Opinion
16-cv-6099 (AT) (JW)
08-18-2023
HEENA SHIM-LARKIN, Plaintiff, v. CITY OF NEW YORK, Defendant.
Honorable Analisa Torres, United States District Judge
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Heena Shim-Larkin (“Plaintiff”), a former seasonal lifeguard with the New York City Department of Parks & Recreation, commenced the instant lawsuit on August 1, 2016. Dkt. No. 1. Plaintiff alleges discrimination based on her national origin, race, color, age, protected status as a victim of domestic violence, and disabilities in violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), the Americans With Disabilities Act, 42 U.S.C. §§ 12112, et seq. (“ADA”), the New York State Human Rights Law, N.Y. Executive Law §§ 290, et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Administrative Code §§ 8-101, et seq. (“NYCHRL”) as applicable; including claims of a hostile work environment, constructive discharge, failure to accommodate Plaintiff's disabilities, and unlawful retaliation. Dkt. No. 30 (the “Amended Complaint”).
On May 10, 2022, this action was referred for a Report and Recommendation on anticipated motions for summary judgment. Dkt. No. 786. On November 1, 2022, Defendant City of New York (“Defendant”) filed notice of their Motion for summary judgment, Dkt. No. 814 (“Defendant's Motion” or “Def. Mot.”), as well as a memorandum of law in support of their motion, Dkt. No. 817 (“Defendant's Memo” or “Def. Memo”), a Rule 56.1 Statement of Material Facts, Dkt. No. 815 (“Def. SMF”), a Declaration from Dominique F. Saint-Fort, Dkt. No. 816 (“Fort Decl.”), and a Declaration from Miguel Morel. Dkt. No. 818 (“Morel Decl.”). Also on November 1, 2022, Plaintiff filed her Motion for partial summary judgment, Dkt. No. 819 (“Plaintiff's Motion” or “Pl. Mot.”), as well as a memorandum of law in support of her motion, Dkt. No. 822 (“Plaintiff's Memo” or “Pl. Memo”), a Rule 56.1 Statement of Material Facts, Dkt. No. 820 (“Pl. SMF”), and a Declaration from Heena Shim-Larkin. Dkt. No. 821 (“Larkin Decl.”).
On December 16, 2022, Defendant filed a memorandum of law in opposition to Plaintiff's Motion, Dkt. No. 828 (“Defendant's Opposition” or “Def. Opp.”), as well as a declaration, Dkt. No. 829 (“Fort Opp. Decl.”), and a counter statement of material facts. Dkt. No. 830 (“Def. Counter SMF”). On January 31, 2023, Plaintiff filed a memorandum of law in opposition to Defendant's Motion, Dkt. No. 837 (“Plaintiff's Opposition” or “Pl. Opp.”), as well as a declaration, Dkt. No. 838, (“Larkin Opp. Decl.”), and a response to Def. SMF. Dkt. No. 839 (“Pl. Resp. SMF”).
On February 21, 2023, Defendant filed a reply to Plaintiff's Opposition, Dkt. No. 846 (“Def. Reply”), as well as a memorandum of law in support of their reply, Dkt. No. 845 (“Def. Reply MoL”), and a declaration in further support of Defendant's Motion. Dkt. No. 844 (Def. Reply Decl.”). Finally, on March 16, 2023, Plaintiff filed a reply memorandum of law in further support of Plaintiff's Motion for partial summary judgment, Dkt. No. 853 (“Pl. Reply MoL”), along with a supporting Declaration. Dkt. No. 854 (“Pl. Reply Decl.”).
For the reasons stated below, it is this Court's recommendation that Defendant's Motion be GRANTED in part, and Plaintiff's Motion be DENIED.
BACKGROUND
Plaintiff Heena Shim-Larkin was employed by the New York City Department of Parks and Recreation as a seasonal lifeguard at the Tompkins Square mini pool (“Tompkins Square”) from July 2, 2015 to August 19, 2015. Pl. Resp. SMF at 5, 20. During the summer of 2015, Plaintiff and Jessica Navarro (“Navarro”) were both lifeguards assigned to Tompkins Square where Miguel Morel (“Morel”) was a head lifeguard. Id. at 6. Plaintiff alleges she perceived that Morel was her supervisor because he was responsible for “scheduling, days off, breaks, and assignment of tasks” at Tompkins Square. Id. Defendant alleges Morel was not Plaintiff's supervisor as he did not have the authority to “hire, fire, evaluate, transfer or reassign” Plaintiff. Id. Parties do not dispute that Martin Kravitz (“Kravitz”) and Vladmir Rodriguez (“Rodriguez”) were Plaintiff's supervisors. Id. at 7.
Plaintiff was 29 years old when she worked at Tompkins Square. Pl. Resp. SMF at 13. Plaintiff is from Korea and was a permanent resident in the U.S. during the summer of 2015. Id. at 23. Plaintiff identifies as a victim of domestic violence, and she lived in a domestic violence shelter during the summer of 2015. Id. at 2. Plaintiff alleges she was diagnosed by her father, a psychiatrist, with anxiety. Id. Plaintiff further states that she suffers from psychological disorders that substantially interfere with her ability to participate in major life activities. Id. at 23. Plaintiff alleges unlawful discrimination at Tompkins Square during the summer of 2015 based on her protected status as a victim of domestic violence, race, ethnicity, color, national origin, age, and disabilities. See Amended Complaint.
Beginning with Plaintiff's status as a victim of domestic violence, Plaintiff's first day of work was scheduled for July 1, 2015, but it was agreed with a lifeguard coordinator that she would start the next day because Plaintiff had a doctor's appointment necessary for her to reside in a domestic violence shelter. Pl. Resp. SMF at 5. Plaintiff testified that when she met Morel on July 3rd, he asked where she was on July 1, 2015, and Plaintiff informed him that she had a doctor's appointment “necessary . . . to live in the domestic violence shelter.” Id. at 7. Plaintiff testified Morel stated, “that's not a good way to start,” in response. Id. Plaintiff alleges that she believes this is one of the reasons Morel gave her unequal breaks. Id.
Regarding racial/ethnic discrimination, Plaintiff alleges Morel made several comments indicating that he favored Hispanic people over other races. Pl. Resp. SMF. at 26. On July 3, 2015, Plaintiff alleges Morel asked if Plaintiff's husband was Korean and when she indicated that her ex-husband was white, “a look of disgust came over Morel's face and he said, ‘Yeah? A white boy?'” Id. Plaintiff also claims Morel once commented to another co-worker that, “white girls always win.” Id. at 27. Plaintiff could not recall whether Morel ever said anything about Asian people. Id. at 13. However, Plaintiff asserts that Defendant failed to retain Kravitz's phone and messages between Kravitz and Morel on relevant dates which could be inferred to show Morel's hostility towards Asian people. Id. On September 16, 2019, the Honorable Kevin Nathaniel Fox issued an order regarding sanctions for spoilation. Dkt. No. 539 at 19-23. Specifically, the Court ordered that Plaintiff could present to the jury a “quantum of evidence that will enable it to consider the gravity of the defendant's conduct, the materiality of the evidence that the defendant allowed to be destroyed and import of the remaining proof, coupled with an instruction to the jury that it may presume that the lost information was unfavorable to the defendant. . .” (citation and internal quotation marks omitted). Id. at 23.
Further with respect to race and ethnicity, Plaintiff states that Morel and Navarro often spoke Spanish to each other around Plaintiff. Pl. Resp. SMF at 27. She further claims Navarro made discriminatory comments about Asian people. On one occasion, Plaintiff alleges Navarro asked Plaintiff what language she spoke, and whether Plaintiff could assist a patron who spoke Chinese. Id. at 11; 27. When Plaintiff said she did not speak or understand Chinese, Navarro keep “pressing the point” saying that while Navarro was Columbian, she spoke Spanish and could understand Dominican people when they spoke Spanish. Id. at 11-12. Plaintiff further testified that during the same instance, Eric Love, a Department of Parks and Recreation security service employee said, “Chinese and Koreans are the same.” Id. at 12. Finally, Plaintiff testified that on another occasion Navarro told her about a conversation between Navarro and Kravitz where Navarro allegedly said she was not sure whether she wanted to keep working with Plaintiff because “[s]he is Korean and she is old.” Id.
Regarding Plaintiff's age, in addition to Navarro's comment that Plaintiff was old, Plaintiff alleges that Kravitz and Rodriguez said they expected issues between Plaintiff, Morel and Navarro because Plaintiff was older than them. Pl. Resp. SMF at 13. Further, Plaintiff alleges Kravitz told her that it must be a problem for Plaintiff to work with someone younger because lifeguards usually start around 16 and Plaintiff was 29. Id.
With respect to Plaintiff's national origin, on July 10, 2015, Plaintiff had an immigration appointment. Pl. Resp. SMF at 8. Plaintiff testified that she told Morel and Navarro about her immigration appointment in advance because she wanted to take the day off work. Id. Plaintiff alleges that Morel refused to give her the day off because Navarro was taking the day off, but Morel told her to leave early for the immigration appointment and not tell Kravitz. Id. Plaintiff admits that she was able to go to her scheduled immigration appointment. Id. Plaintiff alleges she experienced verbal abuse related to her citizenship status and, as one example cited that when she commented on Morel coming to work late, he responded, “I let you go to your immigration appointment.” Id. at 9.
Regarding Plaintiff's disability claims, she alleges that she requested a transfer as an accommodation for her anxiety, but was denied a transfer. Pl. Resp. SMF at 14. Plaintiff alleges that she was discriminated against based on her protected characteristics as further detailed below.
On July 12, 2015, Plaintiff sent a message to Kravitz stating “I'm taking a 15 min break before lunch and another 15 after lunch. While they are taking a break more than 3 hours per day usually. I suggested [to Morel] that we should take an equal amount of break but he refused.” Pl. Resp. SMF at 11. Kravitz testified that he subsequently met with Plaintiff, Navarro and Morel to discuss breaks and informed them that each lifeguard has to be on duty an equal amount of time. Id. Plaintiff disputes this and says Kravitz said it was okay so long as Plaintiff was given her two 15-minute breaks. Id.
On July 21, 2015, Morel yelled at Plaintiff in front of pool patrons (the “Yelling Incident”). Pl. Resp. SMF at 13. One patron, Leticia Vargas, reported the incident to New York City's citizen complaint reporting telephone line at 311. Id. Ms. Vargas testified that Morel was screaming at Plaintiff for 20 minutes and the report refers to a lifeguard arguing in front of children. Id. at 13-14.
On July 28, 2015, Plaintiff sent a message to Kravitz asking “for [a] transfer to another pool.” Pl. Resp. SMF at 14. Plaintiff alleges that on July 29, 2015, she verbally asked Kravitz for a transfer to another pool, as a reasonable accommodation because she had anxiety and depression and could not work at Tompkins Square anymore. Id.
On July 31, 2015, Plaintiff sent another message to Kravitz, which stated, “[t]hey made a new schedule. I think it's bizarre. It looks like there are two lifeguards instead of three.” Pl. Resp. SMF at 15. Kravitz testified that he told Morel or Navarro “[w]hen there are three of you, two people have to be on deck . . . change it.” Id.
On August 4, 2015, Plaintiff sent Kravitz another message, which said, “I can only work until around August 25th because of my personal situation. Is that okay?” Pl. Resp. SMF at 15. Later the same day, Plaintiff alleges that she was left alone at the pool desk and needed to go to the restroom. Id. at 16. Plaintiff alleges she asked Morel and Navarro to return to the pool deck to relieve her, but when they did not, she attempted to close Tompkins Square. Id.
On August 6, 2015, Kravitz had a Supervisor's Conference with Plaintiff and told her she was not permitted to close the pool “except at designated times for specific health reasons.” Pl. Resp. SMF at 16. Plaintiff contends that Kravitz admitted in his deposition that closing the pool is a reasonable action when a lifeguard is alone on the deck, needs to go to the restroom, and no one can relieve them. Id. at 17. Plaintiff claims that on at least three occasions Navarro and Morel refused to relieve her from duty on the pool deck to go to the restroom. Id. at 10.
On August 19, 2015, Plaintiff alleges she completed a seasonal resignation form, and stated her reason for resignation was “too much stress.” Id. at 17. Plaintiff states that Kravitz took the first form, said he would shred it, and told Plaintiff to file out a new form citing “personal reason” as the reason for resignation. Id. Defendant disputes this and cites to the seasonal resignation form that stated, “personal reason” as the reason for resignation and the date of resignation as August 22, 2015. Id.
Later on August 19th around 5:02pm, Plaintiff sent Kravitz a message stating, “I need to take a break but they both ran away.” Pl. Resp. SMF at 17. She claims that both Morel and Navarro were working at Tompkins Square, but refused to come relieve her from the pool deck. Id. Plaintiff alleges that Kravitz called the other lifeguards to come back to the pool and later Navarro shouted, “[r]emember [s]nitches get stitched [sic.]!” Id. at 18. Plaintiff claims that as she tried to walk past Morel, he turned the water hose on and off, then Morel sprayed water with the water hose on Plaintiff's clothing and face, “making it difficult for her to open her mouth and eyes.” (the “Water Spraying Incident”). Id. Plaintiff alleges she tried to brush it off and not engage with Morel, but after it persisted, she sprayed Morel with water from her water bottle. Id. at 19. Plaintiff messaged Kravitz, “[Morel] attacked me with the hose and water.” Id. at 17. Around 7:18pm, Plaintiff went to the police and reported the incident. Id. at 20. Plaintiff reported that Morel, “as retaliation for telling on him to her boss . . . sprayed her with the hose.” Id. Plaintiff alleges she experienced an anxiety attack after the Water Spraying Incident. Id. at 33. Plaintiff states she couldn't eat, or sleep following the incident. Id. She called in sick the next day and said Morel attacked her the day before so she didn't feel safe and could not work anymore. Id. at 20.
The next day, on August 20, 2015, Kravitz sent Plaintiff a message asking if she wanted to work at the Vesuvio Pool on that date instead. Pl. Resp. SMF at 20. Plaintiff admits she did not respond to the message, but alleges she did not know if the was a transfer or a one-day accommodation. Id.
On September 1, 2015, Plaintiff submitted a complaint for discrimination to New York City Parks Equal Employment Opportunity Office citing that the alleged basis of discrimination was “victim of domestic violence, sex offenses, stalking.” Pl. Resp. at 20-21. On October 29, 2015, the United States Equal Employment Opportunity Commission (“EEOC”) received Plaintiff's filed charge of discrimination and retaliation. Id. at 2-3. The EEOC sent Plaintiff a Notice of Right to Sue dated July 26, 2016. Id. at 3.
During the summer of 2016, Plaintiff returned as a seasonal lifeguard and was assigned to Gertrude Ederle Pool. Id. at 22.
LEGAL STANDARD
As a general matter, “[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotations omitted).
To prevail on a motion for summary judgment, the movant must “show [ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the nonmoving party. Coll., 521 F.3d 130, 132 (2d Cir. 2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” because “conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).
Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
DISCUSSION
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), claims of employment discrimination are analyzed under a burden-shifting framework. To establish a prima facie case of discrimination under Title VII, NYSHRL, or NYCHRL, a plaintiff must show (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified for the position they held, (3) the plaintiff was subject to an adverse employment action, and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. See Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010) (standard for Title VII); Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30-31 (2012) (standard for NYCHRL); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (standard for age discrimination under the Age Discrimination in Employment Act (“ADEA”) and NYSHRL).
The parties do not dispute that Plaintiff has made a prima facie showing for prongs one and two. Def. Memo at 3; Pl. Opp. at 2. Instead, Defendant argues that Plaintiff has failed to show that she suffered any adverse employment action and failed to put forth evidence of discriminatory animus under prongs three and four. Def. Memo at 3, 8. By contrast, Plaintiff contends that Plaintiff's claims of hostile work environment and constructive discharge are adverse employment actions. Pl. Opp. at 25. Plaintiff further argues that there is a material dispute of fact as to whether unequal breaks constitute adverse employment action. Id. at 6. Finally, Plaintiff argues that she sufficiently alleged discriminatory animus. Pl. Opp. at 11.
A. Adverse Employment Action
1. Hostile Work Environment
a. Title VII and NYSHRL
To prevail on a claim of hostile work environment under Title VII, a plaintiff must show “(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [her] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotations marks and citation omitted).