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Toussaint v. NY Dialysis Services, Inc.

United States District Court, S.D. New York

January 31, 2017


          Michael Howard Sussman, Esq. Michael Anthony Deem, Esq. Goshen, NY Counsel for Plaintiff.

          Eve I. Klein, Esq. Katelynn Mimi Gray, Esq. Duane Morris, LLP New York, NY Counsel for Defendant

          OPINION & ORDER

          KENNETH M. KARAS, District Judge.

         Plaintiff Leslie Toussaint (“Plaintiff”) filed the instant Complaint against Defendant NY Dialysis Services, Inc. (“Defendant”) alleging that Defendant discriminated against Plaintiff on the basis of race, in violation of 42 U.S.C. § 1981 and N.Y. Exec. Law § 296, because Defendant terminated Plaintiff after an incident with a coworker, but not the “non-Black” coworker also involved in the incident. (See Dkt. No. 1.) Before the Court are Defendant's Motion for Summary Judgment and Motion for Sanctions. (See Dkt. Nos. 48, 51.) For the reasons to follow, Defendant's Motion for Summary Judgment is granted and Defendant's Motion for Sanctions is denied.

         I. Background

         A. Factual Background

         The following undisputed facts are taken from the evidence submitted by the Parties and from the statements submitted by the Parties pursuant to Local Rule 56.1.

         1. Defendant's Business & Policies

         Defendant is an entity wholly owned by Fresenius Medical Care Holdings, Inc., a company involved in the manufacture and distribution of dialysis equipment, medication, and supplies and in the provision of clinical dialysis services to patients with end-stage renal disease. (See Aff. of Denise Patterson in Supp. of Mot. for Summ. J. (“Patterson Aff.”) ¶¶ 2-3 (Dkt. No. 54); see also Def.'s Rule 56.1 Statement (“Def.'s 56.1”) ¶ 1 (Dkt. No. 55); Pl.'s Resp. to Def.'s Statement of Material Facts Not in Dispute (“Pl.'s 56.1”) ¶ 1 (Dkt. No. 59).)[1] Defendant owns a number of dialysis clinics, including a clinic in Middletown, New York, where Plaintiff worked during the relevant time period. (See Patterson Aff. ¶ 3; see also Def.'s 56.1 ¶ 4; Pl.'s 56.1 ¶ 4.)

         Defendant has a number of policies relevant to this dispute. First, Defendant has an Equal Employment Opportunity Policy, which states that Defendant “is an equal opportunity employer and does not tolerate unlawful discrimination against any individual.” (Patterson Aff. Ex. A; see also Def.'s 56.1 ¶ 6; Pl.'s 56.1 ¶ 6.) That policy was adopted in its current form on September 1, 2009. (See Patterson Aff. Ex. A; see also Pl.'s 56.1 ¶ 6.) Defendant also maintains a policy regarding corrective action for employees who fail to follow “established standards of conduct and job performance.” (See Patterson Aff. Ex. B.) Where an employee violates policy or engages in inappropriate workplace behavior, Defendant's policy is to investigate the incident or allegation, discuss the appropriate corrective action, implement the corrective action and complete the appropriate documentation, and maintain a file of the employee's corrective action forms. (See id.) Defendant's policy sets forth several tiers of corrective action: (1) documented counseling, (2) written warning, (3) final written warning, and (4) termination; Defendant may bypass any of these steps at its discretion. (See id.)

         Defendant also maintains a policy instructing employees how to report sexual harassment and general harassment. (See Patterson Aff. Ex. B; see also Def.'s 56.1 ¶ 8; Pl.'s 56.1 ¶ 8.) This policy directs employees who believe they have been harassed to first try to resolve the issue by discussing the inappropriate behavior with the alleged harasser, and if those attempts are unsuccessful, to report the alleged act to an appropriate supervisor. (See Patterson Aff. Ex. B; see also Pl.'s 56.1 ¶ 8.) While the Parties dispute whether Plaintiff was ever made aware of this policy, (see Def.'s 56.1 ¶ 9; Pl.'s 56.1 ¶ 9), there is no apparent disagreement that this and other policies were generally available to all employees of Defendant, (see Decl. of Eve I. Klein in Supp. of Mot. for Summ. J. (“Klein Decl.”) Ex. B, at 125 (Dkt. No. 53)).

         Finally, Defendant maintains a Workplace Violence Policy that prohibits “[v]iolent, threatening, aggressive, or abusive behavior.” (Patterson Aff. Ex. C; see also Def.'s 56.1 ¶ 10; Pl.'s 56.1 ¶ 10.) The Parties agree that Plaintiff was aware that Defendant maintains a policy regarding workplace conduct. (See Klein Decl. Ex. B, at 118; see also Def.'s 56.1 ¶ 11; Pl.'s 56.1 ¶ 11.)

         2. Plaintiffs Employment

         Plaintiff was hired as a porter/housekeeper at the Middletown Clinic on February 15, 1993. (See Affirmation of Michael H. Sussman (“Sussman Affirmation”) Ex. 1 (Dkt. No. 58); see also Def.'s 56.1 ¶ 4; Pl.'s 56.1 ¶ 4.) Plaintiff contends that in January 2005, he received a promotion to the position of housekeeper. (See Pl.'s 56.1 ¶ 4; see also Sussman Affirmation Ex. 2.) Plaintiff is a Black male. (See Compl. ¶ 2; see also Def.'s 56.1 ¶ 3; Pl.'s 56.1 ¶ 3.)

         Throughout Plaintiff s employment, he was issued a number of disciplinary write-ups regarding his behavior. (See Patterson Aff ¶ 14; Patterson Aff Ex. E; see also Def.'s 56.1 ¶ 19; Pl.'s 56.1 ¶ 19.) Specifically, Plaintiffs disciplinary record includes the following:

• On July 7, 1994, Plaintiff refused an order from a superior to complete a task, stating that it was not his job. When Plaintiff was confronted by his supervisor about the incident, Plaintiff “went into a fit of rage again, ” telling his supervisor that he could fire Plaintiff if he wanted. (See Patterson Aff. Ex. E, at NYDS000144.);
• On October 5, 1994, Plaintiff slammed several patients' chairs against a back wall while loudly stating that he was tired of his “fucking job” and “these fucking people.” Plaintiff was told that he had been addressed before on the issue of obscene language and aggressive behavior. (See Id. at NYDS000104.);
• On August 28, 1996, a coworker filed a complaint against Plaintiff for use of inappropriate language, and Plaintiff filed a counter-complaint against his coworker for hostile behavior. Plaintiff and his coworker were instructed to address each other in a civil and respectful way and not to incite conflict. (See Id. at NYDS000101.);
• On August 16, 1996, Plaintiff used profanity in a treatment area while arguing with another staff member. Plaintiff was given a verbal warning about the use of profanity in front of patients. (See Id. at NYDS000103.);
• On December 3, 1996, Plaintiff verbally abused a technician who had asked him to step aside so that she could perform a task. The disciplinary write-up included language that this would be Plaintiffs “last warning” and that if he could not control his temper, he would be discharged. (See Id. at NYDS000102.);
• On March 28, 1997, Plaintiff addressed a coworker in a “confrontational, argumentative[, ] and disrespectful manner.” The disciplinary write-up again stated that this would be Plaintiff s final warning. (See Id. at NYDS000099-NYDS000100.);
• On July 23, 1999, a coworker complained that Plaintiff had acted inappropriately toward an ailing patient. (See Id. at NYDS000098.); . On August 30, 1999, Plaintiff met with Angie Guasp to discuss his inappropriate behavior and was instructed to perform his tasks in a professional manner. (See Id. at NYDS000142.);
• On May 15, 2000, Plaintiff was suspended one day for his belligerent and aggressive behavior after being asked to sweep the floor of a treatment area. (See Id. at NYDS000097.); . On June 9, sometime between 2000 and 2009, a coworker complained that Plaintiff became confrontational when asked to change the water cooler container and used vulgar language toward one of the nurses. (See id at NYDS000095-NYDS000096.);[2]
• On June 9, 2001, Plaintiff was involved in a loud confrontation with another employee in the treatment area and used obscene and abusive language. (See id at NYDS000126.);
• On December 30, 2001, Plaintiff was involved in another altercation, reported by a coworker, in which he yelled at another employee. (See id at NYDS000124.);
• On September 8, 2008, Plaintiff was in an argument with another staff member during which Plaintiff used vulgar language. Plaintiff was suspended three days. (See Id. at NYDS000111.);
• On August 8, 2012, Plaintiff was engaged in another confrontation, which was later reported to management by a coworker, regarding his refusal to clean a chair. (See Patterson Aff Ex. F.)

         Additionally, Plaintiff was disciplined or warned several times for his failure to maintain work standards and his failure to properly clock-in and out. (See Patterson Aff. Ex. E, at NYDS000125, NYDS000111, NYDS000145, NYDS000139, NYDS000140, NYDS000091, NYDS000089, NYDS000118, NYDS000117, NYDS000105, NYDS000105.) Plaintiff generally denies that any of these complaints or disciplinary write-ups has merit. (See Sussman Affirmation Ex. 3, at 42-43; see also Pl.'s Rule 56.1 Counterstatement (“Pl.'s Counter 56.1”) ¶ 50 (Dkt. No. 59).) Plaintiff did, however, sign several of the disciplinary write-ups to acknowledge that he received them. (See Patterson Aff. Ex. E, at NYDS000104, NYDS000102, NYDS000099, NYDS000126; see also Def.'s 56.1 ¶ 19; Pl.'s 56.1 ¶ 19.)

         Separate from his disciplinary write-ups, Plaintiff also received performance reviews. In December 2011, Plaintiff scored a 665 out of a possible 1000 points on his evaluation, receiving eight out of ten points in several categories, including job knowledge, dependability/reliability, and initiative, five out of ten points in interpersonal skills, efficiency/productivity, and adaptability, and two out of ten points in professionalism. (See Sussman Affirmation Ex. 16; see also Pl.'s Counter 56.1 ¶ 92; Def.'s Resp. to Pls.' Counterstatement of Material Facts (“Def.'s Counter 56.1”) ¶ 92 (Dkt. No. 65).) The review notes that “[Plaintiff] is very social and likes to frequently chat with patients. This is admirable, but must also remember to complete daily tasks.” (Sussman Affirmation Ex. 16; see also Pl.'s Counter 56.1 ¶ 93; Def.'s Counter 56.1 ¶ 93.)

         On his evaluation completed in November 2012, Plaintiff scored a 725 out of a possible 1000 points, receiving eight out of ten points in most categories, but receiving five out of ten points for interpersonal skills, professionalism, and adaptability. (See Sussman Affirmation Ex. 15; see also Pl.'s Counter 56.1 ¶ 90; Def.'s Counter 56.1 ¶ 90.)

         3. Amanda Warbington's Employment

         Amanda Warbington was hired by Defendant on July 26, 2010 as a patient care technician. (See Patterson Aff. ¶ 19; Patterson Aff. Ex. G; see also Def.'s 56.1 ¶ 25; Pl.'s 56.1 ¶ 25.) When Warbington was hired, she filled out a “New Hire Employment Information” form, wherein she was asked to identify her racial/ethnic classification. Warbington indicated that she was “Hispanic or Latino, ” which the form indicated referred to “[a] person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.” (Sussman Affirmation Ex. 5; see also Pl.'s Counter 56.1 ¶ 107; Def.'s Counter 56.1 ¶ 107.) Another box, which was not checked by Warbington, allowed a new employee to indicate that he or she was “Black or African American (Not of Hispanic or Latino).” (Sussman Affirmation Ex. 5.) In a separate form, which may or not have been filled out by Warbington, Warbington's ethnicity is marked as “Hispanic, ” and there is nothing in the box marked “Race.” (Sussman Affirmation Ex. 21; see also Pl.'s Counter 56.1 ¶ 107; Def.'s Counter 56.1 ¶ 107.) At her deposition, when asked how she would describe herself “ethnically or racially, ” Warbington responded: “I would say I'm black. I am black.” (Klein Decl. Ex. C, at 46.) When asked if she would ever describe herself as just Hispanic, Warbington responded: “Yes, if I'm filling out a college application or if it says directly Hispanic, not of black descent or if it says African, not of Hispanic descent. Then I would check Hispanic.” (Id. at 49.) Maria Guasp, one of the individuals involved in the decision to ultimately terminate Plaintiff's employment, testified that Warbington is Black. (See Klein Decl. Ex. A, at 104.) Denise Patterson, another individual involved in the decision to terminate Plaintiff's employment, testified that it was her understanding and the understanding of all four individuals involved in the decision to terminate Plaintiff's employment that both Plaintiff and Warbington are Black. (See Patterson Aff. ¶ 31.)

         Prior to the incident giving rise to this case, Warbington had received only one verbal warning for behavioral issues, (see Patterson Aff. ¶ 20; Patterson Aff. Ex. H), one verbal warning for failure to comply with patient care policies, (see Sussman Affirmation Ex. 6, at NYDS000318), and one written warning for failure to comply with infection control policies, (see Id. at NYDS000319-NYDS000320). Though Plaintiff denies all of this in his 56.1 statement, the documents cited to by counsel plainly support Defendant's account of Warbington's disciplinary history. (See also Pl.'s Counter 56.1 ¶¶ 94-98 (relaying Warbington's disciplinary history); Def.'s Counter 56.1 ¶¶ 94-98.)

         4. The September 13, 2013 Incident

         On the evening of September 13, 2013, Plaintiff, Warbington, and Dierdra Maldonado, another employee, were working together at the Middletown Clinic. (See Klein Decl. Ex. B, at 162-63; see also Def.'s 56.1 ¶ 30; Pl.'s 56.1 ¶ 30.) Maldonado was a registered nurse and was new to the job. (See Klein Decl. Ex. B, at 163; see also Def.'s 56.1 ¶ 31; Pl.'s 56.1 ¶ 31.) The three were closing down the Middletown Clinic when Plaintiff pointed out to Maldonado that the bicarbonate and the water tanks needed to be emptied. (See Klein Decl. Ex. B, at 163; see also Def.'s 56.1 ¶ 35; Pl.'s 56.1 ¶ 35.) The Parties' respective accounts of the incident diverge at this point. Plaintiff avers that before Maldonado could even respond, Warbington interjected and called Plaintiff stupid for asking Maldonado about emptying the tanks. (See Sussman Affirmation Ex. 3, at 164-65; see also Pl.'s Counter 56.1 ¶ 3.) Warbington and Maldonado, by contrast, testified that before Warbington interjected, Maldonado informed Plaintiff that she did not know anything about how the tanks in the water room were operated, and that it was not until Plaintiff pressed Maldonado again about the tanks that Warbington intervened and told Plaintiff she would take care of them. (See Klein Decl. Ex. C, at 18-19; Klein Decl. Ex. E, at 11-14.) The Parties agree, however, that at the conclusion of this exchange, Maldonado asked Warbington to show her how to empty the tanks and the two walked away from Plaintiff and went into the water room together. (See Klein Decl. Ex. B, at 174; Klein Decl. Ex. C, at 21; Klein Decl. Ex. E, at 18; see also Def.'s 56.1 ¶ 39; Pl.'s 56.1 ¶ 39.)

         In the water room, another confrontation occurred, though the Parties again dispute the precise facts. Warbington and Maldonado testified that while they were examining the water tanks together, Plaintiff entered the water room and began screaming in Warbington's face, telling Warbington that he was sick of her talking down to him and warning Warbington that he would tell Guasp, their supervisor, about her. (See Klein Decl. Ex. C, at 34-35; Klein Decl. Ex. E, at 24.) Maldonado interjected at this point and encouraged Plaintiff to tell Guasp about the incident. (See Klein Decl. Ex. E, at 26.) Plaintiff then “lost it, ” making a beeline for Warbington, and got very close to her face, yelling obscenities at Warbington. (See Id. at 26- 27.) Plaintiff was, in fact, so close to Warbington's face that his yelling caused Warbington's hair to move. (See Id. at 28.) Because of where Warbington and Plaintiff were standing in relation to the water tanks in the room, Warbington could not move away from Plaintiff. (See Id. at 32.) At one point, Maldonado put her hand on Plaintiff's shoulder, (see Id. at 29-30), and later put her hand between Plaintiff and Warbington in an effort to guide Plaintiff out of the room, (see Id. at 30; Sussman Affirmation Ex. 8, at 42). Warbington warned Plaintiff that if he did not get out of her face, she would hit him, (see Sussman Affirmation Ex. 8, at 42), and told Plaintiff that if he touched her, she would call the cops, (see Klein Decl. Ex. E, at 30). Plaintiff never touched or threatened to harm Warbington. (See Id. at 42.)

         Plaintiff tells a different story. According to Plaintiff, he returned to the water room to complete some of his duties. (See Sussman Affirmation Ex. 3, at 176.) When Plaintiff returned to the water room, where Warbington and Maldonado were discussing the water tanks, Warbington approached Plaintiff, got in his face, and told Plaintiff that she would punch him. (See Id. at 177.) Plaintiff denies that he started yelling at Warbington when he entered the water room and denies that he pinned Warbington such that she could not move away from him. (See id. at 179.) Nor did Plaintiff get in Warbington's face or yell so forcefully that Warbington's hair moved. (See id.) Plaintiff also attests that Warbington never stated that she would call the police if Plaintiff touched her. (See Id. at 185.)

         5. Investigation ...

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