Goffe v. NYU Hosp. Ctr.

201 F.Supp.3d 337

Niesje GOFFE, Plaintiff,

v.NYU HOSPITAL CENTER, Peter Vargas, Jasmine Cabrera, Jessica Lugo, and Melissa Delacastillo, Defendants.

14-CV-4988

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

Signed August 22, 2016

Gregory R. Preston, Preston & Wilkins, PLLC, 3000 Hempstead Tpke, Suite 317, Levittown, NY 11756, 212-809-5808, gpreston@pwlawllc.com, for Niesje Goffe.

Richard L. Steer, Jonathan Samuel Hershberg, Tara Toevs Carolan, Maxwell David Rosenthal, Tarter Krinsky & Drogin LLP, 1350 Broadway, 11th Floor, New York, NY 10018, 212-216-8000, rsteer@tarterkrinsky.com, jhershberg @tarterkrinsky.com, ttoevs@tarterkrinsky.com, mrosenthal@tarterkrinsky.com, for NYU Hospital Center, Peter Vargas, Jasmine Cabrera, Jessica Lugo, Melissa Delcastillo.

MEMORANDUM & ORDER

Jack B. Weinsten, Senior United States District Judge

Table of Contents

I. Introduction...340

II. Facts...340

A. Defendants...340

B. Plaintiff's tenure at NYUHC...341

C. Alleged Discrimination...344

D. EEOC Charge...346

E. The Instant Action...346

III. Law...346

A. Summary Judgment Standard...346

B. Title VII and New York State Human Rights Law...347

1. Disparate Treatment...347

2. Hostile Work Environment...348

3. Retaliation...349

C. 42 U.S.C. § 1981...350

D. New York City Human Rights Law...350

IV. Application of Law to Facts...351

A. Statute of Limitations...351

B. Disparate Treatment by NYUHC...352

1. Prima Facie Case...352

2. Non-Discriminatory Explanation...353

3. Pretext...353

C. Hostile Work Environment by NYUHC...354

D. Retaliation by NYUHC...357

E. New York City Human Rights Law...358

F. Section 1981 by Individual Defendants...359

V. Conclusion...359

I. Introduction

This is an employment discrimination case. It has some interest since it deals with differences in training and discipline provided to different ethnic groups by their employers.

Plaintiff worked as a clerk in the outpatient laboratory at NYU Hospital Center ("NYUHC"). She alleges that based on her race she suffered discrimination at the hands of her Hispanic supervisors. She brings claims against the hospital and her individual supervisors and colleagues for disparate treatment, hostile work environment, and retaliation under Title VII and the New York Human Rights Law, and violations of the New York City Human Rights Law. She seeks at least $2,500,000 in damages for emotional distress, and attorneys' fees.

Defendants NYUHC, Peter Vargas, Jasmine Cabrera, Jessica Lugo, and Melissa Delcastillo ("Defendants") have moved for summary judgment. Defendants' motion is granted in part and denied in part.

II. Facts

A. Defendants

NYUHC is a hospital located in Manhattan. Pl.'s Resp. to Defs.' Local Civ. R. 56.1 Statement of Undisputed Material Facts, May 24, 2016, ECF No. 43 ("56.1 Response"), at ¶ 1. NYUHC has adopted a policy against workplace harassment and discrimination, and distributes statements of that policy to all new employees. NYUHC directs employees to make any complaint of workplace harassment or discrimination either to the Employee Relations Department or to a member of NYUHC's senior management team. Id. at ¶ 97.

Non-party Angela Pratt, an African-American female who was the administrative director of the outpatient laboratory, hired defendant Peter Vargas in 2004 as the Customer Service Supervisor. Id. at ¶¶ 2, 6. Vargas is of Italian and Puerto Rican heritage. Id. at ¶ 11. Ms. Pratt also hired defendants Jasmine Cabrera, Jessica Lugo, and non-party Edison Veras. Id. at ¶¶ 3-4. In 2009, Vargas was promoted to Administrative Director of the outpatient laboratory. Id. at ¶ 7. At some point after his promotion, Vargas hired defendant Melissa DelCastillo. Decl. of Gregory R. Preston, May 20, 2016, ECF No. 46 ("Preston Decl."), at Ex. 24 (Oct. 26, 2015 Dep. Tr. of Peter Vargas), at 34:12-18. Cabrera, Lugo, and DelCastillo are Hispanic. 56.1 Response at ¶ 10. Mr. Veras had been hired prior to plaintiff's employment in the outpatient laboratory; he left before she was hired, but returned after she began working there. Id. at ¶¶ 4-5.

As the Administrative Director, Vargas oversaw the outpatient laboratory, which was divided into three departments: customer service, phlebotomy, and clerical. Id. at ¶ 8. During plaintiff's employment, there were five supervisors working under Vargas: DelCastillo in customer service; Theresa Tyler and Tony Arceo in phlebotomy; and Lugo and Cabrera in clerical. Id. at ¶ 9.

B. Plaintiff's tenure at NYUHC

Plaintiff was hired by NYUHC on April 19, 2010 through a job security fund pursuant to a collective bargaining agreement between the League of Voluntary Hospitals and Homes of New York and 1199SEIU United Healthcare Workers East. Id. at ¶¶ 15-16, 19. Although Vargas wanted to hire another candidate, it was his understanding that he was required to hire plaintiff pursuant to the terms of the collective bargaining agreement. Id. at ¶ 18; Preston Decl. at Ex. 1 (E-mail chain between Peter Vargas and Maria Felipe).

As part of her training, for roughly two-and-a-half hours each afternoon, plaintiff sat with the employees in the outpatient laboratory's "processing area," "observ[ing] and tak[ing] notes." 56.1 Response at ¶ 25. Plaintiff would also observe the people who were already in the area processing samples, and take notes. Id. at ¶ 28. DelCastillo sat with plaintiff once briefly, for no more than 15 minutes, while plaintiff was registering patients. During this observation plaintiff deleted all of the patient demographics and had to start over again. Id. at ¶ 94.

A "Test on Policy and Procedures," dated May 12, 2010, indicates that plaintiff scored an unsatisfactory 38 out of 100. Decl. of Jasmine Cabrera in Supp. of Defs.' Mot. for Summ. J., Mar. 25, 2016, ECF No. 36 ("Cabrera Decl."), at Ex. A. An "Employee Exam on Policy & Procedures in the Outpatient Lab," dated May 21, 2010, reflects that plaintiff scored 56.5%. Decl. of Peter Vargas in Supp. of Defs.' Mot. for Summ. J., Apr. 7, 2016, ECF No. 40 ("Vargas Decl"), at Ex. D.

An "Initial Competency Assessment," dated May 27, 2010, indicates that plaintiff performed unsatisfactorily in many of her duties and was "unable to meet the minimum requirements of a General Clerk." Cabrera Decl. at Ex. B. That same day plaintiff was terminated by Vargas due to substandard performance. Vargas Decl. at Ex. E; 56.1 Response at ¶¶ 35-36.

According to the termination memorandum given to plaintiff, her termination was based on her making the following errors:

• 17 orders placed missing required signatures and identification of samples received;

• 12 orders placed without the required patient identification numbers;

• 1 order placed on an incorrect patient;

• 2 orders placed with incorrect patient demographics;

• 3 missing required tests;

• 4 incorrect tests ordered; and

• 1 missing copy to physician;

Vargas Decl. at Ex. E.

Because plaintiff's probationary period had been inadvertently miscalculated and had passed, NYUHC was forced to reinstate plaintiff's employment. 56.1 Response at ¶ 43. Plaintiff was reinstated on June 1 or 2, 2010, with full back pay. Id. at ¶ 44.

On June 4, 2010, plaintiff was placed on a performance improvement plan as a result of her continuing to "make significant errors that are a potential compromise of Patient Care." Vargas Decl. at Ex. F. As part of the plan, plaintiff was provided with a "Competency Assessment for Re-Training Weekly Meeting Calendar." The purpose of the calendar was to create specific timeframes to discuss the previous weeks' progress, to provide her with an opportunity to review all the events of the previous weeks associated with her re-training, and to discuss any questions or concerns she had with Vargas. Id. at Ex. G; 56.1 Response at ¶ 48. Entries on the calendar showed significant improvement; plaintiff completed the performance improvement plan by July 1, 2010. Vargas Decl. at Ex. G.

On June 30, 2010, plaintiff completed an "Employee Exam on Policy & Procedures in the Outpatient Lab." She scored a satisfactory 89%. Id. at Ex. I.

On July 1, 2010, a "Competency Assessment for Re-Training," indicating the areas in which plaintiff was to be assessed, was signed by Vargas. The document indicated that plaintiff would be assessed in the following areas: proper verification of patient demographics, proper verification of tests ordered and special information, order entry procedure in Netlims, ordering Misc tests in Netlims, answering the telephone in Customer Service, performing add-ons, and looking up specimen requirements. Id. at Ex. H. Plaintiff signed the document. Id. ; 56.1 Response at ¶ 51.

On September 15, 2010, plaintiff had a "Verbal Conference" with Cabrera regarding eleven errors plaintiff had made; the documents memorializing the conference do not indicate the period in which the errors were made. According to the conference record, plaintiff had six errors for missed tests, two errors for an incorrect test, one error for a missing comment, one error for a missing source, and one error for a carbon copy. Cabrera Decl. at Exs. C-D. Plaintiff disputes whether the errors she was accused of making were actually errors or were her fault. See Decl. of Niesje Goffe, May 24, 2016, ECF No. 48 ("Goffe Decl."), at ¶¶ 17-21, Exs. 7-8.

On October 1, 2010, plaintiff had a "Verbal Conference" with Lugo regarding eight errors plaintiff had made in September. According to the documentation of the conference, plaintiff had one incorrect label, one incorrect test, and six missed tests. Decl. of Jessica Lugo in Supp. of Defs.' Mot. for Summ. J., Apr. 6, 2016, ECF No. 38 ("Lugo Decl."), at Ex. A (Oct. 1, 2010 Verbal Conference). Plaintiff disputes whether the errors she was accused of making were actually errors or were her fault. See Goffe Decl. at ¶ 22, Ex. 9.

On October 28, 2010, Vargas met with plaintiff and her union delegate to discuss multiple issues. Vargas Decl. at Ex. J. The first issue was plaintiff's excessive absenteeism. Id.; 56.1 Response at ¶ 60. Plaintiff was issued a "Verbal Warning—Substandard...