Opinion
No. 00 Civ. 7002
January 2, 2003
Noah A. Kinigstein, Attorney for Plaintiff.
Michael A. Cardozo, Corporation Counsel of the City of New York by: Lisa Grumet, of Counsel, Attorney for Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Jones brings an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., New York State Human Rights Law, Executive Law §§ 290 et seq., and New York City Human Rights Law, § 8-101 et seq. (collectively "NYHRL"), against Defendant New York City Health and Hospital Corporation ("HHC"), as well as against Defendants Fred Hutson, Edward Jackson and Frank J. Cirillo in their individual capacities. Plaintiff alleges that she suffered discrimination based on sex and race, and also that she suffered retaliation for complaining about this discrimination.
Defendants have filed a Motion for Summary Judgment with five different components: (1) Plaintiff has not made out a prima facie case of salary discrimination based on gender under Title VII or NYHRL; (2) Plaintiff has not made out a prima facie case of retaliation; (3) Plaintiff's salary discrimination claims are time-barred with respect to those pay periods that ended prior to the applicable limitations periods; (4) the court should not entertain Plaintiff's race discrimination claims, since they were not alleged in her EEOC charge; and (5) Plaintiff's claims against individual defendants under Title VII must be dismissed. For the reasons that follow, Defendants' Motion is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff, a fifty-eight year old African American woman, began working for Defendant HHC in 1993. She was hired as a Coordinating Manager in the security division. Her boss was a man named Lynn Cutler who held the titles of Assistant Director of Security and Director of Training and External Programs Development. He retired in 1995, which is where the dispute begins. Plaintiff says she essentially replaced Mr. Cutler as Director. Defendants, by contrast, claim she did not replace him; although she may have referred to herself as Director from time to time, her responsibilities were never as extensive as Mr. Cutler's.
It matters whether she replaced Mr. Cutler because as a Coordinating Manager, plaintiffs salary of roughly $40,000 was within the ranges set by the relevant guidelines. If she were a Director, however, the minimum salary should have been roughly $50,000. Her salary at the time of her termination is in dispute, but it was certainly below the Director level salary.
Plaintiff alleges that she began making noise about her salary and title (both of which she regarded as too low) to her immediate supervisor, Defendant Fred Hutson, Assistant Vice President for Corporate Services in 1997. She claims that he advised her to accept pay increases rather than press for a promotion; he did, however, recommend that she be made a "Director" in a "Justification for Promotion" memorandum he wrote some time in 1998. See Kinigstein Decl. Ex. J.
In 1999, Plaintiff was terminated. She alleges that HHC fired her in response to her complaints and assertions of her rights, whereas Defendants say that they terminated her because she explicitly refused to continue working. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") the next day.
Ms. Jones was replaced by two people — Michelle Lecoin-Okofor, a black woman, and Arnold Pack, a white man. Ms. Lecoin-Okofor, holding the title of Coordinating Manager, assumed some of Plaintiff's responsibilities and reported to Mr. Pack, who assumed others (and also, since he supervised Ms. Lecoin-Okofor, effectively assumed all of Plaintiff's responsibilities). Mr. Pack, as Director of Administrative Services at HHC, was paid a substantially higher salary than Plaintiff.
Mssrs. Jackson and Cirillo both held the title of Senior Vice President of Operations at HHC (although Mr. Jackson reported to Mr. Cirillo), in which capacity they either approved or denied applications for promotion, including that of Plaintiff in the instant action. Plaintiff alleges that after she was fired, she wrote Mr. Cirillo and asked him to investigate her charge of discrimination. According to her, he summarily dismissed these claims without investigating or giving her a chance to disprove the reasons she was given for her termination. Again, according to her, his actions violated procedures required by HHC guidelines and thus represent another instance of actionable retaliation.
LEGAL STANDARDS FOR SUMMARY JUDGMENT
Summary judgment should only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted).
In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e);Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment."Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). of course, this standard applies with equal force in discrimination cases as it would in any other case in the federal courts. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation" (internal quotations and citation omitted)). Thus, courts within the Second Circuit "have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, 1996 U.S. Dist. LEXIS 9659, at *14 (S.D.N.Y. 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997).
In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See Nora Beverages. Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
DISCUSSION
The court will address each of the five parts of Defendants' Motion in order.
1. Plaintiff has not made out a prima facie case of salary discrimination based on gender under Title VII or NYHRL.
For a prima facie case, the evidentiary requirements are minimal. A plaintiff must show that "(1) she is a member of a protected class, and (2) she was paid less than non-members of her class for work requiring substantially the same responsibility." Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999). She must also show discriminatory animus on the part of her employer. Id. (citation omitted). With respect to Plaintiff's claim of salary discrimination, the court concludes that there remains a genuine issue of material fact. Specifically, there is some evidence that Ms. Jones was acting as a Director and that her superiors considered her a Director. Under those circumstances, that she was not paid a Director's salary prompts the question, "why not?" which is a question for trial. Plaintiff also provides some evidence that her termination and the reasons given for it occurred under circumstances giving rise to an inference of discrimination. See Belfi, 191 F.3d at 140; see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) ("[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation" (emphasis in original omitted)).
Accordingly, the first part of Defendants' Motion is DENIED.
2. Plaintiff has not made out a prima facie case of retaliation.
"To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (citations omitted).
Defendants submit that although plaintiff complained about her salary time and again, until she filed the charge with the EEOC (after she was terminated), she never suggested that her low salary was a function of her gender. At her deposition, when asked if she "ever complain[ed] to anyone at HHC that [she was] being discriminated against on the basis of gender," she responded, "No, I can't remember. I might have, but I doubt it." Grumet Decl. Ex. D (Pl.'s Dep.) at 86-87. Accordingly, defendant submits that the second element, that she prove the employer was "aware of the protected activity," is not met. Many employees complain about their salary — that activity is clearly not protected under Title VII. Unless Plaintiff can show that her complaints were based on an allegation of gender discrimination (in which case they would be entitled to protection), and that her employers understood or should have understood them as such, she cannot assert retaliation.
Plaintiff responds by referring to an affidavit sworn and filed after defendants moved for summary judgment in which she explains her deposition testimony as confused. She thought she was being asked whether she filed a written complaint, not whether she talked to anyone about discrimination. In fact, she swears, she did complain about discrimination on many occasions. See Jones Decl.
Unhappily for Plaintiff, "it is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124-25 (2d Cir. 1987). Further, "a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Raskin v. Wyatt Co., 125 F.2d 55, 63 (2d Cir. 1997) (citation omitted). Accordingly, the court concludes that there is no issue of material fact with regard to whether Defendants were aware, prior to terminating plaintiff, that she had complained of discrimination.
However, plaintiff has a second claim of retaliation — that after she was fired, she complained to Mr. Cirillo in writing, and that he dismissed her claims without investigating or giving her a chance to disprove the reasons she was given for her termination. This failure to investigate or provide an opportunity to be heard, she alleges, are contrary to the procedures required by the relevant HHC guidelines. Those guidelines, however, explicitly leave the decisions regarding which procedures are necessary to the official reviewing the termination: "The reviewer [in this case, Mr. Cirillo] shall use his/her own discretion on the appropriate method for reviewing the adverse managerial decision if asked to do so by the Group 11 employee [Plaintiff]. However, it is specifically intended that no formal hearing shall be conducted." Kinigstein Decl. Ex. E, ¶ 6(B). Again, the court finds that there is no issue of fact remaining for trial with respect to this claim.
In light of the foregoing, the second part of Defendants's Motion for Summary Judgment is GRANTED.
3. Plaintiffs salary discrimination claims are time-barred with respect to those periods prior to the applicable limitations periods.
In National R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2073 (2002), the Supreme Court held that where a plaintiff alleges discrete acts of discrimination, such as a failure to promote or termination, he or she may not recover for acts which occurred outside the 300 day Title VII statute of limitations. This holding invalidated that part of the continuing violation doctrine developed by the Second Circuit in a series of cases on which Plaintiff relies See, e.g., Lambert v. Genessee Hosp., 10 F.3d 46 (2d. Cir. 1993). Accordingly, the third part of Defendants' Motion for Summary Judgment is GRANTED.
The fourth and fifth parts of Defendants' Motion — (4) the court should not entertain race discrimination claims, since they were not alleged in her EEOC charge, and (5) Plaintiffs claims against individual defendants under Title VII must be dismissed — are GRANTED as unopposed.
The trial in this matter, originally scheduled to begin Monday, January 27, 2003, is hereby rescheduled to begin at 11:00 a.m. on Monday, April 21, 2003. Pre-trial memoranda and a proposed pre-trial order are to be filed on or before March 21, 2003.
SO ORDERED.