Cobian v. New York City

Full title: FRANCES COBIAN, Plaintiff, v. NEW YORK CITY, ADMINISTRATION FOR CHILDREN'S…

Court: United States District Court, S.D. New York

Date published: Dec 6, 2000

99 Civ. 10533 (KMW) (AJP) (S.D.N.Y. Dec. 6, 2000)

Opinion

99 Civ. 10533 (KMW) (AJP).

December 6, 2000.

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Frances Cobian brings this action under Title VII, the Americans with Disabilities Act ("ADA"), Sections 1981, 1983 and 1985 and state law, claiming that defendants (1) discriminated against her by not reasonably accommodating her disabilities, (2) discriminated against her by taking adverse employment actions against her because she is Hispanic, and (3) took adverse employment actions against her in retaliation for her (i) prior (1995) federal lawsuit, (ii) filing an EEOC charge, and (iii) speaking out against health and safety hazards at the Administration for Children's Services ("ACS"). Cobian also claims that ACS and the New York State Family Court improperly revoked her brother's custody of his child in retaliation for Cobian's 1995 lawsuit. Defendants have moved for summary judgment.

For the reasons set forth below, the Court recommends that defendants' motion for summary judgment be granted since: (1) Cobian's Title VII and ADA claims relating to actions taken before December 27, 1997 (i.e., 300 days before her October 23, 1998 EEOC charge) are time-barred; (2) Cobian's claims regarding her niece's custody are barred by the domestic relations exception and the Rooker-Feldman doctrine; (3) Cobian has failed to establish a prima facie case of discrimination on the basis of race, national origin or disability; and (4) Cobian has failed to establish a prima facie case of retaliation.

FACTS

Cobian's Prior Lawsuit

In January 1995, Cobian had instituted a federal ADA lawsuit against the City, the City's Human Resources Administration ("HRA"), the City's Child Welfare Association ("CWA"), and the commissioners of HRA and CWA. (See Cobian v. City of New York, 95 Civ. 0166, Dkt. Nos. 1, 11; Ex. D:¹ Am. Compl. ¶ 18; Schragin Aff. ¶ 15; Defs. 56.1 Stmt. ¶ 26.) See also Cobian v. City of New York, 95 Civ. 0166, 1996 WL 583385 (S.D.N.Y. Oct. 10, 1996). On January 31, 1997, the parties to that lawsuit entered a Stipulation of Settlement and Discontinuance which was so ordered by the Court on February 3, 1997. (Ex. M: Stip. Order; Cobian v. City of New York, 95 Civ. 0166, Dkt. No. 30; see also Defs. 56.1 Stmt. ¶ 27; Schragin Aff. ¶ 16; Ex. D: Am. Compl. ¶ 19.)

1 References to lettered exhibits are to the exhibits attached to the 5/10/00 Declaration of Assistant Corporation Counsel Howard Schragin. References to numbered exhibits or "Cobian Ex." are to the exhibits accompanying Cobian's opposition papers.

Cobian's Tenure at OCACM

On September 22, 1997, Cobian returned to work from an extended medical leave (November 21, 1994 to September 19, 1997) and was assigned a Supervisor I position in the Office of Contract Agency Case Management ("OCACM"), a program area within ACS's Division of Foster Care and Preventive Services. (Ex. I: Cobian Dep. at 42-43; Ex. B at 393-98: Affidavit of Morris Heney to the EEOC ("Heney EEOC Aff.") ¶ 3; Ex. G: 9/25/97 Newly Assigned Employee Form; Defs. 56.1 Stmt. ¶ 15.) At the time, OCACM was located at 119 West 31st Street in Manhattan. (See, e.g., Ex. G: 9/25/97 Newly Assigned Employee Form; Ex. I: Cobian Dep. at 34, 42-43.)

Cobian was assigned to a specific team of caseworkers and was supervised by John Ford. (Ex. B at 393: Heney EEOC Aff. ¶ 3; Ex. I: Cobian Dep. at 43; Defs. 56.1 Stmt. ¶ 16; see also Cobian Ex.: Ford Dep. at 4.) Ford gave Cobian an overall job performance rating of "good" for October 6, 1997 to January 1, 1998. (See Ex. 6: Performance Evaluation, 10/6/97-1/31/98; see also Ford Dep. at 7-8.) Ford testified that he was not aware of Cobian violating any of her job responsibilities while she was under his supervision. (Ford Dep. at 7.) In August 1998, Ford provided Cobian with a letter of recommendation for graduate school in which he described Cobian as "an asset to our agency." (See Exs. 7-8: Ford Letters of Recommendation; Ford Dep. at 8-9, 10-11.)

In September or October 1997, Cobian applied for promotion to a Supervisor II position but was never interviewed despite her previous experience as a Supervisor II in the "kinship office." (Cobian Dep. at 72-77; see Defs. 56.1 Stmt. ¶ 24.) Cobian contends that the defendants' failure to grant her an interview was a result of discrimination and retaliation. (See Ex. D: Am. Cplt. ¶ 35; see also Cobian Br. at 34-35.) According to Cobian, two of her Hispanic colleagues, Carmen Pena and Nelia Garcia, also applied for promotions at the time and were not granted interviews. (Cobian Dep. at 77; see also Cobian Ex.: Garcia Dep. at 3-4; Cobian Ex.: Pena Dep. at 3.) Cobian identified two individuals — Janet Derwood and a "Mr. Calabresi" — who were promoted to Supervisor II without previous Supervisor II experience. (Cobian Dep. at 74-75.)

Cobian was employed at OCACM from September 1997 until October 18, 1999 (when she injured her ankle and began a medical leave), although she was on medical leave from June 2, 1998 to August 18, 1998 and October 20, 1998 to April 30, 1999. (Ex. I: Cobian Dep. at 44; Defs. 56.1 Stmt. ¶¶ 15, 17, 20-21; Ex. B at 394-97: Heney EEOC Aff. ¶¶ 3-4, 13, 15; Ex. G.) During that period, she was reassigned "about four or five times" to different teams within OCACM, always upon returning from leave — a few times, upon returning from workers compensation medical leaves and in October 1998, according to Cobian, upon returning from an approved vacation. (Cobian Dep. at 48, 61; Cobian Br. at 30.) From March or April 1999 to July 1999, Cobian remained in her position as Supervisor I and received her salary as such, but she was not assigned to any particular team and had "no place to sit," "no telephone" and "no work responsibilities," but was required to report to the OCACM's Director's secretary that she was present and ready for work. (Cobian Dep. at 62-63, 65; Defs. 56.1 Stmt. ¶ 22; see also Ex. F: Heney Dep. at 12, 35; Ex. H: Lacayo Dep. at 3-5; Cobian Ex.: Hart Dep. at 7.) Cobian alleges that she sought work from several people but that at least three people told her that they were scared to be seen with her for fear of retaliation. (Cobian Dep. at 62-65.) When she finally was assigned to a team, she was performing out-of-title work, i.e., she was "doing work as a clerk but [she] was being paid as a supervisor." (Cobian Dep. at 71.)

Cobian contends that her reassignment upon return from vacation and the period of time she spent without an assignment were the result of discrimination and retaliation. (Cobian Br. at 30.) In support of her claim concerning her reassignment, she points to the testimony of her colleague Pam Lacayo that two African-Americans — Delilah Thomas who was on medical leave for 2-4 months, and "another lady Frances" who had an accident and was out for an unspecified period of time — were able to return to their former positions. (Ex. H: Lacayo Dep. at 13-14.) In support of her claim regarding her lack of an assignment, Cobian points to Lacayo's testimony that "[w]hen Delilah got back from her disability she didn't have a desk either so they got her a desk. In the same week. There [were] other people that came back from disability, like that other 'Frances,' she didn't have a place to sit and they ended up getting her a seat and a desk . . . ." (See Cobian Br. at 4-5; Ex. H: Lacayo Dep. at 28.)

According to Heney, the reason for Cobian's lack of assignment was that none of the other managers wanted to work with Cobian because she was uncooperative. (Ex. F: Heney Dep. at 12, 34; see also Defs. 56.1 Stmt. ¶ 23.) Heney testified that he did not inform Cobian of the reason she did not have an assignment because he "did not want to hurt [her] feelings" and instead "just tried to negotiate with the managers to have [her] work for them and it took some time." (Heney Dep. at 34; see also Defs. 56.1 Stmt. ¶ 23.)

Cobian's Redeployment from ACS to HRA

On November 10, 1998, ACS announced the creation of two new competitive class Civil Service titles in the child welfare field: Child Protective Specialist and Child Welfare Specialist. (Defs. 56.1 Stmt. ¶ 5; Ex. L: ACS 11/10/98 Announcement of New Title Series.)

By letter dated April 15, 1999, Cobian was notified that her application for the new title of Child Welfare Specialist Supervisor I had been denied and that, as soon as practicable, she would be redeployed to another position in the same competitive title (Supervisor I) with ACS, HRA or another City agency. (Ex. C: 4/15/99 Scopetta Letter; see Defs. 56.1 Stmt. ¶ 8.) By letter dated July 1, 1999, ACS Commissioner Nicholas Scopetta notified Cobian that "after conducting a review of the decision rejecting your application to the new title series, [ACS has] concluded that the original decision will stand." (Ex. C: 7/1/99 Scopetta Letter; see also Defs. 56.1 Stmt. ¶ 9.)

According to Cobian, the decision to redeploy her was a product of discrimination and retaliation. (Cobian Br. at 37-38.) She alleges that it was her understanding that the managers "just choose whoever they wanted to choose to redeploy." (Ex. I: Cobian Dep. at 85-86.) When asked what her basis for this understanding was, Cobian said "it was a rumor in the office" and that "the same rumors or the same understanding" were shared at a union meeting. (Cobian Dep. at 86.)

Pam Lacayo, who claims she was in the room when the decision to not recommend Cobian to the new title series was made, testified that managers Virginia Harigan, Cathy Mays, Barbara Harper and Morris Heney were involved in the decisionmaking process. (Ex. H: Lacayo Dep. at 6-8, 19-20.) According to Lacayo, there were no criteria set for deciding whom to redeploy; "[i]t was just a whole bunch of papers lying around, everyone's names and well you know, that form that you had to fill out and they just started mentioning names and they would say yes or no or why and then . . . the clerical staff that was in there too also got to mention names and those were put in the bunch of redeployment." (Lacayo Dep. at 8.) Lacayo asserts that "because Delilah is African American she wasn't redeployed and [Cobian] was." (Lacayo Dep. at 26.)

According to Heney, the decision to not recommend Cobian to the new title series and to redeploy her was based on Cobian's "time on leave, cooperation, compliance reports, lateness and absences." (Ex. F: Heney Dep. at 7-8; see also Ex. G at p. 1:1/29/99 Heney Memorandum; Defs. 56.1 Stmt. ¶ 10.)

On August 2, 1999, Cobian was transferred from OCACM of ACS to the Office of Domestic Violence and Emergency Intervention Services in HRA, at 180 Water Street. (Ex. C: 7/19/99 Transfer Letter; Defs. 56.1 Stmt. ¶ 11.) On August 3, 1999, instead of reporting to HRA, Cobian showed up at ACS's main office at 150 William Street and was escorted out of the building by the police. (Ex. F: Heney Dep. at 5-6, 31; Defs. 56.1 Stmt. ¶ 12; Ex. D: Am. Compl. ¶¶ 56, 59, 94.)

On October 18, 1999, Cobian injured her ankle and has been out on medical leave since that time. (Ex. I: Cobian Dep. at 27, 44.)

Cobian testified that she was aware of only three disabled OCACM employees and that all three were redeployed. (Ex. I: Cobian Dep. at 91.) In addition, Cobian claims that both prior to and after her redeployment, defendants "hired and transferred in employees who . . . either were of a different race, had no qualifications and no experience in OCACM and/or had less years of service with Defendants in comparison to Plaintiff." (Cobian Br. at 36-37, 38.) On May 17, 2000, Heney testified at his deposition that in the last six months there had been promotions at OCACM, but no promotions of Hispanics. (Cobian Ex.: Heney Dep. at 45.) But two of Cobian's witnesses, Nelia Garcia and Carmen Pena, both of whom are Hispanic, were not redeployed by ACS. (Ex. H: Lacayo Dep. at 27; Defs. 56.1 Stmt. ¶ 13.)

Cobian's Request that Defendants Accommodate Her Alleged Disabilities

Cobian claims that her placement in OCACM's Manhattan office violated the ADA because it was difficult for her to travel to midtown Manhattan due to her knee and back conditions and because there were health and safety hazards at OCACM. (Ex. I: Cobian Dep. at 33-34.) When asked to specify the health hazards she believed were present at the office, and their relation to her disability, Cobian testified that:

There was asbestos. There was ventilation problems. There were excess boxes in the walkway. There were no fire drills. There was a lot of fire hazards with the amount of boxes and cases, they were all over the floors. There was about 200 people, 200 people on one floor and only one bathroom stall. There were several people that were falling on the job because of the floor being slippery or chemicals on the floor, or whatever.

Q. Now, while these may have been health hazards in your mind, what did these have to do with your back and your knee?

A. The boxes prevented me from having a safe walkway, not only me but other co-workers. The cases would be on the floor, I was not provided with file cabinets so therefore I had to bend down a lot and pick up. At one point I even fell and — trying to get cases for my area.

(Cobian Dep. at 34-35.)

In December 1997 and again in February 1998, Cobian tripped and injured herself on the job. (See Ex. 37:12/17/97 Witness Statement of Accident; Ex. 5:3/4/98 Supervisor's Report of Injury on 2/23/98; Ex. 27: 2/25/98 Workmen's Compensation Report; Ex. D: Am. Compl. ¶ 34.)²

2 The witness to Cobian's 12/17/97 accident writes in her statement, "I was walking down the hallway on the 3rd floor and I saw Mrs. Frances [Cobian] slip and falling towards the cabinets. I took her by her arm and hold her so she couldn't fall on floor." (Ex. 37.) The Supervisor's Report of Injury, signed by John Ford, states that on 2/23/98, "Supervisor Ms. Cobian was gathering requested case records for a special project review. When she reached for a case her chair gave way and she ended up on the floor." (Ex. 5.)

Cobian complained about her placement and working conditions to OCACM site director Robert Pearlman, telling Pearlman that getting to 31st Street was a "traveling hardship" and that the boxes on the floor were preventing her from performing her job duties because she was not able to walk safely in her area. (Ex. I: Cobian Dep. at 36.) Cobian requested that she be placed in the Bronx, given file cabinets, and that she be seated in an area with a window for ventilation. (Cobian Dep. at 35, 38.)

Cobian claims that Pearlman told her that Michael Schady, Director of Recruitment, Placement and Employee Relations in ACS's Office of Personnel Services, told him "to treat [Cobian] different." (Cobian Dep. at 38; see Ex. D: Am. Compl. ¶ 24.) According to Cobian, she subsequently complained to Schady who "more or less told [her] the same thing, that Mr. Pearlman had already said that I have no choice that I just better be glad I have a job." (Cobian Dep. at 39.) At some point, Cobian also complained to Heney that her placement constituted a traveling hardship and that she wanted a window for ventilation. (Ex. B at 395: Heney EEOC Aff. ¶¶ 6-7).³ In addition to complaining to Pearlman, Schady and Heney, Cobian also claims that she "organized and signed petitions against unfair labor practice and violations of Health and Safety hazard[s] on the job that affected workers and the public." (Cobian Br. at 18.) In support of this allegation, she points to an undated petition to the union containing 48 signatures, including her own. (See Cobian Br. at 18; Ex. 19: Union Petition.)⁴ In addition, by letter dated April 1, 1998, Joy Simon, the attorney who represented Cobian in her 1995 federal lawsuit, wrote a letter to the Corporation Counsel's Office complaining of the "deplorable" conditions at OCACM, claiming that "the dangerous working conditions at the OCACM site on West 31st Street has resulted in Ms. Cobian's suffering to [sic, two] employment-related accidents which have exacerbated the physical disabilities she suffered in the past." (See Ex. 2: 4/1/98 Simon Letter.)⁵

3 Cobian also submitted a memo to Heney on October 14, 1998, complaining about, among other things, the unsafe working conditions at OCACM:

I am again requesting reasonable accommodation and would like to know why I was reassigned to another team (90C) after returning from approved vacation leave.

. . .

I have been advised by the Case Managers and Supervisor of team 90C that they have a caseload of over 100 cases per Case Manager, most of the Case Managers have no file cabinets and or space to place their cases (violation of confidentiality and security). The work area of the Sup I in 90C is the most cluttered area (the entire area is a fire and safety hazard).

(Ex. 24.)

4 That petition reads as follows:

UNITED WE STAND DIVIDED WE FALL, SPEAK UP NOW OR FOREVER HOLD YOUR PEACE . . . . THE UNION IS AS STRONG AS WE MAKE IT. DON'T COMPLAIN TAKE ACTION TODAY, NOW . . . . LET US ORGANIZED [sic] OURSELVES FOR SECURITY, HEALTH AND SAFETY.

TO: TONY BASILLIO, LOCAL 371

We, the undersigned, do hereby request that the nomination meeting, which was held on Friday, May 10, 1998, be revoked. . . . [W]e are in trying times and this past year we were not justifiably represented whereas, there remain Civil Service, Employment, Labor, Health Safety violations. More importantly, OUR JOBS ARE AT RISK, ASBESTOS IN THIS OFFICE STILL EXISTS, UNSANITARY INSUFFICIENT BATHROOMS AND WE HAVE NO ONE REPRESENTING OUR BEST INTEREST AND WELFARE.

VOTE FOR REPRESENTATIVES WHO WILL REPRESENT THE WORKERS NOT MANAGEMENT . . .

(Ex. 19, emphasis in original.)

5 That letter states in relevant part as follows:

[T]he dangerous working conditions at the OCACM site on West 31st Street has [sic] resulted in Ms. Cobian's suffering to [sic] employment-related accidents which have exacerbated the physical disabilities she suffered in the past. On December 12, 1997, and again on February 23, 1998, Ms. Cobian was caused to trip and fall in or about her third floor work area. She has advised me on numerous occasions that the conditions are, indeed, deplorable with files and papers stacked up everywhere and impeding movement of all the workers; that the asbestos condition on the premises has caused staff-wide headaches and other respiratory ailments and that the air quality is, plainly, unhealthy. . . .

As you know, Ms. Cobian was ultimately accommodated by restoring her to an inside Supervisory I position due to her physical disability. However, the working conditions at the OCACM offices are filled with hidden traps and other violations, to be sure, almost like an obstacle course. This condition has proven to be to the detriment of Ms. Cobian.

We therefore expect that immediate attention be paid to resolve these issues in an expeditious and professional manner. We anticipate hearing from you promptly.

(Ex. 2 at 2.)

According to Schady, there were very few non-field Supervisor I positions available in the Bronx (Cobian had requested not to do field work) and Cobian was not qualified for these few positions because she did not possess the requisite experience and training, in part because she had missed so much time at work due to her worker's compensation and other leaves. (Ex. B at 342-45: Schady EEOC Aff. ¶¶ 6-8; Defs. 56.1 Stmt. ¶¶ 37-41.)

ACS had procedures for employees to submit "Reasonable Accommodation Request" forms to their supervisors, who would then forward the forms to an ACS EEO officer to determine whether the accommodation could reasonably be granted. (See Defs. 56.1 Stmt. ¶ 34; Ex. B at 344: Schady EEOC Aff. ¶¶ 9-10; Ex. B at 356-73: ACS EEOC Position Statement: ACS EEO Policy Section II(B): Reasonable Accommodation Procedure). It is undisputed that Cobian never submitted any "Reasonable Accommodation Request" forms. (Defs. 56.1 Stmt. ¶ 35; Ex. B at 344-45: Schady EEOC Aff. ¶¶ 9, 12.) Nor did Cobian provide any medical documentation to ACS showing a need for any specific accommodation. (Defs. 56.1 Stmt. ¶ 36.) Defendants have submitted "Introduction of Newly Assigned Employee" forms dated 9/25/97 and 5/13/99 indicating that Cobian's physician had approved her return to work for "full duty" following her medical leaves ending 9/19/97 and 4/30/99 respectively (see Ex. G at 2-3), as well as doctor's notes dated 8/17/98 and 4/14/99 stating that Cobian could return to work and making no mention of any restrictions (see Ex. B at 392, 401).

Family Court Proceedings

June 22, 1999, the Family Court of the State of New York, The Matter of Erbin Cobian v. Yvette Ross, Leopoldo Cobian, ACS-Bronx, Docket No. V1524/97, ordered that legal custody of Tameka Ross-Cobian be granted to Erbin Cobian (paternal uncle) subject to visitation rights of the father, Leopoldo Cobian, and the maternal aunt, Rochelle Jackson. (Ex. J: Family Court Order; Defs. 56.1 Stmt. ¶ 28.) Cobian contends that the revocation of her brother's custody of his child was in retaliation for Cobian's 1995 lawsuit. (See Cobian Br. at 5; Ex. D: Am. Compl. ¶¶ 64-93.)

Procedural History

On October 23, 1998, Cobian filed a charge of discrimination with the EEOC alleging discrimination on the basis of race, national origin and disability, and retaliation. (Ex. A: Cobian's EEOC Charge; Defs. 56.1 Stmt. ¶ 1; Ex. D: Am. Compl. ¶ 16.) On August 2, 1999, ACS submitted a formal response to Cobian's EEOC charge of discrimination. (See Ex. B: ACS EEOC Position Statement.) On October 14, 1999, Cobian instituted the present action. (See Dkt. No. 1: Compl.; see also Dkt. No. 11:2/24/00 Am. Compl.) On May 10, 2000, defendants moved for summary judgment after the conclusion of discovery. (See Dkt. Nos. 21, 22.) On June 12, 2000, Cobian's response included a 73 page memorandum of law and a large binder of exhibits. (See Dkt. No. 25.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).⁶

6 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).⁷ The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.⁸

7 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *3; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 352; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

8 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986).⁹ Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.¹⁰

9 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.

10 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (At summary judgment, "[t]he time has come . . . 'to put up or shut up'"); Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹¹ The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987).¹² "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.¹³

11 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

12 Accord, e.g., Austin v. Ford Models, Inc., 2000 WL 175296 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Carbonell v. Goord, 2000 WL 760751 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

13 Accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987).¹⁴ To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.¹⁵ While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).¹⁶

14 Accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

15 Accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

16 See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Carbonell v. Goord, 2000 WL 760751 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹⁷ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224.¹⁸ "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. . . . There must either be a lack of evidence in support of the plaintiff's position . . . or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998).¹⁹ Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 107 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995).²⁰ In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *7 (2d Cir. Nov. 8, 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, '[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination."); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").²¹ Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41.

17 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

18 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

19 Accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354.

20 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Engelmann v. National Broad. Co., 94 Civ. 5616, 1996 WL 76107 at *7 (S.D.N Y Feb. 22, 1996).

21 See also, e.g. Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

II. COBIAN'S CLAIMS WITH RESPECT TO HER NIECE'S CUSTODY ARE BARRED UNDER BOTH THE ROOKER-FELDMAN DOCTRINE AND THE DOMESTIC RELATIONS EXCEPTION TO FEDERAL JURISDICTION

A. The Domestic Relations Exception to Federal Jurisdiction

In Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206 (1992), the Supreme Court reaffirmed the domestic relations exception to federal court jurisdiction, holding that this exception "divests the federal courts of power to issue divorce, alimony and child custody decrees." Id. at 703, 112 S.Ct. at 2215. The domestic relations exception applies to diversity jurisdiction, see, e.g., id., as well as federal question jurisdiction, see, e.g., Mitchell-Angell v. Cronin, No. 95-7937, 101 F.3d 108 (table), 1996 WL 107300 at *2 (2d Cir. March 8, 1996), cert. denied, 519 U.S. 897, 117 S.Ct. 244 (1996); Ellis v. Little Flower Children's Servs., No. 99-CV-0503, 2000 WL 516887 at *4-5 (E.D.N.Y. March 21, 2000) (section 1983). As the Second Circuit has explained:

While the domestic relation exception itself is narrow, it applies generally to issues relating to the custody of minors. District courts in this Circuit have held that the exception includes civil rights actions directed at challenging the results of domestic relations proceedings. In addition, this Court has stated that federal courts have discretion to abstain from exercising jurisdiction over issues "'on the verge' of being matrimonial in nature" as long as full and fair adjudication is available in state courts.

Mitchell-Angell v. Cronin, 1996 WL 107300 at *2 (citations omitted).

In the instant case, Cobian's claims relating to the custody of her niece are either within the domestic relations exception or on "the verge of being matrimonial in nature." See, e.g., id. (claim that defendants, including the Child Welfare Administration, engaged in malicious prosecution and abuse of process as part of conspiracy to deprive plaintiff of children's companionship and affections fell within domestic relations exception or were on verge of being matrimonial in nature); Ellis v. Little Flower Children's Servs., 2000 WL 516887 at *4-5 (plaintiff's challenge to factual conclusions of Family Court with respect to efforts of social service agency to promote plaintiff's relationship with children fell within domestic relations exception); Hernandez v. United States Family Court of Bronx County, 96 Civ. 0035, 1996 WL 529044 at *3-4 (S.D.N Y Sept. 18, 1996) (aunt's suit seeking custody of her nieces and nephews and alleging that defendants violated her constitutional rights fell within domestic relations exception), aff'd mem., 107 F.3d 2 (2d Cir. 1997). Accordingly, the Court recommends that Cobian's claims regarding her niece's custody should be dismissed for lack of federal jurisdiction.

B. The Rooker-Feldman Doctrine

This Court also lacks jurisdiction of Cobian's claims regarding her niece's custody pursuant to the Rooker-Feldman doctrine, which prohibits federal district courts from reviewing final state court decisions arising out of judicial proceedings absent a federal statute (such as 28 U.S.C. § 2254 governing habeas corpus) authorizing such review. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303, 1317 (1983) (federal district courts lack jurisdiction "over challenges to state court decisions . . . arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional"); Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-16, 44 S.Ct. 149, 150 (1923); see, e.g., Saint-Fleur v. City of New York, 99 Civ. 10433, 2000 WL 280328 at *6 (S.D.N.Y. March 14, 2000) (Peck, M.J.) (citing cases).

As the Second Circuit has explained: "The Rooker-Feldman doctrine . . . bars federal courts from considering claims that are 'inextricably intertwined' with a prior state court determination." Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir. 1999); see, e.g., Garry v. Geils, 82 F.3d 1362, 1364-70 (7th Cir. 1996) (district court lacked jurisdiction over claim that defendants' condemnation action was act of political retaliation because claim was "inextricably intertwined" with state court judgment); Johnson v. Collins, 58 F. Supp.2d 890, 896-97, 899-900 (N.D.Ill. 1999) (claim that employees of Illinois Department of Children and Family Services retaliated against plaintiff during state court proceedings depriving him of custody of his children barred by Rooker-Feldman doctrine); Saint-Fleur v. City of New York, 2000 WL 280328 at *4 (dismissing challenge to Family Court termination of plaintiff's custody of his children).²²

22 See also, e.g., Pollack v. Nash, 58 F. Supp.2d 294, 305 n. 3 (S.D.N.Y. 1999); Ackerman v. Doyle, 43 F. Supp.2d 265, 272-73 (E.D.N.Y. 1999); George v. Letren, 97 Civ. 5991, 1998 WL 684857 at *3 n. 5 (S.D.N.Y. Sept. 30, 1998) (district court lacked jurisdiction over action challenging perceived errors in paternity and child support actions); Pal v. Garvey, 98 Civ. 4900, 1998 WL 427677 at *1-2 (S.D.N.Y. July 29, 1998) (no jurisdiction over action alleging constitutional errors in Family Court proceeding resulting in termination of plaintiff's visitation rights with granddaughter); Sanchez-Preston v. Judge Luria, No. CV-96-2440, 1996 WL 738140 at *3 (E.D.N.Y. Dec. 17, 1996) ("Because plaintiff's § 1983 claim arises out of an allegedly erroneous or unconstitutional judicial proceeding in the New York Family Court, no valid predicate for jurisdiction lies with this Court."); Brooks-Jones v. Jones, 916 F. Supp. 280, 281 (S.D.N.Y. 1996) ("A plaintiff . . . 'may not seek a reversal of a state court judgment simply by casting her complaint in the form of a civil rights action.'"); Fariello v. Campbell, 860 F. Supp. 54, 67 (E.D.N.Y. 1994) (no jurisdiction over § 1983 claim alleging constitutional error committed by Family Court in father's contempt proceeding); Rogers-Fink v. Cortland County Dep't of Social Servs., 855 F. Supp. 45, 47 (N.D.N.Y. 1994); Levine v. County of Westchester, 828 F. Supp. 238, 241 (S.D.N Y 1993) ("Plaintiff's claims [regarding child custody and sexual abuse proceedings] . . ., to the extent that they arise out of or are based upon allegedly incorrect or erroneous decisions in the state courts, are not properly within the jurisdiction of this Court."), aff'd mem., 22 F.3d 1090 (2d Cir. 1994).

Because Cobian's claims with respect to the City's handling of her brother's child custody case is "inextricably intertwined" with the New York Family Court custody order, Cobian's claims are barred by the Rooker-Feldman doctrine and should be dismissed.

III. COBIAN'S ADA AND TITLE VII CLAIMS ARISING FROM ACTS ALLEGEDLY PRIOR TO DECEMBER 27, 1997 ARE TIME-BARRED

Cobian's claims based upon events which occurred more than 300 days before she filed her discrimination charge with the EEOC on October 23, 1998, i.e., before December 27, 1997, are time-barred.

Both Title VII and the ADA, with certain exceptions not applicable here, require claimants to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment action. See, e.g., Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-29 (2d Cir. 1999); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days."); Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem., 201 F.3d 430 (2d Cir. 1999); 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117 (a).

Thus, Cobian's claims, whether under the ADA or Title VII, that she was subject to unlawful employment actions prior to December 27, 1997 are time-barred and should be dismissed. These include her claims with respect to her initial assignment to the Manhattan OCACM office in September 1997 and the defendants' failure to interview her for a Supervisor II position in Fall 1997.

IV. DEFENDANTS SHOULD BE GRANTED SUMMARY JUDGMENT ON COBIAN'S REMAINING CLAIMS²³

23 Because the parties have not separately addressed Cobian's New York State Human Rights Law claim, and because there is no difference in legal analysis on that claim on the facts of this case, the analysis in text is also applicable to Cobian's state law claims. See, e.g., Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 317 n. 2 (2d Cir. 1999) ("Employment discrimination claims brought under the NYSHRL are analyzed identically to claims under . . . Title VII."); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1752418 at *11 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.) (explaining difference in definition of disability under the ADA and the NYSHRL — but which has no effect on analysis of Cobian's case, since she has not presented evidence of any disability at all).
The Court also notes that the individual defendants are entitled to summary judgment on Cobian's Title VII and ADA claims, since such claims do not lie against supervisors. See, e.g., Tomka v. Seiler, 66 F.3d 1295, 1317 (2d Cir. 1995) (Title VII); Hallett v. New York State Dep't of Corr. Servs., 109 F. Supp.2d 190, 199-200 (S.D.N.Y. 2000) (Chin, D.J.) (ADA, citing cases); Fletcher v. Runyon, 980 F. Supp. 720, 722 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.) ("It is black letter law in this Circuit that individual supervisors are not 'employers' within the meaning of Title VII."); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *20 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *16 (S.D.N.Y. April 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

A. The McDonnell Douglas Burden-Shifting Analysis

The McDonnell Douglas Burden-Shifting Analysis The burden shifting analysis articulated in McDonnell Douglas v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973), and its progeny, for Title VII cases also applies to employment discrimination claims under both section 1983 and the ADA. E.g., Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) ("In analyzing a discriminatory discharge claim under the ADA, we apply the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green."); Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989) (Title VII McDonnell Douglas analysis applies to section 1983 claims); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *5 n. 20 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.) (ADA, citing cases); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 390 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.) (ADA, citing cases).

Under the McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.²⁴ Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).²⁵

24 See also, e.g., Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *3 (2d Cir. Nov. 8, 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

25 See also, e.g., Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

Once a plaintiff claiming employment discrimination has established a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310; 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.²⁶ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.²⁷

26 See also, e.g., Schnabel v. Abramson, 2000 WL 1676601 at *3; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 104 F.3d at 1335; Chambers v. TRM, 43 F.3d at 38; Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355-56; Lediju v. New York City Dep't of Sanitation, 173 F.R.D. at 114; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

27 See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335; Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36; accord, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356. "'It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quoting St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747); accord, e.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 3562.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g., Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.²⁸ "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 120 S.Ct. at 2106 (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10); accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *9.

28 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9; Weber v. Parfums Givenchy, Inc., 49 F. Supp. at 356.

Just last term, the Supreme Court clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center, . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing, 120 S.Ct. at 2108-09 (emphasis added citations omitted); accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *9-10.

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that an ADEA claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no ADEA defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 2000 WL 1676601 at *7 (emphasis added).²⁹

29 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Austin v. Ford Models, Inc., 2000 WL 1752966 at *10; Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and the District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.³⁰

30 E.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N Y Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D.Conn. 2000); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

The Court therefore turns to the McDonnell Douglas analysis of Cobian's claims and evidence.

B. Defendants Are Entitled to Summary Judgment on Cobian's ADA Claim Because There is No Evidence She is Disabled

The ADA defines a "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 478, 119 S.Ct. 2104, 2144 (1999).³¹

31 See also, e.g., Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563, 119 S.Ct. 2162, 2167 (1999); Schaefer v. State Ins. Fund, 207 F.3d 139, 142 (2d Cir. 2000); Heyman v. Queens Village, 198 F.3d at 72; Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253 (1999); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 150 (2d Cir. 1998); Ryan v. Grae Rybicki, 135 F.3d 867, 870 (2d Cir. 1998); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *5 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Williams v. Salvation Army, 108 F. Supp.2d 303, 311 (S.D.N.Y. 2000); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 390-91 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Johnson v. St. Clare's Hosp. Health Ctr., 96 Civ. 1425, 1998 WL 236235 at *7 (S.D.N.Y. May 13, 1998) (Mukasey, D.J. Peck, M.J.), aff'd mem., 175 F.3d 1008 (2d Cir. 1999).

The EEOC defines the term "substantially limits" as:

"(i) Unable to perform a major life activity that the average person in the general population can perform; or

"(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."

Heyman v. Queens Village, 198 F.3d at 72 (quoting 29 C.F.R. § 1630.2(j)(1)); see, e.g., Sutton v. United Air Lines, Inc., 527 U.S. at 480, 119 S.Ct. at 2145; Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999); 187 F.3d at 312; Colwell v. Suffolk County Police Dep't, 158 F.3d at 643; Ryan v. Grae Rybicki, 135 F.3d at 870; Williams v. Salvation Army, 108 F. Supp.2d at 312 n. 11.³²

32 The EEOC is primarily responsible for the enforcement of the ADA, and EEOC regulations are accorded great deference in interpreting the ADA. See, e.g., Heyman v. Queens Village, 198 F.3d at 72; Muller v. Costello, 187 F.3d at 312 n. 5 (2d Cir. 1999); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 150 n. 3; Ryan v. Grae Rybicki, 135 F.3d at 870; Johns-Davila v. City of New York, 2000 WL 1725418 at *5 n. 22.

EEOC regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).³³

33 See also, e.g., Sutton v. United Air Lines, Inc., 527 U.S. at 480, 119 S.Ct. at 2145; Heyman v. Queens Village, 198 F.3d at 73; Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 150; Ryan v. Grae Rybicki, 135 F.3d at 870; Johns-Davila v. City of New York, 2000 WL 1725418 at *6; Shields v. Robinson-Van Vuren Assoc., Inc., 98 Civ. 8785, 2000 WL 565191 at *4 (S.D.N Y May 8, 2000).

In determining whether an impairment substantially limits a major life activity, three factors are considered: "'(i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.'" Colwell v. Suffolk County Police Dep't, 158 F.3d at 643 (quoting 29 C.F.R. § 1630.20(j)(2)); see, e.g., Ryan v. Grae Rybicki, 135 F.3d at 570; Johns-Davila v. City of New York, 2000 WL 1725418 at *6; Muszak v. Sears, Roebuck Co., 63 F. Supp.2d 292, 299 (W.D.N Y 1999); Kirkendall v. United Parcel Serv. Inc., 964 F. Supp. 106, 109-10 (W.D.N.Y. 1997); Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703 (S.D.N.Y. 1997).

Not every physical or mental impairment is an ADA disability, because not every physical or mental impairment substantially limits a major life activity. See, e.g., 29 C.F.R. Pt. 1630, App. (1998) ("Many impairments do not impact an individual's life to the degree that they constitute disabling impairments. An impairment rises to the level of disability if the impairment substantially limits one or more of the individual's major life activities."); Colwell v. Suffolk County Police Dep't, 158 F.3d at 641 ("[A] plaintiff who showed that he had an impairment and that the impairment affected a major life activity would nonetheless be ineligible if the limitation of the major life activity was not substantial."); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d at 151; Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995) ("not every impairment that affect[s] an individual's major life activities is a substantially limiting impairment"); Ryan v. Grae Rybicki, 135 F.3d at 870 ("Although almost any impairment may, of course, in some way affect a major life activity, the ADA clearly does not consider every impaired person to be disabled. Thus, in assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities."); Johns-Davila v. City of New York, 2000 WL 1725418 at *6; Williams v. Salvation Army, 108 F. Supp.2d at 311; Douglas v. Victor Capital Group, 21 F. Supp.2d at 390-91 ( cases cited therein).

Cobian has never told the Court, much less presented any evidence, how she is "disabled" under the ADA. While the record indicates that Cobian has knee, ankle and back problems (see, e.g., Ex. I: Cobian Dep. at 27, 35), there is no evidence as to the effect those conditions have, if any, on Cobian's activities. While it is also true that Cobian received extensive medical leaves of absence (e.g., Defs. 56.1 Stmt. ¶¶ 15, 17), she stated that they were the result of injuries (see, e.g., Cobian Dep. at 27, 45) and her doctors cleared her to return to work without restriction. (Ex. G at 2-3; Ex. B at 392, 401.) While working is a major life activity,³⁴ Cobian has not presented any evidence that she suffered from any disability that restricted her from working.

34 See 29 C.F.R. § 1630.2(i) ("major life activity" defined as including "working"); see also, e.g., Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 78-80 (2d Cir. 2000) (holding that working is a major life activity); Johns-Davila v. City of New York, 2000 WL 1725418 and *7 (same).

While all employees would like a "safer" workplace, there is no evidence that Cobian's complaints about the conditions of her office — asbestos, boxes all over the place, etc. (see pages 8-9 above) — even if true, affected Cobian more than the average worker, or so severely as to render her "disabled" as to working as required by the ADA, or indeed disabled under the broader NYSHRL definition. See, e.g., Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *11 n. 27 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.) (discussing different definitions of disabled under ADA and NYSHRL, citing cases).

Thus, since Cobian has not shown that she was "disabled," defendants are entitled to summary judgment on her ADA claim.

C. Defendants Are Entitled to Summary Judgment on Cobian's Title VII Claim Because Cobian Has Failed to Establish a Prima Facie Case

In order to establish a prima facie case of disparate treatment discrimination in violation of Title VII (or the ADA), a plaintiff must show that: (1) she is a member of a protected class; (2) she satisfactorily performed the duties of her position; (3) she was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2106 (2000); Schnabel v. Abramson, No. 99-9385, 2000 WL 1676601 at *3 (2d Cir. Nov. 8, 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Tarshis v. Riese Org., 211 F.3d at 35; Carlton v. Mystic Transport., Inc., 202 F.3d at 134; Austin v. Ford Models, Inc., 149 F.3d at 148, 152 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998).³⁵

35 See also, e.g., Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Raskin v. Wyatt Co., 125 F.3d 55, 63-64 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *11 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Aponte v. Citibank, N.A., 92 Civ. 4948, 1994 WL 172399 at *2 (S.D.N.Y. May 5, 1994) (Wood, D.J.).

In order to establish a prima facie case of discrimination for failure to promote, a plaintiff must show that: (1) she belongs to a protected class; (2) she applied for a position for which she was qualified; (3) she was rejected despite her qualifications; and (4) the defendant continued to seek applications from other persons with the same qualifications. E.g., Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 6, 101 S.Ct. 1089, 1094 n. 6 (1981) (citing McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824); Mauro v. Southern New England Telecomms., Inc., 208 F.3d 384, 386 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000); Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998); Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *6 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997).

Finally, "[i]n order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995); accord, e.g., Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992).³⁶

36 See also, e.g., Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 419 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem., 201 F.3d 430 (2d Cir. 1999); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N Y Jan. 23, 1997) (Peck, M.J.) (citing cases); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *12 n. 10 (S.D.N Y April 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113 (S.D.N.Y. June 2, 1997) (Leisure, D.J. Peck, M.J.); Burrell v. City Univ., 894 F. Supp. 750, 759-60 (S.D.N.Y. 1995).

"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 2000 WL 1676601 at *3.³⁷ Nonetheless, Cobian has not met even the minimal requirements for establishing a prima facie case of discrimination or retaliation.

37 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Raskin v. Wyatt Co., 125 F.3d at 64; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 32; Fisher v. Vassar College, 114 F.3d at 1335; Austin v. Ford Models, Inc., 2000 WL 1752966 at *11; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.

1. Failure to Promote in September or October 1997

As discussed in Point III above, Cobian's Title VII (and ADA) claims with respect to defendants' failure to promote her in September-October 1997 are time-barred.

To the extent, however, that Cobian challenges the defendants' failure to promote her under sections 1981, 1983 and 1985, that claim is not time-barred. See, e.g., Jones v. Long Island R.R., No. 98-7793, 173 F.3d 844 (table), 1999 WL 245862 at *1 (2d Cir. April 19, 1999) ("plaintiff's [employment discrimination] claims under §§ 1981 and 1983 are subject to a three year statute of limitations"); Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir.) (applying CPLR § 214(5)'s three year limitations period to § 1981 employment discrimination claim), cert. denied, 498 U.S. 869, 111 S.Ct. 186 (1990); Yoonessi v. SUNY, 862 F. Supp. 1005, 1015 (W.D.N.Y. 1994) (plaintiff's employment discrimination claims under §§ 1981, 1983 and 1985 "are governed by the state statute applicable to personal injury claims, which is three years in New York under CPLR § 214(5)."); Szarejko v. Great Neck School District, 795 F. Supp. 81, 83 (E.D.N.Y. 1992) (applying three year statute of limitations found in N.Y. CPLR § 214(5) to § 1983 employment discrimination claim).

As noted at page 37 above, in order to establish a prima facie case of discrimination based on an employer's failure to promote, a plaintiff must establish that she was qualified for the position she was denied. Cobian has failed to establish a prima facie case since she has not come forward with any evidence that she was qualified for the Supervisor II positions for which she applied. This Court has no way of determining whether her previous Supervisor II experience in another office (see, e.g., Cobian Dep. at 76) is relevant, as the record is silent as to the nature of the Supervisor II position that Cobian sought and the nature of her previous position. See, e.g., Ricks v. Conde Nast Publ's, Inc. 92 F. Supp.2d 338, 345-46 (S.D.N.Y. 2000) ("With respect to the second prong of the McDonnell test, [plaintiff] must offer some evidence from which a reasonable fact-finder could conclude that she was qualified for her position."); Mark v. Mount Sinai Hosp., 85 F. Supp.2d 252, 261 (S.D.N.Y. 2000) (granting defendants summary judgment where plaintiff "failed to offer more than conclusory allegations to show that she was qualified for the position"); Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 378 (S.D.N.Y. 1999) (granting defendants summary judgment on failure to promote claim where plaintiff offered only conclusory statement that her experience within the company gave her ability to perform position). Defendants should be granted summary judgment on Cobian's failure to promote claim.

2. Reassignment Upon Returning From Vacation

As to Cobian's claim regarding her reassignment upon return from vacation in October 1998, Cobian has failed to establish a prima facie case of discrimination because she has failed to show (or even allege) that her reassignment caused a materially adverse change in the terms or conditions of employment so as to constitute a Title VII "adverse employment action."

"Evidence of a transfer alone is insufficient to make out a case of discrimination." Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 426 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem., 201 F.3d 430 (2d Cir. 1999); see, e.g., Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000) (affirming summary judgment for defendant where "[a]ppellant has not produced evidence to show that the transfer was to an assignment that was materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement"); Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999) ("To constitute an adverse employment action, a transfer must be accompanied by a negative change in the terms and conditions of employment . . . [Plaintiff] 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."); Garber v. New York City Police Dep't, No. 97-9191, 159 F.3d 1346 (table), 1998 WL 514222 at *4 (2d Cir. June 12, 1998) ("We agree that '[o]bviously a purely 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. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do either.' . . . Plaintiff, conceding that his change in position has not threatened his salary or benefits, attempts to rest his assertion that the transfer constituted an adverse employment action only on his unhappiness at being removed from a position he 'cherished.' It is not enough. In the circumstances here presented, we are unable to find that plaintiff's transfer constituted a materially adverse change in the terms and conditions of employment.") (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996) (Posner, C.J.)); Lambert v. Genesee Hosp., 10 F.3d 46, 58 (2d Cir. 1993) ("The district court also properly granted summary judgment for the defendants on plaintiffs' Title VII . . . claims of discrimination in the transfer of employees to the 360 and 385 presses, since the plaintiffs failed to produce any evidence to support an inference of discriminatory motive in the assignment of employees to the various printer positions."), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612 (1994).³⁸

38 See also, e.g., Gronne v. Apple Bank for Savs., No. 98-CV-6091, 2000 WL 298914 at *5 (E.D.N.Y. Feb. 14, 2000) ("a plaintiff's purely subjective feelings about the events and circumstances surrounding the allegedly adverse employment action [a purely lateral transfer] do not control. Otherwise, 'every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'"); Patrolmen's Benevolent Ass'n v. City of New York, 74 F. Supp.2d 321, 325 (S.D.N.Y. 1999) ("The key inquiry regarding involuntary transfers is whether the transfer constitutes a 'negative employment action tantamount to a demotion.'"); Little v. New York, 96 Civ. 5132, 1998 WL 306545 at *5-6 (E.D.N.Y. June 8, 1998) ("The realities of the workplace dictate that employees do not always have the option to work in the location they desire. Employees must often go where the employer determines they are needed most. . . ." Mere "speculat[ion] as to the reasons for [plaintiff's] transfer" does "not allow for an inference of discrimination to be drawn"), aff'd mem., 173 F.3d 845 (2d Cir. 1999); Mishk v. Destefano, 5 F. Supp.2d 194, 202 (S.D.N.Y. 1998) ("Plaintiff's . . . transfer from [one] Unit to [another] Unit does not satisfy the adverse employment action standard in the absence of any allegation or evidence that the new position was somehow inferior to plaintiff's previous position."); Cooper v. New York State Dep't of Human Rights, 986 F. Supp. 825, 828 (S.D.N.Y. 1997) ("the mere fact that an employee has been transferred or that his job responsibilities have changed is not sufficient in itself to show an adverse change in working conditions").
Moreover, even assuming Cobian's reassignment materially affected the terms and conditions of her employment, Cobian failed to show that she was reassigned in circumstances giving rise to an inference of discrimination. While she has identified two African-Americans, Delilah Thomas and "another lady Frances," who were able to get their old positions back upon returning from leave, the record is devoid of evidence by which to determine whether those individuals were similarly situated to Cobian or whether the circumstances of their return was similar (e.g., whether their old position was still vacant on their return). See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (to raise inference of discrimination by showing that she was subjected to disparate treatment, "the plaintiff must show she was 'similarly situated in all material respects' to the individuals with whom she seeks to compare herself"); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999).

3. Lack of Assignment

Cobian has also failed to establish a prima facie case with respect to her lack of an assignment for several months in 1999, because she has come forward with no evidence, other than conclusory allegations, that her race, national origin, disability or participation in protected activities contributed to her lack of assignment, i.e., she has failed to establish that her lack of assignment occurred under circumstances giving rise to an inference of discrimination or retaliation. While Cobian claims that three people told her they were afraid to be seen with her during that period (see Cobian Dep. at 62-65), such statements are inadmissible hearsay and, in any event, Cobian provides no evidence as to the basis for their alleged fear.

Standing alone, the lapse of more than four months between Cobian's filing of her EEOC charge in October 1998 and her lack of assignment starting, at the very earliest, sometime in March 1999, is insufficient evidence of a causal connection. See, e.g., Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) ("the four month time lag between [plaintiff's] participation in protected activity and his termination by itself would not be sufficient to justify an inference of causation") (cited by Second Circuit with approval in Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999)); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (fact that plaintiff filed EEOC charge and was issued disciplinary letter four months later does not, by itself, raise inference that filing was reason for the adverse action); Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986) ("The mere fact that [plaintiff] was discharged four months after filing a discrimination claim is insufficient to support an inference of retaliation."); James v. Newsweek, 96 Civ. 0393, 1999 WL 796173 at *15 (S.D.N.Y. Sept. 30, 1999) (no causation where "there was at least a four-month gap between the protected activity and the adverse actions"), aff'd mem., 213 F.3d 626 (2d Cir.), cert. denied, 121 S.Ct. 303 (2000).³⁹ Similarly, the fact that Cobian has identified two African-Americans who did not have a place to sit upon returning from leaves and then were given a place to sit within a short period of time (see Cobian Br. at 4-5; Ex. H: Lacayo Dep. at 6) is insufficient to defeat summary judgment in the absence of any information by which to determine whether those employees were similarly situated to Cobian. See, e.g., cases cited in footnote 38 above.

39 A fortiori, to the extent Cobian may be attempting to claim she was not given an assignment in 1999 in retaliation for her 1995 federal lawsuit which was settled on January 31, 1997, over two years before her lack of assignment, that claim also should be dismissed. See, e.g., Morris v. Lindau, 196 F.3d at 113 ("since two years elapsed between [plaintiff's participation in protected activity] and his discharge, no inference of causation is justified").
Insofar as Cobian may be attempting to claim that her lack of assignment (or, for that matter, any other adverse employment action) was in retaliation for her speaking out about health and safety issues at ACS, the record gives no indication of the time-period in which she allegedly spoke out; thus, this Court has no way of determining whether any of the defendants' actions followed closely on the heels of Cobian's speaking out on health and safety issues.

4. Redeployment

Cobian has failed to establish that defendants' decision to not recommend her to the new title series and to redeploy her was the product of discrimination or retaliation, because she has come forward with no evidence or circumstances giving rise to an inference of discrimination.

First, while Cobian claims that prior to and after her redeployment, defendants "hired or transferred in employees who . . . either were of a different race, had no qualifications and no experience in OCACM and/or had less years of service with Defendants in comparison to Plaintiff" (Cobian Br. at 36-37, 38), Cobian has not provided any identifying information about those individuals. Her naked, conclusory assertion that defendants hired less qualified individuals outside Cobian's protected class is insufficient to defeat summary judgment. See, e.g., Bickerstaff v. Vassar College, 196 F.3d 435, 451-52 (2d Cir. 1999) (restating principle that to defeat summary judgment, plaintiffs' evidence "must be based upon 'concrete particulars,' not conclusory allegations"), cert. denied, 120 S.Ct. 2688 (2000); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (disregarding as conclusory plaintiff's "representation in her affidavit that she applied for summer jobs in 1996 and 1997 and was not hired although 'another student, who had less experience and education was hired back' in 1996. . . . Although, as a rule, statements made by the party opposing a motion for summary judgment must be accepted as true for the purpose of ruling on that motion, some statements are so conclusory as to come within an exception to that rule. . . . [Plaintiff's] statement here is of just that conclusory sort."); Pidek v. Xerox Corp., No. 95-9245, 104 F.3d 350 (table), 1996 WL 537210 at *2 (2d Cir. 1996) ("Pidek's conclusory allegation that Xerox hired recent graduates during the year prior to the November 1981 reduction in force cannot help him defeat a summary judgment motion. Pidek submitted no evidence of the number of such graduates hired, their ages, their qualifications, or their positions in BSG. He has also offered no statistical evidence or anecdotal evidence showing age discrimination at Xerox or BSG."); Reeher v. Baker Material Handling Corp., Nos. 92-3244-47, 996 F.2d 1216 (table), 1993 WL 220559 at *4 (6th Cir. 1993) ("Conclusory statements that younger employees were hired to replace [plaintiffs] are not sufficient to identify genuine issues of material fact precluding summary judgment. In the absence of corroborating material, such as personnel records or deposition testimony available during discovery, the [Magistrate Judge] properly concluded that plaintiffs failed to meet their initial burden of establishing a prima facie case."); Blanke v. Rochester Tel. Corp., 36 F. Supp.2d 589, 595 (W.D.N.Y. 1999) (summary judgment for defendants on male employee's claim that female employees were given preferential treatment where plaintiff failed to identify the female employees in question); Fondo v. Memorial Hosp., 86 Civ. 7448, 1988 WL 142469 at *6 (S.D.N.Y. 1988) (summary judgment for defendants on claim that defendants discriminated against plaintiff by hiring applicants less qualified than plaintiff where plaintiff did not identify those applicants), aff'd, 880 F.2d 1318 (2d Cir. 1989).

Cobian's claim that there were promotions at OCACM in the period following Cobian's redeployment but, allegedly, no promotions of Hispanics (see Cobian Ex.: Heney Dep. at 45) is similarly insufficient to defeat summary judgment in the absence of more specific information regarding the number of Hispanics, if any, who applied for promotions and the identity and qualifications of those individuals who did receive promotions. See, e.g., Coser v. Moore, 739 F.2d 746, 752 (2d Cir. 1984) (statistical disparities regarding race or gender not probative in absence of evidence as to relevant pool of qualified applicants); Wado v. Xerox Corp., 991 F. Supp. 174, 195 (W.D.N Y 1998) (granting defendant summary judgment where, inter alia, plaintiff "testified that positions that became open in the Model Shop area 'were filled by mostly female' employees . . ., but he has not provided any evidence indicating how many men and women applied for those positions, the candidates' qualifications, or any other evidence suggestive of sex discrimination"), aff'd, 196 F.3d 358 (2d Cir. 1999); see also cases cited above.

Finally, in the absence of concrete particulars to support Lacayo's conclusory statement that "because Delilah is African-American she wasn't redeployed and [Cobian] was," that statement may be disregarded. See, e.g., Bickerstaff v. Vassar College, 196 F.3d at 451-52 ("the district court properly disregarded [plaintiff's witness']s allegations of race animus as conclusory" where the witness "fail[ed] to offer a single act, statement, or admission by any . . . decision maker . . . to support his allegation that [plaintiff] was denied [a] promotion . . . because of her race"); see also, e.g., Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("even in the discrimination context, a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment"); Smith v. American Express Co., 853 F.2d 151, 155 (2d Cir. 1988) (summary judgment for employer because plaintiff's "affidavit and memorandum reveal nothing that would convince a factfinder that the reasons given by [his employer] for promoting [another employee] rather than [plaintiff] were a pretext for discrimination. Rather his allegations are conclusory and unsupported by evidence of any weight; they are insufficient to satisfy the requirements under Rule 56(e)."); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e). . . . To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment."), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985).⁴⁰

40 See also, e.g., Terry v. United States, 98 Civ. 8249, 2000 WL 204522 at *5 (S.D.N.Y. Feb. 18, 2000) ("conclusory allegations do not constitute evidence of discrimination in the selection process"); Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 423 (S.D.N.Y.) (Wood, D.J. Peck, M.J.) (conclusory allegations insufficient to support hostile work environment claim), aff'd mem., 201 F.3d 430 (2d Cir. 1999); Little v. New York, 96 Civ. 5132, 1998 WL 306545 at *6 (E.D.N.Y. June 8, 1998) ("It is well settled that a plaintiff's speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn. . . . Accordingly, a Title VII plaintiff cannot 'defeat a motion for summary judgment by offering purely conclusory allegations of discrimination.'"), aff'd mem., 173 F.3d 845 (2d Cir. 1999); Robinson v. Metro-North Commuter R.R., 94 Civ. 7374, 95 Civ. 8594, 1998 WL 17742 at *8 (S.D.N.Y. Jan. 16, 1998) (dismissing plaintiffs' claims of hostile working environment for failure to "make any specific allegations or provide any particularized admissible evidence to support [the] general claim"), aff'd mem., 201 F.3d 440 (2d Cir. 1999); Jugueta v. Perry, 95 Civ. 10303, 1997 WL 742535 at *6 (S.D.N.Y. Dec. 1, 1997) ("speculation does not constitute evidence sufficient to defeat a summary judgment motion"), aff'd, 191 F.3d 283 (2d Cir. 1999), cert. denied, 120 S.Ct. 1959 (2000); Richardson v. Newburgh Enlarged City Sch. Dist., 984 F. Supp. 735, 744 (S.D.N.Y. 1997) ("[T]he supposed mountain of racial resentment more closely resembles a molehill of non-racial, and possibly justifiable, annoyance. . . . Simply because (1) some [co-workers] had complaints about [plaintiff], and (2) [plaintiff] is African-American, does not impel the conclusion that (3) those [co-workers] had misgivings about [plaintiff] because she is African-American. This is the type of groundless speculation that summary judgment is designed to root out."); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 114 (S.D.N.Y. 1997) (Peck, M.J.) ("Plaintiff's speculation and generalities (e.g., discrimination is self-evident), . . . is insufficient even to state a prima facie case. . . ."); Burrell v. Bentsen, 91 Civ. 2654, 1993 WL 535076 at *10 (S.D.N.Y. Dec. 21, 1993) ("plaintiff cannot satisfy his burden of proof by offers of speculative beliefs and gut feelings"), aff'd mem., 50 F.3d 3 (2d Cir. 1995); Ulrich v. Exxon Co. USA, 824 F. Supp. 677, 685-86 (S.D.Tex. 1993) ("A subjective belief of discrimination, however genuine, cannot alone be the basis for judicial relief. . . . [Plaintiff's] proffered summary judgment evidence consists exclusively of conclusory and speculative allegations of race discrimination which are unsupported by specific facts. In the court's view, this evidence is insufficient to support a prima facie case of employment discrimination or to raise a genuine issue of material fact.").

CONCLUSION

For the reasons set forth above, defendants' summary judgment motion should be granted in all respects.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).