him by, inter alia, failing to promote him, suspending him and, eventually, terminating his employment.
Defendants have moved for summary judgment, arguing that many of Plaintiffs' claims are time-barred or procedurally barred and, as to the remainder, that Defendants are entitled as a matter of law to judgment in their favor. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367. For the following reasons, Defendants' motion for summary judgment is granted in its entirety.
From September 8, 2003, to 2011, Plaintiff, a black Ghanaian immigrant who is at least sixty-four years of age, was employed as a Level I Computer Aide by HHC at Harlem Hospital. (Def. 56.1 St. ¶¶ 1, 5, 7; Pl. 56.1 Counter St. ¶ 1.) Approximately one year before he began working at HHC, Plaintiff was hit on the head with a baseball bat and lost hearing in both ears as a result. (Pl. 56. 1 St. ¶ 6.) In 2003, Plaintiff was using a hearing aid in his right ear; by 2004 or 2005, Plaintiff had to use hearing aids for both ears. (Def. 56.1 St. ¶¶ 8-9.) HHC knew from the commencement of Plaintiff's employment that he had a hearing disability. (Pl. 56.1 Counter St. ¶ 13.)
Plaintiff was assigned to the Nursing Information Service ("NIS") at Harlem Hospital, where he used a special telephone to aid his hearing. (Def. 56.1 St. ¶¶ 10-11.) According to Plaintiff, his primary functions at the NIS were to input overtime data from authorization sheets and schedules from plan sheets; make changes to schedules; prepare and print the payroll report; and import data. (Pl. 56.1 St. ¶ 102.) In 2004, Defendant Reynolds, an African-American woman, became Plaintiff's immediate supervisor. (Def. 56.1 St. ¶¶ 12-13.) Defendant Goodridge-Smith, also an African American woman, was the Associate Executive Director of Nursing and Defendant Reynolds' supervisor. (Id. ¶¶ 14-15.) In 2004, 2005, 2006, and 2008, Plaintiff received overall ratings of "satisfactory" on his performance evaluations. (Id. ¶¶ 16-17, 19.)
Facts Relating to Plaintiff's Failure to Promote Claim
In February 2004, HHC employees were permitted to take a promotion examination. Their score on this examination was considered in combination with other factors, including experience and education. (Def. 56.1 St. ¶¶ 72, 73.) Plaintiff took the exam and received a score of 75 out of 100, which ranked him as number 10 on the list of employees eligible for promotion, with number 1 as the top-ranked person. (Id. ¶¶ 75-76.) According to Plaintiff, there was also a policy at the HHC, and at Harlem Hospital, whereby a supervisor could make a request to promote a candidate for a position or request that an internal candidate be promoted within a department. (Pl. 56.1 Counter St. ¶¶ 23-24.) Plaintiff alleges that he gave his paperwork to his immediate supervisor, Defendant Reynolds, so that she would obtain the approvals necessary for his promotion. (Pl. 56.1 Counter St. ¶ 25.) On June 21, 2005, Plaintiff attended a hiring pool and was interviewed by three HHC hospitals with potential vacancies available for a position at a higher level than the one Plaintiff held. (Def. 56.1 St. ¶¶ 78-80.) Plaintiff alleges that, while interviewing, he was told that his department head had not sent the requisite certification documents, which meant that Plaintiff could not be certified for the positions for which he was interviewing. (Pl. 56.1 Counter St. ¶ 33.) However, Defendants contend that, at the hiring pool stage, an applicant's current supervisor does not submit any paperwork. (Def. 56.1 St. ¶¶ 81-82.)
Plaintiff was not selected for any of the positions for which he interviewed in June 2005, and does not know who was selected. (Id. ¶¶ 83-84.) After he was interviewed again in March 2006, he again was not selected, and does not know anyone who was selected. (Id. ¶¶ 87-89.) According to Plaintiff, after the 2006 interviews, Plaintiff returned to Defendant Reynolds to request a letter from Defendant Goodridge-Smith that would certify him for promotion, and Defendant Reynolds told Plaintiff that Defendant Goodridge-Smith had said that he should not be promoted because he could not hear. (Pl. 56.1 Counter St. ¶¶ 42-44.) Defendant Reynolds also allegedly told Plaintiff to speak to Herman Smith and Clay Omowale, both of whom worked for HHC's Human Resources department, but, although Plaintiff tried to meet with Smith, he was unable to do so. (Id. ¶¶ 45-47.)
Plaintiff was notified that there would be a third hiring pool conducted in March 2007, again based on the eligibility list from the 2004 examination. (Def. 56.1 St. ¶ 90.) Before the hiring pool, Plaintiff met with Omowale, who allegedly told him that someone from Harlem Hospital would attend the interviews, which Plaintiff understood to mean that there would be someone there who could certify him for promotion. (Pl. 56.1 Counter St. ¶¶ 53-54.) Plaintiff attended the 2007 hiring pool, but was not certified or promoted. (Pl. 56.1 Counter St. ¶¶ 55-58, Def. 56.1 St. ¶¶ 90-91.)
According to Defendants, Plaintiff's name was not considered further because, after the 2007 interview, Plaintiff voluntarily declined to be considered further by deliberately checking a box on the Notice of Interview form and withdrawing his candidacy. (Def. 56.1 St. ¶¶ 92-93.) Plaintiff contends that he did not decline to be considered for the 2007 openings and wanted his name kept on the list. (Pl. 56.1 St. ¶¶ 92-93.) Plaintiff later requested that his name be restored to the list and was notified that his request had been approved and his name restored on May 9, 2007. (Def. 56.1 St. ¶ 95.) According to Defendants, no appointments to the position of computer associate (operations), the position for which Plaintiff was applying, were made at Harlem Hospital - based on the examination that Plaintiff had taken - before the eligibility list expired on January 12, 2009. (Id. ¶¶ 96-99.)
Facts Relating to Plaintiff's Retaliation Claim
Plaintiff alleges that he complained informally to Omowale in 2006 that he was not being promoted because he had a hearing disability. According to Plaintiff, Omowale said that Plaintiff should not worry and that he would speak with Defendant Goodridge-Smith. Plaintiff alleges that he heard nothing back from Omowale. (Pl. 56.1 Counter St. ¶¶ 59-62.) After Defendant Goodridge-Smith refused to write Plaintiff a letter to support his promotion in 2007, Plaintiff went to Defendant Dr. Palmer to lodge a discrimination complaint. (Pl. 56.1 Id . ¶ 82.) According to Plaintiff, he told Dr. Palmer's secretary in September 2008 that his pay was being inappropriately docked; that garbage was being left under his desk; that Defendant Goodridge-Smith was refusing to support his promotion; and that Defendant Reynolds sometimes called a second person in to witness instructions being given to him because she said that Plaintiff could not hear. (Pl. 56.1 Counter St. ¶ 83.) According to Plaintiff, Dr. Palmer instructed him in October 2008 to go to Human Resources and, when he went, Defendant Goodridge-Smith was there with Omowale. (Id. ¶ 86.) Omowale told him that he would schedule a meeting with Plaintiff and Plaintiff's union representative. (Id.) Plaintiff contends that no subsequent meeting took place and that, although he tried to meet with Defendant Dr. Palmer on two more occasions, he was not given an appointment and never heard anything further. (Id. ¶¶ 87-89.)
Plaintiff contends that, after he complained to Defendant Dr. Palmer, the "Defendants ratcheted up their discriminatory acts against him." (Id. ¶ 90.) Plaintiff states in a Declaration that one of his co-workers informed him that Defendants were trying to get rid of him and that the Assistant Director of Nursing told him that "his treatment by his supervisor and his peers was being done at the behest of Defendant Goodridge-Smith, his Department head." (Id. ¶¶ 91-93.) According to Plaintiff, he was frequently derided and mocked because of his hearing problems during this time period. (Id. ¶ 92.) Defendants point out that Plaintiff testified, however, that Defendant Goodridge-Smith never made any comments to Plaintiff directly about his hearing and that he could not recall whether Defendant Reynolds or Defendant Goodridge-Smith ever made comments to him about his age, race or ethnicity. (See Def. 56.1 St. ¶¶ 25-26; Pl. 56.1 St. ¶ 25.) Defendant Reynolds testified that Plaintiff never complained to her about discrimination; and Defendant Goodridge-Smith testified that Plaintiff once complained to her because he thought that two female staff members were laughing at him, but when she spoke to the staff members, she concluded that they were not. (Def. 56.1 St. ¶ 106.)
Plaintiff further contends that, after he had complained about not being promoted and about being treated differently, around mid to late 2008, Plaintiff began to notice that his pay was being docked. (Pl. 56.1 Counter St. ¶ 67.) According to Plaintiff, he had always had his completed time sheets signed by Defendant Reynolds, who also gave him copies so that he could track his own vacation and sick time leave and so that he did not have to request and obtain approval to take such leave. (Pl. 56.1 Counter St. ¶¶ 68-71.) Plaintiff alleges that, at some point in late 2008, Defendant Reynolds stopped signing Plaintiff's time sheets and delegated this function to Defendant Goodridge-Smith's secretary, who made changes to Plaintiff's time sheets, of which Plaintiff was not given copies so that he could track his time. (Id. ¶¶ 73-78.) According to Plaintiff, Defendant Reynolds also initially refused to approve Plaintiff taking off time to attend his mother's funeral in Ghana around this time, and Plaintiff contends that, after he returned from his mother's funeral, he learned that he no longer had direct deposit for his paychecks. (Pl. 56.1 Counter St. ¶¶ 103-106.) When Plaintiff inquired as to what had happened with his direct deposit, he was told by a payroll employee that he had been removed from the system because Defendant Reynolds was trying to fire him, but he was later placed back in the system after he spoke with the Human Resources labor relations liaison. (Id. ¶¶ 110, 112.)
Plaintiff's Suspension and Termination
Plaintiff contends that, on or about February 17, 2009, Defendant Reynolds docked time from him when he had not actually taken any time off and that, when he asked her about it, she said it was because he had taken the time. (Pl. 56.1 Counter St. ¶¶ 113-115.) According to Plaintiff, he then asked Defendant Reynolds for his time sheet so that he could calculate his own time and asked why she had not given him copies of his time sheets as he had requested, but she ignored his questions and told him that he could not speak to her. (Pl. 56.1 Counter St. ¶¶ 116-118.) Plaintiff contends that he became very emotional and began to cry, and Defendant Reynolds picked up the phone and called hospital security. (Id. ¶¶ 119-122.) According to Defendants, Defendant Reynolds called hospital security because Plaintiff was screaming at her, had thrown papers on her desk and, as she stated in the disciplinary charges subsequently served on Plaintiff, she felt that her safety and the safety of her coworkers was at risk. (Def. 56.1 St. ¶¶ 28-29; Declaration of John S. Schowengerdt ("Schowengerdt Dec.") Ex. C, March, 2009 Disciplinary Charges at D00304.) Plaintiff denies that he threatened Defendant Reynolds. (Pl. 56.1 Counter St. ¶ 122.) However, four staff members submitted statements describing the incident in support of the disciplinary charges, which confirmed Defendant Reynolds' description of the events. (Def. 56.1 St. ¶¶ 31-32; Schowengerdt Dec., Ex. D.) Harlem Hospital's police were sent to Plaintiff's office, and escorted him to the hospital labor relations office, where he was informed that he was being relieved of his duties pending an investigation into the allegations regarding his behavior and was asked to return all hospital property. (Def. 56.1 St. ¶¶ 33-34, Pl. 56.1 Counter St. ¶¶ 123-124.)
On March 11, 2009, Plaintiff was served with formal disciplinary charges, which charged him with engaging in misconduct on February 17, 2009. (Def. 56.1 St. ¶ 36.) On March 19, 2009, through his union representative, Plaintiff executed a settlement agreement with HHC and accepted a penalty of a thirty-day suspension without pay. (Def. 56.1 St. ¶¶ 37-38.) According to Plaintiff, his union representative told him that, if he did not sign the thirty-day suspension agreement, he would be terminated. (Pl. 56.1 Counter St. ¶ 127.) Plaintiff contends that, when he returned from his suspension, Defendant Reynolds changed his performance review from the overall rating of "satisfactory" for the review period of September 8, 2007, to September 7, 2008, to "less than satisfactory" even though his favorable review had been signed by all relevant parties several months before. (Pl. 56.1 Counter St. ¶¶ 129-133.) Defendant Reynolds testified that Plaintiff received an unsatisfactory rating because there were many errors in his work, which had to be revised by others, in the 2008-09 period. (Def. 56.1 St. ¶ 21.)
From April 2009 onward, Plaintiff asserts, his job functions were restricted and he was only allowed to enter nursing schedules and not do anything with new employee data, overtime or various reports, and that he was not trained in the new computer system that the Hospital was using. (Pl. 56.1 Counter St. ¶¶ 134-136, 138-140.) On April 24, 2009, Plaintiff states, he went to Human Resources to report the harassment that he was experiencing, but instead of investigating his complaint, Human Resources advised him to speak to a union representative. (Id. ¶ 137.)
On August 5, 2009, Defendant Reynolds reported to the Hospital police that, the day before, Plaintiff had approached her from behind when they were alone in a hallway in the Hospital and, following her closely, had stated "I am going to kill you. I know more about you than you think. I know what you are doing, " and that she had "felt afraid, threatened and violated" because of Plaintiff's remarks and "was trembling like a leaf." (Def. 56.1 St. ¶¶ 39-40.) Defendant Reynolds did not immediately report the incident to her supervisor, Defendant Goodridge-Smith, and she never filed a complaint with the New York Police Department or District Attorney's Office. (Pl. 56.1 Counter St. ¶¶ 143-144.) That same day (August 5, 2009), Plaintiff was relieved of his duties pending an investigation into the events of August 4, 2009, and on August 24, 2009, he was served with disciplinary charges, again for misconduct. (Def. 56.1 St. ¶¶ 43-45.) Following this incident, a disciplinary hearing was held on August 31, 2009, pursuant to Plaintiff's collective bargaining agreement ("CBA"), at which Plaintiff was represented. (Id. ¶¶ 46-47.) The conference officer at the hearing determined that Plaintiff had displayed disruptive behavior and ...