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Scott v. Northern Manor Multicare Center, Inc.

United States District Court, S.D. New York

March 30, 2018

BRIDGET L. SCOTT, Plaintiff,


          Judith C. McCarthy United States Magistrate Judge.

         Plaintiff 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”), [1] 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.[2] (Docket No. 24). Plaintiff opposes the motion.[3] (Docket No. 35). For the reasons that follow, Defendant's motion is granted.

         I. BACKGROUND

         The 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”), [4] each party's supporting affidavits and exhibits, and the pleadings submitted by the parties in support of their contentions.

         A. The Parties

         Plaintiff, 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.[5] 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 Aff.[6] 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).

         B. Plaintiff's First Termination

         On September 2, 2012, Plaintiff was assigned to cover the Ventilator Unit.[7] (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.[8] (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 ¶ 23).

         On 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.[9] (Scott. Aff. at ¶ 25).

         On 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.”[10] (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).

         As a 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 No. 28-10).

         C. Plaintiff's Return to Northern Manor

         Pursuant 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.”[11] (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.”[12] (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).

         Following her return to Northern Manor after signing the LCA, Plaintiff registered various complaints with her supervisors on separate occasions:

         1) 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).

         2) 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 ¶ 57).

         3) 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).

         4) 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).

         5) 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. at 33).

         6) 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. (Id.).

         No 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).

         D. Plaintiff's Second Termination

         On 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).

         Later 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).


         Under 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 marks omitted).

         In 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.

         The 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 322-23.

         In the 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).


         Plaintiff 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.

         A. Discrimination in Violation of Title VII, ยง ...

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