Liburd v. Bronx Lebanon Hospital Center , 372 F. App'x 137 ( 2010 )

09-2910-cv
Liburd v. Bronx Lebanon Hospital Center, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 GUIDO CALABRESI,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 PEARLINE O. LIBURD,
14 Plaintiff-Appellant,
15
16 UNITED STATES OF AMERICA,
17 Plaintiff,
18
19 -v.- 09-2910-cv
20
21 BRONX LEBANON HOSPITAL CENTER, ANDREAS
22 EVDOKAS, individually and as
23 Administrative Director, RAYMOND
24 ESTEVES, individually and as Assistant
25 Vice President of Clinical Services,
26 Defendants-Appellees.
27 - - - - - - - - - - - - - - - - - - - -X
28
29 APPEARING FOR APPELLANT: Gregory G. Smith (Janet J.
30 Lennon, on the brief), Gregory
1 G. Smith & Associates, New York,
2 NY.
3
4 APPEARING FOR APPELLEES: Nancy V. Wright (Ricki E. Roer,
5 on the brief), Wilson, Elser,
6 Moskowitz, Edelman & Dicker LLP,
7 New York, NY.
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Baer, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Plaintiff-appellant Pearline O. Liburd appeals from an
17 order of the United States District Court for the Southern
18 District of New York (Baer, J.), which denied her motion for
19 reconsideration. Because the motion for reconsideration was
20 filed within ten days of the underlying grant of summary
21 judgment in favor of defendants-appellants and renewed the
22 arguments Liburd raised in opposition to summary judgment,
23 we also review the order granting summary judgment. See “R”
24 Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.
25 2008) (adopting “a straightforward approach . . . whereby a
26 notice of appeal from denial of a motion to reconsider,
27 filed within ten days of the order or judgment sought to be
28 considered, suffices to bring up for review the underlying
29 order or judgment, at least where the motion renews
30 arguments previously made”). We assume the parties’
31 familiarity with the underlying facts, the procedural
32 history, and the issues presented for review.
33
34 “We review an award of summary judgment de novo, and
35 will uphold the judgment if the evidence, viewed in the
36 light most favorable to the party against whom it is
37 entered, demonstrates that there are no genuine issues of
38 material fact and that the judgment is warranted as a matter
39 of law.” Global Network Commc’ns, Inc. v. City of New York,
40 562 F.3d 145, 150 (2d Cir. 2009); see also Fed. R. Civ. P.
41 56(c)(2). “We review a district court’s denial of a motion
42 for reconsideration for abuse of discretion.” RJE Corp. v.
43 Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003)
44 (per curiam). Following review based on the appropriate
2
1 standards in this case, we affirm the district court’s grant
2 of summary judgment and denial of reconsideration.
3
4 The district court properly rejected Liburd’s request
5 for an adverse inference based on defendants’ purported
6 spoliation of telephone records and patient files. Even
7 assuming that Liburd could establish that defendants had an
8 obligation to preserve certain telephone records, she has
9 failed to present a genuine issue of material fact as to
10 whether any other managers were implicated in the telephone
11 audits and were unable to explain excessive charges in their
12 telephone usage reports. See Byrnie v. Town of Cromwell,
13 Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001) (requiring “a
14 court [to] determine whether there is any likelihood that
15 the destroyed evidence would have been of the nature alleged
16 by the party affected by its destruction” (internal
17 quotation marks omitted)). Even considering Liburd’s
18 explanation for the local addresses listed on the files for
19 patients she contends she called long-distance, she fails to
20 raise a genuine issue of material fact that the patient
21 files support a legitimate business purpose for her
22 international calling because none of the patients she
23 identified were treated in the Harm Reduction Program and
24 she nowhere alleged that her job responsibilities included
25 general recruiting for the Bronx Lebanon Hospital Center
26 (the “Hospital”).
27
28 We affirm the grant of summary judgment and the denial
29 of reconsideration regarding Liburd’s discrimination claims
30 brought under Title VII of the Civil Rights Act of 1964, as
31 amended, 42 U.S.C. § 2000e et seq. (“Title VII”), against
32 the Hospital, and 42 U.S.C. § 1981 (“Section 1981”), against
33 the Hospital and Raymond Esteves. Even assuming that Liburd
34 could establish a prima facie case of discrimination based
35 on race or color, defendants proffered her abuse of
36 telephone privileges as a legitimate, non-discriminatory
37 reason for Liburd’s termination and Liburd failed to raise a
38 genuine issue of material fact as to whether that reason was
39 a pretext for discrimination. Moreover, Liburd failed to
40 offer evidence that other individuals placed the
41 international calls reported on her telephone usage logs or
42 that Esteves or Andreas Evdokas were involved in the
43 telephone audit. See Cifarelli v. Village of Babylon, 93
44 F.3d 47, 51 (2d Cir. 1996) (“[M]ere conclusory allegations,
3
1 speculation or conjecture will not avail a party resisting
2 summary judgment.”).
3
4 We affirm the grant of summary judgment and the denial
5 of reconsideration regarding Liburd’s retaliation claim
6 brought under the False Claims Act, 31 U.S.C. § 3730(h) (the
7 “FCA”). Even assuming that Liburd’s October 18, 2005
8 memorandum to Dr. Levine (and her February and April 2006
9 attempts to determine the location of eight computers)
10 constituted protected conduct under the FCA, defendants
11 proffered a legitimate, non-retaliatory reason for Liburd’s
12 termination and Liburd failed to raise a genuine issue of
13 material fact as to whether that reason was a pretext for
14 retaliation.
15
16 We affirm the grant of summary judgment and the denial
17 of reconsideration regarding Liburd’s hostile work
18 environment claims brought under Title VII against the
19 Hospital and Section 1981 against the Hospital and Esteves.
20 Considered in their totality and viewed in the light most
21 favorable to Liburd, the comments alleged, Esteves’s alleged
22 conduct at the September 2005 meeting, and the other alleged
23 conduct, are not sufficient to raise a genuine issue to be
24 tried as to severity or pervasiveness notwithstanding the
25 crude and contemptible character of what is alleged.
26 See Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
27 2000) (“[A] plaintiff must produce evidence that the
28 workplace [wa]s permeated with discriminatory intimidation,
29 ridicule, and insult, that [wa]s sufficiently severe or
30 pervasive to alter the conditions of the victim’s
31 employment.” (internal quotation marks omitted)). The
32 alleged conduct falls short of the requisite levels of
33 severity or pervasiveness. See, e.g., Alfano v. Costello,
34 294 F.3d 365 (2d Cir. 2002) (overturning a jury verdict in
35 favor of the plaintiff because the evidence at trial--
36 demonstrating conduct more egregious than that involved in
37 the instant case--was insufficient as a matter of law to
38 establish a hostile work environment).
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4
1 We have considered all of Liburd’s contentions on this
2 appeal and have found them to be without merit.
3 Accordingly, the judgment of the district court is hereby
4 AFFIRMED.
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
5