DaCosta v North Shore Univ. Hosp. at Forest Hills

[*1] DaCosta v North Shore Univ. Hosp. at Forest Hills 2007 NY Slip Op 51468(U) [16 Misc 3d 1118(A)] Decided on August 3, 2007 Supreme Court, Queens County Dorsa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2007
Supreme Court, Queens County

Nitzia DaCosta, Plaintiff,

against

North Shore University Hospital at Forest Hills, Defendant.



961/05

Joseph P. Dorsa, J.

By notice of motion, defendant seeks an order of the Court, pursuant to CPLR § 3212, granting them summary judgment and dismissing plaintiff's complaint.

Plaintiff files an affirmation in opposition, and defendant files a memorandum of law in further support of the motion for summary judgment. [*2]

In the underlying complaint, plaintiff herein, Nitzia DaCosta, alleges that she was discriminated against by her former employer, defendant, Northshore University Hospital at Forest Hills, in violation of New York Executive Law, Article 15, §§ 296 and 297. Specifically, plaintiff alleges that she was subjected to discrimination based on race and national origin; that she was subjected to different compensation terms, conditions and privileges of employment than other similarly situated individuals; and, that she was subjected to a hostile work environment.

Plaintiff, who is Panamanian/Hispanic by birth, began employment with defendant Northshore, in or about September 2001, as a part-time chart analyst in the Health Information Management (HIM) Department, after having worked there as a consultant for approximately four months.

Plaintiff was hired by Colleen Garvey (Garvey), the director of HIM; Chris Gallego (Gallego) was a supervisor in the same department who worked under Garvey, and who was, according to plaintiff, her direct supervisor.

As a part-time chart analyst, plaintiff was required to work twenty-one hours per week. Ms. Garvey agreed that plaintiff could work somewhat flexible hours, but generally she was expected to work Saturday and Sunday and one evening during the week. Ms. Garvey maintains that although she agreed to flexibility regarding plaintiff's start and end times for work she was required to let her (Garvey) or her supervisor (Gallego) know when she needed to make changes in her schedule.

Plaintiff was provided with a beeper number for Ms. Garvey to reach her during weekend hours.

Following the incident on the weekend of June 14, 2003, plaintiff was suspended and then finally terminated from her employment with defendant hospital.

On that Saturday, June 14, 2003, plaintiff punched in her time card at 9:48 a.m. and was seen on the security tapes exiting the hospital. At 7:15 p.m., that same evening, plaintiff re-entered the hospital and punched out her time card.

Plaintiff admits that she did not work that day. She claims that because there was renovation work going on in the HIM Department, she could not locate the medical records to work on and had no area to work in. She claims she "remained in the vicinity" for nine hours; that she didn't call Ms. Garvey because she felt "humiliated" and because Ms. Garvey never answered her beeper in the past.

With respect to the claim that she was subjected to a hostile work environment, plaintiff proffers her subjective experience that Ms. Garvey "had an attitude" with her; that Ms. Garvey yelled at her; and, that she was afraid of Ms. Garvey and Mr. Gallego. [*3]

Plaintiff claims that Mr. Gallego was very rude to her and that he spoke to her in an intimidating and hostile tone of voice on the phone.

Although plaintiff made these claims about Garvey and Gallego, she never maintained that either of them ever used racial or ethnic slurs or was rude based on race, ethnicity or national origin. Ms. DaCosta claimed she was discriminated against based on her Panamanian/Hispanic heritage, but had no direct knowledge of the ethnicity or national origin of either supervisor or any of the other employees.

In fact, when questioned on the topic, plaintiff admitted that she was not singled out; that Garvey and Gallego spoke loudly to everyone.

The Court notes, initially that the standard for summary judgment motions in New York are the same as those in federal court. Moreover, "[d]iscrimination claims under New York State Law are evaluated using the same analytical framework used in Title VII actions. Farias v. Instructional Sys. Inc., 259 F3d 91, 98 (2d Cir. 2001)." Burniche v. General Elec. Automation Services, Inc., 306 FSupp2d 233, 238 (N.D. New York 2004).

"Summary judgment will be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Accordingly, the Court's task is not to 'weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact 'such that a reasonable jury could return a verdict for the nonmoving party.' Id. at 248-49, 106 S. Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)); accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991)." Schreiber v. Worldco, LLC, 324 FSupp2d 512, 516, 517 (S.D. New York 2004).

"In the absence of direct evidence of discrimination, a plaintiff in an employment discrimination case usually relies on the three-step McDonnell Douglas test. First, a plaintiff must establish a prima facie case of unlawful discrimination by showing that (1) he or she is a member of a protected class (2) who performed his or her job satisfactorily (3) who suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (Title VII); Stratton v. Dep't for the Aging, 132 F.3d 869, 879 (2d Cir. 1997)(ADEA)." Schrieber, supra at 517.

"... [A] plaintiff may satisfy the fourth prong of the prima facie case 'by showing that the employer subjected [her] to disparate treatment, that is, treated [her] less favorably than a similarly situated employee outside [her] protected group.' Graham v. Long Island R.R., 230 F.3d [*4]34, 39 (2d Cir.2000). Where a plaintiff chooses such a course of action, the evidence offered must demonstrate 'that her co-employees were subject to the same performance evaluation and discipline standards,' and that they were not disciplined despite 'engag[ing] in comparable conduct.' Id. at 40 (citations omitted). 'Comparable' is not equivalent to 'identical,' but rather to conduct of 'comparable seriousness,' id. (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817), which the court in Graham interpreted to mean 'a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases.'" Burniche, supra at 240.

"To prevail on a hostile work environment claim, a plaintiff must prove (1) that the workplace is permeated with discriminatory intimidation, ridicule and insult that is 'sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment and (2) that a specific basis exists for imputing the objectionable conduct to the employer.' Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (citing Perry v. Ethan Allen Inc., 115 F.3d 143, 149 (2d Cir.1997)). 'This test has both objective and subjective elements; the misconduct shown must be severe or pervasive enough to create an objectively hostile environment' and the victim must also subjectively perceive that environment to be abusive.'" Id. (citations omitted) Hunter v. St. Francis Hospital, 281 FSupp534, 548 (E.D. New York 2003).

Upon all of the foregoing, it is apparent to this Court, that plaintiff has failed to demonstrate that she has a prima facie case for discrimination against her employer on any of the theories she proposed.

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and, it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.

Dated: Jamaica, New York

August 3, 2007

______________________________

JOSEPH P. DORSA

J.S.C.