11-1680-cv
Harrow v. St. Luke's Cornwall Hospital

                        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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of June, two thousand twelve.

PRESENT:
             RALPH K. WINTER,
             DENNY CHIN,
             CHRISTOPHER F. DRONEY,
                       Circuit Judges.
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DOLORES HARROW,
                          Plaintiff-Appellant,

                   -v.-                                          11-1680-cv

ST. LUKE'S CORNWALL HOSPITAL,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                 STEPHEN BERGSTEIN, Bergstein &
                                         Ullrich, LLP, Chester, New York
                                         (Christopher D. Watkins, Sussman &
                                         Watkins, Goshen, New York, on the
                                         brief).

FOR DEFENDANT-APPELLEE:                  JOHN KEIL (Adam Michael Harris, on
                                         the brief), Collazo Florentino &
                                         Keil LLP, New York, New York.

             Appeal from a judgment of the United States District

Court for the Southern District of New York (Seibel, J.).
             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.
             Plaintiff-appellant Dolores Harrow appeals from the

district court's judgment of March 29, 2011.    Judgment was

entered pursuant to the district court's decision of March 28,

2011, granting summary judgment in favor of defendant St. Luke's

Cornwall Hospital (the "Hospital") and dismissing Harrow's claims

under Title VII of the Civil Rights Act of 1964 (codified as

amended in 42 U.S.C. §§ 2000e to 2000e-17), 42 U.S.C. § 1981, and

the New York State Human Rights Law, N.Y. Exec. Law §§ 290, 296.

             We review the award of summary judgment de novo.   See

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.

2010).     We have reviewed the record and proceedings below, and we

affirm for substantially the reasons set forth by the district

court in its thorough and carefully-considered decision.

             We assume the parties' familiarity with the facts and

procedural history of the case and the issues presented for

review.     Construed in the light most favorable to Harrow, see
Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir.

2006), the facts before the district court below were as follows:

             On June 4, 2008, Harrow was involved in an incident

with a patient, which resulted in a complaint about Harrow from

the patient's family.     Directly following this incident, the

patient's husband -- outside of Harrow's hearing -- made a racist

remark about Harrow.     Harrow's employment was terminated on June

9, 2008.     Although this complaint was a precipitating factor in

her discharge, Harrow had a long prior history of disciplinary

problems.     The Hospital received over a dozen patient complaints

about her from 2001 to 2008, including six in 2007 and 2008.       The

Hospital attempted to address these and other performance
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problems.   For example, the Hospital verbally counseled Harrow

after receiving multiple complaints about her interactions with

patients; removed a patient from her care after she handled the

patient roughly; issued a written warning for her refusal to

bring a patient coffee; suspended her from the remainder of her

shift and issued a written warning for her extensive absences and

disruptive behavior; and issued yet another written warning for a

comment, made in front of a doctor, that "orthopedic patients are

too much work" and that the orthopedic floor was "too heavy."

Harrow has not argued that any of these prior disciplinary

actions were discriminatory.

            Even assuming that the patient's husband made a racist

statement about Harrow during the June 4, 2008, incident, there

is nothing in the record to suggest that the Hospital fired her

to accommodate the husband's purported racism.   See Silver v. N.

Shore Univ. Hosp., 490 F. Supp. 2d 354, 365 (S.D.N.Y. 2007)

(citing Wigginess Inc. v. Fruchtman, 482 F. Supp. 681, 692

(S.D.N.Y. 1979) ("Employers may not discriminate on the basis of

their customers' preferences.")).    In fact, the complaint about

Harrow was made not by the husband, but by the patient's son in a

subsequent telephone call.    Moreover, hospital officials never

even spoke with the patient's husband about the events of June 4.

No reasonable juror could have found that the husband's purported

racism was a factor in the Hospital's decision to terminate

Harrow's employment.    Indeed, the Hospital hired an African-

American woman to fill Harrow's position.    A reasonable jury

could only find that the Hospital fired Harrow for a legitimate,

nondiscriminatory reason: her long history of poor performance.
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          We have considered all of Harrow's remaining arguments

and find them to be without merit.   Accordingly, the judgment of

the district court is hereby AFFIRMED.

                              FOR THE COURT:
                              CATHERINE O'HAGAN WOLFE, CLERK




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