Forrester v. Corizon Health, Inc.

278 F.Supp.3d 618

Bernice FORRESTER, Plaintiff,

v.CORIZON HEALTH, INC., Defendant.

15–CV–06964 (NGG) (LB)

United States District Court, E.D. New York.

Signed September 30, 2017

Joshua Alexander Bernstein, Josh Bernstein PC, New York, NY, for Plaintiff.

Jennine DiSomma, Jakob Benjamin Halpern, Saibe, LLC, Florham Park, NJ, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District JudgeAfter Plaintiff Bernice Forrester was terminated from her job at Rikers Island's North Infirmary Command, she brought an employment discrimination action against her employer, Prison Health Services, Inc., and its successor, Defendant Corizon Health, Inc., under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 – 213, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 – 34, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 – 54, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8–101 to 8–131.¹ In that case, this court granted the defendants' motion for summary judgment as to Plaintiff's federal claims, declined to exercise supplemental jurisdiction over Plaintiff's NYCHRL claims, and dismissed the NYCHRL claims without prejudice. (Mem. & Order ("M & O") (Forrester I Dkt. 81) at 55.) The Second Circuit affirmed that decision. Forrester v. Prison Health Services. Inc., 651 Fed.Appx. 27 (2d Cir. 2016) (summary order).

Plaintiff duly refiled her suit against Defendant in New York State court, alleging substantially the same facts but solely asserting claims under the NYCHRL for disability discrimination (on both "adverse employment action" and "harassment" theories) and retaliation. (Compare Am. Compl. ("Forrester I Am. Compl.") (Forrester I Dkt. 16), with Compl. (Dkt. 11–1); Def. Reply to Pl. Response to Def. Rule 56.1 Statement ("Def. Rule 56.1 Reply") (Dkt. 40–1) ¶¶ 293–94.) Defendant has again moved for summary judgment, this time on the grounds that this court's judgment in Forrester I precludes Plaintiff from asserting or establishing her NYCHRL claims, and that she has failed to show that she was discriminated against because of her disability or retaliated against because of protected conduct. (Def. Mot. for Summ. J. (Dkt. 37); Def. Mem. of Law in Support of Mot. for Summ. J. ("Def. Mem.") (Dkt. 37–1).)

For the reasons stated below, the court GRANTS Defendant's motion for summary judgment.

I. BACKGROUND

The court assumes the parties' familiarity with the factual history of this case, which is set forth in detail in Magistrate Judge Bloom's Report and Recommendations ("R & R") and this court's opinion in Forrester I. (R & R (Forrester I Dkt. 76); M & O.) A brief summary of that history follows to guide the discussion below.

Plaintiff worked at the medical facilities at the New York City correctional facility on Rikers Island for more than two decades, performing well and receiving several promotions. (M & O at 2.) In 2004, Plaintiff was promoted to health service administrator ("HSA"), and, in 2009, transferred to NIC. (Id. ) As HSA, Plaintiff was the senior administrative officer of the NIC, and was responsible for supervising administrative staff, acting as a liaison with the City of New York Department of Correction and the Department of Health, and overseeing other administrative matters, (Id. ) In 2005, Director of Operations Fazal Yussuff began to supervise her. (Id. )

Plaintiff suffers from diabetes, which occasionally causes her blood sugar levels to fluctuate in the morning, making her feel confused and disoriented. (Id.; R & R at 3–4.) When Plaintiff was unwell, she would wait for her blood sugar to stabilize before commuting to work. (Pl. Dep. Tr. ("Pl. Dep.") (Decl. of Joshua Bernstein ("Bernstein Decl."), Ex. 6 (Dkt. 39–3)) 96:11–17.) On these days, she would call in to work to report that she would be late. (M & O at 3.) When, in 2008, these imbalances became more frequent, Plaintiff requested intermittent leave under the FMLA, permitting her to come into work late on days when her blood sugar was high or low. (Id. ) PHS granted Plaintiff's request for leave, although it questioned whether she misused leave on one occasion and instructed her to give notice of when she would be arriving at work on days when she was running late. (Id. at 4.) Yussuff also questioned whether Plaintiff was eligible to take intermittent leave for two consecutive terms for the same condition (which PHS Director of Human Resources Jerome Donahue established she was eligible to do) (id. at 3–4), sent Plaintiff several emails expressing concerns with her time and attendance (id. at 4–5), and sent other groups of employees emails urging them to arrive on time (id. at 5). From 2006 until October 2011, Plaintiff was late to work 232 times, of which 40 instances of lateness were recorded as "FMLA leave," 49 instances were marked as due to sickness, and 121 were marked "late." (Id. at 4.)

In August 2010, Department of Health employees complained to PHS about the administration of the NIC, and the Department of Health threatened to take over the facility. (Id. at 5.) The Department of Health liaison responsible for monitoring PHS's operations, Homer Venters, indicated to PHS that new leadership was needed at the NIC. (Id. ) In response, PHS decided to convert the HSA position into a clinical position and terminated Plaintiff due to her lack of a clinical degree. (Id. ) Venters expressed concerns about this plan to Donald Doherty, a senior vice president of PHS, and PHS temporarily reinstated Plaintiff to her position with back pay for the three days that she did not work between her termination and her reinstatement. (Id. at 5–6; R & R at 8.) For her part, Plaintiff requested reassignment to an HSA position in another jail and complained that Yussuff had harassed her for taking FMLA leave. (M & O at 5; R & R at 8–9.)

In March 2011, a panel of executive staff members, including Yussuff, conducted Plaintiffs performance review for the previous year. (M & O at 6.) In this review, Plaintiff received a composite score of 1.12 on a four-point scale, which fell between "needs improvement" and "meets expectations" on PHS's rubric. (Id. ) In April 2011, a team of PHS executives discovered "horrific conditions" in the NIC, which one executive described as unsanitary, "cluttered with debris," and missing up-to-date supplies and sufficiently full oxygen tanks. (R & R at 11.) The same month, a Department of Health monitor reported to Plaintiff that the NIC's main center was not adequately supplied for patient care and that various machines there had not been checked since the previous December. (Id. at 10.) The Department of Health also reported to PHS several patient complaints, including that staff had failed to change an incontinent patient's briefs and the cast and bandages on another patient's leg in a timely manner. (Id. at 11.) In the spring of 2011, Venters recommended that the NIC's leadership, including Plaintiff, should be transferred. (Id. ) Doherty determined that, in light of Plaintiff's existing performance problems, she should be terminated or demoted to the position of administrative assistant to an HSA. (M & O at 6.) Plaintiff accepted the demotion but stated that she viewed the move to be discriminatory. (Id. )

Also in 2011, to PHS learned that a high-profile inmate's health information had been accessed inappropriately and that there had been violations of Defendant's email encryption policy. (R & R at 15.) In response, PHS (and, following the merger, Corizon) reminded all employees of the company's "zero tolerance policy" for violations of patient privacy law, and Doherty authorized employee relations manager Eileen McNemey to audit employees' emails. (M & O at 7.) As part of this audit, McNemey reviewed Plaintiff's emails and found ten emails that Plaintiff had forwarded to her personal email account with the term "BING" in the subject line. (Id. ) Attached to these emails were unencrypted documents containing daily "BING reports," which were generated by the Department of Corrections and contained inmates' personally identifiable information, including information about their gang affiliations, health status, and whether they were HIV-positive. (Id. ) Plaintiff was immediately suspended pending an investigation. (Id. at 8) On October 21, 2011, the Department of Corrections informed Doherty that it deemed these emails to be a security breach and that Plaintiff's security clearance, which she needed in order to work on Rikers Island, was indefinitely suspended. (Id. ) Six days later, Defendant fired Plaintiffs, citing her security breach and the consequent loss of her security clearance. (Id. )

II. PROCEDURAL HISTORY

A. Forrester I

On January 24, 2012, Plaintiff filed a pro se complaint in this court, alleging that PHS and Defendant had violated the ADEA by firing her, giving her a "sub-par" evaluation, demoting her, and ultimately firing her again, all on the basis of her age. (Compl. (Forrester I Dkt. 1) at 1, 3–4.) After obtaining counsel, Plaintiff filed an amended complaint that asserted claims for age discrimination and disability discrimination under the NYCHRL (Am. Compl. (Forrester I Dkt. 16) ¶¶ 74–79), retaliation under the NYCHRL (id. ¶¶ 80–82), age discrimination under the ADEA (id. ¶¶ 83–85), disability discrimination and retaliation under the ADA (id. ¶¶ 86–91), and interference with FMLA rights (id. ¶¶ 92–97). Following discovery, the defendants moved for summary judgment. (Def. Mot. for Summ. J. (Forrester I Dkt. 65); Def. Mem. of Law in Supp. of Mot. for Summ. J. ("Forrester I Def. Mem.") (Forrester I Dkt. 65–1); Pl. Mem. in Opp'n to Def. Mot. for Summ. J. ("Forrester I Pl. Opp'n") (Forrester I Dkt. 67).) The court referred this motion to Magistrate Judge Lois Bloom. (Order Referring Mot. for Summ. J. (Forrester I Dkt. 74).)

On January 5, 2015, Judge Bloom issued an R & R recommending that the court grant Defendant's motion for summary judgment as...