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Canady v. Union 1199

United States District Court, W.D. New York

May 22, 2017

MARK CANADY, Plaintiff,
U OF R, Defendant.


          DAVID G. LARIMER United States District Judge.

         Plaintiff 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. (“NYHRL”).

         The 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 dismissed.[1]


         Familiarity 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 of patients.

         It is 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.

         However, 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.

         The 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.

         Plaintiff completed the required anger management program, and returned to work on July 31, 2014 as a Unit Support Assistant in the Emergency Department.

         On 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.

         Thereafter, 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.

         On 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.


         I. Summary Judgment in Discrimination Cases

         Summary 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”)).

         The 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), [2] and 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.

         II. Plaintiff's Claims in the 2013 Consolidated Case

         A. Discrimination Claims Against the University

         Plaintiff's 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 ...

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