Yu v. New York State Unified Court System Office of Court Administration et al
Filing
41
OPINION AND ORDER re: 23 MOTION for Summary Judgment -Notice of Motion- filed by Marcello Ritondo, New York State Unified Court System Office of Court Administration. For the reasons set forth in this Opinion and Order, Defendants' motion for summary judgment (Docket No. 23) is GRANTED and Plaintiff's Complaint is dismissed in its entirety. The Clerk of the Court is directed to close this case. (Signed by Judge Jesse M. Furman on 7/12/2013) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LILLIAN YU,
:
Plaintiff,
:
:
-v:
:
NEW YORK STATE UNIFIED COURT SYSTEM
:
OFFICE OF COURT ADMINISTRATION ET AL.,
:
:
Defendants.
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:
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07/12/2013
11 Civ. 3226 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Plaintiff Lillian Yu, a woman of Asian descent, brings this action against her current
employer, the New York State Unified Court System Office of Court Administration (“OCA”),
and her supervisor Marcello Ritondo (collectively, “Defendants”), alleging discrimination on the
basis of gender, failure to promote, a hostile work environment, and retaliation, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; Title 42, United States
Code, Section 1983; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law
§ 290 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code
§ 8-101 et seq. Yu also brings a claim for abuse of authority under Section 1983 and a claim for
violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206. Defendants now move for summary
judgment on all of Plaintiff’s claims. For the reasons stated below, Defendants’ motion is
granted, and Plaintiff’s Complaint is dismissed.
FACTS
The following facts, taken from the Complaint and the admissible materials submitted by
the parties, are viewed in the light most favorable to Plaintiff, as she is the non-moving party.
OCA is a New York State agency that provides administrative services for the New York
State court system. (Tomari Aff. Ex. B (Docket No. 24) ¶ 4). Yu has been employed by OCA
on a full-time basis since 1999. (Defs.’ 56.1 Statement (Docket No. 28) ¶¶ 1, 5; Compl. (Docket
No. 1) ¶ 3). Ritondo is an OCA employee and one of two Principal Local Area Network
(“LAN”) Administrators of the Civil Court Information Technology Unit. (Tomari Aff. Ex. B
¶ 5 & Ex. C ¶ 5). Ritondo supervises Yu and contributes to her performance evaluations, but he
does not have the authority to hire, fire, or promote any OCA employee. (Ritondo Decl. (Docket
No. 25) ¶ 2).
In the spring of 2000, the Civil Court of the City of New York posted a job opening for a
Senior LAN Administrator, at a pay grade of 23. (Id. ¶ 3). At the time, Yu was working as a
LAN Administrator for the Richmond County Surrogate’s Court at a pay grade of 21. (Id.). She
applied for the new position and was interviewed by a panel that included Ritondo, who
recommended that she be considered for the position. (Id. ¶¶ 3-4). Yu was later hired for the
position ― which constituted a promotion in civil service rank ― and began working as a Senior
LAN Administrator in July 2000. (Id. ¶ 4). As of March 2013, she still held this position and
was paid in accordance with her civil service rank of 23. (Id. ¶ 5).
In 2005, Ritondo and his supervisor, Ernesto Belzaguy, requested the “reclassification” of
several positions within the Technology Unit to higher pay grades because they believed that
certain employees were not adequately compensated for their work. (Id. ¶ 6). Ritondo and
Belzaguy assisted several employees in applying for reclassifications. (Id. ¶ 7). As a result, six
applicants were reclassified effective January 2006; several others, including three male
employees, were denied reclassifications. (Id. ¶¶ 9-11). Yu was never told about the
reclassification process and was not offered any assistance in completing the necessary
2
paperwork. (Pl.’s 56.1 Counterstatement (Docket No. 36) ¶ 14 (citing Yu Decl. Ex. D)).
Nevertheless, she was aware of the reclassifications at the time. (Compl. ¶ 16; Ritondo Decl.
¶ 11).
In November 2008, Plaintiff independently requested the reclassification of her position
from a pay grade of 23 to a pay grade of 25. (Compl. ¶ 26; McCarthy Decl. (Docket No. 26)
¶ 2). In early 2009, however, Deputy Chief Judge Fern Fisher and former New York City Chief
Clerk Jack Baer recommended that her request be denied (McCarthy Decl. ¶ 2), as did the Chief
of Staff for the Deputy Chief Administrative Judge’s Office (id. ¶¶ 2-3). On July 13, 2009, OCA
formally denied Yu’s request for reclassification; Yu was informed of this decision on July 30,
2009. (Compl. ¶ 27; McCarthy Decl. ¶ 3).
On September 4, 2009, Yu filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that she was discriminated against and not promoted based on
her race and gender. (Compl. ¶ 28; Tomari Aff. Ex. E (“EEOC Compl.”)). She also alleged that
she received “biased, faulty and negative performance evaluations” and was subject to a hostile
work environment and “continuous harass[ment],” in retaliation for her complaints about the
discrimination. (EEOC Compl. 4-6). Yu received a right to sue letter dated February 9, 2011,
and commenced this action on May 12, 2011. (Compl. Ex. A). In her Complaint, Yu asserts
eighteen causes of action, alleging that Defendants discriminated against her on the basis of her
“minority status as an Asian female,” created a hostile work environment, failed to promote her,
and retaliated against her, all in violation of Title VII, Section 1983, the NYSHRL, and the
NYCHRL. She also alleges violations of the EPA, as well as a claim for abuse of authority
under Section 1983. Defendants have moved for summary judgment on all of Yu’s claims.
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DISCUSSION
A. Standard of Review
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “no genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Summa v. Hofstra Univ., 708 F.3d 115, 123
(2d Cir. 2013). A dispute about a material fact is genuine if the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008).
In ruling on a motion for summary judgment, all evidence must be viewed “in the light most
favorable to the non-moving party,” Overton v. N.Y.S. Div. of Military & Naval Affairs, 373 F.3d
83, 89 (2d Cir. 2004), and the Court must “resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co.
of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
To defeat a motion for summary judgment, the non-moving party must advance more
than a “scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The non-moving party “cannot defeat the motion by relying on
the allegations in [its] pleading, or on conclusory statements, or on mere assertions that affidavits
supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir.
1996) (internal citation omitted). Affidavits submitted in support of or in opposition to summary
judgment must be based on personal knowledge, “set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4). Where the non-moving party fails to “come forth with evidence
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sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential
element of a claim,” summary judgment is appropriate. Selevan v. N.Y. Thruway Auth., 711 F.3d
253, 256 (2d Cir. 2013) (internal quotation marks omitted).
B. Eleventh Amendment Immunity
As an initial matter, Yu’s claims under the NYSHRL and the NYCHRL against OCA and
Ritondo in his official capacity must be dismissed for lack of subject-matter jurisdiction. Under
the Eleventh Amendment, a state is immune from suit in federal court. See Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 54-56 (1996). This sovereign immunity extends to “arms of the
state,” including agencies such as OCA, and to its officials sued in their official capacities for
money damages. See, e.g., Morgan v. N.Y.S. Atty. Gen. Office, No. 11 Civ. 9389 (PKC), 2013
WL 491525, at *11 (S.D.N.Y. Feb. 8, 2013) (internal quotation marks omitted); see also
Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (“[T]he New York State Unified Court
System is unquestionably an arm of the State . . . entitled to Eleventh Amendment sovereign
immunity.” (internal quotation marks and citation omitted)); Levi v. New York, No. 10 Civ. 3980
(JG) (RLM), 2010 WL 5559520, at *3 (E.D.N.Y. Dec. 22, 2010) (explaining that OCA is “not a
distinct entity amenable to suit, but is an integral part of the state” (internal quotation marks and
alterations omitted)). As Congress has not abrogated states’ sovereign immunity with respect to
claims brought under Section 1983, see Quern v. Jordan, 440 U.S. 332, 340-42 (1979), and New
York has not waived its immunity, see, e.g., Byrne v. Ceresia, No. 09 Civ. 6552 (WHP), 2011
WL 5869594, at *5 (S.D.N.Y. Nov. 22, 2011), aff’d 503 F. App’x 68 (2d Cir. 2012); Trivedi v.
N.Y.S. Unified Court Sys., 818 F. Supp. 2d 712, 722 (S.D.N.Y. 2011), Yu’s claims under Section
1983, the NYSHRL, and the NYCHRL against OCA and against Ritondo in his official capacity
must be dismissed.
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C. Timeliness of Claims
Next, many of Yu’s claims must be dismissed as time barred. For a Title VII action to be
timely, a plaintiff must file a complaint with the EEOC or equivalent state agency within 300
days of the allegedly unlawful employment practice. See Williams v. N.Y.C. Hous. Auth., 458
F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5). Discrimination claims under the
NYSHRL, the NYCHRL, and Section 1983, on the other hand, are subject to a three-year statute
of limitations. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007). In
this case, Yu filed her EEOC complaint on September 4, 2009, and the Complaint in this action
on May 12, 2011. Accordingly, Yu’s Title VII claims relating to incidents that took place before
November 7, 2008, and her NYSHRL, NYCHRL, and Section 1983 claims relating to incidents
that took place before May 12, 2008 — including, for example, all claims arising out of the 2006
reclassification process — are time barred.
As Yu contends, however, her claims relating to her application for reclassification in
November 2008 are timely. (Pl.’s Mem. in Opp’n (Docket No. 35) 5). Similarly, her hostile
work environment claims are not time barred, as she alleges at least one act contributing to the
claim — namely, the relocation of her office in 2011 — within the filing period. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“Provided that an act contributing to the
claim occurs within the filing period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.”). Finally, Plaintiff’s claims
under the EPA are timely as, under the Lilly Ledbetter Fair Pay Act of 2009 (the “Ledbetter
Act”), 42 U.S.C. § 2000e-5(e)(3)(A), an unlawful employment practice claim accrues with each
paycheck issued pursuant to a “discriminatory compensation decision or other practice.”
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D. The Equal Pay Act Claim
Turning to the merits, Yu’s first claim — under the EPA (Compl. Count I) — fails as a
matter of law. 1 The EPA prohibits employers from discriminating among employees on the
basis of sex by paying different wages for equal work performed under similar working
conditions. See 29 U.S.C. § 206(d)(1). To prevail on her claim under the EPA, Plaintiff must
establish a prima facie case by showing that (1) OCA pays different wages to employees of the
opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and
responsibility; and (3) the jobs are performed under similar working conditions. See Butler v.
N.Y. Health & Racquet Club, 768 F. Supp. 2d 516, 528-29 (S.D.N.Y. 2011) (citing LavinMcEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001)). Here, Yu has failed to provide any
evidence that OCA paid different wages to males and females performing work of equal skill,
effort, and responsibility under similar working conditions. Moreover, even if Yu had
established a prima facie case, she has done nothing to counter OCA’s evidence that any
disparity in compensation between Yu and her colleagues was the result of their respective civil
service rankings, responsibilities, and overall workload. (Ritondo Decl. ¶¶ 6, 13-15). See, e.g.,
Flaherty v. Massapequa Public Sch., 752 F. Supp. 2d 286, 299 (E.D.N.Y. 2010) (noting that, if
an employer establishes that an alleged wage disparity is justified by a legitimate, nondiscriminatory reason, the plaintiff must “counter the employer’s affirmative defense by
producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex
discrimination”). In fact, Yu herself conceded that her salary and the salaries of her colleagues
1
Although Yu invokes the Ledbetter Act in her first cause of action, that Act relates only
to the timeliness of an equal pay claim and does not provide a separate cause of action. See 42
U.S.C. § 2000e-5(e); Boyar v. City of N.Y., No. 10 Civ. 65 (HB), 2010 WL 4345737, at *5
(S.D.N.Y. Oct. 28, 2010).
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were based in large part on civil service rank and seniority. (Tomari Aff. Ex. D (“Yu Depo.”)
62-64). Because no reasonable fact finder could find for Plaintiff on her EPA claim, this claim is
dismissed.
E. Title VII Claims
Yu also brings Title VII claims against OCA and against Ritondo, alleging gender
discrimination, failure to promote, hostile work environment, and retaliation. Title VII provides
that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any
individual, or otherwise 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). There is no individual liability under Title
VII, however. See Spiegel v Schulmann, 604 F.3d 72, 79 (2d Cir. 2010). Further, a plaintiff may
not bring a Title VII claim against an individual in his or her official capacity if the claim is
duplicative of the claim against the public employer, as it is here. See Emmons v. City Univ. of
N.Y., 715 F. Supp. 2d 394, 410-11 (E.D.N.Y. 2010). Accordingly, Yu’s Title VII claims against
Ritondo must be and are dismissed.
Yu’s Title VII claims against OCA are analyzed under the familiar burden-shifting
framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Under
that framework,
the plaintiff bears the initial burden of establishing a prima facie case of
discrimination. If the plaintiff does so, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for its action. Once such a
reason is provided, the plaintiff can no longer rely on the prima facie case, but
may still prevail if she can show that the employer’s determination was in fact the
result of discrimination.
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Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (internal citations and
quotation marks omitted). Applying that framework here, Yu’s claims fail as a matter of law.
1. Gender Discrimination and Failure to Promote
First, Yu brings claims of gender discrimination and discriminatory failure to promote.
To state a prima facie case of discrimination under Title VII, a plaintiff must show that (1) she is
within a protected class, (2) she was qualified for the position in question, (3) she was subject to
an adverse employment action, and (4) the adverse action occurred under circumstances giving
rise to an inference of discrimination. See, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498
(2d Cir. 2009); see also Aulicino v. N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir.
2009) (explaining that to establish a prima facie case of a discriminatory failure to promote,
“there must be proof that the plaintiff ‘was rejected under circumstances which give rise to an
inference of unlawful discrimination’” (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710
(2d Cir. 1998)). While the burden of establishing a prima facie case is not an onerous one,
Plaintiff cannot meet even this low bar, as there is no evidence whatsoever in the record that
would permit a rational juror to conclude that Ritondo ― or any OCA employee for that matter
― treated Yu differently than her colleagues because of her gender or race.
During her deposition, Plaintiff admitted she could not state with any specificity any
instances in which she was discriminated against: No one at OCA made any references to her
race or ethnicity and, one comment in 2001 (outside the actionable time period) aside, 2 no one
made any disparaging comments about her gender. (Yu Depo. 57-58). When asked if
Defendants discriminated against her because she is Asian, Plaintiff responded: “I felt it, but I
2
Yu testified that when she first began working for Ritondo in 2001, he informed her that
certain users in the court preferred male LAN Administrators. (Yu Depo. 51). This allegation
was not mentioned in Yu’s Complaint.
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cannot really tell enough.” (Id. at 58-59). Plaintiff’s claims, in other words, are based wholly on
her personal opinion and “feeling” that she was not treated with respect due to her race and
gender, which created a “general atmosphere” of discrimination. (Id.). Vague and conclusory
allegations of this sort are patently insufficient to withstand a motion for summary judgment.
See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (“Even in the discrimination
context . . . a plaintiff must provide more than conclusory allegations to resist a motion for
summary judgment.”). Moreover, Defendants have presented evidence of a legitimate,
nondiscriminatory reason for OCA’s denial of Yu’s request for a pay grade reclassification:
Namely, that all other applicants who received reclassifications were acting as supervisors, either
actually or “in effect.” (Ritondo Decl. ¶ 13). Plaintiff has adduced no evidence even suggesting
that this explanation is a pretext. Indeed, the person who received the highest reclassification in
2006 was Mimi Khaine-Wong, an Asian-American woman reclassified to the position of
Associate LAN Administrator at a pay grade of 25. (Ritondo Aff. ¶ 10).
2. Retaliation
Next, Plaintiff alleges that Defendants retaliated against her for complaining about
discrimination at OCA. To establish a prima facie case of retaliation under Title VII, an
employee must show that: (1) she was engaged in a protected activity; (2) the defendant was
aware of the protected activity; (3) she suffered a materially adverse action; and (4) there is a
causal connection between the protected activity and the materially adverse action. See, e.g.,
Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). A material adverse employment
action is one that would deter a reasonable employee from making or supporting a claim of
discrimination. See, e.g., Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, Yu’s retaliation claim cannot survive Defendants’ motion for summary judgment, as there
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is no evidence that she suffered a materially adverse action and no evidence of any causal
connection between protected activity and the allegedly materially adverse action.
Plaintiff has taken four actions that could qualify as protected activities. First, on
May 30, 2006, she sent a letter of complaint to the Chief City Clerk regarding her failure to
receive a promotion. (Yu Decl. ¶ 2 & Ex. D at 3 (¶ 5)). Second, in 2008, Yu complained to her
union and OCA’s Inspector General for Bias Matters. (Yu Decl. ¶ 4 & Ex. D at 4 (¶ B(1))). 3
Third, on September 4, 2009, she filed an EEOC complaint. And fourth, she filed the instant
action on May 12, 2011. Plaintiff alleges that there was a “causal connection between voicing
her opposition to gender discrimination and the Defendants’ repeated, escalating pattern of
selective scrutiny and adverse employment actions,” including: (1) negative performance
reviews; (2) false accusations and criticism about her work ethic; and (3) office relocations to
less desirable locations. (Pl.’s Mem. in Opp’n 9). The evidence before the Court, however,
belies her conclusory assertion that she was subjected to adverse employment actions as a result
of her protected activity.
First, all of Plaintiff’s job performance evaluations have been satisfactory; the comments
attached to the evaluations stating that Yu is “sometimes overly defensive or combative” would
not, by themselves, dissuade a reasonable person from reporting an instance of discrimination.
(See Yu Decl. Ex. B). Similarly, criticisms about Yu’s work ethic and accusations regarding her
interactions with her colleagues are exactly the kind of “trivial harms” that are not likely to deter
a reasonable employee from voicing a complaint. See Rivera v. Rochester Genesee Reg’l
3
In her Rule 56.1 Counterstatement, Plaintiff also alleges that she “made verbal
complaints to Defendant Ritondo about her failure to be promoted and her rate of pay being less
than her counterparts with similar experience and skills.” (Pl.’s 56.1 Counterstatement ¶ 35). As
Plaintiff does not cite to any admissible evidence in support of this contention, the Court does
not credit these statements. See, e.g., Rockland Vending Corp. v. Creen, No. 07 Civ. 6268
(KMK), 2009 WL 2407658, at *14 n.14, *16 (S.D.N.Y. Aug. 4, 2009).
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Transp. Auth., 702 F.3d 685, 698 (2d Cir. 2012) (“Actions that are ‘trivial harms’ — i.e., ‘those
petty slights or minor annoyances that often take place at work and that all employees
experience’ — are not materially adverse.” (quoting Tepperwien v. Entergy Nuclear Operations,
Inc., 663 F.3d 556, 568 (2d Cir. 2011)). As for the office relocations, Yu acknowledged that she
requested office relocations “all the time” and that her supervisors granted her requests for
relocation on numerous occasions, including even after she engaged in the allegedly protected
activities. (Yu Depo. 78; see also Giddens Decl. (Docket No. 27) ¶¶ 2-8 (explaining that Yu
agreed to move offices in October 2011, subsequently complained about the air quality in her
new office, and requested another relocation, which was granted on August 27, 2012)). Based
on the record before the Court, no rationale juror could conclude that Defendants retaliated
against Plaintiff in violation of Title VII and, accordingly, this claim is dismissed.
3. Hostile Work Environment
Plaintiff’s final Title VII claim is that she was subject to a hostile work environment. In
order to establish a hostile work environment in violation of Title VII, a plaintiff must
demonstrate that the “workplace is so severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of her employment were thereby altered.”
Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (internal quotation marks
omitted). The plaintiff must also show “either that a single incident was extraordinarily severe,
or that a series of incidents were sufficiently continuous and concerted to have altered the
conditions of her working environment.” Id. (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560,
570 (2d Cir. 2000)). In determining whether a plaintiff has made a threshold showing, “relevant
factors include ‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
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with an employee’s work performance.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993)). Further, the plaintiff “must also subjectively perceive the environment to be
abusive,” and “must demonstrate that the conduct occurred because of her sex.” Id.
Applying these standards here, Yu’s Title VII hostile work environment claim fails
because no reasonable juror could conclude that Yu was subject to “severe or pervasive”
discriminatory treatment based on her race, ethnicity, or gender. Put simply, the allegedly hostile
conduct ― relating to Yu’s requests for office relocations (see Yu Depo. 66-67, 70-82), and
criticism by her coworkers (id. at 65-66 (“I was constantly like called into the meetings and
criticized about my job . . . .”) ― amounts to no more than petty slights and trivial
inconveniences, which are not actionable under Title VII. See, e.g., McGullam v. Cedar
Graphics, Inc., 609 F.3d 70, 76 (2d Cir. 2010). Accordingly, this claim is also dismissed.
F. Section 1983 Claims
Plaintiff’s remaining federal claims, brought pursuant to Section 1983 against Ritondo in
his individual capacity, must also be dismissed. First, to the extent that these claims seek relief
for gender discrimination, a failure to promote, retaliation, or hostile work environment, they are
without merit for the reasons stated above with respect to her Title VII claims. See Testagrose v.
N.Y.C. Housing Auth., 369 Fed. App’x 231, 231 (2d Cir. 2010) (explaining that discrimination
claims under Section 1983 are “evaluated under the same rubric as gender discrimination claims”
under Title VII (citing Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d
Cir. 2004)). Second, to the extent that Yu brings a First Amendment retaliation claim, she has
failed to proffer sufficient evidence of an adverse employment action or a causal connection
between her complaints and those actions. See Cotarelo v. Vill. of Sleepy Hollow Police Dep’t,
460 F.3d 247, 251 (2d Cir. 2006) (“To survive a motion for summary judgment on a First
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Amendment retaliation claim, the plaintiff must present evidence which shows (1) that the
speech at issue was protected, (2) that he suffered an adverse employment action, and (3) that
there was a causal connection between the protected speech and the adverse employment
action.”). Finally, to the extent that Yu brings a substantive due process claim premised on an
“abuse of . . . authority,” she has failed to allege, let alone show, that Ritondo abused “some
power unique to [his] role as a governmental [official].” Thomas v. N.Y.C. Dep’t of Educ., ― F.
Supp. 2d ― , 2013 WL 1346258, at *16 (E.D.N.Y. Mar. 29, 2013) (internal quotation marks
omitted). Further, Yu has failed to show any actions by Ritondo that “shock the conscience or
interfere with rights implicit in the concept of ordered liberty,” as would be required for her to
prevail on a substantive due process claim. Id. at *17 (citing United States v. Salerno, 481 U.S.
739, 746 (1987)).
G. NYSHRL and NYCHRL Claims
As the Court has dismissed all of Plaintiff’s federal claims, and her non-federal claims
against OCA and Ritondo in his official capacity, all that remains are her NYSHRL and
NYCHRL claims against Ritondo in his individual capacity. Plaintiff’s NYSHRL claims fail for
the same reasons that her Title VII claims fail, as these claims are “analytically identical” and are
governed by “the same standard of proof.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217,
226 n.9 (2d Cir. 2008); see also Zagaja v. Vill. of Freeport, No. 10 Civ. 3660 (JFB) (WDW),
2012 WL 5989657, at *15 n.6 (E.D.N.Y. Nov. 20, 2012) (explaining that NYSHRL claims “are
analyzed using the same framework as claims brought under Title VII”). Defendants have not
asked the Court to dismiss the remaining NYCHRL claims on the merits, but instead ask the
Court to decline to exercise supplemental jurisdiction over them. In light of Defendants’ request,
and the fact that the NYCHRL involves different standards, see Mihalik v. Credit Agricole
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Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (explaining that “even if the
challenged conduct is not actionable under federal and state law, federal courts must consider
separately whether it is actionable under the broader New York City standards”), the Court
declines to exercise supplemental jurisdiction over the pendent NYCHRL claims and dismisses
them. See, e.g., Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006); see also,
e.g., Vuona v. Merrill Lynch & Co., Inc., No. 10 Civ. 6529 (PAE), 2013 WL 271745, at *28
(S.D.N.Y. Jan. 24, 2013) (granting summary judgment on federal employment discrimination
claims and declining to exercise supplemental jurisdiction over NYCHRL claims in part because
the NYCHRL requires application of a standard “with which the [New York] state courts are
more familiar”).
CONCLUSION
For the reasons set forth above, Defendants’ motion for summary judgment (Docket No.
23) is GRANTED and Plaintiff’s Complaint is dismissed in its entirety.
The Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: July 12, 2013
New York, New York
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