Pinede v. NYC Dept. of Environmental Protection
MEMORANDUM & ORDER: Defendants' 34 Motion for Summary Judgment is granted. The Clerk of Court is directed to enter Judgment in favor of defendants and close the case. So Ordered by Chief Judge Carol Bagley Amon on 7/10/2015. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
12-CV-6344 (CBA) (LB)
-againstNYC DEPARTMENT OF
ENVIRONMENTAL PROTECTION and
THE CITY OF NEW YORK,
AMON, Chief United States District Judge:
Plaintiff Nicole Pinede brings this action against the New York City Department of
Environmental Protection ("DEP") and the City of New York ("City") pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seg., 1 and Section 1983 2 of Title 42 based on
purported violations of the Fourteenth Amendment's Equal Protection Clause. 3 Pinede, a Haitian
woman, generally alleges that during her employment as a DEP chemist she experienced
disparate treatment and a hostile work environment as a result of her national origin. She further
claims that she faced retaliation when she complained about her supervisor's conduct.
Defendants have moved for summary judgment on all claims. For the reasons stated below,
defendants' motion is granted.
Title VII prohibits an employer from discriminating against any individual with respect to "compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin."
42 U.S.C. § 2000e-2(a}(l).
Section 1983 provides an express cause of action against "[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws." 42 U.S. C. § 1983.
The Fourteenth Amendment's Equal Protection Clause provides that: "No State shall ... deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV
Pinede was born in Port-au-Prince, Haiti. (Defs. Local Civ. R. 56.1 Statement of
Undisputed Material Facts ("Defs. 56.1 ")ii 2.) She immigrated to the United States in 1984 and
became a naturalized citizen in 2000. (Pinede Dep. at 10: 10-17.)
Initial Employment at DEP
In June of 2004, Pinede was hired by DEP to work as a Lab Microbiologist in the Wards
Island Laboratory. (Defs. 56.1ii3; Pl. Local Civ. R. 56.1 Statement ofUndisputed Material
Facts ("Pl. 56.1 ") ii 2.) The job duties of a Lab Microbiologist included preparing chemicals,
taking the pH of wastewater samples and receiving samples for testing. (Pinede Dep. at 21: 1419.) During her time as a Lab Microbiologist, Pinede also performed tasks normally entrusted to
an Assistant Chemist and, as a result, subsequently filed a grievance seeking a promotion to that
position. (Id. at 23:20-25.)
In February 2008, DEP responded to Pinede' s grievance and promoted her to a
provisional (non-Civil Service) position as Assistant Chemist based on her proficiency in a
number of the required tasks. (Id. at 23:20-24: 10; Defs. 56.1 ii 4; Pl. 56.1ii3; Pl. Ex. P.) As an
Assistant Chemist, Pinede was tasked with conducting various wastewater tests-including:
The facts recounted below derive from the parties' submissions pursuant to Local Rule 56.1 as well as the Court's
independent review of the record. As defendants correctly note, Pinede improperly failed to respond to their Rule
56.1 statement as required by Local Civil Rule 56. l(b}. Accordingly, unless unsupported by the record or squarely
contradicted by Pinede's own statement of facts, the Court considers the facts presented by defendants as admitted.
Local Civ. R. 56. l(c}; see Holtz v. Rockefeller & Co .. 258 F.3d 62, 74 (2d Cir. 2001) (district courts may not
consider as true factual assertions in an undisputed Local Rule 56.1 statement that are unsupported by the record).
The Court further notes that many of the assertions Pinede makes in her own Local Rule 56.1 statement either lack
citations to the record, are unsupported by the materials cited or cite exhibits that simply were not provided either to
the Court or to defendants. (See. e.g. Opp. at 10 (citing non-existent affidavit ofManoj Bhatt); Pl 56.1ii9 (citing
non-existent exhibits FF and GG}.) Accordingly the Court disregards those assertions. See Holtz. 258 F.3d at 73-74
(explaining that "district courts in the Southern and Eastern Districts of New York have interpreted current Local
Rule 56.1 to provide that where there are no citations or where the cited materials do not support the factual
assertions in the Statements, the Court is free to disregard the assertion") (alteration in original) (citations and
internal quotation marks omitted). Moreover, since at summary judgment the non-movant may not merely "rest on
allegations in the pleadings," Salahuddin v. Goord. 467 F.3d 263, 273 (2d Cir. 2006), the Court gives no weight to
Pinede's numerous citations to the Complaint. (See. e.g., Wooten Deel. ilil 2, 10, 13-14; Opp. at 5, 9-10.)
suspended solids tests, total kjeldahl nitrogen tests, conductivity tests and pH tests-and then
preparing reports that were used by sewage engineers to adjust wastewater treatment methods.
(Pinede Dep. at 31:10-35:10, 37:10-38:12.)
Newton Creek Laboratory
Following her promotion, Pinede requested and received a transfer to the Owl's Head
Wastewater Facility. (Defs. 56.1
ii 5.) When Owl's Head was closed in 2009, its staff, including
Pinede, were reassigned to the Newton Creek Laboratory. (Id.
At Newton Creek, the reports generated by the chemists were approved by their
supervisors before being passed along to the quality control department ("QC"). (Pinede Dep. at
42: 10-19.) The chemists' supervisors reviewed the reports to determine if the results were
satisfactory, whereas QC primarily focused on data integrity and ensuring that the reports met
the requirements set by the federal Environmental Protection Agency. (Id. at 63:18-64:24;
Homer-Gray Dep. at 12:4-17.) Ifa chemist's report was found to be unsatisfactory for some
reason, either the relevant supervisor or the QC reviewer would inform the chemist that the
sample needed to be repeated. (Pinede Dep. at 42:20-43: 16.)
Adeba Negatu ("Negatu"), an Ethiopian woman, became the acting head of Newton
Creek Laboratory in 2010 when her predecessor retired. 5 (Id. at 27:9-29:2, 30: 14-31:2.) In that
position she supervised all chemists working in the laboratory. Negatu reported to the Division
Chief of Laboratory Services, which, during the bulk of the relevant period, was Peter
Williamsen. (Id. at 29:3-8, 38:13-24.) Williamsen is a white American. (Id. at 43:23-25.)
Sukhadev Aggarwal ("Aggarwal"), an Indian man, acted as the sole assistant laboratory
director until May 2012 when Marina Kelman ("Kelman"), a Russian woman, was promoted to
Although Pinede testified that Negatu is Ethiopian, her opposition papers curiously claim that she is Egyptian.
(Pl. 56.1i)30.) However, the Court need not address that contradiction since it does not affect Pinede's claim of
discrimination based on her own Haitian origin.
assistant director. (Aggarwal Dep. at 7: 14-8: 18; Pinede Dep. at 47:22-23, 57:25-58: I.) As
assistant director, Aggarwal, and later Kelman, reported to Negatu and were charged with
directly supervising the chemists' work. (Negatu Dep. at 7: 11-8:3.) In his role as Pinede's
primary supervisor, Aggarwal frequently reviewed her work, which he characterized as being
lower quality than the work produced by other chemists. (Aggarwal Dep. at 6: 18-7: 1O, 9:2314:8.) Pinede's work was occasionally also reviewed by Negatu prior to being sent to QC for a
data integrity check. (Negatu Dep. at 7: 11-8:3; Homer-Gray Dep. at 7:8-24, 11: 12-12: 17.)
During the relevant period, DEP employed a number of other scientists at the Newton
Creek site as Associate Chemists, Assistant Chemists and Lab Associates. 6 Negatu and her
assistant directors supervised six Associate Chemists at Newton Creek: Manoj Bhatt, 7 George
Hennedy, Carlos Quijije, 9 Usha Samuel, 10 Lymanne Sica 11 and Rachel Torchenaud. 12 In
addition to Pinede, they also oversaw two other Assistant Chemists at the facility-Myo Aung 13
Employees in each of those titles performed chemical tests in the laboratory, but the positions differed based on the
ability of the employees to use laboratory instruments. (Pinede Dep. at 41: 18-42:2, 46: 1-2, 52:5-53:4.) Whereas
Associate Chemists were permitted to use all instruments, Assistant Chemists were limited to certain ones and Lab
Associates could not use any instruments. (.MJ DEP eliminated the Assistant Chemist position in 2012, subsequent
to Pinede's demotion. ffiL. at 51: 16-52:4.)
Bhatt, an Indian man, joined Newton Creek as an Associate Chemist in 2009. (Pinede Dep. at 48: 17-49: 1.) In
October of2012, he transferred to the Staten Island laboratory.
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