Opinion
15-CV-2521 (ILG) (PK)
2021-09-27
Aida DOMENECH, Plaintiff, v. NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Defendant.
Jessenia Maldonado, Law Office of Yuriy Moshes, PC., New York, NY, Junou Odige, Law Office of Yuriy Moshes, P.C., Brooklyn, NY, for Plaintiff. Aliza Jordana Balog, Dominique F. Saint-Fort, Kristen Monet McIntosh, Jack Kevin Shaffer, New York City Law Department, Labor and Employment Law Division, New York, NY, for Defendant.
Jessenia Maldonado, Law Office of Yuriy Moshes, PC., New York, NY, Junou Odige, Law Office of Yuriy Moshes, P.C., Brooklyn, NY, for Plaintiff.
Aliza Jordana Balog, Dominique F. Saint-Fort, Kristen Monet McIntosh, Jack Kevin Shaffer, New York City Law Department, Labor and Employment Law Division, New York, NY, for Defendant.
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge:
Aida Domenech commenced this action against her employer, the New York City Employees’ Retirement System ("NYCERS"), alleging retaliation and religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). NYCERS has moved for summary judgment. For the reasons given below, NYCERS’ motion is GRANTED .
BACKGROUND
Unless otherwise noted, the following facts are taken from those that Plaintiff admits in her Response to Defendant's Rule 56.1 Statement of Undisputed Material Facts [ECF No. 43-1].
Plaintiff has been a NYCERS employee since January 11, 1988. She eventually became a manager in the Estimated Benefits Unit, which, in 2007, was within the Operations Division. In February 2007, Plaintiff complained to the New York City Department of Investigations that Greta John, who at that time was the second Deputy Director of the Operations Division and Plaintiff's supervisor, was discriminating against non-Black Caribbean employees by only promoting and giving raises to Black Caribbean employees. Plaintiff also mailed a copy of the complaint to Diane D'Alessandro, who was then the Executive Director of NYCERS.
In May 2007, Plaintiff received a performance evaluation. The exact date on which the evaluation was performed and given to Plaintiff is not known. The evaluation rated Plaintiff as "needs improvement" in the area of "properly anticipat[ing] and plan[ing] work unit operations to ensure that targeted production objectives are met." [ECF No. 41-7]. In support of this rating, the evaluation notes that
[d]uring this rating period, Ms. Domenech failed to properly anticipate and plan the work unit operations to ensure that the targeted production objectives were met. She ineffectively anticipated the changes to the unit operations based on workload and staffing changes. She failed to adjust work projects and resources to accomplish short term or unanticipated work needs.
Id. The evaluation further supports this finding in the general comments section, where it is explained that
[a]n employee within the Unit unexpectedly required a leave of absence for an unspecified period of time, of which Ms. Domenech failed to allocate her resources and make staff changes and adjustments to suit the unit's needs. This lack of planning resulted in work backlog and pressure to meet established deadlines in processing the unit's cases.
Id.
Aside from this one negative rating and comment, the evaluation is otherwise positive and rates Plaintiff's performance as "satisfactory" in all other areas. Id.
It appears that on May 27, 2007, Plaintiff objected to her performance evaluation; in response, Andrew Feneck, the Director of the Operations Division, met with the individual who completed the evaluation (Julet Barnett) and Greta John (Plaintiff's supervisor) to discuss the evaluation. Feneck wrote to Plaintiff on June 5, 2007, to say that the evaluation was being revised, with the one negative rating being changed to "satisfactory" and the comments regarding Plaintiff's lack of planning being struck. [ECF No. 41-8]. The overall achievement score was increased from a 63% to a 67%. [Id. ; ECF No. 41-9]. Feneck also noted in his June 5th letter that the evaluation had not been completed by Greta John as Plaintiff thought, but by Julet Barnett. On May 16, 2007, Feneck wrote a memorandum to the file to memorialize a meeting that he had with Plaintiff and others on May 10, 2007. In his memorandum, he wrote that Plaintiff requested additional resources to help her unit meet their June 30th deadline. Feneck recorded his contemporaneous sense that "[m]y own gut feeling on the backlog in Estimated Benefits is poor management/supervision by Aida. At this time I can't substantiate the gut feeling." [ECF No. 41-10].
On May 23, 2007, Feneck wrote a second memorandum to the file to memorialize a meeting that he had with Plaintiff and Betsy Rodriguez, another NYCERS employee, on May 16, 2007. [ECF No. 41-11]. The memorandum records that Plaintiff had requested the meeting, during which she complained about retaliation. The memorandum, in relevant part, reads as follows:
Aida made statements that she is being retaliated against because of her statements regarding employee morale at the breakfast meeting. First, she claims that her brother from TRS called to tell her that he heard what she said at the meeting. She was quite upset that the information was public. I said, once you make statements publicly you can't expect them to be contained. She proceeded to say that she heard from a source that Craig Thornton warned Mark (security guard) to stay away from Aida and the reason for this order was in retaliation of her statements at the breakfast. I tried to explain to her this was not an act of retaliation but instead a potential security problem. The security guards should to some extent keep a distance from the employees as not to compromise the security employee relationship. At this time I wasn't aware that Craig had previously spoken with Mark on the same issue.
I stated to Aida, you think this is Greta's doing don't you. She didn't answer but that verified my suspicion. I continued on to say (in theme) you think Greta has nothing better to do but find ways to annoy and harass you.
Id. The memorandum also recounts that during the meeting there was discussion of a Tier reinstatement case. Feneck wrote that "[i]t came to my attention today May 17, 2007, that she [Plaintiff] misrepresented me and claimed that I said she did not have to work the case." Id.
On August 22, 2007, Feneck wrote a memorandum to Felita Ramsami, NYCERS’ Director of Human Resources, to memorialize a meeting that he and Linda Chiariello, NYCERS’ Deputy Executive Director, had with Plaintiff on August 21, 2007. [ECF No. 41-12]. During the meeting, Plaintiff was informed that she would be transferred to the Active Accounts unit of the Service Division, effective August 27, 2007. Feneck explains in his memorandum that the reason for the transfer was Plaintiff's ineffective management and failure to be a team player, particularly with respect to "her attitude towards the management of Operations" which was "not acceptable and counter productive to the Estimated Benefits unit and the Operations Division as a whole." The memorandum documents a specific instance that occurred on August 6, 2007. Id. In the Active Accounts unit, Plaintiff reported to Michelle Gaddy; Ingrid Stephen was the Director of the Service Division.
On May 7, 2008, Plaintiff filed a complaint with the New York State Division of Human Rights ("SDHR") charging NYCERS with unlawful discriminatory and retaliatory practices. [ECF No. 41-14]. In the complaint, Plaintiff alleged, among other things, that Greta John "gave special privileges, better job opportunities, [and] easier work assignments to her most preferred group – black Caribbean friends ...." She further alleged that she and another NYCERS employee, Betsy Rodriguez, went to Feneck on May 10, 2007, "in reference to Ms. John's undesirable, discriminatory, and, abusive treatment." Rather than resolve the situation, though, Plaintiff says that on August 27, 2007, she was transferred out of her position and the division, and her "evaluation was purposely and unmerited [sic ] ‘downgraded,’ [her] $1,500 bonus and 4% merit increase was held back due to this, [she] was taken out of supervising employees, and [she] had [her] Regular day off ... taken away ...." Id.
In February 2009, NYCERS brought disciplinary charges against Plaintiff, accusing her of engaging in work-related misconduct. [ECF No. 41-4]. She was charged with misconduct, engaging in conduct tending to discredit the agency, failing to perform her duties properly and efficiently, failing to notify her supervisor that she could not carry out her assignments, and giving false statements. The charges stemmed from Plaintiff's treatment of certain files on which she worked while in the Active Accounts unit; the apparently improper treatment was detected by Plaintiff's then-supervisor, Michelle Gaddy. Following a hearing, on December 23, 2009, an administrative law judge ("ALJ") found that Plaintiff did misrepresent her work product. Given that the misconduct appeared to be an isolated instance of misconduct over an otherwise unblemished career, the ALJ rejected NYCERS’ request that Plaintiff be terminated and recommended instead that Plaintiff be suspended for 30 days. Id.
Notably, in his opinion, the ALJ addressed Plaintiff's argument that she had been transferred to the Active Accounts unit and then charged with misconduct as retaliation for her prior complaints. The ALJ rejected Plaintiff's argument, finding that she "failed to establish that the present charges were proffered against her because of her complaint to DOI. Instead. as discussed above, the record established that there is a separate and independent basis for the disciplinary action being taken." Id. Plaintiff appealed the ALJ's decision to the New York City Civil Service Commission, where she again argued, inter alia , that the charges had been brought in retaliation for the complaints she filed.
In January 2010, Plaintiff and NYCERS settled Plaintiff's SDHR complaint. [ECF No. 41-16]. As part of the settlement, NYCERS
agree[d] to adopt the findings of ALJ Rodriguez which found the Complainant [Plaintiff] guilty of three (3) out of four (4) charges and recommended a thirty (30) day suspension. The Respondent [NYCERS] agree[d] to return the Complainant to work from paid leave on Monday, January 11, 2010 to her civil service title as an Associate Retirement Benefits Examiner III, performing duties commensurate with that title. The Respondent reserves the right to place the Complainant in such position based upon the operational needs of the agency.
Id. Plaintiff agreed to withdraw the SDHR complaint and related EEOC complaint, and to release all other claims related to her employment that she had through the date of the settlement, January 6, 2010. Id.
Upon her return to work, NYCERS assigned Plaintiff to the Buy Back unit within the Service Division and gave her the title of Associate Retirement Benefits Examiner Level III. At that time, neither Andrew Feneck nor Greta John was in the Services Division, and thus was no longer supervising Plaintiff. Plaintiff now complains that, while in this position, she was not permitted to work any overtime while all other employees were. Defendant counters with the testimony of Ingrid Stephen, the Director of the Service Division, who said that Plaintiff was not permitted to work overtime because she earned a high salary but was performing entry level work with relatively low productivity; thus, permitting her to work overtime was not an efficient use of the limited overtime budget. Although Plaintiff contends that she complained to Ingrid Stephen about not being permitted to work overtime, there does not appear to be any record of a formal written complaint regarding this issue.
On November 26, 2010, the New York City Civil Service Commission upheld the ALJ's finding of guilt but modified the sanction to a 15-day suspension. [ECF No. 41-15].
In September 2011, NYCERS reorganized the Operations and Service Divisions, placing Andrew Feneck in charge of the Service Division. [ECF No. 41-21]. Although Feneck's assignment was only supposed to be temporary, he remained in that position until September 2014. Ingrid Stephen was assigned to lead the Operations Division, with Greta John as her deputy.
Plaintiff learned about the reorganization in August 2011 and spoke with Stephen about it. The parties do not agree on exactly what was said in that meeting. According to Plaintiff, during that meeting she learned that Stephen had suggested that Plaintiff be transferred to the Service Processing Unit. On August 18, 2011, Plaintiff sent an email to the NYCERS’ Human Resources Department to complain about her impending transfer, requesting to instead be left in the Buy Back unit. [ECF No. 41-23]. Ultimately, NYCERS’ Executive Director Diane D'Alessandro decided to transfer Plaintiff to the Service Processing Unit in the Service Division. The head of the Service Processing Unit was Hailey Vaughan, Greta John's first cousin. Plaintiff did not file any formal complaints about the transfer.
Around September 9, 2011, Plaintiff learned that her request had been denied and that she was to be transferred from the Buy Back unit to the Service Processing unit. [ECF No. 41-24]. The NYCERS reorganization and Plaintiff's transfer occurred on September 12, 2011, but because Plaintiff was out from September 9th through September 22nd, she did not begin working in the Service Processing unit September 23, 2011. Plaintiff maintained the same title and salary after the transfer. Although she contends that Hailey Vaughan closely monitored her movements, Plaintiff concedes that Vaughan always gave her satisfactory performance evaluations, never disciplined her, and only denied a verbal request for time off three or four times. Moreover, in February 2012, Vaughan agreed to permit Plaintiff to change her work hours in order to deal with a family issue. [ECF Nos. 41-27, 41-28].
While in the Service Processing unit, Plaintiff claims that she was again denied overtime work despite other employees being given the chance to do such work. No overtime was offered to any employees in the unit between November 2011 and March 2012. Outside of that time period, in 2011 and 2012, Vaughan offered overtime to three other employees with the same title as Plaintiff (Associate Retirement Benefits Examiners Level 3): Tak Yuen, Alan Paul, and Grazy Varughese. Yuen was one of the unit's highest producers and was working on two other special projects. Paul and Varughese were both supervisors within the Service Processing Unit. The parties disagree as to why Plaintiff was not initially offered the opportunity to perform overtime work, but agree that in March 2013, after a period in which Vaughan was able to review cases on which Plaintiff had worked, Plaintiff was offered overtime.
On October 5, 2011, Plaintiff filed a new complaint with the SDHR and the EEOC alleging discrimination based on religion and unlawful retaliation. A full hearing was held on Plaintiff's new SDHR complaint. On January 15, 2014, an ALJ issued a written opinion recommending that the SDHR find that Plaintiff had proven discrimination based on disability, creed, and in retaliation for the filing of a prior complaint. [ECF No. 43-6]. However, on May 30, 2014, a SDHR Commissioner ordered the record to be reopened and a new ALJ be assigned to issue a new recommendation; on August 27, 2014, a new ALJ issued a written opinion that recommended that Plaintiff's SDHR complaint be dismissed in its entirety. The SDHR adopted this new opinion in full, dismissing Plaintiff's complaint. [ECF No. 41-29]. Plaintiff did not appeal the SDHR's decision to the New York Supreme Court. On February 12, 2015, the EEOC adopted the SDHR's decision and dismissed Plaintiff's complaint. [ECF No. 41-30]. On June 7, 2013, Plaintiff filed a third complaint with the SDHR and EEOC alleging unlawful retaliation by "Upper Management" and "Human Resources." [ECF No. 41-31]. The specific act about which Plaintiff complained was the denial of overtime. On December 2, 2013, the SDHR dismissed Plaintiff's complaint, finding that there was no probable cause to believe that Defendant was engaging in unlawful discrimination. [ECF No. 41-32]. On February 7, 2014, the EEOC adopted the SDHR's decision and dismissed Plaintiff's complaint. [ECF No. 41-33].
Plaintiff commenced this action on April 17, 2015, asserting religious-discrimination and retaliation claims pursuant to Title VII and a disability-discrimination claim pursuant to the ADA. [ECF No. 1]. Specifically, Plaintiff alleges that she was (a) not permitted to work overtime after returning from her suspension, (b) transferred from the Buy Back unit to the Service Processing unit in September 2011, and (c) denied permission to take December 30, 2011 off. Plaintiff further alleges that Defendant did not immediately grant her request to change shifts in January 2012 because she filed a complaint of discrimination with the SDHR in May 2008.
On June 30, 2015, Defendant moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No. 10]. The Court granted in part and denied in part Defendant's motion: the Court dismissed Plaintiff's religious-discrimination claims and ADA claims with prejudice, but permitted her Title VII retaliation claim to survive except to the extent it is based on the retaliatory denial of overtime. Domenech v. New York City Employees’ Ret. Sys. , No. 15-CV-2521 (ILG)(PK), 2016 WL 2644892 (E.D.N.Y. May 9, 2016). The Court gave Plaintiff leave to replead her overtime-based retaliation claims, which she did on May 23, 2016, through an Amended Complaint. [ECF No. 25].
On August 18, 2017, Defendant moved for summary judgment, [ECF No. 41], the motion to which the Court now turns.
DISCUSSION
Standard of Review
The standard for the Court's review of a motion for summary judgment is well-established: "[s]ummary judgment is appropriate ‘only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.’ " Rivera v. Rochester Genesee Reg'l Transp. Auth. , 743 F.3d 11, 19 (2d Cir. 2014) (quoting McBride v. BIC Consumer Prods. Mfg. Co. , 583 F.3d 92, 96 (2d Cir. 2009) ). The burden is on the moving party to establish the absence of any material factual issues. Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "In evaluating such motions, the district court must resolve any doubts and ambiguities and draw all reasonable inferences in favor of the nonmoving party." Rasmy v. Marriott Int'l, Inc. , 952 F.3d 379, 386 (2d Cir. 2020).
Title VII Retaliation
As the Court explained in its ruling on Defendant's Motion to Dismiss, Title VII "forbids an employer from ‘discriminating against’ an employee because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge ... in’ a Title VII proceeding." Brown v. Cty. of Erie , 2013 WL 885993, at *3 (W.D.N.Y. Mar. 8, 2013) (quoting 42 U.S.C. § 2000e-3(a) ). "To establish a prima facie case of retaliation, an employee must show that (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action." Lore v. City of Syracuse , 670 F.3d 127, 157 (2d Cir. 2012). "The requirement of a materially adverse employment action reflects the principle that ‘Title VII does not protect an employee from all retaliation, but only retaliation that produces an injury or harm.’ " Rivera , 743 F.3d at 24-25 (quoting Tepperwien v. Entergy Nuclear Operations, Inc. , 663 F.3d 556, 569 (2d Cir. 2011) ). The Supreme Court has explained that the "[e]mployer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
"The McDonnell Douglas burden shifting analysis used in claims of discrimination in violation of Title VII also applies to retaliation claims brought pursuant to Title VII." Terry , 336 F.3d at 141. This means that "once a plaintiff has established a prima facie case, the burden shifts to the defendant, which is required to offer a legitimate, non-discriminatory rationale for its actions." Id. at 138. Then,
once the defendant has made a showing of a neutral reason for the complained of action, "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."
Id. (quoting Stern v. Trustees of Columbia Univ. in City of N.Y. , 131 F.3d 305, 312 (2d Cir. 1997) ).
Here, there is no dispute that Plaintiff engaged in a protected activity by filing a complaint concerning alleged discriminatory behavior, nor is there a dispute that the Defendant was aware of this activity. Thus, the Court begins with the third element of the prima facie case – a materially adverse action. Plaintiff contends that she suffered three types of adverse actions: religious discrimination resulting from her supervisor's refusal to permit her to take off on December 30, 2011; her involuntary transfer to the Service Processing unit in September 2011; and Defendant's refusal to permit her to work overtime. Am. Compl. at ¶ 126. The Court considers each of these three in turn. A. Denial of Religious Accommodation
The Court previously addressed Plaintiff's complaint regarding the purported instance of religious discrimination, dismissing the claim. Domenech , 2016 WL 2644892, at *4. The Amended Complaint does not include any new allegations relating to this purported instance of discrimination such that the Court should revise its decision. Compare Compl. at ¶ 50 with Am. Compl. at ¶ 92. Moreover, even if this allegation was sufficient to survive the motion to dismiss stage, it would not be sufficient to survive summary judgment. In order to make out a prima facie case of religious discrimination, a plaintiff "must show that ‘(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement.’ " Baker v. The Home Depot , 445 F.3d 541, 546 (2d Cir. 2006) (quoting Knight v. Conn. Dep't of Pub. Health , 275 F.3d 156, 167 (2d Cir. 2001) ). In this case, Plaintiff testified before the SDHR that she did not tell Hailey Vaughan – her then-supervisor – that her request to take off on December 30, 2011, was for religious reasons, and Plaintiff's September 23rd and 29th emails confirm this. [ECF Nos. 41-13 (Hr'g Tr. at 885:3-9), 41-26]. Thus, the evidence shows that Defendant had no reason to know that Plaintiff's request for time off on December 30, 2011, was for religious reasons, precluding Plaintiff's ability to satisfy the second element of the prima facie case for religious discrimination. For the same reason, Plaintiff's assertion that Defendant retaliated against her by "denying her religious accommodation request," Am. Compl. at ¶ 126, cannot withstand summary judgment.
B. Involuntary Transfer
"An internal transfer can be an adverse employment action if accompanied by a negative change in the terms and conditions of employment." Terry , 336 F.3d at 144 (quotations omitted). The Second Circuit has found a transfer to be an adverse employment action where the transfer resulted "in a change in responsibilities so significant as to constitute a setback to the plaintiff's career," "where the transfer effected a radical change in [the] nature of the plaintiff's work," and where the "transfer created a materially significant disadvantage with respect to the terms of plaintiff's employment." Kessler v. Westchester Cty. Dep't of Soc. Servs. , 461 F.3d 199, 206-07 (2d Cir. 2006) (collecting cases).
Here, Plaintiff has not alleged that her transfer to the Service Processing unit was accompanied by a negative change to her employment conditions or any of the other factors that the Second Circuit has previously found to constitute adverse action. Her salary and title remained the same, and there is no contention that the Buy Back unit was more prestigious than the Service Processing unit. Instead, Plaintiff alleges that "Andrew Feneck was transferring Plaintiff DOMENECH from one unit he supervised to another unit he supervised for the sole purpose of using Hailey Vaughan to continue his retaliation." Am. Compl. ¶ 75. There are several problems with this argument.
First, Feneck was to oversee both the Buy Back unit where Plaintiff was, and the Service Processing unit to which Plaintiff was going. Given this fact, if Feneck did want to retaliate against Plaintiff, no transfer should have been necessary unless there was some distinguishing feature between the supervisors of the two units such that only one could be used to effect Feneck's retaliation. Plaintiff does not offer any evidence on this point. Second, the only way in which this alleged retaliation was manifested was through the denial of overtime. However, Plaintiff admits that she was already being denied overtime in the Buy Back unit, so the transfer did not result in any material change that disadvantaged her. See Pl.’s Mem. of Law in Opp. to Def.’s Mot. for Summ. J. [ECF No. 42] ("Pl.’s Mem."), at 8, 13.
Third, despite Plaintiff's assertion that Hailey Vaughan was to be Feneck's tool through which he was to continue his retaliation, the facts to which Plaintiff admits show that Vaughan never treated Plaintiff improperly. Rather, Plaintiff concedes that Vaughan "did not approve all of the days plaintiff requested because she had given the other days to other employees," that "[w]hile [P]laintiff reported to Vaughan, [Plaintiff] received satisfactory performance evaluations," and that Plaintiff "has never been disciplined by Vaughan." Pl.’s Response to Def.’s R. 56.1 Statement of Undisputed Material Facts [ECF No. 43-1] ("56.1 Response"), at 17-18, 20. Vaughan also agreed to permit Plaintiff to change her schedule to accommodate a family need, and ultimately began to permit Plaintiff to work overtime in 2013. Id. at 20. And it is noteworthy that Plaintiff never filed a formal complaint against Vaughan for any form of discrimination or improper treatment. Id. In sum, Plaintiff has failed to make out a prima facie case that her transfer to the Service Process unit constituted an adverse employment action.
Even if Plaintiff was able to make out a prima facie case, the Defendant satisfies its burden at the second step of the McDonnell Douglas analysis by offering a "legitimate, non-discriminatory rationale for its actions." Terry , 336 F.3d at 138. Specifically, the Defendant explains that the "transfer arose through a company-wide restructuring, and was from a unit where she would have reported to someone about whom she previously had complained of discrimination, to a unit where she would report to someone for whom she had previously worked without apparent issue." Def.’s Mem. of Law in Support of its Mot. for Summ. J. [ECF No. 41-1] ("Def.’s Mem."), at 4; see also [ECF No. 41-21].
Moving to the final step of the McDonnell Douglas analysis, 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." Terry , 336 F.3d at 138. Plaintiff responds that Defendant's explanation makes no sense because both the Buy Back unit and Service Processing unit were to be under Feneck. However, Plaintiff's response undercuts her own argument: if the transfer were to enable Feneck to retaliate against her, given that Feneck was to become in charge of the Buy Back unit, why was a transfer necessary? Moreover, Plaintiff's argument ignores the fact that, because of her high salary, at least on paper she reported to the division director, rather than the unit supervisor. See [ECF No. 41-18]. Because of this, if Plaintiff remained in the Buy Back unit, she would need to report to Feneck. On the other hand, because after the reorganization Hailey Vaughan would be earning more money than Plaintiff, see [ECF No. 41-19], if Plaintiff were transferred to the Service Processing unit, she could report directly to the unit supervisor, avoiding any direct contact with Feneck.
The Court finds that Plaintiff's argument regarding her involuntary transfer from the Buy Back unit to the Service Processing unit in September 2011 cannot withstand summary judgment.
C. Denial of Overtime
The denial of overtime may serve as a materially adverse action for the establishment of a discrimination claim under Title VII. See Pucino v. Verizon Wireless Commc'ns, Inc. , 618 F.3d 112, 119 (2d Cir. 2010) ; Porter v. Potter , 366 F. App'x 195, 197 (2d Cir. 2010) ; Duzant v. Elec. Boat Corp. , 81 F. App'x 370, 371-72 (2d Cir. 2003). The Court previously dismissed Plaintiff's overtime-based retaliation claim on the ground that it could not determine from the face of the complaint whether that claim was timely. Domenech , 2016 WL 2644892, at *5. In response, Plaintiff re-pled her denial of overtime claim to include the specific dates on which she says that she was denied overtime and the identities of the other employees she contends were similarly situated but who were offered overtime. Am. Compl. at ¶¶ 35-71, 78-81, 93, 95-99, 105-122. These new allegations are sufficient to establish that Plaintiff did suffer a materially adverse action.
Having shown a materially adverse action, Plaintiff must next show that there was a causal connection between the protected activity and the adverse action. Lore , 670 F.3d at 157. The Court addressed this point in its decision on Defendant's Motion to Dismiss and found that, based on Plaintiff's allegations, a causal connection could be inferred. Domenech , 2016 WL 2644892, at *4. The Court therefore finds that Plaintiff has established a prima facie case, satisfying her burden at the first step of the McDonnell Douglas analysis.
Moving to the second step of McDonnell Douglas , the Defendant satisfies its burden to offer a legitimate, non-discriminatory rationale for the fact that Plaintiff was not permitted to work overtime by explaining that Plaintiff was not given overtime because it did not make financial sense to do so. As a new employee – first in the Buy Back unit and then in the Service Processing unit – Plaintiff was performing lower-level work; however, because of her seniority within NYCERS, she was the highest or one of the highest paid employees in each unit. See Def.’s Mem. at 8-9; [ECF Nos. 41-17 (Dep. Tr. at 59:19-60-8, 69:14-70-7), 41-18]. Given the limited overtime budget, it was not an efficient use of resources to permit Plaintiff to work overtime when a lower-salaried employee could also be used.
Defendant further argues that Plaintiff was not similarly situated to the three other employees in the Service Processing unit who had the same title as Plaintiff but who were awarded overtime. Def.’s Mem. at 9. Plaintiff concedes this point, admitting that two of the three individuals were supervisors within the unit while the third was one of the highest producers in terms of checking cases, and that two had more than a decade of experience in the unit. 56.1 Response at 19.
With Defendant's satisfaction of its burden at the second stage of the McDonnell Douglas analysis, the burden shifts back to Plaintiff to offer evidence that would "be sufficient to permit a rational finder of fact to infer that the defendant's [decision to not permit Plaintiff to work overtime] was more likely than not based in whole or in part on discrimination." Terry , 336 F.3d at 138. To satisfy her burden at this step, Plaintiff argues that Defendant's proffered justification is simply pretext, as shown by the shifting excuses that Defendant offers for why Plaintiff was denied overtime. Pl.’s Mem. at 16-22. "[A] defendant's inconsistent justifications for an employment action can be sufficient for a plaintiff to establish pretext." Ludwig v. Rochester Psychiatric Ctr. , 347 F. App'x 685, 686 (2d Cir. 2009).
First, with respect to her time in the Active Accounts unit, which ran from 2007 to January 2010, Plaintiff points to the apparent contradiction between the testimonies of Ingrid Stephen, who explained that Plaintiff was a manager and thus was not eligible for overtime, and Hailey Vaughan, who says at the time Plaintiff was transferred to the Active Accounts unit she was not acting as a manager. Pl.’s Mem. at 17. The evidence indicates that for this period of time, Plaintiff retained a managerial title but was not acting as a manager. See Am. Compl. at ¶ 29 (allegation that as part of the 2010 settlement with Defendant, Plaintiff agreed to give up her managerial title, thus indicating that she had a managerial title until that point in time); [ECF No. 41-4 (ALJ's opinion in which he stated that Plaintiff was not acting as a manager during her time in the Active Accounts unit)]. The apparent discrepancy between the testimonies of Stephen and Vaughan is therefore explainable.
Second, with respect to overtime in the Buy Back unit, Plaintiff argues that the Defendant shifts its reasoning to the fact that Plaintiff was the highest paid person in the unit and that her salary was over the collective bargaining agreement ("CBA") cap. With respect to the CBA cap argument, Plaintiff relies on a January 15, 2014 decision from an ALJ, but that decision was withdrawn and the evidence upon which it relied is not otherwise in the record. [ECF Nos. 41-29, 43-6]. The remaining argument is the one that Defendant now relies upon and for which Defendant provides evidence in support. That it is different from the reason Plaintiff was denied overtime in a different unit – wherein Plaintiff had a different relative position – does not automatically give rise to the conclusion that it is pretextual.
Finally, with respect to the Service Processing unit, Plaintiff argues that the Defendant's contention that Plaintiff was too inexperienced is not believable. Plaintiff cites to Hailey Vaughan's testimony that, first, Vaughan did not know whether Plaintiff had any prior relevant experience, and second, that Plaintiff's prior experience and knowledge would be useful. Pl.’s Mem. at 19-20. Plaintiff also points to the Defendant's memorandum of law in which it writes "the Service Processing Unit was selected for plaintiff because she had previously worked for the unit and its supervisor, Hailey Vaughan, in a similar capacity as in the Buy Back Unit, and, as such, she already had familiarity with her responsibilities in that unit." Id. at 20 (quoting Def.’s Mem. at 7).
It is true that Hailey Vaughan testified that she did not know if Plaintiff had prior experience checking service cases prior to being transferred to the Service Processing unit while also testifying that Plaintiff lacked checking experience. See [ECF No. 43-4 (64:12-19, 65:19-22)]. However, that a unit supervisor failed to ask Plaintiff whether she had certain prior experience and thus assumed she did not is not evidence of a retaliatory animus. Moreover, Plaintiff's citation to Hailey Vaughan's testimony regarding Plaintiff's prior experience being useful is misleading: Vaughan was discussing her attempt to give Plaintiff a special project – a project that Plaintiff refused to take. [ECF No. 43-4 (Dep. Tr. at 77:18-78:17)]. On the whole, Vaughan's testimony supports Defendant's position that it did not initially make financial sense to award Plaintiff overtime work while Plaintiff was only performing lower-level work, but that once Plaintiff could complete higher-level work, she could be and was awarded overtime. Id. (Dep. Tr. at 77:4-17). There is no evidence other than Plaintiff's own conclusory statements that Defendant's failure to provide her with overtime was for retaliatory purposes. Plaintiff has not sustained her burden of establishing that Defendant's rationale was pretext.
The Court therefore finds that Plaintiff's argument regarding denial of overtime cannot withstand summary judgment.
CONCLUSION
For the foregoing reasons, the Defendant's motion for summary judgment is GRANTED and this case is dismissed.
SO ORDERED.