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Arlene Brown v. Kessler Institute For Rehabilitation

March 7, 2011

ARLENE BROWN PLAINTIFF,
v.
KESSLER INSTITUTE FOR REHABILITATION, INC., DEFENDANT.



The opinion of the court was delivered by: Hochberg, District Judge:

NOT FOR PUBLICATION CLOSED

OPINION & FINAL JUDGMENT

This case arises out of pro se Plaintiff's allegations that she was discriminated against on the basis of race during the course of her employment at Defendant Kessler Institute for Rehabilitation, Inc. A bench trial was held before this Court on February 15 and 16, 2011. This Court heard testimony from three witnesses: Plaintiff Arlene Brown, Mr. Kenneth J. Caldera, Kessler's Director of Human Resources, and Ms. Bonnie Evans, Chief Executive Officer of Kessler's West Orange facility. The Court has considered the evidence adduced at trial, and the legal arguments submitted by the parties. The case is now ripe for final judgment on the merits.

FINDINGS OF FACT*fn1

Pro se Plaintiff Arlene Brown is an African American woman who was employed by the Kessler Institute for Rehabilitation, Inc. from 2001 through October 3, 2008. (Feb. 15 Tr. 50:9- 50:21) For the duration of her employment at Kessler, Brown worked as an Office Administrator in the Out-Patient Case Management Department.*fn2 (Feb. 15 Tr. 53:8-54:2) The Out-Patient Case Management Department employed a number of individuals -- several of whom were African American -- who worked in the same office area. (Feb. 15 Tr. 54:3-55:2; Feb. 16 Tr. 64:9-64:15)

In 2001, 2002 and 2003, Brown received consistently positive performance reviews. (Ex. P-1, P-2, P-3) Brown's 2005 performance review*fn3 is also largely complimentary of her work, though it indicates that she "must improve her communication and interaction with other case management staff and work as a team." (Ex. D-30) In 2007, Brown's supervisor praised her proficiency at her work and her "knowledge and understanding" of the insurance issues she encountered. (Ex. D-31) The reviewer also noted that Brown had "intercountered [sic] numerous communication problems with OA peers and central admissions but is working to re[s]olve those miscommunications and place her efforts in team building." (Id.)

Brown characterized Kessler as a "tough place to work." (Feb. 15 Tr. 15:16) She did extra work discharging patients and working additional hours for more pay. (Feb. 15 Tr. 15:22-16:6) Though Kessler employees often collected money to purchase cakes to celebrate other employees' milestones, Brown testified that no one ever purchased a cake for her or gave her a card. (Feb. 15 Tr. 16:17-17:6, 17:18-17:25, 81:19-81:21)

I. BROWN'S INTERACTIONS WITH CYNTHIA CONROY

At some point in 2004, Cynthia Conroy -- a white employee -- was transferred to the Out-Patient Case Management Department. (Feb. 15 Tr. 8:8-8:11, 9:6-9:8; Feb. 16 Tr. 92:22-92:24) Conroy was not Brown's supervisor, nor did she occupy a more senior position than Brown. Indeed, the two were co-workers at the same level in the Department.

Conroy and Brown had a tumultuous working relationship. Conroy cursed frequently and raised her voice to Brown and others in the Department. (Feb. 15 Tr. 9:11-9:25, 10:12-10:18) However, Brown acknowledged at trial that none of the profanity Conroy used was of a racial nature. (Feb. 15 Tr. 67:7-67:8) Conroy also adopted body language which Brown found confrontational. (Feb. 15 Tr. 13:24-13:25) Brown testified that Conroy was rude to co-workers and patients, and on one occasion indicated to Brown that she planned to send Brown calls from patients "who speak Creole." (Feb. 15 Tr. 11:13-11:25) Brown testified that Conroy was rude to both black and white patients and co-workers. (Feb. 15 Tr. 69:14-69:25) Conroy also frequently came to work crying. (Feb. 15 Tr. 24:19-24:20)

On two occasions during the few years they worked together, Conroy made comments to Brown about her eating habits which Brown viewed as derogatory and racially motivated. On one morning, Conroy expressed surprise that Brown was eating yogurt at her desk. (Feb. 15 Tr. 12:9-12:12) Another day, over lunch, Conroy told Brown that she would not have expected her to be eating a salad and thought she would have been eating a hamburger. (Feb. 15 Tr. 12:13-12:16) Brown did not bring either of these incidents to the attention of her supervisor or anyone else at Kessler. (Feb. 15 Tr. 68:12-68:14, 69:2-69:3)

At one point, Conroy told Brown repeatedly that she made Conroy sick to her stomach. (Feb. 15 Tr. 11:1-11:5) This caused Brown to shake uncontrollably and to leave her office. (Feb. 15 Tr. 11:5-11:9) The next day, Brown complained to her supervisor, Denise DiLorenzo, about Conroy's conduct. (Feb. 15 Tr. 11:10-11:15)

On another day in 2008, Conroy came to work later than normal. (Feb. 15 Tr. 18:18-18:24) Brown told Conroy that another member of the Department was looking for her. (Feb. 15 Tr. 19:5-19:6) Approximately ten minutes later, Conroy asked Brown if she had taken care of the patients who had been waiting. (Feb. 15 Tr. 19:10-19:12) Brown informed Conroy that she thought Conroy had been handling the patients. (Feb. 15 Tr. 9:12-9:14) The two had a testy verbal exchange about Conroy's work output which culminated with Conroy telling Brown to "bring it on." (Feb. 15 Tr. 9:14-9:20) Brown reported this incident to Kenneth Caldera, the Director of Human Resources. (Feb. 15 Tr. 19:21-19:23) This was the first time she had reported any problem to Caldera. (Feb. 15 Tr. 59:4-59:14, 73:4-73:12)

The day after the "bring it on" incident, Brown sent a two page, typed letter to Caldera outlining her history of conflict with Conroy and explaining what had transpired the previous day.*fn4 (Ex. D-14) The letter does not accuse Conroy of racial discrimination, nor tie any of Brown's complaints to her race. (Id.; Feb. 15 Tr. 79:18-79:22)

After the "bring it on" incident, Caldera testified that he investigated both Brown and Conroy's actions. (Feb. 16 Tr. 73:19-73:23) Caldera determined that the incident was a "miscommunication" and that Conroy did not physically threaten Brown. (Feb. 16 Tr. 73:24-73:25, 75:1-75:3)

On May 13, 2008, Brown received a "Disciplinary Action Form,"*fn5 on which her supervisor noted that:

Arleen [sic] has failed to take steps to demonstrate and improve ability to communicate effectively with fellow colleagues in regards to workflow/intake process which negatively impacts customer service, workflow and fosters a negative work environment. For example, on 5/7, a colleague asked for a status of the IP-OP intakes from the prior day and Arleen was not able to provide an answer. Arleen was also asked for clarification on status of paper intakes in the folder and if Arleen took any processing. Arleen's response was not satisfactory, in that she responded to the effect "are you keeping counts on me." As a result, there was breakdown in workflow and an increase in unnecessary negativity. (Ex. D-6)

The following day, Brown sent an e-mail to Caldera, outlining her problems with Conroy: After my meeting with you regarding filing a formal complaint against Cynthia Conroy for her constant rude, and offensive behavior in the office and towards patients, other employees and myself. The management did have a meeting but they did not address her extremely rude behavior and tantrums....Yesterday, I was called into a meeting and given a written warning by Raquel (Pat Judd was present) because of miscommunication. Ken[,] I am being harassed and intimidated. I would like to come to work and do my work in peace. This is retaliation because I came and spoke with you and file[d] that complaint because Cynthia threatened me. As I mentioned to you before this constant but has escalated, as they have not addressed her behavior and the reason why I came to you is because she threatened me that day by saying "bring it on." I have witnesses as to her behavior in the office. (Ex. D-7) The e-mail does not accuse Conroy or anyone else at Kessler of racial discrimination, nor does it set forth Brown's belief that any harassment she had suffered was of a racial nature. (Id.; Feb. 15 Tr. 78:6-78:8) Brown never orally reported to anyone at Kessler that she was being racially harassed, and Brown testified that she never submitted any documents accusing anyone at Kessler of racial discrimination. (Feb. 15 Tr. 78:7-78:8)

Brown later met with one of her supervisors at Kessler, Pat Judd, who informed her that both she and Conroy needed to improve in how they interacted with one another. (Feb. 15 Tr. 80:17-80:20) Indeed, Conroy was issued a "Disciplinary Action Form" for the "bring it on" incident as well.*fn6 (Feb. 16 Tr. 93:9-93:14)

Brown submitted self-evaluations as part of the performance review process in each year from 2004 through 2008. (Ex. D-13) Though the forms asked employees to articulate "particular problems in carrying out [their] specific duties," Brown never mentioned Cynthia Conroy, nor complained of discrimination of any kind. (Id.; Feb. 15 Tr. 60:15-60:22)

II. 2008 DISCIPLINARY ACTION AND TRANSFER REQUESTS

Brown claims that after the "bring it on" incident, her supervisors began to cite her for trivial infractions. (Feb. 15 Tr. 19:23-20:10) Though she had received a pay increase in each prior year she worked for Kessler, ...


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