Summary
holding that denial of request for a lateral transfer from Manhattan to Brooklyn office not an adverse employment action
Summary of this case from St. Juste v. Metro Plus Health PlanOpinion
00 Civ. 326 (SAS)
May 14, 2002
Sylvia Pimentel, Brooklyn, NY, Plaintiff Pro Se.
Donald C. Sullivan, Esq., Assistant Corporation Counsel of the City of New York, New York, NY, for Defendant.
OPINION AND ORDER
Sylvia Pimentel has sued the City of New York ("City"), alleging that it has "discriminated against her in employment on the basis of her race, national origin, and her disability" in violation of various federal laws. Pimentel v. City of New York, No. 00 Civ. 326, 2001 WL 1579553, at *1 (S.D.N.Y. Dec. 11, 2001).
Pimentel also sued the City for retaliation based on its denial of her requests to be transferred from Manhattan to Brooklyn for medical reasons. On December 11, 2001, this Court granted summary judgement to the City on all of the claims except one: With respect to the retaliation claim, this Court held that Pimentel had proffered "sufficient circumstantial evidence to permit a rational factfinder to infer that defendant would have granted plaintiff a transfer had it not been for her various administrative complaints." Id. at *19.
The City now moves for reconsideration of the denial of summary judgement with respect to the retaliation claim. See Defendant's Memorandum of Law in Support of its Motion for Summary Judgment on plaintiff's Claim of Retaliation. The City does not challenge this Court's holding that plaintiff has produced sufficient evidence to raise a material issue of fact as to whether it denied her transfer in retaliation for her complaints of discrimination. Rather, the City argues that plaintiff "did not suffer an adverse employment action when her transfer request was denied," an issue that was not previously addressed. Id. at 1; see also 12/19/01 Letter from Donald C. Sullivan, Assistant Corporation Counsel to the City of New York at 4.
For the reasons set forth below, the motion for summary judgement on Pimentel's retaliation claim is now granted.
II. LEGAL STANDARD
A motion for summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law. A reasonably disputed, legally essential issue is both genuine and material and must be resolved at trial." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (quotation marks and citations omitted).
In determining whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (quotation marks and citations omitted) (alteration in original).
III. FACTS
In 1988, Pimentel began working for the City in the Bureau of Child Welfare. See Pimentel, 2001 WL 1579553, at *1. Two years later, she became a permanent Civil Service employee holding the position of caseworker. See id. In January 1997, Pimentel was promoted on a probationary basis to a supervisory position in the City's Administration for Children's Services Office of Child Support Enforcement ("OCSE"). See id. Over the next seven months, Pimentel received numerous memoranda that criticized her performance as a supervisor and, in August 1997, she was demoted to her previous position as a caseworker. See id. In January 1998, Pimentel filed a charge of discrimination with the New York City Commission on Human Rights that alleged that the City demoted her because of her race and national origin. See id.
Familiarity with this Court's previous decision is presumed; only those facts that relate to Pimentel's claim of retaliation are presented here.
Seven months later, in August 1998, Pimentel was diagnosed with Hepatitis C. See id. One week later, Pimentel requested a transfer to OCSE in Brooklyn claiming that stress caused by harassment in the Manhattan OCSE office would worsen her medical condition. See 8/13/98 Letter from Sylvia Pimentel attached to Notice of Motion for Summary Judgment in Favor of Defendant. A few weeks later, on September 1, 1998, Pimentel filed a charge of retaliation with the New York State Division on Human Rights in which she claimed that the City had retaliated against her by giving her poor job assignments, disciplinary memoranda, and performance evaluations for previously filing a charge of discrimination. See Pimentel, 2001 WL 1579553, at *1.
On two occasions during the following year, Pimentel requested that the City transfer her out of OCSE altogether — on March 25, 1999, and September 8, 1999. See id. In the first request, she cited management's alleged harassment. See 3/25/99 Letter from Sylvia Pimentel attached to Notice of Motion for Summary Judgment in Favor of Defendant ("Def. Not. Mot."). In the second request, sent a few weeks after Pimentel began a treatment regime for Hepatitis C, she claimed that the harassment had caused her medical condition to worsen and again requested a transfer out of OCSE. See 9/8/99 Letter from Sylvia Pimentel attached to Def. Not. Mot. None of Pimentel's transfer requests were granted. See Pimentel, 2001 WL 1579553, at *1. Three weeks after her last transfer request, on September 22, 1999, Pimentel filed another complaint of discrimination that alleged she was being discriminated against on the basis of her disability (Hepatitis C), race and national origin. See id. Among other things, Pimentel alleged that the City was wrongfully refusing to transfer her. See id.
Pimentel began Rebetron injection therapy on August 13, 1999. See 10/13/99 Letter from Dr. Jane Geders to Dr. Carmen Co attached to Notice of Motion for Summary Judgment in Favor of Defendant.
On January 18, 2000, Pimentel filed the instant Complaint. The sole remaining issue is whether the denial of Pimentel's transfer requests constituted an adverse employment action.
IV. TRANSFERS AND DENIALS OF TRANSFER REQUESTS AS ADVERSE EMPLOYMENT ACTIONS
Title VII prohibits an employer from retaliating against an employee who has complained of discrimination. See 42 U.S.C. § 2000e-3(a) (1994). To make out a prima facie case of discriminatory retaliation a plaintiff must demonstrate that: (i) she engaged in an activity protected under Title VII; (ii) the employer was aware of her participation in the protected activity; (iii) the employer took an adverse employment action against the employee; and (iv) a causal connection existed between the employee's protected activity and the adverse employment action taken by the employer. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). Title VII prohibits discriminatory acts that affect the "terms and conditions" of employment. See 42 U.S.C. § 2000e-3(a); Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001).
Examples of adverse employment actions are "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
The Second Circuit has also held that lesser actions may meet the adversity threshold, but it has not explicitly defined what quantum of lesser actions constitutes an adverse employment action. Id. "Because there are no bright line rules as to which employment actions meet the threshold for `adverse,' courts must make this determination on a case-by-case basis." Wilburn v. Fleet Fin. Group, Inc., 170 F. Supp.2d 219, 237 (D.Conn. 2001), (quoting Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)).
To sustain an adverse employment action, a plaintiff must "endure a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2001) (quoting Richardson, 180 F.3d at 446). In order for the action(s) to be "`materially adverse', a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). A "`material adverse change' is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) (citations omitted). While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002). See also Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236 (S.D.N.Y. 2001).
A. When a Transfer or Denial of a Transfer Request Is an Adverse Employment Action
Denial of a transfer request may constitute an adverse employment action in certain circumstances. For example, a transfer has an adverse impact on the terms and conditions of employment if the employee: (i) has the same job responsibilities and compensation but an increase in workload and location-specific stress; (ii) has different job responsibilities; (iii) is no longer eligible for promotion opportunities; or (iv) experiences a net loss in salary. An adverse employment action may also occur when an employee is transferred "from an `elite' division . . . which provided prestige and opportunity for advancement, to a less prestigious unit with little opportunity for professional growth." de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 82 F.3d 16, 21 (2d Cir. 1996). Finally, denial of a transfer request may constitute an adverse employment action where an employee's work environment prior to the request is objectively unfavorable.
B. When a Transfer or Denial of a Transfer Request Is Not an Adverse Employment Action
See Patrolmen's Benevolent Ass'n of the City of New York, Inc. v. City of New York, 74 F. Supp.2d 321, 335-36 (S.D.N.Y. 1999) (holding that involuntary transfer of police officers was an adverse employment action because of reduced status and an increased workload and stress).
See Richardson, 180 F.3d at 444 ("There was sufficient evidence to conclude that the transfer and reassignment — which involved different job responsibilities and a move to a position involving contact with a prisoner population — constituted an adverse employment action.").
See Stembridge v. City of New York, 88 F. Supp.2d 276, 283 (S.D.N.Y. 2000) (finding that transfer of employee together with ineligibility for promotion opportunities pending resolution of dispute with supervisor was an adverse employment action).
See Bampoe v. Coach Stores, Inc., 93 F. Supp.2d 360, 373 (S.D.N.Y. 2000).
See Mecklenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 378 (S.D.N.Y. 1999) (holding that denial of a request to transfer, from a department where working conditions were objectively unfavorable due to the measurable shortage in staff, to a department where conditions were more favorable constituted 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." Adeniji v. Admin. for Children Serv., NYC, 43 F. Supp.2d 407, 426 (S.D.N Y 1999) (internal citations omitted). "[T]he mere fact that an employee has been transferred or that his job responsibilities have changed is not in itself sufficient to show an adverse change in working conditions." Cooper v. New York State Dep't of Human Rights, 986 F. Supp. 825, 828 (S.D.N.Y. 1997). Thus, denial of a request to transfer to an office of the same agency or department in a location more convenient to the employee's home, where there will no significant change in duties or opportunities for advancement, does not constitute an adverse employment action.
See Nonnenmann v. City of New York, 174 F. Supp.2d 121, 133 (S.D.N.Y. 2001) (holding that denial of officer's request to transfer to a more convenient precinct was not an adverse employment action because the transfer would not have involved a material change in working conditions and because Nonnenmann did not allege that the salaries, benefits and opportunities for advancement in the two locations were different); see also Duncan v. Shalala, No. 97 CV 3607, 2000 WL 1772655, at *4 (E.D.N.Y. Nov. 29, 2000) (holding that denial of a transfer request so that an employee could live near his wife was not an adverse employment action).
An "adverse employment action affects the terms, privileges, duration, or conditions of the plaintiff's employment" and, for that reason, "subjective feelings . . . are not enough to transform the denial [of a transfer request] into an adverse employment action within the meaning of Title VII." Bunis v. Runyon, No. 94 Civ. 2063, 1997 WL 639241, at *3 (S.D.N.Y. Oct. 16, 1997). If an employee "earns the same salary, has the same benefits, works the same hours . . . and has the same opportunities for promotion" following a transfer then there is no adverse employment action, even if the employee is "extremely unhappy about it." Garber v. New York City Police Dept., No. 95 Civ. 2516, 1997 WL 525396, at *4 (S.D.N.Y. Aug. 22, 1997) (holding that "purely subjective feelings about a transfer which, by objective standards, did not negatively alter the terms and conditions of his employment in any respect" have no bearing on whether an adverse employment action occurred). Interference with "sleeping, therapy, eating and medication schedules are purely subjective matters that Title VII does not address." Armfield v. Jacobson, No. 95-CV-4820, 1998 WL 427560, at *6 (E.D.N.Y. Jan. 21, 1998).
See also Morris, 196 F.3d at 113 ("Morris does not allege that the transfer here involved any change in job description, days and hours, duties, benefits, or opportunity for promotion. It follows that the transfer was not an adverse employment action.").
Denial of "requested transfers [that] did not involve an upgrade in position or increase in wages" is not an adverse employment action. Gonzalez v. FedEx Co., No. 95 Civ. 3529, 1998 WL 289722, at *4 n. 7 (S.D.N.Y. June 3, 1998). In such a case, an employee is not seeking a better position or enhanced conditions and is not harmed by denial of a transfer request.
V. PIMENTEL'S CLAIMS
A. Denial of Pimentel's Request for a Lateral Transfer Was Not an Adverse Employment Action
On August 13, 1998, Pimentel made her first request for a transfer — a pure lateral transfer to the OCSE office in Brooklyn. The denial of this request fails to constitute an adverse employment action for four reasons. First, there would have been no discernible difference in job responsibilities. She would have served the public in Brooklyn — the same public — just as she did in the Manhattan office. There is no objective evidence that the workload and associated levels of stress were different. See supra Parts IV.A. and B. Second, where there is no loss of salary, benefits, seniority, tenure or promotion opportunities, there is no adverse employment action. In this case, Pimentel does present any evidence, or even claim, that the requested transfer would have improved the terms and conditions of her employment. See supra Parts IV.A. and B. Third, a transfer, or denial of a transfer, to a more or less convenient location does not, by itself, constitute an adverse employment action. See supra Part IV.B. Fourth, Pimentel's claim that she would have been happier or more at ease in the Brooklyn office of the OCSE cannot elevate the denial of her request to an adverse employment action because it is based only on her subjective feelings. See supra Part IV.B.
B. Denial of Pimentel's Request for a Transfer Out of OCSE Was Not an Adverse Employment Action
See also Richardson, 180 F.3d at 446; Patrolmen's Benevolent Ass'n, 74 F. Supp.2d at 335-36; Adeniji, 43 F. Supp.2d at 426; Cooper, 986 F. Supp. at 828.
See also Galabya, 202 F.3d at 641; de la Cruz, 83 F.3d at 21; Bampoe, 93 F. Supp.2d at 373; Stembridge, 88 F. Supp.2d at 283.
Pimentel had not yet started medical treatment when she requested a transfer to the Brooklyn office. Denial of this request therefore had no impact on her ability to seek ongoing medical treatment.
See also Nonnenmann, 174 F. Supp.2d at 133; Duncan, 2000 WL 1772655, at *4.
See also Morris, 196 F.3d at 113; Armfield, 1998 WL 427560, at *6; Bunis, 1997 WL 639241, at *3; Garber, 1997 WL 525396, at *4.
Pimentel's second and third request, if granted, would not have constituted a pure lateral transfer because she asked to be transferred out of OCSE altogether. Nonetheless, her claim of an adverse employment action based on the denials of these transfers fails for two reasons. First, while Pimentel claims that the Manhattan office of OCSE is a particularly stressful place for her, she has not offered any evidence that conditions in this office are objectively worse than conditions at other City agencies where employees interact with the public on a regular basis. See supra Part IV.A. Second, when Pimentel requested a transfer out of OCSE, she did not request assignment to any particular agency. As a result, there is no way to evaluate whether the denials involved "an upgrade in position or increase in wages."
See also Mecklenberg, 42 F. Supp.2d at 378.
Accordingly, I cannot conclude that plaintiff suffered an adverse employment action. See supra Part IV.B.
See also Gonzalez, 1998 WL 289722, at *4 n. 7.
VI. CONCLUSION
Because Pimentel has failed to establish that denial of her transfer requests constituted an adverse employment action, the defendant's motion for summary judgment is granted. The Clerk of the Court is directed to close this case.
SO ORDERED: