Clarke v. Nassau Health Care Corp.

CHERYL CLARKE, ESQ., Plaintiff, v. NASSAU HEALTH CARE CORPORATION,SHARON POPPER, in her official and individual capacity,and KARLE KAMPE, in his official and individual capacity, Defendants.

08-CV-2400(DRH)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: December 13, 2013

MEMORANDUM AND ORDER

APPEARANCES:

For the Plaintiff:

LAW OFFICES OF FREDERICK K. BREWINGTON

By: Frederick K. Brewington, Esq.

For the Defendants:

CLIFTON BUDD & DEMARIA, LLP

By: Sheryl Ann Orwel, Esq.

VENABLE LLP

Rockefeller Center

By: Brian J. Clark, Esq.

HURLEY, Senior District Judge:

Plaintiff, Cheryl Clarke ("Clarke" or "plaintiff") commenced this action against defendants Nassau Health Care Corporation ("NHCC"), Sharron Popper ("Popper"), and Karle Kampe ("Kampe") (collectively "defendants") asserting claims of race-based discrimination and retaliatory employment practices in violation of Title VII of 42 U.S.C. § 2000(e) (Title VII), 42 U.S.C. § 1983, 42 U.S.C. § 1981, and New York's Human Rights Law, Executive Law § 296. (Sec. Am. Compl. ¶ 1, as Defs.' Ex. A.) Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56"). For the reasons set forth below, the defendants' motion is granted.

BACKGROUND

The following facts, drawn from the parties' local Rule 56.1 statements, the pleadings, and prior decisions in this case, are undisputed unless otherwise noted.

Procedural History

In an Order dated June 13, 2008, this Court, adopting Magistrate Judge Orenstein's Report and Recommendation in its entirety, granted defendants' motion pursuant to Federal Rule of Civil Procedure 21 to sever into separate actions the claims of seven plaintiffs, including Clarke, each of whom claimed that defendants had discriminated against him or her on the basis of race. (See 06-CV-4757, Docket No. 64 (Memorandum and Order, dated June 13, 2008)). In the same opinion, the Court also dismissed plaintiffs' Title VI claims in their entirety and their Title VII claims against all of the individual defendants, including defendants Popper and Kampe. (Id. at 14-15.) In addition, the Court dismissed Clarke's procedural due process claim. (Id. at 13.)

Plaintiff's Employment at NHCC

Plaintiff is "an African American female who started working at defendant NHCC as an Associate General Counsel in March of 2001" under the civil service category "Attorney III," and with a starting salary of $80,000. (Pl.'s R. 56.1 Counterstmt. ¶¶ 1-2; Defs.' R. 56.1 Stmt. ¶ 6.) Plaintiff's primary responsibilities included "(a) labor and employment law matters, including the review and investigation of discrimination complaints; (b) work in connection with the NHCC's numerous outside contracts; (c) corporate compliance reporting¹ and coordination of the Faculty Practice Plan in accordance with the Corporate Integrity Agreement² ("CIA"); and (d) legal issues related to patient care." (Defs.' R. 56.1 Stmt. ¶ 7.) At the start of her employment, the Legal Department had three other attorneys: Louis Savinetti ("Savinetti"), the General Counsel, Kevin O'Mara ("O'Mara"), the Deputy General Counsel, and Brian Baker ("Baker"), an Associate General Counsel. (Pl.'s R. 56.1 Counterstmt. ¶ 3.) Baker, a White employee who possessed the same job title and civil service category as plaintiff, commenced his employment one month prior to plaintiff with a starting salary of $75,000. Another Caucasian employee, Meyer, was also hired as an Associate General Counsel one year after plaintiff at a starting salary of $65,000. (Defs.' R. 56.1 Stmt. ¶¶ 9-11).

"In March 2002, Savinetti left the General Counsel position" and O'Mara was named acting General Counsel, a position he occupied until his departure in October of 2002. (Id. ¶¶ 18-19.) As a result, "there was a vacancy for the position of General Counsel" and NHCC received resumes from various applicants including Clarke, Baker, and Sharon Popper who previously had not been employed by NHCC. (Id. ¶¶ 20, 22.) Ultimately, Richard Turan, an NHCC administrator, decided to hire Popper "based on her prior experience . . . as the General Counsel for ten years at a Medical Center," although plaintiff claims that NHCC hired defendant Popper "based on its racial animus towards African-American employees and [intended] to prevent [her] from professionally advancing." ((Id. ¶ 26; Pl.'s R. 56.1 Stmt. ¶ 26.) "Popper commenced employment in January 2003 and both [plaintiff] and Baker reported to [her]." (Defs.' R. 56.1 Stmt. ¶ 26.)

Plaintiff's Performance and Ultimate Termination

Defendants offer two specific instances of plaintiff's deficient job performance. First, defendants assert that "[a]s part of her compliance work, Plaintiff was responsible for coordinating the training of the NHCC's faculty and employees in accordance with the CIA," and that plaintiff neglected this responsibility. (Id. ¶¶ 28, 32, 38.) Consequently, in October of 2003 a review of NHCC's corporate compliance training programs showed that NHCC was not in compliance with the CIA and "Popper met with plaintiff to discuss the report of non-compliance." (Id. ¶ 33.) Plaintiff, however, disputes that she was at fault and contends that the meeting was called only "to humiliate [her] by removing key responsibilities from [her] and re-assigning them to a Caucasian employee." (Pl's. R. 56.1 Stmt. ¶ 33.) Thereafter, the task of putting the hospital incompliance with the CIA was assigned to Lana Copeta, a non-attorney employed in the Academic Affairs Department. (Defs.' R. 56.1 Stmt. ¶ 34.)

Defendants also contend that in March of 2004 Clarke "drafted a contract in such a manner that its plain meaning prevented the NHCC from paying $250,000 to one of its vendors for services rendered" and that thereafter plaintiff was insubordinate in refusing to sign an affidavit that purportedly would have rectified the error. (Defs.' R. 56.1 Stmt. ¶¶ 39-42.) Plaintiff, however, denies this allegation claiming "[i]ssues surrounding vendors and disbursements to vendors were the responsibility of the Finance Department, not [her]." (Pl's. R. 56.1 Stmt. ¶ 40.) Plaintiff claims she refused to sign the affidavits because "they were not used to explain a drafting error, but rather were used to accuse [her] of sole wrongdoing." (Id. ¶ 42.)

Defendants claim that "Plaintiff's job performance deteriorated and [that] Popper was always finding errors in her work," resulting in plaintiff's probation in June of 2005 and ultimate termination in July of 2005, a year after she filed a discrimination complaint with the New York State Department of Human Rights ("NYSDHR") in May 2004. (Defs.' R. 56.1 Stmt. ¶¶ 43-46.)³ As a consequence of plaintiff's poor performance, defendants brought 18 formal charges against plaintiff under New York Civil Service Law § 75. (Id. ¶¶ 46-47.) The charges, each of which is accompanied by a record of the particular event, include: "Inattentive to Duties; Refusal to Respond to Supervisor; Inability to Perform Legal Assignments; Inadequate Legal Drafting Skills; Inadequate Legal Research; Refusal to Respond to Supervisor; Refusal to Follow Supervisor'sDirectives; Poor Drafting Skills and Sloppy Work; Failure to Supervise Outside Counsel; Insubordination." (Id. ¶ 47.) Plaintiff "concurs with the facts as set forth [under these charges], however, [she] disputes the proposition which has been inferred - that [she] was guilty of said charges." (Pl's. R. 56.1 Stmt. ¶ 47.) Plaintiff also claims that her termination was "because of the unlawful acts of Defendant Popper and administration of Defendant NHCC." (Id. ¶ 46.)

According to the opinion of the hearing officer who presided over the Article 75 proceeding, plaintiff and her counsel failed to attend the scheduled evidentiary hearing, however, finding that NHCC had provided substantial evidence, the hearing officer found plaintiff guilty of 16 of the 18 charges and recommended that the plaintiff "be dismissed and discharged from service." (Findings of Fact, Conclusions and Recommendations, dated January 20, 2006, Defs.' Ex. L at 17-18.) Subsequently, plaintiff filed an Article 78 proceeding in Nassau Supreme Court, seeking reinstatement based on a violation of her due process rights, and the state court denied that petition. (Order and Judgment, dated July 6, 2006, Defs.' Ex. N.)

DISCUSSION

I. Applicable Law and Legal Standards

Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994.) The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under thegoverning law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986.) No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c).)

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996.) The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," ...