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Eka v. Brookdale Hospital Medical Center

United States District Court, E.D. New York

March 29, 2017

ALLAN EKA, Plaintiff,
v.
BROOKDALE HOSPITAL MEDICAL CENTER, Defendant.

          MEMORANDUM & ORDER

          Pamela K. Chen United States District Judge

         Plaintiff Allan Eka (“Eka” or “Plaintiff”) brings this employment discrimination action against his current employer, Defendant Brookdale Hospital Medical Center (“Brookdale” or “Defendant”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”), alleging that Brookdale subjected him to a hostile work environment[1]and disparate treatment based on his national origin, and retaliated against him for complaining about such discrimination by suspending him and refusing to hire him for other positions he applied for at Brookdale. Before the Court is Defendant's motion for summary judgment. For the reasons discussed below, the Court grants in part and denies in part Defendant's motion.

         BACKGROUND

         I. Facts

         A. Plaintiff's Hiring by Brookdale

         Plaintiff Allan Eka, who is of Nigerian national origin, works as a part-time Psychiatric Technician (“Psych Tech”) at Brookdale. (Def. 56.1[2] ¶ 1, 14; Eka Def.[3] at 6.) The position is a non-exempt and non-managerial position. (Id. ¶ 4.) As a Psych Tech, Eka's duties include monitoring and ensuring the safety of patients, providing charts to nurses, laundering the hospital's linens and clothing, and assisting patients with bathing. (Def. 56.1 ¶ 18.) He began his employment with Brookdale in April 2005. (Def. 56.1 ¶ 1.) In January 2006, he resigned from his position, and, in July 2006, Brookdale rehired him as a part-time Psych Tech. (Id. ¶¶ 2-3.) Before he started working at Brookdale, he worked for Holliswood Hospital (“Holliswood”). (Dkt. 41 (“Eka Dec.”) ¶ 2.) Jeannette Metelus (“Metelus”), a Nurse Manager who worked at both Holliswood and Brookdale, invited Eka to interview for a Psych Tech position at Brookdale. (Eka Dec. ¶ 3.) After interviewing with Metelus and Evelyn Joseph (“Joseph”), another Nurse Manager at Brookdale, Eka was hired. (Eka Dec. ¶ 3.) According to Plaintiff, the interview was a formality because Brookdale was opening a new child psychiatry unit and had urgent staffing needs. (Eka Dec. ¶ 3.) Eka's resume and employment application, which were submitted to Brookdale for the interview, stated that he attended high school and college in Nigeria. (Def. 56.1 ¶ 12.) However, the parties dispute whether Joseph was aware of Eka's Nigerian national origin before he was hired.[4] (See Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13.)

         B. Eka's Position & Shifts as a Psych Tech[5]

         Eka usually worked in the child psychiatry unit located on the eighth floor of the Community Health Center building (“8 CHC”). (Def. 56.1 ¶ 19; Eka Def. at 6-7.) He also worked on the thirteenth floor of the CHC (“13 CHC”), the fifth floor of the Snapper Building (“Snapper 5”), and the Psychiatric Emergency Room (“Psych ER”). (Def. 56.1 ¶ 19.) Psych Techs could be diverted from their scheduled assignment when there is need in another unit. (Eka Def. at 31, 33.) This is known as “floating.” (Id. at 31.) Joseph, whose national origin is Haitian, was the Nurse Manager for 8 CHC, and she supervised Eka from 2006 until she resigned on July 25, 2010. (Def. 56.1 ¶¶ 5-6, 15; Eka Def. at 8.) Joseph reported to Trevor Grazette (“Grazette”), the Director of Nursing. (Def. 56.1 ¶¶ 7-8.) After Joseph resigned, Eka was supervised by Myrtle Robinson until 2014, and then by Margaret “Peggy” O'Rourke until mid-2015. (Eka Def. at 7-10.) He is currently supervised by Susan Dietz and Metelus. (Id. at 9-11.)

         Psych Techs work one of three eight-hour shifts: 8:00 a.m. to 4:15 p.m. (the “Day Shift”), 4:00 p.m. to 12:15 a.m. (the “Afternoon Shift”), and 11:55 p.m. to 8:10 a.m. (the “Night Shift”). (Def. 56.1 ¶ 20.) Since 2006, Eka has typically worked the Afternoon Shift (Def. 56.1 ¶ 21; Eka Def. at 6). Joseph worked the Morning Shift. (Def. 56.1 ¶ at 22.) Eka works between three and six shifts per week. (Eka Pl. at 55.) He can also apply for additional shifts, including overtime, by signing up at the bottom of the monthly schedule of employee shifts. (Def. 56.1 ¶ 24; Eka Def. at 22.) Psych Techs working on 8CHC interested in signing up for extra shifts must physically write their name down on the monthly or weekly schedule, and Joseph would distribute extra shifts among those who signed up. (Def. 56.1 ¶ 26; see also Eka Dep. at 27, 33.) At times, when Eka has sought out additional shifts, his requests have been denied and those shifts have been given to other employees. (Eka Dec. ¶ 4.) At other times, Eka has been offered additional shifts that he has turned down without penalty. (Def. 56.1 ¶ 28.)

         C. Performance Reviews

         Joseph completed Eka's performance reviews from 2005 to 2010. (Def. 56.1 ¶¶ 31-35.) From 2005 to 2007, Eka received the highest rating at the time: “satisfactory.” (Def. 56.1 ¶¶ 31- 33.) In 2007, the rating system was changed to a numerical scale, from 0 to 3, with 3 the highest rating. (Def. 56.1 ¶¶ 34-35.) For 2007-2008, Joseph gave Eka an overall rating of 2.9; for 2008-2009, Eka received a 3. (Def. 56.1 ¶¶ 34-35.) In subsequent years, other managers continued to give Eka high ratings. (Def. 56.1 ¶ 37.) However, with the exception of his 2005 and 2009-2010 reviews, his supervisors noted problems in Eka's performance reviews regarding his punctuality and attendance. (Def. 56.1 ¶¶ 36-38.) Eka had received two verbal warnings and one written warning for those issues. (Def. 56.1. ¶ 39.)

         D. Joseph's Comment about Eka's National Origin & the 2008 Complaint to Brookdale Management

         Eka alleges that, during his 2007-2008 performance review meeting with Joseph on or about October 3, 2008, she made a comment about Eka's national origin, noting that Nigerians are “difficult people” or are “difficult to work with, ” and do not like to be “controlled.” (Eka Def. at 61-75; Def. 56.1 ¶ 41.) According to Eka, Joseph initially noted that he needed to improve his personal and professional development (Eka Def. at 66.) Eka voiced his disagreement with this assessment, noting that he was attending school. (Id. at 65-66.) Joseph then changed the evaluation in Eka's favor, giving him a 2.9 out of 3. (Id. at 67-68.) When they met again later to discuss the amended review, Eka alleges that Joseph made the comment about Nigerians. (Eka Def. at 67-68; Def. 56.1 ¶ 41.) When Eka told Joseph that he was offended, Joseph allegedly replied, “I don't care. It's your word against mine.” (Eka Def. at 72-75)

         In November or December 2008, Eka filed a verbal complaint with Grazette, Joseph's supervisor, about Joseph's comments. (Eka Dec. ¶ 6.) However, there is no record indicating that Grazette referred this complaint to Brookdale's Human Resources (“HR”) Department-as required by Brookdale's policy-or that there was any type of investigation.[6] (Eka Pl. at 79, 85; Pl. Ex. 5 at 213-17, 219.) Eka alleges that after he complained to Grazette, Joseph treated Eka less favorably than she had before. (Eka Dec. ¶ 7.) Joseph made it even harder for Eka to obtain additional and overtime shifts, scolded him for speaking to his colleagues about patients at shift changes and for drinking water during his shift, gave him undesirable work, did not greet him at shift changes, and selectively enforced rules against him. (Id; see also Pl. 56.1 ¶ 40; Eka Pl. at 88.)

         E. Eka's May 2009 Complaint to Brookdale Management

         Plaintiff alleges that in May 2009, he filed a written complaint of discrimination and retaliation to Grazette, stating that Joseph treated him less favorably than his co-workers who were not Nigerian. (Eka Dec. ¶ 8; Pl. 56.1 ¶ 91.) In the complaint, Plaintiff also stated that Joseph retaliated against him for making the 2008 verbal complaint to Grazette.[7] (Eka Dec. ¶ 8; Pl. 56.1 ¶ 91.) Grazette, however, did not respond to this 2009 complaint. (Eka Pl. at 81.)

         F. Eka's July 2009 Suspension

         On July 5, 2009, Joseph and Grazette suspended Eka for engaging in disruptive or inappropriate behavior and insubordination (Pl. Ex. 6), when Eka refused to float to another unit as directed by Joseph (Def. Ex. 34). The parties dispute whether Joseph had the authority to direct Eka to float to other units that evening. (Def. 56.1 ¶ 52-53; Pl. 56.1 ¶ 52-53.) That day, when Eka arrived at work for an Evening Shift, he was told by a co-worker that Joseph had directed Eka to float from 8 CHC to Snapper 5. (Def. 56.1 ¶ 51.) Joseph was not at the hospital at that time. (Def. 56.1 ¶¶ 51, 53; Def. Ex. 34.) Instead of going to Snapper 5, Eka called the nursing office to see whether there was truly a need for additional staff on Snapper 5. (Def. 56.1 ¶ 52.) When Joseph received a call from someone at the hospital that Eka refused to float, she called the hospital and spoke to Eka, directing him again to go to Snapper 5. (Def. 56.1 ¶ 52-53; Def. Ex. 34.) The phone conversation between the two became heated, and Eka admits that he “raise[d] his voice a bit so that Joseph could hear him repeatedly telling her that he would float if proper procedure/practice were followed.” (Pl. 56. ¶ 54.) According to Eka, Joseph lost her temper while they were on the phone. (Pl. 56.1 ¶ 54.) When Eka refused to follow Joseph's directions and asked that the directive come from a supervisor who was on duty, Joseph directed Eka to leave the hospital. (Def. 56.1 ¶ 56; Eka Def. at 144, 150-51; 155 (Joseph told Eka either to work at Snapper 5 or “punch out” for the Evening Shift)). The parties dispute as to whether Eka cursed at Joseph. (Compare Def. 56.1 ¶ 56 and Def. Ex. 34 (Joseph's letter to Grazette stating that Eka cursed at her) with Eka Pl. at 169 (testifying that Joseph lied about him cursing at her) and Def. Ex. 33 at ECF[8] 113 (stating in his August 3, 2009 grievance letter that he did not curse at Joseph).) Eka left the hospital, but only after another supervisor who was on duty at the time, Sonia Williams, directed him to go home. (Eka Def. at 155.) The next day, July 6, 2009, Eka was notified that he was on indefinite suspension. (Eka Def. at 144; Def. 56.1 ¶ 60; Def. Ex. 36.)

         The Union filed a grievance on Eka's behalf concerning his July 2009 suspension. (Def. 56.1 ¶ 61.) On July 24, 2009, Grazette wrote a letter to Eka requesting a written statement concerning the events precipitating his July 2009 suspension. (Def. 56.1 ¶ 62.) On June 15, 2010, a grievance hearing was held concerning the suspension. (Def. 56.1 ¶ 63.) After review, Eka's indefinite suspension was converted to a suspension for the time he was out of work, approximately six weeks. (Def. Ex. 36.)

         G. Eka's Additional 2009 Complaints of Discrimination and Retaliation

         In addition to his 2008 and May 2009 complaints, Eka made additional complaints, mainly about Joseph, to Brookdale management, and eventually filed a charge of discrimination with the EEOC (the “EEOC Charge”). (Pl. 56.1 ¶ 82; Pl. Ex. 9.)

         On July 21, 2009, Eka filed a written complaint to Brookdale's President/Chief Executive Officer, Executive Vice President/Chief Operating Officer, and Executive Vice President/Chief Financial Officer. (Pl. Ex. 7.) The complaint was entitled “Deliberate Waste of Hospital Funds” and complained about Joseph favoring some staff members and awarding shifts to Eka's co-workers but not to him. (Id. at ECF 2-3.) He stated that “[t]his is a case of discrimination.” (Id. at ECF 3.) He went on to discuss, inter alia, the amount of money Brookdale may have lost because of Joseph's decisions regarding shift allocation. (Id. at ECF 3-5.) He did not receive a response. (Pl. Ex. 8 at ECF 2.)

         On September 17, 2009, Plaintiff filed an additional complaint to the same officials, entitling it “Retaliation or Discrimination or Nepotism/Favoritism.” (Pl. Ex. 8 at ECF 2.) Eka complained that a shift available on September 10, 2009, was given to a full-time staff member instead of him. (Id.) He stated, “I have complained about [full-time staff receiving extra shifts and thus getting overtime pay] and I think I am being deliberately retaliated or discriminated against, or nepotism is at work . . . . Why am I being either retaliated, or discriminated against? I never thought I did anything wrong by blowing the whistle on everything (negative) going on.” (Id. at ECF 2-3.)

         On September 23, 2009, Brookdale's Assistant Director of Labor Relations Trina Cornet (“Cornet”) wrote a letter to Plaintiff to schedule a meeting to discuss his September 17, 2009 complaint, also indicating that Brookdale's HR Department had initiated an investigation of Eka's claims. (Pl. Ex. 10; Def. 56.1 ¶ 97.) Sometime thereafter, Cornet and Brenda Lee (“Lee”), Director of Human Resources), met with Eka to discuss his September 17, 2009 complaint (Pl. Ex. 10; Pl. Ex. 13 at ECF 3[9]). Brookdale also interviewed Joseph after receiving or in connection with Eka's complaint. (Pl. Ex. 5. at 229-31.)

         Thereafter, on or about October 2, 2009, Plaintiff submitted another complaint to Lee and Cornet, stating that Joseph required him, rather than another co-worker, to float.[10] (Pl. Ex. 12 at ECF 2-3.) He again noted that Joseph's staffing decision was unjustified because it was a “waste of funds.” (Id.) The complaint stated that Eka “believ[ed] strongly that . . . Joseph [was] retaliating and discriminating against [him].” (Id.)

         In a November 13, 2009 complaint to Cornet, Eka stated that he volunteered for an extra shift without having been told that he would be required to float to the Psych ER. (Pl. Ex. 13 at ECF 2.) When he found out that he would be floated to the Psych ER, he asked to be relieved of the shift. (Id.) The complaint stated that even when someone else volunteered to float instead of Eka, Joseph did not allow it and told the other employee to “stay out of it and [that] it wasn't their business.” (Id.) According to the letter, when Eka told Joseph that he would go speak to Grazette about it, Joseph replied “you can go to anyone, that's all you have been doing anyways”, and then refused to give Eka permission to leave the floor. (Id.) Plaintiff asserted that Joseph was harassing him and discriminating and retaliating against him. (Id.)

         On January 22, 2010, Eka filed an EEOC Charge that included allegations of employment discrimination on the basis of his national origin and of retaliation. (Pl. Ex. 9 at 2, 4.) Eka specifically noted, inter alia, Joseph's comments about Nigerians. Brookdale received a Notice of Charge of Discrimination dated September 24, 2012. (Def. Ex. 46.) By letter dated January 10, 2013, Brookdale was notified by the EEOC that Eka's charge was being transferred from the EEOC's ADR Unit to its Enforcement Unit for investigation and that Brookdale must submit its position statement or respond to Eka's allegations by February 1, 2013. (Def. Ex. 45.) On December 19, 2013, the EEOC issued a finding of probable cause on Eka's allegations. (Def. 56.1 ¶ 87.)

         In an April 2, 2010 letter to Lee and Cornet concerning his July 2009 suspension, Eka requested backpay for the period of his suspension, i.e., July 5, 2009 through August 21, 2009. (Def. Ex. 32.) Even after Joseph resigned, Eka wrote ten more letters to Brookdale's management complaining about shift assignments, discrimination, retaliation and nepotism, and patient-to-staff ratio. (Def. 56.1 ¶ 101-110.)

         H. Complaints by Other Employees About Joseph's Management Style

         Eka was not the only employee who complained about Joseph's management style and personality; non-Nigerian employees also complained. (Def. 56.1 ¶ 66-67; Def. Exs. 25, 26.) For example, Garnice Barnette, who is “from the [Caribbean] islands” as is Joseph, complained that Joseph was “not a nice person, ” a liar who disrespected her staff and treated her staff like “kids.” (Id. ¶ 67; Def. Ex. 25.) Two other employees, Virginia Buisson and Marie Cantave (“Cantave”)- both of whom are, like Joseph, Haitian-also complained about Joseph's mannerism. (Def. 56.1 ¶ 69.) Cantave complained about Joseph's threats against anyone who questioned her directives and Joseph's scheduling decisions, noting that Joseph did not allow her to switch shifts with another consenting co-worker. (Def. Ex. 26[11]; Pl. Ex. 32 (requesting backpay for the period of suspension).)

         I. Brookdale's Offers of Full-Time Employment to Eka

         At Brookdale, open bargaining-unit positions are filled based on seniority, as long as the applicant is qualified. (Pl. 56.1 ¶ 72.) Similarly, part-time Psych Techs are offered full-time positions based on seniority. (Def. 56.1 ¶ 73.) Eka was offered a full-time Psych Tech position on at least four occasions in 2008, 2010, 2014, and 2015. (Def. 56.1 ¶ 75.) He turned down those offers. (Def. 56.1 ¶ 76.) While Defendant assert that Eka did so because his other jobs conflicted with the schedule of a full-time position, Eka denies this, and instead claims that he declined these offers because “he wanted ‘something more than a psych tech position.”' (See Def. 56.1 ¶ 77, 78- 79; Eka Pl. 41-46; Pl. 56.1 ¶ 78-79.) He testified that given his high qualifications, Brookdale's offer for full-time employment as a Psych Tech was an act of retaliation for filing complaints. (Eka Pl. 41-46.)

         J. Denial of Eka's Applications For Other Positions at Brookdale

         In 2013 and 2014, after Eka received a Master's degree in Business Administration from Mercy College, he applied to approximately fourteen full-time, non-union jobs at Brookdale. (Simpson Decl. ¶ 16; Pl. 56.1 ¶ 111; Eka Pl. at 344-47.) Plaintiff was not hired for any of them. (See Def. 56.1111-24.) Specifically, Eka applied for the following: Payroll Auditor; Inpatient Accounting Manager; Ambulatory Care Manager; Accounts Payable - Special Projects Manager; Laboratories Administration - Office Manager; Building Services Supervisor - Housekeeping; Information Systems, Epic Report Writer; Surgery Office Manager; Accounts Payable - Billing Manager; Auditor-Finance; Junior Treasury Clerk; Program Associate - Treatment for Life; Cardiac Catheterization Laboratory Supervisor; and Transportation Supervisor. (Simpson Decl. ¶ 16; Pl. 56.1 ¶ 111; Eka Pl. at 344-47.)

         Of the fourteen jobs for which he applied, Plaintiff received one interview, for a Transportation Supervisor position. (Eka Pl. at 341, 344.) According to Eka, the interviewer “guaranteed” that Eka would receive one of the three open positions, and told Eka that the interviewer's hiring recommendation would be taken to the vice president for approval. (Eka Pl. at 344-345.) But when Eka ran into the interviewer weeks later, the interviewer said that he “would [have] love[d] to hire [Eka]” but that his “hands [were] tied” because of Eka's previous complaints. (Id. at 346-47.)

         II. Procedural History

         Plaintiff filed this suit on November 3, 2014. (Dkt. 1, Compl.) Defendant filed its answer on January 7, 2015. (Dkt. 10.) The Defendant's motion for summary judgment was fully briefed on August 12, 2016. (Dkt. 37.)

         DISCUSSION

         I. Summary Judgment Standard

         A defendant seeking summary judgment must establish that “there is no genuine dispute as to any material fact, ” and that it is thus “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Material” facts are facts that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Genuine” disputes exist “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “The moving party bears the burden of establishing the absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). Once the moving party has met this initial burden, the nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (emphasis added; quotations omitted). The nonmoving party cannot avoid summary judgment simply by relying “on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citations and quotations marks omitted). In determining whether there are genuine disputes of material fact, the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (citation and quotation marks omitted). “Summary judgment is appropriate only ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'” Donnelly v. Greenburgh Cent. Sch. Dist. No. 8, 691 F.3d 134, 141 (2d Cir. 2012) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The Second Circuit has “explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment [in employment discrimination cases] because the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication.” Thompson v. Kaufman's Bakery, Inc., No. 03-CV-340S, 2005 WL 643433, at *3 (W.D.N.Y. March 16, 2005) (citation and quotation marks omitted); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (noting that “direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions” (citation and quotation marks omitted)). Nevertheless, the “summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.” Meiri v. Dacon, 759 F.2d 998, 998 (2d Cir. 1985); see also Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”); Marmulszteyn v. Napolitano, 08-CV-4094, 2012 WL 3645776, at *5 (E.D.N.Y. Aug. 22, 2012) (“Although the Second Circuit has stated that district courts should be particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question, summary judgment in such a case may still be warranted if the plaintiff relies on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct.” (internal quotations and alterations omitted) (quoting Figueroa v. N.Y. Health and Hosps. Corp., 500 F.Supp.2d 224, 227-28 (S.D.N.Y. 2007))). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224.

         II. Plaintiff's Claims [12]

         A. Discrimination Claims Pursuant to Title VII and the NYSHRL

         The Court analyzes Plaintiff's Title VII and NYSHRL discrimination claims using the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McGill v. Univ. of Rochester, 600 F. App'x 789, 790 (2d Cir. 2015) (summary order) (applying McDonnell Douglas to both Title VII and NYSHRL discrimination claims). McDonnell Douglas has “established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory-treatment cases.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (“Hicks”). Under this framework, to defeat a motion for summary judgment, the plaintiff must first establish a prima facie case of discrimination by showing (1) membership in a protected class; (2) qualification for the job; (3) an adverse employment action; and (4) circumstances surrounding the adverse employment action that give rise to an inference of discrimination. Abrams v. Dep't of Public Safety, 764 F.3d 244, 251-52 (2d Cir. 2014). The plaintiff's burden of establishing a prima facie case is “not onerous, ” Tex. Dep't of Cmty. Affairs. v. Burdine (Burdine), 450 U.S. 248, 253 (1981), and “minimal, ” at best, Hicks, 509 U.S. at 506.

         If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises, and the burden shifts to the defendant to proffer a legitimate, non-discriminatory justification for its adverse employment action against the plaintiff. Hicks, 509 U.S. 506-07; see Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing McDonell Douglas, 411 U.S. at 802). Even though the defendant has the burden to produce evidence of their nondiscriminatory reasons, such evidence is not subject to attack by way of a “credibility assessment.” Hicks, 509 U.S. at 509; see also Burdine, 450 U.S. at 254 (noting that “defendant need not persuade the court that [an employment action] was actually motivated by the proffered reasons”). Once the employer comes forward with a non-discriminatory explanation, “the presumption ‘drops out of the picture' and the McDonnell Douglas framework ‘is no longer relevant.'” Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015) (quoting Hicks, 509 U.S. at 510-11). Then, the final and ultimate burden is on the plaintiff to offer evidence that the defendant's reason is a mere pretext for intentional discrimination. Id. at 307-08 (“[T]he plaintiff must demonstrate that the proffered reason was not the true reason (or in any event not the sole reason) for the employment decision, which merges with the plaintiff's ultimate burden of showing that the defendant intentionally discriminated against her.”); see also Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). At this last stage, the “plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false[.]” Weinstock, 224 F.3d at 42 (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (internal quotations omitted)); see Kirkland, 760 F.3d at 225 (2d Cir. 2014) (citing Terry, 336 F.3d at 138). “To get to the jury, [i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination.” Weinstock, 224 F.3d at 42 (citing Hicks, 509 U.S. at 519). Although the McDonnell Douglas framework shifts the burden of production between the plaintiff and the defendant, at all times the burden of persuasion rests with the plaintiff to demonstrate discrimination, Hicks, 509 U.S. at 518, and the ultimate issue to be determined is “discrimination [or lack thereof].” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

         1. Step 1: Prima Facie case

         Brookdale does not dispute the first two elements of Plaintiff's prima facie case-that Eka belongs to a protected group based on his Nigerian national origin and that he is qualified for his current job. However, the parties dispute whether Plaintiff has demonstrated the third and fourth elements-that he suffered adverse employment actions and that such actions occurred under circumstances giving rise to an inference of discrimination. For the reasons set forth below, the Court finds that Plaintiff has established a prima facie case of discrimination.

         a. Adverse Employment Action

         An employee sustains an “adverse employment action” if he “endures a materially adverse change in the terms and conditions of employment. . . . An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citation and quotation marks omitted); see also Tolbert v. Smith, 790 F.3d 427 (2d Cir. 2015). Examples that may constitute adverse employment actions include “termination of employment, demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Sanders v. N.Y. City Human Res. Admin, 361 F.3d 749, 755 (2d Cir. 2004) (quoting Terry, 336 F.3d at 138).

         Here, the adverse employment actions of which Eka complains are his July 2009 suspension and “the ongoing campaign to limit Plaintiff's additional and overtime shifts.”[13] (Pl. Opp. at 13.) He contends that both of these adverse employment actions occurred under circumstances that give rise to an inference of discrimination.

         i. July 2009 Suspension

         Plaintiff's 2009 six-week suspension without pay, which is undisputed (Def. 56.1 ¶¶ 60, 100), was a materially adverse change in the conditions of his employment. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (finding suspension without pay for one week sufficient to constitute adverse employment action for purposes of establishing prima facie retaliation claim); St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 306 (E.D.N.Y. 2014) (finding suspension without pay while employee was investigated for fraud constituted adverse employment action for Title VII discrimination claim); Hill v. Rayboy-Brauerstein, 467 F.Supp.2d 336, 355-56 (S.D.N.Y. 2006) (“Plaintiff's ten-day suspension [without pay] is an adverse employment action, as it is a material alteration of Plaintiff's working conditions.”); Hughes v. City of Rochester, 12-CV-6112, 2016 WL 4742321, at *6 (W.D.N.Y. Sept. 12, 2016) (finding, in a Title VII disparate impact case, that an employer's decision to place plaintiff on unpaid leave was an adverse employment action).

         ii. Denial of Extra Shifts & Overtime

         Denial of extra shifts and overtime also constitutes an adverse employment action. See Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (to constitute an “adverse employment action, ” plaintiff must present evidence that the action deprived plaintiff of some “tangible job benefits such as compensation, terms, conditions, or privileges of employment” (citation and quotation marks omitted)); see also Duzant v. Elect. Boat Corp., 81 F. App'x 370, 372 (2d Cir. 2003) (vacating district court's granting of summary judgment to defendant and remanding where plaintiff alleged that all other employees in his department received overtime hours while he, the only African American, did not); Mclean v. Metro. Jewish Geriatric Ctr., No. 11-CV-3065, 2013 WL 5744467, at *10 (E.D.N.Y. Oct. 23, 2013) (noting that denial of “opportunities to earn overtime pay, if proven, could constitute an adverse employment action because it resulted in a loss in compensation”).

         Plaintiff's evidence regarding this adverse employment action consists of: (1) his own assertion that Joseph denied him extra shifts and overtime-found in his deposition testimony, the declaration he has submitted in opposition to the instant motion, and two of his complaint letters; (2) a printed one-week staffing schedule, which shows that Eka signed up for three extra shifts that were instead given to his non-Nigerian co-workers; and (3) records reflecting the increase in the total number of shifts Eka received once Joseph was no longer responsible for staffing decisions.[14](See Pl. Opp. at 12-13; Pl. Ex. 2; see also Dkt. 35 (“Simpson Dec.”) at ECF 1.) Eka stated, in his declaration, that “the lion's share of shifts . . . went to [his] fellow Psych Techs from the West Indies.” (Eka Dec. ¶ 4.)[15] Furthermore, Eka also asserts that the number of shifts that he received increased by 35% once Joseph was no longer responsible for staffing decisions.[16] (Pl. Opp. at 13.) Although Defendant contests Eka's calculation of the increase, [17] even accepting Defendant's calculation, the evidence shows a trend of increased shifts over time that a jury could find supports Eka's claim that once Joseph left, he was able to obtain more shifts.[18]

         Recognizing that Plaintiff's burden to establish a prima facie case of discrimination is not demanding, the Court finds that this evidence is sufficient to establish the third element of adverse action. See Abdu-Brisson, 239 F.3d at 467 (“[P]laintiff's burden of establishing a prima facie [Title VII] case is de minimis.”); Mazyck v. Metro Transp. Auth., 893 F.Supp.2d 574, 589 (S.D.N.Y. 2012) (“[P]laintiff's allegation that he was denied opportunities for overtime satisfies the third prong of his prima facie case, as denial of overtime can constitute an adverse employment action.” (emphasis added)).

         b. Inference of Discrimination

         An adverse employment action can be shown to have occurred under circumstances giving rise to an inference of discrimination through evidence of, inter alia, “the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312 (citation and quotation marks omitted).

         Plaintiff contends that both adverse employment actions-the 2009 suspension and denial of extra shifts and overtime-occurred under circumstances that give rise to an inference of discrimination. Plaintiff's evidence of discriminatory intent falls into three categories: (1) Joseph's comments to Eka about Nigerians, (2) Brookdale's repeated failure to investigate Plaintiff's numerous complaints, and (3) instances of disparate treatment, where non-Nigerians (i.e., all other employees) were more favorably treated. Focusing only on the 2009 suspension as a potential adverse employment action, Defendant asserts that Plaintiff cannot establish that the suspension occurred under circumstances giving rise to an inference of discriminatory intent because Joseph's remarks about Nigerians were made nine months before Eka's suspension. As explained below, the Court finds that Plaintiff has produced enough evidence to meet his de minimis burden of raising an inference of discriminatory intent by Joseph. Cf. Graham v. Long Island R.R., 230 F.3d 34, 41-42 (2d ...


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