Summary
granting summary judgment on failure to promote claim when plaintiff and the employee who was promoted had, prior to the promotion, "reported to different supervisors, worked in different divisions . . . had different job descriptions and responsibilities"
Summary of this case from Sackey v. City of New YorkOpinion
96-CV-3242 (ILG)
May 18, 2000
Richard J. Cardinale, Esq., Assistant Corporation Counsel The City of New York, New York, N.Y.
Charmaine M. Stewart, Esq., Law Offices of Charmaine Stewart Associates Rosedale, N.Y.
MEMORANDUM AND ORDER
Plaintiff Evelyn Lanzo ("Lanzo") has brought this action against the defendants, the City of New York ("City") and the Head Start Division ("Head Start") of the Human Resources Administration ("HRA"), pursuant to 42 U.S.C. § 1981 and 1983; Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. and the Equal Pay Act of 1963, 29 U.S.C. § 206 (d). Plaintiff, a City employee, alleges that she was discriminated against on the basis of her race (Hispanic) and national origin (Puerto Rican), resulting in her being demoted. Defendants now move, pursuant to Fed.R.Civ.P. § 56(b), for summary judgment. For the reasons stated herein, the motion is granted.
BACKGROUND
At the time of the events alleged in the Complaint, plaintiff was a civil service employee with Head Start, an early childhood intervention program established in 1965 by the federal government. Gonzalez Dec. ¶¶ 1-5. Defendant HRA is an agency of the City and is
Gonzalez Dec. ¶ — refers to the declaration of Richard F. Gonzalez, Assistant Deputy Commissioner for the New York City Administration for Children's Services in charge of its Head Start Division. The declaration was made on January 19, 2000 in support of defendants' motion for summary judgment.
governed by the New York City Charter. Compl. ¶ 5. Head Start was a division of HRA, but is now part of the Administration for Children's Services, a City agency created in 1996.
In June 1987, plaintiff interviewed for, and was successful in obtaining, the position of "Executive Assistant" to the Deputy Director of Program Management for Head Start ("Deputy Director"), who, at that time, was Hugh Baird. Gonzalez Dec. ¶ 5. Before taking the Executive Assistant position, plaintiff had held the permanent civil service rank of "Social Worker." Id. ¶ 6. The civil service title for the Executive Assistant position was Principal HRS. However, at the time Lanzo started her new position, this civil service title was about to be reclassified, and therefore plaintiff could not be given the appropriate title of Principal HRS. Baird Aff. ¶¶ 6-7. Plaintiff asserts that she commenced her duties as Executive Assistant without the appropriate title or compensation in good faith reliance that she would be appropriately compensated once the reclassification of her title was complete. Lanzo Aff.
In early 1998, the reclassification process was still pending. In order to move Lanzo closer to the level of compensation established for performing the functions of an Executive Assistant, Baird suggested that Lanzo temporarily accept the provisional title of Supervisor III. Baird Aff. ¶ 8. Based on the understanding that she would receive the proper civil service title and corresponding compensation as soon as the Principal HRS title was reclassified, Ms. Lanzo accepted the interim title of Supervisor III. Id. ¶ 9, Gonzalez ¶ 8.
In 1993, while Ms. Lanzo still held the interim title of Supervisor III, she was informed that an upcoming civil service examination would affect the status of her position.
When the City certified the promotional list of those individuals who had passed the civil service examination for the Supervisor III title, and who were thereby eligible for a permanent promotion to that title, plaintiffs name did not appear on the list. Gonzalez Dec. ¶ 9. Consequently, under Civil Service Law § 65(3), plaintiffs provisional appointment was terminated, and she was replaced by an employee from the Civil Service promotional list. Id. ¶ 10. Rather than return to a field social work position that would have been commensurate with her permanent Social Worker civil service title, plaintiff chose to continue in the job title of Executive Assistant, albeit at the lower title and pay of a Social Worker. Id. at 11.
Baird made efforts to have plaintiffs title changed to Associate Staff Analyst (ASA), the designated reclassification of Principal HRS, but these efforts were unsuccessful. Baird Aff. ¶ 12-14.
Plaintiff filed the present lawsuit in 1996, claiming that HRA denied her salary increases, failed to promote her, and deliberately delayed in processing her promotion papers due to a racial bias they have against individuals of Puerto Rican descent and Hispanic national origin. Compl. ¶¶ 13-16. To support this contention, plaintiff asserts that Jeanine Plummer is a Head Start employee, similarly situated to her, who did receive the salary increase denied to her. Pl. Mem. at 10.
A. Jeanine Plummer
In December 1991, Mr. Baird was appointed Acting Assistant Deputy Commissioner for Head Start ("Commissioner"), but he continued in his role as Deputy Director for Program for which plaintiff was his Executive Assistant. Gonzalez Dec. ¶¶ 13-14. Because there already were support staff in place for both of the positions assumed by Baird, he utilized the Program Management staff when performing Deputy Director duties and used the Commissioner's staff when performing his Commissioner duties.Id. ¶ 15.
In March 1993, Clennie Murphy was appointed Commissioner, replacing Hugh Baird. Id. ¶ 13. Murphy then assumed the day-to-day operation of the Head Start Division and required an Executive Assistant. Jeanine Plummer, a provisional Associate Staff Analyst ("ASA") who had been employed on the Commissioner's staff since 1990, applied, and was hired for the position. Id. ¶ 16; Plummer Dep. 17-18.
According to defendants, Plummer retained her ASA civil service rank while she was employed as Murphy's Executive Assistant. Murphy only worked three days per week and Plummer was required to assume Murphy's responsibilities when he was away and was also required to perform her Executive Assistant duties as well. Gonzalez Dec. ¶ 17-18; Plummer Dep. 18-19. To compensate Plummer for her expanded responsibilities, Murphy requested a 20% merit salary increase of $8,630 for her on December 26, 1993. The increase was granted because it fell within the acceptable salary range for an ASA. Id. Plaintiff disputes this assertion, claiming that Plummer did not perform any dual role. In support of this argument, plaintiff points to the deposition testimony of Clennie Murphy, which was taken in Baird v. City of New York, 96 Civ. 5876 (E.D.N.Y.). Pl. Mem. Ex. 6. As discussed below, even assuming plaintiffs version of events is correct, she was not "similarly situated" to Ms. Plummer for the purpose of her Title VII claim.
DISCUSSION
I. Summary Judgment Standard
Summary judgment under Rule 56 is proper "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." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proof on such motion. See United States v. All Funds, 832 F. Supp. 542, 550-51 (E.D.N.Y. 1993).
If the summary judgment movant satisfies its initial burden of production, the burden of proof shifts to the nonmovant who must demonstrate that a genuine issue of fact exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Id. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the "depositions, answers to interrogatories, and admission on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. Once the nonmovant has adduced evidence of a genuine issue of material fact, its "allegations [will be] taken as true, and [it] will receive the benefit of the doubt when [its] assertions conflict with those of the movant." Samuels v. Mockrv. et al., 77 F.3d 34, 36 (2d Cir. 1996).
In employment discrimination cases, courts are particularly cautious about granting summary judgment where intent is at issue. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, even in these cases a "plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id.
II. Equal Pay Act
Plaintiffs claim under the Equal Pay Act is based on the allegation that defendants failed to "accord plaintiff equal pay for work performed that was equal to the work performed by similarly situated Caucasian and African American employees." Compl. ¶¶ 53-54. The Equal Pay Act is only applicable to claims of gender discrimination and therefore is of no relevance to the present case. See Belgrave v. City of New York, 95 Civ. 1507, 1999 WL 692034 *24 (E.D.N.Y. Aug. 31, 1999); DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986), cert. denied, 484 U.S. 825 (1987).
III. Plaintiffs § 1981 and § 1983 Claims
In her complaint, plaintiff claims that because of her Puerto Rican ancestry, defendants denied her the right to make and enforce contracts under 42 U.S.C. § 1981, and that
Section 1981 provides in relevant part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." 42 U.S.C. § 1981 (a). The term "make and enforce contracts" as used in this section includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (b).
defendants denied her due process of law and discriminated against her in violation of 42 U.S.C. § 1983. Complaint at ¶¶ 42 49.
Section 1983 provides in relevant part that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . ." 42 U.S.C. § 1983.
In order to state a viable cause of action under both § 1981 and § 1983, plaintiff must allege that a municipal policy or practice existed which caused the violation of her constitutional rights. Monell v. Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It is insufficient to allege a "simple theory of respondeat superior." Hill v. New York City Bd. of Educ., 808 F. Supp. 141, 150 (1992) (citing Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978)).
"A municipal policy or practice may be established by reference to a formal rule or widely-practiced custom. It may, however, also be inferred from circumstantial proof, such as evidence that the municipality was deliberately indifferent to the need to train its employees as to proper conduct in situations that could implicate persons' constitutional rights." Sealy v. Fishkin, 96 Civ. 6303, 1998 WL 1021470 *2 (E.D.N.Y. Dec. 2, 1998); see also City of Canton v. Harris, 489 U.S. 378, 388-92 (1989); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). The mere allegation that a municipality failed to train its employees properly, unsubstantiated by any evidence, is insufficient to establish a municipal custom or policy. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).
Plaintiffs § 1983 claim against defendants is premised on the allegation that "[b]y demoting plaintiff in contravention of ACD/Head Start Policy Council guidelines, defendants, by their agents, servants and/or employees operating under the color of law . . ., violated plaintiffs Due Process Rights and unlawfully discriminated against plaintiff on the basis of plaintiffs race . . ." Compl. ¶ 49. Plaintiff § 1981 claim alleges that defendants' "policy and practice of discrimination" interfered with plaintiffs "right to make and enforce a contract of employment." Compl. ¶ 42.
Plaintiff has adduced no evidence that any discriminatory policy or practice existed beyond her conclusory allegations. Moreover, a § 1981 action must allege "that the defendants' acts were purposefully discriminatory . . ., and racially motivated." Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) (en banc) (citations omitted). Plaintiff has failed to provide any support for her bald assertions that the conduct of the defendants directed towards her was purposefully discriminatory or racially motivated. Accordingly, plaintiffs §§ 1981 and 1983 claims are dismissed.
IV. Title VI Claim
Plaintiff claims that defendants' act of "demoting her" from the civil service rank of Supervisor III to Social Worker amounted to an "illegal and intentional misuse of federal funds" in violation of Title VI. Compl. ¶ 39. This claim is without merit.
In order for a plaintiff to maintain a discrimination claim under Title VI, she must demonstrate that the defendant employer is "the recipient of federal funds aimed primarily at providing employment." Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981). Plaintiff herself admits that the primary purpose of federal Head Start funds is to provide early childhood development, and not to provide employment to individuals such as the plaintiff. Pl. Br. 22; Head Start Policy Documents Exs. 1 2. Therefore, plaintiff cannot maintain a Title VI claim.
Citing the decision in Caulfield v. Board of Education of the City of New York, 632 F.2d 999, 1005, (2d Cir. 1980), plaintiff argues that courts have allowed private actions under Title VI where employment discrimination necessarily causes discrimination against the primary beneficiaries of federal programs. In Caulfield, the Office for Civil Rights of the Department of Health, Education and Welfare had "specifically noted that its concern with [defendant's] discriminatory employment practices was motivated by the unfortunate effect that the practices exercise on minority schoolchildren." Id. Plaintiff has not alleged that defendants' conduct in this case has resulted in discrimination against the beneficiaries of the Head Starts program, as was the case in Caulfield, and therefore her Title VI claim has no basis in law.
V. Title VII
Under § 703(a) of Title VII, it is an "unlawful employment practice" for an
employer:
(1) . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin.42 U.S.C. § 2000e-2 (a)
A. Time Bar
Defendants assert that plaintiffs claims must be dismissed as they are time-barred. Discrimination claims under Title VII must ordinarily be filed with the EEOC within 180 days of the date on which the "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5 (e)(1);see 29 U.S.C. § 626 (d)(1). However, if the alleged discrimination took place in a state or locality that has its own antidiscrimination laws and an agency to enforce those laws, then the time period for filing claims with the EEOC is extended to 300 days. 42 U.S.C. § 2000e-5 (e)(1); 29 U.S.C. § 626 (d)(2), 633(b). In this case, the discrimination alleged took place in New York, which has both antidiscrimination laws and an antidiscrimination agency. The 300-day limit therefore applies. Timely filing is a prerequisite to the maintenance of an action in federal court. See Campbell v. Grayline Air Shuttle, 930 F. Supp. 794, 798 (E.D.N Y 1996) ("[a]s a condition precedent to bringing a Title VII action, a plaintiff must file a complaint with the [EEOC] within 300 days of the discriminatory act . . ."). Courts in this Circuit have denied claims that were not filed within 300 days of the discriminatory act alleged. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Carrasco v. New York City Off Track Betting Corp., 858 F. Supp. 28, 31-32 (S.D.N.Y. 1994).
Plaintiffs claims are based on employment actions which occurred between October 1987 and September 27, 1993. Compl. ¶ 11, 18. However, plaintiff did not file her administrative charge of discrimination with the EEOC until March 8, 1995, more than 300 days after the alleged discriminatory act took place. Def. Ex. B. Plaintiff claims that the 300-day statute of limitation was tolled because the discriminatory conduct was a "continuing violation" which existed from 1987 to 1995, when she filed her EEOC charge. According to plaintiff, she should not be penalized for attempting to "rectify the problem" rather than filing a charge.
Plaintiffs argument is not persuasive. The 300-day time period begins when the plaintiff receives notice of the employment decision at issue.See Delaware State College v. Ricks, 449 U.S. 250, 257-58 (1980);Campbell v. Grayline Air Shuttle, 930 F. Supp. 794, 799 (E.D.N.Y. 1996). The fact that a plaintiff subsequently engages in an extended grievance process does not change the date of accrual. Ricks 449 U.S. at 260-61.
Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone. Cook v. Pan Am. World Airways, Inc., 771 F.2d 635, 646 (2d Cir. 1985), cert. denied, 474 U.S. 1109, 106 S.Ct. 895, 88 L.Ed.2d 929 (1986). The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, Cook, 771 F.2d at 646, or discriminatory employment tests, Association Against Discrimination in Employment, Inc. v. Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981), cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation. Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 114 S.Ct. 1612 (1994). In this case, plaintiff has failed to submit evidence that defendants have a specific discriminatory policy or mechanism, either written or openly acknowledged, which is required in order for the doctrine to apply. Id. Accordingly, plaintiffs Title VII claims are time-barred.
However, even assuming arguendo that all the allegations with respect to plaintiffs claims are properly before this Court, viewing plaintiffs evidence in its most favorable light, there is no genuine issue of material fact because plaintiff has provided no evidence of discrimination.
B. Title VII Standard
Lanzo must first establish a prima facie case of unlawful discrimination by showing that (1) she is a member of a protected class (2) who was qualified for her position (3) who suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination. See McDonnell-Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shumway v. United Parcel Service. Inc., 118 F.3d 60, 63 (2d Cir. 1997). Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises and the burden then "shifts" to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997). Third, if the defendant articulates a nondiscriminatory reason for his actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must then show, without the benefit of any presumptions, that it is more likely than not that the employer's decision was motivated at least in part by a discriminatory reason. Because the defendant has at this point offered a nondiscriminatory reason for its actions, the plaintiff must show that the proffered reason is in reality a pretext for unlawful discrimination. See Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1997). The parties do not dispute that Lanzo is a member of a protected class.
C. Prima Facie Case
Plaintiff cannot make out a prima facie case because she cannot demonstrate that her failure to secure a Supervisor III position occurred under circumstances giving rise to an inference of discrimination. See Carter v. City of New York, 95 Civ. 3560, 1998 WL 760332 *5 (E.D.N.Y. Sept. 9, 1998). Plaintiff argues that an inference of discrimination arises out of the fact that Jeanine Plummer, an allegedly similarly situated employee who is not Hispanic, received a salary increase in 1993, when plaintiff did not. However, the evidence does not support plaintiffs claim. See International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335 n. 15 (1977); Zahorik v. Cornell Univ., 729 F.2d 85, 91-92 (2d Cir. 1984).
"Although the ultimate burden in making a prima facie case is slight, the issue of whether fellow employees are similarly situated is somewhat strict." Belgrave, 1999 WL 692034 at *27; Brown v. Middaugh, 41 F. Supp.2d 172, 184 (N.D.N.Y. 1999). As the Second Circuit has stated, "[t]o be `similarly situated,' the individuals with whom [a plaintiff] attempts to compare herself must be similarly situated in all material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). More specifically, courts have stated the following:
[e]mployees are not `similarly situated' merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiffs, without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it.Francis v. Runyon 928 F. Supp. 195, 203 (E.D.N.Y. 1996) (quoting Mazzella v. RCA Global Communications, Inc., 642 F. Supp. 1531, 1547 (S.D.N.Y. 1986)).
Plaintiff contends that "[s]imilarity of job duties does not determine whether two employees are similarly situated and is in fact, irrelevant" and also "[w]hether two employees are similarly situated is a question for the fact finder to resolve." Pl. Br. at 9. To support her position plaintiff relies on Hill v. New York City Bd of Educ., 808 F. Supp. 141 (E.D.N.Y. 1992) and Hargett v. National Westminister Bank, USA, 78 F.3d 836 (2d Cir. 1996). Both these cases involve alleged discrimination in the course of disciplinary discharge, rather than in the failure to promote context. In disciplinary cases, if two employees, who are not similarly situated, are accused of the same offense and are disciplined differently, that may create a prima facie inference of discrimination. See Hill, 808 F. Supp. 149. By contrast, in failure to promote cases, the fact that a different employee was promoted is only relevant if he or she is similarly situated to the plaintiff. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)
Plaintiff cannot meet this threshold with regard to Jeanine Plummer. Whereas plaintiff reported to Hugh Baird in his capacity as Deputy Director, Plummer reported to Judy Perry, and to Clennie Murphy in his capacity as Commissioner. Gonzalez Dec. ¶¶ 5, 13-18, Ex. A 18-21. Plaintiffs unsupported assertion in her opposition papers that Plummer did not report to Murphy as his Executive Assistant is contradicted by Murphy's deposition testimony. Murphy Dep. 81-82, 231-232. "The nonmovant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quotations omitted).
Plaintiff and Ms. Plummer reported to different supervisors, worked in different divisions where different management styles existed, had different job descriptions and different responsibilities and therefore they are not similarly situated in all "material respects." Murphy Dep. 95-98, 105-107, 120-21, 161-62, 231-32, 236-39, 249-52. See Belgrave, 1999 WL 692034 at *27; Shumway, 118 F.3d at 64.
Plaintiff further argues that defendants' discriminatory intent is evidenced by the following: (1) her supervisor Clennie Murphy "had a racial animus" Pl. Br. 12; (2) "Murphy was known to have racial an [sic] ethic [sic] animus against West Indians" id. 18; and (3) plaintiff "was advised that [her] boss Clennie Murphy did not like West Indians." Pl. Aff. 3. Plaintiff offers no support for these assertions. Lanzo may not rely on her own conclusory allegations to
defeat a motion for summary judgment. See Gnazzo v. G.D. Searle Co., 973 F.2d 136, 138 (2d Cir. 1992) (the Court must "consider the record in the light most favorable to the nonmovant. However, the non-movant may not rest upon the mere allegations or denials of her pleading, but must set forth specific facts showing that there is a genuine issue for trial.") (quotation and citations omitted); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("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 [discrimination] cases.")
D. Constructive Discharge
Plaintiff claims that she was "constructively discharged" on the basis of her race and national origin in violation of Title VII. Compl. ¶ 36. However, "constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit voluntarily." Belgrave 1999 WL 692034 at *25 citing Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). Plaintiff never left her employment with Head Start and therefore her claim for constructive discharge is without merit.
VII. Plaintiffs State Law Claims
Plaintiff asserts state law claims for breach of contract, estoppel, employment discrimination under the New York Human Rights Law and intentional infliction of emotional distress. Plaintiffs pendent state claims cannot proceed because the District Court's subject matter jurisdiction is based upon an unsustainable federal claim, and the Court declines to exercise supplemental jurisdiction. See 28 U.S.C. § 1367 (c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well"); Tops Market, Inc. v. Quality Markets, Inc., 142 F.3d 90, 102-03 (2d Cir. 1998); Ryan v. Grae Rybicki. P.C., 135 F.3d 867 (E.D.N.Y. 1995).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted.
SO ORDERED.