Mosley v. City of Rochester et al

Filing 28

ORDER granting 22 Motion for Judgment as a Matter of Law. Clerk to close case. Signed by Hon. Michael A. Telesca on December 17, 2012. (MES)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GRETA E. MOSLEY,
Plaintiff,

10-CV-6415
DECISION AND ORDER

v.
CITY OF ROCHESTER AND
JOSEPH MUSTICO
Defendants,
________________________________________
INTRODUCTION

Plaintiff, Greta E. Mosley (“Plaintiff”), brings this action
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (“Title VII”), 42 U.S.C. Section 1981 (“§ 1981”), and
the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(“NYSHRL”),

alleging

supervisor,

retaliation

defendant

Joseph

after

Mustico

she

complained

(“Mustico”),

of

to

her

racial

discrimination while employed by the City of Rochester (“the
City”). The City and Mustico (collectively, “Defendants”) now move
for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure (“Rule 56”), contending that Plaintiff has not
produced sufficient evidence to support her claims of retaliation.
Plaintiff

opposes

the

motion

arguing

that

she

has

presented

sufficient evidence of a prima facie case of retaliation and that
the Defendants’ proffered reasons for their actions are a pretext
for discriminatory retaliation.

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After reviewing the entire record, the Court finds that
Plaintiff has not satisfied her burden of producing sufficient
evidence of discriminatory retaliation such that a reasonable jury
could find in her favor.

Accordingly, for the reasons discussed

herein, Defendants’ motion for summary judgment is granted and the
Plaintiff’s complaint is dismissed with prejudice.
BACKGROUND
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56 (a) and the exhibits attached thereto.
(Docket Nos. 22, 26.) Plaintiff, an African American, was employed
by the City in numerous positions for approximately twenty three
years until she was laid off from her position as a Senior
Administrative Analyst (“SAA”) in the Commissioner’s Office of the
Department of Community Development (“DCD”) on June 30, 2009. Prior
to that date, Plaintiff had a relatively successful career with the
City receiving multiple pay raises and many good evaluations.
Since her lay off in June 2009, Plaintiff worked for the City in a
temporary capacity for eight or nine months in 2011.
While Plaintiff was employed in the DCD, from 2006 through
June 2009, her supervisor was defendant Mustico, a Caucasian male.
The head of the DCD was Julio Vasquez, an Hispanic male. Plaintiff
worked with Mustico, Vasquez and four clerks, three of whom were
also African American females.

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From

2006

through

2007,

Plaintiff

was

responsible

for

organizing departmental regulatory records into a working log.
Plaintiff received a commendation from Mustico for her work in this
regard.

She also received a salary increase.

During 2007 and

2008, Plaintiff was tasked with additional assignments, including
performing National Environmental Protection Act compliance reviews
and drafting legislative proposals for departmental projects.

She

was solely responsible for many of these new tasks and she was
expected to work independently.
Plaintiff complains that other employees did not encounter
such work increases and that Mustico failed to train her to
adequately perform her new responsibilities.

The record, however,

is devoid of any facts regarding the work load or training of any
other employee of any race.

The record also does not contain any

evidence regarding the training responsibilities of supervisors
like Mustico, and Plaintiff did not witness Mustico providing
training to other employees. The record reveals that, in certain
cases, Plaintiff was directed to consult manuals or to seek out
advice from other departments. Also, for certain tasks, she worked
with a group of employees who assisted one another in completing
and understanding the assigned tasks. However, she complains that
Mustico was generally unavailable to her and unresponsive to her
requests for additional training.

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Plaintiff also complains that during her time at the DCD, she
was excluded from certain meetings and not given an office that she
requested. Other than Plaintiff’s statement that she was excluded,
the record does not contain any evidence regarding any DCD meetings
and Plaintiff admits that the office space she requested was
converted into a conference room.
her

allegations

that

she

was

There is no evidence to support
treated

differently

than

other

employee of any race with respect to either the office or the
alleged meetings.
During her 2007-2008 Performance review at the end of 2008,
Mustico stated that Plaintiff “does not have good knowledge of our
proposed agenda items” and that she “requires a high level of
supervision.”

He also stated that “she brings issues to my

attention expecting a resolution rather than resolving the issue
herself.”

In

other

areas

of

the

evaluation,

Plaintiff

met

expectations. He stated that Plaintiff and he were working on a
performance improvement plan, but a formal plan was not implemented
prior to Plaintiff’s lay off. Despite this performance review,
Mustico recommended a salary increase in January 2009. Plaintiff
alleges that shortly after this review, on or around January 6,
2009, she complained to Mustico of discrimination based on his
treatment of her during her time at the DCD.
At some point during the 2008-2009 fiscal year, Rochester
Mayor Robert Duffy requested that the heads of three different City

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departments, including the DCD, develop a consolidation plan for
the 2009-2010 budget year.

The department heads, Julio Vasquez,

Carlos Carballada and Molly Clifford, were tasked with eliminating
job functions and/or positions that were duplicative or overlapping
within the three departments.

The department heads created a

subcommittee of 13 City employees, including Joe Mustico, who were
asked to give recommendations to the department heads regarding the
consolidation process. A representative from the City’s human
resources department also sat on the subcommittee to ensure that
local, state, and federal labor laws and seniority rules were
followed during the process.
As a result of this consolidation effort, thirteen employees
across

the

three

departments

positions were eliminated.

were

either

laid

off

or

their

Employees were given advance notice

that the consolidation was occurring and that their positions were
in danger of being eliminated, and they were encouraged to seek out
other positions in the City.

All employees who were laid off were

placed on a “preferred list,” which gave them preference in hiring
for any position that became available at their current pay level
or below. The City generally conducts annual lay offs and affected
employees are offered positions at lower pay levels to retain
employment.
Plaintiff’s position as an SAA at the DCD was eliminated and
she was laid off on June 30, 2009. She was notified that her

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position was subject to a possible elimination in March of 2009.
There were two other SAA’s across the three departments, one had
more seniority than Plaintiff and the other, Laura Nobles, sought
out an alternative placement in a different department and was
hired.
Plaintiff was placed on the preferred list and offered a
position at a lower salary than her SAA position, which she
declined.

She alleges that she applied for two positions within

the City, but she did not receive a response.

There is no

information in the record regarding whether Plaintiff was qualified
for

either

of

the

positions

she

applied

for

or

any

other

circumstances surrounding her failure to secure one of these jobs.
She also complains that neither Mustico nor Vasquez assisted her in
finding an alternative placement, but the record indicates that the
human resources department was tasked with assisting employees with
this process.

They accomplished this by placing employees on the

preferred list.

Plaintiff remains on the preferred list to this

date and she secured a temporary position in 2011 due to her
position on the preferred list.
Based on her complaint of discrimination to Mustico in January
2009 and her subsequent lay off in June 2009, plaintiff alleges
that she was subject to discriminatory retaliation.

Plaintiff

alleges that she believes that Mustico recommended her lay off, but
she testified that she had no evidence that Mustico had any

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authority to do so.

The record reveals that the three department

heads made the final determinations regarding lay offs after
hearing recommendations from the subcommittee.

While Mustico was

a member of the subcommittee, there is no evidence in the record
regarding his role in making recommendations to the subcommittee or
to the department heads.
DISCUSSION
Pursuant to Rule 56, a court shall grant a motion for summary
judgment if the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed.R.Civ.P. 56(a).

Once the

movant has met this burden, the burden shifts to the nonmovant who
must “come forward with evidence to allow a reasonable jury to find
in his favor” on each of the elements of his prima facie case. See
Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir.2001); Celotex
Corp. v. Catrett, 477 U.S. 317, 325-27 (1986).
all

factual

inferences,

and

view

the

The court must draw

factual

assertions

in

materials such as affidavits, exhibits, and depositions in the
light most favorable to the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex Corp., 477
U.S. at 322. However, a nonmovant benefits from such factual
inferences “only if there is a ‘genuine’ dispute as to those
facts.” See Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776
(2007).

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The law is well established that “conclusory statements,
conjecture, or speculation” are insufficient to defeat a motion for
summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d
Cir. 1996). The nonmovant cannot survive summary judgment simply by
proffering “some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986), or presenting evidence that “is merely colorable, or is
not significantly probative.” See Savino v. City of New York, 331
F.3d 63, 71 (2d Cir.2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986) (citation omitted)). Rather, he must
“set out specific facts showing a genuine issue for trial.” See
Fed.R.Civ.P. 56(e)(2); See also D'Amico v. City of New York, 132
F.3d 145, 149 (2d Cir.1998) (“non-moving party may not rely on mere
conclusory allegations nor speculation, but instead must offer some
hard evidence showing that its version of...events is not wholly
fanciful.”).
Plaintiff’s
McDonnell

retaliation

Douglas

claims

burden-shifting

are

analyzed

framework.1

See

Douglass Corp. v. Green, 411 U.S. 792, 802 (1973).

under

the

McDonnell
Under this

framework, Plaintiff must first establish a prima facie case of
discriminatory retaliation by showing: (1) participation in a

1

Plaintiff’s claims under Title VII, the NYSHRL and Section 1981 are all analyzed under
the same burden shifting standards. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597,
609 (2d Cir. 2006); Choudhury v. Polytechnic Institute of New York, 735 F.2d 38, 44 (2d Cir.
1984).
Page -8-

protected

activity

employment

action;

known
and

to

(3)

the
a

Defendant;

causal

(2)

connection

an

adverse

between

the

protected activity and the adverse action. See Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006); Holt v.
KMI-Continental, 95 F.3d 123, 130 (2d Cir. 1996), cert. denied,
1997 WL 71191 (May 19, 1997); Tomka v. Seiler Corp., 66 F.3d 1295,
1308 (2d Cir. 1995) (citations omitted). Once a plaintiff has
established a prima facie case of discrimination, the defendant
must articulate a legitimate, nondiscriminatory rationale for its
actions. See Texas Dept. Of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981).

The burden then shifts to the plaintiff to

demonstrate that the employer’s stated rationale is merely a
pretext for discriminatory retaliation and that retaliation is the
true reason for the defendant’s actions. See McDonnell-Douglas
Corp., 411 U.S. at 802; see also Slattery v. Swiss Reinsurance
America Corp., 248 F.3d 87 (2d Cir. 2001).
Plaintiff raises claims for retaliation stemming from the
complaint she made to Mustico on January 6, 2009 and her subsequent
lay off.

Even assuming that Plaintiff has established a prima

facie case of discrimination, the Court finds that the Plaintiff
has

not

come

forward

with

sufficient

evidence

to

rebut

the

Defendants’ legitimate non-retaliatory reasons for their actions
such that a reasonable jury could find in her favor.

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Defendants have offered evidence that Plaintiff’s lay off was
part of a City-wide consolidation of three City departments in
which certain positions, including the position that Plaintiff
occupied,

were

eliminated

because

they

were

duplicative.

A

subcommittee of thirteen employees made recommendations to the
department heads regarding overlapping job titles and functions
across the three departments, and, ultimately, the department heads
made the final decisions with respect to which positions or job
functions would be eliminated. Personnel from the human resources
department

also

sat

on

the

subcommittee

to

ensure

that

the

consolidation process adhered to all federal, state, and local
labors

laws,

and

that

the

individuals

whose

positions

were

eliminated were given ample notice and the opportunity to seek out
other open positions within the City and that seniority policies
were followed. Plaintiff speculates that Mustico recommended her
lay off after she complained of discrimination.
no

evidence

in

the

record

regarding

However, there is

Mustico’s

role

on

the

subcommittee, including whether he made any recommendations to the
subcommittee or the department heads regarding any position. And it
is undisputed that Mustico did not have the authority to decide
which positions would be eliminated.
As a result of the consolidation, thirteen City employees were
either laid off or their positions were eliminated.
one of these thirteen individuals.

Plaintiff was

At the time, there were three

Page -10-

individuals under the SAA title in the three departments.

One

individual had more seniority than Plaintiff and her position was
not

eliminated.

The

other,

Laura

Nobles,

sought

out

another

position in another City department and was hired prior to the June
30, 2009 lay off date.

All employees who were subject to the

consolidation process and possible lay off were informed of the
possibility of a lay off and instructed to seek out other open
positions in the City.

Plaintiff did not find an alternate

position and she was laid off on June 30 2009.

Plaintiff was,

however, placed on a preferred list where she received a preference
to obtain any open position with the City at her current pay level
or below.

At some point, Plaintiff was offered a position that

would have resulted in a decrease in pay, but she declined the
offer.
Plaintiff complains that neither Mustico nor Julio Vasquez
helped her find another position at the same pay level before the
lay off date and that she was the only person offered a new
position at a lower pay level.

However, there is no evidence in

the record that Mustico or Vasquez helped any other employee secure
a new position, or that it was their duty to do so.

Further, the

representative from human resources who served on the subcommittee
testified that the human resources department was charged with
assisting

employees

in

finding

alternative

placements,

not

supervisors or department heads, and it accomplished this through

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placing employees on the preferred list for open positions.

He

further testified that each year there are individuals who are
offered lower paying jobs to avoid a lay off.

The only example in

the record of an individual who secured a job at the same pay level
after receiving notice of a possible lay off was Laura Nobles, and
she secured the new position through her own efforts.
Plaintiff

also

alleges

positions, but was not hired.

that

she

applied

for

two

open

However, the record is devoid of any

information regarding whether Plaintiff was qualified for these
positions

or

applications

any

other

that

circumstances

could

support

her

surrounding
claim

of

her

alleged

retaliation.

See e.g. Syracuse v. Roman Catholic Diocese of Brooklyn, 2010 WL
627114, *8 (E.D.N.Y. February 23, 2010) (“In pursuing her claim of
retaliation

against

defendant,

the

plaintiff...must

also

demonstrate that she was qualified for the position that she
sought...”).
Plaintiff

contends

that

the

temporal

proximity

of

her

complaint to Mustico to her layoff is sufficient evidence of
retaliation to withstand a motion for summary judgment.

While a

“strong temporal correlation” between a plaintiff’s complaints and
an

adverse

action

may

create

an

inference

of

discriminatory

retaliation, see Quinn v. Green Tree Credit Corp., 159 F.3d 759,
770 (2d Cir. 1998), under certain circumstances, courts have
determined

that

temporal

proximity

Page -12-

is

insufficient,

see

e.g.

Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87 (2d Cir.
2001)(where a plaintiff is subject to gradual disciplinary actions
prior to engaging in any protected activity temporal proximity is
insufficient to establish an inference of retaliation).
Here, the circumstances surrounding Plaintiff’s layoff are
such that the temporal proximity of her lay off to her complaint to
Mustico

do

not

retaliation.
thirteen

give

rise

to

an

inference

of

discriminatory

The consolidation process involved the lay off of

individuals,

of

various

races,

and

accomplished

the

elimination of two positions under the same title as Plaintiff’s.
There is simply no evidence in the record that Plaintiff’s position
was targeted due to her complaint to Mustico and her speculation
that

Mustico

recommended

her

layoff

in

retaliation

for

her

complaint of discrimination is insufficient to create a material
issue of fact. Further, the various complaints she has regarding
her general working conditions are not probative of a claim for
retaliation because they occurred before her alleged complaint of
discrimination and also, there is no evidence that Plaintiff was
treated differently than any other employee at the DCD.
Accordingly, for the reasons discussed herein, the Court finds
that

Plaintiff

has

not

established

a

claim

for

retaliation.

Therefore, the Defendants’ motion for summary judgment is granted.

Page -13-

CONCLUSION
Based on its review of the entire record, the Court finds that
Plaintiff has not presented evidence from which a reasonable jury
could conclude that the Defendants’ proffered reason for her lay
off was a pretext for discriminatory retaliation.
Defendants’

motion

for

summary

judgment

is

Therefore, the

granted

and

the

Plaintiff’s complaint is dismissed with prejudice.

ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
December 17, 2012

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