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James v. New York City Health and Hospitals Corp.

United States District Court, S.D. New York

September 6, 2017


          OPINION & ORDER


         This decision resolves a motion for partial summary judgment in this case involving allegations of workplace sexual harassment. Plaintiff Dorothy James brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et. seq. ("Title VII") and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et. seq. ("NYCHRL"). She alleges that defendants-New York City Health and Hospitals Corp. ("NYC Health"), a not-for-profit corporation; Harlem Hospital Center ("HHC"), a public hospital run by NYC Health; Cheryl Isaacs, the Associate Director of NYC Health; and Donald Waiters, an employee of NYC Health-violated her rights under federal, state, and city law during her employment at NYC Health. James's claims include federal and city law claims of gender discrimination and retaliation, and a state law claim of assault and battery.

         Defendants now move for partial summary judgment. They argue that (1) James's NYCHRL claims are barred by the doctrine of collateral estoppel; (2) James has failed to establish a prima facie case of hostile work environment under either Title VII or NYCHRL; and (3) James has failed to establish & prima facie case of retaliation under either Title VII or NYCHRL. For the following reasons, the Court denies defendants' motion.

         I. Background[1]

         A. Factual Background

         1. The Parties

         NYC Health is a public benefit corporation that operates as the public hospital system for the City of New York. JSF ¶ 1. This system includes "acute care hospitals, diagnostic and treatment centers, long term care facilities and numerous health community health clinics." Id.

         HHC is an entity encompassing several health clinics, including the Drew Hamilton Clinic ("Drew Clinic"), included within NYC Health. Id. ¶ 2.

         James was employed at HHC between approximately 2006 and January 27, 2016. Id. ¶ 7. James held the title of Principal Administrative Associate Level I, and was assigned to various NYC Health clinics. Id. In February 2014, James was assigned to the Drew Clinic's Registration and Operation Department. Id. ¶ 10.

         Waiters has been an NYC Health employee since 1992. Id.¶\\. In 2014, Waiters was working at the Drew Clinic with the title of Clerical Associate III in the Medical Records and Patient Registration and Operation Departments. Id.

         Isaacs has been an NYC Health employee since 2010, with the title of Associate Director of the Harlem Hospital Network, which includes the Drew Clinic. Id. ¶ 12. In 2014, Isaacs was the supervisor of both Waiters and James. Id. ¶ 13.

         2. Incidents of Alleged Sexual Harassment

         James claims that Waiters sexually harassed her during their time working together at the Drew Clinic. PI. 56.1 ¶¶ 46-51. In her deposition, she testified to Waiters's "very frequent" and "continuous" harassing behavior, Maldonado Decl., Ex. L ("James Depo.") at 34, which included making sexual innuendos, "consistently staring and glaring" at her, "following [her] around the clinic, " and "trying to grab and touch" her, id. at 75-76. James testified to these examples of Waiters's conduct:

1. Around the time that James began working at the Drew Clinic, Waiters stated to James, "A woman would never have a problem with me, 'cause I'm well hung." Mat 33.
2. In or around late February 2014, in the registration area at the Drew Clinic, Waiters stated to James, "A pussy has to be clean for me to eat it[.] I know you're clean." Id. at 30-31.
3. Between February and June, Waiters engaged in what James described as "touchy-feely" behavior, in which he would "[t]ry to embrace [James], try to come near [her], [and] rub up against [her]." Id. at 76.
4. Throughout their time working together, Waiters would frequently- approximately on a weekly basis-imitate sex acts by wagging his tongue and moving his head back and forth toward James, while making statements such as, "I know I can satisfy a woman." Id. at 38-39.
5. At some point during the time that Waiters and James worked together, Waiters began to unzip his zipper while asking James the color of her underwear. Id. at 74.
6. At some point during the time that Waiters and James worked together, Waiters said to James, referencing another female employee, "All you have to do is buy her a pack of cigs for her to give it up." Id. at 35.
7. At some point during the time that Waiters and James worked together, after James removed a blazer she was wearing, Waiters stated, "Oh, you could take it off. I'm not going to stare at you too much." Id. at 75.

         James testified that she made clear to James that his comments and advances were unwanted. Id. ¶ 76. However, Waiters would engage in "mockery that he would do because [James] would not respond in kind or likeness to his sexual advances." Id. at 74. James claimed that Waiters persistently reacted negatively when she expressed discomfort with his behavior:

When I didn't respond in kind and think that it was appropriate, or spoke on it and said it was inappropriate, then that's when you get the screaming. He would raise his voice. "I'm just playing." He'd get irate, irrational. He'd make little personal derogatory comments, more so to get a rise or raise out of anyone that was around.

Id. at 75. She testified to one incident in 2014 in which, after she rejected Waiters's advances and complained to others, Waiters publicly mocked James for her "weak eye." Id. at 83.

         James testified that she had complained of Waiters' conduct repeatedly to Isaacs. PI. 56.1 ¶¶ 52-54. In or around March 2014, she did so in person and in email. Id. at 54. Isaacs did not respond to her email, and Waiters's harassment continued. Id. at 55.

         3. NYC Health Policies

         NYC Health has a written policy that prohibits sexual harassment and outlines procedures for filing a sexual harassment complaint with its Office of Equal Employment Opportunity ("EEO"). JSF¶3.

         NYC Health also has a "Workplace Violence Prevention" policy that prohibits "occupational assaults, homicide, or attempt or threat (physical or verbal) to inflict physical injury occurring where a public employee performs any work-related duty in the course of his or her employment." Id. ¶ 4.

         In addition, NYC Health's "Operating Procedures No. 20-2 Tardiness" requires employees to "report for work as scheduled both at the beginning of the work shift and upon return from the meal period." Id¶5. This policy defines excessive tardiness as "unexcused tardiness that results in an employee's late arrival on three (3) or more occasions in one month or in excess of 30 minutes in one month." Id. ¶ 5.

         NYC Health's Labor Relations Department sets the penalties associated with violations of these tardiness and workplace violence policies and procedures. Id. ¶ 6. In deciding the particular penalty, the Labor Relations Department follows a "progressive discipline practice" and considers an employee's prior disciplinary history in addition to the conduct underlying the instant infraction. Id. ¶ 6.

         4. Prior Disciplinary Histories

         Until 2014, Waiters had no disciplinary history at HHC. Def. 56.1 at 5; PL 56.1 at 7.

         As to James, between 2006 and 2013, five disciplinary charges were instituted against her in connection with violations of NYC Health policies relating to tardiness and insubordination. JSF ¶ 8. As of April 2013, James's most recent penalty for excessive lateness had been a 55-day suspension in July 2011. M¶ 9. In connection with excessive lateness, James had also been issued a counseling session on June 28, 2012, and a warning notice on November 9, 2012. Id.

         On or about April 26, 2013, disciplinary charges were instituted against James in connection with her excessive lateness-a total of one hour and 57 minutes-between December 10, 2012, and April 5, 2013. Id. ¶ 14. On July 1, 2013, NYC Health held a Step I hearing related to this April 2013 disciplinary charge. Id. ¶ 15. James's union representative Aaron Stewart attended the hearing. Id. James did not. Id.

         On April 2, 2014, an NYC Health Labor Relations Associate, Carla Vasquez, sent an email to Stewart stating the following regarding a penalty for the April 2013 charge: "I'm willing to give Ms. James another chance of serving 60 days straight. If she does not want to sign waiver, unfortunately I will go for termination. Her last time, she got 55 days." Id. ¶ 16.

         On or about April 6, 2014, James "complained" to Stewart regarding the offered 60-day penalty and told Stewart that NYC Health had threatened her with termination before her first excessive lateness suspension. Id. ¶ 17.

         On April 8, 2014, Stewart sent James an email informing her that NYC Health had "offered a forty (40) day suspension with sixty (60) days on the books . . . due to progressive discipline" and indicating to her that NYC Health would "push for termination" if she did not accept this offer. Id. ¶ 18.

         5. Physical Altercation at the Drew Clinic

         On June 3, 2014, while James's April 2013 excessive lateness charge was still pending, James and Waiters had a physical altercation while working at the Drew Clinic. Id. ¶ 19.

         In her deposition, James described the incident as follows: James was leaving the nursing area and walking to her work area when Waiters approached her and grabbed her. James Depo. at 87. Waiters "pulled [James] to him and . . . rubbed himself against James's "upper torso" and the area "[f]rom [her] waist down." Id. at 88. Waiters then stated something to the effect of, "You don't come into this area without 'effin speaking to me first." Id. After James replied something to the effect of, "What's your problem? Get off of me, " Waiters grabbed James's arms and wrist, causing James's wristwatch to break. Id. at 87, 90. As James backed away from Waiters, Waiters grabbed James's legs and knees and "flipped" her backwards "over the garbage receptacle, " causing her to fall "against the wall." Id. at 87, 90. Other employees in the area "jumped up" to ask if James was all right because "the noise was so loud." Id. Waiters then "tried to sail out of the area like nothing happened, " and James "left the area and . . . went and called the police." Id. at 88.

         In his deposition, Waiters testified to a starkly different description of the incident. He claimed that he and James were sitting in a "huddle" with other colleagues when "all of a sudden she hit [him] on [his] hand." Blocker Decl., Ex. I ("Waiters Depo") at 60. Waiters claimed that he and James then began to "hit[]" and "push" each other: "[Y]ou know, it's going back and forth hitting her on her hand, back and forth hitting each other on the hand, like a push, most like a push." Id. Waiters testified that James "then .. . just went irate, " stated, "you're going to get my motherfucking watch fixed, " and "started cursing at [him]." Id. Waiters testified that he was "puzzled" by this, and that he "hadn't said anything to her." Id. After other colleagues made statements such as "be professional" and "walk away, " Waiters left the area and went back to his office. Id. at 60-61. Fifteen or 20 minutes later, police officers knocked on Waiters's door and informed him that James had claimed that Waiters had assaulted her. Id. at 61.

         That same day, both James and Waiters were suspended without pay pending an investigation. Disciplinary charges were later instituted against both. JSF ¶ 21.

         6. Penalties Imposed

         As a penalty for the June 3, 2014, incident, Waiters served a suspension of approximately 21 days, returning to work at the Drew Clinic on June 23, 2014. Id. ¶¶ 23-24. NYC Health held a Step 1(A) Hearing for Waiters on June 23, 2014. Id. ΒΆ 22. Waiters accepted NYC Health's recommended penalty of "seven (7) days and four (4) hours [of the 21 ...

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