Thelwell v. The City of New York et al
Filing
67
MEMORANDUM OPINION AND ORDER. To the extent not specifically addressed above, any remaining arguments are either moot or without merit. For the reasons explained above, the defendants' motion for summary judgment dismissing the plaintiff's hostile work environment and discrimination claims is granted. All claims against defendant Edidin are dismissed. The defendants' motion for judgment on the pleadings dismissing the plaintiff's retaliation claims is denied. The Clerk is dir ected to close Docket No. 51. So ordered. re: 51 MOTION to Dismiss Amended Complaint or in the alternative MOTION for Summary Judgment dismissing all claims in the Amended Complaint filed by The City of New York, Laura Edidin. (Signed by Judge John G. Koeltl on 7/28/2015) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
WINSOME THELWELL,
Plaintiff,
- against -
13 Cv. 1260 (JGK)
MEMORANDUM OPINION AND
ORDER
CITY OF NEW YORK, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Winsome Thelwell, brought this action
pursuant to § 1981 as amended by the Civil Rights Act of 1991,
42 U.S.C. § 1981; the New York Human Rights Law, New York State
Executive Law § 296 et seq. (the “NYSHRL”); and the New York
City Human Rights Law, Administrative Code of the City of New
York § 8-101 et seq. (the “NYCHRL”), against the defendant, the
City of New York, and an individual defendant, Laura Edidin.
The plaintiff alleges (1) discrimination claims on the basis of
race and national origin arising out of the plaintiff’s alleged
non-promotion; (2) hostile work environment claims on the basis
of race and national origin; and (3) retaliation claims on the
basis of the plaintiff’s filing of this lawsuit.
The defendants move pursuant to Rule 56 of the Federal
Rules of Civil Procedure for summary judgment dismissing much of
the Amended Complaint.
The defendants also move for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure dismissing additional allegations of retaliation
made in the Amended Complaint after the close of discovery.
I.
The following facts are taken from the evidence submitted
to the Court and are construed in the light most favorable to
the plaintiff.
All facts are undisputed unless otherwise noted.
A.
The plaintiff, Winsome Thelwell, is an African-American
woman, born in Jamaica and of West Indian origin.
¶ 6.
Am. Compl.
She has a master’s degree in public administration from
New York University.
Maduegbuna Decl. Ex. 19.
In 1994, Thelwell began working for the New York City
Civilian Complaint Review Board (the “CCRB”) as a “College
Aide.”
Stodola Decl. Ex. L.
The CCRB, a local government
agency, receives, investigates, mediates, hears, makes findings,
and recommends action on complaints against New York City police
officers.
Defs. 56.1 Stmt. ¶ 3.
The CCRB is led by a thirteen-
member Board of Directors (the “Board”), and an Executive
Director.
Id. ¶ 4.
Thelwell currently works as the manager of
one of six teams within the CCRB’s investigation unit.
Stmt. ¶ 13; Maduegbuna Decl. Ex. 66.
Pl. 56.1
Each team includes
investigators of various levels, a supervisor, an assistant
supervisor, and a team manager.
Maduegbuna Decl. Ex. 66.
2
Thelwell received several promotions in her rise from
college aide to her current position of team manager.
In July
1997, Thelwell was promoted to a Level 1 Investigator position,
then Level 2 in February 1998, Level 3 in December 1998, and
then in June 2001, she became a Supervisory Investigator.
56.1 Stmt. ¶¶ 16-19.
Defs.
Finally, in June 2005, Thelwell was
promoted to her current position of team manager.
Id. ¶ 20.
In
this role, Thelwell manages Investigative Team 5, oversees Team
5’s caseload, and acts as a liaison between Team 5 and CCRB’s
executive staff, among other things.
Thelwell Dep. at 39-42.
As a team manager, Thelwell reports to the Deputy Executive
Director for Investigations (the “DEDI”), who in turn reports to
the Executive Director of the CCRB.
Thelwell Dep. 88;
Maduegbuna Decl. Ex. 14, at 2174.
Until late 2011, Thelwell appears to have received
generally good reviews on her performance as manager, with some
caveats.
Joshi.
From 2008 to 2011, Thelwell reported to DEDI Meera
Thompson Dep. 61-62; Thelwell Dep. 75-76.
In a review
for the 2010 year, Joshi gave Thelwell an overall rating of 3.5
on a 1-5 scale, between “Fully Meets Requirements” (3), and
“Greatly Exceeds Requirements” (4).
Maduegbuna Decl. Ex. 27.
Joshi noted Team 5’s “poor team performance” in various metrics
for the year, but acknowledged that Thelwell had dealt with
“numerous personnel issues and a mounting docket” that year.
3
Id.
Generally, Joshi gave Thelwell high praise, writing that
Thelwell is a “pleasure to work with” and a “strong manager.”
Id.
In addition to Joshi’s 2010 evaluation, Thelwell points to
several e-mails and certificates in which her managerial
performance or Team 5’s performance was recognized.
See
Maduegbuna Decl. Exs. 21-22.
Overall, the witness testimony offered in the record paints
Thelwell as a competent, albeit strict team manager.
Carlmais
Johnson, who worked under Thelwell as a Team 5 investigator and
was friendly with Thelwell, Daw Dep. 48, stated that she enjoyed
working on Team 5, but that some others did not want to be put
on Team 5 because it was a “harder team to be on” due to
Thelwell’s “high standards” for investigators.
Johnson Dep. 31.
Carolene George, the Human Resources Director, also testified
that there was a perception of Thelwell as a tough manager, but
she did not think it was warranted.
George Dep. 67-68.
B.
In September 2010, the defendant Laura Edidin joined CCRB
as “special counsel” to run a new project within CCRB, the
Administrative Prosecution Unit.
Defs. 56.1 Stmt. ¶ 22.
In
September 2011, Joshi left the CCRB, and in November 2011, the
Board hired Edidin to replace Joshi as the DEDI.
Id. ¶ 23.
Once Edidin became the DEDI, Thelwell reported directly to her.
Defs. 56.1 Stmt. ¶ 25; Pl. 56.1 Stmt. ¶ 25.
4
Thelwell contends that while working under Edidin, she was
subjected to a hostile work environment based on her race and
national origin.
Thelwell does not point to any explicit
comments by Edidin, or any other CCRB employee, that refer to
her race or national origin.
Rather, Thelwell contends that in
the approximately one year that Edidin was the DEDI, Edidin
stereotyped Thelwell as an “angry black woman,” and subjected
her to harsh and differential treatment as a result.
Thelwell
claims that Edidin did so by using words such as “angry,”
“abrasive,” and “unapproachable” to describe Thewell, to
Thelwell herself and to others at the CCRB.
100-02.
Thelwell Dep.
Edidin testified that she only described Thelwell as
“difficult to work with,” not angry, abrasive, or
unapproachable.
Edidin Dep. 206.
Edidin and Thelwell plainly had a rocky relationship, and
viewed in the light most favorable to the plaintiff, Edidin
treated Thelwell more harshly than other team managers.
Johnson
testified that when she worked on team four, under a Caucasian
supervisor, the team’s performance was worse but it received
better feedback from Edidin than when she was on team five under
Thelwell.
Johnson Dep. 345-46.
Noah Kalkstein, who was also on
team five, testified that at one point team five’s docket was
audited, and a different standard was applied to team five than
to other teams. Kalkstein Dep. 50-52.
5
Thelwell acknowledges
that Edidin never issued any negative written evaluation or
disciplinary charges regarding Thelwell’s performance.
Dep. 86.
Thelwell
However, she claims that Edidin criticized her work,
yelled at her, took away some of her managerial duties, and
discussed Thelwell negatively with others, including the thenExecutive Director of the CCRB, Joan Thompson.
Thelwell Dep.
86-88. 1
Regarding Thelwell’s claims that Edidin yelled at her,
Thelwell points to at least two incidents that others described
as “heated” or confrontational.
In March 2012, Thelwell met
one-on-one with Edidin, where Thelwell contends that Edidin
“berated” her and called her “angry and abrasive.”
Dep. 110.
Thelwell
George testified that she overheard some of the
meeting, and heard Edidin yell at Thelwell in a disrespectful
manner.
George Dep. 69-70.
Edidin acknowledged that she raised
her voice, but only because Thelwell was interrupting her and
Edidin had to raise her voice to be heard.
202-03.
Edidin Dep. 199,
The second incident occurred in June 2012, at a meeting
1
In her motion papers, the plaintiff relies on statements made by witnesses
in the report written by the New York City Law Department’s Equal Employment
Opportunity (“EEO”) Officer regarding Thelwell’s accusations in this case.
See Maduegbuna Decl. Ex. 26. However, a party “cannot rely on inadmissible
hearsay in opposing a motion for summary judgment . . . absent a showing that
admissible evidence will be available at trial.” Burlington Coat Factory
Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)
(internal citations omitted). Even assuming that the EEO Report falls within
the public records hearsay exception of Rule 803(A)(iii) of the Federal Rules
of Evidence, see Dodson v. CBS Broad. Inc., 423 F. Supp. 2d 331, 334
(S.D.N.Y. 2006), the witness statements within the report that the plaintiff
relies upon, some of which are made anonymously, are plainly hearsay and the
plaintiff may not rely upon them in opposing summary judgment.
6
of team managers and executive staff, regarding a dispute about
whether Thelwell could hire someone to replace an investigator
on maternity leave.
Marcos Soler, the Deputy Executive Director
for Policy and Strategic Initiative and CCRB’s Equal Opportunity
Employment Officer, witnessed a “heated confrontation” between
Edidin and Thelwell after the other managers had been dismissed,
after which Edidin called Thelwell “unreasonable.”
Soler Dep.
428-29.
Thelwell claims that Edidin attempted to discipline
Thelwell and discussed Thelwell negatively in front of Thompson.
Thelwell points to Soler’s testimony that in June 2012, Edidin
asked Thompson to discipline Thelwell for “insubordination,” and
that Edidin found Thelwell’s “overall demeanor” to be
“offensive.”
Soler Dep. 422-23.
Soler believed that Edidin’s
accusation was related to the “transferring of cases,” and
stated that he and Thompson found that there was no basis for
discipline.
Id. at 424.
Thompson, on the other hand, recalled
Edidin accusing Thelwell of insubordination after Thelwell had
purportedly hung up on Edidin in the middle of a call, but did
not believe that Edidin recommended any form of discipline.
Thompson Dep. 113.
Edidin also denied that she ever attempted
to discipline Thelwell formally, but acknowledged that she
accused Thewell of insubordination in front of Thompson for
purportedly hanging up on her.
Edidin Dep. 191-92.
7
Thelwell
denied that she ever hung up on Edidin in the way Edidin
described.
Thelwell Dep. 115-17.
Finally, Thelwell claims that Edidin treated her
differently from comparable employees by imposing several forms
of informal discipline on her, such as assigning “junior staff”
to Team 5, not allowing her to interview one candidate for an
investigative position, and removing someone from her team
without discussing the reasons with her.
Id. at 88, 137.
Thelwell also claims that in June 2012, Edidin accused her of
“padding the docket,” or assigning more cases to departing
investigators.
Id. at 118.
Thelwell memorialized that
accusation in an e-mail the following day, and provided facts to
refute the charge.
Maduegbuna Decl. Ex. 41.
Generally, Thelwell contends that Edidin favored a group of
CCRB employees, all Caucasian, with praise and promotions.
Pl. 56.1 Stmt. ¶¶ 235-47.
See
Thelwell points to two instances
where Edidin purportedly promoted two Caucasian investigators
over more qualified, non-White individuals.
Id.
However,
neither of these promotions form the basis of Thelwell’s own
failure to promote claims.
C.
Thelwell alleges that the defendants discriminated against
her by giving two promotions to Dennis McCormick, a Caucasian
male, instead of her.
McCormick joined the CCRB as an
8
investigator in 1996, after receiving his Master’s Degree in
Criminal Justice.
Stodola Decl. Ex. Q.
He rose various levels
from 1996 through 2005, and in September 2005 he became a team
manager.
Id. Exs. O, Q.
By at least 2010 and until August
2012, he was the team manager for Team 2.
Stodola Decl. Ex. P;
McCormick Dep. 57.
The only written evaluation of McCormick in the record, one
by then-DEDI Joshi for 2010, is fairly glowing.
Whereas Joshi
gave Thelwell a 3.5 overall rating on the 1-5 scale for the same
year, Joshi rated McCormick as 4.5 overall, between “Greatly
Exceeds Requirements” (4) and “Exceptional” (5).
Ex. P.
Stodola Decl.
Joshi noted that McCormick is a “skilled manager” with a
strong statistical performance, that he “works well with and is
respected by his colleagues,” and that he “volunteered to work
on a policy recommendation project,” which was successful.
Id.
Joshi recommended that McCormick continue to work on policy
recommendations and suggested that he would “flourish if given
more managerial responsibilities.”
Id.
McCormick appears to
have interacted with the CCRB Board more than other team
managers, including Thelwell.
Several CCRB employees, including
those friendly with Thelwell, testified in depositions that
McCormick spoke with the Board frequently, whereas Thelwell did
not, and that McCormick had a “higher profile” with the Board
than Thelwell.
Daw Dep. 103-04; Johnson Dep. 116-17.
9
1.
In March 2012, McCormick was given a new title in addition
to his then-position as team manager: Director of Investigative
Policy (“DIP”).
Defs. 56.1 Stmt. ¶ 33; Pl. 56.1 Stmt. ¶ 33.
The defendants at times argue that it was not a true promotion,
but the new title came with an 8% pay raise, and an e-mail
authorizing the change stated that “McCormick will be promoted”
to the new position.
Maduegbuna Decl. Ex. 46.
Thelwell claims
that the defendants discriminated against her by offering the
position to McCormick instead of her.
The DIP position appears to have been created specifically
for McCormick.
The position was not posted, McCormick did not
submit an application, and since McCormick has subsequently been
promoted, there is no one currently occupying the DIP position.
Defs. 56.1 Stmt. ¶ 35; Pl. 56.1 Stmt. ¶ 35; McCormick Dep. 176;
Thompson Dep. 173.
Thompson, who authorized the position as the
Executive Director, Maduegbuna Decl. Ex. 46, testified that the
DIP position was “adjunct” to McCormick’s “continuing in his
position as manager,” and that it was “an office title” he was
given for doing extra work for the Board on a large amount of
CCRB complaints that came in during the Occupy Wall Street
movement (“OWS”), as well as some complaints relating to Stop
and Frisk.
Thompson Dep. 168-69, 174-75.
10
According to
Thompson, no one else was considered for the position besides
McCormick.
Id. at 173-74.
Other witnesses confirmed in their deposition testimony
that McCormick was doing additional work and reporting to the
Board.
Daniel Chu, a Board member, testified that McCormick
handled the “unprecedented volume” of complaints that came in
during OWS, and “put in countless hours maintaining accurate
records and speaking with both Joan Thompson, myself and other
members of the board” in working on those matters.
140-41.
Chu Dep.
In at least one public meeting, the Board recognized
McCormick for his OWS work.
George Dep. 154-55.
Thelwell claims that all of the investigative teams
participated in the disposition of OWS complaints.
Dep. 236.
Thelwell
Thompson acknowledged that OWS complaints were sent
to every team, but testified that the cases were “funneled back
through [McCormick].”
Thompson Dep. 197-98.
Thelwell also
contends that the “vast majority” of the complaints were
duplicates, Pl. 56.1 Stmt. ¶ 111, and points to a “list of OWS
cases” with many labeled as duplicates.
Maduegbuna Decl.
Ex. 33.
There is some dispute as to who the final decision-maker
was regarding the creation of the DIP position.
Thompson
testified that the Board requested the position be created for
McCormick, while Chu stated that Thompson made the decision.
11
Thompson Dep. 169, 173; Chu Dep. 157.
An e-mail sent to CCRB
Human Resources stated that Thompson authorized the promotion.
Maduegbuna Decl. Ex. 46, at D1104.
Whether the Board or
Thompson made the decision, Edidin appeared to have had minimal
to no involvement.
Although, as DEDI, she was McCormick’s
direct supervisor at the time in his role as team manager,
McCormick Dep. 180-81, Edidin was not informed about the DIP
position until after the decision was made, when Thompson told
her.
Thompson Dep. 201; Edidin Dep. 197.
McCormick had
previously discussed his interest in policy with Edidin, but
they never discussed the DIP position.
McCormick Dep. 177-78.
McCormick reported to Soler in McCormick’s role in the DIP
position, and continued to report to Edidin in his role as team
manager.
Id. at 180-81.
2.
In August 2012, Edidin left her position as DEDI to become
the Deputy Executive Director of the Administrative Prosecution
Unit.
Defs. 56.1 Stmt. ¶ 43.
replace her as DEDI.
The CCRB Board hired McCormick to
Stodola Decl. Ex. Y.
Thelwell claims that
the defendants discriminated against her based on her race and
national origin by promoting McCormick to the DEDI position
instead of her.
In May 2012, the CCRB posted an initial job vacancy notice
for the DEDI position, which required candidates to have a law
12
degree.
Defs. 56.1 Stmt. ¶¶ 44-45.
In July 2012, the CCRB
posted a revised vacancy notice with the law degree requirement
removed.
Id. ¶ 47.
There is some dispute over why the
requirement was removed.
Chu testified that Thompson was “less
than fully impressed with the pool of applicants,” and wanted to
expand the pool by removing the requirement.
Chu Dep. 124-25.
Thompson, on the other hand, testified that the Board requested
the change because they wanted McCormick in the position, and
McCormick does not have a law degree and the Board had been
working with McCormick “in a very satisfactory manner.”
Thompson Dep. 187-88.
In any event, once the law degree
requirement was removed, all of the team managers, including
Thelwell, were informed of the change and invited to apply for
the position.
Defs. 56.1 Stmt. ¶ 48; Pl. 56.1 Stmt. ¶ 48.
Thelwell did not apply for the position.
¶ 49; Pl. 56.1 Stmt. ¶ 49.
Defs. 56.1 Stmt.
She claims that she did not apply
because she spoke with Soler and he informed her that the Board
and executive staff had already “narrowed the field to ‘four’
good candidates.”
Stodola Decl. Ex. W.
Thelwell relayed that
information in an e-mail chain with another CCRB employee who
applied for the position.
Id.
However, two days before
Thelwell apparently spoke with Soler, Thelwell was asked in the
same e-mail chain whether she would be applying for the
13
position, and she responded that “Denise [another CCRB employee]
already has the DED job.”
Id.
In a letter dated July 12, 2012, McCormick applied for the
DEDI position, and his application was forwarded to Thompson,
who then forwarded his application along with four others to
Daniel Chu.
Maduegbuna Decl. Ex. 52.
After the Board
interviewed McCormick, McCormick Dep. 225-26, the Board
unanimously selected McCormick for the position.
Chu Dep. 147.
According to Chu, Soler, and Thompson, who were all involved in
the selection process, McCormick was selected because of his
strong performance as team manager and his additional work with
the Board.
10.
Soler Dep. 249-53; Chu Dep. 148; Thompson Dep. 209-
Roger Smith, a candidate who was not selected, was given
control of training within the CCRB instead.
211-12.
Thompson Dep.
This position included a salary increase, a new title,
“Director of Training,” and it was not posted.
Id.
Edidin disagreed with the removal of the law degree
requirement, and she testified in her deposition that she
informed Chu that she did not think McCormick should hold the
DEDI position because he is not a lawyer.
Thompson Dep. 214-15.
Edidin Dep. 306-07;
On August 7, 2012, after the Board
selected McCormick, Thompson announced to the CCRB staff by
e-mail that McCormick was promoted to DEDI.
Y.
14
Stodola Decl. Ex.
D.
After Thelwell learned of McCormick’s first raise in
connection with the DIP position, she met with Edidin in March
2012 to argue that Thelwell’s team, Team 5, performed as well or
better than McCormick’s, and that Thelwell also deserved a
raise.
Defs. 56.1 Stmt. ¶ 56; Pl. 56.1 Stmt. ¶ 56.
Thereafter,
Edidin e-mailed Soler requesting statistics comparing Team 5’s
performance against the other teams.
Defs. 56.1 Stmt. ¶ 57.
Soler responded with an analysis of Team 5’s statistical
performance, primarily for 2011.
Stodola Decl. Ex. S.
Soler
indicated that Thelwell had some good statistics for 2011,
including a “substantial number of full investigations,” and a
“very low truncation rate,” which refers to the number of
complaints terminated at an early stage without a full
investigation.
Id.
However, Soler noted that Thelwell
“continues to struggle” with time management.
Id.
Soler also
attributed Thelwell’s positive 2011 statistics, in part, to her
team’s receipt of “fewer cases than any other team,” and its
increased referral rate.
Id.
Soler pointed out that Thelwell
had similar problems in the past.
Id.
In April 2012, Thelwell sent a letter to Thompson detailing
her complaint that Thelwell’s work was “going unrecognized.”
Stodola Decl. Ex. T.
Thelwell wrote that she had met with
Edidin, and that Edidin had unfairly attributed Thelwell’s 2011
15
successes to the investigators working underneath Thelwell, whom
Thelwell alleged were Edidin’s personal friends.
Id.
In early
June 2012, Thelwell again met with Edidin, when Edidin
purportedly accused Thelwell of “padding the dockets of
investigators” that were leaving Team 5.
41.
Maduegbuna Decl. Ex.
Thelwell again wrote to Thompson after this meeting,
stating that she informed Edidin that she would no longer meet
with Edidin alone because Edidin is “not careful with facts, and
does not verify information that casts me in a negative light
before she disseminates it.”
Maduegbuna Decl. Ex. 40.
On July 23, 2012, Thelwell filed an internal complaint
alleging a hostile work environment on the basis of color, race,
and national origin.
Stodola Decl. Ex. X.
Thelwell alleged
that a “caricature” was being painted of her as “the angry black
woman,” and described various grievances.
Id.
The complaint
was referred to an EEO Officer at the New York City Law
Department, who found no probable cause to support Thelwell’s
hostile work environment claims.
Maduegbuna Decl. Ex. 26.
E.
Thelwell brought this action in February 2013.
The initial
Complaint alleged six causes of action, including three counts
alleging discrimination pursuant to 42 U.S.C. § 1981, the
NYSHRL, and the NYCHRL, and three counts alleging retaliation
pursuant to each statute.
In support of the discrimination
16
claims, the Complaint alleged that Thelwell was treated
differently from similarly situated white employees, Compl. ¶
54, and was not promoted on two occasions because of her race,
color, and national origin.
Compl. ¶¶ 36-50.
As to the
retaliation claims, the Complaint primarily alleged that the
defendants failed to promote Thewell in response to her
complaints of discrimination.
Compl. ¶ 53.
After several extensions of time to complete discovery, the
parties completed discovery in December 2014.
2014, the plaintiff filed an Amended Complaint.
In late December
The Amended
Complaint retains the same six causes of action, but adds
several paragraphs concerning alleged retaliatory actions that
occurred in the time since the plaintiff filed this lawsuit.
The plaintiff alleges that in June 2013, Tracy Catapano-Fox
became the new Executive Director of the CCRB, and took several
adverse actions against the plaintiff in retaliation for her
bringing this lawsuit.
The plaintiff alleges that Catapano-Fox formally
disciplined Thelwell in retaliation for filling this lawsuit.
According to the Amended Complaint, on August 23, 2013,
Catapano-Fox issued Thelwell a “Supervisory Conference
Memorandum,” a form of discipline that is permanently placed in
an employee’s personnel file.
Am. Compl. ¶¶ 61-62.
The
Memorandum recounts a conversation that took place between
17
Catapano-Fox, McCormick, and Thelwell about Thelwell’s failure
to follow a new policy that Catapano-Fox and McCormick issued
two days earlier (the “New Policy”).
Maduegbuna Decl. Ex. 58.
According to the Memorandum, the New Policy directed employees
to “err on the side of keeping all documents,” rather than
shredding them, and Thelwell failed to follow that policy.
Id.
According to the plaintiff, however, the New Policy was “never
clearly articulated” and “there was agency-wide confusion.”
Compl. ¶ 64.
Am.
Indeed, in January 2014, McCormick sent a memo to
the CCRB Investigative Staff following up on and clarifying
Catapano-Fox’s instructions regarding the retention of
documents.
Maduegbuna Decl. Ex. 59.
The plaintiff alleges that
Catapano-Fox used the unclear New Policy as a pretext to
retaliate against the plaintiff for filing this suit.
The plaintiff also alleges that Catapano-Fox took several
other actions in retaliation for the plaintiff’s filing of this
action.
The plaintiff alleges that as soon as Catapano-Fox
became the Executive Director, Catapano-Fox told CCRB employees
to stay away from the plaintiff, Am. Compl. ¶ 58; that
Catapano-Fox and McCormick have refused to provide a formal
evaluation of the plaintiff’s 2013 performance and have delayed
the plaintiff’s timesheets, id. ¶¶ 67-71; and that Catapano-Fox
unjustifiably blamed the plaintiff for leaking a memorandum and
18
referred the plaintiff to the City’s Department of
Investigation.
Id. ¶¶ 71-74.
On February 13, 2015, the defendants filed the present
motion.
II.
The defendants move for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure dismissing the
plaintiff’s discrimination claims based on a hostile work
environment and the claims relating to the two failures to
promote.
The defendants move for judgment on the pleadings
pursuant to Rule 12(c) dismissing the retaliation claims that
were added in the Amended Complaint after the close of
discovery.
The standard for granting summary judgment is well
established.
“The Court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,
LP, 22 F.3d 1219, 1223 (2d Cir. 1994).
“[T]he trial court's
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them.
Its
duty, in short, is confined at this point to issue-finding; it
19
does not extend to issue-resolution.”
Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of “informing the
district court of the basis for its motion” and identifying the
matter that “it believes demonstrate[s] the absence of a genuine
issue of material fact.”
Celotex, 477 U.S. at 323.
The
substantive law governing the case will identify those facts
which are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)).
Summary judgment is improper if there is any evidence
in the record from any source from which a reasonable inference
could be drawn in favor of the non-moving party.
See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
If the
moving party meets its burden, the non-moving party must produce
evidence in the record and “may not rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible . . . .”
20
Ying Jing Gan v. City of New
York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v.
Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998) (collecting cases).
The standards to be applied to a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c) are
the same as those applied to a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Enters., 448 F.3d 518, 521 (2d Cir. 2006).
Cleveland v. Caplaw
“Thus, [a court]
will accept all factual allegations in the complaint as true and
draw all reasonable inferences in [the] plaintiff[']s[ ] favor.
To survive a Rule 12(c) motion, [the] complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
F.3d 150, 160 (2d Cir. 2010).
Hayden v. Paterson, 594
In deciding such a motion, the
court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that either are in the plaintiff's possession or were
known to the plaintiff when she brought suit, or matters of
which judicial notice may be taken. See Chambers v.. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also
Morillo v. Grand Hyatt New York, No. 13cv7123, 2014 WL 3498663,
at *6 (S.D.N.Y. July 10, 2014).
21
III.
While the Amended Complaint alleges that the plaintiff was
subjected to discrimination based on her race, color, and
national origin, other than the two alleged failures to promote,
the plaintiff does not allege that she suffered any adverse
employment actions.
Rather, her complaint under § 1981, the
NYSHRL, and the NYCHRL is that Edidin treated the plaintiff more
harshly than similarly situated white employees and stereotyped
the plaintiff based on her race and national origin.
The papers
in connection with the current motion describe this as a claim
for hostile work environment.
At oral argument of the current
motion, the plaintiff agreed that the discrimination claims are
based on the two alleged failures to promote and a claimed
hostile work environment.
A.
Hostile work environment claims under § 1981 and the NYSHRL
are analyzed using the same standard applied to Title VII
hostile work environment claims.
See Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010)
(section 1981); Schiano v. Quality Payroll Sys., Inc., 445 F.3d
597, 609 (2d Cir. 2006) (NYSHRL).
To establish a prima facie
case of a hostile work environment, a plaintiff must show: (1)
discriminatory harassment that was “sufficiently severe or
pervasive to alter the conditions of the victim's employment and
22
create an abusive working environment,” and (2) a specific basis
exists for imputing the objectionable conduct to the employer.
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
The plaintiff must show not only that the plaintiff subjectively
perceived the environment to be abusive but also that the
environment was objectively hostile and abusive.
See Demoret v.
Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006); Feingold v. New
York, 366 F.3d 138, 150 (2d Cir. 2004).
The first element of the prima facie case must be
established by a showing that “the workplace was so severely
permeated with discriminatory intimidation, ridicule, and insult
that the terms and conditions of [the plaintiff's] employment
were thereby altered.”
(2d Cir. 2002).
Alfano v. Costello, 294 F.3d 365, 373
“Isolated incidents typically do not rise to
the level of a hostile work environment unless they are ‘of
sufficient severity’ to ‘alter the terms and conditions of
employment as to create such an environment.’”
Demoret, 451
F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206,
227 (2d Cir. 2004)).
Generally, “incidents must be more than
episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive.”
374).
Id. (quoting Alfano, 294 F.3d at
“It is axiomatic that the plaintiff also must show that
the hostile conduct occurred because of a protected
23
characteristic.”
Tolbert v. Smith, No. 14-1012-CV, 2015 WL
3875237, at *8 (2d Cir. June 24, 2015).
In analyzing a hostile work environment claim, courts
assess the totality of the circumstances, “considering a variety
of factors 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.’”
Demoret, 451 F.3d at 149 (quoting Harris, 510 U.S. at 23); see
also Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F.
Supp. 2d 386, 405-06 (S.D.N.Y. 2013), aff'd, 586 F. App'x 739
(2d Cir. 2014).
The plaintiff contends that Edidin stereotyped the
plaintiff as an “angry black woman,” and incessantly denigrated
and criticized the plaintiff, thus creating a hostile work
environment for the plaintiff.
The plaintiff concedes that
Edidin did not use any explicit racial terms, but the plaintiff
objects that Edidin used words such as “angry” and “abrasive” to
portray the plaintiff as the stereotypical “angry black woman.”
See Heard v. Bd. of Trustees, No. 11cv13051, 2013 WL 142115, at
*12 (E.D. Mich. Jan. 11, 2013) (defining the “angry black woman”
stereotype as, among other things, “a shrill nagger with
irrational states of anger and indignation”).
24
Section 1981 recognizes “dog-whistle racism,” or “the use
of code words and themes which activate conscious or
subconscious racist concepts and frames.”
Lloyd v. Holder, No.
11cv3154, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013).
“[F]acially non-discriminatory terms” may “invoke racist
concepts that are already planted in the public consciousness,”
such as “welfare queen,” “terrorist,” “thug,” and “illegal
alien.”
Id.
In determining whether race-neutral words are used
as racially charged code words, “various factors” are important,
such as “context, inflection, tone of voice, local custom, and
historical usage.”
Ash v. Tyson Foods, Inc., 546 U.S. 454, 456
(2006) (per curiam) (holding that use of “boy,” without any
racial modification, may be evidence of discrimination).
In this case, the few instances of Edidin’s purported use
of the words “angry” and “abrasive” do not rise to the level of
racial code words such as “boy” or “thug.”
There is no evidence
from context that the terms “angry” or “aggressive” were
racially charged in any way, and there is no evidence that in
her entire employment at CCRB anyone used a racial epithet to
describe the plaintiff.
Allegations that a plaintiff was
stereotyped as an “angry black woman” “could support a claim for
racial and/or gender discrimination,” but in this case the
plaintiff’s “subjective interpretation” of Edidin’s use of
“critical but facially non-discriminatory terms does not,
25
itself, reveal discriminatory animus.”
Humphries v. City Univ.
of New York, No. 13cv2641, 2013 WL 6196561, at *9 (S.D.N.Y. Nov.
26, 2013) (dismissing, in a case involving discriminatory
termination, the plaintiff’s claim that she was stereotyped as
an “angry black woman”).
Moreover, all of the conduct alleged by the plaintiff does
not rise to the level of a hostile work environment.
The
plaintiff only points to several instances when Edidin raised
her voice or criticized the plaintiff during the year, but those
actions are not “so severe as to be abusive” enough to
constitute a hostile work environment.
Demoret, 451 F.3d at
150; see also Lucenti v. Potter, 432 F. Supp. 2d 347, 362
(S.D.N.Y. 2006) (“Allegations of even constant reprimands and
work criticism by themselves are not sufficient to establish a
hostile environment claim.”).
Even if Edidin’s few uses of
words like “angry” to refer to the plaintiff were imbued with
the racial subtext the plaintiff gives them, the plaintiff has
not shown that the comments constituted “more than a few
isolated incidents of racial enmity.”
Williams v. Cnty. of
Westchester, 171 F.3d 98, 100-01 (2d Cir. 1999) (per curiam)
(quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.
1986)).
Such comments fall far short of the “steady barrage of
opprobrious racial comments” required for a hostile work
environment claim based on race.
26
Id. at 101 (quoting Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)).
Indeed, the
plaintiff testified at her deposition that she was able to
perform her duties effectively throughout the period of the
alleged hostile work environment.
Thelwell Dep. 92-96.
Thus, a
jury could not find that Edidin’s actions “unreasonably
interfer[ed] with [the plaintiff’s] work performance.”
Demoret,
451 F.3d at 149.
Accordingly, the plaintiff’s hostile work environment
claims under § 1981 and the NYSHRL are dismissed.
B.
The NYCHRL is intended to be more protective than state and
federal law.
Farrugia v. N. Shore Univ. Hosp., 820 N.Y.S.2d
718, 724 (Sup. Ct. 2006).
The “severity” and “pervasiveness” of
the alleged harassment “are applicable to consideration of the
scope of permissible damages, but not to the question of
underlying liability.”
Williams v. New York City Hous. Auth.,
872 N.Y.S.2d 27, 38 (App. Div. 2009) (citing Farrugia, 820
N.Y.S.2d at 725).
“Thus, less egregious conduct than that
required under Title VII may support a hostile work environment
claim under the NYCHRL.” Panzarino v. Deloitte & Touche LLP, No.
05cv8502, 2009 WL 3539685, at *9 (S.D.N.Y. Oct. 29, 2009); see
also Fincher, 604 F.3d at 724 n.10.
However, the “broader purposes of the NYCHRL do not connote
an intention that the law operate as a general civility code.”
27
Zhao v. Time, No. 08cv8872, 2010 WL 3377498, at *23 (S.D.N.Y.
Aug. 24, 2010).
Summary judgment is available where the
employer can prove that the alleged conduct does not even
represent a “borderline” violation, but “could only be
reasonably interpreted by a trier of fact as representing no
more than petty slights or trivial inconveniences.”
Williams,
872 N.Y.S.2d at 41; see also Sims v. City of New York, No.
08cv5965, 2010 WL 3825720, at *12 (S.D.N.Y. Sept. 30, 2010).
In
this case, even under the NYCHRL’s more liberal standard, the
conduct alleged, such as Edidin’s criticism of the plaintiff,
remains far from even a borderline hostile work environment
violation.
See Dressler v. New York City Dep't of Educ., No.
10cv3769, 2012 WL 1038600, at *10 (S.D.N.Y. Mar. 29, 2012)
(finding “harsh criticism” and “increased scrutiny” insufficient
to demonstrate a hostile work environment under the NYCHRL).
Accordingly, the plaintiff’s hostile work environment claim
under the NYCHRL is dismissed.
IV.
The plaintiff claims that the defendants discriminated
against her by failing to promote her to the DIP position in
March 2012, and to the DEDI position in August 2012.
Failure-to-promote discrimination claims under § 1981 and
the NYSHRL are evaluated under the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411
28
U.S. 792, 802–03 (1973).
See Brown v. City of Syracuse, 673
F.3d 141, 150 (2d Cir. 2012).
Initially, the plaintiff has the
burden of proving by a preponderance of evidence a prima facie
case of discrimination.
McDonnell Douglas, 411 U.S. at 802.
“To establish a prima facie case of a discriminatory failure to
promote, a [Section 1981] plaintiff must ordinarily demonstrate
that: (1) she is a member of a protected class; (2) she applied
and was qualified for a job for which the employer was seeking
applicants; (3) she was rejected for the position; and (4) the
position remained open and the employer continued to seek
applicants having the plaintiff's qualifications.”
Aulicino v.
New York City Dep't of Homeless Servs., 580 F.3d 73, 80 (2d Cir.
2009) (quoting Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d
Cir. 2004)).
In sum, the plaintiff must show that she “was
rejected under circumstances which give rise to an inference of
unlawful discrimination.”
burden is “not onerous.”
Id.
The plaintiff’s prima facie
Howley v. Town of Stratford, 217 F.3d
141, 150 (2d Cir. 2000) (quoting Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
If the plaintiff demonstrates a prima facie case, the
burden of production shifts to the employer to articulate a
legitimate, clear, specific and non-discriminatory reason for
refusing to promote the employee.
95 F.3d 123, 129 (2d Cir. 1996).
29
See Holt v. KMI-Cont'l, Inc.,
The defendants’ burden at this
stage is “one of production, not persuasion; it can involve no
credibility assessment.”
Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000).
Finally, if the defendants
satisfy this burden of production, the plaintiff has the
ultimate burden to prove that the employer's reason was merely a
pretext for discrimination.
St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515-16 (1993) (quoting Burdine, 450 U.S. at 258); see
also Holt, 95 F.3d at 129.
“The plaintiff must produce not
simply ‘some’ evidence, but ‘sufficient evidence to support a
rational finding that the legitimate, non-discriminatory reasons
proffered by the [defendants] were false, and that more likely
than not [discriminatory animus] was the real reason for the
[failure to promote].’”
Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000) (quoting Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 714 (2d Cir. 1996)).
It is “unclear whether, and to what extent the McDonnell
Douglas burden-shifting analysis has been modified for NYCHRL
claims.”
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 110 n.8 (2d Cir. 2013).
“[C]ourts must analyze NYCHRL
claims separately and independently from any federal and state
law claims,” though “summary judgment still can be an
appropriate mechanism for resolving NYCHRL claims.”
111.
Id. at 109,
The same factors considered under the McDonnell Douglas
framework may be taken into account, such as non-discriminatory
30
explanations, but summary judgment is appropriate for the
defendants only if “discrimination played no role in [their]
actions.”
Id. at 110 n.8 (quoting Williams, 872 N.Y.S.2d at 38,
40 n.27).
A.
The plaintiff’s first claim for failure to promote is for
the DIP Position to which McCormick was promoted in March 2012.
The plaintiff, an African American of West Indian origin, is a
member of a protected class, and thus has satisfied the first
requirement of her prima facie case.
The other requirements are
more complicated.
In the usual case, a failure to promote claim requires that
the plaintiff “applied for a specific position or positions and
was rejected therefrom,” in order to ensure that the plaintiff
“alleges a particular adverse employment action, an instance of
alleged discrimination, by the employer.”
Brown v. Coach
Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998).
The defendants
argue that the plaintiff never applied for the DIP position, and
therefore cannot make out a prima facie case of discrimination.
But the position was never posted.
“[T]o be excused from the
specific application requirement, an employee must demonstrate
that (1) the vacancy at issue was not posted, and (2) the
employee either had (a) no knowledge of the vacancy before it
was filled or (b) attempted to apply for it through informal
31
procedures endorsed by the employer.”
227.
Petrosino, 385 F.3d at
The plaintiff is excused from the application requirement
because the DIP position was never posted, and the plaintiff had
no knowledge of it.
See, e.g., Roberti v. Schroder Inv. Mgmt.
N. Am., Inc., No. 04cv2404, 2006 WL 647718, at *6 (S.D.N.Y. Mar.
14, 2006) (denying motion to dismiss for failure to apply where
the plaintiff had no knowledge of unposted position).
The ad hoc nature of the DIP position also makes the
necessary qualifications unclear.
However, the burden on a
plaintiff to show qualifications at the prima facie stage is
quite low, and she need only show that she “possesses the basic
skills necessary for performance of the job.”
De la Cruz v. New
York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20
(2d Cir. 1996) (alteration omitted).
The plaintiff’s Master’s
degree in public policy and her past commendations and positive
review are sufficient to meet the qualifications requirement.
See id. at 21 (“[A] performance evaluation that is positive
overall is sufficient to withstand summary judgment at the prima
facie stage of analysis.”).
The circumstances of this case do not give rise to an
especially compelling inference of discrimination.
The
plaintiff provided some evidence showing that Edidin treated her
more harshly than similarly situated team managers, that Edidin
favored Caucasian employees, and that the defendants elevated
32
McCormick, a white male, over the plaintiff to a position for
which she was otherwise qualified.
See, e.g., Leibowitz v.
Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (holding that
inference of discrimination may arise from “more favorable
treatment of employees not in the protected group”).
However,
Edidin, the only alleged discriminatory actor, appeared to have
minimal involvement, if any, in the creation of the DIP
position.
Accordingly, the plaintiff has satisfied her minimal
prima facie burden, if only barely.
But in any event, the defendants have offered a legitimate
non-discriminatory reason for promoting McCormick to the DIP
position, and the plaintiff has not demonstrated that the
proffered reason was a pretext for a discriminatory motive on
the basis of race or national origin.
The defendants contend
that McCormick was given the title of Director of Investigative
Policy because he volunteered to assist the Board with the high
volume of CCRB complaints that came in during OWS.
The plaintiff has not disputed all of the deposition
testimony that McCormick had a “higher profile” with the Board
than other team managers, Daw Dep. 103-04; Johnson Dep. 116-17;
and that he was recognized for taking on additional work
relating to OWS.
Thompson Dep. 169, 174-75; Chu Dep. 140-41;
George Dep. 154-55.
Indeed, the evaluation covering McCormick’s
2010 performance noted that he had volunteered on a policy
33
project, and strongly recommended that he be given more
responsibilities.
Stodola Decl. Ex. P.
Meera Joshi, the
previous DEDI, wrote the evaluation, and the plaintiff does not
allege that Joshi had any discriminatory animus.
McCormick
plainly continued to pursue extra work relating to policy
matters, and he received a new policy title in addition to his
role as team manager.
The plaintiff argues that the procedural irregularity of
the position’s creation demonstrates it was pretextual: the CCRB
usually posts positions, and this one was not posted.
However,
as an initial matter, the plaintiff has not shown that CCRB was
required to post the position, and thus there was no procedural
irregularity that would demonstrate pretext.
Thompson testified
in her deposition that there was no obligation to post the
position because it was simply an additional title given to
McCormick for “doing special work,” and not a full-time
position.
Thompson Dep. 168-69, 171.
And on at least one other
occasion, the defendants created a position specifically for
Rogert Smith, a racial minority, without posting the position
for others.
Id. at 211-12; Smith Dep. 245-46.
The plaintiff
has not offered any evidence to show that there was an
obligation to post the DIP position.
The plaintiff points to a
1998 “Personnel Services Bulletin” from the Department of
Citywide Administrative Services (“DCAS”) regarding the
34
requirement for agencies to post vacant positions.
Decl. Ex. 44.
Maduegbuna
But the plaintiff offers no testimony or other
record evidence indicating that this bulletin applies to the DIP
position.
Therefore, the plaintiff has not shown that the CCRB
deviated from its own procedures in any way.
Moreover, “as a general matter, the mere fact that an
employer failed to follow its own internal procedures does not
necessarily suggest that the employer was motivated by illegal
discriminatory intent.”
Harris v. Niagara Mohawk Power Corp.,
252 F.3d 592, 599 (2d Cir. 2001) (alteration omitted).
It is
true that “departures from procedural regularity . . . can raise
a question as to the good faith of the process,” but only “where
the departure may reasonably affect the decision.”
224 F.3d at 45.
Weinstock,
As in Weinstock, any procedural irregularity
here only “serve[s] to support [the defendants’] proffered
nondiscriminatory reason.”
Id.
The position was not posted
because it was created for McCormick, not just any CCRB
employee, due to McCormick’s apparent interest and volunteer
work.
It provided additional compensation and responsibilities
for McCormick while he also continued to perform his prior job
responsibilities.
Accordingly, whatever procedural irregularity
may have existed in this case, it does not demonstrate that the
defendants’ proffered reason is a pretext for discrimination.
35
The plaintiff also argues that the reason is pretextual
because a significant portion of the OWS complaints were
duplicates, Maduegbuna Decl. Ex. 33, and that other
investigative teams worked on OWS complaints as well. 2
While
Thompson acknowledged that other teams worked on OWS complaints,
she also testified that McCormick had a more prominent role in
handling them and they were all “funneled back” through him.
Thompson Dep. 197-98.
Neither of the plaintiff’s proffered
facts contradicts or undermines the evidence that McCormick had
a closer working relationship with the Board than other team
managers, and that he had been recognized for his work on the
OWS complaints.
Therefore, there is nothing about those facts
that would permit a rational jury to conclude that the
defendants’ claim that McCormick was promoted for his extra work
“was false, and that discrimination was the real reason” for
McCormick’s promotion.
Hicks, 509 U.S. at 515 (emphasis in
original).
Finally, the plaintiff argues that McCormick’s work with
the Board could not have led to his promotion because, according
to the plaintiff, the Board did not actually authorize
McCormick’s promotion.
There are some discrepancies between the
testimony of Chu and Thompson as to who actually created the
2 The plaintiff actually makes this argument in her papers in response to the
defendants’ proffered nondiscriminatory reason for promoting McCormick to the
DEDI position, rather than the DIP position. Because the argument is also
applicable to the DIP position, the Court will consider it in this context.
36
position, Thompson Dep. 173; Chu Dep. 157; and it appears that
Thompson provided the final authorization for the promotion.
Maduegbuna Decl. Ex. 46, at D1104.
not make a difference in this case.
But these discrepancies do
The plaintiff does not
allege that either the Board or Thompson acted with
discriminatory animus.
And there is no evidence that Edidin,
the only person to whom the plaintiff ascribes a racial animus,
was a decision-maker or caused the decision to give McCormick
the DIP responsibilities.
Therefore, regardless of whether a
jury concluded that the Board or Thompson initiated and
authorized McCormick’s promotion, there is no basis for a
rational jury to conclude that the decision was motivated by
discriminatory animus.
The plaintiff has failed to demonstrate that a rational
jury could conclude that discrimination based on the plaintiff’s
race or national origin played a role in the defendants’
decision to create the DIP position for McCormick, and not the
plaintiff.
Accordingly, the plaintiff’s failure to promote
claims based on the DIP position are dismissed.
B.
The plaintiff’s second failure to promote claim is based on
McCormick’s promotion to DEDI in August 2012.
The plaintiff has
not made out a prima facie case for this claim because there is
37
no reason to excuse the plaintiff’s failure to apply for the
DEDI position.
The plaintiff concedes that the DEDI position was posted
and that she was aware of it, and thus the exception in
Petrosino plainly does not excuse the plaintiff’s failure to
apply.
385 F.3d at 227.
Instead, the plaintiff argues that it
would have been futile for her to apply because of Edidin’s
discriminatory conduct, and because a member of the executive
staff informed her that they had narrowed the field to “four
good candidates.”
Pl. 56.1 Stmt. ¶ 189.
“[A] plaintiff’s
failure to apply for a position is not a bar to relief when an
employer's discriminatory practices deter application or make
application a futile endeavor.”
Malarkey v. Texaco, Inc., 983
F.2d 1204, 1213 (2d Cir. 1993).
A nonapplicant plaintiff
claiming futility bears the “not always easy burden of proving
that [s]he would have applied for the job had it not been for
those [discriminatory] practices.”
Int'l Bhd. of Teamsters v.
United States, 431 U.S. 324, 367-68 (1977); see also Brown v.
Coach Stores, 163 F.3d at 711.
In this case, the plaintiff has not demonstrated how any of
the defendants’ alleged discriminatory practices deterred the
plaintiff from applying for the DEDI position.
The plaintiff
relies principally on Malarkey, but in that case, there was no
open posting of the positions, and the jury could have found
38
that the alleged discriminatory actor played a “key role” in
recommending candidates to the informal openings, making the
plaintiff’s applications futile.
983 F.2d at 1213.
By
contrast, the plaintiff here was explicitly invited to apply,
and Edidin, the only alleged discriminatory actor, had just a
minor role in the application process.
Indeed, the plaintiff
points to information she heard about the field of candidates
from Soler, not Edidin, in explaining why she was discouraged
from applying.
The plaintiff does not allege that Soler had any
discriminatory animus towards the plaintiff.
Moreover, prior to
when the plaintiff had spoken to Soler, she indicated that she
would not apply because another employee, who did not ultimately
receive the promotion, “already has the DED job.”
Ex. W.
Stodola Decl.
The plaintiff has not shown that she “would have applied
for” the DEDI position “had it not been for” any discriminatory
practices by the defendants.
Teamsters, 431 U.S. at 367-68.
Accordingly, the plaintiff has failed to demonstrate a prima
facie claim of discrimination based on her claim for a failure
to promote to the DEDI position.
In any event, the defendants offered a legitimate,
nondiscriminatory reason for McCormick’s promotion, and the
plaintiff has not demonstrated that it was pretextual.
The
Board promoted McCormick to DEDI by unanimous decision based on
his record as team manager and his policy work.
39
The plaintiff
has not alleged that the Board acted with any discriminatory
animus in doing so.
Rather, the plaintiff argues that Edidin’s
involvement in the selection process, which the record suggests
was minimal, tainted the selection process with discriminatory
animus.
“[I]mpermissible bias of a single individual at any stage
of the promoting process may taint the ultimate employment
decision . . . even absent evidence of illegitimate bias on the
part of the ultimate decision maker, so long as the individual
shown to have the impermissible bias played a meaningful role in
the . . . process.”
Bickerstaff v. Vassar Coll., 196 F.3d 435,
450 (2d Cir. 1999).
The plaintiff has not shown that Edidin had
a “meaningful role” in McCormick’s promotion over the nonparties who, unlike the plaintiff, had actually applied for the
DEDI position.
Id. at 451 (affirming dismissal of Title VII
claim due to “absence of evidence establishing any causal link
between [purported recommender’s] alleged discriminatory bias
and [defendant’s] decision to deny [the plaintiff’s]
promotion”).
The plaintiff concedes that Edidin opposed the
removal of the law degree requirement and recommended against
McCormick’s promotion to DEDI.
Therefore, even assuming the
plaintiff has shown that Edidin was impermissibly biased against
the plaintiff, that bias did not taint the Board’s decision to
promote McCormick because the Board, “the ultimate decision
40
maker, did not rely on [Edidin’s] opinion.”
Waheed v. SUNY
Brooklyn Educ. Opportunity Ctr., No. 04cv5630, 2007 WL 2126092,
at *7 (E.D.N.Y. July 24, 2007).
Accordingly, no rational jury
could find that the defendants’ reasons for promoting McCormick
to DEDI were pretexts for discrimination against Thelwell, or
that race played any role at all in the Board’s decision to
promote McCormick.
Because both of the plaintiff’s failure to promote claims
fail, her claims for discrimination under § 1981, the NYSHRL,
and the NYCHRL are dismissed.
V.
The plaintiff brings claims for retaliation pursuant to
Section 1981, the NYSHRL, and the NYCHRL.
She alleges that the
City, through CCRB’s Executive Director Catapano-Fox, retaliated
against her for filing this lawsuit by taking several adverse
employment actions against her, including issuing a disciplinary
memo. 3
Because the plaintiff added these allegations after the
3 In the original Complaint, the plaintiff’s allegations of retaliation
centered on Edidin’s purported “differential treatment” of the plaintiff in
retaliation for the plaintiff’s filing of an internal discrimination
complaint. Compl. ¶¶ 53-54. The plaintiff has since abandoned any
retaliation claims against Edidin, and is now only pursuing her claims
against the City based on the actions of Catapano-Fox. Accordingly, because
the plaintiff’s other discrimination claims against Edidin are being
dismissed, the plaintiff no longer has any claims against Edidin, and the
Complaint against Edidin is dismissed.
41
close of discovery, the defendants move to dismiss the claims
pursuant to Rule 12, rather than seeking summary judgment. 4
Federal and state law retaliation claims are also reviewed
under the McDonnell Douglas burden-shifting approach.
Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013).
Kwan v.
The
plaintiff must establish a prima facie case of retaliation by
showing 1) “participation in a protected activity”; 2) the
defendant's knowledge of the protected activity; 3) “an adverse
employment action”; and 4) “a causal connection between the
protected activity and the adverse employment action.”
844.
Id. at
Although a plaintiff is not required to allege facts
establishing a prima facie case of discrimination to survive a
motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506,
508 (2002), a plaintiff must plead “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.”
Iqbal, 556 U.S. at 678; see also Rullan v. New
York City Sanitation Dep't, No. 13cv5154, 2014 WL 2011771, at *6
(S.D.N.Y. May 16, 2014), aff'd, No. 14-2127, 2015 WL 3771755 (2d
Cir. June 18, 2015).
The defendants concede that the
plaintiff’s lawsuit is a protected activity and that
Catapano-Fox was aware of the lawsuit, but argue that the
plaintiff has not shown that any adverse employment actions were
4
In the event the Court denies their motion, the defendants request additional
time for discovery on the new allegations. Because the Court is denying the
defendants’ motion to dismiss, the Court grants that request.
42
taken against her, and that there is no causal connection
between her filing of the lawsuit and any alleged adverse
actions.
A.
To plead that an adverse employment action occurred, the
plaintiff must plausibly allege “that a reasonable employee
would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
“Context matters,” because “[t]he real social impact of
workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which
are not fully captured by a simple recitation of the words used
or the physical acts performed.”
Id. at 69 (quoting Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998)).
“[A]lleged acts of retaliation need to be considered both
separately and in the aggregate, as even minor acts of
retaliation can be sufficiently substantial in gross as to be
actionable.”
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010).
In her Amended Complaint, the plaintiff alleges that once
Catapano-Fox became the Executive Director of the CCRB,
Catapano-Fox took a host of retaliatory actions against the
plaintiff, including (1) telling other employees to stay away
43
from the plaintiff; (2) singling the plaintiff out for
discipline by writing the plaintiff a Supervisory Memorandum for
purportedly not following an ambiguous new policy; (3)
unjustifiably initiating an internal investigation against the
plaintiff; and (4) refusing to give the plaintiff a formal
evaluation for 2013, a year in which the plaintiff claims she
performed well.
At the pleading stage, these actions, in the aggregate,
“might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”
White, 548 U.S. at 68.
“[N]egative employment evaluation letters,” such as the
Supervisory Memorandum, may be considered adverse actions.
Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002);
see also Hicks v. Baines, 593 F.3d at 170 (holding that it would
be an adverse action under § 1981 and the NYSHRL if an employee
were “disciplined (though innocent)” in retaliation for
participating in a discrimination investigation or proceeding).
The plaintiff’s allegation that she was subjected to an
unwarranted investigation, if true, may add to the overall
context of retaliatory actions.
See Treglia, 313 F.3d at 717
(noting that the plaintiff was subjected to internal
investigations, among other adverse actions); Lapaix v. City of
New York, No. 13cv7306, 2014 WL 3950905, at *6 (S.D.N.Y. Aug.
12, 2014) (holding that the plaintiff stated a retaliation claim
44
where he alleged “unwarranted investigations” as an adverse
employment action).
The defendants argue that the plaintiff has not offered
competent evidence in support of these allegations, but the
Court may not resolve that issue on a motion to dismiss.
See
Bolt Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d Cir.
1995).
Because the plaintiff added these allegations after the
close of discovery, the defendants will be able to conduct
additional discovery on the new allegations.
Summary judgment
or trial is the appropriate stage to consider the facts behind
the plaintiff’s allegations of adverse actions, individually and
in the aggregate.
Cf. Bernheim v. Litt, 79 F.3d 318, 326 (2d
Cir. 1996) (stating, in First Amendment retaliation context,
that “it would be burdensome to have the district court ‘prune’
a complaint at the pleading stage by making a determination with
regard to each allegation within a cause of action that is
legally cognizable when viewed in its totality”).
B.
The defendants dispute the causal connection between the
adverse actions and the plaintiff’s protected activity on the
sole ground that the adverse actions are too far removed in time
from the filing of this lawsuit.
The plaintiff filed this
lawsuit in February 2013, and the alleged adverse actions
occurred around August 2013.
45
At the prima facie stage, a plaintiff may satisfy the
causation prong by resorting to temporal proximity.
F.3d at 845.
Kwan, 737
“Though [the Court of Appeals] has not drawn a
bright line defining, for the purposes of a prima facie case,
the outer limits beyond which a temporal relationship is too
attenuated to establish causation, [the Court has] previously
held that five months is not too long to find the causal
relationship.”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
110 (2d Cir. 2010).
The defendants argue that the time lapse
between February 2013 and August 2013, approximately six months,
is too lengthy to satisfy the causation prong.
But prior to
June 2013, Catapano-Fox did not have the “actual opportunity to
retaliate” against the plaintiff because the plaintiff “was not
directly working for” Catapano-Fox.
F.3d 115, 128 (2d Cir. 2013).
Summa v. Hofstra Univ., 708
Once Catapano-Fox assumed her
position as Executive Director of the CCRB in June 2013, it was
only approximately two months before she took the alleged
retaliatory actions.
Accordingly, in the context of this case,
the plaintiff has alleged “reasonably close temporal proximity”
and a sufficient basis to infer causation.
Id. (holding that
seven-month gap did not preclude a finding of causation where
the plaintiff was not working for the alleged retaliators for
much of that time).
The plaintiff also argues that Catapano-Fox
treated her differently from comparable employees by
46
disciplining the plaintiff, and not others, for purportedly
violating an ambiguous policy.
Hicks v. Baines, 593 F.3d at 170
(noting that “disparate treatment of fellow employees who
engaged in similar conduct” may be circumstantial evidence of
causation (quoting Gordon v. N.Y. City Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)).
The defendants do not challenge this
allegation in their motion.
Accordingly, the plaintiff has met her “de minimis” burden
of demonstrating a prima facie case of retaliation.
F.3d at 844.
Kwan, 737
In their motion papers, the defendants do not
articulate a legitimate, non-retaliatory motive for the alleged
adverse actions.
Therefore, the defendants’ motion to dismiss
the plaintiff’s retaliation claims for failure to state a claim
is denied.
VI.
Finally, the defendant the City of New York moves to
dismiss the § 1981 claims against it, arguing that the plaintiff
has failed to allege sufficiently that the alleged violations
were a result of a “policy or custom” such that liability could
be imputed to the City of New York.
Servs., 436 U.S. 658, 694 (1978).
See Monell v. Dep't of Soc.
A municipality can be liable
for violating § 1981 only if the injury at issue resulted from
the execution of a racially discriminatory “policy or custom.”
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989)
47
(holding that because the “express ‘action at law’ provided by
§ 1983 . . . provides the exclusive federal damages remedy for
[a] violation of the rights guaranteed by § 1981,” plaintiff
“must show that the violation of his ‘right to make contracts'
protected by § 1981 was caused by a custom or policy within the
meaning of Monell and subsequent cases”); see also Chin v. New
York City Hous. Auth., 575 F. Supp. 2d 554, 561 (S.D.N.Y. 2008).
“[I]f the challenged action is directed by an official with
‘final policymaking authority,’ the municipality may be liable
even in the absence of a broader policy.”
Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 385 (2d Cir. 2003) (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481–83 (1986)).
Whether the
official in question possessed final policymaking authority is a
question of state law.
See Jeffes v. Barnes, 208 F.3d 49, 57
(2d Cir. 2000).
The plaintiff alleges that Catapano-Fox took several
adverse employment actions against the plaintiff, including acts
of formal discipline, and that Catapano-Fox is the Executive
Director of the CCRB.
Am. Compl. ¶¶ 58-74.
The defendants
argue that the plaintiff has not specified the policymaking
authority of Catapano-Fox with sufficient particularity, but at
the motion to dismiss stage, “Monell claims are subject to the
same liberal pleading standards of Rule 8(a)(2).”
Cantey v.
City of New York, No. 10cv4043, 2012 WL 6771342, at *4 (S.D.N.Y.
48
Dec. 11, 2012).
The plaintiff alleges that Catapano-Fox, as
Executive Director, ordered retaliatory employment actions
against the plaintiff and that those actions were taken without
the need for intervention from any higher authority.
At the
pleading stage, these allegations are sufficient to show that
Catapano-Fox possessed final policymaking authority with regard
to CCRB personnel decisions.
See, e.g., Mandell, 316 F.3d at
385 (holding that police commissioner’s alleged placement of
negative evaluation in officer’s personnel file could constitute
retaliation, and that commissioner’s “authority to set
department-wide personnel policies” was a basis for Monell
liability for the county); Rookard v. Health & Hospitals Corp.,
710 F.2d 41, 45 (2d Cir. 1983) (holding that Executive Director
of Harlem Hospital had authority to make policy based on his
position and ability to make final personnel decisions).
In their motion papers, the defendants only direct their
arguments towards Edidin’s purported lack of authority, and
devote no arguments concerning the policy-making role of
Catapano-Fox. 5
Nevertheless, the defendants contend that those
arguments apply equally to Catapano-Fox.
They contend that the
New York City Charter vests policymaking authority for personnel
5 At oral argument, the defendants suggested that they did not foresee the
plaintiff’s arguments suggesting that Catapano-Fox was a final policymaker,
but Catapano-Fox figured prominently in the Amended Complaint. Moreover, the
defendants submitted a reply brief after the plaintiff laid out her
arguments, and there are no Monell arguments in the reply brief.
49
matters to the Commissioner of the Department of Citywide
Administrative Services (“DCAS”),
see N.Y. City Charter §§ 811,
814(c), and thus only the DCAS Commissioner can be the final
policymaker for personnel matters.
However, the Court of
Appeals has found that other New York City officials may be a
final policymaker.
See, e.g., Rookard, 710 F.2d at 45 (holding
that top officials in the Health and Hospitals Corporation were
final policymakers).
Moreover, the defendants have provided no
information regarding the CCRB Executive Director’s
responsibilities under state law in order to explain why she is
not a final policymaker.
See Barry v. New York City Police
Dep't, No. 01cv10627, 2004 WL 758299, at *15 (S.D.N.Y. Apr. 7,
2004) (denying summary judgment for the defendants where the
defendants did not provide the court with enough information to
determine who had policymaking authority).
At the motion to
dismiss stage, the plaintiff’s allegations that Catapano-Fox
took retaliatory actions against the plaintiff in Catapano-Fox’s
position as Executive Director is sufficient to state a § 1981
claim against the City based on Catapano-Fox’s actions.
See
Mandell, 316 F.3d at 385.
Accordingly, the City of New York’s motion to dismiss the
plaintiff’s § 1981 claims is denied.
50
Conclusion
To the extent not specifically addressed above, any
remaining arguments are either moot or without merit.
For the
reasons explained above, the defendants’ motion for summary
judgment dismissing the plaintiff’s hostile work environment and
discrimination claims is granted.
All claims against defendant
Edidin are dismissed. The defendants’ motion for judgment on the
pleadings dismissing the plaintiff’s retaliation claims is
denied.
The Clerk is directed to close Docket No. 51.
SO ORDERED.
Dated:
New York, New York
July 28, 2015
__________/s/_________________
John G. Koeltl
United States District Judge
51
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