Caban v. The City of New York et al
Filing
36
OPINION AND ORDER: Defendants motion is granted as to all claims against the City of New York, as well as claim one (breach of contract), claim two against CUNY (NYCHRL), claim three against CUNY (NYSHRL), claim four against Rafferty (Title VII), and claim five (section 1983). The motion is denied for claim four (Title VII) against CUNY and claims two and three (NYSHRL and NYCHRL) against Rafferty in his personal capacity. The Clerk of the Court is directed to close this motion [Docket No. 14]. A conference is scheduled for December 10, 2012 at 4:30 p.m. (Signed by Judge Shira A. Scheindlin on 11/30/2012) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
WANDA E. CABAN,
Plaintiff,
OPINION AND ORDER
- against
11 Civ. 3417 (SAS)
THE CITY OF NEW YORK; CITY
UNIVERSITY OF NEW YORK
BOROUGH OF MANHATTAN
COMMUNITY COLLEGE; ROBERT
RAFFERTY,
Defendants.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Wanda Caban has sued the City of New York (the "City"), the City
University of New York ("CUNY") Borough of Manhattan Community College
("BMCC"), and Robert Rafferty, alleging violations of Title VII of the Civil Rights
Act of 1964, as amended ("Title VII"),] state and city human rights laws, 42 U.S.C.
§ 1983, and breach of her union contract. Caban alleges that Rafferty, her former
supervisor at BMCC, discriminated against her based on her race and national
origin and unlawfully retaliated against her. All defendants now move for
42 U.S.C. § 2000e, et seq.
1
summary judgment. The motion is denied in part and granted in part.
II.
BACKGROUND
From 2004 to 2010, Caban was an employee at the BMCC.2 In 2010,
she began working as an assistant purchasing agent,3 and in June of that year
Rafferty was hired as her immediate supervisor.4 Caban testified at deposition that
Rafferty initially treated her kindly and was attentive to her needs.5 However,
Caban described a brief, race-related conversation she had with Rafferty shortly
after he arrived. When Rafferty heard Caban speaking Spanish, he asked her race
and if she was related to a Portugese colleague.6 She responded that she was
Puerto Rican and not related to the Portugese colleague.7
Caban testified that after that conversation, Rafferty’s behavior toward
her changed markedly. Caban and others testified that Rafferty spoke to Caban in
2
See Deposition of Wanda Caban (“Caban Dep.”) at 82:2-25, Ex. 11 to
Declaration of Robert Dembia in Opposition to Motion for Summary Judgment
(“Dembia Dec.”).
3
See BMCC Building and Grounds Organizational Chart (“Org.
Chart”), Ex. 18 to Dembia Dec.
4
See Defendants’ Rule 56.1 Statement (“Def. 56.1”) ¶¶ 3-4.
5
See Caban Dep. at 23:12-25.
6
See id. at 48:18-50:6; Deposition of Robert Rafferty (“Rafferty Dep.”)
at 91:13 (discussing Portugese colleague), Ex. 14 to Dembia Dec.
7
See Caban Dep. at 50:2.
2
an accusatory and agitated manner,8 changed her job description several times,9
deprecated her work quality to supervisors,10 and told other employees not to speak
with her.11 Rafferty, however, testified that his conduct was warranted based on
Caban’s work performance.12 But a co-worker, Raisse Lopez, testified to the
timing of Rafferty’s more aggressive demeanor: “I guess after he found out she
was Puerto Rican, he really didn’t care for her too much.”13
Caban also described a tense encounter with Rafferty directly after she
filed an internal discrimination claim. Rafferty allegedly told her to drop her
complaint, called her incompetent “several times,” and told her to drop the charges
because “[she didn’t] want to be involved in ‘litigation’ with him.”14 Rafferty’s
8
See id. at 26, 80.
9
See Deposition of Elena Samuels (Assistant to the Vice President of
Finance) (“Samuels Dep.”) at 93-94, 96, Ex. 19 to Dembia Dec.
10
See Rafferty Dep. at 194:12-15.
11
See Samuels Dep. at 94 (describing Rafferty’s request that certain
employees not speak with Caban and that Caban not speak with these employees).
12
See Rafferty Dep. at 147.
13
Deposition of Raissa Lopez (a co-worker) (“Lopez Dep.”) at 28 (“I
could see how indifferent he was with her . . . . He would sort of like try to make
her feel . . . like nothing, she’s stupid.”), Ex. 10 to Dembia Dec.
14
Affidavit of Wanda Caban (“Caban Aff.”) ¶ 4; Caban Dep. at 52:15.
3
overall conduct produced an effect upon Caban.15 She described panic attacks,
anxiety, and stress.16 Caban eventually applied for, and was transferred to, a
similar job at the College of Staten Island, which pays seven thousand dollars less
annually.17 After Caban’s departure, in November of 2011, Rafferty was
terminated because of “[c]oncerns with how [he] relate[d] to [his] subordinates and
co-workers” and his behavior during a November 2011 staff meeting.18 On May
19, 2011, Caban filed the instant case.
The Comptroller of the City of New York sent a notice to Caban
requesting her appearance for a General Municipal Law 50-h hearing (“50-h
Hearing”) on June 23, 2011.19 The hearing was subsequently postponed to
November 29, 2011.20 Caban did not appear at this hearing. She did, however,
comply with the Equal Employment Opportunity Commission (“EEOC”)
15
See Caban Dep. at 46.
16
See id.
17
See id. at 27-29.
18
See 11/16/11 Letter from Antonio Perez (President of BMCC) to
Rafferty, Ex. 5 to Dembia Dec.
19
See 6/6/11 Adjourned 50-h Hearing Notice (“6/6/11 50-h Notice”),
Ex. J to Declaration of Daniel Chiu in Support of Motion for Summary Judgment
(“Chiu Dec.”).
20
See 10/26/11 Adjourned 50-h Hearing Notice (“10/26/11 50-h
Notice”), Ex. J to Chiu Dec.
4
requirements and received a right-to-sue letter on March 31, 2011.21
III.
LEGAL STANDARD
Summary judgment in defendants’ favor is appropriate only if they
show “that there is no genuine dispute as to any material fact and [that they are]
entitled to judgment as a matter of law.”22 “An issue of fact is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party. A fact is material if it might affect the outcome of the suit.”23
Because they are moving for summary judgment, defendants “bear[]
the burden of establishing the absence of any genuine issue of material fact.”24 To
defeat defendants’ motions, plaintiffs “‘must do more than simply show that there
is some metaphysical doubt as to the material facts,’”25 and “may not rely on
conclusory allegations or unsubstantiated speculation.”26
21
See 3/31/11 EEOC Notice of Right to Sue, Ex. 1 to Complaint.
22
Fed. R. Civ. P. 56(a).
23
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d
Cir. 2010).
24
Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).
25
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
26
Id.
5
In deciding summary judgment motions, courts 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[s].”27 However,
“‘[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’”28
“The role of the court is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.”29
Summary judgment may be proper even in workplace discrimination
cases, which tend to be very fact-intensive, because “the salutary purposes of
summary judgment—avoiding protracted, expensive and harassing trials—apply
no less to discrimination cases than to other areas of litigation.”30 However,
greater caution must be exercised in granting summary judgment in employment
discrimination cases where the employer’s intent is genuinely at issue and
circumstantial evidence may reveal an inference of discrimination.31 This is so
27
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011).
28
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
(emphasis removed).
29
Brod, 653 F.3d at 164.
30
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
31
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
6
because “[e]mployers are rarely so cooperative as to include a notation in the
personnel file that the [adverse employment action] is for a reason expressly
forbidden by law.”32 Nonetheless, “[c]ourts within the Second Circuit have not
hesitated to grant defendants summary judgment in such cases where . . . plaintiff
has offered little or no evidence of discrimination.”33
It is incumbent upon courts to “distinguish between evidence that
allows for a reasonable inference of discrimination and evidence that gives rise to
mere speculation and conjecture.”34 “[M]ere conclusory allegations, speculation or
conjecture will not avail a party resisting summary judgment.”35 Thus, “even in
the discrimination context, a plaintiff must provide more than conclusory
allegations of discrimination to defeat a motion for summary judgment.”36
IV.
APPLICABLE LAW
32
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)
(quotation marks and citation omitted, brackets in original).
33
Alphonse v. State of Connecticut Dep’t of Admin. Servs., No. 3:02 CV
1195, 2004 WL 904076, at *7 (D. Conn. Apr. 21, 2004) (quotation marks and
citation omitted). Accord Meiri, 759 F.2d at 997-98; Woroski v. Nashua Corp., 31
F.3d 105, 109-10 (2d Cir. 1994).
34
Bickerstaff, 196 F.3d at 448. Accord Cameron v. Community Aid for
Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003).
35
Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996)
(alteration in original).
36
Schwapp, 118 F.3d at 110.
7
A.
TITLE VII
1.
Disparate Treatment Discrimination
Title VII proscribes discrimination against or termination of an
individual on the basis of “race, color, religion, sex, or national origin.”37 “To
withstand a motion for summary judgment, a discrimination plaintiff must
withstand the three-part burden-shifting [analysis] laid out by McDonnell Douglas
Corp. v. Green.”38 “Under this framework a plaintiff must first establish a prima
facie case of discrimination.”39 To do so, a plaintiff must show: “(1) [s]he is a
member of a protected class; (2) [s]he was qualified for the position [s]he held; (3)
[s]he suffered an adverse employment action; and (4) the adverse action took place
under circumstances giving rise to [an] inference of discrimination” based on her
membership in the protected class.40
An adverse employment action is an action by which a plaintiff “has
suffered ‘a materially adverse change in h[er] employment status’ or in the terms
37
42 U.S.C. § 2000e-2.
38
McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 215 (2d
Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
39
Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
40
Id. at 492.
8
and conditions of h[er] employment.”41 Examples of adverse employment actions
include “a termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, [or]
significantly diminished material responsibilities.”42 “To be ‘materially adverse’ a
change in working conditions must be ‘more disruptive than a mere inconvenience
or an alteration of job responsibilities.’”43 “[A]lthough reprimands and close
monitoring may cause an employee embarrassment or anxiety, such intangible
consequences are not materially adverse alterations of employment conditions.”44
“Courts have held that negative evaluations . . . without any accompanying adverse
results, are not cognizable.”45 “[B]eing yelled at, receiving unfair criticism,
receiving unfavorable schedules or work assignments . . . do not rise to the level of
adverse employment actions . . . because they [do] not have a material impact on
41
Kessler, 461 F.3d at 207 (quoting Williams v. R.H. Donnelley, Corp.,
368 F.3d 123, 128 (2d Cir. 2004)).
42
Id. (quotation marks and citation omitted).
43
Kassner v. Second Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir.
2007) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2001)).
44
Morrison v. Potter, 363 F. Supp. 2d 586, 591 (S.D.N.Y. 2005)
(quotation marks and citations omitted).
45
Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y.
2001). Accord White v. Fuji Photo Film USA, Inc., 434 F. Supp. 2d 144, 152
(S.D.N.Y. 2006).
9
the terms and conditions of . . . employment.”46 Courts require actions that are
more significant and permanent.47 It is well-established that Title VII “‘does not
set forth a general civility code for the American workplace.’”48
If plaintiff succeeds in establishing a prima facie case, then the burden
shifts to the employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action.49 Finally, if the employer articulates a nondiscriminatory reason for the challenged action, the burden shifts back to the
plaintiff to demonstrate that defendants’ explanation was pretextual.50
2.
Hostile Work Environment
An employee seeking to bring a hostile work environment claim must
demonstrate the following: (1) she is a member of a protected class; (2) she
46
Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005)
(quotation marks and citations omitted).
47
See Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (holding that
there is no cause of action to “vindicate an employee’s trivial complaints about an
unpleasant working environment”); Bennett, 136 F. Supp. 2d at 245 (holding that
plaintiff’s alleged underutilization did not rise to the level of an actionable adverse
employment action).
48
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 76 (2d Cir. 2010)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Accord Kaytor v. Electric Boat Corp., 609 F.3d 537, 546 (2d Cir. 2010).
49
See Ruiz, 609 F.3d at 492.
50
See id.
10
suffered unwelcome harassment; (3) she was harassed because of her membership
in a protected class; and (4) the harassment was sufficiently severe or pervasive to
alter the conditions of employment and create an abusive work environment.51
In order to prevail on a hostile work environment claim, a
plaintiff must make two showings: (1) that “the harassment
was sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment” and (2) that there is a “specific basis for
imputing the conduct creating the hostile work environment
to the employer.”52
Evaluating a hostile environment involves reviewing the totality of the
circumstances including “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 with an employee’s work performance.”53
The question is whether a reasonable person would have found the environment to
be hostile (objective prong) and if the plaintiff perceived it as such (subjective
prong).54 “[A] plaintiff need not show that her hostile working environment was
51
See Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567,
584 (S.D.N.Y. 2008).
52
Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quoting Feingold
v. New York, 366 F.3d 138, 149-50 (2d Cir. 2004)).
53
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
54
See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir.
2004).
11
both severe and pervasive; only that it was sufficiently severe or sufficiently
pervasive, or a sufficient combination of these elements, to have altered her
working conditions.”55
3.
Retaliation
“Title VII also makes it unlawful for an employer to discriminate
against an employee ‘because [she] has opposed any practice made an unlawful
employment practice by this subchapter, or because [she] has made a charge . . . in
an investigation, proceeding, or hearing under this subchapter.’”56 To establish a
prima facie case of retaliation, plaintiff must show: “(1) that she participated in an
activity protected by Title VII, (2) that her participation was known to her
employer, (3) that her employer thereafter subjected her to a materially adverse
employment action, and (4) that there was a causal connection between the
protected activity and the adverse employment action.”57 An adverse employment
action in the context of a Title VII retaliation claim is an action sufficiently severe
to dissuade a reasonable worker from making or supporting a claim of
55
Pucino v. Verizon Wireless Commc’ns, 618 F.3d 112, 119 (2d Cir.
2010) (emphasis in original).
56
Kaytor, 609 F.3d at 552 (quoting 42 U.S.C. § 2000e-3(a)).
57
Id.
12
discrimination.58 “Title VII’s anti-discrimination and anti-retaliation provisions
‘are not coterminous;’ anti-retaliation protection is broader and ‘extends beyond
workplace-related or employment-related retaliatory acts and harm.’”59
“Proof of causation can be shown either: (1) 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; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff
by the defendant.”60
The three-step McDonnell Douglas burden-shifting analysis also
applies to retaliation claims.61 “At the summary judgment stage, if the plaintiff
presents at least a minimal amount of evidence to support the elements of the
claim, the burden of production shifts to the defendant to proffer a legitimate nonretaliatory reason for the adverse employment action.”62 “If the employer produces
such evidence, the employee must, in order to avoid summary judgment, point to
evidence sufficient to permit an inference that the employer’s proffered non58
See Burlington N., 548 U.S. at 68.
59
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington
N., 548 U.S. at 67).
60
Id. at 170 (quoting Gordon v. New York City Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)).
61
See Kaytor, 609 F.3d at 552.
62
Id. at 552-53.
13
retaliatory reason is pretextual and that retaliation was a ‘substantial reason for the
adverse employment action.’”63
B.
Section 1983
Section 1983 “does not create a federal right or benefit; it simply
provides a mechanism for enforcing a right or benefit established elsewhere.”64
“The purpose of [section]1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.”65 In order to state a claim under section
1983, a plaintiff must show that the conduct complained of was committed by a
person or entity acting under color of state law and that the conduct deprived a
person of rights, privileges, or immunities secured by the Constitution.66
For a person deprived of a constitutional right to have recourse against
63
Id. at 553 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,
173 (2d Cir. 2005)).
64
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423
F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne cannot
go into court and claim a ‘violation of § 1983’ – for § 1983 by itself does not
protect anyone against anything.’”) (quoting Chapman v. Houston Welfare Rights
Org., 441 U.S. 600, 617 (1979)).
65
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
66
See Palmieri v. Lynch, 932 F.3d 73, 78 (2d Cir. 2004).
14
a municipality under section 1983, he or she must show harm that results from an
identified municipal “policy,” “custom,” or “practice.”67 In other words, a
municipality may not be found liable simply because one of its employees or
agents is guilty of some wrongdoing.68 Moreover, a policy, custom, or practice
generally cannot arise from a single instance of unconstitutional conduct by an
employee of the municipality.69
In the absence of an established written municipal policy, plaintiff
must prove that a municipal practice was “so persistent and widespread as to
practically have the force of law”70 or that a practice or custom of subordinate
employees was “so manifest as to imply the constructive acquiescence of senior
67
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978).
68
See Board of County Comm’rs v. Brown, 520 U.S. 397, 402 (1997).
69
See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“Plaintiffs
who seek to impose liability on local governments under § 1983 must prove that
‘action pursuant to official municipal policy’ caused their injury.”) (citation
omitted); Tuttle, 471 U.S. at 831 (Brennan, J., concurring in part and concurring in
the judgment) (“[T]o infer the existence of a city policy from the isolated
misconduct of a single, low-level officer, and then to hold the city liable on the
basis of that policy, would amount to permitting precisely the theory of strict
respondeat superior liability rejected in Monell.”).
70
Connick, 131 S. Ct. at 1354.
15
policy-making officials.”71
C.
New York State Human Rights Law
The New York State Human Rights Law (“NYSHRL”) provides, in
relevant part: “It shall be an unlawful discriminatory practice . . . [f]or an
employer . . . because of an individual’s age, race . . . national origin . . . [or] sex . .
. to discharge from employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges of employment.”72
“The standards for recovery under New York State’s Human Rights Law . . . are in
accord with Federal standards under [T]itle VII of the Civil Rights Act of 1964.”73
In addition, discrimination claims under the NYSHRL and the New York City
Human Rights Law (NYCHRL”) are subject to the same “burden-shifting
framework that the Supreme Court articulated in McDonnell Douglas” for Title
VII claims.74 Yet unlike Title VII, liability under the NYSHRL “may be imposed
71
Sorlucco v. New York City Police Dep’t, 971 F.2d 864, 871 (2d Cir.
1992).
72
N.Y. Exec. Law § 296(1)(a).
73
McQueen-Starling v. UnitedHealth Group, Inc., No. 08 Civ. 4885,
2010 WL 768941, at *5 (S.D.N.Y. Mar. 8, 2010) (quoting Ferrante v. American
Lung Ass’n, 90 N.Y.2d 623, 629 (1997)).
74
Campbell v. Cellco P'ship, 860 F. Supp. 2d 284, 294-96 (S.D.N.Y.
2012) (citations omitted). Accord Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.
2010).
16
on individuals.”75
D.
New York City Human Rights Law
The NYCHRL provides, in relevant part, as follows:
It shall be an unlawful discriminatory practice . . . [f]or an
employer or an employee or agent thereof, because of the
actual or perceived age, race . . . national origin, [or] gender
[ . . . ] of any person, to [ . . . ] discharge from employment
such person or to discriminate against such person in
compensation or in terms, conditions or privileges of
employment.76
“City HRL claims have typically been treated as coextensive with
state and federal counterparts. However, the New York City Council has rejected
such equivalence.”77 By means of the Local Civil Rights Restoration Act of 2005
(“Restoration Act”),78 the City Council “confirm[ed] the legislative intent to
abolish ‘parallelism’ between the City HRL and federal and state antidiscrimination law.”79 The NYCHRL must be construed “independently from
75
Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012).
76
N.Y.C. Admin. Code § 8-107(1)(a).
77
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.
2009).
78
N.Y.C. Local Law No. 85 (2005).
79
Loeffler, 582 F.3d at 278.
17
similar or identical provisions of New York state or federal statutes.”80
“Interpretations of New York state or federal statutes with similar wording may be
used to aid in interpretation of New York City Human Rights Law, viewing
similarly worded provisions of federal and state civil rights laws as a floor below
which the City’s Human Rights law cannot fall.”81 “‘As a result of [the Restoration
Act], the City HRL now explicitly requires an independent liberal construction
analysis in all circumstances, even where state and federal civil rights laws have
comparable language.’”82 In stating a retaliation claim under NYCHRL, plaintiff
need not establish that an adverse employment action was materially adverse. She
need only establish that the action was “reasonably likely to deter a person from
engaging in a protected activity.”83
E. Qualified Immunity
The doctrine of qualified immunity “shields federal and state officials
from money damages unless a plaintiff [can show] (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’ at
80
Local Law 85, § 1.
81
Id.
82
Loeffler, 582 F.3d at 278 (quoting Williams v. New York City Hous.
Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009)).
83
Williams, 872 N.Y.S.2d at 34.
18
the time of the challenged conduct.”84 It is “a defense afforded only to individuals
– not municipalities or municipal agencies.”85 “[A]n official sued in his official
capacity may not take advantage of a qualified immunity defense.”86
There are three steps in a qualified immunity analysis. The court first
must determine whether, “taken in the light most favorable to the party asserting
the injury . . . the officer’s conduct violated a constitutional right . . . .”87 Next, the
court asks whether or not, at the time of the violation, the law prohibiting the
conduct in question was clearly established.88 “Clearly established” means: “(1)
the law is defined with reasonable clarity, (2) the Supreme Court or Second Circuit
has recognized the right, and (3) ‘a reasonable defendant [would] have understood
from the existing law that [his] conduct was unlawful.’”89 If the law prohibiting
84
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Accord Velez v. Levy, 401 F.3d 75, 100 (2d
Cir. 2005).
85
Williams v. City of Mount Vernon, 428 F. Supp. 2d 146, 153 n.2
(S.D.N.Y. 2006).
86
Mitchell v. Forsyth, 472 U.S. 511, 556 n.10 (1985) (Brennan, J.,
concurring in part and dissenting in part) (citing Brandon v. Holt, 469 U.S. 464,
472-73 (1985)).
87
Saucier v. Katz, 533 U.S. 194, 201 (2001).
88
See id.
89
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (quoting Young
v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)) (alterations in original).
19
defendant’s conduct was clearly established, the court moves to the final step in the
analysis, which asks whether or not “‘it was objectively reasonable for [the
defendant] to believe that his actions were lawful at the time of the challenged
act.’”90 An official’s conduct is objectively unreasonable, and not eligible for
qualified immunity, “when no officer of reasonable competence could have made
the same choice in similar circumstances.”91
Qualified immunity under New York common law is similar,
“grant[ing] government officials qualified immunity in state-law claims except
where the officials’ actions are undertaken in bad faith or without a reasonable
basis.”92 To be entitled to qualified immunity under state law, it must be
“objectively reasonable for the [government officers] involved to believe that their
conduct was appropriate under the circumstances, or that officers of reasonable
competence would disagree as to whether their conduct was proper.”93
Accord Ashcroft, 131 S. Ct. at 2083.
90
Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir. 2003)
(quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)).
91
Id. at 138 (quotation marks omitted).
92
Bermudez v. City of New York, 783 F. Supp. 2d 560, 580 (S.D.N.Y.
2011) (citing Blouin ex rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 364 (2d Cir.
2004)).
93
Id. (citing Allen v. City of New York, No. 03 Civ. 2829, 2007 WL
24796, at *24 (S.D.N.Y. Jan. 3, 2007)).
20
V.
DISCUSSION
A. Claims Against the City of New York Are Dismissed
Plaintiff concedes that her claims against the City of New York are
“not supportable.”94 All claims against the City of New York are dismissed with
prejudice.
B. Federal Law Claims
1. Title VII Claim Against Rafferty
Plaintiff concedes that the Title VII claim against Rafferty is “not
supportable.”95 This claim is dismissed with prejudice.
2. Title VII Claims Against CUNY
a. Disparate Treatment
Caban has proffered sufficient evidence to create a material issue of
fact on all four of the McDonnell-Douglas unlawful discrimination prongs.96 First,
defendants do not contest Caban’s assertion that she is Puerto Rican and that
94
Plaintiff’s Memorandum of Law in Opposition to the Motion for
Summary Judgment (“Pl. Mem.”) at 3.
95
Id. at 3. See also Lore, 670 F.3d at 169 (“Title VII does not impose
liability on individuals.”).
96
See Stratton v. Department for the Aging for City of New York, 132
F.3d 869, 879 (2d Cir. 1997) (discussing how to present a prima facie case for
unlawful discrimination under McDonnell).
21
Hispanics are a protected class under Title VII. Second, there is a genuine issue of
material fact as to whether Caban was performing her job satisfactorily. Facts
tending to show satisfactory job performance include her prior upward career
trajectory at CUNY,97 her positive job evaluations,98 and positive comments from
her colleagues about her work.99 Testimony critical of Caban’s work product
comes almost exclusively from Rafferty. The quality of Caban’s job performance
presents a material issue of fact to be determined by the finder of fact.
Third, there is a genuine issue of material fact as to whether Caban
suffered an adverse employment action. Plaintiff and defendants cite conflicting
deposition testimony describing the extent to which Caban’s job duties changed
and the extent of Rafferty’s involvement.100 Elena Samuels, Assistant to the Vice
President of Finance, testified that Rafferty was heavily involved in increasing
Caban’s job duties.101 Samuels stated that Rafferty
asked us to change [the job description]. So we made the changes.
And they were going back and forth several times. . . . But I
97
See Caban Dep. 82:6-7.
98
See BMCC Probationary and Service Report, Ex. 22 to Dembia Dec.
99
See Deposition of Roy Montgomery at 117:5-8, Ex. 13 to Dembia
Dec.; Lopez Dep. at 43:4-8.
100
Compare Rafferty Dep. at 137:22-24, with Samuels Dep. at 96:4-14.
101
See Samuels Dep. at 96:4-14.
22
remember he complained many times that he didn’t like it, and it
should be different, so we reworked it several times.102
Samuels then described how Rafferty “asked us to make it more gentle on
[Caban’s successor Patricia Ashford].”103 Examined in light of Rafferty’s other
conduct toward Caban, a reasonable jury could conclude that the change in job
description was intended to make Caban’s job more difficult and encourage her to
seek other employment. And based on Caban’s departure, it appears that this tactic
was successful.
Fourth, the circumstances surrounding Rafferty’s behavior give rise to
an inference of discrimination, and a reasonable juror could find that
discriminatory intent underpinned Rafferty’s behavior. Caban describes how
Rafferty stopped in his tracks when he heard her speaking Spanish,104 immediately
thereafter emailed Caban asking whether she was related to Wally Caban (who
Rafferty believed was Portugese),105 and then asked Caban her race.106 It was at
102
Id.
103
Id. at 99:14-16.
104
See Caban Dep. at 49:4-5.
105
See id. at 49:12-15; Rafferty Dep. at 91:13 (mentioning Portugese
colleague).
106
See Caban Dep. at 50:2-3.
23
that time that Caban noticed the change in Rafferty’s behavior.107 And while a
plaintiff’s own testimony can be sufficient, at least one other employee also
noticed that Rafferty’s behavior toward Caban changed after this incident.108
Given these facts, there is a genuine issue as to whether Rafferty’s behavior was
motivated by discriminatory intent.109 Accordingly, Caban’s Title VII claim
against CUNY based on disparate treatment may proceed.
b. Hostile Work Environment
A Title VII claimant may prove an adverse employment action by
either showing direct discrimination or by demonstrating a hostile work
environment.110 I now briefly review the facts that allow Caban to proceed on a
hostile work environment claim.
When examining whether a hostile workplace exists, courts must
107
See id. at 50:14.
108
See Lopez Dep. at 28.
109
A genuine issue of fact arises even without considering Rafferty’s
November 2008 Long Island Advance letter to the editor, in which he bemoans
athletic facilities “overrun by immigrant adults,” the loss of jobs to “immigrant[s]
who will do the same job for much less,” and how these immigrants “put[] the
taxpaying worker at a disadvantage.” Letter to the Editor at 2-3, Ex. 6 to Dembia
Dec.
110
See Robles v. Cox & Co., Inc., 154 F. Supp. 2d 795, 802 (S.D.N.Y.
2001).
24
consider the totality of the circumstances, including a reasonable person’s view
(the objective prong) as well as the victim’s subjective perspective.111 If Caban’s
work performance was satisfactory – which remains a disputed issue of fact – then
Rafferty’s work-related criticisms, job description modifications, negative
comments to Caban’s superiors, and aggressive demeanor were arguably
unjustified. They substantially changed Caban’s work environment and certainly
amounted to more than the mere “isolated remarks or occasional episodes” that
courts have found to be insufficient.112 Lopez also noticed Rafferty’s continued
demeaning conduct toward Caban.113 As a result of this, Caban testified that she
suffered from depression, panic attacks, and anxiety, with the last condition
verified by her treating physician.114 The facts – from both an objective and
subjective viewpoint – could support a finding that Rafferty’s conduct was
sufficiently pervasive and sustained as to create a hostile work environment.
c. Employer Liability
111
See Harris, 510 U.S. at 23; Father Belle Cmty. Ctr. v. New York State
Div. of Human Rights on Complaint of King, 642 N.Y.S.2d 739, 744-45 (1996).
112
Father Belle Cmty. Ctr., 642 N.Y.S.2d at 744-45 (citing Harris, 510
U.S. at 23).
113
See Lopez Dep. at 28.
114
See Caban Dep. at 44:11-45:25, 47:5-49:17. See also 7/22/10 Note
from Doctor Shaikh Hasan, Ex. 7 to Dembia Dec.
25
Conduct creating a hostile work environment must be imputed to the
employer in order to find employer liability.115 “[A]n employer will be liable if the
supervisor uses ‘his actual or apparent authority to further the harassment, or if [the
supervisor] was otherwise aided in accomplishing the harassment by the existence
of the agency relationship.’”116 In addition to speaking loudly and aggressively,
Rafferty’s other actions toward Caban all involved the use of his authority as a
supervisor: including his modification of her job description, his order for her not
to speak to any other supervisors or administrators, and his critical evaluation of
her work to her superiors. Because Rafferty was the “highest” supervisor on the
building and grounds department hierarchy,117 his actions toward Caban involved
apparent or actual use of his position and authority. Thus, Caban’s Title VII claim
against CUNY based on a hostile work environment may proceed.
d. Retaliation Claim
115
See Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (citing
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986)), abrogated on other
grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998). Liability
for disparate treatment by a supervisor is always imputed to the employer where
there is an adverse employment action. See Kotcher v. Rosa & Sullivan Appliance
Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992).
116
Id. (quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.
1994)).
117
See Org. Chart, Ex. 8 to Dembia Dec.
26
Caban has produced sufficient facts to make out a prima facie case for
unlawful retaliation under Title VII.118 First, her complaint regarding Rafferty’s
behavior was a protected activity under Title VII. Second, Rafferty’s repeated
demands that she withdraw her complaint demonstrate that he knew about it.119
Third, testimony from Caban and Samuels creates a genuine issue of fact as to
whether Caban suffered an adverse employment action. Caban testified about
changes in her job duties and workload following her complaint, in addition to
Rafferty’s multiple requests for her to withdraw the complaint.120 Samuels testified
about Rafferty’s role in changing Caban’s job description, although she was not
specific as to the nature of the changes or the timing.121 Fourth, Rafferty’s
behavior after learning of Caban’s complaint gives rise to the inference that there is
a causal connection between Caban’s complaint and Rafferty’s actions toward her.
After learning of Caban’s complaint, Rafferty called her into his office, told her to
drop the complaint, and criticized her work.122 According to Caban, this
118
See Burlington N., 548 U.S. at 68 (discussing four elements of prima
facie case of retaliation).
119
See Caban Dep. at 52.
120
See Caban Aff. at 6; Caban Dep. at 52-55.
121
See Samuels Dep. at 94-101 (raising a genuine issue as to whether any
changes in job description were retaliatory in nature).
122
See Caban Dep. at 52.
27
conversation occurred shortly before Columbus Day weekend of 2010.123 Rafferty
also gave Caban an additional page of her new job description shortly before that
weekend.124 Rafferty’s repeated requests for Caban to withdraw her complaint,
coupled with the timing of his job description modifications, create a genuine issue
of fact as to the retaliation claim that cannot be resolved at the summary judgment
stage. Thus, Caban’s Title VII claim against CUNY based on retaliation may
proceed.
3. Section 1983 Claim
Plaintiff neither alleges specific facts nor provides admissible
evidence of a racially discriminatory policy or practice at CUNY. Plaintiff also
fails to allege an underlying constitutional violation. Based on the absence of a
constitutional violation by a state actor, no reasonable juror could find the
existence of the type of widespread practice needed to impose liability under
section 1983.125 Summary judgement therefore is granted on Caban’s section 1983
claim.
C. City and State Law Claims
123
See id.
124
See Caban Aff. at 7.
125
See Board of County Comm’rs, 520 U.S. at 402.
28
1. Caban’s Failure to Appear at Her 50-h Hearing Requires
Dismissal of City and State Discrimination Claims Against CUNY
Caban failed to appear at her November 29, 2011 50-h hearing.126
Absent good cause for her failure to attend, the city and state law claims against
CUNY must be dismissed.127
Plaintiff argues that the New York State Comptroller must demand a
50-h examination for employees of community colleges and that the New York
City Comptroller’s letter was therefore insufficient.128 However, section 6224(1)
of the Education Law explicitly states that the section 6224 provisions requiring a
state comptroller demand do not apply to community colleges of CUNY.129
126
See 10/26/11 50-h Notice, Ex. J to Chiu Dec.; Def. Mem. at 16.
Caban does not contest (1) defendants’ assertion that she failed to appear at her
hearing or (2) the statement in the 10/26/11 50-h Notice that asserts that she failed
to appear on her original hearing date. See also Transcript of 11/26/12 telephone
conference at 9:19-21 (conceding that no good cause existed for plaintiff’s absence
at second 50-h hearing).
127
See Kemp v. County of Suffolk, 878 N.Y.S.2d 135, 136 (2009); Perez
v. City of New York, 856 N.Y.S.2d 502 (Sup. Ct. N.Y. Co. 2008). Both the
NYSHRL and the NYCHRL either mirror Title VII case law or provide a more
liberal standard. See Campbell, 860 F. Supp. 2d at 294-96 (describing how
NYCHRL employs a “liberal construction analysis”). Therefore, the city and state
discrimination claims would survive if Caban had timely complied with the 50-h
hearing requirements.
128
See Pl. Mem. at 7-8 (citing N.Y. Educ. Law § 6224(5)-(6)).
129
See N.Y. Educ. Law § 6224(1) (“The provisions of subdivisions four,
five and six of this section shall not apply to such actions and proceedings” based
29
Moreover, “claims against the community colleges of CUNY are governed by §§
50–e & 50–i of New York’s General Municipal Law, suggesting that the
municipality of the City of New York is responsible for paying any judgments
rendered against CUNY’s community colleges.”130 This relationship between
CUNY and the City makes the City Comptroller’s 50-h hearing request a sufficient
demand on behalf of CUNY and BMCC. Furthermore, no section of the 50-h
hearing demand letter indicated that it applied only to Caban’s claims against the
City of New York.131
Caban has not asserted any good cause for missing her 50-h
hearing.132 As a result, her NYCHRL and NYSHRL claims against CUNY – and
on a cause of action “involving a community college of the city university of New
York or an officer, agent, servant or employee of such community college acting in
the course of his employment.”).
130
Hester-Bey v. New York City Technical Coll., No. CV-98-5129, 2000
WL 488484, at *3 (E.D.N.Y. Mar. 22, 2000).
131
See 6/6/11 50-h Notice, Ex. J to Chiu Dec.
132
See Kemp, 878 N.Y.S.2d at 136 (requiring “sufficient reason or . . .
exceptional circumstances”); De Gregorio v. Niagara Falls City Sch. Dist., 722
N.Y.S.2d 637 (2001) (“Where, as here, claimants fail to comply with a demand for
examinations, a municipality may move to dismiss any subsequently commenced
action based upon that failure [citation]. It is at that point that claimants’ reasons
for failing to comply with the demand should be asserted and the validity of the
reason assessed by the court.”).
30
against Rafferty in his official capacity – are dismissed.133
2. City and State Discrimination Claims May Proceed Against
Rafferty in His Individual Capacity
The claim and examination rights in section 50-e and 50-h belong to
CUNY.134 Therefore, failure to comply with section 50-h does not preclude claims
against Rafferty in his individual capacity.
3. Rafferty Is Not Entitled to Qualified Immunity
Examining the facts in the light most favorable to the plaintiff, a
reasonable juror could find that Rafferty changed his behavior towards Caban,
133
See Perez, 856 N.Y.S.2d at 502 (holding that plaintiff must comply
with 50-h hearing demand in order to file suit). The 50-h requirements do not
require dismissal of the federal civil rights claims. See Felder v. Casey, 487 U.S.
131, 153 (1988) (“A state law that conditions that right of recovery upon
compliance with a rule designed to minimize governmental liability, and that
directs injured persons to seek redress in the first instance from the very targets of
the federal legislation, is inconsistent in both purpose and effect with the remedial
objectives of the federal civil rights law. Principles of federalism, as well as the
Supremacy Clause, dictate that such a state law must give way to vindication of the
federal right when that right is asserted in state court.”). See also Zerilli v. New
York City Transit Auth., 973 F. Supp. 311, 325 (E.D.N.Y. 1997) aff’d in part,
vacated in part, 162 F.3d 1149 (2d Cir. 1998) (finding that failure to comply with
section 50-e would not prevent Title VII action from proceeding).
134
See N.Y. Gen. Mun. Law § 50-h(1), (5) (noting that municipal entity
holds right to 50-h examination and that only claims against municipal entity
cannot proceed without 50-h compliance). See also Jusino v. New York City Hous.
Auth., 691 N.Y.S.2d 12, 16 (1999) (holding that municipal entity is entitled to
examination); Kemp v. County of Suffolk, 878 N.Y.S.2d 135, 136 (2009) (“A party
who has failed to comply [with 50-h requirements] is precluded from commencing
an action against a municipality.”).
31
including the modification of the job description, based on his discovery that she
was Puerto Rican. A reasonable person in Rafferty’s position would have known
that changing Caban’s job description, criticizing her work to superiors, and
addressing her in an aggressive and demeaning manner – all because of her race –
violated her rights under both the city and state human rights laws. While a jury
must decide whether such behavior actually occurred and was motivated by race,
there is no question that a reasonable person would have known that such conduct
is statutorily proscribed.
4. Breach of Contract Claim
In order for plaintiff to bring a breach of a union contract cause of
action against her employer, plaintiff must demonstrate that the union breached its
duty of fair representation to the plaintiff employee.135 Not only is there no
evidence demonstrating any breach of the duty of fair representation, but Caban
does not even allege such a breach. The breach of contract claim is dismissed with
prejudice.
VI.
CONCLUSION
For the foregoing reasons, defendants’ motion is granted as to all
claims against the City of New York, as well as claim one (breach of contract),
135
See Lewis v. North Gen. Hosp., 502 F. Supp. 2d 390, 398 (S.D.N.Y.
2007); Young v. United States Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990).
32
claim two against CUNY (NYCHRL), claim three against CUNY (NYSHRL),
claim four against Rafferty (Title VII), and claim five (section 1983). The motion
is denied for claim four (Title VII) against CUNY and claims two and three
(NYSHRL and NYCHRL) against Rafferty in his personal capacity. The Clerk of
the Court is directed to close this motion [Docket No. 14]. A conference is
scheduled for December 10, 2012 at 4:30 p.m.
Dated:
New York, New York
November 30, 2012
33
-AppearancesFor Plaintiff:
Robert Dembia, Esq.
Robert Dembia, P.C.
350 Broadway, Suite 1202
New York, NY 10013
(212) 226-5905
For Defendants:
Daniel Chiu
Assistant Corporation Counsel of the City of New York
100 Church Street, Room 2-115
New York, NY 10007
(212) 788-1158
34
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