Perard v. Jam. Hosp. Med. Ctr.

PASCALE PERARD, Plaintiff, v. JAMAICA HOSPITAL MEDICAL CENTER, Defendant.

18-CV-6661 (KAM)(RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 20, 2020

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

On November 21, 2018, plaintiff Pascale Perard commenced this action against Jamaica Hospital Medical Center ("JHMC", "Hospital" or "defendant"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000 et seq.¹, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law 290, et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. Admin. Code 8-101, et seq., seeking a declaratory judgment and damages to address the injuries she allegedly suffered due to racial and/or national origindiscrimination, hostile work environment, and retaliation. (ECF No. 1, Complaint.) On December 14, 2018, plaintiff filed an amended complaint, raising the same claims. (ECF No. 7, "Am. Compl.")

Pending before the court is defendant's motion for summary judgment. For the reasons set forth below, the court grants in part and denies in part defendant's motion.

PROCEDURAL HISTORY

On December 27, 2017, plaintiff filed a Verified Complaint with the U.S. Equal Employment Opportunity Commission ("EEOC"). (ECF No. 36-5, Ex. C.) On August 23, 2018, the EEOC issued a Dismissal and Notice of Rights, which granted plaintiff the right to sue in federal court. (ECF No. 36-6, Ex. D.) On November 21, 2018, plaintiff commenced this action by filing a complaint in federal court. (ECF No. 1, Compl.) On December 14, 2018, plaintiff filed her Amended Complaint. (ECF No. 7, Am. Compl.)

On December 13, 2019, defendant filed a letter requesting a pre-motion conference in anticipation of its motion for summary judgment and requesting a briefing schedule. (ECF No. 28, Letter Requesting a Pre-Motion Conference.) On December 20, 2019, plaintiff filed her letter in opposition to defendant's request for a pre-motion conference. (ECF No. 29, Letter.) On December 23, 2019, the parties participated in apre-motion conference. The parties reported that they had attended a mediation, and were not able to settle the case. The court approved a briefing schedule for defendant's motion for summary judgment.

On February 28, 2020, defendant filed its motion for summary judgment on the claims in plaintiff's amended complaint. (ECF No. 32, Notice of Motion for Summary Judgment.) Defendant asserts that "the evidence shows that Plaintiff was not discriminated against, or even treated 'less well' than others because of her race and nationality, or based on any other protected characteristic," "most of the incidents of which Plaintiff complains are time-barred," and with respect to any claims that are not time-barred, there is no material issue of fact that Plaintiff has failed to establish that she is entitled to relief under any theory. (ECF No. 33, "Def. Mem." at 9.) Plaintiff's opposition brief argues that defendant's motion should be denied "based upon the existence of multiple material issues of fact from which a juror could find that Ms. Perard was the victim of discrimination based upon her race and national origin" and that defendant excluded certain "critical" material facts. (ECF No. 36, "Opp. Mem." at 7.)

BACKGROUND

I. Factual Background The facts in this section are taken from defendant's Rule 56.1 statement (ECF No. 33-17, "Def. 56.1"), plaintiff's response to defendant's Rule 56.1 statement (ECF No. 36-1, "Pl. 56.1"), and the parties' declarations and exhibits, and they are considered in the light most favorable to plaintiff, the non-moving party.

FRCP 56 and Local Rule 56.1

The court notes that, as required by Federal Rule of Civil Procedure 56 and Local Rule 56.1, defendant's 56.1 statement of undisputed material facts is supported by citations to admissible evidence. In plaintiff's counter-56.1 statement, plaintiff did not comply with Local Rule 56.1(d), which provides in relevant part, "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement 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)." L.R. 56.1(d). Nor did plaintiff submit a "separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." See Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("L.R.") 56.1(b).

Because plaintiff fails to cite to evidence as required by the Local Rules and the Federal Rules of CivilProcedure, the court has examined the facts and supporting evidence that defendant set forth in its 56.1 statement to be undisputed. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir 2003) (where "the opposing party [] fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted") (citing Local Rule 56.1(c)).

The court has independently reviewed defendant's citations to facts in the record, which plaintiff has largely admitted. Although plaintiff purports to dispute a small number of facts, the court generally finds those disputed facts to be trifling rather than material. (See generally 56.1 Resp. ¶¶ 3, 20, 24, 27, 41, 66.) Moreover, as noted above, plaintiff has not cited to any evidence in support of the naked denials and assertions in plaintiff's 56.1 responsive statement. (Compare 56.1 Resp. ¶ 29 and ECF No. 33-11, Ex. H; compare 56.1 Resp. ¶ 58 and JA, Ex. G, 119:3-18; JA, Ex. E, 49:2-17; compare 56.1 Resp. ¶ 66 and JA, Ex. G, 131:5-25.²) Furthermore, although plaintiff's opposition memorandum accuses defendant of"conveniently exclud[ing] from its list of 'material facts' certain facts that are critical to this matter," plaintiff failed to provide a counterstatement of material facts and supporting evidence pursuant to the Local Rules and the Federal Rules of Civil Procedure. Thus, pursuant to Federal Rule of Civil Procedure 56(e)(2) and (3), the court may properly consider defendant's facts undisputed for purposes of the motion for summary judgment.

Plaintiff's Employment at JHMC (2002-2018)

Plaintiff, an American citizen who self-identifies as black and Haitian, was hired by JHMC in 2002 as a registered nurse. (ECF No. 36-1 ("56.1 Resp.") ¶¶ 10-12; ECF No. 36-4, Perard Dep. 34:4-9.) Plaintiff immigrated to the United States over 30 years ago. (56.1 Resp. ¶ 9.)

JHMC, the defendant, is situated in and serves an underserved community, and was struggling financially. (56.1 Resp. ¶ 3.) The Hospital employs a diverse workforce, which reflects the neighborhood in which the Hospital is located, Richmond Hill, with its population that speaks approximately 138 languages. (Id. ¶¶ 2, 4.) The Hospital attempts to hire bilingual employees because the ability to communicate in the same language as a patient facilitates patient care. (Id. ¶ 7.) The Hospital's staff speaks approximately 100 different languages. (Id. ¶ 8.)

Plaintiff was initially hired to work as a staff nurse in the Emergency Department ("ED") by Ms. Maryanne Settner, and went on to hold two other positions at the Hospital, also within the ED. (Id. at 34:10-20.) Plaintiff worked full-time at JMHC for approximately 16 years in the ED, until her resignation on May 25, 2018. (Id. at 33:19-25-33:1-2; ECF No. 36-1 ¶¶ 88-91.) Plaintiff is married to Carl Perard, who is also black and Haitian. (56.1 Resp. ¶¶ 14-15.) As of February 2020, Mr. Perard worked at JMHC as the Assistant Head Nurse of the Intensive Care Unit ("ICU"). (Id. ¶ 14.)

The Hospital has a policy regarding how to handle employee discrimination complaints. (Id. ¶ 16.) Plaintiff never received a negative performance evaluation, from February 2015 until she resigned from JMHC. (Id. ¶ 18.) In addition, plaintiff was never subject to discipline during her 16-year tenure at JHMC. (Id. ¶ 19.)

From approximately April 2014 until December 2017, Anata Kanevsky was employed as the Director of Nursing of the ED and the ICU at the Hospital. (Id. ¶ 20.) Kathleen Scher was hired as Chief Nursing Officer ("CNO") in February 2015, and Ms. Kanevsky reported directly to CNO Scher. (Id. ¶¶ 21-22.) Ms. Kanevsky was plaintiff's direct supervisor from 2014 until plaintiff went on medical leave on about November 27, 2017. (Id. ¶ 23.) Though the parties dispute whether Ms. Kanevsky wasalso Carl Perard's direct supervisor, the parties agree that Ms. Kanevsky made the decision to promote Carl Perard from registered nurse to Assistant Head Nurse. (Id. ¶¶ 24-25.) Ms. Kanevsky and plaintiff both worked the day shift, 7:00 a.m. to 3:00 p.m., and Ms. Kanevsky often "covered" for plaintiff and frequently dealt with the negativity regarding the ED department in order to protect plaintiff. (Id. ¶¶ 26-27.)

The parties dispute the frequency with which plaintiff encountered CNO Scher during the latter three years of plaintiff's employment. Plaintiff agrees, however, that CNO Scher only visited the ED five times, for less than 15 minutes each time, during a period of a year and a half. (Id. ¶¶ 29-30.) The parties further agree that CNO Scher belittled the entire ED team. (Id. ¶ 31.) CNO Scher never "messed" with Carl Perard. (Id. ¶ 32.) Plaintiff alleges that Robin Blackwell, a registered nurse who previously worked as a Director in the Medical/Surgical Department and then as a Director of Regulatory Affairs, between 2012 until the present, made discriminatory racial comments to plaintiff, including calling her "black Haitian," which Ms. Blackwell has denied in a sworn declaration. (Id. ¶ 33; ECF No. 33-1, Blackwell Decl. ¶¶ 2-6.) It is undisputed that Ms. Blackwell's husband of 43 years is black, and that they have four biracial children together. (ECF No. 36-1, 56.1 Resp. ¶¶ 34-35.)

Ms. Blackwell did not work with or supervise plaintiff in the ED. Ms. Blackwell, who had no work responsibilities...