Smalls v. N.Y. Hosp. Med. Ctr. of Queens

JASON SMALLS, Plaintiff, v. THE NEW YORK HOSPITAL MEDICAL CENTER OF QUEENS,and DARLENE MERCIECA as an aider and abettor, Defendants.

13-CV-1257 (RRM) (CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 15, 2015

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Jason Smalls sued his employer, defendant The New York Hospital Medical Center of Queens ("NYHQ" or the "Hospital"), and supervisor, defendant Darlene Mercia, alleging that they discriminated against him on the basis of his race and retaliated against him when he reported the discrimination. Defendants move for summary judgment on all claims. For the reasons set forth below, defendants' motion is granted.

BACKGROUND¹

Plaintiff, an African-American man, began working as a per diem paramedic at the Hospital in March of 1999. (Pl. Rule 56.1 Counter Statement (Doc. No. 40-2) at ¶¶ 6, 11.) On January 2, 2002, he was promoted to full-time paramedic, and on April 7, 2009, he was promoted to Assistant Supervisor of the Emergency Medical Services ("EMS") Department. (Id. at ¶¶ 7, 10.) Like all new Assistant Supervisors (whether newly hired or promoted) plaintiff was placed on a probationary period after he was hired. (Id. at ¶ 16²; Decl. of Lorraine Orlando("Orlando Decl.") (Doc. No. 43) at ¶ 18.) In this new position, plaintiff worked with Peter Kwiath, a Caucasian man and the only other Assistant Supervisor in the EMS Department at the time, and reported directly to Madeline Fong, the EMS Supervisor. (Pl. Rule 56.1 Counter Statement at ¶¶ 12, 17.)³ Fong was supervised by defendant Mercieca, who was employed as the Administrative Director for Emergency Medicine at the Hospital beginning in May of 2009. (Id. at ¶ 24; Declaration of Darlene Mercieca ("Mercieca Decl.") (Doc. No. 42) at ¶ 4.)

As an Assistant Supervisor in the EMS Department, plaintiff supervised EMTs and paramedics and was responsible for preparing and implementing department schedules, ensuring adequate staffing and shift coverage, maintaining the ambulance base, and managing payroll, billing, quality assurance, and supplies, among other tasks. (Pl. Rule 56.1 Counter Statement at ¶ 14.) Plaintiff and Kwiath worked different shifts as Assistant Supervisors - plaintiff worked from 5:00 a.m.-1:00 p.m., while Kwiath worked from 3:00 p.m.-11:00 p.m. or from 4:00 p.m.-midnight.⁴ (Id. at ¶ 15.)

On May 20, 2009, before plaintiff finished his probationary period, Fong placed him on a Performance Improvement Plan ("PIP") - a common tool used to help educate and train Hospital employees. (Id. at ¶ 18.) The only negative comment in plaintiff's PIP is Fong's note in the "Scheduling" section that plaintiff "needs more practice on filling vacancies." (Orlando Decl. at Ex. H.) Fong filled out another PIP two weeks later, noting that plaintiff still needed to "perform [his] scheduling responsibilities alone." (Id. at Ex. I.) He also mentioned continuing issues withplaintiff's scheduling on the ensuing three PIPs.⁵ (Id.) On November 13, 2009, plaintiff's probationary period was extended for an additional three months. (Pl. Rule 56.1 Counter Statement at ¶ 22.) The reason given was that plaintiff struggled with disciplining his former colleagues and holding them accountable, acting more as "one of the guys" than as a supervisor.⁶ (Orlando Decl. at Ex. J at NYHQ 097.) Plaintiff claims that after a billing meeting in either 2009 or 2010, at which Fong was present, Mercieca said to him "let's call a spade a spade." (Pl. Rule 56.1 Counter Statement at ¶ 83.)

In 2010, Fong left the Hospital and plaintiff began reporting directly to Mercieca. (Id. at ¶ 25.) Soon after Fong's departure, Mercieca met with plaintiff and Kwiath to reorganize responsibilities within the EMS Department in order to account for Fong's departure. (Id. at ¶ 26.) As a result of this meeting, plaintiff and Kwiath shared responsibility for scheduling and completing narcotics paperwork, plaintiff was solely responsible for payroll and primarily responsible for inventory, and Kwiath was primarily responsible for completing statistics and reviewing unit activity logs. (Id. at ¶¶ 28, 29.) Plaintiff consistently describes his responsibilities as "more significant" than those of Kwiath, specifically citing the fact that payroll was a task that "required a few hours each week to complete." (Id.) Plaintiff also claims that he was permitted to attend Fire Department of New York ("FDNY") quarterly meetings with approval when Fong was his supervisor, but after Mercieca became his supervisor, she told him that attending these meetings was not part of his role. (Id. at ¶ 85.)

In plaintiff's October 31, 2010 evaluation form Mercieca describes him as "a pleasure tohave on staff," says that he took on increased responsibility "with a smile," and learned a new system so well he could serve as a "resource for the staff." (Id. at ¶ 32; Mercieca Decl. at Ex. At at NYHQ 074.) The two areas Mercieca highlights for improvement are plaintiff's continued issues with distinguishing "between friends who are staff and his role in management," and the importance of plaintiff collaborating better with other EMS management when handling issues for the first time. (Id. at NYHQ 074-75.) Ultimately, she noted that he was "an asset to me and the department," and that she was "happy to have Jason as part of my team and look[ed] forward to his development in his role." (Id.)

In December 2010, Mercieca walked into the ambulance base where she found plaintiff and one of the paramedics ("C.W."), who was working on a computer after the end of his shift.⁷ (Pl. Rule 56.1 Counter Statement at ¶ 38.) Later, Mercieca checked the Hospital's electronic time-keeping system and discovered that C.W. was still clocked in even though his shift had ended. (Id. at ¶ 39.) She then audited C.W.'s time records and pay, and found that he had been consistently paid for unauthorized overtime recorded after the end of his shift, but there was no evidence that any work was performed. (Id. at ¶ 40.) When Mercieca questioned plaintiff about these records, he told her that he had not reviewed the time records before approving the overtime because he was "too busy," and stated further that he probably overpaid a lot of employees as a result. (Id. at ¶ 41; Mercieca Decl. at Ex. C at NYHQ 118.)

After an investigation of several months, Mercieca concluded that plaintiff had failed to properly review time records, review and approve overtime requests, and take action to address unauthorized overtime, resulting in his continuous approval of overtime payments to C.W. fortime not worked. (Pl. Rule 56.1 Counter Statement at ¶ 42.) Plaintiff was then suspended for one day on May 12, 2011. (Id. at ¶ 43.) Defendants contend that plaintiff was suspended for the unauthorized overtime payments, but plaintiff states Mercieca accused him of being "in cahoots" with C.W. (who was also African-American) to "steal time" from the hospital, and suspended him accordingly. (Id. at ¶ 43; Dep. of Jason Smalls (Doc. No. 40-4) ("Pl. Dep.") at 155.) Plaintiff complained to two doctors, Dr. Walderon and Dr. Sixsmith, about this event. (Id. at ¶¶ 96-100; Pl. Dep. at 230-31), though plaintiff testified that he does not recall telling these doctors that he was being discriminated against because of his race. (Pl. Dep. at 231.)

Plaintiff's performance issues continued. On December 7, 2011, he received an email from a paramedic raising serious performance-related concerns about another paramedic, and while plaintiff claims to have notified the Medical Director about the issue, he did not alert either Kwiath or Mercieca, and they did not learn of the issue until more than a month had passed. (Pl. Rule 56.1 Counter Statement at ¶¶ 49-51.) In January 2012, plaintiff did not follow proper procedure regarding an employee's extended absence from work, and as a result, the employee was paid incorrectly. (Id. at ¶ 52.) Plaintiff also failed to follow up with employees who were late. (Mercieca Decl. at Ex. C at NYHQ 118.) On March 29, 2012, plaintiff received an "unsatisfactory" rating on his annual performance evaluation ("March 29 Evaluation"), which cited his "inability to separate his roles as supervisor and friend to the staff," his suspension for overpayment, his failure to address lateness issues, and his failure to follow and enforce NYHQ policy. (Id.; Pl. Rule 56.1 Counter Statement at ¶ 53.) Around this same time, during a meeting between plaintiff and Mercieca, Mercieca told him that they planned to hire a new Operations Manager to work from 8:00 a.m.- 4:00 p.m. and that she did not know what the Hospital would do with plaintiff. (Pl. Rule 56.1 Counter Statement at ¶¶ 96-100; Pl. Dep. at 197.) Plaintiff tookthis as a "taunt" that whomever the Hospital hired to fill this position would replace him. (Pl. Rule 56.1 Counter Statement at ¶¶ 96-100.)

Soon after the March 29 Evaluation, plaintiff sent Mercieca a request for confirmation of his impending vacation plans. (Id. at ¶¶ 87-88.) This request was not answered in a timely fashion, and plaintiff missed his flight to Texas.

In April 2012, plaintiff and Kwiath were responsible for a scheduling error that resulted in significant understaffing. (Pl. Rule 56.1 Counter Statement at ¶¶ 59, 60.) Merceica spoke with both of them about their failure to ensure sufficient coverage and their granting of excess vacation leave requests. (Id. at ¶¶ 59-62.) Kwiath was given a verbal warning, and this error was noted in his 2012 evaluation, but he was not put on a PIP. (Id. at ¶ 63; Mercieca Dep. (Doc. No. 40-5) at 102; Pl. Dep. at 108-09.) Plaintiff alleges that during this meeting, or at another scheduling meeting in April 2012 at which both he and Kwiath were present, Mercieca said, "I don't know what's wrong with you people." (Pl. Dep. at 136-38.)

Plaintiff continued to grant vacation requests above permissible levels, and Merceica placed plaintiff on a PIP on...