| Asabor v Archdiocese of N.Y. |
| 2013 NY Slip Op 00275 [102 AD3d 524] |
| January 22, 2013 |
| Appellate Division, First Department |
| Joyce Asabor, Appellant, v Archdiocese of NewYork et al., Respondents. |
—[*1] Kelley Drye & Warren LLP, New York (Jean Y. Park of counsel), forrespondents.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered November21, 2011, which, to the extent appealed from, granted so much of defendants' motion forsummary judgment as sought to dismiss the sixth cause of action (retaliatory discharge)and to dismiss the complaint in its entirety as against the individual defendants, reversed,on the law, without costs, and the motion denied.
On July 6, 2004, plaintiff, Joyce Asabor, a Nigerian-born black woman, was hired towork as a mental health nurse at the Beacon of Hope House (Beacon), a defendant, andinpatient adult mental health facility located in Staten Island. Beacon is an operatingdivision of defendant Catholic Charities Community Services, which, along withdefendant Archdiocese of New York, funds health care services at a number of facilities,including Beacon.
Defendants Joy Jasper, Beacon personnel director, and Dennis Scimone, Beacondirector (sued herein as Simone), interviewed Asabor and conferred with defendant AnneTommaso, Beacon executive director, before determining to hire her. After she washired, plaintiff reported to defendant Ron Morgan, an assistant director of residentialservices at the facility.
At her deposition, plaintiff testified that from the outset of her employment,coworkers openly discussed plans to sabotage her job, especially Sharon Quattrachi, alongtime Beacon employee and Scimone's secretary. Gloria Mascara, Quattracchi's closefriend, often joined in plaintiff's mistreatment. On plaintiff's second day of work,someone hung a decomposing bird on the back of her office door. Plaintiff recountedthat Quattracchi smoked at the entrance to the building every morning, and that sheblocked plaintiff's entrance with a folded elbow. She also stated that Quattracchi failed togive her business related messages, repeatedly called her an "African b[ ]h," stated that"something smells" when plaintiff walked by and directed her to "go back to the jungle."Plaintiff testified that throughout her employment at Beacon, coworkers openly declaredtheir hatred of blacks. Defendants Morgan and Scimone were present on some of theseoccasions.
Within months, plaintiff complained to Scimone and Jasper about the workenvironment. Jasper directed plaintiff to start documenting the racist behavior, which shedid. Plaintiff also noticed that staff members were stealing medication from patients andengaging in other violations of the Health Insurance Portability and Accountability Act(HIPAA). The record [*2]contains a number of citationsissued by the New York State Office of Mental Health confirming that medication countswere inaccurate, that the medicine cabinet was unlocked, and that there were multipleillegible signatures on the medication administration record.
In or about August 2004, Tommaso, Jasper, and Scimone called a meeting withplaintiff at the head office of the Archdiocese, to discuss plaintiff's complaints. Plaintifftestified that she informed all of the participants at the meeting about rampant racialhostility at Beacon. She recounted the insulting language and behavior, as well as Mr.Scimone's dismissive attitude towards her verbal complaints—she testified that hewould "shrug his shoulder[s] and make a face," but did nothing to address commentsmade in his presence. Tommaso asked plaintiff whether she intended to contact anattorney, and plaintiff said yes—"because no one was listening to [her]." Tommasoassured plaintiff that things were going to change.
On September 7, 2004, plaintiff got into a heated argument with Quattracchi.Scimone issued plaintiff a disciplinary notice in which he recounted the incident andstated that plaintiff ignored his directive to lower her voice, and to discuss the matterwith him in his office. The notice states that plaintiff's conduct was both unprofessionaland insubordinate. Quattracchi received no discipline for her part in the argument.
In response, plaintiff wrote a letter to Scimone in which she apologized for any actsdeemed by Scimone to be insubordinate. However, she expressed frustration thatQuattracchi was not disciplined, and that Scimone was not receptive to her view of theincident. In the letter, plaintiff also faulted Scimone for failing to address her concernsregarding HIPAA violations and medicine administration.
In response to plaintiff's letter, Scimone drafted another memo to her. With respect to"racial issues," Scimone promised to "promptly address [plaintiff's complaints] incollaboration with the agency's personnel department and other members of seniormanagement, as necessary." Jasper subsequently came to Beacon and interviewed anumber of staff members, including plaintiff. At the conclusion of the hearing, Jasperreported that Vanessa Harmon, a senior counselor at Beacon, had made racist remarks toplaintiff, and that Allen Bradley, a Beacon supervisor, was aware of Harmon's remarksand failed to take any action to stop the misconduct. Both employees were slated to bedischarged; Bradley resigned in lieu of being terminated. Quattracchi and Mascarareceived no negative reports, though many of plaintiff's complaints concerned theirbehavior.
In reviews dated April 6-7, 2005, the State Office of Mental Health cited Beacon for"not consistently providing staff with cultural sensitivity training." The report noted thatone employee received this type of training in 2003 and that no one was trained in 2004.In mid-May 2005, plaintiff, Quattracchi, Scimone, and Morgan met to discuss thepersonality conflict between Quattracchi and plaintiff. Plaintiff also testified that she hadfrequent conversations with Scimone and Morgan alone regarding Quattracchi'sbehavior. After the mid-May 2005 meeting, plaintiff wrote to Jasper, begging for herhelp and reiterating that the issue of Quattracchi's disdain for her had created anunbearable workplace in which she was not able to carry out her duties as an RN. Noinquiry was conducted as a result of plaintiff's May 2005 letter.
Thereafter, on August 9, 2005, at about 2 p.m., a patient at the facility startedhallucinating and called the police. Mascara called Kimberly Flory, Beacon's seniorprogram supervisor, who advised her to call the patient's therapist. Plaintiff thought thatshe should be involved, because she was a nurse, but Mascara told her to leave the area.Plaintiff got angry, a [*3]fight began and it quicklyescalated. At some point Quattracchi got involved. One or more doors were pushed intovarious individuals, and both plaintiff and Mascara suffered injuries. Flory had advisedMascara that plaintiff should be asked to leave the unit. Morgan eventually calledplaintiff and asked her to leave the premises. Plaintiff followed his directive, butquestioned the fairness of singling her out as the only one asked to leave. Plaintifftestified that she told Morgan that she was contacting counsel to address the racism atBeacon and the manner in which defendants condoned it.
On August 10, 2005, plaintiff, Quattracchi, and Mascara were suspended from work,pending an investigation of the incident. On the same day, plaintiff wrote to Scimone,reiterating her intent to contact an attorney. Plaintiff, Quattracchi, and Mascara were alleventually terminated for engaging in the altercation.
Plaintiff commenced this action, asserting six causes of action: (1) against alldefendants, under the New York State Human Rights Law (State HRL), for race- andnationality-based employment discrimination; (2) against the Archdiocese, CatholicCharities, and Beacon for vicarious liability for the individual defendants' allegedwrongs; (3) against all defendants for intentional infliction of emotional distress; (4)against the Archdiocese for breach of employment contract; (5) against all defendants fornegligent supervision and hiring of Quattracchi and Morgan; and (6) against alldefendants for wrongful termination (based on plaintiff's allegedly disabling shoulderinjury) and retaliation (for plaintiff's statement that she would be seeking legal counsel).
Defendants moved to dismiss the complaint, and the court dismissed plaintiff'ssecond through fifth causes of action. Defendants subsequently moved for summaryjudgment dismissing the remainder of plaintiff's complaint. The court granted defendants'motion to the extent of dismissing the sixth cause of action (retaliation and disabilitydiscrimination) as to all defendants, and dismissing the entire complaint as to theindividual defendants. Plaintiff appeals.
In reviewing defendants' motion for summary judgment, we must accept plaintiff'sfacts as true, and draw all reasonable inferences in the light most favorable to her(Weiss v Garfield, 21 AD2d 156 [3d Dept 1964]). The standard for determiningthe motion is whether there are any genuine and material disputed issues of fact (seeGlick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; see alsoZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgmentshould not be granted where there is any doubt as to the existence of a factual issue orwhere the existence of a factual issue is even arguable (Glick, 22 NY2d at 441).Moreover "[i]t is not the court's function on a motion for summary judgment to assesscredibility" (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997])."Credibility determinations, the weighing of the evidence, and the drawing of legitimateinferences from the facts are jury functions, not those of a judge, whether he [or she] isruling on a motion for summary judgment or for a directed verdict" (Anderson vLiberty Lobby, Inc., 477 US 242, 255 [1986]).Retaliatory Discharge[FN1][*4]
Under the State HRL, it is unlawful to retaliateagainst an employee for opposing discriminatory practices (see Executive Law§ 296 [7]). To prove unlawful retaliation, a plaintiff must show that (1) she hasengaged in protected activity, (2) her employer was aware that she participated in suchactivity, (3) she suffered an adverse employment action, and (4) there is a causalconnection between the protected activity and the adverse action (Forrest v Jewish Guild for theBlind, 3 NY3d 295, 312-313 [2004]). Here, plaintiff has established the firsttwo prongs, and has raised issues of fact regarding the third and fourth prongs sufficientto require the denial of defendants' motion for summary judgment.
Regarding protected activity, plaintiff made numerous complaints that Beacon wasinfested by unlawful discrimination, of which she was a frequent target, and sheindicated both orally, and in writing, her intent to call an attorney if those in supervisorypositions at Beacon did not act to remedy the rampant and blatant racist conduct ofQuattracchi and others that she was required to endure in order to bring home apaycheck. The hostility at Beacon imploded on the afternoon of August 9, 2005, and asplaintiff was suspended for her role in the altercation, she reiterated her intention to call alawyer.
With respect to her employers' awareness of the protected activity, it is plain that allof plaintiff's supervisors knew she was unhappy with the way she was treated. Sheindicated as early as the meeting in the fall of 2004 that she intended to seek an attorneyif the racist behavior did not end. Jasper, one of plaintiff's supervisors, actually suggestedshe keep a log of unlawful acts and statements.
Defendants proffered a legitimate nondiscriminatory basis for terminatingplaintiff—the prohibition against workplace altercations. However, the fight wasthe direct result of 13 months of escalating hostility of which defendants were aware, andwhich the record reflects stemmed from racial animus. It is arguable that by firing allthree participants in the fight—plaintiff, Quattracchi andMascara—defendants were acting in a race neutral manner. An equally plausibleinference, given the nature and degree of unaddressed racial animus at Beacon, is thatdefendants were motivated by a justified fear of liability stemming from an insufficientresponse to plaintiff's complaints (see Glick, 22 NY2d at 441 [drastic remedy ofsummary judgment should not be granted where an issue is "arguable" (internal quotationmarks omitted)]).
As the Court of Appeals has recognized, discrimination is "[usually] accomplished. . . by devious and subtle means" (Ferrante, 90 NY2d at 631[internal quotation marks omitted]). Given that competing inferences are reasonablydrawn from this record, summary judgment is not warranted. It is the province of a juryto weigh the evidence, assess credibility, and ultimately determine whether defendants'actions were retaliatory.Individual Defendants
The record also raises an issue of fact as to whether the individual defendants wereplaintiff's employers for purposes of the State HRL (Executive Law § 296 [1] [a];see Patrowich v Chemical Bank, 63 NY2d 541 [1984]; Pepler v Coyne, 33 AD3d434 [1st Dept 2006]; Lapidus v New York City Ch. of N.Y. State Assn. forRetarded Children, 118 AD2d 122, 131 [1st Dept 1986]). Tommaso, Jasper,Scimone and Morgan all had the authority to make and effectuate high-level managerialdecisions. They did more than carry out personnel decisions made by others(Patrowich, 63 NY2d at 542). Jasper attested that she and Scimone interviewedplaintiff for her position. She also testified that after conferring with Tommaso, she andTommaso made the decision to hire plaintiff. Jasper encouraged plaintiff to keep track ofracial incidents, and advised plaintiff to come to her with any problems. Morgansimilarly advised plaintiff to come [*5]to him so that hecould handle any problems she was having with Quattracchi. After plaintiff wrote toJasper and Scimone, they, and Tommaso, held a meeting at the Archdioceseheadquarters, and promised to stem the hostile work environment at Beacon. Plaintifftestified that she brought problems with Quattracchi to Scimone's attention, but herepeatedly shrugged them off.
Viewing the evidence in the light most favorable to plaintiff, we find that issues offact exist as to whether defendants condoned racially discriminatory conduct, byapproving or acquiescing to the actions of individuals such as Scimone's secretary,Quattracchi, and Gloria Mascara (see Matter of State Div. of Human Rights v St.Elizabeth's Hosp., 66 NY2d 684, 687 [1985]; Goering v NYNEX Info.Resources Co., 209 AD2d 834 [3d Dept 1994] [calculated inaction to employee'sharassing conduct may readily indicate condonation]). However, plaintiff failed toidentify any evidence that any of the individual defendants "actually participate[d]" in thealleged discriminatory acts so as to support her alternative theory of individual liabilityon the grounds of aiding and abetting the alleged acts (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 328 [2004, Smith, J., concurring] [internal quotation marksomitted]; Executive Law § 296 [6]). Concur—Gonzalez, P.J., Renwick andManzanet-Daniels, JJ.
Friedman and Román, JJ., dissent in part in a memorandum by Friedman, J., asfollows: Given our obligation to assume the truth of plaintiff's factual allegations (whichdefendants vigorously dispute) for purposes of deciding this appeal, I concur with themajority insofar as it reinstates the action as against the individual defendants. However,I must emphatically dissent from the majority's reinstatement of the cause of action forretaliatory discharge. Granted, plaintiff has satisfied her "de minimis burden of showinga prima facie case" (Melman vMontefiore Med. Ctr., 98 AD3d 107, 115 [1st Dept 2012] [internal quotationmarks omitted]) that her discharge was retaliatory in nature, in that she threatened to sueher employer as she left the premises on the day she was suspended from heremployment at defendant Beacon of Hope House, and was subsequently terminated.However, as the majority acknowledges, defendants have come forward with a legitimatenondiscriminatory basis for plaintiff's termination—namely, her involvement in aphysically violent workplace altercation with two other employees on the day before shewas suspended. Moreover, any reasonable inference that the true reason for thetermination may have been the threat to sue is conclusively negated by theuncontroverted fact that the two other employees involved in the altercation with plaintiffwere also suspended and terminated based on that incident, even though they did notthreaten to sue. It is undisputed that defendant Scimone, a manager at Beacon, preparedan investigative report on the incident, in which he concluded that plaintiff and the twoother employees involved had violated Beacon's policy against fighting in the workplaceand, based on that misconduct, recommended the termination of all three employees.Pursuant to that recommendation, plaintiff and the two employees with whom she hadfought were terminated within three weeks of the [*6]incident.
Plaintiff does not dispute that the altercation in question occurred; that she wasinvolved in it; that such conduct violated Beacon's policy against fighting in theworkplace; and that all three employees involved in the altercation were suspended thenext day and, ultimately, were terminated, with the reason given being the altercation.Notably, plaintiff offers no evidence that either of the other two terminated employeesthreatened Beacon with legal action before they were fired. In sum, the record offers norational basis for concluding that plaintiff, like her two antagonists, was terminated forany reason other than violating her employer's rule against physical fighting in theworkplace—a rule essential for any workplace, but especially for a mental healthfacility like Beacon.
The majority appears to be unduly influenced by plaintiff's litany of complaints (alldisputed by defendants) about her treatment at Beacon before the altercation thattriggered her termination. Had plaintiff been the only employee fired, perhaps thoseallegations could support an inference that retaliation was the motive for the discharge.But, to reiterate, this was not the case. All three employees involved in the altercationwere found to have violated the no-fighting policy and were dismissed, regardless of anythreats of litigation. While I agree that, by alleging the bare facts that she threatened tosue her employer and was subsequently fired, plaintiff set forth a prima facie case ofretaliation sufficient to shift to defendants the burden of "com[ing] forward withadmissible evidence that it had 'legitimate, independent, and nondiscriminatory reasons' "(Melman, 98 AD3d at 115, quoting Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305[2004]) for her termination, once defendants have proffered admissible evidence thatthey had such a legitimate and independent reason, plaintiff is no longer entitled to relyon "the minimal prima facie case" (Melman, 98 AD3d at 115 [internal quotationmarks omitted]) to defeat a well-supported summary judgment motion (see id. at122-123). She must come forward with admissible evidence that, if credited, wouldrefute the proffered reason for her termination.[FN2]
In this case, the majority reinstates plaintiff's retaliatory discharge claimnotwithstanding unrefuted evidence that she was terminated for violating her employer'sprohibition on conduct clearly intolerable in the workplace (fighting), a policy that theemployer applied equally to the other employees involved in the same incident who didnot threaten to sue (and who were not members of plaintiff's protected class). In sodoing, the majority sends the message that an employee who commits workplacemisconduct may deter the employer from taking disciplinary action by the simpleexpedient of threatening to sue before a penalty is imposed. I do not believe that theHuman Rights Law was intended to afford such protection to employees who engage inmisconduct in the workplace, as the record shows plaintiff did here. It is simplypreposterous to suggest that the Human Rights Law was meant to call an employer totask for dismissing an employee at a mental health facility who involves herself in aphysical altercation at work. [*7]Accordingly, I dissentfrom the portion of the majority's decision denying defendants' motion for summaryjudgment dismissing the cause of action for retaliatory discharge.
Footnote 1: Plaintiff has abandonedher claim of retaliation based on her allegedly disabling shoulder injury, by failing toaddress it in her brief (seeMehmet v Add2Net, Inc., 66 AD3d 437, 438 [1st Dept 2009]).
Footnote 2: As we recently noted,"in employment discrimination jurisprudence, the term 'prima facie case' is used todenote the establishment by plaintiff of facts sufficient to create a legally mandatory,rebuttable presumption, rather than the more traditional meaning of describing plaintiff'sburden of setting forth sufficient evidence to go before the trier of fact"(Melman, 98 AD3d at 122 [internal quotation marks and ellipsis omitted]).