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holding that because plaintiff's comparators were "actually all her supervisors," comparing them was inapt
Summary of this case from Pollard v. N.Y.C. Health & Hosps. Corp.Opinion
02 Civ. 7781 (HB)
December 15, 2003
OPINION AND ORDER
Flora Newkirk-Wood ("Wood" or "plaintiff") brought suit against the Sophie Davis School and City University of New York ("CUNY") Medical School of Biomedical Education (collectively "defendant" or "Sophie Davis School") on the basis of disparate treatment, retaliation, and hostile work environment, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as codified at 42 U.S.C. § 2000e et seq. Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 56(c). For the following reasons, defendant's motion is granted.
I. BACKGROUND
A. Factual Background
Plaintiff, an African-American female, has been working at the Sophie Davis School since October 4, 1993. The mission of the Sophie Davis School is "to educate young men and women of diverse ethnic backgrounds to serve as primary care physicians in under served communities." Roman Decl. ¶ 5. Since the day of her hire, plaintiff has served in the title of Higher Education Assistant ("HEA"), and in the functional title of Personnel/Payroll officer, which position is within the Higher Education Officer ("HEO") series, a group of jobs in which employees perform administrative functions for CUNY. The HEO series includes positions that carry with them higher levels of responsibility than plaintiffs title, for instance Higher Education Associate and Higher Education Officer, and lower levels, like Assistant to Higher Education Officer. The requirements for and qualifications of these positions are set forth in the Bylaws of the Board of Trustees of CUNY ("CUNY Bylaws"). The salaries in the HEO series are governed by a collective bargaining agreement between CUNY and the Professional Staff Congress/CUNY ("CBA"). As the HEO series of titles is non-promotional, in order to change positions within this series, an employee must be reclassified under a different title.
"The duties of a Higher Education Assistant are to serve as an assistant to one of the major educational officers of a college or the university with responsibility for a limited area of planning or research." CUNY Bylaws § 11.15.
The duties of a higher education associate are "to serve as a deputy for a higher education officer," to assume responsibility for "a major area of university or college activity," to serve as executive assistant to the chancellor or president, and "to develop some major aspect of new programs." CUNY Bylaws § 11.16. The duties of a higher education officer are to assume responsibility for "a major area of university or college activity," to serve as executive assistant to the chancellor or president, and "to develop some major aspect of new programs." Id. at § 11.17.
The duties of an assistant to a higher education officer are "to perform such administrative duties as may be assigned" "under the supervision of a higher education officer or university dean or college dean." CUNY Bylaws § 11.14.
On March 15, 1999, plaintiff sought reclassification to the position of Higher Education Officer ("HEO"), which is two titles above her current position. Dean Gliwa, then Associate Dean for Administration, Finance, Planning, and Special Projects, denied the request. The Dean of the Sophie Davis School, Dr. Stanford A. Roman, an African-American male, affirmed Gliwa's denial. The stated reason for the denial was that plaintiffs duties had not expanded sufficiently to warrant reclassification.
On April 16, 1999, plaintiff filed a complaint with the New York State Division of Human Rights ("SEHR"), for alleged discriminatory practices at CUNY. On May 28, 2002, the SDHR dismissed the complaint for lack of probable cause. Nearly one month later, on June 27, 2002, defendant rescinded plaintiffs eligibility for a Certificate of Continuous Administrative Service ("CCA"). This is alleged to have come about because management employees in plaintiffs title were excluded from eligibility for a CCA. Plaintiff asserts that this disqualification had never before been alluded to by the defendant. Soon thereafter, on July 3, 2002, the Equal Employment Opportunity Commission ("EEOC") issued a "right to sue" letter.
Because of the dual filing arrangement with the EEOC, this complaint was also assigned a Federal Charge Number. Am. Compl. ¶ 5.
Under the CBA, employees who serve in the same title in the HEO series "are subject to a series of annual anti bi-annual-reappointments at CUNY's discretion until the sixth reappointment, after eight years of service. Thereafter, upon recommendation of the President and approval of the Board of Trustees of CUNY, an employee who is granted a subsequent reappointment is entitled to a CCA pursuant to Section 13.3b. Upon the award of a CCA, the employee is not subject to annual or multiple year appointments and can be terminated under the limited conditions prescribed in Section 13.12a, which includes three consecutive unsatisfactory evaluations in three successive fiscal years." Gliwa Decl. ¶ 49 (internal citations omitted). Article I of the CBA excludes certain employees, such as "Personnel Directors" and "Office of the Personnel Director," from eligibility. The need for such exclusion stems from the fact that these employees have access to sensitive personnel information that could prove deleterious to CUNY in a dispute or grievance filed under the CBA.
While the plaintiff had filed with the state, if she had filed originally with the EEOC, the matter would have been deferred to the state agency, here the SDHR. Once the matter is dismissed at the state level (as here), the EEOC will in most cases rely on that finding and issue the right to sue letter. As best I can determine, that is what happened here.
Around the same time, in or around June 2002, the plaintiff fired and refused to rehire her administrative assistant, Angelina Field. The plaintiff claimed that she was unsatisfied with her assistant's performance. Dean Kaler, who replaced Gliwa as acting Associate Dean, did not authorize plaintiff to hire a new assistant that term; she was authorized to rehire Field. Without the help of an assistant, plaintiff contends that she completed all administrative tasks without assistance. Defendant offers non-discriminatory reasons for the denial of the request for a new assistant.
The record is replete with documentation of plaintiffs interpersonal relationship problems. The evidence, among other things, includes (1) unsatisfactory performance evaluations of plaintiff's interpersonal skills, (2) memoranda exchanges between plaintiff and various employees, both African-American and Caucasian, in which plaintiff informs these employees of her dissatisfaction with their conduct and the employees invariably reply with shock and abhorrence at plaintiff's tone and accusations, and (3) a report of a potentially libelous claim made by plaintiff about one of her co-workers. Defendant demonstrates that any reduction in plaintiff's workload stemmed from her co-workers' decisions to administer tasks themselves that plaintiff once conducted, in order to minimize their contact with plaintiff
B. Procedural History
Plaintiff filed her complaint in this action on September 27 2002. On February 10, 2003, defendant moved to dismiss plaintiffs amended complaint, and this motion was fully-briefed on March 18, 2003. On June 30, 2003, this Court dismissed plaintiffs claims for damages arising prior to June 20, 1998 for defendants' alleged discriminatory pay and failure to promote or reclassify and also dismissed plaintiffs claims for punitive damages. Oh September 30, 2003, defendant moved for summary judgment on the remainder of plaintiffs claims, and submitted the motion fully-briefed on October 29, 2003. On November 19, 2003, this Court endorsed the parties' stipulation to proceed before a Magistrate Judge for all purposes, including trial, after this Court decided the summary judgment motion. Oral argument was heard on December 3, 2003.
II. DISCUSSION
A. Standard of Review
Pursuant to Fed.R.Civ.P. 56(c), a district court must grant summary judgment if the evidence demonstrates 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." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), quoting Fed.R.Civ.P. 1. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw all inferences against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The disputed issues of fact must be "material to the outcome of the litigation" ( id. at 11), and must be backed by evidence that would allow "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id.
The plaintiff in a Title VII action who asserts disparate treatment based on race must, as an initial burden, establish a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Greene, 411 U.S. 792, 802 (1973). The elements of the prima facie case are (1) membership in a protected class, (2) qualification for the position, (3) an adverse employment action, and (4) circumstances that suggest an inference of discrimination. Id. If the plaintiff establishes a prima facie case, the burden of going forward then shifts to the defendant to "articulate some legitimate, non-discriminatory reason" for its action. Id. at 802. However, this burden of going forward must not be confused with the more onerous burden of persuasion. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times" with the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 101 S.Ct. 1089, 1093 (1981). The plaintiff must "produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). While under this standard "direct evidence of discrimination is not necessary . . . "a jury cannot infer discrimination from thin air." Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (citations omitted).
B. Disparate Treatment Claims
Plaintiff asserts disparate treatment based on (1) her receipt of a lower salary than all other Sophie Davis School employees in comparable positions (Am. Compl. ¶¶ 12, 20), (2) the denial of job reclassification (id. ¶ 15), (3) the denial of clerical assistance (id. ¶ 14), and (4) the allowance by employees "of similar rank" to use plaintiff for "clerical purposes" (id. ¶ 6). Because plaintiff has either failed to make out a prima facie case or has failed to refute the non-discriminatory evidence produced by defendant, summary judgment for defendant is warranted on all of plaintiffs disparate treatment claims.
1. Salary Discrimination
Plaintiff asserts that her salary has been discriminatorily low, when compared to other employees in like positions, from June 20, 1998 to the present. However, the payment schedule for plaintiffs position was at all times during this period governed and fixed by the racially neutral CBA. Gliwa Decl. ¶ 10, Synder Decl. ¶ 10. Plaintiff does not contest that her salary followed the appropriate schedule. Therefore, plaintiffs position as a HEA within the HEO series demanded a preset salary range, and increased by non-discretionary pre-determined intervals, dependant on plaintiffs initial salary. Gliwa Decl. ¶ 12. CUNY's racially neutral fixed salary schedule serves as a legitimate non-discriminatory ground to support defendant's assertion that plaintiffs salary was, at no point during the period in question, discriminatorily low. See Kiteta v. Bronx Lebanon Hospital et al, 88 Civ. 8307, 1990 U.S. Dist. LEXIS 8376, at *7-8 (S.D.N.Y. July 6, 1990), aff'd 927 F.2d 593 (2d. Cir. 1991).
In her original complaint, plaintiff alleged salary discrimination from the onset of her employment at CUNY, in October 1993, when she started at the salary of $40,213; however, this Court dismissed as untimely all such claims prior to June 20, 1998.
Plaintiffs salary was set by the CBA regardless of whether plaintiff was eligible for other benefits of the CBA. Gliwa Decl. ¶ 10, Snyder Decl. ¶ 10.
While plaintiffs initial salary may have been discriminatorily low, because this Court dismissed plaintiff's salary claims prior to June 20, 1998 as untimely, the only issue before the Court now concerns whether plaintiffs salary during the period June 20, 1998 to the present was discriminatorily low.
Further, by plaintiffs own admission, there were no other employees at CUNY who shared her position as a personnel and payroll officer (Wood Dep. 52:15-53:6), and therefore, comparisons between salaries received by other employees, who by necessity were employed in different capacities, is less availing. See Shumay v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d. Cir. 1997) (discrimination by comparison to other employees requires that employees be "similarly situated" in "all material respects.") (citations omitted). And, any assertion by plaintiff of a broad-based discriminatory payment system is weakened by the reality, acknowledged by plaintiff, that three other African-American employees in the same series as plaintiff, though admittedly in positions one step higher than plaintiff, received higher salaries than plaintiff for duties that plaintiff considered to be less demanding. Wood Dep. 53:1-59:16; Gliwa Decl. ¶ 14. Summary judgment is therefore appropriate on plaintiffs disparate salary claim.
As a result, this Court need not determine whether plaintiff made out a prima facie case, as even if she did, her failure to rebut defendant's non-discriminatory evidence, is fatal to her success under this claim.
2. Denial of Reclassification Commensurate With Duties
Pursuant to Title VII, plaintiff claims that CUNY's refusal to promote plaintiff from the position of HEA to HEO in 1999, a movement of two levels/ stemmed from racially discriminatory animus. However, as defendant asserts, (1) because plaintiff was not qualified for the position of HEO, and (2) because plaintiff fails to present evidence of discriminatory intent, plaintiff has failed to make out a prima facie case.
First of all, in order to establish a prima facie case of disparate treatment, plaintiff was required to prove the necessary element of qualification for the reclassification. McDonnell Douglas, 411 U.S. at 802. Pursuant to CUNY's Guidelines, in order to be eligible for "classification, "at least one third of the current job duties of the employee [must] have been added or significantly expanded since the current position was assumed[,]" which results in the reality that "at least one half of the current job duties are appropriate to a higher level of responsibility." CUNY Guidelines Section B. Two of the three responsibilities of a HEO include the assumption of "full administrative responsibility for some major area of university or college activity . . ." and the development of "some major aspect of new program." In contrast, the duties of a HEA, plaintiffs current position, are "to serve as an assistant to one of the major educational officers of a college or the university with responsibility for a limited area of planning or research." CUNY Bylaws Section 11.15A; Gliwa Decl. ¶ 20 (emphasis added). Further, although plaintiff asserts that she "performed duties similar to duties performed by employees with the HEO title" (PL Mem. at 6), the duties that plaintiff then recites fail to comport with those of a HEO.
Plaintiff categorizes her current duties as "writing job descriptions, conducting training, writing guidelines, i.e. 'adjunct payment schedules', writing descriptions for reclassification, conducting job analysis, working together with union representatives, counseling for personnel actions, and constant interaction with faculty and staff." Plaintiff. Mem. at 7; Wood Aff. at 11. Neither these duties nor the fact that plaintiff is highly educated, and even has a Masters Degree in Human Resources (Wood Aff. at 12) rectifies the shortcoming that "at least one half of [plaintiff's] current job duties [are\not] appropriate to a higher level of responsibility." CUNY Guidelines Section B.
Further, the fact that Gliwa, the individual who denied plaintiff's request for reclassification, several years earlier, had been the one to recommend that the plaintiff be hired, casts doubt upon the viability of any inference that Gliwa had discriminatory motives. The same-actor inference provides that "when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). Further, the fact that among the nine employees at the Sophie Davis School who received reclassifications since January 1998, seven were racial minorities, and of those seven, six were African American, itself belies an inference of discrimination in plaintiffs failure. Aarbo Decl. ¶ 21; Diaz v. N.Y. City Transit Auth., 99 Civ. 9928, 2003 U.S. Dist. LEXIS 18084, at *17 (S.D.N.Y. Oct. 9, 2003) ("[although the first two applicants hired for the AET positions were Caucasian, any inference that this raises is undercut by the fact that defendant subsequently considered and hired five other applicants of various races and ages."). Therefore, even if plaintiff were qualified for the promotion, summary judgment in defendant's favor is appropriate on this claim.
Despite this inference, plaintiff argues that Gliwa's remark that "Gittlesons," clerical support staff, who are with the exception of one, African-American, would not be promoted, is evidence of her discriminatory motive. However, defendant explains and plaintiff concedes that the Dean's use of the word "Gittlesons" had more to do with the position of the group's work than with their racial identity. Further, plaintiffs allegation without more, that after she informed Gliwa that she did not receive the promotion because there was "probably a better candidate," the Dean's response of "yeah, right," suggested that he "probably 'discouraged them in some way, to allow me to take the job", does not reflect any racial undertones.
While Grady involved an individual who hired and fired the plaintiff rather than an actor who hired and failed to promote an individual, the theory behind the same-actor inference is the same. Further, courts outside of this Circuit have extended the same-actor inference to the hire/failure to promote scenario. See, e.g. Nunnery v. Elgin, Joliet Eastern Ry Co. et al., 48 F. Supp.2d 1122, 1133 (N.D. Ind. 1999) ("As various courts have recognized, a supervisor who is willing to hire an employee of a certain class is unlikely to deny that employee a promotion because he or she is a member of that class."). And, although in Grady, this inference was stronger because the alleged discrimination occurred in closer temporal proximity to the hiring, the inference in this case, while arguably weaker, is still relevant.
Plaintiffs attempt to rebut this convincing statistic by offering that she was responsible for granting two of the reclassifications, and the others only succeeded after plaintiff filed a complaint with the SDHR, does not meet the standard of evidence sufficient to convince a trier of fact First of all, as a result of plaintiff's role, it is unlikely that she would have had full authority over reclassifications. Further, plaintiff cites no authority to suggest that the other employees would not have received reclassification prior to plaintiffs filing of her complaint.
3. Denial of Clerical Assistance After June 30, 2002
Plaintiff conceded that "she is unable to overcome summary judgment on her claims of denial of clerical assistance from 1995 to June 30, 2002." Pl. Mem. at 8.
Even if plaintiff made out a prima facie case of disparate treatment with regard to the denial of clerical assistance after June 30, 2002, because plaintiff fails to offer sufficient evidence to rebut the non-discriminatory rationale presented by defendant, summary judgment for defendant is appropriate. Notably, plaintiff found herself without clerical assistance in June 2002 solely because she decided, unilaterally, not to rehire her clerical assistant Angelina Field, despite the fact that she had the authority to reappoint her. Wood Dep. at 126:20-22, 127:8-10. Plaintiff chose not to rehire Field because Field was "only five minutes late" "maybe every day, maybe three days out of the week."
While plaintiff responds to the question of why she did not reappoint Field by stating that "[b]ecause she had — she was tardy. And I needed someone to be in on time" (Wood Dep. at 26:23-27:2), she later claims that Field's "tardy" behavior was only part of the reason for her denial, and that Field "did not perform" consistent with the standards established by CUNY" (Wood Aff. ¶ 17). However, because plaintiff fails to provide any examples of Field's deficiencies, other than her lateness, any other shortcomings appear to have had far less influence over plaintiffs decision.
Id. at 128:4-8.
In response to plaintiffs accusation that defendant's refusal to hire a new assistant for plaintiff was motivated by racial bias, defendant offers several neutral explanations, which all stem from the budgetary restraints in place at the time. Andreas Aarbo, who has served in the Office of Financial Planning of City College since June 2003, and prior to that time, worked as Budget Director and then Director of Administrative Services and Budgeting for the Sophie Davis School, explains that:
Since I had not then [June 2002] received the Medical School budget from CUNY, which was projected to be very austere, I could not at that time, as Director of Administrative Services and budgeting for the Medical School, commit to hire a new part-time assistant to work for Mrs. Wood. For the same reason, I had blocked the appointment of part-time assistants in the Admissions Office. Once I received the budget, there were no funds available for a new part-time hire. Subsequently, on February 3, 2003, CUNY implemented a University-wide hiring freeze applicable to all full-time and part-time non-teaching positions.
Aarbo Decl. ¶ 8. Plaintiff not only fails to dispute this budgetary defense, but also concedes that a hiring-freeze was in effect in February 3, 2003. Wood Aff. ¶ 22. Plaintiffs empty assertion of pretext, with nothing to support her allegation that the budgetary rationale was not the true reason behind the denial, most certainly fails to rebut defendant's powerful non-discriminatory explanation. Further, plaintiffs admission that other African-American employees of the Sophie Davis School (Yvonne Kilpatrick and Brenda Duggins) have full-time assistants provides additional evidence to support defendant's assertion that race was not a factor in the school's refusal to hire a new clerical assistant for plaintiff. Therefore, even if this Court were to find that plaintiff established a prima facie case of disparate treatment based on the denial of clerical assistance, because plaintiff has failed to rebut defendant's legitimate rationale, summary judgment is appropriate in favor of defendant on this claim.
While Wood concedes that the hiring-freeze was in effect, she discounts this factor as relevant as the decision not to hire a new clerical assistant occurred prior to the implementation of he freeze. Wood Aff. ¶ 22. However, as explained by Aarbo, at the time that plaintiff requested a new assistant, while the hiring freeze was not yet officially in effect, and the Medical School had not yet received the budget, Aarbo had been forewarned that the budget would be "very austere" and therefore was restrained from making any hiring decisions until he received further confirmation.
Further, Aarbo and others offered to share the available clerical staff with plaintiff "on as as-needed basis[;]" however, because "Mrs. Wood wanted a more formal arrangement" and "believed she was entitled to her own assistant[,]" she "never availed herself of my offer." Aarbo Decl. ¶ 12; Kaler Decl. ¶ 4 (same). When the office changed location and Mrs. Wood had greater need for clerical assistance, Kaler "assigned Ms. Siksomsong [a clerical assistant] to assist Mrs. Wood with refilling the Medical School's personnel files," and "hired a work-study student to assist Mrs. Wood at the beginning of the Spring 2003 semester when her work in processing adjunct hires made her busier than usual." Kaler Decl. ¶ 8.
Plaintiffs assertion that these two individuals are not "in administration," while it may make this factor less decisive, in no manner renders this issue irrelevant.
4. Allowance of Use of Plaintiff For Clerical Purposes
Finally, plaintiff asserts that, because of racial bias, "other employees of similar rank" at the Sophie Davis School improperly utilized her for clerical purposes. Am. Compl. ¶ 16. This Court finds that the legitimate explanation offered by defendant entitles defendant to summary judgment because plaintiff either failed to make out a prima facie case or failed to rebut defendant's neutral evidence.
Notably, the employees that plaintiff targets under this claim — Aarbo, Kaler, and Gliwa — are actually all her supervisors. Def. Exh. EE ¶ 5; Gliwa Decl. ¶ 45; Aarbo Decl. ¶ 18. Aarbo, Kaler, and Gliwa "are in charge of the entire administrative, finance and budgeting function at the Medical School." Aarbo Decl. ¶ 18. In fact, in her deposition, plaintiff concedes that all three individuals at all times held positions at higher levels than plaintiffs. Specifically, Kaler and Gliwa served as plaintiffs direct supervisors (Am. Compl. ¶ 11; Kaler Decl. ¶ 1, 17; Wood Dep. at 68:18-23, 71:10-18), and Aarbo served as plaintiffs direct supervisor during the period October 1999 through June 2003 (Aarbo Decl. ¶¶ 3, 18; Wood Dep. at 62:8-15) and prior to October 1999, still functioned in a higher title (as a HEO) than plaintiff (id. at 64:10-14). Plaintiff conceded that Gliwa's job duties were "greater than" hers. Therefore, because none of these employees were similarly situated to plaintiff, comparisons between these three individuals and plaintiff are inapposite. See Shumay, 118 F.3d at 64.
Further, the clerical work, if any, that these individuals assigned to plaintiff, fell squarely within her job function. Aarbo asserts that he "never requested Mrs. Wood to perform tasks which were unrelated to her personnel or payroll function," but instead, on a few instances, "requested Mrs. Wood to prepare reappointment letters for Roman's signature, reappointing an employee for another fiscal year." Plaintiff conceded that Aarbo only asked her to perform clerical work for him, by typing letters, "a few times, maybe three or four times." Such minimal "clerical work," even if outside the scope of plaintiffs job description, would unlikely qualify as a materially adverse change in her environment, as the law requires. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) ("To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.") (internal quotations and citations omitted). Aarbo Decl. ¶ 19. Similarly, as conceded by plaintiff, Kaler "never requested Mrs. Wood to type letters for [him] or perform tasks which were unrelated to her personnel or payroll function." Kaler Dep. ¶ 18; Wood Dep. at 181:8-11. And, plaintiff also admitted that Gliwa never requested that plaintiff perform clerical work for her. Wood Dep. at 178:13-15. Therefore, plaintiffs claim based on her clerical role warrants summary judgment for defendant.
See CUNY Bylaws § 11.15 (HEA "serve[s] as an assistant to one of the major educational officers"); Pl. Job Descr. (One of the job duties and responsibilities of the HEA is to "["p]erform other personnel or payroll duties and special projects as assigned."). "The personnel portion of Mrs. Wood's position involved at times the preparation and processing of paperwork for HEO series employment actions, including hires, reappointments, merit raises and reclassifications. She also prepared the paperwork for job searches for faculty members." Gliwa Decl. ¶ 16. In addition, the clerical duties associated with plaintiff's position included the preparation of HEO packages, which "consisted principally of a series of typewritten data forms, including a job description, personnel vacancy notice, salary history, pre and post hiring organizational chart, and recruitment information. Id. ¶ 17.
To the extent that plaintiff asserts that her reduced workload was a materially adverse change, this claim is not cognizable. See Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) ("a decrease in workload, without any formal demotion or reduction in pay, does not constitute an actionable adverse employment action.")
C. Retaliation Claim
Plaintiff also claims that in retaliation for her SDHR action, defendant excluded her from the CBA, and specifically from Section 13.3b, and rescinded her CCA, despite her eight continuous years of service in the same HEO Series Title.
Title VII's anti-retaliation provision, § 704(a), makes it unlawful to retaliate against an employee, "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Similar to claims of disparate treatment, retaliation claims are analyzed under a three-part rule that requires that (1) plaintiff demonstrate a prima facie case of retaliation, (2) defendant then present evidence to demonstrate a legitimate, non-retaliatory reason for the complained of action, and (3), plaintiff demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation. See Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Tomka v. Seller Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). To make out a prima facie case of retaliation, a plaintiff must show (1) participation in a protected activity known to the defendant, (2) an employment action that disadvantages the plaintiff, and (3) a causal connection between the protected activity and the adverse employment action. See Reed v. A. W. Lawrence Co., Inc., 95 F.3d 1170, 1 178 (2d Cir. 1996).
Although it is undisputed that plaintiff engaged in a protected activity when she filed the complaint with the SDHR ( see Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)), the amount of time that elapsed between when plaintiff filed the complaint in April 1999 and when the alleged retaliatory employment action, the 2002 denial of the CCA occurred — approximately thirty-eight months — was too protracted to establish, on the basis of time alone, the requisite inference of a causal-link. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Clark County Sch. Dist. v. Breeden, 532 U.S 268, 273 (2001) (internal quotations and citations omitted). In Clark, the Supreme Court held that "[a]ction taken 20 months later suggests, by itself, no causality at all." Id.
As a result, plaintiff asserts that the SDHR's dismissal of her complaint on May 28, 2002, just less than one month before defendant rescinded her CCA status, and therefore clearly within the required temporal proximity, is also a protected activity. While plaintiffs theory has some logical appeal, plaintiff cites no authority to support her classification, and in fact, no precedent appears to exist. Instead, plaintiff asserts that this Court should break new ground because the failure to do so (1) will enable employers to delay retaliation until an agency has made a ruling adverse to the plaintiff, and (2) will thereby chill Title VII litigation.
Plaintiff asserts that this policy rationale creates an issue of fact, which renders a determination at summary judgment inappropriate Although policy implications most certainly do not create a question of fact, because the determination of whether the dismissal of an administrative complaint should become a 'protected activity is a question of law, I will address plaintiff's policy arguments in order to determine this seemingly novel question of law.
While there is some merit to plaintiffs concern that employers may otherwise receive protection from the dismissal of administrative actions, this Court declines to enlarge the ambit of protected activities to include an action performed solely by an administrative agency, as the culmination of an already protected action instituted by the plaintiff. The language of Title VII mandates that protected activities entail the active filing, testifying, assistance, or participation of the employee. 42 U.S.C. § 2000e-3(a). See also Deravin v. Kerik, 335 F.3d 195, 204 (2d Cir. 2003); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002). Title VII is designed to protect an employee's ability to act in defiance of discriminatory behavior, not an agency's ability to render a decision. See, e.g. McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d. Cir. 2001) (". . . Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.") (emphasis added).
It should be noted that this Court allowed plaintiffs retaliation claim to stand on this theory at the motion to dismiss stage because of the potential for plaintiff to introduce additional evidence, aside from temporal proximity, to link plaintiffs participation in the SDHR complaint with the defendant's decision to deny her the CCA. However, plaintiff failed to produce this necessary evidence.
Here, even if plaintiff makes a prima facie case based on the temporal proximity between the SDHR's dismissal and defendant's rescission, her claim must fail. The dismissal of plaintiffs retaliation claim rests not alone on whether she has made out a prima facie case, but whether she has in any way shape or form, been able to rebut the non-discriminatory rationale presented by defendant. Here, the defendant explains that prior to the SDHR's dismissal, discussions had already taken place with regard to the consolidation of plaintiffs role with others in similar positions at City College, and that it was during these discussions that the defendant realized that plaintiffs CCA had been improperly issued. While defendant's eleventh-hour enlightenment is troubling, the mortal blow to plaintiffs contentions is her failure to discount defendant's neutral explanation or even to raise the thought that race may have influenced the decision to rescind. As a result, summary judgment for defendant is proper.
Because plaintiff asserts that defendants were aware that she had filed the SDHR complaint prior to rescinding her CCA, and therefore offers slightly more than temporal proximity, this Court will look beyond plaintiffs failure to establish a prima facie case based on temporal proximity alone. See, e.g. Salerno, et al v. City Univ. of N.Y., et al, 99 Civ. 11151, 2003 U.S. Dist LEXIS 16474, at *43 (S.D.N.Y. Sept 18, 2003) ("They supplement temporal proximity with evidence concerning [defendants'] possible knowledge of plaintiffs' 1992 complaints, and the evidence of [defendants'] willingness to retaliate against employees who had consulted with the union; employees who offered information in the pending litigation; and people they perceived to lack 'loyalty.'") While the plaintiff in Salerno also offered evidence of defendants' past retaliation — not so here — the fact that the Court noted the importance of defendants' knowledge suggests that this Court allow plaintiffs claim to proceed past the prima facie stage.
In conformity with the CBA, it was then and had always been City College's practice not to issue CCAs to individuals in personnel positions.
Soon thereafter, when Roman and Snyder met in May or June 2002 to discuss, among other things, "whether the personnel function of the Medical School could be moved to the City College Human Resources Office" (Snyder Decl. ¶ 6), Roman requested that Snyder research whether Wood, as a Personnel/Payroll Officer, was actually eligible for a CCA. After consultations with Raymond O'Brien, Esq., then the Director of Instructional Staff Labor Relations at CUNY, Snyder informed Roman that employees in plaintiffs position were excluded because of concerns about their access to proprietary information, which could be used adversely in a collective bargaining situation. Id. ¶ 6-7. Therefore, despite the fact that "Mrs. Wood had been treated as covered by the Collective Bargaining Agreement since she was hired in 1993, that should not have happened and could no longer continue." Id. ¶ 8.
D. Hostile Work Environment Claim
Plaintiff claims she was subject to a hostile work environment with regard to the school's (1) reduction of her job duties, (2) transformation of her role into that of a clerical assistant, (3) denial to her of full-time clerical assistance, and (4) subjecting her to a few isolated remarks made by Gliwa or Kaler, that in plaintiffs mind, represented racial animus. Despite plaintiffs perception and interpretation, the evidence presented neither individually nor collectively suffices to establish an objectively hostile environment.
Because this claim is intertwined with others, it has not been discussed independently. In sum, plaintiff asserts that Gliwa systematically removed aspects of plaintiffs job duties as a result of plaintiffs race. While there is evidence to suggest that (a) the school had considered consolidation of plaintiff's role and Gliwa had suggested that plaintiff consider moving to a different department, and (b) several other employees independently chose to perform tasks themselves that were previously done by plaintiff, in order to avoid contact with plaintiff, there is no evidence to suggest that any reduction in plaintiffs duties stemmed from her race. Because plaintiff fails to provide the necessary evidence to support such a finding, the fact that plaintiff experienced a reduction in her workload does not establish racial discrimination.
"Title VII prohibits an employer from discriminating against any individual with respect to the 'compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Azon v. Metro. Transp. Auth., 00 Civ. 6031, 2002 U.S. Dist. LEXIS 8305, at * 12-13 (S.D.N.Y. May 7, 2002), citing 42 U.S.C. § 2000e-2(a)(1). "In order to prevail on a hostile work environment claim under Title VII, a plaintiff must show that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir. 2003) (citations and quotations omitted). "[T]his test has objective and subjective elements: the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Id. The factors to consider in a determination of whether an environment is sufficiently hostile are (1) the frequency of the discriminatory conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with an employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). When a court conducts a hostile environment analysis, it must consider the "totality of the circumstances." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 437-38 (2d Cir. 1999). "As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Alfano v. Costello, et al., 294 F.3d 365, 374 (2d Cir. 2002) (citations and quotations omitted). Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness. Id.
Objectively, plaintiff has not shown severe or pervasive harassment based on race. Because plaintiff relies largely on the evidence presented to establish her disparate treatment claims — which evidence, largely neutral on its face, either fails to establish a prima facie case or fails to rebut defendant's proffered non-discriminatory rationales — this evidence most certainly does not establish a hostile work environment.
Without providing any new evidence to support her assertions, plaintiff refers the Court to her discussion of disparate treatment, and specifically to her argument that she was "stripped of significant duties due to the denial of an assistant!,] "was reduced to a glorified secretary[,] and was forced to endure Gliwa's "racial bias towards her."
In addition, the isolated incidents of alleged racial disparagement that plaintiff offers, as explained supra, are rebutted, and do not warrant a finding of a racially hostile environment. The remaining exchange between Kaler and plaintiff, where plaintiff asserts that Kaler belittled her situation by "jok[ing]" that "the two white guys have assistants, but not the black woman," while insensitive, cannot alone meet the high standard required to establish a hostile work environment. Wood Aff. ¶ 21. Because the totality of the circumstances, most of which comprise unrebutted facially neutral behavior that plaintiff has failed to clothe in discriminatory dress, clearly fails to meet the necessary standard for hostility, defendant is entitled to summary judgment on this claim.
While one incident may transform an environment into a hostile one, in order to do so, this incident must be "extraordinarily severe," which this comment most certainly is not. See Howley v. Stanford, 217 F.3d 141, 153 (2d Cir. 2000); Alfano, 294 F.3d at 374. For instance, in Howley, the court found that a jury could infer a hostile work environment from the occurrence, alone, of a co-worker's "tirade" of disparagement, which included the allegation that the plaintiff only got her job through the performance of sexual favors, in a conspicuous manner in front of a large group of co-workers, who were all under the plaintiffs supervision. Further, in Howley, the fact that the plaintiff was a firefighter, a profession where success in preserving life and property depends on the unquestioning following of orders, the Court determined that the work environment could be paralyzed by the utterance of one crippling statement. In this case, not only is plaintiff not in a profession where absolute obedience and respect is crucial, but Kaler's statement was not nearly as violent, accusatory, and graphic as was the tirade in Howley.
III. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment on all of plaintiffs claims is granted. The Clerk of the Court is requested to close this motion and any other pending motions and remove this case from my docket.