Opinion
02 Civ. 103 (SAS).
June 27, 2003.
Bonnie Mussman, Esq., Mussman Northey, New York, New York, Attorney for Plaintiff.
Celena R. Mayo, Assistant Corporation Counsel, Office of Corporation Counsel of the City of New York, New York, Attorney for Defendant.
OPINION AND ORDER
Mary Grace Mullen brings this action against the City of New York; Jerry Cammarata, Commissioner of the New York City Department of Youth and Community Development ("DYCD"); Steven Feldman, First Deputy Commissioner of DYCD; Mario Bruno, Assistant Commissioner of DYCD; Carlton Mitchell, Deputy Commissioner of DYCD; and Arlene Ross, Assistant Commissioner of DYCD (collectively, "the City") alleging retaliation in violation of her First Amendment and civil rights pursuant to 42 U.S.C. § 1983 ("Section 1983") and Section 75-b of the Civil Service Law of New York ("Section 75-b"). Mullen also alleges that the city failed to reasonably accommodate her in violation of New York State Human Rights Law (N.Y. Exec. L. § 296) ("NYSHRL") and Title 8 of the Administrative Code of the City of New York (New York City Human Rights Law) ("NYCHRL"). Finally, Mullen brings a claim for intentional infliction of emotional distress.
The City now moves for summary judgment on all claims. For the following reasons, the City's motion is granted in part and denied in part.
I. FACTUAL BACKGROUND
From 1995 through July 1999, Mullen was employed by DYCD. See, Mullen Dec. ¶ 1. In February of 1999, Mullen's aunt became ill and Mullen took on the responsibility of caring for her. See id. ¶ 3. Between late February and June 1999, Mullen was out of the office at least 75% of the time. Near the end of June 1999, Deputy Commissioner Carlton Mitchell informed Mullen that her job required her to be in the office full time and she subsequently resigned her position. See id. ¶ 5.
At the time, DYCD was known as the New York city Department of Community Development. See 4/21/03 Declaration of Mary Grace Mullen ("Mullen Dec.") ¶ 1.
Mullen states that when she was unable to come to work she kept in contact with her office and supervisors and documented her absences, even though she was not required to submit documentation to justify these absences. See id. ¶ 4.
In May 2000, Mullen was rehired by DYCD as the Director of the Integrated County Plan ("ICP"). See id. ¶ 6. ICP is funded though a grant directed by the New York State Office of Children and Family Services and administered by DYCD. See Defendants' Rule 56.1 Disclosure ("Def. 56.1") ¶ 2. On July 13, 2000, Mario Bruno, Assistant Commissioner of DYCD, became Mullen's supervisor. See id. ¶ 3. Mullen alleges that at some point before October 18, 2000, she became aware that Bruno intended to use the grant monies for partisan political purposes and that she believed that she was responsible for making sure that the grant was lawfully administered. See Mullen Dec. ¶ 11. She raised her concerns with Bruno, Cammarata, Feldman, and Mitchell. See id. ¶ 13; see also 9/4/02 Deposition of John Donahue, Compliance Manager and Agency Advocate for DYCD ("Donahue Dep."), at 46. Michelle Berman, Deputy Commissioner for Administration, recalls that Mullen made complaints to her regarding Bruno's management of the ICP grant. See 9/13/02 Deposition of Michelle Berman ("Berman Dep.") at 12. Subsequently, Bruno began yelling at Mullen at meetings. See Mullen Dec. ¶ 14.
On October 18, 2000, at the end of a meeting, Bruno said to Mullen and Donahue, "If you fuck with me I burn down your house and knock up your dog." See id. Mullen believed that the comment was intended for her. See id. On October 19, 2000, Mullen made a formal complaint to the Department of Investigations ("DOI") with regard to both Bruno's comment and her general concerns about the suspected use of the ICP grant money for partisan political purposes. See id. ¶ 15; see also 9/10/02 Deposition of Catherine Staudtmauer, Deputy Commissioner and General Counsel for DYCD ("Staudtmauer Dep.") at 46. Due to the general friction between Bruno and Mullen, Feldman asked Mitchell to become the supervisor of the ICP project. See 9/16/02 Deposition of Carlton Mitchell ("Mitchell Dep.") at 2122. DOI informed DYCD of Mullen's complaint, referring the case to Staudtmauer for investigation. See 10/24/00 Memorandum from Gerard Hoey, Inspector General for the DOI, to Staudtmauer ("Hoey Mem."), Ex. 2 to 4/22/02 Declaration of Bonnie Mussman, plaintiff's attorney ("Mussman Dec."). On November 3, 2000, Stautdmauer conducted interviews with Mullen, Donahue, and Bruno regarding Mullen's complaint. See Stadtmauer Dep., at 56-57.
It is disputed whether the comment was made generally or to Mullen directly. See Donahue Dep. at 80.
Donahue reported to Staudtmauer a conversation that he had overheard a few days earlier in which he heard Bruno tell Greg Gigantiello, Cammarata's Chief of Staff, that Bruno would "get" Mullen. See Donahue Dep. at 58-59.
Stadtmauer eventually recommended to Cammarata that Mullen be removed from the ICP position because she did not think that Cammarata would want to remove Bruno. See id. at 58-60. On November 8, 2000, Mullen was transferred to the position of Director of the After School Corporation ("TASC"). See Mullen Dec. ¶ 17. Mullen again called DOI to express concern that she was being transferred in retaliation for her previous complaint.See 9/25/02 Deposition of Mary Grace Mullen ("Mullen Dep.") at 62-63. The TASC position was new and ill-defined at the time Mullen was transferred. See Mullen Dec. ¶ 17.
In fact, there was no project description. See Mullen Dec. ¶ 17.
Beginning in mid-October, Mullen developed laryngitis and by mid-November, her condition had worsened. See id. ¶ 21. From November 12, 2000, just shortly after she was transferred, through January 5, 2001, Mullen was absent from work at least two days a week and most weeks she did not come into the office at all. See Weekly Time Control Sheets for Mullen for the weeks of 11/12/00, 11/19/00, 11/26/00, 12/3/00, 12/17/00, 12/24/00, 12/31/00 ("Time Control Sheets"), Exs. M, O, P, R, CC, DD, FF, respectively, to 3/31/03 Declaration of Celena R. Mayo, defendants' attorney ("Mayo Dec."). Toward the end of November, Mullen informed her supervisors that as a result of medical issues she would not have control over her schedule for several weeks and that she therefore required flexibility. See Mullen Dec. ¶¶ 22, 23.
On November 30, 2000, Mullen requested "whistleblower" status from DOI and was informed by Hoey, on December 11, 2000, that she did not qualify for protection under the New York whistleblower statute. See 12/11/00 Letter from Gerard Hoey to Mullen ("Hoey Letter"), Ex. 15 to Mussman Dec. The DOI found that her transfer was protective and not retaliatory. See id.
Beginning in early December, Mullen was told that she had to submit medical documentation for each absence and that her TASC job required her to work from 9 a.m. to 5 p.m., five days a week. See Mullen Dec. ¶ 26; 9/19/02 Deposition of Arlene Ross ("Ross Dep.") at 78. Mullen also alleges that she was told that DYCD could not accommodate a flexible schedule in the TASC position. See Mullen Dec. ¶ 26. At a December 5, 2000 meeting, Mullen was informed that she would exhaust her sick and annual leave balances by December 8, 2000,; the rest of her absences would be without pay. See 12/8/00 Memorandum from Kathleen Dobrowsky, Director of Human Resources at DYCD, to Mullen ("Dobrowsky Memo"), Ex. S to Mayo Dec. Furthermore, Dobrowsky informed Mullen that she could request "sick leave" with appropriate documentation. Id. She also informed Mullen that she could request "reasonable accommodation." Id. Dobrowsky gave Mullen a reasonable accommodation form. See id.
On or about December 21, 2000, just under two weeks after Mullen exhausted her annual leave, Feldman asked Dobrowsky to prepare letters of termination and resignation for Mullen. See 12/21/00 Routing Slip from Dobrowsky to Feldman and attached Prepared Letter of Resignation from Mullen to Arlene Ross ("Letter of Resignation"), Ex. 19 to Mayo Dec. Shortly thereafter, Dobrowsky spoke with Hoey who indicated to Dobrowsky that Mullen had requested "whistleblower" status and advised her and DYCD to proceed cautiously and not terminate her right away.See Undated Dobrowsky Report to Cammarata on Mullen ("Dobrowsky Report"), Ex. 21 to Mussman Dec. On or around this date, Cammarata decided to hold off on Mullen's termination.See Berman Dep., at 80-83.
In late December 2000, and early January 2001, Mullen received several notices about her excessive absenteeism and a request for medical documentation upon her return to work. See 12/26/00 Letter from Ross to Mullen ("Ross Letter"), Ex. EE to Mayo Dec.; 1/4/01 E-mail from Ross to Mullen ("Ross E-mail"), Ex. HH to Mayo Dec. On January 9, 2001, Mullen's employment was terminated. See Mullen Dec. ¶ 31.
II. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party,'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A fact is material when "it `might affect the outcome of the suit under the governing law.'" Gayle, 313 F.3d at 682 (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, she "`must do more than simply show that there is some metaphysical doubt as to the material facts,'"Caldarola, 298 F.3d at 160 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), and she "`may not rely on conclusory allegations or unsubstantiated speculation.'" Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports her pleadings. See First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
In determining whether a genuine issue of material facts exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Niagara Mohawk, 315 F.3d at 175. Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel, 310 F.3d at 286 (emphasis added) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
III. ADVERSE EMPLOYMENT ACTION CLAIM
A. Legal Standard
The City moves for summary judgment on Mullen's claims that her First Amendment rights were violated when the City allegedly retaliated against her based on her speech. The retaliatory acts about which Mullen complains are: (1) the January 9, 2001 termination of her employment; (2) the November 8, 2000 transfer from her position as Director of ICP to Director of TASC; and (3) the alleged continued harassment to which she was subjected between her October 19, 2000 complaint to DOI and her termination.
To establish a prima facie case of retaliation in violation of the First Amendment's right to free speech, an employee must show that: (1) her speech is constitutionally protected; (2) she suffered from an adverse employment action; and (3) her speech was a motivating factor in the adverse employment action (causation). See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
I will consider Mullen's Section 75-b and Section 1983 claims together as both are governed by the same standard. See Sagendorf-Teal v. County of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996) (holding that a state law claim can be dismissed when the state law does not provide an additional theory of recovery); Trivedi v. Cooper, No. 95 Civ. 2075, 1996 WL 724743, at * 1 (S.D.N.Y. Dec. 17, 1996) ("The state law claim was not separately charged to the jury because it was redundant.").
For a public employee's speech to be protected by the First Amendment, it must touch on a matter of public concern. See Connick v. Meyers, 461 U.S. 139, 146 (1983); see also Cahill v. O'Donnell, 75 F. Supp.2d 264, 271-72 (S.D.N.Y. 1999). Speech is considered a matter of public concern if it is of political or social import to the community. Connick, 461 U.S. at 146. Personal grievances are not matters of public concern. Id.
Once a plaintiff has demonstrated that her speech is protected, she must show that the alleged retaliatory act is an adverse employment action. To demonstrate an adverse employment action, there must have been 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). A "materially adverse" change in working conditions "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal quotation marks and citations omitted). That is, "`not everything that makes an employee unhappy is an actionable adverse action.'" Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). While there is no exhaustive list of what constitutes an adverse employment action, the following actions, among others, qualify: "`termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.'" Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
Finally, causation can be established either by direct evidence of retaliatory animus or by circumstantial evidence; for example, by showing that the protected activity was closely followed in time by the adverse employment action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (finding that the district court erred in granting summary judgment dismissing plaintiff's claim where her termination came less than two months after the filing of her complaint with management); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (holding that the twelve-day period between plaintiff's initial complaint and her termination sufficient to establish causation); Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
Once causation has been established, the burden of proof shifts to the defendant to proffer a legitimate nonretaliatory reason for the adverse employment action. See Mount Healthy City Dist. Sch. Bd. v. Doyle, 429 U.S. 274, 287 (1977). An employer must show that it would have made the same decision in the absence of the employee's protected speech. See id. Unsatisfactory job performance may be a legitimate nonretaliatory reason for dismissal of an employee. See Hendrics v. Nat'l Cleaning Contractors, Inc., No. 95 Civ. 5240, 1998 WL 26188, at *3 (S.D.N.Y. Jan. 26, 1998). "The Second Circuit instructs that whether a plaintiff's job performance was satisfactory depends on the employer's criteria for the performance of the job. In the absence of any showing that these criteria were demanded in bad faith, a trial judge should not assess their reasonableness or relationship to the performance of the job." Id. (quoting Thornley v. Pennon Publishing, 104 F.3d 26, 29 (2d Cir. 1997) (internal quotation marks omitted)). Further, "[e]xcessive absenteeism has been repeatedly cited by courts as evidence of lack of satisfactory job performance." Id.
Mullen argues that her excessive absenteeism was due to the City's failure to reasonably accommodate her disability under the NYSHRL and the NYCHRL. However, as discussed below, Mullen does not make out a prima facie case that the City violated the NYSHRL. See infra, Part IV.
A plaintiff can survive summary judgment if she can show that the employer's proffered legitimate reasons are merely pretextual. See Piesco v. City of New York, 933 F.2d 1149, 1155 (2d Cir. 1991). "Summary judgment is precluded where questions regarding an employer's motive predominate in the inquiry regarding how important a role the protected speech played in the adverse employment decision." Id. "Pretext may be demonstrated either by the presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence, . . ., or by reliance on the evidence comprising the prima facie case, without more. . . ." Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 38 (2d Cir. 1994) (internal quotation marks and citations omitted). See also Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 154-56 (2d Cir. 1998) (holding that deposition testimony "standing alone, creates a triable issue of fact as to whether defendants' proffered reason is pretextual.").
1. Termination
Mullen has established a prima facie case that her termination was in retaliation for her protected speech. Mullen's initial complaint to DOI had two components. First, she complained of Bruno's threatening comment, "[i]f you fuck with me, I burn down your house and knock up your dog." This threatening comment, according to Mullen, followed a meeting at which Mullen raised concerns about Bruno's use of ICP grant money for partisan political purposes. Second, Mullen complained about Bruno's, and possibly others', impermissible use of the ICP grant. Her second complaint is clearly an issue of political and social import to the community; Mullen's speech is, therefore, entitled to constitutional protection. See Connick, 461 U.S. at 146.
Mullen's termination was clearly an adverse employment action.See Galabya, 202 F.3d at 640. Furthermore, Mullen has established a causal connection between her complaint to DOI and her termination. Mullen presents both direct and indirect evidence that her speech, more likely then not, was a motivating factor in the City's decision to terminate her employment. See Reed, 95 F.3d at 1178; Sumner, 899 F.2d at 209. First, Mullen offers evidence that shortly after her supervisors became aware of her request for whistleblower status they discussed and prepared for her termination. See Letter of Resignation.Second, the time frame between Mullen's termination on January 9, 2001, and her initial complaint to DOI on October 19, 2000, a difference of only eighty days, is sufficient to establish causation.
Furthermore, the decision to terminate Mullen was made at the very latest only twenty-one days after her supervisors were informed that she had requested whistleblower status. See Letter of Resignation.
The City argues that Mullen's absenteeism was the reason for her termination. Absent protection under section 296 of the New York Executive Law for employees with disabilities, absenteeism is a legitimate reason for termination. See Hendrics, 1998 WL 26188, at *3. As in Hendrics, the record shows a series of written notices, warnings, and reprimands by Mullen's supervisors informing her that her attendance and performance of certain tasks were unsatisfactory. See Ross Letter; Ross E-mail.
Despite the City's evidence of a legitimate non-retaliatory reason for Mullen's termination, Mullen presents evidence from which a reasonable trier of fact could conclude that the City's reliance on her absenteeism is pretextual. See Chambers, 43 F.3d at 38. First, Mullen provides evidence that the City was considering firing her almost immediately after it learned of her DOI complaint. See Berman Dep. at 81. Second, the initial determination to fire Mullen came within less than thirteen days after she exhausted her sick and annual leave balances. See Dobrowsky Memo. Third, Dobrowsky's personal notes and memos reflect conversations with DOI in which she was advised to hold off on Mullen's termination because DOI feared that Mullen could bring a retaliation claim. See Dobrowsky Report. Finally, Berman testified that documents regarding the spending of the ICP grant, which Mullen had specifically requested be sealed and preserved, had disappeared. See Berman Dep. at 84. Mullen may have needed these documents to establish a claim of retaliation.
2. Transfer
Mullen further argues that her transfer to TASC was an adverse employment action in retaliation for her previous complaints to DOI. Because Mullen's transfer was lateral, both in form and substance, it cannot constitute an adverse employment action.
A "`pure lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.'" Pimentel v. City of New York, No. 00 Civ. 326, 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002) (quoting Adeniji v. Administration for Children Serv., 43 F. Supp.2d 407, 426 (S.D.N.Y. 1999)). See also Williams v. Bristol-Meyers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) ("A transfer involving . . . no more than a minor change in working conditions will not do either.");Galabya, 202 F.3d at 641 (holding that plaintiff's transfer from one special education school to another was not an adverse employment action because plaintiff offered no evidence to show that the new assignment was "less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement").
"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.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In addition, courts are not limited in the job conditions that may be considered in determining whether a particular employment action is materially adverse. See, e.g., Crady, 993 F.2d at 136 (suggesting non-exclusive list of factors and noting that courts should consider "other indices that might be unique to a particular situation"). The key inquiry regarding involuntary transfers is whether the transfer constitutes a "negative employment action tantamount to a demotion." 1 Lex K. Larson, Employment Discrimination § 12.08[2] at 12-82 (2d ed. 1999) (citingKeeley v. Citibank, 711 F. Supp. 157 (S.D.N.Y. 1989)). See also Galabya, 202 F.3d at 641 (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (stating that in order for a lateral transfer to be considered an adverse employment action there must be a "materially significant disadvantage")).
Mullen claims that her lateral transfer to director of TASC was an adverse employment action. However, Mullen fails to show that upon her transfer she suffered a "materially significant disadvantage." Galabya, 202 F.3d at 641. Mullen argues that on December 5, 2000, she was presented with and asked to sign "tasks and standards for the position of Director of TASC" and that she refused to sign the document because she thought it was "essentially the responsibilities of contract monitors". Mullen Dec. ¶ 27. She further asserts that the December 13, 2000 managerial job description that was eventually produced, but rejected, did not include a list of subordinates. See Mullen's Memorandum of Law in Opposition to Motion for Summary Judgment ("Mullen Mem.") at 18. See also Management Position Description ("TASC Description") Ex. 4 to Mussman Dec. Mullen also relies on the fact that she was not invited to attend a TASC meeting on the day she was transferred.
The proposed "tasks and standards" has not been presented to the Court.
Mullen does not provide evidence to suggest that her responsibilities as director of TASC were any less significant than her responsibilities as director of ICP. She offers no evidence that her civil service title, salary or benefits, or possibilities for career advancement changed in any way. She also fails to show that her supervisory role as Director of ICP,i.e., having other employees report to her, was a significant component of her daily duties. See Galabya, 202 F.3d at 641. The December 13, 2000 job description, which was ultimately rejected because it did not include a list of subordinates, lists tasks and responsibilities that while different from her tasks and responsibilities as Director of ICP, are not significantly disadvantageous. See TASC Description. Moreover, Mullen has not and cannot provide anecdotal testimony to suggest that she suffered a "materially significant disadvantage," because she was rarely in the office to perform her tasks and responsibilities. Mullen has failed to show that her transfer to TASC was an adverse employment action.
Her responsibilities included: Contract management of the program and the provision of technical assistance, budget and program modification approval; development of monitoring mechanisms for contract managers to use; and development of policies and procedures to meet the goals of the program. See TASC Description.
Because neither Mullen's transfer to TASC nor the alleged continued harassment by DYCD are materially adverse employment actions, I will not address the other elements of a Section 1983 claim.
3. Harassment
Mullen's proof also fails to establish, as a matter of law, that the City's alleged harassment was significant enough to rise to the level of an adverse employment action. To establish a prima facie case of retaliation based on continued harassment, a plaintiff most show more than a "merely discourteous working environment." Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (holding that a jury could reasonably find that continued harassment of a female police officer over a two year period, including, forcing her to wear her bullet proof vest under her shirt, refusal of assistance in executing an arrest warrant, and continued admonishment and ridicule, was sufficient to find that such harassment significantly affected her job performance and health and was intended to silence her political speech). The Second Circuit has held that in order to prove that a series of minor occurrences rise to the level of an adverse employment action, a plaintiff must show that the "total circumstances of her working environment changed to become unreasonably inferior and adverse when compared to a typical or normal ideal or model workplace. . . . Incidents that are relatively minor and infrequent will not meet the standard, but otherwise minor incidents that occur often and over a longer period of time may be actionable if they attain the critical mass of inferiority."Id. Cf. Alfano v. Costello, 294 F.3d 365, 380 (2d Cir. 2002) (holding, as a matter of law, that five humiliating and insulting incidents over a four-year period did not create a hostile and abusive work environment).
Mullen's evidence of continued harassment does not rise to the level of a "critical mass of inferiority." Phillips, 278 F.3d at 109. Mullen argues that from the time she was transferred she was subjected to continued harassment, including not being invited to attend a TASC meeting on the day she was transferred and the continued insistence that she provide documentation for her absences. See Mullen Mem. at 19. Mullen further argues that she was subjected to more rigorous standards for providing medical documentation than others who had previously been absent for continuous periods of time. See id. at 9. However, as Mullen concedes, both she and other managers often submitted supporting documentation. In addition, she fails to acknowledge the significance of her own sporadic attendance and inability to inform her supervisors in advance of medical appointments.
Mullen also contends that alleged repeated refusals to accommodate her need for medical treatment are sufficient to constitute an adverse employment action. However, Mullen's disability does not qualify for protection under section 296 of the New York Executive Law. See infra, Part IV. While construing the facts in a light most favorable to Mullen, there is nothing in the record to support a claim that the City continually harassed Mullen, and that such harassment rises to the level of an adverse employment action.
For the foregoing reasons, the City's motion for summary judgment is denied with respect to Mullen's termination claim based on Section 1983 and Section 75-b. The City's motion to dismiss is granted with respect to Mullen's transfer claim and her claim of continued harassment.
IV. NYSHRL and NYCHRL
The City moves to dismiss Mullen's claim that it failed to accommodate her disability. Section 296 states that: "It shall be an unlawful discriminatory practice: (a) [F]or an employer . . . because of . . . [a] disability . . . to discharge from employment such individual. . . ." N.Y. Exec. L. § 296. "[T]he term `disability' means (a) a physical, mental or medical impairment . . . [which] is demonstrable by medically accepted clinical or laboratory diagnostic techniques . . . provided, however . . . the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job." Id. § 292(21). "[R]easonable accommodation" . . . include[s] . . . job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business. . . ." Id., § 292(21)(e). Mullen argues that the City discriminated against her because of her disability and in response to her demands for flexibility in her work schedule. See Mullen Mem. at 20.
NYSHRL and NYCHRL claims are analyzed in the same manner.See Romanello v. Shiseido Cosmetics Am. Ltd., No. 00 Civ. 7201, 2002 WL 31190169, at *7 (S.D.N.Y. Sept. 30, 2002).
"In order to set out a prima facie case of failure to accommodate . . . the plaintiff must show that (1) she has a disability as defined by the statute, (2) her employers had notice of the disability, (3) with reasonable accommodation she could perform the essential functions of her job, and (4) the defendants refused to make reasonable accommodations for her needs." Romanello, 2002 WL 31190169, at *7 (quoting Mitchell v. Washingtonville Central Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999)) .
The Second Circuit established this test with respect to a suit under the American with Disabilities Act. The same standard applies to the NYSHRL and the NYCHRL, with the exception of the definition of "disability," which has a broader interpretation under state law. See Romanello, 2002 WL 31190169, at *7 n. 2.
Reasonableness is usually a material question of fact; however, a court may decide, as a matter of law, that a request for leave is unreasonable in unusual circumstances. See Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 201 (S.D.N.Y. 1999). "Examples of such circumstances are: (1) where the request is for a very long leave of absence . . . (2) where the absences are so sporadic that the employer has no way of knowing from one day to the next, if their employee will even be reporting to work; (3) where it is clear that, even when the employee returns from the requested leave of absence, he or she will still be unqualified to perform the essential functions of their job; or (4) where the employee was hired to perform a specific task in a finite period of time, and the leave of absence would make it impossible for that task to be completed in that time." Id.
Mullen's laryngitis rendered her unable to speak and thus disabled under the NYSHRL. See Romanello, 2002 WL 31190169, at *7 n. 2 (holding that a disability is a condition that either (1) prevents the exercise of a normal bodily function or (2) is demonstrable by medical diagnostic techniques.); see also Aquinas v. Federal Express Corp., 940 F. Supp. 73, 76 (S.D.N.Y. 1996) (analyzing "disability" to include a condition that limits the ability to speak). In addition, her supervisors were informed of her disability. See Mullen Dec. ¶¶ 22, 23. However, assuming that her request for flexibility is an actual request for a reasonable accommodation, Mullen has failed to establish that this request was reasonable.
A leave of absence may in some circumstances be considered a reasonable accommodation. See Romanello, 2002 WL 31190169, at *9. Although Mullen never formally requested a leave of absence, her request for flexibility could be construed as such. In any event, that request would have been unreasonable. See Powers, 40 F. Supp.2d at 201.
Mullen's request for flexibility, in reality, was a request for freedom to absent herself from work. Mullen testified that managers were generally given flexibility in their schedule, so long as they worked the average forty hours per week. See Mullen Dep. at 129. In addition, she testified that between November and January, she did not work one forty hour week.See id. In fact, the time cards for those weeks show that she was in the DYCD office for a total of approximately forty hours over the course of almost two months. See Time Control Sheets.
Mullen's absenteeism precludes her from protection under NYSHRL. Although Mullen never requested a leave of absence, she essentially took one. The City has demonstrated that Mullen's absences were so sporadic as to make it impossible for her supervisors to know, from one day to the next, whether Mullen would be working or completing her tasks. See Powers, 40 F. Supp.2d at 199. Therefore, the City's motion for summary judgment with respect to Mullen's claims that it violated the NYSHRL and the NYCHRL is granted.
Mullen concedes that she was informed by Dobrowsky that she could ask for a reasonable accommodation. See Dobrowsky Memo.
V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, the City moves for summary judgment on Mullen's claim that the City is liable for tortious infliction of emotional distress. Mullen argues that the City's intentional infliction of emotional distress, through its continued harassment, caused her to suffer emotional and physical injury. See Mullen Mem. at 22. To properly state a claim for intentional infliction of emotional distress, plaintiff must show: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). To satisfy the first element, the conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Murphy v. American Home Prods. Corp., 461 N.Y.S.2d 232, 236 (1983) (internal quotation marks and citation omitted).
"[T]he law does not fasten liability on mere threats, annoyances or petty oppressions or other trivial incidents which must necessarily be expected and are incidental to modern life no matter how upsetting." James v. Saltsman, 472 N.Y.S.2d 129 (2d Dep't 1984). Allegations of continued harassment and intimidation, even those lasting over two years, and threats of termination resulting in health-related problems are insufficient to sustain an intentional infliction of emotional distress claim. See Stylianou v. St. Luke's/Roosevelt Hospital, 902 F. Supp. 54, 58 (S.D.N.Y. 1995) (quoting Spence v. Maryland Cas. Co., 995 F.2d 1147, 1158 (2d Cir. 1993)). Courts routinely dismiss claims for emotional distress in the employment context in the absence of battery or sex discrimination. See Gerzog v. London Fog Corp., 907 F. Supp. 590, 604 (E.D.N.Y. 1995).
Public policy bars bringing the tort of intentional infliction of emotional distress against a government entity.See Lauer v. City of New York, 659 N.Y.S.2d 57, 58 (2d Dep't 1997).
Here, Mullen's claims fall far short of that standard. First, Mullen's claim turns on Bruno's statement "[i]f you fuck with me I burn down your house and knock up your dog." See Mullen Mem. at 22. While this statement may be "outrageously" absurd it does not show a "campaign of harassment calculated to silence her." See id. at 23 (using similar language as that found in Huahs v. Patrolmen's Benevolent Ass'n of City of New York, 850 F.2d 876, 883 (2d Cir. 1988)).
There were no reported attempts to burn down her house or to impregnate her dog.
Mullen's reliance on Hughs, 850 F.2d at 883, is misplaced. In that case, the Second Circuit never reached the question of whether the alleged harassment was sufficient to withstand summary judgment.
Furthermore, allegations by Mullen that the City required her to provide documentation for her absences and refused to accommodate her need for flexibility are not so outrageous as to support a claim of intentional infliction of emotional distress. Summary judgment on Mullen's claim of intentional infliction of emotional distress is therefore granted.
VI. CONCLUSION
Mullen has established a genuine issue of material fact with respect to her Section 1983 claim and Section 75-b claim for retaliatory dismissal. Accordingly, summary judgment is denied as to these claims. Because there are no issues of material fact as to her remaining claims, the City's motion for summary judgment is granted in part and these claims are dismissed. A conference is scheduled for July 8, 2003 at 4:30 p.m.
SO ORDERED.