Eisner v. New York City Law Department et al
Filing
40
OPINION AND ORDER: For the aforementioned reasons, defendants' motion for summary judgment is GRANTED. The NYCHRL retaliation claim is hereby dismissed without prejudice. The Clerk of the Court is directed to close this motion (Dkt. No. 25) and this case. (As further set forth in this Opinion) (Signed by Judge Shira A. Scheindlin on 2/22/2016) (kl)
II.
BACKGROUND
From May 2000 until her termination in June 2013, Eisner was
employed as an Assistant Corporation Counsel (“ACC”) by the City’s Law
Department, which is “responsible for all of New York City’s legal affairs.”1
Beginning in 2005, Eisner worked in the Appeals Division of the Law Department
representing the City in appellate litigation in both state and federal court.2
Eisner had previously complained of disability discrimination and
retaliation both internally and through the Equal Employment Opportunity
Commission (“EEOC”). These claims were settled on July 20, 2012, and pursuant
to that settlement the parties have stipulated that Eisner will not attempt to recover
from claims arising prior to the settlement.3 Nonetheless, the facts giving rise to
the prior complaints are necessary to understand the present action.
A.
Settled Claims
In 2009, the quality of Eisner’s work at the Appeals Division began to
suffer, which she attributed to her subsequent diagnosis with “Major Depression,
1
Defendants’ Statement of Undisputed Facts Pursuant to Local Rule
56.1 (“Def. 56.1”) ¶¶ 1-4.
2
See id. ¶¶ 3, 10.
3
See Memorandum of Law in Support of Defendants’ Motion for
Summary Judgment (“Def. Mem.”) at 5 n.3.
2
Severe, Single Episode . . . induced post-partum following the birth of a child” and
“Anxiety and Obsessive-Compulsive disorders.”4 According to Eisner, her
supervisor, Kristin Helmers,5 remarked that she was “not high-functioning” and
that “no magic pill can fix you.”6 Eisner’s 2009 performance review, conducted by
Helmers, reflected her decreased job performance.7
Following receipt of the negative evaluation, Eisner filed an internal
Equal Employment Opportunity (“EEO”) complaint alleging disability
discrimination and retaliation by Helmers.8 Defendant Muriel Goode-Trufant, the
EEO Officer for the Law Department throughout Eisner’s tenure, conducted an
investigation that resulted in Helmers’s reassignment to a different team and the
2009 evaluation being stricken from Eisner’s personnel file.9
In 2010, the Law Department was forced to “eliminate three attorney
positions” due to budgetary constraints and selected Eisner and two other attorneys
4
Amended Complaint ¶ 15.
5
See Plaintiff’s Local Civil Rule 56.1 Statement in Response to, and in
Contravention of, Defendants’ Rule 56.1 Statement (“Pl. 56.1”) ¶ 14.
6
Amended Complaint ¶ 19.
7
See id. ¶¶ 21-22.
8
See Pl. 56.1 ¶ 14.
9
See id. ¶ 15.
3
deemed to be the “lowest performers” in the division for transfer to other
divisions.10 Instead of accepting the transfer, Eisner opted to take a vacant parttime attorney position in the Appeals Division at the urging of her treating
psychiatrist who recommended “that she needed the stability of staying in the
Appeals Division.”11
As a result of being forced to accept a part-time position, on February
28, 2011, Eisner filed a complaint with the EEOC because she felt the decision to
transfer her resulted from continued disability discrimination and retaliation for her
earlier complaint against Helmers.12 In April 2012, Eisner was restored to full-time
status at the Appeals Division.13 That same month, the EEOC issued a “Dismissal
and Notice of Rights” finding that “the EEOC is unable to conclude that the
information obtained establishes violations of the statutes.”14 Nonetheless, the
parties agreed to settle the issue by agreement on July 20, 2012, whereby Eisner
10
Def. 56.1 ¶¶ 11-14.
11
Amended Complaint ¶ 21.
12
See id. ¶ 22.
13
See Def. 56.1 ¶ 23.
14
Settlement Agreement, Ex. H to the Declaration of Eric Eichenholtz,
counsel for defendants, in Support of Defendants’ Motion for Summary Judgment
(“Eichenholtz Decl.”), at 1.
4
released all claims of discrimination and retaliation arising prior to that date.15
B.
Present Claims
Eisner continued to work for the Appeals Division until her
termination on June 3, 2013. Defendants offer two reasons for her termination: (1)
a negative 2012 performance evaluation and her performance on the cases
evaluated therein and (2) “questions about plaintiff’s ability to follow supervisory
direction and legitimate concerns about the honesty of plaintiff’s timekeeping”
following Hurricane Sandy.16 The decision to terminate Eisner was “made by
‘consensus’” of all of the individual defendants who were executives in the Law
Department with the exception of the EEO Officer, Goode-Trufant.17
1.
2012 Performance Review
On July 23, 2012, the first business day after the settlement of the
2011 charge, defendant Leonard Koerner, Chief of the Appeals Division,
completed Eisner’s 2012 performance review.18 The review was the “worst ever
15
See Settlement Agreement ¶ 1.
16
Def. Mem. at 6-12.
17
Def. 56.1 ¶ 136 (quoting Defendants’ Cardozo Transcript (“Def.
Cardozo Tr.”), Ex. A to Eichenholtz Decl., at 114:22).
18
See id. ¶¶ 27-28.
5
given to Eisner.”19 During the twelve month period covered by the evaluation,
Eisner’s direct supervisor, Steve McGrath – the person who would normally
conduct the review – retired and was replaced by Francis Caputo.20 Although
Koerner was not Eisner’s direct supervisor, he “took it upon [himself]” to conduct
Eisner’s review.21 Koerner, for his part, justified singling out Eisner among all of
the people McGrath supervised because “the other people . . . were outstanding.”22
Koerner’s and Caputo’s testimony about why Koerner conducted the
review conflicts. Koerner testified that Caputo did not want to evaluate Eisner
because he was “uncomfortable” conducting the evaluation and that McGrath had
declined to do so, although Koerner concedes he never spoke to McGrath after his
retirement in January 2012.23 Caputo, on the other hand, testified that Koerner
“came to me and said ‘I am going to do her evaluation.’”24
19
Pl. Mem. at 3.
20
See Def. 56.1 ¶¶ 30-31.
21
Plaintiff’s Koerner Transcript (“Pl. Koerner Tr.”), Ex. 12 to the
Declaration of Edward Hernstadt, counsel for plaintiff, in Opposition to
Defendants’ Motion for Summary Judgment (“Hernstadt Decl.”), at 141:22-23,
153:19-154:22.
22
Id. at 147:23-25.
23
Id. at 145:19-25, 152:21-25.
24
Plaintiff’s Caputo Transcript (“Pl. Caputo Tr.”), Ex. 14 to Hernstadt
Decl., at 87:16-24.
6
The review focused on three specific instances of poor performance.
First, the evaluation referenced her work in Matter of Rosenblum v. New York City
Conflicts of Interest Board (“COIB”). In June 2010, Eisner represented the COIB
at oral argument before the New York Appellate Division, First Department.25
Koerner testified that the COIB found her argument “terrible” and asked for her to
be removed from the case.26 This argument was reviewed by McGrath in her 2011
evaluation where he awarded her a “2” (out of 5, with 1 being the highest) for
“Courtroom Skills” and remarked that he “like[d] her toughness in court.”27
Nonetheless, Koerner referenced the argument made in the prior evaluation period
as the justification for giving Eisner a score of “2.5” for “Oral Communication.”28
Defendants, however, note that her work on the Rosenblum matter continued into
the 2012 evaluation period.29
Second, the evaluation referenced her work in the joint argument to
the New York Court of Appeals of Nash v. New York City Department of
25
See Def. 56.1 ¶ 38.
26
Id. ¶ 44.
27
2011 Evaluation, Ex. 2 to Hernstadt Decl., at 3.
28
2012 Evaluation, Ex. I to Eichenholtz Decl., at 3.
29
See Reply Memorandum of Law in Further Support of Defendants’
Motion for Summary Judgment at 6.
7
Education and Kahn v. Board of Education of the City School District of the City
of New York. Eisner worked on the Nash case prior to it reaching the Court of
Appeals while another ACC handled the Kahn appeal.30 Prior to argument, the
Court of Appeals requested “coordinated presentation of arguments, avoiding
undue repetition.”31
McGrath emailed Eisner to request that she either argue the
overlapping issues between Kahn and Nash – requiring her to be prepared to
answer questions about the record in Kahn – or allow the other ACC to take the
entire argument.32 McGrath made clear that “Either is ok with [the other ACC],
and it is your call. Which would you prefer?”33 Eisner chose the latter option.34
Koerner noted Eisner’s decision to allow the other ACC to conduct the entire oral
argument as his justification for her grade of “4” in the “Judgment” category on the
2012 evaluation.35
Third, Koerner criticized her work on the case of D’Angelo v.
30
See Def. 56.1 ¶ 50.
31
Court of Appeals Letter, Ex. K to Eichenholtz Decl.
32
See Nash/Kahn Emails, Ex. 6 to Hernstadt Decl., at SE0008159.
33
Id.
34
See id. at SE0008158.
35
2012 Evaluation at 2.
8
Scoppetta, an appeal from a case out of the Labor and Employment Law Division
of the Law Department. Defendant Georgia Pestana, Chief of the Labor and
Employment Law Division, was so displeased with Eisner’s work on the case that
she “made it quite clear to [Koerner] that if leave [to appeal] was granted,
[plaintiff] was to have nothing to do with the case.”36
Eisner does not contest the fact of Pestana’s complaint but instead
points out that at the same time Pestana complained to Koerner, Pestana was
simultaneously overseeing the Law Department’s defense of Eisner’s 2011 EEO
complaint.37 Eisner also notes that after the filing of the 2011 complaint, Pestana
directed that Eisner should no longer receive Labor and Employment cases – a
move Eisner complained of as retaliation.38
Despite the poor evaluation, the defendants testified that there was no
discussion about whether to terminate Eisner based on her performance at that
time.39
36
Def. 56.1 ¶¶ 7, 72 (quoting Defendants’ Koerner Transcript (“Def.
Koerner Tr.”), Ex. F to Eichenholtz Decl., at 49:11-15).
37
See 2011 Retaliation Allegation, Ex. 5 to Hernstadt Decl., at
D001591-92.
38
See id. at D001591-92.
39
See Def. Cardozo Tr. at 86:20-87:19, 121:9-122:9; Defendants’ Mills
Transcript (“Def. Mills Tr.”), Ex. C to Eichenholtz Decl., at 105:19-23.
9
2.
Hurricane Sandy Billing
On October 29, 2012, Hurricane Sandy struck New York City.
Eisner’s house took on “ten feet of salt water and sewage” and “[t]he lower level
was completely destroyed.”40 Eisner and her two children were evacuated by an
army vehicle to an emergency shelter at a local high school because Eisner had
broken her toes.41 Eisner and her family spent the next three weeks living with a
friend.42
Eisner’s emails to Caputo after the storm describe a “war zone.”43 She
did not have “Cable/Internet/phone” nor did she have “power or heat” and at one
point the friends hosting her “lost power themselves.”44 She noted that she had to
deal with “[c]ontractors, electrician, plumber, and deliveries” as well as “claims
adjusters for [her] car and house.”45 On November 16, 2012, Eisner returned to
work at the Law Department’s office.46
40
Def. Eisner Tr. at 140:22-141:8.
41
See id. at 138:10-21
42
See id. at 141:13-14.
43
Post-Sandy Emails, Ex. M to the Eichenholtz Decl.
44
Id.
45
Id.
46
See Def. 56.1 ¶ 106.
10
The dispute over her work and relevant billing centers on the time she
spent drafting a brief in the case of Haas v. Department of Education before
returning to the office. Defendants characterized the amount of time she spent
working from home on the brief following Sandy to be “not only shocking but
highly incredible” given the circumstances.47 By defendants’ calculations, Eisner
spent over 60 hours on the case before the storm and then billed “7 hours a day
each work day” from home following Sandy.48 In total defendants calculate that
she spent 118.5 hours on the brief.49 Eisner submits that she worked, on average,
6.4 hours per day after Sandy and only billed 85 hours total on brief preparation.50
She notes that defendants’ calculation for time billed pre-Sandy includes
inadvertent double billing that she later attempted to correct.51
Caputo, finding the billing records unbelievable when viewed in light
of the quality of the draft she submitted, “advised plaintiff by email that he would
not approve her weekly time sheet” submitted in the wake of Sandy.52 At Caputo’s
47
Def. Mem. at 10.
48
Id.
49
See Def. 56.1 ¶ 112.
50
See Pl. 56.1 ¶¶ 110, 112
51
See id. ¶ 98.
52
Def. 56.1 ¶ 115.
11
request, Koerner compared Eisner’s appellate brief to that submitted to the lower
court. He concluded that “there was very little original drafting by Ms. Eisner” and
“the vast majority of it . . . essentially had nothing to do with the case.”53 The time
sheets were eventually approved after Eisner voluntarily struck fifteen hours.54
3.
Related EEO Complaints
Eisner filed two internal EEO complaints based on the aforementioned
incidents. First, following receipt of the negative 2012 evaluation, Eisner filed an
internal EEO charge with Goode-Trufant on September 10, 2012, alleging the
negative review was the product of discrimination and retaliation.55 Second, on
November 29, 2012, Eisner filed a similar internal complaint of discrimination and
retaliation regarding the fact that “time sheets were not approved and, as a result,
one paycheck was on hold.”56
Goode-Trufant consolidated the two appeals, conducted an
investigation, and issued a finding of “no probable cause.”57 Eisner contends that
53
Def. Koerner Tr. at 280:12-17.
54
See Pl. Mem. at 20.
55
See Def. 56.1 ¶ 127.
56
Id. ¶ 128 (quoting Def. Goode-Trufant Tr., Ex. E to Eichenholtz Decl.,
at 258:14-259:4).
57
Id. ¶ 129.
12
Goode-Trufant’s investigation was deficient because she “failed to interview
Eisner, Caputo, or [defendant Michael] Cardozo, [Corporation Counsel for the Law
Department]” and “did not check into any of the facts alleged by Eisner . . .
regarding Rosenblum, D’Angelo or Nash.”58 In addition Eisner alleges that the
complaint should have been “sent to another agency for investigation” pursuant to
New York City EEO policy because “the head of the Law Department [Cardozo]
[was] personally involved.”59
III.
LEGAL STANDARD
Summary judgment is appropriate where, “viewing the record in the
light most favorable to the non-moving party . . . ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’”60 “In
making this determination . . . we resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is
sought.”61 “A fact is material if it might affect the outcome of the suit under the
58
Pl. 56.1 ¶ 129. Cardozo is allegedly implicated in the investigation
because Eisner contends he reviewed her 2012 evaluation. See id. ¶ 32.
59
Id. ¶ 127.
60
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir.
2015) (quoting Fed. R. Civ. P. 56(a)) (quotation marks and citation omitted).
61
Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015)
(quotation marks and citation omitted).
13
governing law, and an issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”62
“The moving party bears the burden of showing the absence of a
genuine dispute as to any material fact.”63 To defeat a motion for summary
judgment, the non-moving party must “‘do more than simply show that there is
some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.’”64 “If the non-moving party has the
burden of proof on a specific issue, the movant may satisfy its initial burden by
demonstrating the absence of evidence in support of an essential element of the
non-moving party’s claim.”65
“‘The function of the district court in considering the motion for
summary judgment is not to resolve disputed questions of fact but only to
62
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S.Ct. 2675 (2013) (quotation marks, citation, and alterations omitted).
63
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.
2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
64
Robinson, 781 F.3d at 44 (quoting Brown v. Eli Lilly & Co., 654 F.3d
347, 358 (2d Cir. 2011)).
65
Chen v. New Trend Apparel, 8 F. Supp. 3d 406, 430 (S.D.N.Y. 2014)
(citing Celotex v. Catrett, 477 U.S. 317, 325 (1986) (further citations omitted)).
14
determine whether, as to any material issue, a genuine factual dispute exists.’”66
“‘Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’”67
IV.
APPLICABLE LAW
A.
ADA Claims
Both discrimination and retaliation claims brought under the ADA are
analyzed under the familiar McDonnell Douglas burden-shifting framework.68
Under this framework “[a] plaintiff must establish a prima facie case; the employer
must offer through the introduction of admissible evidence a legitimate
non-discriminatory reason for the discharge; and the plaintiff must then produce
evidence and carry the burden of persuasion that the proffered reason is a
pretext.”69 In order to demonstrate pretext, the plaintiff must show both that the
66
Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015) (quoting
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)).
67
Crawford, 758 F.3d at 486 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
68
See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)
(ADA discrimination claims); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d
Cir. 2002) (ADA retaliation claims).
69
Sista, 445 F.3d at 169 (citing Heyman v. Queens Vill. Comm. for
Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68, 72 (2d Cir.
1999)).
15
proffered reason is “false and that discrimination was the real reason” for the
adverse action.70
There is an open question in the Second Circuit on which causal
theory courts should apply when evaluating whether discrimination or retaliation
constitutes the “real reason” for the adverse action. Previously, in Parker v.
Columbia Pictures Industries, the Second Circuit held that “a plaintiff need not
demonstrate that disability was the sole cause of the adverse employment action.
Rather, [s]he must show only that disability played a motivating role in the
decision.”71 However, the Supreme Court’s opinions in Gross v. FBL Financial
Services., Inc. and University of Texas Southwestern Medical Center v. Nassar,
raised the standard of proof for Age Discrimination in Employment Act (“ADEA”)
and Title VII discrimination claims from a motivating factor standard to a “but-for”
causal standard.72
The Supreme Court’s reasoning casts doubt on the standard applicable
to the ADA. In both cases the Court focused heavily on the statutes’ use of the
70
Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995) (citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
71
204 F.3d 326, 337 (2d Cir. 2000).
72
557 U.S. 167 (2009); 133 S. Ct. 2517 (2013).
16
causal word “because” in reaching its conclusion.73 Because the ADA uses this
same wording, numerous circuits have concluded that the ADA likewise requires
proof of but-for causation.74 The Second Circuit, for its part, has treated this issue
as an open question without explicitly overturning Parker.75
In light of the Second Circuit’s treatment of the issue as an open
question, I conclude that the “but-for” standard applies to ADA claims. The ADA,
ADEA, and Title VII all “bar discrimination ‘because of’ an employee’s age or
disability, meaning that they prohibit discrimination that is a ‘“but-for” cause of
73
See Gross, 557 U.S. at 176 (“[T]he ordinary meaning of the ADEA’s
requirement that an employer took adverse action ‘because of’ age is that age was
the ‘reason’ that the employer decided to act. . . . It follows, then, that under [the
ADEA], the plaintiff retains the burden of persuasion to establish that age was the
‘but-for’ cause of the employer’s adverse action.”); Nassar, 133 S. Ct. at 2528
(“This enactment, like the statute at issue in Gross, makes it unlawful for an
employer to take adverse employment action against an employee ‘because’ of
certain criteria. Given the lack of any meaningful textual difference between the
text in this statute and the one in Gross, . . . Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the challenged
employment action.”).
74
See Widomski v. State Univ. of New York (SUNY) at Orange, 933 F.
Supp. 2d 534, 546 n. 8 (S.D.N.Y. 2013) (collecting cases).
75
See Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 Fed.
App’x 739, 745 n.3 (2d Cir. 2014) (“This ‘but-for’ standard might also apply to her
ADA retaliation claim.”).
17
the employer’s adverse decision.’”76 Finally, because the ADA contains no mixedmotive provision, there is no basis to construe the same statutory language
differently.77
B.
NYCHRL Claims
Discrimination and retaliation claims under the NYCHRL are
analyzed “under a similar framework” whereby “the plaintiff must establish a
prima facie case, and the defendant then has the opportunity to offer legitimate
reasons for its actions.”78 The burden then shifts to the plaintiff to demonstrate that
these reasons are pretextual.79
NYCHRL claims must be analyzed “separately and independently
from any federal and state law claims, construing [its] provisions ‘broadly in favor
of discrimination plaintiffs to the extent that such a construction is reasonably
76
Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir.
2012).
77
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir.
2010) (holding that there is no “mixed-motive” provision in the ADA that would
allow the court to distinguish the ADA from the ADEA).
78
Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 75-76 (2d Cir.
2015).
79
See id. at 76.
18
possible.’”80 Whether or not these claims are subject to the traditional McDonnell
Douglas pretext framework or the less demanding mixed motives theory remains
“unclear.”81 The Second Circuit, however, has noted that “‘the question [of which
standard to use] is also less important because the NYCHRL simplified the
discrimination inquiry: the plaintiff need only show that her employer treated her
less well, at least in part for a discriminatory reason.’”82 Therefore, “summary
judgment is appropriate if ‘the record establishes as a matter of law’ that
discrimination or retaliation ‘play [ed] no role’ in the defendant’s actions.”83
V.
DISCUSSION
A.
Retaliation
Eisner has successfully established a prima facie case of retaliation,
and defendants do not contest this point. To make out a prima facie case of
retaliation under the ADA, a plaintiff must demonstrate that: “(1) [s]he engaged in
an activity protected by the ADA; (2) the employer was aware of this activity; (3)
80
Id. at 75 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
715 F.3d 102, 109 (2d Cir. 2013)).
81
Mihalik, 715 F.3d at 110 n.8.
82
Id. (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78
n. 27 (1st Dep’t 2009)) (brackets in original).
83
Ya-Chen Chen, 805 F.3d at 76 (quoting Mihalik, 715 F.3d at 110 n.8).
19
the employer took adverse employment action against [her]; and (4) a causal
connection exists between the alleged adverse action and the protected activity.”84
Such a showing need only be “de minimis.”85
Eisner undoubtedly engaged in protected activity that her employer
was aware of when she filed her initial complaints of disability discrimination in
2009 and 2011. She subsequently suffered adverse employment action in the form
of the negative 2012 evaluation, the withholding of her direct deposit, and her
eventual termination.86 Finally, the negative evaluation, which served as a
justification for her eventual termination, was issued the first business day after she
settled her 2011 discrimination charge which allows for a causal inference between
the adverse action and the protected activity.87
84
Treglia, 313 F.3d at 719 (citing Cifra v. General Electric Co., 252
F.3d 205, 216 (2d Cir. 2001)).
85
Id. (citing Richardson v. New York State Dep’t of Corr. Serv., 180
F.3d 426, 444 (2d Cir. 1999)).
86
See id. at 720 (“Moreover, we have made clear that adverse
employment actions are not limited to ‘pecuniary emoluments.’ Lesser actions
such as negative employment evaluation letters may also be considered adverse.”
(citation omitted)).
87
Typically, temporal proximity is sufficient to prove causation when
the time the employer gains knowledge of the protected activity is followed closely
by the adverse activity. See Nagle v. Marron, 663 F.3d 100, 104 (2d Cir. 2011).
However, the Second Circuit has also considered the termination of a lawsuit to be
a relevant point for measuring temporal proximity. In Espinal v. Goord, the
20
Defendants offer two legitimate non-retaliatory reasons for the
adverse actions: (1) the negative 2012 evaluation and the specific cases of poor
performances included therein and (2) Eisner’s billing records and work following
Hurricane Sandy.
Because of the legitimate non-discriminatory reasons offered by
defendants, the burden shifts to Eisner to prove that the proffered reasons are
pretextual. Even drawing all inferences in Eisner’s favor, she has failed to carry
her burden of demonstrating that retaliation was the but-for cause of these adverse
employment actions.
1.
2012 Performance Review
Although Eisner contests the validity of Koerner’s assessment, she
fails to point to sufficient evidence that would permit the trier of fact to conclude
that retaliation was the but-for cause of the poor evaluation. Indeed, to the extent
that Eisner raises disputes of fact about whether the reasons put forward are false,
she falls short of demonstrating, as she must, that a fact finder could conclude that
Second Circuit found that “the passage of only six months between the dismissal of
[plaintiff’s] lawsuit and an allegedly retaliatory beating by officers . . . is sufficient
to support an inference of a causal connection.” See 558 F.3d 119, 129 (2d Cir.
2009).
21
these reasons are pretext for retaliation.88
Eisner points to the circumstances surrounding her evaluation as
evidence of pretext. Koerner authored only Eisner’s evaluation despite the fact
that McGrath’s retirement affected many attorneys, and there is conflicting
testimony about why Koerner conducted the evaluation himself instead of Eisner’s
then-supervisor Caputo.89 Yet the record makes clear that although the 2012
evaluation was her lowest ever, Eisner consistently performed worse than her
colleagues on these evaluations regardless of the evaluator.90 And while Eisner
points to the timing of the evaluation as suspicious, she does not contest the fact
that evaluations are always completed in the month of July to coincide with the
88
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“The
dissent takes this to mean that if the plaintiff proves the asserted reason to be false,
the plaintiff wins. But a reason cannot be proved to be ‘a pretext for
discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.”).
89
See Pl. Koerner Tr. at 147:8-23.
90
Eisner was already one of the lowest performing attorneys when she
was selected for transfer in 2010, and McGrath subsequently gave Eisner the
lowest grade of anyone in the Appeals Division in her 2011 evaluation. See ACC
Evaluation Scores, Ex. O to the Reply Declaration of Eric Eichenholtz in Further
Support of Defendants’ Motion for Summary Judgment. While Caputo never
completed an evaluation, he testified that “she [didn’t have] a good grasp [of brief
writing].” Id. at 111:18-25. The COIB and Pestana, as noted previously, also
complained about her work.
22
Law Department’s fiscal year.91
Even assuming Eisner has demonstrated that it was improper for
Koerner to conduct the evaluation, she must demonstrate that the evaluation itself
was flawed. This she fails to do. The specific factual issues that Eisner raises
about the three cases that formed the basis for the evaluation – Rosenblum,
Nash/Kahn, and D’Angelo – go to the reasonableness of the City’s judgment in
evaluating her performance, not the legitimacy or veracity of the reasoning.
Factual disputes of this sort do not prevent summary judgment because the Court
“‘do[es] not sit as a super-personnel department that reexamines an entity’s
business decisions.’”92
Rosenblum: Eisner disputes that the Rosenblum case should have
been included in that evaluation period given that it was also referenced in her
2011 evaluation conducted by McGrath. Her disagreement with Rosenblum’s
inclusion ignores the undisputed fact that her work in that case continued into the
2012 evaluation period. Regardless, contesting whether the case should have been
91
See Def. 56.1 ¶ 26.
92
Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014)
(quoting Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir. 1997)). Cf. Byrnie v. Town of
Cromwell, Bd. of Educ., 243 F.3d 93, 105 (2d Cir. 2001) (“That is to say that
‘[w]hile the business judgment rule protects the sincere employer against
second-guessing of the reasonableness of its judgments, it does not protect the
employer against attacks on its credibility.’”).
23
included misses the broader point about her performance, which was ultimately the
factor that justified termination. It is undisputed that the client in that case
“demanded that Ms. Eisner be taken off the case” because “they found her
argument in the Appeals Division to be terrible and they wanted her to have
nothing to do with the case.”93
Nash/Kahn: Eisner’s challenge related to the Nash/Kahn appeal
similarly misses the mark. Eisner does not point to any facts that draw into
question Koerner’s conclusion that the refusal to argue both cases reflected poor
judgment. Rather, she points solely to the fact that McGrath’s emails to her about
how the oral argument would be conducted were cordial.94 This is neither a
disputed fact, nor one that would lead to an inference of pretext or retaliation.
Nothing in the tone of McGrath’s emails undermines Koerner’s assessment of
Eisner’s judgment when she declined to argue a case before the highest court in the
state.
D’Angelo: Eisner concedes that Pestana was displeased with her work
on the D’Angelo case, but she challenges Pestana’s motivation for complaining
about it. At the time Pestana complained about Eisner’s work on D’Angelo, she
93
Def. Koerner Tr. at 85:17-86:5.
94
Pl. Mem. at 16-17.
24
was simultaneously supervising the attorney tasked with defending the Law
Department against Eisner’s EEO complaints.95 Once more, Eisner fails to raise a
dispute of fact about the evidence in the record that goes directly to her poor
performance. She concedes that Pestana and attorneys for the New York City Fire
Department, the client in this case, had to edit the brief she drafted and that she was
removed from the case.96 Eisner contests the extent of these edits, but that does not
create a genuine dispute of material fact about whether her performance on the
brief was so deficient that other attorneys were required to rewrite her brief.97
Finally, while it is true that Pestana may have had an incentive to denigrate Eisner,
this fact alone is insufficient to raise a plausible charge of retaliation given the
uncontroverted evidence regarding her performance on the case.
2.
Hurricane Sandy Billing
95
See Pl. 56.1 ¶ 33. It is worth noting that Eisner contradicts her own
argument that there is a conflict of interest. After Eisner filed her 2011 EEOC
complaint, Pestana decided not to assign her additional Labor and Employment
Division cases on “‘Conflict’ grounds.” 2011 Retaliation Allegation at 2. At the
time Eisner argued this decision was retaliatory and wrote “how does the fact that
an attorney in the Labor and Employment Division will defend against the Charge
create a conflict?” Id. She now contends that any criticism of her work on a Labor
and Employment Division case is inherently suspect because of a conflict of
interest.
96
See Pl. 56.1 ¶ 73.
97
See id.
25
Eisner concedes the facts surrounding the conditions she lived and
worked in after Hurricane Sandy. Yet she does not provide any evidence to contest
the fact that the brief she submitted contained “little original drafting” despite the
number of hours she billed.98 The issues she attempts to raise do nothing to
undermine the conclusion of her superiors that “[i]t was hard to believe she worked
the hours she claimed she worked based on what she produced.”99
Eisner’s attempt to split hairs about the precise number of hours she
billed does not raise an inference of retaliation when she concedes that Caputo and
Koerner’s conclusion that she did a “terrible job on [the brief] - is primarily a
matter of opinion[] . . . Plaintiff cannot seek to refute.”100 Nonetheless, in an
attempt to contest the legitimacy of this opinion, she cites to contemporaneous
emails criticizing her performance but notes they contain no “shock and horror.”101
This argument falls short.
Nothing in the record indicates that Eisner’s work product was ever
praised. In essence, Eisner’s argument as to the falsity of the proffered reasons
98
Def. Koerner Tr. at 280:13.
99
Def. Goode-Trufant Tr. at 260:21-25.
100
Pl. Mem. at 19-20.
101
Id. at 20.
26
boils down to her claim that although her work may have been poor, it was not that
poor. Yet defendants themselves concede this. They tell a story of a consistent
underperformer, not the worst employee ever. Koerner testified that “in light of
Nash and some of the other cases . . . it was not fair to the rest of the office to keep
her on the payroll” because “you don’t want people doing average work when you
have people coming in from other divisions that will do outstanding work.”102 For
these reasons, Goode-Trufant’s investigation and ultimate conclusion of “no
probable cause” are validated as well.103
Eisner has failed to carry her burden of demonstrating that a
reasonable fact finder could conclude that retaliation was the but-for cause of the
adverse employment actions.
B.
Disability Discrimination
Eisner’s disability discrimination claims must be dismissed because
she fails to make out a prima facie case of discrimination. A prima facie case of
102
Pl. Koerner Tr. at 260:10-14, 286:5-16. Accord id. at 226:6-13 (“But
when I put [Rosenblum] together with everything else, Nash and D’Angelo, it starts
to become a problem.”).
103
Def. 56.1 ¶ 129. While Eisner disputes whether Goode-Trufant
should have conducted the investigation herself, there is nothing in the record that
would contradict the underlying factual basis for Goode-Trufant’s conclusion.
Goode-Trufant extensively analyzed time records and remote access usage in
reaching her conclusion. See generally 2013 EEO Report, Ex. 3 to Hernstadt Decl.
27
disability discrimination under the ADA and the NYCHRL requires showing “(1)
[her] employer is subject to the [statute]; (2) [s]he was disabled within the meaning
of the [statute]; (3) [s]he was otherwise qualified to perform the essential functions
of [her] job, with or without reasonable accommodation; and (4) [s]he suffered
adverse employment action because of [her] disability.”104
Eisner has failed to adduce any facts that would give rise to an
inference of disability discrimination. She contends that “every single adverse
action against [her] flows from her initial disclosure of her disability.”105 Such a
temporal argument is unavailing. Her initial request for accommodation of her
disability occurred in 2009, and she was restored to her full-time position in the
Appeals Division in April 2012 after filing multiple EEO complaints. The claimed
adverse actions occurred over three years after the initial disclosure of her
disability, during which time she never again requested accommodation or
attributed poor performance to her disability.
Eisner also claims that Koerner, when conducting the 2012 evaluation,
relied on “negative statements about Eisner by her former supervisor Helmers” in
104
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013).
Accord Benimovich v. Fieldston Operating LLC, No. 11 Civ. 780, 2013 WL
1189480, at *7 (S.D.N.Y. Mar. 22, 2013).
105
Plaintiff Susan Eisner’s Memorandum of Law in Opposition to
Defendants’ Motion for Summary Judgment at 24.
28
particular comments that “Eisner cannot handle complex cases.”106 There is no
evidence in the record to attribute this opinion to Helmers. Koerner testified in his
deposition that “both [McGrath and Caputo] said that they would not trust her with
a complex case.”107
Eisner’s disability discrimination claim is nothing more than an
argument that because she suffered from a disability and endured an adverse
employment action, the former must have caused the latter. Such a tenuous
connection fails to make out even a prima facie case of discrimination under the
ADA or NYCHRL.108
C.
NYCHRL Retaliation Claim
In the absence of a viable federal claim, I decline to exercise
supplemental jurisdiction over the remaining retaliation claim under the NYCHRL.
The question of whether the NYCHRL claims survives summary judgment is a
close call and depends on the precise contours of the summary judgment standard.
106
Id.
107
Def. Koerner Tr. at 128:2-14.
108
See White v. New York City Dep’t of Educ., No. 12 Civ. 1376, 2014
WL 1273770, at *13 (S.D.N.Y. Mar. 28, 2014) (“[P]laintiff relies on conclusory
allegations that fall into the familiar and tired false syllogism: I am
African–American, something bad happened to me at work, therefore it must have
happened because I am African–American.”).
29
-AppearancesFor Plaintiff:
Edward Hernstadt, Esq.
Hernstadt Atlas, LLP
11 Broadway
Suite 615
New York, NY 10004
(212) 809-2501
For Defendants:
Eric J. Eichenholtz
Laura C. Rowntree
Assistant Corporation Counsel, NYC Law Department
100 Church Street
New York, NY 10007
(212) 788-0303
31
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