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LEXSEE 233 FED APPX 17 

Analysis 

As of: Apr 25, 2008 

ANGELLA TIMOTHY, Plaintiff-Appellant, -v.- OUR LADY OF MERCY 

MEDICAL CENTER and OUR LADY OF MERCY HEALTHCARE SYSTEM, 

INC., Defendants-Appellees. 

No. 06-0081-cv 

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

233 Fed. Appx. 17; 2007 U.S. App. LEXIS 3980

February 21, 2007, Decided 

NOTICE: [**1] PLEASE REFER TO FEDERAL 

RULES OF APPELLATE PROCEDURE RULE 32.1 

GOVERNING THE CITATION TO UNPUBLISHED 

OPINIONS. 

PRIOR HISTORY: Appeal from the United States 

District Court for the Southern District of New York 

(Richard C. Casey, Judge). 

Timothy v. Our Lady of Mercy Med. Ctr., 2005 U.S. Dist. 

LEXIS 31560 (S.D.N.Y., Dec. 6, 2005)

COUNSEL: For Plaintiff-Appellant: ANNE L. CLARK, 

Vladeck, Waldman, Elias & Engelhard, P.C., New York, 

New York. 

For Defendants-Appellees: CARLYLE M. DUNWAY, 

Jr. (Arthur J. Robb, of counsel), Clifton Budd & DeMaria, LLP, New York, New York. 

JUDGES: PRESENT: HON. GUIDO CALABRESI, 

HON. ROBERT D. SACK, Circuit Judges, HON. JED S. 

RAKOFF, District Judge. *

* The Honorable Jed S. Rakoff, United States 

District Judge for the Southern District of New 

York, sitting by designation. 

OPINION 

 [*18] SUMMARY ORDER 

Plaintiff Angella Timothy claims that her employer, 

Our Lady of Mercy Medical Center and Our Lady of 

Mercy Healthcare Systems, Inc. (collectively, "OLM"), 

discriminated against her on the basis of race and gender, 

and unlawfully retaliated against her after she complained of the alleged discrimination, in violation, variously, of Section 1981 of the Civil Rights Act of 1966, 

42 U.S.C. § 1981 [**2] ; Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e et seq.; the New York 

State Human Rights Law, Section 296 et seq. of the New 

York Executive Law; and Section 8-107 et seq. of the 

Administrative Code of the City of New York. The district court granted defendants' summary judgment motion 

dismissing all claims. See Timothy v. Our Lady of Mercy 

Med. Ctr., No. 03 Civ. 3556, 2005 U.S. Dist. LEXIS 

31560, 2005 WL 33112054 (S.D.N.Y. Dec. 6, 2005). We 

review the district court's grant of summary judgment de 

novo, drawing all inferences in favor of the nonmoving 

party. See Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d 

Cir. 2004); Weinstein v. Albright, 261 F.3d 127, 132 (2d 

Cir. 2001). We presume the parties' familiarity with the 

facts, [*19] the procedural history, and the scope of the 

issues presented on appeal, which we reference only as 

necessary to explain our decision. 

As to the claims of racial discrimination, we agree 

with the grant of summary judgment, substantially for 

the reasons stated by the district court. As to the claims 

of gender discrimination, there is no material evidence 

[**3] that Timothy was discriminated against simply 

because she was a woman. However, a claim of gender 

discrimination will also lie if a woman is discriminated 

against because, for example, she is a mother with small 

children. See, e.g., Back v. Hastings on Hudson Union 

Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004)

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233 Fed. Appx. 17, *; 2007 U.S. App. LEXIS 3980, ** 

("[T]he notions that mothers are insufficiently devoted to 

work, and that work and motherhood are incompatible, 

are properly considered to be, themselves, genderbased."). As the district court found, Timothy has made a 

sufficient prima facie showing of gender-plus discrimination to shift the burden to OLM to articulate a "legitimate, non-discriminatory reason for [each] adverse decision" of which Timothy complains. 2 Mario v. P & C 

Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002). 

2 As the District Court also correctly found, 

some of these decisions are time-barred for purposes of Timothy's Title VII claim. 

On summary judgment, OLM duly introduced [**4] 

evidence of a non-discriminatory reason for each of the 

adverse employment decisions. With respect to the reduction in Timothy's responsibilities following her return 

from her maternity leave, OLM introduced evidence that 

in October or November of 2000, Carolyn Goetze, 

OLM's Chief Operating Officer, in conjunction with 

OLM's Chief Information Officer, John Volanto, decided 

that upon Timothy's return from maternity leave, Timothy's responsibilities would be focused exclusively on 

Medical Records, one of several departments previously 

under her charge. Goetze and Volanto reasoned that 

"Timothy did not have the skill required to manage the 

scope of her [prior] responsibilities and [they were] 

hopeful that she would succeed if she concentrated her 

efforts in one area." In addition, OLM introduced evidence that during this period it was experiencing a severe 

financial crisis, including $40 million in losses between 

1999 and 2000, and that the Medical Records department 

had been experiencing significant problems that cost the 

hospital substantial sums of money by hampering its 

billing practices, warranting more focused attention by 

Timothy. 3

3 Thereafter, James Rutherford, the man hired 

five months later as OLM's Chief Executive Officer, reassigned Medical Records to the Finance 

Department. No competent evidence contradicts 

OLM's explanation that OLM believed "the finance department was [in the] position to oversee 

medical records due to the fact that the process of 

reimbursement and billing ends with the finance 

department." 

 [**5] With respect to Timothy's subsequent assignments to non-management positions and/or lesser 

responsibilities, OLM introduced evidence that numerous staff reductions occurred as a result of the hospital's 

financial crisis and that all administrators were asked to, 

and did, take on new, often "lesser" functions, as dictated 

by economic circumstances. Against this backdrop, 

Timothy became Nurse Recruiter, a position very important to OLM at the time because OLM was suffering a 

severe nursing shortage, which forced OLM to rely excessively on overtime pay to maintain its nursing staff. 

As Nurse Recruiter, Timothy was asked to help solve 

this problem, and her success led to her promotion to the 

newly-created position of Director of [*20] Nursing. As 

to the other positions for which others were hired, OLM 

also introduced evidence that these other persons were 

better qualified than Timothy was for these positions (see 

infra). 

Since such explanations are facially plausible and 

adequately supported by admissible evidence in the record, they entitle OLM "to summary judgment . . . unless 

the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. 

New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 

2000). [**6] Our careful review of the evidence offered 

by Timothy on summary judgment convinces us that, 

even when all reasonable inferences are taken in Timothy's favor, she has failed to adduce an adequate basis to 

infer that OLM's proffered explanations are pretextual 

and that the adverse employment actions at issue resulted 

from unlawful discrimination. Although Timothy argues 

that OLM's non-discriminatory explanations are inconsistent, we are not persuaded that a reasonable fact-finder 

could find any material inconsistency in the proffered 

explanations. Indeed, they share a consistent theme of a 

hospital facing the double bind of a severe labor shortage 

and desperate financial straits that is trying to deal with 

this terrible situation through reorganization and reassignments. 

Even assuming, however, that inconsistencies or 

other indicia of pretext are present, they would not here 

support, either alone or in conjunction with the other 

evidence, an inference that discrimination on the basis of 

motherhood was the real reason for any of these allegedly adverse actions. See generally Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc) ("[A] 

Title VII plaintiff [**7] may prevail only if an employer's proffered reasons are shown to be a pretext for 

discrimination, either because the pretext finding itself 

points to discrimination or because other evidence in the 

record points in that direction - or both."). The only verbal suggestion that anyone at OLM harbored any animus 

against women with small children consists of two 

statements by the new CEO, Rutherford - one made to 

Timothy and one to a coworker who also had small children, Barbara Oddo. In the first statement, Rutherford 

simply asked Timothy "how many kids [she] had and 

their ages and how old they were," a plainly innocuous 

statement. The statement to Oddo - in which Rutherford 

inquired whether Oddo "would be able to work [fulltime] having small children at home" - might in some 

contexts support an inference of discrimination, but no 

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233 Fed. Appx. 17, *; 2007 U.S. App. LEXIS 3980, ** 

such inference is reasonably drawn here given the undisputed evidence that Rutherford, who had already promoted Oddo to acting general counsel, increased Oddo's 

salary shortly after the time of the challenged remark and 

thereafter further promoted her to Vice President. Furthermore, it appears that it was Oddo herself who had 

first raised this concern, [**8] seeking initially a parttime position at OLM because she "had [her] children." 

As for Timothy's suggestion that an inference of discrimination can be drawn from the fact that OLM rejected her for positions that were given to unqualified 

individuals, none of whom were women with small children, plaintiff has failed to offer evidence that any 

women with children applied for any of these positions 

other than herself. As for Timothy herself, the evidence 

does not support her claim that she even applied for several of these positions. As to the positions for which 

Timothy did apply, the evidence does not support Timothy's claim that those who were chosen in preference to 

her were unqualified. For example, the woman who was 

chosen instead of Timothy for the position of Director of 

Clinical Services [*21] received an MBA in healthcare 

management, was for seven years a program coordinator 

for the Department of Pharmacology at Columbia, and 

served for five more years as a Divisional Administrator 

in Columbia's Neurology Department. If anything, this 

woman's formal credentials for the job of Director of 

Clinical Services were superior to Timothy's. More importantly, absent a striking disparity [**9] in such credentials, one should be very hesitant to draw any inference from a battle of credentials. See Byrnie v. Town of 

Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001)

(plaintiff seeking to prevent summary judgment on this 

basis must have "credentials . . . so superior . . . that 'no 

reasonable person, in the exercise of impartial judgment, 

could have chosen the candidate selected over the plaintiff for the job in question.'") (quoting Deines v. Tex. 

Dep't of Protective & Regulatory Servs., 164 F.3d 277, 

280-81 (5th Cir. 1999)). 

We have considered Timothy's other arguments for 

inferring discrimination and find them without merit. 

Finally, as to the retaliation claim, it is undisputed 

that, despite Timothy's complaint of discrimination, 

OLM gave Timothy a raise and a promotion. As to the 

"retaliatory acts" of which Timothy complains, they essentially consist of innocuous comments such as a criticism of Timothy as being unprepared for a meeting (for 

which she was, in fact, unprepared). On this evidence, 

we conclude that Timothy has failed to make a sufficient 

showing of actions by an employer that "'well might 

have dissuaded a reasonable [**10] worker from making 

or supporting a charge of discrimination,'"Kessler v. 

Westchester County Dep't of Soc. Svs., 461 F.3d 199 (2d 

Cir. 2006) (quoting Burlington Northern & Santa Fe Ry. 

v. White, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 

(2006)). 

UPON DUE CONSIDERATION, IT IS HEREBY 

ORDERED, ADJUDGED, AND DECREED that the 

judgment of the District Court is AFFIRMED. 

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