2d Circuit: Race Discrimination, Retaliation, & Vacation Pay Claims Properly Dismissed

In Tubo v. Orange Reg’l Med. Ctr., No. 16-632-CV, 2017 WL 2180952 (2d Cir. May 17, 2017) (Summary Order), the court affirmed the dismissal of plaintiff’s race discrimination, retaliation, and vacation pay/contract claims.

As to her race discrimination claim, the court explained:

We agree with the district court that Tubo failed to establish a prima facie case of discrimination because she did not demonstrate that her termination occurred under circumstances giving rise to an inference of discrimination. Tubo asserts that her employer demonstrated discriminatory bias by, inter alia, excluding her from nursing leadership meetings, requiring her to perform the job of three people, and denying her requests for support staff that other administrators and directors had allegedly received. The record reflects, however, that Tubo was not invited to director meetings because she was an administrator, not a director, and that she did not receive the clinical support she felt she needed because her department was already overstaffed.

It also, inter alia, rejected her argument that she was replaced by white employees (as such claim was not supported by the record), and discounted her assertion that an unidentified employee used the term “negro”, which it characterized as an “isolated stray remark.”

Next, the court held that plaintiff’s retaliation claim failed, noting that plaintiff “relies only on speculation that either [the hospital’s CEO] or Tubo’s supervisor was aware of [plaintiff’s] complaint” regarding the use of the term “negro.” She also could not show that the employer’s legitimate non-retaliatory reason for her termination was pretextual.

Finally, as to plaintiff’s breach of contract/New York Labor Law claim, the court noted that “[a]n employee’s entitlement to receive payment for accrued, unused vacation time upon termination of employment is governed by the terms of the employer’s publicized policy.” Here, plaintiff could not avoid the company’s Vacation Policy’s explicit statement that “[a]n employee terminated for reasons other than an economic layoff, retrenchment or a departmental reorganization or an employee who resigns without proper working notice automatically forfeits any accrued benefits.” (Emphasis in original.)