Glaves-Morgan v. The City of New York et al
Filing
34
OPINION AND ORDER re: 13 MOTION for Summary Judgment. filed by Robert Doar, The City of New York, Thomas Depippo, 24 MOTION for Sanctions Pursuant to FRCP Rule 37. filed by Sandra Glaves-Morgan. The Court has considered Defendants' ad ditional arguments and finds them without merit. The motion for sanctions is DENIED. The motion for summary judgment is GRANTED as to claims against the City and the individual defendants in their official capacity and as to the § 1981 claim for retaliation. The motion for summary judgment is DENIED as to all other claims, including the § 1981 claim for discrimination against the individual defendants in their personal capacity. The Clerk of the Court is instructed to close the motions. (Signed by Judge Harold Baer on 3/21/2012) (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SANDRA GLAVES-MORGAN,
:
:
Plaintiff,
:
:
- against :
:
THE CITY OF NEW YORK, ROBERT DOAR,
:
THOMAS DEPIPPO, and JOHN and JANE DOE,
:
:
Defendants.
:
:
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11 CV 1248 (HB)
OPINION & ORDER
Hon. Harold Baer, Jr., District Judge:
Plaintiff, an employee of the New York City Human Resources Administration (“HRA”),
brings this action pursuant to 42 U.S.C. § 1981,1 the New York State Human Rights Law, N.Y.
Exec. Law § 290 et seq., the New York City Human Rights Law, N.Y. City Admin. Code § 8101 et seq., and the New York State Civil Service Law, N.Y. Civ. Serv. Law §§ 75-b, 80
(McKinney). Plaintiff alleges that Defendants discriminated against her on the basis of her sex
and race, retaliated against her for her complaints of discrimination, and unlawfully demoted her.
Before the Court is a motion for summary judgment filed by Defendants on the grounds that (1)
Plaintiff has failed to state a Monell claim against the City, (2) Defendant DePippo was not
personally involved in the alleged discriminatory or retaliatory behavior and must be dismissed,
(3) Plaintiff has failed to establish a prima facie case of race discrimination or retaliation, (4) the
individual Defendants are entitled to qualified immunity, (5) certain of Plaintiff’s claims are
time-barred, (6) Plaintiff’s state law claims are procedurally barred, and (7) the Court should
decline to exercise supplemental jurisdiction over Plaintiff’s pendant claims. Plaintiff has filed a
motion for sanctions, wherein she accuses Defendants of obstructive discovery practices and
asks the Court to strike portions of its Rule 56.1 Statement, as well as for other relief. For the
1
Plaintiff relies on the private right of action under § 1983. See Whaley v. City Univ. of New York, 555 F. Supp. 2d
381, 400–01 (S.D.N.Y. 2008).
1
following reasons, the motion for summary judgment is granted in part and denied in part, and
the motion for sanctions is denied.
I.
BACKGROUND2
Plaintiff began her employment with HRA in 1995 when she was hired as Deputy
General Counsel in the Contracts, Business, and Commercial Law division. In 2002, she was
promoted to Agency Chief Contracting Officer (“ACCO”) and Executive Deputy Commissioner
for HRA’s Office of Contracts. As ACCO, Plaintiff was the principal contracting officer and
advisor to the HRA Commissioner on all matters relating to procurement and contracts for HRA.
In this role and with permission from then-Commissioner Verna Eggleston, Plaintiff reorganized
the ACCO’s office to include the Office of Purchasing and Materials Management (“OPMM”)—
formerly under the First Deputy Commissioner—because the ACCO was responsible for
advising OPMM, but OPMM was not reporting directly to the ACCO.
Plaintiff alleges that upon Robert Doar’s appointment as Commissioner, Doar and
Thomas DePippo—Doar’s First Deputy Commissioner—discriminated against her based on her
race, color, and gender. Amongst the adverse actions taken against her were that OPMM was
removed from her oversight, her responsibilities as ACCO were reassigned to persons outside the
protected classes, she was ultimately removed as ACCO, and she was demoted and received a
pay cut. All of this occurred, she alleges, under circumstances that raise inferences of
discrimination, including hurtful and offensive statements made by Defendants, favorable
treatment given to non-minority and non-female employees, and retaliation for her complaints of
discriminatory treatment. Plaintiff’s state and city claims are substantially broader than her
federal claims, which are concern only race discrimination and are used here to retain
jurisdiction.
II.
SANCTIONS
Plaintiff asks the Court to impose sanctions on Defendants, including prohibiting certain
defenses and the introduction of certain evidence at trial and striking portions of Defendants’
Rule 56.1 Statement. Plaintiff says Defendants willfully delayed the production of witnesses and
2
Unless otherwise indicated, facts are drawn from Plaintiff’s Rule 56.1 Statement in Opposition to the Motion of
Defendants for Summary Judgment.
2
other evidence and relied on documentary evidence in their motion for summary judgment that
was delivered only after Plaintiff noted the unproduced evidence. Defendants say they complied
with discovery requests in good faith and that Plaintiff never filed a motion to compel.
Despite considerable effort by Plaintiff to show me which evidence Defendants have yet
to produce, I am unable to determine that there are documents that Defendants are actually
withholding. Much of the discovery occurred very late in this case, indeed, discovery seemed to
continue well into the briefing of this motion. The parties were unable to agree on a number of
depositions, and depositions that had been scheduled were canceled, only to be rescheduled later.
This put considerable pressure on the parties. And while this may have resulted in Plaintiff
having seen certain evidence only for the first time when opposing this motion, I cannot find
such examples that have any bearing on the resolution of the issues discussed below. I am also
unable to determine that the delayed depositions were a result of willful or strategic decisions by
Defendants. Plaintiff is clearly dissatisfied with what she sees as Defendants’ unsatisfactory
answers to interrogatories submitted after the later depositions were taken. To the extent that
Defendants do identify documents that would more adequately answer certain of Plaintiff’s
requests, the Court expects that Defendants will produce those documents. Plaintiff, however,
was advised by the Court on December 13, 2011, to move pursuant to Rule 37 if any document
production was delinquent. She never moved to compel and indeed never even sought a
conference with the Court. Discovery ended on December 30, 2011. Plaintiff filed the motion for
sanctions on February 15, 2012, two months following the Court’s initial prompting.
Accordingly, Plaintiff’s motion for sanctions is denied.
III.
SUMMARY JUDGMENT
Summary judgment shall be granted in favor of a movant where “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 court must resolve all ambiguities and draw all inferences against the moving
party. See LaSalle Bank Nat’l Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir.
2005). The movant bears the burden of establishing the absence of any genuine issue of material
fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A material fact “might
affect the outcome of the suit under the governing law,” and an issue of fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holtz v.
3
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal quotation and citation omitted). “The
party against whom summary judgment is sought . . . ‘must do more than simply show that there
is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come
forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986)). Summary judgment in a discrimination case “may
still be appropriate if the plaintiff relies on conclusory allegations of discrimination and the
employer provides a legitimate rationale for its conduct.” Figueroa v. New York City Health &
Hosps. Corp., 500 F. Supp. 2d 224, 228 (S.D.N.Y. 2007) (internal quotation marks omitted).
“Indeed, the salutary purposes of summary judgment—avoiding protracted, expensive and
harassing trial—apply no less to discrimination cases than to commercial or other areas of
litigation.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (“Trial courts should not treat discrimination
differently from other ultimate questions of fact.” (internal quotation marks omitted)).
A.
Municipal Liability—The Monell Claim
To hold the City or the individual defendants in their official capacities liable under §
1983, Plaintiff must show that the violation of her constitutional rights was caused by a policy,
custom, or practice of the City. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690–
94 (1978); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989). A “persistent and widespread”
practice of a municipalities’ officials could also be “so permanent and well settled as to
constitute a ‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691 (internal citations
and quotation marks omitted).
Defendants argue that the named individual defendants do not have final policymaking
authority regarding personnel decisions. Defs.’ Supp. 2–3. They point to the New York City
Charter, arguing that such authority is vested finally and exclusively in the Commissioner for the
Department of Citywide Administrative Services. Id. (citing N.Y. City Charter §§ 3, 8(a), 21, 28,
811, 814(c)). As such, Defendants assert that only the Mayor, the City Council, and the
Personnel Director—and not agency heads—have policymaking authority, regardless of whether
or not other individuals have the power to make employment decisions. Id. (citing Soto v.
Schembri, 960 F. Supp. 751, 759 (S.D.N.Y. 1997)). Where Plaintiff points to Defendant Doar’s
reorganization of the division—during which Plaintiff and at least one other black employee
4
were terminated—and argues that this constitutes the establishment of a personnel policy or
custom, Pl.’s Opp’n 3–5, Defendants argue that while this is an example of a high-ranking
official hiring and firing employees under his jurisdiction, it does not constitute a City policy so
as to come within the confines of a Monell claim. Defs.’ Reply 4.
Plaintiff argues that Defendants’ emphasis on the locus of policymaking authority for
personnel decisions centers on the wrong question. Rather than looking for policymaking
authority regarding personnel matters for the municipality generally, the focus should be on
HRA itself. Pl.’s Opp’n 3. It is not necessary, Plaintiff argues, to find a persistent and widespread
practice of discrimination at a level higher than the particular agency in question here. Id. (citing
Gaffney v. Dept. of Info. Tech. & Telecomm., 536 F. Supp. 2d 445, 475 (S.D.N.Y. 2008)). In
Gaffney, the City had ordered the agency to make budget cuts, and the court found that a rational
juror could infer a persistent and widespread practice of discrimination by the City where the
senior management of the agency executed allegedly discriminatory restructuring policies.
Gaffney, 536 F. Supp. 2d at 474–75 (“[W]hen subordinate employees are alleged to have created
a persistent and widespread practice, the subordinates’ actions ‘must be so manifest as to imply
the constructive acquiescence of senior policy-making officials.’” (quoting Sorlucco v. New York
City Police Dep’t, 971 F.2d 864, 871 (2d Cir. 1992)).
In determining whether specific individuals or agencies hold final policymaking
authority, courts must look to state law. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988). “There are three means by which individuals can obtain such policymaking authority: (1)
by express legislative grant; (2) through delegation of policymaking authority by those to whom
the power has been expressly granted; or (3) by ‘widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law.’” Philippeaux v. N. Cent. Bronx Hosp., 871 F.
Supp. 640, 653 (S.D.N.Y. 1994) (quoting Praprotnik, 485 U.S. at 126), aff’d, 104 F.3d 353 (2d
Cir. 1996), cert. denied, 520 U.S. 1105 (1997).
With respect to means 1 and 2, Defendants are correct to note that under New York law,
policymaking authority for general personnel matters has not been vested in HRA or the named
individual defendants. See N.Y. City Charter ch. 35 (vesting such authority in the Commissioner
for the Department of Citywide Administrative Services). And the power to make employment
decisions alone does not qualify as policymaking authority, rather it is the power to act pursuant
5
to other City policies. See, e.g., Chin v. New York City Hous. Auth., 575 F. Supp. 2d 554, 562
(S.D.N.Y. 2008) (“The critical characteristic of final policymakers when employment is at issue
is whether the municipal official has authority to formulate the rules governing personnel
decisions rather than authority to make decisions pursuant to those rules—e.g., the hiring and
firing of subordinates.”). However, courts in this district have fallen on either side of the line
between agency heads and the Personnel Director in interpreting where policymaking authority
lies in the New York City Charter for the purposes of employment discrimination and retaliation
actions.3
Plaintiff failed to provide sufficient evidence to allow a reasonable juror to conclude that
the alleged discriminatory practices were so widespread as to constitute a custom or policy of the
City. Unlike in Gaffney, where there was a formal restructuring that resulted in the firing of
many employees and the subsequent rehiring later of employees outside the protected classes, the
evidence here of a municipal policy consists of testimony of a perceived trend of a greater
proportion of white men in Doar’s administration as compared to former-Commissioner
Eggleston’s. Pl.’s Opp’n 4. Plaintiff also recounts the alleged incidents of discrimination that
comprise her race discrimination claim, incidents that affected a limited number of individuals
close to Doar. A reasonable juror could not conclude that Doar’s reorganization of management
in HRA exhibited discrimination at a level so manifest as to constitute a municipal policy and to
impute these actions to the City. Summary judgment is granted to the City as to this claim.
B.
Personal Involvement of Defendant DePippo
To hold a municipal employee liable under § 1983, Plaintiff must show that the employee
was personally involved in, or caused the violation of, the Plaintiff’s rights. See Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), rev’d on other grounds, Ashcroft v. Iqbal, 556 U.S.
662 (2009); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000).
3
Compare Aggarwal v. N.Y. City Health & Hosps. Corp., No. 98 Civ. 5063(DLC), 2000 WL 172787, at *8
(S.D.N.Y. Feb. 10, 2000) (“[T]he City, through Section 814 of the New York City Charter, has placed authority with
the heads of agencies to establish ‘measures and programs to ensure a fair and effective affirmative employment
plan to provide equal employment opportunity for minority group members.’”), Ramos v. City of N.Y., No. 96 CIV.
3787(DLC), 1997 WL 410493, at *4 (S.D.N.Y. July 22, 1997) (same), and Philippeaux, 871 F. Supp. at 653 (same),
with Soto, 960 F. Supp. at 759 (“Since an agency head does not have final policymaking authority for personnel
policy, I find that plaintiffs have failed to establish liability under Monell.”), Hueston v. City of N.Y., No. 00 Civ.
9512(RCC), 2005 WL 53256 (S.D.N.Y. Jan. 10, 2005) (same), and Collins v. Stasiuk, 56 F. Supp. 2d 344, 345–46
(S.D.N.Y. 1999) (same).
6
“Because personal involvement is a question of fact, [the Court is] governed by the general rule
that summary judgment may be granted only if no issues of material fact exist and the defendant
is entitled to judgment as a matter of law.” Farrell v. Burke, 449 F.3d 470, 483–84 (2d Cir. 1994)
(internal quotation marks omitted). The fact that a defendant “was in a high position of authority
is an insufficient basis for the imposition of personal liability.” McKinnon v. Patterson, 568 F.2d
930, 934 (2d Cir. 1977) (noting need for additional evidence, such as participation in relevant
hearings, knowledge of wrongdoing, or direct responsibility or control), cert. denied, 434 U.S.
1087 (1978). Direct participation as a basis of liability “requires intentional participation in the
conduct constituting a violation of the victim’s rights by one who knew of the facts rendering it
illegal.” Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir. 2005) (internal quotation marks
omitted).
Defendants argue that “there is no evidence in the record that [DePippo] was directly
involved in or in any way facilitated the incidents which plaintiff contends were discriminatory
or retaliatory”, Defs.’ Supp. 3, and that the decision to reassign Plaintiff from the ACCO position
“was the Commissioner’s and not Mr. DePippo’s.” Defs.’ Reply 5. Plaintiff asserts that, beyond
just occupying a high level position and having a close relationship with Doar, DePippo
participated in the meetings where the Plaintiff’s employment was discussed, advised Plaintiff of
her demotion and pay reduction, and ultimately assumed supervision of the division formerly
under Plaintiff. Pl.’s Opp’n 5–7; see also Pl. 56.1 ¶¶ 2(qq), 108 (noting that DePippo admits he
“may have been part of the conversation” to demote Plaintiff and that, in the course of informing
Plaintiff of her demotion, pay cut, and reassignment, DePippo stated to Plaintiff: “at least you are
not going to be cleaning washrooms”).
Plaintiff has proffered sufficient evidence to show that an issue of material fact exists as
to DePippo’s personal involvement in the alleged discriminatory actions, and summary judgment
must be denied as to claims against DePippo.
C.
Race Discrimination under Section 1981
A motion for summary judgment for a § 1981 claim is analyzed under the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Gertskis v. NYC
D.O.H.M.H., 375 F. App’x 138, 138–39 (2d Cir. 2010). Under the McDonnell Douglas analysis,
the plaintiff must first establish a prima facie case of discrimination based on her race by
demonstrating that (1) she is a member of a protected class; (2) she was qualified for her
7
position; (3) she suffered an adverse employment action; and (4) that action occurred under
circumstances giving rise to an inference of discriminatory intent. 411 U.S. at 802. The
demonstration of a prima facie case “in effect creates a presumption that the employer
unlawfully discriminated against the employee.” Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.
1997). However, there is a presumption of discrimination “only because we presume these acts,
if otherwise unexplained, are more likely than not based on the consideration of impermissible
factors.” Id. (emphasis removed). After the plaintiff has satisfied this “minimal” initial burden,
see, e.g., Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004), the burden of going
forward shifts to the defendant to provide a legitimate non-discriminatory reason for the adverse
employment action. Id. This showing must be supported by admissible evidence that, if believed
by the trier of fact, would support a finding that unlawful discrimination was not the cause of the
employment action. The plaintiff then has an opportunity to demonstrate that the defendant’s
reasons were merely a pretext for discrimination. See id.
Throughout this analysis, “[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”
Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Thus, even where plaintiff’s
evidence is sufficient to raise a question as to one part of the burden-shifting inquiry, the ultimate
question is whether there is sufficient evidence for a jury to find that she was discriminated
against because of her race. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 93–94 (2d
Cir. 2001). Where a plaintiff has not met that burden, summary judgment is appropriate.
Moreover, if a plaintiff fails to show the existence of a genuine issue of material fact with respect
to the prima facie claim, summary judgment is appropriate on that basis alone. See Carr v.
WestLB Admin., Inc., 171 F. Supp. 2d 302, 306 (S.D.N.Y. 2001).
i.
Prima Facie Case and Legitimate Nondiscriminatory Purposes
Plaintiff has clearly established the first three elements of the prima facie claim: she is a
member of a protected class because she is black; she was qualified, based on her education, past
performance, and experience, for her positions as ACCO and Executive Deputy Commissioner;
and she suffered adverse employment actions, including her reassignments, demotion, and pay
cut. With respect to the fourth element, Plaintiff argues that the following facts support an
inference of discrimination: the events leading up to her removal as ACCO, her demotion, and
the assignment of her responsibilities to whites; false, conflicting, and implausible reasons given
8
to her for these actions; the more favorable treatment of white employees similarly situated,
including differences in pay; degrading comments made to Plaintiff by white colleagues; and
invidious comments regarding Plaintiff and other black females in general. Pl.’s Opp’n 9–10.
Defendants respond that the evidence Plaintiff offers is nothing more than speculation, and that
the actions taken against Plaintiff occurred under circumstances that do not give rise to an
inference of discrimination. Defs.’ Supp. 5. But at the prima facie stage, “the mere fact that a
plaintiff was replaced by someone outside the protected class will suffice for the required
inference of discrimination . . . .” Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381
(2d Cir. 2001). Here, Plaintiff’s responsibilities as ACCO were replaced by individuals outside
the protected class. See, e.g., Pl. 56.1 ¶¶ 2(m), (r).
Defendants offer explanations for all of the adverse actions taken against Plaintiff. Upon
Doar’s appointment as Commissioner, Doar undertook many actions that he felt necessary to
reorganize and improve HRA. Among these actions are those complained of by Plaintiff.
Defendants point to testimony describing a deliberative process, involving the input of many
individuals, and decisions that were ultimately thought to be in the best interests of HRA and the
City. Defs.’ Supp. 8–13.
ii.
Pretext
A plaintiff alleging employment discrimination may show pretext where “the employer’s
given legitimate reason is unworthy of credence,” Dister v. Cont’l Group, Inc., 859 F.2d 1108,
1113 (2d Cir. 1988), “by reliance on the evidence comprising the prima facie case, without
more,” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994), or “by demonstrating
that similarly situated employees outside of the protected class were treated differently.” Bennett
v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 249 (S.D.N.Y. 2001). The concern is not the truth
of the negative imputations against the plaintiff but rather “what motivated the employer.”
McPherson v. N.Y. City Dept. of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (internal quotation
marks omitted). To that end, the plaintiff ultimately “must establish both that [the defendants’
stated] reason was false, and that discrimination was the real reason.” Fisher v. Vassar College,
70 F.3d 1420, 1433 (2d Cir. 1995) (internal quotation marks omitted).
Plaintiff’s allegations of discrimination encompass multiple actions taken by Defendants
that occurred over the course of many years. Though I have organized the issues below
principally in terms of the adverse employment actions taken against Plaintiff, it is the
9
“cumulative weight of circumstantial evidence” that Plaintiff relies on. Pl.’s Opp’n 11 (citing and
quoting Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000)). “Summary judgment
is appropriate at this point only if the employer’s nondiscriminatory reason is dispositive and
forecloses any issue of material fact.” Carlton, 202 F.3d at 135. And where an employer’s intent
is at issue, courts should exercise caution in deciding to grant summary judgment. Gladwin v.
Pozzi, 403 F. App’x 603, 604 (2d Cir. 2010) (stating that evidence “must be carefully scrutinized
for circumstantial proof which, if believed, would show discrimination” (internal quotation
marks omitted)). “When reasonable persons, applying the proper legal standards, could differ in
their responses to the question” raised on the basis of the evidence presented, the question must
be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000).
a. Oversight over the Office of Purchasing and Materials Management
OPMM had been under Plaintiff’s supervision for five years when, in 2007, Doar placed
it under DePippo’s supervision. Defendants note that OPMM was originally under the
jurisdiction of the First Deputy Commissioner and that this change merely restored the status
quo. Furthermore, Defendants assert that Plaintiff was involved in the decisionmaking process
that ultimately led to this change, and that the reorganization was intended to allow the ACCO to
“devote her energy to continuous improvement in the very complex contracting process”. Defs.
56.1 ¶ 65 (quoting intraoffice memorandum from Doar). And contemporaneous with this
reorganization, Doar appointed a black woman to head the OPMM division. Plaintiff argues that
Defendants’ stated reasons are false. Defendants removed OPMM from Plaintiff’s oversight in
the face of counter-advice. There had been no complaints that OPMM or the ACCO’s office was
ineffective. OPMM was assigned to DePippo, a white man (who both lacked relevant experience
and received a promotion and pay increase). And Defendants ultimately placed OPMM under the
newly appointed second ACCO, also a white man. Pl.’s Opp’n 14–16.
b. Oversight by General Counsel Rather than Commissioner
In early 2009, Doar directed Plaintiff to begin reporting to HRA’s General Counsel, Roy
Esnard, whereas previously the ACCO reported directly to the Commissioner. Defendants argue
that this is not an adverse employment action under the law. Defs.’ Supp. 7–8. Furthermore,
there can be no inference of discrimination where her responsibilities changed from reporting to
a white male to reporting to a different white male, and where similar modifications to the
organizational structure affected a diverse range of individuals. This is especially true where the
10
second ACCO, a white male, was also reporting to the General Counsel, raising no issue of
differential treatment. Plaintiff in turn presents a very different account of the change in
reporting structure. Pl.’s Opp’n 16–17. Plaintiff attempts to undermine Defendants’ contention
that the second ACCO was treated similarly, and she points to testimony that she says suggests
that this reorganization decision was unsound to begin with and subjected her to untoward
supervision.
Defendants cite cases for the proposition that this reorganization is not an adverse
employment action. These cases provide little guidance here.4 Plaintiffs, on the other hand, urge
the Court to focus on whether the actions taken against Plaintiff are, in the aggregate, adverse
and suggest discriminatory animus. Pl.’s Opp’n 16–17 (quoting Timothy v. Our Lady of Mercy
Med. Ctr., No. 03 Civ. 3556(RCC), 2004 WL 503760, at *6 (S.D.N.Y. Mar. 12, 2004). When
viewed in the aggregate, the change in reporting structure is part of an overall adverse action
taken against Plaintiff. The steps taken along the way to Plaintiff’s ultimate demotion and pay
cut—unequivocal adverse actions—include her marginalization from senior management.
However, the evidence Plaintiff provides to demonstrate that this change was pretextual is
exceedingly thin.5
4
In Morrison v. Potter, the court rested its holding on the failure of the plaintiff to present any evidence beyond the
loss of an office. 363 F. Supp. 2d 586, 591 (S.D.N.Y. 2005) (“Because Morrison has failed to establish that she
suffered any adverse employment action, she has not made out a prima facie case of either discrimination . . . or of
retaliation.”). In Harrison v. New York City Off-Track Betting Corp., the plaintiff was dissatisfied with being
overlooked for a promotion. No. 99 Civ. 6075(VM), 2001 WL 1154691, at *2 (S.D.N.Y. Sept. 28, 2001). In Alers v.
New York City Human Res. Admin., the plaintiff was “merely assigned to assist callers with telephones rather than
computers.” No. 06-CV-6131 (SLT)(LB), 2008 WL 4415246, at *7 (E.D.N.Y. Sept. 24, 2008).
5
For example, Plaintiff cites deposition testimony for the following assertion: “Defendant Doar deliberately
excluded and ‘froze out’ Plaintiff from senior staff meetings. Instead, James George, Plaintiff’s former deputy, who
was then acting as the second ACCO, was invited to HRA senior staff meetings.” Pl.’s Opp’n 16 (citing Pl. 56.1 ¶
2(x), (y)). The testimony that apparently supports this assertion merely states the following:
Q: When Sandra Glaves-Morgan reported directly to you, did she continue to attend senior staff meetings?
A: I believe so.
Q: Did Jim George also attend senior staff meetings at the time he was reporting to you?
A: I believe so.
Q: Did there come a time when Sandra Glaves-Morgan stopped attending senior staff meetings?
A: I believe so.
Esnard Dep. 202:21–203:8, Dec. 1, 2011. Somewhat more persuasively, Plaintiff notes that after the roughly four
month period where Plaintiff reported to Esnard—when Doar removed her as ACCO and placed her in the newly
11
c. Removal as Agency Chief Contracting Officer
In early 2008, Doar created a second ACCO position and Plaintiff’s former subordinate,
James George, a white male, was appointed to assume that position. Pl. 56.1 ¶ 2(r). Plaintiff
describes how over time, the second ACCO’s responsibilities grew, eroding her own role, and
when in July 2009 Doar ultimately decided to replace Plaintiff with George, Doar described
George as “the man for the job.” Pl. 56.1 ¶ 2(ff). Defendants point to evidence as far back as
2007 to suggest that there were longstanding concerns with Plaintiff’s ability to work effectively
with the Mayor’s Office of Contract Services (“MOCS”). Defs.’ Supp. 8–13. Plaintiff argues that
Defendants rely on testimony made for the purposes of litigation and that there is no
documentary support to suggest dissatisfaction with Plaintiff’s performance as ACCO. Plaintiff
goes on to argue that there is just as much, if not more, testimony suggesting Plaintiff was a
competent and effective ACCO. Pl.’s Supp. 17–18; see also Pl. 56.1 ¶ 2(i), (j). Much of the
testimony offered by both sides seems unsupported by either documentary evidence or first-hand
knowledge.6
d. Demotion and Pay Cut
Upon Plaintiff’s removal as ACCO, Doar created for her a new position titled “Executive
Deputy Commissioner, Office of Interagency Relations,” Pl. 56.1 ¶ 2(ff), a change that brought
with it many deleterious consequences. Id. ¶ 2(kk). Roughly a year later, Plaintiff was demoted
several levels and pay grades, in part, because Defendants felt she had no supervisory
responsibilities (in the role created specifically for her). Id. ¶ 2(oo). Plaintiff states that DePippo
stressed that her reassignment to a lower position was temporary and that “if another opportunity
presented itself she should take that opportunity.” Id. ¶ 2(tt). Doar testifies that he created the
new position for her because he “wanted to give [Plaintiff] an opportunity to find another
opportunity in city government or elsewhere, and [he] wanted to help her with that transition out
created position of Executive Deputy Commissioner, Office of Interagency Relations—Doar joked “I guess I might
even put you back on senior staff”. Glaves-Morgan Dep. 187:9–10, Nov. 10, 2011.
6
The parties do provide some evidence involving the review of a cleaning services contract with a subcontractor,
Cristi Cleaning Service Corporation. See, e.g., Defs. 56.1 ¶ 45; Pl. 56.1 ¶ 42–45. The resolution of the questions
raised by this contested factual issue—what Plaintiff’s responsibility was, what was said and to whom, and when
and under what circumstances action was finally taken in response to Cristi’s violations—is a matter better suited for
a factfinder.
12
of the ACCO’s office.” Doar Dep. 459: 2–6, Nov. 7, 2011. Doar, according to Defendants, could
have terminated her but decided instead created a “soft landing” for Plaintiff. Defs.’ Supp. 13–
14. The demotion and pay cut should be understood in the context of Doar trying to find an
alternative to outright dismissal. Id. at 14–15. Plaintiff points to Doar’s testimony, arguing that
Doar and DePippo never provided a reason to Plaintiff for her removal and demotion. Pl. 56.1 ¶
2(gg), (hh); see also Doar Dep. 388:4–13, 394:13–398:13, 399:4–400:14 (admitting that the
reasons for her removal were never reduced to writing in any form).
e. An Inference of Discrimination
Plaintiff points to several facts that she argues a reasonable juror could rely on when
inferring discriminatory intent on the part of Defendants. Plaintiff was replaced as ACCO by
white persons. Pl. 56.1 ¶ 2(aa), (ee). When Plaintiff asked why she was removed and demoted,
Doar stated “Because I can”. Id. ¶ 2(o). Senior management, comprised of approximately 20
people, had three black persons under the former Commissioner. Two were removed under Doar
and replaced by white persons. Id. ¶ 27. Plaintiff was told that she’s “not gonna be anybody in
this agency.” Id. ¶ 2(s). And upon her demotion and pay cut, she was told by DePippo “at least
you will not be cleaning washrooms”, Id. ¶ 2(qq), and by Doar “I’ve looked at your pension and
I realize that you won’t be hurt too badly”, Glaves-Morgan Dep. 176:2–4, Nov. 10, 2011.
Plaintiff points to discrepancies in the level of education among black and white senior and
management staff, and attempts to show that more qualified black employees are overlooked.
Included in this group of evidence is her pay cut, where she puts forth facts suggesting that
similarly situated white managers who had a comparable level of responsibility, did not receive
pay cuts. Pl. 56.1 ¶ 2(oo).
As to the comments made by Doar and DePippo that Plaintiff relies on to provide a
“background of immediate and long-lasting animus” aimed at Plaintiff, Pl.’s Opp’n 13,
Defendants argue that these comments are stray remarks and raise no inferences of
discrimination. Defs.’ Reply 5–9. While these comments do not unequivocally evidence race
discrimination, looked at in the context of a white boss to a black subordinate, a reasonable juror
could infer discrimination. See Crump v. NBTY, Inc., No. 10-CV-632 (WFK)(ETB), 2012 WL
692174, *5–6 (E.D.N.Y. Mar. 1, 2012) (assuming for the purposes of a summary judgment
motion the reference of a superior to “your kind” was discriminatory). And DePippo, at least,
acknowledges that his comment about “cleaning washrooms” is potentially discriminatory. Pl.
13
56.1 ¶ 2(rr). Furthermore, these comments were made by her superiors in the context of
employment decisions that adversely impacted her.
In sum, it is possible Defendants could prevail on a motion for summary judgment as to
some of these issues. It is doubtful, for instance, that the change in Plaintiff’s oversight from the
Commissioner to the General Counsel either constitutes an adverse employment action or
occurred under circumstances that raise an inference of discrimination. Furthermore, because the
lawsuit concerns individuals at the highest levels of public service, their numbers are few. This
makes it difficult to read any discriminatory intent into minor variations between pay or
allocations of responsibility. With such small sample sizes and with decisions that are specific to
each individual, it is hard to find either that individuals are similarly situated or that there are any
patterns to Doar’s decisions. But there remain a number of contested factual issues, such as
whether Doar was actually dissatisfied with Plaintiff’s performance, that are best suited for a
jury. And the circumstances in which the adverse employment actions taken against Plaintiff
occurred—such as DePippo’s comment that he acknowledged could be discriminatory,
comments by Doar that, with more context, might suggest bias, the immediate scrutiny of
Plaintiff’s performance upon Doar’s appointment when Plaintiff had been performing her job
satisfactorily under Eggleston, and the gradual shift towards a more white and male senior
staff—provide sufficient grounds for a reasonable juror to infer discriminatory intent. Cf. Golia
v. Leslie Fay Co., Inc., 01 CIV. 1111 (GEL), 2003 WL 21878788, at *5 (S.D.N.Y. Aug. 7,
2003). Summary judgment must therefore be denied.
D.
Retaliation under Sections 1981
Retaliation claims under § 1981 also fall under the McDonnell Douglas standard. See,
e.g., Carmody v. Vill. of Rockville Ctr., 661 F. Supp. 2d 299, 324 (E.D.N.Y. 2009) (collecting
Second Circuit cases). To make out a prima facie case of retaliation, plaintiff must show: “[1]
participation in a protected activity known to the defendant; [2] an employment action
disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the
adverse employment action.” Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); accord
Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006). “The
term ‘protected activity’ refers to action taken to protect or oppose statutorily prohibited
discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). The plaintiff can
establish a prima facie case by showing a mere temporal proximity between the protected
14
conduct and the alleged retaliatory action. El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932–
33 (2d Cir. 2010).
Plaintiff has established the first two elements. Plaintiff attests that she complained to
Doar that a colleague’s termination “was not warranted, and was because she was a black female
in a top executive position in the agency.” Maduegbuna Decl. Ex. 14 ¶ 18. Plaintiff further attests
that when Doar first came to HRA, she “set out to tell him about the outstanding black staff
members who did great work but were underpaid.” Id. ¶ 11. She states that she told Doar about
white staff who were less qualified but were treated more favorably than black staff and attained
higher management positions. Id. ¶ 12. Her declaration, while it doesn’t provide the verbatim
content of the conversations, is sufficient to show that she complained to Doar about what she
saw as discriminatory treatment of blacks.7 See Cruz, 202 F.3d at 566 (“[O]pposition to a Title
VII violation need not rise to the level of a formal complaint in order to receive statutory
protection . . . .”); see also Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)
(including in the definition of “opposition” such activities as “making complaints to
management, writing critical letters to customers, protesting against discrimination by industry
or by society in general, and expressing support of co-workers who have filed formal charges”).
She has shown that adverse actions were taken against her, including her removal as ACCO and
her ultimate demotion and pay cut. See Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000).
To establish the final element, Plaintiff must show that the adverse action taken against
her is causally connected to her complaint. “A causal connection may be shown directly, through
evidence of retaliatory animus directed against the plaintiff by the defendant, or indirectly, by
showing that the protected activity was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment of fellow employees who engaged in
similar conduct.” Lessambo v. PricewaterhouseCoopers, L.P., 08CIV6272, 2010 WL 3958787,
at *13 (S.D.N.Y. Sept. 27, 2010) (internal citation omitted), aff’d, 451 F. App’x 57 (2d Cir.
2011).
Plaintiff has failed to establish the causation element of her prima facie case. Plaintiff’s
initially complained of disparate treatment when Doar first arrived, which was in February 2007,
7
Plaintiff states that she did speak with HRA’s Equal Employment Opportunity Officer, but this was after the
alleged adverse actions were taken against Plaintiff. Defs.’ Supp. 17.
15
and she complained in December 2007 when a black colleague was fired. Plaintiff was removed
as ACCO in July 2009 and demoted in December 2010. A reasonable juror could not find that
these adverse actions taken against Plaintiff were causally connected to her complaints which
were made approximately two years earlier. See Milano v. Astrue, 05CIV.6527(KMW)(DCF),
2008 WL 4410131 (S.D.N.Y. Sept. 26, 2008), aff’d, 382 F. App’x 4 (2d Cir. 2010) (“The 13
months separating that protected activity in July 2005 from Plaintiff’s reassignment in August
2006 is too long a period to allow Plaintiff to benefit from the inference of discriminatory intent
afforded in cases of temporal proximity.” (internal quotation marks omitted)); Garrett v. Garden
City Hotel, Inc., No. 05 Civ. 0962, 2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007)
(“[D]istrict courts in this Circuit have consistently held that a passage of more than two months
between the protected activity and the adverse employment action does not allow for an
inference of causation.”).
Plaintiff does argue, however, that the adverse action taken against her is best understood
as a series of events that culminate with her demotion several years later, including the hostile
environment in which she worked. This still leaves seven months between her initial complaints
and the removal of OPMM from her oversight—the first in the series of events that together
could constitute an adverse action. Even with the potentially discriminatory comments that
Plaintiff relies on in establishing her race discrimination claim, a reasonable juror could not
conclude that Doar’s decisions during his reorganization of HRA were in retaliation for her
earlier complaints. See Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist.,
411 F.3d 306, 314 (2d Cir. 2005) (“This Court has not established a specific delay between
protected activity and adverse employment action that defeats an inference of causation. We
have in the past held that a delay of three months was fatal to a showing of causation, and that a
delay of eight months supported a showing of causation.”). Cf. Fowler v. N.Y. Transit Auth., 96
CIV. 6796 (JGK), 2001 WL 83228 (S.D.N.Y. Jan. 31, 2001) (“[T]he series of actions that the
plaintiff complained of as being retaliatory . . . occurred the day after she complained of
discrimination[,] and . . . other incidents occurred in sufficiently close proximity to protected
activity to raise a strong inference of retaliation”). Plaintiff’s retaliation claim thus fails as a
matter of law because the “causal nexus” between her complaint to Doar and the adverse actions
taken against her is “too attenuated.” Burkybile, 411 F.3d at 313. Summary judgment is granted
as to this claim, and the claim is dismissed.
16
E.
Qualified Immunity
“Qualified immunity shields government officials from liability for civil damages as a
result of their performance of discretionary functions, and serves to protect government officials
from the burdens of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir. 1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982)). “[A] government actor
enjoys qualified immunity if, at the time of the challenged action, it was objectively reasonable
for him to believe that his behavior did not violate the [plaintiff’s] clearly established
constitutional rights.” Id. at 418. Defendants argue that they are entitled to qualified immunity
because they did not violate Plaintiff’s rights under the Constitution and, in any event, Plaintiff
did not have a clearly established right to her employment, as she was at-will. Defs.’ Supp. 19–
20. As stated above, a reasonable juror could find that Defendants’ justifications were pretextual
and that discrimination was a motivating reason for the adverse employment actions taken
against Plaintiff. There is little doubt that Defendants were on notice that individuals have a right
to be free from race discrimination. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107, 129–30 (2d Cir. 2004). And “it can never be objectively reasonable for a
governmental official to act with the intent that is prohibited by law.” Id. at 130 (internal
quotation marks omitted). Summary judgment on this basis is denied.
F.
Statute of Limitations for Section 1983 Claims
A claim under federal law “accrues once the plaintiff knows or has reason to know of the
injury which is the basis of his action.” Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (internal
quotation marks omitted). And the statute of limitations under § 1983 is three years. Id.
Defendants argue that the following actions are time-barred because the occurred over three
years before Plaintiff filed her complaint: (1) the removal of OPMM from Plaintiff’s oversight;
(2) Doar’s comment to Plaintiff that her office was “woman-heavy”; and (3) Doar’s comment to
Plaintiff that he was making changes “because [he] can”. Defs.’ Supp. 20–21. Plaintiff argues
that these events are not asserted as independent claims, and they provide the necessary
background and are part of the same unlawful practice that includes recent acts. Pl.’s Opp’n 24.
Defendants respond that the theory of a continuing violation is unavailable where Plaintiff has
alleged discrete acts of discrimination. Defs.’ Reply 3–4 (citing Nat’l R.R. Passenger Corp.
(“AMTRAK”) v. Morgan, 536 U.S. 101, 113 (2002)).
17
It is not clear how the actions Defendants seek to time bar can stand alone as discrete
discriminatory acts. “A claim does not accrue, of course, until the challenged conduct causes the
claimant injury.” Veal, 23 F.3d at 725. Unlike Plaintiff’s change in reporting from Doar to the
General Counsel, the parties have not argued the issue of whether OPMM’s removal from
Plaintiff’s oversight constitutes an adverse employment action. But for similar reasons as the
change under the General Counsel, it is unlikely that the removal of OPMM from Plaintiff’s
oversight could serve as a basis, standing alone, for a discrimination claim. See Anderson v.
Nassau County Dept. of Corr., 558 F. Supp. 2d 283, 299 (E.D.N.Y. 2008) (“Discrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.”).
Rather, these events are relied on by Plaintiff to infer discriminatory intent on the part of
Defendants.8 Summary judgment on this basis is denied.
G.
State Law Claims
Defendants argue that because Plaintiff has not pled or proven that a notice of claim was
filed for her New York Civil Service Law claims, these claims must be dismissed. Defs.’ Supp.
21 (citing N.Y. Gen. Mun. Law §§ 50-i, 50-e; Parochial Bus Sys. v. Bd. of Educ., 60 N.Y.2d 539,
548 (1983)). Plaintiff did not respond in her brief, and she conceded the point at oral argument.
Tr. 46:6–20, Mar. 6, 2012. Despite Plaintiff’s failure to present any evidence or argument for
why summary judgment should not be granted, I am unable to determine that Defendants are
entitled to judgment as a matter of law.
Generally speaking, § 50-i requires notice for tort claims “for personal injury, wrongful
death or damage to real or personal property alleged to have been sustained by reason of the
negligence or wrongful act” of the City. N.Y. Gen. Mun. Law § 50-i (McKinney). However,
under New York law, the notice of claim requirement does not apply “where the primary relief
being sought is equitable in nature, and monetary damages are only incidental.” People United
for Children, Inc. v. City of N.Y., 108 F. Supp. 2d 275, 301 (S.D.N.Y. 2000). “In determining
whether plaintiffs primarily seek equitable or monetary relief, the Court must consider the
complaint in the light of all its allegations and its full scope and purport.” Id. (internal quotation
marks omitted). Here, Plaintiff seeks both equitable relief, including her reinstatement as ACCO,
8
Defendants argue that these discrimination claims are barred; Plaintiff, confusingly, says these actions are part of
Plaintiff’s hostile work environment claims. Pl.’s Opp’n 24.
18
and damages. See Compl., Prayer for Relief. Defendants have not met their burden because they
have not demonstrated that the notice of claim was required in this instance, Summary judgment
is denied as to these claims.
IV.
CONCLUSION
The Court has considered Defendants' additional arguments and finds them without
merit. The motion for sanctions is DENIED. The motion for summary judgment is GRANTED
as to claims against the City and the individual defendants in their official capacity and as to the
§ 1981 claim for retaliation. The motion for summary judgment is DENIED as to all other
claims, including the § 1981 claim for discrimination against the individual defendants in their
personal capacity. The Clerk of the Court is instructed to close the motions.
SO ORDERED.
~arch ~,2012
New York, New York
HAROLD BAER, JR.
United States District Judge
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