Opinion
99 CV 3181.
March 30, 2001
MEMORANDUM ORDER
Plaintiff Helen Simmons alleges in this action that defendants New York City Health and Hospital Corporation ("HHC") and Coler-Goldwater Memorial Hospital ("the Hospital") discriminated and retaliated against her on the basis of race and age when she was employed as the Director of Volunteer Services at the Hospital's Coler campus. Upon oral argument, plaintiff withdrew the race based claim. Now before the court is defendants' motion for summary judgment on the age discrimination claim. For the reasons that follow, defendants' motion is granted.
Background
The facts relied upon in deciding this motion are undisputed unless otherwise noted. Plaintiff Helen Simmons is an African American female who was hired in 1968 by Coler Hospital as a senior clerk in the Nursing Education Department. Several job promotions and almost two decades later, in 1996, Coler Hospital merged with Goldwater Hospital to create the Coler-Goldwater Memorial Hospital. That merger is the canvas upon which plaintiff paints her portrait of age discrimination. Coler-Goldwater Memorial Hospital is controlled and managed by defendant the New York City Health and Hospital Corporation. (Comp. ¶ 2)
The wrongful conduct alleged in the Complaint occurred in 1996, prior to the merger. At the time, plaintiff was working as the Director of Volunteer Services at Coler Hospital, where she claims "work was great" and "everything was fine." (Simmons Dep., 59, 61) At Coler, plaintiff was assisted by a full-time paid staff assistant. With the merger in January 1996, however, several changes were instituted to the Volunteer Services unit, the most notable of which was defendant's installation of Tammy Carlisle as plaintiff's immediate supervisor and the Associate Director of the newly merged hospitals. The merger brought several institutional changes to Volunteer Services. Her former supervisor, Linda Takourian, as well as her full-time staff assistant were transferred to the Goldwater campus, and plaintiff was expected to administer the Volunteer Services program at the Coler campus on her own. As a result, her workload tripled but she was given no additional pay or administrative assistance. (Comp. at ¶ 15) Plaintiff made repeated requests for additional staff, but each request was met with rejection by Carlisle. Meanwhile, the Volunteer Services unit of the Goldwater campus was increased to three full paid staff members and one-part time member. (Comp. at ¶ 14)
Besides these institutional changes, plaintiff alleges that beginning in May 1996, Carlisle embarked on a discriminatory vendetta against plaintiff. (Simmons Dep. 61, 63) Plaintiff contends that her treatment by Carlisle was motivated by plaintiff's age and that it differed markedly from Carlisle's treatment of younger similarly situated employees in their 30's. She was subjected to this treatment, moreover, with the "knowledge and acquiescence" of senior Hospital management. (Comp. at ¶ 18) As a general matter, plaintiff contends that Carlisle subjected her work to "inordinately close scrutiny" and "inordinately criticized" that work but applied far less scrutiny to the work of younger, less experienced employees at the Goldwater campus. (Comp. at ¶ 18) In addition, plaintiff complains of six specific incidents she attributes to Carlisle. First, Carlisle told plaintiff that plaintiff made too much money and would no longer be eligible for pay increases, while other younger employees continued to remain eligible for pay increases. Second, Carlisle reassigned a volunteer who had been working with plaintiff at Coler to Goldwater without providing for any replacement volunteers or other staff. Third, Carlisle promoted Pamela Hargrow, a co-worker who was fifteen years younger than plaintiff and who had been with the Volunteer Services department for only six years to the position of Senior Director of Volunteer Services at the Hospital, where she had supervisory authority over plaintiff. Fourth, Carlisle disciplined and admonished plaintiff for mistakes related to her work, while overlooking similar mistakes on the part of younger, similarly situated employees at the Goldwater campus. Fifth, Carlisle told plaintiff that she would have to work longer hours at the same pay, while other employees were not required to do so. Finally, Carlisle gave plaintiff "unfair and negative" performance evaluations. (Comp. at ¶ 19) Plaintiff contends that she lodged repeated complaints about this discriminatory treatment, but that defendants condoned Carlisle's behavior. (Comp. at ¶ 16)
In November 1998, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") detailing her discrimination at the hands of Carlisle. Plaintiff describes in this EEOC charge the various staffing changes instituted by Carlisle as a result of the merger. Plaintiff also states in the charge that Carlisle "constantly disrespected, humiliated, harassed, intimidated and treated me with less than dignity. She has and continues to undermine and demean my leadership ability . . . She has hounded me to the point where it has [a]ffected my health." (Complaint, Ex. A, Nov. 1998 EEOC Charge) In addition, plaintiff contends in this EEOC charge that Carlisle stated to her on numerous occasions that the newly merged Hospital wanted only one Director of Volunteer Services and that, because this position was very competitive, everything counted, "including age." (Id.) After filing the November 1998 charge, plaintiff attempted to speak with other hospital staff about her problems, including Benjamin Hickman, the Hospital's Chief Operating Officer (Simmons Dep. 78, 79), his successor, Joan Deland. (Id. at 74), and the EEOC officer, Bill Jones (id. at 74-76), but to no avail.
Although the EEOC charge accused Carlisle of both race and age based discrimination, the Complaint and subsequent filings seem to rely on a theory of age-based discrimination alone.
Plaintiff filed another EEOC charge in February 1999. (Comp. ¶ 23; Comp. Ex. A, Feb. 1999 EEOC Charge) In it she contends that, in retalition for her decision to file the November 1998 EEOC charge, Carlisle arbitrarily ordered her to switch offices with Hargrow, who recently had been appointed Senior Director of Volunteer Services at the Hospital. (Id.) This switch would have required plaintiff to give up her windowed office at the Coler campus and move to a windowless office at the Goldwater campus. Plaintiff contends that no other department heads were forced to relocate their offices as a result of the merger. In the face of the contemplated office switch, plaintiff implored Carlisle not to insist upon the switch because she would have a difficult time breathing in a windowless office, but Carlisle "emphatically denied this request." (Id.)
As a result of her difficulties at work, plaintiff alleges that she developed a range of medical problems, including depression, hypertension and asthma, and eventually sought mental health treatment. (Simmons Dep., 95-103) On February 4, 1999, plaintiff went on a medical leave of absence and eventually retired on October 13, 1999. Her Complaint was filed on June 4, 1999 and states causes of action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.S. § 2000e et seq., the Age Discrimination in Employment Act ("the ADEA"), 29 U.S.C.S. § 621 et seq., the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., and the Title 8 of the Administrative Code of the City of New York, § 8-101, et seq. Defendants have moved for summary judgment on all of the claims asserted in the Complaint.
Discussion
I. Summary Judgment
Summary judgment is proper when there is no genuine issue of material fact and based on the undisputed facts, 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, 322-323 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Grady v. Affilated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether the movant has met this burden, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed.2d 176, 82 S.Ct. 993 (1962)). In employment discrimination actions, courts should be particularly cautious about granting summary judgment because explicit evidence of intentional discrimination is rarely uncovered. SeePonticelli v. Zurich Am. Ins. Group, 16 F. Supp.2d 414, 425 (S.D.N Y 1998); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
II. Timeliness
A complainant in New York state must file a discrimination charge under Title VII with the EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000e-5 (e); Wils v. New York Tel. Co., No. CV-91-3085, 1995 WL 87257, at *2 (E.D.N.Y. Feb. 16, 1995). Similarly, under the ADEA, a plaintiff must file an administrative charge with the EEOC within 300 days of the alleged violation in order to preserve her right to bring a lawsuit. See 29 U.S.C. § 626 (d), 633(b); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 906 (2d Cir. 1997). Under ordinary circumstances, the failure to bring a timely charge with the EEOC will bar a federal civil action based on prohibited forms of discrimination.Id. (citing Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, 474 U.S. 851 (1985)).
Plaintiff in this action filed her discrimination charge on November 10, 1998 and her retalition charge on February 4, 1999. Three hundred days prior to the first filing date is January 14, 1998. Therefore any acts of discrimination which defendants allegedly committed in violation of plaintiff's rights prior to January 14, 1998 are untimely and may no longer be pursued under Title VII or the ADEA. Those acts include the "discriminatory vendetta" which is alleged to have begun in May 1996, her negative performance evaluations in 1997 and 1998, and Carlisle's first attempt to transfer plaintiff to an office at the Goldwater campus on January 7, 1998. Plaintiff argues, however, that the "continuing violation" doctrine permits her to rely on time-barred acts of discrimination in this action.
Because Carlisle again tried to move plaintiff to the Goldwater campus on February 5, 1999, after the January 14, 1998 cut-off date, the attempted office transfer may be considered in any event.
"[C]ourts of this circuit consistently have looked unfavorably on continuing violation arguments." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989) (internal citations omitted). "Indeed, only `compelling circumstances' will warrant application of the exception to the statute of limitations." Id. (citing LaBeach v. Nestle Co., 658 F. Supp. 676, 687 (S.D.N.Y. 1987)); see also Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995) (the continuing violation doctrine is disfavored in this Circuit, and will be applied only upon a showing of compelling circumstances."). "[A] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to discriminatory practice or policy." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994); see also Nicholas v. NYNEX, 974 F. Supp. 261, 264 (S.D.N.Y. 1997) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (continuing violation may be established through showing that "defendant has adopted a discriminatory policy or practice, such as the use of discriminatory lists or employments tests, prior to and during the limitations period.")); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1416 (S.D.N.Y. 1989) ("To establish a continuing violation, `a plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period."'" (citing LaBeach, 658 F. Supp. at 686 (quoting Valentino v. United States Postal Serv., 674 F.2d 56, 65 (D.C. Cir. 1982)). However, a "continuing violation. may not be based on the continuing effects of an earlier discrimination,United Air Lines v. Evans, 431 U.S. 553, 558 (1977), or on a completed act of discrimination. Delaware State College v. Ricks, 449 U.S. 250, 257 (1980). The determination as to whether or not a continuing violation exists must be made on a case-by-case basis. Id. at 258 n. 9." Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1416 (S.D.N.Y. 1989) (footnotes and internal citations omitted).
Plaintiff here argues that the continuing violation exception applies to events that are alleged to have occurred before January 14, 1998 because by that point she had informed defendants' officers, including Ben Hickman, Joan Deland and Bill Jones (defendants' EEOC officer), of Carlisle's discriminatory supervision and, although those officers had authority to broker a resolution, they did nothing. Plaintiff's own testimony, however, belies this assertion. First, plaintiff acknowledges that Hickman "was very helpful" and "tried to keep [Carlisle] . . . off of me" and that things were "a little fairer" when Hickman was there. (Pl.'s Dep. 79) Even after Hickman's resignation, plaintiff admits that Deland also tried to resolve her problems with Carlisle by meeting with them. (Id. at 74) Plaintiff acknowledges that Deland "made efforts" to resolve the situation and even attempted at one point, though she apparently lacked the power to do so, to remove Carlisle from the Volunteer Department. (Id. at 77) Moreover, plaintiff admits that the reason she did not do more to resolve her problems in house was because she "knew that other people had tried to resolve issues internally, and it never worked out." (Id. at 76) She also states that she was satisfied with what Jones told her because she "knew that not much was going to be done there." (Id.) Because this testimony points to the inevitable conclusion that defendants did not ignore plaintiff's requests for intervention, but instead attempted to resolve the situation, plaintiff has failed to demonstrate what is required in this Circuit to establish a continuing violation, namely: "specific and related incidents of discrimination [that] are permitted to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell, 23 F.3d at 704. Therefore, the 300 day statute of limitations applies, and incidents alleged to have occurred prior to January 14, 1998 will not be considered for purposes of deciding this motion.
III. Defendants' Summary Judgment Motion
Defendants seek summary judgment on account of plaintiff's failure to establish a prima facie case of either discrimination or retaliation under Title VII, the ADEA, or the state and city Human Rights Laws. Plaintiff opposes summary judgment based on her contention that a genuine issue of material fact exists as to whether plaintiff's age was a motivating factor in defendants' disparate treatment of plaintiff. However, plaintiff has not represented in either her memorandum in opposition or her Rule 56.1 statement that such an issue exists as to whether race was a motivating factor in defendants' treatment of her. In addition, plaintiff conceded at oral argument that her race-based claims should be dismissed. Accordingly, the court will consider only her ADEA and New York State and City Human Rights Law claims insofar as they concern age discrimination.
A court's analysis of age discrimination and retaliation under the ADEA and the State and City Human Rights Law follows the principles that govern Title VII claims and are set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Manzi v. DeCarlo, 62 F. Supp.2d 780, 788 (E.D.N.Y. 1999) (citing Fisher v. Vassar College, 114 F.3d 1332, 1335-37 (2d Cir. 1997) (en banc), as Amended June 16, 1997)) (applying Title VII's burden shifting analysis to claims brought under ADEA));Woroski v. Nashua, 31 F.3d 105 (2d Cir. 1994) ("We analyze ADEA claims under the same framework as claims brought pursuant to Title VII.") Plaintiff has the burden of proving the prima facie case of discrimination or retaliation by a preponderance of the evidence.Burdine, 450 U.S. at 252-53. If she does, the burden shifts to the employer to articulate a legitimate, nondiscriminatory, nonretaliatory reason for the adverse employment decision. Id. at 253. Should the defendant carry this burden, it will be entitled to summary judgment unless the plaintiff puts forth adequate evidence to support a rational finding that the reason proffered by the defendant is a pretext for discrimination or retaliation. Id. To meet this burden, plaintiff "need not prove that age was the only or even the principal factor in the adverse employment action, but only that age was at least one of the motivating factors in the decision." Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 135 (2d Cir. 2000) (internal citation omitted). Evidence of discrimination need not be direct, as such proof is seldom available, but may be circumstantial. Id.
A. Discrimination
Under the ADEA, an employer may not discharge an employee by reason of her age if that employee is at least 40 — but less than 70 — years of age. See Woroski, 31 F.3d at 108; 29 U.S.C. § 623 (a)(1), 631(a). To establish a prima facie case of age discrimination, a plaintiff must establish that: (i) she belongs to the class of persons protected by the statute; (ii) she was qualified; (iii) she was subjected to an adverse employment action; and (iv) the employment decision occurred under circumstances giving rise to an inference of discrimination. Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993). See also Maresco v. Evans Chemetics, 964 F.2d 106, 110 (2d Cir. 1992) (citations omitted). A plaintiff need not show that she was replaced by a younger, newly-hired employee. See Montana v. First Fed. Say. Loan Ass'n, 869 F.2d 100, 104-05 (2d Cir. 1989).
Defendants concede that Simmons has satisfied the first two requirements of a prima facie case of age discrimination in that she was over 40 when the allegedly discriminatory conduct occurred, and therefore a member of a protected group, and that she was qualified for her position. They argue, however, that, plaintiff has failed to satisfied the third and fourth elements of the prima facie case with respect to her claim that she received negative evaluations and that plaintiff has not satisfied the fourth elements with respect to her claim that she was denied a promotion.
1. Negative evaluations
Defendants argue that plaintiff has failed to satisfy the third and fourth elements of a prima facie case of discrimination with respect to her claim that she received negative performance evaluations. An employment action is adverse if it causes the plaintiff to endure a "materially adverse change" in the terms and conditions of employment.See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000); Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999) (relying on Crady v. Liberty Nat'1 Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). The employment action which is alleged to be materially adverse "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (quoting Crady, 993 F.2d at 136). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significant diminished material responsibilities, or other indices . ., unique to a particular situation." Id. See also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (ADEA protects the employee against "less flagrant reprisals" than termination or a reduction in wages and benefits).
"Negative evaluations alone, without any accompanying adverse consequence are not adverse employment actions." Pellei v. Int'l Planned Parenthood Federation. Inc., 1999 U.S. Dist. LEXIS 15338 at *33 (S.D.N.Y. Sept. 30, 1999) (citing Valentine v. Standard Poor's, 50 F. Supp.2d 262, 284 (S.D.N.Y. 1999) (granting summary judgment on ADA claim where plaintiff "fails to show that his poor performance reviews caused a materially adverse change in the conditions of his employment" and "does not point to any negative consequences flowing from his poor reviews, such as demotion, suspension, loss of wages or any action which marked him as a less capable analyst."); Gallo v. Herman, No. 97-8359, 1999 U.S. Dist. LEXIS 6082 at *5 (S.D.N.Y. Apr. 28, 1999) (plaintiff has not adduced any evidence that receipt of "still-high but not-quite-as-high-as-previous rating caused any material impact on term or condition of [her] employment"); Castro v. New York City Bd. of Educ. Personnel, No. 96 Civ. 6314, 1998 U.S. Dist. LEXIS 2863 at *21 (S.D.N.Y. March 12, 1998) (negative evaluations "unattended by a demotion, diminution of wages, or other tangible loss do not materially alter employment conditions")). See also Johnson v. City of Fort Wayne, 91 F.3d 922 (7th Cir. 1996) (negative employment evaluations did not constitute adverse employment action); Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996) (negative performance ratings alone did not constitute adverse employment actions); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (a performance review that is lower than past reviews but within the range of satisfactory does not constitute an adverse employment action).
Here, Simmons fails to demonstrate that the performance evaluations caused a materially adverse change in the conditions of her employment such as demotion, suspension, or loss of wages. "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action." Valentine, 50 F. Supp.2d at 284 (citing Smart, 89 F.3d at 441; Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse'")). Simmons received an overall rating of "superior" in October 1996 and an overall rating of "satisfactory" in September 1997 and October 1998. (Carlisle Dep., 22-34, Exs. C, D, E) Setting aside the fact that the 1997 and 1998 evaluations fall outside the 300 day statute of limitations, plaintiff's subjective perception that she received poorer performance reviews than she deserved does not constitute an adverse employment action for purposes of stating a prima facie case. Id. (citingSee Garber v. New York City Police Dept., 1997 U.S. Dist. LEXIS 12590, No. 95 Civ. 2516 (JFK), 1997 WL 525396, at *6 (S.D.N.Y. Aug. 22, 1997) (plaintiff's purely subjective feelings did not negatively alter terms and conditions of employment), aff'd, 159 F.3d 1346 (2d Cir. 1998)). Given that plaintiff's "satisfactory" reviews did not lead to any immediate tangible harm or consequences, they did not constitute an adverse action materially altering the conditions of her employment. Id. (citing Smart, 89 F.3d at 442; Castro, 1998 WL 108004, at *7), Thus, plaintiff has failed establish the third element of a prima facie case that defendants discriminated against her on the basis of her age by giving her a "still-high but not-quite-as-high-as-previous rating." Gallo, 1999 U.S. Dist. LEXIS 6082 at *5.
Having concluded that plaintiff has failed to establish an adverse employment action, the court need not consider whether or not such an action occurred under circumstances giving rise to an inference of discrimination. Even if such a consideration were appropriate, however, it would require the court to find that plaintiff fails to make a sufficient showing that defendants' proffered reasons for the reviews are merely a pretext for discrimination. Accordingly, summary judgment is appropriate on plaintiff's claim that she was given a performance evaluation because of her age.
2. Failure to promote
Defendants next argue that plaintiff has failed to establish a prima facie case of discriminatory failure to promote because she has not established that Carlisle's decision to promote Hargrow, a younger black woman, to the position of Senior Director of Volunteer Services was motivated by race or age. In so arguing, defendants misapply the requirements for a prima facie claim based on an alleged discriminatory failure to promote. Those requirements were articulated by the Second Circuit in Brown v. Coach Stores. Inc., 163 F.3d 706, 709 (2d Cir. 1998) and provide that in order to establish a prima facie claim based on an alleged discriminatory failure to promote, the plaintiff must allege that 1) she is a member of a protected class; 2) she applied and was qualified for a position for which the employer was seeking applicants; 3) she was rejected for the position; and 4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications. Id. (citing McDonnell Douglas, 411 U.S. 792 (1973));Pellei v. Int'l Planned Parenthood Federation, Inc., 1999 U.S. Dist. LEXIS 15338, *24 (S.D.N.Y. Sept. 30, 1999).
Again, as indicated earlier, it is assumed that plaintiff has abandoned her race claims.
Nonetheless, defendants are correct that plaintiff fails to establish the prima facie elements of a cause of action for failure to promote. First, plaintiff does not allege that she ever applied for the newly created position of Senior Director of Volunteer Services. Even assuming that plaintiff had applied to the position but was skipped over, she would also have to establish the fourth element of a prima facie case by showing that "a similarly situated individual not in [plaintiff's] protected group . . . was treated differently." Belgrave v. City of New York, 1999 U.S. Dist. LEXIS 13622, *83, No. 95-CV-1507 (E.D.N.Y. Aug. 31, 1999) (citing Tramble v. Columbia Univ., 1999 U.S. Dist. LEXIS 1274, *15-16, No. 97 Civ. 1271 (S.D.N.Y. Feb. 10, 1999); Hargett v. National Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir.), cert. denied, 519 U.S. 824, 136 L. Ed.2d 41, 117 S.Ct. 84 (1996) ("A plaintiff in a discrimination action may establish that the reason articulated by a defendant for termination of plaintiff's employment is a pretext and that race, in fact, did play a part in the decision to terminate by proving that `similarly situated' . . . employees [of a different race] were treated more favorably than he."). "[A]lthough the ultimate burden in making a prima facie case is slight, the issue of whether fellow employees are similarly situated is somewhat strict." Id. (citing Brown v. Middaugh, 41 F. Supp.2d 172, 184 (N.D.N.Y. 1999)). As the Second Circuit has stated, "to be `similarly situated,' the individuals with whom [a plaintiff] attempts to compare herself must be similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997).
Here, however, the record is rife with evidence suggesting that plaintiff and Hargrow were not similarly situated and that defendants' decision to promote Hargrow and not plaintiff was based on legitimate reasons. Specifically, Carlisle testified in her deposition as to her belief that Hargrow was the superior candidate in virtually all respects, including her work performance, productivity, accuracy and management skills, and that plaintiff, in contrast, was "excessively absent," "very negative," and "resistant" to the hospital merger. (Id. at 34-35, 60-62) Accordingly, plaintiff fails to establish a failure to promote on the basis of age.
B. Retaliation
To establish a prima facie case of retaliation, a plaintiff in this Circuit must establish that: (i) she engaged in a protected activity; (2) the employer was aware of plaintiff's participation in the protected activity; (3) the employer took an adverse employment action against plaintiff, and (iv) a causal connection existed between the plaintiff's protected activity and the adverse employment action. Cosgrove v. Sears Roebuck, 9 F.3d 1033, 1039 (2d Cir. 1993).
Defendants here acknowledge that plaintiff was engaged in a protected activity when she filed an EEOC charge and also that they were aware of her participation in this activity. They argue, however, that plaintiff has not established the third and fourth elements of the prima facie case of retaliation because she was not subjected to an adverse employment action and because there was no causal connection between her filing an EEOC charge and any such adverse employment action. Defendants are correct with respect to both elements.
With respect to the third element, although the Second Circuit has not yet resolved whether the loss of an office may constitute an adverse employment action see Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997), some courts have assumed that a workspace reassignment may be a sufficiently material adverse employment action to satisfy the third element of a cause of action for retaliation. See e.g., Pellei, 1999 U.S. Dist. LEXIS 15338 at *35 (holding that plaintiff's reassignment to "small, poorly lit, isolated cubicle" was sufficient); Marks v. New York Univ., 61 F. Supp.2d 81, 95 n. 15 (S.D.N.Y. 1999). However, such a claim must be supported by more than conclusory allegations. Marks, 61 F. Supp.2d at 97 n. 18 (noting that plaintiff "has provided only conclusory allegations that her office relocation was unusual" and that such allegations "do not support a prima facie case of discrimination.") (internal citations omitted). Here, plaintiff has failed to demonstrate that the relocation of her office following a massive hospital merger was anything out of the ordinary. In fact, plaintiff has herself acknowledged that she was not the only department director at the Coler campus to be transferred to an inferior office space. Plaintiff's previous supervisor, Linda Takourian, was, according to plaintiff, taken from a "big beautiful office" and placed in a basement office, where she "cried every day." (Pl. Dep. 36-37, 62) Moreover, plaintiff avers, "that is what they were doing with people from Coler. They were transferring our department heads [and] administrators and putting them in the basement of Goldwater." (Id. at 62) Indeed, employees in several other departments, including building services, laundry, administration and patient relations, were required to move as a result of the merger. (Carlisle Dep. 46-47)
As for the fourth element, however, defendants are also correct that plaintiff fails to allege a causal connection between her filing of the EEOC charge and her office relocation. While a plaintiff may establish a causal connection indirectly by showing that the protected activity was followed closely in time by the adverse action see Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986), the existence of such a connection here is belied by the record. As is apparent from several memoranda written by Carlisle and addressed to plaintiff and Hargrow, the purpose of the office switch was "to facilitate expanding each Director[']s leadership function across the campuses" and to "bring greater consistency and continuity to department operations" across the newly merged Hospital. (Defs.' Ex. F, Mem. dated Jan. 7, 1998, Mem. dated Feb. 5, 1999) In addition, because Hargrow was scheduled to go on maternity leave, plaintiff was to take on both campuses and the transfer would permit her to gain the necessary familiarity with the Goldwater campus. (Carlisle Dep. 46, 66-67) Finally, the absence of a causal connection between plaintiff's EEOC charge and her office relocation is demonstrated by the transfer of various other personnel to offices in the Goldwater campus.
The necessary conclusion that must be drawn from this testimony is that plaintiff's office transfer was part of a broad overhaul to upper level management at the newly merged Hospital, not an act of retaliation against her for filing an EEOC charge. Courts have not hesitated to grant summary judgment where an employer offers a legitimate business reason for an action and plaintiff fails to offer a single material fact to expose those reasons as mere pretexts for discrimination. See Rodriguez v. New York City Hous. Auth., 2000 U.S. Dist. LEXIS 14182, *23, No. 96 Civ. 3229 (S.D.N.Y. Sept. 29, 2000) ("Defendants have profferred [sic.] legitimate business reasons for each of the actions complained of by Plaintiff, including the re-assignment of Plaintiff's NYCHA vehicle, the relocation of his office, the alteration of his schedule and the negative promotional memorandum. Other than recounting the events themselves, Plaintiff doesn't even attempt to illustrate that Defendants' explanations were pretexts for discriminatory conduct.") Accordingly, plaintiff fails to establish a genuine issue of fact that would permit her retaliation claim to survive this motion.
C. State law claims
Because the analytical framework governing plaintiff's claims under New York State and City Human Rights Laws is identical to that governing her ADEA claims, those claims too should be dismissed. See Cruz v. Coach Stores. Inc., 202 F.3d 560, 564 n. 1 (2d Cir. 1999) ("Our consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims."); Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d Cir.), cert. denied, 522 U.S. 997 (1997) (noting that "claims brought under New York State's Human Rights Law are analytically identical to claims brought under Title VII"); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996) ("New York courts rely on federal law when determining claims under the New York Human Rights Law."); Jalal v. Columbia Univ., 4 F. Supp.2d 224, 232 n. 10 (S.D.N.Y. 1998) ("For the purposes of resolving this motion, [plaintiff's] claims under the New York State and New York City Human Rights Laws are indistinguishable from her Title VII claim.") (internal citations omitted).
Conclusion
For the foregoing reasons, defendants' motion for summary judgment is granted, and plaintiff's claim is dismissed in its entirety.
SO ORDERED.