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Baby v. Nassau Healthcare Corp.

United States District Court, E.D. New York

August 1, 2017


          Michael G. O'Neill Office of Michael G. O'Neill, Attorney for Plaintiffs

          Brian J. Clark Emily M. Tortora Venable LLP Rockefeller Center Attorneys for Defendants



         Plaintiffs 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.

         Familiarity with the R&R, the parties' objections, and underlying motion papers is assumed.

         A. Standard for Reviewing a Magistrate Judge's Report and Recommendation

         In 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 (E.D.N.Y. 2008).

         The 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.

         B. WB's Claims

         The 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.

         The 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 discrimination.

         1. Standard

         For the 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.

         “The 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).

         A 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 (E.D.N.Y. 2008)).

         “In 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 148.

         WB must 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).

         The 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.

         2. WB Cannot Show Pretext

         In reciting the relevant factual background, the R&R explained that:

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.

         On 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.


         As 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 . . . ...

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