Summary
holding that union grievances that do not allege discrimination do not qualify as protected activity under Title VII
Summary of this case from Littlejohn v. Thompson Elec. Co.Opinion
No. 01 Civ. 3945 (TPG).
August 23, 2004
Opinion
This is an employment discrimination action brought by plaintiff Manuelita Clemente against her employer, defendant New York State Division of Parole. Plaintiff alleges that she was discriminated against on the basis of her race and sex in violation of Title VII of the Civil Rights Act of 1964.
It should be noted that plaintiff's amended complaint stated claims under the U.S. Constitution and § 1983, as well as under the New York City Administrative Code. Plaintiff has dropped all of those claims.
Defendant moves for summary judgment on all of plaintiff's claims. For the reasons set forth, the motion is granted.
FACTS
The following facts are taken from the pleadings and the submissions on the current motion. It should be noted that the factual submissions on the motion are both voluminous and disorganized. The parties have submitted complete transcripts of four depositions, as well as hundreds of pages of documents. Most of this material is not even mentioned in the briefs. For its statement of facts, the Court is relying largely on what is referred to in the briefs.
Plaintiff is a Hispanic female. Her educational background includes an undergraduate degree in psychology and a masters degree in social work. Plaintiff testified that the focus of her training was in sexual abuse and adolescent psychology. Plaintiff is bilingual in English and Spanish.
Since January 1994 plaintiff has been employed by the New York State Division of Parole. From that time until 1996 plaintiff worked in two different New York City correctional facilities supervising inmates who were participating in work release programs.
In 1996 a new unit, the Special Offender Unit ("SOU"), was formed in the Division of Parole. The SOU is a unit located in New York City designated to handle parolees that require specialized and intensive supervision, including parolees convicted of sexual offenses, high-level drug offenses, and violent crimes.
Plaintiff was part of the initial group of five parole officers who formed the SOU. She, like other parole officers, was assigned to and worked with partners during her time with the SOU. Plaintiff's first partner in the unit was a parole officer named Cindy Morey, who is a Caucasian woman. After several months working with Morey, plaintiff was assigned to work with a parole officer named David Segal, who is Caucasian. The other officers in the unit were Cory Burke, an African-American man, and Cathy McGiver, an African-American woman. Some time in 1999 the SOU grew, with the departure of Morey and the addition of Richard Rosado, a Hispanic man, Anthony Cotov, a Caucasian man, Billy Davis, an African-American man, Clifford Jones, an African American man, Rosa Nunez, a Hispanic woman, and Barbara Corse, an African-American woman. At some point after 1999, Cotov became plaintiff's partner.
Plaintiff's immediate supervisor was a Senior Parole Officer, who was in turn supervised by an Area Supervisor. When plaintiff began with the SOU her Senior Parole Officer was Gregory Freeman, a Caucasian man. After Freeman left the SOU, some time in 2000, plaintiff's Senior Parole Officer was William Pondor, an African-American man. The Area Supervisor at the beginning of plaintiff's time in the SOU was Gus Persons. Several months after the SOU began, Persons was replaced by Edward Rendelstein. Persons and Rendelstein are both Caucasian. Somewhere higher in the chain of supervision was a Regional Director. That position was held by Rick Levy, a Caucasian man, at all times relevant to the instant action.
During the first two years of her time in the SOU, plaintiff had the opportunity to participate in several "high profile" cases that received local and national media attention. Plaintiff and her partner, Segal, were apparently both featured in a television show profiling the work of the SOU, broadcast on the cable television channel AE. Plaintiff was also involved in a number of arrests that received attention from the news media. Among these arrests was a case involving a parolee who had sexually victimized a large number of children. Plaintiff received a Medal of Honor from the Division of Parole for her role in the arrest of that individual. Plaintiff also received numerous other commendations between 1996 and 2000 for her work in the SOU.
Plaintiff alleges that beginning in 1998, due to animus that had developed as a result of her media exposure, she was subjected to acts of discrimination and a hostile work environment by her supervisors. In particular, plaintiff alleges that Freeman, often at the direction of Rendelstein or Levy, excluded her from certain assignments and opportunities within the SOU, and subjected her to unwarranted disciplinary measures, based on animus against her as a Hispanic woman. Plaintiff's allegations regarding these incidents are as follows.
In April 1998 the SOU was assigned to supervise a parolee by the name of Angelo Patterino, who was a confidential informant in an organized crime case. The case was unique in that supervision of the parolee would involve working closely with the FBI. According to plaintiff's and Freeman's deposition testimony Freeman initially assigned the case to plaintiff. Approximately two weeks after that initial assignment was made, the case was reassigned to parole officer Segal, a Caucasian male, who at that time was plaintiff's partner.
Plaintiff testified that she found out about the reassignment from Segal, who informed her that he had been called to meet with Levy, Rendelstein, and Freeman, and that they had instructed him to take the case. Plaintiff testified that Segal told her that at the meeting Levy said that he wanted a man to handle the case. Plaintiff also testified that immediately after her conversation with Segal, she confronted Rendelstein and Freeman and told them that she believed that the Patterino case had been taken away from her because the Division of Parole did not want women working on high profile cases. According to plaintiff, Rendelstein and Freeman's responded that the decision was Levy's responsibility.
Segal's deposition testimony described being called to a meeting with Levy, Rendelstein, and Freeman, and being told that the Patterino case would be reassigned from plaintiff to him. He testified that he did not recall any discussion of the case being reassigned to him because he was a man. Segal also testified that, following the meeting with Levy, Rendelstein, and Freeman, he spoke with plaintiff and told her that the Patterino case was being reassigned to him. According to Segal, in the course of this conversation there was "no mention of gender."
Rendelstein testified at his deposition that he had instructed Freeman to reassign the case, based on direction from Levy. Rendelstein testified that Levy wanted the case reassigned based on the fact that Segal had prior experience as a New York City police officer, and would therefore be better qualified than plaintiff to work closely with the FBI.
Plaintiff alleges that she was wrongfully removed from an assignment for a second time in October 1998. During that time the SOU participated in an operation with the New York Police Department to patrol a section of Central Park in search of a murder suspect. Plaintiff was assigned to the operation, which took place over a number of days. Plaintiff testified that, because the patrols took place late at night, and the parole officers participating in the operation were also performing their regular daytime duties, participating parole officers earned overtime pay.
Plaintiff testified in her deposition that, several days into the operation, Freeman called her at home to inform her that that evening's patrol had been cancelled. According to plaintiff, when she arrived at work the next morning she discovered that the previous night's patrol had in fact taken place, and that she had been replaced by Parole Officer Corse. Plaintiff testified that two days later she was summoned to a meeting with Rendelstein and Freeman, and was told that she was being removed from the Central Park operation. According to plaintiff, Rendelstein told her that she had made negative statements about the Division of Parole during one of the Central Park patrols, and that she was therefore barred from participating in the Central Park operation, or any other special operations for the foreseeable future. According to plaintiff, the allegation was untrue. Plaintiff testified, and Rendelstein confirmed in his deposition testimony, that Freeman was the source of the allegation.
Plaintiff contacted her union representative to complain about her removal from the Central Park operation, and a meeting was held on or about November 24, 1998 with plaintiff, two union representatives, Freeman, Levy, and an assistant regional director, Goldschmidt. Plaintiff testified that at that meeting, Freeman stated a different basis for plaintiff's removal from the operation than what she had been told earlier, namely that plaintiff had offended a NYPD officer on a prior occasion that was unrelated to the Central Park operation. There is no indication from plaintiff or any other source that any allegations of discrimination were discussed at that meeting. In any case, according to plaintiff, there was no action taken at the meeting. Plaintiff testified that her exclusion from participating in special operations ended one or two weeks after this meeting.
The next incident of discrimination alleged by plaintiff took place, according to her deposition testimony, in "early 1999." Plaintiff testified that on two occasions her paychecks did not include payment for overtime hours that she had worked and for which she had submitted timesheets to Freeman. According to plaintiff, Freeman held her time sheets instead of approving them and submitting them to Albany, as a result of which plaintiff's paychecks did not reflect the extra hours she had worked. Plaintiff testified that on both occasions, when she did not receive her money, she contacted an individual named Brown who apparently worked in the Albany office. According to plaintiff, Brown spoke to Freeman, who subsequently submitted plaintiff's time sheets, and plaintiff eventually received her full overtime compensation. Freeman testified in his deposition that he had no memory of any contact with Brown or of having failed to submit plaintiff's time sheets.
In late October 1999 plaintiff received a "counseling memo" from Freeman stating that "Violation of Parole" reports that had recently been prepared by plaintiff did not meet Division of Parole standards. The memo instructed plaintiff to seek writing skill training within the Division. Plaintiff wrote a response to the counseling memo, denying that her reports were deficient and asking to see the reports to which Freeman referred. Plaintiff testified that she received no response.
At some point shortly thereafter, apparently in November 1999, plaintiff filed a grievance with her union regarding the above incident. Plaintiff requested in her grievance that she be allowed to see the reports that Freeman alleged were deficient. There is no indication that plaintiff's grievance included any allegation of discrimination. The grievance was apparently pursued through one meeting. Plaintiff testified that no further action was taken after the initial meeting, and that she never saw the reports. Plaintiff testified that she took the necessary steps to arrange for writing skill training, but that she never attended the training and that Freeman never pursued the issue.
On December 29, 1999 plaintiff received another counseling memo from Freeman. This memo stated that on December 24, 1999 plaintiff had met with parolees whom she was supervising, and had done so in an unsafe manner, allegedly by meeting with several parolees at one time in her office. According to plaintiff, the counseling memo misstated the manner in which she had met with the parolees, and in fact she had never been alone with more than one individual in her office. Plaintiff stated this objection in a written response to Freeman's memo on December 30, 1999. Plaintiff testified that Freeman never responded to her rebuttal, and that there were no repercussions from the incident.
On January 12, 2000 plaintiff filed a charge of race and sex discrimination with the EEOC against the New York State Division of Parole, Richard Levy, Edward Rendelstein, Gregory Freeman, and William Pondor. The charge stated that the four respondents had subjected plaintiff to "ongoing" discrimination, and attached documents and plaintiffs' personal notes describing the events set forth above. It should be noted that, although the charge names Pondor as a respondent, it is not clear to the Court what role Pondor had in plaintiff's employment in January 2000, as Freeman was apparently still plaintiff's Senior Parole Officer at that time.
On January 21, 2000 Freeman sent plaintiff a memo instructing her to transfer her entire sex offender case load to Parole Officer Burke. Burke, a male, African-American officer, apparently did not speak Spanish. According to plaintiff, many of the sex offenders she supervised spoke only Spanish. Plaintiff testified in her deposition that the loss of these cases, which required intense supervision and extra hours, denied her the opportunity to earn overtime pay. Plaintiff also testified that, based on inquiries she made in the SOU, she was the only officer whose entire sex offender case load was transferred to another officer. Freeman testified that he ordered the transfer of plaintiff's sex offender cases based on instructions from Rendelstein to realign caseloads in the SOU after a significant influx of cases from other units.
In February 2000 plaintiff and her partner, parole officer Cotov, were apparently contacted by a representative of the cable television Discovery Channel, who was interested in interviewing plaintiff and Cotov for a documentary related to their work. Plaintiff testified in her deposition that Freeman instructed her and Cotov that they were not allowed to speak with anyone from the Discovery Channel without clearance from Freeman. Freeman confirmed in his deposition that he had instructed plaintiff to make sure that all details of her work with the Discovery Channel were cleared through her supervisors, and he testified that he did this on Rendelstein's instruction. Plaintiff testified that, eventually, Levy gave approval for her and Cotov to work on the Discovery Channel show without the need for prior clearance from Freeman for their activities.
Plaintiff testified that shortly after her work on the Discovery Channel program had finished, an incident occurred where Freeman wrongfully refused to authorize warrants for the arrest of two of plaintiff's parolees. She testified that the two individuals had violated their parole, and that in order to comply with the Division policy of apprehending parole violators within twenty-four hours, she needed Freeman's authorization on arrest warrants. Plaintiff testified that Freeman refused to authorize the warrants on the basis that the arrests would require overtime, and that he could not authorize overtime for plaintiff. Plaintiff testified that Freeman authorized the warrants a week later, and that she then apprehended the parolees. Freeman testified in his deposition that he did not recall refusing to issue warrants. Freeman further testified that, in any case, there was during this time period a general Division of Parole policy to limit authorization of overtime activities.
In March 2000 the Division of Parole announced that there were two vacancies for parole officers in the Gang Caseload Unit. Plaintiff applied for this position. According to plaintiff, assignment to the Gang Caseload Unit would not have entailed a higher rank or salary than her position in the SOU. However, plaintiff alleges that assignment to the Gang Caseload Unit was a stepping stone to promotion in the Division, that it would have allowed her to work with adolescents, which was her area of expertise, and that it would have offered more opportunities for overtime than did her work in the SOU.
Plaintiff, along with four other parole officer candidates, was interviewed for the Gang Caseload Unit by Senior Parole Officer Tennyson, who would be supervising the unit. The four other candidates were Cotov, a Caucasian man, Clifford Jones, an African-American man, Oscar Soto, a Hispanic man, and Deborah Giordano, a Caucasian woman. According to the testimony of Rendelstein, Tennyson ranked candidates based on their applications and interviews, and Rendelstein approved the selection of the candidates as ranked by Tennyson.
On or about March 17, 2000 plaintiff was informed that she was not accepted for a Gangload Case Unit position. The two parole officers selected for the positions were Soto and Giordano. According to the testimony of Rendelstein, plaintiff had been ranked third among the candidates, behind Soto and Giordano, who were ranked first and second, respectively. Plaintiff does not appear to have any complaint with Soto's selection. However, plaintiff alleges that she was more qualified than Giordano for the position, at least in part because Giordano had only worked as a parole officer for fewer than two years. According to plaintiff, Giordano received the position because she had a romantic relationship with Levy. Plaintiff testified on two occasions in her deposition that she believed this to be the case. Rendelstein testified that Giordano was ranked ahead of plaintiff because Giordano's educational background in law and criminal justice gave her the experience necessary to work closely with other law enforcement agencies.
On April 4, 2000 Rendelstein offered plaintiff the opportunity to transfer to the La Bodega Program, which involved monitoring parolees in drug treatment. Plaintiff declined the offer.
On April 18, 2000 plaintiff filed a complaint with the State Division of Human Rights alleging that the transfer of her sex offender cases, the denial to her of the Gang Caseload Unit position, and the general denial to her of special operations opportunities amounted to discrimination on the basis of her race and sex. Around this time plaintiff also apparently filed a union grievance concerning the denial of her application to transfer to the Gang Caseload Unit. It appears from the documents submitted on the current motion that this grievance was not pursued because of the pending EEOC and State Division of Human Rights charges.
In July 2000 a position became available in the Gang Caseload Unit. Plaintiff did not apply for that position.
On July 31, 2000 plaintiff received a counseling memo from Rendelstein stating that plaintiff had violated the Division's firearms policy. The memo stated that while plaintiff was in Albany attending a union meeting in her capacity as shop steward, she had been armed with her personal weapon, rather than with her state-issued weapon. The memo stated that, pursuant to Division policy, plaintiff was on-duty while attending the union meeting, and therefore should have been carrying her on-duty weapon. Plaintiff met with Rendelstein regarding the incident, and the memo was placed in her personnel file. Apparently no other disciplinary action was taken.
Apparently this fact came to the attention of Rendelstein as a result of an altercation in which plaintiff was involved in Albany, the details of which are not germane to the instant action.
Plaintiff sent Rendelstein a written response to the counseling memo on August 14, 2000. Plaintiff's response stated that she had been under the impression that she was off-duty while conducting union business in Albany. Plaintiff also objected to what she characterized as an "extreme" and "excessive" reaction by Rendelstein to the Albany incident.
On September 5, 2000 plaintiff filed a union grievance in connection with the Albany incident and the counseling memo. Plaintiff's grievance claimed that the counseling memo was a form of retaliation against her, and requested that the memo be removed from her file. Plaintiff's grievance apparently went through at least one level of administrative review, as a result of which the memo was withdrawn from her file in or about October 2000.
In about October 2000 plaintiff alleges that an incident took place in which she received a new partner assignment that compromised her ability to do her job safely. According to plaintiff, she was reassigned from Senior Parole Officer Freeman to Senior Parole Officer Ponder, and received a new partner, Parole Officer Fitzpatrick, who was transferring to the SOU from another unit. Plaintiff testified that under Ponder she was still in the SOU and supervised the same types of cases that she had handled under Freeman. However, according to plaintiff, her new partner, Fitzpatrick, was frequently away from New York City in order to undergo training in Albany. Plaintiff testified that Rendelstein instructed her that she was assigned to Fitzpatrick in order to train him, and that she could work only with Fitzpatrick and no other officer. Plaintiff testified that, although some parole officers preferred to work without partners, it was unheard of to prohibit a parole officer from requesting the assistance of a partner in the course of doing potentially dangerous work in the field. Plaintiff did not describe any specific instance in which she encountered a dangerous situation in which she needed a partner, but was unable to obtain one. Rendelstein, in his deposition, testified that plaintiff was reassigned to work with and train Fitzpatrick, but that Rendelstein never prohibited plaintiff from calling upon other parole officers for assistance when Fitzpatrick was unavailable.
In late November 2000 plaintiff was transferred to the Absconder Search Unit, another unit within the Division of Parole. Plaintiff testified that this was on her own initiative, after applying to fill a vacancy in the unit.
On January 24, 2001 the State Division of Human Rights rendered its Determination Order After Investigation and found "no probable cause to believe" that defendant had engaged in the discriminatory practices alleged by plaintiff.
On May 9, 2001 plaintiff, proceeding pro se, filed the instant action.
On June 29, 2001 the EEOC rendered its decision dismissing plaintiff's complaint.
On June 30, 2001 plaintiff, via counsel, filed an amended complaint.
DISCUSSION
I. Statute of Limitations
Defendant raises a threshold issue of what, if any, acts of discrimination alleged by plaintiff are time-barred under Title VII. Defendant argues that, under Title VII, plaintiff may not present evidence of acts occurring more than 300 days before April 18, 2000, the date on which plaintiff filed her discrimination complaint with the New York State Division of Human Rights. Thus, defendant argues that plaintiff's allegations that she was removed from high profile cases and special assignments in April and October 1998 are time-barred.
42 U.S.C. § 2000e-5(e) sets forth the time limits for filing charges of discrimination with the EEOC. Under that section, a plaintiff ordinarily has 180 days from the time of an alleged unlawful employment action in which to bring a charge before the EEOC. An exception to the 180-day time limit is provided "in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice." In such cases, the plaintiff has 300 days from the time of the alleged unlawful employment action in which to file a charge with the EEOC. Regardless of whether a plaintiff is faced with a 180-day or 300-day filing deadline, no acts occurring prior to the statutory period may be alleged as discriminatory conduct actionable under Title VII unless plaintiff can prove that the untimely acts constitute part of a hostile work environment that included certain acts occurring within the statutory 180- or 300-day period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116-17 (2002).
Here, it appears that plaintiff filed a discrimination charge first with the EEOC, in January 2000, and subsequently with the State Division of Human Rights. Thus, because plaintiff does not appear to have "initially instituted proceedings" with the State Division of Human Rights, the 180-day time limit, rather than the 300-day limit, applies. In any case, even if the 300-day time limit were to apply, the time would run back from the date that plaintiff filed her EEOC charge — January 13, 2000 — not from the date of her later-filed state charge, as defendant argues.
Under either the 180-day or the 300-day time limit, plaintiff's allegations regarding incidents in April and October 1998 are clearly time-barred, as they occurred more than a year prior to January 13, 2000. These allegations may be considered by the Court in plaintiff's hostile work environment claim, if some acts constituting a hostile work environment took place within the statutory period. See Morgan, 536 U.S. at 117-118;Dahbany-Miraglia v. Queensboro Community College, 03 Civ. 8058, 2004 WL 1192078, at *5 (S.D.N.Y. May 27, 2004). All of the other incidents of discrimination alleged by plaintiff, which begin in or around October 1999, are timely, as they occurred fewer than 180 days prior to January 13, 2000.
II. Title VII Disparate Treatment Claim
The framework for analyzing claims of discriminatory disparate treatment under Title VII is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). A plaintiff must put forth a prima facie claim of discrimination, which consists of proof that she is a member of a protected class, that she was qualified for the position she held or sought, that she suffered an adverse employment action, and that the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See McDonnell Douglass, 411 U.S. at 802; Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). Once the plaintiff has set forth a prima facie claim, the defendant is obligated to come forward with a legitimate, nondiscriminatory rationale for the conduct in question. Id. If the defendant states a neutral reason for the adverse action, "to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia University in the City of New York, 131 F.3d 305, 312 (2d Cir. 1997).
It must be said that the pleadings do not make entirely clear what acts by defendant plaintiff contends to have constituted disparate treatment under Title VII. Based on the facts set forth above, plaintiff appears to describe eight incidents occurring after November 1999 that involved either disciplinary measures, case assignments, or hiring decisions that she contends were discriminatory. These are: counseling memos written by Freeman in October 1999, December 1999, and July 2000; the untimely submission of her overtime sheets in 1999; the transfer of plaintiff's sex offender cases to a white male parole officer in January 2000; being prevented from working with the Discovery Channel in February 2000; the denial of plaintiff's application to transfer to the Gang Caseload Unit in April 2000; and the reassignment of her partner in October 2000.
With respect to all of these incidents, the Court concludes that plaintiff is unable to raise triable issues as to a prima facie case of discrimination, because none of the incidents constitutes an adverse employment action. The Second Circuit has explained that an adverse employment action is a "materially adverse change in the terms and conditions of employment."Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). Examples of such a materially adverse change are termination, demotion, decrease in wage or salary, a less distinguished job title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to the situation. Id. Moreover, for a change in working conditions to be "materially adverse" so as to be actionable under Title VII, the change "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id.
With respect to the three counseling memos, plaintiff testified that, although the October 27, 1999 memo directed plaintiff to undergo writing training, plaintiff testified that she was never actually required to do so. Plaintiff also testified that she suffered no repercussions from the December 1999 memo. Although the July 2000 memo was initially placed in her personnel file, which might be seen as a form of disciplinary action, plaintiff's union grievance resulted in the memo being removed from her file by October 2000. Thus, plaintiff has produced no evidence that the terms of her employment changed in any way as a result of the three counseling memos. Therefore, plaintiff is unable to make out a Title VII claim on the basis of any of the three memos.
The same can be said of plaintiff's allegations concerning overtime pay in 1999, the Discovery Channel incident in February 2000, and the partner reassignment in October 2000. Regarding plaintiff's overtime, assuming plaintiff's allegations to be true, the most that can be said was that a portion of her paycheck was delayed. This delay cannot be said to have been a materially adverse change in plaintiff's employment. With respect to the Discovery Channel project, it is again clear that at most Freeman's actions created a delay in plaintiff's ability to work with the Discovery Channel representative on a project that was above and beyond the scope of her work as a parole officer. This is not a materially adverse change in plaintiff's employment.
Slightly more extensive analysis is warranted as to whether the other three incidents alleged by plaintiff — the reassignment of plaintiff's partner, the transfer of plaintiff's sex offender caseload and the denial of plaintiff's application to transfer to the Gang Caseload Unit — constituted adverse employment actions. As for the partner reassignment, the Court notes initially that plaintiff apparently was assigned to Fitzpatrick for only one month before she left the SOU. Although plaintiff asserts that Rendelstein told her that she could not call upon any member of the SOU other than Fitzpatrick, even if she was in need, this appears to be a speculative assertion: Plaintiff does not describe any instance in the course of this month in which she in fact was inclined to call for backup or the assistance of a partner, but was prevented from doing so as a result of Rendelstein's instructions. Plaintiff testified that it was not unusual for a parole officer to work alone, and, notwithstanding the fact that she preferred to work with Cotov, the fact that she did work alone on occasion during October 2000 does not, by itself, constitute an materially adverse change in her employment.
Regarding the caseload transfer, plaintiff has testified that the loss of her twelve sex offender cases caused her to lose work that generated substantial overtime hours and that was considered "high profile." However, plaintiff also conceded in her deposition that in the same time period as the sex offender caseload transfer, a number of new cases were being transferred in to SOU from other probation units, and that she may have received some of these cases. Plaintiff also testified that at the time of the case transfer, she was carrying some fifty cases — the most in her unit — and that some other officers in SOU were carrying only eighteen or twenty-two cases.
In addition to plaintiff's testimony, records from the Division of Parole, submitted by defendant on the instant motion, appear to evidence a number of case transfers in December 1999. It must be noted that most of these records appear to have been printed from a Division of Parole computer database, and are not intelligible to the Court. However, a number of the documents are written memos listing cases to be transferred to and from particular parole officers. These memos show that plaintiff had a number of cases transferred from her, including twelve sex offender cases, but that plaintiff also had a number of cases transferred to her. The memos also show that several other SOU officers had cases transferred away from them.
It is true that plaintiff was apparently the only member of the SOU who had all of her sex offender cases transferred. Nonetheless, this still amounted to only twelve cases, which by plaintiff's own testimony still left her carrying a caseload that was equivalent to or heavier than other officers in the SOU. Plaintiff offers nothing other than her own conclusory assertions that the loss of her sex offender cases decreased the status or importance of her work, or actually caused her to earn fewer overtime hours than she otherwise would have. Additionally, it should be observed that, according to plaintiff's own testimony, the SOU specialized in high-supervision, high-profile parole cases. Thus, there is every indication that plaintiff had ample opportunity to work on challenging cases even without the sex offender cases. Indeed, she continued to earn departmental awards, and was featured in a Discovery Channel special, even after the sex offender caseload transfer. Therefore, although plaintiff's loss of her sex offender caseload was no doubt an alteration of her duties and responsibilities within the SOU, there is no evidence that the change was so material as to constitute an adverse employment action.
As for the denial of plaintiff's application to transfer to the Gang Caseload Unit, the Second Circuit has held that denial of a "truly lateral" transfer to a position of equal rank — regardless of whether such position is subjectively preferred by the plaintiff — does not constitute an adverse employment action.See Williams v. R.H. Donnely, 368 F.3d 123, 128 (2d Cir. 2004); see also Dunphy v. Delta Airlines, Inc., 290 F. Supp. 2d 311, 315-16 (E.D.N.Y. 2003). At several points in her deposition, plaintiff stated that the transfer to the Gang Caseload Unit would not have been a "promotion," but rather would have been simply a "different" and "more exciting" case load. Additionally, plaintiff testified that the Gang Caseload Unit transfer would not have constituted a promotion in rank or entailed a raise in pay. Plaintiff maintains on the current motion, however, that if she had received the transfer she would have had more opportunities for advancement within the Division of Parole, greater overtime potential, and greater exposure to work with adolescents, which she considered to be her field of expertise. There is nothing except the latter points to suggest an adverse employment action, and these points are too vague and uncertain to form the basis of a triable claim.
Therefore, the Court concludes that plaintiff's claim of disparate treatment in violation of Title VII must be dismissed.
II. Hostile Work Environment Claim
The Supreme Court has described a hostile work environment claim as arising when "the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Among the factors to be considered in determining whether harassment is sufficiently "severe or pervasive" to constitute a hostile working environment are: "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."Id. at 23. The plaintiff must show, based on the types of criteria enumerated in Harris and its progeny, "either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). Of course, it is "axiomatic" that a plaintiff bringing a hostile work environment claim under Title VII must also raise triable issues as to whether discriminatory animus in fact motivated the harassment that is alleged. Only a hostile work environment that is caused by discrimination — here on the basis of race and sex — is actionable under Title VII. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Richardson v. New York State Department of Correctional Services, 180 F.3d 426, 440 (2d Cir. 1999).
Plaintiff argues that the totality of the conduct occurring between 1998 and 2000, as described above, created a hostile work environment. Defendant argues that the facts do not raise a triable issue as to any harassment suffered by plaintiff that was sufficiently severe or pervasive to alter the conditions of plaintiff's employment. The Court notes that, as explained above, it must consider only those alleged instances of harassment that occurred within the statutory period, i.e., after mid-1999. As has already been stated, the Court may consider the acts alleged by plaintiff to have occurred prior to 1998 only if the Court concludes that a hostile working environment did exist within the statutory period.
The acts alleged by plaintiff to have occurred — beginning in 1999 with the withholding of her overtime pay, and extending to October 2000 with the reassignment of her partner — cannot be said to be sufficiently severe, or sufficiently pervasive, to be actionable under Title VII. The actions alleged to have been taken against plaintiff were not physically intimidating, verbally insulting, or even damaging to her employment in the long term. It has already been stated that none of the actions allegedly taken against plaintiff amounted to adverse employment actions. Moreover, plaintiff has not alleged that her performance was affected in any material way by the alleged harassment she encountered. In fact, plaintiff continued to receive commendations for her work with the SOU throughout the relevant time period for this action. As for pervasiveness, the Court concludes that six occurrences of relatively mild workplace difficulty over the course of a year do not, as a matter of law, constitute "pervasive" harassment.
It is also the case that plaintiff has come forward with no evidence that raises an inference of her alleged ill treatment being motivated by her race or sex. While it is true that incidents that are facially sex- or race-neutral may, under certain circumstances, help establish the existence of a hostile, discriminatory work environment, there must still exist "some circumstantial or other basis for inferring that incidents . . . neutral on their face were in fact discriminatory." Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). Plaintiff's theory of discrimination against her — that individuals in the Division of Parole did not want a Hispanic woman to receive the level of notoriety and success that plaintiff achieved — finds no support in the record. In fact, the record contradicts, rather than supports, plaintiff's theory of what motivated the alleged animus against her. According to plaintiff's own testimony, both sheand her white, male partner were prevented from working with the Discovery Channel in February 2000. Moreover, Rendelstein testified in his deposition that he had differences with Parole Officer Segal, an African-American man and plaintiff's former partner, because Segal wanted "to be a star" in a manner that got "in the way of him functioning properly." Segal was eventually transferred out of the SOU, at the request of Rendelstein, based on a single incident in which Rendelstein felt that Segal "embarrassed" the Division of Parole in front of the New York Police Department. Rendelstein testified that he attributed the incident to Segal's desire for recognition. In other words, the circumstantial evidence that is in the record reflects that plaintiff's supervisors discouraged parole officers across the board from trying to assume "star" roles in the Division. Plaintiff's subjective belief that she was targeted based on resentment against her as a successful Hispanic woman cannot, in itself, raise triable issues as to a discriminatory animus motivating the creation of a hostile work environment.
Therefore, the Court concludes that plaintiff has failed to raise triable issues as to the creation of a hostile work environment on the basis of her race and/or sex.
III. Title VII Retaliation Claim
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful practice by this subchapter." 42 U.S.C. § 2000e-3(a). A claim of retaliation under this section of Title VII is analyzed under a three-step burden shifting analysis. First, the plaintiff must make out a prima facie case of retaliation, which requires showing that the plaintiff participated in a protected activity, that the defendant knew of this activity, that plaintiff suffered an adverse employment action, and that there was a causal connection between the plaintiff's protected activity and the adverse employment action.See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). Once the plaintiff makes out a prima facie claim, the defendant must come forward with a legitimate, non-discriminatory explanation for the adverse employment action. Id. at 768. If defendant meets this burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether the employer's explanation was merely a pretext for retaliation. Id. at 769.
It is not entirely clear what plaintiff claims to have been protected acts that triggered adverse employment actions by defendant. The retaliation cause of action set forth in the complaint states, "All of the conduct complained of which occurred after the plaintiff complained of being relieved of her assignment because of her gender constitutes illegal retaliation" (Para. 24). This appears to refer only to the complaint plaintiff made to Rendelstein and Freeman in April 1998, after the reassignment of the Patterino case. Indeed, defendant's briefing on the current motion appears to assume that this is the complaint that forms the basis for plaintiff's retaliation claim, since this is the only instance of protected activity that defendant discusses.
However, in plaintiff's briefing on the current motion, she states that "the protected activity plaintiff engaged in was the multiple filing of grievances relating to the discriminatory conduct exercised by defendants." This position appears to be much broader than that taken by plaintiff in the complaint. However, plaintiff provides no further detail in her opposition to defendant's motion as to what complaints or grievances triggered defendant's alleged retaliation. The facts as set forth above indicate that plaintiff filed a number of union grievances between 1998 and 2000, but there is no indication that any of these grievances alleged discrimination. Therefore, they do not qualify as protected conduct under Title VII. Plaintiff did file an EEOC complaint in January 2000, however plaintiff makes no mention of this complaint in her brief in opposition to the current motion, nor does she refer to the January 2000 EEOC filing in her complaint. Plaintiff's complaint does reference her April 18, 2000 filing with the Division of Human Rights, but only in the context of setting forth plaintiff's exhaustion of remedies. This filing is not mentioned at all in the complaint's statement of the retaliation cause of action, and plaintiff does not refer to it in the briefing on the current motion. It is therefore clear to the Court that plaintiff has not stated a claim for retaliation that stems from these two administrative filings, and the Court will not consider them in analyzing her claim. Only the April 1998 complaint will be considered.
It is conceded on the current motion that when plaintiff complained to Rendelstein and Freeman that the Patterino case was taken from her because she was a woman, this constituted protected activity under Title VII. However, plaintiff is unable to point to any adverse employment action occurring in any proximity to the complaint. Plaintiff may not rely on the October 1998 Central Park incident because, as discussed above, that event occurred outside of the statutory period for bringing Title VII claims. No other acts are alleged by plaintiff until mid-1999, when Freeman allegedly failed to submit plaintiff's overtime and unfairly criticized plaintiff in counseling memos. These actions occurred more than a year after her April 1998 complaint — far too removed in time to raise a triable issue as to whether they were motivated by the complaint. Of course, any additional conduct alleged by plaintiff that occurred after 1999 is certainly too remote in time to be considered connected to her April 1998 complaint. In any case, as has already been discussed, the Court has concluded that none of the post-1999 incidents constituted adverse employment actions. Therefore, plaintiff is unable to raise a triable issue of fact as to a prima facie case for retaliation under Title VII.
CONCLUSION
Defendant's motion for summary judgment is granted as to all claims.
SO ORDERED.