Opinion
Index No. 156319/2018 Motion Seq. No. 001
08-31-2023
EDRIS SAUNDERS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF CORRECTION and CITY OF NEW YORK, Defendants.
Unpublished Opinion
Motion Date 3/15/2022
PRESENT: HON. JUDY H. KIM, Justice
DECISION + ORDER ON MOTION
HON. JUDY H. KIM, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion for SUMMARY JUDGMENT.
Upon the foregoing papers, the motion by defendants the New York City Department of Correction ("DOC") and the City of New York (collectively, with the DOC, the "City") for summary judgment dismissing this action is granted in part, to the extent plaintiff's hostile work environment claims are dismissed, and otherwise denied, for the reasons set forth below.
FACTUAL BACKGROUND
The following factual recitation is adopted from plaintiffs Second Amended Complaint, her affidavit in opposition to the instant motion, and her examination before trial testimony, all of which are, for purposes of this motion, presumed to be true.
Plaintiff is a fifty-two year old African American woman. She served in the United States Navy from approximately 1995 to 2004, where she worked in food service administration. In this role, she was responsible for feeding five thousand sailors per day. After retiring from the Navy, plaintiff worked as a school food manager for the New York City Board of Education and a food service manager for Samaritan Village (NYSCEF Doc. No. 33 [Saunders EBT at pp. 13-15]). She has a bachelor's degree in Business Administration with a minor in Healthcare Services and an associate degree in Culinary Arts and Restaurant Management (NYSCEF Doc. No. 69 [Saunders Aff. at ¶3]).
In April 2010, plaintiff began working as a facility cook at Rikers Island and has remained in that position through the present, though she is currently on leave. After working as a cook, the next steps for promotion within DOC's food services department are Senior Cook, Food Service Manager, Food Service Administrator, and Executive Director of Food Service (NYSCEF Doc. No. 33 [Saunders EBT at pp. 15-17]).
In June 2010, plaintiff filed a complaint with the DOC's Equal Employment Opportunity Office for discrimination and retaliation, alleging that DOC Executive Director Richard Buthom had prevented her from being promoted to positions because she was a disabled veteran and a forty-four-year-old Black woman. In November 2011, plaintiff filed another EEO complaint against Buthom, alleging that she was denied promotions in retaliation for her first EEO Complaint. Following an investigation, the DOC concluded that there was "sufficient evidence to establish a violation of the EEO Policy" and directed that Buthom "should not participate in any future promotional opportunity involving [plaintiff]" (NYSCEF Doc. No. 79 [EEO recommendation]).
In 2013, plaintiff interviewed for another job within DOC, which she did not receive. She later learned that, after she left the interview for that position, Buthom said that she was a troublemaker and would not get the position (NYSCEF Doc. No. 33 [Saunders EBT at p. 22]). In 2016, plaintiff had a meeting with a Ms. Frankson from DOC upper management who asked plaintiff if she liked her job and said that plaintiff had "better stop complaining" because she could be fired (Id. at pp. 88-90).
In 2013, plaintiff commenced an action in Supreme Court, Queens County, asserting claims for discrimination and retaliation against the City, Buthom, and Richard Coleridge, a DOC Senior Cook (the "Queens County Action"). Plaintiff attests that this action settled in 2015 (NYSCEF Doc. No. 69 [Saunders Aff. at ¶ 15]) but provides no details as to the nature of this settlement. At some point after the Queens County Action was filed, Buthom left his job at the DOC and Coleridge was transferred to another DOC facility (See NYSCEF Doc. No. 33 [Saunders EBT at pp. 71-74]).
Plaintiff testified that, beginning in 2013, she was subjected to insulting remarks on a weekly basis including being called "crazy" by coworkers, including Buthom, Senior Cook Brown, Food Service Manager Ralston (formerly a Senior Cook), and Cook Coleridge, as well as a Correction Officer "Bullock" (Id. at pp. 40, 53-55, 61-62, 64, 81). Coleridge and Senior Cooks Hunt and Jackson told plaintiff that she would not get a promotion because she was an entitled veteran (Id. at pp. 28-29, 64-65, 72-73). Coleridge also told plaintiff every night that "what [she] did to [Buthorn] was wrong" (Id. at pp. 28-29). None of these individuals made hiring decisions involving plaintiff (Id. at p. 66).
Plaintiff applied for various positions within the DOC over the last decade but has not been selected for any of them. On September 9, 2013, plaintiff applied for the position of Prison Rape Elimination Act ("PREA") Manager but was not interviewed. On September 21, 2013, plaintiff applied for an Executive Director of Re-entry Services and Program Innovation position but was not interviewed. On March 31, 2016, plaintiff applied for a Health Services Manager position but was not interviewed. On April 28, 2016, plaintiff applied for a PREA Compliance Manager position but was not interviewed. On June 3, 2017, plaintiff again applied for a PREA Compliance Manager position but was not interviewed.
Plaintiff applied three times for Food Service Manager positions. On August 13, 2013, plaintiff applied for a Food Service Manager position but was not selected for an interview. On December 20, 2015, plaintiff applied for a Food Service Manager position but was not selected for an interview. This position was filled by Sharon Griffith. On March 5, 2017, plaintiff applied for a Food Service Manager position and was interviewed for this position on April 5, 2017 by Food Service Administrators Robert Haberman and Wanda Barr. According to plaintiff, Haberman did not say anything during the interview that plaintiff felt was discriminatory (Id. at pp. 24, 39). Stephen Shepherd, a 54-year-old Black male military veteran, was selected to fill this position.
On December 20, 2015, plaintiff applied for an Executive Director of Food Service position. Plaintiff was interviewed for the Executive Director of Food Service position by Cynthia Brown. At that interview. Brown told plaintiff not to listen to the rumors that Buthom was fired because of her prior EEO complaints and lawsuit (Id. at pp. 40-42). According to plaintiff, Glenn O'Connor, a white male, was hired for this Executive Director position (Id. at p. 42). The City, in its opposition, asserts that this position was, in fact, filled by Kazi Zaman, an Asian American male.
Plaintiff filed additional EEO complaints on June 9, 2017 and December 28, 2017 (the "2017 EEO Complaints") for retaliation and discrimination, alleging that Haberman had worked to deny her promotions because of her 2011 EEO Complaint (See NYSCEF Doc. No. 60 [June 2017 EEO Complaint] and 84 [Intradepartmental Memorandum]). The DOC's subsequent investigation, concluded on January 18, 2019, failed to substantiate plaintiff's allegations (NYSCEF Doc. No. 84 [Intradepartmental Memorandum]).
Plaintiff commenced this action on July 9, 2018. The operative pleading, plaintiffs Second Amended Complaint, asserts claims under the NYSHRL and NYCHRL for discrimination based race, sex, disability, and veteran status, alleging that defendants have repeatedly denied her promotions while promoting less qualified employees, many of whom were white men. She also asserts a claim for retaliation under the NYSHRL and NYCHRL alleging that she was denied promotions in retaliation for her 2011 EEO Complaint and her 2013 Action and that, after commencing this action, the overtime she has been assigned has been dramatically reduced (NYSCEF Doc. No. 32 [Second Amended Complaint at ¶¶ 27-53]).
While plaintiff's Second Amended Complaint also set out a claim against Robert Haberman under the NYSHRL for aiding and abetting in discrimination, plaintiff subsequently discontinued this action as against Haberman, with prejudice (See NYSCEF Doc. No. 67 [So-Ordered Stipulation dated November 19, 2021]).
The City now moves, pursuant to CPLR §3212, for summary judgment dismissing plaintiffs complaint, arguing that it has provided legitimate, independent, and nondiscriminatory reasons for failing to promote plaintiff, inasmuch as she was not qualified for the positions she sought or, if qualified, was still less qualified than other candidates who applied. The City submits the job posting for each position to which plaintiff applied (See NYSCEF Doc. No. 52) and asserts that plaintiff did not meet the requirements for these jobs as set forth in these postings.
The City also submits the affidavit of Ayinde Williams, the DOC's Director of Human Resources, attesting that
The normal promotional sequence for DOC culinary roles are Senior Cook, Food Service Manager, and Food Service Administrator: Senior Cooks are responsible for the supervision, daily work performance and training of Cooks and auxiliary kitchen workers. It is preferable to first be a Senior Cook before becoming a Food Service Manager in order to have sufficient cooking skills, an understanding of operations, and develop supervisory skills, among other skills that you typically do
not learn as a Cook. No one has received a promotion from Cook to Food Service Manager without first working as a Senior Cook.
A Food Service Manager is responsible for food preparation and service, supeiwising Senior Cooks and Cooks within the Food Service Unit, and maintaining familiarity with standard dietary and governmental oversight guidelines. Food Service Managers are required to achieve a baccalaureate degree or its equivalent; and two-years of full-time paid experience in the direct supervision of large-scale food preparation, cooking, and delivery as it occurs in a correctional setting.
A Food Service Administrator is responsible for the overall management and operation of all food service delivery operations within an inmate facility. Food Service Administrators are required to have at least one-year of supervisory experience; and a baccalaureate degree with a specialization in food service operations or a related field and one four-years of experience, or a high school diploma with six-years of full-time experience in food operations.(NYSCEF Doc. No. 38 [Williams Aff. at ¶¶ 3-8).
Williams further attests that, of the jobs to which plaintiff applied, no one was selected for the first Food Service Manager position (Id. at ¶ 10). The second Food Services Manager position to which plaintiff applied was filled by Sharon Griffith, a black woman born in 1973 (Id.). The third Food Service Manager position to which plaintiff applied was filled by Stephen Shepherd, a Black male veteran born in 1967 (Id.). The Executive Director of Food Service position was filled by Kazi Zaman, an Asian male born in 1963 (Id.).
The City submits a copy of Shepherd's resume which, it argues, establishes that he was more qualified than plaintiff given his prior direct supervision of large-scale food preparation during his service in the U.S. Navy as a Mess Management Specialist as well as twenty years of management experience as a Senior Cook in the DOC, which plaintiff did not have.
Finally, the City submits the EBTs of Wanda Barr, a DOC Food Service Administrator and Glenn O'Connor, the Senior Executive Director of Nutritional Services. Ban- testified that DOC's Personnel Department decides which applicants meet the qualifications for a given job postings and sends a list of candidates to be interviewed. These candidates are interviewed by DOC employees who would be their coworkers and supervisors in the new position, after which their recommendation is given to O'Connor, who makes the final decision (Id. at pp. 27-29, 42). O'Connor echoed Barr's testimony regarding the hiring process (NYSCEF Doc. No. 36 [O'Connor EBT at pp. 18-22, 35]). O'Connor also testified that overtime for DOC food services personnel has been reduced as part of a department-wide initiative and that overtime is not scheduled in advance but is assigned as needed by Food Service Managers, with the oversight of the Food Service Administrator when other workers do not show up or many workers call out sick (Id. at pp. 68-70).
In opposition, plaintiff asserts that she was qualified for all of the positions to which she applied, but particularly those in food service, because of her prior experience and background in food service management. She takes issue with Shephard's credentials, noting that he lacks a bachelor's degree, which she has, and has been disciplined during his time at DOC, while she has no such disciplinary record. She also notes that Nicole Rolston, another candidate who interviewed for the same Food Service Manager position, received higher marks than Shepherd or plaintiff did in the interview. As to the City's argument that all employees' overtime was reduced as a matter of DOC policy, plaintiff relies on her testimony that other cooks continued to be called in on their days off for overtime, naming specific cooks who received such treatment (NYSCEF Doc. No. 33 [Saunders EBT at p. 78]).
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]).
Employment Discrimination
Plaintiff asserts claims for discrimination on the basis of sex, race, disability, and veteran status under the NYSHRL and NYCHRL. "Under both the NYSHRL and the NYCHRL, the court applies the burden shifting analysis developed in McDonnell Douglas Corp, v. Green (411 U.S. 792 [1973]), where the plaintiff has the initial burden to establish a prima facie case of discrimination" Ciulla v Xerox Corp,, 70 Mise 3d 1205(A) [Sup Ct, NY County 2021] citing Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004). This analysis requires plaintiff to set forth that he is a member of a protected class, was qualified for the position, was actively or constructively discharged, and that the discharge occurred under circumstances giving rise to an inference of discrimination (Id. citing Ferrante v American Lung Assn., 90 N.Y.2d 623, 629 [1997]). As employed here, the term "prima facie" denotes plaintiffs de minimis burden to establish facts sufficient to create a "legally mandatory, rebuttable presumption," rather than the "more traditional meaning of describing plaintiffs burden of setting forth sufficient evidence to go before the trier of fact" (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 122-23 [1st Dept 2012] quoting Sogg v American Airlines, 193 A.D.2d 153, 162 [1st Dept 1993]).
Once this burden is met ''the burden shifts to the defendants to rebut the presumption by demonstrating nondiscriminatory reasons for its employment actions" (Ciulla v Xerox Corp,, 70 Mise 3d 1205(A) [Sup Ct, NY County 2021] citing Baldwin v Cablevision Sys. Corp,, 65 A.D.3d 961, 965 [1st Dept 2009]). If the employer meets this burden, the plaintiff must then, under the NYSHRL, "prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination" or, under the less onerous standard set under the NYCHRL, raise "an issue as to whether the action was motivated at least in part by ... discrimination" (Id. quoting Melman v. Montefiore Med. Ctr, 98 A.D.3d 107, 127 [1st Dept 2012]).
However, where, as here, "a defendant in a discrimination case has moved for summary judgment and has offered evidence in admissible form of one or more nondiscriminatory motivations for its actions" the Appellate Division, First Department, has instructed trial courts to, in most cases, "avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out in the first place" and turn, instead, to "the question of whether the defendant has sufficiently met its initial burden as the moving party of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action" (Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 39-40 [1st Dept 2011]).
Following this directive, the Court concludes that defendants have not met their burden here. As an initial matter, the Court agrees that the City has demonstrated a non-discriminatory reason for their failure to interview plaintiff, let alone hire her, for positions outside of DOC's food services department. To the extent the PREA Manager/Director of Special Projects position and Executive Director of Re-entry Services and Program Innovation position were never filled, no discrimination claim arises out of defendant's failure to hire plaintiff for same (See Okocha v City of New York, 122 A.D.3d 550, 550 [1st Dept 2014] Iv denied 25 N.Y.3d 910 [2015]). In addition, the City has established through the submission of the relevant job postings that plaintiff did not have the necessary qualifications for the PREA Manager/Director of Special Projects, Executive Director of Re-entry Services and Program Innovation, Health Services Manager or PREA Compliance Manager positions. Specifically the PREA Manager/Director of Special Projects position required eighteen months of supervisory experience and four-years in a large organization operating in the area of social services (including one-year at the administrative or managerial level); the PREA Compliance Manager position required two-years of full-time paid experience in providing direct services in a field to an inmate or detention population within a correctional facility; the Executive Director of Re-entry Services and Program Innovation required four-years in a large organization operating in the area of social services (including one-year at the administrative or managerial level); and the Health Services Manager position required five-years of fulltime paid experience in health services or public health, eighteen months of which in a managerial capacity. Plaintiff has none of these qualifications (See e.g., Krist v OppenheimerFunds, Inc., 18 Mise 3d 1111(A) [Sup Ct, NY County 2007] ["affidavits of the OFI hiring managers corroborated by resumes of the more qualified candidates and published detailed job descriptions of the Two City Positions for which Plaintiff was clearly not qualified went essentially unrefuted"]).
However, the City has failed to establish that plaintiff was not qualified for positions in the food services department to which she applied, i.e., the Food Service Manager and Executive Director of Food Service positions. It is undisputed that plaintiff interviewed for these positions and, crediting the undisputed testimony of Barr and O'Connor, the fact of these interviews suggests that DOC Personnel Department determined that plaintiff was qualified for these positions. This entirely undercuts the City's assertion that plaintiff was not selected for promotion to these positions because she was required to serve as a Senior Cook first, since she was selected to interview for a higher level job, Executive Director of Food Services, without having first served as a Senior Cook, Food Service Manager, and Food Service Administrator.
In addition, even crediting the City's evidence that Shepherd was more qualified than plaintiff for the Food Service Manager position, this does not provide a rationale for the City's decision not to hire plaintiff for the Food Service Manager position filled by Sharon Griffith or the Executive Director position. In short, beyond Shepherd, the City fails to provide details as to the qualifications of the candidates selected for promotion to establish that they were better qualified for the job (Cf. Cubelo v City of New York, 168 A.D.3d 637 [1st Dept 2019] ["The record supports their explanation that the candidates selected for promotion over plaintiff were better qualified for the job, having advanced degrees and directly relevant experience that plaintiff did not possess"]; Okocha v City of New York, 122 A.D.3d 550 [1st Dept 2014] ["Nor did defendants discriminate against plaintiff by failing to promote him from Attorney Level II to Attorney Level IV in January 2008; the two attorneys promoted to the latter positions had previously been Level III attorneys and therefore were more qualified than plaintiff for promotion to Level IV"]). As such, that branch of the City's motion for summary judgment dismissing plaintiffs employment discrimination claims is denied.
Retaliation
That branch of the City's motion for summary judgment dismissing plaintiffs retaliation claims under the NYSHRL and NYCHRL is also denied. To establish a claim for retaliation under the NYSHRL, plaintiff must show that: (i) she has engaged in protected activity; (ii) her employer was aware that she participated in such activity; (iii) she suffered an adverse employment action based upon her activity; and (iv) there is a causal connection between the protected activity and the adverse action (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 313 [2004]). In this context, "protected activity" refers to "actions taken to protest or oppose statutorily prohibited discrimination" (Thomas v Mintz, 60 Mise 3d 1218(A) [Sup Ct, NY County 2018] [internal citations omitted], aff'd as mod, 182 A.D.3d 490 [1st Dept 2020]). Under the NYCHRL, the test is similar, except that the plaintiff need establish an adverse action but must show only that the defendant took an action that disadvantaged her (Harrington v City of New York, 157 A.D.3d 582, 585 [1st Dept 2018]) and that this retaliatory act was "reasonably likely to deter a person from engaging in protected activity" (Franco v Hyatt Corp., 189 A.D.3d 569, 571 [1st Dept 2020] [internal quotations omitted]).
The City argues that the evidence in the record cannot establish a causal connection between plaintiffs protected activities-i.e., her EEOC complaints in June 2010 and November 2011, and discrimination lawsuit in 2013-and the defendants' failure to promote her to the positions to which she applied in August 2013, December 2015, March 2017, and June 2017. The Court disagrees.
"A causal connection may be established either indirectly, by showing that the adverse closely followed in time the protected activity, or directly, through evidence of retaliatory animus, such as [oral] or written remarks" (Thomas v Mintz, 60 Mise 3d 1218(A) [Sup Ct, NY County 2018] [internal citations omitted], affd as mod, 182 A.D.3d 490 [1st Dept 2020]). Here, plaintiffs testimony as to various comments during the relevant period from coworkers with supervisory authority, including Frankson's reference to plaintiff losing her job if she continued complaining, and plaintiffs testimony that coworkers, including supervising Senior Cooks, regularly made disparaging or negative comments to her-including accusations that she was the reason Buthom left DOC and Coleridge was transferred-supplies sufficient evidence of retaliatory animus during the relevant period (See Bateman v Montefiore Med. Ctr., 183 A.D.3d 489 [1st Dept 2020] [issues of fact as to causal connection between plaintiffs complaints and her termination present where HR officer to whom plaintiff complained "strongly suggested that plaintiff would be punished for speaking out"]; see also Melendez v New York City Tr. Auth., 204 A.D.3d 542 [1st Dept 2022] [summary judgment dismissing retaliation claim denied where evidence in the record suggested plaintiff was subjected to accusations and insults, by other employees, "including those in managerial or supervisory roles," who held her responsible for getting colleague "in trouble"]).
Neither has the City established that the decrease in plaintiffs overtime was not retaliatory (See NYSCEF Doc. No. 72 [O'Connor EBT at pp. 68-69]). Ban- and O'Connor's testimony that such reduction was the result of a department-wide initiative to lower overtime for all DOC employees that was implemented prior to plaintiffs complaint, taken together with plaintiffs testimony naming specific coworkers who still received more overtime than she did during this period, raises an issue of fact as to whether the mandated reductions in overtime were disproportionately applied in retaliatory manner.
Hostile Work Environment
While none of the causes of action in plaintiffs complaint is denominated as a hostile work environment claim, since both parties address whether summary judgment dismissing this claim is appropriate, the Court will address this issue here and grants defendants' motion for summary judgment dismissing plaintiffs hostile work environment claim, to the extent such a claim can be read into the complaint.
In order to establish a claim of a hostile work environment under the NYSHRL, a plaintiff must show that the "workplace was 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" (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 310 [2004] quoting Hams v. Forklift Sys., Inc., 510 U.S. 17 [ 1993]). Under the broader standard of the NYCHRL, a hostile work environment claim is established where a plaintiff proves that she was treated less well than other employees because of her protected status or under circumstances giving rise to an inference of discrimination (See O'Rourke v Natl. Foreign Trade Council, Inc., 176 A.D.3d 517 [1st Dept 2019]). Plaintiff has failed to submit evidence satisfying these elements. Her hostile work environment claim relies solely on comments by coworkers that she was an "entitled veteran" and would not be promoted as a result. However, plaintiff concedes that none of the individuals who made these remarks were involved in promotional decisions and these remarks by coworkers plaintiff testified to, are, on their own, insufficient to establish a hostile work environment claim-though offensive, they were not "sufficiently severe or pervasive to alter the conditions of [her] employment" or rise above "petty slights and trivial inconveniences" (Sedhom v SUNY Downstate Med. Ctr., 201 A.D.3d 536, 538 [1st Dept 2022]).
In light of the foregoing, it is
ORDERED that defendants' motion for summary judgment dismissing plaintiffs first and second cause of action, for employment discrimination, is denied; and it is further
ORDERED that defendants' motion for summary judgment dismissing plaintiffs third and fourth cause of action, for retaliation, is denied; and it is further
ORDERED that defendants' motion for summary judgment dismissing plaintiffs claims for hostile work environment is granted; and it is further
ORDERED that defendants are directed to serve a copy of this decision and order, with notice of entry, on plaintiff as well as on the Clerk of the Court (60 Center St., Room 14 IB) and the Trial Support Office (60 Center St., Rm. 119) within ten days from the date of this decision and order; and it is further
ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the decision and order of the Court.