Vlad-Berindan v. The City of New York et al

Filing 155

ORDER ADOPTING REPORT AND RECOMMENDATION: for 150 Report and Recommendations. For the foregoing reasons, the Court ADOPTS the R&R in its entirety. Accordingly, Defendants' motion for summary judgment is GRANTED; Plaintiff's cross-motion for summary judgment or a default judgment is DENIED; and the case is DISMISSED with PREJUDICE. The Clerk of Court is respectfully directed to enter judgment in favor of Defendants and close this case. SO ORDERED. (Signed by Judge Valerie E. Caproni on 9/21/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
LUCIA VLAD-BERINDAN,
:
:
Plaintiff,
:
:
-against:
NYC METROPOLITAN TRANSPORTATION :
:
AUTHORITY, MTA NEW YORK CITY
TRANSIT, MTA NEW YORK CITY TRANSIT :
AUTHORITY, NEW YORK CITY TRANSIT, :
.
Defendants. .
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 9/21/2017
14-CV-10304 (VEC)(DF)
ORDER ADOPTING REPORT &
RECOMMENDATION

VALERIE CAPRONI, United States District Judge:
On December 15, 2014, pro se Plaintiff Lucia Vlad-Berindan (“Plaintiff”) commenced
this employment discrimination and retaliation suit under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Americans with Disabilities Act
of 1990, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (“ADEA”). On April 1, 2016,
the Court dismissed, inter alia, Plaintiff’s Title VII discrimination claim and all of her claims
against the NYC Metropolitan Transportation Authority. Dkt. 46. This case was initially
referred to Magistrate Judge Frank Maas and subsequently reassigned to Magistrate Judge Debra
Freeman. Dkt. 8; see also ECF, 9/7/2016 Docket Entry.
The remaining Defendants (collectively, “Defendants” or “NYCTA”) have filed a motion
for summary judgment seeking dismissal of all remaining claims. Dkt. 105. Plaintiff has filed a
cross-motion for summary judgment or a default judgment against NYCTA. Dkt. 118. On
August 25, 2017, Magistrate Judge Freeman issued a report recommending that Defendants’
motion be granted; that Plaintiff’s cross-motion be denied; and that the case be dismissed with
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prejudice. Report and Recommendation (“R&R”), Dkt. 150. Approximately two hours before
her deadline to file objections to the R&R expired, Plaintiff filed a letter requesting a six-week
extension of her time to file objections. Dkt. 151. The Court granted a five-day extension, and
Plaintiff timely filed objections to the R&R. Plaintiff’s Objections to Magistrate Judge’s Report
and Recommendation (“Pl. Obj.”), Dkts. 153, 154. For the following reasons, the Court
overrules Plaintiff’s objections and ADOPTS the R&R in its entirety.
BACKGROUND
The Court refers the reader to the R&R’s excellent and extremely detailed recitation of
the factual background in this case. For the purposes of this Order, the Court summarizes only
the most pertinent facts.
In 2013, Plaintiff filed a complaint with the EEOC and a lawsuit in federal court (“Prior
Action”) alleging that Defendant NYCTA discriminated against her on the basis of her race,
color, national origin, age, and disability, by failing to provide her a paralegal internship or
contractor position. R&R 4–5. Both were dismissed. R&R 5–6, 6 n.3.
The instant action arises out of Plaintiff’s application for a paralegal position at NYCTA.
NYCTA has two types of paralegal positions, an unpaid internship and a paid contractor
position, with different hiring practices associated for each. R&R 9. For the unpaid internship,
there is no formal hiring process: NYCTA attorneys review the applicant’s resume, and if any
attorney is interested, the applicant is interviewed and selected without any need for a formal
written approval or justification process. R&R 9. The hiring process for the paid contractor
position is more formal: if selected for an interview, the applicant must provide references; after
the interview and the references have been checked, the candidate is interviewed again by the
Deputy Executive Assistant General Counsel. R&R 10. In addition, a paralegal contractor is

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hired only upon the execution of a retainer agreement and a Procurement Justification Form,
which sets forth a written justification for retaining the paralegal contractor. R&R 10–11.
In 2014, Plaintiff called Miriam Bonett Waters, the NYCTA supervisor responsible for
the intern and paralegal contractor hiring process. R&R 6. Plaintiff informed Waters that she,
among other things, is a “qualified paralegal” and that she was “interested in having a job.”
R&R 7 (quoting Plaintiff’s deposition). According to Plaintiff, Waters informed her that
NYCTA had no available internship positions but did have an opening for a paid paralegal
contractor. R&R 6. Plaintiff told Waters that she needed to work as an intern first (because she
was enrolled in a class requiring internship hours for her course of study), and she emailed her
resume to Waters with the subject line “Seeking Paralegal Internship position.” R&R 7–8.
Plaintiff thought that because Waters asked for her resume, “it was implied that [Waters was]
going to offer [Plaintiff] that [paid] job.” R&R 6–7. Waters did not ask Plaintiff for a writing
sample or references. R&R 7.
A panel of NYCTA attorneys interviewed Plaintiff. R&R 12. Plaintiff admits that she
was not explicitly told during her interview that she was being offered a “paid internship.” R&R
13. She nevertheless contends that it was “very clear it was implied during the interview” that
she was being interviewed for the paid position because, inter alia, the interviewers were aware
of her request to complete an internship prior to the paid position, she had informed Waters that
she was interested in both positions, and she was asked during her interview how much she was
going to be paid. R&R 13–15. It appears that Plaintiff thought that Waters’ receipt of her
resume and scheduling of an interview meant that Waters had agreed that Plaintiff was being
interviewed for an unpaid internship that would be followed by a paid position. R&R 14.

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NYCTA offered Plaintiff the unpaid paralegal internship, which Plaintiff accepted. R&R
16–17. Plaintiff interned with NYCTA for approximately six weeks in Spring 2014, from March
2014 to April 2014. R&R 16–17. Although she never discussed a paid paralegal contractor
position “directly” with anyone at NYCTA, Plaintiff testified that the circumstances during her
internship “implied” that she would be hired for a permanent position. R&R 19. The
circumstances that she cites include: “the work [she] received from the attorneys”; NYCTA
placed a placard bearing her name on her desk and assigned Plaintiff a work e-mail address; and
NYCTA gave her full access to NYCTA files, like “for an employee.” R&R 19 (quoting
Plaintiff’s deposition). Plaintiff “assumed” that she would be hired permanently. R&R 19
(quoting Plaintiff’s deposition). Plaintiff was not, however, offered a paid paralegal position
upon the completion of her internship. R&R 19. Plaintiff alleges that NYCTA’s failure to give
her that position was in retaliation for the Prior Action. R&R 19.
The parties dispute when NYCTA first learned of the Prior Action. Plaintiff contends
that NYCTA learned of the Prior Action in April 2014, one week prior to the completion of her
internship, when NYCTA was served with the Complaint in the Prior Action. R&R 19–20.
NYCTA contends that it knew of the federal complaint in the Prior Action as early as February
2014, before Plaintiff started her internship. NYCTA provides as evidence an NYCTA Matter
History Report, which reflects docket information regarding the Prior Action that was logged
into NYCTA’s internal litigation matter system. R&R 20–21. In addition, in claiming that she
suffered retaliatory action, Plaintiff contends that she was treated in a “cold” manner at the end
of her internship. R&R 22. Plaintiff’s examples of “cold” behavior include: Waters’s tone and
response when Plaintiff informed Waters that she had completed her internship; another
attorney’s alleged avoidance of Plaintiff and her delay in providing, and comments included in,

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an evaluation of Plaintiff; and that attorney’s delay in completing a law school recommendation
form for Plaintiff. R&R 22–28. Plaintiff testified during her deposition that after the conclusion
of her internship, she did not contact anyone at NYCTA regarding the paid paralegal contractor
position. R&R 29.
Plaintiff alleges that she was not offered employment as a paid paralegal contractor in
retaliation for filing the Prior Action. In support of her contention that she could have been hired
for a paid contractor position, Plaintiff references two individuals who completed an internship
either prior to, or in conjunction with, a paid paralegal contractor position. R&R 29–33.
Plaintiff also contends that another person was hired instead of her for a paralegal contractor
position that had become vacant around the relevant time. R&R 36–37.
The R&R recommends granting Defendants’ motion for summary judgment because
Plaintiff has failed to establish a prima facie case of retaliation. The R&R also recommends
denying Plaintiff’s cross-motion for summary judgment or for a default judgment. For the
following reasons, the Court agrees with those recommendations and ADOPTS the R&R in its
entirety.
DISCUSSION
In reviewing a report and recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). When no timely objections are made to a magistrate judge’s report, a
district court may adopt the report unless a “clear error on the face of the record” is present.
Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (quoting Nelson v. Smith,
618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). Where a party has made specific, written objections
to the R&R, “[t]he district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (citing 28 U.S.C. § 636(b)(1)). To warrant de
novo review, the objections must be “specific” and “address only those portions of the proposed
findings to which the party objects.” Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 671
(S.D.N.Y. 2011) (citation omitted). If “a party’s objections are conclusory or general, or simply
reiterate original arguments, the district court reviews the [magistrate judge’s report and
recommendations] for clear error.” Id.
Submissions by pro se litigants are construed more leniently than submissions by lawyers
and are interpreted to raise the strongest arguments they suggest. See Pabon v. Wright, 459 F.3d
241, 248 (2d Cir. 2006); see also Goldstein v. Hulihan, No. 09-CV-6824 (CS) (PED), 2011 WL
4954038, at *1 (S.D.N.Y. Oct. 18, 2011). Nevertheless, even a pro se litigant’s objections to a
magistrate judge’s report and recommendations “must be specific and clearly aimed at particular
findings in the magistrate’s proposal, such that no party be allowed a second bite at the apple by
simply relitigating a prior argument.” Goldstein, 2011 WL 4954038, at *1 (quoting Pinkney v.
Progressive Home Health Servs., No. 06–CV–5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21,
2008)).
Plaintiff has asserted a variety of objections to the R&R, none of which constitutes a
specific objection to a proposed finding in the R&R. Plaintiff objects generally that Magistrate
Judge Freeman is biased towards Defendants and that she should recuse herself from this case.1
Pl. Obj. 2–4. Plaintiff contends that Magistrate Judge Freeman was not authorized to issue the
R&R because there was no Court Order referring this case to Magistrate Judge Freeman for a

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Plaintiff also contends that Magistrate Judge Maas, who was previously assigned to this case, exhibited
“unhidden favoritism” to Defendants. Pl. Obj. 2.

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report and recommendation relative to Defendants’ motion for summary judgment. Pl. Obj. 3–7.
Plaintiff notes that this Court referred Defendants’ motion to dismiss to Magistrate Judge Maas
for a report and recommendation but did not refer all dispositive motions to either Magistrate
Judge Maas or Magistrate Judge Freeman. Pl. Obj. 5–6.
Plaintiff’s insinuation of judicial chicanery is meritless. After Magistrate Judge Maas
retired from the bench, this case was reassigned to Magistrate Judge Freeman. A September 7,
2016, docket entry states, “The referral in the above entitled action has been reassigned to
Magistrate Judge Debra C. Freeman, for General Pretrial . . . and Dispositive Motion (i.e., a
motion requiring a Report and Recommendation). Magistrate Judge Frank Maas no longer
referred to the case.” ECF, 9/7/2016 Docket Entry.2 Plaintiffs’ objection that Magistrate Judge
Freeman’s R&R is “a fraud on the court and an abuse of power,” Pl. Obj. 7, is overruled as
frivolous.
Plaintiff raises four additional “objections” to the R&R. She first objects to the R&R’s
recommendation to deny Plaintiff’s motion for default judgment, which was based on Plaintiff’s
contention that Defendants failed timely to respond to Plaintiff’s Complaint. Pl. Obj. 7–9.
Plaintiff, however, simply rehashes her original arguments, considered by Magistrate Judge
Freeman, in connection with Plaintiff’s motion for default judgment. The Court finds no clear
error in the R&R’s finding that Defendants timely responded to the Complaint. See R&R 55–56.

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Although that docket entry did not state that all dispositive motions were referred to Magistrate Judge
Freeman, at that time, Defendants’ motion to dismiss had already been decided, and the only dispositive motion that
was on the horizon was Defendants’ anticipated motion for summary judgment. In addition, to the extent that the
referral to Magistrate Judge Freeman was defective, such a defect “is merely procedural” and “may be waived if not
timely raised.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 857 (5th Cir. 1991). Plaintiff
waived her objection to any defect in the referral by participating in the litigation before Magistrate Judge Freeman,
including by requesting extensions of time in connection with the summary judgment motion briefing, see Dkt. 113,
and by waiting until after Magistrate Judge Freeman had issued the R&R to object. Id. (“A party waives his
objection when he participates in a proceeding before a magistrate and fails to make known his lack of consent or
fails to object to any [] procedural defect in the order referring the matter to the magistrate until after the magistrate
has issued her report and recommendations.”).

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Therefore, the Court ADOPTS the R&R’s recommendation to deny Plaintiff’s motion for default
judgment.
Second, Plaintiff objects that the R&R “misrepresents the facts” because: Defendants’
Rule 56.1 Statement was an unsworn statement; and Exhibit T to the Gallagher Declaration,
which attached Plaintiff’s deposition transcript in two parts (“Exhibit T Pt 1 of 2” and “Exhibit T
Pt 2 of 2”) and was printed in a format with four pages on a single page, was a “tampered” and
forged transcript. Pl. Obj. 9–14. These objections are meritless. The facts set forth in the Rule
56.1 statement must be supported by record evidence, but no federal or local rule requires that
the Rule 56.1 statement itself be a sworn statement. See Fed. R. Civ. P. 56; Local Civ. R. 56.1.
Plaintiff’s objection to Exhibit T is also meritless: neither the fact that Plaintiff’s deposition
transcript was uploaded in two parts nor the fact that the transcript was printed in a “mini-script”
format suggests that Exhibit T was tampered with or forged. Those details are consistent with
the number of pages of Plaintiff’s deposition transcript and ECF’s limit on the file size that can
be uploaded as a single document.
Plaintiff’s third objection is that pages 1 and 73 of Plaintiff’s deposition transcripts,
which are the title pages of the deposition transcripts, are “mutilated” and “blurred beyond
readability,” in part because they were printed in the “mini-script” format. Pl. Obj. 14–15. This
objection is frivolous; the Court had no problem reading those two pages, as well as the entirety
of Plaintiff’s deposition transcript. Plaintiff also suggests, as she did before Magistrate Judge
Freeman, that Defendants “doctored the transcripts” because Magistrate Judge Maas had ordered
that any statement in the deposition transcripts that indicated the testimony had “been taken
pursuant to Court Orders” was “deemed stricken.” Pl. Obj. 15. The Court agrees with
Magistrate Judge Freeman’s conclusion that this challenge is meritless. See R&R 58–59.

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Fourth, Plaintiff objects that the supplemental affidavit of NYCTA employee Richard
Harrington was perjured and that the Matter History Report is a forgery.3 Pl. Obj. 15–19.
Although Plaintiff’s objections are generally difficult to understand, it appears that she is
attacking these documents to support her contention that NYCTA first learned of the Prior
Action the week before her internship ended in April 2014. Plaintiff has adduced no evidence to
support her theory that these documents were falsified. In addition, and as discussed in the
R&R, even if, in fact, NYCTA first learned of the Prior Action in April 2014, her retaliation
claims would nevertheless fail because there is no evidence in the record of any purported
commitment by NYCTA to hire Plaintiff as a paid paralegal contractor, nor is there any evidence
that Plaintiff applied for a specific available position. See R&R 68–74. Plaintiff did not object
to those proposed findings in the R&R, and the Court finds no error in the R&R’s conclusions.
The Court overrules all of Plaintiff’s objections for the reasons discussed supra.4
Because Plaintiff has failed to make specific objections to particular, proposed findings in the
R&R, the Court reviews the R&R for clear error. Upon careful consideration, the Court finds no
clear error in Magistrate Judge Freeman’s extremely thorough and well-reasoned R&R.
Accordingly, the Court adopts the R&R in full and grants summary judgment to Defendants for
the reasons discussed in the R&R.

3
Harrington’s supplemental affidavit corrected Harrington’s prior affidavit to state that the February 12,
2014, entry on the Matter History Report reflects that the complaint (but not the summons) in the Prior Action was
copied from ECF on that day. Dkt. 148.
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Plaintiff also contends that because Defendants’ motion to dismiss was denied, Defendants are estopped
from their “assertion that Plaintiff did not prove her [retaliation] claim.” Pl. Obj. 19. Plaintiff confuses the burden
of proof on a motion to dismiss with the burden of proof on a motion for summary judgment. To survive a motion
to dismiss pursuant to Rule 12(b)(6), Plaintiff need only plausibly allege her retaliation claim. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). At summary judgment, Plaintiff’s claim is held to a stricter standard: Plaintiff must show
that there is a genuine, triable issue of material fact and that when the evidence is viewed in the light most favorable
to her as the non-movant, a reasonable juror could find in her favor. See Fed. R. Civ. P. 56; Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). The Court’s denial of Defendants’ motion to dismiss does not “estop” Defendants
from moving for summary judgment. And upon careful consideration, the Court concludes that Defendants are
entitled to summary judgment as a matter of law for the reasons set forth in the R&R.

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CONCLUSION
For the foregoing reasons, the Court ADOPTS the R&R in its entirety. Accordingly,
Defendants’ motion for summary judgment is GRANTED; Plaintiff’s cross-motion for summary
judgment or a default judgment is DENIED; and the case is DISMISSED with PREJUDICE.
The Clerk of Court is respectfully directed to enter judgment in favor of Defendants and close
this case.

SO ORDERED.

_________________________________
____________________________
__
VALERIE CAPRONI
United States District Judge

Date: September 21, 2017
New York, New York

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