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Misas v. North Shore-Long Island Jewish Health System

United States District Court, S.D. New York

April 27, 2017



          ANDREW L. CARTER, JR. United States District Judge.

         Plaintiffs Eliana Misas and Rhonda Mcintosh bring this action against North Shore-Long Island Jewish Health System and its former employee, Julio Cardoza. Before the Court is Defendants' motion for summary judgment. Defendants argue that judgment should be granted in their favor on all of Plaintiffs' claims. Plaintiffs subsequently withdrew their claims for intentional infliction of emotional distress; negligent infliction of emotional distress; negligent hiring, retention, and supervision; and slander, leaving only claims for sexual harassment and retaliation in violation of Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. For the reasons that follow, Defendants' motion is granted in part and denied in part.


         I. Factual Background

         Plaintiffs Eliana Misas and Rhonda Mcintosh both worked as Registrars in the Emergency Room of Lenox Hill Hospital, a member hospital of Defendant North Shore-Long Island Jewish Health System ("North Shore" or the "Hospital"). ECF No. 90 (Defendants' Rule 56.1 Statement ("Defs' 56.1 Stmt.")), at ¶¶ 1, 5-8. The Hospital hired Mcintosh as a part-time employee on August 27, 2010, working 14 hours per week. Defs' 56.1 Stmt. ¶¶ 5-6. Misas was hired as a full time employee on March 19, 2012. Id. ¶¶ 7-8. While the Hospital terminated Misas' employment in June 2013, Mcintosh remains employed by the Hospital, albeit at a different facility. Id. ¶¶ 51-54.

         During the time that Plaintiffs worked as Emergency Room Registrars, Defendant Julio Cardoza and non-party Omar Edwards served as their supervisors. Id. ¶¶ 9-10. Edwards worked as the weekday supervisor until his employment ended in July 2012, while Cardoza worked as the evening and weekend shift supervisor until he resigned in October 2013. Id. ¶¶ 9-10, 34, 72. Plaintiffs contend that Edwards and Cardoza subjected them to sexual harassment on a regular basis during the course of their employment. ECF No. 101 (Plaintiffs' Counterstatement to Defendants' Rule 56.1 Statement ("Pis' 56.1 Resp.")), at¶¶ 75-85, 88-92. Defendants dispute this characterization as unsupported by the evidence. ECF No. 106 (Defendants' Counterstatement to Plaintiffs' Rule 56.1 Statement ("Defs' 56.1 Resp.")), at¶¶ 75-85, 88-92.

         On July 18, 2012, Plaintiffs sent their union representative a written statement in which they claimed that they went into Edwards' office and "moved the [computer] mouse by mistake, " revealing files containing "plenty of provocative pictures." Defs' 56.1 Stmt. ¶ 27; ECF No. 89 (Affidavit of Emily Weisenbach ("Weisenbach Aff.")), Ex. M (Plaintiffs' Letter), at 1. In the letter, Misas further explained that Edwards previously had made "complete [ly] inappropriate comments about [her] weight [and her] breasts." Weisenbach Aff., Ex. M at 1. Prior to their July 2012 letter, neither Misas nor Mcintosh had complained about sexual harassment by Edwards or any other Hospital employee. Defs' 56.1 Stmt. ¶¶ 24, 26. While they did not clarify their complaint back in time, Plaintiffs now contend-as they did in their August 2013 charges filed with the United States Equal Employment Opportunity Commission ("EEOC")-that they did not come across the "provocative pictures" by accident; rather, Cardoza brought Plaintiffs into Edwards' office and showed them the pictures. Defs' 56.1 Stmt. ¶ 60; Pis' 56.1 Resp. ¶¶ 78-80; ECF No. 88 (Affidavit of Traycee Ellen Klein ("Klein Aff.")), Exs. A (Misas EEOC Charge), B (Mcintosh EEOC Charge). However, Cardoza exhorted Plaintiffs not to mention him in their written complaint and threatened them with retaliation. Pis' 56.1 Resp. ¶ 80.

         Upon receiving Plaintiffs' July 2012 letter, Emily Weisenbach, a "leader" in the Human Resources Department, launched an investigation which included interviewing Misas and seeking written statements from Mcintosh and others. Defs' 56.1 Stmt. ¶¶ 20, 28, 31; Weisenbach Aff, Ex. N (Weisenbach Investigative File). However, because Plaintiffs' complaint mentioned Edwards and not Cardoza, Weisenbach's investigation focused only on Edwards. Defs' 56.1 Stmt. ¶ 30. Moreover, during Weisenbach's investigation, Plaintiffs did not mention any involvement by Cardoza or other problematic conduct by him. Id. ¶ 32. After the investigation, the Hospital asked Edwards to resign, which he did, on July 27, 2012. Id. ¶ 34.

         Misas continued to work at the Hospital until June 21, 2013. Id. ¶ 51. The Hospital terminated her employment after it learned that she had been making copies of her timesheets contrary to Hospital policy and "generally-accepted standards of professional conduct." Id. ¶¶ 46-51. Misas now admits that she made copies of her timesheets and then lied to her supervisors about that fact, but explains that she did so only after learning that Cardoza had altered her timesheets in an effort to get her in trouble for arriving late to work. Pis' 56.1 Resp. ¶¶ 46-51. Misas explains that she was concerned "Cardoza would likely fabricate further evidence against [her], " and therefore "made copies of [her] timesheets before Cardoza had a chance to alter them." ECF No. 100 (Affidavit of Eliana Misas ("Misas Aff.")), ¶ 21.

         Mcintosh still works at a facility associated with the Hospital. As of December 2015, Mcintosh became a full-time employee at the Manhattan Eye, Ear, and Throat Hospital where she earns a higher hourly wage than she did at the Lenox Hill Hospital. Defs' 56.1 Stmt. ¶¶ 52-54. However, Mcintosh now asserts that, prior to this promotion and transfer, Cardoza retaliated against her by denying her opportunities to work overtime and for transfers to other departments. Pis' 56.1 Resp. ¶ 94; ECF No. 99 (Affidavit of Rhonda Mcintosh ("Mcintosh Aff.")), at ¶ 25.

         Approximately two months after the Hospital terminated Misas' employment, both Misas and Mcintosh filed charges of discrimination with the EEOC. Defs' 56.1 Stmt. ¶¶ 58-59; Klein Aff, Exs. A-B. In those charges, filed on August 20, 2013, Plaintiffs for the first time explained that Cardoza was the one who showed them the pictures on Edwards' computer. Id. ¶ 60. Plaintiffs also made other allegations regarding Edwards' and Cardoza's behavior that they had not previously raised with anyone at the Hospital. They explained that, during the course of their employment, they were "continually exposed to harassment" by Edwards and Cardoza. Klein Aff, Ex. A at 1, Ex. B at 1. They also described specific incidences of harassment. For example, Mcintosh described two inappropriate text message conversations with Cardoza. Defs' 56.1 Stmt. ¶¶ 61-66; Klein Aff, Ex. B at 3, Ex. C (Text Messages). In one conversation taking place on September 21, 2012, Cardoza told Mcintosh that he would "spank [her]." Klein Aff, Ex. C at 2. In another conversation, on November 7, 2012, in response to text messages from Mcintosh that she was feeling unwell, Cardoza wrote that she needed an "italian Spanish [sic] sausage all the way." Id. at 1. Misas described comments Edwards made about her clothes and breasts, and asserted that Cardoza also "regularly made inappropriate comments." Klein Aff., Ex. A at 1-2.

         In opposition to Defendants' motion for summary judgment, Plaintiffs have provided additional examples of sexual harassment by Edwards and Cardoza. Both state that Cardoza made "inappropriate jokes and comments of a sexual nature" to them "practically daily." Mcintosh Aff. ¶ 6; Misas Aff. ¶ 9. They also each describe an incident occuring in November 2012, in which Cardoza implied that Misas and Mcintosh were prostitutes. Mcintosh Aff. ¶ 8; Misas Aff. ¶ 10. On another occasion, Cardoza told Misas, who is Colombian, that "all Colombians are whores." Misas Aff. ¶ 11. Misas also describes an interaction with Cardoza in May 2013, in which he made graphic comments about her underwear. Id. ¶ 13. Finally, Misas explains that, on multiple occasions, Edwards commented on her physique and leered at her or tried to kiss her. Id. ¶¶ 3-4.

         II. Procedural Background

         Plaintiffs initiated this action in November 2014 and, since that time, it has been host to innumerable disputes between the parties. Relevant here, shortly after the Court set a date for trial, Defendants sought leave to make a motion for summary judgment. ECF No. 79. The Court granted Defendants leave and they so moved. ECF Nos. 87 (Motion), 88 (Klein Aff), 89 (Weisenbach Aff), 90 (Defs' 56.1 Stmt.), 92 ("Defs' Memo."). Plaintiffs opposed the motion, submitting their counter-statement of facts and affidavits from Misas and Mcintosh. ECF Nos. 98 ("Pis' Memo."), 99 (Mcintosh Aff), 100 (Misas Aff), 101 (Pis' 56.1 Resp.). Defendants have replied, and the Court considers the motion fully submitted. ECF Nos. 104 (Reply Affirmation of Traycee Ellen Klein ("Klein Reply Aff.")), 105 (Reply Affidavit of Emily Weisenbach ("Weisenbach Reply Aff.")), 106 (Defs' 56.1 Resp.), 107 ("Defs' Reply Memo.").


         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Material facts are those that may affect the outcome of the case under governing law. Id. at 248. An issue of fact is "genuine" when a reasonable finder of fact could render a verdict in favor of the nonmoving party based on the record as a whole. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         In deciding a motion for summary judgment, "the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986) (citing Liberty Lobby, 475 U.S. at 246-50); accord Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (court's role "is to identify factual issues, not to resolve them") (citation and internal quotation marks omitted).

         "The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists." Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (citation omitted). In opposing the motion, the non-moving party "may not rest upon the mere allegations or denials of his pleading." Liberty Lobby, 477 U.S. at 248 (citation and internal quotation marks omitted). Rather, he must "must set forth specific facts showing that there is a genuine issue for trial, " id., which must be "admissible in evidence, " Fed.R.Civ.P. 56(c)(4). "[C]onclusory statements, conjecture, and inadmissible evidence" will not defeat a motion for summary judgment. ITCLtd. v. Punchgini, Inc., 482 F.3d 135, 151 (2d Cir. 2007) (citation omitted).


         III. Sexual Harassment Claims

         Both Plaintiffs bring claims for sexual harassment arising out of their interactions with former North Shore employees Cardoza and Edwards. Plaintiffs allege that their interactions with Cardoza and Edwards constituted a hostile work environment based on their sex in violation of Title VII, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Title VII makes it an "unlawful employment practice" for any employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of ...

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