United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR. United States District Judge.
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.
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.
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.
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.
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.
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.")), ¶
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.
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.
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.
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.").
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).
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).
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).
Sexual Harassment Claims
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