Employment Practices Decisions: 1996 - Present, Quadriyyah Ali, Plaintiff v Mount Sinai Hospital, et al, Defendants., U.S. District Court, S.D. New York, 68 EPD ¶44,188, (Jun. 12, 1996)

Gershon, United States Magistrate Judge: Pursuant to the Civil Rights Act of 1964, 42 U.S.C. §§2000-e et seq. (Title VII), plaintiff claims that her employer, Mount Sinai Hospital, and the supervisor of her unit, Dr. Elizabeth Shields, engaged in discriminatory enforcement of the Hospital's dress code and that they retaliated against her for bringing union grievances which claimed racial discrimination. [1] Plaintiff claims that the discrimination was based upon her race and color and describes herself as a black female of African descent.

Defendants seek summary judgment dismissing the complaint on the ground that plaintiff can offer (1) no evidence that the dress code was enforced against her in a racially discriminatory manner and (2) no evidence that various allegedly retaliatory actions taken against her actually occurred or, if they occurred, that they were causally related to her having filed union grievances claiming racial discrimination.

FACTS

As discussed in more detail infra at p.11, for purposes of this summary judgment motion, the facts must be reviewed in the light most favorable to the non-moving party, Ms. Ali. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); De la Cruz v. New York City Human Resources Admin., No. 95-7472, 1996 WL 187435 at *3 (2d Cir. April 12, 1996); Henry v. Daytop Village, Inc., [66 EPD ¶43,672] 42 F.3d 89, 92 (2d Cir. 1994). Therefore, the facts set forth below are either undisputed or plaintiff's version has been accepted as true for purposes of the motion.

According to Ms. Ali, she began her employment at Mount Sinai Hospital on March 16, 1975 as a food service worker and, seeking advancement, obtained a transfer, in 1981, to the position of unit clerk in the Cardiothoracic Surgical Intensive Care Unit (“CSICU”) of the Hospital. Until 1985, Ms. Ali's immediate supervisor in the CSICU was Edith Diasis; then, Eva Mondejar became her immediate supervisor. Ms. Ali's immediate supervisor reported to defendant, Dr. Elizabeth Shields, the Assistant Director of the CSICU. Ms. Diasis and Ms. Mondejar are described by plaintiff as of Asian descent and defendant Shields as of European descent.

Ms. Ali received favorable personnel evaluations while at the CSICU. Pltf. Ex. D; Defts. Ex. E. On her 1986 evaluation, while rated overall as “above average,” and rated favorably in various individual categories, including her relationships to peers and nursing staff, she was found to have “difficulty in accepting directions and counseling from leadership (Clinical Supervisor) on several occasions;” a problem with lateness and attendance was also noted. Defts. Ex. E.

Dress Code

It is undisputed that, at all relevant times, the Hospital had a detailed three-page dress code for all of its nursing department staff, including unit clerks. Pltf. Ex. E. It expressly provided that “[t]he style chosen be conservative and in keeping with the professional image in nursing” and that the “Unit clerks wear the blue smock provided by the Hospital with conservative street clothes.” Id. The wearing of boots, among other items of dress, was expressly prohibited. With regard to hair, the dress code provided that “it should be clean and neatly groomed to prevent interference with patient care” and only “plain” hair barrettes and hairpins should be worn. Id. As plaintiff acknowledges, “The hallmark of said code was that the staff had to dress and groom themselves in a conservative manner.” Pltf. Memorandum of Law at 3.

It is also undisputed that Ms. Ali violated the dress code. In December 1985, Ms. Ali reported to work at the CSICU wearing a red, three-quarter length, cowl-necked dress and red boots made of lycra fabric which went over her knees. Deposition of Quadriyyah Ali. (“Ali Depos.”) at 51-52. Over her dress, Ms. Ali wore the regulation smock provided by the Hospital. She wore her hair in what she says she then called a “punk” style. Id. at 52-55. She now calls it a “fade” style, which she describes as an “Afro hairstyle.” Id. It was shorter on the sides than on the top and was in its natural color, black. Id. According to Dr. Shields, Ms. Ali's hair was not conservative because it “was so high” and “you noticed it right away because it was high and back behind the ears and down. It certainly caused you to look at her. It caused attention.” Deposition of Dr. Elizabeth Shields (“Shields Depos.”) at 48. Her hair “had to be at least three to five inches high down behind her ears.” Id. at 47. This description by Dr. Shields has not been disputed.

According to plaintiff, Dr. Shields approached her and asked her to look in the mirror and see what looks back at her. Ali Depos. at 43-44. Ms. Ali responded that she looked beautiful. Id. Ms. Ali testified that Dr. Shields told her that “I belong in a zoo, and then the last thing she said was I look like I [am] … going to a disco or belong in a disco or something to that effect.” Id. at 44. Dr. Shields testified: “I told her about the whole outfit. She had red boots, red dress, in the unit. This is the post open heart unit. People come out of here after just having cracked their chest. We were expected to be conservative.” Shields Depos. at 48.

It is undisputed that Ms. Ali had worn a variety of hair styles since the beginning of her employment in 1981. So far as appears in the record, this was the first time that she was cautioned about her hair style. Following her conversation with Dr. Shields, Ms. Ali continued to wear boots on occasion. Ali Depos. at 56-61.

At a conference on January 24, 1986, attended by Ms. Ali, Doris Manning, her union delegate, Dr. Shields and Ms. Mondejar, Ms. Ali was advised that her hair and boots violated the dress code. The following written record of this meeting was made:

January 24, 1986 Ms. Quadriyyah Ali was verbally conferenced regarding her hair and wearing red boots to work. She was referred to Nursing Policy #13, Dress Code. The hair and red boots are not perceived as conservative and/or appropriate for the critical care work setting.

Pltf. Ex. F. Dr. Shields testified that a “written conference” was used when “we thought we were not getting through.” Shields Depos. at 53. Although such a conference is not considered discipline, id. at 54, the written record was put in Ms. Ali's personnel file, where it was available to be seen by supervisors in other departments to which she later sought transfer. Shields. Depos. at 55.

On March 18, 1986, plaintiff filed a grievance against defendants alleging that she was the victim of racially discriminatory enforcement of the dress code. Pltf. Ex. G. The grievance was not successful; the verbal conference of January 24, 1986 was found to be “a reminder of compliance with” the dress code and “is not to be considered disciplinary in nature.” Id. There is no reference to any violation of the dress code in any of Ms. Ali's employee performance evaluations.

Plaintiff, while not disputing that she violated the dress code, claims that other, white personnel also violated the code, but it was not enforced against them. The evidence which Ms. Ali offers to support this claim is her own testimony regarding the non-compliance of four Hospital employees. Ms. Ali testified that Ms. Sansky wore her hair in a “punk” style with one side approximately one inch long and the other side down to her neck; that Meredith Rojoff wore red fingernail polish and excessive makeup; that Josephine Sollano wore a gold fingernail and long hair; and that Vicki Goldstein wore long hair that was not in compliance with the dress code. Ali Depos. at 62-67. Ms. Ali testified that all four women were caucasian. Id. at 65. Plaintiff offered no evidence as to whether the dress code was enforced against these individuals. When asked at her deposition, she denied any knowledge as to whether Dr. Shields or Ms. Mondejar had ever advised them that they were in violation of the code. Id. at 66-67.

Dr. Shields testified, without contradiction, that she had had occasion to speak to “some of the nursing personnel in CSICU” regarding their dress or hair. Shields Depos. at 62-65. In particular, she remembered that “we had to write up” Vicki Goldstein because “[s]he had hair that she refused to put back from her face. It was totally unacceptable.” Id. at 62. When spoken to, Ms. Goldstein corrected the problem. Id. at 64-65. Vicki Goldstein's personnel evaluation form dated March 23, 1983, referred to her violation of the dress code in the following language: “Vicki uses uniform that is not the appropriate guideline of the unit.” Ms. Goldstein's personnel evaluation form dated August 1, 1986 contains the following comment: “Grooming has been discussed with Vicki. Hair has been combed neatly so it does not interfere with patient care.” Defts. Ex. P.

Retaliation

In addition to her claim of discriminatory enforcement, plaintiff claims that defendants retaliated against her for filing grievances and that this conduct so affected her that she succumbed to a state of severe depression. The incidents of which she complains are set forth below.

On July 1, 1986, Ms. Ali was accused in writing by Alberta Nwodu, another unit clerk, of bumping her chair with no warning and speaking rudely to her. Pltf. Ex. J. On the same day, another unit clerk, Clarise Hill, who was described by Ms. Ali as black, complained in writing of Ms. Ali's rude treatment of co-workers. Id. In addition, another black unit clerk, Marian McDaniel, and the charge nurse on duty on July 1, 1986, complained in writing about Ms. Ali's failure to cooperate in training Ms. McDaniel, who was a new employee. Id. Ms. Ali's request to the union that the three unit clerks be charged with disloyalty for bringing false statements against a fellow union member was denied. Ali Depos. at 213-215, 162; Pltf. Ex. K.

Ms. Ali relies upon these complaints, the underlying facts of which she disputes, as evidence of retaliation by defendants. She also claims that Dr. Shields' investigation of the incidents was inadequate. According to Dr. Shields, she did not need to investigate the incidents, because of the multiple personnel reporting that the events had occurred. Shield Depos. at 69-70, 75-76. There is no evidence suggesting that Dr. Shields followed any different procedure with regard to these complaints than she would have followed for any other employee against whom there were complaints of that nature. Following the complaints, Ms. Mondejar wrote a memorandum charging Ms. Ali with rudeness, uncooperative behavior and tardiness. Ali Depos. at 111-112, 168; Pltf Ex. L.

Ms. Ali also claims that she was falsely accused of mislabelling blood. It is undisputed that Ms. Ali was not disciplined, once it was learned that she had been off duty on the day the mislabelling occurred. However, she claims that she was humiliated by being criticized in front of the unit and that the woman, Paula Hines, who in fact had been responsible for the mislabelling, did not suffer the same embarrassment. She also complains that she was not advised of classes at the Hospital. Although she learned of the classes and attended them, she believed that other employees had been advised of them, because all employees should have been advised of them. Ali Depos. pp. 107-111, 169.

Ms. Ali also cites as evidence of retaliation that, when she requested the opportunity to work overtime on January 26, 1986, she was informed by Eva Mondejar that Dr. Shields had denied her request. Instead, Clarise Hill, who is black, worked overtime. Ali Depos. at 84-89, 123. On other days, Ms. Ali was offered overtime work, but only two hours' worth, and she refused it. She also testified that other employees were offered more hours; her only basis for this view was that an unidentified nurse told her that other employees were offered longer hours. Id. at 89-90.

Ms. Ali also complains of Dr. Shields' changing Ms. Ali's shift from 1 p.m./9:30 p.m. to 3:00 p.m./11:30 p.m. Id. at 120-121. Ms. Ali filed a grievance with her union regarding that shift change. She lost the grievance when it was determined that the change was warranted because of the change in the time that patients came out of surgery. Id. at 92. Plaintiff testified that, after this incident, Pat Wheeler, the evening charge nurse, told her that she should not challenge Dr. Shields because plaintiff could not win. Id. 90-93.

On July 15, 1986, plaintiff consulted with a psychiatrist, Dr. Francine San Giovanni, who placed her on disability leave. Deposition of Francine San Giovanni (“San Giovanni Depos.”) at 15, 71. Dr. San Giovanni diagnosed Ms. Ali as suffering from an adjustment disorder with depression, anxiety and agoraphobia. Id. at 53. In Dr. San Giovanni's opinion, Ms. Ali was not depressed prior to 1986. Id. at 16-17. According to Dr. San Giovanni, Ms. Ali reacts strongly when she feels she is the subject of injustice, particularly racial injustice. Id. at 75. It is the doctor's opinion that Ms. Ali overreacted to incidents that occurred on the job and attributed to people malicious motivations which were not justified by the events. Id. at 114-16.

Ms. Ali returned to the Hospital in March 1987, but her depression continued, and she tried to transfer out of the CSICU into other positions at Mount Sinai. Although it was common for people to transfer to different positions at the Hospital, as Ms. Ali had done previously, Ms. Ali was unable to obtain a transfer, despite many applications. It is not disputed that all of her many transfer applications were signed, as required. However, Ms. Ali testified that she had to obtain the assistance of a union delegate to get Eva Mondejar to sign some of her transfer application forms. Id. at 125-27. Ms. Ali believes that she was prevented from transferring because of “negative” information provided by the CSICU. Id. at 133, 138. On two of her applications for transfer, Ms. Ali wrote, “… no matter what is said or what you read. Their is [sic] always two sides to a story.” Defts. Ex. Q. Dr. San Giovanni expressed the opinion that Ms. Ali was blocked from transferring, because it was common to transfer in hospitals, but she had no personal knowledge of the facts. Id. at 79-80.

Finally, Ms. Ali testified that, in 1988, Mary Pat Cohill, who had replaced Eva Mondejar, told her that Dr. Shields instructed her to “write [Ms. Ali] up” for the unauthorized pick-up of paychecks and for lateness. Id. at 141-145. Ms. Ali contends that these write-ups were improper. Unable to transfer from the CSICU, and with her mental health deteriorating, Ms. Ali left the Hospital again, in August 1988. She was terminated in 1989.

DISCUSSION

Summary Judgment Standards

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be granted where “there is no genuine issue as to any material fact” and a party is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). It is the movant's burden to demonstrate the absence of any genuine issues of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). A material fact is one whose resolution would “affect the outcome of the suit under governing law,” and a dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The non-movant's “evidence … is to be believed, and all justifiable inferences are to be drawn in [its] favor.” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992) (quoting Anderson, 477 U.S. at 255).

Certain additional observations are pertinent to this discrimination case. “A victim of discrimination is … seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence…. Consequently, in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate. [ Meiri v. Dacon, [36 EPD ¶35,124] 759 F.2d 989, 998 (2d Cir.), cert. denied, [38 EPD ¶35,535] 474 U.S. 829 (1985)].” Rosen v. Thornburgh, [56 EPD ¶40,633] 928 F.2d 528, 533 (2d Cir. 1991) (citations omitted). However, as noted in Meiri, where a grant of summary judgment dismissing a discrimination claim was affirmed, “conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e).” Meiri, 759 F.2d at 998 (citations omitted). “The summary judgment rule would be rendered sterile … if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases than to commercial or other areas of litigation.” Id. More recently, the Court of Appeals for the Second Circuit has reaffirmed the availability of summary judgment in discrimination cases. De la Cruz, 1996 WL 187435 at *6-7; McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); see Meloff v. New York Life Ins. Co., [66 EPD ¶43,522] 51 F.3d 372, 375 (2d Cir. 1995).

Here, reviewing the evidence with the awareness that a discriminatory intent is often hidden and difficult to ascertain, I am nonetheless convinced that plaintiff's evidence is insufficient to create an issue of fact as to the existence of either discrimination or retaliation.

Discriminatory Enforcement of the Dress Code

Title VII makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 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). Defendants seek summary judgment dismissing the complaint on the ground that plaintiff cannot make a prima facie showing that they engaged in discriminatory conduct.

To establish a prima facie case of individualized disparate treatment from an alleged discriminatory enforcement of the dress code, plaintiff must show that she is a member of a protected class and that, at the time of the alleged discriminatory treatment, she was satisfactorily performing the duties of her position. This she has done. However, her prima facie showing must also include a showing that Mount Sinai Hospital had a dress code and that it was applied to her under circumstances giving rise to an inference of discrimination. See Lopez v. Metropolitan Life Ins. Co., [56 EPD ¶40,681] 930 F.2d 157, 160-161 (2d Cir.), cert. denied, [57 EPD ¶41,039] 502 U.S. 800 (1991). That is, “a Title VII plaintiff initially must bear the burden of ‘offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.’ ” Id. at 161 (citing International Brotherhood of Teamsters v. U.S. et al., [14 EPD ¶7579] 431 U.S. 324, 358 (1977)). Although the level of proof required for a prima facie case is low, see e.g. De la Cruz, 1996 WL 187435 at *3, where a plaintiff cannot meet that burden, there is no obligation to proceed further. See Lopez, 930 F.2d at 161-62; Fitzgerald v. Alleghany Corp., 904 F. Supp. 223, 230 (S.D.N.Y 1995); Kazin v. Metro-North Commuter R.R., No. 91-1331, 1994 WL 68167 (S.D.N.Y. March 1, 1994).

Preliminarily, I reject defendants' argument that, because Ms. Ali was not “disciplined” for violating the dress code, they are entitled to summary judgment. That plaintiff was not “disciplined” does not establish as a matter of law that the code was not enforced against her. Plaintiff points to the existence of the written record of conference in her file and its availability to supervisors. Even apart from that, Title VII protects against discriminatory “terms” and “conditions” of employment. 42 U.S.C. §2000e-2(a)(1); see De la Cruz, 1996 WL 187435 at *4. Whether or not plaintiff was fired or otherwise disciplined for a violation of the dress code is not determinative. Title VII protects employees from the imposition of different requirements based upon their race.

However, reviewing all of the evidence submitted on the motion, plaintiff does not raise an issue of fact as to whether the enforcement of the code against her was discriminatory. There is no dispute that plaintiff was in violation of the dress code. Her claim is that the dress code was enforced against her but not against others, who also violated its requirements, but were not black. The problem is the utter lack of evidence supporting this position.

Plaintiff offers no evidence that the dress code was not enforced against other Hospital employees as it was against her. Dr. Shields' testimony that the dress code had been enforced against other nurses, including Vicki Goldstein, was not disputed. Although Ms. Ali identified certain caucasian women whom she believed were in violation of the code, she failed to set forth any evidence to show a lack of enforcement. Ali Depos. at 66-67. Plaintiff, at her deposition, testified as follows:

Q. Now you have described four people that you think violated the dress code. Do you know if Dr. Shields or Ms. Mondejar ever informed any of those four people that they had in fact violated the dress code?

A. No….

Q. Did you ever ask Ms. Sansky, Ms. Rojoff, Ms. Sollano or Ms. Goldstein whether they had been spoken to about the dress code?

A. I believe I asked a few of them, but I can't recall the names.

Q. Do you remember what any of them told you?

A. I said no.

Id. All that plaintiff's testimony establishes is that she was unaware of the enforcement of the dress code against others. Following a full opportunity for discovery, plaintiff has not proffered any additional evidence to support her claim of disparate treatment. On this record, there is no reason to believe that plaintiff will be able to offer at trial evidence from which a jury could reasonably conclude that there was racially discriminatory enforcement of the dress code.

Nonetheless, plaintiff's counsel now relies heavily on the statement which Ms. Ali says Dr. Shields made at the time she spoke to Ms. Ali in December 1985 as showing racial animus. According to Ms. Ali, Dr. Shields said that “I belong in a zoo, and then the last thing she said was I look like I [am] … going to a disco or belong in a disco or something to that effect.” Ali Depos. at 44. Plaintiff's counsel argues that the reference to a zoo is “direct” evidence of racial animus because of the historical experience of persons of African descent being likened to animals.

On the contrary, the record indicates that Ms. Ali did not take this remark to be racially significant. At her deposition, Ms. Ali was repeatedly given an opportunity to identify whether Dr. Shields had ever said or done anything that reflected racial bias; Ms Ali repeatedly denied knowledge of any such statements or conduct. Ali Depos. at 81-83. Although plaintiff expressed her belief that Dr. Shields “had some problem” with black people, id. at 74, when asked to identify any statements by Dr. Shields which she believed revealed racial animus, she did not identify this comment or any others. [2]

The remark may have been harsh, but it would require a chain of inferences, for which there is no support in the record, to conclude that it reflected racial animus. Compare, e.g. Kazin, 1994 WL 68167 at *5 (defendant's comment that a Jewish employee “did not fit the corporate culture” and use of the phrase “Talmudic detail” did not give rise to an inference of discrimination) with Kelly v. Metro-North Commuter R.R., [52 EPD ¶39,592] No. 87-5817, 1989 WL 156298 at *3,*6. (S.D.N.Y. Dec. 18, 1989) (defendant's remark that “the ‘lousy liberal Jews are ruining this company …,’ ” his statement, “[y]ou don't fit in,” and his derogatory comments as to plaintiff's religion established direct evidence of discrimination); Lopez v. S.B. Thomas, Inc., [45 EPD ¶37,613] 831 F.2d 1184, 1189 (2d Cir. 1987) (racial epithets directed towards the plaintiff supported an inference of discrimination). Cf. Ostrowski v. Atlantic Mut. Ins. Cos., [59 EPD ¶41,613] 968 F.2d 171 (2d Cir. 1992) (discussing “direct” evidence of discrimination in context of determining whether a mixed motive instruction should be given to the jury).

It is not enough that Ms. Ali sincerely believes that she was the subject of discrimination; “[(a] plaintiff is not entitled to a trial based on pure speculation, no matter how earnestly held.” Fitzgerald, 904 F. Supp. at 230 & n.13 (finding that plaintiff failed to make a prima facie showing that his discharge was discriminatory). Summary judgment is appropriate here because plaintiff has failed to raise an issue of fact as to whether the dress code was enforced against her under circumstances giving rise to an inference of discrimination. [3] See id. at 230; Kazin, 1994 WL 68167 at *5.

Retaliation

Title VII prohibits an employer from retaliating against an employee for opposing practices which Title VII makes unlawful. To establish a prima facie case of retaliation in violation of 42 U.S.C. §2000e-3(a), “a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.” Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., [58 EPD ¶41,312] 957 F.2d 59, 64 (2d Cir. 1992) (quoting Johnson v. Palma, [56 EPD ¶40,711] 931 F.2d 203, 207 (2d Cir. 1991)); accord Cosgrove v. Sears, Roebuck & Co., [63 EPD ¶42,685] 9 F.3d 1033, 1039 (2d Cir. 1993); Edwards v. Interboro Inst., 840 F. Supp. 222, 228 (E.D.N.Y. 1994). A causal connection can be shown indirectly by showing that “the protected activity was followed by discriminatory treatment … or directly through evidence of retaliatory animus.” Sumner v. U.S. Postal Serv., [53 EPD ¶39,807] 899 F.2d 203, 209 (2d Cir. 1990) (citations omitted); Edwards, 840 F. Supp. at 228.

It is not disputed that plaintiff's filing of grievances alleging racial discrimination in enforcement of the dress code and in changing her shift was protected activity under Title VII and that defendants were aware of this activity. The issue here is whether plaintiff can establish that she was disadvantaged by defendants and that there was a causal connection between the grievances and the adverse action. Where the causal connection between the plaintiff's participation in the protected activity and the adverse action taken by the employer cannot be established, summary judgment is appropriate. See e.g. Hollander v. American Cyanamid Co., [52 EPD ¶39,610] 895 F.2d 80, 86 (2d Cir. 1990); Edwards, 840 F. Supp. at 229. Conclusory assertions do not establish causal connection. Edwards, 840 F. Supp. at 229. For example, in Cronin v. ITT Corp., 737 F. Supp. 224, 232 (S.D.N.Y.), aff'd 916 F.2d 709 (2d Cir. 1990), summary judgment was granted where there was no evidence of a causal nexus between plaintiff's voicing complaints and his purportedly thwarted attempts to seek other employment.

Plaintiff claims that she was the subject of a campaign of harassment at the Hospital following the filing of her grievances. She attributes everything, from complaints against her by black coworkers to the failure of supervisors from various other departments of the Hospital to accept her applications for a transfer, to retaliation on the part of defendants.

To begin with, as to some of the claimed retaliatory conduct, there is no factual basis upon which to conclude that Ms. Ali suffered an adverse employment action. For example, Ms. Ali acknowledges that she was not disadvantaged for mislabelling of blood once it was learned that she was not responsible. Whether Ms. Hines, the responsible person, suffered the same embarrassment that Ms. Ali suffered is not an adverse employment action as to Ms. Ali. Ms. Ali also has established no basis for her belief that other employees received notice of classes that she did not receive, other than her belief that the supervisor “should have” advised all employees about them. Ali Depos. at 109-110. This belief does not constitute evidence giving rise to a triable issue of fact as to whether Ms. Ali was disadvantaged.

Nor does the hearsay evidence which Ms. Ali offers create a triable issue of fact as to retaliation. Hearsay evidence that would be inadmissible at trial may not be considered on a motion for summary judgment. Fed. R. Civ. Pro. 56(e) (“opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence….); see generally, Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 924 (2d Cir. 1985); Kazin, 1994 WL 68167 at *4. Ms. Ali's claim that others were offered more overtime hours was based solely upon what she said an unidentified nurse told her. Ali Depos. at 89-90. Ms. Ali's claim regarding her shift change is equally unsupported. Nothing in the record suggests that the change in shift was retaliatory in nature; on the contrary, the sole evidence is that its purpose was to accommodate a change in the time that patients came out of surgery. Id. at 92. Ms. Ali's testimony as to what Pat Wheeler said Dr. Shields said, id. at 93, is inadmissible hearsay.

Plaintiff has proffered no admissible evidence of discriminatory treatment or retaliatory animus to support a causal connection between the protected activity and the employment actions of which she complains. Accepting plaintiff's description of what occurred as true, the mere fact that the incidents of which she complains occurred after one or both of her grievances were filed does not create an issue of fact as to causality. Ms. Ali cannot avoid summary judgment by “merely pointing to the inference of causality resulting from the sequence in time of the events.” Chojar v. Levitt, 773 F. Supp. 645, 655 (S.D.N.Y. 1991); O'Connor v. Viacom Inc., No. 93-2399, 1996 WL 194299 at *9 (S.D.N.Y. April 17, 1996); Kazin, 1994 WL 68167 at *7. While timing, in conjunction with other circumstances, may provide the basis for an inference of retaliation, here, the circumstances proffered by plaintiff provide no basis for concluding that defendants engaged in retaliation.

For example, plaintiff argues that complaints made against her by co-workers are evidence of retaliation, but she has presented no evidence that these complaints, at least two of which were by black co-workers, were in any way attributable to the Hospital or Dr. Shields. Nor has she raised an issue of fact that Dr. Shields' acceptance of the complaints by multiple employees as true was retaliatory, i.e., that it was causally connected to her having filed grievances alleging racial discrimination.

Ms. Ali's claim that her failure to obtain a transfer to another department in the Hospital was the result of retaliation is similarly deficient. Plaintiff offers only speculation that the reason she was not successful in obtaining a transfer was retaliation on the part of the Hospital. Her reliance on her psychiatrist's testimony that it is common for people who work in hospitals to transfer to different departments is unavailing, for the psychiatrist had no personal knowledge of why Ms. Ali was denied transfer. While plaintiff's personnel evaluations included favorable conclusions regarding her work performance, her personnel file also included the records of her rude and uncooperative conduct with co-workers. In addition, the undisputed evidence of her own psychiatrist is that Ms. Ali suffers from an adjustment disorder, which resulted in her overreacting to perceived slights and attributing malicious motivations to others, without justification.

In sum, plaintiff attributes negative experiences on the job, whether relating to co-workers or supervisors, to retaliation for filing grievances. However, other than the temporal sequence, no evidence of causal connection has been offered. On the undisputed facts, plaintiff's evidence of retaliation is insufficient to raise a triable issue of fact. See Kazin, 1994 WL 68167 at *6.

CONCLUSION

For the reasons set forth in the text, defendants' motion for summary judgment is granted, and the Title VII claims of race discrimination and retaliation are dismissed. For the reasons set forth in footnote one, the Sections 1981 and 1983 claims are also dismissed. The Clerk therefore is directed to enter judgment dismissing the complaint in its entirety.

SO ORDERED.