United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER United States District Judge.
Mark Canady (“plaintiff”) brings two actions
(13-CV-6290 and 14-CV-6264, which have been consolidated)
(“the 2013 consolidated case”) against the
University of Rochester (the “University”) and
1199 SEIU Healthcare Workers East (the “Union”),
and a third action (15-CV-6285) (the “2015 case”)
against the University alone, alleging that the defendants
subjected him to race-based discrimination and retaliation,
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”) and the
New York Human Rights Law, N.Y. Exec. Law §290 et seq.
defendants have filed motions for summary judgment seeking
dismissal of the complaints in each of plaintiff's
pending cases against them (13-CV-6290, Dkt. #55 and #56;
15-CV-6285, Dkt. #25). For the reasons that follow, all three
motions are granted, and the complaints in each matter are
AND PROCEDURAL BACKGROUND
with the underlying facts, summarized here, is presumed.
Plaintiff, who is of African-American descent, was initially
hired by the University in 2008 as a Perioperative Support
Associate (“PSA”) at Strong Memorial Hospital.
Among other things, PSAs assist clinical staff with the
cleaning and preparation of surgical rooms and the transport
undisputed that plaintiff's employment as a PSA was
peppered with disciplinary warnings and periodic meetings
between plaintiff and his supervisors concerning allegations
of unprofessional and inappropriate workplace behavior by
plaintiff toward his coworkers. These included: (1) a
February 7, 2011 counseling memorandum to plaintiff from the
University, concerning a comment by plaintiff that a coworker
believed to be threatening; (2) a March 23, 2011 meeting with
plaintiff concerning complaints by two female staff members
that plaintiff had made inappropriate comments toward them;
(3) a March 30, 2012 meeting concerning allegedly
inappropriate comments made by plaintiff to a student
employee; (4) a May 10, 2012 written warning concerning
plaintiff's failure to sign in and out for his break, and
abrasive and/or insubordinate conduct toward coworkers who
requested assistance with moving equipment; (5) discussions
concerning a July 20, 2012 altercation with a nurse in which
plaintiff refused to respond to inquiries about the status of
a surgical room and yelled, “don't harass me, you
liar”; and (6) a November 19, 2012 five-day suspension
after one coworker complained that plaintiff was repeatedly
subjecting her to unwanted advances even after she asked him
to stop, and a second coworker complained that plaintiff was
lurking in certain areas of the hospital and waiting for her,
asking invasive questions about her husband, and responding
aggressively when she asked him not to touch her. Plaintiff
grieved the November 2012 five-day suspension, and the Union
and University resolved that grievance via a written
“Final Letter of Expectations” which awarded
plaintiff one day of back pay, ended the suspension, and
cautioned plaintiff about the need to maintain professional,
ethical relationships with coworkers.
on July 8, 2013, a verbal altercation took place in which
plaintiff accused a coworker of lying about having paged him,
and shouted that his supervisors were “corrupt”
and that “this place sucks.” The July 8, 2013
incident was investigated by the University, and after
reviewing witness accounts of the incident and
plaintiff's disciplinary history, the University
terminated plaintiff's employment.
Union grieved plaintiff's termination pursuant to the
terms of his collective bargaining agreement. The grievance
was denied and the matter proceeded to arbitration. After a
two-day hearing, at which plaintiff was represented by the
Union, the arbitrator found that the University had
improperly accelerated the disciplinary continuum, and should
have placed plaintiff on a disciplinary suspension rather
than terminating his employment. The arbitrator ordered that
the time that had passed since plaintiff's termination
should be considered a disciplinary suspension without pay,
and that he should be reinstated - albeit in a different
department - after completing an anger management program.
completed the required anger management program, and returned
to work on July 31, 2014 as a Unit Support Assistant in the
October 2, 2015, plaintiff was walking by a treatment room in
the Emergency Department and overheard an exchange between a
patient who was resisting being discharged, and two nurses.
He apparently attempted to intervene, yelling into the room
and asking the patient for his name and other information.
Members of the University's Public Safety Department
responded and informed plaintiff that he was “not
supposed by be in [that] area [of the hospital].”
Plaintiff later testified that he believed the patient to be
in distress and was attempting to assist. When the University
investigated the incident, Emergency Department staff members
stated that they were concerned that plaintiff's actions
in asking the patient for information were initiated without
a full appreciation of the situation, and could have led to a
violation of the Health Insurance Portability and
Accountability Act. The University suspended plaintiff with
pay during its investigation, and ultimately determined that
plaintiff should not be disciplined.
issues arose concerning plaintiff's failure to follow
Emergency Department safety procedures concerning patient
locations. Patient locations are entered in an electronic
medical records system, “eRecord, ” and are
logged whenever a patient is moved from one room to another.
In order to prevent misidentification of a patient, hospital
staff employ a “double identification” procedure
when transporting patients, asking for two pieces of
identifying information from the patient (e.g., name and
birthdate), and comparing that information with the
patient's medical chart in eRecord.
February 26, 2015, plaintiff recorded in eRecord that a
severely ill patient had been moved from the waiting room to
a treatment room when in fact he had not, causing a serious
delay in that patient's care. Plaintiff was counseled
about using the proper procedures for identifying patients
and recording patient locations. However, on March 24, 2015,
plaintiff was observed by Nurse Manager Betsy Halpin
(“Halpin”) failing to use the double
identification procedure. On March 26, 2015, plaintiff again
erroneously recorded a patient as having been transferred to
a treatment room when the patient was still in the waiting
room. He and several union representatives met with Halpin
and other hospital staff to discuss the incident. Although
plaintiff claimed that he had not made the incorrect eRecords
entry, after investigating the incident, the University
determined that plaintiff had made the entry, and suspended
plaintiff for five days without pay. The University and the
union later entered into an agreement that plaintiff would be
transferred to a new position that did not directly involve
him in patient care. Plaintiff was thereafter transferred to
the position of full-time stock keeper in the Hospital store,
at the same rate of pay.
Summary Judgment in Discrimination Cases
judgment will be granted if the record demonstrates that
“there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed.R.Civ.P. 56(c); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Although
courts should be cautious about granting summary judgment in
cases where motive, intent or state of mind are at issue, a
common component of discrimination actions, see Dister v.
Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.
1988); Montana v. First Federal Savings and Loan
Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.
1989), “the salutary purposes of summary judgment -
avoiding protracted, expensive and harassing trials - apply
no less to discrimination cases than to... other areas of
litigation.” Meiri v. Dacon, 759 F.2d 989, 998
(2d Cir.1985) (summary judgment rule would be rendered
sterile if mere incantation of intent or state of mind would
act as a talisman to defeat an otherwise valid motion).
See also Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000), (quoting St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (trial courts
should not “treat discrimination differently from other
ultimate questions of fact”)).
Court notes that despite being represented by counsel,
plaintiff's responses to the pending motions do not
include Statements of Material Facts as required by Local
Rule 56(a)(2). Although plaintiff's response in the 2015
case does include a sworn affidavit with exhibits,
plaintiff's response in the 2013 consolidated case
attaches no evidence in admissible form, but consists of a
combination of unsigned and unsworn statements of unclear
authorship (and in some cases, bizarre content),
photocopies of unauthenticated documents and correspondence.
(13-CV-6290, Dkt. #65, #66, #68, #69). Nonetheless, in the
interest of affording the plaintiff every favorable
inference, the Court has reviewed all of the material
submitted by plaintiff. While the bulk of plaintiff's
submissions are not relevant to the bases for the motions
before the Court, to the extent that relevant evidence has
been presented, the Court has considered it.
Plaintiff's Claims in the 2013 Consolidated Case
Discrimination Claims Against the University
claims of employment discrimination pursuant to Title VII and
the NYHRL are subject to the burden-shifting analysis
articulated in McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973). First, plaintiff must establish a prima
facie case of discrimination by demonstrating: (1) membership
in a protected class; (2) qualification for, and satisfactory
performance in, the job at issue; and (3) an adverse
employment action, occurring under (4) circumstances giving
rise to an inference of discrimination. See Collins v.
New York City Transit Authority, 305 F.3d 113, 118 (2d
Cir. 2002). Once plaintiff has established a prima facie
case, the burden shifts to defendant(s) to articulate a
legitimate, nondiscriminatory reason for the adverse
employment action. See James v. New York Racing
Ass'n, 233 F.3d 149, 154 ...