Chukwuka v. City of New York et al
Filing
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OPINION. For the reasons in this opinion, defendants' motion for partial summary judgment on the Title VII claim is granted. Because I have granted a supplemental motion for summary judgment on the remaining claims, summary judgment is granted d ismissing the entire complaint. The Clerk of the Court is directed to close the case. Re: 6 MOTION for Summary Judgment filed by New York City Human Resources Administration, Richard Beck, Sherry Berkowitz, City of New York, 16 SUPPLEMENTAL MOTION for Summary Judgment filed by New York City Human Resources Administration, Richard Beck, Sherry Berkowitz, City of New York. (Signed by Judge Miriam Goldman Cedarbaum on 6/23/11) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DAVIDSON CHUKWUKA,
Plaintiff,
OPINION
-against05 Civ. 4331 (MGC)
CITY OF NEW YORK, NEW YORK CITY
HUMAN RESOURCES ADMINISTRATION,
RICHARD BECK, DIRECTOR OF BUREAU
OF RECONCILIATION AND CONTROL, NEW
YORK CITY HUMAN RESOURCES
ADMINISTRATION FINANCE OFFICE, and
SHERRY BERKOWITZ,
Defendants.
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APPEARANCES:
NNEBE & ASSOCIATES, P.C.
Attorneys for Plaintiff
472 Union Avenue, Suite 1000
Williamsburg, New York 11211
By:
Okechukwu Valentine Nnebe, Esq.
CORPORATION COUNSEL OF THE CITY OF NEW YORK
Attorneys for Defendants
100 Church Street, Room 2-171
New York, New York 10007
By:
Isaac Klepfish, Esq.
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Cedarbaum, J.
Davidson Chukwuka sues the City of New York, the New York
City Human Resources Administration, Richard Beck, and Sherry
Berkowitz for employment discrimination under Title VII of the
Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C.
' 2000e et seq., employment fraud, constructive discharge, and
interference with retirement benefits under the Employment
Retirement Income Security Act (“ERISA”), as amended, 29 U.S.C. '
1001 et seq.
Defendants move for partial summary judgment on
the Title VII claim on the ground that Chukwuka cannot establish
a prima facie case of discrimination.
Defendants also filed a
supplemental motion for summary judgment on the remaining
claims.
Today, I granted the supplemental motion for summary
judgment in open court.
For the reasons that follow,
defendants’ motion on the Title VII claim is granted.
BACKGROUND
Chukwuka is a black man of Nigerian national origin.
He
started working for the New York City Human Resources
Administration (“HRA”) in September 1990 as a provisional case
manager.
After taking a series of civil service examinations,
he became a permanent Staff Analyst II in the Bureau of
Reconciliation and Control (“BORAC”), one of the divisions of
the HRA.
Defendant Sherry Berkowitz was the Assistant Deputy
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Commissioner of the HRA Finance Office and defendant Richard
Beck was the Director of BORAC.
In the complaint, Chukwuka alleges eight instances of
discrimination on the basis of national origin, citizenship,
race, and color.
are as follows.
For each alleged instance, the material facts
The facts are undisputed except where noted.
First, in May 2002, Chukwuka requested two and a half weeks
of leave to transport his brother’s body to Nigeria and attend
the funeral there.
Beck approved the leave, but he required
Chukwuka to finish all of the work assigned to him before he
left.
Second, in September 2002, Edith Barrow, Chukwuka’s thendirect supervisor, evaluated Chukwuka for the period of October
1, 2001, through September 30, 2002.
Barrow gave Chukwuka a
rating of “outstanding” for that period.
Once she completed the
evaluation, she showed it to Chukwuka, and both signed it.
In
April 2003, Beck modified the evaluation and changed several
ratings from “outstanding” to “very good.”
He did not change
the section of the evaluation entitled “Justification for
overall rating.”
The parties dispute whether Beck had the authority to
change Barrow’s ratings.
In her deposition, Berkowitz testified
that the evaluation policy required that an employee’s immediate
supervisor write the employee’s evaluation and then discuss that
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evaluation with his own supervisor.
The second-level supervisor
could change the evaluation if he did not agree with the
immediate supervisor’s ratings or comments.
Once the second-
level supervisor approved the evaluation, it was shared with the
employee.
Berkowitz further testified that if the immediate
supervisor had not consulted the second-level supervisor, as
required by this policy, then the second-level supervisor could
change the evaluation even after the employee saw it.
to Chukwuka, however, this policy did not exist.
According
He points to
the deposition testimony of Michelle Foulks, the commissioner of
the unit.
Foulks agreed with Berkowitz that an immediate
supervisor reviewed the evaluation of an employee with a secondlevel supervisor, but she testified that it was in the province
of an immediate supervisor to evaluate an employee, irrespective
of the position of the second-level supervisor.
Third, in February 2003, Beck had a meeting with Chukwuka
in which Beck accused Chukwuka of making a work-related mistake.
Beck threatened to demote Chukwuka, yelled several obscenities
at him, and called him “you foreigner.”
Later Beck discovered
that people in a different department were responsible for the
mistake.
According to Chukwuka, those people were Caucasian and
Beck never yelled at them after he discovered that they had made
the mistake.
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Fourth, in April 2003, Beck directed Robert Martin,
Chukwuka’s immediate supervisor at the time, to carefully
supervise Chukwuka.
To Chukwuka’s knowledge, Martin never gave
him a negative evaluation as a result of Beck’s directive.
Fifth, on September 2, 2003, Chukwuka sent an email to his
immediate supervisors, Angel Brito and Martin, advising them
that he would be taking his annual leave from October 14, 2003
to November 10, 2003.
Later that day, Martin emailed Brito,
copying Beck, and wrote that before Chukwuka’s vacation request
could be approved, they had to discuss with Chukwuka whether he
could finish the work assigned to him before he left and whether
he would be back in time to cover his work for the next month.
Martin also wrote that after this discussion with Chukwuka, they
should get feedback from Beck regarding the request.
Beck then
forwarded the request to Berkowitz and asked her how she wanted
to handle it given her past instructions not to approve
vacations longer than fifteen days.
Berkowitz responded that
she did not want employees out of the office for longer than
fifteen days, and Beck informed Chukwuka, Brito, and Martin of
Berkowitz’s response.
On September 3, 2003, Chukwuka emailed
Brito, Martin, and Beck, and wrote that he did not know about
this policy.
Beck responded that Berkowitz had discussed the
policy with the BORAC staff several months before Chukwuka had
made his request.
Berkowitz herself then emailed Chukwuka and
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wrote that Beck was enforcing her policy and that she had told
Chukwuka about the policy when she had met with the BORAC staff
in the spring.
She also wrote that it would affect Chukwuka’s
unit if he were gone for a month.
Chukwuka changed his flight
to shorten his vacation, although he could not recall how much
the fee was to do this.
The parties dispute the existence of the vacation policy
and how defendants enforced it.
Chukwuka asserts that he was
never aware of the vacation policy and that it was never
distributed in writing.
Further, he states that Martin was
never aware of the policy either until Chukwuka made this
request.
He also asserts that a twenty-day vacation was
approved for Grace Taylor, another employee in the unit.
Berkowitz, however, testified in her deposition that she
established such a policy in the spring of 2003 and that she had
established a similar policy in every unit she had managed.
Also, Martin testified in his deposition that he recalled
hearing about the vacation policy at some point before Chukwuka
made his request.
And Taylor, who is African-American, was out
of the office for a combination of annual leave, sick leave, and
work training.
The work training did not count toward annual
leave, and therefore she was not out on annual leave for more
than ten consecutive days.
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Sixth, on July 2, 2004, Beck sent Chukwuka a memorandum in
which he noted that Chukwuka had taken a two-hour lunch that day
and that, as a result, there had not been adequate coverage in
the unit.
Beck also wrote that he would take steps to ensure
that Chukwuka was not compensated for the additional one hour
that he took for lunch.
Chukwuka denies the facts in Beck’s
memorandum.
Seventh, on April 5, 2005, Beck sent Chukwuka a memorandum
in which he stated that Chukwuka had been gone from his
workstation from 9:55 A.M. to 10:35 A.M.
Beck wrote that
Chukwuka would not receive credit for the time that he was away
from his workstation.
Chukwuka denies the facts in Beck’s
memorandum.
Eighth, in April 2004, Chukwuka received his evaluation for
the period of October 1, 2002, to March 31, 2004.
Chukwuka’s ratings were “good.”
prepared the evaluation.
All of
The parties dispute who
Defendants assert that Martin,
Chukwuka’s immediate supervisor, prepared it.
Chukwuka denies
this fact, and states that Beck actually prepared the
evaluation, which, according to Chukwuka, was contrary to the
evaluation policy.
In August 2004, Chukwuka transferred to the Office of
Domestic Violence and Emergency Intervention as an Associate
Staff Analyst, where he received a $6,000 raise.
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Chukwuka’s
position in the Office of Domestic Violence and Emergency
Intervention was a promotion from his position in BORAC.
Chukwuka filed a Charge of Discrimination with the New York
State Division of Human rights on November 8, 2004.
The United
States Equal Employment Opportunity Commission, by letter dated
February 14, 2005, made a determination that it was “unable to
conclude that the information obtained establishes violations of
the statutes,” but it issued Chukwuka a notice of right to sue.
He commenced this action within 90 days of the notice.
DISCUSSION
Summary judgment should be granted “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
A genuine dispute as to a material fact exists when
the evidence is such that a reasonable finder of fact could
return a verdict for the non-moving party.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.
Ed.2d 202 (1986).
In deciding whether a genuine dispute exists,
a court must “construe the facts in the light most favorable to
the non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant.” Dallas Aero.,
Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
Title VII makes it unlawful “for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise
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to discriminate against any individual with respect to his
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)(1).
In a Title VII
discrimination case, a court applies the three-part burden
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04, 93 S. Ct. 1817, 1824–25, 36 L. Ed.2d 668 (1973), to
determine whether summary judgment is appropriate.
Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
Under the McDonnell Douglas test, the plaintiff first must
establish a prima facie case of discrimination by showing that:
(1) he is a member of a protected class; (2) he is qualified for
his position; (3) he suffered an adverse employment action; and
(4) the circumstances give rise to an inference of
discrimination.
802).
Id. (citing McDonnell Douglas, 411 U.S. at
If the plaintiff succeeds in presenting a prima facie
case, the defendant may rebut that showing by articulating a
legitimate, non-discriminatory reason for the employment action.
Weinstock, 224 F.3d at 42.
Once the defendant articulates such
a reason, the plaintiff must come forward with evidence that the
defendant’s proffered non-discriminatory reason is mere pretext
for actual discrimination.
Id.
Defendants argue that because Chukwuka did not suffer an
adverse employment action, he has not made out a prima facie
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case of discrimination under the first part of the McDonnell
Douglas test.
An actionable adverse employment action is a
“materially adverse change in the terms and conditions of
employment,” such as “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished
material responsibilities, or other indices . . . unique to a
particular situation.”
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000) (citations and internal quotation marks
omitted).
Everyday workplace grievances, disappointments, and
setbacks do not constitute adverse employment actions within the
meaning of Title VII.
La Grande v. DeCrescente Distrib. Co.,
370 F. App’x 206, 211 (2d Cir. 2010).
Viewing the undisputed facts in the light most favorable to
Chukwuka, there is no evidence that Chukwuka suffered any
adverse employment action.
His eight instances of alleged
discrimination can be grouped into three categories.
First,
Chukwuka complains that Beck interfered with his evaluations on
two occasions.
In September 2002, Beck changed several ratings
in Chukwuka’s evaluation from “outstanding” to “very good.”
The
parties are in dispute about whether Beck had the authority to
change the ratings after Chukwuka received and signed the
evaluation.
But regardless of whether Beck had this authority,
it is undisputed that Chukwuka did not receive a rating below
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“very good.”
It is also undisputed that the evaluation had
several ratings below “very good,” which were “good,”
“marginal,” “unsatisfactory,” and “unratable.”
Chukwuka received his next evaluation.
In April 2004,
The parties dispute
whether Beck or Martin actually prepared the evaluation.
It is
undisputed, however, that all of the ratings in Chukwuka’s April
2004 evaluation were “good.”
Given this rating system, “very good” and “good” are not
negative evaluations.
In any event, “a negative performance
evaluation only qualifies as an adverse employment action if
there are accompanying adverse consequences affecting the terms
of employment.”
Kaur v. N.Y.C. Health and Hosps. Corp., 688 F.
Supp.2d 317, 332 (S.D.N.Y. 2010); see also Garcia v. N.Y.C.
Admin. of Children’s Servs., No. 03 Civ. 5271, 2007 WL 2822153,
at *6 (S.D.N.Y. Sept. 27, 2007) (“[T]he evaluations were
unattended by a demotion or tangible loss, and therefore did not
materially alter plaintiff’s employment conditions.”).
Here,
there is no evidence in the record that the change from
“outstanding” to “very good” or an evaluation with ratings of
“good” resulted in adverse consequences that affected Chukwuka’s
employment.
On the contrary, when Chukwuka left the unit in
2004 and transferred to the Office of Domestic Violence and
Emergency Intervention, he received a promotion and a raise.
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Second, Chukwuka complains of two occasions when he
requested leave from work.
In May 2002, he requested leave to
transport his brother’s body to Nigeria.
granted in full.
That request was
Chukwuka had to complete his assigned work
before he left, but such a requirement does not constitute an
adverse employment action.
See Galabya, 202 F.3d at 640 (“To be
‘materially adverse’ a change in working conditions must be more
disruptive than a mere inconvenience.” (citation and internal
quotation marks omitted)).
In September 2003, he requested four weeks of annual leave.
While the full request was denied, Chukwuka was allowed to take
fifteen days of leave.
In general, the denial of vacation time
does not rise to the level of an adverse employment action.
Kaur, 688 F. Supp.2d at 332.
Moreover, “the denial of a single
vacation request, without any indication that there was an
absolute prohibition against plaintiff taking any vacation time,
is not a material adverse employment action.”
Roff v. Low
Surgical & Med. Supply, Inc., No. 03 Civ. 3655 , 2004 WL
5544995, at *4 (E.D.N.Y. May 11, 2004) (citing Boyd v.
Presbyterian Hosp. in the City of N.Y., 160 F. Supp.2d 522, 53738 (S.D.N.Y. 2001)).
In Arroyo v. N.Y. Downtown Hosp., No. 07
Civ. 4275, 2010 WL 3861071, at *5 (E.D.N.Y. Sept. 28, 2010), the
defendant denied the plaintiff’s request to take a month-long
vacation because it was not feasible for the plaintiff to be out
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of the office for that length of time.
Instead, the defendant
allowed the plaintiff to take almost three weeks of vacation.
Id.
The court held that the denial of vacation under those
circumstances was not an adverse employment action.
Id.
Here,
Berkowitz told Chukwuka that he could not take four weeks of
vacation because it would impact the unit if he were gone for
that long, but she said that he could take up to fifteen days
according to her vacation policy.
The parties dispute the
existence of the vacation policy.
Even if there were no such
vacation policy, however, the denial of Chukwuka’s full vacation
request, when he was still able to take up to fifteen days, is
not an adverse employment action.
Third, Chukwuka complains of Beck’s excessive scrutiny and
criticism.
“[C]ourts in this circuit have found that
reprimands, threats of disciplinary action and excessive
scrutiny do not constitute adverse employment actions in the
absence of other negative results such as a decrease in pay or
being placed on probation.”
Uddin v. City of New York, 427 F.
Supp.2d 414, 429 (S.D.N.Y. 2006) (citation and internal
quotation marks omitted).
There is no evidence in the record
that negative results accompanied Beck’s scrutiny and criticism
of Chukwuka.
As noted above, when Chukwuka transferred to the
Office of Domestic Violence and Emergency Intervention, he
received a promotion and a raise.
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CONCLUSION
For the foregoing reasons, defendants’ motion for partial
summary judgment on the Title VII claim is granted.
Because I
have granted a supplemental motion for summary judgment on the
remaining claims, summary judgment is granted dismissing the
entire complaint.
The Clerk of the Court is directed to close
the case.
SO ORDERED.
Dated:
New York, New York
June 23, 2011
S/______________________________
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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