Phillips v. The City of New York et al
AMENDED MEMORANDUM AND ORDER granting in part and denying in part 95 Motion for Summary Judgment and resetting trial and certain pre-trial dates. Trial shall commence on 4/16/2018 in Courtroom 10 B South at 10:30 a.m. Jury selection shall be by a magistrate judge. A hearing on motions in limine and all other pre-trial issues shall be held on 4/9/2018, at 10:30 a.m. in Courtroom 10 B South. Pre-trial submissions are due by 4/2/2018. Ordered by Judge Jack B. Weinstein on 1/9/2018. (Barrett, C)
IN CLERKS OF,:ICE
US. D1STRJ COURT ED.N.y
* JAN 120l8 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LYNDELLE T. PHILLIPS, ESQ.,
THE CITY OF NEW YORK, COMMISSIONER
SALVATORE CASSANO and FIRST DEPUTY
COMMISSIONER DANIEL SHACKNAI,
JACK B. WEINSTEIN, Senior United States District Judge
Lyndelle T. Phillips
Gregory G. Smith
81 Prospect Street
Brooklyn, NY 11201
The City of New York
Lawrence J Profeta
NYC Corporation Counsel
100 Church Street
New York, NY 10007
Salvatore J. Cassano
First Deputy Commissioner
Introduction ........................................................................................... ...........................2
Summary Judgment............................................................................................... 7
Statute of Limitations Under 42 U.S.C. § 1983 and § 1981..................................8
C. Discriminatory Termination Under 42 U.S.C. § 1981 ..........................................9
Application of Law to Facts ........................................................................................... 11
Statute of Limitations for 42 U.S.C. § 1983 and § 1981 Claims ......................... 11
Plaintiff's 42 U.S.C. § 1981 Employment Discrimination Claim ....................... 11
1. Prima Facie Case of Discrimination ..................................................................... 11
2. Defendants' Non-Discriminatory Reasons for Terminating Plaintiff's
3. Discriminatory Pretext..........................................................................................13
Discrimination in the work place is often covert, and can only be revealed through a full
examination of the facts. Juries are unusually well suited to making this determination after
weighing the evidence and credibility of the parties. In this case, under the court's examination,
plaintiff's presentation of herself at the hearing on defendant's motion for summary judgement
indicates that a jury could find that she did not fail in administering her duties, and that racial
discrimination was the reason for her termination.
Lyndelle T. Phillips is the former head of the New York City Fire Department's
("FDNY") Equal Employment Opportunity ("EEO") Office. Alleging that she was demoted and
then fired because of her race, she brings suit against the City of New York, the Fire
Commissioner, and the First Deputy Commissioner.
Defendants move for summary judgement on all claims. The motion is granted on statute
of limitations grounds with respect to the Section 1983 claims.
Based on the paper submissions and arguments by both parties, the court was prepared to
grant defendants' motion on the Section 1981 claim. After observing plaintiff during her
extended examination by the court, defendants' motion for summary judgment on plaintiff's
Section 1981 claim is denied. A jury could find her to be a credible witness who took her job at
the FDNY seriously and performed satisfactorily. Discrimination, and not poor job performance,
a jury could conclude, was the reason for her termination by the FDNY.
Plaintiff, an African-American female, was appointed on June 5, 2006 Assistant
Commissioner for EEO at the FDNY. Defendant Rule 56.1 Statement ("Def. 56.1 Stm't"), ECF
No. 98 ¶ 1. She did not have a permanent civil service title, but was placed in a provisional
capacity. Id. ¶ 54. For the first three years of her tenure (2006-2009), she reported to FDNY
Commissioner Scoppetta, and, for the final year (2009-2010), to FDNY Commissioner Cassano.
Plaintiff Response to Def. R. 56.1. Stm't ("P1. Resp. to Def. R. 56.1. Stm't"), ECF No. 102 ¶ 54.
She was responsible for managing the operations and administration of the FDNY EEO
Office, including managing staff, conducting training, establishing policy manuals, and
responding to reporting requirements. Id. ¶ 2. In December 2009, the Deputy Commissioner for
Citywide EEO for the New York City Department of Citywide Administrative Services
("DCAS") notified the FDNY Deputy Commissioner of Legal Affairs that she was concerned
about an excessive backlog of cases that had been pending for more than 90 days in the FDNY
EEO Office. Id. ¶J 3-4. The FDNY EEO Office had the largest backlog of EEO cases of any
City agency. Id.; see also P1. Resp. to Def. R. 56.1. Stm't ¶ 8 (explaining that plaintiff had
inherited part of the backlog from her predecessor). After discussing the matter with
Commissioner Scoppetta, in 2010 plaintiff was able to substantially reduce aged cases, from 247
to some 50. Def. 56.1 Stm't ¶J 7-8.
In the summer of 2010, two attorney investigators in the FDNY EEO office complained
of discrimination and retaliation by plaintiff. Id. ¶ 9. An EEO Officer for the New York City
Law Department ("Law Department Officer") investigated, finding that there was no probable
cause to believe that plaintiff had discriminated against the complainants. Id. ¶ 12. The
"Corporation Counsel Report" written by the Law Department Officer concluded, however, that
plaintiff had failed to effectively respond to complaints brought by other staff members against
plaintiff's Deputy Director, causing "a rift among the staff, the loss of trust in the leadership of
plaintiff and [her Deputy Director], and a resulting negative impact on [FDNY] EEO Office
operations and morale." Id. ¶11 12-18.
In early 2011, Commissioner Cassano met with New York City Corporation Counsel
Cardozo ("Cardozo") to discuss the Corporation Counsel Report. Id. ¶ 19. During the meeting,
Cardozo expressed "deep concerns about the functioning of the FDNY's EEO Office and the
ineffectiveness of its current management," as well as a belief that "changes needed to be made
in the management of the EEO unit." Id. Commissioner Cassano states that based on the
Corporation Counsel Report; discord amongst the FDNY EEO staff evidenced in multiple
complaints and the report itself, and a "lack of managerial effectiveness as demonstrated by,
among other things, the significant backlog of aged cases" plaintiff was replaced. Id. ¶ 21.
On March 24, 2011, Commissioner Cassano informed plaintiff that she would be
replaced as Assistant Commissioner, but would be afforded time to complete assignments and
pursue other employment; a vacancy notice was posted for the position of Assistant
Commissioner for FDNY EEO on the same day. Id. ¶J 22-23.
On July 20, 2011, Commissioner Cassano selected Margo Ferrandino ("Ferrandino"), an
African-American female, to fill the Assistant Commissioner for EEO position. Id. ¶ 26. When
Ferrandino assumed her role as Assistant Commissioner of EEO on October 21, 2011, plaintiff
was reassigned to the FDNY Bureau of Legal Affairs. Id. ¶ 33. She continued to receive her full
former salary and benefits. Id.
Plaintiff contends that she was transferred to the FDNY Bureau of Legal Affairs and
permanently reassigned as a staff attorney to work on general litigation matters. P1. Resp. to Def.
R. 56.1. Stm't ¶ 33. Defendants claim that this reassignment was temporary. Def. 56.1. Stm't ¶
In October 2011, plaintiff, through her counsel, corresponded with the New York City
Law Department in an effort to secure a position with another City agency. Def. 56.1 Stm't ¶J
34-37. During the approximate one year in which she was assigned to the FDNY Bureau of
Legal Affairs, plaintiff was interviewed for the Directorship of Equal Opportunity at the Parks
Department but did not obtain the position. Id. Plaintiff's counsel and the Law Department also
discussed the possibility of her moving to the Department of Education. id. On March 26, 2012,
when it became clear that plaintiff did not intend to resign from her position at the FDNY Bureau
of Legal Affairs, the Deputy Commissioner of Administration Douglas White and the Assistant
Commissioner of Human Resources Donay Queenan met with plaintiff to inform her that her
employment with the FDNY would be terminated effective April 6, 2012. Id. ¶ 38.
Plaintiff describes her own performance as Assistant Commissioner of the EEO as
"competent," noting that she never received a performance evaluation during her six years of
employment. P1. Resp. to Def. R. 56.1. Stm't ¶ 2; see also Affidavit of John Coombs, ECF No.
106 ¶ 3 (describing plaintiff as "competent, organized and a good manager").
During her tenure as Assistant Commissioner, the FDNY was involved in an extensive
Title VII litigation (" Vulcans") which found the FDNY's hiring practices for firefighters to be
discriminatory. United States v. City of New York, 683 F. Supp. 2d 225, 233 (E.D.N.Y.
2010), vacated, 717 F.3d 72 (2d Cir. 2013). While the district court's holding that the Fire
Department's use of written examinations constituted a pattern and practice of intentional
discrimination was eventually overturned by the Court of Appeals for the Second Circuit (see
717 F.3d at 77), the pervasive atmosphere of discriminatory animus described during the Vulcans
litigation, confirmed by the extensive factual conclusions of the district court, loom over
plaintiff's allegations. See, e.g., 683 F. Supp. 2d at 261 ("The City's willingness to treat black
applicants differently—to tolerate adverse outcomes against one race that it would not tolerate
against another—is, if not the textbook definition of discriminatory intent, its nearly
indistinguishable synonym."). Vulcans attracted much media attention. See, e.g., Andy
Newman, Justice Dept. Sues New York City, Citing Bias in Hiring Firefighters, N.Y. Times,
May 22, 2007 Bi.
Plaintiff testified in the Vulcans case on August 8, 2011, revealing that the FDNY EEO
Office had had a reduction in the number of attorneys on its staff. Def. 56.1 Stm't ¶J 44-45.
The court in Vulcans issued a Remedial Order on December 8, 2011, requiring, among other
things, "the City to retain an independent EEO consultant, who would submit a report on the
EEO compliance activities, identify all tasks the Fire Department EEO Office ought to be
performing, recommend a detailed compliance program to be carried out by the Fire Department
EEO Office, and recommend process, organizational and policy changes that need to take place
to ensure compliance with applicable Federal, State and City EEO laws and policies." Id. ¶ 46.
Following this remedial order, Professor Merrick T. Rossein was retained by the City as
an independent FDNY EEO consultant. Id. ¶ 47. On March 23, 2012—three days prior to
plaintiff's notification that her employment would be terminated—plaintiff met with Professor
Rossein, at his request. Id. ¶ 48.
Plaintiff filed this lawsuit on April 2, 2015 claiming violations of 42 U.S.0 § 1983 and 42
U.S.0 § 1981, alleging First Amendment retaliation, violations of the Fourteenth Amendment,
and discharge based on race.
A. Summary Judgment
Summary judgement is appropriate when, "after construing the evidence in the light most
favorable to the nonmoving party and drawing all reasonable inferences in its favor, there is no
genuine issue as to any material fact." Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009). The
non-moving party must provide "specific facts showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation omitted).
Summary disposition—at both the motion to dismiss and summary judgment stages—has
become increasingly common. Cf Alexander A. Reinert, Measuring the Impact of Plausibility
Pleading, 101 Va. L. Rev. 2117, 2143 (2015) (find a 15% increase in the grant rate of motions to
dismiss from 2006 to 2010—the seminal cases Bell All. Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009) were decided respectively in 2007 and 2009). The
Supreme Court of the United States has directed district courts to actively engage with cases at
early procedural stages using their "judicial experience and common sense." Jqbal, 556 U.S. at
679; cf. Fed. R. Civ. P. 1 ("[The Federal Rules of Civil Procedure] should be construed,
administered, and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.").
It is this court's practice—and has been for some years—to provide parties an
opportunity to be heard early in a litigation. See Arthur R. Miller, Simplified Pleading,
Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal
Procedure, 88 N.Y.U. L. Rev. 286, 344 n.214 (2013) (noting this court's approach of meeting
with the parties before ruling on a motion to dismiss in order to get "a sense of the litigation").
When a dispositive motion is filed, the court requires the parties and their attorneys to appear for
a hearing. E.g., Oct. 27, 2017 Order, ECF No. 118 ("Plaintiff and a person with knowledge of
the facts from the Defendants shall be present in person at the hearing."). These hearings, a
mixture of attorney argument and witness testimony, allow the court to assess the case early in
the litigation and provides litigants with a chance to articulate their position in the lawsuit in a
way relying on the papers and arguments of counsel alone cannot achieve. This also reassures
the parties that it is the court itself that is deciding the case after listening to them.
B. Statute of Limitations Under 42 U.S.C. § 1983 and § 1981
The three-year statute of limitations of New York CPLR 2 14(5), which governs general
personal injury actions, is applicable to Section 1983 cases filed in New York. Owens v. Okure,
488 U.S. 235, 251 (1989). Although the State statute of limitations applies, the issue of when the
"cause of action accrued remains a question of federal law." Leonhard v. United States, 633
F.2d 599, 613 (2d Cir. 1980). Claims under Section 1981, unlike Section 1983 claims, are
governed by the federal catchall four-year statute of limitations of 28 U.S.C. § 1658. See Jones
v. R. R. Donnelley & Sons Co., 541 U. S. 369, 371 (2004).
In employment discrimination cases, a federal claim accrues "the date the allegedly
discriminatory decision was made and communicated to the employee." Economu v. BorgWarner Corp., 829 F.2d 311, 315 (2d Cir. 1987) (quoting Delaware State College v. Ricks, 449
U.S. 250, 258) (internal quotation and alterations omitted); Flaherty v. Metromail Corp., 235
F.3d 133, 137-38 (2d Cir. 2000) ("[T]he limitations period begins to run on the date that the
employer gives definite notice of [the] decision to [terminate] the employee."). This principle,
originally developed in cases where employees file claims under Title VII, applies in cases under
Section 1983. See Delaney v. Farley, 623 F. App'x 14, 16 (2d Cir. 2015) (holding that the
statute of limitations on the plaintiffs Section 1983 employment discrimination claim began to
run when he received notice of his termination).
C. Discriminatory Termination Under 42 U.S.C. § 1981
Enacted as part of the Civil Rights Act of 1866, 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a).
It is settled in the Second Circuit that at-will employment is a "contractual relationship
within the meaning of § 1981." Lauture v. Int'l Bus. Machines Corp., 216 F.3d 258, 261 (2d Cir.
2000). Under Section 1981, a plaintiff may sue for discriminatory discharge. Id. at 264. "The
substantive standards for employment discrimination claims under §§ 1981 and 1983 mirror
those for claims under Title VII." Morales v. Rooney, 509 F. App'x 9, 10 (2d Cir. 2013).
The McDonnell Douglas analytical framework first developed in Title VII cases
applies. See Littlejohn v. City of New York,
795 F.3d 297, 312 (2d Cir. 2015) ("[Plaintiff's]
disparate treatment claims under Title VII, § 1981, and § 1983 are subject to the burden-shifting
evidentiary framework set forth in McDonnell Douglas.").
A plaintiff must first establish a prima facie case of discrimination by showing: "(1) she
is a member of a protected class, (2) she was qualified for her position, (3) she suffered an
adverse employment action, and (4) the action occurred under circumstances giving rise to an
inference of discrimination." Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir.
1999). This prima facie case creates a presumption of discrimination, which is rebuttable if the
defendant can articulate a legitimate, nondiscriminatory reason for the unfavorable employment
decision. Mario v. P & C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002). If the
defendant can proffer this reason, to survive summary judgment the plaintiff must "point to
evidence that reasonably supports a finding of prohibited discrimination." Id. (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)).
When there is no direct evidence of discriminatory animus, one method a plaintiff may
use in establishing an inference of discrimination is to point to comparable employees of a
different race who were treated differently. See McGuinness v. Lincoln Hall, 263 F.3d 49, 53
(2d Cir. 2001). An inference of discriminatory intent can also be drawn in several other ways
including, "the employer's continuing, after discharging the plaintiff, to seek applicants from
persons of the plaintiff's qualifications to fill that position; or the employer's criticism of the
plaintiff's performance in ethnically degrading terms; or its invidious comments about others in
the employee's protected group; or the more favorable treatment of employees not in the
protected group; or the sequence of events leading to the plaintiff's discharge." Abdu-Brisson v.
Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (internal citation omitted).
Application of Law to Facts
A. Statute of Limitations for 42 U.S.C. § 1983 and § 1981 claims
Plaintiff brings two separate causes of action under 42 U.S.C. § 1983: (1) violation of
her First Amendment rights because she was terminated (in retaliation) for speech critical of the
FDNY and (2) a violation of her 14 th Amendment rights because she was allegedly fired because
of her race. See Plaintiff Opposition to Motion for Summary Judgment ("P1. Opp'n"), ECF No.
108 at 1. Plaintiff also brings a cause of action under 42 U.S.C. § 1981, arguing that her
Constitutional "right to make and enforce contracts" was violated when she was terminated
because of her race. See id. at 7-8.
The three-year statute of limitations of New York CPLR 2 14(5) applies to all Section
1983 actions filed in New York, with the claim accruing on the date the discriminatory decision
was communicated to the employee. See Owens, 488 U.S. at 251; Economu, 829 F.2d at 315.
Here, both of plaintiffs Section 1983 causes of action are based on her March 26, 2012 notice of
termination. Time to file suit expired on March 26, 2015. See 56.1 Stm't ¶ 42. Because
plaintiff filed the current action on April 2, 2015, her Section 1983 claims are untimely. See
Complaint, ECF No. 1.
Plaintiff's Section 1981 discriminatory discharge claim is governed by the federal four-year
statute of limitations, and is also based on the March 26, 2012 notice of termination. It is
actionable. See Jones, 541 U.S. at 371.
B. Plaintiff's 42 U.S.C. § 1981 Employment Discrimination Claim
1. Prima Facie Case of Discrimination
To establish a prima facie case of Section 1981 employment discrimination, a plaintiff
must prove that "(1) she is a member of a protected class, (2) she was qualified for her position,
(3) she suffered an adverse employment action, and (4) the action occurred under circumstances
giving rise to an inference of discrimination." Norville, 196 F.3d 89, 95. Here, the first three
elements do not appear to be in dispute and the fourth is discussed below. See Infra Section
2. Defendants' Non-Discriminatory Reasons for Terminating Plaintiff's
Once a plaintiff has established a prima facie case, the defendant must articulate a
legitimate, nondiscriminatory reason for the unfavorable employment decision. Mario, 313 F.3d
758, 767. In response to plaintiff's argument that she was discriminated against and terminated
because of her race, defendants first note that Ferrandino, plaintiffs replacement, is an African
American female attorney. See Defendant Memorandum in Support of Motion for Summary
Judgment ("Def. Mem."), ECF No. 99 at 8.
Defendants assert that the FDNY had ample non-discriminatory reasons for terminating
plaintiff's employment, given her consistent struggle with management during her tenure as
Assistant Commissioner. In particular, defendants point to the 2009 DCAS notification of a
significant case backlog, the two discrimination complaints lodged against plaintiff by attorneys
in the EEO office in 2010, and the findings of the "Corporation Counsel Report" written by the
Law Department Office. See id. at 8-10.
After the decision to replace plaintiff, she was reassigned to the FDNY Legal Affairs,
where she continued to receive her full salary and benefits and the New York City Law
Department tried to find another EEO position for plaintiff. See id. When it became clear that
she did not intend to resign, the FDNY claims it fired her for reasons of inadequate performance.
See id. at 11.
3. Discriminatory Pretext
Once a non-discriminatory reason is articulated, the viability of plaintiff's Section 1981
claim rises of falls on her ability under the third step of the McDonald Douglass framework, to
"point to evidence that reasonably supports a finding of prohibited discrimination." Mario v. P
& C Food Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002).
Plaintiff devotes a significant portion of her written submissions to an attempt to establish
an inference of discrimination by pointing to comparable employees of a different race who were
treated differently. See P1. Opp'n at 9-14. The court was prepared to rule—based on the parties'
briefs—that plaintiff had failed to establish an inference of discrimination.
There are factual dissimilarities between plaintiff and the comparators to which she
points--different job titles, different direct supervisors, and a general lack of evidence that
plaintiff's own performance evaluation and discipline standards were substantially similar to
those of her comparators. For a person in a senior management position proving discrimination
by using comparators is difficult. Managers often do not receive formal evaluations and are the
only person with their precise job title. See generally Suzanne B. Goldberg, Discrimination by
Comparison, 120 Yale L.J. 728 (2011) (noting the general difficulties with the comparator
approach to discrimination and in particular the difficulties for "uniquely situated employees").
The December 18, 2017 hearing changed the court's view of the case. Plaintiff was
subject to thorough examination by the court. It was clear that a jury could find her a credible
witness with a legitimate claim of discrimination. She cogently and persuasively stated several
reasons—in addition to the differing treatment of comparators—why a jury could find that there
was race based discrimination. She was a thoughtful person, who appears to have taken her job
at the FDNY EEO office seriously. It would be hard for a jury to believe that this intelligent,
well informed person managed her important office in a lackadaisical manner.
The timing of plaintiff's termination from the FDNY on March 26, 2012—three days
after she met with consultant Professor Rossein to discuss race discrimination at the FDNY—is,
a jury could find, not mere coincidence. See December 18, 2017 Hearing Transcript ("Hr'g Tr.")
13:17-22. After plaintiff disclosed to Professor Rossein that race discrimination in the FDNY
was broader than revealed in the Vulcans litigation, she was terminated. Hr'g Tr. 13:23-25.
There was, as noted in the Vulcans findings of fact, an atmosphere of racial tension and
animus within the FDNY. Plaintiff's status as a black female Assistant Commissioner at the
FDNY, and the particular scrutiny with which the FDNY approached plaintiff's alleged
mismanagement, raises a genuine issue of triable fact as to whether the defendants terminated
plaintiff because of her race. See Hr'g Tr. 26:6-10 ("The City Law Department investigated.
They said there was no probable cause to believe that you [were] discriminated [against] in this
case; however, they went on to access management issues for me, but not for Kay Ellis, not for
Rob Wallace, not for Michele Maglione.").
The evidence is sufficient to raise a genuine triable issue for trial. A jury could conclude
that the plaintiff's claim of discrimination is credible, and that the defendants reason for her
termination was pretextual.
Defendants' motion for summary judgment is granted on plaintiff's Section 1983
claim on the basis of the statute of limitations. Defendants' motion for summary judgment on
plaintiff's Section 1981 claim for discriminatory termination is denied.
Trial shall commence on April 16, 2018 in Courtroom 10 B South at 10:30 a.m. Jury
selection shall be by a magistrate judge.
A hearing on motions in limine and all other pre-trial issues, including whether the issues
should be narrowed for trial, shall be held on April 9, 2018, at 10:30 a.m. in Courtroom 10 B
South. Plaintiff and individual defendants shall be present with counsel.
The parties shall exchange and file with the court by April 2, 2018, the following: (1)
motions in limine; (2) lists of pre-marked exhibits proposed for use at the trial, together with
copies of the exhibits, and any stipulations regarding admissibility and authenticity; (3) lists of
proposed witnesses together with brief summaries of their proposed testimony; (4) stipulations
with respect to undisputed facts; and (5) a full proposed charge to the jury with findings of fact.
The parties shall agree on a briefing schedule. If they cannot agree, all scheduling issues
are respectfully referred to the magistrate judge.
J4 B. Weinstein
S'enior United States District Judge
Date: January 9, 201 8
Brooklyn, New York
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