ZAKEENAH SMITH, Plаintiff, -v- THE NEW YORK AND PRESBYTERIAN HOSPITAL; COLUMBIA UNIVERSITY MEDICAL CENTER; NEW YORK PRESBYTERIAN FOUNDATION, INC.; NEW YORK PRESBYTERIAN GLOBAL, INC.; NEW YORK PRESBYTERIAN HEALTHCARE SYSTEM, INC.; GREGORY SICA, individually; and SAMANTHA SHANKAR, individually, Defendants.
18 Civ. 776 (PAE)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 18, 2020
PAUL A. ENGELMAYER, District Judge:
Plaintiff Zakeenah Smith, who identifies as a black and African American woman, is a lead ultrasound technologist employed by defendant The New York and Presbyterian Hospital (the “Hospital“) who formerly worked with physician defendants Gregory Sica and Samantha Shankar. Smith brings discrimination, retaliation, and hostile work environment claims against the Hospital under
I. Background
A. Factual Background2
1. The Parties3
The Hospital is an non-profit acute care hospital that provides in-patient, ambulatory, and preventative care across all fields of medicine. JSF ¶ 4. The Hospital has a branch at the Lawrence Hospital Center (the “Lawrence location“) in Bronxville, New York. See id. ¶¶ 2, 6.
Sica and Shankar (the “Doctors“) are radiologists who were employed by Columbia University Medical Center (“Columbia“)4 and granted privileges at the Hospital. See JSF ¶¶ 17–19. Both treated patients at the Lawrence location, where they had offices, used hospital equiрment, and worked with technologists. Id. ¶¶ 21–23. Sica, who identifies as a Caucasian male, worked for Columbia between October 2014 and his voluntary resignation in December 2017. Id. ¶ 17; Pl. 56.1 ¶ 25. He supervised other Columbia radiologists who had privileges at the Lawrence location. JSF ¶ 18. Shankar, who identifies as an Indian woman, Pl. 56.1 ¶ 27, also began working for Columbia in October 2014 and remained there until she voluntarily resigned in March 2018, JSF ¶ 19. In 2016, Shankar became a Columbia Associate Medical Director. Id. ¶ 20. Both Doctors worked with Smith. See id. ¶ 23.
Smith, a New York resident, is a registered diagnostic medical sonographer. Pl. 56.1 ¶¶ 1–2. She began working for the Hospital in 2011 through a staffing agency. Id. ¶ 4. At that time, she worked as an ultrasound technologist at the Lawrence location. See id. On October 21, 2013, the Lawrence location hired Smith as a full-time employee to fill an opening for a lead ultrasound technologist in its radiology department. See id. ¶ 10; JSF ¶ 1. Smith has worked for the Hospital in that same position since 2013. See JSF ¶¶ 2, 7.
As the lead ultrasound technologist in the radiology department, Smith‘s job responsibilities consist of performing ultrasounds of various parts of the body, including a patient‘s breasts, head, neck, torso, legs, or arms; creating protocols and other procedures for other ultrasound technologists to follow; managing the work schedules of technologists who report to her; and ensuring an orderly workflow for the ultrasound department. Id. ¶ 8; Def. 56.1 ¶ 5. The job description of a lead ultrasound technologist also requires Smith to “[p]erform[] duties of Ultrasound Technologist as needed.” Def. 56.1 ¶ 5 (alterations in original). The technologists Smith supervises are diverse and include Veveeine Carroll, a black woman, and Barbara Brown, a non-white woman. Id. ¶ 41.
The radiology department consists of several modalities, one of which is ultrasound. See id. ¶ 42. The lead technologists in the other modalities have diverse backgrounds. See id. ¶ 43. These other lead technologists include Melissa Aquino, a non-white female in Mammography; Evan, a non-white male in X-Ray; Fabian Falcon, a white mаle in CT; Benny Madappatt, a non-white male in MRI; Margaret Minieri, a non-white female in Interventional Radiology; and Timothy Walsh, a white male. Id.
During her employment, Smith has reported to two black, African American supervisors: Andrew Worrell, the former Chief Radiology Technologist, and Raymond Farquharson, the former Administrative Director of Radiology. JSF ¶¶ 9–11. First, she reported to Worrell, who then reported to Farquharson, until Worrell left the Hospital in 2014. Id. ¶¶ 9, 11. Next, she reported directly to Farquharson until his departure in 2017. Id. ¶ 11. Smith has also interacted with other Hospital employees, including Assunta Bruno, former Director of Human Resources; Tim Hughes, Vice President; Tracy Lewis, Vice President; Vera McEnroe, Interim Director of
Throughout her time at the Hospital, Smith has not applied for any promotions or transfers, and has received regular pay raises. JSF ¶¶ 12, 14. She has also received satisfactory performance reviews, although Farquharson did note that Smith could improve in her interpersonal skills, communication skills, and inclusion of those outside her ultrasound team. Id. ¶ 14; Def. 56.1 ¶ 20. She has never been suspended, demoted, or placed on a performance improvement plan (“PIP“).5 Def. 56.1 ¶ 17.
3. Overview of Complaints to Human Resources
At times, Smith has brought concerns to Human Resources. JSF ¶ 38. She has raised claims, inter alia, of racial discrimination, retaliation, hostile work environment, and harassment. See, e.g., Pl. 56.1 ¶¶ 20–21 (June 12, 2014 EEOC charged based on race discrimination), ¶ 72 (December 27, 2016 complaint against Sica), ¶ 92 (April 6, 2017 formal grievance); Def. 56.1 ¶ 32 (April 6, 2017 email complaint); JSF ¶ 26 (April 18, 2017 harassment complaint). She also
The Hospital investigated the complaints that Smith made and found no evidence of harassment or retaliation. JSF ¶ 41. Smith‘s supervisors never made any disparaging comments based on her race, color, or sex. Id. ¶ 49. Similarly, she has never heard the Doctors make racist or sexist comments. Id. ¶ 51. Acсordingly, she has never told Human Resources that anyone has made disparaging remarks of that nature against or toward her. Id. ¶ 50.
Other technologists and employees have complained to Human Resources about their interactions with Smith. Id. ¶ 39. Sica and Shankar had also received complaints about Smith. Id. ¶ 25. These complaints included, inter alia, the following:
- Complaints from ultrasound technologists and other employees about Smith‘s tone and responses when communicating with them, Def. 56.1 ¶ 22;
- Complaints that her communications were causing distrust and inefficiency within the radiology department, id. ¶ 35;
- Complaints that her interpersonal conflicts with technologist and radiologists were negatively affecting patient care, see JSF ¶ 32 (complaints from Aquino, Brown, and Carroll); Def. 56.1 ¶ 21 (complaint from Sica);
- Complaints from technologists and other employees that she bullied, harassed, and disrespected them, see Def. 56.1 ¶ 29 (March 8, 2017 complaint from Brown), ¶ 34 (May 4, 2017 complaint from Carroll regarding two separate incidents), ¶ 37 (May 31, 2017 complaint from Mirna Rodrigues, a front desk receptionist in the radiology department);
Complaints from technologists that Smith was unprofessional, defensive, and aggressive, see id. ¶ 25 (December 8, 2016 complaint from Brown), ¶ 30 (March 23, 2017 complaint from Carroll); - Complaints that she unreasonably expected to be consulted on all cases and assignments, id. ¶ 35;
- Complaints that she failed to perform her work as expected, see id. ¶ 25 (December 8, 2016 complaint from Brown regarding work in breast imaging); and
- Complaints from technologists that she gave preferential treatment to certain technologists when setting work schedules and that she refused to accommodate requests for schedule changes, see id. ¶ 26 (December 13, 2016 complaint from Carroll), ¶ 29 (March 8, 2017 complaint from Brown).
On multiple occasions, Smith met with Human Resources personnel, including former Director Bruno, to discuss the complaints. JSF ¶ 40.
4. Smith‘s 2014 EEOC Charge
On June 12, 2014, Smith filed her first EEOC charge against the Hospital, specifically alleging that a radiologist, Dr. Koch, who had trеated patients at the Lawrence location, had violated Title VII based on racial discrimination. See Pl. 56.1 ¶¶ 20, 21; see also Def. 56.1 ¶ 3. On January 18, 2015, that charge was settled. Def. 56.1 ¶ 4. The Hospital, while admitting no Title VII violation, agreed to review its anti-discrimination policies and to provide anti-discrimination training to the radiology department. See id.
Relevant here, the Hospital was aware of the 2014 EEOC charge. Pl. 56.1 ¶ 23. Sica was also aware of the charge, as Smith informed him that she had filed such a charge soon after he began working at the Lawrence location. Def. Reply 56.1 ¶ 23.
On December 22, 2014, Farquharson told Smith that there was “an obvious tension between ultrasound and breast imaging,” most notably between Aquino and Carroll, on one side, and Smith on the other. Def. 56.1 ¶ 23. He told Smith that the conflict between the groups needed to stop. Id. Sica had received complaints about Smith from ultrasound technologists before November 2016 and had reported them to Farquharson. Id. ¶ 24.
In or around November 2016, Farquharson temporarily reassigned Smith to rotate through the breast imaging center, located a floor below the main ultrasound floor, to perform breast ultrasounds a few times per week. JSF ¶ 29;6 Pl. 56.1 ¶ 57; Def. 56.1 ¶ 6. There were several reasons for this reassignment. First, Melissa Urena, one of the breast imaging technologists, was taking maternity leave, which would leave the breast imaging center short staffed.7 See JSF ¶ 30. Urena and Brown were the usual technologists who performed breast imaging at the time. Pl. 56.1 ¶ 51. Second, Smith was a qualified breast imager. JSF ¶ 31. She even stated that she was “the best” at breast imaging among the technologists. Def. 56.1 ¶ 8. Third, Farquharson saw Smith‘s temporary work in the breast imaging center as an opportunity
When Smith rotated to breast imaging, none of her duties as lead ultrasound technologist were taken away,8 and her pay remained constant. Id. ¶ 34; Def. 56.1 ¶ 11. No other technologists were asked to rotate through breast imaging. Pl. 56.1 ¶ 54. The parties dispute whether Smith was the only technologist available when Urena took maternity leave. See Pl. Reply 56.1 ¶ 9; Def. Reply 56.1 ¶ 59. Smith complained to Bruno in Human Resources about the reassignment. Pl. 56.1 ¶ 60.
6. December 2016 Emails and January 2017 Meeting
On December 6, 2016, Smith emailed Bruno, requesting “to schedule a time to speak with you in which I can file a grievance please.” Pl. 56.1 ¶ 39.
On December 27, 2016, Smith complained to Bruno and Lewis in Human Resources, via email, that Sica had been harassing her:
I would like to once again reaffirm my stance that I am being targeted for harassment[,] including but not limited to increased scrutiny, being transferred to a less desirable position, and creating a hostile work environment. Unfortunately I am not the only one who is being affected[.] On December 23rd[,] Melissa Urena called me audibly shaken and distressed due to an interrogation by Dr. Sica. Following [that,] Melissa Urena dеlivered one month before her due date. This friction has caused a rift between the technologist and is affecting patient care. Also these tactics of illegal harassment were the same ones employed against Dr. Sophie Chheang [sic].
Id. ¶ 72; Cesaratto Decl., Ex. 21 at 2.
On January 11, 2017, after Smith‘s email, Smith attended a meeting with Sica, Shanker, Human Resources Director Bruno, Vice President Lewis, and interim Director of Radiology McEnroe. JSF ¶ 24. Smith secretly recorded this meeting. Id.; see Cesaratto Decl., Ex. 22 (“Jan. 11, 2017 Tr.“). The purpose of the meeting was to address concerns within the radiology department and to develop a plan to move forward. Pl. Reply 56.1 ¶ 28. The meeting also addressed complaints that other employees had reported about Smith, including her use of rude and profane language and her inability to accept feedback. Id.
In addressing complaints made against her by her subordinates, Smith stated,
The same people consistently complain . . . [The technologists are] absolutely going to complain about me . . . Because I don‘t give them what they want. So, when you are habitually latе, when you get a “need improvement” for punctuality on your . . . evaluation, when you come in two hours late and then you complain on that day because there‘s a miscommunication, absolutely. You‘re going to have a complaint about me because you‘re trying to cover up for the fact that you‘re not doing what you‘re supposed to be doing.
7. Smith‘s March 2017 Confrontation and Later Verbal Warning
On March 23, 2017, Carroll told Smith that Carroll would perform a vascular ultrasound, because that was her specialty. Def. 56.1 ¶¶ 12–13. This led to an inappropriate exchange between Carroll and Smith in front of a patient. JSF ¶ 35. The exchange violated the Hospital‘s policies governing professionalism and courtesy toward patients and coworkers.11 See Def. 56.1 ¶ 13. Carroll and Smith both emailed Human Resources about the incident. See Pl. 56.1 ¶ 83; Def. Reply ¶ 83; Def. 56.1 ¶ 30. On May 18, 2017, as a result of the incident, they both received the same verbal warning. JSF ¶ 35; see also Cesaratto Decl., Exs. 31–32 (documentation of the verbal warnings). The Hospital uses verbal warnings as a tool to remind employees of its expectations for their behavior and performance. JSF ¶ 36. Smith‘s verbal warning did not lead to further discipline, demotion, or a reduction in her performance rating.12 Def. 56.1 ¶ 16.
Carroll did not file any EEOC charges against the Hospital. JSF ¶ 37.
8. Carroll‘s April 2017 Development of Vascular Protocols
In April 2017, Carroll was working to draft vascular protocols. See id. ¶ 42. Carroll was the only technologist with a vascular certification and wanted to work on developing such protocols. Id. ¶ 43. Smith, unlike Carroll, does not have a vascular certification, but Smith complained that Carroll had been assigned to work on the protocols. Id. ¶¶ 42, 46. Farquharson and Sica informed Smith that Carroll was working with the radiologists on the protocols because she had a vascular certification. Id. ¶ 44. Smith agreed that Carroll‘s having the only vascular certification was a legitimate business reason for her to work on the protocols, and Smith did not allege that Carroll was treated better than her because of race or gender (both are black women). See id. ¶¶ 37, 45, 48. To that end, Smith, in an April 5, 2017 email sent to physicians and Human Resource personnel, stated: “[T]o my knowledge all technologists in the department of ultrasound are aware that Ms. Carroll is developing the ultrasound vascular protocols, which we all support.” Id. ¶ 47 (alteration in original).
9. April 2017 Emails and May 2017 Meeting
Also in her April 5, 2017 email, Smith complained about Sica criticizing another technologist regarding an ultrasound and about instructions that he had given Smith about handling a difficult patient and keeping him informed. Def. 56.1 ¶ 31. The next day, on April 6, 2017, Sica responded to Smith—copying physicians, Human Resource personnel, and administrators—and stated:
This is affecting department morale and patient care, and is creating a level of distrust and unprofessionalism.
Everyone is aware that these have been chronic problems, at least since Columbia assumed professional duties in October 2014. I have personally experienced inappropriate and unprofessional emails, and at the January meeting Zakeenah admitted that she was on the “offensive” as she heard from a radiologist (one who may have already been dismissed) that I was trying to fire her. This was a surprise and unsettling to me.
Its [sic] obvious to all that the current structure and supervision of the ultrasound section is not working. I am asking that the administration intervene so we can move forward with creating a more unified and professional department and focus our time and energy on providing the best patient care possible.
See Pl. 56.1 ¶¶ 87–88; Def. Reply 56.1 ¶¶ 87–88; Cesaratto Decl., Ex. 25 (“Apr. 2017 Emails“) at 2–3. Smith responded to the email chain by complaining that she had been placed under increased scrutiny, subjected to a hostile work environment, assigned less desirable duties, had her duties assigned to other technologists, subjected to false rumors spread about her, and colluded against by others trying to have her employment terminated. Def. 56.1 ¶ 32; see Apr. 2017 Emails at 2.
Separately, also on April 6, 2017, Smith emailed Human Resources Director Bruno and Vice President Hughes with the subject line, “Formal Grievance.” Pl. 56.1 ¶ 92. She wrote:
I am writing to raise a formal grievance for inequity in treatment and the creation of a hostile work environment.
The reason [I] believe that I have a personal grievance is during a meeting dated January 11th[,] 2016 Dr. Sica was quoted as saying after becoming aware of a discrimination complaint I was to be put under increased scrutiny. Dr. Sica also stated he had no problem with my work performance and his gripes against me were interpersonal. Since this meeting both Dr. Shankar and Dr. Sica have ignored my various attempts to create as asked the ultrasound protocols. Dr. Sica has worked exclusively with Ms[.] Carroll in creating the vascular ultrasound protocols though Ms[.] Carroll has more patient recalls than any other technologist in the department of ultrasound and neither has the scanning ability or the clinic acumen to properly perform the function.
As the lead technologist in the department of ultrasound I emailed Dr. Viragh in regards to a concern[.] Dr. Sica then CC‘d another member of the ultrasound staff
perpetuating the hostile work environment and making my work more difficult. This behavior is retaliatory against protected activity as defined by the [EEOC]. If this does not satisfy the requirements to initiate the first step of a grievance[,] please advise me as to how I might do so.
Id.; Def. Reply 56.1 ¶ 92; O‘Connell Decl., Ex. 41.13
Later, on April 17, 2017, Sica sent an email about issues in the ultrasound department. See JSF ¶ 26; O‘Connell Decl., Ex. 28. On April 18, 2017, Smith responded to this email by removing Sica from the recipient list and sending the email to Bruno, Hughes, and McEnroe. JSF ¶ 26. She stated, “[b]ecause this email is proof of continued harassment I will not respond directly to Dr. Sica. I ask for administrations [sic] continued help in this matter as this harassment is in violation of federal law.” Id.; O‘Connell Decl., Ex. 28.
On May 5, 2017, Smith met with Sica, Hughes, McEnroe, and Human Resources Vice President Negron. Def. 56.1 ¶ 35. Again, Smith secretly recorded the meeting. See id. ¶ 40; see Cesaratto Decl., Ex. 28 (“May 5, 2017 Tr.“). The meeting addressed communication issues between Smith and the radiology department that were causing distrust and inefficiency within the team. Def. 56.1 ¶ 35. It also addressed her unreasonable expectation to be consulted on all cases or assignments. Id. Sica and the Hospital employees counseled Smith to improve her communications and to be more careful with the words she used. Id. ¶ 40. She was also advised that all Columbia physicians and Hospital employees were free to bring any complaints to the Hospital. Id. In the meeting, Sica stated:
And I‘ve asked you and Tim, and Vera and our new administrator, that going forward, I don‘t want to ever hear again that, well, there‘s no documentation or things aren‘t investigated. So when an inappropriate or a complaint email gets sent out, we need to address it, and there needs to be a write-up about it, and it goes in some files. So we will have documentation of all these so that we‘re not trying to
recall what happened. I mean, that I expect this from the hospital, and Columbia Radiology insists that we‘re—that the radiologists are protected from this.
Def. Reply 56.1 ¶ 97; May 7, 2017 Tr. at 15.
Following the meeting, on May 26, 2017, Sica emailed Hughes, McEnroe, and Negron to inform them that Smith was unable to act professionally and to communicate with the radiologists and other Hospital personnel, which was hurting patient care. Def. 56.1 ¶ 36.
On May 29, 2017, Smith began an approved medical absence from her work at the Hospital. JSF ¶ 27. On September 6, 2017, she returned to work. Id. ¶ 28.
B. Procedural History
On January 29, 2018, Smith filed her complaint. Dkt. 1 (“Compl.“). On April 20, 2018, the Hospital, along with defendants New York Presbyterian Foundation, Inc., New York Presbyterian Global, Inc., and New York Presbyterian Healthсare System, Inc. (together with the Hospital, the “Hospital Defendants“), requested an extension of time to answer the Complaint. Dkt. 18. On April 24, 2018, the Court approved that request. Dkt. 19. On April 25, 2018, Sica and Shankar also requested an extension to respond to the Complaint, Dkt. 20, which the Court granted, Dkt. 21. On April 29, 2018, the 90-day deadline for service passed without Smith having served Columbia. On June 4, 2018, the Court approved a second request from the Hospital Defendants extending their time to answer. Dkts. 28–29. On June 15, 2018, the Hospital Defendants filed their answer, Dkt. 29, as did the Doctors, Dkt. 30.
On June 18, 2018, the Court scheduled an initial pretrial conference for July 17, 2018. Dkt. 31. That same day, the case was automatically referred to the District‘s employment discrimination mediation program. Dkt. 32. On July 13, 2018, the parties filed a proposed case management plan, Dkt. 36, and, on July 16, 2018, a joint letter describing the case, Dkt. 38, in
On September 17, 2018, the parties participated in a mediation session, which was unsuccessful. Dkt. 43. On October 25, 2018, the Hospital Defendants raised a discovery dispute. Dkts. 44–45. That same day, Smith requested an extension of time to complete discovery, Dkt. 46, which the Court approved, Dkt. 47. On January 9, 2019, the parties requested a one-week adjournment of the case management conference. Dkt. 49. The next day, the Court granted that request. Dkt. 50. On January 28, 2019, the Doctors requested an extension of the discovery deadline, Dkts. 51–52, which the Court approved, Dkts. 53–54. On February 26, 2019, fact and deposition discovery ended. Dkt. 54.
On March 12, 2019, the Hospital Defendants filed a pre-motion letter, previewing their anticipated summary judgment motion. Dkt. 57. The following day, the Doctors did the same. Dkt. 58. On March 14, 2019, the Court ordered that the upcoming case management conference serve as a pre-motion conference. Dkt. 59. On April 10, 2019, after Smith failed to submit a letter in response to defendants’ pre-motion letters, the Court ordered Smith to file a letter outlining hеr arguments opposing summary judgment, if any. Dkt. 60. On April 11, 2019, Smith filed such a letter. Dkt. 61. In that letter, she also voluntarily dismissed her claims under the NYCHRL. Id. at 1 n.2. The same day, the Court held the pre-motion conference and set a briefing schedule for defendants’ summary judgment motion. Dkt. 62. On April 12, 2019, Smith filed a notice of voluntary dismissal of her claims against New York Presbyterian Foundation, Inc., New York Presbyterian Global, Inc., and New York Presbyterian Healthcare System, Inc. Dkt. 63. On April 15, 2019, the Court approved that dismissal, leaving the Hospital as the only remaining Hospital Defendant. Dkt. 65.
II. Legal Standards Governing Motions for Summary Judgment
To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
If the movant meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “[A] party may not rely оn mere speculation or conjecture as to the true nature of the facts to
“Only disputes over facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, a court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
In cases that involve claims of discrimination or retaliation, courts must use “an extra measure of caution” in determining whether to grant summary judgment “because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted). However, “the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Thus, even in the context of a discrimination case, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment,” Holcomb, 521 F.3d at 137; see also Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010), and courts may grant summary judgment against “discrimination claims in cases lacking genuine issues of material fact,” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (citation omitted).
Smith brings claims of discrimination, retaliation, and hostile work environment under Title VII and the NYSHRL. These relevant standards overlap substantially. Smith also brings a claim of aiding and abetting discrimination, retaliation, and other unlawful conduct under the NYSHRL, and a claim of breach of contract under state law.
The Court first addresses Smith‘s claims of race and gender discrimination under federal and state law, followed by her claims of retaliation under federal and state law, and then her claims of hostile work environment under federal and state law. Finally, the Court addresses Smith‘s remaining state-law claims.14
A. Discrimination Under Title VII and the NYSHRL
Under Title VII, it is unlawful for an employer to “discriminate against any individual with respect to his compensatiоn, terms, conditions, or privileges of employment, because of such individual‘s race, color, . . . [or] sex.”
Both Title VII and NYSHRL discrimination claims are governed by the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
If the plaintiff can demonstrate a prima facie case, “a presumption arises that more likely than not the adverse conduct was based on the consideration of impermissible factors.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (citing Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)). At that point, the burden of production shifts to the employer to “‘articulate some legitimate, nondiscriminatory reason’ for the disparate treatment.” Id. (quoting McDonnell Douglas, 411 U.S. at 802); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (clarifying that employer‘s burden is “one of production, not persuasion“).
If the employer satisfies that burden, the presumption of discriminatory intent drops away, and “the plaintiff must establish, by a preponderance of the evidence, that the employer‘s
1. Prima Facie Case
Defendants do not appear to contest that Smith has satisfied the first two elements of her prima facie case. The Court assumes that (1) as a black and African American woman, Pl. 56.1 ¶¶ 1, 14, Smith is a member of a protected class, and (2) as a registered diagnostic medical sonographer who has received regular satisfactory performance reviews and pay raises, id. ¶ 2; JSF ¶ 14, she was qualified for her job. Defendants instead argue that Smith has not demonstrated the last two elements, because she has failed to show that (3) she suffered an adverse employment action, or (4) the circumstances gave rise to an inference of discrimination. See Hosp. Mem. at 13-16; Doc. Mem. at 7-9. The Court agrees.
An adverse employment action is a “‘materially adverse change’ in the terms and conditions of employment.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation omitted). “To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (quoting Sanders, 361 F.3d at 755). “Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
The adverse action must also be made in circumstances giving rise to an inference of discrimination. The facts required to meet this element of the prima facie case will “inevitably vary in different employment discrimination cases.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001); see Little v. Nat‘l Broad Co., 210 F. Supp. 2d 330, 377 (S.D.N.Y. 2002). The circumstances giving rise to an inference of discrimination may include “the employer‘s criticism of the plaintiff‘s performance in ethnically degrading terms; or its invidious comments about others in the employee‘s protected group; or the more favorable treatment of employеes not in the protected group; or the sequence of events leading to the [adverse action].” Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)).
Smith raises several potential adverse actions. See Smith Mem. at 15-17 (in context of retaliation claim). These include her temporary reassignment to breast imaging in November 2016, the verbal warning that she received as a result of the March 23, 2017 incident, and Carroll‘s assignment to draft vascular protocols. They also include Smith‘s claims that she was subjected to excessive scrutiny, notably in the form of the Hospital‘s allowing Sica to monitor her and placing her on a PIP. None of these presents an actionable adverse action, let alone an adverse action taken in circumstances giving rise to an inference of discrimination.
a. Temporary Reassignment to Breast Imaging
The Court first considers Smith‘s temporary reassignment to breast imaging. In November 2016, Farquharson, Smith‘s supervisor, temporarily reassigned her to rotate through the breast imaging center a few days per week. JSF ¶ 29; Def. 56.1 ¶ 6. This reassignment is not an adverse action for several reasons.
Even setting aside the temporary nature of Smith‘s reassignment, it cannot be considered an adverse employment action because it did not materially change the terms and conditions of her employment. See Sanders, 361 F.3d at 755; see also Davies v. N.Y.C. Dep‘t of Educ., 563 F. App‘x 818, 820 (2d Cir. 2014) (reassignment not adverse action in retaliation context); Adeniji v. Admin. for Children Servs., 43 F. Supp. 2d 407, 426 (S.D.N.Y. 1999), aff‘d, 201 F.3d 430 (2d Cir. 1999) (table) (“Evidence of a transfer alone is insufficient to make out a case of discrimination.“). Despite the reassignment, Smith did not receive “a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss in benefits, [or] significantly diminished material responsibilities,” Sanders, 631 F.3d at 755 (citation omitted)—she maintained her title, did not lose any of her duties as a lead ultrasound technologist, and received consistent pay, see JSF ¶¶ 7, 34; Def. 56.1 ¶ 11. In addition, far from constituting a change in the terms and conditions of her job, the conducting of breast ultrasounds fell squarely within Smith‘s job responsibilities. See JSF ¶ 8 (job responsibilities included “performing ultrasound scans of the breasts“); Def. 56.1 ¶ 5 (job description of lead technologist included performing “duties of Ultrasound Technologist as needed“); see also Deitrich v. City of New York, No. 18 Civ. 7544 (CM), 2019 WL 2236585, at *5 (S.D.N.Y. May 16, 2019) (“[A]ssignments that are part of an employee‘s normal responsibilities are not adverse actions where . . . the rate of
Smith argues—disputed by defendants—that her reassignment to breast imaging was a reassignment to “a less desirable and less prestigious position.” Pl. 56.1 ¶ 61; see also id. ¶ 62. Although a transfer from an “elite” department, “which provided prestige and opportunity for advance,” to “a less prestigious unit with little opportunity for professional growth” can constitute an adverse action, de la Cruz v. N.Y.C. Human Res. Admin Dep‘t of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996), Smith has presented insufficient evidence of such here. Even construing the facts in the light most favorable to Smith and accepting that breast imaging is less desirable than the main ultrasound floor, Smith has not shown that she had any lessened opportunity for advancement, given that she maintained her job as lead ultrasound technologist and continued to carry on those duties as she rotated to breast imaging a few times per week. See JSF ¶¶ 7, 34. And Smith‘s negative view of the reassignment is not enough to yield an adverse action. See, e.g., Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (“[T]he fact that the employee views the transfer either positively or negatively does not of itself render the . . . receipt of the transfer an adverse employment action.” (alteration and citation omitted)); Garber v. N.Y.C. Police Dep‘t, 159 F.3d 1346, at *3 (2d Cir. 1998) (table) (“[A] plaintiff‘s
Further, even if the reassignment were an adverse action, Smith has not shown that it occurred in circumstances giving rise to an inference of discrimination. Smith attempts to show that she was treated differently from similarly situated lead technologists, in that “no other lead technologist was assigned to any adjacent department, besides their own, no other lead technologist was assigned anywhere.” Pl. 56.1 ¶ 55. However, Fabian Falcon, a white male lead CT technologist, rotated to the Emergency Department, in addition to working in the main CT department. Def. 56.1 ¶¶ 43-44. Although Smith conclusorily states that she believed the reassignment was part of “ongoing discrimination and harassment,” Pl. 56.1 ¶ 60, she has not presented evidence that the transfer was based on her race, color, or sex. See, e.g., Krinsky v. Abrams, No. 01 Civ. 5052 (SLT), 2007 WL 1541369, at *8 (E.D.N.Y. May 25, 2007), aff‘d, 305 F. App‘x 784 (2d Cir. 2009) (no inference of discrimination where plaintiff presented no evidence his temporary transfer was based on gender; court notes that its role “is not to evaluate the wisdom of personnel decisions, but merely to determine whether the decisions were rational and non-discriminatory” (citation omitted)).
The second potential adverse action is the verbal warning that the Hospital gave Smith in May 2017 as a result of her March 23, 2017 inappropriate exchange with Carroll in front of a patient. See JSF ¶ 35; see also Cesaratto Decl., Exs. 31-32 (documentation of verbal warnings, given May 18, 2017). But “oral and written warnings do not amount to materially adverse conduct.” Chang v. Safe Horizons, 254 F. App‘x 838, 839 (2d Cir. 2007); see also Maragh v. Roosevelt Island Operating Corp., No. 16 Civ. 7530 (JMF), 2018 WL 6573452, at *3 (S.D.N.Y. Dec. 13, 2018) (“[A] written warning alone does not constitute an ‘adverse employment action.‘” (citation omitted)); Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 366 (S.D.N.Y. 2006), aff‘d, 629 F.3d 276 (2d Cir. 2010) (formal verbal warning not adverse action). This is because “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.” Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006).
Here, the Hospital‘s warning did not constitute an adverse employment action. It enforced its preexisting disciplinary policies by giving Smith—and Carroll, JSF ¶ 35—a warning after they violated its policies governing employee conduct. See Def. 56.1 ¶ 13. In addition, the warning was not accompanied by a materially adverse change in Smith‘s employment—it did not lead to, for example, further discipline, demotion, termination, or a reduction in her performance rating. Id. ¶ 16; see Joseph, 465 F.3d at 91 (application of employer‘s disciplinary policies “without more, does not constitute adverse employment action“); Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 306 (N.D.N.Y. 2013) (“Verbal and written warnings generally do not constitute adverse employment actions unless they lead to more substantial employment actions that are adverse.” (citing Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 559-70 (2d Cir. 2011))); see also Simon v. N.Y.C. Bd. of Educ., No. 01 Civ. 6024 (DGT), 2006 WL 1210959, at *8 (E.D.N.Y. May 2, 2006), aff‘d, 240 F. App‘x 887 (2d Cir. 2007) (warning letter constituted adverse action where it ultimately led to termination).
Even if the warning could be an adverse employment action, Smith has not presented evidence that it was given in circumstances giving rise to an inference of discrimination. She and Cаrroll, also a black woman, both received the warning after violating the Hospital‘s policies. JSF ¶¶ 35, 37; Def. 56.1 ¶ 13. Smith has not shown that the warning was in any way tied to her race, color, or sex, nor has she presented any evidence that she was treated less favorably than a similarly situated employee outside of her protected group. Therefore, the warning fails to satisfy both elements three and four of the prima facie case.
c. Carroll‘s Assignment to Draft Vascular Protocols
The third potential adverse action was Carroll‘s assignment to draft vascular protocols. See JSF ¶ 42. In April 2017, Smith complained that Carroll was assigned to work on that project. Id. Smith, again, has not presented evidence that Carroll‘s work on the vascular protocols materially changed the terms and conditions of Smith‘s employment. This includes a lack of evidence that Carroll‘s assignment decreased Smith‘s responsibilities. In addition, Smith has failed to show that Carroll‘s assignment occurred in circumstances giving rise to an inference of discrimination against Smith. Smith has not alleged that Carroll, also a black woman, was treated better than she because of her race, color, or sex. See JSF ¶¶ 37, 48. Further, Carroll had a vascular certification, while Smith did not. Id. ¶¶ 43, 46. Smith agreed that Carroll‘s vascular certification was a legitimate reason for her to draft the protocols, id. ¶ 45, and voiced her support for Carroll, stating that “all technologists in the department of ultrasound are aware that Ms. Carroll is developing the ultrasound vascular protocols, which we all support,” id. ¶ 47.
d. Increased Scrutiny
Finally, Smith argues that she suffered an adverse employment action because she was subjected to increased scrutiny. See Def. 56.1 ¶ 32; Pl. 56.1 ¶¶ 72, 92. She claims that, in this vein, the Hospital allowed Sica to monitor her and placed her on a PIP. See Pl. 56.1 ¶ 98. Smith has failed to present admissible evidence to support her assertions, and, even if she hаd, these do not constitute adverse actions.
With regard to Smith‘s claims that Sica monitored her and that the Hospital placed her on a PIP, Smith does not cite admissible evidence to support her claims. Instead, the sources that she cites—the May 5, 2017 Transcript and emails from the same day, Pl. 56.1 ¶ 98; see also O‘Connell Decl., Exs. 30-31—do not, in fact, mention that prospect of Sica‘s monitoring Smith or the Hospital‘s placing her on a PIP. Cf. Ping Chow Wei, 2018 WL 5622571, at *10 (no adverse action based on alleged discriminatory comments where “[t]he record is devoid of any evidence of [defendant] berating or belittling the Plaintiff“). In addition, defendants present
However, even if Smith had presented admissible evidence and the facts were construed in her favor, these instances would not constitute adverse actions. In general, “excessive scrutiny without a tangible negative consequence to the employee does not rise to the level of an adverse employment action.” Nidzon v. Konica Minolta Bus. Sols., USA, Inc., 752 F. Supp. 2d 336, 350 (S.D.N.Y. 2010); see also Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001), aff‘d, 51 F. App‘x 55 (2d Cir. 2002) (collecting cases); Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 355 (S.D.N.Y. 2006) (same). And alleged close monitoring or observation by an employer is not an adverse action. See Boyd v. Presbyterian Hosp. in the City of N.Y., 160 F. Supp. 2d 522, 536-37 (S.D.N.Y. 2001) (“hyperintensified observation” by hospital did not constitute adverse action where plaintiff failed to present specific instances of such observation); Castro v. N.Y.C. Bd. of Educ. Pers., No. 96 Civ. 6314 (MBM), 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) (“close monitoring” by employer not an adverse action). Nor is the issuance of a PIP. See Brown v. Am. Golf Corp., 99 F. App‘x 341, 343 (2d Cir. 2004) (affirming summary judgment, in context of Title VII retaliation claim, because PIP did not constitute adverse employment action); see also Gormon v. Covidien, LLC, 146 F. Supp. 3d 509, 525 (S.D.N.Y. 2015); McGrath v. Thomson Reuters, No. 10 Civ. 4944 (JSR) (JCF), 2012 WL 2119112, at *11 (S.D.N.Y. Apr. 30, 2012), report and recommendation
Smith, whо is still employed by the Hospital as a lead ultrasound technologist, JSF ¶ 7, has not presented evidence of any negative consequences resulting from alleged increased scrutiny, and thus cannot rely on such scrutiny as an adverse action.
2. Legitimate, Nondiscriminatory Reasons
Because Smith has failed to present a prima facie case of employment discrimination, summary judgment is properly granted for defendants. Even if Smith had met her burden of presenting such a case, defendants offer legitimate, nondiscriminatory reasons for each of the alleged adverse actions.
a. Temporary Reassignment to Breast Imaging
Defendants offer two reasons for Smith‘s temporary reassignment to breast imaging. See Hosp. Mem. at 18-19; Doc. Mem. at 9-10. Each fulfills their burden of production at McDonnell Douglas step two.
First, defendants contend that Smith was reassigned to combat a staffing shortage that arose due to Urena‘s maternity leave. See Hosp. Mem. at 18; JSF ¶ 30. They selected Smith because breast imaging was part of her normal duties, see id. ¶ 8, and she was qualified to conduct breast scans, id. ¶ 31. Smith does not dispute her qualifications—in fact, she stated in her deposition that she is “the best” breast imager. Def. 56.1 ¶ 8. Addressing staffing shortages or other staffing needs is a legitimate, nondiscriminatory reason for an employment action. See Doran v. N.Y. State Dep‘t of Health Office of Medicaid Inspector Gen., No. 15 Civ. 7217 (PKC), 2019 WL 4735484, at *10 (S.D.N.Y. Sept. 27, 2019) (combatting management shortage was legitimate, nondiscriminatory reason for defendants’ promotion of candidate other than plaintiffs); Ramsey v. N.Y.C. Health & Hosps. Corp., No. 98 Civ. 1594 (RPP), 2000 WL 713045,
Second, defendants state that Smith was reassigned to improve her working relationships with the technologists in breast imaging and to familiarize herself with the workflow there. Hosp. Mem. at 18-19; see JSF ¶¶ 32, 33. As early as December 2014, there was tension between Smith and the technologists in breast imaging, see Def. 56.1 ¶ 23, and Farquharson stated that “less than professional” actions on Smith‘s part prompted the reassignment, id. ¶ 6. Farquharson viewed this reassignment as an opportunity for Smith to “step up as a leader” and collaborate with the other technologists. JSF ¶ 33. This goal of defusing interpersonal conflict between Smith and other technologists—and giving Smith the opportunity to improve in her position as lead ultrasound technologist as a result—is a legitimate, nondiscriminatory reason for the reassignment. Cf. Forte v. Liquidnet Holdings, Inc., No. 14 Civ. 2185 (AT), 2015 WL 5820976, at *10 (S.D.N.Y. Sept. 30, 2015), aff‘d, 675 F. App‘x 21 (2d Cir. 2017) (“interpersonal friction” with superior was legitimate, nondiscriminatory reason for defendant‘s termination of plaintiff); Tanay v. St. Barnabas Hosp., No. 99 Civ. 9215 (JGK), 2001 WL 262695, at *7 (S.D.N.Y. Mar. 15, 2001) (conflict with co-worker was legitimate, nondiscriminatory reason for defendant‘s transfer of plaintiff).
b. Verbal Warning
Defendants contend that the Hospital issued a verbal warning to Smith because of her unprofessional behavior in front of patients and colleagues. Hosp. Mem. at 17. Specifically, she
c. Carroll‘s Assignment to Draft Vascular Protocols
Defendants contend that Carroll was assigned to work on vascular protocols because she, unlike Smith, had a vascular certification and expressed a desire to do the work. See Hosp. Mem. at 19-20; Doc. Mem. at 10; see also JSF ¶¶ 42-43, 46. In fact, Carroll was the only technologist with such a certification. JSF ¶ 43. Smith admitted that this was a legitimate business reason for Carroll to do the work, id. ¶ 45, and later sent an email expressing the ultrasound department‘s support for Carroll‘s efforts, id. ¶ 47. Defendants clearly had a legitimate, nondiscriminatory reason for choosing Carroll to work on the protocols—she, given her certification, was better qualified than Smith, or any other technologist for that matter. See
d. Increased Scrutiny
Defendants contest that Smith was subjected to any increased scrutiny, arguing that she has presented only conclusory allegations of such scrutiny. See Hosp. Reply at 2-3; Doc. Reply at 4. But, with regard to the allegation of increased scrutiny, defendants point out that they received frequent complaints from technologists and others about Smith. See Hosp. Reply at 3; Doc. Reply at 4-5; see also, e.g., JSF ¶ 39; Def. 56.1 ¶ 24. These complaints would constitute a legitimate, nondiscriminatory reason for scrutiny and monitoring of Smith‘s work. See Davies, 563 F. App‘x at 820 (complaints from students and teachers about plaintiff‘s poor performance provided legitimate, nondiscriminatory reason for employer subjecting plaintiff to increased scrutiny and evaluation).
3. Pretext
To survive summary judgment, Smith must present “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant[s] were false, and that more likely than not discrimination was the real reason for the employment action.” Forte v. Liquidnet Holdings, Inc., 675 F. App‘x 21, 25-26 (2d Cir. 2017) (brackets omitted) (quoting Weinstock, 224 F.3d at 42); see also Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (admissible evidence must show defendants’ decision “more likely than not based in whole or in part on discrimination” (citation omitted)).
Defendants dispute each of these statements. But, on a motion for summary judgment, the Court must credit that these statements were made and must view the evidence in the light most favorable to Smith, the non-movant. The Court does so. Nevertheless, when viewing the admissible statements separately or in combination, such statements would not give a reasonable juror a basis to find that racial or gender discrimination was more likely than not a reason for the employment actions.
Statements, to be considered properly on a motion for summary judgment, must be admissible if testified to or otherwise introduced at trial. See
When evaluating the probative value of remarks in discrimination cases, courts evaluate the following factors:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level coworker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).
Henry, 616 F.3d at 149. The more removed remarks are from an employer‘s adverse action, the more likely that such remarks will be non-probative “stray remarks.” See id.; see also Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (“[S]tray remarks, even if made by a decision maker, do not constitute sufficient evidence to make out a case of employment discrimination.“); Campbell v. All. Nat‘l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) (“Stray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of the decision.“)).
Each remark cited by Smith is either inadmissible and/or a stray remark.
First, Smith contends that Farquharson told her that if she filed another EEOC complaint, “they” would say that she was “playing the black card again.” Pl. 56.1 ¶ 42 (citing Smith Depo
Second, Smith states that after Farquharson left his employment with the Hospital, he texted her that both Sica and Shankar wanted Smith to be fired. See Smith Mem. at 10-11; Pl. 56.1 ¶¶ 107, 109 (“ALL SHANKAR AND SICA WANTED WAS ZAKEENAH FIRED . . . NOTHING ELSE MATTERED.“). Reliance on these texts is problematic, however, for two reasons. First, Smith‘s 56.1 counter-statement cites to Exhibit 19 of the O‘Connell Declaration as the source of the texts. See Pl. 56.1 ¶¶ 106-09. Exhibit 19 does not contain such texts,20 nor are the texts anywhere else in the record. See Weinstock, 224 F.3d at 44 (no pretext where plaintiff did not present admissible evidence—only hearsay—that allegedly discriminatory statements were made). Second, the texts are inadmissible hearsay. Although the underlying statements of Sica and Shankar would be admissible if sourced directly to them, see Fed. R. Evid. 801(d)(2)(A), the texts themselves are out-of-court statements made by Farquharson, who is not a defendant and, at the time of the alleged texts, no longer worked for the Hospital. As a
Third, Smith states that Dr. Sophie Chang told her that Sica and Shankar were “trying to get [Smith] fired” and “don‘t like women like us,” i.e., women of сolor who held supervisor roles at the Hospital. See Smith Mem. at 10; Pl. 56.1 ¶ 44.21 This statement is a blend of inadmissible hearsay and opinion testimony lacking a proper foundation. Chang is employed by Columbia, who is not a defendant here; thus, her out-of-court statements cannot be imputed to the Hospital under Rule 801(d)(2)(D). Even if Chang were employed by the Hospital, her statements are that of a co-worker, who is not Smith‘s supervisor and has no significant role in the employment decisions at issue. As a result, Chang‘s statements concern a matter outside the scope of her employment and cannot be imputed to the Hospital. See Evans, 192 F. Supp. 2d at 262-64 (co-worker‘s statement could not be imputed to employer, and thus was inadmissible, where there was no evidence that co-worker was plaintiff‘s supervisor, that he played a role in any relevant employment decision, or that the statement related to his duties); see also Di Giovanna v. Beth Israel Med. Ctr., 651 F. Supp. 2d 193, 202-03 (S.D.N.Y. 2009) (co-worker‘s statement could not be imputed to employer where there was no evidence she “had anything to do with” the employment decision affecting plaintiff).
Fourth, Smith states that Sica asked Urena to lie to the Hospital to get Smith in trouble “and possibly lead to her termination.” Smith Mem. at 10; see Pl. 56.1 ¶ 47. Again, this
In the end, Smith is left only with her conclusory allegations that she was treated differently than other lead technologists because of her race, color, and sex. See Smith Mem. at 10; see also Pl. 56.1 ¶¶ 45–46. She agrees that none of her supervisors made disparaging comments based on her race, color, or sex, nor did she ever hear the Doctors make such comments. JSF ¶¶ 49, 51. And she never complained to the Hospital about any comments that anyone made based on her race, color, or sex. Id. ¶ 50. Smith’s conclusory allegations of discrimination are insufficient to demonstrate pretext and survive summary judgment. See Barkley, 442 F. App’x at 585; Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). The Court therefore grants summary judgment for defendants on Smith’s discrimination claim, both because Smith has failed to show that she was subjected to an adverse action and because she has presented insufficient evidence of pretext.
B. Retaliation Under Title VII and the NYSHRL
If the employer provides such a reason, “the presumption of retaliation dissipates,” and the burden shifts back to the plaintiff to prove “that thе desire to retaliate was the but-for cause of the challenged employment action.” Id. (citations omitted). Although “but-for” causation does not require a showing that retaliation was an employer’s sole motive, showing that retaliation was “simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision” is insufficient to
1. Prima Facie Case
Defendants do not contest that Smith has satisfied the first two elements of her prima facie case. See Hosp. Mem. at 22; Doc. Mem. at 10. Instead, they argue that she has failed to demonstrate that she was subjected to an adverse employment action, or that there was a causal connection between her protected activity and that action. See Hosp. Mem. at 22–23; Doc. Mem. at 11–12. The Court agrees as to the latter element.
a. Adverse Action
Although defendants make substantial arguments as to why Smith has failed to demonstrate an adverse action, the standard for an adverse action in the retaliation context, unlike the discrimination context, “is not limited to discriminatory actions that affect the terms
b. Causal Connection
The final element of causation may be proved either “directly, through evidence of retaliatory animus directed against the plaintiff by the defendant,” or “indirectly, by showing that the protected activity was followed closely by the discriminatory treatment.” Hicks, 593 F.3d at 170 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Smith has failed to adduce evidence of either.
Direct evidence is “evidence tending to show, without resort to inference, the existence of a fact in question.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir. 1992); see also Redd v. N.Y. State Div. of Parole, 923 F. Supp. 2d 371, 385–87 (E.D.N.Y. 2012) (analyzing direct evidence in context of retaliation claim). The Second Circuit has explained that such
First, she relies on Farquharson’s statement that if she filed an EEOC complaint, “they’re just going to say . . . Ms. Smith is playing the black card again.” See Pl. 56.1 ¶ 42; Smith Mem. at 14. However, several inferences are required to conclude that this was an admission of retaliation. Most important, it is unclear who “they” refers to, and Farquharson does not state that “they” did anything because Smith filed a complaint. In other words, the statement is unconnected to any adverse action.
Second, Smith cites an email from Sica, in which he says that it is “obvious to all that the current structure and supervision of the ultrasound section is not working. I am asking that the administration intervene so we can move forward . . .” See Pl. 56.1 ¶ 87; Apr. 2017 Emails at 3; Smith Mem. at 15. Although not noted by Smith, Sica continues his sentence, “. . . with creating a more unified and professional department and focus our time and energy on providing the best patient care possible.” Apr. 2017 Emails at 3. Smith contends that Sica is asking to have her replaced because of her protected activity, see Smith Mem. at 15, but several large inferential leaps are required to reach that conclusion. It is not clear from Sica’s email that his idea of “mov[ing] forward” was replacing Smith, nor is it clear that if that were the case, his motivation was Smith’s filing оf the EEOC complaint. Neither statement comes close to a direct admission by a decisionmaker that he or she took an action based on a retaliatory motive. Cf. Hicks,
Third, Smith cites a statement from Sica, made in the May 7, 2017 meeting, that he wanted the radiologists to be protected. See Def. Reply ¶ 97; May 7, 2017 Tr. at 15; Smith Mem. at 15. In this meeting, Sica stated that “when an inappropriate or a complaint email gets sent out, we need to address it, and there needs to be a write-up about it.” May 7, 2017 Tr. at 15. He further stated, “I don’t want to ever hear again that, well, there’s no documentation or thing aren’t being investigated.” Id. And, last, he said that “Columbia Radiology insists that we’re—that the radiologists are protected from this.” Id. Smith frames these statements as Sica’s “mak[ing] it clear that he wanted to protect himself and doctors from employees who engaged in protected activity.” Smith Mem. at 15. These statements, however, demonstrate that Sica asked for complaints to be investigated and documented. They do not express an intent to retaliate based on such investigations or reflect a direct admission of retaliation—such a conclusion would require an inferential step.
A causal connection can also be proved indirectly by demonstrating temporal proximity between the protected activity and an adverse action. See Zann Kwan, 737 F.3d at 845. Although the Second Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship,” Gorman-Bakos v. Cornell Co-op. Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001), the Supreme Court has suggested that the temporal proximity “must be very close,” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curiam) (internal quotation marks and citation omitted). Smith has presented two instances of prоtected activity: her 2014 EEOC complaint, filed on June
Smith cannot demonstrate a causal connection between the 2014 EEOC complaint and any of the alleged adverse actions, the earliest of which occurred in November 2016 (the breast imaging reassignment). This period of more than two years suggests “no causality at all.” Clark Cty. Sch. Dist., 532 U.S. at 274 (no causality for adverse action 20 months after protected activity); see also Altieri v. Albany Pub. Library, 172 F. App’x 331, 333 (2d Cir. 2006) (same for 21 months).
The 2017 EEOC complaint has more potential. Defendants were aware of this complaint on January 11, 2017, before Carroll’s assignment to draft vascular protocols in April 2017, see JSF ¶ 42,25 and before Smith received a verbal warning on May 18, 2017, see Cesaratto Decl., Exs. 31, 32. However, the three-month gap until Carroll’s assignment and the four-month gap until the verbal warning are insufficient to yield an inference of causal connection. See Caddick v. Pers. Co. I LLC, No. 16 Civ. 7326 (ALC), 2018 WL 3222520, at *9 (S.D.N.Y. June 29, 2018) (“Nine or ten weeks is at the outer bounds of what is acceptable where, as here, a plaintiff relies solely on temporal proximity to demonstrate causation.”); Flood v. UBS Asset Mgmt., Inc., No. 10 Civ. 374 (RJH), 2012 WL 288041, at *17 (S.D.N.Y. Feb. 1, 2012) (“[C]ourts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation.”
Smith also cannot demonstrate any connection between the 2017 complaint and her reassignment to breast imaging, which occurred in November 2016, Def. 56.1 ¶ 6, or defendants’ alleged increased scrutiny of her, which the record reflects that she first alleged on December 27, 2016, Pl. 56.1 ¶ 72. That is because both actions occurred before defendants were aware of the drafted EEOC charge. See Marshall v. N.Y.C. Bd. of Elections, 322 F. App’x 17, 19–20 (2d Cir. 2009) (affirming summary judgment where transfer occurred one month before plaintiff filed charge); Holmes v. Astor Servs. for Children and Families, No. 16 Civ. 2260 (CS), 2017 WL 3535296, at *7 (S.D.N.Y. Aug. 16, 2017) (no causal connection where allegedly
2. But-for Causation
The legitimate, nondiscriminatory reasons offered by defendants for the adverse actions in the discrimination context apply to the retaliation claim, too. See supra pp. 32–35. Even assuming arguendo that Smith met her burden of presenting a prima facie case, she has failed to show that defendants’ reasons were pretextual. While temporal proximity can support a causal connection at the prima facie stage, it is “insufficient to defeat summary judgment at the pretext stage.” Zann Kwan, 737 F.3d at 847. Instead, Smith must present some evidence that retaliation was the but-for cause of each adverse action. See Montanez v. McDean LLC, 770 F. App’x 592, 595 (2d Cir. 2019).
In short, defendants have marshalled substantial evidence of their nondiscriminatory reasons for each of the alleged adverse employment actions: They reassigned Smith to breast imaging temporarily because Smith was qualified to perform breast imaging, and they needed to fill a staffing shortage created by Urena’s maternity leave and hoped to reduce tensions between Smith and the other technologists, see JSF ¶¶ 30–33; they issued a verbal warning to Smith
Smith has only offered a few statements to show ostensible pretext. These include the text messages from Farquharson, the conversation with Chang, and the allegation that Sica attempted to get Urena to lie to the Hospital about Smith. Each of these is inadmissible and thus does not create a genuine issue of material fact as to pretext. See supra pp. 39–41. Smith has also offered the statement from Farquharson that, if she filed an EEOC complaint, she would be considered to be “playing the black card again.” As discussed earlier, this is a nonprobative stray remark. See supra pp. 37–39. Smith has also cited the email from Sica asking, in April 2017, for Hospital intervention to help the radiology department “move forward.” Apr. 2017 Emails at 3. The email is not connected to any particular employment decision, and the content of this comment does not appear to evince a retaliatory motive. Lastly, Smith cites Sica’s statements asking for the Hospital to investigate complaints and stating that Columbia wanted the radiologists to be “protected from this.” May 7, 2017 Tr. at 15. Again, these statements are not connected to an employment decision, and their content expresses a desire to have investigations of complaints—not a desire to retaliate based on those investigations. Even if these three
In the end, Smith is left to combat defendants’ legitimate, nondiscriminatory reasons for the adverse actions with her conclusory claim that defendants retaliated against her. See Hill, 467 F. Supp. 2d at 365 (holding that plaintiff’s conclusory allegation of excessive scrutiny, even when such scrutiny occurred close in time to protected activity, failed to demonstrate pretext). Such threadbare allegations cannot carry the day. No reasonable juror could find, based on this record, that retaliation was the but-for cause of defendants’ adverse actions. The Court therefore grants summary judgment for defendants on Smith’s retaliation claims.
C. Hostile Work Environment Under Title VII and the NYSHRL
Hostile work environment claims under both
Courts evaluate whether an environment is “hostile” or “abusive” by examining the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23. To prevail, a plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were “sufficiently continuous and concerted in order to be deemed pervasive.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (citation omitted). Finally, “[a] plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class.” Brennan, 192 F.3d at 318.
Smith’s evidence to support her hostile work environment claim is quite thin. She argues, conclusorily, that she was discriminated against because she was a woman of color in a lead technologist role, she made complaints of such discrimination, and defendants subjected her to continuous adverse actions that affected her work performance. See Smith Mem. at 19. Although Smith does not discuss the statements she relied on for her discrimination and retaliation claims, the Court considers those here, too. These instances fall far short of the severe or pervasive conduct needed to support a hostile work environment claim.
First, Smith’s general allegations that defendants took adverse actions against her are insufficient to support a hostile work environment claim. While defеndants’ alleged adverse acts
Second, even if the adverse actions were considered, Smith has presented almost no evidence—aside from her general allegation that she was subjected to discrimination as a woman of color—linking the alleged harassment to her race, color, or sex. See Alfano, 294 F.3d at 377 (excluding from consideration decisions lacking link to protected characteristic). Although actions that are neutral on their face can at times be considered in assessing the totality of the circumstances, that is only true where there is “some circumstantial or other basis for inferring that [such] incidents . . . were in fact discriminatory.” Id. at 378. The only evidence Smith offers that relates to these protected characteristics are Farquharson’s “black card” comment and Chang’s comment that the Doctors “don’t like women like us.” See JSF ¶¶ 49, 51 (none of Smith’s supervisors made disparaging comments based on her race, color, or sex, nor did she hear the Doctors make such comments). And of these two comments, only Farquharson’s is admissible. See supra pp. 38–40. But even considering both comments, along with the other evidence in the record, there is not sufficient circumstantial evidence that the other acts Smith alludes to—i.e., alleged adverse actions such as her reassignment to breast imaging, Carroll’s assignment to work on vascular protocols, Smith’s verbal warning, or the increased scrutiny placed on Smith—or the other statements she cites are, in fact, connected to race or gender.
Third, Farquharson and Chang’s comments fall far short of the severity or frequency required for a successful hostile work environment claim. As to severity, courts in this Circuit have granted summary judgment to employers despite conduct far more severe than that alleged here. See, e.g., Marshall, 322 F. App’x at 18–19 (finding no hostile work environment where homosexual supervisor showed plaintiff a “sexual device he had purchased for his partner,” even though plaintiff “may have been legitimately offended” by such talk; had a violent temper; “stood over her with clenched fists on several occasions”; disparaged her education; and engaged in “crass behavior”); Murray, 528 F. Supp. 2d at 278–79 (finding male-to-male statements in the workplace such as “you’re such a bitch,” “good morning ladies,” “when are you going to come out of the closet,” and “are you ladies going to the parade?” insufficient to defeat summary judgment on hostile work environment claim); Mack v. Port Auth. of N.Y. & N.J., 225 F. Supp. 2d 376, 388–89 (S.D.N.Y. 2002) (finding allegations that supervisor called plaintiff a “boy,” made petty criticisms of nonwhite workers, gave disparate work assignments, and engaged in disparate enforcement of lunch and break limitations inadequate for race-based hostile work environment claim); Dayes v. Pace Univ., No. 98 Civ. 3675 (WHP), 2000 WL 307382, at *1, 4–5 (S.D.N.Y. Mar. 24, 2000), aff’d, 2 F. App’x 204 (2d Cir. 2001) (granting summary judgment to defendant where plaintiff was subjected to six sexual comments and multiple requests for dates, was screamed at by a supervisor, and was touched on the back); Lucas v. S. Nassau Cmtys. Hosp., 54 F. Supp. 2d 141, 147–49 (E.D.N.Y. 1998) (denying NYSHRL hostile work environment claim where supervisor brushed against plaintiff three times, touched plaintiff three times, briefly touched plaintiff’s back or shoulders five to seven other
The Court therefore holds that no reasonable juror could find that a hostile work environment existed as to Smith, and grants defendants summary judgment on Smith’s hostile work environment claims.
D. Remaining Claims
Because the Court has found that there is no underlying violation of the
This leaves Smith’s final claim—breach of contract under state law. See Compl. ¶¶ 164–70. Because the Court has disposed of Smith’s federal Title VII claims, it must decide whether to retain jurisdiction over this remaining claim. “[D]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction.”
Judicial economy and convenience favored resolution of Smith’s
For the foregoing reasons, the Court grants defendants’ motions for summary judgment as to Smith’s
SO ORDERED.
Paul A. Engelmayer
United States District Judge
Dated: February 18, 2020
New York, New York
Notes
Citations to a party‘s Rule 56.1 statement incorporate by reference the documents cited therein. Where facts stated in a party‘s Rule 56.1 statement are supported by testimonial or documentary evidence, and are denied by a conclusory statement by the other party without citation to conflicting testimonial or documentary evidence, the Court finds such facts true. See S.D.N.Y. Local Rule 56.1(c) (“Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.“); id. at 56.1(d) (“Each statement by the movant or opponent . . . controverting any statement of material fact[] must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).“).
In a similar vein, Smith asserts that Hughes suggested that she be put on a PIP and that Sica monitor her. Pl. 56.1 ¶ 98. Defendants dispute this fact, arguing that neither piece of evidence Smith cites—the transcript of a May 5, 2017 meeting, O‘Connell Decl., Ex. 30, or an email chain from that same day, id., Ex. 31—support her proposition. Defendants are correct: Neither source even mentions a PIP or the possibility of Sica monitoring Smith. Thus, the Court takes these facts—that Smith has never been suspended, demoted, or placed on a PIP—as admitted.