Vaziri v. Levindale Hospital

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Akram Vaziri, the self-represented plaintiff, filed an employment discrimination action against her former employer, “Levindale Hospital/Life Bridge Health.” ECF 1 (Complaint).^[1] Plaintiff alleges discrimination on the basis of her national origin (Iran); religion (Muslim); age (58 years); and disability (diabetes and her daughter's “generalized anxiety disorder”). Id. In particular, plaintiff claims that she was denied training, denied a preferable shift at Levindale, and ultimately terminated as a result of discrimination and in retaliation for filing a discrimination complaint. Id.

         Suit was filed on June 6, 2017, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e-2000e-17; the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§ 621-634; and the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. §§ 12112-12117. ECF 1 at 5. Defendants moved to dismiss most of plaintiff's claims, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). ECF 5. By Memorandum (ECF 18) and Order of March 8, 2018 (ECF 19), I dismissed LifeBridge as a defendant and dismissed plaintiff's claims for religious discrimination, national origin discrimination, age discrimination, and disability discrimination, all without prejudice. However, I denied defendants' motion as to plaintiff's retaliation claim. I also granted plaintiff leave to file an Amended Complaint.

         Plaintiff filed an Amended Complaint against Levindale and LifeBridge (ECF 20 at 1-8), with numerous exhibits (ECF 20 at 9-26; ECF 20-1).^[2] The Amended Complaint largely duplicates the claims that were asserted in the initial Complaint. See ECF 20 at 1-8.

         Thereafter, pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 56, defendants filed a “Motion to Dismiss, or, Alternatively, Motion for Summary Judgment” (ECF 24), supported by a memorandum of law (ECF 24-1) (collectively, the “Motion”) and several exhibits. ECF 24-3 -ECF 24-10. They contend that the Court lacks subject matter jurisdiction in regard to Vaziri's religion and disability discrimination claims. ECF 24-1 at 19-20. And, they maintain that the Amended Complaint fails to state claims for discrimination based on national origin and age. Id. at 21-24. Defendants also assert that plaintiff's retaliation claim fails as a matter of law. Id. at 25-28.

         Vaziri opposes the Motion (ECF 28, the “Opposition”), supported by twenty-four exhibits. ECF 28-2 - ECF 28-25. In her Opposition, she “remove[d]” her claims of discrimination with respect to “disability, national origin and religion.” See ECF 28 at 1. But, she seeks to pursue her claims based on retaliation and age discrimination. Id. Defendants have filed a reply (ECF 36), with numerous exhibits. ECF 36-2 - ECF 36-19.

         Vaziri has also moved for leave to file a surreply. ECF 37 (“Motion for Surreply”). Defendants did not respond, and the time to do so has passed. See Local Rule 105.2(a).

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, the Motion for Surreply (ECF 37) shall be denied, and the Motion (ECF 24) shall be granted in part and denied in part.

         I. Factual Background

         Vaziri asserts that she is now 58 years old, and has “almost 39 years of experience as a registered Nurse”, in areas such as “Medical surgical, Intensive Care Unit, Emergency Room, IV Therapy, Hemodialysis, Pediatric, Inservice Educator, College Instructor, manager and Nursing Supervisor.” ECF 1 at 4, 5. On March 21, 2011, she began her employment with LifeBridge, as a Nursing Supervisor at the Levindale Hospital (“Levindale”) location. ECF 20, ¶ 1.^[3] According to Vaziri, during her tenure at Levindale she “was employed and paid by [L]ifeBridge [H]ealth . . . .” Id; see also id. at 8. She asserts: “Every aspect of [Levindale] was controlled by [LifeBridge].” Id. at 7-8.

         Over the course of Vaziri's employment, “on numerous occasions [she] reported wrongdoing of some of the employees” to her supervisor, Virginia Saunders. Id. ¶ 2. Those employees include Rita Chikeka, a day-shift supervisor; Maria Cohen, a night-shift supervisor; and Tulasy Surrendran, a night-shift supervisor. Id. ¶¶ 2-3.

         Plaintiff claims that Saunders “provoked” the other employees against Vaziri, as they “became nasty, and disrespectful, and non-cooperative with [Vaziri].” Id. ¶ 3. For example, the employees would talk in their native languages “about [her] and make[] fun of [her] daughter's sickness.” Id. ¶ 4. Vaziri says that she “felt isolated and lonely because of their behaviors.” Id.

         Vaziri reported “the issue” with Saunders to Candace Hamner, Vice President and Chief Nursing Officer of Levindale, as well as to John Robison, the Administrator of Levindale. Id. ¶ 5. In an email to Hammer of June 30, 2014 (ECF 28-4), Vaziri stated, in relevant part, id. at 2:

. . . Staff do not listen to me because I report to [Saunders] that is the way of her reaction toward me. she put me down in front of others trough [sic] the E mail. How she is expecting staff to follow me when there is no support from her. I do not know what I did wrong that she thinks I deserve to be treated like this? I am a RN with 35 years of experience in different units and different specialty [sic]. whatever I apply for any position, she do[es] not offer me the position but they offer it [to] Rita or [an]other person that their qualification and experience is less than me.

         Vaziri also asserts that her twelve-year-old daughter suffers from “generalized anxiety disorder, ” and that she requested a day shift position so that she could be home with her daughter at night. ECF 20 at 2. Vaziri complains that Saunders denied this request and “preferred to choose younger, less experience[d] employees.” Id. Those employees included Irene Burk, “an interim unit manager” who “later became [a] permanent unit manager” but initially had no “Manager or Supervisory experience”; Maria Cohen, a “Unit Manager”; Vashtie Archer, a “newly graduated” nurse with no nursing or supervisory experience, who “was hired for [a] day shift supervisory position”; and Crystal Henry, “who was young and [had] no supervisory experience” but “was hired for [a] day shift supervisor position.” Id. at 2-3.

         According to Vaziri, a “day shift Nursing Supervisor” requires “less qualifications compared to [the] night shift.” Id. at 4. As a result, she “did not understand which qualification [she] was lacking, compared to those young[er] employees who were chosen for day shift positions.” Id. During her tenure at Levindale, Vaziri claims that “there was no any [sic] evidence or incident report against [her].” Id. She avers: “Nothing wrong happened to any residents or patients during my duty.” Id. at 3.

         On an unspecified date in 2015, Vaziri switched shifts with Ebinizer Akintola, a day shift supervisor. Id. at 4. During a morning meeting that day, Vaziri alleges that Saunders and Michelle Preston, the Director of Nursing at Levindale, “were very mean to [her] and did not look in [her] eyes even one time, did not talk or communicate” with her, but “were very nice to other people and staff.” Id. “Their behavior made [her] very sad, ” and she “went to the supervisor's office and . . . cried.” Id.

         Vaziri then “reported this behavior” to Human Resources Director Gina Dembeck. Id. In an email to Dembeck on July 29, 2015, Vaziri wrote, ECF 28-17:

As I talked to you I feel that I have been discriminated, As you know I have family health problem that puts my daughter in a dangerous position. I have been talking to you, Michelle, Gloria, and [G]inger^[4] for a long time and I was applying constantly for different day positions. which [sic] none was offered to me

In an email of September 4, 2015 (ECF 28-6) to Idriz Limaj, the Chief Operating Officer of LifeBridge, Vaziri wrote, in pertinent part:

I have been talking, sending E-mail to my Managers (Ginger Saunders and Michelle Preston) and Human resources over and over and applying for day shift positions all over the place.

After 37 years working as a RN in too many different specialty units, as Nursing supervisor in [L]evindale almost 5 years, and nine years management and supervisory experience. they are telling me that I am not qualified even for a position that I am already in.

I have to add that more than a year ago I reported some staff poor performances to Ms. Ginger.

Ms. Ginger did not handle the issue properly and she let the same staff to confronted [sic] me and created bad condition for me which made me frustrated. I reported the issue to Mr. John Robison, the administrator and Ms. Hamner. Since then MS. [sic] Ginger did not approve me for any position which I applied. Apparently she have influence . . . Ms. Preston who is not considering me for any position either.

         In August 2015, Preston conducted Vaziri's “annual performance appraisal” (ECF 24-5, “2015 Appraisal”), “which was shared with [Vaziri] on September 4, 2015.” ECF 24-3 (“Preston Affidavit”), ¶ 6. “Vaziri received an overall ranking of ‘Needs Improvement,' the lowest possible ranking.” Id. “Among the more significant performance deficiencies” that Preston identified were Vaziri's “unfamiliarity with documenting and implementing patient care.” Id. ¶ 7.

         Additionally, Preston “had concerns about . . . Vaziri's professionalism.” Id. ¶ 8. Preston explained: “Akram at times can be viewed as unapproachable to staff and peers. It is important to learn to take constructive feedback without getting defensive. It is also important to learn to actively listen to others to be able to appreciate their view point. Akram would benefit from taking a leadership class pertaining to positive communication.” ECF 24-5 at 2. Further, Preston observed, id. at 3: “There is a lack of trust and teamwork with Akram and her peers. She also struggles with positive communication, actively listening and taking ownership of the situation.”

Preston concluded, id. at 9:

Akram does a good job rounding on staff and patients and providing feedback to the managers. She takes the time to educate team members when there is something that they do not know. Akram could improve on her ability to take constructive feedback without getting upset and defensive. It would be beneficial to Akram to see the supervisors as a team rather than individually. I would like to see Akram improve on her ability to work within a group that is diverse and being able to appreciate this diversity. Akram has a hard time seeing the good of the entire group rather than her individual needs. . . .

         Vaziri responded to the 2015 Appraisal on September 4, 2015, stating, in part: “I [k]now that I am not perfect but I will listen to critisem [sic] and will do my best to grow. . . . I need to get a day shift position to match my family need that I feel stress and be able to bring out my best for patients and who I work with them.” Id. at 11. Also on September 4, 2015, Vaziri electronically signed the Appraisal, acknowledging that she had read the review and discussed it with her supervisor, Preston. Id.

         On October 23, 2015, as a result of Vaziri's “needs improvement” rating, Vaziri was placed on a Performance Improvement Plan (“PIP”). ECF 24-3, ¶¶ 12-13; ECF 24-6 (PIP). In a meeting that same day, Preston, Vaziri, and Human Resources Business Partner Gina Dembeck discussed the PIP, and each signed and dated each page of the plan. ECF 24-6 at 1-4. The PIP explains, in relevant part, id. at 1:

This plan is an opportunity for the employee to make improvements to be able to fully meet the duties and responsibilities of the job. Immediate and sustained improvement is expected and failure to do so may result in further disciplinary action, up to and including termination of employment.

         The PIP also describes particular areas in which Vaziri was regarded as deficient in her performance and for which she needed improvement. Id. at 1-3. It provides, id. at 1-2:

Lack of proactive presence on the units, staff does not perceive Akram as a resource or an advisor for them.

Lack of service as an internal expert resource. Akram herself stated that she does not have the ability to perform as a bedside nurse.

The staff perceives that Akram is not able to navigate the [Electronic Medical Record (“EMR”)] to be able to assist the staff in such. . . .

Argumentative with other supervisors.

At times, displays an accusatory tone. . . .

Limited understanding of directions and guidance without repeated attempts of communication.

         Under the PIP, Preston instructed Vaziri to email Carol Forrest, Manager of the High Intensity Care Unit (“HICU”), to schedule dates on which she would work in the HICU “to increase her comfort level with critical patients, ” ECF 24-3, ¶ 14; to attend a leadership class on “Effective Communication or Connecting with Others, ” prior to November 30, 2015, id. ¶ 15; to speak directly with a co-worker about any disagreement, id.; and to send Preston an email prior to October 26, 2015, with her availability for progress report meetings. Id. In addition, Preston directed Vaziri to meet with Rebecca Shafer, the Clinical Resource Nurse, or attend a “Cerner Navigation” training prior to November 1, 2015. Id. Cerner is the “[EMR] database that Levindale began using in February 2015.” Id. ¶ 7.

         In an email to Preston and Dembeck on November 6, 2015 (ECF 28-13), Vaziri stated that she signed the PIP “because [she] felt pressure from [Preston] and Ms. Gina Dembeck.” Id. at 1. Further, she stated that her signature “d[id] not mean that [she] agreed with [Preston] on what you [all] are accusing me of.” Id.

         Moreover, Vaziri claims she was placed on the PIP “without any clear explanation.” ECF 20 at 5. She alleges that the PIP “was not clear and the deadline was not realistic and not coordinated based on [her] schedule.” Id. Further, Preston, who “was new in her position” as Director of Nursing, “did not have any chance to directly observe [Vaziri] or work with [Vaziri], ” and “[Preston's] evaluation was based on hearsay, not actual facts and evidence.” Id. at 6. Moreover, Preston “did not come up with evidence and date[s] and incident reports or any visual observation of [Vaziri's] performance, ” id., and “questions that [Vaziri] asked [Preston] were not answered properly.” Id. at 5.

         On November 4, 2015, Preston discussed with Vaziri “her lack of progress on many of the PIP tasks and sent her an e-mail following [the] conversation.” ECF 24-3, ¶ 17. Although Vaziri had completed a leadership class, “at least three other significant goals had not been met.” Id. In an email of the same date (ECF 24-7), Preston explained to Vaziri, in relevant part, id.:

[Y]ou were suppose[d] to email Carol Forrest with dates 4 hours each week that you were able to come to the HICU to do share time. This was suppose[d] to be sent out by Monday October 26, 2015, but has yet to be sent to her. . . .

You were also suppose[d] to email with times that you are able to meet once a week to go over the progress of your PIP by October 26, 2015, but I have not received meeting dates from you. This is the second week of your PIP and I have not met with you.

         In the email, Preston recognized that plaintiff had “been going back and forth with times and dates” in regard to Cerner Navigation. Id. And, she noted that plaintiff had completed the leadership class. Id. Nevertheless, Preston warned Vaziri, id.:

I want to reiterate our conversation when reviewing the PIP. Remember that this action plan was put in place to assist you with being successful as a leader in our organization. It is extremely important that you complete the tasks above in a timely manner. Failure to complete them may result in termination . . . .

         Despite Preston's warning, “Vaziri waited until November 8, 2015 - almost two weeks after [the] agreed-upon deadline - to send the e-mail to Carol Forrest.” ECF 24-3, ¶ 18. And, Vaziri failed to send the email Preston requested with proposed dates on which they ...