# Voltaire v. New York City Health and Hospitals Corp.

> District Court, E.D. New York · February 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10305644

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------x

MARIE VOLTAIRE,

Plaintiff,

MEMORANDUM AND ORDER
-against- 19-CV-3705(EK)(RER)

NEW YORK CITY HEALTH AND
HOSPITALS CORP.,

Defendant.

-------------------------------------------x

ERIC KOMITEE, United States District Judge:
Plaintiff Marie Voltaire, a nurse employed by
defendant New York City Health and Hospitals Corporation (HHC),
brings this action against HHC for discrimination and
retaliation in violation of the Americans with Disabilities Act
and New York state law. Because the parties dispute whether a
2018 settlement-and-release agreement that Plaintiff executed in
favor of Defendant precludes the claims at issue here, the Court
converted Defendant’s motion to dismiss into a motion for
summary judgment, in order to allow for the consideration of the
release and other relevant materials. I now conclude that the
release does cover the Plaintiff’s claims and therefore grant
Defendant’s motion for summary judgment.
I. Background
The following facts, set forth in the parties’
submissions, are undisputed unless otherwise specified.

Plaintiff was employed by HHC as a Staff Nurse at Coney Island
Hospital during the period at issue in this case. See Amended
Complaint ¶ 3, ECF No. 14 (Compl.). On January 18, 2013,
Plaintiff was injured when she slipped and fell at work. Id.
¶ 9. The Amended Complaint (“Complaint”) reports that she
“sustained serious and permanent injuries to her neck, back,
left shoulder and left leg”; that she underwent surgery because
of these injuries; and that she has been in pain ever since.
Id. ¶¶ 9, 12. Eight months after the accident, Plaintiff
returned to work but sought what she terms a “reasonable
accommodation” under the circumstances — namely, permission to
stay home from work when her pain required it. Id. ¶¶ 10-12.

Plaintiff alleges that after her surgery, her employer did not
provide her with these or other accommodations. Id. ¶ 12.
Plaintiff filed a charge of “failure to accommodate” with the
Equal Employment Opportunity Commission (EEOC) in February 2016.
Id. ¶¶ 12-13.
According to her Complaint, Defendant then asked
Plaintiff to return to work and told her they would accommodate
her disability. Id. ¶ 13. The Complaint does not specify who
made this representation, what accommodation they offered, or
whether the offer was communicated in writing, among other
things. After her return, Plaintiff was assigned to the
Hospital’s Emergency Department. Id. Plaintiff failed to

report to her assignment in the Emergency Department from
March 9, 2016 to May 16, 2016, apparently because she could not,
or would not, perform the duties required of her.1 On July 15,
2016, Defendant instituted disciplinary proceedings against
Plaintiff.
Defendant brought this disciplinary action under
“Charge Number 2015-D-0459.” See Def’s Ex. A, ECF No. 21-1
(“Disciplinary Action dated July 15, 2016”).2 This action was
based on four “Specifications” of misconduct, three of which
arose out of a verbal altercation between Plaintiff and a
coworker in September 2015; and one of which arose out of
Plaintiff’s March-to-May 2016 absence. The four Specifications

set out in Charge Number 2015-D-0459 were:
Specification 1: “On or about September 20, 2015, you
engaged in a threatening and loud verbal argument with

1 Plaintiff alleges that the person in charge of the Emergency
Department told her they “needed a nurse who could work without restrictions”
and sent her home. Compl. ¶ 13. However, the contemporaneous disciplinary
records state that she failed to appear because she believed the assignment
did not fit her reasonable accommodation. See Def’s Ex. B ECF No. 21-2;
Def’s Ex. C, ECF No. 21-3. The underlying reason for her absence does not
ultimately affect the analysis of whether the resulting suspension falls
within the scope of the parties’ settlement agreement.

2 This disciplinary action, including the “Specifications” of misconduct
alleged thereunder, comprised one of the three actions later consolidated
under the OATH Index Number referred to in the settlement agreement.
[a coworker], in the presence of patients and
coworkers.”

Specification 2: “On or about September 20, 2015, you
refused a directive from the Charge Nurse and Head
Nurse to take a patient admission.”

Specification 3: “On or about September 20, 2015, you
stated in sum and substance to [the coworker named in
Specification 1], if she calls you a liar again, you
will bear her up.”

Specification 4: “You failed to report for duty for
the period of March 9, 2016 to May 16, 2016.”

See id. at 3.
At the initial disciplinary conference, Conference
Officer Audrey Russell heard argument on all four
Specifications, set forth her findings, and recommended that
Plaintiff receive a 45-day suspension. See Def’s Ex. B at 3,
ECF No. 21-2 (“Step 1(a) Recommendation”). Next, the
Plaintiff’s union (the New York State Nurses’ Association)
appealed Conference Officer Russell’s recommendation on behalf
of Plaintiff through the Step II grievance process. Following
another conference and review of the record, the Step II Review
Officer concluded that the “preponderance of the credible
evidence proves [Plaintiff] culpable of the charged conduct” and
determined that the recommended 45-day suspension was
appropriate. See Def’s Ex. C at 2-3, ECF No. 21-3 (“Step II
Decision”).
Plaintiff served the 45-day suspension in 2017,
following the Step II decision. Plaintiff reports that she was
suspended without pay from May 8, 2017 to June 21, 2017. During

this suspension period, Plaintiff took two actions.
On June 14, 2017, she filed an “Intake Questionnaire”
with the EEOC challenging the 45-day suspension.3 See Pl’s Ex.
1, ECF No. 22-1 (“EEOC Intake Form”). On the intake form,
Plaintiff checked a box stating that, “I want to file a charge
of discrimination, and I authorize the EEOC to look into the
discrimination I described above.” Id. at 5. Plaintiff’s
charge was not filed with the EEOC until July 10, 2018,
approximately one year later. See Coyne Decl., Ex. 1, ECF No.
17-3 (sworn charge dated July 10, 2018); see also Pl’s Ex. 2,
ECF No. 22-2 (unsworn copy of EEOC charge dated June 6, 2018).
Plaintiff also appealed the Step II decision to the

city’s Office of Administrative Trials and Hearings (OATH)
pursuant to Section 7.5 of the New York City Health and
Hospitals Corporation Personnel Rules and Regulations. See
Def’s Ex. 4, ECF No. 21-4 (“OATH Appeal”). On June 1, 2017,
while the OATH appeal was pending, Defendant revised the
original disciplinary action dated July 15, 2016 (Charge Number

3 Plaintiff contends that this document functions as the required EEOC
charge for timeliness purposes, and that it was filed within 300 days of the
allegedly unlawful employment practice, rendering this action timely.
2015-D-0459) to withdraw Specification 4 — the Specification
alleging that Plaintiff had failed to report for duty. See
Def’s Supp. Br. at 2, ECF No. 21. The revised version of Charge

Number 2015-D-0459 thus included only Specifications 1 through
3, which alleged that Plaintiff engaged in a loud and
threatening argument in front of patients; refused a directive
to take a patient admission; and threatened to beat up a
coworker. See Coyne Decl. Ex. 4 at 9, ECF No. 17-6 (“OATH
Order”).
Finally, on June 14, 2018, OATH sent a letter to
Plaintiff notifying her that a pre-trial conference would take
place on August 27, 2018, concerning her appeal of the March
2017 Step II Decision affirming her suspension. See id. at 1-2.
Also pending before OATH were Plaintiff’s appeals of two other
disciplinary decisions that resulted from separate proceedings

against her: one from 2015 under Charge Number 2014-D-0369,
based on nine Specifications of misconduct that occurred in
2014, id. at 5; and another from 2018 under Charge Number 2018-
D-0017, based on seven Specifications of misconduct that
occurred the same year, id. at 12. Plaintiff’s pending appeals
of the disciplinary decisions in all three of these actions —
Charge Numbers 2015-D-0459, 2014-D-0369, and 2018-D-0017 — were
consolidated under “OATH Index Number 182749.” Id. at 1.
Following the first OATH conference, Plaintiff entered
into the settlement-and-release agreement to resolve OATH Index
Number 182749. Under the terms of the settlement, Plaintiff

agreed to accept the disciplinary penalty of 60-days’ suspension
for all three disciplinary actions. See Coyne Decl., Ex. 3 at
1, ECF No. 17-5 (“Settlement Agreement”). The 60-days’
suspension was deemed to have already been served, so no
additional suspension would result from the settlement. See id.
Plaintiff further agreed to release Defendant from “any and all
claims . . . in connection with the facts forming the basis of
the underlying dispute raised under OATH Index Number 182749” —
the consolidated appeal’s docket number. Id. at 2. In return,
the settlement agreement provided that Plaintiff would receive
back pay for the period from June 7, 2017 to June 21, 2017. Id.
at 1.

Plaintiff commenced this action nearly one year later,
alleging that Defendant discriminated against her based on her
disability and retaliated against her for seeking reasonable
accommodations and filing the failure-to-accommodate charge with
the EEOC in 2016. The only specific adverse employment action
alleged is Plaintiff’s 45-day suspension in 2017.4 Before the

4 Plaintiff’s 45-day suspension in 2017 is the only adverse employment
action identified in her Complaint and motion papers. To the extent that the
Complaint purports to allege any other instances of discriminatory or
Court is Defendant’s motion for summary judgment pursuant to
Federal Rule 56 on the following grounds: (1) Plaintiff’s ADA
claims are time-barred because she filed the operative EEOC

charge on July 10, 2018 (not June 14, 2017, the date when she
filed the Intake Questionnaire); and (2) all of Plaintiff’s
claims are barred by the settlement-and-release agreement
between the parties.
II. Legal Standards
Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact” and
that he “is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A material fact is one that “can affect the
outcome under the applicable substantive law.” Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996). A genuine dispute is
one that can “reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

retaliatory conduct by Defendant, it must be dismissed for failure to state a
claim pursuant to Defendant’s motion to dismiss under Rule 12(b)(6). The
Complaint vaguely alleges that Defendant has “continued” to engage in
unlawful conduct through “disciplinary warnings, counseling, [and] other
discriminatory and retaliatory actions,” id. ¶ 15, but Plaintiff does not set
forth any factual content regarding another adverse employment action aside
from her 45-day suspension. Conclusory statements about discriminatory and
retaliatory conduct such as these cannot sustain a claim for relief. See,
e.g., Ortiz v. City of New York, No. 12-CV-3118, 2012 WL 6200397, at *5
(S.D.N.Y. Dec. 12, 2012) (“For a retaliation claim to survive a motion to
dismiss, it must be supported by specific and detailed factual allegations,
not stated in wholly conclusory terms.”); see also Jones v. Target Corp., No.
15-CV-4672, 2016 WL 50779, at *9 (E.D.N.Y. Jan. 4, 2016) (finding that
complaint failed to state a claim for retaliation in violation of the ADA
where, among other issues, the complaint “fail[ed] to identify any facts
regarding when the alleged events and adverse actions occurred”).
performing this analysis, the Court must resolve all ambiguities
and draw all inferences in favor of the non-moving party. Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,

1223 (2d Cir. 1994). “If, in this generous light, a material
issue is found to exist, summary judgment is improper.”
Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157,
160 (2d Cir. 1999).
The moving party may establish that there is no
genuine dispute “by showing that little or no evidence may be
found in support of the nonmoving party’s case.” Gallo, 22 F.3d
at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). If the moving party meets this burden, the non-moving
party “must come forward with specific facts showing that there
is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d
68, 73 (2d Cir. 1998). Summary judgment must be granted if “no

rational finder of fact could find in favor of the nonmoving
party because the evidence to support its case is so slight.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(internal quotations omitted).
III. Discussion
Defendant first argues that Plaintiff’s ADA claims are
time-barred because she filed the operative EEOC charge on July
10, 2018, which was more than 300 days after her 45-day
suspension in 2017;5 Plaintiff counters that her Intake
Questionnaire constitutes a charge for timeliness purposes.6 The
Court need not reach this question because, even assuming that

her Intake Questionnaire constitutes a timely-filed EEOC charge,
her claims are barred by the settlement and release.
As previewed above, Defendant argues that Plaintiff’s
claim regarding her 45-day suspension in 2017 — the only adverse
employment action specifically identified in her Complaint — is
barred by the settlement-and-release agreement between the
parties. Settlements and releases are construed according to
general principles of contract law. See, e.g., Tromp v. City of
New York, 465 F. App’x 50, 51 (2d Cir. 2012). “Under New York
law, a release that is clear and unambiguous on its face and
which is knowingly and voluntarily entered into will be
enforced.” Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 463

(2d Cir. 1998). The construction of an unambiguous contract is
a matter of law and may properly support summary judgment. See,

5 The ADA incorporates the enforcement provisions of Title VII,
including 42 U.S.C. § 2000e–5, which requires — as relevant here — the filing
of a charge with the EEOC within 300 days of the allegedly unlawful
employment practice as a prerequisite to any private action. See 42 U.S.C.
§ 12117(a).

6 Some courts have found that a plaintiff’s ADA claims were timely when
the Intake Questionnaire described the alleged discrimination in adequate
detail and unambiguously authorized the EEOC to investigate the matter. See,
e.g., Acheampong v. New York City Health and Hosps. Corp., No. 11-CV-9205,
2015 WL 1333242, at *7 (S.D.N.Y. Mar. 25, 2015).
e.g., Roberts v. Doe 1, No. 14-CV-9174, 2015 WL 670180, at *4-*7
(S.D.N.Y. Feb. 17, 2015).
As set forth above, Plaintiff executed the Settlement

Agreement with Defendant on August 27, 2018, after appealing the
disciplinary determination that led to her 45-day suspension to
OATH, together with two other disciplinary decisions. All three
disciplinary actions were consolidated on appeal under a single
“Index Number” as part of the OATH proceedings. As discussed
above, in the Settlement Agreement, Plaintiff agreed to release
Defendant from “any and all claims . . . in connection with the
facts forming the basis of the underlying dispute raised under
OATH Index Number 182749.” Accordingly, if Plaintiff’s 45-day
suspension falls within the scope of OATH Index Number 182749,
any claim regarding the suspension is barred by the settlement.
The parties diverge on the question of what conduct

served as the catalyst for the 45-day suspension. Plaintiff
contends that the suspension arose from the Defendant’s
allegation that she “abandon[ed] her job” — i.e., that she
failed to report for work for the March-to-May 2016 period noted
above. Compl. ¶ 13. This contention is important to
Plaintiff’s claim because Defendant later agreed to drop the
failure-to-report charge from the disciplinary proceedings
before the parties executed the settlement and release at issue.
Thus, Plaintiff argues, she never released Defendant from the
dispute over her absence; and the 45-day suspension flowed from
the disciplinary charges in response to that absence. See Pl’s
Supp. Br. at 2, ECF No. 22 (Plaintiff asserts that she “served

the 45 days suspension separately and apart from the charges
which formed the subject of the Stipulation”).
Plaintiff’s argument assumes that her absence formed
the sole basis for her 45-day suspension, and that the removal
of this allegation from the consolidated OATH appeal necessarily
withdrew the 45-day suspension from review as well. The record
demonstrates, however, that Plaintiff’s contention is
inaccurate. To see why, one must look only to the “Step 1(a)
Recommendation” issued by Conference Officer Russell, which sets
out the “findings” pursuant to which Officer Russell imposed the
45-day sentence. See Step 1(a) Recommendation at 2. These
findings make no mention of the 2016 “failure to report for

duty” underlying Specification 4 — despite the fact that
Specification 4 had not, at that point, yet been
withdrawn. Instead, Officer Russell’s “Findings” focus entirely
on Plaintiff’s “blatant[] disregard[]” of a directive from the
Head Nurse to take patient admission; “complete disregard[]” for
patient care; “lack of emotion” toward patients and colleagues;
her “verbal threat to beat up” a colleague; and “disrespect[]”
to her supervisor. The Conference Officer concluded that
Plaintiff’s actions “lacked compassion” and that she “should be
held accountable” — namely, by the recommended 45-day
suspension. See id. The Conference Officer’s findings did not
mention the absence set out in Specification 4 at all.

In affirming the Step 1(a) recommendation, Review
Officer Damon Levenstien agreed that the record established
Plaintiff had a “heated verbal exchange” with her coworker and
that it was reasonable to construe her language as a “threat of
physical violence.” See Step II Decision at 2. He also
considered the absence set out in Specification 4 and found
that, notwithstanding Plaintiff’s contention that she did not
appear because the assignment “did not fit her reasonable
accommodation,” it was “incumbent on [Plaintiff] to go to her
assignment and deal with it through the appropriate channels.”
Id. Although Review Officer Levenstien relied, in part, on the
evidence underlying Specification 4, his affirmation of the Step

1(a) recommendation was based on his review of the record “in
its entirety.” Id. He concluded that the preponderance of the
evidence supported Plaintiff’s culpability and that a 45-day
suspension was an appropriate penalty. Id. at 2-3.
Defendant dropped Specification 4 from Charge Number
2015-D-0459 on June 1, 2017, after Plaintiff elected to appeal
her suspension to OATH but prior to the June 14, 2018 notice
informing Plaintiff that her pending appeals would be the
subject of an OATH pre-trial conference. However, Defendant
indisputably continued to pursue the affirmation of the 45-day
suspension at the OATH level. This is evidenced by the fact
that Charge Number 2015-D-0459 — the basis for Plaintiff’s 45-

day suspension — was consolidated with other disciplinary
actions on appeal and proceeded to a pre-trial conference even
after Specification 4 was withdrawn, and would have proceeded to
trial if not settled. See OATH Order at 1 (notifying Plaintiff
of an upcoming pre-trial conference regarding three sets of
charges that included the original and revised versions of
Charge Number 2015-D-0459). All disciplinary actions that were
the subject of the pre-trial conference were then settled.
Therefore, when Plaintiff agreed to release Defendant
from “any and all claims or rights of action . . . which they
may now have, which they may have had heretofore, or which they
may have in the future in connection with . . . Index Number

182749,” Settlement Agreement at 2, this release plainly
extended to any claim that the 45-day suspension was
discriminatory or retaliatory. Plaintiff’s 45-day suspension
was never, itself, a “charge,” as Plaintiff suggests. See Pl’s
Opp. at 5, ECF No. 17-7 (referring to the suspension as “among
the initial charges brought against” her). Instead, the
suspension was a disciplinary action that constituted the
outcome of underlying charges. That disciplinary action was
clearly a subject — indeed, a central one — of Plaintiff’s OATH
appeal and final settlement agreement.7
Defendant has presented documentation sufficient to

establish that the Settlement Agreement released Defendant of
any claim arising out of her 45-day suspension. Plaintiff,
conversely, has presented no evidence to call the Settlement
Agreement’s validity into question or to support a different
interpretation of its terms. Accordingly, there is no genuine
issue of material fact that Plaintiff’s claim with respect to
her 45-day suspension is barred by the operative settlement.
See Roberts, 2015 WL 670180, at *7.

7 The Settlement Agreement also provided Plaintiff with backpay for a
14-day period in June 2017, when, according to Plaintiff’s EEOC charge, she
was serving the very 45-day suspension that is at issue. That this period is
expressly covered by the settlement provides further proof that the 45-day
suspension is within the scope of the Settlement Agreement.
IV. Conclusion
For the reasons set forth above, Defendant’s motion
for summary judgment is granted, and Plaintiff’s Amended

Complaint is dismissed in its entirety. The Clerk of Court is
respectfully directed to enter judgment and close this case.

SO ORDERED.

_/s/ Eric Komitee_________________
ERIC KOMITEE
United States District Judge

Dated: February 12, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305644. Public record. Not legal advice.