United States District Court, S.D. New York
BRIDGET L. SCOTT, Plaintiff,
NORTHERN MANOR MULTICARE CENTER, INC. d/b/a NORTHERN MANOR, Defendant.
OPINION AND ORDER
C. McCarthy United States Magistrate Judge.
Bridget L. Scott (“Plaintiff”) commenced this
action pursuant to: (i) Title VII of the Civil Rights Act of
1964 (42 U.S.C. § 2000e) (“Title VII”); (ii)
42 U.S.C. § 1981 (“§ 1981”); (iii) New
York State Executive Law § 290 (the “New York
State Human Rights Law” or “NYSHRL”); and
(iv) New York Labor Law § 741 (“NYLL §
741” or “Section 741”),  alleging that
Defendant Northern Manor Multicare Center, Inc.
(“Northern Manor” or “Defendant”)
discriminated against her on the basis of her race and
retaliated against her for whistle blowing. (Docket No. 1).
Presently before this Court is Defendant's motion for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (Docket No. 24). Plaintiff opposes the
motion. (Docket No. 35). For the reasons that
follow, Defendant's motion is granted.
following facts are gathered from each party's statement
filed pursuant to Rule 56.1 of the Local Rules of the United
States District Courts for the Southern and Eastern Districts
of New York (“Rule 56.1”),  each party's
supporting affidavits and exhibits, and the pleadings
submitted by the parties in support of their contentions.
an African-American licensed practical nurse
(“LPN”), worked for Northern Manor, a residential
healthcare facility, from 2003 until 2006. (Docket No. 1 at
¶ 5; Scott Aff. at ¶ 3). Plaintiff returned to work
at Northern Manor in 2007 and remained employed there until
she was terminated on January 29, 2014. (Scott Aff. at ¶
3). As an LPN, Plaintiff was responsible for
“administering medications to residents, overseeing the
work assignments of certified nursing assistants
(‘CNA'), wound treatment and inputting resident
health and treatment information on medical charts.”
(Def. Statement at ¶ 19; Pl. Counter statement at ¶
19). From 2007 until August 14, 2013, Plaintiff worked on a
part time basis as a “floater.” (Def. Statement
at ¶ 22; Scott Aff. at ¶ 6). As a floater,
Plaintiff was assigned to various units based on the needs of
the facility. (Def. Statement at ¶ 23; Pl. Counter
statement at ¶ 23). The majority of Northern Manor
residents live in continuous care units. (Scott Aff. at
¶ 5). Of these, the Rehabilitation and Ventilator Units
require the most intensive care. (Id.; Def.
Statement at ¶¶ 28, 37). Defendant has served the
senior community in Nanuet, New York since 1981. (Fogel
at ¶ 2). At all relevant times, Northern Manor was a
party to a collective bargaining agreement
(“CBA”) with 1199 SEIU, Health Care Workers East
(“the Union”). (Def. Statement at ¶ 13; Pl.
Counter statement at ¶ 13). Because Plaintiff was a
member of the Union, the terms and conditions of her
employment were governed by the CBA. (Def. Statement at
¶¶ 14-17; Pl. Counter statement at ¶¶
14-17). Under the CBA, Northern Manor had “the right to
discharge, suspend, or discipline any employee for
cause.” (Docket No. 28-5 at 37).
Plaintiff's First Termination
September 2, 2012, Plaintiff was assigned to cover the
Ventilator Unit. (Docket No. 28-7 at 2). Plaintiff punched
in for work at 7:30 a.m., but left early and provided
Northern Manor with a note from her doctor. (Id. at
2-3). Defendant alleges that Plaintiff left after she was
advised of her assignment to the Ventilator Unit. (Def.
Statement at ¶ 40). Plaintiff contends, however, that
she left work for medical reasons. (Scott. Aff. at ¶¶
22-23). Because Plaintiff provided Northern Manor with a
doctor's note, (Docket No. 28-7 at 3), she was not
disciplined for her conduct on that day. (Scott Aff. at
March 17, 2013, Plaintiff was reassigned to the Ventilator
Unit, (see Docket No. 29-3), but Plaintiff's
supervisor reported that Plaintiff refused to work on the
Ventilator Unit that day, (Docket No. 28-8). Plaintiff's
“Employee Disciplinary Notice” dated March 18,
2013 indicates that she was suspended for her refusal and
warned that the next incident would result in termination.
(Id.). Plaintiff disputes refusing to work on the
Ventilator Unit on that date and does not recall receiving
the March 18, 2013 Employee Disciplinary
Notice. (Scott. Aff. at ¶ 25).
March 18, 2013, Plaintiff met with Northern Manor's
Administrator, Akiva Fogel (“Fogel”). (Docket No.
28-9; Scott Aff. at ¶ 25). According to Plaintiff, Fogel
“refused to hear [her] version of what occurred and
became very agitated and hostile to the point that [she] felt
[she] should leave the room.” (Scott Aff. at ¶
25). Plaintiff maintains that Fogel chased her out of his
office. (Id.; Docket No. 29-1 at 4). Upon leaving
Fogel's office, Plaintiff said, “If you are looking
for trouble, I will give you trouble.” (Docket No.
28-9). Plaintiff's Employee Disciplinary Notice relating
to her meeting with Fogel indicates that she “refused
to sign.” (Docket No. 28-9). Plaintiff maintains,
however that she never received this Employee Disciplinary
Notice. (Scott Aff. at ¶ 25).
result of this incident, Plaintiff was terminated. (Docket
No. 28-9). Plaintiff's Union grieved her termination and
the grievance was settled pursuant to the Last Chance
Agreement (the “Agreement” or “LCA”)
dated May 15, 2013. (Scott Aff. at ¶ 25; Docket No.
28-10). The Agreement states:
Bridget Scott acknowledges that should she in the future
commit any infraction similar to which she was discharged for
committing, including but not limited to: failure to accept
an assignment and insubordination it shall be grounds for
discharge. Any grievance or arbitration contesting such
discharge shall be limited to the question of whether Bridget
Scott committed the infraction(s) as charged; if it is proven
that the infraction was committed, the penalty of discharge
shall not be set aside.
(Docket No. 28-10). As Plaintiff notes, the Agreement does
not contain a determination or admission of guilt. (Pl.
Counter statement at ¶ 52). However, the LCA states that
the “time between discharge and reinstatement shall be
deemed disciplinary suspension without pay.” (Docket
Plaintiff's Return to Northern Manor
to the Agreement, Plaintiff returned to work at Northern
Manor on or about May 20, 2013. (Def. Statement at ¶ 53;
Pl. Counter statement at ¶ 53). Effective August 4,
2013, Plaintiff became a full time employee and was
“assigned to a unit on a regular
basis.” (Scott. Aff. at ¶ 7; Docket No.
28-11). On October 22, 2013, Plaintiff was initially assigned
to cover “House” and was subsequently reassigned
to “Center-3.” (Docket No. 28-19 at 3).
Plaintiff punched in for work at 7:24 a.m. and punched out
for work at 7:30 a.m. (Docket No. 28-12). According to
Defendant, when Plaintiff became aware of her reassignment,
she stated that she had an “extreme headache” and
could not work her shift. (Def. Statement at ¶ 80;
Docket No. 28-12). Plaintiff provided Defendant with a
doctor's note and no adverse action or discipline was
taken. (Docket No. 28-12; Scott Aff. at ¶ 27). Plaintiff
maintains that she left work because she was sick. (Scott
Aff. at ¶ 27).
her return to Northern Manor after signing the LCA, Plaintiff
registered various complaints with her supervisors on
Plaintiff told the Assistant Director of Nursing, James Oshie
(“Oshie”), that a patient requested that LPN
Maureen Dillon not be permitted to administer injections
because of her shaky hands. (Docket No. 28-24 at 18-19).
Plaintiff told Oshie that LPN Ann Hoffman made numerous
mistakes in patient care, including inappropriately
administering a double dose of Ativan to a patient on
approximately thirty different occasions. (Id. at
20-22; Def. Statement at ¶ 57; Pl. Counter statement at
Plaintiff objected to being assigned to irrigate a
cholecystectomy tube of a postoperative patient because she
lacked experience. (Docket No. 28-24 at 22-23). Plaintiff
then made a general inquiry to the New York State Board of
Nursing as to whether an LPN was qualified to irrigate a
cholecystectomy tube. (Id. at 23). Plaintiff did not
report the incident to the Union. (Id. at 27-28).
Plaintiff told Margaret O'Connor, her supervisor at the
time, that LPN Amanda Carelli left a patient in a wheelchair
overnight and the patient was found sitting in feces the next
morning. (Docket No. 28-24 at 28-29).
Plaintiff repeatedly reported that LPN Karen Schaeffer was
treating patients while inebriated and told her supervisor
that Schaeffer may have stolen narcotics while treating
patients. (Id. at 32-33). Plaintiff never witnessed
Shaeffer drinking alcohol or stealing, however. (Id.
Plaintiff noticed that a medication cart was coated with a
black and green mold like substance and that its handles and
drawers were coated with an unknown sticky brown substance.
(Id. at 35-36). She asked the
“housekeeper” to clean it, but he refused and
instead gave her the cleaning supplies. (Id.).
Plaintiff then cleaned the cart herself and reported the
issue to Oshie and Elizabeth Gerosa, the Director of Nursing.
adverse action was taken against Plaintiff in response to any
of the above complaints. (Def. Statement at ¶¶ 56,
58, 66, 68, 71, 75; Pl. Counter statement at ¶¶ 56,
58, 66, 68, 71, 75).
Plaintiff's Second Termination
January 29, 2014, Plaintiff punched in for work between 7:12
and 7:15 a.m. (Def. Statement at ¶ 84; Pl. Counter
statement at ¶ 84). She was initially assigned to
“Center-2-South, ” but was subsequently
reassigned to the Ventilator Unit. (Docket No. 28-20 at 42).
Plaintiff telephoned her supervising RN, Pat Ball, after
arriving at work to discuss how she was feeling that day.
(Scott Aff. at ¶ 28; Docket No. 28-14 at 5). Plaintiff
told Ball that she was sick and could not work the Ventilator
Unit. (Scott Aff. at ¶ 28; Docket No. 28-14 at 5).
Plaintiff also told Ball that it had been a long time since
she had covered the Ventilator Unit, and therefore, she
needed a refresher before working that unit again. (Scott
Aff. at ¶ 28; Docket No. 28-14 at 5). Plaintiff had last
worked on the Ventilator Unit on November 1, 2013. (Def.
Statement at ¶ 92; Pl. Counter statement at ¶ 92).
Ball advised Plaintiff that she was required to work the
Ventilator Unit as per the schedule, but Plaintiff told Ball
that she was going to leave and go to the doctor. (Scott Aff.
at ¶ 28; Docket No. 28-14 at 5). Plaintiff raised her
voice and became argumentative, (Docket No. 28-14 at 3), and
told Ball that she would not float to the Ventilator Unit,
(Def. Statement at ¶ 90; Pl. Counter statement at ¶
90). Plaintiff then left the facility and went to the doctor.
(Scott Aff. at ¶ 28). She does not recall whether she
punched out before leaving Northern Manor. (Def. Statement at
¶ 95; Pl. Counterstatement at ¶ 95).
that day, Plaintiff was terminated because she “refused
once again to go to [the Ventilator Unit] as
instructed.” (Docket No. 28-14 at 2). Plaintiff
maintains that she left because she was sick and therefore
did not violate the Last Chance Agreement. (Scott Aff. at
¶¶ 28-29). The Union advised Plaintiff that she
should be reinstated if she produced a doctor's note.
(Docket No. 29-1 at 24). Plaintiff produced a doctor's
note, but Northern Manor did not reconsider her termination.
(Scott Aff. at ¶¶ 28-29). Plaintiff ultimately
decided not to grieve or arbitrate her termination because
she felt that she was being discriminated against. (Docket
No. 29-1 at 27-28).
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure, the moving
party bears the burden of demonstrating that it is entitled
to summary judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). The Court must grant summary
judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine dispute as to a material fact “exists
for summary judgment purposes where the evidence is such that
a reasonable jury could decide in the non-movant's
favor.” Beyer v. Cty. of Nassau, 524 F.3d 160,
163 (2d Cir. 2008); see also Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 247-48 (1986). “A fact is
material if it might affect the outcome of the suit under the
governing law.” Casalino v. N.Y. State Catholic
Health Plan, Inc., No. 09 Civ. 2583(LAP), 2012 WL
1079943, at *6 (S.D.N.Y. Mar. 30, 2012) (internal quotation
reviewing a motion for summary judgment, the Court
“must draw all reasonable inferences in favor of the
[non-moving] party” and “must disregard all
evidence favorable to the moving party that the jury is not
required to believe.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51 (2000). That said,
the Court may not weigh the evidence or determine the truth
of the matter, but rather conducts “the threshold
inquiry of determining whether there is the need for a
trial[.]” Anderson, 477 U.S. at 250.
moving party bears the initial burden of “demonstrating
the absence of a genuine issue of material fact.”
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.
2008) (citing Celotex, 477 U.S. at 323). If the
moving party meets this initial burden, the burden then
shifts to the non-moving party to “present evidence
sufficient to satisfy every element of the claim.”
Id. “The non-moving party is required to
‘go beyond the pleadings' and ‘designate
specific facts showing that there is a genuine issue for
trial, '” id. (citing Celotex,
477 U.S. at 324; Anderson, 477 U.S. at 249-50), and
“must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). If the non-moving party fails to
establish the existence of an essential element of the case
on which it bears the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at
Southern District of New York, parties moving for and
opposing summary judgment must also submit short and concise
statements of facts, supported by evidence that would be
admissible at trial. Local Civ. R. 56.1. The opposing party
must specifically controvert the moving party's statement
of material facts, or the moving party's facts will be
deemed admitted for purposes of the motion. Local Civ. R.
56.1(c); T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d
412, 418 (2d Cir. 2009) (“A nonmoving party's
failure to respond to a Rule 56.1 statement permits the court
to conclude that the facts asserted in the statement are
uncontested and admissible.”). However, uncontested
facts cannot be deemed true simply by virtue of their
assertion in a Local Rule 56.1 statement; the Court is free
to disregard the assertion in the absence of citations or
where the cited materials do not support the factual
assertions in the statements. Holtz v. Rockefeller &
Co., 258 F.3d 62, 73 (2d Cir. 2001). The Court therefore
has discretion “to conduct an assiduous review of the
record even where one of the parties has failed to file such
a statement.” Id. (internal quotation marks
omitted); see also Fed. R. Civ. P. 56(c)(3).
Nevertheless, the Court is “not required to consider
what the parties fail to point out.” Monahan v.
N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir.
2000) (internal quotation marks omitted).
alleges that Northern Manor engaged in discriminatory conduct
against her in violation of Title VII, 42 U.S.C. § 1981,
and the New York State Human Rights Law by: (1) assigning her
to work on Northern Manor's Ventilator and Rehabilitation
Units; (2) failing to properly pay her for accrued vacation
and sick time; (3) denying her overtime hours; and (4)
terminating her on January 29, 2014. (Docket No. 1 at
¶¶ 10, 17-34). Plaintiff further alleges that the
above actions also constitute retaliation in violation of
NYLL § 741. (Id. at ¶¶ 10-17).
Defendant argues that Plaintiff's Complaint should be
dismissed in its entirety as there are no material facts in
dispute and Plaintiff's claims fail as a matter of law.
(Def. Br. at 2-7). Plaintiff also seeks, for the first time
in her Opposition, to assert a claim under New York Labor Law
relating to her vacation benefits and right to work overtime
hours. For the reasons that follow, all of Plaintiff's
claims are dismissed.
Discrimination in Violation of Title VII, § ...