Summary
determining that "for FMLA eligibility purposes, an employee's term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee"
Summary of this case from Meky v. Jetson Specialty Mktg. Servs., Inc.Opinion
03-CV-6049T(F).
May 10, 2004
DECISION and ORDER
INTRODUCTION
Plaintiff Darryl Mackey ("plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Family Medical Leave Act, codified at 29 U.S.C. § 2617, claiming that Unity Health System ("Unity") and Bruce Gehring, Nursing Director of the Inpatient Psychiatric Unit at Unity Health System ("Gehring") (collectively "defendants"), discriminated against him on the basis of his race and gender. Mackey, who is an African-American male, claims that the defendants discriminated against him by subjecting him to a hostile working environment. Plaintiff also alleges that defendants retaliated against him for complaining of racial discrimination.
Defendants deny plaintiff's allegations and move for summary judgment on grounds that plaintiff: (1) is not protected by FLMA; (2) has failed to establish a prima facie case of discrimination or retaliation; and (3) is unable to pursue his allegations against Gehring because there is no individual liability under Title VII and there are no allegations that Gehring was personally involved in the alleged discrimination. Defendants further argue that even if plaintiff has stated a prima facie case of discrimination, he has failed to demonstrate that Unity's reason for terminating him is pretextual.
BACKGROUND
In October, 1999, plaintiff, through Nurse Finders of the Finger Lakes, Inc., began temporary employment as a Registered Nurse in the Acute Psychiatric Inpatient Unit of Unity Health. In April 2000, plaintiff was hired as a permanent employee of Unity and promoted to "Charge Nurse" of the 4100 Unit of Unity's St. Mary's campus. As charge nurse, plaintiff was responsible for supervising other nurses in th 4100 Unit, a specialized inpatient psychiatric unit with 20 beds. Plaintiff's supervisors included Clinical Coordinator and Mousseau ("Mousseau"), who reported to the Nursing Director of Unity's Inpatient Clinic, defendant Bruce Gehring ("Gehring").
On several occasions during his employment with Unity, plaintiff met with Mousseau and Gehring to discuss his performance and demeanor, specifically addressing coworker concerns that he was "hyper-defensive" and argumentative. On August 6, 2000, Mousseau cited Mackey for insubordination stemming from a confrontation he had with one of his subordinates, who was later reprimanded by Gehring. In October 2000, Mackey left work early without notifying his supervisor and later threatened to resign. Afterwards he expressed that he in fact did not wish to resign and was reprimanded by being given a verbal warning. While meeting with Gehring again in November, plaintiff indicated that he was feeling anxious and sometimes overreacted to situations, and said that he needed a vacation, which he took shortly thereafter. Upon returning to Unity in early December plaintiff again met with Mousseau and Gehring, where he reported that he felt discriminated against, but would not explain the reasons. On December 14, 2000, plaintiff received a performance evaluation which stated that his aggressiveness "can impact teamwork negatively."
The tension plaintiff felt culminated when, on the morning of December 19, 2000, he joined a staff meeting in progress, and raised concerns that he believed minority nurses and white nurses were treated differently with respect to abuse allegations. He became increasingly disturbed and had to leave the room. Once in the hallway, he started to cry and eventually walked to the Employee Health Department. Later that day he filed an Employee Accident Report alleging that he had been subjected to a stressful situation and stated that "there has been conspiracies also to encourage me to leave my job." Thereafter, plaintiff filed a notice and proof of claim for disability benefits on the grounds of "mental distress."
Plaintiff's claim was granted and he received full disability until he was cleared to resume work starting June 1, 2001.
On December 21, 2000, plaintiff took leave from his employment at Unity, citing medical necessity, specifically, anxiety and depression brought on by an allegedly hostile work environment. Plaintiff's primary care physician, Dr. Christine Stewart, recommended that plaintiff refrain from returning to work until January 3, 2001. On that date, Dr. Linda Karbonit, of Finger Lakes Occupational Health Services, recommended that plaintiff not return to work until January 17, 2001. On January 15, 2001, he filed for FMLA benefits, which were denied by Unity because it determined that he was ineligible. By letter dated January 17, 2001, Unity notified plaintiff that his employment was terminated, citing an immediate need to fill his position due to staffing shortages. However, no additional nurses were hired to fill plaintiff's vacancy. Plaintiff, once cleared for work on June 3, 2001, was re-employed as a contract employee for Nurse Finders, and placed at St. Anne's Nursing Home, where he was eventually offered a permanent position.
On November 6, 2001, plaintiff filed a charge of discrimination against Unity with the New York State Division of Human Rights ("DHR"), alleging that he was subjected to a hostile work environment based on his race. After an investigation, DHR concluded that there was insufficient evidence that plaintiff had been discriminated against, and dismissed the charge. Plaintiff commenced this action on January 4, 2003.
Although plaintiff enumerates eight causes of action in his complaint, Counts I and III are identical, and will not be treated as separate claims.
DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure provides that a party is entitled to summary judgment as a matter of law only where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." F.R.C.P. 56(c) (2003). The party seeking summary judgment bears the burden of demonstrating that no genuine issue of material fact exists, and in making the decision the court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (citing Marvel Characters v. Simon, 310 F.3d 280, 285-86(2d Cir. 2002)). "Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Id.However, where, as here, a plaintiff claims he is the victim of unlawful discrimination, an award of summary judgment is ordinarily inappropriate. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). As the Second Circuit has recognized, employment discrimination
is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a "smoking gun," such as a notation in an employee's personnel file, attesting to a discriminatory intent. A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence.Id. (internal quotations omitted).
Nonetheless, to defeat a motion for summary judgment, a plaintiff must rely on more than mere conclusory allegations that the discrimination occurred. "Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989,998 (2d Cir. 1985).
A. Family Medical Leave Act Claim
Plaintiff claims that Unity terminated him on January 17, 2001, in order to avoid granting him medical leave, to which he was entitled under the Family Medical Leave Act ("FMLA"). Defendants deny that they owed any obligation to plaintiff under the FMLA, and that even if he is protected by the FMLA, his period of leave exceeded the maximum leave allowed under the statute, and thus negated any obligation they might have owed him.
The Family Medical Leave Act, codified at 29 U.S.C. § 2601,et seq., entitles eligible employees to a total of 12 workweeks of leave during any 12-month period due to, inter alia, a serious health condition which interferes with the employee's ability to perform his job. 29 U.S.C. § 2612(a). The statute defines an eligible employee as an employee who has been employed by the employer for at least 12 months and who has worked for the employer at least 1,250 hours in the 12 months prior to the leave requested. 29 U.S.C. § 2611(2)(A).
On January 17, 2000, plaintiff began work at Unity as a Registered Nurse in the Acute Psychiatric Inpatient Unit through a temporary placement program operated by Nurse Finders of the Finger Lakes Region ("Nurse Finders"). Unity did not hire plaintiff on a permanent basis until April 24, 2000. From January 17 until April 24 plaintiff was paid by Nurse Finders, not Unity.See Defendants' Statement of Facts Not In Dispute, Ex. 6 (Doc. No. 18). As such, defendants contend that they have no obligation to plaintiff under the FMLA because he was employed by Unity for only eight months, and thus he does not meet the requirements set forth in § 2611(2)(A).
Defendants do not dispute that plaintiff meets the minimum number of hours worked requirement.
Nonetheless, Unity and Nurse Finders are considered "joint employers" for FMLA purposes. Pursuant to 29 C.F.R. § 825.106(b), "joint employment will ordinarily be found to exist when a temporary or leasing agency supplies employees to a second employer." As such, "[e]mployees jointly employed by two employers must be counted by both employers, whether or not maintained on one employer's payroll, in determining employer coverage and employee eligibility. . . ." 29 C.F.R. § 825.106(d). Moreover, for FMLA eligibility purposes, an employee's term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee. Miller v. Defiance Metal Products, Inc., 989 F. Supp. 945 (N.D.Ohio 1997). However, since plaintiff was at least "jointly" employed by Unity from January 17, 2000 to January 17, 2001 he meets the twelve month requirement set out in § 2611(2)(A), and was eligible to receive leave under FMLA.
Defendants further argue that even if plaintiff is eligible for medical leave under FMLA, their decision to terminate him does not violate FMLA because he could not have returned to work within the statutory twelve week period. An employer does not violate FMLA where it terminates an employee during his allotted twelve weeks of FMLA leave, and the employee would not have been able to return to work at the end of those twelve weeks. Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160-61 (2d Cir. 1999).
Here, defendants offer uncontested evidence that plaintiff was unable to return to work until June 2001 — two months after the expiration of his statutory twelve week medical leave allotment. Plaintiff contends that he would have been able to return to work within the twelve week period, but that news of his termination caused him to suffer a relapse in condition, necessitating additional recovery time. However, plaintiff offered no evidence of this allegation. Since a nonmoving party, in order to defeat a motion for summary judgment must rely on more than bald assertions of facts, plaintiff's FMLA claim is dismissed. B. Claims Against Gehring Individually
At oral argument, plaintiff's counsel explained that plaintiff was told by his treating physician not to open the letter from Unity dated January 17, 2003, as it would probably disturb him — without knowing its contents. This is not evidence sufficient to defeat a motion for summary judgment.
In his complaint, plaintiff alleges that Gehring should be held liable as an individual under Title VII and § 1981 for the alleged discrimination he faced. However, it is well-settled that individuals are not amenable to suit under Title VII in their individual capacities. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000). In addition, an individual will be held liable under § 1981 only if personally involved in the discrimination. Id. Here, plaintiff admits that he "does not allege that Gehring was personally involved in the race and sex harassment or racial slurs." Plaintiff's Memorandum of Law In Opposition to Defendants' Motion for Summary Judgment, p. 20-21 (Doc. No. 20). By plaintiff's own admission, Gehring was not personally involved in the alleged discrimination, and therefore his Title VII and § 1981 claims against Gehring in his individual capacity are dismissed with prejudice.
C. Hostile Work Environment Claims
Plaintiff further alleges that defendants discriminated against him based on his race in violation of Title VII and 42 U.S.C. § 1981 by creating and maintaining a hostile work environment. Plaintiff's version of events constitutes sufficient evidence to defeat defendant's motion for summary judgment, since, "the burden that must be met by an employment discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minimis. Tomka v. Seiler Corporation, 66 F.3d 1295, 1308 (2d Cir. 1995).
Plaintiff also alleges that defendants discriminated against him based on his gender, but offers no specific proof of this alleged discrimination. However, to the extent that he alleges that he was subjected to unlawful discrimination based on his gender, the analysis is identical to the race-based analysis the court employs.
The standards of proof in Title VII and § 1981 cases are similarly applied, and this Court will evaluate plaintiff's Title VII and § 1981 claims under Title VII analysis. See Hargett v. National Westminster Bank USA, 78 F.3d 836, 838 (2d Cir. 1996). In order to recover on a claim of a racially hostile work environment in violation of Title VII, a plaintiff must establish that his workplace was permeated with instances of racially discriminatory conduct such as "discriminatory intimidation, ridicule, and insult." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Whether the environment may be considered sufficiently hostile or abusive to support such a claim is to be measured by the totality of the circumstances, including the frequency and severity of the discriminatory conduct, whether such conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff's work performance. Id. at 23. Proving the existence of a hostile work environment involves showing both "objective and subjective elements: the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Alfano v. Costello, 294 F.3d 0365, 374 (2d Cir. 2002).
Here, plaintiff alleges that statements made by his coworkers between March 2000 and December 2000, created a racially hostile work environment, including: (1) his supervisor Mousseau's pronouncement "I don't like anything black"; (2) a nurse who said "I don't like faggots with braids"; (3) nurse Mary Jo Schultz told him she was not going to take orders from a black man; (4) Karen Fussili stated that she did not trust black men and that "black men were only good for sex"; and (5) the nursing staff's use of racial epithets directed toward only the black patients. Plaintiff claims that as a result of the discrimination he suffered, the nurses whom he supervised were insubordinate and failed to perform the tasks assigned to them, thereby affecting his own performance.
Where, as here, the alleged harassment is perpetrated by the plaintiff's coworkers, an employer will be liable if the plaintiff demonstrates that "the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it." Feingold v. New York, 2004 WL 916629, *10 (2d Cir. 2004). Plaintiff claims that he repeatedly reported these incidents of racial harassment to his supervisors, but that no action was taken to stop the discrimination. Defendants contend that plaintiff never expressed that he felt that he was subjected to workplace discrimination until December 2000 when he told Gehring that he felt discriminated against but refused to explain why.
However, plaintiff offers proof that, viewed in a light most favorable to him, demonstrates that Unity was aware that he felt he was treated unfairly based on his race. Specifically, plaintiff offers a copy of an email, that while undated, refers to a meeting scheduled for October 12, 2000. In the email communication, Gehring related to McIntyre that plaintiff "indicated that he was the only African American charge nurse and felt that was why he was not being treated fairly." Defendant's Statement of Facts Not In Dispute, Ex.13 (Doc. No. 18). From this statement, a fact finder may reasonably infer that defendants were aware that he felt he was being discriminated against. The record is devoid of evidence that defendants took steps to correct the behavior plaintiff felt was racially discriminatory. As such, questions of material fact preclude a grant of summary judgment in Unity's favor at this time.
Moreover, Unity's assertion that it is entitled to summary judgment by means of the Burlington/Farragher affirmative defense is unavailing. Under the Burlington/Farragher affirmative defense, a defendant will not be held liable for a hostile work environment where: (1) the employer had an anti-discrimination policy and complaint procedure in place; and (2) the plaintiff failed to utilize that procedure. See Leopold v. Bacarrat, Inc., 239 F.3d 243, 245 (2d Cir. 2000).
As described above, a question of fact remains concerning plaintiff's use of the complaint procedure. While defendants contend that plaintiff failed to inform his supervisors that he felt he was being discriminated against, there is evidence that Gehring knew of plaintiff's concerns in October 2000. As such, Unity is not entitled to a grant of summary judgment in its favor by relying on the Burlington/Farragher defense.
D. Title VII — Retaliation Claim
Plaintiff claims defendants retaliated against him for complaints of discrimination he lodged with his supervisors by actively prevented him from transferring to another department and eventually terminating him. Retaliation claims brought pursuant to Title VII are analyzed under the McDonnell Douglas burden-shifting test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this test, for a plaintiff to prevail he must first establish a prima facie case of discrimination by showing: (1) he engaged in a protected activity; (2) he was performing his occupational duties satisfactorily; (3) he was subjected to an adverse employment action; under (4) circumstances giving rise to an inference of unlawful discrimination. Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). Once the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason ("LNDR") for the adverse employment action. Once the defendant proffers a LNDR, the burden then shifts back to the plaintiff to show that the defendant's LNDR was pretextual and that the defendant's real motivation was discriminatory. Id.
Plaintiff proffers sufficient evidence to establish a prima facie case of retaliation in violation of Title VII. First, plaintiff engaged in a protected activity when he complained about the discrimination he perceived in his employment. Second, defendants offer no evidence that at the time plaintiff was denied the transfer he was performing his job duties unsatisfactorily. In fact, only a couple months earlier he had been promoted to the supervisory position of "Charge Nurse." Third, the denial of plaintiff's request for a transfer is an adverse employment action for Title VII retaliatory discrimination purposes, as is termination of employment. See Harrison v. New York City Admin. for Children's Services, 2003 WL 21640381 (S.D.N.Y. 2003) (A denial of a request for transfer may constitute an adverse employment action where there is an unfavorable working environment in the employee's place of employment prior to the request.). Lastly, since plaintiff claims that the denial and eventual termination closely coincided with the timing of his discrimination complaints, a causal nexus exists between the protected activity and the adverse employment action.
Nonetheless, defendants argue that they are entitled to summary judgment in their favor because plaintiff is unable to prove that the proffered LNDR for denying the transfer and the eventual termination of employment were pretextual. However, the issue of pretext "is ordinarily for the jury to decide at trial rather than for the court to determine on a motion for summary judgment." Holtz v. Rockefeller Co., 258 F.3d 62, 79 (2d Cir. 2001). Once again, "the burden that must be met by an employment discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minimis. Tomka v. Seiler Corporation, 66 F.3d 1295, 1308 (2d Cir. 1995). As such, defendants' motion for summary judgment on plaintiff's Title VII retaliation claim is denied.
CONCLUSION
For the reasons set forth above, I find that: (1) plaintiff was unable to return to work within the time specified by the Family Medical Leave Act; (2) defendant Gehring was not personally involved in the incidents giving rise to plaintiff's allegations of discrimination; and (3) material issues of fact preclude granting summary judgment in favor of defendant Unity on plaintiff's Title VII hostile work environment and retaliation claims. Accordingly, defendants' motion for summary judgement is granted as to plaintiff's FMLA claim and claims against Gehring, and those claims are dismissed. However, defendant's motion for summary judgment on plaintiff's Title VII hostile work environment and retaliation claims is denied. ALL OF THE ABOVE IS SO ORDERED.