Blake v. Developmental Services
Blake v. Developmental Services
Opinion of the Court
RULING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Nicole. Blake brought this action against her former employer, Defendant State of Connecticut Department of Developmental Services (“DDS”), alleging in Count One that she was subjected to a hostile work environment, suspended, and given a poor evaluation because of her race and color, and in Count Two that she was discharged in retaliation for her having filed discrimination complaints, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991. Defendant now moves [Doc. # 54] for summary judgment. Oral argument was held April 7, 2017. For the following reasons, Defendant’s Motion is granted.
I. Background
Plaintiff began working for DDS beginning in 1997 at the Lower Fairfield Center, one of Defendant’s residential facilities,. first as a cook attendant and then a Mental Retardation Worker 1. (Def.’s Local Rule 56(a) 1 Statement. (“Def.’s LR 56”) [Doc. # 54-2] ¶¶ 3-4; Pl.’s Local Rule 56(a)2 Stmt (“Pl.’s LR 56”) [Doc. # 62].) In 2007 Plaintiff applied for and received the position of Devélopmental Services Worker 2, and began working at DDS’s Hilltop Group Home in Trumbull, CT. (Def.’s LR
After making her schedule selection, Plaintiff wrote to Ms. Alvarez to request -a change of schedule, but Ms.- Alvarez did not make any change. (Def.’s LR 56 ¶ 10; Pl.’s LR 56 ¶ 10.)
The first incident occurred on January 4, 2012 in Unit D and was reported by Mary Sheehan-(Def.’s LR 56 ¶-20; PL’s LR 56 ¶ 20), a Per - Diem Occupational Therapist at' the Ella Grasso Center responsible for developing, implementing, and monitoring client safety protocols for residents. (Def.’s LR 56 ¶ 12; PL’s LR 56 ¶ 12). Ms. Sheehan found a client who was under Plaintiffs care belted to a toilet without supervision from approximately 6:00 A.M. to 7:15 A.M., which Ms. Sheehan believed was a clear violation of client care protocols by Plaintiff and therefore reported the incident to the Office of Protection and Advocacy. (Def.’s LR 56 ¶ 20; PL’s LR 56 ¶ 20.)
The incident was investigated by the DDS Investigations Unit and neglect was substantiated. (Def.’s LR 56 ¶ 22; PL’s LR 56 ¶22.) The pool investigator, Cynthia Stevenson, followed standard practices and procedures in conducting her investigation, including interviewing witnesses, among them Plaintiff, and considered the toileting guidelines and level of support, which, were in place for the client. (Def.’s LR 56 ¶,23; PL’s LR 56 ¶ 23.)
The neglect allegation was found substantiated because Plaintiff did not follow the client’s level of support guidelines— she did not visually see the client until after 7:00 a.m., an hour after her shift started, nor had she properly transferred supervision of the client to another staff member. (Def.’s LR 56 ¶ 26; PL’s LR 56 ¶ 26.)
The second incident of neglect occurred on June 21, 2012 when Plaintiff and another staff member took three clients on a community outing. {Id. ¶ 39.) Plaintiff was responsible for a client who required one-to-one supervision and the other staff member was responsible for two clients who required continuous supervision. (Ex. A to Innamorato Aff. (Investigation Report)).)
After the June 21, 2012 report of eliént neglect, Plaintiff was temporarily prohibited from working overtime in Unit B pending completion of the investigation. (Def.’s
On October 5, 2012 Plaintiff filed her initial CHRO Complaint. (Pl.’s Tr. at 25:18-25 and attached Deposition Exhibit 4). The CHRO made a finding of “No Reasonable Cause” and administratively dismissed Plaintiffs case on December 11, 2014. (Pl.’s Tr. at 209:7-210:9 and attached Deposition Exhibit 32).
In the meantime, the Loudermill hearing for the second incident was conducted November 20, 2012, and Human Resources subsequently sent the matter to DDS Central Office for disciplinary action. (Def.’s LR 56 ¶ 52; Pl.’s LR 56 ¶ 52.) On December 24, 2012, Plaintiff received a ten-day suspension for substantiated neglect (id. ¶ 57), which was standard progressive discipline (Harnick Aff., ¶35 and attached Exhibit J).
Plaintiffs performance appraisal for the period of September 1, 2011 through August 31, 2012, issued September 20, 2012, was an overall rating of unsatisfactory based in part on the five-day suspension she received during that rating period for client neglect.
The third incident of neglect occurred on January 21, 2013. (Def.’s LR 56 ¶ 61; PL’s LR 56 ¶ 61.) Ms. Sheehan observed a client with significant mental and physical needs, for whom Plaintiff was responsible, drinking out of a cup while seated in her wheel chair away from a table (Plaintiff states that the table was next to the client) in violation of the client’s mealtime guidelines and protocols. (Id. ¶¶ 61-62.) She reported Plaintiff to the Office of Protection and Advocacy. (Sheehan Aff., ¶¶ 9-10.) Plaintiff does not believe that Ms. Sheehan reported neglect in retaliation for her CHRO complaint or because of her race or color. (PL’s Tr. at 119:11-120:17.)
Once again, after the January 21, 2013 peport of client neglect Plaintiff was temporarily reassigned to Unit E pending completion of the neglect investigation. (Def.’s LR 56 ¶ 65; PL’s LR 56 ¶65.) Plaintiff claims that at this time Ms. Alvarez told another employee Jose Ayala “to watch her (the Plaintiff),” which was not something done with other employees, but she fails to offer any factual support for this allegation. (See Ex. A (PL’s Aff.) to PL’s Opp’n ¶ 42.)
Human Resources conducted a third Loudermill hearing on April 15, 2013 and sent the matter to DDS Central Office for disciplinary action. (Hamiek Aff., ¶ 43). On May 20, 2013, Plaintiff received a fifteen-day suspension in accordance with progressive discipline. (Harnick Aff., ¶ 44 and attached Exhibit O.) Ms. Alvarez had no decision making authority in determination of client neglect or in the imposition of the discipline (Harnick Aff., ¶ 47, PL’s Tr. at 137:21-138:5).
Plaintiff grieved each of her three suspensions as well as the written warning but raised no claim of discrimination with any of the suspensions. (See Def.’s LR 56 ¶¶ 35, 56, 77, 84.)
In addition to the above discipline, DDS issued Plaintiff a letter of warning on March 20, 2013 because she removed and disclosed confidential client information as part of her CHRO complaint. (Harnick Aff., if 48 and attached Exhibit Q.) DDS has clear policy and work rules regarding the confidentiality of client records and Plaintiff was on notice of those rules (Har-nick Aff., ¶49 and Exhibit R attached thereto), as demonstrated by the written counseling she received in August 2012 for inappropriately obtaining client records for a grievance (PL’s Tr. at 160:15-21). Also, on February 13, 2013 Program Supervisor Michele Crapo issued Plaintiff a memorandum memorializing the directive to Plaintiff to stop writing question marks instead of her- signature on in-service signature sheets.
Plaintiffs service rating for the period of September 1, 2012 through August 31, 2013, dated September 16, 2013, was an overall rating of unsatisfactory based in part on the ten and fifteen day suspensions she received during that rating period for client neglect. (Harnick Aff., ¶ 53 and attached Exhibit V). State Personnel Regulation 5-240-la(c)(5) provides that two consecutive unsatisfactory service ratings is just cause for dismissal. In accordance with the- collective bargaining -agreement, at that point Human Resources must- conduct a Loudermill hearing, after which the matter is transferred to Central Office for review and discipline determination. (Har-nick Aff., II55).'
II. Discussion
Title VÍl prohibits an employer from discriminating “against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), Plaintiff claims discrimination in the form of disparate treatment,•■.hostile work environment, and retaliation.
A. Retaliation
Title VII’s anti-retaliation protections make it unlawful “for an employer to discriminate against any ... employee [ ] ... because [that employee] opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in any manner, in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C, § 2000e-3(a). As interpreted by the Supreme Court, that provision makes acts unlawful when they
“Retaliation claims under Title VII ... are ... analyzed under the McDonnell Douglas burden-shifting test.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). In setting forth the prima facie case, a Plaintiff’s burden is de min-imis, and if the Plaintiff satisfies this initial burden, “a presumption of retaliation arises. The defendant must then articulate a legitimate, non-retaliatory reason for the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 164-65 (2d Cir. 2010). Where the defendant successfully shows a legitimate, non-retaliatory reason, “the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action.” Id. However, the Second Circuit has observed that under the McDonnellr-Douglass framework, the prima facie showing for retaliation “tend[s] to collapse as a practical matter” into analysis of the later requirement that the Plaintiff show the legitimate reason to be mere pretext. Collins v. N.Y. City Transit Auth., 305 F.3d 113, 119 n.1 (2d Cir. 2002); see also Wilson v. Emhart Teknologies LLC, 566 F.Supp.2d 120, 125 n.5 (D. Conn. 2008) (observing that a jury cannot infer discrimination from thin air and that even where a plaintiff “nominally” meets each of the prima facie requirements, this showing must also be enough to support inference of retaliation.)
To establish a prima facie case of retaliation, a plaintiff must show “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4)a causal connection between the protected activity and the adverse employment action.” Hicks, 593 F.3d at 164.
Although Defendant disputes that certain of the actions were materially adverse, it does not dispute that Plaintiff can establish the first three prongs of her prima facie' case. Instead, DDS focuses bn its argument that “[t]he evidence simply does not show [Plaintiffs October 5, 2012] GHRO complaint was the reason that she was disciplined for client neglect, issued a written warning and a memorandum, transferred to another floor during a neglect investigation, rated as unsatisfactory and ultimately terminated in accordance with the State Personnel Regulations.”
i. Disputed Adverse Employment Actions
The Second Circuit has recognized a broader scope of “adverse employment action” than for substantive discrimination claims in the context of retaliation, noting that the central focus of analysis is “whether the employer’s actions were harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Hicks, 593 F.3d at 169 (interior citations
Still, Defendant maintains that the temporary floor transfers pending completion of the investigations and the memorandum issued on February .13, 2013 by her Program Supervisor, Michele Crapo, regarding question marks on her in-service sign in sheets, cannot be seen as adverse employment actions for purposes of Plaintiffs retaliation claim. (Def.’s Mot. for Summary Judgment at 20.) The Court agrees.
Plaintiffs temporary unit reassignments during the investigation of the third incident is not an adverse action even for purposes of a retaliation claim requiring “a plaintiff [to] show that a reasonable employee would have found the challenged action ... well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotation marks and citations omitted). “[A] lateral job transfer that does not affect an employee’s salary or title may be the basis for a Title VII retaliation claim only if the reassignment would have been viewed by a reasonable employee as being materially adverse.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 555 (2d Cir. 2010). A temporary transfer made pursuant to a standard procedure with no change in the Plaintiffs shifts, duties, title or pay cannot bé an adverse action even for purposes of a retaliation claim.
With respect to the Crapo memorandum, Defendant argues that because there were no resulting consequences it cannot be considered an adverse action. Several district courts in this circuit have found that “reprimands [and] threats of disciplinary action ... do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.” Uddin v. City of New York, 427 F.Supp.2d 414, 429-30 (S.D.N.Y. 2006) (quoting Honey v. County of Rockland, 200 F.Supp.2d 311, 320 (S.D.N.Y. 2002)); see also Weeks v. N.Y. State, 273 F.3d 76, 86 (2d Cir. 2001) abrogated on other grounds by Nat’l R.R. Passenger Corp., v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“It hardly needs saying that a criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action”).
The Crapo memorandum was sent as “notification that [Plaintiff had] been directed to cease adding symbols and/or commentary to in-Service Signature Sheets effective immediately.” (Ex. U [Doc. # 54-5] to Hamick Aff. (attached as Ex. 2 to'Def.’s Mot. for Summary Judgment).) There is no evidence connecting it to Plaintiffs termination in any way nor is there any evidence of'any negative results. The Crapo memorandum was not even mentioned in the second unsatisfactory evaluation, which references the two suspensions received during the rating period and the March 2013 written warning. {See Ex, V to id.). Accordingly, even taken in consideration with the other alleged incidents, the Crapo memorandum was not an adverse employment action.
ii. Causation
The Supreme Court has clarified that the protected activity must be a “but
A plaintiff can prove a causal connection between protected activity and adverse employment action “either: (1) indirectly, by showing that the protected activity was followed closely by retaliatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Hicks, 593 F.3d at 170.
Here, Plaintiffs protected activity was the filing of her initial CHRO complaint on October 5, 2012 and therefore only actions taken after that date are considered. Thus, the five-day suspension for the January 2012 incident issued before Plaintiff filed her CHRO complaint has no relevance to the retaliation claim. As to the second incident from June 2012, it had already been reported, investigated, and found substantiated prior to her filing the October 2012 CHRO complaint.
Plaintiff contends that the close proximity (about a month after she filed her Complaint) of the Loudermill hearing relating to the June 2012 incident (where Defendant imposed a ten-day suspension) to her protected activity is sufficient evidence for a jury to find causation. (Pl.’s Opp’n at 25 (citing Summa v. Hofstra Univ., 708 F.3d 115, 127 (2d Cir. 2013) (“[Pjresentation of a temporal connection” can be “enough, in and of itself ... to permit a reasonable jury to find causation.”))). But where progressive discipline already was in progress prior to any protected activity, temporal proximity alone cannot serve even as the minimal proof necessary to show prima facie causation. See Porter v. Potter, 366 Fed.Appx. 195, 197 (2d Cir. 2010) (“Adverse employment actions that are part of an extensive period of progressive discipline that begins prior to any protected activity on the Plaintiffs part cannot give rise to an inference of retaliation sufficient to make out a prima facie case.”); see also McLee v. Chrysler Corp., 109 F.3d 130, 135-36 (2d Cir. 1997) (no causation inference possible where employee engaged in protected activity after aware of impending discipline). Although the Loudermill hearing and disciplinary process was completed on December 24, 2012 with the issuance of the ten-day suspension, there is no evidence rebutting Defendant’s evidence that this was administration of progressive discipline following Plaintiffs five-day suspension and first unsatisfactory service rating. (See Harnick Aft ¶ 35.)
Plaintiff argues that the ten-day suspension, despite being incrementally related to incidents which occurred before' she filed her complaint, is evidence of retaliation because at that Loudermill hearing a DDS Human Resources employee approached Plaintiffs union representative and tried to “strike a deal” consisting of suspending Plaintiffs ten-day suspension and dropping her previous five-day suspension down to two days in exchange for Plaintiff dropping her CHRO complaint. (Pl.’s Depo. at 92:24-95:16.) Plaintiff has not shown how this evidence would be admissible under
Thus, the only potential adverse actions on which. Plaintiffs retaliation claim could be based are: the January 2013 report of the third incident of neglect and related investigation and discipline; the March 20, 2013 written warning for removing and disclosing confidential client information as part of her CHRO complaint; the second unsatisfactory performance evaluation; and her eventual termination issued October 31, 2013. The Court will address whether Plaintiff has presented • sufficient evidence to infer a causal connection between her filing of the CHRO Complaint and these adverse employment actions.
Ms. Sheehan, who reported the third neglect incident in January 2013 did not do so for' retaliatory purposes by Plaintiffs own account (PL’s Depo. at 119:11—12—;17) and was unaware of the CHRO complaint at the time she reported the incident as a mandated reporter. (Sheehan Afif., ¶ 11). Thus, the record is undisputed that the reporting of the incident itself was in no way retaliatory.
Although Plaintiff stated her belief that it was “possible” the investigator for the third incident, Jane Laudati, retaliated against her for filing her CHRO Complaint (PL’s Tr. at 125:2-127:22), she.offers no evidence to rebut Ms. Laudati’s averment that she was not aware of the CHRO Complaint at, the time she conducted the investigation (Ex. 7 (Laudatti Aff.) to Def.’s Mot for Summary Judgment ¶ 10).
Finally Plaintiff suggests that because the associated Loudermill hearing took place April 5, 2013, approximately four days after Plaintiff filed an amendment to her CHRO Complaint, Defendant’s disciplinary decision at that hearing was retaliation for protected activity. (PL’s Opp’n at 27-28.) Plaintiff points to no evidence that Defendant was aware that she had amended her Complaint at that time. Moreover, as with the discipline for the second incident, neglect had already' been substantiated prior to Plaintiff amending her Complaint and Plaintiff presents no evidence rebutting Defendant’s evidence that the suspension was standard practice in accordance with progressive discipline. (See Harnick Aff. ¶ 44 and attached Exhibit O.)
With regard to the March 2013 written warning for disclosing confidential information, Plaintiff has not offered any evidence that it had any relationship'to her in protected activity. The undisputed record shows Defendant has clear policy and work rules regarding the confidentiality of client records, of which Plaintiff was on notice,.. (Nee Exs. Q, R and S to Harnick Aff.; Pl.’s Depo. at 160:15-21.) Ms. Har-nick, who issued the warning, was never claimed by Plaintiff to have.had any retaliatory motive and no rational jury could find that Plaintiffs protected activity was a but-for cause of the written warning.
Finally, much like the other adverse actions, Plaintiff offers no evidence from which it can be inferred that either the second unsatisfactory evaluation or Plaintiffs eventual termination were linked to her filing her CHRO Complaint. Rather, there exists a record of three incidents of neglect which were substantiated by three different independent investigators and after each of which progressive discipline was imposed, all in accordance with Defendant’s standard procedures. Specifically, Plaintiffs unsatisfactory service rating was based “in part” on the ten and fifteen-day suspensions she received for client ne-
Ultimately, Plaintiff fails to identify any similarly situated employees who were treated differently than she, or any other direct or circumstantial evidence that any of the adverse employment actions occurred as a result of Plaintiff filing her CHRO Complaint. Accordingly, her Retaliation claim cannot survive summary judgment and must be dismissed.
B. Hostile Work Environment
An employee may suffer discriminatory treatment in violation of Title VII if he or she is required to work in a hostile or abusive environment. See e.g., Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) To prevail on this theory, a plaintiff must prove (a) that [s]he subjectively perceived the environment to be abusive; (b) that [her] working environment was “objectively hostile” and (c) that a specific basis exists for imputing the harassing conduct to the employer. Howley v. Town of Stratford, 217 F.3d 141, 153-54 (2d Cir. 2000).
An objectively hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citation and • internal quotation marks omitted). Whether an environmént is “hostile” or “abusive” -depends on the totality of circumstances. Id. at 23, 114 S.Ct. 367. Conduct that is “merely- offensive,” and “not severe or pervasive enough to create an objectively hostile or abusive work environment [meaning] an environment that a reasonable person would find hostile or abusive [ ] is beyond Title VII’s purview.” Id. Relevant considerations for assessing a hostile work environment claim include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367 (cited in Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 119 (2d Cir. 2010)). “[I]t is axiomatic that to establish a race-based hostile work environment under Title VII, the plaintiff must demonstrate that the conduct occurred because of her race.” Mattison v. Potter, 515 F.Supp.2d 356, 372-73 (W.D.N.Y. 2007) (citing Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
“Facially neutral incidents may be included in .the totality of -the circumstances that courts consider: in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on”- the protected characteristic at issue. See Alfano v. Costello, 294 F.3d. 365, 378 (2d Cir. 2002) (internal quotation-marks omitted). “Incidents that are facially sex-neutral may sometimes be used to establish a course of sex based discrimination-for example,
Plaintiff claims as evidence of her hostile work environment the same incidents which formed the basis for her retaliation claim (including all three incidents of neglect), in addition to allegations of excessive monitoring based on Ms. Alvarez’s alleged direction to another employee to have his staff watch her.
Plaintiffs hostile work environment claim fails on two fronts: she has not presented evidence that Defendant’s actions were taken because of her' race and/or color, nor has she shown these alleged incidents to'be sufficiently severe or pervasive to rise to the level of creating a hostile work environment.
i. There is no Evidence the Incidents Occurred Because of Plaintiff’s Race and/or Color
Plaintiff- testified that when she was transferred pending the neglect investigation Ms. Alvarez told her supervisor in that Unit, Jose' Ayala, to have his staff watch her (PL’s Depo. at 106:12-107:25), which she maintains subjected her to excessive monitoring by her supervisors.
In addition, Plaintiff argues that the three incidents of neglect support her claim of hostile work environment because they are evidence of disparate treatment. However, Plaintiff once again offers no evidence to support her- conclusion that any of the incidents occurred because of her protected status. Defendant followed the same procedure with respect to each of the three incidents of neglect, including conducting an investigation after the incident was reported and holding a Louder-mill hearing to determine the appropriate discipline. There were two different individuals who reported the incidents, Ms. Sheehan (reported first and third) and Mr. Dyer (reported second), and three different individuals who performed the subsequent investigations, Cynthia Stevenson, Joe Innamorato, and Jane Laudati. Counsel for Plaintiff affirmed at oral argument that Plaintiff was not alleging discriminatory animus on the part of any of these individuals.
Similarly Plaintiffs unsatisfactory evaluation issued September 20, 2012 (Ex. C to Pl.’s Opp’n), the written warning issued to her for removing confidential information about a client, and the memorandum from Michele Crapo regarding signing the in-service sheets cannot constitute evidence of a hostile work environment absent .any evidence that these incidents were related to her race and/or color to rebut the evidence that they were in response to Plaintiffs misconduct. In fact, Plaintiff identifies only one employee, Ms. Alvarez, who she claims had any discriminatory animus towards her, but offers no evidence supporting this contention aside from her own speculation and offers no evidence that Ms. Alvarez (or any other of Defendant’s employees) ever made any racially discriminatory comment towards or about Plaintiff.
Because all of these incidents are facially neutral and Plaintiff fails to point to any overt discrimination, she has shown no genuine issue of material fact requiring trial on her hostile work environment claim.
ii. The Incidents Were not Sufficiently Severe or Pervasive
Further, Plaintiffs proffered evidence falls short of the requisite severity or pervasiveness needed to support a hostile work environment claim, see Smith v. New Venture Gear, Inc., 319 Fed.Appx. 52, 56 (2d Cir. 2009), namely that the work place was “permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe ’or pervasive to alter the conditions of [her] employment.” Harris, 510 U.S. at 21, 114 S.Ct. 367.
Such circumstances requiring trial were found in Howley v. Town of Stratford, in which the plaintiff woman firefighter was subjected to a sexually explicit and de
By contrast, Plaintiff here has presented no evidence that these incidents taken together could be found to be of such severity and character as to subvert her ability to function in the workplace. There is no allegation that any of Plaintiffs supervisors ever directly referenced her race and/or color nor any evidence of disparaging statements or other inappropriate conduct directed towards Plaintiff because of her race and/or color. Thus, Plaintiff has not proffered evidence of a hostile work environment. Accordingly, for this reason as well, Plaintiffs hostile-work .environment claim must be dismissed.
III. Conclusion
For the foregoing reasons Defendant’s Motion for Summary Judgment is GRANTED. The Clerk is requested to close this case.
IT IS SO ORDERED.
.Plaintiff testified that she could not remember anyone, else who requested a schedule change and that she did not specifically remember ’any Hispanic employee who was ■ granted a schedule change. (Ex. 1 (Blake’s Depo, ("Pl.’s Tr.”)) to Def.’s Mot. -for Summary- Judgment at 51:25-52:16; 56:8-20.) Her affidavit claiming Ms. Alvarez gave the schedule she had requested to an employee of Hispanic descent with less seniority than her is not sufficient to create a dispute of fact because it directly contradicts her deposition testimony (above). See Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) ("[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony,”) (cited with approval'in Mott v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014)).
. Plaintiff provided direct care to the clients and was required to follow, the established protocols to ensure client safety, (Def’s LR 56 ¶ 13; Pl.’s LR 56 ¶ 13.)
. The client’s toileting guidelines required the supervision of one staff during the entire toileting routine, with five-minute checks on the toilet, with the client seated on an elevated toilet seat and not seat belted. Further, she required 15-minute checks while awake. (Id. ¶ 24.) Plaintiff had been in-serviced, which is a training regarding client protocols (Dyer Aff., ¶ 7), on the client’s' Toileting Guidelines and Level of Supervision. (Id. ¶ 23.)
. Plaintiff admits this allegation in part and then notes that " [although the investigation determined neglect on the part of the Plaintiff it did not substantiate that, the Plaintiff was responsible for placing the client on the toilet.
.Defendant asserts that the suspension is standard practice for substantiated cases of client neglect, (Def.’s LR 56 ¶ 34.) Plaintiff claims that this was not standard practice, arguing that the employee who was responsible for that client prior to Plaintiff starting her shift and who put the client on the toilet was not disciplined. (PL’s LR 56 ¶ 34.) Plaintiff presents no evidence of the race of the other employee, or that other employee was also identified and found responsible for ne-gleet such that a suspension would have been warranted.
. At the Ella Grasso Center it is standard practicé to trartsfer a staff member under . investigation for client neglect to another unit, The staff member retains the same position and job duties in the other unit. The units are all similar as every unit is a residential unit. (1⅛¶ 16.)
. Although Plaintiff purports to deny this statement in part, her explanation does not in fact deny that she was required to provide continuous supervision of the client she left in • the van. (Pl.’s LR ¶ 39.)
. Plaintiff first spoke with Ms. Alvarez, who told Plaintiff she needed to -address the issue with Mr. Dyer. (See Ex. I (June 2012 Incident Investigation’ Report) [Doc.: # 54-5] to Har-nick Aff. (attached as Ex. 2 to Def.’s Mot. for Summary Judgment).)
. Plaintiff's Affidavit asserts that Ms. Alvarez changed the Judgment score to "unsatisfactory” and the quality of work from "good” to "fair.” (Ex. A to Pl.’s Opp’n (Pl.’s Aff.) ¶ 27.) She cites no evidence in the record showing ■her basis for this statement, nor does she indicate whether this is standard practice when an individual has been suspended during the appraisal period. (Pl.’s LR 56 ¶ 59.)
. Plaintiff avers that Ms. Alvarez was a participant at Loudermill hearing and was copied on discipline reports. (Pl.’s LR 56 ¶ 79.) However, Ms. Alvarez was not the author of the discipline reports and there is no evidence she was involved in their creation. Plaintiff offers no evidence which would suggest Ms. Alvarez was cc’d for any reason other than that she was the Program Manager,
. The signature on the in-service indicates that the staff member has reviewed the information and understands her role and responsibility. (Def.’s LR 56 ¶ 85.)
. Plaintiff received satisfactory performance ratings in 2005, 2003, 2002, 1999, .1998 (Har-niclc Aff., ¶ 60 and attached Exhibit Z); fair performance ratings in 2000, 1999 (Harnick Aff,, ¶ 61 and attached Exhibit AA); and an unsatisfactory performance rating in 2001 (Harnick Afff., ¶ 62 and attached Exhibit BB). She received a letter of reprimand on May 8, 2001, a twenty day suspension on May 7, 2001, a letter of warning on September 24, 2001, a letter of warning on March 27, 2001 and a notification that her working test period was being extended on July 30, 1999. (Har-nick Aff,, ¶ 63 and attached Exhibit CC).
. Summary judgment is appropriate where, "resolv[ing] all ambiguities and drawing] all permissible factual inferences in favor of the party against whom summary judgment is sought,” Holcomb v. Iona Coll, 521 F.3d 130, 137 (2d Cir. 2008), “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a). "A ■ 'dispute regarding a material fact is genuine-if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”' Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and *[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.’” Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202.(1986)). When considering a motion, for summary judgment, the Court may consider depositions, documents, affidavits, interrogatory answers, and other exhibits in the record. Fed. R. Civ. P. 56(c).
.Plaintiff’s Opposition does not substantively address Defendant’s Motion for Summary Judgment with respect to her disparate treatment claim, despite including the heading "Sufficient Questions of Material Fact Exist as to Whether the Plaintiff was Discriminated Against and as to Whether the Defendant Created a Hostile Work Environment.” (Pl.’s Opp’n at 7 (emphasis added).) At oral argument, counsel for Plaintiff acknowledged that - the analysis for a disparate treatment claim differs from that of hostile work environment, but never offered any analysis of what evidence supports Plaintiff’s prima facie case of discrimination. At most, Plaintiff alleges that with regard to the first incident, the employee who 'actually placed the patient on the toilet was not disciplined despite not doing a proper transfer, and that with respect to the third incident regarding the client drinking while not seating at a table, that the supervisor, who was Caucasian, was not disciplined. In both instances, Plaintiff fails to name the individuals or explain how they were similarly situated to her. Thus, Plaintiff has not offered sufficient evidence of disparate treatment' for a reasonable jury to find in her favor and this claim must be dismissed.
. While this statement implies Defendant agrees these are all adverse employment actions, it later disputes that certain of them actually qualify as such. Plaintiff, fqr her part, does not argue in her Motion, despite some contentions in the record, that the .transfers, warning or memorandum were adverse employment actions.
. The service rating also notes the written warning for removing confidential materials and that Plaintiff "must be more cooperative when working within the Team setting,' comply with the consumer procedures/guidelines and DDS Work Rules as written and improve her dependability.” (Ex., V to Harnick Aff.)
. Just as with, her retaliation claim, Plaintiff offers no argument or evidence of how the March 20 letter of warning for releasing confidential client information or the memorandum from Michelle Crapo regarding signing in-service sheets with, question marks were in any way related to Plaintiff’s race, even when viewed in' conjunction with Plaintiff's other allegations'.
. There is no evidence that any of the transfers were in any way due to Plaintiff's race and/or color but rather that it was standard practice at the Ella Grasso Center to transfer a staff member under investigation for client neglect to another unit. (Def.’s LR 56 ¶ 16.) Plaintiff could not provide any examples of non-black employees who were not transferred during an investigation. (PL’s Depo. at 78:5-79:13.) ■
.It is Plaintiff's burden to put forth evidence creating a material dispute of fact. Plaintiff offers no sworn statement of Mr. Ayala nor presents any other evidence that Ms. Alvarez directed him to watch Plaintiff. This is insufficient to create a dispute of fact requiring trial.
. Plaintiff testified at her deposition that she "just think[s]” her race played a role in Stevenson’s investigation, once again without providing any additional factual support for this allegation. (PL's Depo. át 71:21-25.)
Reference
- Full Case Name
- Nicole BLAKE v. DEVELOPMENTAL SERVICES
- Cited By
- 2 cases
- Status
- Published