Opinion
INDEX NO. 161923/2013
10-05-2018
VERONICA LUES, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
NYSCEF DOC. NO. 73 PRESENT: HON. VERNA L. SAUNDERS , J.S.C. Justice MOTION SEQ. NO. 001
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 were read on this motion to/for SUMMARY JUDGMENT.
Defendant, the City of New York ("City"), moves the Court for summary judgment pursuant to CPLR 3212 seeking an order dismissing plaintiff's complaint. Plaintiff, Veronica Lues, opposes the motion contending that as material issues of fact exist, summary judgment should be denied. After a careful review of the papers submitted, the motion is granted, in part and denied, in part.
Plaintiff, who is of Argentinian/South American descent, asserts that in December 2002, she and Emilio Gonzalez were hired for the position of Court Representative at the Bureau of Law & Adjustment ("BLA") within the Office of the New York City Comptroller ("Comptroller's Office"). At the time of their hiring, Ms. Lues was in her second year of law school and Mr. Gonzalez had a Juris Doctor degree, but was not yet admitted to the practice of law. Ms. Lues graduated from law school in 2005 and was admitted in 2008. Ms. Lues's complaint alleges that she maintained a greater caseload than Mr. Gonzales and was often selected to train newly hired employees, work that Mr. Gonzalez was never assigned to perform. In March 2011, Mr. Gonzalez was promoted, over plaintiff, to Senior Court Representative. Ms. Lues contends that similar to Mr. Gonzalez, both Mr. Ricardo Morales and Ms. Karen Sneed-Cohen, the individuals who promoted Mr. Gonzales, were of Puerto Rican origin. Ms. Lues argues that she was more qualified, had more seniority at the Comptroller's Office, and was an admitted attorney unlike Mr. Gonzalez.
In opposition, the City argues that Mr. Gonzalez's promotion was a result of a re-organization of the BLA. The City asserts that in or about April 2010, Karen Sneed-Cohen, in her capacity as Assistant Comptroller for the Bureau of Law & Adjustment, initiated a re-organization of the BLA as the current structure was not effective or efficient for settling claims. As part of the restructuring, Mr. Gonzalez was promoted to Senior Court Representative and received a concomitant salary increase. Ms. Sneed-Cohen asserts that she found "Mr. Gonzalez highly motivated, bright, knowledgeable, and unafraid to make decisions," while she found plaintiff "lacked the leadership skills and assertiveness necessary to perform in a management role." See Defendant's Exhibit V, NYSCEF Doc. 44, Affirmation of K. Sneed Cohen. The City maintains that the restructuring affected many individuals in the Litigation Unit who were either re-assigned, promoted, demoted or transferred during the reorganization of BLA. These individuals included Lynell Canagata, an African-American woman, who was promoted to the title of Director of Litigation.
Plaintiff asserts that thereafter, Ms. Sneed-Cohen demoted her from her office in the Litigation Division to a cubicle in the Law Division. Mr. Robert Palmer was also transferred to the Law Division in early 2012. Plaintiff avers that both she and Mr. Palmer were, in effect, granted the same job function and responsibilities but Mr. Palmer earned a salary of $124,000.00 while she was compensated only $69,700.00. Moreover, plaintiff asserts that she was given a greater caseload. In sum, plaintiff argues that she was denied equal terms, conditions, and privileges of employment in connection with her compensation when compared to other male counterparts.
The City contests plaintiff's claim that she was demoted. The City argues that plaintiff requested to be transferred as she no longer wanted to work as a Court Representative in the Litigation Unit. The City points to plaintiff's deposition testimony where she stated that she was "very unhappy" within the Litigation Unit, did not "really want to be reporting to Emilio," and was "grateful that I didn't have to work under Emilio." After expressing her concerns, plaintiff was later moved to an office. Moreover, the City avers that's plaintiff's pay disparity with other employees wass justified when consideration is given to differences in plaintiff's position, seniority, experience, duties and responsibilities, and skills, as compared to Mr. Palmer and Mr. Clinton.
Finally, plaintiff asserts that on February 26, 2015, a male-only committee constituting of John Graham, James Cox, and Vincent Rivera, whom was of Puerto Rican heritage, selected Mr. Gonzalez as BLA's Property Damage Division Chief. Plaintiff asserts that she interviewed for the position and was better qualified for the position than Mr. Gonzalez. Plaintiff asserts that Mr. Gonzalez was nevertheless selected for the position over plaintiff due to her gender, national origin, and in retaliation. Shortly thereafter, John Graham and James Cox notified plaintiff she would be assigned additional work involving special education cases, without any resulting salary increase. Plaintiff avers that until Mr. Graham and Mr. Cox learned about her lawsuit, they both praised her work performance verbally and in writing.
In response, the City argues that the hiring committee recommended Mr. Gonzalez for the position because the committee found him highly motivated and on the basis that he had extensive supervisory experience with tort claims, was knowledgeable with respect to property damage caseloads, and had a very strong interview. In contrast the City avers that Ms. Lues did not meet the minimum qualifications for the job as she did not have any formal supervisory experience and lacked the skills and qualities necessary to successfully perform in the role.
The standards for recovery under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) are both analyzed pursuant to the burden-shifting framework established in McDonnell Douglas Corp. v Green, 411 US 792 [1973]; See also Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of the AFL-CIO, 6 NY3d 265, 270 [2006]; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). Under McDonnell Douglas, the plaintiff has the initial burden to establish a prima facie case of discrimination. To meet that burden, plaintiff must show that he or she is a member of a protected class, was qualified for the position held, was terminated from employment or suffered another adverse employment action, and the termination or other adverse action occurred under circumstances giving rise to an inference of discrimination. (See Stephenson, 6 NY3d at 270, citing Ferrante v American Lung Ass'n, 90 NY2d 623, 629 [1997]; Forrest, 3 NY3d at 305; Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 965 [1st Dept 2009]).
If plaintiff makes this prima facie showing, the burden then shifts to the employer to rebut the presumption of discrimination by demonstrating that there was a legitimate and non-discriminatory reason for its employment decision. If the employer articulates a legitimate, non-discriminatory basis for its decision, the burden shifts back to the plaintiff "to prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination" (Ferrante, supra; see also Texas Dept. of Community Affairs v Burdine, 450 US 248, 253 [1981]).
In addition to analyzing cases under the McDonell Douglas framework, courts have also held that NYCHRL claims must be analyzed under the somewhat different 'mixed-motive' framework recognized in certain federal cases. (See Melman, 98 AD3d at 113; Godbolt v Verizon N.Y. Inc., 115 AD3d 493, 495 [1st Dept 2014]; Carryl v MacKay Shields, LLC, 93 AD3d 589, 589-590 [1st Dept 2012]). Therefore, when a defendant has produced evidence of a legitimate reason for its action, "[t]he plaintiff must either counter the defendant's evidence by producing pretext evidence (or otherwise), or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination." (Bennett, 92 AD3d at 39; Melman, 98 AD3d at 127).
In terms of gender and nationality-based discrimination, the Court finds that plaintiff has not met her burden under the McDonell Douglas framework. Plaintiff's claims that she was passed over for promotions and compensated less than her male counterparts because of her gender and national origin is unsubstantiated. For example, plaintiff provides no evidence demonstrating that Mr. Gonzalez's promotion to Senior Court Representative was because he is a male or based on his national origin. Plaintiff's claim is also doubtful given the fact that Ms. Sneed-Cohen, a key decision-maker in the promotion of Mr. Gonzalez is a woman, and the fact that Ms. Lynell Canagata, an African-American woman, was promoted during the re-organization of the Litigation Division. Moreover, Mr. Gonzalez's national origin being the same as two individuals who approved his promotion is insufficient, without more, to establish a prima facie case of discrimination based on national origin. The dearth of evidence provided by plaintiff, beyond her own unsubstantiated allegations, in this matter makes it impossible that a reasonable person could infer gender or national origin discrimination in her getting passed over for certain promotions within the Comptroller's Office. (See generally Chin v New York City Hous. Auth., 2011 NY Slip Op 31900(U).)
Similarly, plaintiff's claim that she was compensated less than her male counterparts as a result of her gender is also unsubstantiated. While the Court recognizes the reality of contemporary history in which women are compensated much less than men performing in similar positions, in this case, plaintiff has not made a showing she performed the same functions as her named counterparts. For example, Mr. Palmer retained his title of Senior Counsel upon his transfer to the Law Division, which was different from plaintiff's. Moreover, the City argues that Mr. Palmer's salary reflected his significant experience as an attorney, his exceptional legal mind, ability to take initiative with his legal analysis and evaluation of claims, and his ability to make decisions without intensive supervision and direction as a basis for his salary.
Although the Court finds plaintiff failed to meet her burden of establishing a prima facie showing of discrimination based on gender and national origin, the Court finds that plaintiff has nevertheless proffered evidence suggesting retaliatory measures on the part of defendant. To establish a successful claim for unlawful retaliation, a plaintiff must show that 1) plaintiff engaged in a protected activity; 2) plaintiff's employer was aware that plaintiff participated in such activity; 3) plaintiff suffered an adverse employment action based upon plaintiff's activity; and 4) there was a causal connection between the protected activity and the adverse action. (Bendeck v NYU Hosps. Ctr., 77 AD3d 552 [1st Dept 2010].); Artis v Random House, Inc., 936 NYS2d 479 [Sup Ct, NY County 2011].)
Here, plaintiff has proffered evidence that she was not selected for various positions she applied to or for which she was interviewed. Both plaintiff and Mr. James Cox provided in their respective affidavits that Ms. Lues was being groomed for promotions to fill higher positions. Yet, Ms. Lues never attained those positions. She argues that before Mr. Graham and Mr. Cox learned of her lawsuit, she was in great rapport with them. For example, Ms. Lues submitted Probationary Reports written by Mr. Cox and co-signed by Mr. Graham documenting her high qualities as a worker. However, Ms. Lues maintains, as evidenced by their affidavits, that their sentiments shifted once they learned of the suit. Specifically, in his affidavit, Mr. Cox stated that
"I discovered soon after her transfer to the Law Division, however, that Ms. Lues required a lot of direction and support to complete her assigned cases. Her written work product consistently required extensive and substantive edits. She has been unable to exercise independent judgment and has repeatedly sought guidance to finish her tasks. Despite constant training, patient guidance, and repeated direction she received. Ms. Lues has failed to apply previous guidance and direction to analogous cases subsequently assigned to her. She appears fearful of making mistakes and she is reluctant to make decisions on her own."These statements are inconsistent with those made in plaintiff's probationary report which was signed prior to this lawsuit. The probationary report contains phrases such as, Ms. Lues "is conscientious and diligent" and "demonstrates good judgment." Accordingly, a sufficient basis exists on this record to support a retaliation claim. Based on the foregoing, it is hereby
ORDERED that the City's motion for summary judgment is GRANTED as to plaintiff's causes of action for gender and national origin discrimination and DENIED as to plaintiff's cause of action for retaliation, and it is further
ORDERED that all parties are to appear for an early settlement conference on January 15, 2019 at 9:30 AM, Part DCM, Room 103, 80 Centre Street, New York, NY.
ORDERED that any relief not expressly addressed herein has nonetheless been considered and is denied and this constitutes the decision and order of the Court. October 5 , 2018
/s/ _________
HON. VERNA L. SAUNDERS, J.S.C.