United States District Court, E.D. New York
Michael G. O'Neill Office of Michael G. O'Neill,
Attorney for Plaintiffs
J. Clark Emily M. Tortora Venable LLP Rockefeller Center
Attorneys for Defendants
M. AZRACK, UNITED STATES DISTRICT JUDGE
Jose Baby (“JB”) and William Baby
(“WB”), who were both born in India and have a
common South Asian ethnicity, allege that defendants Nassau
Health Care Corporation (“NHCC”) and Michael
Gonzalez discriminated against them based on their
race/ethnicity and national origin in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. Section 2000e et seq.; the Civil Rights Act
of 1866, 42 U.S.C. Section 1981 (“Section 1981”);
and 42 U.S.C. Section 1983 (“Section 1983”). The
Court referred defendants' motion for summary judgment to
the Honorable Gary R. Brown, who issued a report and
recommendation (the “R&R”) recommending that
defendants' motion be granted on JB's claims, but
denied on WB's claims. JB and the defendants filed timely
objections to the R&R. For the reasons stated below, the
Court concludes that defendants are entitled to summary
judgment on the claims of both JB and WB.
with the R&R, the parties' objections, and underlying
motion papers is assumed.
Standard for Reviewing a Magistrate Judge's Report
reviewing a magistrate judge's report and recommendation,
the court must “make a de novo determination
of those portions of the report or . . . recommendations to
which objection[s] [are] made.” 28 U.S.C. §
636(b)(1)(C); see also Brown v. Ebert, No.
05-CV-5579, 2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006).
The court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). Those
portions of a report and recommendation to which there are no
specific reasoned objection are reviewed for clear error.
See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51
Court has reviewed the portions of the R&R, to which no
party objected, for clear error. Finding no such error, the
Court adopts those portions of the R&R as the decision of
the Court. The Court has considered the portions of the
R&R to which JB and the defendants objected de
novo. The Court's de novo review of these
objections is discussed in more detail below.
R&R recommended that defendants' motion for summary
judgment be denied with respect to WB's claims.
Defendants objected to this recommendation. WB did not submit
a response to defendants' objection.
critical question is whether, at the third step of the
McDonnell Douglas analysis, WB offered sufficient
evidence for a reasonable jury to infer that Gonzales's
purported rationale for terminating WB was a pretext for
purposes of this Order, the Court assumes that both JB and WB
have established a prima facie case. Once a plaintiff has
established a prima facie case, the burden then shifts to the
employer to articulate a legitimate, non-discriminatory
reason for its action.
plaintiff then has the opportunity to prove ‘by a
preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were
a pretext for discrimination.'” Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107,
123 (2d Cir. 2004) (quoting Texas Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
“[T]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.”
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
“[A] reason cannot be proved to be a ‘pretext for
discrimination' unless it is shown both that the reason
was false, and that discrimination was the real reason”
for the employer's decision. St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
plaintiff “may attempt to establish that he was the
victim of intentional discrimination ‘by showing that
the employer's proffered explanation is unworthy of
credence.'” Reeves, 530 U.S. at 143
(quoting Burdine, 450 U.S. at 256); see also
Taylor v. Family Residences and Essential Enters., Inc.,
No. 03-CV-6122, 2008 WL 268801, at *8 (E.D.N.Y. Jan. 30,
2008) (“[A plaintiff] may show pretext by demonstrating
such weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the
asserted nondiscriminatory reasons.” (citations and
internal quotation marks omitted)). However, “[it] is
well settled that the mere fact that an employee disagrees
with an employer's evaluation of that employee's
misconduct or deficient performance, or even has evidence
that the decision was objectively incorrect, does not
necessarily demonstrate, by itself, that the employer's
proffered reasons are a pretext for termination.”
Grant v. Roche Diagnostics Corp., No. 09-CV-1540,
2011 WL 3040913, at *11 (E.D.N.Y. July 20, 2011) (quoting
Kalra v. HSBC Bank USA, N.A., 567 F.Supp.2d 385, 397
appropriate circumstances, the trier of fact can reasonably
infer from the falsity of the [employer's] explanation
that the employer is dissembling to cover up a discriminatory
purpose.” Reeves, 530 U.S. at 147. Where a
plaintiff offers evidence of pretext, courts must take a
“case-by-case approach” and examine “the
entire record to determine whether the plaintiff could
satisfy his ‘ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against
the plaintiff.'” Schnabel v. Abramson, 232
F.3d 83, 90 (2d Cir. 2000) (quoting Reeves, 530 U.S.
at 143). Whether summary judgment is appropriate depends on
“a number of factors, ” including “the
strength of the plaintiff's prima facie case, the
probative value of the proof that the employer's
explanation is false, and any other evidence that supports
the employer's case and that properly may be
considered” on a motion for summary judgment.
Reeves, 530 U.S. at 148-49. As the Court in
Reeves noted, even if “the plaintiff has
established a prima facie case and set forth sufficient
evidence to reject the defendant's explanation, ”
judgment as a matter of law may still be appropriate, where,
for instance, “the record conclusively revealed some
other, nondiscriminatory reason for the employer's
decision, or if the plaintiff created only a weak issue of
fact as to whether the employer's reason was untrue and
there was abundant and uncontroverted independent evidence
that no discrimination had occurred.” Id. at
ultimately prove that his race, ethnicity, and/or national
origin was a motivating factor behind his termination.
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 85 (2d Cir. 2015).
Court concludes that WB cannot show that the reasons
proffered by Gonzales for WB's termination are
pretextual. Moreover, even assuming arguendo, that
there is a factual dispute about pretext, no reasonable jury
could conclude that this was a pretext for discrimination.
WB Cannot Show Pretext
reciting the relevant factual background, the R&R
Gonzalez became W. Baby's supervisor shortly after W.
Baby started at NHCC. Because their shifts did not wholly
overlap, Gonzalez only infrequently observed W. Baby's
performance. As a result, he often relied on direct
observations of Stephaney Lewis, the [Central Sterile
Department (“CSD”)] employee who had the most
seniority on W. Baby's shift. Gonzalez testified that in
their communications, Lewis alerted Gonzalez to what she
believed to be W. Baby's performance deficiencies,
including his failure “to prioritize the trays
according to the needs of the OR.” On one occasion,
Gonzalez instructed Lewis to assign W. Baby to “prep
and pack” trays, with the intent that he would extend
his shift by two to three hours to observe W. Baby perform
the task. According to Gonzalez, his observation confirmed
Lewis's account. W. Baby testified that at no point did
Lewis serve in a supervisory role over him or direct him to
perform any particular assignment.
(R&R at 11-12 (citations omitted).) The R&R went on
to conclude that WB's testimony on these issues
contradicted Gonzales's account and, thus, raised a
factual dispute concerning pretext. The R&R also relied
on purported discrepancies between Gonzales's proffered
rationale for terminating WB and a “Probation
Evaluation” form that Gonzales filled out at the time
of WB's termination.
WB's “Probation Evaluation” form, Gonzales
checked off boxes indicating that WB's “Job
Knowledge” and “Volume of Work” were
“Unsatisfactory.” (Clark Decl. Ex. 8.) In the
small comments section on this form, Gonzales hand-wrote:
It is evident through direct observation that [WB] has
deficiencies relating to some of the serious tasks
(processing of clinic and ancillary departments
instrumentation, case cart preparation and operating room
trays) that Central Supply is responsible for. This
deficiency has led to a lack of productivity from [WB], which
has the potential to compromise patient care. It is for these
reasons that [WB] has not passed his probation.
explained below, the Court disagrees with the R&R's
pretext analysis. In addressing pretext, the R&R stated:
For example, the Probation Evaluation completed by Gonzalez
states that the evaluation had been based on “direct
observation” of W. Baby's performance. Yet, as W.
Baby notes, “Gonzalez testified that the only source
for his conclusion that [W. Baby]'s job knowledge was
unsatisfactory was from the reports of . . . ...