344 F. Supp. 3d 705
S.D. Ill.2018Background
- Juanita Kho, a Filipino-born staff ICU nurse at New York-Presbyterian (hired 2006), was repeatedly the subject of patient, family, and coworker complaints from 2006–2014 about communication, empathy, handoffs, documentation, and clinical performance.
- Holmes, the ICU patient care director who hired and supervised Kho, counseled her repeatedly, issued corrective actions, and placed her on two Work Improvement Plans (WIP I in 2007; WIP II in 2014). Kho often refused to sign the WIPs and disputed the criticisms.
- Kho took an extended leave for cancer treatment in 2010 and later had a July 2014 on-the-job back injury; she did not request a workplace accommodation for the back injury.
- Human Resources met with Kho in mid-2014 after she contested WIP II and raised possible discrimination concerns; she was terminated on August 18, 2014.
- Kho sued under Title VII, the ADEA, the ADA, the Rehabilitation Act, and New York State/City human rights laws alleging discrimination (race, national origin, age, disability), failure to accommodate, hostile work environment, and retaliation. The hospital moved for summary judgment.
- The district court granted summary judgment for the hospital on all federal claims and declined supplemental jurisdiction over the state/city claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discrimination (race, national origin, age, disability) — wrongful termination | Kho contends adverse action was motivated by accent/race/age/disability and that Holmes made accent-based comments; points to departures of older nurses and disparate discipline | Hospital proffers legitimate nondiscriminatory reason: long-standing, well-documented poor performance and multiple complaints and WIPs; decisions were by Holmes who also hired Kho | Summary judgment for Hospital: plaintiff failed to show pretext or evidence of discriminatory animus |
| Failure to accommodate (ADA/Rehab Act) | Kho points to her 2014 back injury and timing of termination | Hospital notes Kho never requested accommodation and performed duties after injury; employer cannot fail to accommodate an unrequested accommodation | Summary judgment for Hospital: plaintiff fails prima facie case (no request; no notice triggering duty) |
| Hostile work environment (race, national origin) | Kho relies on Holmes’ comments about her accent and alleged yelling | Hospital argues comments were few, performance-related, not pervasive or humiliating, and not motivated by discriminatory animus | Summary judgment for Hospital: comments not severe/pervasive or shown to be because of protected characteristic |
| Retaliation (Title VII) | Kho claims she opposed discrimination (told HR WIP II was due to race/national origin) and was fired soon after | Hospital again points to nondiscriminatory performance-based reasons and argues timing alone is insufficient to show but-for causation | Summary judgment for Hospital: timing alone insufficient; no evidence of retaliation as but-for cause |
Key Cases Cited
- Brod v. Omya, Inc., 653 F.3d 156 (2d Cir. 2011) (summary-judgment standard and construing facts for nonmovant)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for discrimination claims)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) (elements of prima facie discrimination case)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (hostile work environment severity/pervasiveness standard)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (U.S. 2013) (retaliation requires but-for causation)
- Tolbert v. Smith, 790 F.3d 427 (2d Cir. 2015) (causation and hostile-work-environment analysis)
- Scott v. Harris, 550 U.S. 372 (U.S. 2007) (court may disregard self-serving factual assertions contradicted by record)